Tough Talk: How I Fought for Writers, Comics, Bigots, and the American Way [NOOK Book]

Overview

The boisterous  freedom promised by the First Amendment is both the heart of American experiment and the fissure along which it divides itself.  Those who would fight freedom's enemies, from political correctness to corporate intimidation to outright censorship, face powerful adversaries.  But they also have a potent weapon at their disposal: good, old-fashioned talk--tough talk.  And as one of America's ...
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Tough Talk: How I Fought for Writers, Comics, Bigots, and the American Way

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Overview

The boisterous  freedom promised by the First Amendment is both the heart of American experiment and the fissure along which it divides itself.  Those who would fight freedom's enemies, from political correctness to corporate intimidation to outright censorship, face powerful adversaries.  But they also have a potent weapon at their disposal: good, old-fashioned talk--tough talk.  And as one of America's leading First Amendment attorneys, Martin Garbus is one of the toughest talkers there is.

Starting with his work on the tam that defended the legendary satirist Lenny Bruce against obscenity charges, Garbus has been a fearless advocate for some of the most important voices of our time, among them union organizer Cesar Chavez, actor Robert Redford, director Spike Lee, writer Samuel Beckett, Russian dissident Andrei Sakharov, and Czech playwright Vaclav Havel, who, as president of his country's revolutionary government, invited Garbus to help write the nation's constitution.

But Garbus is not an ivory-tower theoretician.  He is a highly effective defense lawyer who takes on cases with the full intent of winning.  In Tough Talk, Garbus goes behind the scenes to show us how our system really works and what he does to make it work for his clients.  How does an attorney get controversial cases?  What does he do to gain control of a hostile courtroom?  How does he work with a defendant whose beliefs are the opposite of his own?

Tough Talk is both the story of one man's battle for freedom and a clear-eyed account of every major First Amendment issue this nation has faced in the last three decades, for the battles Garbus has fought have become the touchstones of America's debate about the limits of freedom.  In showing us how he has harnessed his personal idealism to the gritty reality of the courtroom, Garbus gives brilliant testimony to the power of tough talk.

From the Hardcover edition.

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Editorial Reviews

Ellen Alderman
Part memoir, part rant on free speech, [Tough Talk] is a lively chronicle of Garbus's eventful life and career. . . The trade-off for the reader who may want more depth is that the book reads like the wind. -- Columbia Journalism Review
Publishers Weekly - Publisher's Weekly
Garbus is widely known in publishing as a lawyer who has been at the heart of many significant literary cases of the past three decades. He helped get the Pentagon Papers published, quashed the attempt by Academy Chicago to do John Cheever's uncollected short stories (a move that put him on the outs for a time with many publisher friends) and argued several trailblazing cases that helped fiction writers escape libel threats. He unsuccessfully defended Lenny Bruce against accusations of obscenity (only to see the comedian vindicated after his death), yet spoke out on behalf of Nazis wishing to march through a largely Jewish Chicago suburb. He was also the lawyer on the spot in the crisis involving Salman Rushdie and the Iranian fatwa against Rushdie and Penguin, his publisher. Garbus describes himself as a First Amendment absolutist, and his stands have not always been popular with his associates. One of his latest crusades is the curbing of harmful "commercial" speech, e.g., cigarette and liquor advertising aimed at the young. He also describes his beginnings as a poor boy in the Bronx, his early civil rights battles and such triumphant moments as being asked to help draft the constitution for a free Czechoslovakia. His impressive record, which is eloquently, even excitingly, set forth here, offers more revealing personal detail than has appeared in previous books by the authorperhaps at least partly the doing of his skilled coauthor.
Kirkus Reviews
A memoir so engaging that one wishes it were longer. For 40 years, Garbus ("Ready for the Defense", 1971) has been one of our premier lawyers in the fields of First Amendment, publishing, and copyright law. He defended Lenny Bruce in one of the obscenity trials that drove the stand-up satirist to death; turned back the libel suit that delayed publication of Peter Matthiessen's book on the Wounded Knee shoot-out; advised Daniel Ellsberg on bringing the Pentagon Papers to public attention; negotiated Spike Lee's purchase of the Rodney King tapes for use in the film Malcolm X; represented Samuel Beckett when the Nobelist felt that a U.S. theater company had altered the meaning of his play Endgame; and was Prodigy's attorney in one of the first major "cyberlaw" cases. Publishing clients dropped Garbus after he helped John Cheever's family enjoin publication of the author's unpublished early stories, and his fellow libel lawyers turned on him when he represented a rape victim who was unjustly accused by a columnist of fabricating her story. He went to Prague in 1979 to defend Vaclav Havel against a charge of subversion; ten years later, he returned to help draft the new democracy's constitution. Along the way, he brought seminal lawsuits on behalf of welfare recipients in the 1960s and was shot at while aiding Cesar Chavez. Garbus and co-author Cohen ("The Man in the Crowd", 1981) are especially deft at laying out complex legal issues for the general reader. Disappointingly, Garbus says little about what seems to have been a fascinating personal life; in particular, his growth from a timid youth convinced that he would spend his life in his father's Bronx candy store might have been fleshedout to the reader's pleasure and instruction. A fine read for anyone interested in the interaction of law and public life.
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Product Details

  • ISBN-13: 9780307560728
  • Publisher: Crown Publishing Group
  • Publication date: 2/10/2010
  • Sold by: Random House
  • Format: eBook
  • Pages: 324
  • Sales rank: 588,468
  • File size: 2 MB

Meet the Author

Martin Garbus lives in New York City.  He is the author of two previous books, Ready for the Defense and Traitors and Heroes.

