The Comstock Act of 1873 is a series of provisions in federal law, currently still in effect and enforced, that generally criminalize the conveying of obscene matter through the post office or common carriers. It also covers 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. It was amended multiple times since initial enactment, most recently in 1996. The law is loosely attributed to U.S. Postal Inspector and anti-vice activist Anthony Comstock (1844-1915).
The law was applied broadly for much of its history, but more recently the scope of enforcement narrowed because of various court rulings. Today enforcement is primarily focused on prosecuting child pornography (with the most recent conviction under the Act being made in 2021).
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.
The first of the two sections of the Comstock Act which are contained under chapter 71, title 18, United States Code, is section 1461. 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:
An article designed, adapted, or intended for obscene or abortion-causing purposes.
An article advertised or otherwise described in a manner calculated to lead to its application for obscene or abortion-causing purposes.
Mail matter giving information as to who, what, where, or how an article (either designed, adapted, intended for use or described in a manner to calculated to incite its use for obscene or abortion-causing purposes) may be obtained or made.
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.
Mail matter advertising or representing as to whether or by what means an article may be applied for obscene or abortion-causing purposes.
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 (for being overbroad) in United States v. Goldstein (1976).
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 (1975). As far as illegal abortion procurement is concerned, that is criminal solicitation and the First Amendment affords no constitutional protection.
The second of the three primary sections of the Comstock Act is codified in a positive law title at section 1462 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 (which in this section is either import, carriage in interstate or foreign commerce, or receipt of the specified material) 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: