Below is my column in the Hill on the return of the Comstock Act to the national debate. The controversial law came up in oral arguments over the access to the abortion pill in the Supreme Court. The history of the Act, and its namesake, remains a blot on our legal system. The repeal of the Comstock Act is long overdue.
Here is the column:
For the free speech community, the 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 fear 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 intent 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 champions in any 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 testify 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.
Perhaps we can get the Act renamed to the matt Gaetz Act. It seems to fit the man.
It’s misleading, unnecessary and a red herring to introduce God and/or spiritual matters into the question, “What stage of development deserves the label ‘human being?’ ” An egg is not a human being. A sperm cell is not a human being. An egg and sperm join and the almost immediate result is (an admittedly fragile) 1-celled human being called a zygote. If any reader wants to contradict this statement, feel free, no problem, go ahead, knock yourself out.
Please list every quality correlating to humanity that differentiates you from a zygote and vice-verse. This list is truly the crux of the entire subject and puts your signature to your position. Because any quality listed to differentiate level(s) of “humanity” between yourself and a zygote can, could and would be a wholesale justification for genocide on a positively grotesque scale (which is exactly what Roe v. Wade caused.) And it shall also prove how self-serving is your philosophy Re. the Q: “What is a human being?”
In a thread that’s been deleted, an anonymous commenter said that any anti-abortion position for pre-viability must be based on religious beliefs. I pointed out that I have a friend, who is atheist, and a physician, and she is pro-life from conception on. Being as she’s an atheist her reasons have nothing to do with religion, but with her medical training and her understanding of embryology.
Further, the Supreme Court – obviously not setting forth religious beliefs – has repeatedly acknowledged that the government has a valid interest in protecting what it calls “potential life” – meaning fetal life. The word ‘potential’ is not used by the Court in a scientific sense, since human fetuses clearly have actual life, not merely potential life.
Murder is wrong. The Murder of a baby before delivery is wrong.
The question is, WHY is murder wrong? Because the bible tells me so. No idea about how an atheist arrives at a decision.
Because the natural law is written on men’s hearts ❤️
Comstock Load of ….
~+~
On another note. WA had a law entitled “Advertising cures for venereal disease and lost sexual potency” from around 1905 until it was repealed in 1987. In the early 1980s, when of course it was possible to cure several type os sexual transmitted disease, the local departments of health in the counties were actually breaking state law by posting flyers for cures for syphilis and gonorrhea. The legislature finally stepped forward and removed this law.
Seems like the blue laws remain when they are convenient for politicians to use and removed when they are not.
Jonathan: Breaking news! It was bound to happen. “DJT”, the parent company of the DJT social media platform, Truth Social, just sank more than 22% in trading today. Short sellers were having a hay day!
This drop was not coincidental. Trump Media reported sales of just over $4 million but losses of almost $60 million for the full year ending 12/31. With only about 10 million users per month Truth Social can’t attract advertisers so it’s chances of become profitable in the near future look pretty dim. DJT has no fundamental financials that justified the initial stock price.
Well, I tried to warn all you MAGA supporters on this blog who went for one of DJT’s latest scams. I warned you about not buying the stock. I just hope you did not buy heavily. DJT is a pump-and-dump scheme aimed at defrauding investors. But that is something you should have learned long ago!
The shrieking banshees of Woke ideology are today’s Comstocks. They want to jail you for misgendering or mis-pronouning you. And many in Congress are eager to make that law. Mabybe call it the Maddow Law.
Employment of the abortion pill after 24 hours of fertilization is homicide.
The abortion pill, in that situation, is a murder weapon.
When you drive in rural upstate NY at night, you see for miles Comstock, NY. It shines like Las Vegas in a distance. It was named after Anthony, after state had to put new wave of freshly minted criminals somewhere and erected a new prison in the middle of farmland. The only thing in “town” is state prison and parking lots for COs to park their cars. Some old COs living quarters still remain. People still watch porn.
We should repeal the Comstock Act before Democrats find some creative way of using it against Trump.
Jonathan: It’s very doubtful the majority of the SC will endorse a ban on mifepristone. Justices Alioto and Thomas, are usual the out liars. They would use the 151 yr-old Comstock Act to enforce the ban. Even though the Act has not been enforced in nearly a century Alito said in oral arguments: “This is a prominent provision; it’s not some obscure subsection of a complicated, obscure law.” The reason Alito raised the Act is that the supporters of a nationwide ban on abortion are sending a message. They hope that if DJT is re-elected he will appoint an AG to revive the Act and use it without any act by Congress. A back door way to enforce a nationwide ban on abortion. So it’s good to see you are calling for the repeal of Comstock as a direct threat to “free speech values” and “personified the hate and intolerance that sustains censorship systems”.
But it’s unfortunate you don’t show consistency. There is a current threat to “free speech values” in Florida. Yet you have not written one column criticizing book banning that is all the rage under Gov. DeSantis and his 2 year old “Don’t Say Gay” bill. PEN America reports that as of last month 1,406 books have been banned from FL schools. One school district has just pulled dictionaries and encyclopedias from book shelves fearing they contain some “sexual content”. Despite widespread criticism of his policies by teachers, students, school administrators and free speech groups, DeSantis is doubling down. He is pushing through a new rule to punish school principals who refuse to enforce the book bans.
