[Senate Hearing 109-1023]
[From the U.S. Government Publishing Office]
S. Hrg. 109-1023
OBSCENITY PROSECUTION AND THE CONSTITUTION
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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
__________
MARCH 16, 2005
__________
Serial No. J-109-9
__________
Printed for the use of the Committee on the Judiciary
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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
David Brog, Staff Director
Michael O'Neill, Chief Counsel
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
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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
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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...................................................... 14
WITNESSES
Destro, Robert A., Professor of Law, Columbus School of Law,
Catholic University of America, Washington, D.C................ 4
Schauer, Frederick, Frank Stanton Professor of the First
Amendment, John F. Kennedy School of Government, Harvard
University, Cambridge, Massachusetts........................... 8
Trueman, Patrick A., Senior Legal Counsel, Family Research
Council, and former Chief, Child Exploitation and Obscenity
Section, Department of Justice, Washington, D.C................ 6
SUBMISSIONS FOR THE RECORD
Destro, Robert A., Professor of Law, Columbus School of Law,
Catholic University of America, Washington, D.C., statement.... 17
Schauer, Frederick, Frank Stanton Professor of the First
Amendment, John F. Kennedy School of Government, Harvard
University, Cambridge, Massachusetts, statement................ 25
Trueman, Patrick A., Senior Legal Counsel, Family Research
Council, and former Chief, Child Exploitation and Obscenity
Section, Department of Justice, Washington, D.C., statement.... 31
Wagner, William, Professor, and Director, Center for Ethics and
Responsibility, Thomas M. Cooley Law School, Lansing, Michigan,
statement...................................................... 37
OBSCENITY PROSECUTION AND THE CONSTITUTION
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WEDNESDAY, MARCH 16, 2005
United States Senate,
Subcommittee on Constitution, Civil Rights and Property
Rights of the Committee on the Judiciary,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 3:04 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Sam
Brownback, Chairman of the Subcommittee, presiding.
Present: Senators Brownback and Feingold.
OPENING STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM
THE STATE OF KANSAS
Chairman Brownback. I will call the hearing to order. I
want to welcome everybody to this first meeting of the
Subcommittee on the Constitution, Civil Rights and Property
Rights of the U.S. Senate Committee on Judiciary in this
session of Congress. I hope to be holding a number of different
hearings on various topics, but this is the first one that we
are kicking off with and I do appreciate all of you joining us.
And I would note that my colleague, the ranking member,
Senator Feingold, I believe his amendment is actually up on the
floor, is what I have been told, so he may be late, coming back
and forth for this. Now, that situation may change, and if we
hear differently, we will adjust. We may have to break into
some of your testimony if he comes here at a particular time
and he has to get back to the floor and I will try to
accommodate any opening statement that he would make.
The editor and publisher of Adult Video News, a journal of
the pornography trade, stated recently that, quote, ``It is
scary how much money is made on porn,'' end of quote, and this,
there can be little debate. The porn industry has grown rapidly
in the last decade. Part of the reason for this growth is that
the nature of and access to sexually explicit material in the
marketplace has been radically transformed and expanded.
According to many legal scholars, another reason for the
industry's growth is a legal regime that has undermined the
whole notion that illegal obscenity can be prosecuted.
Indeed, just last month, Federal Judge Gary Lancaster of
the Western District of Pennsylvania threw out a ten-count
Justice Department indictment against Extreme Associates,
purveyors of the most vile sort of pornography. The defendants
were in the business of producing films that, according to one
report, quote, ``even porn veterans find disturbing,'' end of
quote. A co-owner of Extreme Associates even boasted that the
films, which depict rape, torture, and murder, represent,
quote, ``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
obscenity 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 due process, decisions from Roe,
Lawrence, and others, and ruled that the statutes at issue
violated an unwritten constitutional right to sexual privacy.
Amazingly, even if such a right existed, it would not apply to
the defendants, since they were producers and not consumers of
the material.
There was a reason why Judge Lancaster had to bypass First
Amendment jurisprudence in reaching the results he wanted.
Numerous First Amendment precedents distinguish between
protected speech and illegal obscenity. For example, the
Supreme Court held almost a half a century ago that, quote,
``implicit in the history of the First Amendment is the
rejection of obscenity as utterly without redeeming social
importance.''
Thirty years ago, the Court rejected the notion that,
quote, ``obscene, pornographic films acquire constitutional
immunity from State regulation simply because they are
exhibited for consenting adults only.'' Rather, the Court
specifically held that there are legitimate State interests at
stake in stemming the tide of commercialized obscenity. It also
has held that it to be categorically settled that obscene
material is unprotected by the First Amendment.
If the Extreme Associates decision stands, we will have
gone from the flat statement of former Justice William Brennan,
who advocated perhaps the most expansive vision of
constitutional liberty of any Justice in Supreme Court history,
that obscenity, quote, ``was outside the protection intended
for speech and press,'' and we will be going to the notion that
obscenity cannot constitutionally be prosecuted at all.
