Ronald K.

L Collins
Comedy and Liberty: The
Life and Legacy of Lenny
Bruce
The people who must never have power are the humorless.
Christopher Hitchens
LAUGHTER IS VITAL TO THE HUMAN CONDITION IF ONLY BECAUSE

the alternative would be horrific. To laugh is to liveit makes brute

existence tolerable. It is the path that points away fiom tragedy. As the
ancient Greeks knew, if tragedy affirmed the meaning of our existence,
then comedy (kmida) affirmed the possibility of humankind rising
above the misery of our collective condition. Like tragedy, comedy
participates in the Dionysian dance, but it does so in ways that deride
the very gods who would harm us. In that regard, comedy not only
helps us to cope with the absurdity of our situationit also helps us
expose the hypocrisy of the righteous, which is essential to any sensible
society... and sometimes makes for a good joke as well.
Comedy can be emdite or entertaining, or both. And yes, it can
be mde and ridiculous, just as life itself can be. In its finest moments,
comedy is the enemy of fanaticism, the foe of t3^anny, the adversary of
strident know-nothings, the nemesis of the pompous, and the friend of
skepticism in an over-confident world. Then again, sometimes comedy
is no more than the source of a full belly laugh.
Comedy is no respecter of persons. It is irreverent toward
Athenian philosophers, Ehzabethan kings, French emperors, American
statesmen, and even derisive against such holy figures as Mother Teresa

social research Vol. 79 : No. 1 : Spring 2012 61

of Calcutta. Sometimes comedy is divine, other times farcical, sometimes operatic, other times poetic, and still other times shamelessly
vulgar. As it moves along the continuum from sauciness and scandal to
sacrilege and sedition, comedy mocks everything in its sardonic path.
Of course, sometimes the laugh is on us as when we chuckle over our
ovwi foibles when pointed out to us by the man on stage. And then
there are satire and irony as well as parody, burlesque, exaggeration,
and double entendre. Together, they have been employed over the ages
to "punch" out the likes of the mighty or to make "svdft" shrift of their
imperial imperatives.
It is a given: comedy takes liberties. So, too, it depends on
liberty to survive. Absent that symbiotic relationship, comedy would
collapse into tragedy. When Aristophanes poked fun at the warmongers of his times in his lysistrata (411 BC), he did more than provide
grist for a rib-tickling romp. He was, among other things, suggesting that no real Athenian men could end the ceaseless mayhem and
squander of young lives. That sort of thing stands to offend those
who wage war, those who govern the governed. In a similar vein,
there is his play titled The Clouds (423 BC), in which Aristophanes ridicules Socrates. No wonder that in his famous work. The Republic (circa
380 BC), Plato banished poets of Aristophanes' ilk (Book III). For Plato,
it wasn't simply the offense promulgated by the poets that prompted
his philosophical concern. What was also problematic was the lack
of a firm link to truththat is, that comic poetry took liberties with
the truth. This concern with liberty-taking and truth-saying brings us
to the role of law in regulating comedy, but that is only part of the
reason why the law intervenes to end the laughter and punish the
comedian.
s o HOV^^ DOES COMEDY INTERSECT WITH LAW? CONCEPTUALLY, THE

two are most likely to intersect whenever comedy is oj^nsive, that is,
when it mocks, scorns, derides, ridicules, or pokes fun at person or
creed or cause or even an idea. Where such an oftense is perceived,
the law will summon up various rules to address the alleged injury.

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

blasphemy,
sedition,
defamation,
intentional infliction of emotional 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 many
nations) that truth is no defense so long as the comic message caused or
might cause some injury to one's person, reputation, belief system, or
nation.
Freedom entails risks. The free life is the risky life. And the freest
life is the one envisioned by the First Amendment to our Gonstitution.
For that freedom urges us to tolerate that which we loathe, that which
tests our faith in God, country, and humankind itself. From a First
Amendment perspective, properly understood, nothing is sacred
when it comes to freedom of expression. Nothingnot religion,
patriotism, or even familyis beyond critique, criticism, or comic
contempt. This faith in freedom comes to us on the backs of the lessons
learned from the great dissenters ranging from Ghrist to Luther, from
the Quakers to the Gommunists, and from Tom Paine to Tom Hayden
and beyond. In short, that lesson teaches that nothing is categorically
certain in life when it comes to messages in the marketplace of ideas.
Toleration born in skepticism, also properly understood, is the hallmark of the Enlightenment. And the American experiment in life and
law is inextricably linked to that experiment concerning the quest for
truth.
But certainty and truth are not the only values enshrined in the
First Amendment. There is also the value of self-expression, the right
of the autonomous individual to speak her mind as she vwshes for no
reason other than that she is entitled to that respect in any.democracy
worthy of the name. If she speaks truth to power, that is her right; if she

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63

mocks the sacred, that is her right; and if she holds to a creed offensive
to others, that, too, is her right.
The First Amendment is, in a sense, a great Madisonian triumph
precisely because it symbolizes the commitment of a nation not to sacrifice the Socrateses and the Joans of Arc of history to the death chamber.
We tolerate them, in important part, because we stand to learn from
them even when what they say uproots the very traditions and beliefs
we hold sacred. Equally important, their experiment in freedomthat
one hand waving free!is our experiment.
The irony in tolerating that which we loathe is so great as to be
comic. Such irreverence has been carried down through the centuries
in satire and comedy, in works ranging from those by Jonathan Swift
to Charlie Chaplin and beyond. A society that can laugh at itself and at
what it holds dear is a society strong enough to be free, open-minded
enough to be tolerant, and confident enough of its own values to tolerate others.
There is, to be sure, a certain irony in discussing comedy and its
values in the context of law, which is rarely funny. I am not unmindful
ofthat irony. Still, insofar as the Lenny Bruce (1925-1966) story is ultimately the story of an American's quest for freedom, it seems fitting to
reflect upon that story given the topic of this special issue.
Against that backdrop, let me turn to the ribald and robust comedy
of Lenny Bruce, a comedian who died of an overdose of morphine . . .
and the police. So now, ladies and gentlemen, Lenny Bruce!

