to obtain it. Mr. J. Edgar Hoover released a report to the effect that he felt that the dissemination of obscene materials was, in fact, increasing sex-oriented crimes.

We might just go back a little bit. We might speak disdainfully of the days of puritanism in our early history, but we didn't have any widespread crime on the street. Women could walk down the streets of our cities at night without fear of being attacked by hoodlums. That is not the case today.

Mr. MIKVA. I would suggest to my distinguished colleague from Ohio that we read the American history a different way. For all our concern, and I share it, about lawlessness today, I doubt that any of the lawlessness today could compare to the lawlessness of the good old days in the wild west, for instance, where you couldn't walk on the street at any time unless you could draw faster than the other guy; so I am not sure that I want to go back to those good old days.

Mr. WYLIE. Well, I am talking about 50 years ago.

Mr. MIKVA. Fifty years ago, in the city of New York, the policement went in pairs. No policemen would dare go into certain areas of New York City by themselves. I am not sure that we don't re-do history as we re-read it.

Mr. WYLIE. Well, the policemen went in pairs, but the point I am making is if you will go back and examine that period of time the crimes were not directed at women. They were not sex-oriented crimes.

Now the gambling interests, of course, were widespread in Chicago, as the gentleman knows, during the days of Al Capone. There was a lot of violent crime, but it didn't have much to do with sex. Mr. BIESTER. Would the gentleman yield?

Mr. MIKVA. Yes.

Mr. BIESTER. My recollection of history is not as good as some, but I do recall that there is a book, published perhaps last year or the year before, dealing with England during the time of Jack-the-Ripper, whose crimes were specifically against women, and that, of course, was at the height of the Victorian era. The book spells out in considerable detail the grave risks that all people had in many sections of the city of London during the time when it was considered to be the capital of the world.

Mr. WYLIE. I would hasten to add to the gentleman that that was an isolated instance. There was only one Jack-the-Ripper.

I don't think we had the widespread sex-oriented crime even during the days of Jack-the-Ripper that we have today.

Mr. MIKVA. I think that is what the question is about. You could not leave London or go to the outskirts of London except in an armed party.

I suppose that the rereading of what history is, will not particularly move us along in the course of trying to find out what legislation we ought to come out with.

I get troubled, as you may have heard when I asked the other witnesses, because I am not sure that we as a subcommittee, or we as a Congress have yet decided what it is we are trying to get at. Is it the offensiveness of this? Is it the esthetic objections that we have? Then maybe we go at it one way.

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Is it that it is an activity that is leading to an enhancement and increase in crime among our youth? If so we go at it another way.

Penalties may be very strong in your bill if we are talking about esthetics. They may be very weak if we are talking about inducement to crime. I have a feeling that we are all prone to slip over the purpose of our being here. This may cause some of the confusion in approach, which I think we have to resolve if we are going to come up with legislation that is meaningful and accomplishes its purpose.

Mr. WYLIE. This is precisely why I have suggested, as an initial approach, H.R. 14100 which applies only to minors and if the gentleman wants to use his approach of invasion of privacy, that is fine with me,

too.

I think parents in a home have the right to determine what type literature their minor children receive, and I think that we should have a statute on the books which would prohibit this type of mail, unless a parent or adult requests it. If consenting adults want to receive it, that is up to them.

Bat when irate parents write to me and say, "We don't want this any more" and there is no way to stop it, then I say we must do something about it.

Mr. MIKVA. I thank the gentleman.

Mr. HUTCHINSON. Mr. Chairman.

Mr. KASTENMEIER. The gentleman from Michigan.

Mr. HUTCHINSON. With regard to this concept of "harmful to minors," the discussion between you and the gentleman from Illinois, Mr. Mikva, brought to mind a question. Is it essential, even constitutionally essential, that whether or not particular material is harmful to minors be determined on an individual basis? On the contrary, isn't it true that throughout the animal kingdom, at least in the higher animals, there is a natural responsibility of the adults to protect their young? Doesn't our society, doesn't our government, as representatives of the people, have an obligation to define a standard which is acceptable to the majority of the community?

