upon the experience of Fr. Bruce Ritter at Covenant House in New York, which in its name, of course, is called Covenant House because so many of the persons who are exploited are of that critical age, between 18 and 21.

However, my view is that to raise the age for this consideration might jeopardize the constitutionality of everything else we are trying to cure and I would rather go with what we know would sustain constitutional muster, than experimenting and perhaps throwing out the baby with the bath water, as they say where I come from.

Mr. HUGHES. When did the Attorney General's Commission make its recommendations?

Mr. SEARS. The final report, Mr. Chairman, was issued in July 1986. As I stated earlier, a copy of that report was sent to each Member of Congress and to the various States.

Mr. HUGHES. And the Justice recommendations to the Congress, that is the bill that came to Congress came in late 1987.

Mr. SEARS. The President introduced the bill that is currently before you today in the form of H.R. 3889 in October of this past year. However, Congressman Dornan's bill-and I do not have all those numbers immediately before me-was introduced I believe in August 1986.

Mr. HUGHES. Why did it take the Justice Department, do you have any idea-you obviously were working with them-why did it take them about 18 months to get some recommendations to the Congress?

Mr. SEARS. I cannot make any-I did not work for the Department at that time.

Mr. HUGHES. Well, it is a complicated area. It is a controversial area and we obviously want to craft good legislation, constitutional legislation and still reach the conduct that we would like to prescribe. I suspect that it is because it is a very difficult area to navigate, unlike a medical waste bill which most people can agree with, because all you are doing is creating a felony offense and putting somebody in jail for 5 years for dumping medical waste in the ocean. This has a lot of constitutional mine fields to try to navigate.

You have been very helpful today. It has been a good panel. This is one area that gives the constitutional questions, gives this committee a great deal of concern, because obviously we have to do the proper balancing and that is going to be an important part of our task, and you have been very helpful to us today and we appreciate it.

Mr. REDISH. Thank you, Mr. Chairman.

Mr. SEARS. Thank you, Mr. Chairman.

Mr. HUGHES. Thank you.

Our third panel consists of Linda Steinman, James Schmidt, and Barbara Meade.

Ms. Steinman is an attorney at Weil, Gotshal and Manges, and is also counsel for the Association of American Publishers.

She received a BA degree from Yale University and a Doctor of Laws degree from Harvard Law School where she graduated

Mr. Schmidt is currently a Vice President of the Research Libraries Group and is director of the Research Libraries Information Network, an international network owned and operated by the Research Libraries Group.

He is a life member of the American Library Association and is the current and past chairman of its Intellectual Freedom Committee.

Ms. Barbara Meade is the proprietor of Politics and Prose, a bookstore here in Washington, DC, and is a member of the American Booksellers Association.

We thank you for your willingness to appear before us today. I want to apologize for the marathon session. I did not contemplate that this hearing would go until 2:30, 3:30, whatever it is going to be.

We have your statements which, without objection, will be made a part of the record, and we hope you can summarize for us. Why don't we begin with you, first, Ms. Steinman. Welcome. TESTIMONY OF LINDA STEINMAN, ESQUIRE, ATTORNEY AT LAW, WEIL, GOTSHAL AND MANGES, NEW YORK, NY, COUNSEL, THE ASSOCIATION OF AMERICAN PUBLISHERS; JAMES SCHMIDT, CHAIRMAN, COMMITTEE ON INTELLECTUAL FREEDOM, AMERICAN LIBRARY ASSOCIATION; BARBARA MEADE, PROPRIETOR, POLITICS AND PROSE, MEMBER, AMERICAN BOOKSELLERS ASSOCIATION, WASHINGTON, DC

Ms. STEINMAN. Thank you. As you mentioned, I am an attorney appearing today on behalf of the Association of American Publish

ers.

Like some of the others that have gone before me, the Association opposes only Title II of H.R. 3889, and not the section that is dealing with child pornography.

