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S. HRG. 109–1023 

OBSCENITY PROSECUTION AND THE 

CONSTITUTION 

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 

MARCH 16, 2005 

Serial No. J–109–9 

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 

DAVID BROG, Staff Director 

MICHAEL O’NEILL, Chief Counsel 

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 

(III) 

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 ............. 14 

WITNESSES 

Destro, Robert A., Professor of Law, Columbus School of Law, Catholic University of America, Washington, D.C. ................................................................ 4 

Schauer, Frederick, Frank Stanton Professor of the First Amendment, John 

F. Kennedy School of Government, Harvard University, Cambridge, Massachusetts ................................................................................................................. 8 

Trueman, Patrick A., Senior Legal Counsel, Family Research Council, and 

former Chief, Child Exploitation and Obscenity Section, Department of 

Justice, Washington, D.C. ................................................................................... 6 

SUBMISSIONS FOR THE RECORD 

Destro, Robert A., Professor of Law, Columbus School of Law, Catholic University of America, Washington, D.C., statement ............................................. 17 

Schauer, Frederick, Frank Stanton Professor of the First Amendment, John 

F. Kennedy School of Government, Harvard University, Cambridge, Massachusetts, statement .............................................................................................. 25 

Trueman, Patrick A., Senior Legal Counsel, Family Research Council, and 

former Chief, Child Exploitation and Obscenity Section, Department of 

Justice, Washington, D.C., statement ................................................................ 31 

Wagner, William, Professor, and Director, Center for Ethics and Responsibility, Thomas M. Cooley Law School, Lansing, Michigan, statement ............ 37 

(1) 

OBSCENITY PROSECUTION AND THE 

CONSTITUTION 

WEDNESDAY, MARCH 16, 2005 

UNITED STATES SENATE, SUBCOMMITTEE ON CONSTITUTION, CIVIL RIGHTS AND

PROPERTY RIGHTS OF THE COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Subcommittee met, pursuant to notice, at 3:04 p.m., in Room 

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

Chairman of the Subcommittee, presiding. 

Present: Senators Brownback and Feingold. 

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

SENATOR FROM THE STATE OF KANSAS 

Chairman BROWNBACK. I will call the hearing to order. I want 

to welcome everybody to this first meeting of the Subcommittee on 

the Constitution, Civil Rights and Property Rights of the U.S. Senate Committee on Judiciary in this session of Congress. I hope to 

be holding a number of different hearings on various topics, but 

this is the first one that we are kicking off with and I do appreciate 

all of you joining us. 

And I would note that my colleague, the ranking member, Senator Feingold, I believe his amendment is actually up on the floor, 

is what I have been told, so he may be late, coming back and forth 

for this. Now, that situation may change, and if we hear differently, we will adjust. We may have to break into some of your 

testimony if he comes here at a particular time and he has to get 

back to the floor and I will try to accommodate any opening statement that he would make. 

The editor and publisher of Adult Video News, a journal of the 

pornography trade, stated recently that, quote, ‘‘It is scary how 

much money is made on porn,’’ end of quote, and this, there can 

be little debate. The porn industry has grown rapidly in the last 

decade. Part of the reason for this growth is that the nature of and 

access to sexually explicit material in the marketplace has been 

radically transformed and expanded. According to many legal scholars, another reason for the industry’s growth is a legal regime that 

has undermined the whole notion that illegal obscenity can be prosecuted. 

Indeed, just last month, Federal Judge Gary Lancaster of the 

Western District of Pennsylvania threw out a ten-count Justice Department indictment against Extreme Associates, purveyors of the 

most vile sort of pornography. The defendants were in the business 

of producing films that, according to one report, quote, ‘‘even porn 

2 

veterans find disturbing,’’ end of quote. A co-owner of Extreme Associates even boasted that the films, which depict rape, torture, and 

murder, represent, quote, ‘‘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 obscenity 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 due process, 

decisions from Roe, Lawrence, and others, and ruled that the statutes at issue violated an unwritten constitutional right to sexual 

privacy. Amazingly, even if such a right existed, it would not apply 

to the defendants, since they were producers and not consumers of 

the material. 

There was a reason why Judge Lancaster had to bypass First 

Amendment jurisprudence in reaching the results he wanted. Numerous First Amendment precedents distinguish between protected 

speech and illegal obscenity. For example, the Supreme Court held 

almost a half a century ago that, quote, ‘‘implicit in the history of 

the First Amendment is the rejection of obscenity as utterly without redeeming social importance.’’ 

Thirty years ago, the Court rejected the notion that, quote, ‘‘obscene, pornographic films acquire constitutional immunity from 

State regulation simply because they are exhibited for consenting 

adults only.’’ Rather, the Court specifically held that there are legitimate State interests at stake in stemming the tide of commercialized obscenity. It also has held that it to be categorically settled 

that obscene material is unprotected by the First Amendment. 

If the Extreme Associates decision stands, we will have gone from 

the flat statement of former Justice William Brennan, who advocated perhaps the most expansive vision of constitutional liberty of 

any Justice in Supreme Court history, that obscenity, quote, ‘‘was 

outside the protection intended for speech and press,’’ and we will 

be going to the notion that obscenity cannot constitutionally be 

prosecuted at all. 

