Preface

Congress, in Public Law 90-100, found the traffic in obscenity and pornography to be "a matter of national concern." The Federal Government was deemed to have a "responsibility to investigate the gravity of this situation and to determine whether such materials are harmful to the public, and particularly to minors, and whether more effective methods should be devised to control the transmission of such materials." To this end, the Congress established an advisory commission whose purpose was "after a thorough study which shall include a study of the causal relationship of such materials to antisocial behavior, to recommend advisable, appropriate, effective, and constitutional means to deal effectively with such traffic in obscenity and pornography."

Congress assigned four specific tasks:

"(1) with the aid of leading constitutional law authorities, to analyze the laws pertaining to the control of obscenity and pornography; and to evaluate and recommend definitions of obscenity and pornography;

"(2) to ascertain the methods employed in the distribution of obscene and pornographic materials and to explore the nature and volume of traffic in such materials;

"(3) to study the effect of obscenity and pornography upon the public, and particularly minors, and its relationship to crime and other antisocial behavior; and

"(4) to recommend such legislative, administrative, or other advisable and appropriate action as the Commission deems necessary to regulate effectively the flow of such traffic, without in any way interfering with constitutional rights."

Public Law 90-100 became law in October, 1967, and the President appointed members to the Commission in January, 1968.1 Funds were appropriated for

1

Upon the resignation from the Commission of Kenneth B. Keating to accept appointment as Ambassador to India, the President appointed Charles H. Keating, Jr., as his replacement in June, 1969. Commissioner Charles H. Keating, Jr., chose not to participate in the discussions and deliberations which led to the formulation of this Report and its recommendations. His views appear in his separate statement.

the Commission's operation in July, 1968; at the same time the tenure of the Commission was extended to provide it the originally intended two years for its studies.

The Commission held its first meeting in July, 1968. It gave exploratory consideration to the various areas of its responsibilities, making use of experts who presented preliminary analyses of the available information about law, traffic and effects.

The Commission elected William B. Lockhart as chairman and Frederick H. Wagman as vice-chairman. The Commission then organized itself into four working panels: 1) Legal; 2) Traffic and Distribution; 3) Effects; and 4) Positive Approaches. It appointed a committee to recommend a director and a general counsel for the Commission's staff.2 Upon the recommendation of this committee, the Executive Director and General Counsel were appointed by the Commission effective the last week in August, 1968. The remainder of the staff was appointed by the Executive Director; the nucleus of the staff was assembled in September, 1968.

The Commission fully subscribed from the beginning to the Congressional directive to make recommendations only after thorough study. To implement this approach, it was determined that confidentiality by Commission members should be maintained. This was felt to be necessary to encourage maximum exploration and free discussion of opinions, data and new ideas at meetings of the Commissioners, to enhance open and unbiased investigations in sensitive areas, to avoid public misinterpretations of research data and to prevent premature conclusions. Moreover, the Commissioners felt it was important, in order to avoid confusion as to the activities of the Commission, to have but one spokesman prior to the completion of its Report. Commissioner Charles H. Keating, Jr., a replacement for one of the original Commissioners, 3 did not subscribe to this decision after his appointment.

Because its initial survey of available information relating to the various tasks assigned by Congress amply demonstrated the insufficiency of existing factual evidence as a basis for recommendations, the Commission initiated a program of research designed to provide empirical information relevant to its tasks. The responsibility for the details of the research program was delegated to the four working panels which reported to the Commission on their progress and direction from time to time. The Commission's energies were devoted at the beginning principally to the design and implementation of the research program, at a later point to the assimilation and integration of the results of the research, and finally to the discussion of alternatives and the making of decisions regarding recommendations.

Some members of the Commission suggested that public hearings be held at the beginning of the Commission's life. The Commission concluded, however, that in the first stage of its work public hearings would not be a likely source of accurate data or a wise expenditure of its limited resources. Approximately 100 national organizations were invited to express their views on the problems of 2 The Committee consisted of the Chairman and Vice-Chairman and Commissioners Edward D. Greenwood, Joseph T. Klapper, Otto N. Larsen and Irving Lehrman.

obscenity and pornography by submitting written statements, and views were also solicited from those involved in law enforcement, from the legal profession generally, and from constitutional law experts. The Commission left open the possibility of holding public hearings at a later date when it would be possible to invite witnesses to focus on particular issues and proposals as those evolved from the Commission's studies and discussions. Public hearings were held in Los Angeles, California, on May 4 and 5, 1970, and in Washington, D. C. on May 12 and 13, 1970. Fifty-five persons, representing law enforcement agencies, courts, government at many levels, civic organizations, writers, publishers, distributors, film producers, exhibitors, actors, librarians, teachers, youth organizations, and parents and other interested groups were invited to appear before the Commission. Thirty-one of these persons accepted the Commission's invitation. In addition, the Commission heard statements from numerous private citizens who attended the hearings. A broad spectrum of views was presented to the Commission through these hearings. Because of financial limitations, the transcript of the Commission's hearings will not be printed but may be found in the Archives of the United

States.

