Comedy & Liberty Lenny Bruce

8/15/2019 Comedy & Liberty Lenny Bruce

1/27

Ronald K L ollinsComedy and Liberty TheLife and Legacy of LennyBruce

The people who m ust never have power are the hum orless.— Christopher H itchens

LAUGHTER IS VITAL TO THE HUMAN CONDITION IF ONLY BECAUSE

the alternative would be horrific. To laugh is to live—it makes bruteexistence tolerab le. It is the p ath that po ints away fiom tragedy. As theanc ient Greeks knew if tragedy affirmed the m ean ing of our existencethen comedy kómóidía) affirmed the possibility of humankind risingabove the m isery of our collective cond ition. Like tragedy com edyparticipates in the Dionysian dance bu t it does so in ways that deridethe very gods wh o would harm us. In tha t regard comedy not only

helps us to cope with the absurdity of our situation—it also helps usexpose the hypocrisy of the righteous which is essential to any sensibleso c ie ty ... and som etimes makes for a good joke as well.

Comedy can be em dite or entertaining or both . And yes it canbe m de an d ridiculous jus t as life itself can be. In its finest m om en tscomedy is the e nem y of fanaticism the foe of t3^anny the adversary ofstrident know-nothings the nemesis of the pom pous and the friend of

skepticism in an over-confident world. Then again som etimes com edyis no mo re th an the source of a full belly laugh


2/27

of Calcutta. Sometimes comedy is divine, other times farcical, sometimes operatic, other times poetic, and still other times shamelessl

vulgar. As it moves along the co ntin uu m from sauciness and scandal tsacrilege and sedition, comedy mocks everything in its sardonic pathOf course, sometimes the laugh is on us as whe n we ch uckle over ouovwi foibles when pointed out to us by the man on stage. And thethere are satire and irony as well as parody, burlesque, exaggerationand double en tend re. Together, they have been employed over the ageto punch out the likes of the mighty or to m ake svdft shrift of the iimpe rial imp eratives.

It is a given: comedy takes liberties. So, too, it depends onliberty to survive. Absent that symbiotic relationship, comedy woulcollapse into tragedy. W hen A ristophane s poked fun at the warm ongers of his times in his lysistrata (411 BC), he did more than providgrist for a rib-tickling romp. He was, among other things, sugges

ing that no real Athenian men could end the ceaseless mayhem ansquander of young lives. That sort of thing stands to offend thoswho wage war, those who govern the governed. In a similar veinthe re is his play titled The louds (423 BC), in w hich A ristophane s ridcules Socrates. No w on der t ha t in his famous w ork . The Republic (circ380 BC), Plato ban ishe d poets of A ristop han es' ilk (Book III). For Plato,it w asn 't simply the offense p rom ulgated by the poets that prom pte

his philosophical concern. What was also problematic was the lacof a firm link to truth—that is, that comic poetry took liberties witthe tru th. This concern w ith liberty-taking an d truth-saying brings uto the role of law in regulating comedy, but that is only part of threason why the law intervenes to end the laughter and punish thcomedian.

s o HOV^̂ DOES COM EDY INTE RSE CT W IT H LAW? CONCEPTUALLY, THE

two are most likely to intersect whenever comedy is oj^ènsive that i


3/27

Traditionally, such rules could be found in th e follovwng areas of law:

• blasphemy,• sedition,• defamation,• inten tion al infliction of em otiona l distress, and even• treason.

It is noteworthy that where the wrong involves such offenses(criminal or civil), it has long held (and continues to be so in manynations) that truth is no efense so long as the comic message caused ormight cause some injury to one s person, reputation, belief system, ornation.

Freedom entails risks. The free life is th e risky life. And th e freestlife is the one env isioned by the First A m end m ent to our Go nstitution.For th at freedom urges us to tolerate th at wh ich we loathe , tha t w hichtests our faith in God, country, and humankind itself From a FirstAmendment perspect ive, properly understood, nothing is sacredwhen it comes to freedom of expression. Nothing—not religion,patriotism, or even family—is beyond critique, criticism, or comicco ntem pt. This faith in freedom comes to us on the backs of th e lessonslearne d from th e great dissen ters rang ing from G hrist to Luther, from

the Quakers to the Gommunists, and from Tom Paine to Tom Haydenand beyond. In short, that lesson teaches that nothing is categoricallycertain in life w he n it comes to messages in the m arketp lace of ideas.Toleration born in skepticism, also properly understood, is the hall-m ark of the Enlightenm ent. And the American expe rime nt in life andlaw is inextricably linked to th at ex pe rim en t con cernin g the ques t fort ruth.

But certainty and truth are not the only values enshrined in theFirst Amendment There is also the value of self-expression the right


4/27

mocks the sacred, th at is he r right; and if she holds to a creed offensito others , that, too, is her right.

The First Am endm ent is, in a sense, a great M adisonian triu m pprecisely because it symbolizes the com m itm ent of a nation ot to sacri-fice th e Socrateses and the Joans of Arc of history to th e d eath cham beWe tolerate them, in important part, because we stand to learn frothem even when what they say uproots the very traditions and beliewe hold sacred. Equally im porta nt, their ex perim ent in freedom— thone ha nd waving free —is our expe rim ent.

The irony in tolerating th at wh ich we loathe is so great as to bcomic. Such irreverence has been carried down through the centuriin satire and comedy, in works rang ing from those by Jon atha n Swto Charlie Chaplin and beyond. society th at can laugh a t itself and aw ha t it holds dear is a society strong enou gh to be free, open-mindeenough to be tolerant, and confident enough of its own values to toleate others.

