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"ULYSSES," ONE BOOK ENTITLED, UNITED STATES v. 5F. Supp. 182 (1933) 72 F.2d 705 (1934)

Although it was not a decision of the Supreme Court, Ulysses was not merely a case involving a famous book and prominent judges but also a harbinger of modern decisions on OBSCENITY. Its standards for construing the COMMON LAW terms embodied in federal customs regulations were transmuted in UNITED STATES V. ROTH (1957) into constitutional principles for testing both federal and state legislation on the subject.

The handful of early obscenity cases that reached the Supreme Court mainly presented claims of technical error in the trials below. Ulysses presented clear questions of substantive standards for adjudging obscenity and lewdness. The established reputation of the book insured careful attention; Judge John M. Woolsey's lower court opinion was unmistakably written for the anthologies it ultimately graced. Judge AUGUSTUS N. HAND'S appellate majority opinion was straightforward, but Judge Martin T. Manton's dissent was somewhat verbose.

Woolsey declared that the book successfully showed "how the screen [sic] of consciousness with its ever-shifting kaleidoscopic impression carries, as it were on a plastic palimpsest, … a penumbral zone residual of past impressions … not unlike the result of a double or, if that is possible, a multiple exposure on a cinema film.…"

The relevant statute on importation of books prohibited not pandering but obscenity. Woolsey announced without discussion that the test for obscenity required examination of the whole work. The standard was the effect on "what the French would call l'homme moyen sensuel—who plays, in this branch of legal inquiry … the same role… as does the "reasonable man in the law of torts.…"With this standard he found the book "somewhat emetic, nowhere … an aphrodisiac." He also found Joyce to have been sincere and lacking pornographic intent or the "leer of the sensualist."

At the appellate level Augustus Hand for himself and LEARNED HAND managed to come to grips with the central legal issue—whether isolated passages could render a work of art obscene. This was the test derived from Regina v. Hicklin (1868), the classic British case, and, they conceded, followed in United States v. Bennett (1879), a CIRCUIT COURT decision by Justice SAMUEL BLATCHFORD. They discounted other alleged precedents and argued that the isolated passages concept was not followed for works of science or medicine and should not be followed for literature either. They cited state decisions embracing the "dominant effect" notion, and read that test (together with their definition of the relevant audience) into the statute, concluding that other readings would be impractical and overrestrictive.

Manton, dissenting, insisted that federal decisions in the past had accepted the "isolated passages" test. As literature was for amusement only, the community could reasonably demand that it meet moral standards—those of average, not exceptional, individuals.