Stanley Cohen, who collaborated with Martin Garbus, has written five previous books, including The Game They Played.  He lives in Tomkins Cove, New York.

From the Hardcover edition.

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Read an Excerpt

Chapter 11

In 1988, after a quarter of a century spent fighting court actions aimed at stopping books from being published, I found myself for the first time on the other side of the issue. I was trying to prevent the publication of a book of short stories by John Cheever, the Pulitzer Prize-winning writer who had died six years earlier. It was a complex and bitterly fought case, involving the thorny questions of ownership that often arise after an author's death. Before it was resolved I appeared in four courtrooms in New York and Illinois before twelve state and federal judges in a litigation that spanned three years.

It all began innocently enough, in 1987, when Academy Chicago, a small, specialty publishing house, entered into an agreement with John Cheever's estate to publish some of his uncollected short stories. The deal was the brainchild of Academy's East Coast representative, Franklin Dennis, a young man who had long admired Cheever's work. Over the years, Academy had earned a reputation as a quality small press chiefly by publishing out-of-print classics of nineteenth- and twentieth-century English language literature. Dennis believed that a volume of Cheever's early stories, previously published in magazines but never given life in a Cheever anthology, would be a coup of no small magnitude. He knew that The Stories of John Cheever, an omnibus collection published in 1978 by Alfred A. Knopf, had won a Pulitzer Prize and sold more than 100,000 copies. He reasoned that a subsequent volume held the promise of both financial success and critical acclaim.

Dennis took his idea to Anita and Jordan Miller, the couple who owned Academy. The Millers, who had operated without pretension and in relative anonymity since 1975, were understandably captivated by the prospect of a John Cheever book carrying their imprint. Through a mutual friend, Dennis obtained an introduction to Benjamin Cheever, the author's son, and proposed a joint venture. Dennis would gather some of the Cheever stories, published as early as 1930, and Academy would produce The Uncollected Stories of John Cheever. Those selected for the book, Ben was told, would be approved by the Cheevers, particularly John's widow, Mary, the executor of the estate.

A contract was soon drafted, calling for a small advance of $1,500 with all subsequent royalties to be split evenly between Mary Cheever, designated as the author of the book, and Dennis as editor. Upon signing, Mrs. Cheever received half of her $750 share of the advance, less her agent's 10 percent commission, for a total of $337.50. By contrast, the initial advance for Cheever's previous book of stories brought the author $40,000. By all indications, given the size of the advance and Academy's history of publishing books of modest length for a limited audience, both the Cheevers and Millers envisioned a slim volume that would appeal mainly to students and scholars.

When the search for the stories began, in August of 1987, neither Dennis nor the Millers could have foreseen the mother lode of material that awaited them. Within a few months, they uncovered sixty-eight stories that had not been included in Cheever's seven previous collections, and they were better than expected. Anita Miller, who held a doctorate in English literature from Northwestern University, had originally been skeptical about the quality to be found in Cheever's earliest work, but as she read some of the obscure stories from the 1930s, she "began to get excited," she said. "It's interesting, because it's political, it's the Depression, it's people, it's stuff you don't associate with Cheever, and some of them were awfully good. . . . I realized I was wrong when I thought we'd get second-string, leftover Cheever."

It was at this point that the lights started flashing and the bells began to chime. Dennis and the Millers decided that the book should contain all the stories they had located. While Academy's initial print runs normally averaged between five and ten thousand copies, they now planned a first printing of ten times that number. The Uncollected Stories of John Cheever would be by far the biggest book they had ever published.

Now, with a breakout book apparently just over the horizon, Academy began to move swiftly. Dennis sent Ben a typewritten list of the story titles. In December, on a trip east to a sales conference, the Millers decided to show photostats of sixty of the stories they had collected and fastened in two ring-bound volumes to Ted Chichak, their representative at the Scott Meredith Literary Agency in New York. They told him they expected to publish the book in the fall of 1988. Chichak said he would plan to auction the paperback rights to the book in May, following the convention of the American Booksellers Association. After meeting with Chichak, Dennis took the photocopies of the stories to the Cheever home in Ossining, New York, where he showed them to Mary Cheever. It was the first time they had met; it would also be the last.

Dennis left the binders with Mrs. Cheever. As "author" of the book, she was to read the stories and decide which would be used. The sheer heft of the binders alarmed her, for she had not anticipated a project of this magnitude. Her discomfort grew as she read the stories and deemed many of them unsuited for publication. Furthermore, she found Dennis's introduction and commentary, written as though he were acquainted with the intimate details of Cheever's life, offensive. She regretted having signed the contract and feared she would not be able to stop publication of the book.

