Comstock Act of 1873

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 1872, with an extraneous rider to a postal service reconsolidation 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. Applied broadly for much of its history, modern enforcement is primarily focused on prosecuting child pornography. 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.

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
Codification
Acts amended	Sec. 148 of an Act to revise, consolidate, and amend the Statutes relating to the Post-office Department
U.S.C. sections created	18 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 amended	18 U.S.C. § 1461
Legislative history
Signed into law by President Ulysses S. Grant on March 3, 1873
Major amendments
Criminal Code Act of 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 Child Protection and Obscenity Enforcement Act of 1988, Pub. L. 100–690, title VII, 102 Stat. 4500 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, title V, 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) One, Inc. v. Olesen, 355 U.S. 371 (1958) Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962) United States v. Reidel, 402 U.S. 351 (1971) United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971) United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973) United States v. Orito, 413 U.S. 139 (1973) Hamling v. United States, 418 U.S. 87 (1974) Smith v. United States, 431 U.S. 291 (1977) Ward v. Illinois, 431 U.S. 767 (1977) Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), in which 39 U.S.C. § 3001(e), as-applied to commercial speech, was struck down by the Supreme Court on June 24, 1983. Alexander v. United States, 509 U.S. 544 (1993) Reno v. ACLU, 521 U.S. 844 (1997), in which the amendment to 18 U.S.C. § 1462 made by the Communications Decency Act, as-applied to indecency, was struck down by the Supreme Court on June 26, 1997.

The relevancy to abortion, currently mentioned in the statute, albeit largely in passing, has recently become a point of contention following the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization (2022). Greatly amended 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. Hence, state anti-vice laws have sometimes been referred to as either Comstock-style laws or as Little Comstock Acts.

Text

Context

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 and the PROTECT Act of 2003.

18 U.S.C. § 1461

The first of the three sections of the Comstock Act which are contained under chapter 71 of part I, tile 18, United States Code, is section 1461. This is the initial Comstock Act, as currently amended, and it was first enacted as an extraneous rider under Sec. 148 of an Act to revise, consolidate, and amend the Statutes relating to the Post-office Department. 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.

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. With respect to specifics, this section applies to the extent of the following:

1. An obscene or indecent article.
2. An article designed, adapted, or intended for obscene, indecent, or abortion-causing purposes.
3. An article advertised or otherwise described in a manner calculated to lead to its use for obscene, indecent, or abortion-causing purposes.
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 use for obscene, indecent, or abortion-causing purposes) may be obtained or made.
5. Mail matter giving information as to from who, where, or by what means an act or operation for abortion may be procured or produced.
6. Mail matter giving information as to how or what by means an article may be adapted for obscene, indecent, or abortion-causing purposes.
7. Descriptions calculated to incite use of an article for obscene, indecent, or abortion-causing purposes.

There are number of interesting nuances that can be drawn from these specifics listed:

1. As specified in points 1 and 2, it criminalizes activities related to the mailing of two categories of objects, and to this extent has been upheld by the Supreme Court.
2. As specified in points 4 and 6, it criminalizes activities related to the mailing of information providing as to from who, what, where, or how an article, already criminalized from being mailed, may be obtained or made. In this regard, the language is an exercise of the speech integral to criminal conduct First Amendment exception as it criminalizes mailing information which would aid in acquisition of objects already criminalized from being mailed.
3. As specified in points 3 and 7, and to a lesser extent point 4, it criminalizes activities related to the mailing of information which is calculated to incite, not merely having a tendency to produce, the use of an object, which may be otherwise permitting for mailing, in a manner already criminalized from being mailed. In this regard, the language is an exercise of the speech inciting criminal conduct exception to the First Amendment, as it criminalizes mailing information inciting the use of an object in a manner which, if mailed outright, is criminalized.

