IV Law and Law Enforcement' A. EXISTING OBSCENITY LEGISLATION AND COST OF ENFORCEMENT 2 FEDERAL STATUTES There are presently five federal laws which prohibit distributions of "obscene" materials in the United States. One prohibits any mailing of such material (18 U.S.C. section 1461); another prohibits the importation of obscene materials into the United States (19 U.S.C. section 1305); another prohibits the broadcast of obscenity (18 U.S.C. section 1464); and two laws prohibit the interstate transportation of obscene materials or the use of common carriers to transport such materials (18 U.S.C. sections 1462 and 1465).3 In addition, the 1968 federal Anti-Pandering Act (39 U.S.C. section 30084) authorizes postal patrons to request no further mailings of unsolicited advertisements from mailers who have previously sent them advertisements which they deem sexually offensive in their sole judgment, and it further prohibits mailers from ignoring such requests. There is no present federal statute specifically regulating the distribution of sexual materials to young persons. Five federal agencies are responsible for the enforcement of the foregoing statutes. The Post Office Department, the Customs Bureau, and the Federal Communications Commission investigate violations within their jurisdictions. The F.B.I. investigates violations of the statutes dealing with transportation and common carriers. The Department of Justice is responsible for prosecution or other judicial enforcement. 1 The Report of the Legal Panel of the Commission provides a more thorough discussion and documentation of this overview. 2 A description of the history of obscenity prohibitions is set forth in the Legal Panel Report. 3 Two other statutes impose supplementary regulations. 39 U.S.C. section 3006 (numbered 39 U.S.C. section 4006 prior to the 1970 Postal Reorganization Act) authorizes the Postmaster General to block incoming mail to persons using the mails to solicit remittances for obscene matter. 47 U.S.C. section 503(b)(E) imposes civil penalties upon prohibited broadcasts of obscene matter. 4 This Act was numbered 39 U.S.C. section 4009 prior to the 1970 Postal Reorganization Act. The cost to the federal government of enforcing the five federal statutes generally prohibiting the distribution of obscene materials appears to be at least $3 to $5 million per year. Enforcement of the Anti-Pandering Act has cost the Post Office about an additional $1 million per year.5 STATE STATUTES Forty-eight of the States have statutes which generally prohibit the distribution of "obscene" materials. In addition, the statutes of 41 states contain some type of special prohibition regarding the distribution of sexual materials to minors. The cost of enforcing these statutes cannot be determined with any precision. The total of all state and local enforcement activity, however, far exceeds federal enforcement in terms of number of arrests and prosecutions, so that the aggregate cost of state law enforcement for all jurisdictions is, conserv→ atively, $5 to $10 million per year. More than 90% of all state and local prosecutions recently have involved distribution to adults rather than enforcement of juvenile statutes. FEDERAL AND STATE STATUTORY DEFINITIONS OF "OBSCENITY" None of the federal statutes generally prohibiting the distribution of "obscene" material defines that term. State statutes generally prohibiting the distribution of "obscene" material either do not define the term or verbally incorporate the constitutional standard established by the Supreme Court and discussed below. State juvenile statutes frequently incorporate relatively specific descriptive definitions of material prohibited for minors, qualified by subjective standards adapted from the constitutional standard for adults. B. THE CONSTITUTIONAL BASIS FOR PROHIBITIONS UPON THE DISSEMINATION OF EXPLICIT SEXUAL MATERIALS For many years the Supreme Court assumed, without deciding, that laws generally prohibiting dissemination of obscenity were consistent with the free speech guarantees of the Constitution. In 1957, in the case of Roth v. United States, the Court held that such laws were constitutional, but it required that they utilize a narrowly restrictive standard of what is "obscene." 5 The cost to the Post Office Department in fiscal 1968 is estimated by that department as approximately $1 million $.75 million allocated to the Postal Inspection Service, which attempts to detect violations, and $.25 million allocated to the General Counsel's Office. The cost to the Customs Bureau in fiscal 1968 is estimated by that Bureau at approximately $1 million. Neither the F.B.I. nor the Justice Department supplied cost figures to the Commission. Other data supplied by the Justice Department indicate significant enforcement activity on the part of the F.B.I., Justice, and several United States Attorneys' offices throughout the country of the statutes within their jurisdictions. The Commission believes that these costs would aggregate at least $1 million per year. To the foregoing total of about $3 million must be added the costs to federal courts and the cost to the Federal Communications Commission. In addition, obscenity enforcement activities on the part of at least two of the Departments - Post Office and Justice – have increased substantially since fiscal 1968. 