View source for Comstock Act of 1873

{{short description|United States anti-obscenity law}}
{{Use mdy dates|date=June 2024|cs1-dates=l}}
{{Infobox U.S. legislation
| shorttitle = Comstock Act of 1873
| longtitle = Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use
| nickname = Comstock Act of 1873
| enacted by = 42nd
| announced in = <!--like "enacted by" but for proposed/unpassed legislation-->
| effective date = 
| cite public law = 42-258
| cite statutes at large = ch. 258, {{USStat|17|598}}
| acts amended = Sec. 148 of an [[Act to revise, consolidate, and amend the Statutes relating to the Post-office Department]]
| acts repealed = 
| title amended = <!--US code titles changed-->
| sections created = {{USC|18|552}}, {{USC|18|1462}}, {{USC|19|1305}}, {{USC|39|3001}}(e)
| sections amended = {{USC|18|1461}}
| leghisturl = 
| introducedin = [[United States Senate|Senate]]
| introducedbill = {{USBill|42|S.|1572}}
| introducedby = [[William Windom (politician)|William Windom]] ({{uspolabbr|R|MN}})
| introduceddate = February 11, 1873
| committees = [[Committee of the Whole (United States House of Representatives)|Committee of the Whole]] and the [[United States House Committee on Post Office and Post Roads|Committee on Post Offices and Post Roads]]
| passedbody1 = Senate
| signedpresident = [[Ulysses S. Grant]]
| signeddate = March 3, 1873
| amendments = * Act of February 8, 1897, ch. 172, 29 Stat. 512
* Criminal Code Act of 1909, ch. 321, 35 Stat. 1088, 1129
* [[Tariff Act of 1930]], Pub. L. 71–361, ch. 497, 46 Stat. 590
* [[Postal Reorganization Act of 1970]], Pub. L. 91-375, 84 Stat. 719
* Contraception Mail Prohibition Removal Act of 1970, Pub. L. 91-662, 84 Stat. 1973
* [[Child Protection and Obscenity Enforcement Act of 1988]], Pub. L. 100–690, title VII, subtitle N, 102 Stat. 4500
* [[Violent Crime Control and Law Enforcement Act of 1994]], Pub. L. 103-322, 108 Stat. 1796
* [[Telecommunications Act of 1996|Communications Decency Act of 1996]], Pub. L. 104-104, title V, 110 Stat. 56
| SCOTUS cases = {{ubl|''[[Ex parte Jackson]]'', 96 U.S. 727 (1878)|''Grimm v. United States'', 156 U.S. 604 (1895)|''Swearinger v. United States'', 161 U.S. 446 (1896)|''Bartell v. United States'', 227 U.S. 427 (1913)|''United States v. Limehouse'', 285 U.S. 424 (1932)|''[[Roth v. United States]]'', 354 U.S. 476 (1957)|''[[One, Inc. v. Olesen]]'', 355 U.S. 371 (1958)|''[[Manual Enterprises, Inc. v. Day]]'', 370 U.S. 478 (1962)|''[[Ginzburg v. United States]]'', 383 U.S. 463(1966)|''Redmond v. United States'', 384 U.S. 264 (1966)|''[[United States v. Reidel]]'', 402 U.S. 351 (1971)|''[[United States v. Thirty-Seven Photographs]]'', 402 U.S. 363 (1971)|''[[United States v. 12 200-ft. Reels of Film]]'', 413 U.S. 123 (1973)|''United States v. Orito'', 413 U.S. 139 (1973)|''Hamling v. United States'', 418 U.S. 87 (1974)|''[[Marks v. United States]]'', 430 U.S. 188 (1977)|''Smith v. United States'', 431 U.S. 291 (1977)|''Ward v. Illinois'', 431 U.S. 767 (1977)|''Pinkus v. United States'', 436 U.S. 293 (1978)|''Bolger v. Youngs Drug Products Corp.'', 463 U.S. 60 (1983)|''Alexander v. United States'', 509 U.S. 544 (1993)}}
| statsvol = 17
| passeddate1 = February 21, 1873
| passedvote1 = [[unanimous consent]]
| passedbody2 = House
| passeddate2 = March 1, 1873
| passedvote2 = without objection
}}
The '''Comstock Act of 1873''' is a series of current provisions in federal law that generally criminalize the involvement of the [[United States Postal Service]], its officers, or a [[common carrier]] in conveying [[United States obscenity law|obscene matter]],<ref>{{Cite web |date=2015-05-26 |title=Citizen's Guide To U.S. Federal Law On Obscenity |url=https://www.justice.gov/criminal/criminal-ceos/citizens-guide-us-federal-law-obscenity |access-date=2024-06-12 |website=[[United States Department of Justice]] |language=en}}</ref> crime-inciting matter, or certain [[abortion]]-related matter.<ref>{{Cite web |title=18 USC 1461: Mailing obscene or crime-inciting matter |url=https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section1461&num=0&edition=prelim |access-date=2024-06-13 |website=[[United States Code]] |publisher=[[Office of the Law Revision Counsel]]}}</ref> The Comstock Act is largely codified across [[title 18 of the United States Code]] and was enacted beginning in 1872 with the attachment of a [[Rider (legislation)|rider]] to the [[Post Office Consolidation Act of 1872]].<ref name=":2" /> Amended multiple times since initial enactment, most recently in 1996,<ref name=":15" /> the Act is nonetheless often associated with [[United States Postal Inspection Service|U.S. Postal Inspector]] and anti-[[vice]] activist [[Anthony Comstock]].<ref>{{Cite web |last=Brandon |first=Burnette |date=June 21, 2024 |orig-date=January 1, 2009 |title=Comstock Act of 1873 |url=https://firstamendment.mtsu.edu/article/comstock-act-of-1873/ |url-status=live |archive-url=https://web.archive.org/web/20240628144244/https://firstamendment.mtsu.edu/article/comstock-act-of-1873/ |archive-date=June 28, 2024 |access-date=2024-05-31 |website=The Free Speech Center |publisher=[[Middle Tennessee State University]] |language=en-US}}</ref>

The law was applied broadly for much of its history, before the scope of enforcement narrowed after various court rulings, and modern enforcement is primarily focused on prosecuting [[child pornography]] (with the most recent conviction under the Act being made in 2021).<ref name=":16">{{Cite web |date=October 12, 2022 |title=United States v. Arthur, No. 21-50607 (5th Cir. 2022) |url=https://law.justia.com/cases/federal/appellate-courts/ca5/21-50607/21-50607-2022-10-12.html |url-status=live |archive-url=https://web.archive.org/web/20240601083252/https://law.justia.com/cases/federal/appellate-courts/ca5/21-50607/21-50607-2022-10-12.html |archive-date=June 1, 2024 |access-date=2024-06-01 |website=Justia Law |publisher=[[United States Court of Appeals for the Fifth Circuit]] |language=en |via=[[Justia]] |quote=A jury convicted Thomas Alan Arthur of...five  counts of using an  interactive computer  service  to  transport  obscene matters, in violation of 18 U.S.C. § 1462(a)...}}</ref><ref name=":18">{{Cite web |last=Pedroja |first=Cammy |date=2021-06-22 |title=Texas Man Sentenced to 40 Years For Website of Stories About Child Abuse |url=https://www.newsweek.com/texas-man-sentenced-40-years-running-website-stories-about-raping-murdering-children-1603191 |url-status=live |archive-url=https://web.archive.org/web/20240601140504/https://www.newsweek.com/texas-man-sentenced-40-years-running-website-stories-about-raping-murdering-children-1603191 |archive-date=June 1, 2024 |access-date=2024-06-01 |website=Newsweek |language=en}}</ref>

== Text ==
=== Preface ===
The majority of the Comstock Act is found in sections 1461 and 1462 of chapter 71, [[title 18 of the United States Code]]. The rest of chapter 71, title 18, United States Code, consists of various provisions from the [[Child Protection and Obscenity Enforcement Act of 1988]]{{Efn|18 U.S.C. § 1460, 18 U.S.C. § 1465, 18 U.S.C. § 1466, 18 U.S.C. § 1467, 18 U.S.C. § 1468, and 18 U.S.C. § 1469 were added to chapter 71 by the Child Protection and Obscenity Enforcement Act.|group=note|name=CPOEA}} and the [[PROTECT Act of 2003]].{{Efn|18 U.S.C. § 1466A was added to chapter 71 by the PROTECT ACT.|group=note}}

=== 18 U.S.C. § 1461 ===
The first of the two sections of the Comstock Act which are contained under chapter 71, title 18, United States Code, is [https://www.law.cornell.edu/uscode/text/18/1461 section 1461]. This is the initial Comstock Act provision, as currently amended, and it was first enacted as a rider under Sec. 148 of the [[Post Office Consolidation Act of 1872]].<ref name=":2">{{Cite web |title=U.S. Statutes at Large, Volume 17 (1871-1873), 42nd Congress. |url=https://www.loc.gov/item/llsl-v17/ |access-date=2024-05-31 |website=Library of Congress, Washington, D.C. 20540 USA |pages=344, 641, and 642 }}</ref> The punishment for violating section 1461 is either a fine, a jail sentence of up to 5 years for a first offense, a jail sentence of up to 10 years for any subsequent offense, or a combination of a jail sentence and a fine, as is stated in its text.<ref name=":12" />

There exists two elements to an offense under section 1461. First, it must relate to that described; chiefly, either obscene or pertaining to abortion. Second, a person must ''knowingly'' mail, cause to be mailed, or remove from the mail, anything specified. The following is a brief summary of the matters covered:

# An ''obscene article.''{{Efn|"Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance...".|group=note}}
# An ''article'' ''designed, adapted, or intended'' for obscene or ''abortion-causing'' purposes.{{Efn|"Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use...".|group=note}}
# An ''article'' ''advertised or otherwise described in a manner calculated to lead to its application'' for obscene or ''abortion-causing'' purposes.{{Efn|"Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose...".|group=note}}
# ''Mail matter'' giving information as to ''who, what, where, or how'' an ''article'' (either designed, adapted, intended for use or described in a manner to calculated to incite its use for obscene or ''abortion-causing'' purposes) may be ''obtained or made.''{{Efn|This comes from the first half of one of the unnumbered subsections: "Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made...".|group=note}}
# ''Mail matter'' giving information as to ''from who, where, how, or by what means an act or operation'' for abortion may be ''procured or produced''.{{Efn|This comes from the second half of the un-numbered subsection referred to in point 4: "....or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed...".|group=note}}
# ''Mail matter'' ''advertising or representing'' as to ''whether or by what means'' an ''article'' may be ''applied'' for obscene or ''abortion-causing'' purposes.{{Efn|"Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose...".|group=note}}
# ''Mail matter calculated to incite'' use of an ''article'' for obscene or ''abortion-causing'' purposes.{{Efn|"Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing...".|group=note}}
There are a number of implications with these specifics listed in 18 U.S.C. § 1461.

