[Senate Hearing 109-280]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-280
 
WHY THE GOVERNMENT SHOULD CARE ABOUT PORNOGRAPHY: THE STATE INTEREST IN 
                    PROTECTING CHILDREN AND FAMILIES

=======================================================================

                                HEARING

                               before the

                   SUBCOMMITTEE ON THE CONSTITUTION,
                    CIVIL RIGHTS AND PROPERTY RIGHTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                           NOVEMBER 10, 2005

                               __________

                          Serial No. J-109-51

                               __________

         Printed for the use of the Committee on the Judiciary


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                           WASHINGTON: 2006
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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                                 ------                                

   Subcommittee on the Constitution, Civil Rights and Property Rights

                    SAM BROWNBACK, Kansas, Chairman
ARLEN SPECTER, Pennsylvania          RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina    EDWARD M. KENNEDY, Massachusetts
JOHN CORNYN, Texas                   DIANNE FEINSTEIN, California
TOM COBURN, Oklahoma                 RICHARD J. DURBIN, Illinois
                    Ajit Pai, Majority Chief Counsel
               Robert F. Schiff, Democratic Chief Counsel



                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas.....     1
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     3
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     5
    prepared statement...........................................    35

                               WITNESSES

Harris, Leslie, Senior Consultant and Executive Director 
  Designee, Center for Democracy and Technology, Washington, D.C.    13
Manning, Jill C., Social Science Fellow, Heritage Foundation, 
  Washington, D.C., and Sociologist, Brigham Young University, 
  Provo, Utah....................................................    11
Paul, Pamela, Author, New York, New York.........................     7
Smolla, Rodney A., Dean, University of Richmond School of Law, 
  Richmond, Virginia.............................................     9
Whidden, Richard R., Jr., Executive Director and Senior Counsel, 
  National Law Center for Children and Families, Fairfax, 
  Virginia.......................................................    16

                       SUBMISSIONS FOR THE RECORD

Harris, Leslie, Senior Consultant and Executive Director 
  Designee, Center for Democracy and Technology, Washington, 
  D.C., prepared statement.......................................    28
Manning, Jill C., Social Science Fellow, Heritage Foundation, 
  Washington, D.C., and Sociologist, Brigham Young University, 
  Provo, Utah, prepared statement................................    38
Paul, Pamela, Author, New York, New York, prepared statement.....    41
Smolla, Rodney A., Dean, University of Richmond School of Law, 
  Richmond, Virginia, prepared statement.........................    58
Whidden, Richard R., Jr., Executive Director and Senior Counsel, 
  National Law Center for Children and Families, Fairfax, 
  Virginia, prepared statement...................................    78


WHY THE GOVERNMENT SHOULD CARE ABOUT PORNOGRAPHY: THE STATE INTEREST IN 
                    PROTECTING CHILDREN AND FAMILIES

                              ----------                              


                      THURSDAY, NOVEMBER 10, 2005

                              United States Senate,
Subcommittee on the Constitution, Civil Rights and Property 
                 Rights, of the Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:05 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Sam Brownback 
[Chairman of the Subcommittee] presiding.
    Present: Senators Brownback, Hatch and Feingold.
    Chairman Brownback. Good afternoon. The hearing will come 
to order. Thank you all for being here today. This is a hearing 
that has been scheduled I believe twice before, and I want to 
thank in particular the witnesses for their persistence in 
continuing to be willing to adjust schedules so they could be 
here to testify.

 OPENING STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM 
                      THE STATE OF KANSAS