So if the Comstock Act needs to be repealed. as you say, because it is a “relic from one of the most anti-free speech periods in our history” what about Gov. DeSantis’ anti-free speech law? Why aren’t you calling for DeSantis to repeal his bill to “bring closure to a disgraceful period of history”. Now that would show some consistency in your position!
“Yet you have not written one column criticizing book banning that is all the rage under Gov. DeSantis”
Claims to be a lawyer, yet cant find a single book in Florida that has actually been banned
Dennis is upset, the how to books, teaching 8 year old how to give blow jobs are removed from public elementary school libraries.
You’ll have to as Dennis why such instruction is important . . . to him personally.
Its been +8 hours since I asked Dennis to identify just 1 book Florida has banned. A claim he made this morning
Iowan2:
–Anne Frank’s “The Diary of a Young Girl”
–Kurt Vonnegut’s “Slaughterhouse Five”
That’s two. You only asked for one. Escambia County, FL has pulled 1,500 books–including the above plus multiple dictionaries, thesauruses and multiple issues of “Ripley’s Believe it or Not” (Source: Tallahassee Democrat, 1/12/24).
See, your problem is you are in denial. You look through an ideological lens where FACTS don’t matter. You are also lazy. It’s part of the pathology of many on this blog–“don’t confuse me with the facts”. See, the difference between you and me is I take the time to do the research. You could too but you won’t because that might challenge your preconceived notions. It’s not my job to do your research for you. But answer this Q: Name one school district in FL that has not banned books? Or a list of books that have not been banned? Frankly, I don’t expect you to respond because you are too lazy to do the research!
Is an out liar a gay person who never tells the truth?
While SCOTUS is likely to side with the FDA – possibly by 9-0 – on the issue of standing, I expect 2 or more justices to say something about a future Administration being able to enforce the Comstock Act to stop abortion drugs by mail. The FDA does not have the responsibility to enforce Comstock, but the DOJ and USPS do. Repeal of this law is likely to be a big issue in the 2024 election.
One of the Anonymi said earlier on this thread- “It shows republicans were very much and still are for censorship and regulating morality.”
Guess what? So does everybody. The laws against Hate Speech are nothing more than Comstockery dressed up in new clothes. All the bullh!t preached by the Wokesters is nothing more than Comstockery dressed up in new clothes, and the same with all the pro-gender-affirming care evil preached by the Democrat Left. Everybody wants to regulate morality. Frankly, you can not have a human civilization without the regulation of morality. That is the very purpose of Law – to tell you what you may and may not do.
The real question is, what things should be verboten, and what things nicht verboten.
Personally, I am quite happy with the Comstock laws in theory, and only regret that they do not go far enough. IMHO, Christians should demand that their view of morality be enforced. I am 70, and it was a better country when sodomy was illegal, porn was not everywhere, and women were not liberated.
Unfortunately, even the Churches have become namby-pamby, and our country will have to hit rock bottom until some neo-Christian or neo-Muslim society re-establishes basic order in the society. It will probably be Muslims, if our country does not corrupt them too.
“It will probably be Muslims.” Floyd’s prediction is deserving of much thought, as the one and only thing Muslims in America have going for them is unity: united in their identity and religious tenets. If Floyd is right then we have to accept that over the longterm a people whose members are willing to set aside their individual differences and embrace a common set of beliefs can prevail even if far outnumbered by the disunited. United we stand, divided we fall, and given all the forces in politics, education, and media working overtime to breakdown our national identity and cultural tenets, America may go down in history as a failed experiment in self-rule, and Floyd as a 21st century Michel de Nostredame.
If I am right, I hate being right. There was no excuse for us to fall as low as we fallen.
If a given pastor is anti-abortion-pill or anti-birth-control it is their right to preach it to their congregation. But do not insist that others from different churches or none at all follow their religious position.
SCOTUS rebalanced federalism when it struck down §4(b) of the 1965 Civil Rights Act in Shelby County v Holder. That put all 50 States on an equal footing as laboratories of social experimentation. Miller v California retreated from a national community standard to State and local community standards to address pornography. Dobbs moved the constitutional standard for abortion rights from the federal courts- and the national government- again to the 50 states and The People. The best optics would be for Congress to repeal the Comstock Act. Notice, though, that requires an embrace of “don’t let the perfect be the enemy of the good”. That is in short supply in Congress these days. So, like §4(b) of the Civil Rights Act, the Article lll people may have to retire it.
