occupant mail of this kind of material, you would avoid that trouble. Is that a fair statement?

Mr. REHNQUIST. With all deference, I am not certain that I agree with his analysis of the presumption, but it is basically a drafting problem.

Certainly, if the members of the committee felt that the result could be better achieved by making it a substantive prohibition rather than a presumption, I am sure the administration would have no objection to that.

Mr. MIKVA. If we are going to do anything like this, I would rather do it up front. Again, I think it gets us into some additional substantive problems, because at that point we are back in the Butler case, Butler v. Michigan, in which the court held that you do not put everybody down to the level of a 3-year-old.

If we really ban occupant mail, you are, in effect, saying that in order to protect the minors we must see to it that none of this mail goes out unless it is adressed to a specific adult.

Mr. REHNQUIST. It seems to me that the effort of the administration bill here is to try to do something that does not run into the Butler problem and at the same time does give us a means to attack the serious problem that comes from delivery of this stuff to minors.

I think that the thrust of the administration bill is to perhaps cause some of the transporters or publishers to somewhat revise the way they do business. But I don't think it has the result of simply forcing them out of business or substantively interfering with the right of those adults who want to get this sort of stuff to get it.

I think if you try to make sure that nothing is changed in the way of doing business and if that is your hypothesis and you say, consistent with that, we will try to prevent this getting into the hands of minors, you basically get nowhere.

So, I think the problem is one of adjustment within constitutional limits, perhaps requiring some changes in the way of doing business, but not throttling the thing, and still doing something effectively to prevent it getting into the hands of the minors.

Mr. MIKVA. Along that line, if we could find some way of prohibiting the sale or transfer of mailing lists or put some kind of prod on them to worry about mailing lists that contain the names of minors, then the law that Congress passed last year, for example, would be a lot more effective in terms of people getting off the lists.

Today when somebody takes advantage of that law, he finds himself having been sold to another purveyor and ending up continuing to receive the stuff. Whereas, if we could put some blocks to the transfer of the list, I think we would be getting at the root of the problem.

That is the part that appeals to me about H.R. 11031. If we could somehow force the purveyor or mailer to worry that there might be some minors on the list, he might have to worry about buying the list in the first place.

On the other hand, I am inclined to agree with Senator Goldwater's remarks. I have difficulty in trying to make this presumption stand up. It says that if you put something in an insecure wrapper it is presumed that it is going to go to the minor and family. I don't think that is a reasonable presumption at all. I don't assume that the mail that comes to my house is for my kids unless it is addressed to them.

If it says "Occupant", I assume it is for me.

Mr. REINQUIST. To the extent that Senator Goldwater's suggestion is that the thing be redrafted so as to make it a substantive ban, I think there the administration feeling is that this is a drafting problem on which the wishes of the committee should certainly be observed.

I do not understand Senator Goldwater's remarks to extend so far as to suggest that because the presumption might create drafting problems we ought to back away from a prohibition against occupant mail of this sort. I think the administration would wish to be firm on that. It is the intention of the bill to ban occupant mail of this sort.

Mr. MIKVA. Mr. Rehnquist, I am confused. I thought you said the reason it does not "ban occupant mail" is because you realize the problem of Butler v. Michigan.

Mr. REHNQUIST. I am sorry if I gave that impression. It is our feeling that we could just as easily and just as constitutionally have put in a substantive prohibition.

It was just done this way as a choice of drafting. Our views of constitutional law may differ, but to me it seems to be a drafting problem and the substantive result is achievable constitutionally one way or the other.

Mr. MIKVA. Thank you.

Mr. POFF. Mr. Chairman, will my colleague yield?

Mr. MIKVA. I will be glad to yield.

Mr. POFF. These mailing lists are today hot items in the marketplace. However, they would be a lot less attractive if the prospective purchaser of the list were fearful that there were six or eight minors on the list, and that by making an indiscriminate mailing to the entire list he might run afoul of the new law.

Mr. MIKVA. That is right. That is the part of H.R. 11031 that appeals to me. I think the kernel of the problem that we are trying to handle is the mailing list.

