PROTECTING POSTAL PATRONS FROM OBSCENE

AND OBNOXIOUS MAIL AND COMMUNIST

, PROPAGANDA

P 84//0 Part II

b 7/4 

OVERNMENT

torage

HEARINGS

BEFORE THE

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rz COMMITTEE ON

Ej OFFICE AND CIVIL SERVICE

USE OF REPRESENTATIVES

EIGHTY-EIGHTH CONGRESS

SECOND SESSION

ON

H.R. 142, H.R. 319, and Similar Bills

BILLS TO PROTECT POSTAL PATRONS FROM OBSCENE AND

OBNOXIOUS MAIL AND COMMUNIST PROPAGANDA

APRIL 16, 1964

Printed for the use of the

Committee on Post Office and Civil Service

Ilk

US. GOVERNMENT PRINTING OFFIC

2.5-Ibt) WASHINGTON : 1964

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COMMITTEE ON POST OFFICE AND CIVIL SERVICE

TOM MURRAY,

JAMES H. MORRISON, Louisiana

THADDEUS J. DULSKI, New York

DAVID N. HENDERSON, North Carolina

ARNOLD OLSEN, Montana

MORRIS K. UDALL, Arizona

DOMINICK V. DANIELS, New Jersey

LINDLEY BECKWORTH, Texas

HARLEY 0. STAGGERS, West Virginia

ROBERT N. C. NIX, Pennsylvania

JOE R. POOL, Texas

ALBERT W. WATSON, South Carolina

EDWARD R. ROYBAL, California

CHARLES H. WILSON, California

II

Tennessee, Chairman

ROBERT J. CORBETT, Pennsylvania

H. R. GROSS, Iowa

AUGUST E. JOHANSEN, Michigan

GLENN CUNNINGHAM, Nebraska

GEORGE M. WALLHAUSER, New Jersey

ROBERT R. BARRY, New York

KATHARINE ST. GEORGE, New York

EDWARD J. DERWINSKI, Illinois

ROBERT F. ELLSWORTH, Kansas

HOMER E. ABELE, Ohio

ALBERT W. JOHNSON, Pennsylvania

CHARLES E. JOHNSON, Staff Director

JOHN H. MARTINY, Counsel

B. BENTON BRAY, Professional Staff member

WILLIAM A. IRVINE, Professional Staff Member

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• *19
CONTENTS

Statement of—

Miller, Hon. Herbert J., Jr., Assistant Attorney General, Criminal

Division, Department of Justice, accompanied by Herbert E. Hoffpan, Chief, Legislative and Legal Section, Office of the Deputy

Attorney General, and Edward J. Pesce, attorney, Criminal Division,

Department of Justice 

III

Page

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PROTECTING POSTAL PATRONS FROM OBSCENE AND

OBNOXIOUS MAIL AND COMMUNIST PROPAGANDA

(Part II)

THURSDAY, APRIL 16, 1964

HOUSE OF REPRESENTATIVES,

COMMITTEE ON POST OFFICE AND CIVIL SERVICE,

Washington, D.0 .

The committee met, pursuant to notice, at 10 a.m., room 215, Cannon

House Office Building, Hon. Tom Murray (chairman of the committee) presiding.

Mr. MURRAY. The committee will come to order.

This committee, at the last session, agreed that the first order of

business this morning would be the presentation of testimony on

11.R. 319 as reported from the subcommittee by representatives of the

Department of Justice.

The witness for the Department is Herbert J. Miller, Jr., Assistant

Attorney General. The committee will be glad to receive Mr. Miller's

testimony at this time.

STATEMENT OF HERBERT J. MILLER, JR., ASSISTANT ATTORNEY

GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE; ACCOMPANIED BY HERBERT E. HOFFMAN, CHIEF, LEGISLATIVE

AND LEGAL SECTION, OFFICE OF THE DEPUTY ATTORNEY GENERAL; AND EDWARD J. PESCE, ATTORNEY, CRIMINAL DIVISION,

DEPARTMENT OF JUSTICE

Mr. MILLER. I would like to introduce Herbert Hoffman, Office of

the Deputy Attorney General, and Edward Pesce, lawyer, in the Criminal Division.

Mr. Chairman and members of the committee, for the record, my

name is Herbert J. Miller, Jr. I am the Assistant Attorney General,

in charge of the Criminal Division of the Department of Justice.

We appreciate your invitation to have us comment on H.R. 319 with

the subcommittee amendment. The proposed bill provides that an

individual who receives mail matter, which, in his opinion, appeals to

prurient interest, may request the Post Office Department to notify the

sender to remove that individual's name from the mailing list. The

postal authorities must notify the sender and fix a time limit after

which the sender is prohibited from sending any mail to that individual.

If matter is received in violation of the notice and the mailed matter,

in the opinion of the recipient, appeals to prurient interest, the re181
182 PROTECTING POSTAL PATRONS

an 

cipient 

affidavit 

may return the matter to the postal authorities together with

exceeding 

of the facts. Whereupon the sender is liable to a fine not $5,000 or imprisonment up to 5 years, or both. The objective of 

obscene.

the bill is to protect postal patrons from what, in their opinion, is

comply 

The primary difficulty with the proposed statute is its failure to with those standards required by the due process clause of the Constitution.

language 

Thus, as the Supreme Court has stated, due process requires that of a penal statute, and I quote:

convey 

ured by 

(a) 

common 

sufficiently definite warning as to the prescribed conduct when meas332 U.S. 

understanding and practices * * * (United States v. Petrillo, 1, 7-8).

The principle was well stated by Mr. Justice Frankfurter in the Burstyn v. Wilson case (1951) (343 U.S. 495, 532), as follows:

prohibited 

Prohibition through words that fail to convey what is permitted and what is

[in that] it 

for 

does 

want of appropriate objective standards, offends due process * * *

may reasonably 

not sufficiently apprise those bent on obedience of law of what be foreseen to be found illicit by the law enforcing authority, whether court, or jury or administrative agency.

Here the action of the mailer in placing the matter in the U.S. mails would be a legal act and become criminal only when the recipient, by his own subjective standard, determined that the matter appealed to his prurient interest.

The sender would be unable, even assuming he were a law-abiding citizen, to comply with an ascertainable legislative standard. Thus, he could innocently run afoul the provisions of the criminal statute carrying substantial penalties.

This result flows from the undisputed fact that it is impossible to predict what fancy or whim might cause the recipient of matter sent through the mails to determine that the matter appealed to his prurient interest. It would seem clear that the proposed bill does not meet those minimum due process requirements established by the Con- stitution.

There is an additional constitutional problem which should be men- tioned. An effect of H.R. 319 is to impose a restraint on the free dissemination of material through the mails by a sender. In cases involving broader restraint than is involved in the proposed bill, for example, as in Near v. Minnesota (283 U.S. 697), where a newspaper

was enjoined from publishing future issues because a previous issue had been found to be "defamatory," the Supreme Court has said that any system of prior restraint of expression comes to the Court bearing a heavy presumption against its constitutionality.

This poses the basic issue of whether Congress can constitutionally provide criminal sanctions for causing mail to be delivered to a par- ticular recipient after the mailer is given notice that the recipient does not desire to receive such matter through the mail. Case law does not resolve this problem, but it obviously points out an area of concern as to this particular bill.

Nothing in H.R. 319 requires proof of knowledge or wilfullness

on the part of the sender. The bill imposes a liability on the sender, which the Supreme Court in Smith, v. California ( (1959) (361 U.S.
PROTECTING POSTAL PATRONS 183

147) ) indicates would skirt the border of unconstitutionality in a

criminal obscenity statute. However, this could be easily modified

by adding a requirement of knowledge.

Finally, insofar as the bill is aimed at punishing dissemination of

the obscene by mail, it is unnecessary. Chapter 71 of the Criminal

Code prohibits the mailing of obscene matter imposing a penalty of

up to $5,000 or 5 years' imprisonment, or both, for the first offense,

and a fine of up to $10,000 or 10 years' imprisonment, or both, for

each subsequent offense.

That concludes my prepared statement, gentlemen.

Mr. MORRISON. Mr. Chairman.

Mr. MURRAY. Mr. Morrison.

Mr. MORRISON. Mr. Miller, the Department of Justice is opposed

to enactment of this bill?

Mr. MILLER. It is.

Mr. MORRISON. You spoke of the unconstitutionality of H.R. 319.

In your opinion is it unconstitutional?

Mr. MILLER. Yes; it is. I feel that it causes a real area of concern,

primarily for this reason:

The bill gives to every individual who received mail in the United

States, in effect, a determination as to whether certain matter is or is

not obscene, and subjecting an individual to substantial criminal

penalties on the basis of that determination. That determination is

not any legislative standard, but it is the subjective determination of

the recipient of the mail.

For example, if I received or if someone received a copy of the

Bible through the mail, or a Ward's or Sears, Roebuck catalog through

the mail, each of those books or periodicals could be considered by

some individuals in the United States as appealing to their prurient

interest, and that is what concerns the Department of Justice about

this bill as drafted.

