before the prohibition takes effect.

Through H.R. 4257, the burden which would be shifted to the porn operator is slight and yet its benefits to the innocent are numerous. Porn advertisers would be prohibited from sending out their sexually oriented materials unsolicited. This in itself protects the unsuspecting in their homes from offensive, sexually oriented materials. Alternatively, the porn operator would no longer be required to obtain list after list of names from the Post Office. Under H.R. 4257, the porn operator is still permitted to send sexually oriented materials at the request of the addressee. In addition, the porn operator may still send unsolicited advertisements for the same merchandise so long as the advertisement is not "sexually-oriented" in and of itself. In this way, the ideas and content are not affected, merely the presentation. It is one thing to

market a product, it is quite another to shock and offend senior citizens or children in the privacy of their homes.

However,

We are not imposing total censorship, nor are we trying to impede one of our most fundamental freedoms freedom of speech. just as everyone in this country is entitled to voice their ideas, everyone also has the right not to listen.

No one, not by broadcast, in person or by mail has a right to send these revolting materials into our homes. If some one came to our doors and read what was on this sheet, we could slam the door. If that same someone tried to enter our homes, we could press charges for tresspassing. Why does a difference in instrumentality change the

rights of people in their homes? It is time Congress recognize what the Supreme Court recognized when they said:

We therefore categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted

material into the home of another.

Rowan, 397 U.S. at 738.

Mr. HUGHES. I understand that our colleague, Joe DioGuardi, has a direct conflict and may not make it. So, without objection, I am going to receive his testimony for the record.

[The statement of Mr. DioGuardi follows:]

TESTIMONY OF THE HONORABLE JOSEPH J. DIOGUARDI (R-NY)
SUBCOMMITTEE ON CRIME

COMMITTEE ON THE JUDICIARY

JUNE 16, 1988

MR. CHAIRMAN, I WOULD FIRST LIKE TO THANK YOU FOR GIVING

ME THE OPPORTUNITY TO ADDRESS THE VERY IMPORTANT ISSUE OF

PORNOGRAPHY. YOUR AWARENESS OF THE NEED FOR A COMPREHENSIVE PORNOGRAPHY PACKAGE IS TO BE COMMENDED AND I AM HONORED TO SPEAK

BEFORE THE COMMITTEE.

MR. CHAIRMAN, I WOULD LIKE TO DISCUSS A BILL I INTRODUCED A YEAR AGO, H.R. 2605, THE CHILDREN'S HOME VIDEO PROTECTION ACT. AFTER RECEIVING COMPLAINTS FROM PARENTS ABOUT THEIR CHILDREN'S ACCESS TO OBJECTIONABLE VIDEO MATERIAL, I DISCOVERED THAT THERE IS CURRENTLY NO FEDERAL STATUTE WHICH PREVENTS A MINOR FROM RENTING OR PUCHASING PORNOGRAPHIC OR OBSCENE VIDEOS FROM A VIDEO

STORE. ALL A CHILD HAS TO DO IS TAKE HOLD OF THE FAMILY'S MEMBERSHIP CARD, GO TO THE LOCAL VIDEO RENTAL SHOP, AND HAVE THE VIDEO OF HIS OR HER CHOICE FOR THE DAY. MR. CHAIRMAN, SHOULDN'T THE REASONING BEHIND CURRENT RESTRICTIONS ON CHILDREN'S ACCESS TO OBSCENE MAGAZINES, PORNOGRAPHIC PHONE MESSAGES, ETC. APPLY TO THE VIEWING OF OBSCENE VIDEOS IN THE HOME?

TODAY, THERE ARE AN ESTIMATED 47.2 MILLION VIDEOCASSETTE RECORDERS IN AMERICAN HOMES, CONSTITUTING 53.3% OF ALL TELEVISION HOMES. THIS HAS CAUSED THE HOME VIDEO INDUSTRY TO EXPAND AT AN INCREDIBLE RATE, MAKING IT MORE DIFFICULT FOR PARENTS TO MONITOR WHAT THEIR CHILDREN CAN SEE. MY LEGISLATION WOULD MAKE SELLING OR RENTING OBSCENE VIDEOS TO MINORS A MISDEAMEANOR, WITH A POSSIBLE ONE YEAR PRISON TERM. TO HELP PARENTS, I BELIEVE THAT

H.R. 2605 IS A NECESSARY STEP IN PROTECTING MINORS FROM FREELY

RENTING AND PURCHASING MOVIES WHICH ARE OBSCENE.

IT HAS BEEN SUGGESTED BY SOME GROUPS THAT THE MOVIE RATING

SYSTEM BE USED TO DETERMINE FEDERAL CRIMES.

HOWEVER, SUCH A

STANDARD WOULD MOST LIKELY BE STRUCK DOWN BY THE COURTS. THE
MOVIE RATING SYSTEM IS DETERMINED BY AN INDEPENDENT PRIVATE BODY;
THE GOVERNMENT CANNOT SIMPLY ADOPT THEIR STANDARDS AND I DO NOT
BELIEVE THAT THE GOVERNMENT SHOULD BE IN THE MOVE RATING

BUSINESS. IT WOULD BE A SAD DAY FOR ALL IF IT STARTED.

HOWEVER, THE SUPREME COURT HAS DEFINED "OBSCENITY" (MILLER

V. CALIFORNIA 1973, 413 US 15) USING A THREE-PRONGED TEST.
MATERIAL IS OBSCENE IF "THE AVERAGE PERSON, APPLYING CONTEMPORARY
COMMUNITY STANDARDS" WOULD FIND THAT THE WORK, TAKEN AS A WHOLE,
APPEALS TO THE PRURIENT INTEREST; IF THE WORK DEPICTS OR
DESCRIBES, IN A PATENTLY OFFENSIVE WAY, SEXUAL CONDUCT
SPECIFICALLY DEFINED BY THE APPLICABLE STATE LAW; AND IF THE
WORK, TAKEN AS A WHOLE, LACKS SERIOUS LITERARY, ARTISTIC,
POLITICAL OR SCIENTIFIC VALUE.

THE CRIMINAL PENALTIES IN MY BILL ARE NOT DRACONIAN;

HOWEVER, THEY WILL SEND A STRONG SIGNAL FROM CONGRESS THAT VIDEO STORE OWNERS HAVE A RESPONSIBILITY AS TO WHAT THEY SELL TO OUR

CHILDREN.

THE FACT THAT WE ARE SITTING HERE TODAY EXAMING SEVERAL PIECES OF LEGISLATION DEALING WITH CHILDREN AND PORNOGRAPHY REPRESENTS THE DEEP CONCERN THAT AMERICA HAS FOR ITS CHILDREN. THE ISSUE OF PORNOGRAPHY AND CHILDREN NEEDS TO BE ADDRESSED IN A COMPREHENSIVE WAY. EXPOSING CHILDREN TO PORNOGRAPHIC

MATERIALS IS REPREHENSIBLE.

THE PACKAGE WE ARE WORKING ON

ADDRESSES MANY ASPECTS OF THE ISSUE AND I BELIEVE MY BILL WOULD

COMPLEMENT THE BILLS MR. GREEN, MR. DORNAN AND THE HONORABLE

CHAIRMAN HAVE INTRODUCED TO PROTECT THE DECENCY OF AMERICA'S

FAMILIES.

I AM ENCOURAGED THAT THE SUBCOMMITTEE IS LOOKING AT MANY

PROPOSALS SO THAT WE AS A BODY CAN OFFER A SOLUTION WHICH DEALS

WITH THE ISSUE IN ITS TOTALITY.

THANK YOU, MR. CHAIRMAN.