Final Report of the Attorney General’s Commission on PORNOGRAPHY
Suggestions for Citizen and Community Action and Corporate Responsibility
Our legal framework has developed in many respects into a system where citizens have delegated their right to redress certain harms to government officials. Government, in turn, is charged with the responsibility of providing appropriate remedies for its citizens, including the investigation and prosecution of individuals and corporations.
A preliminary analysis of governmental responsibilities is significant for several reasons. First, the Constitution of the United States and the Amendments there to, delineate and apportion the powers delegated to the federal, state, and local governments. Each of these levels of government has restrictions on the type of activity it can regulate as well as the manner of such regulation. Some activities can be regulated at all levels of government, while others are the sole responsibility of a single level.
Second, government has been created to act on behalf of and in the best interests of its citizens. The citizens, therefore, have every right to request and expect that the laws developed by the community (whether at the federal, state or local level) will be enforced by its elected and appointed government officials.
Third, the law is not so simplistic that individual and collective rights are mutually exclusive. Often, there are competing rights. It is this competition which ultimately must be reconciled by both government and citizens alike.
While citizens should and must rely heavily on official government action to ensure that obscenity and pornography-related laws are enforced, there are also a number of alternative remedies available to them in their community. The private actions initiated by groups or individuals are often as effective as a government-initiated action. For example, citizens can organize pickets and economic boycotts against producers, distributors and retailers of pornographic materials. They can also engage in letter writing campaigns and media events designed to inform the public about the impact of pornographic materials on the community.
A citizen’s right to free speech is guaranteed under the First Amendment to the United States Constitution.1 This right entitles individuals to organize and speak out even against those offensive materials that are not proscribed by law or cannot under the Constitution be regulated. While such action is permissible and often desirable, there are social if not legal risks of going too far in mandating social conformity in this area. To avoid these pitfalls, citizens are encouraged to be vigorous, well-informed, but responsible advocates and to exercise self-restraint so that in exercising their rights they do not prevent other citizens from exercising theirs.
Citizen interest in pornography control is a vital component of any local law enforcement program. Since one aspect of the constitutional test for obscenity is the notion of contemporary community standards, this is an area of the law which presents a significant opportunity for public input.
Citizens concerned about pornography in their community should initially determine the nature and availability of pornographic materials in their community, existing prosecution policies, law enforcement practices and judicial attitudes in the community. They should inquire whether these enforcement mechanisms are adequately utilized. They should determine whether the official perception of the current community standards is truly reflection of public opinion. If enforcement mechanisms appear inadequate or ineffective, if legislative change is necessary to enhance the effectiveness of the criminal justice system, or if the volume of pornography or offensive material is a particular problem in the community, citizens should consider developing a community action program.
A successful community action program should contain the following components:
- Sincere citizen interest in controlling the proliferation of pornographic material in their community;
- A police department that is willing to allocate a reasonable portion of its resources to obscenity enforcement;
- A prosecutor who, in keeping with his or her oath of office, will aggressively pursue violations of obscenity statutes with due regard for the right to distribute constitutionally protected material;
- A judiciary that is responsive to obscenity violations and will sentence offenders appropriately.
Additional methods by which community action organizations can express their concern about pornography is their community include:
- Citizen involvement in educating legislators, law enforcement officials and the public at large as to the impact of pornography on their particular community;
- Citizen action in the area of lawful economic boycotts and picketing of establishments which produce, distribute or sell sexually explicit materials in the community;
- If the techniques of anti-display and nuisance laws as well as zoning ordinances are determined to be appropriately tailored to the pornography problem in their community, citizens are encouraged to advocate such measures to their local legislators; and
- A business community that exercises sound judgment as to the effect (on the community they serve) of material offered in their establishment.
In the area of pornography regulation it is important that the above items be seriously addressed and effectively coordinated. The best written laws will be ineffective if prosecutors do not enforce them or if judges fail to recognize the extent of citizen concern when sentencing offenders. The goals of the community effort against pornography should be to establish constitutionally sound obscenity laws that meet their particular needs, to encourage adequate enforcement of these laws and to we private action to curb the flow of pornography and obscenity in their community.
