stop this, and you know better than I do that as legislators we have to have a reason for stopping it.

Mr. ICHORD. I am sure the gentleman has read the Supreme Court cases concerning the problem and you realize that the judges recognize the problem also. The difficulty is how to solve it constitutionally.

But I think the gentleman will also agree with me, if he has read the Ginzburg case, that there is no doubt in his mind that Ginzburg was committed to jail for circulating something that up until the Supreme Court decision was legal.

Mr. MIKVA. Well, but if we can continue to zero in on the reason for our doing it, the reason for our trying to legislate, certainly the Court operates in a different set of premises and I think they do.

Mr. ICHORD. No. I would have to say they were legislating a little bit in that area.

Mr. MIKVA. So, let's stop them from legislating. Let's give them a clear legislative policy that we as a Congress decide on what we think will solve the problem. In order to do that, obviously we first have to know what the problem is we are seeking to solve.

If we are seeking to solve the problem of interference with people's right to privacy, that is, that there ought to be, and I think perhaps can be, a protected right in individuals not to receive offensive material in the mails or otherwise, we could take one kind of approach.

If, on the other hand, we decided that this type of mail that you receive leads to lawlessness, leads to crimes of violence, leads to sexed-up younger generations, then we take a different kind of approach.

But, in either event, it seems to me we have to have some kind of backstopping for our legislative policy. I find easier backstopping if we are trying to protect the right to privacy because, as far as I am concerned, if you tell me you don't want it and you are getting that kind of mail, then there is an interference to your right to privacy.

Mr. ICHORD. I only ask the gentleman not to engage in a little buckpassing by passing this on to the Post Office Committee, then have them take another approach, and in effect passing the buck back to the Judiciary Committee. This has been done many times in the past, but I am concerned with more than the invasion of the right of privacy; I am also concerned about the influence, particularly on our minors.

Mr. MIKVA. But, see, then don't we have to have

Mr. ICHORD. But under either approach, even though you take the invasion of privacy approach, you still have the problem of spelling out what is pornography and getting away from the subjective approach. Mr. MIKVA. Let me ask you something.

Don't I have the right to protect my privacy against things that aren't pornographic?

Mr. ICHORD. You define to me what is pornographic, and I am

sure

Mr. MIKVA. No; no.

Let me try specifically the proposal I have been kicking around. Mr. ICHORD. I am like Justice Stewart. Vote against hard-core pornography, and then try to define it.

Mr. MIKVA. In order to protect myself against this stuff, whatever it is, I don't want any mail coming to me that I haven't asked for. No unsolicited mail.

Don't you think that as a postal patron I would be entitled to that kind of protection? Don't you think we would be within the Constitution?

Mr. ICHORD. Yes, I do, but you still have the problem-I presume what the gentleman is driving at, he is going to eliminate all thirdclass mailing.

Mr. MIKVA. Well, that is a possibility. Certainly, it would be constitutional.

Mr. ICHORD. I think that you could definitely, except you could still use first-class mailing to have the invasion of privacy. You could still get the list of names, as the pornographer did in the example I gave. Now, the existing law wasn't effective there at all because the headmaster did not have authority, the superintendent did not have authority, to go down to the Post Office and direct that these kids be taken off the mailing list.

Mr. MIKVA. Just one last question and then I am through.

Subsection (b) of section 2 denies the appellate jurisdiction of the Court of Appeals and presumably the Supreme Court of any findings

Mr. ICHORD. I am not seriously interested in that. It was already included in the bill. I just picked it up for a little shock effect over there, to try to get them to come around and take what I consider a more realistic approach to the matter. I think they have tied themselves into knots, but I can well understand why because it is a very difficult problem.

Mr. MIKVA. I have no further questions.

Mr. KASTENMEIER. The gentleman from Michigan.

Mr. HUTCHINSON. I have an idea that I have not broached heretofore in these hearings. I want to do it now, and I would like to have Mr. Ichord's reaction to it.

We have on the statute books at the present time legislation which, until a short time ago, was considered to be adequate

Mr. ICHORD. The gentleman from Nebraska, Mr. Cunningham, I believe, offered it, did he not?

