Why was the Comstock Act (1873) originally passed, and what are its long term effects to this day?
The Comstock Act of 1873 was enacted in an effort to regulate what the U.S. mail service would and would not legally transport: it was agreed by Congress that obscene and immoral material would not be transported by the U.S. mail. It was enacted to define and regulate obscene and immoral material and to prohibit business transactions in that material. It was enacted to counteract the physical, psychological and moral decay that resulted from the U.S. Civil War during which a new pornography market sprang up, due to the invention of cameras, alongside old war markets for socially inesteemable behaviors. The affects today include the provision of a continuing definition of obscene and immoral activities, though the definitions have been made contemporary in some regards. Many contemporary affects are muted because aspects of the Act are not enforced.
The Comstock Act of 1873
The Comstock Act was originally passed because a twenty-eight year old country man who moved to New York City was offended by the explicit advertisements he saw for contraceptive devices, which, in his perception, were part of the larger problem that made New York City after the Civil War a place "teeming with prostitutes and pornography" ("Anthony Comstock's 'Chastity' Laws," PBS). The Act was part of Comstock's larger crusade to help police raid the establishments of sex-trade merchants, a crusade that extended also to a correlated anti-obscenity crusade and an anti-contraception crusade. Following the Civil War, in which Connecticut native Anthony Comstock served, Comstock settled in New York with employment as a salesman. Having a rural upbringing and being a devout Christian man, he was dismayed to see the streets of New York teeming, as he perceived it, with prostitutes, pornographic items for sale, establishments of sex-trade merchants, and explicit advertisements for devices to prevent conception/pregnancy. Comstock believed these things to be seriously immoral and that contraception devices seemed to promote "lust and lewdness" (PBS). Comstock began to give the police information for raids on pornography and prostitution establishments; campaign against obscenity; crusade against contraception. Though Comstock's experience was with New York City, he lobbied for federal law regulating and criminalizing "Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use":
An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use. 1873
That whoever, within the District of Columbia or any of the Territories of the United States, ... shall sell, or lend, or give away, or in any manner exhibit, ... or shall otherwise publish or, ... shall have in his possession, for any such purpose or purposes, any 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 ... 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 for] stating when, where, how, or of whom, or by what means, any of the articles in this section hereinbefore mentioned, can be purchased or obtained, ... shall be deemed guilty of a misdemeanor, and, on conviction thereof in any court of the United States ... 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.
The Act banned sending any of the "hereinbefore mentioned" materials through the mail or across state lines. Twenty-four states, including Massachusetts and Connecticut, enacted state versions of the Federal Comstock Act of 1873 to outlaw contraception, pornography and prostitution.
Overview of Congressional Moral Legislation
Comstock's crusade and proposal of legislation to Congress was not the first attempt made at regulation of and censorship through the U.S. Mail. During the Abolitionist movement, President Andrew Jackson attempted unsuccessfully to win legislation in 1936 to prohibit the U.S. mail from disseminate Abolitionist tracts, which he considered to be inflammatory; the proposed legislation was seen by Congress as a violation of First Amendment rights (abridgement of free speech). In 1842 Congress did successfully amend the Tariff Act to add censorship provisions regarding materials that would be allowed to be sent through the mail; the amendment to the Tariff Act banned importation of material that was "obscene or immoral." Enforcement was ineffectual and made only a little improvement to the importation of obscene and immoral material that was regularly transported through the mail. In addition, the Tariff Act has no jurisdiction over American pornography passing through the mail. In 1865, Christian Commission, sponsored by the Young Men's Christian Association, or the YMCA, succeeded in lobbying for a provision attached to the 1865 post office bill. The provision provided that it would be a federal level misdemeanor, punishable up to $500 or a year in prison, to send "any obscene book, pamphlet, picture, print, or other publication of vulgar and indecent character" through the U.S. mail.
Anthony Comstock (1844-1915)
Anthony Comstock (1844-1915) was involved with the 1865 provision in two ways. During the Civil War he served as a soldier in the Union Army. As a devout Christian man, he was a member of the YMCA created Christian Commission that was responsible for lobbying Congress to add the prohibition against using the mail for the transportation of obscene material. As an active participant in the Commission while stationed in Florida, Comstock took part in crusades to keep his fellow soldiers away from atheism, gambling alcohol, prostitution and tobacco. After the war, when he had moved to New York City, he was surprised to find there the same problems he had crusaded against amongst the troops; he was surprised, in fact, to find that New York was instrumental in the dissemination of the obscene and immoral material addressed by the 1865 U.S. mail provision. What exactly was the problem at the hub of which lay New York City?
Wars have always been followed by what officers and officials in the Civil War came to call "public women" who provided prostitution soldiers. Gambling, alcohol, and smoking had equally long histories of corrupting the home-bred morality and conservatism of young soldiers. What was new was a modern form of male contraception with the introduction of rubber and Goodrich's application of it to male condoms. What was new was the flourishing U.S. contraceptive industry, at its height between 1844 and 1873, that provided female contraceptive syringe's, sponges, IUDs and diaghrams and information about abortions. What was new was photographic techniques that allowed photographic records of the war, of soldiers in uniform and of erotic and pornographic pictures of women engaged in commonplace activities or engaged in erotic activities. It was the pictures, informational tracts, penny novels, and contraceptive devices that were carried through the mail, first to soldiers and then to ex-soldiers and other citizens, that was new during the Civil War and afterwards and for which New York City provided the national hub.
