'MOST INFAMOUSLY OBSCENE BOOK’ IN HISTORY PROTECTS DRAG AND WHAT AMERICANS THINK
AVANT GARDE ARTISTS IN NEW YORK CITY FOUGHT THE CRIMINAL JUSTICE SYSTEM FOR THE RIGHT TO PUBLISH JAMES JOYCE’S ULYSSES AFTER IT WAS BANNED FOR OPENING “ALL THE SECRET SEWERS OF VICE” IN 1920.
Brooklyn, Bushwick, 2010, House of Yes, Horror Show. Photo Credit JB Nicholas.
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The only thing that excites censors more than a drag queen is a teenage girl in panties.
Americans have a fictional teenage girl, in white underwear, to thank for the robust legal protections we enjoy for free thought, free speech and art of all kinds today. Even the sexually explicit and violent expression some believe should be banned.
For example, when a Federal judge struck down a new Florida law last week because it targeted "Drag Queen Story Time" he cited a Supreme Court decision that traces its history all the way back to the court decision that established the legal right for that fictional teenage girl to tell her story, panties included.
Her story was only one among the many stories writer James Joyce presented in his path-breaking Modernist novel Ulysses. The book also described adultery, scatology, a floating penis, rape, a rim job, D/s-themed letters and piss play, among other things. Progressive Era censors blocked some of it from being sent through the US Postal Service, but they didn't try to jail anybody for it. Until.
Until Gerty MacDowell spread her stockinged legs to reveal white panties, "and the garters were blue to match," to Leopard Bloom, Joyce's protagonist in Ulysses.
The censors lost their proverbial shit. To them, Ulysses wasn't a book, it was a bomb. Joyce wasn't a writer, he was a terrorist. A three-judge panel of the New York State Court of Special Session effectively banned the book for a decade.
Today, Joyce's Ulysses rests comfortably among Western literature's canonical works. Ulysses is the 20th Century's Odyssey and Joyce is its Homer. The book is taught in high school, even in Florida. But will it be tomorrow?
How, and why, Ulysses finally came to be published and protected by the law matters now more than ever.
America faces a wave of censorship. In addition to Florida, Federal judges in Tennessee and Utah also faced and struck down new restrictions on drag performances since the end of March. In each of these cases, judges used the legal protections for free expression established by the fight to have a court declare Ulysses legally protected art instead of obscene smut.
Maschinengewehr 08, MG 08, standard-issue German Army machine gun during World War I. Every German infantry company was issued six. MG 08 fired 450-500 high-powered 7.98mm rifle bullets every minute. Effective range: 2,000 meters. Photo Credit: Imperial War Musuem via Wikipedia.
The horrors of World War I (1914-1918) changed the world. The Great War killed 40 million people. Then a flu-driven plague (1918-19) killed at least another 50 million more. The dual catastrophes exposed previous social and political orders as false. Government couldn't protect you and God wasn’t saving you. Survivors staggered from the ruins of the past into a malformed future.
The Western world was gripped by an existential crisis that challenged every corner of the status quo. People questioned everything. No one had all the answers anymore. Now life is too complicated. Truth was relative. Personal happiness was no longer a one-size-fits all prescription.
Art was not immune from the crises. Realists strangled the last Romantics then spawned “Modernists.” Modern artists elevated the ordinary in whatever medium they worked in. Critics consider Joyce a pioneer of literary Modernism. His pathbreaking, stream-of-consciousness technique takes readers inside the minds of his characters. That's not always a pretty place to be, like life isn't always pretty to live. Ulysses presents it like it is. It's not a fairytale. It's real and raw.
Sex is central to much of it. Sometimes that sex is outlaw sex.
"It is, in short, perhaps the most faithful X-ray ever taken of the ordinary human consciousness," critic Edmund Wilson concluded in his review of Ulysses for the New Republic, 1922.
In Bloom's telling, Gerty isn't a victim. She's a co-conspirator. She wants to shatter the status quo as much as he does. Gerty
let him and she saw that he saw and then it went so high it went out of sight a moment and she was trembling in every limb from being bent so far back that he had a full view high up above her knee where no-one ever not even on the swing or wading and she wasn’t ashamed and he wasn’t either to look in that immodest way like that because he couldn’t resist the sight of the wondrous revealment half offered like those skirtdancers behaving so immodest before gentlemen looking and he kept on looking, looking.
It was night on a beach and fireworks were exploding in the sky.
