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S. HRG. 109–280

WHY THE GOVERNMENT SHOULD CARE ABOUT

PORNOGRAPHY: THE STATE INTEREST IN PROTECTING CHILDREN AND FAMILIES

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS AND PROPERTY RIGHTS

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

NOVEMBER 10, 2005

Serial No. J–109–51

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND PROPERTY RIGHTS

SAM BROWNBACK, Kansas, Chairman 

ARLEN SPECTER, Pennsylvania 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

RUSSELL D. FEINGOLD, Wisconsin 

EDWARD M. KENNEDY, Massachusetts 

DIANNE FEINSTEIN, California 

RICHARD J. DURBIN, Illinois 

AJIT PAI, Majority Chief Counsel 

ROBERT F. SCHIFF, Democratic Chief Counsel 

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C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS

Page

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas ....................... 1

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 3

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 5

prepared statement .......................................................................................... 35

WITNESSES 

Harris, Leslie, Senior Consultant and Executive Director Designee, Center 

for Democracy and Technology, Washington, D.C. ............................................ 13

Manning, Jill C., Social Science Fellow, Heritage Foundation, Washington, 

D.C., and Sociologist, Brigham Young University, Provo, Utah ...................... 11

Paul, Pamela, Author, New York, New York ........................................................ 7

Smolla, Rodney A., Dean, University of Richmond School of Law, Richmond, 

Virginia ................................................................................................................. 9

Whidden, Richard R., Jr., Executive Director and Senior Counsel, National 

Law Center for Children and Families, Fairfax, Virginia ................................ 16

SUBMISSIONS FOR THE RECORD 

Harris, Leslie, Senior Consultant and Executive Director Designee, Center 

for Democracy and Technology, Washington, D.C., prepared statement ........ 28

Manning, Jill C., Social Science Fellow, Heritage Foundation, Washington, 

D.C., and Sociologist, Brigham Young University, Provo, Utah, prepared 

statement .............................................................................................................. 38

Paul, Pamela, Author, New York, New York, prepared statement ..................... 41

Smolla, Rodney A., Dean, University of Richmond School of Law, Richmond, 

Virginia, prepared statement .............................................................................. 58

Whidden, Richard R., Jr., Executive Director and Senior Counsel, National 

Law Center for Children and Families, Fairfax, Virginia, prepared statement ...................................................................................................................... 78

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WHY THE GOVERNMENT SHOULD CARE 

ABOUT PORNOGRAPHY: THE STATE INTEREST IN PROTECTING CHILDREN AND FAMILIES 

THURSDAY, NOVEMBER 10, 2005

UNITED STATES SENATE, 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND

PROPERTY RIGHTS, OF THE COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:05 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Sam Brownback 

[Chairman of the Subcommittee] presiding. 

Present: Senators Brownback, Hatch and Feingold. 

Chairman BROWNBACK. Good afternoon. The hearing will come to 

order. Thank you all for being here today. This is a hearing that 

has been scheduled I believe twice before, and I want to thank in 

particular the witnesses for their persistence in continuing to be 

willing to adjust schedules so they could be here to testify. 

OPENING STATEMENT OF HON. SAM BROWNBACK, A U.S. 

SENATOR FROM THE STATE OF KANSAS 

Chairman BROWNBACK. The infiltration of pornography into our 

popular culture and our homes is an issue that every family now 

grapples with. Once relatively difficult to procure, it is now so pervasive that it is freely discussed on popular prime time television 

shows. The statistics on the number of children who have been exposed to pornography is alarming. 

According to recent reports, one in five children between the ages 

of 10 and 17 have received a sexual solicitation over the Internet, 

and nine out of 10 children between the ages of eight and 16 who 

have Internet access have viewed porn websites, nine out of 10 

children, usually in the course of looking up information for homework. 

There is strong evidence that marriages are often adversely affected by addiction to sexually explicit material. At a recent meeting of the American Academy of Matrimonial Lawyers, two-thirds 

of the divorce lawyers who attended said that excessive interest 

and online pornography played a significant role in divorces in the 

past year. Pornography has become both pervasive and intrusive in 

print, and especially on the Internet. Lamentably, pornography is 

now also a multibillion-dollar-a-year industry. 

While sexually explicit material is often talked about in terms of 

free speech, too little has been said about its devastating effect on 

2

users and their families. Today we hope to shed some light on what 

is happening to our society, particularly children and families, as 

a result of pornography. The Federal judiciary continues to challenge our ability to protect our families and our children from gratuitous pornographic images. 

Earlier this year, Judge Gary Lancaster of the Western District 

of Pennsylvania, threw out a 10-count indictment against Extreme 

Associates, purveyors of the vilest sort of pornography. The defendants were in the business of producing films that according to one 

report, ‘‘even porn veterans find disturbing.’’ A co-owner of Extreme 

Associates even boasted that the films which depict rape, torture 

and murder, represent, ‘‘the depths of human depravity.’’ He also 

proudly admitted that the films covered by the indictment met the 

legal definition of obscenity. 

Judge Lancaster not only dismissed the indictment, but also took 

the case as an opportunity to rule all Federal statutes regulating 

obscenities unconstitutional as applied to these admittedly infringing defendants. In order to achieve this result, Judge Lancaster 

cobbled together hand-picked strands of 14th Amendment substantive process decisions from Roe v. Wade to Lawrence v. Texas, and ruled that the statutes at issue violated an unwritten constitutional right to sexual privacy. 

Even if one granted this spurious constitutional reasoning that 

such a right existed, it would not apply to the defendants, since 

they were producers and not consumers of the material in question. 

In contrast to the Federal judiciary, the Department of Justice 

has renewed its commitment to protecting our children and families from the harms of pornography. During Attorney General 

Gonzales’s confirmation hearing he was asked if he would make it 

a priority to prosecute violations of obscenity statutes more vigorously, and he made a commitment to do so. In responding to other 

Senators’ questions, he also stated, ‘‘Obscenity is something else 

that very much concerns me. I’ve got two young sons, and it really 

bothers me about how easy it is to have access to pornography.’’

I have young children too. I share the Attorney General’s concern 

about children’s access to pornography. I appreciate the efforts the 

Attorney General has made during his first year in office to combat 

this problem. 

Last spring Attorney General Gonzales reiterated the pressing 

need for urgent action to be given to pervasive violation of obscenity law, insisting that, ‘‘Another area where I would advance the 

cause of justice and human dignity is in the aggressive prosecution 

of purveyors of obscene materials. I’m strongly committed to ensuring the right of free speech. The right of ordinary citizens and of 

the press to speak out and to express their views and ideas is one 

of the greatest strengths of our form of Government, but obscene 

materials are not protected by the First Amendment, and I’m committed to prosecuting these crimes aggressively.’’

The Attorney General has followed through on his promise in 

several ways, begun the widespread effort with an obscenity prosecution task force. I deeply appreciate those efforts and I support 

them. 

In previous hearings we have looked into the constitutionality of 

obscenity prosecutions and the distinctions between obscenity and 

3

speech according to established court precedent. Today we will 

focus on another interest the Government has in the matter of 

prosecuting obscenity, the demonstrable harm it effects on our marriages and families. 

I think most Americans agree and know that pornography is bad. 

They know that it involves exploitive images of men and women 

and that it is morally repugnant and offensive. What most Americans do not know is how harmful pornography is to users and to 

their families. I fear Americans do not fully know or appreciate the 

serious and imminent risk it poses to families and especially to 

children. I hope that through this hearing we will see just how 

mainstream pornography has become and the effects pornography 

has on family. 

Today we have five distinguished witnesses. The first is Pamela 

Paul. Ms. Paul is the author of the recently published book 

‘‘Pornified,’’ which examines pornography’s impact on men, women, 

children and families. She is a contributor to Time Magazine where 

she covers social trends and issues affecting the families. Ms. Paul, 

pleased to have you here. Her first book, ‘‘The Starter Marriage 

and the Future of Matrimony,’’ was named one of the best books 

of the year by the Washington Post in 2002. 

The second witness is Dean Rodney Smolla, the Dean of the University of Richmond School of Law. Dean Smolla graduated first in 

his class out of Duke Law School in 1978, and served as law clerk 

on the Fifth Circuit Court of Appeals. He is the author or co-author 

of 11 books including ‘‘Free Speech in an Open Society.’’

The third witness today is Jill Manning, a practicing marriage 

and family therapist and Ph.D. candidate from Brigham Young 

University. She is a former Social Science Fellow at the Heritage 

University. 

The fourth witness today will be Leslie Harris, Senior Consultant 

and Executive Director Designee at the Center for Democracy and 

Technology. She has held a number of positions within the ABA 

and the ACLU, including Chief Legislative Counsel for the ACLU’s 

Washington National Office. 

