Mr. MILLER. Thank you. Throughout the country, people are incensed about the flood of pornographic advertising that is being introduced into our homes via the mails. It is especially distressing that much of this material is intended by the senders to appeal to the curiosity of our children.

The grave concern about this problem is evidenced by the fact that more than 150 bills to police the distribution of pornography have been referred to the Committee on the Judiciary, and over 70 such bills have been referred to the Committee on Post Office and Civil Service.

On May 2, President Nixon sent a message to Congress recommending a three-front attack on the problems of pornography and obscenity. In addition, many local and nationwide citizens groups have organized to express their outrage and to demand legislative action.

Finding an effective method of suppressing the traffic in obscenity does present difficulties to all lawmakers. The Supreme Court has overturned on constitutional grounds many criminal convictions under obscenity laws. Our task as legislators is to frame a statute that can survive the test of constitutionality. Then law enforcement officials and citizens groups will have authoritative basis of support in their fight against the purveyors of smut.

I have introduced three bills that I believe could effectively control this social evil. The first, H.R. 10968, would provide for the withdrawal of second-, third-, and fourth-class mailing privileges from those who have used such privileges to distribute obscene, sadistic, lewd, or pandering materials. This bill is pending before the Committee on Post Office and Civil Service.

The other bills, H.R. 10969 and H.R. 14100, would make it a Federal criminal offense to send or offer to send through interstate commerce— including the mails-obscene materials deemed harmful to minors to any minor under the age of 18 or to a household where a minor resides. Also outlawed would be the showing of obscene motion pictures to minors.

To enforce its provisions, the bill imposes a penalty of up to 5 years' imprisonment and a $5,000 fine for the first offense. The punishment provisions are doubled for any subsequent offense.

H.R. 10969 also contains a section which would provide that the U.S. Supreme Court and the courts of appeals would not have jurisdiction to review any determination that material was in fact harmful to minors. This bill is presently pending before your committee.

The Supreme Court has conceded that the well-being of children is a subject within the Government's power to regulate. I therefore believe that a statute, such as H.R. 10969 or H.R. 14100, clearly aimed at shielding minors from objectionable materials, could be effectively enforced with criminal sanctions.

With sex crimes and perversions on the increase, and with a general decline in moral standards across the country, it is imperative that strong measures be instituted to crack down on those who profit by warping the morality of our youth.

I urge the subcommittee to take affirmative action on H.R. 10969 or H.R. 14100.

Mr. KASTENMEIER. Thank you. As you see the main problem, is it to prevent the mailing of obscene materials to the youth of the country?

Mr. MILLER. Yes; not only in mailing but also material that may be purchased. As a matter of fact, the main purpose of the bill that we have now before your committee is to describe just what is obscene. As a former mayor of our community back in Ohio, we many times had problems where I have discussed these matters with our service director and our chief of police, because of their deep concern with problems such as we are trying to stop here today. Their big difficulty was: We are not able to decide or to say what is obscene. So in many, many instances, we had mailings come in and we also had books on the shelves of the bookstores that they felt they should remove but, frankly, they felt they had no statute that would support them.

Mr. KASTEN MEIER. Part of the argument, as I understand the colloquy just preceding your testimony, is on the ability to determine what is obscene, that if we decentralized the ability to determine what is obscene on a local basis, that no one would still know what is obscene and what is not. Life magazine might not be able to enter Grand Prairie, Tex., but might enter your community in Ohio, on the same basis, by community standards.

So you are not proposing that juries determine locally what is obscene as opposed to setting a national standard which is constitutional? Mr. MILLER. I am a great believer of local government, but I believe the obscenity problem goes beyond that point at this time. I believe we do need some Federal control. Here is material going through the mails, covering the various local areas, covering the States, and it appears that the responsibility now is at the Federal doorstep. I would like to see it, and I would like to make a different statement than that, but I am concerned because I believe that is where we are today, that the local juries are attempting to designate what is obscene. For this reason, we only see more and more obscene material being mailed and also sold over the counter.

Mr. KASTENMEIER. Other than the mail, what concerns you is that which may be purchased. Now, in this connection, it is principally over the counter in various communities; that is, at newsstands or magazine stands and book racks, that you think is the problem?