    Chairman Brownback. The infiltration of pornography into 
our popular culture and our homes is an issue that every family 
now grapples with. Once relatively difficult to procure, it is 
now so pervasive that it is freely discussed on popular prime 
time television shows. The statistics on the number of children 
who have been exposed to pornography is alarming.
    According to recent reports, one in five children between 
the ages of 10 and 17 have received a sexual solicitation over 
the Internet, and nine out of 10 children between the ages of 
eight and 16 who have Internet access have viewed porn 
websites, nine out of 10 children, usually in the course of 
looking up information for homework.
    There is strong evidence that marriages are often adversely 
affected by addiction to sexually explicit material. At a 
recent meeting of the American Academy of Matrimonial Lawyers, 
two-thirds of the divorce lawyers who attended said that 
excessive interest and online pornography played a significant 
role in divorces in the past year. Pornography has become both 
pervasive and intrusive in print, and especially on the 
Internet. Lamentably, pornography is now also a multibillion-
dollar-a-year industry.
    While sexually explicit material is often talked about in 
terms of free speech, too little has been said about its 
devastating effect on users and their families. Today we hope 
to shed some light on what is happening to our society, 
particularly children and families, as a result of pornography. 
The Federal judiciary continues to challenge our ability to 
protect our families and our children from gratuitous 
pornographic images.
    Earlier this year, Judge Gary Lancaster of the Western 
District of Pennsylvania, threw out a 10-count indictment 
against Extreme Associates, purveyors of the vilest sort of 
pornography. The defendants were in the business of producing 
films that according to one report, ``even porn veterans find 
disturbing.'' A co-owner of Extreme Associates even boasted 
that the films which depict rape, torture and murder, 
represent, ``the depths of human depravity.'' He also proudly 
admitted that the films covered by the indictment met the legal 
definition of obscenity.
    Judge Lancaster not only dismissed the indictment, but also 
took the case as an opportunity to rule all Federal statutes 
regulating obscenities unconstitutional as applied to these 
admittedly infringing defendants. In order to achieve this 
result, Judge Lancaster cobbled together hand-picked strands of 
14th Amendment substantive process decisions from Roe v. Wade 
to Lawrence v. Texas, and ruled that the statutes at issue 
violated an unwritten constitutional right to sexual privacy.
    Even if one granted this spurious constitutional reasoning 
that such a right existed, it would not apply to the 
defendants, since they were producers and not consumers of the 
material in question.
    In contrast to the Federal judiciary, the Department of 
Justice has renewed its commitment to protecting our children 
and families from the harms of pornography. During Attorney 
General Gonzales's confirmation hearing he was asked if he 
would make it a priority to prosecute violations of obscenity 
statutes more vigorously, and he made a commitment to do so. In 
responding to other Senators' questions, he also stated, 
``Obscenity is something else that very much concerns me. I've 
got two young sons, and it really bothers me about how easy it 
is to have access to pornography.''
    I have young children too. I share the Attorney General's 
concern about children's access to pornography. I appreciate 
the efforts the Attorney General has made during his first year 
in office to combat this problem.
    Last spring Attorney General Gonzales reiterated the 
pressing need for urgent action to be given to pervasive 
violation of obscenity law, insisting that, ``Another area 
where I would advance the cause of justice and human dignity is 
in the aggressive prosecution of purveyors of obscene 
materials. I'm strongly committed to ensuring the right of free 
speech. The right of ordinary citizens and of the press to 
speak out and to express their views and ideas is one of the 
greatest strengths of our form of Government, but obscene 
materials are not protected by the First Amendment, and I'm 
committed to prosecuting these crimes aggressively.''
    The Attorney General has followed through on his promise in 
several ways, begun the widespread effort with an obscenity 
prosecution task force. I deeply appreciate those efforts and I 
support them.
    In previous hearings we have looked into the 
constitutionality of obscenity prosecutions and the 
distinctions between obscenity and speech according to 
established court precedent. Today we will focus on another 
interest the Government has in the matter of prosecuting 
obscenity, the demonstrable harm it effects on our marriages 
and families.
    I think most Americans agree and know that pornography is 
bad. They know that it involves exploitive images of men and 
women and that it is morally repugnant and offensive. What most 
Americans do not know is how harmful pornography is to users 
and to their families. I fear Americans do not fully know or 
appreciate the serious and imminent risk it poses to families 
and especially to children. I hope that through this hearing we 
will see just how mainstream pornography has become and the 
effects pornography has on family.
    Today we have five distinguished witnesses. The first is 
Pamela Paul. Ms. Paul is the author of the recently published 
book ``Pornified,'' which examines pornography's impact on men, 
women, children and families. She is a contributor to Time 
Magazine where she covers social trends and issues affecting 
the families. Ms. Paul, pleased to have you here. Her first 
book, ``The Starter Marriage and the Future of Matrimony,'' was 
named one of the best books of the year by the Washington Post 
in 2002.
    The second witness is Dean Rodney Smolla, the Dean of the 
University of Richmond School of Law. Dean Smolla graduated 
first in his class out of Duke Law School in 1978, and served 
as law clerk on the Fifth Circuit Court of Appeals. He is the 
author or co-author of 11 books including ``Free Speech in an 
Open Society.''
    The third witness today is Jill Manning, a practicing 
marriage and family therapist and Ph.D. candidate from Brigham 
Young University. She is a former Social Science Fellow at the 
Heritage University.
    The fourth witness today will be Leslie Harris, Senior 
Consultant and Executive Director Designee at the Center for 
Democracy and Technology. She has held a number of positions 
within the ABA and the ACLU, including Chief Legislative 
Counsel for the ACLU's Washington National Office.
    And finally we will have Richard Whidden, Executive 
Director and Senior Counsel at the National Law Center for 
Children and Families. He graduated from University of Alabama 
Law School in `89, went on to serve as Assistant Attorney 
General of Florida.
    I want to turn to my ranking member, Senator Feingold, for 
any opening statement that he might have.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman. I know you care 
a great deal about this issue and I respect your concern, and 
of course, many of us have concerns in this area.
    I fully support efforts to bring to justice those who would 
commit the horrendous crimes of child pornography and human sex 
trafficking. Congress has done a great deal of work in this 
area, as has the Justice Department, and I commend the 
dedicated prosecutors and investigators who have devoted 
themselves to the fight against child pornography and human sex 
trafficking. They are doing very important work and deserve our 
gratitude and our complete support.
    As a father as well, I also understand the importance of 
preventing children from obtaining or viewing explicit 
materials. It would be harmful to them, and I recognize the 
difficulty that parents face in this regard. Congress has 
repeatedly attempted to address this problem in the past, but 
unfortunately it has not done a very good job of passing 
legislation that is consistent with the First Amendment. If 
legislation goes beyond materials that constitute child 
pornography and obscenity, the constitutional hurdles become 
even greater.
    If Congress is to address these issues it is critically 
important that we avoid repeating our past mistakes. We must do 
all we can to end the victimization of children by child 
pornographers and to keep children from viewing inappropriate 
materials. But we must also ensure that any law Congress passes 
to address these problems will withstand First Amendment 
scrutiny.
    Our children deserve laws that will work and last, rather 
than be stricken from the law books before they ever take 
effect. It is an enormous waste of time and resources to pass 
an unconstitutional law, and at the end of the day it does 
nothing to address the serious problems we are attempting to 
solve.
    I have argued over and over again in the past 10 years that 
Congress must have due respect for the First Amendment, and I 
want to reiterate that again here today.
    I think my record is pretty good in terms of identifying 
statutes that are of doubtful constitutionality. I will 
continue to speak up when I believe that Congress is not paying 
close enough attention to constitutional issues.
    Protecting children from sexually explicit materials on the 
Internet is a particularly difficult problem. Many websites 
containing sexual content are located overseas, and U.S. legal 
prohibitions would simply drive more of those websites outside 
the United States beyond the reach of our laws. As a result, 
several respected commissions have concluded that Congress 
should take a different approach. We should, they say, 
encourage parental involvement, education about the use of the 
Internet and the voluntary use of filtering tools, which while 
not technologically perfect, can help parents manage their 
children's Internet experience. None of these approaches raise 
First Amendment concerns.
    At least so far, Mr. Chairman, we do not have specific 
legislative proposals in front of us that are related to this 
hearing. The subject of this hearing suggests, however, that we 
may at some point be faced with proposals that go well beyond 
what Congress can constitutionally undertake. I again say I 
hope we will not repeat our mistakes.
    But with that, I thank you, Mr. Chairman, for the time, and 
I welcome our witnesses, and I look forward to hearing our 
witnesses' testimony.
    Thank you, Mr. Chairman.
    Chairman Brownback. Thank you. I hope, if we are able to 
get to legislation, you will help us in the drafting of it. I 
did not think you would get there on the campaign finance bill, 
but you made it in front of the Supreme Court and cleared it on 
First Amendment, so maybe you can help me on this and where we 
can thread the needle right to make it through.
    Senator Feingold. I will help you on this one more than the 
one yesterday.
    [Laughter.]
    Senator Brownback. That is not a high bar, Senator, on that 
one.
    [Laughter.]
    Senator Brownback. Senator Hatch.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Thank you, Mr. Chairman.
    I want to welcome all of you witnesses here today. It means 
a lot to us that you are willing to testify.
    I first introduced legislation to restrict dissemination of 
obscene material in the 95th Congress during my first year I 
the Senate, and that was before the Internet even existed, some 
people say. What was the problem then has really become a 
crisis today, and ending in the right place requires starting 
in the right place. Pornography and obscenity present a problem 
of harm, not an issue of taste. Let me repeat that because we 
have to be on the right road to get where we need to go: 
pornography and obscenity present a problem of harm, not an 
issue of taste.
    The days are long gone when concerns about the impact of 
pornography consumption can be dismissed with cliches and jokes 
about the fundamentalist prudes imposing Victorian values. 
Actually, that attitude reflects real ignorance about the 
Victorians, but that discussion might be for a different 
hearing.
    [Laughter.]
    Senator Hatch. Whether it is high-fat foods, secondhand 
smoke or hard-core pornography, what we consume affects all of 
us. Pornography affects both consumers and our culture. 
Surveys, Government commissions, clinical research and 
anecdotal evidence have long confirmed that pornography 
consumption correlates with a range of negative outcomes. Its 
effects are protracted, progressive and profound. Witnesses 
testifying today will go into more detail about the evidence 
for how pornography harms consumers.
    The evidence for such harm was accumulating years ago at a 
time when the methods for producing, marketing and distributing 
porn were very well defined and somewhat stable. We now have 
the Internet, the most pervasive and anonymous medium ever 
devised by human beings. Pervasiveness and anonymity magnify 
the effect of pornography consumption on the consumer.
    One of the witnesses today has written a book titled 
``Pornified: How Pornography is Transforming Our Lives, Our 
Relationships, Our Families.'' A review of Ms. Paul's book 
appearing in the September 25th, 2005 issue of the San 
Francisco Chronicle said it shows that to discuss porn today is 
to discuss Internet porn.
    Another of our witnesses testifying today, and I am very 
happy that she is here, is Jill Manning, who comes from my own 
home State of Utah. She is doing her doctoral work specifically 
on the unique and devastating effects of Internet pornography. 
And I am proud to have you here, and will read your testimony.
    In addition, the pervasiveness and anonymity of the 
Internet expand the population of pornography consumers to 
include children. Let me be clear. The problem is not the 
Internet, the problem is pornography. But we must take 
seriously the unique and powerful ways the Internet can be used 
for evil, rather than for good. In addition to affecting 
consumers, pornography affects the culture. Cultural critic, 
Malcolm Mugridge, observed more than 25 years ago that America 
is more sex-ridden than any country in world history.
    Has the situation improved since then? Today as we head 
into the holiday season, obtaining the catalog of certain 
clothing companies will require a photo ID. A new survey by the 
Kaiser Family Foundation found that the number of scenes with 
sexual content on television has doubled in less than a decade. 
The highest concentration of sexual scenes is in shows that are 
most popular with teenagers. Someone will no doubt haul out the 
old argument that the television merely reflects but does not 
influence reality. The same Kaiser survey found that the 
percentage of so-called reality shows with sexual scenes is 
significantly lower than any other type of show. The percentage 
of reality shows with sexual scenes is less than half that for 
talk shows and less than one third that for drama shows or 
situation comedies.
    In 2001, Esquire Magazine published a long feature on what 
it called the ``pornigraphication''--I can hardly pronounce 
it--``of the American girl.'' Pornigraphication. There should 
be no need to invent such a word.
    Mr. Chairman, it is not possible rationally to argue any 
more that this is solely a matter of personal taste. It is a 
problem of harm, harm to individuals, to relationships and 
families, harms to families, harms to communities, and of 
course, to children.
    As a result, legislators must evaluate whether we have a 
responsibility to act. We all believe in the freedom of speech, 
no question about it. Mr. Chairman, you and I swore an oath to 
preserve and protect the Constitution, including the First 
Amendment, but the First Amendment is not an altar on which we 
must sacrifice our children, our families, our communities and 
our cultures.
    I want to thank you, Mr. Chairman, for holding this 
hearing, you and Senator Feingold for your work in this area. I 
want to thank you for the chance to participate in this 
important discussion and to hear from the distinguished panel 
of witnesses that you have assembled.
    I really welcome you all here, appreciate you being here. I 
have got other commitments that I have to keep at this time, 
but I wanted to come over and make those points and welcome you 
all, and I certainly will pay very strict attention to what you 
all have to say.
    Thank you so much, Mr. Chairman.
    Chairman Brownback. Thank you, Senator Hatch. I want to 
recognize your ground-breaking work in this field. For some 
period of time you have been here and on this for a long period 
of time. I wish we had had it solved by this point in time, but 
perhaps with Senator Feingold's help we are going to get it 
solved this time around, and I hope we can, and I hope we can 
work on that.
    Ms. Paul, I was very struck by the summation of your book 
that I read in the San Francisco Chronicle. I have heard it 
talked about in different places. It looks like you have done a 
lot of work studying the pornification of the society, and I 
look forward to your testimony.
    We will run the time clock at, why do we not run it at 6 
minutes just to give you an idea of how long you are going. I 
would like for you to hold it around that as much as possible 
so we can get a chance to do some questions, if I could ask 
that of each of the witnesses.
    Ms. Paul.

