SOURCE: Pagnattaro, Marisa Anne. “Carving a Literary Exception: The Obscenity Standard and Ulysses.” Twentieth-Century Literature 47, no. 2 (summer 2001): 217-40.

[In the following essay, Pagnattaro discusses the legal definitions of obscenity confronted by James Joyce's 1922 novel Ulysses when its publication was challenged by U.S. courts.]

What did I tell you? raged Quinn. You're damned fools trying to get away with such a thing as “Ulysses” in this puritan-ridden country. … I don't think that anything can be done. I'll fight for you, but it's a lost cause. You're idiots, both of you. … You haven't an ounce of sense.

—Margaret Anderson, My Thirty Years' War (215)

As it turns out, great patron of the arts and prima donna lawyer John Quinn was right. Well, partly right. In 1921, Margaret Anderson and Jane Heap were convicted of publishing “indecent matter”¹ in The Little Review—the concluding part of “Nausicaa,” the thirteenth episode of Ulysses, in which Gerty MacDowell deliberately strikes a provocative pose for the concupiscent Leopold Bloom—and fined ＄50 each (Anderson, Thirty Years' War 221). Attempting to buttress the standing of The Little Review, Quinn produced three literary experts as witnesses to “testify that Ulysses in their opinion would not corrupt” readers (Anderson, “‘Ulysses’ in Court” 22). The opinions of John Cowper Powys, Philip Moeller, and Scofield Thayer were, however, of little consequence. The spirit of John Sumner, the head of the New York Society for the Suppression of Vice, was to prevail. The panel of three judges was concerned only with a narrow question: whether certain passages of Ulysses could be deemed legally obscene under New York law. The conviction came as no surprise, as the decision was made by merely reviewing isolated portions of the text considered wholly apart from the literary merit of Ulysses. What Quinn did not foresee, however, was the ultimate vindication of Ulysses in the federal courts by judges who implicitly agreed with Anderson that “the words ‘literature’ and ‘obscenity’ can not be used in conjunction any more than the words ‘science’ and ‘immorality’ can” (“‘Ulysses’ in Court” 22). First Amendment advocates Morris Ernst and Alexander Lindey of Greenbaum, Wolff & Ernst strategically used Ulysses to change the obscenity standard of all literature. The intellectual significance of Ulysses was the catalyst for what has essentially become an exception to obscenity laws for literary works.

THE DEVELOPMENT OF THE LAW: A SAMPLING OF CENSORSHIP CASES PRECEDING THE ANDERSON AND HEAP PROSECUTION

What likely happened to Margaret Anderson and Jane Heap was that they fell victim to the court's use of an obscenity standard first enunciated in the English case Regina v. Hicklin in 1868. In Hicklin, the text under consideration was The Confession Unmasked; Shewing of the Depravity of the Romish Priesthood, the Iniquity of the Confessional, and the Questions Put to Females in Confession, a diatribe alleging moral shortcomings of the Catholic Church. According to the court, about half of the pamphlet related to “casuistical and controversial questions which are not obscene, but the remainder of the pamphlet is obscene in fact as relating to impure and filthy acts, words, and ideas” (363). As part of the determination that the pamphlet was obscene, Lord Chief Justice Cockburn articulated the “test of obscenity” as

whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.

(371)

With regard to the work in question, the court determined that “it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character” (371). This harsh rule became the nemesis of free-speech advocates. As one outraged court in Pennsylvania observed, this rule, if strictly applied, “renders any book unsafe, since a moron could pervert to some sexual fantasy to which his mind is open the listings in a seed catalogue. Not even the Bible would be exempt” (Commonwealth v. Gordon 124).²

To the dismay of First Amendment advocates, Hicklin found its way into American jurisprudence. In United States v. Bennett, the appellate court upheld a trial court's charge to the jury that tracked the Hicklin obscenity test. The appellate court concluded that the trial judge did not err in his charge that the jurors should “apply this test to these marked passages, and, if, judged by this test you find any of them obscene or of an indecent character, it will be your duty to find the prisoner guilty” (Bennett 1104). In justifying the application of the obscenity test to mere passages instead of considering the text as a whole, the court relied on an earlier case that held: “A book, to be obscene, need not be obscene throughout the whole of its contents, but, if the book is obscene, lewd, or lascivious or indecent in whole or in part, it is an obscene book within the meaning of the law” (1104). Accordingly, the trial court's adjudication that the book Cupid's Yokes, or the Binding Forces of Conjugal Life is obscene was upheld.

Less than 20 years later, upon reviewing a jury charge on obscenity that restated the Hicklin standard, the Supreme Court gave its implicit endorsement, commenting that “the test prescribed for the jury was quite as liberal as the defendant had any right to demand” (Rosen v. United States 43). In fact, the mark of Hicklin can be seen well into the first part of the twentieth century, especially in Massachusetts, where the courts repeatedly deemed works of literature obscene. For example, the court banned the book titled Three Weeks because it was obscene and “tended to corrupt the morals of youth” (Commonwealth v. Buckley 911). Buckley was then cited by later cases such as Commonwealth v. Friede to support a ban on Theodore Dreiser's American Tragedy. In Friede, the court found no error in the trial court's jury charge that a verdict of guilty must be returned “if these pages that are complained of, the language that is set out in the bill of particulars, is in your mind obscene, impure, indecent, and manifestly tending to the corruption of youth” and that it “makes no difference what the object in writing this book was, or what its whole tone is”—a standard that echoed the holding in Hicklin (Friede 474).

