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PART 3: Law Enforcement Recommendations
CHAPTER 2
The effective enforcement of obscenity laws necessarily involves a concerted and responsive effort on the part of each facet of the criminal justice system. Personnel involved in each of these components must exhibit some concern and appreciation for its effect of obscene materials on a community. It is unrealistic to expect law enforcement agencies to devote the same attention to obscenity law violations that violent crimes command. This does not imply, however, that obscenity violations should be accorded the lowest priority, as it appears they are in many jurisdictions today. In order to control the flow of materials falling within the legal definition of obscenity, law enforcement officials must develop a reputation for initiating prosecution when violations are detected. Absent such enforcement policy, there is little incentive to observe existing obscenity laws. The consequences of a policy of inaction are compounded by the lucrative nature of obscenity trafficking.
The product of a successful investigation and vigorous prosecution is rendered virtually worthless if courts fail to appreciate the community significance of obscenity cases. Deterrence should be a significant factor in fashioning an appropriate sentence in these types of cases. Only public awareness of firm but fair sentencing practices in obscenity cases can foster an environment conducive to controlling the flow of these materials.
An observation common to much of the testimony heard by the Commission is that there has been a gradual relaxation over the last twenty years in the enforcement of obscenity laws. This trend is undoubtedly attributable to a number of factors, but its most conspicuous symptom was a dramatic loss of prosecutor interest in these cases. This dampened enthusiasm appears not to have been occasioned by any change in principle or philosophy, but instead was spawned by the judicial creation of insurmountable legal obstacles. In Memoirs v. Massachusetts,[82] the United States Supreme Court enunciated the requirement that material must be "utterly without redeeming social value" to be obscene.[83] This additional element of proof marked a significant departure from the pre-existing standard of proof. Prosecutors almost uniformly found this burden to be virtually impossible to satisfy[84] and as a consequence de-emphasized the regulation of obscene material.
Seven years later, in Miller v. California,[85] the Supreme Court refashioned the "social value" element of the obscenity standard and considerably eased the prosecution's burden of proof. However, according to a 1977 survey of prosecutors, the Miller standard neither increased the number of obscenity prosecutions nor the conviction rate nationally.[86] The number of jurisdictions actually prosecuting obscenity violations declined while obscene materials became more readily available.[87] It is therefore reasonable to conclude that Memoirs v. Massachusetts was only one of a number of factors contributing to the decrease in obscenity prosecutions.
Since 1973, however, the nature and extent of pornography in the United States has changed dramatically. The materials that are available today are more sexually explicit and portray more violence than those available before 1970. The production, distribution and sale of pornography has become a large, well-organized and highly profitable industry.[88] The growth of the pornography industry has been facilitated in large measure by inadequate law enforcement and prosecutorial resources in this area, and the meting out of minimal punishment to those who have been convicted of violating the obscenity laws. This relaxation of public policy has been further ingrained by the absence of any firm expression of citizen concern.
All individuals and agencies responsible for vice enforcement must be committed to giving obscenity violations adequate priority. As with any law enforcement objective, the agencies must use various criteria in determining the degree of attention the problem merits. This process requires an evaluation of the scope of the problem, the cost to the locality both in safety and economic terms and the public demand for increased enforcement efforts. The enforcement of obscenity laws must obviously be balanced against other law enforcement priorities. In some instances, this evaluation may result in a temporary realignment in enforcement attention, but most agencies will be able to effectively increase obscenity enforcement without substantially detracting from other areas of responsibility for significant periods of time.[89] Once a reputation for community intolerance is developed, officials need only perform periodic inspections.
The law enforcement community should recognize fully the magnitude of this multifaceted problem and bring into focus the means necessary to curtail it. Law enforcement agencies must examine the nature of the pornography industry within their respective jurisdictions and take steps to address the situation. Federal, state and local agencies need adequate manpower and the expertise of qualified investigators to conduct thorough investigations of obscenity law violations, especially those involving large scale pornography operations. The use of forfeiture laws to disgorge illicit profits is a potent prosecutorial tool.
The United States Department of justice should provide the leadership for a coordinated law enforcement effort through the mandate of its highest ranking officials and its ninety-four United States Attorneys. The Justice Department is able to provide valuable training and assistance to state and local prosecutors and law enforcement officials. The policies and practices of the Department of justice should lend impetus to a national reassessment of the prioritization of obscenity enforcement. Moreover, it can provide some of the impetus for legislative change.
Congress and the state legislatures must examine existing laws and enact the necessary changes to create an effective and precise means of addressing the expansive scope of the obscenity and pornography problem today.
Once an individual is charged with an obscenity violation, a United States Attorney or local district attorney should prosecute aggressively if the investigation and bringing of charges are to have any effect. This includes enforcing the existing laws and fully using other remedies particularly those laws providing forfeitures that could literally put many pornographers out of business.
Finally, when an individual is brought before the court and is convicted, the sentencing judge must have accurate and comprehensive information about the offender and the offense. The courts must impose sentences with the maximum deterrent effect and cease imposing sentences which merely increase the pornographer's cost of doing business.
The recommendations which follow attempt to accomplish these objectives.
RECOMMENDATION 1:
Congress should enact a forfeiture statute to reach the proceeds and instruments
of any offense committed under the Federal obscenity laws.
The addition of civil and criminal forfeiture provisions to the existing federal obscenity laws[90] would greatly enhance their deterrent effect. In addition to the penalties already prescribed by statute, a defendant would be subject to forfeiture of any profits derived from or property used in committing the offense. The Child Protection Act of 1984[91] presently contains such forfeiture provisions pertaining to offenses involving child pornography.[92]
The addition of forfeiture provisions in the federal obscenity statutes would have a profound effect on some of the most egregious offenders, especially those who are members of, associated with, or are influenced or controlled by, organized crime families. The forfeiture provision would affect those who profit by their illegal activity and who have created criminal enterprises large enough to own or lease real estate, fleets of motor vehicles, or other valuable assets. The loss of such valuable property would have a more significant deterrent effect than the mere imposition of a fine or modest period of incarceration which the offender may see as merely another "cost of doing business."[93] Forfeiture provisions would also aid law enforcement efforts by providing the government with property to be used in future undercover operations and perhaps even provide sufficient assets to reimburse a significant portion of investigative and prosecution costs.
According to the federal prosecutor in a series of Miami, Florida, obscenity cases commonly known as MIPORN where many of the defendants had tremendous assets scattered throughout the United States, forfeitures would have made a tremendous contribution toward underwriting the costs of the government investigation.[94]
Under current law even large scale and well-organized distributors of obscene material that have been repeatedly convicted retain their massive profits which they often use to finance other unlawful activity.[95] It is estimated that the film "Deep Throat" cost $25,000 to produce and has made profits of $50,000,000,[96] and few or none of these proceeds were paid to the "star" of the film, Linda Lovelace (now Marchiano) or others involved in the actual production.[97] The film's profits were used allegedly by the Perainos, reported members of the Columbo organized crime family,[98] to develop Brtanston Films of Hollywood, which distributed the horror film, "The Texas Chainsaw Massacre,"[99] to purchase yachts, airplanes, islands and property in the Bahamas, and as seed money for drug smuggling activities.[100]
In recognition of the need to seize substantial profits gained through unlawful activity and to prevent their use in other crimes, Congress has authorized forfeiture for other crimes.[101] Any new legislation should be drafted and implemented in a manner similar to other present federal laws to insure due process of law to all parties in interest.[102]
The only present authority to permit the forfeiture of profits and instruments derived from the distribution of obscene materials is RICO. Through 1985 no federal RICO cases have been brought to forfeit profits or instruments used in or derived from obscenity law violations.[103] The RICO statute currently is inadequate to reach the profits and instruments without establishing and relying on proof of two or more predicate offenses. The proposed legislation would allow forfeiture in the many cases where RICO cannot appropriately be used.
RECOMMENDATION 2:
Congress should amend the Federal obscenity laws to eliminate the necessity of
proving transportation in interstate commerce. A statute should be enacted to
only require proof that the distribution of the obscene material "affects"
interstate commerce.
Pursuant to provisions of 18 U.S.C. S1462 and 18 U.S.C. S1465 the United States is required to prove that the particular obscene material in question actually was transported in interstate commerce at a particular specified time and to and from particular and specified locations.[104]
This has become an increasingly insurmountable burden for federal prosecutors to meet in obscenity cases. Distributors of obscenity, especially those associated with or members of organized crime families, frequently avoid the mails and common carriers when they ship their wares. With the assistance of their attorneys such persons and organizations have developed intricate schemes of operation to prevent proof of this necessary element of the present statute.[105] They use their own trucks and sometimes make several stops or simulated deliveries or pickups along the way.[106] This process thwarts extremely expensive and time consuming surveillance by law enforcement officers and makes it virtually impossible to detect which items in a particular shipment actually crossed state lines.
The proposed amendment should take the form of an additional section of Title 18. Such sections should supplement existing sections 1462 and 1465 and include language which prohibits activities that "affect" commerce. The addition of such a statute would facilitate prosecutions while maintaining the integrity of the present statutory structure. In a multiple count indictment, charges could be brought against individuals under both sections, subject to constitutional limitations which exist in any such case. Legislation which creates a separate violation would prevent the effects of the inevitable and lengthy initial constitutional challenges to such new legislation from crippling or stopping all federal prosecutions.
A requirement that the prosecution prove the transaction "affects" commerce is a more realistic burden of proof which would close the technical loopholes these criminals have so successfully exploited. This requirement would be consistent with other federal statutes such as the Hobbs Act and the firearms laws.[107] An examination of the constitutional ramifications discloses no barrier to this proposed amendment.[108]
Article I, Section 8 of the United States Constitution empowers Congress to regulate commerce.[109] The interpretation and application of the constitutional limits on Congress' power to regulate has been the issue in many cases whose factual bases are widely divergent. The subject of regulation, whether it is production, distribution or consumption, is constitutionally immaterial so long as the activity in question is within the sphere of Congress' regulatory powers.[110] The underlying principles, however, have been applied consistently to a variety of factual situations. The particular subject matter of the statute should not present a barrier to a constitutionally valid amendment.
The distinction between regulating activities "in commerce" and regulating those which "affect commerce" is a valid one and has been maintained. The standards, however, have been recognized by the courts as being within the total ambit of Congress' constitutional regulatory powers.[111] The decision as to the scope of regulatory jurisdiction lies with Congress and is generally made as a matter of public policy rather than a decision dependent purely on legal considerations.