      STATEMENT OF PAMELA PAUL, AUTHOR, NEW YORK, NEW YORK

    Ms. Paul. Senator Brownback, Senator Feingold, and Senator 
Hatch, thank you so much for the opportunity to participate in 
this hearing. I have to say I do not think I ever imagined I 
would be testifying in front of Congress about pornography of 
all things, but after writing a story for Time Magazine about 
pornography's effects, I was compelled by the seriousness of 
what I uncovered to write a book on the subject. That book, 
``Pornified: How Pornography is Transforming Our Lives, Our 
Relationships and Our Families,'' was published in September of 
this year.
    As I hope will be understandable, I am going to refrain 
from using much of the graphic detail in this testimony that I 
document in my book, which will necessarily not give a complete 
picture of the damage that pornography does, but for those who 
wish to get a more complete and disturbing understanding of the 
impact pornography has, I am submitting my book along with this 
testimony.
    In researching my book I sought answers to some very simple 
questions. Who uses pornography and why? How does pornography 
affect people? Will looking at online pornography at age 9 
affect boys and girls when they reach sexual maturity? What is 
the impact of a pornified culture on relationships and on 
society as a whole?
    To find out the private stories that people suspect but 
never hear, experience but rarely talk about, I interviewed 
more than 100 people. In addition, I commissioned the first 
nationally representative poll conducted by Harris Interactive 
to deal primarily with pornography. It is the first poll to ask 
such questions as: Does pornography improve or harm the sex 
lives of those who look at it? Is using pornography cheating? 
And how does pornography affect children who view it?
    When opponents of pornography talk about the ways in which 
pornography affects people, they often talk about how 
pornography hurts women. But this leaves out an important 
point: pornography is also harmful to the men who use it. Men 
told me they found themselves wasting countless hours looking 
at pornography on their televisions and DVDs, and especially 
online. They looked at things they would have once considered 
appalling, bestiality, group sex, hard core S&M, genital 
torture, child pornography. They found the way they looked at 
women in real life warping to fit their fantasies that they 
consumed on screen.
    It was not only their sex lives that suffered. 
Pornography's effects rippled out, touching all aspects of 
their existence. Their relationships soured. They had trouble 
relating to women as individual human beings. They worried 
about the way they saw their daughters and girls their 
daughters' age. Their work lives became interrupted, their 
hobbies tossed aside, their family lives disrupted. Some men 
even lost jobs, wives and children.
    Men tell women that their consumption of pornography is 
natural and normal, that if a women does not like it, she is 
controlling, insecure, uptight, petty. But for many wives and 
girlfriends it becomes clear that the type of pornography men 
are into is all about men's needs, about what they want, not 
about their women or their relationships or their families. Not 
only does pornography dictate how women are supposed to look, 
it skews expectations of how they should act. Men absorb these 
ideals and women internalize them.
    According to the ``Pornified''/Harris poll, 6 in 10 women 
believe pornography affects how men expect them to look and 
behave, and it quite simply changes men's behavior. Where does 
he get the time? Already families, particularly dual-income 
couples, complain about how little time they have for their 
spouses and family. Imagine the toll that devoting 5 or so 
hours a week to pornography takes on family life, meals that 
could have been prepared and eaten together, homework that 
could have been poured over. Imagine the anxiety and tension 
caused to a mother who knows her husband is looking at online 
pornography, while his son is desperate for his father's 
company.
    That so many men consider pornography a private matter, 
hidden or downplayed, necessarily creates distance with wives 
and girlfriends. According to Mark Schwartz at the Masters and 
Johnson Clinic, no matter how you look at it, pornography is 
always a sign of disconnection. In his research he has seen a 
whole new epidemic, largely related to the Internet, of people 
using pornography to disconnect from their loved ones.
    At the 2003 meeting of the America Academy of Matrimonial 
Lawyers, as Senator Brownback mentioned, the attendees noticed 
a startling trend, nearly two-thirds of the attorneys present 
witnessed a sudden rise in divorces related to the Internet. 
Six in 10 were the result of a spouse looking at excessive 
amounts of pornography online. According to the association's 
president, 8 years ago pornography played almost no role in 
divorces in this country. Today there are a significant number 
of cases where it plays a definite part in marriages breaking 
up.
    Of course, many mothers and fathers, even those who use 
pornography themselves, are particularly disturbed by the idea 
that their children will look at pornography. Make no mistake, 
experts say there is no way parents can prevent their children 
from looking at pornography at a young age, as young as 6- to 
2-year-olds are now using Internet pornography, according to 
Nielsen/Net Ratings. Even if a parent uses a filtering program, 
children are likely to out-maneuver the software or see 
pornography at their local library or a friend's house or in 
school. Statistics show that about half if not all teenagers 
are exposed to pornography in one way or another. A 2004 study 
by Columbia University, found that 11.5 million teenagers have 
friends who regularly view Internet pornography and download 
it.
    Psychotherapists and counselors across the country attest 
to the popularity of pornography among preadolescents. 
Pornography is integrated into teenage popular culture. Video 
game culture, for example, exults the pornographic. One 2004 
video game, ``The Guy Game,'' features women exposing their 
breasts when they answer questions wrong in a trivia contest. 
The game does not even get an adults-only rating. Pornography 
is so often tied into video game culture and insinuates itself 
even into nonpornographic areas of the Web, it is very hard for 
a 12-year-old to avoid. Masters and Johnson's Clinical 
Director, Mark Schwartz, has seen 14- and 15-year-old boys 
addicted to pornography. It is awful to see the effect it has 
on them.
    Touring this country to promote my book I heard again and 
again from concerned parents. ``I know my 14-year-old son is 
looking at extreme hard-core pornography, but what can I do 
about it? He tells me he needs the computer for schoolwork.'' I 
have a 10-year-old daughter. I do not even want to think about 
what boys her age are learning about the opposite sex online.
    A pediatric nurse told me there was an incident in her 
practice in which toddlers acted out moves from a pornographic 
movie. A day's worth of nationwide headlines inevitably brings 
up stories of children encountering pornography at the library, 
child pornography arrests and school incidents in which 
teachers are caught looking at pornography on computers during 
school hours. It is terrible enough that adults are suffering 
the consequences of a pornified culture, but we must think 
about the kind of world we are introducing to our children.
    Certainly everyone, liberals and conservatives, Democrats 
and Republicans, can agree with the statement, ``It was not 
like this when we were kids.'' And I cannot imagine anyone 
would have that thought without simultaneously experiencing a 
profound sense of fear and loss.
    Thank you.
    [The prepared statement of Ms. Paul appears as a submission 
for the record.]
    Chairman Brownback. That is powerful testimony. I look 
forward to questions and answers.
    Dean Smolla, I hope I said your name correctly.
    Mr. Smolla. Yes, Senator, you did. Thank you.
    Chairman Brownback. Glad to have you here.

