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Comstock Act of 1873

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The Comstock Act of 1873 refers to a series of current provisions in Federal law, that generally criminalize the involvement of the United States Postal Service, its officers, or a common carrier in conveying obscene matter,[1] crime-inciting matter, or certain abortion-related matter.[2] The Comstock Act is largely codified across title 18 of the United States Code and was enacted beginning in 1872 with the attachment of an off-topic rider to a postal service reconsolidation bill. Amended multiple times since initial enactment, with it amended most recently in 1996, the act is nonetheless often associated with U.S. Postal Inspector and anti-vice activist Anthony Comstock.[3]

Comstock Act of 1873
Great Seal of the United States
Long titleAct for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use
NicknamesComstock Act of 1873
Enacted bythe 43rd United States Congress
Codification
Acts amendedSec. 148 of an Act to revise, consolidate, and amend the Statutes relating to the Post-office Department
U.S.C. sections created18 U.S.C. § 552, 18 U.S.C. § 1462, 18 U.S.C. § 1463, 19 U.S.C. § 1305, 39 U.S.C. § 3001(e)
U.S.C. sections amended18 U.S.C. § 1461
Legislative history
  • Signed into law by President Ulysses S. Grant on March 3, 1873
Major amendments
United States Supreme Court cases

The law was applied broadly for much of its history, before the scope of enforcement narrowed after various court rulings, and modern enforcement is primarily focused on prosecuting child pornography (with the most recent conviction under the Act being made in 2021).[4][5] In spite of its contentious nature, something that has throughout the years spawned a variety of legal challenges on enumerated powers doctrine, vagueness doctrine, First Amendment grounds, etc., the Comstock Act has thus far been widely upheld as constitutional.[6][7][8][9][10][11][12][13][14]

The relevancy to abortion, currently mentioned in the statute, has recently become a point of debate following the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization (2022).[15] The law does not criminalize obscenity, crime-inciting-or-soliciting matter, or abortion directly but it criminalizes the use of the mail, a common carrier, or an interactive computer service in the conveyance of these materials.

Text[edit]

Preface[edit]

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, consists of various provisions from the Child Protection and Obscenity Enforcement Act of 1988[note 1] and the PROTECT Act of 2003.[note 2]

18 U.S.C. § 1461[edit]

The first of the three sections of the Comstock Act which are contained under chapter 71 of part I, title 18, United States Code, is section 1461. This is the initial Comstock Act, as currently amended, and it was first enacted as an off-topic rider under Sec. 148 of an Act to revise, consolidate, and amend the Statutes relating to the Post-office Department.[16] The punishment for violating section 1461 is 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 a fine, as is stated in its text.[17]

There exists two elements to an offense under section 1461. First, it must relate to that described; chiefly, either obscene or pertaining to abortion. Second, a person must knowingly mail, cause to be mailed, or remove from the mail, anything specified. The following is a brief summary of the matters covered:

  1. An obscene article.[note 3]
  2. An article designed, adapted, or intended for obscene or abortion-causing purposes.[note 4]
  3. An article advertised or otherwise described in a manner calculated to lead to its application for obscene or abortion-causing purposes.[note 5]
  4. Mail matter giving information as to who, what, where, or how an article (either designed, adapted, intended for use or described in a manner to calculated to lead to its application for obscene or abortion-causing purposes) may be obtained or made.[note 6]
  5. Mail matter giving information as to from who, where, how, or by what means an act or operation for abortion may be procured or produced.[note 7]
  6. Mail matter advertising or representing as to whether or by what means an article may be applied for obscene or abortion-causing purposes.[note 8]
  7. Mail matter calculated to incite use of an article for obscene or abortion-causing purposes.[note 9]

There are a number of implications with these specifics listed in 18 U.S.C. § 1461.

First, as summarized in points 1, 2, and 3 above, this section outright criminalizes activities related to the mailing of three categories of objects, with no direct First Amendment implications, and to this extent has been upheld as constitutionally valid by the Supreme Court.[8][7][18][19][20]

Second, as summarized in point 4 above, this section criminalizes activities related to the mailing of information providing as to from who, where, what, or how an article, already criminalized from being mailed outright, may be obtained or made. Although it holds little precedential value, as it was a decision by a United States district court, this provision was ruled unconstitutional (for being overbroad) in United States v. Goldstein (1976).[21]

Third, laws prohibiting conveyance of material providing information on the procurement of legal abortion were ruled unconstitutional on First Amendment grounds in Bigelow v. Virginia (1975).[22] As far as illegal abortion procurement is concerned, that is criminal solicitation and the First Amendment affords no constitutional protection.[23] It has been noted in one scholarly article that successful prosecution for illegal abortion solicitation under this Act would be difficult as nothing in the text specifies which of the laws on either end of the solicitation govern the legality, nor whether it is state or federal that which govern.[24]

18 U.S.C. § 1462[edit]

The second of the three primary sections of the Comstock Act is codified as positive law at section 1462 of chapter 71 of part I, title 18, United States Code. It was initially enacted under Sec. 211 of the Criminal Code Act of 1909 on March 4, 1909.