At the same time, citizens should be aware of the risks of an overzealous approach. First, citizens should recognize that there is a diversity of views as to what, if any, regulations should be imposed on pornographic material. The United States Supreme Court has established definitional guidelines for obscenity, which are discussed elsewhere in the Report, but not without considerable division of opinion. Undoubtedly, diversity of views regarding regulations, enforcement priorities and appropriate community action will exist to varying degrees in each community. These views should be recognized and addressed by citizen advocates.
In maintaining a balanced approach, citizens should be aware of the legal criteria for distinguishing material which is obscene from that which is merely distasteful to some. However, citizen groups may wish to focus on materials which are not legally obscene and which are constitutionally protected from government regulation. Citizens may pursue a variety of private actions with respect to their non obscene but offensive pornographic material.It is also important for citizen activists to recognize the rights of other individuals and organizations when exercising their own. Advocates of strict enforcement of pornography laws should recognize the rights of individuals with opposing views. Moreover, while citizens have every right to picket, the pickets should not preclude others from entering or leaving business premises.
Finally, community action groups should guard against taking extreme or legally unsound positions or actions, such as unfounded attacks on the content of school reading lists, library shelves and general discussions of sex-related topics. With respect to their communications with a public official, members of citizen action groups should also be aware that such official keep duty bound to determine the legality of material without regard to that official’s personal opinion.
The decision to form or support a citizen action group is one that must be made by each community and participating individuals. If a decision is reached to establish such a group, its members should become involved in advocating, establishing and maintaining community standards related to pornography. The following discussion highlights ways in which citizens can maximize their efforts in this regard while recognizing competing constitutionally protected interests. The suggestions which have been developed were prompted by hundreds of telephone calls and tens of thousands of letters from concerned citizens seeking advice on how to address the pornography issue.
METHODS BY WHICH CITIZENS CAN EXPRESS CONCERN ABOUT PORNOGRAPHY AND OTHER OFFENSIVE MATERIALS IN THEIR AREA (COMMUNITY)
SUGGESTION 1: Citizens concerned about pornography in their community can establish and maintain effective community action organizations.
Informed and vocal citizen action and community involvement are the cornerstones of an aggressive program for enforcement of obscenity laws. Presently some form of obscenity law exists at the federal level and in all but a few states. While there are some areas of the law in which this Commission has recommended change,2 the lack of prosecution of obscenity cases appears to be directly attributable to a failure of enforcement. Public expression of concern about pornography and a call for redoubled law enforcement efforts will undoubtedly trigger an increase in official action.
In organizing a plan of community action, a reasonable objective should be identified. This objective may take the form of increased prosecution, tougher sentencing or private action against merchants. Citizens should also acquaint themselves with the fundamental elements of obscenity law and the principal judicial decisions in this area. It is equally vital that concerned citizens work together to establish a community standard which reflects the collective view of the community.
Citizens can become effective advocates by acting as role models both within their families and their community. To this end, they can choose (1) not to consume pornography; (2) not to patronize individual businesses or corporations which produce, distribute or sell pornography, while patronizing those that do not; (3) to voice their concerns to other citizens and government officials about the pornography problem in their community; and (4) to organize with other concerned individuals toward a common goal.
In establishing and maintaining a community standard, citizens can engage in a variety of activities. Perhaps the best way to establish and maintain a community standard is through educational campaigns. These can take the form of letter writing campaigns, telephone banks, picketing and lawful boycotts. The end product of the information gathering and disseminating process should be the emergence of a solid collective community standard. It is important that in taking these actions citizens be respectful of the constitutional rights of persons or businesses engaged in the marketing of materials thought to be offensive by citizen group members.
SUGGESTION 2: Community action organizations can solicit support from a broad spectrum of civic leaders and organizations.
A community action organization should solicit membership and support from religious, charitable, educational, political, parent-teacher, civic, and other community organizations. Citizens should also seek the endorsement of public officials for their activities. Moreover, the group should select responsible citizens as organizational leaders. In this way, the community action organization will reflect a cross section of civic leaders and organizations and maintain diverse and broad based support.
SUGGESTION 3: Community action organizations can gather information about pornography in their community.
