In honor of James Joyce’s Ulysses, Ireland celebrates Bloom’s Day every June 16. The novel, regarded as one of modern literature’s masterpieces, has been controversial and the target of censors since it was written almost a hundred years ago. It has vexed readers and the courts as they try to wrestle with its complexities. Apple Computer apparently does not share this sense of constraint. Apple recently excised from its popular apps store what it considers offending images that are part of a graphic version of the novel. Whether the company should be allowed to do this will undoubtedly be litigated in the coming years. Those opposing Apple’s censorship will analogize to and distinguish the powers granted US Customs and Border Protection in that agency’s previous efforts to keep out Ulysses from entering through our nation’s borders.
19 USC 1305
Our nation employs a formidable array of laws and enforcement personnel to keep out offending items, like unlicensed weapons, illegal drugs, ancient cultural relics, stolen masterpieces, counterfeit goods, faulty toys/consumer products, forced labor products, infected produce, and endangered species. US Customs and Border Protection (CBP) is also our nation’s censor of first resort. This power is universally endorsed in light of pornography, especially child pornography. But what about censoring ideas? Does the agency have a role in keeping out material based solely on its content?
You would think not. After all, we have the First Amendment to protect crazy, outlandish, and unpopular ideas. We also have a US Supreme Court that even as it turns every rightward, still maintains a strong libertarian bent when it comes it protecting public expression. But strange things happen to our constitutional protections at our nation’s border. They dissipate to almost nothing. For example, the courts have carved out a border search exception to the Fourth Amendment’s protections against unreasonable searches and seizures. CBP officials can search you and your possessions at the border without a warrant and without probable cause. Almost any hunch will do and almost any intrusion is allowed. CBP is granted license to aggressively and unapologetically probe our laptops, cell phones, and any electronic device we possess for most any old reason. I have never read a satisfactory explanation why our courts seem to go flabby at the border, but the Bill of Rights starts to hobble noticeable as it approaches the border, like Superman with kryptonite. It is almost as if our federal judges have no faith that the values embodied in our supreme charter, which they are pledged to protect, can survive the rough and tumble of border life.
CBP is given vast and surprising powers under 19 USC § 1305 to act as censor. Part of the Tariff Act of 1930, this provision prohibits the importation of a motley list of items, including the content of writing in apparent contravention of the First Amendment:
All persons are prohibited from importing into the United States from any foreign country any book, pamphlet, paper, writing, advertisement, circular, print, picture, or drawing containing any matter advocating or urging treason or insurrection against the United States, or forcible resistance to any law of the United States, or containing any threat to take the life of or inflict bodily harm upon any person in the United States, or any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is obscene or immoral, or any drug or medicine or any article whatever for causing unlawful abortion, or any lottery ticket, or any printed paper that may be used as a lottery ticket, or any advertisement of any lottery.
Section 1305 survived a constitutional challenge before the US Supreme Court. US v 12 200-Foot Reels of Super 8mm Film, 413 US 123 (US 1973). Justice William O. Douglas complained futilely in dissent, “I know of no constitutional way by which a book, tract, paper, postcard, or film may be made contraband because of its contents.” Justice Burger writing the majority opinion clearly disagreed.
Not all judges have been as Victorian in their outlook. In of the most famous and fascinating opinions ever issued by a US district court, and one composed with as much dramatic flair as any novel, the Honorable John Woolsey decided that Ulysses was not obscene and could not be confiscated by the Customs Service. US v One Book Called "Ulysses,'' 5 F Supp 182 (DC NY 1933). Judge Woolsey concluded:
The book as a whole is not pornographic, and, while in not a few spots it is coarse, blasphemous, and obscene, it does not, our opinion, tend to promote lust. The erotic passages are submerged in the book as a whole and have little resultant effect. If these are to make the book subject to confiscation, by the same test Venus and Adonis, Hamlet, Romeo and Juliet, and the story told in the Eight Book of the Odyssey by the bard Demodocus of how Ares and Aphrodite were entrapped in a net spread by the outraged Hephaestus amid the laughter of the immortal gods, as well as many other classics, would have to be suppressed. Indeed, it may be questioned whether the obscene passages in Romeo and Juliet were as necessary to the development of the play as those in the monologue of Mrs. Bloom are to the depiction of the latter's tortured soul.
