The Trials of Lenny Bruce: The Fall and Rise of an American Icon.

AuthorSchauer, Frederick
PositionBook Review

THE TRIALS OF LENNY BRUCE: THE FALL AND RISE OF AN AMERICAN ICON. By Ronald K.L. Collins and David M. Skover. Naperville: Sourcebooks, Inc. 2002. Pp. x, 562, plus CD audio appendix (narrated by Nat Hentoff). $29.95.

In 1950, Felix Frankfurter famously observed that "[i]t is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people." (1) The circumstances of Justice Frankfurter's observation were hardly atypical, for his opinion arose in a Fourth Amendment case involving a man plainly guilty of the crime with which he had been charged--fraudulently altering postage stamps in order to make relatively ordinary ones especially valuable for collectors. Indeed, Fourth Amendment cases typically present the phenomenon that Frankfurter pithily identified, for most of the people injured by an unlawful search are those whose unlawfully searched premises contained actual evidence of the actual crime they actually committed. Other dimensions of constitutional criminal procedure present the phenomenon in a more attenuated way, because liberties like the rights to confront and cross-examine witnesses and to be free of compelled self-incrimination are ones in which it is more likely that the procedural defects will bear on the defendant's guilt. But it is still the case that almost all of the American constitutional law of criminal procedure has been built by those whose underlying guilt could not seriously be questioned.

Just as the guilty have shaped our liberties in the realm of criminal procedure, a similar rhetoric identifies the distasteful individuals who have been at the center of the development of the First Amendment. Indeed, some of these individuals have been considerably more distasteful than the "shabby defrauder," (2) to use Justice Frankfurter's words, who was at the center of the Rabinowitz case. Clarence Brandenburg was a local leader of the Ku Klux Klan. (3) Jay Near's not totally inaccurate observations about the "Jewish gangsters" in Minneapolis stemmed from a much deeper-seated anti-Semitism. (4) Larry Flynt (5) thinks it amusing and harmless to celebrate gang rape (6) or to portray women as pieces of meat. (7) The protagonists in the Skokie litigation (8) comprised much of the membership of the American Nazi Party. The most recent important case involving public marches involved a group who appeared to believe that one could not be simultaneously gay and Irish. (9) Indeed, even some of the less evil figures at the center of the First Amendment's history have hardly inspired genuine affection. Zechariah Chafee took pains to comment on the Jehovah's Witnesses "astonishing powers of annoyance"; (10) we suspect that Paul Cohen (11) may have been inspired as much by a juvenile desire to annoy his elders as by deep antiwar conviction; most of commercial speech doctrine has developed through litigation launched by such luminaries as the Coors Brewing Company (12) and the chain drugstores (13) that anchor so many of our strip malls; and numerous other prominent First Amendment litigants could best be described as "cranks." (14)

Despite the prominence of such a sorry array of First Amendment litigants, there is a parallel story in which there are genuine heroes of the First Amendment--reasonably good people saying important things, at considerable risk to themselves, whose claims were ultimately (even if not in their own cases) vindicated, and whose vindication advanced the cause of the First Amendment. Daniel Ellsberg would fit this characterization, (15) as would the signers of the advertisement in New York Times Co. v. Sullivan, (16) and perhaps also the New York Times itself. Much the same can, and should, also be said about the vast number of civil rights demonstrators, (17) Vietnam protesters, (18) World War I protesters, (19) labor agitators, (20) harmless anarchists, (21) and innocuous Communists, (22) among others, who no less than the Brandenburgs, the Collins, the Flynts, and the Nears have been central figures in the development of the First Amendment.

Because so much of the First Amendment literature has been produced by some of its most illustrious celebrants, it turns out that there is almost always a hero. Sometimes it is a speaker, sometimes it is a lawyer, and sometimes it is a judge, but the literature of the First Amendment, like the literature of epic battles, always has a hero. The First Amendment's most prominent good guys and bad guys have frequently been featured in books and articles, (23) and that literature has been invaluable in helping us to understand the politics and the sociology of the First Amendment's development. (24)

The latest addition to the tradition of books celebrating the First Amendment's heroes is Ronald Collins (25) and David Skover's (26) story of the 1950s and 1960s battles between the outrageous comedian Lenny Bruce and the last throes of vigorous American obscenity law. The book tells an important and engaging story in full and appropriate detail, but even more, it may tell us something about the role that individuals and their stories have played in the development of the law and the culture of the First Amendment.