The mainstay of any effective advocacy process is complete information. Citizen action groups must be informed as to which local, state and federal officials are responsible for the enforcement of obscenity laws. These groups must also determine the nature and extent of the pornography problem in their community and have a working knowledge of the laws governing this material.
There are basically three law enforcement tiers in each of the federal, state and local government systems. The first is the investigative tier. At the state and local level, the police or other law enforcement agency investigates alleged violations of the law. At the federal level, the investigative agencies which have jurisdiction over obscenity violations include: the Federal Bureau of Investigation (interstate transportation of obscene material), the Postal Inspection Service (illegal use of the mail to send obscene material), and the United States Customs Service (importation of obscene material).
The second tier involves the prosecutorial function. In some jurisdictions the local prosecutor may bring criminal actions as well as civil suits3 on behalf of the citizens they represent, against those individuals and corporations who have allegedly violated the law.4
There are prosecutors at the local and state levels who are responsible for enforcing local and state ordinances and statutes respectively. There are also prosecutors at the federal level which are part of the United States Department of Justice and are located throughout the nation in regional United States Attorneys Offices. There are ninety-four such offices in the United States.
The third tier is the judiciary. The judicial branch is responsible for offering a forum for the resolution of civil disputes and criminal allegations. The judge is also responsible for sentencing those convicted of criminal offenses. There are judges at each level of government who are responsible for interpreting and upholding the laws in their jurisdiction.
It is important to note that the same illegal act may in some instances give rise to both civil and criminal actions. Moreover, some offenses may be actionable under local, state and federal law. It is equally important to remember that many of the officials responsible for law enforcement are elected or appointed for a term of years. These individuals are sensitive to citizen input, but in the final analysis are obligated to base their prosecutorial decision on their interpretation of the law.
With this law enforcement structure in mind, there are four basic steps citizens should follow in gathering information on pornography in their community.
The first step in this information gathering process is to review local, state and federal obscenity and pornography-related laws. Second, citizens should also familiarize themselves with the pertinent legal decisions governing the control of obscene material. It is important to understand what is not obscene as well as what is obscene. In order to develop this understanding citizens are encouraged to review state and federal case law which discusses materials which have been found obscene as well as cases where sexually explicit materials have been found to be constitutionally protected. Citizens are also encouraged to consult with attorneys or other knowledgeable persons, on the laws in this area.
Third, concerned citizens should survey pornography producers, distributors, retailers and the actual materials available in the market place. The following is a breakdown of the types of media and establishments that often offer pornographic material in most communities in the United States. The series of questions listed below each heading should facilitate a thorough survey of these establishments and media.
A. Establishments and media survey questions
1. “Adults Only”5 Pornographic Theatres
How many pornographic theaters are here in the community? Where are they located? What movies are shown? Are sexually explicit advertisements in full public view? Are any of the theaters of the drive-in type? What precautions, if any, are taken to prevent minors from gaining access to these establishments?
2. “Adults Only” Pornographic Outlets
How many pornographic outlets are there in the community and where are they located? What materials are sold? Magazines? Paperbacks? Sexual devices? Videos? Films? Are there peep show booths where movies are shown? Are there live peep shows? Is sexual activity taking place in these establishments? Are these pornographic outlets serving as a solicitation point for prostitution? Are these pornographic outlets adequately inspected for public health violations?
3. Retail Magazine Outlets
How many retail magazine outlets in the community offer pornographic material? Where are they located? What magazines and paperbacks do they stock? Are they displayed on the counter? Behind the counter? In racks with general magazines? In blinder racks? What precautions, if any, are taken to keep minors from being exposed to these materials?
4. Video Tape Cassette Retailers
How many of the video tape cassette stores, and convenience stores selling and renting videos in the community, stock sexually explicit or sexually violent videos? Where are the sexually explicit or sexually violent videos displayed? What precautions, if any are taken to keep minors from purchasing, renting and being exposed to these videos?
5. Cable, Satellite and Over-the-Air Subscription Television
Is there a cable franchise or over-the-air subscription service in your community? Are sexually explicit or obscene programs being distributed? When?
