Mr. BIAGGI. Are you saying lawyers are not people?

Dr. DENSEN-GERBER. I remember some experiences at Columbia that strongly suggested to me that that might be true. That is what got me riled at the House hearing last week. The words are more important than the facts behind the words. That is an extremely bad position to be in. We have to be emotional when it comes to our children.

We definitely should have many more programs for children and to protect our children. They are in extreme danger.

If we do not do something, we will see much more than the destruction of our cities.

Mr. BIAGGI. I want to thank you very much for your testimony and your constant crusade.

Now there is a point in contention in the constitutional question. Our next witness is Mr. Charles Rembar.

STATEMENT OF CHARLES REMBAR, ESQ., ATTORNEY AND AUTHOR, NEW YORK CITY, N.Y.

Mr. REMBAR. I am happy you introduced me as a person and as a lawyer. I must apologize for not having the opportunity for preparing a statement, but in a way, it may be an advantage since I can address what comments I have to some of the questions that have come up in prior testimony.

What I have heard sounds a bit like the members of a law firm all discussing a case just before they go to trial. Everything sounds all their way, and they have spent a lot of time convincing each other that they are right.

I think you will have other people opposing this legislation. The ACLU position is against the legislation.

I support it, but I think that we have to consider the problems, the constitutional problems, that it creates.

The first amendment is an abstraction. It is something that it is very hard to feel inside yourself. What we generally feel is that we want to be free to say what we want, freedom for ourselves, not so much freedom for other people. That is the way we feel about it.

The way we must think about it is that it is freedom for expression and for a great deal of expression that we do not like, that we may even hate.

Congressman, you made a statement while I was here that is very interesting and by and large true: that is, the Supreme Court is not impervious to discussions of popular feeling. As it was said some years ago, the Supreme Court looks at the result of the last election. It is true, but it is overstated. It is overstated for the reason that the Justices of the Supreme Court know that the first amendment is there to protect minority positions.

If all that needed protection was speech in the press that the majority agrees with, we would not need a first amendment.

We have to consider, in supporting this legislation, the other side of it. Now here there is a bill, and a very well-drafted bill, an extremely carefully drawn piece of legislation. It is a bill, however, that does affect films and magazines and the Supreme Court has held that films and magazines are part of the press for purposes of the first amendment.

How is it that by support of the first amendment, you can also support this legislation?

Father Ritter mentioned his credentials as I was walking in. I have credentials, in sort of a negative sense. I happen to be a lawyer defending publishers in first amendment cases that effectively put an end to literary censorship, and I have sort of upside-down credentials in a minor way that, say, President Eisenhower had when he went to make peace in Korea. He had credentials as an anti-Communist which Adlai Stevenson perhaps did not have. So Eisenhower, as President, was able to make a peace that Stevenson might have had a great deal of trouble making.

In a minor way, as I say, since I have been engaged on the side of the first amendment, I think that I can state with perhaps a bit more force in support of legislation that seems to encounter the prohibitions of the first amendment.

Why is it valid? Why is this legislation valid?

In considering it, I believe that we have to consider two fundamental aspects of the first amendment. One is it deals with discretion, not with action; behavior is not the business of the first amendment. The control of conduct, actually, is what law is all about. It is only speech and the press that the first amendment concerns itself with,

not actions.

This legislation deals with a certain kind of behavior; the evil in that behavior has been stressed sufficiently this morning. I do not need to repeat it.

To the extent that the bill takes in expression, to the extent that it penalizes interstate commerce in films and magazines, it does it as incidental to the evil behavior itself.

Even our most liberal Supreme Court Justices have emphasized this distinction. Justices Black and Douglas, throughout their extremely liberal first amendment opinions, have carved out a special place for what they call action related to expression. That is what we have here.

The other proposition is that the first amendment, despite what those two honored Justices said, is not absolute. It does have exceptions. Father Ritter mentioned crying fire falsely in a crowded theatre. That is a hypothetical example, but there are plenty of real ones, very common ones: fraud in the sale of securities, the kind of thing the SEC deals with, that is speech or writing, definitely expression, but no one says that the first amendment prohibits Congress from dealing with it.

