by Sanders, Ed
d. a. went into hiding but on January 16 turned himself over and was released on bail. Then on March 28 d. a. was rearrested and charged on five counts of contributing to the delinquency of minors because at the Gate, he had read obscenity to a fifteen-year-old girl and a seventeen-year-old boy. The lad’s parents had discovered a poster in his room and complained to the police. “Specifically,” the Plain Dealer reported, “Levy is charged with accepting immoral and indecent poetry from the boy and publishing it, as well as reading and distributing it at the coffee house.”
Levy pleaded not guilty. The judge insulted levy by asking how much he earned a day. levy answered, “I sell poetry for 89 cents a day.” The judge set bail at $2,500 while cracking, “Maybe you should charge more than 89 cents.”
Case Western Reserve law professors and students held a picket line, some holding “Legalize levy” protest signs, outside the Criminal Court Building. All this led to The Fugs and Allen Ginsberg coming to Cleveland on May 13 to do a benefit to help pay for levy’s many expenses.
When The Fugs and Ginsberg landed in Cleveland on the day of the concert, straight from our success at the stock pavilion in Madison, I went with Allen Ginsberg, d. a. levy, and about fifty supporters to the basement of Trinity Cathedral. The police were on hand, and we were told that we would be arrested if we read poetry, so we decided to sing. We lifted forth the anthem “We Shall Overcome” and, at Ginsberg’s suggestion, a few rounds of “Hare Krishna,” which we had recorded for the new Fugs album that had just been nixed by Atlantic Records.
“Who’s in charge here?” Allen Ginsberg asked of the police in the cathedral’s basement.
“Nobody’s in charge” was the response.
As I recall, the concert raised about $1,500 for levy’s costs. levy continued to publish the Marrahwannah Quarterly and began an underground newspaper, the Buddhist Third Class Junkmail Oracle. Decades later when a friend of mine interviewed levy’s prosecutor, he couldn’t even remember the case.
On May 14 we flew back to New York, where it was time to face my own court case.
The Fugs Performing with Andrei Voznesensky at the Village Theater
Before my trial began, I met brilliant Russian poet Andrei Voznesensky during his visit to the States for some readings. Andrei was staying at the Chelsea Hotel on West Twenty-third Street.
One evening Voznesensky came to Allen Ginsberg and Peter Orlovsky’s apartment on East Tenth, between Avenues C and D. I stopped by that night, and we were watching a critical documentary on the FBI, on television. “You mean,” exclaimed Voznesensky, his eyes widening with surprise, “you can criticize the Secret Police on television!?”
“Sure,” I replied. “Fuck them.”
On May 18 Voznesensky took part in an anti–Vietnam War reading at the Village Theater (later the Fillmore East) located on Second Avenue at Sixth Street. I recall how strongly he performed his poetry, standing with his legs apart and reciting from memory. It was a brave thing for him to do, to take a stance against a U.S. war. Others reading that night included Ted Berrigan, John Ashbery, Gil Sorrentino, Sam Abrams, Jerry Rothenberg, Gregory Corso, Paul Blackburn, Joel Oppenheimer, Robert Creeley, Jackson MacLow, and Clayton Eshleman. The Fugs performed at the close of both sets of the performance.
Not many days later Voznesensky was seized from the streets. The way I heard it at the time was that filmmaker Barbara Rubin was showing Voznesensky a synagogue in the Lower East Side when, all of a sudden, he was whisked away by Soviet security types and flown back to Moscow.
In June 1967, just a couple of weeks after the whisk-away, Voznesensky was scheduled to read at a poetry festival at Lincoln Center, but the Moscow Writers Union kept him from appearing. According to a New York Times account, the reason was “the open friendship that he showed to American society and American writers during his tour of the United States last May.”
A Mood of Personal Defiance Following Court Hearing
Meanwhile, my own seemingly incessant court appearances for the Peace Eye/F.Y. bust, now going on for almost a year and a half, was dragging onward. As the months surged past, I was feeling more and more defiant. I was suffering court appearance after court appearance. I was required to show up at every one, lest I have my bail revoked and risk being jailed. For one of my hearings I arrived dressed all in white—white shirt, white tie, white boots, white suit (with Eyes of Horus painted on the lapels). This sartorial statement in white went by okay with the rather stern and death-aura’d judge named William Ringel.
