In February 1921, a New York court convicted Margaret Anderson and Jane Heap of obscenity and fined them $50 each for publishing an excerpt from Ulysses in their low-circulation literary magazine. They had no money, so someone else paid the fines. Later, Anderson regretted not going to jail instead. Heap took the long view. “The only question relevant at all to Ulysses is–Is it a work of Art?” she wrote. It took thirty-six years for the law to come around. Beginning in 1957, the Supreme Court posed Heap’s question in deciding the scope of First Amendment protection for descriptions of sex in works of art. Heap died in 1964 and Anderson in 1973. Each remains unpardoned for the crime of publishing parts of the greatest English-language novel of the twentieth century. In this 125th anniversary of Joyce’s birth, it’s time to expunge the record.

With almost no funds, Anderson, then 28, started The Little Review in Chicago in 1914. Heap joined her in 1916, and they moved the magazine to New York a year later. They published good poets and writers, the already famous and the not yet famous: Ezra Pound, Ford Madox Ford, T.S. Eliot and William Carlos Williams among them. And they published excerpts from the yet unfinished Ulysses, which Pound, their European editor, got from Joyce and forwarded. In her disjointed autobiography, Anderson described her reaction on receiving the first excerpt: “This is the most beautiful thing we’ll ever have, I cried. We’ll print it if it’s the last effort of our lives.” It wasn’t. Serialization of Ulysses, which began in March 1918, continued to December 1920. There were problems at the post office, which burned some issues, but that was nothing you couldn’t deal with if you were dedicated to great literature, which Anderson and Heap were.

The conviction of Anderson and Heap delayed American publication of Ulysses for a dozen years after Joyce completed it, in 1921. Personal and financial risks were too great. Until the young Bennett Cerf appeared in 1932 with his new company, Random House, represented by civil liberties lawyer Morris Ernst, no one would chance publication despite Joyce’s growing reputation or the fact that in February 1922, Sylvia Beach published Ulysses in France (in English) through her bookstore, Shakespeare and Company, without incident and with good sales, amounting to eleven editions in the ensuing decade. Within weeks, smuggled copies of the French edition were selling for $50 in New York.

No matter. In the summer of 1922 John Quinn, a prominent and politically connected New York lawyer, told Harriet Shaw Weaver, Joyce’s British benefactor, that “Ulysses, unexpurgated, unchanged, cannot be published in the United States without the certainty of prosecution and conviction.” This was partly his fault. Quinn, a friend of Joyce, Yeats and Pound, reluctantly defended Anderson and Heap in court. He disliked his clients and didn’t want the case. He was certain he would lose and did. If he had been less certain, he might have won.

Anderson and Heap had invited trouble when, in search of readers, they mailed unsolicited copies of the July/August 1920 issue to potential subscribers. The issue contained a part of the novel’s “Nausicaa” episode, which finds Leopold Bloom on the beach not far from a young woman, Gerty MacDowell. Satirizing romance fiction, Joyce wrote:

She leaned back far to look up where the fireworks were and she caught her knee in her hands so as not to fall back looking up and there was no one to see only him and her when she revealed all her graceful beautifully shaped legs like that, supply soft and delicately rounded, and she seemed to hear the panting of his heart, his hoarse breathing, because she knew about the passion of men like that…

Gerty continues to lean back as Bloom watches and ejaculates in his pants.

A copy of this issue reached a girl, age unknown, who showed it to her father, a lawyer. He sent it to the district attorney, Edward Swann, with a note. “Surely,” he wrote, “there must be some way of keeping such ‘literature’ out of the homes of people who don’t want it even if, in the interests of morality, there is no means of suppressing it.” This was quite sensible. Those who want it could buy it; others shouldn’t have it sent unsolicited. But Swann chose an aggressive course. He enlisted the services of John Sumner.

