During the '30s: Assessing literary intent

The most important obscenity ruling of the decade (and perhaps the early 20th century) was laid down in U.S. District Court in New York by Judge John M. Woosley on December 6, 1933 . Newspapers followed the trial closely. The book in question, again James Joyce's Ulysses, underwent many tribulations on its way to an American publication. Sylvia Beach published the completed novel in Paris in 1922 after the Little Review publication was halted. Joyce sued an American for publishing edited parts of the novel after the 1921 obscenity ruling, but found he did not have an American copyright since the work had been declared obscene.

Headed by Bennett Cerf, Random House, Inc., was determined to publish the entire book on American soil. To do so, the company arranged to have a copy seized at Customs, thereby invoking a challenge to the ban against an import of obscene literature, which was enforced by the Section 1305 of the Tariff Act of 1930. As defined by the court, “obscene” meant “tending to stir the sex impulses or to lead to sexually impure and lustful thoughts.” Judge Woosley laid out his ruling in fittingly eloquent prose, declaring “in Ulysses, in spite of its unusual frankness, I do not detect anywhere the leer of the sensualist. I hold, therefore, that it is not pornographic.” ( United States vs. One Book Entitled Ulysses). Woosley went on to state:

“Whether a particular book would tend to excite such impulses and thoughts must be tested by the Court's opinion as to its effect on a person with average sex instincts—what the French would call l'homme moyen sensual —who plays, in this branch of legal inquiry, the same role of hypothetical reagent as does the ‘reasonable man' in the law of torts and ‘the man learned in the art' on questions of invention in patent law …

It is only with the normal person that the law is concerned. Such a test, as I have described, therefore, is the only proper test of obscenity in the case of a book like Ulysses which is a sincere and serious attempt to devise a new literary method for the observation and description of mankind.

I am quite aware that owing to some of its scenes that Ulysses is a rather strong draught to ask some sensitive, though normal, persons to take. But my considered opinion, after long reflection, is that whilst in many places the effect of Ulysses on the reader undoubtedly is somewhat emetic, nowhere does it tend to be an aphrodisiac.

Ulysses may, therefore, be admitted into the United States. Click here for the full-text opinion.

The victory emphasized to a vast audience a few new standards by which books could be judged:

  • Books should be judged as a whole, not by passages as laid out by Hicklin.
  • A book is only obscene if it serves as an aphrodisiac for a reasonable person.
  • Intent matters: Since Joyce was performing a literary experiment with Ulysses, his was a more noble effort; he did not have pornographic intent.

These standards were adopted by publishers as guidelines for future publication. Some, like the whole vs. parts argument, were validated in earlier cases such as 1933's People v. Viking Press, which featured the ruling of City Magistrate Benjamin Greenspan on Erkine Caldwell's God's Little Acre, brought up on complaint by one John Sumner. Greenspan observed that “the court must find that the tendency of the book as a whole, and indeed its main purpose, is to excite lustful desire and what has been rather fancifully called ‘impure imaginations'” (Sova 65-66). Woosley's ruling enforced this on a grander scale. Courts took into consideration the intent or literary merit of a book, which is perhaps why Jim Tully's Ladies in the Parlor met with censor and not success in 1935.

In part due to the Woosley ruling, the 1930s saw an easing of censorship in books due to so-called obscenity. Other media, however, did not fare quite as well. Under pressure, Hollywood adopted the famous Movie Code in 1935.