Mr. HUTCHINSON. I am not referring to that statute, the AntiPandering Act of 1968. I am referring to 18 U.S.C. 1461, which defines nonmailable matter. This statute covers a lot of this stuff that is going through the mails. It has been on the books for years.

Mr. ICHORD. That is the statute on the books under which Ginzburg was tried. Mr. HUTCHINSON. Yes.

Two or three of these cases have gone to the Supreme Court and the Supreme Court has taken a certain factual situation and has interpreted the words of the statute with regard to it and made up some ideas about what they think the Constitution means. In these three or four cases they let the people off.

As a matter of governmental policy, it seems to me that it would have been good practice for the Post Office Department to continue to enforce that law instead of simply having the bureaucracy take the attitude of just wringing its hands and saying, "There isn't anything we can do, we can't enforce that law; we haven't got any law on the books." Every case is different, and lawyers are usually ingenious

enough to make new arguments. Wouldn't it have been a better policy for them to continue to charge these folks with violations?

All of this stuff is going through the mail. They have got, I am told, 250,000 of these things that have been turned over to the Post Office Department. They ought to have continued to prosecute these cases. Certainly, the people of this country are with them and certainly the juries are with them. Maybe in this way some more cases would have gone to the Supreme Court under de facto situations and it would have given the Supreme Court an opportunity to differentiate these cases from previous decisions and redeem itself. Instead they just said, "Well, the Supreme Court has spoken. We just can't do anything about it. Too bad.”

Mr. ICHORD. I think the Supreme Court was taken, as a matter of fact, in a lot of these advertisements which, I am sure, the committee knows; the panderers have used the Supreme Court decisions as an indictment to buy the material. I would agree with the gentleman.

I am pragmatic enough to believe, faced with the situation existing today, that it would have been better for the administration, for the Department of Justice, to pursue that approach. You do have the problem of censorship, how far you want to play around with the danger of censorship. Depending on who is going to be the censor, it might be concluded that no sex material would be legal.

Mr. HUTCHINSON. Of course, what it amounts to now is that the censor in this country is the Supreme Court, and they are not doing a good job of it.

Mr. ICHORD. I think that is a fair statement. I am not being critical of the Supreme Court when I say it, because they are taking the Constitution and the statute under which Ginzburg was convicted and have come out with this test that we have been talking about. It is very difficult to enforce and they just haven't been able to do it. Mr. HUTCHINSON. I thank the gentleman.

Mr. KASTEN METER. May I just, before I call next on the gentleman from Pennsylvania, say that at yesterday's hearing, I am informed, before the Post Office Committee, it was testified that there are 10 or 15 indictments pending under existing law and there is activity under existing law in this field.

I suspect that the items here, for example, are all illegal under existing law. Some of the other matters that got by in the court were probably other than this form of material.

Mr. ICHORD. I don't know. I haven't taken the time to compare the exhibits with the existing law. I would just comment that probably most of these indictments are under the mailing statute, are they not, rather than the statute, what I call the Ginzburg statute? It has been on the books for many, many years.

Mr. KASTENMEIER. I yield to the gentleman from Pennsylvania. Mr. BIESTER. I have no questions.

Mr. KASTEN MEIER. We thank our colleague from Missouri.

Mr. ICHORD. Thank you, gentlemen.

Mr. KASTENMEIER. The Chair would like to express appreciation for the witnesses who have come this morning and state for the record that the order of the witnesses is determined, insofar as possible, by

the low number of the legislation offered, and we have tried to follow this rule.

At the same time, I express chagrin at those of our colleagues who have accepted and scheduled appearances, personal appearances, and then at the last moment have declined to appear. This has made the committee scheduling a problem, particularly yesterday, as a case in point. That is why we are doubly appreciative of the appearance of our several colleagues this morning.

Next this morning, the Chair welcomes the gentleman from Ohio, Hon. Chalmers P. Wylie, who has taken the lead in this field and has, himself, worked on legislation at great length. He is a sponsor of several bills, the latest one a bill he has himself authored and found many cosponsors for.