  STATEMENT OF RODNEY A. SMOLLA, DEAN, UNIVERSITY OF RICHMOND 
               SCHOOL OF LAW, RICHMOND, VIRGINIA

    Mr. Smolla. Thank you.
    I know the focus of this hearing is not on constitutional 
law as such, but on the nature of the harms associated with 
sexually explicit material. What I want to do is focus on the 
extent to which, as you think about possible legislation, you 
are permitted under existing constitutional doctrine to take 
that harm, which is undisputed, and use it as the predicate for 
justifying legislation, and the extent to which you are not, 
the extent to which existing First Amendment doctrine says 
while that harm may exist, you cannot make use of that to 
justify this particular type of legislation.
    The first think I want to do is just talk about a habit 
that all of us have, I have and most of us have, in referring 
to this area. We will use a word like, a phrase like ``sexually 
explicit,'' or we will talk about pornography or porn, or as I 
often do, pornography and obscenity. And I think all three 
Senators probably use those types of phrases as a compound, and 
it is natural, we all do.
    But First Amendment doctrine is more precise, and First 
Amendment doctrine takes the vast array of sexually explicit 
material that we know exists ubiquitously on the Internet. It 
exists on satellite television, cable television and so on. And 
it draws a sharp distinction under existing doctrine. Between 
that sexually explicit material that is legally obscene, which 
is really the only true First Amendment term of art, and that 
which is lewd or pornographic or sexually explicit, but does it 
make the three-part test of Miller v. California?
    The first important thing for you to think about is that 
the probability is that vast quantities of what is now on 
satellite, cable and the Internet, already meet the Miller 
standard. That is to say, someplace in some locality under 
community standards it can already be prosecuted, because it 
would already satisfy the Miller standard.
    So one sort of common sense thing to keep in mind is this 
may not be a matter of needing new legislation, it may simply 
be a matter of making the decision at the local level, the 
State level or the Federal level, to put more resources into 
prosecution under the Miller standard, which you are always 
free to do.
    More importantly, I think, what I would like to do is 
address this question: to what extent can you go beyond Miller? 
Are there pockets of this issue that you can address that allow 
you to pass legislation to get at material that is protected 
under the Miller standard? And the answer is, that if you want 
to go after this material there is some good news and bad news. 
The good news--and this is conjured up by Senator Feingold's 
remarks--is that the Supreme Court has already said that 
children are a special case, really in two senses.
    First of all, you can use filtering and filtering 
technology as a way of contending with this problem. That comes 
preapproved from the Supreme Court of the United States. It 
means if you put all of the various decisions of the last 7 or 
8 years together, that some combination of what parents do in 
the home and what libraries can do, which the Supreme Court 
said is permissible in the American Libraries case, that is one 
way of contending with it. And of course, there is no 
protection for trafficking in true child pornography. That is 
to say, when children are actors that are part of the 
presentation, that is a heinous exploitation of children and 
there is nothing whatsoever in the Constitution standing 
between efforts by Congress to bolster that effort.
    My last point, however, is the sort of bad news, if you 
will, if you want to aggressively go after this material under 
First Amendment doctrine. I would characterize it as having two 
important points. First of all, you cannot simply listen to 
evidence, as credible and convincing as I am sure it will be, 
that there are harms associated with the sexually explicit 
material, and then label those harms compelling governmental 
interest, and use that device to say, we can outlaw material 
protected under Miller, but nevertheless causing trouble in our 
society because we can meet the strict scrutiny test under the 
First Amendment and justify it by compelling governmental 
interest. That is not existing First Amendment doctrine.
    Rather, existing First Amendment doctrine says when you 
have a specific issue that you are dealing with, incitement to 
riot, threats to violence, libel, prior restraint, obscenity--
and there is a specific First Amendment test that sets forth 
existing, clear doctrines for dealing with that, that displaces 
the strict scrutiny test. The reason for that, the reason that 
is not a bad constitutional principle, is that there is a 
tremendous temptation for us to move against offensive speech 
of all kind, flag burning, speech that seems to promote 
terrorist ideals that we do not agree with, sexually explicit 
speech. The whole history of this country is wrapped up in the 
natural tendency that all of us have to know evil speech and to 
want to legislate against it. And the reason we have these very 
specific doctrines with these very demanding standards like 
Miller, is to prevent us from yielding to that temptation, and 
then attempting to justify it by saying, ``Well, there is a 
compelling interest to do it.'' The Supreme Court said that is 
not the way you are allowed to go. You should not feel bad 
about that as a constitutional constraint because as I said at 
the beginning, you have the tools already to deal with the 
problem addressing children, and to deal with material that is 
already obscene under Miller v. California, which is probably a 
large amount of material if there was the willpower and the 
social resources to go after it.
    Thank you, Senators.
    [The prepared statement of Mr. Smolla appears as a 
submission for the record.]
    Chairman Brownback. Thank you very much, Dean Smolla. That 
was very good and very succinct, and I will look forward to 
some questions to probe a little bit further with you what 
particularly we might be able to do on Internet type items.
    Ms. Manning.

 STATEMENT OF JILL C. MANNING, SOCIAL SCIENCE FELLOW, HERITAGE 
 FOUNDATION, WASHINGTON, D.C., AND SOCIOLOGIST, BRIGHAM YOUNG 
                    UNIVERSITY, PROVO, UTAH

    Ms. Manning. Thank you, Senator Brownback, Senator Feingold 
and Senator Hatch. I appreciate this opportunity to address you 
today.
    Since the advent of the Internet, the pornography industry 
has profited from an unprecedented proximity to the home, work 
and school environments. Consequently, couples, families and 
individuals of all ages are being impacted by pornography in 
new and often devastating ways.
    Although many parents work diligently to protect their 
family from sexually explicit material, research funded by 
Congress has shown Internet pornography to be ``very 
intrusive.'' Additionally, we know that a variety of 
fraudulent, illegal and unethical practices are used to attract 
new customers and eroticize attitudes that undermine public 
health and safety. This profit-driven assault jeopardizes the 
well-being of our youth and violates the privacy of those who 
wish not to be exposed.
    Leading experts in the field of sexual addictions contend 
online sexual activity is ``a hidden public health hazard 
exploding, in part because very few are recognizing it as such 
or taking it seriously.''
    Research reveals many systemic effects of Internet 
pornography that are undermining an already vulnerable culture 
of marriage and family. Even more disturbing is the fact that 
the first Internet generations have not reached full maturity, 
so the upper limits of this impact have yet to be realized. 
Furthermore, the numerous negative effects research point to 
are extremely difficult, if not impossible, for individual 
citizens and families to combat on their own.
    This testimony is not rooted in anecdotal accounts or 
personal views, but rather, in peer-reviewed findings in 
published journal articles, academic journal articles. I have 
submitted a review of this research to the Committee and 
request that it be included in the record.
    Chairman Brownback. Without objection.
    Ms. Manning. The marital relationship is a logical point of 
impact to examine because it is the foundational family unit, 
and a sexual union easily destabilized by sexual influences 
outside the marital contract. Moreover, research indicates the 
majority of Internet users are married, and the majority 
seeking help for problematic sexual behavior are married, 
heterosexual males. The research indicates pornography 
consumption is associated with the following six trends, among 
others:
    1. Increased marital distress and risk of separation and 
divorce;
    2. Decreased marital intimacy and sexual satisfaction;
    3. Infidelity;
    4. Increased appetite for more graphic types of pornography 
and sexual activity associated with abusive, illegal and unsafe 
practices;
    5. Devaluation of monogamy, marriage and child rearing; and
    6. An increasing number of people struggling with 
compulsive and addictive sexual behavior.
    These trends reflect a cluster of symptoms which undermine 
the foundation upon which successful marriages and families are 
established.
    While the marital bond may be the most vulnerable 
relationship to Internet pornography, children and adolescents 
are by far the most vulnerable audience. When a child lives in 
a home where an adult is consuming pornography, he or she 
encounters to following four risks:
    1. Decreased parental time and attention;
    2. Increased risk of encountering pornographic material 
themselves;
    3. Increase risk of parental separation and divorce; and
    4. Increased risk of parental job loss and financial 
strain.
    When a child or adolescent is directly exposed, the 
following effects have been documented:
    1. Lasting negative or traumatic emotional responses;
    2. Earlier onset of first sexual intercourse, thereby 
increasing the risk of STDs over the lifespan;
    3. The belief that superior sexual satisfaction is 
attainable without having affection for one's partner, thereby 
reinforcing the commoditization of sex and the objectification 
of humans;
    4. The belief that being married of having a family are 
unattractive prospects;
    5. Increased risk for developing sexual compulsions and 
addictive behavior;
    6. Increased risk of exposure to incorrect information 
about human sexuality long before a minor is able to process 
and contextualize this information in the ways an adult brain 
could; and
    7. Overestimating the prevalence of less common practices 
such as group sex, bestiality and sadomasochistic activity.
    Because the United States is ranked among the top producers 
and consumers of pornography globally, the U.S. Government has 
a unique opportunity to take a lead in addressing this issue 
and the related harm. This leadership could unfold in a variety 
of ways. For example, educating the public about the risks of 
pornography use, similar to how we do with smoking or other 
drugs; supporting research that examines aspects of Internet 
pornography currently unknown; allocating resources to enforce 
laws already in place; and last, legally implement 
technological solutions that separate Internet content, 
allowing consumers to choose the type of legal content they 
wish to have access to.
    In closing, I am convinced Internet pornography is grooming 
young generations of Americans in such a way that their chances 
of enjoying healthy and enduring relationships are handicapped. 
I hope this Committee will carefully consider measures that 
will reduce the harm associated with Internet pornography.
    I thank the Committee for this opportunity to testify and 
welcome your questions.
    [The prepared statement of Ms. Manning appears as a 
submission for the record.]
    Chairman Brownback. Thank you, Ms. Manning. Succinct 
testimony.
    Ms. Harris.

  STATEMENT OF LESLIE HARRIS, SENIOR CONSULTANT AND EXECUTIVE 
    DIRECTOR DESIGNEE, CENTER FOR DEMOCRACY AND TECHNOLOGY, 
                        WASHINGTON, D.C.