When two weeks passed without having heard from Mary Cheever, the Millers did not trouble themselves to call and get her reaction. With Dennis as the driving force, they decided to set sail on their publishing venture with as little interference as possible. On January 3, 1988, just three weeks after Dennis's meeting with Mrs. Cheever, the Chicago Tribune carried an article noting that Academy Chicago had scheduled for October publication "more than sixty stories that did not appear in [John Cheever's] 1978 collection." When the article came to Ben Cheever's attention, the alarm was sounded.
Ben was no ingenue when it came to the business of publishing. He had been a senior editor at Reader's Digest until leaving to edit a book of his father's letters and pursue his own writing career. He was, and still is, married to Janet Maslin, film reviewer for The New York Times, and her colleagues at the Times suggested that he get professional advice. Ben turned to his high-powered literary agent, Andrew Wylie. Together they met with Dennis at the Algonquin Hotel in New York. As far as Wylie was concerned, the project had already proceeded too far and in the wrong direction. Three days after the meeting, he phoned Anita Miller and asked her to terminate the contract. Ben, in his turn, called the Millers and offered to meet with them in Chicago. When they refused, Wylie suggested that the Cheevers consult an attorney. He gave them my name.

By the time Ben called me he had already spoken with two other attorneys. They told him the contract was valid, that the book couldn't be stopped. I thought otherwise. The contract, it seemed to me, was too vague, its language too ambiguous for it to be deemed a valid agreement. Certainly there was nothing in it that could be construed as granting Academy the rights to all of Cheever's uncollected stories. Mrs. Cheever, the contractual author of the book, had never been given the opportunity to produce a manuscript, no less deliver one to the publisher. Besides, having worked the other side of the issue for many years, I knew from painful experience just how potent the laws of copyright were. While libel laws cannot be enforced until after the fact, a justifiable claim of ownership can stop a book in its tracks; courts will issue an injunction halting publication until the dispute over ownership is settled. Since copyright infringement is, in some instances, considered a form of theft, laws governing copyright enjoy a degree of immunity from First Amendment protection. It is, in fact, the only ground other than national security on which prior restraint is permitted.

Confident that the law would work in our favor, I met with Ben and then with Mary Cheever and told them I would take the case. On February 17, 1988, I wrote to the Millers explaining that I thought the contract was invalid and that we were prepared to go to court to prevent publication of the book. I also returned the uncashed check for Mrs. Cheever's $337.50 advance. A week later Academy filed suit in Chicago, seeking a declaration that it should be permitted to publish the manuscript immediately, with all sixty-eight stories included. Without waiting for the court's decision, the Millers proceeded to put the book on the fast track for publication. They ordered a first printing of 100,000 copies, announced a September publication date, and developed their own advertising campaign, featuring a full-page photo of John Cheever on the cover of their catalogue and heralding the importance of the book as offering valuable new insights into Cheever the man and the author. Galleys were printed and distributed to the media, including The New York Times, The Washington Post, and The New York Review of Books. Mrs. Cheever received only a table of contents, an introduction, a preface, and a cover letter stating that "these documents are not being sent to you for your approval or disapproval."

On May 16, in an effort to stop publication, we moved for a nationwide preliminary injunction in the U.S. District Court for the Southern District of New York. Academy responded by arranging to auction the paperback rights to the book, without so much as notifying the Cheevers. I informed the six publishers who were to bid on the book that Academy did not have the right to sell it. My attempts for a court order to stop the auction were unsuccessful. It went forward, and Dell won with a bid of $225,000. Mrs. Cheever was upset at having lost the first court battle, but I told her it was of no consequence; there would be no book.

The hearing on the injunction was held before district court judge Gerard Goettel in White Plains, New York, not far from Mrs. Cheever's Ossining home. I called as witnesses several agents and representatives of publishing houses who testified that the vague language of the contract rendered it unenforceable. All the same, the contract could be a problem simply because it existed; Mrs. Cheever had signed it. I did not wish to trust our case entirely to a judge's interpretation of a document so ambiguous. There was a greater issue involved, I felt: the moral right of an author to determine the fate of his own work.

My key witness, therefore, was Robert Gottlieb, the noted editor who worked with Cheever on his 1978 story collection. Gottlieb, at the time editor of The New Yorker, took the stand attired in his trademark outfit of white sneakers, shirt open at the collar, and no jacket. He testified to the critical eye with which Cheever had appraised the stories to be included in that omnibus volume, that Gottlieb had often tried and failed to persuade him of the merit of works the author considered less than distinguished, and that the author had deliberately chosen not to have the stories in question published in previous collections. He addressed the need to protect an author's reputation and warned against publishing an "authorized" version of a book that the author's estate did not wish to authorize. It was compelling testimony but of a clinical, literary nature that did not seem to move the judge; Mrs. Cheever, after all, had signed a contract to publish at least some of these stories.
The hearing promptly turned in our favor, however, when Mary Cheever was called as a witness. Nervous and uncertain before taking the stand, once sworn, she quickly gained her composure, and from the very start she and the judge connected in a profound and unusual way. Mrs. Cheever was a woman of seventy at the time, petite, soft-spoken, and articulate, with an elegant bearing and, we made clear, literary credentials of her own. She held a bachelor's degree from Sarah Lawrence College, she had taught composition and creative writing for ten years at Briarcliff Junior College and for three years at the Rockland Country Day School, and she had published a book of her own poems entitled The Need for Chocolate. For several hours, appearing diminutive on the witness stand in the huge new federal courtroom, she chronicled the sequence of events that had brought her there.

