Cases & Controversies: The Avatar

"Four letter words in Chaucer's day" - sale of obscenity to minors - The Avatar underground newspaper - Commonwealth v. Faith Gude (1970)

In  1970 the so-called “counter-cultural” movement was at its height, and the law firm of Flym, Zalkind & Silverglate was in the eye of the storm. During the prior year, city and court officials in both Boston (Suffolk County) and Cambridge (Middlesex County) took aim at the Avatar, a new, upstart “alternative” newspaper that had thundered onto the local scene. The Avatar was published by the fledgling Fort Hill Community, a family of folks living together in several buildings located at the top of the Fort Hill section of Boston, the second highest point in the city. At the time the group was led by Mel Lyman, a charismatic and talented harmonica player who had previously played in the famous Jim Kweskin’s Jug Band.

Avatar was a spirited, audacious, and in-your-face newspaper. It belonged squarely in the avant-garde tradition, and was not terribly respectful of established authority. During the course of several issues, it carried news and opinion columns criticizing the powers-that-be, including the Boston and Cambridge municipal councils and police departments, and even some of the district court judges who, in those days, operated like lords of the manor, unquestioned dictators in their own local fiefdoms, in courts where there were neither stenographers nor tape recorders. None of those in power appreciated the jabs directed at them by the writers of the Avatar.

Consequently, the municipal and police officials of Boston and Cambridge, with (as we later found out) the surreptitious (and unlawful) assistance of some of the local district court judges, embarked on a program of arresting and prosecuting those who published and distributed the Avatar. Since it was not then (nor now) a crime to criticize local officials (that pesky First Amendment to the United States Constitution, and the similar, even broader free speech/free press provisions of the Massachusetts state Constitution), they had to find a better hook to justify arrests and prosecutions. And so they charged the Avatar’s street vendors – many of whom were also members of the Fort Hill Community and hence involved in writing and publishing the paper – with sale of “obscene material” because of the paper’s daring use of certain four-letter words.

As these arrests began to escalate in both Boston and Cambridge, the newspaper struck back by engaging in ever more provocative tactics. This war-of-words reached its apex with the publication of a memorable issue of the paper (now a collector’s item) with a centerfold spread consisting of only four words, in large-type print, likely to be most provocative to the Boston and Cambridge city fathers and the constabulary: FUCK, SHIT, CUNT, PISS screamed the centerfold!

 Enraged, the Cambridge Police struck back. Several police detectives arranged for their teen-age sons to purchase copies of this issue of the Avatar on a street corner near Harvard Square in Cambridge, which led to the street vendors’ arrests, not only for sale of obscene material, but for sale of obscenity to minors. The tactic was meant to make successful prosecution easier, because the threshold for what constituted obscenity for adults was pretty high, given that the definition of obscenity was dependent in part upon local community standards, and Cambridge was an exceptionally tolerant community. If the prosecution were for selling to minors, however, obtaining a conviction would be far easier.

There were, all told, over 80 prosecutions of Avatar street vendors, but because of the problems the prosecution encountered in defining what qualified as “obscene,” the defense won all but five cases – the only convictions that survived at the Superior Court level. Predictably, those cases that led to these successful convictions involved the sale of obscenity to minors. The office of District Attorney John J. Droney, a notoriously prudish protector of public morality, handled all five cases, which were subsequently appealed by the defense to the Supreme Judicial Court. (In those days, there was no state intermediate appeals court, so all such appeals went directly to the SJC.) The defendants were Faith Gude, Ethel Nagle, George Peper, John D. Wilton, and Stephen D. Kovaka. (Gude, Peper and Wilton are still members of the Fort Hill Community, which is going strong even today.) Since Faith Gude was the first-named defendant, her name characterizes the case, the reported opinion being Commonwealth vs. Gude, decided on January 19, 1970.

Underscoring the District Attorney’s lack of expertise in free speech matters, the case brief for the Commonwealth was prepared by Special Assistant District Attorney David A. Mills, a state lawyer of considerable talent who was brought in specially to handle the case. He later went on to become a highly respected justice on the Massachusetts Appeals Court, still presiding today.

 The late Reuben Goodman (a public defender of very high regard in the legal profession) and Timothy F. Fidgeon (then, as now, of the law firm of Hemenway & Barnes, whose partner, Roy Hammer, then served on the state Civil Liberties Union Board of Directors) filed a friend-of-the-court brief for the Civil Liberties Union of Massachusetts (now the ACLU of Massachusetts). All briefs were filed. The case was set for oral argument in late 1969.

Oddly, the notice sent out by the Supreme Judicial Court, announcing the date and time for oral argument for the case, stated that the case would be argued at 9:30 in the morning. Both David Mills and I showed up in the courtroom a few minutes before 9:30, only to find out that in fact the case had already been called at 9:00 that morning. With neither side present in the courtroom, the Supreme Judicial Court had deemed oral arguments waived. Neither Mills nor I got our chance to vent.

I always had a suspicion that the Court contrived this avoidance of oral argument, either to avoid the possibility of demonstrations in the courtroom by what was then deemed a group of unruly “hippies,” or the possibility that I would feel compelled to actually state the forbidden words during oral argument in order to take the “sting” out of them. The Court opinion’s discreet references to the profane words in question – without ever repeating the actual words themselves – strongly suggest the latter, but I suppose we’ll never know. It is also possible that the SJC gave us our victory not because of any free speech inclination on the part of the justices, but because the court preferred to avoid the other issue lurking in the case, namely the propriety of the lower court judges’ having gotten together with police and prosecutors to plan a strategy for ridding the City of Cambridge of the unruly newspaper vendors from Fort Hill.

The SJC’s opinion was published January 19, 1970. It was a so-called “rescript” opinion – a brief opinion and order by the Court, not attributed to any one justice, and hence meant to attract as little attention as possible. While the opinion takes a swipe at the publishers and distributors of Avatar (“its authors seem to take pride in the rediscovery of certain four letter words old in Chaucer’s day”), as well as a swipe at what the Court seemed to think was the excessively libertine tenor of the times (“words … widely but covertly employed until recently [emphasis added]), the SJC nonetheless overturned the convictions of the five vendors. “Any lapse,” intoned the justices, without dissent, “was not one of morals but rather one of manners.” In a final knock against the newspaper and its publishers, the opinion added, entirely gratuitously, “this rather sad publication is not obscene.”

And, of course, if the four dirty words were not obscene for children, they obviously could not be viewed as obscene for adults, either. As a consequence, the Gude case made it safe for newspapers to use four-letter words without fear of prosecution in Massachusetts, even if read by the kiddies.

Despite several more attempts, mostly by the Boston Police, to drive the Fort Hill Community out of Boston, eventually the community and the police made their peace, and the community now flourishes in their renovated houses in the now-lovely, now middle-class Fort Hill section of Boston, as well as in the community’s houses in New York City, Martha’s Vineyard, Hollywood, Frankfort (Kansas), and Mexico.