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PART TWO: CHAPTER 4
More than in 1957, when the law of obscenity became inextricably a part of constitutional law, more than in 1970, when the President's Commission on Obscenity and Pornography issued its report, and indeed more than just a year ago in 1985, we live in a society unquestionably pervaded by sexual explicitness. In virtually every medium, from books to magazines to newspapers to music to radio to network television to cable television, matters relating to sex are discussed, described, and depicted with a frankness and an explicitness of detail that has accelerated dramatically within a comparatively short period of time. To attempt to isolate the causes of this phenomenon is inevitably to embark on a futile enterprise, for the sexual openness of contemporary America is unquestionably a product of that immense interplay of factors that makes contemporary America what it is in numerous aspects apart from sexual explicitness.
We have spent much of our time investigating the nature of the industry that produces, distributes, and sells sexually explicit materials, for we do not believe we could responsibly have drawn conclusions relating to that industry unless we became familiar with it. The results of this investigation are set out comprehensively and in detail in a later Part of this Report, but we feel nevertheless that a general overview of the market and the industry is necessary here.
The pervasiveness of sexual explicitness in the society in which we live underscores the importance of distinguishing what might plausibly be characterized as "pornographic" from the entire range of descriptions, depictions, and discussions that are more sexually explicit than would have been the case in earlier times, and that, for that reason, engender some or substantial objection from various people within the society. We find it useful in this Report to describe some particularly salient aspects of the pornography industry, but any such discussion must be preceded by a brief survey of some other forms of sexually explicit material that are usefully contrasted with the more unquestionably pornographic.
With few exceptions, what might be called the "mainstream" or "legitimate" or "Hollywood" motion picture industry does not produce the kinds of films that would commonly be made available in "adults only" outlets. The films shown in such establishments, the ones containing little if any plot, unalloyed explicitness, and little other than an intent to arouse, are not the products of the motion picture industry with which most people are familiar. Nevertheless, sexuality, in varying degrees of explicitness or, to many, offensiveness, is a significant part of many mainstream motion pictures. One result of this phenomenon has been the rating system of the MPAA. Because those ratings are so frequently used as shorthand, and frequently erroneous shorthand, for certain forms of content, a brief description of the rating system may be in order.
The rating system, established in 1968, has no legal force, but is designed to provide information for distributors, exhibitors, and viewers of motion pictures. At the present time there are five different categories within the rating system. Motion pictures rated "G" are considered suitable for everyone, and people of all ages are admitted when such films are shown. The "PG" rating, which stands for "parental guidance suggested," still allows all to be admitted, but warns parents that some material may not be suitable for children. Films receive a PG rating if there is more than minimal violence, if there is brief nudity, or if there are non-explicit scenes involving sex. A "PG-13" rating is used where more parental caution is suggested, especially with respect to children under the age of thirteen.
Most germane to this Report are the ratings of "R" and "X." An "R" rating indicates a restricted film, and those under the age of seventeen are admitted only if accompanied by a parent or guardian. Motion pictures with this rating may be somewhat, substantially, or exclusively devoted to themes of sex or violence. They may contain harsh language, sexual activity, and nudity. Films with this rating, however, do not contain explicit sexual activity. If a film contains explicit sexual activity, or if, in some cases, it contains particularly extreme quantities and varieties of violence, it is rated "X", and no one under the age of seventeen may be admitted.
Only in rare cases will anything resembling standard pornographic fare be submitted to the MPAA for a rating. More often such material will have a self-rated "X" designation, or will have no rating, or will have some unofficial promotional rating such as "XXX." It is important to recognize, however, that although no motion picture not submitted to the MPAA can have any rating other than "X," and that although standard pornographic items would unquestionably receive an "X" rating if submitted, not all, and indeed, not many officially "X" rated motion pictures would commonly be considered to be pornographic. Although the nature of what kind of content will get what rating will change with the times, it remains the case that the "X" rating, especially when applied to the small number of mainstream films that officially receive that rating after submission to the MPAA, is not in every case synonymous with what most people would consider pornography.
Although the sexual content of large numbers of magazines has increased in recent years, particular attention is often focused on so-called "men's" magazines, commonly referred to within the trade as "male sophisticate" magazines. In recent years variations aimed at a female audience have also appeared, but the genre remains largely directed to men.
