STATEMENT OF REV. JOHN MCLAUGHLIN, S.J., U.S. CATHOLIC CONFERENCE; ACCOMPANIED BY W. R. CONSEDINE, GENERAL COUNSEL

Reverend MCLAUGHLIN. My name is John McLaughlin. I am a Jesuit priest and an associate editor of the Jesuit weekly "America." I am privileged to give testimony before this distinguished body today, on my behalf and on behalf of the U.S. Catholic Conference. The U.S.C.C. represents the Catholic bishops of the United States. I am accompanied by Mr. William Consedine, general counsel of the U.S.C.C.

It has been reliably estimated that 50 to 100 million pieces of sexually oriented materials pour through the postal system of this country annually. This voluminous solicitation tries to sell written and graphic depictions of nudity, sexual technique, pederasty, homosexuality, lesbianism, and sado-masochistic activity. The advertising itself does not have the full graphic prurience of the product being sold, but it is, nevertheless, almost universally offensive and, for a significant number, corrupting.

The pornography that is peddled by this mail advertising brings an extremely lucrative return on investment. Pornography is cheap to produce, and, thanks to our governmental postal service, economical to deliver. Like drug addicts, the addicts of pornography will pay high prices for the materials of their stimulation, despite very cheap manufacturing costs. Government investigating committees have fixed the yearly national business in degenerate sexual materials as high as $1 billion.

The citizens of this country are rightly vexed by this traffic. Over 230,000 complaints were received by postal authorities during the fiscal year ended June 30, 1969. The bloating smut traffic has occasioned more angry mail to some long-term Congressmen than that received by them on any other subject.

The most contemptible aspect of the smut flood is that this unsolicited advertising is aimed in large part-some say largest part-at adolescents and young adults. Mailing lists of names of preteen children are bought by peddlers and held until the children have grown to the age of maximum vulnerability-about 15 years of age-when their curiosity is peaking. One private agency estimates that three-fourths of the lewd paperbacks and magazines circulating today in the United States find their way into the hands of teenagers under 18 years of age. "On the basis of our experience," notes the Maryland Crime Investigating Commission, "we know that a child can receive all types of perverted sex literature through the mails. Again, if our experience may be considered typical, a child ultimately may be the recipient of hundreds of pieces of such mail by showing a curious interest in one advertisement."

Young people can be seriously damaged by such lubricious materials in their social, moral, emotional, and spiritual development. A milieu that is sexually permissive can engender in youngsters the inclination to view life as an excursion into mindless, hedonistic selfindulgence, rather than as a responsible trust for which they will be held accountable. Our culture today, in the United States, is admittedly

overpermissive and overstimulating. It is difficult for young people to see themselves as fiduciaries of human freedom, a freedom that must be shaped and structured by self-discipline for the responsible assumption of obligations, and the responsible exercise of human rights by self-discipline. Existing overlax conditions ought not be worsened by sanctioning the use of a governmental utility-the U.S. mails for the transfer of destructive materials into their hands. Legislation such as that proposed by the present administration is especially needed at this time. Disturbing increases in illegitimate children born to teenage parents, increases in juvenile delinquency, in adolescent rape, and sex crimes point to the need of such governmental action. Since 1937, rape cases have more than doubled. Eighteen-yearold males commit more rapes than any other male age grouping. The situation regarding venereal diseases, abortion, and other social pathologies reveals similar bloatings. The inundation of this country with prurient mail solicitations to youngsters may reasonably be assumed to figure significantly in the spread of these and other social disorders. Much expert authority supports the view that materials such as those within the purview of the administration's proposed legislation produces antisocial behavior. Writing in the New York State Bar Journal, Dr. Max Levin, clinical professor of neurology, New York Medical College, says, "Unscrupulous publishers cater to the sex hunger of our people and their lurid books . . . cripple our youngsters by encouraging the expression of sex impulses in an unhealthy direction." The New York Academy of Medicine observes: "Such reading encourages a morbid preoccupation with sex and interferes with the development of a healthy attitude and respect for the opposite sex." The medical director and chief neuropsychiatrist of the Philadelphia Municipal Court, Dr. Nicholas G. Frignito, reports that antisocial, delinquent and criminal activity frequently results from sexual stimulation by pornography. "The Philadelphia municipal court," he notes, "has case histories in which sexual arousal from smutty books led to criminal behavior from vicious assaults to homicide. Some of these children did not transgress sexually until they read suggestive stories and viewed lewd pictures of licentious magazines.'