If we can get at the traffic in lists, then I think the laws that are already on the books would prove much more effective than they are. The question is, can we do that without building ourselves some kind of straitjacket that we either will rue as a matter of policy or the court may rue as a matter of the Constitution?

Mr. KASTEN MEIER. I might ask the witness whether the Justice Department feels that it is sufficiently knowledgeable about the operation of the offenders, the prospective offenders here, to make a judgment on what deterrents would be effective on mailing lists.

I say that because I think the Commission on Obscenity and Pornography, while it suggests an interest in this, has come up with no real conclusion about it yet.

I would be interested in whether the Justice Department has a solid view about this, Mr. Mahony.

Mr. MAHONY. Yes; we do have a view.

In our judgment, the advertising bill that is now before the committee represents the most effective approach that can be taken to really make a dent in the pornography industry, because the key to their success depends on their ability to advertise.

The more blatantly they can advertise the material, the more successful financially they are going to be. If we can make a dent in their ability to represent the material as prurient, we will, in my judgment,

over a 2- or 3-year period take a significant step toward decreasing their ability to market pornography.

Mr. KASTEN MEIER. What form of advertising, though? Mail advertising? Solicitation or in magazines and the periodicals?

Mr. MAHONY. The bill that we have before this committee is designed to deal with the unsolicited commercial advertisement that comes into the home through the mail. That is the primary thrust of the bill.

I don't think this bill has any constitutional problem at all. I have no fears that it will be held unconstitutional.

Mr. KASTENMEIER. Practically speaking, as suggested by Mr. Mikva, if there were some way we were quite certain we could interrupt the traffic in mailing lists, would you be satisfied that that would be effective?

Mr. MAHONY. I think this is another approach. We have toyed with that approach. We have discussed it. We have not put anything in writing.

I think that if restrictions were placed on people who compile mailing lists, whether they be States that compile them through driver license registrants, whether it be Time magazine or anybody, if the individual or the corporation that is compiling the list is required to cull out the minors, I think you will make a substantial stride in protecting juveniles from getting these things.

This does not go to the pornographer as such. It goes to the individual who originally compiles the list.

I do think that legislation could be enacted along these lines that will have an effect in keeping minors' names off the lists ultimately to go to the pornographers.

Mr. KASTENMEIER. I yield to the gentleman from Virginia for a question.

Mr. POFF. Thank you, Mr. Chairman.

During the course of direct testimony this morning by other witnesses, some views were expressed concerning advertisement mail and the words "solicited" and "unsolicited" were used.

I wonder if the Department would have any objection if on line 7 of the first page of H.R. 11032, before the word "advertisement," the word "unsolicited" were inserted.

Mr. REHNQUIST. Those of us who were here discussed that during the lunch hour.

I don't think it ever occurred to us until you mentioned it and counsel mentioned it during the lunch hour.

The Department has no objection to that. I think it would tighten the bill somewhat without losing any of its punch, which is certainly just the thing we are looking for.

Mr. POFF. I thank the witness.

Mr. Chairman, before I conclude, may I compliment him on the manner and style in which he has made his presentation. I think he has been most scholarly, most instructive, most cooperative, and most helpful.

We would like to be in the posture of calling upon your expertise in the future. I suppose the record will remain open for several days for that purpose. Thank you.

Mr. KASTENMEIER. I am informed a number of members are introducing another variation of the antismut bills. While this is the principal presentation before this committee, I would hope that we could call on you, perhaps at a later date. As the resolution of these issues approaches some finality, we may then require your views on aspects of the several bills.

Mr. HUTCHINSON. Mr. Chairman, before the witness leaves, I would like to return to the discussion of putting the word "unsolicited" before the word "advertisement" on line 7 of the first page of H.R. 11032.

It occurs to me that if that were done, you would be opening a loophole as big as all outdoors for the reason that it would then not be a crime to subscribe to a magazine which has obscenity in it because if you are on a subscription list you pay a subscription of 50 cents or something like that, then what comes to you, you cannot say is unsolicited. You are paying for it.

Therefore, as I say, it would, in my opinion, make H.R. 11032 completely worthless.

