Obscenity law, as Lenny Bruce learned to his sorrow, is probably the most contradictory and murky area in jurisprudence -- it's so open-ended that it can justify virtually any conclusion, and so empty of meaningful or even coherent content that it has increasingly been ignored. The landmark Supreme Court obscenity case remains Roth vs. the United States (1957). As Collins and Skover point out, the majority opinion, written by Justice William Brennan, was Janus-faced. Free-speech absolutists took comfort in Brennan's statement that any work containing "even the slightest" meaningful content was protected by the First Amendment. Conservatives celebrated the decision's explicit declaration that obscene speech, being essentially worthless, was not protected; and they cheered the justices' affirmation of "the social interest in order and morality."

The heart of Roth is the following famous formula for determining obscenity: "whether to the average person, applying contemporary community standards, the dominant theme of the material as a whole appeals to prurient interest."

For Bruce and some of his many lawyers, the last clause -- "appeals to prurient interest" -- seemed to offer a powerful line of defense. As Bruce -- who understandably became increasingly obsessed with the law -- analyzed it, "I must get you horny -- that's what it means. If I do a disgusting show ... that's not obscene." But Roth was vague on this point too: In a footnote, Brennan noted that prurience included "a shameful or morbid interest in nudity, sex or excretion" that was described in a manner going "substantially beyond customary limits of candor." Prosecutors seized on this point to attempt to prove that Bruce was guilty of obscenity.

A subsequent Supreme Court ruling, Miller vs. California (1973) reaffirmed Roth, but retreated slightly in a more conservative direction. Chief Justice Warren Burger came up with a new qualifying test, the famous "LAPS" formulation: In addition to deciding whether a given work depicted or described sexual conduct in a prurient way, the familiar "average person applying contemporary community standards" was to decide "whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." This replaced the earlier, nonmajority formula that a work had to be "utterly without redeeming social value," thus making it slightly easier to find works obscene.

At the end of his career, in an extraordinary interview, Brennan admitted that his Herculean attempts to come up with a workable obscenity formula -- he penned seven obscenity decisions -- had failed. Speaking to journalist Nat Hentoff, a staunch Bruce defender and free-speech advocate, Brennan said, "I put 16 years into that damn obscenity thing. I tried and tried, and I waffled back and forth, and finally I gave up." The key point, for Brennan: "If you can't define it, you can't prosecute people for it. And that's why ... I finally abandoned the whole effort."

The tragic ordeal of Lenny Bruce demonstrates both the emptiness of the Supreme Court's obscenity rulings and the way that social mores -- which in practice were sometimes nothing more than the beliefs or tastes of one or two beat cops or local D.A.'s -- rose up to fill the void left by the law's absence. When the law is silent or meaningless, it usually means that society is conflicted or confused -- and at such times, mere power wins. In Bruce's case, it was a power that was waning -- but it had enough venom left, enough prosecutors and judges and policemen, to destroy him.

From this perspective, Ashcroft's anti-porn crusade -- if serious and not merely a show for right-wing consumption -- could be a power move in its own right, a gamble that those millions of Americans who enjoy porn will be too ashamed to acknowledge it, that no one will resist a massive crackdown on X-rated material. If that proves to be the case, those on the right could dream that pornography's hole card -- its prevalence -- might be trumped by the overwhelming force of the law. (That is, of course, if the Bush administration really has the stomach to pursue its crusade, face down the Fortune 500 companies that beam porn into hotel rooms, and split the right wing into its libertarian and moralist factions.) After all, by the standards of both Roth and Miller, one would have to say that all pornography is obscene on the face of it: If pornography doesn't appeal to "prurient interest," what does? Nor does the "average person applying community standards" offer hope to civil libertarians: A close reading of Miller shows that those standards are not to be used to determine whether a given work or type of work is widely accepted by the community -- which would of course leave porn protected -- but only whether that work depicts sexual activity in an offensive way and lacks serious artistic, etc., value.

In other words, pornography under America's current vague obscenity law is clearly obscene -- indeed, the point is virtually tautological -- and thus has no First Amendment protection.

But it doesn't matter. The law will follow reality -- which is why it's time to get rid of our outdated obscenity laws altogether. (Laws protecting minors from viewing or being depicted in obscenity, of course, should remain on the books.) When laws become embarrassments, mere empty gestures pointing at a moral code more honored in the breach than in the observance, they should be whacked. Porn isn't going anywhere, any more than all the other mixed-up, loud, brilliant, obnoxious, seductive, vulgar, stimulating, offensive, wild, blandly corporate, deeply personal messages that blare from every nook and cranny of this juiced-up lowrider of a society.

