Comstock Law
Encyclopedia
Post Office Act
The Post Office Act, , enacted June 8, 1872, formally incorporated the United States Post Office Department into the United States Cabinet. It is also notable for §148 which made it illegal to send any obscene or disloyal materials through the mail, similar to the later Comstock Act of 1873....
and made it illegal to send any "obscene, lewd, and/or lascivious" materials through the mail, including contraceptive devices and information. In addition to banning contraceptives, this act also banned the distribution of information on abortion for educational purposes. Twenty-four states passed similar prohibitions on materials distributed within the states. These state and federal restrictions are collectively known as the Comstock laws.
The Comstock Laws were variously case tested, but courts struggled to establish definitive thinking about the laws. One of the most notable applications of Comstock was Roth v. United States
Roth v. United States
Roth v. United States, , along with its companion case, Alberts v. California, was a landmark case before the United States Supreme Court which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment.- Prior history :Under the common...
, in which the Supreme Court affirmed Comstock, but set limits on what could be considered obscene. This landmark case represented one of the first notable revisions since the Hicklin test
Hicklin test
The Hicklin test is a legal test for obscenity established by the English case Regina v. Hicklin. At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857, which authorized the destruction of obscene books...
, and the evolving nature of the laws on which Comstock was conceived.
The sale and distribution of obscene materials had been prohibited prior to Comstock in most American states since the early 19th century, and by federal law since 1873. Federal anti-obscenity laws are currently still in effect and enforced, though the definition of obscenity has changed much (now expressed in the Miller Test
Miller test
The Miller test , is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.-History and details:The Miller test was developed in the...
) and extensive debates on what is obscene continue.
Federal law
The law was named after its chief proponent, the anti-obscenity crusader Anthony ComstockAnthony Comstock
Anthony Comstock was a United States Postal Inspector and politician dedicated to ideas of Victorian morality.-Biography:...
. The enforcement of the Act was, in its early days, often conducted by Comstock himself or through his New York Society for the Suppression of Vice
New York Society for the Suppression of Vice
The New York Society for the Suppression of Vice was an institution dedicated to supervising the morality of the public, founded in 1873. Its specific mission was to monitor compliance with state laws and work with the courts and district attorneys in bringing offenders to justice. It and its...
.
The text of the federal bill reads:
Be it enacted... That whoever, within the District of Columbia or any of the Territories of the United States...shall sell...or shall offer to sell, or to lend, or to give away, or in any manner to exhibit, or shall otherwise publish or offer to publish in any manner, or shall have in his possession, for any such purpose or purposes, an obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing or other representation, figure, or image on or of paper or other material, or any cast instrument, or other article of an immoral nature, or any drug or medicine, or any article whatever, for the prevention of conception, or for causing unlawful abortion, or shall advertise the same for sale, or shall write or print, or cause to be written or printed, any card, circular, book, pamphlet, advertisement, or notice of any kind, stating when, where, how, or of whom, or by what means, any of the articles in this section…can be purchased or obtained, or shall manufacture, draw, or print, or in any wise make any of such articles, shall be deemed guilty of a misdemeanor, and on conviction thereof in any court of the United States...he shall be imprisoned at hard laborHard LaborHard Labor is the eleventh album by American rock band Three Dog Night, released in 1974 .- Cover Artwork :The original album cover, depicting of the birth of a record album , was deemed too controversial and was soon reworked with a huge bandage covering the "birth". The cover also includes an...
in the penitentiaryPrisonA prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...
for not less than six months nor more than five years for each offense, or fined not less than one hundred dollars nor more than two thousand dollars, with costs of court.
Comstock clearly hinges on definitions, particularly of obscenity. Though the law was originally based on the Hicklin test
Hicklin test
The Hicklin test is a legal test for obscenity established by the English case Regina v. Hicklin. At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857, which authorized the destruction of obscene books...
, definitions were mostly settled in Roth v. United States
Roth v. United States
Roth v. United States, , along with its companion case, Alberts v. California, was a landmark case before the United States Supreme Court which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment.- Prior history :Under the common...
, in which it was determined that obscenity was material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards," and was, "utterly without redeeming social importance." Comstock himself, though, is considered by many to have stepped far outside the bounds of his legal power, exerting a sort of legalized vigilantism.
The Comstock Act not only targeted pornography
Pornography
Pornography or porn is the explicit portrayal of sexual subject matter for the purposes of sexual arousal and erotic satisfaction.Pornography may use any of a variety of media, ranging from books, magazines, postcards, photos, sculpture, drawing, painting, animation, sound recording, film, video,...
as such, but also all contraceptive equipment and many educational documents such as descriptions of contraceptive methods and other reproductive health-related materials. The ban on contraceptives was declared unconstitutional by the courts in 1936, though the remaining portions of the law continue to be enforced today. The current law on obscenity is expressed in the Miller test
Miller test
The Miller test , is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.-History and details:The Miller test was developed in the...
.
Publishing
In 1957, Samuel RothSamuel Roth
Samuel Roth was an American publisher and writer. He was the plaintiff in Roth v. United States , which was a key Supreme Court ruling on freedom of sexual expression...
