Laughing with Lenny Bruce, from schmuck to conscience

 

Kitty Bruce cuts the ribbon on the Lenny Bruce archive at the Brandeis University Goldfarb Library.

There is indecent language in this post.

In the last week of October, Brandeis University hosted a conference, “Comedy and the Constitution,” celebrating the life and work of comedian Lenny Bruce (1925-1966).  The conference marked the accession in the Brandeis University Library of Lenny Bruce’s papers, donated by his daughter Kitty Bruce, who participated in the conference.  The program was organized by Professor Steve Whitfield in American Studies and Sarah Shoemaker in Goldfarb Library Special Collections.  Featured speakers included Christie Hefner, former chairwoman and CEO of Playboy Enterprises, and “outrage” comedian Lewis Black, known to many through his long-running Daily Show segment, “Back in Black.”

My own paper for the academic part of the program concerned free expression and communication regulation.  Specifically, I looked at Bruce's technique of repeating indecent words with the aim of disempowering them.  If one repeats fuck again and again, the tenth repetition doesn’t sting the ear as much as the first.  George Carlin was there at least once when Bruce was arrested for “obscenity” based on the use of discrete words.  There can be little doubt that the experience directly influenced Carlin’s famous “seven dirty words” routine.  This comedic tradition at least tracked a strengthening of free expression in U.S. culture and law—think “Fuck the Draft” on Cohen’s jacket, 403 U.S. 15 (1971)—and might moreover have been a precipitating force.  For better or worse, the power today that attaches to many favorites in the pantheon of bad words is not what it used to be.  Ruth Wajnryb observed in her 2005 book, Language Most Foul, “[N]owadays it takes several fucks to achieve what one lone fuck would have achieved ten years ago.”

The lodging of Bruce’s legacy at Brandeis is a good fit for a couple of reasons.  The university is named for Justice Louis Brandeis, an associate justice of the U.S. Supreme Court from 1916 to 1939.  Brandeis was a key contributor to modern First Amendment law.  In the wake of World War I, he laid the groundwork for a more vigorous model of speech protection than had been known in the prior century.  Even amid the Red Scare, Brandeis recognized that if freedom of speech means anything, then minority perspectives on politics must be protected, however distasteful to the establishment.

Brandeis also was the first Jewish member of the U.S. Supreme Court, an experience that informed his views on social justice and antimajoritarianism.  Judaism played a key role in the founding of (non-sectarian) Brandeis University and remains today an omnipresent part of the university’s social culture.  Bruce was a Jewish comedian, and his cultural experience shaped his comedy.  

A number of academic papers at the conference focused on the role of Yiddish in the comedy of Bruce and also in the wider tradition of Jewish comedy.  I was ignorant on this point.  But presenters made a compelling case that the Yiddish tongue is especially well suited to comedic devices such as double entendre and nuanced word play.  In broad strokes, the particular compatibility of Yiddish with comedy seems a function of the truism that people have always turned to comedy to relieve suffering.

Christie Hefner

In terms of political commentary, Christie Hefner traced a direct legacy from Lenny Bruce to the sharp witted comedy of The Daily Show and Last Week with John Oliver.  I think she’s right.  Jon Stewart and Stephen Colbert routinely scoffed at the notion that they produce news, despite serious research showing their influence on popular thinking about politics.  Stephen Colbert’s SuperPAC bits on The Colbert Report spoke volumes on the very real role of money in politics.  John Oliver eschews the label of journalist, but his work at HBO has at least raised awareness, if not effected reform, on critical social issues such as net neutrality.

Someone at the Brandeis conference pointed out that some of our attribution to Lenny Bruce of a desire to make the world a better place--by cursing of all things--has got to be a posthumous fiction.  I think that’s right too.  Bruce was just a person, not a legend.  He wanted to sustain himself with his flair for the funny, to fill seats at shows, and to take care of his family.  Arrests for obscenity--the more absurd the state's case, the better--were good for business.

I’m not troubled by any dissonance in the legend and the man who was Lenny Bruce.  The Old Testament is replete with the sea changes of unlikely messengers.

