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Comstock Law of 1873

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The Comstock Law of 1873 was a federal law that 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 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."

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