PIECES OF THE FIRST

 

 

Conceived by

K. Brian Neel

 

Compiled & Arranged by 

K. Brian Neel and the Company

 

 

© 2000, K. Brian Neel

 

 

 

 

[Preshow is courtroom chamber crowd noise. The sound of an old projector starts up. Judge enters followed by Drummond and Brady. Judge raps twice.]

 

DRUMMOND

Your Honor, I wish to call Dr. Amos D. Keller, head of the Department of Zoology at the University of Chicago. 

 

BRADY

Objection

 

DRUMMOND

On what grounds?

 

BRADY

I wish to inquire what possible relevance the testimony of a Zoo-ology professor can have in this trial.

 

DRUMMOND

It has every relevance! My client is on trial for teaching Evolution. Any testimony relating to his alleged infringement of the law must be admitted!

 

BRADY

Irrelevant, immaterial, inadmissible.

 

DRUMMOND

Why? If [my client] were accused of murder, would it be irrelevant to call expert witnesses to examine the weapon? Would you rule out testimony that the so-called murder weapon was incapable of firing a bullet?

 

JUDGE

I fail to grasp the learned counsel's meaning.

 

DRUMMOND

Oh. Your honor, the defense wished to place Dr. Keller on the stand to explain to the gentlemen of the jury exactly what the evolutionary theory is. How can they pass judgement on it if they don't know what it's all about?

 

BRADY

I hold that the very law we are here to enforce excluded such testimony! The people of this state have made it very clear that they do not want this zoo-ological hogwash slobbered around the schoolrooms! And I refuse to allow these agnostic scientists to employ this courtroom as a sounding board, as a platform from which they can shout their heresies into the headlines!

 

JUDGE

(After some thoughtful hesitation)

Colonel Drummond, the court rules that zoology is irrelevant to the case.

 

DRUMMOND

Agnostic scientists! Then I call Dr. Allen Page—Deacon of the Congregational Church—and professor of geology and archeology at Oberlin College.

 

BRADY

Objection.

 

JUDGE

Objection sustained.

 

DRUMMOND

In one breath, does the court deny the existence of zoology, geology and archeology?

 

JUDGE

We do not deny the existence of these sciences: but they do not relate to this point of law.

 

DRUMMOND

I call Walter Aaronson, philosopher, anthropologist, author! One of the most brilliant minds in the world today! Objection, Colonel Brady?

 

BRADY

Objection.

 

DRUMMOND

Your Honor! The Defense has brought to Hillsboro—at great expense and inconvenience—fifteen noted scientists! The great thinkers of our time! Their testimony is basic to the defense of my client. 

 

[Performance Artist enters naked, unbeknownst to the scene.]

 

For it is my intent to show this court that what [my client] spoke quietly one spring afternoon in the Hillsboro High School is no crime! It is incontrovertible as geometry in every enlightened community of minds!

 

[Maria changes the slide to "ROTH V. UNITED STATES, 1957, Mr. Justice Brennan delivered the opinion of the Court." She crosses in the middle of the scene, takes the American flag from the chair and drapes it over her body. There is a flurry in the courtroom.]

 

SPEAKER #1 (Performance Artist)

The protection given speech was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. 

 

SPEAKER #2 (Lenny Bruce)

All ideas having even the slightest redeeming social importance—

 

SPEAKER #3 (Margaret Sanger)

…unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—

 

SPEAKER #4 (Clarance Darrow)

…have the full protection of the guaranties of the First Amendment. 

 

[Judge (Rehnquist) raps twice for order.]

 

CHIEF JUSTICE REHNQUIST

Mr. Uhl.

 

[Lenny Bruce (Uhl) changes slide to "BARNES v. GLEN THEATRE, INC., 1991".]

 

WAYNE E. UHL

Mr. Chief Justice, and may it please the Court. In Indiana under Indiana code, Section 35-45-4-1, a person cannot leave his home naked and walk down the street without—

 

JUSTICE ANTONIN SCALIA

Without being in trouble.

 

UHL

That's correct. He would get in trouble, Your Honor, if he walked into a public place such as a bar or a bookstore without his clothes on. Once inside the bar, he could not walk naked up and down the aisles in the bar, nor could he sit down at the table without his clothes on, nor could he stand up on the bar or on the stage at the front of that public establishment without his clothes on. 

 

SCALIA

He can evidently perform in a play without his clothes on.

 

UHL

Well, our point, Your Honor, is that the plaintiffs say that if he starts dancing when he gets up on that stage or up on that bar, then he can do anything—or anything that can be defined as dancing—then he's privileged under the First Amendment to appear naked. 

 

SCALIA

What about seeing theatre? [Is there] and exception to the nudity law somehow for artistic performances, is that right?

 

UHL

The Indiana Supreme Court has held that the statute does not affect activity which cannot be restricted by the First Amendment. And the term that the court used in that case was "a larger form of expression" So—

 

SCALIA

Which includes theatre but not go-go dancing?

 

UHL

That's correct, Your Honor. 

 

SCALIA

Is it the good-taste clause of the Constitution? How does one draw that line between Salome…

 

JUDGE

Or Pieces of the First.

 

SCALIA

…and the Kitty Kat Lounge? I don't—

 

UHL

The line is drawn the same way the line is drawn anytime conduct is involved, and that is whether or not the conduct communicates. If the conduct communicates, then the conduct is speech. If the conduct does not communicate, then the conduct is not speech.

 

SCALIA

Communicates what? An idea?

 

UHL

Communicates a particularized message or an idea.

 

SCALIA

What about the particularized message and an idea of sensuality?

 

UHL

That could be communicated. However, the plaintiffs in this case did not establish—did not carry their burden of proving that that was the particularized message that they were sending by their dancing.

 

SCALIA

Because they were not good enough dancers?

 

 

 

UHL

No, it didn't have anything to do with the quality of the dance, Your Honor. It had to do with—

 

SCALIA

Well, could a dance communicate that?

 

UHL

Yes, a dance could communicate that.

 

SCALIA

But this one didn't?

 

UHL

These dances did not.

 

SCALIA

Because they were not good enough dancers?

 

UHL

No, Your Honor, it wasn’t the quality of the dancing. Go-go dancing can be good or bad, but in either instance it's [not] speech.

 

JUSTICE BYRON WHITE

Suppose the dancers were clothed and suppose the state of Indiana or a police official attempted to prohibit that performance, a clothed performance, would the First Amendment protect the performer?

 

UHL

No, not these performances in this case.

 

WHITE

Then you're saying it would be permissible to pass a statute prohibiting tap dancing?

 

UHL

Unless tap dancing were shown to be speech under the First Amendment, that's correct.

 

WHITE

Well, but under your view it doesn't convey any particular message so you could prohibit it.

 

UHL

That's correct, Your Honor. 

 

JUSTICE SANDRA O'CONNOR

Could the state prohibit rock music?

 

 

UHL

Your Honor, this court found in the Ward case that rock music is speech under the First Amendment, so no, it could not. But—

 

[Flashback to citing "WARD V. ROCK AGAINST RACISM, 1989."]

 

JUSTICE KENNEDY

Music is one of the oldest forms of human expression. From Plato's discourse in the Republic to the totalitarian state in our own times, rulers have known its capacity to appeal to the intellect and to the emotions, and have censored musical compositions to serve the needs of the state. The Constitution prohibits any like attempts in our own legal order. Music, as a form of expression and communication, is protected under the First Amendment

 

[Back to slide: "BARNES v. GLEN THEATRE, INC., 1991".]

 

O'CONNOR

Well, how is it that music is protected but dance is not?

 

UHL

Music is different—

 

O'CONNOR

Could you explain that?

 

UHL

Music is different from dance in that it is communicative. 

 

O'CONNOR

Do you think some of the rock music played in the Ward case conveyed a message?