At the same time that censorship was flourishing in Massachusetts, there were also courts that began to question the Hicklin doctrine. In United States v. Kennerley, Judge Learned Hand felt compelled to overrule a demurrer to an indictment for obscenity against the publisher of Hagar Revelly, a “novel of manners presenting the life of a young woman in New York compelled to earn her living … who has several amorous misadventures and ends with a loveless marriage and the prospect of a dreary future” (119). With reservation, the judge sent the case on to the jury, conceding that inasmuch as the Hicklin “test has been accepted by the lower federal courts” the pages of the book in question “might be found obscene, because they certainly might tend to corrupt the morals of those into whose hands it might come and whose minds were open to such immoral influences” (120). Notwithstanding this decision, and mindful that “to give a complete portrayal to the girl's emotional character, some of the scenes [were] depicted with a frankness of detail” that gave rise to the prosecution, Judge Hand seized the opportunity to question the wisdom of the law:

I hope it is not improper for me to say that the rule as laid down, however consonant with mid-Victorian morals, does not seem to me to answer to the understanding and morality of the present time, as conveyed by the words, “obscene, lewd, or lascivious.” I question whether in the end men will regard that as obscene which is honestly relevant to the expression of human ideas, and whether they will not believe that truth and beauty are too precious to society at large to be mutilated in the interests of those most likely to pervert them to base uses.

(120-21)

The judge continued, expressing his concern about the position of literature:

it seems hardly likely that we are even today so lukewarm in our interests in letters or serious discussion as to be content to reduce our treatment of sex to the standard of a child's library in the supposed interest of a salacious few, or that shame will for long prevent us from adequate portrayal of some of the most serious and beautiful sides of human nature.

(121)

In his final statement against Hicklin, Judge Hand admonished: “To put thought in leash to the average conscience of the time is perhaps tolerable, but to fetter it by the necessities of the lowest and least capable seems a fatal policy” (121). In a fitting conclusion, Kennerley was subsequently acquitted by a jury (Bruccoli 73).

A few years later, Augustus Hand (Learned's cousin) presided over a literary censorship case in which he maintained that classic literature should be immune from prosecution. In this case, the postmaster of New York censored distribution of the October 1917 issue of The Little Review containing Wyndham Lewis's story “Cantleman's Spring Mate” on the ground that it was “nonmailable” under Section 211 of the U.S. Criminal Code:

Every obscene, lewd, or lascivious, and every filthy book, pamphlet writing or other publication of an indecent character is hereby declared nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.

Judge Hand's summary of the events in the story lays the foundation for his ultimate refusal to allow Lewis's work to be distributed. It is a tale

about a soldier in the British Army who reflects upon the topsy-turvy condition of the world and feels that gigantic forces, which he is pleased to call those of nature, are arrayed against the individual—forces that in most cases will overpower him. He regards his own destruction in the present European conflict as more than likely, and under all these conditions feels at war with the world. With satirical satisfaction he seduces a young girl and disregards her appeals when she becomes a mother. In his revolt at the confusion and injustice of the war he feels justification at having wreaked his will and obtained satisfaction—thus, as he says, outwitting nature.

(qtd. in Anderson, “Judicial Opinion” 47)

Particularity objectionable to Judge Hand was the fact that the “details of the sex relations are set forth to attract readers to the story because of their salacious character” (47). Even though Judge Hand concedes that “mere description of irregular things in relation to sex may not fall within the statute,” that “no field of administration requires better judgment or more circumspection to avoid interference with a justifiable freedom of expression and literary development,” and that “numerous really great writings would come under the ban if tests that are frequently current were applied, and these approved publications doubtless at times escape only because they come within the term ‘classics,’” he upheld the postmaster's decision.

Emphasizing the literary merit of “Cantleman's Spring Mate,” Margaret Anderson immediately published her “complete disagreement” with the decision (“Judicial Opinion” 48-49). A few months later, Ezra Pound (the foreign editor of The Little Review) expressed his outrage at the shortsightedness of the judicial opinion. As Pound points out, under this “classics” standard, “there are to be no additions. No living man is to contribute or to attempt to contribute to the classics. Obviously even though he acquire fame before publishing, he can not have the sanction of ‘age’” (34).

Learned Hand and Augustus Hand were not the only judges who admired the “classics” and wanted to preserve freedom of expression in literature. In at least two early instances, New York state courts refused to adjudicate classic works of literature obscene. In 1894, the trial court permitted a number of valuable books, including John Payne's translation of Arabian Nights, Henry Fielding's Tom Jones, works of Rabelais, Ovid's Art of Love, the Decameron of Boccaccio, the Heptameron of Queen Margaret of Navarre, and the Confessions of Jean-Jacques Rousseau, to be sold for the benefit of the creditors of a receivership. Rejecting the argument that the books should be excluded from the sale as “immoral literature,” the court found that it would be a “wanton destruction of property to prohibit the sale by the receiver of these works,—for if their sale ought to be prohibited, the books should be burned” and he saw “no reason in law, morals, or expediency why they should not be sold for the benefit of the creditors of the receivership” (In re Worthington 363). In reaching his decision, Judge O'Brien elaborated:

It is very difficult to see upon what theory these world-renown classics can be regarded as specimens of that pornographic literature which it is the office for the Society for the Suppression of Vice to suppress, or how they can come under any stronger condemnation than that high standard of literature which consists of the works of Shakespeare, of Chaucer, of Laurence Sterne, and of other great English writers, without making reference to many parts of the Old Testament Scriptures, which are to be found in almost every household in the land.