And finally we will have Richard Whidden, Executive Director 

and Senior Counsel at the National Law Center for Children and 

Families. He graduated from University of Alabama Law School in 

‘89, went on to serve as Assistant Attorney General of Florida. 

I want to turn to my ranking member, Senator Feingold, for any 

opening statement that he might have. 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman. I know you care 

a great deal about this issue and I respect your concern, and of 

course, many of us have concerns in this area. 

I fully support efforts to bring to justice those who would commit 

the horrendous crimes of child pornography and human sex trafficking. Congress has done a great deal of work in this area, as has 

the Justice Department, and I commend the dedicated prosecutors 

and investigators who have devoted themselves to the fight against 

child pornography and human sex trafficking. They are doing very 

4

important work and deserve our gratitude and our complete support. 

As a father as well, I also understand the importance of preventing children from obtaining or viewing explicit materials. It 

would be harmful to them, and I recognize the difficulty that parents face in this regard. Congress has repeatedly attempted to address this problem in the past, but unfortunately it has not done 

a very good job of passing legislation that is consistent with the 

First Amendment. If legislation goes beyond materials that constitute child pornography and obscenity, the constitutional hurdles 

become even greater. 

If Congress is to address these issues it is critically important 

that we avoid repeating our past mistakes. We must do all we can 

to end the victimization of children by child pornographers and to 

keep children from viewing inappropriate materials. But we must 

also ensure that any law Congress passes to address these problems will withstand First Amendment scrutiny. 

Our children deserve laws that will work and last, rather than 

be stricken from the law books before they ever take effect. It is 

an enormous waste of time and resources to pass an unconstitutional law, and at the end of the day it does nothing to address the 

serious problems we are attempting to solve. 

I have argued over and over again in the past 10 years that Congress must have due respect for the First Amendment, and I want 

to reiterate that again here today. 

I think my record is pretty good in terms of identifying statutes 

that are of doubtful constitutionality. I will continue to speak up 

when I believe that Congress is not paying close enough attention 

to constitutional issues. 

Protecting children from sexually explicit materials on the Internet is a particularly difficult problem. Many websites containing 

sexual content are located overseas, and U.S. legal prohibitions 

would simply drive more of those websites outside the United 

States beyond the reach of our laws. As a result, several respected 

commissions have concluded that Congress should take a different 

approach. We should, they say, encourage parental involvement, 

education about the use of the Internet and the voluntary use of 

filtering tools, which while not technologically perfect, can help 

parents manage their children’s Internet experience. None of these 

approaches raise First Amendment concerns. 

At least so far, Mr. Chairman, we do not have specific legislative 

proposals in front of us that are related to this hearing. The subject 

of this hearing suggests, however, that we may at some point be 

faced with proposals that go well beyond what Congress can constitutionally undertake. I again say I hope we will not repeat our 

mistakes. 

But with that, I thank you, Mr. Chairman, for the time, and I 

welcome our witnesses, and I look forward to hearing our witnesses’ testimony. 

Thank you, Mr. Chairman. 

Chairman BROWNBACK. Thank you. I hope, if we are able to get 

to legislation, you will help us in the drafting of it. I did not think 

you would get there on the campaign finance bill, but you made it 

in front of the Supreme Court and cleared it on First Amendment, 

5

so maybe you can help me on this and where we can thread the 

needle right to make it through. 

Senator FEINGOLD. I will help you on this one more than the one 

yesterday. 

[Laughter.] 

Senator BROWNBACK. That is not a high bar, Senator, on that 

one. 

[Laughter.] 

Senator BROWNBACK. Senator Hatch. 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Thank you, Mr. Chairman. 

I want to welcome all of you witnesses here today. It means a 

lot to us that you are willing to testify. 

I first introduced legislation to restrict dissemination of obscene 

material in the 95th Congress during my first year I the Senate, 

and that was before the Internet even existed, some people say. 

What was the problem then has really become a crisis today, and 

ending in the right place requires starting in the right place. Pornography and obscenity present a problem of harm, not an issue 

of taste. Let me repeat that because we have to be on the right 

road to get where we need to go: pornography and obscenity 

present a problem of harm, not an issue of taste. 

The days are long gone when concerns about the impact of pornography consumption can be dismissed with cliches and jokes 

about the fundamentalist prudes imposing Victorian values. Actually, that attitude reflects real ignorance about the Victorians, but 

that discussion might be for a different hearing. 

[Laughter.] 

Senator HATCH. Whether it is high-fat foods, secondhand smoke 

or hard-core pornography, what we consume affects all of us. Pornography affects both consumers and our culture. Surveys, Government commissions, clinical research and anecdotal evidence have 

long confirmed that pornography consumption correlates with a 

range of negative outcomes. Its effects are protracted, progressive 

and profound. Witnesses testifying today will go into more detail 

about the evidence for how pornography harms consumers. 

The evidence for such harm was accumulating years ago at a 

time when the methods for producing, marketing and distributing 

porn were very well defined and somewhat stable. We now have 

the Internet, the most pervasive and anonymous medium ever devised by human beings. Pervasiveness and anonymity magnify the 

effect of pornography consumption on the consumer. 

One of the witnesses today has written a book titled ‘‘Pornified: 

How Pornography is Transforming Our Lives, Our Relationships, 

Our Families.’’ A review of Ms. Paul’s book appearing in the September 25th, 2005 issue of the San Francisco Chronicle said it 

shows that to discuss porn today is to discuss Internet porn. 

Another of our witnesses testifying today, and I am very happy 

that she is here, is Jill Manning, who comes from my own home 

State of Utah. She is doing her doctoral work specifically on the 

unique and devastating effects of Internet pornography. And I am 

proud to have you here, and will read your testimony. 

6

In addition, the pervasiveness and anonymity of the Internet expand the population of pornography consumers to include children. 

Let me be clear. The problem is not the Internet, the problem is 

pornography. But we must take seriously the unique and powerful 

ways the Internet can be used for evil, rather than for good. In addition to affecting consumers, pornography affects the culture. Cultural critic, Malcolm Mugridge, observed more than 25 years ago 

that America is more sex-ridden than any country in world history. 

Has the situation improved since then? Today as we head into 

the holiday season, obtaining the catalog of certain clothing companies will require a photo ID. A new survey by the Kaiser Family 

Foundation found that the number of scenes with sexual content on 

television has doubled in less than a decade. The highest concentration of sexual scenes is in shows that are most popular with 

teenagers. Someone will no doubt haul out the old argument that 

the television merely reflects but does not influence reality. The 

same Kaiser survey found that the percentage of so-called reality 

shows with sexual scenes is significantly lower than any other type 

of show. The percentage of reality shows with sexual scenes is less 

than half that for talk shows and less than one third that for 

drama shows or situation comedies. 

In 2001, Esquire Magazine published a long feature on what it 

called the ‘‘pornigraphication’’—I can hardly pronounce it—‘‘of the 

American girl.’’ Pornigraphication. There should be no need to invent such a word. 

Mr. Chairman, it is not possible rationally to argue any more 

that this is solely a matter of personal taste. It is a problem of 

harm, harm to individuals, to relationships and families, harms to 

families, harms to communities, and of course, to children. 

As a result, legislators must evaluate whether we have a responsibility to act. We all believe in the freedom of speech, no question 

about it. Mr. Chairman, you and I swore an oath to preserve and 

protect the Constitution, including the First Amendment, but the 

First Amendment is not an altar on which we must sacrifice our 

children, our families, our communities and our cultures. 

I want to thank you, Mr. Chairman, for holding this hearing, you 

and Senator Feingold for your work in this area. I want to thank 

you for the chance to participate in this important discussion and 

to hear from the distinguished panel of witnesses that you have assembled. 

I really welcome you all here, appreciate you being here. I have 

got other commitments that I have to keep at this time, but I wanted to come over and make those points and welcome you all, and 

I certainly will pay very strict attention to what you all have to 

say. 

Thank you so much, Mr. Chairman. 

Chairman BROWNBACK. Thank you, Senator Hatch. I want to recognize your ground-breaking work in this field. For some period of 

time you have been here and on this for a long period of time. I 

wish we had had it solved by this point in time, but perhaps with 

Senator Feingold’s help we are going to get it solved this time 

around, and I hope we can, and I hope we can work on that. 

Ms. Paul, I was very struck by the summation of your book that 

I read in the San Francisco Chronicle. I have heard it talked about 

7

in different places. It looks like you have done a lot of work studying the pornification of the society, and I look forward to your testimony. 

We will run the time clock at, why do we not run it at 6 minutes 

just to give you an idea of how long you are going. I would like for 

you to hold it around that as much as possible so we can get a 

chance to do some questions, if I could ask that of each of the witnesses. 

Ms. Paul. 

