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
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.
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."
To return to the Hair Articles Index click
Or use your Back button to return to where you were.