She explained that she had been given to believe that the book would be a slim volume of carefully chosen stories that she herself would select, stories she was certain her husband would have wanted to see in print. She spoke of her devotion to her husband and how she felt herself to be the caretaker of his literary reputation. The publication of this book would be her final service to him.

The emotional impact of courtroom proceedings is too often underplayed. I've always believed that, in many instances, judges make decisions in accordance with their own sense of justice and their private perceptions and then find the legal precedents to support their conclusions. The law is the law, but it is a malleable instrument that rarely fails to bend a degree or two when a witness appears authentic enough to touch the chords of judge or jury. Basing his decision largely on Mrs. Cheever's testimony, Judge Goettel halted publication of the book, pending the outcome of the Millers' suit in Chicago. He concluded that Mrs. Cheever "envisioned a rather modest work containing only a limited number of stories with a small printing. She believed that, as the author who was supposed to deliver a manuscript, she would have control over which works would be included. She was aware that her husband considered his early stories inferior and did not want his literary
reputation sullied by their collected publication."

Then, addressing the validity of the contract directly, he noted, "It is simply unreasonable to conclude that the intent of the publishing agreement was that Mrs. Cheever would license all of the uncollected stories of John Cheever to [Academy] for publication." But he said that the case must first be tried in Chicago, where Academy had filed suit. Finally, looking beyond the contract dispute, he gave our case a boost as it headed toward the Illinois courts. Even if the contract were found to be valid, the judge said, he would be likely to rule against Academy as a matter of copyright law, since the agreement conveyed no specific rights to Academy.

Although the court's granting the injunction to stop publication was a victory of substance, I was not looking forward to a trial in Chicago, where a state court could undo much of Judge Goettel's decision. The proceedings in Illinois also promised to be time-consuming, and Mrs. Cheever, who had proved an impressive witness, was not inclined to make the trip. Furthermore, I cautioned her that the cost of litigation and transporting witnesses from New York to Chicago would be high, and even if we won the case, she might find herself in the ironic position of having to sell her husband's stories to cover expenses. But she was determined to see the case through. The issue involved, she believed, transcended both cost and convenience.
At this point, I was obliged to make a critical decision: whether to insist on bringing the Cheevers-Mary, Ben, and Susan, the author's daughter, who had testified in federal court-to Chicago or to try to have the transcripts of their depositions admitted as evidence. Academy, of course, could have compelled their appearance in court, so the Millers and their attorney also had a say in the matter. I opted to force their hand. They seemed eager to match their live witnesses against our impersonal array of documents, depositions, letters, and motions. It was a mistake.

The Millers and Franklin Dennis were the kind of witnesses on which opposing attorneys could build a reputation. Although they were on their home turf in Chicago and had the support of local journalists as well as the Association of American Publishers and the literary establishment, they chose to shy away from the testimony they offered in New York and concoct new arguments to support their case. Aware that the Cheevers would not be in court to refute their stories, they testified about conversations that the Cheevers said never took place and played fast and loose with the chronology of events. Jordan Miller, clearly ill at ease with the tale he was telling, chain-chewed antacid tablets throughout his entire stay on the stand; Anita seemed to balk at every question put to her under cross-examination; and Dennis, the principal witness for their side, had to be his attorney's worst nightmare. He responded to questions haltingly, in a small, uncertain voice, sounding as though even if he was telling the truth, he wasn't sure he could make you believe him. In a Chicago magazine article otherwise favorable to the Millers, Dan Santow described Dennis this way:

[I]n his ill-fitting navy-blue suit and little-boy side-part haircut, he looks woefully uncomfortable, constantly drinking from his plastic cup of water, wiping his face, squirming in his seat from right to left. He never sits up straight. When the Cheevers' lawyer, Martin Garbus, gets close-and Garbus gets close often-Dennis's voice creaks considerably; he nervously wipes his face with his hand, and he shifts uneasily in his seat. When Garbus points his finger at Dennis-and this, too, he does often and very close to Dennis's nose-the witness is clearly and understandably uncomfortable. . . . Dennis just seems to be wilting up there.

After three days of testimony, the Millers rested their case. We spent one day reading our depositions and Mrs. Cheever's previous trial testimony to the court. Illinois Circuit Court judge Roger J. Kiley, Jr., took just a few weeks to hand down his ruling. Not having heard Mrs. Cheever, he was apparently affected chiefly by the inconsistencies in the testimony of Dennis and Miller. He turned in a decision that narrowly favored our side. Contradicting Judge Goettel, Judge Kiley ruled that the contract was valid but that Mrs. Cheever, as the author of the book, had the right to select which stories should be included. Her contractual obligation would be fulfilled, he said, if she chose ten to fifteen stories covering no less than 140 pages. He described as "inexplicable" Academy's contention that it had the right to all sixty-eight of the uncollected stories but ruled that Academy could include its own introduction and comments by Dennis preceding each published story.

