Today’s episode is part of our sex series 2.0 and a continuation of one of our earliest episodes, Selling Sex: 19th Century New York City Prostitution and Brothels. In that episode, Sarah and I discussed the vibrant sexual culture in New York City during the Gilded Age, roughly 1870 to 1890. Today we’re going to do a deep dive on the most famous antagonists of that sexual culture: anti-vice crusader, Anthony Comstock.

Transcript for Anthony Comstock: Sex, Censorship, and the Power of Policing the Subjective

Averill: Comstock was an evangelical man who, through advantageous connections to wealthy and powerful men, managed to become the nation’s sole authority on obscenity. For a short window of time, Comstock’s puritanical worldview dictated how materials related to sexual expression and human anatomy would and should be censored.

Elizabeth: Comstock weasels his way into many of our episodes, showing just how much of a cultural force he was during his heyday. The period he was active spanned from 1872 to 1915, when he died. It’s interesting to point out that the rise and fall of Comstock is capped by his attempted policing and censorship of two of America’s most important and infamous women of the modern era. His rise to fame in 1873 was buoyed by his attempt to bring down Victoria Woodhull over obscenity charges for her expose of the famed and adulterous preacher, Henry Ward Beecher. Comstock died while trying to take down Margaret Sanger for promoting birth control, who fled to Europe to escape Comstock’s legal wrath. Over the course of his career, Comstock arrested thousands of people, ruined people’s lives and businesses, and caused over a dozen people to commit suicide. He also incinerated literally tons of books, pamphlets, photographs, and objects he deemed to be obscene.

Averill: So who is Anthony Comstock. How did a man who was never elected to public office, gain so much power over the American legal system? Who or what gave him the authority to be the decider of what was considered “obscene?” Let’s dig in…

I’m Elizabeth Garner Masarik

And I’m Averill Earls

And we are your historians for this episode of Dig.

We want to give a big THANK YOU to all of our patreon supporters, but especially our “Auger” and “Excavator” level patrons. Colin, Eric, Peggy, Christopher and Lauren — yall rock, and your good faith and donations help keep this podcast going. Listener, if you are not yet a patron, you can go to patreon.com/digpodcast to learn more.

Averill: Anthony Comstock is most famous for the Comstock laws, which were a series of laws that prohibited the manufacture, sale, and dissemination of “obscene” materials in America around the turn of the nineteenth century. Now Comstock himself was responsible for one law, passed in 1873 but numerous jurisdictions passed mini-Comstock laws that made various prohibitions against obscenity on the local level.

Black and white portrait of Anthony Comstock

Elizabeth: Comstock was born in New Canaan, Connecticut in 1844. He was raised as a devout Congregationalist among the ancestors of the Puritans and he takes his faith very seriously. He truly believed that the devil was all around, giving mortals temptations to sin, and if humans acted on those temptations they would go to hell. I think it’s really important to let that sink in… Comstock truly believed that he was saving people’s souls by preventing them from seeing obscene things. He was fully committed to the idea that the exposure to titillating images or books, or the mere incitement of lust, would lead people down the path straight to hell. He truly believed he was saving souls.

Averill: Comstock served in the infantry during the Civil War and began his purity crusade during his time while stationed in Florida. He participated in the Christian Commission, an evangelical organization created by the Young Men’s Christian Association (YMCA) who passed out bibles, sent ministers to war encampments, hosted prayer meetings, and attempted to use the power of the government and the Union army to keep soldiers moral. According to Comstock’s diaries, he didn’t get along with his fellow soldiers. He wrote about the barracks as being dens of “cursing and blasphemy, ” writing in 1864, “seems to be a feeling of hatred by some of the boys, constantly falsifying, persecuting, and trying to do me harm. Can I sacrifice Principle and conscience for Praise of Man? Never.” 

Elizabeth: So dramatic. But also telling. He is not a man who compromises, to fit in or go along with the status quo. He is very much a black and white kind of person and he makes that known. Understandably, he isn’t embraced by the other men in his unit.