STATEMENT OF PAMELA PAUL, AUTHOR, NEW YORK, NEW 

YORK 

Ms. PAUL. Senator Brownback, Senator Feingold, and Senator 

Hatch, thank you so much for the opportunity to participate in this 

hearing. I have to say I do not think I ever imagined I would be 

testifying in front of Congress about pornography of all things, but 

after writing a story for Time Magazine about pornography’s effects, I was compelled by the seriousness of what I uncovered to 

write a book on the subject. That book, ‘‘Pornified: How Pornography is Transforming Our Lives, Our Relationships and Our Families,’’ was published in September of this year. 

As I hope will be understandable, I am going to refrain from 

using much of the graphic detail in this testimony that I document 

in my book, which will necessarily not give a complete picture of 

the damage that pornography does, but for those who wish to get 

a more complete and disturbing understanding of the impact pornography has, I am submitting my book along with this testimony. 

In researching my book I sought answers to some very simple 

questions. Who uses pornography and why? How does pornography 

affect people? Will looking at online pornography at age 9 affect 

boys and girls when they reach sexual maturity? What is the impact of a pornified culture on relationships and on society as a 

whole? 

To find out the private stories that people suspect but never 

hear, experience but rarely talk about, I interviewed more than 100 

people. In addition, I commissioned the first nationally representative poll conducted by Harris Interactive to deal primarily with pornography. It is the first poll to ask such questions as: Does pornography improve or harm the sex lives of those who look at it? Is 

using pornography cheating? And how does pornography affect children who view it? 

When opponents of pornography talk about the ways in which 

pornography affects people, they often talk about how pornography 

hurts women. But this leaves out an important point: pornography 

is also harmful to the men who use it. Men told me they found 

themselves wasting countless hours looking at pornography on 

their televisions and DVDs, and especially online. They looked at 

things they would have once considered appalling, bestiality, group 

sex, hard core S&M, genital torture, child pornography. They found 

the way they looked at women in real life warping to fit their fantasies that they consumed on screen. 

It was not only their sex lives that suffered. Pornography’s effects rippled out, touching all aspects of their existence. Their relationships soured. They had trouble relating to women as individual 

8

human beings. They worried about the way they saw their daughters and girls their daughters’ age. Their work lives became interrupted, their hobbies tossed aside, their family lives disrupted. 

Some men even lost jobs, wives and children. 

Men tell women that their consumption of pornography is natural and normal, that if a women does not like it, she is controlling, insecure, uptight, petty. But for many wives and girlfriends 

it becomes clear that the type of pornography men are into is all 

about men’s needs, about what they want, not about their women 

or their relationships or their families. Not only does pornography 

dictate how women are supposed to look, it skews expectations of 

how they should act. Men absorb these ideals and women internalize them. 

According to the ‘‘Pornified’’/Harris poll, 6 in 10 women believe 

pornography affects how men expect them to look and behave, and 

it quite simply changes men’s behavior. Where does he get the 

time? Already families, particularly dual-income couples, complain 

about how little time they have for their spouses and family. Imagine the toll that devoting 5 or so hours a week to pornography 

takes on family life, meals that could have been prepared and 

eaten together, homework that could have been poured over. Imagine the anxiety and tension caused to a mother who knows her husband is looking at online pornography, while his son is desperate 

for his father’s company. 

That so many men consider pornography a private matter, hidden or downplayed, necessarily creates distance with wives and 

girlfriends. According to Mark Schwartz at the Masters and Johnson Clinic, no matter how you look at it, pornography is always a 

sign of disconnection. In his research he has seen a whole new epidemic, largely related to the Internet, of people using pornography 

to disconnect from their loved ones. 

At the 2003 meeting of the America Academy of Matrimonial 

Lawyers, as Senator Brownback mentioned, the attendees noticed 

a startling trend, nearly two-thirds of the attorneys present witnessed a sudden rise in divorces related to the Internet. Six in 10 

were the result of a spouse looking at excessive amounts of pornography online. According to the association’s president, 8 years ago 

pornography played almost no role in divorces in this country. 

Today there are a significant number of cases where it plays a definite part in marriages breaking up. 

Of course, many mothers and fathers, even those who use pornography themselves, are particularly disturbed by the idea that 

their children will look at pornography. Make no mistake, experts 

say there is no way parents can prevent their children from looking 

at pornography at a young age, as young as 6- to 2-year-olds are 

now using Internet pornography, according to Nielsen/Net Ratings. 

Even if a parent uses a filtering program, children are likely to outmaneuver the software or see pornography at their local library or 

a friend’s house or in school. Statistics show that about half if not 

all teenagers are exposed to pornography in one way or another. A 

2004 study by Columbia University, found that 11.5 million teenagers have friends who regularly view Internet pornography and 

download it. 

9

Psychotherapists and counselors across the country attest to the 

popularity of pornography among preadolescents. Pornography is 

integrated into teenage popular culture. Video game culture, for example, exults the pornographic. One 2004 video game, ‘‘The Guy 

Game,’’ features women exposing their breasts when they answer 

questions wrong in a trivia contest. The game does not even get an 

adults-only rating. Pornography is so often tied into video game 

culture and insinuates itself even into nonpornographic areas of 

the Web, it is very hard for a 12-year-old to avoid. Masters and 

Johnson’s Clinical Director, Mark Schwartz, has seen 14- and 15-

year-old boys addicted to pornography. It is awful to see the effect 

it has on them. 

Touring this country to promote my book I heard again and 

again from concerned parents. ‘‘I know my 14-year-old son is looking at extreme hard-core pornography, but what can I do about it? 

He tells me he needs the computer for schoolwork.’’ I have a 10-

year-old daughter. I do not even want to think about what boys her 

age are learning about the opposite sex online. 

A pediatric nurse told me there was an incident in her practice 

in which toddlers acted out moves from a pornographic movie. A 

day’s worth of nationwide headlines inevitably brings up stories of 

children encountering pornography at the library, child pornography arrests and school incidents in which teachers are caught 

looking at pornography on computers during school hours. It is terrible enough that adults are suffering the consequences of a 

pornified culture, but we must think about the kind of world we 

are introducing to our children. 

Certainly everyone, liberals and conservatives, Democrats and 

Republicans, can agree with the statement, ‘‘It was not like this 

when we were kids.’’ And I cannot imagine anyone would have that 

thought without simultaneously experiencing a profound sense of 

fear and loss. 

Thank you. 

[The prepared statement of Ms. Paul appears as a submission for 

the record.] 

Chairman BROWNBACK. That is powerful testimony. I look forward to questions and answers. 

Dean Smolla, I hope I said your name correctly. 

Mr. SMOLLA. Yes, Senator, you did. Thank you. 

Chairman BROWNBACK. Glad to have you here. 

STATEMENT OF RODNEY A. SMOLLA, DEAN, UNIVERSITY OF 

RICHMOND SCHOOL OF LAW, RICHMOND, VIRGINIA 

Mr. SMOLLA. Thank you. 

I know the focus of this hearing is not on constitutional law as 

such, but on the nature of the harms associated with sexually explicit material. What I want to do is focus on the extent to which, 

as you think about possible legislation, you are permitted under existing constitutional doctrine to take that harm, which is undisputed, and use it as the predicate for justifying legislation, and the 

extent to which you are not, the extent to which existing First 

Amendment doctrine says while that harm may exist, you cannot 

make use of that to justify this particular type of legislation. 

10

The first think I want to do is just talk about a habit that all 

of us have, I have and most of us have, in referring to this area. 

We will use a word like, a phrase like ‘‘sexually explicit,’’ or we will 

talk about pornography or porn, or as I often do, pornography and 

obscenity. And I think all three Senators probably use those types 

of phrases as a compound, and it is natural, we all do. 

But First Amendment doctrine is more precise, and First Amendment doctrine takes the vast array of sexually explicit material 

that we know exists ubiquitously on the Internet. It exists on satellite television, cable television and so on. And it draws a sharp 

distinction under existing doctrine. Between that sexually explicit 

material that is legally obscene, which is really the only true First 

Amendment term of art, and that which is lewd or pornographic or 

sexually explicit, but does it make the three-part test of Miller v. 

California? 

The first important thing for you to think about is that the probability is that vast quantities of what is now on satellite, cable and 

the Internet, already meet the Miller standard. That is to say, 

someplace in some locality under community standards it can already be prosecuted, because it would already satisfy the Miller

standard. 

So one sort of common sense thing to keep in mind is this may 

not be a matter of needing new legislation, it may simply be a matter of making the decision at the local level, the State level or the 

Federal level, to put more resources into prosecution under the 

Miller standard, which you are always free to do. 

More importantly, I think, what I would like to do is address this 

question: to what extent can you go beyond Miller? Are there pockets of this issue that you can address that allow you to pass legislation to get at material that is protected under the Miller standard? 

