Mr. CONYERS. A final question. Is it correct, Mr. Keeney, to observe that the obscenity test that is derived from Miller would apply and does apply not only to the existing Federal laws but would apply to any law that we have under consideration about pornography and young people?

Mr. KEENEY. In as far as children are concerned?

Mr. CONYERS. Yes.

Mr. KEENEY. Well, I think that is the real problem, Mr. Conyers, and that is what I have been trying to say here, is that if we can view this, if we can view child abuse as child abuse and not as part of any literary effort, then we have got a much simpler problem, but I am not certain that the courts will allow us to do it. I am afraid that, well, we have to recognize the fact that the courts may read into any child abuse legislation the first amendment standards and would apply the Miller test.

Mr. CONYERS. Now, the one thing that gets us part way around that is that the obvious hardcore pornography that we are talking about in terms of the magazines and the films clearly have no redeeming value whatsoever. The closer question would come where those who would attempt to anticipate this kind of question would start trying to simulate some redeeming social or scientific interest in the question. Would you agree with that?

Mr. KEENEY. Yes. The clear hardcore material would be covered under the proposed legislation, it would also be covered under the existing obscenity laws, except that the existing obscenities laws could be amended so that we would more clearly bring within their gambit the producers and permitters and whoever else is involved in the total production and dissemination of the material.

We do have a grab bag there, the people who are sponsors for the production of the film and its filming and so forth turn it over to somebody else for distribution. Use of interstate commerce facilities is not in connection with the orginal effort-thus we have a prosecutive problem. That is an area that could be addressed.

Mr. CONYERS. Very good. I am grateful to you for your testimony and your prepared statement. I would like to suggest to my colleagues who are chairing these hearings that perhaps both our subcommittees would want to in the relatively near future meet together without witnesses to go over these legal considerations that have been raised here and will probably continue to be raised with other witnesses.

Mr. BRADEMAS. If the gentleman would yield, I think that is a sensible suggestion because I think we all want to try to frame a bill that will respond to the problem and not run into constitutional difficulties and write the best bill possible. So I would certainly welcome that. I am sure members of our subcommittee would and I am glad to hear you feel members of your subcommittee would.

Mr. KEENEY. We are at the service of the committees.

Mr. BRADEMAS. I think it would be helpful also, Mr. Conyers, if we could get the Justice Department at some point into helping us on this matter so that we can respond to some of the concerns that have been voiced here today.

Mr. MILLER. If I might ask one question. Is it your testimony that there seems to be two avenues-we keep talking about approaching

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the problem-is to go the child abuse avenue and the other some type of obscenity standard? If you were to go to the child abuse route you may find the Miller test folded in on the question of what you are doing to peoples' first amendment rights.

Mr. KEENEY. Exactly.

Mr. MILLER. And when we talk about this as it is related to children, we talk about as if that is as of today a distinctly separate clause, the fact that you use children in a magazine or photograph or movies show makes that unacceptable to the community. Let us say in the Miller standard on its face that is not necessarily so, would it be? Mr. KEENEY. I am not sure I understand the question.

Mr. MILLER. The Miller standard, as I understand it, provides what a community finds acceptable and nonacceptable.

Mr. KEENEY. Yes, sir.

Mr. MILLER. The simple fact that you have young children depicted would not lessen that standard necessarily in terms of your burden of proof, would it? We would assume as laymen it would. The question is legally does it lessen your burden of proof?

Mr. KEENEY. I think the Miller test would-is a single test for both adults and children but let us be honest and candid. A jury, a judge, a Supreme Court, where children are involved, are going to take a little different view of it and I think we do have a little more leeway when we are dealing with children..

Mr. MILLER. Then the reason I raised the situation, we heard testimony in Los Angeles of a publisher who publishes a magazine which depicts young children, which it is his claim this is done for the purpose of the nudist community, that they have been publishing this magazine, a very small publication, for 25 or 30 years. Under this legislation, it seems to me on its face you have a clear violation, but under the Miller test, not necessarily so. Would that be correct?

Mr. KEENEY. I wasn't quite clear as to your example. It was a picture of just nude children?

