from any source. Federal legislation in this area was enacted just prior to the date of this report as part of the 1970 Postal Reorganization Act. Public Law 91-375, 91st Cong., 2nd Sess., 39 U.S.C. Sections 3010-3011; 18 U.S.C. Sections

1735-1737.

The Commission considered two possible methods by which persons might be broadly insulated from unsolicited sexual advertisements which they do not wish to receive. One approach, contained in the 1970 Postal Reorganization Act, authorizes the Post Office to compile and maintain current lists of persons who have stated that they do not wish to receive certain defined materials, makes these lists available at cost to mailers of unsolicted advertisements, and prohibits sending the defined material to persons whose names appear on the Post Office lists. A second approach, described in detail in the Commission's Progress Report of July, 1969, would require all mailers of unsolicited advertisements falling within the statutory definition to place a label or code on the envelope. Mail patrons would then be authorized to direct local postal authorities not to deliver coded mail to their homes or offices.

In principle, the Commission favors the first of these approaches employed by Congress in the 1970 Postal Reorganization Act. The Commission takes this view because it believes that the primary burden of regulating the flow of potentially offensive unsolicited mail should appropriately fall upon the mailers of such materials and because of its reluctance to initiate required federal labelling of reading or viewing matter because of its sexual content. The Commission believes, however, that under current mail-order practices it may prove financially unfeasible for many smaller mailers to conform their mailing lists to those compiled by the Post Office. Use of computers to organize and search mailing lists will apparently be required by the new law; few, if any, small mailers utilize computers in this way today. If the current lists maintained by the Post Office came to contain a very large number of names -- perhaps one million or more computer search of these names, to discover any that were also present on a mailing list sought to be used by a mailer, might be prohibitively expensive. If such were the case, the Commission would believe the second possible approach to regulation to be more consistent with constitutional rights. This approach, however, might place serious burdens upon Post Office personnel. The Commission was not able to evaluate the practical significance of these burdens.

even a

In considering the definition appropriate to legislation regulating unsolicited sexual advertisements, the Commission examined a large range of unsolicited material which has given rise to complaints to the Post Office Department in recent years. A definition was then formulated which quite specifically describes material which has been deemed offensive by substantial numbers of postal patrons. This definition is set forth in the footnote. The Commission prefers this definitional provision to the less precise definitional provision in the 1970 Postal Reorganization Act.

23 Potentially offensive sexual advertisement means:

23

"(A) Any advertisement containing a pictorial representation or a detailed verbal description of uncovered human genitals or pubic areas, human sexual intercourse, masturbation, sodomy (i.e., bestiality or oral or anal intercourse), direct physical stimulation of unclothed genitals or flagellation or torture in the context of a sexual relationship; or

"(B) Any advertisement containing a pictorial representation or detailed verbal description of an artificial human penis or vagina or device primarily designed physically to stimulate genitals;

62

LEGISLATIVE RECOMMENDATIONS

D. DECLARATORY JUDGMENT LEGISLATION

The Commission recommends the enactment, in all jurisdictions which enact or retain provisions prohibiting the dissemination of sexual materials to adults or young persons, of legislation authorizing prosecutors to obtain declaratory judgments as to whether particular materials fall within existing legal prohibitions and appropriate injunctive relief. A model statute embodying this recommendation is presented in the Drafts of Proposed Statutes in Section III of this Part of the Commission Report. All but two of the Commissioners concur in the substance of this recommendation. The Commission recognizes that the particular details governing the institution and appeal of declaratory judgment actions will necessarily vary from State to State depending upon local jurisdictional and procedural provisions. The Commission is about evenly divided with regard to whether local prosecutors should have authority to institute such actions directly, or whether the approval of an official with state-wide jurisdiction, such as the State Attorney General, should be required before an action for declaratory judgment is instituted.

A declaratory judgment procedure such as the Commission recommends would permit prosecutors to proceed civilly, rather than through the criminal process, against suspected violations of obscenity prohibition. If such civil procedures are utilized, penalties would be imposed for violation of the law only with respect to conduct occurring after a civil declaration is obtained. The Commission believes this course of action to be appropriate whenever there is any existing doubt regarding the legal status of materials; where other alternatives are available, the criminal process should not ordinarily be invoked against persons who might have reasonably believed, in good faith, that the books or films they distributed were entitled to constitutional protection, for the threat of criminal sanctions might otherwise deter the free distributon of constitutionally protected material. The Commission's recommended legislation would not only make a declaratory judgment procedure available, but would require prosecutors to utilize this process instead of immediate criminal prosecution in all cases except those where the materials in issue are unquestionably within the applicable statutory definitional provisions.

