Note: A version of this first appeared on this blog one year ago today.
On March 3, 1873 Congress approved the Comstock Act. Named for anti-vice zealot Anthony Comstock the law was an amendment to the Post Office Act.
Although the sale and distribution of pornography had long been illegal under federal and most state laws, the Comstock Act tightened restriction not only on pornography, but on birth control information and advocacy with the imposition of harsh penalties and expanded enforcement.
Comstock, the architect of this act, and similar legislation soon enacted in 24 states, was a Connecticut Yankee born in 1844 into the seriously Puritanical Congregational Church that dominated the state. As a young soldier in the Civil War he was mortified by the common and routine profanity of his fellow troops. He vowed to dedicate himself to “purifying” American morals. He started his reform efforts as a worker for the New York City Young Men’s Christian Association (YMCA.) He became noted for his exposes of vice and pornography and for his many speeches and lectures on the subject.
He also became adept at leveraging the Protestant clergy and women’s reform societies into real political power. In a way he was recreating the once nearly absolute civic power of the Black Legion of orthodox clergy that dominated Connecticut and other parts of New England in the early 19th Century.
Early in 1873, Comstock established, with great fanfare and the approving notice of press, his New York Society for the Suppression of Vice. Its directors and prominent supporters were a whose-who of power preachers, major public figures, and the city’s social elite. Armed with those names, Comstock found it ridiculously easy to hustle Congress into approving the act that he personally drafted virtually word for word. What politician, after all, could afford to go on record as voting for obscenity and pornography?
The act read:
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 quickly got himself appointed as a Postal Inspector and using his New York society as shock troops was soon very busy rooting out and prosecuting vice as he understood it. His definition of pornography was very broad and his reach long. He had medical text books banned from the mails because of anatomical illustrations. Even the most oblique reference to sex was apt to attract his attention. Particularly vulnerable were magazines, newspapers, pamphlets and tracts, which all relied on the mails for distribution. Among his early targets were Victoria Woodhill and Tennessee Claflin, two pioneering feminists whose newspaper championed free love.
Although he spent time chasing penny-ante smut peddlers and even the purveyors of popular publications like the Police Gazette, Comstock dedicated a huge amount of energy combating the dissemination of contraceptives, any information about them, and abortion.
In 1902 Comstock secured a conviction of Ida Caddock, an eccentric former Quaker and Unitarian and author of tracts that combined mysticism and “marriage manuals” of sexual practices. He had been relentlessly pursuing her for five years, since she had published a defense of the belly dancer Little Egypt who had appeared at the World’s Columbian Exhibition in Chicago. Comstock had her re-arrested after serving a three month’s sentence for distribution of pornography and prosecuted her again under the Comstock Act, securing a conviction and full five year sentence. Caddock committed suicide the day before she was to begin her sentence leaving behind a lengthy note condemning her persecutor.
Far from being taken aback, Comstock reveled in the publicity. In fact he publicly boasted that his efforts had led to fifteen suicides.
Later also attacked Anglo-Irish playwright George Bernard Shaw when he attempted to ban circulation of copies of his play Mrs. Warren’s Profession, a play with a frank discussion of prostitution. When the play opened on Broadway in 1905 Comstock’s forces raided the theater and arrested the cast. Shaw heaped scorn on his foe, “Comstockery is the world's standing joke at the expense of the United States. Europe likes to hear of such things. It confirms the deep-seated conviction of the Old World that America is a provincial place, a second-rate country-town civilization after all.”
Also targets of his early 20th Century campaigns were birth control advocate Margaret Sanger and Emma Goldman.
Despite his continued zeal, Comstock was loosing some support from the elite from whom he had previously drawn almost unanimous praise. Educated and cultured individuals were increasingly embarrassed by his censorship of widely respected and admired literature and art. A fledgling civil liberties movement also was growing in influence and beginning to get support in some courts with defenses of cases on the grounds of freedom of speech and the press. More than anything else, public taste soon embraced much of what would have been considered obscene only a few years before.
In his later years Comstock often complained about being vilified in the press, but he kept up his work undeterred. Before he died in 1915 he was responsible for the destruction of 15 tons of books, 284,000 pounds of printing plates, nearly 4,000,000 pictures, and 4,000 arrests.
Federal and state obscenity laws remain on the books, although distribution of information on contraception was ruled legal in a 1935 case involving Sanger. The standard for determining obscenity has evolved. In the 1954 case Roth v. United States the Supreme Court upheld the Comstock act but set a new standard for defining obscenity as material “…utterly without redeeming social importance…whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.”
Using this squishy definition and rapidly evolving “community” standards, today virtually the only pornography being prosecuted by Federal Authorities involves children or minor or the notorious “snuff” films purporting to portray on screen murder.
Pornography is now an industry reaping billions of dollars. The internet has ended virtually all possibility of regulating distribution. It is really a case of the victory of mass public refusal to obey the old rules and laws. As more than one person has noted, rigid prosecution under the Comstock Act using the standard of even a couple of decades ago would result in the imprisonment of more than half the men in the country.