Pardoning Lenny Bruce’s language

Tuesday, January 6, 2004

What wouldn't the authorities do to bust Lenny Bruce? In the early 1960s, prosecutors from California to New York repeatedly tried to nail America's most infamous comedian on obscenity charges. In one instance, Los Angeles authorities set out to nab Bruce for his ribald Yiddish shtick. But the law said that in order for someone to be guilty of obscenity, there had to be a complainant who actually understood the offending words. So they tracked down a Jewish sheriff and sent him undercover, armed with a notebook. Once they had the hard evidence, they bagged Bruce, cuffed him and carted him off to the slammer. It would have been funny if it had not been so frightfully real.

Bruce, who died of a drug overdose in 1966 at the age of 40, finally received a measure of justice last week when Gov. George Pataki pardoned him nearly 40 years after he was convicted of obscenity in New York. It was a long time coming.

At a time when other stand-up comics told mother-in-law jokes, Lenny Bruce provoked people to think seriously about race, religion and politics; he challenged the prevailing attitudes toward sex, drugs and “dirty” language, and he ripped into social conventions and mocked the Establishment's hypocrisy. Like a prowling panther, Bruce bit sharply, leaving the stage strewn with the high ideals, mighty truths and core beliefs that he attacked as shams.

“What I want the people, my friends, to dig is the Lie,” he explained. “Respectability means … under the covers.” Bruce dared to speak the unspeakable, and to tease and taunt his audiences. One of his favorite devices was to publicly voice hateful words and epithets. Repeating them again and again, he hoped to defuse their power to shock or wound.

But those who violate social taboos and slaughter sacred cows invite legal troubles. And so it was for Lenny Bruce.

Between 1961 and 1965, Bruce was arrested nine times for obscenity and was prosecuted six times. These misdemeanor obscenity prosecutions involved eight state trial judges (along with the numerous judges who heard bail matters and preliminary motions); required more than a dozen state attorneys and double that number of billable-hour defense lawyers; prompted civil-rights suits by Bruce in federal courts in New York, Los Angeles and San Francisco; consumed untold man-hours and public monies, and entailed appeals or petitions to state high courts, federal appellate courts and the U.S. Supreme Court, presided over, in total, by 25 state and federal appellate judges.

One way or another, he was almost always vindicated. A jury in San Francisco exonerated him. In Los Angeles, his cases were dismissed. Although he was convicted in Chicago, the Illinois Supreme Court reversed that conviction.

His 1964 obscenity conviction in New York, however, was never overturned. Bruce, by that time depressed and bankrupted by his legal battles, fired his lawyers and handled his own appeal, unsuccessfully. In August of 1966, bad luck, bad law and bad drugs finally took their toll. He died a convicted comedian, a man condemned for his words.

Last May we petitioned Gov. Pataki to pardon Bruce. Aided by Robert Corn-Revere, a noted First Amendment lawyer who handled the matter pro bono, and backed by a number of prominent entertainers and legal scholars, we asked the governor to do what had never been done before in New York, to pardon someone posthumously. We felt a pardon was in order first because Bruce's New York conviction was contrary to First Amendment law as it existed in 1964, and secondly because after Bruce died New York's appellate courts reversed the conviction of his co-defendant, the man who owned the club in which he was arrested for obscenity. Just as important, however, it was necessary to clear the books of the lone precedent in America that sanctioned the conviction of a comedian for word crimes in a comedy club.

Whatever one thinks of Lenny Bruce — whether one sees him as an astute satirist or just a publicity-hungry entertainer — his influence cannot be denied. For better or worse, Bruce revolutionized the character of comedy and liberated the world of comedy clubs. He was the confrontational comic: outspoken, frank and offensive. Had Bruce not paid the proverbial dues, it would have been difficult or impossible to find a public venue for a witty George Carlin, a free-spirited Margaret Cho or an uncensored Robin Williams.

Thanks in significant measure to Lenny Bruce, the modern American comedy club is a free-speech zone. It is one of the few public spaces where the First Amendment is given full reign. Highbrow political criticism and social satire mix it up with coarse and less elevating expression. Comedians enjoy the personal liberty to be uninhibited, robust and wide open, all without fear of government censorship.

Did Lenny Bruce help pave the way for the coarsening of our culture? Yes, to some extent he did. But with liberty comes excess; there is no escaping it.

The First Amendment is premised on the notion, as Justice Louis Brandeis long ago opined, that more speech is better than censorship. If the Lenny Bruces of the world offend us, then refute them, but don't silence them. That, at least, is the American way. Lenny Bruce understood that in ways that his prosecutors never did.

With his pardon, Gov. Pataki struck an important, albeit symbolic, blow for this principle. Still, the temptation to censor is always out there. One can only hope that whenever public officials, including the governor, veer from the path of freedom, there will be a modern-day Lenny Bruce around to boldly step forward and mock them with wild, irreverent and hilarious abandon.

Posted with permission of the authors. This article originally appeared in Forward on Jan. 2, 2004. Ronald K.L. Collins is a scholar at the First Amendment Center in Arlington, Va. David M. Skover is a professor of law at Seattle University. They co-wrote The Trials of Lenny Bruce: The Fall and Rise of an American Icon (Sourcebooks, 2002).