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HomeMy WebLinkAbout2005-06-28; City Council; 18187 v3 22 Pt 3; Exhibit - AG Commission report on pornographyAttorney General's •ission on rornoarapsn Final Report Julv 1986 j /: •'- , f ,'^ . A /'_' '•> 'X —«'- •' ' 1/0L -JT Table of Contents PART ONE 1. Commissioner Biographies 3 2. Acknowledgements and Notes 23 3. Individual Commissioner Statements 27 PART TWO 1. Introduction 215 The Commission and Its Mandate 215 The Work of the Commission 218 The 1970 Commission on Obscenity 224 and Pornography Defining Central Terms 227 2. The History of Pornography 233 Pornography as a Social Phenomenon 233 Regulation and the Role of Religion 236 Obscenity Law — The Modern History 249 3. The Constraints of the First Amendment 249 The Presumptive Relevance of the 249 First Amendment The First Amendment, The Supreme Court, 251 and the Regulation of Obscenity Is the Supreme Court Right? 260 The Risks of Abuse 269 ( 4. The Market and The Industry The Market for Sexual Explicitness The Motion Picture Industry Sexually Explicit Magazines Television The Pornography Industry The Production of Films, Video Tapes, and Magazines Channels of Distribution The Retail Level The Role of Organized Crime 5. The Question of Harm Matters of Method Harm and Regulation — The Scope of Our Inquiry What Counts as a Harm? The Standard of Proof The Problem of Multiple Causation TV.e Varieties ct Evidence The Need to Subdivide Our Conclusions About Harm Sexually Violent Material Nonviolent Materials Depicting Degradation, Domination, Subordination, or Humiliation Nonviolent and Non-Degrading Materials Nudity 277 277 278 280 281 284 284 287 289 291 299 299 299 302 306 309 T1 1 320 322 323 323 329 335 347 The Need for Further Research 6. Laws and Their Enforcement An Overview of the Problem Should Pornography be Regulated by Law? The Question is Deregulation Law Enforcement, Priority, and Multiple Causation The Problem of Underinclusiveness The Criminal Law The Sufficiency of Existing Criminal Laws The Problems of Law Enforcement. Federalism What Should be Prosecuted? The Special Prominence of the Printed Word . .. Regulation by Zoning The Civil Rights Approach to Pornog raphy Obscenity and the Electronic Media Enforcing Both Sides of the Law 7. Child Pornography The Special Horror of Child Pornography Child Pornography as a Cottage Industry Child Pornography, the Law, and the First Amendment Enforcement of the Child Pornography Laws 349 353 353 354 354 358 360 363 364 366 372 375 381 385 391 396 402 405 405 406 410 415 8. The Role of Private Action The Right to Condemn and the Right to Speak The Methods of Protest The Risks of Excess The Importance of Education and Discuss ion 419 419 421 423 425 PART THREE 1. Introduction 2. Law Enforcement Agencies and the Justice Department 3. Child Pornography 4. victimization 5. Civil Rights 6. Nuisance Laws 7. Anti-Display Laws PART FOUR 1. Victimization 2. Performers 433 459 595 737 747 757 759 767 837 3. Social and Behavioral Science Research Analysis 901 4. Organized Crime 1037 5. The History of the Regulation of Pornography 1213 6. First Amendment Considerations 1263 7. Citizen and Community Action and Corporate Responsibility 1313 8. Production and Distribution of Sexually Explicit Materials 1351 9. The Imagery Found Among Magazines, Books and Films, in "Adults Only" Pornographic Outlets ,499 10. Sample Forms 11. VJitnesses Testifying Before the Commission 12. Witnesses Invited But Unable to Appear Before the Commission 13. Persons Submitting VJritten Statements PART FIVE 1. Bibliography 2. Additional Suggested Reading Materials 3. Staff Listing PART SIX 1. Photographs 1803 1845 1861 1865 1875 1925 1933 1937 APPENDIX A Commission Charter 1957 (V Chapter ORGANIZED CRIME I. PREFACE II. INTRODUCTION III. ORGANIZED CRIME INVOLVEMENT IN PORNOGRAPHY IV. RELATED CRIMES AND ACTIVITIES V. REUBEN STURMAN VI. CONCLUSION APPENDIX ONE - MIPORN APPENDIX TWO - MAGLOCLEN APPENDIX THREE - CALIFORNIA ATTORNEY GENERAL'S REPORT APPENDIX FOUR - 1978 VJASHINGTON, D.C., METROPOLITAN POLICE REPORT APPENDIX FIVE - 1978 FEDERAL BUREAU OF INVESTIGATION REPORT 1037 I. PREFACE The Commission has relied heavily on information and intelligence provided by experienced federal, state, and local law enforcement authorities regarding the involvement of organized crime in the pornography industry. This first hand knowledge is based upon years of investigative experience in the highly complex and covert area of organized crime. Many of these law enforcement authorities testified before the Commission on January 21-22, 1986, in New York City, at a hearing devoted primarily to matters relating to organized crime. The Commission has also used investigative reports prepared by the United States Department of Justice, the office of the Attorney General of California, the Middle Atlantic-Great Lakes Organized Crime Law Enforcement Network (MAGLOCLEN), the Pennsylvania Crime Commission, the Washington, D.C., Metropolitan Police Department and others. Reliance on the investigative reports and the experience of these law enforcement authorities was necessary because the Commission operated without the authority to subpoena witnesses or compel their testimony regarding this sensitive area of inquiry. 1039 II. INTRODUCTION Organized crime involvement in the pornography industry has been described by law enforcement officers and by organized crime operatives themselves. A retired veteran Federal Bureau of Investigation agent said of traditional organized crime members, "you cannot be in the field and distribute pornography without their consent . . . ." 1127 He added that the pornography trade is attractive to organized crime because " [i)t's a fast way of making a buck."1128 Aladena Fratianno whose involvement in La Cosa Nostra dates back to the late 1940's has reached the same conclus ion. 1129 jn an interview with a Commission investigator, Fratianno described the connection as he knew it to be in the 1970's as follows: Interviewer: Is it possible for any person to become a major distributor of pornography in the United States without becoming involved in organized crime? Fratianno: I doubt it. I doubt it. Interviewer: Okay, why do you doubt it? Fratianno: Well, because there's so much involved and I 1126 For a more complete explanation of traditional organized crime structures and influence see the textual discussion of organized crime, supra. 1127 New York Hearing, Vol. I, Homer Young, p. 40. 1128 Id. at 41. 1129 New York Hearing, Vol. I, Fratianno interview, Interview by Senior Investigator Edward H. Chapman, Attorney General's Commission on Pornography, p. 112. 1040 don't think they would let them. Interviewer: Okay, so if someone tried to operate without an involvement Fratianno: Well, somebody would report "em, they'd say look it, he's taking my business. Interviewer: . . . what would they do? Shut them down, or take them over? Fratianno: Well, they would do something. I really couldn't answer that. You know, they would do something. They might go so far as killing them, who knows.1130 Another individual who was the owner and operator of an "adult" bookstore and spent many years in the pornography business described his experience in dealing with organized Interviewer: boy." If the mob says, "I do not want this. Subject: You don't sell it. Even if they don't even talk to you. You're not going to sell it nowhere. If you go to the store on 14th street and put it in there, they're gonna bust his ass. Or they're gonna break your legs when you start going through them. There was a man who went from New York City . . . went into Atlanta. Had films to sell. . . They found him at the airport, with a $5,000 Rolex watch on and about eight grand in his pocket, and four rolls of film in his hands, with his head blown up in the trunk of his car. Nobody robbed him, nobody took a dime off him. They didn't even take the film. But he was at the airport with a New York ticket shoved in his coat pocket. Don't come down from New York, selling unless you've been sent down.1131 1130 1131 Id. at 112-15. New York Hearing, Vol. I, "Bookstore Operator" interview, p. 141-44; See also, New York Hearing, Vol. II, William Johnson, p. 82A-Ion"16 November 1970, Kenneth Herbert (Jap) Hann's bullet riddled body was found in the trunk of a car at Atlanta International Airport." 1041 III. Organized Crime Involvement in Pornography The 1970 President's Commission on Obscenity and Pornography was unable to draw conclusions regarding the role of organized crime in the distribution of obscene and pornographic materials. The 1970 Commission on Obscenity and Pornography found: Although many persons have alleged that organized crime works hand-in-glove with the distributors of adult materials, there is at present no concrete evidence to support these statements. The hypothesis that organized criminal elements either control or are "moving in" on the distribution of sexually oriented, materials will doubtless continue to be speculated upon. The panel finds that there is insufficient evidence at oresent to warrant any conclusion in this regard. 113^ There is some question about how the earlier Commission reached this conclusion.1133 It is clear that the role of traditional organized crime in the pornography trade has increased substantially since the 1970 report was issued. Until 1970, only one LCN family, the Columbo organization, was known to have been involved significantly in the pornography business.1134 The Attorney General's Commission on Pornography has received reports from law enforcement officials, prosecutors, and 1132 The Report of the Commission on Obscenity and Pornography, 141-43(1970). 1133 New York Hearing, Vol. I, Homer Young, p. 10; Former Federal Bureau of Investigation Obscenity Specialist Young reported that a staff member of the 1970 Commission interviewed him for approximately four hours about the role of organized crime in pornography in the 1968/1969 era. Young advised that he furnished the individual with documentation of organized crime involvement which for some unknown reason was not included in the earlier Commission's final report. 1134 New York Hearing, Vol. I, William Kelly, p. 69. 1042 legislators describing the substantial role which organized crime, both in traditional (LCN) and non-traditional forms, plays in the pornography business in the United States today.1135 In addition to attorneys, many other professional persons assist organized crime families and their associates in the pornography business. Realtors handle land transactions knowing the ultimate purpose of the transaction is to facilitate the sale of obscene material.113** Landlords rent property to organized crime families knowing they will be used to warehouse obscene material or to sell, produce, distribute, or display obscene merchandise.1137 Bankers process accounts and provide all manner of banking services (including the failure to report currency transactions as required by Title 31 United States Code.) Printers and film processors develop the visual images taken by pornographers and turn them into finished products for sale or reproduction. Transportation companies and interstate carriers show no discretion in shipping obscene materials to increase organized crime family profits. Academics are paid to act as experts on behalf of organized crime members and associates who are brought to trial and challenged in public debates. Public figures including prosecutors, judges, city, county and state 1135 see, Appendix One, infra. 1136 New York Hearing, Vol. I, James D. Harmon, p. 14A-5. 1137 "The building in which Star [Distributors, Inc.) rent space is managed and partly owned by John Zaccario. . . a fact first revealed in a New York City Tribune Copy story. . ." Selle, Pornography Warehouse Target of Irate protesters, N.Y. City Trib., Oct. 29, 1984. 1043 ( officials, zoning board members, and health department officials may be subjected to monetary and political influence. These people sometimes may ignore the organized criminal activity or impose minimal sanctions when punishment is unavoidable. Following are highlights of reports provided to this Commission relating to traditional organized crime involvement in and control of the pornography industry. One report came from a group of law enforcement officers, coordinated through the Investigative Services Division of the Washington, D.C., Metropolitan Police Department, which undertook a study in 1978 to determine the extent of organized crime 1138involvement in the pornography industry. One reason for the.i study was, "(knowledge) that organized crime generally involves itself in situations where the gain far outreaches the risk. The pornography industry fijts this description. "1139 nAn initial probe determined that law enforcement could document Organized Crime control in certain geographic areas. However, it did not appear in 1977 that any single law enforcement body was in possession of documentation reflecting the situation on a national level".1140 (emphasis added) The project participants determined that traditional organized crime was substantially involved in and did essentially 1138 Organized Crime's Involvement in the Pornography Industry, Investigative Services Division, Metropolitan Police Dept., Washington, D.C. (1978). 1139 New York Hearing, Vol. I, Carl Shoffler, p. 214. 1140 Id. at 215. 1044 control much of the major pornography distribution in the United States during the years 1977 and 1978. The group further concluded that the combination of the large amounts of money involved, the incredibly low priority obscenity enforcement had within police departments and prosecutors' offices in an area where manpower intensive investigations were essential for success, and the imposition of minimal fines and no jail time upon random convictions resulted in a low risk and high profit endeavor for organized crime figures who became involved in pornography.1141 During its seventy-eight year history, the Federal Bureau of Investigation (FBI) has been engaged periodically in investigation of persons and organizations who violate the federal obscenity laws. Though the FBI has not recently been involved in many large scale obscenity related investigations,1142 Federal Bureau of Investigation director, William H. Webster, along with present and former special agents of the FBI have provided current information about the pornography industry.1143 In the late 1970s' the FBI prepared a report detailing the extent of organized crime involvement in pornography. In preparing that report, the Bureau conducted a 1141 id. 1142 see, Washington, D.C., Hearing, Vol II, William H. Webster, p. 77-81. 1143 id. at 75; New York Hearing, Vol I, Homer E. Young, p. 16. 1045 survey of the fifty-nine FBI field offices.1144 Basea on tne survey and other sources, FBI intelligence analysts concluded: Information obtained (during the course of the enclosed survey) points out,the vast control of the multi-million dollar pornography business in the United States by a few individuals with direct connections with what is commonly -known as the organized crime establishment in the United States, specifically, La Cosa Nostra .... Information received from sources of this Bureau indicates^ that pornography is (a major) income maker for La Cosa Nostra in the United States behind gambling and narcotics. Although La Cosa Nostra does not physically oversee the day-to-day workings of the majority of pornography business in the United States, it is apparent they have "agreements" with those involved in the pornography business in allowing these people to operate independently by paying off members of organized crime for the privilege of being allowed to operate in certain geographical areas.11*5 In 1985, at the request of the Attorney General's Commission on Pornography, Director Webster conducted a brief survey of the fifty-nine FBI field offices concerning their knowledge of involvement of traditional organized crime in pornography. Director Webster advised this Commission, "About three quarters of those offices indicated that they have no verifiable information that organized crime was involved either directly or through extortion in the manufactures or distribution of pornography. Several offices, did, however, report some 1144 Washington, D.C., Hearing, Vol. II, William H. Webster, p. 81. 