II.

Legislative
Recommendations

On the basis of its findings, the Commission makes the following legislative recommendations. The disagreements of particular Commissioners with aspects of the Commission's legislative recommendations are noted below, where the recommendations are discussed in detail. Commissioners Link, Hill, and Keating have filed a joint dissenting statement. In addition, Commissioners Keating and Link have submitted separate remarks. Commissioners Larsen and Wolfgang have filed statements explaining their dissent from certain Commission recommendations. A number of other Commissioners have filed short separate statements.1

In general outline, the Commission recommends that federal, state, and local legislation should not seek to interfere with the right of adults who wish to do so to read, obtain, or view explicit sexual materials. On the other hand, we recommend legislative regulations upon the sale of sexual materials to young persons who do not have the consent of their parents, and we also recommend legislation to protect persons from having sexual materials thrust upon them without their consent through the mails or through open public display.

The Commission's specific legislative recommendations and the reasons underlying these recommendations are as follows:

The Commission recommends that federal, state, and local legislation prohibiting the sale, exhibition, or distribution of sexual materials to consenting adults should be repealed. Twelve of the 17 participating members of the Commission

1

Commissioners Joseph T. Klapper, Morris A. Lipton, G. William Jones, Edward D. Greenwood and Irving

Lehrman.

2

The term explicit sexual materials is used here and elsewhere in these recommendations to refer to the entire range of explicit sexual depictions or descriptions in books, magazines, photographs, films, statuary, and other media. It includes the most explicit depictions, or what is often referred to as "hard-core pornography." The term, however, refers only to sexual materials, and not to "live" sex shows, such as strip tease or on-stage sexual activity or simulated sexual activity. The Commission did not study this phenomenon in detail and makes no recommendations in this area. See Preface to this Report.

3

Commissioner Charles H. Keating, Jr., chose not to participate in the deliberation and formulation of any of the Commission's recommendations.

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join in this recommendation. Two additional Commissioners subscribe to the bulk of the Commission's Report, but do not believe that the evidence presented at this time is sufficient to warrant the repeal of all prohibitions upon what adults may obtain. Three Commissioners dissent from the recommendation to repeal adult legislation and would retain existing laws prohibiting the dissemination of obscene materials to adults."

The Commission believes that there is no warrant for continued governmental interference with the full freedom of adults to read, obtain or view whatever such material they wish. Our conclusion is based upon the following consid

erations:

1. Extensive empirical investigation, both by the Commission and by others, provides no evidence that exposure to or use of explicit sexual materials play a significant role in the causation of social or individual harms such as crime, delinquency, sexual or nonsexual deviancy or severe emotional disturbances. This research and its results are described in detail in the Report of the Effects Panel of the Commission and are summarized above in the Overview of Commission findings, pp. 23. Empirical investigation thus supports the opinion of a substantial majority of persons professionally engaged in the treatment of deviancy, delinquency and antisocial behavior, that exposure to sexually explicit materials has no harmful causal role in these areas.

Studies show that a number of factors, such as disorganized family relationships and unfavorable peer influences, are intimately related to harmful sexual behavior or adverse character development. Exposure to sexually explicit materials, however, cannot be counted as among these determinative factors. Despite the existence of widespread legal prohibitions upon the dissemination of such materials, exposure to them appears to be a usual and harmless part of the process of growing up in our society and a frequent and nondamaging occurrence among adults. Indeed, a few Commission studies indicate that a possible distinction between sexual offenders and other people, with regard to experience with explicit sexual materials, is that sex offenders have seen markedly less of such materials while maturing.

This is not to say that exposure to explicit sexual materials has no effect upon human behavior. A prominent effect of exposure to sexual materials is that persons tend to talk more about sex as a result of seeing such materials. In addition, many persons become temporarily sexually aroused upon viewing explicit sexual materials and the frequency of their sexual activity may, in consequence, increase for short periods. Such behavior, however, is the type of sexual activity already established as usual activity for the particular individual.

4

Commissioner Edward E. Elson joins in this recommendation only on the understanding that there will be prior enactment of legislation prohibiting the public display of offensive sexual materials both pictorial and verbal, that there will be prior enactment of legislation restricting the sales of explicit sexual materials to juveniles, and that there be prior public and governmental support for the Commission's nonlegislative recommendations before such repeal is enacted.

5 Commissioners Irving Lehrman and Cathryn A. Spelts.

6 Commissioners Morton A. Hill, S.J., Winfrey C. Link, and Thomas C. Lynch.

In sum, empirical research designed to clarify the question has found no evidence to date that exposure to explicit sexual materials plays a significant role in the causation of delinquent or criminal behavior among youth or adults.

