FAN 186 (First Amendment News) Major new book on Anthony Comstock & his censorial crusades

“Lust on Trial” is the story of the most extraordinary efforts in American history to make us a moral Christian nation . . . . [It is the story of a man] who truly believed that lust would lead mankind to the eternal fires of hell. [Thus, it] was his mission throughout his life to destroy any materials that would arouse lust . . . . And he pursued that mission relentlessly throughout his career. — Amy Werbel 

Anthony Comstock

Anthony Comstock (1844-1915): By any and all measures, he was the greatest enemy of free speech in America; and his legacy of suppression endured long after he died. Intoxicated with his own sense of moral righteousness and obsessed with what he deemed to be immoral expression, Comstock (a devoted evangelical) went after his targets with ruthless passion. No book, dime novel, newspaper, magazine, pamphlet, manual, photograph, printing plate or even postcard was safe from his censorial clutches. This founder of the New York Society for the Suppression of Vice roamed his world searching for any signs of immorality.  Later, he succeeded in urging Congress to pass the Comstock Law. Under it, it was illegal to mail any “obscene, lewd, or lascivious” materials. Likewise, it was unlawful to print or distribute anything counseling or even discussing abortion, contraception, or the prevention of venereal disease. Armed with such powers, this special agent of the United States Postal Service prosecuted and persecuted the impure with a manic vengeance. To buttress his influence, he also wrote books — e.g. Frauds Exposed (1872) and Traps for the Young (1883)

“For more than four decades,” wrote Robert Corn-Revere, “Comstock terrorized writers, publishers, and artists—driving some to suicide . . . . George Bernard Shaw popularized the term ‘Comstockery’ to mock the unique blend of militant sanctimony and fascination with the lurid that marks American prudishness.”

David Brudnoy, Comstock’s Nemesis: Theodore Schroeder, (Oct. 1975)

Professor Amy Werbel

The last major work on Comstock and his suppressive ways was done in 1927 by Heywood Broun and Margaret Leech; it was titled Anthony Comstock: Roundsman of The Lord

Now comes a major new book on Comstock and his censorial calling, a book a decade in the making and rich with historical details based on original sources.  The book is titled Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock (Columbia University Press). Its author is Amy Werbel who is an Associate Professor of the History of Art at the Fashion Institute of Technology.

AbstractLust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock offers a new and unadulterated view of the risqué behaviors and complex sexualities of Americans in the Gilded Age and Progressive Eras, and a fresh perspective on legal efforts to expand civil liberties before World War I. Extensive new research conducted in dozens of public and private archives makes it possible for the first time to fully tell the story of Anthony Comstock’s censorship of American visual culture, and to publish examples of the “obscenities” he suppressed. Lust on Trial illuminates the complex relationship between censorship and cultural change, and offers thought-provoking insight into our nation’s long struggle to live up to the promise of the First Amendment.


YouTube video of Professor Werbel discussing her book

→ Introduction to Lust on Trial here

Publishers Weekly (review: “fascinating, page-turning study”)

→ Amy Werbel, For Our Free Speech, We Have Censors to Thank, Chronicle of Higher Education, Sept. 14, 2015

Advance Praise

“Amy Werbel’s Lust on Trial offers a brilliant analysis of the life and times of Anthony Comstock, the fiercely religious moralist who led the national campaign to rid the United States of sexual expression from 1873 until his death in 1915. As Werbel powerfully demonstrates, Comstock’s efforts to persuade the nation that such expression “corrupts the mind . . . and damns the soul” perilously threatened our nation’s separation of church and state. This lesson in how religious fanaticism can destroy our freedom is now more important than ever.” – Geoffrey R. Stone

 “In this vibrant history, Amy Werbel explores the legal and cultural battles surrounding the censorship of “obscene” materials in late nineteenth and early twentieth century New York. Lust on Trial not only mines the history of censorship and repression in a modernizing America, but also sheds light on its legacy for current debates.” – Nadine Strossen

Discounted priced for FAN readers

 If you add the book to your cart, you can then use the code cup30 for a significant discount, go here

(look for discount code box — $10.50 off the $35.00 list price — much cheaper than Amazon!)

