‘Che!’ Eight Judged Guilty of Obscenity


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March 5, 1970, Vol. XV, No. 10

‘Che!’ Eight Judged Guilty of Obscenity
by Jonathan Black

All eight defendants in the five-week trial of the play “Che!” — the five performers, the playwright, and the lighting man — were convicted of obscenity and public lewdness charges in a 2-1 decision handed down last week by Judge Arthur H. Goldberg of Manhattan Criminal Court. The defendants were acquitted of the crimes of consensual sodomy and conspiracy. Five of the convicted were given unconditional discharges; the remaining three — producer Ed Wode, playwright Lennox Raphael, and actor Larry Berkowitz, who played Che — were given 60-day jail terms, or alternatively, fines of up to $1000.

Goldberg’s opinion said “Che!” was filled with “insistent and pervasive sex talk, and vile profanity and utter filth permeated the play…” According to Goldberg, “Che!” constituted a “nadir of smut on stage.”

The trial revolved around the play’s “redeeming social value.” As developed in recent Supreme Court decisions, a piece of writing must be “utterly without redeeming social value” if it is to be judged obscene. During the trial, the defense attempted to focus on the play’s political content and on Raphael’s use of sex as a political metaphor.

Expert witnesses — Clive Barnes, Jules Feiffer, Israel Horovitz, Nat Hentoff, Ross Wetzsteon, Martin Gottfried — testified about the content of the play and liberalized mores in off-off Broadway theatre. David Merrick appeared as the single expert witness for the prosecution. Goldberg, in his opinion, quoted D. H. Lawrence, Dr. Benjamin Spock, and Morris Ernst (the lawyer who won the case for James Joyce’s “Ulysses”) to establish that there are limits to what should be permitted to be seen in public: “It cannot be said,” Golberg concluded, “that standards of public acceptance and morality so sharply different and shocking can be established by a few commercially inspired producers who try to see how far they can go.”

Most significantly, perhaps, Goldberg avoided a head-on “social value” decision by distinguished “Che!” from works of literature. “What may be found in a novel to be redeeming social value may not at all suffice to protect a live performance containing prurient and patently offensive material.” Lawyers for “Che!” believe this distinction may be unconstitutional on its face, and plan to emphasize that fact when and if an appeal is taken. Alan Hirschman, a defense lawyer, called the decision “legal gymnastics, a travesty of justice.”

Identical charges — plus resisting arrest — have been levied against the “Che!” defendants for another performance of the play after their initial arrest, and a court appearance is scheduled for March 9. To date, the government has not dropped the charges.

The decision opens the way for obscenity prosecutions of other plays, a likely first prospect being “Fortune and Men’s Eyes.” Hillard Elkins, producer of “Oh! Calcutta!”, has also apparently expressed some concern for the future of his play.

The dissenting opinion of Judge Morris Schwab stated that “the play is a mediocre one, and it is not entirely clear what its dominant theme is,” but added that “it does present ideas and does strive to present these ideas artistically, and thus falls within the ambit of intellectual effort that the First Amendment was designed to protect.”

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