Appeal
The U. S. Attorney appealed Judge Woolsey's decision to the United States Court of Appeals for the Second Circuit. The three-judge panel affirmed Woolsey's ruling by a two-to-one vote in United States v. One Book Entitled Ulysses by James Joyce. The panel majority consisted of Judges Learned Hand and Augustus N. Hand, with Chief Judge Martin Manton dissenting.
Judges Learned Hand and Augustus Hand, believing that the case was receiving undue publicity and attention, "agreed that the opinion affirming Woolsey's ruling should, if at all possible, contain 'not a single quotable line.'" The decision was therefore drafted by Augustus Hand rather than his cousin Learned Hand, whose writing was far more memorable.
Augustus Hand nevertheless rose to the occasion and transcended the prosaic in his opinion. He acknowledged the critical acclaim given to the book, and found Joyce’s depiction of his characters “sincere, truthful, relevant to the subject, and executed with real art”. That depiction however contained passages “obscene under any fair definition”, and the court therefore had to decide whether the work should be banned. The court discussed a number of other works, from classic works of literature to “physiology, medicine, science, and sex instruction” which contain sections which would be characterized as “obscene”, yet nevertheless are not banned as they do not promote lust. The majority opinion forthrightly confronted and disagreed with precedents which allowed courts to decide the question of obscenity on the basis of isolated passages, even if taken out of context. Such a standard would “exclude much of the great works of literature” and be impracticable, and the court therefore held that the “proper test of whether a given book is obscene is its dominant effect”.
Judge Hand concluded the majority opinion with a historical perspective of the harms of overzealous censorship:
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 themselves. We think that Ulysses is a book of originality and sincerity of treatment and that it has not the effect of promoting lust. Accordingly it does not fall within the statute, even though it justly may offend many.
In his dissent, Judge Manton opined that certain passages undoubtedy were obscene, so much so they could not even be quoted in the opinion; that the test of obscenity was whether the material tended "to deprave and corrupt the morals of those whose minds are open to such influences"; and that the reason for using such terms was irrelevant. He nevertheless went on to distinguish Ulysses from medical and scientific texts which are "of obvious benefit to to the community", as the novel was but a work of fiction, "written for the alleged amusement of the reader only". The effect on the community, including children, was to be the sole determining factor in applying the statute. The dissent rejected a position that would allow material even though it was objectionable only to a susceptible minority, as:
to do so would show an utter disregard for the standards of decency of the community as a whole and an utter disregard for the effect of the a book upon the average less sophisticated members of society, not to mention the adolescent.
In conclusion, Judge Manton stated that masterpieces are not the product of "men given to obscenty or lustful thoughts— men who have no Master". He instead appealed to higher purposes for good literature; to serve the need of the people for "a moral standard", to be "noble and lasting", and to "cheer, console, purify, or enoble the life of people".
Read more about this topic: United States V. One Book Called Ulysses
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