All three performances of the defendant, Lenny Bruce, were obscene, indecent, immoral and impure within the meaning of Section  1l40-a of the Penal Law. While no tape is available as to the first performance [past midnight, March 31-April 1], this monologue, according to the testimony, was essentially the same as that of the second [April 1, after 10:00 p.m.] and third [April 7, after 10:00 p.m.] performances. In the latter two performances, words such as "ass," "balls," "cock-sucker," "cunt," "fuck," "mother-fucker," "piss," "screw," "shit," and "tits" were used about one hundred times in utter obscenity. The monologues also contained anecdotes and reflections that were similarly obscene.

For example:
1. Eleanor Roosevelt and her display of "tits." (1st performance; transcript of 3rd performance at p. 27)
2. Jacqueline Kennedy "hauling ass" at the moment of the late President's assassination. (Transcript of 2nd performance at p. 22; transcript of 3rd performance at p. 13)
3. St. Paul giving up "fucking." (1st performance; transcript of 2nd performance at p. 12; transcript of 3rd performance at p. 19)
4. An accident victim-who lost a foot in the accident-who made sexual advances to a nurse, while in the ambulance taking him to the hospital. (1st performance; transcript of 2nd performance at p. 25)
5. "Uncle Willie" discussing the "apples" of a 12-year old girl. (transcript of 2nd performance at p. 20; transcript of 3rd performance at p. 12)
6. Seemingly sexual intimacy with a chicken. (transcript of 2nd performance at p. 25)
7. "Pissing in the sink" and "pissing" from a building's ledge. (transcript of 2nd performance at p. 24; transcript of 3rd performance at p. 15)
8. The verb "to come," with its obvious reference to sexual or orgasm. (1st performance)
9. The reunited couple discussing adulteries committed during their separation, and the suggestion of a wife's denial of infidelity, even when discovered by her husband. (1st performance; transcript of 2nd performance at p. 29)
10. "Shoving" a funnel of hot lead "up one's ass." (transcript of 2nd performance at p. 22; transcript of 3rd performance at p. 13)
11. The story dealing with the masked man, Tonto, and an unnatural sex act. (1st performance)
12. Mildred Babe Zaharias and the "dyke profile of 1939." (transcript of 3rd performance at p. 27)

During the first performance Bruce fondled the microphone stand in a masturbatory fashion. In the second performance, while telling of an act of exposure, Bruce turned his back to the audience and moved his hand outward and upward from below his waist in an obvious and crude pantomime of an act of exposure and masturbation.

The dominant theme of the performances appealed to the prurient interest and was patently offensive to the average person in the community, as judged by present day standards. The performances were lacking in "redeeming social importance."

The monologues were not erotic. They were not lust-inciting, but, while they did not arouse sex, they insulted sex and debased it. [A discussion of the legal authorities, sustaining such debasement as pornography, followed here.]

They [the monologues] were obscene, indecent, immoral, and impure. The monologues contained little or no literary or artistic merit. They were merely a device to enable Bruce to exploit the use of obscene language. They were devoid of any cohesiveness. They were a series of unconnected items that contained little of social significance. They were chaotic, haphazard, and inartful....
 

By J. Randall Creel
Judge of the Criminal Court of the City of New York

 Throughout the recent Lenny Bruce trial a court of which I was a member heard much testimony from many sources in an effort to ascertain the "contemporary community standards" as to obscenity as indeed the directives of higher courts required (People v. Finklestein, 1961, 11 N. Y. 2d 300: People v. Roth, 354 U.S. 4761.  But in a total absence of any guideposts or other directives from such higher courts I fear we proceeded not unlike an explorer plunged into a vast uncharted virgin area in pursuit of a mirage or some fabled lost golden city.  In this quest the time honored rules of evidence proved to be something of a highly unsuitable incumbrance, and the judicial process revealed itself as a most limited and inadequate, if not improper, tool for this task.