First, as summarized in points 1, 2, and 3 above, this section outright criminalizes activities related to the mailing of three categories of objects and to this extent has been upheld as constitutionally valid by the Supreme Court.<ref name=":4" /><ref name=":3" /><ref name=":25" /><ref name=":26">{{Cite web |last=Wertheimer |first=John |date=June 24, 2024 |orig-date=January 1, 2009 |title=Ex parte Jackson (1878) Analysis |url=https://firstamendment.mtsu.edu/article/ex-parte-jackson/ |url-status=live |archive-url=https://web.archive.org/web/20240624225037/https://firstamendment.mtsu.edu/article/ex-parte-jackson/ |archive-date=June 24, 2024 |access-date=2024-06-24 |website=The Free Speech Center |publisher=[[Middle Tennessee State University]] |language=en-US}}</ref>

Second, as summarized in point 4 above, this section criminalizes activities related to the mailing of information providing as to from who, where, what, or how an article, already criminalized from being mailed outright, may be obtained or made. Although it holds little precedential value, as it was a decision by a United States district court,<ref name=":30">{{Cite web |last=Raphael |first=Brian |date=November 27, 2023 |title=LibGuides: Federal Case Law: Authoritativeness of Cases |url=https://libguides.law.ucla.edu/c.php?g=183345&p=10062637 |url-status=live |archive-url=https://web.archive.org/web/20240602061351/https://libguides.law.ucla.edu/c.php?g=183345&p=10062637 |archive-date=June 2, 2024 |access-date=2024-06-02 |website=[[University of California, Los Angeles School of Law]] |language=en}}</ref> this provision was ruled unconstitutional (for being [[Overbreadth doctrine|overbroad]]) in ''United States v. Goldstein'' (1976).<ref>{{Cite web |last= |first= |author-link=Frank Gordon Theis |date=June 16, 1976 |title=United States v. Goldstein, 431 F. Supp. 974 (D. Kan. 1976) Opinion |url=https://law.justia.com/cases/federal/district-courts/FSupp/431/974/2185028/ |access-date=2024-06-02 |website=Justia Law |publisher=[[United States District Court for the District of Kansas]] |language=en |via=[[Justia]] |quote=A law expressly prohibiting editorial comment upon the merits of sexually discriminatory employment which directly or indirectly informs readers of employers who do unlawfully discriminate and the availability of jobs with such employers would obviously be unconstitutional. Likewise unconstitutional is a statute which prohibits comment, itself nonobscene, upon the merits of literary or artistic material deemed obscene by a community into which that opinion is mailed, simply because the opinion also gives information as to where such material may be obtained.}}</ref>

Third, laws prohibiting conveyance of material providing information on the procurement of ''legal'' abortion were ruled unconstitutional on First Amendment grounds in ''[[Bigelow v. Virginia]]'' (1975).<ref name=":22">{{Cite web |last=Hudson |first=David |date=May 5, 2024 |orig-date=January 1, 2009 |title=Bigelow v. Virginia (1975) Analysis |url=https://firstamendment.mtsu.edu/article/bigelow-v-virginia/ |url-status=live |archive-url=https://web.archive.org/web/20240602035601/https://firstamendment.mtsu.edu/article/bigelow-v-virginia/ |archive-date=June 2, 2024 |access-date=2024-06-02 |website=The Free Speech Center |publisher=[[Middle Tennessee State University]] |language=en-US}}</ref> As far as ''illegal'' abortion procurement is concerned, that is criminal solicitation and the First Amendment affords no constitutional protection.<ref>{{Cite journal |last=King |first=Martin |date=April 2008 |title=Criminal Speech: Inducement and the First Amendment |url=https://www.ojp.gov/ncjrs/virtual-library/abstracts/criminal-speech-inducement-and-first-amendment |journal=FBI Law Enforcement Bulletin |volume=77 |issue=4 |pages=23–32 |via=[[Office of Justice Programs]]}}</ref>

=== 18 U.S.C. § 1462 ===
The second of the three primary sections of the Comstock Act is codified in a [[Positive law (United States Code)|positive law]] title at [https://www.law.cornell.edu/uscode/text/18/1462 section 1462] of chapter 71, title 18, United States Code. It was first enacted under the Act of February 8, 1897 before being superseded and re-enacted without much modification as section 245 of the Criminal Code Act of 1909.<ref name=":5">{{Cite journal |last=Parkinson |first=Thomas I. |date=1916 |title=Congressional Prohibitions of Interstate Commerce |url=https://www.jstor.org/stable/1110405 |journal=Columbia Law Review |volume=16 |issue=5 |pages=367–385 |doi=10.2307/1110405 |jstor=1110405 |issn=0010-1958|url-access=subscription }}</ref>

The punishment for a violation of section 1462 is identical to that provided for violating section 1461. Similarly there exists two elements to an offense under this section. First, the matter in question has to be of the nature described. Second, a person must ''knowingly'' commit any of the specified acts (which in this section is either import, carriage in interstate or foreign commerce, or receipt of the specified material) and implicate in connection either the U.S. mail, a common carrier, or an interactive computer service.<ref>{{Cite web |title=18 U.S.C. § 1462 - Importation or transportation of obscene matters |url=https://www.law.cornell.edu/uscode/text/18/1462 |access-date=2024-06-04 |website=LII / Legal Information Institute |language=en}}</ref>

In terms of differences to the previous section, section 1462 deviates in that its scope expands to cover the use of a common carrier or interactive computer service. Section 1461 only applies to the [[U.S. Mail]], but section 1462 covers both that and a private package delivery service such as [[United Parcel Service]] or [[Federal Express]].<ref>[https://rquinnlaw.com/wp-content/uploads/2021/02/Quinn-Common-Carrier.pdf Common Carrier Litigation: An Overview of Relevant Case Law]</ref> An interactive computer service generally includes an [[Website|internet website]].<ref>Per the definition used in section 230 of the  [[Communications Act of 1934]] (47 U.S.C. § 230).</ref><ref>{{Cite magazine |last=Laslo |first=Matt |title=The Fight Over Section 230—and the Internet as We Know It |url=https://www.wired.com/story/fight-over-section-230-internet-as-we-know-it/ |access-date=2024-06-18 |magazine=Wired |language=en-US |issn=1059-1028}}</ref> Another difference of 18 U.S.C. § 1462 is in its scope, which is more limited than 18 U.S.C. § 1461, as it describes three as opposed to the seven particular matters. The three matters specified in 18 U.S.C. § 1462 are:

# An obscene ''article'' (to include the additions of 'a thing capable of producing sound' or a 'motion picture film').
# An article designed, adapted, or intended for obscene or abortion-causing purposes.
# Mail matter giving information as to who, what, where, or how an article (either designed, adapted, intended for use or described in a manner calculated to incite to its use for obscene or abortion-causing purposes) may be obtained or made''.''{{Efn|As was explained in the discussion for 18 U.S.C. § 1461, this was ruled unconstitutional in ''United States v. Goldstein'' (1976).|group=note|name=goldstein}}

=== 18 U.S.C. § 552 ===
There is one section of the Comstock Act found in title 18, United States Code, which is outside chapter 71. This is [https://www.law.cornell.edu/uscode/text/18/552 18 U.S.C. § 552], and pertains to customs officials acting as principal to certain activity. For abortion-related matter, this section applies to the extent implicating procurement of abortion. This section, currently codified in a positive law title, was first enacted as Sec. 4. of an Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use.<ref name=":2" />

There are four elements to an offense under this section. First, one must be either an ''officer, employee, or agent'' of the United States. Second, one must ''knowingly'' aid or abet any of the specified offenses (importing, advertising, dealing, exhibiting, sending, or receiving). Third, the knowing aiding or abetting by an officer, employee, or agent of the United States must implicate use of the mail. Fourth, the offense must implicate any of the matters specified.<ref>{{Cite web |title=18 U.S.C. § 552 - Officers aiding importation of obscene or treasonous books and articles |url=https://www.law.cornell.edu/uscode/text/18/552 |access-date=2024-06-05 |website=LII / Legal Information Institute |publisher=[[Cornell Law School]] |language=en}}</ref> These are summarized below:

# Obscene articles.
# Articles advocating or urging treason, insurrection, or forcible resistance against the United States.
# Mail matter containing true threats of physical harm to or taking the life of any person in the United States.
# Articles containing means for procuring abortion, for which surrounding case law has limited to the unlawful procuring of abortion.<ref name=":22" />

=== Sec. 305. of the Tariff Act of 1930 (or 19 U.S.C. § 1305) ===
In addition to the criminal importation provisions under section 1462, there is also a [[Civil forfeiture in the United States|civil forfeiture]] provision of the Comstock Act.<ref>{{Cite web |date=2015-02-19 |title=Justice Manual {{!}} 1964. Immoral Articles; Prohibition Of Importation |url=https://www.justice.gov/archives/jm/criminal-resource-manual-1964-immoral-articles-prohibition-importation |access-date=2024-06-01 |website=[[United States Department of Justice]] |language=en}}</ref> While an earlier version did exist, as Sec. 5. of the Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use,<ref name=":2" /> the modern version was initially enacted under Sec. 305. of the [[Tariff Act of 1930]] and is currently codified (in a non-positive law title) at [https://www.law.cornell.edu/uscode/text/19/1305 section 1305 of title 19, United States Code]. It presently provides that:

{{Blockquote|text=All persons are prohibited from importing into the United States from any foreign country any book, pamphlet, paper, writing, advertisement, circular, print, picture, or drawing containing any matter advocating or urging treason or insurrection against the United States, or forcible resistance to any law of the United States, or containing any threat to take the life of or inflict bodily harm upon any person in the United States, or any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is obscene or immoral, or any drug or medicine or any article whatever for causing unlawful abortion, or any lottery ticket, or any printed paper that may be used as a lottery ticket, or any advertisement of any lottery...}}

This provision has two basic aspects. First and foremost, it subjects certain matters to civil forfeiture. Secondly, it provides a number of exceptions. These exceptions are items imported without the importer's knowledge, bulk abortion-related materials not intended for unlawful use, classic books of recognized merit when permitted by the [[Secretary of the Treasury]], and lottery tickets printed in Canada after 1993 for use in lotteries within the United States.<ref>{{Cite web |title=19 U.S.C. § 1305 - Immoral articles; importation prohibited |url=https://www.law.cornell.edu/uscode/text/19/1305 |access-date=2024-06-02 |website=LII / Legal Information Institute |publisher=[[Cornell Law School]] |language=en}}</ref>

=== 39 U.S.C. § 3001(e) ===
The last section of the Comstock Act is found at [https://www.law.cornell.edu/uscode/text/39/3001 39 U.S.C. § 3001] in subsection (e), and it declares that unsolicited contraceptives are non-mailable unless the addressee is a manufacturer or trader in contraceptives, a [[physician]], a [[nurse]], a [[pharmacist]], a [[hospital]], or a [[clinic]].<ref>{{Cite web |title=39 U.S.C. § 3001 - Nonmailable matter |url=https://www.law.cornell.edu/uscode/text/39/3001 |access-date=2024-06-02 |website=LII / Legal Information Institute |publisher=[[Cornell Law School]] |language=en}}</ref> This provision was ruled unconstitutional in ''Bolger v. Youngs Drug Products Corp'' (1983), as-applied to business mailings, due to an as-applied [[First Amendment to the United States Constitution|First Amendment]] challenge.<ref>{{Cite web |date=June 24, 1983 |title=Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983) Opinion |url=https://supreme.justia.com/cases/federal/us/463/60/ |access-date=2024-05-31 |website=Justia Law |publisher=[[Supreme Court of the United States]] in the [[United States Reports]] |language=en |via=[[Justia]]}}</ref><ref>{{Cite journal |last=Hankin |first=Janet |date=1985-01-01 |title=Casenotes: Constitutional Law — Commercial Speech — Federal Statute Prohibiting Mailing of Unsolicited Contraception Advertisements Violates First Amendment as Applied to Accurate Mailings That Contribute to Informed Decision Making. Bolger v. Youngs Drug Products Corp., 103 S. Ct. 2875 (1983) |url=https://scholarworks.law.ubalt.edu/ublr/vol14/iss2/8 |journal=University of Baltimore Law Review |volume=14 |issue=2 |issn=0091-5440}}</ref><ref>{{Cite web |last=Parker |first=Richard |date=February 18, 2024 |orig-date=January 1, 2009 |title=Bolger v. Youngs Drug Products Corp. (1983) Analysis |url=https://firstamendment.mtsu.edu/article/bolger-v-youngs-drug-products-corp/ |access-date=2024-06-30 |website=The Free Speech Center |publisher=[[Middle Tennessee State University]] |language=en-US}}</ref>

==Definitions, knowledge requirement, statute of limitations, etc.==

=== Definitions ===
Concerning the definitions used in the Comstock Act, there are three key definitions: ''indecent,'' ''obscene'', and ''knowingly''.