Does a telephone company in your community have a Dial-A-Porn service available through its MANS Announcement Network Service (976 prefix)? What is the nature of this service? Are there prerecorded sexually explicit conversations? Are there live telephone conversations? Are children in the community calling this service? How are the Dial-A-Porn services advertised and are these advertisements directed to the attention of minors? What precautions, if any, are being taken to shield minors from exposures to Dial-A-Porn?
How many hotels in the community advertise and provide sexually explicit or sexually violent movies for their guests? Where are these hotels located? What precautions, if any, are taken to preclude minors from viewing these movies? Are these hotels used for prostitution or other related crimes?
8. Computer Pornography
Are pornographic computer services available in your community? What is the nature of the service? Are conversations preprogrammed? Are conversations live? Are children in the community using this service? What precautions, if any, are being taken to keep minors from gaining access to this system?
Concerned citizens should also acquaint themselves with the names of the elected and appointed officials responsible for undertaking enforcement action against obscenity. At the local level, these officials include the mayor, city council members, county prosecutor, zoning officials and the chief of police. In the case of a military community, citizens should contact the Base Commander to inform him of the pornography problem present in the community and the distribution of material on the military base.The community action leaders may also contact the state attorney general, state legislators, public health officials and the governor, if local efforts prove unsuccessful.
In addition, if inadequate federal enforcement in a matter of concern, citizen action groups should consider contacting such federal officials and agencies as Members of Congress,
United States Senators, the Department of Justice through its United States Attorneys, the Federal Bureau of Investigation, the United States Postal Inspection Service and the United States Customs Service.
SUGGESTION 4: Community action organizations can educate the public about the effect pornography has on their community.Citizen interest in the pornography issue is a vital component of any community action program. In order to instill such interest, community action groups should disseminate information concerning the nature and extent of pornography in the community. This should include an assessment of the current enforcement effort and the rationale for that policy. Citizen groups can provide this invaluable educational service by not only sharing their concerns about pornography, but by sharing their knowledge. This information will encourage other citizens to focus on the pornography issue and make an evaluation of its effect on their community based on a factual analysis.
SUGGESTION 5: Community action organizations can communicate with law enforcement officials and prosecutors about the pornography in their jurisdiction.
Citizens and community action organizations should determine whether laws relating to obscenity are being adequately enforced in their area. Officials should be alerted to violations of laws relating to obscenity and unlawful sexual activity within their jurisdiction.
The section below entitled Police contains a detailed series of questions concerning (1) investigations conducted, complaints filed and arrests made, (2) indictments, prosecutions and convictions, (3) citizen complaints, (4) problems faced by law enforcement officials and (S) law enforcement priorities, which can be used when discussing the pornography issue with any law enforcement agency official.
Questions for law enforcement agencies
1. Police – If it appears that inadequate police resources are being devoted to enforcement of obscenity and pornography-related laws, citizens should meet with police officials and voice their concern. The following questions may serve as a foundation for an analysis of the police role in enforcing laws in this area.
a. In the past year, how many obscenity and pornography-related complaints were filed with the police department? How many actual investigations were conducted? How many obscenity and pornography-related arrests did the department make? Did those arrests involve child pornography? Did the arrests involve adult obscenity violations? Other? Did those arrests evolve as a result of investigation or through some other circumstance?
b. How many obscenity and pornography-related cases did the police department present to the local prosecutor for prosecution during the preceding year? How many cases have been presented to the local prosecutor for prosecution in the current year? How many of the cases did the prosecutor present for indictment? What type of cases were these? How many cases did the prosecutor decline to prosecute? What types of cases were these? What was the basis for the prosecutor’s decision not to prosecute these cases?
c. In what types of cases have obscenity convictions been obtained in the past year? Of the cases prosecuted, how many resulted in convictions? Of the convictions obtained, how many resulted in incarceration? How many resulted in fines? In how many cases was the charge reduced by negotiation?
d. How many citizens’ complaints concerning pornography were received in the preceding year? How many in the current year? What action was taken on these complaints?
e. What problems do the law enforcement agents encounter in making obscenity and pornography-related arrests? What problems do law enforcement agents face in presenting these cases for prosecution?
f. What is the police department’s general policy concerning obscenity and pornography related law enforcement? What does the police department perceive as the community standard?