But that gives you a sense of his self righteousness, and that seems to be pretty much his M.O. throughout the rest of his life. Historian Amy Werbel’s indepth look into Comstock and his impact on American censorship in her book Lust on Trial, paints Comstock as a real jerk. And it’s not like other books and essays about him didn’t, but reading Werbel’s deep dive into the guy was illuminating. Comstock just seems to be a person that has no middle ground, there are no shades of grey, just black and white with him. He doesn’t have a very curious mind and just seems like a pompous asshole. I dunno- I’ve known people like that. Like the guy in the room who is just loud and talking and talking and doesn’t absorb anything other that what he’s already got in his head? That’s the kind of guy Comstock strikes me as being.

Elizabeth: After the Civil War, like many young men, Comstock made his way to New York City to seek out his fortune. Now, if you’ve listed to our Sex in New York City episode, you’ll know that Gilded Age New York City was seeeexy! It was literally the hub of America’s commercialized sex industry. Prostitution was rampant and easily visible and accessible. A lot of pornographic and erotic materials were produced in New York City and circulated freely through the city and mailed out to the rest of the country. Abortifacients and birth control were advertised in the papers and easily accessible if you knew where to go. Sex was more visible in certain sections of the city like in working-class areas and around the Bowery and places of entertainment, but erotic material traveled through all social classes. There were vast differences between what was seen publicly and what circulated privately and Werbel’s book has a ton of images of the types of erotica that was viewed in people’s private homes and clubs. So just some examples, there were these transparent playing cards and if you held it up to the light you would see an image of some dirty business. So the one she has in the book is of a man and a woman in the 69 position. Or, people would have cufflinks that had an image of a can, and a eyeball, and a screw, and the letter U. Can-I-screw-you? So a lot of these things were kind of jokes right? Not so different than going into a store today for like bachelorette party stuff and finding a bunch of penis-shaped drinking straws.

Averill: In addition to the novelty type items, there was also a ton of erotic literature and pamphlets and the like. And as you can imagine, there were lots and lots of photographs of pornographic and titillating images. So think about how we use cameras now and how quickly camera technology has changed human interactions. You know, 15 years ago selfies weren’t even a thing. Or, think about how 8mm cameras were immediately used for porn and in peoples bedrooms and now things facetime and those types of apps make videoing sexy time super easy. So… people like to capture naked bodies on camera, and when photography got popular, nudie pictures got popular too.

Elizabeth: So here comes Anthony Comstock, to this literal city (of what he considered) sin, and he’s just shocked. And so he becomes a kind of vigilante and begins to start busting people- like book publishers and distributors of erotic photographs- on his own. He was working as a dry goods salesman during the day but in his free time he – I guess- imagines himself as this kind of Christian super hero that’s going out and busting these purveyors of smut. So, he’s like grabbing boys who are selling nudie pictures on street corners, or people selling erotic books, and he’s bringing them to the police station, or bringing the police to their places of business. But he’s really not getting much traction at all and he’s pretty disgusted with the lack of help he’s getting from the police. The police are either just letting the perpetrator go or even taking a cut of the profits.

Averill: Comstock would also go around and try to close saloons that were operation on Sunday in violation of the law, and again the police were completely uninterested in prosecuting those cases. He’s very frustrated.

Elizabeth: It’s important to understand that there were some obscenity laws already on the books before Comstock’s reign as a censorship crusader. There were laws passed in 1842 and in 1865 and a fairly comprehensive one in New York in 1868, but there was really no mechanism for enforcement. Police and judges just weren’t very interested in prosecuting what people did in private, at least when it came to erotic literature and photos, or what they purchased through the mail. 

Averill: On one of these frustrating trips to the police station, an officer tells Comstock that the men up at the YMCA branch have also been trying to do something about this spread and dissemination of dirty literature and photographs. The men at the YMCA had been holding meetings about what they called “obscene literature,” and had formed a special committee in 1868 where they are researching and trying to find ways to clean up the areas around their branches. And I guess we should explain what the YMCA was at that point in time. It was a Christian organization designed to help young men new to the urban city, have a place to congregate that was Christian and moral. So they were these places designed to kind of help young you know, maybe their first time away from home or whatever, stay good and moral and God fearing in the evil city. So these YMCA guys are, you know, trying to get the storefront that’s next door to a YMCA branch to stop putting dirty books and pictures in their front window.

Elizabeth: But the thing about these YMCA guys was that they didn’t have a person who could go into these lairs of pornographers, these publishers, in lower Manhattan. These men were way too high-class to do that; they were attorneys and businessmen with reputations to protect. They needed someone who could do the dirty work of busting these pornographers.

