Part 63

Thwarted by this formidable language, the book dealer took his problem to Cairns, who was then practicing law in Baltimore. Cairns appealed the ruling by Customs to the Customs Court of Appeals. Then he cannily persuaded the judge to hear the case without a jury--and to hear the testimony of expert witnesses, including a psychiatrist, a professor of English, and a newspaper editorial writer then with the Baltimore Sun. Cairns tried to persuade a classics scholar from Johns Hopkins University to testify for him, but the professor replied, “No, I will not testify in defense of such a worthless book as George Moore’s translation of Daphnis and Chloe.”

The trial procedure broke legal precedent. Previously the rule had been that expert witnesses could not testify because they would usurp the function of a jury. But Cairns was permitted to put his witnesses on the stand.

Cairns wasn’t too sure of his psychiatrist and how he would react to cross-examination by the government attorney on the question of what effect the book would have on immature adults and children. The psychiatrist handled himself very well under direct questioning, but then the prosecuting attorney at the close of his cross-examination said to the psychiatrist, “Would you recommend this book to be read by everybody?”

At this point Cairns literally held his breath waiting for the reply of the psychiatrist. His heart sank when the psychiatrist replied, “No, I would not.”

The prosecuting attorney turned triumphantly and said, “That’s all, your honor.”

Cairns simply could not leave his case in that precarious position. He said to his witness, “Well, Doctor, would you recommend that everyone read the Bible?” The psychiatrist replied, “No, I would not.”

Cairns won this case. The book ban was lifted. The result of the trial, headlined in the daily newspapers, did not go unnoticed in Washington.

Soon after this case had been decided, Secretary of the Treasury Henry Morgenthau decided something had to be done about the adverse publicity received over the years by the Treasury Department and by Customs because of disputed rulings being made on books, art and other items being imported into the country. One of the most publicized cases had involved the attempt by an importer to bring into the country copies of James Joyce’s controversial Ulysses. The book had created a tremendous stir in literary circles in Europe and among those in the United States who could get their hands on a copy. Joyce’s use of four-letter words and his then-shocking treatment of sex brought howls of protest from many. There were outcries against any importation of the book into the United States. Likewise, there was an outcry against censorship among those who regarded Joyce’s work as an outstanding work of literature, written in a style and with a realism which they said raised it to a high level of art.

Joyce’s book went on Customs’ banned list. The case was taken to court and the judge wrote a blistering opinion against censorship. The court held that the book had to be viewed as a whole, and that one could not judge it by picking out isolated passages from the text; when the book was viewed in its entirety, it was not obscene.

About this time, also, Customs found itself in hot water because an examiner refused entry for a shipment of photographs of sculptures of nude men and women. The examiner took one look at the photographs and ruled that they were pornographic. The trouble was that the pictures were photographs of sculpture in the Vatican--a point which did not seem to impress the examiner but which was noted acidly in the protest against his ruling.

This combination of events, among others, persuaded Secretary Morgenthau to look for someone who could bring the situation under reasonable control. As Cairns tells the story: “Of course, I don’t know what went on in the Treasury or why they turned to me, except that I had beaten the government in the Baltimore case. I had been writing on books for the Baltimore papers for a number of years and Eli Frank, the chief counsel of Customs, knew about my work and my interests. The story I heard was that after the chain of adverse publicity, Secretary Morgenthau called on his counsel, Herman Oliphant, and said, ‘Find me a lawyer who has read a book.’ So Oliphant called up the chief counsel of Customs and passed on the word, ‘Find a lawyer who has read a book.’ That is how I got into it.”

Before “getting into it” Cairns decided to make a trip to New York to interview those who had had a voice in banning the controversial works. He wanted to know the Customs procedures and how those involved arrived at their decisions. He decided the best starting point would be to interview one of the Customs employees engaged in opening and examining packages from overseas.

Cairns opened the interview by saying, “Tell me on what grounds you act when you refuse entry for an item.”

The clerk replied, “Well, if I see a book with a naked woman in it, a photograph, I hold it up.”

