Why the 1873 Comstock Act still matters today

Last updated Oct. 2. 2024.

In 1873, a high school dropout and Civil War veteran traveled to Washington, D.C., and persuaded Congress to pass a law that would impact obscenity law and women’s reproductive health for more than 150 years. His name was Anthony Comstock, and the law would come to be known as the Comstock Act. It was the first federal law to categorize contraceptives and abortion medications as obscene and ban them from the mail. 

These days, few people aside from historians know Comstock’s name, but he is in the news again this year thanks to debates over women’s reproductive health. If elected president for a second term, former President Donald Trump may use this “zombie law” to ban medication abortions and surgical abortions, miscarriage care, and even contraception. Many court cases since the Comstock Act’s passage have challenged and narrowed the scope of the law, and the Biden Department of Justice does not enforce it. But in a post-Roe v. Wade era, pro-life advocates have argued in federal court that the law prohibits the mailing of a medication abortion pill, and some municipalities have passed ordinances requiring residents to comply with it. 

The Comstock Act is cited, though not by name, in Project 2025, a policy plan for a second Trump term created by the conservative Heritage Foundation. And Jonathan Mitchell — the lawyer who wrote Texas’ abortion “bounty hunter” law, who is a possible DOJ head in a Trump administration — told The New York Times, “We don’t need a federal ban when we have Comstock on the books.”

This explainer will tell you everything you ever wanted to know about sex in the nineteenth century, the zealot Anthony Comstock, and his law’s effect on contraception, abortion, and free speech. 

‘Don’t You Know Who I Am? I’m Anthony Comstock!’

At the height of his power as a postal censor, Anthony Comstock carried a revolver, had rage issues, lied to the press, and complained continually about his detractors. Once, he was nearly run over by a mail carriage. He shook his badge at the horse and said, “Don’t you know who I am? I’m Anthony Comstock!” Those who hated him called him “Smutty Tony.” On the way to the Newark jail, an obscene book dealer slashed him in the face and severed his facial arteries. Comstock grew mutton chops to hide his wound. After that he had a new nickname: “Scar-faced Tony.”

Comstock was born in New Canaan, Connecticut, in 1844, the fourth child of his parents and third to survive past infancy. He adored his deeply pious mother, Polly Lockwood, who was a direct descendent of the Puritans, calling her “the loveliest mother that ever lived.” The Comstocks were Congregationalists, and Polly read all her children Bible stories that emphasized self-sacrifice and moral courage. Comstock idolized Polly, who epitomized the “Victorian ideal” — the mother as the religious and moral anchor of family and home. “I cannot but feel that the teachings of my mother are vastly superior to anything that my opponents can offer or recommend,” he said.

When Comstock was 10 years old, he arrived home from school to find his mother dead.  Polly had died of a hemorrhage after giving birth to Comstock’s baby sister, Harriet, her eighth child. 

At 16, he left school to work as a clerk at a country store in Winnipauk (present-day Norwalk, Connecticut). One day he heard that a rabid mastiff was running through the streets. He went to his room, prayed, grabbed a few guns, and went out in pursuit of the dog. After climbing a wall he heard a howl. The dog was 20 feet away, his mouth open and foaming. Comstock scrambled down, the dog approaching him. He raised his pistol, fired, and hit the mastiff in the chest. The dog rolled over and Comstock shot him in the brain, dead. He would later compare obscenity to a rabid dog.

He enlisted in the Union Army at age 19 and was loathed by his fellow soldiers for dumping out his whiskey ration (at least he could have given it to someone else). One day he arrived at his quarters to find that his quarter-mates had set fire to his bunk bed.

During his war service, Comstock masturbated obsessively, though at 19 there is really no other way to masturbate. Ridden with guilt, he diarized his (mostly failed) attempts to avoid weakness and resist Satan’s temptations.

After being discharged from military service, Comstock tried to make his way in the dry goods business in Connecticut with little success. A wealthy banker cousin gave him money and said, “Go to New York and find something to do!”

On Pearl Street in Lower Manhattan, Comstock took a room in a cheap boarding house and immediately felt out of touch with his housemates, who were all young men. By 1860, 46% of the male population of New York was between the ages 15 and 30. At night these men went out to enjoy the “sporting life” — boxing, drinking, playing billiards, reading smut, and buying sex.

At “cigar shops” the salesgirls offered lunch hour sex in upstairs rooms. “Pretty waiter girl” saloons abounded, where all the waitresses were sex workers. The obscene book trade was booming. “Fancy books” described and depicted orgies and group sex. Popular titles included “The Writings of Paul de Kock” and “Women’s Rights Convention.”

Comstock got a job as a porter in a dry goods shop on Warren Street. One day, a coworker told him he had bought a dirty book and became “diseased” (the man likely contracted gonorrhea after visiting a prostitute). Outraged, Comstock decided to get the bookseller arrested, believing the reading material had precipitated the gonorrhea. 

