Orrin G. Hatch1

INTRODUCTION

Simply put, we know more than ever how illegal adult obscenity contributes to violence against women, addiction, harm to children, and sex trafficking. This material harms individuals, families, and communities and the problems are only getting worse. As you know, adult obscenity is not protected by the First Amendment. Congress has for decades passed laws seeking to curb the production and distribution of obscene pornography, including on the Internet. A consistent and strong commitment to enforcing these laws can have a significant impact.2

In   2001,   Esquire   magazine   described   “the   pornographication   of  the American girl”3 in its profile of a former pornographer. Four years later, author Pamela Paul testified before the U.S. Senate Judiciary Subcommittee on the Constitution about how our lives, relationships, and families have become “pornified,” a term that became the title of her recently published book.4 More recently, the Boston Globe described the “pornification of America” this way:

Not too long ago, pornography  was a furtive profession—its  products created and consumed in the shadows. . . . What is new and troubling, critics suggest, is that the porn aesthetic has become so pervasive that it now serves as a kind of  sensory   wallpaper,   something   that   many   people   don’t   even   notice anymore.5

Some say that because of shifts in culture and technology, “pornography has already won.”6

Sadly, pornography “is so commonplace that for many it is merely an annoyance.”7 It may indeed be “the new metaphor” and “the new universally shared  experience.”8  But pornography  is not simply  a matter of taste; it is a matter of harm that is magnified because today’s pornography is more extreme and   more   readily   available   than   ever.   Limiting   its   negative   impact  on individuals,  families,  and  communities  requires  a  comprehensive  approach. This article focuses on something that both federal and state government can do as part of the solution. Government can enforce existing laws that prohibit obscenity, a defined category of pornography that is not protected by the Constitution.

These  laws have not been  seriously  enforced  for a long time.  The 1986 Attorney  General’s  Commission  on  Obscenity  and  Pornography  noted  that, “with few exceptions the obscenity laws that are on the books go unenforced.”9

During the Clinton administration,  federal prosecutions  fell by more than half, with only twenty cases in the year 2000.10  The National Research  Council of the National Academy of Sciences noted in 2002 that, “obscenity prosecutions have been  relatively  rare.”11  In  April  2011,  a bipartisan  group  of forty-one Senators joined me on a letter to Attorney General Eric Holder urging stronger enforcement of federal obscenity laws.12 A few weeks later, he told the Senate Judiciary Committee that “since we have been in office, seven obscenity cases have been brought that have involved only adult pornography.”13  The excerpt from  our  letter  to  Attorney  General  Holder  quoted  at  the  beginning  of this Article captures the case for such enforcement. These laws should be enforced because this illegal material is harmful.

 I. Adult Obscenity is Illegal

The   First   Amendment   prohibits   Congress   from   making   any   law “abridging the freedom of speech.”14 This guarantee was the first clause of the Bill of Rights that the Supreme Court applied to state and local governments.15

In Roth v. United States, the Supreme Court cited cases dating back to 1877 to show that “this Court has always assumed that obscenity is not protected by the freedoms of speech and press.”16   The Court thus held in Roth that “obscenity is not expression protected by the First Amendment”17  and has reaffirmed this principle many times.18

A content-based  restriction on expression that is protected by the First Amendment  is “presumptively  invalid.”19  Rebutting that presumption  requires the government  to prove that the regulation  is “the least restrictive  means” to achieve “a compelling interest.”20 Since it lacks First Amendment protection, however, obscenity may be restricted or prohibited altogether without meeting this demanding legal standard.21 This difference makes identifying the category of obscenity especially important.

“Obscenity can . . . manifest itself in conduct, in the pictorial representation of conduct, or in the written and oral description of conduct.”22  The substance of obscenity, however, is harder to define than its form. Discussion or analysis of obscenity often lacks clarity because it is insufficiently distinguished from broader categories  such  as sexually  explicit  material,  pornography,  or indecency. These may be interchangeable in the eye of the casual beholder, but they are very different in the eyes of the law. Obscenity is a narrow category of material that has been defined by the Supreme Court and that government has maximum ability to prevent.

