The legitimate movies and stage productions have also been mentioned as affected by the legislation at hand. While I agree that they might, indeed, be affected, the fact that the legitimate theater chooses to portray sexual activity among children does not lend any respectability to the act, or to its filming and distribution. Pornographic materials are not limited to those produced by pornographers. The only difference in the portrayal of identical acts by the pornographer or the legitimate theater is perhaps the quality of the product and the channels in which it is distributed. The depiction of the delowering of an 8-year-old girl is no more acceptable simply because 20th Century Fox brought it to the silver screen, or David Merrick brings it to Broadway. The bill does not take issue with talking about the event, only its actual depiction. Thus, such scenes as the one in Remeo and Juliet which include a bedroom scene are not affected. In that case, the script obviously picked up after the sex act, which was not viewed by the audience.

Finally, I would like to address some of the concerns about the effect of this legislation upon our first amendment rights. I would underscore the remarks of Charles Rembar, the attorney who handled the cases of Lady Chattlerley's Lover and Fanny Hill, when he appeared before this subcommittee. He offered his opinion that this bill "does not run afoul of the first amendment. The first amendment." he said, "deals with expression, not with behavior or conduct." I wholeheartedly agree. The first amendment is not absolute. There are laws against libel, slander, invasion of privacy, making false statements in securities sales or in criminal conduct, and so on. It is totally absurd to suggest that the first amendment protects my young daughter's rights against being libeled or having her privacy invaded, but that pornoraphic films of her would be protected as some pervert's freedom of speech.

Similarly, the ACLU's position is ludicrous. They have stated before this subcommittee that the abuse of the child should certainly be dealt with, but once those abusive films are made, we should not restrict their interstate movement. The ACLU suggests we should go after the producers. And that is precisely what we have done.

A child of 5 simply does not hop in a cab to go to his local pornographer to shoot a "skin flick." In every instance there is the guidance of an adult who is in the business for the money. The best, and perhaps the only way, to attack the problem is by removing the economic incentives. Production will stop if there is no market for the results, or if the penalties for transporting and marketing make it impossible to do business economically or profitably. Do not confuse pornographers with molesters. There is a difference between those who are in it for the money and those who are mentally ill. Some, of course, fall into both categories. But our bill deals with the economic reality of pornography, and the growing marketability of children on film.

I would also point out that there is ample precedent for our legislation in other fields. The most obvious are the existing child labor laws, which say in essence that the fruits of oppressive child labor may not be shipped or sold in interstate commerce.

This presents an interesting paradox in which a film or book might be seized if it were produced with the use of children behind the

camera underoppressive conditions-substandard wages, long hours, dangerous surroundings-but the moment the child steps in front of the camera, some magic transition is alleged to have occurred which protects the film as an expression of ideas under the first amendment. That is absurd.

Other supportive legislative precedents include laws regarding contributory negligence, accessory after the fact, as well as before and after the fact, statutory rape, contributing to the delinquency of a minor, and so forth. All require certain types of proof for prosecution. In the legislation before you, the films, magazines, books, and the like are their own evidence the fact that children have been used is obvious, and prosecutable.

The ACLU says we should enact no more laws, but should enforce the existing obscenity statutes. Yet they are in the vanguard of those who violently attack those statutes as unconstitutional. If the ACLU will simply choose which side of the fence they wish to remain on, we can pursue their point of view in a rational manner.

Let me close by reminding both subcommittees that the bill before them is not an antiobscenity bill. It is aimed at stopping the sexual abuse and emotional annihilation of hundreds of thousands of children nationwide in the gutter industry of pornography. If the defenders of the child-abusing pornographers will allow the filming of their own naked children, with or without sexual congress, for sale around the country in sleazy bookstores or out of car trunks, then I might be able to accept the sincerity of their arguments.

Interviews with social workers who must deal with children warped for life by early sexual abuse show that they consider as a successful termination of their case the simple expedient of getting the case off their books and into any other agency except their own. While that indicates an important shortcoming in our social welfare structure, it also indicates the seriousness and virtual impossibility-of dealing with the wrecked lives of these children.

The problem must be dealt with before the abuse occurs, at the very core of the pornography industry-its economic foundation. Many years of overturned obscenity cases have shown the futility of that approach. Our legislation makes in financially unsound, and legally fearsome, to even consider the use of a child in such a manner. And remember that our bill only applies to children, not consenting adults. A 7-year-old child is in no position to consent, or even to understand, the events surrounding him.

I trust that both subcommittees will view the bill in the manner which was intended: A vehicle to be refined, strengthened, broadened, and ultimately passed into a law which is absolutely necessary to protect our children from the most vicious creatures that breathe, the pornographers who live off the blood of children.

Mr. BRADEMAS. Thank you very much, Mr. Murphy.

Mr. Conyers?

Mr. CONYERS. I wanted to commend by colleague for the fervor and the emotion with which he obviously invests in this subject matter and also assure him that this subcommittee will be very careful in exploring the benefits that he recommends as the ultimate necessity of additional legislation.

