Legal Perspectives: What the Adult Industry Owes to James Joyce
The adult industry has a very good sense of history. For example, none would challenge the statement that this industry took a leading role in protecting First Amendment rights for all Americans. In the adult industry, we have our heroes and martyrs. Larry Flynt, for example, never shied away from a fight, and gave his money, portions of his freedom and the use of his legs so that the rest of us could enjoy the liberties we have today.
As we stand on Flynt’s shoulders today, he too stood on the shoulders of giants. Today’s column asks you to look back even further, to James Joyce — and to recognize that the adult industry owes him a debt of gratitude. Indeed, there is a reason that I give copies of Ulysses to my dearest friends in the industry.
The fight to bring “Ulysses” to the American market is the beginning of a notion that the First Amendment protects erotica. Back in the early 1900s, the intellectual predecessors of John Ashcroft and Alberto Gonzalez zealously worked to impose their version of morality on the marketplace of ideas. Anthony Comstock pushed for laws that banned mailing or importing erotic materials, and he met very little resistance. Cries for censorship were not rare in “the land of the free,” despite the inspiring language presented by the First Amendment.
Early Freedom of Expression
Justice Holmes was the first to bless an ever-expanding view of freedom of expression in his 1919 dissent to Abrams v. U.S., where he wrote: “I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”
Meanwhile, at about the time that the free expression sun was rising in America, so was a vicious bora of censorship. This desire for to clamp down on artistic expression grew from the mentality of Victorian times, sexual repression, and a bizarre interpretation of “morality,” which its adherents pressed in every corner with evangelical fervor.
‘Ulysses’ by James Joyce
“Ulysses” evokes a “somewhat tragic and very powerful commentary on the inner lives of men and women.” “Ulysses” is “obscene” by one inaccurate meaning of the word, “that it deals frankly with behavior, habits and actions which in life are generally private.” But, “Ulysses” simply showed a typical day of a Dubliner. It brought reality to the page, in all its brutal glory. In fact, it was said in the last “banned in Boston” trial, if such literature is obscene then “life is obscene.”
In the late 1800s and early 1900s, books like Joyce’s “Ulysses” were regularly banned. The book was banned in the U.S., England, Ireland, Canada, and Australia. Nevertheless, “Ulysses” staged a coup that would result in critical changes to obscenity laws in many countries, meanwhile its status as contraband contributed to the book’s popularity.
Major developments in U.S. obscenity law came into play just in time to stifle “Ulysses.” In 1873, Comstock began his Post Office vendetta against the consumers of “obscene” literature. “Ulysses” was officially banned from the U.S. on Feb. 21, 1921. Thus began the debate over what “obscenity” and “literary value” meant.
The Hicklin Obscenity Standard
When “Ulysses” was being burned on the docks in New York, American obscenity law was imported from the U.K. in the form of the 1868 U.K. case Regina v. Hicklin. The Hicklin test focused on the effect the allegedly obscene article had on the most corruptible readers and not on the book’s actual contents. A judge merely had to imagine a hypothetical scenario where someone (unlike himself, of course) could be corrupted by the work. Accordingly, “obscene” meant anything “tending to stir the sex impulses or lead to sexually impure and lustful thoughts.” In other words, if it even had the tendency to bring about a boner or a sploosh, it was “obscene.”
U.S. v. One Book Called ‘Ulysses’
Fortunately, forerunners of our present First Amendment Lawyers’ Association saw the constitutional problem with banning literature because it might corrupt our morals. They took on the U.S. Government and won.
In the Ulysses case, the Judge Woolsey pointed out that Joyce’s writing depicts the day of lower middle class citizens of Dublin, detailing what they do, say, think, and imagine. Woolsey held that because the book looked at everyday lives, there could not truly be anything bannable because people commonly experience the events Ulysses detailed. Woolsey felt that simply “turning away” is an appropriate option. In other words, if you don’t like it, then don’t read it!
Most importantly, Woolsey added that the book in question must be read and assessed for obscenity in its entirety.
Upon appeal, in Ulysses II, the Second Circuit not only upheld Woolsey’s decision, but also laid the foundation for the now-prevailing Miller standard and began to reject Hicklin. “We think the same immunity should apply to literature as to science, where the presentation, when viewed objectively, is sincere, and the erotic matter is not introduced to promote lust and does not furnish the dominant note of the publication.”
Roth v. U.S.
