- Shopping Bag ( 0 items )
From the Hardcover edition.
From the Hardcover edition.
|PART I Talking Dirty||13|
|PART II "Congress Shall Make No Law..."||55|
|PART III In Defense of the Offensive||103|
|PART IV The Big Chill||137|
|PART V Who Owns an Idea?||173|
|PART VI Stretching the Limits||219|
|PART VII Reinventing the First Amendment||263|
I had flown cross-country to California the previous night, but the time difference might have been measured in years rather than hours. It was as if I had gotten trapped in a time warp, for here in Los Angeles, on a winter morning in 1994, I was reading from testimony I had elicited thirty years earlier in the heart of a New York summer. The cases were vastly different in legal context, but they shared a common thread, which was this nation's obsessive preoccupation with the concept of obscenity.
My client of three decades past was the legendary Lenny Bruce, who was tried for giving an obscene performance in a Greenwich Village nightclub and sentenced to four months in jail. Now I had come to California to represent Martin Lawrence, a popular young, black comedian, at a hearing before the Rating Appeals Board of the Motion Picture Association of America. The MPAA, which assigns ratings to movies, had saddled Lawrence's concert film, You So Crazy, with an NC-17, a euphemistic updating of the old X rating.
It was hard to believe that all these years later I would again be covering ground that had been virgin soil at the onset of the sixties. The country, after all, had been largely transformed since then. A succession of Supreme Court decisions had defused most state and local laws that restricted the use of language. The concept of obscenity, never easily defined, had become so vague that the courts were reluctant to touch it. But Martin Lawrence was not entangled in the legal machinery. He faced, in fact, no charges at all. He was confronted with a more insidious form of censorship.
The significance of an NC-17 rating is not merely cosmetic. While technically it does nothing more than limit theater admission to those over the age of seventeen, its consequences cut far deeper. Many newspapers and television stations will not carry advertisements for films labeled NC-17; theaters in malls and residential neighborhoods are often prevented by lease from showing them; and some of the nation's largest video retailers refuse to stock the tapes. David Dinerstein, vice president of marketing at Miramax, the film's distributor, estimated that such a rating could cut box-office receipts by as much as half. In Martin Lawrence's case, the damage would likely be even greater, for his style and material appealed chiefly to the youthful and the hip.
As a performer, Martin was a composite of anger-driven street talk and soft, socially acceptable fluff. He was mainstream enough to have his own prime-time sitcom and to appear in a number of first-run movies. At the same time, his stand-up routines were laced with a slashing, brutally frank humor including explicit descriptions of sex and body parts that left little to the imagination. Framed largely as social satire, they were delivered in a vernacular common to the streets, their dialect and themes most accessible to a black audience in the same way that Bruce's routines were often sprinkled with Yiddish phrases and references.
Lawrence had built a following with a weekly HBO show, Def Comedy Jam, and a sold-out concert tour, which included five record-breaking nights at New York City's Radio City Music Hall. The concert film, which was shot at the Brooklyn Academy of Music's Majestic Theatre in 1993, drew heavily upon his previous work. It was for that reason that Lawrence, Miramax, and HBO Independent Productions, which produced it, were stunned by the NC-17 label. It was unusual, if not unprecedented, for such a rating to be affixed to a film based on language alone.
"Think about it," Lawrence told me when we met. "A sixteen-year-old can turn on the television and see my act. He can see me live on the stage of Radio City Music Hall. But if the same act is shown on the screen at the same theater, he can't get in even if he's with his parents."
I agreed to handle his appeal after viewing a videotape of the film at my office. I watched it several times. At first I missed much of the humor, and the satirical thrust eluded me. Martin was using a language that was largely unfamiliar to me, dealing with issues that belonged to another culture. But as I watched the film a third time, then a fourth, I gradually became adjusted to his cadence, and the points he was making no longer seemed alien. Then, for the first time, I began to understand why the wit and satire of Lenny Bruce, so close to the marrow of my own perceptions, eluded the grasp of many otherwise sophisticated listeners. Bruce and I, in large measure, shared the same roots, our sensibilities tuned by background to a common pitch. But how could he be easily understood by the sons of another time and place? Who would have been bold enough to try to explain to the choirmaster of a Southern Baptist church that when Lenny depicted a black protester telling Barry Goldwater, "Don't lay that jacket on us, motherfucker," he was not commenting on style of dress or expressing an attitude toward incest?