I.

Lenny Bruce may not be particularly well-known to those generations that did not experience the 1950s or the 1960s, and if nothing else this book is an important account of an important figure. It would be hard to capture fully all that was Lenny Bruce, but this book goes a long way in that direction. Aided by an audio CD including many of his comedy routines, and accompanied by liberal and valuable lengthy quotations from letters and contemporary accounts, Collins and Skover present a Lenny Bruce who was, on the one hand, an extraordinarily talented and genuinely funny and insightful comedian and social critic, but was, on the other hand, just as much a narcissistic and self-indulgent drug addict with tittle sense of himself or his limitations. Indeed, just as the book's material from Bruce's routines make his talent and incisiveness clear, so too do the book's detailed accounts of Bruce's numerous legal and personal battles make obvious the ultimately fatal flaws in his personality. His ability to irritate audiences was part of his talent and had much to do with his fame, but his ability to infuriate police, prosecutors, judges--even sympathetic ones--and especially his own lawyers, whom he fired with some frequency in the wildly mistaken belief that things would go better were he in charge, is a large part of the Lenny Bruce story.

The focus of this book, however, is not on the totality of Lenny Bruce, but on Bruce's engagements with the obscenity laws and with those who enforced them, and it is here that Collins and Skover see Bruce as a hero, precisely the word they use on multiple occasions to describe his relationship with the First Amendment (pp. 1, 7, 10, 359, 404, 431,449). For Collins and Skover, Lenny Bruce is someone who was persecuted because of the way in which his humor challenged conventional values and powerful people, who endured years of legal battles for daring to take on the sacred cows of our society, and who became a "martyr" (pp. 8, 447) to the First Amendment because he refused to let himself be censored. As Collins and Skover tell their story, Bruce continued with his outrageous assault on popular sensibilities even in the face of grave legal--and therefore personal--risk. (27)

Collins and Skover's book is simultaneously an easy and a hard read. Easy because the authors tell an important story with an impressive attention to carefully researched detail and with a good balance between extensive quotations from primary materials and their own comprehensive account. Hard because they tell their story, engaging enough on its own terms, with a heavy-handed sense of outrage, a too simple view of the vices and virtues of the major players, and an extraordinarily liberal use of adjectives, adverbs, italics, exclamation points, and all of the other verbal devices that, on a printed page, substitute for pounding one's fist on the table or grabbing the reader by the lapels. Even more irritating, however, is the book's voice, which, in an attempt to get partly inside Bruce and his culture, refers to Bruce only as "Lenny," which far too often uses the "hip" language of the 50s and the 60s, and which comes across as more the behavior of the outcast trying to ingratiate himself with the "in-crowd" than as a successful attempt to tell a story as perceived by the primary players.

The reader who is willing to put up with these stylistic quirks, however, will be rewarded with a fount of information about a genuinely important episode in modern cultural history and with an account of how the law--in this case the law of obscenity--often plays out not only in the Supreme Court of the United States, but also in the behavior and attitudes of police, prosecutors, lawyers, judges, and of course defendants. Even more important, the reader will come away from this book with the best picture we have so far of American obscenity law in transition, for the period of Bruce's legal difficulties was also the period of obscenity law's transformation. When we look carefully at the relationship between Bruce's legal troubles and this period of transition, however, we may see that Bruce was somewhat less of a hero than Collins and Skover make him out to be and is thus better characterized as someone who both used and was used by law in this transitional period. In truth, Bruce might have emerged as even more of a hero had he been somewhat more concerned about the First Amendment and somewhat less concerned about himself.

II.

The law of obscenity, long an easy target for academic commentators, (28) achieved much of its dismal reputation in the first half of the twentieth century. Although obscenity prosecutions in the United States date from the early part of...

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