(362)

This sentiment was echoed 15 years later in another civil action in which a Manhattan court stated that the “rule against the sale of immoral publications cannot be invoked against those works which have been generally recognized as literary classics” (St. Hubert Guild v. Quinn 586). Accordingly, the court upheld a contract for the sale of 42 volumes of the works of Voltaire. In dicta, however, the court added a caveat: “Contemporaneous literature must, of course, be judged by current opinion, and the test to be applied does not require the testimony of experts, but is one falling within the range of ordinary intelligence” (586). These two cases in which classics were spared the censor's hand marked an important beginning for the special consideration of works of literature.

Unfortunately for Anderson and Heap, however, the court was not swayed by Judge Hand's musings about free expression or moved by the suggestion that Ulysses was a prose masterpiece. In response to attorney John Quinn's 30-minute statement about the merits of Joyce's work, including his tactical admission that he did “not understand Ulysses” and his suggestion that “Joyce has carried his method too far in this experiment,” one judge groaned “Yes … it sounds to me like the ravings of a disordered mind—I can't see why any one would want to publish it” (qtd. in Anderson, “‘Ulysses’ in Court” 24). Moreover, in a gesture of “protective paternity” directed at Anderson, one of the judges refused to allow allegedly obscene portions of Ulysses to be read during the proceeding. When Quinn reminded the judge that Anderson was the publisher, the judge responded, “I'm sure she didn't know the significance of what she was publishing” (qtd. in Anderson, My Thirty Years' War 221). Thoroughly unpersuaded about and uninterested in the literary value of Ulysses, this panel of judges was merely interested in performing the ministerial function of determining whether isolated passages did, indeed, violate the obscenity statute.

THE TURNING OF THE TIDE: THE JUDICIAL REFUSAL TO ADJUDICATE CERTAIN NONCLASSIC WORKS OBSCENE

During the 1920s and early 1930s, state and federal courts in New York began to broaden the protection afforded to literature, and, seeing an opening, booksellers began to fight back. In one notorious case, Raymond Halsey sold a copy of an English translation of Théophile Gautier's Mademoiselle de Maupin to an agent of the New York Society for the Suppression of Vice. After a jury apparently found that the book was not obscene or indecent and acquitted Halsey of any wrongdoing, the defendant promptly filed an action for malicious prosecution against the society. Once again, a jury found in favor of Halsey. On appeal, New York's highest court affirmed the decision, making an important statement about how works under attack should be judged:

No work may be judged from a selection of such paragraphs alone. Printed by themselves they might, as a matter of law, come within the prohibition of the statute. So might a similar selection from Aristophanes or Chaucer or Boccaccio, or even the Bible. The book, however, must be considered broadly, as a whole.

(Halsey v. New York Society 4)

The court's decision to view Mademoiselle de Maupin as a whole marks an important shift in the way a work of literature should be evaluated under the obscenity statute.

With the help of Morris Ernst and Alexander Lindey, the attorneys who would shortly represent Random House in the Ulysses case, three matters in the federal court of New York continued to tighten the circumscription of obscenity.³ In the first case, Mary Dennett, a mother of two boys who was dissatisfied with the available literature on sexual matters, wrote a pamphlet entitled Sex Side of Life. Limited distribution of the pamphlet proved so popular that Dennett published the work and began selling copies, receiving orders from such entities as the Union Theological Seminary, Young Men's Christian Association, Young Women's Christian Association, the public health departments of various states, and over 400 other organizations, clergymen, and doctors (United States v. Dennett). Dennett was convicted of mailing obscene material in violation of federal law (Mailing Obscene Matter), but on appeal, the conviction was reversed. Delivering the opinion for the court, Judge Augustus Hand reiterated a slightly reformulated Hicklin standard from earlier cases: “whether it would tend to deprave the morals of those into whose hands the publication might fall by suggesting lewd thoughts and exciting sensual desires” (Dennett 568, citing, inter alia, Dunlap v. United States). After acknowledging that “any article dealing with the sex side of life and explaining the functions of the sex organs is capable in some circumstances of arousing lust,” the court found that the risk of “imparting instruction” to the young did not outweigh the “disadvantages of leaving them to grope about in mystery and morbid curiosity and of requiring them to secure such information … from ill-informed and often foul-minded companions” (Dennett 568). Reversing the judgment against Dennett, the Second Circuit stated that her “discussion of the phenomena of sex” tends to rationalize and “dignify such emotions rather than to arouse lust” and that “an accurate exposition of the relevant facts of the sex side of life in decent language and in manifestly serious and disinterested spirit cannot ordinarily be regarded as obscene” (569). Significantly, this case marked the beginnings of an exception to the obscenity statute for scientific works.

In like spirit, district court judge John M. Woolsey dismissed two obscenity cases in the Southern District of New York against Dr. Marie C. Stopes. Both actions were commenced under the Tariff Act of 1930, which prohibited the importation of “any obscene book, pamphlet, paper, writing, advertisement, circular, print, pictures, drawing, or other representation, figure, or image on or of paper or other material … which is obscene or immoral” (emphasis added). The first book at issue, Married Love, was described by Judge Woolsey as a “considered attempt to explain to married people how their mutual sex life may be made happier” (United States v. One Obscene Book Titled “Married Love” 824). Because Judge Kirkpatrick, a federal judge for the Eastern District of Pennsylvania, had already deemed Married Love not obscene, Judge Woolsey asserted that this adjudication barred the proceeding and, furthermore, held that the “decision established the book Married Love as having an admissible status at any point around the customs barriers of the United States” (823). The judge, however, did not stop there; ignoring previous case law, he began paving the way for a new judicial standard. Judge Woolsey offered the definitions of obscene and immoral from Murray's Oxford English Dictionary:

Obscene—1. Offensive to the senses, or to taste or refinement; disgusting, repulsive, filthy, foul, abominable, loathsome. Now somewhat arch.