It would be no easier, I suspected, to explain the work of Martin Lawrence to the members of the MPAA's Rating Appeals Board. I had appeared before the board before, and I knew that the climate in the hearing room would be less than agreeable. The proceedings, held in a small auditorium, began with a showing of the film, and I could see from the start that the members of the panel were totally offended. I had, of course, expected as much. These fifteen people were an unlikely audience for this type of movie. The average age in the room was about fifty, and only one person was not white. There was clearly an unfathomable gap that separated the members of the board from a constituency for the knife-sharp humor of a young black comic. I based my case on that distinction.
The substance of my argument was that it was inequitable to allow a handful of volunteers, with no particular credentials, to assume the role of surrogate parents through an arbitrary rating system. Lawrence, I contended, uses a language and explores a social structure with which the members of the board were unacquainted, and therefore they were not equipped to determine its worth. While the MPAA represents itself as serving merely in an advisory capacity, when it comes to the NC-17 rating, its members are offering more than guidance. They are, in effect, telling me that they are more qualified than I am to judge whether my sixteen-year-old son or daughter is mature enough to see a particular film.
Arguing the case for the MPAA was Richard Heffner, who for the past twenty or twenty-five years had served as the organization's general counsel and did double duty as president of the Rating Appeals Board. Heffner, who was a professor at Rutgers University in New Jersey and for many years chaired a quasi-intellectual talk show on PBS called The Open Mind, presented himself as something of a populist with liberal leanings. But he was well on in years and clearly out of touch with the subculture that spoke Lawrence's language or had a feel for the issues he addressed--the percentage of blacks in prison, their sexual habits, the hostility of blacks toward whites. It was indeed as if Barry Goldwater were trying to comprehend the speech and dialectic of the protest movement in the sixties.
Heffner, who has a bit of the actor in him, enjoyed playing the part of the homespun country lawyer who was wading in waters that might be over his head, when actually he was a well-educated, sophisticated academic who was quite at ease riding the currents of big-city life. On his television show, he had no difficulty exchanging ideas with some of the leading intellectual figures of our time. But now he seemed to have cast himself in the Jimmy Stewart role in Mr. Smith Goes to Washington.
He addressed the board, of which he was a representative, as if it were a panel of jurors chosen for their objectivity. His strategy was to turn the hearing into a kind of class war in which he spoke for the interests of mainstream America while I championed the cause of a small underclass that was looking to turn conventional values upside down. When I introduced the question of censorship and First Amendment rights, he responded in a tone suggesting that a simple, unpretentious college teacher like himself could hardly be expected to debate such matters. He explained that he was not a high-priced attorney, that he did not wear fancy, hand-painted neckties, that he was, at heart, just an ordinary guy who understood what American parents wanted and needed.
Heffner, of course, was preaching to the choir. He was in the enviable position of an attorney who has a jury made up of his clients. When the lunch break came, I went across the street to a diner while he remained in the hearing room having sandwiches and no doubt discussing the case with members of the Appeals Board. The constraints of the courtroom, needless to say, do not apply to hearings before an independent body such as the MPAA. Such proceedings run according to their own peculiar dynamics--one side sets the terms, makes the rules, and picks the jury. If you happen to be the party taking the appeal, you know the deck has been stacked.
I had prepared for this hearing by gathering material that contained language similar to that used by Lawrence. I picked up CD's and tapes of 2 Live Crew and other rap groups, which carry cautionary wording like "Parental Advisory--Explicit Lyrics." My intent was to show that opposition to the use of such language would be a form of de facto censorship, for it would strip the culture that used it of its most potent form of expression. Toward the same end, I had taken with me a copy of an earlier book of mine, Ready for the Defense, which contained verbatim testimony from the trial of Lenny Bruce.
The format of the hearing called for each of us to give a thirty-minute opening presentation followed by fifteen-minute rebuttals and finally ten-minute summations. By the time I got to my closing remarks, it was clear to me that I had done little to tilt the board in my direction. It was then that I decided to introduce some of the testimony taken at the Bruce trial. Among the most persuasive arguments made in Bruce's behalf were those offered by Dorothy Kilgallen, a widely respected newspaper columnist and television personality of that era and as unlikely an advocate of public profanity as one might hope to find. Ever prim and proper in her demeanor, Kilgallen, long associated with the Catholic church and Cardinal Spellman, projected the image of a woman with drawing-room manners who would be more at home sipping tea than watching Lenny Bruce deliver his hard-edged social commentary in a Greenwich Village cafe. Yet there she was, as stiff and stately as she appeared on What's My Line?, a popular Sunday-night TV show on which all the participants wore formal evening clothes, testifying in behalf of a nightclub comic who spoke words never before uttered on a public stage.
