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The clock is ticking, and the free-speech world is waiting, for the posthumous pardon of publisher D.M. Bennett — the victim of an egregious First Amendment violation by the censor of all censors, Anthony Comstock, whose life and legacy was recently chronicled by Robert Corn-Revere in “The Mind of the Censor and the Eye of the Beholder”.

This pardon request (submitted 149 days ago and counting!) comes at a time when the evil done by Comstock stands to be  by way of a “150-year-old federal statute called the Comstock Act to ban all abortions nationwide without any need for congressional action.”

Comstock’s much-publicized efforts to disrupt pornography and other sex trades was critical to the passage of the Comstock Act in 1873. Five years later, on Dec. 10, 1878, US Postal Inspector Comstock  Bennett for “mailing Cupid’s Yokes, a free love pamphlet. Bennett was  in the Albany Penitentiary for 11 months, during which his health greatly suffered. Despite a strong campaign for President Rutherford B. Hayes to pardon him, Hayes declined, pardoning the actual author (Ezra Heywood) instead.”

Request for a posthumous pardon 

After 145 years of injustice, FIREseeks pardon for publisher jailed for mailing ‘obscene’ literature

Press Release

First Amendment expert who secured posthumous pardon for Lenny Bruce seeks justice from President Joe Biden for another wronged American.

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Back in June, FIRE(per Robert Corn-Revere, chief counsel) sought a posthumous pardon from President Biden. It opened with this:

Pursuant to Article II, Section 2, Cl. 1 of the United States Constitution and 28 CFR § 1.1, Roderick Bradford, publisher of The Truth Seeker, respectfully requests a posthumous pardon for DeRobigne Mortimer Bennett (“D.M. Bennett”), the founder of The Truth Seeker, who was convicted in 1879 of violating the “Act for the Suppression of Trade in and Circulation of Obscene Literature and Articles of Immoral Use,” Act of March 3, 1873, ch. 258, § 2, 17 Stat. 599, commonly known as the Comstock Act. 

Thereafter, the opening argument continued:

The Comstock Act has been much in the news of late because of efforts to revive its long-moribund provisions in ongoing debates over freedom of expression, abortion, and contraceptives. Although framed as an obscenity law, the Act was so broadly worded that it was used to prosecute literature, art, scientific and medical texts, and, in Bennett’s case, the publisher of a freethought journal. It was also wielded as a weapon against opponents of the Comstock Act who, like D.M. Bennett, advocated for its repeal. Developments in constitutional law through the twentieth century rendered the statute largely a dead letter, but recent events are threatening to breathe new life into this obsolete law. 

By granting this pardon, the President would help right the injustice resulting from D.M. Bennett’s wrongful prosecution and conviction, and at the same time send the important message that Victorian Era laws should not be revived to undermine Americans’ individual rights. As philosopher George Santayana warned, “those who cannot remember the past are condemned to repeat it.” In this regard, a posthumous pardon for D.M. Bennett would be an act of remembrance that may help forestall reliving a lamentable past.

Why a posthumous pardon?

So what’s the point of a ? I mean, it sure as hell isn’t going to help the dead. They already paid their wrongful dues. It may help the living win favor, as in the case of President Donald Trump’s ironic  of the feminist Susan B. Anthony, which helped curry favor with anti-abortionists who champion Anthony’s “pro-life” views.

Sometimes such pardons are given to settle a factually contested set of circumstances: Did the rock singer Jim Morrison actually come on stage during a 1969 concert and expose himself? It’s difficult to know. Thus in 2010, on the occasion of Morrison’s birthday, Florida Gov. Charlie Crist  for The Doors’ lead singer, acknowledging that the punishment Morrison received was unjust.

Sometimes posthumous pardons are granted to draw attention to egregious past violations of our free speech freedoms. Two notable examples are New York Gov. George Pataki’s 2003 , who had been convicted of obscenity, and Montana Gov. Brian Schweitzer’s  convicted of sedition amid the anti-German hysteria of the First World War.

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Related

• Robert Corn-Revere’s  to posthumously pardon Lenny Bruce

SCOTUS denies review in Jan. 6 ‘parading’ case

• Ella Lee, “,” The Hill (Nov. 12)

The Supreme Court said Tuesday it will not consider a challenge to a misdemeanor charge used against scores of Jan. 6, 2021, rioters for unlawfully “parading” in the Capitol.