If the activity is other than purely local in nature it is subject to federal commerce power regulation. It is 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] 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.
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 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 involving children, violence, sado-masochism, or anything which would meet the description of unlawful sexually explicit depictions developed in such 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.
The Mann Act[119] makes it a federal offense to transport "any woman or girl" in interstate or foreign commerce for the purpose of "prostitution or debauchery, or for any other immoral purpose, or with intent and purpose to induce, entice, or compel such woman or girl to become a prostitute, or to give herself up to immoral practice, debauchery or to engage in any other immoral practice."[120] Men and boys who are used in prostitution and in the production of obscene materials are often transported in commerce for the very purposes proscribed in the present statute.[121] Those who exploit men and boys for illegal and immoral purposes should be subject to the same punishment as those who exploit females.
The proposed amendment would simply afford protection to a class of persons who are without adequate legal redress. While women and girls may continue to comprise the majority of such cases of exploitation these statistics should provide no excuse to exclude men and boys from equal protection purely on the basis of the smaller number of reported cases.[122]
Further, the Act should be amended to prohibit illegal acts rather than the current prohibition against immoral acts. This amendment would address and alleviate the concerns of those who suggest an overzealous prosecutor may use the Act to harass individuals engaged in lawful consensual sexual activity. This amendment would not expand the scope of enforcement or prosecution and it should set clear guidelines for the types of activities that are proscribed.
RECOMMENDATION 5:
Congress should amend Title 18 of the United States Code to specifically
proscribe obscene cable and satellite television programming.
The United States Code proscribes the utterance of "any obscene, indecent or profane language by means of radio communication."[123] Because cable and satellite television programming is not conveyed by any means interpreted by the courts to be a radio communication, any obscene programming is not covered by the prohibitions of the present statute.
The Cable Communications Policy Act of 1984 attempts to provide another avenue for the prosecution of obscenity shown over cable television.[124] The Act, provides:
Whoever transmits over any cable system any matter which is obscene or otherwise unprotected by the Constitution of the United States shall be fined not more than $10,000 or imprisoned not more than 2 years, or both.[125]
The provisions of this section may be in conflict with two other sections of the act governing editorial control of programming by cable operators. Section 531(e) of Title 47 provides that:
Subject to Section 544(d) of this title, a cable operator shall not exercise any editorial control over any public, educational or governmental use of channel capacity provided pursuant to this section.
In addition, Section 544(d) provides, in part:
(1) Nothing in this subchapter shall be construed as prohibiting a franchising authority and a cable operator from specifying, in a franchise or renewal thereof, that certain cable services shall not be provided or shall be provided subject to conditions, if such cable services are obscene or are otherwise unprotected by the Constitution of the United States. (2) (A) In order to restrict the viewing of programming which is obscene or indecent, upon the request of a subscriber, a cable operator shall provide (by sale or lease) a device by which the subscriber can prohibit viewing of a particular cable service during period selected by that subscriber.
Section 544(d) seems to contemplate allowing the operator to provide obscene programming while Section 559 makes it a crime to do so. The apparent conflict should be resolved and legislation should provide clear guidance for cable operations, federal prosecutors and law enforcement officers.[126]
RECOMMENDATION 6:
Congress should enact legislation to prohibit the transmission of obscene
material through the telephone or similar common carrier.
This Commission has received substantial evidence of the use of the telephone to transmit obscene material.[127] Dial-A-Porn services offer the caller the opportunity to participate in obscene telephone conversations or to receive obscene messages.[128]
Two years ago, the Congress enacted legislation amending section 223 of the Communications Act of 1934.[129] This enactment prohibited the use of the telephone to make obscene or indecent communications for commercial purposes to anyone under eighteen years of age except where in compliance with regulations issued by the Federal Communications Commission.[130] The FCC promulgated regulations making it an exception for the provider of a recorded message if the message was made available only between the hours of 9:00 p. m. and 8:00 a. m. eastern standard time or if the caller made prepayment by credit card in the case of a "live" message.[131] Carlin Communications challenged the FCC regulation.
On review, the United States Court of Appeals for the Second Circuit found the regulations were invalid.[132] The court found that the government had a compelling interest in protecting minors from salacious material, but that the FCC regulations were not well tailored to meet their objectives, which could be achieved by less restrictive alternatives.[133] In dicta, the court said the FCC should have given more serious consideration to other options such as "blocking" and access codes. Through "blocking" a subscriber can have access to all "976" numbers blocked from his telephone. Access codes could be issued to subscribers over eighteen who would have to dial the code in order to receive the sexually explicit message."'
On October 16, 1985, the FCC announced new regulations governing Dial-A-Porn.[135] Under the new regulations, Dial-A-Porn services must require either an authorized access or identification code or they must obtain prepayment by credit card before transmission of a sexually explicit message.[136]
Carlin challenged the new FCC regulations, and on April 11, 1986, the Court of Appeals granted their petition and set aside the regulations as applied to Carlin.[137] The Court of Appeals relied on statements from New York Telephone that access or identification codes are not technologically feasible in NYT's network,[138] and found that "the record does not support the FCC's conclusion that the access code requirement is the least restrictive means to regulate Dial-A-Porn. . . ."[139] The Court again referred to "blocking" as a less restrictive means of regulating Dial-A-Porn.[140] Blocking devices installed on the telephone customer's own terminal equipment could be used to block access to one or more pre-selected telephone numbers.[141] The Court also suggested that the FCC should have considered the feasibility of passing along the cost of customer premises blocking equipment to the providers of Dial-A-Porn and/or the telephone companies.[142]
The latest decision by the Second Circuit leaves the state of the law regarding Dial-A-Porn even more uncertain. The two attempts by the FCC to promulgate regulations in accordance with the federal statute have failed. The Court of Appeals found earlier that limitations on the hours that Dial-A-Porn messages may be offered were not well tailored enough to regulate the problem.[143] Now the Court has ruled that access codes are unduly restrictive as applied to Carlin in New York, but may be permissible elsewhere.[144] The "blocking" option advanced by the Court has serious practical limitations. Blocking may not be available to all telephone customers.[145] Those who obtain the service would either lose access to all "976" numbers,[146] or have to pre-select which numbers they wanted blocked.[147] Few parents would have sufficient knowledge of the multitude of Dial-A-Porn numbers to be able to pre-select them and prevent their children from calling them by use of a blocking device, and minors would still be free to make the calls from telephones not equipped with blocking devices.
The provision of the federal statute permitting Dial-A-Porn messages to be provided in accordance with FCC regulations[148] has proven unworkable in addition to providing a "safe harbor" provision for Dial-A-Porn merchants. Congress should enact legislation that simply prohibits the transmission of obscene material through the telephone or similar common carrier.[149]
RECOMMENDATION 7:
State legislatures should amend, if necessary, obscenity statutes containing the
definitional requirement that material be "utterly without redeeming social
value" in order to be obscene to conform with the current standard enunciated by
the United States Supreme Court in Miller v. California.[150]
A minority of jurisdictions, including the State of California,[151] retain the requirement that material must be "utterly without redeeming social value" in order to be found obscene.[152]
This standard emanates from the case of Roth v. United States, and the later case of Memoirs v Massachusetts[153] in which a plurality of the Supreme Court held that a book alleged to be obscene cannot be proscribed unless it is found to be utterly without redeeming social value.[154] The court reversed an obscenity conviction involving John Cleland's book Memoirs of a Woman of Pleasure because the work possessed a "modicum" of social value.[155] The Memoirs test made it almost impossible to convict in obscenity cases.[156] When the Supreme Court decided Miller v. California,[157] a new obscenity test resulted.[158] Although the Court remained divided on basic philosophical grounds, not a single member of the Court voted to retain the Memoirs standard. (emphasis added). Writing for the Court in Miller Chief Justice Warren E. Burger said the standard formulated in Memoirs required proof of a negative, "a burden virtually impossible to discharge under our criminal standards of proof." (emphasis added).[159]
The Court also noted that the standard had even been abandoned by Justice William Brennan who authored the Court's opinion in Memoirs. To the extent that the Memoirs standard exists today, it makes prosecution of obscenity cases extremely difficult. To win acquittal on an obscenity charge, a defendant need only demonstrate some miniscule social value as opposed to the serious literary, artistic, political or scientific value required under Miller. The Memoirs standard is still the law in California[160] and has posed a major obstacle to successful obscenity prosecutions. Consequently, the legal problems attendant to prosecution may contribute to factors which the wholesale pornography industry is centered in the Los Angeles area, and produces most of the materials sold in the entire United States. The pornography industry in the area of Los Angeles earns at least $550 million a year[161] and produces eighty percent of the sexually explicit videotapes, eight millimeter films and novelties are produced there.[162]
The principle of Federalism protects the constitutional prerogative of the states to enact obscenity laws which embody standards less stringent than those approved by the United States Supreme Court in Miller. As Chief Justice Burger wrote in Paris Adult Theatre I v. Slaton[163]
The States, of course, may follow such a "laissez faire" policy and drop all controls on commercialized obscenity, if that is what they prefer, just as they can ignore consumer protection in the marketplace, but nothing in the Constitution compels the States to do so with regard to matters falling within state jurisdiction. See, United States v. Reidel, 402 U.S., at 357, 28 L. Ed. 2d 813; Memoirs v. Massachusetts, 383 U.S., at 462. 16 L. Ed. 2d 1(White, J., dissenting). "We do not sit as a superlegislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions." Griswold v. Connecticut, 381 U.S. 479, 482, 14 L. Ed. 2d 510, 85 S. Ct. 1678(1965). See, Ferguson v. Skrupa, 372 U.S., at 731, 10 L. Ed. 2d 93, 95 ALR 2d 1347(1963); DayBrite Lighting Inc. v. Missouri, 342 U.S. 421, 423, 96 L. Ed. 469, 72 S. Ct. 405(1952).[164]
Law enforcement officers in California blame the existing law for severely hampering their effectiveness in eliminating this activity.[165] A Los Angeles Police Department Captain testified, "We have pleaded with the state legislature ever since Miller came into being to adopt it."[166]
If states sincerely wish to provide an effective basis for law enforcement this change in standards is essential.
RECOMMENDATION 8:
State legislatures should amend, if necessary, obscenity statutes to eliminate
misdemeanor status for second offenses and make any second offense punishable as
a felony.