Question: Why did you kill Christ, Jew?

Reply: Yes, we killed him, and if he comes back we'll kill
him again.
Lenny Bruce
FUNNY TO SOME, OFFENSIVE TO OTHERS. THUS IT IS WITH COMEDY.

One person's laughter is another's anger. If it were not so, some comedy
would not be funny.

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So, who was Lenny Bruce? Bom in 1925 and dead some 40 years
later, Lenny was the most controversial comedian of his day, the man
who single-handedly changed the very architecture of American
comedy. He dared to speak the unspeakable. His MO was to reveal the
hypocrisies that lay at the base of establishment mores.^
His mission: to expose "the lie" about words and to liberate
them from social taboos. '"Respectability means under the covers . . .
that's what it means'" (Collins and Skover 2002, 3). And by his satirical comedy, Lenny Bmce intended to rip the covers off and expose the
naked tmth about religious hj^ocrisy, political cormption, race relations, sex, drug use, and homosexualityall topics that other comedians of his day never dared to touch or address as openly, brazenly, and
authentically.
It was in nightclubs that he launched a radical change in comedy.
Lenny bounced from one idea to the nexteverj^hing from frivolity to
raunch, from Yiddish spritzes to jazz jive, from biting satire to philosophical reflection. In all of this, one of his favorite devices was to give
public voice to offensive words. Repeating them again and again, he
hoped to defuse their power to shock, wound, or paralyze.
When you breach taboos and slaughter sacred cows, you invite
trouble. So, prosecutors in San Francisco, Los Angeles, Chicago, and
New Yorkfour of the most culturally sophisticated cities in America
in the early 1960s^went after Lenny for word crimes. And they didn't
let the First Amendment stand in their way. It was at that juncture,
and for that reason, that we discover in the Lenny Bmce story the presence of some of the most skilled First Amendment lawyers and scholars who sided with Brucenot necessarily because they agreed with
his message, but rather because they defended his right to deliver that
message.
One of those people who stepped forward to defend Lenny Bruce
was a man named Harry Kalven, Jr. He lived in Chicago and hked Lenny
Bmce. He also knew a lot about the First Amendment, as much or
more than perhaps anyone in his day (Newman 2009, 305-306; Rice
et al. 2009, 635; Kalven 1988). In the winter of 1962, Professor Kalven

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65

received a telephone call from Bmce. That conversation, as v^ath so

much of Lenny's life, was tape-recorded by Lenny. Here, more or less, is
something of how it opened:
Operator: Good afternoon. University of Chicago, may I help you?
Lenny: Hi, can you connect me to Harry Kalven in the law school?
Operator: One moment please.
Kalven's Secretary: Professor Kalven's office.
Lenny: Hi, is Harry in?
Secretary: Who may I say is calling?
Lenny: Lenny.
Secretary: I'm sorry, I didn't get your last name.
Lenny: Lenny, like in Lenny Bmce. Just tell Harry it's Lenny. He'll
know.^
Lenny Bmce was calling to chat with one of the 29 free-speech
lawyers who represented him between 1961 and 1966. But Harry
Kalven, one of his Illinois appellate lawyers, was importantly different
than all of the rest. Professor Kalven was, like Lenny Bruce, a free spirit.
But the similarities pretty much ended there. He was a learned man, a
graduate of the University of Chicago Law School and then a professor
at the school. He was a noted figure in the law and was also one of the
leading authorities on the First Amendment.
About this time, Kalven devoted much of his thought to the law
of obscenity (Kalven 1960), particularly as that law was then understood in light of the Supreme Court's 1957 mling in Roth v. United
States. That opinion, by the then-young Justice Wilham Brennan, both
expanded First Amendment freedoms in the area of sexual expression and yet continued to restrict the reach of those same fireedoms.
Kalven felt conceptually and constitutionally uncomfortable with
Roth and its categorical division between political speech (speech with
value) and obscene speech (speech without any socially redeeming
value). For Kalven, the First Amendment simply could not countenance
such a sharp demarcation. There were too many gray areas, too many

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instances in which speech that should be protected would be swept up

v^ath speech deemed to be v^thout any value.
And that is where Kalven's interest in People v. Bmce came in. This
was the case he had been waiting forthe case to show the court and
the nation that Roth needed to be revised to protect vital speech that
was mistakenly deemed obscene by pohce and prosecutors. What was
happening to Lenny Bruce was a prime example of what was going terribly wrong vidth the law that allowed a comedian with a biting social
message to be imprisoned for word crimes. If People v. Bruce could make
its way to the High Court, then Justice Brennan and his colleagues could
be convinced of the error of their ways and People v. Bmce could become
a landmark case in the law of obscenity. It was a great prospect.
BEFORE SAYING MORE ABOUT K A L V E N ' S INTERESTS IN THIS CASE

