The Watcher Cat

The Watcher Cat

Saturday, October 31, 2015

A Prosecutor Recants: A Free Speech Conversion

This is good to see:
In 1964, Gerald Harris successfully prosecuted Jonas Mekas for showing a 43-minute film by Jack Smith called “Flaming Creatures,” which included nudity and sex acts. Fifty-one years later, after reading an article about Mr. Mekas in The New York Times, Mr. Harris reached out to the defendant to apologize.

Mr. Harris is now 79 and semiretired. Mr. Mekas is 92 and still going strong, making movies and running a film archive.

“I feel I owe you an apology,” Mr. Harris wrote in an email. “Although my appreciation of free expression and aversion to censorship developed more fully as I matured, I should have sooner acted more courageously.”

Mr. Mekas wrote back immediately.

“Your surprise generous apology accepted!” he wrote. “There should be more such examples.”

In his message, Mr. Harris wrote that a few months after prosecuting Mr. Mekas and two other defendants who were working at the New Bowery Theater, he asked to be relieved from prosecuting Lenny Bruce on similar charges because he found Mr. Bruce’s routines hilarious.


At trial, Mr. Harris effectively shut down testimony that “Flaming Creatures” had artistic validity meriting constitutional protection. Ms. Sontag, whose debut article in The Nation magazine was a glowing review of “Flaming Creatures,” was permitted to define underground film, but Mr. Harris objected to her testimony that the film was a work of art, and the three judges — including former Mayor Vincent R. Impelliteri — sustained his objection.


But things change. Mr. Harris, who went on to become a judge and the county attorney for Westchester, took up poetry. When he met Ms. Sontag at a poetry reading years later, he said, they had a laugh about his cross-examination.

Before they parted, “I said, I grew up to be the guy who refused to prosecute Lenny Bruce, and she said, ‘Good for you.’”

Mr. Mekas was sentenced to 60 days in the workhouse — a grim punishment for a survivor of a Nazi forced labor camp — but the sentence was suspended. He held no grudges.
I'm glad to see this story, both for the growth on the part of Mr. Harris, and for the generosity of spirit shown by Mr. Mekas. But there's another reason, too. When I was the lead counsel in Nitke v. Gonzales, decided 10 years ago, now, my concern was that the use of "local community standards" on the Internet could be use to hold artists and other speakers to the most restrictive community standard in the country--as, in fact, was the law under US v. Thomas, the leading case prior to our bringing the suit. In the current very free commons of the Internet today, it's easy to forget how concerned the Bush Administration was trying to revive obscenity law, prosecuting not just video or film, but the written word alone. (Because I've been exceptionally busy of late, I didn't see see that one of our original and stalwart witnesses in Nitke, Candida Royalle, passed away last month; I am extremely sorry to hear of it.)

I have to say, my only regret about the Nitke case is that we didn't win outright. Oh our three judge panel rejected the Thomas precedent, and we seemed to put that wrongful principle to bed, at least for now--but as a constitutional scholar and a lawyer, I am as sure that we had the right of the argument now as I was then.

And Mr. Mekas did well in accepting what he called the "surprise and generous apology"; indeed, there should be more examples, and I admire Mr. Harris for being one.

The law is a blunt instrument; it cannot distinguish between true and false ideas of the good. That's why we have a First Amendment.

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