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The Life and Career of Robert Corn-Revere

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Robert Corn-Revere, a noted First Amendment authority and a partner in the Washington, D.C. firm of Davis, Wright, Tremaine LLP, has made a career out of asking (and answering) a simple question: to what extent should the government determine that which falls within the realm of public interest? In cases such as United States v Playboy Entertainment Group, Corn-Revere has demonstrated time and time again that offensive speech not only can be, but must be uttered freely. And though the highest-profile victory of Corn-Revere's career - last week's overturning of Lenny Bruce's nearly forty year-old obscenity conviction - may have been more of a symbolic triumph than anything, it is still, in the words of UCLA Professor (and First Amendment authority) Eugene Volokh, "good symbolism, which should remind people that even speech that some find offensive is still constitutionally protected."

Ask Corn-Revere about the First Amendment and the history of regulation and he'll tell you a story about railroads, space shuttles, and the width of a horse's rear (or, more accurately, the width of two horses' rears). Corn-Revere maintains that regulation can not only inhibit natural growth, but is frequently rooted in statutes that are laughably archaic. In the case of railroads, Corn-Revere notes that the standard railroad gauge - the width between the two rails - is 4 feet, 8.5 inches. Corn-Revere goes on to trace the origins of this mandate all the way back to the roads built by Imperial Rome for its legion; apparently the measurement derives from the approximate width between the rear ends of two Roman war horses. The same holds true for the width between the two solid rocket boosters - called SRB's - that are attached to the main fuel tank. Again, the spacing is traced back to railroads, which are traced back to the Romans, and thus Corn-Revere concludes that "a major design feature of what is arguably the world's most advanced transportation system, was determined over two thousand years ago by the width of a horse's ass."


Though Corn-Revere acknowledges that some of this research is based on lore, his point is clear: regulation is frequently little more than an arbitrary set of rules established so long ago that nobody remembers how or why they were put into effect in the first place. And whereas everything from the airlines to the savings and loans have pointed to a need for the long hand of regulatory boards and committees, the arena of free speech manages to fall under the rubric of regulation through its inclusion in the public interest standard. Much in the same way medical marijuana advocates have questioned that drug's classification as a Class One narcotic, Corn-Revere has strong feelings about the need for free speech to be self-regulated. He points to the internet as a prime example of how free speech thrives in the marketplace, free of the constraints of regulatory boards, which do a disservice not only to public interest, but to capitalism as well. "Regulated industries tend to compete," Corn-Revere says, "most vigorously on paper as supplicants before an agency that will define the public interest, rather than as marketplace competitors who will prosper, or not, by whether they meet the public's needs and expectations." In short, the government's intent to service the public's interests more often than not ends up serving only its own — a fact no more evident than in Bruce's conviction on obscenity charges in 1964 and last week's subsequent, posthumous pardon by New York Governor George E. Pataki.

A First Amendment specialist is that rare attorney whose passion needs no personal motivation. He or she, by the very definition of their field of interest, is devoted to the preservation of the existential collective: put simply, we are what we say. Our opinions shape our values, and our values reflect our core essence. And while talk may be cheap, preserving it is anything but, as Lenny Bruce amply found out. Bruce, who had been targeted before due to his taboo-shattering routines about religion, sex, and racism, was performing his routine one night in 1964 at New York's Café Au Go Go. According to the testimony of several plainclothes police in attendance that night, Bruce employed the use of over 100 obscene words in his act which, despite being performed before consenting (and, from all accounts, enthusiastic) adults, led to his arrest on obscenity charges.

Which is where Corn-Revere and those of his ilk come in. For, as Corn-Revere, points out, "Admittedly… Bruce used blue words in his nightclub routines. But if truth be known, it was what Bruce said more than the profane way he put it that brought the force of the law down on him. And that is precisely the problem. If any law can be tapped to persecute people for what they think, then our entire system of freedom of expression can be sabotaged." And, as Justice Louis Brandeis put it in 1927, "freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth." It was the intent of Corn-Revere and those who rallied behind Bruce nearly forty years after his conviction - and thirty eight years after his death from a heroin overdose at the age of 40 - that Bruce's name and legacy would not be tarnished by a type of logic that seems, in retrospect, no more pertinent to society than the width of a horse's ass is to NASA.

The series of events that would ultimately lead to the overturning of Bruce's conviction began earlier this year, with the publication of Ronald K.L. Collins and David Skover's "The Trials of Lenny Bruce: The Fall and Rise of an American Icon." And although Bruce may not have reaped the full benefits of the First Amendment during his lifetime, the book's unabashed critique of his trials and the overzealous manner in which the government pursued his conviction renewed interest in his case. The two authors noted that while the conviction of Café Au Go Go owner Howard Solomon had been overturned, Bruce's was still on the record (part of this was due to Bruce's bizarre decision to act as his own counsel on appeal; Bruce "badly bungled" the case according to Martin Garbus, Bruce's attorney in his original misdemeanor obscenity conviction. Bruce was sentenced to four months in New York's Rikers Island, but instead fled to California and died two years later).

Collins and Skover contacted Corn-Revere, held a press conference on May 20, 2003 at the offices of the New York County Lawyer's Association, and presented a petition that was signed by several prominent attorneys, authors, professors, and entertainers. Corn-Revere, together with Collins, subsequently wrote an impassioned open letter to Pataki that appeared in the June 12, 2003 edition of New York's Newsday. Collins and Corn-Revere quoted Robert Morgenthau, the District Attorney in 1974, who said that the case was tried "against the advice of the obscenity experts in the (prosecutor's) office, who (argued) there was no case." Claiming that an abuse of process had led to the First Amendment being abridged, Collins and Corn-Revere implored Governor Pataki to grant Bruce a posthumous pardon. Pataki, in a statement, hailed the pardon as "a declaration of New York's commitment to upholding the First Amendment. I hope this pardon serves as a reminder of the precious freedoms we are fighting to preserve as we continue to wage the war on terror."

A satisfying victory, and a precedent-setting one for today's social commentators, musicians, spokespeople and comedians. A dark chapter in our nation's past has at last been expunged. And yet the First Amendment has found an entire new generation of foes in an era of corporate sponsorship, coordinated public relations, shifting media priorities and that most tired of modern-day tyrants: the legions of the politically correct. For while Rush Limbaugh will serve no jail time in the wake of his racially-tinged comments about Philadelphia Eagles quarterback Donovan McNabb a few months ago, it is hard to convincingly argue that he was granted his full range of rights within the First Amendment when he was fired shortly thereafter.

Still, that Pataki pardoned Lenny Bruce is to his immense credit. That Pataki subsequently likened his pardon of Bruce to protecting the kinds of freedoms we are currently fighting for in the wake of 9-11 is bizarre; as Garbus put it, "Lenny would be astonished that the governor had pardoned him in a manner that somehow justified America's war on terrorism. If he was alive, he'd build a whole comedy routine around that."

Which, tragically, should have been his right.

Davis Wright Tremaine LLP

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