Lewis Black

Tesla owner may keep 'FKGAS' license plate for now

⚠ Warning: Explicit language ahead.

Vehicle license plate cases occupy their own bizarre niche of First Amendment law.  Many a law student has frolicked in the casenote garden of free speech doctrine to ponder these curious shout-outs of individuality in the midst of their seeming imprimatur of state authority.

Are license plates government or private speech?  Can obscenity occur in a word?  Has indecency even been regulable since Mark Harmon said "deep shit" on Chicago Hope?  Is the license plate a limited public forum?  Is public forum doctrine still a thing?  Oh, the vanity!

In the latest installment of this immortal combat, the U.S. District Court for the District of Rhode Island issued a preliminary injunction against the Rhode Island (my home state) Department of Motor Vehicles (DMV) over its license plate approval standard: "connotations offensive to good taste and decency."

The plaintiff challenged the Rhode Island standard both facially and as applied under the First Amendment after his plate, "FKGAS," was recalled upon a citizen complaint to the DMV.  To the self-described "outdoorsy" plaintiff, according to his complaint in the litigation, the plate means "fake gas," appropriately adorning his electric Tesla.  (But see also court's footnote 10, below.)  Opining on plaintiff's motion to restrain and defendant's motion to dismiss, the court wholly rejected the DMV's effort to employ government speech doctrine, ruling instead that the plaintiff's First Amendment challenge held water under (non)public forum, overbreadth, and vagueness doctrines.

"The very essence of vanity plates is personal expression," the court wrote, citing classic precedents from "Fuck the Draft" on Cohen's courthouse jacket, to "Bong Hits 4 Jesus" at the Olympic torch relay, to the recent "Slants" rock'n'roll trademark.  At the same time, the DMV might in the future muster the requisite "reasonable" and viewpoint-neutral support for its list of banned plates.

"Although [state law] authorized the DMV to promulgate rules and regulations giving further guidance on what is not allowed, there is no indication at this stage of the litigation that the DMV has exercised that opportunity," the court wrote. "Instead, its history of granting and rejecting vanity plate requests leaves the observant to try to glean some governing principles."

But wait; there's more.

U.S. District Judge Mary S. McElroy wrote a delightfully playful introductory paragraph to the memorandum opinion, worth sharing here in full, with footnotes.

The American love affair with the automobile is well-known.[FN1] With some densely urban exceptions, we are a nation of drivers, not bus takers.[FN2] We drive when we could walk. For some, the automobile is a symbol of prestige,[FN3] for others a utilitarian way to get around.[FN4] For some, it is an instrument of grand adventure,[FN5] for others a tried-and-true way of putting a baby to sleep.[FN6] Sometimes it is a repository for personal goods;[FN7] for unfortunate others, sometimes it is a home.[FN8] For Sean Carroll it is, no doubt among other things, a vehicle for personal expression: this Rhode Island resident has a strong commitment to the environment and it is because of that attitude that he has become embroiled in this controversy with the Rhode Island Division of Motor Vehicles (“DMV”), the state arbiter of license plate alphanumeric assignments. Mr. Carroll, as a manifestation of his views, bought himself an electrically powered TESLA automobile and, in August of 2019, requested from the DMV[FN9] the license plate "FKGAS."[FN10] It was issued in the ordinary course of such requests, but several months later, after the DMV received a complaint, it recalled the plate on threat of a revocation of his vehicle registration were Mr. Carroll not to return it. Mr. Carroll chose to put his energy where his mouth is, and commenced this litigation, seeking to enjoin the DMV from recalling the plate and from revoking his registration.

1 Jeremy Hsu, Why America’s Love Affair with Cars is no Accident, Scientific American (May 24, 2012)....

2 According to ongoing studies by the United States Department of Transportation, “87% of daily trips take place in personal vehicles and 91% of people commuting to work use personal vehicles.” U.S. Dept. of Transportation, National Household Travel Survey Daily Travel Quick Facts, Bureau of Transportation Statistics ... (Aug. 19, 2020).

