Literary criticism and the practice of law would seem to have little in common. One embraces its subjective stance, while the other appeals to a fixed code of conduct. Yet there are signs of overlap in the fascinating story of how U.S. obscenity law — in particular, as it applies to book bans — developed during the 20th century, culminating in the 1973 case of Miller v. California, which remains the legal standard today.
Censorship got its start only a few years after the founding of Plymouth Colony. In 1637, the English lawyer Thomas Morton published New English Canaan, a description of the New World inspired by his own disastrous visit in the 1620s. Because the book criticized the Puritans’ harsh treatment of Native Americans, Puritan authorities outlawed it in the colonies. A decade or so later, William Pynchon, called by writer Daniel Crown the “forgotten founding father of colonial New England,” saw his book The Meritorious Price of Our Redemption burned by officials in Boston, Massachusetts.
Other one-off bans followed, most religious in nature, until the 1873 Comstock Act whetted a national appetite for literary restriction. Named for Anthony Comstock, founder of the New York Society for the Suppression of Vice, the Act made it illegal to send “obscene, lewd or lascivious,” “immoral,” or “indecent” publications through the mail, as well as to sell, give away, or even possess such material. Vice societies like Comstock’s proliferated in the 19th century. They were committed to the idea that, in the words of historian Paul S. Boyer, “human misery and social disorder were rooted in environmental maladjustments and that these could be corrected by men of good will.” Society leaders took it upon themselves to enforce moral standards and suppress what they considered immoral behavior.
The Boston-based New England Watch and Ward Society, founded in 1879 and primarily led by Boston Episcopalian Frederick Baylies Allen, became a leader in the genteel fight against social ills such as prostitution, gambling, alcohol abuse, and “impure literature.” The United States at the turn of the century had become reform-minded, which dovetailed well with the Society’s interests. In 1911, former Harvard President Charles William Eliot praised the Society for investigating social evils and combatting them “by drying up the sources of immorality and crime.”
By the 1920s, America was experiencing major changes. The “Roaring Twenties” ushered in a more fast-paced, consumerist lifestyle that embraced new technologies such as cars, radio, and film. The 18th Amendment kicked off America’s decade-long experiment with Prohibition, while the 19th Amendment gave women the right to vote.
Censorship also became a more cohesive movement. Boston, with its heavy Irish Catholic influence, was an early cynosure. The Boston Booksellers Committee, founded in 1915, became the main agent of censorship organizing. Comprising three Watch and Ward officials and three pliable store owners, the group evaluated new publications and told the city’s booksellers which titles should not be stocked. Though it had no formal power, the Committee became hugely influential, threatening legal action against any seller who went against its wishes. It even asked the district attorney for informal opinions on which books to ban. It was a sort of censorship CIA.
One of these books was Theodore Dreiser’s magnum opus, An American Tragedy. Published 100 years ago this December and based on the headline-making 1906 trial of Chester Gillette for the murder of his pregnant girlfriend, Grace Brown, the novel tells the story of a young man who romances two women — one wealthy, one a factory worker — and ends up killing one.
In 1927, the Committee placed its seal of disapproval on American Tragedy’s subject matter — sex, abortion, murder — and “obscene language.” Dreiser’s publisher, Donald Friede, decided to test the ban by personally selling a copy to a Boston police lieutenant, for which he was arrested. The resulting trial was sensational, with an anti-censorship rally the night before at which birth control pioneer Margaret Sanger sat on stage, gagged. A letter from Upton Sinclair, whose book Oil! had been banned in the city, was read aloud in which he said, “I would rather be banned in Boston than read anywhere else” because “when you are banned in Boston you are read everywhere else.”
The crux of Friede’s defense was that it was unfair to condemn a whole book on the basis of a few passages. His attorney was American Civil Liberties Union co-founder Arthur Garfield Hays, whose resume seems ripped from law school case studies: the Scopes Monkey Trial, the Sacco and Vanzetti case, the Scottsboro Boys. Hays told the jury that there were 432 passages in the Bible with a greater “frankness of expression” than anything in American Tragedy. “What book of the ages,” he asked rhetorically, “which has stood as literature would stand up under the tests which have been applied to Dreiser?” His defense — that a book should not be reduced to its most controversial content — did not prevail, maybe because it was new to obscenity litigation. Friede was found guilty and fined $200 on top of the $100 penalty he had already received during an earlier court appearance.