There are other cases where the federal courts decided whether US Customs properly flexed its censoring powers under Section 1305.
A district court reversed the forfeiture of “Contraception” a book written by Marie Scopes, a British doctor. True to its title, this was an instructional manual written for physicians. The judge concluded that the book was not obscene “for the reading of it would not stir the sex impulses of any person with a normal mind.” US v One Book Entitled "Contraception,'' 51 F2d 525 (DC NY 1931). Section 1305 has even reached the importation of contraceptive devices. In a case that foreshadowed Roe v Wade, the Ninth Circuit sided with a New York gynecologist, and against the US Government, when the doctor imported a package of 120 vaginal pessaries (medical devices sometimes uses for contraception) “where it would not be desirable for a patient to undertake a pregnancy.” US v One Package, 86 F2d 737 (2nd Cir 1936).
Lottery tickets too?
The following discussion is not about censoring content, but it says a great deal about the federal government’s extensive and strange power to seize offending material at the board. Section 1305 does not allow you import lottery tickets. You cannot even mail them, although you can, of course, carry them over state lines. See also 18 USC 1301. The reason for this restriction is unclear, but I suspect there are concerns with gambling and crime syndicates. Perhaps the justification is that each state does not want gambling competition from other states or countries. Or maybe the law is intended to prevent people with winning tickets, who cannot make the trip, from selling their tickets to agents who will redeem the tickets in person, as is normally required. This seems to be the court’s motivation in Courtertier v Gil Bonair, 173 F3d 450 (1st Cir 1999). Mr. Courtertier was “a licensed Puerto Rico lottery agent which is in the business of transporting drawn prized Puerto Rican lottery tickets from Saint Thomas to Puerto Rico to redeem said tickets.” US Customs agents in Puerto Rico confiscated his stash of lottery tickets on his way back from the US Virgin Islands. He had around 22,000 lottery tickets worth about $46,000 dollars. The lottery tickets were all issued by the Commonwealth of Puerto Rico, so CBP could not have confiscated them if he had bought them in Puerto Rico. He gave CBP an opening when he carried the lottery tickets on his flight back from the Virgin Islands, a foreign country. The court allowed CBP to keep the confiscated tickets.
Suppressing political activists
Our government has also used Section 1305 to intimidate citizens who oppose its policies, as seen in several court challenges by Edward Haase against the Government. US Customs and FBI officials seized and photocopied Mr. Haase’s books and notes as he returned from Nicaragua, where he had been writing articles that were critical of the Reagan Administration’s policies in that country. Eventually the courts ordered the government to return his papers, awarded him attorneys fees, and issued a permanent injunction. See the Center for Constitutional Rights summary of the Haase and related litigation. The Customs Service issued a directive reversing its policy, a policy that apparently is still in effect.
Section 1305 today
Most of the litigation and court challenges under Section 1305 happened many decades ago. The federal government may have been reluctant to use the provision in light of society’s changing mores and the Supreme Court’s evolving First Amendment jurisprudence. We can also blame the Internet as most content is now sent via the ether in digital form rather than over nation’s borders in paper form. However, Congress has not repealed 19 USC 1305. It is almost as if it is being kept in reserve “just in case.” Like it any other law at their disposal, enforcement authorities can invoke 19 USC 1305 whenever they see a need and opportunity.
You Be The Judge
Be your own judge and bypass both Apple and CBP by reading Ulysses yourself. Click here.
Principal and a founding member of GRVR Attorneys.