The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
After the reign of Anthony Comstock ended the age of free speech in America took off. 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. Things changed in large part because the culture moved on. Victorian mores faded away and society, as well as judges, began to accept the arguments free speech advocates had been making for 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. As First Amendment doctrine was in its ascendency, it was staunch conservatives like Robert Bork who used to rail against what he called "the lunacies of America's rights-crazed culture." Now, in these polarized times, criticism of free speech as a value comes from whomever believes the Supreme Court hasn't favored "their side."
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." But once the courts began extending the same protections to conservative speakers and corporations, "some progressives began to suspect they had made a bad First Amendment bargain."
This same theme is the focus of Professor Louis Michael Seidman's 2018 article, Can Free Speech Be Progressive? Seidman answered his own question with an emphatic "no," because he sees no potential under current doctrine for progressives to "weaponize free speech" (his words) to convert the First Amendment into "a powerful sword that would actually promote progressive goals." This is bad, he argues, because "constitutionalizing the right of freedom of speech leads to an anti-liberal mindset," and "[s]o long as we imagine that the Constitution is the common ground that people of all political persuasions can adhere to, it cannot be progressive."
In the same vein, Cornell University Law Professor Emeritus Steve Shiffrin bitterly asks "what's wrong with the First Amendment?" and he accuses the courts of committing the "sin" of "First Amendment idolatry." This Comstockian turn of phrase is worthy of the old morals crusader himself, or perhaps something a less progressive scholar might have penned back in "the First Amendment era of good feelings."
But the real Comstock imitators are the anti-speech activists, who do more than just write books or articles, and who strive to get their proposed speech restrictions implemented in law. Their message is clear and unmistakable: I (or we) know the truth, and must control the ideas or influences to which you may become exposed to protect you from falling into error (or sin). For the professional censor, truth may be revealed by whispers from god, by political theory, by popular vote, or by social science, but once it has been determined, the time for debate is over.
Anthony Comstock did not invent censorship, but his DNA may be found in the genetic code of every would-be censor who walks the earth.
The Comstock Playbook
Comstock's current resurrection is illustrated not so much by the particular causes he championed, but by his methods for attacking the speech he hated.
His playbook for the anti-speech activist includes a number of time-tested elements: (1) rejecting "freedom of speech" as a value in its own right while denouncing the evil to be vanquished with blood-and-thunder metaphors; (2) proposing weak and malleable First Amendment standards to expand government control over "bad" speech or "unworthy" speakers; and (3) equating any opposition with love of the vice to be destroyed.
Some current advocates of measures to ban sexually-oriented expression appear to have learned much from Comstock's technique. Professor Catharine MacKinnon's campaigns against pornography that began in the 1980s are based in Comstockian tropes, as are Professor Mary Ann Franks' crusades against "revenge porn" today.
Such activists cannot bring themselves to describe free speech proponents without dismissing them as "absolutists," "purists," or the like. In her 2019 book, The Cult of the Constitution, Franks characterizes First Amendment advocates as unthinking fundamentalists, akin to back-country religionists, who worship at the altar of White male supremacy. Meanwhile, MacKinnon grumbles that Americans are taught to revere freedom of speech "by about the fourth grade" and simply hang onto those beliefs as a matter of "personal faith."
Such rhetoric mirrors that of Comstock, who felt nothing but disdain for First Amendment advocates, and who believed that the parsimonious speech protections of his day were divinely inspired. The prevailing legal test at the time empowered him to suppress virtually any information relating to sex, including medical information about reproductive health and birth control. This had to be what the Constitution's framers intended, Comstock reasoned, for it would "libel our forefathers" to suggest the Constitution contained a right "to debauch the morals of the young."
Ironically, modern activists who decry "First Amendment fundamentalism" advocate constitutional interpretations that are eerily reminiscent of Comstock's shrunken view of free expression that arose from his own fundamentalist beliefs. Being the puritan White male patriarch that he was, Comstock could rely on the restrictive conceptions of free speech borrowed from English law to prosecute discussions of sex, birth control, literature, art, and anything that pushed the boundaries of traditional womanhood. That meant suppressing any speech with a tendency "to deprave and corrupt the morals of those whose minds are open to such influences."
Modern activists may favor radically different speech than did Comstock, but they would accord the government the same broad authority to decide which speech is "evil" and therefore outside the law's protection. Ultimately, they are trying to revive a form of the "bad tendency" test, which the Supreme Court began to reject a century ago, starting with separate opinions by Oliver Wendell Holmes and Louis Brandeis.
