Combating the Comstock Act

As they celebrate the second anniversary of their victory overturning Roe v. Wade, anti-abortionists are now setting their sights on eliminating medicated abortions and even contraception. 

The far right has made no secret of its intentions to resurrect the insidious 1873 Comstock Act, which both prohibits the mail delivery of “any article or thing designed or intended for the prevention of conception or procuring of an abortion” and also bans any “obscene, lewd, or lascivious” book or “other publication of an indecent character.” Never repealed, it sits like a loaded gun over the mantel. 

The Comstock Act showed up in the 920-page blueprint for a second Trump administration created by Project 2025, a coalition of conservative organizations. It calls for enforcing Comstock’s criminal prohibitions against using the mail to provide or distribute abortion pills. 

Mainstream journalists have recently begun to draw attention to the far right’s revival of this little-known law. In her June 21 New York Times column, Michelle Goldberg describes how some “MAGA legal minds believe that Comstock could also be wielded to prevent the mail from transporting tools used in surgical abortions.” She quotes Jonathan F. Mitchell, a crusading anti-abortion lawyer who represented Trump before the Supreme Court, saying, “We don’t need a federal ban when we have Comstock on the books.”

Anti-abortion groups are not waiting for Trump’s second term to begin applying this arcane law. When a group of anti-abortion activists challenged the Food and Drug Administration’s approval of the abortion medication mifepristone, they relied on the Comstock Act. Supreme Court justices Samuel Alito and Clarence Thomas cited the law in oral arguments. On June 13, the Court threw out the case but on purely procedural grounds. The plaintiffs and attorneys general of three states have vowed to keep pushing the Comstock Act. 

And last year, a federal court in Texas cited the statute as historical support when it upheld a public university president who canceled a planned PG-rated drag show on campus because he was personally offended.

Liberal opponents have begun to fight back. On June 24, Sen. Tina Smith (D-Minn.) introduced a bill to repeal the Comstock Act, calling it “a 150-year-old zombie law banning abortion that’s long been relegated to the dustbin of history.”

Part of that dark history of the Comstock Act is coming to light in an unusual venue: a request for a presidential pardon. In 1879, DeRobigne Mortimer Bennett, the founding publisher of The Truth Seeker, the country’s oldest continuously published “free thought” magazine, was convicted under the Comstock Act for the crime of mailing a 23-page anti-marriage pamphlet titled “Cupid’s Yokes, or The Binding Forces of Conjugal Life,” written by free-love advocate Ezra Heywood. 

On June 17, Roderick Bradford, the current publisher of The Truth Seeker, submitted a posthumous pardon petition to President Biden and the Department of Justice on Bennett’s behalf. The case is being handled by Robert Corn-Revere, chief counsel of the Foundation for Individual Rights and Expression, a legal nonprofit dedicated to defending the First Amendment.

If successful, the pardon request will not result in overturning the Comstock Act; nor will it prevent anti-abortionists from citing it in future attacks on reproductive freedom. But the petition argues that the granting of the pardon would 

help right the injustice resulting from D.M. Bennett’s wrongful prosecution and conviction, and at the same time send the important message that Victorian Era laws should not be revived to undermine Americans’ individual rights. … A posthumous pardon is not just about the past. The Comstock Act’s legacy of suppression will continue so long as its wrongs remain unpardoned and its illegitimacy remains constitutionally unresolved. Now is the time to call out old wrongs for what they are and to declare our nation’s continuing commitment to the freedom of expression for the future.

The Bennett pardon request, while focusing on the censorship aspects of the Comstock Act, reveals the puritanical motivation behind the law enacted in an era when much of American society was driven by an anti-vice Christian mentality willing to use the law to dictate what people could read and how they should manage the most intimate aspects of their private lives.

In preparing the Bennett pardon petition, Corn-Revere drew upon his own colorful 2021 book, “The Mind of the Censor,” to describe Anthony Comstock’s life dedicated to the suppression of vice. After fighting for the Union in the Civil War, Comstock moved to New York City, where, appalled by the profanity and debauchery of his fellow soldiers and dedicated to upholding strict Christian values, he cultivated his obsession with other people’s morality and sexuality.