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Material may be deemed "obscene" because of a variety of contents: ligious, political, sexual, scatological, violent, etc. The Commission has limited its concern to sexual obscenity, including sadomasochistic material, because the legislative history indicated this as the focus of congressional concern as reflected by the linking of obscenity with pornography in the Act creating the Commission. The application of obscenity laws has been directed in recent times almost exclusively to sexual obscenity; indeed, court decisions regarding permissible legal definitions of the term "obscene" have appeared in recent years to delimit its application to such sexual obscenity. Thus, the Commission's inquiry was directed toward a wide range of explicit sexual depictions in pictorial and textual media."

Just as obscenity may involve a variety of contents and judgments, so also may "antisocial" behavior and moral character. A declining concern with established religions, new questions as to the wisdom and morality of war, changes in attitudes toward races and minorities, and conflicts regarding the responsibility of

The area of the Commission's study has been marked by enormous confusion over terminology. Some people equate "obscenity" with "pornography" and apply both terms to any type of explicit sexual materials. Other persons intend differences of various degrees in their use of these terms. In the Commission's Report, the terms "obscene" or "obscenity" are used solely to refer to the legal concept of prohibited sexual materials. The term "pornography" is not used at all in a descriptive context because it appears to have no legal significance and because it most often denotes subjective disapproval of certain materials, rather than their content or effect. The Report uses the phrases "explicit sexual materials," "sexually oriented materials, erotica, or some variant thereof to refer to the subject matter of the Commission's investigations; the word "materials" in this context is meant to refer to the entire range of depictions or descriptions in both textual and pictorial form - primarily books, magazines, photographs, films, sound recordings, statuary, and sex "devices."

5 The Commission did not investigate directly the phenomenon of "live" sex shows, such as simulated or actual sexual activity on the stage, or before an audience. These activities are governed most often by local laws regulating actual sexual conduct, such as prohibitions upon indecent exposure, disorderly conduct, fornication, or sodomy. The terms of such prohibitions vary widely from locality to locality and the reasons for them may diverge substantially from the concerns underlying obscenity prohibitions. The Commission, therefore, did not deem recommendations in these various areas of sexual conduct to be within its primary assignment.

the state to the individual and the individual to the state may all be considered to represent changes in the moral fiber of the nation. To some, these phenomena are considered to be signs of corroding moral decay; to others, signs of change and progress. It was impossible during the brief life of the Commission to obtain. significant data on the effects of the exposure to pornography on nonsexual moral attitudes. Consequently, the Commission has focused on that type of antisocial behavior which tends to be more directly related to sex. This includes premarital intercourse, sex crimes, illegitimacy, and similar items.

Discussions of obscenity and pornography in the past have often been devoid of fact. Popular rhetoric has often contained a variety of estimates of the size of the "smut" industry and assertions regarding the consequences of the existence of these materials and exposure to them. Many of these statements, however, have had little anchoring in objective evidence. Within the limits of its time and resources, the Commission has sought, through staff and contract research, to broaden the factual basis for future continued discussion. The Commission is aware that not all issues of concern have been completely researched nor all questions answered. It also recognizes that the interpretations of a set of “facts" in arriving at policy implications may differ even among men of good will. Nevertheless, the Commission is convinced that on most issues regarding obscenity and pornography the discussion can be informed by important and often new facts. It presents its Report, hopeful that it will contribute to this discussion at a new level. Since it may be anticipated that in any controversial area some of the research will be questioned as to method and the validity and reliability of the results, the Commission hopes that responsible scientific organizations will carefully scrutinize these studies and that new and continuing research will result.

The Commission's Report consists of this preface, an overview of the findings of the Commission, a set of nonlegislative and legislative recommendations, and the full reports of the four Panels.

The Commission will also publish a series of Technical Reports which will make available the details of the data developed by the Commission, its staff, and those individuals and groups who contributed to its research program.