2. Local Prosecutor – The local prosecutor may be the district, county, city, state or commonwealth’s attorney, depending upon the jurisdiction. Community action groups should arrange a meeting with their local prosecutor and express their interest in the pornography problem in their area. The line of questions listed under Police above should provide a framework for questions for the local prosecutor. Citizens should specifically inquire about the prosecutor’s assessment of the community standard in their area and the basis for the opinion.
3. United States Attorney – Violations of federal obscenity laws should be referred to the United States Attorney in the jurisdiction where the violation occurred. The Office of the United States Attorney is a division of the United States Department of Justice and is guided in their prosecutorial decision making by Departmental Guidelines. Prosecutorial priorities are established on the basis of the United States Attorney’s assessment of a particular problem in his or her district. If pornography appears to be a major concern in a geographical area, the United States Attorney should be made aware of the severity of the problem. The United States Attorney, upon confirmation of this fact, should contact the other members of the Law Enforcement Coordinating Committee (LECC’s) in his or her jurisdiction6 to devise a coordinated approach to this problem.
In addition to those questions suggested under Police, the following is a list of questions which community action leaders might wish to ask the United States Attorney:
a. How many obscenity cases were referred to the Office of the United States Attorney by the Federal Bureau of Investigation, United States Customs Service, United States Postal Inspection Service or Federal Communication Commission during the past five years?
b. How many of those cases were prosecuted?
c. In how many cases was organized crime a factor?
d. How many citizens’ complaints concerning obscenity were referred to the United States Attorney’s office during the past five years for investigation by (1) The Postal Investigation Service when the United States mails were used illegally to send obscene material, (2) The United States Customs Service when the importation of obscene material was involved, (3) The Federal Bureau of Investigation where interstate transportation of obscene material was involved, or (4) The Federal Communications Commission where violations pertaining to cable pornography, obscene or indecent broadcasting or dial-a-porn were involved?
4. Local Offices of the Federal Bureau of Investigation, the United States Postal Inspection Service and the United States Customs) Service – The local offices of the Federal Bureau of Investigation, the United States Postal Inspection Service and the United States Customs Service are the investigatory arms of the federal government for obscenity violations. Pornographic materials found in the community which may violate federal obscenity laws should be referred to these agencies for further investigation. These agencies should then refer all confirmed violations of federal law to the United States Attorney for prosecution, or may if appropriate, be referred to the local or state prosecutor. Community action organizations may wish to visit the local offices of these agencies and inquire about the level of obscenity enforcement in their area.
SUGGESTION 6: Citizens can file complaints, when appropriate, with the Federal Communications Commission about obscene broadcasts.
See the in depth discussion of the Federal Communications Commission (FCC) and its legal responsibility in the obscenity area in Part Three. If the FCC is unresponsive to citizen complaints, citizens should advise their state and federal legislative representatives of such inaction and request their intervention
SUGGESTION 7: Community action organizations can conduct a “Court Watch” program.
A “Court Watch” program has the two-fold purpose of informing citizens bout the court disposition of significant obscenity cases and expressing the citizens’ view about the handling of these types of cases. Citizen involved in a “Court Watch” program will often sit through a court hearing or trial. They will write to the prosecutor, judge, or police officer and relay their opinions of the investigation, prosecution and disposition of the case.
“Court Watch” participants will also relay their findings to other interested parties, the media and legislators. In addition, these individuals will often publicly disseminate the information they have gathered when officials come up for reappointment or reelection.
“Court Watch” programs have been conducted by Mothers Against Drunk Driving (MADD) for the past several years. Through their efforts, MADD has not only increased community awareness about drunk driving but has also been successful in influencing legislators and the law enforcement community. As a result, penalties for drunk driving have been significantly increased in many states.
In sum, a “Court Watch” program will inform the judiciary and other law enforcement officials of the community’s concern about obscenity in their area.
SUGGESTION 8: Community action organizations are encouraged to keep informed of developments in obscenity and pornography-related laws and may wish, when appropriate, to lobby for legislative changes and initiatives.
