Using history to move forward the public dialogue on free speech and social justice.

One Book Called Ulysses

Befitting an unusual book, the District Court opinion in the obscenity case against Ulysses is quite unusual, too.A Justice John M. Woolsey wrote the opinion, in which he declares that the book was not obscene. Therefore, it did not violate the Tariff Act of 1930 that banned the importation of obscene books. His opinion in December of 1933, was certainly unusual in that it was a rare high-profile overturning of an obscenity ban. However, it was also unusual in the novel argument that Woolsey made.

Obscenity is a tricky legal concept, and its definition and the implications of that definition are notoriously difficult to pin down. Obscenity statutes were full of what Judge Woolsey called “the spectrum of condemnatory adjectives,” that did not clarify its definition. Woolsey grapples with this difficulty in his decision as well, but rather than relying on such adjectives, he makes two argumentative moves. First, he analyzes the book and its context and seeks to know if the book is “pornographic” which he defines as “exploiting obscenity.” He connects this to the author’s intent in writing the book, and says that since Joyce did not intend a pornographic book, it is not pornographic. Second, Woolsey emphasizes the stricter legal definition of obscenity, whether something tends to “stir the sex impulses or to lead to sexually impure and lustful thoughts.” Although he presents this as a more “objective” criteria, he also points out the difficulty of assessing if something is obscene from the point of view of a theoretical average person. To do this, he conducts an experiment, asking two of his friends to tell him if they think the book is obscene. Both declare the book is not, so, Judge Woolsey concludes, the book is not and can therefore be imported safely.

It isn’t hard to see the difficulty of nailing down obscenity in this opinion. Woolsey seems to differentiate between what is obscene because of its impact on an audience (real and imaginary), and what is pornographic because of its author’s intent.B Neither one of these are objective criteria, which Woolsey acknowledges explicitly in the latter, and seems to understand implicitly with the former. If the former criteria were objective, then Woolsey would not have needed to ask the opinion of his friends. Woolsey uses his friends’ judgments on the book to get around his own “idiosyncrasies” in his interpretation of obscenity. He reasons that he alone might find inoffensive what others take exception to. But this is not objective. If his friends had returned a verdict that indeed the book was obscene, would Woolsey then conclude that the book was so? If they were the only two of either opinion, would Woolsey be right to rule either way? But, after all, what objective criteria could Woolsey call upon here? The problem here is not Woolsey, who gave the book a fair consideration; the problem is that obscenity statutes have this inherent difficulty.

Yet, in 1933, the decision was hailed as a victory for having a more definite and objective standard for obscenity because, the previous standard, comparatively, was far worse. The previous standard for obscenity was adopted from an 1868 English case, Regina v. Hicklin. The court in that case ruled that if something was obscene depended on “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”C This standard is very broad both because it relies on a mere “tendency” rather than intent or outcome, and because such a tendency applies not only to the impact of the book on the intended audience but all audiences “into whose hands a publication of this sort may fall.” In light of such a broad standard being used for decades to ban many books, movies, and more, it makes sense that Woolsey’s decision was not only celebrated by the author and the ACLU, whose lawyers argued the case, but by journalists, newspapers, readers, lawyers, judges, and professors. Woolsey’s opinion became widely available after it was written and was approvingly cited by many. It was hailed for its objective criteria, its clarity, its prose, and its establishment of a new criteria for judging obscenity (the “person with average sex instincts”) as opposed to the older, more puritanical criteria (“the tendency...to deprave and corrupt”).

It is important to be clear that the decision did not rest on First Amendment grounds. Justice Woolsey was not interested in any Constitutional question at all. He did not intend to call into question the Constitutionality of the Tariff Act of 1930, nor of any particular section of the law, nor of obscenity statutes in general. The public response, though, seemed to understand the implication of Woolsey’s argument. In his Foreword to the Random House edition of Ulysses Morris Ernst, the lead lawyer for the ACLU, described the potential impact of the decision as, “a major event in the history of the struggle for free expression.” He goes on to say:

It would be difficult to overestimate the importance of Judge Woolsey’s decision. For decades the censors have fought to emasculate literature...The Ulysses case marks a turning point. It is a body-blow for the censors. The necessity for hypocrisy and circumlocution in literature has been eliminated...Judge Woolsey has given us a formula which is lucid, rational, and practical.D

If books, movies, and so on had to have prurient interest to the average person in order to be declared obscene, then it would less of them would be censored. This was the ultimate impact of Woolsey’s argument. The Supreme Court eventually adopted a modified form his standard of the “person with average sex instincts” in the 1957 case Roth v. United States. The Court would add the application of community standards as to what constitutes obscenity and the effect was that less and less was considered obscene. In the case of Roth, literary erotica and nudist literature were allowed to circulate through the mail unencumbered by postal authorities. Roth in turn, would go on to form the basis for the Supreme Court decision in the 1957 CASE One, Inc. v. Olesen in which the court ruled that homosexuality was not inherently obscene.E

I am chiefly concerned though, with the impact of this decision, namely, who benefited from this narrower definition of obscenity? Was it the far-right or progressives? Throughout the late 19th and early 20th century, many womens’ rights activists argued for access to information about birth control. Free love advocates fought for the ability of women to marry whom they please and to get divorced. Queer poets and writers like Walt Whitman advocated for a more human, vigorous, free, and equal life. Yet each of these groups suffered intense censorship under obscenity statutes, most notably the so-called “Comstock Act” of 1873. Publications were removed, mail intercepted, speakers arrested by police, movies boycotted, and more. As a major target of obscenity statutes, it was these groups, who are forerunners for progressive politics today, who stood to gain tremendously under this newer doctrine. Furthermore, the case created a precedent that would go on to benefit the ability of the early gay rights movement to organize and communicate. The social justice work of all these groups was made easier by an expansion of free speech.

I still haven’t read Ulysses and it seems like much more could be said, particularly about efforts to censor the book. I look forward to addressing both in future posts.