Stamping Out Indecency
The Postal Way
by Lori Klatt Maurice
March 8, 2004
Think laws on the books from 1873 don't affect you? Well, think again.
In January 2004, a letter carrier returned the second postcard in as many years to Dani McIntosh, president of the Washingtonville (NY) Art Society. According to McIntosh, they were returned because they were “too graphic” ("Postcard Sparks Post Office Controversy"). The postcards, promoting the Society's annual exhibit of nude paintings, drawings, and sculptures featured a charcoal drawing of the back of a nude female and a painting of a nude woman sitting in profile (Campanelli).
For over 130 years, laws governing “nonmailable material” have been used to ban books, pamphlets, pictures, papers, and letters from the U.S. Mail. Throughout the 20th century, applications of these laws have denied mailings of a political nature, information on reproductive services, and items deemed “indecent” or “obscene”. In one Washington state community, they were imposed to permanently revoke the local post office and in 1996, the law dealing with obscenity was revived in an attempt to criminalize speech about birth control and abortion on the Internet.
The first federal law controlling distribution of obscenity through the mails was on the books by 1865. The laws dictating which items the U.S. Postal Service deems “nonmailable” were expanded with Section 211 of the Penal Code, commonly known as the Comstock Act. Under the Comstock Act, “the obscenity law was amended to provide that ‘the term “indecent” shall include matter tending to arson, murder, or assassination. The word ‘tending' gives almost limitless leeway in interpretation.” (Dennett 211-212) Congress called it an “Act of the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use”. The “publication, distribution, and possession of information about or devices or medications for ‘unlawful' abortion or contraception” were criminalized under this act. ("Comstock Act") “Doctors, scientists, and pharmacists could be prosecuted for disseminating information on reproduction and contraception. Medical and scientific works were also vulnerable to attack, and their writers sometimes resorted to self-censorship in order to protect themselves” (Hull 63). Literary classics such as those by James Joyce, Theodore Dreiser, Henry Miller, D.H. Lawrence, John Cleland, Sigmund Freud, Honore de Balzac, Leo Tolstoy, Emile Zola, Vladamir Vladamirovich Nabokov, Voltaire, Margaret Mead, Bertrand Russell, Sinclair Lewis, Ernest Hemingway, and George Bernard Shaw have been censored under this law. In 1905, after his play, “Mrs. Warren's Profession”, was attacked by Comstock, Shaw responded by coining the pejorative term “Comstockery” "meaning strict censorship of materials considered obscene or censorious opposition to alleged immoral material" (as in literature). This word remains part of our American language (Zipperer).
The Comstock Act is named for Anthony Comstock, a dry goods salesman and Christian zealot who dedicated his life to the crusade against obscenity. In 1873, Anthony Comstock persuaded the financiers of the YMCA to invest in the New York Society for the Suppression of Vice. (Zipperer). This same year, as secretary for the Committee for the Suppression of Vice, Anthony Comstock lobbied Congress and succeeded in getting the law passed. The bill was introduced to Congress on February 11th and was “passed by both Senate and House without discussion of its provisions on the floor, without any roll call in either house, without any official report from the Committee on Post Offices and Post Roads to which it was referred; but by ‘unanimous consent' and ‘suspension of the rules' it was jammed through, just in time to be the last bill of the session signed by President Grant on March 3rd” (Dennett 214). In less than three weeks, Congress passed one of its broadest censorship measures, so broad it reaches to touch us into the 21st century.
Upon passage of the Act, the Post Office gave Anthony Comstock the commission of Special Agent of the Post Office. This was, at first, an unpaid position armed with powers of arrest. At taxpayers' expense, he traveled the country pursuing obscenity and its perpetrators. What was deemed “obscene” was within Comstock's personal discretion. His slogan was “Morals, not Art or Literature” (The Obscenity Report 82). Within the first six months, Anthony Comstock seized "194,000 obscene pictures and photographs, 134,000 pounds of books, 14,200 stereopticon plates, 60,300 rubber articles, 5,500 sets of playing cards, and 31,500 boxes of aphrodisiacs" (Hafferkamp). Comstock bragged in 1913, two years before his death, that he had been responsible for the criminal conviction of enough people to fill a 61-coach passenger train-over 3,600 people (Hafferkamp). He was responsible for the destruction of 160 tons of literature and pictures.
