Hair and Obscenity: First Amendment Law

It is perfectly acceptable that some may find “Hair” objectionable and protest any performance. The play comes from an era of protest and openly challenges many dominant cultural mores, which were even more dominant when the play was written in the late 1960s. It is within a person’s right of free speech to speak out, or post fliers and to call for a boycott. However, I have issue with the use of a quote from the Supreme Court case Roth v. United States , attempting to paint the performance as somehow illegally obscene and improperly presented at JCC. Personal preference may prevent one from buying a ticket, but the Supreme Court has established that “Hair” fits within the legal framework of protected speech. 

The play “Hair” was challenged as “obscene” from the when first performances were staged in a NYC disco and the first traveling regional shows set out on the road in the 1970s. Twice lawsuits involving performance of the play reached the Supreme Court, and in both cases the Supreme Court ruled “the show must go on.” While the rationale for each decision was different, the general gist was “freedom of expression” trumped discomfort with the controversial aspects of the musical. In Boston, in 1970, the county District Attorney attempted to prevent the show from opening, claiming it desecrated the US flag and contained “lewd and lascivious” material. The Massachusetts Supreme Court (the top state court) allowed the show to open, provided that certain sexual scenes were removed and all actors remained clothed. The actors and producers refused to open under those conditions and appealed, first to the federal district court and then the US Supreme Court. With one justice ill, the justices split 4-4 on the issues before them, but the Court’s opinion allowed the show to open with none of the restrictions imposed by the State court.