In the case of Manuel Enterprises v. Day, 370 U.S. 478 (1962), the Supreme Court questioned the authority of the Postmaster General to engage in administrative censorship, and it has been the policy of the Department under Postmaster General O'Brien and his two immediate predecessors to avoid such censorship activities by the Department, leaving it to the courts to decide the issue in cases brought before them under the criminal statute. The administrative proceeding, however, has been an effective device for curtailing the flow of pornography from foreign countries. The constitutional questions raised in the Manuel case do not obtain with respect to mail from foreign countries.

In Roth v. U.S., 354 U.S. 476 (1957), the basic test for obscenity was laid down by the Supreme Court in terms of that which to the average person, applying contemporary community standards, predominantly appeals to the prurient interest. The judgment as to standards of the community can best be made by the members of the jury in each case, and the benefit of a jury is provided the accused when we resort to criminal prosecution rather than the administrative process.

The Founding Fathers of our Nation wisely protected the citizen in the privacy of his home by the constitutional protection against unreasonable searches and seizures. A stranger may not enter one's home uninvited. But the stranger may inject himself into one's home by using the postal system. If he uses the outside of the mailing piece to record his defamatory, scurrilous or indecent expressions, the postmaster may observe this and withhold it from delivery as a violation of either the defamatory statute, § 1718 of Title 18, U.S.C., or of the law which prohibits indecent matter on the outside cover of mail, § 1463 of Title 18. However, if the writing is sent in an envelope under seal as first-class matter, the postmaster has no opportunity or authority to examine the contents, and must deliver the mail without delay. More to the point, however, is the fact that most of the advertising material complained of, although quite offensive in itself, does not meet the tests for obscenity laid down by the Supreme Court. That being the case, the Department is powerless to move against the purveyors of the overwhelming majority of materials about which there is complaint. So the Department is in the uncomfortable position of assisting the advertiser in reaching into the homes of many citizens who are affronted by the advertising which they see once the mail is delivered to them.

The question that faces us then is whether, short of criminal prosecution for mailings of obscenity, there is anything that the Post Office Department can do to eliminate or at least reduce the traffic in objectionable but non-obscene materials. In any legislative attempt to impede the free circulation of printed matter, particularly in the area of sex-related materials, we are confronted with the strict constitutional limitations laid down by the Supreme Court in the series of cases running from Roth v. U.S., in 1957, down through Ginzburg v. U.S. in March of last year.

Ginzburg v. U.S. was one of three obscenity cases decided by the Supreme Court on the same day last year. Another was Mishkin v. New York, 383 U.S. 502, and the third was Memoirs v. Massachusetts, 383 U.S. 413. In Memoirs, the Court emphasized once more the constitutional requirement of proof that the offending material is "utterly without redeeming social value” before it can be declared obscene under the law. The book in this case "Memoirs of a Woman of Pleasure" (also known as "Fanny Hill") was found to appeal predominantly to a prurient interest in sex, and to be patently offensive because it affronts contemporary standards relating to the description or representation of sexual matters; but the lower court was reversed because it had failed to find that the book was, also, utterly without redeeming social value. The Supreme Court said:

"A book cannot be proscribed unless it is found to be utterly without redeeming social value. This is so even though the book is found to possess the requisite prurient appeal and to be patently offensive. Each of the three Federal constitutional criteria is applied independently; the social value of the book can neither be weighed against nor cancelled by its prurient appeal or patent offensiveness. Hence, even on the view of the court below that Memoirs possessed only a modicum of social value, its judgement must be reversed as being found on an erroneous interpretation of a federal constitutional standard." [Italic supplied.]

I cite this language of the Court to demonstrate the lengths to which we must go before excluding offensive sex materials from the mails. One of our most treasured rights under the Constitution is the right of free speech and free press. What is objectionable to some may be acceptable to others; the clear teaching of these obscenity cases in the Supreme Court is that we may not legally prohibit publications merely because they offend the general populace. It is necessary to

establish that the materials are completely devoid of redeeming social value. In meeting that test, the Supreme Court in the Ginzburg case provided a useful tool by holding that the presence or absence of a social value may be determined according to the style of advertising employed by the seller. In so ruling the Supreme Court showed concern for those who are exposed to objectionable advertising. At page 470, it made the following observations on this point:

"***The deliberate representation of petitioner's publications as erotically arousing for example, stimulated the reader to accept them as prurient; he looks for titillation, not for saving intellectual content. Similarly, such representation would tend to force public confrontation with the potentially offensive aspects of the work; the brazenness of such an appeal heightens the offensiveness of the publications to those who are offended by such material. And the circumstances of presentation and dissemination of material are equally relevant to determining whether social importance claimed for material in the courtroom was, in the circumstances, pretense or reality-whether it was the basis upon which it was traded in the marketplace or a spurious claim for litigation purposes. * * *" We share the concern of this Committee in the significant increase in distribution of sex-oriented matter during the past several years. For example, during the past year the Post Office Department alone received approximately a quarter of a million complaints from people throughout the United States bitterly protesting the receipt of sex-oriented advertising matter in the mails. This is an increase of about two hundred thousand complaints over the figure of five years ago. And many of these complaints are from parents of minor children. Needless to say, we cannot devise our own ground rules as to what constitutes obscenity, but necessarily must apply the various tests laid down by the courts.