A sepia photograph from above showing a large hall with men seated at banquet tables at a YMCA banquet

Averill: Lucky for these men, Comstock writes a letter to the YMCA in 1872 inquiring about this anti-vice work they are doing and within a week, Morris Jessup who was the leader of this special committee, shows up at the dry good store and hires Comstock to work full time as a vice fighter to the YMCA. They paid him about $3,000 a year. That’s roughly about $60,000 in today’s money.

Elizabeth: So Comstock continues his vigilante work but now as a full-time employee of the YMCA special committee. He starts to account for all of the materials that he is seeing on the streets and he starts honing his skills as an investigator. He’ll do things like follow the boys who are selling pictures on the street to see where they are getting their supply. He’s looking for who’s producing it and he really develops this kind of underground knowledge of where things are being produced, whose distributing it.

Averill: Comstock takes all of this information and he writes it all down and brings it back to the YMCA. And the YMCA prints up these special reports outlining all of the horrible things that Comstock has unearthed out in the city. These reports and pretty scandalous, and they are even printed with the instructions to burn them after reading them. They used these reports to solicit donations from wealthy New Yorkers.

Elizabeth: Also, the special committee would have these events, kind of a show-and-tell of what Comstock was up to. And men only, no ladies, no wives or anything, could come and read these reports and Comstock would show them examples of all of the materials he was collecting. So he’d have a display of photographs, and books, and these joke sexual objects, and oh the horrors – “rubber goods.” These were dildos. Comstock confiscated lots and lots of dildos.

Averill: Just as Comstock starts working with the special committee, our favorite heroine Victoria Woodhull is suffering a bit of a PR nightmare. We’ve got a whole episode on Woodhull, so go check that episode out for her bonkers life story. In regards to our story today however, just as Comstock is making his way to becoming the most powerful vice crusader in New York, Woodhull is becoming one of the most infamous. Woodhull’s increasing radicalism is landing her in some hot water. In 1871 she gave a speech in New York City in which she argued that women had just as much right to happiness and choice in marriage as men did. In 1871, Woodhull summed up her thoughts about free love thus: “Yes, I am a Free Lover. I have an inalienable, constitutional and natural right to love whom I may, to love as long or as short a period as I can; to change that love every day if I please, and with that right, neither you nor any law you can frame have any right to interfere.” That’s some radical stuff, to say that a woman shouldn’t be bound by marriage to one man and essentially be his to do with as he pleases. Also, Woodhull was really good at pointing out hypocrisy and used her newspaper, the Woodhull and Clafin’s Weekly to call out one of the biggest hypocrites around. She went after Henry Ward Beecher, who was a famous preacher. Woodhull accused him of adultery and even that he fathered a love child. The thing was, most signs point to that yes, her accusations were true – but Beecher was so popular and inspirational to many people that the news backfired on Woodhull. Just a few days after the story published, Comstock showed up at the newspaper office, police in tow, and arrested Woodhull and others for printing such an obscene story. She bailed herself out, and was arrested again a few months later. And of course this is all over the newspapers and Comstock is making a name for himself as a purity crusader.

Elizabeth: Meanwhile Comstock is working with the YMCA, they’re raising money and using this money pay Comstock’s salary. Soon they send him to Washington DC in late 1872 to lobby for a federal statute to amend the U.S. postal code to make it illegal to transport any materials through the U.S. mail that are deemed to be obscene. It’s called the “Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use,” which becomes known as the Comstock Act. This law is trying to get at is this huge trade of “obscene” material that is coming out of New York City and spreading to the rest of the country through the U.S. mail. To the point where they even wound up in rural places like New Canaan, Connecticut where Comstock was raised in this devout Congregationalist family. And he writes in his diary that even in his little farm town, there were pornographic materials that were circulating around and he saw some of these materials and they were horrible and they led boys to ruin. He felt that if a boy saw this material just once, that it would be, like seared in his head forever and the next thing you know, you are drinking and gambling and seeing prostitutes and then you’re dead in a ditch somewhere. All because you saw a boob or two.