1145 Federal Bureau of Investigation Report Regarding the Extent of Organized Crime Development in Pornography, 6 (1978). 1046 involvement by members and associates of organized crime."1146 The FBI reported that on April 30, 1981, Joseph Palladino, a known dealer in pornography in Boston and Worcester, 1147Massachusetts, met with Gennaro J. Anginlo in Boston. Anginlo is the underboss of the New England Organized Crime Family.1148 Palladino complained that one Carlo Mastrototaro was opening an adult bookstore in the Worcester area to compete with the one jointly owned by Pallidino and Mastrototaro. Palladino could not understand why the New York family had authorized Mastrototaro to operate a competing pornography business. Prior to this, Palladino said he had considered Robert DiBernardo of the New York family to be his "compare". In response, Anginlo became angry because Palladino had first sought an explanation from DeBernardo. Anginlo said this prevented him from contacting DeBernardo's boss in New York and he would now have to deal with Sam Cufari, capo of the Genovese family in Massachusetts.1149 One former FBI agent told the Commission: In my opinion, based upon twenty-three years of experience in pornography and obscenity investigations and study, it is practically impossible to be in the retail end of the pornography industry (today) without dealing in some fashion with organized crime either the 1146 Letter, William H. Webster, Director, Federal Bureau of Investigation to Henry E. Hudson, chairman, Attorney General's Commission on Pornography, Nov. 15, 1985. 1147 Letter to the Attorney General's Commission on Pornography from the Federal Bureau of Investigation, March 24, 1986. 1148 id. 1149 Id. 1047 o mafia or some other facet of non-mafia never-the-less highly organized crime. The Chicago Police Department has been involved in the investigation of organized crime families who are engaged in the distribution of pornography in the Midwest.1151 Thomas Bohling of the Chicago Police Department Organized Crime Division, Vice Control Section reported, ". . . it is the belief of state, federal, and local law enforcement that the pornography industry is controlled by organized crime families. If they do not own the business outright, they most certainly extract street tax from independent smut peddlers."1152 An overwhelming majority of obscene and pornographic materials are produced in the Los Angeles, California, area.1153 Organized crime families from Chicago, New York, New Jersey, and Florida are openly controlling and directing the major pornography operations in Los Angeles.1154 According to Chief Daryl F. Gates of the Los Angeles Police Department, "Organized crime infiltrated the pornography industry in Los Angeles in 1969 due to its lucrative financial benefits. By 1975, organized 1150 New York Hearing, Vol. I, William P. Kelly, p. 86. New York Hearing, Vol. I, Thomas Bohling, p. 178. 1152 Id_. at 189. 1153 gee, Los Angeles Hearing, Vol. I, James Docherty, p. 6. J-154 Los Angeles Hearing, Vol. I, Robert Peters, p. 32. Detective Peters estimates that eighty to ninety percent of the pornography in the united States is produced in the Los Angeles area. See also, The discussion of production and distribution of sexually explicit materials. 1048 crime controlled eighty percent of the industry and it is estimated that this figure is between eighty-five to ninety percent today."1155 An investigative report submitted to the California Legislature by the Attorney General of California discussed organized crime infiltration into the pornography industry: In the early 1970's . . . four organized crime groups moved in on pornography operations in California. They met relatively little resistance because the weak-structured organized crime group of Southern California lacked the necessary strength to deter the infiltration of organized crime from the East. Organized crime figures first focused on production and retail operations in California. In this effort, they used the influence of their established national distribution network and effectively resorted to illegal and unfair business tactics. The newly arrived organized crime groups formed film duplication companies which illegally duplicated the films of independent producers and displayed them at nationwide organized crime controlled theaters. Faced with continued piracy and lost of profits, many legitimate producers were forced to deal with organized crime controlled distribution companies and film processing labs. After gaining control or ownership of many California wholesale and retail companies, organized crime forced other independent retailers out of business through price manipulation. Wholesale prices to independent retailers were raised while prices to organized crime controlled outlets were lowered. Independents were undersold by organized crime controlled outlets until lost profits forced them out of business. Many competitors were bought out which allowed the subseguent raising of prices in other parts of the market. Some dealers that openly opposed this takeover were silenced by means of extortion and arson.H56 1155 LOS Angeles Hearing, Vol. I, Robert Peters, p. 32. 1156 investigative Report on Organized Crime and Pornography Submitted to the Attorney General of California, 2-3T 1049 In 1984, California Attorney General John Van De Kamp reported that the arrival of home video cassette recorders on the market in 1979 was accompanied by a growing demand for adult video tapes.1157 California pornographers, linked to the Gambino, DeCavalcante, Luchese and Columbo organized crime families entered this market through companies that produce, duplicate, distribute and sell adult video tapes. Law enforcement agents have described the control of organized crime families in the pornography industry. Organized crime figures and associates are involved in the commerce essential to the pornography business through ownership of the distribution sources of the material. The 1970 Commission on Obscenity and Pornography reported "... crime syndicate members reported in interviews that it was not worthwhile for the syndicate to enter the business, primarily because there was no real economic inducement.»1159 In 198gf there are tremendous profits in the pornography industry. These profits are of the type that can be easily hidden from the Internal Revenue Service, because of the cash transactions and the policy of no cash 1157 State of California, Department of Justice, Organized Crime in California, (1984) 6. Investigative Report on Organized Crime and-i _t ^ = 1 < fnrn{ a 5_Lve Ke JJUJL i vii ~..,.,-..- he Attorney General of California 5. 1050 receipts for merchandise.1160 Law enforcement officials have described large profit margins in the pornography business today. Magazines which cost fifty cents to produce wholesale for five dollars and the retail price is ten dollars or more.1162 A fifty minute eight millimeter film wholesales for three dollars and retails for twenty dollars.1163 video cassette tapes which wholesale for fifteen dollars often retail for eighty to ninety-five dollars.H64 The well-known pornographic film "Deep Throat" was produced by the Periano brothers of the Columbo organized crime family for $25,000 and is reliably estimated to have grossed fifty million dollars as of 1982.H65 The film was "... the biggest money maker of any film to that time and possibly since, in the state of Florida. "H66 Joseph, Anthony, and Louis Peraino all became millionaires 1160 New Y0rk Hearing, Vol. II, William Johnson, p. 82A; See, the discussion of the production and distribution of sexually explicit materials for a detailed explanation of the profitability of the industry. 1161 See, Los Angeles Hearing, Vol. I, James Docherty, p. 6. 1162 New york Hearing, Vol. II, William Johnson, p. 73. 1163 Id. at 82A-5. H64 M. 1165 1166 New York Hearing, Vol. I, William Kelly, p. 108A-3. Id. 1051 (\ as a result of "Deep Throat."1167 They used profits from the film to build a vast financial empire in the 1970s that included ownership of garment companies in New York and Miami/ investment companies, a sixty-five-foot yacht in the Bahamas, "adults only" pornographic theaters in Los Angeles, and record and music 11 fiflpublishing companies on both the east and west coasts. From 1973 to 1976, their corporate empire included Bryanston Distributors, Inc., a motion picture company that earned twenty 1169million dollars in its first year of operation. ioy The Perianos also used profits from "Deep Throat" to finance drug smuggling operations in the Caribbean.1170 Aladena Fratianno, a.k.a., Jimmy Fratianno, a made member of a La Cosa Nostra organized crime family and a former Capo and later acting boss of the Eos Angeles crime family, told this Commission that large profits have kept organized crime heavily involved in the obscenity industry.1171 Fratianno described this involvement to a Commission investigator as follows: "Interviewer: Could you describe the nature and type of involvement organized crime would have in the 1167 Id. at 108A-4. 1168 Cong. Rec., S433 (daily ed . Jan. 30, 1984) (statement of Senator Jesse Helms). 1170 New Y0rk Hearing, Vol. II, Christopher J. Mega, p. 160. 1171 jqew York Hearing, Vol. I, Interview with James Fratianno by Senior Investigator Edward Chapman, Attorney General's Commission on Pornography, p. 112. 1052 pornography industry when you were active in organized crime? Fratianno: Well, it's very, very big. . . . I'd say, 95 percent of the families are involved in one way or another in pornography. . . . It's too big. They just won't let it go. Interviewer: Okay, does organized crime reap a lot of money from their involvement in pornographic industry? Fratianno: Absolutely. Absolutely.1172 The Attorney General's Commission on Pornography concludes that organized crime in its traditional LCN forms and in other forms exerts substantial influence and control over the obscenity industry. Though a number of significant producers and distributors are not members of LCN families, all major producers and distributors of obscene material are highly organized and carry out illegal activities with a great deal of sophistication.1173 This influence and control has increased since the report of the 1970 Commission on Obscenity and Pornography and is particularly evident in the distribution of pornographic materials.il7* Organized crime elements have found that the large financial gains to be reaped from pornography far outweigh the risks associated with the trade. 1172 New York Hearing, Vol. I, Interview with Jimmy Fratianno, by Senior Investigator Edward H. Chapman, Attorney General's Commission on Pornography, p. 115-16. 1173 see, Investigative Report on Organized Crime and Pornography Submitted to the Attorney General of California; State of California, Department of Justice, Organized Crime in California (1984). — 1174 See, The discussion of the production and distribution of sexually explicit materials for further information. 1053 V. RELATED CRIMES AND ACTIVITIES In addition to the myriad of other harms and anti-social effects brought about by obscenity11 there is a link between traditional organized crime group involvement in the obscenity business and many other types of criminal activity. Physical violence, injury, prostitution and other forms of sexual abuse are so interlinked in many cases as to be almost inseparable except according to statutory definitions. Among the crimes known to be interlinked with the pornography industry are: (1) Murder - One of the largest pornographers in the United States during the 1970's was Michael George Thevis who headed Peachtree News in Atlanta, Georgia, and 106 other corporations.1176 in October, 1979 Thevis was convicted in the United States District Court for the Northern District of Georgia for Racketeer Influenced and Corrupt Organizations Act (RICO) violations including murder, arson, and extortion. H" A leading figure in the national distribution of the film "Deep Throat", Robert DeSalvo, has been missing since January, 1175 See, The sections discussing social and behavioral science research, harms and victimization for a more complete explanation. 1176 1177 1982). New York Hearing, Vol. I, William Kelly, p. 76. See, United States v. Thevis, 665 F.2d 616(5th Cir. 1055 1976 and is presumed to have been murdered.1178 DeSalvo provided evidence on behalf of the United States in the Peraino trial arising from the "Deep Throat" film distribution.1179 During the late 1970s a number of persons involved in the pornography business were murdered in what were believed by law enforcement agents to be pornography turf wars.^8" The son of Joseph Periano, one of the producers of "Deep Throat" along with an innocent woman, was murdered "gangland style".1181 Immediately prior to this Commission's hearing in Chicago, Illinois, in July, 1985, Patsy Ricciardi owner of the Admiral Theater there, was found murdered. Chicago Police believe his murder was related to his dealings in the pornography business.1182 m (2) Physical violence damage to property - The damage and injuries range from those sustained by performers!183 forced to engage in physically harmful acts which can often result in New York Hearing, Vol. I, William Kelly, p. 75. 1179 Id^ ; Cong. Rec. S433 (daily ed. Jan. 30, 1984) (Statement of Sen. Jesse Helms). 1180 New vork Hearing, Vol. I, Thomas Bohling, p. 180-87; New York Hearing, William Johnson, Vol. II. 1181 New York Hearing, Vol. I, Christopher J. Mega, p. 162.; Cong. Rec. S433 (daily ed. Jan. 30, 1984) (statement of Sen. Jesse Helms). 1182 New York Hearing, Vol. II, Thomas Bohling, p. 182-83. 1183 See, Chapter 2 in this Part for a more complete discussion about performers. 1056 permanent injury,1184 to damage to property,1185 "knee-breaking"U86 and arson.1187 A veteran FBI agent told the Commission "Over the years there has been heavy violence associated with the pornography industry. Some of the current well-known names in the industry have reported threats against them or physical brutality."1188 A bookstore operator, associated with members of organized crime families, described the "discipline" within the pornography industry for those who choose to disobey rules regarding pricing, territory and other matters.H89 He said, "... Bonjay a year and half ago, took one of the guys held him by his arms up against the wall in the alley, and it's common knowledge, the car ran into him, with the front bumper up against the wall and Los Angeles Hearing, Caryl and Brian Cid, p. 127-53; New York Hearing, Vol. I, Linda Marchiano, p. 51; Washington, D.C., Hearing, Vol. I, Valerie Heller, p. 217-41; Washington, D.C., Hearing, Vol. II, Charles Sullivan, p. 65-77; see also, The discussion of performers and harms attributable to their work. 1185 new York Hearing, Vol. I, Bookstore Operator, p. 152. H86 Id. at 141. U87 New York Hearing, Vol. I, Thomas Bohling, p. 179. U88 New York Hearing, Vol. I, William P. Kelly, p. 83. 1189 New York Hearing, Vol. I, Bookstore Operator, p. 131; The FBI reported such a territorial dispute in 1981 involving pornography stores in New England. The dispute arose betweenJoseph Palladino, an -operative of New England LCN Boss Gennaro Anginlo, and Carlo Mastrototaro, who had been authorized by the New York LCN family to open a competing business in Worcester, Massachusetts. Letter to Attorney General's Commission on Pornography from Federal Bureau of Investigation, March 24, 1986. 