The punishment for a violation of section 1462 is identical to that provided for violating section 1461. Similarly there exists two elements to an offense under this section. First, the matter in question has to be of that described. Second, a person must knowingly commit any of the specified acts (which in this section is either import, carriage across a state or international border, or receipt of the specified material) and implicate in connection either the U.S. mail, a common carrier, or interactive computer service.[25]

In terms of differences to the previous section, section 1462 deviates in that its scope expands to cover the use of a common carrier or interactive computer service. Section 1461 only applies to the U.S. Mail, but section 1462 covers both that and a private package delivery service such as United Parcel Service or Federal Express.[26] An interactive computer service generally includes an internet website.[27][28] Another difference of 18 U.S.C. § 1462 is in its scope, which is more limited than 18 U.S.C. § 1461, as it describes three as opposed to the seven particular matters. The three matters specified in 18 U.S.C. § 1462 are:

  1. An obscene article (to include the additions of 'a thing capable of producing sound' or a 'motion picture film').
  2. An article designed, adapted, or intended for obscene or abortion-causing purposes.
  3. Mail matter giving information as to who, what, where, or how an article (either designed, adapted, intended for use or described in a manner calculated to incite to its use for obscene or abortion-causing purposes) may be obtained or made.[note 10]

18 U.S.C. § 1463[edit]

The final Comstock Act provision in chapter 71, of part I, of title 18, United States Code, found at section 1463, concerns mailing any of the matters mentioned in section 1461 or 1462 on the outside of a mail piece. Like section 1462, this section came initially as an amendment (contained in Sec. 212.) through the Criminal Code Act of 1909. 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 section carries no sentence enhancement for prior offenses, unlike section 1461 or 1462.[29]

18 U.S.C. § 552[edit]

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,and pertains to customs officials acting as principal to certain activity. For abortion-related matter, this section applies to the extent implicating procurement of abortion. This section, currently codified as positive law, was first enacted as Sec. 4. of an Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use.[16]

There are four elements to an offense under this section. First, one must be either an officer, employee, or agent of the United States. Second, one must knowingly aid or abet any of the specified offenses (importing, advertising, dealing, sending, or receiving). Third, the knowing aiding or abetting, by an officer, employee, or agent of the United States, must implicate use of the mail. Fourth, the offense must implicate any of the matters specified.[30] These are summarized below:

  1. Obscene articles.
  2. Articles advocating or urging treason, insurrection, or forcible resistance against the United States.
  3. Mail matter containing true threats, of physical harm to or taking the life of, any person in the United States.
  4. Articles containing means for procuring abortion, for which the surrounding court decisions have limited to the procuring of illegal abortion.[22]

Sec. 305. of the Tariff Act of 1930 (or 19 U.S.C. § 1305)[edit]

In addition to the criminal importation provisions under section 1462, there is also a civil forfeiture provision of the Comstock Act.[31] While an earlier version did exist, as Sec. 5. of the Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use,[16] the modern version was initially enacted under Sec. 305. of the Tariff Act of 1930 and is currently codified (in a non-positive law title) at section 1305 of title 19, United States Code. It presently provides that:

"All persons are prohibited from importing into the United States from any foreign country any book, pamphlet, paper, writing, advertisement, circular, print, picture, or drawing 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 any 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 which is obscene or immoral, or any drug or medicine or any article whatever for causing unlawful abortion, or any lottery ticket, or any printed paper that may be used as a lottery ticket, or any advertisement of any lottery..."

This provision has two basic aspects. First and foremost, it subjects foreign treasonous matter, foreign obscene matter, foreign matter implicating true threats, or foreign lottery items to civil forfeiture. It also applies towards foreign material related to abortion (specifically those which cause an abortion), but only to the extent intended for unlawful purposes. This is unlike the other sections of the Comstock Act pertaining to abortion which, on the face of it, apply to abortion-related matters generally. Secondly, it provides a number of exceptions. These exceptions are items imported without the importer's knowledge, bulk abortion-related materials not intended for unlawful use, classic books of recognized merit when permitted by the Secretary of the Treasury, and lottery tickets printed in Canada after 1993 for use in lotteries within the United States.[32]

39 U.S.C. § 3001(e)[edit]

The last section of the Comstock Act is found at 39 U.S.C. § 3001 in subsection (e), and it declares that unsolicited 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.[33] This provision was ruled unconstitutional in Bolger v. Youngs Drug Products Corp (1983), as-applied to business mailings, due to an as-applied First Amendment challenge.[34][35]

Definitions, knowledge requirement, statute of limitations, etc.[edit]

Concerning the definitions used in the Comstock Act, there are three key definitions: indecent, obscene, and knowingly.