Many constitutional scholars believe that blatant judicial
activism, as exemplified in the Extreme Associates decision,
has been responsible in large part for creating a climate in
which the porn industry has flourished. I was pleased to learn
that the Department of Justice is appealing Judge Lancaster's
ruling since the ruling effectively would gut decades of
precedent.
I also have been encouraged by recent statements by
Attorney General Gonzales that he would make it a top priority
to vigorously prosecute those who violate Federal obscenity
statutes. In a recent speech to the Hoover Institute, the
Attorney General stated, ``Another area where I will continue
to advance the cause of justice and human dignity is in the
aggressive prosecution of purveyors of obscene materials.''
This renewed effort is particularly important since
mainstream American companies seem increasingly willing to
associate themselves with pornography, even hard-core
pornography. Over half of all pay-per-view movies in hotels
across the country are now pornographic. According to recent
reports, Adelphia Communications, reversing a longstanding
policy, just became the first leading cable operator to operate
the most explicit category of hard-core porn. The Los Angeles
Times writes that, quote, ``Adelphia joins a marketplace
already teeming with ways to procure hard-core sexual
content.''
The Internet has become a carnalcopia with graphic images,
videos, and cartoons. EchoStar Communications Corporation, the
nation's second-ranking satellite TV provider, has offered
triple-X programming for several years on its DISH Network.
Satellite leader Direct TV Group, Incorporated, peddles fare
that falls just shy of triple-X.
The explosion of sexually explicit material is not a
problem that exists in a vacuum of constitutional theory.
Government has a compelling and real life interest in the
matter because of porn's adverse effects on individuals,
families, and communities in the forms of criminality and
addiction and family breakup.
Several months ago, I chaired a hearing where scientists
and psychologists testified about the growing problem of
addiction to sexually explicit material, which is destroying
individuals and their families, adversely affecting
productivity at work and negatively impacting healthy child
development. Four years ago, a scientific survey found that six
percent of respondents met the criteria for a full-fledged
pornography addiction. Other estimates of the percentage of the
population suffering from an addiction to porn are considerably
higher.
Seventy-two million Internet users visit pornographic
websites per year. One expert in cyber addiction asserts that
15 percent of online porn addicts develop sexual behavior that
disrupts their lives. She writes that, quote, ``The Internet is
the crack cocaine of sexual addiction.''
The expanded reach and pervasiveness of pornography also
affects our families and our children. According to recent
reports, one in five children ages ten to 17 have received a
sexual solicitation over the Internet, and nine out of ten
children ages eight to 16 who have Internet access have viewed
porn websites, usually in the course of looking up information
for homework.
There is strong evidence that marriages are also adversely
affected by addiction to pornography. At a recent meeting of
the American Academy of Matrimonial Lawyers, two-thirds of the
divorce lawyers who attended said that excessive interest in
online pornography played a significant role in divorces in the
past year. Pornography by itself, not as part of an accusation
of adultery, has begun to arise with alarming frequency in
divorce and custody proceedings, according to divorce experts.
Pornography had an almost non-existent role in divorce just
seven or eight years ago. Roughly 65 percent of the people who
visit the Center for Online Addiction do so because of martial
problems created by pornography, according to the founder of
the Center.
And now just recently, we have out of Southern California
examples of human trafficking of individuals trafficked into
the porn industry for use by the porn industry.
These and others demonstrating effects provide an important
real-life backdrop for this hearing, which will emphasize two
well-established legal principles. First is that the Supreme
Court has clearly and repeatedly held that obscenity does not
merit First Amendment protection. The second is that the
government has a legitimate and constitutionally valid interest
in regulating obscenity through, among other things,
enforcement of relevant Federal and State statutes. We also
will hear the opposing view, that the First, and for the first
time, 14th Amendment protections apply to obscene material that
has traditionally been seen as falling outside of those
protections.
We have a distinguished panel to speak today. First is
Professor Robert Destro of Catholic University of America's
Columbus School of Law. Professor Destro is Co-Director and
founder of the Interdisciplinary Program in Law and Religion
and he previously served as Commissioner on the U.S. Commission
on Civil Rights.
Second is Patrick Trueman, Senior Legal Counsel at Family
Research Council. Mr. Trueman previously has served as the
Chief of the Child Exploitation and Obscenity Section of the
Criminal Division at the U.S. Department of Justice.
And our final panelist is Professor Frederick Schauer of
Harvard University's Kennedy School of Government. Professor
Schauer is a former Professor of Law at the University of
Michigan, Chair of the Section on Constitutional Law of the
Association of American Law Schools, and Vice President of the
American Society for Political and Legal Philosophy.
It is an excellent panel on a current and tough topic.
Gentlemen, thank you very much for being here today. As I
mentioned, if Senator Feingold comes in, we may have to break
into your testimony to hear his opening statement. We will just
play that as it goes along.
We will run the time clock at seven minutes. You are
entitled to--if you need to go a little longer, that is fine.
We just have the one panel here today. And if you want to put
your full statement in the record and then just summarize, that
is acceptable, as well, and your full statements will be placed
in the record.
Professor Destro, thank you for joining us.
STATEMENT OF ROBERT A. DESTRO, PROFESSOR OF LAW, COLUMBUS
SCHOOL OF LAW, CATHOLIC UNIVERSITY OF AMERICA, WASHINGTON, D.C.
