The Comstock Act of 1873 is a series of provisions in federal law, currently still in effect and enforced, that generally criminalize the conveying of obscene matter through the post office or common carriers. It also covers crime-inciting matter, or certain abortion-related matter. The Comstock Act is largely codified across title 18 of the United States Code and was enacted beginning in 1872 with the attachment of a rider to the Post Office Consolidation Act of 1872. It was amended multiple times since initial enactment, most recently in 1996. The law is loosely attributed to U.S. Postal Inspector and anti-vice activist Anthony Comstock (1844-1915).
The law was applied broadly for much of its history, but more recently the scope of enforcement narrowed because of various court rulings. Today enforcement is primarily focused on prosecuting child pornography (with the most recent conviction under the Act being made in 2021).
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Preface
The majority of the Comstock Act is found in sections 1461 and 1462 of chapter 71, title 18 of the United States Code. The rest of chapter 71, title 18, United States Code, consists of various provisions from the Child Protection and Obscenity Enforcement Act of 1988 and the PROTECT Act of 2003.
18 U.S.C. § 1461
The first of the two sections of the Comstock Act which are contained under chapter 71, title 18, United States Code, is section 1461. This is the initial Comstock Act provision, as currently amended, and it was first enacted as a rider under Sec. 148 of the Post Office Consolidation Act of 1872. The punishment for violating section 1461 is either a fine, a jail sentence of up to 5 years for a first offense, a jail sentence of up to 10 years for any subsequent offense, or a combination of a jail sentence and a fine, as is stated in its text.
There exists two elements to an offense under section 1461. First, it must relate to that described; chiefly, either obscene or pertaining to abortion. Second, a person must knowingly mail, cause to be mailed, or remove from the mail, anything specified. The following is a brief summary of the matters covered:
- An obscene article.
- An article designed, adapted, or intended for obscene or abortion-causing purposes.
- An article advertised or otherwise described in a manner calculated to lead to its application for obscene or abortion-causing purposes.
- Mail matter giving information as to who, what, where, or how an article (either designed, adapted, intended for use or described in a manner to calculated to incite its use for obscene or abortion-causing purposes) may be obtained or made.
- Mail matter giving information as to from who, where, how, or by what means an act or operation for abortion may be procured or produced.
- Mail matter advertising or representing as to whether or by what means an article may be applied for obscene or abortion-causing purposes.
- Mail matter calculated to incite use of an article for obscene or abortion-causing purposes.
There are a number of implications with these specifics listed in 18 U.S.C. § 1461.
First, as summarized in points 1, 2, and 3 above, this section outright criminalizes activities related to the mailing of three categories of objects and to this extent has been upheld as constitutionally valid by the Supreme Court.
Second, as summarized in point 4 above, this section criminalizes activities related to the mailing of information providing as to from who, where, what, or how an article, already criminalized from being mailed outright, may be obtained or made. Although it holds little precedential value, as it was a decision by a United States district court, this provision was ruled unconstitutional (for being overbroad) in United States v. Goldstein (1976).
Third, laws prohibiting conveyance of material providing information on the procurement of legal abortion were ruled unconstitutional on First Amendment grounds in Bigelow v. Virginia (1975). As far as illegal abortion procurement is concerned, that is criminal solicitation and the First Amendment affords no constitutional protection.
18 U.S.C. § 1462
The second of the three primary sections of the Comstock Act is codified in a positive law title at section 1462 of chapter 71, title 18, United States Code. It was first enacted under the Act of February 8, 1897 before being superseded and re-enacted without much modification as section 245 of the Criminal Code Act of 1909.
The punishment for a violation of section 1462 is identical to that provided for violating section 1461. Similarly there exists two elements to an offense under this section. First, the matter in question has to be of the nature described. Second, a person must knowingly commit any of the specified acts (which in this section is either import, carriage in interstate or foreign commerce, or receipt of the specified material) and implicate in connection either the U.S. mail, a common carrier, or an interactive computer service.
In terms of differences to the previous section, section 1462 deviates in that its scope expands to cover the use of a common carrier or interactive computer service. Section 1461 only applies to the U.S. Mail, but section 1462 covers both that and a private package delivery service such as United Parcel Service or Federal Express. An interactive computer service generally includes an internet website. Another difference of 18 U.S.C. § 1462 is in its scope, which is more limited than 18 U.S.C. § 1461, as it describes three as opposed to the seven particular matters. The three matters specified in 18 U.S.C. § 1462 are:
- An obscene article (to include the additions of 'a thing capable of producing sound' or a 'motion picture film').
- An article designed, adapted, or intended for obscene or abortion-causing purposes.
- Mail matter giving information as to who, what, where, or how an article (either designed, adapted, intended for use or described in a manner calculated to incite to its use for obscene or abortion-causing purposes) may be obtained or made.