and the future of the First Amendment, let me note a few more things
about the man of the moment, the comedian Lenny Bruce. As I have
already mentioned, between 1961 and 1964, Lenny Bruce was busted for
obscenity for routines he performed in comedy clubs in San Francisco,
Chicago, Los Angeles, and New York. Let me add a little more about the
bits that got Lenny into trouble.
The first obscenity bust was in California in late 1961. Bruce loved
playing San Francisco. With its "beat" poets, jazz hipsters, and free spirits, it was made for Lenny's dissident worldview. Lenny was a regular
at all of the North Beach hangouts, including City Lights Bookstore,
ov^med by Lavwrence Ferlinghetti, the publisher of Allen Ginsberg's
controversial poem Howl and Other Poems. Lenny had worked the city
since 1958, when he opened in North Beach. One place that he loved
was Ann's 440, a spot knovsTi for its lesbian and gay patronage. Three
years later, onstage at the Jazz Workshop, Lenny described the phone
call that first brought him to San Francisco and Ann's 440. Lenny's
manager had called to tell him that he had been booked at a joint with
a "really bizarre show."
The Ann's 440 routine was fanciful, colorful, and chock full of
some of the same "dirty words" found in Ginsberg's Howl. The routine

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67

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

In November 1961, Lenny appeared in the San Francisco municipal court before an elderly and conservative judge, Albert Axelrod. Judge
Axelrod conducted a "quickie trial" that all but assured Lenny's conviction. After hearing the testimony of two police vtnesses, Axelrod was
ready to convict and sentence even before the defense put on its case.
Fortunately for Lenny, Axelrod postponed the trial until he returned
from his vacation.
Before leaving, however, the judge issued a stern warning to
Lenriy not to use any of the same vulgar language at his upcoming San
Francisco Curran Theater concert. Axelrod warned Lenny that, if he
used such words on the Curran Theater stage, the comedian would be
dragged before the court once again, and this time, Lenny better "bring
his toothbrush."
Characteristically, Lenny could not resist flirting with contempt
of court. With the San Francisco prosecutor sitting in the audience,
Lenny mocked Judge Axelrod's court proceedings in a fanciful bit called
"Blah Blah Blah." He used the three-word term as a euphemism for the
word "cocksucker" that he could no longer safely say onstage. Consider
the irony in this routine: although everybody in the audience knew
what the phrase "Blah Blah Blah" stood for, Lenny could not give public
voice to the 10-letter word that it signified.
As fate had it, Lenny Bmce was spared, at least in San Francisco. His
new defense attorney, an ACLU lawyer named Albert Bendich, managed
to get the case reassigned to a liberal judge who had ruled several years
earlier in favor of First Amendment protection for Ginsberg's Howl. The
trial before Judge Clayton Hom and jury lasted three days. Thanks to
the judge's generous First Amendment instmctions to the jury (based
on Bendich's memorandum of law), Lenny was found "not guilty." Only
in San Francisco would Lenny be acquitted by a jury (Collins and Skover
2002, 37-78). About that time, a triumphant Lenny Bmce left the Bay
Area and headed for Chicago, where he was scheduled to perform at
Chicago's great jazz, folk, and comedy club: the Gate of Hom.

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Though obscenity charges were the legal hook for all of Lenny's
prosecutions, in Chicago he was essentially busted for blasphemyit
was his riffs on religious hypocrisy that tweaked the noses of the police
authorities. One of the routines that got him in trouble was a bit called
"Christ and Moses." Here, the two biblical figures appear at the back
of New York's lavish St. Patrick's Cathedral. Cardinal Francis Spellman
is deep into his sermon when he is interrupted by Archbishop Fulton
Sheen, who alerts Spellman to their heavenly visitors. When the archbishop interrupts him, Spellman foams: "Would you go back to the
black ward and stop bugging me now? . . . Alright, put the choir on
for ten minutes." (Choral singing: Waa, aah, aah, ahh) "What is it?"
Informed of their heavenly visitors, Spellman panics: "Did Christ bring
the family? What's his mother's name?... Mary Hale? Hail Mary? Hairy
Mary? I don't know what the h e l l . . . . If this ever gets around.... Oh,
Christ, look at the front door. The lepers are coming!" Flesh is falling
on the polished floors. Spellman is frantic. He calls Rome: "Hullo, John?
Fran, in New York. Listen, a coupla the kids dropped in Yah, you know
them." Once the pope reahzes who the two VIPs are, Spellman explodes:
"Well, we've gotta do something. . . . Put 'em up in your place. . . .
What am I paying protection for? .. . Look, all I know is that I'm up to
my ass in crutches and wheelchairs here! Is that good enough for you?
This place is getting ridiculous here. They're in the back, way in the
back.... 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. Perhaps
funny to us now in retrospect, but just consider what the Irish Catholic
Chicago police authorities heard in that brief phone conversation
between Cardinal Spellman and Pope John Paul. Lenny had reduced the
church hierarchy to mobsterism ("What are we paying protection for?");
its mission of racial equahty to bigotry ("Of course, they're white!"); its
campaign of compassion for the poor and the infirm to total intolerance ("Look, all I know is that I'm up to my ass in crutches and wheelchairs here! This place is lookin' ridiculous!!"). And, finally, in a much
more nuanced way, Lenny hinted that Spellman was a homosexual: "He