Hays’s argument would, however, become central to later book ban trials. The idea mirrored the growth of a singular literary theory: the so-called New Criticism. New Critics rejected earlier theorists who relied on outside sources — authors’ biographies, historical trends, critical contexts — to interpret literature. Instead, they saw each literary work as containing its own keys to interpretation. All you had to do was read the text carefully.
But you had to read the whole text. Cherry-picking led to moralism, which New Critics rejected. In his 1941 book The New Criticism, which looked back to the movement’s origins in the 1920s, poet and essayist John Crowe Ransom highlighted the theory’s scientific qualities. He praised the critic I.A. Richards, whose “psychological” approach to criticism he admired. In 2025, psychological readings of literature are commonplace, but when Richards did it in the 1920s, about 20 years after the publication of Sigmund Freud’s The Interpretation of Dreams, it was something new. Psychology tends to look at the entire person, the integration of mind and body, and that was reflected in the outlook of the New Critics.
Though it failed to acquit Donald Friede, the methods of New Criticism led to a different result in a more famous case: United States v. One Book Called Ulysses, which concerned James Joyce’s virtuosic and often raunchy masterpiece. Published first in Paris in 1922, it was banned in the United States until 1933, when the publisher Random House was charged with importing a copy in violation of the Smoot–Hawley Tariff Act.
Signed into law by President Herbert Hoover on June 17, 1930, the Act raised tariffs on over 20,000 imported goods in an effort to protect American business from foreign competition. (It had the opposite effect, spawning retaliatory tariffs and hastening the Great Depression.) Utah Senator Reed Smoot, the law’s co-sponsor, was a devout Mormon, and he tucked into the legislation a prohibition on importing “immoral articles” — i.e., “any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation … which is obscene or immoral.” It also enjoined contraceptives, any abortion-related materials, and lottery tickets.
The Ulysses case ended up before Judge John Munro Woolsey of the Southern District of New York. The government’s argument was three-fold: (1) Ulysses contained too much sex and “unparlorlike” language; (2) it was blasphemous; and (3) it provoked coarse thoughts and desires. Random House’s attorney, Morris Ernst, emphasized the novel’s quality and cultural significance. He admitted that the book “contain[s] occasional episodes of doubtful taste” but, like Arthur Garfield Hays, argued that it must not “be judged on the basis of isolated passages.”
Woolsey was sympathetic. After reading Ulysses — all 278,000 words of it — he praised Joyce’s writing, commenting that “[e]ach word of the book contributes like a bit of mosaic to the detail of the picture which Joyce is seeking to construct for his readers.” If you are looking for a one-sentence summary of New Criticism, this could be it. Woolsey also noted Joyce’s effort “[t]o convey by words an effect which obviously lends itself more appropriately to a graphic technique,” which he thought accounted for “Joyce’s sincerity and his honest effort to show exactly how the minds of his characters operate.”
Woolsey handed down his decision on December 6, 1933, the day after the end of Prohibition, ruling that Ulysses was not obscene and could be admitted into the United States. The following year, that decision was upheld by the U.S. Court of Appeals for the Second Circuit, which ruled that, though there are some vulgar passages, “the book as a whole … is written with such evident truthfulness in its depiction of certain types of humanity, and is so little erotic in its result, that it does not fall within the forbidden class.”
The Ulysses case was a game-changer for literary litigation in the 20th century. Allen Ginsberg’s “Howl,” D.H. Lawrence’s Lady Chatterley’s Lover, Henry Miller’s Tropic of Cancer — all were targeted, and all prevailed.
The case of Lady Chatterley’s Lover shows how a later evolution in literary theory found its way into the courtroom. In 1959, Grove Press, an avant-garde publisher in Greenwich Village, New York, brought out the first-ever American edition of the book. The postmaster general declared it obscene, and Barney Rosset, Grove’s owner, sued. His lawyer, Charles Rembar, saw it as an opportunity to test the Supreme Court’s 1957 decision in Roth v. United States, then the controlling view of obscenity. Samuel Roth, a New York bookseller, had been convicted of mailing obscene materials in violation of federal law. In upholding Roth’s conviction, Justice William J. Brennan Jr. stated that the test for obscenity was “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” Brennan had grouped literature into two categories — works with redeeming social importance and works without.
