The Comstock Act of 1873 made it illegal to send “obscene, lewd or lascivious,” “immoral,” or “indecent” publications through the mail. The law also made it a misdemeanor for anyone to sell, give away, or possess an obscene book, pamphlet, picture, drawing, or advertisement.
The breadth of the legislation included writings or instruments pertaining to contraception and abortion, even if written by a physician. Although officially titled An Act for the Suppression of Trade In, and Circulation of, Obscene Literature and Articles of Immoral Use, the statute did not provide a definition of obscenity.
Congress adopted the Comstock Act in response to the proliferation of obscene materials in the 1870s. Anthony Comstock, head of the New York Society for the Suppression of Vice, had shown members of Congress illustrations that he considered obscene and urged legislators to pass the measure to prevent crime and corruption of children.
Anthony Comstock arrests individuals under the new obscenity law
After Congress passed the bill, it designated Comstock as a special agent in the United States Post Office charged with enforcing the law. With the help of his New York Society for the Suppression of Vice, Comstock was able to arrest individuals under the new act.
In the 1870s, Ezra Heywood, a feminist who studied women’s role in society, wrote Cupid’s Yokes, in which he asserted that women should have the right to control their own bodies. Comstock considered this obscene and arrested Heywood.
He also arrested De Robigne Mortimer Bennett, a libertarian, after he received a copy of Cupid’s Yokes from him through the mail. During Bennett’s federal trial, the judge denied the defense’s motion to show the jury the entire work, insisting that only the isolated passages charged as obscene were pertinent.
The judge applied the Hicklin test from the British decision in Regina v. Hicklin (1868): “I think the test is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to immoral influences, and into whose hands a publication of this sort may fall.” The federal courts followed this standard until 1933, when Judge John M. Woolsey focused on the literary value of the entire work of James Joyce’s Ulysses, rather than a few passages, in United States v. One Book Entitled Ulysses (S.D.N.Y. 1933).
Petitioners ask Congress to repeal the law but are refused
In 1878, the National Liberal League and the National Defense Association presented Congress with a petition signed by more than 50,000 people requesting repeal of the Comstock Act.
The petitioners argued that its anti-obscenity provisions had been “enforced to destroy the liberty of conscience in matters of religion, against the freedom of the press and to the great hurt of the learned professions.” The House Committee on the Revision of Laws denied the appeal because the post office had not been established
to mail obscene writings, indecent pictures, or lewd books.
Comstock Act ban on birth control information overturned
Comstock vigorously enforced the sections in the act that dealt with birth control. Numerous doctors suffered arrest and conviction for supplying written materials explaining pregnancy and how to prevent it. This concerned social reformers because it prevented women from controlling the size of their families, a particular hardship for those with small incomes.
Activist Margaret Sanger lobbied for overturning the act’s birth control provisions, which the courts did in United States v. One Package (2d Cir. 1936). This decision made it possible for doctors legally to mail birth control devices and information throughout the country.
This article was originally published in 2009. Brandon R. Burnette is an Associate Professor at Southeastern Oklahoma State University as the Government Documents/Reference Librarian. He is an author of a three-part series of articles entitled “Historic Indian Publications by the US Federal Government,” DTTP: Documents to the People (2015).