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The Trials of Lenny Bruceby Ronald K. L. Collins and David M. Skover
In order to give value
to his gestures of defiance,
Lenny did need a lot of opposition.
If you are going to break a taboo,
it has to be a taboo.
Harry Kalven Jr.
Prologue: People v. Bruce
He was a man with an unsettling sense of humor. Uncompromising, uncanny, unforgettable, and unapologetic?every outrageous step of the way. He entertained America with disturbing frankness. His words crossed the law and those in it. He became intolerable to people too powerful to ignore. When it was over, not even the First Amendment saved him. He died convicted?a comedian condemned for his words. He was Lenny Bruce.
Censorship, arrests, trials, convictions, and appeals. Police, lawyers, judges, and jurors. The state versus the individual; the old guard versus the avant garde. It?s all there, nonstop for five years, in the drama stamped People v. Bruce. Here is the story of comedy on trial, a story without rival in the annals of American history. It is the story of Lenny Bruce?s struggle for free speech.
Words were his catalyst to fame; to failure, as well. Words were his power, his incomparable gift, his way into the unexplored realms of life and law from which there is seldom safe return. He tore into the planks of conventional morality like a furious buzz-saw: ?My concept? You can?t do anything with anybody?s body to make it dirty to me. Six people, eight people, one person?you can only do one thing to make it dirty: kill it. Hiroshima was dirty.? Daring to make public jokes about private matters, he satirically ridiculed hypocritical religious and legal authorities: ?Respectability means under the covers,? he explained, ?I [am] pulling the covers off.? His words cost him, in dollars, freedom, and sanity. His words?comical, critical, distasteful?put America?s First Amendment principle to the test: Can offensive speech really be free?
The trials of Lenny Bruce are like no other in the history of our law. His free speech story is no dry recitation of lawyerly argument and mundane judicial precedent. From microfilm pages and dust-covered court records emerges a remarkable account of a man who was the magnet for enough prosecutors (twelve or more) to staff an entire state attorney?s office, enough defense lawyers (twenty-three) to fill a small law firm, and more trial and appellate judges (some thirty) than have presided over any single body of First Amendment litigation. And all of this for misdemeanor offenses.
Lenny Bruce?born Leonard Alfred Schneider, a Jewish kid from Mineola, New York?was a comic criminal. He was prosecuted by the likes of Johnnie L. Cochran Jr., and defended by the likes of Harry Kalven Jr., one of the great free-speech scholars of the twentieth century. Thurgood Marshall, before becoming a justice on the Supreme Court, once sat in judgment over Bruce. Nat Hentoff, the liberal columnist, testified on his behalf, just as Ernst van den Haag, the noted conservative commentator, testified against him. Steve Allen, the celebrated TV talk show host, also spoke out for Bruce?from the beginning, throughout his trials, to the end. Judy Peabody, a noted New York socialite, and Phil Spector, the infamous rock-and-roll record producer, stood by Lenny as well?they subsidized him and his work at a time when virtually everyone else had abandoned him.
In his own lifetime, this comic outsider?s speech was castigated by well-meaning conservatives and demeaned by well-meaning liberals. Major newspapers were relatively silent, and never ran editorial protests. Years after his death, feminist Susan Brownmiller lashed out against Lenny Bruce in a campaign to support his New York prosecutor for district attorney of Manhattan.
He had his defenders, too?among them Max Lerner, Woody Allen, Gore Vidal, Norman Podhoretz, Paul Newman, Elizabeth Taylor, James Baldwin, John Updike, and Susan Sontag, to name but a few. They once signed a petition in his defense: ?Whether we regard Bruce as a moral spokesman or simply as an entertainer, we believe he should be allowed to perform free from censorship or harassment.?
And then there is the remarkable story of Justice William Brennan Jr. The obscenity opinions he wrote over four decades ago figured prominently into Lenny Bruce?s struggles for free speech. The evolution of Brennan?s view of the First Amendment was central to the handling of People v. Bruce. It explains how Bruce was prosecuted, defended, once exonerated (on appeal), and how he may have been legally vindicated if only he had lived longer.
Incredibly, the Bruce story is virtually absent from the recorded history of the First Amendment. There is no celebrated Lenny Bruce precedent, because his cases have been virtually forgotten. True, Lenny Bruce has become a cultural icon. But in the world of the law, his life and legal struggles are nothing; it is as if he had never existed. Such legal inattention is folly, however. For in the comic and tragic turns of this life, there is a great legal story to be told. It is a story of the poignant and perverse sides of free speech and the way that speech plays to people and power. It is a true story, but one clouded by myths and complicated by paradoxes.
