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4.2.12
WC: 191694

Mr. DERSHOWITZ. Well, I would submit that most politicians that get up and
make political speeches are doing it for a motive which is not unrelated to that.
Yet we don’t probe the motives of Presidents and Vice-presidents and Senators in
speaking. Nor should we probe the motives of newspaper publishers and film
producers.

JUDGE JULIAN. Perhaps they should be probed.

Mr. DERSHOWITZ. I think the First Amendment would be virtually a dead
letter; [if] we would only permit people to speak who spoke simply for art for art’s
sake or politics for politics’ sake…
Here we’re talking about something where money is being paid in order to show
the film and nobody can suggest that the film should be shown in this country for
free or at cost. There would simply be no films being manufactured in this country
and that aspect of the First Amendment will have substantially suffered.

I then returned to my distinction between an enclosed theater and an open display.

If Grove Press were to put up a billboard…above a large area where people
congregate and there were to be an alleged obscene picture on the billboard, and
the state were to try to enjoin that, I would have to [concede that there might be
some harm to people who didn’t want to be exposed to obscenity.]

JUDGE JULIAN. That’s a very generous concession.

Mr. DERSHOWIZ. But in this case I do submit nobody is being exposed to
anything that he doesn’t want to be exposed to at all. The only thing that people
are being exposed to is the fact that they know that a film is being played in Boston
or in Springfield, and that fact, if it offends people, is not entitled to constitutional
protection so long as they can avoid being exposed directly to the contents of the
film.

Judge Aldrich was intrigued by this last point and said that he wished to pursue it further. I knew
I was in for some tough questioning:
JUDGE ALDRICH. I wish to pursue that point. I happen to be very straight
laced. Every time I walk down through Harvard Square and I see there is a movie
going on there that I know is obscene, of course, I don’t have to go in. I can
protect myself. But I’m offended by the fact that I see all these students who are
age 21 and a half going in and that we are maintaining in my home town, in which
I have such great pride, we are maintaining this house—I use the word “house”
advisedly—filthy pictures are being shown. Do I have any interests or rights?

Judge Aldrich had put his finger directly on the vicarious offensiveness rationale for
censorship. I needed to come up with an answer that didn’t devalue his concerns (and his
grandmother’s).

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