Many constitutional scholars believe that blatant judicial activism, as exemplified in the Extreme Associates decision, has been responsible in large part for creating a climate in which the porn industry has flourished. I was pleased to learn that the Department 

of Justice is appealing Judge Lancaster’s ruling since the ruling effectively would gut decades of precedent. 

I also have been encouraged by recent statements by Attorney 

General Gonzales that he would make it a top priority to vigorously 

prosecute those who violate Federal obscenity statutes. In a recent 

speech to the Hoover Institute, the Attorney General stated, ‘‘Another area where I will continue to advance the cause of justice and 

human dignity is in the aggressive prosecution of purveyors of obscene materials.’’ 

This renewed effort is particularly important since mainstream 

American companies seem increasingly willing to associate themselves with pornography, even hard-core pornography. Over half of 

all pay-per-view movies in hotels across the country are now pornographic. According to recent reports, Adelphia Communications, reVerDate Aug 31 2005 11:34 Oct 20, 2008 Jkt 043914 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44825.TXT SJUD1 PsN: CMORC
3 

versing a longstanding policy, just became the first leading cable 

operator to operate the most explicit category of hard-core porn. 

The Los Angeles Times writes that, quote, ‘‘Adelphia joins a marketplace already teeming with ways to procure hard-core sexual 

content.’’ 

The Internet has become a carnalcopia with graphic images, videos, and cartoons. EchoStar Communications Corporation, the nation’s second-ranking satellite TV provider, has offered triple-X programming for several years on its DISH Network. Satellite leader 

Direct TV Group, Incorporated, peddles fare that falls just shy of 

triple-X. 

The explosion of sexually explicit material is not a problem that 

exists in a vacuum of constitutional theory. Government has a compelling and real life interest in the matter because of porn’s adverse effects on individuals, families, and communities in the forms 

of criminality and addiction and family breakup. 

Several months ago, I chaired a hearing where scientists and 

psychologists testified about the growing problem of addiction to 

sexually explicit material, which is destroying individuals and their 

families, adversely affecting productivity at work and negatively 

impacting healthy child development. Four years ago, a scientific 

survey found that six percent of respondents met the criteria for 

a full-fledged pornography addiction. Other estimates of the percentage of the population suffering from an addiction to porn are 

considerably higher. 

Seventy-two million Internet users visit pornographic websites 

per year. One expert in cyber addiction asserts that 15 percent of 

online porn addicts develop sexual behavior that disrupts their 

lives. She writes that, quote, ‘‘The Internet is the crack cocaine of 

sexual addiction.’’ 

The expanded reach and pervasiveness of pornography also affects our families and our children. According to recent reports, one 

in five children ages ten to 17 have received a sexual solicitation 

over the Internet, and nine out of ten children ages eight to 16 who 

have Internet access have viewed porn websites, usually in the 

course of looking up information for homework. 

There is strong evidence that marriages are also adversely affected by addiction to pornography. At a recent meeting of the 

American Academy of Matrimonial Lawyers, two-thirds of the divorce lawyers who attended said that excessive interest in online 

pornography played a significant role in divorces in the past year. 

Pornography by itself, not as part of an accusation of adultery, has 

begun to arise with alarming frequency in divorce and custody proceedings, according to divorce experts. Pornography had an almost 

non-existent role in divorce just seven or eight years ago. Roughly 

65 percent of the people who visit the Center for Online Addiction 

do so because of martial problems created by pornography, according to the founder of the Center. 

And now just recently, we have out of Southern California examples of human trafficking of individuals trafficked into the porn industry for use by the porn industry. 

These and others demonstrating effects provide an important 

real-life backdrop for this hearing, which will emphasize two wellestablished legal principles. First is that the Supreme Court has 

4 

clearly and repeatedly held that obscenity does not merit First 

Amendment protection. The second is that the government has a 

legitimate and constitutionally valid interest in regulating obscenity through, among other things, enforcement of relevant Federal 

and State statutes. We also will hear the opposing view, that the 

First, and for the first time, 14th Amendment protections apply to 

obscene material that has traditionally been seen as falling outside 

of those protections. 

We have a distinguished panel to speak today. First is Professor 

Robert Destro of Catholic University of America’s Columbus School 

of Law. Professor Destro is Co-Director and founder of the Interdisciplinary Program in Law and Religion and he previously served 

as Commissioner on the U.S. Commission on Civil Rights. 

Second is Patrick Trueman, Senior Legal Counsel at Family Research Council. Mr. Trueman previously has served as the Chief of 

the Child Exploitation and Obscenity Section of the Criminal Division at the U.S. Department of Justice. 

And our final panelist is Professor Frederick Schauer of Harvard 

University’s Kennedy School of Government. Professor Schauer is 

a former Professor of Law at the University of Michigan, Chair of 

the Section on Constitutional Law of the Association of American 

Law Schools, and Vice President of the American Society for Political and Legal Philosophy. 

It is an excellent panel on a current and tough topic. Gentlemen, 

thank you very much for being here today. As I mentioned, if Senator Feingold comes in, we may have to break into your testimony 

to hear his opening statement. We will just play that as it goes 

along. 

We will run the time clock at seven minutes. You are entitled 

to—if you need to go a little longer, that is fine. We just have the 

one panel here today. And if you want to put your full statement 

in the record and then just summarize, that is acceptable, as well, 

and your full statements will be placed in the record. 

Professor Destro, thank you for joining us. 

