The Most Dangerous Book: The Battle for James Joyce’s Ulysses (44 page)

The following year, Ernst won two more federal obscenity cases on behalf of two works by Dr. Marie Stopes: a marital aid called
Married Love
and a physicians’ pamphlet called
Contraception
. He was on a roll. The only problem was that he was not winning constitutional freedoms. Every time Ernst claimed that the First Amendment protected an individual’s right to circulate sexually related material, the judges flatly rejected his argument. Not only did books about pregnancy and reproductive systems have nothing to do with the First Amendment, but Ernst’s constitutional argument implicitly undermined federal and state Comstock Acts, which were sacrosanct after decades on the books.

So Ernst had to open up the marketplace of ideas another way. Instead of expanding the First Amendment, he eroded censorship by whittling down the legal meaning of the word
obscene.
And yet these early victories weren’t enough. While they were important, they affirmed what the country had already come to believe: that sex education wasn’t obscene. Ernst was chipping away at the nation’s censorship regime, but what he was really looking for was a way to take a sledgehammer to it.

In August 1931, just weeks after his victory in the
Contraception
case, Ernst found his opportunity. Alexander Lindey, an associate at Ernst’s law firm, approached Sylvia Beach’s sister Holly when he heard that James Joyce was looking for an American publisher for
Ulysses
. Ernst and Lindey had excellent timing. Joyce was desperate for money, and Sylvia Beach heard rumors that Samuel Roth was about to sell another edition of Joyce’s
novel. This time, she heard, the printing would be twenty thousand copies. Unauthorized books would flood the market, and the prospect of income stolen by a pirate was infuriating.

Nevertheless, while
Ulysses
was still illegal a full decade after the
Little Review
trial, several U.S. publishers were willing to defend the book in court, and Morris Ernst’s firm was eager to be involved. Lindey could barely contain himself in a note he wrote to Ernst, “This would be the grandest obscenity case in the history of law and literature, and I am ready to do anything in the world to get it started.”

—

BUT STARTING THE CASE wasn’t easy. Ernst wouldn’t take it pro bono, and the prospective publishers willing to pay his fees found themselves hampered by, of all people, Sylvia Beach. In 1930, Joyce gave Beach world rights for
Ulysses
in order to free himself from the legal fees associated with fighting Samuel Roth’s piracy. As publishers began to pursue
Ulysses
, however, they blithely ignored her contract. Their offers kept referring to Sylvia Beach as Joyce’s “representative” rather than the publisher and owner of
Ulysses
, and no one offered her any payment for the rights.

Beach became indignant, and after asking Hemingway for his advice, her response bears his brash imprint. She wanted Joyce to receive 20 percent of the book’s retail price and a five-thousand-dollar advance. And for the right to publish
Ulysses
, she demanded twenty-five thousand dollars. It was, she said, “a modest estimate of the value that
Ulysses
represents to me.” It was also absurd. A publisher couldn’t afford to pay half that amount for a foreign title, let alone for a decade-old book that was a legal nightmare. The Curtis Brown Company, one of the most serious bidders, made a counteroffer of 10 percent royalties—15 if Joyce wrote a preface. Instead of a five-thousand-dollar advance, they offered one thousand, and they ignored Sylvia Beach’s request for payment altogether.

Once word got out about her demands, the offers stopped. Ernst met with the most likely publisher, Ben Huebsch, in October 1931 to push the case forward. He insisted on a retainer of one thousand dollars and warned Huebsch that legal expenses could run as high as eight thousand dollars if the case went to the Supreme Court. By December, when it was clear that Sylvia Beach was standing by her demands, Huebsch gave up on
Ulysses
. Instead of counteroffers for the rights, American publishers offered her nothing, and Joyce found himself shackled to the contract he had demanded.

