As World of Wonder writer Trey Speegle reported earlier, on Friday, a federal judge in Texas sided with Christian conservatives, and ruled that the Comstock Act prohibits sending the long-used drug through the mail. Then, a Washington state judge, Thomas Rice, issued a separate ruling requiring Mifepristone to remain available. Legal experts say the case is likely to go before the Supreme Court. That means that two federal judges have issued contradictory rulings on whether the drug, Mifepristone, should remain available on the market. The pills are one of two drugs used for medically induced abortions.
The first ruling is from MAGA Texas Judge Matthew Kacsmaryk. He found the Food and Drug Administration ignored the Comstock Act, a federal law enacted in 1873 for the “Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use“. The Act criminalizes the use of the U.S. Postal Service to send any of the following items: Erotica, Contraception, Abortifacients, Sex Toys, Sex Education Materials, and personal letters with any sexual content.
The driving force behind the original anti-smut statutes was New Yorker, Anthony Comstock. A devout Christian and closet case, he was offended by what he saw in New York City streets. He thought the city was filled with too many prostitutes, perverts and pornography.
In the late 1860s, Comstock began supplying the police with information to facilitate raids on sex workers and he became noted for his anti-obscenity crusade. He was especially offended by advertisements for birth control devices, and he focused on the contraceptive industry as one of his main targets. Comstock felt certain that the availability of contraceptives alone promoted lust and lewdness.
In 1872, Comstock traveled to Washington DC with an anti-obscenity bill, including a ban on contraceptives, that he had drafted himself. The next year, on March 3, 1873, Congress passed the new law, known as The Comstock Act. It defined contraceptives as obscene and illicit, making it a federal offense to disperse birth control through the mail or across state lines.
This law was the first of its kind in the Western world. But, the American public didn’t pay attention to the new law. Comstock was jubilant over his legislative victory. Soon after the Federal law was on the books, 24 States enacted their own versions.
New England had the most restrictive laws in the country. In Massachusetts, anyone distributing contraceptives, or information about contraceptives, faced imprisonment. In Connecticut, even using birth control was prohibited by law. Married couples could be arrested for using birth control in the privacy of their own homes. Law enforcement mostly looked the other way, but the statutes remained on the books.
Birth-control advocate Margaret Sanger made it her mission to challenge the Comstock Act. The first successful change in the laws came from Sanger’s 1916 arrest for opening the first birth-control clinic in America. The case that grew out of her arrest resulted in the 1918 Crane decision, which allowed women to use birth control for therapeutic purposes.
The next amendment to the Comstock Law came with the Circuit Court of Appeals decision, United States v. One Package in 1936. The decision made it possible for doctors to distribute contraceptives across state lines. Sanger had been instrumental in maneuvering behind the scenes to bring the matter before the court. While this decision did not eliminate the problem of the restrictive “chastity laws” on the state level, physicians could now legally mail birth control devices and information throughout the country.
Many American citizens complained that new immigrants were tainting the moral fabric of the USA with their radical political beliefs and their permissive attitudes about sex. They worried that members of the lower classes were procreating at a faster rate, in part because better educated, more affluent women were postponing their childbearing years to lead their own lives, free from the dictates of fathers and husbands… or children.
The Comstock Law brought the successful prosecution of more than 36,000 defendants and destroyed over 160 tons of obscene literature under Comstock’s role as Special U.S. Agent. At first, Comstock targeted mail-order services and shops that sold cheaply produced nude photographs. Poor and uneducated defendants were the first to be prosecuted by Comstock who often failed present a defense on their own behalf.
Comstock also targeted art gallery owners for selling European paintings containing naked or partially clad women. But, Comstock’s attempted censorship of traditional art brought a groundswell of opposition. Even the conservative newspapers criticized Comstock for overreaching.
By 1887 many mainstream Americans who had originally supported the Comstock Law were reconsidering that support with concerns over Free Speech. Comstock was not deterred, continuing to prosecute alleged smut peddlers.
By 1900, 24 States had their own versions of the Comstock Act; many were more stringent than the Federal law. The Comstock Law itself was revised several times in the 20th century, but prosecutions for violations of the federal statute continued, even as Americans became increasingly diverse and tolerant. Challenges were made to the constitutionality of the Comstock Law, most of them on First Amendment grounds. Yet, the Supreme Court continued to uphold the Comstock Law into the early 1970s.
Major parts of the Comstock Acts hinge on definitions, particularly of obscenity. Though the courts originally adopted the British Hicklin Test, in 1957 an American test was put into place in Roth v. United States, in which it was determined that obscenity was material whose “dominant theme taken as a whole appeals to the prurient interest” to the “average person, applying contemporary community standards,” and was, “utterly without redeeming social importance.”
The Comstock Law began to change with the 1973 Supreme Court decision in Miller v. California, when the Supremes ruled that material is obscene if: ”(1) the work, taken as a whole by an average person applying contemporary community standards, appeals to the prurient interest; (2) the work depicts sexual conduct in a patently offensive way; and (3) the work, when taken as a whole, lacks serious literary, artistic, political, or scientific value”.
Miller v. California basically says that The First Amendment allows citizens to engage in Free Speech, the Freedom of the Press, the Freedom of Religion and the Right to Assemble. But, these freedoms are not awarded to any American citizen if they put the general population in any sort of harm with their speech, assembly, press or religion.
The verdict of Miller v. California created the ‘Miller Test”. This test is still used to define what is considered obscene or unsuitable for the general public. The Miller Test will take a publication or any piece of art and decide how dirty it is, how it may offend people, and decide whether it is protected by the First Amendment.
Although the Comstock Law was never challenged on grounds that it violated the Miller standards for obscenity, the SCOTUS declared the law unconstitutional in 1983.
The Miller Test is still used today. In 2018, the state of Alabama used the Miller Test to uphold a law making it illegal to sell sex toys (this is not satire). Mississippi and Virginia also currently bans the sale of dildos.
In June 2006, the federal government brought a case against JM Productions of Chatsworth, California in order to classify commercial pornography that specifically shows actual semen being ejaculated as obscene. The four films that were the subject of the case are entitled American Bukkake 13, Gag Factor 15, Gag Factor 18, and Filthy Things 6.
Only the Supreme Court can revise its decision that established the Miller Test. Thanks to the work of the pearl-clutching Republicans, the much-maligned National Endowment of the Arts (NEA) is bound by The Miller Test when presenting works of art.
The documentary This Film Is Not Yet Rated (2006) takes on the X-rating of films and disparities between Hollywood studios and independent films, between gay and straight sexual situations, between male and female sexual depictions, and between violence and sexual content. The films shows that certain films are censored more than their straight, white, male counterparts due to gay sex, even if it is just implied, or Black sex, or female pleasure.