7. The Impact of the Ulysses Decisions
The broad implications of the Ulysses decisions are apparent from Judge Woolsey’s joint appearance with Morris Ernst on 24 April 1935 at an exhibition of books that had been burned by the Nazis in May 1933.1 Paul Boyer suggests that this conjunction of Woolsey and Ernst around Nazi-burned books reflected the fact that the ‘Ulysses decision, coming as the full magnitude of the Nazi attack on books unfolded, was widely seen as America’s answer to Hitler’s repressions.’2 But the impulse to burn threatening books dies hard, and the photograph (p. 75) of John Sumner overseeing a conflagration of books was taken in November 1935. The full import of the ideas that drove the Ulysses decisions unfolded slowly.
In the legal realm, those ideas found fuller expression in the Supreme Court’s 1957 ruling in Roth v. United States, 354 U.S. 476 (1957), a case that, ironically, reviewed the obscenity conviction of Samuel Roth, who had been pilloried by Joyce in 1927 as a ‘pirate’ for publishing an unauthorized Ulysses. The Supreme Court effectively held that the test of obscenity articulated in the Second Circuit’s decision in Ulysses was required as a matter of constitutional law. Justice Brennan’s opinion for the Court seemed to uphold the traditional view that the First Amendment to the Constitution does not protect obscenity, which he characterized as being ‘utterly without redeeming social importance’. However, Brennan made clear that the First Amendment’s protection of freedom of speech and press extends to the arts, and that, accordingly, ‘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 …’ Against this background, Brennan’s opinion ended the reign of Hicklin as a matter of constitutional law, thereby extending the reach of the Ulysses decisions to every court in the country. Citing the Second Circuit’s Ulysses opinion as reflecting the constitutionally required standard for determining obscenity, Brennan held that the ‘Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press.’ A permissible test of obscenity, Brennan wrote, was ‘whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.’
Seven years later, in Jacobellis v. Ohio, 378 U.S. 184 (1964), Justice Brennan, writing for a plurality, but less than a majority, glossed his opinion in Roth by saying that it recognized
that obscenity is excluded from the constitutional protection only because it is ‘utterly without redeeming social importance,’ and that … [it] follows that material dealing with sex in a manner that advocates ideas … or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection.
In short, so long as a book has an iota of literary value, it cannot be obscene. This formulation approximates Anderson and Heap’s position that literature cannot be obscene.
In 1966, in A Book Named ‘John Cleland’s Memoirs of a Woman of Pleasure’ v. Attorney General, 383 U.S. 413 (1966), Justice Brennan, again writing for a plurality of the Court, restated and clarified the evolving constitutional law of obscenity, holding that three elements must be satisfied in order to characterize a work as obscene: ‘(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 contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.’ After enunciating this three-part test, the Court held that the Supreme Judicial Court of Massachusetts had erred by finding that the book at issue was obscene even though it possessed some social value. Brennan’s plurality opinion for the United States Supreme Court held:
The Supreme Judicial Court erred in holding that a book need not be ‘unqualifiedly worthless before it can be deemed obscene.’ A book cannot be proscribed unless it is found to be utterly without redeeming social value. This is so even though the book is found to possess the requisite prurient appeal and to be patently offensive. Each of the three federal constitutional criteria is to be applied independently; the social value of the book can neither be weighed against nor canceled by its prurient appeal or patent offensiveness.
Brennan’s opinions in Jacobellis and Memoirs vindicated the views of Anderson, Heap, and John Butler Yeats that literature, by definition, was not obscene. Since literature has some social merit, a work of literature could not be said to be utterly without social merit, and thus could not be obscene. However, this vindication was limited by the fact that neither of Brennan’s opinions spoke for a majority of the justices. In Miller v. California, 413 U.S. 15 (1973), a majority of justices forged a common definition of obscenity for the first time since Roth, and the definition was less protective of literature than Brennan’s opinions in Jacobellis and Memoirs. The majority opinion by Chief Justice Burger traced the evolution of the test from Roth to Memoirs, and after quoting the standard as announced in Memoirs, noted ‘the sharpness of the break with Roth … represented by the third element of the Memoirs test …’ Burger explained the difference between Roth and Memoirs, noting that while Roth
presumed ‘obscenity’ to be ‘utterly without redeeming social importance,’ Memoirs required that to prove obscenity it must be affirmatively established that the material is ‘utterly without redeeming social value.’
Burger concluded that even as the Memoirs plurality
repeated the words of Roth, [it] produced a drastically altered test that called on the prosecution to prove a negative, i.e. that the material was ‘utterly without redeeming social value’ – a burden virtually impossible to discharge under our criminal standards of proof.
Burger’s opinion formulated a new test for obscenity:
(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest [citation omitted], (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.
This approach was later reaffirmed in Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002).
In fashioning the definition of obscenity in this way, Miller re-affirmed the prurience and patent offensiveness elements of Roth, but explicitly disclaimed Memoirs’ added requirement that the work be utterly without redeeming social value. In its place, Miller substituted a more lenient requirement that the entire work lack serious value. Thus, under Miller, even if a work has some – but short of ‘serious’ – social value, it may still be excluded from First Amendment protection, even though the original rationale in Roth for excluding obscenity from the scope of the First Amendment was that it lacked any redeeming social importance.
