Comstock Law

Template:See


The Comstock Act,[1] enacted March 3, 1873, was 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 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 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

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

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

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

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, lead 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 legitimate nudist magazines and materials but also some of the more seedy versions and, eventually, Hugh Hefner's Playboy empire.

Judicial views

Obscenity

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

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

Notes

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.
This article was sourced from Creative Commons Attribution-ShareAlike License; additional terms may apply. World Heritage Encyclopedia content is assembled from numerous content providers, Open Access Publishing, and in compliance with The Fair Access to Science and Technology Research Act (FASTR), Wikimedia Foundation, Inc., Public Library of Science, The Encyclopedia of Life, Open Book Publishers (OBP), PubMed, U.S. National Library of Medicine, National Center for Biotechnology Information, U.S. National Library of Medicine, National Institutes of Health (NIH), U.S. Department of Health & Human Services, and USA.gov, which sources content from all federal, state, local, tribal, and territorial government publication portals (.gov, .mil, .edu). Funding for USA.gov and content contributors is made possible from the U.S. Congress, E-Government Act of 2002.
 
Crowd sourced content that is contributed to World Heritage Encyclopedia is peer reviewed and edited by our editorial staff to ensure quality scholarly research articles.
 
By using this site, you agree to the Terms of Use and Privacy Policy. World Heritage Encyclopedia™ is a registered trademark of the World Public Library Association, a non-profit organization.