Association of University Presses issues statement on censorship

The Association of University Presses (AUPresses) yesterday issued a statement of guiding principles addressing attempted censorship in a global network of scholarly communications. The Board of Directors of AUPresses approved the statement to affirm “the fundamental importance of the integrity of the scholarship entrusted to us and the essential role of university presses in supporting the values which safeguard that integrity.”

University presses around the world serve scholars — as authors and readers — on a global scale, with local impact. The Association understands that in this more closely networked world, publishers may receive more frequent requests to censor or otherwise alter the content they have published.

“All attempts to censor the scholarly record must be met with the deepest concern,” reads “Facing Censorship: A Statement of Guiding Principles.” The Association recognizes that individual publishers may be faced with difficult situations, wherein the theoretically complementary values of access and integrity, intellectual freedom and cultural sensitivity, equal treatment of customers and the safety of staff, may suddenly be in tension. A publisher should be able to turn to the support of its home institution and the community of university presses when facing such challenges.”

Nicole Mitchell (credit: Hayley Young)

“We have recently seen cases where scholarly publishers have been forced to grapple with these issues in real time. Good faith arguments attempt to balance questions of access and integrity with sometimes very different results, and we all recognize the seriousness of any ultimate decision,” said Peter Berkery, AUPresses Executive Director.

Nicole Mitchell, Association President, and Director, University of Washington Press, added, “The board felt that it was important for the Association to make a clear affirmation of our community’s values and to provide some guidance for any of our member presses who may be called upon to change the shape of the scholarly record.”

Headline — “First Amendment: Skim Milk Labeling Leads Maryland Dairy to Sue FDA”

This from Wyatt Bechtel writing for the Dairy Herd: “A Maryland dairy farm with its own milk bottling business is suing the U.S. Food and Drug Administration over the labeling of skim milk and if it violates the First Amendment. A lawsuit was filed by the non-profit group the Institute for Justice with Randy and Karen Sowers, owners of South Mountain Creamery near Frederick, Maryland, on April 5 against the FDA.”

At issue is South Mountain Creamery’s labeling of skim milk. The dairy milks 550 cows and bottles milk on-farm selling to about 5,000 customers. South Mountain Creamery is attempting to sell pasteurized, all-natural skim milk in Pennsylvania. However, the FDA wants the milk to be labeled as “imitation skim milk” or “imitation milk product” because it does not contain added vitamins.The Sowers and Institute for Justice believe this is a government overreach and violation of the First Amendment.”

dairy farmer Randy Sowers

Justin Pearson

YouTube video here

“The government does not have the power to change the meaning of words or ignore common sense,” said Justin Pearson, a senior attorney with the Institute for Justice, which represents South Mountain Creamery in court. “The FDA is creating confusion where there was none whatsoever. People know what skim milk means, but they have no idea what ‘imitation milk product’ means. Pure, all-natural skim milk is not an ‘imitation’ of anything.”

As noted on The Institute For Justice’s website, this dairy “case is part of IJ’s National Food Freedom Initiative. This nationwide campaign brings property rights, economic liberty and free speech challenges to laws that interfere with the ability of Americans to produce, market, procure and consume the foods of their choice.”

Florida public employee suit over social media post allowed to continue

He’s not proud of what he said,” said his Orlando attorney, Howard Marks. “He’s very upset about the issue. Looking back, would he have used the exact words? I doubt it. But as a government employee, you have a First Amendment right to say these things and not get fired.” — Orlando Sentinel (April 11, 2018)

This from David Hudson over at The First Amendment Encyclopedia: “The controversy began when B. Stanley McCullars learned that Orange County/Osceola County State Attorney Aramis Ayala announced at a March 2017 press conference that her office would not seek the death penalty in any cases.”

“McCullars was the assistant finance director for the clerk and court and comptroller of Seminole County.”

