considerations.

It is

If the activity is other than purely local in nature it is subject to federal commerce power regulation. within this constitutional grant that Congress may exercise discretion in setting the limits of jurisdiction. Since

Congress has already Constitutionally chosen to regulate the activity through 18 U.S.C. SS1462 and S1465, it may, if it chooses, expand the regulatory jurisdiction to include activities which "affect" commerce as well as those "in"

commerce.

This Commission finds that virtually all distribution of obscene material substantially affects interstate commerce.

Department of Justice Guidelines now in effect for the United States Attorneys preclude federal prosecution of obscenity cases that properly belong in state courts.112

112 The guidelines provide, "The Federal role in prosecuting obscenity cases is to focus upon the major producers and interstate distributors of pornography while leaving to local jurisdiction the responsibility of dealing with local exhibitions and sales. This role has not met with complete acceptance and understanding by citizens of communities confronted with offensive matters who find their local prosecutor ineffectual in this area. Even so, local prosecutors have been regarded having the primary

obligation to deal with such material on a local level.

*

Local prosecutors, however willing to prosecute, frequently experience difficulty because of several factors, notably a lack of expertise in the field, lack of support by the community and/or its officials, and lack of necessary funds. In these circumstances the United States may provide assistance through prosecutive efforts not falling precisely within the above guidelines. Conversely, local authorities dealing with obscene material being distributed within their area may develop evidence of interstate distribution useful to a Federal prosecution. Communications between Federal and

Existing guidelines require the United States Attorneys to give higher priority to cases involving large scale distributors who realize substantial income from multi-state operations and cases in which there is evidence of involvement by known organized crime figures.113 These are the types of cases that require the operational resources of the Department of Justice and federal law enforcement agencies and are accordingly beyond the scope of local law enforcement capabilities.114 The new section would be a

substantial aid to federal prosecutors' efforts, but properly applied it would not result in any more federal encroachment on state prosecutors' prerogatives than present federal law permits.

RECOMMENDATION 3:

CONGRESS SHOULD ENACT LEGISLATION MAKING IT AN UNFAIR BUSINESS PRACTICE AND AN UNFAIR LABOR PRACTICE FOR ANY EMPLOYER TO HIRE INDIVIDUALS TO PARTICIPATE IN COMMERCIAL

SEXUAL PERFORMANCES.

DISCUSSION

local prosecutors, and coordination of efforts in such instances, can be highly productive in both Federal and local efforts. United States Department of Justice, United States Attorneys' Manual, Ch. 75, p. 9a (June 18, 1981).

113

114

Chicago Hearing, Vol. II, James S. Reynolds, p. 263.

New York Hearing, Vol. II; William Johnson, p. 82.

This Commission does not advocate nor does it condone the use of individuals in commercial sexual practices. The Commission strongly supports enforcement of existing criminal laws against those who violate them by using individuals in commercial sexual performances or in the production of obscene materials. The Commission does, however, recommend imposing fair labor standards on those businesses which engage individuals to perform sexual acts for commercial purposes. This recommendation is made only out of an abiding concern for those persons used in these sexual performances.

The production of obscene material, like many forms of criminal activity, is an enterprise patterned after other legitimate business structures.115 Producers of obscene material make capital investments, hire employees, and earn sizeable profits. Unlike other businesses, the regulations governing the production of obscenity are largely self-imposed or non-existent. This industry has been called the "last vestige of true laissez-faire capitalism" in the United States.116

Unlike more conventional businesses and

115

Chicago Hearing, Vol. II, Duncan McDonald, p. 59.

116 Id. at 61; The value of society's goods always derives from the values of its people. A democratic society that is unwilling to bar Hustler on public newsstands or ban billboards from beautiful views cannot justly blame capitalism for these offenses. It is up to the political, judicial, and religious institutions of the society, not other businesses, to eliminate such opportunities for ugly profit. Capitalists perform a vital role in determining what goods and services are initially offered to the public. But the people and their government determine the limits of what can be marketed. Markets provide the ultimate democracy;

industries, profits from obscene materials go largely untaxed and their employees often suffer varying degrees of mental and physical injury.117 Seldom, if ever, do employees maintain insurance, pay benefits or provide pension plans to performers or others who work for them.

Congress should enact legislation, as necessary, that would specifically subject the production of obscene materials to the same types of laws and regulations as other businesses. This would not necessarily involve criminal statutes or penalties, but rather it could take the form of civil regulatory statutes. These are not recommended as exclusive remedies, but as a form of regulation that parallels other existing forms of criminal and civil relief. The basis for these statutes is the government's broad powers to regulate commerce.

Legislation also should be enacted that would make it an unfair business practice and an unfair labor practice to hire individuals to participate in certain sexual performances for purposes of producing sexually explicit materials. Included in the prohibited activities should be sexual performances sado-masochism, or anything which would meet the description of unlawful sexually explicit depictions developed in such

involving children violence

democracy, though, defines the marketplace. G. Gilder, The Spirit of Enterprise, 91(1984).

117 See, The discussion of performers in the pornography industry for further information.

federal law.

Congress should prohibit the sale and distribution of

any product made as a result of those unfair practices and provide a civil cause of action for any party injured as a

result of these practices.118 The law should also provide

protection for individuals who are used as actors or models in obscene material. Such legislation should make any contracts for prohibited performances void, and provide a formula for the determination of damages and payment of attorneys fees. Existing laws and regulations prohibit an employer from imposing dangerous, unhealthy, or unfair conditions of employment on an employee. Employees have a remedy if they are harmed in the course of their employment. None of these requirements have been applied to

the

pornography industry where these risks are truly pervasive. It is essential that the commercial laws and regulations be applied in a fair and even-handed manner. Business enterprises should be prevented from operating in a manner which jeopardizes the welfare of its employees.

RECOMMENDATION 4:

CONGRESS SHOULD AMEND THE MANN ACT TO MAKE ITS PROVISIONS GENDER NEUTRAL.

DISCUSSION

118 This could be in the form of a civil rights type approach.