2. Offensive to modesty or decency; expressing or suggesting unchaste or lustful ideas; impure, indecent, lewd.

Immoral—The opposite of moral; not moral.

1. Not consistent with, or not conforming to, moral law or requirement; opposed to or violating morality; morally evil or impure; unprincipled, vicious, dissolute. (Of persons, things, actions, etc.).

2. Not having a moral nature or character; non-moral.

He then duly concluded that Married Love did not fall within these definitions. Further justifying his position, the judge noted that Dr. Stopes's book “may fairly be said to do for adults what Mrs. Dennett's book does for adolescents” (824). Three months later, Judge Woolsey decided a second case that had been brought against Dr. Stopes. In this matter, Stopes imported Contraception, the first book dealing fully with the “theory, history, and practice of birth control” (United States v. One Book, Entitled “Contraception”). Not surprisingly, Judge Woolsey used the test he set forth in Married Love to hold that the book was not obscene or immoral. Once again, Ernst successfully represented his client before a judge very receptive to limiting the legal definition of obscenity; the charges against Dr. Stopes were dismissed.

One year later, the New York Court of Appeals extended the reasoning in Halsey and reversed the convictions stemming from the production of an allegedly obscene play, Frankie and Johnnie (People v. Wendling). The play was a dramatization of a folk song by the same name, “which told the tale of the adventures of Johnnie, a country boy, in a St. Louis resort for drinking, gambling and prostitution in the middle of the last century” (Wendling 453). Even though the court found that the “language of the play is coarse, vulgar and profane; the plot cheap and tawdry,” the court held that “the fact that Frankie and Johnnie and their companions were not nice people does not in itself make the play obscene. A history of prostitution or of sexual life is not per se indecent” (452-53, 455).

This series of cases signaled a potential for judicial receptiveness to further literary challenge to the obscenity laws. It was against this backdrop that publishers and lawyers decided to make Ulysses a test case.

ULYSSES AS A TEST CASE

Less than a month after Greenbaum, Wolff & Ernst prevailed in the Contraception case, the firm was contacted by Sylvia Beach's sister about the “legalization of Ulysses” in the United States. (Moscato⁴ 77). This conversation set the wheels in motion for lawyers who were eager to proceed with the “grandest obscenity case in the history of law and literature” (77). Shortly after Random House was authorized to publish Ulysses in the United States, Morris Ernst was retained to handle the legal aspects.⁵ Ernst had every incentive to win: victory would mark a legal coup and yield a percentage of royalties on all sales (108).

The first bit of strategy, however, was foiled. Bennett A. Cerf, president of Random House, sent a letter to Oliver Wendell Holmes suggesting that the former Supreme Court Justice be the very public recipient of the first copy of Ulysses, which would most certainly be seized by the tipped-off U.S. customs authorities. Via his secretary, Justice Holmes politely declined to take any role in the controversy (Moscato 115). Undeterred, Cerf engaged in a correspondence blitz that mustered considerable support from high-profile members of the literary community, including William Rose Benét, Louis Untermeyer, John Dos Passos, Malcolm Cowley, Theodore Dreiser, John Farrar, and F. Scott Fitzgerald (125-28). As part of ongoing prelitigation strategy, Random House also continued to solicit support from hundreds of libraries and others interested in the publication of Ulysses in the United States. This tactic was designed to show that Ulysses was generally accepted in the community, especially in literary circles, as a modern classic.

In early May 1932, customs authorities confirmed that a copy of Ulysses, on its way to Random House, was seized under the Tariff Act of 1930 as obscene material. The plan to formally introduce Ulysses to the United States and to secure its legalization was progressing on schedule.

UNITED STATES V. ONE BOOK CALLED ULYSSES: ROUND ONE—SOUTHERN DISTRICT OF NEW YORK

On December 9, 1932, the United States brought its action against One Book Called Ulysses (Moscato 165).⁶ At this point, a crucial aspect of representing Random House was carefully planning to have the matter heard by a favorable judge. Ernst deliberately delayed any proceedings until Judge Woolsey was sitting on the bench. Appointed to the federal court in 1929, Woolsey soon established his fondness for literature and freedom of speech. A graduate of Phillips Andover, Yale, and Columbia Law School, Woolsey had a reputation as a well-read man and a book collector who expressed his hope that he had every first edition of Dr. Johnson “available to him since he took up collecting” (Moscato 343). Woolsey was well known to Ernst for his proauthor decisions. In addition to the Married Love and Contraception cases, Woolsey also held in favor of Eugene O'Neill in a copyright infringement suit, assessing a considerable amount of costs to the unsuccessful litigant (Lewys v. O'Neill).

With the timing established to ensure an audience with Woolsey, Ernst and Lindey filed a motion to dismiss the allegations that Ulysses was obscene under the Tariff Act of 1930. In their brief in support of the motion, great care was taken to establish Ulysses as a “cause célèbre in literary circles for more than a decade” and to firmly establish Joyce as one who “has exerted a profound influence on world letters—possibly greater influence than any man before him” (Moscato 238, 239). The brief set forth the argument in six concise (and controversial) points:

• I. The test of obscenity is a living standard, and Ulysses must be judged by the mores of the day.
• II. Ulysses is not obscene as a matter of law.
• III. Ulysses is a modern classic. The United States government has officially acknowledged such. It cannot therefore be deemed obscene.
• IV. The intrinsic features of Ulysses, as well as certain extrinsic facts, negate any implication of obscenity.
• V. Ulysses has been generally accepted by the community, and hence cannot be held to be violative of the statute.
• VI. Ulysses must be judged as a whole, and its general purpose and effect determined. On that basis it must be cleared.