    Ms. Harris. Mr. Chairman, Senator Feingold, Senator Hatch, 
thank you for permitting the Center for Democracy and 
Technology to testify today.
    CDT is a nonprofit public interest organization that was 
founded in 1994 in the early days of the Internet to promote 
democratic values and individual liberties in a digital age. We 
are guided by a vision of the Internet as open, global, 
decentralized, and most important for our purposes, user 
controlled.
    A discussion of pornography inevitably raises a question 
about the availability of content on the Internet and how to 
best achieve the important goal of protecting children from 
such material.
    As Professor Smolla has explained, some of this material 
that is obscene, that is child pornography, that is illegal, 
can be prosecuted, and indeed, in the Communications Decency 
Act, the only surviving provision in that Act directly relates 
to obscenity.
    The more difficult question perhaps is how to deal with 
material that is constitutionally protected, and CDT has long 
cautioned against overreaching laws which ultimately prove 
unconstitutional and fail to provide any meaningful protection 
to children. At the same time, the organization has been on the 
forefront of efforts to use new technologies to empower parents 
to guide their children's online experience. We took a lead 
role in creating GetNetWise, a user friendly resource that was 
created by the Internet Education Fund, that helps parents be 
no more than one click away from all the tools and resources 
that they need to make informed decisions about their 
children's Internet experience. And in the last year that site 
has over 200,000 unique visitors.
    The President of our organization, Jerry Berman, served on 
the COPA Commission. That Commission was mandated as part of 
the Children's Online Protection Act. One of two blue ribbon 
panels--the other being a study this Congress mandated at the 
National Academy of Science led by former Attorney General 
Richard Thornburgh--directed to investigate how to best protect 
children online.
    I want to briefly review the findings and lessons learned 
from those two panels. Both were panels of prominent people 
with diverse expertise from across the political spectrum, and 
both concluded that the most effective way to protect children 
online is through a combination of education for both parents 
and children, parental involvement, and choice enabled by 
filtering and technology tools, a strategy commonly known as 
user empowerment.
    Those two studies, the COPA Commission was specifically 
asked to identify technological methods or other tools if any 
to help reduce access to minors to material that was harmful to 
minors. In the National Academy of Science study, which was a 
longer and deeper study, was a study of computer-based 
technologies and other approaches to the problem of 
availability of pornographic materials to children on the 
Internet. That study was more than two years in the making and 
it was released. The study, I believe, was entitled ``Youth, 
Pornography and the Internet'' in May 2002. I ask that that 
study be put in the record.
    Chairman Brownback. Without objection.
    Ms. Harris. The key conclusions of the two reports are 
strikingly similar. First--and I think this is critical in 
terms of thinking about policymaking--that the global nature of 
the Internet, that criminal laws and other direct regulation of 
content that is inappropriate for minors, is likely to be 
ineffective; and second, that education and parental 
empowerment with filtering and other technology tools are far 
more effective than criminal law.
    What I am saying here is that technology can be part of the 
solution, not just part of the problem. Both reports found that 
most of the commercial websites that are offering sexually 
explicit material are located outside the United States, and I 
think those numbers have grown in the time since this study was 
published. The National Academy concluded, and I will quote 
here, ``The primary reliance on a regulatory approach is 
unwise.''
    Both reports found filtering and blocking technologies are 
more effective for protecting children. Both believe that ``the 
most important finding''--and I quote the Thornburgh Committee 
here--``of the Committee is that developing in children and 
youth an ethic of responsible choice and skills for appropriate 
behavior is foundational for all efforts to protect them.'' And 
also that technology tools, I quote, ``such as filters, can 
provide parents and other responsible adults with additional 
choices as to how best fulfill their responsibilities.''
    And critically, the Thornburgh Report suggested that one 
has to look beyond criminal laws for Government and public 
policy actions that might protect children, including concrete 
governmental action to promote Internet media literacy, 
educational strategies and support of parents' voluntary 
efforts to employ technological solutions.
    Importantly, both studies were endorsing the use of filters 
and empowerment technology by end users, parents, care givers, 
not by governments or third party intermediaries by mandates. 
As these studies acknowledge, these tools are imprecise and 
often overbroad, often block illegal and constitutionally 
protected material at the same time, but in the hands of 
families these are the least restrictive means of furthering 
the Government's interest in shielding children. In the hands 
of Government they quickly become censorship.
    We do have some new challenges, and one of those new 
challenges is plainly convergence. As the Internet begins to 
converge with technologies like cable television, cellular 
phone, MP3 players and to provide a wide range of content 
across platforms, we do have new questions arising. At the same 
time the tools are themselves evolving to meet those 
challenges. Just this week, CTIA, the trade association for the 
wireless industry, announced new wireless content guidelines 
and a commitment to implement Internet content access control 
technologies that can empower parents to control the types of 
content that can be accessed over wireless phones and other 
devices. So if content is moving to technologies, parental 
empowerment technologies are spreading with it.
    There are new challenges. One of those new challenges is 
ratings, a concern that multiple ratings of different kinds of 
content on different kinds of platforms start to converge, that 
that will cause confusion. Another concern is unrated material 
as more and more people add their content to the Web, it may 
become more difficult for user empowerment technologies to be 
able to access and make decisions about what to block and what 
not to block. The Internet Education Fund is beginning a new 
initiative to try to rationalize those differing rating systems 
and user empowerment tools, and work with industry and other 
stakeholders to explore ways to ensure that the rating schemes 
easily map to new nontraditional media outlets, and that 
content creators of all type encode their material in a way 
that can be accessed by user empowerment tools.
    Chairman Brownback. Ms. Harris, if we could wrap the 
testimony up, I would appreciate that.
    Ms. Harris. I am going to stop right now.
    I look forward to working with the Committee on these and 
other measures that will support the user empowerment approach 
to protecting kids online.
    [The prepared statement of Ms. Harris appears as a 
submission for the record.]
    Chairman Brownback. Thank you very much.
    Mr. Whidden.

 STATEMENT OF RICHARD R. WHIDDEN, JR., EXECUTIVE DIRECTOR AND 
SENIOR COUNSEL, NATIONAL LAW CENTER FOR CHILDREN AND FAMILIES, 
                       FAIRFAX, VIRGINIA

