Remembering Al Bendich, the Lawyer that won the “Howl” Trial

howl not obsceneOn June 3rd, 1957, an undercover customs officer entered City Lights Bookstore and purchased a copy of Howl and Other Poems (1956) by Allen Ginsberg. He promptly arrested Shig Murao, the store’s manager. And later Lawrence Ferlinghetti, the publisher of City Lights Books, would be arrested by a San Francisco police officer for the publication of that volume. The resulting trial — and the verdict that judged “Howl” to be not obscene material, but rather, a work of literary merit and cultural value — is now internationally famous for being the last time a poem would be the subject of an obscenity trial in the United States.

Less well known perhaps is the man responsible for the trial’s outcome, Al Bendich, who passed away on January 5th this year. Bendich was the young ACLU lawyer who successfully mounted a defense for Ferlinghetti and Murau that has reverberated through the decades since, setting the highest water mark now known to American law and letters for the advocacy of free expression.

albendich

In the same month of Ferlinghetti’s arrest, the Supreme Court ruled in Roth v. United States that obscene speech did not enjoy the right of First Amendment protection. This may have cast an ominous shadow over the looming trial in San Francisco. Ginsberg’s description of his contemporaries as “angelheaded hipsters” (which appears below)

who got busted in their pubic beards returning through Laredo with a belt of marijuana for New York,
who ate fire in paint hotels or drank turpentine in Paradise Alley, death, or purgatoried, or purgatoried theirtorsos night after night
with dreams, with drugs, with waking nightmares, alcohol and cock and endless balls

who let themselves be fucked in the ass by saintly motorcyclists, and screamed with joy

seemed, to the authorities anyways, to fall firmly under the state of exception described by the Supreme Court ruling. However, the Court’s decision also included the provision that sex and obscenity were not synonymous, and that obscenity was defined more by its purpose than its content. If speech were designed only for prurient effect, the Court held, it was effectively obscene. Theoretically, then, if other interests could be adduced, the speech was not obscene. It was Bendich’s own spark of genius to argue for “Howl”‘s cultural and literary importance. In the end, the judge agreed.

howl on trialHowl on Trial: The Battle for Free Expression (2006), edited by Bill Morgan and Nancy J. Peters, includes a thorough account of the proceedings, told through primary documents such as newspaper articles, trial transcripts, and correspondence between Ginsberg and Ferlinghetti. But the most astounding document included is probably Judge Clayton Horn’s decision, a testament to the potential of the American judicial system to get it right every now and then:

“I do not believe that ‘Howl’ is without redeeming social importance. The first part of ‘Howl’ presents a picture of a nightmare world; the second part is an indictment of those elements in modern society destructive of the best qualities of human nature; such elements are predominately identified as materialism, conformity, and mechanization leading toward war. The third part presents a picture of an individual who is a specific representation of what the author conceives as a general condition.”

Interesting assessment, given that Ferlinghetti described Judge Horn at the time as a “God-fearing Sunday school teacher” (Horn had recently sentenced two shoplifters to attend a screening of the Cecil B. Demille film The Ten Commandments, which was in general release at the time). Al Bendich’s ability to lead Horn to understand the provocations of “Howl” well enough to write his decision using the benign structural terminology of an English professor is an enduring gift to creativity and freedom of speech.

From Lawrence Ferlinghetti:

“Al Bendich, the young ACLU lawyer who won our case in the ‘Howl’ trial in 1956, has just died at the age of 85. We were indicted for publishing and selling obscene poetry, and Al was able to establish the Constitutional grounds upon which Judge Clayton Horn made his decision of ‘Not Guilty’ in our favor. Al also defended us successfully in a Zap Comics case in the 1960s. He will be sorely missed by all of us.”

Al is also well known for defending and acquitting legendary comedian Lenny Bruce of similar charges in 1962 (the case was also presided over by Judge Horn). To read more about Al, head over to the ACLU website, and these two obits appearing in the New York Times and SFGate respectively. Remember Al Bendich.

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