Mr. MORRISON. According to that explanation, you feel that it could

be unconstitutional if this bill were enacted.

Mr. MILLER. Yes, sir.

Mr. MORRISON. And it would be absolutely impossible to enforce?

Mr. MILLER. It would be exceedingly difficult, exceedingly difficult.

Mr. MORRISON. By way of explanation of my position, I had an

opportunity when the subcommittee came to New Orleans to sit in

the hearings on obscene literature, and various public officials testified.

We had, as I remember, members representing the schoolteachers and

parent-teacher associations, and the district attorney for the State who

stated that he had adequate laws in which to stop this obscene literature. As a matter of fact, he gave examples of where the State's

attorney had just about stopped the source of all obscene literature in

New Orleans—and at one time it was of considerable volume. And as

a result of his active enforcement, there was very little, if any, obscene

literature being distributed in that area.

When we asked him if they had adequate laws to prosecute violators,

he said they had the laws to stop the distribution and dissemination of

this obscene literature.
184 PROTECTING POSTAL PATRONS

Are there present Federal statutes on the books that give you all the tools and implements that your Department needs to cope adequately with this situation?

it 

Mr. MILLER. Yes. The basic stautes, of course, are those which make

in 

a Federal crime to send obscene matter through the mail or carry it interstate commerce through the express companies or common carriers.

bers 

The real problem in this field, and I'm sure you and the other memwhat 

of the committee recognize this—the real problem in this area is

varying 

is obscenity? What constitutes obscenity? You could get a

view from every person in this room as to whether something was or was not obscene. You can read the varying decisions of the

down 

States and Federal courts attempting to determine what is, or laying

variance 

standards as to what is or is not obscene, and you can see the in different areas of the country and you can see the variance of decisions today contrasted with those, say, of 20 years ago. So that as far as the statutes which make it a criminal offense to

real 

pander obscene materials, I feel that the statutes are adequate. The

Federal 

problem comes—and it is a constitutional problem—how far the Government can or should go in the area of ideas, thoughts, which are embodied in periodicals and other written items. Mr. MORRISON. It seems to me I recall reading in the paper several weeks ago that there was a conviction, I believe, in New York City for sending out obscene material. Do you recall that? Mr. MILLER. There have been—

Mr. MORRISON. I momentarily can't think of the name but I remem- ber reading about it.

Mr. WATSON. Mr. Ginzburg.

Mr. MILLER. Mr. Ginzburg, I believe, sir, was convicted in Phila- delphia. He was the publiSher of Eros and other publications. There was a conviction of a man named Klaw in the southern district of New York, a Federal ease. There was a recent case where you had a large-scale seizure of paperback books. This was done by the local police department. I don't know the status of that case. I

think it is currently in litigation.

Mr. MORRISON. This conviction of Ginzburg, who was convicted in Philadelphia, and the other case, Klaw, that you mentioned in New York, were they convicted under existing statutes?

Mr. MILLER. That is correct; existing Federal statutes. Mr. MORRISON. And you feel that those statutes are adequate to cope with the problem in the future?

Mr. MILLER. I do sir.

Mr. JOHANSEN. Will the gentleman yield just at that point? Mr. MORRISON. Yes.

Mr. JOHANSEN. Have either of those two cases that have been cited yet gone to the U.S. Supreme Court?

Mr. MILLER. They have not gone to the U.S. Supreme Court. In fact, they have not even been passed on by the court of appeals yet. Mr. MURRAY. Anything further, Mr. Morrison?

Mr. MORRISON. NO, sir.

Mr. MURRAY. Mr. Cunningham, do you have any questions? Mr. CUNNINGHAM. Yes; I do.

Mr. MURRAY. Mr. Cunningham is author of this legislation.
PROTECTING POSTAL PATRONS 185

Mr. CUNNINGHAM. I first of all refute the reasons given by the

Justice Department for their opposition to this bill as well as the

arguments made by the gentleman from Louisiana.

Mr. MORRISON. Mr. Chairman, will you kindly yield?

Mr. MURRAY. The gentleman refuses to yield. Regular order. All

right; go ahead, Mr. Cunningham.

Mr. CUNNINGHAM. Mr. Miller says that he feels they have adequate

statutes on the books to deal with this problem. This will come as a

great shock and surprise to millions of parents because if you have

such statutes, you are either not enforcing them and prosecutmg these

violators, or you are not gaining victories in the courts, because the

Supreme Court has knocked these cases down right and left under

your so-called existing statutes. And in the Ginzburg matter, they

are going to probably do the same.

You can usually get a conviction on a lower level. When it gets up

to a higher level, you lose. Now, if you have adequate statutes on

the books and you are not making any headway in curbing this

cesspool activity, there is something radically wrong somewhere.

Now our subcommittee doesn't use the word "obscene" here because

it is hard to define. If something comes to my minor child and an

action brought, this action is heard before an adult jury. An adult

jury under the law has to decide in his mind whether he thinks it is

obscene. And he may not think so. You may not think so or I may

not think so, and we just throw it in the wastebasket and forget

about it.

But where the gap is is that the jury is not allowed to determine

whether this would be obscene to my minor child, and this is the

purpose of this legislation. My home is my castle and the mailbox

is a part of my home, and I have a right to determine whether I want

this type of trash coming into my home or not.

There was a recent Supreme Court decision on a prayer case. A

woman didn't want her child to be subjected to prayer or bible reading

in a public school. The Supreme Court ruled in her favor on the basis

of parental right. Well, I have a parental right in this matter with

six children of my own and it has happened in my own home, where

my son, who was a member of the Boy Scouts, sent in for a little

packet of stamps from the Boy's Life magazine, 25 cents, a legitimate

transaction and 3 or 4 years later he starts getting this trash because

of the transfer or the sale of these lists of names of boys who sent in for

a legitimate item. The lists are sold to the dealer in obscenity at a

very high price.

And so there is a tremendous traffic in this list brokerage operation,

and the only way we are going to meet that problem is through some

statute like this. I don't agree with the Supreme Court's decision in

the Prayer case—but I will have to say that I have just as much right

to tell my children or to intercept mail that might be addressed to

my minor children. I have just as much a parental right to do that as

the Supreme Court said this lady had in the Prayer case.

But I'm amazed to hear you say that you feel that you have the

necessary statutes when this problem is getting bigger and bigger and

bigger and it is a multi-billion-dollar business. So where is the breakdown? I'm asking you if you have adequate statutes, where is the

breakdown?

25-186--64—pt. 2-2
186 PROTECTING POSTAL PATRONS

Mr. MURRAY. You may answer.

Mr. MILLER. I would like to run through the various points that you have raised.

Starting out with whether or not the Department of Justice is en- forcing those statutes which are currently on the book, I think, Con- gressman, that you and I have both got to realize that you have to start with the basic proposition that you are here dealing with a constitu- tional principle that deals with two conflicting rights. One is the right to freedom of speech and the other is the right, as you put it, to privacy—to be left alone.

Mr. CUNNINGHAM. I Milk interrupt you because there are now Su- preme Court decisions that limit the right to freedom of speech. There are many cases on that. There are certain things that they have ruled on to limit the freedom of speech.

Mr. MILLER. That is correct. In the Roth case---- Mr. CUNNINGHAM. I am not denying anybody else freedom of speech. I am only saying I don't want this trash coming into my home when I didn't ask for it.

Mr. MILLER. Congressman, I didn't make the statement—the Su- preme Court did—that whatever is taken from the area of free debate by reason of being declared Obscene or held to be defamatory, is a lim- itation on the right of freedom of speech. True, courts have flatly held in many cases that obscene matter is not covered by the first amendment, that defamatory matter is not covered by the first amend- ment, but whatever is encompassed within those terms is taken from the area of free debate.

And what I am saying to you, Congressman, is that although I may personally feel that pictures of nude males posed in suggestive ways and which are sent through the mails may be obscene by my standards, maybe patently offensive by my standards, my standards as a prosecu- tor do not govern what is or is not obscene. Those standards— Mr. CUNNINGHAM. I'm only saying what is obscene as far as I'm concerned. I'm not saying what my neighbor would want to receive. Mr. MILLER. Those standards are decided upon by the Supreme Court. And I would say, Mr. Cunningham, that under the bill as drafted, you would in effect be saying what is obscene or at least what appealed to your prurient interest is determinative of whether or not I should prosecute a man and attempt to convict him so that he would be subject to 5 years' imprisonment. It would be your personal sub- jective determination which controls whether or not I, as a Federal prosecutor, would indict that man, bring him to trial and try to convict him and sentence him to jail.

So I say, sir, that it is the subjective testimony 

Mr. CUNNINGHAM. Mr. Miller, if I say that this appeals to the prurient interest of me or my minor child, that I don't want any more of it, then if a person says, "I'm going to send you more of it," and I get some more, this is where the penalty comes in. Mr. MILLER. Mr. Congressman I agree. Therein lies the problem. What are individuals going to do who are recipients of mail which they do not ask for and which shows up in their post office box—how is this taken care of? How can this be handled?