Averill: The Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use passes, with no debate actually, and it vastly expands the powers to police obscenity. It also includes for the first time birth control and abortifacients, which had not been specifically spelled out in law before this period of time. Now, what does birth control have to do with pornography? In Comstock’s mind, birth control and abortifacients allow you to not suffer the consequences of your sins. So it all kind of goes together, the pornography puts the evil in your head. Then, full of lust you are going to go out and act with your body. And you’re going to do that because you know that you have birth control so you’re not going to suffer the consequences of sexually transmitted disease or pregnancy. That’s the reasoning. Comstock, and many others, believed that birth control encouraged people to have immoral, sexual relationships, therefore it had to be banned. Because otherwise, people would “get away with it” so to speak.

Elizabeth: Aside– I mean if you think about it, that’s not any different than what right wing conservatives argue now about say, free condoms in schools or even sex education. They argue that if it’s there or if the knowledge is known, then it encourages people to engage in sex, when they otherwise supposedly wouldn’t do it.

Let me read a portion of this act, buckle up:

“Every obscene, lewd, or lascivious book, pamphlet, picture, paper, writing, print or other publication of an indecent character, and every article or thing designed or intended for the prevention of conception or procuring of abortion, and every article or thing intended or adapted for any indecent or immoral use, and every written or printed card, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or of whom, or by what means, any of the hereinbefore mentioned matters, articles, or things may be obtained or made, and every letter upon the envelope of which, or postal card upon which, indecent, lewd, obscene, or lascivious delineations, epithets, terms, or language may be written or printed, are hereby declared to be non-mailable matter, and shall not be conveyed in the mails, nor delivered from any post-office, nor by any letter-carrier.”

A sepia portrait of Victoria Woodhull

Averill: Meanwhile, Victoria Woodhull is still fighting these obscenity charges in New York. But, she’s found not guilty in 1873 on a technicality. At the time of her arrest in 1872, the Comstock Act had not been passed yet. The older obscenity law she was being tried under did not include obscene materials in printed materials. Of course, you better be sure that the 1873 Comstock Act did include printed materials. As you’ve just heard, it included everything but the kitchen sink!

Elizabeth: At the same time, the Post Office hires Comstock to be an agent for them. Typically, postal agents would do things like investigate stagecoach robberies, and things like that. So Comstock’s appointment is a little different in that he’s actually concerned with what’s inside of people’s mail. Now, not only is he working as the obscenity police for the YMCA, he’s also got federal authority as an inspector for the U.S. Postal service. In a short matter of time, his power has greatly expanded and he’s become a notable figure because of this high profile case with Victoria Woodhull.

Averill: In 1874, the anti-vice special committee left the YMCA and incorporated in the state of New York as the New York Society of the Suppression of Vice or NYSSV. What’s pretty wild about this incorporation is that New York State gives this private, evangelical, obscenity crusading organization real state authority. The incorporation language says that the New York police must assist the NYSSV in carrying out its mission. Think about that for a second. This is a private organization that is granted police powers. This language in this incorporation forces the police to at least make arrests at the direction of Comstock, who is the secretary for the NYSSV.

Elizabeth: Almost overnight, Comstock gains both federal authority and state authority, all while never being elected to any kind of public office. Soon after the federal Comstock Act passed, all of these mini-Comstock laws start being passed in the states. They are modeled on the federal law and the New York law. Comstock spends the first decades of his career traveling all over going to different state legislatures lobbying for obscenity laws, these mini-Comstock laws. When he went, he would bring along his suitcase of “horrors” filled with examples of all the obscene materials that he conficasted. He would show lawmakers all of these materials, as a sort of scare tactic. Basically, he displayed the types of pornography and erotica that people were viewing and using inside their homes, with the understanding that it must be banned so that more people would not become corrupted by these materials. Some of these mini-Comstock laws made it a crime not only to sell information about contraceptives, but to even possess it or share knowledge about it orally. Many of those laws stayed on the books well into the latter half of the twentieth century. So for example, Griswold v Connecticut, which overturned Connecticut’s law against birth control among married people, was actually a ruling that overturned one of these mini-Comstock laws.

Averill: Werbel’s research focuses a lot on Comstocks arrest blotters. This is where he chronicled all of the arrests he made, the materials he confiscated, his thoughts about the case, the outcome, etc. For a lot of Comstock’s early cases, courts and police were not really interested in prosecuting these types of moral judgement crimes. They tended to view Comstock as an overzealous busy body. Many of his early cases, so about 1873 to 1878, he writes lengthy notes in his arrest records about how outraged he is that these people who are obviously producing pornography, or selling and shipping pornography, are just let off the hook over and over again. This really persits for about the first five years of his career, and then he starts to get some traction in the late 1870s.