But then for the next hearing I showed up attired entirely in red: new red satin Tom Jones shirt, red jacket, red corduroy pants, red Corfam shoes, and red socks. It was the outfit I had worn during my psilocybin adventure with Weaver and Olson in Gloucester.
The judge, again the grouchy guy named Ringel, was not pleased with my spiffy, all-rubicund attire. “Young man!” he practically screamed, “this is not a ski lodge! The next time you come to court wearing a proper suit and tie!”
“Yes, sir,” I replied, while mentally telling him to take a walk down Vomit Alley waving a sponge!
During the hearings there were several ACLU attorneys who worked on my case. My attorney as we went to trial was Ernst Rosenberger. I was very impressed with him. Ernst, I learned, was very active in the civil rights movement. He’d been a volunteer attorney defending Freedom Riders arrested in Jackson, Mississippi, in 1961, and he was taking part in voting rights cases in the South throughout much of the decade. Later he became a State Supreme Court justice and then an associate justice of the New York Supreme Court Appellate Division.
Just a few days after the benefit for d. a. levy and the big antiwar reading at the Village Theater, my trial from the Peace Eye Raid of almost seventeen months previous was about to begin.
The Fuck You Trial
One of our plans was to wait for a correct trio of judges. And so as we went into the hearing at 100 Centre Street on May 22, Rosenberger analyzed the judges and decided we were ready for trial. My judges were William Ringel, Mitchell Sherwin, and Daniel Hoffman.
I was not so certain. I was particularly worried about the baleful Ringel, who, at a previous hearing, had ruled against a motion by Rosenberger to suppress the evidence in the case as having been gathered in violation of the Fourth Amendment, that is, with improper search and seizure.
I called my expert witnesses from the lobby of the court building. They were two eminent poets, Kenneth Koch and John Ashbery. I located Koch at his tennis court and so he showed up in court with a tennis racket. Both waited in the courtroom during the trial. The prosecutor was Assistant District Attorney John J. Moyna. One indication that we might sail through this nightmare occurred when I heard Moyna, while reading the indictment, pronounce “lascivious” as “láhshivous,” with accent on the first syllable. Another thing that looked good: None of my judges had been on the trio ( John Murtagh, Kenneth Phipps, and James Randall Creel) who had convicted Lenny Bruce back in 1964.
And so it began.
The assistant district attorney had a unique prosecution strategy. He decided that my announcements about certain of my underground films and some satiric advertising I typed and drew into the magazine provided proof I had violated the law regarding obscenity. Satire and reality sometimes reside in the same part of the brain, at least in my prosecutor’s.
The only prosecution witness was Sergeant Charles Fetta, who by trial time had been transferred to the 111th Precinct in Bayside, Queens. Moyna elicited from the sergeant the time line of the arrest. Fetta was not asked about looking for Akh-en-Aten’s “Hymn to the Sun Disk” on my testicles.
Prosecutor Offended by Lady Dickhead Advertising Company
The prosecution entered only five exhibits to show my malicious and evil intent to expose the literati of America to smutty advertisements and editorial comments. ADA Moyna began, “Now, if the Court please, I would invite the Court’s inspection to certain parts of People’s Exhibit #1, #2, #3, #4, respectivel
y. The position of the People is that not the entire magazine is pornographic. We concede that, but that there are certain advertisements herein which advertise hard-core pornography and I would invite . . . the Court to inspect the exhibits right now.”
Rosenberger then commented, “Do I understand from your statement, Mr. Moyna, that what you are offering in evidence is not the entire magazine but only those sections to which you now draw the Court’s attention?”
Judge Ringel then interjected, “No, that’s not what he’s saying. As we understand Mr. Moyna, certain parts or portions of these exhibits are pornographic and the People do not contend that all of it is pornographic.”
