Appendix — Southeastern Promotions, Ltd. v. Conrad

Supreme Court brief1975

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TABLE OF CONTENTS

Docket Entries

Complaint and Application for Temporary Restrain-

ing Order and alternatively for Preliminary

Injunction

Motion to Dismiss

Answer of Defendants

Excerpts from Transcript of Proceedings

Volume I

Testimony of Robert Cherin

Direct Examination

Cross Examination

Testimony of Steve Conrad

Direct Examination

Cross Examination

Volume II

Excerpts from Proceedings

Testimony of Steve F. Conrad

Direct Examination

Cross Examination

Recross Examination

Volume III

Testimony of Wilkes T. Thrasher, Jr.

Direct Examination

Cross Examination

Recross Examination

Testimony of John Ellis

Direct Examination

Cross Examination

Page

Testimony of Coyel Ricketts

r ek ce eabeboeake 65

lerer 68

Testimony of Albert L. Gresham

,, ̃ O:... 79

Testimony of Donald Klinefelter

PE ‚⁰‚mjp oc vc doc davis sols i beiay 91

ELLE EN Te 92

Testimony of Robert Cherin

TEE EER ORY TEI ey 95

r eee 102

r ss cue bebe ucece cs eae 106

Testimony of Leif Carter

, · ˙ es 108

Volume IV

Excerpt from Transcript of Proceedings 108

D RS Pe ee See Petition for Certiorari

pp. 28-55

e 80 FP RRR 117

Pree OE GI cs. ous cau's'caee doe cee R 118

Opinion of the Court of Appeals . . . See Petition for Certiorari

pp. 56-58.

Order Denying Suggestion of

Rehearing en banc and

Petition for Rehearing........... See Petition for Certiorari

pp. 69-76.

— — . —

UNITED STATES DISTRICT COURT

NO. 6379

SOUTHEASTERN PROMOTIONS, INC.

vs.

STEVE CONRAD, EDGAR COLLINS, LAMAR

EAKER, COIL RICKETTS, EVERETT ALLEN,

ARTHUR PROVENSANO, MRS. DANIEL J.

WINDHAM, MRS. RUTH GOLDEN, RALPH

SHUMACKER, EDGAR BURKEEN & GEORGE

McINTURFF

CIVIL DOCKET

Date Proceedings

1971

11-1 Complaint & Application for Temporary Restrain-

ing Order or alternatively for preliminary injynction

filed, together with plaintiff's trial brief in support

of petition for injunction filed.

III ORDER, WILSON, D.J. setting oral hearing on

plaintiff's application for a Preliminary Injunction

on Thursday, 11/4/71 at 4:00 p.m. filed. Service

of order together with complaint and summons

handed to U.S. Marshal for service.

11-8 Summons returned executed 11/1/71 on each de-

fendant and filed. Sertel, DUSM — $33.00

8 1-4

11-5

11-8

11-9

11-22

Docket Entries

Came the respective parties by counsel. Plaintiff

presented its proof through Robert Sharon, its presi-

dent, and rested. Defendant, Steven Conrad, chair-

man of defendant Board, presented proof of defen-

dant and rested. Court heard argument of counsel.

Cause taken under advisement by the Court. Wilson,

D.J. Order Book 5, p. 703.

Defendants’ Memorandum of Law, showing cause

why a preliminary injunction should not be granted,

with attachments, filed. Service by counsel.

Plaintiff's supplemental brief filed. Service by coun-

sel.

Amended complaint filed. Service by counsel.

Motion by plaintiff for show-cause order filed. Ser-

vice by counsel.

MEMORANDUM, WILSON, D.. denying plain-

tits petition for preliminary injunction and reserv-

ing any further ruling until the court docket will

permit a hearing on the issues involved herein, filed.

Service to counsel of record by clerk.

ORDER, WILSON, D.]. according to Memoran-

dum heretofore entered denying motion by plain-

tiff for preliminary injunctive relief entered Order

Book 6, p. 12 and filed. Service of true copies by

clerk to counsel of record.

Motion by defendants to dismiss complaint, with

copy of transcript of the sworn testimony in pre-

liminary hearing, as exhibit, and with brief in sup-

port, filed. Service by counsel.

1972

3-16

3-23

3-31

4-3

Docket Entries

Motion by plaintiff for leave to amend complaint,

with brief in support and supplemental brief in sup-

port of motion for temporary restraining order and

application for expedited hearing filed. Proposed

amendment tendered.

ORDER, WILSON, D.]. allowing plaintiff's motion

to amend its complaint; action on defendant's mo-

tion to dismiss reserved pending the hearing set for

April 3, 1972; defendants shall file answer to com-

plair t within 10 days; hearing on all pending issues

set for 9:00 a.m. 4/3/72, at which time all issues

of fact in regard to obscenity will be for trial before

a jury and the evidence received at the preliminary

hearing held 11/4/71 may be used by either party

to extent relevant & permissible under Fed. Rules of

Civil Procedure, filed. Copies handed by clerk to

U. S. Marshal for immediate personal service upon

counsel of record.

Request by defendants for production of docu-

ments filed. Service by counsel.

Amended complaint and application for temporary

restraining order filed. Service by counsel.

Answer by defendants to complaint filed. Service

by counsel.

Defendants’ Trial Brief filed. Service by counsel.

the ies by counsel and the trial to a jury

ot me the issue of “obscenity.” De-

fendant, Board, having the burden of proof, com-

menced presentation of its proof but did not com-

plete; jury excused to 9:00 a.m., Tuesday, April 4,

1972. Wilson, D.J. Order Book 6, p. 552.

Docket Entries

4-4 Came the same parties, counsel & jury as of yesterday

4-5

4-6

and the trial of this case was resumed. Defendant's

proof ee pr Motion by plaintiff to disallow

defendants’ claim of obscenity — overruled. Plain-

tiff’s proof completed. Jury respited to 4/5/72, 9:00

a.m. Alternate Juror, Mr. Henson, #108, excused.

Court heard arguments on renewed motion to dis-

allow claim of obscenity. ‘Taken under advisement

by the Court. Wilson, D. J. Order Book 6, p. 555-b.

Came the same parties, counsel and jury as of yester-

day. The motion to disallow claim of obscenity

taken under advisement yesterday by the Court was

overruled and the question is to be presented to the

jury. Arguments. Charge. Verdict: The musical

“HAIR” is obscene as to speech; and (2) Ihe musical

“HAIR” is obscene as to conduct. Jury excused.

Court heard further arguments as to matters remain-

ing in the case. Cause taken under advisement, and

Court to file findings of fact and conclusions of law.

Order Book 6, p. 558.

Verdict Form filed.

Clerk's copy of transcript of the Court's Charge to

the Jury filed.

MEMORANDUM, WILSON. D.J. that the theatri-

cal production “Hair” contains conduct, apart from

speech or symbolic speech, which would render it

in violation of both the public nudity ordinances of

the City of Chattanooga and the obscenity ordinances

of the City and of the State of Tenn. The defendants

accordingly acted within their lawful discretion in

declining to lease the Municipal Auditorium or the

Tivoli Theatre unto the plaintiffs. Musical, literary

Docket Entries 8

dramatic talent are scarce commodities. ul-

2 nudity, and obscenity are abundant and readi-

ly available. The temptation to substitute the =

commodities for the former talents has become we

nigh irresistible in the entertainment world 3

years. “Hair” found musical talent. . It combined it

with vulgarity, nudity, and obscenity to come >

with a box office hit, filed. An order will enter

missing this lawsuit. Personal service to all counse

of record.

4-7 Motion by plaintiff for Injunction pending appeal

filed. Service by counsel.

47 ORDER, WILSON, D.J. according to —

dum heretofore filed dismissing this lawsuit, ente

Order Book 6, p. 668 and filed. Service by Clerk

of true copy to all counsel of record.

47 Notice of Appeal by plaintiff filed. Service by clerk.

4-7 ORDER, WILSON, D. J., denying pltf.’s motion

for an injunction pending appeal, entered pea

Book 6, p. 672 and filed. Service by clerk to counse

of record.

4-7 $250.00 appeal bond filed.

4-12 Copy of docket entries mailed to counsel of record

by clerk.

a *

* Order and Opinion of the Court of Appeals affirming

decision of the District Court. See petition for Certiorari

56-58. .

10-30 Orders denying suggestion of rehearing en banc and peti-

tion for rehearing en banc.

2-26 Petition for a Writ of Ceriiorari.

1974 iz

2-19 Writ of Certiorari granted.

IN THE UNITED STA

FOR THE EASTERN DISTRICT O

SOUTHERN DIVISION

SOUTHEASTERN PROMOTIONS, INC.

Plaintiff,

vs.

GAR COLLINS, LAMAR

Bein EVERETT ALLEN

ANO, MRS. DANI '

"sae MRS. RUTH GOLDEN, —

UMACKER, EDGAR BURKEEN and

GEORGE McINTURFF,

STEVE CONRAD, ED

EAKER, COIL RICKE

ARTHUR PROVENS

Defendants.

PRELIMINARY INJUNCTION

(Filed November 1, 1971)

. M

sens. Karte ook mene RS. DANIEL J. WINDAM,

RALPH SHUMA

GAR BURKEEN and GEORGE — bese

TES DISTRICT COURT

F TENNESSEE

Complaint

after called defendants, and would respectfully show the

Court as follows:

1. The plaintiff is an organization incorporated and

doing business under and by virtue of the laws of the

State of New York, with its office and principal place of

business in New York City, New York.

2. The defendant STEVE CONRAD is the duly elected

commissioner of Public Utilities, Grounds and Buildings

of the City of Chattanooga, and in such capacity is Chair-

man of the Board of Directors of Memorial Auditorium

and the remaining defendants are currently duly appointed

members of the Board of Directors of Memorial Audi-

torium in accordance with Article XII, Section 2-236 of

the Code of the City of Chattanooga; that the defendants in

their capacity as Board of Directors of the Chattanooga

Memorial [2] Auditorium have complete control in the

entire management of the Tivoli Theatre under Article

XII, Section 2-238 of the Code of the City of Chattanooga.

3. Jurisdiction is conferred upon this Court by virtue

of 28 U.S.C.A., Section 1332, and the amount in contro-

versy in this suit exceeds the sum of $10,000.00 exclusive

of interest and costs; likewise, jurisdiction is conferred on

this Court by 28 U.S. C. A., Section 1343 (Subsections 3 & 4)

providing for original jurisdiction of this Court as author-

ized by 42 U.S.C.A., Sections 1981, 1983 and 1988. This

is an action authorized by 42 U.S. C. A., Sections 1981, 1983

and 1988 for an injunction and for declaratory relief

pursuant to 28 U.S.C.A., Sections 2201 and 2202, seeking

declaration and findings of the rights and legal relations

of the parties herein. The declaratory judgment sowght

is that action taken by the members of the Board of

Directors of Memorial Auditorium is violative of the rights

of the plaintiff given it under the First and Fourteenth

Complaint

Amendments to the Constitution of the United States, and

for injunctive relicf in said action.

4. The plaintiff is being deprived of rights secured it

by the First and Fourteenth Amendments of the Consti-

tution of the United States in that the defendants have

denicd the plaintiff, through an exercise of a prior restraint

and infringement upon speech, expression and association,

the right to present the musical stage play “Hair” in a

municipal auditorium of Chattanooga, commanly known

as the Tivoli Theatre.

5. The Board of Directors of the Memorial Auditorium

were contacted by an agent of the plaintiff on September

11, 1970, with the request of the plaintiff to present the

musical stage play “Hair” in the Tivoli Theatre at some

subsequent time and said request was denied by the mem-

bers of the Board; on April 2, 1971, an agent of the plaintiff

again contacted the members of the aforesaid Board to

present the afcresaid musical stage play in the [3]: Tivoli

Theatre and said Board once again rejected plaintiff's

request. On October 29, 1971, at the regular monthly

meeting of the Board of Directors of Memorial Auditor-

ium, plaintiff once again requested said Board to be

allowed the right to present the musical stage play “Hair”

in the Tivoli Theatre during the period November 28.

1971 through November 28, 1971, having ascertained

beforehand from Clyde Hawkins, the manager of the

Tivoli Theatre that the aforesaid dates were available.

However, the defendants in their capacity as Board of

Directors of the Memorial Auditorium rejected plaintiff's

request and indicated that under no circunistances would

they voluntarily contract with the plaintiff to present the

musical stage play “Hair” in the Tivoli Theatre.

6. Plaintiff alleges upon information and belief that

the action taken by the Board of Directors of the Tivoli

Complaint

Theatre was an arbitrary abuse of discretion as shall be

more fully set out hereinbelow. This Board has autonomous

authority in renting out the theatre facility and schedul-

ing its use. Article XII. Section 2-238 of the Code of

the City of Chattancoge. None of the defendants have

heretofore adopted any policy whatever, concerning the

type of programs of public entertainment, amusement and

education, U:at would be allowed to be booked at and

shown in the Tivoli Theatre in the City of Chattanooga,

Tennessee. In the absence of such an established and

ascertainable policy, the actions of the defendants amount

to an abuse of discretion which is clearly a prior restraint

upon plaintiff's right of expression, speech and association.

7. Plaintiff would further show this Court that upon

plaintiff's demand for an explanation from the manager

of the Tivoli Theatre as to the reason or policy grounds

upon which the plaintiff was denied the right to present

“Hair” in the said theatre, no reason or policy grounds

were given and the plaintiff was informed that the defend-

ants determined that the show could not be played in

Chattanooga.

8. The basis upon which the plaintiff has been denied

the right to exhibit the musical road show “Hair” in the

City of [4] Chattanooga does not withstand intelligent

scrutiny. The plaintiff alleges upon information and belief

that the production of Hair“ which it seeks to show in

the City of Chattanooga displays very little nudity per se,

and that this show is not obscene within the legal meaning

of that term. The production “Hair” employs a great

number of persons, as actors, musicians, stagehands, mem-

bers of the production crew; ushers, ticket takers, and

others. Ihe play sought to be produced in Chattanooga

is, with minor exceptions, a replica of the Broadway pro-

duction in New York City which has run since April 29,

Complaint

1968. Prior to that date for several months, the play ran

olf Broadway. Plaintiff further alleges from information

and belicf that the road tour productions of “Hair” have

played in such cities as New York, Los Angeles, San Fran-

cisco, Chicago, Las Vegas, Toronto, Boston, Paris, Munich,

Hamburg, Berlin, Belgrade, ‘Tokyo, Sydney. Sao Paulo,

Amsterdam, Stockholm, Copenhagen, Helsinki, ‘Tel Aviv,

Rome and Bucnos Aires. In none of these cities has any

public authority denied to the producers the right to show

and stage the said play, nor have facilitics been denied to

the various produccrs of said play, nor have any of the

authorities of said cities interfered with or harassed the

showing of Hair“, or instituted any type of prosecution

as a result of any act arising from the production of “Hair”.

9. Plaintiff further alleges that this production portrays

and reflects the attitudes, feelings and life styles of a signi-

ficant portion of the younger people of the United States,

and deals with such matters in a serious manner. The

production evaluates and shows some of the most funda-

mental values and socio-political issues prevalent in this

country today, such as the draft, the Vietnamese War,

racism, air pollution, and the sexual revolution, all of

which are subjects of serious concern, analysis and debate

throughout the United States. While presented in good

measure in song and dance, these issues are scriously dealt

with, and reflect both the rationale and the emotional dis-

position of a [5] significant segment of the American

society as it relates to such issues. A high degree of artistic

skill is demonstrated in the music, choreography, setting

and development of character. Two of the songs from the

production have become contemporary classics, “The Age

of Aquarius”, having been utilized as a key theme by the

Peace Corp in the public relations activities of the United

States Governmeht, and the song “Let the Sun Shine In”,

Complaiat

having been adopted as the theme for the Summer Thing

Festival, 1970, for the City of Boston. Both of these songs

are repeatedly played over the air, used as production

numbers on television and at one time were upon various

best seller lists in the record making industry. A segment

of this show was performed on National Television on

Sunday, March 8, 1970, on the Ed Sullivan Show before an

estimated audience of. thirty million persons. The total

production, utilizing the various elements eluded to and

included in the show that the plaintiff seeks to stage in the

Chattanooga auditorium, has won acclaim from leading

drama critics throughout the United States and abroad.

This äs the showing that the defendants seek to prevent.

10. The plaintiff further says that the stage production

sought to be performed in the Tivoli Theatre, a municipal

auditorium, is not “obscene”, as that term is legally defined.

The dominate theme of Hair“, taken as a whole, does not

appeal to the prurient sexual interest. The dominate theme

of “Hair” is not sex, nudity, or anything of that nature,

but a comment upon the socio-political atmosphere existant

within the United States of America today. Nor is “Hair”

patently offensive, and an affront to contemporary com-

munity standards relating to the description or representa-

tion of sexual matters. The use of four-letter words in the

play Hair“ is duplicated in the sound tract, which has

been distributed as a phonograph album and sold in every

record store in the nation. And plaintiff avers that “Hair”

has ‘social redeeming yalue.

11." Plaintiff would further show the Court that the

unwatranted and oppressive power restraining or expres-

sion, speech and [6] association engendered by the defend-

ants actions, will result in an immediate and irreparable

injury to the plaintiff unless the defendant Board of

Directors are temporarily enjoined from booking any

Complaint

production or activity or otherwise encumbering the

Tivoli ‘Theatre during that period from November 23,

1971 through November 28, 1971; and that if plaintiff

is not granted such relief, no adequate remedy of law will

be sufficient to repair his injuries. While the actions of

the defendants, if aliowed to stand, will deprive the plain-

tiff of monetary profits in an amount in excess of $10,-

000.00, such damages are perhaps compensable in an action

at law maintainable against the City of Chattanooga.

