Comstock Act (1873)

Sandra Rierson

The brainchild of a zealous and devout New England Congregationalist, Anthony Comstock, the Comstock Act (17 Stat. 599) was passed after little debate in March 1873, in the last days of Ulysses S. Grant's first term as president. The act prohibited the dissemination of any "article of an immoral nature, or any drug or medicine, or any article whatever for the prevention of contraception or procuring of abortion" through the U.S. mail or across state lines. Although the act was amended to delete references to contraceptive devices, it remains on the books today and forbids use of the mails to distribute "obscene" material and anything "which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion...." The act's constitutionality was upheld in three cases on the grounds that the First Amendment does not protect "obscene" speech (Smith v. United States, 1977; United States v. Reidel, 1971; and Roth v. United States, 1957). However, the courts have not ruled on its provisions regarding abortion-related information, largely because they are not enforced.

BACKGROUND

Congress first contemplated censorship of the U.S. Mail while the Abolitionist movement was under way. In 1836 President Andrew Jackson sponsored a bill to prevent use of the mail to disseminate inflammatory Abolitionist tracts. The bill was rejected, largely on First Amendment grounds. Congress did not take up censorship of the mails again until 1842, when it amended the Tariff Act to ban importation of "prints" and "pictures" that were "obscene or immoral." In doing so, Congress made little progress in stemming the flow of objectionable materials in the U.S. mail.

The Tariff Act did nothing to prevent circulation of home-grown "pornography," and it soon became apparent that Civil War combatants were receiving more than just letters from home via the U.S. mail. The war had spawned a thriving business, primarily based out of New York City, in arguably "obscene" novels, pamphlets, and photographs. Congress first tackled the problem in 1865, as the war itself drew to a close. The new obscenity law made it a crime to mail any "obscene book, pamphlet, picture, [or] print." Violation of the law was a misdemeanor offense punishable by a fine of no more than $500 or imprisonment of up to one year.

ANTHONY COMSTOCK'S CRUSADE

Efforts to stamp out pornography took a great leap forward in 1873, largely thanks to the efforts of Anthony Comstock (1844–1915). Comstock was a preeminent and, in the opinion of many, infamous social reformer of the Reconstruction era. Born in rural New Canaan, Connecticut, Comstock was a fire-and-brimstone devotee of the Congregationalist Church. He served in the Union Army and subsequently moved to a boarding house in New York City, where he found work as a dry-goods clerk. Comstock was appalled by the moral decay he perceived around him, evidenced by the rampant drinking, gambling, solicitation of prostitution, and consumption of "dirty books" by his fellow boarders.

Comstock began a personal crusade against the purveyors of "obscene literature," which soon became his full-time job. Sponsored by the affluent members of the Young Men's Christian Association (YMCA), and later the New York Society for the Suppression of Vice (NYSSV), Comstock persuaded merchants to sell him sexually explicit books, and then demanded that the local police arrest the merchants for violating state obscenity laws. Comstock used this technique, which today would be known as entrapment, throughout his career as a crusader against vice. Comstock took his campaign to a national level when, under the sponsorship of the NYSSV, he lobbied Congress for a tougher federal obscenity law. His efforts culminated in the Comstock Act, which was signed into law by Ulysses S. Grant on March 3, 1873.

The Comstock Act significantly broadened and toughened the 1865 obscenity law passed by Congress. It expanded the definition of obscenity to include any information "for preventing conception or producing an abortion." The penalty for a first-time offender increased to a maximum $5000 fine or five years in jail. A repeat offender could be fined up to $10,000 or spend up to ten years in prison.

UNSETTLED AND UNSETTLING TIMES

Although Anthony Comstock referred to the new law as "my Act," the Comstock Act was more than just the product of Comstock's personal religious fervor and dogged determination. The years following the Civil War were a time of great social upheaval in America. The twin forces of industrialization and Reconstruction, combined with record levels of immigration, shook the foundations of American society, just as it was reeling from the death and devastation wrought by the Civil War. As the power of the federal government expanded, crusaders increasingly viewed Congress as the preferred vehicle for restoring moral order to the country. With the Morrill Act of 1862, Congress ended polygamy in Utah. The Federal Lottery Act prohibited use of the mail to transport lottery tickets. The Mann Act outlawed the transportation of women across state lines for prostitution. Perhaps the most well-known of the moral reform crusades was the Temperance Movement, which ushered in the period of Prohibition. In 1919 Congress passed the Volstead Act and ratified the Eighteenth Amendment, banning the manufacture and sale of alcohol throughout the United States.