18 U.S.C. § 552
There is one section of the Comstock Act found in title 18, United States Code, which is outside chapter 71. This is 18 U.S.C. § 552, and pertains to customs officials acting as principal to certain activity. For abortion-related matter, this section applies to the extent implicating procurement of abortion. This section, currently codified in a positive law title, was first enacted as Sec. 4. of an Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use.
There are four elements to an offense under this section. First, one must be either an officer, employee, or agent of the United States. Second, one must knowingly aid or abet any of the specified offenses (importing, advertising, dealing, exhibiting, sending, or receiving). Third, the knowing aiding or abetting by an officer, employee, or agent of the United States must implicate use of the mail. Fourth, the offense must implicate any of the matters specified. These are summarized below:
- Obscene articles.
- Articles advocating or urging treason, insurrection, or forcible resistance against the United States.
- Mail matter containing true threats of physical harm to or taking the life of any person in the United States.
- Articles containing means for procuring abortion, for which surrounding case law has limited to the unlawful procuring of abortion.
Sec. 305. of the Tariff Act of 1930 (or 19 U.S.C. § 1305)
In addition to the criminal importation provisions under section 1462, there is also a civil forfeiture provision of the Comstock Act. While an earlier version did exist, as Sec. 5. of the Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use, the modern version was initially enacted under Sec. 305. of the Tariff Act of 1930 and is currently codified (in a non-positive law title) at section 1305 of title 19, United States Code. It presently provides that:
All persons are prohibited from importing into the United States from any foreign country any book, pamphlet, paper, writing, advertisement, circular, print, picture, or drawing containing any matter advocating or urging treason or insurrection against the United States, or forcible resistance to any law of the United States, or containing any threat to take the life of or inflict bodily harm upon any person in the United States, or any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is obscene or immoral, or any drug or medicine or any article whatever for causing unlawful abortion, or any lottery ticket, or any printed paper that may be used as a lottery ticket, or any advertisement of any lottery...
This provision has two basic aspects. First and foremost, it subjects certain matters to civil forfeiture. Secondly, it provides a number of exceptions. These exceptions are items imported without the importer's knowledge, bulk abortion-related materials not intended for unlawful use, classic books of recognized merit when permitted by the Secretary of the Treasury, and lottery tickets printed in Canada after 1993 for use in lotteries within the United States.
39 U.S.C. § 3001(e)
The last section of the Comstock Act is found at 39 U.S.C. § 3001 in subsection (e), and it declares that unsolicited contraceptives are non-mailable unless the addressee is a manufacturer or trader in contraceptives, a physician, a nurse, a pharmacist, a hospital, or a clinic. This provision was ruled unconstitutional in Bolger v. Youngs Drug Products Corp (1983), as-applied to business mailings, due to an as-applied First Amendment challenge.
Definitions, knowledge requirement, statute of limitations, etc.
Definitions
Concerning the definitions used in the Comstock Act, there are three key definitions: indecent, obscene, and knowingly.
For purposes of the Comstock Act, the term indecent is defined in the text as including "matter of a character tending to incite arson, murder, or assassination". This distinct definition has been narrowed by court rulings to a synonym for obscene.
The term obscene is not defined in the actual text of Comstock Act, nor is it defined in the text for much of any of U.S. obscenity law, but the Miller test provides the most current definition used by courts when judging obscenity. The Miller Test has three prongs which are as follows:
- The average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest;
- the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and
- the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Knowledge requirement
For reference, under the Model Penal Code, a guide often used to assist in legislative drafting, the knowingly criminal knowledge requirement, the second most stringent behind purposely, is defined as follows: "A person acts knowingly with respect to a material element of an offense when...he is aware that his conduct is of that nature...if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result."
Statute of limitations
As nothing indicates otherwise, and since a violation of the Act is a non-capital offense, it has a 5-year statute of limitations.
Jurisprudence
Contemporary
Context
In June 2022, the Supreme Court of the United States handed down a 6–3 majority opinion in the case of Dobbs v. Jackson Women's Health Organization (2022). This decision devolved regulation of abortion back to the states, overturned Roe v. Wade (1973) along with its progeny, and ended the recognition of abortion access as an implied constitutional right. Consequently, the applicability of the Comstock Act to abortion-related articles has become subject to legal dispute.
Much of this dispute has arisen concerning mifepristone, an antiprogestogen and antiglucocorticoid drug. Mifepristone is approved (under the brand name Mifeprex), in a regimen with misoprostol (a prostaglandin analogue), for ending of a pregnancy up to 70 days gestation. Mifepristone is additionally approved on its own (under the brand name Korlym) as a treatment for Cushing's syndrome. Mifepristone is sometimes used, albeit off-label in the United States, for treating fibroids, treating endometriosis, treating miscarriage, or inducing labor.