Comstock laws

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The Comstock Act,[1] enacted March 3, 1873, is a United States federal law which amended the Post Office Act[2] and made it illegal to send any "obscene" 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.[3] These state and federal restrictions are collectively known as the Comstock laws.

The Comstock laws continue on the statute books, but have been variously tested in the courts, with courts struggling to establish definitive thinking about their application. One of the most notable applications of the Comstock laws was Roth v. United States, in which the Supreme Court affirmed the laws, but set limits on what is to be considered obscene. This landmark case represented one of the first notable revisions of the obscenity test since the Hicklin test, and the evolving nature of the laws on which Comstock was conceived.

The sale and distribution of obscene materials had been prohibited before 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,[4][5] though the definition of obscenity has changed much (now expressed in the Miller Test) and extensive debates on what is obscene continue.

The law was named after its chief proponent, the anti-obscenity crusader Anthony Comstock. The enforcement of the Act was, in its early days, often conducted by Comstock himself as postal inspector or through the New York Society for the Suppression of Vice which he led. Comstock himself is considered by many to have stepped far outside the bounds of his legal power, exerting a sort of legalized vigilantism.

Text of the federal law[edit]

The text of the federal bill reads:[1]

Be it enacted... That whoever, within the District of Columbia or any of the Territories of the United States...shall sell...or shall offer to sell, or to lend, or to give away, or in any manner to exhibit, or shall otherwise publish or offer to publish in any manner, or shall have in his possession, for any such purpose or purposes, an obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing or other representation, figure, or image on or of paper or other material, or any cast instrument, or other article of an immoral nature, or any drug or medicine, or any article whatever, for the prevention of conception, or for causing unlawful abortion, or shall advertise the same for sale, or shall write or print, or cause to be written or printed, any card, circular, book, pamphlet, advertisement, or notice of any kind, stating when, where, how, or of whom, or by what means, any of the articles in this section…can be purchased or obtained, or shall manufacture, draw, or print, or in any wise make any of such articles, shall be deemed guilty of a misdemeanor, and on conviction thereof in any court of the United States...he shall be imprisoned at hard labor in the penitentiary for not less than six months nor more than five years for each offense, or fined not less than one hundred dollars nor more than two thousand dollars, with costs of court.

Objective of the law[edit]

The Comstock Act targeted pornography as well as contraceptive equipment and many educational materials such as descriptions of contraceptive methods and other reproductive health-related materials.

Comstock's ideas of what might be "obscene, lewd, or lascivious" were quite broad. During his time of greatest power, even some anatomy textbooks were prohibited from being sent to medical students by the United States Postal Service.[6]

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.

Definition of obscenity[edit]

The Comstock Act clearly hinges on definitions, particularly of obscenity. Though the courts originally adopted the British Hicklin test, an American test was finally set down in Roth v. United States, in which it was determined that obscenity was material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards," and was, "utterly without redeeming social importance."

History[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,[7] but which also dealt with birth control and abortion issues. The main support and active persecutor for the moral purposes of the Comstock laws was the New York Society for the Suppression of Vice, led by Comstock.

The law was invoked in 1933 to ban the distribution through the United States Postal Service of the nudist publication "The Nudist", even with the genitals airbrushed out of the photos. The matter finished up in the United States Supreme Court, where the AANR ultimately won the right to distribute materials through the mail. This victory paved the way for not only nudist organisations being entitled to use the postal service to distribute their magazines and materials but also some of the more seedy publications such as Hugh Hefner's Playboy and other magazines.

Judicial views[edit]

Obscenity[edit]

In 1957, Samuel Roth, who ran a literary business in New York City, was charged with distributing "obscene, lewd, lascivious or filthy" materials through the mail, advertising and selling a publication called American Aphrodite ("A Quarterly for the Fancy-Free"). The publication contained literary erotica and nude photography. In this case, Comstock was upheld and refined in Roth v. U.S.[8]

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 inspectors can bar "obscene" content from the mails at any time,[9] thus having a huge impact on publishers of magazines.