The common  law definition  of obscenity,  articulated  in Roth, was drawn from a famous 1868 English case Regina v. Hicklin.23 Material that tended to “deprave and corrupt those whose minds are open to such immoral influences” was deemed obscene and could be banned.24  This definition  turned out to be very broad because it “allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons.”25   In Roth, the Supreme Court began developing a narrower definition of obscenity by endorsing the following  test:   “whether   to   the   average   person,   applying   contemporary community standards,  the dominant  theme  of the  material  taken  as a whole appeals to prurient interest.”26 This material, the Court said, is “utterly without redeeming social importance.”27  As the focus thus   shifted from the common law to constitutional law, the definition of obscenity shifted from its effect to its content.

In Jacobellis v. Ohio,28 the Court used the Roth definition to reverse an obscenity conviction but the 6-3 judgment did not produce a majority opinion.

Two concurring Justices argued that despite Roth’s reference to community standards, “the constitutional status of an allegedly obscene work must be determined  on  the  basis  of  a  national  standard.”29   Two  dissenting  Justices argued the opposite, “that when the Court said in Roth that obscenity is to be defined by reference to ‘community standards,’ it means community standards - not  a  national  standard  as  is  sometimes   argued.”30   And  in  a  separate concurring opinion, Justice Potter Stewart famously noted that “criminal laws in this area are constitutionally  limited  to hard-core  pornography.  I shall not today attempt  further  to  define  the  kinds  of  material  I  understand  to  be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it . . . .”31

Two years later, in Memoirs v. Massachusetts,32  the Court again voted 6-3 to reverse  an  obscenity  conviction  and  again  failed  to  produce  a  majority opinion. Three Justices argued that each element in the Roth definition must be applied independently:  the dominant theme taken as a whole must appeal to a prurient interest in sex, the material must be patently offensive measured by contemporary  community standards, and the material must be “utterly without redeeming social value.”33 The Court would later describe this as “veer[ing] sharply away from the Roth concept”34 and a “drastically altered test” because it required prosecutors to “prove a negative, i.e., that the material was ‘utterly without  redeeming  social  value’—a  burden  virtually  impossible  to discharge under our criminal standards of proof.”35

A majority  of Justices  finally  agreed  on a definition  of obscenity  in the Court’s 1973  decision  in  Miller  v.  California.36  This  refined  three-part  test asks:

(a) [W]hether  the “average  person  applying  contemporary  community standards” would find that the work, taken as a whole, appeals to the prurient interest, . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.37

This  decision  is important  for several  reasons.  First,  it reaffirmed  as “categorically    settled”    that    obscenity    is    not   protected    by    the    First Amendment.38  Second, it was the first time since Roth that a majority of the Court agreed on a definition  of obscenity.39  Third, it confines elements  from Roth such as  average  person,  community  standards,  dominant  theme,  and prurient interest to depictions of sexual conduct defined in statute.40 Fourth, it modifies the “utterly without redeeming social value” to the more practical and usable  third  prong  of “lacking  serious  literary,  artistic,  political,  or scientific value.”   Fifth, admitting   that  this  “may  not  be  an  easy  road,  free  from difficulty,”41 the Court rejected both “an absolutist, ‘anything goes’ view of the First Amendment” and “arbitrarily depriving the States of a power reserved to them under the Constitution . . . which they have enjoyed and exercised continuously  from before the adoption of the First Amendment  to this day.”42

Finally, the Court rejected that “there are, or should or can be, fixed, uniform national  standards  of  precisely  what  appeals  to  the  ‘prurient  interest’  or  is ‘patently  offensive.’”43  This  is  a question  of fact,  and  requiring  “a State  to structure obscenity proceedings around evidence of a national ‘community standard’ would be an exercise in futility.”44

Supreme Court decisions have also shaped application of this definition. In Hamling v. United States, for example, the Supreme Court held that the “community” referenced in the Miller definition does not necessarily refer to a “precise  geographic   area.”45   And  in  Pope  v.  Illinois,  the  Supreme  Court clarified that “the first and second prongs of the Miller test . . . are issues of fact for the jury to determine applying contemporary  community standards.”46  The third prong, however, asks “whether a reasonable person would find such value in the material, taken as a whole.”47

Obscenity, then, is a narrow category of sexually explicit material that is so extreme and lacking in basic value that society is better off without it. Since the First Amendment does not protect obscenity, society   certainly can do something about it. Enforcing laws prohibiting obscenity establishes at least the outer boundary of what the law will allow.