Magazines of this variety tend to be produced and distributed in a manner not dissimilar to the production and distribution methods for most mass-circulation magazines. It is almost misleading to consider them as one category, however, for such magazines vary enormously in content and explicitness. A very few magazines of this variety combine their sexual content with a substantial amount of non-sexually oriented, and frequently quite serious, textual or photographic matter. Some magazines have for their photographs little more than suggestive nudity, while a number of others feature significant amounts of simulated or actual sexual activity. From the perspective we adopt and explain in Chapter 5, all of the magazines in this category contain at least some material that we would consider "degrading." Some contain a large amount of such degrading material, and some also contain sexually violent material.
With respect to the category of the legally obscene, some of the magazines in this category could not plausibly be considered legally obscene, while others have occasionally been determined to be legally obscene by particular courts. As a purely empirical matter, such determinations of obscenity for even the most explicit and offensive of these magazines seem aberrational, and by and large most of these magazines circulate widely throughout the country without significant legal attack.
Television has become technologically more diverse than in earlier years, and it is no longer possible even to think of television as one medium. Broadcast television, whether network or local, has a frequent explicit or implicit sexual orientation but, with only the rarest exceptions, sexual activity of any explicitness at all, or even frontal nudity, has been largely absent from broadcast television. In part this is explained by rules and regulatory practices of the Federal Communications Commission, and in part this is explained by the practices of stations, networks, and sponsors. But whatever the cause, the amount of nudity, sexual innuendo, and sex itself on broadcast television has traditionally been a far cry from even moderate levels of sexual explicitness, although it is plainly the case that the degree of sexual explicitness in depiction, in theme, and in language on broadcast television has been increasing substantially in recent years.
Cable television, however, by which we include satellite as well, is quite different. Under current law, cable is not subject to the same range of Federal Communications Commission content regulation, and as a result is often substantially more sexually explicit than anything that would be available on broadcast television. This increased explicitness may take the form of talk shows or call-in shows specializing in sexual advice, music videos featuring strong sexual and violent themes, cable channels that specialize in sexual fare, and more general purpose cable channels may offer mainstream motion pictures that would not in uncut form be shown on broadcast television. Although some motion pictures available on cable might be deemed legally obscene in some areas, and although much of this material is highly explicit and offensive to many, by and large the sexually explicit material available on cable would not be of the type likely to be determined to be legally obscene. More often, what is available, and it does vary from area to area and channel to channel, is a degree of sexuality somewhat closer to what is available in a mainstream motion picture theater, but would not be available on broadcast television.
In some sense the video tape cassette ought to be considered a form of television, since the television is the device by which such cassettes are viewed. But the cassettes themselves are so variable in content that generalization is difficult. Much of what people rent or, less frequently, buy to watch at home is standard motion picture theater fare, and therefore can encompass anything from the kinds of films that are rated "G" to the kinds of films that are rated "R," and occasionally the kinds of films that are officially rated "X" by the MPAA. In many video outlets, however, a range of even more sexually explicit material is available, not dissimilar to what might be shown in an "adults only" theater. Although much of this material would commonly be considered pornographic, and although much of it might in some areas be found to be legally obscene, it has in the past tended to be more on the conventional end of such material, obviously reflecting the desires of patrons of an establishment offering a full range of video material. More recently, however, some less conventional material has become available in some full range of video outlets. Finally, there is the material available either in "adults only" establishments offering many types of materials, or in "adults only" outlets offering video tapes. This material, although viewed at home, is for all practical purposes the same as that which would be shown in "adults only" theaters or peep shows, and the same range of sexual themes and practices is commonly available.
In terms of methods of production, methods of distribution, and methods of ultimate sale to consumers, the pornography industry itself must be distinguished from the outlets for some degree of sexual explicitness discussed in the previous section. The true pornography industry is quite simply different from and separate from the industry that publishes "men's" magazines, the industry that offers some degree of sexually oriented material on broadcast and cable television, and the mainstream motion picture industry. In some rare instances there may be some linkages between the two, but in general little more than confusion is served by concentrating on these linkages rather than on the major differences.
There can be little doubt that there has within the last ten to twenty years been a dramatic increase in the size of the industry producing the kinds of sexually explicit materials that would generally be conceded to be pornographic. One consequence of this is that the industry is not as clandestine as it was in earlier years. Nevertheless, when this industry is compared to the kinds of industries that produce more mainstream materials, it is still the case that the production of pornographic materials is a practice and a business that remains substantially "underground."