Contraceptive literature also fell under the sexual prohibitions of the Comstock Act. A pamphlet by Edward Bliss Foote, claimed inventor of the rubber diaphragm, was the first American publication on birth control to run afoul of the Comstock law. In 1876, Foote was fined $3,000 for publishing his pamphlet, Confidential Pamphlet for the Married; Words in Pearl for Married People Only, and birth control information went underground (Hafferkamp). Even in medical textbooks, contraception was unmentionable.
Margaret Louise (Higgins) Sanger, working as a nurse in New York ghettos saw many preventable deaths due to child labor and self-induced abortions. Upset by the inability of most women to obtain accurate and effective birth control, Sanger challenged the Federal Comstock law and various “little Comstock” state laws that banned dissemination of contraceptive information. The first issue of her feminist monthly, The Woman Rebel , was published in March 1914. Its goal was to get working women to think for themselves. By August 1914, three issues of The Woman Rebel were banned for promoting use of contraception and Margaret Sanger was indicted on 9 counts of violating the Comstock postal obscenity laws. Sanger jumped bail in October and fled to Europe under the alias “Bertha Watson”. While in transit, she ordered the release of 100,000 copies of her 16-page pamphlet, Family Limitation , which offered explicit advice on the use various birth control methods. In 1915, her husband, William Sanger, was arrested and jailed for 30 days for giving copies of her pamphlet to an undercover postal agent (Katz). Anthony Comstock, at the height of his power, appointed by President Wilson as the International Purity Congress delegate in San Francisco, testified at his trial. He died shortly after on September 21st (The Obscenity Report 83) .
Margaret returned the United States in October and in 1916 was indicted and acquitted of the postal obscenity charges. Later that same year, Sanger and her staff were arrested for operating America's first birth control clinic in Brownsville, Brooklyn. The clinic was raided 9 days after it opened. The publicity surrounding her 30-day imprisonment brought a wealthy support base from which she was able to build a movement for birth control reform. Sanger was convicted on the Brownsville ruling; however, the New York appellate court ruled physicians exempt from the law banning distribution of contraceptive information to women if prescribed for medical reasons (Katz). Although Sanger failed in her legislative efforts to secure government support for birth control she achieved some success through the courts. In 1936, The U.S. Court of Appeals exempted physicians from the Comstock Law's ban on the importation of contraceptive supplies. This allowed doctors the right to prescribe and distribute contraceptives. Importing contraceptives for personal use, however, was banned until 1971.
Mary Coffin (Ware) Dennett, an advocate of birth control and sex education, also ran up against the Comstock Law. In 1915, Dennett unsuccessfully searched the Public Library, bookshops, and the American Social Hygiene Association library for a “right sort of little book” to teach her fourteen- and ten-year old sons about sex. After becoming discouraged with “books…written on a wholly false basis” and those which “in the most important parts predicated upon…shame and fear” (Dennett 4), Dennett opted to write her own explanation. Her manuscript, The Sex Side of Life-An Explanation for Young People, was loaned out frequently to the children of Dennett's friends. The paper was also published in the February 1918 edition of the Medical Review of Reviews and reprinted shortly afterwards in The Modern School . Dennett's manuscript was printed in pamphlet form. Word of mouth led to circulation reprint demands of “five thousand at a time” (Dennett 7).