Mr. Destro. Thank you, Senator. Thank you for having me
today, and I would, with your permission, put my statement in
the record.
Chairman Brownback. Without objection.
Mr. Destro. All right. Let me--I am just going to do a
little bit of summarizing of the testimony. I think there is
nothing more boring than just reading it into the record. Let
me start out with something that--I am going to use a kind of a
common name, but the importance of the name-calling in
constitutional law. And in this area, when you are talking
about the regulation of the sex industry, if you call it
``pornography,'' it is not protected. But if you call it
``speech,'' it is protected.
Now, in constitutional law, we have a name for that name
calling. It is called characterization. In constitutional law,
he or she who controls the initial characterization usually
wins the case. And what my testimony is about today is the
perspective with which I think this Committee should look at
the issue of regulation of this topic.
You can start by looking at this as a question of market
regulation and focus on the pornography industry. That has
certain advantages to it in that what you are really talking
about is business transactions and lots of money and lots of
illegal behavior. And if you focus on it from that perspective,
you never really even get to the First Amendment unless you are
of the view that Justice Douglas was, that sex acts between
consenting adults were a form of free speech. He talked about
that in Griswald v. Connecticut. But setting that aside, nobody
else really takes that view.
Or you can look at it as a perspective of we are going to
be regulating content. That, then, gets you into the content
and the perspective of speech and really almost an endless
morass of First Amendment analysis where you get into the
question of how much redeeming social value is there in this
particular movie or videotape or website or virtual reality,
and you get into kind of almost unanswerable questions about
just how much, under the Court's decisions, does this really
appeal to someone's prurient interests? I suppose the easy
answer to the question is that if they are willing to pay for
it, it must appeal to them.
And so that is why I think that a case like Extreme
Associates is such an interesting case, because it quite
properly, in my view, ignores the First Amendment. The judge, I
think, took great pains not to mention the First Amendment. The
problem is that as he did so, he ignored the rest of the
Constitution at the same time. He forgot John Marshall's oft-
quoted comment that if the Constitution were expounding, and he
focused only on the right side and not on the regulatory pieces
of this puzzle.
He creates a right to privacy that, if taken to its logical
conclusion, would legalize prostitution, because if indeed you
have a right to sexually explicit material that is made by
others out in Hollywood or wherever they make it, I suppose you
could make the same argument that under Griswald and Lawrence
you would have a right to have it made right in your living
room, at least under the judge's reading of those 14th
Amendment cases. The Congress's power to regulate the economy
and the industry just drops out of the equation altogether.
So what I would like to suggest is an initial question,
which is as this Committee opens its deliberation, whether its
goal is to score easy symbolic points, which brings me back to
that question of whether or not you are going to be in this to
do some finger pointing or name calling, or whether or not you
want to regulate certain very specific behaviors that are both
easily defined and not constitutionally protected.
So let me give you some examples. The sale of sex as a
commodity is against the law in almost all the States. A few
years ago, our Law Review published an interview that a couple
of law professors had done with Larry Flynt, and as many of you
know, Larry Flynt has always been held up as the paragon of the
defenders of First Amendment values. The article, I didn't
think, was very good. The writing around Larry Flynt's
interview was not very good, but Larry Flynt's interview was
actually quite fascinating because they asked him about the
First Amendment.
He says, ``Well, no, that wasn't really the point.'' He
said that his goal really was to open up, and I am putting
words in his mouth but this is the rough equivalent--he wanted
to have a chain of sex stores, that in the end, he thought that
there should be a freedom to kind of buy and sell sex just like
you did any other commodity. And I thought, well, finally, he
is actually kind of--when you get the Larry Flynt unvarnished,
he is a salesman.
And that is what I would suggest that we are looking at
here, is that we are looking at the sale of sex as a commodity.
We are looking at sex slavery and trafficking, which is a
serious problem not only here in the United States but around
the world. In the case of Extreme Associates, you are looking
at exploitation, at battery, and at all kinds of other
behaviors that certainly can be regulated under the criminal
law.
And it seems to me that if you were--even if you take
Professor Schauer's view that the primary focus should be on
the regulation of child pornography, that is simply another
example of exploitation and I would say, yes, let us go ahead,
and we have already started with that. We all have broad
agreement on that. Now let us look at the other kinds of
exploitation that need to be regulated, as well.
So my suggestion to the Committee is that you, too, like
the judge in Pennsylvania, Judge Lancaster, you, too, can avoid
the First Amendment and you can do it if you are clear and if
you focus on the commercial aspects of what is going on. Thank
you.
Chairman Brownback. Thank you very much.
[The prepared statement of Mr. Destro appears as a
submission for the record.]
Chairman Brownback. Mr. Trueman?
STATEMENT OF PATRICK A. TRUEMAN, SENIOR LEGAL COUNSEL, FAMILY
RESEARCH COUNCIL, AND FORMER CHIEF, CHILD EXPLOITATION AND
OBSCENITY SECTION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Trueman. Thank you very much, Chairman Brownback, and
thank you for your leadership on this issue of obscenity.