And the answer is, that if you want to go after this material there 

is some good news and bad news. The good news—and this is conjured up by Senator Feingold’s remarks—is that the Supreme 

Court has already said that children are a special case, really in 

two senses. 

First of all, you can use filtering and filtering technology as a 

way of contending with this problem. That comes preapproved from 

the Supreme Court of the United States. It means if you put all 

of the various decisions of the last 7 or 8 years together, that some 

combination of what parents do in the home and what libraries can 

do, which the Supreme Court said is permissible in the American 

Libraries case, that is one way of contending with it. And of course, 

there is no protection for trafficking in true child pornography. 

That is to say, when children are actors that are part of the presentation, that is a heinous exploitation of children and there is nothing whatsoever in the Constitution standing between efforts by 

Congress to bolster that effort. 

My last point, however, is the sort of bad news, if you will, if you 

want to aggressively go after this material under First Amendment 

doctrine. I would characterize it as having two important points. 

First of all, you cannot simply listen to evidence, as credible and 

convincing as I am sure it will be, that there are harms associated 

with the sexually explicit material, and then label those harms 

compelling governmental interest, and use that device to say, we 

11

can outlaw material protected under Miller, but nevertheless causing trouble in our society because we can meet the strict scrutiny 

test under the First Amendment and justify it by compelling governmental interest. That is not existing First Amendment doctrine. 

Rather, existing First Amendment doctrine says when you have 

a specific issue that you are dealing with, incitement to riot, 

threats to violence, libel, prior restraint, obscenity—and there is a 

specific First Amendment test that sets forth existing, clear doctrines for dealing with that, that displaces the strict scrutiny test. 

The reason for that, the reason that is not a bad constitutional 

principle, is that there is a tremendous temptation for us to move 

against offensive speech of all kind, flag burning, speech that 

seems to promote terrorist ideals that we do not agree with, sexually explicit speech. The whole history of this country is wrapped 

up in the natural tendency that all of us have to know evil speech 

and to want to legislate against it. And the reason we have these 

very specific doctrines with these very demanding standards like 

Miller, is to prevent us from yielding to that temptation, and then 

attempting to justify it by saying, ‘‘Well, there is a compelling interest to do it.’’ The Supreme Court said that is not the way you 

are allowed to go. You should not feel bad about that as a constitutional constraint because as I said at the beginning, you have the 

tools already to deal with the problem addressing children, and to 

deal with material that is already obscene under Miller v. California, which is probably a large amount of material if there was 

the willpower and the social resources to go after it. 

Thank you, Senators. 

[The prepared statement of Mr. Smolla appears as a submission 

for the record.] 

Chairman BROWNBACK. Thank you very much, Dean Smolla. 

That was very good and very succinct, and I will look forward to 

some questions to probe a little bit further with you what particularly we might be able to do on Internet type items. 

Ms. Manning.

STATEMENT OF JILL C. MANNING, SOCIAL SCIENCE FELLOW, 

HERITAGE FOUNDATION, WASHINGTON, D.C., AND SOCIOLOGIST, BRIGHAM YOUNG UNIVERSITY, PROVO, UTAH 

Ms. MANNING. Thank you, Senator Brownback, Senator Feingold 

and Senator Hatch. I appreciate this opportunity to address you 

today. 

Since the advent of the Internet, the pornography industry has 

profited from an unprecedented proximity to the home, work and 

school environments. Consequently, couples, families and individuals of all ages are being impacted by pornography in new and 

often devastating ways. 

Although many parents work diligently to protect their family 

from sexually explicit material, research funded by Congress has 

shown Internet pornography to be ‘‘very intrusive.’’ Additionally, 

we know that a variety of fraudulent, illegal and unethical practices are used to attract new customers and eroticize attitudes that 

undermine public health and safety. This profit-driven assault jeopardizes the well-being of our youth and violates the privacy of those 

who wish not to be exposed. 

12

Leading experts in the field of sexual addictions contend online 

sexual activity is ‘‘a hidden public health hazard exploding, in part 

because very few are recognizing it as such or taking it seriously.’’

Research reveals many systemic effects of Internet pornography 

that are undermining an already vulnerable culture of marriage 

and family. Even more disturbing is the fact that the first Internet 

generations have not reached full maturity, so the upper limits of 

this impact have yet to be realized. Furthermore, the numerous 

negative effects research point to are extremely difficult, if not impossible, for individual citizens and families to combat on their 

own. 

This testimony is not rooted in anecdotal accounts or personal 

views, but rather, in peer-reviewed findings in published journal 

articles, academic journal articles. I have submitted a review of 

this research to the Committee and request that it be included in 

the record. 

Chairman BROWNBACK. Without objection. 

Ms. MANNING. The marital relationship is a logical point of impact to examine because it is the foundational family unit, and a 

sexual union easily destabilized by sexual influences outside the 

marital contract. Moreover, research indicates the majority of 

Internet users are married, and the majority seeking help for problematic sexual behavior are married, heterosexual males. The research indicates pornography consumption is associated with the 

following six trends, among others: 

1. Increased marital distress and risk of separation and divorce; 

2. Decreased marital intimacy and sexual satisfaction; 

3. Infidelity; 

4. Increased appetite for more graphic types of pornography and 

sexual activity associated with abusive, illegal and unsafe practices; 

5. Devaluation of monogamy, marriage and child rearing; and 

6. An increasing number of people struggling with compulsive 

and addictive sexual behavior. 

These trends reflect a cluster of symptoms which undermine the 

foundation upon which successful marriages and families are established. 

While the marital bond may be the most vulnerable relationship 

to Internet pornography, children and adolescents are by far the 

most vulnerable audience. When a child lives in a home where an 

adult is consuming pornography, he or she encounters to following 

four risks: 

1. Decreased parental time and attention; 

2. Increased risk of encountering pornographic material themselves; 

3. Increase risk of parental separation and divorce; and 

4. Increased risk of parental job loss and financial strain. 

When a child or adolescent is directly exposed, the following effects have been documented: 

1. Lasting negative or traumatic emotional responses; 

2. Earlier onset of first sexual intercourse, thereby increasing 

the risk of STDs over the lifespan; 

13

3. The belief that superior sexual satisfaction is attainable without having affection for one’s partner, thereby reinforcing the 

commoditization of sex and the objectification of humans; 

4. The belief that being married of having a family are unattractive prospects; 

5. Increased risk for developing sexual compulsions and addictive behavior; 

6. Increased risk of exposure to incorrect information about 

human sexuality long before a minor is able to process and 

contextualize this information in the ways an adult brain could; 

and 

7. Overestimating the prevalence of less common practices such 

as group sex, bestiality and sadomasochistic activity. 

Because the United States is ranked among the top producers 

and consumers of pornography globally, the U.S. Government has 

a unique opportunity to take a lead in addressing this issue and 

the related harm. This leadership could unfold in a variety of ways. 

For example, educating the public about the risks of pornography 

use, similar to how we do with smoking or other drugs; supporting 

research that examines aspects of Internet pornography currently 

unknown; allocating resources to enforce laws already in place; and 

last, legally implement technological solutions that separate Internet content, allowing consumers to choose the type of legal content 

they wish to have access to. 

In closing, I am convinced Internet pornography is grooming 

young generations of Americans in such a way that their chances 

of enjoying healthy and enduring relationships are handicapped. I 

hope this Committee will carefully consider measures that will reduce the harm associated with Internet pornography. 

I thank the Committee for this opportunity to testify and welcome your questions. 

[The prepared statement of Ms. Manning appears as a submission for the record.] 

Chairman BROWNBACK. Thank you, Ms. Manning. Succinct testimony. 

Ms. Harris. 

STATEMENT OF LESLIE HARRIS, SENIOR CONSULTANT AND 

EXECUTIVE DIRECTOR DESIGNEE, CENTER FOR DEMOCRACY AND TECHNOLOGY, WASHINGTON, D.C. 

Ms. HARRIS. Mr. Chairman, Senator Feingold, Senator Hatch, 

thank you for permitting the Center for Democracy and Technology 

to testify today. 

CDT is a nonprofit public interest organization that was founded 

in 1994 in the early days of the Internet to promote democratic values and individual liberties in a digital age. We are guided by a 

vision of the Internet as open, global, decentralized, and most important for our purposes, user controlled. 

A discussion of pornography inevitably raises a question about 

the availability of content on the Internet and how to best achieve 

the important goal of protecting children from such material. 

As Professor Smolla has explained, some of this material that is 

obscene, that is child pornography, that is illegal, can be prosVerDate 0ct 09 2002 08:56 Mar 02, 2006 Jkt 025923 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\25923.TXT SJUD4 PsN: CMORC
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ecuted, and indeed, in the Communications Decency Act, the only 

surviving provision in that Act directly relates to obscenity. 