Kilgallen's testimony seemed particularly appropriate when Heffner represented my position as being totally permissive. If it were left to me, he suggested, nothing that Lawrence might say or do would be considered unacceptable for public consumption. That, of course, missed the point entirely. My argument was that context was critical and that Lawrence was addressing issues and using language that were consistent with his culture. At the Bruce trial, Kilgallen had made the same distinction in direct response to a question from one of the judges.
"Well, Your Honor," she had said, "to me words are just words, and if the intent and the effect is not offensive, the words in themselves are not offensive .... I have seen entertainers, and I have criticized them, who didn't use these words but were offensive, nevertheless." A bit later, in response to a follow-up question, she noted, "If you said `ass' and you meant a donkey, you could say it and you wouldn't blush."
Unfortunately, Kilgallen's testimony, as perceptive and precise as it was, served Lawrence no better than it had Bruce. The vote went against him, 12 to 3. The producer chose to release the film without an MPAA rating, which meant that its distribution was severely limited. It was shown in selected theaters and did reasonably well. Martin continued to thrive on network television and in MPAA-rated feature films. He went on delivering his stand-up routines unencumbered by legal restrictions or threats of arrest. Lenny Bruce had not fared nearly as well.
I was not quite thirty years old and just five years out of law school when I became involved in the Bruce case. I had recently begun working with Ephraim London, one of the country's preeminent civil-liberties attorneys. London, who handled a great many First Amendment and censorship cases, had come to public notice with a two-volume set of books called The World of Law, which was published in 1960 and sold very well. I was familiar with London's work, particularly his handling of the appeals of Alger Hiss and Jack Sobel in two cold war espionage cases. He had precisely the kind of practice I wanted, and I was ready at the time for a career change.
I had cut my teeth as a young attorney working for Emile Zola Berman, who was then perhaps the greatest trial lawyer in America. My affiliation with Berman began in 1959 when I was still in law school. I attended classes at night and worked as an apprentice during the day. I was paid about thirty dollars a week and served mainly as a gofer who carried the great man's briefcase to court and then as an investigator and trial-preparation assistant. But it was an education that went far beyond law school. Berman was a brilliant criminal lawyer whose notable cases included the defense of Robert Kennedy's slayer, Sirhan Sirhan, but he tried mainly negligence cases, which were more lucrative, and he was in court every day from September to June. By the time I received my law degree I had logged hundreds of court days, prepared witnesses for every conceivable kind of case, and investigated crimes and accidents in half a dozen states. I started trying cases the day I was admitted to the bar. And from then on I, too, was in court every day.
Working with Berman was an extraordinary experience. In the courtroom he was spellbinding; you couldn't take your eyes off him. Small, slender, with a beaked nose protruding from an otherwise flat face, he evoked a Giacometti sculpture. But his physical appearance was offset by his voice and manner. He spoke in meticulously modulated tones that could be either coarse or soothing, at times accusatory and at other times reassuring. Always elegantly attired, he moved about the courtroom with a stately grace, his every movement transmitting to the jury a conviction of the truth of his case, and you could see the members of the panel, in something resembling a hypnotic trance, drawing closer to him as he proceeded.
Because of his reputation, Berman's caseload was enormous, and those cases in which he had little interest were passed along to me. That was how I got my first obscenity case. I represented a filmmaker by the name of Jack Smith who had run into trouble with an experimental movie called Flaming Creatures, a homosexual drag film. It was a welcome break from negligence work, and I realized, probably for the first time, that it was possible to combine trial work with issues that interested me. Nevertheless, the grind of trying cases every day, of seeing one trial stretch into the next and clients merging into one another, had begun to wear me down. The life of a trial lawyer was compelling, but the pressure was fierce. Every day you walked into court and your day came at you with a rush. You might find yourself trying a criminal case, an antitrust case, or a negligence case. A top trial lawyer is like a natural hitter. It was said of Ted Williams that you could wake him in the middle of the night, put a bat in hands, and he would hit the ball somewhere, hard. Trial lawyers are called upon to do that every day.