In her book, Who's Obscene? , Mary Ware Dennett states,
There was one group of eager readers that has always interested me particularly-namely the Post Office clerks. As the demand for the pamphlet grew, I found that more and more envelopes reached the people to whom they were addressed empty, or else they never arrived at all. (The pamphlets were sent in the unsealed clasp envelopes which are ordinarily used for literature of this sort.) I did not keep account of the number which thus had to be replaced, but it was surprisingly large. I was patient at first about the losses, for if the Post Office clerks were so hungry for knowledge that they were willing to pilfer it, they must have needed it rather badly. However, as their hunger seemed insatiable and their numbers seemed endless, I presently resorted to mailing the pamphlet in sealed envelopes.
Out of the clear sky, with no premonitory hint, on September 2, 1922, after the pamphlet had been in published circulation for four and a half years, it was declared unmailable as obscenity.
Mary Ware Dennett, after unsuccessfully lobbying the New York legislature to remove contraceptive material from the state law, campaigned to remove contraception from the federal Comstock Law, the basis for state laws. In 1919, Dennett reorganized and renamed the National Birth Control League as the Voluntary Parenthood League. Whereas Margaret Sanger favored amending the law so only physicians could circulate birth control information, Dennett, as Director of the VPL, sponsored a bill to “remove the words ‘preventing conception' from the federal obscenity laws” thus allowing open distribution of contraceptive information (Chen 212).
In the following two and a half years, Mary Ware Dennett made little progress finding someone in Congress to introduce the bill. However, she saw an alternative as she read quotes from William Hays, the new Postmaster General, in the New York Times.
“It is no part of the primary business of the Post Office Department to act as censor of the press. This should not and will not be” (Editorial, April 29, 1921). “The arbitrary power to decide what is and what is not a public benefit was never intended to be lodged in the Postmaster General. It shall not be assumed” (May 26, 1921). “I want again to call attention to the publishers to the fact that I am not and will not allow myself to be made a censor of the press” (August 15, 1921). “Our method of safeguarding the public welfare, while at the same time maintaining the freedom of the press, has been through a long period of stable civil liberty better for the public welfare and personal security of citizens, than to establish a bureaucratic censorship which in its nature, becomes a matter of individual opinion, prejudice or caprice” (December 9, 1921).
Postmaster General was a presidential cabinet position in those days and Hays could wield great clout in Washington. Mary Ware Dennett thought “Congress would find it far easier to revise the obscenity law by recommendation of the Postmaster General on the grounds of restoring constitutional freedom of communication than…plucking out the contraceptive section from all the rest of the ‘obscenities,' in response to the pressure of the birth control movement." She met with Hays on August 13, 1921. In her notes she wrote, “He expressed positive and cordial approval of all the chief practical arguments in favor of the change of the laws now;…Said he wanted to do the right thing, and he knew the time was ripe” (Dennett 20).
William Hays never asked Congress to revise the postal obscenity statute. In fact, on March 4th , 1922, just one year after his appointment, William Hays retired and accepted a position as president of the Motion Picture Producers and Distributors of America. While in this position, he promulgated the self-regulatory Motion Picture Production Code of 1930 also known as the “Hays Code”. The code established standards of “good taste” as well as a list of dos and don'ts for the film industry. Article II of the code states “ Sex hygiene and venereal diseases are not subjects for motion pictures” and Article IV of the Code, titled Obscenity, states: "Obscenity in word, gesture, reference, song, joke, or by suggestion (even when likely to be understood only by part of the audience) is forbidden." (The Motion Picture Code of 1930). Whether Hays was stringing Mary Ware Dennett along or had a change of heart in the nine years between his Post Office commission and his implementation of the Hays code remains a mystery of history.
The Comstock Act was not employed only in suppressing contraception and sex related information. In the early 1900s, it was also used as a means for prosecuting with alternative philosophical and political views.