However, plaintiff has no adequate remedy of law to

compensate him for the stifling of his right to speech, to

expression, and his right of association. During the

pendency of this suit, should the Tivoli Theatre be booked

for another for the dates in question, the plaintiff's com-

plaint becomes moot and the defendants will have

accomplished in practicality what is impossible in equity.

No amount of monctary damages will recompense plain-

tiſf's loss of freedom of expression; no remedy at law exists

to compel the defendants to allow the plaintiff's exercise

of his first and fourteenth amendment rights.

12. Moreover, the plaintiff alleges upon information

and belief that there is no other facility in the Chattanooga

area that has the seating capacity, the acoustical design,

and the stage equipment and props, as well as the electrical

set up. required of a production the size and scope of

“Hair”.

13. Plaintiff would show this Court, in light of the

allegations above, that the plaintiff be granted a hearing

as soon as possible in order to secure a Preliminary

Injunction and preserve the booking dates of November

23, 1971, through November 28, 1971, and until a hearing

upon the merits herein. Plaintiff would show this Court

that a Preliminary Injunction should be issued upon the

Complaint

same facts and giving the same relief until such hearing

on the merits is had.

171 14. Plaintiff would further show the Court that

a Permanent Injunction should be issued, upon full and

final hearing and disposition of this cause, enjoining the

defendants from interfering with the booking and prepara-

tion of the production “Hair”, and that the defendants

be mandatorily enjoined to reserve for the use of plaintiff

or to contract with plaintiff for the use of the Tivoli

Theatre facilities during the period from November 23,

1971 through November 28, 1971, for various presentations

of the theatrical production Hair“; that the Board of

Directors of Memorial Auditorium of Chattanooga be

mandatorily enjoined to restrain their employees, agents,

officers, servants, and attorneys from harassing, interfering

with, embarrassing, or in any wise obstructing the stage

production of “Hair”.

PREMISES CONSIDERED, plaintiff prays that a date

be set for hearing upon its Motion for Preliminary In-

junction, that citation issue upon the terms and conditions

set by this Court, that such date be as soon as possible,

and that upon a hearing of said motion, a*Preliminary

Injunction issue against the defendant Board of Directors

of Memorial Auditorium enjoining them from scheduling

or booking any stage production or activity or otherwise

encumbering the Tivoli Theatre during that period of

time from November 23, 1971 through November 28,

1971, pending a hearing on the merits herein.

Plaintiff further prays that this cause be set for hearing on

the merits, and that upon hearing thereon, this Court

declare and decree that:

1. That the production of “Hair” contemplated and

sought to be scheduled for showing at the Tivoli

complaint

Theatre of the City of Chattanooga is an expres-

sion protected by the First and Fourteenth Amend-

ments to the Constitution of the United States;

2. That the production, as aforesaid, does not violate

any city ordinance nor is the same subject to the

denmitions given to the term “obscenity”.

Plaintill further prays that at such hearing a permanent

injunction issue enjoining the defendants from interfering

with the booking and presentation of the musical stage

play. Hair“, by the plaintiff corporation en the dates

referred to above; enjoining defendants mandatorily to

reserve for the use of the [8] plaintiff corporation or to

contract with the plaintiff for the use of the appropriate

Tivoli Theatre facilities during the period mentioned

above, from November 23, 1971, through November 28,

1971, upon normal, standard and customary tcrms and

conditions for like performances of musical stage plays:

and further enjoining defendants, their agents, repre-

sentatives, employces. agencies, city bodies subject to their

control or attorneys from interfering with, harassing, or

obstructing in any manner whatever the stage production

of “Hair”.

Plaintiff further prays for such other and further rehef

as would scem meet and just to this Court.

Respectfully submitted.

JOHN ALLEY

5th Floor, Maclellan Building

Chattanooga, Tennessee

Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE

SOUTHERN DIVISION

[ Title Omitted in Printing

MOTION TO DISMISS

(Filed November 22, 1971)

Come now the defendants and, pursuant to Rule 12(b)

of the Federal Rules of Civil Procedure, move the Court

to dismiss the Complaint and all relief sought thereunder

on the following grounds:

1. The Complaint fails to state a claim upon which

relief can be granted because:

4.) No Constitutional right of the complainant

or its employces has been violated and it has no stand-

ing to bring suit to have others’ constitutional rights

determined;

b.) Defendants have no duty to lease the ‘Tivoli

to complainant nor docs complainant have any “right

to such a lease;

c.) Complainant is not entitled to contrac t with

the defendants because it has averred acts wil! be

performed on stage which violate Sections 25.28 and

6-4 of Part II of the Code of the City of Chattanooga

and the common law of Tennessee on indecent ex.

posure and thereby the terms of the very lease it is

secking will be violated; and,

d.) The complainant, not being a natural person,

does not have a right to bring this action in this Court.

{2} 2. The Complaint fails to state a substantial fed-

eral question or constitutional issuc.

Motion te Dismiss

In support of this motion, and as an exhibit hereto, but

not for copy, there is attached a copy of the transcript of

the sworn testimony in the preliminary hearing in this

cause.

Respectfully Submitted,

EUGENE N. COLLINS

City Attorney

RANDALL L. NELSON,

Special Counsel

400 Pioneer Building

Chattanooga, ‘Tennessee 37402

265-2291

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE

SOUTHERN DIVISION

[ Title Omitted in Printing

ANSWER

(Filed March $1, 1972)

Come now the defendants in this cause and pursuant

to the Court’s Order of March 23, 1972, and without waiv-

ing any of the defenses raised in their Motion to Dismiss,

but relying specifically thereon, for further answer to the

Complaint heretofore filed against them in this cause, aver

they have the following defenses:

Defendants aver that the matter at hand is a contractual

one and that because the plaintiffs will not abide by the

terms of the standard agreement regarding compliance

with all of the laws of the United States and of the State

of Tennessee and all ordinances of the City of Chattanooga,

the defendants have no duty or even right to contract with

plaintiff. .

II.

Defendants aver that plaintiff is not entitled to contract

with them because it will have conduct performed on stage

which, because of the public nudity, indecency, obscenity

and incitement to crime involved, is in violation of the

following ordinances and laws:

1. Sections 25-28, Part II of the Code of the City of

Chattanooga;

21 2. Sections 6-4, Part II of the Code of the

City of Chattanooga;

3. Sections 2-38, Part II of the Code of the City of

Chattanooga;

Tennessee common law on indecent exposure;

5. Tennessee common law on gross indecency and

lewdness;

6. Tennessee Code Annotated 39.3003, and

Tennessee Code Annotated 39-1013.

III.

Defendants deny that plaintiff's “Equal Protection” rights

are being denied because they have never knowingly leased

the premises in question to any party who, to their knowl-

edge, was going to use said premises for the display of

public nudity and other illegal and immoral activity.

IV.

Defendants deny that plaintiff's First Amendment rights

are being violated because the First Amendment does not

protect conduct which is contrary to valid state law up-

holding a substantial state interest.

Detendanis deny that plaintiff's First Amendment rights

are being violated because the First Amendment does not

protect obsence language or conduct such as that which

plaintiff is seeking to exhibit to the public, and particularly,

where it makes little or no effort to forewarn the public

of the lascivious and salacious acts to be presented.

VI.

Defendants aver that granting a lease to plaintiff would

be contrary to their standing policy of leasing the premises

only for clean, healthful entertainment which will make

for the building of a better citizenship.

13 VII.

Defendants would further uo that because of the above

violations of the law, the players may be subject to arrest

Answer 4

uthorities and be unable to complete thei

mae which en as it be bere tm the past, .

a public disorder and/or riot, causing personal injuries

and property damage.

VIII.

Defendan further aver that they are without power to

lease the premises to the plaintiff, for its averred purpose,

and any such lease would be void under the terms of Ten-

nessee Code Annotated 39-3004.

IX.

Defendants aver that plaintiff is not entitled to contract

with them because it will permit acts of desecration of the

United States flag to be performed on stage in violation

of Tennessee Code Annotated 39-1601 et seq., 18 U.S.C.A.

700, 36 U.S.C.A. 175, and 36 U.S.C.A. 176.

In response to the factual allegations of the Complaint,

defendants say:

1) They are without knowledge sufficient to form a

belief as to the truth of plaintiff's existence or place of

business. ' *

2) They admit the allegations of Section 2 of

Complaint except that they would show that any —

involving liability on the part of the City must have

approval of the Board of — ;

3) They are without knowledge sufficient to form

2 as to whether the amount in controversy exceeds the

[4] sum of Ten Thousand Dollars ($10,000.00): they deny

that plaintiff has standing under 42 United States Code

Annotated to bring this action for the reason stated in

Section 1(d) of the Motion to Dismiss and they deny that

plaintiff is entitled to declaratory relief because: (1) it

Answer

has not made all interested parties (e.g. the actors) parties

to this action and defendant could be subjected to a multi-

plicity of suits and the “controversy” not be terminated;

and, (2) because as stated in Section 1(a) of the Motion to

Dismiss, plaintiff has no standing.

4) They deny the allegations of Section 4 of the Com-

plaint.

5) They admit the factual allegations of Section 5 of

the Complaint.

6) They deny the allegations of Section 6 of the Com-

plaint and aver that they are properly vested with discretion

to admit or deny access to the premises in question based

upon economic considerations, activity to be performed,

character of the applicant, availability of dates, legality of

proposed activities, and innumerable other valid consider-

ations which any theater's management must consider be-

fore leasing similar premises.

7) They deny that they determined that “Hair” could

not be played in Chattanooga, and aver that they only

determined it could not be played at the Tivoli or Me-

morial Auditorium.

8) The defendants are without knowledge to form a

belief as to the factual allegations in Sections 8, 9 10 of

the Complaint.

9) They deny the allegations in Section 11.

10) Defendants aver that by amending their Complaint

to ask for the Memorial Auditorium instead of the Tivoli,

which [5] plaintiff originally said was the only suitable fa-

cility, acoustically, etc., plaintiff has demonstrated that its

sole concern is crassly commercial and not the effective

presentation of any issues or ideas protected by the First

Amendment.

Answer

11) All other factual allegations not hereinbefore ad-

mitted, denied or explained are herein now denied as

though individually set forth and specifically denied.

12) Defendants aver that plaintiff is not entitled to any

relief.

Wherefore, defendants ask that they be dismissed with

their reasonable costs,

EUGENE N. COLLINS

City Attorney

RANDALL L. NELSON

Special Counsel

400 Pioneer Building

Chattanooga, Tennessee 37402

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE

SOUTHERN DIVISION

| Title Omitted in Printing

EXCERPTS FROM TRANSCRIPT OF PROCEEDINGS

(Filed April 6, 1972)

TESTIMONY OF ROBERT CHERIN

DIRECT EXAMINATION

BY MR. ALLEY:

1 Q Were you advised that the board once again

rejected your attempt to rent the theater?

A Yes, sir.

Q Now, in your capacity as president of the plaintiff

corporation, tell this Court what commitments, if any, you

have made to bring this play into the City of Chattanooga?

A We've committeed available time in the billing to

bring Hair here from Spartansburg, South Carolina, and

move it on to Austin, Texas.

Q Now, are dates after this particular date in question,

is the production booked up on dates after this?

A Yes, it moves west from Austin into —

Q (Interposing) How far in advance do you have

bookings?

A Well, for the most part I would say four to six

months.

Q Is there any logical — or any method you could tell

how long a stage production such as this will remain popu-

lar?

A Well, it’s usually season by season. You can tell some-

where early in the theatrical season, that running fiom

September till May, somewhere around October or No-

vember, you can get some good idea of how strong you're

Testimony ef Robert Cherin — Direct Examination; Cross Examination

going to be that season. To forecast beyond that, I think,

is very difficult.

e @ ®

CROSS EXAMINATION

BY MR NELSON:

@ ® 0

16 Q This request then was made no longer than

the one month before the time that you wanted to put

the program on?

A Yes, sir, this specific one.

Nou, in your complaint you've also alleged that upon

information and belief the production of Hair does con-

tain some nudity within it, is that not correct?

& Yes, sir, it does contain a nude scene.

Q Who appears on the stage nude in this play?

A The players.

Q How many players?

A The maximum is 28. That's the maximum number

of people in the company.

Q How many appear nude on the stage at the same

time?

A Well, the normal procedure is that everybody does.

However, I must explain that every performer, every night,

is given the choice, I mean there's no contractual obliga-

tion so that we cannot guarantee the number of nude play-

ers during that scene. It's a, you know, somewhere between

six and 35 seconds, [7] subdued light, standing completely

still in this scene.

Q Isee. Now, does this include both males and females

on the stage?

A Yes, sir.

Q You say subdued light; is it not true that there is

psychedelic lights flashing on the players at that time?

Testimony cf Rolert Cherin — Cross Examination

Testimony of Steve Conrad —Direct Examination

* There are two bright lights, yes, sir.

2 What is the purpose of this nudity?

A It denotes to the generation that Hair depicts, f

dom and rebirth. or

Q Are you aware of a Chattanooga City Ordinance

which forbids public nudity?

A Yes, sir, I am.

Q Are you aware of the standard lease of the City of

Chattanooga Auditorium Board that all ordinances of the

City of Chattanooga be conformed with?

AL assume it means applicable ordinances.

Q You don't think this ordinance would apply?

X No, I don't believe. you know, that Hair is a show

which includes the nude scene. this has been held by four

different courts to be not obscene.

TESTIMONY OF STEVE CONRAD

DIRECT EXAMINATION

BY MR. NELSON:

1251 Q Will you state your na iti

. y me and position, for

A Steve Conrad, Commissioner of Publi iliti

8 : ublic Utilities

Grounds and Buildings for the City

a g ity of Chattanooga, Ten-

Q As Commissioner of Public Utilities, Grounds and

Buildings, you are chairman of the Auditorium Board

is that not correct?

A That is correct.

Q_ I believe Mr. Alley has pl i

: ‘ : plead Section 2-238 of th

City Code. Under that, under Section 2-238, the —

of directors of the Chattanooga Auditorium Board shall

Testimony of Steve Conrad — Direct Examination

have complete control and entire management of the Chat-

tanooga Memorial Auditorium and shall make and by a

majority vote of the board, approve all contracts pertain-

ing to the maintenance, upkeep, use and operation of the

auditorium, provided that any contract involving the liabili-

ty on the part of the city shall have the approval of the

board of commissioners.

You're the chairman then of this board that's been [26]

set up by this particular ordinance: |

A Yes, I am by virtue of my office.

Q Now, can you tell us, Commissioner Conrad, does

the auditorium board have a policy on what productions

are allowed to be presented at the Tivoli Theater and the

Auditorium?

A There has been, as I understand it, an unwritten

policy of longstanding that was taken from the original

auditorium board dedication back in 1924. Basically, since

1 have been associated with the board. the past four and

a half years, this is the first instance where we have de-

nied the use of this particular facility to anyone. We

use the general terminology in turning down the request

lor its use that we felt it was not in the best interest of the

community and I can't speak bevond that. “Phat was the

board's determination.

Now. I would have to speak for myself, the policy to

which I would refer. as I mentioned. basically indicates

that we will, as a board, allow those productions which

are clean and healthful and culturally uplifting, or words

to that effect. They are quoted in the original dedica-

tion booklet of the Memorial Auditorium.

Q Did you bring that dedication booklet with you?

X Yes, I have it here.

Q Would you make it an exhibit to your testimony,

please?

Testimony of Steve Conrad — Direct Examination

1271 A Yes.

(Thereupon, the above referred to

booklet was marked Exhibit No. 2

for identification and received in

evidence.)

THE WITNESS: The section I refer to or page I refer

to is Page 40. The auditorium, its operation and manage-

ment, and the phrase I'm referring to, without reading the

entire thing, states that it will not be operated for profit

and — but the actual operating expenses will be permitted

and this phrase, if I may underline it verbally, instead,

its purpose will be dedicated for clean, healthful enter-

tainment which will make for the building of a better citi-

zenship.

Q What familiarity do you have with the stage pro-

duction Hair?

A I have not seen it. I have talked with persons who

have seen it. I have read a number of reviews of the

production. I have heard RCA Victor's album of the

songs in the production.

Q What is your information as to whether it meets

the standard that you have applied to productions sceking

to gain entrance to the Tivoli?

X I can personally not understand how nudity and

offensive language which violate two city ordinances that

I know of can possibly be considered clean and healthful

entertainment.

[28] N Has anyone on behalf of the plaintiff presented

you with any information demonstrating it to be such

clean and healthful entertainment?

A No.

Q To your knowledge has the auditorium board ever

allowed the production at either the auditorium or the

Tivoli Theater where public nudity was involved?

Testimony of Steve Conrad — Direct Examination

A Not to my knowledge, not since I've been on the

board. .

Q Have these facilities ever been closed to minors and

children? |

A Not to my knowledge.

Q As Commissioner of Public Utilities, Grounds and

Buildings, are you acquainied with any other facilities in

the city which could perhaps house this production? 1

A Oh, there are probably a number of private facili-

ties, if that’s what you're talking about.

Q Yes; could you name some of them?

