Lawyers and Social Change

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We often hear tributes to the Bill Gates and Steve Jobs of the world for how they have transformed society, but let’s not forget that lawyers have made their own important contribution to contemporary culture by creating a free speech system that  allows new ideas to flourish.

In an earlier post, I told the story of how lawyers successfully defended James Joyce’s Ulysses against  obscenity charges in the 1930’s.    This was a major victory in the struggle against censorship, but the war was anything but over.

Another crucial battle took place in San Francisco in the 1950’s, and a young  attorney named Al Bendich played an important role in it.  Bendich’s obituary in the  New York Time tells the story well. Let me summarize it here. San Francisco in the 50’s was  home to the Beat poets, one of whom was Allen Ginsberg.  Many Beats and their admirers hung out at Lawrence Ferlinghetti’s City Lights bookstore.  One night a plainclothes policeman went to City Lights and purchased a copy of Ginsberg’s Howl.    Soon thereafter Ferlinghetti was prosecuted for selling obscene literature.   

The Howl prosecution took place at a very crucial time in First Amendment history.  The Supreme Court in the Roth case had recently ruled that “obscenity” was not protected by the First Amendment.  But the question remained how broadly the obscenity exception would be interpreted.  The Howl prosecution raised this very issue because Ginsberg made liberal  use of graphic sexual language.

The trial took place before a conservative judge in the Municipal Court.   Ferlinghetti was primarily defended by legendary San Francisco trial lawyer Jake Erlich, but the legal brief on the  issue of  obscenity was  written by the neophyte Bendich fresh out of  UC- Berkeley Law school and working at his first job at the ACLU.

The judge not only found the defendant not guilty; he also took the unusual step for a Muni court judge of writing a full opinion which followed the reasoning of Bendich’s brief. The written opinion was widely circulated and admired, a step towards later Supreme Court  decisions that  gave  full  free speech protection  from prosecution to serious works of literature.

Too often the obscenity cases are reduced to spats about “dirty words”.  But there was a lot more at stake than four letter words. As Allen Ginsberg points out, protecting free speech in case like the Howl case meant that people could say in public what they thought in private.  And we can add that when they do, they find out they are not alone.  The engines of social change are ignited and a new world  slowly emerges.  Good –bye “Ozzie and Harriet”!  Hello “The Colbert Report.” !


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