The more difficult question perhaps is how to deal with material 

that is constitutionally protected, and CDT has long cautioned 

against overreaching laws which ultimately prove unconstitutional 

and fail to provide any meaningful protection to children. At the 

same time, the organization has been on the forefront of efforts to 

use new technologies to empower parents to guide their children’s 

online experience. We took a lead role in creating GetNetWise, a 

user friendly resource that was created by the Internet Education 

Fund, that helps parents be no more than one click away from all 

the tools and resources that they need to make informed decisions 

about their children’s Internet experience. And in the last year that 

site has over 200,000 unique visitors. 

The President of our organization, Jerry Berman, served on the 

COPA Commission. That Commission was mandated as part of the 

Children’s Online Protection Act. One of two blue ribbon panels—

the other being a study this Congress mandated at the National 

Academy of Science led by former Attorney General Richard 

Thornburgh—directed to investigate how to best protect children 

online. 

I want to briefly review the findings and lessons learned from 

those two panels. Both were panels of prominent people with diverse expertise from across the political spectrum, and both concluded that the most effective way to protect children online is 

through a combination of education for both parents and children, 

parental involvement, and choice enabled by filtering and technology tools, a strategy commonly known as user empowerment. 

Those two studies, the COPA Commission was specifically asked 

to identify technological methods or other tools if any to help reduce access to minors to material that was harmful to minors. In 

the National Academy of Science study, which was a longer and 

deeper study, was a study of computer-based technologies and 

other approaches to the problem of availability of pornographic materials to children on the Internet. That study was more than two 

years in the making and it was released. The study, I believe, was 

entitled ‘‘Youth, Pornography and the Internet’’ in May 2002. I ask 

that that study be put in the record. 

Chairman BROWNBACK. Without objection. 

Ms. HARRIS. The key conclusions of the two reports are strikingly 

similar. First—and I think this is critical in terms of thinking 

about policymaking—that the global nature of the Internet, that 

criminal laws and other direct regulation of content that is inappropriate for minors, is likely to be ineffective; and second, that 

education and parental empowerment with filtering and other technology tools are far more effective than criminal law. 

What I am saying here is that technology can be part of the solution, not just part of the problem. Both reports found that most of 

the commercial websites that are offering sexually explicit material 

are located outside the United States, and I think those numbers 

have grown in the time since this study was published. The National Academy concluded, and I will quote here, ‘‘The primary reliance on a regulatory approach is unwise.’’

15

Both reports found filtering and blocking technologies are more 

effective for protecting children. Both believe that ‘‘the most important finding’’—and I quote the Thornburgh Committee here—‘‘of 

the Committee is that developing in children and youth an ethic of 

responsible choice and skills for appropriate behavior is 

foundational for all efforts to protect them.’’ And also that technology tools, I quote, ‘‘such as filters, can provide parents and other 

responsible adults with additional choices as to how best fulfill 

their responsibilities.’’

And critically, the Thornburgh Report suggested that one has to 

look beyond criminal laws for Government and public policy actions 

that might protect children, including concrete governmental action 

to promote Internet media literacy, educational strategies and support of parents’ voluntary efforts to employ technological solutions. 

Importantly, both studies were endorsing the use of filters and 

empowerment technology by end users, parents, care givers, not by 

governments or third party intermediaries by mandates. As these 

studies acknowledge, these tools are imprecise and often overbroad, 

often block illegal and constitutionally protected material at the 

same time, but in the hands of families these are the least restrictive means of furthering the Government’s interest in shielding 

children. In the hands of Government they quickly become censorship. 

We do have some new challenges, and one of those new challenges is plainly convergence. As the Internet begins to converge 

with technologies like cable television, cellular phone, MP3 players 

and to provide a wide range of content across platforms, we do 

have new questions arising. At the same time the tools are themselves evolving to meet those challenges. Just this week, CTIA, the 

trade association for the wireless industry, announced new wireless 

content guidelines and a commitment to implement Internet content access control technologies that can empower parents to control the types of content that can be accessed over wireless phones 

and other devices. So if content is moving to technologies, parental 

empowerment technologies are spreading with it. 

There are new challenges. One of those new challenges is ratings, a concern that multiple ratings of different kinds of content 

on different kinds of platforms start to converge, that that will 

cause confusion. Another concern is unrated material as more and 

more people add their content to the Web, it may become more difficult for user empowerment technologies to be able to access and 

make decisions about what to block and what not to block. The 

Internet Education Fund is beginning a new initiative to try to rationalize those differing rating systems and user empowerment 

tools, and work with industry and other stakeholders to explore 

ways to ensure that the rating schemes easily map to new nontraditional media outlets, and that content creators of all type encode their material in a way that can be accessed by user empowerment tools. 

Chairman BROWNBACK. Ms. Harris, if we could wrap the testimony up, I would appreciate that. 

Ms. HARRIS. I am going to stop right now. 

16

I look forward to working with the Committee on these and other 

measures that will support the user empowerment approach to protecting kids online. 

[The prepared statement of Ms. Harris appears as a submission 

for the record.] 

Chairman BROWNBACK. Thank you very much. 

Mr. Whidden. 

STATEMENT OF RICHARD R. WHIDDEN, JR., EXECUTIVE DIRECTOR AND SENIOR COUNSEL, NATIONAL LAW CENTER 

FOR CHILDREN AND FAMILIES, FAIRFAX, VIRGINIA 

Mr. WHIDDEN. Senator Brownback, Senator Feingold, good afternoon. My name is Richard Whidden, and I am the Executive Director and Senior Counsel for the National Law Center for Children 

and Families. I am honored to be called to testify today. I will discuss briefly how Congress, and in appropriate cases, the States, 

have compelling interests in regulating the material that we are 

discussing today. 

I should preface my comments by outlining the well-established 

interests that the State has in regulating obscenity. In the Supreme Court’s prior decision, Paris Adult Theater 1, the Supreme 

Court held that obscene material does not acquire immunity from 

State regulation simply because it is exhibited to consenting adults. 

The Court discussed in that case at length the numerous State interests, including interests of the public and the quality of life, the 

tone of commerce in the great city centers, public safety that justify 

regulation in addition to the States’ interest in protecting children 

and what was referred to as the unwilling adult viewer. 

The Court in that case further held that the obvious prurient nature of the material was sufficient basis in and of itself to determine whether the material was obscene, so that expert testimony 

in the prosecution of these cases was not required to prove obscenity. 

This decision had the effect of allowing Government to regulate 

obscenity without having to rely upon onerous levels of review in 

every investigation or prosecution commenced by the Government. 

It is further that the Government has a compelling interest in 

protecting children from exposure to sexually oriented materials. In 

1968, the Supreme Court in Ginsberg v. New York upheld a New 

York law prohibiting the sale of sexually explicit materials to those 

under 18 regardless of whether or not that material would be considered obscene for adults. The Court opined, and I quote from the 

decision, ‘‘The well-being of its children is of course a subject within 

the State’s constitutional power to regulate.’’ It also found that the 

State had an interest in creating law supporting parents, teachers 

and others with a responsibility for children’s well being, as well 

as an independent interest in maintaining the well being of youth. 

According to the Court in Ginsberg, the quantum of harm required to justify State action was minimal, so long as the Government demonstrated that the material was harmful to minors, and 

therefore, not constitutionally protected expression. In support of 

its conclusion, the Court cited studies prior to 1968 demonstrating 

that pornography was harmful to minors. 

17

It appears beyond doubt that the harms of obscenity recognized 

by the Court in Ginsberg decades ago has been greatly amplified 

in today’s environment. When Ginsberg was decided in 1968, the 

Internet was a figment of science fiction writers’ imaginations, persons who sought to obtain obscene materials could obtain it in a 

relatively few places. Today obscene materials are easily accessible 

to us, and therefore, to our children, on our home computers, 

through those computers in classroom, their wireless technology devices as that develops and converges in the future, as Ms. Harris 

alluded to. 

Obscene materials are no longer limited to the proverbial plain 

brown wrapper. The accessibility, affordability and anonymity of 

the Internet, I submit, in my opinion, has had an adverse effect on 

our children and families in addition to the great things that the 

Internet has provided. 

Congress has taken several steps in the previous years to address these harms, and they have been alluded to previously. The 

Children’s Internet Protection Act, otherwise known as CIPA, was 

upheld as a legitimate exercise of Federal funding discretion. Specifically, the Court held that Congress could fund library Internet 

access on the condition that libraries adopt Internet filtering policies. 

On a preliminary injunction in the Ashcroft v. ACLU case decided in 2004, the Court held the Child Online Protection Act unconstitutional because of the record before the Court at that time 

did not show it as the least restrictive alternative under First 

Amendment analysis. However, it is critical to note that the Court 

in that case specifically said that Congress could regulate the 

Internet to prevent minors from gaining access to harmful materials. Indeed, that case is now back on remand to the lower court 

for further findings with respect to the technology, which has 

changed since that original court case was decided. 