A I don’t know the technical ramifications, what would

or wouldn't be required, but it seems to me that any kind

of stage play could be put on at the Chattanooga ro

Theater, which is a privately-owned organization. I woul

also make the assumption, since stage plays of various kinds

are put on at a theater whose name has changed several

times off Lee Highway, I think its called the V. I. P. The-

ater now, [29] but don’t hold me to that. It used to be

the Old West Dinner Theater. I think it may even have

been called the Barn Theater. I'm not sure of that.

If you're talking about just size, I would also imagine

that you could put on a play and Im certain I've seen

ene musical production at Maclellan Gymnasium.

Q Have you denied access to any of these or do you have

any authority to do so?

A I have no authority. .

Q Has the board at any time threatened prosecution

against the producers of this production?

Never.

8 Do you have with you a copy of the standard lease

of the auditorium and the Tivoli Theater?

A Yes, sir, I have.

Testimony of Steve Conrad — Direct Examination

Q Would you make it an exhibit to your testimony,

please?

THE COURT: Exhibit No. 2.

CLERK FRANKLIN GLASS: Three.

THE COURT: Three?

CLERK FRANKLIN GLASS: Your Honor, the pro-

gram is two.

(Thereupon, the above referred to

lease was marked Exhibit No. 3 for

identification and received in evi-

dence.)

BY MR. NELSON:

[30] Q Does it make reference to the city ordinances

in there?

A Yes, sir

Very well. Item No. I, it's a complicated sort of thing

on what I would say is Page 2 of this lease, these words

are stated, “This agreement is made and entered into up-

on the following expressed covenants and conditions, all

and everyone of which the lessee hereby covenants and

agrees to with the lessor to keep and perform; that said

lessee will comply with all laws of the United States and

of the State of Tennessee and all ordinances of the City

of Chattanooga and all rules and requirements of the Police

and Fire Departments or other municipal authorities of the

City of Chattanooga, et cetera, et cetera”, ad infinitum.

MR. NELSON: At this time, Your Honor, I would

like to read into the record the Chattanooga City Or-

dinances which we feel would be violated.

Section 25-28 of the Code of the City of Chattanooga

provides that It shall be unlawful for any person in the

city to appear in a public place in a state of nudity, or

to bathe in such state in the daytime in the river or any

Testimony of Steve Conrad — Direct Examination; Cress Examination

bayou or stream within the city within sight of any street

or occupied premises; or to appear in public in an indecent

or lewd dress, or to do any lewd, obscene or indecent act in

any public place.”

Section 6-4 of the City Code, Part 2, provides [31] “That

it shall be unlawful for any person to hold, conduct or

carry on or to cause or permit to be held or conduct any

motion picture, exhibition or entertainment of any sort

which is offensive to decency or of an immoral nature or

so suggestive as to be offensive or indecent or which is

calculated to incite a crime or riot.”

You may ask him.

CROSS EXAMINATION

BY MR. ALLEY:

Q Commisisoner, does the board approve every con-

tract?

A No, we have over a long period of time delegated

the authority to enter into contracts under certain policy

provisions to the auditorium manager.

Who would that be, sir?

Clyde Hawkins.

Is Mr. Hawkins here?

He's seated there.

I believe Man of La Manchu played here?

I beg your pardon?

Man of La Manchu?

Man of La Manchu, yes.

Did the board approve that or Mr. Hawkins?

No, it wasn't brought to the board's attention.

Would you explain to me what is clean and healthful

about the rape scene in this particular play?

1321 A I don't know whether there was a rape scene or

not.

ON OZON OTO ZO

Testimony of Steve Conrad — Cross Examination

Q You weren't aware of that?

Promises, Promises, was this approved by the board?

A_ No, it wasn't.

Q Would you explain to me what is clean and health-

ful about the multitude of adultery that is portrayed in

this production?

A I saw the production, there is the insinuation of

adultery, there was no nudity, there was no offensive lan-

guage as I said, over the insinuation that things were going

on.

Q But under your standard it was clean?

A It’s not important what my standard is, it's what

the board and the auditorium manager with the concur-

rence of the board determines.

Q U believe this theater has played Company, has it

not?

I am sorry, Mr. Alley, I didn't understand you.

The stage production Company.

Company

Yes.

I am not familiar with it.

POP O YS

10% THE COURT: Very well. All right. You will

be permitted to make an opening statement. I would

suggest you keep your opening statement brief in view of

the limited issue in the case.

Now, the City of Chattanooga has made reference to

certain ordinances which you did not set forth in your

answer but merely cite. Of course, the Court cannot take

judicial knowledge of the municipal ordinance unless the

parties can stipulate upon that. Cana stipulation be made

with regard to those ordinances?

MR. COLLINS: If Your Honor please, they were

Transcript of Proceedings a

stipulated at the earlier hearing and for that reason I didn’t

think there would be any necessity for that. I feel that

— sure that counsel would be willing to stipulate them

now. ;

MR. ALLEY: It was my understanding that everything

that occurred on November the 4th is in the record and

can be used for any purpose. —

THE COURT: Is that agreeable to counsel for

side, that — '

MR. COLLINS: (Interposing) Yes, your Honor.

THE COURT Testimony in the previous trial may be

used as evidence in the trial in this case?

MR. COLLINS: Yes.

MR. ALLEY: Yes.

* 0 *

lei MR. NELSON: Excuse me, Mr. Alley, I will

furnish you with one right now.

. COLLINS: Sorry about that.

— ALLEY: Wier Monet we have entered into a

stipulation of fact which would relate to this issue.

MR. COLLINS: If your Honor please, if it's appro-

priate, we have agreed to stipulate that the production

known as “Hair” has played in over 140 American cities

and that the production of “Hair” that is planned to be

presented in Chattanooga at the auditorium involves the

same stage conduct and language used everywhere else.

MR. ALLEY: I would only add one phrase there, es-

ially the same.

THE COURT: What does — word 7 — posed

._ ALLEY: Well, your Honor, we, of course,

„ for example, in 1968 when the

play was first performed, there were take-offs on —

to LBJ. Well, at some subsequent time, these references

were changed to Richard Nixon.

Tramscript of Proceedings

THE COURT: Well, the word “essentially” makes the

stipulation so vague and uncertain that it would eliminate

the value of any — if you can agree upon, in what par-

ticulars —

MR. COLLINS: (Interposing) On this statement,

{13} based on that statement, that is not correct other than

some very insignificant, minor changes, such as Richard

Nixon this company used, yes.

THE COURT: Restate your stipulation, now.

MR. COLLINS: Involves the same stage conduct and

language as has been used everywhere else.

THE COURT: Is that an agreeable stipulation?

MR.COLLINS: With us both understanding that there

are certain very minor differences that would relate to the

name of the President and a few things like that.

MR. ALLEY: And in accordance with the libretto,

which has been furnished in accordance with Rule 24 to

Opposing counsel and they have a copy of same.

THE COURT: Let's have that libretto identified, Ex-

hibit No. I for identification.

(Thereupon, the libretto referred

to above was marked Exhibit No. 4

for identification.)

MR. ALLEY: Would it be four?

THE COURT: Exhibit 4 for identification.

MR. ALLEY: Think there were three exhibits in the

initial proceedings.

THE COURT: All right. And that libretto can be

stipulated into evidence in this case?

MR. ALLEY: ves, sir.

TESTIMONY OF STEVE F. CONRAD

DIRECT EXAMINATION

BY MR. COLLINS:

(20) Q State your name for the record, please.

A Steven F. Conrad.

Q And your position with the City of Chattanooga?

A Commissioner of Public Utilities, Grounds and

Buildings. a:

Q And your position on the Auditorium Board?

A By virtue of the previous office, I am chairman of the

board.

BY MR. NELSON:

1881 there is a

(24) Q Now, on Page !-6, Commissioner,

scene where a microphone is placed somewhere. Do you

recall that scene?

A I recall the scene. J

the performance. The character Berger is reclining cen-

ter stage on his back using what appears to be a red mic-

rophone which he places in an upright position simulating

his penal organ and he simulates masturbation.

Q Did you see any relevancy of some of these physical

acts and conduct on stage to any theme in the plot?

A No, I didn’t.

Q Did these acts and conduct appear to be irrelevant

to any supposed theme?

A Yes, did.

Q 2 with reference to Page 1-11

of the script, was there a scene where posters were brought

upon the stage with different signs lettered on them?

A Yes, there were approximately a dozen or so.

THE COURT: What page are you referring to?

Testimony of Steve F. Conrad — Direct Examination

MR. COLLINS: III.

Q What were some of the things that were on these

signs as you recall?

A Well, the script indicates one of them which [25]

reads, “LAY DON'T SLAY.” I don’t remember the word-

ing on most of them except one which, let's see, it was

a lengthy phrase but the word “fucking” was on it.

Nov. with reference to Page 1-12, would you describe

to the jury what the players were doing while singing

about copulating in a king-sized bed?

A I don't recall if this was the exact scene because

the incidents occurred frequently. Let me explain a gen-

eral recollection. I don't know whether it pertains to this

particular scene.

Q All right.

A There was frequent simulated sex activity between

males and females in groups of two, in groups of three,

in groups of four and in one instance five persons were

indulging in what seemed to me to be an unnatural act.

The simulated sexual activity is not just the proximity

of male and female body. In almost every case that I re-

call the male, if it was a frontal or a rear position that he

was approaching the female, simulated the thrust, the re-

peated thrust of the penal organ.

1271 Q In connection with that scene, would you

read the language that is forcibly said on Stage attributed

to Claude on 1-27, center of the page.

“CLAUDE

“That's all right. I have thought it over — I'll tell them

I'm a faggot and hide out in Toronto. Shit. I'm not go-

ing in. I'll eat it first. I'm not.

Testimuay of Steve F. Conrad — Direct Examination

“WOOF

“Eat what?

“CLAUDE

“My draft card.”

Q Then read the one attributed to Berger at the bot-

tom of the page. ) ;

A “Dance bare assed,” then my script says, —

local department store.” I don’t remember what they said.

Q Now, with reference to 1-35 —

A (interposing) Could we go back to 1-29

33] You do recall the scene? .

4 on yes, Jeanie, if I remember, is the pregnant

— . * — a and

Q About the glories of heroin use and marijuan

pot — „ f

A UInterposi es.

Q you recall one scene where they were all pur

portedly on stage to give each other shots in the auen nie

A I honestly don t recall that, no. They may we

Q Now, after having been so entertained during the

first act, Commissioner, describe for the jury the manner

in which the first act ends. bP

» A There is a musical number, I can't give you any de-

ciption of it because in —

¥ Q 2 There is music all through itꝰ

A Yeah, theres a musical number and in the course

of the number, an enormous, either blanket or piece of

canvas, I couldn't tell which, is stretched out over the —

and perhaps a dozen, maybe more of the actors, male

female, get under the blanket or canvas; and in the course

of the number, they reappear, nude.

Testimony of Steve F. Conrad — Direct Examination

Q_ And do these men and women completely nude stand

340 there on stage and sing for a while?

hey stood there. I didn't know if they were sing-

ing.

Q Commissioner, what was your personal reaction af-

ter having scen the whole performance, what was your re-

action at that time?

* These simulated sex acts disgusted me.

mother, your sister, or your preacher, would you take these

people to see this play?

* No, I wouldn't.

Q To what human interest or animal instincts does

the play appeal or tend to satisfy?

MR. ALLEY: Your Honor, I would object to that

question.

Q 1 will rephrase it to what animal instincts does this

play appeal?

It seems to me, sex.

(2 Was the play offensive to your concept of public

decency?

A Yes, it was.

Q Now, you have read the script that was furnished

us and you have seen the play. Does the performance, the

conduct tend to deviate from the script in any respect?

Frequently.

s! MR.RAULSTON: (Interposing) Your Honor,

we are going to object unless it's in the libretto, for him

editorializing or saying anything that is not in the script.

THE COURT: Well, he can say what he saw. If he

saw the production itself, he can say what action he saw.

A This was the place in the script that I testified earlier

Testimony of Steve F. Conrad — Direct Examination

where Claude came around in the process of — in the

course of the dialogue when he blessed various people,

he touched the breast of this young woman, went back and

touched her other breast in the process of blessing her.

“BERGER

“Hey, let's have some more rock and roll music: one, two,

three, four,

“(Five is silent. BERGER, WOOF, HUD and entire

TRIBE run over to greet CLAUDE)

“TRIBE

Claude Claude Claude.

BERGER

„Wait Wait, wait don't tell us.

“WOOF

“Did you pass it?

“HUD

“Are you physically fit?

“(Claude nods yes)

“WOOF

“No kidding.

“BERGER

That's death body man

(69)

“HUD

“Tough luck baby.

“CLAUDE

That's all right. I’ve thought it over — I'll tell them I'm

a faggott and hide out in Toronto. Shit. I'm not going

in. I'll eat it first. I'm not.

Testimony of Steve F. Conrad — Direct Examination

“HUD

“Eat what?

“CLAUDE

“My draft card.

“BERGER

“I thought you burned it.

“CLAUDE

“That was my driver's license.

“WOOF

“Eat it on the galloping gourmet.

“CLAUDE

“Berger, help me, how am I gonna get out of going?

“BERGER

“Dance bare assed through ‘local’ department store.

“CLAUDE

“C'mon, what am I gonna do?

“BERGER

“Take me with you, tell them I'm your girlfriend and you

can't sleep without me.”

At that point in the script, two males, one jumps on

top of the other, I don’t know which was which —

MR. RAULSTON: (Interposing) Your Honor, again

we would object for the record, if it's not in the libretto

and as he says, he doesn't know.

[70] THE WITNESS: I know they were two males. I

don't know which male was on top of the other one.

THE COURT: He can testify what he saw.

THE WITNESS: The two males, at this point, one

jumped on top of the other and the one on top simulated

sex action of some kind with the one on the bottom.

— —

Testimony ef Steve F. Conrad — Direct Examination

“HUD

“Tell them your mother volunteered to fight in your place,

“WOOF

“Do they know she’s a green beret?

“CLAUDE

“I want to be over here doing the things they're over there

defending.

“WOOF

“Become a nun.

“HUD

“Wet the bed, baby.

“CLAUDE

“(He starts to burn draft card)

“They're not gonna get me. That's it, they're not gonna

get me.

“BERGER

“(Reading over his shoulder)

“Mr. Claude Hooper Bukowski — New, York Public Li-

brary.

“(They blow out the card)

“CLAUDE

“Now I can’t even get a book out. Berger, if I go, I'll

get killed or a leg shot off or something . . . I know it

they're not gonna get me.

“BERGER

“Oh yes, they are. You will go, and you will loot, rape,

and kill . . . you will do exactly what they tell you to

do.

Testimony of Steve F. Conrad — Direct Examination

(79) MR. ALLEY: (Interposing) Your Honor, I ob-

ject if he doesn’t remember.

THE WITNESS: There was a scene where five males in

apparently simulated indulgence with her.

MR. ALLEY: If that’s not the scene he is reading

from right now —

THE COURT: (Interposing) He can testify as to his

observations that he made of the play, his best recollection

as to their location with the script.

THE WITNESS: The scene to which I just referred,

the character Sheila, with simulated sexual activity on the

part of either Claude or Berger first, then Claude in a front

to back position. This was all standing as — yeah, it was

standing. Then Claude in a front to back position with

the other male, then a third male joined that activity and

then a fourth male joined whereupon the female character

said, “And I want to thank that last guy.”

SHEILA

Isn't love beautiful? I live in the East Village with these

two magnificent beasts. Claude, the purest mind on Ave-

nue C.

“BERGER

“Mama mia, that’s some — a spicy meatball.

“SHEILA

“And Berger, the grooviest ball on Avenue B.

„ 2 *

1891

BERGER

“No. No. Stop ... Don't . . . Stop!

“(She gets raped by WOOF. WOOF and STEVE exit)

“No — come back here young man. Where are the police

Testimony of Steve F. Conrad — Direct Examination

in this city? It's disgusting. A woman could get ravished

out here. She can. She can.

“(Two attendants with a stretcher run on stage to ‘rescue’

BERGER, and also pantomime a second rape. Then they

carry BERGER off, as he says:)

“I am going back to Fire Island!

“(The TRIBE runs into the audience with pamphlets

inviting people to come to the be-in. JEANIE and CRIS-

SY remain on stage.

“TRIBE

“Come to the B-in! Come to the Be-in!

“JEANIE

“Dig it, people, I'm tripped, high, zonked. . .

“HUD

“See the hippies get busted. . .

“JEANIE

Stoned

HUD

by the New York City Police.

“JEANIE

right here, right now . . in this theatre

“PAUL

“See them smoke marijuana, the killer weed.

“JEANIE

“I've had every drug going except some jungle vines some-

where.

Testimony of Steve F. Conrad —Direct Examination

197

CLAUDE

“WHERE DOI GO

“FOLLOW MY HEARTBEAT

“WHERE DO I GO

“FOLLOW MY HAND

“WHERE WILL THEY LEAD MF

“AND WILL I EVER

“DISCOVER WHY I LIVE AND DIE

“TRIBE

“WHY

“CLAUDE

“I LIVE AND DIE

“TRIBE

“WHY

“CLAUDE

“WHY DO I LIVE

“WHY DOI DIE

“TELL ME WHERE DO I GO

“TELL ME WHY

TELL ME WHERE

“TELL ME WHY

“TELL ME WHERE

“TELL ME WHY

“TRIBE

BEADS FLOWERS

FREEDOM HAPPINESS

BEADS FLOWERS

FREEDOM

HAPPINESS

BEADS

FLOWERS

FREEDOM

Testimony of Steve F. Conrad — Direct Examination

“(A siren sound effect is heard at the end of the song.)

