By John C. JohnsonArticle © 1999 John C. Johnson
Department of Special Collections
Hair was scheduled to open at Boston's Wilbur Theater on February 20, 1970. At the time, Boston had a city censor who judged the content of films and theater productions. The censor had heard of Hair's impending opening and raised the concern that such a controversial show would not only be an affront to the Boston community, but could possibly lead to other notorious shows, such as Oh, Calcutta opening in Boston.
The censor's views reached the ears of Louise Day Hicks, who was challenging veteran Suffolk County District Attorney Garret Byrne in that year's campaign. A strong woman with a legal background, Hicks used the censor's concern as a point on which to challenge the District Attorney. After seeing a preview performance of Hair, Byrne immediately declared that the show desecrated the American flag and contained scenes full of "lewd and lascivious" acts. Byrne began working to prevent Hair from ever opening to the public because the show's previous successes and the number of advance tickets already sold in Boston indicated that if Hair were to open in Boston, it would be a huge hit.
As word of Garret Byrne's plans to stop the show spread, the Boston cast of Hair, the show's producer Michael Butler, and the Wilbur Theater's owners began a frantic search to find the right person to defend their show. With a recommendation from Massachusetts State Bar Association President and recognized Constitutionalist, Robert Meserve, they found their representative in Gerald Berlin.
Meserve thought Berlin a fit for the task because he was a respected lawyer with connections throughout the Boston community and because Berlin had served as Attorney General for the American Civil Liberties Union and had extensive experience with cases dealing with the First Amendment. Berlin listened to the situation described by Butler and the other representatives of the theater and cast and decided to accept the case.
Berlin recognized that the task before him would be no easy thing to overcome, but began to mobilize a team of lawyers to assist him with the case. He found Harold Katz, who had served as the mayor's council and was an excellent trial lawyer. Next was Henry Monahan, a professor of Constitutional law at Boston University, and finally Alan Derschowitz, a graduate of Harvard Law School. Once his task force was assembled Berlin began working to save Hair.
Through his connections in City Hall and the police department, Berlin learned that the police were not interested in dealing with such a decidedly political issue when they had more pressing duties besides citing actors for indecent exposure. After determining that for the moment the police were not an issue, Berlin and his team began to plan their strategy by approaching the two main questions before them. First came the issue of whether or not this case should be heard at the state or Federal level.
The rule of abstention stated that a lawyer must exhaust all options at the state level before they could appeal to the Supreme Court. Without much time before the scheduled opening of Hair, Berlin's team decided to seek a legal injunction against criminal prosecution. A rarely sought procedure, injunctive relief was difficult to earn. The request would be presented before one Superior Court Judge who would then decide whether or not to grant the injunction. The group prepared Harold Katz to argue their position and also brought in several theater critics from Boston and the New York Times to defend Hair's worth as art and entertainment. The tactic paid off when the justice granted injunctive relief in favor of Hair. The performers began preparing for the show's opening once again.
The small legal victory was short lived. First, Alan Derschowitz left Berlin's legal team. Secondly, seven Massachusetts State Supreme Court Justices attended a preview of Hair at Garret Byrne's insistance. The show left them mortified and without hesitation overruled the injunction granted by the single judge. Then on April 9, 1970, the State Supreme Court drafted a memorandum opinion declaring that Hair did constitute "an obscure form of protest protected by the First Amendment" and that it could continue under the conditions that all performers had to be reasonably clothed at all times during the show, and that all simulations of intercourse or any deviation of sexual intercourse were to be eliminated from the performance.
On April 10, Berlin began working on an appealing the opinion of the court, the Hair performers voluntarily agreed to close the show until they were allowed to put on the show without having to submit to any imposed conditions. During this period Michael Butler personally subsidized the theater and lodged the performers in local hotels.
Berlin took the appeal to a three judge Federal Court consisting of two judges from the Court of Appeals and one District judge. Henry Monahan presented a long argument on abstention which lead to a 2-1 decision in favor of Hair's appeal and allowing Berlin to present the case before the Supreme Court in Washington, D.C. since all other options had finally been used up. Everyone involved with Hair in Boston was waiting to see if the opinion drafted by the Massachusetts State Justices would stand up in the highest court in the land but they were kept waiting as the Justice assigned to the case fell ill and could not immediately deal with the case.
During this time, Gerald Berlin was not only overseeing the appeal, but also coordinating the press duties surrounding the case. He took advantage of his connections at the Boston newspapers and made sure that the story was getting attention not only in Boston, but in surrounding areas as well. Berlin was frequently asked to predict the outcome of the final step in the long legal process and the future of Hair. His reply was that he felt that the show would indeed go on.
Finally, the case was heard by the Supreme Court on May 22, 1970. After much deliberating, the votes were cast and the result was a 4-4 tie. The vote overturned the opinion issued by the memorandum and cleared the way for Hair to be presented in any form the actors chose without the treat of criminal action to the cast and crew. Berlin and his cadre of lawyers had won a tremendous victory for performers everywhere and their efforts were warmly celebrated by the cast of Hair and Michael Butler, who presented Berlin with a necklace of Buffalo Nickels and showers of flowers. The cast's spirit and enthusiasm was contagious to the public, who flocked to see Hair and made it one of the biggest theater hits of the era.
When Gerald Berlin looks back at his long association with Hair he has fond memories. He calls it one of the defining periods of his career. Berlin has followed the show closely since 1970 when he first got to know the performers and producer Michael Butler. In 1995, Berlin attended the 25th anniversary of Hair's opening in Boston and enjoyed his reunion with the original Boston cast. As a lifelong fan of music and theater and champion of civil rights, Berlin feels good about striving to keep Hair open. When the topic of censorship and the minority of people who feel compelled to impose their own aesthetic views on the public, Berlin states that he has never known art to be dangerous. He should know as he took his young sons to see Hair several times. Asked to comment on Hair's fantastic success, Berlin attributes it to the fact that Hair "was the first and best rock musical. It defined a generation."
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