Florida native John Nassif was convicted of four misdemeanor counts in connection with the Capitol riot and sentenced to seven months in prison, which he has already served. Federal prosecutors said he led a call-and-response chant, yelling, “Whose house? Our house!” before gaining entry into the Capitol and gesturing to others to join him there.

In Nassif’s  to the justices, he asked them to determine whether the statute, Section 5104(e)(2)(G), is “unconstitutionally overbroad.”

“Although this case arises out of the events of January 6, 2021, 5104(e)(2)(G) criminalizes protected expression that bears no resemblance to the conduct that has made that day infamous,” Melissa Fussell, Nassif’s federal defender, wrote to the justices. 

Related

• Mike Wendling, “,” BBC (Nov. 11)
• Barb Markoff et al, “” ABC News (Nov. 12)

Alito to remain on high court

• Jess Bravin, “,” The Wall Street Journal (Nov. 12)

Justice Samuel Alito has no plans to step down from the Supreme Court, people close to the justice said, tamping down speculation among legal activists that the 74-year-old jurist was readying to retire so that President-elect Donald Trump could fill his seat with a younger conservative.

“Despite what some people may think, this is a man who has never thought about this job from a political perspective,” said one person close to Alito. 

Ten Commandments school display held unconstitutional

• Emily Mae Czachor, “,” CBS News (Nov. 12)

A federal judge has temporarily blocked a Louisiana law that would have required public schools statewide  in their classrooms by Jan. 1. U.S. District Judge John W. deGravelles of Baton Rouge, who was appointed by former President Barack Obama, ruled Tuesday that the law violates the free exercise and establishment clauses of the First Amendment.

The ruling found the Louisiana law was "unconstitutional on its face and in every application, "prohibited Louisiana Attorney General Liz Murrill and defendants in this case from enforcing the mandate, and required them to notify public schools of the change. Tuesday's decision came alongside a preliminary injunction issued in a lawsuit brought by parents of Louisiana public school students, who are represented by a legal team from the American Civil Liberties Union, Americans United for Separation of Church and State and the Freedom From Religion Foundation.

Defendants include Louisiana Superintendent of Education Cade Brumley, along with members of the state education board and other local school boards, all of whom the attorney general represents.

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The fate of Infowars

• “,” First Amendment Watch (Nov. 12)

 Infowars broadcasts could end next week as he faces a court-ordered auction of his company’s assets to help pay the more than  he owes families of victims of the Sandy Hook Elementary School shooting.

Or maybe not.

Both opponents and supporters of the bombastic internet show and radio host have expressed interest in bidding on the Infowars properties he has built over the past 25 years. They include , an ally of Jones and Donald Trump, and anti-Jones progressive media groups. If Jones supporters buy the assets, he could end up staying on Infowars.

Up for sale are everything from Jones’ studio desk to Infowars’ name, video archive, social media accounts and product trademarks. Buyers can even purchase an armored truck and video cameras. For now, Jones’ personal social media, including his account on X, formerly known as Twitter, with 3 million followers, are not up for sale, but court proceedings on whether they should be auctioned are pending.

Forthcoming book on Angelo Herndon’s free speech struggles

• Brad Snyder, “,” W. W. Norton (Feb. 4, 2025)

The story of a young Black Communist Party organizer wrongly convicted of attempting to incite insurrection and the landmark case that made him a civil rights hero.

Decades before the impeachment of an American president for a similar offense, Angelo Herndon was charged under Georgia law with “attempting to incite insurrection” ― a crime punishable by death. In 1932, the eighteen-year-old Black Communist Party organizer was arrested and had his room illegally searched and his radical literature seized. Charged under an old slave insurrection statute, Herndon was convicted by an all-white jury and sentenced to eighteen to twenty years on a chain gang. “You Can’t Kill a Man Because of the Books He Reads” chronicles Herndon’s five-year quest for freedom during a time when Blacks, white liberals, and the radical left joined forces to define the nation’s commitment to civil rights and civil liberties.

Herndon’s champions included the young, Black Harvard Law School-educated attorney Benjamin J. Davis Jr.; the future historian C. Vann Woodward, who joined the interracial Herndon defense committee; the white-shoe New York lawyer Whitney North Seymour, who argued Herndon’s appeals; and literary friends Ralph Ellison, Langston Hughes, and Richard Wright. With their support, Herndon won his freedom and reinvented himself as a Harlem literary star until a dramatic fall from grace.

