COMSTOCK LAW OF 1873
The Comstock Law of 1873 was a federal law
that made it a crime to sell or distribute materi-
als that could be used for contraception or
ABORTION, to send such materials or informa-
tion about such materials through the federal
mail system, or to import such materials from
abroad. It 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.
Following the bloodbath of the Civil War and
the emancipation of the slaves, many Americans
sought a return to simpler times, while other
Americans yearned for a nationwide spiritual
and moral revival.
But the United States was undergoing rapid
change during this period. The industrial revolution
was making a large number of jobs available
to members of both sexes, and women were
taking advantage of this opportunity by entering
the workforce in unprecedented numbers. The
United States was also experiencing a significant
wave of immigration. Some Americans complained
that the new immigrants were tainting
the moral fabric of the United States with their
radical political beliefs and their permissive attitudes
about sex.Members of the so-called upper
classes grew worried that members of the lower
classes were procreating at a faster rate, in part
because better educated, more affluent women
were postponing their childbearing years to lead
lives of their own choosing, free from the dictates
or needs of their fathers, husbands, or
children.
The AMERICAN MEDICAL ASSOCIATION
(AMA) voiced concern about abortion, not only
because of the danger to women, but also
because of the possibility of a woman overlooking
the duties imposed on her by the marriage contract.
The Catholic Church condemned abortion
and BIRTH CONTROL as twin evils. States began
enacting laws that made it more difficult to
DIVORCE and gave single people greater incentive
to marry.
In the middle of such local reform efforts in
New York City was twenty-nine-year-old
Anthony Comstock, head of the New York Society
for the Suppression of Vice (NYSSV). Established
in 1872, the NYSSV was financed by some
of the wealthiest and most influential New York
philanthropists. Comstock used their money to
lobby the New York State Legislature for laws
criminalizing pre-marital sex and ADULTERY,
among other moral vices. He also used their
money to lobby Congress for a law that would
implement his overall agenda.
In 1873 Comstock got his wish, when Congress
passed An Act for the Suppression of Trade
in, and Circulation of, Obscene Literature and
Articles of Immoral Use. March 3, 1873, ch. 258,
§ 2, 17 Stat. 599. Known popularly as the Comstock
Law, the statute’s avowed purpose was “to
prevent the mails from being used to corrupt the
public morals.” The Comstock Law made it a
crime to sell or distribute materials that could be
used for contraception or abortion, to send such
materials or information about such materials
in the federal mail system, or to import such
materials from abroad. Immediately after the
law was enacted, Comstock was appointed special
agent of the U.S. Post Office and given the
express power to enforce the statute. Comstock
held this position for the next 42 years.
Comstock claimed to have successfully prosecuted
more than 3,600 defendants under the
federal law and destroyed over 160 tons of
obscene literature in his role as special agent. At
first Comstock targeted what he considered to
be easy prey, mail-order services and low-rent
shops that sold cheaply produced photographs
of nude women. Typically poor and uneducated,
the defendants first prosecuted by Comstock
often failed even to present a defense on their
own behalf.
Comstock next targeted indecency in high
culture, prosecuting prominent art gallery owners
for selling European paintings containing
partially clad women. But Comstock’s attempted
CENSORSHIP of traditional art triggered a
groundswell of opposition. The New York Times
criticized Comstock for overreaching. By 1887
many mainstream Americans who had originally
supported the Comstock Law were now
reconsidering that support in light of countervailing
concerns over free speech. But Comstock
was not deterred, continuing to prosecute
alleged violators as they were made known to
him.
At the turn of the century, 24 states had
enacted their own versions of the Comstock
Act, many of which were more stringent than
the federal statute. The Comstock Law itself
was recodified and reenacted several times in
the twentieth century, and prosecutions for
violations of the federal statute continued even
as Americans became increasingly diverse and
tolerant. As a result, several challenges were
made to the constitutionality of the Comstock
Law, most of them on FIRST AMENDMENT
grounds. To the surprise of many observers, the
U.S Supreme Court continued to uphold the
Comstock Law into the 1960s. United States v.
Zuideveld, 316 F.2d 873, 875-76, 881 (7th Cir.
1963).
The fate of the Comstock Law began to
change, however, when the Supreme Court announced its decision in MILLER V. CALIFORNIA,
413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d
419 (1973). In Miller the Supreme Court ruled
that material is obscene if (1) the work, taken
as a whole by an average person applying contemporary
community standards, appeals to
the prurient interest; (2) the work depicts sexual
conduct in a patently offensive way; and
(3) the work, when taken as a whole, lacks
serious literary, artistic, political, or scientific
value. Although the Comstock Law was never
challenged on grounds that it violated the
Miller standards for obscenity, the Supreme
Court declared the law unconstitutional in
1983.
In Bolger v. Youngs Drug Products Corp., 463
U.S. 60, 103 S. Ct. 2875, 77 L. Ed. 2d 469 (1983),
the Supreme Court re-examined the reasons
underlying the Comstock Law (then codified at
39 USCA § 3001) in light of the First Amendment
standards governing commercial speech,
which allow the government to regulate false,
deceptive, and misleading advertisements if the
regulation is supported by a substantial governmental
interest. The Court concluded that the
Comstock Law did not meet this burden. The
government’s interest in purging all mailboxes
of advertisements for contraceptives is more
than offset, the Court said, by the harm that
results in denying the mailbox owners the right
to receive truthful information bearing on their
ability to practice birth control or start a family.
“We have previously made clear,” the Court
emphasized, “that a restriction of this scope is
more extensive than the Constitution permits,
for the government may not reduce the adult
population . . . to reading only what is fit for
children.”
CROSS-REFERENCES
Abortion; Adultery; American Medical Association; Birth
Control; Censorship; First Amendment; Freedom of Speech.