In many. if not most jurisdictions, the unfettered flow of obscenity is a direct product of the laxity of enforcement, rather than the inadequacy of law. Citizens are urged to encourage the enforcement of existing laws before they attempt to introduce new legislation. If the laws themselves prove to be inadequate, then the community should identify and adopt more effective statutes. Citizens should, therefore, carefully assess the obstacles to enforcement. As with state laws, federal statutes should be updated as the pornography industry moves into new areas of technology and consumption not presently addressed by existing laws.
SUGGESTION 9: Community action organizations can provide assistance and support to local, state and federal officials in the performance of their duties.
Community action organizations can be a valuable resource to legislators and law enforcement agencies, by providing assistance and support. Such support can be evidenced in many ways, including letter writing campaigns, petition drives, attendance at public hearings, testimony at legislative hearings and electoral support.
SUGGESTION 10: Citizens can use grassroots efforts to express opposition to pornographic materials to which they object.
Some types of pornographic materials may be harmful, offensive and incompatible with certain community values, but nonetheless fall short of the legal standard for prosecution as obscenity. In these instances grassroots efforts may be an effective countermeasure. Grassroots actions are measures initiated and coordinated privately by citizens, without governmental intervention.
Grassroots measures may include picketing and store boycotts, contacting cable casting companies to protest sexually explicit programs, contacting sponsors of television and radio programs with pornographic or offensive content and the use of the media to express public concern through letters to the editor and audience participation programs.
A number of community action organizations have confronted retailers of pornography with the magnitude of public concern about the display and sale of this material and have experienced positive results. Some stores have been persuaded to store the material in blinder racks behind the counter. Other merchants have elected to discontinue the sale of material altogether.
When discussions with retailers prove ineffective, pickets and economic boycotts are an alternative method of citizen action. Pickets and boycotts serve to publicly identify merchants which sell these types of materials. If utilized appropriately, they can be an effective means of communicating public opposition to such material and alerting retailers that every option available will be exercised to discourage their circulation.
It is well established that citizens have a constitutional right to boycott for political purposes. In Missouri v. National Organization For Women,7 the state of Missouri brought an action against the National Organization for Women (NOW) when they organized a campaign for a convention boycott of states which had not ratified the Equal Rights Amendment. The court held that such boycotts were a legitimate means of petition, protected by the First Amendment.
8This issue was later addressed by the Supreme Court in NAACP v. Claiborne Hardware Co.9 In this case, a local brunch of the NAACP launched a boycott of white merchants in Claiborne County, Mississippi, to secure compliance by both civic and business leaders with a list of demands for racial equality. In 1969, those merchants filed suit against the NAACP for injunctive relief and damages. The Supreme Court upheld the NAACP’s actions stating:
In sum, the boycott clearly involved constitutionally protected activity. The established elements of speech, assembly, association and petition, though not identical, are inseparable. (Citation omitted). Through exercise of these First Amendment rights, petitioners sought to bring about political, social, and economic change.10
While pickets and boycotts are constitutionally permissible, and in some instances socially desirable, citizens exercising these practices should be sensitive to the competing rights of others who adopt an opposing viewpoint. This approach is not only socially responsible but is effective advocacy.
Moreover, the visibility of pickets and lawful boycotts will undoubtedly attract both media and corporate attention. It is important, therefore, that the community action organizations carefully articulate their concerns. A rational and logical discussion of these issues is the best method to evoke constructive debate geared toward an acceptable resolution of the pornography problem in the community.
Most importantly, retailers are in business to make money. They realize that their success is a direct product of consumer satisfaction and community patronage. Citizen pickets and boycotts are a sign of community dissatisfaction. Therefore, retailers are unlikely to view organized pickets and lawful economic boycotts lightly.
These types of citizen initiatives can also be effective against cable and satellite television companies who show offensive or sexually explicit programs. Cable operators are not required to offer sexually explicit subscription services.11 The economic realities of consumer dissatisfaction with such programming may be felt when customers cancel subscriptions or potential subscribers notify the cable company that they are not subscribing to the basic service because sexually explicit programming is offered on the system. Citizen groups should also actively participate in the cable franchising process by informing local officials and cable company representatives what type of cable programming the community is willing to patronize.
Advertisers may also be influential in furthering grassroots initiatives. Advertisers are in the business of promoting positive public relations. If an advertiser believes that sponsoring a program, advertising in a particular magazine, or wing provocative advertisements will have a negative impact on sales, it may reconsider this advertising program.