1057 shattered his knees. That's a pretty good discipline."1190 This same witness also reported bombs being thrown into stores that were not complying with general price agreements or failed to pay a street tax to organized crime families. " (3) Prostitution and other sexual abuse - "Prostitution is the foundation upon which pornography is built Pornography cannot exist without prostitution .... It is impossible to separate pornography from prostitution. The acts are identical except in pornography there is a permanent record of the woman's abuse."1192 It is estimated that there are between 400,000 and 500,000 1 1 Q 3adult women who have been used in prostitution in America.•li;'-' A recent study found that the average age of the working prostitute was twenty-two; the average age a woman started working as prostitute was seventeen; sixty-three percent of the prostitutes had run away from home; eighty percent were victims of sexual abuse; eighty percent had pimps; and eighty-three percent had no savings or other financial resources.1194 These women, who have been subject to every form of rape, sexual assault, and battery, 398. 1190 New York Hearing, Vol. I, Bookstore Operator, p. 131. 1191 Id. 1192 New York Hearing, Vol. IV, W.H.I.S.P.E.R. Statement, p. 1193 1194 Id. Id. and whose lives are totally controlled by their pimps, are used 1195and abused by pornographers for the creation of their wares. It is impossible for most sexually explicit books, magazines, or films to be produced without acts of prostitution. Michael Joseph Glitta one of the two major pornography distributors in Chicago, and a lieutenant in the Accardo organized crime family, controlled a "strip joint" where numerous 1 1 Q7persons have been arrested for prostitution related offenses. * Pornographer Martin Hodas was identified by his former bodyguard as the one-time owner of a massage parlor and prostitution empire in the northeast. (4) Narcotics distribution - Narcotics are often distributed to performers who appear in pornographic materials to lower their inhibitions and to create a dependency.1198 Profits earned by organized crime from pornography sales have been used to finance 1195 175-84. Washington, D.C., Hearing, Vol. I, Sarah Wynter, p. 1196 See, Chapter 2 of this Part for a discussion of performers. 1197 New York Hearing, Vol. I, Thomas Bohling, p. 185. An investigator reported to the Commission that child pornographers use cocaine to lure children, create an addiction and thus a lasting relationship of molestation and pornography production. Miami Hearing, Vol. II, Dennis Shaw, p. 107. Los Angeles Hearing, Vol. I, Chris, p. 94-95; "I had been taking drugs throughout the time I was in prostitution and pornography. They had been supplied and doled out to me by my pimp." Washington, D.C., Hearing, Vol. I, Sharah Wynter, p. 185. 1058 1059 drug smuggling.1199 Joseph Peraino, a soldier in the Columbo organized crime family, invested proceeds from the movie "Deep Throat" in drug smuggling. New York State Senator Christopher Mega, Chairman of the New York Organized Crime Commission, said, "Few have imagined that the profits of "Deep; Throat" may have been part of the capital invested in the development of Norman's Cay into the major drug smuggling base n6rth of the Panama Canal."1200 Local police also report that "narcotic transactions are present in these deteriorating neighborhoods (where "adult bookstores" locate) and go hand-in-hand with the rampant criminal activity in those areas."1201 (5) Money laundering and tax violations - The nature of the pornography business provides inviting opportunities for skimming On1202 every level. There is often dishonesty among producers, wholesalers, distributors, retailers and others who attempt to cheat each other.1203 The often "cash only" business creates immense opportunities to launder money received from other organized crime activity. 1199 New York Hearing, Vol. I, Christopher J. Mega, p. 167. 1200 id. 1201 Los Angeles Hearing, Vol. I, James Docherty, p. 8. 1202 Skimming is the practice of fraudulently reporting income so as to avoid tax liability. 51. 1203 New York Hearing, Vol. I, Bookstore Operator, p. 146- 1060 Bookstores which primarily sell sexually explicit material have a consistent sales format throughout the United States. Generally there are two separate operations for accounting purposes, loosely identified as "frontroom" and "backroom" operations.1205 The frontroom operation generally consists of a sales area for paperback books, magazines, rubber goods, lotions, stimulants and other materials.1206 The front room operations profits are generally used to pay for rent, utilities, materials, and employee wages.1207 The back room operations consist of peep machines which are coin operated and produce substantial income that is usually not reported as taxable income.1208 A local police officer noted, "The backroom operation usually takes in twice the amount as the frontroom operation."1209 A bookstore operator and associate of known organized crime family members, reported to this Commission that such "skimming" commonly occurs with video cassette rentals and magazines as well as the peep 1204 See, The discussion of production and distribution of sexually explicit materials for a further explanation. 1205 New York Hearing, Vol. I, Bookstore Operator, p. 146- 51; New York Hearing, Vol. II, William Johnson, p. 73-74. 1206 New York Hearing, Vol. II, William Johnson, p. 73-74. 12°7 id. 1208 id. 1209 id. at 73. See also, The discussion of the production and distribution of sexually explicit materials for more detailed description of bookstores. 1061 machine coin boxes.1210 Organized crime associate Martin Hodas, who was convicted in federal court, Buffalo, New York, in 1985 for obscenity violations has been heavily involved in peep machines.1211 Micahel Thevis, once a major distributor of pornography in the South, told a meeting of organized crime family members and associates that he owned ninety percent of the movie viewmatic machines in the United States. Thevis was interrupted by Robert DiBernardo, a person alleged to be a member of the Gambino (and/or DeCalvalcante)1212 organized crime family, who reminded him that though he might have "proprietary rights" the machines were owned by "the family."1213 The idea of converting run down theatres in the Midwest into pornographic adult movie houses to launder cash from other 25. 1210 New York Hearing, Vol. I, Bookstore Operator, p. 124- 1211 New York Hearing, Vol. I, Christopher J. Mega, p. 167. 1212 several law enforcement agencies for years have identified Mr. Di Bernardo as an associate of the de Cavalcante family of New Jersey. However, during the trial of Di Bernardo and Rothstein in the Miporn case in June of 1981, a New York City FBI agent identified Di Bernardo as a "soldier" of the Gambino family of the Mafia, based upon information provided to the FBI office in New York. Now, is it possible to be involved with both families? I don't know, but that's what the information is, that he is involved with both. It could be right and it might not be right. I don't know. New York Hearing, Vol. I, William P. Kelly, p. 77-78. 1213 New yor)t Hearing, Vol. I, Homer Young, p. 34. 1062 illegal rackets was the brain child of Chicago organized crime figure Patsy Riccardi who was murdered in July, 1985. Myron and Michael Wisotsky were convicted in the United States District Court for the Southern District of Florida in late 1985, for tax evasion which arose from skimming activities at their sexually oriented book-stores.1215 A bookstore operator told the Commission: Subject: boxes. 80 percent of the skimming goes on in coin Interviewer: Right, how does that happen? Subject: Because who can tell how many customers come in today, and drop how many guarters, in how many machines. Alright? Subject: I had a machine. I'm running a hundred stores. I'm doing $1,200 to $1,600 a day in guarters (per store). I'm doing maybe three hundred to five hundred dollars a day in cassette rentals, club memberships ... if you pay $69.95 per year membership then you also charge $3.95 a day for the rental of each film, right, okay, I'm doing maybe $350 a day in magazines and pocketbook sales. And at the time maybe five or ten rolls or film a day comes to maybe one hundred or five hundred dollars. So we're talking three thousands dollars a day roughly. Okay. Your magazines and your films and pocketbooks and your straightline pocketbooks .... It pays your rent, electric, gas, pays your overhead. If I don't something's happening wrong. Plus, now with the videos coming in, the video rentals go in your pocket too. It's another thing that gets bringing up. It's coming up all the time. Subject: Alright, the guy who collects the machine is either a manager, or owner, or owner/manager or just 1214 New York Hearing, Vol. I, Thomas Bohling, p. 182. 1215 New York Hearing, Vol. II, Marcella Cohen, p. 32; United States v. Wisotsky, 83-741-Cr EBD (S.D.Fla.). 1063 158-315 Vol. 2, 0 - 86 - 2 somebody like I was in (city) in total control, know I wouldn't steal they knew I didn't steal. They Subject: The only way you can catch me stealing, is if I got partners, and I'm going to keep those records till the 30th of the month, to the last day of each month. Because the last day of each month I have been figuring on the coin boxes and the end figure on the coin boxes.1216 (6) Copyright Violations - Organized crime elements involved in the production of videocassettes and movies have been known to infringe copyrights by the "pirating" of films produced by legitimate studios and the use of music or other parts of a legitimate enterprise without royalty agreements.1217 (7) Fraud - Layers of corporations and hidden transactions of all descriptions are used by organized crime families involved in pornography to conceal true ownership and activities.1218 45. 1216 New York Hearing, Vol. I, Bookstore Operator, p. 144- 1217 "Arno said he had been previously somewhat reluctant to inform the agents that he was involved in the reproduction of pirated motion pictures; as this was a violation of federal copyright statutes. Arno said that there were several problems connected with the production of these video tape cassettes, because there was a lot of pressure from the FBI recently in this area and that several producers of pirated films had been busted in the recent past and were now working for the FBI." New York Hearing, Vol. II, Marcella Cohen, p. 17, 38. 1218 see, The discussion in the Recommendations for Law Enforcement Agencies. "To effectively conceal the full extent of its involvement in the nation's pornography industry, organized crime has developed a maze of organization structures through complex legal maneuvering. Pornography businesses are often represented on corporate papers by persons with no apparent ties to the company's true owner. Business transactions are commonly conducted with hidden corporate affiliates which creates an 1064 Other crimes associated with organized crime involvement in 1219obscenity include child pornography, possession, transfer and sale of machines guns and silencers,122 and illegal gambling.1221 appearance of legitimate competitive business practices. Foreign corporations and banks have been used to circumvent normal business accounting methods. For protection purposes, pornographers frequently form several corporations for one operation. They know that law enforcement authorities, when serving search warrants as a result of possible obscenity violation, are restricted to search only the corporation named. The other corporations remain protected from police inspections." Investigative Report on Organized Crime and Pornography Submitted to the Attorney General of California,5T 6(1978). 1219 New York Hearing, Vol. II, Marcella Cohen, p. 38. 1220 id. 1221 Pornographer Michael Joseph Glita, member of Accardo family was reported to the United States Senate Rackets Committee as the number two man in a North Side Chicago numbers racket. New York Hearing, Vol. I, Thomas Bohling, p. 182. 1065 V. Reuben Sturman Reuben Sturman, also known as Robert Stern, Roy C. English, Robert Butler, Paul Shuster, and Paul Bekker, of Cleveland, Ohio, Los Angeles, California, and elsewhere, is widely believed to be the largest distributor of pornography in the world. 222 Law enforcement authorities believe that the Sturman empire has financial control of nearly two hundred businesses in nineteen 1223states, one Canadian province and six foreign countries. Sturman is closely associated with known organized crime family members. James Fratianno described Sturman's connection with Robert DiBernardo, a member of the LCN Gambino (and/or de Cavlacante) Family: ". . . if he has a !problem he goes to Debe.1224 Sturman and DiBernardo have had a long term business relationship, "... they were partners, plus ... if Debe wanted [Sturman] to do something, he [Sturman] would do it."12" More than twenty years ago Sturman was a small time candy, tobacco and comic book distributor who moved slowly into 1222 New York Hearing, Vol. I, Marilyn Sommers, p. 199; E. Whelan, Prince of Porn, Cleveland Magazine 143(Aug. 1985). 1223 New Hearing, Vol. I, Marilyn Sommers, p. 200. 1224 New York Hearing, Vol. I, Interview with Jimmy Fratianno, Edward Chapman, p. 115. Id. 1066 pornographic magazines.1226 Avoiding any serious legal problems, he built the business into a mammoth operation encompassing all phases from production to retail sales with a myriad of corporate identities. One account describes his organization as follows: "[Sturman] structured his many companies from retail stores to video production firms, in a honeycomb of nominees, false names and dead associates to avoid local obscenity prosecutions. [A 1985 tax case] reveals that the corporate structure has grown hydra- headed over the years, apparently with the more serious intent of avoiding taxes. J-22' Sturman's influence on the pornography industry is so great because his enterprise produces a very wide range of items and distributes them to retailers through countless disguised channels.1228 According to Los Angeles police, 580 of the 765 adult video arcade machines there are owned by companies controlled by Sturman.1229 police report that Sturman typically installs equipment worth $22,000 to $60,000 at no cost to the store owner.1230 jn exchange, he reaps fifty percent of the income from the peepshows.1231 & store owner in San Diego, 1985). 1226 E. Whalen, Prince of Porn, Cleveland Magazine, 82(Aug. Id. 1228 The Porn Peddlers, San Diego Reader, Vol. 15, No. 10, Mar. 13, 1986, p. 17. Id. 1230 id. 1067 California, described Sturman's hold on the industry there by saying, "People are afraid of him because of his power. He could just cut people off. You could just die out there. Paranoia sets in and I'm sure he uses it to his advantage."1232 Over the past few years, a number of Sturman associates and corporations have been convicted on obscenity charges and other violations of law.1233 sturman, himself however, has evaded any serious consequences for his acts.^234 An indictment returned by a federal grand jury in Cleveland in 1985 alleged Sturman conspired to evade millions of dollars in taxes by laundering seven million dollars through foreign bank accounts and also charges that he destroyed records subpoenaed by the grand jury.1235 One of nis co-defendants, Scott Dormen, plead guilty in late 1985 to his part in the conspiracy, admitting that he skimmed money from Sturman's income and delivered at least $450,000 in cash, to Sturman that went unreported.1236 when Sturman is the subject of prosecution, 1232 1233 See, e.g., United States v. Sovereign News Co., et. al, United States District Court, Western District of Kentucky. 1234 In 1980 Sturman was charges in the MIPORN investigation. The charges were ultimately dismissed. Sturman was also charged with a prior obscenity violation in Cleveland in 1976. He was acquitted. 