For purposes of the Comstock Act, the term indecent is defined in the text as including "matter of a character tending to incite arson, murder, or assassination".<ref name=":12">{{Cite web |title=18 U.S.C. § 1461 - Mailing obscene or crime-inciting matter |url=https://www.law.cornell.edu/uscode/text/18/1461 |access-date=2024-05-31 |website=LII / Legal Information Institute |publisher=[[Cornell Law School]] |language=en |via=[[Office of the Law Revision Counsel]] in the [[United States Code]]}}</ref> This distinct definition has been narrowed by court rulings to a synonym for obscene.<ref name=":9">{{Cite web |date=June 21, 1973 |title=United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973) Opinion |url=https://supreme.justia.com/cases/federal/us/413/123/ |access-date=2024-06-01 |website=Justia Law |publisher=[[Supreme Court of the United States]] in the [[United States Reports]] |language=en |via=[[Justia]]}}</ref><ref name=":10" /><ref name=":11" />

The term obscene is not defined in the actual text of Comstock Act, nor is it defined in the text for much of any of U.S. obscenity law, but the [[Miller test]] provides the most current definition used by courts when judging obscenity.<ref>{{Cite web |date=June 21, 1973 |title=Miller v. California, 413 U.S. 15 (1973) |url=https://supreme.justia.com/cases/federal/us/413/15/ |access-date=2024-06-20 |website=Justia Law |publisher=[[Supreme Court of the United States]] in the [[United States Reports]] |language=en |via=[[Justia]]}}</ref><ref name=":0">{{Cite journal |last=Metcalf |first=J. Todd |date=1996-01-01 |title=Obscenity Prosecutions in Cyberspace: The Miller Test Cannot "Go Where No [Porn] Has Gone Before" |url=https://openscholarship.wustl.edu/law_lawreview/vol74/iss2/9 |journal=Washington University Law Review |volume=74 |issue=2 |pages=481–523 |issn=2166-7993}}</ref><ref>{{Cite web |last=Hudson |first=David |date=May 5, 2024 |orig-date=January 1, 2018 |title=Miller Test |url=https://firstamendment.mtsu.edu/article/miller-test/ |access-date=2024-06-01 |website=The Free Speech Center |publisher=[[Middle Tennessee State University]] |language=en-US}}</ref><ref>{{Cite web |last=Lippe |first=Lawrence |date=October 1, 1985 |title=Statement of the Chief of General Litigation for the Criminal Division of the Department of Justice on October 1, 1985 Concerning S 1305, Computer Pornography |url=https://www.ojp.gov/ncjrs/virtual-library/abstracts/statement-lawrence-lippe-october-1-1985-concerning-s-1305-computer |access-date=2025-03-24 |website=Office of Justice Programs |quote=Although some of these statutes purport to regulate the transmission of "obscene, lewd, lascivious, indecent, and filthy" material, federal courts have construed all these words as being synonymous with the leaal term "obscene."}}</ref> The Miller Test has three prongs which are as follows:

# The average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest;
# the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and
# the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

=== Knowledge requirement ===
For reference, under the [[Model Penal Code]], a guide often used to assist in legislative drafting, the ''knowingly'' criminal knowledge requirement, the second most stringent behind ''purposely'', is defined as follows: "A person acts knowingly with respect to a material element of an offense when...he is aware that his conduct is of that nature...if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result."<ref name=":1">[https://archive.today/20240427222238/https://open.lib.umn.edu/criminallaw/chapter/4-2-criminal-intent/ 4.2 Criminal Intent]</ref>

=== Statute of limitations ===
As nothing indicates otherwise, and since a violation of the Act is a non-capital offense, it has a 5-year statute of limitations.<ref>{{Cite web |title=18 U.S.C. § 3282 - Offenses not capital |url=https://www.law.cornell.edu/uscode/text/18/3282 |access-date=2024-06-12 |website=LII / Legal Information Institute |language=en |quote="Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed."}}</ref><ref>{{Cite web |last1=Cohen |first1=David S. |last2=Donley |first2=Greer |last3=Rebouché |first3=Rachel |author-link3=Rachel Rebouché |date=2024-01-22 |title=Opinion: It's too dangerous to allow this antiquated law to exist any longer |url=https://www.cnn.com/2024/01/22/opinions/abortion-threat-comstock-act-must-be-repealed-cohen-donley-rebouche/index.html |access-date=2024-06-15 |website=CNN |language=en}}</ref>

==Jurisprudence==
=== Contemporary ===
==== Context ====
In June 2022, the [[Supreme Court of the United States]] handed down a 6–3 majority opinion in the case of ''[[Dobbs v. Jackson Women's Health Organization]]'' (2022). This decision [[Devolution|devolved]] regulation of abortion back to the states, overturned ''[[Roe v. Wade]]'' (1973) along with its progeny, and ended the recognition of abortion access as an implied constitutional right. Consequently, the applicability of the Comstock Act to abortion-related articles has become subject to legal dispute.<ref name=":33">{{Cite news |last=Kurtzleben |first=Danielle |date=April 8, 2024 |title=Conservative groups aim to use an 1873 law to virtually end abortions nationwide |url=https://www.npr.org/2024/04/08/1243366144/conservative-groups-aim-to-use-an-1873-law-to-virtually-end-abortions-nationwide |url-status=live |archive-url=https://web.archive.org/web/20240628012230/https://www.npr.org/2024/04/08/1243366144/conservative-groups-aim-to-use-an-1873-law-to-virtually-end-abortions-nationwide |archive-date=June 28, 2024 |access-date=June 21, 2024 |work=National Public Radio}}</ref>

Much of this dispute has arisen concerning [[mifepristone]],<ref name=":34" /> an [[antiprogestogen]] and [[antiglucocorticoid]] drug. Mifepristone is approved (under the brand name Mifeprex), in a regimen with [[misoprostol]] (a [[prostaglandin]] analogue), for ending of a pregnancy up to 70 days post [[gestation]].<ref>{{Cite web |website=DailyMed |title=MIFEPRISTONE tablet |url=https://dailymed.nlm.nih.gov/dailymed/drugInfo.cfm?setid=b63fad9b-7f12-4400-9019-b0586054e534 |access-date=2024-06-22 }}</ref> Mifepristone is additionally approved on its own (under the brand name Korlym) as a treatment for [[Cushing's syndrome]].<ref>{{Cite web |last=Tribble |first=Sarah Jane |date=2018-04-10 |title=How A Drugmaker Turned The Abortion Pill Into A Rare-Disease Profit Machine |url=https://kffhealthnews.org/news/how-a-drugmaker-turned-the-abortion-pill-into-a-rare-disease-profit-machine/ |access-date=2024-06-22 |website=KFF Health News |language=en-US}}</ref> Mifepristone is sometimes used, albeit [[Off-label use|off-label]] in the United States, for treating [[Uterine fibroid|fibroids]], treating [[endometriosis]], treating [[miscarriage]], or inducing [[Childbirth|labor]].<ref>{{Cite web |title=Mifepristone: Questions and Answers With Rollins Researchers |publisher=Rollins School of Public Health, Emory University |location=Atlanta, Georgia |url=https://sph.emory.edu/news/news-release/2023/04/mifepristone-questions-answers.html |access-date=2024-06-22 |language=en}}</ref>

==== ''FDA v. Alliance for Hippocratic Medicine'' (2024) ====
In March 2023, the Alliance for Hippocratic Medicine, an anti-abortion group founded in 2022, filed a federal lawsuit challenging the FDA's approval of mifepristone from back in the year 2000.<ref name=":35">{{Cite news |last=Nowell |first=Cecilia |date=2023-03-15 |title=Access to abortion pill in the balance as Texas judge hears mifepristone case |url=https://www.theguardian.com/world/2023/mar/15/texas-abortion-pill-ban-judge-kacsmaryk |url-status=live |archive-url=https://web.archive.org/web/20231208103045/https://www.theguardian.com/world/2023/mar/15/texas-abortion-pill-ban-judge-kacsmaryk |archive-date=December 8, 2023 |access-date=2024-06-22 |work=The Guardian |language=en-GB |issn=0261-3077}}</ref> On April 7, 2023, [[Matthew J. Kacsmaryk|Matthew Kacsmaryk]], a district judge for the [[United States District Court for the Northern District of Texas]], ruled at the trial-level in that case, ''[[Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration]],'' that the approval of mifepristone was improper, the lifting of REMS restrictions was improper, and the Comstock Act of 1873 made providing medication abortion by mail illegal. This ruling by judge Kacsmaryk conflicted with an opposing same day ruling issued by a U.S. district court in [[Washington (state)]].<ref>{{Cite web |last=Adler |first=Jonathan |author-link=Jonathan H. Adler |date=2023-04-08 |title=Two (Wrong) Mifepristone Court Rulings in One Day |url=https://reason.com/volokh/2023/04/08/two-wrong-mifepristone-court-rulings-in-one-day/ |url-status=live |archive-url=https://web.archive.org/web/20240615194517/https://reason.com/volokh/2023/04/08/two-wrong-mifepristone-court-rulings-in-one-day/ |archive-date=June 15, 2024 |access-date=2024-06-22 |website=[[Reason (magazine)|Reason]] |department=[[The Volokh Conspiracy]] |language=en-US}}</ref><ref name=":32" />

Upon appeal (six days later) to the [[United States Court of Appeals for the Fifth Circuit]], some of the ruling by judge Kacsmaryk was partially stayed and some of the claims presented were thrown out, although a sizable portion of Kacsmaryk's ruling emerged unscathed.<ref>{{Cite web |last=Adler |first=Johnathan |date=2023-04-13 |title=The Good and Bad of the Fifth Circuit's Abortion Pill Ruling |url=https://reason.com/volokh/2023/04/13/the-good-and-bad-of-the-fifth-circuits-abortion-pill-ruling/ |access-date=2024-06-01 |website=[[Reason (magazine)|Reason]] |department=[[The Volokh Conspiracy]] |language=en-US}}</ref><ref>{{Cite web |last1=Sobel |first1=Laurie |last2=Salganicoff |first2=Alina |last3=Felix |first3=Mabel |date=2023-04-21 |title=Update on the Status of Medication Abortion and the Courts |url=https://www.kff.org/policy-watch/update-on-status-alliance-hippocratic-medicine-v-the-food-and-drug-administration-et-al/ |access-date=2024-07-18 |website=KFF |language=en-US}}</ref> The case was later appealed from the Fifth Circuit to the Supreme Court.<ref>{{Cite web |last=Sneed |first=Tierney |date=2024-03-29 |title=Supreme Court abortion case brings 19th century chastity law to the forefront |url=https://www.cnn.com/2024/03/29/politics/comstock-act-alito-thomas-abortion/index.html |access-date=2024-06-23 |website=CNN |language=en}}</ref>