State obscenity statutes frequently classify a first conviction as a misdemeanor. In some jurisdictions an obscenity violation becomes a felony when the specific offender is convicted a second time. In other jurisdictions an obscenity violation will remain a misdemeanor regardless of the number of prior convictions. This system results in minimal penalties for many offenders and is no deterrent to large scale criminal enterprise.
State obscenity laws which provide misdemeanor penalties for recidivist offenders produce results which have a minimal deterrent effect. Fines in the amount of thirty to ninety dollars are a common disposition for a first offense in Chicago.[167] Three hundred to five hundred dollar fines are standard in Houston, Texas.[168] In Florida, a corporation with twenty-five prior obscenity convictions was fined $1,600.[169] In Los Angeles, where the industry earns $550 million a year,[170] a major distributor is often fined no more than $10,000.[171] The amounts of these fines are inconsequential when compared to the profits earned by many producers or sellers of obscene material.[172]
An amendment to state statutes enhancing the penalties for subsequent convictions for obscenity violations would recognize the recidivist nature of the crime and should be directed to management personnel of the wholesale or retail operation. Classifying the crime as a felony would allow judges to impose substantial fines and periods of incarceration for a repeat offender. A conviction for a felony would substantially reduce the incidence of inappropriate sentencing for recidivists.
RECOMMENDATION 9:
State legislatures should enact, if necessary, forfeiture provisions as part of
their obscenity laws.
The addition of forfeiture provisions to the state obscenity statutes would greatly enhance their deterrent effect and would be an effective tool for law enforcement officers to use against the most egregious offenders. These forfeiture provisions may mirror such provisions found in several federal statutes. The precise scope of the forfeitures should be the decision of each state legislature and subject to judicial interpretation.
Some states already have taken the initiative in implementing forfeiture provisions in their obscenity laws. The Metropolitan Bureau of Investigation (M.B.I.) in Orlando, Florida, provides an excellent example of the effectiveness of forfeiture provisions under state law. Using the forfeiture provisions of the Florida RICO Act, the M.B.I. obtained forfeitures of $80,000 to $100,000 worth of property in a single investigation and prosecution.[173] The forfeited property included two computer systems, two projection screen televisions and a large assortment of films, magazines, and novelties.[174] Forfeiture should be used to uproot the capital of pornography producers and distributors. Used effectively, forfeiture can substantially handicap these businesses.
RECOMMENDATION 10:
State legislatures should enact a Racketeer Influenced Corrupt Organizations
(RICO) statute which has obscenity as a predicate act.
States which do not have obscenity as a predicate offense for a racketeer influenced corrupt organizations (RICO) violation should consider enacting such legislation. RICO provides an effective means to substantially eliminate obscenity businesses. (See, Recommendations for the United States Department of Justice, Infra.).
RECOMMENDATION 11: The Attorney General should direct the United States Attorneys to examine the obscenity problem in their respective districts, identify offenders, initiate investigations, and begin prosecuting them without delay.
If the flow of obscene material is going to be resolved through criminal prosecution, the Attorney General of the United States must take a significant, ongoing and personal role in directing a combined federal, state and local effort.
The Attorney General should direct the United States Attorneys to identify the major sources of obscene material within their districts and commence prosecutions without further delay. The United States Attorneys should contact their state and local counterparts and identify persons and organizations responsible for manufacturing and distributing obscene material in their districts. The Attorney General must also follow up on his directives and ensure compliance by the United States Attorneys.
The United States Department of justice, through guidelines contained in the United States Attorneys' Manual, places a priority on the prosecution of three types of obscenity cases: those involving large scale distributors who realize substantial incomes from multi-state operations; those where there is evidence of involvement by known organized crime figures; and those involving child pornography.[175] United States Attorneys may also increase the priority for cases involving highly offensive material or cases where obscenity is found to be a particular problem in the jurisdiction.[176]
Former Attorney General William French Smith and Assistant Attorney General Stephen S. Trott have urged the United States Attorneys to follow existing departmental guidelines and to prosecute obscenity cases aggressively. On October 4, 1982, Attorney General Smith sent a memorandum to all United States Attorneys calling attention to the guidelines and encouraging aggressive and proactive prosecution of obscenity cases.[177] Attorney General Smith also suggested using the Law Enforcement Coordinating Committees to determine the nature and extent of the obscenity problem in the individual districts.[178] Despite this directive from the Attorney General not a single indictment alleging a violation of federal obscenity laws was returned in 1983 in any district in the United States.[179]
Assistant Attorney General Trott sent an additional memorandum to the United States Attorneys on August 24, 1983, calling on them to "step up our level of enforcement" of obscenity violations.[180] Assistant Attorney General Trott again called attention to the guidelines and asked the United States Attorneys to set up a meeting with the United States Postal Inspection Service and Federal Bureau of Investigation in their districts to evaluate the need for additional enforcement.[181] He also offered assistance from the Criminal Division of the Department of justice if an individual United States Attorney needed help in structuring an enforcement program.[182]
This directive has had little effect on most federal prosecutors. The departmental guidelines have been used as "excuses" to decline prosecution of obscenity cases involving adult material. The guidelines have been perceived as establishing exclusive categories for prosecution rather than minimum criteria.
The Department's guidelines are clear and the United States Attorneys have been instructed by both the Attorney General and the head of the Criminal Division to use these guidelines to prosecute obscenity cases. A Justice Department official told the Commission in Chicago, "These are not declination guidelines, they are priority guidelines."[183]
Since the time of these directives fewer than ten federal districts[184] have brought obscenity prosecutions despite the presence of large scale distributors and organized crime involvement in their jurisdiction.[185]
There is widespread evidence that the stated policy of the Department of justice and the established guidelines are not being implemented by the United States Attorneys.[186] Very few obscenity cases have been brought by the United States Attorneys. In addition, the Department of Justice and the United States Attorneys have cited the rigorous pursuit of child pornography cases as compliance with the Attorney General's mandate and as a rationale for neglecting obscenity prosecutions.
From May 1, 1984, through July 1985, there were obscenity prosecutions in only seven of the ninety-four federal districts.[187]
There were no obscenity prosecutions in the districts encompassing the Southern District of New York (Manhattan) or the Central District of California (Los Angeles)[188] where the majority of obscene materials are now and were then being produced or distributed. [189]
One witness testified before the Commission that he contacted the office of the United States Attorney for the Central District of California in Los Angeles and requested information regarding the number of obscenity prosecutions brought by that office during the period from 1979 to 1982 along with the number of defendants involved and the number of convictions which resulted.[190] The United States Attorney responded that during that period there was only one prosecution and it involved child pornography.[191] In a letter dated February 22, 1984, the United States Attorney for the Central District of California in Los Angeles, said that it would be a "misuse of the limited resources of this office to prosecute so-called adult films" and added that he and his predecessor had concluded that films of this variety could not be prosecuted successfully in that district.[112]
The perception is pervasive among federal law enforcement agents that most United States Attorneys will not prosecute cases involving obscene matter. According to an Assistant Chief Postal Inspector, the Postal Inspection Service presents very few obscenity cases to the United States Attorneys because federal prosecutors will not authorize prosecution.[193] Experiences of Postal Inspectors in which federal prosecutors have declined prosecution of cases have dissuaded them from fully using their existing resources to investigate obscenity cases.[194]
An agent of the United States Customs Service testified that his office had made countless thousands of seizures of adult materials over the last two years, but had presented none of them to the United States Attorneys' offices.[195] The agent said it was his understanding from the Assistant United States Attorneys that the Department of justice policy was not in favor of prosecuting obscenity cases and presentation would be pointless.[196] Similar statements have been received from federal agents in Minnesota and New York.[197] The same Customs agent testified that he had presented fifty different child pornography seizures to the United States Attorneys for prosecution of which approximately fortyseven were accepted for prosecution.[198]
While the Departmental guidelines make both child pornography and enumerated types of adult material of equal priority, there is a practice of prosecuting child pornography ahead of all else and to the virtual exclusion of obscenity cases. A Department of justice official testified that all child pornography cases "merit priority" while the Department seeks obscenity cases which would have "significant deterrent effect."[198]
Despite stated departmental objectives, in practice, emphasis on child pornography to the exclusion of adult obscenity cases is apparent.[200] While aggressive prosecution of child pornography cases is laudable, it should not be a justification for the failure to prosecute appropriate cases involving obscene material. The small number of obscenity prosecutions is not a product of the Department's existing guidelines. The lack of obscenity prosecutions is a result of the way in which the guidelines have been interpreted and not implemented by United States Attorneys. The reverse of the Department's stated policy appears to be the actual practice. The guidelines are used as a basis for declination, i.e.: a reason to "get rid of a case presented", and are not used to establish prosecution priorities. This practice has created the perception among federal law enforcement agents that the work necessary to present an obscenity case to the United States Attorney's office is a wasted effort.[201]
The United States Attorneys should make, as the Assistant Attorney General requested in his memorandum, a realistic appraisal of the obscenity problem in their respective jurisdictions. They should identify existing violations of obscenity laws, use Departmental guidelines to create priorities and begin to prosecute offenders aggressively and without further delay.
In implementing the priorities under the Department of Justice Guidelines, the United States Attorneys may consider examining the nature of the obscene materials. This may be done in accordance with this Commission's findings of harm with respect to each class of material.[202]
Only the Attorney General by direct and continuous action and personal supervision can ultimately ensure that these federal officers fulfill their responsibility in this neglected area. This attention and supervision should result in immediate positive results in law enforcement and prosecution efforts. The effects of this action will have long term consequences and will serve as the foundation for a continuing prosecution and enforcement program.
RECOMMENDATION 12: The Attorney General should appoint a high ranking official from the Department of Justice to oversee the creation and operation of an obscenity task force. The task force should consist of Special Assistant United States Attorneys and federal agents who will assist United States Attorneys in the prosecution and investigation of obscenity cases.
The Attorney General should create a task force under the direction of a high ranking official, of no less stature than a Deputy Assistant Attorney General, to investigate and prosecute obscenity law violations. The director of the task force should be included in all pertinent policy and budget decisions. The individual appointed must have a high degree of personal commitment to the objective of this task force which will require countless hours of personal supervision. This task force should attack the obscenity problem in a concerted and organized manner.
The director of the task force should enlist aggressive and well trained prosecutors and investigators. Experienced prosecutors could be detailed from the Department of justice or the United States Attorneys' offices on a fulltime and/or part-time basis. The Federal Bureau of Investigation, the United States Customs Service and the United States Postal Service should all contribute investigators to the task force. All prosecutors should be seasoned trial attorneys familiar with complex obscenity law issues and defense tactics.
