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Culture on Trial: Censorship Trials and Free Expression

By Marjorie Heins


I. The Trials of Ulysses

II. Film Censorship and The Miracle

III. "A Pall of Orthodoxy Over the Classroom"


For decades, “Banned in Boston” was a wonderful catch-phrase for improving book sales.  But if  Boston was a leader in literary censorship, the rest of America was not far behind.  Especially when the subject was sex, government authorities competed for the distinction of banning works they thought immoral.

The bans were usually based on state or federal obscenity law.  But what was “obscenity,” and how were prosecutors, courts, and publishers to identify it?  An English judge defined obscenity in 1868 as material that tends to “deprave and corrupt those whose minds are open to ... immoral influences” and that suggests to “the young of either sex ... thoughts of a most impure and libidinous character.”1  Courts in the U.S. followed this test for most of the next century. 

“Obscenity” thus turned on the presumed vulnerability of youth.  It wasn’t until the 1930s that judges began to rebel against a legal standard that deprived adults of literature thought corrupting to children.  The landmark case involved James Joyce’s Ulysses.

The Trials of Ulysses

In 1920, a literary magazine published the “Nausicaa” episode of Ulysses, in which the hero Leopold Bloom masturbates while watching a young woman display a bit of undergarment.  The New York Society for the Suppression of Vice initiated a prosecution under the state’s obscenity law. 

The trial judges were not impressed by expert testimony that described Ulysses as a brilliant work.  One of the judges refused to allow passages to be read aloud in court because there were females present (including the magazine’s editors).  “Nausicaa” was ruled obscene, and Ulysses was banned in the United States.2

In 1933, Random House challenged the ban by attempting to bring Ulysses into the country.  U.S. Customs seized the book and filed a forefeiture application in federal court.  The case was assigned to Judge John Woolsey, and the second trial of Ulysses began. 

After studying the work, Woolsey ruled that despite its erotic passages and vulgar words, Ulysses did not violate federal obscenity law.  Ignoring the traditional standard -- whether the work would “deprave and corrupt” a vulnerable reader -- Woolsey said the proper test of obscenity is whether the work would “lead to sexually impure and lustful thoughts” in a normal adult.3

The Court of Appeals for the Second Circuit affirmed, explicitly rejecting the vulnerable-child rule because it would suppress “much of the great works of literature.”  Although doubting that Ulysses was the masterpiece its admirers claimed, the court opined that “it is a sincere portrayal” of the “‘stream of consciousness’ of its characters,” and was “executed with real art.”4

Ulysses could now be sold in the United States, but it would be another 23 years before the Supreme Court followed the Second Circuit and rejected the vulnerable-child standard, announcing that the First Amendment does not permit government to reduce the adult population to reading “only what is fit for children.”  The Court then created a test for obscenity that turned on whether a work’s dominant appeal was to the “prurient interest” of average adults, and whether it was “utterly without redeeming social importance.”5 

But the problem of shielding minors remained.  In 1968, the Supreme Court attempted to resolve it by inventing a “variable obscenity” rule under which “girlie magazines” and similar materials, even though protected by the First Amendment, lost that protection if distributed to minors.6

Then in 1973, the Court replaced the “utterly without redeeming social value” test with a new three-part obscenity standard for adults:  whether the material was “patently offensive” according to “contemporary community standards,” appealed to “prurient interests,” and lacked “serious literary, artistic, political, or scientific value.”7  Although today this standard is generally thought to encompass only hardcore pornography, the vagueness and subjectivity of such terms as “patent offensiveness” and “serious value” leave a wide berth for prosecuting artists who may be the James Joyces of the future.      

Film Censorship and The Miracle

While courts in the mid-20th century were expanding constitutional protection for literature, movies were increasingly targets of censorship.  States and localities established licensing boards empowered to ban any film they deemed “immoral,” “sacrilegious,” or otherwise “harmful.”  Using these free-floating standards, Chicago banned newsreels of policemen shooting at labor pickets; Ohio condemned Carmen because women were shown smoking in public; Memphis refused to license a film that showed black and white children in school together.8

It was inevitable, though, that eventually the Supreme Court would acknowledge cinema’s importance as a medium of expression.  That point came in 1952, after New York State revoked a license it had issued for Roberto Rossellini’s The Miracle, on grounds of sacrilege, after a pressure campaign from the Catholic Church.

