Comstock Act of 1873

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
Codification
U.S.C. sections created	18 U.S.C. § 552, 18 U.S.C. § 1461, 18 U.S.C. § 1462, 18 U.S.C. § 1463, 39 U.S.C. § 3001(e)
Legislative history
Signed into law by President Ulysses S. Grant on March 3, 1873
Major amendments
Act of March 4, 1909, c. 321, 35 Stat. 1088, 1129, Tariff Act of 1930, Pub. L. 71–361, ch. 497, 46 Stat. 590 Postal Reorganization Act of 1970, Pub. L. 91-375, 84 Stat. 719 Act of January 8, 1971, Pub. L. 91-662, 84 Stat. 1973 Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, 108 Stat. 1796 Communications Decency Act of 1996, Pub. L. 104-104, 110 Stat. 56
United States Supreme Court cases
Ex parte Jackson, 96 U.S. 727 (1878) Grimm v. United States, 156 U.S. 604 (1895) Swearinger v. United States, 161 U.S. 446 (1896) Bartell v. United States, 227 U.S. 427 (1913) United States v. Limehouse 285 U.S. 424 (1932) Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962) United States v. Reidel, 402 U.S. 351 (1971) United States v. Orito, 413 U.S. 139 (1973)

The Comstock Act of 1873 refers to a series of provisions in Federal law, largely codified across title 18 of the United States Code and enacted beginning in 1873 as an extraneous rider to a postal appropriations bill, that generally criminalize the involvement of the United States Postal Service, its officers, or a common carrier in conveying obscene or crime-inciting matter.

The relevancy to abortion, something currently mentioned in the statute, albeit largely in passing, has been a point of greater contention since the Supreme Court decision in Dobbs v. Jackson Women's Health Organization (2022). While greatly amended since initial enactment, the act is widely associated with U.S. Postal Inspector and anti-vice activist Anthony Comstock, and hence State anti-vice laws may be referred to as Comstock-style or Little Comstock Acts.

Text

The majority of what is considered to be the Comstock Act is found in sections 1461 through 1463 of chapter 71, of part I, title 18 of the United States Code. The rest of chapter 71, of part I, title 18, United States Code, is comprised of the Child Protection and Obscenity Enforcement Act of 1988 and the PROTECT Act of 2003. The first of these three sections, section 1461 of title 18, United States Code, is as follows:

Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and—

Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and

Every 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 producing abortion, or for any indecent or immoral purpose; and

Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such 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 abortion may be produced, whether sealed or unsealed; and

Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and

Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing—

Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.

The punishment for violating section 1461 of title 18, United States Code, is an either an unspecified fine, a jail sentence of up to 5 years for a first offense, a jail sentence of up to 10 years for any subsequent offense, or a combination of a jail sentence and fine, as is stated therein:

"Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section or section 3001(e) of title 39 to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, or knowingly takes any such thing from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.".

There exists two elements to an offense under section 1461. First, the article must relate to that described; chiefly, indecent, obscene, or pertaining to abortion. Second, a person must knowingly mail, cause to be mailed, or remove from the mail, anything specified. The second of the three primary sections of what is known as the Comstock Act, section 1462 of title 18, United States Code, reads:

Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier or interactive computer service (as defined in section 230(e)(2) [1] of the Communications Act of 1934), for carriage in interstate or foreign commerce—

(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character[; or] (b) any obscene, lewd, lascivious, or filthy phonograph recording, electrical transcription, or other article or thing capable of producing sound[; or] (c) any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made; or

Whoever knowingly takes or receives, from such express company or other common carrier or interactive computer service (as defined in section 230(e)(2) 1 of the Communications Act of 1934) any matter or thing the carriage or importation of which is herein made unlawful—

The punishment for a violation of section 1462 of title 18, United States Code, is identical to that provided for violating section 1461. Similarly there exists two elements to an offense under this section. First, the article in question has to be of that described; in this instance, either any one of the articles already specified in section 1461 or, with respect to obscene or indecent matters, the additional articles of a 'a thing capable of producing sound' or a 'motion picture film'. Second, a person must knowingly commit any of the specified acts and use either the mail or a common carrier in connection. In terms of differences with the previous section, section 1462 deviates in that its scope expands to cover the use of a common carrier or an interactive computer service. Section 1461 only applies to the U.S. Mail, but section 1462 could cover both that and a private package delivery service such as United Parcel Service or Federal Express. The portion added to this section by the Communications Decency Act, that relating to an interactive computer service, which generally means an internet website, was ruled unconstitutional in ACLU v. Reno (1996) alongside the rest of the anti-indecency provisions of that Act.