 

UHL

An artistic message.

 

O'CONNOR

An artistic message?

 

UHL

An artistic message. Yes, Your Honor. Whereas not all dance conveys an artistic message. Dance can be so broadly defined as to include perhaps what I'm doing here today. Dance can be any—

 

COURT

Song and dance. 

 

[Jerry Lee Lewis "Breathless"
lip sync dance number:]

 

BRUCE…………………….. Now if you love me now please don't tease

If I can hold you then let me squeeze

My heart goes round and round

My love comes a tumblin' down

You leave me

          Aaaahhhh,           breathless, ah

 

JUDGE…………………….. Well I shake all over and you know why

I'm sure it's love honey that's no lie

Cause when you call my name

You know I burn like a wooden flame

You leave me

          Aaaahhhh,      breathless

 

SANGER…………………... Oooohh, baby

ARTIST…...……………….. Wooough crazy

BRUCE…………………….. You're much too much

Honey, I can't love you enough

ARTIST…...……………….. It's all right, hold me tight

SANGER…………………... When you love me, love me right

 

NOBODY………………….. Come on baby now don't be shy

This love was meant for you and I 

Wind, rain, sleet or snow

I'm gonna be where ever you go 

You have left me

JUDGE……………………..           Aaaahhhh,           breathless, ah

 

[Leg dance during piano/guitar solo, then cast returns to original positions as music cuts out.]

 

UHL

Well, not that kind of song and dance. 

 

[Uhl turns on the florescent light, Through the next conversation, White uncovers her breasts, and puts socks over her hands.]

 

UHL

Any movement can be defined as dance. And if the court were to hold that all dance as it's defined there is speech, then the First Amendment would be trivialized to include any kind of movement or motion that expresses some kind of emotion. 

 

 

BRUCE J. ENNIS

Nude dancing is expressive, because performance dance is inherently expressive of emotions and ideas and because nude dancing communicates a particularized message of sensuality and eroticism. 

 

SCALIA

You began by using a term—was it dance performance?

 

ENNIS

Performance dance. By that I mean dance which is intended as a performance in front of an audience, to distinguish that from recreational dance or dancing at home in your own room.

 

SCALIA

Suppose someone wanted to increase business at the car wash or in a bar and they hired a woman and said…

 

[The socks become hand puppets. Scalia does a show.]

 

SCALIA

…now, you sit in this glass case—and this is an adults-only car wash. You sit in this glass case and attract the customers. Is that permitted? 

 

ENNIS

Your Honor, I think it would—if it was intended as expressive activity, if it was performance dance. 

 

SCALIA

Well, Suppose he said, I've heard the arguments in the Supreme Court and you have to dance. And she said, I can't dance. And he said, just wander around when the music starts to play. 

 

ENNIS

Well, Your Honor—

 

SCALIA

I mean, that's the point, isn't it? It's a question of what is performance dance. What is it?

 

ENNIS

In the Encyclopedia Britannica, is where there is an intention to perform in front of an audience through dancing. 

 

SCALIA

It's not nude dancing. It's not dancing. It's nudity, period.

 

[Scalia yanks off the socks and turns off the florescent.]

 

ENNIS

The state has acknowledged its fear that nude dancing is, quote, "likely to inspire patrons to solicit sex from performers or contemplate rape, adultery, licentiousness, prostitution, and crime." The state seems to feel that if nude dancing is artistic, it has one effect on the audience and does not incite the audience to prostitution, rape, or adultery. 

 

[Scalia walks to center stage, dropping the flag to the floor.]

 

REHNQUIST

Respondents are two establishments in South Bend, Indiana, that wish to provide totally nude dancing as entertainment. 

 

[White joins her and 'dresses' her in pasties and a G-string.]

 

They claim that the First Amendment's guarantee of freedom of expression prevents the State of Indiana from enforcing its public indecency law to prevent this form of dancing.

    We grant that the dancers in the establishments involved in this case must wear pasties and a G-string. This does not violate the First Amendment.

We reject their claim.

 

["ROTH V. UNITED STATES, 1957, Mr. Justice Brennan delivered the opinion of the Court" slide.]

 

SPEAKER #1 (Artist)

Implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. 

 

SPEAKER #2 (Bruce)

The test is laid down… 

 

SPEAKER #4 (Darrow)

…namely, whether the material has a substantial tendency…

 

SPEAKER #5 (Judge)

…to deprave…

 

SPEAKER #3 (Sanger)

…or corrupt its readers …

 

SPEAKER #5 (Judge)

…by inciting …

 

SPEAKER #2 (Bruce)

…lascivious thoughts …

 

SPEAKER #4 (Darrow)

…or arousing lustful desires.

 

SPEAKER #3 (Sanger)

Obscene material will perceptibly create …

 

SPEAKER #1 (Artist)

…a clear and present danger …

 

SPEAKER #3 (Sanger)

…of anti-social conduct … 

 

SPEAKER #5 (Judge)

…or will probably induce its recipients to such conduct. 

 

[The flag is pulled up, performers spread out, flag is draped over appellant's table.]

 

ANNOUNCER

Ladies and Gentlemen, Lenny Bruce.

 

LENNY BRUCE

Right now there’s some bullshit with obscenity. There's an obscenity circus that's been going on now for about five years. And I really can't believe that it's not settled.

    You know, the literal view of the law is that what's obscene is dirty screwing and fancy screwing. If a guy can tear off a piece of ass with class, then he's cool; but if the author depicts factory workers who are not experts with stag shows, then it's obscene, which is just nonsense.

 

[Darrow (Marks) changes slide to "MILLER v. CALIFORNIA, 1973"]

 

CHIEF JUSTICE BURGER

This is one of a group of "obscenity-pornography" cases being reviewed by the Court in a re-examination of standards enunciated in earlier cases involving what Mr. Justice Harlan called "the intractable obscenity problem." 

 

LENNY BRUCE

Tract Home Chippy, for example, would be the trite pulp book, Tract Home Chippy. The good book, they've accepted then, is D. H. Lawrence, Lady Chatterley's Lover. Alright. Now it's really absurd. You've got two books. You've got Lady Chatterley's Lover, and we've got here, Tract Home Chippy,

    Now we got two couples in each book. D. H. Lawrence's couple, they're not married, but he knows how to handle the scene. Nothing patently offensive: there's silk sheets, lebesraum - I mean the guy knows how to go about it.

 

BURGER

Appellant conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called "adult" material. Appellant's conviction was specifically based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures; they complained to the police. 

 

LENNY BRUCE

Let's go to Tract Home Chippy. They're factory workers. They're both virgins. I mean, page after page and this guy doesn't know how to do anything. Never did it before. He's ripping the clothes, conveying of semen before the penetration, didn't wear a contraceptive - it was disgusting!

    Let's go back to D. H. Lawrence. This guy can really tear up a piece of ass - the third broad he's on already. I mean this book was really stimulating - you felt like going out, getting abroad...

    That's what it is, it's absurd.

 

BURGER

The brochures advertise four books entitled "Intercourse," "Man-Woman," "Sex Orgies Illustrated," and "An Illustrated History of Pornography," and a film entitled "Marital Intercourse." 

 

MARGARET SANGER

A mutual and satisfied sexual act is of great benefit to the average woman, the magnetism of it is health giving, and acts as a beautifier and tonic.

 

CHIEF JUSTICE BURGER

While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed.

 

LENNY BRUCE

"So, in the opinion of this court, we punish untalented artists."

Which could never be, man.

 

PERFORMANCE ARTIST

I went into a museum but they had taken down all the art. Only the empty frames were left. The guards had nothing to guard. The white walls yellowed. Toilets were locked up in museums because people might think someone peeing is art. Someone might think that pee flushing down that toilet is art.  Someone might think that the act of peeing is a work of art. And the government pays for that pee flushing down that toilet. There were many bladder infections among those who inspected the museum making sure that there was no offensive art. They might lose their jobs. It's a good life when no one thinks that you ever piss or shit.