If this is so, whether or not proscribed materials are harmful in any particular individual case may be beside the point. Society agrees and the community agrees, at least in large majority, that this is the standard to which they want to adhere in order to protect their young.

I wonder if we haven't got the constitutional right to set up a legislative standard. If you start on the presumption that the Court is going to apply its own individual ideas and determine as a matter of fact every time whether in this particular case this material was harmful to this minor, there will be an anarchy in that area of the law. You won't have any measuring stick to go by.

Mr. WYLIE. I wish to associate myself with the gentleman's remarks. I think the statement is well thought out, and I don't think there is any question that we have the right to legislate in this area. As a matter of fact, the Supreme Court, in the second Ginsberg ease, again said the well-being of its children is, of course, a subject within the States constitutional power to regulate. As within the States. I think we can say that it is within the purview of this Congress to regulate what goes between the States in interstate commerce and through the mails.

Again in the second Ginsberg case, the Court defined materials which would be harmful to minors as set out in the New York statute, Mr. Mikva, and you are familiar with that definition, which impliedly says that we can make a finding as to what is harmful to minors, or the Congress of the United States as a legislative body can make a finding as to what is harmful to minors, and we can incorporate that in a statute.

Mr. HUTCHINSON. I thank the gentleman for that response.

I have only one other question, Mr. Chairman.

In listening to Mr. Wylie's presentation, I think he quoted—was it Mr. Justice Brennan?

Mr. WYLIE. Yes, sir.

Mr. HUTCHINSON (continuing) in a decision which raised in my mind the issue as to whether the Congress would have the power in all cases to define or to limit the appellate jurisdiction of the Supreme Court. I understood that there might be an argument that on constitutional matters the Congress could not withdraw appellate jurisdiction from the Supreme Court.

I believe that the gentleman now appearing before the committee disagreed with that contention, and I want to say that I would associate myself with his views on that. Nothing could be more clear, I think, in the English language than the phraseology of article 3, section 2, where it says, after having definied the original jurisdiction of the Supreme Court, which admittedly Congress cannot touch:

In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

It has been asserted that there is another category; namely, whenever a constitutional question is involved, in which case the Congress cannot withdraw appellate jurisdiction of the Supreme Court, I think that that is simply something engrafted on to the Constitution. It is not there and I think that the legislative branch of Government should be as zealous in asserting its prerogatives in the constitutional system as the courts have been.

I reject the argument that the Congress cannot deny an appeal to the Supreme Court if, in its wisdom, the public interest suggested that certain things should be decided by juries at the district court level.

Mr. WYLIE. Well, I was convinced of the correctness of the statement just made by the gentleman when I first introduced H.R. 8397, but I also state that during the town meeting in Columbus, and when I appeared before the Post Office and Civil Service Commission, this particular section became the target of discussion. The real purpose of the bill was completely lost sight of, and I didn't want that to happen again before this committee.

I do not want to jeopardize the true purpose of the first bill, H.R. 8397, or H.R. 14100, you see. So, I would suggest to Mr. HUTCHINSON that although I agree with you wholeheartedly, I think it would be very difficult to get a bill passed with a section like that in it. Mr. HUTCHINSON. I thank the gentleman.

Mr. KASTENMEIER. The gentleman from Pennsylvania?
Mr. BIESTER. Could I explore just two things?

First, I am concerned about how a legitimate publishing house would deal with the scienter problem. Let's not talk about Mr. Miller and this kind of obviously filthy material floating around, but let's take a publishing house engaged in the printing of a book or a magazine about which they experienced certain apprehensions with respect to a few pages or something in it which might come within the ambit of this statute. This is mailed out to, let's say, 100,000 people.

How do they know that one of those people is not a minor under the age of 18? How can they find out that he is not, and if they don't find out, what are the risks of putting that issue, magazine, or book out? Mr. WYLIE. We put in "knowingly" because it does require an additional test; it does require scienter. It, I think, would go the other way, Mr. Biester. To obtain a prosecution, it would have to be shown that the publishing company had mailed material knowing it to be harmful to minors. I think it would have to be rather obviously harmful to minors, in other words. And, as I said, there is a definition of harmful to minors.