The final Comstock provision in chapter 71, of part I, of title 18, United States Code, found at section 1463, concerns mailing any of the aforementioned on the outside of a mail piece. This offense, the one described in section 1463, only carries a jail term of up to 5 years, an unspecified fine, or both as a penalty. This is irrespective of any prior offense; so no sentence enhancement is applicable.

There is one section of the Comstock Act found in title 18, United States Code, which is outside of chapter 71. This is 18 U.S.C. § 552, relating to customs officers acting as principal to importation of obscene or indecent material, and reads as follows:

"Whoever, being an officer, agent, or employee of the United States, knowingly aids or abets any person engaged in any violation of any of the provisions of law prohibiting importing, advertising, dealing in, exhibiting, or sending or receiving by mail obscene or indecent publications or representations, or books, pamphlets, papers, writings, advertisements, circulars, prints, pictures, or drawings 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 means for procuring abortion, or other articles of indecent or immoral use or tendency, shall be fined under this title or imprisoned not more than ten years, or both.".

There are four elements to an offense thereunder this section. First, one must be either an officer, employee, agent of the United States. Second, one must knowingly aid or abet a particular offense. Third, the knowing aiding or abetting, by an officer, employee, or agent of the United States, must implicate the jurisdictional element at stake. Namely, the use of the mail. Fourth the offense must implicate the articles specified.

The last section of the Comstock Act is found at 39 U.S.C. § 3001 in subsection (e) thereof, and it declares that unsolicited mailings of contraceptives are non-mailable, unless the addressee is a manufacturer or dealer in contraceptives, a physician, a nurse, a pharmacist, a hospital, or a clinic.

Definitions and scienter

Concerning the definitions used in the Comstock Act, there are three key definitions: indecent (and its synonymously used term of immoral), obscene (and its synonymously used terms of lewd or lascivious), and knowingly.

The term indecent is defined, under section 1461 of title 18, United States Code, as including "matter of a character tending to incite arson, murder, or assassination".

The term obscene is not defined in the Comstock Act, nor much of any of U.S. obscenity law, but the Miller test provides the most current definition used by the Supreme Court of the United States when adjudicating obscenity.

For reference, under the Model Penal Code, a reference guide often used to assist in legislative drafting, the knowingly criminal intent requirement, the second most stringent beyond purposely, is defined as follows: "A person acts knowingly with respect to a material element of an offense when…he is aware that his conduct is of that nature…if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.”

Jurisprudence

Comstock Act of 1873

Ex parte Jackson (1878) was the first case brought before the Supreme Court of the United States which considered the constitutionality of the Comstock Act. While primarily pertaining to a facial challenge mounted against a Federal law barring the mailing of lottery items, the Court nonetheless made reference to the Comstock Act. In doing, the Supreme Court affirmed both the lottery circular law and the Comstock Act as being valid exercises of Congressional authority under the Postal Clause:

"The power vested in Congress 'to establish post offices and post roads' has been practically construed, since the foundation of the government, to authorize not merely the designation of the routes over which the mail shall be carried and the offices where letters and other documents shall be received to be distributed or forwarded, but the carriage of the mail and all measures necessary to secure its safe and speedy transit and the prompt delivery of its contents. The validity of legislation prescribing what should be carried, and its weight and form, and the charges to which it should be subjected, has never been questioned. What should be mailable has varied at different times, changing with the facility of transportation over the post roads. At one time, only letters, newspapers, magazines, pamphlets, and other printed matter, not exceeding eight ounces in weight, were carried; afterwards, books were added to the list; and now small packages of merchandise, not exceeding a prescribed weight, as well as books and printed matter of all kinds, are transported in the mail. The power possessed by Congress embraces the regulation of the entire postal system of the country. The right to designate what shall be carried necessarily involves the right to determine what shall be excluded.".

— Associate Justice Field

Grimm v. United States (1895), an early case concerning the Comstock Act, dealt with whether the Act outlawed mere possession of obscene or indecent materials. The Court held that the Comstock Act did not, but rather that the gist of an offense under the Act involves use of the mails in conveying such things, remarking that:

"The sufficiency of the indictment is the first question presented. It is insisted that the possession of obscene, lewd, or lascivious pictures constitutes no offense under the statute. This is undoubtedly true, and no conviction was sought for the mere possession of such pictures.".