Keeping those two things in mind, the fact that the legislation is aimed primarily at a species of conduct and only as a corollary_expression itself, and keeping in mind that the first amendment does have exceptions, it is my feeling that this legislation will pass the constitutional test.

I have heard it said, I believe this is the Civil Liberties Union position, that it is perfectly all right to prohibit the abuse of children, but once you deal with the magazines or films that portray that abuse, you are getting into the forbidden first amendment waters. I think that that is an unsound position because, as we know, the motivation for a good deal of this activity, if not most of it, is economic. There are people who want to take the pictures and sell them in magazines,

make films and exhibit them in theatres, and it is as an enforcement to get at the activity itself. That is, the people who are doing it do not advertise that they are doing it.

So you have a very good practical reason for dealing with the films and magazines, things that might otherwise come under the protection of the first amendment. You also have a very narrow, well-defined area of activity and of publication, and you have a compelling need to deal with it.

For all of these reasons, I feel that here we have one of those closely defined narrow areas where the first amendment permits this sort of regulation. There are a few comments I would like to make on the bill itself.

Some of the witnesses testifying seem to be asking this committee to do a great deal more than the bill does. I do not think that you should try to go beyond the scope of this bill.

For one thing, as you know-but perhaps a good many people do not. Congress has limited powers. Congress cannot do everything that the State legislature might do. Congress always has two constitutional problems: Does the power exist and if it does exist, does the proposed legislation run into some sort of prohibition?

Here the power exists in the form of the interstate commerce clause, and the prohibition we have to deal with is the prohibition of the first amendment. It seems to me that this bill goes as far as the interstate commerce clause permits it to go. In doing so, it manages to accomplish a great deal.

It may not penalize the exhibition and sale in itself if everything is done within one State, but it does penalize the exhibition of films and the sale of magazines if those films and those magazines have been in interstate commerce, and that is about all we can do.

Another point which you were asked to expand in the legislation was to raise the age that defines a child. You could do that if you were dealing with only the activity itself, with the abuse of the children. But when you are dealing with the magazines and the film, when you are dealing with something that comes within the purview of the first amendment, you have to watch out for two things. One is vagueness in the legislation and the other is the requirement of guilty knowledge.

You cannot convict people when they really did not know, or you cannot prove that they know, that what they were doing is criminal. If you are trying to prosecute the exhibitor of the film or the seller of the magazine, and you have an age as high as 18, he could very easily say, I could not tell whether that person was under 18 or over 18, and I am afraid you are going to open the legislation to successful attack.

As a matter of fact, in my view, the age stated in the bill ought to be lowered. Sixteen is a difficult age and this is for purposes of making sure that you have legislation that U.S. attorneys can enforce. I think that the age should be close to the age of puberty.

One other thing about the bill itself has to do with the definition of prohibited sexual acts. I have mentioned this before. I think subsection (d), bestiality, ought to be defined further, since the dictionary itself has several definitions. I think that is a very easy thing to handle, that is, to say exactly what you mean by bestiality.

The other thing has to do with subsections (i) and (j). "Any other sexual activity," I think, would be subject to a challenge and nudity, of course, is something that cannot itself be condemned.

My suggestion is to combine subsections (i) and (j) and refer to any other sexual activity depicted for the purposes of sexual stimulation, et cetera, leaving nudity out altogether.

I want to return for a moment to what I said in the beginning about the first amendment. It does protect things that are harmful. We have to get used to that idea.

Dr. Gerber mentioned being frightened as a child by Charles Laughton in "The Hunchback of Notre Dame." She is considerably more youthful than I am. I think of the Lon Chaney portrayal that I found quite frightening. Whether it leaves any permanent harm or not is for others to say, but there are many things in the environment in our society other than things we label as sexual that can do harm.

There are many things in what is said and what is written that can do harm, not simply in the sexual way or in the development of children, but that we feel, for example, politically the first amendment affects people and their advocacy of causes that I find repugnant. I am sure that any of us can make the same statement.

So we do have to be very careful on that score and not assume that the problem is solved simply because we are dealing with something that seems to us to be really horrible.