Turley provides an interesting and informative history of Comstock and the Act named for him but that’s hardly the problem with mifepristone and the essence of what the Supreme Court will decide. We have entered an age where chemicals sold as medicine can be “approved” by popular support. The role of the FDA to protect public health is secondary to the public need for chemicals. Take marijuana, for example. For more than a hundred years this drug was identified with social and behavioral problems, addiction, and experimentation with more powerful and toxic drugs. Virtually every mass shooter has had a fling with pot. The FDA dutifully identified the drug as dangerous and time and time again upheld its prohibition as a Class I controlled substance. However, proponents had other ideas and passed referenda and state laws to permit it. Finally, the FDA caved and also recommended its use as “medicine” despite no appreciable medicinal properties in the drug. Now comes mifepristone and once again, it’s throw out the FDA and its evaluations and let the voters have whatever they like. It’s the American way. Oh, and if there should be any adverse effects on patients, we can always take care of that with the civil bar that’s always ready to sue deep pockets for tortious behavior and claims. We can blame FDA in large part for the fact that the Prescription Drug User Fee Act has sold out the agency to the drug industry. In 2023, the FDA collected $1.223 billion in PDUFA fees from the industry. This was so much loot, the agency actually made a profit going forward of $276 million. The FDA is the finest regulator money can buy!
“Virtually every mass shooter has had a fling with pot.”
And with ice cream.
“. . . no appreciable medicinal properties in the drug.”
That is a lie. Ask those on chemotherapy.
“Now comes mifepristone . . .”
Use fallacies and lies to rationalize criminalizing a morning-after drug. Well done.
We had to write a Constitutional Amendment to ban Alcohol. But we just “regulate’ other mind altering substances into the realm of Illegal.
Again. The Administrative state has by-passed the legislative process.
If the FDA says a drug is ‘approved’ what they mean is that bribe price has been approved and accepted.
“The ban included everything ranging from contraception to pornography.”
Some conservatives want to resurrect a law that empowers morality police and vice goons. And those same people are worried about Sharia law infiltrating America.
“Some” conservatives want. . . . .
“some” = Zero
“‘some’ = Zero”
Alito, Thomas, other judges and conservative commentators are “Zero?”
What’s your definition of “one?”
SCOTUS needs a majority. But SCOTUS does not make policy. The Elected have that enumerated power
I will take free speech in all its ugly forms over any attempt by the government to control or impede it. It is the price we have to pay to have free speech. Why do we have to pay that price? The answer is simple. Because the government is always a sledghammer and never knows when to stop and never wants to stop. Governments always want more control because they are run by people and power corrupts people and thereby corrupts the governments that they serve. People, despite their protests of liberality, nearly always want their ideas sailing high above their adversaries or opponents, whatever the cost. (This blog excepted)
Thats why I despise the Sullivan decision. If you libel or slander someone you should pay the price for that act, no matter what the victim’s standing is in society. You would think that would be a contradiction of the first paragraph but I want more than just free speech. I want free speech that is also truthful and thoughtful. Nothing will make you more thoughtful than a lawsuit that exposes your lies. This might also help to diminish personal attacks and bring us back to more liberal discussions of process and government. Of course that might help with pauses for thought (imagine that) before opening one’s mouth. That might even lead to the perpetual silence of AOC.
The government would be excluded from filing suit against any individual or organization.
Lastly on a more serious note.
PURDUE UNIVERSITY IS IN THE FINAL FOUR FOR THE 1 ST TIME IN 44 YEARS.
Led by Zach Edey. 40 points, 16 rebounds and the Largest Canadian in Captivity. (A local humor)
Palmerism
Comstock is a perfect example of how Dems engineer ways around the constitution.
Comstock never addresses free speech. It only “regulates” what can cross state lines. Nothing does the heavy lifting of an all powerful federal government, like the one size fits all, Commerce Clause.
Obama was the Maestro using the power of agencies to violated the protections of the bill of rights.
Dont like guns? Operation choke point, “suggested” lenders may not enjoy the yearly audits, of lenders that provided operating capital, to the the gun industry. Cant ban guns? Just “regulate” the ammunition.
Sneer at Comstock, but Democrats feed daily at the trough of regulatory power. Controlling things they lack the legislative heft to pass their prefered ideology. Or just do it behind the scenes like having the IRS refuse non profit status to conservative organizations. When these abuses are exposed, no consequence befall the corrupt actors
Now apply this reasoning to those questioning elections and demanding their elected officials validate election results
I think we have plenty of lasciviousness already, and we don’t need any more. Comstock may have been a pr!ck and a prude, but is this what you want in your society??? Is this what The Founders meant by Free Speech?
Odd that anyone things she ^ has any talent. She’s just blandly reciting obscene lyrics, no emotion, no sparkle, not even any physical coordination in her attempts at dancing. Drab and degenerate.
I posted earlier how I came across this song, as part of a really good rant. But it must have gotten deleted when the underlying comment was removed. I hate it when that happens. One thing I mentioned was how I knew something was wrong when back in the 1960s, the Beatles came to town, and teenagers went crazy screaming, and trying to tear clothes off them. It has gotten worse, and it has a bad effect way beyond one might think:
Floyd – that was me by the way. And yes I saw your previous comment, and watched the above rant. Thanks for bringing it to our attention. As for the Beatles, I remember seeing those screaming crowds when I was a kid. The whole scene mystified me, I couldn’t imagine why they would all be screaming like that. It made no sense.
Yours as always,
Uncle Henry
That was hilarious, and so true!
Scary part: we have to rely on comics instead of CNN for the truth.