— Associate Justice Brewer

Swearinger v. United States (1896) was yet another early case before the Supreme Court of the United States and which involved the Comstock Act. This case concerned the construction of the statute. In question was whether the phrasing of "every obscene, lewd, lascivious...article..." should be construed in a manner as having a series of multiple adjectives describe a series a distinct categories or as a series of multiple adjectives referring to one category of materials, namely those that are obscene. In its opinion, the court ruled that, for purposes of the Comstock Act, these adjective are synonyms of, not distinctions from, obscene. Therefore, offenses are on per article (not per descriptor) basis:

"The language of the statute is that 'every obscene, lewd or lascivious book or paper' is unmailable, from which it might be inferred that each of those epithets pointed out a distinct offense. But the indictment alleges that the newspaper article in question was obscene, lewd, and lascivious. If each adjective in the statute described a distinct offense, then these counts would be bad for duplicity, and the defendant's motion in arrest of judgment for that reason ought to have been sustained. We, however, prefer to regard the words 'obscene, lewd or lascivious,' used in the statute, as describing one and the same offense.".

— Associate Justice Shiras

During the case of Bartell v. United States (1913), the Supreme Court was asked to determine whether the allegations in a Comstock Act indictment require specific listing of the particular things considered to be obscene or indecent. In absence of contrary language, the Court held that particularity was not required:

"The present indictment specifically charged that the accused had knowingly violated the laws of the United States by depositing on a day named, in the post office specifically named, a letter of such indecent character as to render it unfit to be set forth in detail, enclosed in an envelop bearing a definite address. In the absence of a demand for a bill of particulars we think this description sufficiently advised the accused of the nature and cause of the accusations against him."

— Associate Justice Day

The case of United States v. Limehouse (1932) concerned the effect on statutory construction made by a 1909 amendment to the 1873 Comstock Act. The Supreme Court held that in addition to obscene and indecent matters, the Comstock Act prohibited a third category: the filthy. However, Associate Justice Louis Brandeis nevertheless acknowledged that the distinction was rather trivial.

Manual Enterprises v. Day (1962) was a Supreme Court case, decided shortly after Roth v. United States (1957), which dealt with whether photographs of nude or near-nude male models was obscene. The Court ruled it was not.

In two 1970s cases involving First and Fourth Amendment challenges to the Comstock Act, the Supreme Court stated, once again, as it had earlier, that the Comstock Act does not penalize possession of obscene materials, and further that there exists no right to convey obscene materials, and that the Comstock Act is a valid exercise of postal power.

Related issues

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 New York Comstock-style 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 Act, 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 deemed press materials related homosexuality as not being obscene.

Many Comstock-style 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 Learned Hand, a circuit judge of the United States Court of Appeals for the Second Circuit, ruled that the pamphlet's main purpose was to "promote understanding".

Contraceptives

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 Act. 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 a 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-style laws in Connecticut. However, Griswold only applied to marital relationships. Eisenstadt v. Baird (1972) extended its holding to unmarried persons as well.

Current Status

Some Comstock-style laws remain in effect but many have been modified over time and portions of these laws have been declared unconstitutional. For example, the restrictions on birth control in various Comstock-style laws were ruled unconstitutional by the United States Supreme Court in Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972).

In 1971, the U.S. Congress removed the restrictions on contraception but let the rest of the Comstock Act stand. After the June 2022 decision in Dobbs v. Jackson Women's Health Organization, the enforceability of the Comstock Act became the subject of legal dispute. 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.

The Comstock Act, at least as currently enacted, has been considered by some scholars to be unconstitutionality vague. The strongest case for this argument stems from the non-exclusive definition used in the statute for the term indecent, in addition to its use of other sweeping descriptors not seen in other obscenity statutes. Another point of scholarly contention is whether, in consideration of the motives behind enacting it, the Comstock Act could survive legal challenges casting it as discriminatory. The underlying Congressional authority for enacting the Comstock Act, the Postal Clause, is not as contended.

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

Historical Background

General

The Comstock Act refers to a set of federal laws passed by the United States Congress under the Grant administration along with related state laws. The "parent" act (Sec. 211 of a postal appropriations bill) was enacted 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. The currently revised statute only pertains to obscenity, crime-inciting matter, or abortion.

A similar 1909 federal act (in Sec. 245 thereof) 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 Act. 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 statute (in Sect. 312 thereof) made it illegal, 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.

In a 1919 issue of the Journal of Criminal Law & Criminology, 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".

Objectives and intent

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.

Comstock-style 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 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.

Legislative context

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, which would bear his namesake.

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. The use of appropriations legislation to enact extraneous measures is barred by current Congressional rules, but was not in Comstock's time.

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 many renditions of Comstock-style 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.

Public 0pinion

Support

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

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
• Barney Rosset
• Grove Press
• Birth Control
• Griswold v. Connecticut

Further Reading

• 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.

• 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 29 February 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.