Elizabeth: Concurrently, there is this freethinker – Free Love movement going on. These are a small but thoughtful, and vocal group of thinkers who are really questioning the institution of marriage and really women’s subservience to men and husbands. Victoria Woodhull is one of these people. They are advocating that men and women have equal rights to sexual pleasure and be able to choose the partners they love. This meant being able to dissolve unions if both partners weren’t happy, allowing people to create new partnerships with others of their choosing. Free Love added new dimension of romantic love that emphasized feelings and the separation of sexual intercourse from conception. Some even refer to marriage as a form of sexual slavery or prostitution. Now, this is just all too much for Comstock – this is blasphemy at its worst. His worldview is of white patriarchy, what he considered the “natural” order. So anything that deviated from that “natural” order was immoral, would lead people to hell, and was therefore subject to prosecution.

Averill: These free thinkers are writing their ideas down in books and pamphlets, which they print and disseminate. In 1878, Comstock is able to get a conviction against D.M. Bennet who is a very well know free thinker, on account of one of these Free Love pamphlets. The case is tried in New York under New York law and winds its way through the court system until it is upheld in the New York state court of appeals.

Elizabeth: One of the questions that’s arising in the courts from Comstock’s uptick in arrests and policing is this question of “obscene.” How does one define “obscene.” Who gets to decide what is and is not “obscene.” And in this case against D.M. Bennet, the judge uses an English ruling as his guide, called the Hicklin test.This is a very sweeping test of obscenity that basically says that anything that has a tendency to arouse improper passions in people who would be subject to those passions, is obscene. This gets rid of any kind of context or intent or discussion about the modes of production or the uses of the so called obscene materials. Essentially, it doesn’t matter who or what something is made for, if it can produce “improper passions” in people who would be subject to those passions, it is obscene. So within this Hicklin test, all context is lost. There are no questions such as, is this material for science? For physician training? For art? None of that is pertinent to this specific language of the Hicklin test. Everything is at danger of being labeled obscene.

Averill: When this ruling is upheld in NY state court appeals, Comstock has it printed up as a little brochure. He carries copies of it around with him on the streets of New York and when he sees something that he feels is obscene or immoral, he’ll go into the shop and tell them to take it down, or he’ll confiscate it. He’d hand them one of these brochures with this Hicklin test on it, and say here is the definition of obscene, and you are in violation of it. So for example, he passed a barber shop that had a picture of a ballet dancer on the wall, wearing tights and a short tutu. And Comstock barrels in and gives the barber this sheet of paper and demands he take the picture off the wall, because it is obscene. The barber protests of course but when Comstock went back a few days later, the barber had taken it down. Obviously it just wasn’t worth the court battle, you know?

Elizabeth: Comstock is delivering these pamplets all over the city and saying if you don’t take that out of your window or if you don’t stop selling that, here’s the test of obscenity and I’m going to be back the next day to arrest you. And that’s when, with the Hicklin test, he does start to get lots of convictions. In many cases these convictions just amount to the perpetrator having all of their stock confiscated and destroyed. Comstock burned a lot of materials over the years. People might get a fine, and a few would get prison sentences. As we get into the 1880s he’s definitely much more successful in the courts.

A painting depicting a pale young woman with reddish hair sitting, nude, at the edge of a blue wave

Averill: With more success, Comstock gets more bold and starts going after artwork with nude figures. This is the Gilded Age remember, this is the period of time when these robber barons start ammasing their great fortunes. Wealthy people start taking these European trips and they are bringing home French paintings and statues, many of them depicting nudes. You begin to see these nudes in people’s galleries and homes. This is also the period where many of the American museums are founded, so you begin seeing nudes in those too. These paintings are very popular in Paris so you show your cultivation and prestige by having these kinds of paintings. That’s where we start to get a huge class distinction as well.

Elizabeth: For the most part, Comstock is never going to go after expensive, original paintings among the well-to-do because those are the people who back him, and pay him. Reproductions are fair game however, because they are bastardized copies of originals. Now this wasn’t really Comstock’s view, he viewed it all, original or no, as obscene. But the political realities made it hard for him to crack down on originals. Many of this backers were very wealthy men and they didn’t want Comstock going after the upper echelons of society.

