[Senate Hearing 109-1023]
[From the U.S. Government Publishing Office]



                                                       S. Hrg. 109-1023
 
               OBSCENITY PROSECUTION AND THE CONSTITUTION

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

                                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
                                 ------                                

   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......................................................    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

                              ----------                              


                       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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