I, as you mentioned, served as the Chief of the Child
Exploitation and Obscenity Section at the U.S. Department of
Justice at the end of the Reagan administration through the
entire administration of President George Herbert Walker Bush.
I worked under three Attorneys General and they had--those
three Attorneys General, Meese, Thornburg, and Barr--had a very
active effort underway to prosecute producers and distributors
of obscenity. We brought many cases all across the country.
The nature of obscenity with respect to its constitutional
status had been clear for decades before this, but the Justice
Department prior to the term of Attorney General Meese for 20
years had not prosecuted obscenity hardly at all. Then the
Justice Department reversed course because of the Attorney
General's Commission on Pornography. When it issued its
findings, it called for a strike force or a task force of
attorneys at the Justice Department to lead the effort against
the producers and distributors of obscenity. That is something
that Mr. Meese established. It later was called the Child
Exploitation and Obscenity Section in the Criminal Division.
It goes without saying that the leadership of the Attorney
General, the nation's chief law enforcement official, is
critical in defeating crime, and that was certainly the case
with General Meese and his two successors in the Bush
administration, General Thornburg and General Barr. Each took a
strong hand in making sure that U.S. Attorneys across the
country, as well as Federal investigative agencies, pursued
obscenity cases.
During my several years at CEOS, we found that obscenity
law was quite workable, and moreover, well understood by jurors
who had to make decisions on the guilt or innocence of fellow
citizens.
To those who argue that the prosecution of obscenity crimes
is a waste of time or an unwise use of resources, I would like
to point out that during the time that I was Chief of CEOS, we
received more than $24 million in fines and forfeitures as a
result of our aggressive prosecution efforts. That is more than
the budget of CEOS during those years.
I would point out that the public expects the Justice
Department to enforce the law. Some want to say that if you
enforce obscenity laws, you will necessarily reduce the number
of prosecutions of child exploitation laws. However, I don't
believe that is true, that one can be pitted against the other.
Sure, there are finite resources, but I think when the public
looks at the lack of enforcement on obscenity, they may say,
why is the Justice Department spending tens of thousands of
dollars prosecuting Martha Stewart and incarcerating here
whereas the pornographer who is spamming illegal pornography
into my son's e-mail account goes free?
There were two large-scale obscenity prosecution projects
undertaken by the Department of Justice when I worked for CEOS.
One was Project Postporn, which targeted mail order
distributors of illegal pornography, obscenity, who advertised
their materials by buying up mailing lists indiscriminately of
people across the country, including children, and would send
sexually explicit advertisements. The advertisements themselves
were found to be obscene in many of our cases. In that case,
Project Postporn, we had 24 individual--excuse me, 50
individual or corporate convictions in 24 cases spread across
20 Federal districts, U.S. Attorney districts. That prosecution
effort effectively ended the practice of sending pornographic
advertisements through the mail by these companies.
For the second large scale prosecution project, we targeted
the major producers and suppliers of obscene material in the
United States. With the cooperation of the Los Angeles Police
Department Vice Squad, we assembled a list of the top violators
of Federal obscenity laws, which was about 50 companies at the
time. Most of them were located in the Los Angeles area. We
brought then all the United States Attorneys who had an
interest in prosecuting obscenity together at a Los Angeles
conference, outlined who these distributors were and these
producers, with the help of the Los Angeles Police Department,
and divided up the cases in about 30 United States Attorneys'
districts, and then we vigorously prosecuted these companies,
about 20 of which were convicted. I think there were at the
time, probably of those 20 companies, something in the
neighborhood of 75 to 100 individual convictions.
Our prosecution strategy in this project was ultimately to
bring cases against all the major producers and distributors
and against a wide variety of material. We didn't just select
the hardest of the hard core material. We wanted juries to
decide what they found to be obscene in their district, and
that is the nature of what Miller v. California, the seminal
obscenity case by the Supreme Court, allows. We believed it was
important to let juries decide what was obscene, and we found
that juries, looking at a variety of material, from the hardest
to the most mild of what we considered to be obscene, regularly
said that the material was obscene and were willing to convict.
I have done several grand juries myself where we asked the
people in the jury to decide whether material is obscene, and
my own experience has been that people who regularly watch
movies that are obscene will ask questions in the grand jury,
saying they didn't know it was obscene, are they doing
something illegal, but yet those people, when told that, yes,
in fact, it may be obscene, will also vote for an indictment on
obscenity against a pornographer.
By the end of the administration of President Bush, we were
successful not only in gaining convictions throughout the
country, but in actually changing the nature of hard core
material that was produced in the United States. Themes of
rape, incest, bestiality, pseudo-child pornography, all common
themes prior to our prosecution efforts, disappeared from store
shelves in many cities and were no longer produced at all by
the major producers of obscene material. Many of the
distributors of hard core pornography that had not been
prosecuted refused to ship products into States where we
brought prosecutions.
