Free Speech Attorny and Lenny Bruce Defender Al Bendich Dies

OAKLAND, Calif.—Many in today's adult industry have little idea of how free sexual speech and those who dared to speak it were targeted by conservative law enforcement personnel in the 1950s and '60s—but when they were, people like prominent First Amendment attorney Albert "Al" Bendich were there to defend them. Bendich died of an apparent heart attack at his home in Oakland on January 5. He was 85. Bendich was only two years out of law school—he'd earlier gotten degrees in economics but decided that discipline wasn't for him—when he joined the Northern California branch of the American Civil Liberties Union, and as one of his first assignments, he was tasked to write the defense brief for poet Lawrence Ferlinghetti, who had dared to publish and sell Allen Ginsberg's epic poem Howl in book form—and had been promptly busted for obscenity for doing so. Ferlinghetti was scheduled to go to trial in late 1957, but in June of that year, the U.S. Supreme Court had handed down its ruling in Roth v. United States, in which Justice William J. Brennan, writing for a 5-4 majority, declared that obscenity was not "within the area of constitutionally protected speech or press," and that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were "utterly without redeeming social importance." It was the high court's first attempt to codify obscenity law by creating a definition of "obscenity" as "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." (Brennan, of course, later regretted the decision and became a staunch First Amendment advocate.) "It was incredibly important to provide persuasive arguments to the judge in that case about how he should construe the Supreme Court exception narrowly," said former ACLU president Nadine Strossen, referring to Bendich's brief. "And in such a way that it didn't extend to Howl or City Lights bookstore," which Ferlinghetti owned and operated in Berkeley, California. But despite the fact that the judge in the case, Clayton W. Horn, was a religious conservative, he was apparently profoundly influenced by Bendich's arguments, and ruled for the defense on all counts. "In considering material claimed to be obscene, it is well to remember the motto 'Honi soit qui mal y pense.' (Evil to him who evil thinks.)," Judge Horn concluded following a bench trial. "Therefore, I conclude the book Howl and Other Poems does have some redeeming social importance, and I find the book is not obscene." Bendich first met Lenny Bruce after the comic was busted on October 4, 1961 at the Jazz Workshop in San Francisco for having said the word "cocksucker" on stage, as well as having chanted his later-familiar refrain, "To is a preposition, come is a verb," followed by various sexually-oriented "bits" employing the phrase "to come." Bruce went to trial six months later, and Bendich found himself once again in front of Judge Horn, this time for a jury trial, which Bruce had demanded. Bendich once again impressed the judge with his legal acumen, and the judge's instructions to the jury at the end of the trial mirrored Bendich's proposed instructions almost verbatim. After the jury deliberated for just short of five-and-a-half hours, Bruce was acquitted. (Of course, law enforcement, smarting from their defeat in Bruce's first obscenity trial, hounded him at his performances across the country, busting him for obscenity whenever they could.) In the late '60s, Bendich became co-president of Fantasy Records, a popular label among that era's counterculture ("beatniks"). Lenny Bruce had two albums released on the Fantasy label, and after the company changed its name to the Saul Zaentz Company and began producing feature films in the 1970s, Bendich was instrumental in securing the rights to Ken Kesey's semi-autobiographical novel One Flew Over The Cuckoo's Nest, which became a multi-award-winning film starring Jack Nicholson. "If it were not for Al Bendich making the constitutional points that won the Howl trial for us, the prosecution of publishers who publish something that could be judged obscene would have gone on and on," Ferlinghetti said some years later. "But as it was, even though this was only a municipal court, this was a precedent that stood up all these years. It was no longer possible for some narrow-minded local authority to win a case against a book for obscenity."