(Moscato 243)⁷

Overall, the argument urged the court to regard Ulysses as a classic and, as such, wholly outside of any construction of obscenity. Lest there be any doubt about their position, one of the concluding remarks in the brief boldly asserted that if “the government prevails on this motion, Ulysses will be relegated to the class of smutty postcards and outright pornography” (Moscato 268). Faced with this argument, the government realized that even though it could make isolated passages of Ulysses appear obscene, prosecutors were dealing “with a book highly serious in its purpose” (304). If the work were viewed as a whole (instead of focusing on isolated passages), the government would need to capitalize on the “expressions, clichés and situations which even in [that] day and age could not be mentioned in any society pretending to call itself polite, and certainly not in mixed company, no matter how free that mixed company might be.”

Amidst much publicity, oral argument was presented on November 26, 1933. To make his point, the prosecutor planned to read aloud some of the “obscene” passages from the book, but at the last minute refrained from doing so because there were women in the courtroom, including Ernst's wife (Ernst, The Best 115-16). According to one account in the New York Herald-Tribune, during the hearing Judge Woolsey “talked freely from the bench and from time to time told of his extremely difficult position in being required to pass on a book that for 10 years had evoked the most violent denunciations and praise from all manner of learned men and women” (Moscato 285). Perhaps Ernst's most persuasive argument about the brilliance of Ulysses came during the hearing:

JUDGE Woolsey:
Did you really read this entire book? It's tough going, isn't it?
COUNSEL:
(fearing that the judge might suppress on the theory that nothing much will be lost if an unreadable volume is prevented entrance to our shores): I tried to read it in 1923 when it had just come out but could not get far into it. Last summer, however, I had to read it—in preparation for this trial. And while lecturing in the Unitarian Church in Nantucket on the bank holiday …
JUDGE Woolsey:
What has that to do with my question—have you read it?
COUNSEL:
Will your honor let me explain how I was able to plough through it? While talking at Church I recalled after my lecture was finished that while I was thinking only about the banks and banking laws I was in fact, at that same time, musing about the clock at the back of the Church, the old woman in the front row, the tall shutters at the sides. Just as now, Judge, I have thought I was involved only in the defense of the book, this one cause—I must admit at the same time I was thinking of the gold ring around your tie, the picture of George Washington behind your bench and the fact that your black judicial robe is slipping off your shoulder. This double stream of the mind is the contribution of Ulysses.
JUDGE Woolsey:
(rapping on the bench): Now for the first time I appreciate the significance of this book. I have listened to you as intently as I know how. I am disturbed by the dream scenes at the end of the book, and still I must confess, that while listening to you I have been thinking at the same time about the Hepple-white furniture behind you.

(Morris L. Ernst and Alan U. Schwartz, Moscato 35)

With that moment of realization, the case was probably won. Reflecting on the trial, Ernst later recalled “I was relieved. This was the book. This was my case” (“Reflections” 8).

Woolsey's eloquent opinion reflects his appreciation of the literature. It is surprisingly detailed in terms of its literary assessment of Ulysses yet remarkably undetailed in terms of legal support for his decision in favor of Random House. After a long description of Joyce's technique and experimentation, Woolsey reduced the issues into a single determination to be made: “whether ‘Ulysses’ is obscene within the legal definition of that word” (United States v. One Book Called “Ulysses,” 5 F. Supp. 184). With no discussion, he glossed the legal meaning of obscene as “[t]ending to stir the sex impulses or to lead to sexually impure and lustful thoughts” (184). In support, he cited Dunlap and his own decisions, Married Love and Contraception, with a note to compare Dysart v. United States. Dysart cites the standard in Swearington v. United States, which says “the words ‘obscene,’ ‘lewd,’ and ‘lascivious,’ … signify that form of immorality which has relation to sexual impurity” (450). The note also compares Dennett, discussed above; and Wendling, discussed above. In all of these cases except Dunlap, the courts found that the work in question was not legally obscene. Judge Woolsey apparently did not feel compelled to elaborate on the legal justification for his definition of obscenity or to address the lingering effects of Hicklin in Bennett and other subsequent cases employing the harsh obscenity test.

What is even more extraordinary is his enunciation of an unprecedented new standard of review:

Whether a particular book would tend to excite such impulses and thoughts must be tested by the court's opinions as to its effect on a person with average sex instincts—what the French would call l'homme moyen sensuel—who plays in this branch of legal inquiry, the same role of hypothetical reagent as does the “reasonable man” in the law of torts and “the man learned in the art” on questions of invention in patent law.

(Ulysses, 5 F. Supp. 184)

Woolsey entirely abandoned the low threshold first articulated in Hicklin. Moreover, he called upon two friends to act as fellow “literary assessors,” who confirmed his own conclusion that “reading Ulysses in its entirety, as a book must be read on such a test as this, did not tend to excite sexual impulses or lustful thoughts, but that its net effect on them was only that of a somewhat tragic and very powerful commentary on the inner lives of men and women” (185). A key aspect of this new standard was the requirement of reading a book in its entirety, not merely relying on an isolated look at passages taken out of context. Woolsey firmly stated his position, leaving no loose ends for future obscenity prosecutions. He declared that this test “is the only proper test of obscenity in the case of a book like Ulysses which is a sincere and serious attempt to devise a new literary method for the observation and description of mankind” (185).

Ernst hailed the decision as “a body-blow for the censors.” He further aptly summarized the effect of Judge Woolsey's opinion by noting that “[t]he necessity of hypocrisy and circumlocution in literature has been eliminated” (Moscato 335). Meanwhile, the government began to prepare its appeal.

