In Swearingen v. United States, 161 U.S. 446 (1896), the Supreme Court reversed the conviction of a Kansas newspaper publisher for mailing a newspaper with an allegedly obscene article. This case, while ostensibly about obscenity, reflected the use of the Comstock Act of 1873 to squelch political opponents.

Hard-hitting politics were common in the Midwest during the 1890s as populist and agrarian reformers fought to impose maximum freight rates on the railroads to benefit farmers. Publisher Dan K. Swearingen, a populist, attacked a foe in the article that led to his legal troubles. This “red-headed mental and physical bastard,” Swearingen wrote, “is known to every decent man, woman, and child in the community as a liar, perjurer, and slanderer, who would sell a mother’s honor with less hesitancy and for much less silver than Judas betrayed the Saviour.” He was convicted of violating the Comstock Act, which prohibited the mailing of “every obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, letter writing, print, or other publication of an indecent character.”

Writing for the majority in the 5-4 decision, Justice George Shiras Jr. determined the article was not obscene. The article’s “language is exceedingly coarse and vulgar, and, as applied to an individual person, plainly libelous.” But the majority failed to see “anything of a lewd, lascivious, and obscene” that was “calculated to corrupt and debauch the minds and morals of those into whose hands it might fall.” Crude language and blasphemous words or phrases were not necessarily obscene. The Court concluded that the words “obscene, lewd or lascivious” in the statute referred to immorality and “sexual impurity” and described a single offense, not different and distinct offenses. The dissenters, including Justice John Marshall Harlan I, did not write an opinion.

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