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4.2.12
WC: 191694

I am Curious Yellow

My initial professional encounter with the First Amendment involved a direct challenge to the concept of offensiveness in the context of a Swedish anti-war film called I Am Curious Yellow. The story involved a young girl coming-of-age both politically and sexually during the Vietnam War. It included several scenes in which she was nude and engaged in sexual activities. By today’s standards, it could be shown on cable television and in art theater with an R rating, but in the late 1960s, it was scandalous. (The young girl who played the lead role, and also starred in an Ingmar Bergmann film, recently died at the age of 66, thus bringing home to me how much time had passed).

The film was seized by US Customs and banned throughout the country. Grove Press, a radical publishing house in New York, owned the film and retained me to argue for its protection under the First Amendment. I don’t recall whether I charged a small fee or whether I took the case pro bono, but I put everything I had into my new found role as part time litigator on behalf of my beloved First Amendment.

I decided on a bold challenge to the traditional power of the government to censor obscene material—indeed to censor any “offensive” material shown only to people who aren’t offended by it. Instead of arguing that the film itself was not obscene, I decided to argue that it was none of the government’s constitutional business to act as a board of censors—to tell its adult citizens what they could and could not watch in the privacy of a movie theater that was off limits to children and that did not advertise in a pandering manner that would reasonably offend people outside the theater. There was no legal binding precedent for such a challenge. Indeed the Supreme Court had just recently reaffirmed the power of the government to ban and prosecute obscenity, as an exception to the freedom of speech. In this respect, my bold and unprecedented challenge was much like the one I helped Justice Goldberg devise against the death penalty, with the difference being he was a Justice of the Supreme Court, while I was a novice lawyer litigating my first ___ case. What both challenges shared was a large dose of chutzpah. The leading case affirming the power of government to censor porn was Roth v. United States. But in a more recent case, Stanley v. Georgia, the court carved out an exception to the exception. A divided court ruled, in an opinion by Justice Thurgood Marshall, that the state had no power to prosecute an adult for merely possessing obscene material—in this case some old stag films—in the privacy of his home. The ruling was a combination of 4th Amendment (the right of privacy in one’s home) and 1st Amendment principles and was somewhat unclear about its reach, because it went out of its way to reaffirm the holding in Roth that obscenity was not protected by the First Amendment.

I decided to try to use the Stanley case as a battering ram against the very idea that government has the power to tell adults what films they could watch in a theater. The mechanism I chose for this attack was to challenge the constitutionality of the Massachusetts obscenity statute under which the owner of an art theater located across the street from the famous Boston Symphony Hall was being prosecuted for showing I Am Curious Yellow.

In those days, a challenge to the constitutionality of a state statute could be brought in front of a three judge district court with the right to appeal its ruling directly to the Supreme Court. The

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