This Day in Legal History (Anthony Comstock, Anti-Vice Crusader, Born)

March 7, 1844—Anthony Comstock, who mercilessly pursued litigation and legislation against obscenity in the Victorian Era, was born in New Canaan, Conn.

Over four decades, Comstock used the organization he founded, the New York Society for the Suppression of Vice, to range across and rage against the cultural landscape. Starting with halting the promotion and sale of birth control and abortifacients, he ended up broadening his reach to plays, art and even medical texts, leading one of those he pursued, playwright George Bernard Shaw, to come up with a neologism for the anti-vice crusader. 

It wasn’t a compliment. “Comstockery is the world’s standing joke at the expense of the United States,” he complained to a New York Times reporter in September 1905, after Comstock had attempt to censor the Anglo-Irishman’s 1892 play about prostitution, Mrs. Warren’s Profession.

In the post-Civil War Era, white Anglo-Saxon Protestants, watching in dismay at the Northern cities they once controlled swelled to accommodate immigrant tide, countered with measures to deal with these ills. Some were benign attempts at uplift, such as public libraries. Others were sometimes questionable attempts to sanitize elections and governance through referenda, initiatives, and recall attempts. Others were more frankly hostile, like post-Famine deportations of Irish indigents in 11 Eastern states and the Chinese Exclusion Act of 1882. Still others, though ostensibly applied across the board, were purity crusades that stigmatized marginalized racial and ethnic groups disproportionately, such as Comstock’s anti-vice campaigns.

Once he came to New York City in 1866, Comstock could not get over what he encountered: prostitution, drug addiction, and bookstores that all kinds of pornography.  

By 1873, Comstock began in earnest his counteroffensive by persuading Congress to pass federal legislation making illegal the transportation and delivery of “obscene, lewd, or lascivious” materials. Due to his license as a “special agent” and inspector for both the Society and the United States Postal Service, that measure became so associated with him that it became known simply as the Comstock Act.

 

To his own version of the purity campaign, Comstock brought the energy of the demented to his quest—by his own admissions, destroying 160 tons of obscene materials; trying to ban adventure books and romance novels; helping to put out of commission the Louisiana lottery, the only legal lottery in the country at the time; and writing articles and lecturing college students to warn them against the licentious life he foresaw for them. 

I’m not sure how anyone who calls himself a Christian could brag about causing a suicide, but Comstock did—and not just one person, but 16, including abortionist Ann Lohman.

 One of the few modern defenses I’ve read of Comstock was Helen Andrews’ 2008 article in The Hedgehog Review. Although I disagree strongly with her sympathy for Comstock, I found fascinating her observation that the elite “who bankrolled Comstock were not about to invite him to dinner at their homes or to their private clubs.”

Indeed, another author, Nicola Beisel in her book Imperiled Innocents, has noted that the major contributors to his campaign were members of the upper crust who feared that their children, corrupted by the forces that Comstock inveighed against, might lose the social standing their parents had labored so hard to obtain.

Comstock’s last major target was Margaret Sanger for promoting her views on birth control. But midway through the campaign to make her cease and desist, Comstock died, leaving Sanger with another five decades to fulfill her destiny as a pioneer birth-control advocate.

Even after Comstock’s death in 1915, the Society for the Suppression of Vice continued to exist, albeit with steadily diminishing impact, under his successor, John S. Sumner, who pursued his own campaigns against James Joyce’s Ulysses, James Branch Cabell’s Jurgen and D.H. Lawrence's Lady Chatterley's Lover.  

As late as the 1930s, the Society’s reports identified the ethnicity of those it tagged as miscreants, as if this were relevant to the offenses. (It even claimed, according to its own statistics, that "less than one-third of [obscenity] offenders were of real American stock.")

