Penguin Press, Random House 2014
Anyone interested in the First Amendment of the U.S. Constitution, censorship, book banning, and the obscenity trials of what has been called the most important English-language book of the 20th century will want to read this award-winning book. If you have read part or all of Ulysses or any of James Joyce’s other books, you’ll have a special interest in – and will receive a special reward from – Kevin Birmingham’s scholarship, graceful and witty writing, and the remarkable cast of characters who fought and triumphed to make Ulysses become legal in the United States and around the world. If not, you’ll still experience a thrilling read.
Below is an excerpt from the book giving some First Amendment history that I was unaware of and that ASJA members, long dedicated to freedom of the press, will want to know. The excerpt is being posted here with the permission of the author, Kevin Birmingham.
“The First Amendment could not protect Ulysses, nor could it protect any other book the U.S. government had burned before it. Freedom of speech, the right that Americans consider fundamental to democracy, did not emerge as a freedom in any real sense until well into the twentieth century. When the Bill of Rights was passed, the First Amendment was understood to protect citizens from “prior restraint” – it prohibited the federal government from interfering with a publication before it was printed. The government therefore retained the authority to halt the circulation of any words that had a “bad tendency” upon general readers, and a troublesome idea (including a statement of fact) could be outlawed if it was printed or spoken in public. Even if the speech wasn’t troublesome, a state like New York or Ohio could ban it because judges believed that the First Amendment pertained only to the federal government. The idea that the Constitution protects free speech rights from both federal and state interference didn’t start to develop until 1925.
“First Amendment law began to shift in response to the Espionage Act. In a pair of 1919 Supreme Court decisions regarding pamphlets protesting the war, Justice Oliver Wendell Holmes indirectly expanded the First Amendment’s scope. That is, he whittled down unprotected speech from utterances that have a vague “bad tendency” to speech that amounts to a “clear and present danger” to the public. Holmes’s more forceful opinion came out as a dissent in Abrams v. United States.
‘When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.’
“Free speech was a constitutional freedom because it created the conditions for discovering truth – namely, a free marketplace of ideas. But Holmes didn’t think the marketplace included all ideas. The trade that concerned the First Amendment was overtly political speech involving society’s ultimate good. Free speech was the best way for a society to find stability when turbulent times upset fighting faiths, and yet free speech was not itself a fighting faith. Rather, it was a way to cope with political doubt. To invoke the First Amendment to defend a novel like Ulysses – even if it wasn’t obscene – would have been absurd.”
Note: Kevin Birmingham will be in New York City at Symphony Space for its annual Bloomsday celebration on June 16, 2017.