    Mr. Whidden. Senator Brownback, Senator Feingold, good 
afternoon. My name is Richard Whidden, and I am the Executive 
Director and Senior Counsel for the National Law Center for 
Children and Families. I am honored to be called to testify 
today. I will discuss briefly how Congress, and in appropriate 
cases, the States, have compelling interests in regulating the 
material that we are discussing today.
    I should preface my comments by outlining the well-
established interests that the State has in regulating 
obscenity. In the Supreme Court's prior decision, Paris Adult 
Theater 1, the Supreme Court held that obscene material does 
not acquire immunity from State regulation simply because it is 
exhibited to consenting adults. The Court discussed in that 
case at length the numerous State interests, including 
interests of the public and the quality of life, the tone of 
commerce in the great city centers, public safety that justify 
regulation in addition to the States' interest in protecting 
children and what was referred to as the unwilling adult 
viewer.
    The Court in that case further held that the obvious 
prurient nature of the material was sufficient basis in and of 
itself to determine whether the material was obscene, so that 
expert testimony in the prosecution of these cases was not 
required to prove obscenity.
    This decision had the effect of allowing Government to 
regulate obscenity without having to rely upon onerous levels 
of review in every investigation or prosecution commenced by 
the Government.
    It is further that the Government has a compelling interest 
in protecting children from exposure to sexually oriented 
materials. In 1968, the Supreme Court in Ginsberg v. New York 
upheld a New York law prohibiting the sale of sexually explicit 
materials to those under 18 regardless of whether or not that 
material would be considered obscene for adults. The Court 
opined, and I quote from the decision, ``The well-being of its 
children is of course a subject within the State's 
constitutional power to regulate.'' It also found that the 
State had an interest in creating law supporting parents, 
teachers and others with a responsibility for children's well 
being, as well as an independent interest in maintaining the 
well being of youth.
    According to the Court in Ginsberg, the quantum of harm 
required to justify State action was minimal, so long as the 
Government demonstrated that the material was harmful to 
minors, and therefore, not constitutionally protected 
expression. In support of its conclusion, the Court cited 
studies prior to 1968 demonstrating that pornography was 
harmful to minors.
    It appears beyond doubt that the harms of obscenity 
recognized by the Court in Ginsberg decades ago has been 
greatly amplified in today's environment. When Ginsberg was 
decided in 1968, the Internet was a figment of science fiction 
writers' imaginations, persons who sought to obtain obscene 
materials could obtain it in a relatively few places. Today 
obscene materials are easily accessible to us, and therefore, 
to our children, on our home computers, through those computers 
in classroom, their wireless technology devices as that 
develops and converges in the future, as Ms. Harris alluded to.
    Obscene materials are no longer limited to the proverbial 
plain brown wrapper. The accessibility, affordability and 
anonymity of the Internet, I submit, in my opinion, has had an 
adverse effect on our children and families in addition to the 
great things that the Internet has provided.
    Congress has taken several steps in the previous years to 
address these harms, and they have been alluded to previously. 
The Children's Internet Protection Act, otherwise known as 
CIPA, was upheld as a legitimate exercise of Federal funding 
discretion. Specifically, the Court held that Congress could 
fund library Internet access on the condition that libraries 
adopt Internet filtering policies.
    On a preliminary injunction in the Ashcroft v. ACLU case 
decided in 2004, the Court held the Child Online Protection Act 
unconstitutional because of the record before the Court at that 
time did not show it as the least restrictive alternative under 
First Amendment analysis. However, it is critical to note that 
the Court in that case specifically said that Congress could 
regulate the Internet to prevent minors from gaining access to 
harmful materials. Indeed, that case is now back on remand to 
the lower court for further findings with respect to the 
technology, which has changed since that original court case 
was decided.
    It has also been established that the law may address the 
methods of distribution of pornography. Justice Sandra Day 
O'Connor, several years ago, wrote about the regulation of 
Internet pornography in a concurring and dissenting opinion, in 
a way that is analogous to the zoning laws that local 
communities can adopt, allowing for the segregation, if you 
will, of harmful material. Specifically in those cases, 
Government may address the secondary impacts and secondary 
effects of pornography on children and family in the time, 
place and manner of that distribution. However, the Internet 
that Justice O'Connor referred to was the relatively nascent 
Internet of 1997. In her discussion, she lamented the lack of 
technology available at that time to empower parents to protect 
their children, suggesting that technology could provide that 
ability in the future. Investigating technological capabilities 
and encouraging the development of new technologies that can 
help parents should be encouraged by Congress and this 
Committee.
    I submit Congress and the States should consider the 
following:
    First, Government should encourage research concerning the 
effects of pornography on children and families, not only what 
has been alluded to here, but also what Senator Brownback 
alluded to earlier on research on this material and the effects 
of it on the human brain and its addictive nature, should be 
continued;
    Second, Government should foster the development of 
technological answers that will allow families to adequately 
protect their children while they use the Internet;
    Third, Congress should create legislation which allows 
parents to hold illegal pornography distributors of illegal 
pornography responsible for harm done to children; and
    Fourth, Government should create legislation that would aid 
in keeping sexual material away from sexual predators who 
utilize that material to groom victims for abuse.
    I want to thank the Committee for this opportunity to 
testify today on this issue so important to families and 
society.
    [The prepared statement of Mr. Whidden appears as a 
submission for the record.]
    Chairman Brownback. Thank you. Let us run the clock at 5 
minutes and we will bounce back and forth here if that is okay 
with Senator Feingold.
    Mr. Whidden, I want to ask you on that third point that you 
are suggesting here, you are suggesting by that that we 
establish a procedure where parents can sue pornography 
distributors for damages to their children?
    Mr. Whidden. An Act that was considered by Congress in the 
early 1990s would have provided for civil laws of action with 
respect to if a child was abused, for example, and there was 
shown to be a causative link between some pornography that the 
abuser saw, that potentially that the pornography distributor 
could be held liable in a civil action. That was considered by 
Congress I believe in the early 1990s. Such legislation should 
again be looked at and see if that is a viable option.
    Chairman Brownback. Dean Smolla, does that strike any First 
Amendment issues to you, just on first blush? Obviously you are 
just hearing about this.
    Mr. Smolla. Sure. Well, you would have to first know 
whether the material that was the alleged cause of the abuse 
was constitutionally protected or not constitutionally 
protected. So if it were obscene material or if it were child 
pornography and was not constitutionally protected anyway, then 
creating a civil remedy for harms that flow from it would 
probably not violate the First Amendment. That is my initial 
reaction.
    But if the material were soft-core pornography of the kind 
that would normally be protected, you would have major First 
Amendment difficulties, and it would be similar to attempts to 
go after a rap group because an explicit lyric causes someone 
to engage in a drive-by shooting, that sort of thing. That 
courts have been almost entirely unwilling to allow liability 
in that sort of situation.
    Chairman Brownback. But if it is material--and you have 
suggested that much of the material today would be prosecutable 
under Miller, so it would be any material that would be 
prosecutable under Miller you would think would be subject to 
civil exposure?
    Mr. Smolla. If you can put someone in jail for the 
material, then by hypothesis you could have a civil remedy for 
harm that was caused by it, assuming you could, you know, 
satisfy ordinary principles of tort law and causation and so 
on. I do not see any constitutional impediment to that if it is 
otherwise unprotected material.
    Chairman Brownback. Ms. Paul, you have been conducting a 
nationwide town hall meeting on this topic with your book. I am 
guessing you have done a lot of radio shows and different 
things. You talk about the effects of it, and when I read just 
the summary, as I said, it was just horrific, the things you 
were talking about, both you and Ms. Manning. You do not 
particularly recommend specific actions, and I realize that is 
not your role and that is not why we have you here. But have 
you heard any particular ones as you have been out across the 
country that strike you as making good sense of something we 
could on this topic?
    Ms. Paul. I think you are right, I will defer to Ms. 
Manning and to Mr. Whidden on that question. But I would say 
that those who often defend the right of pornography as free 
speech, often refer to pornography as sexually educational 
materials, and I think that that is a disingenuous position to 
take considering the nature of pornography that is out there 
and the kind of lessons that that pornography imparts, 
particularly to young people. So I think that the kind of free 
speech that could be fostered certainly is awareness and 
education about the harmful effects of pornography.
    In this country I think prior to recent efforts, from films 
like ``Supersize Me'' and books like ``Fast Food Nation,'' 
people looked at a Chicken McNugget, for example, and they 
thought, well, you know, it is probably not that good for me, 
but they did not know everything, all the harmful ingredients 
in a Chicken McNugget and they could then make a more informed 
decision about whether to consume it.
    I think that in this country we tend to look at pornography 
as harmless entertainment and that there is very little in 
terms of a public education campaign or anything in schools or 
in the culture overall that shows pornography really for what 
it is, and highlights the harmful effects that it has, and I 
think that is the kind of free speech that certainly should be 
encouraged.
    Chairman Brownback. So you would advocate really just a 
very strong public awareness campaign, of more books like your 
``Pornified'' being out, and more discussion of this taking 
place across the country?
    Ms. Paul. Well, I certainly think it would be a start. I 
mean I think that, again, the public discourse in this country 
in popular culture particularly, tends to avoid any criticism 
of pornography, and any criticism that is out there is 
immediately written off, as Senator Hatch said earlier, as 
something that is prudish or uptight or somehow irrelevant, and 
I think that that really ignores the reality of what 
pornography is, and how much it affects those who use it and 
those around people who use it. So I wrote my book--obviously 
as a journalist I am very interested in free speech, and I 
wrote my book in order to get that message out there and to 
really show the harm that pornography does.
    Chairman Brownback. What has been the reception for your 
book?
    Ms. Paul. Well, obviously, there has been some very nice 
reception, particularly among people who have suffered at the 
hands of pornography, that there is some kind of recognition 
that is finally get out there of the problem, and from those 
who become addicted or compulsive about pornography, they are 
particularly grateful that this message has gotten a little bit 
mainstream attention.
    I would say that it has been disappointing to me that there 
has been a very harsh critical reaction from people who 