I say that the way that is suggested that it be handled in H.R. 319 is unconstitutional because of the subjective standard type of approach
PROTECTING POSTAL PATRONS 187

I mentioned. And I would point out that there is already on the books

a civil statute which enables an individual—and I'm no expert in this

civil matter—who is the recipient of mail which he considers obscene,

lewd, or lascivious, to go to postal officials and demand that such mail

not be delivered to this individual.

Mr. CUNNINGHAM. Mr. Miller, that is as far as 

Mr. MILLER. All I know about that statute is what is provided in

the code, Mr. Cunningham. I have no knowledge as to how it is enforced, or how it operates.

I read the testimony of Mr. Doyle, who is the General Counsel of

the Post Office Department 

Mr. CUNNINGHAM. I'm very familiar with that and I will explain

it to you.

Mr. MILLER. I will be very interested.

Mr. CUNNINGHAM. If I get a piece of mail and I don't like it, I can

say to my postman, take it back to the post office. Millions of people

are upset about this obscenity problem. Can you imagine my letter

carrier. He is going to have a whole space, maybe as big as this room,

pasted with notices from the people to whom he delivers mail saying

they don't want a particular piece of mail. So he is going to spend

half of his day looking at what is coming in and checking all of these

notices to see if this man or this householder wants this piece of mail.

And it doesn't stop the repetition of it. It can go on and on and on.

So it is not workable. It has no effect. If I want to do that, all I

have to do is tear it up and throw it in the wastebasket, but my children may get the mail first. It in no way stops the selling of a legitimate list of names to a dealer in obscene material.

Mr. MILLER. I would say, however, that there is a provision. Now

maybe it is lack of personnel in the Post Office Department. Perhaps

they don't have a sufficient number of letter carriers to run through

these various notices that are stacked, or pasted to the wall, but here

you do have a provision, as I read it. I have no expertise or knowledge

as to this civil statute, other than what I read here from the public

law, where notice may be given to the postmaster, he then shall not

deliver this mail to the addressee.

Mr. CUNNINGHAM. Well 

Mr. WALLHAUSER. Will the gentleman yield for a question?

Mr. CUNNINGHAM. Yes.

Mr. WALLHAUSER. What protection does a person have if somebody

walks into his home without. invitation. What can he do about it?

Mr. MILLER. Well, I suppose you have the ancient right of selfhelp, which is to a certain extent frowned upon. You have a right

to sue civilly for trespass and seek damages for the wrong done you.

And if the man has entered the house with a felonious intent to commit

some act thereafter, then you can call the prosecutor who will come

and ascertain what the facts are, and if they violate an existing

statute, then you would have him prosecuted.

Mr. WALLHAUSER. The person who sends prurient mail is invading

your home with felonious intent, in effect.

Mr. MILLER. If the material is in fact obscene, or if you prefer,

appealing to the prurient interest, there is a violation. We can prosecute under the existing statute. There is no need for this addionaI

law. If mail matter which appeals to the prurient _Interest,

,11
188 PROTECTING POSTAL PATRONS

subjective determination of the recipient of that mail, then that would

be prosecutable under the proposed statute.

Mr. JOHANSEN. Will the gentleman yield?

Mr. WALLHAUSER. After one question.

The prosecution only comes after the second violation in this case?

Mr. MILLER. Well, there would be a notice given and then subsequently mail received from the same sender.

Mr. WALLHAUSER. Right.

Mr. MILLER. But it need not be the same mail. For example, if I

may throw out one example which would give me great concern. Let's

assume that pictures of nude women were in fact sent into the home,

or advertisements as to where to procure them. Notice was given

to the postmaster. Subsequently that same sender sent out a catalog

from a legitimate store he also operated. This catalog contained

pictures of women in underwear, which the recipient—in all due

honesty—determined to be offensive and appealed to his prurient interest. And he so stated in an affidavit and forwarded it to the Post Office Department.

Now that sender has violated the statute, as I read it, even though

the second mailing is something which is commonplace. You can see it in your newspaper, your various periodicals, to a certain extent; even

on television, which comes right in the home. And yet that man

would be committing a felony under the provisions of this statute.

Mr. WALLHAUSER. But we are talking only about unsolicited mail.

However, he has the right of appearance in court. He has the right of defense. He just isn't automatically fined and automatically sent

to jail. It has all to be proved.

Mr. MILLER. All that would need to be proved—and this is really the vice—is that he had the original notice given and he subsequently received mail which, in his judgment, by his own subjective standard, appealed to his personal prurient interest. That is the violation.

If I were prosecuting, I would prove the original notice; I would

prove the subsequent receipt; I would prove the affidavit which this fellow, in his own opinion, said that this appeals to his prurient interest, even though it might be the Bible, for example; and then

I would have completed my presentation and would have made out a

violation of this statute as written.

Mr. JOHANSEN. Will the gentleman yield?

Mr. CUNNINGHAM. Yes. But mentioning the Bible is a smokescreen. Nobody sends Bibles through the mail unless they are ordered, and this bill does not apply to anything a person subscribes to.

Mr. JOHANSEN. What is the dividing line, so far as law and judicial precedent is concerned, between objective proof of obscenity and this subjective judgment that you speak of?

Mr. MILLER. The subjective judgment as to what is or is not obscene is the judgment that you or I make upon being presented with a par- ticular piece of printed matter. The judgment that the law makes as

to what is or is not obscene is garnered from going through the many

Supreme Court and other decisions, judicial decisions, which have established certain standards as to what is or is not obscene.

Now, for example, you had in the Manual Enterprises case pictures

of nude males suggestively posed. The court of appeals held them

to be obscene within the meaning of the statute as they applied the
PROTECTING POSTAL PATRONS 189

standard, finding that the material appealed to the prurient interest

of the group of homosexuals for whom this matter was obviously

designed and sent through the mails.

Mr. JOHANSEN. Didn't they get into subjective aspects when they

said that it appealed? Wasn't their judgment that it appealed to the

prurient interests? Wasn't that in itself a subjective judgment?

Mr. MILLER. It was a subjective judgment within the framework

of the laws and the cases which have grown up through the history

of the common law.

And one further thing was developed when that case was reversed

by the Supreme Court and this matter was held not to be obscene.

Justice Harlan, announcing the judgment of the Court, pointed out

that not only was there a problem from an appeal to the prurient interest standpoint but he went on to say that the court of appeals had

to consider another element implicit in the Roth case, whether or not

the material was patently offensive. You can call it a subjective

judgment, if you will—

Mr. JOHA.NSEN. Certainly.

Mr. MILLER (continuing). Or you can call it taking a definition

which has grown up in the body of law; but it was said under a

standard previously established in case law that these photographs

were not patently offensive, and, consequently, were not obscene.

Now the trouble is, Congressman—and I know the problem that this

has created, because I spent some little time on it, and I am sure you

have, too—I don't want pictures such as this coming into my home any

more than you do, but the real difficulty is with the definition of what

is obscene. And you and I both are bound by that definition from a

constitutional standpoint.

Mr. JOHANSEN. I reserve the right to have further time.

Mr. CUNNINGHAM. I want to pursue this for a moment or two. You

say the whole trouble is with the definition of obscenity. And that is

the reason we have been losing cases right and left. This is the reason

we use prurient interest, and allow the homeowner, whose home is invaded, to make that decision. And so we are following the Supreme

Court's decision in its latest case, the Roth case, when we use the word

prurient"—which is defined by the dictionary as longing of persons,

having lascivious longings of desire, curiosity, or propensity, lewd,

and so on.

By using the word "prurient" we define what we think is obscene.

But we don't use the word "obscene" because you can get a million

different opinions on that.

But, anyway, this is a tremendous problem throughout the country,

and people are more concerned with this at the grassroots level than

almost any other problem.

I wrote the late President Kennedy and asked for help. I asked,

with all of the talent down in the executive branch—and primarily in

the Justice Department—if they wouldn't study this problem and come

up with some recommendations to meet it. The Justice Department

comes up with almost every other kind of a study such as suggestions

on dope addiction, and juvenile delinquency, and all this. But I get

back a letter from somebody in the Justice Department saying, in effect: "No; we are not going to make any such study" "freedom of

speech," and all that sort of stuff. And so nothing came of it.

,•11.
190 PROTECTING POSTAL PATRONS

I noted, however, there is a tremendous effort to arouse the people

in New York City right in the downtown area called Operation Yorkville. This is headed up by a Jesuit priest. And it has on its steering:

committee Protestant ministers and Jewish rabbis. And they are doing a tremendous job up there. They support this bill. In fact, they

sent literally hundreds and thousands of communications to the President urging that he establish a commission to make a study of this

problem.

Evidently the Justice Department became concerned enough about

their activities that they invited 12 of them to come down to the Justice

Department. Mr. Robert Kennedy invited them down. And maybe

you were in that meeting.

Mr. MILLER. No. I believe my executive assistant met with them.

Mr. CUNNINGHAM. And it was reported to me that they were concerned and they were hopeful that Operation Yorkville would continue its activity, and left the thought that the Justice Department

would come up with some recommendations in this field. But this has

never happened. It has never taken place.

