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Photograph of Anthony Comstock (1844-1915) – Public Domain

The ruling by U.S. District Judge Matthew Kacsmaryk, a Trump appointee in Texas, to rescind the Food and Drug Administration’s 2000 approval of mifepristone, the most common medication abortion protocol, is grounded in the now long forgotten Comstock Act (1873). It’s a perfect time to recall the legacy of Anthony Comstock (1844-1915).

The social and economic changes that followed the Civil War were traumatic and far-reaching. In the face of these challenges, a powerful movement emerged that attempted to contain the forces that were perceived as threatening moral order. It railed against vice in every form, be it alcohol consumption, gambling, prostitution, birth control or obscenity in the arts.

The Young Men’s Christian Association (YMCA) and the Women’s Christian Temperance Alliance (WCTA), among others, championed this movement. Its national leader was the ever-upstanding Anthony Comstock. So influential was this former dry-goods salesman that George Bernard Shaw coined the term “Comstockery” to denote overzealous moralistic officials.

In 1868, just three years after the end of the Civil War, the movement secured its first major victory when the New York State legislature passed an incredibly broad law to suppress what was described as “obscene” materials. The law defined obscene to include all materials and devices that dealt with conception, birth control and other sexual matters, be they medical or erotic.

Five years later, the movement was strong enough to have the U.S. Congress enact what became popularly known as the Comstock law, legislation that stands as the most sweeping, omnibus anti-obscenity law in American history. The law, in effect, extended New York State prohibitions to all interstate commerce and communications. It covered nearly every form of exchange then known or anticipated:

… no obscene, lewd, or lascivious book, pamphlet, picture, paper, print, or other publication of an indecent character, or any article or thing designed or intended for the prevention of conception or procuring of abortion, nor any article or thing intended or adapted for any indecent or immoral use or nature, nor any written or printed card, circular, book, pamphlet, advertisement or notice or any kind giving information, directly or indirectly, where, or how, or of whom, or by what means either of the thing before mentioned may be obtained or made, nor any letter upon the envelope of which, or post-card upon which indecent or scurrilous epithets may be written or printed, shall be carried in the mail …

Comstock was appointed a special officer of the U.S. postal system and given the power to seize what he labeled as obscene materials as well as arrest those he identified as pornographers.

The law was so effective that within the first six months of passage, Comstock boasted that it led to the seizure of 194,000 pictures and photographs, 14,200 stereopticon plates and 134,000 pounds of books and other media. In the 1910s near the end of his life, Comstock claimed that he had destroyed 3,984,063 photographs and 160 tons of “obscene” literature.  The law would remain in force until the mid-1930s, when it was partially reversed by the Supreme Court with regard to medical and scientific materials. It would take another three decades until literature and art were given comparable freedom.

Sex scandals followed Comstock everywhere he went during the nearly half-century he fought to restrict both sexual expression and sexual experience. His battles involved a wide range of issues, including birth control and purported obscenity. However, the confrontations receiving the most public attention involved his battles with Victoria Woodhull and her sister, Tennessee Claflin; Walt Whitman; and Madam Restell, America’s foremost 19th century abortionist.

One of America’s great post-Civil War matchups pitted the country’s leading moral crusader, Comstock, against two indomitable free-love and free-speech advocates, Woodhull and Claflin. Woodhull was an advocate for the end to traditional, patriarchal marriage; Thomas Nast, the great 19th century illustrator, dubbed her “Mrs. Satan.” Their publication, the Woodhull & Claflin’s Weekly, generated a national stir with its frank discussions of forbidden topics like women’s suffrage, prostitution, sex education and short skirts. In 1872 Woodhull ran for president of the U.S. on behalf of the Equal Rights Party; the party drafted the absent Frederick Douglass for vice president.

The showdown between Comstock and the Woodhull-Claflin sisters occurred when they published a story about an illicit sexual relation involving the Rev. Henry Ward Beecher. He was one of America’s leading theologians, bishop at Brooklyn’s Plymouth Congregational Church, a role analogous to that played by Jim Bakker in the 1980s and Ted Haggard before his outing in 2006. In 1872, the Weekly exposed the details of an affair between the good pastor and one of his parishioners, Mrs. Elizabeth Tilton.