15; 1235 1236 New York Testimony, Vol. I, Marilyn B. Sommers, p. 1- Id. 1068 [he] professes indignity when legally attacked - as he always is - and fights back savagely. He also covers legal fees and fines of associates and gives bonuses when they face the consequences of arrest. Reuben Sturman controls General Video of America (GVA), one of the largest distributors of sexually explicit video tape cassettes in the United States.1238 QVA recently released and distributed a "White Paper" to video cassette retailers giving them notice of government action to prosecute obscenity violations. The "White Paper" also announced the creation of a legal defense fund for GVA and others involved in the distribution of such video cassettes. In addition, they offer a toll-free number for retailers to call an attorney provided by GVA to advise them on legal matters. 1237 E. Whalen, Prince of Porn, Cleveland 82(Aug. 1985). 1238 New yor|< Hearing, Vol. I, Marilyn Sommers, p. 209. 1239 Tne "white Paper" fails to disclose that some of the video cassettes sold by GVA have been found to be obscene by state and federal courts and that individuals and corporations have been convicted of felonies for their distribution. See, New York Hearing, Vol. II, William Johnson, p. 79. 1069 VI. CONCLUSION A local law enforcement officer told this Commission, "The industry is very difficult to investigate as a local police officer, as a business in one jurisdiction, in general, is incorporated in another jurisdiction, receives materials from another jurisdiction and is controlled by individuals in another jurisdiction. Federal law enforcement involvement is an absolute necessity to attack the real problem of organized crime influence."1240 while no known additional organized crime families may live a particular state, the effect of their production, distribution and sale of obscene material can be readily apparent. Another local law enforcement officer concluded, "Left unchecked, organized crime, in a traditional sense, can suck the lifeblood out of a community. Many times, their enterprises have been viewed as "service" oriented or victimless crimes. However, it tears at the moral fiber of society and through unbridled corruption, it can weaken the government." The findings of the 1978 Federal Bureau of Investigation analysis remain essentially correct: In conclusion, organized crime involvement in pornography ... is indeed significant, and there is an obvious national control directly, and indirectly 1240 New york Hearing, Vol. I, Carl Shoffler, p. 217-18. 1241 New York Hearing, Vol. II, William Johnson, p. 82A-10. 1070 by organized crime figures of that industry in the United States. Few pornographers can operate in the United States independently without some involvement with organized crime. Only through a well coordinated all out national effort, from the investigative ana prosecutive forces can we ever hope to stem the tide of pornography. More importantly, the hugh profits gathered by organized crime in this area and redirected to other lucrative forms of crime, such as narcotics and investment in legitimate business enterprises, are certainly cause for national concern, even if there is community apathy toward pornography.1242 1242 Federal Bureau of Investigation Report Regarding the Extent of Organized Crime Involvement in Pornography. (1978). 1071 APPENDIX ONE MIPORN The most significant federal obscenity investigation and prosecution to date arose in the Southern District of Florida. The case, initiated by local police officers, was eventually the focus of a nationwide investigation conducted by the Federal Bureau of Investigation in cooperation with the United States Department of Justice Organized Crime Strike Force. Special Attorney Marcella Cohen, at the request of this Commission, summarized the investigation and some of its results to date as follows: The undercover FBI investigation was referred to as MIPORN, an acronym, which stood for Miami Pornography. MIPORN was a two and a half year undercover investigation into organized crime influence in the pornography industry. This investigation resulted in many indictments for interstate transportation of obscene materials and revealed other criminal activities resulting in indictments and forfeitures including but not limited to racketeering, possession and transfer of machine guns and silencers, child pornography, interstate transportation o£ stolen property and copyright violations. Bruce Ellavsky and Patrick Livingstonl243 were two agents of the Federal Bureau of 1243 On January 21, 1982, it was disclosed that Agent Livingston had been arrested for shoplifting in a department store outside Louisville, Kentucky. After being notified of Livingston's arrest, two MIPORN defendants, Robert DiBernardo and Theodore Rothstein, filed motions asking the United States 1072 (V Investigation who were assigned to the Miami Office of the FBI in September and October 1977. They were to investigate large District Court in Miami to vacate their convictions and dismiss the indictments against them. They alleged the Grand Jury had received tainted evidence in the form of testimony from Livingston, whose credibility was now seriously in doubt. The District Court conducted a full hearing on the matter and heard testimony form psychiatrists who believed Livingston had a propensity to lie. Several of Livingston's FBI colleagues also testified regarding their doubts about his mental and emotional well being. DiBernardo and Rothstein also alleged that the prosecution had presented additional prejudicial evidence before the Grand Jury, including information about the defendant's alleged connections with organized crime and related criminal offenses. The District Court ruled that the Grand Jury had received tainted evidence from Agent Livingston who, it concluded, did have a propensity to lie. Based on that tainted evidence and the other matters presented to the Grand Jury which the court found to have been prejudicial, the Court vacated the convictions and dismissed the indictments. This decision is reported in United States v. DiBernardo, 552 F.Supp. •1315{S.D.Fla. 1982).The United States Court of Appeals for the Eleventh Circuit subsequently reversed the District Court's ruling in United States v. DiBernardo, 775 F.2d 470(llth Cir. 1985). TheAppealsCourtruledthat neither the questions regarding Agent Livingston's credibility nor the alleged prejudicial evidence presented to the Grand Jury were sufficient grounds for the District Court to invoke the drastic measure of dismissing the indictments. The Appeals Court held that deliberate abuse of the Grand Jury process, such as perjury or governmental misconduct, must be present to justify the District Court's dismissal of an indictment. Neither was established in this case. The Court further reasoned that permitting the District Court to dismiss indictments based on allegations of this nature would invite similar challenges by defendants to every indictment. The shoplifting charge against Agent Livingston was ultimate dismissed by the local prosecutor in Kentucky after Livingston signed a release agreeing not to file suit based on false arrest. To the extent that any of Ms. Cohen's statement was based on evidence provided by Agent Livingston, it has been fully corroborated by other evidence including tape recordings, third party statements, surveillance and court records. Most of the convictions discussed in this portion of the report occurred after the 1982 District Court ruling dismissing the indictments in United States v. DiBernardo. 1073 scale producers and distributors of pornography throughout the United States. In October 1977 an undercover company was established in South Florida which was to be the basis of the operation. The name Golde Coaste Specialties, Inc., was chosen as the name of the company and it was incorporated in the State of Florida. There were a number of companies with variations o£ the name Gold Coast so it was necessary to put an "e" on the end of gold and "e" on the end of coast in order to incorporate in Florida. Special Agent Bruce Ellavsky used the undercover name Bruce Wakerly and Patrick Livingston used the name Pat Salamone. Additionally, an office warehouse was rented where meetings were conducted. The "front" business of the warehouse was a blue jeans store while the back of warehouse was where the pornography business was located. At a later time, G&C Sales, Ltd., was established in the Grand Cayman Islands to lend credibility to the operation. When the agents spoke to individuals who were involved in the distribution of pornography throughout the industry, the agents would inform them that they had a mail order operation involved in the distribution of "hard" or hard core pornographic eight millimeter films, magazines, and video tape cassettes. In reality there was of course no such mail order business. For the purpose of the undercover operation the agents altered the manner in which they dressed. They dressed casually and wore gold necklaces, diamond rings, gold bracelets and expensive watches. 1074 During the course of the undercover investigation the agents travelled throughout the country and met with pornographers in virtually every major city including New York, Los Angeles, San Francisco, Las Vegas, Chicago, Pittsburgh, Minneapolis and Providence. The agents found that major producers and distributors of eight millimeter films, magazines and video tape cassettes would meet every six months in various cities throughout the United States. The meetings were usually not conventions with any planned agendas. They would frequently take place in a major hotel within the city, and conversations would take place in the lobby areas of the hotel, or in lounges or restaurants located off the lobbies. The agents on occasion would plan or attend a meeting which would take place in the room of whichever distributor or producer of pornography they wanted to meet with, see their products or further discuss potential orders. At other times, booths would be set up at a consumer electronics show. The following are some of the individuals and companies investigated during the course of the two and a half year undercover MIPORN investigation: 1. Star Distributors Inc. - Robert "Debe" DiBernardo, Theodore "Teddy" Rothstein, and Andrew "Andre" D'Apice, New York, New York. Star Distributors is a group of companies headquartered in New York, New York, and controlled by Robert "Debe" DiBernardo. 1075 DiBernardo's close business associates at Star Distributors were Theodore "Teddy" Rothstein and Andrew "Andre" D'Apice. In April 1978, the agents attended a pornography convention at the Fairmont Hotel in New Orleans, Louisiana. In a restaurant in that hotel, the agents were introduced to Teddy Rothstein by Rubin Gottesman of National Film Company, Los Angeles, California. Mr. Rothstein agreed to supply Golde Coaste Specialties with hardcore pornographic eight millimeter films, magazines and video tape cassettes. Rothstein said he would introduce the agents to Andre D'Apice, his eight millimeter man. Later on that same date in a hotel room at the Fairmont Hotel, the agents were involved in conversations involving the sale of films with Roger Summers and Joe Mallen of California International Distributors. Present at that meeting were Rothstein and D'Apice. D'Apice said he was a partner of Rothstein's and that they produced the film series entitled "Super Sound" and "Mustang." D'Apice stated they supplied distributors throughout the United States with these series and would also supply them to the agents. On April 21 and April 22, 1978, the agents had a series of meetings at Star Distributors, 150 Lafayette Street, New York City. They first met with D'Apice who informed them that there had been some concern as to whether Golde Coaste was a front for law enforcement; however Rothstein and Robert "Debe" DiBernardo said they had checked Golde Coaste amongst their national associates. Rothstein had confirmed with Al Tapper (now 1076 deceased) of California Publishers Liquidating Corporation that the agents were "good people" and that Tapper had dealt with them for a substantial period and not been arrested. During the meeting D'Apice stated that the agents "would have no problem whatsoever dealing with Mr. Rothstein or 'Debe' as long as you are one hundred per cent good people . . . but if you should cross °Debe' there are plenty of people who would kill for him." Between April 24, 1978, and April 27, 1978, the agents recorded a number of telephone conversations between themselves and the principals at Star Distributors concerning shipping arrangements for the films which had been ordered. The agents were informed by D'Apice which false names would be utilized as shipper and consignee.• During the sentencing hearing on this case, November 20, 1981, the following pertinent information was provided to the Court: Jimmy "the Weasel" Fratianno at the time of the hearing was in the Witness Protection Program and guarded on a twenty-four hour basis by the United States Marshal's Service. Jimmy Fratianno told Special Agent Bruce Ellavsky in his conversations with the agent in May 1980 and May 1981, that he, Fratianno, was a member and one time acting boss of the Los Angeles family of what he called La Cosa Nostra, an organized crime group in Los Angeles. During 1975, Jimmy Fratianno was a partner of Mickey Fine in a pornography operation located in Los Angeles. 1077 Initially, in 1975, when Fratianno was dealing with Mickey Fine, he wanted to obtain some money from some of the pornographers who were operating in the Los Angeles area over whom he had no control. Fratianno later learned that Reuben Sturman, a major distributor of sexually explicit material located in Cleveland, had some interest in the Los Angeles area. At that time Jimmy Fratianno spoke to Pete Milano, a capo in the Los Angeles crime family who informed him that previously he and some individuals from the Cleveland organized crime family with Ettore "Terry" Zappi, had put pressure on Reuben Sturman for money and obtained $200,000 from Sturman due to Sturman's association with various families in New York. During this conversation with Pete Milano, Fratianno told Milano that he wanted to do the same thing. Milano said in order for him to do that he would have to see Ettore "Terry" Zappi. At that point Fratianno made arrangements through Tony Randazzo, a member of the Cleveland organized crime family to make an introduction to Zappi which he did, in Florida. During their association together as partners, Fine, on several occasions, had mentioned the name "Debe" to Fratianno. Fratianno asked Mickey Fine who "Debe" was. Fine told him that as far as pornography goes, "Debe" is the main man in the country. During April 1976, Fratianno went to the Westchester Premier Theatre in New York to see a Frank Sinatra concert. VJhile at the Weschester Premier Theatre he met with Ettore "Terry" Zappi, who Jimmy Fratianno knew as a capo in the Gambino crime family organized crime family in New York. When Fratianno saw Zappi 1078 there were two other people with him, one of whom was Frankie Duff, also known as Frankie D'Appolino, a Gambino member. The other person at that time was unknown to him at first. Fratianno spoke with Zappi about pornography and the fact that he wanted to get into the business to a greater extent in the Los Angeles area. During this conversation, Fratianno said to Zappi that every time he talks about pornography in the Los Angeles area, the name "Debe" comes up. He said he hears the name constantly "Debe." Fratianno asked Zappi who "Debe" was. Zappi laughed and said "Debe" was sitting right next to him and then introduced Fratianno to Robert DiBernardo. Fratianno proceeded to talk to DiBernardo concerning the pornography business, especially pertaining to the Los Angeles area. DiBernardo told him that if he wanted to get in the business he should have done it four or five years ago. Now it was all locked up. Fratianno said that when he was introduced to DiBernardo by Zappi at that time he knew from the way he was introduced at that time DiBernardo was not a member. Zappi said that he and DiBernardo were partners in the pornography business. Fratianno said that during 1977 he heard from several sources that DiBernardo had been made a member of the Gambino family. There was testimony at the sentencing hearing in United States v. DiBernardo, that in November 1981, Mr. DiBernardo's car was parked in front of Paul Castellano's home in Staten Island. Several reliable sources supplied information to the Federal Bureau of Investigation that DiBernardo is a made member of the 1079 Carlo Gambino organized crime family. A source advised that DiBernardo is a big money earner in pornography in New York, Miami and other places throughout the United States and he enjoyed the privilege of reporting directly to Paul Castellano, now deceased, who was allegedly the boss of the Carlo Gambino organized crime family. United States v. Ralph Borello, was a federal customs cases, involving the smuggling of 771 eight millimeter films by means of false invoices. Borello allowed someone else to use his name in importing shipments of eight millimeter films. Informant information revealed that in 1981 Borello was an employee of Robert DiBernardo. Show World, a multi-faceted pornography outlet on 8th Avenue in New York City, is controlled by Robert DiBernardo. Borello himself has been involved in the pornography industry since the 1960S and maintains the machines in Show World. Borello had twenty-two prior convictions mostly stemming from obscenity related arrests. One was for bribery of a police off.icer in order to discover information regarding impending searches. 