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4.2.12
WC: 191694

Mr. DERSHOWITZ. It seems to me you have an interest but no right…I can understand how you would be offended by that. But one of the prices of living in a complex society, with freedom, is for you to have to simply tolerate the fact that you know that certain people are engaging in conduct that you don’t approve of. That was precisely the argument made by the State of Connecticut in the birth control [clinic] case.35 They said that people of the State of Connecticut are offended by knowing that this kind of immoral conduct is being engaged in by people, married people, all over the State. And the Supreme Court did say that this is something that members of the society must tolerate in a pluralistic society. There are a great many things which offend me, to know that they’re going on in peoples’ homes—I have an interest in that, but I don’t think I have a protected constitutional right [to be] disturbed about what’s going on.

Judge Julian asked whether “that interest [should] be legally protected?”

Mr. DERSHOWITZ. Now, there may be ways of protecting it, perhaps through zoning regulations…

But if the issue is total banning on the one hand as against your interests being protected against knowing people are doing this kind of thing, I would submit that the Constitution has a clear answer to that. It must permit the film to be shown in a way to minimize your exposure to it and to permit you both fully to see and to avoid being exposed to the contents of the film.
So I do submit that your Honor does have an interest and I can understand it. But I think you will realize that on balance this interest could be used to upset almost every kind of freedom that Americans ought to be at liberty to engage in.”

Judge Aldrich seemed intrigued by our argument, while continuing to press me hard on its implications. At one point Judge Aldrich asked me what I would do if the Supreme Court ruled against my theory. “Will that be the end of the road…?”

I responded: “Well, I, as an attorney, will continue to urge the Court to accept this principle because I think it’s the correct approach to the regulation of obscenity.”

Following three days of intensive argument and questioning, the three judges issued a decision written by Judge Aldrich. He bought my argument totally. He began by accepting my assumption about the nature of the film:

For purposes of this case we assume that the film is obscene by standards currently applied by the Massachusetts courts.

He then went on to discuss the implications of the Stanley decision, which the prosecutor had argued was “irrelevant” to this case and which, at the beginning of my argument, thought was not relevant to movie theaters:

35 Griswold v. Conn

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