With respect to the first two elements of the test, Miller explained that the contemporary community standards were to be evaluated at the local level. The Court noted that
these are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists … It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York City.
The implication that Ulysses could be obscene in some states is a reminder that the battle against censorship has not been finally won. Even so, the principles of the Ulysses decisions are still vibrant in Miller’s requirement that these standards are to be fashioned according to the average person, and the Court’s later clarification that the third prong of the Miller test is governed by an objective standard (i.e. whether a reasonable person would find the work taken as a whole to have serious value).3
Even as modified by Miller, the constitutional law of obscenity continues to reflect the legacy of the Ulysses decisions by distinguishing literature from obscenity. This conceptual link among the Ulysses, Roth and Miller decisions is parallelled by the intriguing factual link arising out of the fact that both Samuel Roth and Marvin Miller, the defendants in these two classic obscenity cases, had, during the course of their careers, published unauthorized editions of Ulysses.4
Interestingly, none of the lawyers in the Ulysses case had cited the First Amendment as a limitation on the government’s power to prosecute or seize allegedly obscene literature. Ernst had raised the point in the Married Love and Contraception cases, but did not assert it in Ulysses. Ezra Pound had urged on Quinn his view that obscenity statutes were ‘unconstitutional from a Jeffersonian angle’, but acceded to Quinn’s disingenuous assertion that the New York City Municipal Court was not the place to raise a constitutional issue. As an experienced lawyer, Quinn had to know that it was necessary to raise the issue in the trial court in order to preserve it for appellate review. His preemptive decision that there would be no appeal took Pound’s innovative argument off the table – and denied Anderson and Heap a hearing on their shared conviction that literature should not be subjected to regulation by courts, the core of the rationale that prevailed in the federal decisions in Ulysses – and thereby fundamentally altered the relationship between law and literature.
The Ulysses decisions had far-reaching practical consequences. The fact of Ulysses’ publication itself caused powerful reverberations in the world of publishing. Joyce’s novel was published in New York on 17 January 1934, just in time for Bennett Cerf to dispatch six copies to reach Joyce for his 2 February birthday,5 much as copies of the Shakespeare and Company edition had been rushed from Dijon to Paris for his birthday in 1922.
Cerf was well aware of the copyright problem presented by Joyce’s publication of Ulysses in 1922 without seeking copyright protection in the United States. He had written in 1931 that the text of Ulysses could not qualify for copyright in the United States.6 Nonetheless, he was willing to trust in the continuing effectiveness of the ‘trade courtesy’ customs pursuant to which established publishers would not compete with the first publisher to make an arrangement to compensate a foreign author whose work was in the public domain in the United States.7 Although renegade publishers could easily print a competing edition of Ulysses, Cerf had confidence in the traditional tactic of ostracizing the renegade with public shaming. His 26 December 1933 letter reminded a would-be competing publisher of Ulysses that when Roth reprinted Joyce’s novel without authorization ‘the wrath of all the critics and authors in America descended upon his head’.8
Copyright was not Cerf’s only potential pitfall. Obscenity charges remained a very real possibility. Nonetheless, Cerf plunged ahead with publication immediately following the district court’s judgment, even though the government had ninety days within which to appeal. He may have made the decision to go ahead at a time when it was thought that the government would not appeal, or he may simply have been willing to run the risk of a reversal in the Court of Appeals or in the Supreme Court. The risk of criminal prosecution was likely thought to be minimal, given the difficulty of proving intent to distribute an obscene book when the book at issue had been judicially determined not to be obscene. To capitalize on that fact, Cerf obtained Woolsey’s concurrence in printing his opinion as a sort of preface to Joyce’s novel. Cerf suggested to Woolsey that including the opinion would ‘impress a number of self-appointed smut-hounds in various states sufficiently to keep them from taking any action against the book, and causing us petty annoyance for an indefinite period of time’.9 In addition, there could be civil law consequences of unpredictable dimension, including the possibility of a recall, but even a final affirmance by the Second Circuit Court of Appeals would not remove the risk of legal action in any state court and in federal courts outside of the geographical boundaries of the Second Circuit, which is comprised of the New York, Connecticut and Vermont federal district courts. Waiting was unappealing from a business standpoint. Plunging ahead paid: Random House sold 35,000 copies in the interval between Woolsey’s decision and its affirmance.10
