"howl on trial: the battle for free expression" book review

fifty years ago, last october, a municipal court judge in san francisco wrote, "i conclude the book 'howl and other poems' does have some redeeming social importance, and i find the book is not obscene. the defendant is found not guilty." so ended the trial of allen ginsberg's poem "howl." together with publication of jack kerouac's novel "on the road" a month earlier, what we know today as the beat generation was launched into orbit. it's ironic that the effort to censor and suppress publication of howl directly contributed to it's increased notoriety and publicity.

"howl on trial: the battle for free expression", edited by bill morgan and nancy peters, presents a wealth of source material connected to the 1957 obscenity trial of howl (or more specifically, the trial of lawrence ferlinghetti and his clerk for selling howl). in addition to the full text of the poem, the editors include select ginsberg correspondence, newspaper coverage, an edited trial transcript, judge clayton horn's decision, and select post-trial coverage. i found the poem/trial related correspondence interesting, but the trial transcript was eye-opening!

as a lawyer, i've read a few trial transcripts in my time. i would rarely use the term eye-opening in connection with those reads. but here, reading verbatim the prosecutor's efforts to make the case "howl" was obscene would seem hilarious - if the stakes, vis a vis our civil liberties, weren't so high. in fact, even though the prosecutor's was case was ridiculously insufficient, and his trial skills bordered on inept, it was chilling prospect to image what the outcome would have been with a less sympathetic judge, a more skillful prosecutor, or even a jury!

the case was tried before judge horn, without a jury (a legal proceeding known as a "bench trial"). without a jury, each side, in essence, argues its position directly to the judge. while i wouldn't characterize judge horn as pro-defendant, he did make a few rulings benefiting the defense. the most important of which was he allowed experts to testify and give opinions on the merits of "howl." the prosecutor was not only unable to seriously challenge the testimony of the expert witnesses presented by the defense, he was unable to produce any meaningful expert witness of his own to rebut the defense witnesses.

judge horn issued his written decision 2 weeks after the conclusion of the trial. his opinion adopted the bulk of the defense's position. the rest, as they say, is history. "howl" is today considered a major work, by an major american poet. in keeping with the spirit of a question often asked during, but unanswerable at, the trial, "whether the work would stand up to the passage of time," history has provided the answer, and it is "yes."

but herein lies the problem. regardless of how history judged the literary merit of "howl," if the first amendment is to have any meaning, government can't be in the business of deciding what can or cannot be published. during the trial the prosecutor repeatedly asked the experts whether a different (less offensive) word could have been used in a give line, or stanza. all (including the judge) said a different word selection was possible - but then the poem would be something other than what the author intended!

this short (224 page) book is a great read for anyone interested in the first amendment or beat generation. as an interesting aside, four years later judge horn also presided over the obscenity trial of lenny bruce, a stand-up comedian. this case was tried before a jury - and bruce was acquitted. the chilling part, however, was a juror's post-verdict remark to the effect, "given the judge's instructions we had no choice but to acquit him!" the frightening thought is the jury seriously considered finding a stand-up comic guilty and putting him in jail for performing his act - to a paying audience!