Sumner, a graduate of NYU law school, was the second secretary of the New York Society for the Suppression of Vice (Anthony Comstock was the first). Responding to Swann, he bought copies of The Little Review at the Washington Square Bookshop on West 8th Street in Greenwich Village (today it’s a shoe store). He read the “Nausicaa” episode, found it obscene and filed a complaint at the Jefferson Market Courthouse a few blocks away (today it’s a library where patrons can borrow Ulysses). Three judges (no jury) convicted Anderson and Heap in February. They did not appeal. Quinn, who worked free, had no wish to continue. His clients had no money for another lawyer.

Alas. An appeal might have succeeded and changed the publishing history of Ulysses in America. In 1921 the law remained mostly hostile to anything in print (or other medium) if “the matter” had a “tendency…to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” That is the unexplained test in an 1868 English case, Queen v. Hicklin. Despite its lack of anything that could be likened to legal reasoning, Hicklin had substantial influence on American obscenity law. But rulings were inconsistent. One court might offer Hicklin as the only justification for suppression, while another would struggle to escape its straitjacket. Who, after all, wanted to be remembered as the judge who banned Voltaire, Ovid, Fielding or Rabelais, each of whose works had been the subject of New York litigation?

The law was changing. Censors lost important cases in the period toward and after the end of the First World War. These included the 1918 acquittal–before the same court that later tried Anderson and Heap–of bookstore clerk Raymond Halsey for selling Sumner a copy of Théophile Gautier’s Mademoiselle de Maupin, first published in France in 1835 and in the United States in 1917. The book described serial seductions, cross-dressing and same-sex attraction. Here is how a Vice Society brief described one theme:

“Rosalind,” masquerading in man’s attire as the Chavalier Theodore de Serannes, succeeds in inflaming Rosette’s passions and a large part is given to Rosette’s vain efforts in trying to bring “Theodore” as a lover to the crucial point, and her inability to repay Rosette’s love in the one way desired, ending in a duel with Rosette’s brother Alcibiades.

Not only was Halsey acquitted, he sued the Society for malicious prosecution and won $2,500 from a jury, affirmed on appeal.

The Society suffered other losses. In September 1922, a judge dismissed a Sumner complaint against publisher Horace Liveright, who sold a translation of Petronius’ Satyricon. In the same month, another judge dismissed a complaint against Thomas Seltzer, who had angered the Society by publishing D.H. Lawrence’s Women in Love; Arthur Schnitzler’s Casanova’s Homecoming; and A Young Girl’s Diary with a preface by Sigmund Freud. These verdicts, though coming more than a year after the Anderson and Heap convictions, were part of a growing trend away from Hicklin.

Why couldn’t Quinn tap into that trend? It didn’t help, of course, that he had no faith in his clients’ case. As important, Quinn was an insider, an accommodator, when the defense needed a fighter. Where Thomas Seltzer mounted an aggressive publicity campaign, Quinn was chagrined that his clients had the temerity to bring their supporters to court. Anderson later wrote that Otto Kahn, who gave The Little Review financial help, told her: “John Quinn is rather old fashioned, I’m afraid. I should have given you Morris Gest as a publicity agent and had the case on all the front pages.”

Some of Quinn’s legal arguments are mystifying. He tried to distinguish between types of filth. Although Joyce’s work was filthy, Quinn conceded, it was not the sort of filth that corrupted (he cited Oscar Wilde as an example) but the sort that deterred. And at a hearing to decide if the case should go to trial, he argued that Ulysses could not corrupt, because no one could understand it. The judge was unimpressed. There is “one…episode,” he ruled, “where the man went off in his pants, which no one could misunderstand.”

But we need not fault Quinn’s defense to conclude that Anderson and Heap deserve exoneration. They were ahead of their time. The law and the facts have caught up with them. The law now asks Heap’s question–Is it a work of Art?–in deciding whether written or visual expression is constitutionally protected. And Anderson was right about the literary value of Ulysses. Here is a risk-free pardon opportunity for Eliot Spitzer, New York’s new governor.

Free the Ulysses Two.