America's Censor: Anthony Comstock and Free Speech

LaMay, Craig L., Communications and the Law

There are people whose passage through history is so virtuous, scandalous, or loud that their names become synonymous with their activities. Anthony Comstock is known, if at all, as America's most formidable prude and energetic censor during the late nineteenth and early twentieth centuries. He lives on in this manner, his name coined in the pejorative by a newspaper editorial and later given currency by playwright George Bernard Shaw: "Comstockery." Merriam-Webster defines the term as "strict censorship of materials considered obscene" or "censorious opposition to alleged immorality."

A man possessed of no conspicuous talents and having boundless energy, Comstock was the foremost policeman of private vices in America's Gilded Age. Beginning in the 1860s, he became actively concerned with the moral decadence of New York City (where he worked as a dry-goods salesman), targeting in particular the purveyors of what he considered to be obscenity, from imported penny postcards to serious and scientific literature on sexuality. In the early 1870s he began a long association with the New York chapter of the Young Men's Christian Association (YMCA), and formed an affiliate organization, the New York Society for the Suppression of Vice, which he served as its most active and visible executive. In 1873 Comstock went to Washington, DC, where he lobbied for (and won) the federal obscenity statute that he would devote the rest of his life to enforcing.(1) Passed under the aegis of the Post Office Department, the law provided for enforcement through the creation of special agents,(2) a position to which Comstock was appointed and which he held until his death in 1915. Combining the resources of his Vice Society and the legal authority of the Post Office, Comstock spent the next 42 years acting not only as a censor of the mails, but as a policeman of public and private morals, confiscating tons of materials, from literature to condoms, and arresting thousands of people, from pornographers to physicians. The scope of his activities and his skill at self promotion were such that he remains perhaps the best known of the urban vice fighters of his day.

In the scholarly literature on free speech and censorship, however, Comstock's career has until recently received scant attention. For many years there were only two book-length biographies available, Charles Trumbull's laudatory Anthony Comstock Fighter,(3) which was written in 1913, while Comstock was still alive; and Heywood Broun and Margaret Leech's Anthony Comstock Roundsman of the Lord,(4) a some what more critical book published in 1927. A very critical biography of the man was written in 1878 by one of his principal enemies, DeRobigne Mortimer Bennett; it is more polemic than biography.(5) There is a compact article on Comstock in The Dictionary of American Biography(6) written by the eminent historian Mark Van Doren. Finally, there are two unpublished dissertations on Comstock's censorship activities: One is available from the University of Wisconsin at Madison,(7) the other from the library of Teachers College in New York City.(8) More recently, three doctoral dissertations have examined the politics of censorship and contraception that occupied Comstock and his contemporaries.(9) While most of these materials are cited in this article, as well as some other books on censorship, American literature, and regulation of sexual activity, only the three most-recent works look at how Comstock's contemporaries understood the issues that concerned him or attempt to place them in social or historical context. The prevailing scholarly view is that public attitudes about sexuality in the late 19th and early 20th centuries were varied and complex, and that the public did not universally share Comstock's strong views on the subjected.(10)

This article does not quarrel with that assessment, but it examines Comstock's career and public reaction to it from a different perspective: primarily, that of the daily newspapers and magazines which covered his work; and secondarily, of those who most vigorously opposed him. This article employs several primary sources: more than thirty magazine articles concerned with Comstock's activities; Comstock's four books(11); the seventy Reports for the New York Society for the Suppression of Vice; a handful of private letters and memoranda obtained through the Young Men's Christian Association (YMCA) archives in New York City; about forty articles and editorials from the New York Times from the years 1876 to 1915; and a handful of articles and editorials from the two other major New York City papers of the day: Horace Greeley's Tribune and Joseph Pulitzer's World.(12)

Comstock's biographers frequently make mention of diaries he kept, and researchers have spent considerable time trying to track them down. The YMCA archives in New York City do not have them, and John Sumner, who succeeded Comstock as secretary of the Society, always denied any knowledge of them. According to at least one source, however, Sumner was aware that the diaries had been burned to prevent their "falling into the wrong hands."(13)

First Amendment historians readily acknowledge Comstock's power and influence in his own day, and they can point easily to single, celebrated instances of "Comstockery," but they rarely discuss his overall success, which was considerable, or consider the social context in which he achieved it.(14) Frequently, in fact, they treat him as a boorish blot on the history of free expression. As historian Paul Boyer wrote in his book Purity in Print, Comstock was "devoid of humor, lustful after publicity, and vastly ignorant."(15)