On June 13, 2024, the Supreme Court unanimously held that the Alliance for Hippocratic Medicine did not have [[Standing (law)|standing]] (no plaintiff suffered a concrete and particularized injury-in-fact) sufficient to bring the case, and thereby the Supreme Court avoided a direct ruling on whether the Comstock Act applies to mifepristone or whether mifepristone was properly approved.<ref>{{Cite web |last=Howe |first=Amy |date=2024-06-13 |title=Supreme Court preserves access to abortion pill |url=https://www.scotusblog.com/2024/06/supreme-court-preserves-access-to-abortion-pill/ |access-date=2024-06-22 |website=SCOTUSblog |language=en-US}}</ref>

===Historical===

==== Congressional authority to enact the Comstock Act ====
''[[Ex parte Jackson]]'' (1878) was the first case brought before the Supreme Court of the United States that considered the constitutionality of the Comstock Act. While primarily pertaining to a [[facial challenge]] mounted against a federal law barring the mailing of lottery items, the Court nonetheless made reference to the Comstock Act.<ref name=":3">{{Cite web |title=Ex parte Jackson, 96 U.S. 727 (1878) Opinion |url=https://supreme.justia.com/cases/federal/us/96/727/ |access-date=2024-05-31 |website=Justia Law |publisher=[[Supreme Court of the United States]] in the [[United States Reports]] |language=en |via=[[Justia]]}}</ref><ref>{{Cite journal |last=Lucas |first=Roy |date=2003 |title=Forgotten Supreme Court abortion cases: Drs. Hawker and Hurwitz in the deck and defrocked |url=https://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1305&context=plr |journal=Pepperdine Law Review |volume=30 |issue=4 |pages=641–670 |issn=0092-430X |pmid=15237509 |quote=Jackson upheld a law excluding from the mail any circulars or letters concerning 'lotteries' which were then 'widely considered 'to have a demoralizing influence upon the people.' The Court's unanimous decision relied upon the example of the act of March 3, 1873 [Comstock Act], in which Congress declared 'that 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&nbsp;...' could be carried in the mails.}}</ref> In doing, the Supreme Court unanimously affirmed both the lottery circular law and the original provision of the Comstock Act (18 U.S.C. § 1461) as being valid exercises of Congressional authority under the [[Postal Clause]].<ref name=":26" /> This holding concerning the Comstock Act's initial provision was reaffirmed in later cases like ''[[Roth v. United States]]'' (1957), ''[[United States v. Reidel]]'' (1971), and ''Smith v. United States'' (1977).<ref name=":19" /><ref name=":17">{{Cite web |title=Smith v. United States, 431 U.S. 291 (1977) |url=https://supreme.justia.com/cases/federal/us/431/291/ |access-date=2024-06-01 |website=Justia Law |language=en |quote=The fact that the mailings in this case were wholly intrastate is immaterial for a prosecution under § 1461. That statute was one enacted under Congress' postal power, granted in Art. I, § 8, cl. 7, of the Constitution, and the Postal Power Clause does not distinguish between interstate and intrastate matters.}}</ref><ref name=":4">{{Cite web |date=May 3, 1971 |title=United States v. Reidel, 402 U.S. 351 (1971) Opinion |url=https://supreme.justia.com/cases/federal/us/402/351/ |access-date=2024-05-31 |website=Justia Law |publisher=[[Supreme Court of the United States]] in the [[United States Reports]] |language=en |via=[[Justia]]}}</ref><ref name=":27" /><ref name=":28" /><ref name=":25" />

The common carrier amendment to the Comstock Act (18 U.S.C. § 1462) applies to both the U.S. mail and a common carrier and has been upheld on [[Commerce Clause]] grounds, as opposed to Postal Clause grounds, with its constitutionality first being addressed by the [[United States District Court for the Northern District of California]] in ''United States v. Popper'' (1899). This case was cited with approval by the Supreme Court in ''[[Hoke v. United States]]'' (1913), in upholding the [[Mann Act]] as a valid regulation of commerce, and the constitutionality of the section was reaffirmed in ''United States v. Orito'' (1973).<ref>{{Cite web |title=United States v. Orito (1973) Analysis |url=https://firstamendment.mtsu.edu/article/united-states-v-orito/ |access-date=2024-06-02 |website=The Free Speech Center |language=en-US}}</ref><ref name=":5" /> The Supreme Court would similarly uphold Sec. 305. of the [[Tariff Act of 1930]] (19 U.S.C. § 1305) as a valid exercise of authority under the Commerce Clause.<ref name=":20">{{Cite web |title=United States v. Twelve 200-Ft. Reels of Film (1973) Analysis |url=https://firstamendment.mtsu.edu/article/united-states-v-twelve-200-ft-reels-of-film/ |access-date=2024-06-02 |website=The Free Speech Center |language=en-US}}</ref>

==== Vagueness challenges ====
The broad language used in the Comstock Act has, mostly in the years since the ''[[Dobbs v. Jackson Women's Health Organization|Dobbs]]'' decision, lead to some opining that the Comstock Act, particularly 18 U.S.C. § 1461, is unconstitutionally vague.<ref name=":32">{{Cite web |last=Millhiser |first=Ian |author-link=Ian Millhiser |date=2023-01-22 |title=The coming legal showdown over abortion pills |url=https://www.vox.com/policy-and-politics/2023/1/22/23539363/abortion-medication-mifepristone-supreme-court-pills-comstock-matthew-kacsmaryk |access-date=2024-06-01 |website=Vox |language=en-US}}</ref><ref name=":21">{{cite journal |last=Brunnstrom |first=Ebba |title=Abortion and the Mails: Challenging the Applicability of the Comstock Act Laws Post-Dobbs |journal=Columbia Human Rights Law Review |volume=55 |issue=1 |date=2023-03-10 |ssrn=4384327 |url=https://papers.ssrn.com/abstract=4384327 |access-date=2024-05-31 |language=en}}</ref> However, the understanding built by the surrounding case law has been largely dismissive of vagueness challenges. For instance, in ''Hamling v. United States'' (1974), the Supreme Court would uphold section 1461 by adopting a saving construction that conformed the section with the [[Miller test]].<ref name=":11">{{Cite web |date=June 24, 1974 |title=Hamling v. United States, 418 U.S. 87 (1974) Opinion |url=https://supreme.justia.com/cases/federal/us/418/87/ |access-date=2024-06-01 |website=Justia Law |publisher=[[Supreme Court of the United States]] in the [[United States Reports]] |language=en |via=[[Justia]]}}</ref><ref name=":29">{{Cite journal |date=1975-01-01 |title=Obscenity: Hamling v. United States, 418 U.S. 87 (1974), Jenkins v. Georgia, 418 U.S. 153 (1974) |url=https://scholarlycommons.law.northwestern.edu/jclc/vol65/iss4/8 |journal=Journal of Criminal Law and Criminology |volume=65 |issue=4 |pages=499}}</ref> Later, in ''Smith v. United States'' (1977), the Supreme Court would push back against another vagueness argument (this time presented as an [[as-applied challenge]]).<ref name=":6">{{Cite web |title=Smith v. United States, 431 U.S. 291 (1977) Opinion |url=https://supreme.justia.com/cases/federal/us/431/291/ |access-date=2024-06-01 |website=Justia Law |language=en}}</ref><ref name=":28">{{Cite web |title=Smith v. United States (1977) Analysis |url=https://firstamendment.mtsu.edu/article/smith-v-united-states/ |access-date=2024-06-02 |website=The Free Speech Center |language=en-US}}</ref> Writing for the court, Justice [[Harry Blackmun]], best known for writing the opinion delivered in ''[[Roe v. Wade]]'' (1973),<ref>{{Cite web |last= |first= |date=June 24, 1999 |title=Eloquent voice for the oppressed: Harry A. Blackmun 1908–1999 |type=obituary |url=https://hls.harvard.edu/today/eloquent-voice-for-the-oppressed/ |access-date=2024-06-20 |website=Harvard Law School News |language=en-us}}</ref> would go on to explicitly state the following:

{{Blockquote|text=Neither do we [the Supreme Court] find § 1461 unconstitutionally vague as applied here. Our construction of the statute flows directly from the decisions in ''Hamling'', ''Miller'', ''Reidel'', and ''Roth''. As construed in ''Hamling'', the type of conduct covered by the statute can be ascertained with sufficient ease to avoid due process pitfalls. Similarly, the possibility that different juries might reach different conclusions as to the same material does not render the statute unconstitutional.|author=}}

''United States v. 12 200-ft Reels of Film'' (1973) and ''United States v. Thirty-Seven Photographs'' (1971){{efn|both are cases pertaining to the importation of pornographic material into the United States from a foreign country|group=note}} adopted a similar line of interpretation towards 18 U.S.C. § 1462 and Sec. 305. of the Tariff Act of 1930 (or 19 U.S.C. § 1305) respectively.<ref name=":9" /><ref name=":20" /> The opinion in ''Thirty-Seven Photographs'' interpreted a 14-day time limit into beginning forfeitures under Sec. 305 of the Tariff Act of 1930; this ruling was handed down two years prior to ''[[Miller v. California]]'' (1973).<ref name=":10">{{Cite web |date=May 3, 1971 |title=United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971) Opinion |url=https://supreme.justia.com/cases/federal/us/402/363/ |access-date=2024-06-01 |website=Justia Law |publisher=[[Supreme Court of the United States]] in the [[United States Reports]] |language=en |via=[[Justia]]}}</ref><ref name=":25">{{Cite journal |date=1971-01-01 |title=Still More Ado About Dirty Books (and Pictures): Stanley, Reidel, and Thirty-seven Photograph |url=https://openyls.law.yale.edu/handle/20.500.13051/15457 |journal=Yale Law Journal |language=en}}</ref>

==== Obscenity statutory interpretation ====
While the standards for what constitutes obscenity have changed since the Comstock Act's initial passage, the Act's application to obscenity has been upheld against an array of First Amendment challenges. As an example, in ''Roth v. United States'' (1957), a case partially superseded by ''[[Miller v. California]]'' (1973) as to the particular test used, the Supreme Court upheld the Comstock Act against a First Amendment challenge.<ref name=":19">{{Cite web |title=Roth v. United States, 354 U.S. 476 (1957) Opinion |url=https://supreme.justia.com/cases/federal/us/354/476/ |access-date=2024-06-02 |website=Justia Law |language=en}}</ref><ref name=":27">{{Cite web |title=Roth v. United States (1957) Analysis |url=https://firstamendment.mtsu.edu/article/roth-v-united-states/ |access-date=2024-06-18 |website=The Free Speech Center |language=en-US}}</ref> In ''[[One, Inc. v. Olesen]]'' (1958), decided as a follow-on to ''Roth'', the Supreme Court ruled that material pertaining to homosexuality is not ''ipso facto'' obscene<ref>''[[One, Inc. v. Olesen]]'', {{Ussc|355|371|1958}} Opinion.</ref><ref>{{Cite news |last=Geidner |first=Chris |author-link=Chris Geidner |date=2019-06-19 |title=The Court Cases That Changed L.G.B.T.Q. Rights |url=https://www.nytimes.com/2019/06/19/us/legal-history-lgbtq-rights-timeline.html |access-date=2024-06-18 |work=The New York Times |language=en-US |issn=0362-4331}}</ref> and later reaffirming the conclusion in [[Manual Enterprises, Inc. v. Day|''MANual Enterprises v. Day'']] (1962).<ref>{{Cite web |title=MANual Enterprises, Inc. v. Day, 370 U.S. 478 (1962) |url=https://supreme.justia.com/cases/federal/us/370/478/ |access-date=2024-06-05 |website=Justia Law |language=en}}</ref><ref>{{Cite book |last=Johnson |first=David K. |author-link=David K. Johnson |title=Buying gay: how physique entrepreneurs sparked a movement |date=2021 |publisher=Columbia University Press |isbn=978-0-231-18911-8 |series=Columbia studies in the history of U.S. capitalism |location=New York, New York}}</ref> The ''Miller'' test is the obscenity test currently applied to the Comstock Act, as explained in the opinion for ''Hamling v. United States'' (1974).<ref name=":11" /><ref name=":29" />