There is, to be sure, a certain irony in discussing comedy and ivalues in the co ntex t of law, which is rarely funny. I am no t unm indfoft ha t irony. Still, insofar as th e Lenny Bruce (1925-1966) story is ulm ately the story of an Am erican's ques t for freedom, it seems fitting reflect u pon t ha t story given the topic of this special issue.

Against that backd rop, let me tu rn to the ribald and robust com ed

of Lenny Bruce, a com edian wh o died of an overdose of m orp hin e . and th e police. So now, ladies and gen tlem en, Lenny Bruce

uestion W hy did you kill Christ, Jew?Reply: Yes, we killed him, and if he comes back we'll killhim again.

—Lenny Bruce


5/27

So, who was Lenny Bruce? Bom in 1925 and dead some 40 yearslater, Lenny was the most controversial comedian of his day, the man

who single-handedly changed the very architecture of Americancomedy. He dared to speak th e u nspeak able. His MO was to reveal th ehypocrisies that lay at the base of establishment mores.^

His m ission: to expose the lie abo ut wo rds and to liberateth em from social taboos. ' Respectability m eans u nd er t he covers . . .th at 's wh at it mea ns' (Collins and Skover 2002, 3). And by his satiri-cal comedy, Lenny Bmce intended to rip the covers off and expose thenaked tmth about religious hj^ocrisy, political cormption, race rela-tions, sex, drug use, and homo sexuality— all topics tha t o ther com edi-ans of is day never dared to touch or address as openly, brazenly, andauthentically.

It was in nightclubs th at he launch ed a radical change in com edy.Lenny bounced from one idea to the next—everj^hing from frivolity to

raun ch, from Yiddish spritzes to jazz jive, from biting satire to philo-sophical reflection. In all of this, one of is favorite devices was to givepublic voice to offensive words. Repeating them again and again, hehoped to defuse th eir pow er to shock, wo und, or paralyze.

When you breach taboos and slaughter sacred cows, you invitetrouble. So, prosecutors in San Francisco, Los Angeles, Chicago, andNew York—four of the most culturally sophisticated cities in America

in the early 1960s—^went after Lenny for word crimes. And they didn'tlet the First Amendment stand in their way. It was at that juncture,and for th at reason, tha t we discover in the Lenny Bmce story the pres-ence of some of the most skilled First Amendment lawyers and schol-ars who sided with Bruce—not necessarily because they agreed wit

his message, but ra the r because they defended his right to deliver tha tmessage.

One of those peo ple who stepped forward to defend Lenny Brucewas a m an nam ed HarryKalven Jr He lived in Chicago and hked Lenny


6/27

received a telephone call from Bmce. That conversation, as v^ath muc h of Lenny s life, was tape-recorded by Lenny. Here, more or less

som ething of how it opened:

perator Good afterno on. University of Chicago, may help youLenny: Hi, can you connect m e to Harry Kalven in the law scho perator One m om ent please.Kalven s Secretary: Professor Kalven s office.Lenny: Hi, is Harry in?Secretary: W ho may say is calling?Lenny: Lenny.Secretary: I m sorry, I did n t get your last name.Lenny: Lenny, like in Lenny Bmce. Just tell Harry it s Lenny. Heknow.^

Lenny Bmce was calling to chat with one of the 29 free-speelawyers who represented him between 1961 and 1966. But HarKalven, one of his Illinois appellate lawyers, was im portantly differenth an all of the rest. Professor Kalven was, like Lenny Bruce, a free spiritBut the similarities pre tty mu ch ended the re. He was a learned m angrad uate of the University of Chicago Law School and the n a professat the schoo l. He was a noted figure in the law and w as also one of t

leading autho rities on the First Am endm ent.About this time, Kalven devoted much of his thought to the la

of obscenity (Kalven 1960), particularly as that law was then undestood in ligh t of the Suprem e Co urt s 1957 ml in g in Roth v. United

States That opinion, by the then-young Justice Wilham Brennan, boexpanded First Amendment freedoms in the area of sexual expresion and yet co ntinue d to restrict the reach of those same fireedomKalven felt conceptually and constitutionally uncomfortable wiR th d it t g i l di i i b t liti l h ( h ith


7/27

instances in wh ich speech tha t should be protected would be swept upv^ath speech deem ed to be v^âthout any value.

And that is where Kalven's interest in People v mce cam e in. Thiswas the case he had bee n wa iting for— the case to show th e court andthe nation that Roth needed to be revised to protect vital speech thatwas mistakenly deemed obscene by pohce and prosecutors. What washap pen ing to Lenny Bruce was a prime example of wh at was going terri-bly wrong vidth the law that allowed a comedian with a biting socialmessage to be imprisoned for word crimes. If People v. ruce could mak eits way to th e High Court, the n Justice Brenn an an d his colleagues couldbe convinced of th e e rror of the ir ways and People v. mce could becom ea landm ark case in the law of obscenity. It was a grea t p rospect.

BEFORE SAYING MORE ABOUT K A LV E N ' S INTERESTS IN THIS CASE

and the future of the First Am endm ent, let me note a few mo re thing s

about the man of the moment, the comedian Lenny Bruce. As I havealready mentioned, between 96 and 1964, Lenny Bruce was bus ted forobscenity for routines he performed in comedy clubs in San Francisco,Chicago, Los Angeles, and New York Let m e add a little more about thebits tha t got Lenny into trouble.