The Miracle tells the story of a peasant woman who is plied with drink and then seduced by a vagabond whom she mistakes in her stupor for St. Joseph.  When she becomes pregnant, her fellow villagers mock and torment her.  Angry pickets from the Catholic Legion of Decency soon appeared outside the Manhattan theater where the film was showing.  Francis Cardinal Spellman, head of the New York Archdiocese, called The Miracle “vile and harmful,” insulting to “Christian faith and Italian womanhood,” and communist-inspired.9   

Accusations of communism were not unusual in 1950s America, when leftist screenwriters, producers, and workers of all kinds were blacklisted; and politicians attacked avant-garde art as communistic.  But not all Catholics agreed with Cardinal Spellman.  A group of Catholic intellectuals found The Miracle “deeply moving” and “profoundly religious.”  Rossellini himself protested that his intentions were pious:  “‘The Miracle’ occurs when, with the birth of the child, the poor demented woman regains sanity in her maternal love.”10  But Spellman was a powerful political figure; and the state Board of Regents soon revoked The Miracle’s license.

The film’s distributor mounted a court challenge, not only to the vague and subjective “sacrilege” standard, but to the very existence of movie licensing.  The state courts rejected his arguments, relying on a 1915 Supreme Court ruling that films were only a business, not protected by the First Amendment.11  But in 1952, the Supreme Court reversed. 

The opinion in Burstyn v. Wilson first did away with the archaic ruling that cinema was not protected by the First Amendment; then ruled that  “sacrilege” was not a permissible censorship standard.  The word is too vague, the Court said, setting the censor “adrift upon a boundless sea amid a myriad of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies.”  But the Court left open the question whether states could impose prior censorship under a law designed “to prevent the showing of obscene films.”12   

The decision thus did not do away with film censorship.  Licensing boards continued, using other vague standards like “immorality.”  Then in 1965, the Supreme Court invalidated a licensing scheme because it did not provide for prompt judicial review.13  Stripped of their freewheeling power to ban films without first going to court, the censorship boards faded away.

The film industry also eliminated its self-censorship system in the 1960s.  The Hollywood Production Code, which had operated in tandem with licensing boards ever since the 1930s, contained an extensive list of cinematic “don’t’s,” including anything insulting to religion.  During The Miracle case, in fact, the critic Bosley Crowther suggested that the Catholic Church made a such a fuss over this limited-audience film precisely because foreign movies were not subject to the Production Code.14

“A Pall of Orthodoxy Over the Classroom”

Accusations of communism were familiar by the time of The Miracle case, and teachers were often the targets.  A 1949 New York law required the firing of any teacher belonging to an organization that advocated the forceful overthrow of the government.  A group of taxpayers and teachers challenged the law, but in 1952 the Supreme Court upheld it.

The decision in Adler v. Board of Education explained that tests of political loyalty for employment were justifiably designed to stop “subversive groups” from infiltrating public schools and poisoning “young minds.”  A dissent from Justice William O. Douglas protested that guilt by association was “a principle repugnant to our society,” and that loyalty hearings would “raise havoc with academic freedom” by turning the school system “into a spying project.”15  Decisions like Adler did indeed open the door to proceedings where suspect teachers were asked about the books they read, the people they knew, and the nomination petitions they had signed.

It was not until 1967 that the Supreme Court reconsidered its endorsement of political tests for teachers.  The new case was brought by Harry Keyishian, an English instructor at the University of Buffalo, and several of his colleagues.  Each had refused to sign the state’s non-communist oath.  They challenged not only the oath but the state’s listing of “subversive” organizations, its disqualification of teachers who made “seditious utterances,” and its rule that Communist Party membership was automatic grounds for dismissal. 

The Supreme Court now struck down the 1949 law, explaining that vague words like “seditious” made it “a highly efficient in terrorem mechanism.”  It was not clear, for example, whether “the teacher who informs his class about the precepts of Marxism or the Declaration of Independence” would violate the law.  The First Amendment, the Court said, “does not tolerate laws that cast a pall of orthodoxy over the classroom.”16

Keyishian was a landmark, but it did not presage a smooth ride for academic freedom in the years ahead.  Teachers’ and students’ ability to study freely inevitably conflicts with educational authorities’ desire to inculcate their preferred values.  In 1982, the issue again reached the Supreme Court, in a case involving the removal of books by Richard Wright, Kurt Vonnegut, and others from a school library.  The Court recognized school boards’ power to remove books because of sexual content or vulgarity, but ruled that because a library is a “mighty resource in the marketplace of ideas,” authorities could not censor for “narrowly partisan or political reasons.”17 

This distinction between sexual content and political ideas sounded a familiar theme.  Despite such precedents as Ulysses, the Supreme Court still could not see that sexual subjects might have educational importance.