For purposes of the Comstock Act, the term indecent is defined in the text as including "matter of a character tending to incite arson, murder, or assassination".[17] This distinct definition has been reduced largely to dead-letter by court rulings and current enforcement has applied the term as a synonym for obscene.[14][11][12][13]

The term obscene is not defined in the actual text of Comstock Act, nor is it defined in the text for 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 judging obscenity.[36][37] The Miller Test has three prongs which are as follows:

  1. The average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest;
  2. the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and
  3. the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

For reference, under the Model Penal Code, a guide often used to assist in legislative drafting, the knowingly criminal knowledge requirement, the second most stringent behind 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.”[38]

As nothing in its text indicates otherwise, and since a violation of the Act is a non-capital offense, it has a 5-year statute of limitations.[39][40]

Jurisprudence on the Comstock Act (1878 to present)[edit]

Contemporary[edit]

Context[edit]

After the June 2022 decision in Dobbs v. Jackson Women's Health Organization (2022), which overturned Roe v. Wade (1973) and returned regulation of abortion to the states, the enforceability of the Comstock Act as applied to abortion-related articles became the subject of legal dispute.

FDA v. Alliance for Hippocratic Medicine (2024)[edit]

On April 7, 2023, Matthew J. Kacsmaryk, a district judge for the United States District Court for the Northern District of Texas, ruled at the trial-level in the case of Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration that the Comstock Act of 1873 made the mailing of abortifacients illegal,[41] conflicting with an opposing same day ruling by Thomas O. Rice, a district judge of the United States District Court for the Eastern District of Washington.[42] The ruling by judge Kacsmaryk was criticized in the Washington Post as using cherry picked scientific data and as an example of forum shopping.[43][44]

Upon appeal (six days later) to the United States Court of Appeals for the Fifth Circuit, some of the ruling by judge Kacsmaryk was partially stayed and some of the claims presented were thrown out, although a sizable portion of Kacsmaryk's ruling emerged unscathed.[45] In the appellate review, circuit judge James C. Ho vigorously dissented and repeatedly cited the Comstock Act. Judge Ho argued, like judge Kacsmaryk, that the Food and Drug Administration's 2021 rules for mifepristone violated the Comstock Act, specifically those codified at sections 1461 and 1462 of title 18, United States Code. Judge Ho's argument primarily rested on his assertion that mifepristone is an "abortifacient” for which the conveyance of is made unlawful by the statute and that the Federal Food, Drug, and Cosmetic Act of 1938 did not supersede the Comstock Act of 1873 as applied to abortifacients.[46]

The case was later appealed from the Fifth Circuit to the Supreme Court. During oral arguments before the United States Supreme Court on March 26, 2024, concerning regulation of mifepristone (a drug commonly used for miscarriage treatment and medication abortion), Associate Justice Samuel Alito asked Solicitor General Elizabeth B. Prelogar about the Comstock Act, in particular the effect of section 1461 as applied to FDA-approved drugs.[47]

On June 13, 2024, the Supreme Court unanimously held that the Alliance for Hippocratic Medicine did not have standing (no plaintiff suffered a concrete and particularized injury-in-fact) sufficient to bring the case, and thereby the Supreme Court avoided a direct ruling on whether the FDA approval of mifepristone had been properly conducted or if the Comstock Act applies to mifepristone.[48]

Ongoing litigation[edit]

On May 13, 2024, the State of Texas (represented by Attorney General Ken Paxton) joined as plaintiff with two professors at the University of Texas at Austin in the filing of federal lawsuit, in which the two professors assert that University of Texas faculty should be allowed to refuse accommodating absences of students in their classes when the absence is that of the student pursuing an elective abortion. The professors also argued that they ought be permitted to refuse to hire a teaching assistant if the assistant were to have taken leave for similar reasons.[49] [50]

Although the professors are from the Austin area, the lawsuit was not filed in the Austin division of the United States District Court for the Western District of Texas, but instead was brought before the Amarillo division of the United States District Court for the Northern District of Texas (NDTX), a court duty post roughly 400+ miles away from Austin. The Amarillo division for the NDTX is a single-judge division and the presiding district judge is Matthew J. Kacsmaryk, the same trial-court judge that presided over the now-remanded FDA v. Alliance for Hippocratic Medicine (2024) lawsuit, leading one Austin area NPR station to criticize this pending case as an example of forum shopping.[51]

Historical[edit]

Congressional authority to enact the Comstock Act[edit]

