|There has been a good deal of imprecise language (among other varieties) tossed around of late on the subject of the area's hippies and some of their related activities - one which has led to recent court proceedings. Since the issue in question involves a local publication, BOSTON's interest in the matter is more than passing. What follows is as complete a history of the events and charges relating to the burdened journal "Avatar" as we have been able to piece together from diverse sources before going to press.|
By my troth, captain, these are very bitter words - King Henry IV.
On Friday, December 8, 1967, Judge Elijah Adlow opened his Boston Municipal Court session promptly at ten as he always had. His first customers, as usual, were overnight drunk and disorderlies, and the Judge wasted little time in disposing of their cases.
"Do you have a lawyer?" he would ask automatically.
"No," would come the muffled answer.
"Do you want a lawyer?"
"No," came the answer again.
"Sign a waiver," said the Judge. A waiver was produced and signed.
Judge Adlow has long been known for his sympathetic treatment of alcoholics and first-time offenders. "Would you like to go to the State Farm and give yourself a chance to dry out?" he might ask, "or do you think you can go back to your job?"
Most of the drunks indicated they'd rather not go to the Farm. Judge Adlow accepted their wishes, either filing their cases or finding them guilty and suspending their sentences. Before half an hour passed, he had disposed of nearly a dozen such cases, and seemed to be in typical early-morning good humor.
It was about 10:30 when the clerk called Edward Jordan to the stand. Jordan, who also uses the name Beardsley, is a 27-year-old artist. He was charged with possession of obscene material with intent to sell.
Appearing as witness against Jordan was Sergeant Edmund Griffin of the Boston Police Department's Vice Squad. Griffin took the stand to tell the court how, on November 30, he had entered the one-time offices of the defunct Midtown Journal and, armed with a search warrant, had seized 3,500 copies of Avatar, a local "underground" newspaper that had recently moved its offices from Cambridge to Boston.
According to Griffin, there were three persons on the premises at the time, one of whom was Jordan. He testified that he asked who was in charge and that Jordan said he was. Griffin then directed the attention of the court to three issues of Avatar, one of which included the now-famous centerfold which displays in color four familiar Anglo-Saxon four-letter words against an intricately detailed ornamental background; the other two issues contained similar words in more ordinary literary context. He handed a copy of each issue up to the bench as he described its context.
As the Judge perused them, Attorney Joseph Oteri, counsel for Jordan (and generally for Avatar) rose to tell the court that the participants in this case were "stupid" to take the Avatar matter seriously. By doing so, he pointed out, they were simply "rising to the bait" offered by the newspaper's editors. When Oteri described Avatar as "deliberate social protest," Judge Adlow uttered his first pronouncement on the case, interrupting Oteri to demand, "What social protest justifies language like this? Even the French Revolution never evoked such filth and sewerage!"
Oteri went on to cite the recent U.S. Supreme Court rulings on obscenity which, he said, made it clear that Avatar was entitled to First Amendment protection. Once again, Judge Adlow interrupted. "Who's getting excited about Supreme Court standards?" he asked, adding that the community still had some right to set its own standards, and "at our humble and low level, this filth just won't go."
The Supreme Court, Oteri submitted, would not find Avatar obscene. The Judge disagreed. "When the justices see this," he countered, "they're going to jump out of their black pajamas and act sensibly." There was laughter in the courtroom, and the Judge allowed himself an indulgent smile.
Oteri then reminded the court that no one was required to buy Avatar. "Ed Griffin doesn't have to buy it and bring it home to his children: why should people who want to read it be unable to?"
"Because community standards must be protected," the Judge answered. "People who want to read it are wallowing in filth. I'm sorry we have such a cesspool in this city," he continued. "If I can help get rid of it, I'm going to do everything I can."
Undaunted, Oteri pressed on. Avatar, he informed the court, was required reading in some courses at Harvard Divinity School. "So much the worse for Harvard Divinity School," replied the Judge. "They're searching for a Paradise Lost."
Judge Adlow made it clear that he was not about to be swayed by philosophical arguments about morality. Oteri then attempted to propose a legal issue. "Possession," he said, "has not been proved."
"You won't get anywhere by switching to legal arguments," Judge Adlow responded good-naturedly. Oteri shrugged his shoulders.
The verdict was guilty. Jordan, who had remained mute in the prisoner's dock throughout, was sentenced to six months in the House of Correction, and released on $1,000 bail pending an appeal in Superior Court.
Outside the courtroom, Oteri indicated that the outcome of the trial was no less than he had expected. But he had a last word to say to reporters who had gathered about him. "This is a threat to all newspapers, and you are remiss in letting it happen without a word," he said angrily. "It's what they do to newspapers in Argentina, not in the United States."