We told the Millers that, under the circumstances, we were prepared to live with the decision in order to end the dispute. But the Millers were not ready to settle the issue on a give-and-get basis. Although Mrs. Cheever agreed in writing to provide them with fifteen stories, they appealed the trial court's decision. That was their second mistake. The appellate court affirmed the lower court's decision. Academy then appealed to the Illinois Supreme Court. This would prove to be their biggest mistake of all.

Not satisfied with the prospect of publishing a slim volume of Cheever stories with their own introduction and comments, the Millers chose to play double-or-nothing, and nothing was what they got. On June 20, 1991, more than three years after the battle was joined, a seven-judge panel ruled that the contract itself was invalid. In a brief, four-page opinion reversing both the trial-court and the appellate-division decisions, Judge James D. Heiple declared that the agreement "lacks the . . . essential terms required for the formation of an enforceable contract." After enumerating the specific provisions that should have been covered in the agreement-the minimum number of stories and who would decide which were to be included, the dates for delivery and publication of the manuscript, the price at which the book would be sold-Judge Heiple concluded: "A contract may be enforced even though some contract terms may be missing or left to be agreed upon. But if the essential terms are so uncertain that there is no basis for deciding whether the agreement has been kept or broken, there is no contract."

Academy briefly considered applying for a rehearing of its last appeal but finally conceded. They resigned themselves to waiting for the inevitable publication of a hefty volume of John Cheever's uncollected stories, which, they were certain, would soon be in bookstores. Throughout the course of the litigation, Academy had contended that the Cheevers' primary motive for trying to back out of the contract was commercial rather than literary. Having discovered a gold mine of material they did not know existed, the reasoning went, the Cheevers were hungry to place the book with a major publisher. The Millers also said they believed the family was trying to keep aspects of John Cheever's past from being made public. They were wrong on both counts; the stories have never been published.

As circumstance had it, Academy Chicago was not the only casualty in the case. The outcome left its scars on the publishing industry as well and damaged my standing with the influential Association of American Publishers. The AAP, a trade group of more than two hundred book publishers, which had submitted an amicus curiae brief in the Illinois Court of Appeals in behalf of the Millers, expressed alarm at the breadth of the court's decision. They noted that the disputed provisions in Academy's contract were "not substantially different . . . from the terms contained in many other publishers' contracts." The final decision on what goes into a book must remain with the publisher, they contended, as is currently provided in all publishing contracts. After wavering a bit, the Authors Guild, representing 6,500 book authors, finally weighed in on the Cheevers' side of the argument, asserting that the author should have the final say on every word in his book.

The dispute left me in the uncomfortable position of opposing the group that fed a large part of my practice. A number of my book-publishing clients were quick to make their feelings known. I had, it seemed to them, built a practice on the fees they had paid me, and now, at a critical turn, I had been instrumental in obtaining a legal decision that worked against them. Not for the first time, I heard myself described, though in much softer terms, as a traitor. My allegiance, however, was never to one side or the other, publisher or author, but rather to the idea that an author's right to control his own work is absolute and includes not only the right to publish but the right not to publish.

A few years later, in 1994, I took a case that some of my critics said violated precisely the principles I espoused in the Cheever case. I represented a publisher in an attempt to have a play published over the objections of the author's estate. There was, however, an essential distinction between the two cases: In this instance I concluded that the executor of the estate was not representing the wishes of the author. The matter was of some concern to the literary community, for the estate in question was that of Samuel Beckett, the Gaelic/French existential playwright who had won the Nobel Prize for literature in 1969.

The play, Eleutheria, was among Beckett's earliest works, written in 1947 just prior to his enigmatic masterpiece, Waiting for Godot. From its inception, Eleutheria had followed a long, circuitous, and often troubled route on its way to publication nearly half a century after its completion. Yet, except for a turn of chance here or there, it might well have preceded Godot into production. Jean Vilar, of the Théâtre Nationale Populaire, had expressed interest in the three-act play as early as March 1947, but he wanted the play cut and woven into one long act. Beckett declined and turned his attention to completing Waiting for Godot. He then asked his live-in companion and future wife, Suzanne Deschevaux-Dumesnil, to circulate the two plays among producers and publishers. The noted French director Roger Blin liked them both. He decided that he should probably produce Eleutheria first because it was more traditional than the darkly foreboding Godot, which Blin said he "frankly did not understand." There were, however, other factors to consider.

"Eleutheria," Blin noted, "had seventeen characters, a divided stage, elaborate props, and complicated lighting. . . . I thought I'd be better off with Godot because there were only four characters and they were bums. They could wear their own clothes if it came to that, and I wouldn't need anything but a spotlight and a bare branch of a tree."

