MS. FREED. Will that help you out, or will you still need Federal assistance in your investigations?

Mr. GEMIGNANI. I must not have made my point. We need Federal intervention because it crosses interstate lines. We don't have enough money to deal with it ourselves, we can't move from Rockford to California, where it is produced, and find those people, and the information which is available to California is not available to us. But if there is a Federal statute, under which all people are working, all this information is available to each agency wherever it might be.

Ms. FREED. You made your point. The Justice Department has appeared before us and stated they may have difficulties having the FBI investigate some of these cases, and we like to ask our witnesses questions on things the Justice Department has commented on.

My only other question is could you speculate as to why you had such an increase in your indecent liberties caseload? Could it have been because the media concentration has caused quite a few more arrests?

Mr. GEMIGNANI. I don't know. I personally think that the increase in this sort of activity is due to, at least in part, to the excess dissemination of obscenity, our permissiveness in our society. That is to say, the making of it more available, whatever. I think it is tied somehow to obscenity itself. Or perhaps to our loose morals. I don't know what it is for sure. All I know is there is an increase, an alarming increase. And somebody ought to do something about it.

Ms. FREED. Thank you.

Mr. CONYERS. Thank you very much.

Mr. VOLKMER. Mr. Chairman, could I make sure we get one point? I think this point was made by the Attorney General of the State of Delaware, in calling for Federal intervention. And that is basically the limited manpower, the limited funds, et cetera, that you feel the local people, prosecutors, have in relationship to the Federal system, and the Federal court system. Instead of having perhaps 102 prosecutions moving up on appeal in the State of Illinois, you could have one Federal indictment, perhaps clearing up a lot of it all over by indicting the proper parties.

Mr. GEMIGNANI. Precisely, that is exactly the point I wanted to make. Mr. VOLKMER. All you can basically get to is perhaps the local distributor and that is about it.

Mr. GEMIGNANI. If we have a distributor. Remember the stuff is coming from this State to this State, not all States produce it, so you have got to go to the origin of the product and do something about it there. The Federal Government is that agency to do that.

Mr. CONYERS. Thank you, again.

The subcommittee stands in adjournment.

[Thereupon, at 4:10 p.m. the hearing was adjourned.]

APPENDIXES

A-1 Federal Obscenity Statutes.

APPENDIX A

A-PRESENT LAW

A-2 Analysis of Existing State Laws on Sexual Child Abuse.

A-3 Analysis of State Law by the National Conference of State Legislatures.

1955-Act June 28, 1955, ch. 190, § 4, 69 Stat. 184, added item 1465.

1950-Act May 27, 1950, ch. 214, § 2, 64 Stat. 194, substituted "matters" for "literature" in item 1462.

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in title 39 section 3001.

§ 1461. Mailing obscene or crime-inciting matter

Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and

Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and

Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and

Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and

Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and

Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing—

Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.

Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section or section 3001 (e) of Title 39 to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, or knowingly takes any such thing from the mails

for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense, and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter.

The term "indecent", as used in this section includes matter of a character tending to incite arson, murder, or assassination. (June 25, 1948, ch. 645, 62 Stat. 768; June 28, 1955, ch. 190, §§ 1, 2, 69 Stat. 183; Aug. 28, 1958. Pub. L. 85-796, § 1, 72 Stat. 962; Jan. 8, 1971, Pub. L. 91-662, §§ 3, 5(b), 6(3), 84 Stat. 1973, 1974.)

LEGISLATIVE HISTORY

Reviser's Note.-Based on title 18, U.S.C., 1940 ed., § 334 (Mar. 4, 1909, ch. 321, § 211, 35 Stat. 1429; Mar. 4, 1911, ch. 241, § 2, 36 Stat. 1339).

The attention of Congress is invited to the following decisions of the Federal courts construing this section and section 1462 of this title.