Even after Ulysses, Hicklin remained partially intact. But the reasoning from Ulysses I & II entered the jurisprudential DNA and started to make subtle changes. Following Ulysses, Roth v. U.S. took the lead as a key obscenity case. That case involved two persons convicted for selling obscene books. The court again held that the First Amendment did not protect obscene speech on the rationale that the Constitution was intended to “assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”
Though the Roth court followed Hicklin, it criticized the Hicklin test for its potential to stifle protected speech about sex. Roth modified the obscenity test to ask “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”
Stanley v. Georgia and Restricting Private Possession
In the 1969 case of Stanley v. Georgia, the Supreme Court held that the First Amendment protected the private possession of obscene materials. Indeed, if this were the law during the time of the Ulysses trial, readers may have been saved. Perhaps a major purpose of one deciding to read an “obscene” book is the secrecy and taboo-ness of the matter — or simply because it challenges societal norms.
The court found a fundamental right almost separate from the right of free speech in the “right to receive information and ideas, regardless of their social worth.”
Miller v. California: Obscenity Test Today
The controlling legal standard for determining obscenity in the U.S. today, the Miller test, finally solidified the literary exception proposed in Ulysses II. The case of Miller v. California dealt with unsolicited mailings containing explicit nude drawings. Specifically, the court noted that the States have a significant interest in regulating such unsolicited mailings where “the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles.” The court proposed a new test for obscenity, which determines obscenity based on 1) whether the average person applying contemporary community standards would find that the work as a whole appeals to the prurient interest; 2) whether the work depicts or describes, in a patently offensive way, sexual conduct defined by applicable state law; and 3) whether the work lacks serious literary, artistic, political, or scientific value.
The test memorializes the importance of literary works acknowledged in Ulysses II, where the court valiantly, unapologetically, and for the first time equated the importance of the literary mind with the importance of scientific discovery and explanation.
Ulysses And Today’s Standard
Decades after the case, Ulysses finally succeeded in bringing about a sunrise in the struggle for to protect erotica in America. As dissenters opined many times, without making Holmes-level traction, “what causes one person to boil up in rage over one pamphlet or movie may reflect only his neurosis, not shared by others.”
Ulysses is a perfect example of the schizophrenic and erotophobic nature of American attitudes toward obscenity. Back in the 1930s when Ulysses I & II were decided, many citizens and judges would think that “civilized” people do not allow unregulated access to Joyce’s “filthy” literature. Yet today, most readers would be hard-pressed to find shock in their hearts at a description of urination or the clever insult “mean bloody scut.”
Pay Your Respects To Joyce
In the zeal to ban “Ulysses,” we found the confrontation we needed in order to lay the cornerstone for the edifice that would become modern free speech jurisprudence.
In more modern times, we find ourselves confronted with a horde of anti-intellectualism. Further, we have found continued artistic persecution against humorists, pornographers, and musicians alike. George Carlin, Lenny Bruce, Al Goldstein, Larry Flynt, and 2 Live Crew all stood on the ramparts that Ulysses itself originally built.
Those ramparts are built from the working-class language and brutal honesty that sprang from Joyce’s mind. Today’s adult film performers, directors, distributors, and producers have inherited Joyce’s position. It might seem arrogant for a “pornographer” to claim that they are today’s James Joyce. But, I say that arrogance is deserved. The arrogance that may exist in the statement that today’s pornography may be “the future’s fine art” pales in comparison to the arrogance of one who would seek to extinguish an idea by force of law.
Like Joyce did in the 1930s, today’s pornographers challenge norms and place a mirror in front of society. If it did not sell, it would not be produced and sold. If society does not like what it sees in the mirror, it is not the artist who is to blame.
As you turn these pages, and you see the stories about the adult film business, have great pride that you are in this business. Your efforts are no less noble than those of James Joyce.
And, although it is not a legal text, Ulysses is as important to our concepts of liberty as anything penned by any jurist. As the Supreme Court said in Cohen v. California, “one man’s vulgarity is another man’s lyric.” If it were not for Joyce’s lyric, you might very well be reading an underground publication right now. You might not have the freedom to do whatever it is you do that brings this publication into your hands. You would certainly be less free.
“Ulysses” is not just a gift to literature, “Ulysses” is a gift to freedom — and as such, lyric it was, and lyric it is.
This article is an abstract of Marc J. Randazza’s forthcoming law review article, “James Joyce’s ‘Ulysses,’ an Unsung Hero in the Fight for Freedom of Expression.” Randazza originally presented his study of Joyce and freedom of expression at the annual James Joyce school in Trieste, Italy, in the summer of 2015. The full work will be published in the University of Massachusetts Law Review in early 2016. Randazza is an attorney who works on free expression cases worldwide and is currently based in Las Vegas.