Morris Ernst was an American lawyer.
In 1933, he made it possible for James Joyce’s Ulysses to be legally published in the US for the first time.
By then, Ulysses was more than ten years old. Joyce had taken eight years just to write it. It was first published in book form by Shakespeare and Co, a book shop in Paris, but it had already been serialised in literary magazines as it was being written.
Those magazines had been withdrawn from circulation – the Ulysses excerpts were deemed obscene. The book itself was sold under the radar and distributed through the post. That too was banned.
The obscenity laws in America had been aggressively enforced for decades. This was down to the Comstock Act, a peevish piece of legislation named after a crusading puritan who ran the New York Society for the Suppression of Vice.
Imagine Mary Whitehouse, but with actual power.
The Act outlawed anything “obscene, lewd, lascivious, filthy, indecent or disgusting”.
That’s a definition that is both comprehensive and vague – no mean feat. Needless to say, Ulysses, with its swear words and unprecedented portrayal of sex, fell easily within its sights.
But Ernst had a plan.
The avant-garde and the modernists loved Ulysess and a brave publisher called Random House wanted to print it.
Progressive opinion was on his side.
Ernst reckoned that if he could re-frame the debate he might have a chance.
He reckoned that if Ulysses was judged solely on its literary value, rather than whether it was obscene, he could change people’s minds.
It wouldn’t be easy.
The concept of ‘literary context’ didn’t exist back then. Judges weren’t obliged to consider any part of books on trial that weren’t offensive. They routinely barred expert literary witnesses from trials, so the literati Ernst had lined up for the trial might not even be called.
Ernst did the usual procedural stuff. He delayed and deferred the court date until the right judge – a literary liberal – got assigned to the case.
He waived his right to a jury. Which meant he was only dealing with one set of prejudices, not thirteen.
But the masterstrokes came before the trial.
Ernst needed the government to seize a copy in order to prosecute. That gave him an opportunity to engineer the situation to his advantage.
If he tried to sell the book, the book would be prosecuted under the Comstock Act. But if he imported it, it would be prosecuted under the Traffic Act instead.
The Traffic Act didn’t ban what was “obscene, lewd, lascivious, filthy, indecent or disgusting”. It only banned what was “obscene”.
So that meant one subjective adjective, not six. Which would make winning the argument a lot easier.
So Ernst boarded the ferry to Detroit himself and demanded to be searched.
They found the book.
But most brilliant of all was how Ernst engineered what book they found.
The government only required one book to find grounds for prosecution.
So Ernst only needed one copy.
That meant Random House saved an awful lot of money. (Incredibly, the US routinely burned books back then.)
But what it really meant was this.
He could control the evidence that made it into the courtroom.
The book wasn’t just the target of the prosecution.
It was Exhibit A of the trial.
Forget ‘literary context’. If Ernst could engineer the evidence, he could define the very basis of the trial.
Instead of calling expert literary witnesses, the literary opinions could already be in the book.
Ernst secured a copy of the latest edition. He cut out glowing reviews from the newspapers, and pasted them inside the book’s front cover.
That was what the Detroit border officials found. That was the evidence.
Critical opinion was smuggled into the courtroom.
Ernst had thought of everything.
The right judge, no jury, favourable terms of prosecution. They all contributed.
But, critically, he’d managed to engineer the content of the trial before it began.
And he won.
Sometimes winning an argument isn’t purely about what you say.
It’s about stacking the odds in your favour.