STATEMENT OF ROBERT A. DESTRO, PROFESSOR OF LAW, COLUMBUS SCHOOL OF LAW, CATHOLIC UNIVERSITY OF AMERICA, WASHINGTON, D.C. 

Mr. DESTRO. Thank you, Senator. Thank you for having me 

today, and I would, with your permission, put my statement in the 

record. 

Chairman BROWNBACK. Without objection. 

Mr. DESTRO. All right. Let me—I am just going to do a little bit 

of summarizing of the testimony. I think there is nothing more boring than just reading it into the record. Let me start out with 

something that—I am going to use a kind of a common name, but 

the importance of the name-calling in constitutional law. And in 

this area, when you are talking about the regulation of the sex industry, if you call it ‘‘pornography,’’ it is not protected. But if you 

call it ‘‘speech,’’ it is protected. 

Now, in constitutional law, we have a name for that name calling. It is called characterization. In constitutional law, he or she 

who controls the initial characterization usually wins the case. And 

what my testimony is about today is the perspective with which I 

5 

think this Committee should look at the issue of regulation of this 

topic. 

You can start by looking at this as a question of market regulation and focus on the pornography industry. That has certain advantages to it in that what you are really talking about is business 

transactions and lots of money and lots of illegal behavior. And if 

you focus on it from that perspective, you never really even get to 

the First Amendment unless you are of the view that Justice Douglas was, that sex acts between consenting adults were a form of 

free speech. He talked about that in Griswald v. Connecticut. But 

setting that aside, nobody else really takes that view. 

Or you can look at it as a perspective of we are going to be regulating content. That, then, gets you into the content and the perspective of speech and really almost an endless morass of First 

Amendment analysis where you get into the question of how much 

redeeming social value is there in this particular movie or videotape or website or virtual reality, and you get into kind of almost 

unanswerable questions about just how much, under the Court’s 

decisions, does this really appeal to someone’s prurient interests? 

I suppose the easy answer to the question is that if they are willing 

to pay for it, it must appeal to them. 

And so that is why I think that a case like Extreme Associates 

is such an interesting case, because it quite properly, in my view, 

ignores the First Amendment. The judge, I think, took great pains 

not to mention the First Amendment. The problem is that as he did 

so, he ignored the rest of the Constitution at the same time. He forgot John Marshall’s oft-quoted comment that if the Constitution 

were expounding, and he focused only on the right side and not on 

the regulatory pieces of this puzzle. 

He creates a right to privacy that, if taken to its logical conclusion, would legalize prostitution, because if indeed you have a right 

to sexually explicit material that is made by others out in Hollywood or wherever they make it, I suppose you could make the same 

argument that under Griswald and Lawrence you would have a 

right to have it made right in your living room, at least under the 

judge’s reading of those 14th Amendment cases. The Congress’s 

power to regulate the economy and the industry just drops out of 

the equation altogether. 

So what I would like to suggest is an initial question, which is 

as this Committee opens its deliberation, whether its goal is to 

score easy symbolic points, which brings me back to that question 

of whether or not you are going to be in this to do some finger 

pointing or name calling, or whether or not you want to regulate 

certain very specific behaviors that are both easily defined and not 

constitutionally protected. 

So let me give you some examples. The sale of sex as a commodity is against the law in almost all the States. A few years ago, 

our Law Review published an interview that a couple of law professors had done with Larry Flynt, and as many of you know, Larry 

Flynt has always been held up as the paragon of the defenders of 

First Amendment values. The article, I didn’t think, was very good. 

The writing around Larry Flynt’s interview was not very good, but 

Larry Flynt’s interview was actually quite fascinating because they 

asked him about the First Amendment. 

6 

He says, ‘‘Well, no, that wasn’t really the point.’’ He said that his 

goal really was to open up, and I am putting words in his mouth 

but this is the rough equivalent—he wanted to have a chain of sex 

stores, that in the end, he thought that there should be a freedom 

to kind of buy and sell sex just like you did any other commodity. 

And I thought, well, finally, he is actually kind of—when you get 

the Larry Flynt unvarnished, he is a salesman. 

And that is what I would suggest that we are looking at here, 

is that we are looking at the sale of sex as a commodity. We are 

looking at sex slavery and trafficking, which is a serious problem 

not only here in the United States but around the world. In the 

case of Extreme Associates, you are looking at exploitation, at battery, and at all kinds of other behaviors that certainly can be regulated under the criminal law. 

And it seems to me that if you were—even if you take Professor 

Schauer’s view that the primary focus should be on the regulation 

of child pornography, that is simply another example of exploitation and I would say, yes, let us go ahead, and we have already 

started with that. We all have broad agreement on that. Now let 

us look at the other kinds of exploitation that need to be regulated, 

as well. 

So my suggestion to the Committee is that you, too, like the 

judge in Pennsylvania, Judge Lancaster, you, too, can avoid the 

First Amendment and you can do it if you are clear and if you focus 

on the commercial aspects of what is going on. Thank you. 

Chairman BROWNBACK. Thank you very much. 

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

for the record.] 

Chairman BROWNBACK. Mr. Trueman? 

STATEMENT OF PATRICK A. TRUEMAN, SENIOR LEGAL COUNSEL, FAMILY RESEARCH COUNCIL, AND FORMER CHIEF, 

CHILD EXPLOITATION AND OBSCENITY SECTION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. TRUEMAN. Thank you very much, Chairman Brownback, and 

thank you for your leadership on this issue of obscenity. 