ADA Moyna agreed. He was contending that satiric advertisements in a mimeographed underground magazine were the core of the smut case: “Specifically, the advertisements, Your Honor, they violate Section 1141.”
(Section 1141 of the New York State Penal Code reads, “A person who sells, lends, gives away, distributes or shows, or offers to sell, lend, give away, distribute, or show, or has in his possession with intent to sell, lend, distribute or give away, or to show, or advertises in any manner, or who otherwise offers for loan, gift, sale or distribution, any obscene, lewd, lascivious, filthy, indecent or disgusting book, magazine, pamphlet, newspaper, story paper, writing, paper, picture, drawing, photograph, figure or image, or any written or printed matter of an indecent character . . . is guilty of a misdemeanor.”)
The prosecution was counting on the word “advertises” to nail me into the slams! I couldn’t believe it! I was having a bit of difficulty following the line of reasoning , but as the prosecutor read into the record my so-called advertising, I had a hard time keeping from guffawing out loud.
Ringel then asked Moyna to “specify just what you are claiming is pornography.” It was time for the Lady Dickhead Advertising Company to appear for the first time in the court cases of Western civilization.
The assistant district attorney then read the following, as interpreted by the court reporter: “People’s Exhibit #1 is purple-colored 8 ½ x 11 sheet which reads ‘Fuck You Magazine of the Arts, Promoting Pornography through its subsidiary Ladies Dick-Head Advertising Company.”
I recalled it as among the pages the tremble-handed sergeant had thrust toward my face in the dawn of Peace Eye when I was trying to nail shut the broken window and door.
It seemed to me, watching it all from the defense table, that the prosecution was not presenting its strongest case. W. H. Auden’s “Platonic Blow,” which I published in the issue with the Warhol cover, was much more erotic than, say, the Lady Dickhead ad, any day. I’d also published it as a Fuck You Press pamphlet, and I had watched with regret as the police hauled away from the Peace Eye raid thousands of future dollars worth of copies.
The innocent-looking cover of the W. H. Auden–F.Y./ Press torrid “Platonic Blow”
Moyna continued: “People’s Exhibit #2 is a yellow 8 ½ x 11 sheet and I quote the part that we contend is pornography or at least the advertisement that is pornography. This is approximately half-way down the page: ‘For the next issue of Fuck You Magazine of the Arts, we would like to have a sister fold photograph of a Fuck-Maid of the Century. .What we want is a large photo of a couple fucking, done in color, preferably, in order to show the tit-free magazine. . . . So all photographers who have some fuck photos, please have them sent to Ed Sanders.”
Compare this transcript with the actual “ad”:
Ad from the district attorney’s case (the number 2 at the lower left denotes this page as being Exhibit #2).
Moyna did not mention the sentence “FUCK YOU/ the magazine of GRASS-SMUGGLING.”
Then Moyna read onward: “People’s Exhibit # 3, specifically we invite the Court’s attention to the eighth page entitled, ‘Advertisements,’ and the first in the top left-hand corner, the column beginning in the top left-hand corner part of the page it reads as follows: ‘One orgie asks for the movie—now being shot on the location on the Lower East Side. Scenes being filled require large numbers of rope specialists and especially young ladies snapping pussy for snook freegin.’”
Ad from volume 5, number 7, the “God” issue, with cover by noted Beat-era artist Robert LaVigne.
Then came time for People’s Exhibit #4, as Moyna interpreted it, gazing at a page of the magazine: “The fifth page entitled the ‘Talk of the Town,’ reading as follows, at the lower righthand corner of the page, the paragraph which begins with the numeral 2, ‘The editorial board of Fuck You Magazine of the Arts announces its first movie making venture, the Mongolian Cluster Fuck, a short but searing, nonsocial redeeming pornographic featuring a hundred of the lowest east side finest musical ballroom, Charles Swingbeard and Fuck, etc.”
Charles Swingbeard! I bet the ghost of A. C. Swinburne was chuckling above his grave! And the world was not quite ready, probably still isn’t, for a rock band called Fuck.
There was not a single question regarding the exhortation “TOE QUEENS, ARISE!” Then Moyna announced, “That constitutes the People’s case.”
