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You may have heard that people like U.S. Sen. Tina Smith are concerned that the new Trump administration will use a 150-year-old law to prosecute health care providers who send abortion pills by mail. Maybe you don’t care. Maybe you even think it would be a good thing. But beware: If the federal government starts asking for abortion pills, they’ll soon be asking for Internet porn, too.
that’s right. For years, many people have happily viewed Internet pornography without any legal interference, but the same laws that Smith and others fear could be used to block the shipment of abortion pills are at risk.
The law, known as the Comstock Act, prohibited the posting on the Internet of “any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, or other indecent matter “. It also did other things, such as prohibiting the posting of information on the Internet about how to obtain abortion pills and the sending of abortion pills through the mail. Violating the law is a felony punishable by a fine and up to five years in prison for a first offense.
Amended in 1996, the Comstock Act is still used occasionally today, most commonly as a supplement to more punitive laws in federal prosecutions of child Internet pornography cases.
Most of us agree that people who post or use child pornography should be punished to the fullest extent of the law. But even those of us who don’t use any form of pornography may be hesitant to sue the publication of pornography that only involves consenting adults who also consented to its publication.
If the Comstock Act isn’t used like this today, why worry about it? Because to do that, all it takes is a change in legal interpretation. While such changes don’t typically occur, we know some groups are now looking to weaponize and deploy the law in new ways.
Under the Comstock Act, successful prosecution requires proof of “criminal intent” on the part of the person mailing, transporting or mailing the item in question. In other words, as in a 1933 case, someone transporting condoms can only be convicted under the act if they intended to use the condoms for an illegal purpose such as contraception. If their purpose was for a legitimate purpose, such as preventing disease, they would not be criminalized under the Comstock Act. As another early case noted, “Intent to prevent the appropriate medical use of a drug or other substance simply because it might be used illegally cannot be readily attributed to Congress.”
Despite the lack of Supreme Court precedent on the issue, this interpretation became settled law. But now, some want the Supreme Court to overturn decades of precedent and allow the Comstock Act’s ban on the transportation and distribution of allegedly obscene materials and abortifacients to supersede the legal use of those items.
But what about the First Amendment? At the very least, wouldn’t this protect internet pornography that only involves consenting adults? Maybe now. But with the emergence of bold and radical judges who are champions of purity and sanctity, this may change. Current laws for determining obscenity rely heavily on “contemporary social standards” to determine whether something is protected by the First Amendment or whether it simply appeals to “obscene interests” and “lacks serious literary, artistic ” or other content. advantage. Minnesota’s own criminal obscenity statute looks closely at this kind of language. Activists seeking to ban abortion also seek to impose their narrow ideas about human sexuality, marriage, family and relationships on all of us. If they get their way, it might just be a matter of time before they get someone else. All these issues are interrelated.
what can you do? You can support Congress’ efforts to repeal the Comstock Act. Because you might be in on the game too.
Laura Hermer is a professor at the Mitchell Hamline School of Law in St. Paul.she sat down laura.hermer@mitchellhamline.edu. Comments on the Comstock Act by U.S. Senator Tina Smith, “I want arcane laws repealed that can be misused to ban abortion.” Published April 3 — See tinyurl.com/smith-comstock. The Star Tribune editorial board weighed in Sunday “Ending the ‘Zombie’ Comstock Act” (tinyurl.com/st-comstock).