January 5: The Attorney of Free Speech

Al Bendich, an attorney who in 1957 defended Lawrence Ferlinghetti against obscenity charges for publishing and distributing Allen Ginsberg’s “Howl,” and in 1962 defended Lenny Bruce in his first of four obscenity trials, died on this date in 2015 at age 85. Bendich was only two years out of law school when he wrote the brief for the defense team in the “Howl” trial, which helped convince the trial judge, Clayton W. Horn -- a deeply religious man -- to declare Ginsberg’s work to “have some redeeming social importance” and therefore not to consider it “obscene.” The same judge sat on the bench for the Lenny Bruce trial, but the comedian demanded a trial by jury. “Bruce had this romanticized view of ‘the people,’ ” according to Ronald K.L. Collins, co-author of The Trials of Lenny Bruce (2002). “So Bendich has to do two things if he plans to win this trial. He has to have an array of witnesses . . . to support the idea that certain forms of ribald comedy really further the importance of comedy. He also has to be very skilled in cross-examining the state’s witnesses. But he does one more thing that will prove to be extremely important: He writes jury instructions” -- which Judge Horn used nearly verbatim, and which helped render the not-guilty verdict, the only acquittal that Bruce ever won over the course of his four trials. “If it were not for Al Bendich making the constitutional points that won the ‘Howl’ trial for us, the prosecution of publishers who publish something that could be judged obscene would have gone on and on. But as it was, even though this was only a municipal court, this was a precedent that stood up all these years. It was no longer possible for some narrow-minded local authority to win a case against a book for obscenity.” --Lawrence Ferlinghetti