The Second Circuit’s affirmance paved the way to publication in England. Joyce had anticipated this cascading impact of a favourable decision in the United States. ‘I suppose’, he had written to Harriet Shaw Weaver of possible vindication in the United States, ‘England will follow suit as usual a few years later. And Ireland 1000 years hence.’11 In the same vein, when Joyce learned of Woolsey’s decision in December 1933, he observed, ‘Thus one half of the English speaking world surrenders. The other half will follow.’12
In fact, England did follow suit, but not without difficulty. Although T.S. Eliot, the Faber director who dealt with Joyce, was eager to publish a series of episodes in the Criterion Miscellany, he feared that publication of the entire book, as Joyce wanted, would result in prosecution.13 Eliot’s timidity in 1932 underscores the courage of Anderson and Heap in publishing unexpurgated Joyce beginning in 1918. Joyce responded to Eliot that he would not permit ‘any authorities in either of Bull’s islands to dictate to me what and how I am to write’.14 Joyce’s rationale for resisting expurgation was true to the principle that guided the favourable federal court decisions. As he explained to Sisley Huddleston:
To consent would be an admission that the expurgated parts are not indispensable. The whole point about them is that they cannot be omitted. Either they are put in gratuitously without reference to my general purpose; or they are an integral part of my book. If they are mere interpolations, my book is inartistic; and if they are strictly in their place, they cannot be left out.15
After negotiating with several publishers, Joyce finally reached agreement with The Bodley Head for publication in 1936 of a deluxe edition of a thousand copies, which included Woolsey’s decision. The British government obtained copies of the District Court and Court of Appeals decisions in the Ulysses case, and relied on them in deciding not to prosecute The Bodley Head for publishing Ulysses.16 It is difficult to calculate with precision just when it became apparent that Joyce was wrong in predicting that it would take a thousand years for a change of Ulysses’ status in Ireland. When the Irish Free State was established in 1922, the same year Ulysses was published in Paris, the new government carried over most English statutory law, including the Obscene Publications Act of 1857, which was glossed by the Hicklin definition of obscenity, and Section 42 of the Customs Consolidation Act of 1876, which authorized customs officials to seize and destroy obscene material.17 Seven years into its existence, the new state adopted the Censorship of Publications Act of 1929, which, among other things, created a Censorship of Publications Board with power to prohibit the distribution of indecent publications in Ireland.18 Although the introduction of censorship was a matter of concern to many Irish writers, Joyce, with typical aloofness, declined to involve himself.
W.B. Yeats tried unsuccessfully to persuade Joyce to become a member of the Irish Academy of Letters that he founded with George Bernard Shaw in 1932 to protect Irish writers from censorship. Knowing his quarry, Yeats invoked the name of Dante, whom JBY had identified as Joyce’s master. Playing on Dante’s reputed response to a request that he head a diplomatic delegation, Yeats entreated Joyce, ‘Of course, the first name that seemed essential both to Shaw and myself was your own, indeed you might say of yourself as Dante said “if I stay, who goes, if I go who stays?” Which means that if you go out of our list it is an empty sack indeed.’19 Joyce, while observing that ‘it is now thirty years since you first held out to me your helping hand’, declined. It was important to Joyce’s concept of himself throughout his life that he was an exile from the Dublin that dominated his imagination. Thus, he loftily staked out his separate place: ‘My case, however, being as it was and probably will be I see no reason why my name should have arisen at all in connection with such an Academy …’20 As it happened, Ulysses was never on the list of proscribed books maintained by the Censorship Board, probably because it was subject to a customs bar. Although the bar was allowed to lapse in the 1930s,21 Ulysses remained a difficult commodity to purchase in Ireland for many years.22
In England, the reach of the ideas that powered the Ulysses decisions was not limited to the publication of Joyce’s novel and the Home Office decision not to prosecute it. Parliament altered the law of obscenity in ways that made English law similar to the doctrines articulated in the Ulysses decisions. The Obscene Publications Act of 1959 eliminated the core of the Hicklin test by providing that obscenity must be determined by considering the work ‘taken as a whole’, rather than on the basis of isolated passages. Moreover, the Act established a defence of ‘public good’ based on proof ‘that publication of the article in question is justified as being for the public good on the ground that it is in the interest of science, literature, art or learning, or other objects of general concern’. The statute further provided that the ‘opinion of experts as to the literary, artistic, scientific or other merits of an article may be admitted’ to establish or negate the defence. The English statute thus approaches the question somewhat differently from the Ulysses decisions but reaches a similar result. Rather than declaring that literature is qualifiedly immune from the law of obscenity, it provides that a work may be obscene, but nonetheless publishable because it is literature. The statute is in accord with the Ulysses decisions in admitting expert opinion on the literary value of a work.
