Chapter 3

Commissioner Statements

With the reservations expressed herein, I concur in principle with the conclusions drawn by the majority. The findings contained in our report reflect a balanced assessment of the evidence heard. Ideally, I would have preferred that our condemnation of materials directly affecting behavior be couched in more forceful language, and that our recommendations for

The

enhanced law enforcement, particularly with respect to violent and degrading materials, be likewise more pronounced. reluctance of some Commissioners to adopt more potent language in these areas was undoubtedly attributable to the scarcity of definitive research on negative effects. While the existing body of research, particularly when coupled with the totality of the other evidence heard, well supports our findings, more corroborative research may warrant firmer control measures. Hopefully these issues will be addressed by behavioral scientists in future years.

Undoubtedly the most divisive task which confronted the Commission has been an analysis of those materials contained in Category III. This group encompasses a wide spectrum of imagery depicting sexual activity without violence, submission, degradation or humiliation. More than any other class evaluated, each Commissioner's personal value assessment of the activity portrayed encumbered objective analysis. The lack of consensus among the American people as to the morality of certain acts was

quite evident among our cross-sectional composition.

From a purely social scientific perspective there is no cogent evidence that materials in this class have a predominately negative behavioral effect. There is, however, a scarcity of research material squarely within the definitional boundaries of this Category.

Much of the research touching material

representative categories.

of this group also includes publications in other The scarcity of significant research in this area adds a definite element of caution in assessing the behavioral effects of this class, particularly with respect to children and adolescents.

Despite the absence of clinical evidence linking Class III materials to anti-social behavior, several correlational connections are disturbing. First, it would appear that imagery comprising this Class may tend to encourage and promote the activity depicted. To the extent that the activity portrayed may be morally offensive, its literary propagation could be a social problem. At least one study has indicated that prolonged exposure to material in this category may cause a desensitized attitude toward the sexual abuse of women. This evokes considerable concern, especially with respect to the effect on individuals with predispositions for antisocial behavior.

Turning next to an assessment of the social effects of Class III materials as determined from all sources of evidence, it is useful to weigh the evidence relating to each category of

potential harm identified by the Commission.

Aside from

attitudinal desensitization, there appeared to be no evident connection between items in this Class and the contention that women enjoy being raped. Several witnesses alluded to the possibility that a behavioral nexus may exist, but no persuasive evidence was introduced. However, depictions in this class do tend to promote the notion that women are inherently promiscuous and enjoy sexual exploitation. This type of imagery conveys the impression that women are fundamentally immoral and hedonistic.

The depictions featured in Category III material appear to de-emphasize the significant natural bond between sex and affection in their portrayal of adultery, fornication and sodomy. Therefore, in the final analysis, Class III material appears to impact adversely on the family concept and its value to society.

On balance, it would appear that materials in Class III have mixed effects depending on their nature and purpose. Those items which tend to distort the moral sensitivity of women and undermine the values underlying the family unit are socially harmful.

Aside from the type of harm which lends itself to a clinical degree of proof, obscenity impacts on society in a number of ways which defy scientific standards of assessment. The visible availability of obscene materials and performances in a community derogates from the family atmosphere normally fostered by local governmental policy. As Chief Justice Earl

Warren noted in Jacobellis v. Ohio, 373 U.S. 184, 199, "(t)here is a right of the Nation and States to maintain a decent society." The right to preserve a wholesome community atmosphere conducive to family development in itself warrants the control of offensive and obscene materials. Chief Justice Warren E. Burger observed in Paris Adult Theater I v. Slayton, 413 U.S. 49, 58, that the desire to maintain "the quality of life and the total community environment" is an adequate legal basis for the regulation of obscene material. Justice Harlan in his dissenting opinion in Roth v. United States, 354 U.S. 476, 505, described this governmental obligation as a "responsibility for the protection of the local moral fabric." Inherent in the comments of Chief Justice Burger, as well as those of his predecessors, is the acknowledgment of the existence of a moral and cultural texture in our society, worthy of legal protection.

Toward that

end, I join Commissioner Park Elliott Dietz in his introductory

comments.

than

Turning to the issue of law enforcement as developed in the text, my concern focuses more on the manner of expression the underlying conclusion. Initially, the decision to adopt or enforce obscenity laws should reside, within constitutional limits, with the citizens of each community. Our recommendations are predicated on the assumption that a community seeking to implement these suggestions has made this threshold decision. From the evidence heard and correspondence received, it would appear that most communities desire some degree of obscenity

enforcement. However, if law enforcement officials in those communities adopt a policy of conscious oversight or neglect of obscenity cases, as has apparently happened in many jurisdictions, this may spawn a spectre of condonation. In time, an attitude of tolerance will evolve to the level of normal, and often fossilized, public policy. The necessity for reversing this course and employing our suggestions for citizen action deserves more prominence in our report.

The suggested prioritization of obscenity cases, which places the greatest emphasis on violent and degrading materials, seems appropriate. of greater concern is the possible

implication that enforcement with respect to Category III items should be de-emphasized. While prioritization of resources, like other obscenity law enforcement policy, is a matter within the prerogative of each individual jurisdiction, I do not support the suggestion that any items within the current definition of obscenity should not be prosecuted if deemed appropriate by that community. To the extent that prioritization of resources entails the commitment of personnel to long-term, complex investigations, a policy of concentration on violent and degrading materials is logical. On the other hand, the policy distinction between legally obscene materials of that type (Category I and II), and those in Category III is less persuasive when applied to cases developed by routine periodic surveys of materials on display in commercial areas. Under the latter circumstances, all materials within the legal definition of