3 “A rise in tangible luxury offerings in vehicles, shifting consumer preferences from sedan to SUVs, and increasing disposable incomes of consumers have been propelling the demand for luxury cars around the world.” [Mordor Intelligence] (Aug. 19, 2020).

4 Whether an owned vehicle, a rental one, or a Zip-car, the automobile is the preferred method for getting around. DeBord, Matthew, “The car is about to transform society – for the second time” [Business Insider] (March 28, 2016)....

5 Hunter S. Thompson described the feeling behind his trip in the Red Shark in this way: “Every now and then when your life gets complicated and the weasels start closing in, the only cure is to load up on heinous chemicals and then drive like a bastard from Hollywood to Las Vegas ... with the music at top volume and at least a pint of ether.” Fear and Loathing in Las Vegas: A Savage Journey to the Heart of the American Dream [Rolling Stone] (1971).

6 “New parents drive an average of 1,322 miles per year to put their kids to sleep, according to a 2012 UK study. Dads averaged up to 1,827 miles in the study, and half of all the parents surveyed admitted to driving their kids around to get them to sleep at least once a week.” Ben Radding, Why Driving In A Car Puts Your Baby to Sleep, Fatherly (Aug. 26, 2019)....

7 See People v. Taylor, 614 N.E.2d 1272, 1277 (Ill.App. 1993) (for defendant, who was a passenger in her boyfriend’s car during a cross-country trip, “[t]he interior of the Volvo was in a sense their ‘home’ for the duration of the trip.”).

8 In one American city as recently as a year ago, 1,794 people were living out of their vehicles – an increase of 45% from two years before. Vivian Ho, The Californians forced to live in cars and RVs, The Guardian (Aug. 18 12:29 PM)....

9 Mr. Craddock has been sued in his official capacity as Administrator of the Division of Motor Vehicles. The defendant is referred to at various places in this memorandum as “Mr. Craddock,” “the DMV,” and “the Registry.”

10 Mr. Carroll alleges, and at this early stage of litigation the Registry does not dispute, that FKGAS was his daughter’s suggestion, intending a meaning of “fake gas” to refer to the electric car. He does not contest, however, that the plate could also be perceived as sending the message, “fuck gas” and he embraces that second meaning.

A compelling question arises as to what plate combinations have failed to qualify for R.I. DMV approval.  The FOIA advocates of the Government Attic endeavored to collect banned license plate lists from the states a few years back.  The fruits of their labors are collected online for your downloading gratification.  In response to Government Attic's request, the R.I. DMV responded: "The RI DMV does not have a list of prohibited plates, nor does it have instructions regarding screening of personalized plates," attorney Marcy Coleman wrote in 2012.

In the complaint in the instant case, in 2020, the plaintiff alleged:

14. On information and belief, the DMV maintains and makes use of a list of prohibited vanity plates, which includes courtesy plates that may convey political or social connotation but which it designates not for approval if requested, including: AIDS, CHRIST, CHUBBY, DIABLO, DOOBIE, DRUNK, GAY, GUN, HAJJI, HELL, HOOSIER, JESUS, JOCKY, LESBIAN, REDNECK, SLOB, TROLL, and YANKEE, among others.

15. On information and belief, the same list also purports to ban various common words such as APPLE, BANANA, HOOT, METER, and YELLOW, among others.

16. On information and belief, Defendant has on occasion, without any additional standards, approved courtesy plates with words that appear on its list of prohibited plates, including APPLE, CHRIST, TROLL, YANKEE, and YELLOW. 

17. On information and belief, the DMV has specifically denied requests for other special courtesy plates which arguably convey political or social connotation, including: BONG, HOOKAH, NYSKS, and REDNCK, among others. Conversely, on information and belief, the DMV has approved these special courtesy plates: DOGDOO, FACIAL, FATTY, FCCING, FKNFST, FKS, FLSHR8, FRELOV, FRIAR, FUBAR, HEAVEN, GUNS, JEWISH, NEAT, OLDFRT, PISTL, REDNEC, REDNEK, REDNK, SABER, SKCK, SNAFU, and TIPSY, among others.

