Feighan, Hon. Michael A., a Representative in Congress from the Fishman, Irving, Director, Division of Import Compliance, Office of Irving, John F. X., executive director, National Council of Juvenile May, Timothy J., General Counsel of the U.S. Post Office Depart- Miller, Hon. Jack R., a U.S. Senator from the State of Iowa. Mundt, Hon. Karl E., a U.S. Senator from the State of South Dakota_ Speiser, Lawrence, director, Washington office, American Civil American Book Publishers Council, Inc., statement of "Havana Launches Clean-Up; Sex Magazines Given Toss," Letter from Senator Karl E. Mundt, dated December 28, 1966-- Berry, E. Y., a Representative in Congress from the State of South Dakota, prepared statement of.. Clancy, Hon. Donald D., a Representative in Congress from the State of Ohio, prepared statement of... Frignito, Nicholas G., M.D., medical director, County Court of Phila- delphia, prepared statement of....... Kubie, Dr. Lawrence, psychiatrist, prepared statement of Langen, Hon. Odin, a Representative in Congress from the State of Minnesota, prepared statement of. May, Timothy J., General Counsel, U.S. Post Office Department, Montague, Henry B., U.S. Chief Postal Inspector, prepared state- Shake, Randel, national child welfare director, American Legion, Shields, Mrs. John D., national president, National Council of Vinson, Fred M., Jr., Assistant Attorney General, Criminal Division, Work, Martin H., executive director, National Council of Catholic Wyatt, Hon. Wendell, a Representative in Congress from the State III CREATING A COMMISSION ON OBSCENITY AND PORNOGRAPHY THURSDAY APRIL 20, 1967 HOUSE OF REPRESENTATIVES, SELECT SUBCOMMITTEE ON EDUCATION Washington, DC. The subcommittee met at 10 a.m., pursuant to call, in room 2257, Rayburn House Office Building, Hon. Dominick V. Daniels (chairman) of the subcommittee) presiding. Present: Representatives Daniels, Mink, Meeds, Albert, Erlenborn, Scherle, and Steiger. Also present: Representative Roman C. Pucinski and Daniel Krivit, counsel. Mr. DANIELS. The Select Subcommittee on Education will come to order. We are meeting this morning for the express purpose of considering H.R. 2525 and related bills. Hearings will be held today and on April 24. The bill under consideration is a bill to create a commission on obscenity and pornography. In the 89th Congress the Senate passed similar legislation. Last year a related House bill was favorably reported in subcommittee, but due to the lateness of the session, it was not possible for the bill to be considered by the full committee. Many Americans are deeply aware of the problems of obscenity in our modern society. In our common desire to meet the challenge posed by this billion-dollar big business, many of us tend to gravitate toward simple panaceas, or try to pinpoint vague, causal relationships. Yet careful reflection must tell us that there is no quick or easy solution. Some of the problems of obscenity regulation raise complex questions which penetrate deeply into the roots of our sacred first amendment principles. But as discussion and debate continue over meaningful legal definitions, the inexorable flow of noxious, hard-core pornography continues to fill our newsstands, pours unsolicited into our homes, and threatens to contaminate young and impressionable minds. The principal bill to be considered provides for a National Commission, composed of 16 members, eight to be appointed by the President, four by the Speaker of the House, and four by the President Pro Tempore of the Senate. Following a thorough study of the problem, to last about 1 year, the Commission will be asked to recommend appropriate and effective constitutional means for dealing with traffic in pornography. Under the provisions of H.R. 2525, the Commission would be charged with the following duties: (1) with the aid of leading con 1 stitutional law authorities, to analyze the laws pertaining to the control of obscenity and pornography; (2) to ascertain the methods employed in the distribution of obscene and pornographic materials and to explore the nature and 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; (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 interfering with constitutional rights. I envision that this proposed Commission will be composed of representatives from all segments of our society and, therefore, will truly reflect the diverse views of our national community. It must be understood that this Commission is not intended to serve as a national board of censorship, nor is this Commission, directly or indirectly, to stimulate indiscriminate prosecutions without due process of law. There should be absolutely no doubt that the purposes and duties as set forth in H.R. 2525 are to be carried on without any interference with constitutional freedoms of speech and press. I am not unmindful of the deep shame that befalls a nation, or a community, when overzealous public officials with honest motives suppress great works of art and literature. Thankfully, truly great ideas can