Comstock laws

Comstock Act of 1873

Long title	Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use
Nicknames	Comstock Act of 1873
Enacted by	the 43rd Congress United States Congress
Effective	1873
Citations
Public law	18 U.S.C. Chapter 71, §§ 1460–1470
Legislative history
Signed into law by President Ulysses S. Grant on March 3, 1873

The Comstock Act of 1873 and 24 state-level "Little Comstocks" criminalized the use of the United States Postal Service to send obscenity, contraceptives, abortifacients, sex toys, personal letters with any sexual content or information, or any information regarding the above. The Act made it illegal (up to 5 years of hard labor) to sell, lend, or give away any "obscene" publication or article used for contraception or abortion. The Act is codified at 18 U.S.C. Chapter 71, §§ 1460–1470 with the most essential material in §1461 and has been amended five times.

The 43rd United States Congress passed the Comstock Act[s] on March 2, 1873 as the Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use and President Ulysses S. Grant signed it into law on March 3, 1873. The act is associated with U.S. Postal Inspector and anti-vice activist Anthony Comstock.

In the 21st century, judges and lawmakers cite the Comstock Act as a possible justification for criminalizing the mailing of abortion medication. In 2022, the U.S. Department of Justice argued that mailing abortion drugs does not violate the Comstock Act. In 2023, a federal judge mentioned the Comstock Act in a ruling about the medication abortion drug mifepristone (Judge Matthew J. Kacsmaryk, Alliance for Hippocratic Medicine et al v. U.S. Food and Drug Administration et al, (2023). The United States appealed the case and it is currently being decided by the United States Supreme Court. In 2024, 20 Republican attorneys general relied upon the Comstock Act when they wrote to Walgreens and CVS objecting against the distribution of abortion pills. In 2024, Sen. Tina Smith (D-Minn.) suggested a plan to repeal the Comstock Act.

Some contemporary American judges and lawmakers cite the Comstock Act as a possible justification for criminalizing the mailing of abortion medication while others deny that justification and/or call for the Comstock Act's repeal.

The symbol of Comstock's New York Society for the Suppression of Vice.

Historical Background

The Comstock laws are a set of federal acts passed by the United States Congress under the Grant administration along with related state laws. The "parent" act (Sect. 211) was passed on March 3, 1873, as the Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use. This Act criminalized any use of the U.S. Postal Service to send any of the following items: obscenity, contraceptives, abortifacients, sex toys, personal letters with any sexual content or information, or any information regarding the above items.

A similar federal act (Sect. 245) of 1909 applied to delivery by interstate "express" or any other common carrier (such as railroad), rather than delivery by the U.S. Post Office. In addition to these federal laws, about half of the states enacted laws related to the federal Comstock laws. These state laws are considered by women's rights activist Mary Dennett to also be "Comstock laws". The laws were named after their chief proponent, U.S. Postal Inspector and anti-vice activist Anthony Comstock. Comstock received a commission from the Postmaster General to serve as a special agent for the U.S. Post Office Department.

In Washington, D.C., where the federal government had direct jurisdiction, another Comstock act (Sect. 312) also made it illegal (punishable by up to five years at hard labor), to sell, lend, or give away any "obscene" publication, or article used for contraception or abortion. Section 305 of the Tariff Act of 1922 forbade the importation of any contraceptive information or means.

Numerous failed attempts were made to repeal or modify these laws, and many of them (or portions of them) were declared unconstitutional. In a 1919 issue of the Journal of Criminal Law & Criminology, Judge J. C. Ruppenthal, after reviewing the various laws (especially state laws) called the set of acts "haphazard and capricious" and lacking "any clear, broad, well-defined principle or purpose".

Enforcement status

The restrictions on birth control in the Comstock laws were effectively rendered null and void by Supreme Court decisions Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972). Furthermore Congress removed the restrictions on contraception in 1971 but let the rest of the Comstock law stand.

