So I think an action program, quite apart from the legislative side of it, is very important and I think the sooner we start on it, the better.

Mr. DANIELS. Senator, again thank you very, very much.
Off the record.

(Bill proposed by Senator Miller follows:)

[S. 1584, 90th Cong., 1st sess.]

A BILL To create a commission to be known as the Commission for Elimination of Pornographic Materials

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

FINDINGS OF FACT AND DECLARATION OF POLICY

SECTION 1. The Congress finds that the publication and dissemination of pornographic materials is a menace to the moral fiber of the American people. All levels of government-Federal, State, and local-bear a responsibility in eliminating this menace, although it is recognized that this responsibility can be effectively carried out only through the cooperative efforts of all citizens. It is the purpose of this Act to establish a national commission to investigate the traffic in pornographic materials, analyze the laws and regulations relating to this traffic, and make recommendations for improved laws and other methods of control and elimination of such materials, and provide information needed to promote a coordinated national effort to eliminate pornographic materials from our society.

ESTABLISHMENT OF THE COMMISSION FOR ELIMINATION OF PORNOGRAPHIC MATERIALS

SEC. 2. (a) For the purpose of carrying out the provisions of this Act, there is hereby created a commission to be known as the Commission for Elimination of Pornographic Materials (hereinafter referred to as the "Commission").

(b) Service of an individual as a member of the Commission or employment of an individual by the Commission as an attorney or expert in any business or professional field, on a part-time or full-time basis, with or without compensation, shall not be considered as service or employment bringing such individual within the provisions of section 281, 283, 284, 434, or 1914 of title 18 of the United States Code, or section 190 of the Revised Statutes (5 U.S.C. 99).

MEMBERSHIP OF THE COMMISSION

SEC. 3. (a) NUMBER AND APPOINTMENT.—The Commission shall be composed of twenty-five members, appointed by the President, as follows:

(1) Two from the Senate (one from each major political party);

(2) Two from the House of Representatives (one from each major political party);

(3) One from the Post Office Department;

(4) One from the Department of Justice;
(5) One from the Department of Defense;
(6) Three from the clergy;

(7) One medical doctor who shall be prominent in the field of psychiatry; (8) One who shall be a prominent representative of the book publishing industry;

(9) One who shall be a prominent representative of the magazine and periodical publishing industry;

(10) One who shall be a prominent representative of the newspaper publishing industry;

(11) One who shall be a prominent representative of the motion picture industry;

(12) One who shall be a prominent representative of the radio and television industry;

(13) One attorney who shall be a chief prosecutor of a city or county government;

(14) One attorney who shall be prominent in the practice of law;

(15) Three educators (one who shall be prominent in the field of primary education, one who shall be prominent in the field of secondary education, and one who shall be prominent in the field of higher education);

(16) Two parents serving actively in a parent-teacher association; and (17) Two judges from the State or local benches.

(b) VACANCIES.-Any vacancy in the Commission shall not affect its powers, but shall be filled in the same manner in which the original appointment was made.

(c) CONTINUATION OF MEMBERSHIP UPON CHANGE OF STATUS.-A change in the status or employment of any person appointed to the Commission pursuant to subsection (a) of this section shall not affect his membership upon the Commission.

ORGANIZATION OF THE COMMISSION

SEC. 4. The Commission shall elect a Chairman and a Vice Chairman from among its members.

QUORUM

SEC. 5. Thirteen members of the Commission shall constitute a quorum.

COMPENSATION OF MEMBERS OF THE COMMISSION

SEC. 6. (a) MEMBERS OF CONGRESS.-Members of Congress who are members of the Commission shall serve without compensation in addition to that received for their services as Members of Congress; but they shall be reimbursed for travel, subsistence, and other necessary expenses incurred by them in the performance of the duties vested in the Commission.

(b) MEMBERS FROM THE EXECUTIVE BRANCH.-The members of the Commission who are in the executive branch of the Government shall serve without compensation in addition to that received for their services in the executive branch, but they shall be reimbursed for travel, subsistence, and other necessary expenses incurred by them in the performance of the duties vested in the Commission.

(c) MEMBERS FROM PRIVATE LIFE.-The members from private life shall each receive $100 per diem when engaged in the actual performance of duties vested in the Commission, plus reimbursement for travel, subsistence, and other necessary expenses incurred by them in the performance of such duties.

STAFF OF THE COMMISSION

SEC. 7. The Commission shall have power to appoint and fix the compensation of such personnel as it deems advisable without regard to the provisions of the civil service laws and the Classification Act of 1949, as amended.

EXPENSES OF THE COMMISSION

SEC. 8. There is hereby authorized to be appropriated, out of any money in the Treasury not otherwise appropriated, so much as may be necessary to carry out the provisions of this Act.