The first obscenity bus t was in California in late 1961. Bruce lovedplaying San Francisco. W ith its beat poets, jazz hipster s, and free spir-

its, it was made for Lenny's dissident worldview. Lenny was a regularat all of the North Beach hangouts, including City Lights Bookstore,ov^med by Lavwrence Ferlinghetti, the publisher of Allen Ginsberg'scontroversial poem Howl and Other Poems Lenny had worked the citysince 1958, when he opened in North Beach. One place that he lovedwas Ann's 440, a spot knovsTi for its lesbian and gay patronage. Threeyears later, onstage at th e Jazz W orkshop, Lenny described th e pho necall that first brought him to San Francisco and Ann's 440. Lenny's

g h d ll d t t ll hi th t h h d b b k d tj i t ith


8/27

landed Lenny in jail. He faced charges of violating Cahfom ia's obscenity law.

In November 1961, Lenny appeared in the San Francisco munici-pal court before an elderly an d conservative judge , Albert Axelrod. JudgAxelrod conducted a quickie trial that all bu t assured Lenny's conviction. After h ear ing the testimony of two police v«tnesses , Axelrod waready to convict and sentence even efore the defense put on its caseFortunately for Lenny, Axelrod postponed the trial until he returnedfrom his vacation.

Before leaving, however, the judge issued a stern warning toLenriy no t to use any of the sam e vulgar language at his upcom ing SanFrancisco Curran Theater concert. Axelrod warned Lenny that, if hused such words on the Curran Theater stage, the comedian would bdragged before the court once again, and this tim e, Lenny be tter bringhis toothbrush.

Characteristically, Lenny could not resist flirting with contemptof court. With the San Francisco prosecutor sitting in the audience,Lenny mo cked Judge Axelrod's cour t proceedings in a fanciful bit called Blah Blah Blah. He used the three-word te rm as a euph em ism for th ewo rd cocksucker th at he could no longer safely say onstage . Considethe irony in this routine: although everybody in the audience kneww ha t the phrase Blah Blah Blah stood for, Lenny could n ot give pub lic

voice to the 10-letter word that it signified. s fate had it Lenny Bmce was spared , at least in San Francisco. His

new defense attorney, an CLU lawyer nam ed Albert Bendich, manag edto get the case reassigned to a liberal judge w ho h ad ru led several yearearlier in favor of First Am end ment pro tection for G insberg's Howl Thetrial before Judge Clayton Hom and jury lasted three days. Thanks tothe judge's generous First Amendment instmctions to the jury (basedon Bendich's mem orand um of law), Lenny was found not guilty. Onlyi S F i ld L b i d b j (C lli d Sk


9/27

Though obscenity charges were the legal hook for all of Lenny'sprosecutions, in Chicago he was essentially busted for blasphemy—it

was his riffs on religious hypocrisy that tweaked the noses of the policeauth orities. One of the rou tines th at got him in trouble was a bit called"Christ and Moses." Here, the two biblical figures appear at the backof New York's lavish St. Patrick's Cathedral. Cardinal Francis Spellmanis deep into his sermon when he is interrupted by Archbishop FultonSheen, w ho alerts Spellman to their heavenly visitors. W hen the arch-bishop interrupts him, Spellman foams: "Would you go back to theblack ward and stop bugging me now? . . . Alright, put the choir onfor ten minutes." (Choral singing: Waa, aah, aah, ahh) "What is it?"Informed of the ir heavenly visitors, Spellman panics: "Did Christ brin gthe family? W hat's his mo ther 's n a m e ? .. . Mary Hale? Hail Mary? HairyMary? I don't know what the h e l l . . . . If this ever gets ar o u n d .. . . Oh,Christ, look at the front door. The lepers are coming " Flesh is fallingon the polished floors. Spellman is frantic. He calls Rome: "Hullo, John?Fran, in New York. Listen, a coupla the kids dropp ed in Yah, you knowthem ." Once the pop e reahzes wh o the two V Ps are, Spellman explodes:"Well, we've gotta do something. . . . Put 'em up in your place. . . .W ha t am I paying pro tection for? .. . Look, all I know is th at I'm up tomy ass in crutches and w heelchairs here Is tha t good enough for you?This place is getting ridiculous here. They're in the back, way in the

b a c k .. .. Of course, they 're white " Click.The vernacular became vulgar. He was crossing the line. Rude

assaults on religion and the Catholic Church would cost him. Perhapsfunny to us now in retrospect, bu t just consider wh at the Irish CatholicChicago police authorities heard in that brief phone conversationbe twe en C ardinal Spellman and Pope Joh n Paul. Lenny had reduced thechurc h hierarchy to mo bsterism ( What are we paying prote ction for?");

its mission of racial equahty to bigotry ("Of course, they're white "); itscampaign of compassion for the poor and the infirm to total intoler-


10/27

bro ug ht a very attractive Jewish boy vwth him . . . and later, I havelot of kids sta5dng over here . You can just im agine wha t Lenny, if aliv

today, would be doing with the Catholic priest pedophile scandals.Some of the other bits Bruce did at the Gate of Horn include

one titled Karl Adolf Eichm ann . Basically, this was an antiw ar biAlong the same lines, Lenny did a rou tine called War Criminals anHershey Bars. In this, he satirically compared the cmelty of Americawar victors to Japanese war victims. Finally, he did his famous rou tinon race, racism , and race relations— a bit called How to Relax YouColored Friends (Collins and Skover 2009 ,139 -188 , 269-270).

