The Boston production of Hair which has been closed for three weeks, may reopen tomorrow (Wed.) of the District Attorney who went to Washington to appeal to the Supreme Court last week doesn't find some way to prevent it. If one of the high court justices doesn't grant the D.A.'s plea, the show will relight.
The rock musical, which is figured to have been losing $70,000 a week in possible box-office take voluntarily while awaiting its appeal from the state Supreme COurt ruling that it clothe the show's nude scene and excise simulated sex acts, won a substantial victory last Wednesday (6). The decision of three federal judges barred Suffolk County District Attorney Garrett H. Byrne from proscecuting the show's producers for obscenity and the cast for indecent exposure.
The order was stayed for a week to allow the D.A. to appeal to the Supreme Court. If the high tribunal upholds the lower court decision barring the D.A. from prosecuting he show, management will reopen the original version. If the decision goes the other way, it is understood the show will still reopen and cuts will be made and nude performers will be clothed.
When the three Federal judges in a split decision issued the injunction against the D.A., he immediately said he would appeal to the Supreme Court within a week because the decision involves a constitutional question. Gerald A Berlin, council for the producers, said the show could reopen tomorrow if the Supreme Court should rule favorably.
The injunction was approved on a split decision. Judge Frank M. Coffin, of the U.S. Court of Appeals, and New Hampshire Federal Judge Hugh H. Bownes joined in the majority opinion, with Judge W. Arthur Garrity dissenting.
The effective date of the injunction was delayed to Wednesday to give Byrne an opportunity to seek a stay of the injunction pending an appeal from U.S. Supreme Court Jusitce William J. Brennan, Jr., who has jurisdiction over the First District. If the D.A. is unsuccessful in having the injunction stayed, the show presumably could go on pending the outcome of any appeal to the full bench of the Supreme Court.
The 23-page majority opinion said the production has lost weekly box office receipts of about $70,000 weekly since Hair closed April 10. "It also is making refunds or exchanges of tickets sold and is no longer making advance sales," the court found. "They had anticipated a lengthy run in Boston, having at the time of filing this suit advance ticket sales of approximately $600,000." the judges said.
The decision said that the U.S. Supreme Court "has not recently had occasion" to rule on the constitutionality of Massachusetts' "open and gross lewdness" statutes as they apply to the live theatre. "We begin with the proposition that live theatre productions, like movies," the jurists said "come under the influence of the First Amendment, which guarentees freedom of speech and expression. All we hold is that these laws" state statutes on obscenity "authorize greater state interference with the live theatre than the First Amendment allows."
In disagreeing with the majority, Judge Garrity said "I believe in view of the recent trend towards nudity and performance of sexual acts on stage, that an occasion may arise in which a prosecution under a state obscenity statute "may be warrented and brought without conflicting with the First and Fourteenth Amendments." The Fourteenth Amendment spells out the rights of citizens.
Judge GArrity stressed that whether the Boston production of Hair presents such an occasion "is not a controlling issue." He pointed out that the management warbned patrons in advance of the show's contents. He conceeded that most theatregoers are probably aware of the mass nudity scene at the end of the first act, but he doubted if they were aware of another nude scene in the second act, or of "several simulated sex and unatural acts."
JUdges Ccoffin and Bownes wrote in the majority opinion that there is a "chilling effect on the First Amendment right of producer and others engaged in the theatre in Massachusetts and the theatre going public in the New England area." They pointed out that the cast of more than 100 "face up to three years for sex offenses and, if the show closes, loss of their livlihood.
"When faced with prosecution intent onextirpating lewdness in accordance with the mandate of the Supreme Judicial Court...actor and producers will eith avoid Boston altogether or will steer clear of the forbidden zone byexercising constitutionally protected material in order to avoid the risk of a three-year prison term. Either result is an offense to the First Ammendment."
The two jurists concluded that the people of New England and Boston are bring denied a chance to judge the merits of hair for themselves because the state statute authorizes "greater state interference with the live theatre than th First Ammendment allows."
Garrity argued "In my opinion the statute proscribing open and gross lewdness is susceptible to a construction by the MAssachusetts courts which would save it from oevr- broadness as applied to the theatre, and the courts should therefore abstain from ruling on its constitutionality."
Byrne had assured the court that any prosecutions would be founded on Section 16 and the common law on indecent exposure. Plaintiffs in the action for an injunction were Natoma Proiductions, Inc., P.B.I.C., Inc., Frank Butler, Marjorie Dunaway, Jory Richardson, Brooke Lappin, Morton L. Leavy, Donald Pirabassi, Marlena Langston. (Editors Note: The last three names are badly printed, and the spellings here are best guesses from what can be seen)
The injunction, banning the D.A. from prosecuting under section 16 of massachusetts laws which deal with lewd and lascivious behavior, and under Common Law, indecent exposure, also applies to folms. Film exhibitors have been snipping nude scenes out of their pictures and running scared looking to the judges decision.
Performances of Hair at the Wilbur Theatre were voluntarily halted when the petition for an injunction was presented to the panel. This move followed Judge Garriry's refusal April 13th to issue an injunction. The rock musical opened February 22. A few days later Byrne warned that anyone involved with the production would be prosicuted for obscenity unless clothes were worn by the cast for the entire show and certain scenes were changed.