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69

brought a very attractive Jewish boy vwth him" . . . and later, "I have a
lot of kids sta5dng over here." You can just imagine what Lenny, if alive
today, would be doing with the Catholic priest pedophile scandals.
Some of the other bits Bruce did at the Gate of Horn included
one titled "Karl Adolf Eichmann." Basically, this was an antiwar bit.
Along the same lines, Lenny did a routine called "War Criminals and
Hershey Bars." In this, he satirically compared the cmelty of American
war victors to Japanese war victims. Finally, he did his famous routine
on race, racism, and race relationsa bit called "How to Relax Your
Colored Friends" (Collins and Skover 2009,139-188, 269-270).
For such routines, Lenny Bruce was convicted by a jury in
Chicago and sentenced to one year in jail. Accordingly, his trial lawyer
now needed to prepare an appeal. And to do that, he needed to find
someone who really knew First Amendment law. In time, they found
Harry Kalven (Collins and Skover 2002,175-179).^ And that is how the
University of Chicago law professor became involved with the ribald
comedian, a man he came to know and love.
People V. Bruce had enormous potential to create a new body of
First Amendment law. The case appeared to provide the conceptual
framework to allow Justice Brennan and his colleagues to rethink Roth
V. United States. Now, Harry Kalven could put to the test the ideas he
had floated in his seminal 1960 article, "The Metaphysics of the Law of
Obscenity." Among other things, Kalven challenged the Roth premise
that the First Amendment could be divided so neatly into two categories,
one of protected speech (for example, political expression) and another
of unprotected speech (obscenity, for example). He also questioned the
soundness of the notion that traditional free speech values should not
also apply to new forms of artistic, literary, and erotic expression.
People V. Bruce, then, could be the test case to reexamine Roth.
After all, there was so very much in Lenny's bits that lent itself to full
First Amendment protection. For openers, Lenny's satirical comedy
had a strong and inseparable political character. By ignoring this,
lower courts actually had devalued the most cherished form of First
Amendment expression. Furthermore, and as the Chicago case brought

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into bold relief, Lenny was being prosecuted (albeit indirectly) for
blasphemy. But the Supreme Court already had made it clear 17 years
earlier that there was little or no room for blasphemy prosecutions in
a world committed to the First Amendment of James Madison {Joseph
Burstyn, 506). Moreover, the obscenity prosecutions in San Francisco,
Los Angeles (Collins and Skover 2002,183-188), and now Chicago were
made possible because Lenny's offensive wordsall the "cocksuckers,"
"schmucks," and "fucks"were surgically lifted from his routines. In
other words, his message was not being considered as a whole.
Lenny Bruce was not a mad man writing dirty words on the walls
of a public toilet. He was, it was often said, an original social critic with
an unconventional vocabulary. That was the central theme of the brief
Harry Kalven and his colleagues filed for Lenny Bruce's appeal to the
Illinois Supreme Court in its November 1963 term. When completed,
the brief offered three First Amendment arguments:
First, the sodal commentary argument: Lenny's routines were steeped
in "bitter social criticism" of unquestionable value.
Second, the no-erotic-ejfect argument: fundamentally, Lenny's style
involved "the nonerotic use of erotic words."
Third, the no-obscenity argument: as a matter of constitutional law,
the nonerotic use of erotic words cannot be obscene.
As was his custom, legal Lenny pored over the briefs. After reading what Kalven had written on his behalf, he then sent a Western
Union telegram from his home in Los Angles to his Chicago lawyers:
"With a brief hke that, I wouldn't mind loosing [sic] the case
Love
Lenny." Kalven and his co-lawyers wired back: "With a chent like you,
we do mind losing the case" (Collins and Skover 2002,182).
However impressive the academic community found Kalven's
First Amendment arguments, that sentiment was surely not shared by
the seven members of the Illinois Supreme Court. On June 18, 1964,
the court unanimously upheld Lenny Bruce's conviction for mouthing offensive words in a nightclub. The 10-page unpublished opinion

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71

stressed that Bmce's words were of a "vulgar and revolting nature."

His act, mied the court, appealed to "a morbid or shameful interest
in nudity, sex, or excretion." The problem, continued the court, was
not what Bmce said, but rather how he said it. If he wanted to criticize
religious leaders or the norms of the day, he could do so provided he
did so in a tasteful way. As for the Roth case, the Illinois justices rejected
the argument that Roth protected material with any redeeming social
importance.
Four days after the Illinois Supreme Court upheld the one-year
prison sentence against Bmce, the US Supreme Court issued its judgment in JacobeUis v. Ohio. Though the 6-3 judgment affirmed the First
Amendment claim in that obscenity case, the court spoke by way of
several opinions. Still, it now seemed clear enough that obscene material could be excluded from constitutional proteetion only if the material was "utterly vwthout redeeming soeial importanee" {JacobeUis 1964,
484). Thus, sexually oriented material that advoeates ideas or that
has literary, scientific, or artistic value, or any other form of social
importance, cannot be branded obscene and thereby be denied First
Amendment protection. Moreover, in making such determinations,
courts are not to employ a balancing test.
The message was clear to Kalven: the Illinois Supreme Court
ruling was now plainly contrary to binding First Amendment precedent. This was a good omen for it meant that the US Supreme Court
would be more inclined to review People v. Bruce. And having granted
review, the justices could consider Kalven's First Amendment arguments in a case with sympathetic facts. It was almost too good to be
tme. Victory was right around the corner; the mling in Roth was about
to be eclipsed by a precedent that would breathe new life into the
First Amendment and the law of obscenity. Though he was troubled
by the fact that Lenny was still on the legal hook, Kalven was nonetheless elated by the prospect of a victory in the Supreme Court. For
Lenny Bruce, it was exciting too, though it meant more time and more
money in terms of lost opportunities. And these were two things that
Lenny could ill afford at the time.