 

In the empty frames were the reasons why art was confiscated.

Jasper Johns - for desecrating the flag.

Michelangelo - for being a homosexual.

Mary Cassatt - for painting nude children.

Van Gogh - for contributing to psychedelia.

Georgia O'Keeffe - for painting cow skulls (the dairy industry complained).

Picasso - for urinating, apparently, on his sculptures, with the help of his

children, to achieve the desired patina effect.

Edward Hopper - for repressed lust.

Jeff Koons - for offending Michael Jackson.

 

BURTON MARKS

The fact that these particular pictures are drawings—artistic—seems to be irrelevant. The fact that some of them are copies of frescoes which come from Indian art and Japanese art also seems to be irrelevant, since it now becomes the job of the jury to determine whether or not they are obscene or not obscene. And also the job, apparently, of some experts to determine whether the average person looking at the pictures, the average non-consenting adult, upon seeing these pictures, will have an immediate appeal to his prurient interest…

 

LENNY BRUCE

  1. 1. Prurient: Inordinately interested in matters of sex; lascivious. 

  2. 2. a. Characterized by an inordinate interest in sex: prurient thoughts. b. Arousing or appealing to an inordinate interest in sex: prurient literature.

Prurient interest. That's it. To the immigrant: If, after the show, and taken as a whole, there's no redeeming social factor to this show, but if the show does appeal to your prurient interest, if you're sitting there with a hard-on after I get off, then I should get busted. That's the way it is, that's the way it goes.

 

MARKS

I think that in taking the history of this case, if you please, it illustrates the futility of making a decision by this Court in the ordinary manner as to whether or not, for instance, contemporary standards are national or local, because it really doesn’t matter. The judges simply will not pay any attention to the cases. They do not rule in obscenity cases. It is a very visceral reaction. You get a shock value on obscenity cases. They, in my experience, do not function. 

 

LENNY BRUCE

You know, I got to do some reading, and I found out that the

Catholic Church had the best, clearest definition for obscenity. It makes the Supreme Court decision vague. Dig:

   "For the matter to be obscene the intrinsic bent of the work

   must be to the prurient interest."

Now that's where the Supreme Court stays. There it gets vague. But dig the Catholic Church. It goes further:

   "To put it more concretely, the genital apparatus must be in a

   position to unite sexually."

Now you want a clearer definition than that? That's beautiful. How can anyone say that's vague and indefinite? And dig, they really got cute with it:

   "And the words `vulgar' and `disgusting' shall not apply,

   since human liberties are at stake."

Alright. Now after that, they say that,

   "the test shall not apply if the person is sluggish."

I really like that. Cracked me up.

 

CHIEF JUSTICE BURGER

Are you suggesting something like the old-fashioned board of censorship, to take a look at it first and advise the publisher?

 

[Slide show: “Family Limitation, by Margaret Sanger, 1917”]

 

SANGER

Every woman who is desirous of preventing conception will follow this advice: Don’t wait to see if you do not menstruate (monthly sickness) but make it your duty to see that you do. If you are due to be “sick” on the eighth of August, do not wait until the eighth to see, but begin as early as the fourth to take a good laxative for the bowels, and continue this each night until the eighth

 

If there is the slightest possibility that the male fluid has entered the vagina, take on these same nights before retiring, five or ten grains of quinine, with a hot drink.

 

MARKS

I suggest to the Court that the answer to the dilemma which is posed—that the paradox, the irreconcilable conflict—is that this Court set up a series of rules by which courts must act in obscenity cases.

A process whereby, if there is probable cause to believe the material may be obscene, it is seized. It’s brought into court. One-day hearing. Expert testimony. Two days to make a decision. 

 

SANGER

It is believed that conception cannot take place if the woman lies upon her left side at the time of the act. It makes no difference which side she lies upon; she can become pregnant if the semen is not prevented from entering the womb.

Perhaps the commonest preventive is “coitus interrupts,” or withdrawal of the penis from the vagina shortly before the action of the semen. This is a perfectly safe method; and it is not considered so dangerous to the man as some authorities have formerly viewed it, but it requires a man of the strongest will power. 

 

COURT

Well, do you think Roth should be overruled? 

 

MARKS

I think it should be overruled. I think that the First Amendment should bar criminal prosecutions in the absence of direct knowledge—I can’t; I don’t know.

 

SANGER

The most important part which every woman should learn in the methods of preventing conception, is to cleanse herself thoroughly by means of the vaginal douche.

 

[Slide of a drawing of a douche bag.]

 

SANGER

After the sexual act go as quickly as possible to the bath room and prepare a douche. Lie down upon the back in the bath tub. Hang the filled douche bag high over the tub, and let the water flow freely into the vagina, to wash out the male sperm. 

 

[Slide of a drawing of a cross section of a finger up the vagina.]

 

SANGER

Do not be afraid to assist the cleansing by introducing the first finger with the tube and washing out the semen from the folds of the membrane. It is said, that the French woman are the most thorough douchers in the world. 

 

[Artist (Capizzi) opens a box with two walkie talkies. She sets one on the table and walks off stage, saying lines into the handset.]

 

MICHAEL CAPIZZI

Honorable Chief Justice and may it please the Court. Appellant suggests that each judge, from the trial level through each level of review, should re-determine the issue using the same test, the national test. This is practically impossible. 

 

JUSTICE WILLIAM DOUGLAS

What you’re saying, and I gather it is, it would be also very difficult for a publisher, an author, to know when he had crossed the line. 

 

CAPIZZI

I don’t think it’s that difficult for a publisher to know when he’s crossed the line. 

 

LENNY BRUCE

…it's "Decent-Indecent" - you know, "What is Good?" And Good is God is Danny Thomas. So, I want to show you some pictures of tramps.

 

[Holding up a pin-up nudie photo.]

 

These are bums. This is an indecent woman. 

    Ohhhh, no! Are you kidding? Indecent? How can that sweet, pink-nippled, blue-eyed, goyisha punim be indecent? Are you kidding? Indecent? God damn Paul Malloy, man. I love that lady. And she's religious - see the beads? That's how the sisters look before they take the vows. They take one last picture, and that's it.

 

[Many tin wind-up toys begin crawling on stage. Judge throws some parachute soldiers in the air. Artist continues to talk via walkie talkie from off stage]

 

CAPIZZI

Adoption of a national standard would have the result of making us all one, making us all little tin soldiers out of a mold, and all receiving the same material, the same standard, and would not provide for difference from on community to another. 

 

SANGER

Another form of prevention is the pessary. 

 

[Slide of a line drawing
of a pessary.]

 

SANGER

In my estimation a well fitted pessary is the surest method of absolutely preventing conception. The trouble is women are afraid of their own bodies, and are of course ignorant of their physical construction. They are silly in thinking the pessary can go up too far, or that it could get lost, etc., etc. The only thing it can do is to come out. And even that will give warning by the discomfort of the bulky feeling it causes. 

 

[Artist is back on stage playing with two dolls in antique clothing. Through the course of dialogue, she undresses them and dresses them in contemporary clothing.]

 

CHIEF JUSTICE BURGER

Well, are you suggesting that a standard would become outdated and therefore not contemporary after the lapse of two or three years; is that what you think contemporary means?

 

CAPIZZI

I think it must be a standard, yes, Mr. Chief Justice, that exists at the same time as the distribution or the time of the crime. I think it has to exist in tune with our particular times; it’s not a community standard that existed, say, 1850 or 1791, because of the term “contemporary.” Thus we have—

 

SANGER

…the condom or rubber “cot.”

 

[Slide of a real penis sheathed in a condom.]

 

SANGER

These are made of soft tissues which envelope the male organ completely and serve to catch the semen at the time of the act. 