18 U.S.C. § 1462

The second of the three primary sections of the Comstock Act is codified as positive law in section 1462 of title 18, United States Code. It was enacted under Sec. 211 of the Criminal Code Act of 1909 on March 4, 1909. It currently 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 (which here is either import, carriage through interstate or foreign commerce, or receipt of the specified material) and use either the mail, a common carrier, or interactive computer service 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 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. 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, as applied to anything other than obscenity, in Reno v. American Civil Liberties Union (1997).

18 U.S.C. § 1463

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. Like 14 U.S.C. § 1462, this section came as an amendment by way of the Criminal Code Act 1909 (Sec. 212 thereof). 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.

18 U.S.C. § 552

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, pertaining to customs officials acting as principal to activities involving obscene, indecent, or abortion-related material. For abortion, this section specifically applies only 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. It currently 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 under this section. First, one must be either an officer, employee, 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 the jurisdictional element at stake. Namely, the use of the mail. Fourth, the offense must implicate any of the articles specified.

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

In addition to the criminal importation provisions under section 1462 of title 18, United States Code, there is also a civil seizure provision of the Comstock Act. 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, the modern version was first 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 obscene and indecent matter to civil forfeiture. It also applies towards material related to abortion (specifically those capable of causing 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 it, apply to abortion-related articles generally. Secondly, it provides a number of exceptions. Items imported without the importer's knowledge (again, intent features regularly throughout the Comstock Act), bulk abortion-related articles 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.

39 U.S.C. § 3001(e)

The last section of the Comstock Act is found at 39 U.S.C. § 3001 in subsection (e) thereof, 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. 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.

Definitions and Intent Requirement

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.

For purposes of the Comstock Act, the term indecent is defined as including "matter of a character tending to incite arson, murder, or assassination". However, as noted in its jurisprudence, this distinct definition has been reduced largely to dead-letter and is instead now viewed as a synonym for obscene.

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. 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 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 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 on the Comstock Act (1878 to Present)

Contemporary

Ongoing litigation

After the June 2022 decision in Dobbs v. Jackson Women's Health Organization, which 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. On April 7, 2023, Matthew J. Kacsmaryk, a district judge of the United States District Court for the Northern District of Texas, ruled in the case of Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration that the Comstock Act of 1873 made mailing of abortifacients illegal, 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. Although 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, a decent portion of Kacsmaryk's ruling emerged unscathed. In response, this appeal to the Fifth Circuit would itself be appealed, up to Supreme Court, and the first hearings began March 26, 2024.

Implications

If the Supreme Court determines that the Comstock Act applies to abortion-related articles generally, or if a future administration begins enforcing it in such a way, then the Comstock Act could have renewed significance as mifepristone, an anti-progestin and abortifacient drug, has increasingly been prescribed by telehealth and delivered by mail to individuals within states where abortion has since been outlawed following the Dobbs decision. Some particular points to note, 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.

Historical

Congressional authority to enact the Comstock Act

Ex parte Jackson (1878) was the first case brought before the Supreme Court of the United States to consider 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 original provision of the Comstock Act, of which the latter mentioned is presently codified at 18 U.S.C. § 1461, as being a valid exercise of Congressional authority under the Postal Clause, 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. 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

The Supreme Court would reaffirm, in later cases such as Smith v. United States (1977) and United States v. Reidel (1971), the holding that 18 U.S.C. 1461 is a valid exercise of postal power. While the original provision of the Comstock Act (18 U.S.C. § 1461) only applied to the 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. This expansion to common carriers, made in response to yet another lottery circular law being upheld, this time in Champion v. Ames (1903), was an early invoking of Congress's power under the Commerce Clause. However, despite the similarity between 18 U.S.C. § 1462 and the lottery circular law upheld in Ames, it would not be until the likes of United States v. Orito (1973) that the court would explicitly uphold 18 U.S.C. § 1462 as a valid exercise under the Commerce Clause, briefly quipping: "Congress has the power to prevent obscene material, which is not protected by the First Amendment, from entering the stream of commerce."