It has also been established that the law may address the methods of distribution of pornography. Justice Sandra Day O’Connor, 

several years ago, wrote about the regulation of Internet pornography in a concurring and dissenting opinion, in a way that is analogous to the zoning laws that local communities can adopt, allowing for the segregation, if you will, of harmful material. Specifically 

in those cases, Government may address the secondary impacts 

and secondary effects of pornography on children and family in the 

time, place and manner of that distribution. However, the Internet 

that Justice O’Connor referred to was the relatively nascent Internet of 1997. In her discussion, she lamented the lack of technology 

available at that time to empower parents to protect their children, 

suggesting that technology could provide that ability in the future. 

Investigating technological capabilities and encouraging the development of new technologies that can help parents should be encouraged by Congress and this Committee. 

I submit Congress and the States should consider the following: 

First, Government should encourage research concerning the effects of pornography on children and families, not only what has 

been alluded to here, but also what Senator Brownback alluded to 

earlier on research on this material and the effects of it on the 

human brain and its addictive nature, should be continued; 

18

Second, Government should foster the development of technological answers that will allow families to adequately protect their 

children while they use the Internet; 

Third, Congress should create legislation which allows parents to 

hold illegal pornography distributors of illegal pornography responsible for harm done to children; and 

Fourth, Government should create legislation that would aid in 

keeping sexual material away from sexual predators who utilize 

that material to groom victims for abuse. 

I want to thank the Committee for this opportunity to testify 

today on this issue so important to families and society. 

[The prepared statement of Mr. Whidden appears as a submission for the record.] 

Chairman BROWNBACK. Thank you. Let us run the clock at 5 

minutes and we will bounce back and forth here if that is okay 

with Senator Feingold. 

Mr. Whidden, I want to ask you on that third point that you are 

suggesting here, you are suggesting by that that we establish a 

procedure where parents can sue pornography distributors for damages to their children? 

Mr. WHIDDEN. An Act that was considered by Congress in the 

early 1990s would have provided for civil laws of action with respect to if a child was abused, for example, and there was shown 

to be a causative link between some pornography that the abuser 

saw, that potentially that the pornography distributor could be 

held liable in a civil action. That was considered by Congress I believe in the early 1990s. Such legislation should again be looked at 

and see if that is a viable option. 

Chairman BROWNBACK. Dean Smolla, does that strike any First 

Amendment issues to you, just on first blush? Obviously you are 

just hearing about this. 

Mr. SMOLLA. Sure. Well, you would have to first know whether 

the material that was the alleged cause of the abuse was constitutionally protected or not constitutionally protected. So if it were obscene material or if it were child pornography and was not constitutionally protected anyway, then creating a civil remedy for 

harms that flow from it would probably not violate the First 

Amendment. That is my initial reaction. 

But if the material were soft-core pornography of the kind that 

would normally be protected, you would have major First Amendment difficulties, and it would be similar to attempts to go after a 

rap group because an explicit lyric causes someone to engage in a 

drive-by shooting, that sort of thing. That courts have been almost 

entirely unwilling to allow liability in that sort of situation. 

Chairman BROWNBACK. But if it is material—and you have suggested that much of the material today would be prosecutable 

under Miller, so it would be any material that would be prosecutable under Miller you would think would be subject to civil exposure? 

Mr. SMOLLA. If you can put someone in jail for the material, then 

by hypothesis you could have a civil remedy for harm that was 

caused by it, assuming you could, you know, satisfy ordinary principles of tort law and causation and so on. I do not see any conVerDate 0ct 09 2002 08:56 Mar 02, 2006 Jkt 025923 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\25923.TXT SJUD4 PsN: CMORC
19

stitutional impediment to that if it is otherwise unprotected material. 

Chairman BROWNBACK. Ms. Paul, you have been conducting a 

nationwide town hall meeting on this topic with your book. I am 

guessing you have done a lot of radio shows and different things. 

You talk about the effects of it, and when I read just the summary, 

as I said, it was just horrific, the things you were talking about, 

both you and Ms. Manning. You do not particularly recommend 

specific actions, and I realize that is not your role and that is not 

why we have you here. But have you heard any particular ones as 

you have been out across the country that strike you as making 

good sense of something we could on this topic? 

Ms. PAUL. I think you are right, I will defer to Ms. Manning and 

to Mr. Whidden on that question. But I would say that those who 

often defend the right of pornography as free speech, often refer to 

pornography as sexually educational materials, and I think that 

that is a disingenuous position to take considering the nature of 

pornography that is out there and the kind of lessons that that pornography imparts, particularly to young people. So I think that the 

kind of free speech that could be fostered certainly is awareness 

and education about the harmful effects of pornography. 

In this country I think prior to recent efforts, from films like 

‘‘Supersize Me’’ and books like ‘‘Fast Food Nation,’’ people looked 

at a Chicken McNugget, for example, and they thought, well, you 

know, it is probably not that good for me, but they did not know 

everything, all the harmful ingredients in a Chicken McNugget and 

they could then make a more informed decision about whether to 

consume it. 

I think that in this country we tend to look at pornography as 

harmless entertainment and that there is very little in terms of a 

public education campaign or anything in schools or in the culture 

overall that shows pornography really for what it is, and highlights 

the harmful effects that it has, and I think that is the kind of free 

speech that certainly should be encouraged. 

Chairman BROWNBACK. So you would advocate really just a very 

strong public awareness campaign, of more books like your 

‘‘Pornified’’ being out, and more discussion of this taking place 

across the country? 

Ms. PAUL. Well, I certainly think it would be a start. I mean I 

think that, again, the public discourse in this country in popular 

culture particularly, tends to avoid any criticism of pornography, 

and any criticism that is out there is immediately written off, as 

Senator Hatch said earlier, as something that is prudish or uptight 

or somehow irrelevant, and I think that that really ignores the reality of what pornography is, and how much it affects those who 

use it and those around people who use it. So I wrote my book—

obviously as a journalist I am very interested in free speech, and 

I wrote my book in order to get that message out there and to really show the harm that pornography does. 

Chairman BROWNBACK. What has been the reception for your 

book? 

Ms. PAUL. Well, obviously, there has been some very nice reception, particularly among people who have suffered at the hands of 

pornography, that there is some kind of recognition that is finally 

20

get out there of the problem, and from those who become addicted 

or compulsive about pornography, they are particularly grateful 

that this message has gotten a little bit mainstream attention. 

I would say that it has been disappointing to me that there has 

been a very harsh critical reaction from people who immediately 

assume, again, that I am somehow going to call for a ban on pornography or impinge on free speech, and the criticisms, again, take 

the form of what has traditionally been the pornographer’s response, which is ad hominem attacks. Certainly I have been called 

a prude, a reactionary, or some kind of sexually unsatisfied person 

who is just out to condemn men. It is unfortunate, but that—

Chairman BROWNBACK. What have people that are addicted or 

have been addicted to pornography say to you? 

Ms. PAUL. For many of them it is difficult to read about it, obviously. I note in the book that I used a lot of the language that men 

who use pornography tend to employ and describe some of the pornography, and obviously, that is very hard for someone who has a 

compulsive problem with pornography to look at. For them it is 

hard to even turn on the television. I mean you have Victoria’s Secret prime time specials, that for them trigger a response similar 

to pornography and can tumble them back into it. So to read it is 

difficult. 

But they have been tremendously grateful that the problem has 

been acknowledged. As you may well know, the question of whether pornography is addictive is still controversial in psychiatric circles and is not part of the DSM, and so they struggle with simply 

getting recognition that their problem is legitimate. 

Chairman BROWNBACK. Ms. Manning, you had something to add? 

Ms. MANNING. Yes. I have listened intently to discussions about 

freedom of speech and expression, and I need to enter into this 

hearing the view that this is not just a simple form and benign 

form of expression, but rather, a potentially addictive substance. 

And I believe the social science and neuroscience is gradually 

building the case for that to be well established. 

As a practicing clinician that works with sex addicts, spouses of 

sex addicts, and currently just 2 days ago working with my teenager’s group for porn addicts, I can tell you this is not a simply 

form of expression. One of the fundamental differences that make 

it so is people watch a movie, read a book, listen to music, but they 

masturbate to pornography, and in that difference you have a different stimulation to the brain. It has a fundamental difference 

physiologically on people with the neurotransmitters and hormones 

that are activated, approximately 14 of them, and in a split second, 

three-tenths of a second, we know that the material starts a chain 

reaction in the body. That is different than other forms of media. 

This acts very quickly, and there have been some experts that have 

even argued that in and of itself overrides informed consent when 

encountering this material. 