For such routines, Lenny Bruce was convicted by a jury iChicago and sentenced to one year in jail. Accordingly, his trial lawyernow needed to prepare an appeal. And to do that, he needed to finsomeone w ho really knew First Am endm ent law. In time, they founHarry Kalven (Collins and Skover 2002,175-179).^ And that is how thUniversity of Chicago law professor became involved with the ribalcom edian, a man he came to know and love.

eople V Bruce had enorm ous poten tial to create a new bodFirst Amendment law. The case appeared to provide the conceptuaframework to allow Justice Brennan and his colleagues to re think RoV. United States. Now, Harry Kalven could put to the test the ideas had floated in his seminal 1960 article, The Metaphysics of the Law o

Obscenity. Am ong othe r things, Kalven challenged the Roth prem istha t the First Am endm ent could e divided so neatly into two ca tegories,one of protected speech (for exam ple, political expression) and a no theof un pro tected speech (obscenity, for example). He also questioned thsoundness of the notion that traditional free speech values should noalso apply to new forms of artistic, literary, and erotic expression.

eople V. Bruce then, could be the test case to reexamine Ro

After all, there was so very much in Lenny's bits that lent itself to fuFirst Amendment protection For openers Lenny's satirical comed


11/27

into bold relief Lenny was being prosecuted (albeit indirectly) for

blasphemy. But the Supreme Court already had made it clear 17 yearsearlier tha t the re was little or no room for blasphemy prosecutions ina world committed to the First Amendment of James Madison {Joseph urstyn 506). Moreover, the obscenity prosecutions in San Francisco, s Angeles (Collins and Skover 2002,183-188), and n ow Chicago weremade possible because Lenny's offensive words— all the cocksuckers,schm ucks, and fucks — were surgically lifted from his rou tines. In

othe r words, his message was no t being considered as a whole.Lenny Bruce was not a mad m an w riting dirty words on the walls

of a pub lic toilet. He was, it was often said, an original social critic w ithan unc onventional vocabulary. That was the central them e of the briefHarry Kalven and his colleagues filed for Lenny Bruce's appeal to theIllinois Supreme Court in its November 1963 term . W hen com pleted,the brief offered three First Amendment arguments:

• First, th e sodal commentary argument Lenny's routines were steepedin bitter social criticism of unquestionable value.

• Second, the no erotic ejfect argument fundamentally, Lenny's styleinvolved the none rotic use of erotic words.

• Third, the no obscenity argument as a ma tter of con stitutional law,the nonerotic use of erotic words cann ot be obscene.

As was his custom, legal Lenny pored over the briefs. After read-ing what Kalven had written on his behalf he then sent a WesternUnion telegram from his home in Los Angles to his Chicago lawyers: With a brief hke tha t, I wou ldn 't m ind loosing [sic] the case LoveLenny. Kalven and his co-lawyers wired back: With a chen t like you,

we do mind losing the case (Collins and Skover 2002 ,182).However impressive the academic community found Kalven's


12/27

stressed that Bm ce's wo rds we re of a vulgar and revolting nature

His act, m ied the court, appealed to a m orbid or shameful intere sin nudity, sex, or excretion. The prob lem, con tinued th e court, wano t wh at Bm ce said, bu t rath er how he said it. If he wanted to criticizreligious leaders or the norms of the day, he could do so provided hdid so in a tasteful way. s for th e Roth case, the Illinois justices rejectethe argument that Roth protected material with any redeeming sociaimportance.

Four days after the Illinois Supreme Court upheld the one-yeaprison sentenc e against Bm ce, the US Suprem e Court issued its judment in JacobeUis v. Ohio Though the 6-3 judgment affirmed the FirAmendment claim in that obscenity case, the court spoke by way oseveral opinions. Still, it now seemed clear enough that obscene matrial could be excluded from constitutional proteetion only if the matrial was utterly vwthout rede em ing soeial im po rtanee{ acobeUis 196

484). Thus, sexually oriented m aterial th at advoeates ideas or th ahas literary, scientific, or artistic value, or any other form of sociimportance, cannot be branded obscene and thereby be denied FirAmendment protection. Moreover, in making such determinationcourts are no t to employ a balancing test.

The message was clear to Kalven: the Illinois Supreme Couruling was now plainly contrary to binding First Amendment preedent. This was a good om en for it m ean t tha t th e US Supreme Courtwould be more inclined to review People v. Bruce And having grantereview, the justices could consider Kalven's First Amendment arguments in a case with sympathetic facts. It was almost too good to bt m e . Victory was right aro un d th e co rner; the m lin g in Roth was aboto be eclipsed by a precedent that would breathe new life into th

First A m end m ent and the law of obscenity. Though he was troubleby the fact that Lenny was still on the legal hook, Kalven was non


13/27

The impossible happened: on July 7, 1964, the Illinois SupremeGourt withdrew its opinion and judgment in People v. Bruce This tookplaee, by the way, just as Lenny was in the midst of a long obseenitytrial in New York. The IUinois high eourt made a rare requ est th at theparties file suggestions eoneerning the effeet of the recent SupremeGourt First Amen dm en t ruling , in the case of Jacobellis v. Ohio Moreover,the court had done this on its own motion. Even Lenny, who was usedto betting on long sho ts in his legal struggles, could n ot have foreseenthis extraordinary development.