I almost forgot, that was the song where, as I testified

earlier, during the course of this song, the cast of ten or

twelve, at least, fourteen, maybe, go under this tent-like

thing that’s stretched across the stage, undress and they

emerge, male and female, naked, until the conclusion of

the song. Then the siren effect is heard at the end of the

song. 5 0

[107]

“AND I WENT CLEARLY CRAZY

“BECAUSE I REALLY CRAVED FOR

“MY CHOCOLATE FLAVORED TREATS

“TRIO

“BLACK BOYS ARE NUTRITIOUS

“BLACK BOYS FILL ME UP

“BLACK BOYS ARE SO DAMN YUMMY

“THEY SATISFY MY TUMMY

“I HAVE SUCH A SWEET TOOTH

“WHEN IT COMES TO LOVE

“BLACK BLACK BLACK BLACK BLACK BLACk

BLACK BLACK

“BLACK BOYS

“(THREE BLACK GIRLS, appear in exaggerated blond

wigs, and dressed very brightly, a la Supremes).”

During the course, this is parenthetical, during the course

of this song, I believe I testified earlier to this effect, the

girls are in an elevated platform and there are three males

down below the platform lying on their back» facing the

girls and throughout the song the males go through the

Testimony of Steve F. Conrad — Direct Examination

act.

“SUPREMES TRIO

“WHITE BOYS ARE SO PRETTY

“SKIN AS SMOOTH AS MILK

“WHITE BOYS ARE SO PRETTY

“HAIR LIKE CHINEST SILK

“WHITE BOYS GIVE ME GOOSE BUMPS

“WHITE BOYS GIVE ME CHILLS

“WHEN THEY TOUCH MY SHOULDER

“THAT'S THE TOUCH THAT KILLS

* * *

11091

BERGER

Hud. Let's lock up.

“BLAKE

“Now folks, it’s turney-oney time.

“MARC

“Ladies and gentlemen. This portion of Hair is brought

to you by marijuana. nature's little way of saying, Hi.

“BRUCE

“You know Doug. This dope just isn’t as good as it used

to be.

“DOUG

“Here, try one of mine.

“BRUCE

“You're right. This is two, two, two hits in one.

“TONY

“Relieves headaches fast! Fast!

gyrations of the thrusting that is accompanied by the sex

Testimeny of Steve F. Conrad — Direct Examination

“JOYCE

“Marijuana. It’s not a question of hi, how are you, but

how high are you.

“BERGER”

The words simply say, “Fly United,” but as — before

Berger utters those words, he crosses the stage from one

side of the stage to the other — I don’t know which is left

or right — a girl — a woman is in front of him. He is in

close proximity to her. He is going through the motions

I described a while ago with the male genitals in the but-

tocks of the female and he says, “Fly United.

{117} “(They dance a minuet, with CLAUDE trying to

follow the steps. They are attacked by three African

witch doctors, in masks, with spears, wearing Dashikis.

CLAUDE crouches off to the side)

“AFRICANS

“WALLA WALLA

“GOONA GOONAT!!

“LINCOLN

“Oh, my God, niggers!

“(AFRICANS kill the people on stage and remove their

masks)

“HUD .

“Wait a minute. I don’t think I see no niggers. Boys, did

you hear what that fool called us?

“TWO BOYS

“Us, hell! She was talking to you.

Testimony of Steve F. Conrad — Direct Examination

“HUD

“(To audience)

“What's so damn funny out there. You jive white mothers

are always running around calling somebody some kind

of name. Like. . . niggers!

“(They remove Dashikis)

“HUD

I oughta harpoon your ass.

“LINCOLN

“Hey, wait a minute, snowflake, I'm one of you, baby.

“HUD

“No. Shit. Well, what yo doing here?

“LINCOLN

“Would you believe takin’ a suntan?

“HUD

“Never mind.

“(He knocks LINCOLN down, takes off his Dashiki)

6 e o

{129}

“SONG SONG SONG SING

“SING SING SING SONG

“SONG SONG SONG SING

“SING SING SING SONG

Four boys drag an old mattress on stage)

“THE TRIBE”

They are also, at this point, when the ma ppea

ttress

some gestures on the part of some of the male mesben

of the cast; again, the gesture, I have difficulty i

scribing the simulated thrust of the male organ. *

Testimony of Steve F. Conrad — Direct Examination

“THE TRIBE

“(This song starts as a chant)

“UUUUUUUUUUUUUUU THE BED

“AAAAAAAAAAAAAAA THE BED

“UUUUUUUUUUUUUUU THE BED

“OH THE BED

“MMMMM THE BED

“| LOVE THE BED

“YOU CAN LIE IN BED

“YOU CAN LAY IN BED

“YOU CAN DIE IN BED

“YOU CAN PRAY IN BED

“YOU CAN LIVE IN BED

“YOU CAN LAUGH IN BED

“YOU CAN GIVE YOUR HEART

“OR BREAK YOUR HEART IN HALF IN BED

“YOU CAN TEASE IN BED

“YOU CAN PLEASE IN BED

“YOU CAN SQUEEZE IN BED

“YOU CAN FREEZE IN BED

“YOU CAN SNEEZE IN BED

“CATCH THE FLEAS IN BED

11351

LET THE SUNSHINE

LET THE SUNSHINE IN

“THE SUNSHINE IN

“LET THE SUNSHINE

“LET THE SUNSHINE IN

“THE SUNSHINE IN

Testimony of Steve F. Conrad — Direct Examination; Cross Examination

“(During curtain calls, audience i encouraged onstage

to dance with cast) ‘ r

Q Commissioner, just two last ions, perha

. questions, ,

have used the phrase “simulated sex acts” —

stage frequentiy. Would you tell the jury in your own

words what you mean by “simulated sex acts”?

A A sex act performed with clothing on.

Q = 2 — ry. close, physical proximity?

. 4 physical proximity and the identical move-

Q In other words, the bodies w together?

. ere

8 Completely.

To your knowledge, has public nudi been

lowed on the stage of — om or the The —

* he

A No, it never has. Ne

Q And to your knowledge, has scenes acting out various

sex acts ever been allowed itori

— | on the stage of the Auditorium

CROSS EXAMINATION

BY MR. ALLEY:

2 * 6

1140 Q I beg your pardon?

A Third, the nudity. *

2 — say you were repulsed?

es, I had never seen i i stage

before and I frankly hope — — i

Q So it didn’t appeal to you, then? ;

8 No, it didn't appeal to me.

What portions i i

. 1 wey e i

scene, if you can summarize Waun

A Did I consider obscene?

Testimony of Steve F. Conrad — Cress Examination

Q Yes, sir.

A The I think I testified to the majority of them,

not by specific instance, as best I can recall from the read-

ing of the script — you want me to review them again?

Q Briefly, yes, sir.

A May I refer to my notes?

Q Yes, sir.

A I believe I said earlier that there was frequent in-

stances of simulated sex acts involving one male and one

female, involving several males and several females on

stage at the same time in face-to-face relationship while

standing, while on the floor; some cases the male was

astride the female, some cases it was vice versa; frequent

instances of male to female proximity, front to back with

the male facing the posterior of the female with what I

call, I think for [141] lack of a better term, thrusting move-

ments of the male organ into the posterior of the fema e:

male to male simulated sex acts in both attitudes, face

to face, front to back; simulated masturbation, several in-

stances, one very flagrant one of simulated male masturba-

tion with the use of a prop that appeared to be a red

microphone with the male center stage, all attention focused

on him, for he was the lead character in that sequence,

with the microphone being substituted for the male penis;

Simulated acts involving several males and one female.

This was a standing situation with one male in a frontal

attitude toward the female and the other males in a pos-

terior attitude, one to the other, that is face front to back

— 1 don't know how else to describe it;

Several instances of females simulating a sex act with

their mouths being in very close proximity to the male

genitals; frequent — no, I shouldn't say frequent, that's in-

appropriate — that one particular instance to which I tes-

tified of the male lead, as I call him in the play, scratching

Testimony ef Steve F. Conrad —Cross Examination

his own genitals; frequent instances of males grabbing other

males’ genitals — that's about the size of it, I think.

So, in summary, the portions that you found obscene

were the, basically, the simulated sex acts? ;

A That's correct.

Q Now, did you find any portions of it enjoyable?

[142] A I enjoyed the last number, I enjoyed the

opening number. I didn’t enjoy it very much in between.

Q You say “very much”?

K I think the only other number that, if you want to

use the word “enjoyment” that I felt was enjoyable was

the air pollution number.

Q All right, sir. Moving more in terms of relevancy

or in terms of attempting to say something, did any por-

tions of the play come across to you in that manner?

A Yeah, there was some messages to be gained.

Q Would you summarize those, set those out?

A There was an obvious protest against the war which

was highlighted by the closing number in particular. And,

as I said. there was the satire on air pollution.

Q With respect to racism?

A ‘There were instances where this was brought out, I

don't know how effectively.

Q Well, did you feel like that the players were basical-

ly racists, that is, the characters they were portraying, or

were they merely making fun of our society's views on

race, showing our hypocrisy?

A I couldn't really answer that. I didn’t feel they were

racists and I don't think that was the intent of it; but

I don’t know what — I don’t know them as individuals, Mr.

Alley, consequently, I don’t know where play acting [143]

begins and where reality ends as far as they are concerned.

Q You couldn't tell whether they were actors or ac-

tually living this part, then?

Testimeny ef Steve F. Core Cres Examination

A The program indicated they were nonprofessionals

picked up off the street, whatever that may be; program

also said that they believed in the sex attitudes they were

depicting.

Q In relation to the sex attitudes, could it be possi-

ble that some of these acts or any of these acts or all of

these acts that you have detailed here and obviously made

notes on and so forth could be found in context of making

a joke about sex? ;

A Again, I couldn't answer that, 1 don’t know. It

didn’t appear to me to be along that vein.

Q Was it possible?

A Anything's possible. :

Q Now, in all cases, I believe with the exception of

the one brief scene where the players are standing still

and the lights are dimmed to a great extent, very dim, the

players throughout are clothed, is that not true?

A That's correct. f

Q And ve are here referring to the famous or infamous

nude scene at the end of the first act, this is the only

exception?

2 That's the only scene in this play that I saw [144]

where characters or participants were nude.

Q What kind of people were portrayed in that play

Who were these characters? Who were they ——

what loosely can be called the hippie generation? Di

it have a setting?

A You mean for the stage itself, how was it set?

Q Well, I mean, did it say where this was taking place

or anything?

A No. 1

Q Any of the musical words give you any indication?

A A lot of references to New York but I —

Testimony of Steve F. Conrad—Cress Examination e

Q (Interposing) Are not some of the players black,

some white?

1 am sorry, I didn’t hear the question.

Are some of the players black and some white?

Oh, yes, yes.

Some male, some female?

Right.

But you definitely got the idea they were portraying

the hippie element in our society?

A They were representative of that group is the way

I would phrase it and they were attempting in their own

way to portray certain conditions of life as they saw them

I suppose.

Q In portraying those conditions of life as they [145]

saw them, would you not expect them to use some four

letter words?

A lam afraid four letter words are part of the vocabu-

lary, unfortunately, in some instances.

Q In talking to each other, if you heard them — over-

— them on the street, it would not surprise you, would

it?

A No, I have heard many of the words that have been

used. I haven't hear them to this extent.

Q Were there any words in the play you ha

heard before? eee Pe

A No.

Q_ Now, you say the play did comment on the war and

on sex and what about the draft?

There was a good bit about that.

Pollution?

Right.

Drugs?

From their point of view, yes.

Hypocrisy, generation gap?

OFO TOA

OrOD FPO >

Testimony of Steve F. Conrad —Cross Examination

4 These were included.

Q Now, with relation to drugs, I believe you testified

at one point that there were some comments on marijuana,

I believe, in direct testimony?

A 1 don’t remember what my direct testimony was,

[146] Mr. Alley. If you have a question. ask it; I will try

to answer it.

Q My question, then, is the conclusions or the ideas ex-

pressed on marijuana by the actors in the play happen

to coincide to a great extent with the conclusions of two

presidential commissions on marijuana, do they not?

A I honestly don't know. I am not an authority on

presidential commissions or marijuana ot much of any-

thing else.

Q But if I told you that presidential commissions —

MR. COLLINS: (Interposing) I object, he said he

didn’t know.

THE COURT: Well, state your question.

Q If I told you that the presidential commission on

marijuana has recommended the abolition of criminal pen-

alties for private use, would this, this fact, is it so brought

out by the players? Is this, this idea generally advocated

by the players in this play?

X I didn’t get that impression.

Q Did you get the impression they were against mari-

juana use?

X No, no, on the contrary.

Q That they were for it?

A Yes.

Q And they thought criminal penalties were wrong?

[147] A I would presume — and it's only a presump-

tion. I didn’t get it from the play — that if you believe

that marijuana should be used privately, you must there-

Testimony of Steve F. Conrad—Cress Examination

fore automatically believe that there should be no penalty

unless you are a masochist of some kind.

Q It is basically an anti-war play, is it not?

A I don’t know, basically, there is an anti-war element

in it.

Q All right. It's anti-Vietnam war?

A That's correct.

Q And I believe that now this view is probably shared

by the majority in this country, is it not?

A It would seem to be an accurate statement.

Q Okay. The same is true of pollution?

A Ves.

Q Now, Commissioner, you, of course, are not pre-

tending to have any expertise in the theatre?

A No, I don’t.

Q And you are basing your ideas and your opinions

of this play on basically your own personal morality, is

that not true?

A I suppose in essence, yes, I am simply saying that I

have never seen the physical acts that were an integral part

of this particular production on stage in a public place ever

before.

0 @ @

11521 Q Who are the grate —

A (Interposing) Beg your pardon?

Q Who are the “gtateful dead”?

A The grateful dead? I don't know.

Q Well, one of the songs mentioned “grateful dead.”

A I didn’t — first time I heard the lyrics, if it was in

the song.

Q Is it possible chat there were elements in this play

that you missed, Commissioner?

A I said I didn’t miss anything visually that I know

of. You can't keep your eye on the whole Stage at one

Testimony of Steve F. Conrad — Cress Examination

time. I have testified that many of the lyrics of the rock

music my ears simply can't catch. I read the lyrics, I

presume, out of this particular libretto, I think its called.

Q So, it is possible that you missed quite a bit if you

could not hear the lyrics? a

A les possible; let's say 1 couldn't hear the lyrics, I

couldn't understand the lyrics. I heard a lot of noise.

Q You recall the song, “What A Blessed Work Is

Man”?

A No, I don’t. It's in here, I know.

[157] Q But you are not testifying, are you, Commis

sioner, that this play is utterly without redeeming social

value?

MR. COLLINS: Object to that. Thats a conclusion

the jury is going to have to draw, may it please the Court.

We can get witnesses here for every comment, one way

or the other.

THE COURT: Sustain the objection. .

A No, I can’t say it — utterly no redeeming quality

whatever — utterly means in its context — my problem with

that word is like everybody else’s problem with obscenity.

What is it? What is it; not what is it not.

MR. ALLEY: Excuse me one second, Your Honor.

Q Commissioner, would you refer to your notes that

you referred to previously and list the social issues that

this play did comment on?

A I ͤ don't have those in my notes. You asked me a

question about it. I mentioned the air pollution. I men-

tioned the Vietnam War. You mentioned race relations.

I don’t know, a few others here and there — the draft.

Q Your notes do not contain those?

A No, my notes contained only instances, as best as I

Testimony of Steve F. Conrad —Recress Examination

could recall a day after having seen the performance, of

the simulated sex acts.

RECROSS EXAMINATION

BY MR. ALLEY:

1162] A formal vote was then taken not — to deny the

booking. I believe the words used — the nudity was dis-

cussed briefiy. It was not an in depth discussion if I

recall. The nudity was discussed briefly. The language

was discussed briefly. It was determined that the booking

would not be made in the best interest of the public.

Q_ Asa matter of fact, your obscenity defense was filed

Friday the day before you went?

A 1 had no knowledge of what the defense was. I

mean, I hadn't conferred with the attorneys, I didn't know.

Q The day before you went to Charleston on Saturday?

A If you say so, if the record shows that.

MR. ALLEY: Thank you.

THE COURT: Anything further of this witness? All

right. You may be excused.

Gentlemen, I am going to have to recess the trial at

this time. I have some other matters I must take up this

morning. Accordingly, gentlemen, do not discuss this

case; wouldn't be proper to discuss it among yourselves

or discuss it with anyone or allow anyone to discuss the

case with you.

Do not read or listen to any news account of the trial,

bearing in mind at all times your obligation to decide

[163] this case on the basis of the evidence that you hear

in open court.

Testimony of Steve F. Conrad —Recross Examination;

eee tne T. Thrasher, Jr. — Direct Examination

If the jury will be back at nine o'clock in the morning,

we will resume the trial at that time. The jury may be

excused.

(Thereupon, the jury was excused from open court, and

in their absence, the following proceedings were had, to

wit:)

THE COURT: Anything further, now, to take up,

gentlemen, in the absence of the jury? If not, lets be in

recess until nine o clock tomorrow.

(Court adjourned.)

TESTIMONY OF WILKES T. THRASHER, JR.

DIRECT EXAMINATION

BY MR. COLLINS:

11651 Q Are you an attorney at the Chattanooga Bar?

A Yes, sir, I am.

Q How long have you practiced law, Mister —

A (Interposing) Approximately 24 years.

