I felt that way this past week when I read the obituary of a Manhattan attorney named Richard Kuh. You have probably never heard of him. I hadn’t either, yet it was Kuh who served as the prosecutor in a proceeding involving one of the more famous First Amendment controversies in modern history: the 1964 Café Au Go-Go trial of the comedian Lenny Bruce.
Bruce was – actually, he still is – a hero to many for a coarse humor that acted in the time as a rich font of social commentary, a send-up of organized religion, sexual repression, political hypocrisy and establishment mores. His was a cause that attracted many artists and writers who in the conformist fifties wanted to see establishment manners brought down. “I learned the truth from Lenny Bruce,” Simon and Garfunkel sang, and when the law obstructed Bruce – he was arrested on obscenity charges in San Francisco, Los Angeles, Philadelphia, and finally New York – a gaggle of literary celebrities, among them Woody Allen, William Styron, James Baldwin, Norman Mailer, and Allen Ginsberg, publicly defended him as an artist whose First Amendment expression was being stifled by overzealous prosecutors.
Wherever Bruce performed, the police followed with interest, but prosecuting obscenity – particularly obscenity in the form of words – has always been difficult. In California, Bruce was once charged for using the Yiddish term “schmuck,” which the authorities naively thought was a term for “penis” – in fact, a “schmuck” is a moron (the word “putz” refers to penis though it, too, has morphed into a term for moron.) Comedian George Carlin’s “Seven Words You Can Never Say on Television” skit – which he created a few years later – was actually inspired by Bruce who counted nine “forbidden words” in his skit vocabulary.
By the time of his arrest at Café Au Go Go, a nightclub in Greenwich Village, Bruce, who led a life of drug abuse and debauchery, was in decline. Undercover police had observed the show and, convinced that Bruce’s references to sexual anatomy were beyond the law, arrested both him and the club-owner. Looking over the trial transcript, which I have over the past few days, it is fascinating to watch Kuh try to demonstrate that Bruce’s graphic sexual humor was aimed at “arousal,” which was what he needed to prove “obscenity,” when it seems so clear that Bruce intended to shock by pointing out the absurdity of rigid social customs. Nonetheless, Bruce was convicted, 2-1, by the three-judge panel. He appealed the decision but died of a drug overdose before the appeal could be heard. In 2003, he was posthumously pardoned by New York Governor George Pataki.
Bruce’s legacy is difficult to measure. On the one hand, his story helped lead to Supreme Court decisions that made it harder to prosecute obscenity, affording a greater latitude in First Amendment expression. (Indeed, a few years ago, Kuh, who practiced law into his eighties, commented to a reporter that Bruce’s monologues would not be the target of prosecution any more.) Yet on the other hand, taking his act as more about “banned words” than about serious communicative expression has led some to confuse the objective of the First Amendment. Who among us doesn't wish for a more civil discourse, even in our humor? The same week that Kuh’s obituary ran in The New York Times there was a story about three up-and-coming women comics whose stock-in-trade is jokes about rape.Todd Brewster is the Director of the National Constitution Center's Peter Jennings Project and the Center for Oral History at West Point.