Thy Neighbor's Wife (54 page)

Fleishman was clearly riled by Tuttle’s closing remarks, and as soon as he had settled himself at the podium he began to aggressively refute the contentions of the government prosecutor.

“Chief Justice,” Fleishman began, “…the brochure simply is
not
obscene! It is not obscene under national standards. It is not obscene under local standards…. The prosecution says it is obscene under
any
standards. I would remind the Court that a film,
Deep Throat
, which was thought to be obscene by any standards, is being found
not
obscene continuously throughout the country by local juries.”

As to the government’s indictment against Hamling, Fleishman continued, it is capriciously conceived, vaguely defined, and legally defective. The indictment is characterized by such Comstockian words as “lewd,” “lascivious,” “indecent,” “filthy,” and “vile,” and yet it fails to substantiate the charge that Hamling had personally violated, either willfully or inadvertently, a crime against the public morality. “Look at the indictment—is the specificity there?” he demanded. “No,” he answered, “it is
not….
What
was
the legal definition of obscenity at the time the indictment came down? Justice White suggests that ‘utterly without redeeming social value’ was not part of it. For the present purposes, I don’t care whether it was or was not part of the definition. I don’t care whether it was a local standard or a national standard. I don’t care whether you measure prurient interest by national or local standards or
no
standards. I
do
say that where you have a statute which is so up in the air as this one is, absolutely the irreducible minimum is that we are entitled to have in our
indictment
what the charge is, and not have these vague words ‘lewd,’ ‘lascivious,’ and the like, and say that
everybody
knows what that is, of course we have
always
known what that is.

“Now,” he continued, “we do have other points, and I would like to emphasize, if I may, some of the vices that came from the infirmity of the indictment. For example, we were charged, in statutory language only, in response to a bill of particulars, that the material was offensive because it appealed to the prurient in
terest of the average person. And yet [the San Diego jury]…was told that they could convict if it appealed to a prurient interest of the average person
or
a clearly defined sexually deviant group. When we complained to the Court of Appeals, the Court of Appeals said we were right, that it should have been solely measured by the average person, but it was harmless error….

“Pandering, also,” Fleishman went on, “there isn’t a word of pandering in the indictment, nothing in the bill of particulars—and
yet
the jury was instructed that they could convict on a pandering doctrine without the slightest evidence of any pandering. There isn’t a case that I know of which holds that an advertisement can pander itself….”

“What was the situation in the
Ginzburg
case, Mr. Fleishman?” asked Chief Justice Burger. “Was there anything?”

“No,” said Fleishman, “in
Ginzburg
, your honor, as I read
Ginzburg
, the Court held that the books involved were rendered obscene because the brochure advertising them in effect said that they were obscene and therefore that could be taken into account. But
Ginzburg
did not at
all
suggest that the advertisement could pander itself. It’s logically inconsistent, because in this case if the brochure was mailed, either it’s obscene or it’s not obscene. It doesn’t in any way lend itself to a pandering instruction….”

“Mr. Fleishman, does the record show how the mailing list of 55,000 people was compiled?” It was the soft Tidewater-Richmond inflection of Justice Lewis Powell, speaking for the first time today; and as Fleishman shifted on his crutches so that he could directly face his interrogator seated to his extreme left, this jurist who might represent the “swing vote” in this case, the lawyer responded in a conciliatory manner: “It does not, your honor. What we do have is, for sure, that twelve people were offended. That is all we know. That fifty-five/fifty-eight thousand [brochures] were mailed, and that twelve people were offended….”

“Does the record show whether any of the fifty-five/fifty-eight thousand people had requested the brochure?”

“The record is silent on that point, your honor.”

“Does the record show,” Powell went on, “whether it was received by any minors?”

“The record
does
show that it was
not
received by any minors at all,” Fleishman replied, pleased with the opportunity to impart this fact to the justices of the Supreme Court; and he also took the opportunity to add that, after Hamling’s office had learned of the twelve complaints to the Post Office, all twelve names were immediately removed from the distributor’s mailing list, guaranteeing that the complainants would be spared the receipt of more sexually oriented mail in the future.

“I suppose,” Justice Powell continued softly, “there was no way to tell the number of children in the fifty-five thousand homes into which this brochure was mailed?”