As far as the Justice Department's opposition is concerned, I will

say now what I have said many times: if this committee is only going

to consider those pieces of legislation that are sent down here or have

the approval of the departments downtown, then we may as well just

rubbersta,mp everything, shut up shop, and go home.

The Justice Department vigorously fought the amendment that I

sponsored, having to do with the free delivery of Communist political propaganda. Every agency of the Government practically, including the Treasury and Edward R. Murrow and Justice, and I don't

know who all, fought it. But the people wanted that type of legislation and the Congress passed it. And it is working fairly well, .although some liberal-oriented groups out on the west coast are going

to bring a suit on it.

I wrote the Attorney General and asked that even though they opposed it would they vigorously prosecute it, and he assured me he

would. We'll see what happens.

I don't think you can say, sir, what is and what is not constitutional,

make a definite statement to that effect. Just like we in the Congress

can't say, as we debate legislation, that you better not pass this because the President is going to veto it: we never say that, or very

rarely; because we don't know.

Mr. MILLER. I agree that any statement I make here, that a statute

may or may not be unconstitutional, has no definitive weight or effect.

But I would hope that the cases, particularly the Supreme Court cases,

which deal in this area of due process, and which are as available to

the members of the committee as they are to me, would provide a guide

which we could sit down and read to come to our own conclusions.

I have done that. And I assume that you have done that.

I would like to go on to Operation Yorkville, if I may, for a minute

and point out that I do feel that this type of an operation is something

which has demonstrated success.

In reading again, in skimming through your hearings, I find that

there is a similar organization which is based, I believe, in Cincinnati,

Ohio. I forget the name.

Mr. CUNNINGHAM. Citizens for Decent Literature.
PROTECTING POSTAL PATRONS 191

Mr. MILLER. I read with great interest the impact that these individuals had made by bringing the problem to the attention of the local

police, the local district attorney, and people who were at the local

level.

The interest of the Federal Government is, of course, only where

interstate commerce or where the mails are involved. Once these publications are on the stands, the newsstands around the various cities

of the United States, there is nothing that we can do.

Mr. JOHANSEN. May I interrupt right here

Mr. MILLER. Yes.

Mr. JOHANSEN (continuing) . To say if we applied as liberal an interpretation of interstate commerce to this problem as is applied to

the civil rights legislation, we might even be able to do something with

magazines on the newstands.

Mr. MILLER. I am not particularly familiar with the civil rights

legislation, but I rather doubt that the interstate commerce clause

could be applied to reach publications which may not even have been

in interstate commerce.

But what I am saying is that you have a twofold interest here: in

the first place the Federal Government has traditionally been looked

upon very carefully by the courts whenever it has ventured in the

field of obscenity. Indeed, the same thing is true when the Federal

Government ventures into the area of sedition and seditious statements; and this is the history of this country. Concerning the Federal

Government, on the one hand, if something is determined to be obscene at the Federal level, then you have in effect blocked it, as it

were, from transmission among the 50 States. The Supreme Court

noticed this in a recent decision when it said if an individual State

determines that something is obscene, that publication is barred only

in that State, but may in fact be available in the other 49. I think 

Mr. CUNNINGHAM. Operation Yorkville does an excellent job but,

as you say, it is a two-headed problem. They are working at the

local level, trying to educate the people and do whatever they can

to keep this type of thing off the newsstands, and it doesn't move in

interstate commerce. A tremendous amount of prurient matter is

published right there in New York City. So the only thing that we

are concerned with here is what moves through the mails. That is our

responsibility.

You made the statement that you feel that the statutes are adequate.

This, as I say, will be somewhat of a shock to quite a few people.

The Justice Department therefore does not have any suggestions for

meeting this problem?

Mr. MILLER. The Department of Justice, so far as the Criminal

Division is concerned, does not request or desire additional statutes in

the criminal field.

Mr. CUNNINGHAM. You are speaking for the Department of

Justice?

Mr. MILLER. I am speaking for the Department of Justice. I have

not had a chance to talk to John Douglas in the Civil Division, or

go into this matter as to what areas the Department might be inter-

''ested in in the civil field. I was asked to come down here to comment

upon this bill and that is what I have done.
192 PROTECTING POSTAL PATRONS

I am very sorry. I should have taken the time to check so I could

give you a complete answer.

Mr. CUNNINGHAM. Thank you very much.

Mr. MURRAY. Mr. Dulski.

Mr. DuLsiu. Thank you very much, Mr. Chairman.

First of all, you probably know that this committee has been functioning for a few years. We have gathered information from all

parts of our country, and after getting our heads together we have

amended the bill to read: "A bill to protect postal patrons from

prurient mail matter," and we have eliminated the word "obscene."

According to Webster, he defines "obscene" as "ill looking, filthy, foul,

disgusting, and offensive."

You mentioned that a man who receives a catalog or a Bible could

say that it might appeal to his prurient interests. Webster defines

"prurient" as "having lascivious longings."

How could you say that the Bible or any piece of material that is

in that catalog would have lascivious longings?

Mr. MILLER. The answer is I probably wouldn't. But as I read the

statute—and if I am wrong I stand corrected; but the way the statute

reads, after the notice provisions have been complied with—

if such person or his minor child receives mail matter mailed in violation of

such notice, which—

And I emphasize this phrase—

in the opinion of such person appeals to prurient interests, and such person

returns such mailed matter to the Department together with his sworn statement

of the pertinent facts, the sender shall be fined not more than $5,000 or imprisoned

for not more than 5 years.

• Now, Congressman

'

as I read that, what I think as a prosecutor—

whether this appeals to the prurient interest or not—has no bearing

on the issue. The issue is whether or not the recipient in his own

subjective judgment felt that it appealed to the prurient interest.

And I know for a fact that there are individuals around the country

who feel that lingerie ads appeal to the prurient interest.

I would have no determination to make as to whether the material

was obscene, that it appealed to the prurient interest or not. That

would be a determination for the recipient.

Mr. DULSKI. That is correct.

Mr. Miller, pursuing the question a little further: I am sure that

there are thousands of cases on the docket right now that are not

being tried because it would be foolish for us to enter into the courtroom.

I know that in many of the internal revenue cases they are settled

because you couldn't prove fraud. There might be a civil penalty

and the Treasury Department settles out of court. But from the beginning the agent who presented the case presented fraud, and it

was accepted at a district level. When it reached a higher level,

though, we couldn't prove it. We would have a hard case to prove

fraud, which is 100 percent penalty plus imprisonment. So they settle for 50 percent, 25 percent: any kind of penalty to settle out of

court. Wouldn't you do the same thing on cases of this nature, Mr.

Miller?

Mr. MILLER. In the first place, if the violation was complete, as it

would be once the affidavit was filed, then we Would go ahead and

prosecute.
PROTECTING POSTAL PATRONS 193

Mr. DULSKI. Regardless of the evidence that you have?

Mr. MILLER. The evidence would be airtight. You would have,

assuming we could prove the notice, assuming that we could prove

that the man executed an affidavit, and that he would still testify that

this matter appealed to this prurient interest: that is all we need prove.

So if I fail to prosecute, then I could be accused, as has happened

in the past, of failing to perform my duties and obligations that I

swore I would perform at the time I undertook this job.

What you are referring to, I am sure, is the normal prosecutive discretion that is vested in any prosecutor. If it is a bad case you don't

like to bring it, and you don't. But here, where you would have, in

effect, a flat direction of Congress that this was a crime, you probably

would not have too much choice in the matter.

Mr. DULSKI. I yield to the gentleman.

Mr. HENDERSON. Is there any other provision in this bill that makes

it a crime?

MT. MILLER. No.

Mr. HENDERSON. Upon the proper filing of the notice and then the

complaint, every district attorney would have to take every case

properly presented to him as a violation and put it on the docket and

try it?

Mr. MILLER. That is right.

Mr. MURRAY. Mr. Udall.

Mr. UDALL. I have no question but I want to make a very brief statement, which I hope will not terminate my beautiful and rewarding

friendship with the gentleman from Nebraska, who is a most valuable

and fearless and independent member of this committee.

I was a sponsor of one of the original bills—not the bill that is before us; 2 years ago Mr. Cunningham and I started off jointly sponsoring legislation on this subject in this Congress. Our bills in the 88th

Congress are somewhat different. I have come to the conclusion that,

while we need additional laws on the obscene material, I don't think

we need this bill as written by the subcommittee. I think that it

would be a mistake to pass it, and I am going to vote against reporting

it to the House.

I am bothered by the question of constitutionality. I think there is

a serious question.

The bill, as I originally, drafted it, had no criminal penalties. All

I was trying to do was to make an end run around this whole problem

of what is and what isn't obscene, and to simply establish a householder's right to get off the mailing lists. The penalty I provided was

simply that the mailer, who we give through the Post Office Department the privilege of sending third-class mail at a subsidized rate,

that if he didn't set up facilities to take my name off mailing lists when

I wanted to get off the lists, whether he was mailing the Bible, or ads

for the Bible or the latest Beatle record, or Shakespeare, or whatever

it might be, he might lose his mailing permit. This was all I was trying to do.

