High Court Critical Of Disputed Film

High Court Critical Of Disputed Film
By Mary Wallace victed by a three-judge criminal

K (County Government Reporter) court On June 12, 1964, and all

Prosecuting Attorney William were given suspended sentences.
F. Delhey has found an unex-F,?i^h admitted being familiar
pected ally in his prosecution film before the show-
involving the film, "The Flam- u-o

ing Creatures." The three appealed to the

That ally is U.S. Supreme U.S. Supreme Court, challeng-
Court Chief Justice Earl War- ing both the finding of the film
ren who in June wrote that the to be obscene and alleging that
film does not come within the the trial court erred in not per-
constitutional protections of free mitting "expert" testimony on
speech and press. This opinion whether or not the film offended
is expected to '^"ici-or Delhey's "the contemporary community
contention the; 'i-n seized] standards."

in January WiKn „. was being The nation's highest court de-
shown by the University's Cin- nied the appeal on motion of
ema Guild is obscene. New York County District At-

The Supreme Court ruling wasitorney Frank S. Hogan who had
on an appeal from New York been upheld throughout the New
City where the film was shown York state courts. The dismis-
at a commercial theatre onlsal was based on agreement
March 3, 1964. jthat the question was moot be-

Jonas Mekas who arranged the cpuse, in effect, the sentences
showing, Kenneth Jacobs who bad already been served,

showed it, and Florence Karpf, However, two Justices who
the ticket seller, were all con- often give liberal interpretation

to the First Amendment protec-
tions in obscenity cases made it
clear that if they had accepted
the appeal they would have
found the film obscene and af-
firmed the convictions.

Ti.

Chici ..• : »,-.-
tice William Brennan. Justice
William 0. Douglas disagreed
that the issue was moot, but did
not indicate which way he would
find in th-3 case. Only Justice
Abe Fortas said he would sup-
port reversal of the convictions.

Warren agreed with Douglas
that the appellants should have
their day in court. However, he
left no doubt of his opinion on
the merits of the case. He wrote:

"Since I believe tha'
peal can't be dismissed
I believe the court must consid-
er the case on the merits.

"I am satisfied that these con-
victions should be affirmed.

"Under the standards set

fo"th by the court in Roth vs.
the United States this film is
not within the protections of the
First Amendment. We formu-
lated the test in that case as
being whether the material was
utterly without social value,
whether it went substantially
beyond the customary limits of
candor in representing sexual
matters and whether to the av-
erage person, applying contem-
porary community standards,
the dominant theme of the ma-
terial taken as a whole appeals
to prudent interests.

"This film falls outside the
range of expression protected
by the First Amendment accord-
to the criteria set out in Roth.
For the reasons I have given,

would consider this appeal on
trie merits and I would affirm
the convictions," the chief jus-
tice wrote.

Assistant Prosecuting Attorn-
ey Thomas F. Shea and Detec-

tive Lt. Eugene L. Stauden-
maier, who seized the film in|
the University's Architecture'
Auditorium last January, re-
turned today from Washington,
D. C. where they compared the
film they had confiscated with
that which had been shown to
the Supreme Court.

Shea said today the film is
exactly the same.

The seized film has already!
been shown in the Ann Arh;

Municipal Court examination 111.
charge: it three i^Jniver-
sity stm nnd their ^faculty
advisor that they showed an
"obscene, lewd, filthy and in-
decent motion picture.''

The examination is scheduled
to resume in August.

Later this month, a hearing
in Federal District Court will
resume on the Cinema Guild's
suit for an order to return the
film and forbidding the police

uted Film

to seize oft^r Cinema G
films. "The Flalnlllg l^Teatures
I was shown as part of a series
of "experimental" films by the
student group.

In the New, York case, noted
defense attorney Emile Zola
i Berman claimed that the New
York obscenity law is uncon-
stitutional and also contended
that the three-judge criminal
court erred.

that at the trial, the
.11'- i:< red no evidence on the
issue of obscenity other than 11 '
film itself. It erred by rejecting
"expert" testimony from pei^
sons in the theatre, the arts,
education and psychiatry. One
of the rejected witnesses was
critic Susan Sonta^ ' -
praised the film in n; 1.1 i)!ii»-
lications.

Berman contended that New
York's test for obscenity vio-
lates the First Amendment to

Constitution. Its "per se
tesKis that a film is obscene
if it\portrays any conduct
which, if actually engaged in
publicly, would v; late
statute or public "'• -i. work
should be jud;., .s whole,
he- said. The teal i<,.iccts con-
sideration of artistic merit, in-
tellectual content and cultural
vdiues, Berman argued.

The New York lawyer also|
claimed that the court should]
'h""" considered the defendants'
' 'ct as a wh.-'le and not just
-iic contents of )i!0 ^"i He
|aid the crimin im-
posed criminal ^^iicliu-.i., on
Jhose ^»od faith sought
t" ^erci^v, their First Amend-
rights.

, ..<;• defense intended to show
that they had not attempted to
''pander to prur'ent interests,"
that the showing was sponsored
by the Film Makers Coopera-

tive for thfe benefit of Jack
Smith who made this and other
"experimental" films, that the
cooperative puts on various pro-
grams and seeks distribution of
its members' "avant garde"
films, and that the group "had
made important contributions to
the cultural life of our country
and in recent development of
the cinema in the United
States."

I Berman said the defendants
wanted to show "the role of the
Film Makers Cooperative in the
cultural life of New York and
'development of H art,
Itheir sincerity of p.:.,•..'_', the
recognition members of the
group have had; the sincerity
of the film's makec and his ar-
tistic standing, the advanced au-
dience to which the work was
primarily directed, and that
they were not panderers of
smut."

Section Three

THE ANN ARBOR NEWS

Ann Arbor, Michigan, Thursday, July 13,19^7

Pages 23 to 34