immediately assume, again, that I am somehow going to call for 
a ban on pornography or impinge on free speech, and the 
criticisms, again, take the form of what has traditionally been 
the pornographer's response, which is ad hominem attacks. 
Certainly I have been called a prude, a reactionary, or some 
kind of sexually unsatisfied person who is just out to condemn 
men. It is unfortunate, but that--
    Chairman Brownback. What have people that are addicted or 
have been addicted to pornography say to you?
    Ms. Paul. For many of them it is difficult to read about 
it, obviously. I note in the book that I used a lot of the 
language that men who use pornography tend to employ and 
describe some of the pornography, and obviously, that is very 
hard for someone who has a compulsive problem with pornography 
to look at. For them it is hard to even turn on the television. 
I mean you have Victoria's Secret prime time specials, that for 
them trigger a response similar to pornography and can tumble 
them back into it. So to read it is difficult.
    But they have been tremendously grateful that the problem 
has been acknowledged. As you may well know, the question of 
whether pornography is addictive is still controversial in 
psychiatric circles and is not part of the DSM, and so they 
struggle with simply getting recognition that their problem is 
legitimate.
    Chairman Brownback. Ms. Manning, you had something to add?
    Ms. Manning. Yes. I have listened intently to discussions 
about freedom of speech and expression, and I need to enter 
into this hearing the view that this is not just a simple form 
and benign form of expression, but rather, a potentially 
addictive substance. And I believe the social science and 
neuroscience is gradually building the case for that to be well 
established.
    As a practicing clinician that works with sex addicts, 
spouses of sex addicts, and currently just 2 days ago working 
with my teenager's group for porn addicts, I can tell you this 
is not a simply form of expression. One of the fundamental 
differences that make it so is people watch a movie, read a 
book, listen to music, but they masturbate to pornography, and 
in that difference you have a different stimulation to the 
brain. It has a fundamental difference physiologically on 
people with the neurotransmitters and hormones that are 
activated, approximately 14 of them, and in a split second, 
three-tenths of a second, we know that the material starts a 
chain reaction in the body. That is different than other forms 
of media. This acts very quickly, and there have been some 
experts that have even argued that in and of itself overrides 
informed consent when encountering this material.
    When you work in the throes, in the trenches of people 
dealing with this on an out-of-control basis, I would 
respectfully disagree that filters and content watches are the 
way to go. One hundred percent of the sex addicts in my 
groups--and I have worked with close to 100 of them--the youth 
in the group that I work with, all of them have filters on 
their computers. We know from research that there is a 12 
percent increase in likelihood of using Internet porn for every 
one unit of computer knowledge. We have technologically savvy 
kids these days. Filters can be circumvented, rerouted, 
passwords broken. These are smart kids, and the industry is 
smart. Filters can lull us into having a false sense of 
security that this is protecting our families.
    I meet with parents that are concerned weekly who are 
putting these things on their computers, and still this is an 
issue.
    Chairman Brownback. Thank you. I went way over my time.
    So, Senator, please use yours freely.
    Senator Feingold. Thank you, Mr. Chairman.
    Dean Smolla, thank you for being with us today. As I 
understand it there is a pretty stark analytical difference 
between how the First Amendment creates laws that limit the 
access of adults to sexually explicit content and those that 
limit the access of children to those materials. It seems 
obvious that materials that are appropriate for adults might 
not be something we want to expose children to. Can you go 
through the First Amendment distinction between these two 
scenarios and whether the compelling Government interest test, 
which you talked about some, has been applied differently 
depending on whether law regulates material for adults or for 
children?
    Mr. Smolla. Senator, I think just to reiterate the basic 
framework that I went through earlier, there is actually a 
convergence between Mr. Whidden's testimony and mine in this 
sense. It is true that Miller and Paris Adult Theater, which 
are still the two cornerstone First Amendment decisions that 
govern this area, talked about the social harms that justify 
not giving obscene speech First Amendment protection. But then 
those cases struck the balance for us. Those cases said: That 
is the reason why we do not protect obscenity, now here is how 
you define ``obscenity.''
    Much of the kind of thing that Ms. Manning is talking about 
is already reachable under the Miller standard. Presumably, no 
one wants to ban, for example, erotic material that is part of 
a serious artistic, or political, or religious or scientific 
presentation. That is one of the bulwarks of the Miller 
standard, that if there is serious redeeming value we do not 
treat just as pornography, we treat it as a serious form of 
expression.
    If it is devoid of that, if it does not have serious value, 
and it appeals to the prurient interest, which does not mean 
much other than it is sexy, it is erotic, and it is patently 
offensive under local community standards, you can already go 
after that. The probability is that without changing one word 
of one law anywhere, if you doubled, tripled, multiplied ten-
fold the prosecutorial efforts, you would see results. No doubt 
about it. That either means you take existing budgets, and 
prosecutors do not prosecute the crimes they are doing now and 
shift it over to efforts to go after obscene material, or 
legislative bodies appropriate more money to give them the 
tools to do it. The law does not need changing so much as the 
social will to go after it.
    Children are a different matter, Senator, and that has been 
key to what many, many people have said, and I think there is 
agreement there. But again, I would submit that the tools are 
already there, the tools to deal with child pornography, the 
tools to deal with predators are there legally. What you need 
are the resources to go after it.
    Senator Feingold. Ms. Harris, I have long been concerned 
about, as I indicated before, Congress passing laws with 
laudable goals but that have little chance of surviving 
constitutional challenge. As I said before, it is a waste of 
time and resources, yet it seems to be the road we have gone 
down time and time again. At the same time there is no question 
that we are dealing with difficult problems. So I was 
interested in your testimony pointing to well-respected 
commissions that have argued that instead of creating new 
crimes, which we have had such trouble trying to do, we might 
consider doing what we can to help support parental efforts to 
educate and empower themselves and their children regarding 
appropriate and safe Internet usage.
    As technology advances, more and more tools such as 
filtering software are available to help parents and other 
responsible adults protect children, and there are numerous Web 
resources. Indeed the Supreme Court itself has suggested that 
this type of approach is constitutionally preferable.
    From a practical and legal perspective, is this a better 
way to address these problems, particularly with regard to the 
Internet?
    Ms. Harris. I think it is, and I think not only have these 
two commissions done serious research and come back with that 
conclusion, but were not taking those studies seriously. I 
think that in a 21st century environment the literacies for 
families about how to manage content on the Internet, how to 
control their children's Internet use, is not optional. Knowing 
how to do these things are not optional any more. And that a 
large part of agenda really needs to be moving people to 
becoming wise users of these resources.
    And I continue to believe--I do understand that an 
individual child may be able to get around a filter. I mean we 
cannot do public policies for the single person who somehow can 
subvert those policies. But overall, we have these tools, they 
are getting better. We need to collectively make a commitment 
to make sure those tools travel with us as digital technologies 
converge. We have some very thorny questions to make those 
technologies work in a new environment, and we need to put some 
energy and time into that agenda, because ultimately it may be 
the only constitutional agenda that we have in this area.
    Senator Feingold. Thank you, Mr. Chairman.
    Chairman Brownback. Ms. Manning, I want to pursue this a 
little further with you and start it with noting that there was 
an article released today stating that complaints about 
indecency and obscenity to the FCC have risen four-fold in the 
last quarter of this year, and the numbers have gone from 6,161 
to 26,185 complaints to FCC. This is on top of the study that 
was cited by Senator Hatch about the substantial increase of 
sexual material on over-the-air broadcasts, because the FCC 
only regulates over-the-air public broadcast, radio, 
television. We will submit the article for the record.
    I am curious from what you describe, when you say that 
somebody is addicted to this material, what happens when they 
see it? You are saying filters do not work because they know of 
some way to get around the filter. Is it triggered when they 
see something on television, and then we are off to the races 
another way, or how does this work?
    Ms. Manning. It depends on the individual and the types of 
material that they are drawn to or tempted by. I agree with 
Dean Smolla that we tend to treat pornography as this one 
thing, and there is a range of categories within that. People 
that are drawn to child pornography may not necessarily be 
triggered by heterosexual content that they see, but there are 
triggers in the day-to-day world that we live in.
    How the addiction works, in my view, and there is research 
to back this up, is that it tends to escalate over time, and we 
know that the Internet has rapidly increased the rate at which 
people can develop compulsive and addictive behaviors. As well, 
experts in that field know that the Internet has attracted 
users that may never have had a problem with pornography prior 
to this era, so the base of consumers is rapidly growing as 
well as female consumers. We now have a situation where up to 
30 percent of consumers online are female. That was not the 
case years ago.
    Chairman Brownback. Thirty percent of pornography consumers 
online are female?
    Ms. Manning. Online. So we see escalation over time, 
greater tolerance to this material where they seek harder and 
coarser material over time. There is also withdrawal symptoms 
that can occur, insomnia, shaking, similar to what we see with 
withdrawals in other types of drug usage. That also leads to 
greater risk taking where these people are not using good 
judgment with jobs, family relationships. Many of my clients 
have lost multiple jobs, presidents of companies, high-level 
executives--
    Chairman Brownback. Of being addicted to pornography?
    Ms. Manning. Being addicted to pornography. This also 
brings in liability issues for corporations, where we know a 
good bulk of pornography is being consumed during the working 
day. That brings in sexual harassment questions into the 
workplace, decreased productivity, et cetera, et cetera. So the 
addictive elements of this, yes, there is not consensus on this 
in the entire mental health and medical community. However, for 
those of us that are working in this field, I must state that 
five, six years ago I was somewhat indifferent on this issue, 
and it was not until I started practicing clinically and seeing 
this devastation that I quickly became convinced this is not 
just being conditioned to be overly aroused by material.
    There is an addictive quality to this that we need to be 
paying attention to, and that is a distinction in the freedom 
of speech arguments and debate that I think needs to catch up 
with the Internet era. This is a different debate than the 
previous era of magazines, film, that had still images or 
images that you could not interact with. This is highly 
interactive, powerful emotionally, loaded content that affects 
the brain very differently than still images.