The task force members should be brought together by the Department of justice for intensive training and then begin immediate service. A selected number of prosecutors from each United States Attorney's office including selected United States Attorneys should also participate in this training to enable them to understand and deal with the problem in each and every federal district where violations occur.
The task force should be used to address two major concerns. First, the task force prosecutors would be particularly helpful in jurisdictions in which the United States Attorneys are burdened with heavy caseloads and believe they cannot allocate manpower to prosecute such crimes or where the Assistant United States Attorneys lack expertise in obscenity prosecutions.[203] The task force would play a support role for the United States Attrorneys and federal investigators by assisting them with their cases and by serving as a national resource for legal and technical advice as well as a source of information. Second, the task force could be used to assist, or at their request, relieve United States Attorneys of these responsibilities during major investigations of a national scope.
The task force would complement the permanent staff of United States Attorneys as needed or when requested completely take over investigation and prosecution in a particular district.
RECOMMENDATION 13: The Department of Justice should initiate an obscenity law enforcement data base which would serve as a resource for Federal, State and Local law enforcement agencies.
There is no government department or agency which presently serves as a centralized source of complete information for prosecutors and investigators involved with obscenity cases.[204] Federal prosecutors and investigators must currently "recreate the wheel" in almost every new case developed. Many cases involve the same corporations and individuals and a duplication of efforts is a substantial waste of precious investigative time and resources. The Obscenity Task Force discussed in the Department of Justice Recommendation should be complemented by the creation of such a data base within the Department of justice.
The data base should consist of profiles of cases prosecuted, case histories, corporate records, real estate records, a brief bank, information concerning known offenders, individuals associated with organized crime families and any other information pertinent to the investigation and prosecution of obscenity cases. The data base would enable federal, state and local law enforcement personnel to draw on information and expertise gathered nationwide. This data base should also cross-reference the information contained in the data base created for child pornography.[205]
Two experienced Department of Justice Attorneys with adequate support staff could easily administer this project which would result in a substantial reduction of investigative expenses. The information should be readily available to law enforcement agencies in the legitimate investigation of criminal activity, but safeguards should be enacted to avoid the potential abuse of individual civil liberties.
RECOMMENDATION 14: The United States Attorneys should use the Law Enforcement Coordinating Committees to coordinate enforcement of the obscenity laws and to maintain surveillance of the nature and extent of the obscenity problem in the localities within their districts.
The Law Enforcement Coordinating Committees (LECCs) developed under the direction of former Attorney General William French Smith are comprised of the United States Attorney and representatives of federal, state, and local law enforcement agencies within the particular judicial district. The LECC's objective is to improve cooperation and coordination among participating agencies. In addition the LECCs develop law enforcement priorities for the district, target the most serious crime problems and provide a forum for an exchange of information and intelligence.
The United States Attorney for the Northern District of New York arranged a LECC conference on child pornography in his district.[206] The two hundred law enforcement personnel in attendance were addressed by Federal Bureau of Investigation Agents, United States Postal Inspectors, state police, and state and local prosecutors.[207] The New York conference greatly increased awareness of the child pornography problem and contributed to the almost immediate initiation of at least three child pornography prosecutions.[208]
In July 1984, the United States Attorney for the Eastern District of North Carolina established an LECC subcommittee to investigate obscenity, organized crime and child abuse.[209] At that time the North Carolina obscenity law was considered one of the weakest in the United States and the state had the highest number of "adults only" pornographic outlets per capita of any state in the nation.[210] The North Carolina LECC subcommittee was comprised of federal, state and local law enforcement officials and spent a year developing a law enforcement blueprint.[211] The subcommittee discovered involvement of organized crime members and their associates in the obscenity business in North Carolina.[212] As a result of its investigation the LECC subcommittee drafted and recommended a more effective state obscenity law which was subsequently enacted by the North Carolina legislature.[213] They also recommended continued cooperation between federal and state authorities, and the creation of a statewide "pornography task force."[214] As a result of these efforts by the LECC subcommittee, the distribution of obscenity in North Carolina can now be more effectively controlled.[215] These two examples illustrate the effectiveness of the LECCs when utilized by United States Attorneys who are committed to fighting obscenity and its related organized crime elements.
The Department of justice guidelines allow United States Attorneys to prioritize obscenity cases where a particular problem has been identified in the district. The LECCs are a means for the United States Attorney to maintain surveillance of the nature and extent of obscenity trafficking in his or her particular jurisdiction and they should be used specifically for that purpose.
RECOMMENDATION 15: The Department of Justice and United States Attorneys should use the Racketeer Influenced and Corrupt Organizations Act (RICO) as a means of prosecuting major producers and distributors of obscene material.
Recent amendments to the Racketeer Influenced and Corrupt Organizations Act (RICO) made obscenity offenses predicate crimes under the statute.[216] To date, no prosecutions against producers or distributors of obscene material have been brought under RICO in any of the ninety-four federal districts. RICO was enacted as part of the Organized Crime Control Act of 1970.[217] Prosecution under RICO arises when an individual demonstrates an established pattern of racketeering activity. Section 1961(5) requires that at least two of the federal or state predicate crimes enumerated in section 1961(1) must have been committed by the individual within a ten year period.[218] Offenses relating to obscenity are included among the predicate offenses.[219] The activities proscribed under RICO are listed in section 1962 as follows:
The penalty provisions of 18 U.S.C. S1963 provide for a fine of not more than $25,000 or imprisonment for not more than twenty years or both.[221] The statute also provides for mandatory forfeiture of:
Department of justice guidelines regarding RICO prosecutions appropriately prohibit a United States Attorney from bringing an indictment for a violation of section 1962(c) based upon a pattern of racketeering activity growing out of a single criminal episode or transaction.[222] Thus an individual could not be indicted under RICO based on violations of 18 U.S.C. S1461 (mailing obscene matter) and 18 U.S.C. S1463 (mailing indecent matter on envelope or wrapper) if both arise out of the same mailing. This is a situation which may occur frequently in obscenity cases and thus preclude the United States Attorney from prosecuting under RICO.[223] It should be obvious that the stringent forfeiture provisions under RICO would be one of the strongest weapons in the prosecution arsenal and could, in appropriate cases, virtually eliminate a large scale pornography operation.
RECOMMENDATION 16:
The Department of Justice should continue to provide the United States Attorneys
with training programs on legal and procedural matters related to obscenity
cases and also should make such training available to state and local
prosecutors.
The preparation for trial of an obscenity case involves complex legal and procedural issues. An inexperienced prosecutor may often encounter an experienced defense counsel who specializes in obscenity law and travels throughout the country defending these cases. Defenses and issues which are raised in each case are likely to be similar in prosecutions throughout the country. Trial and appellate case law developed in state and federal cases are very similar. Poorly developed case law developed on the state level can have adverse effects on federal prosecutions and vice versa.
Training programs offered by the Department of justice that prepare attorneys to address these issues will enable federal prosecutors to be more knowledgeable and effective. They would be of similar value to state and local prosecutors if made available to them. These programs should include a familiarization with defense tactics which may include personal attacks or harassment or law suits against prosecutors and investigators.
RECOMMENDATION 17:
United States Attorneys should use all available Federal statutes to prosecute
obscenity violations involving cable and satellite television.
The contents of some programs shown on cable and satellite television channels have become a matter of increasing public concern.[224] Some of the feature films shown depict sexual themes, sexual acts and materials which may be obscene under Miller.
The obscenity standard enunciated by the Supreme Court in Miller v. California can be applied to material transmitted over cable television. When the United States Supreme Court declared that obscenity is not protected speech under The First Amendment, no distinction was made as to the medium of expression.[225] As the United States District Court in Utah found in Community Television of Utah v. Roy City,[226]
The Miller standard is applicable. It is a national standard with a core of uniformity which allows for a degree of flexibility at a community level. It may be uniformly applied to almost all forms of publicly available communication. Books, magazines, cassettes, periodicals, movies, and cable television are all treated essentially in the same fashion regardless of numbers. (emphasis added)[227]
The court went on to explain, "The Court finds great difficulty in distinguishing (other than the popcorn) between going to the movies at a theatre and having the movies come to me in my home through electronic transmission over wire. The choice is mine. The location is different. The content is the same."[228]
An individual may possess and view obscene materials in the privacy of his own home.[229] Despite popular arguments to the contrary, it is well established in decisions by the United States Supreme Court that there is no correlative right to receive, import, or distribute the obscene materials. (emphasis added)[230] An argument that in the cable area the obscene materials are exhibited to consenting adults only is not a defense to an obscenity prosecution.[231]
The Court in Paris Adult Theaters I v. Slaton,[232] stated,
Finally, petitioners argue that conduct which directly involves "consenting adults" only has, for that sole reason, a special claim to constitutional protection. Our Constitution establishes a broad range of conditions on the exercise of power by the States, but for us to say that our Constitution incorporates the proposition that conduct involving consenting adults only is always beyond state regulation, is a step we are unable to take.[233]
In addition to the federal obscenity laws codified in 18 U.S.C. S1461, the Cable Communication Policy Act of 1984 provides another avenue for the prosecution of obscenity shown over cable television.[234]
The Act, provides:
Whoever transmits over any cable system any matter which is obscene or otherwise unprotected by the Constitution of the United States shall be fined not more than $10,000 or imprisoned not more than 2 years, or both.[235]
This section should be used by federal prosecutors if potential conflicts within such Chapter are resolved. Prosecutors should also vigorously enforce any new legislation enacted in the area.
The inability of law enforcement officials to control obscene cable programming is compounded by the inaction of the Federal Communications Commission in this entire area and makes enforcement efforts by United States Attorneys in each district essential.
RECOMMENDATION 18:
State and Local prosecutors should prosecute producers of obscene material under
the existing laws including those prohibiting pandering and other underlying
sexual offenses.
Existing state laws provide penalties for pandering. Pandering or "pimping" generally involves the procuring of an individual to commit an act of prostitution for some form of consideration.
The production of obscene material almost always involves acts of prostitution. Performers are recruited and paid or otherwise induced (voluntarily or involuntarily) by producers to perform or have performed upon them various sexual acts including intercourse, fellatio, cunnilingus, sodomy and bestiality. These acts are filmed or otherwise recorded for reproduction and commercial distribution. By procuring an individual to commit an act of prostitution the producer of obscene material is acting in the same capacity as a pimp.[236] Like any other pimp he reaps his financial reward from these acts of prostitution.