Mr. BIESTER. Will the gentleman yield?

Mr. HUTCHINSON. Yes; I yield.

Mr. BIESTER. That would be true as to an advertisement which appeared in a magazine to which one regularly subscribes. It does not occur with respect to direct mail.

Mr. HUTCHINSON. That is absolutely true. The way for the business to keep going and not fall into a crime would be to publish a magazine and get people to subscribe to it.

Mr. KASTENMEIER. If the gentleman will yield, would the gentleman forbid solicited advertisement?

Mr. HUTCHINSON. Under this statute, I understood it was to be a criminal act for anybody "knowingly (to) deposit in the mail or transport in interstate or foreign commerce an advertisement . . . intended to appeal to a prurient interest in sex.'

If you put the word "unsolicited" in there, as I say, I suggest that you are opening up a way to get around the statute.

per

Mr. REHNQUIST. It is our feeling, Mr. Hutchinson, if I apprehend exactly what the effect of this change would be, that you would be mitting the sending of material otherwise banned, if it had been requested.

It does seem to me that is perfectly consistent with the concept that the main thrust of this bill is to prevent intrusion of this stuff on people who don't want it. I would have some trouble with the notion that if I, an adult, free, 21, et cetera, want to note Ralph Ginzburg publishes a bunch of salacious books and want to get his catalog, he would commit a crime if I wrote him and he sent his catalog to me.

It may be unpalatable—you know, many of us, I think, would not do that, but it does not seem to be consistent with the privacy orientation of this bill; we really ought to ban requested material of this sort that is not actually obscene.

Mr. HUTCHINSON. Earlier I understood you to say that if H.R. 11032 were on the statute books, in a relatively short period of time, 2 or 3 years, you would completely dry up this kind of business.

Mr. MAHONY. I did not say "completely dry up." I said that you would make a significant stride in putting them out of business, be

cause it is our experience that their ability to sell the underlying material

Mr. HUTCHINSON. It would not be significant if you put the word “unsolicited” in the bill.

Mr. MAHONY. I think it would be, yes, sir, I do.

Mr. KASTEN MEIER. If there are no other questions, I have a conclusion.

There are three bills, two of which are before us, three bills which constitute a package.

Is there any particular need for us to present them separately or for us to act on them separately? Should not two of the three, or indeed all three of them in some sense be put together as a legislative approach?

Mr. REHNQUIST. I am certain, Mr. Chairman, that the administration does view the bills as a package. I would add that because I understand the third one is not pending before this subcommittee and because it is basically a Post Office bill rather than one that is being pushed by the Department of Justice, I am not prepared, certainly, on the details of the third bill. I am sure there are other far more capable witnesses than I who could testify.

Mr. KASTENMEIER. I was interested in what led to your dividing the areas up into the three components in terms of legislation, whether it was necessary or desirable or whether there were some compelling reasons for the division.

Mr. MAHONY. I think the thrust behind the three proposals of course, the minors bill stands by itself but with respect to the other Justice Department bill before this committee, it represents what we believe is a legislative solution to an immediate problem.

We have to be able to cope with this salacious advertising that we cannot get under the current obscenity laws. We do need this new piece of legislation.

The Post Office bill has more far-reaching implications. In other words, it would allow an individual to send his name in and be put on a list which would be compiled by the Post Office Department and then distributed for a fee, to people who mail out the type of material defined in the statute.

The difference substantially in the Post Office bill is that it will take time to work up the mechanics for the procedures to take effect. Also, it is a voluntary approach where the individual can say, "I don't want any of this material to come into my house."

Our bill is of a more immediate nature and it operates in the criminal area to deal with what is really the big problem in this area, it is the advertising that comes into the home unsolicited. This is what we are all getting the complaints about, not so much about the books or movies themselves.

Mr. MIKVA. Mr. Chairman, along that line though, somewhere along the line the committee has to exercise the legislative function in deciding whether these bills as they are, or in some different fashion, or perhaps a whole new product altogether, should be recommended to the full committee.

I think we ought to know a little more about the third bill before the Post Office Committee. All the things that we talked about today, I think, are included in there. I am sure that some of the considerations