I will end here just by saying that I am encouraged by the
Attorney General's recent statements that he will vigorously
prosecute obscenity. I think that he will find that he has the
public support in doing so and that the juries across America
will convict. I encourage the Department to prosecute on a wide
variety of material. Don't be afraid to prosecute anywhere in
the country. We got convictions in Las Vegas, so-called ``Sin
City,'' in Los Angeles, Minneapolis, Florida. Wherever we
brought cases, we got convictions.
I would ask, Mr. Chairman, that my full statement be
introduced into the record. Thank you.
Chairman Brownback. Without objection. Thank you very much,
and I know you are getting over the flu, so thanks for hanging
in there. And if he starts to move, either of you witnesses, I
would move, too, if I were you.
[Laughter.]
Chairman Brownback. But thanks for making it.
[The prepared statement of Mr. Trueman appears as a
submission for the record.]
Chairman Brownback. Professor Schauer?
STATEMENT OF FREDERICK SCHAUER, FRANK STANTON PROFESSOR OF THE
FIRST AMENDMENT, JOHN F. KENNEDY SCHOOL OF GOVERNMENT, HARVARD
UNIVERSITY, CAMBRIDGE, MASSACHUSETTS
Mr. Schauer. Thank you, and I would like to enter my
statement in the record, and in addition, before I start, I
would like to thank you for starting this hearing somewhat
later than hearings normally start in this city. This was done
as an accommodation to me because of my class schedule, and I
very much appreciate it.
I should mention at the outset, I have been writing about
the law of obscenity for about 30 years now, including a book
entitled The Law of Obscenity. I also served in 1985 and 1986
as a Commissioner of the Attorney General's Commission on
Pornography. I was the principal draftsman of the Commission's
findings and recommendations.
But I should say that although there are many people who
believe that obscenity law as it now exists is unconstitutional
and violates the First Amendment, I am not one of them. I have
long believed that obscenity as strictly defined by the 1973
case of Miller v. California lies outside of the coverage of
the First Amendment. I still believe that.
But obscenity prosecutions, as defined according to Miller
v. California and the seven other cases decided on that day and
a number of cases decided thereafter, remains constitutionally
permissible under the First Amendment, that does not, as you
know, end the inquiry. The inquiry then moves to the question
of under what circumstances would the constitutionally
permissible under the First Amendment prosecution of obscenity
be desirable?
And in addressing that question, I ask the Committee and I
ask you to at least take into account three considerations. The
first of those considerations is guided, Mr. Chairman, by your
own statement in the article you wrote with Senator Hatch about
the Extreme Associates case that judges should not ignore the
law in favor of their own agenda. I 100 percent agree with
that. I also believe, however, and I would hope that you would
agree, that ignoring the law in favor of their own agenda is
not only a judicial vice, but is also potentially a
prosecutorial vice. I raise this issue because I believe the
same applies to prosecutors, and I raise the issue against the
background of two specific and possibly some number of other
examples.
I am troubled by Professor Destro's statement in his
written statement that obscenity law is a mess and that we need
legislative redefinition and legislative resuscitation along
different lines in light of the fact that obscenity law is now
a mess.
Somewhat more troubling to me are the continuing statements
from 1986 until the present, and most recently last spring at
an event at which I was present, by Mr. Bruce Taylor, now
Senior Counsel of the Department of Justice and with principal
responsibility for obscenity prosecution, that there ought to
be a per se rule about what is or is not obscene and that, and
here I quote from him, ``penetration clearly visible be an
important component of the standard for determining what is or
what is not obscene.''
These and other efforts to move or change or adjust or
modify the existing and, in my view, constitutionally
permissible Miller v. California standard from 1973, are a
cause of some concern to me, and I would ask you, Mr. Chairman,
in investigating this issue to seek assurance on behalf of the
Committee that prosecution will be in accordance with the
Miller standard strictly defined rather than be used as a way
of modifying, expanding, changing, redefining, resuscitating,
or in some other way changing the existing, and as I said, in
my view, constitutionally permissible under the First Amendment
law of obscenity.
I also believe that priorities are a genuine issue. I agree
with Mr. Trueman that one cannot say that there is one thing
that is top priority and everything else ought to be eliminated
simultaneously. No sensible policy analyst, and I am now
surrounded by many of them at my institution, would believe
that.
Nevertheless, as long as we divide up the prosecution, as
long as we divide up the agenda, as long as we divide up the
structure of the Department of Justice the way we do, that
unless there is a substantial infusion of new funds, there is a
high risk that an increase in obscenity prosecutions will be at
the expense in the short term and the intermediate term of
child pornography prosecutions. To do so, to substitute
obscenity prosecutions for child pornography prosecutions,
would, in my view, be an unfortunate reallocation of scarce
governmental resources away from what, in the view of myself
and many others, is the most pressing issue.
Finally, if I may make reference back to the report of the
Attorney General's Commission on Pornography. It has been
mentioned a number of times in this hearing. I don't want to
claim too much pride of place here. It can be read by
everybody. Nevertheless, if we are to go back to the report and
draw guidance from that report, in my view, one of its central
features was that it divided the category of Miller-defined
legal obscenity into the categories of material that endorsed
and promoted explicitly violence against women, material that
endorsed and promoted explicitly the degradation of women, and
material that was neither endorsing of violence against women
nor that was endorsing a degrading of women.