We are very pleased to have you before the committee.

STATEMENT OF HON. CHALMERS P. WYLIE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO

Mr. WYLIE. I thank the distinguished chairman and distinguished members of the subcommittee.

I appreciate very much the opportunity to testify on this urgent and pressing problem.

I have filed a statement, and I will follow it rather closely.

I want to commend the members of this subcommittee for your search to find legal means to strengthen the hand of enforcement officials in fighting an ever-increasing traffic in smut literature.

Almost daily, since I was sworn in as a Member of Congress, I receive letters from irate constituents protesting the receipt of obscene materials through the mails. To date, I have received over 1,500 and over 5,000 names on petitions urging Federal legislation to prohibit the use of the mails for the distribution of such materials.

Until March of this year, I sent the letters of protest and examples of smut literature to the Post Office Department. Then I introduced H.R. 8397 with Congressman John Hunt and, since then, I have retained as evidence at least one copy of the various types of pornographic materials getting dumped into my district, and I use the word "dumped" advisedly.

I am sure that the members of this subcommittee have seen much of this disgusting filth, but I would like you to examine some of the evidence I have with me, so that you will know the reason for my persistence and my impatience with further delay.

I hasten to add that one must almost be obscene to meaningfully discuss a bill on obscenity. I will show you this material now, sensing that you have probably seen most of it and it probably will not have the shock factor that it had when I presented it before a Columbus town meeting audience back in April.

The Columbus town meeting is a forum which has been going on for some 32 years. It has a high-viewing audience on Sunday, and I had with me on the panel a young man who is a professor of law at Ohio State, and who is also counsel for the American Civil Liberties Union, who was using the free speech argument against any obscene literature

There was a professor of art there, also. I showed them a piece of material which had been sent in to a 12-year-old boy in my district, and I asked them to examine it, not so that it was shown over the television to the television audience, of course. When they looked at it, each agreed it was obscene and each agreed that some type of legislation should be enacted to prohibit the distribution of this type of material

to minors.

These other materials have been selected at random and are the most recent which have come in. I would like to have them back. I am not going to leave them around in case something happens to me. I want to return them to the safe.

Mr. KASTENMEIER. They will be returned.

Mr. WYLIE. Gentlemen, the smut material which you are now observing is filth, absolute filth. It can be characterized in no other manner, and most of it is in the nature of advertisements for pornographic literature and films that are so objectionable they would fail to pass constitutional muster under any of the recent Supreme Court obscenity decisions.

Smut is big business, gentlemen. The volume of this trash going to young adults and impressionable young people is tremendous. We have no figures on the actual number of individual pieces of smut advertising moving via the mails or interstate commerce.

But, viewed in the light of one-quarter of a million complaints registered with the Post Office Department over the past year, and that is the figure they gave me when I checked with them, the flood of angry letters received by Members of both Houses of Congress and the brunt of the protest which is directed to letter carriers and local postmasters, the volume is indeed enormous.

These materials often arrive in envelopes which do not reveal the nature of their contents. Consequently, unsuspecting housewives, children, and secretaries in business establishments are subjected to this filth unwittingly. I, personally, know of instances where advertisements containing vivid samples in living color of the pornography being offered for sale were received by minors 12 and 15 years of age. There was no mistake, for the smut was addressed to these young boys in their own first names, which differed from their fathers' first name. This boy had ordered it and he was sent to my office with it as a disciplinary measure, I have a feeling. I would like to have you take a look at that as an example of what the possibilities are under existing statute.

The smut peddlers are a brazen lot. They mail lewd advertisements indiscriminately and with impunity to business concerns, young people, and housewives. According to a recent newspaper article by Miriam Ottenberg, a Star staff writer, they have even mailed pornographic advertisements to Catholic schools, a Baptist Sunday School, the Young Women's Christian Association, and the President of the United States.

The mails are the basic instrument of commerce providing the distribution channels that allow the smut purveyor to prosper. His is volume business. He must be able to solicit on a mass basis to guarantee a profitable return on his investment. If a means to deny him the unrestricted use of the mails is perfected, then his operations will become unprofitable.