LL. 3882_faction by Baction Analysis, page 7

Faction 203 -- CABLE TELEVISION OBSCENITY

Subsection (a) contains eight findings of fact regarding obscenity and cable television.

Subsection (b) creates a new offense in chapter 71 of title 18, U.S.C., relating to obscenity, to prohibit distributing obscene material by cable or subscription television (18 U.S.C. 1464A).

Currently obscene television broadcasting is prohibited under 18 U.S.C. 1464 proscribing obscene "radio communication". Cable television is transmitted by wire, not radio waves, and thus is generally not covered by the existing law. Violation carries a maximum of two years in prison and felony level fines. The term "distribute" means "to send, transmit, retransmit, telecast, broadcast, or cablecast, including by wire, microwave, or satellite, or to produce or provide material for such distribution." The section also provides that there is no Federal preemption of State and local regulation of obscene or indecent language by means of cable television.

Section 204 -- COMMUNICATIONS ACT AMENDMENT

This section is the "Dial-A-Porn" amendment. The 1983 effort to regulate or ban "dial-a-porn" concentrated on prohibiting access of minors to such material (P.L. 98-214, section 8; 47 U.S.C. 223(b)). The FCC has attempted (over the past four years and in the face of three court challenges) to develop regulations for telephone companies that would restrict minors from accessing dial-a-porn by:

(1) setting certain hours in which the dial-a-porn messages could not be made available to the public (which was rejected by the U.S. Court of Appeals for the Second Circuit);

(2) limiting access to those who have a credit card (accepted by the court);

(3) adopting a system of customer access codes (accepted by the court);

(4) allowing the customer to block the making of dial-a-porn calls from his or her telephones (remanded by the court for further revision and consideration of the potential costs and their just allocation)

(5) requiring the "scrambling" of dial-a-porn message and providing adult dial-a-porn customers with descrambling devices (under court review).

This section rewrites the 1983 amendment to the Communications Act of 1934 (47 U.S.C. 223(b)) by:

porn;

(1) distinguishing between obscene and non-obscene dial-a

(2) retaining the proscription of obscene communications in

8.R. 3889, Section by Section Analysis, page

(3) proscribing obscene communications "for commercial

purposes" as a felony; and

(4) proscribing non-obscene but "indecent" communications for commercial purposes to any person under 18 as a misdemeanor. The provision retains the current law defense to a prosecution involving an indecent communication that the defendant restricted access to the indecent communication to persons 18 years of age or older in accordance with FCC regulations.

POSSESSION AND SALE OF OBSCENE MATTERS IN FEDERAL
JURISDICTION OR ON FEDERAL PROPERTY

This section creates a new offense in chapter 71 of title 18, relating to obscenity, of possession and sale of obscene matter on Federal property, 18 U.S.C. 1460.

Subsection (a) of the new offense provides that whoever, in the special maritime and territorial jurisdiction of the United States (defined in 18 U.S.C. 7 to include vessels on the high seas, aircraft and spacecraft in flight, and certain lands of the United States), or on any land or building owned, leased or used by or under the control of the Government of the United States, or in the Indian country (defined in 18 U.S.C. 1151), knowingly sells, or possesses with intent to sell, an obscene visual depiction or child pornograpy shall be imprisoned for not more than 2 years or subject to felony-level fines.

Subsection (b) prohibits, in the same jurisdictional areas, the simple possession of obscene visual depictions or child pornography shall be subject to misdemeanor penalties. Subsection (c) exempts from this offense simple possession "in any place where such person lives or resides."

This section amends chapter 119 of title 18, United States Code, relating to wire and electronic communications interception and interception of oral communications (the Federal wiretap law) to permit wiretapping and bugging to investigate any felony violation of the obscenity chapter (chapter 71 of title 18, U.S.C.).

க

DELANCEY STREET FOUNDATION INC
2563 Divisadero Street San Francisco

April 2, 1987

California 94115 (415) 563 5326
MIMI H. SILBERT, Ph.D. PRESIDENT/CEO

Dear Members of Congress:

As an invited participant in 1986 to the Surgeon General's Workshop
on Pornography and Public Health, whose focus area in that group was
The Effects on Juveniles of Being Used for Prostitution and Pornography,
I have studied the subject intensively, have written papers and profes-
sional journals, and have recently authored a chapter of a book.
Additionally, all of my work as President of the Delancey Street
Foundation for fifteen years, studying and treating prostitutes and
women and children who have been used to make pornography and otherwise
exploited, have put .ne in close touch with this problem. As a result
of this experience, I urge all of you to pass the Pornography Protection
Act #HR1213 introduced by Congressman Greene on February 24 and #S703
introduced by Senator Specter on March 10. I cannot stress how
vitally important it is to the fabric of our society as well as to the
individual rights of the victims to work to eliminate this kind of abuse.

MORALITY IN MEDIA, INC. 475 RIVERSIDE DRIVE, NEW YORK, NY 10115 (212) 870-3222

FOUNDER

REV MORTON A HILL. SJ (July 13, 1917-November 4, 1985)

RABBI DR JULIUS G NEUMANN
Chairman of the Board

REV PAUL J. MURPHY, SJ

President

EVELYN DUKOVIC Executive Vice-President

RUTH KAPP

REV ROBERT E WILTENBURG

Vice-Presidents

GEORGE B FERGUSON
Comptroller

PAUL J. MCGEADY ESQ

General Counsel

DIRECTORS

GEORGE A DOYLE, JR.