I, as you mentioned, served as the Chief of the Child Exploitation 

and Obscenity Section at the U.S. Department of Justice at the end 

of the Reagan administration through the entire administration of 

President George Herbert Walker Bush. I worked under three Attorneys General and they had—those three Attorneys General, 

Meese, Thornburg, and Barr—had a very active effort underway to 

prosecute producers and distributors of obscenity. We brought 

many cases all across the country. 

The nature of obscenity with respect to its constitutional status 

had been clear for decades before this, but the Justice Department 

prior to the term of Attorney General Meese for 20 years had not 

prosecuted obscenity hardly at all. Then the Justice Department reversed course because of the Attorney General’s Commission on 

Pornography. When it issued its findings, it called for a strike force 

or a task force of attorneys at the Justice Department to lead the 

effort against the producers and distributors of obscenity. That is 

something that Mr. Meese established. It later was called the Child 

Exploitation and Obscenity Section in the Criminal Division. 

7 

It goes without saying that the leadership of the Attorney General, the nation’s chief law enforcement official, is critical in defeating crime, and that was certainly the case with General Meese and 

his two successors in the Bush administration, General Thornburg 

and General Barr. Each took a strong hand in making sure that 

U.S. Attorneys across the country, as well as Federal investigative 

agencies, pursued obscenity cases. 

During my several years at CEOS, we found that obscenity law 

was quite workable, and moreover, well understood by jurors who 

had to make decisions on the guilt or innocence of fellow citizens. 

To those who argue that the prosecution of obscenity crimes is 

a waste of time or an unwise use of resources, I would like to point 

out that during the time that I was Chief of CEOS, we received 

more than $24 million in fines and forfeitures as a result of our aggressive prosecution efforts. That is more than the budget of CEOS 

during those years. 

I would point out that the public expects the Justice Department 

to enforce the law. Some want to say that if you enforce obscenity 

laws, you will necessarily reduce the number of prosecutions of 

child exploitation laws. However, I don’t believe that is true, that 

one can be pitted against the other. Sure, there are finite resources, but I think when the public looks at the lack of enforcement on obscenity, they may say, why is the Justice Department 

spending tens of thousands of dollars prosecuting Martha Stewart 

and incarcerating here whereas the pornographer who is spamming 

illegal pornography into my son’s e-mail account goes free? 

There were two large-scale obscenity prosecution projects undertaken by the Department of Justice when I worked for CEOS. One 

was Project Postporn, which targeted mail order distributors of illegal pornography, obscenity, who advertised their materials by buying up mailing lists indiscriminately of people across the country, 

including children, and would send sexually explicit advertisements. The advertisements themselves were found to be obscene in 

many of our cases. In that case, Project Postporn, we had 24 individual—excuse me, 50 individual or corporate convictions in 24 

cases spread across 20 Federal districts, U.S. Attorney districts. 

That prosecution effort effectively ended the practice of sending 

pornographic advertisements through the mail by these companies. 

For the second large scale prosecution project, we targeted the 

major producers and suppliers of obscene material in the United 

States. With the cooperation of the Los Angeles Police Department 

Vice Squad, we assembled a list of the top violators of Federal obscenity laws, which was about 50 companies at the time. Most of 

them were located in the Los Angeles area. We brought then all 

the United States Attorneys who had an interest in prosecuting obscenity together at a Los Angeles conference, outlined who these 

distributors were and these producers, with the help of the Los Angeles Police Department, and divided up the cases in about 30 

United States Attorneys’ districts, and then we vigorously prosecuted these companies, about 20 of which were convicted. I think 

there were at the time, probably of those 20 companies, something 

in the neighborhood of 75 to 100 individual convictions. 

Our prosecution strategy in this project was ultimately to bring 

cases against all the major producers and distributors and against 

8 

a wide variety of material. We didn’t just select the hardest of the 

hard core material. We wanted juries to decide what they found to 

be obscene in their district, and that is the nature of what Miller 

v. California, the seminal obscenity case by the Supreme Court, allows. We believed it was important to let juries decide what was 

obscene, and we found that juries, looking at a variety of material, 

from the hardest to the most mild of what we considered to be obscene, regularly said that the material was obscene and were willing to convict. 

I have done several grand juries myself where we asked the people in the jury to decide whether material is obscene, and my own 

experience has been that people who regularly watch movies that 

are obscene will ask questions in the grand jury, saying they didn’t 

know it was obscene, are they doing something illegal, but yet 

those people, when told that, yes, in fact, it may be obscene, will 

also vote for an indictment on obscenity against a pornographer. 

By the end of the administration of President Bush, we were successful not only in gaining convictions throughout the country, but 

in actually changing the nature of hard core material that was produced in the United States. Themes of rape, incest, bestiality, pseudo-child pornography, all common themes prior to our prosecution 

efforts, disappeared from store shelves in many cities and were no 

longer produced at all by the major producers of obscene material. 

Many of the distributors of hard core pornography that had not 

been prosecuted refused to ship products into States where we 

brought prosecutions. 

I will end here just by saying that I am encouraged by the Attorney General’s recent statements that he will vigorously prosecute 

obscenity. I think that he will find that he has the public support 

in doing so and that the juries across America will convict. I encourage the Department to prosecute on a wide variety of material. 