In light of those three categories, the Attorney General's
Commission recommended prosecution of legal obscenity in the
first category and in the second category, but as to the third
category, the Commission made no recommendation. I am troubled
here in part by the attempt to use the report of the Commission
as endorsement for the prosecution of legally obscene materials
that neither promote nor endorse explicitly the violence
against women, but I am much more concerned, Mr. Chairman, by
the fact that the issues of violence against women, the issues
of degradation of women, the issues that frame the report of
the Attorney General's Commission on Pornography seem to have
so significantly dropped off the agenda of these hearings.
The agenda, the issues have been dramatically transformed
from the issues as they were understood by the Attorney
General's Commission and I would very much hope in thinking
about what to prosecute or whether to prosecute, the enormously
pressing issue of violence against women and what might foster
it and the evidence about that not be removed from center
stage. Thank you.
Chairman Brownback. Thank you.
[The prepared statement of Mr. Schauer appears as a
submission for the record.]
Chairman Brownback. This is an excellent discussion, for me
a great tutorial following on the hearing we had last fall
about the addictiveness of pornography and the impact on
families to get the factual basis of what we are having and
then the legal arguments taking place here. It is very useful
to put those side by side.
I want to enter into the record an article from the Los
Angeles Times dated March 5 of this year about a probe into
human trafficking to the sex slave trade, and I want to draw
your attention to this, if I could, particularly, I think,
Professor Schauer on this one, if I could.
I met with the City Councilman just yesterday, Councilman
Cardenas, about this topic. I don't know, have you seen this
article?
Mr. Schauer. I have not seen it.
Chairman Brownback. Okay.
Mr. Schauer. I am familiar with the issue.
Chairman Brownback. What we are finding, when I worked with
Senator Wellstone and his wife on sex trafficking before their
untimely death, and it is a topic that--it is one of the lead
slavery issues in the world today. And what we are finding in
this, apparently, we are seeing people trafficked into the
pornography industry for porn. This is just a quote here from
the article. Quote, ``A lot of people are promised jobs once
they come here, but when they get here, they are forced into
labor or the sex trade.'' This is a lawyer with the Department
of Health and Human Services. And apparently, this is a
lucrative business to move people into.
I take it from your statement, Professor Schauer, this
would clearly fall in the category of what you think we should
be prosecuting because it is violence against women.
Mr. Schauer. I think there is an issue here that we need to
address that distinguishes obscenity from child pornography. I
have absolutely no doubt that the underlying conduct that you
have just described ought to be prosecuted with the greatest
vigor that the law has available. The underlying conduct is
conduct that undeniably exists. It existed in 1985 and 1986. It
is recounted in great detail in the report of the Attorney
General's Commission.
However, it is an existing and pretty well settled across
the spectrum of the First Amendment and across the spectrum of
First Amendment authorities that the fact that the underlying
conduct is itself illegal and appropriately prosecutable does
not necessarily mean that photographs of it, films of it, or
descriptions of it can themselves be prosecuted.
Child pornography is a notable exception to that, and when
the Supreme Court in New York v. Ferber in 1982 allowed the
prosecution of child pornography on the theory that the
underlying conduct was illegal and exploitative, it made clear
to reaffirm that this was a principle that applied to child
pornography and that it was not at the time changing its
underlying views about whether that principle applied to
obscenity. On the existing state of the law, the illegality or
appalling exploitation of the underlying conduct justifies
drying up the market for photographs and films of that conduct.
For child pornography, yes, but on the existing state of the
law for adult obscenity, no.
That is to some extent consistent with a wider range of
cases, including the Pentagon Papers case, Landmark
Communications v. Virginia, Bartnicki v. Vopper, and others in
which the illegality of the underlying conduct does not affect
the question of First Amendment protection. Unless obscenity is
moved into the child--
Chairman Brownback. Let me sharpen my question for you on
that, then--
Mr. Schauer. Sure.
Chairman Brownback.--because I have been working on this
for some period of time and this is really an awful trade. I
have met with girls that have been trafficked in Nepal and
Israel and--
Mr. Schauer. I agree.
Chairman Brownback.--Thailand and America, and that is
where this is taking place. And we are even finding reports--we
haven't verified this--of people doing the pornography filming
in a foreign country, developing country, and then shooting it
in here, because then you don't have to traffick somebody in
and you have just trafficked the film in. But if you don't
address that marketplace basket here, aren't you just
continuing to ask for more of that?
As I understand, you are saying, prosecute the crime that
is being conducted, but don't prosecute the distribution of the
material. And yet if this is then okay overseas, then we start
seeing this being brought in or people going over to film
someplace in Central Asia and shooting it in, aren't you going
to have to get at the product to be able to truly address this?
Mr. Schauer. All I am suggesting is that in order to get at
the product, existing law would have to be changed
dramatically. I don't deny the economics of the fact that if
one dries up the product, one makes it harder to engage in the
underlying conduct. That is what the Supreme Court said in
Ferber. The economics of that relationship exist.
