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4.2.12
WC: 191694

Deep Throat: Why I Chose Not to Watch It

My initial victory in the I Am Curious Yellow case—getting a three judge court to declare
unconstitutional all obscenity laws that applied to adults-only theaters—made me something of a
hero in the “adult film” industry—and something of a pariah in the radical feminist community.
(More about the latter soon.) Many “obscenity” clients came my way, including the musical play
Hair which was “banned in Boston” and several “soft core” films such as the very forgettable
“Belinda”36 and the unforgettable hard core film, Deep Throat.37

I’m told that Deep Throat is a very hard core and very bad movie. I can’t personally attest to
these claims because, to this day, I have not seen it.38 I avoided seeing the film not because I’m a
prude—I enjoy a good erotic movie as much as the next guy—but rather because I wanted to
make a point about the law of obscenity: the decision to watch or not to watch a particular film
should be a matter of choice for every adult citizen. Just as I told the judges in the I Am Curious
Yellow case that they didn’t have to view the film in order to rule that an adult had the
constitutional right to view it in an adults-only theater, so too I had the right to argue that
position without myself viewing Deep Throat. To paraphrase my earlier case, I was “curious”
about Deep Throat, but cared more about the principle of choice. I also believed that my not
viewing the film was a good tactic that helped to dramatize my point.

I decided to use that tactic in two separate cases involving the Deep Throat case. The first was
the prosecution of porno-actor Harry Reems for his role as an actor in the film. Reems was the
first actor in history ever to be prosecuted for the crime of obscenity. He was charged with
participating in a nation-wide conspiracy to transport an obscene film in interstate commerce.

The United States government charged him with conspiracy because Reems himself had nothing
to do with distributing the film in interstate commerce. As the prosecutor acknowledged:

“[Reems] made the film, got his money and got out back in 1972, that is, he didn’t do
anything else as a part of the conspiracy, he didn’t do any more overt acts, he didn’t
participate any further, and the question arises why in the thunder does he wind up being
charged [with acts that took place] four years later?”

His answer was that “once a person joins a conspiracy, he is liable for everything that happens in
that conspiracy until it is ended.” (Reems once asked me whether he could have been charged
with murder under the prosecutor’s theory, if some strong-arm methods used by the distributors
had resulted in a death years after the film had been completed. I told him that—under the
prosecution theory—he could charged with that crime.)

36 See The Best Defense pages 174-78.
37 I was also involved—either as a defense lawyer, consultant or commentator—in the defense of several magazines
and books. See e.g. Dershowitz, Shouting Fire, pages _______.
38 During a preview of a film off Broadway about the Deep Throat controversy I saw some soft core excerpts. They
were God awful.

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