United States v. One Book Entitled ‘‘Ulysses,’’ 72 E. 2nd 705 (1934)

2012-09-20 15:26:38

The legal regime organized around the Hicklin rule was successfully challenged in 1934 when a Second Circuit Court of Appeals panel by a vote of two to one affirmed a lower court’s decision lifting a federal ban on importing James Joyce’s controversial Ulysses into the United States. Judges Learned Hand and his cousin Augustus Hand, who wrote the opinion, made up the majority; Martin T. Manton wrote the dissent.

Thirty years earlier, though, Learned Hand, then a federal district court judge, issued an opinion United States v. Kennerley (209 F. 119 [SDNY 1913]) that foreshadowed his position in Ulysses. He complied with the Hicklin rule in Kennerley but wondered whether Hicklin coincided with the ‘‘understanding and morality of the present time.’’ He complained in particular that because two pages of the book in question in Kennerley might tempt minds ‘‘open to...immoral influences,’’ Hicklin required that the whole book be declared obscene. If courts continued to follow Hicklin, he wondered whether the rule would ‘‘reduce our treatment of sex to the standard of a child’s library.’’ In an intimation of the concept of ‘‘contemporary community standards’’ that would emerge in the 1980s, Hand asked, ‘‘[S]hould not the word ‘obscene’ be allowed to indicate the present critical point in the compromise between candor and shame at which the community may have arrived here and now?’’

Two decades later, Hand’s urgings for a new rule were heeded by District Court Judge John M. Woolsey, when he ruled against the federal government’s motion to confiscate Ulysses under the 1930 Tariff Act. Ulysses had been a cause celebre for more than a decade. To take advantage of the book’s notoriety, its American publisher and his lawyer deliberately planned the book’s confiscation and the subsequent litigation so as to gain the most publicity and to enhance sales. Woolsey appraised Ulysses as a whole and refuted the Hicklin standard. According to Woolsey, the question should be whether ‘‘reading ‘Ulysses’ in its entirety’’ excites immorality by ‘‘its effect on a person with average sex instincts.’’

Augustus Hand, charged with the responsibility for explaining the circuit’s ruling, dismissed United States v. Bennett (1879) that imported the Hicklin rule as not representing the law and distinguished Rosen v. United States (1896) as dealing with pictorial representations. Ulysses, first of all, was not obscene. ‘‘The book as a whole is not pornographic, and, while in not a few spots it is coarse, blasphemous, and obscene, it does not, in our opinion, tend to promote lust. The erotic passages are submerged in the book as a whole and have little resultant effect.’’ And, second, instead of the Hicklin rule, ‘‘the proper test of whether a given book is obscene is its dominant effect’’ and the ‘‘question in each case is whether a publication taken as a whole has a libidinous effect.’’

ROY B. FLEMMING

References and Further Reading

Gunther, Gerald. Learned Hand: The Man and the Judge. New York: Alfred A. Knopf, 1994.
Moscato, Michael, and Leslie LeBlanc, eds. The United States of America v. One Book Entitled Ulysses by James Joyce. Frederick, MD: University Publications of America, 1984.
Stevens, Kenneth R. ‘‘’Ulysses’ on Trial.’’ in Joyce in Texas, edited by Dave Oliphant and Thomas Zigal. Austin, TX: Humanities Research Center, University of Texas, 1983.

Cases and Statutes Cited