For the free speech community, the recent recent oral arguments over the expanded access to the abortion pill, mifepristone, contained a chilling jump-scare as two justices raised the applicability of the Comstock Act.
That 151-year-old law banned the mailing of materials that were deemed “obscene, lewd, [or] lascivious.” The ban included everything ranging from contraception to pornography. It remains one of the most glaring attacks on free speech principles in our federal code.
The relevance of the Comstock Act to the issue of the availability of mifepristone is highly contested and unlikely to draw a majority on the Court. Indeed, while this same argument has been embraced by lower court judges, Justices Clarence Thomas and Samuel Alito appear to be outliers on the Supreme Court in raising its possible relevance in this case.
For some of us, this is a painful reminder that the law continues to linger on our books. In my forthcoming book, "The Indispensable Right: Free Speech in an Age of Rage," I criticize the Comstock Act and call for Congress to repeal it as a protection of free speech. It still reflects the intolerance and arbitrariness of its namesake, the poisonous figure Anthony Comstock.
For the free speech community, naming a law after Comstock is akin to naming a law on business ethics after Bernie Madoff.
Comstock personified the hate and intolerance that sustains censorship systems. He was born to a large, religious Calvinist farming family in New Canaan, Conn. Even in that deeply religious community, he was viewed as especially rigid in his moral views. During the Civil War, when most people were dealing with the horrors of mass casualties, Comstock was denouncing other soldiers for their use of profanity.
Comstock was so widely disliked that, when a reporter once asked an assistant whether he had been punched in the face that morning, the assistant responded, "Probably."
As the founder of the New York Society for the Suppression of Vice, Comstock set about his work of “saving the young from contamination” and “Devil traps." His view of obscenity stretched from lascivious lifestyles to feminism to contraception. He campaigned against women who challenged social and business barriers.
For example, he was unrelenting in his efforts to imprison Victoria Claflin Woodhull and her sister Tennessee “Tennie” Claflin. The two women had committed the offenses of not only setting up their own brokerage house in New York, but also publishing a newspaper openly discussing sexual freedoms.
Comstock was able to secure the appointment as a mail inspector and promised to use the position to perform a needed “weeding in God’s garden." He ramped up his campaign against blasphemy and the writings of “infidels” and “free lusters.”
In the case of Woodhull and Claflin, Comstock pushed to have them arrested over the publication of their newspaper. After they defied him and continued to publish, he went to Connecticut to mail copies of the paper to an alias. He then used the mailing to have the sisters re-arrested for a federal misdemeanor for the interstate mailing. When supporters bailed them out, he had them arrested again.
Despite his lack of success, Comstock was able to get members of Congress to pass the Comstock Act. Always eager to prove their own virtue, members codified his agenda against "obscene, lewd, or lascivious" material.
There he remains, lurking in codified form within our federal code. The act survives for the same reason it was first enacted: Members feel the stigma of rescinding a law purportedly barring obscene material.
It does not matter that we have ample laws criminalizing the transmission of material such as child pornography. Moreover, the Justice Department has maintained in an internal memo that the law should only be enforced where prosecutors can establish actual knowledge by the sender that the material will be used for unlawful purposes. Medically harmful or threatening material can also be subject to criminal or civil actions under other laws.
The applicability of this law to "lewd and lascivious" speech would likely be struck down, but it remains on the books as a statutory affront to our free speech values.
Some Democratic members, such as Rep. Cori Bush (D-Mo.), have called for the Comstock Act to be rescinded.
For the free speech community, these members are uncertain allies in the fight against censorship. Democrats in Congress have overwhelmingly supported censorship and blacklisting of those deemed spreaders of disinformation, misinformation, and malinformation. Some of these members are now using McCarthyist attacks against those who criticize the president or testifying for free speech.
However, the free speech community is used to fleeting allies that rise and recede with the politics of the moment.
The Comstock Act is a relic from one of the most anti-free speech periods in our history. Countless citizens were abused under Comstock and his later-eponymous law. They are the victims of those who professed to "weed God's garden" to rid our nation of "infidels" and "free lusters."
The repeal of the Comstock Act will not materially change the case over the abortion pill or other related cases. It would, however, bring closure to a disgraceful period of history where social and political dissenters were isolated, ostracized, or imprisoned for their views. Ultimately, the most indecent thing revealed by Congress in passing the Comstock Act was the act itself.
The question is whether our current leaders have the courage to stand with liberty over zealotry and repeal the Comstock Act.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.
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