“McCullars disagreed with that position and expressed his disagreement in colorful terms:  ‘maybe she [Ayala] should get the death penalty’ and ‘she should be tarred and feathered if not hung from a tree.’ Three days later, McCullars’ boss, Grant Maloy – the Seminole County Clerk of Court, told McCullars that the post presented a First Amendment issue and McCullars’ job was safe.  However, the next day Maloy terminated McCullars.”

“. . . U.S. District Court Judge for the Middle District of Florida Paul G. Byron declined to dismiss the lawsuit and declined to grant qualified immunity to Malloy.   The judge noted the U.S. Supreme Court’s seminal public employee decision Pickering v. Board of Education (1968), in which the Court balanced a public employee’s right to engage in free speech on a matter of public concern against a public employer’s right to an efficient governmental operation. . . .”

Personal Reflections: Paul Smith on Masterpiece Case 

Over at Balkanization, Paul M. Smith writes: ” [A]s a gay person I see fundamental problems with [the approach of those who sympathize with the baker and his claim of being forced to violate his beliefs]. . . . Why? In part, of course, it’s because we will bear the brunt of the harm if the Supreme Court says it’s ok for a retail business owner to follow his own beliefs when they conflict with anti-discrimination protections.  But it’s more than that.  Because of our life experience, we know the real cost of living in a place where we might be refused if we walk into a business and ask for service simply because of who we are.”

Paul M. Smith

“. . . . [The hard-won reassurance that gays will be accepted and treated fairly and with respect] will go away, though, if the Court recognizes the right of a business owner to refuse service to us based on religious or moral disapproval of gay people.  No matter how “out and proud” one may be, there is still lurking in the background the experience of struggle to get there, and there is still the daily navigation of the world choosing when or whether to be visibly who you are.  And that question becomes even more fraught if there is a risk, every time we walk into a business, that we will be sent away, judged morally unworthy by the person whose goods or services we were just trying to buy — or if, as the Justice Department told the Supreme Court, businesses have a right to post signs in shop windows saying ‘same-sex couples not served.'”

“People in this country have every right to personally disapprove of my [gay] marriage. But they should not have a right to translate those beliefs into exclusionary policies when they open a business like the Masterpiece Cakeshop.  They can choose who to associate with in their private lives.  But not when they open a business serving the public.  That is where we have always drawn the line in this country, and that shouldn’t change just because a purveyor of really excellent wedding cakes asks for the right to refuse to serve us because of who we are.”

“So to Speak” Podcast — Lee Levine on Defamation

In January, President Donald Trump called America’s libel laws “a sham and a disgrace.” Are they? On this episode of So to Speak: The Free Speech Podcast, we sit down with Ballard Spahr Senior Counsel Lee Levine to discuss what America’s libel “laws” really are — and are not. Nico Perrino interviews Mr. Levine.

 “Clear and Present Danger” Podcast — The not-so-Dark Ages

Find out why the Middle Ages were as much a period of reason and inquiry as inquisition and persecution.

Why was the famous medieval intellectual Pierre Abelard castrated, forced to burn his works, and condemned to silence by the church? How did the combination of Aristotelian philosophy and the development of universities institutionalize reason and science? What are the parallels between clashes over academic freedom in the 13th and 21st centuries? All this and much more in Clear and Present Danger — episode 6! (Narrated by  Jacob Mchangama)

Three Forthcoming Books

  1.  Timothy Zick, The Dynamic Free Speech Clause: Free Speech and Its Relation to Other Constitutional Rights (Oxford Univ. Press, 2018)
  2. Marvin Kalb, Enemy of the People: Trump’s War on the Press (Brookings Institution Press, Sept. 25)
  3. Geoffrey Stone & Lee Bollinger, The Free Speech Century (Oxford University Press, Dec. 3, 2018)

Four New or Forthcoming Scholarly Articles

  1. Claudia E. Haupt, Licensing Knowledge, Vanderbilt Law Review (2019)
  2. Timothy E. D. Horley, Rethinking the Heckler’s Veto After Charlottesville, Virginia Law Review (2018)
  3. Kendall Burchard, Your ‘Little Friend’ Doesn’t Say ‘Hello’: Putting the First Amendment Before the Second in Public ProtestsVirginia Law Review (2018)
  4. Timothy Zick, Justice Scalia and Abortion SpeechFirst Amendment Law Review (2017)

