If you thought it was the Miller case you would have been wrong…

From www.cleveland.com- Each year, law professor Jonathan Entin [pictured] leads a tour of legal landmarks in Greater Cleveland, including the old Heights Art Theatre at the corner of Euclid Heights Boulevard and Coventry Road.

He doesn’t take the students inside the building, with its gray-brick facade and ancient marquee. The interior has changed too much to have any meaning. It’s now home to Johnny Malloy’s Sports Pub and an upstairs hookah bar.

So Entin and his students just roll by in a 15-passenger van, talking about the events of Nov. 13, 1959, when theater manager Nico Jacobellis showed a French film called “The Lovers” and landed himself in jail — and, eventually, before the U.S. Supreme Court.

“A lot of them are just amazed because they don’t really know the case,” said Entin, who teaches at Case Western Reserve University.
sidewalks.

The obscenity case, Jacobellis v. Ohio, resulted in the famous quote by Justice Potter Stewart as he struggled to define hard-core pornography in his concurring opinion.

“I know it when I see it,” he wrote, “and the motion picture involved in this case is not that.”

The case also highlighted an era when the courts and society struggled to define what was obscene. That debate never really ended, with occasional cultural skirmishes breaking out over art exhibits and movies.

The forum for obscenity expanded exponentially with the advent of the Internet. But the desire to investigate and prosecute such cases remains a relatively low priority for law enforcement unless they involve minors. But such cases still happen. Last year, former Cuyahoga County Recorder Patrick O’Malley was sent to prison after investigators found images of bestiality on his personal computer.

The Supreme Court’s ruling in the Jacobellis case also broadened the notion of artistic freedom for filmmakers, musicians and other artists.

The Cleveland International Film Festival marked the 50th anniversary of the movie’s Cleveland Heights debut by including it among the offerings last month. It played to a nearly sold-out theater.

“The Lovers” is tame by today’s standards, but in 1959 the movie was scandalous. Directed by Frenchman Louis Malle, it was one of a growing number of imported films that challenged America’s conservative sensibilities. Previously, Brigitte Bardot had titillated Americans with a salacious table-top tango in Roger Vadim’s “And God Created Woman.”

What pushed “The Lovers” out of bounds to some was the depiction of female star Jeanne Moreau having an orgasm. The fact that her character in the movie leaves her husband and child to run off with her lover made it even more scandalous.

“You could almost show that film in prime time today without cutting it,” said Jeff Gamso, legal director for the American Civil Liberties Union of Ohio, who first saw the film in the 1960s and again in March.

But America in the late 1950s was still emerging from its prudish cocoon. The sexual revolution wouldn’t arrive for several more years and not everyone was heading that way at the same pace.

Jacobellis, a 37-year-old Italian immigrant, knew “The Lovers” would cause a stir. The Cleveland Heights police kept tabs on local movie houses (not to mention suspected communist hangouts) with officers viewing questionable films and reporting back.

The day before “The Lovers” was to debut at the Heights Art Theatre, Detective Earl Gordon called Jacobellis to say he heard the movie might be obscene. He asked for an advance screening but was told a projectionist could not be lined up in time.

So Gordon, accompanied by his wife, attended the movie’s first night, telling Chief Edward Gaffney the next day he thought the film obscene. That morning’s Plain Dealer included a scathing review from critic W. Ward Marsh.

“Without its shockingly nasty climax, ‘The Lovers’ would be shunned by all moviegoers,” Marsh wrote. “With it, the prurient-minded will have a ball.”

That night Cuyahoga County Prosecutor John T. Corrigan and Cleveland Heights Law Director King Wilmot watched the first showing of the movie along with Gordon. Gordon and two other officers then halted the evening’s second show, already in progress.

The police confiscated the film, which came in five canisters, and took Jacobellis to the station, where he was briefly jailed. His attorney, Bennett Kleinman, arrived and Jacobellis was released on a $100 bond.

Old-timers may still remember the headline in the next day’s paper. “Police Seize Heights Theater Film,” with a photo of customers getting refunds from the kiosk out front.

Then the debate began, with impassioned arguments on both sides. Citizens for Decent Literature applauded the prosecution for holding firm on smut. Cleveland Citizens for Freedom of the Mind viewed confiscation of the film as unacceptable censorship.

A Cuyahoga County jury convicted Jacobellis of peddling obscenity and he was fined $2,500. An appeals court upheld the ruling, as did the Ohio Supreme Court. The case eventually landed on the docket of the highest court in the land.

In 1964, the U.S. Supreme Court overturned Jacobellis’ conviction. The court suggested that obscenity could not be based on a community standard as it was in Jacobellis, requiring instead a national standard that could be applied the same in San Francisco as it was in Cleveland.

The court took the opposite position in 1973 with Miller v. California, ruling a community standard could suffice, and that the material in question had to have no serious political, scientific or cultural value to be considered obscene.

It’s still the law of the land.

The indefinite nature of the ruling, as opposed to a specific law prohibiting drinking alcohol or using drugs, means what can play in one town might not be acceptable in another. Obscenity, in other words, is a moving target. It’s up to a community, or more specifically a jury, to decide what crosses the line.

The high court’s decision gave “The Lovers” the added appeal of forbidden fruit. Shortly after the Supreme Court ruling, a full-page advertisement in The Plain Dealer declared, “At Last You Can See The Most Controversial Motion Picture!”

Jacobellis stayed in the movie business and went on to a noteworthy career. He was named showman of the year by the Variety Club of Northern Ohio in 1963 and later handled advertising and publicity for 20th Century Fox. He died in White Plains, N.Y., on Nov. 12, 2000, exactly 41 years to the day he first showed “The Lovers.”

The legacy of his legal odyssey is not the law as it reads today, but how it contributed to society’s idea of artistic freedom, Gamso said.

“It allowed film to develop in new and broader ways, to challenge social constructs and to push boundaries in all sorts of ways,” he said.

But sex in the movies doesn’t generate much debate these days. An industry rating system provides warning to the viewing public, and porn shops are pretty much free to sell smutty DVDs.

The more pressing concern to police and prosecutors is obscene material that can be downloaded on a computer and made accessible to minors, or e-mailed from one cell phone to another.

The convergence of tolerance and technology must have some people wishing it was just a lewd French film and a single moviehouse they had to worry about.