In 1895, Glennis, a social experimental village near Eatonville, Washington, broke up and three families from this village, George and Sylvia Allen, Oliver and Delaney Verity, and B.F. and Annie Odell went searching for a new home along Puget Sound. They chose a site on Von Geldern Cove, an arm of Carrs Inlet, as the place where they could enjoy the “ideal way of life” (Ryan). Wanting to establish a community of “liberal people” (Ryan), the fundamental principle of the colony was tolerance and independence. They named the community Home. Oliver Verity realized they would need to publicize the founders' views to attract others to their community. In June 1887, he printed Home's first newspaper, New Era . The first issue “described the community, its liberal spirit and freedom from laws, as well as the beauties of Puget Sound” (LeWarne 173). It was widely circulated throughout radical sets across the nation. Having a reputation as a place where “freedom and tolerance prevailed” (LeWarne 174) , Home attracted a variety of individuals including Charles L. Govan, a printer. The New Era had died by the time he arrived and Govan, Verity, and a group who considered themselves anarchists started a new paper titled Discontent: Mother of Progress . Although the community did not purport to be anarchistic, “the writings of the most vocal residents tended to sharpen the thinking of the whole community and to reinforce its reputation elsewhere” (LeWarne 174).
Discontent attracted various controversial figures to Home. Among them were Henry Addis and Abner J. Pope, publishers of a Portland, Oregon anarchist newspaper, Firebrand . In September 1897, Addis and Pope, along with their editor, Abe Isaak, had been arrested and their paper closed for sending an allegedly obscene poem by Walt Whitman through the mail. After arriving at Home, Discontent became their new project. Emma Goldman, another notable anarchist, frequented Home and often gave lectures while she was there.
On September 6, 1901, President McKinley was shot in Buffalo, New York. He died six days later. His assassin was Leon Czolgosz, a self-proclaimed anarchist. Americans who already believed anarchists were violent and intent on destroying the law and government by any means became alarmed. A wave of anti-anarchism swept the nation. Abe Isaak and Emma Goldman, among others, were imprisoned.
In January, Discontent printed an article written by James W. Adams defending free love and criticizing formal monogamous marriage as hypocritical. Federal officials charged the editor, James E. Larkin, the printer, Charles L. Govan, and Adams with mailing obscene literature. They were arrested on September 24th . They responded in the December 18th issue of Discontent:
As DISCONTENT has steadily avoided sensationalism, and has devoted its columns exclusively to the serious discussion of social problems, it is manifest that this accusation is a transparent subterfuge, designed to veil a formidable attack on the liberty of the press. As it is plainly unjust that men should be sent to prison to gratify the personal spite of a petty postal official, or the ignorant malice of those who would meet every new idea with persecution, a defence committee has formed, with headquarters at Home, Wash., to take charge of the legal contest.
The charge against Govan was later dropped. The case against Larkin and Adams, encouraged by Postal Inspector C. L. Wayland, was heard on March 11, 1902. Judge C. H. Hanford, after examining the article, deemed it radical, but not licentious or obscene.
Two other colony members faced similar indictments. Lois Waisbrooker, born Adeline Eliza Nichols , was seventy-five years old and had been writing and editing books and articles about utopias, feminist science fiction, sex, marriage, and women's issues for over thirty years. Among these were Helen Harlow's Vow (1870), The Sex Revolution , (1894), and Suffrage For Women, The Reasons Why (1868). She had been imprisoned several times for violating the Comstock Act (Helen Harlow's Vow). In 1901, she moved to Home from California. While at Home, she published a monthly journal, Clothed with the Sun . Mattie D. Penhallow was the postmistress for Home. They were indicted for an article published in the December 1901 issue of Clothed with the Sun titled, The Awful Fate of a Fallen Woman ; Waisbrooker for publishing it; Penhallow for mailing it. Penhallow was acquitted but Waisbrooker was found guilty and fined a minimal one hundred dollars by the sympathetic judge (LeWarne 184).
During this same time, Discontent was experiencing distribution problems. According to James F. Morton, Jr. in the December 18th issue,
The papers left the local postoffice promptly and regularly…Oliver A Verity proceeded to Tacoma in the interest of the paper, to learn where the difficulty lay. At the Tacoma postoffice, the astounding information was elicited that orders to hold DISCONTENT, pending investigation, had been received from the ‘inspector in charge' in Spokane. No reason could be obtained for this arbitrary procedure; and the postmaster professed to be entirely in the dark as to the matter.