When you work in the throes, in the trenches of people dealing 

with this on an out-of-control basis, I would respectfully disagree 

that filters and content watches are the way to go. One hundred 

percent of the sex addicts in my groups—and I have worked with 

close to 100 of them—the youth in the group that I work with, all 

of them have filters on their computers. We know from research 

21

that there is a 12 percent increase in likelihood of using Internet 

porn for every one unit of computer knowledge. We have technologically savvy kids these days. Filters can be circumvented, rerouted, passwords broken. These are smart kids, and the industry 

is smart. Filters can lull us into having a false sense of security 

that this is protecting our families. 

I meet with parents that are concerned weekly who are putting 

these things on their computers, and still this is an issue. 

Chairman BROWNBACK. Thank you. I went way over my time. 

So, Senator, please use yours freely. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Dean Smolla, thank you for being with us today. As I understand 

it there is a pretty stark analytical difference between how the 

First Amendment creates laws that limit the access of adults to 

sexually explicit content and those that limit the access of children 

to those materials. It seems obvious that materials that are appropriate for adults might not be something we want to expose children to. Can you go through the First Amendment distinction between these two scenarios and whether the compelling Government 

interest test, which you talked about some, has been applied differently depending on whether law regulates material for adults or 

for children? 

Mr. SMOLLA. Senator, I think just to reiterate the basic framework that I went through earlier, there is actually a convergence 

between Mr. Whidden’s testimony and mine in this sense. It is true 

that Miller and Paris Adult Theater, which are still the two cornerstone First Amendment decisions that govern this area, talked 

about the social harms that justify not giving obscene speech First 

Amendment protection. But then those cases struck the balance for 

us. Those cases said: That is the reason why we do not protect obscenity, now here is how you define ‘‘obscenity.’’

Much of the kind of thing that Ms. Manning is talking about is 

already reachable under the Miller standard. Presumably, no one 

wants to ban, for example, erotic material that is part of a serious 

artistic, or political, or religious or scientific presentation. That is 

one of the bulwarks of the Miller standard, that if there is serious 

redeeming value we do not treat just as pornography, we treat it 

as a serious form of expression. 

If it is devoid of that, if it does not have serious value, and it 

appeals to the prurient interest, which does not mean much other 

than it is sexy, it is erotic, and it is patently offensive under local 

community standards, you can already go after that. The probability is that without changing one word of one law anywhere, if 

you doubled, tripled, multiplied ten-fold the prosecutorial efforts, 

you would see results. No doubt about it. That either means you 

take existing budgets, and prosecutors do not prosecute the crimes 

they are doing now and shift it over to efforts to go after obscene 

material, or legislative bodies appropriate more money to give them 

the tools to do it. The law does not need changing so much as the 

social will to go after it. 

Children are a different matter, Senator, and that has been key 

to what many, many people have said, and I think there is agreement there. But again, I would submit that the tools are already 

there, the tools to deal with child pornography, the tools to deal 

22

with predators are there legally. What you need are the resources 

to go after it. 

Senator FEINGOLD. Ms. Harris, I have long been concerned about, 

as I indicated before, Congress passing laws with laudable goals 

but that have little chance of surviving constitutional challenge. As 

I said before, it is a waste of time and resources, yet it seems to 

be the road we have gone down time and time again. At the same 

time there is no question that we are dealing with difficult problems. So I was interested in your testimony pointing to well-respected commissions that have argued that instead of creating new 

crimes, which we have had such trouble trying to do, we might consider doing what we can to help support parental efforts to educate 

and empower themselves and their children regarding appropriate 

and safe Internet usage. 

As technology advances, more and more tools such as filtering 

software are available to help parents and other responsible adults 

protect children, and there are numerous Web resources. Indeed 

the Supreme Court itself has suggested that this type of approach 

is constitutionally preferable. 

From a practical and legal perspective, is this a better way to address these problems, particularly with regard to the Internet? 

Ms. HARRIS. I think it is, and I think not only have these two 

commissions done serious research and come back with that conclusion, but were not taking those studies seriously. I think that in 

a 21st century environment the literacies for families about how to 

manage content on the Internet, how to control their children’s 

Internet use, is not optional. Knowing how to do these things are 

not optional any more. And that a large part of agenda really needs 

to be moving people to becoming wise users of these resources. 

And I continue to believe—I do understand that an individual 

child may be able to get around a filter. I mean we cannot do public policies for the single person who somehow can subvert those 

policies. But overall, we have these tools, they are getting better. 

We need to collectively make a commitment to make sure those 

tools travel with us as digital technologies converge. We have some 

very thorny questions to make those technologies work in a new 

environment, and we need to put some energy and time into that 

agenda, because ultimately it may be the only constitutional agenda that we have in this area. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Chairman BROWNBACK. Ms. Manning, I want to pursue this a little further with you and start it with noting that there was an article released today stating that complaints about indecency and obscenity to the FCC have risen four-fold in the last quarter of this 

year, and the numbers have gone from 6,161 to 26,185 complaints 

to FCC. This is on top of the study that was cited by Senator Hatch 

about the substantial increase of sexual material on over-the-air 

broadcasts, because the FCC only regulates over-the-air public 

broadcast, radio, television. We will submit the article for the 

record. 

I am curious from what you describe, when you say that somebody is addicted to this material, what happens when they see it? 

You are saying filters do not work because they know of some way 

to get around the filter. Is it triggered when they see something on 

23

television, and then we are off to the races another way, or how 

does this work? 

Ms. MANNING. It depends on the individual and the types of material that they are drawn to or tempted by. I agree with Dean 

Smolla that we tend to treat pornography as this one thing, and 

there is a range of categories within that. People that are drawn 

to child pornography may not necessarily be triggered by heterosexual content that they see, but there are triggers in the day-today world that we live in. 

How the addiction works, in my view, and there is research to 

back this up, is that it tends to escalate over time, and we know 

that the Internet has rapidly increased the rate at which people 

can develop compulsive and addictive behaviors. As well, experts in 

that field know that the Internet has attracted users that may 

never have had a problem with pornography prior to this era, so 

the base of consumers is rapidly growing as well as female consumers. We now have a situation where up to 30 percent of consumers online are female. That was not the case years ago. 

Chairman BROWNBACK. Thirty percent of pornography consumers 

online are female? 

Ms. MANNING. Online. So we see escalation over time, greater 

tolerance to this material where they seek harder and coarser material over time. There is also withdrawal symptoms that can occur, 

insomnia, shaking, similar to what we see with withdrawals in 

other types of drug usage. That also leads to greater risk taking 

where these people are not using good judgment with jobs, family 

relationships. Many of my clients have lost multiple jobs, presidents of companies, high-level executives—

Chairman BROWNBACK. Of being addicted to pornography? 

Ms. MANNING. Being addicted to pornography. This also brings 

in liability issues for corporations, where we know a good bulk of 

pornography is being consumed during the working day. That 

brings in sexual harassment questions into the workplace, decreased productivity, et cetera, et cetera. So the addictive elements 

of this, yes, there is not consensus on this in the entire mental 

health and medical community. However, for those of us that are 

working in this field, I must state that five, six years ago I was 

somewhat indifferent on this issue, and it was not until I started 

practicing clinically and seeing this devastation that I quickly became convinced this is not just being conditioned to be overly 

aroused by material. 

There is an addictive quality to this that we need to be paying 

attention to, and that is a distinction in the freedom of speech arguments and debate that I think needs to catch up with the Internet era. This is a different debate than the previous era of magazines, film, that had still images or images that you could not 

interact with. This is highly interactive, powerful emotionally, loaded content that affects the brain very differently than still images. 

Chairman BROWNBACK. Ms. Paul, I want to get you into this, on 

particularly the issue of marital relations. The data seem to be 

building pretty substantially that the pornography is negatively affecting a number of marriages in this country. It is coming from 

divorce lawyers, family law practitioners, others. Is that something 

you found consistent in your interview and survey? 

24

Ms. PAUL. Yes, absolutely. I mean when you talk to men, for example, about their use of pornography, they will often openly admit 

that if they come home at the end of the day and they have a 

choice between having sexual relations with their wives or going 

online and masturbating to the computer, if they go to their wife, 

well, just practically speaking, they have to make sure that they 

have done all the chores around the house they were supposed to 

do. They need to have a half an hour conversation about what they 

did that day. It often takes a longer time for a relationship with 

a real person than it does to masturbate to the computer, and you 

are talking about an hour and a half, something that involves communicating, something that involves taking part in the family and 

in the household, versus 5 minutes to go online. 

Well, a lot of men say, quite frankly, ‘‘I would rather just go online,’’ and so—

Chairman BROWNBACK. They said that to you in the interviews 

that you did? 

Ms. PAUL. Yes. ‘‘I would prefer to just go online. It is a lot easier. 

It is a lot less stressful. It is a lot more fulfilling in certain ways 

than to go and to be with my wife.’’ What happens is you create 

a vicious cycle. 