Mr. MILLER. Yes; there is no doubt about it. When it goes as far as it has, I believe we must have a bill such as this. I am sure many Congressmen have introduced bills similar to mine in which they are attempting to describe what is obscene.

Mr. KASTEN MEIER. Is there any other area that concerns you? In other words, what is mailed, particularly to minors, what may be purchased at certain newsstands or magazine stands-is there any other area?

Mr. MILLER. Well, of course, as the gentleman from Texas mentioned a few moments ago, the obscene motion pictures that are sold. The material we receive in our office from our constituents shows a very high price for the motion pictures, so apparently those people who are selling are moving in fast, hoping to unload as much as possible before you gentlemen can approve some legislation that would slow this down or stop it altogether.

Mr. KASTEN MEIER. Thank you. The gentleman from Connecticut. Mr. ST. ONGE. Thank you, Mr. Chairman. Mr. Miller, in connection with your experience in this matter as mayor of Lancaster, Ohio, was

there any local ordinance on the books that tried to control obscene literature?

Mr. MILLER. Yes; we had local ordinances, but the word "obscene" was the main word in the ordinance. The difficulty was determining what was obscene or what was not obscene. This was the problem of the local police force, of the local courts. This seems to be where we need to go so far as to define "obscenity" so they have something to work with.

Mr. ST. ONGE. Was there a State statute in effect that you worked with or under?

Mr. MILLER. At the time, I do not believe there was a State statute. Mr. ST. ONGE. So this was largely a local ordinance?

Mr. MILLER. Yes; it was.

Mr. ST. ONGE. Which was not specific enough to stand the scrutiny of the courts?

Mr. MILLER. That is correct.

Mr. ST. ONGE. Thank you. That is all, Mr. Chairman.
Mr. KASTENMEIER. The gentleman from Illinois.

Mr. MIKVA. No questions. Thank you.

Mr. KASTENMEIER. The gentleman from Virginia.

Mr. POFF. Thank you, Mr. Chairman. As I understand H.R. 10969, it follows very closely the definition used in the New York statute which was the predicate for the lawsuit in the Ginsberg case. Is that substantially correct?

Mr. MILLER. That is what I understand.

Mr. POFF. Then the bill provides for the cutoff of appellate jurisdiction of the Supreme Court and the circuit courts of appeals?

Mr. MILLER. That is correct.

Mr. POFF. However, that cutoff of appellate jurisdiction applies only with respect to cases which arise within the Federal jurisdiction as distinguished from State jurisdiction?

Mr. MILLER. That is correct.

Mr. POFF. Now, I do notice, however, one rather obscure phrase which would have the effect of broadening rather dramatically the reach of the statute as it was drafted in the State of New York. I direct your attention to line 9 on page 1. There you will find the clause "to any household in which a minor resides."

I wonder if that phrase would run afoul of the Supreme Court's 1957 decision in the case of Butler v. Michigan. The Court, speaking by Mr. Justice Frankfurter, held that the Michigan statute violated the first amendment because it prohibited sale to adults as well as to minors who might happen to reside in the household.

The decision expressed the fear that such a statute might reduce the adult population of Michigan to reading only what was fit for children and criticized the statute as one which might "burn the house in order to roast the pig."

This decision, I say, was rendered in 1957 and is thus not a part of the recent complex of Supreme Court decisions. I am wondering if the phrase which you have employed there might jeopardize the constitutionality of the entire bill.

Mr. MILLER. That is possible. The purpose of this clause, however, is to put the burden of proof back on the people who would distribute.

The adults of the household could still go out and purchase if they wanted to purchase such a thing.

I, too, am not a lawyer. I am aware of the constitutional impediments. I am not sure of every bit of the language. You people who are in control here, we have faith, will go through and come up with some legislation that will be meaningful and enforceable. I think it is very important.

So when it comes to describing the purpose of the bill, we are attempting to define what is obscene. I know that you have a great responsibility to see that something is put together that will help the moral fabric of our country which is being pulled apart by the widespread distribution of smut.

Mr. POFF. I want to apologize to the gentleman and pay him this tribute, I have been so impressed by the insight which his conversations with me showed into the obscurities of the law, that I naturally assumed in all of our acquaintance that he was a lawyer. That may not be a tribute; it may be an indictment. I hope it is not.