Ex parte Jackson (1878) was the first case brought before the Supreme Court of the United States that 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.[7] In doing, the Supreme Court unanimously affirmed both the lottery circular law and the original provision of the Comstock Act, of which the latter mentioned is presently codified at 18 U.S.C. § 1461, for being a valid exercise of Congressional authority under the Postal Clause,[20] stating:

"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...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

The Supreme Court would reaffirm, in later cases such as Roth v. United States (1957), United States v. Reidel (1971), and Smith v. United States (1977), the holding that 18 U.S.C. § 1461 is a valid exercise of postal power.[6][18][8] While the original provision of the Comstock Act (18 U.S.C. § 1461) is only applicable to the U.S. postal system, and thus it has been upheld on Postal Clause grounds, the 1909 amendment (18 U.S.C. § 1462) applies to both the U.S. mail and a common carrier. Due to this, 18 U.S.C. § 1462 would be upheld on Commerce Clause grounds, as opposed to Postal Clause grounds, as held in United States v. Orito (1973).[9][52] In a separate 1973 case, the Supreme Court would also uphold Sec. 305. of the Tariff Act of 1930 (19 U.S.C. § 1305) as being a valid exercise of authority under the Commerce Clause.[53]

Vagueness challenges[edit]

The broad language used in the Comstock Act has, mostly in the years since the Dobbs decision, lead to some opining that the Comstock Act, particularly 18 U.S.C. § 1461, is unconstitutionally vague.[54][24] However, the understanding built by the surrounding case law has been largely dismissive of vagueness challenges. For instance, in Hamling v. United States (1974), the Supreme Court would uphold section 1461 by adopting a saving construction that conformed the section with the Miller test and rendered the anti-indecency language dead letter.[13][55]

The Supreme Court, in the case of Smith v. United States (1977), the court would push back against yet another vagueness argument (presented this time an as-applied challenge).[10][56] Writing for the court, Associate Justice Harry Blackmun, best known for writing the opinion delivered in Roe v. Wade (1973), would go on to explicitly state:

"Neither do we find § 1461 unconstitutionally vague as applied here. Our construction of the statute flows directly from the decisions in Hamling, Miller, Reidel, and Roth. As construed in Hamling, the type of conduct covered by the statute can be ascertained with sufficient ease to avoid due process pitfalls. Similarly, the possibility that different juries might reach different conclusions as to the same material does not render the statute unconstitutional.".

A holding similar to that reached in the Hamling and Smith cases also applies to section 1462, as was written in the opinion for United States v. 12 200-ft Reels of Film (1973).[53][11] In part, the Court commented:

"If and when such a ‘serious doubt’ is raised as to the vagueness of the words ‘obscene,’ ‘lewd,’ ‘lascivious,’ ‘filthy,’ ‘indecent,’ or ‘immoral’ as used to describe regulated material in 19 U.S.C. § 1305(a) and 18 U.S.C. § 1462…we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of that specific "hard core" sexual conduct given as examples in Miller v. California…".

A similar line of interpretation had already been adopted for Sec. 305. of the Tariff Act of 1930 (or 19 U.S.C. § 1305), as was stated in United States v. Thirty-Seven Photographs (1971). This was an opinion handed down two years prior to Miller v. California (1973) that additionally interpreted a 14 day time limit into the beginning of a forfeiture under Sec. 305 of the Tariff Act of 1930.[12][19]

Moreover, Ward v. Illinois (1977), issued shortly after Smith, would reaffirm the all above with regard to vagueness.[14]

Obscenity statutory interpretation[edit]

While the standards for what constitutes obscenity have changed since the Comstock Act's initial passage, the Act's application to obscenity has been upheld against an array of First Amendment challenges. As an example, in Roth v. United States (1957), a case partially superseded by Miller v. California (1973) as to the particular test used, the Supreme Court would uphold the Comstock Act against a First Amendment challenge.[6][57] The Court remarked:

"Roth's argument that the federal obscenity statute [18 U.S.C. § 1461] unconstitutionally encroaches upon the powers reserved by the Ninth and Tenth Amendments to the States and to the people to punish speech and press where offensive to decency and morality is hinged upon his contention that obscenity is expression not excepted from the sweep of the provision of the First Amendment...That argument falls in light of our holding that obscenity is not expression protected by the First Amendment. We therefore hold that the federal obscenity statute punishing the use of the mails for obscene material is a proper exercise of the postal power delegated to Congress by Art. I, § 8, cl. 7.".