I am here in part, consistent with the earlier things that
I have said, to warn against, for pragmatic reasons as well as
constitutional ones, of pressing too hard against existing and
well-settled law, and in this area, the law is pretty well
settled. I would enthusiastically support redoubled prosecution
of the underlying conduct, and the fact that the underlying
conduct is itself aimed at potentially being part of a film is
no First Amendment defense whatsoever. I would agree with you
entirely, the underlying conduct is something we should deal
with. I would like to deal with it within the boundaries of
existing law because attempts to change the existing law are
always fraught with danger.
Chairman Brownback. Professor Destro, you talked about
regulating on this. What about regulating the filming of
somebody that is trafficked into here, or let me draw the
example I did earlier about overseas, the filming of this by
individuals and then the movement of the product into this
marketplace. How would you regulate or deal with that?
Mr. Destro. Well, I agree with Professor Schauer that the
reason that I say that the law is a mess is that if you are
trying to get at it in terms of what is the effect of the film
on the viewer, then you are going to run into all the well-
settled law that he describes, and I don't disagree with his
description of that at all.
My suggestion is that what you do is that you focus on the
underlying behavior that is going on here. What you have is
trafficking in--I mean, these people are accessories to
prostitution. You are going to have to, just like you do in
trying to interdict the drug trade, to figure out where the
important pressure points are going to be.
So you could easily prosecute someone for the, not so much
under a pornography theory but under an accessory to
prostitution theory--
Chairman Brownback. Overseas? Overseas? Let us say this
filming takes place somewhere overseas in a developing country.
Mr. Destro. Well, you could make the importation of that
kind of material, focusing on the underlying behavior, illegal,
too. Congress does control the borders and it can do it, but if
you are an accessory to prostitution in another country and you
are bringing in your wares, whether they are the people or they
are the products of their labors in those countries, I think if
you keep the focus on that behavior, you are going to be on
much stronger grounds.
Chairman Brownback. Mr. Trueman, if the Extreme Associates
case is allowed to stand upheld, will we be able to prosecute
any obscenity cases in the future?
Mr. Trueman. No, I can't imagine that you would. I think
that Extreme Associates, the ruling itself is so extreme that
obscenity prosecutions would go by the wayside.
Mr. Trueman. Could I add something about something that was
said here? May I just quickly?
Chairman Brownback. Yes.
Mr. Trueman. I just want to take issue with something that
Professor Schauer said here, with due respect to him. He
mentions that the Attorney General's Commission divided up the
nature of pornography and material that is violent or, in the
second category, degrading to women, should be prosecuted.
Other pornography, the Commission didn't form an opinion on.
And I think he is arguing that just those two categories should
be prosecuted.
I think there is a real danger in the Justice Department
drawing these lines. Communities should draw the lines. The
Supreme Court has outlined what may be found to be obscene.
Now, at the Justice Department when I was there, we would bring
prosecutions with a variety of material. We wouldn't just go
after a pornographer and pick the worst film, which we would
likely get a conviction on, because then the community standard
becomes that that material in that worst film meets the
community--is out of bounds for that community.
But if you bring a prosecution across the range of material
that the pornographer is selling or distributing into the
community and the jury convicts on all of it as obscene, then
you have established a community standard and pornographers are
thinking, we have got to stay out of that State or that
community because a variety of material has been found to be
obscene. I think that is wise, letting the community decide
rather than the Justice Department.
Chairman Brownback. This is just as a layman question, and
as somebody that runs for public office and then meets people
all the time. The people are just fed up with getting hit with
this stuff in their face all the time and their kids on the
Internet and at the grocery store when they exit, or on a
billboard. It wasn't that long ago it wasn't this way, and this
industry is a very large industry now, I don't know how many
billions. I have seen different numbers on it. But it is a
substantial business. Is it because of the lack of prosecution
that we see the pervasiveness of pornographic material in
America today?
Mr. Trueman. Yes, I certainly think it is, and by the way,
we had a witness who turned in one of our biggest cases, a
prominent man who told us that there is as much money under the
table in the pornography industry as there is above, and we
certainly think that is true, or did at the time at the Justice
Department.
But if there is a lack of prosecution, then the people
don't have a voice. The prosecutor substitutes his judgment for
the judgment of the people and juries who would decide these
questions. If the prosecutor ignores the law and refuses to
prosecute, as we are seeing across the country, and then the
pornographers have free rein of the community.
You are also seeing as a result of this lack of prosecution
mainstream companies, as you pointed out in your opening
statement, thinking, what is the downside? Now, you mentioned
the Adelphia Communications, a cable company, just one of the
cable companies that is distributing potentially obscene
material. There is also many hotel chains that are distributing
potentially obscene material.
And by the way, we opened an investigation of hotel chain
distribution of obscenity when I was at the Justice Department.
Apparently, that was closed in the next administration. But
these corporations would not venture into this area if they
knew the Justice Department was serious about enforcing
obscenity law.
