If it is impossible for me to survey the contents of all of the books which I receive in the store, it will be far more impossible for any policing agency to track the thousands of bookstores aroundd the country. Moreover, the presence of federal tastemakers and federal enforcement would cast a pall over book publishing and selling.

I am a mother with four grown children and Carla Cohen has two. almost grown. We understand the impulse to shield children from violence or inappropriate sexual stimulation. We tried to influence the tastes of Our children through what we read to them or accompanying them to the library. We believe that private institutions are much more appropriate vehicles to influence

taste.

Moreover. such regulation as is necessary to restrict distribution

of materials considered obscene is better left to local governments. through zoning and land use restrictions. Carla Cohen was a city planner before she became a bookseller. She notes that a number of cities have been very successful in containing the selling of materials considered obscene through strict land use zoning or "adults only" districts. Baltimore is often cited.

My colleague Edward Morrow, Jr., President of the American Booksellers Assocation. testified on this bill on the Senate side. He emphasized that the ABA has no reservations regarding the sections of the proposed bill that deal with child pornography. but that the parts of the bill dealing with obscenity would "have major and undesireable consequences" for booksellers. "Booksellers would be forced to stop dealing in any material with sexual content -- novels, art, photography, health, and education books that community members might seize upon to attack as obscene."

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On behalf of the American Booksellers Assocation. we urge you to eliminate those parts of the bill dealing with obscenity. Booksellers should not serve as police agents. And the U.S. Government should not establish a Lord Chamberlin.

Mr. HUGHES. Thank you very much, Ms. Meade.

Ms. Steinman, in your testimony, you distinguish between some of the bills and RICO, making the valid point that RICO basically deals with a pattern or a practice, with a number of different criminal activities involving a number of people.

What do you think of focusing section two of the bill on just that pattern or practice?

Would the type of pattern or practice that is in fact essential to make out a RICO predicate offense address your concerns?

Ms. STEINMAN. Basically no, just in that I think that the jurisprudence under RICO has shown that even RICO has been distorted. The way they are defining the offenses, it really often is one offense that has been broken down, and looks like two instead of

one.

The number two is still very low. I think that——

Mr. HUGHES. Well, your criticism really is directed at the manner in which RICO has been expanded upon.

What I am asking you is, let's assume that the extent to which RICO has been utilized by U.S. Attorneys is upheld as constitutional.

Would it address your concerns if we were to in fact craft Title II to direct at that type of a pattern or practice? Or wouldn't that address your concern? I am trying to find out where you come down on that subject.

Ms. STEINMAN. Certainly, I feel that obscenity legislation of this nature should be directed toward, you know, the more organized crime, the larger enterprise, rather than the sale of a single book. I have trouble with the forfeiture-type provisions, no matter what the instance. If the Supreme Court were to uphold forfeiture provisions in the First Amendment area, and to declare them constitutional, and not to be prior restraints-which I would hope would not happen-I would still have objections to them on a policy viewpoint, just in that I do not believe that it is proper to stop someone from speaking in the future because of a past violation.

I think it is certainly fine to go in there and take the very books that are obscene, but I do not think it is proper to take away their book racks, and to prevent them from selling books in the future.

Mr. HUGHES. Would it make any difference if we utilized the elements that are required for a Continuing Criminal Enterprise, which requires three transactions, five employees, or isn't the number of transactions the determining factor?

Ms. STEINMAN. I think that would certainly help. I mean, you know, as you raise the number of transactions, the number of people that have to be involved, if you put in enterprise requirements, certainly, yes, the chill is decreased. So moving the bill in that direction would unquestionably help.

You know, I think I have identified various areas of the bill that create problems, but that would certainly help in one regard.

Mr. HUGHES. Mr. Schmidt, or Ms. Meade, or both, are you aware of any successful obscenity prosecutions since the Miller case, Miller v. California?

Mr. SCHMIDT. Mr. Chairman, I would have to say that I am not. One comes to mind which is not precisely a prosecution, and that

is, on the advice of the city attorney in Scottsdale, Arizona, Playboy magazine was removed from the library because the advisory opinion of that city attorney was to the effect that Playboy violated the Arizona obscenity statute.

Now notwithstanding the fact that some other public libraries in the same State had received contrary advice or any opinions from their city attorneys, in the instance of the Scottsdale Public Library, Playboy was removed.

That is not precisely a prosecution, however.

Mr. HUGHES. Ms. Meade, are you aware of any?

Ms. MEADE. Certainly nothing that is recent, though I might point out that we do carry and sell Henry Miller, James Joyce, both of whom had their obscenity prosecutions in their day.

Mr. HUGHES. Can you imagine a book that you special order, found to be lacking in literary value from an objective analysis? Ms. MEADE. That would depend upon how you would define literary value. We do a large business in the mental health area, and included in the mental health area is sex therapy.

We do carry sex therapy books. Now to some people, they might find the material in those books offensive. It is clinical.

Mr. HUGHES. I cannot imagine the Supreme Court viewing that type of a publication as violative of the Miller criteria. Can you? Ms. MEADE. No.

Mr. HUGHES. Well, I have no other questions. You have been very patient and very helpful to us. I think we understand your concerns, and we are going to see if we cannot, in some way, address those concerns.

It is our hope-the Ranking Republican, Mr. McCollom, and I, have talked before about attempting to perhaps schedule markup some time in the future. We are going to be recessed for a couple of weeks, but we certainly do intend to see if we can find some consensus on this committee.

There is a wide range of views as to what is constitutional. Even when you get the constitutional scholars today, as you heard, you do not always receive any degree of consistency of opinion, and that is what makes it so interesting.

But we intend to try to move ahead with some markup in September, and you have been very helpful and we appreciate that. That concludes the hearing for today and the subcommittee stands in recess.

[Whereupon, at 3:05 p.m., the subcommittee adjourned, to reconvene subject to the call of the Chair.]

APPENDIX

MATERIAL SUBMITTED FOR THE HEARINGS

COVENANT HOUSE

460 WEST 41 STREET, NEW YORK, NY 10036

(212) 613-0300

FR BRUCE RITTER

PRESIDENT

SUPPORTING MATERIAL

FROM FR. BRUCE RITTER

TO THE MEMBERS OF THE SUBCOMMITTEE ON CRIME

"PORNOGRAPHY AND PRIVACY"

A DISCUSSION OF SOCIAL SCIENCE EVIDENCE

"THE USE OF PERFORMERS IN COMMERCIAL PORNOGRAPHY"

APRIL 28, 1988