He ratted out the bookseller to a cop, but the cop tipped him off and the bookseller stayed in business. It didn't matter. Comstock had a new side hustle: vice hunting, or roaming the streets to get booksellers arrested. 

He soon realized that most of the dirty books in New York were published by only a few men. If he could buy their bookplates and destroy them, he could stanch the flow of smut. But he needed cash, so he wrote a letter to the New York YMCA to ask for money.

His timing was perfect. Like Comstock, the YMCA scions were concerned about the many dangerous influences on young men in New York. These wealthy, Christians, like financier J.P. Morgan and soap magnate Samuel Colgate, were eager to maintain social order in a changing world. They believed porn, prostitution, birth control, and immigration all threatened to upend society.

They sent him money and soon a YMCA committee began paying Comstock a salary to pursue obscene book dealers. In less than two years, seven people whose arrests he caused committed suicide. “I am sure the world is better off without them,” Comstock wrote. Later, the suicide count increased to 15.

Comstock began to think about a federal law that would make obscenity a more serious crime and criminalize the mailing of abortifacients — medicines that cause abortion — and contraception. Comstock viewed abortionists, mostly women, as preying upon young women who had gone astray. And, in his view, abortion was a means of covering up their “sin” of having sex.

Abortion ads proliferated in newspapers like The New York Herald and New-York Tribune. Though delivery had killed Comstock’s mother, this trauma brought Comstock no empathy for reproductive freedom: He believed his mother had died in sacrifice to her highest duty. 

In 1870 Comstock was married, and he and his wife had a baby girl, Lillie on December 4, 1871. On June 28, 1872, he left them at home with a nurse and went to court to testify against a Nassau Street smut peddler. When he returned, Lillie was dead - of summer diarrhea, a then-common disease in infants. That night he wrote in his diary, “The Lord’s will be done. Oh, for grace to say it and live it!” 

A terrible speller with no legal background and a tenth grade education, Comstock wrote a crude first draft of the Comstock law. The YMCA benefactors enlisted Benjamin Vaughan Abbott, a Harvard Law School graduate who had drafted New York State’s penal code, to revise it, and Supreme Court Justice William Strong, a graduate of Yale Law School, to put it in legal form.

The proposed law made it illegal to mail any “obscene, lewd, or lascivious book, pamphlet, picture, paper, print”; “any article or thing designed or intended for the prevention of conception or procuring of abortion”; and any “information” (advertisements) on how to buy contraception or get an abortion. People could also be punished for sending letters with curse words in them. Maximum fines were $5,000 (equivalent to around $130,000 today). The maximum penalty was 10 years of incarceration.

The YMCA sent Comstock to the nation’s capital to lobby on behalf of the law. To amass support, he laid out what he called his “Chamber of Horrors”: etchings, engravings, dildos, and birth control devices in the vice president’s room under a shimmering chandelier. It was the most shocking display of sex that politicians had ever seen (at work, at least).

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Rep. Clinton L. Merriam of New York, an ally and financial supporter of the YMCA, introduced Comstock’s bill in the House of Representatives. Congress was reeling from the Credit Mobilier scandal, a graft scheme among powerful politicians, and wanted an easy win like a stiff obscenity law.

Only one legislator raised concerns about the birth control portion of the law: Sen. George F. Edmunds, a Republican from Vermont. Edmunds suggested an amendment allowing people to buy contraception from their doctors, but the idea was squelched by a Republican senator from Connecticut, another YMCA ally.

On March 3, 1873, President Ulysses Grant signed the Comstock Act into law and appointed Comstock Special Agent to the Post Office. The next day, Comstock turned 29.

Obscene literature and articles of immoral use

In the 12 years following the federal law’s passage, 24 state legislatures passed “little Comstock laws” modeled on it. Some were even more restrictive than the federal law. Connecticut criminalized the act of trying to prevent pregnancy, which could even include withdrawal, or coitus interruptus.

The YMCA formed the New York Society for the Suppression of Vice and appointed Comstock its salaried secretary. In the society’s Nassau Street office, Comstock displayed a large photo of himself above the rolltop desk.

The effect of the law was immediate. Medical advice books on anatomy, contraception, pregnancy, and childbirth were forced underground, and book sections related to contraception were excised. Health and radical publishers rejected contraception ads for fear of being arrested. Druggists warned customers that small packages would be examined at post offices. In New York, Philadelphia, Boston, and Chicago, condoms and diaphragms became harder to find. And abortionist ads disappeared from newspapers.

Radical publishers and thinkers immediately voiced their opposition to the law. During the 1870s, the “freethought” movement was booming, and this unconstitutional law represented an assault on rights guaranteed in the First Amendment.

Freethinkers, who supported less restrictive divorce laws, open marriage, marriage based on love, separation of church and state, freedom of religion, and freedom of political belief organized to try to overturn the Comstock law. In their newspapers and journals, some of which reached audiences of hundreds of thousands, many anti-Comstockians sold contraceptives like vaginal douching syringes, which could be used for douching after sex. They were furious that the law restricted them, their readers, and their customers. Free love historian Hal Sears called this group “sex radicals.”