After the June 2022 decision in Dobbs v. Jackson Women's Health Organization, the enforceability of the Comstock laws became the subject of legal disputes. On April 7, 2023, Matthew J. Kacsmaryk, a district court judge in Texas ruled in the case of Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration that the Comstock Act made mailing of abortifacients illegal, conflicting with a ruling by district court judge Thomas O. Rice in Washington who issued an opposite ruling on the very same day. The Supreme Court heard the appeal on March 26, 2024.

Text

The original Section 211 of the 1873 Comstock Act (considered to be the "parent" of all the Comstock laws) criminalizes the mailing of two types of material: (1) printed material and physical objects deemed to be "indecent" and "immoral" and (2) printed material, physical objects, substances, medicine) related to birth control, abortion, and reproductive health. The law specifically criminalizes the mailing of speech: communication regarding information about or access to birth control, abortion, and reproductive health.

Text relevant to "decency:

"Every obscene, lewd, or lascivious, and every filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character" and "every article or thing designed, adapted, or intended for preventing conception or producing abortion, or for any indecent or immoral use...

Text relevant to birth control, abortion, and reproductive health:

"[E]very article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for preventing conception or producing abortion, or for any indecent or immoral purpose...

Text relevant to communication regarding exchanging information about or access to birth control, abortion, and reproductive health:

"[E]very written or printed card, letter, circular, book, pamphlet advertisement, or notice of any kind giving information directly or indirectly, where, or how, or of whom, or by what means any of the hereinbefore-mentioned matters, articles or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed or how or by what means conception may be prevented or abortion may be produced... whether sealed or unsealed; and every letter, packet, or package, or other mail matter containing"

The Comstock Act replaced sections of statutes related to the Post Office ("An Act to revise, consolidate, and amend the Statutes relating to the Post-office Department"). Congress sought to intensify punishment and specify that punishment included hard labor.

Although the law for the District of Columbia (sect. 312 of the Federal Criminal Code) is similar to the federal Comstock Act (applying to the 50 states), the DC law specified that forbidden items must be only for one's own use (not distributed to others) and those found guilty "shall be imprisoned at hard labor in the penitentiary for not less than six months nor more than five years for each offense, or fined not those less than one hundred dollars nor more than two thousand dollars, with costs of court."

Objective of the laws

The Comstock laws targeted pornography, contraceptive equipment, access to abortion, educational materials such as descriptions of contraceptive methods, other reproductive health-related materials, and access to/advertisements of people with information or providing services with regards to birth control, abortion, and other reproductive health-related services. Of particular note were advertisements for abortifacients found in penny papers, which offered pills to women as treatment for "obstruction of their monthly periods." The context for taking of "period pills" or herbal drinks is the wider history of birth control.

Anthony Comstock's ideas of what is "obscene, lewd, or lascivious" were quite broad. During his time of greatest power, some anatomy textbooks were prohibited from being sent to medical students by the United States Postal Service.According to Mary Ware Dennett, Comstock defined "perverts" as those using contraceptives outside of marriage. Thus, the law should not "allow any one at all to secure them or know anything about them." In her 1926 work, Birth Control Laws: Shall We Keep Them, Change Them, or Abolish Them, Dennett claimed that Anthony Comstock had no intention of penalizing birth control information for married cis people. Comstock believed that contraceptives (and information about them) would be used (or misused) by young people for premarital sex. According to Dennet, Comstock's reasoning seems to have been that if one banned all contraceptive information, etc., the morals of youth were less likely to be corrupted.

Yet the federal and state "Comstock" laws significantly penalized birth control information for all uses. In 1965 case, the Supreme Court overturned Connecticut's 1879 "Little Comstock" that forbade the use of contraceptives by cis married couples.

Definition of obscenity

Major parts of the Comstock Acts hinge on definitions, particularly of obscenity. Though the courts originally adopted the British Hicklin test, in 1957 an American test was put into place in Roth v. United States, in which it was determined that obscenity was material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards," and was, "utterly without redeeming social importance."

Origins

According to Paul R. Abramson, the widespread availability of pornography during the American Civil War (1861–1865) gave rise to an anti-pornography movement, culminating in the passage of the Comstock Act in 1873, but which also dealt with birth control and abortion issues. A major supporter and active persecutor for the moral purposes of the Comstock laws was the New York Society for the Suppression of Vice, led by Comstock.

