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Obscene History in the Heights:
The Case of Nico Jacobellis and Les Amants
 
By Sven Dubie
     

The idea of fostering civility in Cleveland Heights has a more checkered history than one might expect. Long before the city launched its current Civility Project, Cleveland Heights briefly served as a focal point in the national debate over attempts to define community standards, particularly with regard to the concept of obscenity. As long-time residents of our community may recall, the controversy involved the former Heights Art Theater, now the Centrum, and the provocative—for its time—film, Les Amants (The Lovers). Before the matter was finally settled, the U.S. Supreme Court took up the case and Justice Potter Stewart provided one of the most frequently quoted judicial aphorisms in American history.

 
Louis Malle
Les Amants (1958) was an award-winning film by the legendary French director Louis Malle. It told the story of Jeanne, a 30-year-old French woman trapped in an unhappy marriage. Encouraged by a friend, Jeanne takes a lover in Paris, but finds no happiness in the affair. Finally, she has a chance encounter with a young intellectual when her car breaks down. Jeanne and her new friend eventually spend a passionate evening together, and the next morning, transformed by the night of lovemaking, Jeanne finds herself unable to face the prospect of returning to her former life. She abandons her family and friends and leaves with her new lover to begin life anew.
 

Although the plot line of the film itself was quite provocative, it was the “explicit” three minute “sex scene” involving Jeanne and her young lover that became the focal point in the controversy. (Indeed, an ad for the film that ran in the Sun Press titillatingly proclaimed, “When all conventions explode…in the most daring love story ever filmed!”) Les Amants was released in the United States in 1959, where it played in dozens of art theaters around the country, generally without incident. In several locations, however, including Boston and Memphis, sanitized versions of the film were shown. Like other states, Ohio had an obscenity law that, among other things, prohibited the possession and exhibition of obscene films. Thus, when the manager of the Heights Art Theater, Nico Jacobellis, decided to show the film in its entirety, he risked running afoul of state law.

 
Louis Malle
Jacobellis was a 37 year-old immigrant from Italy who had once aspired to become a film director. Prior to coming to the United States in 1948, he had pursued cinema studies in Rome. After attending Western Reserve University on a foreign student scholarship, where he supported himself by handling movie publicity for the school, he was hired to manage the Heights Art Theater in 1952. Jacobellis was a devotee of art films. As he noted in an interview, however, he had no interest in deliberately creating controversy and “honestly felt there would be no concern over the film.”  He simply wanted to show films to mature
 

audiences “who take their entertainment seriously and wish to think.”  A further measure of Jacobellis’s commitment to serious art was his establishment of a gallery in the lobby of the Heights Art Theater in which he planned to exhibit a collection of works of contemporary Italian artists that he had recently imported. Ironically, the grand opening of the new gallery was slated to coincide with the Northeast Ohio premier of Les Amants in November 1959, which, as events unfolded, no doubt cast a pall over the gala.

Advance publicity for the film aroused the attention of Cleveland Heights Police Chief, Edward Gaffney, who suspected the film might violate state obscenity laws. As he had done on several occasions in the past, Chief Gaffney ordered several of his deputies to attend the first showing of the film on November 13 to determine if it was obscene. The men concluded that it was and, as the second screening of that evening began, Cleveland Heights police, accompanied by Gaffney, raided the theater, seized the film, and arrested Jacobellis. Within days he was indicted by a Cuyahoga County grand jury and charged with violating state obscenity laws—a felony in Ohio. In the wake of his arrest and indictment, Cleveland police raided Jacobellis’s home after an anonymous tipster told police that the theater manager had other obscene films in his possession. No such materials were ever found.

Local sentiment was divided over the case. One Cleveland Heights resident commended the actions of the police for taking action “to protect us from filth spewing forth from a tarnished screen.” The individual went on to declare that such “foreign film garbage” was “demoralizing and degrading to our community,” and, touching upon one of the salient issues in setting obscenity standards, insisted that simply because “a certain film is being shown in other sections of the state and nation is no excuse for our accepting it in Cleveland Heights.”

By contrast, the Cleveland Civil Liberties Union criticized the police for over-stepping their authority, noting that under state law, only a duly constituted jury, not the police, had the power to declare a motion picture to be obscene. And Sun Press publisher and editor Harry Volk, in the first of several of his “Top of the Hill” columns, conceded that while such films ought to be strictly limited to adults—a restriction already scrupulously enforced by Jacobellis—the question of whether something should be deemed art or obscenity was ageless and, ultimately, best left to individual determination. In June 1960, a trio of judges in the Cuyahoga County Common Pleas Court found Jacobellis guilty of possessing and exhibiting an obscene film and fined him $2,500. Both a county appeals court and the Ohio Supreme Court upheld the conviction, with the state supreme court declaring that the film lacked redeeming social importance according to local community standards—which was the contemporary test for determining whether a work of art could be declared obscene.

For Jacobellis, the case had potentially serious ramifications beyond the question of obscenity. At the time of the controversy, Jacobellis was in the final stages of completing the process of becoming a U.S. citizen. His application was held in abeyance pending final resolution of the case. He had also recently married a young Italian woman from the area and, within a year, a son would be born to the couple. If the conviction stood, his efforts to become a naturalized citizen and the integrity of his family would be imperiled.

Supported by a team of lawyers from New York, Jacobellis doggedly appealed his case to the United States Supreme Court, which issued its ruling in June 1964. By a 6-2 margin, the Court reversed the convictions, although there were divergences of opinion among the justices. Most members of the Court sought to clarify the definition of obscenity, holding that national community standards of decency trumped those of local communities. And since locales that found the film objectionable, such as Cleveland Heights, were in the minority, the tastes of the majority of theater managers nationwide, including Jacobellis, must prevail.

Nevertheless, it was the folksy concurring opinion of Justice Potter Stewart for which this case may best be remembered. Like his peers in the majority, Stewart struggled to precisely identify what it meant for something to be obscene. He acknowledged that laws could prohibit such obscene material as “hard core pornography” but demurred to identify specific types of works which might fall into that category. Nevertheless, Stewart concluded, “I know [pornography] when I see it, and the motion picture involved in this case is not that."

Three nights later, Les Amants resumed its run at the Heights Art Theater. A large ad for the film triumphantly proclaimed: “Thanks to the U.S. Supreme Court you can now see Louis Malle’s The Lovers and, in accordance with your constitutional rights, enjoy your freedom of opinion and expression!” Ironically, within a decade the Jacobellis ruling was overturned. Reflecting the nascent backlash against the perceived cultural excesses of the 1960s, the Court ruled that the idea of nationwide community standards was untenable. As a result, the Court reverted to a more restrictive position, declaring that any measure of community standards must reflect local sentiments.

Today, the explicit material in Les Amants would not create much of a stir. Indeed, it might easily be passed off as a “wardrobe malfunction” or a rather sedate music video. But in 1960s America, standards were very much in flux, and one person’s art house film was another’s pornography. As the times have changed, so have the grounds upon which struggles over civility are waged. Yet the fact that people continue to care about such issues reflects the vitality of, and passion for, the community in which we make our homes.

 
1 Miller v. California (1973)
 
 
 

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