ANTIOBSCENITY LEGISLATION THURSDAY, SEPTEMBER 25, 1969 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE No. 3 OF THE The subcommittee met at 10:15 a.m., pursuant to call, in room 2141, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding. Present: Representatives Kastenmeier, St. Onge, Conyers, Ryan, Mikva, Poff, Hutchinson, Biester, and MacGregor. Staff members present: Herbert Fuchs, counsel, and Paul S. Fenton, associate counsel. Mr. KASTENMEIER. The committee will come to order. Subcommittee No. 3 meets today to begin public hearings on a large number of legislative proposals whose purpose is to control the great and apparently growing traffic in obscene materials, both through the mails and in commerce. The subcommittee has pending before it approximately 150 such bills, with more than 175 congressional sponsors. At the same time, a subcommittee of the Committee on Post Office and Civil Service has had referred to it on the order of 40 additional antiobscenity bills and has been holding hearings on those. The gravity of the problem and the sense of outrage that has affected many of our people in relation to the broad-scale unsolicited dissemination of sexually-oriented materials are attested not only by the number of pending bills and the number of their authors and cosponsors but also by the volume of mail received in congressional offices from members of the public, urging remedial legislation. All Members who have introduced or cosponsored bills pending before this committee will be invited to testify or, at their option, to submit prepared statements. The subcommittee will also hear testimony from other witnesses. At the same time as these legislative proposals are pending in the Judiciary and Post Office Subcommittees, a Commission on Obscenity and Pornography, created by Congress in 1967, is studying these problems with an extended deadline or due date for its report of July 31, 1970. The Commission has just filed a progress report indicating the course of its work in pursuance of the following mandate from Congress: (1) with the aid of leading Constitutional law authorities, to analyze the laws pertaining to the control of obscenity and pornography; and to evaluate and recommend definitions of obscenity and pornography; (2) to ascertain the methods employed in the distribution of obscene and pornographic materials and to explore the nature and volume of traffic in such materials; (3) to study the effect of obscenity and pornography upon the public, and particularly minors, and its relationship to crime and other antisocial behavior; and (4) to recommend such legislative, administrative, or other advisable and appropriate action as the Commission deems necessary to regulate effectively the flow of such traffic, without in any way interfering with constitutional rights. In essence, the progress report indicates that at this time further research is needed to provide the desired answers. In considering the pending legislation the subcommittee's object will be, at least tentatively, to recommend such legislative action as it deems necessary to regulate effectively the flow of traffic in obscenity without interfering with constitutional rights. In this, the subcommittee will seek the assistance of the authors of pending bills, the Commission, and such other sources as can be helpful. Further, in May 1969, President Nixon sent a message to Congress regarding legislative proposals to deal with the flow of sex-oriented mail and requesting enactment of three separate pieces of antiobscenity legislation. All three proposed measures have been introduced and two are before this subcommittee. Although the third was referred to the Postal Operations Subcommittee of the Committee on Post Office and Civil Service (as title II of H.R. 10877), its provisions are very relevant to our proceedings. For its first witness today, the subcommittee is honored to hear our distinguished chairman of the House Committee on the Judiciary, the Hon. Emanuel Celler. Our second witness will be the gentleman from Ohio, Hon. William M. McCulloch. Both of the President's proposals have also been sponsored by three members of the subcommittee itself, namely, Messrs. Poff, Hutchinson, and MacGregor. In all, the President's first and second proposals have each been sponsored by more than 40 Members. At the conclusion of Congressman McCulloch's testimony, we shall be pleased to hear from our friend from Florida, Congressman Bennett, whose bill, H.R. 5171, "to prohibit the dissemination through interstate commerce or the mails of materials harmful to persons under the age of 18 years, and to restrict the exhibition of movies or other presentations harmful to such persons," exceeds all others in the number of cosponsorships and subsequent independent introductions of identical legislation it has engendered. Sixty-five Members have sponsored this bill or identical bills, and at least eight more have authored or cosponsored legislation based