The+Comstock+Act

Jonathan Cernok

** The Comstock Act **

**Introduction** The Comstock Act, named for Anthony Comstock, is a federal statute passed by the U.S. Congress in 1873 as an “Act of the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use” ("Comstock Act," 2011). The Comstock Act was motivated by growing societal concerns over obscenity, abortion, pre-marital and extra-marital sex, the institution of marriage, the changing role of women in society, and increased procreation by the //lower classes// ("Comstock law of (1873)," 2011).

** Background ** Congress first contemplated censorship of the U.S. Mail during the Abolitionist movement. In 1836 President Andrew Jackson sponsored a bill to prevent use of the mail to disseminate inflammatory Abolitionist tracts. The bill was rejected and 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 ("Comstock act (1873)," 2011). 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 ("Comstock act (1873)," 2011).

**Comstock’s Crusade** The driving force behind the original anti-birth control statutes was a New Yorker named Anthony Comstock. Born in rural Connecticut in 1844, Comstock served in the infantry during the Civil War, then moved to New York City and found work as a salesman. A devout Christian, he was appalled by what he saw in the city's streets. It seemed to him that the town wasteeming with prostitutes and pornography. In the late 1860s, Comstock began supplying the police with information for raids on sex trade merchants and came to prominence with his anti-obscenity crusade. Also offended by explicit advertisements for birth control devices, he soon identified the contraceptive industry as one of his targets. Comstock was certain that the availability of contraceptives alone promoted lust and lewdness ("People & events," 2001). The Comstock Act, passed by the U.S. Congress in 1873, criminalized the publication, distribution, and possession of information about or devices or medications for “unlawful” abortion or contraception. Individuals convicted of violating the Comstock Act could receive up to five years of imprisonment with hard labour and a fine of up to $2,000. The act also banned distribution through the mail and import of materials from abroad, with provisions for even stronger penalties and fines ("Comstock Act," 2011).

** The Most Restrictive State ** New England residents lived under the most restrictive laws in the country. In Massachusetts, anyone disseminating contraceptives -- or information about contraceptives -- faced stiff fines and imprisonment. But by far the most restrictive state of all was Connecticut, where the act of using birth control was even prohibited by law. Married couples could be arrested for using birth control in the privacy of their own bedrooms, and subjected to a one-year prison sentence. In actuality, law enforcement agents often looked the other way when it came to anti-birth control laws, but the statutes remained on the books ("People & events," 2001).

** Challenges to the Comstock Act ** The Comstock Act was first challenged in 1916 when contraception activist Margaret Sanger was arrested for opening America’s first birth control clinic. On appeal, the court concluded that physicians could distribute information on contraception to married women for “the cure and prevention of disease,” but ordinary citizens like Sanger could not. Twenty years later Sanger was again in court after the U.S. government seized a shipment of contraceptive diaphragms that she ordered from Japan. By this time contraceptives were widely distributed throughout the U.S., though still prohibited by the Comstock Act. The Court ruled that the importation of contraceptives was legal for medical purposes (//U.S. v. One Package//, 1936). The ruling allowed for the distribution of birth control devices by mail to physicians (Fieser, 2011). Still, the Comstock Act remained valid, along with similar State laws that banned contraception. Once such law was a Connecticut statute that made it a crime to use any drug or device to prevent conception. In 1961, two directors of Planned Parenthood were arrested and convicted in Connecticut after giving contraception information to a married couple. The case made its way to the Supreme Court, which overturned the conviction. Embedded in the Constitution, the Court argued, is a right to privacy that grants married couples the freedom to use contraception. In 1971 Congress finally rewrote the Comstock Act to remove mention of birth control, and a Supreme Court case the following year extended the right to use birth control to unmarried couples (//Eisenstadt v. Baird//, 1972) (Fieser, 2011).

**Supreme Court Cases Challenging Governments’ Role in Pornography** The Comstock Act banned the distribution of obscene material through the mail, as it did with contraception. Two Supreme Court decisions placed restrictions on how far governments can go in banning pornography. In //Stanley v. Georgia// (1969), the Supreme Court maintained that a person can possess and view pornography: a person has “the right to satisfy his intellectual and emotional needs in the privacy of his own home.” Governments have no business controlling peoples’ private thoughts: “Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds.” This, though, does not apply to the private possession of child pornography, which is specifically prohibited under both federal and state laws. While the personal possession of pornography is Constitutionally protected as a matter of liberty, the distribution of pornography is another matter, and the question is whether it is Constitutionally protected as a type of freedom of the press. In //Miller v. California// (1973) the Supreme Court said that it is not. States can rightfully prohibit the sale and distribution of obscene material when it meets three specific guidelines:
 * 1) Whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest . ..
 * 2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
 * 3) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (Fieser, 2011).

** The Comstock Act since //Roe v. Wade// ** Remnants of the Comstock Act endured as the law of the land into the 1990s. In 1971 Congress removed the language concerning contraception, and federal courts until Roe v. Wade (1973) ruled that it applied only to “unlawful” abortions. After //Roe,// laws criminalizing transportation of information about abortion remained on the books, and, although they have not been enforced, they have been expanded to ban distribution of abortion-related information on the Internet. In 1997 Representative Barney Frank of Massachusetts introduced legislation to repeal abortion-related elements of federal obscenity law rooted in the Comstock Act ("Comstock Act," 2011).

**Bibliography**

// Comstock act (1873) //. (2011). Retrieved from [|http://www.enotes.com/major-acts-congress/comstock-act] Comstock Act. (2011). In //Encyclopedia Britannica//. Retrieved from [] // Comstock law of (1873) //. (2011). Retrieved from [|http://law.jrank.org/pages/5508/Comstock-Law-1873.html] Fieser, J. (2011, January 15). //Sex (the practice of morality)//. Retrieved from [|http://www.utm.edu/staff/jfieser/class/160/2-sex.htm] // People & events: anthony comstock's "chastity" laws //. (2001). Retrieved from [|http://www.pbs.org/wgbh/amex/pill/peopleevents/e_comstock.html]