Mr. MILLER. Just nude children in a nudist camp setting. He claims it is for people who enjoy this mode of life.

Mr. KEENEY. If we are dealing with nudity and nothing

Mr. MILLER. Pardon?

Mr. KEENEY. I think we are getting into a different area if we are dealing with nudity and nothing else. The various bills that we are discussing, I think most of them have in addition to nudity, they have some sort of a sexual conduct, heterosexual, or deviate-type conduct.

Mr. MILLER. They go into the question of simulation.

Mr. KEENEY. Which is offensive as far as children are concerned. Nude pictures of children presumably would not necessarily be deemed offensive by

Mr. MILLER. Or necessarily that small part of the Exorcist or that small part of the American Graffiti, where you have a scene with a young child.

Mr. KEENEY. It is more than nudity.

Mr. MILLER. It is more than nudity but again it is a question of community standards and what a jury, as you say, let us be sensible, what would the jury say about the Exorcist, a film that earned over

$100 million and people were going to the American Graffiti where parents dragged their children to see their life style of the 1950's. They wanted their kids to see what it was like to hang out at a drive-in. Also in the flic was a scene where a 12-year-old girl gets a date with an 18-year-old guy and somebody would find that stimulating, I am sure. That test still remains taken as the whole, whether it is a nudist magazine, whether it is Exercos or whether it is a blatant child pornographic film or magazine.

Mr. KEENEY. Yes, if we are dealing with obscenity laws per se and if we are not dealing with some other constitutional power of the Congress.

Mr. MILLER. Thank you.

Mr. BRADEMAS. Mr. Keeney, thank you very much for your time and effort in answering our questions. Your observations have been most helpful to us in understanding these difficult problems.

Mr. KEENEY. Thank you.

Mr. BRADEMAS. We are pleased next to call our distinguished colleague, Hon. John M. Murphy, a Member of Congress from New York.

TESTIMONY OF HON. JOHN M. MURPHY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

Mr. MURPHY. Thank you, Mr. Chairman. It is a pleasure and I appreciate the opportunity to appear before this unique meeting of two subcommittees on behalf of legislation which Mr. Kildee and I have submitted on behalf of approximately 142 cosponsors, a little more than 32 percent of the House.

I believe the breadth of that support indicates an overwhelming nationwide response to a problem which, until recently, was swept under the rug.

Both the subcommittees here have already held hearings on the bill, so I need not describe in great detail the horrible use of children in pornographic materials. Previous witnesses have graphically outlined the type and scope of available materials, and more important, the abuses to which the children involved are subjected. Almost without exception, everyone agrees that some sort of legislation is necessarythat "something must be done"-and most agree that the legislation before the subcommittees is an excellent vehicle. I shall therefore not take additional time in repetitive statements of the problem, but will instead address myself to the legislative solution.

In much of the testimony preceding mine, there seem to have been two major recurring themes of concern. One focused constitutional and first amendment reservations, and the other on the language in the bill and some possible redundancy with already existing statutes, and in a few instances, some alleged misdirection of our bill.

I would, therefore, like to give the subcommittees the benefit of an author's perspective, so that the all-important aspect of legislative intent can be successfully molded into an acceptable and effective law. Let me first point out that we cannot take comfort in existing statutes. They simply do not work. There are five Federal laws, for example, which prohibit the distribution of obscene materials. One pro

hibits mailing, one blocks importation, one proscribes broadcast, and two prohibit interstate transportation or use of common carriers to transport obscene materials. But all have a single major failing, in addition to their lack of specificity regarding the use of children. Before any can be enforced, it must first be determined that the materials are, indeed, obscene. The courts, including the Supreme Court, have been trying for decades to arrive at a suitable and acceptable guideline. None have surfaced.

A Library of Congress study done at my request indicates that while 47 States have legislation governing display of obscene materials to minors, only six States have had the insight to prohibit the use of minors. Everyone seems concerned with physical abuse, neglect, and similar problems, but there has been very little legislative cognizance of sexual and emotional disabilities which result. And finally, many existing techniques of prosecution depend either on witnesses to a crime, or on catching someone "in the act." The nature of the pornography industry makes either case unlikely. And we already have ample evidence of the unenforceability of obscenity statutes, as well as the apathy such as allowed a Chicago man to continue publishing his "chickenhawk" magazine on the prison printing press.