upon it. In addition, correspondence received from the public endorsing remedial legislation refers predominantly to H.R. 5171, introduced by the gentleman from Florida. We had invited our committee colleague from New Jersey, Congressman Cahill, whose bill, H.R. 2522, "to amend title 18, United States Code, to prohibit the mailing of obscene matters to minors, and for other purposes," was followed by 50 identical and a number of similar introductions and who has himself also cosponsored both of the President's bills. Mr. Cahill is unable to attend but will submit a statement. Our last witness for the day will be Hon. William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Department of Justice, who, it is hoped, will give us a perspective of the pending legislation as well as an explanation of the administration bills. At this time, in order to provide a frame of reference, if there is no objection, the following will be placed in the record: (1) H.R. 5171, H.R. 2522, H.R. 11009, H.R. 11031, H.R.11032, and H.R. 10877, (see Appendix B); (2) The President's Message of May 2, 1969, regarding legislative proposals to deal with the flow of sex-oriented mail; (3) Public Law 90-100, establishing the Commission on Obscenity and Pornography; (4) House Report No. 521, 90th Congress, 1st session, accompanying H.R. 10347, which became Public Law 90-100; and (5) The progress report of the Commission on Obscenity and Pornography, dated July 1969. (See Appendix C for items (2), (3), (4), and (5) above.) Mr. KASTEN MEIER. Now I would like to recognize the gentleman from Virginia, Mr. Poff. Mr. POFF. Mr. Chairman, as we begin these hearings, I think it is important to understand that we are here on a deadly serious business. What is proscribed in the several bills pending before this subcommittee is material that is more than annoying. It is worse than salacious. It is beyond the merely indecent and immoral. And in all its many forms it reflects a sinister, virile, passionate perversity, and a depravity which should not be left unchecked. Let us understand that our principal target is not the contemptible, and yet pitiable street-corner hawk of filthy pictures. Our principal target is the arrogant baron of pornography, who is contemptuous of present laws and all penalties, and who is growing rich in the sale of filth by stimulating and exploiting an unnatural appetite. Our first concern is the protection of young people, young people with immature biological and psychological impulses, young people stirred by an unseasoned curiosity and eagerness to experiment with the unknown. The first bill, H.R. 11031, which I might say, parenthetically, has a certain judicial mandate in that it is carefully tailored to the guidelines set by the leading court decisions in this area, is aimed at that principal concern. Most Members of Congress, I think, will readily embrace the thrust of H.R. 11031. H.R. 11032, which deals with the advertising aspects of the trade, is not limited in its scope by the age factor. Some support H.R. 11031, but may oppose H.R. 11032 on the ground that, with respect to adults, Congress, even if it has the power, should not exercise the power to legislate in this field. I disagree. Those who are continually anxious to protect our young people will support not only the purpose of H.R. 11031, but the purpose of H.R. 11032 as well, and this is because the smut business depends for its economic livelihood upon the patronage of adults who have economic power to purchase the product. Most experts on the subject agree that our children will be safe enough if adults would voluntarily boycott the obscenity market. I know that constitutional questions will be raised, and each must be considered carefully. The reason is twofold. First, we must preserve the rights defined in the first amendment which are so priceless to us all. Secondly, if legislation is to be meaningful and effective, it must be so structured that it will survive constitutional attack. With respect to constitutionality, I remind the Congress that each Member took an oath when he took his seat to uphold the Constitution of the United States. The legislative branch as well as the judicial branch has a responsibility to make constitutional decisions. Constitutional decisions made by the Congress, if fairly arrived at after complete hearings and thorough debate, should be persuasive with the courts. Some of us on this subcommittee, as the Chairman has indicated, have coauthored or cosponsored bills pending before this subcommittee. However, I know I speak for all my colleagues on the subcommittee when I say that I will hear all the testimony with an open mind and make an objective and, I trust, an intellectually honest decision upon the facts. The people of this country, Mr. Chairman, particularly parents of this country, are demanding action by this Congress, and inaction, I suggest, will not soon be forgotten or easily forgiven. I thank you. Mr. KASTEN MEIER. I