Comstock’s concept of immorality was expansive, extending to anything with the most remote connection to sex, including birth control and abortion, as well as novels and news stories, art and even scientific and medical texts. In years to come he would threaten to close down the 1893 World’s Fair in Chicago because the Midway Plaisance included an exhibition with a belly dancer Little Egypt, and in 1906 he waged a campaign against the New York Art Students’ League for using nude models.

Comstock began his four-decade career as an anti-vice crusader in 1873 by establishing the New York Society for the Suppression of Vice. Chartered by the New York state legislature, its agents were granted the power of search, seizure and arrest against anyone suspected of violating morality laws. The organization was rewarded with half of all fines collected in resulting prosecutions. That same year, he gained national attention for his outspoken support of a federal anti-obscenity law. He was so instrumental in getting the law passed it was popularly nicknamed after him. 

Adopted on March 3, 1873, the eve of President Ulysses S. Grant’s second inauguration, it was officially titled an “Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use.” Years later, Comstock would boast that the law had resulted in enough convictions “to fill a passenger train of sixty-one coaches, sixty coaches containing sixty passengers each and the sixty-first almost full.” He was proud that he had destroyed 160 tons of “obscene” literature (including books by Walt Whitman and George Bernard Shaw) and more than 4 million pictures. 

On September 1, 1873, Bennett and his wife, Mary Wicks, based in San Diego, published the first issue of The Truth Seeker. The publication’s mission statement practically dared Comstock to target their new publication, proclaiming its devotion to “science, morals, free thought, free discussions, liberalism, sexual equality, labor reform, progression, free education and whatever tends to elevate and emancipate the human race.” With a national circulation, The Truth Seeker would become the most influential Freethought publication during the period following the Civil War into the first decades of the 20th century, known as the Golden Age of Freethought.

In 1879, Bennett was convicted of violating the Comstock Act for mailing a copy of “Cupid’s Yokes,” which advocated for “sexual self-government” and opposed the institution of marriage, comparing it to slavery. It also advocated for gender equality and equal pay for equal work. Heywood’s pamphlet argued that “by excluding women from industrial pursuits and poisoning her mind with superstitious notions of natural weakness, delicacy, and dependence, capitalists have kept her wages down to very much less than men get for the same work.” 

“Cupid’s Yokes” was intentionally provocative, calling out the Rev. Henry Ward Beecher, the most famous clergyman of the day, for hypocrisy in committing adultery with a congregant, and charging Comstock himself with despotism and cruelty, calling him “a religious monomaniac, whom the mistaken will of Congress and the lascivious fanaticism of the Young Men’s Christian Association have empowered to use the Federal Courts to suppress free inquiry.”

Comstock demonized “Cupid’s Yokes” as “a most obscene and loathsome book” that was “too foul for description,” and castigated Heywood personally as the “chief creature” promoting the “vile creed” of free love. Comstock prosecuted Heywood three times for publishing and selling “Cupid’s Yokes.” After an 1878 conviction for which Heywood was sentenced to two years in prison and hard labor, President Rutherford B. Hayes granted executive clemency. The president wrote in his diary, “it is no crime by the laws of the United States to advocate the abolition of marriage” and he did not consider “Cupid’s Yokes” to be “obscene, lascivious, lewd, or corrupting in the criminal sense.”

But Comstock was not done with Bennett. Bennett had pledged to send a copy of “Cupid’s Yokes” to anyone who asked. Comstock took him up on the offer. Writing under the fictitious name of “G. Brackett,” the undercover moralist ordered several tracts, including “a copy of the Heywood book you advertise Cupid’s something or other, you know what I mean.” When Comstock received the book, Bennett was arrested and was soon convicted and sentenced to 13 months of hard labor in an Albany prison.

The new pardon petition argues that even by the standards of the time, Bennett’s prosecution plainly violated basic principles of free expression. “President Hayes had pardoned Ezra Heywood, the author of ‘Cupid’s Yokes,’ even as Anthony Comstock was prosecuting Bennett for simply making it available. … After Bennett’s conviction, his supporters presented President Hayes with a petition for executive clemency that contained 200,000 signatures. In addition, 15,000 personal letters protesting Bennett’s prosecution reached the president’s desk. Hayes later wrote in his diary, ‘I am satisfied that Bennett ought not to have been convicted.’ But he denied the pardon after Comstock personally intervened to block it.”

