Appeal from the District Court of the United States for the Southern District of New York.
Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
This appeal raises sharply the question of the proper interpretation of section 305 (a) of the Tariff Act of 1930 (19 USCA § 1305 (a). That section provides that "all persons are prohibited from importing into the United States from any foreign country * * * any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, * * *" and directs that, upon the appearance of any such book or matter at any customs office, the collector shall seize it and inform the district attorney, who shall institute proceedings for forfeiture. In accordance with the statute, the collector seized Ulysses, a book written by James Joyce, and the United States filed a libel for forfeiture. The claimant, Random House, Inc., the publisher of the American edition, intervened in the cause and filed its answer denying that the book was obscene and was subject to confiscation and praying that it be admitted into the United States. The case came on for trial before Woolsey, J., who found that the book, taken as a whole, "did not tend to excite sexual impulses or lustful thoughts but that its net effect * * * was only that of a somewhat tragic and very powerful commentary on the inner lives of men and women." He accordingly granted a decree adjudging that the book was "not of the character the entry of which is prohibited under the provision of section 305 of the Tariff Act of 1930 * * * and * * * dismissing the libel," from which this appeal has been taken.
James Joyce, the author of Ulysses, may be regarded as a pioneer among those writers who have adopted the "stream of consciousness" method of presenting fiction, which has attracted considerable attention in academic and literary circles. In this field Ulysses is rated as a book of considerable power by persons whose opinions are entitled to weight. Indeed it has become a sort of contemporary classic, dealing with a new subject-matter. It attempts to depict the thoughts and lay bare the souls of a number of people, some of them intellectuals and some social outcasts and nothing more, with a literalism that leaves nothing unsaid. Certain of its passages are of beauty and undoubted distinction, while others are of a vulgarity that is extreme and the book as a whole has a realism characteristic of the present age. It is supposed to portray the thoughts of the principal characters during a period of about eighteen hours.
We may discount the laudation of Ulysses by some of its admirers and reject the view that it will permanently stand among the great works of literature, but it is fair to say that it is a sincere portrayal with skillful artistry of the "streams of consciousness" of its characters. Though the depiction happily is not of the "stream of consciousness" of all men and perhaps of only those of a morbid type, it seems to be sincere, truthful, relevant to the subject, and executed with real art. Joyce, in the words of Paradise Lost, has dealt with "things unattempted yet in prose or rime" -- with things that very likely might better have remained "unattempted" -- but his book shows originality and is a work of symmetry and excellent craftsmanship of a sort. The question before us is whether such a book of artistic merit and scientific insight should be regarded as "obscene" within section 305 (a) of the Tariff Act.
That numerous long passages in Ulysses contain matter that is obscene under any fair definition of the word cannot be gainsaid; yet they are relevant to the purpose of depicting the thoughts of the characters and are introduced to give meaning to the whole, rather than to promote lust or portray filth for its own sake. The net effect even of portions most open to attack, such as the closing monologue of the wife of Leopold Bloom, is pitiful and tragic, rather than lustful. The book depicts the souls of men and women that are by turns bewildered and keenly apprehensive, sordid and aspiring, ugly and beautiful, hateful and loving. In the end one feels, more than anything else, pity and sorrow for the confusion, misery, and degradation of humanity. Page after page of the book is, or seems to be, incomprehensible. But many passages show the trained hand of an artist, who can at one moment adapt to perfection the style of an ancient chronicler, and at another become a veritable personification of Thomas Carlyle. In numerous places there are found originality, beauty, and distinction. The book as a whole is not pornographic, and, while in not a few spots it is coarse, blasphemous, and obscene, it does not, in our opinion, tend to promote lust. The erotic passages are submerged in the book as a whole and have little resultant effect. If these are to make the book subject to confiscation, 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. Indeed, it may be questioned whether the obscene passages in Romeo and Juliet were as necessary to the development of the play as those in the monologue of Mrs. Bloom are to the depiction of the latter's tortured soul.
It is unnecessary to add illustrations to show that, in the administration of statutes aimed at the suppression of immoral books, standard works of literature have not been barred merely because they contained some obscene passages, and that confiscation for such a reason would destroy much that is precious in order to benefit a few.
It is settled, at least so far as this court is concerned, that works of physiology, medicine, science, and sex instruction are not within the statute, though to some extent and among some persons they may tend to promote lustful thoughts. United States v. Dennett, 39 F.2d 564, 76 A.L.R. 1092. 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. The question in each case is whether a publication taken as a whole has a libidinous effect. The book before us has such portentous length, is written with such evident truthfulness in its depiction of certain types of humanity, and is so little erotic in its result, that it does not fall within the forbidden class.
In Halsey v. New York Society for Suppression of Vice, 234 N.Y. 1, 136 N.E. 219, 220, the New York Court of Appeals dealt with Mademoiselle de Maupin, by Theophile Gautier, for the sale of which the plaintiff had been prosecuted under a New York statute forbidding the sale of obscene books, upon the complaint of the defendant. After acquittal, the plaintiff sued for malicious prosecution, and a jury rendered a verdict in his favor. The Court of Appeals refused to disturb the judgment because the book had become a recognized French classic and its merits on the whole outweighed its objectionable qualities, though, as Judge Andrews said, it contained many paragraphs which, "taken by themselves," were "undoubtedly vulgar and indecent." In referring to the obscene passages, he remarked that: "No work may be judged from a selection of such paragraphs alone. Printed by themselves they might, as a matter of law, come within the prohibition of the statute. So might a similar selection from Aristophanes or Chaucer or Boccaccio, or even from the Bible. The book, however, must be considered broadly, as a whole." We think Judge Andrews was clearly right, and that the effect of the book as a whole is the test.