WITHDRAWAL OF APPELLATE JURISDICTION

The Commission recommends against the adoption of any legislation which would limit or abolish the jurisdiction of the Supreme Court of the United States

(Footnote 23 Continued)

"Provided that, material otherwise within the definition of this subsection shall not be deemed to be a potentially offensive sexual advertisement if it constitutes only a small and insignificant part of the whole of a single catalogue, book, or other work, the remainder of which does not primarily treat sexual matters and, provided further, that the Postmaster General shall, from time to time, issue regulations of general applicability exempting certain types of material, or material addressed to certain categories of addressees, such as advertisements for works of fine art or solicitations of a medical, scientific, or other similar nature addressed to a specialized audience, from the definition of potentially offensive sexual advertisement contained in this subsection, where the purpose of this section does not call for application of the requirements of this

section."

24 Commissioners Morton A. Hill, S.J. and Winfrey C. Link.

or of other federal judges and courts in obscenity cases. Two Commissioners Favor such legislation, one deems is inappropriate for the Commission to take a position on this issue.

Proposals to limit federal judicial jurisdiction over obscenity cases arise from disagreement over resolution by federal judges of the question of obscenity in litigation. The Commission believes that these disagreements flow in largest measure from the vague and subjective character of the legal tests for obscenity utilized in the past; under existing legal definitions, courts are required to engage in subjective decision making and their results may well be contrary to the subjective analyses of many citizens. Adoption of specific and explicit definitional provisions in prohibitory and regulatory legislation, as the Commission recommends, should eliminate most or all serious disagreements over the application of these definitions and thus eliminate the major source of concern which has motivated proposals to limit federal judicial jurisdiction.

More fundamentally, the Commission believes that it would be exceedingly unwise to adopt the suggested proposal from the point of view of protection of constitutional rights. The Commission believes that disagreements with court results in particular obscenity cases, even if these disagreements are soundly based in some instances, are not sufficiently important to justify tampering with existing judicial institutions which are often required to protect constitutional rights. Experience shows that while courts may sometimes reverse convictions on a questionable basis, juries and lower courts also on occasion find guilt in cases involving books and films which are entitled to constitutional protection, and state appeals courts often uphold such findings. These violations of First Amendment rights would go uncorrected if such decisions could not be reversed at a higher court level.

The Commission also recommends against the creation of a precedent in the obscenity area for the elimination by Congress of federal judicial jurisdiction in other areas whenever a vocal majority or minority of citizens disagrees strongly with the results of the exercise of that jurisdiction. Freedom in many vital areas frequently depends upon the ability of the judiciary to follow the Constitution rather than strong popular sentiment. The problem of obscenity, in the absence of any indication that sexual materials cause societal harm, is not an appropriate social phenomenon upon which to base a precedent for removing federal judicial jurisdiction to protect fundamental rights guaranteed by the Bill of Rights.

III.

Drafts of
Proposed Legislation

A. RECOMMENDED FEDERAL LEGISLATION

REPEAL OF EXISTING LAWS

The following federal statutes prohibiting the consensual distribution of “obscene" material to adults are hereby repealed: 18 United States Code, Sections 1461, 1462, 1464, 1465; 19 United States Code, Section 1305; 39 United States Code, Section 3006.

The following statutes prohibiting the distribution of obscene material to adults are hereby repealed:

1

[cite appropriate state statutes].'