Q Recently did you have an occasion to sce a stage

production known as “Hair’?

A Quite by accident, Mr. Collins, I did about a year

and a half ago, yes, sir.

Q In the interest of time, Mr. Thrasher, would you

simply turn to the jury and tell them what you observed

on stage with reference to sex acts, nudity and things of

that —

MR. ALLEY: (Interposing) Your Honor, I would

object to the form of that question.

THE COURT: Well, I believe the question is quite

Testimony of Wilkes 7. Thrasher, Jr.— Direct Examination; Cress Examination

general. Can you not make your questions more specific?

Although, of course, Mr. Thrasher is an attorney and is

aware of the rules of evidence and accordingly will be per-

mitted more liberality than would normally be the case

in the matter of addressing general questions.

11671 Then one of the actors took — the male actor took

the American flag and, don’t want to be indelicate, rubbed

the rear end of his anatomy with the American flag. Then

a female actress picked up the flag and did the same thing

with the front part of her anatomy.

Shortly thereafter, I saw many simulated sex acts be-

tween the actors and the actresses.

Near the latter part, there was a nude scene but the flag

and the sacrilege was the principal thing that I saw while

I stayed. I left before the play was over.

Q You left after the first act?

Al believe the second act. They did not cut the lights

on until then and — fully — and when the lights came on

where I could get out without walking over people and

disturbing them, I left, went back to the hotel and took

a shower.

Did you see simulated sex acts that can be character-

ized as unnatural?

A Yes, sir.

CROSS EXAMINATION

BY MR. ALLEY:

0 eo 0

11721 Q You didn’t answer my question.

A If that's the philosophy, I differ with it, yes, sir.

Testimony of Wilkes T. Thrasher, Jr. — Cress Examination

Q Now, you say you left at the end of the first act?

A Second act.

Q Second act? You left at the end of the play, then,

did you not?

A No, the play was still on. I went out when everyone

went out to smoke a cigarette. I did, too. Instead of go-

ing back in the theatre, I went out.

Q How many acts were there?

A Been two years ago, sir, I don't remember. | believe

it’s a three-act play. I did not see the last act. If there's

three acts, then I left at two. If its a two-act play, I left

at the end of one.

Q If it was a two-act play, you left at the end of the

first?

A It’s been two years ago, I don’t recall. 8

Q Do you recall at what point in the play this attitude

towards the flag was displayed?

A Had to be while I was there, of course, first or second

act, I don’t recall.

[186] Q So, as you sit here, you cannot say that the

play had no redeeming social values, can you? ;

A The part or portion that I saw, had no redeeming

social value. 8

You only saw a portion

; I saw a — I was revolted and left.

The most revolting part for you, I believe, was the

blasphemy, I believe, as you characterized - .

A (Interposing) Blasphemy and sacrilegious attitude

and gestures towards Almight God and Jesus Christ and

His son and the desecration of the American flag and be-

littlement of the United States Government, that was

enough for me.

Testimony of Wilkes T. Thrasher, Jr. — Cross Examination; Recress Examination

Q These factors, you say, appeal to man’s baser in-

stincts but they did not appeal to yours?

A They appeal to the evil and baser instincts of any-

one who would see it and they didn't — they didn't debase

me. They didn't influence me.

Q Anyone that would —

* (Interposing) But it revolted —

Q (Interposing) Anyone who would advocate these

things or perform these acts on the stage is advocating evil?

A Well, I saw no good that was coming from it, let's

put it that way.

MR. ALLEY: All right. sir, thank you.

RECROSS EXAMINATION

BY MR. ALLEY:

{189} Q You dont recall?

A U beg your pardon?

Q You don't recall whether you purchased it or not?

4K I don't.

Q If it is the practice of the theatre to sell these pro-

grams, not to give them away, then would you concede,

then, that you had purchased same?

A As I told you, unfortunately, I am not a theatre

goer. I could tell you about baseball and football but I

don't know much about the theatre. I am — I just don't

know.

Q You have been to three plays in New York. You

have been to plays in the Little Theatre?

A Oh, last time I was there, I guess it was five or six

years ago, maybe ten years before that.

Testimeny Wilkes T. Thrasher, Jr. — Recross Examination;

Tistasey et Jobe Elie. Direct Exemiaation

THE COURT: What is the purpose of this?

THE WITNESS: I don’t recall.

THE COURT: Cross examination of this —

MR. ALLEY: (Interposing) Well, your Honor, we

produced for the defendants the program that would be

here in Chattanooga. This program is from a play in New

York that is not going to be sold here in Chattanooga.

Now —

THE COURT: (Interposing) Those are matters you

can show to the jury.

TESTIMONY OF JOHN ELLIS

DIRECT EXAMINATION

BY MR. NELSON:

* * *

11961 Q Can you tell us whether or not the play dealt

with sexuality? niga

A Well, there's no question but what it did in all its

forms.

Q Was there one scene, several scenes, many scenes?

A Many.

Q Can you tell us what types of sex acts took place

in the play, Doctor?

A 1 don't know of any type of sex act that wasn't

simulated with the exception that I didn't see anybody

having sex with an animal.

Q Now, could you be a little bit specific and tell us

specifically what did take place and describe the acts.

A Well, these were simulated acts, of course, you un-

derstand that. Generally males cannot perform actually on

a stage, although sometimes they can, but the sex acts

Testimony of John Ellis — Direct Examination

were simulated between males and females and between

females and females and between males and males and be-

tween mother and son and whatever else there is to do.

Q Now, you say “simulated.” What do you mean by

that word, Doctor?

1197J « I mean that the actors posed their bodies and

went through motions that indicated sex acts, both natural

or unnatural. Also that the music and the lights and the

falling glitter from the stage simulated the climax that

occurs.

Q Were there any scenes of masturbation in the play,

Doctor?

A Yes, yes, yes. They would sing about that. One

fellow stood up and said, “Masturbation can be fun,” and

gave a demonstration.

Q Could you tell us whether or not there were any

nude scenes?

MR. ALLEY: Your Honor, I am going to object to

this leading.

THE COURT: Well, he may answer the last question.

A The nude scenes? Yes. At least three that I recall.

There was a lot of stuff that went on the stage. This

wasn't a stage like you ordinarily see a play. As a matter

of fact, there weren't any curtains drawn. It was a little

bit like a circus in more ways than one; but what I mean

by that is there was a center of action which was usually

outlined by a spotlight. But there were many side actions

going on.

{200} Q That answers it, Doctor.

MR. NELSON: You may ask him.

THE COURT: When you say, “I have never seen any-

thing to compare with it,” what do you mean?

Testimony of John Ellis — Direct Examination; Cress Examination

THE WITNESS: Well, by that, you know, there are

many forms of degradation. There was really no violence

particularly in this play. There might be a bit but there

wasn't much simulated violence to people or things. But

with the exception of people having intercourse with aii-

mals, I can’t think of any other type of carnal relationship

that could be simulated that was not done in this play.

There may be some that I have missed out on. And also

it is beyond my imagination to imagine any fouler, more

indecent, vile, offensive language than was used, not at

one time but throughout the entire production. I word

hesitate to do so, there are some women present in the

courtroom, but I can give you some examples of that if

you'd like.

THE COURT: Cross examine.

CROSS EXAMINATION

BY MR. ALLEY:

Q What burlesque have you seen and where, Doctor?

A It has been some years but I was in New York and

I don’t remember the name. I was in Chicago one time

and I have seen burlesque shows in both those and also

in Tokyo, * * *

o 6 0

[208] And as I get it, the individual is sort of tempted

to do so because he is dissatisfied with some things that

happen. In the end, he fails to do that. He fails to

go to the street and as I read the play, he meets his death

as a result of not having heeded the advice given him.

Now, that's the social issue that presents to me, is ig-

nore what your parents say, ignore what the school says,

ignore the church and come live in the street with us.

Q And this is the only social issue of our time that this

Testimony of John Ellis — Cross Ex.) Testimony ef Coyel Ricketts — Direct Ex.

play comments on, in your opinion?

A That's the overriding message to me.

Q That's not what I asked you, sir.

A It comments on — comments on nudity. You have

mentioned that. It comments on drugs. Those are both

important issues right now. It comments on profanity.

It comments on the Vietnam War especially. It com-

ments on politics because, LB] was prominently mentioned.

I understand it's been changed to Spiro T.

It comments in one way or another on most the social

issues facing this country. But the overriding message

is forget all that, come live in the street with me.

TESTIMONY OF COYEL RICKETTS

DIRECT EXAMINATION

BY MR. NELSON:

12200 A Well, before the play started, seems the cast

was generally congregated throughout the stage area. Of

course, the stage was a little dark at that time but you

could see them just moving about and the orchestra,

of course, was tuning up the various instruments and then

some of the actors and actresses came out on the stage

with huge boquets of flowers, long-stemmed flowers and

began throwing these flowers into the audience. And one

girl in particular, I think it was Sheila, came out with a

bunch of these flowers and she was throwing them. On

her costume right at her crotch she had a huge cherry

and after they finished throwing the flowers into the audi-

ence, why, she moved back stage about center stage, I

guess, and sat down and spread her legs real far apart.

Q lI see. Was this clearly visible to you, sir?

Testimony of Coyel Ricketts — Direct Examination

Beg your pardon?

Was this clearly visible to you?

Yes.

Would you tell us then what happened in — dur-

ing the first monologue in the play by, I believe, the char-

acter known as Berger, starting on Page 1-3 where he in-

troduces himself?

A You want me to read the entire dialogue there?

QI think it's already been read but —

12211 A Hello, my name is George Berger, but I

don't dig George. So just call me Banana Berger, or Cheese

Burger, Unzipper Berge, Pull em down Berger, Karma

Berger, Pitts Berger, Take em on Berger, Up your Berger,”

and he gave this sign when he —

Q (Interposing) Did he give it to the audience or

who?

A To the audience.

Q Isee. What did he do after that, sir?

A He took his pants off and he threw them into the

crowd and they landed about first, second or third row.

Someone caught them, I guess. Then he came off stage.

He was wearing a pair of red, more or less, jockey shorts,

I would call them, heavily beaded.

And he came off the stage. He played with these beads

in such a manner as he was very, very — I don't know what

he was trying to do, in case — gave an idea of masturba-

tion, more or less.

And then he went into the crowd and he spotted a lady;

sat on the back rows of the seat. The seats, of course,

were just regular theatrical seats. He sat on the back of

these seats with his legs spread out with the shorts on and

he pointed to this lady and said, “Look at her, she is scared

shitless.”

2 2

Testimony of Coye! Ricketts — Direct Examination

That was the first thing that I heard him say [222]

there and when he came out in the crowd.

Q Have you read the script, sir?

A Yes, sir.

Q Is this in this script?

Xx No, sir.

Q Now, let's progress on to Page 1-5 there where they

are singing the song, “Sodomy, Fellatio, Cunnilingus, Pe-

derasty, Father, why do these words sound so nasty, mas-

turbation can be fun.”

THE COURT: What page?

MR. NELSON: Page 1-5, your Honor.

Q Can you tell us what the cast was doing during

the singing of these words?

A They were going through all these motions of sex

intercourse, more or less, I'd call it dry sex or call it simu-

lated sex: but. anyway, it was about three or four males,

one female — female was in second, I think, and they were

all back — I mean, going back to back in a fashion like

they were having intercourse and after it was over the

girl said, “I want to thank the last boy that came,” or, “The

last man that came on.” That was the fifth man and that

was Hud. I think, one of the chracters, Hud, that was the

last man.

Q Now, during the time it says, “Masturbation can be

fun, join the holy orgy, kama sutra everyone,” who was

[223] singing this, was it center stage or in the wings or —

A (Interposing) Beg your pardon?

Q The character who was singing, “Masturbation can

be fun, join the holy orgy, kama sutra everyone,” was he

on center stage or was he to the side of the stage?

A He was on center stage.

Q And what was going on as to this character at that

time?

Testimony of Coyel Ricketts — Direct Examination

A He had a red microphone — red colored microphone

about this long and, of course, the microphone, where the

voice goes into it is a bulb, you might call it, sticks out

a little and he had it between his legs and he was lying

flat on his back and he goes through a motion of masturba-

tion there, real vivid, I mean, there’s no question about

it. And when he finishes, he moves his leg a little bit and

the microphone hangs limp, just a perfect portrayal, almost.

Q Now, let’s move along. Late in the first act towards

the end where the nude scene comes in, Mr. Ricketts, could

you describe this nude scene to us?

A Well, the nude scene came right at the close of the

first act and it was a — it was singing. There was singing

and the stage lights were down, not too dim, but they were

down and this all — this all of a sudden, these — about two

rows, I think, of nude, completely nude male and female

— completely nude, visible in every sence (sic) of the word.

[224] I guess it lasted, I don't know, just seems to be like

maybe $0 seconds or something like that, the nude scene;

but there is no question about it, it was visible in every

sense of the word and it seemed to me like the males who

were more malish than some males are were in the front

row, and the best looking girls were also in the front

row. This is just an observation that I got.

Q How long did this nude scene last, did you say?

A I'd say, seemed to me like 30 seconds, that's an es-

timate on my part. °

Q And were the private parts of these individuals —

A (Interposing) Definitely.

Q Visible?

A Yes, sir, definitely.

Q Okay. Now, then, let's go on to the second act.

I refer to Page 2-6 where the tribe picks up the picture

Testimony of Coyel Ricketts — Direct Examination; Cress Examination

of the — let's see, I am not sure that's the page or not.

But, the —

A (Interposing) Mick Jagger.

Q Yes. That's six, 2-6, where the tribe picks up the

picture of Mick Jagger and it's eventually placed on the

stage and one of the characters comes over and —

(229) THE COURT: All right. Were there other

matters not in the script that you heard?

THE WITNESS: Oh, I think this was in the script,

anyone who says anything is bad about marijuana is full

of shit, I think that’s in the script.

MR. NELSON: Excuse me, one other place — this is

relevant — is the nude scene in the script, does the script

tell the players to go nude on stage?

THE WITNESS: No, no, no indication whatever there

will be a nude scene. All of a sudden, bingo, it appears; no

indication.

THE COURT: All right. Now, do you wish to have

Mr. Thrasher return before you take up any cross examina-

tion?

MR. ALLEY: Makes no difference to me, your Honor.

I was just — thought maybe it might be an accommodation

to Mr. Thrasher.

TESTIMONY OF COYEL RICKETTS

CROSS EXAMINATION

BY MR. ALLEY:

1240 Q Yes, sir. Did you see anything in this play

about the Vietnam War?

Testimeny ef Coyel Ricketts — Cross Examination

A Oh, yes, yes.

Q Well, would you tell us what you saw about it?

A 1 saw the scene where the — where he pisses on

draft card and threatens to burn it and heard the, “Hell,

no, I won't go,” thing; and I heard the — all the dissent

there at the last where Claude, I think, is brought in ly-

ing on the sheet. I saw all that. I saw the entire per-

formance.

Q All right, sir. What, basically what did you derive

from these comments on the Vietnam War?

4 That they were against the Vietnam War.

Q All right, sir. Is this contrary to your philosophy?

A The Vietnam War situation has changed quite a

bit since this play was played. And I think that — that

at this time | had a son in the Army. I was very upset

about it. I would take this directly against my philosophy,

yes, I could say that.

2 But you do admit —

A (Interposing) Yes, I could say 1 don't agree with

this at all.

Q But you do admit that the overall tenure of the

241] country since this play —

(Interposing) At this time.

— was produced has changed?

Yes.

Considering the Vietnam War?

Yes.

Do you think this play might have had anything to

do with that?

A Well, that, I can't answer you; wouldn't be fair. I

don't know whether it had anything —

Q (Interposing) You don’t know whether it did or

not?

A It could have.

20 222

Testimeny ef Ceyel Ricketts — Cross Examination

Q All right, sir. What did you say?

A It could be a contributing factor.

Q All right, sir. What did you see in this play con-

cerning draft?

A Draft?

Q Yes, what was the general import to you of the com-

ments of the draft?

A Trying every way in the world to evade it, anything

necessary to evade it.

Q All right, sir. They disagreed with the draft?

A Absolutely.

Q Now, has the law regarding draft changed to your

[242] knowledge since this play first opened?

A Yes, I think it’s been lowered because of the pulling

out of troops in Vietnam. Naturally you don’t need the —

I think the draft quota has been lowered. I think the

women have become status with the draft or will be.

Q Have not the entire system of choosing who is draft-

ed and who is not been changed, sir?

Alam not too sure, used to be built mostly on scholas-

tic exceptions and things like this. This could have

changed. I haven't kept abreast of the recent draft law

since my son has been in the Army and out.

Q You are not aware, now, they have birthday, what-

ever your birthday and draw —

A (Interposing) I am sure I have read that, yes, and

drawed out of a huge — you have a new draft commissioner,

too. I think Hershey retired and another one set his own

patterns. I guess everything changes when —

Q (Interposing) Or Congress changes the law?

A Congress changes the law, definitely.

Q Do you think perhaps this play had anything to do

with that?

A Well, everything together, this play could be — could

Testimony of Coyel Ricketts — Cross Examination

have been a contributing factor, I mean, I don't know.

I can’t answer that yes or no.

Q Do you think dissent is valid in this country?

12431 A Did I think what?

Q Dissent is valid in this country?

A Sex?

Q Dissent.

A Dissent? Oh, sure, dissent is valid. I mean, you can

dissent any time you want. That's freedom.

Q_ Except on the stage in the civic Auditorium here?