Don’t be afraid to prosecute anywhere in the country. We got convictions in Las Vegas, so-called ‘‘Sin City,’’ in Los Angeles, Minneapolis, Florida. Wherever we brought cases, we got convictions. 

I would ask, Mr. Chairman, that my full statement be introduced 

into the record. Thank you. 

Chairman BROWNBACK. Without objection. Thank you very much, 

and I know you are getting over the flu, so thanks for hanging in 

there. And if he starts to move, either of you witnesses, I would 

move, too, if I were you. 

[Laughter.] 

Chairman BROWNBACK. But thanks for making it. 

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

Chairman BROWNBACK. Professor Schauer? 

STATEMENT OF FREDERICK SCHAUER, FRANK STANTON PROFESSOR OF THE FIRST AMENDMENT, JOHN F. KENNEDY 

SCHOOL OF GOVERNMENT, HARVARD UNIVERSITY, CAMBRIDGE, MASSACHUSETTS 

Mr. SCHAUER. Thank you, and I would like to enter my statement in the record, and in addition, before I start, I would like to 

thank you for starting this hearing somewhat later than hearings 

9 

normally start in this city. This was done as an accommodation to 

me because of my class schedule, and I very much appreciate it. 

I should mention at the outset, I have been writing about the law 

of obscenity for about 30 years now, including a book entitled The 

Law of Obscenity. I also served in 1985 and 1986 as a Commissioner of the Attorney General’s Commission on Pornography. I 

was the principal draftsman of the Commission’s findings and recommendations. 

But I should say that although there are many people who believe that obscenity law as it now exists is unconstitutional and 

violates the First Amendment, I am not one of them. I have long 

believed that obscenity as strictly defined by the 1973 case of Miller v. California lies outside of the coverage of the First Amendment. I still believe that. 

But obscenity prosecutions, as defined according to Miller v. California and the seven other cases decided on that day and a number 

of cases decided thereafter, remains constitutionally permissible 

under the First Amendment, that does not, as you know, end the 

inquiry. The inquiry then moves to the question of under what circumstances would the constitutionally permissible under the First 

Amendment prosecution of obscenity be desirable? 

And in addressing that question, I ask the Committee and I ask 

you to at least take into account three considerations. The first of 

those considerations is guided, Mr. Chairman, by your own statement in the article you wrote with Senator Hatch about the Extreme Associates case that judges should not ignore the law in favor 

of their own agenda. I 100 percent agree with that. I also believe, 

however, and I would hope that you would agree, that ignoring the 

law in favor of their own agenda is not only a judicial vice, but is 

also potentially a prosecutorial vice. I raise this issue because I believe the same applies to prosecutors, and I raise the issue against 

the background of two specific and possibly some number of other 

examples. 

I am troubled by Professor Destro’s statement in his written 

statement that obscenity law is a mess and that we need legislative 

redefinition and legislative resuscitation along different lines in 

light of the fact that obscenity law is now a mess. 

Somewhat more troubling to me are the continuing statements 

from 1986 until the present, and most recently last spring at an 

event at which I was present, by Mr. Bruce Taylor, now Senior 

Counsel of the Department of Justice and with principal responsibility for obscenity prosecution, that there ought to be a per se rule 

about what is or is not obscene and that, and here I quote from 

him, ‘‘penetration clearly visible be an important component of the 

standard for determining what is or what is not obscene.’’ 

These and other efforts to move or change or adjust or modify the 

existing and, in my view, constitutionally permissible Miller v. 

California standard from 1973, are a cause of some concern to me, 

and I would ask you, Mr. Chairman, in investigating this issue to 

seek assurance on behalf of the Committee that prosecution will be 

in accordance with the Miller standard strictly defined rather than 

be used as a way of modifying, expanding, changing, redefining, resuscitating, or in some other way changing the existing, and as I 

10 

said, in my view, constitutionally permissible under the First 

Amendment law of obscenity. 

I also believe that priorities are a genuine issue. I agree with Mr. 

Trueman that one cannot say that there is one thing that is top 

priority and everything else ought to be eliminated simultaneously. 

No sensible policy analyst, and I am now surrounded by many of 

them at my institution, would believe that. 

Nevertheless, as long as we divide up the prosecution, as long as 

we divide up the agenda, as long as we divide up the structure of 

the Department of Justice the way we do, that unless there is a 

substantial infusion of new funds, there is a high risk that an increase in obscenity prosecutions will be at the expense in the short 

term and the intermediate term of child pornography prosecutions. 

To do so, to substitute obscenity prosecutions for child pornography 

prosecutions, would, in my view, be an unfortunate reallocation of 

scarce governmental resources away from what, in the view of myself and many others, is the most pressing issue. 

Finally, if I may make reference back to the report of the Attorney General’s Commission on Pornography. It has been mentioned 

a number of times in this hearing. I don’t want to claim too much 

pride of place here. It can be read by everybody. Nevertheless, if 

we are to go back to the report and draw guidance from that report, in my view, one of its central features was that it divided the 

category of Miller-defined legal obscenity into the categories of material that endorsed and promoted explicitly violence against 

women, material that endorsed and promoted explicitly the degradation of women, and material that was neither endorsing of violence against women nor that was endorsing a degrading of 

women. 