In One, Inc. v. Olesen (1958), decided as a follow-on to Roth, the Supreme Court deemed press materials related homosexuality as not being obscene.[58][59] MANual Enterprises v. Day (1962) was yet another Supreme Court case, decided shortly after Roth v. United States (1957), in which the Court dealt with whether homosexuality-related material (in this case, photographs of nude or near-nude male models) was obscene. The Court ruled again that such was not obscene.[60] The Miller test is the obscenity test currently applied to the Comstock Act, as explained in the opinion for Hamling v. United States (1974).[13]

Statutory interpretation of abortion-related references[edit]

With respect to the Comstock Act's references to abortion, which currently have not yet been removed as had the reference to contraceptives, historically federal courts have interpreted this as applying only to articles intended for unlawful abortion, reconciling it with both Sec. 305. of the Tariff Act of 1930 (which does make explicit that it applies only to drugs or devices intended for unlawful abortion uses) and with early drafts of the Comstock Act's provisions (which also made this distinction). This particular construction is explained in greater detail by the historical revision notes for 18 U.S. Code § 1461 from the 1940s, when codification of title 18 of the United States Code first began, and in a late 2022 legal memorandum issued by the United States Assistant Attorney General shortly after the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization.[61][17]

However, scholarly literature has pointed out that this particular construction is largely based on a handful of decisions from United States courts of appeals (which only bind to courts in that particular circuit),[62] the non-binding historical revision notes already mentioned (which, while guidance, have no force or effect of law, unlike statutory notes which are themselves law),[63] and the likewise non-binding legal memorandum aforementioned (merely an enforcement guide which can be revoked or modified at any time). Further complicating things is that there exists no Supreme Court opinion on whether this 'illegal intentions' construction is the proper one and nothing in the text of the Comstock Act itself (except for that added by Sec. 305. of the Tariff Act of 1930) actually makes this legal-versus-illegal distinction, so this outlook may change in the aftermath of either future litigation or through a future presidential administration.[64]

Miscellaneous statutory interpretation[edit]

Grimm v. United States (1895), an early case concerning the Comstock Act, dealt with whether the Act outlawed mere possession of obscene 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.[65]

Scholarly discussion[edit]

A so far judicially unaddressed point of scholarly discussion is whether, in consideration of the motives behind enacting it, the Comstock Act could survive legal challenges alleging it to be discriminatory.[66] Another area of interest to legal scholars concerned the effect of the Comprehensive Crime Control Act of 1984 which, among other things, added 'dealing in obscene matters' as a predicate offense for purposes of the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO). It was initially believed by some scholars that this modification to RICO would get struck down as an unconstitutional burden on First Amendment protected conduct and that federal anti-obscenity law, particularly the Comstock Act, might go down with it.[67] Nine years after this modification was made to RICO, this concern would be answered, as the Supreme Court, in Alexander v. United States (1993), upheld, against a First Amendment challenge, a RICO forfeiture pertaining to obscenity.[68]

Related issues[edit]

Contraceptives[edit]

Margaret Sanger, the founder of Planned Parenthood, was charged in 1915 for her work The Woman Rebel. Sanger circulated this work through the U.S. postal service, 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.[69] Her husband, the architect William Sanger, was similarly charged earlier in the year under a New York law against disseminating contraceptive information.[70] 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. The United States Court of Appeals for the Second Circuit ruled in United States v. One Package of Japanese Pessaries (1936) that the Comstock Act was not to be construed as interfering with practice of physicians.[69][71]

Griswold v. Connecticut (1965) struck down a contraception related Comstock-style law in Connecticut. However, Griswold only applied to marital relationships.[72][73] Eisenstadt v. Baird (1972) extended its holding to unmarried persons as well.[74] In 1971, the U.S. Congress removed the reference to contraceptives from the federal-level Comstock Act, but left much the rest of the Act stand as it had been written.[75]

Contemporary enforcement[edit]

Due to its age, the Comstock Act has been referred to by some commentators, in publications such as MSNBC and Slate as a 'zombie law'.[76][77] However, the Act remains just as effective as does any other federal law unless repealed or amended.[78] The doctrine of desuetude (the common law concept that a law is repealed if it isn't used in a long time) has never garnered widespread support in U.S. courts.[64]

In addition, the law has had some prosecutions in recent years, though enforcement of the Act’s provisions has shifted from obscenity generally to instead being a tool in securing child pornography convictions, as evidenced by federal appellate court decisions from 2014, 2015, 2016, and 2022.[79][80][81][4] According to FBI agent Roger Young,[82] the Comstock Act (and other federal obscenity laws) were initially the only tools available for federal authorities to combat child pornography:

“All along [my career], I had some national and international child pornography cases and cases involving child prostitution. But when I [first] began working child pornography cases early in 1977, there were no child porn laws. We [the FBI] used obscenity laws to prosecute child porn.”