In the New York Supreme Court, Judge Morgan J. O'Brien declined to prohibit a receiver from selling Arabian Nights, Rabelais, Ovid's Art of Love, the Decameron of Boccaccio, the Heptameron of Queen Margaret of Navarre, or the Confessions of Rousseau. He remarked that a rule which would exclude them would bar "a very large proportion of the works of fiction of the most famous writers of the English language." In re Worthington Co. (Sup.) 30 N.Y.S. 361, 362, 24 L.R.A. 110. The main difference between many standard words and Ulysses is its far more abundant use of coarse and colloquial words and presentation of dirty scenes, rather than in any excess of prurient suggestion. We do not think that Ulysses, taken as a whole, tends to promote lust, and its criticized passages do this no more than scores of standard books that are constantly bought and sold. Indeed a book of physiology in the hands of adolescents may be more objectionable on this ground than almost anything else.
But it is argued that United States v. Bennett, Fed. Cas. No. 14,571, stands in the way of what has been said, and it certainly does. There a court, consisting of Blatchford, C.J., and Benedict and Choate, D.JJ., held that the offending paragraphs in a book could be taken from their context and the book judged by them alone, and that the test of obscenity was whether the tendency of these passages in themselves was "to deprave the minds of those open to such influences and into whose hands a publication of this character might come." The opinion was founded upon a dictum of Cockburn, C.J., in Regina v. Hicklin, L.R. 3 Q.B. 360, where half of a book written to attack alleged practices of the confession was obscene and contained, as Mellor, J., said, "a great deal * * * which there cannot be any necessity for in any legitimate argument on the confessional. * * *" It is said that in Rosen v. United States, 161 U.S. 29, 16 S. Ct. 434, 480, 40 L. Ed. 606, the Supreme Court cited and sanctioned Regina v. Hicklin, and United States v. Bennett. The subject-matter of Rosen v. United States was, however, a pictorial representation of "females, in different attitudes of indecency." The figures were partially covered "with lamp black, that could be easily erased with a piece of bread." Page 31 of 161 U.S., 16 S. Ct. 434. The pictures were evidently obscene, and plainly came within the statute prohibiting their transportation. The citation of Regina v. Hicklin and United States v. Bennett, was in support of a ruling that allegations in the indictment as to an obscene publication need only be made with sufficient particularity to inform the accused of the nature of the charge against him. No approval of other features of the two decisions was expressed, nor were such features referred to. Dunlop v. United States, 165 U.S. 486, 489, 17 S. Ct. 375, 41 L. Ed. 799, also seems to be relied on by the government, but the publication there was admittedly obscene and the decision in no way sanctioned the rulings in United States v. Bennett which we first mentioned. The rigorous doctrines laid down in that case are inconsistent with our own decision in United States v. Dennett (C.C.A) 39 F.2d 564, 76 A.L.R. 1092, as well as with Konda v. United States (C.C.A.) 166 F. 91, 92, 22 L.R.A. (N.S.) 304; Clark v. United States (C.C.A.) 211 F. 916, 922; Halsey v. N.Y. Society for Suppression of Vice, 234 N.Y. 1, 4, 136 N.E. 219; and St. Hubert Guild v. Quinn, 64 Misc. 336, 339, 118 N.Y.S. 582, and, in our opinion, do not represent the law. They would exclude much of the great works of literature and involve an impracticability that cannot be imputed to Congress and would in the case of many books containing obscene passages inevitable require the court that uttered them to restrict their applicability.
It is true that the motive of an author to promote good morals is not the test of whether a book is obscene, and it may also be true that the applicability of the statute does not depend on the persons to whom a publication is likely to be distributed. The importation of obscene books is prohibited generally, and no provision is made permitting such importation because of the character of those to whom they are sold. While any construction of the statute that will fit all cases is difficult, we believe that the proper test of whether a given book is obscene is its dominant effect. In applying this test, relevancy of the objectionable parts to the theme, the established reputation of the work is the estimation of approved critics, if the book is modern, and the verdict of the past, if it is ancient, are persuasive pieces of evidence; for works of art are not likely to sustain a high position with no better warrant for their existence than their obscene content.
It may be that Ulysses will not last as a substantial contribution to literature, and it is certainly easy to believe that, in spite of the opinion of Joyce's laudators, the immortals will still reign, but the same thing may be said of current works of art and music and of many other serious efforts of the mind. Art certainly cannot advance under compulsion to traditional forms, and nothing in such a field is more stifling to progress than limitation of the right to experiment with a new technique. The foolish judgments of Lord Eldon about one hundred years ago, proscribing the works of Byron and Southey, and the finding by the jury under a charge by Lord Denman that the publication of Shelley's "Queen Mab" was an indictable offense are a warning to all who have to determine the limits of the field within which authors may exercise ...