After the inquiry, the issues were released and delivered with no further explanation.
Meanwhile, the federal grand jury from the Adams indictment, again spearheaded by Postal Inspector C. L. Wayland, filed a special report regarding the Home post office. Postmistress Penhallow had been questioned by Wayland the same day Govan, Larkin, and Adams were arrested. She introduced herself to Wayland as an anarchist, opening herself to dismissal. Rumors that she would be replaced by someone more government friendly abounded. However, Wayland had a more stringent answer to the problem at Home.
The Post Office closed in April 1903 and “no amount of complaining over the years has budged the U.S. Postal Service” (Retherford). Local mail was routed through the Lakebay Post Office. In 1958, the post office was relocated to Home but kept the Lakebay name. Home residents still are trying “in vain to convince U.S. postal officials to make their post office and mailing address reflect the name of their community.” Postal officials have refused because “among other reasons, it wouldn't be cost effective”. Today, “residents must pay a $7 fee to have their addresses listed as Home, rather than Lakebay, in phonebooks and directories” (Marchionni).
“On Wayland's recommendation, the grand jury agreed that the post office be closed. The jurors' statement labeled Home ‘a settlement of avowed anarchists and free lovers, the members of which society on numerous instances, with the apparent sanction of the entire community, have abused the privileges of the postoffice establishment and department.' For more than two years and with the full knowledge and compliance of the postmistress, residents of Home had mailed ‘non-mailable matter and matter calculated to corrupt and injure the members of the body politic.' Despite indictments for such conduct, the residents had remained ‘defiant' and unwilling to cease their activities.” The jury concluded, “ ‘the postoffice at Home [should] be abolished, and the privilege which the members of this society have so long abused be taken from them.' Judge Hanford forwarded the recommendation to postal authorities in Washington, D.C.” (LeWarne 185).
Under the Espionage Act of June 1917 and Sedition Act of May 1918, the Postmaster General Albert Sidney Burleson was authorized to ban from the mails any matter violating the Act or “advocating or urging treason, insurrection, or forcible resistance to any law of the United States”. Fines could range up to ten thousand dollars and prison sentences up to twenty years. Postmaster General Burleson interpreted this act broadly, siezing and suppressing "all kinds of publications that he deemed radical, dissenting, or otherwise supspect" (Espionage History). Under it, many were prosecuted. Juries, allowed to decide whether a defendant's speech violated the Act, routinely returned guilty verdicts.
In Shaffer v. United States (9th Cir. 1919), the defendant was found guilty of possessing and mailing copies of the book, The Finished Mystery , which contained the passage, “standing opposite to these Satan has placed [a] certain delusion which is best described by the word patriotism, but which is in reality murder, the spirit of the very devil. [If] you say it is a war of defense against wanton and intolerable aggression, I must reply that [it] has yet to be proved that Germany has any intention or desire of attacking us. [The] war itself is wrong. Its prosecution will be a crime. There is not a question raised, an issue involved, a cause at stake, which is worth the life of one blue-jacket on the sea or one khaki-coat in the trenches.” The 9th Circuit Court of Appeals ruled that “the service may be obstructed by attacking the justice of the cause for which the war is waged, and by undermining the spirit of loyalty which inspires men to enlist or to register for conscription in the service of their country” (Stone) .
Thirty German-Americans in South Dakota were convicted for signing and sending a petition to Governor Norbeck demanding reforms in the selective service procedure. The signers of the petition “threatened” to vote the Governor out of office if he did not meet their demands. The government charged that the defendants had willfully obstructed the recruiting and enlistment service (Stone).
The day after the Espionage Act passed, Postmaster General Burleson issued a confidential letter to postmasters across the country. Burleson “asked postmasters to be aware of the new law, enclosed excerpts from it, and directed them to ‘keep close watch on unsealed matter which may be receive or deposited at your office, and to withhold such matter of the character above described from dispatch or delivery as the case may be, and submit samples to the Solicitor for the Post Office Department for instructions" (Jevec and Potter).