The Living Dead
The best years of Lenny Bruce?s life came after his death. ?Dirty Lenny? became ?Saint Lenny.? Where the law once had prosecuted him, the culture now hailed him. Lenny was, according to Albert Goldman, the ?greatest comic talent in modern times.? Goldman, Bruce?s ruthless biographer, labeled him ?one of the culture-makers of the modern age.? Indeed. On Broadway, on the big screen, on a Beatles album cover, on records (by Miles Davis, Bob Dylan, Grace Slick, Nico, Tim Hardin, and R.E.M.), in books and documentaries, in reissued recordings, CDs, and posters, in comedy clubs, in college classes, in the Columbia University archives, in the Museum of Television and Radio, and on the Internet, America continues to honor its unabashed hero of free speech. So strong is this sentiment that Saint Lenny could return, if only in celluloid form, to the city that once had made him an outlaw?New York.
On the evening of October 21, 1998, Lenny Bruce (never R.I.P.) ventured back to the West Village for a triumphal performance. What a mind-twist of an evening, the night that Robert Weide?s documentary, Lenny Bruce: Swear to Tell the Truth, opened in Manhattan. To a packed house of die hard fans, Lenny banged out on film some of his most controversial bits??Christ and Moses,? ?Eleanor Roosevelt?s Tits,? and ?Selling Out Your Country? (or ?The Hot-Lead Enema?). Flippantly, he boasted about his notoriety: ?I have been on television?mostly newsreels.? Pausing for a reflective moment, he added: ?The reason I?ve been busted a lot these last couple of years is because of religious point-of-view. That?s what it?s all been about.? Satirical and serious. Time to tell how his comedy came to be on trial. To that end, Weide?s documentary replayed a powerful excerpt from John Magnuson?s 1965 Performance Film:
I figured out after four years why I got arrested so many times. Dig what happens?it?s been a comedy of errors?I do my act at, perhaps, eleven o?clock at night; little do I know that at eleven a.m. the next morning, before the grand jury somewhere, there?s another guy doing my act who?s introduced as Lenny Bruce in substance. ?Here he is: Lenny Bruce, in substance.? A peace officer?does the act. The grand jury watches him work, and they go: ?That stinks!? But I get busted. And the irony is that I have to go to court and defend his act.?
Now the cop is going to do the act before the judge who never heard of Lenny Bruce before?.?I don?t remember the whole act, your honor, but I made these notes?.Ah, let?s see now: ?Catholic,? ?asshole,? ?shit,? ?in the park,? ?tits,? ?n ?shit,? ?n ?Catholics,? ?Jews,? ?n ?shit.? That?s about all I remember. That?s about the general tenor of the act.?
That night of the living dead was his. The outlaw had become hero. So sweet the revenge, now to be canonized in film with the routines and words that once had condemned him in court.
They all sat there, packed into the Film Forum theater, cheering and crying as the documentary brought the ?sick? comedian back from the dead. Jack Sobel, who had managed Lenny in the early years, was there to pay tribute, even though his faithful and skillful work was once repaid by Lenny?s devious 1962 plot to ditch him, with a letter signed ?Love,? no less. Don Friedman, the guy who staged Lenny?s historic 1961 Carnegie Hall Concert, gladly joined in the chorus of praise?forgetting the fact that Lenny once betrayed him by letting someone else ?cut into? his nightclub booking action. It was ninety-four minutes of pure ACLUism?the disturbing agony, the eternal lesson, and the postmortem triumph. When it was over, well-wishers lined up to shake the hand of Martin Garbus, one of many lawyers Lenny had hired and then fired. They were all there, Nat Hentoff (the devoted columnist), Judge Allen G. Schwartz (the dedicated friend and lawyer), and Richard Kuh (the ardent New York obscenity prosecutor)?one big First Amendment family.
How could all of this happen? How could a comic, vilified by the state and abandoned by so many, be resurrected as a free speech hero? There are at least four explanations.
First, commercial exploitation?the repackaging of Lenny?s words and image. Example: his album To Is a Preposition, Come Is a Verb was posthumously renamed The Story of Lenny: What I Was Arrested For; the record company even slipped the disc into a new cover with a station-house mugshot. In time, the Lenny Bruce story became ripe for commercial transformation. As a Los Angeles Times critic observed: ?The ingredients are all there: the hip philosopher, the junky saint, the crusader against hypocrisy, the lynch victim, the martyr to free speech.? Alive, Lenny Bruce was the target of the criminal law; dead, he is the object of intellectual property. Yesterday?s comic prophet became today?s commercial profit.