“No,” Fleishman admitted, “but I would say this, since we are supposing, your honor: I know that the list was purportedly a list of persons who had previously indicated their desire to receive sexually explicit material. Those are the only mailing lists that are
worth
anything, because one tries to mail to those persons who are interested…. If you want to sell cat food, you want to mail material to people who have cats.”

Perceiving what might have been the mildest of smiles on Justice Powell’s sober countenance, Fleishman continued: “So the truth of the matter is, the brochure was mailed, as fully as one could, to those adults who had indicated that they did want it. Now that’s not in the record, and I don’t want to mislead the Court, but I think that is the true answer as to who was in fact the recipients of the ad. We have, as I say, twelve people who are offended. But,” he concluded, “there are twelve people who are offended by receiving many political brochures, too, your honor.”

Justice Powell, who seemed satisfied with Fleishman’s answer, had no further questions. Since the allotted time of his rebuttal had expired, Fleishman thanked the Court and heard Chief Justice Burger announce: “The case is submitted.” As the marshal banged the gavel, the nine justices stood, turned, and quickly disappeared through the red velvet draperies. The spectators began to leave their pews and move slowly through the crowded
aisles toward the rear exits; but Hamling edged his way forward toward the counselors’ table to shake hands with Fleishman, to congratulate him on his handling of the case, and to express optimism about the outcome. Fleishman smiled, but warned him against overconfidence. The vote, to be announced in ten weeks, would be close, Fleishman predicted; it would probably be a five-to-four decision, with the private musing and vicissitudes of Justice Powell perhaps determining the conclusion of the entire case.

On June 24, 1974, Stanley Fleishman received from Washington the disturbing news: In a five-to-four vote, Hamling had lost. Hamling had been supported by the Court’s liberal foursome—Douglas and Marshall, Brennan and Stewart—but Justice Powell had remained allied with the other Nixon appointees, and Justice White, in forming the majority. The prevailing opinion, written by Justice Rehnquist, overruled every objection that Fleishman had raised in Hamling’s behalf. Rehnquist declared that the government’s indictment had been “sufficiently definite” in clarifying the charges against Hamling; that such words as “lewd,” “lascivious,” “indecent,” etc., in the Comstock postal statute were not “too vague” to justify Hamling’s conviction; and that it had
not
been “constitutionally improper” of the California judge to employ national standards, and to disallow local evidence, at Hamling’s trial in San Diego. While Hamling might have sincerely believed that his brochure was not legally obscene, Rehnquist said in effect that that was no defense; and Rehnquist supported his position by citing the 1896 case of
Rosen
v.
United States
, in which a New York publisher named Lew Rosen, after claiming that he did not know that the ladies photographed in his periodical were obscenely posed, was told by the Supreme Court that his knowledge of obscenity was irrelevant: His conviction was affirmed because he was aware of the content of the material he had mailed.

While the film
Carnal Knowledge
was vindicated by the Court in a companion opinion that was also authored by Rehnquist—
“there are occasional scenes of nudity,” Rehnquist wrote, “but nudity alone is not enough to make material legally obscene”—the Hamling brochure was, in Rehnquist’s words, “a form of hard-core pornography well within the types of permissibly proscribed depictions described in
Miller
.” And so Hamling’s conviction was final; a stay in prison was inevitable; the $87,000 fine was payable.

In newspapers throughout the land, Hamling received little sympathy on the editorial pages, and only minimal coverage in the news columns—except for the CDL’s
National Decency Reporter
, where there was a front-page photograph of Justice Rehnquist with an adulating article about his ruling, under a headline that read: “All Systems ‘Go’ for Obscenity Prosecutions.”

At Fleishman’s request, several lawyers, writers, publishers, and editors joined Hamling’s family in writing mercy-pleading letters to the San Diego judge who now controlled Hamling’s immediate fate; but the only concession that Fleishman could achieve after the payment of the fine was a reduction of the prison term to less than a year in Terminal Island on the understanding that Hamling would sever all business connections with erotic publishing, and thereafter cease to write, to edit, or to distribute any material even mildly related to sex. Hamling also understood that, at the risk of violating his five-year probationary period, he would be wise to refrain from writing magazine articles or books about the vagaries of sex laws, or lamentations about his own predicament and punishment—meaning that his written views about his case would be restricted to the personal letters he mailed to his friends or attorney. In one letter to Fleishman, he wrote, as if he could yet barely believe it, “I am a criminal…. It has been determined. One vote in nine has determined the brochure for the book illegal and my sentence thus affirmed. Irrelevant thought, traumatic in its perplexity: Justice Black was sitting at the time the brochure was mailed…. The one vote would have been different. I would not be a criminal…. But Justice Black is not now sitting, [having been replaced by Justice Powell], therefore I am a criminal, consigned to
the limbo of convict life and brand. How does one adjust to this? A question of personal taste and legal ambiguity that swings the scales of justice 5 to 4 either way…as capricious as the changing wind at sunset.”