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The impossible happened: on July 7, 1964, the Illinois Supreme

Gourt withdrew its opinion and judgment in People v. Bruce. This took
plaee, by the way, just as Lenny was in the midst of a long obseenity
trial in New York. The IUinois high eourt made a rare request that the
parties file "suggestions" eoneerning the effeet of the recent Supreme
Gourt First Amendment ruling, in the case ofJacobellis v. Ohio. Moreover,
the court had done this on its own motion. Even Lenny, who was used
to betting on long shots in his legal struggles, could not have foreseen
this extraordinary development.
Naturally, Lenny's Illinois appellate team, led by Kalven, urged
the court to reverse its earlier course. The state justices initially had
affirmed Illinois' balancing approach to obscenity questions because
the US Supreme Gourt had never been unequivocal in rejecting that
approach. 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. "Whatever one may think
of Mr. Bruce's performance, it cannot be said that his work is 'utterly
vdthout social importance,'" Kalven's new brief to the court declared
(Golhns and Skover 2002, 269).
Not so fast, cautioned the Office of the State's Attorney. The
appellant's argument rested on a logical fallacy. Although obscenity is without any socially redeeming importance, the opposite is not
true. Put simply, material containing hot sex scenes or gross vulgarities surely cannot be immune from obscenity regulation just because
it also contains a nugget of social value or a smidgen of an idea. The
correct interpretation of Jacobellis, the state suggested, must be that,
as a general rule, a court cannot weigh the merits of a work against
the prurient appeal of its sexy parts. But this still would permit censorship of Bruce's comedy act: whatever the germs of social importance
to be detected within his routines, his patently offensive language and
manner had soured his act so much that it was "'utterly without social
importance' as a whole."
Practically, the state's reasoning created an unfortunate catch22. On the one hand, if Jacobellis were read to redeem a work that

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contained an iota of social importance, "there could be no [real]

enforcement of the obscenity laws," as the state argued. On the
other hand, if Jacobellis were read to allow censorship because of
the lewd or disgusting manner of expressing otherwise valuable
ideas, there could be no real enforcement of free speech guarantees.
Obscenity control, after all, is regulation of manners. Thus, if the
First Amendment were to mean anything in the obscenity context, it
must protect ideas of value despite the socially unapproved manner
of their expression. Would the Illinois high court appreciate this
conundrum?
Time was on Lenny Bmce's side, at least in Illinois. The same
Illinois high court that had voted 7-0 to sustain Bruce's Chicago
obscenity conviction five months earher now voted 7-0 to reverse and
discharge it. There was a God. Justice did reign. Fate could change and
change it did on November 24, 1964. On that date, the Illinois high
court issued an unsigned opinion (People v. Bruce 1964).^ It consisted
of a meager 540 words, only a quarter of which might be called, all
too kindly, legal analysis. This throwaway opinion in People v. Bmce is
the only official account of any of Lenny's obscenity trials in all of the
published appellate records.
"It is apparent from the opinions of a majority of the court in
Jacobellis]," the opinion acknowledged, "that material having any social
importance is constitutionally proteeted." Then, the Illinois justiees
displayed openly their testy and seomful attitude toward the Supreme
Court's mhng: "[W]e would not have thought that eonstitutional guarantees neeessitate the subjeetion of soeiety to the gradual deterioration
of its moral fabrie which this type of presentation promotes." Still, the
court conceded begrudgingly "that some of the topics commented on
by defendant are of social importance." Accordingly, the justices unanimously held that "under Jacobellis the entire performance is thereby
immunized." (A 92-word concurring opinion by Justice Walter Schaefer,
the court's purported liberal, echoed the state's brief and proposed a
more limited reading of Jacobellis.) The Illinois justices had two final
words: "Judgment reversed."

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The unsigned opinion was an insult to both sides. It did not begin
to reflect the depth of thought, careful reasoning, and eloquent argumentation set forth in the respective briefs. With its curt reversal of
the judgment, the opinion's precedential value might be dismissed.
Perhaps that is why Lenny was not overjoyed by it. But still, Kalven and
his colleagues had moved the mountain. They won a case that had been
botched at the trial level, left largely bereft of a sohd record for appeal,
and presented to an uns5mipathetic state supreme court.
The Illinois high court decision was great in that it returned
free speech fireedom to Lenny Bmce, at least in that state. Still, one
of Harry Kalven's major hopes had been dashedthe idea that People
V. Bmce would go all the way to the US Supreme Court and thereafter
produce a landmark First Amendment mling. It never happened. All
that remained was a pathetic state court opinion of httle precedential
value anywhere, even in Illinois. It was a victory for today, but Lenny
Bmce's life then hinged so much more on victories for tomorrowbig
victories, national victories, the kind that would allow him to travel
and work in the big cities of the land.
After the Illinois mling, bad news came to Bmce, yet again. He
was convicted by a three-judge court in New York after a trial that
spanned six months, involved twelve prosecution witnesses and eighteen defense vwtnesses, and consumed 2,100 pages of trial transcripts
and all this for misdemeanor offenses! The New York court sentenced
Lenny to four months in the workhouse on Riker's Island. He never
served that sentence because he fled New York and died of a morphine
overdose sometime later. A remarkable, but little known fact is that
Lenny Bmce died a convicted man, and the conviction stood for decades
afterward (Collins and Skover 2002,189-313).
LENNY BRUCE WASN'T ALWAYS FUNNY. HE TOLD HIS SAN FRANCISCO

Jazz Workshop audience as much, hours after his first obscenity bust. "I'm
not a comedian," he avowed, "I'm Lenny Bmce" (Nachman 2004,415).
There was paradoxical tmth to his declaration. Lenny Bmce was
obviously a comedian. One of his main purposes was to make people

