Avatar, Boston's iconoclastic underground newsppaer, is back in court. A month ago the eleventh issue of Avatar was declared obscene in Boston Municipal Court. Because Cambridge and Boston newsstands refused to sell Avatar, even before the obscenity decision, Avatar had to sell its twelfth and thirteenth issues--deliberate parodies of "obscenity"--primarily through street vendors. Boston and Cambridge authorities responded to the hippy news-boys with harrassment, arrests and, one day last week, a flying raid on Avatar's Boston office.
Tomorrow, two Avatar street vendors and a writer will be tried in Boston Municipal Court on charges of selling or distributing obscene literature. Next week, in Cambridge's Middlesex District Court three more vendors face the same charges and in addition, those of hawking or peddling a newspaper without a permit.
Although both charges are part of a concerted attack on Avatar, they must be considered separately. An investigation of the Cambridge permit dispute reveals a strange chronology of confused legal procedure by the City. Before Avatar began publishing last summer, City Licensing Commissioner John R. Sennott told its editors that they needed a license to sell newspapers. Avatar applied for and received a license. The next day two Harvard Square vendors were busted by the police. Avatar discovered that the Massachusetts General Laws exempt newspaper distributors from a license. Avatar returned its license, the City refunded the fee. Under a local ordinance, however, newspaper vendors must have a permit. Avatar applied for and received a permit valid until May 1, 1968, with the provision that it could be revoked for "good cause."
Here, the narrative becomes confused by allegations from both sides. Apparently, early in November, Avatar vendors were told by the licensing office that their permit was good for only one issue. Therefore, it had expired. Redundantly, City Manager Joseph A. DeGuglielmo said that he was revoking the permit (which, if it was good only for one issue, had expired early last summer) for "good cause," namely he says, "because they were selling obscene literature." Whether the permit had expired or had been revoked, it appeared that Avatar no longer possessed a permit. The editors applied for a series of new permits. Their request was refused. When the street vendors tried to sell the thirteenth issue, several of them were arrested.
Although the facts may be debated, the issues are clear enough. Cambridge officials have attempted to restrain future issues of Avatar on the basis of a lower court decision which found one past issue obscene. A decision which affects a single issue does not apply to a whole string of future issues, and in applying one decision to several issues the officials have violated Avatar's constitutional rights. The Boston decision applies only to the eleventh issue; the twelfth and thirteenth issues of Avatar have not been declared obscene by any court.
Simply because DeGuglielmo has labelled Avatar obsecene does not mean that a court would do the same. It is not DeGuglielmo's job, as an administrator, to label Avatar one thing or another; that is the court's prerogative, and when he usurps it he is acting unconstitutionally.
By revoking a permit on the basis of a subjective judgment DeGuglielmo has denied Avatar's right to "due process of law," as established in the Fourteenth Amendment. He has also defied that freedom of the press guaranteed by the Bill of Rights. The fault, however, is not wholly DeGuglielmo's. He has only demonstrated the undue policing power given to city officials by an anomalous ordinance which requires newspaper distributors to have a permit. The ordinance, which contradicts both constitutional and Massachusetts law, is illegal.
The connection between Avatar's plight and Mayor Hayes' celebrated war on hippies is unmistakable. On November 13, City Councillors Sullivan and Vellucci frantically denounced Avatar as "the dirtiest stuff that was ever published" and "so filthy that I wouldn't want anyone to read it." Sullivan then introduced an order asking DeGugleielmo to confer with the Chief of Police "with a view to instituting proceedings for criminal prosecution of the owners, writers and distributors of the so-called 'hippie' newspapers now being sold through the City." Of course, the order was not necessary. Working through the permit ordinance--and outside state and Constitutional law--DeGuglielmo had already begun his attack on a newsppaer whose main fault, in the eyes of City Hall, is that it serves as the inflammatory voice of the hippie-radical movement.
As to the other charge--selling or distributing obscene literature--the arguments are more straightforward. In their efforts to have Avatar's twelfth and thirteenth issues declared obscene, City authorities stand on better ground--at least their attack conforms to legal procedure.
The United States Supreme Court, in the course of the last ten years, has set up and elaborated standardds which determine if material is obscene. These standards come down to three main tests:
First, considered as a whole, the material must be patently offensive to community standards. Second, it must appeal to a prurient interest. Finally, it must be utterly without redeeming social value.
Admittedly, the two issues of Avatar contain large heaps of four-letter words; used gratuitously like punctuation marks; stuck coherently together in crude metaphoric diatribes against Cambridge officials; strikingly isolated in a center fold-out.
But the material in Avatar, the newspaper being taken as a whole, consists mainly of indignant satire on issues like Vietnam and military brutality during the Washington March; commentary on radical activities ranging from the Draft Resistance to the San Francisco Mime Troupe; and love-truth (LOVE-TRUTH) chants by hippy philosopher-poets.
Judged by Supreme Court tests these issues of Avatar are not obscene. Whether the lower courts will apply those tests is another question. In the recent Boston trial Judge Elijah Adlow denounced "the casuistry of the higher courts"' in obscuring the definition of obscenity. On the basis of a single article Adlow declared Avatar obscene. To ask him to read the entire issue, he joked lamely, would be "cruel and abusive punishment." The problem of determining contemporary community standards didn't puzzle the Judge at all, simply because he didn't even consider it. "I consider myself a broad-minded fella," he said. "And on the basis of a broad-minded fella's morals, I think Avatar is a filthy, illegal newspaper."
We hope Judge Adlow is an exception. In the forthcoming trials the courts should expose the inexcusable and illegal manipulation of Avatar's permit; they should strike down the dangerous city ordinance which made that manipulation possible. And they should recognize the obvious "socially redeeming values" of Avatar.