Al Bendich, lawyer who defended Allen Ginsberg’s ‘Howl,’ dies at 85
In a San Francisco courthouse in 1957, a poem went on trial. It was Allen Ginsberg’s “Howl,” the incantatory, profanity-laced paean to self-expression that became the centerpiece of one of the most important obscenity cases of the last century.
Among those defending its publisher, the poet Lawrence Ferlinghetti, was 28-year-old Al Bendich, a soft-spoken attorney only two years out of UC Berkeley’s Boalt Hall.
He was the junior member of the legal team led by a seasoned attorney for the American Civil Liberties Union and a flashy criminal defense lawyer with a celebrity-laden clientele.
But Bendich, Ferlinghetti said, “was the one who won the trial.”
Bendich (pronounced BEN-dick), the last surviving member of the “Howl” defense team who would go on to successfully represent comic Lenny Bruce in another notable obscenity case, died Jan. 5 in Oakland. He was 85.
The longtime Berkeley resident, who later had a long career in the entertainment business as counsel to producer Saul Zaentz, had a heart attack at the gym, said his daughter, Nora Oldwin.
Bendich had been named staff counsel for the ACLU of Northern California in 1957, shortly before the “Howl” trial opened. He succeeded Lawrence Speiser, who headed the “Howl” defense along with Jake Ehrlich, a well-known criminal defense lawyer whose clients included Errol Flynn and Billie Holiday.
“Most of our defense time was taken up by Jake Ehrlich, who read endlessly from ‘Moll Flanders’ to prove there were earlier instances of obscenity,” Ferlinghetti told The Times last week. “On the last day, in the last hour of defense time, Al Bendich made the constitutional points upon which the case was won. His legal brief … won the case.”
“Howl” was a highly personal, often anguished statement (“I saw the best minds of my generation destroyed by madness…”), with many sexually explicit passages, particularly about homosexuality. It turned Ginsberg into a leading voice of the Beat generation.
Ferlinghetti, as owner of San Francisco’s City Lights Books, had published a pocket edition of the Ginsberg epic in 1956. After a shipment of the books was confiscated in 1957, he was arrested, along with his bookstore manager Shig Murao, for publishing and selling lewd material.
The case against them was bolstered by a recent U.S. Supreme Court ruling in Roth vs. United States, which held that obscene speech was not protected by the 1st Amendment.
Bendich’s job was to research and write the brief outlining the statutory and constitutional arguments to convince San Francisco Municipal Judge Clayton Horn that “Howl” was not obscene. That was a stiff challenge, not only because of the era’s conservatism but because of Horn, a Sunday school teacher known for ordering shoplifters to watch the Cecil B. DeMille film “The Ten Commandments” as part of their sentence.
Citing the high court’s language in the Roth case, Bendich’s 14-page memorandum argued that Horn’s first task was to decide whether the poem had any redeeming social value. If it did, Bendich reasoned, the judge would have to find Ferlinghetti and Murao not guilty.
The defense was aided by several prominent literary experts, who testified to the aesthetic merits of “Howl.” One of these was the poet and critic Kenneth Rexroth who, during Bendich’s direct examination, called Ginsberg’s work “probably the most remarkable single poem published by a young man” in the post-World War II years.
Bendich “marshaled piece after piece of powerful testimony from the defense’s expert witnesses to persuade Horn that ‘Howl’ must be viewed as having at least some literary merit,” Ronald K. L. Collins and David M. Skove wrote in a 2013 book about Ginsberg and the Beats. “And the young ACLU attorney did not forget the jurist’s penchant for Bible reading. Invoking the example of the Jewish prophet Hosea, he concluded: ‘Perhaps Ginsberg is a modern Hosea—only history will show whether, like Hosea, he will be considered a great social poet and critic. But it is obvious today that Ginsberg is saying much the same thing about society as Hosea was saying about Israel.’”
Horn handed down his decision on Oct. 3, 1957.
“In considering material claimed to be obscene it is well to remember the motto ‘Honi soit qui mal y pense’ [Evil to him who evil thinks]. Therefore, I conclude the book ‘Howl: And Other Poems’ does have some redeeming social importance, and I find the book is not obscene.”
“I do think Ehrlich and Speiser played an important role in getting Judge Horn in the mind-set to rule the way he did,” Collins, a University of Washington constitutional law expert, said in an interview. “But at the end of the day when Horn wrote the opinion he really relied heavily on what Al Bendich did. That’s why Al’s role is so significant.”
Poetry, Collins added, “ceased to be criminal after the ‘Howl’ trial. Never again was the publisher and seller of a poem taken to trial. It usually takes a Supreme Court decision to do that.”
Five years later, Bendich found himself before Judge Horn again, this time as Bruce’s lawyer.
Bruce had been arrested on obscenity charges in 1961 after his liberal use of sexually graphic language in a performance at a San Francisco nightclub.
“In the Lenny Bruce trial you see a slightly different Al Bendich,” said Collins. “Here he is the savvy trial lawyer. He knows how to cross-examine witnesses, he knows which witnesses to put on the stand. … And, most importantly, he knows how to write the jury instructions"—recommendations submitted to the court before the judge sends the jury into deliberations.
Judge Horn’s charge to the jury closely followed Bendich’s proposals, which stressed that foul language and vulgar behavior in themselves were not obscene and that aesthetic qualities can be socially redeeming..
Bruce was found innocent after 5-1/2 hours of deliberation by a jury that indicated in post-trial interviews it had been unsympathetic to the satirist’s artistic claims.
He was tried on obscenity charges three more times—in Los Angeles, New York and Chicago—but prevailed only in the San Francisco case.
Bendich was born in New York on June 18, 1929. His Russian immigrant father, Hyman, was a shirt ironer who later ran a dry goods store with his wife, Anna.
After the war, the family moved west. Bendich finished high school and attended junior college in Long Beach before transferring to UC Berkeley, where he earned bachelor’s and master’s degrees in economics and, in 1955, a law degree.
He taught rhetoric at UC Berkeley in the 1960s as the free speech movement heated up. “I remember Mario Savio coming to the house for dinner,” Oldwin said of the movement’s fiery leader.
Later that decade Bendich joined Zaentz’s Fantasy Records. When Zaentz decided to enter the movie business, he helped the producer secure the rights to the Ken Kesey novel “One Flew Over the Cuckoo’s Nest,” released in 1975. He remained at the Saul Zaentz Co. until his death.
Bendich’s first marriage, to Hilary Solomon, ended in divorce. In addition to Oldwin, he is survived by his second wife, Pamela; a son, Jonathan; daughters Bridget Bendich and Adrianne Keffeler; six grandchildren and two great-grandchildren.
“If poets reveal the deepest truths of ourselves to us, they also reveal what prevents us from realizing our humanity,” Bendich, who championed free speech throughout his life, said when receiving a civil liberties award several years ago. “And so poets must be free to think and feel and express themselves; and we must be free to hear them.”
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