seldom be obliterated. It was not until 1957 that the U.S. Supreme Court, for the first time in its history, squarely faced the unresolved problem of official censorship of obscenity. In the now famous Roth case, the Supreme Court stated that obscenity was not pro ected by the first amendment. Our highest court rejected its former Hicklin rule as too restrictive under the first amendment because it judged obscenity "by the effect of isolated passages upon the most susceptible persons." The Court then proceeded to raise the constitutional standard by establishing the following test: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests. Since 1957 there have been many Federal and State court decisions trying to further delineate this classic definition of obscenity. We all recognize the strong public interest in encouraging the dissemination of nonobscene literature. Coequally, there is our imperative obligation to deal effectively with hard-core pornography. Somewhere between these two extremes is an area of obscenity that experts agree also needs thoughtful analysis. This is the problem of variable obscenity. Variable obscenity is judged by its appeal to, and effect upon, the audience to which the material is primarily directed. This may explain why some believe that material is never inherently obscene, but obscenity varies with the circumstances of its dissemination. This proposed Commission could make an outstanding contribution in a study of this most difficult area. I have been informed that the practical difficulties of variable obscenity become most apparent when law enforcement officials and magistrates at preliminary hearings are forced to make legal judgments. Last year, in an effort to set forth a comprehensive definition of obscenity, the New Jersey State Legislature grappled with the problem and finally passed legislation to establish several specific tests for obscenity against which publications and other materials would be measured. The purpose and intent of this bill was to bring an element of certainty to an area of law which, admittedly, is most uncertain. Governor Hughes, one of our Nation's finest governors, reluctantly vetoed this legislation declaring Thus, what started out to be a simple measure of obscenity, necessarily developed into a formula of extreme complexity. And, it is this union of the simple on the one hand, with the undeniably complex on the other, that creates much of the difficulty about this bill. Governor Hughes then recommended that a commission be established forthwith Which would undertake a careful review of the existing obscenity statute, and of the most recent court decisions concerning this subject, with a view to developing such additional legislation as may be required. I am confident that other States which have shared similar experiences, and dedicated Federal agencies, would welcome a national commission on obscenity and pornography. In discussing this very subject-obscenity-the late, great Justice Felix Frankfurter declared: "We should not burn the house down to roast the pig." I would like to add the following as a postscript: "Nor should we let that pig run wild." By enactment of this important legislation, we would be putting that "pig" right in the oven where it properly belongs. (Text of H.R. 2525 follows:) [H.R. 2525, 90th Cong., 1st sess.] A BILL Creating a Commission to be known as the Commission on Obscenity and Pornography Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, FINDING OF FACT AND DECLARATION OF POLICY SECTION 1. The Congress finds that the traffic in obscenity and pornography is a matter of national concern. The Federal Government has a responsibility to investigate the gravity of this situation and to determine whether more effective methods might and ought to be devised to control the transmission of materials which are morally and culturally corrosive and otherwise harmful to the public, and particularly minors, through instrumentalities which are constitutionally subject to Federal regulation. It is the purpose of this Act to establish an advisory commission whose purpose shall be, after a thorough study, to recommend advisable, appropriate, effective, and constitutional means to deal effectively with such traffic in obscenity and pornography. COMMISSION ON OBSCENITY AND PORNOGRAPHY SEC. 2. (a) ESTABLISHMENT.-For the purpose of carrying out the provisions of this Act, there is hereby created a commission to be known as the Commission on Obscenity and Pornography (hereinafter referred to as the "Commission"). (b) MEMBERSHIP OF THE COMMISSION.-The Commission shall be composed of sixteen members, appointed as follows: (1) Eight by the President; (2) Four by the Speaker of the House of Representatives; and (3) Four by the President pro tempore of the Senate. (c) VACANCIES.-Any vacancy in the Commission shall be filled in the same manner as the original appointment was made (d) ORGANIZATION OF COMMISSION.-The Commission shall elect a Chairman and a Vice Chairman from among its members. |