Naturally, Lenny's Illinois appellate team, led by Kalven, urgedthe court to reverse its earlier course. The state justices initially hadaffirmed Illinois' balancing approach to obscenity questions becausethe US Supreme Gourt had never been unequivocal in rejecting thatapproach. Jacobellis was now unequivocal in its rejection of balancing.The Illinois high court, it seemed, was obliged to overturn Lenny's

conviction if his act had any social value. W hatever one may th in kof Mr Bruce's performance, it cannot be said that his work is 'utterlyvd tho ut social im po rtance ,' Kalven's new brief to the court declared(Golhns and Skover 2002, 269).

Not so fast, cautioned the Office of the State's Attorney. Theappellant's argument rested on a logical fallacy. Although obscen-ity is without any socially redeeming importance, the opposite is not

true. Put simply, material containing hot sex scenes or gross vulgari-ties surely cannot be immune from obscenity regulation just becauseit also contains a nugget of social value or a smidgen of an idea. Thecorre ct in ter pr eta tion of Jacobellis, the state suggested, m us t be th at,as a general rule, a court cannot weigh the merits of a work againstthe p ru rient appea l of its sexy parts. But this still wou ld pe rm it censor-ship of Bruce's com edy act: wh atever the g erm s of social im portan ceto be detected w ithin h is rou tines, his patently offensive language and

h d d hi t h th t it ' tt l ith t i l


14/27

con taine d an iota of social im po rtan ce , the re could be no [reaen forc em en t of th e obsc enity laws, as th e state argu ed. On thother hand, if Jacobellis were read to allow censorship because othe lewd or disgusting manner of expressing otherwise valuabideas, there could be no real enforcement of free speech guaranteeObscenity control, after all, is regulation of manners. Thus, if thFirst A m end m ent w ere to m ean anything in the obscenity context, must protect ideas of value despite the socially unapproved mann

of their expression. Would the Illinois high court appreciate thiconundrum?Time was on Lenny Bmce's side, at least in Illinois. The sam

Illinois high court that had voted 7-0 to sustain Bruce's Chicagobscenity conviction five mo nths ea rher now voted 7-0 to reverse andischarge it. There w as a God. Justice did reign . Fate could change anchange it did on November 24, 1964. On that date, the Illinois hig

court issued an unsigned opinion (People v. ruce 1964).^ It consistedof a meager 540 words, only a quarter of which might be called, atoo kindly, legal analysis. This throwaway opinion in People v mce the only official account of any of Lenny's obscenity trials in all of thpublished appellate records.

It is apparent from the opinions of a majority of the court i¡Jacobellis] the opinion acknowledged, that material having any sim po rtance is con stitutionally proteeted. Then, the Illinois justiedisplayed openly their testy and seomful attitude toward th e SupremCourt's m hn g: [W]e would not have thoug ht tha t eonstitutional guaantees neeessitate the subjeetion of soeiety to the gradual dete rioratioof its moral fabrie wh ich this type of presen tation prom otes. Still, thcourt conceded begrudgingly that some of the topics com m ented oby defendan t a re of social importance. Accordingly, the justices unaimously held tha t unde r Jacobellis the entire performance is there


15/27

The uns igned opinion w as an insult to bo th sides. It did not beginto reflect the depth of thought, careful reasoning, and eloquent argu-mentation set forth in the respective briefs. With its curt reversal ofthe judgment, the opinion's precedential value might be dismissed.Perhaps th at is why Lenny was not overjoyed by it. But still, Kalven andhis colleagues had m oved the m ou ntain . They wo n a case that had be enbotched at th e trial level, left largely bereft of a sohd record for ap peal,and prese nted to an uns5mipathetic state suprem e court.

The Illinois high court decision was great in that it returnedfree speech fireedom to Lenny Bmce, at least in that state. Still, oneof Harry Kalven's major hopes had been dashed—the idea that People mce would go all the way to the US Suprem e C ourt and thereafterproduce a landmark First Amendment mling. It never happened. Allthat remained was a pathetic state court opinion of httle precedentialvalue anywhere, even in Illinois. It was a victory for today, but Lenny

Bm ce's life th en hinged so m uch m ore on victories for tomorrow— bigvictories, national victories, the kind that would allow him to traveland w ork in th e big cities of the land.

After the Illinois mling, bad news came to Bmce, yet again. Hewas convicted by a three-judge court in New York after a trial thatspanned six months, involved twelve prosecution witnesses and eigh-teen defense vwtnesses, and consu m ed 2,100 pages of trial transc ripts—

and all this for misd em ean or offenses The New York cou rt sen tencedLenny to four months in the workhouse on Riker's Island. He neverserved that sentence because he fled New York and died of a morphineoverdose som etime later. A rem arkable, b ut little know n fact is th atLenny Bm ce died a convicted m an , and th e conviction stood for decadesafterward (Collins and Skover 2002,189-3 13).

LENNY BRUCE WASN'T ALWAYS FUNNY. HE TOLD HIS SAN FRANCISCO


16/27

laugh abo ut the absurd in life. Yet Lenny Bruce was obviously n ot jua comed ian. An other of his central purposes was to m ake people thiabou t the pretense s of life. Moreover, his mission to liberate w ords waoften amusing as many of his bits reveal. That sam e m ission w as equalrisky, however, as his perseeu tion and proseeution d em ons trate. In tend, the e ourtroom beeam e his stage, and th e stage beeame his eouroom . The eomie Bruce was, at one and th e sam e time , the tragic Bru

Lenny Bruce understood, like no other modem comedian, th

comedy could and should be dangerous. He was no play-it-safe JoBishop or even M ort Sahl, two n oted com edians of the day. He cookespecially w hen the he at was in th e audience. He was a risk taker. Thwas an essential pa rt of w hat ma de h im so exciting, so outrageous,offensive, and so threatening. He mocked the hypocrisy of religiofaiths, of political beliefs, and of puritan ethics. In his own wor I'm pissing on the velvet, tha t's wh at I'm doing (Cohen 1967, 20

It's comedy. Little wonder, then, that politicians, police, prosecutojudges, and a host of other do-gooders could not stomach his defim en t of conven tional m ores. In some im po rtant respect, he paid for comedy with his life.

