James Joyce fans around the world celebrate Bloomsday—June 16, the date on which his novel Ulysses takes place—any number of ways. There are marathon readings and brilliant stage performances. There are solemn rituals (eating a Gorgonzola sandwich), whimsical gestures (carrying a potato in your pocket), and more canonical Joycean exploits (late-night brothel hijinks). Given all the ways Joyce’s novel tends to seep into everyday life, on Bloomsday and year-round, it’s remarkable that Ulysses was illegal to publish, sell, import, or advertise in the United States for over a decade. The novel was banned as obscene until 1933, when Judge John Woolsey of the United States District Court for the Southern District of New York allowed it to roam free on U.S. soil.
Looking back on the fight to legalize Ulysses, now that the novel is 100 years old, should feel more satisfying than it does. Some of the novel’s passages still raise eyebrows (our hero Leopold Bloom, for example, transforms into a woman and is fisted by a brothel madam in front of a rapt audience), and the ability to publish such an unrestrained novel when Nazis were burning books en masse should be an occasion to celebrate how the United States became a haven for free expression.
But somewhere along the road from Ulysses to Twitter, free speech became something else. What began as a movement to protect political and artistic radicalism turned into a license to accept venom, disinformation, abuse, and corruption as if they were civic virtues.
How did we get here? The Ulysses case is worth remembering today because that 1930s legal battle mapped out much of the winding road that First Amendment law has taken since. And yet the novel itself is worth reading today because it has been warning us not to take this path—we shouldn’t treat all speech equally, and we should never let the power of crowds, governments, and corporations drown out individual human voices and experiences. Ulysses, after all, is the modern epic of our private lives.
The Ulysses obscenity case was technically a customs case. A publisher imported one copy of Joyce’s novel from France, and the U.S. government seized it because importing obscenity was as illegal as selling it. The lawyer who defended Ulysses against the government’s seizure was Morris Ernst, general counsel for the ACLU. He spent much of his career fighting obscenity bans on material like sex education pamphlets and marital aid manuals. When he went a step further with Ulysses, Ernst presented the novel as a modern classic—ground-breaking, highly structured, and incredibly difficult. Arousal was not the novel’s effect, Ernst argued, and Joyce himself was a genius leading “a monastic existence” (lawyers can be creative, too!). He submitted an array of glowing reviews and compiled a list of Joyce’s esoteric words: “entelechy,” “hebdomadary,” “quadrireme”—not your standard pornographer’s dirty talk.
What Ernst didn’t argue before Judge Woolsey was that Ulysses was protected by the First Amendment. Each time Ernst had invoked the Constitution in previous obscenity cases, he was shut down. The most liberal First Amendment interpretation at the time was that the Constitution protected overtly political speech—sexual material didn’t count. Ernst knew that expanding free expression in Joyce’s case meant convincing a judge that the “obscenity” label didn’t fit Ulysses.
Woolsey took several weeks to read Joyce’s novel cover to cover, instead of focusing on the dirty passages that the district attorney’s office marked with heavy X’s in the government’s seized copy. His decision in The United States of America v. One Book Called Ulysses (1933) emphasized the novel’s value. Joyce is “a great artist,” he declared, and Ulysses “is an amazing tour de force.” True, many parts were “disgusting” and “dirty,” but overall, he found the novel a “tragic and very powerful commentary on the inner lives of men and women.” The merit was worth the dirt.
Woolsey never mentioned the Constitution, but he was invoking a crucial First Amendment argument gaining traction in federal courts: Speech should be legal if it has value, and it can have value even if it disgusts. This argument resembled Justice Oliver Wendell Holmes Jr.’s 1919 dissent in Abrams v. United States. Holmes claimed that anti–World War I pamphlets are entitled to First Amendment protections because a nation’s “ultimate good” is best determined by open debate. Democracies, he reasoned, are strengthened by incendiary protest. Repulsive speech has merit.
To this day, First Amendment protections rest upon courts recognizing the value of speech, not the freedom of it. It was Holmesian reasoning that, in Memoirs v. Massachusetts (1966), narrowed the legal definition of obscenity from any material tending to “deprave and corrupt” people to material that is “utterly without redeeming social value.” Over time, constitutionally protected value expanded from political speech to artistic expression, to advertising and trademarks, and then to certain kinds of falsehoods, insults, and lies. Even bad speech is good speech, the thinking went, because it draws out facts and strengthens sound ideas. This is how the First Amendment came to protect nearly all viewpoints against state interference, from anarchism to KKK rallies to Westboro Baptist Church members protesting the funerals of fallen soldiers with signs featuring homophobic slurs.
One value that federal courts would end up eagerly protecting is monetary—and that’s also on display in the Ulysses case. Literary merit took top billing in Woolsey’s decision, but the case appeared on his schedule because a large corporation wanted it there. Ernst had teamed up with Bennett Cerf, the co-founder of Random House, who had left Wall Street to get into publishing. Cerf’s young company published affordable editions of “modern classics” for the nation’s growing readership while bringing out deluxe editions of those same classics for wealthier clientele. The two-pronged strategy worked well for the buyers of the boom-and-bust 1920s and ’30s.
