To answer this question it is not sufficient merely to find, as I have found above, that Joyce did not write Ulysses with what is commonly called pornographic intent, I must endeavor to apply a more objective standard to his book in order to determine its effect in the result, irrespective of the intent with which it was written.
The statute under which the libel is filed only denounces, in so far as we are here concerned, the importation into the United States from any foreign country of any obscene book. Section 305 of the Tariff Act of 1930, Title 19 United States Code, Section 1305. It does not marshal against books the spectrum of condemnatory adjectives found, commonly, in laws dealing with matters of this kind. I am, therefore, only required to determine whether Ulysses is obscene within the legal definition of that word. The meaning of the word obscene as legally defined by the Courts is: tending to stir the sex impulses or to lead to sexually impure and lustful thoughts. Dunlop v. United States, 165 U.S. 486, 501; United States v. One Book Entitled Contraception, 51 F. (2d) 525, 528; and compare Dysart v. United States, 272 U.S. 655, 657; Swearingen v. United States 151 U.S. 446, 450; United States v. Dennett, 39 F. (2d) 564, 568 (C.C.A. 2 People v. Wendling, 258 N.Y. 451, 453).
Whether a particular book would tend to excite such impulses and thoughts must be tested by the Courts opinion as to its effect on a person with average sex instincts - what the French would call lhomme moyen sensuel - who plays, in this branch of legal inquiry, the same role of 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.
The risk involved in the use of such a reagent arises from the inherent tendency of the trier of facts, however fair he may intend to be, to make his reagent too much subservient to his own idiosyncrasies. Here, I have attempted to avoid this, if possible, and to make my reagent herein more objective than he might otherwise be, by adopting the following course:
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.
It is only with the normal person that the law is concerned. Such a test as I have described, therefore, is the only proper test of obscenity in the case of a book like Ulysses which is a sincere and serious attempt to devise a new literary method for the observation and description of mankind.
I am quite aware that owing to some of its scenes Ulysses is a rather strong draught to ask some sensitive, though normal, persons to take. But my considered opinion, after long reflection, is that whilst in many places the effect of Ulysses on the reader undoubtedly is somewhat emetic, nowhere does it tend to be an aphrodisiac.
Ulysses may, therefore, be admitted into the United States.
December 6, 1933