I
N HIS MORE
visionary moments, sitting on his round bed in his private airplane, a sleek black DC-9 jet that regularly transported him and several playmates between his mansion in Chicago and his mansion in Los Angeles, Hugh Hefner saw himself as the embodiment of the masculine dream, the creator of a corporate utopia, the focal point of a big-budget home movie that continuously enlarged upon its narcissistic theme month after month in his mind—a film of unfolding romance and drama in which he was simultaneously the producer, the director, the writer, the casting agent, the set designer, and the matinee idol and lover of each desirable new starlet who appeared on cue to enhance, but never upstage, his preferred position on the edge of satiation.

Ever since his adolescent days as an usher at the Rockne Theater in Chicago, Hefner had been enchanted with movies, had accepted uncritically their most improbable plots, had languished in their emotions and reveled in their adventures; and as he stood watching in the darkened theater, he often wished that the lights would never turn on, that the story on the screen would continue indefinitely and delay forever his return to the mundane, tidy home of his German accountant father and his prim Swedish mother. It was his mother who had first perceived his escapist tendencies and had learned from an examining psychologist that
her son was a kind of genius with afflictions of immaturity, an appraisal that had worried her but would never embarrass Hugh Hefner. On the contrary, he coveted his youthful illusions, intensifying them to a passion; and now in the mid-1970s, relaxing in his plane or luxuriating in his mansions, he could look back on the many happy years in which he had escaped the boredom that other people rationalized as “maturity,” and had expanded his fantasies into a multimillion-dollar empire.

The initial source of his fortune had been, of course,
Playboy
magazine, which he began in 1953 with $600 that he borrowed against his wedding furniture; and the success of his magazine marked the end of his marriage and the beginning of a continuous courtship with nude photographs and the models who had posed for them. The women in
Playboy
were Hefner’s women, and after their photo sessions he complimented them, bought them expensive gifts, and took many of them to bed. Even after they had stopped modeling for
Playboy
, and had settled down with other men to raise families of their own, Hefner still considered them
his
women, and in the bound volumes of his magazine he would always possess them.

In 1960 he had opened in Chicago his first Playboy Club, introducing into his life numerous Bunnies from around the nation, some of whom came to live in the dormitories of his forty-eight-room mansion near the lake on Chicago’s exclusive Gold Coast. When he first saw the mansion it reminded him of some of the great houses he had seen in mystery movies, the sort that had hidden tunnels and secret doors; and after he had bought the property and discovered that such features were lacking, he had his own private passageways built, together with walls and bookcases that moved by the press of a button. He also added within the mansion’s grand interior a movie studio and a popcorn machine, a bowling alley and steam room, and, though he did not swim, he installed in the basement a full-sized swimming pool. The pool was partly encased in glass, and it often presented in Hefner’s underwater bar a view of Bunnies swimming in the nude.

Since Hefner’s large kitchen staff and many dark-suited butlers worked in shifts around the clock, it was possible for him and his house guests to order breakfast or dinner at any time of the day or night; and since Hefner preferred that all the windows of the house be heavily shaded, draped, and soundproofed, he was able to dwell in baronial seclusion for many months without ever becoming aware of the weather outside, the activity in the street, the season of the year, or the time of day. Like the fated Jay Gatsby, the hero of Hefner’s favorite novelist, Hefner often gave large parties for hundreds of people; and, like Gatsby, he occasionally failed to appear, choosing to remain instead in his private suite beyond the oaken steps to work on the layout of a forthcoming
Playboy
, or to enjoy the company of a smaller group of intimates, or to watch on the movie screen opposite his bed one of the several hundred films that he stored in his cinema library.

His suite, which he designed so that he would rarely have to leave it, offered every imaginable comfort and convenience: He had visual and sound equipment that allowed him to communicate from his bed to his executives in the Playboy building blocks away; and by pressing buttons, he could spin his bed 360 degrees in either direction, could make it shake, vibrate, or suddenly stop in front of a fireplace, or a brown couch, or television sets, or a low flat curved headboard that served as a desk and dining table and contained a stereo, telephones, and a refrigerator in which was stocked champagne and—his favorite drink—Pepsi-Cola, of which he consumed more than a dozen bottles daily. Also in his mirrored room was a television camera focused on his bed, permitting him to film and preserve the imagery of his joyful moments with a lady lover—or, as was sometimes the case, with three or four lovers at the same time. One night a newly arrived resident of the mansion opened the door to Hefner’s suite and discovered him lying naked in the center of the bed surrounded by a half-dozen nude
Playboy
models and Bunnies, each of whom was gently massaging him with oil, while he watched attentively, seeming to be getting as much pleasure from what he was seeing as from what he was feeling: It was as if the pictures
of his magazine had suddenly come to life and were anointing him in an erotic ritual.

After buying his jet for nearly $6 million, Hefner had its cabin redesigned, reproducing as much as possible the familiar comforts of his mansion. Reducing the plane’s searing capacity from no passengers to barely 35, he installed plush chairs that could be converted into beds; he added tables for business conferences and his favorite games of Monopoly and backgammon; he included two 16 mm movie projectors, nine television monitors, three sky-phones with extensions, an elaborate eight-track stereo system, and also reserved enough floor space in the front of the cabin for dancing. Playboy stewardesses, wearing tight-fitting black uniforms trimmed with white bunny emblems, matching the exterior colors of the plane, were prepared to serve eight-course dinners with enough silver, crystal, and china for thirty-six people. In the rear of the plane, in Hefner’s suite, was a round bed, a step-down shower, and a desk with a Dictaphone, tape recorder, and a light-box on which he could examine color transparencies for future issues of the magazine.

Although the plane’s extra fuel tanks enabled Hefner to take occasional trips overseas, his frequent flights from Chicago mostly took him back and forth to Los Angeles, where his company in the late 1960s had begun investing heavily in television and film production, and where in 1968 Hefner became enchanted with an eighteen-year-old UCLA co-ed that he had recently met named Barbara Klein. He had been introduced to her on the set of the “Playboy After Dark” television variety show, where he was the host and she had been hired as an extra model by a Hefner associate who had spotted her one night in a Beverly Hills discotheque and knew immediately that her looks would appeal to Hefner. Barbara Klein was the quintessential girl-next-door, a green-eyed brunet with perfect complexion, a cute little upturned nose, and a graceful, budding body unselfconsciously enhanced by clothes that were casual but well tailored. Before enrolling as a premed student at UCLA, Barbara Klein had been a high school cheerleader and a Miss Teenage America contest
ant from her hometown of Sacramento; and after arriving in Los Angeles, she occasionally worked after class as a television model, doing commercials for Certs and posing as a mermaid for Groom & Clean.

When Hefner first saw her, he was amazed at how much she resembled his estranged wife Mildred—not the contemporary Mildred but the virginal bright-eyed brunet with bangs and bobby socks that he had fallen in love with during the summer of 1944 after graduation from Steinmetz High School. Mildred Williams had been the original girl-next-door, the cynosure of his purest dreams and desires, and, also, the source of his greatest pain when she admitted—after they had become engaged, and she was teaching school in a small Illinois town—that she was having an affair with a man on the faculty. Although this had shattered Hefner, they proceeded with their scheduled wedding in June 1949, a decision that within a few years, and after the birth of two children, they both recognized as a mistake. Following their divorce, Mildred would marry an attorney who had helped with her settlement; while Hefner’s personal involvements would thereafter remain in the realm of romantic courtships with
Playboy
inamoratas.

But after he had gone out on a number of occasions with Barbara Klein, Hefner suddenly seemed interested in a more committed relationship. He was now in his early forties, and, though she was not much older than his daughter Christie (who was living in Chicago with her mother and stepfather), Barbara was different from the dozens of other young women he had known since his divorce: She was more intellectually curious, more vivacious and socially poised; as the product of a prominent Jewish family in Sacramento, and the daughter of a physician, she was less awed than most of Hefner’s girl friends by his wealth or position. When they went out on dates, she insisted that he not pick her up at her apartment in his chauffeured limousine, preferring to drive her own car and meet him at the restaurant or party they were attending. She also avoided ever being alone with him in a room, having no intention of losing her virginity to a man of his
reputation and advanced years. Early in their acquaintanceship, she explained, “You’re a nice person, but I’ve never dated anyone over twenty-four” to which he replied: “That’s okay, neither have I.”

