The headline was a big, bold one in the “City Page” section of the July 10, 1969 Alabama Journal: “7 State Theaters Hit in Attack on Smut.” Governor Albert Brewer had ordered state and local law enforcement to take swift action against drive-in movie theaters that were showing pornographic films. The article named the seven theaters along with the films being shown at the time of the raid. Hartselle’s Ranch Drive-In was showing Shanty Tramp, while Auto Movie No. 1 in Midfield had Thar She Blows for its patrons. Both the 80 West Drive-In near Selma and the Festival Cinema in Birmingham were putting Starlet up on their screens. The Etowah Arts Theater in Attalla was offering Barbette. The Tide No. 2 in Tuscaloosa featured The Secret Lives of Romeo and Juliet, while The Jet Drive-In in Montgomery’s was screening Inga.

So what was the problem? The theaters were in violation of a law that was passed in 1909 and updated in 1961: Section 374, Title 14 of the Code of Alabama. It read, in part:

” Importation, sale or possession of obscene printed or written matter; penalties. — (1) Every person who, with knowledge of its contents, sends or causes to be sent, or brings or causes to be brought, into this state for sale or commercial distribution, or in this state prepares, sells, exhibits or commercially distributes, or gives away or offers to give away, or has in his possession with intent to sell or commercially distribute, or to give away or offer to give away, any obscene printed or written matter or material, other than mailable matter, or any mailable matter known by such person to have been judicially found to be obscene under this chapter, shall be guilty of a misdemeanor and, upon conviction, shall be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than one year, and may be fined not more than two thousand dollars for each offense, or be both so imprisoned and fined in the discretion of the court.

By the late 1960s, the concept of obscenity was being tested in courts all over the country, and Alabama’s place in the middle of the Bible Belt made it a worthy locale for such tests. Of course, sexually explicit texts and artwork have existed for millennia, but this subject matter had gotten a boost in modern times from technologies like photography and cinema. The rulings in the 1956 Howl case and other cases like it meant that conservatives, neophobes, prudes, and other moralists were losing the culture wars, something they weren’t happy about.

One of those conservatives was Albert Brewer, Alabama’s lieutenant governor who became governor after the death of Lurleen Wallace. The Encyclopedia of Alabama remarks about Brewer that, despite progressive efforts to improve education funding and reduce cronyism in state government, he was still a “life-long Baptist” and a “conservative in certain areas.”  Which could explain his next move a few days later that broadened the crackdown. This time, the manager and assistant manager of the Ritz Theater in Montgomery were arrested for showing Angelique in Black Leather and previews of Love Camp No. 7 and A Young Man’s Wife. Both men posted bond and were out the next day. Once again, the issue of underage patrons came up. Officers from the state police and the vice squad had gone incognito in plain clothes to observe the scene, then to take action. And once again, the copies of the films were confiscated. Since these raids were becoming a habit, this might have been Brewer’s coup de grace in an effort to cast himself as the kind of guy that Alabamians would elect in 1970 to be their governor. (He announced his candidacy around this same time.)

Yet, it didn’t take long for the theater owners and the filmmakers to fight back. By July 18, four of the seven drive-in owners were filing federal lawsuits against the state, Governor Brewer, Public Safety Director Floyd Mann, and others. Joining the theaters as plaintiffs was Entertainment Ventures, Inc., the company that made the some of the films. Among the plaintiffs’ objections were that these films had been shown many times already without incident and without legal action: Starlet had been showing for more than two weeks, and Thar She Blows had been shown more than three hundred times. Another objection was that patrons in attendance during the raids had their names and birthdates taken down by officers. Law enforcement regarded that as making sure that everyone was over age 18, while the theater owners saw it as “harassment.”  The lawsuits sought monetary damages, the return of confiscated films, and an injunction from further harassment.

A few days later, the infamous Judge Frank. M Johnson, Jr. ruled that the four cases should be combined for trial. The July 23, 1969 Montgomery Advertiser explained the plaintiffs’ issues with raids: no hearing had been held in advance to determine whether the films themselves were problematic, and no warrants had been issued for the raids to be undertaken. Also noted in that article was an additional “complaint” against one state trooper made by the owner of Tuscaloosa’s Tide No. 2 drive-in, stating his aggravation that the undercover officer had sat through the film and waited until it was almost over to begin arresting people. 

