[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
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON: 2006
25-923 PDF
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
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.]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]