Cairns assumed the role of censor because of a curious chain of events, which began when he successfully opposed government censorship banning George Moore’s translation of Daphnis and Chloe—a book which shocked the sensibilities of many people, including the Customs collector who read it and ordered it banned.
A Baltimore book dealer had imported Moore’s translation with high hopes for a large and lucrative sale in Baltimore and in other cities. But Customs ruled the book was obscene under Section 305 of the Tariff Act of 1930. This act says: “(a) Prohibition of importation—all persons are prohibited from importing into the United States from any foreign country any book, pamphlet, paper, writing, advertising, 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.... No such article, whether imported separately or contained in packages with other goods entitled to entry, shall be admitted to entry.... Upon the appearance of any such book or matter at any Customs office, the same shall be seized and held by the Collector to await the judgment of the District Court as hereinafter provided; and no protest shall be taken to the United States Customs Court from the decision of the Collector.”
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.