The Comstock Law at 150: A highly relevant cautionary tale for today

150 years ago today, President Ulysses S. Grant signed A bill for the suppression of trade in, and circulation of, obscene literature and articles of immoral use. 

Better known as the Comstock Act, this was the first federal law to make “obscene” literature illegal with provisions for prosecution. Actively enforced for 100 years, the law granted unprecedented and sweeping powers to government officials to search people’s private mail, to confiscate and destroy published materials and to fine and imprison writers and booksellers, as well as anyone found in possession of material deemed illicit.

Now, this antiquated law and its censorious consequences are becoming increasingly relevant — a cautionary tale in today’s climate of book bans and educational censorship. Across the country, conservative activists are trying in various ways to resurrect it, seeking to suppress anything viewed as “immoral” through the lens of evangelical Christianity. 

In state after state, legislative proposals are being advanced to prohibit books on sexuality and gender from being made available in schools or even purchased with public funds. Some states have already passed laws that threaten teachers and librarians with new penalties if they make such books available to students, and at least 12 more are considering similar bills this year. In Tennessee, Gov. Bill Lee (R) has signed a law to ban drag performances on public property or anywhere they could be viewed by minors. In Florida, lawmakers are proposing eliminating gender studies from the college curriculum altogether. 

Why is this happening now? Historical parallels are telling. 

The winter of 1872-1873, similar to today, was a period of political upheaval and economic uncertainty. The 42nd Congress was embroiled in a scandal involving bribes to Republican legislators who supported government investment in a scam company known as the Crédit Mobilier of America, which paid out investors and politicians with federal dollars. The fallout in part led to the economic “Panic of 1873.” 

Evangelical activists, including Anthony Comstock, were happy to help Republican legislators distract Americans from their anger and frustration. Then —  as now — they were well placed to help. Associate Justice William Strong helped Comstock draft the language of the bill. From 1868 to 1873, in the same years he served on the United States Supreme Court, Strong also was president of the National Reform Association, which lobbied, albeit unsuccessfully, for an amendment to the Constitution to include reference to God and Jesus in the preamble.

The language of the Comstock Act, as is the case with similar bills today, was intentionally vague: It permitted the government to prohibit “obscene, lewd, lascivious, indecent, or immoral” material — but contained no definitions for these terms. Comstock himself was appointed as a special agent of the U.S. Postal Service and was given a free hand to determine what materials were subject to confiscation and prosecution. He used his own religious beliefs to decide on legality. 

The results were devastating.

During the Comstock Law’s reign, millions of books, newspapers, magazines, prints, photographs and circulars were burned under court order. More than 3,000 persons arrested for violations of the Comstock Act served a total of 600 years in prison, most for writing about topics that today are widely accepted in society, including atheism, homosexuality and sexual health. Medical professionals writing about abortion or contraception were prosecuted, as well as ‘freethinkers’ who believed in the separation of church and state. Gilded Age freethinker and editor D.M. Bennett was imprisoned for ‘crimes’ including advocating for equality of the sexes. 

Perhaps even worse than these egregious prosecutions are the myriad instances of self-censorship generated by fear of violating the murky provisions of the law. We will never know what intellectual and creative advances were silenced due to the fear of prosecution at the hands of a religious zealot.

Today’s bills either contain similarly vague language or the political rhetoric surrounding them gives the impression that speech will be regulated using new penalties. 

A law passed in Utah last year did not change existing statutes about what constitutes obscene material or the distribution of materials deemed harmful to minors. Nonetheless, anxiety regarding its provisions has had the effect of pressuring school districts to ban books with any sexual content, like “Forever” by Judy Blume, “The Handmaid’s Tale” by Margaret Atwood and “I Am Not Your Perfect Mexican Daughter” by Erika Sanchez. A similar law in Missouri that has stated exceptions for schools to retain books with scientific, anthropological, or educational significance, has likewise led to the banning of books of photography and graphic novels, and the temporary removal of books about art history. 

These new bills have gained momentum in the past two years by targeting schools, with their proponents saying they are necessary to “protect” minors. But the willingness to censor that has undergirded their advance is quickly expanding to impact the entire public sphere. And as for the language of “protection?”  It’s the same justification for suppression once used by Comstock, who wrote in 1883: “Our youth are in danger; mentally and morally they are cursed by a literature that is a disgrace . . . I unhesitatingly declare, there is at present no more active agent employed by Satan in civilized communities to ruin the human family and subject the nations to himself than EVIL READING.” 

There is celebratory as well as cautionary history to be gleaned from studying the Comstock Act. Initial attempts to repeal it were unsuccessful, but over time courts recognized its unconstitutional infringements on free speech and due process rights. As a result, it has been essentially dormant for the last 50 years, since the Supreme Court in Miller v. California (1973) significantly narrowed federal obscenity prosecutions. But its legacy lives on, showing how the machinery of the state can be easily weaponized as a tool of vast censorship. 

The politics of today’s culture wars are similar to when Comstock first gained support. Some politicians appear to see more to gain from taking on drag queen story hours than talking about insurrectionists, Russian aggression, climate change or gun violence. 

The Comstock era provides a vital lesson for the current moment: That to protect the expressive liberties that Americans cherish, we must guard against efforts by any politicians to install themselves as arbiters of morality for all. A vibrant, pluralistic and democratic society requires that we uphold our fundamental civil liberties and reject the Comstocks of every era.

Jonathan Friedman is the director of Free Expression and Education Programs, PEN America. Amy Werbel is the author of “Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock.”