Leading up to the Adler-Oteri encounter described above (and to others still pending as of date of publication) were an unusual set of occurrences, starting in Cambridge and spilling over into Boston. To begin at the beginning:
On June 9, 1967, the first issue of Avatar was published from the offices of Broadside magazine, a respectable and respected folk and rock-and-roll music monthly publication located at 145 Columbia Road, Cambridge. One of the country's many local "underground" newspapers recently making the scene, Avatar, like its counterparts, is put together by an assortment of mystics, psychedelicists, Zen practitioners, astrologists, entrepreneurs, trip takers, philosophers of love, free speech advocates, and antiestablishmentarians - in general, participants in and observers of the tribal cult of hippiedom. The audience for this journal of opinion, it was hoped, would be a mirror reflection of its staff. The premiere issue, and the biweekly issues that followed, were well received, and sold through the summer without incident (save for one, in which an individual, according to Avatar president Dave Wilson, was arrested in Watertown on the charge of possession of subversive literature with intent to distribute - the Avatar in question contained an unflattering reference to the U.S. Army - spent the night in jail, and was released when the charge was dropped the next morning).
On October 2, however, the live-and-let-live climate in Cambridge suddenly changed. Then-mayor Daniel J. Hayes, at a City Council meeting, publicly declared war on hippies. He told the citizens of Cambridge, that "we must rid these people from our city." For a style-setting gesture, Hayes gathered a crew of newsmen and police and staged a raid on an apartment which housed 21 local diggers. Further, he hinted that landlords would be well-advised to turn away hippies as tenants by conducting, via building inspectors, a critique of dwellings known to be rented to hippies with the implied threat that their owners would have to meet stringent inspection codes unless they changed their clientele.
He also urged shopkeepers to turn away hippies as customers, and threatened to rewrite the city's vagrancy statutes so that arrests could be made for no other reason than "no visible means of support." Finally, he ordered a full-scale "investigation" into the hangouts and habits of the city's flower children. Meanwhile, the Massachusetts Civil Liberties Union released a statement condemning the Mayor's action as "outrageous" and "unconstitutional," but took no civil action.
As for Avatar, Hayes dispatched his team of building and health inspectors to their Broadside home. The editors were warned that their offices would be condemned unless they installed "separate bathrooms for men and women." Rather than bow to what they felt was patent harassment, the paper moved itself to 37 Rutland Street in Boston's South End, the former home of the Midtown Journal.
At this address in late October, the Midtown Journal's old printing press produced the 11th issue of Avatar, which contained a mock obituary of Mayor Hayes (who was to run ninth in the Cambridge City Council election, to be superseded as Mayor by Walter J. Sullivan - a man who, in the words of one high-placed city official, "would make Hayes look like a radical"), and a graphic reflection on life called "Diary of a Young Artist."
Councilmen Sullivan and Alfred E. Vellucci now publicly branded Avatar "the dirtiest stuff that was ever published ... So filthy that we wouldn't want anyone to read it." According to an eyewitness report appearing in the Wellesley (College) News, Vellucci "waving a sealed manila envelope over his head ... asked for an investigation of the hippie newspaper Avatar ... Vellucci refused to open the envelope, which he claimed contained back issues of Avatar he had personally selected, claiming that if he did so, smoke from marijuana would probably billow out."
Through some anonymous courier from the City Council, Harvard Square's three major newsstands - Out-of-Town News, Felix's, and Nini's - claimed to have been informed that if they continued to carry Avatar, they would face the risk of prosecution for also stocking nudist, girlie, and homosexual magazines. All three immediately withdrew Issue 11 from their stands.
Across the river, the aforementioned Sgt. Griffin (who coincidentally was the same policeman who had brought Andy Warhol's film The Chelsea Girls to court a few months before) appeared at Boston's Paperback Booksmith and placed salesman Peter McGuire under arrest for selling obscene literature - namely, Avatar. The defendant was arraigned, tried, and found guilty by Judge Adlow on November 9. He was fined $200.
Back in Cambridge, Avatar, which had sent a force of its own vendors into the streets after having been removed from local newsstands, found itself involved in a jump-rope contest with the long red tape of licenses and permits. Under Massachusetts general law, newspaper distributors are not required to be licensed. However, in the Cambridge General Laws (Chapter 101, Section 17) there is a passage that allows for the "regulation" of the sale of newspapers without the payment of fee. The council, thus armed, notified Avatar that its vendors must have permits. Avatar applied for, and received, a permit valid until May 1, 1968, with the provision that it could be revoked for "good cause."
No sooner had Issue 12 of Avatar come out - containing a richly laden syllabus of epithets in the form of an editorial directed against harassment - than Cambridge City Manager Joseph A. DeGuglielmo revoked the permit "because they were selling obscene literature." Avatar's editors applied for a new permit, but were refused, and asked to have a conference with Mayor Hayes, also refused. As vendors persisted in selling the newspaper, police persisted in making arrests. At a November 13 Council meeting, the staff of Avatar was allegedly threatened with criminal prosecution for failure to obtain a permit and were told that a new permit must be obtained for each issue.