Judge Ringel pointed out that there were five exhibits and only four had been described for the record.
Moyna then brought forth People’s Exhibit #5, Jack Smith’s The Beautiful Book, which consisted of a series of photos from Flaming Creatures pasted onto a sequence of pages. “We argue,” he said, “that each picture herein is pornographic.”
Ringel: Each picture is pornographic, that’s your contention?
Moyna: That’s our contention.
Cover of Jack Smith’s The Beautiful Book, silkscreened and designed by Marian Zazeela (note court stamp in upper right: “Defs-Peo Exh. #5”).
The oi was oi-ing in the Oi.
Opposite are a couple of sample pages from The Beautiful Book.
About half of the pictures in The Beautiful Book are of cover designer Marian Zazeela. The judges seemed of the opinion that at least one snap was smutiferous. I couldn’t figure out the one to which they were alluding.
I had a few copies of The Beautiful Book at Peace Eye. Somehow they all disappeared, a sad situation because the publication featured nineteen hand-tipped black-and-white contact prints of photos taken in Smith’s Lower East Side apartment, mostly from the winter of 1962, not long before Smith filmed Flaming Creatures. The book also included a famous snap of Smith beneath the Brooklyn Bridge taken by Ken Jacobs. Piero Heliczer, who had starred in the “Dance of the Bugger Ball” sequence I shot for Mongolian Cluster Fuck at the Dakota, had published The Beautiful Book, which sold for $4 in 1966. Now it’s worth about $10,000—one reason I wish the fuzz had not carted my copies away to the Ninth Precinct!
Meanwhile, there was more fliffle. And more floffle relating to this and that. Then the prosecution rested, and it was time for my defense. Kenneth Koch and John Ashbery were in the courtroom, ready to testify.
My able attorney, Ernst Rosenberger, began my defense. The first thing he did was to make a motion to dismiss the charges. He attempted to present arguments to back up the motion, but the irascible Judge Ringel kept breaking in.
Rosenberger: Your honor, at the conclusion of the People’s case, the defendant respectfully moves to dismiss on the grounds that the People have failed to make out a prima facie case as against him. This is on several grounds, your honor, and which I would like to go into. . . .
Ringel: Tell your client to sit down.
Rosenberger: which I would like to go into, serially.
Ringel: Go ahead.
Rosenberger: First, Your Honor, as to no piece of evidence before the Court is there more than one item. There are only five items offered and they are five separate items. However, in the absence of any sale, specifically, the statute requires possession of six identical items.
Rosenberger had them! They did not have six copies in evidence of “The Lady Dickhead Advertising Company” or any proof of actual sale of anything.
Ringel said, “Let me see (Section) 1141, please.”
Next
there was a discussion of Jack Smith’s The Beautiful Book. Moyna had claimed that all the pictures in Smith’s book were illegal smut.
Rosenberger asserted, “It’s our contention, Your Honor, that that booklet (Beautiful Book) constitutes one book. And that you cannot take each page of a book as a separate item but where a book is offered that book must be viewed as a book. It must be viewed as a book in considering it as a whole and as the Supreme Court has laid down guidelines for cases involving free speech, any work must be viewed as a whole. You cannot view one page of this and one page of that as being separate items.”
Rosenberger read from the Eros magazine case (Eros was published by Ralph Ginzburg, who was indicted by the feds, and the case went to the Supreme Court) in which the U.S. Supreme Court took note of the considerable testimony on pandering. But in the Peace Eye/Fuck You case there was no pandering.
“The Supreme Court,” pointed out Rosenberger, “in case after case has held that the work must be utterly without redeeming social value and the only exception which the court has permitted to that is a case in which the evidence proves beyond a reasonable doubt a pattern of pandering. . . . Your Honor this record [The Peace Eye trial] is silent on any of those considerations. . . . There is no evidence of pandering. These works must be judged on their own as to a prima facie case whether the isolated portions which are submitted and the People have conceded that the entire works are not without redeeming social value, are not totally obscene. Your Honor, based on that, we submit that the People have failed in establishing a prima facie case.”