A legal odyssey of Herndon’s narrow escape from certain death because of his unpopular political beliefs, “You Can’t Kill a Man Because of the Books He Reads” explores Herndon’s journey from Alabama coal miner to Communist Party organizer to Harlem hero and beyond. Brad Snyder tells the stories of the diverse coalition of people who rallied to his cause and who twice appealed his case to the U.S. Supreme Court. They forced the Court to recognize free speech and peaceable assembly as essential rights in a democracy ― a landmark decision in 1930s America as well as today.

Forthcoming on free speech in authoritarian states

• Alexis Lerner, “,” University of Toronto Press (Feb. 15, 2025)

For more than a decade, Alexis Lerner combed the alleyways, underpasses, and public squares of cities once under communist rule, from Berlin in the west to Vladivostok in the east, recording thousands of cases of critical and satirical political street art and cataloging these artworks linguistically and thematically across space and time. Complemented by first-hand interviews with leading artists, activists, and politicians from across the region, “Post-Soviet Graffiti” provides theoretical reflection on public space as a site for political action, a semiotic reading of signs and symbols, and street art as a form of text.

The book answers the question of how we conceptualize avenues of dissent under authoritarian rule by showing how contemporary graffiti functions not only as a popular public aesthetic, but also as a mouthpiece of political sentiment, especially within the post-Soviet region and post-communist Europe. A purposefully anonymous and accessible artform, graffiti is an effective tool for circumventing censorship and expressing political views. This is especially true for marginalized populations and for those living in otherwise closed and censored states.

“Post-Soviet Graffiti” reveals that graffiti does not exist in a vacuum; rather, it can be read as a narrative about a place, the people who live there, and the things that matter to them.

New scholarly article on First Amendment and public accommodations after Obergefell

• Mark Satta, “,” SSRN (Sept. 17)

Does the holding in 303 Creative v. Elenis give public accommodations a constitutional right to refuse to provide expressive services for interracial couples’ weddings or for couples’ weddings in which one or both partners are disabled? As indicated by questions Justice Sotomayor raised about this issue during oral arguments, this is one of the troubling new legal questions created by the Supreme Court’s decision in 303 Creative. There the Court held that a Colorado web design business had a First Amendment free speech right to refuse to provide wedding website services for same-sex couples’ weddings, even though Colorado law protects against sexual orientation discrimination in public accommodations and Colorado concluded that the web design business’ refusal to provide such services violated its law. 

Understandably, both the Court’s conservative and liberal justices appear wary of extending the Court’s holding to provide a right to refuse service for other protected couples’ weddings. Yet, so far, advocates of the Court’s decision in 303 Creative have been unable to give a plausible explanation as to why it does not so extend. Often, when pressed, such advocates appeal to Justice Kennedy’s statement, made in dicta, in Obergefell v. Hodges that “[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.” My aim in this paper is to show why the arguments based on such appeals fail. 

All such arguments violate longstanding core aspects of either the Court’s First Amendment or public accommodation law precedent. And all such attempts undermine the dignity of LGBTQ people and subject them to an inferior class status. In light of this, I argue that the best way out is for the Court to narrow 303 Creative’s holding to cover only cases where a state is seeking to enforce its public accommodation law for the purposes the Court attributed to Colorado in 303 Creative. Because states virtually never seek to enforce their public accommodation laws for such reasons, 303 Creative would be unlikely to be controlling in future cases as a result.

Video Podcast on Backstage prosecution

• Elizabeth Nolan Brown, “Reason (Dec. 2024)

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More in the news

• Eugene Volokh, “,” The Volokh Conspiracy (Nov. 11)
• “,” Free Speech Center (Nov. 8)
• “VICTORY! Maine hospital backs down from defamation threat over teen’s criticism,” FIRE(Nov. 7)
• Stephanie Jablonsky, “FIRE reminds Michigan town that residents have the right to ‘concealed carry’ campaign literature in polling places,” FIRE(Nov. 6)

2024-2025 SCOTUS term: Free expression and related cases

Cases decided

•  (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
• (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)

Review granted

Pending petitions

Petitions denied

Last scheduled FAN

FAN 446: “Socratic free speech scholar Frederick Schauer dies at 78”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIREas part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIREor Mr. Collins.