I am also going to voice our objections to the Pornography Victims Protection Act.

As you probably are well aware, the Association of American Publishers is the mainstream publishers association. It is not AAP's members who are producing the hard-core pornography or practicing the coercion that is the subject of concern.

Mr. HUGHES. You do not put out these publications?

Ms. STEINMAN. No; no. That is not us. But we are concerned, like others are, about a chilling effect on the types of works exploring sexual intimacy that are the very ones that the young and old should have an opportunity to view.

And so we ask, as you have stated before, that this legislation be fine-tuned, that it be a sensitive tool, and not a sledgehammer approach, and that is what we are afraid the bills, as drafted, really do-raise a sledgehammer toward obscenity and wipe out other things in the process.

I will turn directly to H.R. 3889. It creates a new Federal crime which is the receipt or possession, with intent to distribute, of any obscene book or other material, and then imposes what I would call devastating penalties for what often can be characterized as minor

In AAP's view it is simply excessive to throw a publisher or a bookseller into jail for 5 years for selling one obscene book, especially when we all know that the Miller test is not a litmus test. It is very difficult for a bookseller to be able to judge, in advance, whether some community will decide that a particular book is ob

scene.

We heard a great deal from Mr. Sears, that the problem here is organized crime. If that is the problem, then the bill should not be drafted to sweep in the publisher or bookseller that sells one book, and then gets sent to jail for 5 years.

It is a perfect example of how this bill is just excessive, how it is not well-tailored to the ill it is trying to attack.

When you have a bill that is so broad and imposes such severe penalties, there is a tremendous chilling effect. Any publisher or bookseller is likely to steer far wide of any potentially controversial sexually explicit work in this instance.

No one has addressed today, also, the problem that this bill will nationalize obscenity standards. When you have a bill like this and a town in Oklahoma decides that a certain book is obscene, a bookseller in Los Angeles is not going to take the risk of going to jail for 5 years to carry that book.

In the Miller case, the Supreme Court explicitly tried to devise a test that would allow separate communities around the nation to set different standards.

If you have this type of bill with the interstate commerce presumptions, and with the severe penalties like this, you get a national obscenity standard.

Turning to the forfeiture provisions of the bill, I believe they raise significant constitutional difficulties, as we have heard.

I would like to go into a little more depth about why they raise constitutional difficulties, which no one has detailed in great length.

The Supreme Court set out clearly, in Near v. Minnesota what is known as the principle of no prior restraint. It is impermissible, under the Constitution, to punish future speech because of past speech, and that is exactly what these forfeiture provisions try to do.

We heard some of the language. They would love to go in and close down those businesses. They would love to stop those guys from, you know, sending out all the filth.

Unfortunately, you know, or, rather, fortunately, under the Constitution, you cannot prejudge, you have to look at each individual work, and not shut someone off from speaking because something else they produced was technically obscene.

And so these forfeiture provisions do present significant constitutional difficulties. It has not been mentioned as well, by Mr. Sears, that these forfeiture provisions, under the RICO-like acts, are under constitutional challenge right now.

The Supreme Court, in October, is scheduled to hear the Fort Wayne case which will examine these very types of arguments, that forfeiture provisions under RICO are unconstitutional.

And I would seriously suggest that it is time to wait and see what the Supreme Court says about these things before marching

forward quickly, and putting in new forfeiture penalties without the guidance of the court, that should be forthcoming shortly.

Finally, in this regard, I would like to clarify a point that Mr. Sears made, saying that, well, if we have forfeiture provisions in RICO, what is the problem with having forfeiture provisions here? And I would like to add that RICO, while certainly a problematic statute, does have many other requirements. There must be a pattern of criminal activity. There must be a RICO enterprise.

And so, again, we would at least attack the organized crime type of purveyors of obscenity rather than chill the bookseller and publisher who might innocently go across the line.