II. Adult Obscenity is Harmful

“Obscenity  apparently  is  unique  in being  the only  type  of speech  to which the Supreme  Court  has  denied  First  Amendment  protection  without regard  to whether  it can  cause  harm.”48  It is true  that,  in moving  from  the common law  definition  in  Hicklin  to  the  constitutional  law  definition  since Roth, the Supreme  Court defines  obscenity  essentially  in terms of its content rather than explicitly in terms of its effect. But a content-based exception to the First Amendment would be  unusual, and the case for enforcing laws against material with such content would be weak, if that content were entirely benign and  has  no effect  of  any  kind  on  anyone.49  Obscenity,  however,  is  hardly benign  and a fuller  understanding  of  the  harms  associated  with  obscenity should motivate enforcing laws prohibiting it.50

1.      Harm to Communities

The  first  two  prongs  of the  Miller  definition  itself  suggest  the negative nature of obscenity.  Violating  community  standards  by  both  appealing  to  a prurient, or a “shameful  or morbid,”51  interest  in sex  and  portraying  sexual conduct  in a  patently  offensive  way  harm  the  community.  In  Paris  Adult Theatre  I  v. Slaton,  decided  the  same  day  as  Miller,  the  Court  recognized multiple “legitimate state interests in stemming the tide of commercialized obscenity.”52 These include “the interest of the public in the quality of life and the  total community  environment,  the  tone  of  commerce  in  the  great  city centers, and, possibly, the public safety itself.”53

Courts have recognized  such “negative secondary  effects”54  as legitimate even when a case does not involve obscenity. In Renton v. Playtime Theatres, Inc., for example, the Court upheld a city ordinance prohibiting  adult theaters from locating   within   1000  feet  of  residential   areas,   churches,   parks,   or schools.55  The  Court  recognized  that  the  ordinance  was  content-neutral  and was justified by the intention to “prevent crime, protect the city’s retail trade, maintain property values, and generally ‘protec[t] and preserv[e] the quality of [the  city’s]  neighborhoods,   commercial  districts,  and  the  quality  of  urban life.’”56  And  in  Los  Angeles  v.  Alameda  Books,  Inc.,  the  Court  upheld  an ordinance prohibiting more than one adult entertainment business in the same building. A four-Justice plurality opinion held that “a substantial, independent governmental  interest” such as reducing crime or maintaining  property values can justify such regulations.57

2.       Harm to Individuals

Pornography and obscenity can also harm individuals. The common law Hicklin definition was focused explicitly on obscenity’s  corrupting or immoral influence on individuals. But even as the Supreme Court revised the definition of obscenity,  it retained  at  least  some  recognition  of individualized  impact. Under both Roth and Miller, material must appeal to an individual’s prurient interest in sex.58 The Court affirmed in Miller that material “will be judged by its impact on an average person.”59 One scholar writes that “at the forefront of the  Court’s  concern  seems to  be  the  notion  of  moral  corruption   of  the consumers of pornography and resultant moral harm to the community as a whole.”60  And since obscenity  lacks First Amendment  protection, legislatures and prosecutors certainly must take seriously the harms associated with it when  making and enforcing the law.