EVELYN DUKOVIC

REV DR MILTIADES B EFTHIMIOU

SHEILA FLANIGAN

DAVIDO HOPKINS

RICHARD HUGHES

PAUL J MCGEADY

THE REV GARETH MILLER

REV PAULJ MURPHY, S.J. RABBI DR JULIUSG NEUMANN

JOHN J REILLY
VICTOR SAYEGH

PAUL J TROG
ELMER VON FELDT
JOHN W WALBER ESQ
JOHN J WALSH ESQ
KATHLEEN ZAWACKI

- NATIONAL PLANNING BOARD

JOSEPH COORS
President

Adolph Coors Company - ARNOLD R DEUTSCH Director

Deutsch Shea & Evans JOHN H DOUGLAS Ret Chairman & President United Electronics Institute FRANCIS J DUNLEAVY Ret Vice-Chairman International Telephone and Telegraph Corporation

RT REV RICHARDS EMRICH
Ret Episcopal Bishop of Michigan
THOMAS W GLEASON
President
International Longshoremen's Ass'n.
N. BUNKER HUNT
Chairman, Hunt Energy Corporation
JOHN M JOYCE
Chairman of the Board
Joyce Beverages, Inc.
WILLIAMS KANAGA
Chairman, Advisory Board
Arthur Young International
JOHN R. KENNEDY, JR.
President
Federal Paper Board Co., Inc.
WELLINGTON T MARA
President

New York Football Giants, Inc.
THOMAS A MURPHY
Ret Chairman

General Motors Corporation
HON WILLIAM E SIMON
Chairman, Wesray Corporation
EDWARD L. STEINIGER
Ret Chairman, Sinclair Oil Corp.
ARTHUR R TAYLOR
Chairman
Arthur Taylor & Co., Inc.
EMMET E TRACY
Chairman & President
Aima Products, Inc.

Obscenity is not encompassed within the First
Amendment phrases "freedom of speech" or "freedom of the
press" [Roth v. United States, 354 U.S. 476 (1957)].
Since there is no protection for obscenity under our
federal constitution, Congress may adopt laws to proscribe
and punish those who distribute obscene materials. No
inroads are made by such legislation on protected speech,
and it is not necessary to look for a "clear and present
danger," nor is it required to find a "compelling" or even
a "substantial" federal interest to justify such laws.
Unless the one challenging such laws can show that they
are "irrational" under the due process clause of the Fifth
Amendment, they will be upheld. Of course, passage of
such laws is an exercise of the police power, and under
our concept of "Ordered Liberty," laws find their
philosophical underpinnings in protection of the health,
safety, welfare or morals of the people. Laws with such
underpinnings, those which are not irrational, may be
passed by a simple majority of the legislature. As noted
by the United States Supreme Court in Paris Adult Theatre
I v. Slaton, 413 U.S. 49 (1973):

"Although we have often pointedly recognized the
high importance of the state interest in
regulating the exposure of obscene materials to
juveniles and unconsenting adults..., this Court

has never declared these to be the only legitimate state
interests permitting regulation of obscene material.... In
particular, we hold that there are legitimate state interests
at stake in stemming the tide of commercialized obscenity, even
assuming it is feasible to enforce effective safeguards against
exposure to juveniles and to passerby.... These include the
interest of the public in the quality of life and total
community environment, the tone of commerce in the great city
centers, and possibly, the public safety itself.... Although
there is no conclusive proof of a connection between antisocial
behavior and obscene material, the legislature could quite
reasonably determine that such a connection does or might
exist. In deciding Roth, this Court implicitly accepted that a
legislature could legitimately act on such a conclusion to
protect "the social interest in order and morality"... The
fact that a congressional directive reflects unprovable
assumptions about what is good for the people, including
imponderable aesthetic assumptions, is not a sufficient reason
to find that statute unconstitutional.... The sum of
experience, including that of the past two decades, affords an
ample basis for legislatures to conclude that a sensitive, key
relationship of human existence, central to family life,
community welfare, and the development of human personality,
can be debased and distorted by crass commercial exploitation
of sex. Nothing in the Constitution prohibits a state from
reaching such a conclusion and acting on it legislatively...."

On the same day that Paris Adult Theatre was decided, the Supreme Court also decided Kaplan v. California, 413 U.S. 115 (1973), where the Court stated that a legislative body "need not wait until behavioral experts or educators can provide empirical data before enacting controls on obscene matter not protected by the Constitution." In Paris Adult Theatre, Chief Justice Berger summed it all up when he said "There is a right of the nation and of the states to maintain a decent society."

There can be little question that the reason for the explosive growth of obscene matter is lack of past enforcement of obscenity laws already on the books. At the same time, as noted by the Attorney General's Commissison on Pornography, obscene matter is increasingly being distributed throughout the country by means of large and sophisticated distribution networks, and it is precisely this kind of massive and complex interstate and international operation at which H.R. 3889 is primarily aimed. Morality in Media generally supports this legislation, but hereby suggests amendments to correct the following defects or omissions:

1. Obscene computer porn.

H.R. 3889 would amend Sections 2251 and 2252 to prohibit the use of computers to advertise, distribute or receive child pornography and related information. Arguably, transportation of adult obscene material by computer is already covered under the prohibition in 18 U.S.C. 1462 against the interstate transportation of obscenity by "common carrier,"