There was, however, one last publisher willing to step into the fray: Random House. As soon as Huebsch stepped aside, Bennett Cerf contacted Morris Ernst to talk about a possible court case. Cerf figured that if he could publish the first legal edition of
Ulysses
in the United States, it would be a coup for Random House—its “first really important trade publication,” as he later put it. Ever since the government started burning the editions arriving from Paris, the buzz about
Ulysses
continued. Joyce’s book was everything Cerf wanted: a guaranteed commercial success with great literary esteem. And a highly publicized trial would do more than boost his sales figures with a headline-generating book. It would promote Random House’s brand and help the six-year-old company consolidate its place in the industry.

Shakespeare and Company was the only problem. Bennett Cerf wrote to Ernst, “I don’t know just what we can do if Sylvia Beach maintains her preposterous stand.” Cerf likely would have paid her a modest fee for royalties, but when he heard about her figures from Huebsch, who had been negotiating for months, he concluded that dealing with her was impossible, so he never tried.

As it turned out, Cerf didn’t have to. Ben Huebsch’s withdrawal turned Joyce’s desperation into indignation. He wanted Beach to receive money, but her exorbitant claims effectively made
Ulysses
captive to publishers’ sexism, and after six months of waiting for something to change, Joyce felt justified in trying to reclaim the book. But he couldn’t do it himself. One of Joyce’s old friends from Dublin, Padraic Colum, began visiting Shakespeare and Company and encouraging Miss Beach to give up her publishing rights. She recounted the details of the conversation in her memoirs.

“What right do ya have to
Ulysses
?” he asked.

“But what about our contract?” she asked. “Is that imaginary?”

“That’s no contract. It doesn’t exist, your contract.”

She informed him that it most certainly
did
exist.

Colum finally told her, “You’re standing in the way of Joyce’s interests.”

After a decade of devotion, the accusation left her speechless. When Colum walked out of the shop, she picked up the phone and called Joyce to tell him that he was free to do whatever he wished with his big blue book. She relinquished all claims on it. Sylvia Beach exited the life of
Ulysses
the same way she had entered it: swiftly, informally and at James Joyce’s coy behest.

—

RANDOM HOUSE SIGNED a contract with Joyce in March 1932. Joyce would receive a one-thousand-dollar advance and 15 percent royalties on sales. By then the crucial relationship for the future of
Ulysses
was the one between the book’s prospective publisher and its lawyer. In some ways, the partnership between Bennett Cerf and Morris Ernst was natural. They were both ambitious risk takers, and they both understood the importance of publicity. Yet there was tension between them. Ernst suspected that Cerf harbored unfriendly feelings toward him, probably because Ernst’s proposal was a bit too shrewd. To dispel Cerf’s qualms about the costs of an obscenity trial, Ernst offered to defend
Ulysses
for free if Random House would pay him a percentage of the book’s royalties. He wanted 5 percent of all trade edition sales and 2 percent of reprint editions. It would be a gamble for both of them: Ernst would pay substantially if they lost. Random House would pay substantially if they won. It was a deal.

Ernst had his work cut out for him. The federal government had to seize copies of
Ulysses
before he could challenge the government’s position, and despite his recent victories, time only seemed to strengthen the Comstock Act—the Supreme Court repeatedly affirmed the government’s authority to control material distributed through the mail system and across state lines. The ban on
Ulysses
had been in place for over a decade, and nothing remotely like it had ever been permissible by the Post Office.

So Ernst decided not to challenge the Comstock Act at all. Rather than mailing copies of
Ulysses
around the United States, Random House could simply do what Joyce’s readers had been doing since 1922: they could break federal law by importing
Ulysses
from another country. Instead of violating the Comstock Act, Random House would violate the Tariff Act, which banned the importation of obscenity. Cerf and Klopfer would not have to print an edition of
Ulysses
and risk having the books destroyed. All they would need to do was import a single copy from Paris and wait for the government to seize it. Their goal was to have a federal court legalize Joyce’s book, and one copy would test its legality as much as one thousand.

The Tariff Act strategy mitigated several problems, the most important of which was that no one at Random House would go to jail. The law provided for an in rem proceeding, which meant that the book itself would be on trial rather than the importer. There were technical advantages, too. While the Comstock Act banned anything “obscene, lewd, lascivious, filthy, indecent or disgusting,” the Tariff Act outlawed only the importation of “obscene” material. Instead of six deadly adjectives, Ernst would have to defend against only one.