Now, I must state that every man, almost every man, would say 

unequivocally, ‘‘Well, of course sex is preferable with a real person 

than with a computer.’’ That is in the abstract. But when it comes 

down to what they actually do, again, you get the cycle, well, it becomes a lot easier to go online to the computer. The more you do 

that, the less you are communicating with your wife, the less you 

are physically with your wife, and the wives notice this, and of 

course, they wonder, ‘‘Where is my husband? Why is he no longer 

interested in me?’’

When a wife discovers that a man is looking at pornography, her 

first reaction is to feel betrayed. It feels like cheating even if it is 

not cheating in a legal sense. They feel that they have to compete 

with these women. How would you expect, say, a 45-year-old 

woman who has been married for 15 years and has 3 children, to 

compare herself with someone who is 20-years-old, surgically enhanced, airbrushed, and will online, in the pornography that is depicted online, do every single thing that the man would like her to 

do and behave in ways that she might not be comfortable with? It 

becomes extremely difficult for women to cope with that reality. 

Chairman BROWNBACK. Thus leading to more difficulty in the relationship. 

Ms. PAUL. Exactly. 

Chairman BROWNBACK. And more divorce in its impact. 

Ms. PAUL. Exactly. I think that, just to build on what Ms. Manning was saying, there is a slippery slope where we tend to look 

at the pornography addicts and say, okay, that is a small slice of 

the population, but we cannot apply everything, we cannot speak 

about that as if everyone is going to become addicted the same way 

we cannot talk about alcohol in the sense that everyone is going 

to become an alcoholic. But there are men who openly say that 

they would never have had a problem with pornography if it had 

not been for the Internet. 

25

When I spoke with casual users, who were the majority of the 

people I interviewed, and asked them, ‘‘Do you think you ever could 

become addicted to pornography?’’ Most of them said they could. I 

do not think any of them would have said that before the Internet. 

Chairman BROWNBACK. Dean Smolla, I want to bring you into 

this then, and I am trying to build a bit of a factual case for you. 

I am sure you have seen this coming. Ms. Manning talks about specific settings of her clients. Ms. Paul talks about the setting. You 

know the level of divorce, the divorce lawyers, family law practitioners saying this is clearly growing in its impact. I believe the 

case is documented and is building. You say we have to hit a strict 

scrutiny standard that is like saying the theater is burning to be 

able to get at any further limitation on this, I believe if I am catching you correctly. If I am not, correct me. But also address this 

question. Are we getting to the point of evidence that a court would 

be willing to say this is enormously harmful; it has met the standard of the society of legislators being able to legislate and address 

this because of the documentation of its harm in society? 

Mr. SMOLLA. And I think that that is the heart of the matter, 

and my simple answer is no. So that you will not think that is the 

shrill, strident, free-speech answer, remember that the constitutional doctrine today, to put it very simply, divides the world between hard-core porn and soft-core. I mean if you just wanted to 

put it in simple language in terms of what Miller v. California

means, that is the division. 

And so if we have a kind of public health epidemic, if we have 

a new behavioral problem in the way that men and women relate, 

if there is an addictive quality to this because of the Internet that 

did not exist before, that does not change the constitutional standard. It may merely mean that we need more public health resources, more prosecutorial resources, more efforts under existing 

law. 

The heart of my testimony is, most of what is causing the kinds 

of behavioral dysfunction that these witnesses are talking about, 

which I think is strong evidence, most of what is causing that could 

be prosecuted almost certainly under the Miller standard. We are 

not talking about episodes of ‘‘Sex and the City.’’ We are not talking about the HBO series ‘‘Rome,’’ where there is an explicit sexual 

scene, but it is obviously a portrayal of history. We are talking for 

the most part about pretty crude, straightforward hard-core material, that depending on the jurisdiction—and this is the federalism 

issue, the law is you have to go community by community—depending on the jurisdiction, almost certainly you could reach it if there 

was the willpower to put the energy into it. 

I think, Senator, what I am saying is, if this is a public health 

problem of the nature that we are maybe beginning to perceive, 

then treat it as one and put the resources into that. Put the resources into counseling, into education and into existing criminal 

laws, and do not try to stretch the envelope of the First Amendment, where almost certainly, you just know almost certainly, you 

are going to get tremendous pushback from the courts. 

Chairman BROWNBACK. I am more attracted to this idea of allowing civil actions to move forward if you want to multiply your resources. 

26

Mr. SMOLLA. As an old plaintiff’s lawyer, Senator, I can see a lot 

of people liking that. 

Chairman BROWNBACK. I am singing to the choir here on that. 

Mr. SMOLLA. Does that multiply your resources here? 

Chairman BROWNBACK. It does. 

Mr. SMOLLA. If the case is building as you are hearing. 

Chairman BROWNBACK. This is the first hearing I have held on 

this topic, and it is not the first year I have been interested in it, 

because I have watched this develop and I have watched the evidence build on it, and we started sometime back on the Internet 

when these first started coming out because it seemed like the 

Internet really provided another whole venue here that we had not 

been used to. At first we were really raising more alarms to it than 

anything, but you are saying, well, I could see where your alarm 

could be accurate, but we do not have the evidence. 

Now we are years into this thing, and it seems to me, not only 

do we have the evidence, it is massive in its overarching impact, 

and that it is very international in its basis because of the nature 

of how the Internet works. 

Mr. SMOLLA. Senator, I think that just to quickly respond to the 

civil action idea, we have an analog, we have the law of libel which 

says that if you meet certain standards of causation, certain standards of intent, certain standards of First Amendment requirements 

that the material be false and defamatory and so on, a plaintiff can 

recover millions of dollars in damages for the harm to reputation 

and the emotion anguish caused by someone’s libelous speech. Because once you meet the constitutional definition of ‘‘libel’’ and the 

requisite intent requirements, there is no First Amendment protection. 

So by hypothesis—I mean one would want to research it and 

think it through and draft carefully—by hypothesis, if you limited 

the civil action to material that already satisfied the Miller standard, for example, or the child pornography standard governed by 

Osborn v. Ohio, if you had speech that already comes to you unprotected and you met standards of causation that would satisfy due 

process and so on, I see no constitutional impediment at the outset 

to doing it. 

Chairman BROWNBACK. Do you support the Department of Justice’s current efforts to increase prosecution in this field? 

Mr. SMOLLA. Absolutely. What they have done is they have said 

this is already a crime. It is a crime we have the constitutional 

power to go after. We have made an executive branch decision that 

we should put more resources into it. There are crimes we do not 

prosecute because we do not care, and then the behaviors follow. 

If as a society we care about going after truly hard-core material, 

then it is a perfectly appropriate executive decision to go for it. 

Chairman BROWNBACK. We are now getting reports of two types 

of pornography developing that then go into another subject I have 

worked on, of people, women being trafficked into the United 

States to do pornographic films, or of pornographic films being shot 

of women overseas, under age, and then the film brought back into 

here, which is probably the way the system is going to move to because it is far simpler to do that than to traffic the individuals into 

the country. I mean to me this is just one of the most vile things 

27

to see and to hear about, particularly since we have got so much 

human trafficking taking place now. The third leading income 

source for organized crime globally is trafficking. Most of it is centered around the sexual industries, prostitution. I cannot imagine 

the profit-making motive if you associate it now around pornography, the money that can be involved in this. 

How would you get at that nexus? Have any of you thought 

about that or have heard about this connection? 

[No response.] 

Chairman BROWNBACK. If any of you get a sense on it, this is one 

that I am hopeful that we are going to be able to prosecute aggressively to start off with under either the obscenity laws or under the 

trafficking laws, one way or the other. 

I want to thank the panel very much for being here, and your 

testimony and your work on this. I want to encourage you to continue to write and publish on this. I do think one of the key things 

we need to do is to have that campaign, like you were talking 

about. That is first and foremost. This is a noisy society, and the 

best thing often you can do is really try to get enough noise level 

built up that people are aware this is a problem and I need to do 

something about it, or watch so I do not slip into it myself, or people around me. So I appreciate the efforts to write and to study on 

this, and I appreciate the constitutional warnings. 

We have been around this track a couple of times trying to address it and have been overturned in court. So I am not trying to 

do, I do not want to do another action that is, okay, we go up and 

the court throws it out again. That is a futile activity and it does 

not serve anybody’s interest. So we want to try to get it right. 

The record will be left open for 7 days for submission of additional material that any of the individuals would like to submit. I 

will offer into the record now Ms. Paul’s book, ‘‘Pornified,’’ as well 

as Ms. Manning’s article on the impact of Internet pornography on 

marriage and the family. 

Again, I want thank you all for being here, and I want to thank 

you particularly for your work. I think that is a key area we need 

to get more people working in. 

The hearing is adjourned. 

[Whereupon, at 3:30 p.m., the Subcommittee was adjourned.] 

[Submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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