Comstock feared and loathed these sex radicals, who he called “long-haired men and short-haired women.” He decoyed them so they would send him their publications, using fake names like “E. Edgewell” and “J. Beardsley.”

Sex radicals filled thousands of columns with anti-Comstock messages. Two papers edited by women began selling vaginal syringes under the name “Comstock syringe.” In 1879, D.M. Bennett, a freethought publisher and writer, was sentenced to 13 months of hard labor for sending free lovers Angela and Ezra Heywood’s pamphlet “Cupid’s Yokes,” which harshly criticized the Comstock law while advocating women’s rights and “male continence,” a form of contraception in which the man orgasms without ejaculating. Bennett died two years after his release from the Albany Penitentiary at the age of 63.

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Anti-Comstockians led by Bennett circulated a petition to revise the Comstock Act, and it received 70,000 signatures. Bennett wrote a pamphlet called “Anthony Comstock: His Career of Cruelty and Crime,” and sent 15,000 copies and the petition to editors and politicians. On Aug. 1, 1878, protesting the arrests of a woman doctor and the free love publisher Ezra Heywood, an anti-Comstock group called the National Defense Association held an Indignation Meeting in Boston’s Faneuil Hall. Six thousand people attended.

But the protests were unsuccessful, and the House law revision committee decided to let the law stand. In later years the Comstock Act was expanded to encompass certain political speech in response to rising anarchist sentiment popularized by Emma Goldman in her journal Mother Earth. In New York state, the Comstock law was revised to criminalize talking about contraception. Emma Goldman was later charged and tried under this provision. 

SIGN FIRE'S PETITION TO POSTHUMOUSLY PARDON PUBLISHER D.M. BENNETT

The last court case Comstock attended, in 1915, was brought against Margaret Sanger’s husband, Bill Sanger, who had given a birth control pamphlet to an undercover detective, who falsely claimed he only wanted to translate it to other languages. In court Sanger called Comstock a victim of “incurable sexphobia.” Comstock shouted at the anarchists and activists in the courtroom.

The judge found Sanger guilty, saying women advocating for the right to vote should instead “advocate women having children.” 

Comstock died just days after the Sanger trial concluded, on September 21, 1915, of pneumonia and “mental strain.” His law would begin to falter in the decades that followed.

The Comstock law’s legacy

The obscenity portion of the Comstock law began to be undermined in United States v. One Book Called Ulysses, when a federal judge ruled that James Joyce’s “Ulysses” was not pornographic or obscene. Ultimately, the Supreme Court in 1957 unraveled the constitutional basis on which the Comstock Act operated, holding in Roth v. U.S., that obscene material had to be judged as a whole, apply primarily to a prurient interest in sex, and lack any redeeming social importance. 

The birth control provisions were also overturned in several cases, including Griswold v. Connecticut. The Supreme Court found that the Connecticut Comstock law violated the right to marital privacy — and after the decision, married women could legally get birth control from their doctors. (Unmarried women could not get birth control from their doctors until 1972.)

The Comstock law is in the news today because of the effect it may have on birth control,  abortion, and freedom of speech. But it also represents an often overlooked inflection point in free speech history. 

In 1902, a group of free speech advocates called the Free Speech League (FSL) held a fundraising dinner for sex educator Ida Craddock, who had been charged under state and federal Comstock laws and been imprisoned on Blackwell’s Island for selling marital advice guides. The dinner was the group’s first official event. 

The FSL, the twentieth century civil liberties group most similar to FIRE, had been founded in 1901 by Theodore Schroeder, in response to suppression of political speech after President William McKinley was assassinated by an anarchist. While Craddock was in prison, the New York State legislature passed the New York Criminal Anarchy Law, which made it a crime to advocate the violent overthrow of the government. FSL members were opposed to the Criminal Anarchy Law and sought “to maintain the right of free speech against all encroachments.” The league supported anarchist, birth controller, and Comstock target Emma Goldman, giving her legal and financial support and defending her right to speak at large venues across the U.S.

In 1920, some FSL members formed the American Civil Liberties Union. Free speech historian David M. Rabban has written that the FSL was the first organization to advocate freedom of speech and the press “for viewpoints its members opposed.” Sex radicals made free speech possible.

FIRE is currently petitioning the Biden administration to posthumously pardon freethought publisher D.M Bennett. A pardon, the petitioners argue, would “send the important message that Victorian-era laws should not be revived to undermine Americans’ individual rights.” 

Amy Sohn is the author of 13 books including the novels "Prospect Park West" and "Motherland." Her most recent, "The Man Who Hated Women: Sex, Censorship, and Civil Liberties in the Gilded Age," tells the stories of eight women prosecuted under the Comstock law. It won a First Amendment award in book publishing from the Hugh M. Hefner Foundation and was named a Smithsonian Top Ten History Book.