Yes, Lenny Bruce was the confrontational comic. The need to outspoken—even offensive—was part of his genetic makeup. It walso key to his faith in free speech. He once said, A eoun try can only bstrong when it laiows all about the bad,.. . then it can protect itself

(Collins and Skover 2002, 444). In that sense, Lenny Bruce invencomic realism, and he was claiming the First Am end m ent as his saguard.

After his de ath, Lenny's status as a eultura l ieon rose to un imined heights. Death beeame Lenny's publieity agent. Though he dpen niless, he made it big. There were boo ks, magaz ines, artieles, domentaries, plays, records, posters, tributes, and even copyright a


17/27

Mort Sahl, that he was being emeified for his words. Mort replied inhis typical hipster way, "Hey, man, but don't forget about the resur-rec tion " (Collins and Skover 2002, 351). As Mort predic ted, Lenny hadresurrected.

August 3, 1966—the date of Lenny's death—marked a turningpoin t in this natio n's First Am endm ent history. Am erica's m ost contro-versial comedian stmggled for the freedom to say not only what hewan ted, bu t also to say it the way he w anted. He was denied th at right.

Still, the law ultimately vindicated the principle for which he fought.Lenny liberated nightclubs by tuming them into America's freest freespeech zones.

Lenny has been compared to today's "shock" entertainers suchas Howard Stem or Eminem . Although Lenny was no t PC, he was not ashock performer. W ha t he said ma ttered; it often had substance. Still, hepaved the way for the "shocks," for a liberated First Am end m ent. H ugh

Hefner, a friend and supporter of Lenny's throughout his career, spokefrankly about Lenny's legacy and the importance of First Amendmentprotection for those w ho offend. W hen asked about the problem s asso-ciated wdth extending the boun daries of free speech, he responded:

W ell, it is th e way of thin gs . After all. Pandora d idn 't knowwhat was in the box. What do you get with freedom?

Excesses Exp loitation And w ha t does one say to tha t?"A sm all price to pay. If you d on 't like it, don 't liste n toit, don 't read it, don 't watch it." W ithou t free comm unica-tion, including the vulgarians, we don't have a free soci-ety. Our democracy is based on it. The First Am end m ent isthe first because it is the most important. Everything elsecomes from that (Collins and Skover 2002, 444).


18/27

same po int as Hefner, o bserving that th e history of th e law of frexpression is one of vindication in eases involving speech that macitizens may find shabby, offensive, or even ugly [ layboy 2000, 826The fundam ental guara ntee be que athed to us by James Madison wouallow no less.

Because of the Lenny Bruce saga, comedians— people like th e laGeorge Garhn, Richard Pryor, Ghris Rock, Robin Wilhams, Bill Maheand Margaret Gho—are able to speak authentically vdthout fear

arrest. Not long ago, the young Margaret Gho reflected profoundly Lenny's importance for comedians today and her own connection Lenny. I do n't w an t to end up like [Lenny Bruce], bu t I want to be lihim (Gollins and Skover 2002,449). No dou bt, those words cap ture tsentime nt of any m od em comedian today.

Whatever Lenny Bruce's failings, and he had many, he was nwithout courage. In a real sense, he embodied the First Amendme

Bruce was not afraid to speak his mind by the h gh t of his own tru th awith th e force of his own voice. The tru th he spoke was often unpleant, and w hat he uncovered disturbed those who would silence him. Bbecause Bruce never stopped teUing the truth as he saw it—and in hovwi open, robust, and uninh ibited manner— he made it possible, as Gput it s well, for others to be like him withou t having t end up like him

The legacy of People v. Bruce is un pa ra lle led in t h e histo ry

Am erican law. W hen it was over, really over, the prosecu tion of LenBruce for misdemeanor obscenity

• involved at least eight obscenity arrests (for Bruce alone);• enta iled six trials in four cities;• took some four years and some 3 500 pages of trial tran scripts;• required e ight state trial judges (not including the nu m erou s judg

w ho hea rd bail m atters and p rehm inary m otions, etc.);


19/27

• consumed untold man-hours and am ounts of pubhc monies;• involved appeals and/or petitions to state high courts, federal appel-

late courts, and th e US Suprem e Court (presided over, in tota l, by 22state and federal appellate judges);

• and ban krupted B mce, who once made nearly 200,000 a year inthe early 1960s (Collins and Skover 2002, 403).

And this virtually unp reced ented exercise of gove rnm ent power—w hatwas it for? The answers are equally bew ildering:

• to enforce laws tha t, even at the time, were constitutionally suspector unconstitutionally apphed in light of the n new United StatesSupreme C ourt free speech mlings;

• to invoke crimina l laws in factual situations wh ere it was notentirely clear that prosecu tion was required;

• to prosecute cases in wh ich the pubhc interest was dubious;• and to apply the sanctions of criminal law against a cultural

dissenter whose work, w hen taken as a who le, was clearly of apolitical or social characte r (though no t simply that) (Collins andSkover 2002, 404).