Now the subcommittee has labored long and hard. I have good

friends on the subcommittee. I am reluctant to depart from their

company in this particular issue at this time. But I pondered this for

many recent months, and I am satisfied in my own mind that the solution that the subcommittee reached is One which would t impossible

to administer. It is one of doubtful constitutionality. is one that

-,„
194 PROTECTING POSTAL PATRONS

would put a tremendous burden on the prosecuting agencies of this country. I dont' think it would accomplish what I set out to accom- plish. And while I regret parting company with good friends at this time, I have come to this conclusion, and I want to apprise the committee accordingly.

Mr. MURRAY. Mr. Morrison.

Mr. MORRISON. I don't think there is anyone in this room who is in favor of receiving obscene literature or vulgar matter through the mail

or by any other means of transportation. Nor do I think anybody necessarily has a monopoly on being against obscene literature. I think members of our committee are all honest, upright, honorable, God- fearing, decent citizens, as well as Members of Congress. And I think that we deplore children or anyone else getting obscene literature, just

as much as anyone does. If the proper bill were brought before the committee, that was constitutional and could be enforced, and would remedy the situation, I think the majority of the members would cer- tainly vote for it. It seems to me that we would be getting on very dangerous ground were this particular bill passed and became law. Say a hosiery manufacturer sent ads through the mail displaying 

i hosiery. Sometimes stockings are shown on a woman's leg or there s

a picture of it above her knee. Assuming that advertisement came to

a person and this law was in effect and they said, "I don't like that ad." Or they said, "I don't like that mail coming to me." So they follow the procedure this bill provides and make an affidavit. Would that hosiery manufacturer be subject to imprisonment and a fine or both under this act?

Mr. MILLER. He would if the prior notice required by statute had been given. In other words, the first notice had been given and sub- sequently he received additional mail and he executed the affidavit. Mr. MORRISON. Suppose the notice was given. For instance, the hosiery mill is in operation today and that is the customary ad. The notice was given so he has a choice of either going out of business or continuing as he has been doing. Now, he has gotten the notice and then he continues as he has been doing over the years.

Mr. MILLER. He would be subject to prosecution under this statute. Mr. MORRISON. To go a little further, wouldn't it be possible that

some competitor of his, who doesn't sell through the mail, might want to put him out of business? This would certainly be a good means, as his competitor, to put him out of business, wouldn't it?

Mr. MILLER. This is an area which I have not discussed, but this statute, obviously by placing such a power in the hands of the individ- ual who receives the mail, it does open up the possibility for blackmail and extortion, there is no question about it. I haven't discussed that here this morning, but it is a real possibility. In other words, notice is given through inadvertence or for any other reason, the man gets another piece of mailed matter. He goes around to the sender and says, "Listen, you have 5 years and $5,000 facing you. Maybe we bet- ter talk in the back room. That is definitely a possibility.

Mr. MORRISON. But getting back to that picture which comes in through the mails today, which hasn't been declared obscene at all and which is in all kinds of magazines. If you walk into a department store, you see a like picture or you see two plastic women's leas we will say, with stockings on, which is the only way you can advertise,
PROTECTING POSTAL PATRONS 195

he could just take that one picture, which as far as the general public

of the United States is concerned, has been an accepted way of advertising women's hose for years, he could just say, "Well, I object to it,"

and send the notice and then make the affidavit. If the person didn't

stop his advertising, which by mail was the way he distributed it, and

if he couldn't continue he would have to close down, then he would be

faced with either going to jail or closing down his mill.

Mr. MILLER. That is correct.

Mr. JOHANSEN. Mr. Chairman.

Mr. MURRAY. Mr. Johansen.

Mr. JOHANSEN. Would you be able to tell me what and when was

the last case involving obscenity or obscenity in the mails which was

appealed to the Supreme Court in which the Court ruled for the

Government?

Mr. MILLER. We won the Roth, case. You mean that certiorari was

granted and the case was fully briefed and argued? I think the

Roth case was the last case.

Mr. JOHANSEN. When was that?

Mr. MILLER. 1956.

Mr. JOHANSEN. not familiar with that case. What basically

was the issue there?

Mr. MILLER. The first issue was whether or not the first amendment prohibited Congress from enacting a statute which barred

obscenity from the mails. That was the first issue.

There were, as I recall, two Justices who dissented from the majority

opinion saying that in their opinion the first amendment prohibited

Congress from enacting any statute which would bar obscenity from

the mails or interstate commerce. The majority held that the first

amendment carved out an area where Congress could pass laws which

prohibited obscenity.

The next issue was whether or not the particular publications were

in fact obscene and the Court there established a so-called community

standard test and ruled that the publications involved were in fact

violating the statute and confirmed the conviction.

Mr. JOHANSEN. Were there criminal penalties?

Mr. MILLER. That was a criminal case.

Mr. JOHANSEN. And there was a conviction that stood up?

Mr. MILLER. Yes.

Mr. WALLHAUSER. Would the gentleman yield

Mr. JOHANSEN. Yes.

Mr. WALLHAUSER. Mr. Miller, if we amended this bill to define

the word "prurient" very carefully, make it apply only to juveniles

and substituted on. page 5, line 11, "* * * in the opinion of reasonable

persons" rather than "in the opinion of such person," which in effect

brings it into the community standard area, would this bill then

be satisfactory to the Justice Department?

Mr. MILLER. You must understand, Congressman, I am giving you

an off-the-cuff reaction here.

Mr. WALLHATJSER. I realize that.

Mr. MILLER. Let me run through and give you the thoughts that

come to my mind as to your suggestion. First, if you amend the bill

so that it is applicable to juveniles, you are faced with a Supreme

Court decision which passed on the validity of a Michigan State
196 PROTECTING POSTAL PATRONS

statute. That statute in effect prohibited the sale of publications to adults if they adversely affected children. That was Michigan v. Butler, I think. My recollection is that the Supreme Court said in that case that what Michigan was attempting to do was to make the reading level of juveniles apply to all adults, which the State con- stitutionally had no power to do. So that there is a constitutional issue inherent in any attempt to bar this type of material to juveniles. Mr. WALLHAUSER. Let's forget the juveniles.

Mr. MILLER. That would be one thing I would want to research and

go into further.

The second thing is, and this gives me problems when we are talk- ing about appeals to the prurient interest. Now I assume from what

you have said here today that by using that phraseology, you were attempting to move away from the standard well-known definition of the word "obscene" which is a part of most of the so-called obscenity statutes.

Now, what I am concerned about, in using that phrase, is that if

you take that phrase, in conjunction with Manual Enterprises, a recent Supreme Court decision which suggested you have to have two things to have something which is "obscene," you have got to have an appeal to the prurient, the test we have here, but you also have to have a

publication which is patently offensive. That is the second part.

So, if I take the test, which is in the statute, and there is no patent offensiveness listed here, then I believe that, from the committee's in- tending that this bill should not apply only to publications which are obscene in the judicial sense or statutory sense, it would go further and apply to things which are not legally obscene.

Now, once this is accomplished—and I hope I am not falling off the boat there—once you go beyond the idea of obscene, then immedi- ately you are into a first amendment problem, because what we are trying to do is limit something that is not obscene, but only appeals to the prurient.

Mr. WALL HAUSER. But if we define "prurient," we don't leave it to the judgment of the Supreme Court, do we?

Mr. MILLER. Well, whether you leave it to the judgment of the Supreme Court or not, I think that the courts are going to pass upon whether or not the material is protected by the first amendment, or is, in fact, obscene, regardless of the definition placed in the statute. This is my personal belief from reading the case.

Mr. WALLHAUSER. We are avoiding the word "obscene," so they would have to rule on whether it is prurient or not.

Mr. MILLER. That is correct. That is what I am saying.

Mr. WALLHAUSER. Let's assume we have defined it.

Mr. MILLER. Let's assume you have defined it. Once that happens, then you really have run into a first amendment problem, because

you are talking about matter which is not obscene. You are talking about matter which only appeals to the prurient and, consequently, is not obscene in the statutory or judicial sense.

Then the first amendment comes into play immediately. Then, if I can go on to the next step, Mr. Congressman, then you get down to the issue: you use the phrase "opinion of reasonable persons."

Mr. WALLI1AU5ER. Or "community standards," or something along those lines.
PROTECTING POSTAL PATRONS 197

Mr. MILLER. Well, frankly, I would want very much to take a look

at the language. When you say "opinion of reasonable persons," you

are getting, I suppose, into the area of "community standards," in any

event.

Mr. WALLHAUSER. Of course, your major point in opposing this bill

is that it was the opinion of one person.

Mr. MILLER. That is one of the major points.

Mr. WALLIIAITSER. That is what I am trying to overcome.

Mr. MILLER. Opinion of one person.

Mr. WALLHAUSER. AS to whether it was prurient or not.

