Association of American Publishers, Inc.

One Park Avenue

New York, NY 10016

Telephone 212-689 8920

Cable BOOKASSOC NEWYORK

April 27, 1978

Hon. James R. Mann
Chairman

Subcommittee on Criminal Justice
Committee on the Judiciary

U.S. House of Representatives
Washington, D.C. 20515

Dear Congressman Mann:

At the Subcommittee's hearing of March 1, 1978 on the Criminal Code
Reform Act of 1978, you requested the AAP to submit proposed sections
on obscenity as we like to see them. (Hearing transcript, p 233) We
have prepared the requested proposals, working from S.1437 as passed
by the Senate on January 30. We would request that these proposals
be made a part of the record if that is considered appropriate.

There are two general comments to be made with respect to these pro-
posals. First, while AAP views the attached obscenity provisions as
superior to the Senate version and commends each of the proposed re-
visions to the Subcommittee's attention, we wish to reiterate our
strongly-held preference that the federal Criminal Code should include
no federal obscenity legislation. In this, as noted in our previous
testimony, we are joined by many prominent groups and legal scholars
including the House of Delegates of the American Bar Association, the
ABA's Section on Criminal Justice, the Commission on Obscenity and
Pornography, a "substantial body of opinion" on the National Commission
on Reform of Federal Criminal Laws and the sponsors of H.R. 2311, also
pending before this Subcommittee.

Second, we should make clear that the statutory scheme embodied in the
enclosed proposal departs, in a number of respects, from existing legis-
lative proposals, e.g., in its treatment of the dissemination of sexually-
related materials to willing adults and its definition of what constitu-
tes "obscene material." Once again, we believe AAP's proposal is con-
sistent with a large and prominent body of opinion and reflects a wise
course for any such legislation Nevertheless, AAP does not wish to con-
vey to this Subcommittee the impression that any legislation which fails
to embody all of the provisions proposed herein intended to represent a
comprehensive checklist of potential areas for statutory reform
arily would fail to improve upon either existing, or the Senate's propos-
ed, federal obscenity law. We do not believe this to be the case.
hog
MAY 1 - 072

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necess

As set forth in AAP's Summary of Testimony presented to this Subcommittee on March 1, AAP believes that certain aspects of the draft obscenity legislation as passed by the Senate are so fundamentally deficient as to mandate revision -- e.g., new section 6035 of Title 39 which would appear to be unconstitutional as passed by the Senate. With respect to certain other, less blatantly deficient areas, we believe that this Subcommittee should nevertheless seize the opportunity to clarify and narrow the federal role in regulating obscenity, in light of existing mores and the paramount state role in this field.

Please let us know whether we can be of further assistance to you or to the Subcommittee or its staff.

Respectfully submitted,

Henry R. Kaufma

Henry R. Kaufman
AAP Legal/Counsel

Enclosure

CC: Members of the Subcommittee

AMENDMENTS TO THE OBSCENITY-RELATED
PROVISIONS OF S.1437 -- PROPOSED BY THE
ASSOCIATION OF AMERICAN PUBLISHERS, INC.

"1842. Disseminating Obscene Material*

"(a) Offense. -A person is guilty of an offense if he[.

(1)-disseminates-obscene-material:

"(A)-to-a-miner;-er

April, 1978

"(B)-to-any-person-in-a-manner-affording-no-immediately effective-opportunity-to-avoid-exposure-to-suck-materials;-or

"{2}]]intentionally or recklessly1A commercially disseminates obscene
material (1) to a minor2 or (2) to any person in such a manner as,

in fact, to afford no immediately effective opportunity to avoid
exposure to such material3.

"(b) Definitions. -As used in this section:

"(1) 'commercially disseminate' means to disseminate for profit and shall include nonprofit means of mass communication;

"(2) 'contemporary community standards' means [the-state-er-local Community-in-which-the-obscene-material-is-disseminated] standards

prevailing nationwide;4

"(3) 'disseminate' means:

"(A) to transfer, distribute, dispense, rent, [end]5 display, exhibit, send, or broadcast, whether broadcast for profit or otherwise; or

"(B) to produce, transport, or possess with intent to do any of the foregoing;

"(4) 'minor' means an unmarried person less than seventeen years old but shall not include a person who is emancipated or who has provided convincing evidence of majority to the disseminator; 6A "(5) 'obscene material' means material that:

"(A) sets forth in a [patently-offensive-way] manner patently offensive to the average person, applying contemporary community

standards7;

"(i) an explicit, detailed photographic or pictorial

representation[-or-a-detailed-written-or-verbal-description;]8

of an act of sexual intercourse, including genital-genital, anal-
genital, or oral-genital intercourse, whether between human
beings or between a human being and an animal; of masturbation;
or of flagellation, torture, or other violence [indicating-a
sade-masochistie-sexual-relationship] in the context of sexual
intercourse or masturbation9; or

"(ii) an explicit, close-up representation of a human genital
10
andl

organ;

"(B) taken as a whole, appeals predominately to the prurient interest of:

"(i) the average person, applying contemporary community standards; or

"(ii) the average person within a sexually deviant class of persons, if such material is designed for [dissemination] and disseminated primarily 10A to such class of persons; and

"(C) taken as a whole [-tacks-serious-artistic,-scientific,-literary,-or-political-value-] is utterly without redeeming social

valuell

"(6) nonprofit means of mass communication' means not-for-profit broadcast stations or networks licensed by the Federal Communications Commission;12 12

"(7) 'prurient interest' means a morbid or shameful interest in sexual excitement or stimulation;13

"(8) 'average person' means an adult of normal sensibilities and

shall not include children or particularly susceptible or sensitive adults.14

2

"(c) Affirmative Defense. -It is an affirmative defense to a prosecution under this [sub]section [fa)(1)(B)-er-(a)(2)] that dissemination of the material was legal in the political subdivision or locality in which it was disseminated. 15 "(d) Affirmative Defenses. -It is an affirmative defense to a prosecution under this section that dissemination of the material was restricted to:

"(1) [a-person-associated-with-an-institution-of-higher-learning,-either as-a-member-of-the-faculty-or-as-an-enrolled-student-teaching-er-pursuing a-bona-fide-course-of-study,-or-conducting-or-engaging-in-a-bona-fide-re

search-program,-to-which-suck-material-is-pertinent] institutions or persons

having scientific, educational, governmental, or other similar justification for possessing such material;16 or

"(2) a person whose receipt of such material was authorized in writing by

a licensed or certified psychiatrist, psychologist, or medical practitioner[.];

or

"(3) noncommercial dissemination to personal associates of the disseminator.17
[OPTIONAL: (4) dissemination carried on in such a manner as, in fact, to
minimize risk of exposure to children under seventeen or to persons who had
no effective opportunity to avoid exposure to such material.]18

"(e) Grading. -An offense described in this section is a Class [E-felony ] A misdemeanor. 19

"(f) Jurisdiction. -There is federal jurisdiction over an offense described in this section if:

"(1) the offense is committed within the special jurisdiction of the United States;

"(2) the United States mail or a facility of interstate or foreign commerce is used in the commission of the offense; or

"(3) the material is moved across a state or United States boundary in the 20 commission or consummation of the offense."

20-720 0-70 - nt 137