In Youngs Rubber Corporation, Inc. v. C. I. Lee & Co., Inc., C. C. A. 1930, 45 F.2d 103, it was said that the word "adapted" as used in this section and in section 1462 of this title, the latter relating to importation and transportation of obscene matter, is not to be construed literally, the more reasonable interpretation being to construe the whole phrase "designed, adapted or intended" as requiring "an intent on the part of the sender that the article mailed or shipped by common carrier be used for illegal contraception or abortion or for indecent or immoral purposes." The court pointed out that, taken literally, the language of these sections would seem to forbid the transportation by mail or common carrier of anything "adapted," in the sense of being suitable or fitted, for preventing conception or for any indecent or immoral purpose, "even though the article might also be capable of legitimate uses and the sendor in good faith supposed that it would be used only legitimately. Such a construction would prevent mailing to or by a physician of any drug or mechanical device ‘adapted' for contraceptive or abortifacient uses, although the physician desired to use or to prescribe it for proper medical purposes. The intention to prevent a proper medical use of drugs or other articles merely because they are capable of illegal uses is not lightly to be ascribed to Congress. Section 334 [this section] forbids also the mailing of obscene books and writings; yet it has never been thought to bar from the mails medical writings sent to or by physicians for proper purposes, though of a character which would render them highly indecent if sent broadcast to all classes of persons." In United States v. Nicholas, C. C. A. 1938, 97 F. 2d 510, ruling directly on this point, it was held that the importation or sending through the mails of contraceptive articles or publications is not forbidden absolutely, but only when such articles or publications are unlawfully employed. The same rule was followed in Davis v. United States, C. C. A. 1933, 62 F. 2d 473, quoting the obiter opinion from Youngs Rubber Corporation v. C. I. Lee & Co., supra, and holding that the intent of the person mailing a circular conveying information for preventing conception that the article described therein should be used for condemned purposes was necessary for a conviction; also that this section must be given a reasonable construction. (See also United States v. One Package, C. C. A. 1936, 86 F. 2d 737.)

Reference to persons causing or procuring was omitted as unnecessary in view of definition of "principal" in section 2 of this title. Minor changes in phraseology were made.

AMENDMENTS

1971-Pub. L. 91-662, § 3(1), in second par. struck out "preventing conception or" preceding "producing abortion."

Pub. L. 91-662, § 3(1), in third par, struck out "preventing conception or" following "apply it for."

Pub. L. 91-662. § 3(1), in third par. struck out "preventing conception or" following "applied for."

Pub. L. 91-662, § 3(2), (3), in fourth par. substituted "means abortion may be produced" for "means conception may be prevented or abortion produced".

Pub. I. 91-662. § 6(3), in eighth par. added "or section 3001(e) of title 39" following "this section". Section 5(b) of Pub. L. 91-662 inserted reference to section 4001 (d) of Title 39, The Postal Service, which reflected provisions of Title

39 prior to the effective date of Title 39, Postal Service, as enacted by the Postal Reorganization Act. Said section 4001(d) was repealed by section 6(2) of Pub. L. 91-662, effective on the date that the Board of Governors of the Postal Service establish as the effective date for section 3091 of Title 39, Postal Service.

1958-Pub. L. 85-796 provided in the eighth par. for continuing offenses by use of the mails instead of by deposits for mailing and for punishment for subsequent offenses.

1955-Act June 28, 1955, § 1, substituted in first paragraph "indecent, filthy or vile article, matter, thing, device or substance" for "or filthy book, pamphlet, picture paper, letter, writing, print, or other publication of an indecent character". Act June 28, 1955, § 2, eliminated the fifth paragraph which read as follows. "Every letter, packet, or package, or other mail matter containing any filthy, vile, or indecent thing, device or substance; and"

EFFECTIVE DATE OF 1971 AMENDMENT

Amendment by sections 3 and 5(b) of Pub. L. 91-662 effective Jan, 9, 1971, see section 7 of Pub. L. 91-662, set out as a note under section 552 of this title.

Section 6 of Pub. L. 91-662 provided in part that the amendment by section 6(3) of Pub. L. 91-662 shall be effective on the date that the Board of Governors of the United States Postal Service establishes as the effective date for section 3001 of title 39 of the United States Code, as enacted by the Postal Reorganization Act [section 3001 of Title 39, Postal Service].

COMMISSION ON OBSCENITY AND PORNOGRAPHY

Pub. L. 90-100, Oct. 3, 1967, 81 Stat. 253 as amended by Pub. L. 90-350, title V, § 502, June 19, 1968, 82 Stat. 197; Pub. L. 91-74, title V, § 503, Sept. 29, 1969, 83 Stat. 123, provided that:

"Finding of Fact and Declaration of Policy

"SECTION 1. The Congress finds that the traffic in obscenity and pornography is a matter of national concern. The problem, however, is not one which can be solved at any one level of government. The Federal Government has a responsibility to investigate the gravity of this situation and to determine whether such materials are harmful to the public, and particularly to minors, and wheher more effective methods should be devised to control the transmission of such materials. The State and local governments have an equal responsibility in the exercise of their regulatory powers and any attempts to control this transmission should be a cordinated effort at the various governmental levels. It is the purpose of this Act to establish an advisory commission whose purpose shall be, after a thorough study which shall include a study of the casual relationship of such materials to antisocial behavior, to recommend advisable, appropriate, effective, and constitutional means to deal effectively with such traffic in obscenity and pornography.