Approximately eighty percent of the American production of this type of motion picture and video tape takes place in and around Los Angeles, California. In part this is a consequence of the location there of technical personnel, such as camera operators, who either are, have been, or wish to be employed in the mainstream motion picture industry. Indeed, this description applies as well to many of the performers in these films, although, unlike technical personnel, the likelihood of a performer who is involved in pornographic materials simultaneously or eventually working in the mainstream motion picture industry is minuscule.
Production of these materials tends to be done on a rather limited budget, usually in temporary locations such as motel rooms or rented houses, and usually in quite a short period of time. Often not only the premises, but the photographic equipment as well, is rented for only the limited time necessary to make the film. It is not uncommon for producer, director, and scriptwriter to be the same person. In many cases the performers are secured through one of a number of agents who specialize in securing performers for highly sexually explicit films. Although there is virtually no overlap between this industry and the mainstream film industry, the method of securing performers for films is largely similar, with agents providing producers with books describing various performers, and with producers often interviewing a number of possible performers before selecting the ones to be used.
As this Report is being written, the technological nature of the industry is in the midst of transition from photographic motion pictures to video tape. The proliferation of the home video tape recorder is in many respects transforming the industry, and in addition the process of producing a video tape tends to be more efficient and less expensive than the process of producing a photographic motion picture. With respect to aspects of production that are not technical, however, this technological development has had little effect on the production side of the industry.
The production of the standard variety of pornographic magazine, the kind likely to be sold in an "adults only" establishment for a rather high price, is in many respects similar to the production of pornographic motion pictures and video tapes. The process again operates in a partially clandestine manner, although it is much more likely here that the production and distribution processes will be combined. When this is the case taking the photographs, assembling them with some amount of textual material, and physically manufacturing the magazine will all take place at the same location.
With respect to the business of producing pornographic paperback books containing nothing but text, the writing, production, and distribution processes are again likely to be combined. Although independent authors are occasionally used, more common is the use of a full-time staff of authors, employed by the producer to write this kind of book at a rapid rate.
The process of distribution of films is rapidly in the process of becoming history. The photographic motion picture film typically shown in "adults only" theaters is rapidly decreasing in popularity, along with the theaters themselves, as the video tape cassette becomes the dominant mode of presentation of non-still material. Many of these video tapes are sold or rented for home consumption, and many are shown in "peep show" establishments. The effect of this is that the "adults only" theater, in any event an expensive operation, and one that is more visible than many patrons would like, is becoming an increasing rarity. Similar trends are apparent with respect to mainstream motion pictures and the theaters in which they are shown as well, although the effect of video tape on the pornographic film industry is much more dramatic, probably owing in large part to the fact that a night out at the movies remains substantially more socially acceptable in contemporary America than a night out at the peep show.
The films that are shown in "adults only" theaters, or that are shown by use of traditional projection equipment in peep shows, tend to be distributed nationally by use of complex and sophisticated distribution networks concentrating exclusively on highly sexually explicit material. There are exceptions to this generalization and one reason for the attention that focused in the early 1970s on films such as "Deep Throat," "The Devil in Miss Jones," and "Behind the Green Door" was that the standard methods of distribution and exhibition were changed so that films such as these were shown in theaters usually showing more mainstream films. But apart from exceptions such as these, most of the chain of distribution involves producers who deal only in this kind of material, distributors and wholesalers whose entire business is devoted to highly sexually explicit materials, and theaters or peep shows catering exclusively to adults desiring access to very sexually explicit material.
With respect to video tapes, most of the distribution is on a national scale, and most of that national distribution is controlled by a relatively limited number of enterprises. These distributors duplicate in large quantities the tapes they have purchased from producers, and then sell them to wholesalers, frequently with some promotional materials, who in turn sell them to retailers specializing in this type of material, or to more generally oriented video retailers who will include some of this material along with their more mainstream offerings. Based on the evidence provided to us, it appears as if perhaps as many as half of all of the general video retailers in the country include within their offerings at least some material that, by itself, would commonly be conceded to be pornographic.
Magazines are also distributed nationally, and again are likely first to be sold to wholesalers who will then sell to retailers. This process, however, likely culminating in a sale at an "adults only" outlet, does not account for as high a proportion of the total sales as it does for films or video tapes. More so than for films or tapes, many of the magazines are sold by mail, usually as a result of advertisements placed in similar magazines, in pornographic books containing text, and even in more mainstream but sexually oriented publications. There is some indication that the video tape has hurt the pornographic magazine industry as well as the pornographic motion picture industry. The retail prices for such magazines, within the recent past commonly in the range of from ten to twenty-five dollars per magazine, are in some geographical areas likely to be substantially discounted, and adult establishments appear to be offering an increasing percentage of video tapes and a decreasing percentage of books and magazines.
