Comstock laws

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

The Comstock Act, (ch. 258 17 Stat. 598 enacted March 3, 1873) is a United States federal law which 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.^[1] Collectively, these state and federal restrictions are 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, 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, 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 1800s, and by federal law since 1873. Federal anti-obscenity laws are still in effect in 2008 and are enforced,^[2] though the definition of obscenity has changed much (now expressed in the Miller Test) and extensive debates on what is "obscene" continues.

Federal law

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 or through his New York Society for the Suppression of Vice.

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 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.

Comstock clearly hinges on definitions, particularly of obscenity. Though the law was originally based on the Hicklin test, definitions were mostly settled 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." Comstock himself, though, is considered by many to have steped far outside the bounds of his legal power, exerting a sort of legalized vigilanteism.

The Comstock Act not only targeted pornography 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.^[3] The current law on obscenity is expressed in the Miller test.

Effects

Publishing

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.^[4]

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 could bar "obscene" content from the mails at any time.^[5] 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.^[6] 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.^[7]

The prohibition of devices advertised for the explicit purpose of birth control was not overturned for another eighteen years. 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.^[7]

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

• New York Society for the Suppression of Vice

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.
• Maverick, Scott. Anthony Comstock is a Villain: The Truth Behind The Lies. Homemade Essays, 2007.
• 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

Footnotes

1. ^ Kevles, Daniel J. (2001-07-22). "The Secret History of Birth Control", The New York Times. Retrieved on 21 October 2006. 
2. ^ See for example FCC Consumer Facts at fcc.gov. For more detail see "Statement of Professor Frederick Schauer, Hearing on Obscenity Prosecution and the Constitution ... United States Senate March 16, 2005," online at ksg.harvard.edu
3. ^ See for example FCC Consumer Facts at fcc.gov. For more detail, see "Statement of Professor Frederick Schauer, Hearing on Obscenity Prosecution and the Constitution ... United States Senate March 16, 2005," online at ksg.harvard.edu
4. ^ [Full text of decision http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=354&invol=476]
5. ^ Paul, James C.N. and Murray L. Schwartz. "Obscenity in the Mails: A Comment on Some Problems of Federal Censorship"; University of Pennsylvania Law Review, Vol. 106, No. 2 (Dec., 1957), pp. 214-253
6. ^ 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, p. 7.
7. ^ ^{a b} "Biographical Note". The Margaret Sanger Papers. Sophia Smith Collection, Smith College, Northampton, Mass. (1995). Retrieved on 2006-10-21.