Book lovers everywhere should offer thanks tomorrow to the Honorable John M. Woolsey of the United States District Court for the Southern District of New York. Judge Woolsey ruled on December 6, 1933 that James Joyce’s Ulysses, the subject of a countrywide de facto ban for ten years, was not obscene.

The novel was serialized in the United States beginning in 1922 but, as the story goes, some woman, somewhere, read what we suppose was the Nausicaa scene and complained to a state’s attorney in New York. This attorney, like any good small-minded politician, prosecuted the publishers of the small Chicago-based literary magazine in which the episode had appeared. The court considered only the installment which had appeared in that particular month, with that particular scene (and if you are unfamiliar with the novel, think Judge Reinhold and Phoebe Cates and you’ll be right on board), and called it the work of a “disordered mind.” The publishers were convicted and fined, and the threat of prosecution dissuaded others who might otherwise have released the completed novel.

United States v. One Book Called Ulysses was a classic First Amendment test case.  Bennett Cerf, co-founder of Random House and eventual game show gadfly, wanted to publish the novel but was afraid to make the capital expenditures necessary to print the book without knowing whether it could be legally sold.  He devised a plan to “noisily” import the French edition of the book so it could be seized at the Port of New York.  It almost didn’t work. The customs inspector initially refused to seize the books because, he claimed, “everyone” brought them in. But the inspector relented, and the case made its way to the federal court in Manhattan.

Woolsey was the son of a carpetbagger, one William W. Woolsey, who purchased a plantation in South Carolina in 1870. Judge’s Woolsey’s maternal grandfather was an Ohio Supreme Court judge, and his uncle was Daniel Coit Gilman of Johns Hopkins University. When William Woolsey became a Confederate sympathizer,  Judge Woolsey’s mother left him and moved with her son to Englewood, New Jersey (home of Woolsey’s contemporary, Upton Sinclair).   Woolsey attended Phillips Academy, Yale, and Columbia Law School, where he co-founded the Law Review.   After entering private practice, he was a regular at Delmonico’s where, in 1906, Harry Thaw shot Stanford White.

In 1929, Woolsey was appointed to the District Court for the Southern District of New York by President Herbert Hoover. By all accounts he was an exceptional and hard-working jurist.   (According to lore, he took the Ulysses case because he had just ended a 100 day fraud trial and wanted to read the book while he “rested”).   His opinion in the Ulysses case,which appears at 5 F. Supp. 182 (S.D.N.Y. 1933), was affirmed in an opinion authored by the Honorable Augustus Hand.   Sadly, although Learned Hand was a member of the Second Circuit at the time, he remains outside the reach of my little Six Degrees of Separation game here.

Cerf ensured Judge Woolsey’s celebrity by including a copy of the opinion in every copy of Ulysses sold in the United States. Fitting, since Woolsey’s opinion is as much literary critique as legal analysis:

Ulysses is not an easy book to read or to understand. But there has been much written about it, and in order properly to approach the consideration of it it is advisable to read a number of other books which have now become its satellites. The study of Ulysses is, therefore, a heavy task.
The reputation of Ulysses in the literary world, however, warranted my taking such time as was necessary to enable me to satisfy myself as to the intent with which the book was written, for, of course, in any case where a book is claimed to be obscene it must first be determined, whether the intent with which it was written was what is called, according to the usual phrase, pornographic, that is, written for the purpose of exploiting obscenity.
If the conclusion is that the book is pornographic, that is the end of the inquiry and forfeiture must follow.
But 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.
In writing Ulysses, Joyce sought to make a serious experiment in a new, if not wholly novel, literary genre. He takes persons of the lower middle class living in Dublin in 1904 and seeks, not only to describe what they did on a certain day early in June of that year as they went about the city bent on their usual occupation, but also to tell what many of them thought about the while.
Joyce has attempted— it seems to me, with astonishing success— to show how the screen of consciousness with its ever-shifting kaleidoscopic impressions carries, as it were on a plastic palimpsest, not only what is in the focus of each man’s observation of the actual things about him, but also in a penumbral zone residua of past impressions, some recent and some drawn up by association from the domain of the subconscious. He shows how each of these impressions affect the life and behavior of the character which he is describing.
What he seeks to get is not unlike the result of a double or, if that is possible, a multiple exposure on a cinema film, which would give a clear foreground with a background visible but somewhat blurred and out of focus in varying degrees.
To convey by words an effect which obviously lends itself more appropriately to a graphic technique, accounts, it seems to me, for much of the obscurity which meets a reader of Ulysses. And it also explains another aspect of the book, which I have further to consider, namely, Joyce’s sincerity and his honest effort to show exactly how the minds of his characters operate.
If Joyce did not attempt to be honest in developing the technique which he has adopted in Ulysses, the result would be psychologically misleading and thus unfaithful to his chosen technique. Such an attitude would be artistically inexcusable.
It is because Joyce has been loyal to his technique and has not funked its necessary implications, but has honestly attempted to tell fully what his characters think about, that he has been the subject of so many attacks and that his purpose has been so often misunderstood and misrepresented. For his attempt sincerely and honestly to realize his objective has required him incidentally to use certain words which are generally considered dirty words and has led at times to what many think is a too poignant preoccupation with sex in the thoughts of his characters.
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.
United States v. One Book Called  Ulysses, 5 F. Supp. 182, 183-84  (S.D.N.Y. 1933).
If no one has yet used that line – “his locale was Celtic and his season spring” – as the title of a chapter of a First Amendment text, or a law review article, or something: somebody please do.