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75

laugh about the absurd in life. Yet Lenny Bruce was obviously not just
a comedian. Another of his central purposes was to make people think
about the pretenses of life. Moreover, his mission to liberate words was
often amusing as many of his bits reveal. That same mission was equally
risky, however, as his perseeution and proseeution demonstrate. In the
end, the eourtroom beeame his stage, and the stage beeame his eourtroom. The eomie Bruce was, at one and the same time, the tragic Bruce.
Lenny Bruce understood, like no other modem comedian, that
comedy could and should be dangerous. He was no play-it-safe Joey
Bishop or even Mort Sahl, two noted comedians of the day. He cooked,
especially when the heat was in the audience. He was a risk taker. That
was an essential part of what made him so exciting, so outrageous, so
offensive, and so threatening. He mocked the hypocrisy of religious
faiths, of political beliefs, and of puritan ethics. In his own words,
"I'm pissing on the velvet, that's what I'm doing" (Cohen 1967, 206).
It's comedy. Little wonder, then, that politicians, police, prosecutors,
judges, and a host of other do-gooders could not stomach his defilement of conventional mores. In some important respect, he paid for his
comedy with his life.
Yes, Lenny Bruce was the confrontational comic. The need to be
outspokeneven offensivewas part of his genetic makeup. It was
also key to his faith in free speech. He once said, "A eountry can only be
strong when it laiows all about the b a d , . . . then it can protect itself"
(Collins and Skover 2002, 444). In that sense, Lenny Bruce invented
comic realism, and he was claiming the First Amendment as his safeguard.
After his death, Lenny's status as a eultural ieon rose to unimagined heights. Death beeame Lenny's publieity agent. Though he died
penniless, he made it big. There were books, magazines, artieles, documentaries, plays, records, posters, tributes, and even copyright and
trademark lawsuits. And it's then that you know that you've really
arrived.
In death, the stand-up comic had outlasted and outwitted his
relentless prosecutors. When Lenny once complained to his colleague.

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Mort Sahl, that he was being emeified for his words. Mort replied in
his typical hipster way, "Hey, man, but don't forget about the resurrection" (Collins and Skover 2002, 351). As Mort predicted, Lenny had
resurrected.
August 3, 1966the date of Lenny's deathmarked a turning
point in this nation's First Amendment history. America's most controversial comedian stmggled for the freedom to say not only what he
wanted, but also to say it the way he wanted. He was denied that right.
Still, the law ultimately vindicated the principle for which he fought.
Lenny liberated nightclubs by tuming them into America's freest free
speech zones.
Lenny has been compared to today's "shock" entertainers such
as Howard Stem or Eminem. Although Lenny was not PC, he was not a
shock performer. What he said mattered; it often had substance. Still, he
paved the way for the "shocks," for a liberated First Amendment. Hugh
Hefner, a friend and supporter of Lenny's throughout his career, spoke
frankly about Lenny's legacy and. the importance of First Amendment
protection for those who offend. When asked about the problems associated wdth extending the boundaries of free speech, he responded:
Well, it is the way of things. After all. Pandora didn't know
what was in the box. What do you get with freedom?
Excesses! Exploitation! And what does one say to that?
"A small price to pay. If you don't like it, don't listen to
it, don't read it, don't watch it." Without free communication, including the vulgarians, we don't have a free society. Our democracy is based on it. The First Amendment is
the first because it is the most important. Everything else
comes from that (Collins and Skover 2002, 444).
Hefher had special reason to boast. He had just won a First
Amendment victory in United States v. Playboy Entertainment Croup, a
Supreme Court case concerning sexually oriented cable programming.
And in that case. Justice Anthony Kennedy made something of the

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same point as Hefner, observing that the "history of the law of free
expression is one of vindication in eases involving speech that many
citizens may find shabby, offensive, or even ugly" [Playboy 2000, 826).
The fundamental guarantee bequeathed to us by James Madison would
allow no less.
Because of the Lenny Bruce saga, comedianspeople like the late
George Garhn, Richard Pryor, Ghris Rock, Robin Wilhams, Bill Maher,
and Margaret Ghoare able to speak authentically vdthout fear of
arrest. Not long ago, the young Margaret Gho reflected profoundly on
Lenny's importance for comedians today and her own connection to
Lenny. "I don't want to end up like [Lenny Bruce], but I want to be like
him" (Gollins and Skover 2002,449). No doubt, those words capture the
sentiment of any modem comedian today.
Whatever Lenny Bruce's failings, and he had many, he was not
without courage. In a real sense, he embodied the First Amendment.
Bruce was not afraid to speak his mind by the hght of his own truth and
with the force of his own voice. The truth he spoke was often unpleasant, and what he uncovered disturbed those who would silence him. But
because Bruce never stopped teUing the truth as he saw itand in his
ovwi open, robust, and uninhibited mannerhe made it possible, as Gho
put it so well, for others to be like him without having to end up like him.
The legacy of People v. Bruce is unparalleled in the history of
American law. When it was over, really over, the prosecution of Lenny
Bruce for misdemeanor obscenity

involved at least eight obscenity arrests (for Bruce alone);

entailed six trials in four cities;
took some four years and some 3,500 pages of trial transcripts;
required eight state trial judges (not including the numerous judges
who heard bail matters and prehminary motions, etc.);
involved more than a dozen state attorneys and double that
number of billable-hour defense lawyers;
prompted legal actions by Bruce in federal courts in New York, Los
Angeles, and San Francisco;