 Is the mandate to find the "community standards" as to obscenity just a judicial snipe hunt?  The most current judge-made-law as to obscenity has been established without: any relation to and indeed in controversion of "community standards" of obscenity, in a judicial absolutist application of a judicially declared doctrine of absolute freedom of expression, which has overridden and negated all obscenity laws which may in any way impinge upon the summum bonum of unrestrained freedom of all expression.  This state of the law warrants raising questions as to the suitability and propriety of attempting to set obscenity standards by the judicial process and by judges.  It should be clearly understood that which follows are questions I put for myself and myself alone and should there be any judicial indignation from higher sources it should not be directed at my fellow judges in the Bruce case.  

 I would suggest that it is most doubtful that there is in fact such a thing as a single overall "community standard" as to obscenity, in such a diverse and varied national community, unless it exists in the predilections of such jurists as have laid down such predilection as such precep:  A very large measure of judicial subjectivity is inherent in the determination of obscenity by the judicial process and by judges and it is suggested that this phase "community standard" is most probably but another robe to cloak the extent to which the judiciary which has been forced to reshape and mold the law as to obscenity, exercise the powers of super-legislators or indeed of absolute monarchs.

 I suggest that Bench and Bar should not be unmindful that there are grave limitations in the two-sided judicial process (and in the judiciary who can properly function only through that process) in dealing with such many and multiple-sided social problems, of which obscenity is but of very minor stature among those grave social-policy problems with which  the judiciary of today is required to deal.  The limitations of the judicial process do not permit the judiciary to call and examine all witnesses who are best informed as to the particular problem presented nor make any provisions for adequate notice nor an opportunity for those effected to be heard on what is only a private litigation thought the decisions and opinion of that private litigation may profoundly effect hundreds of thousands of persons, and indeed even alter or amend the basis law of the constitution.

 Periodic constitutional conventions provided for in Article V of the Constitution of the United States afford a much more appropriate adequate and articulate means of solving all such social policy problems of our ever changing society than does the judicial process.

 The failure of our society to make any use of the Article V constitutional convention means of meeting change during an era of rapidly developing problems coupled with the failure or refusal of all branches of government, other than the judiciary, to move to meet the need for change have placed upon the limited judicial process not only gravely inappropriate strains, but have brought about a most ironic evolution in the Federal Constitution.  That constitution started as the end product of a revolution against the tyrant George III.  But it has not developed so as to place the judiciary in much the same position of ultimate power once held by the hereditary magistrate in colonial times or not unlike that held by the Delphic oracle in the ancient Greek world.  And most ironically, the voice of the sovereign people is muted into inarticulate impotence once the judiciary has rendered an opinion declaring the matter before it of constitutional import, whether it is obscenity or other vastly more vital social policy problems.  This solution has forced the judiciary out of the realm of pure law, where it is strong, into the arena of policy and politics, where it is weak, but yet where its decisions have tremendous force on politics.  While the judicial process is a very finely finished instrument of the solution of purely legal controversies, for which it was fashioned, it is suggested it may be a dangerous or at best a most clumsy tool when used to solve problems of policy or politics.  Can there be rational doubt that there is a better method of finding a community standard as to obscenity (or solving other graver social problems) than this limited judicial process, and judges who are subjected to an almost endless stream of gaseous hot air and some smoke from counsel's arguments, briefs, records, ??? which swirl around judicial benches not unlike those gaseous volcanic emissions which developed the Delphic oracle of old?  Has not human knowledge, science and art of self-government made more substantial progress?

 The currently prevailing and controlling law as to obscenity has been laid down in two very recent decisions of he Court of Appeals, and in an equally recent series of United States Supreme Court decisions.  These decisions are clearly interrelated and collectively they have materially changed and lowered the legal standards as to obscenity which heretofore were recognized by the law.  The Court of Appeals decisions are People v. Bookcase, Inc. (N.Y.); Leo Larkin Corporation Counsel, et. al. v. Putnams' sons (N.Y.).  The decisions of the United States Supreme Court are Grove Press, Inc., v. Gerstein (U.S. June 22, 1964): Tralins v. Gerstein (U.S., June 22, 1964) Jacobellis v. Ohio (U.S. June, 1964).