Averill: He absolutely did go into saloons and bars that had reproductions of this artwork on their walls, and confiscate everything. Sometimes, he was even able to grab the real ones. But even then, it also depended on class status. For example, Steve Brodie was a working-class guy from lower Manhattan who gained fame because he supposedly jumped off the Brooklyn Bridge and survived. Newspapers went crazy over the story and Brodie capitalized on his fame. He traveled and did swimming and jumping exhibits at vaudeville shows and such. As Brodie increased his fame and wealth, he began collecting art. He also opened two saloons on Bowery. He and his wife would travel to Paris and bring back paintings of nudes to hang in his saloons. Comstock raided Brodie’s saloons in 1891 and took “24 framed paintings, 10 “obscene” cards, and one album containing 41 pictures.[1] Brodie told a reporter that he wanted his pictures back, and he saw straight through the fact that saloons with nudes on Madison square weren’t being raided, just places along Bowery. Comstock raided Brodie’s saloons again in 1895 and seized 70 pictures off the walls. Brodie ended up spending sixty days in prison for that one.

Elizabeth: This also gives us a bit of insight into Comstock’s personal life. Nineteenth century socializing is really a homosocial event. Women spend most of their time with other women, and men spend most of their time with men. So Comstock is going into all of these places where men normally socialized, like saloons, and busting them up. It doesn’t exactly endear him to a lot of men. Mens socializing revolved around the sex segregated meeting spots like clubs, saloons, barber shops – and no one really wanted him around. Most of the things that men engaged in during this time were things that Comstock was prosecuting like drinking, gambling, and hanging out around pictures and statues of naked women. He’s taking away the artwork in the saloon, he’s taking away the gambling, so he’s really not welcome around a lot of non-evangelical men during the time. He tried to join the Masons and other mens clubs and was blackballed from joining them. He was married but his marriage doesn’t seem to be a very warm one. He seems to really alienate most people. 

Averill: Comstock and the laws named for him had a big impact on the legal profession. Prior to Comstock, defense attorneys had not been used to defending clients in obscenity cases but once there start being hundreds of them, they begin to develop some sophisticated tactics. The first organization of defense attorneys to focus on the defense of Comstock cases, the National Defense Association, is formed in 1878. These are attorneys who support free thinking, support science over religion, they are very much focused on improving the rule of law in the United States. They really start to build early arguments regarding the defense against obscenity charges. They also developed some legal theories about entrapment. Comstock would see an advertisement in the newspaper for say, a pamplette about what to expect on your wedding night, and he would send for this pamphlet using a fake name. Then, he would wait at the post office and watch to see who was collecting the mail for the address he’s just written to. Then, he would follow that person back to the business or whatever, and arrest everybody. These lawyers are starting to push back as say, why should my client be suffering when Comstock also broke the law by asking for this material to be mailed to him?

Elizabeth: Over a period of time defense attorneys are able to insist on expertise in the judgment of obscenity. Before that, Comstock would show up in court, often after the offending material had already been incinerated, and he would testify that there were filthy materials and juries would take his word for it. Comstock believed he should be able to go to court, tell the court what he found obscene. He won’t show it to you because it’s obscene, so you’ll just have to take his word for it. His argument is that seeing this material would be detrimental to the juror’s souls. He really does believe that if they see these materials, they will begin down a path leading straight to hell. That is really his argument and since, early on, there’s not really a legal precedent for this sort of things, judges and juries just kind of accept it. That doesn’t last too long however, as lawyers, like the National Defense Association, start pushing back and really questioning who gets to decide what is obscene. They are asking, what kind of credentials do you need to have to judge something obscene?. If it’s art, shouldn’t you be an artist or study art to be able to judge if its worthy of being called art versus immoral smut?

Averill: Attorneys keep bringing expert witnesses to trial, who in many cases aren’t even allowed to testify. Or in some cases, in the 1870s and 1880s a judge might let the expert witness testify, but the jury would be instructed not to consider the expert witness when making their judgements. However, defense attorneys just keep pushing the fact that Comstock doesn’t know anything about art. He also starts getting mocked in the press. Artists caricature him mercilessly and lampoon him in the papers and it just gets worse and worse throughout his career. Over time he’s really seen as a busybody that is doesn’t know anything. This eventually leads judges to start allowing more and more expert testimony and that testimony is bringing up issues like intention and context and looking at the entire work of art and thinking about it in the context of other works of art or literature.