Two weeks later, Issue 13 appeared on the streets, with its designedly challenging centerfold. On November 25, Avatar met with DeGuglielmo to ask for a reason behind the denial of permission to vend newspapers. The City Manager allegedly informed them that Avatar was no longer to be considered a newspaper, but rather, in the eyes of city officials, a commodity, and that therefore, under any reading of the laws pertaining to commodities, its distribution would require a license. The editors contend that he refused to elaborate on the newly-established requisite.
On the same day, bricks were hurled through various windows of stores where Avatar was sold - Headquarters East; Riffs, Inc.; and the Broadside offices. Four days later, vendor John Rogers was arrested in Harvard Square and charged with selling newspapers without a permit, and in his Mariposa Shop on Western Avenue, George Tower was arrested and charged with selling obscene material.
Meanwhile, Sgt. Griffin led a team of 14 Vice Squad officers and, bearing a search and seizure warrant signed by Judge Adlow, confiscated several thousand copies of the newspaper, negatives of past issues, and a mailing list that included, among others, the names of local professors, Time and Newsweek Magazines, and the Christian Science Monitor. ("We've never had any trouble with the mail," commented Avatar's Wilson. "This whole obscenity issue is just an excuse for Mayor Hayes' anti-hippie campaign. You don't see anyone complaining about other publications on the stands, ones that have printed exactly what we have.") This raid was to lead to the conviction of Edward Jordan by Judge Adlow.
Simultaneously, at Like Nothing Else, a shop on Boston's Charles Street, owner Gary Sendroff and clerk Robert Roman were arrested for selling obscene material and later released in $1,000 bail.
Jospeh Oteri, making only token arguments and apparently disdaining to argue cases before Judge Adlow in Boston on the basic terms of whether Avatar was actually to be deemed an obscene publication, seized the opportunity in a court case heard by Judge Edward M. Viola in Cambridge District Court on December 12. Oteri, who had previously presented the case for defense in a nationally-watched test of marijuana laws, now offered a battery of witnesses on behalf of the literary and social merit of the journal Avatar.
Cross-examining the secretary of the Cambridge Licensing Committee on the point that when Avatar had applied for permits, the Committee had maintained that not enough information had been supplied by the editors to allow the city to check on possible police records of the 26 vendors involved, Oteri informed the secretary that statutes did not require this process. "It's been office procedure since I got here," he was told.
"That's nice," Oteri responded, whereupon the case against vending without a license was dismissed.
But there remained the more serious charge of obscenity. To argue this, Oteri produced his first witness, Charles R. Beye, an associate professor of Classics at Boston University. Professor Beye testified that such language as appeared in Avatar was in common usage, and that its appearance in print "shows the fact that taboo Anglo-Saxon words have come to be used in a manner far and away from designating particular forms of human behavior."
Would you use the language that appears on page three of Issue 12?" asked Judge Viola.
"Yes," the witness responded.
"Are you serious?" the incredulous Judge persisted. "You wouldn't hesitate to use that language to your wife?"
"Not at all," replied Professor Beye.
The Judge turned away, but the prosecuting attorney stepped in. "Would you say such language is used in present-day community standards?" he asked.
Oteri next called Harvey Cox, an associate professor of Divinity at Harvard, who testified that Avatar's content "certainly doesn't appeal to my prurient interests."
Dr. Cox gave way to Howard Zinn, professor of Government at Boston University. "A remarkably large proportion of the material (in Avatar) has had to do with issues of social importance," Dr. Zinn told the court.
As the afternoon drew to a close, Attorney Oteri, resting on the expert testimony produced on Avatar's behalf, drew from his briefcase a stack of periodicals, including The Candid Press, East Village Other, and The National Insider. He held them up. The one on top headlined a story: THE GIRL FROM SIN. "Your Honor," Mr. Oteri said, "all of these were purchased today from newsstands in Cambridge. Therefore there appears to be another issue here," he concluded, "- that of selective law enforcement."
At this point Judge Viola adjourned the trial until December 26. Outside the courtroom, Oteri told BOSTON that he still was not sure what was behind the anti-Avatar campaign. "We had hoped to get to the root of the problem today," he said, explaining that he had subpoenaed Mayor Hayes, Councilman Vellucci, and City Manager DeGuglielmo as witnesses. "We didn't have to call them, because we won on the question of the ordinance requiring permits for vendors, but we will call them again if we have to."
He went on to indicate that if he should win his case and if city officials continue to harass Avatar, he would seek relief under the law - under which all men are considered equal.