Mr. KEENEY. I have been advised by Mr. Nicholson that the Post Office Service and the FBI now have under investigation 20 cases where children are being depicted as being engaged in what we might describe as hard-core pornography.

Mr. Conyers, addressing yourself to "Do we need another law?" we have had a number of convictions in the last year-we had 84 convictions of all types of pornography. They didn't all include children, obviously. We have had some-I believe you have noted in the papers in the last 10 days there have been instances of local proceedings against people engaging in child abuse, the situation in Tennessee being one example I really can't give you statistics better than that with respect to the scope of the problem.

With respect to handling the problem from a constitutional standpoint, I try to make the point that to the extent that you can treat the offensive conduct in isolation and it can constitutionally be treated in isolation, so that anytime we find the use of the interstate facilities to disseminate or distribute depictions of this conduct, that would be an improvement.

We do have a serious constitutional question though as to whether or not the courts would go along and allow criminal penalties to be imposed where the offensive conduct is found or the portrayal of the offensive conduct is found in what would be a totally acceptable product when it is viewed in its entirety.

I did make certain suggestions, Mr. Conyers, as to alternatives, none of which would be totally satisfactory if the intent of the committees is to totally proscribe the use of interstate commerce facilities for the transmission of this type of conduct.

There are certain things, as I mentioned to Mr. Brademas, that we can do. We could broaden-I think that would be desirable in any event-broaden the Mann Act so that it includes males as well as females, and all facilities of commerce in addition to common carriers.

Mr. Conyers, this is a very difficult area. I think that Congress has to face up to a very serious public policy issue as to how far it wants to go in testing the constitutional power of Congress to proscribe certain conduct that is obviously offensive to all of us.

Mr. CONYERS. Well, I thank you for your response.

I would like to just share with our colleagues in the Congress that our staff is working on a change in the Mann Act. There are several sections of it, and we will keep you advised; and we are aware of that.

Isn't the problem, as I hear you articulating it, a question of how far we want to go in prosecuting people that may be involved in this conduct?

Let's start off with the moviemaker and the procurer and the backer, the parties who are clearly starting out with a notion of breaking the law and of involving young kids in a terrible kind of act. There isn't anything in Federal and State law right now that prohibits a prosecutor, an assistant U.S. attorney, from going after these people all the way right now; isn't that the case?

Mr. KEENEY. There is nothing to preclude the State prosecutors from going against them; that is true. With respect to Federal prosecution under the obscenity laws, we have some difficulty in that the statutes do not clearly cover producers and filmers and so forth.

Mr. CONYERS. Wait a minute. You mean the fellow taking the picture is covered under the existing law?

Mr. KEENEY. We have to somehow bring in a conspiracy charge, where we have to show they have knowledge of the fact that they are involved in the total conspiracy with the disseminators of the product.

Mr. CONYERS. Well, let me read a summary of the Federal law that I think applies to them. There are presently five Federal laws which prohibit distribution of obscene materials in the United States. One prohibits any mailing of such materials, 181461; and another prohibits the importation of obscene materials into the United States. Another prohibits the broadcast of obscenity and two laws prohibit the interstate transportation of obscene materials or the use of common carriers to transport such materials.

In addition, the 1968 Federal Antipandering Act authorizes postal patrons to request no further mailings of unsolicited advertisements. Now in all of these five Federal laws are you suggesting that a person who deliberately starts out taking obscene pictures of young people isn't caught?

Mr. KEENEY. He would have to be responsible for the mailing or to have caused the mailing. That is an area where these statutes could be improved.

Mr. CONYERS. Well, couldn't we merely amend any one of these present acts to just include that language in it?

Mr. KEENEY. I suggested that, Mr. Conyers, that I think it would be a good idea, that is, as an alternative that could be done.

Mr. CONYERS. All right. Now let's look for a minute at using your judgment and experience at the State laws. There are a number of State prosecutions going on with pornography. We know it is a new, increasing phenomenon, especially in urban areas. Many of the big cities are in locked battles. In many areas one attorney represents many of the producers and distributors of obscene film and, of course, he stands ready with injunctive relief to go in for any of his clients who are closed down or prosecuted or arrested or padlocked by local police.