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 consumed untold man-hours and amounts of pubhc monies;

involved appeals and/or petitions to state high courts, federal appellate courts, and the US Supreme Court (presided over, in total, by 22
state and federal appellate judges);
and bankrupted Bmce, who once made nearly $200,000 a year in
the early 1960s (Collins and Skover 2002, 403).
And this virtually unprecedented exercise of government powerwhat
was it for? The answers are equally bewildering:
to enforce laws that, even at the time, were constitutionally suspect
or unconstitutionally apphed in light of then new United States
Supreme Court free speech mlings;
to invoke criminal laws in factual situations where it was not
entirely clear that prosecution was required;
to prosecute cases in which the pubhc interest was dubious;
and to apply the sanctions of criminal law against a cultural
dissenter whose work, when taken as a whole, was clearly of a
political or social character (though not simply that) (Collins and
Skover 2002, 404).
Ultimately, Lenny Bmce was vindicatedin principle, if not
always in practice. However coarse his performances, however brazen
his actions in court, and however bizarre his life, the fact remains that
his speech was allowable as a matter of law. First, in San Francisco, a jury
acquitted him. Second, in Los Angeles, no jury was able to convict him
the charges were either dropped or dismissed. Third, in Illinois, the state
supreme court reversed his eonvietion. And fourth, in New York, the
state appellate eourts finally sustained the prineiple of his free speeeh
elaims, though not in his case or in his lifetime. The tragedy, of course, is
that though his speech was legal, he died a convicted man. In the formal
annals of recorded law, then, he seemed destined to remain a criminal.
It is beyond ironicthe notion that a First Amendment hero is
outside the law. After all, the First Amendment is law; it is a key compo-

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79

nent of the supreme law of the land. And yet, James Madison's great
contribution to the Constitution was tmmped in Bmce's lifetime by
mere misdemeanor statuteslaws misused, misapplied, misconstrued,
mistakenly invokedto convict America's foremost comic critic. He
was a criminal whose "crime" was irreconcilable with American constitutional justice.
IN 2 0 0 3 , A CAMPAIGN WAS LAUNCHED TO PARDON LENNY BRUCE

posthumously. A petition was submitted to the governor of New York

asking him to correct the historical record to recognize that the law
thenthe law of the First Amendmentshould have protected Bmce
had it not been twisted by those who prosecuted him. Here, as attomey
Robert Corn-Revere, David Skover, and I noted in our petition,^ are the
reasons why such a pardon should be granted:
"There is never a wrong time to do the right thing. Admittedly,
a posthumous pardon by definition cannot alter the plight of a
deceased person. In that narrow sense, such a pardon comes too
late to save a living person from the acknowledged wrongs of the
State. Nonetheless, a posthumous pardon does have other salutary
and socially-beneficial effects."
"It corrects the institutional record by publicly expunging the guilt
associated with the unlav^rful or unconstitutional actions of the
State."
"It has precedential value as an official declaration that such unlawful or unconstitutional action will not be repeated in the future."
"It corrects the reputational memory of the deceased person by
clearing his or her name in the historical record."
"And finally, it serves as a pubhc apology, an admission by the State
that it once exerted its powers in ways that cannot be reconciled
with the supreme law of the land."
After developing those points, we fiirther explained why Lenny
Bmce should be posthumously pardoned:

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A posthumous pardon for Lenny Bruce would further

the free-speech values embedded in the federal and state
constitutions, and would recommit the State of New
York to honoring its own constitutional charter that "no
law shall be passed to restrain or abridge the liberty of
speech or of the press." It would also represent an ongoing
commitment by the State that it will respect the rights of
living entertainers; that it will not do to them what it did
to Lenny Bruce in 1964 when it abridged his right to speak
his mind freely and by the light of his ovra reason. In this
sense the past is not prologue, but is instead a reminder
of what can go terribly wrong when rights are sacrificed
to official orthodoxy. That reminder, memorialized in an
offieial pardon, would help protect the "breathing space"
that is so vital to candid, creative, and socially-conscious
communication by entertainers in particular and the
pubhc in general.
Having said that, we drew upon the legacies of comedy, free speech,
and the First Amendment:
Pardoning Lenny Bruce would be more than a S3mibolic
statement. It would be a real and robust commitment to
change the wrongs of the past by respecting the rights of
the living, of the Lenny Bruces of today and tomorrow. The
history of social entertainmentdating back before the
time of the Greek-comic poet Aristophanesis a record
of performers taking creative chances with "acceptable"
norms of communicative behavior. The legacy of entertainers including irreverent poets, ribald comedians, gadfly
satirists, innovative dancers, and protest singerscan be
found in the laws of blasphemy, seditious libel, and obscenitylaws that have receded in recognition of an everemerging societal commitment to freedom. The American

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system of freedom of expression, rooted in the great prineiples of free speeeh and self-realization, operates best when
it eneourages experimentation, invites diverse views, and
prompts people to reconsider the boundaries of what is
socially acceptable in the communicative realm. To keep
the mind's eye static is to blind it.
On December 23, 2003, Governor George E. Pataki of New York
granted our petition and posthumously pardoned Lenny Bruce (Semple
2003,1).^ It was the first posthumous pardon in the history of New York
and may have been the first time in American history when someone
was posthumously pardoned for a crime for which the First Amendment
had been raised as a primary defense. The governor said:
The posthumous pardon of Lenny Bruce is a declaration of New York's commitment to upholding the First
Amendment. Freedom of speech is one of the greatest American liberties and I hope this pardon serves as
a reminder of the precious freedoms we are fighting to
preserve as we continue to wage the war on terror.
As we noted at the time, it was an important, albeit symbolic,
blow for the free speech principle (Collins and Skover 2002,1). The lead
attorney in the matter, Robert Corn-Revere, agreed: "There is only one
reason for Governor Pataki to do this: for the principle of the thing"
(Semple 2003,1).
Regardless of whether the eternally rebellious Lenny Bruce would
or would not have wanted such a pardon, it is important that the record
of his First Amendment innocence be set straight. And regardless of
whether the governor was sincere in granting the pardon, given the
positions he has taken on other free speech matters, the fact remains
that he did what he was not legally (or politically) obligated to do.
On both counts we make no apologies for seeking the pardon. To the
contrary, we are honored (our pessimistic inclinations aside) to have