Ultimately, Lenny Bmce was vindicated—in principle, if not

always in practice. However coarse his performances, however brazenhis actions in court, and however bizarre his life, the fact remains thathis speech was allowable as a m atter of law. First, in San Francisco, a juryacquitted him. Second, in os Angeles, no jury was able to convict him—the charges were either d ropped or dismissed. Third, in Illinois, the s tatesupreme court reversed his eonvietion. And fourth, in New York, thestate appellate eourts finally sustained the prineiple of his free speeehelaims, thoug h no t in h is case or in his lifetime. The tragedy, of course, isth t th h hi h l l h di d i t d I th f l


20/27

nent of the supreme law of the land. And yet, James Madison's grecontribution to the Constitution was tmmped in Bmce's lifetime bm ere m isdem eanor statutes—laws misused, misapplied, misconstruemistakenly invoked—to convict America's foremost comic critic. Hwas a criminal whose crime was irreconcilable wit Am erican consti-tutiona l justice.

IN 2 0 0 3 , A CAM PAIGN WAS LAUNCHE D TO PARDON LENNY BRUC

posthum ously. A petition w as sub mitted to the governor of New Yorasking him to correct the historical record to recognize that the lathen—the law of the First Amendment—should have protected Bmchad it not been twisted by those w ho prosecuted him . Here, as attom eRobert Corn-Revere, David Skover, and I noted in our petition,^ are threasons why such a pardon shou ld be gran ted:

• There is never a wro ng time to do the right thing. Admittedly,a posthum ous pardon by definition cann ot alter the plight of adeceased person. In tha t narrow sense, such a pardo n com es toolate to save a living perso n from the acknowledged w rongs of theState. Non etheless, a posth um ous pard on does have other salutaryand socially-beneficial effects.

• It corrects the institutional record by publicly exp ung ing the gui

associated with the unlav^rful or unconstitutional actions of theState.

• It has precedential value as an official declaration tha t such unlawful or un cons titution al ac tion will no t be repea ted in the future.

• It corrects the reputationa l me m ory of the deceased person byclearing his or her name in the historical record.

• And finally, it serves as a pubhc apology, an adm ission by the Statth at it once exerted its powers in ways that ca nnot be reconciled


21/27

A pos thum ous pard on for Lenny Bruce would furtherthe free-speech values embedded in the federal and stateconsti tutions, and would recommit the State of NewYork to ho no ring its own con stitutional charte r tha t nolaw shall be passed to restrain or abridge the liberty ofspeech or of the press. It wou ld also rep rese nt an ong oingcommitment by the State that it will respect the rights ofliving entertain ers; th at it will no t do to the m w hat it did

to Lenny Bruce in 1964 w he n it abridged his right to speakhis mind freely and by the light of his ovra reason. In thissense the past is not prologue, but is instead a reminderof what can go terribly wrong when rights are sacrificedto official orthodoxy. That reminder, memorialized in anoffieial pardon, would he lp pro tect the bre ath ing spacethat is so vital to candid, creative, and socially-conscious

communicat ion by enter tainers in par t icular and thepubhc in general.

Having said that, we drew upon the legacies of comedy, free speech,and the First Am endm ent:

Pardoning Lenny Bruce would be more than a S3mibolicstatement. It would be a real and robust commitment tochange the wrongs of the past by respecting the rights ofthe living, of the Lenny Bruces of today an d tom orrow . Thehistory of social entertainment—dating back before thetime of the Greek-comic poet Aristophanes—is a recordof perform ers taking creative chances w ith acceptablenorm s of com municative behavior. The legacy of entertain -ers— including irreverent poets, ribald comedians, gadfly


22/27

system of freedom of expression, rooted in the great prinei-ples of free speeeh and self-realization, o pera tes best w he nit eneourages ex perim entation , invites diverse views, andprompts people to reconsider the boundaries of what issocially acceptable in the communicative realm. To keepthe m ind 's eye static is to blind it.

On December 23, 2003, Governor George E. Pataki of New York

gran ted o ur petition and posthum ously pa rdoned Lenny Bruce (Semp2003,1).^ It was the first posthu m ous p ardo n in the h istory of New York

and may have been the first time in American history when someonwas posthum ously pardone d for a crime for which th e First A me ndm enhad been raised as a prim ary defense. The governor said:

The posthumous pardon of Lenny Bruce is a declara-

tion of New York's commitment to upholding the FirstAmendment. Freedom of speech is one of the great-est American liberties and I hope this pardon serves asa reminder of the precious freedoms we are fighting topreserve as we co ntinue to wage the w ar on terror.

As we noted at the time, it was an important, albeit symboliblow for the free speech principle (Collins and Skover 2002,1). The leattorn ey in the m atter, Robert Corn-Revere, agreed: There is only onreason for Governor Pataki to do this: for the principle of the thin(Semple 200 3,1).

Regardless of w he the r th e e ternally rebellious Lenny ruce wouldor would n ot have wa nted such a pardo n, it is im portan t that the recordof his First Amendment innocence be set straight. And regardless whether the governor was sincere in granting the pardon, given th


23/27

played a small role in the story of a ma n wh o m ade a real difference inthe h istory of free speech in America.

WHAT IS ONE TO MAKE OF ALL OF THIS? WHAT LESSONS DOES IT

teach us about liberty and comedy? The Lenny Bruce story teaches us,amo ng other things, that where comedy is the m easure, we shouldn 'ttake ourselves too seriously. Assuredly, we stand to be offended. Butthat is the price of liberty. If it were o therw ise, if m ere offence could

give rise to civil or criminal liabihty, then what would be the point ofthe First Amendment? That is, if it didn't protect speech that offends,why would we need it?