YMCA

In February 1866, the Young Men's Christian Association (YMCA) of New York's executive committee privately distributed a report that was written by Cephas Brainerd and Robert McBurney entitled, "A Memorandum Respecting New-York as a Field for Moral and Christian Effort Among Young Men." This memorandum linked the main message of the YMCA to facts and figures that were drawn from the census, tax data, and licensing reports. All of this data was used to support the idea that many of the younger, more unsupervised members of the society had more than enough free time in the evenings to spend in billiard saloons, gambling halls, porter houses, and houses of prostitution and assignation.

The 1866 memorandum supported a plan to construct a centrally located building to better serve the younger men of New York. Not only was the building to support the spiritual, mental, and social well-being of the young men, it was also suggested to benefit their physical condition. However, the memorandum was also used as a "call to action" to investigate whether or not a law was in place to reprimand and confiscate "obscene" literature. After conferring with a district attorney, a committee was organized to write up a bill to be pushed through the New York State legislature. In 1868, the bill was passed; however, it was not as strong as the association would have liked it to be. After the passing of the bill, the YMCA appointed a committee to oversee the enforcement of the law. This law included the important power of search and seizure which authorized magistrates to issue warrants that allowed police officers "to search for, seize and take possession of such obscene and indecent books, papers, articles and things" and hand them over to the district attorney. If the indicted party ended up being found guilty, the materials that were confiscated in the raid were destroyed.

Anthony Comstock

Anthony Comstock stated that he was determined to act the part of a good citizen, meaning that he had every intention of upholding the law. He started off by beginning a campaign against the saloons in his New York neighborhood of Brooklyn.

The biggest contributor to igniting Comstock's mission to rid of any and all obscene material was when one of his dear friends died. Comstock blamed his death on him being "led astray and corrupted and diseased". As for a person to blame, Comstock laid all of it on Charles Conroy, who had sold his friend "erotic materials" from a basement on Warren Street. After this incident, he continued the crusade throughout his neighborhood and while doing so, kept a ledger that had a record of every arrest he had made.

Comstock became linked with the YMCA shortly after writing a financial request for funding of his efforts. When YMCA President Morris Jesup became aware of the request he visited Comstock and granted the requested funds. in addition to providing the money to support his work, Jesup paid Comstock a bonus. Comstock was invited to speak before the YMCA's Committee on Obscene Literature (later renamed the Committee for Suppression of Vice) to present how he used the funds the organization had provided. Comstock was eventually hired by the association to help fight for the suppression of vice.

The motivation for Comstock's support of Federal legislation was "The Beecher-Tilton Scandal Case" and the publicity for the case provided by Victoria Woodhull and Tennessee Claflin; writers for Woodhull & Claflin's Weekly. After Woodhull's acquittal, Comstock began to see weaknesses in the 1872 law. The federal statute did not include newspapers, nor did it specify that birth control information and appliances were "obscene". Comstock made it a goal to include better language in a new law (later known as the Comstock Law).

To do this, Comstock drafted a new federal bill and with the sponsorship of Representative Clinton L. Merriam, he met with members of the House and illustrated his concern by showing them obscene materials, obtained via the gaps in the existing legislation. Comstock used a connection with Justice William Strong to pass the bill on to William Windom, a senator from Minnesota, with the request that he take the bill to the floor of the Senate. While the bill was being revised, a provision with similar effect of the bill was attached in a federal appropriations bill and was authorized by Congress. The legislation enabled a new special agent in the United States Post Office. This agent held the power to confiscate immoral materials sent in the mail and arrest those sending it.

Although Comstock was awarded the position of special agent, the Committee for the Suppression of Vice requested that he not be given a government salary. In the spring of 1873, the committee became separate from the YMCA, as New York gave them a charter as the New York Society for the Suppression of Vice. While the Comstock Law originally authorized police assistance to the group in censoring materials and gave half of the fines collected under this law, the rewards were removed a month later. By preventing Comstock from receiving a federal salary, as well as any monetary rewards from the state, the organization's directors attempted to prevent claims of self-interested motives. They also tried to ensure that Comstock was dependent on their donations.