The state statutes which appear to the Commission presently to impose prohibitions upon the consensual distribution of sexual material to adults are the following: Ala. Code tit. 14, Section 374(4)(1958); Alaska Stat. Section 11.40.160 (1962); Ariz. Reg. Stat. Ann. Section 13-532 (1956); Ark. Stat. Ann. Section 41-2701, 2703, (1947); Cal. Penal Code Section 311.2 (West 1969); Colo. Rev. Stat. Ann. Section 40-9-16 (1963); Conn. Gen. Stat. Ann. Section 53-244 (1958); Del. Code Ann. tit. 11, Section 711 (1953); Fla. Stat. Ann. Section 847.011 (1965); Ga. Code Ann. Section 26-2101 (1969); Hawaii Rev. Stat. Section 727-8 (1968); Idaho Code Ann. Section 18-4101 (3, 4, 5), 4102 (1947); Ill. Ann. Stat. Ch. 38, Section 11-20 (Smith Hurd 1954); Ind. Ann. Stat. Section 9-601(Fifth); Section 9-604(b); Section 10-2803 (1956); Iowa Code Ann. Section 725.3-6 (1950); Kan. Stat. Ann. Sections 21-1102, 1115, 1118 (1964) Ky. Rev. Stat. Section 436.101 (1962); La. Rev. Stat. Section 14.106 (1950); Me. Rev. Stat. Ann. tit. 17, Sections 2901, 2904, 2905 (1964); Md. Ann. Code Art. 27, Section 418 (1957); Mass. Ann. Laws Ch. 272, Section 28A, B, Section 31, 32 (1932); Mich. Comt. Laws Section 750.343a-b (1968); Minn. Stat. Ann. Section 617.241; Section 617.26 (1964); Miss. Code Ann. Sections 2280, 2286, 2288, 2674.03 (1942); Mo. Ann. Stat. Sections 563.270, .280, .290 (1953); Mont. Rev. Codes Ann. Sections 94.3601, .3602 (1969); Neb. Rev. Stat. Sections 28.921, .922 (1964); Nev. Rev. Stat. Section 201.250 (1969); N.H. Rev. Stat. Ann. Section 571A (1955); N.J. Rev. Stat. Section 2A: 115-2 (1951); N. Y. Penal Law Sections 235.00, .05, .10, .15 (McKinney's 1967); N.C. Gen. Stat. Section 14-189. 189.1, .2, 14190 (1969); N.D. Cent. Code Section 12-21-09 (1960); Ohio Rev. Code Ann. Sections 2905.34, .342(A), .36, .40, .41 (Page 1953); Okla. Stat. Ann. tit. 21, Sections 1021(3)(4), 1040.8, .13 (1958); Ore. Rev. Stat. Section 167.151 (1969); Pa. Stat. Ann. tit. 18 Sections 4524, 4528 (1963); R.I. Gen. Laws Ann. Sections 11-31-1, 3, 4 (1956); S.C. Code Ann.

SECTION 2. SALE AND DISPLAY OF EXPLICIT SEXUAL MATERIAL TO YOUNG PERSONS

(a) Purpose. - It is the purpose of this section to regulate the direct commercial distribution of certain explicit sexual materials to young persons in order to aid parents in supervising and controlling the access of children to such material. The legislature finds that whatever social value such material may have for young persons can adequately be served by its availability to young persons through their parents.

(b) Offenses Defined.

A person is guilty of a misdemeanor if he (i) knowingly disseminates explicit sexual material, as hereinafter defined, to young persons or

(ii) if he knowingly displays explicit sexual material for sale in an area to which young persons have access, unless such material has artistic, literary, historical, scientific, medical, educational or other similar social value for adults. Whoever violates the provisions of this section shall be

(c) Penalty. liable to [left to state option]. (d) Definitions.

For the purposes of this section:

(i) "Young person" means any person less than years of age; (ii) "Explicit sexual material" means any pictorial or three dimensional material including, but not limited to, books, magazines, films, photographs and statuary, which is made up in whole or in dominant part of depictions of human sexual intercourse, masturbation, sodomy (i.e., bestiality or oral or anal intercourse), direct physical stimulation of unclothed genitals, or flagellation or torture in the context of a sexual relationship, or which emphasizes the depiction of uncovered adult human genitals; provided however, that works of art or of anthropological significance shall not be deemed to be within the foregoing defi

nition.

(iii) “Disseminate" means to sell, lease or exhibit commercially and, in the case of an exhibition, to sell an admission ticket or pass, or to admit persons who have bought such a ticket or pass to the premises whereon an exhibition is presented. (iv) "Display for sale" in an area to which young persons have access means display of material for sale so that young persons may see portions of the material constituting explicit sexual pictorial material.

(v) An offense is committed "knowingly" only if (A) the defendant knew that the recipient of material was a young person, as herein defined, or had grounds to believe it probable that the recipient was a young person as herein defined and failed to make reasonable inquiries to determine the age of the recipient; and if (B) (1) the defendant was aware of contents of the material clearly within the definition of explicit sexual material contained in part (ii) of this subsection, or (2) had reason to know that the contents of the material were

(Footnote 1 Continued)

Section 16-414.1 (1962); S.D. Compiled Laws Ann. Sections 22-24-11, 12 (1967); Tenn. Code Ann. Section 39-3003 (1955); Tex. Penal Code Art. 527(1) (1948); Utah Code Ann. Section 76-39-5(1-5) (1953); Va. Code Ann. Sections 18.1-228, 229, 230 (1950); Wash. Rev. Code Sections 9.68.010, .020 (1961); W. Va. Code Ann. Sec. 61-8-11 (1966); Wis. Stat. Sections 944.21, .22, .23 (1958); Wyo. Stat. Ann. Sections 6-103, 104 (1957); D.C. Code Ann. Section 22-2001 (Supp. III, 1970).