One of the most celebrated sociological thinkers of this century, Pitirim Sorokin, states that obscene advertising sent through the mails "certainly contributes a tangible share to the growth of juvenile deliquency, to the too early and too erotic sexual life of the wild portion of our youth, and to the cult of cynicism, vandalism and sterile rebellion.

The passage of the proposed legislation ought not be made to wait upon the establishment of a causal link between reading prurient materials and antisocial behavior, because a "cause" can never be shown, if by "cause" one means quantitative exactitude. Unlike physical science, behavioral science is not capable of producing mathematical exactness. Human motivations cannot be assigned precisely relative strengths or certain values or quantitatively exact weights. "The anatomy of human motivation is essentially so impenetrable, appositely notes the appellates brief in Ginsberg versus the State of New York, "that it is questionable whether many social occurrences in the realm of crime can be so 'proved' to be the effect of a particular cause, if by

proof is meant a demonstration affording the certainty attainable in the physical sciences." Professor Robert M. MacIver sums up the limitation of the behavioral sciences in his work, Social Causation: "One conclusion that has emerged in the course of our inquiry," he writes, "is that the discovery of the causes of social phenomena is progressive and always approximate, always incomplete edge... however far we probe, remains imperfect."

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Moreover, in a nuanced and thoughtful summary of the views of some psychiatrists, Dr. Willard Gaylin of the Columbia University Psychoanalytic Clinic stresses a distinction in the Yale Law Journal, that has telling relevance for the consideration before us. The distinction that Dr. Gaylin makes is between reading pornography and permitting the reading of pornography. Psychiatrists see the permission to read pornography as clearly destructive. "To openly permit implies parental approval and even suggests seductive encouragement. If this is so of parental approval," Dr. Gaylin continues, "it is equally so of societal approval-another potent influence on the developing ego. Is not the Government, by transferring prurient solicitations through the mails, equivalently, at least in the mind of the unsophisticated youngster, permitting the reading of pornography? Is not Congress, and society at large, by failing to enact legislation to regulate this flow, also equivalently permitting-even endorsing the reading of pornography ?

Every teenager, it should be noted, is not required to be corrupted in order for the State to take action. Justice John M. Harlan, concurring in Roth v. United States said, "Even assuming that pornography cannot be deemed ever to cause, in an immediate sense, criminal sexual conduct the State can reasonably draw the inference that over a long period of time, the indiscriminate dissemination of materials, the essential character of which is so to degrade sex, will have an eroding effect on moral standards."

The preservation of the morals of youth is a necessary objective of organized society because society must be empowered to ensure the conditions of its own viability. Too many of the young of today do not have the self-discipline, judgment and critical faculties to withstand the appeals of the material in question. The appellee's brief in Ginsberg v. New York puts this matter well: "The brutalization of spirit and the vulgarizing of youthful emotional sensibilities are enough to call for the counteraction of the community . . . since, in the long run, the pervasive barbarization of moral tone and the arrest of moral development at a preadult level is the inevitable prelude to institutional decline ...

The administration's proposal, then, should not be conceived of as antisin legislation. Authorities have stated that when the underaged are conditioned by continuing exposure to injurious sexual materials their moral deterrent to objectionable conduct is enfeebled. A certain percentage of individuals drift into antisocial acts, habits, and omissions. Public morality is an indivisible whole, as indicated in the U.S. brief in the Roth case. "One cannot safely corrupt that part dealing with sexual morality without adversely affecting the moral force which governs society in other ways. . . . The breaking down of the respect for morality weakens the 'morale' and the entire fabric

of respect for law. . . . The cumulative effect of circulating material likely to corrupt morals creates a long run risk of bad conduct."

In sum, there exists a large body of evidence and authority attesting that such material as proscribed by the administration's measure, along with other factors, exerts a significant, morbid influence on teenage development and behavior. The more emotionally unstable, highly suggestible or sexually aggressive a teenager is, the more the influence will be felt, the more it will be carried into antisocial acts, and the greater the consequent institutional decline.