Publications addressing homosexuality were deemed obscene under the Comstock Act until 1958.[10] In One, Inc. v. Olesen, as a follow-on to Roth v. United States, the Supreme Court granted free press rights around homosexuality.

The Comstock laws banned distribution of sex education information, based on the premise that it was obscene and led to promiscuous behavior[11] Mary Ware Dennett was fined $300 in 1928, for distributing a pamphlet containing sex education material. The American Civil Liberties Union (ACLU), led by Morris Ernst, appealed her conviction and won a reversal, in which judge Learned Hand ruled that the pamphlet's main purpose was to "promote understanding".[11]

Contraception[edit]

In 1915, architect William Sanger was charged under the New York law against disseminating contraceptive information.[12] In 1918, his wife Margaret Sanger was similarly charged. On appeal, her conviction was reversed on the grounds that contraceptive devices could legally be promoted for the cure and prevention of disease.[13]

The prohibition of devices advertised for the explicit purpose of birth control was not overturned for another eighteen years. During World War I, U.S. Servicemen were the only members of the Allied forces sent overseas without condoms.

In 1932, Sanger arranged for a shipment of diaphragms to be mailed from Japan to a sympathetic doctor in New York City. When U.S. customs confiscated the package as illegal contraceptive devices, Sanger helped file a lawsuit. In 1936, a federal appeals court ruled in United States v. One Package of Japanese Pessaries that the federal government could not interfere with doctors providing contraception to their patients.[13]

In 1965, the U.S. Supreme Court case Griswold v. Connecticut struck down one of the remaining contraception Comstock laws in Connecticut and Massachusetts. However, Griswold only applied to marital relationships. Eisenstadt v. Baird (1972) extended its holding to unmarried persons as well.

See also[edit]

Notes[edit]

  1. ^ a b The Comstock Act 17 Stat. 598
  2. ^ Eskridge, William N. (2002). Gaylaw: challenging the apartheid of the closet. Harvard University Press. p. 392. 
  3. ^ Kevles, Daniel J. (July 22, 2001). "The Secret History of Birth Control". The New York Times. Retrieved 2006-10-21. 
  4. ^ "Obscenity, Indecency and Profanity". Federal Communications Commission. 
  5. ^ "Statement of Professor Frederick Schauer; Hearing before the Subcommittee on the Constitution, Civil Rights and Property Rights of the Committee on the Judiciary". United States Senate, One Hundred Ninth Congress, first session. March 16, 2005. 
  6. ^ Paul D. Buchanan. The American Women's Rights Movement. p. 75. 
  7. ^ Paul R. Abramson (2002). With Pleasure: Thoughts on the Nature of Human Sexuality. Oxford University Press US. p. 180. ISBN 0195146093. 
  8. ^ "Full text of decision in ROTH v. UNITED STATES, 354 U.S. 476 (1957)". 
  9. ^ Paul, James C.N. and Murray L. Schwartz (Dec., 1957). "Obscenity in the Mails: A Comment on Some Problems of Federal Censorship". University of Pennsylvania Law Review 106 (2): 214–253. 
  10. ^ Murdoch, Joyce and Deb Price (2001). Courting Justice: Gay Men and Lesbians v. the Supreme Court. New York: Basic Books. p. 47. ISBN 978-0-456-01513-1. 
  11. ^ a b Walker, Samuel (1990)). In Defense of American Liberties: A History of the ACLU. Oxford University Press. p. 85. ISBN 0-19-504539-4. 
  12. ^ Staff Reporters (September 11, 1915). "Disorder in Court as Sanger is Fined: Justices Order Room Cleared When Socialists and Anarchists Hoot Verdict" (pdf). The New York Times: 7. 
  13. ^ a b "Biographical Note". The Margaret Sanger Papers. Sophia Smith Collection, Smith College, Northampton, Mass. 1995. Retrieved 2006-10-21. 

Further reading[edit]