On March 3, 1873, Congress passed the federal act, “Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use” which later became known as the Comstock Law. The Act empowered the U.S. Postal Service to refuse to handle through the mail erotica; contraceptive medications or devices; abortifacients; sexual implements, such as the ones used in masturbation; contraceptive information; and advertisements for contraception, abortion, or sexual implements. It made the use of the post for those purposes illegal and punishable.
In places like Washington D.C., where the federal government had direct jurisdiction, the act made it a misdemeanor, punishable by fine and imprisonment, to sell, give away, or have in possession any “obscene” publication. Half of the states passed similar anti-obscenity statutes that also banned possession and sale of obscene materials, including contraceptives.
The law was named after its chief proponent, Anthony Comstock. Due to his own personal enforcement of the law during its early days, Comstock received a commission from the postmaster general to serve as a special agent for the U.S. Postal Services.
Text of the federal law
The text of the federal bill reads:
Be it enacted... That whoever, within the District of Columbia or any of the Territories of the United States...shall sell...or shall offer to sell, or to lend, or to give away, or in any manner to exhibit, or shall otherwise publish or offer to publish in any manner, or shall have in his possession, for any such purpose or purposes, an 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 of an immoral nature, or any drug or medicine, or any article whatever, for the prevention of conception, or for causing unlawful abortion, or shall advertise the same for sale, or shall write or print, or cause to be written or printed, any card, circular, book, pamphlet, advertisement, or notice of any kind, stating when, where, how, or of whom, or by what means, any of the articles in this section…can be purchased or obtained, or shall manufacture, draw, or print, or in any wise make any of such articles, shall be deemed guilty of a misdemeanor, and on conviction thereof in any court of the United States...he 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 less than one hundred dollars nor more than two thousand dollars, with costs of court.
Objective of the law
The Comstock Act targeted pornography, contraceptive equipment, and many educational materials such as descriptions of contraceptive methods and other reproductive health-related materials.
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.
Definition of obscenity
The Comstock Act clearly hinges on definitions, particularly of obscenity. Though the courts originally adopted the British Hicklin test, 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."
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. The main support and active persecutor for the moral purposes of the Comstock laws was the New York Society for the Suppression of Vice, led by Comstock.
In February of 1866, the Young Men's Christian Association of New York's (or Y.M.C.A.) Executive Committee privately distributed a report that was written by Cephas Brainerd and Robert McBurney that was 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 Y.M.C.A. to facts and figures that were drawn from the census, tax data, and licensing reports. All of this data was used support the fact 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 hells, 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 the 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 "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 Y.M.C.A 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 oscene and indecent books, paers, 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.
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 Brooklyn, N.Y. neighborhood.
The biggest contributor to igniting Comstock's mission to rid of any and all obscene material was when one of his dear friends passed away. Comstock blamed his death on him being "led astray and corrupted and diseased" which suggests that the friend contracted a venereal disease that was connected to masturbation, nervous disability, and susceptibility to illness. 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, continued on with the crusade all throughout his neighborhood and in doing so, he kept a ledger that had a record of every single arrest he had made.
Comstock became linked with the Y.M.C.A. shortly after writing a financial request to Robert McBurney to continue with his efforts. Once the current President, Morris Jesup, became aware of the letter he immediately went to see Comstock and allocated the funds towards his efforts. On top of the money allocated for Comstock's efforts, Jesup also gave him a bonus for his efforts.
Comstock was invited to speak before the Y.M.C.A.'s Committee on Obscene Literature, which was later renamed the Suppression of Vice, and present how was used the funds allocated for him. Comstock was hired by the association to help them fight for the suppression of such vices.
The event that catapulted Comstock's urge to get a bill passed through Congress was "The Beecher-Tilton Scandal Case" and the publicity displayed towards the case by Victoria Woodhull and Tennessee Claflin in Woodhull & Claflin's Weekly. After Woodhull's acquittal, Comstock was reminded of one of the weaknesses of the 1872 law. The federal statute did not include newspapers, nor did it specify that birth control information and appliances were "obscene". It was Comstock's mission to somehow include these measures 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 proved his point by exhibiting obscene materials. Through past connections, Comstock got Justice William Strong to introduce the bill to William Windom, a senator from Minnesota to take the bill to the floor of the Senate. While the bill was undergoing further revision, a provision was coordinated in a federal appropriations bill. This provision was authorized by Congress, which essentially created a new position—special agent in the United States Post Office. This position held the power to confiscate immoral materials sent in the mail and arrest those that were sending it.
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. In this case, Comstock was upheld and the obscenity test refined in Roth v. United States. In a similar case, Alberts v. California, David Alberts ran a mail-order business from Los Angeles and was convicted under a California statute for publishing pictures of "nude and scantily-clad women." The Supreme Court confirmed the conviction and affirmed the Roth test.
Publications addressing homosexuality were deemed obscene under the Comstock Act until 1958. In One, Inc. v. Olesen, as a follow-on to Roth v. United States, 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".
In 1915, architect William Sanger was charged under the New York law against disseminating contraceptive information. In 1918, his wife Margaret Sanger was similarly charged. On appeal, her conviction was reversed on the grounds that contraceptive devices could legally be promoted for the cure and prevention of disease.
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.
In 1965, the U.S. Supreme Court case Griswold v. Connecticut 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.
For the law
As the chief proprietor 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.
Opposing the law
The Free Love Movement was the only group that had any 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 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.
- Banned in Boston
- Birth control movement in the United States
- Free Speech League
- New York Society for the Suppression of Vice
- Social hygiene movement
- Ida Craddock
- Emma Goldman
- Horowitz, Helen Lefkowitz. Rereading Sex. New York: Random House, 2002.
- Beisel, Nicola. Imperiled Innocents. New Jersey: Princeton University Press, 1997.
- The Comstock Act 17 Stat. 598
- Paul D. Buchanan. The American Women's Rights Movement. p. 75.
- "ROTH v. UNITED STATES," The Oyez Project at IIT Chicago-Kent College of Law, accessed April 16, 2014, http://www.oyez.org/cases/1950-1959/1956/1956_582.
- Paul R. Abramson (2002). With Pleasure: Thoughts on the Nature of Human Sexuality. Oxford University Press US. p. 180. ISBN 0195146093.
- Roth v. United States, 354 U.S. 476 (1957).
- Paul, James C.N. and Murray L. Schwartz (Dec 1957). "Obscenity in the Mails: A Comment on Some Problems of Federal Censorship". University of Pennsylvania Law Review 106 (2): 214–253.
- Murdoch, Joyce and Deb Price (2001). Courting Justice: Gay Men and Lesbians v. the Supreme Court. New York: Basic Books. p. 47. ISBN 978-0-456-01513-1.
- Walker, Samuel (1990). In Defense of American Liberties: A History of the ACLU. Oxford University Press. p. 85. ISBN 0-19-504539-4.
- Staff Reporters (September 11, 1915). "Disorder in Court as Sanger is Fined: Justices Order Room Cleared When Socialists and Anarchists Hoot Verdict" (pdf). The New York Times: 7.
- "Biographical Note". The Margaret Sanger Papers. Sophia Smith Collection, Smith College, Northampton, Mass. 1995. Retrieved 2006-10-21.
- Griswold v. Connecticut, 381 U.S. 479 (1965).
- 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.
- Statement of Professor Frederick Schauer, 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.