2. A & A News-Anthony DeFalco and Paul Gorman, Chicago, Illinois. During a meeting at A & A News in March 1978, an agent was taken to an area in the warehouse behind a "fake" brick wall. Behind the brick wall were the eight millimeter films. In a metal cabinet behind the fake brick wall were the "animal" films depicting acts of bestiality. 1080 Paul Gorman said he could obtain sound projectors for Golde Coaste Specialities at a very good price. He said that these projectors were often "too hot to touch" and that there might be a truck having an accident in the near future, at which time he would have several hundred projectors available. On March 15, 1978, in a tape recorded conversation Gorman said that Anthony DeFalco was in court today because one of the stores had been "hit", that is, searched by police. Gorman said that in the past they had almost been "hit" while a load of child pornography was still on the premises but that the police had gotten to the film room one 'day late. Gorman said they had shipped the child pornography the previous day and that the police were jerks for not grabbing the stuff earlier. In October 1978, the agents met with Tony DeFalco and Paul Gorman. DeFalco mentioned the fact that he had received numerous inquiries in the past several months regarding the agents and that there were rumors around the industry that the agents were "the heat." DeFalco said that the pornography business was a close knit group of individuals, with virtually everyone in the industry has known each other for many years, and that it is almost impossible for someone new to break into the business. DeFalco said that the hard core market was shifting from eight millimeter film to video tape cassettes. The agents told DeFalco that they had conversations with California International Distributors (CID) regarding the shipment of eight millimeter films to Miami, Florida. DeFalco was told that CID said they 1081 were on probation in Florida and would not ship hard core to Florida. DeFalco said he would handle the shipment of eight millimeter hard core film and video tape cassettes to Golde Coaste Specialties in Miami from CID in Los Angeles, California. DeFalco said the agents should contact CID, place an order and it would be shipped directly to him in Chicago, Illinois. DeFalco said that upon receiving the shipment he would immediately reship it from Chicago to Miami, Florida. DeFalco said he wanted to make a few dollars on the transaction for his trouble, but would be happy to enter into this arrangement with the agents and CID of Los Angeles, California. DeFalco said he had received a letter from a person "established" in the pornography business which stated in effect that anyone dealing with the agents should be wary of them being cops. DeFalco and the agents discussed Golde Coaste Specialities' interest in the purchase of L.W. Sales, Chicago, Illinois. DeFalco said he had never been able to get along with Leo Weintraub in the past and would prefer to have the agents running Weintraub's operation in Chicago. DeFalco said Weintraub continues to run his wholesale operation out of his warehouse on Milwaukee Avenue but that he sold all five of his bookstores. DeFalco would not identify the individual to whom these stores were sold. DeFalco said that the peep machines were owned by another individual and said that the new owner of the stores would receive only a percentage of the earnings from the peep 1082 o show operation. 3 Imperial News - Kenneth Guarino, Anthony "Butch" DiBona and Joseph Renzi, Jr., Providence, Rhode Island. In November 1977, an undercover agent had a discussion with Guarino concerning the fact that Guarino felt that the Federal Bureau of Investigation viewed him as the kingpin of hard-core pornography. Guarino then took the agent to a "secret" room in his warehouse which he stated contained his hard-core films. In November 1977, the agents met with DiBona who said that he, Guarino and Renzi had to be careful of shipping to South Florida because of the "heat" from local and federal authorities. However, he said that they had "checked out" the agents and they were good people. Two shipments to Golde Coaste Specialities in Miami, Florida, from Imperial News contained fictitious names in the return address. 4. S. and L. Distributors - Norman Arno, Thomas Sinopoli, Marty Bernback, Sandy Sarnblad, Timothy "Tim Simpson" Burns, Los Angeles, California. In May 1978, the agents met with Norman Arno, owner of S & L Distributors. Arno said he was willing to meet the agents since they had been dealing with his employee Tim Burns for over eight months and no one had been arrested. Arno said he was dealing with Rubin Gottesman (National Film Company, Los Angeles, California) regarding purchase and sale of video tape cassettes of major motion pictures. After a $3,000 check 1083 was given to Arno by Agent Ellavsky, Arno said he would send Ellavsky a "phony" invoice reflecting payment of $3,000 and would label the invoice as being for magazines or periodicals. Arno said he wanted to obtain the remaining $3,200 in cash so he would not have to report it as income. In July 1978, Arno told the agents that there were rumors that they were "the heat". Arno alluded to the fact that he was suspicious that the agents were cops. Arno said the pornography industry was a close knit organization and that most individuals have been in the business several years and no one seemed to know where the agents came from. Arno said he did not want to take any calls concerning legitimate or "straight" video tape cassettes over his telephone at his residence or his office. He stated that arrangements could be worked out whereby he would call from a pay telephone to obtain the orders desired by Golde Coaste Specialties. Arno said he had previously been somewhat reluctant to inform the agents that he was involved in the reproduction of pirated motion pictures as this was a violation of federal copyright statutes. Arno said there were several problems connected with the production of these video tape cassettes. He said there was a lot of activity by the FBI recently and that several producers of pirated films had been "busted" in the recent past and were now working for the FBI. In January 1978, Arno said he had first heard problems about the agents from Ron Selinger (Bon Jay Sales, Baltimore, Maryland) 1084 and that Selinger said he was going to meet with the agents in Miami, Florida, until he received a telephone call from a friend of his advising him not to deal with the agents. Arno said Chicago was a rough town and that a former employee of Leo Weintraub by the name of Rene had had his operation blown up in Chicago reportedly by Weintraub. In January 1980, the agents met with Norman Arno at his Video Cassettes X Rated (VCX) display at the Consumer Electronics Show held at the Hilton Hotel, Las Vegas, Nevada. The agents told Arno they brought with them a check to give to him as payment on a debt. The agents and Arno went inside the VCX display. At that time Arno said that Special Agent William Kelly of the Miami FBI Office was behind them and was about to photograph them. Arno told Ellavsky not to turn around and not to write the check at that time but to come to his hospitality suite at Ceasar's Palace where he would receive payment. 5. Sovereign News Company - Reuben Sturman, Joe Zernic, Al Bloom, Steve Martin Assid, Cleveland, Ohio. In October 1978, the agents met with Joe Zernic in the lobby of the Olympic Hotel in Seattle Washington, at one of the semi-annual pornography conventions discussed earlier. Zernic said he had heard rumors about the agents being cops. Zernic said he had tried to contact the person who had introduced the agents to him without success. On January 5, 1980, the agents 1085 met with Reuben Sturman, owner of Sovereign News Company, Cleveland, Ohio. They discussed past dealings the agents had with Sovereign News. The agents mentioned they had previously dealt with Joe Zernic and had purchased eight millimeter film and magazines from him. Sturman said that Zernic was one of his key employees. Sturman has since been indicted on other charges relating to tax evasion. 6. California Interriational Distributors (CID) - Noel Bloom, Roger Summers, Joe Mallen, Roger Chan, Al Bloom, Los Angeles, California. In March 1978, Summers stated that his boss, Noel Bloom had problems in Florida approximately seven years ago and that he was somewhat reluctant to ship to Florida because he was under probation in that state. Summers discussed with the agents the possibility of contacting Reuben Sturman at Sovereign News, Cleveland, Ohio, to assure prompt shipment of the "Swedish Erotica" series through Sturman to the agents in Miami, Florida. Between August 1978 and March 1979, the agents had conversations with Summers and Mallen regarding the scheme of shipping "Swedish Erotica" through a third party. 7. L and W Sales - Leo Weintraub, Chicago, Illinois. 1086 o In March 1978, the agents dealt with Leo Weintraub, owner of L and W Sales who agreed to ship hardcore films to Miami, Florida. 8. Le Salon Distributors - Roland Bouldreault and Larry Nelson, San Francisco, California. Nelson told the agents in March 1978 that he would have to check out the agents prior to shipping to Miami, Florida. Nelson asked who the agents had dealt with and the agents said A & A Distributors of Chicago, Illinois. Thereafter, Nelson placed a long distance telephone call to Tony DeFalco, main owner of A & A Distributors. After talking to DeFalco, Nelson said he would ship hard core material to Golde Coaste. Nelson said DeFalco said the agents were "good people" and that he (Nelson) trusted DeFalco completely, having dealt with him for a long period of time. The shipments were sent from Foxx Distributors, 47 Minna Place, San Francisco, California, which was a fictitious name and address. In July 1978, the agents discussed with Bouldreault the possibility of distributing a bondage film depicting sado- lasochistic acts. Bouldreault said he was very interested and that he could possibly distribute several hundred copies of such films to his outlets in Amsterdam. During a sentencing hearing on June 28, 1984, the United States submitted invoices demonstrating that from 1976 through 1087 mid-1978 child pornography materials were shipped from Le Salon and a company by the name of All American Studios, San Francisco, California. Among the titles was "Bare Boys", a sexually explicit magazine depicting boys under the age of fourteen. There was testimony by William Dworin, of the Los Angeles Police Department, who stated that he knew one of the boys depicted in the magazine and that he was actually eight or nine years old when the picture was taken. 9. Walter "Frenchy" Bagnell - leased office space at M & M Sales Distributing Corporation, Los Angeles, California. Bagnell stated in September 1977, that he was one of the largest distributors and producers of hard core pornography and that he specialized in "boy-boy" (homosexual) films. Bagnell said he had organized crime connections in Chicago and New York. Bagnell said he was having problems with Bon Jay Sales in Baltimore, Maryland, and that he was traveling to New York in a few days to meet with his "connection" people. They would then take a trip to Bon Jay to collect a $34,000 debt that Bon Jay owed to Bagnell for hard-core pornography that Bagnell had previously shipped to them. Bagnell said he was leaving Los Angeles to travel to Tulsa, Oklahoma, to drop off a large shipment of hard-core "boy-boy" film. Bagnell said Oklahoma was one of the few states to which he was reluctant to ship hard-core pornography by normal means 1088 and that he intended to deliver the film to Tulsa himself. Bagnell said he would accomplish this by placing the films on a flight which would be leaving within an hour of his own personal flight to Tulsa, thereby having the film shipped as luggage via the airlines in a flight other than the flight he was taking. Bagnell said that this method made it impossible for law enforcement authorities to link the film to him.• 10. Wonderful World of Video - Harry Mohney and Jerry Wade, Los Angeles, California. An indictment charging Mohney and Wade with various violations of federal obscenity laws is set for trial in 1986. 11. T.G.A. Associates - Theodore "Teddy" Gaswirth, Los Angeles, California. In September 1978, Gaswirth mentioned to the agents that there had been rumors that they were FBI agents and if they were, he would be busted sometime in the future. Gaswirth said that the rumors were diminishing in as much as various individuals in the pornography industry believed that if they were really agents some arrests would have occurred by this time. 12. Arrow Film and Video Co. (Arrow) - Louis "Butchie" Peraino, Joseph Peraino, Michael Balsamo, Vince DiStephano, and 1089 Arnie Himmels te in, New York, New York, and Los Angeles, California. Information at a sentencing hearing on January 29, 1982, and the sentencing memorandum filed in this case revealed the following: Joseph Peraino and Louis "Butchie" Peraino are non- member associates of the LCN organized crime family in New York City.1244 Louis "Butchie" Peraino, Joseph Peraino, and DeStefano are reputed to run Arrow Film and Video through the use of extortion and other strong arm tactics. DeStefano has claimed to represent the interests of several LCN family members in investments in pornographic films in Los Angeles and has claimed to have made "big money" for his New York City organized crime connections. The activities of Louis and Joseph Peraino in the pornography business were financed by the LCN organized crime family and Louis and Joseph Peraino contribute large sums of money from their business to that LCN family. In September 1980, Steve Ramirez operated a video lab, where he transferred films onto video tape as well as duplicated and distributed video tape cassettes. Ramirez said he was 1244 p. 161. See, New York Hearing, Vol. I, Christopher J. Mega, 1090 duplicating copies of the film "Deep Throat". He was approached by Louis Peraino and Vincent DiStephano who threatened him with physical harm and informed him that he was duplicating the film "Deep Throat" without their authorization. As a result of these threats, Ramirez closed his business. A substantial part of his business involved duplicating the films "Deep Throat" and "Devil in Miss Jones" for Norman Arno (S & L Distributors, Los Angeles, California). Peraino came to Ramirez because Arno had told him that Ramirez was doing the duplication. 