There are a number of things that I would want to discuss with him further on the record, but will do it off the record because we do have a serious time problem now.

You should be aware, however, that the American Civil Liberties Union before the subcommittee on crime was not opposed to additional legislation. They were concerned about the constitutional question which if you heard the representative from the Department of Justice before us, indicate under my questioning that the obscenity test is going to apply no matter what law that we come up with, and even the bills that are now under consideration are going to when they reach the courts be subject to the same test that has already been erected by the courts.

So we are very mindful of these kinds of pitfalls and we would like to do more than just add another bill to the box, so I think we are all grateful to our colleague for coming before us.

Mr. BRADEMAS. Mr. Jeffords?

Mr. JEFFORDS. No questions other than to echo the comments of the chairman of the Subcommittee of the Judiciary.

Mr. BRADEMAS. Mr. Gudger?

Mr. GUDGER. I want to commend Congressman Murphy upon the sincerity and effectiveness of his presentation. I come from one of those six States that have been trying to deal effectively in this area, and have a very sincere appreciation of your concern, your objectivities, and share your desires to see some legislation develop here.

I will not undertake any questions at that time. I have already indulged to some degree in questioning the previous witness who testified. But I do look forward to discussing this matter with you personally.

Mr. BRADEMAS. Mr. Miller?

Mr. MILLER. Thank you, Mr. Chairman.

Congressman Murphy, just one question. You comment on page 5 in your statement on the question that had been raised regarding perhaps the requirement of certification as to the appropriate age of children, and you claim that "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."

pro

It seems to me there is some merit to certainly looking at that posal in the sense that legitimate filmmakers, since we have just heard very possibly "The Exorcist" would be in trouble, a legitimate filmmaker who still wants to make the scene now, maybe wants to use an 18-year-old female who looks 14 or 15, or whatever, for the purposes of carrying out what he conceives to be his product, can say, "I am not prepared to use a young child for this purpose, yet I want to make the film in this way."

Also, it seems to me more for the illegitimate filmmaker person using minors for profit on expiration you have a handle by which to really intercept and grab the product.

Mr. MURPHY. To address the question of that particular film I think the producers generally agree that scene was not necessary to

the plot and they could have done without it where they use a child who falls in this category. But the question of filling out a form and filing it just seems to me to be another form that only legitimate businesses and legitimate producers would comply with.

Mr. MILLER. It is a little bit like also filling out our tax forms. It is just another form until you do it illegally and do it with the purpose of committing fraud and then it becomes more than that form. It becomes a piece of evidence and a vehicle by you would start the search or vehicle by you can match the product against the evidence, and that would be my concern, because they may or may not, people may have conceded now because it has been used so many times. As an example, "The Exorcist" could have been made without that scene but somebody exercised their sense of filmmaking and made that film, or as was pointed out by Richard Dreyfuss, the actor, in "American Graffiti," the point would be, should they have the ability to avoid prosecution, and still not be brought by censorship, have a vehicle by which to escape it in the legitimate filmmaking industry.

Mr. MURPHY. I would say that would be a matter for the committee's judgment. I just expressed my own personal feeling on it.

Mr. BRADEMAS. Mr. Murphy, I want also to join my colleagues in expressing warm appreciation to you for your statement and I am well aware of your own deep interest in this problem and your concern we shape some legislation to deal with it responsibly.

Because I must go to another meeting, I am going to ask the gentleman from Michigan, the chairman of the other subcommittee, to assume the chair, and then if he finds it necessary to in turn go to another meeting, ask the gentleman from California, Mr. Miller, the ranking Member on our side, to assume the chair.

Again, Mr. Murphy, I want to thank you and especially want to thank my colleague from Michigan, Mr. Conyers.

Mr. CONYERS. I want to thank you. Are there any questions further of the gentleman from New York. Mr. Murphy?

We want to thank our colleage for his contribution. He can be assured we will take his recommendation into very thorough consideration.

[The prepared statement of Hon. John M. Murphy follows:]

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

Mr. Chairman, I thank you for the opportunity to appear before this rather unique joint session of two House Subcommittees on behalf of the legislation which Mr. Kildee and I have submitted on behalf of approximately 142 cosponsors-30 percent of the House of Representatives. 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 abuse to which the children involved are subjected. Almost without exception, everyone agrees that some sort of legislation is necessary-that "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 on constitutional and first amend

ment 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 prohibits mailing, one blocks importation, one proscribes broadcast, and two prohibit interstate transportation or use of common carriers to transport obscent materials. But all have a single major failing, in addition to their lack of specificity regarding the use of children. Beinfore any can be enforced, it must first be determined that the materials are, deed, 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 abuse and emotional disabilities which result. And finally, many existing techniques of prosecution depend either on witnessesto 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 obscent; 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 well-taken. 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, etc. 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 en appropriate age.