In light of those three categories, the Attorney General’s Commission recommended prosecution of legal obscenity in the first category and in the second category, but as to the third category, the 

Commission made no recommendation. I am troubled here in part 

by the attempt to use the report of the Commission as endorsement 

for the prosecution of legally obscene materials that neither promote nor endorse explicitly the violence against women, but I am 

much more concerned, Mr. Chairman, by the fact that the issues 

of violence against women, the issues of degradation of women, the 

issues that frame the report of the Attorney General’s Commission 

on Pornography seem to have so significantly dropped off the agenda of these hearings. 

The agenda, the issues have been dramatically transformed from 

the issues as they were understood by the Attorney General’s Commission and I would very much hope in thinking about what to 

prosecute or whether to prosecute, the enormously pressing issue 

of violence against women and what might foster it and the evidence about that not be removed from center stage. Thank you. 

Chairman BROWNBACK. Thank you. 

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

for the record.] 

Chairman BROWNBACK. This is an excellent discussion, for me a 

great tutorial following on the hearing we had last fall about the 

addictiveness of pornography and the impact on families to get the 

11 

factual basis of what we are having and then the legal arguments 

taking place here. It is very useful to put those side by side. 

I want to enter into the record an article from the Los Angeles 

Times dated March 5 of this year about a probe into human trafficking to the sex slave trade, and I want to draw your attention 

to this, if I could, particularly, I think, Professor Schauer on this 

one, if I could. 

I met with the City Councilman just yesterday, Councilman 

Cardenas, about this topic. I don’t know, have you seen this article? 

Mr. SCHAUER. I have not seen it. 

Chairman BROWNBACK. Okay. 

Mr. SCHAUER. I am familiar with the issue. 

Chairman BROWNBACK. What we are finding, when I worked 

with Senator Wellstone and his wife on sex trafficking before their 

untimely death, and it is a topic that—it is one of the lead slavery 

issues in the world today. And what we are finding in this, apparently, we are seeing people trafficked into the pornography industry for porn. This is just a quote here from the article. Quote, ‘‘A 

lot of people are promised jobs once they come here, but when they 

get here, they are forced into labor or the sex trade.’’ This is a lawyer with the Department of Health and Human Services. And apparently, this is a lucrative business to move people into. 

I take it from your statement, Professor Schauer, this would 

clearly fall in the category of what you think we should be prosecuting because it is violence against women. 

Mr. SCHAUER. I think there is an issue here that we need to address that distinguishes obscenity from child pornography. I have 

absolutely no doubt that the underlying conduct that you have just 

described ought to be prosecuted with the greatest vigor that the 

law has available. The underlying conduct is conduct that undeniably exists. It existed in 1985 and 1986. It is recounted in great 

detail in the report of the Attorney General’s Commission. 

However, it is an existing and pretty well settled across the spectrum of the First Amendment and across the spectrum of First 

Amendment authorities that the fact that the underlying conduct 

is itself illegal and appropriately prosecutable does not necessarily 

mean that photographs of it, films of it, or descriptions of it can 

themselves be prosecuted. 

Child pornography is a notable exception to that, and when the 

Supreme Court in New York v. Ferber in 1982 allowed the prosecution of child pornography on the theory that the underlying conduct 

was illegal and exploitative, it made clear to reaffirm that this was 

a principle that applied to child pornography and that it was not 

at the time changing its underlying views about whether that principle applied to obscenity. On the existing state of the law, the illegality or appalling exploitation of the underlying conduct justifies 

drying up the market for photographs and films of that conduct. 

For child pornography, yes, but on the existing state of the law for 

adult obscenity, no. 

That is to some extent consistent with a wider range of cases, including the Pentagon Papers case, Landmark Communications v. 

Virginia, Bartnicki v. Vopper, and others in which the illegality of 

the underlying conduct does not affect the question of First Amendment protection. Unless obscenity is moved into the child— 

12 

Chairman BROWNBACK. Let me sharpen my question for you on 

that, then— 

Mr. SCHAUER. Sure. 

Chairman BROWNBACK.—because I have been working on this for 

some period of time and this is really an awful trade. I have met 

with girls that have been trafficked in Nepal and Israel and— 

Mr. SCHAUER. I agree. 

Chairman BROWNBACK.—Thailand and America, and that is 

where this is taking place. And we are even finding reports—we 

haven’t verified this—of people doing the pornography filming in a 

foreign country, developing country, and then shooting it in here, 

because then you don’t have to traffick somebody in and you have 

just trafficked the film in. But if you don’t address that marketplace basket here, aren’t you just continuing to ask for more of 

that? 

As I understand, you are saying, prosecute the crime that is 

being conducted, but don’t prosecute the distribution of the material. And yet if this is then okay overseas, then we start seeing this 

being brought in or people going over to film someplace in Central 

Asia and shooting it in, aren’t you going to have to get at the product to be able to truly address this? 

Mr. SCHAUER. All I am suggesting is that in order to get at the 

product, existing law would have to be changed dramatically. I 

don’t deny the economics of the fact that if one dries up the product, one makes it harder to engage in the underlying conduct. That 

is what the Supreme Court said in Ferber. The economics of that 

relationship exist. 