UNITED STATES V. ONE BOOK ENTITLED ULYSSES: ROUND TWO—SECOND CIRCUIT COURT OF APPEALS

Random House also prevailed upon appeal. Judge Learned Hand joined in the opinion authored by his cousin Augustus Hand, which offered a more elaborate legal justification than Judge Woolsey for affirming the dismissal of the libel.⁸ Citing United States v. Dennett, the court clearly stated that “at least so far as this court is concerned … works of physiology, medicine, science, and sex instruction are not within the [obscenity] statute, though to some extent and among some persons they may tend to promote lustful thoughts.” The court went on to boldly proclaim:

We think the same immunity should apply to literature as to science, where the presentation when viewed objectively, is sincere, and the erotic matter is not introduced to promote lust and does not furnish the dominant note of the publication.

(Ulysses, 72 F.2d 706)

The Second Circuit also agreed with Judge Woolsey that the publication should be “taken as a whole” to determine any “libidinous effect” (706). The court used Halsey to support the proposition that “the effect of the book as a whole is the test” (707) and Worthington to elevate Ulysses to the level of the classic texts, which were deemed not obscene. Judge Woolsey may have ignored the cases standing in his way, but the Second Circuit addressed them directly. Acknowledging Bennett, Hicklin, and Rosen v. United States (all cited with great agitation in Judge Manton's dissenting opinion), Judge Hand was unequivocal in his denunciation. He declared that the rigorous doctrines laid down in those cases are inconsistent with subsequent decisions in the Second Circuit and New York courts, and, as such, they “do not represent the law” (707). The court continued voicing its objection to such cases that would “exclude much of the great works of literature” (707) and expressed concern that such censorship would stifle the arts:

Art certainly cannot advance under compulsion to traditional forms, and nothing in such a field is more stifling to progress than limitation of the right to experiment with new technique.

(708)

Noting that “any construction of the statute that will fit all cases is difficult,” the court nevertheless stated that “the proper test of whether a given book is obscene is its dominant effect” and that in applying this test, considerations include “relevancy of the objectionable parts to the theme, the established reputation of the work in the estimation of approved critics, if the book is modern, and the verdict of the past, if it is ancient” (707). Applying this standard, the court held that Ulysses did “not fall within the statute, even though it justly may offend many” (709). This decision marked a substantial victory for advocates of free speech in literature and contains aspects of the key features of what was later to become the U.S. Supreme Court standard for evaluating literature under obscenity laws.

THE AFTERMATH OF ULYSSES: THE OBSCENITY STANDARD FOR LITERATURE

During the 1940s and 1950s, another wave of censorship in state courts once again called the protection of literature into question. In 1944 in the Staten Island (New York) Magistrate's Court, John Sumner continued his quest against literary “vice,” this time bringing charges against Dial Press for publishing “with intent to sell an obscene book entitled ‘The First Lady Chatterley’ by D. H. Lawrence” (People v. Dial Press). Relying on the Ulysses cases, the court correctly acknowledged that “the whole book must be read and that upon the reading of the entire book, the question to be answered is whether or not the effect of the whole volume is obscene, that is, contrary to the moral law and tending to subvert respect for decency and morality” (Dial Press 417). An outrageous aspect of the case, however, is the judge's refusal to consider the literary merit of the book:

For several reasons, it seems to me that the literary merit or demerit of the volume cannot be the criterion. Judges are not trained to be, nor are they, competent literary critics. If judgment in such a case as this will depend upon the determination of the author's skill as a writer, the judicial officer responsible for the enforcement of the statute would have to surrender his own judgment and base his opinion on the opinions of experts who have no responsibility in the premises. More than this, it is easy to imagine a book, let us say, by Oscar Wilde, clever, scintillating, even brilliant in its writing and utterly foul and disgusting in its central theme and dominating effect.

(417)

The judge then reduced the entire novel to what he perceived as the “author's central theme and dominant effect of the whole book”: “that it is dangerous to the physical and mental health of a young woman to remain continent … and that the most important thing in her life, more important than any rule of law or morals, is the gratification of her sexual desire” (418). The book was summarily deemed legally obscene.

In a similar case, the Massachusetts Supreme Court adjudicated the novel God's Little Acre by Erskine Caldwell legally “obscene, indecent, and impure” (Attorney General v. The Book Named “God's Little Acre” 285). The court reversed the earlier decision of the trial court, which found that the book was not obscene. At the trial court level, evidence was introduced by “literary critics, professors of English literature, and a professor of sociology touching the ‘literary, cultural or educational character of the book’” (God's Little Acre 284). According to the trial court:

In general the literary experts regarded the book as a sincere and serious work possessing literary merit. The sociologist was of opinion that the book was of value as a sociological document in its portrayal of life of the so called “poor whites” in the south.

(284)

Opting to disregard previous nonbinding cases in which God's Little Acre survived legal challenge,⁹ the Massachusetts Supreme Judicial Court found in favor of the attorney general, thereby prohibiting sale and distribution of the book in that state.

In 1957, however, the U.S. Supreme Court struck down a Michigan statute that made it an offense to make books available to the general reading public that “tend to corrupt the morals of youth,” as an undue restriction on speech (Butler v. State of Michigan 381). Analogizing the position to “burn[ing] the house to roast the pig,” Justice Frankfurter rejected the state's argument that “quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence … is exercising its power to promote the general welfare” (383). Criticizing the law, he continued, the “incidence of this enactment is to reduce the adult population to reading only what is fit for children” (383).

That same year, the Supreme Court decided Roth v. United States, which lent further protection to works of literature. Writing for the majority, Justice Brennan argued that

sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g. in art, literature, and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.

(Roth 487)

In Roth, the Supreme Court finally flatly rejected the obscenity test in Hicklin, adopting the standard used by many American courts:

whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.