The ultimate decisions as to what constitutes obscenity must, therefore, lie with the courts, proceeding under the constitutional test prescribed by the Supreme Court. A vital element of the test for obscenity is community standards, notwithstanding the added tool given us under the Ginzburg case. Ginzburg does not disturb the three-pronged test of Roth in determining violations of the postal obscenity law, and that is (1) patently offensiveness, (2) no redeeming social value, and (3) appeal to prurient interest. Essentially, these tests give recognition to the community consensus of tolerance with respect to sex-oriented materials.

We believe that in this area the Commission could perform a valuable service. The Commission could be of estimable help in developing acceptable evidence of community thinking and limits of tolerance on such matters. Furthermore, we believe the Commission might well marshall the necessary information from communities across the United States from which to arrive at a reliable determination of community standards acceptable to the courts.

Additionally, an objective study by such an impartial Commission may very well provide the foundation upon which to build a program to dispel the fears of censorship. Hopefully, the Commission could make a real contribution toward determining the relationship between the availability of pornographic materials and antisocial behavior, particularly as it relates to juveniles. The charge is often made that pornography is a direct danger to public morals, most particularly as a contributor to juvenile delinquency. However, these charges need to be supported by concrete evidence, utilizing the research and opinion of experts in the field of criminology, psychology, and sociology, as well as the experience of religious workers, who often have the most intimate and immediate knowledge of the effects of pornography on adolescent conduct and development.

We are hopeful the contemplated 16-member Commission would attract the best thinking of members of the public, legal profession, and those in mass media, so as to lead the way to an even more vigorous enforcement of obscenity laws on the Federal, State and local levels in keeping with the rights accorded all people under the First Amendment.

Mr. DANIELS. The committee will stand adjourned until Monday morning, April 24th, when the hearings will continue.

(Whereupon, at 12:30 p.m., the committee adjourned, to reconvene at 10 a.m., Monday, April 24, 1967.)

CREATING A COMMISSION ON OBSCENITY AND

PORNOGRAPHY

MONDAY, APRIL 24, 1967

HOUSE OF REPRESENTATIVES,
SELECT SUBCOMMITTEE ON EDUCATION

OF THE COMMITTEE ON EDUCATION AND LABOR,

Washington, D.C. The subcommittee met at 9:30 a.m., pursuant to recess, in room 2257, Rayburn House Office Building, Hon. Dominick V. Daniels (chairman of the subcommittee) presiding.

Present: Representative Daniels, Representative Albert.

Mr. DANIELS. The Subcommittee on Education will come to order to continue with hearings on H.R. 2525 and related bills to create a Commission on Obscenity and Pornography.

Last Thursday, the subcommittee was fortunate in hearing from some very well qualified and knowledgeable witnesses. This morning we are very grateful for the presence of some other distinguished guests who are here to give us the benefit of their valuable experience and knowledge in this area. I know that we are about to receive further important information from these gentlemen.

STATEMENT OF FRED M. VINSON, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE

Mr. DANIELS. We are fortunate this morning to have with us the Assistant Attorney General of the Criminal Division of Department of Justice, Mr. Fred M. Vinson.

Mr. Vinson, will you step forward to the witness table. If you have associates with you this morning, they may sit alongside of you... Mr. VINSON. I have with me Mr. Kleinman and Mr. Anderson, but I think they can sit where they are.

Mr. DANIELS. I notice you have a prepared statement. You may either read the prepared statement or if you wish, you may submit your statement for the record and testify orally. You may proceed in any manner you think will be most beneficial to the committee. Mr. VINSON. Fine. If I may, Mr. Chairman, I will submit the prepared statement for the record and attempt to highlight it orally, if that is satisfactory to the committee.

Mr. DANIELS. It is. Without objection, the statement of Mr. Vinson will follow his oral testimony in the record.

Mr. VINSON. Thank you, Mr. Chairman. It is a pleasure to be back before this committee. I last appeared before you to discuss this same subject, control of obscenity, in the fall of 1965. Since that time there has been one very significant development and refinement in the

law.

51

Last spring, the Supreme Court handed down its publicized decision in Ginzburg versus United States. This decision is noteworthy to those of us in law enforcement because it develops the concept of pandering as a factor and aid in criminal obscenity determinations.

"Pandering" is defined by the Court as "the business of purveying textual or graphic matter openly advertised to appeal to the prurient interests of customers." Where evidence of pandering exists, it can support the determination that material is obscene even though in other contexts the material would escape condemnation.