Cerf saw Ulysses as an excellent business opportunity: Joyce fit perfectly into the publisher’s modern classics catalog, and the national publicity of a censorship trial would be priceless. As it turned out, Woolsey’s praise for the novel was better publicity than Cerf imagined—Random House printed Woolsey’s decision in its Ulysses editions for decades, and the novel became a bestseller. Beyond that, the publisher’s sales strategy (beautiful first editions followed by inexpensive reprints) was crucial for obtaining the book’s legal defense in the first place. For while smaller publishers balked at Ernst’s fee, Random House’s business model prompted him to work on contingency: Ernst would get a percentage of royalties on every copy of Ulysses they sold.
And it’s not just that money set the stage for the Ulysses battle. The corporate sheen of Random House was part of the substance of Ernst’s arguments. He noted Random House’s deluxe editions of Nathaniel Hawthorne and Emily Brontë and emphasized that its Leaves of Grass edition “sold for $100 a copy.” His point was clear. Obscenity is an underground, illicit trade. Random House is a reputable business, and reputable business deserves protection.
Associating lawful speech with the flow of money wasn’t new in U.S. law. It was there from the beginning of the First Amendment’s modern expansion. Holmes’ 1919 dissent emphasized the importance of “free trade in ideas” because the test of truth, he argued, is whether an idea gets “accepted in the competition of the market.” After Justice William O. Douglas, echoing Holmes, emphasized the importance of protecting “the marketplace of ideas” in U.S. v. Rumely (1953), the marketplace metaphor would appear in First Amendment decisions so often that one could be forgiven for thinking that the link between speech and capitalism was some sort of legal axiom. So by the time the majority in Citizens United v. FEC declared in 2010 that corporate political donations are protected First Amendment speech, modern First Amendment law had arrived. Money is speech. The test of truth was capitalism all along.
It was only after the spread of social media that a nagging little question got louder: What if more speech doesn’t actually help us determine the truth? Or a nation’s “ultimate good”? Maybe it’s just a matter of time, you might have told yourself. Perhaps it’s only a few more business cycles before the invisible hand stops guiding so many consumers to “replacement” theory and QAnon conspiracies. But the question became more insistent once history forced us to consider that widespread election disinformation might not be debunked until long after an insurrection. Or that people might not reject a horse dewormer as a cure for a respiratory virus until sometime after a pandemic reaps 1 million U.S. deaths. What if, in a world flooded with voices, the truth never wins out? What if our increasingly dominant medium of speech spreads falsehoods and lies faster and further than the truth? What if instead of the truth all we will have is Twitter?
The perfect metaphor for 21st-century free speech is the world’s richest man, Elon Musk, attempting the largest corporate acquisition in history so that he can own what he calls “the digital town square where matters vital to the future of humanity are debated.” He’s making his bid not to make money, he says, but because he fancies himself a “free speech absolutist”—never mind his history of punishing certain people who speak freely. What he means is that he opposes Twitter’s moderation policies designed to reduce harassment, disinformation, and the erosion of democracy. He calls Twitter’s decision to suspend Donald Trump because he used the platform to stoke and defend a violent insurrection “morally wrong.”
Just about the only speech that Musk wants to silence is bots—automated accounts run by machines posing as humans. The problem is so dire to Musk (despite Tesla’s own apparent use of bots) that he has threatened to rescind his offer if Twitter’s bot accounts exceed its estimates.
There’s at least one disturbing possibility that seems not to have occurred to this free speech absolutist: What if bots are protected by the First Amendment? No federal court has ruled upon the constitutionality of bot speech, but it’s probably only a matter of time before a case arrives. And when it does, the legal groundwork for bot protection will be in place. Nonhuman speech is protected. So is marketing and advertising, the anonymity of bot designers, lies (in many cases), and intentionally inflicting emotional distress upon public persons. A private company like Twitter is usually free to moderate or censor speech, but that could change if the courts agree with Musk that Twitter is essentially a public place—a “town square.” Even laws requiring that bot accounts be identified as bots might be unconstitutional, if they are not completely ineffective.
We may be facing a future in which A.I.-powered bots can swarm every Twitter account and dominate every hashtag, driving away many of the humans on the platform and, by their influence, remaking those who remain in their bleak mechanical image. The world would edge closer to a white noise of spam and propaganda and abuse and reflexive shouts where no one is actually talking to anyone.
In other words, we would have a world where a book like Ulysses would be legal to publish and yet no longer possible to write. Because Ulysses isn’t about the value of obscene words. It’s about the work of exploring the consciousness of individual human beings. Some episodes can read almost like a crowd of voices jostling for control—like a Twitter mob—but the novel is an epic journey through all of these voices before returning home to a single person, Leopold’s wife, Molly Bloom. The final chapter is one great unbroken monologue—Molly’s thoughts as she lies awake next to sleeping Poldy. It is the most obscene chapter only because it is the most complete.
Molly Bloom’s voice is so vast (Joyce described it as “turning like a huge earth ball slowly surely and evenly round and round”) because it is so singular—a full individual’s voice, in a full individual’s body. No bots or memes, no crypto, no burns, no doxing or blocking. No check marks, no cops, no ads, no corporations or takeovers.
Joyce wanted to make money from Ulysses—everyone connected with it wanted to make money—but it wasn’t the most important thing. He would prefer, he said, one reader reading his book a million times to a million readers reading it once.
One reader listening carefully to one woman for pages, for hours, for weeks. If we need a metaphor for the speech we need to protect most in this democracy, let that be it.