This conclusion is justified, but it is also misleading. In general, the press of the day was either ambivalent about Comstock's work or, just as often, supported it. Not until well after his death did large numbers of Americans begin to regard activities such as his as censorship; in his day Comstock embodied the commonly held public view and legal principle that maintaining public decency was within a community's police powers.(16) American thinking on free speech, as represented by most of its literature and virtually all of its case law, was both scarce and conservative during Comstock's own lifetime. Simply placing Comstock somewhere on the intolerant end of the scale by which we measure free speech, as historians sometimes do, is as a consequence intellectually unsatisfying. In Comstock's case, as in others, it is considerably more instructive to examine the social issues that motivated him instead of the record of his suppression. Comstock was the embodiment of Victorian thinking on sex and sexuality, and even some of the harshest critics among his contemporaries believed that the results he sought in regulating sexual behavior were good and justified, even if they abhorred the means he employed to obtain them.

Historians of free expression have tended to underplay or ignore this aspect of his career and its significance. While Comstock indeed confiscated and destroyed tons of what he considered obscene literature, his fundamental concern was not the literature per se but what he perceived as its degenerative effect on sexual behavior. Perceptively, he saw that the greatest threat to social-sexual conventions lay in the implements and practices that relieved the morally degenerate of the consequences of their indiscretions: contraceptives and abortion. The evidence of his concern lay in his 1873 federal obscenity statute, which, aside from the more severe penalties it prescribed for offenders, departed significantly from previous legislation in only one respect: making it illegal to distribute (mail or import) devices for or information about abortion and contraception.(17) Free speech historians' neglect of Comstock's success in this area serves to strengthen the perception that he was a simpleton run amok; by contrast, focusing on it helps tie together the various thin strands of criticism that weave through Comstock's career. Moreover, such a focus provides some explanation for Comstock's declining influence in the early twentieth century, as well as his legacy in our discussion of free speech.

That legacy is a powerful and enduring one. Surely, for example, Comstock would have looked favorably upon the Communications Decency Act (that part of the 1996 Telecommunications Act which sought to regulate the distribution of indecent and patently offensive material on the Internet". The law was signed by President Clinton on February 8, 1996, and provided criminal penalties for anyone who 64 makes, creates or solicits and initiates the transmission of any comment, request, suggestion, proposal, image or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age."(18) In June 1996, a three-judge federal panel in Philadelphia ruled the Communications Decency Act unconstitutional,(19) and in July 1996 the U.S. Justice Department announced its intention to appeal that decision to the U.S. Supreme Court. The Court took oral argument in the case on March 19, 1997 and in July 1997 ruled the Act unconstitutional.

Still another section of the Telecommunications Act invokes Comstock directly. Section 507 of the Act includes a provision that links telecommunications to the 1873 Comstock Law, which remains today, in modified form, part of federal criminal code.(20) The law no longer prohibits the distribution of birth control information, but it does prohibit the importation or interstate carriage of "any drug, medicine, article or thing designed, adapted or intended for producing abortion ... or any written or printed card, letter, circular, book, pamphlet, advertisement or notice of any kind giving away information, directly or indirectly, where, how or of whom, or by what means, any of such mentioned articles, matters or things may be obtained or made.(21) Illinois Congressman Henry Hyde (a staunch opponent of abortion) amended the code to Section 507 of the Telecommunications Act, which, many of his colleagues charged, effectively criminalized the distribution of abortion information on electronic networks.(22)