==== Statutory interpretation of abortion-related references ====
With respect to the Comstock Act's references to abortion, which currently have not been removed as had the reference to contraceptives, historical interpretation has generally construed this as applying to articles intended for unlawful abortion, reconciling it with Sec. 305. of the Tariff Act of 1930, which does make such a distinction.<ref name=":34">{{Cite web |last=Pauly |first=Madison |title='You would only need a week': How the next Republican president could ban abortion nationwide |url=https://www.motherjones.com/politics/2023/04/mifepristone-comstock-abortion-medication-pill-texas-court-ban/ |access-date=2024-06-21 |website=Mother Jones |language=en-US}}</ref><ref name=":13">{{Cite web |date=2023-01-03 |title=Application of the Comstock Act to the Mailing of Prescription Drugs That Can Be Used for Abortions |publisher=Office of Legal Counsel, United States Department of Justice |url=https://www.justice.gov/olc/opinion/application-comstock-act-mailing-prescription-drugs-can-be-used-abortions |access-date=2024-06-01 |language=en}}</ref><ref name=":12" />

Moreover, as the Supreme Court held, in ''[[Linder v. United States]]'' (1925), that "[o]bviously, direct control of medical practice in the states is beyond the power of the federal government",<ref name=":14" /> historical jurisprudence of the Comstock Act in regard to prosecuting delivery of drugs and devices hinged on determining whether a purported use, such as for abortion or [[#Contraceptives|contraception]], was outside the scope of accepted professional practice in the state of delivery or receipt, and thereby punishable under the Comstock Act.<ref>{{Citation |last1=Siegel |first1=Reva B. |author-link1=Reva Siegel |title=Abortion's New Criminalization: A History-And-Tradition Right to Healthcare Access After Dobbs and the 2023 Term |date=2024 |url=https://www.ssrn.com/abstract=4881886 |access-date=2024-10-30 |doi=10.2139/ssrn.4881886 |last2=Ziegler |first2=Mary|url-access=subscription |doi-access=free }}</ref>

==== Status as a RICO predicate ====
An area of interest to legal scholars concerned the effect of the [[Comprehensive Crime Control Act of 1984]] which, among other things, added "dealing in obscene matters" as a [[predicate offense]] for purposes of the [[Racketeer Influenced and Corrupt Organizations Act|Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO)]]. It was initially believed by some scholars that this modification to RICO would get struck down as an unconstitutional burden on [[First Amendment to the United States Constitution|First Amendment]] protected conduct.<ref>{{Cite web |title=RICO (Racketeer Influenced and Corrupt Organizations) vs. Dealers in Obscene Matter: The First Amendment Battle |publisher=Office of Justice Programs |url=https://www.ojp.gov/ncjrs/virtual-library/abstracts/rico-racketeer-influenced-and-corrupt-organizations-vs-dealers |access-date=2024-06-01}}</ref> Nine years after that modification was made to RICO, this concern would be answered as the Supreme Court, in ''Alexander v. United States'' (1993), upheld, against a First Amendment challenge, a RICO forfeiture pertaining to obscenity.<ref name=":7">{{Cite web |title=Alexander v. United States (1993) Analysis |url=https://firstamendment.mtsu.edu/article/alexander-v-united-states/ |access-date=2024-06-01 |website=The Free Speech Center |language=en-US}}</ref>

=== Related issues ===

==== Contraceptives ====
[[Margaret Sanger]], the founder of [[Planned Parenthood]], was charged in 1915 for her work ''The Woman Rebel''. Sanger circulated this work through the U.S. postal service, violating the Comstock Act. On appeal, her conviction was reversed on the grounds that contraceptive devices could legally be promoted for the cure and prevention of disease.<ref name="note">{{cite web | title = Biographical Note | work = The Margaret Sanger Papers | publisher = Sophia Smith Collection, Smith College, Northampton, Massachusetts | year = 1995 | url = http://asteria.fivecolleges.edu/findaids/sophiasmith/mnsss43_bioghist.html | access-date = 2006-10-21 | archive-url = https://web.archive.org/web/20060912180741/http://asteria.fivecolleges.edu/findaids/sophiasmith/mnsss43_bioghist.html | archive-date = 2006-09-12 | url-status = live }}</ref> Her husband, architect [[William Sanger]], was similarly charged earlier that year under a New York law against disseminating contraceptive information.<ref name="SangerWilliamCourt">{{cite news |url= https://timesmachine.nytimes.com/timesmachine/1915/09/11/100176200.pdf |title= Disorder in Court as Sanger is Fined: Justices Order Room Cleared When Socialists and Anarchists Hoot Verdict |author=<!--Staff writer(s); no by-line-->|newspaper= [[The New York Times]]|page= 7 |date= September 11, 1915 }}</ref> In 1932, Margaret Sanger arranged for a shipment of [[Diaphragm (contraceptive)|diaphragms]] to be mailed from Japan to a sympathetic physician in New York City. When U.S. customs confiscated the package as unlawful contraceptives, Sanger aided that physician in filing a lawsuit to contest the seizure.<ref name="note" />

The [[United States Court of Appeals for the Second Circuit]] ruled in the case, ''[[United States v. One Package of Japanese Pessaries]]'' (1936), that the Comstock Act was not to be construed as interfering with practice of medicine.<ref name=":8">{{Cite encyclopedia |title=United States v. One Package of Japanese Pessaries (1936) Analysis |encyclopedia=Embryo Project Encyclopedia |url=https://embryo.asu.edu/pages/united-states-v-one-package-japanese-pessaries-1936 |access-date=2024-06-13}}</ref> This holding was in line with the previously mentioned conclusion of the Supreme Court in ''[[Linder v. United States|Linder]]'' that "[o]bviously, direct control of medical practice in the states is beyond the power of the federal government",<ref name=":14">{{Cite web |last=Kopel |first=David |author-link=David Kopel |date=2011-12-01 |title=Supreme Court: "Obviously, direct control of medical practice in the states is beyond the power of the federal government." |url=https://volokh.com/2011/12/01/supreme-court-obviously-direct-control-of-medical-practice-in-the-states-is-beyond-the-power-of-the-federal-government/ |access-date=2024-10-30 |website=The Volokh Conspiracy |language=en-US}}</ref> so while the federal government could prohibit the mailing of contraceptives outside the course of professional practice, or tax drugs as it had with the [[Harrison Narcotics Tax Act|Harrison Act]] at issue in ''Linder,'' it was not of the liberty to cast the judgment that a use, otherwise accepted by relevant state medical authorities, was nonetheless beyond the realm of legitimate professional practice, as regulation of medical practice is addressed at the state level in the United States.<ref name=":8" />

''[[Griswold v. Connecticut]]'' (1965) struck down a contraception-related Comstock-style law in [[Connecticut]]. However, ''Griswold'' only applied to marital relationships.<ref>''[[Griswold v. Connecticut]]'', {{Ussc|381|479|1965}}.</ref><ref>{{Cite journal |last=Bailey |first=Martha |author-link=Martha Bailey |date=2010 |title='Momma's Got the Pill': How Anthony Comstock and Griswold v. Connecticut Shaped US Childbearing |journal=American Economic Review |language=en |volume=100 |issue=1 |pages=98–129 |doi=10.1257/aer.100.1.98 |pmid=29508974 |issn=0002-8282|pmc=11835516 }}</ref> ''[[Eisenstadt v. Baird]]'' (1972) extended its holding to unmarried persons as well.<ref>''[[Eisenstadt v. Baird]]'', {{Ussc|405|438|1972}}.</ref> In 1971, the U.S. Congress removed the reference to contraceptives from the federal-level Comstock Act, but left much the rest of the Act stand as it had been written.<ref name=":15">{{cite web |last=Schroeder |first=Pat |author-link=Pat Schroeder |date=September 24, 1996 |title=Comstock Act Still On The Books |url=https://awpc.cattcenter.iastate.edu/2017/03/21/comstock-act-still-on-the-books-sept-24-1996/ |url-status=live |archive-url=https://web.archive.org/web/20240130021721/https://awpc.cattcenter.iastate.edu/2017/03/21/comstock-act-still-on-the-books-sept-24-1996/ |archive-date=January 30, 2024 |access-date=June 30, 2024 |website=[[Iowa State University]] |quote=Although its reach has been somewhat curtailed by the courts based upon first amendment principles, the Comstock Act remains on our books today. In 1971, Congress deleted the prohibition on birth control; but the prohibition on information about abortion remains, and the maximum fine was increased in 1994 from $5,000 to $250,000 for a first offense.}}</ref>

== Contemporary enforcement ==
Due to its age, the Comstock Act has been referred to by some commentators, in publications such as [[MSNBC]] and [[Slate (magazine)|''Slate'']], as a "zombie law".<ref>{{Cite news |last1=Cohen |first1=David S. |last2=Donley |first2=Greer |last3=Rebouche |first3=Rachel |author-link3=Rachel Rebouché |date=2024-03-08 |title=The Biggest Thing Missing From Joe Biden's State of the Union |url=https://slate.com/news-and-politics/2024/03/abortion-comstock-act-joe-biden-state-of-the-union.html |access-date=2024-06-01 |work=Slate |language=en-US |issn=1091-2339}}</ref><ref name=":142">{{Cite web |date=2024-03-27 |title=Opinion {{!}} Justices Thomas and Alito want to use a 'zombie law' to restrict abortion |url=https://www.msnbc.com/opinion/msnbc-opinion/supreme-court-abortion-pill-mifepristone-comstock-act-rcna145147 |access-date=2024-06-01 |website=MSNBC |language=en}}</ref> However, the Act remains just as effective as does any other federal law unless repealed or amended.<ref>[https://crsreports.congress.gov/product/details?prodcode=R46484 "Understanding Federal Legislation: A Section-by-Section Guide to Key Legal Considerations"]. United States Congress.</ref> The doctrine of [[desuetude]] (a [[common law]] concept that a law is repealed by implication if it has not been used in a long time) has not garnered widespread support in U.S. courts.<ref name=":232">{{Cite journal |last=Allevato |first=Peter |date=2023 |title=Does Federal Law Ban Mailing Abortion Drugs? A Textual Analysis of 18 U.S.C. § 1461 |url=https://www.ssrn.com/abstract=4529788 |journal=SSRN Electronic Journal |language=en |doi=10.2139/ssrn.4529788 |issn=1556-5068|url-access=subscription |doi-access=free }}</ref>