The sight of her white panties turned Bloom on. He masturbated and came, "a rocket sprang and bang shot blind blank and O! then the Roman candle burst and it was like a sigh of O! and everyone cried O! O! in raptures and it gushed out of it a stream of rain."
Gerty saw it all, "Ah!" Bloom blushed, "coloured like a girl."
When Gerty stood up and walked "very slowly" away, "with a certain quiet dignity characteristic of her," Bloom got a surprise.
"She’s lame! O!," Bloom sees for the first time. He pities her for a moment, but quickly regains his joie de perv.
"Glad I didn’t know it when she was on show," Bloom thinks, before adding, "Hot little devil all the same. I wouldn’t mind."
Greenwich Village, Angel, 2004. Photo Credit: JB Nicholas.
Margaret C. Anderson "awoke one night curiously depressed from the realization that there was nothing inspiring in her life," according to the Chicago Tribune Foundation. The 28-year-old Indianapolis native fixed that by founding "the avant-garde literary magazine, The Little Review, in March 1914."
Anderson was so dedicated to her new life when money got scarce and she had to choose between paying rent and publishing she camped on the beach beside Lake Michigan for a few weeks.
Ben Hecht, then a young crime reporter, crossed paths with Anderson, fell in love with her and wrote for The Little Review.
"It was surprising to see a coiffure so neat on a noggin so stormy," Hecht revealed in his autobiography, Child of the Century. Anderson was sexy too, "chic as any of the girls who model today for the fashion magazines."
"The firecrackers I set off in that magazine," Hecht confessed, "may have been actually valentines composed for Margaret Anderson."
The free-living, free-thinking and free-loving Anderson met Jane Heap in 1916. They became lovers and co-editors. Together, through The Little Review, they introduced America to TS Eliot, William Butler Yeats, Ernest Hemingway and (pre-Fascist) Ezra Pound. They also featured radical work by Anarchist Emma Goldman, artist Baroness Elsa von Freytag-Loringhoven, Feminist Gertrude Stein, Poet Vachel Lindsay and Surrealist Andre Breton.
Anderson and company left Chicago and landed in New York City in 1917. Hecht lamented their departure, “Where is Athens now?”
Margaret C. Anderson. Photo Credit: Beinecke Rare Book & Manuscript Library, Yale University Library.
Jane Heap, John Rodker, Martha Dennison, Tristan Tzara, Margaret Anderson, ca. 1920s. Photo credit: Janet Flanner-Solita Solano Collection via Wikipedia.
Pound joined Anderson's team as "Foreign Editor" in 1916. He introduced them to Joyce. The Little Review published the first "episode" of Ulysses in March 1918. They had published about two-thirds of the book when they published the third and final installment of the 13th episode, Nausicaa (burner of ships), in the magazine's July-August 1920 edition.
Bloom's interlude with Gerty and her panties ends the episode.
A copy was allegedly mailed to the daughter of New York City lawyer Ogden Brower. Brower's daughter claimed to have not solicited or paid for it. The Little Review's lawyer, John Quinn, told Pound in a letter prosecutors said "the daughter 'read it and had been shocked' before 'demanding' of her father 'that the magazine be prosecuted.'"
Manhattan District Attorney Edward Swarm assigned the case to Assistant DA Joseph Forrester. Forrester summoned John Sumner, leader of a quasi-governmental group with legislatively-conferred police powers called the "Society for the Suppression of Vice." Sumner's agents discovered The Little Review was sold in Greenwich Village at the Washington Square Bookshop. Sumner had the bookshop's owner, Mrs. Josephine Bell Arens, arrested.
Quinn, the magazine's lawyer, got Sumner to drop the charges against Arens and charge Anderson and Heap instead.
Magistrate Joseph E. Corrigan held a preliminary hearing, in the old Jefferson Market Police Court, Oct. 21, 1920. The castle-like Victorian Age building still stands. Today it's a library. Quinn revealed what he called the "rather amusing scene" he was part of in court that day in another letter to Pound.
Jefferson Market Police Court. Photo Credit: Courtesy of Cervin Robinson / Library of Congress Prints and Photographs Division via Wikipedia.
Anderson and Keap, avant garde artists, packed the courtroom with supporters.
"The two rows of them looking as though a fashionable whorehouse had been pinched and all its inmates hauled into court, with Heep [sic] in the part of the brazen madame," Quinn wrote. "The stage was also filled with police officers in blue uniforms with glaring stars and buttons."
More people, not connected to the case, filled out the scene.