Pandering laws are an effective law enforcement tool since they present a separate and distinct crime and do not require proof of obscenity.[237] Law enforcement officers should view the pandering which takes place through the production of obscene materials the same as pandering in any other prostitution case. This Commission has heard substantial testimony regarding coercion used in the production of sexually explicit materials. We accordingly suggest that law enforcement officers should use considered judgment and avoid unnecessary charges of prostitution against the performers.
State and local prosecutors should also scrutinize obscene material for evidence of any other underlying criminal offenses such as physical sexual abuse and bring appropriate charges against the persons responsible for the commission of such crimes.
Persons who appear in pornographic materials often may be doing so under threat of force or coercion.[238] Law enforcement officers should be sensitive to claims of sexual assault, sexual imposition, rape or related crimes of violence against performers. While some performers are willing to engage in the sexual activities required during the production of pornographic materials, law enforcement officers should remain aware of the significant possibility that performers who are forced to engage in certain sexual acts are victims of these underlying crimes.
RECOMMENDATION 19:
State and Local prosecutors must make a careful assessment of the obscenity
problem in their jurisdictions, identify offenders involving both adult and
child material, and commence prosecution without further delay.
There is no substitute for an aggressive prosecutor who will vigorously enforce the existing obscenity laws. Prosecutors in Orlando, Florida; Atlanta, Georgia; and Cincinnati, Ohio, have compiled impressive records in enforcing the laws of those states.
For sixteen years[239] the Solicitor for Fulton County, Georgia, aggressively prosecuted any obscenity violation brought to the attention of that office. As a result Atlanta now has no theatres or bookstores which show or sell materials that would be found obscene under Miller.[240] Consistent enforcement efforts have had a substantial deterrent effect.[241]
In Cincinnati, there are no bookstores, movies or cable television programs which are sexually explicit and would be found obscene under Miller.[242] The chief of the Cincinnati vice squad attributed this result to "a strong prosecutor and a prosecutor willing to accept the cases and go ahead and prosecute."[243]
In Houston, prosecution of pornography cases has been a high priority and the prosecutor has maintained a conviction rate of ninety-two percent while handling over two hundred cases per year.[244]
For the past fifteen years, only one detective on the Miami, Florida, police department has been assigned to investigate obscenity violations.[245] During that time, this investigator has brought over one thousand cases for prosecution and a conviction was obtained in every case.[246] The number of "adults only" pornographic outlets in Miami has decreased during this same period from twenty-three to eight.[247]
Local law enforcement agents should also seek assistance from federal agencies to effectively combat organized crime involvement in pornography when identified. According to a local law enforcement officer, "Without the mutual exchange of information of the joint task force, local law enforcement cannot and will not be able to cope with the situation of organized crime and the delivery and dissemination of pornography..."[248]
State and local prosecutors must accept the challenge and enforce the existing laws stringently and consistently so that purveyors of obscene material will find no haven in their jurisdictions. These efforts should be based upon an evaluation of the relative harmful effects of materials available.[249] This evaluation should include particular consideration of explicitly violent materials and materials which are humiliating or degrading.
RECOMMENDATION 20:
State and Local prosecutors should allocate sufficient resources to prosecute
obscenity cases.
See, Recommendation 19 for further discussion of resources devoted to obscenity investigation and prosecution.
RECOMMENDATION 21:
State and Local prosecutors should use the bankruptcy laws to collect unpaid fines.
Courts frequently impose a monetary fine after a conviction for an obscenity violation. In a number of cases, especially those involving corporate defendants, these fines may go unpaid. Once conventional means of collecting of such fines have been exhausted these outstanding judgments can be satisfied by the use of bankruptcy laws.[250] When a defendant accumulates two or more outstanding debts the prosecutor can file an involuntary bankruptcy petition and the court can ultimately take custody of any assets and liquidate them to satisfy those debts including unpaid fines. The liquidation should include items of value such as real property, structures and fixtures. The liquidation would not include the sale or distribution of obscene material which may be a part of the inventory. All such material would be disposed of in the manner provided by law.
The prosecutor in Atlanta, Georgia, successfully used the bankruptcy laws to collect fines and made it unprofitable for many dealers in obscene material to stay in business.[251]
The bankruptcy proceedings are also useful in determining the true ownership of the businesses who deal in obscene materials. This is particularly helpful when "sham" or "shell" corporations are used to conceal ownership. The results may also assist prosecutors to target the culpable individuals for subsequent criminal prosecution.
State and local prosecutors also may enlist the assistance of federal investigators and prosecutors when dealing with a major obscenity distributor with substantial resources. These federal agents and prosecutors could assist in identifying the resources and their location for inclusion in the bankruptcy action.
RECOMMENDATION 22:
State and Local prosecutors should use all available statutes to prosecute
obscenity violations involving cable and satellite television.
State and local prosecutors should prosecute cable and satellite television programmers or operators under existing state statutes for exhibiting any program that is obscene under the Miller test. The Commonwealth's Attorney for the city of Virginia Beach, Virginia, monitored and videotaped fifty hours of programming on a local cable channel, shown in his jurisdiction. Thirteen and one half hours of the videotaped programming were submitted to a grand jury, which returned seven indictments against the cable operator for distributing obscene material. As a result of those indictments, the cable operator eliminated the channel in question from its program offerings.[252] (See, Department of Justice Recommendations and Recommendations for Law Enforcement Officers in this Chapter).
RECOMMENDATION 23:
State and Local prosecutors should enforce existing corporate laws to prevent
the formation, use and abuse of shell corporations which serve as shelters for
producers and distributors of obscene material.
Producers and distributors of obscene material often use multiple corporate entities as a means of concealing the true ownership or nature of their businesses.[253] They typically create layers of corporations to insulate their identities from a claim of actual ownership. Separate corporations may be formed to perform the different operations of a single bookstore. Separate corporations may be formed to control the sale of magazines, operate the bookstore, construct peep show booths, collect coins from peep show booths, and to repair the same booths.[254]
The articles of incorporation and other documents may list as incorporators, shareholders or officers the names of mere employees or even strangers. The names may be on the documents without the named person's knowledge or consent.[255] Some producers and distributors may rely on law enforcement knowledge of such practices to argue they are not the true owners even though listed as such.
Law enforcement officers face difficult burdens in identifying and bringing charges against or collecting taxes from the true owners who hide behind these shell corporations. Often they can locate only low level employees who may be unfamiliar with the identity of the persons who actually own or control the operation of the business.[256]
State laws governing the formation of corporations should be enforced fully to permit the identification of those persons managing and financing the obscenity industry. Corporate charters should be revoked when fraud is proven and the assets seized when permitted.
RECOMMENDATION 24:
State and Local prosecutors should enforce the alcoholic beverage control laws
that prohibit obscenity on licensed premises.
Establishments that display or sell obscene materials may also be licensed by the state or locality to sell alcoholic beverages. State and local alcoholic beverage control laws often prohibit obscene material and obscene performances on the licensed premises. Enforcement of these laws or ordinances in the courts or through administrative procedures is another tool at the disposal of law enforcement agents to remove pornography from theatres, restaurants and other establishments.
These enforcement measures should be implemented with recognition of the current social and behavioral science conclusions with respect to various types of materials. Law enforcement officers may consider the potential harm which may be attributable to certain types of materials when establishing criteria for enforcement of this aspect of alcoholic beverage laws.
A finding of guilt under the alcoholic beverage control laws could bring suspension or revocation of an establishment's liquor license. The potential of such a loss of revenue to an individual or business would have a significant deterrent effect.
RECOMMENDATION 25:
Government attorneys, including State and Local prosecutors, should enforce all
legal remedies authorized by statute.
See, Discussions of nuisance laws, zoning, anti-display statutes, alcoholic beverage control laws.
RECOMMENDATION 26:
Federal law enforcement agencies should conduct active and thorough
investigations of all significant violations of the obscenity laws with
interstate dimensions.
As recommended elsewhere in this report, the United States Attorneys should begin prosecuting appropriate violations of the federal obscenity laws without further delay.[257] The efforts of federal prosecutors must be based upon and complemented by active and thorough investigations of all violations of the obscenity laws by the federal law enforcement agencies.
The Federal Bureau of Investigation (FBI) derives its investigative jurisdiction in this area from the federal statutes covering obscenity and child pornography.[258] From the beginning of fiscal year 1978 through the second quarter of Fiscal Year 1985, the FBI has conducted 2,484 investigations involving interstate transportation of obscene materials and violations involving child pornography.[259] These investigations have resulted in 137 indictments and 118 convictions. Of these figures forty-five indictments and fourteen convictions were the result of the single investigation known as MIPORN.[260] The FBI has given its highest priority to cases involving organized crime.[261] The Federal Bureau of Investigation recently conducted a two year investigation which resulted in the case United States v. Guglielmi.[262] This case grew out of an approximately two-year investigation by the Federal Bureau of Investigation regarding obscene materials, particularly bestiality films shipped in interstate commerce into the Western District of North Carolina. The investigation, which first centered around undercover purchases from a relatively small street-corner outlet for "sexual aids" and pornographic magazines, films and pockets books, expanded after a successful search of those premises and interview of the personnel, to a cautious undercover investigation involving telephone calls to, and meetings with, the defendant himself. The introduction to the defendant was made by a former "adult" bookstore operator, and various orders of bestiality films and other materials were followed by a successful search of Central Sales, the defendant's multistory Baltimore warehouse for the shipment of obscene materials. The Grand jury's eleven-count indictment for violations of Title 18, U.S. Code, Sections 2, 371, 1462 and 1465, followed on June 12, 1985.
The trial lasted approximately four days, during which a number of bestiality films were displayed, in titles of which indicated the animals portrayed. The defense called a number of "experts" who were experienced defense specialists in pornography cases, several of whom were affiliated with the Institute for the Advanced Study of Human Sexuality, a San Francisco, California, group that includes among its classes a course on testifying for the defense in pornography cases. Information provided by other prosecutors made possible the effective crossexamination of these witnesses. The defense "experts" testified that the materials did not appeal to the prurient interest of the average citizen in the Western District of North Carolina, since the average person does not have such an interest.
The trial in general was characterized by numerous voir dire examinations and arguments on a number of points of law and fact. Pre-trial motions had also been lengthy and had included a Motion of Recuse, by which the defendant sought to have the trial judge, the Honorable Robert D. Potter, to disqualify himself. This motion was denied, and defendant filed a petition for writ of mandamus to the Fourth Circuit, which was also denied.