Some  might  argue  that, at least  with  regard  to individuals,  the Supreme Court’s  decision  in  Lawrence  v.  Texas61  negates  moral  consideration  as  a legitimate  basis  for enacting  or enforcing  obscenity  legislation.  In Lawrence, the Court declared unconstitutional a state law prohibiting “deviate sexual intercourse with another individual of the same sex.”62 The Court considered engaging in this conduct to be—if not an explicit constitutional right—at least part of the “liberty protected by the Constitution.”63  In dissent, Justice Antonin Scalia  wrote   that   many   laws   based   on   moral   considerations,   including prohibitions  on  obscenity,  are  “called  into  question  by  today’s  decision.”64

Lawrence, however, involved private conduct by adults rather than commercial material   disseminated   publicly.   In   addition,   the   Court   held   that   moral disapproval  “of  a group”  cannot  “by  itself”  be a rational  basis  sufficient  to justify a statute under the Equal Protection Clause. Laws prohibiting obscenity target expression rather than people, expression that has no constitutional protection because it independently meets the definition in Miller.65

These  important  distinctions  mean  that  public,  if  not  private,  morality remains a legitimate basis for prohibiting obscenity. The Supreme Court recognized  in  1942  that  preventing  obscene  speech  to  further  “the  social interest   in   order   and   morality”   had   “never   been   thought   to   raise  any Constitutional problem.”66 The Court’s later discussion of negative secondary effects easily incorporates  broad notions  of public  morality  within  categories such as “the total community environment”67 or the “quality” of a city’s neighborhoods.68

Public  morality,  however,  is only one reason  for enforcing  obscenity laws. The debate continues about whether sexually explicit material is merely distasteful,  or actually  harmful  to individuals.  Two  prominent  federal commissions demonstrate that definition, assumptions, research methods, and concepts of harm and evidence can significantly  influence conclusions  in this area.  Not surprisingly,   opponents   of  obscenity   laws  highlight  one,  while supporters highlight the other.

The 1970 President’s  Commission  on Obscenity  and Pornography  did its work before  the  Supreme  Court’s  Miller  decision  defining  obscenity,  and before even VHS technology had been invented. It had two years to fulfill its mandate, funded  original  social  science  and  survey  research,  received  no witness testimony,  and  met  in  private.69  It  made  no  attempt  to  analyze  or categorize available sexually explicit material,70  but examined the entire range of what it called “erotic stimuli” or “explicit sexual material.”71  It considered only scientific evidence such as “empirical studies conducted recently by psychiatrists, psychologists,  and sociologists”72  and its concept  of harm  was limited to the causation of “delinquent or criminal behavior.”73

With  these  parameters,  it  is  not  surprising  that  the  1970  Commission “found no evidence that exposure to or use of explicit sexual materials play a significant role in the causation of social or individual harms such as crime, delinquency, sexual or nonsexual deviancy or severe emotional disturbances . . . [E]xposure to sexually explicit materials has no harmful causal role in these areas.”74  This conclusion holds for “youth or adults.”75  As a result, it recommended that “federal, state, and local legislation prohibiting the sale, exhibition, or distribution of sexual materials to consenting adults should be repealed.”76   This  recommendation   applied  to  “the  entire  range  of  explicit sexual  depictions”  including  “the  most  explicit  depictions,  or what  is  often referred to as ‘hard-core pornography.’”77

In contrast, the 1986 Attorney General’s Commission  on Pornography  did its work after Miller but before DVD technology had been invented. It had one year  to fulfill a  substantially  similar  mandate,  reviewed  existing  research, received witness testimony and met in public hearings.78  Its report included an extensive  content review79  and categorized  material  using  a four-part typology.80 It rejected an “unduly narrow conception of harm,”81 considering harms that might lack “scientific measurability,”82  and “looked at a wide range of types of evidence.”83 The 1986 Commission also considered effects on non- criminal behavior such as sexual aggression and on attitudes that contribute to or influence behavior.84

The 1986 Commission  found a “causal relationship”  between exposure to sexually violent material and both attitude changes and “aggressive behavior towards  women.”85   It  found  differing  kinds  of  relationships   between  the different  categories   of  material  it  studied  and  the  different  harms  it  had identified. The 1986 Commission, however, limited its legislative recommendations only to material that met the legal definition of obscenity.

