COMSTOCK LAW
The Comstock Law (1873) was a federal anti-obscenity statute enacted by Congress after heavy lobbying by Anthony
Comstock (1844–1915), who became a special agent of the
U.S. Post Office to enforce its provisions. A Connecticut
native and Brooklyn dry-goods clerk, Comstock in 1872
persuaded the New York Young Men’s Christian Association to form a committee to combat the sexually suggestive
publications widely available in the city. In 1873, backed
by wealthy patrons, it became the New York Society for
the Suppression of Vice. The so-called Comstock Law
strengthened an 1842 federal ban on importing obscene
materials and an 1865 Congressional prohibition against
mailing such materials. The new law criminalized the
importing, mailing, or advertising of “obscene,” “lewd,” or
lascivious” books, pamphlets, prints, pictures, etc., as well
as materials or information relating to abortion or contraception. Ads promoting illegal lotteries were added to the
banned list in 1876. An early Comstock-Law victim, D. M.
Bennett, was jailed in 1878 for mailing Cupid’s Yokes, a
sex-reform pamphlet. Over the ensuing decades, Comstock
seized vast quantities of print material he deemed obscene,
ranging from risqué ephemera and racy magazines like the
Illustrated Police Gazette to classic erotica by the likes of
Boccaccio, Rabelais, and John Cleland (author of the 1750
pornographic classic Fanny Hill). Boston’s New England
Watch and Ward Society (1873) pursued similar objectives.
The prevailing definition of obscenity was that formulated by Lord Chief Justice Cockburn of England in Queen v.
Hicklin (1868): “[T]he test is this, whether the tendency of
the matter charged as obscenity [i.e., specific passages in a
longer work] is to deprave and corrupt those whose minds
are open to immoral influences and into whose hands a publication of this sort may fall.”
From the first, the Comstock Law roused criticism.
Thirty Congressmen voted against it. The National Liberal
League (1876), supported by the freethinker Robert Ingersoll and the historical writer James Parton, and dedicated to
fighting “the Comstock laws, State and National, and … the
wave of intolerance, bigotry, and ignorance which threatens
to submerge our cherished liberties,” secured fifty thousand
signatures on a petition urging Congress to repeal the federal measure.
Overall, however, the Comstock Law and numerous
state and local statutes modeled on it initially stirred little
protest. The anti-vice societies enjoyed the support of the
social elite and won praise from reformers, civic notables,
and religious leaders. The New York Charities Directory
regularly listed the Society for the Suppression of Vice, and
the Encyclopedia of Social Reform (1898) discussed Comstock favorably. Harvard’s Francis G. Peabody, a professor
of social ethics, praised the Watch and Ward Society in 1898
for protecting citizens from “the pestiferous evil which at
any time may come up into our faces, into our lives, into
our children’s lives.” Many authors, librarians, editors, and
journalists endorsed the censorship laws for suppressing
material that transgressed the prevailing genteel code.
While Comstock typically targeted obscure, furtively
distributed publications, well-known authors occasionally
fell under the ban, either through actual prosecution or the
fear of prosecution. In 1882, a Boston publisher cancelled a
planned edition of Walt Whitman’s Leaves of Grass, criticized for homoerotic tendencies, when a district attorney
threatened prosecution. In 1890, the postmaster-general
banned from the mails a newspaper serializing Leo Tolstoy’s
Kreutzer Sonata, a novel involving suspicions of adultery.
Several publishers rejected Stephen Crane’s Maggie: A Girl
of the Streets in the early 1890s; only after the success of
Crane’s The Red Badge of Courage (1895) did a publisher
(Appleton’s) issue an expurgated version of Maggie. Theodore Dreiser’s Sister Carrie, whose protagonist uses sex to
advance her career, was initially accepted by Doubleday
in 1900, but then effectively suppressed, as the publisher
technically fulfilled the contract by printing one thousand
copies but simply stored them away. Margaret Sanger fled
to England in 1914 after her publications advocating birth
control ran afoul of the Comstock Law.
But the cultural climate was changing. In “Obscene” Literature and Constitutional Law (1911) and subsequent essays
such as “Our Prudish Censorship Unveiled” (The Forum,
January 1914), the radical New York lawyer Theodore Schroeder vigorously attacked censorship. Obscenity laws violate
the First Amendment, Schroeder argued, because they discriminate “according to the subject matter discussed” or
“according to differences of literary style in expressing the
same thought.” The Comstock Law, he said, represented a
futile effort “to control the psycho-sexual condition of postal
patrons.” In 1913, Comstock’s organization failed in its
effort to suppress the novel Hagar Revelly by Daniel Carson
Goodman, a reform-minded physician intent on publicizing
the sexual exploitation of working women. Federal judge
Learned Hand, who heard the case, commented that Justice
Cockburn’s definition of obscenity, “however consonant …
with mid-Victorian morals,” bore little relation “to the understanding and morality of the present time.” Other cases confirmed the liberalizing trend.
Congress reformed the Customs Bureau’s censorship
practices in 1930 to assure greater First Amendment protection, and in a landmark Customs case of 1933, federal
judge John Woolsey cleared James Joyce’s novel Ulysses.
In 1943, with federal censorship practices under increasing scrutiny, a U.S. appeals court overthrew a post-office
effort to deny second-class mailing privileges to the men’s
magazine Esquire. The liberalizing trend culminated in
1957 when the U.S. Supreme Court, in the U.S. v. Roth and
Alberts v. California, liberalized the definition of obscenity. Henceforth, the high court ruled, a work must be judged
in its entirety, rather than by specific words or passages, and
according to “contemporary community standards” rather
than on the basis of undefined pejorative terms. Works with
“the slightest redeeming social importance,” the court held,
enjoyed a presumptive right to constitutional protection.
Under the Roth/Alberts standard, long-banned works such
as Fanny Hill, D. H. Lawrence’s Lady Chatterley’s Lover,
and Henry Miller’s Tropic of Cancer won First Amendment
protection. The Comstock Law continued to cast a long
shadow, and the struggle to define the obscene went on,
with mixed results. By the mid-twentieth century, however,
the once-vast scope of federal, state, and local obscenity
laws had, at least for the printed word, been very sharply
circumscribed.
Further Reading
Boyer, Paul S. Purity in Print: Book Censorship in America from
the Gilded Age to the Computer Age, 2nd ed. Madison: University of Wisconsin Press, 2002.
Broun, Heywood, and Leach, Margaret. Anthony Comstock:
Roundsman of the Lord. New York: A. & C. Boni, 1927.
Comstock, Anthony. Traps for the Young, Intro. by J. M. Buckley.
Whitefish, MT: Kessinger Publishing, 2005.
Horowitz, Helen Lefkowitz. Rereading Sex: Battles over Sexual
Knowledge and Suppression in Nineteenth-Century America. New York: Alfred A. Knopf, 2002.
Lewis, Felice Flanery. Literature, Obscenity and Law. Carbondale: Southern Illinois University Press, 1976.
Paul, James C.N., and Schwartz, Murray L. Federal Censorship:
Obscenity in the Mail. New York: The Free Press, 1961.
Tedford, Thomas L. Freedom of Speech in the United States. New
York: Random House, 1985.
Paul S. Boyer