The jury was similarly unpersuaded by defense arguments and found the defendant guilty of all eleven counts in the indictment. Judge Potter sentenced the defendant to a total of twenty-five years incarceration and a $35,000 fine. The case is now under appeal.
The Director of the FBI told this Commission that while the Bureau does not "downgrade" the seriousness of the problem of obscenity violations involving adult material, "it is simply the implication of our resources."[263] He added that "it will probably mean that there will be less pro-active initiatives on our part" in adult cases that do not involve organized crime.[264]
This Commission received evidence that two of the FBI field offices in one of the nation's most active obscenity distribution centers, New York City, will not investigate cases involving obscene material.[265]
The Federal Bureau of Investigation is encouraged to seriously step up its investigative efforts relating to obscenity law violations.
The jurisdiction of the United States Customs Services extends to all materials entering the United States by land, sea or air.[266] Prior to the signing of the Child Protection Act of 1984 (18 U.S.C. SS2251-2255), the United States Customs Service had received direction from Commissioner William Von Raab to step up efforts to intercept obscene material. Special emphasis was placed on material depicting children in sexual explicit conduct. The Customs Service was responsible for six successful child pornography prosecutions in fiscal year 1983. Five of the convictions were violations various state laws and the sixth was a violation Federal Law, 18 U.S.C. §1462. With the signing of the Child Protection Act, the figures changed to fourteen federal convictions and twenty state convictions in 1984, and nineteen federal and ten state convictions as of August 1985.
Until the early part of 1985, the Customs Service's method for initiating child pornography investigations was fairly static. A mail parcel would be examined at one of the twenty-two customs foreign mail facilities. The package, once discovered to contain child pornography, would be forwarded to the Office of Investigations in the District concerned. The case agent would then match the name and/or address of the addressee with other seizures. A background investigation on the addressee would be conducted in order to show other criteria as outlined in the United States Attorneys Manual. Based on the results of the investigation and a controlled delivery of the seized parcel, a search warrant would be obtained and executed on the address in question. In the majority of the search warrants executed, the suspect would be found to have a large collection of imported and home-made child pornography. Additionally, more and more evidence was found to link child molestation to the importers of the child pornography.[267]
By February 1985, compilations of seizure lists were being made and disseminated throughout the service. Most field offices had assigned at least one, and sometimes several agents to investigate child pornography cases on an exclusive or collateral basis. Foreign mail facilities were targeting the traditional "source" countries of child pornography: Denmark, the Netherlands, and Sweden.
In January 1985, a special delegation representing the United States Customs Service, the United States Postal Inspection Service and the Federal Bureau of Investigation travelled to Europe. Their purpose was to address the issue of foreign cooperative efforts in fighting the child pornography industry.
As a result of these critical contacts, interagency cooperation is expanding. Investigators are beginning to look for the major distributors, producers, and consumers. Increased cooperation with foreign governments had led to two successful undercover operations in 1985. As a result of the increased foreign cooperation, new methods of smuggling, as well as additional source countries and distributors are being identified. Examples include: Transshipment routes through England, France, East Germany, and Southeast Asian countries heretofore not considered source countries, such as France, Italy, Japan, Thailand and the Philippines; and more sophisticated packaging techniques and profiles.
New methods of conducting child pornography investigations are being developed and attempted. These include the adaptation of methods used in narcotics and currency investigations, as well as methods used in the investigation of criminal sex offenses. Some bold and innovative undercover operations have been suggested and implemented.
The Customs Service is actively pursuing the enhancement of existing resources and the development of programs to meet the changing needs of the enforcement effort. It is only by such a process of enhancement and development that the Customs Service or any other agency can hope to compete with the ingenuity of those who sexually exploit children.
Future efforts in pornography enforcement will center around the activities of the Child Pornography and Protection Unit (CPPU). Criminal investigations that focus on sexual exploitations which involve other customs violations and other forms of obscene material have and are being developed. Such investigations involve customs fraud, unreported currency transactions, and general smuggling. Currently, all obscene material encountered by the customs foreign mail facilities are processed for forfeiture under civil statute. If at some future time the Customs Service becomes involved in criminal investigation of obscene violations, the data already available through this procedure will provide invaluable investigative leads.
Customs examines all parcels which are suspected of containing contraband.[268] With respect to obscenity law cases particular attention is given to parcels from Denmark, Sweden and the Netherlands. These countries have traditionally been the source of child pornography entering the United States.[269] In 1984, Customs seized forty-three hundred parcels which contained suspected obscene materials.[270] Child pornography was found in 50 percent of those.[271] The other items seized were largely adult materials including some depicting bestiality, urination and defecation.[272]
When a Customs agent seizes obscene material, a notice is sent to the intended recipient of the material. The notice permits the individual to sign a release and forfeit the material to the government. The material is subsequently destroyed and generally no one is prosecuted for an obscenity violation.[273] If the material is child pornography, a controlled delivery is made to the recipient and a search warrant is subsequently executed on the recipient's premises, often leading to the arrest of that individual.[274] According to one Customs agent assigned to Chicago, "countless thousands" of obscenity cases involving obscene materials have not been presented to the United States Attorney because based upon their experience, agents perceive that these cases will not be prosecuted.[275]
The United States Postal Inspection Service has investigative responsibility over all federal criminal violations involving the mails including the use of the mails to distribute obscenity.[276] Investigations are initiated based on citizen complaints, advertisements in sexually oriented publications and correspondence initiated by a postal inspector.[277] Postal inspectors are responsible for protecting the mails and postal facilities from criminal attack; for protecting the American public from being victimized by fraudulent schemes where use of the mails is an essential part of the scheme; and for keeping postal management informed of the conditions and needs of the Postal Service.
Postal crimes fall within two broad categories: Criminal acts against the Postal Service, such as, armed robberies, burglaries or theft of mail and misuse of the Postal System such as the mailing of bombs, use of the mails to defraud the public and the use of the mails to distribute pornography. The Inspection Service is also responsible for the internal audit of Postal Service operations and for the security of postal facilities and employees. In addition, the Inspection Service is responsible for investigating violations of a number of civil statutes relating to the use of the mails including the Postal False Representations Statute.
Title 18, United States Code, Section 1461, enacted in 1865, is the statute by which the Postal Inspection Service restricts use of the mails to distribute obscene matter. The statute provides for criminal penalties of up to five years in prison, a $5,000 fine, or both, for using the mails to transmit any "obscene lewd lascivious indecent filthy or vile article, matter, thing, device or substance."
Title 18, United States Code, Sections 2251-2255, the Protection of Children Against Sexual Exploitation Act of 1977 and the Child Protection Act of 1984 are the statutes by which the Postal Inspection Service investigates trafficking in child pornography through the mails. The statute provides for criminal penalties of up to ten years in prison and/or a $100,000 fine. The offender's property used in or derived from the crime is subject to criminal and civil forfeiture under this section. Most states have laws dealing with the sale, distribution and/or possession of obscenity. When dual jurisdiction is involved, Inspectors assist local authorities in the enforcement of their laws. On the international level, the Inspection Service cooperates with the Department of State, the United States Customs Service, Interpol and certain foreign postal authorities to stem the flow of obscene material and child pornography into or from the domestic sources.
Congress has also enacted three civil statutes designed to curb the mailing of sexually oriented material. Title 39, United States Code, Section 3006, allowed the Postal Service to refuse to deliver mail in response to advertising which sought to obtain money through the mailing of obscene matter.
Sections 3008-3011, allows postal customers to obtain an order prohibiting any future mailings by anyone who mails them an advertisement which the addressee considers sexually provocative. Title 39 United States Code, authorizes the Postal Service to maintain a list of persons who do not wish to receive sexually oriented advertising and prohibits the mailing of such advertising to persons who have asked to have their names listed. Companion criminal statutes, 18 U.S.C. SS1735-1737, authorize the courts to penalize persons who mail sexually oriented advertising and prohibits the mailing of such advertising to the persons whose names are on the list.
The Department of justice has establishment enforcement priorities with respect to the obscenity statutes and the Postal Inspection Service's investigative activities are determined accordingly. The Inspection Service has currently established the following priorities:
These priorities, supplemented by guidelines Inspectors receive from the Department of justice in individual cases, form the basis of the Postal Service investigative program. In 1985 the Postal Inspection Service reported activity in the following areas:
Nationwide
Prohibited Mailings
Like other federal agents, postal inspectors present evidence of violations of the law to the appropriate United States Attorney.[278] In fiscal year 1985 the Postal Inspection Service conducted 183 pornography-related investigations which resulted in 179 arrests and 143 convictions.[279] These investigations were principally child pornography cases.[280]
The Postal Inspection Service presents very few cases involving obscene material for prosecution because they have been told by employees of the justice Department that these cases are "not prosecutable."[281] The Chief Postal Inspector has confirmed that "[i)nvestigations in adult pornography cases have declined in recent years...."[282]
These three law enforcement agencies are capable of making significant contributions to the investigation and prosecution of violations of the federal obscenity laws. The FBI's efforts in the MIPORN investigation of organized crime figures involved in obscenity distribution resulted in fourteen convictions as of February 1986.[283] The FBI should also include obscenity and related crimes among its Uniform Crime Statistics report. Similarly the Customs Service and the Postal Inspection Service have had much success in their child pornography investigations.[284] Working with dedicated prosecutors committed to enforcing the obscenity laws, these agencies can have an even greater impact on the reduction of pornography in the United States. They must commit the manpower and resources necessary to fulfill the task and conduct active and thorough investigations of all violations of the federal obscenity laws.
RECOMMENDATION 27:
The Internal Revenue Service should aggressively investigate violations of the
tax laws committed by producers and distributors of obscene material.
The Chief of the Internal Revenue Service Criminal Division has compared the production and distribution of obscene material to drug trafficking since both generate staggering profits on an international scale but with only minimal tax reporting.[285] Authorities also project that millions of dollars in profits from obscenity may be escaping taxation through use of international banking channe1s.[286]
Allen I. Goelman, a Los Angeles associate of Reuben Sturnman, pleaded guilty to tax evasion charges in November of 1985. Goelman concealed personal earnings of more than $270,000 over a four year period when he served as head of "retail operations" for obscenity distribution. The IRS has recently obtained confidential records from banks in Switzerland and Holland in an attempt to locate more hidden obscenity-derived profits.[287]
The frequent use of "cash only" transactions in the pornography industry provides other opportunities for tax evasion.[288] Adult bookstores often fail to report lucrative income earned from cash operated peep shows.[289]
In March of 1986, an IRS official said the current immoral investigation involving obscenity distributors are not an isolated incident and that more income tax prosecutions may be forthcoming.[290] The same official added, "With the unsettled nature of laws defining obscenity, often times the government is forced to deal with people of this type through the tax laws, and in a business this lucrative, if there's a viable tax interest we're going after them."[291] The Commission strongly encourages the IRS to aggressively investigate violations of the tax laws committed by producers and distributors of obscene materials.