Also, I would like to add, that the seizure and forfeiture provisions do not meet the constitutional standards set out in Freedman v. Maryland.

Just as a very quick example, under this bill, as soon as the Government alleges that assets are subject to forfeiture, they can immediately order the forfeiture.

Freedman made very clear that the Government has the burden of proof of demonstrating that the stuff is obscene. This bill needs that type of provision if it is going to pass constitutional muster. Turning to the Pornography Victims Protection Act, 1213, this is a bill which clearly aims to remedy coercion of adults into sexually explicit visual depictions, but has the effect of infringing upon, and potentially severely punishing, constitutionally protected non-obscene speech.

There have been a couple of statements from supporters of the legislation that because it regulates conduct as opposed to speech, that this law is trouble-free from the First Amendment, which is certainly not true.

As others on the panel discussed, when a statute impacts on speech, the least restrictive means must be employed so that speech is not unduly harmed.

Many of the constitutional problems from this bill stem from the fact that the drafters attempted to squeeze it into a bill which explicitly governed the sexual exploitation of minors, and as others have said, as the Ferber case said, very special considerations relate solely to minors and permit special protective legislation on their behalf.

Those special considerations for minors alter the First Amendment analysis. While the protection of adults from coercion is undoubtedly a legitimate Government concern, the AAP does not believe that legislation which tramples on First Amendment expression, to the extent of the proposed law, is a proper or constitutionally acceptable way to express that concern, which is so much less weighty than protecting children.

I would like to concur with the division that was made by Professor Schauer, and the others, in terms of the difference between punishing the act of coercion and punishing the distribution of coercion.

Those who actually perform coercion are morally responsible actors in a way that the person who subsequently distributes it is not a morally responsible actor. And again, while Ferber, arguably, legitimated the application of 2252 to instances of sexual exploita

tion of minors, adults cannot claim the same constitutional justification for these extreme steps.

Therefore, this bill would not employ the least drastic means if it went on to punish distributors and publishers.

To expand on a point that was made earlier, there is often little basis for a publisher or distributor to assess whether someone complaining of intimidation or coercion is really a genuine victim or simply has an ax to grind.

This statute has a 6-year statute of limitations. Six years after the fact, someone can decide they have now become a successful actress, they were a model, and they do not like the fact that they were in a sexually nude photo.

The publisher, even if the book is a work of serious literary, artistic or scientific value-whether it is a medical textbook or a famous photography compilation, under this statute the publisher would have to halt distribution right away, or else be subject to the very severe penalties.

I would add that if this bill were to pass-which I hope it would not-that at least an affirmative defense should be added for works of serious literary, artistic or scientific value.

But in any event, I think it is clear that there would be a tremendous chilling effect, and that this is not the most clean way to surgically attack the problem. Punish the coercion and not the speech.

Finally, just a couple of short recommendations, were a bill to be fashioned, again indicating that the AAP opposes any bill, but if any bill were to go through, the definition of sexually explicit conduct should be narrowed significantly, so it does not include things like simply lascivious exhibition of the genitals.

The statute should be limited to fraud and coercion, not intimidation. Intimidation is a word of very elastic meaning. One can simply be intimidated by social position or economic position, and it is not a word which has much meaning in the law.

Fraud and coercion have reams of cases telling you what they are. Intimidation is a very vague word.

This was very briefly touched upon. The language of the bill does not make clear that you can prove a contract, a consent, as showing that there was possibly no coercion. It has to be clear that these things, while not automatically sufficient to negate a finding of coercion, can be probative of lack of coercion.

Finally, again, the penalties. They are not, again, the least drastic means, first, because of the size of the penalties, and secondly, because again, they restrict future speech.

There are provisions that the individual can be divested of his interest in a business, can be prohibited from engaging in the business, forfeiture provisions—the same thing, again, looking in a forward way and stopping those people from speaking, rather than just punishing them for the past act of coercion. Thank you.