13. J & G Sales - Michael Zaffarano, Joseph Arieno, Bobby Zeichick and Larry Mathas, Los Angeles, California. In September 1979, the agents and Arieno discussed an order for the film "Debbie Does Dallas". Arieno said that the film was owned by Michael Zaffarano (now deceased and alleged to have been a member of an LCN organized crime family) but stated that Zaffarano had given Arieno permission to distribute it. When the agent expressed doubt, Arieno said that he could call Zaffarano and verify the fact. 14. California Publishers Liquidating Corporation - Al Tapper and Ray Hind, Los Angeles, California. In April 1978, during a video taped meeting with Ray Hind, Hind discussed the pornography industry and the fact that during 1091 the previous week he had three telephone calls from "people within the industry" checking on the "legitimacy" of the agents. Hind said that his boss, Al Tapper, had personally contacted him from New Orleans, Louisiana, to inquire how long Hind had known the agents. Hind said he gave the agents a good recommendation and that everything was okay. Hind claimed to be well known within the industry and said he was personally acquainted with Teddy Rothstein and Robert DiBernardo of Star Distributors, New York City. He said he had also received calls from "their people" checking on the agents. 15. Discount Distributors, TVX Distributors and Atlanta video, Phillip "Chuck" Bernstene, Anthony "Tony" Arnone, Bill Jackmore, Los Angeles, California, Fort Lauderdale, Florida. In a tape recorded conversation in May, 1979, Beinstene said he spoke to Mickey Zaffarano regarding "Debbie Does Dallas." Bernstene said that through 2affarano and Joe "Black" Arieno, he would be in a position to distribute "Debbie Does Dallas." Bernstene said that three or four years ago, Zaffarano had placed him with S & L Distributors, (Norm Arno and Tommy Sinopoli) to insure that Sinapoli and Arno made payments to Zaffarno. Berstene said that Sinapoli, Arno and S & L Distributors were tied directly to Zaffarano. Bernstene said that during the time he was with S & L Distributors he made weekly payments to Zaffarano from Arno and S & L Distributors. 1092 In October 1979, Bernstene described Zeichick (J & G Sales, Los Angeles, California) as a "no good guy" who had "messed up" people in the past in some of his business dealings. Bernstene said Zeichick and Black were doing a good business and they were cutting into some of the customers of TVX Distributors. Bernstene said that this was hurting TVX and other distri- butors but he could not put pressure on Zeichick or Black due to their close relationship with Zaffarano. Bernstene said Zaffarano had just recently given the movie "Autobiography of a Flea" to Andre D'Apice (Star Distributors/KED New York City) to have as his movie. Bernstene said that if law enforcement officials and the IRS became aware of how much money Zaffarano made off his hard core movies, they could blow the lid off his operation. Bernstene said it was like when "Deep Throat" and "The Devil in Miss Jones" were playing all around the country in 1972. If it were known how much money was actually made on these movies, a lot of people would have problems. In October 1979, Bernstene said that Walter Gernert would be coming to Las Vegas. Bernstene said that he was going to Vegas to "pay the juice". Berstene said the loan was for eight millimeter films which VJalter Gernert was involved with. Bernstene said that Angelo and Tony Farese recently came into the offices of TVX Distributors and advised him and his partner, Dave Friedman that they now controlled the movies "Deep Throat" and "Devil in Miss Jones" and that a fee of $10.00 per 1093 video tape cassette of these movies should be paid directly to the Fareses. Bernstene said that the Fareses advised him and Friedman that the Perainos no longer control the movies "Deep Throat" and "Devil in Miss Jones" and that the Fareses now controlled these movies. On November 6, 1979, Bernstene said that when Michael Wisotsky was dealing with Arno, Wisotsky was doing business in the range of $15,000 to $20,000 a month. During that time Wisotsky told Bernstene that the agents were working for the "Feds." Wisotsky told him that he had gotten this information from Andre D'Apice. 16. Central Sales - Lou Guglielmi, Baltimore, Maryland. On December 20, 1978, the agents met with Guglielmi, the owner of Central Sales. Guglielmi said he had over one million dollars in projectors in the basement of Central Sales and said this was a large part of his business. Guglielmi told the agents he was part owner of Miami Books in Miami, Florida, along with Star Distributors of New York City. Guglielmi said he had a lot of heavy contacts in the Miami, Florida, area and said that Bob Inman had sold out to him and then tried to steal some of his customers away. Guglielmi said that he does not take an individual like this to court to settle the matter. He said he takes it into his own hands and makes one phone call to Florida and "within ten minutes, turns a boy into a 1094 man. " 17. National Film Company - Rubin Gottesman, Barbara Gottesman, Los Angeles, California. m In February 1979, the agents met with Rubin Gottesman and his wife Barbara Gottesman. Rubin Gottesman said he had been with Norman Arno (S & L Distributors) the previous evening and that Arno had showed him a video tape of the movie "Debbie Does Dallas." Gottesman said Arno told him that he had received the video rights to that movie from Mickey Zat'farno, the owner of the movie. Gottesman said Zaffarano had given Arno the national distribution rights for this movie and that Arno now had it available on video. When the agents asked to obtain a print of this movie for themselves Gottesman said he would not even consider doing this because he wanted to remain healthy. Gottesman said Zaffarano would not hesitate to use muscle if he believed someone was bootlegging his movies. On March 23, 1978 Rubin Gottesman told the agents that in the past an individual was believed to be copying and distri- buting various hard-core movies. He said organized crime people had put money into these films and that this individual was "hit in the head." Gottesman said that should the agents begin duplicating movies such as "Deep Throat" and "The Devil in Miss Jones", they would have to be prepared to take the heat. In June 1979, Gottesman said he had gotten two movies from 1095 158-315 Vol. 2, O - 86 - 3 Joe Peraino (Arrow Films, New York and California), "Johanna" and "The Devil Inside of Me." Gottesman said both of these were Joe Peraino's movies and that he was paying Joe Peraino $300 each for the prints. 18. Bon Jay Sales, Inc. Jack Gresser, Ron Selinger, John Moon, Alan Swartz, Baltimore, Maryland. On May 17, 1978, the agents went into Bon Jay Sales, Inc. There was a discussion about two pimps who worked the east coast for Jack Gresser. These pimps obtained the girls for Gresser's bookstores and massage parlor operations in the Baltimore and Washington, D.C., areas. On May 24, 1978, an employee of Bon Jay Sales, Alan Swartz, said girls could be provided to the agents on their next trip to Bon Jay Sales and that another individual at Bon Jay Sales handled the procurement of girls for customers. On August 10, 1978, in a telephone conversation with Jack Gresser, Gresser said that there had been rumors about the agents and he had been advised to stay away from them. 19. M and M Video Systems, Inc., Mickey Manos, Houston, Texas. In July, 1979, Special Agent Bruce Ellavsky spoke to Manos about "boy-boy" (homosexual) films. Manos said that most of his business was in Tennessee and Alabama. Manos said he had a 1096 o $300,000 lab when he does a lot of reproduction. He claimed to be the biggest in the videotape business outside California, Chicago and New York. 20. Alvin Nunes, Honolulu, Hawaii. On December 1, 1978, Chuck Bernstene told an agent that he had access to pirated major motion pictures through a contact of his in Honolulu, Hawaii, by the name of Al Nunes. Berstene then called Nunes and made arrangements with him to meet the agent in Hawaii. Bob Courchese told the agent he had difficulties with the bookstore he had recently opened. He said he had pinball machines in the store and he had gotten pressure and muscle from the "boys" on the island. He said they had demanded a split of 70/30% with 70% going to them. Courchese said he could not live with the split and gave up the store. Courchese said he was still employed by Nunes, both at Nunes1 bar and doing whatever else Nunes requested of him. Nunes gave the agent a bestiality film and said he would ship child pornography to Miami, which he subsequently did. A separate case in the Southern District involved Michael Wisotsky, Myron Wisotsky, Robert Barkow and Donald Work1245 - Dade, Broward, and Palm Beach Counties, Florida. The pornography business operated by Michael Wisotsky and 1245 United States v. Wisotsky, et al. 83-741-cr EBD (S.D.Fla.). 1097 ( i his uncle Myron is the most significant one south of Atlanta, Georgia. They are considered to be key figures and upper echelon distributors of hard core pornography. At the time of the indictment in this case in 1983, Michael and Myron Wisotsky (referred to hereinafter as the Wisotskys) controlled between five hundred and seven hundred peep show machines in Southeast Florida. These machines were located in adult bookstores owned by corporations the Wisotkys controlled, as well as in indepen- dently owned bookstores. In 1983, the Wisotskys owned and controlled approximately two million dollar worth of assets through the use of nominees and sham corporations. The true ownership of these corporations was hidden to avoid the possibility of criminal prosecution. Documents show that over the course of ten years, the Hisotskys used the names of unknowing nominees to register their corporations and caused their accountants and others to falsely subscribe these names to documents which were then mailed to the state and federal government. The investigation in this case revealed the Wisotskys owned or controlled over forty corporations. Of these, the fifteen most actively involved in the adult bookstore business were not registered under the name of either Michael or Myron Wisotsky. When the investigation of the Wisotskys commenced, they immediately took an active role in attempting to thwart the Grand Jury investigation conducted by the Internal Revenue Service and the Miami Strike Force. 1098 Unbeknownst to the Internal Revenue Service and the Miami Strike Force, the Fort Lauderdale Police Department was engaged in an undercover operation involving the Wisotskys during this same period of time. The Fort Lauderdale Police had placed an undercover detective in the Wisotsky organization. The prospect that the detective would be served with a federal grand jury subpoena caused the Fort Lauderdale Police to reveal his identity to Federal authorities and cooperation began between the two agencies. Donald Work had been the Wisotskys' key man for a number of years. One of Work's duties was to oversee and manage the peep machine operation for the Wisotskys. Numerous bookstore owners and clerks were subpoenaed to the testify before Grand Jury and each of them asserted their Fifth Amendment privilege when asked about the Wisotskys1 operation. For a number of years, law enforcement agents attempted to locate the Braccos - a couple whose name appeared on many of the Wisotsky corporations. In March 1981, Special Agent Donald Burde of the Internal Revenue Service located them. They never had any business connections with the Wisotskys and had never heard of the corporations on whose papers their names appeared. They were in fact unknowing nominees whose names were used by the Wisotskys. After they were subpoenaed to the federal grand jury, Robert Barkow called Mrs. Bracco and said, "My people know they have wronged you they are sorry about it. They want to make up for it. Contact any of these three attorneys, they're waiting 1099 for your call. I will give you their names. We will put you up in the best hotels and consider it a vacation. My people have been wrong, they know they've wronged. You'll be well compensated for it. Take the corporations you're a rich person. The Wisotskys were not content with attempting to prevent individuals from testifying against them before the Grand Jury. On August 25, 1981, Special Agent Donald Burde received a telephone call from the Wisotsky's accountant who requested Burde come to his office, "alone and unwired." During that one-on-one meeting, the accountant offered Burde a $25,000 bribe on behalf of the Wisotskys to kill the criminal tax investigation he was conducting about them. The evidence in this investigation revealed that the Wisotskys failed to report substantial amounts of income skimmed from the vast peep machine operation they controlled since April 1976. At this writing, the Miami Strike Force of the United States Department of Justice's Organized Crime and Racketeering Section remains actively involved in the prosecution of individuals charged with violations of federal law as a result of MIPORN. The most recent prosecution resulted in the conviction of Norman Arno on charges of conspiracy and interstate transportation of obscene material. Arno was sentenced to five years in prison and ordered to pay a $30,000 fine. The MIPORN investigation has yielded substantial evidence of organized crime involvement in the nationwide distribution of pornographic material, and serves as an example of effective utilization of law enforcement resources to combat the trade in • obscenity. 1100 1101 APPENDIX TWO MAGLOCLEN MAGLOCLEN is one of six federally funded Regional Information Sharing Systems (RISS program). These systems are administered by the Bureau of Justice Assistance, United States Department of Justice, and received nine point nine million dollars ($9,900,000) from Congress to fund fiscal 1986 operations. These systems cover the nation, providing support services to local, state, provincial and federal agencies investigating major criminal conspiracies. They serve over one hundred fifty thousand sworn employees in about two thousand departments. Through 1984, the projects supported cases which resulted in the seizure or recovery of nearly two billion dollars ($2,000,000,000) worth of narcotics, currency and other property. MAGLOCLEN and its sister projects provide services to their members including access to a computerized data base on major criminals, training, investigative equipment on loan, funding for undercover operations, publications, referrals and the analysis of criminal information. It is within the context of the latter service -- the analysis of criminal information — that I appear before you today. One of my responsibilities at MAGLOCLEN is the work of the Analytical Unit. I developed that unit and have been responsible for its output since June of 1981. In that capacity, I supervise analytical work, complete selected analytical products each year and provide both basic and advanced analytical training to law enforcement officers through- out our region. In addition, I am currently co-editing the first textbook on analysis, which will be published during 1986. And, I am a Director of the International Association of Law Enforcement Intelligence Analysts, otherwise known as IALEIA, the profes- sional organization for analysts. That organization recognized MAGLOCLEN's work during 1985 as making the "most significant progress in utilizing intelligence analytical techniques in support of law enforcement objectives." Law enforcement analysis is the compilation, summarization « and presentation of criminal data in a form which can be under- stood by non-analysts. The products of such an analysis can include written reports, charts, matrices and listings which accurately convey the data and from which the meaning of the data can be derived. MAGLOCLEN chose pornography as one of its six criminal targets when it first began, in 1981. From the onset, we were interested in the white collar crime potential which the pornography industry affords to its participants. There were several reasons we thought white collar crime might be in evidence. Pornography and sexual aids are sold primarily for cash. Goods are sold at an enormous markup over production costs. The market for these products is large, yet relatively covert. Under these circumstances, it appeared to us 1102 1103 -.