Of course the Telecommunications Act is only the tip of the public controversy that has surrounded abortion since the U.S. Supreme Court constitutionalized the procedure in Roe v. Wade.(23) In October 1989, the Court decided a Missouri case that returned to the states broad latitude both in restricting the use of public facilities for abortions and in revising the trimester analysis of fetal viability that Justice Harry Blackmun established in Roe. Since then several state legislatures have moved to make their abortion laws more restrictive or, in some cases, to make abortions virtually illegal. Obscenity, too, had become a focus of political discourse in the 1980s, well before most Americans ever heard of the Internet. In May 1989, for example, New York Senator Alphonse D'Amato rose to the floor of the Senate and denounced the National Endowment for the Arts for having funded Andres Serrano's photograph entitled "Piss Christ," and, with dramatic flourish reminiscent of Comstock's own public performances, destroyed a copy of the work before his colleagues. North Carolina Senator Jesse Helms joined the cry, calling Serrano a "jerk" and saying that if the NEA had "no better judgment than this it ought to be abolished and all funds returned to the taxpayer."(24) To make things worse, Washington's Corcoran Gallery, worried that an exhibit by the late photographer Robert Mapplethorpe might draw congressional fire, canceled the exhibit, and having thus drawn attention to itself, drew fire anyway. Meanwhile, President Bush's chairman of the NEA, John Frohnmayer, canceled and reinstated an NEA grant made to Artists Space in New York for a show concerning AIDS. Criticism of the NEA has heightened since then, and has been joined with equally sharp criticism of public broadcasting, the latter for several reasons, but not least the frank sexual content of some of its public affairs and entertainment programs.

This concern about abortion and obscenity and, beyond them, about such things as decorum and civility in public discourse, has precedents in the work of Anthony Comstock. His work to control crime and fraud, and to suppress obscene literature and art, occupied the bulk of his time. But a substantial portion of his caseload also involved forays against abortionists, birth-control advocates, doctors, and sex educators. What is surprising is that this second aspect of Comstock's career has until recently received so little attention. The issue of birth control first gained significant public attention during Comstock's career, a consequence of America's industrial and technological revolution, and the changing patterns of family and social life that resulted from it.(25) Not surprisingly, in the Society's many annual reports, each of which contained a lengthy list of arrests and confiscated materials from the previous year, among the most impressive seizures, in terms of numbers and volume, was contraceptive devices. In this respect, Comstock spoke directly to one of the great social questions of his day.

It was, ironically, a question on which Victorian prudery forbade discussion, private or public. Comstock himself referred to condoms and diaphragms as "articles for immoral purposes, rubber, etc.,"(26) and his supporters often praised him--and he praised himself--for his selfless devotion to such vile and unspeakable work. It is not surprising, therefore, that press reports of the day frequently praised his industry while rarely discussing its specific nature. Nor is it surprising that his critics--and historians, for that matter--focused almost exclusively on his excesses, his attacks on what many considered to be high art or great literature.(27) Very likely Comstock intended many of his more celebrated adventures to generate publicity, though in the long run they probably cost him more support than they gained him. But just as likely, perhaps more so, is that Comstock simply fell out of step with the changing nature of sexual relations, particularly within the institution of marriage. In particular, he was unable to counter changing public attitudes about birth control. In time, he even found himself at odds with the federal government, which by the end of Comstock's career had begun distributing condoms to U.S. servicemen as part of its campaign to curb the spread of venereal disease.(28) What he saw as unequivocal issues of moral turpitude, suffragists, political radicals, and the medical establishment saw more clearly as questions of political and social power, eventually winning public support by linking them to other, more salient issues such as public health or, usurping Comstock, child welfare. Perhaps nothing makes this point more nicely than the fact that Comstock eventually found himself at odds on the birth-control and sexuality question with the YMCA, the organization that originally had put him in business. In 1885 the Association organized an American chapter of the "White Cross Society," which had started in England in 1883 to promote personal purity. Though the White Cross Society emphasized abstinence as the means to this goal, it was not so naive as to forgo, where necessary, giving sexual information to adolescent boys.(29)

I. THE MAKING OF A CAREER

When, in 1917, H. L. Mencken reflected on Anthony Comstock's career, he attributed it to what he called the lasting effects of the puritan spirit: "In Comstockery, if I do not err, the new Puritanism gave sign of its formal departure from the old, and moral endeavor suggested a general overhauling and tightening of the screws...."(30)

Current scholarship suggests that the Puritans were considerably more frank and accepting of sex than Mencken believed, and that a more appropriate term for describing Comstock and his age would be "Victorian."(31) The distinction is an important one. In his observations, if not his nomenclature, Mencken was right: The nineteenth century brought with it several social changes that weakened the puritan family and sexual norms.

As industrial production drew men out of their homes to socialized

workplaces, the economic basis of family unity began to dissolve....

Wives became functionally independent of their husbands while remaining

financially dependent. Furthermore, as industry began to produce outside

the home what women had once manufactured for themselves, women's work

at home became increasingly degraded to mere cleaning, repairing,

consuming and child-raising....