 It is noted that to the majority holdings of the Court of Appeals there were strong cogent dissents by Chief Judge Desmond and Associate Judges Burke and Scileppi.  The stinging, scalding and caustic dissenting opinion of Chief Judge Desmond (Larkin v. Putnams Sons) the effect that "into the law itself there has come from nowhere a new constitutional theory which licenses the most unrelieved sexual filth" did not deter the majority of his court from holding that "we are bound," "must respect," "must follow" the decisions of the Supreme Court of the United States.

 In Larkin v. Putnams' Sons that court held that because "some cities" writers and teachers of stature testified at the trial: that the alleged obscene matter "has merit and the testimony as a whole showed differences of opinion as to its value-it does not warrant suppression" and apparently it was not obscene as a matter of law.  By this standard the performance which are the subject matter of this trail cannot be held to be obscene since indeed a number of critics, writers, publishers, ??? did testify that these performances did have critical merit thought there was the greatest diversity of opinion as to its critical values or indeed as to its comprehensivibility aside from its vulgarity.

 In the second very recent decision of the Court of Appeals, People v. Bookcase, Inc. it was held that a very recent statutory enactment designed to protect minors under eighteen years from the purveyors of pornography for profit of that "which exploits" is devoted to or is principally made up of descriptions of illicit sex or sexual immorality" namely Penal law 484B was unconstitutional as too vague for enforcement, the majority opinion used the words "so road and so obscene in its coverage as to abridge the constitutionally protected freedom."  That statute thus stricken down, was the result of a very long most intensive and careful legislative study by the legislature of New York State, and it was a far more precise and definite statute in its terms and provisions than the older broader termed and less explicit statute on which the prosecution in the Bruce case was based.  It that most precisely drafted statute is thus unconstitutional it must follow that the far less precise provisions of Penal Law 1140A are likewise unconstitutional.

 These most current high judicial pronouncements of the law as to obscenity have reduced legal obscenity to a negative nothingness and have rendered impotent the sovereign people, their duty elected representatives, prosecuting attorneys, law enforcement officials, trial courts and judges from taking any constructive action to protect the people or their children (and have in fact licensed) the purveyors of the vilest pornography for profit.  The monumental mountainous labor of the judiciary who have heard and written of obscenity in a vast articulation into a verbosity of millions of words has indeed produced a mouse-a nothingness which I dare to suggest cogently demonstrates the grave limitations of the judicial process and of judges in solving social policy problems outside their domain of pure law.

 It this nihilistic state of judge-made-law as to obscenity is found unsuited to the needs of the citizenry in their efforts to establish a more perfect society: that citizenry should not be unmindful of the fact that under the Constitution of the United States it is the citizenry who are the ultimate and final sovereign, not the Judiciary and that under the procedure provided in Article V of the constitution by the never yes used federal constitutional convention, the citizenry constitutionally have the fright and the power and the duty to find a more perfect expression of the law, and not only as to obscenity. 

Monologue given by defendant before adult nightclub audience and dealing, at least in part, with topics of social importance did not constitute giving of obscene performance in violation of statute. S.H.A. ch. 38, § 11-20.

Maurice Rosenfield and Harry Kalven, Jr., and William R. Ming, Jr., Chicago, for plaintiff in error.
William G. Clark, Atty. Gen., Springfield, and Daniel P. Ward, State's Atty., Chicago (Fred G. Leach and E. Michael O'Brien, Asst. Attys. Gen., and Elmer C. Kissane, William J. Martin, *460 and James R. Thompson, Asst. State's Attys., of counsel), for defendant in error.

PER CURIAM.

