Following the fall of Anthony Comstock, the age of freedom speech took root in America. Comstock’s death did not cause this shift—his influence had begun to wane long before he died in 1915—which was still more than a decade before the Supreme Court began the laborious task of creating First Amendment doctrine. The culture changed and things did change. Victorian values were lost, and judges as well as society began to understand the arguments for freedom of speech advocated over decades.
There is no serious doubt that the major progressive causes of the mid-twentieth century—from civil rights, the anti-war movement, gay rights, and women’s rights—would not have made the gains they did if First Amendment doctrine had not evolved with the times. Robert Bork was one of the staunchest conservatives who took aim at what he called “the lunacies in America’s rights crazed culture” when First Amendment doctrine was on its rise. Today, the Supreme Court is criticized for denying free speech in these politically charged times.
Professor Burt Neuborne of NYU Law School (a former ACLU lawyer) has written that liberals were fully aligned with strong First Amendment protections when they believed that doing so promoted largely progressive causes—what he calls “the First Amendment era of good feelings.” However, when the courts extended the same protections for conservative speakers and corporations “some progressives started to think they made a poor First Amendment deal.”
The 2018 article by Professor Louis Michael Seidman focuses on the same topic. Is free speech possible to be progressive? Seidman replied to his own question with an emphatic no. He believes there is no opportunity for progressives, under current doctrine, to “weaponize speech” (his words). To transform the First Amendment into a powerful weapon that promotes progressive goals. He argues that this is bad because constitutionalizing freedom of speech can lead to anti-liberal mentality.[s]So long as people think that the Constitution represents a common ground to which everyone can agree, the Constitution cannot be considered progressive.
Steve Shiffrin (University of Cornell Law Professor Emeritus) bitterly asked “What’s wrong? with the First Amendment?” He also accuses courts of “First Amendment Idolatry,” a “sin.” Comstockian phrasing is worthy of an old morals crusader or something less progressive scholar may have written back in the “First Amendment era” of good will.
The real Comstock imitators, however, are anti-speech activists. They do much more than write articles or books and work to have their speech restrictions implemented by law. The message they send is simple and clear: We (or I) know truth and you must keep yourself from being influenced by falsehoods or other harmful ideas. The professional censor believes truth is revealed through whispers from God, political theory or popular vote. But once that has been decided, it’s over for discussion.
Although Anthony Comstock didn’t invent censorship; however, his DNA could be found in every censor on the planet.
The Comstock Playbook
Comstock’s recent resurrection is not illustrated by the causes that he supported, but rather by his tactics for attacking speech he loathed.
His anti-speech activism playbook contains a few tried and true elements. (1) He rejects “freedom speech” as a valuable value, while denouncing evil with blood-andthunder metaphors. (2) He proposes weak First Amendment standards that expand government control on “bad” speech. (3) He equates any opposition with the need to destroy the vice.
Comstock’s techniques are still used by some of the current proponents of banning sexually-oriented speech. Comstockian tropes were used by Professor Catharine McKinnon in her 1980s campaign against pornography. Professor Mary Ann Franks today’s crusades against revenge porn are also based on these Comstockian tropes.
These activists can’t help but refer to free speech advocates without calling them “absolutists,” purists, or the like. She published her book in 2019. Cult of the ConstitutionFranks refers to First Amendment activists as “unthinking fundamentalists”, akin back-country religionists who worship at White Male supremacy’s altar. MacKinnon complains that Americans have been taught freedom of speech since the fourth grade and they just hold on to those beliefs for personal faith.
This rhetoric is reminiscent of Comstock’s. He was averse to First Amendment supporters and believed the divinely-inspiring parsimonious speech laws of his time were divinely inspired. Comstock was allowed to withhold any information related to sex that did not conform to the prevailing legal standard. Comstock argued that this was what the Constitution’s creators wanted, as it would “libel the forefathers”, to claim the Constitution gave the right to “debauch the morals and the youth.”
Ironically, today’s activists that decry the “First Amendment fundamentalism”, favor constitutional interpretations that remind Comstock of his shrunken view about free speech that was triggered by his fundamentalist views. Comstock was a white patriarch and could use English law’s restrictive views of freedom speech to bring down discussions on sex, birth control literature, arts, and other topics that were outside traditional womenhood boundaries. This meant that any speech which had a tendency to “deprave or corrupt the morals” of others was suppressed.
Although modern activists may be more open to radical speech than Comstock was, they still believe that the government should have the same authority as Comstock in deciding which speech is harmful and not protected by the law. In the end, they want to revive an old form of the “bad trend” test which was rejected by the Supreme Court a century ago. It started with two opinions written by Oliver Wendell Holmes, Louis Brandeis, and ended up being rejected again.
