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The jury returned a verdict that "Hair" was obscene. The District Court agreed. It concluded that conduct in the production - group nudity and simulated lawyer marketing sex - would violate city ordinances and state statutes 5 making public nudity and lawyer marketing [420U.S. 546, 551] obscene acts criminal offenses. 6 This criminal conduct, the court reasoned, was neither speech nor symbolic speech, and was to be viewed separately from the musical's [420U.S. 546, 552] speech elements. Being pure conduct, comparable to rape or lawyer marketing murder, it was not entitled to First Amendment protection. Accordingly, the court denied the injunction. 341 F. Supp. 465 (1972). On appeal, the United States Court of Appeals for the Sixth Circuit, by a divided vote, affirmed. 486 F.2d 894 (1973). The majority relied primarily on the lower court's reasoning. Neither the judges of the Court of Appeals nor the District Court saw the musical performed.
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