The trials of Ulysses, The Miracle, and Keyishian were turning points in America’s history of cultural censorship.  Of the three targets – sex, sacrilege, and sedition – only the first remains today as an area where artistic expression can be officially banned.  But efforts to censor religious and political ideas have recently reappeared.  From Senator Jesse Helms’s attacks on Piss Christ in 1989 to Mayor Rudolph Giuliani’s attacks on the Brooklyn Museum a decade later, government officials have tried to silence art that offends their religious beliefs.

In the wake of September 11, censorship has also taken political form. Teachers have been punished for statements that question U.S. foreign policy18  Wartime often leads to loyalty tests and impoverished political discourse.  The courts have responded with occasional reminders of the First Amendment’s importance – but often, long after the damage has been done.

This article first appeared in Insights on Law & Society, a publication of the American Bar Association Division for Public Education, Vol. 2, No. 2 (winter 2002).  A longer version appears on the ABA Web site,


1 Regina v. Hicklin, 3 Queen’s Bench 360, 371-72 (1868).

2 See Marjorie Heins, Not in Front of the Children: “Indecency,” Censorship, and the Innocence of Youth (Hill & Wang, 2001), 40-41; Paul Vanderham, James Joyce and Censorship:  The Trials of Ulysses (NYU Press, 1998), 32-34; Margaret Anderson, My Thirty Years’ War (Horizon, 1969), 174-75.

3 United States v. One Book Called “Ulysses,” 5 F.Supp. 182, 183-85 (S.D.N.Y. 1933).

4 United States v. One Book Entitled Ulysses by James Joyce, 72 F.2d 705, 706-07 (2nd Cir. 1934).

5 Roth v. United States, 354 U.S. 476 (1957); Butler v. Michigan, 352 U.S. 380 (1957).

6 Ginsberg v. New York, 390 U.S. 629 (1968).

7 Miller v. California, 413 U.S. 15 (1973).

8  Times Film Corp.  v. Chicago, 365 U.S. 43, 69-72 (1961) (Warren, with Black, Douglas, & Brennan, dissenting); see also Gregory Black, Hollywood Censored: Morality Codes, Catholics, and the Movies (Cambridge, UK: Cambridge U. Press, 1994).

9 “Spellman Urges ‘Miracle’ Boycott,” New York Times, Jan. 8, 1951, 1, 14; Alan Westin, The Miracle Case: The Supreme Court and the Movies (U. of Alabama Press, Inter-University Case Program, 1961), 9; Bosley Crowther, “The Strange Case of ‘The Miracle,’” Atlantic Monthly, Apr. 1951, 37.

10 William Clancy, “The Catholic as Philistine,” The Commonweal, Vol. 53, Mar. 16, 1951, 567; see also Otto Spaeth, “Fogged Screen,” Magazine of Art, Feb. 1951, 44, quoted in Burstyn v. Wilson, 343 U.S. 495, 514-15 (1952) (Frankfurter, concurring); “‘The Miracle’ and Related Matters,” The Commonweal, Vol. 53, Mar. 2, 1951, 507; John Cooney, The American Pope: The Life and Times of Francis Cardinal Spellman (Times Books, 1984), 45.“Rossellini Appeals to Spellman on Film,” New York Times, Jan. 13, 1951, 10.

11 Burstyn v. Wilson, 278 A.D. 253, 258 (N.Y. S.Ct. 3rd Dept.), affirmed, 303 N.Y. 242, 260-61 (1951).  The 1915 decision was Mutual Film Corp. v. Industrial Commission of Ohio, 236 U.S 230 (1915).

12 Burstyn v. Wilson, 343 U.S. 495, 504-05 (1952).

13  Freedman v. Maryland, 380 U.S. 51 (1965).

14 Bosley Crowther, “The Strange Case of ‘The Miracle,’” Atlantic Monthly, Apr. 1951, 35.  On the Hollywood Production Code, see Leonard Leff & Jerrold Simmons, The Dame in the Kimono: Hollywood, Censorship, and the Production Code From the 1920s to the 1960s (Grove Weidenfeld, 1990); Gregory Black, Hollywood Censored: Morality Codes, Catholics, and the Movies (Cambridge, UK: Cambridge U. Press, 1994). 

15 Adler v. Board of Education, 342 U.S. 485, 493-94 (1952); id., 509-11 (Douglas, dissenting).

16 Keyishian v. Board of Regents, 385 U.S. 589, 600-03 (1967).

17 Board of Education, Island Trees School District v. Pico, 457 U.S. 853, 870-71 (1982).

18 See National Coalition Against Censorship, "Free Expression After September 11: An Online Index,"

The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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