Three New & Notable Blog Posts

“President Trump blocked some of his critics on his Twitter handle, @realDonaldTrump, prompting a lawsuit arguing that such action violated their First Amendment rights. The lawsuit raised questions about the use of social media sites by public officials. Clearly, a personal website of a public figure is not subject to First Amendment restrictions, and so the site operator can block users. But a site run by the government, or run by a public official for his public business, would likely be categorized as a limited public forum protected by the First Amendment. Officials would violate the First Amendment if they discriminated against posters because of their viewpoint. But is @realDonaldTrump a personal site or an official government site? That’s a key question. He started the account in 2009, when he was a private citizen, but now uses it to share policy statements and his views on public issues. For news, analysis, history & legal background read on. . . .”

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News, Editorials, Op-eds & Blog Posts

  1. Matthew Dessem, If the First Amendment Means Anything, It Means Advertisers Have to Lavishly Fund a TV Show Where I’m a Jerk to High Schoolers, Slate, April 10, 2018
  2. Laura Ingraham returns with promise to fight for the First Amendment, Washington Post, Apil 10, 2018
  3. Mary E. O’Leary, Yale police accuse university of violating officer’s First Amendment rights, New Haven Register, April 9, 2018
  4. David Hudson, Jr., Does man have First Amendment right to wear Packers jersey to Bears event?, The First Amendment Encyclopedia, April 8, 2018

YouTube — On Free Speech & Campus Speech

  • Gwen Torges, What does free speech on campus mean?, Indiana University, April 5, 2018 (“What does free speech on a university campus mean? IUP political science associate professor Gwen Torges, a Constitutional law scholar and member of IUP’s Free Speech Project, talks about free speech issues on campus, ranging from social media to controversial speakers on campus to free speech in the classroom. Professor Torges talks about how “free speech is a two-way street” and how words are powerful, and urges responsibility on how words are used.”)

2017-2018 Term: First Amendment Free Expression Cases

Cert. Granted

  1. Benisek v. Lamone (argument: March 27, 2018)
  2. National Institute of Family and Life Advocates v. Becerra (argument: March 20, 2018)
  3. Lozman v. City of Riviera Beach, Florida (argument: Feb. 27, 2018)
  4. Minnesota Voters Alliance v. Mansky (argument: Feb. 28, 2018)
  5. Janus v. American Federation of State, Municipal and County Employees(argument: Feb. 26, 2018)
  6. Masterpiece Cakeshop v. Colorado Civil Rights Commission (argument: Dec. 5, 2017)

Pending: Cert. Petitions 

  1. Contest Promotions, LLC., v. City & County of San Francisco
  2. Holmes v. Federal Election Commission
  3. Flanigan’s Enterprise, Inc. v. City of Sandy Springs
  4. Nationwide Biweekly Administration, Inc., et al v. Perez
  5. CTIA v. City of Berkeley 
  6. Harris v. Cooper 
  7. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
  8. Livingwell Medical Clinic, Inc. v. Becerra
  9. Berninger v. Federal Communications Commission

Review Denied

  1. Walker v. N.Y.C. Dep’t of Educ. et al.
  2. Shepard v. Florida Judicial Qualifications Commission 
  3. Morris v. Texas (dismissed for want of jurisdiction)
  4. Connecticut v. Baccala
  5. Tobinick v. Novella
  6. Muccio v. Minnesota
  7. Elonis v. United States
  8. Final Exit Network, Inc. v. Minnesota 

Free-Speech Related Cases: Cert. Granted

  • Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment.)

Free-Speech Related Cases: Cert. Pending

  • Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States(1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)

Free-Speech Related Cases: Cert. Denied

Last Scheduled FAN # 185Nearly $2 million awarded in anti-SLAPP case involving Sheldon Adelson

Next Scheduled FAN # 187: Wednesday, April 18, 2018

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