Between 1917 and 1921, postal workers seized hundreds of samples. “Often, the language of the publication prompted its seizure. Materials in German, Ukranian, Lithuanian, Russian, Spanish, French, Yiddish, and other languages made their way to the Solicitor for the Post Office Department” (Jevec and Potter). Other times, material was seized on title alone. Publications with titles such as "Soviet World, The Proletarian, Russky Golos [Russian Voice], The Red Army, The Socialist, The Old Red Flag, We the Anarchists, Trial of Eugene Debs, Revolutionary Socialism, Young Socialists' Magazine, The Communist World, El Communista, The Industrial Socialist, Der Armen Seelen Freund [Poor Souls Friend], and Die Krise in der Deutschen [The Crisis in the German Social Democracy]" were sent on to the Post Office “B-Files” (Jevec and Potter).
Postal workers also detained materials from organizations or individuals regarded as radical. They seized a letter from Upton Sinclair as well as membership cards and literature from Industrial Workers of the World (the I.W.W. or “Wobblies”).
Also banned from the mails was the August 1917 issue of The Masses , a monthly “anti-establishment” journal that featured authors such as Max Eastman, John Reed, Carl Sandburg, Bertrand Russell, Louis Untermeyer, Upton Sinclair, William Carlos Williams, Dorothy Day, and Sherwood Anderson. Postmaster General Burleson argued that the cartoon titled “Conscription” by Henry J. Glentenkamp and the following poem by Josephine Bell, an homage to Emma Goldman and Alexander Berkman who were jailed for obstructing the draft, violated section 3 of the Espionage Act. Eastman and Reed, the editors, were indicted and tried for willfully causing or attempting “to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces” and obstructing “the recruiting or enlistment service of the United States”. (16)
|Emma Goldman and Alexander Berkman
Are in prison.
Although the night is tremblingly beautiful
And the sound of water climbs down the rocks
And the breath of the night air moves through multitudes and multitudes of leaves
That love to waste themselves for the sake of the summer.
Emma Goldman and Alexander Berkman
Are in prison tonight,
But they have made themselves elemental forces,
Like the water that climbs down the rocks:
Like the wind in the leaves:
Like the gentle night that holds us:
They are working on our destinies:
They are forging the love of the nations:
Tonight they lie in prison. (17)
After the publisher agreed to avoid such matter in the future, Burleson refused to reinstate the journal's mailing privileges on the grounds it was ineligible as a regularly issued periodical since it had skipped an issue. Burleson also suppressed the socialist Milwaukee Leader and banned Thorstein Veblen's Imperial Germany and the Industrial Revolution from the mails (Kennedy 77). In 1918, the September 14th issue of The Nation was barred because of an article criticizing the governments labor policies (McCoy).
In total, the government obtained 1,050 criminal convictions under the Espionage Act. Several made their way to the Supreme Court. All were upheld. One of the most famous was Schenck v. United States . Charles T. Schenck, general secretary of the Socialist party, printed 15,000 copies of a pamphlet opposing conscription and U.S. involvement in World War I, some of which were distributed to men accepted into the armed forces. His conviction for obstructing the draft was upheld. Justice Oliver Wendell Holmes argued that the First Amendment might protect this speech “in ordinary times” but is punishable when there is a “clear and present danger” that the speech will cause harm –as when someone causes a panic by falsely shouting “fire!” in a theater.
In 1927, the Post Office and the Customs Bureau issued a list of 739 books and pamphlets to be banned by department officials. The arbitrary list included many foreign books that had been published in America in English for years without prosecution. “Other volumes were passed in the English version and excluded in the French or Italian; or excluded in Spanish while being passed in French or Italian.” Pressure by Senator Bronson Cutting of New Mexico caused the list to be withdrawn in 1930 (The Post Office Censor 6).