Thus, a distributor of borderline obscenity, who represents his materials as erotically arousing, can, for the first time, be taken at his word. By making evidence of pandering a decisive consideration in these close criminal cases, we feel that the Supreme Court has provided Federal prosecutors and local prosecutors with a very useful tool. For some time now, the focus of our Federal prosecutive attention has been on the mass-producers and the nationwide distributors of commerical obscenity. These are the people who try to walk the line between obscene and protected speech and consequently, it is in prosecutions involving these people that the close cases have generally arisen. It is also here that we believe the pandering concept enunciated by the Court will have its greatest usefulness.

Because of the generally protracted nature of major obscenity cases, the effects of the Ginzburg decision will be seen only gradually. In the meantime, I know that the committee will be interested in what the Department of Justice has been doing.

Since I last spoke to you, we have had several major prosecutive successes both in the district courts and at the appellate level. Two Federal cases are now before the Supreme Court and another is on appeal to the eighth circuit. Four other major cases are awaiting trial in Cleveland, Ohio; in Houston, Tex.; in Minneapolis, Minn.; and in San Diego, Calif. All but one of the cases I have named are against large nationwide publishers and distributors. In addition, we have a number of other mass producers and mass distributors under investigation.

Our recent investigations have shown us that a relatively small number of distributors are responsible for the great bulk of the nationwide traffic in commercial obscenity. These commercial operators are large and they are well financed. They appear to accept the risks and the large expense of criminal prosecution as a normal incident of their business operations. They employ competent and experienced counsel and major Federal obscenity prosecutions are therefore long and hard fought.

As a consequence, where large commercial distributors are concerned, obscenity control has been a slow business. This is particularly so because conviction and sentence at the trial level seldom deter the large distributor from continuing to distribute materials similar to those adjudged obscene. As a result, we must generally wait until a convicted defendant has exhausted his appeals before we can expect any halt in his offensive distributions.

Thanks to the Supreme Court's decision in Ginzburg, the focus of judicial attention has turned squarely upon the conduct of those who traffic in offensive materials. Prosecutors are just now beginning to experience the benefits of this change in emphasis. As more of our prosecutions are passed on by appellate courts and as the impact of

Ginzburg becomes more manifest, I believe that the risks of trafficking in commercial obscenity will become increasingly unacceptable.

I have attempted to highlight the recent developments in the law of obscenity as well as to point out the areas in which I see some hope for the future. Now let me turn to the bill before the committee, H.R. 2525. H.R. 2525 creates a 16-member Commission on Obscenity and Pornography. Eight of the members are to be appointed by the President, four by the Speaker of the House and four by the President pro tempore of the Senate.

The duties of the Commission are fourfold. The Commission's mandate is first to analyze present laws pertaining to obscenity and to evaluate and recommend definitions of "obscenity." Secondly, it is to ascertain the methods employed in distributing obscenity and the volume of traffic in obscene materials. Thirdly, it is charged with studying the effect of obscenity upon the public and its relationship to crime and other antisocial behavior, with special emphasis on minors. Lastly, it is to recommend any needed legislative, administrative action or other appropriate action.

Unlike past commission bills, H.R. 2525 contains no specific language emphasizing the importance of participation by State and local authorities, nor does it provide for the study of State and local lawenforcement problems.

Mr. DANIELS. At that point, Mr. Attorney General, have you taken a look at section 6, subparagraph (b) in the bill?

Mr. VINSON. Section 6?

Mr. DANIELS. Yes, on page 5 of the bill.

Mr. VINSON. Yes, sir, the consulting powers of the Commission. I actually had reference to section 5. I suppose that you could read section 5(a)(1) broadly enough to include among the Commission's duties an analysis of State and local legislative approaches to the problem of obscenity control. I would certainly recommend, however, Mr. Chairman, that in addition to considering possible State and local legislative reforms, the Commission also study other methods for improving the effectiveness of State and local enforcement efforts.

Mr. DANIELS. Well, of course, the bill does provide that the Commission, in carrying out its duties under the Act, may consult with Governors, Attorneys General, and other representatives of State and local governments and private organizations as it deems advisable. It is permissive.

Mr. VINSON. Yes, sir. I merely state that in view of the importance of State and local participation in any effective enforcement program I would recommend that specific language be included in the bill directing the Commission to study how such participation can best be achieved. In this way I hope we can get a really coordinated approach to the problem.

We recognize that major distributors of obscenity can best be dealt with through the exercise of Federal power. It is for that reason that we have focused our attention upon these major nationwide operators. At the same time, we do know that the State and local governments have capabilities, through the exercise of their police powers, that the Federal Government does not possess in this area. They can tailor efficient forms of action for controlling the local sale of obscene materials. Local law enforcement also has the virtue of being swifter than Federal criminal action.