-.at there was an atmosphere conducive to profit skimming, monopolization, using paper corporate fronts to hide actual interests, and tax evasion. Subsequent indictments alleged all of these, and more, as being perpetrated in one conspiracy which was headed by Reuben Sturman. The analytical report titled "REUBEN STURMAN1S PORNOGRAPHY EMPIRE" included four charts; a written summary and a listing of all individuals and entities included in the charts. This work was completed in September of 1985 at the request of the Cleveland Police Department. The report utilizes information provided by law enforcement agencies in the form of investigative reports, published documents and legal filings. It should be noted that HAGLOCLEN and the other RISS projects do not investigate cases in an operational manner, but gather data from line police agencies to perform information sharing and analytical services. The efforts of the Internal Revenue Service and many other local and federal agencies must be commended. The paper trails and documents which they had to follow to complete such a case required a tremendous effort. This analysis updated previous work done by MAGLOCLEN in 1984. The new material combined with previously held data ,as the indictment of Sturman in the case U. S. VS REUBEN STURMAN, filed June 27,. 1985 and investigative data provided by agencies. In summary, it has been alleged that Sturman has financial control of nearly two hundred businesses in nineteen states, one 1104 Canadian province and six foreign countries. That data has been transposed on to three charts which, if I may, I would like to briefly explain. The first two charts relate to Sturman1s associations with businesses and individuals. The first chart is entitled "STURMAN ASSOCIATES". Associates are defined as either business associates, indicted or non-indicted co-conspirators, or both. Sixty-five individuals are named in this chart as being associates of Reuben Sturman. Nearly ninety percent of these individuals have been named in a lawsuit with Sturman. Eight were named in suits against Sturman in both 1982 and 1985. The primary associates appear on the left side of the chart. They include Ronald Braverman, James Olsafsky, Melvin Kaminsky, Marjorie Rollins, Scott A. Dormen, Paula Lawrence, Ralph L. Levine, Edward Seltzer and David Sturman. The second chart shows "STURMAN BUSINESS ASSOCIATIONS." It breaks down one hundred and ninety six businesses into eight categories and shows their association to Sturman. Those categories include: Companies controlled by MAGCORP, Sturman's primary company (nine companies) • - Companies Sturman owned through unidentified nominees (four companies) Companies Sturman owned through BLACK SHIELD, INC. as his nominee (six companies) Foreign corporations used as fronts for Sturman 1105 business activities (seventeen companies) Companies Sturman owned or controlled through WILSON & CO. as owner or shares nominee (one hundred companies) Businesses owned by Sturman in which he had or has a financial interest (sixteen companies) Foreign corporations used as fronts for specific Sturman U.S. companies (ten foreign and ten U.S. companies) Businesses that were co-defendants in a 1982 lawsuit which claimed they were controlled by him (twenty four companies) These companies stretch, geographically, from Massachusetts to California, from Michigan to Florida. The states which include the most known Sturman-associated businesses are: Ohio - 35 businesses California - 24 businesses Illinois - 15 businesses Pennsylvania - 14 businesses Michigan - 13 businesses Maryland - 11 businesses New Jersey - 10'businesses These seven states account for sixty-two percent, or almost two-thirds, of all known locations of Sturman businesses. Outside of the United States, Sturman related businesses have been found in the province of Ontario, in Canada (which is 1106 also, by the way, part of MAGLOCLEN's network), in Great Britain, Panama, Liberia, the Netherlands, and Lichtenstein. A sixth foreign country, Switzerland, enters the picture through bank accounts established for several Sturman associates and some of these foreign corporations in Swiss banks. Chart three shows "TRANSFERS AMONG BUSINESSES ASSOCIATED WITH REUBEN STURMAN." To the left on this chart, financial transactions are depicted involving INTERNATIONAL BANCORPEST, UNITED CALIFORNIA BANK offices in New York and London. On June 22, 1978 GLOBAL FILM DISTRIBUTORS ESTABLISHMENT, a Lichtenstein company, transferred fifty thousand dollars ($50,000) to a BANCORPEST office in New York. The following day, SICORAN ESTABLISHMENT, another Lichtenstein corporation, transferred fifty nine thousand four hundred dollars ($59,400) to the New York office of BANCORPEST. Two weeks later, on July 2, a check was written from BANCORPEST to NORTHERN PROPERTIES in the amount of fifty nine thousand three hundred dollars ($59,300). NORTHERN PROPERTIES is a Cleveland, Ohio, company alleged to be owned by WILSON & COMPANY as nominee for Sturman. The president of the company was Charles King and the vice president was Marjorie Rollins, long- time personal secretary to Sturman. On July 28, 1978, NORTHERN PROPERTIES paid sixty-three housand eight hundred dollars ($83,800) to the Cleveland Federal avings bank for the purchase of 3021 Attleboro Road, Shaker 1107 Heights Ohio, the personal residence of Reuben Sturman. NORTHERN PROPERTIES and Sturman further executed a mortgage for one hundred and thirty thousand dollars ($130,000) for the property also on that date. Between September 1975 and July of 1978, Sturman associates deposited three hundred and eleven thousand dollars ($31,000) in cash into the INTERNATIONAL BANCORPEST, UNITED CALIFORNIA BANK office in London, England. Ronald Braverman, using the name of "John Hastings," delivered ninety five thousand dollars ($95,000) in U.S. currency to this bank on September 30, 1975. On May 8, 1978, he used the name "John Hayes" and delivered eighteen thousand dollars ($18,000) in currency to this branch of the bank. Edward Seltzer, another Sturman associate, was also a courier. Using the name "Morton Weiss," Seltzer delivered one hundred fifteen thousand'dollars ($115,000) in currency to the i London office of the UNITED CALIFORNIA BANK on April 5, 1978. And, on July 19 of that year, using the name of "Ralph Seltzer," he delivered eighty three thousand dollars ($83,000) in currency to the bank branch. In total, four hundred twenty thousand and four hundred dollars ($420,400) was shown as transferred or deposited into this bank by Sturman associates. During 1977, NORTHERN PROPERTIES was again used to purchase property for the Sturmans. On April 1, 1977, David Sturman and NORTHERN agreed to buy a single family home at 12908 Westchester Trail, Chesterland, Ohio, for ninety three thousand dollars 1108 J ($93,000). On April 27, 1977, NORTHERN, Reuben Sturman and David Sturman executed a mortgage note for the amount of fifty thousand dollars ($50,000), presumably for the house on Westchester Trail. On June 17, 1977, forty three thousand four hundred and fifty dollars ($43,450) was wire transferred from FABRICORA ESTABLISHMENT, alleged to be a Sturman corporate front, to NORTHERN PROPERTIES. FABRICORA is a Panama corporation begun in 1975 by Swiss attorney Jorg Haemmerli. FABRICORA was also used, it is seen on the chart, to transfer funds into a United Kingdom corporation, STONEREALM, LTD. On August 9, 1979, FABRICORA transferred eighty thousand dollars ($80,000) to STONEREALM. STONEREALM was incorporated on May 10, 1975. Less than one month later, Ronald Braverman, long time employee and associate of Reubenn Sturman, applied to transfer a total of fifty thousand pounds (L50,000) into STONEREALM. Forty five thousand (45,000) was to be a loan and five thousand pounds (L5,000) was listed as an investment. STONEREALM's 1977 corporate filing showed Braverman as owning fifty percent of the company's stock. STONEREALM also received financial support from a third Sturman related source — the Societe Financiere et Commerciale, S.A., a Liberian corporation. On December 5, 1978, the Societe transferred sixty thousand dollars ($80,000) to Barclay's Bank in London for credit to STONEREALM1s account. And later, on April 1109 17, 1980, Reuben Sturman, using the alias of "Robert Stern," issued a check to STONEREALM from the SOCIETE for fifty five thousand dollars ($55,000). In total, the indictment documented STONEREALM1s receipt of one hundred ninety five thousand dollars ($195,000) plus fifty thousand pounds (L50,000) from Sturman related entities. The SOCIETE FINANCIERS ET COMMERCIALS was incorporated in 1978 by three individuals who then transferred their shares of stock to David A. Sturman, Reuben Sturman's son and business associate. When the corporation's Swiss bank account was opened, David A. Sturman, Ronald Braverman and "Robert Stern" (Reuben Sturman) were signators. On August 28, 1979, a five hundred thousand dollar ($500,000) check from the Weissbard & Fields Trust account in Washington, D.C. was deposited into the SOCIETE account. On September 12, 1979, two cashier's checks written on the Superior Savings Association in Cleveland totalling one hundred and nine thousand dollars ($109,000) were deposited in the Swiss •SOCIETE account. Between November 8, 1980, and January 7, 1981, seven checks totalling thirty five thousand dollars ($35,000) and signed by "Robert Stern" were deposited into the account. Most were written on accounts in two Ohio savings banks. The total of deposits shown as going to the SOCIETE account were six hundred forty four thousand dollars ($644,000). On the debit side, in addition to its support of Braverman's 1110 o STONEREALM, SOCIETE funneled dollars to several businesses including MARCHE MANUFACTURING in North Hollywood, California. MARCHE, also known as DOC JOHNSON'S or LOVELAY CO., specializes in sexual paraphernalia. It was named as a co-defendant in the 1982 lawsuit against Sturman and his companies. A check for fifty thousand dollars ($50,000) was written on the SOCIETE account for MARCHE on September 7, 1978. The SOCIETE's Swiss account also showed six transfers of funds to "JOE P. ENTERPRISES" totalling four hundred thousand dollars ($400,000). These transfers occurred between June 15, 1981 and March 12, 1982. The location and identity of JOE P. ENTERPRISES was not revealed in the indictment. This company, however, also received a check for fifty thousand dollars ($50,000) from MASGRO FILM INTERNATIONAL on October 7, 1981. MASGRO is a Panamanian company incorporated during 1975. Additionally, on September 8, 1981, "Robert Stern" signed two checks totalling nineteen thousand nine hundred and ninety seven dollars ($19,997) which were deposited in the MASGRO Swiss bank account. The inference which can be drawn from these transfers is that there was an intent to cover audit trails, launder funds and hide participation by Sturman and his cohorts in various transactions and companies. Yet these examples form only a portion of the questionable activities uncovered to date by local, state and federal investigators in relation to Sturman corporations. The IRS > 1111 alleges that for the five years between 1978 and 1982, Sturman had a personal income of three million three hundred ninety nine thousand seven hundred and thirty four dollars ($3,399,734), or an average income of six hundred seventy nine thousand, nine hundred and forty six dollars and eighty cents ($879,948.80) per year. Over that same period, he claimed an income of only three hundred sixty three thousand six hundred and nine dollars ($383,809), which represents about ten point five percent (10.5%) of his total income as uncovered by IRS. During those years, he paid one hundred thirty seven thousand seven hundred and forty five dollars ($137,745) in income taxes. The IRS contends that he evaded over one point six million dollars ($1,600,000) in taxes. And, this figure could well be just the tip of the iceberg. If his personal taxes were underreported, what of his corporate tax liabilities for dozens of businesses? Indeed, it may take a platoon of investigators, analysts and accountants to find the "bottom line' in Sturman's business dealings. But the Sturman case has import beyond his personal empire or his tax bill. Through his manipulations, we can see how white collar crime can work in the pornography industry and in other settings. The analytical product "REUBEN STURMAN'S PORNOGRAPHY EMPIRE" was not completed to merely summarize a complicated case. It was done to show law enforcement investigators what types of white 1112 collar criminal activity has occurred and may recur. Further, it was done to disseminate to law enforcement agencies the identification data of individuals and entities included in the analysis. By having this data, law enforcement agencies may be able to ascertain the connections between their local pornography industry and this massive conspiracy. Analysis and information sharing are the bases of the RISS projects. We believe that collecting, compiling, analyzing and sharing this type of information will make law enforcement, nationwide, more effective in their anti-crime efforts. Our projects were designed and funded to do this work and, with the support of the Congress, we will continue to do so. Again, we thank you for the opportunity to testify at these • hearings. 1113 o APPENDIX THREE THE ANNUAL REPORT TO THE LEGISLATURE ORGANIZED CRIME IN CALIFORNIA 1984 JOHN K. VAN DE KAMP, ATTORNEY GENERAL CALIFORNIA DEPARTMENT OF JUSTICE 4949 BROADWAY SACREMENTO, CALIFORNIA PORNOGRAPHY In early 1970, elements of the Colombo, Bonanno, Gambino, and DeCavalcante crime families moved from the East an^ established pornography operations in California. During the mid-1970's, they engaged in extortion ano , violence in an attempt to gain control over independent pornographers in California. The Southern California Crime Family was also involved in this activity (see FOREX, page 25). Organized crime elements are now established in national distribution and are involved in most aspects of the pornography business. They continue to exert much influence over the pornography operation in California through hidden interests in this industry. The arrival of home video cassette recorders on the market in 1979 was accompanied by a growing demand for adult video tapes. California pornographers, linked to Gambino, DeCavalcante, Luchese, and Colombo organized crime families, have entered this market through companies that produce, duplicate, distribute, and sell adult video tapes. 