“I can understand that,” Cairns said, “but tell me about some other cases that are not so clear-cut as a book having a picture of a nude in it.”

“Well, did you ever hear of this Ulysses case?”

“Yes,” Cairns said, “I have heard of that case. Did you handle the book when it arrived?”

The man nodded. “Yes, I did. What happened was that when the book came in I admitted it. There was another shipment and I admitted it. There was a third shipment which I admitted, too. Then I began to get suspicious. Here’s a book bound in paper and it was selling for fifteen dollars. So I said to myself, it must be a dirty book. So I got my knife and cut the pages. I cut the pages and when I got to the end of the book, I saw the dirtiest words I had ever seen in my life. So I held it up.”

Cairns nodded. “Who was the book addressed to?”

“It was addressed to an actress. She came down to see me and said, ‘I want my Ulysses.’ I said, ‘Lady, I ain’t going to give it to you. It’s a dirty book.’ ‘Well,’ she said, ‘at least let me look at it.’ I looked at her and said, ‘Lady, are you married?’ She said, ‘No, I am not married.’ And then I said, ‘Well, lady, I ain’t even going to let you see it.’”

After this revealing interview, Cairns decided to work with the Treasury and Customs in an advisory capacity. A procedure was set up whereby questionable items were forwarded to him at Baltimore for his recommendation before the Bureau made any formal ruling. The procedure worked so well that it was continued through the years.

Cairns left Baltimore to join the Treasury in 1937 as the Senior Assistant General Counsel. He remained with the Treasury until December, 1942, when he came to the National Gallery in his present post. Over the years, Cairns’ work as a “censor” has become less difficult as the courts have become more liberal in their interpretations of what constitutes obscenity and what does not. Cairns now receives only about 5 to 7 per cent of the questionable imports and he does not consider them to be difficult cases.

More than 90 per cent of the questionable items are what Cairns refers to as “junk,” and “hard core” pornography. There never is any question about the hard-core pornography. It consists of filthy pictures and objects obviously manufactured with a lascivious and lewd intent. Customs examiners have learned over the years to recognize such shipments almost immediately by the wrapping of the packages, the names of the shipping companies, and the countries of origin. For a time France was the source of most of the pornographic material. Then it was Italy. Then the source shifted again back to France. Then to India. For a time Japan was the major supplier of pornography, and at present Sweden is a leader in this field.

In some cases, Cairns advised test cases so that the court might decide the issue and establish a legal precedent. One such case involved the importation of birth control items by a doctor in seeming violation of the law banning “any article whatever for the prevention of conception.” Did the statute mean such items could not be imported for medical purposes? Cairns thought it a point for the court to decide--and the decision was that the statute was not intended to exclude such imports by a medical practitioner.

Another such case involved the importation of acknowledged hard-core pornography in 1950 by Dr. Alfred C. Kinsey, the Indiana University professor whose controversial “Kinsey Report” on human sexual behavior created a stir in the late 1940s.

The Kinsey case developed when Dr. Kinsey had shipped from Europe to the Institute of Sex Research of Indiana University a case filled with pornographic books, sailors’ postcards, and photographs of males and females in the sexual act. Customs previously had banned such items with no voice raised in objection. But a nationwide interest was aroused when Collector of Customs Alden H. Baker at Indianapolis took one look at the Kinsey material and declared it “damned dirty stuff.”

Baker refused to release the shipment to Dr. Kinsey and defended his position by saying, “There is nothing scientific about it.... If you saw some of these pictures, you wouldn’t think they were scientific.” He shipped the material to Washington, where Customs officials--and Cairns--agreed with the collector that it was unadulterated pornography specifically banned by law.

Kinsey protested the material was necessary to his research and that since it was for scientific study the government had no right to withhold it from him and from his colleagues at the Institute. He issued a statement saying, “You can use the Bible or almost anything for obscene purposes. Any material you can think of can be made obscene by perverting it to erotic stimulations.... The Institute of Sex Research at Indiana University considers this issue is one that concerns all scholars the world over who need access to so-called obscene materials for scientific investigations which in the long run may contribute immeasurably to human welfare.”