Rembar wondered, what about a third track: works that are redeeming and obscene?
On July 21, 1959, District Court Judge Frederick Bryan ruled in favor of Grove, noting that Lawrence’s book, in spite of its bawdy content, “is replete with fine writing and with descriptive passages of rare beauty. There is no doubt of its literary merit.” This is the same whole-book approach that had won the day for Ulysses. Yet Bryan went a step further. “In one best selling novel after another,” he wrote, “frank descriptions of the sex act and ‘four-letter’ words appear with frequency […] Much of what is now accepted would have shocked the community to the core a generation ago. Today such things are generally tolerated whether we approve or not.”
Recall that, according to the New Critics, a literary work was self-contained. Bryan’s words, however, anticipate the New Historicism that would flower in the 1970s and ’80s, a rejection of the text-only approach of New Criticism, which had already rejected a historical approach. (Literary theorists are always rejecting something.) New Historicists saw every text as related and indebted to other texts. Likewise, in the 1957 case People of the State of California v. Lawrence Ferlinghetti, Judge Clayton Horn stated that there can’t be an absolute rule for what is obscene “because such determination depends on the locale, the time, the mind of the community and the prevailing mores.” Such statements emphasize the interconnectedness of literary works.
In 1973, New Criticism and New Historicism blended in Miller v. California. Five years earlier, Marvin Miller, the so-called “King of Smut,” had been convicted of mailing obscene matter — specifically, advertisements for erotic books and films — in violation of California law.
As in the case of bookseller Samuel Roth 16 years earlier, Miller’s conviction was upheld by the Supreme Court. In his majority opinion, Chief Justice Warren E. Burger articulated a new test of obscenity: “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”
Judges continue to bring up the literary value of works “taken as a whole” when deciding whether books can be written off as obscene in the 21st century. Earlier this year, as it happens, this interpretive approach resulted in the restoration of the century-old An American Tragedy to library shelves. The decision concerned a 2023 Iowa law prohibiting “instruction related to gender identity and sexual orientation in school districts, charter schools, and innovation zone schools in kindergarten through grade six.” One Iowa school district, using AI to decide which books to ban, removed Dreiser’s classic from shelves. But in March 2025, a district judge blocked the law, writing that it “makes no attempt to evaluate a book’s literary, political, artistic, or scientific value before requiring the book’s removal from a school library.” In another echo with obscenity cases past, he added that “The fact that the Bible and other religious texts are exempted from Senate File 496 reinforces the problem because it shows that even the Iowa Legislature does not believe all books involving sex acts are devoid of pedagogical value.”
But the Iowa measure was but one of many censorship efforts that have taken hold at the state level over the past four years. A 2022 Missouri statute criminalizes the actions of anyone, including librarians, who provides access to a book deemed “sexually explicit.” Similarly, an Oklahoma law from the same year singles out employees of schools and public libraries as eligible for criminal prosecution for exposing students to indecent material. It’s Donald Friede all over again. Throw in DEI bans and the targeting of books with minority or LGBTQ+ characters, and H.L. Mencken could have been writing about our own time when he observed that Boston in the 1920s “present[ed] a most marvelous picture of allowing fanatics undisputed power. Among the civilized element all resistance has been suppressed.”
And judges can’t always be counted upon to do close reading. In May, in the case of Little v. Llano County, the Fifth Circuit Court of Appeals upheld a Texas library’s book ban, citing the history of “bad for morals” books being kept from the public in the 19th century.
From the moment they emerged in the mid-19th century, public libraries have shaped their collections to present what they held to be worthwhile literature. What is considered worthwhile, of course, evolves over the years. Public libraries used to exclude most novels, which were thought bad for morals. Today a library would not think of excluding Fifty Shades of Grey. But what has not changed is the fact, as true today as it was in 1850, that libraries curate their collections for expressive purposes.
Little represents the newest frontier in censorship litigation. No longer are governments merely silencing authors à la Ulysses and Lady Chatterley’s Lover; they are substituting their own voices. The Fifth Circuit held that, because “libraries’ collection decisions have traditionally expressed libraries’ own views about what constitutes worthwhile literature,” those decisions are government speech and therefore not bound by the First Amendment.
Speech with no speakers? The literary critics will love that.