On This Day: Landmark free expression ruling, Ulysses not pornographic - Dec. 6, 1933
(edited from Wikipedia)
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United States v. One Book Called Ulysses
United States v. One Book Called Ulysses is a landmark decision by the United States District Court for the Southern District of New York in a case dealing with freedom of expression. At issue was whether James Joyce's 1922 novel Ulysses was obscene. In deciding it was not, Judge John M. Woolsey opened the door to importation and publication of serious works of literature that used coarse language or involved sexual subjects.
The trial court's decision was upheld by the United States Court of Appeals for the Second Circuit, which confirmed that offensive language in a literary work is not obscene where it does not promote lust. But Judge Woolsey's trial court opinion is now more widely known, and often cited as an erudite and discerning affirmation of literary free expression.
Background
In 1922 James Joyce published Ulysses, his most famous work. Prior to publication as a book, the work was serialized in The Little Review, a literary magazine. In 1920 this periodical published the "Nausicäa episode", which contained a masturbation scene.
Copies were mailed to potential subscribers; a girl of unknown age read it and was shocked, and a complaint was made to the Manhattan District Attorney. As the magazine could be purchased in a New York bookshop and The Little Review, the publisher, was based in the city, the local district attorney was able to prosecute in New York.
Little Review publishers Margaret Caroline Anderson and Jane Heap could not argue that the chapter should be considered in light of the work as a whole, as only the offending chapter was published in the magazine issue in question. The court convicted and fined Anderson and Heap after a trial in which one of the judges stated that the novel seemed "like the work of a disordered mind". That stopped publication of Ulysses in the United States for over a decade.
In 1932 Random House, which had the rights to publish the entire book in the United States, decided to bring a test case to challenge the de facto ban, so as to publish the work without fear of prosecution. It therefore made an arrangement to import the edition published in France and to have a copy seized by the U.S. Customs Service when the ship carrying the work arrived. Although Customs had been told in advance of the anticipated arrival of the book, it was not confiscated when the ship docked, but instead was forwarded to Random House in New York City.
As seizure by Customs was essential to the plan for a test case, Morris Ernst, the attorney for Random House, took the unopened package to Customs, demanded that it be seized, and it was. The United States Attorney then took seven months before deciding whether to proceed. While the Assistant U.S. Attorney assigned to assess the work's obscenity felt that it was a "literary masterpiece", he also believed it to be obscene within the meaning of the law. The office therefore decided to take action against the work under the provisions of the Tariff Act of 1930, which allowed a district attorney to bring an action for forfeiture and destruction of imported works which were obscene. This set up the test case.
Trial court
The seizure of the work was contested in the United States District Court in New York City. The United States, acting as libelant, brought an action in rem against the book itself rather than the author or importer, a procedure in the law that Morris Ernst, attorney for the publisher, had previously asked to have inserted when the statute was passed by Congress. The United States asserted that the work was obscene, therefore not importable, and subject to confiscation and destruction. Random House, as claimant and intervenor, sought a decree dismissing the action, contending that the book was not obscene and was protected by the First Amendment to the United States Constitution which protects free expression. There was no trial as such; the parties agreed that the judge could try issues of fact as well as questions of law, so the trial judge read the entire book and the parties made motions for the relief each sought.
Attorney Ernst later recalled the libelant's argument as having three lines of attack: (1) the work contained sexual titillation, especially Molly Bloom's soliloquy, and had "unparlorlike" language; (2) it was blasphemous, particularly in its treatment of the Roman Catholic Church; and (3) it brought to the surface coarse thoughts and desires that usually were repressed. These attributes were perceived as a threat to "long–held and dearly cherished moral, religious, and political beliefs"—in short, it was subversive of the established order. Ernst's argument therefore concentrated on "downplaying the novel's subversive or potentially offensive elements and emphasizing its artistic integrity and moral seriousness". He instead argued that the work was not obscene but rather a classic work of literature.