One last word. It is not only a matter of satisfying the judges. Congress itself is sworn to uphold the U.S. Constitution. That is a problem for you, gentlemen, in your own minds as well as the practical problems of what will pass mustering in courts that you must address yourself to.

Thank you.

Mr. BIAGGI. Thank you, Mr. Rembar. You gave a very substantial contribution to this very critical issue.

Your treatment of the issue is most heartening. I share your opinion and I have expressed it in relation to broadening our approach.

I was a little apprehensive about it. There is still some sense of apprehension even in relation to the proposals in this legislation, but we feel it is more reasonable. It deals with the issue more directly and stays within the parameters necessary in order to deal with the problem and minimize the potential of judicial criticism.

Mr. Kildee?

Mr. KILDEE. Thank you, Mr. Chairman.

Thank you, Mr. Rembar. I certainly feel that you have raised a good point that we, in the Congress, have to be concerned with constitutionality and not just refer that question to the courts. We must be very positive when we are writing legislation to be sure it is constitutional. I agree with you that this is not technically a part of the first amendment, but hopefully we will balance the power that we have in the Congress in the interstate commerce clause with the limitations placed on us by the first amendment. You have been extremely helpful.

I have wrestled with some of the definitions of the prohibited sexual acts myself. I have made some notes on possible combinations of (i) and (j). We had some problems raised elsewhere on the question of "sadism" and "masochism." Perhaps we need a more precise definition of those terms. Do you find yourself having any problems with them?

Mr. REMBAR. I thought about that. It seems to me that those worlds have escaped the area of technical expertise from which they came and have now become a part of the common language, and I think people know what they mean. They mean the infliction of pain or the suffering of pain with sexual overtones.

You can say that in the legislation. In my opinion, I think the words themselves are sufficient.

Mr. KILDEE. In the most recent draft, we have put in front of those words "sexual sadism, sexual masochism."

Mr. REMBAR. It cannot hurt.

Mr. KILDEE. On the question of age, you may be interested to know that the officer of the Los Angeles Police Department indicated that he felt, as did his superior, that it would be much easier for them to bring good cases at 16. He thought that 18 would create some problems. They thought that 16 would help them to get convictions.

Mr. REMBAR. I did not mean to disagree with Father Ritter in his statement that a 17-year-old is also a child, in a sense. It varies from individual to individual.

Certainly many 17-year-olds and 18-year-olds are emotionally very young. However, the problem is a practical one, the practical one of passing legislation that has a chance of being enforced.

Mr. KILDEE. Thank you very much.

Mr. BIAGGI. I was wondering, if the committee has any questions, could we pose them to you and you could respond for the record? Mr. REMBAR. I would be very happy to do that.

Mr. BIAGGI. I appreciate your cooperation and contribution. Thank you.

The committee will recess and reconvene at 1:50, 10 minutes of 2. [Whereupon, at 1:20 p.m. the hearings in the above-entitled matter were recessed, to reconvene at 1:50 p.m. this same day.]

AFTER RECESS

Mr. BIAGGI. The committee will come to order.

Our next witnesses will be representatives of the U.S. Customs Department, Eleanor Suske and Steve Mines.

STATEMENTS OF ELEANOR SUSKE AND STEVE MINES, REPRESENTATIVES, U.S. CUSTOMS DEPARTMENT, NEW YORK, N.Y.

MS. SUSKE. I am employed by the U.S. Customs Service in the office of the Regional Commissioner of Customs, the New York region. The Customs Service, under the provisions of section 305 of the Tariff Act is responsible for making initial findings that imported printed material, motion pictures, films, et cetera, are obscene. A final judgment and disposition however, is made by the U.S. district court.

The policy of the Customs Service is based, to a great degree, on the decisions of the courts, including the U.S. Supreme Court, and over the years, the definition of the term "obscene" has changed dramatically. We have made every effort to keep abreast of these decisions, many of which dictated customs seizures.

Depictions of complete nudity, for example, were held to be obscene approximately 20 years ago. This is a far cry from the current type of material that is being imported today.