United States v. One Book Called Ulysses

United States v. One Book Called Ulysses was a 1933 case in the United States District Court for the Southern District of New York dealing with freedom of expression. At issue was whether James Joyce's 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

James Joyce, about the time of first publication of Ulysses

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. 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 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".[1] That stopped publication of Ulysses in the United States for over a decade.[2]

In 1933 Random House, which had the rights to publish the entire book in the United States, decided to bring a test case to challenge the implicit 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.[3] Although Customs had been told in advance of the anticipated arrival of the book, the local official declined to confiscate it, stating "everybody brings that in." He and his superior were finally convinced to seize the work. The United States Attorney then took seven months before deciding whether to proceed further. While the Assistant U.S. Attorney assigned to assess the work's obscenity felt that it was a "literary masterpiece," he also found it 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.[4]

Trial court ruling

The seizure of the work was contested in the United States District Court in New York City. The United States, acting as libelant,[5] 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.[6] 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; instead the parties stipulated to the facts and made motions for the relief each sought.[7]

Attorney Ernst later recalled the libelant's case 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 Catholic Church; and (3) it brought to the surface coarse thoughts and desires that usually were repressed.[8] 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.[9]

Judge John M. Woolsey 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.[7] Some of their thoughts, the judge said, were expressed in "old Saxon words" familiar to readers, and:

[i]n 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.[10]

Having disposed of the question of whether the book was written with pornographic intent, Woolsey turned to the question 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".[10] 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.[11]

Within minutes of hearing of the decision, Bennett Cerf of Random House instructed the typesetters to start work on the book. One hundred copies were published in January 1934 to obtain U.S. copyright.[12] This was the first legal publication of the work in any English-speaking nation.[13]

The news of the decision was cabled to Joyce in Paris. Richard Ellmann, Joyce’s biographer, stated that judge’s eloquent and emphatic decision allowed the author to achieve his ambition of obtaining a "famous verdict".[14] 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".[12] In fact, the first unsuppressed British edition was published in 1936.[15]

Appeal

The U. S. Attorney appealed Judge Woolsey's decision to the United States Court of Appeals for the Second Circuit. The three-judge panel affirmed Woolsey's ruling by a two-to-one vote in United States v. One Book Entitled Ulysses by James Joyce.[16] The panel majority consisted of Judges Learned Hand and Augustus N. Hand, with Chief Judge Martin Manton dissenting.

Judges Learned Hand and Augustus Hand, believing that the case was receiving undue publicity and attention, "agreed that the opinion affirming Woolsey's ruling should, if at all possible, contain 'not a single quotable line.'"[17] The decision was therefore drafted by Augustus Hand rather than his cousin Learned Hand, whose writing was far more memorable.[18]

Augustus Hand nevertheless rose to the occasion and transcended the prosaic in his opinion.[19] He 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”.[20] That depiction however contained passages “obscene under any fair definition”,[21] and the court therefore had to decide whether the work should be banned. The court discussed a number of other works, from classic works of literature to “physiology, medicine, science, and sex instruction” which contain sections which would be characterized as “obscene”, yet nevertheless are not banned as they do not promote lust.[22] The majority opinion forthrightly confronted and disagreed with precedents which allowed courts to decide the question of obscenity on the basis of isolated passages, even if taken out of context.[23] Such a standard would “exclude much of the great works of literature” and be impracticable, and the court therefore held that the “proper test of whether a given book is obscene is its dominant effect”.[23]

Judge Hand concluded the majority opinion with a historical perspective of the harms of overzealous censorship:

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 a new technique. The foolish judgments of Lord Eldon about one hundred years ago, proscribing the works of Byron and Southey, and the finding by the jury under a charge by Lord Denman that the publication of Shelley's Queen Mab was an indictable offense are a warning to all who have to determine the limits of the field within which authors may exercise themselves. We think that Ulysses is a book of originality and sincerity of treatment and that it has not the effect of promoting lust. Accordingly it does not fall within the statute, even though it justly may offend many.[24]

In his dissent, Judge Manton opined that certain passages undoubtedy were obscene, so much so they could not even be quoted in the opinion; that the test of obscenity was whether the material tended "to deprave and corrupt the morals of those whose minds are open to such influences"; and that the reason for using such terms was irrelevant.[25] He nevertheless went on to distinguish Ulysses from medical and scientific texts which are "of obvious benefit to the community", as the novel was but a work of fiction, "written for the alleged amusement of the reader only".[26] The effect on the community, including children, was to be the sole determining factor in applying the statute.[27] The dissent rejected a position that would allow material even though it was objectionable only to a susceptible minority, as:

to do so would show an utter disregard for the standards of decency of the community as a whole and an utter disregard for the effect of the a book upon the average less sophisticated members of society, not to mention the adolescent.[28]