4 Except when you dissent with nude scenes and the

way they — what goes along with what they did in their

dissention, the way they conducted —

Q_ (Interposing) They can dissent in your opinion but

not if there is a nude scene?

A How can they dissent by masturbation? What are

they dissenting about or simulating dry sex? What are they

dissenting?

Q_ So you're only objecting then to certain portions of

the play?

A No, I am not.

Q_ I am trying to understand.

A lam not objecting to any certain portions. I object

to the whole play.

Q You are not objecting to any portions of the play?

A I said any certain portions.

2 Oh, all right, sir. You are objecting to the [244]

whole play?

X To what I saw.

Q The play in Charleston, South Carolina, the play

Hair“, and you are objecting to the total play?

Xx I just said what I saw and that's all.

Q You did say you saw the Vietnam War protest?

A Uh-huh.

Testimony ef Coyel Ricketts — Cross Examination

Q You did say you saw the draft protest, you are ob-

jecting to that, then?

A Go back to the time that scene was done and I would

have been objecting to that, yes.

Q_ And you are objecting to the people in Chattanooga

seeing that?

A None of my business what the people of Chatta-

nooga see. I am just telling you — what they saw, I can't

decide. What they see and don't sce, I am not a censor.

Q We went through this before.

A Beg your pardon?

Q_ We went through this once before, you kept saying,

“I don't object o what the people of Chattanooga see.”

You can object to what they sce in Memorial Auditorium,

can you not?

A Yes, and I wouldn't bring it to the Memorial Audi-

torium, neither would I vote to bring to the Tivoli The-

atre. If you are asking that question, I will answer it [245]

directly. All right, 1 answered you.

Q That's what J am asking, as far as using Memorial

\uditorium, you do not want the people of Chattanooga to

see this play?

A I don’t want it played in Memorial Auditorium or

the Tivoli Theatre. I would not advocate it, if I had a

chance to, I'd vote against it again.

Q You are against even the portions of it concerning the

Vietnam War?

A I am against the play being shown because of what

I saw in the play.

Q Well, this is what I am trying — I am not sure I

understand your testimony.

A Iam not sure — I am trying to understand your

question, either.

Testimony of Ceyel Ricketts — Cross Examination

Q You said you don’t object to dissent but, I object

to dissent where there is a nude scene involved.” Now, I

am saying, are you objecting to the nude scene alone and

then without it —

A (Interposing) Oh, no, no.

Q — dissent would be valid?

A Lam not objecting to the nude scene alone. | am

objecting to the idea on drugs, for instance.

Q 1 am talking about as far as that one idea.

A One idea, I object to the nude scene, yes.

[246] Q Well, what about the Vietnam War portions?

A If it was back when this play was probably written,

the script was written, I would have objected to that atti-

tude, yes. But now —

Q (Interposing) This April, 1972.

A Well, the Vietnam War has changed. I wouldn't

strongly object to that.

Q You would a little bit?

A No, I wouldn't go either way on it.

Q What about the draft?

A Well, the draft, same way. Of course, the draft

laws have been changed. That's been taken care of.

Q You were — so you wouldn't object?

A Qh, no, not to any great extent.

Q To any great extent, this is what I don’t understand.

Would you or would you not object to this?

A No, not — not too strongly. I might have a mild

objection.

Q You might have a mild objection? Do you or do

you not have a mild objection?

A To the draft?

Q To the draft as portrayed in this play.

A Oh, yes, I object to the way it's portrayed in the play,

yes, yes.

Testimony of Coye! Ricketts — Cross Examination

Q All right, sir. What about the ecology comments

[247] in the play, what did you derive from them?

A Well, there is a lot of facts in the ecology scene, pure

air and things like that. The ecology, you know, is in

so much in demand now, so much discussed over, its bound

to be popular. I think they were ahead of their times a

little bit in that scene.

Q You think they were ahead of their times in that

scene? Do you think that scene might, or this portion of

that play might have had some impact on the thinking of

this country towards ecology?

A Could have done.

Q Could have done? All right, sir. And you do say

that the total idea of this country is now more in line with

what the play portrays?

A No, no, no, not — about what?

Q_ The ecology.

A Ecology? Yes, yes.

2 Ecology. Issue on the Vietnam War?

A Discussing ecology issue, yes.

Q And the same would be true of the Vietnam War

ue?

A Yes.

12521 Q Does that mean the second act?

& Yes, has to be the second act.

Q All right, sir. The play you saw, that’s where this

song occurred, in the second act?

A 2-8. I presume it's the second act. Yeah, has to be

because it's so close.

Q So the song by the three black girls and the song

by the three white girls occurred in the second act, this is

the point?

Testimony of Ceyel Ricketts — Cress Examination

A Let me verify it, will you, please?

Q Yes, sir. Think you found one, you will find the

other one right next to it.

A Yes, Act 2 because Act 2 is way back here, starts

on 2-1 is Act 2, so this is — this would be Act 2.

Q Definitely Act 2?

A Yes.

Q All right, sir. Now, what did you derive from that?

A Well, I derived that colored girls like white boys

and white boys like colored girls sexually.

Well, this comment on racism, did this offend you?

A I can't define that as racism. I don’t know. I can't

definitely define —

[253] Q (Interposing) Do you think it's a valid com-

ment?

A Beg your pardon?

Do you think this is a valid comment?

A Well, it could well be. I can't dispute it. I see

where people on the University of Chattanooga campus yes-

terday, told the colored boys that every time in their life

they d had desire for a white woman so I guess it’s pretty

prevalent among —

Q (Interposing) Let's — excuse me, did you see any

satire in this script?

A Beg your pardon?

Did you note any satire in the script?

A No, what do you mean by satire?

Q Making fun of? Did you see it in the play, sir?

A Not that I recall. I don't know if they are making

fun.

Q So this could no have been a satirical comedy?

A It could have been, I mean, in some respects it could

have been.

Q All right. Did you enjoy any portions of it, sir?

Testimony of Ceyel Ricketts — Cross Examination

A Did I do what?

2 Enjoy any portions of the play?

A Well, from the opening number, Aquarius, the

music, I guess, and probably Let The Sunshine In was but

[254] even during that, the bodies were entwined in the

Aquarius number, one to the other; so it was after that,

in between that it was complete.

Q Bodies entwined, male and female?

A Uh-huh, male and male.

Q Male and male?

A I guess they were simulating love, Aquarius being

the age of love.

Bodies were entwined, they were very close together?

Embracing, yes.

Embracing, sir? Have you ever been to a dance?

Been a long time, sir, about past that stage.

You haven't been to any recently, then?

No.

All right, sir. Would it surprise you to know that

sometimes male and female bodies are entwined dancing in

Chattanooga, Tennessee?

X Not like these were entwined, I believe.

Q You say so but you haven't seen any in a long

time?

Xx Haven't seen anything like this in a long time, either.

Q All right, sir. You are not saying, then, that this is

not occurring in Chattanooga?

12551 A I can’t say, I haven't been there.

Q Of course, sir, you are not claiming expertise in the

theatre, are you?

A Beg your pardon?

Q You are not claiming any expertise in the theatre,

are you?

A No.

OOO

Testimony of Ceyel Ricketts — Cress Examination

Q You are just an average citizen in Chattanooga?

A I call myself average.

Q All right. Now, you said you hadn't seen anything

like this at all on the live stage?

A Huh-uh.

Q Where have you seen things like this?

A Movies.

Q Bey your pardon?

A In movies.

ln movies? Which movies have you seen?

A Well, I was in the United States Marshal's office

16½ years. We confiscated many films and I have seen

them there. That’s—

Q (Interposing) Was it part of your duty as United

States Marshal to view these films you confiscated?

A Worked with the Postal Department and United

States Attorney's office, I could view the films, yes.

Q You say you could view them, I say was it part [256]

of your duties to view them?

A Well, not necessarily but I saw them. They were —

let's put it this way, the films were placed in my custody

if they were used as evidence when I was a marshal.

Q Who's Mick Jagger?

K Mick Jagger? I guess he's a rock singer.

Q You guess?

A Yes, really, I think he is, I think. I have never

heard, I don’t think I have ever heard a recording by

him but I believe—

Q (Interposing) Had you ever heard his name before

the play?

A Yes.

Q To your knowledge?

A Yes, I think I have, yes, I have heard his name.

ene

Testimony of Coyel Ricketts — Cress Examination

Q When they said in the play, “Mick Jagger,” you knew

immediately who they were talking about?

A Didn't dawn on me, no, didn’t connect him with rock

singing. I didn't know him that well. I don't know him

that well. I just believe he is a rock singer.

Q You knew some famous figure, though?

A Yeah.

(264) A Well—

x (Interposing) I'd say less than 50 percent.

Q Less than 50 percent? Would you say less than 20

percent?

X I'd say over 20 percent probably.

Q In your opinion, then, over 20 percent of the time

spent on the stage on this play, simulated acts were—this

was the time it was involved in playing simulated—showing

simulated sex acts other than when the music was piaying?

A Well, it was continuous, practically.

Q Continuous?

A Practically. Some of the things that hadn't been

brought out here was the fact that even during when

there was no simulation of sex, they'd have their feet up

between each other's legs on the floor, tickling with their

toes and things. If you try to arrive at the time it takes to

go through all this, it’s almost impossible.

Q You heard Commissioner Conrad testify yesterday,

did you not?

A Yes.

Testimony ef Albert 1. Gresham — Direct Examination

TESTIMONY OF ALBERT L. GRESHAM

DIRECT EXAMINATION

BY MR. ALLEY:

[280] Q Would you state your name, please, sir?

Albert Gresham.

Mr. Gresham, what is your address?

315½ Chambliss Street.

Here in Chattanooga?

Yes.

What is your occupation, sir?

I am the director of the Chattanooga Little Theare.

Chattanooga Little Theatre here?

Yes.

What is your background in the theatre, sir?

I have been a professional director since 1950. The

last seven years have been as director of the Little Theatre

here in Chattanooga. Previous to that, I was director with

Educational Television in Memphis, WKNO, for seven

years, and producer-director for Commercial Television for

five years.

FPOPD PDH KPOD PO

12821 Q All right, sir. Would you be so kind as to

give the Court and the jury your comments concerning

what you derived from examining this libretto?

MR. COLLINS: Now, if your Honor please, I would

like to interpose an objection at this time to this witness

attempting to testify upon the issue before this jury as it

relates to the offer to produce “Hair” in Chattanooga for

the reason that I am informed that this witness has never

seen “Hair” produced. The proof is undisputed in this

record that the actual production of “Hair” deviates sub-

„„ 244% „„ „600

Testimony of Albert I. Gresham — Direct Examination

stantially from the written script, that the conduct and the

action that takes place upon the stage, very little is depicted

or referred to in this script; so, if he seeks to comment or

analyze strictly upon this script, he is taking only a portion

of the total product and it's the total product that this

jury will be asked to pass upon.

THE COURT: These are matters you can develop

upon examination or cross examination of the witness.

Q You may answer.

A May I use notes?

Q Yes, sir, you may.

A Studying the libretto, the script, I find that the

theme of the play—what I did with it was study it and

analyze it just as I would if I were directing the play,

take the play apart, see how it is put together, what is

[283] going on in the play; and why is it put together in

this way? What are the elements, theatrical elements in

the play that can be utilized in a production and putting it

on stage? What is the theme of the play? What is it about

and how would you develop this theme on stage, you know,

as you transfer it back to the stage.

So I found that the theme of the play is the need for

rebirth or change in the Christian sense, he must be born

again in order to enter the kingdom of heaven, in other

words, there must be a change, rebirth, not only in indi-

viduals but through the individuals, a change in the culture

or the society before certain desirable things take place in

that society.

In this sense, the play is a revolutionary play and uses,

underlining this fact, posters, banners, a rally in the play,

charts, things of that sort. This theme is stated at the

every beginning of the play in the first song, “Aquarius.”

The words say, “Harmony and understanding, sympathy

and trust abounding, no more falsehoods or derisions,”

Testimeny of Albert 1. Gresham — Direct Examination

a change, “Golden living dreams of visions, mystic crystal

revelation, and the minds true liberation,” this is what

they want in the play. “Peace will guide the planets and

love will steer the stars.” So there needs to be a movement,

a change, a rebirth to these things.

The play is strange in structure in that it is [284] not

the standard, traditional play form, which is in keeping

with the theme of the play. They want a change from the

traditional, from the norm and so they do not write the

traditional play. The traditional form of a play is the

exposure—you meet who the people are in the play. Then

the next step, traditionally, is a rising action or a conflict—

one person in the play wants something, somebody else in

the play wants something else. There is a conflict and this

builds the action of the play.

The next step is the climax of the play, one side or the

other wins; and then falling action, everything is resolved.

Now, these playwrights in this play did not use this

traditional form. They go back to the beginnings of

theatre and borrow from primitive rituals, the very be-

ginning of theatre, a ritual form, a right, a sacrificial right,

it's a ceremony, not just a story but a ceremony performed

on the stage. It's a ceremony in the form of the ritual

sacrifice and it’s the destruction of something of value

for appeasement of the Gods so that something of value

will result so that the people may live in peace and prosper.

It's the sacrifice of the lamb, sacrifice of the virgins,

sacrifice of something good so that something good will

result. What I am talking about is, this Claude is the

chosen one, the sacrificial lamb. He is drafted and [285]

destroyed in the course of the play. In the play, he is

identified early in the play with reigious matters, sacrifices.

He says, idengifying himself, “I am a genius, genius. I

believe in God and I believe that God believes in Ciaude,

Testimeny ef Albert i. Gresham — Direct Examination

that's me.” He says, I am Aquarius, destined for greatness

or madness.” He says, “I got life Mother, I got laughs,

Sister, I got freedom, Brother, I got good times, Man, and

I am going to spread it around the world, Brother, I am

going to spread it around the world, Sister.”

In the religious feeling of the brother, sister, I am

going to spread it around the world, Brother, so everybody

knows what I got.” He says in the play, “I am the son

of God, don't mess with me.” He says, Bless you, bless

you, bless you, I believe in Jesus,” and he throws flowers to

the tribe.

He is a—the chosen one. He is identified through the

words and the play with martyrs. His identification as the

chosen one is strengthened in the title song, “They'll be ga

ga at the go go, when they see me in my togo.”

MR. COLLINS: Your Honor please, I'd like to inter-

pose an objection to him reading his testimony.

MR. ALLY: Merely referring to his notes.

A I haven't memorized the lines from the play, I am

sorry.

Q Would you like to refer to-

[286] THE COURT: (Interposing) He may state his

answer.

Q —any portion you want to, you may refer to the

actual page.

A Oh, fine. Well, I have just copied from that to this

to refer to so I know What's

Q_ (Interposing) You may answer.

A So, anyway, the chosen one. Another point that

identifies him as this early in the play, in the title song

“Hair” and “They'll be ga ga at the go go, when they see

me in my togo, my togo made of blond brilliantined bibli-

cal hair, my hair like Jesus wore it,” in the identification of

the martyr, “Hallelujah, I adore it. Mallelujah Mary loved

Testimeny of Albert 1. Gresham — Direct Examination

her son, why don’t my mother love me? Hair, Hair, Flow it,

show it, long as God can grow it, my hair.“ The identifi-

cation with the deity.

He is described by characters in the play as Claude, the

purest mind on Avenue C; described as the most beautiful

beast in the forest. Again the sacrificial virgin, something

of value that must be sacrificed to the gods for them to

respond and give the people peace, prosperity and so forth.

Now, it’s not a—so the tension of the play comes because

it is not a willing sacrifice. He doesn't know—he doesn't

want to be sacrified. He says, “They are [287] not going

to get me. That's it. They are not going to get me,” he

says carly in the play. Then by the end of the first act,

he is examining himself, his life, wondering who he is, what

is the purpose of his life? Is there a purpose in his life?

The song that ends the first act is Where do I go? Follow

the children. Where do I go? Follow their smiles. Is there

an answer in their sweet faces that tells me why I live and

die? Follow the wind song. Follow the thunder. Follow

the neon in young lovers eyes. Where do I go? Follow my

heartbeat. Where do I go? Follow my hand. Where will

they lead me? And will I ever discover why I live and

die?”

And that takes us to the intermission of the play and

you see the movement. He is being set up for the sacrifice.

Now, in order for the sacrifice to have any meaning, the

audience must identify with the people on the stage. They

have got to be a part of the ritual in this structure. They

are a part of the play if the sacrifice is to mean anything

to them.

So in the structure of the play there are all the atempts

to involve the audience. They talk to the audience. They

give things to the audiences, things of that sort, to involve

Testimony of Albert I. Gresham — Direct Examination

them in this ceremony that is going on, the ceremony is the

sacrifice.

Now, for it to have meaning, there must be [288] prob-

lems which make the sacrifice necessary. Why is he to

die, you know, what is wrong? That he must die to be

set right? Some of the problems stated in the play are lack

of love, harmony and understanding, sympathy and trust,

freedom. They deal with pollution, hypocrisy, racism, the

alienation of the generations, loneliness, war and the instru-

ments of war, killing the internalization, the dehumaniza-

tion Sf man, the exportation of people, resources; false social

and moral values, that is, people who say one thing and

practice something else, preach one thing and do something

else. These things that they say are wrong need to be cor-

rected and they offer a sacrifice to correct this.

Another one is violence in the streets, a rape in the

streets of the play, something's wrong that needs to be

corrected so they are offering the sacrifice.