Purported vagueness

At first glance, the provisions in the Comstock Act use broad, riveting language. The verbose prose has, mostly in the years since the Dobbs decision, made some scholars and commentators opine the Comstock Act, particularly 18 U.S.C. § 1461, as being unconstitutionally vague. However, in Hamling v. United States (1974), the Supreme Court would uphold section 1461, by conforming the statute with the Miller test and rendering the anti-indecency language dead letter. The Supreme Court, in the case of Smith v. United States (1977), would reaffirm the ruling in Hamling and rebuke yet another vagueness argument (presented this time an as-applied challenge). 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 Hamling and Smith also applies to section 1462, as written in the opinion for United States v. 12 200-ft Reels of Film (1973). In part, the Court commented that:

"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…".

In addition, 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), an opinion handed down two years prior to Miller v. California (1973). Moreover, Ward v. Illinois (1977), issued shortly after Smith, would reaffirm the all above with regard to vagueness. Overall, for every portion of the Comstock Act which has had persons prosecuted, it has been repeatedly upheld against vagueness challenges.

Statutory construction generally

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 of 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, and not distinctions from, the obscene. Therefore, offenses are on a 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 each particular thing 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 the 1909 amendment of 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.

Statutory interpretation of abortion-related references

With respect to the Comstock Act's references to abortion, which currently have not yet been removed as had the reference to contraceptives, generally federal courts have construed 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 statutory construction is explained both in 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. However, this construction is based only decisions from United States courts of appeals and non-binding enforcement guidance, not Supreme Court opinion, so this framing may very well change in the aftermath of either the ongoing litigation in FDA v. Alliance for Hippocratic Medicine or similar future cases.

Scholarly discussion

A 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. Another area of interest to legal scholars concerns 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 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. 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.

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 potential 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. 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 it was not.

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, 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, 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 on devices advertised for the explicit purpose of birth control was not removed until years later. 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. 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.

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

Contemporary Enforcement

While being over 150 years old, leading some to label it as a ‘zombie law’, the Comstock Act has not entirely fallen into disuse and has had some prosecutions within recent decades. The enforcement of the Act’s provisions has shifted though, from obscenity generally to instead now being a tool in securing child pornography convictions, as evidenced by federal appellate court decisions from 2014, 2015, 2016, 2017, and 2022. The most recent conviction made under the Comstock Act, with five of nine charges being brought forth under 18 U.S.C. § 1461, 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.

This change in enforcement, from general obscenity to an emphasis on child sexual abuse material, was spurred by 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. President Reagan made child sexual abuse prosecution a priority during his administration. He 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 add new provisions to chapter 71, of part I, title 18, United States Code, all in aid of tackling child pornography. 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. Prior to 1977, child pornography was outlawed in only a meager two states. 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.

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

Historical Background

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

General

The initial 'Comstock Act' was enacted as an extraneous 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 was enacted on March 3, 1873 by then-President Ulysses S. Grant. The amendment made by Sec. 2. 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.

In addition to this federal law 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". 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 Comstock-style 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. Instead, she claimed that Comstock was a believer in 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 postal reorganization bill and was authorized by Congress. The legislation enabled a new special agent in the United States Post Office. This agent held the power to confiscate immoral materials sent in the mail and arrest those sending it.

Although Comstock was awarded the position of special agent, the Committee for the Suppression of Vice requested that he not be given a government salary. In the spring of 1873, the committee became separate from the YMCA, as New York gave them a charter as the New York Society for the Suppression of Vice. While the Comstock Act of 1873 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 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. 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 Opinion

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

Comstock-style 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 Comstock Act, 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-style 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 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

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. 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 what they claimed were a loss of civil liberties and restrictions on freedom of the press, and to preserve access to works of art or literature.

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 contraceptive provisions of the 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 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-style 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 Anthony 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 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
• Social hygiene movement
• Obscenity trial of Ulysses in The Little Review
• The Truth Seeker Obscenity Prosecution
• United States obscenity law

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.