Looking Back to Ulysses: A Case Study in Obscenity Law

By Dan Spinelli

Dan Spinelli is a freshman at the University of Pennsylvania studying Philosophy, Politics, and Economics (PPE).

Fitting for a work with parallels to The Odyssey, James Joyce’s Ulysses had a journey of its own. Wandering from Joyce’s beginnings with the novel in 1915 to its official publication in the U.S., the work finally reached “home” in 1933. [1] The ensuing 18 years proved to be a voyage marked by litigation, illicit publication, and more litigation…eventually producing one of the most classic defenses of the freedom to express and create works of artistic value.

The battle over Ulysses began in 1921, when Margaret Anderson and Jane Heap, publishers of The Little Review, were convicted for publishing “indecent matter” after serializing an especially scandalous chapter of Ulysses. [2] The Little Review had been serializing the work since March of 1918. [3]

When Anderson and Heap were first introduced to Ulysses, they were so enamored with the work that they swore to “print it if it’s the last effort our lives.” [4] Their noble effort ran into trouble, however, when they published the Nausicaa chapter. In this portion of the work, protagonist Leopold Bloom voyeuristically lusts after the young Gerty MacDowell. Joyce’s signature stream-of-consciousness style reveals the erotic nature of Bloom’s emotions in an intimate, overtly sexual manner.  Without looking at the novel’s merit in its entirety, the judges ruled against The Little Review, convicting Anderson and Heap on the charges of presenting obscene material in the Nausicaa chapter and fining its publishers $50 each.

As Marisa Anne Pagnattaro explains in her article, “Carving a Literary Exception: The Obscenity Standard and ‘Ulysses,’” Anderson and Heap fell victim to an unnecessarily strict obscenity standard in U.S. jurisprudence. [5] In the 1879 case of United States v. Bennett, the Southern District Court of New York found that “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.” [6] The district court relied on a tradition in English law, established in the 1868 case of Regina v. Hicklin, to determine obscenity based on the tendency of the matter in question “to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” [7]

The dangerous standard of adjudicating the obscenity of a work based only on isolated passages finally came under attack in the New York Supreme Court with the 1922 case of Halsey v. New York Society, in which an agent of the New York Society for Suppression of Vice caught Ray Halsey selling an English translation of Mademoiselle de Maupin, the controversial novel by Théophile Gautier. The Court presciently decided that “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 a statute…the book, however, must be considered broadly as a whole.” [8] The Halsey case inspired various federal judges to soften obscenity standards. With ambiguity now surrounding obscenity statutes in America, lawyers Morris Ernst and Alexander Lindey saw the waters ripe to reintroduce Ulysses into the legal arena as a way to challenge obscenity jurisprudence.

After a shipment of copies of Ulysses was seized under the U.S. Tariff Act of 1930, the U.S. filed suit in the Southern District of New York federal court. The landmark case of U.S. v. One Book Called “Ulysses” had begun.

Because the shipment included unabridged copies of the novel, Ernst and Lindey could finally make a case for the literary merit of Ulysses as a whole, rather than defend certain scurrilous passages. Judge John M. Woolsey presided over the case. In one notable exchange with the U.S.’s attorney, Woolsey pointed out the realism of Joyce’s stream-of-consciousness technique, stating, “I must confess, that while listening to you I have been thinking at the same time about the Hepplewhite furniture behind you.” [9] The judge ultimately penned an eloquent defense of freedom of expression of the arts.

Abandoning the standard set forth in Hicklin, Woolsey advocated for an interpretation of a work of art’s obscenity in light of the entire work, and called for an adjustment of the obscenity standard to fit the book’s style. Joyce’s innovative technique, in Woolsey’s opinion, required a new standard of determining obscenity. Is Leopold Bloom’s attitude toward Gerty MacDowell described in a way that is “lascivious and indecent”, or is it merely a realistic representation of the thoughts of an insecure, cuckolded adult male? Woolsey, with wit and grace, chose the latter view. [10]

On appeal, the 2nd Circuit upheld Woolsey’s view and added a more expansive legal implication. In the Court’s view, “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…” [11] In a similar manner to that of Woolsey, the appellate court saw value in Joyce’s innovations, concluding that “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”. [12]

While Ulysses broke new ground for authors’ freedom of expression, the fight against censorship was far from over. The Supreme Court eventually adopted Woolsey’s opinion in the 1957 case of Roth v. United States, in which the Court officially ended the use of the Hicklin test in American jurisprudence.  Conservative censors would yet have their way, with controversial works of art like Allen Ginsberg’s poem Howl still on the horizon. For now, however, Ulysses has won.

[1] “Ulysses is ruled not obscene.” 2014. The History Channel website. Oct. 6 2014. http://www.history.com/this-day-in-history/ulysses-is-ruled-not-obscene.
[2] Pagnattaro, Marisa Anne. “Carving a Literary Exception: The Obscenity Standard and ‘Ulysses.’” Twentieth Century Literature, Vol. 47, No. 2 (Summer, 2001), pp. 217-240.
[3] "University at Buffalo Libraries." Case III: Seeing Ulysses into Print. SUNY Buffalo, n.d. Web. 07 Oct. 2014. http://library.buffalo.edu/pl/exhibits/joycebloomsday/caseIII/.
[4] Margaret Anderson, My Thirty Years’ War, New York: Covici, Friede, 1930, 174-75.
[5] Pagnattaro, Marisa Anne. “Carving a Literary Exception: The Obscenity Standard and ‘Ulysses.’” Twentieth Century Literature, Vol. 47, No. 2 (Summer, 2001), pp. 217-240.
[6] United States v. Bennett, 24 Fed. Cas. 1093 (Cir. S.D.N.Y. 1879).
[7] Regina v. Hicklin, 3 Q.B. 360 (1868)
[8] Halsey v. New York Society for Suppression of Vice, 234 N.Y. 1 (1922).
[9] United States v. One Book Called “Ulysses,” 5 F. Supp. 182 (S.D.N.Y. 1933).
[10] Ibid.
[11] United States v. One Book Entitled Ulysses by James Joyce, 72 F.2d 705 (2nd Cir. 1934).
[12] Ibid.
Photo credit: Flickr user Dennis Jarvis