RECOMMENDATION 28
State and Local law enforcement agencies should provide the most thorough and
up-to-date training for investigators involved in enforcing the obscenity laws.
To ensure that officers assigned to enforce these laws possess the requisite skill, comprehensive training programs should be established in all jurisdictions. This training should include instruction on investigative techniques, prosecution, victim trauma and the particular stress officers must deal with in obscenity law investigations.
Law enforcement officers involved in the investigation of obscenity violations must be thoroughly acquainted with constitutional law including First and Fourth Amendment implications. The legal and procedural aspects are complex and always subject to change. Included in this training should be a working familiarity with the local community standards. This knowledge should serve as the basis for evaluating cases for prosecution. State and local law enforcement officers should be advised continually of judicial interpretations in the obscenity law area.
Law enforcement officers should receive comprehensive training to avoid errors in judgment which can result in civil rights violations as well as potential civil liability for governmental entities and employees. This training should enable the law enforcement officers to perform their duty within constitutional bounds.
Law enforcement officers should be trained to use regional and national information sources in their investigations. The training should emphasize the need to exercise basic investigative techniques and focus on the similarities and patterns in investigation of obscenity law violations and other investigations.
Investigators will often encounter victims who have been abused or traumatized. A component of the training program should focus on methods to deal with these individuals compassionately and to direct them to the appropriate support services. Training in all areas should be provided by experienced investigators to members of their own department and supplemented with participation by prosecutors and investigators from other law enforcement authorities who specialize in this area.
The training should address the inordinate amount of stress these investigators must endure. The psychological and emotional pressure the officers face often results from prolonged undercover investigations dealing with the material on a long term basis and a lack of peer support. One police officer told the Commission:
... those people who seem to have involved themselves in investigations of these matters generally get ostracized by their own peers. Most police officers make a fool out of those investigators that are charged with investigations of these matters. Macho-1 don't know what to say.
I found most of them (obscenity investigators) to be extremely professional, dedicated policemen with a lot of integrity. It's unfortunate that they are characterized as such in their peer group, because they have a lot of integrity. You investigate other types of crimes, gambling and narcotics, you find the seedier aspects of law enforcement in terms of corruption, but for the most part these people have a lot of personal integrity, and surprisingly they have a lot of regard for first amendments rights. That would be a surprise to many people, but they respect it.[292]
It is as important to train officers in methods to deal with stress and peer support as it is in basic investigative techniques.
RECOMMENDATION 29:
State and local law enforcement agencies should allocate sufficient personnel to
conduct intensive and thorough investigations of any violations of the obscenity
laws.
State and local law enforcement agencies in many regions have devoted insufficient manpower to investigation and enforcement of the obscenity laws. This has led to reactive law enforcement where police may respond to citizen complaints made about obscene materials but do not otherwise initiate investigations.[293]
The Los Angeles Police Department has sixty-seven hundred officers, but only eight are assigned to the pornography unit.[294] Los Angeles is the center of production of obscene material in the United States.[295] The Chicago Police Department has twelve thousand officers, but only two are assigned to their obscene matter unit.[296] The Buffalo, New York, police department has one thousand officers with one officer assigned to obscenity law violations.[297] In Chicago, the unit investigating obscenity violations has requested additional manpower but such requests have been denied by higher authorities within their police departments.[298]
Intensive and thorough investigations of possible obscenity violations cannot be conducted unless sufficient manpower is devoted to the task. The need for additional manpower is even more critical in those jurisdictions with large scale pornography operations where investigations are more complex and time consuming.
Chiefs of police and supervisory personnel must also be responsive to requests for additional manpower should the obscenity problem warrant more intensive investigation. These responses may take the form of additional investigative personnel on a temporary or permanent basis.[299] Supervisory personnel also should recognize the complexity of this assignment and be receptive to requests for frequent in-service training programs. Once the obscenity problem has been effectively addressed law enforcement agencies should need only minimal manpower to maintain control.
RECOMMENDATION 30:
State and Local law enforcement officers should take an active role in the law
enforcement coordinating committees.
See, The discussion in the Recommendations for the United States Department of justice in this Chapter.
RECOMMENDATION 31:
State and Local revenue authorities must insure taxes are collected from
businesses dealing in obscene materials.
"Adults Only" pornographic outlets often maintain separate business systems for accounting purposes. These operations may be in the form of a "front room" and a "back room."[300] The front room is usually where books, magazines, films, videos, and sexual devices are sold. The individual running the business usually keeps fairly accurate financial records for this part of the operation because revenues from it are used to pay rent, utilities, and employees' wages as well as purchase merchandise .[301]
The "back room" usually contains peep show booths or video machines which earn substantial profits-often twice that which the "front room" earns. These "back room" earnings are typically excluded from any financial records of the business and can easily go untaxed.[302] While this Commission does not condone the operation of pornography businesses it urges state and local revenue authorities to strictly scrutinize the reporting methods of these businesses and insure that the proper income is reported and subject to taxation.
RECOMMENDATION 32:
State and Local public health authorities should investigate conditions within
"Adults Only" Pornographic outlets and arcades and enforce the laws against any
health violations found on those premises.
Testimony before the Commission has revealed that sexual acts often occur in the peep booths located in many "Adults Only" pornographic outlets and arcades.[303] Acts such as fellatio, sodomy, and masturbation are common .[304] Some of these establishments have "glory holes" drilled through the walls of the peep booths to permit individuals to engage in anonymous sex with the occupant of the adjoining booth .[305] Upon examination of the interior of these booths, police often find evidence of urine, human feces and semen.[306]
The public health risks posed by this anonymous sexual activity are quite obvious. The public health department in Houston, Texas, reported 214 cases of syphilis and gonorrhea during three months of 1985.[307] Of those infected individuals, 10.7 percent reported they had performed sexual acts in "Adult Only" pornographic outlets.[308] Because of the anonymous nature of these sexual encounters, public health officials find it impossible to trace the origin of the disease.[309] Concern about the spread of Acquired Immune Deficiency Syndrome (AIDS) has made this situation even more significant. Similar risks to public health are posed by massage parlors, brothels, and establishments promoting "Piercing"[310] and other sado-masochistic sexual activities.
While this Commission does not condone or support the existence of these businesses dealing in obscene materials, it urges state and local public health officials to inspect the premises of adult bookstores and arcades in their jurisdictions and vigorously enforce the law against all public health violations found on those premises.
RECOMMENDATION 33:
Judges should impose substantial periods of incarceration for persons who are
repeatedly convicted of obscenity law violations and when appropriate should
order payment of restitution to identified victims as part of the sentence.
The Commission has been apprised repeatedly of the minimal periods of incarceration and fines which have been imposed on persons who frequently violate obscenity laws.[311] In cases involving significant violations of the obscenity laws or repeat offenders, only a substantial period of incarceration will provide a deterrent effect.[312]
Judges can also enhance basic law enforcement efforts when they impose substantial periods of incarceration for these offenses. Law enforcement officers, prosecutors and society in general view the sentences imposed as a statement of the community attitude toward the crime. When minimal sentences are given, the significance of the crime is diminished.
Recidivist obscenity law violators should be viewed the same as recidivist violators of other criminal laws. Judges also should be apprised of the nature of the materials involved and the offender's affiliation with organized crime, if any. These factors must be considered before a judge can appropriately sentence an offender.
Modern technology pervades virtually every aspect of daily life and it should come as no surprise that these advances are used in the dissemination of pornography. Two of these technological advances, Dial-A-Porn and cable television, have brought with them some very complex questions of law and public policy. In some instances, the course in resolving the issues remains largely uncharted. A complete discussion of pornography in the United States today cannot be addressed without a careful examination of these technologies particularly with reference to the role of the Federal Communications Commission in regulating them.
RECOMMENDATION 34:
The Federal Communications Commission should use its full regulatory powers and
impose appropriate sanctions against providers of obscene Dial-A-Porn telephone
services.
The term "Dial-A-Porn" has been applied to describe two types of obscene statements made over the telephone as a part of a commercial transaction. In the first instance, the caller dials a number and talks to an individual who makes sexual remarks in response to the stated desires of the particular caller.[313]
The caller pays a per minute rate and is billed on his or her credit card.[314] The conversation can last up to forty-five minutes.
The second type of transaction involves placing a call to a number with the "976" prefix. These numbers are part of the Mass Announcement Network Service (MANS) and provide the caller with a pre-recorded message similar to those giving the time of day or weather.[315] The message is sexually explicit and the caller is charged on his monthly telephone statement.[316] The provider of the message receives a payment from telephone company revenues calculated according to the local tariff. The telephone company receives the remainder.[317] In some cities, for example, the cost to the caller is two dollars with $1.45 going to the provider of the message and fifty-five cents to the telephone company.[318]
These Dial-A-Porn recordings include graphic descriptions, complete with sound effects, of lesbian and homosexual acts, sodomy, rape, incest, excretion, bestiality, sadomasochism, and other unlawful, violent or dangerous sexual acts involving adults and children.[319] In May of 1983, 800,000 calls a day were placed to Dial-A-Porn numbers in New York.[320] Approximately 180,000,000 calls were made to the same numbers in the year ending in February 1984.[321]
Carlin Communications, a leading provider of Dial-A-Porn services, earned $3,600,000 in 1984.[322] Pacific Bell reports that sexually explicit messages represent twenty-seven percent of all "976" calls so far in 1985.[323] Telephone companies explain the existence of "976" service as an opportunity to provide subscribers with a wide range of information as well as a source of revenue to keep telephone rates low.[324] The content of the telephone messages is solely within the control of the provider. New Jersey Bell, however, has reserved the right to review program content under their contract with providers.[325] The easy accessibility to Dial-A-Porn messages has given rise to a number of problems. Initially it should be noted that the telephone companies have issued numbers, upon the request of the providers, such as 976-FOXX, 976-4LUV, and 976-LUST.[326] Dial-A-Porn advertising is often misleading in that it refers to "free phone sex" when, in fact, the caller is billed either on his or her credit card or is charged as part of their monthly telephone statement.[327]
Since Dial-A-Porn numbers are openly advertised in pornographic magazines, newsstand racks, in convenience grocery stores, on public billboards and other readily available publications they are often discovered and used by minors unbeknownst to their parents. The telephone company may elect to disconnect the customer's service if they do not pay the toll charges.[328] Finally, there is concern over the long-term effects of Dial-A-Porn recordings on children who listen to them and may attempt to model their behavior after them. This is especially worrisome when descriptions of unlawful, violent and incestuous acts are associated with sexual arousal as in many of the Dial-A-Porn messages.
