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Hon. David C. Treen, Louisiana
Hon. Paul S. Trible, Jr., Virginia
Hon. Guy Vander Jagt, Michigan
Hon. Harold L. Volkmer, Missouri
Hon. William C. Wampler, Virginia
Hon. G. William Whitehurst, Virginia
Hon. Charley Whitley, North Carolina
Hon. Jamie L. Whitten, Mississippi
Hon. Lyle Williams, Ohio
Hon. Bob Wilson, California
Hon. Larry Winn, Jr., Kansas
Hon. Lester L. Wolff, New York
Hon. Antonio Borja Won Pat, Guam
Hon. John W. Wydler, New York
Hon. Chalmers P. Wylie, Ohio
Hon. Clement J. Zablocki, Wisconsin
Hon. Leo C. Zeferetti, New York


MEMORANDUM ON SENATE BILL 1722 (To reform Federal Criminal Code)

Senate Bill 1722 contains two provisions for controlling obscen

ity and sexual abuse of minors, Sections 1842 and 1844.

if it is

the intent of Congress to effectively legislate in this area, and

provide workable legal and procedural guidelines for the enforce

ment of these crimes, then the statutes must be in accordance with

prevailing authority as announced by the United States Supreme

Court and must also provide definitions and jurisdiction which

allows federal authorities to act in the most effective and compre

hensive manner.

The provisions now existing is Sections 1842 and

1844 are legally inadequate in many respects. Many provisions fail

to correctly state the law applicable to the First Amendment area,

and many others adopt a position which would frustrate law enforce

ment and allow obscenity and child abuse to remain unprosecuted.

The following is a brief analysis of specific provisions of Sections

1842 and 1844 and a substitute for these sections which incorporate

amendments to comply with the law and provide for effective and

fair enforcement of the intent of Congress.


Disseminating Obscene Material

The Offense

1) Subsection 1842(a) defines the elements of he offense. This definition of elements is legally deficient in failing to include any requirement of scienter. The U.S. Supreme Court held in Smith v. California, 361 U.S. 147 (1959), that a statute regulating obscenity must provide for an element of guilty knowledge on the

90-231 O - 82 -- 13

part of the offender. The present federal obscenity statutes provide for "knowingly" violating the law, and the Supreme Court has construed such requirement as knowledge of the "character" of the material and knowledge of the "content and character" of the material. In Mishkin v. New York, 383 U.S. 502, at 51012 (1966), the Supreme Court upheld the New York law's provisions which required "knowledge of the character" of the material involved. In Hamling v. United States, 418 U.S. 87, at 11920 (1974), the Court approved a federal district court jury instruction that the defendants must have "knowledge of the character of the materials." The Supreme Court of Ohio has recently upheld the Ohio statutory requirement that an offendor have "knowledge of the character of the material or performance involved" in State of Ohio v. Burgun, 56 Ohio St.2d 354, 384 N.E.2d 255 (1978). Several other state and federal decisions have approved the use

of the word "character" to describe the requisite scienter. The Supreme Court has used the words knowledge of "content" and "character" interchangeably in its decisions and has never invalidated a statute or instruction using either descriptive word. in Hamling, supra at 120, the Court noted its earlier statement in Rosen v. United States, 161 U.S. 29, at 41-42 (1896), that: "Congress did not intend that the question as to the character of the paper should depend upon the opinion belief of the person who, with knowledge or notice of its contents, assumed the responsibility of putting it in the mails of the United States." The Hamling decision, supra at 123, finally makes the following general statement: "It is constitutionally sufficient that the prosecution show that a defendent had knowledge of the contents of the materials he distributed, and that he knew the character and nature of the materials."



It is therefore mandatory that Section 1842 (a) contain some element of scienter, and the most appropriate wording would be "with knowledge of its content and character" in order to incorporate the exact wording of the Supreme Court and allow the presumptions and proofs of this element which now exist in case law to continue to assist the understanding of the law rather than frustrate it and cause unnecessary litigation and appeals.