I am here in part, consistent with the earlier things that I have 

said, to warn against, for pragmatic reasons as well as constitutional ones, of pressing too hard against existing and well-settled 

law, and in this area, the law is pretty well settled. I would enthusiastically support redoubled prosecution of the underlying conduct, 

and the fact that the underlying conduct is itself aimed at potentially being part of a film is no First Amendment defense whatsoever. I would agree with you entirely, the underlying conduct is 

something we should deal with. I would like to deal with it within 

the boundaries of existing law because attempts to change the existing law are always fraught with danger. 

Chairman BROWNBACK. Professor Destro, you talked about regulating on this. What about regulating the filming of somebody that 

is trafficked into here, or let me draw the example I did earlier 

about overseas, the filming of this by individuals and then the 

movement of the product into this marketplace. How would you 

regulate or deal with that? 

Mr. DESTRO. Well, I agree with Professor Schauer that the reason that I say that the law is a mess is that if you are trying to 

get at it in terms of what is the effect of the film on the viewer, 

then you are going to run into all the well-settled law that he describes, and I don’t disagree with his description of that at all. 

My suggestion is that what you do is that you focus on the underlying behavior that is going on here. What you have is trafficking in—I mean, these people are accessories to prostitution. You 

are going to have to, just like you do in trying to interdict the drug 

13 

trade, to figure out where the important pressure points are going 

to be. 

So you could easily prosecute someone for the, not so much under 

a pornography theory but under an accessory to prostitution theory— 

Chairman BROWNBACK. Overseas? Overseas? Let us say this 

filming takes place somewhere overseas in a developing country. 

Mr. DESTRO. Well, you could make the importation of that kind 

of material, focusing on the underlying behavior, illegal, too. Congress does control the borders and it can do it, but if you are an 

accessory to prostitution in another country and you are bringing 

in your wares, whether they are the people or they are the products of their labors in those countries, I think if you keep the focus 

on that behavior, you are going to be on much stronger grounds. 

Chairman BROWNBACK. Mr. Trueman, if the Extreme Associates 

case is allowed to stand upheld, will we be able to prosecute any 

obscenity cases in the future? 

Mr. TRUEMAN. No, I can’t imagine that you would. I think that 

Extreme Associates, the ruling itself is so extreme that obscenity 

prosecutions would go by the wayside. 

Mr. TRUEMAN. Could I add something about something that was 

said here? May I just quickly? 

Chairman BROWNBACK. Yes. 

Mr. TRUEMAN. I just want to take issue with something that Professor Schauer said here, with due respect to him. He mentions 

that the Attorney General’s Commission divided up the nature of 

pornography and material that is violent or, in the second category, 

degrading to women, should be prosecuted. Other pornography, the 

Commission didn’t form an opinion on. And I think he is arguing 

that just those two categories should be prosecuted. 

I think there is a real danger in the Justice Department drawing 

these lines. Communities should draw the lines. The Supreme 

Court has outlined what may be found to be obscene. Now, at the 

Justice Department when I was there, we would bring prosecutions 

with a variety of material. We wouldn’t just go after a pornographer and pick the worst film, which we would likely get a conviction on, because then the community standard becomes that that 

material in that worst film meets the community—is out of bounds 

for that community. 

But if you bring a prosecution across the range of material that 

the pornographer is selling or distributing into the community and 

the jury convicts on all of it as obscene, then you have established 

a community standard and pornographers are thinking, we have 

got to stay out of that State or that community because a variety 

of material has been found to be obscene. I think that is wise, letting the community decide rather than the Justice Department. 

Chairman BROWNBACK. This is just as a layman question, and as 

somebody that runs for public office and then meets people all the 

time. The people are just fed up with getting hit with this stuff in 

their face all the time and their kids on the Internet and at the 

grocery store when they exit, or on a billboard. It wasn’t that long 

ago it wasn’t this way, and this industry is a very large industry 

now, I don’t know how many billions. I have seen different numbers on it. But it is a substantial business. Is it because of the lack 

14 

of prosecution that we see the pervasiveness of pornographic material in America today? 

Mr. TRUEMAN. Yes, I certainly think it is, and by the way, we 

had a witness who turned in one of our biggest cases, a prominent 

man who told us that there is as much money under the table in 

the pornography industry as there is above, and we certainly think 

that is true, or did at the time at the Justice Department. 

But if there is a lack of prosecution, then the people don’t have 

a voice. The prosecutor substitutes his judgment for the judgment 

of the people and juries who would decide these questions. If the 

prosecutor ignores the law and refuses to prosecute, as we are seeing across the country, and then the pornographers have free rein 

of the community. 

You are also seeing as a result of this lack of prosecution mainstream companies, as you pointed out in your opening statement, 

thinking, what is the downside? Now, you mentioned the Adelphia 

Communications, a cable company, just one of the cable companies 

that is distributing potentially obscene material. There is also 

many hotel chains that are distributing potentially obscene material. 

And by the way, we opened an investigation of hotel chain distribution of obscenity when I was at the Justice Department. Apparently, that was closed in the next administration. But these corporations would not venture into this area if they knew the Justice 

Department was serious about enforcing obscenity law. 

When I was at the Justice Department, we prosecuted what was 

at the time the only satellite distributor of obscene material. I mentioned it in my testimony. That company was distributing material 

via a GTE satellite, and we prosecuted them in Utah, where we 

had a complaint. The GTE send Brendan Sullivan, prominent 

Washington attorney, to Utah to tell the U.S. Attorney’s Office that 

GTE didn’t realize until the grand jury began that they could be 

indicted for distributing obscenity even though they were only a 

conduit for the obscenity. They cut that company off and refused 

to allow it again. I think things have changed now. 