By the fall of 1969, it was not looking good for state officials. A judge ruled that they had to return the films they’d seized from the theaters in the raids. While the ruling didn’t go into whether the films themselves were or were not obscene, it did say that the Alabama law violated the First and Fourteenth Amendments, with respect to freedom of expression. Those were not the only problems: while the original law delineated age 18 to see or possess such material, a more-recent statute had the age set at 16. 

The combined cases went to trial in late 1969 in the Middle District of Alabama, with a three judge panel presiding: Richard Rives, Frank Johnson, and Virgil Pittman. The first order of business was to make it clear that the judges would not be watching the films:

The Court stated also that, to decide the issues developed under the present state of the law and facts, there is no necessity for it to view the motion picture films or to make any finding as to the obscenity vel non of any of the films.

Ultimately, the court ruled against Brewer and the state’s law enforcement officials. Acknowledging that “a state possesses power to prevent distribution of obscene matter,” the three-judge panel also declared that “a state is not free to adopt whatever procedure it pleases without considering the possible consequences for constitutionally protected speech.” Because the “seizures of the various films in these cases were admittedly made without a search warrant or pursuant to an arrest warrant,” the seizure was unconstitutional. The problematic thing here was that the discretion of whether a film was obscene was left to an individual police officer, rather than to a judge who would issue a warrant.

. . . if two conditions are met the film may be seized prior to an adversary hearing: (1) The judge himself must view the motion picture before issuing the warrant, or in some other manner must make a constitutionally sufficient inquiry into the factual basis for the officer’s conclusions, and (2) existing state law must limit the holding of the film to a brief specified period within which the obscenity vel non of the film must be determined after an adversary hearing or the film must be returned to the exhibitor.

Notwithstanding the hasty overreach, it seems reasonable to say that Brewer saw two opportunities in this crackdown. First, he could use his office to impose his conservative social views on other people, and second, he could stir up support for a 1970 gubernatorial campaign among conservative voters. Lieutenant Governor-turned-Governor Brewer had served only a partial term since 1968, and it was no secret that he wanted to be elected for a full term in 1970. However, Brewer’s goal was too lofty in an Alabama where George Wallace still held sway. He did manage to beat Wallace in the Democratic primary, but “the little fighting judge” took it to mattresses in the runoff. According to the EOA:

The Wallace camp whispered claims ultimately proven true of Republican support for Brewer, spread nasty and untrue rumors about Brewer’s family, and spread doctored photographs of Brewer in friendly poses with controversial black activists. Wallace supporters covered Brewer bumper stickers with their own that read, “I’m for B & B: Brewer and the Blacks.”

Brewer might have pulled a trump card in going after masturbators, but it was no match for Wallace’s tried-and-true tactics as a master race baiter. Not only did Brewer’s efforts fail to win him the governor’s office, they also failed to stop porn films from being shown. The ad shown at right was from 1972, where the Jet drive-in was showing Street of a Thousand Pleasures. But the fight did continue. Montgomery’s Capri Theatre courted controversy in late 1973 and early 1974 when it showed Last Tango in Paris. The debate over whether it was obscene to the point of being illegal was settled once again by a three-judge panel, who ruled in favor of the movie house. Perhaps to rub it in, the Capri showed Emmanuelle in May 1975 and Russ Meyers’ Super-Vixens later that year. Around the same time, the case Ballew v. State of Alabama went all the way to the state’s Supreme Court in 1974. It involved a Mobile bookstore owner who sold a copy of Penelope No. 1 to a man who was over 18 years of age. Yet, the magazine contained pictures of female genitalia, so it was considered “hard-core pornography.” 

The State of Alabama has never been friendly to the porn industry, and this fight didn’t end in the early 1970s either. James H. “Jimmy” Evans expended a good bit of energy combating adult movies and magazines first as Montgomery’s DA in the 1970s and ’80s then as the state’s attorney general in the 1990s. Which leads to two major rhetorical questions: if Alabamians dislike porn so much, how did these bookstores and theaters get their business licenses, then how did they stay in business? If a drive-in was showing Thar She Blows three hundred times, it’s because people were coming to see it. Moreover, people kept patronizing these films, even when criminal charges were a possibility. As with so many things, the public face and the private reality were different. So, politically, the only acceptable and respectable stance was to oppose it— which was how Albert Brewer tried to bolster his chances in a bid for Alabama’s highest public office. Why not attack the peddlers of “smut” . . .  who’s going to defend them?