The Comstock Act and Freedom of Expression

In 1872, the commissioner of the New York Society for Suppression of Vice made his way to Capitol Hill. He was a devout Christian and anti-birth control advocate from rural New England named Anthony Comstock. Upon moving to New York City, Comstock was horrified by the “immorality” and “obscenity” that he saw on the streets. In response, he drafted an “Act of Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use.” He proposed his legislation to Congress, and it was enacted a year later in 1873. Though it did not specifically define obscenity, the Comstock Act became known as the “chastity acts” and fought against the spread of materials discussing contraceptives and abortion. The punishment was five years in prison with hard labor and a $2000 fine.

Quickly, 24 states created their own version of the Comstock Acts, controlling speech pertaining to contraception at the state level. These laws were most strictly enforced in New England, and particularly Connecticut, where married couples could be arrested for discussing birth control.  Congress hired Comstock to monitor the United States Postal Service in order suppress the transferring of “obscene materials.” He personally called for the arrest of offenders. 

One of those was feminist Ezra Heywood. He published a book in which he declared that women should have control of their bodies. He was arrested along with many who received his book in the mail—including De Robigne Mortimer Bennett. In Bennett’s trial, the judge applied the Hicklin Test established in the British case, Regina v. Hicklin (1868). The Hicklin Test determined “whether the tendencyof the matter charged as obscenity is to deprave and corrupt those whose minds are open to immoral influences, and into whose hands a publication of this sort may fall.” This aligns with the Pre-World War I concept of bad tendency in which speech is punished it has the tendency to invoke illegal action. In 1915, Bill Sanger, the husband of activist Margaret Sanger was arrested for distributed her pamphlet, Family Limitations. During his case, Justice McInerney said: "In my opinion, this book is contrary not only to the law of the State, but to the law of God… If some of these women who go around advocating Woman Suffrage would go around and advocate women having children, they would be rendering society a greater service." As a result, he spent 30 days in jail. 

Unsurprisingly, the Comstock Act faced backlash. In 1878, National Liberal League and the National Defense Association collected 50,000 signatures and presented their petition to Congress. The petition declared that “enforced to destroy the liberty of conscience in matters of religion, against the freedom of the press and to the great hurt of the learned professions.”

Many, if not most, of the Comstock Act’s opponents were women’s rights activists. After all, by suppressing speech concerning birth control, access to birth control was severely limited. The Comstock Act illustrates that when freedom of expression is barred, it can lead to the barring of other freedoms. 

In 1936, the United States v. One Package case pushed back on the Comstock Act by removing some of the birth control provisions. After this, doctors were legally allowed to provide their patients with information about contraceptives. However, in the 1960s, 30 states still had limitations on birth control advertisements. It wasn’t until 1971 that all language concerning birth control was removed.