Now, before the play started, the tribe, you sce, the

ritual, call it a tribe, has made some attempts to deal

with the problem. They banded together. They refused

to live and recognize these standards of behavior of values

which they don’t approve of. They try to escape through

the use of drugs. They ridicule and mock the things that

they don't like to downgrade it. They treat as nonsense

what they consider nonsense.

Now, these points here are a couple of flaws in the

play in that so much time is spent on the specific [289]

social problems like pollution or racism, that it gets in

the way, really, of the forward movement of the play. And

the ridicule tends to obscure the—some of the points in the

play. When they make light of something, it’s easy to

assume that they don't feel deeply about it but sometimes

we do that, make light of something for which we feel

Testimeny of Albert 1. Gresham — Direct Examination

very deeply. So as the play progresses, following this line

as the movement of sacrifice nears, the tribe deplore the

need for the sacrifice but at the same time they recognize

the reasons for it. They say, “How dare they try to end this

beauty?” They say, you see, they say, “Jn this dive, we

rediscovered sensation.” Again, rebirth, a change to some-

thing better; “Walking in space we find the purpose of

peace. The beauty of life you can no longer hide. Your

eyes are open wide,” and the momentum of the play builds

as we get closer to the sacrifice; “The falsehoods and de-

risions,” as they are called in the play, the things they

don’t like are presented all over again in a nightmare form,

in a trip and which ends with a mock death of Claude as

part of the nightmare and the statement of the play. The

thing is stated three times; very beginning of the play, you

know, in the ritual of cutting a piece of Claude's hair and

burning it, you see, making the sacrifice. Here's the man

who's going to be sacrificed; in the nightmare, the bad trip

in the play, he is destroyed, he is killed. And at the end

of the nightmare, [290] he is identified with his—the mean-

ing of his death is suggested and the larger meaning of his

death and his death is associated with the death of youth

sacrificed in war, the sacrifice of youth in war, the death

of something of value so that something of value to society

will result, you see.

In the song, “Ripped open by metal explosions,” climax

of the nightmare, it's war, “Caught in barbed wire, fireball

bullet shock, bayonet electricity, shrapnelled throbbing

meat, electronic data.”

We are—he is being sacrified as youth is sacrified in war.

Then, in the climax of the play and midst this scene

of destruction, it is immediately followed by its opposite—

what is man capable of? What is man, the poet's view of

man in contrast to this death and destruction, metal ex-

Testimony of Albert l. Gresham — Direct L=mination

plosion, the barbed wire and so forth? They say, “What a

piece of work is man,” immediately following—sharp con-

trast to the death and destruction. They say, “What a

piece of work is man? How noble in reason, how infinite

in faculties. In form, in moving, how express and admira-

ble. In action, how like an angel. In apprehension how like

a God.

You see the ironic contrast, which is theatrical structure

and this is really the high point of the play.

291] Contrast between that man can be and what he is

as demonstrated by the nightmare, leaves the tribe dejected,

low and frustrated and they are at the low point, a down

point, now, you see, there is need for the sacrifice. You

have this war, destruction, death; but man can be a piece

of work, noble in reason and so forth. And at this point

in the play, Claude begins to accept his role as the sacrifice,

sacrificial lamb. He says at this point, “Oh, my God, I

feel lonely. I want to sleep in mushrooms and eat the sun

because I know where it's at. I know what I want to be,

invisible. I could float around and slip into people's

minds and know exactly what they are doing and thinking.

I could go anywhere, do anything. I could perform mira

cles. Again he says, That's the only thing I want to do

or be on this dirt.”

At this point, the tribe touch him. He is their sacrifice.

He says, in recognition of his new role, “I wish the fuck

it would snow at least.“ Kind of shocking thing to say

but at this point he doesn't want to die but he feels it's

necessary. He's being pushed into something he doesn't

want to do but he has to do. The word adds tension and

strength to the line. It's recognizable to the aduience as

contemporary. It's what they would say or could say in a

similar circumstance. It doesn't have anything to do with

sex, by the way. It means a basic elemental force in the

Testimony ef Albert l. Gresham — Direct Examination

[292] life of man. He could say, “I wish to God it would

snow,” but he can't say that because he is the emissary to

God. He is the martyr, you see. He is the representative.

He can't use the Lord's name in vain but he has—but in

order to give strength to the line, he has to use something

which is basic, strong and to the point that people can

recognize as this expressing his frustrations and says, “I wish

to fuck it would snow.” He says, “I wish it was the biggest

fucking snowstorm,” again elemental force. “Blizzards come

down in sheets. Come on mountains, rivers, oceans, forests,

rabbits, cover everything in beautiful white holy snow.”

Again, the identification with the martyr. “I could hide

out a hermit and hang on a cross and eat cornflakes.” The

identification with the martyr, the identification with peo-

ple—eat cornflakes. He used both, you see.

Then, at this point in the play, it begins to climb. The

structure which is symbolic of his ascension is, and as he

climbs, the members of the tribe call him down. He asks

them, “Are we going some place together,” and they answer,

“Yeah.”

He says, “Tonight is the last night of the world, we

stick together.” And he disappears, it’s time for the sacrifice.

Although he is invisible, he still has an effect on the tribe.

He is gone. They can't see him. He sings a song and they

repeat the song, although at the same time [293] they are

saying, “Where is he? Where is Claude? He should be

here so that he will know he is not there.” He still has an

effect on them, you see.

He says to them, “I am here, like it or not, they got

me.” You see, taking place. He says, “Somewhere inside

something there is a rush of greatness, who knows what

stands in front of our lives, what future,” he says, “I feel like

I died.” He is invisible. “Vitamin C, I can perform mira-

cles. That's the only thing I want to do on this dirt if I

—— LO ro

——

* — —

ane :

Testimony of Albert |. Gresham — Direct Examination

am unseen. I believe in God, I believe that God believes

in Cluade, thats me. Sacrifice is taking place.

And then the tribe sings the final song calling for the

results of the sacrifice now he's dead. Let the Sunshine in.

Let the—this goodness, this understanding and love take

place and we have our sacrifice. That's basically what is

in the book or the movement of it and the line of action,

this is the story in the play.

Now, this sacrifice has a background in theatre. As I

say, it's based on primitive religious rituals. The Greek

tragedy is much the same way. Oedipus Rex dies, you

know, dies for the people. He must be destroyed before

some good results for society. He must be the one to die.

He is the chosen one.

Now, Christ, of course, is the most—story that comes

most immediately to mind of this kind of sacrifice. [294]

Other people in the theatre review similar things. Ibsen

in “Enemy of the People,” a main is destroyed trying to

better society. And at the end is struggling to improve

society. So it's not an unusual theme in a play. But the

going directly to the ritual instead of doing it as a more

traditional story is unusual.

Now, if the ritual is to be effected theatrically, there is

some things that must be on the stage. The tribe, the

people, the cast, the people on ‘the stage performing the

ritual along with the audience must be outcasts. They must

need something. They must be in rebellion against the

status quo and they must be recognized by the audience as

contemporary with the audience and real to the audience;

otherwise, it becomes an abstract thing, you know, it doesn't

mean anything to you as you watch the play unless you

can identify with the people on the stage. You got to

recognize them, say, “Yes, that's a real person,” you know,

“I know what that person is like,” in order the ritual to

Testimony of Albert l. Gresham — Direct Examination

have any meaning for the audience. There must be some-

thing of value needed in return for the sacrifice.

Stated quite often in the play what they want is love,

peace, the mind is true, liberation — they say in the second

song in the play—stated life on earth can be sweet. It can

be but something has to be done to make it that way.

Now, the play is very poetic in form and poetry [295]

doesn't go over too well in the theatre, as a rule. Play-

wrights have conquered this to a great extent by balancing

the poetic words, words that we don’t hear too often wich

words that are extremely real, that we hear every day and

usually have an unpleasant connotation to balance the

poetic feeling. For instance, “The spade, nigger, jungle

bunny, underwear, garbage, puss, piss, germs” words used

in the play but they balance and they are necessary so the

audience will listen to it and hear the words such as, “Astro,

catoclism, ectoplasm, sonic armor, medusan cord, void.”

And another trick the playwrights use to make it real to

the audience is that they use names of people that you know,

“Dinah Shore, James Brown, Tonto, Rockefeller, Hum-

phrey, Wallace,” and by making these real people a part

of the play, part of the references of the play, then the

audience is more ready to accept the myth people or the

abstract people.

The historical people, Lucifer, Lincoln, Washington,

John Smith, Pocahontas—these names which give the play

the historical reference, you see.

Some of the other theatrical devices used by the play-

wrights to capture a..d hold the attention of the audience

while they make their statements is recognition. You nave

to recognize that it's happening, it’s true—humor, [296]

use a great deal of humor; the direct involvement of the

audience, trying to get the audience to participate. You

are the part of the ritual, they keep suggesting by doing—

——— —ꝝ— — —

—

Testimony of Albert l. Gresham — Direct Examination

handing the audience things, involving the audience, talking

directly to the audience, that kind of thing.

The music, of course, is used, the contrast of volume,

the relevance to the lives, the impertinance, surprise,

repetition are all theatrical devices which the play uses,

and they are used in this to make the audience accept

what's being said.

As I say, there are flaws in the play. One is the character

of Berger, who tends to be overwritten, I feel, and over-

shadowed Claude to some extent which sort of hides the

main line of the play. In the production, Berger, if I were

doing the play, I'd down Berger, is what 1 am saying,

because he tends to hide Claude and the main line of the

play.

As I say, another big flaw with the play is the emphasis

on special social problems so that the general — “Something

is rotten in the State of Denmark” — the general social

thing for which — which the movement of the play calls

for, “He is dying for the good of the people,” gets lost

and he is dying for racism, he is dying for pollution, he is

dying for this, that those things get such an emphasis that

he is dying for understanding and love and so forth, it kind

297] of gets kind of lost, that would be my analysis of the

play.

Q All right, sir. Mr. Gresham, as an expert in the

theatre, is this play very significant in the theatre, just

in what context?

A Significant in the theatre?

Q Yes, is it a significant play?

A Yes, I think it’s — it would be compared with “Okla-

homa.” “Oklahoma” in the — before “Oklahoma,” there

was no strong story line, really in musicals. It was mostly

music and there was no real effort in making the story

believable, the little nonsense that went on. But the music

Testimony of Albert 1. Gresham — Direct Examination

Testimony of Donald Klinetelter — Direct Examination

was the main thing and the dance and the pretty girls.

“Oklahoma” came along with the strong story line. Well,

then, the theatre, the time “Hair” came along had reached

the point where the audience for the theatre was a certain

class of people. It was the professional man, the business-

man, the middle class, the upper middle class, the upper

strata of society. When people went to the theatre — “Hair”

came and appealed to the scoiety as a whole. The music was

no longer sweet, pretty, Rogers and Hammerstein, but

it was the music of movement, of life, of the young people,

people who are not necessarily theatre audience. It opened

up wider audiences to the theatre. It brought a new kind

of music to the theatre and a new seriousness even beyond

that of “Oklahoma.

So historically, I think it is a very valuable work in

the theatre.

[298] Q All right, sir. Would you say that the play

had social significance?

A I think that that’s what the play is about. I mean,

as — what I have just said would be an answer to that,

I think. It is about social problems.

TESTIMONY OF DONALD KLINEFELTER

DIRECT EXAMINATION

BY MR. ALLEY:

1310] Q State your name, please, sir.

A Donald Klinefelter (spelling) D-o-n-a-l-d- K-l-i-n-e-

f-e-]-t-e-r.

Q_ What is your address, Mr. Klinefelter?

A 3400 Gayle Drive, Chattanooga, 37412.

Q What is your occupation or profession?

Testimony of Donald Klinefelter — Direct Examin: sion; Cress Examination

A I teach at the University.

Q What subjects do you teach, sir?

A I teach Philosophy and Religion.

Q What is your educational background, sir?

A 1 have a BA from Carleton College and BDMA

Ph.D from the University of Chicago.

CROSS EXAMINATION

BY MR NELSON:

[313] Q Do you remember Berger introducing him-

self to the audience, saying my name is, “George Berger,

Unzipper Berger, Pull em down Berger, Up your Berger,”

and making an obscene gesture to the audience?

A I —would you rephrase the last part of the question,

please?

Q Do you remember him saying, “Up your Berger,” and

then making an obscene gesture to the audience, raising his

finger?

MR. ALLEY: I object to counsel characterizing the

gesture as obscene. I his is what we are here, to try whether

in this context, something is or is not obscene.

MR. NELSON: Very well. I will withdraw that.

Q Do you remember him raising his middle finger at

the audience and leaving the rest of his fingers down?

A I think I do, yes.

Q Do you see any redeeming social value in such acts

as this?

MR. ALLEY: Your Honor, I object. He is asking —

you can't dissect this play portion by portion and say there

[314] is — does this portion have any redeeming social

value, that’s not the issue, either.

Testimeny eof Donald Klinefelter — Cress Examination

MR. NELSON: I think one of the issues —

THE COURT: Overrule the objection.

Q Okay.

A Would you repeat the question, please

Q_ Do you recall Mr. Berger — you lost me — do you

know of any redeeming social value in such gestures as

this to the audience, have for the audience?

A I think in some context it can have redeeming social

value.

Q_ How about this context where he's coming out, his

first presentation to the audience on the stage?

A Yes, it awakened my sensibilities that I was in for

an extraordinary experience.

2 c think that that is very right. I think you said it

better than any of us could and isn’t it true, then, that he

further awakened your sensibilities by taking off his pants

and throwing them down into the audience to some lady

in the first rov >

A I do not recall that episode at all in the Boston per-

formance I saw.

lt wasn’t in it?

A I do not recall it being in that performance.

13151 Q You say the play is adapted for each per-

formance. What do you mean by that, sir?

A I mean that the jokes were tailored to the Boston

audience rather than the San Francisco audience.

But there is a basic script that goes throughout all of

these, is there not?

Yes, I think so, but —

(Interposing) You have only seen it once?

Yes, that's correct.

That was last July 307

Oro

Testimony of Donald Klinefelter — Cress Examination

A That's correct, two years ago.

Q Do you recall seeing sex acts actually performed on

stage, the only being missing that they had their clothes

A Yes.

MR. ALLEY: Object.

Q How many times in that particular performance that

you saw, sir?

13161 A I don't recall how many times.

Q Would you say there was one or few or several or

many?

A I would say several.

Q I see. How long was the nude scene in the Boston

play ;

A I would say four minutes, three or four minutes. It

was — the reason I have difficulty specifying it is that there

were lots of strobe lights flashing and there was a lot of

music accompanying it and my mind was not on the time

factor at all. So I may be inaccurate.

Q Do you recall how many players were on the stage at

that time, approximately?

A I would say ten at least.

Q Were they both male and female

A Yes.

Q Is it not true that all of their private parts were

fully exposed to the audience and in plain sight of the

audience? f

A Well, I couldn't distinguish their private from their

public parts; but the lights were — I mean the lighting

was such and the — I, quite candidly, I had a front row

— front row balcony seat or two or three seats up in the bal-

cony. I could not see at all clearly.

Testimony of Robert Cherin — Direct Examination

13181 Q So, if this was in there, you don’t remember?

A I just do not remember. It may have been in it,

I just don’t recall, I am sorry.

Q Would you have approved of this type of thing?

A I. personally, if that’s relevant, would have approved,

in context of the play, yes.

* 3 *

TESTIMONY OF ROBERT CHERIN

DIRECT EXAMINATION

BY MR. ALLEY:

* * *

(321] * * * It is an event or happening or a set of

circumstances in which a group of young people, that seg-

ment of the population which “Hair” depicts, attend this

setting and the actual reason that it came about that was

during these be-ins, numerous members of those in attend-

ance did, in fact, undress so that it is, first of all, docu-

mentary; second of all, it does signify that the end of the

first act, the hoped for cleansing and rebirth of this so-

ciety which is what “Hair” hopes for, that is the ideology

and philosophy that Hair“ is hoping to depict to its

audience, whether or not it — its audience accepts or de-

nies that ideology or philosophy is entirely up to that audi-

ence — what is hoped for is that it will give them an op-

portunity to think about the major issues that have con-

fronted this country at this time, taking into considera-

tion that “Hair” was done — was written in actuality in

1966, was presented the first time in 1967 and was presented

on Broadway in 1968. :

Those issues which “Hair” deals with were major issues

confronting this country then or have become major is-

sues confronting this country. At the time that “Hair” was

_—

Testimony of Robert Cherin — Direct Examination

presented, the Vietnam War was not a major political is-

sue. I am talking about in 1967, 1966, when it was written.

And the antiwar feelings in this country were of a very

small minority. I will not claim to know the majority

now accepts the antiwar premise. However, let us say that

the minority [322] has grown to great magnitude.

The race issue, although it has confronted this country

for many years, is depicted in “Hair” almost as a spoof in

that what “Hair” is attempting to depict is that 100 years

age the slaves were given their freedom and therefore im-

plied equality. In 1964, the Civil Rights Act was passed

and yet there are still sections in this country where, al-

though they are not slaves, blacks are certainly not equal.

The air pollution problem, which was in 1966, 67 and

68 had a very minor issue in this country and has now

become a major issue. The attitude toward the smoking

of marijuana has altered radically since the time that Hai

was written.