The most recent conviction made under the Comstock Act, with five of the nine charges being brought forth under 18 U.S.C. § 1462, was that of Thomas Alan Arthur, a Texas man who was sentenced in 2021 to 40 years in federal prison for his role as the operator of an internet site that acted as a paid repository of obscene writings and drawings pertaining to child sexual abuse.[5][4]

This change in enforcement, from general obscenity to an emphasis on child sexual abuse material, was bolstered by the Reagan Administration and by the outcome in New York v. Ferber (1982), a landmark decision in which the Supreme Court unanimously held that child pornography is not protected by the First Amendment.[83][84] President Reagan made child sexual abuse prosecution a priority during his administration[85] and stated in 1987:

"[T]his Administration is putting the purveyors of illegal obscenity and child pornography on notice: your industry's days are numbered.".

The Child Protection and Obscenity Enforcement Act of 1988, signed by President Reagan as a rider to the Anti-Drug Abuse Act of 1988, amended Sec. 305 of the Tariff Act of 1930, a provision of the Comstock Act, as well as adding new provisions to chapter 71, of part I, title 18, United States Code, all in aid of tackling child pornography.[note 1] Another anti-child-pornography and anti-obscenity law to be signed by President Reagan is the Child Protection Act of 1984 and was the first law to generally outlaw child pornography at the federal level.[86] The Reagan-era amendments do not stand alone though, as President Bill Clinton would later sign into law 1994 and 1996 amendments to the Comstock Act that increased its penalties and expanded the scope of 18 U.S.C. § 1462 to cover an interactive computer service.[75]

President Reagan’s Remarks at the Signing Ceremony of the Child Protection Act on May 21, 1984.

Historical background[edit]

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

General[edit]

The initial 'Comstock Act' was enacted as an off-topic rider under Sec. 148 of an Act to revise, consolidate, and amend the Statutes relating to the Post-office Department, and passed on June 8, 1872. It read:

"That no obscene book, pamphlet, picture, print, or other publication of a vulgar or indecent character, or any letter upon the envelope of which, or postal card upon which scurrilous epithets may have been written or printed, or disloyal devices printed or engraved, shall be carried in the mail; and any person who shall knowingly deposit, or cause to be deposited, for mailing or for delivery, any such obscene publication , shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall, for every such offence, be fined not more than five hundred dollars or imprisoned not more than one year, or both, according to the circumstances and aggravation of the offense."

This section was amended by Sec. 2. of Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use. This law was enacted on March 3, 1873 by then-President Ulysses S. Grant.[16] The amendment made by Sec. 2. of that Act criminalized any use of the U.S. Postal Service to send any of the following items:[87] obscenity, contraceptives, abortifacients, sex toys, personal letters with any sexual content or information, or any information regarding the above items.[88] The provisions of the Comstock Act, as currently revised, only pertain to obscenity, crime-inciting, or abortion-related articles or mail matter.

In addition to the federal law about half of the states enacted laws related to the federal Comstock Act.[89]: 9  In a 1919 issue of the Journal of Criminal Law & Criminology, Kansas judge J. C. Ruppenthal, after reviewing the various laws (especially state laws) called them "haphazard and capricious" and lacking "any clear, broad, well-defined principle or purpose".[90]

Objectives and intent[edit]

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,[91] but which also dealt with birth control and abortion issues.

The historical enforcement of Comstock-style laws targeted pornography, contraceptive equipment, abortion drugs and devices, materials providing descriptions of contraceptive or abortion methods, materials advertising people with information of or providing for birth control, abortion, or other similar services. A particular concern to historical enforcement was targeting advertisements for abortifacients found in penny papers, which were pills often offered to women as a euphemistic treatment for "obstruction of their monthly periods."[92]

Anthony Comstock's ideas of sexual morality were strict. During his time of greatest power, some anatomy textbooks were even prohibited from being sent to medical students by the United States Postal Service.[93] According to Mary Ware Dennett, Comstock defined “perverts” as those using contraceptives outside of marriage. Thus, believing that government ought not "allow any one at all to secure them or know anything about them."[94] In her view, Comstock's reasoning seems to have been that if one outlawed all contraceptive information, etc., the morals of youth were less likely to be corrupted.[89]

Legislative context[edit]

YMCA[edit]

In February 1866, the executive committee of the Young Men's Christian Association (YMCA) of New York privately distributed a report, 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 drawn from census, tax data, and licensing reports. All of this data was used to support the belief held by Association’s leadership that many of its younger, more unsupervised members had ample enough free time in the evenings to leisure about in bars, casinos, and brothels.

The 1866 memorandum was used to support a plan to construct a centrally located building to better serve the younger men of New York. Not only was it claimed that the planned building would support the spiritual, mental, and social well-being of young men, it was also promoted as benefiting their physical health.[95] However, the memorandum also recommended, in addition to this new building, a ‘call to action’ by the organization’s members to investigate whether or not there were any local anti-vice laws in New York.