Comstock had the sisters arrested, not because of Rev. Beecher’s hypocrisy, but because information about his dastardly deeds was available for everyone to read. Both New York and federal authorities charged them with circulating obscene materials. At their trial, the sisters were acquitted when the judge noted that the original Comstock law did not cover newspapers. After more than a year of legal wrangling in which the sisters were repeatedly imprisoned, Woodhull and Claflin were set free, their lives ruined, and the obscenity loophole closed.

Another memorable scandal of the Gilded Age involving free speech pitted Comstock against Walt Whitman, America’s greatest voice of creative and sexual freedom. Comstock repeatedly attempted to stop Whitman’s creative expression. He had long hated Whitman’s verse, once insisting that he had never read more than forty lines of his poetry. He also bragged that he had personally intervened to force Whitman out of his position at the Department of Interior during the Civil War. In a confrontation in the early-1880s, Comstock arrested Ezra Heywood for mailing a publication that included two Whitman poems and a contraceptive device called “The Comstock Syringe.”

Whether or not it’s true that Comstock never read more than forty lines of Whitman, the censor was obsessed by the poet’s erotic sensibility. In 1881, while he was persecuting Heywood, Comstock assisted Boston District Attorney Oliver Stevens in an effort to suppress the publication of Leaves of Grass by the Boston publisher, James R. Osgood & Co. Aided by the New England Society for the Suppression of Vice, Stevens formally requested that Osgood edit the manuscript, removing what he—and Comstock—considered obscene passages. Ironically, Leaves had been originally published in 1855, 28 years earlier. Osgood requested changes from Whitman, who refused. Osgood pulled the book; America’s greatest work of verse was suppressed.

The suppression of Leaves of Grass precipitated a fierce national scandal over freedom of expression. While many among “better” society shared Comstock’s concerns about vice, they had second thoughts because it was Whitman. He was the author of “Oh Captain, My Captain,” the nation’s great ode to the fallen Lincoln, a figure who remained part of the living memory of many. Like Einstein a century later, Whitman symbolized wisdom and humility. Charges against Leaveswere ultimately dropped, as part of one of Heywood’s not-guilty decisions.

The U.S. government has not been above using the old Comstock law when it needed to. For example, as Attorney General, Robert Kennedy relied upon it in his victorious 1962 censorship battle against Ralph Ginsburg and Eros magazine.

Over the last century, the Supreme Court has repeatedly moved to restrict the Comstock laws with regard to contractive use.  In U.S. vs One Package, (1936), Margaret Sanger lobbied to made it possible for doctors to legally mail birth control devices and information throughout the country.  In Griswold v. Connecticut (1965), it overturned the provision prohibited “obscene” materials from the mail, i.e., the sending of contraception information and materials to married couples; it followed-up with Eisenstadt v. Baird (1972) that extended contraceptive use to unmarried couples.

It’s time to final put the Comstock law into the dustbin of history.


This content originally appeared on CounterPunch.org and was authored by David Rosen.

Citations

[1] 18 U.S. Code § 1461 - Mailing obscene or crime-inciting matter | U.S. Code | US Law | LII / Legal Information Institute ➤ https://www.law.cornell.edu/uscode/text/18/1461[2]https://www.cato.org/policy-analysis/new-age-comstockery-exon-vs-internet[3] Walt Whitman's America by David S. Reynolds: 9780679767091 | PenguinRandomHouse.com: Books ➤ https://www.penguinrandomhouse.com/books/140730/walt-whitmans-america-by-david-s-reynolds/[4] What Wild Ecstasy | Book by John Heidenry | Official Publisher Page | Simon & Schuster ➤ https://www.simonandschuster.com/books/What-Wild-Ecstasy/John-Heidenry/9780743241847[5] United States v. One Package, 86 F.2d 737 (2d Cir. 1936) :: Justia ➤ https://law.justia.com/cases/federal/appellate-courts/F2/86/737/1567252/[6]https://www.oyez.org/cases/1964/496[7]https://www.oyez.org/cases/1971/70-17