Apart from mail order, and apart from the rental of pornographic video tapes in general use video retail outlets, most pornographic material reaches the consumer through retail establishments specializing in this material. These outlets, which we refer to as "adults only" outlets or establishments, usually limit entry to those eighteen years of age or older, but the strictness of the enforcement of the limitation to adults varies considerably from outlet to outlet. At times these retail outlets will take the form of theaters in which only material of this variety is shown, and at times they will be "adults only" outlets specializing in books and magazine. Increasingly, however, the peep show, often combined with an outlet for the sale of pornographic books and magazines, is a major form of meeting consumer demand.
The typical peep show is located on the premises of an "adults only" establishment selling large numbers of pornographic magazines, along with some other items, such as pornographic text-only books, sexual paraphernalia, sexually oriented newspapers, and video tapes. The peep show is often separated by a doorway or screen from the rest of the establishment, and consists of a number of booths in which a film, or, more likely now, a video tape, can be viewed. The patron inserts tokens into a slot for a certain amount of viewing time, and the patron is usually alone or with one other person within the particular booth. The peep show serves the purpose of allowing patrons to masturbate or to engage in sexual activity with others in some degree of privacy, at least compared to an adult theater, while watching the pornographic material. In a later section of our report describing these establishments we note in detail the generally unsanitary conditions in such establishments. The booths seem rarely to be cleaned, and the evidence of frequent sexual activity is apparent. Peep shows are a particularly common location for male homosexual activity within and between the booths, and the material available for viewing in some of the booths is frequently oriented towards the male homosexual.
There are, of course, establishments offering adult material that do not contain peep shows. Although video tapes and various items of sexual paraphernalia are likely to be sold, the bulk of the stock in these establishments consists of pornographic magazines, frequently arranged by sexual preference. There can be little doubt that the range of sexual preferences catered to by magazines is wider than that of any other form of pornography. As the listing of titles later in this report makes clear, virtually any conceivable, and quite a few inconceivable, sexual preferences are featured in the various specialty magazines, and materials featuring sadomasochism, bestiality, urination and defecation in a sexual context, and substantially more unusual practices even than those are a significant portion of what is available.
We have spent a considerable amount of our time attempting to determine whether there is a connection between the pornography industry and what is commonly taken to be "organized crime." After hearing from a large number of witnesses, mostly law enforcement personnel, after reading a number of reports prepared by various law enforcement agencies, and after consulting sources such as trial transcripts, published descriptions, and the like, we believe that such a connection does exist.
We recognize that the statement that there is a connection between the pornography industry and organized crime is contrary to the conclusion reached by the President's Commission on Obscenity and Pornography in 1970. That Commission concluded that:
Although many persons have alleged that organized crime works hand-in-glove with the distributors of adult materials, there is at present no concrete evidence to support these statements. The hypothesis that organized criminal elements either control or are "moving in" on the distribution of sexually oriented materials will doubtless continue to be speculated upon. The panel finds that there is insufficient evidence at present to warrant any conclusion in this regard.
Caution about jumping too easily to conclusions about organized crime involvement in the pornography industry was further induced by the evidence offered to us by Director William H. Webster of the Federal Bureau of Investigation. Director Webster surveyed the FBI field offices throughout the country, and reported to us that "about three quarters of those [fifty-nine] offices indicated that they have no verifiable information that organized crime was involved either directly or through extortion in the manufacture of pornography. Several offices, did, however, report some involvement by members and associates of organized crime."[43] We reach our conclusions in the face of a negative conclusion by the 1970 Commission, evidence by the FBI, not so much because we disagree, but because we feel that more careful analysis will reveal that the discrepancies are less than they may at first appear.
One leading cause of conflicting views about organized crime involvement in pornography is that there are conflicting views about what organized crime is. To many people organized crime consists of that organization or network of related organizations commonly referred to by law enforcement personnel and others as La Cosa Nostra. This organization, which we describe in much more detail later in our Report specifically addressing on organized crime, is a highly structured and elaborately subdivided organization in some way involved in an enormous range of criminal activities. It has its own hierarchy, its own formalized system of ranks and methods of advancement, and its own procedures for settling disputes. Commonly, although in our view erroneously, La Cosa Nostra and "organized crime" are synonymous.
