Enacted in 1873, The Comstock Act, named for Anthony Comstock, sought to limit the use of sexual speech in written materials in the United States. The Comstock Act was an amendment to the Post Office Act of 1872, which formally incorporated the United States Postal Service into the United States Cabinet. It also built upon the Tariff Act of 1857 regarding the regulation of imported and mailed materials.
The Comstock Act was primarily concerned with the distribution of materials that were deemed obscene, lewd or lascivious. It specifically targeted the mailing of such materials with a particular emphasis on the distribution of French postcards, images of naked women, often prostitutes, and the distribution of materials regarding sexual practice including information regarding early forms of contraception.
Anyone found guilty of violating the Comstock Act could face up to 5 years of hard labor in a state penitentiary or a fine of up to $2000.
Because the Comstock Law gave enforcers such as Anthony Comstock the ability to censor the mail at any time, personal mail, magazines and pamphlets regarding sexual practice were all at risk of being confiscated, destroyed, and the creators could find themselves facing jail time.
The Bill read:
Be it enacted… That whoever…shall sell…or shall offer to sell, or to lend, or to give away, or in any manner to exhibit, or shall otherwise publish… or shall have in his possession…an 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 of an immoral nature, or any drug or medicine, or any article whatever, for the prevention of conception… On conviction thereof in any court of the United States…he shall be imprisoned at hard labor in the penitentiary for not less than six months nor more than five years for each offense, or fined not less than one hundred dollars nor more than two thousand dollars, with costs of court.
The biggest cause of conflict regarding the Comstock Act was the subjective definition of obscenity. The United States adopted the Hicklin test or Hicklin standard as a means of judging obscenity. The Hicklin test was developed in England and judged obscene works as those that sought to corrupt the minds of those open to immoral influences regardless of artistic merits. In theory, it was possible for an author, performer or non-fiction writer to have innocent intentions when creating a work, but if it was deemed that they intended to deprive the recipient of their work, they would be guilty under the basis of the Hicklin test.
This convoluted and subjective standard remained in effect until 1957 when it was replaced by another test for judging obscenity, the Roth test.