6 Several of these statutes contain narrowly drawn exemption provisions such as exemptions for persons distributing materials in the course of scientific or artistic pursuits. In upholding the constitutionality of obscenity prohibitions, the Roth decision did not rely upon findings or conclusions regarding the effect of sexual materials upon persons who are exposed to them. Rather, the fundamental premise of Roth was that "obscene" materials are not entitled to the protections accorded to "speech" by the First and Fourteenth Amendments to the Constitution. The Court based this conclusion upon its findings (1) that the Framers of the Bill of Rights did not intend the free speech guarantee of the First Amendment to apply to all utterances and writings, (2) that "obscene" speech -- like libel, profanity and blasphemy -- was not intended to be protected by the Amendment, and (3) that a universal consensus had existed for many years that the distribution of obscenity should be legally prohibited. In 1969, in Stanley v. Georgia, the Supreme Court modified the premise of the Roth decision to some extent by holding that the constitutional guarantee of free speech protects the right of the individual to read or view concededly "obscene" material in his own home. Some lower federal courts have held that the Stanley decision gives constitutional protection to some distributions of obscenity, as well as to its private possession. Specifically, courts have held unconstitutional the federal importation prohibition as applied to the importation of obscene material for private use, the federal mail prohibition as applied to the mailing of obscene material to persons who request it, and a state prohibition applied to films exhibited to adults at theaters to which minors were not admitted. These courts have held that the constitutional right to possess obscene materials established in Stanley implies a correlative right for adults to acquire such materials for their own use or to view them without forcing them upon others. Other lower federal courts have not applied the Stanley decision to these situations. The Supreme Court has not yet explicitly passed upon these questions, but has set for argument in the 1970 term three cases raising these issues. C. CONSTITUTIONAL LIMITATIONS UPON THE DEFINITION OF "OBSCENE" ADULT OBSCENITY STATUTES Although upholding the constitutionality of broad prohibitions upon the dissemination of obscene materials, the Roth decision imposed a narrow standard for defining what is "obscene" under such prohibitions. Subsequent decisions have narrowed the permissible test even further. The prevailing view today in the Supreme Court of the United States, the lower federal courts and the courts of the States is that three criteria must all be met before the distribution of material may be generally prohibited for all persons, including adults, on the ground that it is "obscene." These criteria are: (1) the dominant theme of the material, taken as a whole, must appeal to a "prurient" interest in sex; (2) the material must be "patently offensive" because it affronts "contemporary community standards" regarding the depiction of sexual matters; and (3) the material must lack "redeeming social value." All three criteria must coalesce before material may be deemed "obscene" for adults. The requirement that the material appeal to a "prurient" interest in sex is not clear in meaning but appears to refer primarily to material which is sexually arousing in dominant part. Material must appeal to the prurient interest of the "average" person, unless it is designed for and distributed to a particular group, in which case it is the interests of the members of that group which are relevant. The Supreme Court has never settled the question whether the "community” by whose standards "offensiveness" is to be determined is a "national" community or whether it is the State or locality where the distribution occurs. Whatever the relevant community, a substantial consensus that particular material is offensive is apparently required to violate the community's "standard." There is some disagreement in the Supreme Court over the precise role played by the “social value” criterion. All the Justices have agreed that social value is relevant to obscenity determinations. A plurality (not a majority) has held that unless material is "utterly" without redeeming social value it may not be held to be obscene; a minority of Justices would permit a small degree of social value to be outweighed by prurience and offensiveness. Nor has the Court authoritatively defined what values are redeeming "social" values, although it has suggested that these may include entertainment values as well as the more firmly established scientific, literary, artistic and educational values. Finally, the Court permits the manner of distribution of material to be taken into account in determining the application of the three criteria, at least where the material itself is close to the line of legality. The application of these three Roth criteria to specific materials requires a great deal of subjective judgment because the criteria refer to emotional, aesthetic and intellectual responses to the material rather than to descriptions of its content. As noted above, the precise meaning of the criteria is also unclear. This subjectivity and vagueness produces