Second, there is Hollywood romanticism?showbiz readily taps into ?Bruce?s lingering cult appeal,? as the New York Times once billed it. Thus tinsel-town recreated Lenny when it created Lenny, the 1974 movie starring Dustin Hoffman. With the appeal of a docudrama, Lenny Bruce was offered up in heroic black-and-white. In the words of a Newsweek film reviewer: ?[T]one him down, sweeten him up, and turn this hard-driving hipster into a good guy?s truth crusade??that?s how they did it. Alive, Lenny was a reality-check; dead, he is a celluloid fantasy.
Next, there is the generational explanation?the phenomenon of the rebellious ways of ?60s hippies easing into the accepted beliefs of new millennium yuppies. In the ?battle between the hard hats and the peaceniks, the over-thirties and the youth, [the] law-and-order [and] the libertarians,? as Bruce?s New York prosecutor described the intergenerational conflict, the counterculture won out. Those who once grooved to Julian Barry?s psychedelic play, Lenny (1971), were now comfortable with E! TV?s 1998 adoring rendition of Lenny as a cultural maverick. A new generation was no longer offended by his attacks on traditional values. It is a case of embracing the prodigal son, but only after he enters the mainstream. Alive, Lenny was antiestablishment; dead, he is Establishment.
And finally, there is cultural schizophrenia?the inability to tolerate the dissenter during his lifetime versus the compulsion to love him after his death. ?Posthumous sainthood,? a Ramparts article on Bruce declared, ?comes only to those whom the living could not face.? Shortly after Lenny died, the public embraced the guilt-laden message of Simon and Garfunkel?s ?7:00 News? (1966). The song?s words were set to the accompaniment of ?Silent Night?: ?In Los Angeles, Lenny Bruce died of what was believed to be an overdose of narcotics.? Shortly after the peak of his prosecutions, Lenny released his autobiography (1965); it bombed. Yet by 1972, six years after his death, a published volume of his bits sold a half million copies. Alive, Lenny was a clear and present danger; dead, he is socially redeeming value.
No single explanation suffices; the reality of Bruce?s resurrection is colored by all of them. Nonetheless, individually and collectively, these explanations reveal a peculiar and pathetic notion of freedom?that First Amendment liberty requires martyrdom. In other words, society?s free speech rights evolve at the expense of cultural outlaws, as death eventually vindicates their crusades to liberate our language and open our minds. A kind of baptism by burial. Then, and only then, can we accept the Lenny Bruces of the world.
But need life and law be this way? Could People v. Bruce have been decided differently in Lenny?s lifetime?without castrating his comedy? These questions demand that we reconsider the relationship between law and subversive comedy, and between how Lenny?s case was argued and decided and how it might have been argued and decided. Simply, things may well have ended differently?at least as a matter of law.
So much of the myth and hype about Lenny Bruce and his struggles for free speech ignore some basic complexities?for example, how hard he made it for his lawyers to defend him and the courts to acquit him, and how radically different his conception of the judicial system was from the ways it actually operated. This does not mean that it would have been impossible to have saved him, just difficult.
Honey Harlowe, his free-spirited ex-wife, once chastised him: ?You?re defying the court so openly that they have to make an example of you.?
Lenny replied, ?You want to bet who wins??
It was a rigged wager, for Honey understood the larger point: ?Well, that depends on what you call winning.?
He was the confrontational comic. The need to be outspoken, even offensive, was part of Lenny?s genetic makeup. It was an adrenaline rush for him. It was also key to his faith in free speech: ?[T]he First Amendment is?the only strength our country has?.A country can only be strong when it knows all about the bad?the worst, worst things. When it knows about the bad, then it can protect itself.? Implicit in this is a core principle of freedom. If the First Amendment is worth anything, its worth must derive, in important part, from our commitment to protect the cultural outlaw while alive, while offensive, and while extreme to the point of blaspheming every damned thing deemed sacred. Just how that is to be done, if at all, is what makes the People v. Bruce story so relevant.
Lenny Bruce was a comic who cared less about being a dead First Amendment hero than about being a living performer, free of censorship. ?I really don?t want to be the great wounded bird, flying and trying to break through those weights so we can bring free expression to everybody. I?m a guy who has to work.? He sought free speech for the living. What follows, then, is the complex and tragic story of a free speech hero who didn?t want to be one.
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