But in any event, I want the gentleman to know that I was not toying with him by the question I propounded a moment ago. That question more properly should be put to a lawyer. I thank the gentleman for his testimony.

Mr. KASTENMEIER. The gentleman from Pennsylvania.

Mr. BIESTER. I want to share in the surprise. I was under the impression that the gentleman was an attorney. I came with him to the Congress the same year and enjoyed serving with him, and his perspicacity in legislation has led me to believe that he was an attorney. Again, I don't know whether it is a tribute or indictment, either.

But I think that the question raised by the gentleman from Virginia goes, in part, to the heart of the matter with respect to any bill which regulates use of the mails. Even if we did not have this phrase "to any household in which a minor resides," we still have a situation in which material is being disseminated not face-to-face but through a faceless system in which there may not be a rational means of identifying the age of the party who is the recipient. The Ginsberg case, brought under the New York law, was, as I recall, the face-to-face kind of circumstance, and there I think identification is relatively easy.

But where we are dealing with something as anonymous on both ends as the mail, I think we have to walk a very fine line between requiring reasonable knowledge-I won't use the word "scienter"-on the part of the sender and still providing protection for the household of the recipient.

This is where I find some difficulty with the application of the New York law, which was a face-to-face circumstance, to the mail. And I think that the gentleman's phrase in the bill brings that to urface even more rapidly than the bill as a whole. I think it still is a problem within the whole bill.

I want to thank the gentleman for his testimony.

your

Mr. MILLER. Thank you, Mr. Chairman. I might say that my committees are Public Works and Agriculture, and we know of responsibility in bringing out a bill. Our committee work is really worlds apart, but you do have a big responsibility, and we hope that if there is anything that we or our staff people can do to help you in any way, we would be glad to do that.

I know of the problems throughout the 50 States. I have had the opportunity to talk with a number of people in their own home State about this problem, and I am sure that you have had many sit here in the chair to discuss this with you. But we, the rest of us who are serving on other committees, are looking to you for the leadership to bring out a meaningful bill that will help, again, to pull together that fabric of our society that today seems to be stretched almost to the breaking point by obscene materials that are being sent through the mails. Thank you very much.

Mr. KASTEN MEIER. Thank you, and, as my colleagues have suggested, you have already been most helpful.

Next the gentlewoman from Missouri, the Honorable Leonor Sullivan, has asked to appear today, and without objection, her statement will be accepted for the record and will appear at this point.

(The statement referred to follows:)

STATEMENT OF HON. LEONOR K. SULLIVAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MISSOURI

Mrs. SULLIVAN. Of all the areas in which Congress legislates, this is one of the most difficult and frustrating. The harder we try to remove from the mails, or deny to children, commercialized obscenity, the more this material seems to proliferate. If there is going to be an effective answer to this moral dilemma, it will have to be defined and refined in this committee of the House of Representatives, which alone has the legislative authority and the constitutional expertise to give our law enforcement agencies the legal tools they need to protect the children of this country from the merchants of filth.

I am not an expert in constitutional law. I know what the first amendment provides, and I know how it has been stretched and tortured in interpretation to justify and permit the sale and distribution of the most depraved kind of smut and pornography.

Unless a parent actually sees some of this salacious garbage, made available to children so readily on a commercial basis, most people tend to think the public protests against pornography are exaggerated and overdrawn. But once one of the advertising brochures from the pornography factories comes into the home and a parent has an opportunity to look it over-to see what was sent to a son or daughter in elementary or junior high school, for instance the reaction is angry and immediate from that parent: "This material is criminal, and sending it to my child is the act of a depraved person!" And the parents demand that we do something about it.

Every Member of Congress has had material of this kind forwarded to him or to her by parents who are aghast at the shocking stuff their children have received in the mail, or the advertisements they have received which are often as bad or worse. The Members of Congress are counting on this committee of the House to succeed where it so far has failed; and, that is, to draft legislation which will preserve the rights of the American people under the first amendment to free expression of opinion while at the same time outlawing the sale and distribution through the mails to children of materials which even the most tolerant and permissive parent would never permit the child to have if the parent knew about it.