18. In other words, Defendant bans as “offensive to good taste and decency” the license plate CHUBBY but not FATTY; DRUNK but not TIPSY; HAJJI and HELL, but not HEAVEN or JEWISH; GUN but not GUNS or PISTL or SABER; HOOSIER but not FRIAR; REDNECK, but not REDNEK, REDNK OR REDNEC; and SLOB but not NEAT.

19. Defendant’s attempt to ban Plaintiff’s FKGAS plate as offensive stands in contrast to his allowance of such plates as FCCING, FKNFST, FKS, FUBAR, SKCK, and SNAFU, as well as such plates as DOGDOO, FACIAL, and OLDFRT.

20. On information and belief, Defendant has issued standard license plates to car owners that contained the letters FK or FU followed by three numbers.

The case is Carroll v. Craddock, No. 1:20-cv-00126-MSM-LDA (D.R.I. Oct. 2, 2020).  The R.I. ACLU is representing plaintiff Sean M. Carroll.  Commissioned in the judiciary just one year ago, Judge McElroy has the distinction of being nominated to the bench by both President Obama, in 2015, when her nomination was left formally incomplete in the Senate, and President Trump, in 2018 and 2019.  With a B.A. from Providence College and J.D. from Suffolk Law, she worked previously as a public defender and in private practice in Providence, Rhode Island.

Lawsuit alleges excessive force against federal immigration detainees held near public law school

⚠ Warning: indecent language.

Latino detainees of the Bristol County House of Corrections, which is located just three-quarters of a mile from the University of Massachusetts Law School, sued the county sheriff and Immigration and Customs Enforcement, alleging serious physical abuses.

Filed in April, the complaint, stating Bivens and § 1983 claims for excessive force, is available from the federal district court docket at Court Listener. The factual allegations detail incidents of violence and some not so flattering quotations of officers, such as: "Shut the fuck up. You bitches are a bunch of immigrants without papers. You have no rights."

Sheriff Hodgson shakes hands with former President Trump
at a White House event recognizing sheriffs in 2019.
(Official White House photo by Joyce N. Boghosian via Flickr.)

Named in the lawsuit is Bristol County, Mass., four-term "tough on crime" Sheriff Thomas M. Hodgson. This lawsuit is not his first tangle with unsavory allegations.

A 2020 report by the office of Attorney General Maura Healey determined that authorities employed excessive force in violation of the civil rights of federal immigration detainees (press release). New Bedford, Mass., tort lawyer Betty I. Ussach has written letters to local media complaining of the high cost of defending Hodgson's style of criminal justice (EastBayRI, Dartmouth Week Today).

But in past years, Hodgson's name recognition has seemed to work a no-publicity-is-bad-publicity magic in his reelection bids. Hodgson faces a slate of challengers this year.

I wonder whether the geographic juxtaposition of the Bristol prison and the Immigration Clinic at the state's only public law school is not telling of state conflict-of-interest policy, which would complicate if not prohibit clinic litigation against state and local actors. 

Clinic director Professor Emerita Irene Scharf retired just one one month ago. She exited amid some turbulence over how and even whether the law school would take responsibility for existing clients. It remains to be seen what the clinic will look like under new management. Scharf and sociology and anthropology Professor Lisa Maya Knauer have labored diligently for decades on behalf of the immigrant Latino community in south coast Massachusetts. But university personnel at Dartmouth, Mass., far from the aegis of the "flagship campus" at Amherst, must tread lightly in politically sensitive matters, lest they jeopardize the very existence of the system's less favored locations.

The present lawsuit, Morocho v. Bristol County Sheriff's Office (D. Mass. filed Apr. 29, 2022), was filed by Washington, D.C.-based NGO Rights Behind Bars and signed by its Boston-based litigation director, attorney Oren Nimni. Nimni is a graduate of Northeastern Law and an adjunct professor at Suffolk Law. So let the record reflect that monied Boston private law schools can make grief for public officials, too.