(489)

But several well-known works of literature were still in jeopardy of being deemed legally obscene. Lawrence Ferlinghetti was prosecuted in California for allegedly selling “obscene and indecent writings”—Allen Ginsberg's controversial book Howl and Other Poems. After a trial, the court issued a decision concluding that because the book “does have some redeeming social importance” it is not obscene and Ferlinghetti was not guilty (Ferlinghetti 127).

Henry Miller was also the target of censorship in Massachusetts, for Tropic of Cancer. Even though Massachusetts has a long history of book censorship, Miller's novel was ultimately deemed not obscene on appeal. Relying heavily on Roth, the Supreme Court of Massachusetts held that Tropic of Cancer “is not ‘obscene’ in the constitutional sense” (Attorney General v. The Book Named “Tropic of Cancer” 335). Extending First Amendment protection to Tropic of Cancer, the court stated:

It is not relevant that we think that the book at many places is repulsive, vulgar, and grossly offensive in the use of four letter words, and in the detailed and coarse statement of sexual episodes. That a serious work uses four letter words and has a grossly offensive tone does not mean that the work is not entitled to constitutional protection. Much in modern art, literature, and music is likely to seem ugly to those who have different standards of taste. It is not the function of judges to serve as arbiters of taste or to say that an author must regard vulgarity as unnecessary to his portrayal of particular scenes or characters or to establish particular ideas.

(334)

A few years later, the Massachusetts court was less generous when it decreed John Cleland's eighteenth-century book Memoirs of a Woman of Pleasure (commonly known as Fanny Hill) obscene. There was a long-standing history of holding Memoirs as legally obscene; nearly 150 years earlier, a Massachusetts court convicted Peter Holmes for obscenity because he published the work (Commonwealth v. Holmes). The outcome was much different in the twentieth century, however. On appeal, the U.S. Supreme Court reversed the conviction and Justice Brennan once again had the opportunity to rearticulate and further define the obscenity standard set forth in Roth as requiring three elements that must coalesce:

it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.

(A Book Named “John Cleland's Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts 418)

This decision undoubtedly influenced the Supreme Court of Massachusetts, which was considering the disposition of an obscenity conviction for William S. Burroughs's Naked Lunch. Citing the three-part standard articulated in Memoirs, the court conceded that inasmuch as the record

contains many reviews and articles in literary and other publications discussing seriously this controversial book, … it appears that a substantial and intelligent group in the community believes the book to be of some literary significance.

(Attorney General v. A Book Named “Naked Lunch” 571)

Unfortunately, this broad protective language in favor of literature was short lived. The final case of great significance in the wake of Ulysses is Miller v. California, wherein the U.S. Supreme Court retracted some of the protection extended to literature in Memoirs, specifically stating that it did “not adopt as a constitutional standard the ‘utterly without social value’ test of Memoirs” (Miller v. California 24). At the hands of Justice Burger, the currently prevailing standard was set forth:

The basic guidelines for the trier of fact must be: (a) whether the ‘average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interests; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

(24)

The importance of the Ulysses decisions in reaching this standard should not be underestimated. The Woolsey and Hand decisions boldly advanced three key points ultimately accepted at the highest level of the law: that works of literature should be considered as a whole (not just isolated passages); that the effect on the average person—what Judge Woolsey called l'homme moyen sensuel—should be considered (instead of the most susceptible persons); and that contemporary standards of the community should be a factor. As Ernst declared in his foreword to Ulysses, “Under the Ulysses case it should henceforth be impossible for the censors legally to sustain an attack against any book of artistic integrity, no matter how frank and forthright it may be. We have traveled a long way from the days of Bowdler and Mrs. Grundy and Comstock. We may well rejoice over the result.” Yes.

Notes

1. New York Penal Law § 1141 provided: “A person who sells … or has in his possession with intent to sell … any obscene, lewd, lascivious, filthy, indecent or disgusting book … is guilty of a misdemeanor.”

2. In Gordon, the court found that the books in question were not obscene and sustained the booksellers' demurrers, thereby dismissing the allegations. The books alleged to be obscene: a trilogy of Studs Lonigan stories and A World I Never Made by James T. Farrell, Sanctuary and Wild Palms by William Faulkner, God's Little Acre by Erskine Caldwell, End as a Man by Calder Willingham, and Never Love a Stranger by Harold Robbins.

3. In New York state court, however, Ernst was dealt a setback in 1929 in connection with his representation of two defendants charged with violating Penal Law § 1141 for the possession and sale of The Well of Loneliness by Radclyffe Hall. In that case, the court disregarded literary opinions about the value of the book and denied the booksellers' motion to dismiss the complaint. The court stated its conviction that the book “tends to debauch public morals, that its subject-matter is offensive to public decency, and that it is calculated to deprave and corrupt minds open to its immoral influences,” and therefore the court allowed the prosecution to continue (People v. Friede 615). Regarding the censorship of The Well of Loneliness in England, see Adam Parkes and Vera Brittain.

4. Parenthetical references to Moscato refer to documents in Moscato and LeBlanc.

5. In Our Joyce, Joseph Kelly offers interesting insights into Ernst's role in the litigation (85-140).

6. Note that the district court case is titled United States v. One Book Called “Ulysses” and that the title was changed slightly in the Second Circuit to United States v. One Book Entitled Ulysses by James Joyce.