Upon concluding there were none, the association lobbied in the New York State legislature for an anti-vice law. The New York YMCA-drafted bill was successfully enacted in 1868, although with weaker language than had been first proposed. After the passage of the bill, the New York YMCA convened a watchdog committee to monitor, from the sidelines, the enforcement of the new law. This 1868 law enabled local magistrate judges to issue warrants to police that would allow them to seize and later destroy (upon a guilty verdict) obscene materials.[95]

Anthony Comstock[edit]

Anthony Comstock, anti-vice activist and namesake of the Comstock Act, got his political start when he campaigned against saloons in Brooklyn. Later introduced to the YMCA, Comstock would form a close ties with the organization. Along his career, he became unhappy with the before-mentioned New York law and believed in a need for federal legislation. In 1872, Comstock managed to get the initial provision of the Comstock Act added as an off-topic rider to a postal service re-consolidation bill. Although Comstock had hoped this initial law would be enough to mitigate the postal service's use in facilitating 'vice', he soon became disappointed as gaps in the law appeared. To remedy these perceived problems, Comstock worked on a new stand-alone piece of legislation. While meeting with Representative Clinton L. Merriam, Comstock showed the representative obscene materials not outlawed by Comstock's initial proposal. Merriam would bring the bill for introduction before the U.S. House Of Representatives. Comstock secured the bill's passage in the senate by William Windom due to the fact Comstock had personal connections with then-Associate Justice William Strong.[95]

Anthony Comstock would later secure a position as a United States Postal Inspector. In spite of this, the Committee for the Suppression of Vice at the New York YMCA, which would later splinter off to become the New York Society for the Suppression of Vice, requested that he not be given a government salary. By preventing Comstock from receiving a federal salary, as well as any other publicly-funded monetary rewards, the organization's directors attempted to prevent claims of self-interested motives and to ensure that Comstock was dependent on their donations.[96]

Extended works of Comstock along the lines of these 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.[97] 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 spurious efforts left some of his original supporters to doubt his intentions. Comstock's time as a postal inspector yielded over 3,600 arrests and the destruction of over 160 tons (150,000 kg) of literature ruled to be obscene.[98]

Contemporary discourse[edit]

Context[edit]

Following the outcome reached in Dobbs v. Jackson Women's Health Organization (2022), the Comstock Act has become increasingly discussed by conservative political action groups and figures as being a means by which abortion access in the United States could be curtailed without the need for new legislation.

In a February 2024 interview with The New York Times, Jonathan F. Mitchell, an attorney who once served as the Solicitor General of Texas, expressed this viewpoint: “We don’t need a federal ban when we have Comstock on the books.” While optimistic about the prospect of using the law to limit abortion access, Mitchell nonetheless hoped that former-President Donald Trump wouldn't discuss the issue: "[I hope Trump] doesn’t know about the existence of Comstock, because I just don’t want him to shoot off his mouth [emphasis added]." Mitchell said similarly of anti-abortion activists: “I think the pro-life groups should keep their mouths shut as much as possible until the [2024 presidential] election [emphasis added].” [99] Mitchell has been involved with both Trump and the anti-abortion movement in the past, having represented Trump before the U.S. Supreme Court on whether the former president could appear on the ballot in Colorado[100] and acting as the drafter behind the Texas Heartbeat Act of 2021, or Senate Bill 8 (S.B. 8), a law which established an exclusively private, cause of action against persons performing an abortion or any person aiding or abetting an abortion.[101]

The Heritage Foundation's Project 2025, a self-styled "mandate for leadership" intended for use by a future conservative President of the United States, has a section on abortion access that indirectly refers to the Comstock Act as "federal laws that prohibit the distribution of abortion drugs by postal mail."[102] [103]

Implications[edit]

If the Supreme Court were to affirm a determination that the Comstock Act applies to abortion-related articles generally, or if a future administration began enforcing it in such a way, then the Comstock Act could have renewed significance as mifepristone, an anti-progestin and abortifacient drug, is used in 63% of the abortions performed in the United States[104] and is sometimes prescribed after miscarriages.[105] Mifepristone has increasingly been prescribed by telehealth and delivered by mail to individuals within states where abortion has since been outlawed following the Dobbs decision.[106]

Some concerns raised, if this view took hold, are that not only would the use of telehealth to prescribe mifepristone and misoprostol, the two drugs used in combination for most medication abortion, become largely criminal but, since Comstock Act violations are a predicate offense, persons (and their associated enterprises) involved in provisioning abortion telehealth could also face penalties under the Racketeer Influenced and Corrupt Organizations Act of 1970.[107]

Historical discourse[edit]

Historical support[edit]

Obscenity arguments[edit]