So what I am saying is if you begin prosecuting these mainstream companies, Dow-traded or NASDAQ-traded companies are 

not going to continue distributing obscene material for fear of losing shareholder value. 

Chairman BROWNBACK. Thank you. 

We have just gotten a vote called, and so I am going to turn to 

Senator Feingold for any statement he might want to make before 

we have to go over and vote. 

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

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Mr. Chairman, I want to apologize. In fact, 

the vote is on the Feingold amendment and that is the reason why 

I wasn’t here. I certainly would not have chosen this time to offer 

my pay-go amendment, but I was not given a choice, so I do want 

to apologize to you, Mr. Chairman, for not being here, but also to 

thank you. 

You wanted to hold this hearing a few weeks ago, and because 

of not getting certain testimony at that time, you were kind enough 

15 

to postpone the hearing, and I really appreciate that and look forward to working with you as the Chairman of this Committee. 

I will simply put my statement in the record, and I want to 

thank the witnesses for coming. I also will review the record and 

perhaps submit some questions in writing, if that would be acceptable. 

Chairman BROWNBACK. Absolutely. 

Senator FEINGOLD. I would just ask that. Thank you, Mr. Chairman. 

Chairman BROWNBACK. Thank you. 

If I could, Mr. Trueman, looking further at this, I have had some 

attorneys say to me that they would prosecute these form of cases, 

but they are local prosecutors and they will come up against national lawyers on the other side of the case and they need information and assistance. They don’t know how to prosecute on a local 

basis or a State basis an obscenity case. Do you offer any—is there 

any help for them in prosecuting these cases? 

Mr. TRUEMAN. Well, the pornography defense bar is very small. 

There are about nine or ten attorneys who defend these cases when 

they come up around the country, whether it is a Federal prosecution or a local prosecution. A local county prosecutor will be overwhelmed with pretrial motions and find that their office is spending a huge percentage of their budget on one obscenity prosecution, 

and win or lose, they usually don’t bring a second one. That is the 

intent, I think, of the pornography industry. 

Reuben Sturman, when he was alive and identified, by the way, 

by the Attorney General’s Commission on Pornography as the top 

pornographer, offered to provide defense counsel to any pornography shop carrying his material. 

So local prosecutors have a difficult time, I will acknowledge 

that. They can get help from the Justice Department in terms of 

pretrial motions. Bruce Taylor at the Justice Department, who was 

mentioned here earlier, has participated in more cases than anyone. He has got a brief bank that is, I think, available to anyone. 

The Justice Department also has that. 

But this is the reason why I always advocated when I was at the 

Justice Department, and still do, that prosecutions should primarily be done by the U.S. Department of Justice because they can 

match shot for shot the defense bar in these cases. The Justice Department won’t be overwhelmed. They won’t stop doing a case just 

because it has been drawn out and expensive to do. So I think it 

is vital that the Justice Department gets back to a point of vigorously prosecuting. 

Chairman BROWNBACK. I have to say, gentlemen, I am very 

pleased with your testimony and information on this. This is a very 

troubling topic to me today and our society. I have said at hearings 

I have held previously on this, its impact on families, the expansion 

taking place, trafficking now into an extremely lucrative business, 

and it is something that spans the political spectrum. This is something that—the Councilman I am working with in Southern California is Democratic. Remember Paul Wellstone and I worked on 

the trafficking issue. It is really hurting the society today. 

I am hopeful that we can get some vigor in constitutionally prosecuting cases of this nature because of its impact on the overall soVerDate Aug 31 2005 11:34 Oct 20, 2008 Jkt 043914 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44825.TXT SJUD1 PsN: CMORC
16 

ciety and culture, and it must be done constitutionally and it must 

be done wisely in us moving forward. But I also believe it must be 

done, and that if you don’t do these sort of issues, your society continues to further and further engage and to allow, and you just continue to, as Senator Moynihan would say, define deviancy downward. He, whom I got to work with on cultural issues before and 

I considered him a great tutor before he left the Senate and passed 

away, would always view culture as one of the central issues, and 

in many cases more important than government. 

But here, you have government kind of allowing a culture to 

move in a way that is not there in the law. But if you don’t enforce 

it, nothing in particular happens. 

I would appreciate any further thoughts any of you might have 

on this, because if we are looking at an increased prosecution in 

this area, it needs to be, must be done constitutionally, must be 

done wisely, and hopefully, effectively so that what is constitutional 

is allowed. What isn’t, isn’t, and we don’t further harm our families. I get more complaints from people than anything about, look, 

I just don’t want the culture to attack my family anymore. I would 

rather have a culture that buttresses and builds it up. And then 

when cases come along where you effectively eliminate all prosecution of obscenities, if they are moving forward, I can hear those 

same families saying to me, ‘‘Now what do I do?’’ in the society. So 

I do hope you can help us as we move forward on this. 

I am appreciative of the panel, of your work. Many of you have 

worked a great deal of your professional lives on this particular 

topic. 

I will keep the record open for seven days should other members 

wish to submit their statements or other materials for the record. 

Thank you very much. The hearing is adjourned. 

[Whereupon, at 3:58 p.m., the Subcommittee was adjourned.] 

[Submissions for the record follow.] 

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