    Chairman Brownback. Ms. Paul, I want to get you into this, 
on particularly the issue of marital relations. The data seem 
to be building pretty substantially that the pornography is 
negatively affecting a number of marriages in this country. It 
is coming from divorce lawyers, family law practitioners, 
others. Is that something you found consistent in your 
interview and survey?
    Ms. Paul. Yes, absolutely. I mean when you talk to men, for 
example, about their use of pornography, they will often openly 
admit that if they come home at the end of the day and they 
have a choice between having sexual relations with their wives 
or going online and masturbating to the computer, if they go to 
their wife, well, just practically speaking, they have to make 
sure that they have done all the chores around the house they 
were supposed to do. They need to have a half an hour 
conversation about what they did that day. It often takes a 
longer time for a relationship with a real person than it does 
to masturbate to the computer, and you are talking about an 
hour and a half, something that involves communicating, 
something that involves taking part in the family and in the 
household, versus 5 minutes to go online.
    Well, a lot of men say, quite frankly, ``I would rather 
just go online,'' and so--
    Chairman Brownback. They said that to you in the interviews 
that you did?
    Ms. Paul. Yes. ``I would prefer to just go online. It is a 
lot easier. It is a lot less stressful. It is a lot more 
fulfilling in certain ways than to go and to be with my wife.'' 
What happens is you create a vicious cycle.
    Now, I must state that every man, almost every man, would 
say unequivocally, ``Well, of course sex is preferable with a 
real person than with a computer.'' That is in the abstract. 
But when it comes down to what they actually do, again, you get 
the cycle, well, it becomes a lot easier to go online to the 
computer. The more you do that, the less you are communicating 
with your wife, the less you are physically with your wife, and 
the wives notice this, and of course, they wonder, ``Where is 
my husband? Why is he no longer interested in me?''
    When a wife discovers that a man is looking at pornography, 
her first reaction is to feel betrayed. It feels like cheating 
even if it is not cheating in a legal sense. They feel that 
they have to compete with these women. How would you expect, 
say, a 45-year-old woman who has been married for 15 years and 
has 3 children, to compare herself with someone who is 20-
years-old, surgically enhanced, airbrushed, and will online, in 
the pornography that is depicted online, do every single thing 
that the man would like her to do and behave in ways that she 
might not be comfortable with? It becomes extremely difficult 
for women to cope with that reality.
    Chairman Brownback. Thus leading to more difficulty in the 
relationship.
    Ms. Paul. Exactly.
    Chairman Brownback. And more divorce in its impact.
    Ms. Paul. Exactly. I think that, just to build on what Ms. 
Manning was saying, there is a slippery slope where we tend to 
look at the pornography addicts and say, okay, that is a small 
slice of the population, but we cannot apply everything, we 
cannot speak about that as if everyone is going to become 
addicted the same way we cannot talk about alcohol in the sense 
that everyone is going to become an alcoholic. But there are 
men who openly say that they would never have had a problem 
with pornography if it had not been for the Internet.
    When I spoke with casual users, who were the majority of 
the people I interviewed, and asked them, ``Do you think you 
ever could become addicted to pornography?'' Most of them said 
they could. I do not think any of them would have said that 
before the Internet.
    Chairman Brownback. Dean Smolla, I want to bring you into 
this then, and I am trying to build a bit of a factual case for 
you. I am sure you have seen this coming. Ms. Manning talks 
about specific settings of her clients. Ms. Paul talks about 
the setting. You know the level of divorce, the divorce 
lawyers, family law practitioners saying this is clearly 
growing in its impact. I believe the case is documented and is 
building. You say we have to hit a strict scrutiny standard 
that is like saying the theater is burning to be able to get at 
any further limitation on this, I believe if I am catching you 
correctly. If I am not, correct me. But also address this 
question. Are we getting to the point of evidence that a court 
would be willing to say this is enormously harmful; it has met 
the standard of the society of legislators being able to 
legislate and address this because of the documentation of its 
harm in society?
    Mr. Smolla. And I think that that is the heart of the 
matter, and my simple answer is no. So that you will not think 
that is the shrill, strident, free-speech answer, remember that 
the constitutional doctrine today, to put it very simply, 
divides the world between hard-core porn and soft-core. I mean 
if you just wanted to put it in simple language in terms of 
what Miller v. California means, that is the division.
    And so if we have a kind of public health epidemic, if we 
have a new behavioral problem in the way that men and women 
relate, if there is an addictive quality to this because of the 
Internet that did not exist before, that does not change the 
constitutional standard. It may merely mean that we need more 
public health resources, more prosecutorial resources, more 
efforts under existing law.
    The heart of my testimony is, most of what is causing the 
kinds of behavioral dysfunction that these witnesses are 
talking about, which I think is strong evidence, most of what 
is causing that could be prosecuted almost certainly under the 
Miller standard. We are not talking about episodes of ``Sex and 
the City.'' We are not talking about the HBO series ``Rome,'' 
where there is an explicit sexual scene, but it is obviously a 
portrayal of history. We are talking for the most part about 
pretty crude, straightforward hard-core material, that 
depending on the jurisdiction--and this is the federalism 
issue, the law is you have to go community by community--
depending on the jurisdiction, almost certainly you could reach 
it if there was the willpower to put the energy into it.
    I think, Senator, what I am saying is, if this is a public 
health problem of the nature that we are maybe beginning to 
perceive, then treat it as one and put the resources into that. 
Put the resources into counseling, into education and into 
existing criminal laws, and do not try to stretch the envelope 
of the First Amendment, where almost certainly, you just know 
almost certainly, you are going to get tremendous pushback from 
the courts.
    Chairman Brownback. I am more attracted to this idea of 
allowing civil actions to move forward if you want to multiply 
your resources.
    Mr. Smolla. As an old plaintiff's lawyer, Senator, I can 
see a lot of people liking that.
    Chairman Brownback. I am singing to the choir here on that.
    Mr. Smolla. Does that multiply your resources here?
    Chairman Brownback. It does.
    Mr. Smolla. If the case is building as you are hearing.
    Chairman Brownback. This is the first hearing I have held 
on this topic, and it is not the first year I have been 
interested in it, because I have watched this develop and I 
have watched the evidence build on it, and we started sometime 
back on the Internet when these first started coming out 
because it seemed like the Internet really provided another 
whole venue here that we had not been used to. At first we were 
really raising more alarms to it than anything, but you are 
saying, well, I could see where your alarm could be accurate, 
but we do not have the evidence.
    Now we are years into this thing, and it seems to me, not 
only do we have the evidence, it is massive in its overarching 
impact, and that it is very international in its basis because 
of the nature of how the Internet works.
    Mr. Smolla. Senator, I think that just to quickly respond 
to the civil action idea, we have an analog, we have the law of 
libel which says that if you meet certain standards of 
causation, certain standards of intent, certain standards of 
First Amendment requirements that the material be false and 
defamatory and so on, a plaintiff can recover millions of 
dollars in damages for the harm to reputation and the emotion 
anguish caused by someone's libelous speech. Because once you 
meet the constitutional definition of ``libel'' and the 
requisite intent requirements, there is no First Amendment 
protection.
    So by hypothesis--I mean one would want to research it and 
think it through and draft carefully--by hypothesis, if you 
limited the civil action to material that already satisfied the 
Miller standard, for example, or the child pornography standard 
governed by Osborn v. Ohio, if you had speech that already 
comes to you unprotected and you met standards of causation 
that would satisfy due process and so on, I see no 
constitutional impediment at the outset to doing it.
    Chairman Brownback. Do you support the Department of 
Justice's current efforts to increase prosecution in this 
field?
    Mr. Smolla. Absolutely. What they have done is they have 
said this is already a crime. It is a crime we have the 
constitutional power to go after. We have made an executive 
branch decision that we should put more resources into it. 
There are crimes we do not prosecute because we do not care, 
and then the behaviors follow. If as a society we care about 
going after truly hard-core material, then it is a perfectly 
appropriate executive decision to go for it.
    Chairman Brownback. We are now getting reports of two types 
of pornography developing that then go into another subject I 
have worked on, of people, women being trafficked into the 
United States to do pornographic films, or of pornographic 
films being shot of women overseas, under age, and then the 
film brought back into here, which is probably the way the 
system is going to move to because it is far simpler to do that 
than to traffic the individuals into the country. I mean to me 
this is just one of the most vile things to see and to hear 
about, particularly since we have got so much human trafficking 
taking place now. The third leading income source for organized 
crime globally is trafficking. Most of it is centered around 
the sexual industries, prostitution. I cannot imagine the 
profit-making motive if you associate it now around 
pornography, the money that can be involved in this.
    How would you get at that nexus? Have any of you thought 
about that or have heard about this connection?
    [No response.]
    Chairman Brownback. If any of you get a sense on it, this 
is one that I am hopeful that we are going to be able to 
prosecute aggressively to start off with under either the 
obscenity laws or under the trafficking laws, one way or the 
other.
    I want to thank the panel very much for being here, and 
your testimony and your work on this. I want to encourage you 
to continue to write and publish on this. I do think one of the 
key things we need to do is to have that campaign, like you 
were talking about. That is first and foremost. This is a noisy 
society, and the best thing often you can do is really try to 
get enough noise level built up that people are aware this is a 
problem and I need to do something about it, or watch so I do 
not slip into it myself, or people around me. So I appreciate 
the efforts to write and to study on this, and I appreciate the 
constitutional warnings.
    We have been around this track a couple of times trying to 
address it and have been overturned in court. So I am not 
trying to do, I do not want to do another action that is, okay, 
we go up and the court throws it out again. That is a futile 
activity and it does not serve anybody's interest. So we want 
to try to get it right.
    The record will be left open for 7 days for submission of 
additional material that any of the individuals would like to 
submit. I will offer into the record now Ms. Paul's book, 
``Pornified,'' as well as Ms. Manning's article on the impact 
of Internet pornography on marriage and the family.
    Again, I want thank you all for being here, and I want to 
thank you particularly for your work. I think that is a key 
area we need to get more people working in.
    The hearing is adjourned.
    [Whereupon, at 3:30 p.m., the Subcommittee was adjourned.]
    [Submissions for the record follow.]
    [Additional material is being retained in the Committee 
files.]

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