And in some small, indirect but important way, we have Lenny Bruce to thank for that. Lenny Bruce, who refused to shut up. Lenny Bruce, who shoved "nigger" and "kike" and "cunt" and "cocksucker" in our faces, sometimes to enlighten, sometimes to amuse, sometimes just to shock. Lenny Bruce, who stood everything on its head, a whirring mixmaster of rage and compassion and ugliness. Lenny the dizzying master dramatist, shtickmeister of the Yiddish id-ish. Lenny marrying the stripper, screwing everything, and boasting about it all so exquisitely loud that our hypocrisy and envy would flare up high and show us a way out of the dark. Lenny for the Jews, Lenny for the blacks, Lenny for justice, Lenny for nothing and no one, Lenny whose only real subject was the void at his own center he endlessly pursued through great tales and dark cities, Lenny dying again and again and dying really finally for our sins, and his own.

Lenny's 1961 arrest at the Jazz Workshop was the only one of his busts that had a happy ending. He was fortunate enough to get a learned and conscientous judge, Clayton Horn, who four years earlier had acquitted the beat poet and publisher Lawrence Ferlinghetti on obscenity charges brought against him for publishing Alan Ginsberg's "Howl." Horn had relied on Roth for that decision, and he instructed the jury according to the liberal interpretation of Brennan's ruling: They were to consider the work as a whole; foul language of itself was not obscene; if the work had any redeeming social value, it was not obscene. The jury found Bruce not guilty.

Before Bruce experienced the learned justice of Horn, however, he fell into the less-than-Solomonic hands of a 61-year-old judge named Albert A. Axelrod. Judge Axelrod will not go down as one of history's great jurists, but he was nevertheless immortalized by the man he wanted to throw in jail. The perfectly named Axelrod apparently believed in dispensing justice out of his gut, an area that was only uncertainly connected to such things as Supreme Court rulings. Faced with Bruce's lawyer's arguments that the police officers had not looked at Bruce's work as a whole -- a standard clearly laid down in the landmark Roth case, four years earlier -- Axelrod stated, "You don't have to have the whole performance to be obscene. I think that the way any word is used or spoken during that performance which has an obscene meaning within that definition, that there is a violation." Later, when the defense attorneys again raised similar Roth-based points, Axelrod went off his axle: "I don't need any points and authorities to tell me that this language which was used and which was quoted by the officer and the context in which it was used is obscene. Now, if the Supreme Court takes a different view, that is up to them. But to me, it is obscene and I certainly wouldn't let my grandchildren sit in and listen to a show like that. Now, that is my opinion."

Collins and Skover note, "So much for judicial acumen and deference to the highest court in the land."

Axelrod ended up by granting a 30-day stay so that Bruce's lawyer could transcribe a tape of the performance. But his parting words for Bruce made it clear that for him, the trial was a mere formality and Bruce had already been found guilty. "It is my understanding [Mr. Bruce] has a show Sunday. If there is any repetition of this conduct, I'll deal with him accordingly. I want to caution you right now that if I get a report in the interim that you repeated any of the language or anything obnoxious, you will take the consequences. Is that clear? ... Let that be a warning to you."

Axelrod closed with what proved to be a world-class understatement: "From your testimony here, I just have a little feeling that the lesson hasn't gotten home."

A slightly different account of Axelrod's admonition appeared in the San Francisco Chronicle, which reported that he said, "I'm cautioning you know that if you say anything obscene at your performance, I'll hear about it ... if I get a report that you have repeated this language, you'd better bring your toothbrush with you when you come to court again."

Two days later, Lenny Bruce played San Francisco's Curran Theater. Faced with jail if he so much as said a bad word, Bruce went off on Axelrod:

Dig Axelrod: "I warn you, Lenny Bruce, if I hear those words..." If he hears from somebody else that I talked dirty tonight, then I'll be in court again. "If I hear it, you'd better bring your toothbrush." Hmm ... now ... "Bring your toothbrush." This means two things to me. The first thing ... that we were compatible, because a toothbrush is an intimate thing, everybody knows that.

The judge making a homosexual play for Lenny: It was pure Bruce, perversely defiant, recklessly brilliant. It's one thing for Shakespeare to write "Thou, rascal beadle, hold thy bloody hand: why dost thou lash that whore? Strip thy own back, thou hotly lusts to use her in that kind, for which thou whip'st her." Bruce said it when he knew the beadle was hotly lusting to whip him. He couldn't help it -- he wasn't just riding the whirlwind, he was the whirlwind. He went on and on, deriding Axelrod, mocking his pious invocation of his grandkids by imagining him screwing Bruce's ex-wife and playing along with her kinky fantasy that he was her grandfather. It was a free-associative tour de force that went on for more than three hours.

"Let me tell you the truth," Bruce once said. "The truth is what is. And what should be is a fantasy, a terrible, terrible lie somebody gave the people long ago." Stripping off all illusions can be a noble task, and an incredibly funny one if handled by a comic master like Bruce. But when the laughter dies, what is stripped away may look less like illusion than human skin.

Bruce lived by that knife edge, and died by it. But it feels right to freeze him forever in one moment, not the bloated, confused, bitter junkie he became but the sharp young hipster, the cat who cracked up Miles, who could keep all the balls in the air at the same time and who, one San Francisco night in 1961, before they broke his spirit, when a bust was just a fly on his ass, threw it back in their face, running it all down, free.

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