Elizabeth: Here’s one of just a ton of examples. In 1884, Comstock dragged one of his old nemesis, Charles Conroy, to court. Comstock had arrested Conroy for selling pornographic pictures numerous times, and one time Conroy even stabbed Comstock in the face, all the way down to the bone that left a scar on Comstock’s face for the rest of his life. Conroy served two years in prison for that, by the way. This time, Comstock arrested Conroy for selling some pictures on the street but this time, lawyers from the National Defense Association were working on behalf of Conroy as a type of test case. The photo in question was of actress Annie Sutherland. The actual photograph does not exist anymore but one of Conroy’s attorneys described it. “Miss Sutherland was represented sitting on a rock with the ocean behind her. Her position was a natural and not ungraceful one, and her leaning slightly forward heightened the look of earnestness which appeared in her exceptionally pretty face. The figure was entirely clothed except the arms which were bare, the bust even was not exposed.” And we have a fairly good idea of what this picture looked like, as it was very common for popular actresses of the time to pose in these types of photographs. Many might be tightlaced in a corseted bodice but practically covered head to toe with fabric. The ensemble was often form fitting. The clothing in the picture is described as “the usual costume of the ballet with the short skirt surrounded by a border of fringe. In this case the fringe was made of a chenille or some heavy substance and was put on in loops so that all around the thighs and across the figure was a row or series of these loops…” First, in this trial they at least have a copy of the photograph in question. Secondly, the judge allowed testimony from professional photographers who are asserting that these types of photos of popular actresses was a common and normal practice of all professional photographers. No big deal. So Conroy’s lawyers, they are really pushing Comstock on this question of expertise. At first he says that it is indecent because “the figure of a woman divested of her proper womanly apparel and sitting in a posture that is lewd and indecent” is obscene. The lawyers push him to be more specific but they get nowhere. The trial is postponed for a week and on return and cross-examination, Comstock finally tells them what he finds indecent about the photo. It was the loops on the fringe of Sutherland’s short jacket, and the shadows it was casting looked like “private parts.” Not very convincing. The trial ended up being postponed indefinitely, but it was a blow to Comstock and his supposed expertise. However, it didn’t slow Comstock down in the least. According to Werbel, by the time Comstock dies in 1915, the court cases are much fuller in discussing the content of the work of art and allowing multiple people to weigh, and juries are seeing the confiscated evidence. By 1915, defense attorneys have really managed to convince judges that a defendant cannot be judged by his or her peers unless the peers can really evaluate what exactly they did. And without being able to see the material that judgement is really impossible.

Averill: It’s important to point out that Comstock was not alone in his quest for regulating morality. The social purity movement of the latter 19th century was a strong movement intent on the policing and control of vice. Social purists campaigned against prostitution but they also railed against things like prize fighting, intercollegiate football, the ballet, and nudity in the arts. Comstock’s campaigns reflected the prejudices of the time. So for example, prison sentences for men found to engage in homosexual acts were horrendous, practically life sentences of hard labor. Comstock had very extreme views on homosexuality. Here’s a quote from Comstock in regards to a question about lessening sodomy laws,

“Inverts (which is what he called homosexuals) are not fit to live with the rest of mankind. They ought to have branded in their foreheads the word ‘Unclean.’ Instead of the law making twenty years’ imprisonment the penalty for their crime, it ought to be imprisonment for life…They are willfully bad, and glory and gloat in their perversion. Their habit is acquired and not inborn. Why propose to have the law against them now on the statute books repealed? If this happened, there would be no way of getting at them. It would be wrong to make life more tolerable for them. Their lives ought to be made so intolerable as to drive them to abandon their vices.”[2] Now of course, not everyone had such extreme views on homosexuality as Comstock did. Historians like George Chauncey and Timothy Gilfoyle have shown that ideas about same sex desire were fluid and not as rigid, particularly in places in urban New York, as we might think. Nevertheless, Comstock’s extreme view did conform to many heterosexual, middle-class American mainstream thinking.