(2) Subsection 1842(a) also defines the elements of the offense

to the conduct subject to criminality. The present language makes it an offense if a person "disseminates" obscene materials to a minor or "to any person in a manner affording no immediately effective opportunity to avoid exposure to such material" (1842(a)(1)(A) and (B)). This language is a radical departure from present federal obscenity statutes which forbid the use of the mails, common carriers, express companies, interstate and foreign commerce for disseminating obscene matter to anyone by any means. This language adopts the rejected individual views of Supreme Court members of Redrup v. New York, 386 U.S. 767, at 769 (1966), which was to become the recommendation of the Presidential Commission on Obscenity and pornography, whose report was soundly rejected by the Senate ten years ago. These provisions, in fact, open a Pandora's Box of trouble for federal enforcement

authorities. The federal authorities have historically investigated and prosecuted, if at all, only those major cases of mass distribution, mail order abuse, major distributorships, and organized crime involvements in the obscenity trade. The federal government, especially in light of the restrictions on its mail and interstate and foreign commerce jurisdictions, would seldom, if ever, have occasion to deal with a local situtation where a minor received the material or where its display was intruding on a person who could not avoid it. These ultimate reaches of obscenity are the practical exclusive realm of local law enforcement. This subsection (1842(a)(1)) should be eliminated and replaced with a standard prohibition against abusing federal jurisdiction with obscenity for any reason and by or to any person. This would preserve the scope of the present federal involvement in safeguarding the federal interests in the mails and comerce. Further, subsection 1842(a)(2) makes it a crime as "to any person" only if it is "commercially disseminated." This added burden on the enforcement is not in keeping with present federal involvement and would allow a large segment of obscenity abuses to go unpunished.

It is therefore suggested that the crime of obscenity provide that "A person is guilty of an offense if, with knowledge of its content and character, he disseminates obscene material to any person." It would seem to be an embarrassment to the Congress to enact a law which has built-in and obvious loopholes which would allow the problem sought to be corrected to instead grow with vigor and loom in the face of a powerless government and populace. Furthermore, any federal statute is likely to become a model for the states and the present provisions would set a poor example in that respect. In order for people to look up to Congress as the leader in this area, federal statutes must be both effective and fair under the Constitution and not a license for pornographers to become wealthy and powerful.


(3) Subsection 1842(b) defines various terms as used in the statute. As discussed above, division (b)(1), "commercially disseminate," should be eliminated entirely and the definition in (b)(3), "disseminate", should be improved to include all the methods of modern traffic in obscene materials. The definition of "disseminate" could be improved by stating:

"(A) to issue, provide, mail, sell, circulate, transfer,
distribute, dispense, lend, display, exhibit, send, or
broadcast, whether for profit or otherwise; or (B) to
manufacture, publish, advertise, produce, reproduce,
transport; (C) to offer or agree to do (A) or (B); or
(D) to possess any material with intent to do (A) or (B)."


Division (b)(2), "community," defines the community, for purposes of judging "contemporary community standards," as "the State or local community in which the obscene material is dissemi

nated." This would be an about-face from present federal obscenity law which requires federai juries to judge the obscenity by the standards of the federal district in which the offense takes place. Federal juries may consider the standards of the State, but are not bound by them. in fact, the Supreme Court decided in Smith v. United States, 431 U.S. 291 (1977), that federal prosecutions can take place even in states that do not criminalize obscenity. In that case, the Court recognized the separate interest of Congress to preserve the integrity of its jurisdiction over the mails and commerce regardless of the state's efforts to protect its own citizens from all manner of abuse. The states, in fact, may wish to rely on strong federal protection from many aspects of the problem and legislate only on certain segments of distribution or certain types of material. The Court in Hamling v. United States, 418 U.S., at 105-06, explained:



The result of the Miller cases, therefore,
matter of constitutional law and federal statutory con-
struction, is to permit a juror sitting in obscenity cases
to draw on knowledge of the community or vicinage from
which he comes in deciding what conclusion "the average
person, applying contemporary community standards"
would reach in a given case. Since this case was tried
in the Southern District of California, and presumably
jurors from throughout that judicial district were avail-
able to serve on the panel which tried petitioners, it
would be the standards of that "community" upon which
the jurors would draw.

The Supreme Court, in Smith and in Hamling, recognized the right under present law for federal juries to give what weight they deem appropriate to the standards of the state as evidenced by the state law and morality. This right would continue under the new code if the language was corrected to reflect the duty of federal juries to decide federal cases by the standards of the federal law and district.

It is therefore suggested that "community" be defined

"the federal district in which the offense occurs." This would preserve the federal interests in enforcing federal law and protect the right of juries to draw on recognizable knowledge of those standards as well as those of the state or locality.



(4) The definition of "obscene material" in division (b)(5) is contrary to the United States Supreme Court pronouncements and is invalid and unconstitutional. This definition must be changed to reflect the mandatory guidelines for defining obscenity announced in Miller v. California, 413 U.S. 15, at 24 (1973). If this definition is not changed, and becomes law, it would not only become a brick wall against convictions but may well be challenged as unconstitutional in declaratory judgment actions by prosecutors and law

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