attempt to meet the standard of obscenity and the three criteria that the Supreme Court has put down, and I guess my answer to that is that I don't think so. I think that advertising particularly, and here I go along with the earlier comment of Mr. Karp, that advertising for first amendment protected materials are also protected by the first amendment. Although you attempt to specify what you are saying, the fact is I think that there are graphic illustrations of people who are engaged in sexual intercourse or close to it which would not be considered obscene and might not be considered offensive by many people, either. Mr. BIESTER. Do you think that the right to privacy in one's home is capable of precluding that kind of material from coming in in an unsolicited fashion? Mr. SPEISER. That is not the way I would phrase the question. I guess I would phrase the question as whether an individual sender would know in advance that he was violating a penal code before sending unsolicited advertising. Mr. BIESTER. That is easy, isn't it? He has a picture and it either depicts sexual intercourse or it does not. The question I am asking is, Isn't the right to privacy at least significant enough to warrant the proscription of this kind of pictorial material coming into one's home unsolicited? Mr. SPEISER. I don't think that that can be claimed unless the materials are judicially obscene. Mr. BIESTER. That is all I have. Mr. KASTENMEIER. Thank you, Mr. Speiser, for your very helpful testimony this morning. Mr. SPEISER. Thank you. Mr. KASTENMEIER. That concludes the hearing for today and the Chair would like to announce that hearings on antiobscenity will resume next Wednesday morning, December 17, at 10 o'clock in this room. Until then, the subcommittee stands adjourned. (Whereupon, at 12:35 p.m., the subcommittee recessed, to reconvene at 10 a.m., Wednesday, December 17, 1969.) ANTIOBSCENITY LEGISLATION TUESDAY, DECEMBER 17, 1969 HOUSE OF REPRESENTATIVES, The subcommittee met at 10 a.m., pursuant to recess, in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier presiding. Present: Representatives Kastenmeier, Mikva, Poff, Hutchinson, and Biester. Staff members present: Herbert Fuchs, counsel; and Paul S. Fenton, associate counsel. Mr. KASTENMEIER. The hearing will come to order. This morning the subcommittee has reconvened to hear further witnesses on pending antiobscenity legislation. The first witness this morning is our distinguished colleague from our own committee, the ranking majority member of the House Judiciary Committee, our friend, the gentleman from Ohio, the Honorable Michael A. Feighan. STATEMENT OF HON. MICHAEL A. FEIGHAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO Mr. FEIGHAN. Thank you very much, Mr. Chairman and members of the subcommittee. It is a distinct privilege and honor to appear before my colleagues, on an issue which is of great importance, as you realize, not only to youth in particular, but also to people at large. The curtailment of the flow of offensive, sexually oriented mail has become of particular urgency. The number of complaints filed with the Post Office Department is constantly rising. In fiscal year 1967, from July 1, 1969 to June 30, 1970, 140,000 complaints were filed with the Post Office Department. The number had increased to 167,000 in fiscal year 1968 and 234,000 in fiscal year 1969. This trend is a manifestation of a nationwide response and resentment to increased traffic in pornographic materials. Presently, there are many fundamental questions concerning the effects of pornographic materials which have not been thoroughly explored. Most noticeably lacking is any evidence which conclusively proves the relationship between the use of erotic materials and standards of conduct in sex and attitudes toward sex. Of particular significance is the relationship between free access to erotic materials and sexually deviate behavior. Experts have reached such diverse conclusions that it is unclear whether exposure to pornography stimulates antisocial behavior in psychopathic persons or whether exposure to such materials can deter overt deviate activities. Although such essential issues are presently under consideration by various groups and individuals, including a Commission on Obscenity and Pornography, the outrage of society with pornographic and obscene materials has grown to such proportions that correction of deficiencies in the law are necessary. A full discussion of all the questions concerning the psychological impact of erotic matter upon individuals will continue for quite some time before resolved to the point of general agreement and acceptance. There are two aspects of the complex problem of pornography that are deserving of immediate congressional attention. First, minors must be protected from harmful materials. There seems to be little doubt that, particularly between the ages of 10 and 17, erotic material has an impact upon the formation of moral values in the young. Second, persons must be shielded from unsolicited, offensive advertising. The right of privacy is infringed by receiving offensive matter, which is totally unsolicited, in the mail. No person should be subjected to personally repugnant material against his will. The task of drafting legislation which adequately protects society from obscene matter while not infringing upon protected first amendment rights is indeed burdensome. The committee presently has pending before it numerous bills dealing with the subject of pornography. These legislative proposals are designed to meet these two basic aspects of the pornography problem. H.R. 11031-incidentally I cosponsored that would end the mailing or interstate transportation to minors of "matter harmful to minor," or advertisements for such material. Ostensibly, the bill is modeled upon the New York Statute held constitutional in Ginsberg v. New York, 390 U.S. 629 (1968). The New York statute had set forth a three part test following the guidelines of the Supreme Court expressed in a series of decisions beginning with Roth v. United States, 354 U.S. 476 (1959). The three criteria are as follows: 1. The material "predominantly appeals to the prurient, shameful or morbid interest of minors." 