Is there any problem that you see broadly with State prosecution being increased at the State level, simultaneously perhaps with us amending the Mann Act and making the kind of description of violations that would catch filmers and producers that are associated in the production.

How do you see the State laws, in short, on this subject?

Mr. KEENEY. The State laws insofar as the filming or production takes place in an individual jurisdiction, the State laws inasfar as I am aware, in my judgment are adequate. Most of them would come within contributing to the delinquency of a minor or similar child abuse statutes.

I don't have much problem in finding that if you can demonstrate the conduct was done in a State jurisdiction that the State laws, I think all of the State laws, would adequately cover it.

The question of enforcement comes up with respect to State manpower available to enforce; but the question also comes up, Mr. Conyers, in relation to the material that is produced in other jurisdictions and then is exhibited in the particular jurisdiction. I suppose that is where the Federal Government proposal belongs because it is an

area of difficulty, particularly if you are dealing with something that was produced outside the country and then brought into a particular State.

The State can only proceed if they have an appropriate statute against the person who is actually showing the film in their area. They really cannot get at the other people. That is an area where by one means or another, I suppose-I know it is the responsibility of the Federal Government, the Department of Justice, to try to move into those situations.

Mr. CONYERS. Thank you very much. I would like you to send me a breakdown of those cases that have been prosecuted federally after these hearings.

Mr. KEENEY. Yes, sir.

Mr. BRADEMAS. Mr. Jeffords?

Mr. JEFFORDS. Thank you, Mr. Chairman.

I think we ought to determine whether we are going to be talking about child abuse or obscenity, and most of our attention up to this point has been focused on obscenity. It seems to me that if we took an approach more directed at child abuse we might have more flexibility in our statutes, and perhaps be able to approach it from different directions. But before I get into that, I would like to talk a bit about what you were talking about, that is, enforcement problems. At least from our testimony from the west coast, the primary problems of prosecutors out there with enforcing the State laws involve venue problems, and in the case of this statute, problems such as establishing the age of the actors and not knowing where the filming took place.

I wonder if you have given any thought, or if you might consider the approaches which were taken, when this country had problems with child labor laws? That is, to try to eliminate abuse of child labor by requiring certain things to be done. Primarily I am referring to certification situations where it might be possible for us to require anyone that produces any film, picture, or photograph to disclose, and not anything other than disclosure, the time, place, ages, and names and addresses of anyone involved in these sexual activities, age 18 or under. This would have the primary purpose of assisting local prosecution in establishing the scene of the crime; and this, combined with similar State statutes, then makes the failure of anyone distributing or selling or making this material without filing such certification, or without a certification attached, a violation. Hence, the violation from a Federal point of view would be merely the filing or the failure to file, or the failure to have attached a certificate indicating the names, ages, and so forth. Therefore we can get out of the obscenity problems and merely help the local prosecutors to establish where the scene of the crime took place, and to prosecute under their existing statutes.

I realize that this may have come to you as a matter of first impression, but I wonder if you might have any thoughts or discussion on this?

Mr. KEENEY. Mr. Jeffords, that is an interesting idea. It was mentioned to me this morning, that thought, and I think it is worth exploring.

I gather that you would have in mind a certification by the producer of a film that all of the persons appearing in the film are under a cer

tain age, over a certain age, 16, I suppose, as in these bills, and also certifying as to where all the scenes in the films were shot?

Mr. JEFFORDS. That is all it would require, "In our film we have a sexual act by a person under age 18; it was filmed in Los Angeles”whatever location might be necessary, to make sure we establish venue on a specific date," and at that time Joan Smith, age 15, was involved in the production."

There would be no censure aspect attached to the certificate but merely the establishment of the time and place and where the actions took place; then the States would have that information available to them, and if this material was not uncertified or sold in the black market, it would be very easy to bring the distribution of such material under control, rather than getting involved in the hustler problems and all the other obscenity problems we get into when we try to amend or attack it purely on obscenity grounds.

Mr. KEENEY. I see several problems in connection with it.

I am not sure any of them are insurmountable. I think it is something we should explore.

I think one of the threshold problems we face is that in imposing this penalty on the producers, say, of motion pictures, is it a substantial interference with their first amendment rights. My initial reaction is that it is not.

