Comstock Act of 1873


The Comstock Act of 1873 is a series of current provisions in federal law that generally criminalize the involvement of the United States Postal Service, its officers, or a common carrier in conveying obscene matter, 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. Amended multiple times since initial enactment, most recently in 1996, the Act is nonetheless often associated with U.S. Postal Inspector and anti-vice activist Anthony Comstock.
The law was applied broadly for much of its history, before the scope of enforcement narrowed after various court rulings, and modern enforcement is primarily focused on prosecuting child pornography.

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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 . 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:
  1. An obscene article.
  2. An article ''designed, adapted, or intended for obscene or abortion-causing purposes.
  3. An article advertised or otherwise described in a manner calculated to lead to its application for obscene or abortion-causing purposes.
  4. Mail matter giving information as to who, what, where, or how an article may be obtained or made.
  5. 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.
  6. Mail matter advertising or representing as to whether or by what means an article may be applied for obscene or abortion-causing purposes.
  7. 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 in United States v. Goldstein.
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. 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 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 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:
  1. An obscene article.
  2. An article designed, adapted, or intended for obscene or abortion-causing purposes.
  3. Mail matter giving information as to who, what, where, or how an article 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 , 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. 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:
  1. Obscene articles.
  2. Articles advocating or urging treason, insurrection, or forcible resistance against the United States.
  3. Mail matter containing true threats of physical harm to or taking the life of any person in the United States.
  4. 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 at . It presently provides that:
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 in subsection, 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, 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:
  1. The average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest;
  2. the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and
  3. 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."