The broader approach  of the 1986 Commission  seems to have influenced much of  the  subsequent  work  in  this  area.  The  1986  Surgeon  General’s Workshop on Pornography and Public Health, for example, produced several consensus statements by the participants.  These include that “there appears to be a convincingly  clear picture of attitudes towards the acceptability  of sexual coercion being substantially altered by exposure to particular types of violent pornography.”86 The “increasing opportunities for children to see and hear pornographic  images”87  led two researchers  to study this area in 1999.   They found that “sexually reactive behaviors . . . were most apt to be displayed not by children who had been sexually abused but by those who had been exposed to pornography.”88  The increasing  opportunities  to which  they referred  were from cable television; the stakes have been raised exponentially since then with the ubiquitous presence of the Internet.

In 2003, I chaired a hearing of the U.S. Senate Committee on the Judiciary regarding   efforts  by  the  Department   of  Justice  to  protect  the  victims of pornography.89  In my opening statement, I noted that harm from pornography is “getting  worse  with  the  advent  of  the  Internet”  and  will continue  its trajectory  “unless  we have aggressive  law enforcement.”90  On November  22, 2003,  at  my  request,   the  Senate   adopted   by  unanimous  consent   Senate Concurrent   Resolution   77  “expressing   the  sense   of Congress   supporting vigorous   enforcement   of   the   Federal   obscenity  laws.”91    The   resolution identified  several “legitimate  governmental  interests at stake in stemming  the tide of obscene materials.”92 These include protecting the quality of community life, public safety,  a decent society,  the social interest in order and morality, and family life.93

In  2004,  the  U.S.  Senate  Committee  on  Commerce,  Science  & Transportation   held   a   hearing   titled   “The   Science   Behind   Pornography Addiction.” Dr. Mary Anne Layden, Director of the Sexual Trauma and Psychopathology Program at the University of Pennsylvania, testified:

Pornography,  by its very nature, is an equal opportunity toxin. It damages the viewer, the performer, and the spouses and the children of the viewers and the performers.  It is toxic mis-education  about sex and relationships.  It is more toxic the more you consume, the “harder” the variety you consume and the younger and more vulnerable the consumer. The damage is both in the area of beliefs and behaviors.94

In  2005,  the  Subcommittee   on  the  Constitution,   Civil  Rights  and Property Rights of the U.S. Senate Committee on the Judiciary held a hearing titled “Why the Government  Should  Care About Pornography.”95  Researcher and  family therapist  Dr.  Jill  Manning  focused  on  the  “systemic  effects  of Internet  pornography”   drawn   from   “peer-reviewed   findings   in   published journal articles.”96  These  effects  include  increased  risk  of marital  separation and divorce, increasing compulsive and addictive sexual behavior, decreasing parental time and attention toward children, and earlier onset of sexual behavior in children.97

Dr. Patrick Fagan has reviewed  the effects of pornography  on the family and the individual, concluding that it “distorts an individual’s concept of sexual relations by objectifying them, which, in turn, alters both sexual attitudes and behavior.  It  is a major  threat  to  marriage,  to  family,  to  children,  and  to individual  happiness.”98    Elizabeth   Dionne   writes   that   there   are   literally “hundreds of  peer-reviewed,   social  science  studies  published  in  reputable academic journals that outline the negative impacts of pornography on attitudes and behavior.”99

“Fueled  by  a  combination   of  access,  anonymity,  and  affordability, online porn has catapulted overall pornography consumption – bringing in new viewers, encouraging  more  use from  existing  fans  and  escalating  consumers from soft-core to harder-core material.”100 The Witherspoon Institute and the Institute for Psychological  Sciences began in 2008 to examine the social costs of pornography,  with particular focus on the Internet. Its published report was signed by  more  than  fifty  scholars  in  fields  as  varied  as  pediatrics,  law, philosophy, human development, ethics, sociology, neuroscience, women’s studies, psychiatry, history, physiology, and psychology. Its findings are that:

“Unlike  at  any  other  time  in  history,  pornography   is  now  available  and consumed widely in our society, due in large part to the internet.”101