The plan was, nevertheless, a long shot. Even if
Ulysses
were deemed legal under the Tariff Act, the Post Office could still bring charges under the Comstock Act, and the government had a long history of prosecuting the same book under two separate laws. Ernst was gambling that a court decision legalizing
Ulysses
would free Joyce’s book from all federal and state obscenity charges. It would not be enough to win. Their victory would have to be resounding.

—

THE CORNERSTONE OF Ernst’s argument was that
Ulysses
was a “modern classic,” and a classic couldn’t be obscene. Instead of defending Joyce’s lewd passages, Ernst wanted to change the terms of the debate—he was going to transform an obscenity trial into a trial about literary value. But to do this he had to get the opinions of literary critics admitted as evidence, which was nearly impossible. The consensus in American courts remained that a book’s literary merit had no bearing on the question of its obscenity. A book should be judged in the courtroom just as it would be in the marketplace—on its own.

Ernst believed that a book couldn’t be separated from expert opinions about its value, but the courts wouldn’t listen, and Ernst had learned this the hard way. During his first obscenity trial in 1927, the judge had barred all the witnesses he brought to defend the accused novel. Ernst was reduced to reading the names of the would-be defenders in front of the jury, and he lost the case. He tried again the following year. He lined up dozens of professors, doctors and social workers to testify in defense of
The Sex Side of Life
. Once again, the judge rejected them all.

At some point it occurred to him: why not put literary opinions
in
the book? If praise were physically inseparable from the government’s seized copy of
Ulysses
, it would be incorporated into Exhibit A of Random House’s customs-seizure dispute. Critical praise would sneak its way into the courtroom. Even if the judge didn’t read the opinions, Ernst could base arguments on them instead of having them dismissed outright. He could engineer the content of the federal trial before it began. And so Bennett Cerf relayed detailed instructions to Joyce’s assistant in Paris, Paul Léon: purchase a copy of the latest edition of
Ulysses
, find praise for the book written by prominent critics, and paste the reviews inside the book’s front cover.

The package containing an illegal copy of
Ulysses
was due to arrive on the SS
Bremen
on May 3, 1932. The day before the book’s arrival, Ernst’s firm sent a letter to the New York City Customs House informing them of an illicit package arriving from France. They should inspect it very carefully as they might want to decide if the contents violated the Tariff Act. But perhaps a letter wasn’t enough. Cerf was worried that if
Ulysses
wasn’t seized within the next two weeks, the case wouldn’t come up before the summer and another publishing season would be wasted. The day before the
Bremen
was scheduled to dock in the Port of New York, Alexander Lindey called Mr. Handler in the customs legal department to let them know exactly what was on the
Bremen
. Handler thanked him for the information and assured him they would be on the lookout.

But the
Bremen
was huge. All the passengers were disembarking at once, and, as Cerf recounted in his memoirs, the customs agents were so overworked that they weren’t bothering with inspections. They were dispatching packages and passengers as soon as possible, stamping everything on sight—trunks, cases, duffel bags—telling delighted travelers, “Get out. Go on out.” Like nearly everything else that day,
Ulysses
passed through customs and arrived, safe and sound, at the Random House office on Fifty-seventh Street.

Ernst was furious when Cerf told him. They had planned for a federal trial pitting
Ulysses
against the Tariff Act for months, so Ernst went
back
to the New York Customs office with the unopened package. He was at a loss as he walked down to the port. How could Handler have let this happen? And how, exactly, did you force a customs agent to search your property?

Ernst walked up to one of the agents and insisted that the official in charge inspect the parcel he was carrying. The inspector didn’t quite hear him. Ernst raised his voice, “I think there’s something in there that’s contraband, and I insist that it be searched.”

Well, this was a new one. The package clearly listed the
Bremen
, which had arrived days ago. The inspector looked askance at Ernst, who stood there and waited as he opened the parcel to see what it contained.