Upon considerations so mundane was experimental theater given its seminal play and its author sent on his way toward the pantheon of Europe's postwar existential elite. Within the next three years, Beckett completed his trilogy of novels, Molloy, Malone Dies, and The Unnamable, and they were prepared for publication in France by Jérôme Lindon's Editions de Minuit. In the United States, Barney Rosset, of the avant-garde Grove Press, agreed to publish translations of all of Beckett's work. His literary future now assured, Beckett turned once again to the theater and began work on a new play, Endgame. The manuscript of Eleutheria was laid away in a trunk and, for the next three decades, largely forgotten.

In the spring of 1986, on the occasion of Beckett's eightieth birthday, he, Rosset, and some mutual friends celebrated over drinks in a Paris bar. Rosset, however, offered up a piece of news that darkened the mood of the festivities. He had been discharged from Grove Press after thirty-three years of building and running the company. During that time, Rosset had been responsible for publishing more than twenty volumes of Beckett's work as well as approving performances of his plays in the United States. The two men had grown very close; some described Rosset as Beckett's spiritual son.

Rosset now spoke of forming his own publishing company, and it came as no surprise that the author was eager to help. He would search his trunk for something that might get Rosset started again. He came up with his first full-length play, Eleu-theria. He inscribed a copy of the play to Rosset and began revising and translating it from French to English. But he soon abandoned the task. Well on in years and in failing health, he found he could not give his attention to a work now nearly forty years old. Instead, not long before his death in 1989, he wrote his final prose piece, Stirrings Still, dedicated it to Rosset, and gave it to him in gratitude for not having insisted on publishing Eleutheria before his revisions were complete.

Rosset, however, never gave up on the idea of publishing Beckett's first play. While possessing literary merits of its own, Eleutheria had the added appeal of foreshadowing themes and attitudes that in the years ahead would become so closely identified with the author. The play, whose title is Greek for "freedom," is a dark comedy about a young writer named Victor Krap (sire, no doubt, to the title character of Krapp's Last Tape) who has decided to spend the rest of his life doing absolutely nothing. To an audience now familiar with the shadows that slip in and out of Beckett's work, the early play could conceivably illuminate a nuance or two of the author's intent. It certainly was a play worth publishing, Rosset thought.

On March 3, 1993, he wrote to Jérôme Lindon, Beckett's literary executor and French publisher, informing him that he planned to publish the work Beckett had bequeathed to him in 1986. Then, together with copublishers John Oakes and Dan Simon, he formed a new company, Foxrock, named for Beckett's birthplace outside Dublin, for the specific purpose of publishing the play. Lindon, however, had reservations. He wrote back saying he thought the play should be published first in French, but not quite yet. "When?" he asked in his letter. "I cannot possibly tell you for the time being." The reply was not good enough for Rosset, who believed Beckett had given him full sway to do with the work as he wished. Now the two most important figures in Beckett's literary life were ready to cross swords, each firm in the conviction that he was acting in his friend's best interests. And indeed, both Lindon and Rosset had legitimate claims to knowing the heart and mind of the author.

Lindon, after all, had been named literary executor of Beckett's estate. He had accepted the Nobel Prize in Beckett's absence at the award ceremonies in Stockholm. He believed that if the playwright had wished to have Eleutheria published or performed, he would have seen to it during his lifetime.

Rosset, for his part, had served as Beckett's dramatic agent and publisher in the United States and had in his possession a manuscript inscribed by the author signifying his approval to have the play published. He believed the work was of great importance, and few men had struggled as valiantly or successfully in behalf of suppressed literary endeavors as had Barney Rosset. It was his Grove Press that had broken new ground in the fifties by publishing the works of Henry Miller and D. H. Lawrence along with dozens of other authors whose books had been banned in the United States until Rosset cleared the way. Now he sensed the irony of abetting the censor if he did not do all he could to bring Eleutheria to public attention.

Rosset asked if I could help mediate the dispute or, failing that, represent him as he published the play. I had worked with him on publishing issues in the past and had represented Beckett ten years earlier in a copyright claim. I decided first to speak with a few people who knew Beckett and could help me assess the author's wishes. Deirdre Bair, a friend of his who had spoken with him at length while writing her prizewinning biography of Beckett, was unambivalent. "Beckett trusted Rosset completely," she said, "and he was very generous to his friends. He would have done everything he could to help Barney if he was in trouble. He had begun translating and revising the play so that Barney could publish it, and only his failing health kept him from completing it. I have no doubt that he would have wanted to see it published."

I also spoke with several French publishers and was growing increasingly skeptical of Lindon's claim that he, and he alone, spoke for the author. Nonetheless, it was a claim that the law entitled him to make. Litigation would be difficult, I knew, and I thought it best that we try to settle the issue outside the courts. I suggested a variety of alternatives to help resolve the dispute, ranging from informal procedures to formal mediation or arbitration to simplified principles of litigation. Lindon rejected them all.