A black and white image depicting Madame Restell as a glowering young woman, hovering over a demon eating an infant

Elizabeth: Additionally, in 1890s Comstock starts recording how many Jews and Catholics and Irish he’s sending to prison, or fining- so nativism is playing a part in these convictions. The proportions of arrests and convictions are much higher for Jews and Catholics that they are for Protestants. Additionally, the rhetoric of the NYSSV becomes very anti-immigrant. They are lobbying for restrictions on immigration and restrictions against refugees, which reflected larger trends among many native-born white Americans. So Comstock is definitely not operating in a vacuum.

Averill: Advocates of contraception had always evoked Comstock’s wrath. In 1878 he orchestrated the arrest of Madame Restell. You might recognize Restell from our “Abortion and Birth Control Before Roe v. Wade” episode. She was an abortion provider who sold abortifacients through the mail. The infamous Madame Restell began her abortifacient business in New York during the 1830s. She was arrested for the first time in 1841 and New York papers printed her name and occupation, which gave her great publicity. By the late 1840s, Madame Restell had branches in New York, Boston, and Philadelphia. Street peddlers would sell her abortifacient pills throughout neighborhoods and they were available by mail order as well. Comstock personally rang the bell of Madame Restell’s basement office on East 52nd Street, claiming to be a married man whose wife had already given him too many children and she was sick. Restell sold him some pills and he left. The next day, Comstock returned with a police officer and had her arrested. Out on bail, the 67 year old Restell committed suicide by slitting her own throat instead of going to prison.

Elizabeth: In 1914, Margaret Sanger ran afoul of Comstock for distributing her pamphlet about birth control called Family Limitation. Fearing a prison sentence, Sanger fled to Britain. Instead, Comstock arrested Sanger’s husband, Bill Sanger, in January 1915 for distributing the pamphlet. Bill Sanger was convicted and spent 30 days in jail. However, this was Comstock’s last court case. He died on September 21, 1915.

Averill: Comstock’s laws did not die with him however. Margaret Sanger was arrested in 1916 for opening the first birth control clinic in America. Although several court cases chipped away at the laws, it really wasn’t until the 1960s that laws banning birth control began to really be worn away. And of course for those convos, listen to our birth control in America series. But you know, these laws stretched back almost a century, reflecting an underlying American belief that contraception promoted promiscuity and frankley, there are many who still believe that today. So it’s not like Comstock’s view of the world actually disappeared with time.

Elizabeth: In the span of roughly 45 years, Comstock achieved enormous power and notoriety. He was never an elected official, but gained his power through the NYSSV and the U.S. Postal Service. His arrest records prove that there was just a huge amount of erotic material circulating privately. I know I pointed out a few of the most silly examples, but there was also a lot of very graphic photos and literature, and plenty of dildos to go around. If you’re interested in seeing what Gilded Age erotica looked like, you can check out the Kinsey Institute at Indiana University. Also Werbel’s book has a lot of images in it too. 

Averill: So that’s it for now. Thanks for listening.

Elizabeth: Make sure to follow us on Facebook and Twitter. Become a patreon supporter. Leave us a review. We appreciate it!

BYE!

Show Notes

Amy Werbel, Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock (Columbia University Press, 2018).


Helen Lefkowitz Horowitz, “Victoria Woodhull, Anthony Comstock, and Conflict over Sex in the United States in the 1870s” The Journal of American History Vol. 87, No. 2 (Sep., 2000), pp. 403-434

An Act for the Suppression of Trade in, and Circulation of, obscene Literature and Articles of Immoral Use, March 3, 1873: https://www.loc.gov/law/help/statutes-at-large/42nd-congress/session-3/c42s3ch258.pdf

Chuck Stewart, ed. Documents of the LGBT Movement: Eyewitness to History (ABC-CLIO: 2018)

The Kinsey Institute, Indiana University. https://kinseyinstitute.org/

David Pivar, Purity Crusade: Sexual Morality and Social Control, 1868-1900. Westport, Conn.: Greenwood Press, 1973.

[1] Werbel, 215.

[2] Anthony Comstock, “Anthony Comstock Seeks to Imprison Inverts (1900),” in Chuck Stewart, ed. Documents of the LGBT Movement: Eyewitness to History (ABC-CLIO: 2018) 23-24.


0 Comments

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.