Other cases of arbitrary enforcement abounded. In September 1911, a report by the Chicago Vice Commission, headed by Dean Summer of the Episcopal Church, was banned from the mails. “The May 1926 issue of The New Masses was barred from the mails after the June and July issues had been distributed.” On January 30, 1929, stickers from the All American Anti-Imperialist League reading “Protest Against Marine Rule in Nicaragua” were banned while stickers issued on June 11 by the “Emergency Committee on United States Policy in Nicaragua” reading “Protest Against Marine Rule in Nicaragua” were not. In 1930, media advertising the book Rasputin were banned although the book was not. Under the Comstock Act, magazines containing ads for obscene material could not be sent through the mails. (The Post Office Censor 8-9 )
On April 5, 1927, H.L. Mencken, editor of The American Mercury was arrested for selling obscene literature. At issue were two articles in the April edition of his magazine; “Hatrack” was a chapter from an upcoming book about a prostitute by Herbert Asbury; the other article, “The New View of Sex”, was an editorial essay written by George Jean Nathan and printed in the “Clinical Notes” section. Mencken was tried and acquitted two days later. The day after the trial and after all the April issues were mailed to subscribers, the Solicitor of the U.S. Postal Service Department, Horace J. Donnelly, decreed the issue obscene and unmailable. (Longley).
In 1957, the constitutionality of the federal obscenity statute was first argued before the United States Supreme Court. Samuel Roth had been convicted on 26 counts of “mailing obscene circulars and advertising, and an obscene book, in violation of the federal obscenity statute”. Roth's case was combined with Alberts v. California. Alberts was convicted on a misdemeanor for “selling lewd and obscene books and of composing and publishing an obscene advertisement for his products” in violation of state law. In Roth v. United States , Justice Brennan stated for the majority, “We hold that obscenity is not within the area of constitutionally protected speech or press.” The court also determined that the “Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press.” The new test was “whether the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest” (deGrazia 291-295). This judgment changed the interpretation of obscenity laws from personal judgment of a single individual such as Anthony Comstock to judgment by the community.
According to statistics kept by the Post Office Department, the period between July 1966 and January 1967 saw an average of thirty-four arrests per month made under the federal Comstock Act-down from "between sixty and seventy a month" in the years prior (Rembar 487).
From 1971 to 1978 alone, the U.S. Supreme Court heard seven more cases involving "obscene matter" in the mail-including (Postmaster General) Blount v. Rizzi, United States v. Reidel, Miller v. California, Hamling v. United States, Marks v. United States, Smith v. United States, Pinkus v. United States.
In 1971, Congress deleted the birth control language from the Comstock Act. The Comstock Act itself has never been repealed. A modified form of the Comstock Act remains on the books today at 18 U.S. Code § 1462 It states:
Importation or transportation of obscene matters
Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier or interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934), for carriage in interstate or foreign commerce -
(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; or
(b) any obscene, lewd, lascivious, or filthy phonograph recording, electrical transcription, or other article or thing capable of producing sound; or
(c) any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving 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; or
Whoever knowingly takes or receives, from such express company or other common carrier or interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934) any matter or thing the carriage or importation of which is herein made unlawful -
Shall be fined under this title or imprisoned not more than five years, or both, for the first such offense and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.
In 1996, the Comstock Act was revived into Title V of the Telecommunications Act of 1996. Chairman of the House Henry Hyde authored the provision, known as the Communications Decency Act. Critics of the provision charged, “it [makes it] illegal for anyone to ‘depict or describe' anything ‘indecent' on any part of Net—enforced with fines of up to $200,000 and 2 years in prison. Thus Web pages, email messages, and newsgroup postings that used ‘dirty words' would be illegal. The law also made no exceptions for anything with scientific, literary, artistic, or political value. Thus, quoting certain passages from Henry Miller's Tropic of Cancer or Salinger's Catcher in the Rye would be illegal…The CDA was clear; it was explicitly worded to ban anything that any community anywhere in America might find ‘indecent'”. (27)
After it passed, Representative Pat Schroeder sent an impassioned letter to her colleagues. “When you voted on the telecommunications bill last week, did you intend to criminalize speech about abortion on the Internet?..If you voted for the telecommunications conference report last week, you voted to extend the Comstock Act to anyone who uses any interactive service to provide or receive information which directly or indirectly tells where, how, of whom, or by what means an abortion may be obtained…Furthermore, Chairman Hyde's full statement asserts that Section 1462 does criminalize commercial speech about abortion.”
