Opinion: The 19th century sexual purity law that some want to revive

Opinion by Mary Ziegler

(CNN) — Matthew Kacsmaryk, an ultra-conservative US District Court judge in the Northern District of Texas, has captured national attention with a string of sweeping rulings on everything from contraception to the freedom of speech. The most recent ruling, now just a few weeks old, breaks from other federal decisions and upholds a ban on drag performances.

There has been a surprising and consistent theme in several of Kacsymaryk’s rulings: the Comstock Act, a 19th-century sexual purity law that has lain dormant for more than a century. Last spring, when Kacsmaryk ruled that the US Food and Drug Administration (FDA) never had the authority to approve mifepristone, a pill used in the standard protocol for medication abortion, which now accounts for more than half of abortions performed in the United States, he argued that the Comstock Act made it a federal crime to mail abortion pills.

More recently, in upholding a Texas university’s decisions to prohibit drag performances on campus, Kacsmaryk framed the Comstock Act as a central example of the nation’s history and tradition when it came to freedom of speech.

Other conservatives have adopted Kacsmaryk’s Comstock argument. Conservative attorneys general invoked the Comstock Act to threaten pharmacies with criminal charges if they become certified to dispense mifepristone. The Alliance Defending Freedom, a major conservative Christian litigator, frames the Comstock Act as an abortion ban. So does Students for Life, another major anti-abortion player. Until recently, it was easy to dismiss the revival of Comstock as a political expedient: a backdoor attempt to ban abortion and nothing more. Read in context, Kacsmaryk’s latest ruling reveals a more explosive possibility: If approved by more judges and by higher courts, the Comstock Act could become a linchpin in extreme conservatives’ efforts to censor speech about sex.

The Comstock Act, originally passed in 1873, had hardly been enforced in a century when Kacsmaryk’s April 2023 ruling called attention to it. Anti-abortion lawyers, led by Jonathan Mitchell, the former Texas attorney general who helped to create Texas’s abortion bounty bill, SB8, saw untapped potential in the archaic law. These abortion opponents pointed to language in the Comstock Act that made it a federal crime to knowingly mail or receive anything “designed, adapted, or intended for producing abortion, or for any indecent or immoral use.”

This language, argued anti-abortion attorneys, created a de facto national ban on all abortions because any procedure, including surgical abortion, relied on devices or equipment sent in the mail. That the Comstock Act was about much more than abortion seemed to be an inconvenience for conservatives. Even Mitchell described the statute as “overbroad.”

But Kacsmaryk’s latest ruling, read in the context of other GOP proposals, shows that some conservatives may have had much bigger plans for the Comstock Act all along. The new case involved one of several recent attempts to censor drag performances. An LGBTQ+ group at West Texas A&M University planned what it called “A Fool’s Drag Race” to raise money for LGBTQ+ suicide prevention. The university president shut down the event, and the students sued.

In September, Kacsmaryk ruled that the university had the authority to stop the fundraiser. Technically, the question in the case was whether the president had qualified immunity. When government officials violate an individual’s civil or constitutional rights, federal law allows for lawsuits against them only if the right at issue is “clearly established.” The students at West Texas A&M argued that the First Amendment clearly protected their expressive conduct. In recent decisions, federal judges in Tennessee and Texas considering other drag bans certainly agreed that the First Amendment protected drag performances.

But Kacsmaryk developed a very different vision of the First Amendment. He argued that “history and tradition” should determine which kind of speech was protected. And as a matter of history and tradition, he suggested, the government could and did criminalize “sexualized speech.” For evidence of what “tradition” involved, Kacsmaryk looked to the Comstock Act.

Given that the law had been on the books for more than 100 years, and given that it made it a federal crime to mail “obscene, lewd, or lascivious” materials, it seemed clear to Kacsmaryk that “lewd” speech had never enjoyed much First Amendment protection.

Besides, he argued, drag shows were conduct, not speech, and often had no expressive content besides lewdness. Even if the drag show did have some constitutional protection, Kacsmaryk suggested that the university president had a right to worry that children might be present. He stressed that banning drag served the “physical and psychological wellbeing of minors.”

It’s possible to dismiss Kacsmaryk’s ruling as an outlier, likely to be ignored or overturned by appellate courts. It’s true that Kacsmaryk is one of the nation’s most conservative judges. But read in contemporary political context, his take on the First Amendment doesn’t look so unusual.

Eleven states have introduced laws banning the discussion of sexual orientation, gender identity or even sex in some public school settings (some, like Florida’s, apply through the end of high school). Several states have restricted drag performances. Conservative organizations have mobilized to demand the removal of what they deem sexualized books from libraries.

Texas Gov. Greg Abbott has directed the state’s education agency to “investigate any criminal activity in our public schools involving the availability of pornography.” The possibility of criminal charges against librarians, educators and drag performers has already affected what many some are willing to say, and which books are available in many of the nation’s communities.

That’s why the revival of the Comstock Act is about much more than abortion: It bolsters the fight against speech about sex in more ways than one. Conservatives looking to rewrite First Amendment jurisprudence may look to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and ended the right to choose abortion.

There, the court suggested that the Constitution protected rights not spelled out in the document’s text only when they were deeply rooted in history and tradition. Kacsmaryk wants to import this test into First Amendment jurisprudence. And he sees the Comstock Act as a key piece of evidence that speech about sex has not historically been protected.

Reviving the Comstock Act has a practical dimension too. Until the late 1930s, anti-vice activists and postal inspectors used the statute to persecute a broad category of Americans writing and speaking about sex. That included publishers mailing editions of famous works of literature, from Geoffrey Chaucer’s “Canterbury Tales” to Walt Whitman’s “Leaves of Grass.” It also included anatomy texts, sex education materials and information about birth control. Even private love letters — or notes arranging dates — were sometimes seen as lewd.

If conservatives revive the Comstock Act to stop abortion, there is no reason they couldn’t bring the rest of the law to bear too, giving local efforts to criminalize speech about sex a major boost.

The Comstock Act is one of the sleeper issues of the 2024 election. GOP hopefuls have fielded questions about new policies they would favor: fresh bans on drag or school sex education, or prohibitions on abortion or six, or 12 or 15 weeks.

All of these questions seem a little silly because a divided Congress seems unlikely to make any of these policies the law of the land. But congressional polarization and paralysis surely won’t matter to the conservatives looking to resurrect Comstock because it’s already on the books.

Transforming Comstock into a federal ban on abortion — or on most speech about sex — requires a Republican presidential administration ready to enforce the law and federal courts willing to accept conservatives’ interpretation of the statute.

With former President Donald Trump and President Joe Biden roughly tied in most polls, it’s not hard to imagine that a Republican could be in the White House soon. And with a conservative supermajority on the Supreme Court, it isn’t hard to envision the courts buying a sweeping interpretation of Comstock.

If they do, Kacsmaryk’s ruling tells us just how much will be on the line. Abortion access is on the chopping block when it comes to Comstock, but the freedom to talk about sex is under threat too.

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