Community action organizations can also utilize numerous outlets for public comment offered by the media. Newspapers and magazines usually have “letters to the editor” columns which invite comment on current or topical issues. Radio and television talk shows may offer audience participation. These outlets offer a means of reaching large segments of the community.
Another important grassroots measure is organized involvement in the legislative process. Citizen action is essential to the enactment of local pornography-related legislation. Citizens should determine if their community has nuisance, zoning and anti-display laws and U said laws would serve the particular needs of the community.12 Nuisance laws prohibit certain illegal activities from taking place in pornographic establishments and often result in closing down the operation if a violation is found. Zoning laws regulate the way land can be used in the community.
Finally, anti-display laws regulate the method by which pornographic materials can be publicly displayed. Statutes or ordinances may be enacted or restrict the display of sexually explicit materials to minors. In order to conform to constitutional requirements, such laws should apply only to materials that are obscene as to minors13 and should also contain reasonable time, place, and manner restrictions.14
In light of the legislative options available, communities can constitutionally exercise control over the location of pornographic establishments as well as the display of pornographic materials by retailers.
Citizens should contact their legislators, law enforcement officials, community leaders and media representatives to discuss the role such statutes might play in controlling the distribution of pornography in their community. Citizen action groups should educate these individuals and organizations as to how such laws could ease the circulation of pornography in their community. Only by making the control of pornography a community objective, and endorsing legislation toward that end, will the citizen action group realize its goals.
SUGGESTION 11: Citizens can exercise their economic power by patronizing individual businesses and corporations which demonstrate responsible judgment in the types of materials they offer for sale.
Citizens should recognize individual businesses and corporations which exercise sound judgment in the selection of their book, magazine and video tape inventory. Businesses which elect not to produce, or distribute pornography in an effort to uphold or reinforce community standards should be commended. The same logic applies with equal force to radio and television station which offer pornographic or offensive programming. Citizens can use their economic power by patronizing those businesses and corporations which support a standard of quality in the community. Such patronage and subscription will serve as further evidence to merchants that the local community has set its standard with respect to such material.
SUGGESTION 12: Parents should monitor the music their children listen to and the recording artists and producers should use discretion in the fare they offer to children.
Concern has been expressed over many of the lyrics heard in contemporary rock music. Many popular idols of the young commonly sing about rape, masturbation, incest, drug usage, bondage, violence, homosexuality and intercourse. Given the significant role that music plays in the lives of young people, and considering the fact that even pre-teenagers often listen to such material several hours a day,15 this issue was considered carefully by the Commission. Two conclusions ensued.
First, it is recommended that parents closely monitor the music heard by their children. An effort should be made by parents to evaluate the lyrics expressed on radio and television, in rock videos and on pornographic records. Considerable concern has also been expressed about the violence and sexual explicitness portrayed on the covers of such albums. Some of the album covers displayed to the Commission appeared to exhibit depictions satisfying the legal standard for obscenity.
Second, in order to facilitate this parental involvement, the Commission endorses the agreement reached in November, 1985, between the Parents Music Resource Center and the Recording Industry Association of America. By the terms of this voluntary arrangement, the recording industry agreed to label albums containing explicit sex, violence, drug or alcohol abuse with the words, “explicit lyrics” or “parental advisory,” or else the actual lyrics would be printed on the album jackets.
The Commission strongly recommends that the recording artists and producers use greater discretion in the music they offer to juveniles. As a first step, however, this voluntary agreement will help parents and teachers take a more active role in limiting their children’s exposure to this material.
SUGGESTION 13: All institutions which are taxpayer funded should prohibit the production, trafficking, distribution, or display of pornography on their premises or in association with their institution to the extent constitutionally permissible.
Federally funded or assisted institutions should be prohibited from producing, trafficking, distributing, or displaying pornography except for certain well defined legitimate purposes. These institutions include, but are not limited to, hospitals, schools, universities, prisons, government office buildings, military installations and outposts, and mental health facilities. We recognized that in many areas governmental action may, as a matter of constitutional law, be taken only with respect to materials that are legally obscene, and we do not suggest that institutions go beyond their constitutional limitations. In other cases, however, of which schools are the most obvious example, content-based restrictions of the material available in the institutions need not be limited to the legally obscene, and we recognize not only the right but the responsibility of such institutions to control content consistent with the needs of the institution.