2. On the positive side, explicit sexual materials are sought as a source of entertainment and information by substantial numbers of American adults. At times, these materials also appear to serve to increase and facilitate constructive communication about sexual matters within marriage. The most frequent purchaser of explicit sexual materials is a college-educated, married male, in his thirties or forties, who is of above average socio-economic status. Even where materials are legally available to them, young adults and older adolescents do not constitute an important portion of the purchasers of such materials.

3. Society's attempts to legislate for adults in the area of obscenity have not been successful. Present laws prohibiting the consensual sale or distribution of explicit sexual materials to adults are extremely unsatisfactory in their practical application. The Constitution permits material to be deemed "obscene" for adults only if, as a whole, it appeals to the "prurient" interest of the average person, is "patently offensive" in light of "community standards," and lacks "redeeming social value." These vague and highly subjective aesthetic, psychological and moral tests do not provide meaningful guidance for law enforcement officials, juries or courts. As a result, law is inconsistently and sometimes erroneously applied and the distinctions made by courts between prohibited and permissible materials often appear indefensible. Errors in the application of the law and uncertainty about its scope also cause interference with the communication of constitutionally protected materials.

4. Public opinion in America does not support the imposition of legal prohibitions upon the right of adults to read or see explicit sexual materials. While a minority of Americans favors such prohibitions, a majority of the American people presently are of the view that adults should be legally able to read or see explicit sexual materials if they wish to do so.

5. The lack of consensus among Americans concerning whether explicit sexual materials should be available to adults in our society, and the significant number of adults who wish to have access to such materials, pose serious problems regarding the enforcement of legal prohibitions upon adults, even aside from the vagueness and subjectivity of present law. Consistent enforcement of even the clearest prohibitions upon consensual adult exposure to explicit sexual materials would require the expenditure of considerable law enforcement resources. In the absence of a persuasive demonstration of damage flowing from consensual exposure to such materials, there seems no justification for thus adding to the overwhelming tasks already placed upon the law enforcement system. Inconsistent enforcement of prohibitions, on the other hand, invites discriminatory action based upon considerations not directly relevant to the policy of the law. The latter alternative also breeds public disrespect for the legal process.

6.

The foregoing considerations take on added significance because of the fact that adult obscenity laws deal in the realm of speech and communication. Americans deeply value the right of each individual to determine for himself what books he wishes to read and what pictures or films he wishes to see. Our tradi8 See footnote 4 in the Overview of Effects.

tions of free speech and press also value and protect the right of writers, publishers, and booksellers to serve the diverse interests of the public. The spirit and letter of our Constitution tell us that government should not seek to interfere with these rights unless a clear threat of harm makes that course imperative. Moreover, the possibility of the misuse of general obscenity statutes prohibiting distributions of books and films to adults constitutes a continuing threat to the free communication of ideas among Americans - one of the most important foundations of our liberties.

7. In reaching its recommendation that government should not seek to prohibit consensual distributions of sexual materials to adults, the Commission discussed several arguments which are often advanced in support of such legislation. The Commission carefully considered the view that adult legislation should be retained in order to aid in the protection of young persons from exposure to explicit sexual materials. We do not believe that the objective of protecting youth may justifiably be achieved at the expense of denying adults materials of their choice. It seems to us wholly inappropriate to adjust the level of adult communication to that considered suitable for children. Indeed, the Supreme Court has unanimously held that adult legislation premised on this basis is a clearly unconstitutional interference with liberty.

8.

There is no reason to suppose that elimination of governmental prohibitions upon the sexual materials which may be made available to adults would adversely affect the availability to the public of other books, magazines, and films. At the present time, a large range of very explicit textual and pictorial materials are available to adults without legal restrictions in many areas of the country. The size of this industry is small when compared with the overall industry in books, magazines, and motion pictures, and the business in explicit sexual materials is insignificant in comparison with other national economic enterprises. Nor is the business an especially profitable one; profit levels are, on the average, either normal as compared with other businesses or distinctly below average. The typical business entity is a relatively small entrepreneurial enterprise. The long-term consumer interest in such materials has remained relatively stable in the context of the economic growth of the nation generally, and of the media industries in particular.

9. The Commission has also taken cognizance of the concern of many people that the lawful distribution of explicit sexual materials to adults may have a deleterious effect upon the individual morality of American citizens and upon the moral climate in America as a whole. This concern appears to flow from a belief that exposure to explicit materials may cause moral confusion which, in turn, may induce antisocial or criminal behavior. As noted above, the Commission has found no evidence to support such a contention. Nor is there evidence that exposure to explicit sexual materials adversely affects character or moral attitudes regarding sex and sexual conduct."

The concern about the effect of obscenity upon morality is also expressed as a concern about the impact of sexual materials upon American values and standards. Such values and standards are currently in a process of complex change, in both sexual and nonsexual areas. The open availability of increasingly 9 See footnote 4 in the Overview of Effects.

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