Rosset, growing impatient, decided to force the issue. He arranged for a private reading of the play to be given on September 26, 1994, at the New York Theater Workshop. However, when we arrived at the East Village theater, we found the actors on the street and the door locked against us. Word of a threatened lawsuit had come to the attention of the theater's trustees, and they were not inclined to take the risk in a not-for-profit venture. They asked Rosset to post a $25,000 bond, which he was unable to do. Undeterred, he marched us all the few blocks to his apartment building on Fourth Avenue, converted a loft area into a makeshift theater, and the play was given its reading by thirteen actors before one hundred invited guests seated on wooden folding chairs.

Still, the performance did not go unnoticed. Mel Gussow and Herb Mitgang, both of The New York Times, were in attendance, and in the following day's edition Gussow gave the play a favorable if not rave review, observing, "Philosophical points were made about everyday madness, fathers and sons, and suicide," subjects Beckett explored more fully in later works.

Now the play had penetrated the theater world's mainstream, and some of America's most noted directors and theater owners expressed interest in producing it. Their letters were forwarded to Lindon, but he remained unmoved. In letters to Rosset and his copublishers, he warned that if Eleutheria was published, he would "prosecute not only the publishers but all those . . . who have been accessory to that illicit action."

Such a suit would have introduced the unpleasant prospect of involving us in French criminal and copyright law, which, by every measure, favored the estate's executor. In the United States, the First Amendment often tips the balance in favor of publication. Unless the issue of ownership is clear-cut, there is a tendency to apply constitutional values: Publish the book and let the readers judge the value of the work. Under French law, the executor speaks with a more powerful voice, and since the copyright decisions of one nation are generally honored by others, we chose to move first. At the request of Rosset and Foxrock, I prepared to seek a declaratory judgment in the U.S. District Court in New York, freeing the play to be published. Lindon, however, backed off, and the papers never were filed. Rosset and the publishers then decided to proceed with publication. In order to avert a claim that they were interested primarily in turning a profit, they chose to publish a limited, not-for-sale edition of Eleutheria.

At this point, realizing he could not stop the book, Lindon grudgingly offered his consent. In a letter to Rosset, he wrote, "The one thing I am sure of is that Sam would not have liked us to fight against each other about him in a public lawsuit." Eleutheria, translated by Michael Brodsky, was published by Foxrock, Inc., in a regular edition in May 1995. At about the same time, Lindon published the play in its original French version. It has yet to be produced.

It was some years earlier, during the production of another of his plays, that I first spoke with Beckett about the control of his work. We were trying to prevent an adaptation of his play Endgame from being produced by the American Repertory Theatre (ART) company at the Loeb Drama Center in Cambridge, Massachusetts. The issue here was not who owned the work but the degree of liberty that can be taken in adapting it for the stage. Beckett, who was as meticulous with his directions for staging as he was in writing dialogue, included specific instructions concerning set design, lighting, and the movement of the performers, even prescribing pauses and periods of silence. For Endgame, Beckett described the set as a bare, cell-like room with two small windows. The ART production, directed by JoAnne Akalaitis, offered instead an underground, abandoned subway station layered with trash and occupied only by a gutted subway car. When the change in staging was described to him, Beckett's response was unequivocal. "This has nothing to do with my play," he said. "They can't do this. They have no permission to do this."

The change in set design was not merely cosmetic; it shifted the play's focus, crossing what Edward Albee once described as the "fine line between interpretation and distortion." Like all of Beckett's work, Endgame probed the depths of internal despair, the hopeless resignation of the spirit confronted by an indifferent world, and Beckett's empty room reflected that sense of desolation. A set suggesting a bombed-out bunker after a nuclear holocaust, by contrast, altered the play's dynamics, for it grounded the individual's despair in an external event that was shared by all. It was as if Ahab's quest for Moby Dick were
driven by motives grander than personal revenge. The version of Endgame directed by Akalaitis and produced by ART's artistic director, Robert Brustein, had merits of its own, but it was not Beckett's play.

Brustein described his production as bringing "new values to an extraordinary play." His position was unambiguous: "I revere Mr. Beckett above all living playwrights and would never tolerate any disrespect for his work in my theater," he said. But, he added, "A playwright cannot serve as the designer, director and actor of his own play. He has to collaborate."

The terms of the contract, however, suggested otherwise, for permission to produce the play had been granted on the condition that no changes be made, and ART did not deny making changes. As a matter of contract and copyright law, there appeared to be a clear violation of the agreement. But the dispute raised a broader, more critical issue, which was the right of the playwright to control the production of his work. If the playwright is contractually entitled to limit the changes that can be made in his play, who, then, should be the judge of whether those limits have been exceeded, the director or the playwright?
Beckett was in France at the time, and Rosset and I consulted with him on the phone. Barney described the production of the play, and I explained to Beckett that if we filed suit to prevent its opening, he could be compelled to come to the United States to testify. It was a prospect he found distasteful, but he said he would rely on Rosset's judgment. "If Barney says I should file the suit and come to New York, I will," he said.