[Ruling]
On December 6, 1933, Judge John M. Woolsey issued his decision. He ruled that Ulysses was not pornographic—that nowhere in it was the "leer of the sensualist". Acknowledging the "astonishing success" of Joyce's use of the stream of consciousness technique, the judge stated that the novel was serious and that its author was sincere and honest in showing how the minds of his characters operate and what they were thinking. Some of their thoughts, the judge said, were expressed in "old Saxon words" familiar to readers, and:
In respect of the recurrent emergence of the theme of sex in the minds of [Joyce's] characters, it must always be remembered that his locale was Celtic and his season Spring.
To have failed to honestly tell fully what his characters thought would have been "artistically inexcusable", said the judge.
Having disposed of the question of whether the book was written with pornographic intent, Woolsey turned to the issue of whether the work nevertheless was objectively obscene within the meaning of the law. That meaning, as set forth in a string of cases cited in the opinion, was whether the work "tend[ed] to stir the sex impulses or to lead to sexually impure and lustful thoughts". The judge found that the book when read in its entirety did not do so:
[W]hilst in many places the effect of Ulysses on the reader undoubtedly is somewhat emetic, nowhere does it tend to be an aphrodisiac.
Consequently, Ulysses was not obscene, and could be admitted into the United States.
Within minutes of hearing of the decision, Bennett Cerf of Random House instructed typesetters to start work on the book. One hundred copies were published in January 1934 to obtain U.S. copyright. This was the first legal publication of the work in any English-speaking nation.
On the same day the judge released his decision the news was cabled to Joyce in Paris. Richard Ellmann, Joyce's biographer, wrote that Woolsey's eloquent and emphatic decision allowed the author to achieve his ambition of obtaining a "famous verdict". Joyce stated triumphantly that "one half of the English speaking world surrenders; the other half will follow", a gentler version of his prior sardonic prediction that while England would allow the work within a few years after the U.S. stopped censoring it, Ireland would not follow suit until "1000 years hence". In fact, negotiations began with a British publisher within a week of the decision,[17] and the first British edition came out in 1936.
Appeal
The U. S. Attorney appealed Judge Woolsey's decision to the United States Court of Appeals for the Second Circuit in 1934. A three-judge panel of the court heard the appeal and affirmed Woolsey's ruling by a two-to-one vote.
[Judge] Augustus Hand acknowledged the critical acclaim given to the book, and found Joyce's depiction of his characters "sincere, truthful, relevant to the subject, and executed with real art".
Significance
... by his persistence Joyce established a principle, which is that the artist must have absolute freedom to work with the world he or she has stumbled across, the world as it is. That most of us now take this for granted is largely because of him.
—Louis Menand
Together, the trial and appellate decisions established that a court applying obscenity standards should consider (1) the work as a whole, not just selected excerpts; (2) the effect on an average, rather than overly sensitive person; and (3) contemporary community standards. These principles, filtered and applied through a long line of later cases, ultimately influenced the U.S. Supreme Court's case law on obscenity standards.
But the significance of the case goes beyond its immediate and ultimate precedential effect. While the Second Circuit's decision set the precedent, the trial court opinion has been reproduced in all Random House printings of the novel, and is said to be the most widely distributed judicial opinion in history.
The opinion has been recognized as a perceptive analysis of Joyce's work. Richard Ellmann stated that Judge Woolsey's decision "said much more than it had to", and another Joyce biographer and critic, Harry Levin, called the decision a "distinguished critical essay". The opinion discusses some of the same characteristics that Joyce scholars have discerned in the work.
Woolsey mentioned the "emetic" effect of some of the passages alleged to be obscene; Stuart Gilbert, Joyce's friend and author of an early critical study of the novel, stated that those passages "are, in fact, cathartic and calculated to allay rather than to excite the sexual instincts". And Harry Levin noted that the judge described the book's "effect in terms of catharsis, the purge of the emotion through pity and terror" that is ascribed to tragedy, a theme that Levin found in prior works of Joyce.
Through these characters Joyce "achieves a coherent and integral interpretation of life", or in the words of Judge Woolsey, a "true picture" of lower-middle class life, drawn by a "great artist in words" who had devised a "new literary method for the observation and description of mankind".
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https://en.wikipedia.org/wiki/United_States_v._One_Book_Called_Ulysses
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