enormous uncertainty about what is "obscene" among law enforcement officials, courts, juries and the general public. It is impossible for a publisher, distributor, retailer or exhibitor to know in advance whether he will be charged with a criminal offense for distributing a particular work, since his understanding of the three tests and their application to his work may differ from that of the police, prosecutor, court or jury. This uncertainty and consequent fear of prosecution may strongly influence persons not to distribute new works which are entitled to constitutional protection and thus have a damaging effect upon free speech. These definitional problems are also cited by law enforcement officials at all levels as their chief difficulty in enforcing existing obscenity laws. There is, therefore, almost universal dissatisfaction with present law. A series of decisions of the Supreme Court, generally rendered without opinion, has given an exceedingly narrow scope of actual application to the constitutionally required three-part standard for adult legislation. These decisions leave it questionable whether any verbal or textual materials whatever may presently be deemed "obscene" for adults under the constitutional standard and suggest that only the most graphic pictorial depictions of actual sexual activity may fall within it. Present law for adults is therefore largely ineffective. The results of empirical research regarding the application of the three constitutional criteria confirm the difficulties of application as well as their exceedingly narrow scope. Several studies have found that "arousingness" and "offensiveness" are independent dimensions when applied to sexual materials; that is, material that is offensive may or may not be arousing, and material that is arousing may or may not be offensive. Only a very restricted range of material seems to be capable of meeting both of these criteria for most people. Further, there is very little consensus among people regarding either the "arousingness" or the "offensiveness" of a given sexual depiction. A wide distribution of judgments in these two areas occurs, for example, for depictions of female nudity with genitals exposed, for explicit depictions of heterosexual sexual intercourse, and for graphic depictions of oral-genital intercourse. In addition, judgments differ among different groups: Males as a group differ from females as a group in their judgments of both "offensiveness" and "arousingness"; the young differ from the old; the college-educated differ from those with only a high school education; frequent church attenders differ from less frequent church attenders. An additional and very significant limiting factor is introduced by the criterion of social value. In the national survey of American public opinion sponsored by the Commission, substantial portions of the population reported effects which might be deemed socially valuable from even the most explicit sexual materials. For example, about 60% of a representative sample of adult American men felt that looking or reading such materials would provide information about sex and about 40% of the sample reported that such an effect had occurred for himself or some one he personally knew. About 60% of these men felt that looking at or reading explicit sexual materials provided entertainment and almost 50% reported this effect upon himself or someone he personally knew. Half of these men felt that looking at or reading explicit sexual materials can improve sex relations of some married couples, and about a quarter of the sample reported such an effect on themselves or on someone they knew personally. Fewer women reported such effects, but 35%, 24% and 21% reported, respectively, information, entertainment, and improved sexual relations in themselves or someone they personally knew as a result of looking at or reading very explicit sexual materials. As previously indicated, two experimental studies found that a substantial number of married couples reported more agreeable and enhanced marital communication and an increased willingness to discuss sexual matters with each other after exposure to erotic stimuli. In pursuit of its mandate from Congress to recommend definitions of obscenity which are consistent with constitutional rights, the Commission considered drafting a more satisfactory definition of "obscene" for inclusion in adult obscenity prohibitions, should such prohibitions appear socially warranted. To be satisfactory from the point of view of its enforcement and application, such a definition would have to describe the material to be proscribed with a high degree of objectivity and specificity, so that those subject to the law could know in advance what materials were prohibited and so that judicial decisions would not be based upon the subjective reactions of particular judges or jurors. In light of the empirical data, described above, showing both the lack of consensus among adults as to what is both arousing and offensive and the values attributed by substantial numbers of adults to even the most explicit sexual materials, the construction of such a definition for adults within constitutional limits would be extremely difficult. In any event, the Commission, as developed in its legislative recommendations set forth later in this Report, does not believe that a sufficient |