 

[Artist still with the dolls.]

 

BURGER

I get it that you’re suggesting that this has to be kept up to date on a month-by-month basis, to see what people are thinking just lately. 

 

CAPIZZI

I think that is true, Mr. Chief Justice, that because of—

 

BURGER

Then you’ve set out an impossible task for yourself, haven’t you?

 

CAPIZZI

We have procedure for punishing utterances in one location and not in another; “Fire!” 

 

[Begins screaming fire over and over, everyone runs for the door in panic, some getting fire extinguishers, etc. It lulls back into order as Artist continues.]

 

CAPIZZI

“Fire!”  in a crowded theatre is punishable, and in an open field it’s not. The words are the same; it’s the location that constitutes a clear and present danger, and maybe that’s what we’re saying in this case: if one community can consider a matter which violates its standard for limits of candor, and yet another community really wouldn’t so consider it.

 

[Judge raps the gavel. Light rises behind the screen as two figures act out lovely and sexually explicit silhouettes during Burger's judgement.]

 

BURGER

We emphasize that it is not [the Supreme Court’s] function to propose regulatory schemes for the States. It is possible, however, to give a few plain examples of what a state statute could define for regulation: 

     (a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. 

     (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

     It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.

[Lenny crosses to change slide to "U.S. v. ONE BOOK CALLED ULYSSES, 1933"]

 

LENNY BRUCE

In 1933 when a judge, when Ulysses tried to get in the country, you dig. And the customs and tariff people said, “Uh uh, you can’t. Can’t come in the country. It’s obscene.” 

 

[He parts the screen to show…]

 

THE HONOURABLE MRS MERVYN TALBOYS

In amazon costume, hard hat, jackboots cockspurred, vermilion waistcoat, fawn musketeer gauntlets with braided drums, long train held up and hunting crop with which she strikes her welt constantly. Also me. Because  he saw me on the polo ground of the Phoenix park at the match All Ireland versus the Rest of Ireland. My eyes, I know, shone divinely as I watched Captain Slogger Dennehy of the Inniskillings win the final chukkar on his darling cob Centaur. This plebeian Don Juan observed me from behind a hackney car and sent me in double envelopes an obscene photograph, such as are sold after dark on Paris boulevards, insulting to any lady. I have it still. It represents a partially nude senorita, frail and lovely (his wife, as he solemnly assured me, taken by him from nature), practicing illicit intercourse with a muscular torero, evidently a blackguard. He urged me to do likewise, to misbehave, to sin with officers of the garrison. He implored  me to soil his letter in an unspeakable manner, to chastise him as he richly deserves, to bestride and ride him, to give him a most vicious horsewhipping.

 

LENNY BRUCE

So these people said, no, we want the book to come in and we want to knock off the injunction and move forward. And the judge said, O.K. I’m going to read the book. But I’m not going to apply the Hickman rule any more. The Hickman rule says that we should judge the book by the part, the portion of it, to the guy who gets hornyest quickest. The most corruptible mind in the community. I think, said this judge, we should apply the average man, the reasonable man, the man with the normal average sex instincts. The man with the normal average sex instincts, to that cat. Contemporary, to his average age. His society, that’s how we’ll test it. So any judge now has to apply that rule. That was cool. 

 

[Judge speaks as he climbs off his perch.]

 

HONORABLE JOHN M. WOOLSEY

I have read "Ulysses" once in its entirety and I have read those passages of which the Government particularly complains several times. In fact, for many weeks, my spare time has been devoted to the consideration of the decision which my duty would require me to make in this matter. 

"Ulysses" is not an easy book to read or to understand. The study of "Ulysses" is, therefore, a heavy task. 

 

[He becomes Bloom in the book shop.]

 

SHOPKEEPER

Mr Bloom turned over idly pages of The Awful Disclosures of Maria Monk, then of Aristotle's Masterpiece

 

BLOOM

Crooked botched print. Plates: infants cuddled in a ball in bloodred wombs like livers of slaughtered cows. Lots of them like that at this moment all over the world. All butting with their skulls to get out of it. Child born every minute somewhere.

 

SHOPKEEPER

He laid both books aside and glanced at the third:

 

BLOOM

Tales of the Ghetto by Leopold von Sacher Masoch. That I had, pushing it by.

 

SHOPKEEPER

(The shopman let two volumes fall on the counter.)

Them are two good ones, (he said)

Onions of his breath came across the counter out of his ruined mouth. He bent to make a bundle of the other books, hugged them against his unbuttoned waistcoat and bore them off behind the dingy curtain.

 

BLOOM

Mr Bloom, alone, looked at the titles. Fair Tyrants by James Lovebirch. Know the kind that is. Had it?

He opened it. Thought so.

He read the other title: Sweets of Sin. Let us see.

  He read where his finger opened.

 

WOMAN

--All the dollarbills her husband gave her were spent in the stores on wondrous gowns and costliest frillies. For him! For Raoul!

 

 

BLOOM

Yes. This. Here. Try.

 

WOMAN

--Her mouth glued on his in a luscious voluptuous kiss while his hands felt for the opulent curves inside her déshabillé.

 

BLOOM

Yes. Take this. The end.

 

WOMAN

--You are late, he spoke hoarsely, eying her with a suspicious glare. The beautiful woman threw off her sabletrimmed wrap, displaying her queenly shoulders and heaving embonpoint. An imperceptible smile played round her perfect lips as she turned to him calmly.

 

BLOOM

Mr Bloom read again:

 

WOMAN

The beautiful woman...

 

BLOOM

Warmth showered gently over him, cowing his flesh. Flesh yielded amply amid rumpled clothes: whites of eyes swooning up. His nostrils arched themselves for prey. 

Melting breast ointments… 

 

WOMAN

…for him! for Raoul!. 

 

BLOOM

Armpits' oniony sweat. Fishgluey slime…

 

WOMAN

…her heaving embonpoint!. 

 

BLOOM

Feel! Press! Chrished! 

 

WOMAN

Sulphur dung of lions!

 

BLOOM

Young! Young!

 

SHOPKEEPER

Phlegmy coughs shook the air of the bookshop, bulging out the dingy curtains. The shopman's uncombed grey head came out and his unshaven reddened face, coughing. He raked his throat rudely, puked phlegm on the floor. He put his boot on what he had spat, wiping his sole along it, and bent, showing a rawskinned crown, scantily haired.

 

BLOOM

Mr Bloom beheld it.

(Mastering his troubled breath, he said,)

--I'll take this one.

 

SHOPKEEPER

--Sweets of Sin, (he said, tapping on it.) That's a good one.

[Judge cuts from scene and delivers the judgement.]

 

WOOLSEY

The reputation of "Ulysses" in the literary world warranted my taking such time as was necessary to enable me to satisfy myself as to the intent with which the book was written. In spite of its unusual frankness, I do not detect anywhere the leer of the sensualist. I hold, therefore, that it is not pornographic.  

 

LENNY BRUCE

Now he goes. What’s happened here is that there are many works of art that may get people horny. 

 

[Slide: "INHERIT THE WIND, 1955"]

 

DRUMMOND

It is my intent to show this court that what [my client] spoke quietly one spring afternoon is no crime! It is incontrovertible as geometry in every enlightened community of minds!

 

JUDGE

In this community, Colonel Drummond—and in this sovereign state—exactly the opposite is the case. The language of the law is clear; we do not need experts to question the validity of a law that is already on the books.

 

DRUMMOND

Well, what do you need? A gallows to hang him from?

 

JUDGE

That remark is an insult to this entire community.

 

DRUMMOND

And this community is an insult to the world! 

 

[There is a buzz in the courtroom.]

 

DRUMMOND

Your honor, I request permission to withdraw from this case. 

 

JUDGE

(Rapping for order) Colonel Drummond, what reasons can you possibly have?