SUGGESTION 14: Businesses can actively exercise their responsibility as “corporate citizens” by supporting their community’s effort to control pornography.
As “corporate citizens,” businesses should be responsive to community sentiment regarding the production and distribution of pornographic materials. Many different types of businesses are involved in the various stages of production and retail distribution including film processors, typesetting and printing services, delivery services, warehouses, commercial realtors, computer services, cable and satellite companies, recording companies, hotels, credit cud companies and numerous others. These businesses have a responsibility to exercise due cue to insure that they are not contributing to the moral detriment of their community. Businesses can be encouraged to insure that they are not being unknowingly wed as an instrument for the spread of obscene or pornographic material which the community has requested not be produced or sold on moral, social or other legitimate grounds.
Corporations are encouraged to conduct site inspections of their inventory to safeguard against the sale of material which offend the community standard. In the case of credit card companies, a review of the types of businesses that their “merchant” members are conducting might be useful. Information and entertainment companies such as cable and satellite systems, computer network services and recording companies should monitor their systems for obscene or other material which offends the community they serve. Broadcasters, advertisers and retailers should diligently protect children and unwilling adults from exposure to sexually explicit communications.
A second role for corporations, as members of local communities, is to actively support citizen action efforts to curb the proliferation of pornography in the community.
Moreover, corporations, as part of their more general social responsibility, are encouraged to establish and participate in pornography “victim” assistance programs.16 They can do this by contributing to social service agencies who specialize in or deal with sexual abuse.1718 They can also provide direct financial assistance, in the form of scholarships and vocational programs, to “victims” of pornography.
Finally, corporations can sponsor local educational programs on pornography and its effects on the community. These programs could then be provided to schools, businesses, legislators, law enforcement officials, churches, and other interested groups.
Corporations can and do have an impact on community standards and law enforcement practices. It is up to corporations to act as responsible citizens to ensure that their community is not just a location for another retail outlet, but a worthwhile place to live.
Citizen and community involvement in law enforcement and the formulation of legal initiatives is an age-old tradition. Citizens create laws through their elected officials and delegate enforcement of these laws to police, prosecutors and judges.
When the law enforcement mechanism inadequately addresses a particular problem, citizens and communities must explore other avenues. Many times citizens must on their own publicly advocate a community environment which reflects their view of an ideal place to live.
This Commission encourages citizen and community involvement. Examples abound of where citizens have made a difference in the quality of life in their community. “Neighborhood Watch” programs, where citizens protect each others’ homes is a prime example of positive citizen efforts. Mothers Against Drunk Driving is another example in which citizen action has made communities across the country a safer place to live. This Commission applauds such efforts and encourages others to improve the quality of life in their community.
- “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. Amend. I.
- See Recommendations for Law Enforcement Agencies in Part Three.
- Civil laws include nuisance laws and may include zoning.
- In some jurisdictions a civil action brought on behalf of the community is done through the city attorney’s office, in other jurisdictions the civil action is purely private in nature.
- The term “Adults Only” is meant only to describe the nature of the material presented and not necessarily the age of the patrons.
- See the discussion in Recommendations for Law Enforcement Agencies about LECCs.
- 620 F.2d 1301 (8th Cir. 1980).
- Id. at 1319.
- 458 U.S. 886 (1982).
- Id. at 911.
- See Chapter 2 of Part three for a discussion of the regulation of cable and satellite systems.
- See Chapter 7 in Part Three and Chapter 6 in this Part for a detailed legal discussion of the use of effectiveness of these laws.
- See Ginsberg v. New York, 390 U.S. 629, 64547 (1968).
- See Young u American Mini-Theatres, 427 U.S. 50, 63 (1976).
- Washington, D.C., Hearing Vol. 1, Kandy Stroud, p. 24344.
- See Chapters I and 2 of this Part for a discussion of victimization.
- See Chapters I and 2 of this Part which discusses the numerous forms of victimization associated with pornography.