, who ran a literary business in New York City, was charged with distributing "obscene, lewd, lascivious or filthy" materials through the mail, advertising and selling a publication called American Aphrodite ("A Quarterly for the Fancy-Free"). The publication contained literary erotica and nude photography. In this case, Comstock was upheld and refined in Roth v. U.S.
In a similar case, David Alberts, who ran a mail-order business from Los Angeles, was convicted under a California statute for publishing pictures of "nude and scantily-clad women." The Court granted a writ of certiorari and affirmed both Roth and Alberts.
Under the Comstock Laws, postal inspector
Postal Inspector
Postal Inspector is a 1936 American film directed by Otto Brower.- Cast :*Ricardo Cortez as Inspector Bill Davis*Patricia Ellis as Connie Larrimore*Michael Loring as Charlie Davis*Bela Lugosi as Gregory Benez*Wallis Clark as Inspector Gil Pottle...
s could bar "obscene" content from the mails at any time, thus having a huge impact on publishers of magazines.
Contraception
In 1915, architect William Sanger was charged under the New York law against disseminating contraceptive information. In 1918, his wife Margaret SangerMargaret Sanger
Margaret Higgins Sanger was an American sex educator, nurse, and birth control activist. Sanger coined the term birth control, opened the first birth control clinic in the United States, and established Planned Parenthood...
was similarly charged. On appeal, her conviction was reversed on the grounds that contraceptive devices could legally be promoted for the cure and prevention of disease.
The prohibition of devices advertised for the explicit purpose of birth control
Birth control
Birth control is an umbrella term for several techniques and methods used to prevent fertilization or to interrupt pregnancy at various stages. Birth control techniques and methods include contraception , contragestion and abortion...
was not overturned for another eighteen years. During World War I, U.S. Servicemen were the only members of the Allied forces sent overseas without condoms which led to more widespread STDs among U.S. troops. In 1932, Sanger arranged for a shipment of diaphragms
Diaphragm (contraceptive)
The diaphragm is a cervical barrier type of birth control. It is a soft latex or silicone dome with a spring molded into the rim. The spring creates a seal against the walls of the vagina.-Use:...
to be mailed from Japan to a sympathetic doctor in New York City. When U.S. customs confiscated the package as illegal contraceptive devices, Sanger helped file a lawsuit. In 1936, a federal appeals court ruled in United States v. One Package of Japanese Pessaries
United States v. One Package of Japanese Pessaries
United States v. One Package of Japanese Pessaries, 86 F.2d 737 , was an in rem United States Court of Appeals case in the Second Circuit involving birth control.-Background:...
that the federal government could not interfere with doctors providing contraception to their patients.
In 1965, the U.S. Supreme Court case Griswold v. Connecticut
Griswold v. Connecticut
Griswold v. Connecticut, , was a landmark case in which the Supreme Court of the United States ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives...
struck down one of the remaining contraception Comstock laws in Connecticut
Connecticut
Connecticut is a state in the New England region of the northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, and the state of New York to the west and the south .Connecticut is named for the Connecticut River, the major U.S. river that approximately...
and Massachusetts
Massachusetts
The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...
. However, Griswold only applied to marital relationships. Eisenstadt v. Baird
Eisenstadt v. Baird
Eisenstadt v. Baird, , was an important United States Supreme Court case that established the right of unmarried people to possess contraception on the same basis as married couples and, by implication, the right of unmarried couples to engage in potentially nonprocreative sexual intercourse .The...
(1972) extended its holding to unmarried persons as well.
See also
- Birth control movement in the United StatesBirth control movement in the United StatesThe birth control movement in the United States was a social reform campaign to make contraception legal in America. The movement began in 1914 when a group of radicals in New York City, led by Emma Goldman, Mary Dennett, and Margaret Sanger, became concerned about the plight of poor women, who...
- New York Society for the Suppression of ViceNew York Society for the Suppression of ViceThe New York Society for the Suppression of Vice was an institution dedicated to supervising the morality of the public, founded in 1873. Its specific mission was to monitor compliance with state laws and work with the courts and district attorneys in bringing offenders to justice. It and its...
Further reading
- Beisel, Nicola. Imperiled Innocents: Anthony Comstock and Family Reproduction in Victorian America. Princeton U. Press, 1997.
- Boyer, Paul S. Purity in Print: Censorship from the Gilded Age to the Computer Age. (1968) Revised ed. 2002.
- Friedman, Andrea. Prurient Interests: Gender, Democracy, and Obscenity in New York City, 1909-1945. Columbia U. Pr., 2000.
- Gurstein, Rochelle. The Repeal of Reticence: A History of America's Cultural and Legal Struggles over Free Speech, Obscenity, Sexual Liberation, and Modern Art. Hill & Wang, 1996.
- Hilliard, Robert L. and Keith, Michael C. Dirty Discourse: Sex and Indecency in American Radio. Iowa State U. Press, 2003.
- Kobylka, Joseph F. The Politics of Obscenity: Group Litigation in a Time of Legal Change. Greenwood, 1991.
- Wheeler, Leigh Ann. Against Obscenity: Reform and the Politics of Womanhood in America, 1873-1935. Johns Hopkins U. Press, 2004.
- Statement of Professor Frederick Schauer, Hearing on Obscenity Prosecution and the Constitution, Subcommittee on the Constitution, Civil Rights, and Property Rights Committee on the Judiciary United States Senate March 16, 2005" for legal history