 

DRUMMOND

Well, there are two hundred of them. And if that's not enough, there's one more. I think my client has already been found guilty. 

 

BRADY

Is Mr. Drummond saying that this expression of an honest emotion will in any way influence the court's impartial administration of the law?

 

DRUMMOND

I say that you cannot administer a wicked law impartially, you can only destroy, you can only punish. And I warn you that a wicked law, like cholera, destroys everyone it touches. It's upholders as well as its defyers.

 

JUDGE

Mr. Darrow…

 

["STATE v. SCOPES, 1925" slide]

 

CLARANCE DARROW

If today you can take a thing like evolution and make it a crime to teach it in the public school, tomorrow you can make it a crime to teach it in the private schools. At the next session you may ban books and the newspapers. Soon you may set Catholic against Protestant and Protestant against Protestant, and try to foist your own religion upon the minds of men. If you can do one you can do the other. Ignorance and fanaticism is ever busy and needs feeding. Always it is feeding and gloating for more. After while, your honor, it is the setting of man against man and creed against creed until with flying banners and beating drums we are marching backward to the glorious ages of the sixteenth century when bigots lighted fagots to burn the men who dared to bring any intelligence and enlightenment and culture to the human mind.

 

COURT

I hope that counsel does not mean to imply that this court is bigoted. 

 

DARROW

Well your honor has the right to hope.

 

COURT

I have the right to do more than that. 

 

 

DARROW

You have the power to do more than that.

 

COURT

And I exercise that power. Mr. Darrow, I order you to show cause tomorrow morning at ten o'clock why you should not be held in contempt of this court. In the mean while I order that you be held in custody of the bailiff. Bail is fixed at two thousand dollars.

 

DARROW

Two thousand dol… why don't you make it four thousand?

 

COURT

It's four, Mr. Darrow. 

 

[Court raps for punctuation. Darrow exits.]

 

COURT

Court will recess for ten minutes.

 

[Sanger raps twice more. Bernstein's 'TheMan with the Golden Arm" plays. The cast remains on stage through the first part of intermission, chatting, drinking coffee, riffling through papers, etc. Eventually they clear the stage.]

 

ACT II

 

[Slide: “HOUSE ON UN-AMERICAN ACTIVITIES, 1947."]

 

STRIPLING 1

The next witness, Mr. Chairman, is Mr. Adrian Scott. 

 

CHAIRMAN

Adrian Scott. Raise your right hand, please. You do solemnly swear the testimony you are about to give is the truth, the whole truth, and nothing but the truth, so help you God? 

 

SCOTT

I do. 

 

STRIPLING 2

What is your occupation? 

 

SCOTT

I am a producer. 

 

STRIPLING 1

How long have you been a producer? 

 

SCOTT

I believe it is a little over 2 years. 

 

STRIPLING 3

Are you here before the committee in response to a subpoena served upon you on September 19?

 

SCOTT

I am. 

 

STRIPLING 2

Do you have a statement, Mr. Scott? 

 

SCOTT

I do have a statement which I would like to read. I believe the statement is pertinent. It deals with "Crossfire" and anti-Semitism. 

 

CHAIRMAN

Just a minute. We are trying to read the statement. 

 

SCOTT

Thank you. 

 

CHAIRMAN

It is hard to read the statement and listen to you at the same time. 

 

[They gather to read the statement, making barnyard noises.]

 

CHAIRMAN

This may not be the worst statement we have received, but it is almost the worst. 

 

SCOTT

May I disagree with the chairman, please? 

 

CHAIRMAN

Therefore, it is clearly out of order, not pertinent at all, hasn't anything to do with the inquiry, and the Chair will rule that the statement not be read. 

 

 

 

STRIPLING 1

Mr. Scott, are you a member of any guild, either the Screen Directors Guild or the Screen Writers Guild? 

 

SCOTT

I don't think that is a proper question. 

 

STRIPLING 3

Were you ever a member of the Screen Writers Guild? 

 

SCOTT

Mr. Stripling, I repeat, I don't think that is a proper question. 

 

STRIPLING 2

Are you now or have you ever been a member of the Communist Party? 

 

SCOTT

(After a pause.)

May I answer the first question, Mr. Stripling? 

 

STRIPLING 3

You said it wasn't a proper question.

 

SCOTT

I will see if I can answer it properly. 

 

ALL

You said it wasn't a proper question. 

 

SCOTT

I believe it is a question which invades my rights as a citizen. I do not believe it is proper for this committee to inquire into my personal relationships, my private relationships, my public relationships. 

 

CHAIRMAN

Then you refuse to answer the question? 

 

SCOTT

The committee has no right to inquire into what I think, with whom I associate. 

 

STRIPLING 1

We are not inquiring into what you think, Mr. Scott. Mr. Scott, we would like to know whether you were ever a member of the Screen Writers Guild. 

 

SCOTT

I believe I have answered your question. 

 

 

CHAIRMAN

Were you ever a member?

 

SCOTT

My answer still stands. 

 

ALL

Are you a member? 

 

SCOTT

I believe I have answered the question. Would you like me to answer it in the way I did before? 

 

CHAIRMAN

From your answer, I must be terribly dumb, but from your answer I can't tell whether you are a member or not. 

 

SCOTT

Mr. Thomas, I don't agree with you. I don't think you are. I have answered the question the best way I can. 

 

CHAIRMAN

Mr. Vail, can you tell whether he is a member or not? 

 

VAIL

No; I cannot. 

 

CHAIRMAN

Mr. McDowell, can you tell? 

 

McDOWELL

No. 

 

CHAIRMAN

I just can't tell whether you are a member. 

 

SCOTT

 I am very sorry. 

 

STRIPLING 2

Mr. Scott, could you tell the committee whether or not you are now or have ever been a member of the Communist Party? 

 

SCOTT

Mr. Stripling, the question of Communism is in no way related to this inquiry, which is an attempt… 

 

[Chairman raps the gavel over and over, eventually drowning out all words. Everyone eventually speaks at once.]

 

SCOTT

…to get control of the screen and to invade the basic rights of Americans. That question is designed to inquire into my personal and private life. 

 

STRIPLING 1

All right, the witness is excused. 

 

SCOTT

I don't think it is pertinent to this--I don't think it is a proper question either. 

 

STRIPLING 3

The Chair would like to announce that Adrian Scott is cited for contempt and that appropriate action will be taken immediately. 

 

SCOTT

I believe that question also invades my rights as a citizen. I believe it also invades the first amendment. I believe that I could not engage in any conspiracy with you to invade the first amendment. 

 

[The court has turned it's back to Scott, who becomes Sanger again. The court files off into the wings.] 

 

MARGARET SANGER

My sister went to jail first, and went on a hunger strike. Ethel won a pardon, and I went to jail. I come to you from a crowded courtroom, from a vortex of persecution. I come not from the stake of Salem where women were tried for blasphemy, but from the shadow of Blackwell's Island where women are tortured for obscenity. 

 

[The florescent is on again, as well as three others below the tables.]

 

PERFORMANCE ARTIST

Well I saw a blind Judge

and he said: I know who you are

and I said: Who?

And he said: You're a closed circuit, baby.

He said: The world is divided into two kinds of things.

There's luck, and there's the law.

There's a knock on wood that says: IT MIGHT.

And there's the long arm of the law that says: IT'S RIGHT.

And it's a tricky balancing act between the two because

both are equally true.

'Cause might makes right

and anything could happen.  Che sara sara.  Am I right?

 

Who? Do. Who? Do.

Who do you love?

 

[Darrow and Bryan have made their way center stage in the dim light. Slide: “STATE v. SCOPES, 1925.” Darrow blindfolds Bryan.] 

 

DARROW

You have given considerable study to the Bible, haven't you, Mr. Bryan? 

