On this day in 1934, Augustus Hand scored a second, binding victory for psychological realism.  Obscenity charges had bedeviled James Joyce’s Ulysses before he even finished it.  In 1920 the New York Society for the Suppression of Vice convinced the Post Office to seize four installments of the novel published in The Little Review: “Lestrygonians,” “Scylla and Charybdis,” “Cyclops,” and “Nausicaa.”  No one had any clue what to make of the first three chapters, but the fourth was certainly somehow pornographic.

The book-in-process was deemed obscene and banned.  It would remain so until 1933, when Random House challenged the — wait for it, wait for it Hawley-Smoot (sometimes known as Smoot-Hawley) Tariff Act’s prohibition on immoral articles.  In United States v. One Book “Called Ulysses,” John Woolsey was only asked to determine whether the novel was obscene.  His opinion, however, was a tactful, informed defense of psychological realism:

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 occupations, 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 affects 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.

Woolsey then went one step further: he sought out two people with “average sexual instincts [to play] in this branch of legal inquiry, the same role of the hypothetical reagent as does the ‘reasonable man’ in the law of torts and ‘the man learned in the art’ on questions of invention in patent law.” To wit:

After I had made my decision in regard to the aspect of “Ulysses,” now under consideration, I checked my impressions with two friends of mine who in my opinion answered to the above-stated requirement for my reagent.

These literary assessors — as I might properly describe them — were called on separately, and neither knew that I was consulting the other. They are men whose opinion on literature and on life I value most highly. They had both read “Ulysses,” and, of course, were wholly unconnected with this cause.

Without letting either of my assessors know what my decision was, I gave to each of them the legal definition of obscene and asked each whether in his opinion “Ulysses” was obscene within that definition.

I was interested to find that they both agreed with my opinion: That reading “Ulysses” in its entirety, as a book must be read on such a test as this, did not tend to excite sexual impulses or lustful thoughts, but that its net effect on them was only that of a somewhat tragic and very powerful commentary on the inner lives of men and women.

The US Attorney’s office challenged Woolsey’s learned decision, so the case — now properly named United States v. One Book Entitled “Ulysses” by James Joyce — went before the Second Circuit Court of Appeals, where the aforementioned Augustus Hand, his illustrious cousin Learned, and the infamous Martin Manton heard the case.  Manton’s dissent was predictable:

Who can doubt the obsenity of this book after a reading of the pages referred to, which are too indecent to add as a footnote to this opinion? Its characterization as obscene should be quite unanimous by all who read it.

Seems his literary assessor — himself and an invisible electorate of the easily offended — differed from Woolsey’s.  For Manton, the “I know it when I see it” standard obtained, so he called it like he saw it.  Augustus Hand saw it much as Woolsey and his assessors had:

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.

Hand’s opinion outstripped Woolsey’s in one important respect: it accorded Joyce’s novel “scientific insight.”  It is a textbook of sorts — a sincere document of bestial humanity at its most sordid — but it has value as such.  Literature, for Hand, has anthropological and ethnographical import, and should be assessed not by its performance of established value, but by the truthfulness of its depiction of lived experience:

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. 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 introducted to promote lust and does not furnish the dominant note of the publication. The questions in each case it 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.

Its “portentious length” and “evident truthfulness” denude Ulysses of erotic effect.  It’s a rousing defense, but it’s not altogether honest, at least not from our modern perspective.  We wouldn’t defend the erotic in literature by declaring an author’s intent and an audience’s response to be clinical

Ulysses is erotic — we know it when we read it — as are many of the classics Woolsey and Hand cite.  And we read it, when we read it, because we know it to be so.  We like a little erotic in our literature.  What Hand describes resembles the cold steel and paled flesh of Dead Ringers, a film whose commitment to the body shares as little with Ulysses as two works in which sex happens possibly can.