DUTIES OF THE COMMISSION

SEC. 9. (a) INVESTIGATION, ANALYSIS, AND RECOMMENDATIONS.-It shall be the duty of the Commission

(1) to explore methods of combating the traffic in pornographic materials at the various levels of governmental responsibility;

(2) to provide for the development of a plan for improved coordination between Federal, State, and local officials in the suppression of such traffic; (3) to determine ways and means of informing the public as to the origin, scope, and effects of such traffic, and of obtaining public support in its suppression;

(4) to secure the active cooperation of leaders in the field of mass media for the accomplishment of the objectives and purposes of this Act:

(5) to formulate recommendations for such legislative, administrative, or other forms of action as may be deemed necessary to combat such traffic; and

(6) to analyze the laws pertaining to traffic in pornographic matters and materials, and to make such recommendations to the Congress for appropriate revisions of Federal laws as the Commission may deem necessary in order to effectively regulate the flow of such traffic.

(b) REPORT.-The Commission shall report to the President and the Congress its findings and recommendations as soon as practicable and in no event later than Janaury 31, 1969. The Commission shall cease to exist sixty days following the submission of its final report.

POWERS OF THE COMMISSION

SEC. 10. (a) HEARINGS AND SESSIONS.-The Commission or, on the authorization of the Commission, any subcommittee or member thereof, may, for the purpose of carrying out the provisions of this Act, hold such hearings and sit and act at such times and places, administer such oaths, and require, by subpena or otherwise, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memorandums, papers, and documents as the Commission or such subcommittee or member may deem advisable. Subpenas may be issued over the signature of the Chairman of the Commission, or such subcommittee, or any duly designated member, and may be served by any person designated by such Chairman or member. The provisions of sections 102 through 104 of the Revised Statutes of the United States (2 U.S.C. 192-194) shall apply in the case of any failure of any witness to comply with any subpena or to testify when summoned under authority of this section.

(b) ADVISORY COMMITTEES.-In carrying out its duties under this Act, the Commission

(1) may constitute such advisory committees within States composed of citizens of that State, and

(2) may consult with Governors, attorneys general, and other representatives of State and local government and private organizations, as it deems advisable.

Any advisory committee constituted pursuant to this subsection shall carry out its duties without expense to the United States.

(c) OBTAINING OFFICIAL DATA.-The Commission is authorized to secure directly from any executive department, bureau, agency, board, commission, office, independent establishment, or instrumentality, information, suggestions, estimates, and statistics for the purpose of this Act, and each such department, bureau, agency, board, commission, office, establishment, or instrumentality is authorized and directed to furnish such information, suggestions, estimates, and statistics directly to the Commission, upon request made by the Chairman or Vice Chairman.

Mr. DANIELS. Our next witness is Mr. James J. Kilpatrick, editor of the Richmond News Leader. He is also writing a nationally syndicated column, "A Conservative View," that appears in the Washington Evening Star.

Mr. Kilpatrick is the author of some half-dozen books that deal in part with constitutional law, among them, "The Smut Peddlers," published by Doubleday in 1960. This is both a study of pornography and review of the laws governing obscenity in the United States.

He has lectured upon the conflicts between obscenity and the first amendment freedoms before the University of Richmond and the University of Virginia Law Schools.

Mr. Kilpatrick is currently serving on the Virginia Commission on Constitutional Government, as he has since 1958. He is one of the very few nonlawyers ever invited to address the Virginia Judicial Council.

In 1962 he played a prominent part in drafting Virginia's revised laws on obscene material.

In 1965 he was awarded the annual Liberty Bell Award of the Richmond Bar for his writing on legal matters.

On occasions Mr. Kilpatrick has testified as an expert witness for both the prosecution and defense in obscenity trials.

In 1967 he was named an honorary member of the Virginia Bar Association.

We will now hear from Mr. James J. Kilpatrick.

STATEMENT OF JAMES J. KILPATRICK, EDITOR, THE RICHMOND NEWS LEADER

Mr. KILPATRICK. Thank you, Mr. Chairman, Mr. Albert, Mrs. Mink, gentlemen:

I doubt very much that I can be of assistance to the committee in its inquiry, largely because I approach this whole subject of obscenity

with so many doubts in my mind. My feeling is that some of the questions of constitutional law and legislative policy that are implicit in your study are very likely unanswerable questions, or at least they are questions that defy enduring answers.

In my own view, the very word "obscenity" is incapable of accurate statutory or judicial definition. The wisest minds of the U.S. Supreme Court have been struggling with a definition for close to a hundred years. Mr. Justice Brennan thought he had it nailed at last in the Roth case, but his definition wiggled away.

