Whether or not the management of Hair will abide by the rule of the Massachusetts Supreme Judicial Court and clothe the show's performers and exise sex scenes, or refund the reported $600,000 advance sale is the question in Boston. The rock musical, which closed and draped the front of the Wilbur Theatre in funeral black in protest rather than comply with the ruling, remains shuttered as a special panel of three United States Court judges refused Friday (17) to issue a temporary injunction to permit imediate resumption of performances.
Jusice Frank M. Coffin, of the U.S. Court of Appeals, said he was taking the case under advisement to consider points raised by council for hair in a single decision rather than piecemeal. He will speak for the triple bench. Concurring with Judge Coffin were U.S. District Court Judges W. Arthur Garrity, Jr., and Hugh Bownes. Henry Monaghan, attorney for the show argued the need for a temporary injunction, claiming "irreparable injury" economically was being caused as long as the musical remained closed.
The court also ruled thatdistrict Attorney Garrett H. Byrne, th defendant in the U.S. District COurt action, could prosecute the cast or producers if the rock musical runs unexpurgated. In the meantime, efunds are still going on at the Wilbur, and advance sale has stopped.
The effect of the Supreme Court's decision and the refusial of the Federal Court to issue a temporary injunction permitting the show to run, finds exotics and motion pictures with nude scenes in a curious position. Operators of nitery spots featuring exotics and strippers report that the "law" is now becoming "very technical."
One nitery manager said exotics must now step behind a screen when they discard an article of clothing. No longer are they stripping to the buff and flashing is out. Motion picture exhibitors are clipping nude scenes from their films and running scared.
At the hair hearing, the courtroom was jammed and all of the cast was present, plus a contingent of legal attorneys and law students. Points cited by Gerald A. Berlin and Howard Katz in their arguments to enjoin the District Attorney were that state statutes relating to lewdness, indecent exposure, as related to the musical are unconstitutional, and if upheld would be in violation of the First and 14th Amendments of the U.S. Constitution. A permanent injunction was also sought.
At one point, Assistant District Attorney Joseph Nolan, representing his superior, said he would accept a test case of one performance to provide proscecution either by arrest or indictment. Monaghan, also a law prof. at Boston University, refused. He argued that if the test case were permitted, the musical should be permitted to run until the case should be decided. A suggestion by Judge Garrity that the producers resume the show, but with the cuts and clothes on the performers until the case should be decided was also rejected by Hair. counsel.