By an earlier opinion filed June 18, 1964, this court affirmed the judgment of the circuit court of Cook County entered upon a jury verdict finding the defendant herein guilty of giving an obscene performance violative of section 11-20 of the Criminal Code of 1961. (Ill.Rev.Stat.1961, chap. 38, par. 11-20.) On June 22, 1964, the Supreme Court of the United States decided Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793, in which a movie allegedly obscene was held not to be so. On July 7, 1964, the original opinion of this court was vacated, and reargument ordered in the light of Jacobellis.

The performance here consisted of a 55-minute monologue upon numerous socially controversial subjects interspersed with such unrelated topics as the meeting of a psychotic rapist and a nymphomaniac who have both escaped from their respective institutions, defendant's intimacies with three married women, and a supposed conversation with a gas station attendant in a rest room which concludes with the suggestion that the defendant and attendant both put on contraceptives and take a picture. The testimony was that defendant also made motions indicating masturbation and accompanied these with vulgar comments, and that persons leaving the audience were subjected to revolting questions and suggestions.

The entire performance was originally held by us to be characterized by its continual reference, by words and acts, to sexual intercourse or sexual organs in terms which ordinary adult individuals find thoroughly disgusting and revolting as well as patently offensive; that, as is evident from these brief summaries, it went beyond customary limits of candor, a fact which becomes even more apparent when the entire monologue is considered.

Our original opinion recognized defendant's right to satirize society's attitudes on contemporary social problems and to express his ideas, however bizarre, as long as the method used in doing so was not so objectionable as to render the entire performance obscene. Affirmance of the conviction was predicated upon the rule originally laid down in American Civil Liberties Union v. City of Chicago, 3 Ill.2d 334, 121 N.E.2d 585, that the obscene portions of the material must be balanced against its affirmative values to determine which predominates. We rejected defendant's argument that Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, struck down this balancing test and held that material, no matter how objectionable the method of its presentation, was constitutionally privileged unless it was utterly without redeeming social importance. It is apparent from the opinions of a majority of the court in Jacobellis that the 'balancing test' rule of American Civil Liberties Union is no longer a constitutionally acceptable method of determining whether material is obscene, and it is there made clear that material having any social importance is constitutionally protected.

While we would not have thought that constitutional guarantees necessitate the subjection of society to the gradual deterioration of its moral fabric which this type of presentation promotes, we must concede that some of the topics commented on by defendant are of social importance. Under Jacobellis the entire performance is thereby immunized, and we are constrained to hold that the judgment of the circuit court of Cook County must be reversed and defendant discharged.

Judgment reversed.

SCHAEFER, Justice (concurring).
The majority opinion seems to indicate that so long as any elements of a monologue have social value the entire speech is protected. I believe that this is too broad a formulation of the result in the Jacobellis case. The fact that some fragments relate to matters of social importance does not, in my opinion, always immunize the whole. But the major portion of this performance, before an adult night club audience, related to social problems, and most of the objectionable passages were integral parts of the protected material. Therefore I concur.
 

Appeal from Supreme Court, Appellate Term, First Judicial Department.

Defendant was convicted of presenting obscene performances in violation of the former Penal Law, Consol.Laws, c. 40, s 1140--a.
The Criminal Court of the City of New York, New York County, rendered judgment.
The Appellate Term entered an order which reversed on the law and the facts the judgment of the Criminal Court.
The People, by permission of an Associate Judge of the Court of Appeals, appealed to the Court of Appeals, and the defendant made a motion to dismiss the appeal, and the People made a cross-motion to remand case to Appellate Term.
The Court of Appeals, 24 N.Y.2d 772, 300 N.Y.S.2d 40, 247 N.E.2d 860, denied the motion and cross-motion.
Order affirmed.

All concur except BURKE, J., on the grounds expressed in the dissenting opinion by Judge Creel at the Criminal Court of the City of New York and JASEN, J., solely on constraint of A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Massachusetts, 383 U.S. 413, 419, 86 S.Ct. 975, 16 L.Ed.2d 1. 

SCILEPPI, J., who dissents and votes to reverse on the prevailing opinion at the Criminal Court of the City of New York.