The second problem is, we are trying to accomplish indirectly what we may feel we cannot accomplish directly, namely, proscribing criminal conduct which would not meet an obscenity test.

The first problem I see is what we in the Department of Justice call the Grosso-Marchetti test; that is, where you require somebody to file a document or make a certification in an area that is surrounded by criminality, and the courts have struck that down. I am not sure that we have a Grosso-Marchetti situation here but I would like to think about all of these areas; I think it is an interesting suggestion.

Mr. JEFFORDS. I want to then move to what I originally talked about, and that is, it seems to me we ought not to focus as much on obscenity as we ought on child abuse, if the conduct we are trying to proscribe is criminal child abuse. If there is evidence of abuse, I suppose, it would take more expert testimony than we may have had on the kind of conduct which we are trying to proscribe here. If it is the abuse of a child, as I believe it would be in most independent cases under the Kildee bill, should not we take it in terms of child abuse; and it would seem to me we would have much more flexibility, as far as getting away from first amendment problems, if we looked at it in terms of being abusive to a child, rather than as obscene to the viewers. If we proscribe these activities, as we have done in other areas, such as in the child labor laws, it would seem to me, for instance, if we were to say that some of these activities, or abnormal sexual acts, are proclaimed to be abuse of a child; if we could uphold that with expert testimony and call it child abuse rather than obscene material, would we not have more flexibility and more likelihood of being able to meet the first amendment test, especially when we are talking about minors, than if we try to deal with it in terms of obscenity?

Mr. KEENEY. If we deal with it in terms of child abuse, it is obviously a much simpler problem in one respect; but the problem that I tried to address in my statement-I am not certain that the courts will

allow us to say that the Congress under the health and welfare clause of the Constitution has constitutional authority to legislate in this area-I am concerned and that is what I was trying to suggest in my statement, maybe the courts wouldn't let us make that dichotomy that you suggest, and I am not certain-I don't know the answer, Mr. Jeffords. I am just suggesting that we are in a problem area; the courts may get into the first amendment and obscenity tests in determining whether or not the child abuse legislation is constitutional.

Mr. JEFFORDS. It seems to me that if the courts have allowed us to get into the area of saying one can't work a child over a certain number of hours, especially in mines or areas of hazardous activity, it is hard for me to believe, unless we couldn't back it up with expert testimony, that they would not consider children performing abnormal sex acts as involved in a type of labor activity which is against the health and welfare of the children involved.

Mr. KENNEY. I can understand and appreciate your analogy but I feel that there is a problem there, Mr. Jeffords.

Mr. JEFFORDS. Thank you.

I would like to ask one final question:

How many convictions have we had under the Mann Act in the last 5 or 10 years?

Mr. KEENEY. Just a second. We would have to provide that for you. We have several statutes that deal in the area of that type of conduct, one of which is the so-called Travel Act, 18 U.S.C. 1952, and in the Mann Act. If you wish, we would be glad to try and get together

Mr. JEFFORDS. I would appreciate that, because it seems to me enforcement is the big problem we are dealing with, and that is why I suggest the other approaches.

Mr. KEENEY. I might, if I may, finish on Mr. Jeffords' question. I think you will find that the figures on the Mann Act will be highly disproportionate in favor of a range of groups who are transporting women interstate for immoral purposes, and that there would be relatively few that deal with the provision on the transportation of women under 18 in a common carrier, which is a very narrow, restricted statute.

Mr. BRADEMAS. Mr. Gudger?

Mr. GUDGER. Mr. Chairman, just two questions, I believe.

I want to compliment Mr. Keeney on the quality of this brief. It is an excellent résumé, as I read it, of the problem that this bill presents and how they impinge upon existing Federal law.

Yesterday the Supreme Court, I believe, recognized that minors have constitutional protection rights of privacy. This sexual activity, in connection with the distribution of nonprescription contraceptivesI think that was written up in news publications; I have not read the case. It seems though this may impinge somewhat upon this problem and particularly the statement that appears on page 4 of your transcript: "Congress could rationally conclude that children below age 16 are incapable of making a free and understanding decision to participate in the acts which the bill prohibits."

I wonder if this case yesterday impacts upon that conclusion which I think was certainly a valid conclusion in light of the Ginsberg case