All this points to the need for State legislation which parallels Federal statutes. The Congress is limited to an interstate jurisdiction, and the bill before you is drafted in such a fashion. It does not presume to be the final answer for cessation of all pornography, but a reasonable starting point upon which to develop this and other approaches to an exceptionally difficult problem.

Let me underscore that point. The bill does not try to function within existing obscenity parameters. The word "obscenity" does not appear, nor is it intended to apply, in this bill. Our bill does not presume to define the listed sexual acts as obscene; rather, it defines them as prohibited when children are involved. The focus of the bill is on the sexual and emotional abuse of the child per se, rather than whether such an abuse might be obscene. So much for obscenity.

There has been considerable commentary regarding the language, definitions and verbal structure of the bill. Mr. Kildee and I are the first to admit that we are not constitutional scholars. The purpose of the bill is to present a base of operation which provides ample opportunity for refinement, clarification, fleshing out and modification in the congressional process. Let me touch on a few points.

Some of the observations of allegedly "broad language" are welltaken. For example, our definition of "other sexual activity" might be made more specific by substituting such a phrase as "other genital or anal conduct or activity." Similarly, we might add the word "knowingly” just before ". . . receives," which would help to protect the innocent bookstore operator who cannot control the content of his wares. However, I would very strongly argue against an alteration which would change the language to "knowingly cause." Such a loophole would allow a producer/entrepreneur to simply place his money into a blind venture, with instructions to return a handsome profit, but to keep him ignorant as to the source of the profits.

There is a substantial legal precedent for such an approach in our contributory negligence laws. Even though you might run through a

red traffic light without knowingly breaking the law, you are still liable for the resulting manslaughter when you hit a pedestrian or another vehicle.

I must also oppose a change in the age limitations stated in the bill. The age of 16 was not an arbitrary choice. It is the existing Federal age of sexual consent where Federal jurisdiction applies, such as military installations, Indian reservations, et cetera. Suggestions to lower the line of demarcation to the age of puberty ignore the differences in rates of development between girls and boys, or from one child to the next. What might be considered under such a phrase to be legal for an early-blooming 9-year-old would be illegal for his or her slow-growing 12-year-old brother.

There has been a suggestion that we consider the licensing of filmmakers, requiring a certification that the children they might use be of an appropriate age. I contend such a requirement is futile. The burden would be placed upon legitimate producers who want to comply with the law, while those pornographers who are already breaking the law by their actions are highly unlikely to worry about not filling out another Federal form which, in effect, would constitute an admission of either guilt or perjury.

Another area which might be further defined includes the commercial showing of pornographic films involving children, where the product is not sold, but rather, tickets or admission. I would suggest we incorporate language which would preclude the commercial showing or display of such materials involving children, where tickets or admission is charged (such as a theatre or a quarter-machine found in the back of bookstores), or where any other solicitation is made for a showing before an audience... which would preclude advertising, or a "pass-the-hat" money collection at a stag party showing.

Any fears that enforcement and prosecution of this legislation would differ from region to region have ignored the nature of the bill: It is a Federal law, and as such would have suits initiated by a Federal district attorney, not a local prosecutor. And scenarios which depict a vindictive judge imposing execessive penalties also ignore an American tradition called "trial by jury." Exceptions can be formulated for every law on the books. We have allowed some dicretion by the judiciary.

I would also have to admit to a slight lapse in technological awareness when our bill was drafted to speak of photographs or films. It seems that a medium such as video tape might not be covered under such language. I would therefore suggest that a substitution might be in order to include "any photographic or electronic visual image, depiction, or representation."

Exception has also been taken with our inclusion of the simultation of a sexual act on film. I believe this to be a necessary restriction, since pornography depends on the presentation of sexual acts in all their forms. If penetration does not occur, or a pre-pubescent child. cannot "perform" the sex act to conclusion, the filmed result is no less pornographic in nature. Their lucrative show simply continues with a different camera angle or different perversion on the nonerect performer.