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“The Trials of Lenny Bruce: The Fall and Rise of an American Icon” by Ronald K.L. Collins and David M. Skover Sourcebooks, Naperville, Ill., 576 pages, $29.95 (includes CD narrated by Nat Hentoff) “Your Honor, it’s like I’m a nigger in Alabama looking to use the toilet — by the time I get the relief, it’s going to be too late.” — Lenny Bruce to the Hon. Thurgood Marshall during his pro se argument before the 2nd U.S. Circuit Court of Appeals. On April 3, 1964, a number of consenting adults went to Caf� Au Go Go nightclub in Greenwich Village. They paid to attend a 10 p.m. performance of a stand-up comic named Lenny Bruce. Bruce was known as the “sick” comic, and they all knew they’d be in for an evening filled with political, racial and sexual satire that would, by turns, offend, amuse and awaken them. Before the show began, Bruce and the nightclub’s owner were arrested for words spoken and gestures made by a fully clothed Bruce in a prior performance. I was born on Dec. 24, 1964, four days after the judge sentenced Lenny to “four months in the workhouse” for his Caf� Au Go Go routine. “[T]he Jew is not remorseful” and “I come before the court not for mercy, but for justice” were colorful statements Bruce made during sentencing. I never studied Lenny Bruce in law school. My experience of Bruce’s humor came well after his controversial performances. Some tapes and a reading of his autobiography “How to Talk Dirty and Influence People.” Before reading “The Trials of Lenny Bruce,” I was unaware of the key role Bruce’s legal tribulations — straight out of the book of Job — had in shaping the boundaries of permissible speech in America. Through painstaking and superbly analyzed scholarship, Collins and Skover have dramatically brought to life one of the greatest legal tales of our American age. [Editor's note: See "Bruce vs. Bluenoses" for another review of this book.] Was Bruce’s act Shakespeare or smut? Much of Bruce’s humor came from law books and attacked statutes, procedures, law enforcement and social, legal and political mores. It had a literary and literate texture the Bard would have relished. Bruce thought that words were clean and that the prurient was interesting and entertaining. He thought killing, intolerance and racism obscene. According to Collins and Skover, I am not the only member of the legal profession ignorant of Bruce’s influence. Most of us “know” about Bruce via Dustin Hoffman’s feature-film portrayal in 1974′s “Lenny,” along with continued pop references crowning Bruce the First Amendment’s martyr-in-chief. As folklore has it, a New York appellate court cleared Bruce posthumously. But why didn’t I study Bruce’s New York County tribulations in law school? As “The Trials of Lenny Bruce” makes clear, Lenny Bruce’s case was so taboo that it was censored. One of the great ironies is that Bruce loved the American legal system and believed in its power to overwhelm the prejudices of judges whom he mocked. But the law has never cleared Bruce. “The Trials of Lenny Bruce” tells us that his conviction is still good law in New York County, the publishing and entertainment capital of the world. On Dec. 4, 1964, the New York Law Journal declined — with a front-page explanation — publication of Bruce’s obscenity conviction on the grounds that the opinion was filled with indecencies. To date, it has never been published and the authors fail to include it in this work. In 1966, Bruce died a convicted man. If the authors are to be believed, Bruce and his unpublishable case law continue to haunt not only New York legal politics, but to define our most precious freedom: the freedom to laugh at and dissent from our leaders’ actions. George Carlin, the “seven-words-you-can’t-say-on-television” hero of the U.S. Supreme Court’s FCC v. Pacifica Foundation, 438 US 725 (1978), was a Lenny Bruce imitator to whom Bruce gave his first career break. Manhattan District Attorney Robert Morgenthau may well owe his election and 28-year incumbency to his predecessor’s prosecution of Bruce. Lenny Bruce was arrested eight times on obscenity charges and had six obscenity court cases against him in four cities. The trials took over four years and filled 3,500 transcript pages. The trials required eight state judges, involved more than a dozen state attorneys and double that number of billable-hour defense attorneys, and prompted legal actions by Bruce in federal courts in New York, Los Angeles and San Francisco. The appeals and petitions to federal and state appellate courts involved 25 judges. All, according to the authors, to enforce laws that were then constitutionally suspect in light of U.S. Supreme Court free speech rulings, to invoke criminal laws in factual situations not requiring prosecution and to apply the sanctions of criminal law against a cultural dissenter whose work, when taken as a whole, was political or social in character. In sophisticated New York City, how could the First Amendment fail? As our government rounds up and registers Arab-Americans in 2003, it’s worth looking at how government lawlessness happens under our noses. Was it because Bruce infuriated Manhattan’s Irish-Catholic district attorney? Bruce did a comedy routine, shortly after the assassination of President John F. Kennedy, over a photograph of a terrified Jackie Kennedy climbing out of the car in which her husband had been shot. Time magazine’s caption claimed that the First Lady was trying to save her husband. She’s “hauling ass,” scorned Bruce, arguing that she was running away as any human would. Bruce’s routines attacked organized religion and the Catholic Church in particular. In the wake of Kennedy’s assassination, this was more than the Irish-Catholic Manhattan District Attorney Frank Hogan and the decency brigade could take. But Hogan wasn’t the first DA to try to shut down Lenny Bruce. Young prosecutor Johnny Cochran Jr. (late of O.J. Simpson trial fame) had tried to shut down Bruce’s act on obscenity grounds. “Community standards.” Chicago. San Francisco. Would Bruce’s act be obscene by the community standards of Greenwich Village? Sometimes Bruce fired his lawyers. Sometimes Bruce’s lawyers dropped him. Bruce secretly taped court proceedings by carrying a briefcase with a tape recorder. The audio CD contains an illegal tape of Assistant District Attorney Richard Kuh cross-examining the Rev. Forrest Johnson on whether the phrase “motherfucker” is in accordance with the Fourth Commandment. At points, Bruce represented himself. Sometimes he performed for the judge and jury. He performed in nightclubs to earn money to pay legal fees, leading to more arrests. Who killed Lenny Bruce? The authors rely, repeatedly, on a statement by Vincent Cuccia, one of District Attorney Hogan’s prosecutors: “We drove him into poverty and bankruptcy and then murdered him. We all knew what we were doing. We used the law to kill him.” But Bruce died of a morphine overdose in his home in Hollywood Hills on Aug. 3, 1966. Rather than appealing the conviction as his lawyers urged, he chose to ignore them and pursue a federal � 1983 civil rights action. When Bruce refused Maurice Rosenstein’s free top-flight appellate counsel to overturn the conviction, Rosenstein told him to “go to Hell.” On Feb. 19, 1968, New York’s Supreme Court Appellate Term, 1st Judicial Department, ruled 2-1 to reverse the judgment of the New York Criminal Court on the obscenity of Bruce’s performances and overturned the conviction of Howard Solomon, the nightclub owner and Bruce’s co-defendant. Due to Bruce’s failure to appeal, his conviction stands today. Even the appellate opinion clearing Bruce’s co-defendant was too obscene to publish. What can I say? Raymond J. Dowd, a Manhattan trial attorney, is a principal of Dowd & Marotta and chairman of the media and law committee of the New York County Lawyers’ Association.

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