The petition now explains that Bennett’s 1879 trial lacked basic constitutional safeguards that we take for granted today: The prosecution was based on passages selected by the prosecutor and not the work as a whole; the question was not whether the book might be obscene for the average person but whether it might tend to affect the morals of a hypothetical child; and it did not matter whether the pamphlet had serious literary, artistic, political or scientific value. Echoing Comstock, the prosecutor proclaimed, “the United States is one great society for the suppression of vice.” 

Bennett’s lawyer was precluded from introducing other books as evidence of what type of literature is commonly accepted in the community. These included assorted works of Shakespeare, “Queen Mab” by Percy Bysshe Shelley, and the “Decameron” by Boccaccio, among others. The judge refused to allow the defense to compare the language of “Cupid’s Yokes” to certain passages from the Bible. The court ruled that the pamphlet was “so lewd, obscene and lascivious” that it would be “improper to be placed upon the [court] records,” and it confined the evidence to 18 passages marked and read to the jury by the prosecutor. Moreover, despite the fact that a publisher was being criminally prosecuted for distributing a pamphlet, Judge Benedict ruled, remarkably, that “freedom of the press . . . has nothing to do with this case.”

Bennett was convicted and sentenced to pay a $300 fine (almost $10,000 today) and serve 13 months’ hard labor at Albany Penitentiary, reportedly one of the nation’s worst. He was over 60 when he was remanded to prison, already in poor health. He died two years after his release.

Comstock’s final case, 33 years after Bennett’s death, was his successful 1915 prosecution of William Sanger, the husband of birth control pioneer Margaret Sanger, for distributing his wife’s pamphlet entitled “Family Limitation.” Comstock died that same year. The law that bears his name was sporadically enforced over the years but lost its force as the Supreme Court expanded constitutional protection for sexually explicit material in Miller v. California and as constitutional protections for birth control and abortion expanded, culminating in Roe v. Wade. Both decisions were handed down in 1973, 100 years after the Comstock Act was enacted. 

Posthumous pardons arising from violations of the First Amendment carry a special resonance. As the Truth Seeker petition argues, they both atone for past injustices and promise better behavior by the government going forward. In 2003, then-New York Governor George Pataki pardoned comedian Lenny Bruce for his 1964 conviction for “obscene” comedy routines. Like the prosecution of Bennett, Bruce’s conviction was illegitimate even under the standards of his day. In announcing the pardon, Pataki said, “freedom of speech is one of the greatest American liberties, and I hope this pardon serves as a reminder of the precious freedoms we are fighting to preserve.” He described it as “a declaration of New York’s commitment to upholding the First Amendment.” (The lawyer who won Bruce’s posthumous pardon was none other than Corn-Revere.) 

The case of Bennett matters even more because of how the Comstock Act is being used today to threaten individual rights. “This petition is not just about the past,” reads the pardon request; “it calls for a reaffirmation of basic constitutional principles that developed as a response to the abuses of Anthony Comstock and his law. Some have suggested a legislative solution and have called for repeal of the Comstock Act. That may be a worthy project, but it is the domain of Congress. Only the President can issue a pardon to help ameliorate the grave injustices of the past while at the same time proclaiming that our constitutional scheme will not tolerate petty moralistic tyrants.” 

In 1931, in his foreword to George Macdonald’s “Fifty Years of Freethought: Being the Story of the Truth Seeker,” legendary trial lawyer Clarence Darrow, in defense of Bennett and other freethinkers, wrote, “It is well for us to remember these men and women who have made it safe to think. The world owes an enormous debt to the fighters for human freedom, and we cannot suffer their names to be forgotten now that we are reaping the fruits of their intelligence and devotion.” 

From the day the Comstock Act became law it suffered from the twin evils of denying a free people the right to choose what to read and write and denying the right to reproductive freedom and bodily autonomy, both without government interference. The day the Comstock Act is repealed or declared unconstitutional, we will be one step closer to living in a country where the morals and religious beliefs of some cannot be imposed by law on the rest of us.