Editor’s Note: Marie Ziegler (@maryrziegler) is the Martin Luther King Professor of Law at UC Davis. She is the author of “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment” And “Roe: The Story of a National Obsession. The opinions expressed in this comment are his own. Read more reviews on CNN.
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Matthew Kacsmaryk, an ultra-conservative judge on the U.S. District Court for the Northern District of Texas, has attracted national attention with a series of sweeping rulings on everything from contraception At freedom of expression. The most recent ruling, just a few weeks old, departs from other federal rulings and maintains the drag ban performances.
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Marie Ziegler
There has been a surprising and consistent theme in several of Kacsymaryk’s decisions: the Comstock Act, a 19th-century sexual purity law that lay dormant for more than a century. century. Last spring, when Kacsmaryk ruled that the U.S. Food and Drug Administration (FDA) never had the right authority to approve mifepristonea pill used in the standard medical abortion protocol, which now accounts for more than half of all abortions performed. in the USAhe argued that the Comstock Act made it a federal crime send abortion pills by mail.
Most recently, in supporting a Texas university’s decisions banning drag shows on campus, Kacsmaryk held up the Comstock Act as a central example of the country’s history and tradition of freedom of expression.
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 leading conservative Christian advocate, considers the Comstock law an abortion. to forbid. It is the same Students for Life, another major player in the fight against abortion. Until recently, it was easy to dismiss Comstock’s revival 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 higher courts, the Comstock Act could become a pillar of efforts by hardline conservatives to censor speech about sex.
The Comstock law, at the origin adopted in 1873, had barely been enforced for a century when Kacsmaryk’s April 2023 ruling drew attention to it. Anti-abortion advocates, led by Jonathan Mitchell, the former Texas attorney general who helped create Texas abortion bonus bill, SB8, saw untapped potential in archaic law. These opponents of abortion highlighted the wording of the Comstock Act which made it a federal crime to knowingly post or receive anything “designed, adapted, or intended to produce abortion, or for any other purpose.” indecent Or immoral use.
According to anti-abortion advocates, this language created a de facto national ban on all abortions because any procedure, including surgical abortion, relied on devices or equipment. sent by mail. The fact that the Comstock Act was about much more than abortion seemed to be a disadvantage for conservatives. Even Mitchell described the law as ” too big “.
But Kacsmaryk’s latest decision, read in the context of other GOP proposals, shows that some conservatives could have had much more ambitious 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 they called “A Fool’s Drag Race” to raise money for LGBTQ+ suicide prevention. The university president ended the event and the students for follow-up.
In September, Kacsmaryk ruled that the university had the power to stop the fundraising. Technically, the question in this case was whether the president had qualified immunity. When government officials violate an individual’s civil or constitutional rights, federal law allows action against them only if the law in question is “clearly established”. West Texas A&M students argued that the First Amendment protected their expressive conduct. In recent decisions, federal judges Tennessee And Texas given other prohibitions on drag, it is certainly agreed that the First Amendment protected drag performance.
But Kacsmaryk developed a very different view of the First Amendment. He argued that “history and tradition” should determine what type of speech was protected. And for reasons of history and tradition, he suggested, the government could and did criminalize “sexualized speech.” To demonstrate what “tradition” entailed, Kacsmaryk turned to the Comstock Act.
Given that the law had been on the books for more than 100 years and made it a federal crime to send “obscene, lewd, or lascivious” material, it seemed clear to Kacsmaryk this “obscene” speech had never enjoyed much First Amendment protection.
Furthermore, he claimed, drag shows were conduct, not speech, and often had no expressive content other than obscenity. Even if the drag show had some constitutional protection, Kacsmaryk suggested the university president had a right to be concerned about the presence of children. He stressed that the ban on drag served the “physical and psychological well-being of minors”.
It is possible to view Kacsmaryk’s decision as an outlier, likely to be ignored or overturned by appeals courts. It’s true that Kacsmaryk is one of the the most conservative judges in the country. But read in the contemporary political context, his view of the First Amendment does not seem so unusual.
Eleven states have passed laws prohibiting discussion of sexual orientation, gender identity or even sex in the media. certain public schools (Some, like the one in Florida, apply until the end of high school school). Several states have restricted drag racing performances. Conservative organizations have mobilized to demand the removal of books they consider sexualized. libraries.
Texas Governor Greg Abbott has ordered 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 are willing to say and what books are available in many communities across the country.
This is why the revival of the Comstock Act goes well beyond abortion: it strengthens the fight against speech about sex in more than one way. Conservatives seeking to rewrite First Amendment jurisprudence could turn to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organizationwhich overturned Roe v. Wade and ended the right to choose abortion.
In that case, the court suggested that the Constitution protected rights not stated in the text of the document 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 key evidence that speech about sex has not historically been protected.
The revival of the Comstock Act also has a practical dimension. Until the late 1930s, anti-vice activists and postal inspectors used this law to persecute a broad class of Americans writing and talking about sex. This included publishers mailing editions of famous literary works, from “Canterbury Tales” has “Leaves of Grass” by Walt Whitman.” He also included anatomy texts, sex education materials and information about birth control. Even private love letters – or notes setting up dates – were sometimes considered obscene.
If conservatives reinstate the Comstock Act to end abortion, there’s no reason they can’t enforce the rest of the law as well, which would provide a major boost to local efforts to criminalize speeches about sex.
The Comstock Act is one of the dormant issues in the 2024 election. Republican candidates fielded questions about what new policies they would favor: new bans on drag or sex education in schools, or the ban on abortion or six, or 12 or 15 weeks.
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All of these questions seem a bit silly, since it seems unlikely that a divided Congress would make these policies the law of the land. But polarization and congressional paralysis surely won’t matter to conservatives seeking to resurrect Comstock, because it’s already on the books.
Turning Comstock into a federal ban on abortion — or most speech about sex — requires a Republican presidential administration willing 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 is not difficult to imagine that a Republican could soon reach the White House. And with a large conservative majority on the Supreme Court, it’s not hard to imagine the courts adhering to a radical interpretation of Comstock.
If they do, Kacsmaryk’s decision tells us exactly how much money will be at stake. Access to abortion is threatened in Comstock, but the freedom to talk about sex is also threatened.