2. The material "is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors." 3. The material "is utterly without redeeming social importance for minors." H.R. 11031 omits the first and the most important of the three criteria. Only the first part of the formula determines the effect of the material on the person. The second and third criteria are basically objective. The second criterion requires that the material must be "patently offensive" whereas the bill uses the standard "offensive." The deletion of the word "patently" unquestionably lowers the standard. The bill substitutes "substantially without redeeming social value" for "utterly without redeeming social importance." This change would also lower the standard of proof necessary to prove material pornographic. It is indeed speculative whether the change of a few words would render the bill, if enacted, unconstitutional. However, there can be little doubt that the deletion of the first aspects of the test would be fatal. The bill contains another serious constitutional defect. It prohibits the mailing to a residence in which a minor permanently resides unless addressed to an adult occupant of the residence. This provision might be constitutionally challenged for keeping nonobscene materials from adults. Butler v. Michigan, 352 U.S. 380 (1957). Where the publisher mails banned materials to a minor believing that he is an adult, the publisher is exempted from prosecution. The minor need only misstate his age, and the publisher could send him prohibited materials with impunity. Thus, the bill would only be effective if the incidence of fraudulent expressions of age were not prevalent on order forms. In most cases, the minor ordering the obscene material would be reluctant to have it sent to his home, greatly diminishing the incidence of fraud. On September 30, 1969, I introduced H.R. 14100, which I believe, obviates the constitutional questions raised by H.R. 11031. H.R. 14100 closely adheres to the language contained in the New York statute upheld in Ginsberg. The one notable difference is that H.R. 14100 applies to 18-year-olds whereas a minor under the New York statute is a 17-year-old. H.R. 11032 is designed to prevent the transportation of salacious advertising. It provides that no person shall "knowingly deposit in the mail, or transport in interstate commerce, an advertisement or solicitation designed or intended to appeal to a prurient interest in sex." This provision as presently drafted is highly questionable as to its constitutional validity. In Valentine v. Chrestensen, 316 U.S. 52 (1942), the Supreme Court indicated that commercial advertising might not be entitled to the same degree of protection under the first amendment as noncommercial expression. However, other decisions have clearly established that the first amendment does not depend solely upon whether material is commercial in nature. It is particularly doubtful that advertisement for lawful material could be judged by a less stringent test than the advertisement itself. If a less arduous test of obscenity were applied to the advertisement, the willing recipients of such material would be deprived of knowing what is commercially available. H.R. 11032 also appears to be unconstitutional because of its vague expression of proscribed conduct-the transportation of an advertisement "designed or intended to appeal to a prurient interest in sex." The punishment for violation of this section is a fine of $50,000 or imprisonment for up to 5 years. Under the vague language of this bill, it would be virtually impossible for a publisher or distributor to determine whether his conduct was illegal. Since there are no opinions construing this clause, the defendant would have little guidance in determining the scope of permissible activity. Under the due-process clause of the fifth amendment, a Federal law providing criminal penalties will be declared void if the standard is so vague and indefinite that it fails to give fair notice. what act will be punished. These two potential constitutional defects can be prevented by setting forth the full three-part test of obscenity which requires that the dominant theme of the material appeal to prurient interest, that the matter be utterly without social value, and that it be patently offensive. Moreover, the bill should be qualified so that it is applicable only to unsolicited salacious advertising. This requirement would obviate the possible challenge that a lesser standard is used to judge the advertising than is used to judge the material advertised. Unsolicited advertising is obviously entitled to less protection than requested advertising. The First Amendment considerations as to the recipient are entirely different dependent upon whether the material is wanted or unwanted. The addition of the word "unsolicited" is particularly important in light of Redrup v. New York, 386 U.S. 767 (1967) which indicates that the Supreme Court may be leaning toward a philosophy to only sanction legislative bans on pornographic materials where juveniles are involved, individual privacy is invaded, or "pandering" is used. There is also a requirement in H.R. 11032 that the person must "knowingly" transport prohibited material. This requirement would inhibit the ability to stop the flow of pornographic advertisements without a Federal lawsuit, which could result in lengthy litigation. An interesting approach to protecting the public from unsolicited advertising is contained in H.R. 10877. This bill would allow any person to file with the Postmaster General a statement that he desires to receive no sexually oriented advertisement through the mail. The Postmaster General then compiles a list of all persons so notifying him. The list is made available to any person within guidelines to be set by the Postmaster General. There is an absolute prohibition for any person to mail sexually oriented advertisements to an individual whose name has been on the list for more than 30 days. For suspected violation of the Act, the Postmaster General could require that the Attorney General commence a civil action against such person. There are criminal penalties provided for willful violation of this section. This bill would supplement the recently enacted Federal Anti-Pandering Act which permits persons who have once received unwanted sexual advertising in the mail to have their names removed from the mailing lists of the responsible mailer. H.R. 10877 would enable our citizens to avoid receiving this repugnant material in the first instance. Essentially, this bill would assure our citizens an absolute right of privacy against unwanted pornographic advertisement. The definition of "sexually oriented advertisement" seems to be explicit enough to avoid any constitutional challenge on the grounds of vagueness. As previously mentioned, the Supreme Court has indicated that a less stringent test of obscenity may be utilized where unsolicited salacious advertising is concerned. However, to thoroughly assure that no constitutional defect exist, H.R. 10877 could be amended to more closely adhere to the three criterion tests of the Supreme Court. The exact test could not be applied since it includes a subjective element on the part of the recipient. There would be no recipient where a person had his name placed on such a list. I feel that legislation to protect the individual against offensive material which he does not desire to receive is essential. Each of the legislative proposals that I have discussed contains certain deficiencies, particularly H.R. 11031 and II.R. 11032. Even a |