The change in English law, and the acceptance of the Ulysses decision in other American cases, had a profoundly liberating effect on English publishing. Allen Lane thought that ‘if ever there was a test book’ for the new English statute, it was Lady Chatterley’s Lover, but hesitated to risk imprisonment. As his biographer recounts, the publication of Chatterley in America – which was declared not to be obscene in decisions that relied heavily on the Ulysses case – encouraged him to go forward: ‘His decision to press ahead received a welcome boost’ when Chatterley was published in New York; ‘and, as with Ulysses, where America led, Lane might safely follow’.23 Lane later testified that, ‘the fact that the new Act was now on the Statute Book and that there had been a trial in America decided us this was a book we should now do’.24
The American trial to which Lane referred was the determination by the federal district court in New York that Chatterley could not be excluded from the US mails. In affirming the trial court’s Chatterley decision, the Second Circuit Court of Appeals, in Grove Press, Inc. v. Christenberry, 276 F.2d 433 (2d Cir. 1960), characterized Judge Hand’s Ulysses decision as ‘probably the leading case on the subject’ prior to the then-recent decisions of the Supreme Court, such as the Roth case. Reflecting the practical impact of Judge Hand’s authorization of reliance on expert opinion in his Ulysses decision, the Second Circuit’s opinion in the Chatterley case took pains to note at the outset that the book contains a ‘prefatory letter of commendation by Archibald MacLeish, poet, playwright and Boylston Professor of Rhetoric and Oratory at Harvard University’, and added that it also featured ‘an extensive Introduction and a concluding Bibliographical Note by Mark Schorer, Professor of English Literature at the University of California and a Lawrence scholar’. The court accepted the Postmaster’s findings that the book was ‘replete with descriptions in minute detail of sexual acts’ and that such ‘descriptions utilize filthy, offensive and degrading words and terms’, but disagreed with the Postmaster’s approach of weighing such matter against the literary qualities of the book. Rather, the court followed and reiterated the approach of the two Ulysses opinions that the author’s judgment as to how to carry out his or her artistic plan should not be the subject of judicial review. Pointedly, the court recognized that ‘Lawrence could have omitted some of the passages found “smutty” by the Postmaster General and yet have produced an effective work of literature. But clearly it would not have been the book he planned, because for what he had in mind his selection was most effective, as the agitation and success of the book over the years have proven.’
The English trial that exonerated Chatterley on the other side of the Atlantic was a remarkable illustration of the impact of the change in the law that admitted literary criticism on the questions presented by the Obscene Publications Act. Indeed, the role of literary criticism was so central that the trial was described as ‘probably the most thorough and expensive seminar on Lawrence’s work ever given’.25 As a reviewer of Penguin’s publication of the trial transcript put it, such a seminar ‘is precisely what the testimony was: a brilliant, provocative, highly sophisticated series of statements on the meaning of the book, its symbolism, Lawrence’s intentions in writing it, its merit as a work of art, its place in English literature and in Lawrence’s writings, and so on’.26
The Chatterley trial also put another, although hardly the final, nail in the coffin of John Quinn’s patronizing view that what was permissible for upper-class males was not suitable for a broader public. The jury rejected the approach of the prosecutor’s question in opening the case – ‘Is it a book that you would even wish your wife or your servants to read?’27
At least initially, the Ulysses decision had more effect on law than literature. One of the most interesting features of Ulysses’ encounter with the law is that the robust critical assessment of Joyce’s achievement by Woolsey and the Hands was more enthusiastic than the reaction of many contemporary writers. Virginia Woolf, for example, famously found Ulysses ‘underbred … the book of a self taught working man …’ Later, before she herself adopted the idea of describing Mrs Dalloway’s consciousness on a single day in June, she tepidly conceded that Joyce’s novel had ‘genius but of the inferior water’.28 In her famous 1924 essay, ‘Mr. Bennett and Mrs. Brown’, Woolf qualified the application to Joyce of her declaration that a spectacular change occurred in human nature in December 1910 that required novelists to discard established tools and conventions of writing. While insisting that ‘for us those conventions are ruin, those tools are death’, she drew the line at what she regarded as Joyce’s indecency. Ulysses, she said, ‘seems to me the conscious and calculated indecency of a desperate man who feels that in order to breathe he must break the windows. At moments, when the window is broken, he is magnificent. But what a waste of energy!’29
Edmund Gosse thought Joyce ‘a literary charlatan of the extremest order’ and Ulysses ‘infamous in taste, in style, in everything’.30 Katherine Mansfield couldn’t ‘get over the feeling of wet linoleum and unemptied pails and far worse horrors in the house of his mind …’31 Shaw called Ulysses ‘a revolting record of a disgusting phase of civilization’, albeit ‘a truthful one’.32 Edith Wharton branded it ‘a welter of pornography (the rudest school-boy kind), and unformed and unimportant drivel’.33
D.H. Lawrence thought Molly Bloom’s monologue ‘the dirtiest, most indecent, obscene thing ever written’.34 Lawrence’s view of Ulysses arose out of his conviction that sex and excrement should not be mixed in literature. In his essay ‘Pornography and Obscenity’ he maintained that ‘[t]he sex functions and the excrementory functions in the human body’ work closely together, yet are ‘utterly different in direction’, sex being ‘a creative flow’, whereas the excrementory tends toward ‘dissolution, decreation …’35 Lawrence maintained that, ‘[I]n the really healthy human being the distinction between the two is instant’ but ‘in the degraded human being … the two flows have become identical’, with the result that ‘sex is dirt and dirt is sex, and sexual excitement becomes a playing with dirt, … [a]nd this is the source of all pornography’.36 Compton Mackenzie, who sent Lawrence the portions of Ulysses that had appeared in The Little Review, reported that Lawrence was ‘horrified by it’ and said, ‘This Ulysses muck is more disgusting than Casanova. I must show that it can be done without muck.’37 Mackenzie wondered if Lady Chatterley and her lover were conceived at that moment – a thought perhaps suggested by the parallels between Molly’s relationship with Bloom and Connie Chatterley’s with Clifford.
