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4.2.12
WC: 191694

JUDGE ALDRICH: He’s looking after my grandmother who went to see Sur Les Toits De Paris.

MR. DERSHOWITZ: The only valid basis for punishing obscenity …is to protect people [like Judge Aldrich’s grandmother] from being offended, from having something thrust on them in an unwilling manner and also to protect youngsters.

When I then advised the court that under my theory, the judges would not have to view the film. Judge Aldrich immediately interjected: “Are you trying to bribe us to decide the case so we don’t have to see the film?…I will admit that’s the best bribe I have ever been offered.”

Judge Julian did not seem to understand my argument. He kept asking me whether I wanted the court to assume that I Am Curious Yellow was not “pornographic.”

I tried to explain:

“It’s exactly the opposite. We do not ask you to decide whether or not the film is pornographic. We are asking you to decide that the film shown in a nonobtrusive way, advertised in the way that it’s been advertised right from the beginning, with no hint, no suggestion of obscenity or prurience, played, if you wish, with the warning being given, although there have been no complaints by a single viewer of the film that he’s been offended—because your Honor is of course right: everybody knows what they’re going to see—exhibited in that manner, the film is protected by the First Amendment without regard to its contents.”

Judge Julian then questioned me about whether this case was really about money, rather than freedom of speech, because Grove Press was a commercial distributor of films for profit:

JUDGE JULIAN. These people are exhibiting this film for the box office receipts, are they not as a fact?
Mr. DERSHOWITZ. The New York Times is selling its papers for the box office receipts as well.
JUDGE JULIAN. Let’s talk about this film not the New York Times. Isn’t this film being exhibited for the primary purpose and perhaps…for the only purpose of getting money at the box office? Isn’t that the actual fact?
Mr. DERSHOWITZ. Your Honors, that fact is utterly irrelevant, I would submit.
JUDGE JULIAN. But is it the fact though?
Mr. DERSHOWITZ. I don’t know. I can’t probe Mr. Rosset’s mind, who is the president of Grove Press…I think he probably has very mixed motives.
…
JUDGE JULIAN. That’s what troubled me immensely, to see the First Amendment used for the sole and obvious purpose of making a profit and for no other purpose.

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