 

BRYAN

Yes, I have; I have studied the Bible for about fifty years, or sometime more than that, but, of course, I have studied it more as I have become older than when I was but a boy. 

 

DARROW

You claim that everything in the Bible should be literally interpreted? 

 

BRYAN

I believe everything in the Bible should be accepted as it is given there: 

some of the Bible is given illustratively. For instance: "Ye are the salt of the earth." I would not insist that man was actually salt, or that he had flesh of salt, but it is used in the sense of salt as saving God's people. 

 

DARROW

But when you read that Jonah swallowed the whale--or that the whale swallowed Jonah—excuse me please—how do you literally interpret that? 

 

[Bryan confidently goes off on his own.]

 

BRYAN

When I read that a big fish swallowed Jonah—it does not say whale. 

 

[Bryan trips on the chair.]

 

DARROW

Actually it says a "great fish."

 

[Darrow helps him up, leads him to a table.]

 

BRYAN

I believe it, and I believe in a God who can make a whale and can make a man and make both what He pleases. 

 

DARROW

Now, you say, the fish swallowed Jonah, and he there remained how long—three days—and then he spewed him upon the land. You believe that the great fish was made to swallow Jonah? 

 

BRYAN

I am not prepared to say that; the Bible merely says it was done. 

 

DARROW

You don't know whether it was the ordinary run of fish, or made for that purpose? 

 

BRYAN

You may guess; you evolutionists guess..... 

 

DARROW

You are not prepared to say whether that fish was made especially to swallow a man or not? 

 

[Bryan stands up on table.]

 

BRYAN

The Bible doesn't say, so I am not prepared to say. 

 

DARROW

But do you believe He made them--that He made such a fish and that it was big enough to swallow Jonah? 

 

[Bryan walks to the edge.]

 

BRYAN

Yes, sir. Let me add: One miracle is just as easy to believe as another 

 

DARROW

Just as hard? 

 

[Darrow stops him from stepping off with his words.]

 

BRYAN

It is hard to believe for you, but easy for me. A miracle is a thing performed beyond what man can perform. When you get within the realm of miracles; and it is just as easy to believe the miracle of Jonah as any other miracle in the Bible. 

 

[Darrow has gotten a chair for him to step down.]

 

 

DARROW

Perfectly easy to believe that Jonah swallowed the whale? 

 

BRYAN

If the Bible said so; the Bible doesn't make as extreme statements as evolutionists do.... 

 

[Darrow sits him in the chair.]

 

DARROW

Do you believe that the first woman was Eve? 

 

BRYAN

Yes. 

 

DARROW

Do you believe she was literally made out of Adams's rib? 

 

BRYAN

I do. 

 

DARROW

Did you ever discover where Cain got his wife? 

 

BRYAN

No, sir; I leave the agnostics to hunt for her. 

 

[Darrow tries to take the blindfold off, Bryan stops him.]

 

DARROW

You have never found out? 

 

BRYAN

I have never tried to find 

 

DARROW

You have never tried to find? 

 

BRYAN

No. 

 

DARROW

The Bible says he got one, doesn't it? 

 

[Darrow rips off the blindfold.]

 

DARROW

Were there other people on the earth at that time? 

 

BRYAN

I cannot say. 

 

DARROW

You cannot say. Did that ever enter your consideration? 

 

BRYAN

Never bothered me. 

 

DARROW

There were no others recorded, but Cain got a wife. 

 

BRYAN

That is what the Bible says. 

 

DARROW

Where she came from you do not know. All right. 

 

[Slide: “THE LORD OF THE FLIES, by William Golding” Five minute reenactment.]

 

[An air raid siren shrieks, lights flash. Cast hides under the appellee table. slide: “CHAPLINSKY v. NEW HAMPSHIRE, 1942”.]

 

MR. JUSTICE MURPHY(VOICE OVER)

It is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

 

[Bruce emerges from under the table and takes stage.]

 

LENNY BRUCE

Are there any niggers here tonight? I know that one nigger who works here, I see him back there. Oh, there's two niggers, customers, and, ah, aha! Between those two niggers sits one kike - man, thank God for the kike!

Uh, two kikes. That's two kikes, and three niggers, and one spic. One spic - two, three spics. One mick. One mick, one spic, one hick, thick, funky, spunky boogey. And there's another kike. Three kikes. Three kikes, one guinea, one greaseball. Thee greaseballs, two guineas. Two guineas, one hunky funky lace-curtain Irish mick. That mick spic hunky funky boogey.

Two guineas plus three greaseballs and four boogies makes usually three spics. Minus two Yid spic Polack funky spunky Polacks.

AUCYIONEER: Five more niggers! Five more niggers!

GAMBLER:I pass with six niggers and eight micks and four spics.

The point? That the word's suppression gives it the power, the violence, the viciousness, If President Kennedy got on television and said, "Tonight I'd like to introduce the niggers in my cabinet, "and he yelled "niggerniggerniggerniggerniggerniggernigger" at every nigger he saw, "boogeyboogeyboogeyboogeyboogey, niggerniggerniggernigger" till nigger didn't mean anything any more, till nigger lost its meaning - you'd never make any four-year-old nigger cry when he came home from school.

 

SANGER

A woman's duty is to look the whole world in the face with a go to hell look in the eyes, to have an ideal: to speak and act in defiance of convention.

 

[Slide: “COHEN v. CALIFORNIA, 1971”]

 

MELVILLE B. NIMMER

Mr. Chief Justice, and may it please the Court. What this young man did was to walk through a courthouse corridor in Los Angeles County, on his way to a courtroom…. While walking through that corridor, he was wearing a jacket on which were inscribed the words "Fuck the Draft."

It is terribly important that this Court make clear the distinction that "dissent" by its very nature involves a right to be "offensive." Non-offensive dissent is almost a contradiction in terms. Because if it's non-offensive, it means you agree with it; but, on the other hand, violent dissent is something quite different. 

 

JUSTICE BYRON WHITE

Would it be your position that your client could have—would have had a First Amendment right to say these words orally, face-to-face, to any person in the hall outside the courtroom?

 

NIMMER

If you are suggesting a distinction based upon the "fighting words" concept—

 

WHITE

I'm not suggesting anything. I just asked the question. Would your position be the same?

 

NIMMER

Yes, if you used these precise words, namely, relating to the draft—

 

WHITE

Yes. To any person, face-to-face, in the hallway. Do you think he has a First Amendment right to do that?

 

NIMMER

Yes, I do, Your Honor.

 

WHITE

And if he didn’t, there might be some trouble? You might have some trouble in this case? 

 

NIMMER

Uh, I don't, offhand, see a viable distinction between the written and the oral, yes. 

 

WHITE

Yes.

 

NIMMER

This is an ordinary free—exercise, in freedom of expression. Certainly, one is not limited, in one's freedom of expression, to expressing—

 

JUSTICE THURGOOD MARSHALL (SANGER)

Well, could he have stood in the court hallways and yelled those words?

 

NIMMER (DARROW)

Certainly not. 

 

NIMMER (JUDGE)

That would have been highly improper, Your Honor. 

 

MARSHALL (ARTIST)

Well, it says that he had it "emblazoned on his jacket." We can't tell whether that's loud, or what, can we?

 

NIMMER (JUDGE)

Well, Your Honor, it was on his jacket…

 

NIMMER (DARROW)

…which meant that a person, if he wishes to, could see it on his jacket. 

 

NIMMER (BRUCE)

But a person was not forced to continue to observe that, as in terms of a loud noise where one can't help but hear it.

 

MARSHALL (ARTIST)

Does it mean that somebody walking up the hall, directly behind him, couldn't help from seeing it?

 

 

NIMMER (BRUCE)

For the moment, but—

 

MARSHALL (SANGER)

I mean, obviously…

 

NIMMER (JUDGE)

(Holding up a sign that says:) …that's why he did it.