In one way or another, Lawrence, Woolf, Gosse and Mansfield stood at different points along the continuum that W.B. Yeats had defined in an unpublished fragment probably written in 1913 as he thought about reactions of the public to various plays, including his own and those of John Synge: ‘Great art, great poetic drama is the utmost of nobility and the utmost of reality … If there is too much of the first all becomes sentimental, too much of the second all becomes sordid. Nobility struggles with reality, the eagle and the snake …’38 Ulysses had too much reality, particularly relating to the excretory functions of the human body, for many of Joyce’s contemporaries, and certainly for Lawrence. This was probably the aspect of Ulysses that caused Judge Woolsey to find its effect ‘somewhat emetic’. Judge Hand likely had this same aspect in mind when, using W.B. Yeats’s word ‘sordid’, he wrote that ‘[t]he book depicts the souls of men and women that are by turn bewildered and keenly apprehensive, sordid and aspiring, ugly and beautiful, hateful and loving.’ Hand’s insight that the law should protect expression of the hateful and the sordid, as well as the loving and the aspiring, recognizes literature’s duty, as Yeats put it in his 1907 address to the British Academy, to ‘name and number the passions and motives of men’, no matter how terrible.39 There was no room in Yeats’s aesthetic for Lawrence’s fastidious abhorrence of excrement.
Given Yeats’s broad understanding of the spectrum from the noble to the sordid, it is not surprising that he was an exception to the antipathy to Ulysses manifested by many other writers.40 His comments on Ulysses show one capacious mind grasping the genius of another, despite a different view as to the proper balance between the noble and the sordid, and the obstacles presented by the formal novelty of Joyce’s prose. For example, Yeats’s letter of 27 July 1922 to Ezra Pound reports that
I have read a great part of “Ulysses” and then gave myself a course of Trollope for a change and then just as I wanted to take up Ulysses again which I admire immensely, found my eyes out of sorts; this does not mean that I do not see the immense importance of the book, and it has been Trollope not it that destroyed my eyes. I read a few pages of Ulysses at a time as if he [sic] were a poem. Some passages have great beauty, lyric beauty, even in the fashion of my generation, and the whole book incites to philosophy.41
Thus Joyce found his way into the first edition of Yeats’s philosophical book, A Vision, which, as Ellmann put it, relates Ulysses to the ‘seemingly dissimilar writings of Pound, Eliot, and Pirandello’ by identifying their shared characteristic of ‘fragmenting an earlier unity of consciousness’.42 Yeats identified Joyce’s contribution to this dissociation as breaking up ‘the logical processes of thought by flooding them with associated ideas or words that seem to drift into the mind by chance’ throughout ‘the vulgarity of a single Dublin day prolonged through 700 pages …’43
Yeats was a vigorous defender of Joyce in public. Speaking for himself and the other judges when he awarded the literary prize at the Tailteann Games in Dublin in 1924, he said that, although Joyce as a non-resident was ineligible, ‘we feel … that it is our duty to say that Mr. James Joyce’s book, though as obscene as Rabelais, and therefore forbidden by law in England and the United States, is more indubitably a work of genius than any prose written by an Irishman since the death of Synge.’44 Three years later, speaking in the Irish Senate during a debate on copyright law, Yeats confessed, ‘I do not know whether Joyce’s Ulysses is a great work of literature, I have puzzled a good deal over that question … All I will say is that it is the work of an heroic mind.’45
Trailing behind Yeats, much of the literary establishment only gradually recognized the fullness of Joyce’s achievement. The warm critical approbation of the judiciary contributed to that process, influencing Joyce’s reception by other writers and the reading public. Indeed, because Woolsey’s decision was printed as a sort of preface in the Random House edition of Ulysses until 1986, and in The Bodley Head edition until 1960, countless readers first saw Joyce’s novel through the lens of Woolsey’s legal decision, which may be the most widely read judicial opinion in history. The encounter of law and literature in the trials of Ulysses thus had profound implications for both law and literature.
Ironically, and more than a little surprisingly, some literary scholars, writing long after the Ulysses decisions had altered the law of obscenity and the practice of publishers, began to criticize the Ulysses opinions, especially Judge Woolsey’s, for being too deferential to literature and literary critics. The process began with the distinguished scholar Leslie Fiedler’s contention that Woolsey’s decision was based on two ‘well-intentioned lies’.46 The first ‘lie’ wasn’t anything Woolsey said. Rather it was what Fiedler thought was ‘the assumption’ behind Woolsey’s statement that Joyce was seeking ‘to make a serious experiment in a new literary genre’. The underlying assumption perceived by Fiedler was that ‘whatever is truly literature’ cannot be obscene.47 Fiedler maintains that this assumption – so dear to Margaret Anderson’s heart – is ‘palpably false as criticism’. Since Woolsey was writing a judicial opinion rather than literary criticism, and gave great deference to Ulysses’ quality as literature without adopting the absolutism of the challenged assumption as a legal principle, Fiedler’s criticism seems misplaced.