"Women and men by twos and threes awaiting arraignment or sentence, niggers in the offing, chauffeurs awaiting hearings," Quinn described, "pimps, prostitutes, hangers-on and reporters also whores, on the theory of 'Once a journalist, always a whore.'"
Quinn argued Joyce's stream-of-consciousness allegorical writing style which included the absence of punctuation created vague prose not explicit enough to be understood and thus lacking the capacity to corrupt anyone because it wasn't obscene because it was gibberish because it was too confusing and convoluted to turn any one on long enough to do anything about it especially since it was set half a world away in a foreign land called Dublin where people obviously drank too much and needed more wholesome hobbies.
Magistrate Corrigan saw through the smokescreen. 14 pages of the 16-page Nausicaa installment, read in open court, was enough to convince him probable cause existed to justify a full trial.
"The man went off in his pants," Corrigan explained, "which no one could misunderstand."
He set bail for Anderson and Heap: $25, each. "Women Publishers Held," was the headline in The New York Tribune, Oct. 22, 1920.
New York Tribune, Fri. Oct. 22, 1920.
Both Anderson and Heap made bail and directed blazing editorial artillery fire at the charges before trial in the next edition of The Little Review.
"The position of the great artist is impregnable," Anderson declared, fiery and defiant, in an essay she titled An Obvious Statement.
"You can no more limit his expression, patronizingly suggest that his genius present itself in channels personally pleasing to you, than you can eat the stars," she blared.
Heap titled her blast Art and the Law. Where Anderson was passionate, Heap wielded a cold, sarcastic rhetorical blade.
It was "ironical," she wrote, that they, women, were being prosecuted for corrupting "the cream-puff of sentimentality"—the minds of young girls. "So the mind of the young girl rules this country? In it rests the safety, progress and lustre of a nation. One might have guessed it."
When it came to the specific charges, Heap challenged the law directly because it targeted thoughts inside peoples' heads.
Laws are made to "preserve physical order" in the "physical world," Heap argued. "They "cannot reach, nor have power over, any other realm."
Besides, she famously emphasized, "Girls lean back everywhere." Sometimes girls even show "lace and silk stockings; wear low cut sleeveless gowns, breathless bathing suits; men think thoughts and have emotions about these things everywhere."
Yet, Heap archly observed, "no one is corrupted."
It would take decades, but the American legal system eventually caught up with Heap and agreed with her visionary legal theory that laws can't cover thoughts.
The allegedly obscene issue.
A three-judge panel of the New York Court of Special Sessions convened, without a jury, to decide whether Ulysses was obscene under New York law on Valentine's Day 1921. Forrester, the prosecutor, called one witness: Sumner.
A transcript of the trial does not exist. However, an affidavit Sumner swore out alleged the "magazine is so obscene, lewd, lascivious, filthy, indecent and disgusting, that a minute description of the same would be offensive to the Court and improper to be placed upon the record thereof."
Quinn called Philip Moeller, of the Theatre Guild, for the defense. Moeller forgot his audience. He compared the literary method Joyce uses in Ulysses to the psychoanalytic method employed by Sigmund Freud. That caused one of the judges to interrupt: "What's this? What's that? I don't understand what this man is talking about."
John Cowper Powys, a British novelist and critic, also testified in defense of Heap and Anderson. He said Ulysses was a "beautiful piece of work in no way capable of corrupting the minds of young girls."
Forrester tried to read one of the allegedly obscene passages in court. The judges stopped him. It's too disturbing. It shouldn't be "read in the presence of a young woman such as Anderson."
Quinn pointed out Anderson published it.
The judges adjourned for a week to read Nausicaa in full—in private. When they returned February 21, judges McInerney, Kernochan and Moss announced their verdict: guilty as charged, the New York Times reported. They sentenced Anderson and Keap to 10 days in prison or a fine of $50, each.
They were also ordered to not publish any more installments of Ulysses.
Judge McInerney called it "a very lenient" penalty.
"That chapter was a bit disgusting!," a young man shouted at them as they were led out of the courtroom.
"Is it a crime to be disgusting?!," Keap fired back.
Joanna Fortune, a supporter, paid their $100 fine. They never went to jail. They didn't appeal.
John S. Sumner burning books in NYPD headquarters in the 1930s.
Before they left the courthouse, officials required the convicted criminals be fingerprinted.
Allen C. Tanner was in the courtroom when his friends were found guilty. He recorded his extraordinary account of what came next in a typewritten note, now held in the archives of Dickinson College.