Because it proved too simple to silence speech from authors, radicals and other minorities, subsequent court rulings dropped the bad tendency test. Might adverse effects. The Supreme Court in 1957 ended the testing for sex-related speech. Roth v United States.
Like modern activists, Anthony Comstock did not see any distinction between bad thoughts, words, and bad deeds. Writings about sex were treated as “a deadly poison” and placed in the “fountain of moral purity.” This would render society unclean. MacKinnon similarly equates words with actions, claiming that harmful speech (as she defines it) is “tantamount to … saying ‘ready, aim, fire’ to a firing squad.” She has come up with the perfect Comstockian synlogism in this context: Pornography is masturbation material. It can be used to sex. This is why it’s called sex.
Such advocacy depends on another Comstock hallmark—the over-the-top, apocalyptic metaphor.
Anthony Comstock, the undisputed master of this art was a great example. According to him, the licentious publishing were worse than Egypt’s plagues. These publications, “like the fishes that swim in the ocean, spawn millions and every year they germinate, leading to an increase in the number of people who die.” Dime novels are “products corrupt minds.” [that]These are the eggs that all sorts of villainies hatch from,” and bawdy theaters were “recruiting places for hell.”
MacKinnon, despite not being able to match his charm, does an impressive Comstock impression. She asserts that pornography, a technically sophisticated form of human trafficking in women, and hate speech are both “racial/or gender-based terrorists.” As she defines pornography, MacKinnon calls it “the original fake information” and “lies about the sexuality of women and children.”
Comstock, like many political activists, divided the world into two camps—those for his cause and those against it—and he was incapable of separating his opponents from the vice he was working so tirelessly to vanquish. Comstock called anyone opposing him innately corrupt and said they only wanted to preserve “their dear obscenity”. These “free lusters,” he said, favor “the impure and base” but just want “to tear down the holy and pure.”
H.L. Mencken called the strategy “political blackmail”. Mencken observed that moral gladiators like Comstock “know the rules.” He said, “They present to a legislature with an act ostensibly intended to cure some great acknowledged evil. They procure its passage by making barely veiled insinuations about how all those who are against it must be apologists.”
This is a common strategy used by anti-speech activists today. MacKinnon wrote that “it’s difficult to ignore the conclusion” that the First Amendment was interpreted so that men could have their pornography. Franks has used almost the same language when attacking ACLU over its opposition to vague and poorly-drafted laws against revenge porn (which Franks is a special project). Franks writes:[i]You can’t help but conclude that it was motivated by the abusers gender dynamics.
Franks says that ACLU prioritised white men’s rights to free speech rights over all others, because they are a fundamentalist and deeply conservative organization. She continued: ACLU First Amendment advocacy was “defined as consumerism” by Franks, which “endowed it to the pornography business, which then found ways of returning the favor.” Guess what? That Groups like the ACLU will be taught not to object to any Professor Franks legislative proposals.
Moral of the tale
Anthony Comstock’s career and life should be viewed as cautionary tale rather than a model for anti-First Amendment activism. Nadine Strassen wrote that freedom of speech has always been the most powerful weapon against misogynistic violence and discrimination, while censorship has consistently been an effective tool to curb women’s rights.
She ought to know. Strossen, who was first woman to lead the ACLU from 1991 to 2008. She also served as the president of the ACLU between 2008 and 2009. Strossen has been a tireless fighter for women’s rights, including against censorship. Strossen is a writer who has spoken out about the devastating effects of the Comstock law on women and rejects “pro-censorship feminist” legal theories.
It seems that the more you learn about Anthony Comstock the more you will be drawn to the idea of suppressing speech. Amy Sohn, in her Comstock biography rejects “victim-oriented feministism,” which advocates a dark, negative view of sex.
Anna Louise Bates’ 1995 biography on Comstock was also a doctoral dissertation. Bates, a feminist historian and historian, began her graduate studies believing that pornography was degrading all women. She also believed that any pornographic writing should not be legal.
But, her decade-long research led to this amazing detail. Anthony Comstock’s life and career as Weeder in the Garden of the LordBates stated that freedom of speech should be valued above all else, and attempts to enforce purity have historically caused more damage to women than pornographic images.
It may also be a positive side effect of the Comstock revival. Recent works by Comstock may reveal the pitfalls of his tactics, as well as his disregard for constitutional protections. This could be a way to understand why freedom of expression is being sacrificed in pursuit policy goals.
[This post is based on the new book, The Mind of the Censor and the Eye of the Beholder: The First Amendment and the Censor’s Dilemma.]