7. For elaboration and analysis of these points, see Vanderham 87-114.

8. Learned Hand was eager to establish a new standard for literary works. The first obscenity case that Judge Hand heard as a member of the Second Circuit was American Mercury v. Kiely in 1927 (Gunther 329). In that case, American Mercury brought suit against the postmaster of New York City for wrongfully treating its April 1926 issue as “nonmailable” (American Mercury 296). Behind the scenes, a fierce disagreement ensued between Judge Manton, who was well known as “a staunch defender of established morality,” and Judge Hand, “who had an equally strong reputation … as a defender of freedom of expression” (Gunther 330). Much to Hand's dismay, the decision ultimately rested with the postmaster. Ulysses provided the next opportunity for Judge Hand to decide an obscenity case.

9. People v. Viking Press in New York and Commonwealth v. Gordon in Pennsylvania.

Cases Cited

English

Regina v. Hicklin, 3 Q.B. 360 (1868).

Federal

American Mercury v. Kiely, 19 F.3d 295 (2nd Cir. 1927).

A Book Named “John Cleland's Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts, 383 U.S. 413 (1966).

Butler v. State of Michigan, 352 U.S. 380 (1957).

Dunlap v. United States, 165 U.S. 486 (1897).

Dysart v. United States, 272 U.S. 655 (1926).

Lewys v. O'Neill, 49 F.2d 603 (S.D.N.Y. 1931).

Miller v. California, 413 U.S. 15 (1973).

Rosen v. United States, 161 U.S. 29 (1896).

Roth v. United States, 354 U.S. 476 (1957).

Swearington v. United States, 161 U.S. 446 (1896).

United States v. Bennett, 24 Fed. Cas. 1093 (Cir. S.D.N.Y. 1879).

United States v. Dennett, 39 F.2d 564 (2nd Cir. 1930).

United States v. Kennerley, 209 F.2d 119 (S.D.N.Y. 1913).

United States v. One Book Called “Ulysses,” 5 F. Supp. 182 (S.D.N.Y. 1933), aff'd United States v. One Book Entitled Ulysses by James Joyce, 72 F.2d 705 (2nd Cir. 1934).

United States v. One Book, Entitled “Contraception,” 51 F.2d 525 (S.D.N.Y. 1931).

United States v. One Obscene Book Titled “Married Love,” 48 F.2d 821 (S.D.N.Y. 1931).

Massachusetts

Attorney General v. The Book Named “God's Little Acre,” 326 Mass. 281 (Sup. Jud. Ct. 1950).

Attorney General v. A Book Named “Naked Lunch,” 218 N.E. 2d 571 (1966).

Attorney General v. The Book Named “Tropic of Cancer,” 184 N.E. 2d 328 (1962).

Commonwealth v. Buckley, 200 Mass. 346, 86 N.E. 910 (Sup. Jud. Ct. 1919).

Commonwealth v. DeLacey, 271 Mass. 327, 171 N.E. 455 (Sup. Jud. Ct. 1930).

Commonwealth v. Friede, 271 Mass. 318, 171 N.E. 472 (Sup. Jud. Ct. 1930).

Commonwealth v. Holmes, 17 Mass. 336 (1821).

New York

Halsey v. New York Society for the Suppression of Vice, 234 N.Y. 1 (1922).

In re Worthington, 360 N.Y.S. 361 (N.Y. Sup. Ct. 1894).

People v. Dial Press, 182 Misc. 416 (Magistrate's Ct., Staten Island, 1944).

People v. Friede, 133 Misc. 611 (Magistrate's Ct., Manhattan 1929).

People v. Viking Press, 147 Misc. 813 (Magistrate's Ct., 1933).

People v. Wendling, 258 N.Y. 451 (N.Y. Court of Appeals 1932).

St. Hubert Guild v. Quinn, 118 N.Y.S. 582 (N.Y. Sup. Ct. 1909).

Pennsylvania

Commonwealth v. Gordon, 66 D& C 101 (PA 1949).

Statutes Cited

Mailing Oscene Matter, 18 U.S.C. § 334 (1909).

New York Penal Law § 1141 (Consol. 1909).

Tariff Act of 1930, 19 U.S.C.A. § 1305.

United States Criminal Code § 211.

Works Cited

Anderson, Margaret. “Judicial Opinion (Our Suppressed October Issue).” Little Review 4.8 (Dec. 1917): 46-49.

———. My Thirty Years' War. New York: Covici, 1930.

———. “‘Ulysses’ in Court.” Little Review 7.4 (Jan.-Mar. 1921): 22-25.

Brittain, Vera. Radclyffe Hall: A Case of Obscenity? London: Femina, 1968.

Bruccoli, Matthew J. The Fortunes of Mitchell Kennerley, Bookman. San Diego: Harcourt, 1986.

Ernst, Morris. The Best Is Yet. … New York: Harper, 1945.

———. Foreword. Ulysses. By James Joyce. New York: Modern Library, 1934. vii-viii.

———. “Reflections on the Ulysses Trial and Censorship.” James Joyce Quarterly 3.4 (Summer 1966): 3-11.

Ferlinghetti, Lawrence. The Howl of the Censor. 1961. Westport: Greenwood, 1976.

Gunther, Gerald. Learned Hand: The Man and the Judge. New York: Knopf, 1994.

Kelly, Joseph. Our Joyce: From Outcast to Icon. Austin: U of Texas P, 1998.

Moscato, Michael, and Leslie LeBlanc, eds. The United States of America v. One Book Entitled Ulysses by James Joyce: Documents and Commentary. Frederick: University Publications, 1984.

Parkes, Adam. Modernism and the Theater of Censorship. New York: Oxford UP, 1998.

Pound, Ezra. “The Classics ‘Escape.’” Little Review 4.11 (Mar. 1918): 32-34.

Vanderham, Paul. James Joyce and Censorship: The Trials of Ulysses. New York: New York UP, 1998.