The law has had some prosecutions in recent years, though enforcement of the Act's provisions has shifted from obscenity generally to primarily being a tool in securing [[Child pornography laws in the United States|child pornography]] convictions. The most recent conviction made under the Comstock Act, with five of the nine charges being brought forth under 18 U.S.C. § 1462, was that of Thomas Alan Arthur, a Texas man who was sentenced in 2021 to 40 years in federal prison for his role as the operator of an internet site which acted as a paid repository of obscene writings and drawings pertaining to child sexual abuse.<ref name=":16" /><ref name=":182">{{Cite web |last=Pedroja |first=Cammy |date=2021-06-22 |title=Texas Man Sentenced to 40 Years For Website of Stories About Child Abuse |url=https://www.newsweek.com/texas-man-sentenced-40-years-running-website-stories-about-raping-murdering-children-1603191 |access-date=2024-06-01 |website=Newsweek |language=en}}</ref> According to [[FBI]] agent Roger Young,<ref>{{Cite web |title=Interview with Roger Young, a retired FBI Agent who specialized in child pornography and obscenity cases |url=https://www.catholicnewsagency.com/resource/56076/interview-with-roger-young-a-retired-fbi-agent-who-specialized-in-child-pornography-and-obscenity-cases |access-date=2024-06-02 |website=Catholic News Agency |language=en}}</ref> the Comstock Act and other federal obscenity laws were initially the only tools available for federal authorities to prosecute child pornography:

{{Blockquote|text=All along [my career], I had some national and international child pornography cases and cases involving child prostitution. But when I [first] began working child pornography cases early in 1977, there were no child porn laws. We [the FBI] used obscenity laws to prosecute child porn.}}

This change in enforcement, from general obscenity to an emphasis on child sexual abuse material, was bolstered by the Reagan Administration and by the outcome in ''[[New York v. Ferber]]'' (1982), a landmark decision in which the Supreme Court unanimously held that child pornography is not protected by the [[First Amendment to the United States Constitution|First Amendment]].<ref>{{Cite web |title=New York v. Ferber, 458 U.S. 747 (1982) Opinion |url=https://supreme.justia.com/cases/federal/us/458/747/ |access-date=2024-06-01 |website=Justia Law |language=en}}</ref><ref>{{Cite web |title=New York v. Ferber (1982) Analysis |url=https://firstamendment.mtsu.edu/article/new-york-v-ferber/ |access-date=2024-06-15 |website=The Free Speech Center |language=en-US}}</ref> President Reagan made child sexual abuse prosecution a priority during his administration and stated<ref>{{Cite web |last=Reagan |first=Ronald |date=November 10, 1987 |title=Message to the Congress Transmitting Proposed Legislation on Child Protection and Obscenity Enforcement |url=https://www.presidency.ucsb.edu/documents/message-the-congress-transmitting-proposed-legislation-child-protection-and-obscenity |access-date=2024-06-01 |website=The American Presidency Project |publisher=[[University of California Santa Barbara]] |via=}}</ref> in 1987, "this Administration is putting the purveyors of illegal obscenity and child pornography on notice: your industry's days are numbered."

Another anti-child-pornography and anti-obscenity law to be signed by President Reagan is the Child Protection Act of 1984 and it was the first law to generally outlaw child pornography at the federal level.<ref>{{Cite web |last=McGraw |first=Carol |date=1985-09-16 |title=Child Smut Business Going Underground: Grows Uglier as Customers Trade Children, Not Just Pictures, Police Say |url=https://www.latimes.com/archives/la-xpm-1985-09-16-mn-22002-story.html |access-date=2024-06-01 |website=Los Angeles Times |language=en-US}}</ref> Reagan-era amendments to the Comstock Act do not stand alone though, as President [[Bill Clinton]] later signed into law 1994 and 1996 amendments to the Act which increased its penalties and expanded the scope of 18 U.S.C. § 1462 to cover an interactive computer service (internet website).<ref name=":15" />
[[File:President Reagan’s Remarks at the Signing Ceremony of the Child Protection Act on May 21, 1984.webm|thumb|President Reagan's remarks at the signing ceremony of the Child Protection Act on May 21, 1984]]

== Present-day discourse ==

=== Context ===
Following the outcome reached in ''[[Dobbs v. Jackson Women's Health Organization]]'' (2022), the Comstock Act has become increasingly discussed by anti-abortion groups and public figures as being a means by which abortion access in the United States could be curtailed without the need for new federal legislation.<ref>{{Cite web |last=Blumenthal |first=Paul |date=2023-04-17 |title=This 150-Year-Old Anti-Vice Law Is Now At The Center Of The Push To Ban Abortion |url=https://www.huffpost.com/entry/abortion-ban-comstock-act_n_643d56d7e4b0ed74f2a34db7 |access-date=2024-06-22 |website=HuffPost |language=en}}</ref><ref>{{Cite news |last=Donegan |first=Moira |author-link=Moira Donegan |date=2024-04-08 |title=Republicans want to use an 1873 law to ban abortion. Congress must repeal it |url=https://www.theguardian.com/commentisfree/2024/apr/08/republicans-abortion-comstock-congress |access-date=2024-06-21 |work=The Guardian |language=en-GB |issn=0261-3077}}</ref><ref>{{Cite web |last=Kanu |first=Hassan Ali |date=2024-04-09 |title=The Truth About the Comstock Act |url=https://prospect.org/api/content/0e5781ee-f602-11ee-972f-12163087a831/ |access-date=2024-06-21 |website=The American Prospect |language=en-us}}</ref><ref>{{Cite news |last=Kurtzleben |first=Danielle |date=April 10, 2024 |title=Why anti-abortion advocates are reviving a 19th century sexual purity law |url=https://www.npr.org/2024/04/10/1243802678/abortion-comstock-act |access-date=June 21, 2024 |work=National Public Radio}}</ref>

=== Anti-abortion discourse ===
In a February 2024 interview with ''The New York Times'', [[Jonathan F. Mitchell]], an attorney active in the anti-abortion movement and a former [[Solicitor General of Texas]], expressed an optimistic viewpoint about the Comstock Act's applicability to abortion: "We don't need a federal [abortion] ban when we have Comstock on the books." However, Mitchell nonetheless hoped that [[Donald Trump]] would not discuss the issue: "[I hope Trump] doesn't know about the existence of Comstock, because I just don't want him to shoot off his mouth." Mitchell said similarly of anti-abortion activists: "I think the pro-life groups should keep their mouths shut as much as possible until the [2024 presidential] election."<ref>{{Cite news |last1=Lerer |first1=Lisa |last2=Dias |first2=Elizabeth |date=2024-02-17 |title=Trump Allies Plan New Sweeping Abortion Restrictions |url=https://www.nytimes.com/2024/02/17/us/politics/trump-allies-abortion-restrictions.html |access-date=2024-06-12 |work=The New York Times |language=en-US |issn=0362-4331}}</ref> [[Edward Whelan (American lawyer)|Ed Whelan]], another attorney active in the anti-abortion movement and the former president of the [[Ethics and Public Policy Center]], a conservative think tank, expressed a view similar to that of Mitchell and criticized [[Joe Biden|Biden]] administration policy towards abortion, claiming that "[b]y hook or by crook, the Biden administration is determined to undermine or circumvent state laws restricting abortion".<ref>{{Cite web |last=Whelan |first=Ed |date=2023-02-02 |title=OLC's Dubious Stay-Out-of-Jail Card for Abortion-Drug Shippers |url=https://www.nationalreview.com/bench-memos/olcs-dubious-stay-out-of-jail-card-for-abortion-drug-shippers/ |access-date=2024-06-22 |website=National Review |language=en-US}}</ref>

In January 2023, [[Vice President of the United States|Vice President]] [[JD Vance]], then a U.S. senator from [[Ohio]], signed a letter, along with other Senate colleagues, supporting the application of the Comstock Act to abortion-related articles such as abortion pills.<ref>{{Cite news |last1=Diamond |first1=Dan |last2=Kornfield |first2=Meryl |date=2024-07-17 |title=Vance urged DOJ to enforce Comstock Act, crack down on abortion pills |url=https://www.washingtonpost.com/health/2024/07/17/jd-vance-abortion-comstock-vice-presidential-nominee/ |access-date=2024-07-30 |newspaper=The Washington Post |language=en-US |issn=0190-8286}}</ref><ref>{{Cite news |last=Sherman |first=Carter |date=2024-07-26 |title=JD Vance called for 'federal response' to block women from traveling for abortions |url=https://www.theguardian.com/us-news/article/2024/jul/26/jd-vance-abortion-ban-travel |access-date=2024-07-27 |work=The Guardian |language=en-GB |issn=0261-3077}}</ref>

[[The Heritage Foundation]]'s [[Project 2025]], a self-styled "mandate for leadership" intended for use by a future conservative President of the United States, has a section on abortion access that indirectly refers to the Comstock Act as "federal laws that prohibit the distribution of abortion drugs by postal mail".<ref name=":32" /><ref>{{Cite web |title=Mandate for Leadership: The Conservative Promise: Project 2025 Presidential Transition Project |pages=458–459 |url=https://static.project2025.org/2025_MandateForLeadership_FULL.pdf |access-date=June 13, 2024 |website=[[The Heritage Foundation]]}}</ref>

On February 2, 2023, twenty [[Republican Party (United States)|Republican]] State attorneys general issued a letter to [[CVS Pharmacy|CVS]] and [[Walgreens]] against the mailing of mifepristone and misoprostol in combination, citing the Comstock Act.<ref>{{Cite web |last=Sneed |first=Tierney |date=2023-02-01 |title=Republican AGs warn pharmacies against mailing abortion pills within their states |url=https://www.cnn.com/2023/02/01/politics/cvs-walgreens-medication-abortion-republicans/index.html |access-date=2024-06-21 |website=CNN |language=en}}</ref> This letter was in response to announcements by CVS and Walgreens in January 2023 that the pharmacy chains would begin processing mifepristone-misoprostol prescriptions.<ref>{{Cite web |last1=Coombs |first1=Bertha |author-link1=Bertha Coombs |last2=Kimball |first2=Spencer |date=2023-01-05 |title=CVS and Walgreens plan to sell abortion pill mifepristone at pharmacies after FDA rule change |url=https://www.cnbc.com/2023/01/05/abortion-cvs-and-walgreens-will-sell-mifepristone-in-pharmacies.html |access-date=2024-06-21 |website=CNBC |language=en}}</ref> In March 2023, Walgreens announced it would not distribute mifepristone-misoprostol in combination within those twenty states.<ref name=":36">{{Cite web |last=Cohen |first=Rachel M. |date=2023-03-15 |title=The sole US supplier of a major abortion pill said it would not distribute the drug in 31 states |url=https://www.vox.com/policy/2023/3/15/23639267/walgreens-abortion-pill-mifepristone-mifeprex-misoprostol |access-date=2024-06-23 |website=Vox |language=en-US}}</ref>