“There is abundant empirical evidence that this pornography is qualitatively different from any that has gone before, in several ways: its ubiquity, the use of increasingly realistic streaming images, and the increasingly ‘hard-core’ character of what is consumed.”102

“Today’s  consumption  of  internet  pornography  can  harm  women  in particular.”103

“Today’s consumption of internet pornography can harm children in particular.”104

“Today’s  consumption  of internet  pornography  can  harm  people  not immediately connected to consumers of pornography.”105

“The consumption of internet pornography can harm its consumers.”106

“Pornography consumption is philosophically  and morally problematic.”107

“The  fact  that  not everyone  is harmed  by pornography  does  not entail  that pornography should not be regulated.”108

Such findings and conclusions might not be enough to prohibit legal pornography, but they are more than enough to prohibit illegal obscenity and to enforce   that prohibition.   In  Ginsberg   v.  New   York,   the  Supreme   Court observed:  “[O]bscenity  is  not  protected  expression  and  may  be  suppressed without a showing of the circumstances  which lie behind the phrase ‘clear and present danger’ in its application to protected speech. . . . We do not demand of legislatures ‘scientifically certain criteria of legislation.’”109  Similarly, in Paris the Supreme  Court  rejected  the argument  that  there  must be “scientific  data which  conclusively  demonstrate  that  exposure  to obscene  material  adversely affects  men  and  women  or their  society.”110  Rather,  obscenity  laws  can  be based  on  an “unprovable  assumption”  that  “commerce  in obscene  books,  or public exhibitions focused on obscene conduct, have a tendency to exert a corrupting and debasing impact leading to antisocial behavior.”111   Effects, the Court said, “may be intangible and indistinct, but they are nonetheless real.”112

3.      Obscenity and Other Social Problems

A third category of harm comes from the relationship between sexually explicit  material  and  other  problems   such  as  domestic   violence  and  sex trafficking. A University of Arkansas researcher found that pornography “decreases empathy for victims of sexual violence”113  and “increases sexually imposing behaviors.”114  A 2010  analysis  found  “a  significant  overall relationship between  pornography  consumption  and attitudes  supporting violence against women in nonexperimental studies.”115

Laura  Lederer,  former  Senior  Advisor  on  Trafficking  in  Persons  at  the State Department, spoke on this topic at a briefing for members of Congress in their staff on June 15, 2010. She summarized the “numerous links between sex trafficking and pornography” this way: some types of pornography actually are sex  trafficking  because  they  involve  force,  fraud,  or coercion;  some perpetrators  are  trafficking  or  exploiting  women  and  record  the  acts  they perform; pornography “is used in sex trafficking and the sex industry to train women and children what to do”; pornography provides rationalizations for exploiters.116

III. ADULT OBSCENITY  SHOULD BE PROSECUTED  THE RIGHT WAY

“Federal  law contains  no outright  ban  on all obscenity;  it leaves  this  to state law.”117 Federal statutes, however, do prohibit obscenity in contexts that are under federal jurisdiction. These include selling obscenity “on any land or building . . . used  or under  the  control”  of the  United  States,118  knowingly sending obscenity through the mail,119 importing or transporting obscenity,120 uttering obscenity on the radio121 or on cable or subscription television,122 producing or distributing  obscenity through interstate commerce,123  and using the mail or interstate commerce knowingly to send obscenity to a minor.124 The Supreme  Court   has   held   that   federal   obscenity   statutes   incorporate   the definition of obscenity drawn from its precedents.125

There  exists  ample,  and  growing,  evidence  of  the  harms  of  sexually explicit material to communities,  individuals,  and society and these harms are likely magnified  where more extreme  material  such as obscenity  is involved. The lack of First Amendment  protection  for obscenity  means, therefore,  that the most harmful material can be subject to the greatest restrictions.