thank the gentleman from Virginia for his statement. As our first witness today, the subcommittee is honored to hear from our full committee chairman, the gentleman from New York who has introduced H.R. 11009, the first of the bills recommended by the President, a bill to prohibit the use of interstate facilities, including the mails, for the transportation of certain materials to minors. Chairman Celler? STATEMENT OF HON. EMANUEL CELLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK Mr. CELLER. Thank you, Mr. Chairman. I am honored to share with your distinguished subcommittee some of my views on the antiobscenity legislation that is pending before you. The subcommittee merits high praise for its willingness to grasp the thorny nettles that beset this issue. As you know, it has been said that the concept of obscenity puts the constitutional right of free speech in dramatic conflict with the right of privacy. It is this conflict that you have undertaken to arbitrate. I know no group of men whose devotion to the first amendment's right of free speech and free press exceeds that of this subcommittee. I like to believe that I share this trait with you. I am proud to admit to a powerful bias in favor of freedom of speech. Censorship has no place in a free society like ours. We avoid censorship because it seems to us to strike at the very roots of our democracy. On the other hand, there is obscenity and, more particularly, its gross public exploitation. A very substantial number of our fellow citizens are deeply shocked and offended by what they feel is an invasion of their privacy and an unendurable seduction of the innocence of their young. I have reference, of course, to what appears to be a growing dissemination of sex-oriented materials, consisting for the most part of advertisements and catalogs for erotic materials available through the mails. Samples of this material have come to the offices of most of us, I believe. Some of it is both disgusting and wholly indefensible in terms of value. Some seems merely meretricious-less offensive than cheap. Many people are raising the question whether free speech can justify what they regard as virtual assaults on their sensibilities. They are outraged by this kind of mail and want it stopped. Many members, among our colleagues, feel that the issue requires a hearing now, in advance of the report that will come from the Commission on Obscenity and Pornography, which was appointed by Congress in 1967 and is studying the obscenity problem. I have asked to address you this morning partly to set the record straight concerning my own attitude on obscenity legislation. It is not substantially different, indeed, from that of President Nixon, who said in his message to Congress: The problem has no simple solution. Many publications dealing with sex-in a way that is offensive to many people-are protected under the broad umbrella of the First Amendment prohibition against any law "abridging the freedom of speech, or of the press." However, there are Constitutional means available to assist parents seeking to protect their children from the flood of sex-oriented materials moving through the mails. The courts have not left society defenseless against the smut peddler; they have not ruled out reasonable action. I do not oppose legislation that would protect the young against the assault of erotic merchandise nor legislation that would enable householders to immunize themselves and their families against the indignity of being confronted by gross erotica, provided it can be done constitutionally and fairly, after weighing the conflicting interests involved. I should like now briefly to comment on a few of the bills pending before you. As you know, in 1957 the Supreme Court declared in the Roth case (Roth v. United States, 354 U.S. 476, 1957) that obscenity is not entitled to 1st amendment protection. The Court also defined obscenity. Pursuant to this and subsequent High Court decisions, material is "obscene," in the sense that its dissemination may constitutionally be proscribed, only if it meets a threefold test. The material must: (a) appeal primarily to a prurient interest in sex; (b) exceed permissible candor (that is, be offensive) as judged by the current community standards; and (c) be "utterly" without social value. In the Sam Ginsberg case (Ginsberg v. New York, 390 U.S. 629, 1968) the Court somewhat relaxed the narrow definition. It held that the authority of the State over the conduct of children is broader than its authority over adults, and sustained the constitutional validity of a New York statute prohibiting sales of specified types of materials, defined as "harmful to minors" to persons under 17 years of age. The materials proscribed by the statute as "harmful to minors" are those which appeal to the prurient interest of minors, are offensive to adult standards with respect to what is suitable for minors, and are utterly without redeeming social value for minors. |