"I will not submit to this disgraceful procedure unless you first produce for my use a cake of the best soap, some pleasant cologne and two newly washed clean towels to clean off this legal filth," Anderson roared at the low-ranking clerks tasked with fingerprinting her.
"With that they all began to cringe and to take on the facial expressions of not only being ashamed of the practice they were to perform, but to look, in addition as if they were ashamed that they even existed," Tanner recalled.
"Hurriedly We [sic] heard them scurrying up and down the corridors asking breathlessly for all these supplied form [sic] any or all of the Female Secretaries still left in the Bldg," he added.
The clerks returned, with the requested items, Tanner wrote,
and meekly deposited them before her upon the table. Then with a grimace of outraged defiance that made them all take on the expressions of criminals, she put her hand out ... and they placed, digit by digit, the famous hands that had contributed to the corruption of Public Morality, by publishing the masterpiece of the Century.
When it was over, Tanner said, "we raced out of that 'Morally disturbed' room, giggling with joyful fulfillment of real revenge."
Joyce himself missed out on all the courtroom fun because he was in Europe trying to finish writing what he hoped some day might be a book. The way he might've seen it, these clowns in New York just managed to get his English-language master work banned in half the English-speaking world before it was even done.
Sylvia Beach came to Ulysses rescue. She was an expat American who ran a bookstore in Paris called Shakespeare and Company. She published Ulysses a little less than a year after it was judged obscene in a New York court, on Joyce's 40th birthday, Feb. 2, 1922.
Though the complete Ulysses contained more than 300 pages of new material, American censors were not as impressed by Joyce's revisions as literary critics. They refused to let the still-filthy smut cross the US border. Customs authorities in New York City seized and burned 500 copies in 1922. It created a black market that led to piracy.
A decade later, Random House head Bennet Cerf teamed up with civil rights litigator Morris L. Ernst to lift the ban and lawfully publish Ulysses in America. Section 305 of the Tariff Act of 1930 was their legal weapon of choice. The Federal law allowed the seizure of "any obscene book," but it also required a hearing follow any such seizure. Crucially, the law required that hearing be held in a federal court instead of a state court.
Cerf, Ernst and Joyce arranged to have a copy of Ulysses sent to America. Ernst literally delivered it back into the hands of customs officials after they first let it slip through. The US Attorney, Samuel Coleman, prosecuted the case even though he liked to read and called the book “a literary masterpiece.”
Federal Judge John Woolsey was assigned to decide whether Ulysses was obscene under Federal law.
When Anderson and Keap were convicted a decade before for publishing obscene material, in a New York State court, the legal deck was stacked against them. New York courts applied a legal test to determine whether something was obscene derived from British law. It was called the Hicklin test. It was called that because it was formulated by Chief Justice Cockburn of the King's Bench in a 1868 decision called Regina v. Hicklin.
The Hicklin test cast a net for obscenity that was very wide. It covered a lot. Hicklin made expression legally obscene if it had a "tendency" that worked "to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall."
In other words, if explicit material might "fall" into the hands of kids or the average working-class savage, that made it legally obscene.
New York's highest court approved the Hicklin test for obscenity in People v. Muller (1884). The Supreme Court endorsed it in Rosen v. United States (1896). This was the broad legal test the New York Court of Special Sessions applied, in 1921, when it convicted Anderson and Keap of obscenity for publishing Ulysses.
Federal Judge Woolsey, in 1933, refused to apply the broad Hicklin obscenity test. In his view, the Constitution protects adults and their rights. Idiots and children don't get to effectively decide what rights the average American enjoys. It "is only with the normal person that the law is concerned," his decision in United States v. One Book Called Ulysses (1933) held.
Under One Book Called Ulysses, the correct test asks what influence the allegedly obscene material has on the law's prototypical objectively "reasonable man"—not its impact on especially susceptible minds "open to such immoral influences."
Judge Woolsey's test also refused to view parts of an allegedly obscene work in isolation, as previous courts did when applying Hicklin. Instead, he held expression must be judged in its "entirety."
Applying these criteria, Ulysses wasn't legally obscene even if it was explicit in parts.
The words which are criticized as dirty are old Saxon words known to almost all men and, I venture, to many women, and are such words as would be naturally and habitually used, I believe, by the types of folk whose life, physical and mental, Joyce is seeking to describe. In respect of the recurrent emergence of the theme of sex in the minds of his characters, it must always be remembered that his locale was Celtic and his season spring.