Mr. MILLER. Plus the fact that that meant there were no established

standards. Now you would be moving toward establishing constitutional standards which would take out the due process argument, once

you amended the statute to provide an ascertainable standard which

was a part of the law itself.

Mr. WALLITAUSER. Would you say, in summation, that with this

type of approach we are moving toward a more supportable bill by

the Justice Department?

Mr. MILLER. I would certain say, if standards were placed in the

statute, that we are moving away from the due process objection that

I have and we are moving toward something more constitutional on

that score.

And I would offer one other thing which I mentioned in my statement, and I have great difficulty with this. I don't know what the

answer is, to be perfectly frank, but you have decisions of the various

courts as to the right to use the mail—this is a right and not a

privilege.

I am sure you are familiar with these and probably more familiar

than I, but you are going to get into the issue, and I notice it was

raised in the hearings, as to whether or not placing a limitation of

the nature you have here on the right to send something through the

mails does, in fact, create a limitation on the right of freedom of

speech. Basically, the issue would come down to, is it a right under

the first amendment that a man can send something through the

mail? Is that covered by the first amendment?

Mr. WALLHAUSER. I will Say this, in conclusion, that you may

think the war on poverty is very important, and it undoubtedly is

as far as the administration is concerned, but I think a war on obscenity is equally important, because the minds of juveniles, we know,

from having received testimony all over the country, are infected by

a dread disease that cannot be obliterated, even as a narcotics habit

is obliterated in some cases.

I say that the Department of Justice, the administration, this committee, the Congress, and everybody else connected with this problem—citizens, States, counties, and everybody else—should give almost

first priority to it.

Thank you.

Mr. MILLER. I would like to say, while I am opposing this bill as

a lawyer on constitutional grounds, please don't let my opposition

indicate that I, personally, or the Department is not concerned with

difficult problem, as we certainly are.

Mr. WALLHAUSER. You have been responsive and I congratulate

you.
198 PROTECTING POSTAL PATRONS

Mr. JOHANSEN. Mr. Miller, may I ask you one or two other questions. Would you tell me again the date of the Roth decision of the

Supreme Court, or approximately the date?

Mr. 1VITT.T.F.R. 1956.

Mr. JOHANSEN. Now, is that prior to or subsequent to—was it the

Manual Enterprises, The., case?

Mr. MILLER. The Manual Enterprises case was—I have it right

here-1962--Manual Enterprises v. Day.

Mr. JOHANSEN. My question goes to this, as to whether the findings in the latter case, or the grounds on which the findings were

based, have the effect of reversing the Government's victory or revers- ing, at least, the grounds of the Government's victory in the Roth case?

In other words, I notice that the Court no longer abides by its previous decision, or that basic principle is pretty well discarded, so

is it true that, as of now, in consequence of cases and decisions subsequent to the Roth case, it is or would be next to impossible to get

a conviction that would stand up in the Supreme Court in this area?

Mr. MILLER. Well, you have to actually take the various issues that

were in the Roth case. The most important issue in the Roth case, as

I said, is whether or not Congress could enact a statute which prohib- ited the sending of obscene matter through the mail. Now, the Supreme Court said yes, you could, and that is still law. So as far as the Roth decision on that point, it has not changed a bit.

As to the second issue

'

which is basically the test of obscenity, I

would say that the Manual Enterprises case has added an element which perhaps was not present in the Roth case—at least, not empha- sized in the Roth case—the element of "patent offensiveness."

I don't think that it creates any great change or any remarkable

change because, obviously, where you have some hard core pornography which is obscene, it is obviously going to be "patently offensive,"

too. Where it will add another factor to be considered is in the borderline eases.

But I would not say that the Manual Enterprises v. Day case had substantially affected the ruling of Roth.

Mr. JOHANSEN. In other words, then, it is your feeling that there is

some basis, at least, yet, for Supreme Court decisions that will uphold convictions?

Mr. MILLER. Oh, yes, sir. Otherwise, we wouldn't be bringing any prosecution for violations.

Mr. MURRAY. Mr. Watson.

Mr. WATSON. I have two or three questions. I think you will all

agree and certainly the gentleman testifying, that this is a serious problem and you probably know better than anyone in this room that

you have had extreme difficulty in getting convictions under chapter

71. title 18. You have had extreme difficulty, haven't you?

Mr. MILLER. Yes.

Mr. WATSON. Very difficult. Now. as I understood your testimony,

you object to this particular piece of legislation because, first, it vio- lates the due process principle, and secondly, because it permits a sub- jective determination of what, is prurient rather than an objective determf nation. Is that basically it?

MT. MILLER. Yes.

Mr. WATSON. You agree with us that it is a very serious problem

and that something should be done about it, something which is con-
PROTECTING POSTAL PATRONS 199

stitutional and something which you could work actively on in order

to prosecute the offenders is that not correct?

Mr. MILLER. Yes.

Mr. WATSON. All right, sir. Agreeing on those and the fact that

we have a serious problem and you want to do something about it,

would your Department not work expeditiously in drafting a bill

which would cope with this particular problem and present it to the

committee?

Mr. MILLER. Congressman, we will be happy to work with the committee, as we have done in the past, and will in the future. Again

what I would want to do, frankly, if I were posed with this problem,

is to go back to this civil statute, which is 39 U.S. 4001, and section

307, Public Law 87-793, and find out why this is not an efficacious

method of solving the problem we are talking about.

Mr. WATSON. Do you not think, sir, that the criminal provision of

the law is a much stronger way rather than th6 civil procedure?

Mr. MILLER. The criminal method is a very strong way of enforcing

the statute, there is no question about that, but by the same taken, if

you go too far in the criminal area, you have to remember that there

is going to be reaction on some of the constitutional questions. I'm

thinking of civil fraud versus criminal fraud, which is the best example. We can go into a mail fraud case with a criminal statute and

you need a much stronger case than, say, a private plaintiff or even the

Federal Government would need to bring a civil fraud case.

Mr. WATSON. Don't you think that we, as representatives of the

people, should take collective action to try to protect society against

this menace or leave it up to each individual to pursue the matter

civilly? You don't agree to that, do you?

Mr. MILLER. I was not even implying that. I was trying to pot

out the distinction that sometimes when you conduct a criminal case,

which basically perhaps should be handled on a civil basis, the criminal

standard is not as efficacious as might be hoped.

Mr. WATSON. Let me ask you specifically as it relates to this bill,

would you be amenable to the bill or support it if we were to let the

initial determination be a subjective one that is, so far as a matter

of giving the notice to the sender that the recipient does not want to

receive further such mail, and let the second part, when it comes to

the criminal provision, let that be on an objective basis?

Mr. MILLER. As I stated before, that moves toward solving the constitutional problem, but I would want to sit down and look at the

language. I would hate to make a statement here and then come back

tomorrow and say I made a mistake, I didn't mean that at all. This

is too close a question and it is too fraught with peril from the Supreme Court standpoint and freedom of speech standpoint to try to

draft legislation. If we are talking in generalities, the answer is yes,

but what I would want to do is see exactly what the proposal was

and sit down and study it very carefully.

Mr. WATSON. One final question and then a suggestion, if I may.

If we were to amend this bill so as to provide a hearing, as I understand it, that is the only problem then so far as getting around the

due process provision. In the Walker case they said the postmaster

could not take this action without first providing the sender with an

opportunity to have a hearing. If we would provide for a hearing,

we would get around the constitutional provision by allowing an ob-
200 PROTECTING POSTAL PATRONS

jective determination of what is prurient. Do you believe that would

then meet your objections?

Mr. MILLER. I think it would certainly move toward it. It would

raise again, as I stated earlier, the additional problem which,. frankly,

I haven't gone into deeply enough to be able to give you an informed 

judgment, but you are getting into this question of suppression of

sending items through the mail, which was brought up earlier in the

hearing. I just haven't had time to go into it deeply. It is a constitutional issue and I do know it requires further study.

Mr. WATSON. Is the sending of material through the mail a privilege or a right?

Mr. MILLERS As far as I am concerned, reading the decision, it is

a right.

Mr. WATSON. It is a right. Do you not believe if a person has a

right to send such material through the mail or mail matter through

the mail, a fortiori, isn't there a corresponding right of the recipient

to determine what should come into his home?

Mr. MILLER. That is the very constitutional issue which I attempted

to raise just a second ago.

Mr. WATSON. I won't pursue it further, but I would like to urge

the gentleman in view of the job that was done by the Justice Department last November in getting together a rather voluminous bill,

that you should immediatelY get together and try to work out some

legislation to meet this very grave problem. We can talk about it,

we can come too-ether, and I am a great one for not saying that this

thing is bad unless I have something to correct it or a substitute which

would meet the problem, and if I might respectfully urge you and

your Department to help us out on this particular thing as expeditiously as possible.

Mr. MILLER. We will happy to.

Mr. DERWINSKI. Mr. Chairman.

Mr. MURRAY. Mr. Derwinski.

