Carving a literary exception: The obscenity standard and Ulysses

What did I tell you? raged Quinn. You're damned fools trying to get away with such a thing as "Ulysses" in this puritan-ridden country.... I don't think that anything can be done. I'll fight for you, but it's a lost cause. You're idiots, both of you....You haven't an ounce of sense.

-Margaret Anderson, My Thirty Years' War (215)

As it turns out, great patron of the arts and prima donna lawyer John Quinn was right. Well, partly right. In 1921, Margaret Anderson and Jane Heap were convicted of publishing "indecent matter" (1) in The Little Review--the concluding part of "Nausicaa," the thirteenth episode of Ulysses, in which Gerty MacDowell deliberately strikes a provocative pose for the concupiscent Leopold Bloom--and fined $50 each (Anderson, Thirty Years' War 221). Attempting to buttress the standing of The Little Review, Quinn produced three literary experts as witnesses to "testify that Ulysses in their opinion would not corrupt" readers (Anderson, "'Ulysses' in Court" 22). The opinions of John Cowper Powys, Philip Moeller, and Scofield Thayer were, however, of little consequence. The spirit of John Sumner, the head of the New York Society for the Suppression of Vice, was to prevail. The panel of three judges was concerned only with a narrow question: whether certain passages of Ulysses could be deemed legally obscene under New Yo rk law. The conviction came as no surprise, as the decision was made by merely reviewing isolated portions of the text considered wholly apart from the literary merit of Ulysses. What Quinn did not foresee, however, was the ultimate vindication of Ulysses in the federal courts by judges who implicitly agreed with Anderson that "the words 'literature' and 'obscenity' can not be used in conjunction any more than the words 'science' and 'immorality' can" ("'Ulysses' in Court" 22). First Amendment advocates Morris Ernst and Alexander Lindey of Greenbaum, Wolff & Ernst strategically used Ulysses to change the obscenity standard of all literature. The intellectual significance of Ulysses was the catalyst for what has essentially become an exception to obscenity laws for literary works.

The development of the law: A sampling of censorship cases preceding the Anderson and Heap prosecution

What likely happened to Margaret Anderson and Jane Heap was that they fell victim to the court's use of an obscenity standard first enunciated in the English case Regina v. Hicklin in 1868. In Hicklin, the text under consideration was The Confession Unmasked; Shewing of the Depravity of the Romish Priesthood, the Iniquity of the Confessional, and the Questions Put to Females in Confession, a diatribe alleging moral shortcomings of the Catholic Church. According to the court, about half of the pamphlet related to "casuistical and controversial questions which are not obscene, but the remainder of the pamphlet is obscene in fact as relating to impure and filthy acts, words, and ideas" (363). As part of the determination that the pamphlet was obscene, Lord Chief Justice Cockburn articulated the "test of obscenity" as

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. (371)

With regard to the work in question, the court determined that "it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character" (371). This harsh rule became the nemesis of free-speech advocates. As one outraged court in Pennsylvania observed, this rule, if strictly applied, "renders any book unsafe, since a moron could pervert to some sexual fantasy to which his mind is open the listings in a seed catalogue. Not even the Bible would be exempt" (Commonwealth v. Cordon 124). (2)

To the dismay of First Amendment advocates, Hicklin found its way into American jurisprudence. In United States v. Bennett, the appellate court upheld a trial court's charge to the jury that tracked the Hicklin obscenity test. The appellate court concluded that the trial judge did not err in his charge that the jurors should "apply this test to these marked passages, and, if, judged by this test you find any of them obscene or of an indecent character, it will be your duty to find the prisoner guilty" (Bennett 1104). In justifying the application of the obscenity test to mere passages instead of considering the text as a whole, the court relied on an earlier case that held: "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" (1104). Accordingly, the trial court's adjudication that the book Cupid's Yokes, or the Binding Forces of Conjugal Life is o bscene was upheld.

Less than 20 years later, upon reviewing a jury charge on obscenity that restated the Hicklin standard, the Supreme Court gave its implicit endorsement, commenting that "the test prescribed for the jury was quite as liberal as the defendant had any right to demand" (Rosen v. United States 43). In fact, the mark of Hicklin can be seen well into the first part of the twentieth century, especially in Massachusetts, where the courts repeatediy deemed works of literature obscene. For example, the court banned the book titled Three Weeks because it was obscene and "tended to corrupt the morals of youth" (Commonwealth v. Buckley 911). Buckley was then cited by later cases such as Commonwealth Friede to support a ban on Theodore Dreiser's American Tragedy. In Friede, the court found no error in the trial court's jury charge that a verdict of guilty must be returned "if these pages that are complained of, the language that is set out in the bill of particulars, is in your mind obscene, impure, indecent, and manifestly tending to the corruption of youth" and that it "makes no difference what the object in writing this book was, or what its whole tone is"--a standard that echoed the holding in Hicklin (Friede 474).