Comstock laws
From The Art and Popular Culture Encyclopedia
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The Comstock Act, enacted March 3, 1873, was a United States federal law which amended the Post Office Act and 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. Collectively, these state and federal restrictions are known as the Comstock laws.
The Comstock laws 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 stepped far outside the bounds of his legal power, exerting a sort of legalized vigilantism.
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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 stepped 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. 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.
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, 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. 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.
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 which led to more widespread STDs among U.S. troops. 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.
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