The book's "net effect," Woolsey concluded, is a "tragic and very powerful commentary on the inner lives of men and women."
Federal judges Augustus Noble Hand, Billings Learned Hand and John M. Woolsey all held James Joyce's Ulysses was not legally obscene in 1933. In so doing, they laid the legal foundation for a modernization of American obscenity law that protects a wide range of free thought, speech and expression in America today.
The Government appealed to the US Court of Appeals for the Second Circuit. Judges Billings Learned Hand, his cousin Augustus Nobel Hand, and Martin T. Manton were assigned to decide it.
Learned Hand is a legal legend. He served as a federal judge for 52 years, 37 of them on the Second Circuit. He earned this reputation by not being a rubber stamp for Government, for taking each and every case extremely seriously and for crafting crystal clear legal opinions that transcend time. When he helmed the Second Circuit, for 12 years, he made it the finest federal appeals court in American history, legal scholars agree.
Assistant US Attorney General Martin Conboy argued the Federal Government's case against Ulysses. Facing Hand and his cousin, Conboy began by quoting a dramatic opinion published in a British newspaper and said Ulysses was
the most infamously obscene book in ancient or modern literature.... All the secret sewers of vice are canalized in its flood of unimaginable thoughts, images and pornographic words. And its unclean lunacies are larded with appalling and revolting blasphemies directed against the Christian religion and against the name of Christ—blasphemies hitherto associated with the most degraded orgies of Satanism and the Black Mass.
Learned Hand stopped Conboy with a question: "Do you believe the court should read it?"
"No," Conboy replied. "I'll read a generous sampling of this product of the gutter."
The federal lawman read allegedly obscene passages for hours, “blushing, stammering, rocking nervously on his heels,” according to a report in the New York World-Telegram.
The judges, meanwhile, sat there and "looked solemn."
When Ernst, Ulysses' lawyer, finally got his chance to speak he said "the real protagonist for this book is the human mind."
"The arena of action of Ulysses is not a Dublin brothel," he emphasized, "but the human skull."
The Court should reject Hicklin as a test for obscenity, Ernst argued. "The government was unfair in citing only excerpts from this book. It is necessary to consider it as a whole."
Augustus wrote the Court's blockbuster decision for him and Learned. Manton dissented. The Second Circuit agreed with Woolsey that allegedly obscene work shouldn't be judged by its potential impact on sub-average, susceptible people.
They also agreed allegedly obscene art shouldn't be judged by singling out spicy sections. It must be judged as a whole.
Applying these measures themselves, the judges found Ulysses was “sincere, truthful, relevant to the subject, and executed with real art.” It wasn't "pornographic, and, while in not a few spots it is coarse, blasphemous, and obscene, it does not, in our opinion, tend to promote lust." To the contrary, "one feels, more than anything else, pity and sorrow for the confusion, misery, and degradation of humanity."
If the “erotic passages” were considered legally sufficient to make the book truly obscene, the Court’s decision concluded,
by the same test Venus and Adonis, Hamlet, Romeo and Juliet, and the story told in the Eighth Book of the Odyssey by the bard Demodocus of how Ares and Aphrodite were entrapped in a net spread by the outraged Hephaestus amid the laughter of the immortal gods, as well as many other classics, would have to be suppressed.
Judge Manton's dissent correctly pointed out binding Supreme Court precedent mandated the Second Circuit (a lower federal appeals court) apply the Hicklin test. He also colorfully derided the idea "obscenity is only the superstition of the day—the modern counterpart of ancient witchcraft."
The Government did not appeal. Authors and publishers celebrated.
Judge Manton was convicted of corruption six years later for selling his vote in cases and sentenced to two years in prison.
The Supreme Court didn't modernize its obscenity law and officially bury the Hicklin test for obscenity until 1957.
That's when it decided United States v. Roth. Roth led to Miller v. California (1973). The Miller test is basically the same objective, whole-of-work obscenity test formulated by Judge Woolsey and upheld by the Second Circuit in 1933—plus an additional factor measuring whether the work lacks any "serious literary, artistic, political, or scientific value."
The strict Miller test for obscenity is the test Federal courts around the country are using to strike down new state restrictions on drag—and that legal test is law because of a 90-year-old federal court ruling protecting a fictional girl and her panties named United States v. One Book Called Ulysses.
Happy Fourth of July.
Duke Riley’s “Those About to Die Salute You”, exploding a replica of the British luxury ship Queen Elizabeth II, Queens, New York, 2009. Photo Credit: JB Nicholas.
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