Mr. DERWINSKI. I would like to associate myself with the remarks

and questions Mr. Watson raised except to make this one general

observation. We discussed this in committee last week and some of

the members voiced objection to having the Justice Department voice

their opinion on the grounds that we are putting ourselves in the position, as a legislative committee, of asking the executive branch to

screen all our legislative thoughts. Now this is a bad precedent,

even though it is followed rather consistently. We have our committees, we have our own sources of information and our job is to

legislate. Their job is to enforce and prosecute and I presume the

Supreme Court properly interprets. For us to put ourselves in the

position on every issue of asking, what will the Supreme Court say

or what will the Justice Department do, is really denying ourselves

our own legislative powers. While I am pleased to have all the help

that the genius of the Justice Department may give, I would like to

feel that they were following our lead rather than leading us along

and I would certainly hope that the Justice Department isn't so blind

that they don't recognize the abuses in this field of pornographic

material.

We have Members of the Congress who are of the opinion that the

Justice Department advice in other areas has been less than constitu-
PROTECTING POSTAL PATRONS 201

tional. Now, the point is, Mr. Miller, granted that we are entering

a very delicate legal field, we also recognize that there is consistent

abuse by the peddlers of filth and I would think that this would call

for efforts on the part of your Department to be understanding of our

objectives rather than being technically rigorous in objecting. I

would presume, and I can't Judge the thoughts of the committee, but

I would think you would continue to pursue this and, therefore, you

cooperation rather than a cold-blooded interpretation of the law

would be much more helpful.

If you care to comment in any way 

Mr. MILLER. I would only say that I feel that I have performed my

job whenever I make a cold-blooded interpretation of the statute.

Mr. DERWINSKI. Thank you, Mr. Chairman.

Mr. MURRAY. Any other questions?

Mr. Corbett.

Mr. Comm= First of all, I have to disagree somewhat with my

colleague because in writing legislation here, we certainly, should

consult with those that have to enforce it or administer it and I welcome the gentleman's appearance here this morning and welcome all

the help we can get in trying to arrive at a determination. I will

agree with the gentleman that ultimately the decision is ours, but to

deny ourselves access to any and all available thinking is a mistake.

The question I would like to ask, Mr. Chairman, of the witness is

whether or not in using the word "prurient" instead of "obscene"

hasn't the subcommittee made the problem much greater? If they

had use the word "obscene," we have definitions and we have court

cases on it. Obscenity is certainly more blatant than prurient.

Mr. Mrr.T.F.R. I would say that it introduces a new concept into a

field where you have a settled concept of what is obscene. I assumed,

however, that the intent of the drafter was to go beyond the old

concept of obscene and into, in effect, a new area and talk about using

the phrase "appeals to the prurient."

Mr. CORBETT. When you get into that field, then you get into the

field where most anything that is even slightly suggestive might, in

the opinion of some person, be prurient.

Mr. MILLER. That is correct.

Mr. CoRBErr. And we have no definition that would be anywhere

near as binding as the definitions that have come about as to what is

obscene.

Mr. MILLER. I agree with that.

Mr. CORBETT. Now, I'm thinking if we went back and reenforced

existing civil statutes with some criminal implications, wouldn't it

then be possible for the prosecution to determine whether to bring a

civil or a criminal case?

Mr. MILLER. Well, a civil procedure would be all the additional

tools, if you want to call it that, the Department of Justice would

need because if the matter is obscene a statute is on the books and we

could prosecute now. What I understood the statute was aiming at

was attempting to let each recipient decide what would come into his

home. If it is obscene matter, there is no problem.

Mr. CoRBErr. The problem they are trying to attack, and I couldn't

agree more, is having this material come to either adults or adolescents
202 PROTECTING POSTAL PATRONS

in somewhat of an invasion of their privacy. And how you get at

this, they have adopted the language of "within the person's opinion."

I objected to that. I think it has to be in the opinion of somebody

else or some group or something because this would just leave the

situation open to anybody, even on a whim, to bring legal action and

that is just not in accordance with our form of Government.

Mr. MILLER. That is what we felt.

Mr. CoRBETT. Therefore, I would go along with the suggestion of

Mr. Watson, that recognizing fully what Mr. Cunningham and others

are driving at, is can we have some alternative to consider? That is

what you wanted, isn't it, Mr. Watson?

Mr. WATSON. I want something to take care of the problem; yes,

sir, that they would be able to support us because I recognize a fact

that if we don't have the support of the Department, it would make

the job of passage a lot more difficult.

Mr. CORBETT. I want to concur with the gentleman.

Mr. CUNNINGHAM. Would the gentleman yield?

Mr. OLSEN. Mr. Chairman.

Mr. MURRAY. Mr. Olsen.

Mr. OLSEN. I will yield to the gentleman.

Mr. CUNNINGHAM. I want to say the reason we had to put "prurient"

in there, and I certainly disagree with you, Mr. Miller, is that they

can't define "obscenity." The courts are knocking us down right and

left because there is no good definition of obscenity. So we are following what the court said was obscene by using the word "prurient." It is

all right to be in favor of the so-called principle of all of this, but I

want to do something about this problem. I have been working on it

for 8 years with the subcommittee all over the country. This is one

thing we think we can use to deal with the problem. If anybody else

has any other suggestions, I wish they would have given them to us.

Mr. OLSEN. Mr. Miller, do you know of any other criminal act,

defined by Congress, wherein the subjective test plays such a dominant

role?

Mr. MILLER. There may very well be some but I sure can't think of

any.

Mr. OLSEN. Several of us have been sitting here and we have been

trying to think if there was any precedent at all for a subjective test

to be the dominant factor in defining a crime.

Mr. MILLER. I will say this, we tried to find, in the brief time we had

to do research, any case which would have a direct bearing on this type

of a statute and none was found.

Mr. UDALL. Will you yield?

Mr. OLSEN. Yes.

Mr. UDALL. I simply want to concur with the general point made

here by a number of members. I haven't given up trying to do something on the problem. I think it can be done. I feel the bill I originally introduced had certain deficiencies which led me to the conclusion that it wasn't the answer. I think I was on the right track. I

have also concluded that the bill we now have before us from the subcommittee is not the answer and has many defects. And, as I say,

I haven't given up. I hope we can send this back to the subcommittee and working with the Justice Department and Post Office Department come up with something that will meet the problem. This
PROTECTING POSTAL PATRONS 203

is what I would like to see done. I want to make my position clear

that I haven't given up.

Mr. JOHANSEN. Will the gentleman yield?

Mr. OLSEN. Just a minute, I have the floor. Mr. Miller, the usual

standard, when defining the crime, is determined by a legislative body,

isn't it?

Mr. MILLER. Yes.

Mr. OLSEN. And that is something that has been lacking in this field.

No legislative body has attempted a definition of "prurient."

Mr. MILLER. No definition of "prurient." Even a definition of "obscene" has been left pretty much to the courts, although if you will

look at 18 U.S.C. 1461, you will see that in conjunction with the term

"obscene," you get into lascivious, lewd, and several other words which

are of the same type.

Mr. OLSEN. If in this act there were an adoption of the court test

or an objective test, defined by this committee, then the constitutional

objection would be less?

Mr. MILLER. The due process argument would go by the board if

there were in fact a legislative standard so that people could ascertain

whether the conduct would or would not violate the statute. It is just

a fair play argument.

Mr. OLSEN. Would you be willing to work with the subcommittee

on this subject now of trying to make a standard?

Mr. MILLER. Certainly.

Mr. OLSEN. I think that Mr. Watson has come upon what would be

a fair solution to continue work on this subject and have the matter

go back to the subcommittee for that purpose.

Mr. GROSS. Mr. Chairman.

Mr. MURRAY. Mr. Gross.

Mr. GROSS. Mr. Miller, you need not comment on this because I

believe you have already stated that you are not too well acquainted

with the pending civil rights bill, but I have been very much interested

in the Justice Department's response this morning to the statement

that this proposal to curb obscene literature would cause a lot of complaints to be filed. I believe you responded in the affirmative when

you were asked a question if under the terms of this bill there would be

a great many,complaints filed?

When the civil rights bill was drawn by the Justice Department,

it apparently had no such concern with respect to that proposal because it invited complaints, so this is quite interesting to me from that

standpoint. You can comment on that if you like, but I am not asking

you to.

Mr. MILLER. I would like to comment on it. I merely stated in

answer to a question that there would be a number of complaints and.

I will go further and say this, that we want complaints at the Department of Justice because there are many Federal criminal statutes on

the book and I solicit, every time I go out to give a talk, the people to

come in and tell me about violations of Federal criminal statutes because without the citizen performing that duty, my job is a very

difficult one to perform.

Mr. GROSS. So there would be no opposition to this bill from the

standpoint of the fact that it would result in a great many complaints

being filed?
204 PROTECTING POSTAL PATRONS

Mr. MILLER. That will be a determination for the committee to make.

Mr. GROSS. I am glad to clear that up. Now, let me ask you this: question. Would one who has been complained against as having violated the provisions of this proposed bill be entitled to trial by jury?

Mr. MILLER. I assume so.

Mr. GROSS. I would hope so.

Mr. MILLER. I have assumed that throughout.