"Commission on Obscenity and Pornography

"SEC. 2. (a) Establishment.-For the purpose of carrying out the provisions of this Act, there is hereby created a commission to be known as the Commission on Obscenity and Pornography (hereinafter referred to as the 'Commission'), whose members shall include persons having expert knowledge in the fields of obscenity and antisocial behavior, including but not limited to psychiatrists, sociologists, psychologists, criminologists, jurists, lawyers, and others from organizations and professions who have special and practical competence or experience with respect to obscenity laws and their application to juveniles.

"(b) MEMBERSHIP OF THE COMMISSION.-The Commission shall be composed of eighteen members appointed by the President.

"(c) VACANCIES.-Any vacancy in the Commission shall be filled by appointment by the President.

"(d) ORGANIZATION OF COMMISSION.-The Commission shall elect a Chairman and a Vice Chairman from among its members.

"(e) QUORUM.-Ten members of the Commission shall constitute à quorum, but five members shall be sufficient for the purpose of taking testimony or interrogating witnesses.

"Compensation of Members of the Commission

"SEC. 3. (a) MEMBERS EMPLOYED BY UNITED STATES.-Members of the Commission who are officers or full-time employees of the United States shall serve without compensation in addition to that received for their services as officers or employees of the United States; but they shall be allowed travel expenses, including per diem in lieu of subsistence, as authorized by section 5703 of title 5, United States Code, for persons in the Government service employed intermittently.

"(b) OTHER MEMBERS.-Members of the Commission who are not officers or full-time employees of the United States shall each receive $75 per diem when engaged in the actual performance of duties vested in the Commission. In addition, they shall be allowed travel expenses, including per diem in lieu of subsistence, as authorized by section 5703 of title 5, United States Code, for persons in the Government service employed intermittently.

"Staff of the Commission

"SEC. 4. Such personnel as the Commission deems necessary may be appointed by the Commission without regard to the provisions of title 5, United States Code, governing appointments in the competitive service, and may be paid without regard to the provisions of chapter 51 and subtitle III of chapter 53 of such title relating to classification and General Schedule pay rates.

"Duties of the Commission

"SEC. 5. (a) INVESTIGATION AND RECOMMENDATIONS.-It shall be the duty of the Commission

"(1) with the aid of leading constitutional law authorities, to analyze the laws pertaining to the control of obscenity and pornography; and to evaluate and recommend definitions of obscenity and pornography;

"(2) to ascertain the methods employed in the distribution of obscene and pornographic materials and to explore the nature and volume of traffic in such materials;

"(3) to study the effect of obscenity and pornography upon the public, and particularly minors, and its relationship to crime and other antisocial behavior; and

"(4) to recommend such legislative, administrative, or other advisable and appropriate action as the Commission deems necessary to regulate effectively the flow of such traffic, without in any way interfering with constitutional rights.

"(b) REPORT.-The Commission shall report to the President and the Congress its findings and recommendations as soon as practicable and in no event later than September 30, 1970. The Commission shall cease to exist ten days following the submission of its final report.

"Powers of the Commission

"SEC. 6. (a) HEARINGS AND SESSIONS.-The Commission or, on the authorization of the Commission, any committee thereof, may, for the purpose of carrying out the provisions of the Act, hold such hearings and sit and act at such times and such places within the United States as the Commission or such committee may deem advisable.

"(b) CONSULTATION.-In carrying out its duties under the Act, the Commission shall consult with other Federal agencies, Governors, attorneys general, and other representatives of State and local government and private organizations to the extent feasible.

"(c) OBTAINING OFFICIAL DATA.-The Commission is authorized to secure directly from any executive department, bureau, agency, board, commission, office, independent establishment, or instrumentality, information, suggestions, estimates, and statistics for the purpose of this Act, and each such department, bureau, agency, board, commission, office, establishment, or instrumentality is authorized and directed, to the extent permitted by law, to furnish such information, suggestions, estimates, and statistics directly to the Commission, upon request made by the Chairman or Vice Chairman.

(d) OBTAINING SCIENTIFIC DATA.-For the purpose of securing the necessary scientific data and information the Commission may make contracts with universities, research institutions, foundations, laboratories, hospitals, and other