PROSECUTIONS

Three days after the Comstock Act was enacted, Comstock was commissioned to enforce the act as a Special Agent of the U.S. Post Office. He was given the power to arrest those who violated the act. He once bragged that he had convicted enough people to fill sixty-one passenger cars on a train, approximately 4,000 individuals. One of the most well-publicized prosecutions under the Comstock Act was that of Margaret Sanger, a leader of the birth control movement, in 1914. Sanger was arrested for publishing The Woman Rebel, a monthly newspaper which took a radical stand on many women's issues, including birth control, and Family Limitation, a pamphlet describing birth control methods. While her trial was pending, Sanger fled to Europe. She returned to the United States a year later, and ultimately the charges against her were dismissed. Her husband, William Sanger, was not so lucky. He was convicted of violating the act for distributing a copy of Family Limitation. In another widely publicized case, Comstock arrested Ezra Heywood in 1877 for publishing Cupid's Yokes, or, The Binding Forces of Conjugal Life, a book attacking the institution of marriage and the Comstock Act. Heywood was convicted but later pardoned by President Rutherford B. Hayes in 1878.

Comstock targeted not only birth control advocates as purveyors of the obscene. Comstock put the poet Walt Whitman's Leaves of Grass in this category, specifically the poems To a Common Prostitute and A Woman Waits For Me, due to their use of sexual imagery. Most likely because of negative publicity, the charges were dropped. Other works of literature that Comstock sought to censor included such classics as works by Homer, Ovid, and Boccaccio. Comstock also arrested Alfred Knoedler, a respected art dealer on New York City's Fifth Avenue, for selling reproductions of nudes by the French painter Jean-Jacques Henner. Public reaction to Knoedler's arrest was also over-whelmingly negative.

SUBSEQUENT HISTORY

In 1878 a petition signed by approximately 70,000 citizens, requesting the repeal of the Comstock Act, was presented to Congress. But Congress did not repeal it, and it remains on the books in a modified form today.

The most significant change in today's Comstock Act is the absence of any restrictions regarding contraceptive devices. Although court opinions began to undermine this aspect of the Comstock Act in the 1930s, Congress did not amend the act to delete references to contraception until 1971. Congress amended the law by striking the blanket prohibitions on the mailing of all advertisements for contraceptives in 1971, but it did not delete the particular ban on unsolicited advertisements. In 1983 the Supreme Court ruled that the ban on such advertisements was unconstitutional in Bolger v. Youngs Drug Products Corp.

Surprisingly, the act's restrictions regarding abortion-related information remain on the books, even though the restrictions are inconsistent with the Supreme Court's 1973 decision in Roe v. Wade. In 1994 Congress increased the maximum fine for a first-time violation of the act from $5,000 to $250,000. In 1996 Congress amended the Comstock Act to extend the ban on abortion-related information to the Internet. Although bills have been introduced in both the House and Senate to repeal the abortion-related provisions of the Comstock Act, they have not become the law. Alexander Sanger, president of Planned Parenthood of New York City, and other plaintiffs filed a lawsuit challenging the 1996 amendments to the Comstock Act, but the suit was dismissed because the government had not yet attempted to enforce the act. As long as the government chooses to ignore the Comstock Act, it is unlikely to go away.

See also: Mann Act.

BIBLIOGRAPHY

Beisel, Nicola. Imperiled Innocents: Anthony Comstock and Family Reproduction in Victorian America. Princeton, NJ: Princeton University Press, 1997.

Broun, Heywood and Margaret Leech. Anthony Comstock, Roundsman of the Lord. New York: A & C Boni, 1927.

Chen, Constance M. The Sex Side of Life: Mary Ware Dennett's Pioneering Battle for Birth Control and Sex Education. New York: The New Press, 1996.

Comstock, Anthony. Frauds Exposed; or, How the People are Deceived and Robbed, and Youth Corrupted. 1880. Reprinted by Patterson Smith Publishing, 1969.

Comstock, Anthony. Morals Versus Art. New York: J. S. Ogilvie and Co., 1887.

Foster, Gaines M. Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865–1920. Chapel Hill: University of North Carolina Press, 2002.

Paul, James C. N., and Murray L. Schwartz. Federal Censorship: Obscenity in the Mail. New York: Free Press, 1961.

Sanger, Margaret. Comstockery in America. 1915. Transcribed by the Margaret Sanger Papers Project, Sponsored by the Department of History at New York University (1999). <http://www.nyu.edu/projects/sanger/comstockery_in_america.htm>.

Tone, Andrea. Devices and Desires: A History of Contraceptives in America. New York: Hill and Wang, 2001.

The Comstock Act and the Internet

Sandra Rierson

In 1996, as part of the omnibus Telecommunications Decency Act (TDA), Congress amended the Comstock Act to extend the ban on abortion-related information to the Internet. Representative Henry Hyde, Republican of Illinois, was instrumental in adding this language to the Comstock Act. As amended, the act states that anyone who "knowingly uses" an "interactive computer service" to obtain anything "designed, adapted, or intended for producing abortion" or any "advertisement" or other notice indicating the means by which an abortive device may be obtained, is guilty of violating the act. The courts later found many provisions of the Telecommunications Decency Act unconstitutional.