 

NIMMER (DARROW)

Yes, Your Honor.

 

MARSHALL (SANGER)

(Holding up a sign that says:) He didn't want people to see it?

 

NIMMER

No, I'm certainly not sating that, at all. Quite definitely he did want to pass along that message.

 

[Bruce escapes the table and makes a break for it. Court and Stewart corner him.]

 

COURT

There was "offensive" conduct?

 

SAUER

Correct. "Conduct" by displaying the—

The conduct is wearing the jacket, displaying the sign.

 

JUSTICE POTTER STEWART

Just displaying the words? That's all the conduct there is, isn't it?

COURT

The "Conduct" was what?

 

 

SAUER

Yes. Correct, if the man had "yelled" the word, Mr Justice Stewart. 

—by wearing the jacket, and walking 

in the corridor.

That part of the statute is not before us, but it says if he "yells it in a loud and boisterous manner"—

 

STEWART

Well, we're not talking about decibels here, at all.

 

COURT

Well, wearing the—was it—the 

"conduct" was, precisely, what?

 

SAUER

Displaying the sign on the jacket. 

By the fact that he was walking with 

the sign displayed on his jacket.

 

COURT

Well, the "walking" wasn't offensive 

conduct? Just the "walking," was it?

 

SAUER

Walking with the sign. Merely 

"walking," no.

 

COURT

No. And, so, what was the "conduct"?

 

SAUER

Displaying the sign.

 

[Stewart points to a sign on Sanger's back that says "FUCK THE DRAFT."] 

 

STEWART

This is a "displaying of message," and that's the only conduct involved, isn't it"

COURT

"Displaying"?

 

SAUER

Yes. His conduct of displaying the sign.

 

COURT

The words?

 

SAUER

Individuals were a captive audience, with the words foisted upon them. They could not avoid it, other than to close their eyes. 

 

[Stewart pastes a sign on Sanger's back that says "NUTS TO THE DRAFT."] 

 

 

STEWART

If these words had been "nuts to the draft," would this case have been here?

 

SAUER

No, I don’t—I do not believe so

 

 

COURT

The jacket?

 

SAUER

Correct. That is our contention.

 

COURT

The display of the words?

 

SAUER

Correct.

STEWART

Is everyone in Los Angeles walking down the street who might use that word, subject to being arrested?

 

SAUER

If they were "displaying" the word, we would consider that to be offensive conduct.

 

MARSHALL

Have you got jails big enough?

 

SAUER

I would say that these words would be offensive to the average man. 

 

MARSHALL

You mean the one word, don't you? Suppose he had on his jacket, "I don't like the draft"—no—

 

SAUER

Then I don't believe—

 

MARSHALL

—no—"I dislike the draft"?

 

SAUER

Then I doubt we would be here, Mr. Justice Marshall.

 

MARSHALL

It's the word, isn't it?

 

SAUER

Yes.

 

MARSHALL

Isn't that all you have?

 

SAUER

"A" word, yes. 

 

[Wrestle mania intro music booms in!]

 

GOD VOICE

Ladies and Gentlemen! Delivering the opinion of the court: Justice John Marshall Harlan.

 

[Harlan comes out like a fighter, yelling like crazy.]

 

HARLAN

The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours.

    While the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric.

 

[Harlan starts to leave, music rises, the announcer begins to speak in the mic, Harlan yanks it from him.]

 

HARLAN

It is, in sum, our judgment that the State may not make the simple public display of this single four-letter expletive a criminal offense. The judgment must be Reversed.

 

[Harlan leaves, music crescendos and fades. Lenny sits at appellee table.]

 

LENNY BRUCE

Subject : Obscene show.

On the above date and time I attended a Lenny Bruce show at the above location, in the company of policewoman Corlene Schnell, 100643. During the half-hour show Bruce used the following words on several occasions:

         bullshit

         shit

         motherfucker

         penis

         asshole.

Since this time six teams of officers in this division have viewed the Bruce show, and have submitted 15.7 reports. Some of the other obscene words used by Lenny Bruce are as follows:

          bullshit

         ass

         asshole

         tits

         penis

         pricks

         cocks

         cunts

In one of his anecdotes relating to New York policemen dressed up as women to apprehend mashers he stated, "This would never stop a real rape artist because some of those cops really have nice asses."

    Now I didn't say that. See, they're really taking this out of context. What I said, I said - dig how they hear. Here's what I said: "There are many transvestites posing as policemen." There's a big difference. 

    And they arrested me and handcuffed me and took me away in the patrol wagon.

    Now, uh, I don't want to get arrested any more. I don't like it.

    I'm just so weary of being arrested. Yeah, it's just, phew! Boy. In the first place, it's whacked me out financially - I don't have any money left. I had to sell my pad. And it keeps me from even working. 

    I'm not a comedian, I'm Lenny Bruce.

 

[Slide: “R.A.V. v. CITY OF ST. PAUL, 1992”]

 

EDWARD J. CLEARY

Mr. Chief Justice, and may it please the Court. Each generation must reaffirm the guarantee of the First Amendment with the hard cases. The framers understood the dangers of orthodoxy and standardized thought and chose liberty. We are once again faced with a case that will demonstrate whether or not there is room for the freedom for the thought that we hate, whether there is room for the eternal vigilance necessary for the opinions that we loathe. 

The conduct in this case is reprehensible, is abhorrent. I'm not here to defend the alleged conduct, but as Justice Frankfurter said forty years ago, history has shown that the safeguards of liberty are generally forged in cases involving not very nice people.

 

TOM FOLEY

Mr. Chief Justice, and may it please the Court. The First Amendment was never intended to protect an individual who burns a cross in the middle of the night in the fenced yard of an African-American family's home. The city of St. Paul has the right to prohibit and prosecute such conduct. The ordinance at issue in this case has been interpreted by the Minnesota Supreme Court to prohibit only conduct that inflicts injury, tends to incite an immediate breach of the peace, or provokes imminent lawless action.

 

JUSTICE ANTONIN SCALIA

If you want to prohibit fighting words, prohibit fighting words. But why pick only if you use fighting words for these particular purposes: race, color, creed, 

religion, and gender? What about other fighting words?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGE

The National Alliance, www.natvan.com

We see ourselves as a part of Nature, subject to Nature's law. We recognize the inequalities which arise as natural consequences of the evolutionary process and which are essential to progress in every sphere of life. We accept our responsibilities as Aryan men and women to strive for the advancement of our race in the service of Life, and to be the fittest instruments for that purpose that we can be.

 

 

Kids.StormFront.org

My name is Derek. I am eleven years old and I am the webmaster of kids.stormfront.org. I used to be in public school, it is a shame how many white minds are wasted in that system. I am now in home school. I no longer get beat up by gangs of non-whites and I 

 

 

FOLEY

I think the city has an absolute right to try to regulate the harm that goes on to its citizens. And certainly this bias-motivated conduct and violence is much more harmful and has more harmful impacts to  its citizens—

 

SCALIA

That's a political judgement. I mean, you may feel strongest about race, color, creed, religion, or gender. Somebody else may feel strong about philosophy, about economic philosophy, about whatever. 

 

FOLEY

Your Honor, the city of St. Paul is attempting to fashion responses to violence that it deems necessary to prohibit and will add additional harms to be regulated as it finds them. 

 

SCALIA

It doesn't have to add anything. You could just drop the words and, you know, just say that arouses anger, alarm, or resentment in others, period or shall be guilty of a misdemeanor. It didn't have to say arouses anger, alarm, or resentment on the basis of race, color, creed, religion, or gender. If it's a fighting word, it's a fighting word. They could get the cross burning, they could get all sorts of activities. 

 

FOLEY

I think it's important to look at bias-motivated violence, which is significantly more harmful on the impact than similar criminal conduct not similarly motivated. The burning of a cross and the African-American family is not the equivalent of a simple trespass or minor arson, either to the targeted victims or to the community in which it occurred.