Comstock derived his full-time salary from the vice society. At the same time, he was able to hold a federal commission that allowed him to secure warrants for arrests and take and destroy publications and other materials. Therefore, New York, as well as the federal government, gave him most of the responsibility to implement moral censorship. They entrusted that responsibility to Comstock for forty-two years until his death in 1915. Over that period of time, he filled the two positions, one in the Post Office and the other in the New York vice society.

Extended works of Comstock along the lines of the Comstock laws include a petition from the Committee for the Suppression of Vice to include obscene written works that were enclosed in a sealed envelope, an item that was not covered in the renditions of the Comstock Laws, as an item to convict for a punishable offence. Other works that he tried to enclose under the range of the laws that used his namesake include international art pieces that depicted scantily-clad women, textbooks for medical students, and other items that seem to steer away from the original theme of the laws. These misguided efforts left some of his original supporters to doubt his intentions. Comstock's excision of authoritative power as a special agent Postal Inspector included over 3,600 people prosecuted and the destruction of over 160 tons (150,000 kg) of literature found to be obscene.

Judicial views

Obscenity

See also: United States obscenity law

In 1957, Samuel Roth, who ran a literary business in New York City, was charged with distributing "obscene, lewd, lascivious or filthy" materials through the mail, advertising and selling a publication called American Aphrodite ("A Quarterly for the Fancy-Free"). The publication contained literary erotica and nude photography.

The Comstock Law was terminated in 1957, just before the Roth v. United States court case, but it defined obscenity as anything that appealed to the prurient interest of the consumer. In a similar case, Alberts v. California, David Alberts ran a mail-order business from Los Angeles and was convicted under a Californian statute for publishing pictures of "nude and scantily-clad women". The Supreme Court confirmed the conviction and affirmed the Roth test.

Under the Comstock laws, postal inspectors can bar "obscene" content from the mails at any time, thus having a huge impact on publishers of magazines. In One, Inc. v. Olesen (1958), as a follow-on to Roth, the Supreme Court granted free press rights around homosexuality.

The Comstock laws banned distribution of sex education information, based on the premise that it was obscene and led to promiscuous behavior Mary Ware Dennett was fined $300 in 1928, for distributing a pamphlet containing sex education material. The American Civil Liberties Union (ACLU), led by Morris Ernst, appealed her conviction and won a reversal, in which judge Learned Hand ruled that the pamphlet's main purpose was to "promote understanding".

Contraception

Margaret Sanger was charged in 1915 for her work The Woman Rebel. Sanger circulated this work through the U.S. postal service, effectively violating the Comstock Law. On appeal, her conviction was reversed on the grounds that contraceptive devices could legally be promoted for the cure and prevention of disease. Her husband, the architect William Sanger, was similarly charged earlier in the year under the New York law against disseminating contraceptive information.

The prohibition of devices advertised for the explicit purpose of birth control was not overturned for another eighteen years. During World War I, U.S. servicemen were the only members of the Allied forces sent overseas without condoms.

In 1932, Sanger arranged for a shipment of diaphragms to be mailed from Japan to a sympathetic doctor in New York City. When U.S. customs confiscated the package as illegal contraceptive devices, Sanger helped file a lawsuit. In 1936, a federal appeals court ruled in United States v. One Package of Japanese Pessaries that the federal government could not interfere with doctors providing contraception to their patients.

Griswold v. Connecticut (1965) struck down one of the remaining contraception Comstock laws in Connecticut and Massachusetts. However, Griswold only applied to marital relationships. Eisenstadt v. Baird (1972) extended its holding to unmarried persons as well.

In favor of the laws

Obscenity arguments

As the chief proponent of the law, many of Comstock's justifications revolved around the effects that all of the obscene literature would have on children. He argued that the corruption in the schools and in the home were because of all of the obscene literature that the youth had easy access to. He also argued that the vast amounts of "obscenity" would cause for the sanctity of marriage to be corrupted along with the power of the church. Comstock mainly focused on voicing his concerns to families of privilege; this is how he gained a majority of his support.

