The New York Sun

Editorial Section, p. 6

May 30, 2003

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Pardon Lenny Bruce

Governor Pataki has a petition sitting on his desk, supported by such figures as Floyd Abrams, Penn & Teller, and Robin Williams, requesting that Lenny Bruce be pardoned posthumously. He has a chance to right a wrong that goes back to December 21, 1964, when the state of New York sentenced Bruce to four months in prison for uttering dirty jokes.

More specifically, Bruce was arrested under Sec. 1140-A of the New York Penal Code that prohibited, "obscene, indecent, immoral, and impure" speech. Apprehended by plain-clothes policemen in the dressing room of the Café Au Go Go, Bruce asked the arresting officer what the grounds of his arrest were. When the policeman mistakenly stated Sec. 1040, Bruce, ever the legal scholar, correctly replied, "But that’s prostitution."

Bruce’s trial lasted six months as 30 witnesses were called and 2,000 pages of court transcript were produced to convict him of a misdemeanor offense. Contrary to popular belief, Bruce’s conviction was not overturned in 1968. Rather, an intermediate state appellate court had annulled the conviction of Howard L. Solomon, the owner of the nightclub where Bruce had made his remarks concerning Eleanor Roosevelt’s bust and Jacqueline Onassis’s posterior. Bruce had died nearly two years earlier, in the middle of his legal appeal.

At the time of the controversy, a petition opposing the charges leveled against Bruce — signed by, among others, Norman Podhoretz — stated that, "It is up to the audience to determine what is offensive to them; it is not a function of the police department of New York or any other city to decide what adult private citizens may or may not hear." Then, as now, there is a difference between committing sex acts in broad daylight and telling off-color jokes in a nightclub to consenting adults.

While the coarsening of our culture is certainly a concern, Bruce’s conviction is a legal anomaly. By the time he died, Bruce had faced prosecutions in four jurisdictions across the country for his ribald take on the Catholic Church and use of saucy Yiddish expressions. Yet in all but the New York case, the criminal charges were eventually set aside on free speech grounds. According to Ronald Collins, the co-author of the recently published "The Trials of Lenny Bruce" and a scholar at the First Amendment Center in Arlington, Va., this case is "unprecedented in the annals of American law. It is the only time that a comedian was arrested, prosecuted, and convicted for word crimes committed in a nightclub."

If New York were to follow the precedent set by Bruce’s conviction today, then nearly every comedy club, theater, and art gallery in the city would be shut down and hundreds of artists put behind bars. As Mr. Collins says, Bruce’s conviction stands as "an affront to anybody who respects freedom of speech. The historical record needs to be set straight." And as the recently filed petition states: "There is never a wrong time to do the right thing."

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