On some mornings, when you're still new at your trade, you walk into court for a trial that is to start at ten, and at quarter to ten you don't know what the case is about. In boilerplate criminal and negligence work, you barely know who your client is. Someone hands you a file, and you realize that you probably know less about the substantive law in the case than anyone in the courtroom. So you soak up as much as you can in the time remaining and tell the judge your case is ready, because given the circumstances, you are as ready as you'll ever be.
You learn to familiarize yourself with the facts of the case as you proceed, questioning witnesses and reading documents for the first time. The trial lawyer is at a marked advantage in the courtroom because he asks the questions and sets the framework for the trial. At the outset, the judge knows nothing of the facts of the case but knows the law; the jury knows neither; but the attorney knows both, and this allows him to control the proceedings, if he knows how. For example, cross-examining a witness while looking at a document containing his previous testimony makes it possible, often easy, to get a witness to contradict what he said earlier. People rarely mean exactly what they say, and a skilled cross-examiner can add complexity and texture to a statement that at first seemed unambiguous. The ability to get exactly the response you want from a witness is one of the first mechanical techniques a trial lawyer must learn. Thanks in large part to Berman, I had it down pat in my twenties, and once you learn it, it stays with you.
What cannot be acquired so quickly, however, is the ability to be flexible, an essential trait in a good trial lawyer. Every trial has its surprises, and you must be able to adapt to the emergence of new facts and testimony that you haven't prepared for. An unexpected answer to a question can shift the focus of the proceedings in an instant, making it necessary to restructure your case around the new evidence, and it takes years of experience to be able to do that. Every good trial lawyer, to some degree, has the instincts of a sleight-of-hand artist. He understands that, at trial, illusion is truer than reality. The trick is to impose your own version of the facts on the members of the jury so that their view of reality is the same as yours. This is why the legal system is often seen as a contest in which truth plays only a part. For trials are less about truth than about the perception of truth.
Once a trial starts, for the next six or seven hours a day you are totally absorbed in the process; nothing seems to exist outside the courtroom. The days stretch into weeks, sometimes months, and it becomes its own self-enclosed world. Trial work is really high-wire stuff. You learn quickly under those circumstances, but the tension can become unbearable. It came as no surprise to find that drinking was an occupational hazard among trial lawyers. I knew many who spent their days in court and their nights in a bar, and their personal lives were often as chaotic and unpredictable as their worst days at trial. While working with Berman, I decided that I didn't want that kind of life and it would be best to get out while it was still early.
During the previous few years, I had crossed paths with Ephraim London on a number of occasions. While doing trial work for Berman, I had started my own practice, reflecting a different set of values, handling a number of censorship cases for Greenwich Village artists, poets, and principally filmmakers. Foreign films were just coming into vogue during the late fifties and early sixties, and many of them stretched the boundaries of what was considered acceptable in the United States. This was the era of underground moviemaking, of experimentation on film. There were no ratings in those days, but you needed a license to show a film in a public theater, and the censors were busy denying them. I took as many of those cases as I could handle, often for little or no money. London was doing the same kind of work on a far grander scale, and I kept running across his name. He represented Grove Press and Janus Films, distributors of many of the foreign films that were having censorship problems. Eventually, we got to know each other. We acted as cocounsel on a few cases and found that we complemented each other rather nicely.
London was basically an appellate attorney. He did very little trial work. I, on the other hand, had been doing nothing but trial work for the past three years. I had virtually been baptized in the free-for-all climate of the courtroom and had grown secure in the feeling that if eyes locked hard, I would not be the first to blink. But I had never argued an appeal and was unaccustomed to the more scholarly demands it entailed. The appellate attorney begins with nothing more than a trial record, and if his side has lost, he must develop new, imaginative arguments that competent lawyers before him failed to make. It means spending many hours in libraries, reading scholarly law journals and advance sheets of the thousands of decisions that come down each week throughout the United States. It requires a different disposition from that of a trial lawyer; a style for which London could have been the prototype.
London possessed the manner of a patrician. He was a man whose stately elegance suggested that he deemed himself above the fray. I, by contrast, was a streetwise kid who grew up in Bronx tenements alert to the possibility of danger around every corner. These were qualities that often proved useful in the rough-and-tumble of the courtroom. They would be particularly welcome in the pyrotechnic atmosphere that surrounded the obscenity trial of Lenny Bruce.