Mr. BIESTER. Well, the publisher would have knowledge that he published and of what he published but he wouldn't necessarily have knowledge of the age of every recipient.

Mr. MIKVA. As I read the bill if you mail it to a household where there is a minor and it is harmful, then you are stuck, whether or not you knew there was a minor present.

Is that a clear statement of the intent of the bill?

Mr. BIESTER. I would like to have it clarified.

Mr. WYLIE. Let's go to the Ginsberg case and how the Court interpreted the word "knowingly."

Mr. FUCHS. The provision of H.R. 14100 is found at the bottom of page 3 and top of page 4.

Mr. BIESTER. I would like to read subsection (B) from the definition of "Knowingly" in the bill, H.R. 14100, starting on page 4, line 4: the age of the minor, provided however, that an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor.

How would one publishing a book go about the process of ascertaining the true age of such recipient?

Mr. WYLIE. Well, that is similar to the chairman's question a little while ago.

As I say, when a sender mails material which is obviously harmful to minors, then it requires or places an onus on the sender, to make a bona fide attempt to ascertain the true age of the recipient. I think the honest mistake can go to either the age of the recipient or its effect on him.

Now, if you are talking about hygiene books sent to high schools for use in classes and which depict nudity, then I think we get back to the question of having reason to believe that the character and content of certain material is harmful to minors. There is the matter of degree again. We can eliminate much that is obviously bad. If there is doubt the protection of minors must be uppermost in our consideration. Then there is room for an honest mistake. I believe the legitimate publisher is fully protected.

Now, let's examine the knowingly part. The challenge of the scienter requirement of subsection (B) centers on the definition of "knowingly."

Page 13 of the Ginsberg case:

Insofar as it includes "reason to know" or "a belief" or ground for belief which warrants further inspection or inquiry of both: (i) the character and content of any material described herein which is reasonably susceptible of examination by the defendant, and (ii) the age of the minor, provided, however, that an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor.

The constitutional requirement of scienter in this sense requires knowledge of the contents of the material. On that necessity rests the burden to allow for constitutionally protected material and to compensate for ambiguities. In other words, I think the bill requires more in the way of protection for the publisher or sender of materials than is necessary. In order to prosecute, it would have to be shown that this sender sent knowingly, having reason to believe that it would be harmful to minors.

If the sender can suggest that "we have been publishing this book for many years," or "we have published depictions such as this for many years and there has never been any question about it," I think evidence such as this would be an indication so that the sender would have reason to know that it would not be harmful to minors.

Mr. KASTENMEIER. If the gentleman will yield, the Ginsberg case, involved a face-to-face sale, and this particular language makes sense when face-to-face sales are involved, but where you and I have difficulties is with respect to dissemination through the mails. Mr. BIESTER. Right.

Supposing, for example, that I am a bookseller in Pennsylvania, and I get an order from somebody in Newark, N.J., who wants to buy "Ulysses." I put it in the mail and mail it to him.

Mr. WYLIE. You got the order from him?

Mr. BIESTER. Yes.

Mr. WYLIE. Then it is not unsolicited.

Mr. BIESTER. All right.

Now, supposing that I send out an advertisement for a reprint of "Ulysses," and I send it out from Pennsylvania to New Jersey, Delaware, New York, and all over the place.

Mr. MIKVA. Would the gentleman yield for a moment?

Mr. BIESTER. Yes.

Mr. MIKVA. Does H.R. 14100 deal with the question whether the matter is unsolicited?

Mr. BIESTER. I didn't think it did.

Mr. MIKVA. I didn't think so, either, so I think the response to the gentleman's question would be if the person who wrote in turned out to be less than 18 years of age, that bookseller is stuck.

Mr. WYLIE. But, then a check could easily be made, I am not very concerned about solicited material.

Mr. Frens. If "Ulysses" is harmful to minors.

Mr. MIKVA. Making the assumption that it is.

Mr. WYLIE. Is it harmful to minors? I don't know about "Ulysses." Mr. MIKVA. It depends on which court decision you take on it.