=== Abortion rights discourse ===
Proponents of a right to access abortion, such as Democratic Senator for Minnesota [[Tina Smith]], have, since the 2022 ''Dobbs'' decision, advocated for the repealing of the Comstock Act's language relating to abortion.<ref>{{Cite news |last=Smith |first=Tina |date=2024-04-02 |title=Opinion {{!}} I Hope to Repeal an Arcane Law That Could Be Misused to Ban Abortion Nationwide |url=https://www.nytimes.com/2024/04/02/opinion/comstock-act-abortion-repeal.html |access-date=2024-06-21 |work=The New York Times |language=en-US |issn=0362-4331}}</ref> On June 20, 2024, Senator Smith announced that she was going to be unveiling legislation to achieve that goal.<ref>{{Cite web |date=2024-06-20 |title=Democrats Are Trying To Repeal An Archaic Law That Could Create A National Abortion Ban |last=Alanna |first=Vagianos |url=https://www.huffpost.com/entry/democrats-introduce-bill-repeal-archaic-comstock-act-could-create-national-abortion-ban_n_667479e3e4b069d92e24a735 |access-date=2024-06-21 |website=HuffPost |language=en}}</ref><ref>{{Cite web |last=Becker |first=Amanda |date=2024-06-20 |title=Democrats, worried about future of medication abortion, push to repeal Comstock Act |url=https://19thnews.org/2024/06/comstock-act-repeal-congress-democrats/ |access-date=2024-06-21 |website=The 19th |language=en-us}}</ref> Senator Smith's proposed legislation is not the first time legislators in the United States have proposed or introduced legislation to repeal the Act's abortion-related language, nor is it the first to fail upon the commencement of a new Congressional session. In 1997, Representative [[Barney Frank]] introduced the Comstock Cleanup Act in an effort to achieve this same goal, but his bill also failed (not even making it to committee).<ref>{{Cite web |last= |first= |title=What is the Comstock Act? The 151-year-old law mentioned in SCOTUS abortion pill case |url=https://abcnews.go.com/Politics/what-is-comstock-act-supreme-court-abortion-pill-case/story?id=108395444 |access-date=2024-06-21 |website=ABC News |language=en}}</ref>

=== Implications ===
If the Supreme Court were to affirm a determination that the Comstock Act applies to abortion-related articles generally, or if a future administration began enforcing it in such a way, then the Comstock Act could have renewed significance as [[mifepristone]] and misoprostol are used in 63% of the abortions performed in the United States.<ref>{{Cite news |last=Rosenzweig-Ziff |first=Dan |date=2024-03-19 |title=U.S. abortions reach recent high, with record number done via medication |url=https://www.washingtonpost.com/politics/2024/03/19/abortion-medication-mifepristone-63-percent/ |access-date=2024-06-12 |newspaper=The Washington Post |language=en-US |issn=0190-8286}}</ref> This combination regimen has increasingly been prescribed through telehealth and delivered by mail to individuals within states where abortion has since been broadly restricted following the ''Dobbs'' decision.<ref>{{Cite web |last=Cohen |first=Rachel M. |date=2023-12-27 |title=Access to abortion pills has grown since Dobbs |url=https://www.vox.com/policy/2023/12/27/24015092/abortion-pills-mifepristone-roe-reproductive-misoprostol |access-date=2024-06-01 |website=Vox |language=en-US}}</ref>

Some other concerns raised, if this view took hold, are that not only would the use of telehealth to prescribe mifepristone and misoprostol, the two drugs used in combination for most medication abortion, become largely criminal but, since Comstock Act violations are a predicate offense, persons (and their associated enterprises) involved in provisioning abortion telehealth could also face penalties under the [[Racketeer Influenced and Corrupt Organizations Act|Racketeer Influenced and Corrupt Organizations Act of 1970]].<ref>{{Cite web |last1=Felix |first1=Mabel |last2=Sobel |first2=Laurie |last3=Published |first3=Alina Salganicoff |date=2024-04-15 |title=The Comstock Act: Implications for Abortion Care Nationwide |url=https://www.kff.org/womens-health-policy/issue-brief/the-comstock-act-implications-for-abortion-care-nationwide/ |access-date=2024-06-01 |website=KFF |language=en-US}}</ref>

== Historical background ==
[[File:NewYorkSocietyForTheSuppressionOfVice.jpg|thumb|The symbol of Comstock's [[New York Society for the Suppression of Vice]].]]

=== General ===
The Comstock Act's initial provision was enacted, June 8, 1872, as a rider under Sec. 148 of the [[Post Office Consolidation Act of 1872]].<ref name=":2" /> It read:

{{Blockquote|text=That no obscene book, pamphlet, picture, print, or other publication of a vulgar or indecent character, or any letter upon the envelope of which, or postal card upon which scurrilous epithets may have been written or printed, or disloyal devices printed or engraved, shall be carried in the mail; and any person who shall knowingly deposit, or cause to be deposited, for mailing or for delivery, any such obscene publication, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall, for every such offence, be fined not more than five hundred dollars or imprisoned not more than one year, or both, according to the circumstances and aggravation of the offense.}}

This section was amended by an Act of Congress on March 3, 1873.<ref name=":2" /> The amendment made by section two of that Act criminalized any use of the [[United States Postal Service|U.S. Postal Service]] to send any of the following items:<ref>Note that the following four items are modern-day terminology which are equivalent (or almost equivalent) to what the laws actually say. "Obscene" may be also called in the law texts as "vulgar", "indecent", "filthy" (Ruppenthal p. 48). "Contraceptive" is an article for "preventing conception" (Ruppenthal, most all pages). "Abortifacient" may be "medicine or means for producing or facilitating miscarriage or abortion" (Ruppenthal p. 52). "Sex-toy" might be "instrument or article of indecent or immoral use" (Ruppenthal pp. 35, 49, etc.) or "instrument or article for [[Masturbation|self-pollution]]" (Ruppenthal p. 35).</ref> [[obscenity]], [[Birth control|contraceptives]], [[abortifacient]]s, [[sex toy]]s, personal letters with any sexual content or information, or any information regarding the above items.<ref name="NYT-20240402">{{cite news |last=Smith |first=Tina |author-link=Tina Smith |date=April 2, 2024 |title=I Hope to Repeal an Arcane Law That Could Be Misused to Ban Abortion Nationwide |url=https://www.nytimes.com/2024/04/02/opinion/comstock-act-abortion-repeal.html |url-status=live |archive-url=https://archive.today/20240402124934/https://www.nytimes.com/2024/04/02/opinion/comstock-act-abortion-repeal.html |archive-date=April 2, 2024 |access-date=April 2, 2024 |work=[[The New York Times]]}}</ref> The provisions of the Comstock Act, as currently revised, only pertain to obscene, crime-inciting, or abortion-related articles or mail matter.

In addition to the federal law about half of the states enacted laws similar to the federal Comstock Act.<ref name="Dennett2">{{Cite book |last=Dennett |first=Mary Ware |author-link=Mary Dennett |url=https://books.google.com/books?id=nF4oAQAAMAAJ |title=Birth Control Laws |publisher=The Grafton Press |year=1926 |location=New York}}</ref>{{rp|9}} In a 1919 issue of the ''[[Journal of Criminal Law & Criminology]]'', [[Kansas]] judge J. C. Ruppenthal, after reviewing the various State laws called them "haphazard and capricious" and lacking "any clear, broad, well-defined principle or purpose".<ref name="Ruppenthal">{{Cite journal |last=Ruppenthal |first=J. C. |date=1919 |title=Criminal Statutes on Birth Control |url=https://core.ac.uk/download/pdf/230978929.pdf |journal=Journal of the American Institute of Criminal Law & Criminology |volume=10 |issue=1 |archive-url=https://web.archive.org/web/20171222105252/https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?referer=https%3A%2F%2Fwww.google.com%2F&httpsredir=1&article=1616&context=jclc |archive-date=December 22, 2017}}</ref>

=== Objectives and intent ===
According to psychologist [[Paul R. Abramson (psychologist)|Paul R. Abramson]], the widespread availability of [[Sex in the American Civil War|pornography during the American Civil War]] (1861–1865) gave rise to an anti-pornography movement, culminating in the passage of the Comstock Act in 1873,<ref>{{cite book |last=Abramson |first=Paul R. |author-link=Paul R. Abramson (psychologist) |title=With Pleasure: Thoughts on the Nature of Human Sexuality |publisher=Oxford University Press US |year=2002 |isbn=0-19-514609-3 |page=180}}</ref> but which also dealt with birth control and abortion issues.

The historical enforcement of Comstock-style laws targeted [[pornography]], contraceptive equipment, abortion drugs and devices, materials providing descriptions of contraceptive or abortion methods, materials advertising people with information of or providing for birth control, abortion, or other similar things. A particular concern to historical enforcers was targeting advertisements for abortifacients found in penny papers, with these pills often advertised to women as a euphemistic treatment for "obstruction of their monthly periods".<ref>{{cite web |title=Mrs. Bird, female physician To the Ladies – Madame Costello |url=https://www.loc.gov/item/2002719613/ |url-status=live |archive-url=https://web.archive.org/web/20150520164919/http://www.loc.gov/item/2002719613/ |archive-date=May 20, 2015 |access-date=June 9, 2015 |website=Library of Congress}}</ref>

=== Legislative history ===

==== Brief legislative context ====
As mentioned above, the initial provision of the Comstock Act was enacted in 1872 as a rider to a broader postal service consolidation bill. Afterwards, [[Anthony Comstock]] worked to introduce a stand-alone bill, the Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use, with more comprehensive provisions.

==== Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use ====
Due to his personal connections with Justice [[William Strong (Pennsylvania judge)|William Strong]], Comstock got his bill introduced before the United States Senate by Republican Senator for Minnesota [[William Windom (politician)|William Windom]] on February 11, 1873, as S. 1572. It was reported without amendment from the Committee on Post Offices and Post Roads by Republican Senator for Minnesota [[Alexander Ramsey]] on February 13, 1873. On the following day, through motion by Republican Senator for Connecticut [[William A. Buckingham]], it was recommitted back to that committee. It was later reported with an amendment (by Senator Buckingham) for consideration before the Committee of the Whole, but its consideration was postponed through motion by Democratic Senator for Ohio [[Allen G. Thurman]] on February 18, 1873. Consideration was postponed yet again, this time through motion by Senator Buckingham on February 20, 1873. On February 21, 1873, the bill passed, with the Buckingham amendment, in the Senate by unanimous consent after being read three times. The bill passed without objection in the [[United States House of Representatives]] on March 1, 1873. Finally, the Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use was signed into law by President [[Ulysses S. Grant]] on March 3, 1873.<ref>[https://www.govinfo.gov/app/details/SERIALSET-01544_00_00-001-0000-0000 S. Journal 42-3 - Journal of the Senate of the United States of America, being the Third Session of the Forty-Second Congress; December 2, 1872]</ref>

=== Further legislative context ===

==== YMCA ====
In February 1866, the executive committee of the Young Men's Christian Association ([[YMCA]]) of New York privately distributed a report, written by Cephas Brainerd and Robert McBurney, entitled, "A Memorandum Respecting New-York as a Field for Moral and Christian Effort Among Young Men". This memorandum linked the main message of the YMCA to facts and figures drawn from census, tax, and licensing data. All of this data was used to support the belief held by the Association's leadership that many of its younger and less supervised members had ample time in the evenings to leisure about in bars, casinos, and brothels. The 1866 memorandum was used to support a plan to construct a centrally located building to better serve the younger men of [[New York (state)|New York]].<ref name="Horowitz">{{cite book |author-link=Helen Lefkowitz Horowitz |last=Horowitz |first=Helen Lefkowitz |title=Rereading Sex: Battles Over Sexual Knowledge and Suppression in Nineteenth-Century America |location=New York |publisher=Random House |year=2002}}</ref> However, the memorandum also recommended, in addition to this new building, a "call to action" by the organization's members to investigate whether or not there were any local anti-vice laws in New York. Upon concluding there were none, the group lobbied in the New York State legislature for an anti-vice law. The New York YMCA-drafted bill was successfully enacted in 1868, although with less comprehensive language than had been first proposed. This 1868 law enabled local magistrate judges to issue warrants allowing police to seize and later destroy (upon a guilty verdict) materials ruled "obscene".<ref name="Horowitz" />