 

 

 

spend most of my day learning, instead of tutoring the slowest kids in my class.

Lately I have been getting very vile messages, with subjects varying from mutilating the white race, to stomping my brains in. Well I am getting sick of reading these nasty hate filled messages. I would really appreciate it if the people visiting my site would please keep this in mind, if your thoughts towards me are as sick, and vile as some people, please keep them to yourself. After all, I am only eleven years old and I really do not need your hateful thoughts in my head.

 

 

www.nambla.org

WELCOME! The North American Man/Boy Love Association (NAMBLA) was formed in 1978. It was inspired by the success of a campaign based in Boston's gay community to defend against a local witchhunt.  

Our membership is open to everyone sympathetic to man/boy love and personal freedom.

 

 

Central Illinois Right To Life,

www.cirtl.org

The Legacy of Harry Blackmun, author of the infamous Row v. Wade:

The very name Adolf Hitler conjures up images of heaps of human remains within the awful concentration camps of Europe. The name of Josef Stalin causes us to consider the murder of millions of his fellow countrymen. But what about Harry Blackmun ? In a very real sense, he tops them all. The carnage left behind from the judicial boondoggle authored by Justice Blackmun causes all these others to pale in comparison.

 

 

 

 

 

 

SCALIA

If a family with a mentally deficient child should move into the neighborhood and someone should burn a cross on the lawn of that home with a sign that says, mentally ill out, that would not be covered by this ordinance, isn't that correct? 

 

FOLEY

I don't believe under the facts that you described that it would.

 

SCALIA

It's the wrong kind of bias. It's—at least until they come around to adding that, it's the wrong kind of bias.

 

FOLEY

In the case of bias-motivated crimes, there is a compelling state purpose to deal with what is a cancer on society, and it will, unless effectively dealt with, spread throughout the community. Bias motivated crimes have a devastating effect on the particular target victims and equally profound effect on all members of the minority that is indirectly targeted and a pervasive effect o the community as a whole. 

Terroristic conduct such as this can find no protection in the Constitution. Thank you, Your Honors. 

 

SCALIA

The Judgement of the Minnesota Supreme Court is reversed. 

St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.

 

 

 

 

 

 

 

 

 

Body Count (w/Ice-T) - Cop Killer

I got my black shirt on

I got my black gloves on

I got my ski mask on

This shit's been too long

I got my twelve guage sawed off

I got my headlights turned off

I'm 'bout to bust some shots off

I'm 'bout to dust some cops off

 

   I'm a...

 

   COP KILLER, better you than me

   COP KILLER, fuck police brutality!

   COP KILLER, I know your family's grievin' ... FUCK 'EM!

   COP KILLER, but tonight we get even

 

I got my brain on hype

Tonight'll be your night

I got this long-assed knife

and your neck looks just right

My adrenaline's pumpin'

I got my stereo bumpin'

I'm 'bout to kill me somethin'

A pig stopped me for nuthin'!

 

   COP KILLER, it's better you than me

   COP KILLER, fuck police brutality!

   COP KILLER, I know your family's grievin' ... FUCK 'EM!

   COP KILLER, but tonight we get even

 

DIE, DIE, DIE, PIG, DIE!

FUCK THE POLICE!

 

FUCK THE POLICE, for Daryl Gates

FUCK THE POLICE, for Rodney King

FUCK THE POLICE, for my dead homies

FUCK THE POLICE, for your freedom

FUCK THE POLICE, don't be a pussy

FUCK THE POLICE, have some mothafuckin' courage

FUCK THE POLICE, sing along!

 

I'm a muthafuckin' COP KILLER!

 

[Slide: “TEXAS v. JOHNSON, 1989” The text is a voice over of the actual trial. The cast solemnly brings on a large metal bucket, several water buckets, pouring sand into large bucket, etc. The flag is brought out and unfolded.]

 

KATHI ALYCEE DREW

The issue before this Court is whether the public burning of an American flag is entitled to First Amendment Protection. We feel very certain that Congress has the power to both adopt a national symbol and to take steps to prevent the destruction of that symbol, to protect the symbol.

 

JUSTICE ANTONIN SCALIA

Why does the—why did the defendant's action here destroy the symbol? His action does not make it any less a symbol.

 

DREW

Your Honor, we believe that if a symbol over a period of time is ignored or abused that it can, in fact, lose its symbolic effect.

 

SCALIA

I think not at all. I think when somebody does that to the flag, the flag becomes even more a symbol of the country. 

 

DREW

We have the right to preserve the physical integrity of the flag so that it may serve as a symbol because its symbolic effect is diluted by certain flagrant public acts of flag desecration.

 

WILLIAM KUNSTLER

When you use the word "desecrate," you don't mean really in essence praising the flag. Desecrate has a meaning, and I just looked in Webster's Second International about it, and desecrate means "to divest of a sacred character or office, to divert from a sacred purpose, to violate the sanctity of, to profane, the opposite of consecrate." 

It's used all over for commercial purposes. I notice that Barbara Bush wore a flag scarf, for example. There are flag bikinis, there are flag everything. There are little cocktail flags that you put into a hot dog or meatball and then throw in the garbage pail. I think there are all sorts of flags used commercially. 

 

SCALIA

What is the category you're asking us to adopt in order to say we can punish this kind of speech? Just an exception for flags? It's just a—there's just a flag exception of the First Amendment?

 

DREW

To a certain extent.

 

KUNSTLER

By the way, "national flag" does not just mean the American flag. There is a presidential flag—they don't put it in capitals—there is a presidential flag that is flown. The secretary of state has a flag that's a national flag. There are many national flags. I counted seventeen national flags. Each department here in Washington has a flag. So, It think that the word "national" flag needs definition in itself. 

 

SCALIA

You can honor [the flag] all you like, but you can't dishonor it as a sign of disrespect for the country.

 

DREW

No, Your Honor. We're not Arguing that at all.

 

SCALIA

Oh?

 

DREW

Not at all. Individuals have that right. What we are arguing is that you many not publicly desecrate a flag, regardless of the motivation for your action. 

 

KUNSTLER

I think you must at least show some clear and present danger, some imminence. Serious offense does not always result in a breach of the peace. A witness was obviously seriously offended by appellant's conduct because he gathered the burned flag and buried it at his home. Nevertheless so seriously offended, this man was not moved to violence. One cannot equate serious offense with incitement to breach the peace. 

 

CHIEF JUSTICE REHNQUIST, dissenting

For more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning.

 

[These lines are spoken. The flag is burned as the lights fade.]

JUSTICE WILLIAM BRENNAN, opinion of the Court

"A principal function of free speech is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." 

 

REHNQUIST 

The American flag, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. The flag is not simply another "idea" or "point of view". Millions and millions of Americans regard the American flag with an almost mystical reverence.

 

BRENNAN

If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea because society finds the idea…offensive. 

We can imagine no more appropriate response to burning a flag that waiving one's own.

Copyright © K. Brian Neel. All rights reserved. Except for brief passages quoted in newspaper, magazine, radio or television reviews, no part of this book may be reproduced in any form or by any means, electronic or mechanical, including photocopying or recording, or by an information storage and retrieval system, without written permission from the author.Professional and amateurs are hereby warned that this material, being fully protected under the Copyright Laws of the United States of America and of all other countries of the Berne and Universal Copyright Conventions, is subject to a royalty. All rights including, but not limited to, professional, amateur, recording, motion picture, recitation, lecturing, public reading, radio and television broadcasting, and the rights of translation into foreign languages are expressly reserved. Particular emphasis is placed on the question of readings and all uses of this play by educational institutions, permission for which must be secured from the authorá║s representatives. For all rights, including amateur and stock performances, contact K. Brian Neel.