 

Quote of the Day (Judge John Woolsey, on James Joyce's “Ulysses”)

“I hold that Ulysses is a sincere and honest book, and I think that the criticisms of it are entirely disposed by its rationale . . . The words which are criticized as dirty are old Saxon words known to almost all men, and, I venture, to many women, and are such words as would be naturally and habitually used, I believe, by the types of folk whose life, physical and mental, (James) Joyce is seeking to describe. In respect of the recurrent emergence of the theme of sex in the minds of his characters, it must always be remembered that his locale was Celtic and his season Spring.”—Judge John Woolsey (1877-1945), United States v. One Book Called Ulysses, delivered Dec. 6, 1933

For all his sensual appetites, James Joyce claimed to abhor pornography. Yet ironically, his masterpiece Ulysses became the storm center of an obscenity case that would go the longest to establish the right of the author to deal with previously taboo subjects frankly and seriously.

The case, argued before Woolsey of the United States District Court, Southern District of New York, at the headquarters of the City Bar Association, revolved around a sometimes maddening, yet always provocative, work—one damned as obscure and dirty by detractors and hailed as a landmark of modern fiction by many critics. 

The novel forced Woolsey, a 56-year-old expert in admiralty law with a taste for good literature, to note  on November 25 that reading the novel the last summer “almost drove me frantic,” and that even now he needed “a little more time to make up my mind."

An official complaint in September 1920 from John S. Sumner of the New York Society for the Suppression of Vice abruptly ended its serialization in the American literary magazine The Little Review. 

In officially banning the finished book two years later, the United States Customs Service scathingly denounced the high claims already being pressed for the novel by its admirers: “If it could be argued that books abounding in obscenity, filth and rottenness are books of undoubted merit and literary value, then this book is a masterpiece.”

Unfortunately, over the last several decades in the United States, many books of “undoubted merit and literary value” had, in fact, been declared “abounding in obscenity, filth and rottenness” by the authorities, including Leo Tolstoy’s Kreutzer Sonata, James Branch Cabell’s Jurgen, and Theodore Dreiser’s An American Tragedy. In the case of the last book, a Boston jury had been instructed by a novel to consider only 24 pages in isolation from the rest of the mammoth work.

Under the circumstances, it became the height of literary chic to smuggle the book into the country in light-blue paper jackets, one copy of which could fetch hundreds of dollars. So quickly were copies snatched up that T.S. Eliot could not find enough to go around when he assigned it for a Harvard course on modern literature that he taught in the 1920s. 

In all, about 30,000 copies of the novel were sold in France, its place of original publication, up to 1933, mostly to U.S. tourists.

The court case that resulted in the formal publication of Ulysses in America was the work of a proverbial riverboat gambler. Brash and brilliant publisher Bennett Cerf had offered Joyce $1,500 for the American rights to the book and promised to fight the ban. 

But, if his fledgling business venture simply went ahead and published, it would be out all the costs of typesetting, printing, and shipping in bulk if a court ruled that the book was obscene. By contrast, by simply having an imported copy seized at customs, Cerf only forfeited the cost of the copy, an advance paid to Joyce, and legal fees.

The seizure at customs almost didn’t come off. 

On May 8, 1933, the copy that Cerf had intentionally intended to be captured—including copies of critical reviews that he could introduce as physical evidence—came back to America on the ocean liner Aquitania. This being one of the hottest days in the history of the city, customs inspectors were hustling passengers off. Even the insistence on the part of one of Cerf’s agents that his suitcase be opened must have struck them as mighty strange.

Cerf’s attorney, Morris Ernst, had timed the case so that it would be heard by Woolsey, who two years earlier had found no obscenity in two bestselling sex manuals by the English author Marie Stopes (whom I examined in a post several weeks ago). 

Woolsey also allowed outside evidence to be introduced, which Ernst used to advantage, marshaling the opinions of hundreds of educators, writers, clergymen, businessmen, and librarians.

Woolsey’s eventual ruling, announced the same week as the repeal of Prohibition, was so sophisticated, magisterial and eloquent that it sent the forces of American Puritanism reeling on a second front. He created an important precedent by steering away from the old concept of the impact on Impressionable Youth and to “what the French would call l’hommeyon sensual—who plays, in this branch of legal inquiry…the same role…as does the ‘reasonable man man’ in the law of torts.”

Acknowledging the book’s famous difficulty, Woolsey found it “brilliant and dull, unintelligible and obscure by turns”—but nowhere did he detect “the leer of the sensualist.” For that reason, he ruled that Ulysses was not pornographic and could be admitted in the U.S.