On the day the play was to open, December 12, 1984, I filed for an injunction in the U.S. District Court in Boston to stop that night's production. The suit charged violation of contract and copyright law as well as of the federal Lanham Act, which protects authors against the misappropriation of their work. Confronted by the possibility of a public courtroom dispute with Beckett and the likelihood of an aborted opening night, ART agreed to a settlement that was nothing less than extraordinary. The play would open on schedule, but attached to each playbill would be a disclaimer by the author, an unprecedented compromise.

The disclaimer consisted of the first page of the text of Endgame, including the author's detailed stage directions and a message from the playwright, which read: "Any production of Endgame which ignores my stage directions is completely unacceptable to me. My play requires an empty room and two small windows. The American Repertory Theatre production, which dismisses my directions, is a complete parody of the play as conceived by me. Anybody who cares for the work couldn't fail to be disgusted by this." Brustein, in turn, was permitted his own say, in which he stated that ". . . to insist on strict adherence to each parenthesis of the published text not only robs collaborative artists of their respective freedom, but threatens to turn the theatre into waxworks."

The dispute underlined the irony that copyright laws, no matter how scrupulously crafted, contain within them an element of paradox, for they are designed to guarantee the ownership of words and ideas that become the property of an author only when he makes them public. Once in circulation, they are freely cited, adapted, and often quoted at length. They were written, after all, in the hope that they would prove memorable enough to insinuate themselves into the consciousness of those they reached. If, however, a reader is sufficiently enamored of the author's work to make a substantial part of it his own, he will have committed the ultimate copyright infringement; it is called plagiarism and is tantamount to theft.

David Leavitt, a talented young writer, was accused of such an act by the eminent English poet Stephen Spender when Leavitt's third novel, While England Sleeps, was published in 1994. Spender perceived the novel to be little more than a thinly disguised, often salacious version of his 1951 memoir, World Within World, the tale of a doomed homosexual relationship set against the backdrop of the Spanish Civil War. While Leavitt acknowledged using the memoir as a "springboard" for his own story of a love affair between two men, also set in the late thirties, Spender thought he had crossed the bounds that separated inspiration and expropriation.

The eighty-five-year-old poet filed a suit against Leavitt and Viking, the publisher of the book, claiming breach of copyright and arguing that his "moral right" to control his own work had been violated. In its essence, breach of copyright is a charge of plagiarism, which is usually enough to stop publication or distribution of a book. The "moral right" claim is more difficult to define. It was based largely on a new British law, still untested in the courts, that was designed to protect authors from having their work adapted against their will. Its inclusion in the suit was a measure of Spender's outrage, his sense of the covers being peeled back on the most private corners of his life, the intimacies he had so
carefully sheltered now laid bare to public scrutiny.

By the standards of the fifties, World Within World was remarkable for its candor, daring to explore attitudes that were sometimes suggested but rarely proclaimed. Writing of his
relationship with a man called Jimmy, Spender spoke of "friendship," of "paternalistic feelings," of "someone I love." Romantic involvements with men were hinted at but never openly declared and certainly not described in intimate detail. While England Sleeps, by contrast, left little to the imagination. Leavitt provided the reader with vivid, almost clinical descriptions of homosexual lovemaking. It was the explicit nature of these scenes, with Spender a presumed participant, that particularly offended the poet. "I don't see why he should unload all his sexual fantasies onto me in my youth," Spender said. "If he wanted to write about sexual fantasies, he should write about them as being his, not mine."

Given Leavitt's open concession that he had used Spender's memoir as a source, and a subsequent statement that he had considered including an acknowledgment to the poet, the suit was not easy to defend. The whole question of plagiarism is an elusive one, and to complicate matters, British copyright law favored the litigant. The First Amendment gave writers greater leeway in America than they enjoyed in Great Britain. There was more of a recognition here that if you wrote about a mother-son conflict, you were not necessarily stealing from Oedipus Rex. British courts tended to look at the similarities between two works; American courts looked at the differences. As Viking's attorney, I thought it best to
settle the suit rather than enter into a prolonged litigation.

In a good settlement, neither side gets to claim victory, nor do they suffer badly or alone. It could fairly be said that the settlement reached in the Leavitt-Spender dispute hurt neither author. All thirty thousand copies of Leavitt's novel printed for the U.S. market had already been shipped to bookstores, and most of them had been sold. Since the agreement did not require bookstores to return the unsold books, the remaining copies, now considered collectors' items, were expected to move off the shelves quickly. In England, where the novel had been more recently distributed, the books were recalled pending the publication of future editions with the questionable passages deleted.

As for Spender, a poet of the thirties whose reputation had become better known than his work, he enjoyed a brief new wave of recognition. World Within World, out of print for more than a decade, was reissued in the fall of 1994 with an introduction about the Leavitt affair, along with a collection of Spender's poems. "It's ironic, isn't it?" Spender said.
Leavitt wrote his own account of the copyright case in an introduction to the new edition of While England Sleeps. He said that the principal lesson he learned from the experience was: "If you're going to write a historical novel, base it on the life of someone who's dead." Ironically, Spender died several months later.

From the Hardcover edition.

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Table of Contents

Foreword ix
Prologue 3
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
Epilogue 280
Acknowledgments 287
Index 289
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First Chapter


CHAPTER ONE

    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.

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