Usually when we think of free speech heroes, our minds turn to great Supreme Court justices like Brandeis or Brennan. But trial lawyers have played just as important a role in the history of civil liberties. They set the intellectual stage on which the judges act, and sometimes the script from which they speak.
New York trial lawyer’s Morris Ernst’s role in freeing James Joyce’s Ulysses from the grasp of censorship is a good example. Kevin Birmingham tells the story eloquently in his book The Most Dangerous Book, but let me set out the highlights here.
The sale of James Joyce’s Ulysses was banned in the United States in 1922. The only way readers could obtain it was to buy a boot-legged copy smuggled in from France. Ernst found this situation intolerable, and decided to do something about it.
Here is where lawyerly creativity, savvy, and cunning enter the story. First, Ernst conceived a novel legal theory upon which to hang his argument. Judges had categorized Ulysses as a “dirty” book. an example of pornography unworthy of judicial protection. Ernst recognized the book was extremely vivid in its descriptions of sexual acts, but believed that these descriptions were integral to the book’s brilliant portrait of how ordinary people like Leopold and Molly Bloom experience their lives. It was not the book’s sexual details but its literary value that should determine whether or not it received protection from the censors. The issue in Ernst’s lawsuit would be whether a “modern classic” could be banned as obscene because of details integral its larger literary goals. Could censors ban the greatest book of the Twentieth Century?
Ernst not only chose the appropriate legal theory; he also decided which law to violate in order to raise the issue. The primary censorship law in New York made it a crime to sell any book that fit any one of a whole laundry list of adjectives like “obscene”, “lewd”, “lascivious”, or “filthy”. Ernst thought it would be preferable to violate a more narrow statute that criminalized only “obscenity.” He decided the federal law banning the importation of obscene books was the right law.
So, with the cooperation of publisher Bennett Cerf of Random House, he schemed to have a copy of Ulysses seized by U. S. customs as it entered the country from France. But the Ulysses to be seized was no ordinary copy of the book. Ernst directed the shippers of the book to make sure to paste into its inner cover as many reviews as possible declaring the book a modern classic. The seized book itself would include the evidence of literary value upon which Ernst wanted to base his case.
But sometimes bureaucracy foils the best-laid legal plan– the customs officials failed to seize the book upon entry. Ernst had to bring the book back to them and argue that they should do their job and seize the book. Finally they took the book. But Ernst was finished yet. He arranged to have the federal law upon which the seizure was based quietly amended to exclude “classics” from its coverage. And, he engaged in delaying tactics to make sure the most sympathetic judge possible heard the case.
That judge eventually ruled that the book should be admitted to the United States, and the reasons he stated for his decision sound very much like those that Ernst had originally envisaged. The judge conceded that there that there was much “dirty” language in Ulysses, but he pointed out that it was not a case of “dirt for dirt’s sake”. The sexual references were all part of the “mosaic” of human life that the “great artist” Joyce was constructing. A federal court of appeals upheld the decision and the case was not appealed to the Supreme Court. Ulysses was now available to all adults who chose to read it. The dam of censorship had started to crack.
Morris Ernst won his victory in 1933; it wasn’t till 1957 that that the U.S. Supreme Court ruled that the First Amendment prohibited censors from ruling that a book of “redeeming social importance” was obscene. A theory that started as an idea in the fertile mind of Morris Ernst had become a basic tenet of American constitutional law.