Precisely because male authority was being weakened, the stability of

the traditional family required the imposition of a repressive

ideology.... Victorian prudery was closely connected to the doctrine

of a separate sphere of concerns for women, and ... its essential

definition was the double standard. Seen as a system, Victorian sexual

norms did not impose self-denial and chastity on all, but exclusively on

women.... Victorian moralists argued that sex should be indulged in only

for purposes of procreation. In response, men of all classes often

patronized brothels rather than seek love with their wives. Sexual maws

were slandered as dirty, immoral and undignified and virtually removed

from respectable discussion. The very essence of Victorian

respectability was hypocrisy.(32)

The Victorians created a virtual cult of motherhood, which, while it spoke in delicate and glowing phrases of women, had at its root the belief that the sanctity of motherhood was necessary to protect the morals of men, and through them society.(33) This was precisely the belief Comstock applied to his reform. In all his writings on sexuality, whether on pornography or birth control, his principal concern was always with the corrupting influence of such vices on young men, who might find in them the allure of sexuality and the promise of safety. This was the essence of Victorian prudery, and Comstock was both its personification and its guardian.

The center of Comstock's activities, of course, was the city of New York, and the moral anxieties attending urbanization and immigration were key elements in his crusade. Comstock was born of a reform tradition that was both entranced by and fearful of the "wicked city" and that was particularly wary of educational and welfare institutions that took the place of punitive agencies in dealing with urban problems.(34) Historian Richard Hofstadter wrote:

The whole cast of American thinking in this period was deeply affected

by the experience of the rural mind confronted with the phenomena of

urban life, its crowding, poverty, crime, corruption, impersonality, and

ethnic chaos. To the rural migrant, raised in respectable quietude and

the high-toned moral imperatives of evangelical Protestantism, the city

seemed not merely a new social form or way of life but a strange threat

to civilization itself. The age resounds with

the warnings of prophets . . . that the city, if not somehow tamed,

would bring with it the downfall of the nation.(35)

Comstock was one of those crusaders but, unlike the religiously zealous rural populists of his day, he was a new and conspicuously urban reformer who, backed by wealthy supporters, did his work in a businesslike manner and turned to his advantage whatever opportunities he could. He was, it might fairly be said, an entrepreneur. This aspect of his character and his crusade probably contributed substantially to his success.

Like most of the urban reformers of his day, Comstock was raised in the country. Born on March 7, 1844, in New Canaan, Connecticut, Comstock was one of seven children. His mother, whom he revered, died when he was ten years old. His father, a wealthy farmer and mill owner, remarried, but according to Comstock's earlier biographers he did not much care for his stepmother.(36)

Comstock's fascination with vice began, reportedly, when in his early teens he had his first and last experience with liquor, drinking a bottle of wine with a friend. He awoke the next day with what he called quite a head" and took a trip to the woodshed with his angry father. The lesson stuck; he was never known to drink again, and he had a strong dislike for tobacco.(37) Comstock's biographers all find special significance in an incident that occurred when he was eighteen years old: Hearing that a rabid dog was loose in town and endangering the lives of children and others, Comstock went in search of the animal, found it, and killed it. Afterward he conducted a private campaign against the dog's owner, a reputed bootlegger, eventually raiding the man's property and emptying all the liquor he could find onto the floor. Throughout his career, Comstock referred metaphorically to those he persecuted in the name of the public welfare as "mad dogs."(38)

Comstock fought in the Civil War, enlisting in the Union Army after his oldest brother died at Gettysburg. He served for a year and a half, during which time he kept a diary that revealed, among other things, that he was possessed by a "curious vague sense of sin."(39) in an entry dated November 9, with no year given, he wrote that he "spent part of a day foolishly, as I look back, read a novel part through."(40)

When Comstock left the army in 1865 hoping to join his father's business, he found hard times instead. The farm was mortgaged, and so Comstock left New Canaan and worked a succession of jobs: as a clerk in a New Haven grocery store, as a construction …

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Publication information: Article title: America's Censor: Anthony Comstock and Free Speech. Contributors: LaMay, Craig L. - Author. Journal title: Communications and the Law. Volume: 19. Issue: 3 Publication date: September 1997. Page number: 1+. © 1999 William S. Hein & Co., Inc. COPYRIGHT 1997 Gale Group.

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