They’ll be coming for internet porn next

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You might have heard that U.S. Sen. Tina Smith and others are worried that a new Trump administration will use a 150-year-old law to prosecute health care providers who send abortion pills through the mail. Perhaps you don’t care. Maybe you even think this would be a good thing. But beware: If the feds start coming for abortion pills, they’ll soon be coming for internet porn, too.

That’s right. Internet pornography, which many people have been viewing happily for many years without any legal interference, is at risk from the very same law that Smith and others are worried could be used to stop the transportation of abortion pills.

That law, the Comstock Act, prohibits putting “any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character” on the internet. It also does other things, like prohibiting putting information about how to obtain abortion drugs on the internet and sending abortion drugs through the mail. Violation of the law is a felony, punishable by a fine and imprisonment up to five years for a first offense.

As amended in 1996, the Comstock Act is still occasionally used today, most often as an adjunct to more punitive laws in the federal prosecution of child internet pornography cases.

Most of us would 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 pornography of any kind might hesitate to prosecute the posting of pornography involving only consenting adults who also consent to its publication.

Why worry if the Comstock Act isn’t used like this today? Because all it would take is a change in legal interpretation to do so. While such a change wouldn’t normally be expected, we know some groups are seeking to weaponize and deploy the law in new ways right now.

Successful prosecution under the Comstock Act requires proof that the person mailing, transporting or posting the item in question had “criminal intent” in doing so. In other words, people shipping condoms, as in one 1933 case, could only be convicted under the Act if they intended them to be used for an illegal purpose, such as contraception. If they instead intended them for a lawful purpose, like the prevention of disease, then they could not be convicted under the Comstock Act. As another early case noted, “The intention to prevent a proper medical use of drugs or other articles merely because they are capable of illegal uses is not lightly to be ascribed to Congress.”

This interpretation became settled law, despite the lack of Supreme Court precedent on the issue. But now, some want the Supreme Court to upset decades of precedent and allow the Comstock Act’s prohibitions against shipping and distribution of allegedly obscene materials and abortifacients to supersede the legal use of those things.

But what about the First Amendment? Won’t that, at least, protect internet pornography involving only consenting adults? Perhaps for now. But with emboldened crusaders for purity and holiness and activist judges, that might change. The law currently used to judge obscenity leans heavily on “contemporary community standards” to judge whether something is protected under the First Amendment or whether, instead, it just appeals to the “prurient interest” and “lacks serious literary, artistic,” or other merit. Minnesota’s own criminal obscenity statute closely tracks this language. Activists looking to prohibit abortion are also seeking to impose their narrow idea of human sexuality, marriage, family and relationships on all of us. If they get their way with one, it may be just a matter of time before they get the others. All these issues are connected.

What can you do? You can support congressional efforts to repeal the Comstock Act. Because you, too, may have skin in this game.

Laura Hermer is a professor at Mitchell Hamline School of Law in St. Paul. She’s at laura.hermer@mitchellhamline.edu. U.S. Sen. Tina Smith’s commentary regarding the Comstock Act, “I hope to repeal arcane law that could be misused to ban abortion,” was published April 3 — see tinyurl.com/smith-comstock. The Star Tribune Editorial Board weighed in Sunday with “End the ‘zombie’ Comstock Act” (tinyurl.com/st-comstock).