1975: The Nebraska Supreme Court Watches Porn

The justices wouldn’t have gotten caught if they hadn’t told everybody.

Toward the end of the opinion filed in Stateof Nebraska v. American Theater Corp. (d/b/a Pussy Cat Theater) Judge William Hastings wrote, “This court viewed the film ‘Deep Throat’’ and prepared "to perform its judicial duty."

But read on. There’s a legitimate reason for what you might dismiss with a smirk as a judicial stag party.

Coverage of the original OPD vice squad raid in 1973.

It’s the 40^th anniversary of this landmark case, so here’s the story.

In the 1970s obscenity cases were cropping up all over the country. Omaha had a problem with pornography according to crusading city prosecutor Gary Bucchino.

Some may need historical context at this point. This is before videotape, cable television, and decades before the Internet brought naughty stuff into the privacy of people’s homes or cellphones.

Places like the Pussy Cat in downtown Omaha took over past-their-prime movie theaters, put little into renovations, and played X-rated movies for a clientele with viewing habits best kept private.

Bucchino did everything possible to shutdown theaters showing adult films.

Omaha police staged several raids at the Pussy Cat, and competing adult theaters the Muse and Little Art Theater.  Profit margins were apparently high enough to make small fines and brief jail sentences an acceptable cost of doing business.

All this set the stage for a warm summer Sunday evening late in May 1973. The Omaha Police vice squad busted a showing of the nationally notorious porn sensation “Deep Throat.”

Officials in New York declared the movie obscene earlier in the year, providing free publicity for the Nebraska premier.

The following account of the raid relies on an Omaha World-Herald article crafted by Jim Cleary.  (CLICK HERE to read the full article)

The owner of the Pussy Cat, Ottis Berry, invited about 85 select individuals to a “private showing” of the movie prosecutor Bucchino described as “an hour-long film about a woman whose sex organs are in the wrong places.” They paid $3.50 for the privilege.

Plain-clothed vice squad officers attempted to buy tickets after being tipped off to the event. Their names absent from the invitation list, the officers returned 45 minutes later and through the doors.

A police sergeant “said they saw the film being shown and from previous knowledge believed it to be ‘Deep Throat.’”

Trial Exhibit #1

Reporter Cleary observed audience members “were all well dressed… and mostly young couples” including “several attorneys and businessmen.” As they left the theater “most were grinning.”

The owner, presumably, was not. He was booked on suspicion of distributing obscene materials and resisting arrest.

At trial in municipal court a jury found Berry guilty. A District Court judge rejected his first appeal.

That set the stage for the precedent-setting obscenity case before the state Supreme Court.

The owner of the chain of Pussy Cat movie houses, American Theater Corporation, brought in an attorney from Atlanta, Georgia. (Gilbert Deitch still practices law and has a national reputation as a criminal defense attorney).

Deitch claimed state statutes prohibiting "obscene, lewd, indecent, or lascivious" movies didn’t lay out which specific sexual conduct considered offensive, making the law too vague to enforce. There was also that whole “freedom of speech” thing in the First Amendment of the Constitution.

 The argument did not sway the justices. In fact Nebraska bolstered its obscenity laws the previous year.

The court did watch “Deep Throat” in chambers. However, rather than pen their own description of the plot and visuals in the film the justices borrowed wording from an earlier Federal court ruling.

The court’s published opinion explained that scenes of explicit sex “dominate the film… to such extent that following the opening innocuous few minutes (probably not more than eight) until ‘The End’ flashes on the screen, scenes of sexual acts cascade one upon the other with minor interruptions. All these are accompanied by musical sounds and some dialogue, and enlivened on two occasions with bells ringing, bombs and rockets bursting.”

In the end the Nebraska justices determined “that the film is hard-core pornography and is obscene.” It was the third time the court sustained obscenity convictions against the Pussy Cat. (CLICK HERE to read the full opinion.)

Ottis Berry still got stuck with the $500 fine. There were more charges pending against the owners.

One more thing.

For anyone chuckling over the thought of the justices finding excuses to watch porn, there’s a deeper lesson concerning the importance of weighing evidence in any trial.

Later in 1975, another obscenity case against Berry and the American Theater group made its way through the Federal courts. Every judge agreed the two films at issue time, “Champagne Party” and “The Club,” were obscene under Federal law. However another issue deeply split the judges of the U.S. Eighth Circuit Court of Appeals.

Three of the judges felt a new hearing should be held because the judges sitting in review weren’t permitted to see the films, preventing them from reviewing all of the evidence.

The dissenters wrote passing judgment in these types of cases “obligates us to view obscene and distasteful material.”

“Whether this material is in fact obscene or whether it falls within what should be the jealously guarded protective cloak of the First Amendment we can know only after we look at the material itself. In this case, we will never know, for the court today insulates the jury's verdict from appellate review. More is required of us in the exercise of our power and responsibility of judicial review.”

Making their decision without watching the films they concluded, “stands as an unwieldy and dangerous precedent.”

So that’s why, in 1975, the Nebraska Supreme Court felt watching “Deep Throat” served the cause of justice.