The attitude on sex, which seems to be of major con-

tention in this courtroom, I believe, depicts a segment of

the population who believe that love is more important

than sex and that the hypocrisy that has been involved in

our attitude toward the sexual mores of this country perhaps

is wrong. Whether or not “Hair” preaches free love, I

believe, is argumentative. If they point out the possibili-

ties, if they point out the possibilities of a hypocritic at-

titude toward sex in this country and by virtue of that,

in five years, as in other areas that they have pointed out,

five years later are now slowly turning to, not necessarily

Hair's way of thinking, but they have come along. If

they [323] point out the hypocrisy in our attitudes toward

sex, the fact that although we may not condone sex, do we

or do we not condone adultery — and I am talking about

on a nationwide basis, not necessarily about Chattanooga,

Testimony ef Robert Cherin — Direct Examination

Tennessee — if in five years “Hair” can point those out

to at least a point where maybe the young population feel

that there will be changes or that the young population will

grow out of this rebellious state which they are in and

then turn around and say, “Yes, these things are good,”

at least they have pointed them out for discussion.

Q_ Now, back to the nude scene, what is the setting of

that scene?

A Well, I would beg the Court's induigence while I

at least give some technical figures. The average lighting

on the stage during the balance of the show is 36,800 watts

or kilowatts of light on the stage during the balance of

the show. The lighting in the nude scene, there are some

segments — one is prior to — the cast goes under a canvas

and I might, at this time, interject one thing, and that is

that mention has been made of the fact that the nude scene

is not in the script. The reason, gentlemen, the nude

scene is not is that no member of the cast of “Hair” or

of any cast of any American production of “Hair” has

ever been required by contract to do the nude scene. That

scene is done based on a voluntary basis. I have been in

the audince [324] when as few as, I believe, six was the

smallest number and as many, I think, as 14 — that is the

most that I have personally seen.

To get off of that and back on to the lighting, excuse me,

at the start of the actual — after the cast has come out and

they are standing still and do remain standing still during

that entire 30-second period, which is exactly give, or take,

five seconds, how long the nude scene lasts, the entire com-

pany stands still.

Now, by comparison to that 36,800 watts of lighting dur-

ing the balance of the show, there are, at the start of

that scene 5,000 watts of light. The only way I can

equate that, that is we do know that without infrared film,

Testimony of Robert Cherin — Direct Examination

it has been impossible to photograph that scene and get

it. There's not enough light on it. Somewhere around

ien seconds into the nude scene, there are two beacons,

somewhat similar in function to a — a police revolving light

that, total additional amount of wattage of those two is

2600 watts. So that at the peak, lighting of the nude scene

compared o the 36,800, there are 7600 watis of light on that

stage.

I will not sit here and tell anyone that you cannot see

those forms, but the only thing I can say in defense of

that scene is that it is the closest thing to a live, nude paint-

ing that I have ever witnessed. It is X number of [325]

bodies standing totally still on that stage. That, I think,

covers the nude scene for all purposes.

Q All right, sir. There's been some reference to the

language involved. If the language were excised, taken

out, would this have any change in the effect of the por-

trayal of the play?

A Yes, I believe that and 1 believe it very strongly

that it would change — when a playwright writes a play and

depicts people, it would be as foolish, I would think, since

theatre is somewhat of an exaggeration of real life, for

them to place in a play a construction worker and have

him speak in the speech of a Harvard Law School gradu-

ate. The language that is utilized by the cast of “Hair” is

that language which is now commonly referred to as street

language. But it also has become the language of some

segment of the young population of today. I do not

believe that the four letter word “fuck”, since it's been

said, denotes the sexual act but rather that which — that

of anger or that of emphasis or that of hostility, if it were,

rather than, you know, in the connotation of the act. I

believe that if the language of the play or the language of

Testimony of Robert Cherin — Direct Examination

the characters in the play were changed, it would totally

change the characteristic of the work.

If, for example, you put the arms back on the Venus

de Milo, would you still have the Venus de Milo? 1 [326]

mean, if that is an analogy for anyone to make.

Q All right, sir. This hypocrisy that you say the play

deals with, is this the hypocrisy of X-rated movies, sitting

down and people secretly going to see those and stag films

and things of this nature while at the same time denying

that they see these things?

A Well, I think it deals with that. I think it deals

with, and strangely enough, you know, when they talk

about free love, I think to some degree it discusses — most

people in that terminology are discussing sex without the

bond of matrimony. I think one of the things that the

youth today feel is that is that any worse or better, more

or less hypocritical than the guy who is married and goes

home but has somebody on the side. I do not know if

this is a common phenomenon but I do know, incidental

to my travels, that it does occur and I think to some de-

gree what the kids are trying to say is if you are going to

get married, then do it, but make it stick. If it is only

for the purpose of sex, then question the validity of getting

married. I don't necessarily think that in a country in

which the divorce rate has risen incredibly over the past

ten years that this is such an idiotic question to ask. I

think that’s, you know, realistically what we are talking

about.

Q Why the simulated sex acts?

A Well, I think a lot of it is poking fun at what,

[327] when we were raised with, and “we” being my genera-

tion, as being bad, as being dirty, as being wrong. Coun-

sel for the defense has kept referring to the act of the

gesture of masturbation. I must truthfully admit that I

100

Testimony of Rebert Cherin — Direct Examination

do not find as many simulated sex acts a; they did. How-

ever, in explaining this, there is, you know, a dance per-

formed by a great number of ballet cczupanies. It is com-

monly called a nude pas de deux, which means two dancers

nude on stage doing a ballet. I would not consider this

a simulated sex act basically because there is no sexu-

ality to it.

I do think, for example, and I think maybe with the

masturbation act I can generalize to some degree and that

is I was raised that masturbation was wrong, that it was

— that it would lead to blindness or whatever, I mean,

all the old cliches; and to sonie degree, theatre bases itself

on cliches and I think they are literally lampooning, poking

fun at, satirizing those beliefs.

Q Now, to your knowledge, is the foreign production

of “Hair” different than this play in the United States?

A As with most productions, when an author writes

a play, when three people create a musical, certain specific

rights are given in a contract and certain ific rights

are withheld, not from the producer n rily but for

a control factor, although the new “Hair” could have par-

ticipated in the profits of the London production, they

had [328] absolutely no artistic control. I do know that

I went to London. I saw the London production. I came

back and I screamed. We screamed loud enough here

that there were certain changes made.

However, you know, the limitation of art — and I am

speaking of “art” in the sense of Hair's“ power was very,

very limited by the London ownership. The London —

it was owned by an Englishman. There were certain things

in it that I found objectionable which, you know, need

not be enumerated here, I don’t believe. But we had no

artistic control. “Hair,” the people who control the pro-

duction that is being talked about in this courtroom is not

101

Testimony ef Robert Cherin — Direct Examination

controlled by the same people that control the London

production.

Q All right, sir. Now, to your knowledge, have you

ever seen or have you ever heard of a production of “Hair”

in this country where a poster — large poster or any type

poster of Jesus was on stage?

A Absolutely not. It is not part of the original design

ror is it part of any design of any production which I have

ever seen.

Q All right, sir. How long has it been since “Hair”

tas put out programs with the biographical sketches in-

volved?

K I would be honest to admit in court that I haven't

checked this particular factor. The program which [329]

tas been presented in evidence in this camtrtroom and dis-

flayed to the jury has — was not printed after August

zt of 1969 and has not been for sale in the theatre and

I might add that that particular program is — was up,

until August 15, 1969, only for sale in the Broadway

production. It was a for sale souvenir book and not

tie souvenir program that is handed out as yo Ik in

tie theatre. Since the time of August 15, 1969, ent

frogram has been devised with absolutely no bios of any

ferformer in it. It only contains the bios of the authors,

producer, the set designer, similar type people.

Q Are any of these players depicted in this program

vhich has not been used since August, 1969, in the current

production?

A No, sir.

2 Now, this is why, when Mr. Thrasher testified that

he saw it a year and o half ago or two years ago, we knew

tlat this was impossible for him to pick up this program?

A Yes, sir. When Mr. Thrasher stated that he saw the

slow a year and a half ago or two years ago, I immediately

102

Testimony of Robert Cherin — Direct Examination; Cress Examination

checked because I knew that that particular program had

not been used since the San Francisco company had opened.

I knew approximately that date and, therefore, I knew it

was impossible for him to have purchased it at the time he

thought he saw the show.

{330} Q Has this particular production played Mem-

phis and Nashville?

A Yes, it has played both cities.

Q Has it played Nashville more than once?

A Yes, it has played Nashville twice.

Q Has anyone ever threatened prosecution or anything

of this nature?

MR. NELSON: We object to that, your Honor, it's

not —

MR. ALLEY: All right.

MR. NELSON: — to be considered by the jury.

CROSS EXAMINATION

BY MR. NELSON:

Mr. Cherin, if this production is permitted to go

forward, declared not to be obscene and for other reasons

given permission to play, how much money do you stand

to make?

MR. ALLEY: Your Honor, I object.

THE COURT: He may testify as it may or may not

have something to do with his credibility and weight.

MR. NELSON: Think it has to do with his interest in

the matter.

THECOURT: Yes.

A What is Southeastern's potential profit, is that what

you are asking me?

[331] Q That's correct.

103

Testimony ef Robert Cherin— Cress Examination

A Well, I would say, you know, probably at the moment

is around ten, $11,000.

Q_ You stand to make $11,000 this Sunday if this goes

forward?

A Well, that, yes, I mean — means 1 won't lose — I

mean, you know, I don’t know what we are basing the

figures on at the moment but that seems to be what you

are looking for.

Q Now, then, Mr. Cherin, do you deny that there are

many acts of simulated sex going on in this production?

MR. ALLEY: Your Honor, that's argumentative.

A Many? I don’t, you know, I don’t — I don't know

what many —

Q (Interposing) Let's get a little bit specific here.

A Okay.

Q_ When the players say, believe it's on the insert, 2-8,

“Fly United,” do you deny that he and another player

go across the stage with his front end in close proximity

to the rear end of the female in front of him?

A Yes, do I deny it? No, I do not. I found it very

funny.

Q That's true?

A Yes.

1332 Q Do you deny that in the first act that there

is a scene where there is five men or four men and one

woman, excuse me, sex scene where they are performing

normal and abnormal sexual acts at the same time?

A Yeah, I deny that there are five people performing,

in your terms, unnatural sex acts at the same time.

Q Okay. Let's put it this way, then, Mr. Cherin, where

one man and girl get in embrace in a copulation position

and another fellow comes up behind the girl and gets up

close to her rear end and then two more males come up

and get close to the rear end of the first fellow and the sec-

104

Testimony ef Rebert Cherin — Cress Examination

ond one gets in close proximity to him, do you deny that

that happens.

A No, I do not deny that that happens.

Q You do not deny it?

A No.

Q Okay. Now, do you deny that there are several scenes

where masturbation —

A (Interposing) No, I believe I admitted to that prior

to this.

Q Do you deny that there is a scene where, believe it's

Woof, one of the characters in the play lays down and

performs acts on the poster of Mick Jagger?

A Acts?

Q He —

13333 4 (Interposing) Are you calling kissing a sex

act?

2 He lays down.

A Lays down flat on it? No, I don't deny that but I

deny it's a simulated sex act, certainly.

Q Do you deny that while the song “White Boys” is

being played that there are several, three I believe it is,

white males underneath the stand where the singers are

singing, thrusting their genital area up into the air?

A No. Are you saying below the stand, is that correct,

sir?

Yes.

Yes, no, I don’t.

Fifteen or 20 feet down?

No, I do not deny that.

I don’t mean to trick you. Then, why, Mr. Cherin,

did you, when you testified last November, represent to

the Court that there was one sex act performed in the

whole play, one simulated sex act?

O+O O

105

Testimony of Robert Cherin— Cress Examination

A Well, your definition of simulated sex act and mine

apparently differ, sir.

Q Iwill ask you if I didn’t ask you at that time, “Is

it not true that in many cases, very many natural and un-

natural sex acts are simulated in this?”

You said, “Very many? No, I would not consider [334]

it very many but there are some. I believe in one scene

there is a natural sex act simulated for about two and a

half seconds.”

A I was referring basically, you know, to the scene

called “the bed” which I consider an overt simulated sex

act.

Q That's one I just left out, I believe.

A It probably is, I certainly, you know —

Q (Interposing) But that's the only one you could

think of at that time?

A That's what — that's what I consider an overt simu-

lated sex act.

MR. ALLEY: The question was natural. He's been

asking him about unnatural.

MR. NELSON: I am asking him about both, your

Honor.

Q_ Now, then, Mr. Cherin, turning to the — one other

question, I believe, at that hearing, you also testified that

as many as 28 players appear on stage nude.

A No, I believe the question that was asked, sir, was how

many could and I believe your Honor asked that question

and I said, “There are 28 people in the company and it is

hypothetically possible,” what I just stated, if you are at-

tempting to challenge my credibility, what I just said was

that the most I had ever seen.

13351 QI will ask you if I didn’t ask you at that time,

“Who appears on the stage nude in this play?”

You said, “Players.”

106

Testimony of Robert cherte — Cress Examination; Redirect Examination

I said, “How many players?”

You said, “The maximum is 28. That's the maximum

number of people in the company.”

A That's correct.

Q Then you went on to say, Well, the normal pro-

cedure is that everybody does. However, I must explain

that every performer every night is given the choice, I

mean, there is no contractual obligations so we can’t guar-

antee the number of nude players during that scene.”

A That's correct.

Q But you answered at that time, “Well, the normal

procedure is that everybody does.”

A If that’s what we are saying, I said the most I had

seen, I believe, was 16.

Q Now, you have represented that the ideology in this

play promotes certain social issues here. You listed the

Vietnam War and you said that this play has changed

the American attitude towards Vietnam. This play also de-

picts the sexual —

A Unterposing) I don't believe I testified that it did

change.

e * @

REDIRECT EXAMINATION

BY MR. ALLEY:

® @ @

[342] Q What, generally, are the critical acclaims of

this play?

A Well, generally, as with any show that is a major

hit, “Hair” is the biggest hit in Broadway history. That

is significant on two factors: One is that the number of

people that have seen it; and, two, the amount of per-

107

Testimeny ef Rebert Chorin — Redirect Examination

formances over all, counting of performances that the show

has ever been played. It has played more performances

and been seen by more people than any show in the

American theatre history, I guess, world theatre history be-

cause American shows have the longest running and great-

est audiences.

Cliff Barnes called it the biggest break — Cliff Barnes

is the critic for the New York Times — and called it

the biggest breakthrough, I believe, in the past 25 years

in the American theatre.

Generally, let me say that the notices have been very

good to out-and-out raves. I would be unfair in saying

this, we have been hit a couple or three X number of

times but, generally, any big hit show cannot survive with-

out audience reaction or audience like, you know, in other

words, after you get review there is the word of mouth.

If the audience doesn’t like the show, you die even if

you get raves.

I cannot believe that its success is based on the [343]

nudity or the four letter words since we are now all very

aware that there are more shows than you can count on

both hands in New York with nudity and four letter words

and the defense's interpretation of simulated sex acts.

Q At one time were not four of the songs from “Hair”

in the top ten in popular charts of our nation?

A Yes, that is correct. At one time, “Hair” set a press

— or made history by having four songs in the top ten.

One of the songs from “Hair” was also used as the Peace

Corps, whatever you call it, the Peace Corps song. One

of them was used as the summer festival in Boston in

1970, I believe, as their official song.

Q Did not the album Hair“ win the Grammy award?

A Yes, it did and that, of course, includes the number

“Abie’s Baby,” on it.

108

Testimony of Robert Cherin — Rediroct Ex.) Testimony of Leif Carter — Direct Ex.

Q And this is the same record that we heard?

A Yes, it is.

Q In court?

A Yes, it is identical, it is the same record.

MR. ALLEY: That's all.

TESTIMONY OF LEIF CARTER

DIRECT EXAMINATION

1348] BY MR. ALLEY:

Where do you live?

Signal Mountain.

What is your occupation or profession

I teach Political Science at the University here.

Nashville?

University of Tennessee at Chattanooga.

What is your educational background, sir?

I graduated from law school in 1965. I am finishing

work on a dissertation for the FDT in Political Science

of the University of California at Berkeley.

Q Did you have an occasion to see “Hair”?

A Yes.

2 How long ago, sir?

A That was in August of 1970.

Q Just when you were in school at the University of

California —

& (Interposing) That's correct.

Q you just referred to? All right, sir. What social

issues did the play comment on that you recall, sir?

A Well, very clearly, the play commented on the prob-

2 2 20220

109

Testimony of Leif Carter — Direct Examination

lem of pollution, the problem of racism, the question of

violence in our society, the war in Vietnam. The play

raised issues regarding personal conduct in the area of

sexual behavior and in the area of drug use.

[349] Q Was there any humor in the play, sir?

A Yes, sir, indeed.

Were issues such as sex, racism, et cetera, performed

in a spoofing, satirical manner?

4 Often they were, yes.

Q In the production you saw, was there any nudity?

A Yes, there was.

Q At what point did it occur?

A As I recall, it occurred at the end of the first half

of the play where the — some members of the cast ap-

peared more or less immobile in a rather darkened stage

for, I would guess, no longer than 15 or 30 seconds.

Q Did you enjoy the play?

A I enjoyed most of the play. I suppose I expected

a little more than I found. In some ways I was disap-

pointed in the play. Seemed at times rather disorganized.

At times I just lost the message. I felt part of the play was

superficial, trivial, irrelevant, but on the whole I am glad

I saw it, yes.

Q Did you feel that parts of the play had social re-

deeming value?

A There is no question that the play is attempting to

communicate

This text is long and has been trimmed here. Open the source document for the complete record.

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