During his first few months of seeing her whenever he was in Los Angeles, Hefner remained reasonably proper and patient; and when she finally agreed to fly with him and his friends for overnight visits to Las Vegas, and to go skiing in Aspen, where his brother Keith had a large house, arrangements were made for Barbara Klein to have a private bedroom. Their traveling together, however, was soon publicized in the Hollywood press, which offended her parents in Sacramento and revived against Hefner familiar allegations that he dated nymphets because he feared older, more challenging women. To such assumptions Hefner answered that older women were not necessarily more challenging than younger ones, and in any case he was not seeking challenges in his love life, “I’m not looking for a female Hugh Hefner,” he told one reporter, adding: “A romantic relationship for me is an escape from the challenges and problems I face in my work. It’s a psychological and emotional island I slip away to.”

As Barbara Klein spent more time in his company, and came to know his many friends in publishing and show business, she became increasingly comfortable in his world and responsive to Hefner personally. He was quick-witted but never derisive; he seemed unaffected by his millions, and possessed a sense of boyish adventure that made her forget the difference in their ages. By 1969, during a visit to his mansion in Chicago, Barbara Klein was not only ready but eager to consummate their relationship in the big round bed; and she also agreed while in Chicago to pose for the cover of
Playboy
, the first of many pictorial appearances that would bring her national attention under the name “Barbi Benton.” Hefner was enthralled with Barbi Benton, dazzled by her wholesome appeal, and, as she reacted with girlish delight to beautiful things and places that Hefner had taken for granted, she motivated within him a drive to explore
still further the limitless possibilities of his life. During a weekend in Acapulco, despite his inability to swim, Hefner followed her and his friends in taking a turn on a flying water-kite pulled by a motorboat, and for many perilous moments the irreplaceable head of Playboy Enterprises was seen hanging by his arms high over Acapulco Bay.

Because of Barbi Benton, Hefner spent more time than ever before in Los Angeles; and in 1970 he purchased for $1.5 million a Gothic-Tudor chateau on a lush estate near Sunset Boulevard in which Barbi Benton would be the chatelaine. Together they discussed how they would redecorate the thirty-room, ivy-covered manor that would become Playboy Mansion West, and for many months architects and workmen reshaped the surrounding five and a half acres into gently rolling hills and lawns, built a lake and waterfall behind the main house, and also created a stone grotto that sheltered a series of warm Jacuzzi baths in which guests could bathe in the nude. Music was piped into the steaming grotto, through the surrounding forest of redwoods and pines, across the sprawling green lawns on which dozens of Hefner’s newly acquired animals were allowed to roam—llamas and squirrel monkeys, raccoons and rabbits, and even peacocks. On the ponds were ducks and geese; in the aviary were condors, macaws, and flamingos. On other parts of the property there was a greenhouse filled with rare flowers and plants; guest cottages furnished with antiques; a game house in which was a pool table, pinball and Pong machines, and small private bedrooms with mirrored ceilings. There was also built within a wide clearing of trees a step-down tennis court that was overlooked by an outdoor dining area where lunch or dinner could be served, and where black-tied butlers would provide on trays to each arriving racket-carrying couple
two
unopened cans of tennis balls.

Visible from almost every part of the estate, despite the high hedges and trees, was the mansion, a castlelike structure with towering chimneys and turrets that was modeled after a fifteenth-century English manor. In front of the mansion’s main entrance was a white marble fountain with cherubs and lions’
heads spouting water; and after passing through an arched stone portal and a heavy oak door, visitors entered a grand hallway with marble floors and a high-beamed ceiling from which was suspended an enormous golden chandelier with candles nearly the size of baseball bats. To the right was a baronial dining room with a long polished wood table surrounded by twelve blue-velvet-covered chairs; to the left was a large living room with a concert piano, leather sofas, and many chairs that would be occupied by guests on those evenings when Hefner would convert the room into a movie studio. Rising from the entrance hall was a wooden twin-balustrade Gothic staircase that led to several private suites, including the master bedroom that would be occupied by Barbi Benton and, when he was in town, by Hugh Hefner.