One institution seriously affected by the current pornographic tidal flood is the family. The family is the foundation of society; it ultimately determines the viability of society. By its nature pornography undermines the family because it preaches that men and women are sexual objects, and that they are to be exploited for their hedonistic yield. This undermines the efforts of parents exercising their rights and duties to educate children as to the meaning of human sexuality. From time immemorial, the Judaeo-Christian tradition and the courts have supported the historical principle of parental authority relating to the religious, moral, social, intellectual, emotional and sexual development of minor offspring. "Parents' claims to authority in their own households to direct the rearing of their children," observed the High Court (Ginsberg v. State of New York) "is basic in the structure of our society." In the celebrated Prince v. Commonwealth of Massachusetts case, the Court ruled: "It is cardinal with us that the custody, care and nurture of the child reside first in the parents whose primary function and freedom include preparation for obligations the State can neither supply nor hinder."

The free functioning of parents is hindered by prurient solicitation through the mails. "The teenage mind, particularly the erotic or unstable teenage mind, in the contest of sexual excitement, like the mind agitated by the cry of fire in the crowded theater, is in a state of unreason and disposed to immediate action” notes the State of New York brief to Ginsberg. "The cry of fire in a crowded theatre is so exciting that reason as a counterrestraint has no opportunity to operate. Similarly, the effect of sexually exciting materials on the mind of an unstable or erotic teenager is like the action of flame on wood. In such circumstances, excitement is so captivating and distracting that reason is atomized, submerged or deflected into inactivity." Reason, in other words, is not sufficiently developed to act as an effective critical and disciplining counterforce.

The State should feel fully free to enact forms of legislative restriction which confirm and assist the parental function, as the High Court has ruled (Ginsberg v. State of New York). Those who have the primary responsibility for children's well being, the Court correctly stated, "are entitled to the support of laws designed to aid the discharge of that responsibility."

The State, moreover, independently of parents, has its own interest in the well-being of youth, as has been set forth by Chief Judge Stanley H. Fuld (People v. Kahan):

While the supervision of children's rearing may best be left to their parents, the knowledge that parental control or guidance cannot always be provided and society's transcendent interest in protecting the welfare of children justifies

reasonable regulation of the sale of material to them. It is therefore altogether fitting and proper for a state to include * * * special standards, broader than those embodied in legislation aimed at controlling dissemination of such material to adults.

It would be a bankrupt jurisprudence which failed to support the rearing function of parents and failed to protect the condition of its own viability because it could not distinguish between the legitimacy of barring dissemination to youth of materials that may be constitutionally sold to adults.

The distinction between what constitutes prurience for adults and prurience for the underaged is valid. The High Court correctly sanetioned the doctrine of "variable obscenity." This doctrine rests on the premise that obscenity is to be ascertained contextually rather than conceptually, that is, by reference to the recipient group, not simply by an analysis of "the average person" in abstracto. Material which is protected for distribution to adults is not necessarily constitutionally protected for distribution to children.

The legal justification for this view is abundant. "Minors constitute a class founded upon a natural and intrinsic distinction from adults,” ruled the Court in People v. Walton, "and legislation peculiarly applicable to them is necessarily right for their protection." This echoes Prince v. Massachusetts which established the proposition that the first amendment and the 14th amendment of the Federal Constitution permit the State regulatory authority of a wider latitude of control over children than over adults. The leading libertarian theoretician of the first amendment now alive, moreover, has judged that regulations addressed to children need not conform to the requirements of the first amendment in the same way as those applicable to adults. "The World of Children," notes Thomas I. Emerson, "is not strictly part of the adult realm of free expression."

The States independent concern with the well-being of youth has special justification and importance in these times when the debilitation of the family and the expanding extra-familial sources of influence so widely obtain-like peer groups, disk jockeys, overstimulative music, drug-taking sessions, erotic literature and films.

The administration's proposed bill would prohibit, as an invasion of the privacy of the home, the use of the mails for transmitting sexually oriented advertising into one's residence against the occupant's will. The sanctity of a man's home is so rooted in the JudaeoChristian tradition and the collective conscience of our people as to be ranked as a fundamental right. "Certainly the safeguarding of the home does not follow merely from the sanctity of property rights." notes Justice John M. Harlan. "The home derives its preeminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted constitutional right. This view that a number of constitutional rights undergird the right of a man to the privacy of his home is justified by a series of court cases. The specific guarantees in the Bill of Rights have penum bras or protected zones adjacent to the specific guarantees them selves, zones formed by emanations from the substantive rights them selves. Thus the first amendment in its insistence on the privacy of