Clinton L. Merrian, who introduced the bill to the House of Representatives, played on the idea that obscenity was a direct threat to manhood and that in order to protect the children, obscene materials needed to be confiscated.

Contraception arguments

The Comstock laws, in an alleged "haphazard and capricious" manner, restricted contraception. It was argued that this would help prevent "illicit" sexual relations between unmarried persons since without contraception, the unmarried would be deterred from having sex due to the possibility of undesired pregnancy. When the Birth Control Movement in the mid-1920s was attempting to get Congress to eliminate birth control restrictions from the federal Comstock laws, Mary Dennett (the author of "Birth Control Laws") interviewed a (non-typical) congressman who strongly supported retention of the birth control restrictions in the Comstock laws. He put it this way (avoiding any use of the words "sex" or "pregnancy"): "Think how it would be that night, when the young girl goes out with the boy, and she can't help thinking, what difference will it make if nothing ever shows? And then she will forget all about character, and will let herself go, whereas if she was afraid of the practical results, she wouldn't. Yes, there are thousands of girls that are held back just that way."

To this, Mary Dennett asked if he did not know that there was such a lot of contraceptive knowledge in circulation—and that most of it was bad knowledge too—that the number of girls that could be protected by their ignorance was diminishing every hour, and that there was absolutely no effort at enforcement of the laws? He said people argued that way about enforcing the prohibition laws, but he thought it (Comstock laws re contraception) ought to be enforced and could be.

Regarding older, never-married women having sex with contraception, the same congressman talking about a group of women clerks, whose housing was visible through his office window: "a lot of them are confirmed old maids too, but I wouldn't trust what would happen to them, if they all knew they could do what they pleased and no one would be the wiser." He was thus implying that the Comstock laws were good because they not only deterred young girls from having premarital sex but also deterred "old maids" (derogatory term for older, never-married women) from sexual relations.

Father Charles Coughlin, a famous "radio priest", argued before a congressional committee in 1934 that even use of contraception by a married couple was wrong. He characterized such non-productive sex as "legalized prostitution." There was heckling from the audience, and one woman called out to Coughlin, "You're ridiculous."

Opposition to the laws

1878 repeal attempt

Three years after the enactment of the federal law, a petition was circulated by the National Liberal League for its repeal in 1876, garnering between 40,000 and 70,000 signatures. Although the press of the country favored repeal, their efforts were impeded when Comstock showed samples of pornographic material to congressmen who were serving on the same committee which the repeal act had been referred to. Comstock claimed that the pamphlets he had shared, a "collection of smutty circulars describing sex depravity", had been distributed by mail to youths and other persons.

In March 1879, the National Defense Association submitted a letter of affidavits to Samuel Sullivan Cox, a Democratic New York State Representative, for review with the Committee on Post Office and Post Roads. The National Defense Association had been established shortly after the Comstock Laws were enacted in order to combat the resulting loss of civil liberties and restrictions on freedom of the press, and to preserve access to works of art or literature which were deemed obscene under the Comstock Act.

The letter of affidavits had been sent in support of the petition from the National Liberal League. Comstock dismissed the petition, alleging that the list was made up of forged signatures and false names. He also complained that "the public press throughout the country" had supported the petitioners and their movement.

Birth control movement failures

After this failure to repeal, there was no concerted effort to change the laws until the start of the birth control movement in the United States in 1914 led by Margaret Sanger. Between 1917 and 1925 Bills were introduced in California (1917), New York (1917, 1921,3,4,5), Connecticut (1923, 1925), and New Jersey (1925) to make the anti-birth control parts of the state laws less restrictive. In both California and Connecticut, the anti-birth control part of the law would be simply eliminated which in Connecticut would mean that its outlawing of contraception would be revoked. All these state attempts at change failed to come to a vote so no change happened.