As the chief proponent of the law, many of Comstock's justifications revolved around what he believed were the negatives effects indecent literature would have on children. He argued that moral decay was occurring in schools and in the home because of indecent literature, which he believed youth had easy access to. He also argued allowing "obscenity" to flourish in society would cause a social breakdown of traditional marriage and of religious institutions. Comstock leaned on support from wealthier families for the majority of his legislative and political success.[108]

Clinton L. Merrian, who first introduced the Comstock Act to the House of Representatives, campaigned its passage on the idea that obscenity was a direct threat to manhood and that in order to protect it, the mailing of obscene materials needed to outlawed.[108]

Contraception arguments[edit]

As it originally implicated contraceptives, it was argument by supporters that the Act 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.[89]

Echoing Catholic Church doctrine,[109] Charles Coughlin, a priest and radio broadcaster, argued in support of the Act before a 1934 congressional committee, characterizing non-procreative sex as “legalized prostitution”. During his testimony, there was heckling from the audience, with one woman calling out to Coughlin, "You're ridiculous."[110]

Historical opposition[edit]

1878 repeal attempt[edit]

Four 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.[89]: 63–65  Although the petition received positive press coverage, the efforts were stymied when Comstock showed samples of pornographic material to congressional leaders serving on the same committee for which the proposed repeal act was referred to. Comstock claimed that the pamphlets he had shared, a "collection of smutty circulars describing sex depravity",[89]: 65  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 congressional representative from New York, for review with the Committee on Post Office and Post Roads.[111] The National Defense Association had been established in opposition shortly after the enactment of the Comstock Act. The letter of affidavits had been sent in support of the petition from the National Liberal League. Comstock dismissed the petition after hearing about it, and he asserted that the list was made up of forged signatures and false names. He would also go onto lambast the media for supporting the effort.[89]: 65 

Birth control movement failures[edit]

After the 19th century failures, there was no concerted effort to change Comstock-style laws until the start of the birth control movement in the United States in 1914 led by Margaret Sanger.[89]: 66  Between 1917 and 1925 bills were introduced in California (1917),[89]: 83, 287  New York (1917, 1921,1923, 1924,1925),[89]: 73–82, 282–84  Connecticut (1923, 1925),[89]: 82, 285  and New Jersey (1925)[89]: 82, 286  to make the contraceptive provisions of state laws less restrictive. In both California and Connecticut, work was undertaken to simply have the contraceptive control provisions eliminated. 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 contraceptives from the Comstock Act of 1873, the first starting in 1919 where the bill's supposed sponsor failed to introduce the bill. In 1923 a similar bill was reported before the Judiciary Committee, while it was thought that the majority of this committee favored the bill, they evaded voting on it.[89]: 98–98  There were also more attempts at change in the 1920s.

Eugenics argument in regards to contraceptives[edit]

A historic rebuttal used by opponents to the argument that facilitating contraception would encourage promiscuity was that if such persons used contraception, there would tend to be fewer people like them since fewer people would inherit inclinations towards promiscuity.[89]: 186 

Free Love[edit]

The Free Love movement of the Victorian-era United States was a group that made sustained attempts to repeal Comstock-style laws and discredit anything related to the anti-vice movement. This open distaste made free-love movement participants a major target of Anthony Comstock during his personal crusade against obscenity.[108] Comstock actively targeted individuals associated with the Free Love Movement, particularly those involved in advocating for birth control and the rejection of traditional marriage.[112]

Anthony Comstock used the law bearing his namesake as a tool to prosecute those he deemed promoting immorality.[113] 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.[114] Comstock had Woodhull arrested and charged with obscenity for publishing information about contraception.[112]

See also[edit]

Notes[edit]

  1. ^ a b 18 U.S. Code § 1460, 18 U.S. Code § 1465, 18 U.S. Code § 1466, 18 U.S. Code § 1467, 18 U.S. Code § 1468, and 18 U.S. Code § 1469 were added to chapter 71 by the Child Protection and Obscenity Enforcement Act.
  2. ^ 18 U.S. Code § 1466A was added to chapter 71 by the PROTECT ACT.
  3. ^ This is mentioned using the following language: "Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance...".
  4. ^ This is mentioned with the following language: "Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use...".
  5. ^ This is stated: "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...".
  6. ^ This comes from the first half of one of the unnumbered subsections: "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...".
  7. ^ This comes from the second half of the un-numbered subsection referred to in point 4: "....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...".
  8. ^ This is stated with the following language: "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...".
  9. ^ This is mentioned: "Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing...".
  10. ^ As was explained in the discussion for 18 U.S.C. § 1461, this was ruled unconstitutional in United States v. Goldstein (1976).

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  38. ^ 4.2 Criminal Intent
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Further reading[edit]

  • 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.