To that end, and because there had been so few obscenity prosecutions for so long, the Justice Department in 2005 created the Obscenity Prosecution Task Force “dedicated exclusively to the investigation  and prosecution of obscenity cases.”126  Prosecutions,  however,  continued  to target  only  the most  extreme forms  of obscenity,  material  that  is neither  widely  produced  nor  consumed. This is material that would be obscene anywhere in America because it easily appears  outside  any  community’s   standard.  Prosecutions   of  this  material, however, may virtually guarantee convictions but have little impact on the obscenity industry.127 The obscenity industry considers the line of legality to be drawn by prosecutors, not by legislators. They do not care whether material is illegal, but only whether it will be prosecuted. As such, effective enforcement requires not only prosecuting more cases, but prosecuting the right cases in the right  way.  I  have  repeatedly  raised  this  issue  of  enforcement  strategy  in hearings,128 urging the Justice Department to target what might be called more “mainstream”  obscenity in order to have a greater impact on what is produced and, therefore, on what is consumed.

Another important reason consistently to enforce obscenity laws is that such enforcement itself helps clarify the community standards that define obscenity. During the 2003 Senate Judiciary Committee hearing that I chaired, U.S.  Attorney Mary  Beth  Buchanan  explained  that  members  of  a jury  “are going to be very uncertain as to what the community’s standards are today.”129

The  lack  of prosecutions,  she said,  means  that  “so  much  material  has  been available  to the public  and I think that it has desensitized  the public.  People don’t   necessarily   understand   the  fact   that  certain   things   have   not  been prosecuted  doesn’t  mean  that they’re  not illegal.”130  Bruce  Taylor,  a former state and federal obscenity prosecutor and then President of the National Law Center  for  Children  and  Families,  agreed  that  juries  “have  forgotten  that obscenity is a crime because there have not been cases.”131 Steve Takeshita, the officer   in   charge   of  the   Pornography   Unit   of  the   Los   Angeles   Police Department   who  had  investigated   obscenity   for  nearly  two  decades,  also testified that a “hiatus in federal prosecution of obscenity has brought forth the courage   in  the  adult   industry   to  produce   this  extreme   sexually   explicit product.”132

Finally, the rapid development of technology and its ability to make pornography and  obscenity  more  ubiquitous  should  make  enforcement  more urgent. In 1985, the Child and Family Protection Institute (CFPI) published an extensive  review   of  the  existing   evidence   for  pornography’s   effects   on individuals, families,  and communities.133  It recommended  that “[n]ew legislation is needed in some areas where new technology has made new forms of pornography available.”134 The next year, the 1986 Commission noted the “enormous technological changes that have affected the transmission of sounds, words, and images”135  but concluded  that “the laws are there for those areas that  choose the  course  of  vigorous   enforcement.”136   If  the  technological distance between films and VHS is enormous, the distance from there to the Internet is difficult adequately to describe. Congress has tried several times, but with limited success in the courts, legislatively to regulate sexually explicit material, including obscenity,  on the Internet.137  When the 1970 Commission did its work, individuals had to go to pornography to consume it. Today, pornography  comes to individuals,  often  without  their  consent,  and  can  be accessed entirely in private, or even on the go.138 

IV. CONCLUSION

In Paris, the Supreme Court concluded: 

The sum of experience, including that of the past two decades, affords ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human   personality,   can  be  debased   and  distorted   by  crass   commercial exploitation of sex. Nothing in the Constitution prohibits a State from reaching such  a conclusion  and  acting  on  it legislatively  simply  because  there  is no conclusive evidence or empirical data.139

12. This was not the first time that I had raised this issue with Justice Department officials of both political parties. See Oversight of the U.S. Justice Department, Hearing Before the S. Comm. on the Judiciary, 111th Cong. 14-15 (2010) [hereinafter Holder Hearing]; Confirmation Hearings on Federal Appointments: Hearing on the Appointment of Deputy Attorney General David Ogden Before S. Comm. on the Judiciary, 111th Cong. 17-20 (2009); Confirmation Hearing on the Nomination of Michael B. Mukasey to be Attorney General of the United States: Hearing Before S. Comm. on the Judiciary, 111th Cong. 17-20 (2009); Nomination of Janet Reno to be the Attorney General of the United States: Hearing Before S. Comm. on the Judiciary, 103d Cong. 35 (1993).