Profane Comedy

In an age of almost complete frankness in plays, novels and movies, the question of where language becomes illegal obscenity continues to plague the courts. Groping for an answer, Supreme Court Justice Hugo Black argues that any ban on obscenity threatens free speech. Unwilling to go that far, his brethren have vaguely drawn the line at that which offends "contemporary community standards" and appeals mainly to "prurient interest."

Last week a three-judge Manhattan criminal court applied that test to Comedian Lenny Bruce, a nightclub social satirist who deliberately dips his wit in scatology. A two-judge majority found Bruce guilty of using words "patently offensive to the average person." The judges broadened their definition by remarking that Bruce's language "clearly debased sex and insulted it." This very un-Victorian and quite contemporary observation points up the fact that much sexual humor in today's novels and plays is based on homosexuality, perversion and nonconsummation. In his nightclub act, Bruce used unscrubbed words that are common gutter patois for incest, sodomy and excrement. His words would hardly shock Army veterans, let alone Chaucer readers. But the two-judge majority found him guilty under a New York State law which forbids any "obscene, indecent, immoral or impure" public performances.

The dissenting judge argued that "a total absence of any guideposts" has mired the community-standards test in "judicial subjectivity"; that it forces judges to exercise the powers of "super-legislators, or indeed, of absolute mon-archs." He suggested that the New York obscenity law is unconstitutional, and grandly advised that the whole question of defining obscenity should be left to "a federal constitutional convention." Meanwhile, unless a higher court reverses his conviction, Bruce faces three years in jail.

In a U.S. appellate court in Philadelphia last week, other judges had their say about obscenity as they upheld a five-year federal rap and $42,000 fine against Ralph Ginsburg, publisher of the leering (now defunct) quarterly Eros, whom a lower court had convicted on 28 counts of mailing obscenity. Eros, ruled the appellate court, was "an operation on the part of experts in the shoddy business of pandering to, and exploiting for money, one of the great weaknesses of human beings."

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