Comstock was shocked into taking action when a friend of his was led into personal and moral ruin through the obscene novels, so readily available, that he read. With knowledge of the 1865 obscenity law and to defend the honor of his friend, Comstock bought an obscene book from the same book seller and took the book to the police as proof of the 1865 obscenity law. The precinct police captain allowed Comstock to accompany him when the police raided the book seller, arrested him and seized his books. Working with the YMCA and the New York Society for the Suppression of Vice (NYSSV), from whom he had financial backing, Comstock brought the issue of moral reform to the attention of the public, then together he and they were able to successfully lobby Congress to pass, enact and enforce the Comstock Act of 1873, which was signed into law by President Ulysses S. Grant on 3 March 1873.
Comstock Takes Action Against the Affects of Obscenity
Comstock's technique for proving obscenity law violations would be called entrapment today but was successfully employed in his own age. The Comstock Act expanded upon the law of 1865 by including the provision that the definition of obscenity include contraception and abortion: "any article whatever, for the prevention of conception, or for causing unlawful abortion,...." The penalties for first-time offenders violating the Comstock laws were up to $500 or five years imprisonment and for repeat offenders up to $1000 and ten years imprisonment. In the late 1800s, Congress came more and more to be thought of as the means by which to anchor and restore moral order in a rapidly changing American scene. With the Morrill Act of 1862, Congress had outlawed polygamy in Utah. In 1865, Congress had implemented new obscenity regulations. The much later 1910 Mann Act, which prohibited transporting female prostitutes across state lines, confirmed the motion begun in the 1800s of turning to Congress to legislate morality. In the late 1860s, the nation was trying to repair the physical, social, cultural, psychological and moral damage done by the Civil War. The nation was also feeling shock waves from Reconstruction and soaring levels of immigration. The expanding powers of Congress enabled crusaders to try to undo some of the harmful changes and to try to restore a social, psychological and moral balance to American life.
Comstock and the Comstock Act
Comstock doesn't seem an admirable person by today's standards of liberalization of moral strictures and prohibitions, but in his day he was rewarded for his service to a troubled nation by awarding him a position as Special Agent for the Post office invested with the power to enforce the Comstock Act. Proud of what was seen as his useful and constructive contribution, he said that in his position as special agent, he had been instrumental in the conviction of 4,000, enough people to fill sixty-one train cars. One of the most famous of Comstock Act prosecutions was the 1914 prosecution of nurse Margaret Sanger. She had devoted herself, thanks to financial support from Katherine McCormick, to finding a birth control pill for women to free them from the multiple dangerous and possibly unwanted pregnancies (her mother bore eleven children and died, physically exhausted, at the age of fifty). The publication of the monthly periodical The Woman Rebel and the pamphlet Family Limitation, which both gave information on birth control, caused Sanger to be arrested but she escaped to Europe before her trial date. Her husband, however, was convicted for distributing Family Limitation. Earlier, Ezra Heywood had been arrested in 1877 for publication of the anti-marriage, anti-Comstock Act book Cupid's Yokes, or, The Binding Forces of Conjugal Life. Heywood was fortunate enough to be pardoned by President Hayes in 1878.
Legal History Overview
The legal history of the Comstock Act begins with the attempt in 1878 by 70,000 signatories of a petition to gain a Congressional repeal of the Act. The Comstock Act is still on the Congressional law books, though, because of various Supreme Court decisions beginning in the 1930s, the Act was belatedly amended in 1971 to strike "the blanket prohibitions on the mailing of all advertisements for contraceptives" (Rierson) from its language. Yet, the ban on unsolicited advertisements for contraceptives was not struck until the 1983 Supreme Court ruling in Bolger v. Youngs Drug Products Corp that such a ban was unconstitutional. Despite the 1973 Supreme Court ruling in Roe v. Wade, the language in the Act against mailing and otherwise disseminating material related to abortion still remains intact. The Comstock Act is still seen as a vital part of American legislation since in 1994 Congress raised the fines for violating its provisions from $5,000 to $250,000 for first time offenders. In 1996, the Act's prohibitions against disseminating information on abortions was extended to cover information disseminated on the Internet. Bills in both Houses of Congress (the House of Representatives and the Senate) have been introduced and defeated that would have repealed the Act's provisions relating to abortion. In reaction to the 1996 amendments to the Act, Alexander Sanger of Planned Parenthood, New York City, brought a joint-plaintiff lawsuit to challenge the Act's amendments. The case was dismissed by the court because the U.S. government has not attempted to enforce the 1996 changes to the Act. Laws that are not enforced cannot successfully be challenged, indeed, until enforcement is attempted, if it ever is, there is no grounds for challenging the amended provisions of the Act.
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There are two main reasons why the Comstock Act was originally passed. These reasons are pornography and contraception. The Comstock Act was passed to combat both of these things which were as evil seen by some at that time. The Comstock Act has continues to have some impact today mainly because there are still attempts to regulate pornography.
In the time after the Civil War, there were people who were concerned about the growth in the industries of contraception and pornography. It was around this time that photography was becoming more widespread, opening up new means of creating pornography. At this time, there were also ads for contraception in some types of magazines and newspapers. People like Anthony Comstock felt that these things were evil. They felt that contraceptives encouraged people to be lustful because they allowed those people to engage in sexual activity with less risk of the woman becoming pregnant. They also felt that pornography encouraged lustfulness. They felt that contraceptives and pornography, therefore, made society less moral. This led them to push for acts such as the Comstock Act.
The Comstock Act prevented the possession or distribution of “obscene” materials. These included both pornography and information about contraception. The Comstock Act did not define what was obscene. This is the main way in which the Comstock Act continues to be important today. There are still attempts to ban some or all types of pornography. The idea behind this is that such materials are obscene and are therefore not protected by the First Amendment. Such attempts generally do not get very far, but the fact that they exist is due in part to the Comstock Act.
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