==== Anthony Comstock ====
[[Anthony Comstock]], anti-vice activist and namesake of the Comstock Act, got his political start when he campaigned against saloons in [[Brooklyn, New York|Brooklyn]]. Later introduced to the YMCA, Comstock would form close ties with the organization. Along his career, he became unhappy with the before-mentioned New York law and believed in a need for federal legislation. In 1872, Comstock managed to get the initial provision of the Comstock Act added as a [[Rider (legislation)|rider]] to a postal service consolidation bill. Although Comstock had hoped this initial law would be enough to mitigate the postal service's use in facilitating "vice", he soon became disappointed as [[Loophole|gaps]] in the law appeared. To remedy these perceived problems, Comstock worked on a new stand-alone piece of legislation, discussed previously, which passed in 1873.<ref name="Horowitz" /> Anthony Comstock later secured a position as a United States Postal Inspector. In spite of this, the Committee for the Suppression of Vice at the New York YMCA, which would later splinter off to become the [[New York Society for the Suppression of Vice]], requested that he not be given a government salary. By preventing Comstock from receiving a federal salary, as well as any other publicly funded compensation, the organization's directors attempted to prevent claims of self-serving motives and to ensure that Comstock was dependent on their donations.<ref>{{Cite book |last=Starr |first=Paul |author-link=Paul Starr |url=https://archive.org/details/creationofmediapo00star |title=The Creation of the Media: Political Origins of Modern Communications |publisher=Basic Books |year=2004 |isbn=978-0-465-08194-3 |location=New York City |pages=[https://archive.org/details/creationofmediapo00star/page/243 243]–244 |url-access=limited}}</ref>

Extended works of Comstock along the lines of these laws include a petition from the Committee for the Suppression of Vice to include obscene written works that were enclosed in a sealed envelope, an item that was not covered in many renditions of Comstock-style laws, as an item to convict for a punishable offense.<ref>{{cite web |title=Petition for Stricter Obscenity Laws, 1887 |url=http://recordsofrights.org/records/26/petition-for-stricter-obscenity-laws |website=Records of Rights |access-date=2019-11-01 |archive-url=https://web.archive.org/web/20150725202233/http://recordsofrights.org/records/26/petition-for-stricter-obscenity-laws |archive-date=2015-07-25 |url-status=live }}</ref> Other works that he tried to enclose under the range of the laws that used his namesake include international art pieces that depicted scantily-clad women, textbooks for medical students, and other sexually non-explicit items. These efforts left some of his supporters to doubt his intentions. Comstock's career as a postal inspector yielded over 3,600 arrests and the destruction of over 160 tons ({{convert|320000|lb|kg|disp=out}}) of material ruled to be obscene.<ref>{{cite web |website=Kate Chopin |title=Anthony Comstock |publisher=Loyola University New Orleans |url=http://people.loyno.edu/~kchopin/new/related/comstock.html |access-date=2019-11-01 |archive-url=https://web.archive.org/web/20191017044949/http://people.loyno.edu/~kchopin/new/related/comstock.html |archive-date=2019-10-17 }}</ref>

== Historical discourse ==

=== Historical support ===
==== Obscenity arguments ====
As the chief proponent of the law, many of Comstock's justifications revolved around what he believed were the negative effects obscenity would have on children. He argued that moral decay was occurring in schools and in the home because of obscene literature, something he believed youth had easy access to. He also argued that allowing obscenity to flourish in broader society would cause a social breakdown of traditional marriage and of religious institutions. Comstock leaned on support from wealthier families for the majority of his legislative and political success.<ref name="Beisel" /> Clinton L. Merrian, who aided the Comstock Act's passage through the House of Representatives, campaigned its passage on the idea that obscenity threatened [[masculinity]] and that in order to protect it, the mailing of obscene materials needed to be outlawed.<ref name="Beisel" />

==== Contraception arguments ====
As it originally implicated contraceptives, it was argued by some supporters that the Act would help prevent "illicit" sexual relations between unmarried persons, since without contraception, the unmarried would be deterred from having sex due to the possibility of unintended pregnancy.<ref name="Dennett2"/> [[Charles Coughlin|Father Coughlin]], a Catholic priest and radio broadcaster, argued in support of the Act before a 1934 congressional committee, characterizing non-procreative sex as "legalized prostitution". During his testimony, there was heckling from the audience, with one woman calling out to Coughlin, "You're ridiculous."<ref>Engleman, Peter C., ''History of the birth control movement in America''. pp. [https://archive.org/details/historyofbirthco0000enge/page/163/ 163–164]. Prager 2011</ref>

=== Historical opposition ===
==== 1878 repeal attempt ====
Four years after the enactment of the federal law, a petition was circulated by the National Liberal League for its repeal in 1876, garnering between 40,000 and 70,000 signatures.<ref name="Dennett2"/>{{rp|63–65}} Although the petition received positive press coverage, the efforts were stymied when Anthony Comstock showed samples of pornographic material to congressional leaders serving on the same committee for which the proposed repeal act was referred. Comstock claimed that the pamphlets he had shared, a "collection of smutty circulars describing sex depravity",<ref name="Dennett2"/>{{rp|65}} had been distributed by mail to youths and other persons.

In March 1879, the National Defense Association submitted a letter of affidavits to Samuel Sullivan Cox, a congressional representative from New York, for review with the Committee on Post Office and Post Roads.<ref>{{cite web |title=Letter against the Comstock Act {{!}} US House of Representatives: History, Art & Archives |url=https://history.house.gov/Records-and-Research/Listing/c_019/ |website=history.house.gov |language=en |access-date=2019-11-01 |archive-url=https://web.archive.org/web/20181225040359/https://history.house.gov/Records-and-Research/Listing/c_019/ |archive-date=2018-12-25 |url-status=live }}</ref> The National Defense Association had been established in opposition shortly after the enactment of the Comstock Act. The letter of affidavits had been sent in support of the petition from the National Liberal League. Anthony Comstock dismissed the petition after hearing about it, and he asserted that the list was made up of forged signatures and false names. Comstock would also go onto lambast the media for supporting the effort.<ref name="Dennett2"/>{{rp|65}}

==== Birth control movement failures ====
After the 19th century failures, there was no concerted effort to change Comstock-style laws until the start of the [[birth control movement in the United States]] in 1914, led by [[Margaret Sanger]].<ref name="Dennett2"/>{{rp|66}} Between 1917 and 1925, bills were introduced in California (1917),<ref name="Dennett2"/>{{rp|83, 287}} New York (1917, 1921,1923, 1924,1925),<ref name="Dennett2"/>{{rp|73–82, 282–84}} Connecticut (1923, 1925),<ref name="Dennett2"/>{{rp|82, 285}} and New Jersey (1925)<ref name="Dennett2"/>{{rp|82, 286}} to make the contraceptive provisions of state laws less restrictive. In both California and Connecticut, work was undertaken to simply have the contraceptive control provisions eliminated. All these state attempts at change failed to come to a vote so no change happened. There were also failed attempts to eliminate the restrictions on contraceptives from the federal law too, first starting in 1919 with the bill's supposed sponsor failing to introduce legislation. In 1923 a similar bill was reported before the Judiciary Committee, and while it was thought that the majority of this committee favored the bill, they evaded voting on it.<ref name="Dennett2" />{{rp|98–98}} There were also more attempts at change in the 1920s.<ref name="Dennett2" />

==== Free Love ====
The [[Free Lover|Free Love movement]]{{void|Fabrickator|comment|"Free Lover" is a redirect to the anchor "Free Lover" on [[Free love]]}}, which was active in the United States during the Victorian era, made sustained attempts to repeal Comstock-style laws and discredit anything related to the anti-vice movement. This open distaste made free-love movement participants a major target of Anthony Comstock during his personal campaign against perceived obscenity.<ref name="Beisel">{{cite book |last1=Beisel |first1=Nicola Kay |title=Imperiled Innocents: Anthony Comstock and Family Reproduction in Victorian America |date=1997 |publisher=[[Princeton University Press]] |location=[[Princeton, New Jersey]] |isbn=978-0-691-02779-1 |url=<!-- https://press.princeton.edu/books/paperback/9780691027784/imperiled-innocents -->https://archive.org/details/imperiledinnocen0000beis_u4i3 |url-access=registration |access-date=9 April 2023 |language=en}}</ref> Comstock actively targeted individuals associated with the [[Free love movement|Free Love Movement]], particularly those advocating for [[birth control]] and against traditional marriage.{{r|Beisel 1998 ch4}}

Anthony Comstock used the law bearing his namesake to go after those he perceived as promoting immorality.<ref>{{Cite journal |last=Brooks |first=Carol Flora |date=1966 |title=The Early History of the Anti-Contraceptive Laws in Massachusetts and Connecticut |journal=American Quarterly |volume=18 |issue=1 |pages=3–23 |doi=10.2307/2711107 |jstor=2711107 |issn=0003-0678}}</ref> One of Comstock's notable targets was [[Victoria Woodhull]], a prominent figure in the Free Love Movement and an advocate for women's rights. Woodhull and her sister, Tennessee Claflin, published a newspaper called "Woodhull & Claflin's Weekly" which promoted ideas about sexuality that challenged then-prevailing societal norms.<ref>{{Cite web |title=Woodhull and Claflin's weekly {{!}} Digital Collections |url=https://litsdigital.hamilton.edu/collections/woodhull-and-claflins-weekly#:~:text=Woodhull%20&%20Claflin's%20weekly%20is%20a,is%20called%20Woodhull%20&%20Claflin's%20journal. |access-date=2023-11-21 |website=litsdigital.hamilton.edu}}</ref> Comstock had Woodhull arrested and charged with obscenity for publishing information about contraception.{{r|Beisel 1998 ch4}}

==See also==
* [[Banned in Boston]]
* [[Social hygiene movement]]
* [[Obscenity trial of Ulysses in The Little Review|Obscenity trial of ''Ulysses'' in ''The Little Review'']]
* [[D. M. Bennett|The Truth Seeker Obscenity Prosecution]]
* [[United States obscenity law]]

== Notes ==
{{Notelist|group=note}}

==References==
{{Reflist|refs=

<ref name="Beisel 1998 ch4">{{Citation |chapter=Four. Anthony Comstock versus Free Love: Religion, Marriage, and the Victorian Family |date=1998-07-27 |chapter-url=https://www.degruyter.com/document/doi/10.1515/9781400822089.76/html?lang=en |pages=76–103 |access-date=2023-11-19 |publisher=Princeton University Press |language=en |doi=10.1515/9781400822089.76 |isbn=978-1-4008-2208-9 |title=Imperiled Innocents }}</ref>

}}

{{United States Postal Service}}
{{Ulysses S. Grant}}
{{Reconstruction Era}}

[[Category:1873 in American law]]
[[Category:42nd United States Congress]]
[[Category:Birth control law]]
[[Category:United States reproductive rights case law]]
[[Category:Censorship in the United States]]
[[Category:History of censorship]]
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[[Category:United States federal postal legislation]]
[[Category:Birth control in the United States]]
[[Category:Presidency of Ulysses S. Grant]]
[[Category:Sex laws]]
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