To other people organized crime consists of any large and organized enterprise engaged in criminal activity, regardless of any connection with La Cosa Nostra. To the extent that enterprises have continuity and a defined membership and engage in crime, then this is considered to be organized crime.
Finally, to still others the "best" definition of organized crime lies somewhere in between. For them organized crime consists of a large and organized enterprise engaged in criminal activity, with a continuity, a structure, and a defined membership, and that is likely to use other crimes and methods of corruption, such as extortion, assault, murder, or bribery, in the service of its primary criminal enterprise.
These differences in definition are especially important with respect to identifying the connection between the pornography industry and organized crime, because much of the evidence supports the conclusion that major parts of the industry are controlled by organizations that fit the second or third but not the first of the foregoing definitions. In particular, there is strong evidence that a great deal of the pornographic film and video tape distribution, is controlled by one Reuben Sturman, operating out of the Cleveland area, but with operations and controlled organizations throughout the country. Although we inevitably must rely on secondary evidence, it appears to us that Sturman's enterprise is highly organized and predominantly devoted to the vertically integrated production, distribution, and sale of materials that would most likely be determined to be legally obscene in most parts of the country. Of this we are certain, and to that extent we could say that significant parts of the pornography industry are controlled by organized crime. We also have some but less clear evidence that organizations like Sturman's, but not quite as large, play similar roles, and that all of these various organizations at times have employed other activities that themselves violate the law in order to further the production, distribution, and sale of pornographic materials. In this sense these organizations would fit the third as well as the second definition of organized crime.
We also have strong reason to believe, however, that neither Sturman's organization, nor some substantially smaller ones, are themselves part of La Cosa Nostra. In that sense this part of the industry would not fit the first of the above definitions of organized crime. We do not say that there are no connections with La Cosa Nostra. On the contrary, there seems to be evidence, frequently quite strong evidence, of working arrangements, accommodations, assistance, some sharing of funds, and the like, as well as evidence of control by La Cosa Nostra, but nothing that would justify saying that these organizations are La Cosa Nostra or are part of La Cosa Nostra.
Much the same could be said about the relationship between smaller pornography operators and La Cosa Nostra. Again there seems little evidence of direct ownership, operation, or control, but there does seem to be a significant amount of evidence that "protection" of these smaller operators by La Cosa Nostra is both available and required. This applies in some areas to distribution, in some to production, and in some to retail outlets themselves, in much the same way that it applies frequently to many more legitimate businesses. But we are not reluctant to conclude that in many aspects of the pornography business that La Cosa Nostra is getting a piece of the action.
This is not to say that La Cosa Nostra is not itself engaged in pornography. There also seems strong evidence that significant portions of the pornographic magazine industry, the peep show industry, and the pornographic film industry are either directly operated or closely controlled by La Cosa Nostra members or very close associates. Major portions of these industries seem to be as much a part of La Cosa Nostra as any other of their activities. At times there is direct involvement by La Cosa Nostra even with the day-to-day workings of business, and in many cases there is clear control even when the everyday management is left to others. In many of the reports and other documents we have received there has been evidence to the effect that members of the Columbo, DeCavalcante, Gambino, and Luchese "families" have been actively in as well as merely associated with the production, distribution, and sale of unquestionably pornographic materials. There is much evidence that alleged La Cosa Nostra members such as Robert " and others are or have in the recent past been major figures in the national distribution of such materials. Although we cannot say that every piece of evidence we have received to this effect is true, the possibility that none of this cumulative evidence is true is so remote that we do not take it seriously.
As was the case with many other topics within our mandate, our lack of investigative resources has made it impossible to investigate these matters directly. Moreover, the matters to be investigated with respect to organized crime are, as has been well known for decades, so clandestine that thorough investigation without conflicting information is virtually impossible to accomplish. Nevertheless, there has been much investigation by federal and state authorities, and we have found it important to rely on those investigations. We include as an appendix to the later specific discussion of organized crime a number of those reports prepared by other law enforcement agencies. We are indebted to all of those who have worked on these reports, for without them our investigation would have been much less complete. At times there is information in these reports that we are unsure of, but we have little doubt as to the general truth of the big picture painted by these reports, and we have little hesitancy in relying on them to the extent either of agreeing with the big picture, or of agreeing with specific facts where those facts recur in consistent form in information from a number of different sources. The general picture seems clear, and we invite recourse to those specific reports to fill out this general conclusion that seems most appropriate as a statement from us.
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