Later on, in the Jacobellis case, he was to concede that his lexicography of Roth was not perfect, and he was to acknowledge that the boundaries of pornography lie along "a fine and uncertain line." The closest a member of the court has come in recent years was in the statement by Mr. Justice Stewart that he knew pornography when he saw it, but this wasn't it. He was then talking about the movie "The Lovers."

From the standpoint of criminal law, which demands at the very least that the essence of a crime be spelled out, the problem of defining obscenity is devilishly difficult. What was legally obscene yesterday is not legally obscene today, and no man can say whether it will be legally obscene tomorrow. In the past 10 years alone, we have seen the works of the Marquis de Sade, and the novels of Lawrence, Joyce, and Miller emerge from the dark shadows of Paris and into the bright lights of Brentano's.

A decade ago, as a matter of law, these works were obscene. Today, as a matter of law, they are not obscene. Questions of law to one side, one is inclined to ask: Were they ever "obscene"? Or are they still "obscene"? I myself do not profess to know, because the truth is that obscenity, like beauty, lies in the eye of the beholder.

From the standpoint of legislative policy, the problem of barring obscenity is made dangerously difficult, of course, by the flat commandment of the first amendment that Congress shall make "no law abridging the freedom of speech, or of the press.

I should like to interpolate enough to say that so long as Mr. Justice Black and Mr. Justice Douglas are sitting on the U.S. Supreme Court, it seems to me highly unlikely that any statute that might be recommended by your proposed study commission is likely to be upheld, because, as Mr. Justice Black has said time after time, he reads "no law abridging" to mean "no law abridging."

But over a period of many years, to be sure, the courts have held that a man's freedom of speech gives him no freedom to speak obscenely. Thus obscenity has been carved out, like "fighting words," as an area not subject to constitutional protection. But if such an area is to be carved out through general law, rather than through the case law of particular facts, a statutory definition must be found. And this means presumably that you must find something more than mere adjectives-lewd, lascivious, prurient, corrosive, harmful, and

the like, because these also are slippery fish in the sea of language. You cannot net them.

I am a working newspaperman. I have made my living as a writer for nearly 30 years. And whenever I see you gentlemen beginning to fiddle around with statutes that undertake to define classes of speech which are prohibited speech, I become acutely uneasy.

Taking one thing with another, and put on my choice between dirt and censorship, I would opt for the dirt. The dirt, at least, can be seen; and I can avoid it, or sweep it up, or paint over it, or accept it as one of the smelly irritants of a free society. But you cannot always see censorship in action; you may not know of its silent exercise. Those of us who believe in a free society, and all of us are committed to it, ought to believe in a society that is free for ideas that are offensive to us.

But to say this is to say nothing especially new or helpful. For I am equally sobered by the conviction that obscenity does exist, whether or not I can define it or you can define it or the courts can define it. It exists like radio waves, which are in the air outside this room. It exists like smog, which I can feel but not see. In better images, because they go to the law of the matter, obscenity exists as surely as beauty, ugliness, disorderly conduct, common nuisances, and incitement to riot exist.

None of these is subject to precise definition either; but my impression is that courts have upheld various ordinances regulating exterior architecture, billboards, outside signs, and the like, predicated solely upon esthetic considerations.

The antilitter laws have nothing to do with public health, safety or welfare; they are concerned with public ugliness. It is commonplace for a city to condemn and remove a dilapidated structure because the structure is an "eyesore"--and someone must define what is meant by an eyesore.

By the same token, it is in most cities a criminal offense to create a "noise" or a "raucous noise" during certain hours, and surely there is involved in all of these antinoise ordinances a first amendment question, but the courts have found no reason to set them aside.

Closer to the subject at hand, the offense of indecent exposure has a long history of legislative and judicial support.

To suggest that it is impossible to write a valid law on obscenity or pornography, because these are subjective terms susceptible to transitory meanings, seems to me plainly wrong. If juries and judges are competent to determine what is noise, what is raucous noise, what is disorderly, what is indecent, what is ugly, and what are the obligations of that mythical being known at law as the "prudent man," they are equally competent, in a given case, to determine when a defendant is trafficking in obscenity.

And there is no question in my mind that Congress has the constitutional power, under its power to regulate commerce and its power to establish post roads, to legislate in this field. I interpolate again a comment on the present Supreme Court. That a Federal power exists has been the view, as I read the cases, of seven of the present nine members of the Court; only Justices Black and Douglas have dissented from that particular aspect of the legal problem.

To be sure, tainted meat and tainted ideas cannot be viewed as equally subject to regulation under the commerce clause. The first