Two years ago, the Congress enacted legislation amending section 223 of the Communications Act of 1934.[329] This enactment prohibited the use of the telephone to make obscene or indecent communications for commercial purposes to anyone under eighteen years of age except where in compliance with regulations issued by the Federal Communications Commission. The FCC promulgated regulations making it an exception for the provider of a recorded message if the message was made available only between the hours of 9:00 p.m. and 8:00 a.m. eastern standard time or if the caller made prepayment by credit card in the case of a "live" message.[330] Carlin Communications challenged the FCC regulations.
On review, the United States Court of Appeals for the Second Circuit found the regulations were invalid.[331] The court found that the government had a compelling interest in protecting minors from salacious material, but that the FCC regulations were not well tailored to meet their objectives, which could be achieved by less restrictive alternatives.[332] In dicta, the court said the FCC should have given more serious consideration to two other options such as "blocking" and access codes. Through "blocking" a subscriber can have access to all "976" numbers blocked from his telephone. Access codes could be issued to subscribers over eighteen who would have to dial the code in order to receive the sexually explicit message.[333]
On October 16, 1985, the FCC announced new regulations governing Dial-A-Porn.[334] Under the new regulations, Dial-A-Porn services must require either an authorized access or identification code or they must obtain prepayment by credit card before transmission of a sexually explicit message.[335]
Carlin challenged the new regulations, and on April 11, 1986, the Court of Appeals granted their petition and set aside the regulations as applied to Carlin.[336] The FCC now finds itself in a dilemma, since the latest set of regulations have been found unduly restrictive as applied to Carlin in New York, but possibly sustainable elsewhere.[337]
The Court of Appeals relied on statements from New York Telephone that access or identification codes are not technologically feasible in NYTS network,[338] and found that "the record does not support the FCC's conclusion that the access code requirement is the least restrictive means to regulate Dial-A-Porn. . . ."[339] The Court again referred to "blocking" as a less restrictive means of regulating Dial-A-Porn.[340] Blocking devices installed on the telephone customers' own terminal equipment could be used to block access to one or more pre-selected telephone numbers.[341] The court also suggested that the FCC should have considered the feasibility of passing along the cost of customer premises blocking equipment to the providers of Dial-A-Porn and/or the telephone companies.[342]
The latest decision by the Second Circuit leaves the state of the law regarding dial-a-porn even more uncertain. The two attempts by the FCC to promulgate regulations in accordance with the federal statute have failed. The Court of Appeals found earlier that limitations on the hours that Dial-A-Porn messages may be offered were not tailored enough to regulate the problem.[343] Now the court has ruled that access codes are unduly restrictive as applied to Carlin in New York, but may be permissible elsewhere.[344] The "blocking" option advanced by the court has serious practical limitations. Blocking may not be available to all telephone customers.[345] Those who obtain the service would either lose access to all "976" numbers[346] or have to pre-select which numbers they wanted blocked.[347] Few parents would have sufficient knowledge of the multitude of Dial-A-Porn numbers to be able to preselect them and prevent their children from calling them by use of a blocking device. And minors would still be free to make the calls from telephones not equipped with blocking devices.
The provision of the federal statute permitting Dial-A-Porn messages to be provided in accordance with FCC regulations[348] has proven unworkable in addition to providing a "safe harbor" provision for Dial-A-Porn merchants. Congress should enact legislation that simply prohibits the transmission of obscene material through the telephone or similar common carrier.[349]
The regulations that have been invalidated by the Second Circuit were based on the faulty premise that obscene telephone communications are entitled to some measure of protection so long as they occur between or among "consenting adults". The United States Supreme Court rejected this basic argument in Paris Adult Theatre I v. Slaton.[350] In Slaton, a motion picture theatre was convicted for showing obscene films.[351]
Its defense was that no one under twentyone years of age was admitted and that showing the films to consenting adults was protected under the right to privacy.[352] The Court affirmed the conviction, with Chief Justice Burger writing for the majority.
We categorically disapprove the theory, apparently adopted by the trial judge, that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only. This holding was properly rejected by the Georgia supreme court. 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, see Miller v. California, ante, at 18-20, Stanley v. Georgia, 394 U.S. at 567, Redrup v. New York, 386 U.S. 767, 769 (1967), this Court has never declared these to be the only legitimate state interests permitting regulation of obscene material.[353]
The Chief justice went on to cite other legitimate interests which permitted the regulation of obscene material including maintenance of the "quality of life and the total community environment." [354] The Court also cited the statement of former Chief Justice Earl Warren in Jacobellis v. Ohio,[355] that, "there is a right of the Nation and the States to maintain a decent society."[356]
The telephone is also uniquely accessible to children. Children have easy and often unsupervised access to telephones in their homes and learn to use the telephone at an astonishingly early age. A child need only dial seven numbers to reach a recorded message. Additionally, Dial-A-Porn numbers are openly published and advertised in publications which are sold in racks on the public streets and available to purchasers of any age group. Dial-A-Porn numbers may also be passed along from one child to another.
As a final consideration, the telephone industry, like broadcasting industry, is closely regulated. As a condition of its continued existence a carrier must act in the public interest. The FCC, whose entire regulatory scheme is based on serving the public interest could act to protect these same interests against obscene communications over the telephone if it chose to do so. The time is long overdue for the FCC to exercise its full regulatory powers with respect to this lucrative brand of obscenity.
RECOMMENDATION 35:
The Federal Communications Commission should use its full regulatory powers and
impose appropriate sanctions against cable and satellite television programmers
who transmit obscene programs.
The growth of the cable television industry over the last few years has been remarkable. Approximately forty percent of all homes in the country now have access to cable or satellite television, and 250,000 homes are being connected with the services every month.[357] There are currently 6,500 cable television systems serving forty million households.[358]
The concerns over the content of some of cable television programming have increased as the cable industry has grown. Feature film presentations have been one of cable's strongest drawing cards and an increasing number of those films shown on cable fall under the MPAA rating "R".[359] These films depict nudity, sexual themes, simulated sex, graphic violence, or offensive language.[360] While a minor under the age of seventeen cannot be admitted into a theatre to view an "R" rated film without an accompanying parent or guardian, the same films are available to a viewer of any age over cable. Some of the premium channels offer movies that are unrated by the MPAA and go far beyond those in the "R" category and would be generally considered as "X-rated".
These films are sometimes the same films shown in pornography movie theatres and include films which federal and state courts have found to be obscene.[361] For example, the movie, "The Opening of Misty Beethoven" appeared over satellite television in Phoenix, Arizona, in 1981.[362] This film was previously found to be legally obscene by the Supreme Court of Alabama.[363]
These more sexually explicit movies earn a much larger profit for the cable channel.[364] It is less expensive for the cable channel to offer these films than it is for them to acquire and show better known but non-sexually explicit feature films.
The cable industry minimizes any problems associated with sexually explicit cable programs. Brenda Fox of the National Cable Television Association (NCTA) testified in Los Angeles that there are only 700,000 subscribers to the "adult" programming offered on cable.[365] Ms.Fox also testified that the industry has taken what it regards as adequate steps to protect minors from viewing sexually explicit programs. These precautions include lockboxes so parents can control channel selection, program guides and notices, transmission of "adult" programs through scrambled signals and the restriction of this programming to later evening hours.[366] The number of hours of sexually explicit programming, however, continues to escalate. There is no reason that a cable television programmer or operator could not be prosecuted under existing federal and state obscenity laws by the United States Attorneys and State or local prosecutors for transmitting a program that meets the Miller test for obscenity.
As the Supreme Court held in Kaplan v. California, "[W]hen the Court declared that obscenity is not a form of expression protected by the First Amendment, no distinction was made as to the medium of the expression."[367]
In HBO, Inc. v. Wilkinson, the United States District Court in Utah found the Miller standard applicable to cable television. While a Miami, Florida, ordinance prohibiting indecent cable telecasts was found to be unconstitutional, the portion of the ordinance that proscribed obscene programming was not challenged.[368]
The Cable Communications Policy Act of 1984[369] attempts to provide another avenue for the prosecution of obscenity shown over cable television. The Act provides, in part, that, "Whoever transmits over any cable system any matter which is obscene or otherwise unprotected by the Constitution of the United States shall be fined not more than $10,000 or imprisoned not more than 2 years, or both."[370]
This portion of the section may be in conflict with two other sections of the Act governing editorial control of programming by cable operators. Sections 531(e) of Title 47 provides that:
Subject to section 544(d) of this title, a cable operator shall not exercise any editorial control over any public, educational, or governmental use of channel capacity provided pursuant to this section.
Section 544(d) provides in part:
Section 544(d) seems to contemplate the operator providing obscene programming while Section 559 makes it a crime to do so.[371]
Proposed legislation should be drafted to enable United States Attorneys to prosecute violators under the criminal code and alleviate the possible conflict under the Cable Communications Policy Act.
The FCC has shown no interest in taking action regarding the contents of cable programming. Thomas Herwitz, legal assistant to FCC Chairman Mark Fowler, stated the Commission's views at the Los Angeles hearing regarding cable programming. The position the FCC has taken has been to advocate regulation for cable similar to that for the print medium.[372]
The FCC maintains that the cable subscription services can be controlled adequately within the home to assure that minors do not have access. The FCC position is that since the individual can act as his or her own gatekeeper and preclude those signals not desired to be watched, the government has no compelling interest in further intrusion.[373]
The posture adopted by the FCC has enabled cable television to occupy a status afforded no other medium. The policy considerations that support government regulation of broadcasting to serve the public interest also apply to government regulation of cable television. As the United States Court of Appeals for the District of Columbia has ruled,
[We] do require that at a minimum the [FCC], in developing its cable television regulations, demonstrate that the objectives to be achieved of regulating cable television are also objectives for which the commission could legitimately regulate the broadcast media.