There were also failed attempts to eliminate the restrictions on birth control from the federal laws, the first starting in 1919 where the bill's supposed sponsor failed to introduce the bill. In 1923 a bill was sent to the Judiciary Committee (of Congress). While it was thought that the majority of this committee favored the bill, they evaded voting on it. There were also more attempts at change in the 1920s.

Eugenics argument

In response to the argument that facilitating contraception would encourage promiscuity, a rebuttal was that if such persons used contraception, there would tend to be fewer people like them since fewer people would inherit inclinations towards promiscuity.

Free Love

The Free Love Movement in Victorian America was one group that made sustained attempts to repeal the Comstock Laws and discredit anything related to the anti-vice movement. This movement despised the law because they believed it embodied the sexual oppression of women. The free-lovers argued that neither the church nor the state had the right to regulate an individual's sexual relations and that women were sexually enslaved by the institution of marriage. This made the free-lovers the number one target of Comstock and his crusade against obscenity.

Comstock actively targeted individuals associated with the Free Love Movement, particularly those involved in advocating for birth control and the rejection of traditional marriage. He used the Comstock Act of 1873, which criminalized the distribution of obscene materials through the mail, as a tool to prosecute and censor those he deemed promoting immoral or indecent ideas. One of Comstock's notable targets was Victoria Woodhull, a prominent figure in the Free Love Movement and an advocate for women's rights. Woodhull and her sister, Tennessee Claflin, published a newspaper called "Woodhull & Claflin's Weekly" that promoted radical ideas about sexuality and challenged traditional norms. Comstock had Woodhull arrested and charged with obscenity for publishing information about contraception.

See also

• Banned in Boston
• Emma Goldman
• Free Speech League
• Ida Craddock
• Social hygiene movement
• Obscenity trial of Ulysses in The Little Review
• The Truth Seeker Obscenity Prosecution
• SESTA/FOSTA
• Barney Rosset
• Grove Press
• Birth Control
• Griswold v. Connecticut

References

• Dennett, Mary Ware Birth Control Laws: Shall we keep them, change them, or abolish them New York, Grafton Press, 1926. Full text [1]
• Ruppenthal, J. C. Criminal Statutes on Birth Control in Journal of Criminal Law and Criminology, vol. 10, issue 1, article 5, 1919. [2]
• United States, Congress, "An Act to Revise, Consolidate, and Amend the Statutes Relating to the Post-Office Department." An Act to Revise, Consolidate, and Amend the Statutes Relating to the Post-Office Department, pp. 302.

Further reading

• Text of Comstock Law of 1873
• Beisel, Nicola. Imperiled Innocents: Anthony Comstock and Family Reproduction in Victorian America. Princeton U. Press, 1997.
• Boyer, Paul S. Purity in Print: Censorship from the Gilded Age to the Computer Age. (1968) Revised ed. 2002.
• Friedman, Andrea. Prurient Interests: Gender, Democracy, and Obscenity in New York City, 1909–1945. Columbia U. Pr., 2000.
• Gurstein, Rochelle. The Repeal of Reticence: A History of America's Cultural and Legal Struggles over Free Speech, Obscenity, Sexual Liberation, and Modern Art. Hill & Wang, 1996.
• Hilliard, Robert L. and Keith, Michael C. Dirty Discourse: Sex and Indecency in American Radio. Iowa State U. Press, 2003.
• Kobylka, Joseph F. The Politics of Obscenity: Group Litigation in a Time of Legal Change. Greenwood, 1991.
• Wheeler, Leigh Ann. Against Obscenity: Reform and the Politics of Womanhood in America, 1873–1935. Johns Hopkins U. Press, 2004.
• Werbel, Amy. Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock.Columbia University Press, 2018.
• "Statement of Professor Frederick Schauer" (PDF). Archived from the original (PDF) on February 29, 2008., Hearing on Obscenity Prosecution and the Constitution, Subcommittee on the Constitution, Civil Rights, and Property Rights Committee on the Judiciary United States Senate March 16, 2005 for legal history.

External links

• The Zombie Law Trump Wants to Use to Ban Abortion Nationwide