This is not only a lesson in toleration; it is, more importantly, alesson in civic life. True, toleration can breed contempt; it can fosterbias; it can scorn what we hold to be sacred; and it can make us feelunco mfortable abo ut ourselves and our loved ones. So, w ha t to do? Do

we take refuge in the censor's remedy? Do we tu rn to the law to weighin with its heavy hand? I hope not. That is not the American way, ormore accurately, that is not the American ideal The answer is neithersilence nor is it punishment by the state. The answer is more speech(Whitney 1927, 377)—people speaking out, people speaking the ir minds.In the shadow of the First Amendment, we as a people are best whenwe are robust; w he n the re is am ple give-and-take in that ma rketplace

of views w e call society.Gomedy is no t always nice; it's not always funny; and som etimes

it's more ribald than rational. Why then protect it? What's the point?Where's the value?

Think of it: could no t the same be said of most of the movies wewatch and the mu sic we listen to? How m uch value is there in muc hof the rap m usic tha t has caught th e ear of a new generation? And w hatabout poetr} ̂ How much logic is there in the works of, say, Stephan


24/27

night. In her freedom, we see the legacy of centuries of suppressibeing lifted in the na m e of liberty.

iCnow this: liberty is an expe rim ent. And hke all exp erim ents,may fail. Tha t is a risk a free peop le mus t take . Make no mistake aboit. If you w an t to be en tirely safe, the n you canno t be free. If you w aa world free of offense, then that world cannot be free. The premiunderljáng liberty is that in our freedom we vwll make better choicthat we vwU be more human, that we will rehsh diversity, that we vi

savor life more, and th at p erhaps we m ay experience a few laughs aloth e way. That, at least, is the hope . Call it a collective h un ch if you vdIt is a hu nc h th at we have gamb led our all on.

Ch ristopher Hitchens was right: a hum orless society is a tyranncal one. Take comedy out of that beaker we call democracy and whdo you have?—a 984 world. There is no laughter in Orwell's Oceanthere is only enforced seriousness, the kind that destroys the hum

spirit.There is enough in our lives that is depressing without the

being bereft of laughter, even at another 's expense. That 's whecomedy comes in—it lightens our life-load by making light of everthin g th at w eighs on u s. A free society is one th at can laugh at itselfand its laws allow it to do so. Although it is ironic given his own exprience s, mayb e th at' s wh y Lenny Bruce was fond of sajdng tha t tlaw is a beau tiful th in g (Cohen 1967, 280). And Bruce, m ore thany other Am erican com edian, helped to mak e it so. No wo nder thdespite all his devilish ways, Lenny Bruce is the pa tron saint of comedclubs.

O T S

1. The s tandard , a lbei t controversial , biog raph y is Ladies and Gentlemen

Lenny Bruce (1974) by Alb ert G old m an . For Bru ce's ov^oi vie w of


25/27

2. Based ge ner al ly on aut h or 's no tes of a tap e rec or din g owTied by

Robert Weide of Southern California.

3 . Bruce had two o th er nota ble appe l la te lawyers w ho w ork ed w i th

Kalven on the I l l inois appeal . They were Maurice Rosenfield and

W illiam R. M ing, Jr.

4. All su bs eq ue nt quo tes from this opin ion derive firom th e gen eral cita-

t ion given herein.

5. Th e pe tit io n is available on line at .6. Go verno r Patak i 's pa rd on is available on line at .

R F R N S

Bruce, Lenny. 1963 . How to Talk Dirty and Influence People. Chicago: Playboy

Press.

Co hen, Joh n, ed. 1967. The Essential Lenny Bmce. New York Bell Pubhshing.Collins, Ronald, and David Skover. 2002. The Trials of Lenny Bmce: The Fall

and Rise of an American Icon. Nap erville, IL: Sou rceboo ks.

Goldman, Alber t . 1971. Lad ies and Gentlemen, Lenny Bmce New York:

Random House.

Hitchins, Chris topher. 2011. Arguably. Essays. New York Twelve.

Jacobellis V Ohio, 3 78 U.S. 184 (1964).

Joseph Burstyn, Inc. v Wuson, 3 43 U.S. 495 (1952).

Kalven, Harry. 1960. The Metap hysics of th e Law of Obscenity.Supreme

Court Review.

. 1988. A Worthy Tradition: Freedom of Speech in America. New York:

Harper and Row.

Nachman, Gerald. 2004. Seriously Funny: The Rebel Comedians of the 195 s and

1960s. New York: Backstage Books.

Newman, Roger K., ed. 2009. The Yale Biographical Dictionary of Am erican


26/27

Roth V. United States 354 U.S. 476 (1957).

Semple, Kirk. 2003 . 37 Years After His D ea th, Lenny Bruee Reeeives

Pardon. New York Times Deeem ber 23 .

Weide, Robert , produeer. 1998. Lenny Bruce: Swear to ell The Truth. San

Fernan do, CA: W hyad uek Produet ions.

Whitney V California 274 U.S. 357, 377 (1927) (Brandeis, J., e on eu rrin g).


27/27

Copyright of Social Research is the property of New School for Social Research and its content may not be

copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written

permission. However, users may print, download, or email articles for individual use.

Comedy & Liberty Lenny Bruce

Documents

Transcript of Comedy & Liberty Lenny Bruce