The ACLU, the American Library Association and other “cyber-liberties groups” filed in a lawsuit maintaining the Communications Decency Act violated First Amendment rights. In Reno v. ACLU , plaintiff Kiyoshi Kuromiya “testified that his website, the Critical Path AIDS Project, provides ‘lifesaving' information on safer sex practices -- some of it necessary sexually explicit -- aimed at reaching teens around the world'. When questioned by Judge Stewart Dalzell, how individuals such as Kuromiya would be treated, “Justice Department lawyer Jason Baron responded that if Mr. Kuromiya didn't want to comply, ‘he can take the consequences.'”
On June 2, 1997, the U.S. Supreme Court unanimously ruled the Communications Decency Act was unconstitutional.
The battle rages on. On March 2, 2004 the American Civil Liberties Union returned to the Supreme Court to argue Ashcroft v. ACLU. The ACLU, joined by a number of other plaintiffs including Powell's bookstore, Salon.com, ArtNet, and OBGYN.NET are challenging the Child Online Protection Act, another Internet censorship law. In their complaint filed with the court, the plaintiffs maintain, "Under the Act, any speech that some community might consider to be 'harmful to minors' -- including Ken Starr's report on the Clinton-Lewinsky scandal or a Mapplethorpe photograph -- is potentially criminal if displayed for free on the World Wide Web (the "Web") and accessible by minors...The Act's constitutional flaws are identical to the flaws that led the Supreme Court to strike down the Communications Decency Act (the "CDA"), in Reno v. American Civil Liberties Union , 521 U.S. __, 117 S. Ct. 2329 (1997). The effect of the Act, like the CDA, is to restrict adults from communicating and receiving expression that is clearly protected by the Constitution." (28)
Meanwhile, Dani McIntosh and the Washingtonville Art Society will continue challenging the Post Office. "The U.S. Postal Service's domestic mail manual says postal officials are not permitted to decide what's inappropriate for mailing, USPS spokesman Tony Musso said[...] A post office can only take action when a customer complains about receiving unsolicited mail containing graphic material."
The postcard for next year's exhibit will feature a nude painting.
De Grazia, Edward. Censorship Landmarks . New York and London: R.R. Bowker Company, 1969.
Dennett, Mary Ware. Who's Obscene? New York: The Vanguard Press, 1930.
Hull, Mary E. Censorship in America: A Reference Handbook . Santa Barbara, California: ABC-CLIO, 1999.
Kennedy, David M. Over Here: The First World War and American Society . New York: Oxford University Press, 1982.
LeWarne, Charles Pierce. Utopias on Puget Sound 1885-1915 . Seattle and London: University Press, 1975.
Marchionni, Doreen. “Home May Try Again to Acquire Stamp of Approval from Post Office”. Tacoma News Tribune 21 Mar. 1990: E2
Morton, James F., Jr. “Discontent Held Up!”. Discontent 18 Dec. 1901
The National Council on Freedom from Censorship. The Post Office Censor . New York City: 1932?
Rembar, Charles. The End of Obscenity; The Trials of Lady Chatterley, Tropic of Cancer, and Fanny Hill . New York: Random House, 1968.
Unknown. Schroeder to Introduce Legislation to Delete Language in the Telecommunications Act Criminalizing Abortion-Related Speech on the Internet . 6 Feb. 1996. Electronic Frontier Foundation. 8 Dec 2003
Schroeder, Patricia. Comstock Act Still on the Books . 24 Sep. 1996. Gifts of Speech at Sweet Briar College. 8 Dec. 2003 < http://gos.sbc.edu/s/schroeder.html >