The other ‘lie’ claimed by Fiedler is what he describes as Woolsey’s finding that the novel ‘did not tend to excite sexual impulses or lustful thoughts’ and that ‘though perhaps “somewhat emetic’’, it was “nowhere aphrodisiac”’. Fiedler omits to say that Woolsey’s finding that Ulysses did not excite sexual impulses or lustful thoughts was qualified by his statement that such was the ‘net effect’ of reading the book ‘in its entirety’. Although Woolsey’s ‘nowhere aphrodisiac’ statement was not explicitly so qualified, his opinion is susceptible to a reading that accommodates the notion that, as the Second Circuit later explicitly said, certain passages of the novel could excite lustful thoughts. The ambiguity of Woolsey’s opinion is best understood in the context in which it was written: Woolsey was a trial court judge bound to adhere to the decision of the Second Circuit in the Bennett case that any excitation of sexual desire rendered the entire work obscene. As a trial judge, he lacked the power, exercised by the Second Circuit when the government appealed his decision, to overrule Bennett and grant literature a qualified immunity from the law of obscenity.
Paul Vanderham’s James Joyce and Censorship builds on Fiedler’s critique, but addresses Woolsey’s opinion as a judicial decision, rather than as literary criticism. Vanderham argues that the opinion is based on an erroneous theory about literature and thus fails ‘to provide a lasting foundation for freedom of speech’ and encourages ‘a dangerous indifferentism’.48 The erroneous theory of literature that Woolsey’s opinion assertedly ‘embraces and elaborates’ is what Vanderham calls the ‘esthetic theory’, which he defines as the idea that ‘art affects nothing’, that ‘people are not influenced by what they read’.49 Vanderham points to no place where Woolsey says this. Rather, he asserts that the ‘theory’ or ‘logic’ of Woolsey’s decision is that books do not affect readers.50 Vanderham’s assertion is flatly contrary to the opinion’s elaborate effort to measure the effect of the book on ‘l’homme moyen sensuel’ and its finding that the book is more emetic than aphrodisiac. A finding that the book tends to induce vomit rather than lust cannot fairly be said to be based on the theory that books have no effect on readers.
Given the absence of any reference to the esthetic theory in the text of Woolsey’s opinion, Vanderham seeks support for his argument in two minor aspects of Ernst’s brief. The first is a reference in a footnote to pages of Stuart Gilbert’s James Joyce’s Ulysses in which Gilbert quotes the passage from A Portrait of the Artist as a Young Man that, as recounted in Chapter 3, JBY had recommended to Quinn in 1920. In that passage, Stephen Dedalus espouses the theory that beauty induces stasis rather than the kinetic reactions of desire or loathing.51 The second is the assertion that Ernst argued that ‘people are not influenced by what they read’.52 In fact, Ernst’s brief merely expresses doubt that people are influenced by what they read, and then proceeds on the assumption that they are.53 But Ernst’s brief is a side issue. The important point is that Woolsey’s opinion neither quotes Stephen Dedalus’s theory nor asserts that readers are not affected by what they read. The fact that a judge rules in favour of an advocate’s client does not necessarily mean that the judge has accepted all – or even any – of the advocate’s arguments. The judge’s opinion must be evaluated on its own terms.
Vanderham repackages his ‘esthetic theory’ critique by referring to ‘Woolsey’s characterization of [l’homme moyen sensuel] as a sophisticated reader who experiences only esthetic emotion when reading literary works and upon whom Ulysses can have no kinetic effect whatsoever’.54 Woolsey said no such thing. He defined l’homme moyen sensuel as ‘a person of average sex instincts’, the equivalent in obscenity law of the reasonable man in the law of negligence. Vanderham’s impression of Woolsey’s reaction to Ulysses as a reader is not a ‘characterization’ by Woolsey. This misnomer may result from failing to distinguish between the two roles performed by Woolsey. He was deciding a legal question when he determined that the proper test of obscenity was the book’s effect on a person of average sex instincts. This was an important – if implicit – determination and the Second Circuit’s explicit affirmance on this point fundamentally changed the law of obscenity. Vanderham seems to have no quarrel with this aspect of Woolsey’s decision. Rather, he objects to the fact that Woolsey, as trier of fact, i.e., in the role normally performed by the jury, found that the ‘net effect’ of the particular book at issue was not to excite sexual impulses. But this is simply a finding of fact about a particular reader’s experience of a particular book – not a statement of law.