In conclusion, Judge Manton stated that masterpieces are not the product of "men given to obscenty or lustful thoughts— men who have no Master". He instead appealed to higher purposes for good literature; to serve the need of the people for "a moral standard", to be "noble and lasting", and to "cheer, console, purify, or enoble the life of people".[28]

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 because of him.
—Louis Menand[29]

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.[30] These principles, filtered through a long line of later cases, ultimately influenced the U.S. Supreme Court's case law on obscenity standards.[30]

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.[31] The opinion has been recognized as a perceptive analysis of Joyce's work.[32]

Richard Ellmann stated that Judge Woolsey’s decision "said much more than it had to",[14] and another Joyce biographer and critic, Harry Levin, called the decision a "distinguished critical essay".[33] 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".[34] 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.[33]

The trial court judge had also stated that portrayal of the coarser inner thoughts of the characters was necessary to show how their minds operate, an authorial judgment that treats those characters as not mere fictional creations, but as authentic personalities. Gilbert said that the "personages of Ulysses’ are not fictitious",[35] but that "these people are as they must be; they act, we see, according to some lex eterna, an ineluctable condition of their very existence".[36] Through these characters Joyce "achieves a coherent and integral interpretation of life",[36] or in the words of Judge Woolsey, a "true picture" of lower-middle class life,[10] drawn by a "great artist in words" who has devised a "new literary method for the observation and description of mankind".[11]

References

  1. ↑ Ellmann (1982), pp. 502–04; Gillers (2007), pp. 251–62.
  2. ↑ Gillers (2007), p. 261.
  3. ↑ Book Tells the Backstory on History's Most Famous Trials; Pagnattaro, Carving a literary exception: The obscenity standard and Ulysses.
  4. ↑ United States v. One Book Entitled Ulysses by James Joyce, 72 F.2d 705, 706 (2d Cir. 1934); Kelly (1998), pp. 108–09.
  5. ↑ In this context, a libel does not mean defamation, but an action brought by a "charge in writing exhibited in court ... against ... goods, for violating the laws of trade or of revenue." See Websters 1828 Dictionary
  6. ↑ Ernst (1965), p. 6.
  7. 1 2 5 F.Supp. at 183.
  8. ↑ Ernst (1963), pp. 6–7.
  9. ↑ Segall (1993), pp. 3–7.
  10. 1 2 3 5 F.Supp. at 184.
  11. 1 2 5 F.Supp. at 185.
  12. 1 2 Ellmann (1982), p. 667.
  13. ↑ Ulysses Lands, (web) p. 1.
  14. 1 2 Ellmann (1982), p. 666.
  15. ↑ McCourt, p. 98.
  16. ↑ 72 F.2d 705 (2d Cir. 1934).
  17. ↑ Gunther (1994), p. 338.
  18. ↑ "Learned would have a hard time producing an opinion devoid of quotable language no matter how hard he tried." Gunther (1994), p. 339.
  19. ↑ Gillers (2007), p. 288.
  20. ↑ 72 F.2d at 706.
  21. ↑ 72 F.2d at 706–07.
  22. ↑ 72 F.2d at 707.
  23. 1 2 72 F.2d at 708.
  24. ↑ 72 F.2d at 708–09.
  25. ↑ 72 F.2d at 709.
  26. ↑ 72 F.2d at 710.
  27. ↑ 72 F.2d at 710–11.
  28. 1 2 72 F.2d at 711.
  29. ↑ Menand (2012), p. 75
  30. 1 2 Pagnattaro (2001), Carving a Literary Exception.
  31. ↑ Younger (1989).
  32. ↑ Author and publisher Nancy J. Peters called Judge Woolsey's decision an "eloquent and erudite opinion that esteemed the book as a work of art". Morgan & Peters (2006), p. 10.
  33. 1 2 Levin (1960), p. 128.
  34. ↑ Gilbert (1930), p. 32.
  35. ↑ Gilbert (1930), p. 21.
  36. 1 2 Gilbert (1930), p. 22.

Bibliography

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