When I was at the Justice Department, we prosecuted what
was at the time the only satellite distributor of obscene
material. I mentioned it in my testimony. That company was
distributing material via a GTE satellite, and we prosecuted
them in Utah, where we had a complaint. The GTE send Brendan
Sullivan, prominent Washington attorney, to Utah to tell the
U.S. Attorney's Office that GTE didn't realize until the grand
jury began that they could be indicted for distributing
obscenity even though they were only a conduit for the
obscenity. They cut that company off and refused to allow it
again. I think things have changed now.
So what I am saying is if you begin prosecuting these
mainstream companies, Dow-traded or NASDAQ-traded companies are
not going to continue distributing obscene material for fear of
losing shareholder value.
Chairman Brownback. Thank you.
We have just gotten a vote called, and so I am going to
turn to Senator Feingold for any statement he might want to
make before we have to go over and vote.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Mr. Chairman, I want to apologize. In
fact, the vote is on the Feingold amendment and that is the
reason why I wasn't here. I certainly would not have chosen
this time to offer my pay-go amendment, but I was not given a
choice, so I do want to apologize to you, Mr. Chairman, for not
being here, but also to thank you.
You wanted to hold this hearing a few weeks ago, and
because of not getting certain testimony at that time, you were
kind enough to postpone the hearing, and I really appreciate
that and look forward to working with you as the Chairman of
this Committee.
I will simply put my statement in the record, and I want to
thank the witnesses for coming. I also will review the record
and perhaps submit some questions in writing, if that would be
acceptable.
Chairman Brownback. Absolutely.
Senator Feingold. I would just ask that. Thank you, Mr.
Chairman.
Chairman Brownback. Thank you.
If I could, Mr. Trueman, looking further at this, I have
had some attorneys say to me that they would prosecute these
form of cases, but they are local prosecutors and they will
come up against national lawyers on the other side of the case
and they need information and assistance. They don't know how
to prosecute on a local basis or a State basis an obscenity
case. Do you offer any--is there any help for them in
prosecuting these cases?
Mr. Trueman. Well, the pornography defense bar is very
small. There are about nine or ten attorneys who defend these
cases when they come up around the country, whether it is a
Federal prosecution or a local prosecution. A local county
prosecutor will be overwhelmed with pretrial motions and find
that their office is spending a huge percentage of their budget
on one obscenity prosecution, and win or lose, they usually
don't bring a second one. That is the intent, I think, of the
pornography industry.
Reuben Sturman, when he was alive and identified, by the
way, by the Attorney General's Commission on Pornography as the
top pornographer, offered to provide defense counsel to any
pornography shop carrying his material.
So local prosecutors have a difficult time, I will
acknowledge that. They can get help from the Justice Department
in terms of pretrial motions. Bruce Taylor at the Justice
Department, who was mentioned here earlier, has participated in
more cases than anyone. He has got a brief bank that is, I
think, available to anyone. The Justice Department also has
that.
But this is the reason why I always advocated when I was at
the Justice Department, and still do, that prosecutions should
primarily be done by the U.S. Department of Justice because
they can match shot for shot the defense bar in these cases.
The Justice Department won't be overwhelmed. They won't stop
doing a case just because it has been drawn out and expensive
to do. So I think it is vital that the Justice Department gets
back to a point of vigorously prosecuting.
Chairman Brownback. I have to say, gentlemen, I am very
pleased with your testimony and information on this. This is a
very troubling topic to me today and our society. I have said
at hearings I have held previously on this, its impact on
families, the expansion taking place, trafficking now into an
extremely lucrative business, and it is something that spans
the political spectrum. This is something that--the Councilman
I am working with in Southern California is Democratic.
Remember Paul Wellstone and I worked on the trafficking issue.
It is really hurting the society today.
I am hopeful that we can get some vigor in constitutionally
prosecuting cases of this nature because of its impact on the
overall society and culture, and it must be done
constitutionally and it must be done wisely in us moving
forward. But I also believe it must be done, and that if you
don't do these sort of issues, your society continues to
further and further engage and to allow, and you just continue
to, as Senator Moynihan would say, define deviancy downward.
He, whom I got to work with on cultural issues before and I
considered him a great tutor before he left the Senate and
passed away, would always view culture as one of the central
issues, and in many cases more important than government.
But here, you have government kind of allowing a culture to
move in a way that is not there in the law. But if you don't
enforce it, nothing in particular happens.
I would appreciate any further thoughts any of you might
have on this, because if we are looking at an increased
prosecution in this area, it needs to be, must be done
constitutionally, must be done wisely, and hopefully,
effectively so that what is constitutional is allowed. What
isn't, isn't, and we don't further harm our families. I get
more complaints from people than anything about, look, I just
don't want the culture to attack my family anymore. I would
rather have a culture that buttresses and builds it up. And
then when cases come along where you effectively eliminate all
prosecution of obscenities, if they are moving forward, I can
hear those same families saying to me, ``Now what do I do?'' in
the society. So I do hope you can help us as we move forward on
this.
I am appreciative of the panel, of your work. Many of you
have worked a great deal of your professional lives on this
particular topic.
I will keep the record open for seven days should other
members wish to submit their statements or other materials for
the record.
Thank you very much. The hearing is adjourned.
[Whereupon, at 3:58 p.m., the Subcommittee was adjourned.]
[Submissions for the record follow.]
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