Carving a Literary Exception: The Obscenity Standard and Ulysses
Pagnattaro, Marisa Anne, Twentieth Century Literature
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. …