I read a post yesterday at Overlawyered.com on Walter Olson’s new book, “Schools for Misrule,” on why lawyers are not fit to run the country.  One charming fellow made the inevitable Shakespeare reference (the “kill all the lawyers” one from Henry VI, a play most ultra-conservatives I know haven’t read, because if they had they’d know the line’s spoken by an ANARCHIST).  Ahem.   Anyway, the whole thing pisses me off, not least because Olson’s made a fortune on torts, which is exactly what he criticizes lawyers for, but also because I think brain trust “fellows” should avoid redesigning a system with which they have precious little personal experience.  But if Olson’s your cup of tea and you went to the right prep school, the “Cato Club” has a “retreat” coming up in September.  Knock yourself out.  

Personally I believe that organizations like the Cato Institute thrive on vanity.  You crank enough stuff out and people buy your books and come to your speeches.  You make money.  Eventually you need to make more money, but you’ve already said X.  No one will pay you to say X again.  So you say something more outrageous.  And so it goes.  Olson made his name with a 1992 book called “The Litigation Explosion.”  That one was mostly about greedy plaintiffs’ lawyers and included a healthy dose of Clinton-hatred.  Fine.  In 2004, with “The Rule of Lawyers,” he took on class action litigation.  By 2007 and “The Excuse Factory,” Olson was arguing against the evils of civil rights legislation and supporting himself with anecdotes meant to inflame, rather than inform.  Now he’s made his way, really, to lawyers in general.  We’re all bad, and the country would be a much better place without us.  (Alexander Hamilton did okay, I thought.  Perhaps Olson should cancel his speaking engagements for the Federalist Society?)  The circle of blame keeps getting bigger and bigger, though never apparently encompassing the likes of Ted Olson or Alberto Gonzales.  And without all these lawyers, Olson must believe, it will be that much easier to close the doors to people who didn’t go to the right prep school, and don’t socialize with the Bushes – or the Koch brothers –  and do what the ultra conservatives really want.  Make lots and lots and lots of money.  Be elite.   

Take it away, poor Irish Catholic boy:

 
I could not find any sixpenny entrance and, fearing that the bazaar would be closed, I passed in quickly through a turnstile, handing a shilling to a weary-looking man. I found myself in a big hall girded at half its height by a gallery. Nearly all the stalls were closed and the greater part of the hall was in darkness. I recognized a silence like that which pervades a church after a service. I walked into the centre of the bazaar timidly. A few people were gathered about the stalls which were still open. Before a curtain, over which the words Café Chantant were written in coloured lamps, two men were counting money on a salver. I listened to the fall of the coins.Remembering with difficulty why I had come, I went over to one of the stalls and examined porcelain vases and flowered tea-sets. At the door of the stall a young lady was talking and laughing with two young gentlemen. I remarked their English accents and listened vaguely to their conversation.

`O, I never said such a thing!’`O, but you did!’

`O, but I didn’t!’

`Didn’t she say that?’

`Yes. I heard her.’

`O, there’s a… fib!’

Observing me, the young lady came over and asked me did I wish to buy anything. The tone of her voice was not encouraging; she seemed to have spoken to me out of a sense of duty. I looked humbly at the great jars that stood like eastern guards at either side of the dark entrance to the stall and murmured:

`No, thank you.’

The young lady changed the position of one of the vases and went back to the two young men. They began to talk of the same subject. Once or twice the young lady glanced at me over her shoulder.

I lingered before her stall, though I knew my stay was useless, to make my interest in her wares seem the more real. Then I turned away slowly and walked down the middle of the bazaar. I allowed the two pennies to fall against the sixpence in my pocket. I heard a voice call from one end of the gallery that the light was out. The upper part of the hall was now completely dark.

Gazing up into the darkness I saw myself as a creature driven and derided by vanity; and my eyes burned with anguish and anger.

James Joyce, Araby, from Dubliners (Penguin 1996)