Successive court decisions moved away from the bad tendency test because experience showed it was all too easy to suppress speech by authors, radicals, and dissenting minorities if all the government had to prove was that the speech might have bad effects. For sex-related speech, the Supreme Court finally abandoned the test in 1957 in Roth v. United States.
Anthony Comstock, much like modern activists, saw no distinction between evil thoughts or words and evil deeds. He considered any writings that touched on sex "a deadly poison, cast into the fountain of moral purity" that necessarily pollute society. 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." In this connection she has written the perfect Comstockian syllogism: "Pornography is masturbation material. It is used as sex. It therefore is sex."
Such advocacy depends on another Comstock hallmark—the over-the-top, apocalyptic metaphor.
In this, Anthony Comstock was the unparalleled master. To him, licentious publications were worse than the plagues of Egypt, that, "like the fishes of the sea, spawn millions of seed, and each year these seeds germinate and spring up to a harvest of death." Dime novels were "products of corrupt minds [that] are the eggs from which all kinds of villainies are hatched," and bawdy theatres were the "recruiting stations for hell."
Although modern activists can't quite match the old man's flair, MacKinnon does a spectacular Comstock impression, asserting that pornography is a "technologically sophisticated form of trafficking in women," and that hate speech and pornography are "racial and/or gender-based terrorism." She denounces pornography (as she broadly defines it) as "the original fake news," and "lies, pure and simple, about women's and children's sexuality."
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. He denounced anyone who opposed him as being innately depraved and insisted they were seeking merely to protect "their dear obscenity." Such "free lusters," as he called them, "naturally favor the impure and base" and just want to "tear down the pure and holy."
H.L. Mencken called this strategy political blackmail. He observed that "moral gladiators" like Comstock all "know the game." "They come before a legislature with a bill ostensibly designed to cure some great admitted evil, they procure its enactment by scarcely veiled insinuations that all who stand against it must be apologists for the evil itself."
Some modern anti-speech activists employ the same gambit. MacKinnon has written "it is difficult to avoid the conclusion that the First Amendment is construed as it is so men can have their pornography." More recently, Franks uses almost identical language in attacking the ACLU because of its opposition to overbroad and poorly drafted laws against "revenge porn" (which is Franks' special project). She writes "[i]t is difficult to avoid the conclusion that its motivation for doing so has to do with the gender dynamics of the abuse."
According to Franks, the ACLU has prioritized "white men's free speech rights" over others because it is "a deeply conservative, and fundamentalist, organization." She goes on: The ACLU's First Amendment advocacy is "defined by consumerism" which has "endeared it to the pornography industry, which found ways to return the favor." I guess that will teach groups like the ACLU not to oppose any of Professor Franks' legislative proposals.
The moral of the story
Anthony Comstock's life and career should serve as a cautionary tale, not as a blueprint for anti-First Amendment activism. As Nadine Strossen has written, "freedom of speech consistently has been the strongest weapon for countering misogynistic discrimination and violence, and censorship consistently has been a potent tool for curbing women's rights and interests."
She should know. Strossen was the first woman to head the ACLU, serving as its president from 1991 to 2008, and she has fought countless battles both to protect women's rights and to oppose censorship. Strossen has written about the Comstock's law's devastating impact on women, and strongly rejects the legal theories of what she calls "pro-censorship feminists."
In this regard, the more people learn about Anthony Comstock, the more they tend to recoil at the idea of suppressing speech as the solution. Thus, in her Comstock biography, Amy Sohn rejected what she calls "victim-oriented feminism," whose proponents have as dark and negative view of sex as Comstock himself.
Such was also the case with Anna Louise Bates, whose 1995 biography of Comstock began as a doctoral dissertation. As a feminist historian, Bates started her graduate studies with the conviction that "pornography degraded all women, and that all pornographic writing should be illegal."
However, after a decade of research reflected in her wonderfully detailed Weeder in the Garden of the Lord: Anthony Comstock's Life and Career, Bates concluded that free speech is "a liberty above price," and efforts to enforce purity "have historically done far more harm to women than pornographic pictures."
That may be the positive aspect of the current Comstock resurgence. By bringing to light Comstock's underhanded tactics and his utter disregard for constitutional protections, these recent works may help explain the price to be paid when policy goals are given priority over freedom of expression.
[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.]