Joseph Kelly’s book Our Joyce: From Outcast to Icon, like Vanderham’s, focuses on Woolsey’s application of the law in his role as finder of fact, rather than on his and the Second Circuit’s rulings as to the proper legal standards to be applied by the finder of fact.55 Although Kelly allies himself with what he describes as Judge Manton’s position that ‘the testimony of literary experts should not take the place of the Hicklin rule’,56 he does not explicitly argue that critical opinion should be inadmissible in obscenity cases. Rather, he argues that Ernst’s reliance on experts implicitly suggested to Woolsey that the average reader of Ulysses was equivalent to the experts, and thus the book ‘was not obscene because only those at the top of the social ladder would read it’.57 According to Kelly, Woolsey ‘subscribed to the prejudice that Ernst was exploiting’ and did not gauge the effect of Ulysses on ‘the lower classes and the uneducated …’58
There is no prejudice in Woolsey’s opinion. He cites experts to establish the literary quality and importance of Joyce’s writing, rather than to narrow the scope of his readership. Kelly’s argument concerning expert opinion is really not with Ernst or Woolsey, but with the legal principle articulated by the Court of Appeals that the quality of a work as literature gives it a qualified immunity from the law of obscenity, even though the work might have ‘a tendency to corrupt’ those ‘most susceptible to such influences’. To the extent Kelly is arguing that Woolsey, as the finder of fact, was required to consider the effect of Ulysses on those most susceptible to being corrupted, he is quarrelling with the law declared by the Court of Appeals. Manton advanced the contrary view, and did not succeed.
Kelly re-frames his argument by faulting Ernst for asserting that Ulysses was a ‘classic’, which, in Kelly’s view, implied that it would be ‘read only by a narrow audience in a rarefied atmosphere’. Confusing one of Ernst’s arguments with what the Court of Appeals actually decided, Kelly argues that Ernst’s ‘victory was pyrrhic, since it depended so heavily on establishing that the book was a classic’. It was good advocacy for Ernst to try to take advantage of the exception for ‘classics’, but, as discussed above, the Court of Appeals rejected that jerry-built structure in favour of a broad ‘dominant effect’ test that applied to all literature. Hand’s decision did not limit its holding to books targeted to a rarefied readership. ‘The importation of obscene books is prohibited generally,’ Hand wrote, ‘and no provision is made permitting such importation because of the character of those to whom they are sold.’ Hand explicitly contemplated that the doctrine he articulated would apply to all literature. Moreover, he specifically eschewed reliance on the notion that Ulysses was equivalent to the time-tested classics. ‘We may discount the laudation of Ulysses by some of its admirers’, he wrote, ‘and reject the notion that it will permanently stand among the great works of literature …’ That it was literature was sufficient. Repeating the point later in the opinion to emphasize the breadth of his ruling, Hand wrote, ‘It may be that Ulysses will not last as a substantial contribution to literature’, but noted that the same was true of many serious efforts of the mind that deserve immunity from the stifling effects of the law of obscenity.
Although Fiedler, Vanderham and Kelly do not fully engage with the import of the Ulysses decisions, their energetic critique is a reminder that the issues addressed in the groundbreaking opinions by Judges Woolsey and Hand are still very much alive.59 More dialogue between the realms of law and literature is necessary to clarify misunderstandings about the significance of the Ulysses decisions and fortify the societal commitment to the importance of literature’s truth and beauty that is the foundation of authorial freedom.60
1 Phillip Brooks, ‘Notes on Rare Books’, New York Times (12 May 1935); Morris L. Ernst, ‘Reflections on the Ulysses Trial and Censorship’, James Joyce Quarterly (Fall 1965) (Documents 44 at 51–2).
2 Boyer 267.
3 Pope v. Illinois, 481 U.S. 497 (1987).
4 Spoo describes Marvin Miller’s edition at 257–8.
5 Letter of 17 January 1934 from Bennett Cerf to Paul Leon (Documents 357).
6 Letter to Margaret Kastor of 30 December 1931, in Spoo at 239.
7 As noted above, Spoo traces the development of the practice of trade courtesy in his authoritative Without Copyrights.
8 Letter of 26 December 1933 from Bennett Cerf to John Holroyd-Reece. James Joyce-Paul Leon Papers, National Library of Ireland, quoted in Spoo at 249–50.
9 Letter of 20 December 1933, contained in the John Munro Woolsey papers, Yale Law School, New Haven, Connecticut. Robert Spoo generously drew this letter to the author’s attention.
10 Statement by Random House representative Saxe Commins, quoted in New York World Telegram (16 May 1934) (Documents 444). See also Jeremy Lewis, Penguin Special: The Life and Times of Allen Lane (London: Penguin, 2005) (‘Lewis’) 63.