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played a small role in the story of a man who made a real difference in
the history 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,
among other things, that where comedy is the measure, we shouldn't
take ourselves too seriously. Assuredly, we stand to be offended. But
that is the price of liberty. If it were otherwise, if mere offence could
give rise to civil or criminal liabihty, then what would be the point of
the 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, a
lesson in civic life. True, toleration can breed contempt; it can foster
bias; it can scorn what we hold to be sacred; and it can make us feel
uncomfortable about ourselves and our loved ones. So, what to do? Do
we take refuge in the censor's remedy? Do we turn to the law to weigh
in with its heavy hand? I hope not. That is not the American way, or
more accurately, that is not the American ideal. The answer is neither
silence nor is it punishment by the state. The answer is more speech
(Whitney 1927, 377)people speaking out, people speaking their minds.
In the shadow of the First Amendment, we as a people are best when
we are robust; when there is ample give-and-take in that marketplace
of views we call society.
Gomedy is not always nice; it's not always funny; and sometimes
it's more ribald than rational. Why then protect it? What's the point?
Where's the value?
Think of it: could not the same be said of most of the movies we
watch and the music we listen to? How much "value" is there in much
of the rap music that has caught the ear of a new generation? And what
about poetr}^ How much logic is there in the works of, say, Stephan
Mallarm or G. K. Williams? If we tolerate such forms of expression, it
is not necessarily because we approve or understand or even like them.
It is because, among other things, we value the individual and her right
to express herself in the light of her own day or in the dark of her own

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83

night. In her freedom, we see the legacy of centuries of suppression

being lifted in the name of liberty.
iCnow this: liberty is an experiment. And hke all experiments, it
may fail. That is a risk a free people must take. Make no mistake about
it. If you want to be entirely safe, then you cannot be free. If you want
a world free of offense, then that world cannot be free. The premise
underljng liberty is that in our freedom we vwll make better choices,
that we vwU be more human, that we will rehsh diversity, that we vill
savor life more, and that perhaps we may experience a few laughs along
the way. That, at least, is the hope. Call it a collective hunch if you vdll.
It is a hunch that we have gambled our all on.
Christopher Hitchens was right: a humorless society is a tyrannical one. Take comedy out of that beaker we call democracy and what
do you have?a 1984 world. There is no laughter in Orwell's Oceania;
there is only enforced seriousness, the kind that destroys the human
spirit.
There is enough in our lives that is depressing without them
being bereft of laughter, even at another's expense. That's where
comedy comes init lightens our life-load by making light of everything that weighs on us. A free society is one that can laugh at itself,
and its laws allow it to do so. Although it is ironic given his own experiences, maybe that's why Lenny Bruce was fond of sajdng that "the
law is a beautiful thing" (Cohen 1967, 280). And Bruce, more than
any other American comedian, helped to make it so. No wonder that
despite all his devilish ways, Lenny Bruce is the patron saint of comedy
clubs.
NOTES

1. The standard, albeit controversial, biography is Ladies and Gentlemen,

Lenny Bruce!! (1974) by Albert Goldman. For Bruce's ov^oi view of his
life and work, see How to Talk Dirty and Influence People (1963). See also
The Essential Lenny Bmce (1967). Then there is the impressive docimientaiy by Robert Weide, which is entitled Lenny Bmce: Swear to Tell The
Tmth, which aired on HBO television in August 1999.

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2. Based generally on author's notes of a tape recording owTied by

Robert Weide of Southern California.
3. Bruce had two other notable appellate lawyers who worked with
Kalven on the Illinois appeal. They were Maurice Rosenfield and
William R. Ming, Jr.
4. All subsequent quotes from this opinion derive firom the general citation given herein.
5. The petition is available online at <http://mc.dwt.com/files/Uploads/
Documents/People/07-ll_BmcePet.pdf>.
6. Governor Pataki's pardon is available online at <http://skoveronline.
net/trialsoflennybmce/pardoned.htm>.
REFERENCES

Bruce, Lenny. 1963. How to Talk Dirty and Influence People. Chicago: Playboy
Press.
Cohen, John, 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. Naperville, IL: Sourcebooks.
Goldman, Albert. 1971. Ladies and Gentlemen, Lenny Bmce!! New York:
Random House.
Hitchins, Christopher. 2011. Arguably. Essays. New York: Twelve.
Jacobellis V. Ohio, 378 U.S. 184 (1964).
Joseph Burstyn, Inc. v. Wuson, 343 U.S. 495 (1952).
Kalven, Harry. 1960. "The Metaphysics of the 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 1950s and
1960s. New York: Backstage Books.
Newman, Roger K., ed. 2009. The Yale Biographical Dictionary of American
Law. New Haven: Yale University Press.
People V. Bmce, 202 N.E.2d 497 (111. 1964).
Rice, John, David Hudson, and David Schultz, eds. 2009. Vol. II, Encyclopedia
of the Erst Amendment, Washington, DC: Congressional Quarterly.

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85

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

Semple, Kirk. 2003. "37 Years After His Death, Lenny Bruee Reeeives a
Pardon." New York Times, Deeember 23.
Weide, Robert, produeer. 1998. Lenny Bruce: Swear to Tell The Truth. San
Fernando, CA: Whyaduek Produetions.
Whitney V. California, 274 U.S. 357, 377 (1927) (Brandeis, J., eoneurring).

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