Mr. GROSS. I would hope your answer would be in the affirmative

because under the Justice Department's civil rights bill many people

are denied the right of trial by jury, as I'm sure you know. That is

one of my objections to it, I might add.

Mr. MILLER. I wish that I were more familiar with the civil rights

bill, Mr. Gross, because I would be very happy to discuss it with you.

Mr. JOHANSEN. Mr. Chairman.

Mr. Ml7RRAY. Mr. Johansen.

Mr. JOHANSEN. Let me clear up one point as to the Justice Department's position. My friend from Arizona, Mr. Udall, said that he'

felt there was some way, by further pursuit of the matter, we could

work out a solution of the problem. If I understood your testimony,

the Justice Department doesn't acknowledge a problem here in the

sense of requiring any additional legislation. Do I correctly understand that is the position of the Department?

Mr. MILLER. The position of the Department is that additional'

criminal statutes are unnecessary. I might say that additional criminal statutes, if they go beyond those on the books now, I think you

will find, will be stricken as unconstitutional. I do think, however,

that there is a formula that might be followed which is already on

the statute books and which I did not even realize existed, as a matter

of fact, and that is where a person receives matter through the mail

that he does not want or considers it obscene, lewd, or what have you,

he notifies the Postmaster General and the Postmaster General then

retains mail of that nature which is addressed to him. Now this, to.

me, obviates many of the issues that we have been discussing here.

this morning. I didn't come here to discuss that type of a thing, but

just looking at the picture, I think probably this is the way, and it

is already on the books, that we could take which would balance—

which is basically what we are trying to do—the right of somebody

to communicate through the mail with the right of the person, including myself, not to have this trash dumped in my mailbox.

Mr. JOHANSEN. Is the gentleman saying then, and I'm not arguing

the point, is the gentleman saying that the discovery of this provision

is—is that a regulation or a law?

Mr. MILLER. I understand it is a statute, section 307, Public Law

87-793. which was passed in 1962.

Mr. JOHANSEN. I would assume, therefore, that you are arguing that

the existence of section 307 is a further argument against the need

for any other legislation?

Mr. MILLER. I probably would argue that, once I got into it. I

would have to read this and see the legislative history.

Mr. JOHANSEN. Let me ask a further question, if the gentleman will

yield.

Mr. GROSS. Yes.
PROTECTING POSTAL PATRONS 205

Mr. JOHANSEN. Has there been previous testimony before the subcommittee—and perhaps I ought to direct this to the chairman of the

subcommittee. For my information, has there been previous testimony

by the Justice Department or is this the very first appearance?

Mr. D1TLSKI. Very first appearance.

Mr. JOHANSEN. Has there been a reluctance on the part of the Justice

Department to testify?

Mr. DurLsKr. No • not any reluctance.

Mr. JOHANSEN. 'here were requests for a report?

Mr. DITLSKI. No; no request. H.R. 319 as introduced did not include

the penalty provision and there was no basis on which to request the

Department to comment. The penalty provisions are included in the

amendment proposed by the subcommittee.

Mr. JOHANSEN. Well, I differ in a slight measure with my good

friend from Illinois. I think it is helpful to have those reports. I

don't think it is binding on the committee or the Congress to accept the

judgment of the Justice Department, that is the last thing I would

suggest. I realize again we are getting into the area of the civil rights

issue, but it strikes me that there is a parallel. The objection is raised

very strenuously here with respect to prurient or obscenity, that it involves a subjective determination or judgment. Wouldn't that apply

also to the statutorily undefined concept of discrimination? Doesn't

that involve an element on the part of the complainant of subjective

judgment?

Mr. MILLER. I would think that if the term "obscene" had withstood

attack in the Supreme Court, that the term "discrimination" would

also.

Mr. JOHANSEN. I didn't get that last?

Mr. MILLER. I would think that if the term "obscene" had withstood

attack in the Supreme Court on the basis that it was too vague and did

not establish a discernible, ascertainable standard, that the same thing

would be true of the term "discrimination."

Mr. JOHANSEN. Has that been true with respect to the term "obscene"?

Mr. MILLER. The term "obscene" has been upheld as establishing

enough of a legislative standard so that the statute is not unconstitutional.

Mr. JOHANSEN. One final question. Is it your judgment that, recognizing you have just encountered it, that this statute governing refusal

of the mail is an adequate weapon against the financially vested interests of those that are promoting this type of obscene literature as a

massive commercial enterprise?

Mr. MILLER. I certainly think that this provision can be used very

effectively. I wouldn't want to say that it is the complete answer, I

don't know whether it is or not, but certainly as I read it, this is attempting or has done much of what is attempted to be accomplished

in H.R. 319 on a civil basis.

Mr. JOHANSEN. I would be interested in knowing—I'm not sure you

are in a position to answer.

Mr. MILLER. I really am not.

Mr. JOHANSEN. As to the extent to which the Post Office Department

itself has given publicity to this provision as a device for the protection

of privacy in the home.
206 PROTECTING POSTAL PATRONS

Mr. MILLER. That I do not know. I know that Mr. Doyle, the General Counsel of the Post Office Department, when he appeared here, made mention of this and I think he said that they were utiliz- ing it and it was effective. I would have to go back and check his testimony.

Mr. JOHANSEN. That is all.

Mr. MURRAY. Any other questions?

Mr. JOHANSEN. I wonder if the chairman of the subcommittee could enlighten the record any as to the extent to which the Post Office Department has utilized the statutory provision and I would like to have the comments from the gentleman from Nebraska as to his feel- ings, as to the inadequacy of it.

Mr. DuLsKi. Mr. Doyle commented on that in his statement to the subcommittee which may be found on page 111 of the hearings held

on June 25,1963.

Mr. JOHANSEN. Will the gentleman from Nebraska care to comment

as to what inadequacies he feels this statute involves?

Mr. CUNNINGHAM. It is ridiculous. It is like when we tried to get through the Communist political propaganda legislation and the Post Office Department said they were going to put a poster up in all of the post offices. It is an impossible monster for the post office people to administer. As I said, you could have a room this big and the letter carriers every morning would have to look around and see whose

names are listed and then check those letters that are addressed to homeowners to see whether they are supposed to get them or not. It hasn't done a thing about the problem and it doesn't do anything about the invasion of my privacy when I don't want this. People don't know there is such a statute as far as this is concerned, but it is ineffective because it doesn't get at the list broker, the guy that takes my child's name, who sends in for an innocent little article, and sells that for a profit to an obscene dealer. It doesn't do anything to reach that problem and this is the crux of the whole thing. Mr. MILLER. That may well be.

Mr. WALLHAUSER. If the obscene material comes in a plain envelope, there is no way in knowing from whom it is mailed.

Mr. MILLER. They have to rely on the return address.

Mr. JOHANSEN. Actually, the administration of this provision could be completely circumvented merely by the evasion of a no return address on the envelope.

Mr. MILLER. I assume that is the case.

Mr. JOHANSEN. Then this isn't a very substantial crutch.

Mr. MILLER. By the same token, an individual such as myself could inform the Postmaster that I wanted no mail that did not have a

return address on the outside of the envelope.

Mr. JOHANSEN. I am certain the gentleman wouldn't want to inform the Postmaster of that.

Mr. MILLER. It would keep away a lot of bills.

Mr. JOHANSEN. Now you are in an area I would be glad to legislate

on.

Mr. MORRISON. It is 2 minutes to 12 and I wish to inquire before the Ho_liSik go to session if we couldn't dispose of the matter by the suggestion by the distinguished gentleman from Montana, Mr.
PROTECTING POSTAL PATRONS 207

Olsen, that the bill be referred back to the subcommittee for further

study.

Mr. CUNNINGHAM. I will make a point of order, Mr. Chairman. A

quorum isn't present. I want to dispose of the bill that Mr. Dulski

has on post office leasing and have this continued to next Thursday as

time has run out and the House will be in session in a few minutes. So

I would have to make a point of order of no quorum if the gentleman

persists.

Mr. MURRAY. There is no quorum present.

Mr. CUNNINGHAM. I don't make the point, but I will if the gentleman from Louisiana persists in his suggestion.

Mr. MORRISON. I was just trying to find a solution to this matter,

that it should go back for further study, and the Department representative said he would give you further information, suggestions, and

the like toward getting out a bill.

Mr. CUNNINGHAAM. The gentleman only speaks for the Criminal

Division. I would like to have something more concrete from the

Department.

Mr. MORRISON. It wouldn't be constitutional and something he could

enforce. So I believe—I talked to the chairman and he said he had

no objection to the bill being returned to his subcommittee. I was just

trying to be helpful.

Mr. CUNNINGHAM. I prefer that it go over to be the first order of

business next Thursday.

Mr. JOHANSEN. I make a point of order. The House is in session.

Mr. MURRAY. Bells are ringing. The committee will stand adjourned until next Thursday, a week from today, at 10 o'clock.

(Whereupon at 12 noon, the committee was adjourned to reconvene

on Thursday,

(Whereupon, 

23, 1963, at 10 a.m.)

0