11 Letter of 27 October 1931, JLIII, 232–3.
12 Letter to Constantine P. Curran. JLI, 338.
13 Letter from Harriet Shaw Weaver to Joyce, 13 May 1932, cited by Ellmann at 653.
14 Letter to T.S. Eliot, 22 February 1932, JLI, 314–15.
15 Sisley Huddleston, Back to Montparnasse (Philadelphia: J.P. Lippincott, 1931) 195.
16 BNA, H.O. 144/20071. Birmingham discusses the Home Office file at 335–6.
17 Michael Adams, Censorship: The Irish Experience (Tuscaloosa: University of Alabama Press, 1968) (‘Adams’) 13–15.
18 Id. at 39–63.
19 Letter of 2 September 1932, CL InteLex 5725.
20 Letter of 5 October 1932, JLI, 325.
21 Adams, 31; 171–2.
22 Joseph Brooker, Joyce’s Critics (Madison: University of Wisconsin Press, 2004) 186–7.
23 Lewis 319.
24 C.H. Rolph, ed., The Trial of Lady Chatterley (London: Penguin, 1961) (‘Rolph’) 142.
25 Statement of Penguin Books, quoted in John Sparrow, Regina v. Penguin Books Ltd., 18 Encounter 35 (February 1962).
26 Abe Krash, The Trial of Lady Chatterley, a review, Yale Law Journal, 71 (1962) 1351, 1359.
27 Rolph 17.
28 Anne Olivier Bell, ed., The Diary of Virginia Woolf, Vol. 2 (New York: Harcourt Brace Jovanovich, 1977–84) 189, 199 (16 August and 6 September 1922). Woolf and her husband declined to publish Ulysses at their Hogarth Press. (Ellmann 443)
29 Virginia Woolf, ‘Mr. Bennett and Mrs. Brown’, 1924, reprinted in Woolf, The Captain’s Death Bed and Other Essays (London: The Hogarth Press, 1950).
30 Letter of 7 June 1924 to Louis Gillet, in Louis Gillet, trans. by Georges Markow-Totevy, Claybook for James Joyce (New York: Abelard-Schuman, 1958) 31–2.
31 Letter of 15 January 1922 to Sydney Schiff in John Middleton Murry, ed., The Letters of Katherine Mansfield, Vol. II (New York: Knopf, 1929) 434.
32 Letter of 11 June 1921 to Sylvia Beach, quoted in JLIII, 50.
33 Quoted in Fitch 124.
34 Dorothy Brett, Lawrence and Brett: A Friendship (London: Martin Secker, 1933) 79.
35 D.H. Lawrence, ‘Pornography and Obscenity’, 1929, reprinted in D.H. Lawrence, Sex, Literature and Censorship (New York: Twayne, 1953) 76.
36 Id.
37 Compton Mackenzie, My Life and Times, Octave Five (London: Chatto & Windus, 1966) 167.
38 Quoted in A. Norman Jeffares, W.B. Yeats: Man and Poet (2nd edn, London: Routledge & Kegan Paul, 1962) 318 n. 70A.
39 W.B. Yeats, Samhain 1908, in Explorations (New York: Collier, 1962) 241–3.
40 Nor did he hesitate to praise Chatterley. Writing to Olivia Shakespear in 1933, he commented that, unlike Frank Harris’s memoirs, in which ‘the sexual passages were like holes burned with a match in a piece of old newspaper … “Lady Chatterley” is noble … Those two lovers, the gamekeeper & his employers [sic] wife, each separated from their class by their love, and by fate, are poignant in their loneliness, & the coarse language of the one, accepted by both becomes a forlorn poetry uniting their solitudes, something ancient, humble & terrible.’ (Letter of 22 May 1933, CL InteLex 5879)
41 Id. at 4152.
42 Richard Ellmann, Yeats and Joyce (Dublin: Dolmen Press, 1965) 470.
43 W.B. Yeats, A Vision (London: T. Warner Laurie, 1925) 211–12.
44 W.B. Yeats in The Irish Statesman, quoted in R.F. Foster, W.B. Yeats: A Life, Vol. II: The Arch-Poet (Oxford: Oxford University Press, 2003) 267.
45 W.B. Yeats, Speech in the Irish Senate, 4 May 1907, in Donald R. Pearce, ed., The Senate Speeches of W.B. Yeats (London: Faber and Faber, 1960) 148.
46 Leslie Fiedler, ‘To Whom Does Joyce Belong?’ in Heyward Erlich, ed., Light Rays: James Joyce and Modernism (New York: Horizon Press Publishers, 1984) 26 (‘Fiedler’) 29.
47 Id. at 29. Fiedler uses the word pornography rather than obscenity but the context suggests he equates the two terms.
48 Vanderham 11–12, 167.
49 Id. at 11, 115, 166.
50 Id. at 166.
51 Id. at 127–8; 163. See Documents 249 and 270; and Stuart Gilbert, James Joyce’s Ulysses (1930; New York: Vintage Books, 1955) 19–23.
52 Id. at 166.
53 Documents 266.
54 Vanderham 144.
55 Joseph Kelly, Our Joyce: From Outcast to Icon (Austin: University of Texas Press, 1998) (‘Kelly’).
56 Id. at 98.
57 Id. at 120.
58 Id. at 119–20.
59 Birmingham’s The Most Dangerous Book does not address in detail the way in which the federal Ulysses decisions engaged with and transformed the law of obscenity.
60 A notable contribution to this dialogue is Robert Spoo’s incisive critique of Judge Woolsey’s critics in his ‘Judging Woolsey Judging Obscenity: Elitism, Aestheticism, and Reasonable Libido in the Ulysses Customs Case’, James Joyce Quarterly, Vol. 50. No. 4 (Summer 2013) 115.