1114 1115 I APPENDIX FOUR ORGANIZED CRIME'S INVOLVEMENT IN THE PORNOGRAPHY INDUSTRY REPORT PREPARED BY: INVESTIGATIVE SERVICES DIVISION METROPOLITAN POLICE DEPARTMENT WASHINGTON, D.C. NOVEMBER, 1978 INTRODUCED INTO THE RECORD OF HEARINGS BEFORE: NEW YORK SELECT COMMITTEE ON CRIME 1001 STATE OFFICE BUILDING 270 BROADWAY NEW YORK, NEW YORK 10007 JULY 26, 1982 1116 CONTENTS I. FOREWORD II. PREVIOUS AND CURRENT LAWS EFFECTING U.S. PORNOGRAPHY III. PORNOGRAPHY INVESTIGATION A. PRODUCTION/DISTRIBUTION 1. NATIONAL DISTRIBUTION (CHART A) 2. CALIFORNIA PRODUCTION/DISTRIBUTION (CHART B) B. INDIVIDUAL CORPORATE ORGANIZATIONAL PROFILES 1. CORPORATE ORGANIZATIONAL PROFILE #1 (CHART C) 2. CORPORATE ORGANIZATIONAL PROFILE #2 (CHART D) 3. CORPORATE ORGANIZATIONAL PROFILE #3 (CHART E) 4. CORPORATE ORGANIZATIONAL PROFILE #4 (CHART P) 5. CORPORATE ORGANIZATIONAL PROFILE #5 (CHART G) 6. CORPORATE ORGANIZATIONAL PROFILE #6 (CHART H) 7. SYNOPSIS (CHART I LINKS CHARTS C THRU H) 8. CORPORATE ORGANIZATIONAL PROFILE #7 (CHART J) 9. CORPORATE ORGANIZATIONAL PROFILE #8 (CHART K) 10. SYNOPSIS (CHART L LINKS CHARTS J & K) 11. CORPORATE ORGANIZATIONAL PROFILE #9 (CHART M) 12. SYNOPSIS (CHART N LINKS CHARTS C THRU M) IV. ORGANIZED CRIME INVOLVEMENT (OTHER THAN CORPORATE ORGANIZATIONAL PROFILES) A. CORPORATE ORGANIZATIONAL PROFILE #10 (CHART 0) B. SYNOPSIS (CHART P) V. CONCLUSION VI. RECOMMENDATIONS 1117 VII. APPENDIX 1118 This report constitutes a continuing law enforcement investigation. It is not to be distributed or disseminated unless express permission is first obtained from the respective agency(s). It is further directed that this report be safeguarded as with any other sensitive investigative file. This report has only been furnished to those agencies involved who have contributed to the information gathered. 1119 I. FOREWORD In March, 1977, a meeting of the Combined Law Enforcement Intelligence Group (CLEIG) determined that there was a critical need for law enforcement agencies to discuss the growing nationwide problem of the pornography industry and to determine the extent to which organized crime controlled or influenced the industry. As a result of this meeting, the Metropolitan Police Department, Washington, D.C., hosted a conference on June 30, 1977, to examine this problem. The following goals were established by the conference's participants: 1. Identify the major producers and/or distri- butors of pornographic material. 2. Identify organized crime figures who are involved in the potnography industry. 3. Establish liaison between local, state and federal law enforcement.agencies for the exchange of information concerning organized crime end the pornography industry. 4. Establish a central point where all infor- mation will be forwarded for correlation, analysis and eventual dissemination to all participating agencies. Each participant supplied documented information on porno- graphy operations in their respective jurisdiction. This 1120 material identified the major producers and/or distributors of pornographic material and their corporate structures. This information provides an in-depth picture of pornography operations from the national to the local level. Since the pornography industry is constantly undergoing corporate changes, the contents of this report are to be regarded as investigative leads. Corrections and updating of the material should be completed by the recipient agency. Although the information was collated and analyzed by the Organized Crime Branch, Metropolitan Police Department, Washington, D.C., this report obviously would not have been possible without the cooperation of the following law enforcement agencies: ARIZONA: Phoenix Police Department, Phoenix CALIFORNIA: California Department of Justice, Sacramento Los Angeles County Sheriff's Department San Francisco Police Department, San Francisco CANADA: Royal Canadian Mounted Police DELAWARE: Delaware State Police, Odessa DISTRICT OF COLUMBIA: Alcohol, Tobacco & Firearms, Washington Field Office Federal Bureau of Investigation, Washington Field Office Internal Revenue Service, Washington, D.C. Metropolitan Police Department, Washington, D.C. United States Attorney's Office, Washington, D.C. United States Customs, Washington, D.C. United States Department of Justice, Washington, D.C. United States Postal Service, Washington, D.C. FLORIDA: Dade County Public Safety Department, Miami Florida Department of Criminal Law Enforcement, * Tallahassee Fort Lauderdale Police Department, Fort Lauderdale Tampa Police Department, Tampa 1121 Titusville Police Department, Titusville GEORGIA:Athens Police Department, Athens Atlanta Police Department, Atlanta Columbus Police Department, Columbus Georgia Bureau of Investigation, Atlanta LOUISIANA:New Orleans Police Department, New Orleans MARYLAND:Anne Arundel County Police Department, Millersville Baltimore City Police Department, Baltimore Howard County Police Department, Annapolis Maryland State Police, Pikesville Montgomery County Police Department, Rockville Ocean City Police Department, Ocean City Prince George's County Police Department, Forestville MASSACHUSETTS:Boston Police Department, Boston Massachusetts State Police, Boston Springfield Police Department, Springfield MICHIGAN:Lansing Police Department, LansingMichigan Department Of the Attorney General, Lansing Wayne County Sheriff's Department, Detroit MINNESOTA: ;Minneapolis Police Department, Minneapolis MISSOURI:Saint Louis Metropolitan Police, St. Louis NEW HAMPSHIRE:Manchester Police Department, Manchester NEW JERSEY ;New Jersey State Commission of Investigation, Trenton New Jersey State Police, West Trenton NEW YORK: Buffalo Police Department, Buffalo New York City Police Department, New York City New York State Police, Albany New York State Select Committee on Crime, New York City NORTH CAROLINA:Fayettesville Police Department, Fayettesville Greensboro Police Department, Greensboro North Carolina State Bureau of Investigation, Raleigh OHIO:Cleveland Police Department, Cleveland Dayton Police Department, Dayton PENNSYLVANIA:Pennsylvania Crime Commission, Harrisburg Pennsylvania State Police, Harrisburg Philadelphia Police Department, Philadelphia VIRGINIA:Alexandria Police Department, Alexandria Arlington County Police Department, Arlington Fairfax County Police Department, Fairfax 1122 Richmond Police Department, Richmond Virginia State Police, Richmond WASHINGTON: Seattle Police Department, Seattle Washington State Patrol, Seattle During the course of this investigation, efforts of the contributing law enforcement agencies have led to the identi- fication of nationwide pornography distributors. The following pages will depict the national distribution flow of pornographic material, the major distributors at the interstate level and the corporate organizational profiles of these major distributors. Information has been derived from corporate records, occupancy permits, retail sales applications, state taxation assessments, etc. Also included are past indictments and/or convictions of individuals involved in the pornography industry. II. PREVIOUS AND CURRENT LAWS EFFECTING U.S. PORNOGRAPHY Before addressing the current status of court rulings involving the issue of pornography, it is necessary to provide a brief background regarding the philosophical and historical evolution of our present law. It should be pointed out that this portion of the report is designed to provide a workable insight for the average law enforcement officer into the historical development of laws governing pornography. The crime of creating or distributing "obscene" sexual materials is of relatively recent origin in American law. Royal censorship began in England in 1531 through a licensing system 1123 under secular authority with ecclesiastics as licensers established by Henry VIII. English censorship at that time was not directed toward sexual content? but rather, it was directed against seditious and heretical works. There was a brief period between 1605 and 1660 in which the strong influence of Puritanism in England led to authorization of proceedings against the use of profanity by actors on stage. However, after the Restoration in 1660, licensing was again limited to suppressing sedition and heresy in printed works. The first case which demonstrated that the common law courts would, even in the absence of a statute, penalize conduct which is grossly offensive to the public occurred in 1663 in the case of King v. Sedley. Sir Charles Sedley and two friends became drunk at a tavern. They climbed to the balcony of the tavern and removed their clothes. Sedley gave a speech which included profanities. He also poured bottles of urine on his audience and a riot ensued. Although the case did not concern the distri- bution of sexual materials, it involved both a physical assault upon others and the public broadcasting of profanity and nudity upon unwilling recipients. Sedley was given a substantial fine and committed to jail for a week. This case was subsequently deemed an obscenity case when the issues involved were later cited in rulings concerning obscenity. In 1695, when the Licensing Act expired, Parliament declined to renew it. This apparently was not because Parliament disapproved of the practice of licensing; but rather because it 1124 considered the act unenforceable. The end of the licensing system made it likely that some new legal controls over writings would develop, at least for areas such as libel which were suddenly, for the most part, unregulated. Though the licensers had not directed their attention toward obscenity, the existence of a licensing plan probably had some inhibiting effect on pornographic publications. In any case, the demise of the system, coupled with the spread of literacy and the increased popularity of reading, gradually led to a new class of writers. The upper classes became concerned about the possible effects of these writings. It is in this setting that the effort was made to control obscenity through the common law courts. 1 In 1708, in the case of Queen v. Read, a prosecution was instituted against a book entitled "The Fifteen Plagues of a Maidenhead". Read was acquitted when the court ruled "a crime that shakes religion, as profaneness on the stage, etc., is indictable; but writing an obscene book, as that entitled, "The Fifteen Plagues of a Maidenhead', is not indictable, but punishable only in the spiritual court". This case asserted that obscenity, if it was an offense at all, was within the exclusive jurisdiction of the ecclesiastical courts. It was not an offense at common law and all penalties imposed were spiritual ones. Not only obscenity but sex offenses in general had traditionally been under the exclusive jurisdiction of the ecclesiastical courts. Adultery and fornication, which were forbidden by the Bible, were civilly punished for the first time ' 1125 under the theocratic government of Cromwell, but during the Restoration they again fell under the exclusive control of the ecclesiastical authorities. The next case of significance was the 1727 Curl case. Edmund Curl was prosecuted for "obscene libel" for publishing a book entitled "Venus in Cloister" or "The Nun in her Smock". The judges were troubled by the Read decision and by the fact that common law had not recognized as crimes acts which did not outright attack the church, government or tend to a breach of the peace. Curl's book, while not in direct violation of these issues, did cause an embarrassment of the Church by discussing — -u« Doad sex oi its neirosrs.Counsel for Curl attenotei to use the Read case to have the indictment quashed; but the Attorney General, while admitting the lack of precedent for his position, argued that acts should be considered disruptive of the King's peace and therefore forbidden by common law. The government argued that acts which corrupt the morality of the public at large are "against the peace of the King's" even though acts of immorality that effect only individuals, such as fornication, are not public offenses punishable by common law. The court found precedent for the conviction of Curl in the Sedley case by saying that Sedley was not distinguishable because of the showering of the public with urine and because of the violence which had provoked. The court reasoned that the more important part of Sedley 's offense was his nakedness. The court held it to be an offense properly within its jurisdiction, for it 1126 said that religion was part of common law; and therefore, whatever is an offense against religion is evidently an offense against common law. They reasoned that morality is the fundamental part of religion; and therefore, whatever strikes against religion must for the same reason be an offense against common law. The Taylor case, cited as an authority for the proposition that offenses against morality are common law offenses, was a case where the defendant had been convicted for calling Christ a bastard and a whoremonger and because he called religion a cheat. Curl's case established that a person could be punished by :o=jcn la--- as a violator of tr.e sing's peace talt'-ou^n no force or threat of violence was involved in the action). As illus- trated earlier, the law before Curl punished authors of publica- tions that were seditious or heretical or which tended to provoke an actual breach of peace. Curl added to the category of punishable works those which directly discredited established religion or its servants in written form. Eighteenth century legal writers treated the offense of obscene libel created by Curl as an offense against God. The obscenity cases which followed Curl similarly limited themselves to sexual material in the context of anti-religious works. In fact, material often referred to today as hardcore pornography circulated quite freely, because of the lack of anti-religious content. A final case that sheds some light on the development of 1127 158-315 Vol. 2, O - 86 - 4 o common law offense of obscenity is the 1809 case of Rex v. Crunden. In that case the defendant was charged with bathing nude in the sight of homes. The court found the defendant guilty of the crime charged but freed him since this was "the first prosecution of this sort in modern times". Until then, immorality and immodesty, apart from anti-religious behavior or seditious behavior or behavior provoking violence, had not been punished. During this period "guardians" of public morals made their appearance and stimulated governments to suppress obscene writings. It was within this framework that the Society for the Suppression of Vice was founded in England in 1802. During the 19th century obscenity laws were given content in England. Near the beginning of the century, common law had to a point where it was being applied to prohibit purely sexual works which did not attack or libel religious institutions. This practice led to the first obscenity legislation in England and was incorporated in Vagrancy Act of 1824. The act prohibited exposing an obscene book or print in public places. In 1857 the Lord Campbell's Act was passed and it prohibited the dissemination of obscenity. This act permitted attacks on material that currently was considered to have a literary value. A definition of obscenity was formulated in 1868 in Queen v. Hicklin. The case involved an anti-religious pamphlet entitled "The Confessional Unmasked", showing the depravity of the Roman priesthood, the iniquity of the confessional and the questions 1128 put to females in confession. A local magistrate, Justice Benjamin Hicklin, ordered the pamphlet seized and destroyed; although about half of the pamphlet was argumentative and not obscene. In Magistrate Hicklin's view, the publication discussed intercourse and fellatio among other topics. Therefore, it rendered the entire work taboo. Although Hicklin's action was reversed by an intermediate court, but the case was appealed, and in 1868 the Chief Justice, Sir Alexander Cockburn, reinstated Hicklin's orders. In doing so, a test of obscenity was framed in law. The test of obscenity laid down by the court did not, however, limit itself to the anti-religious aspect; instead, a general test of obscenity was adopted. Chief Justice Cockburn did not base the existence of obscenity on the intention of the authors. Instead, he said that the test of obscenity was whether the tendency of the matter charged as obscenity was to deprave and corrupt minds which are open to such immoral influences and into whose hands the publication may fall. The test of morality was what a father could read aloud in his own home. There were many successful prosecutions of pornography and the law was also invoked against works of literary merit and works with a social or moral purpose. In addition to prosecutions, other sanctions were also used. (Seizure of books by the post office, customs officials, or police; and their subsequent destruction). The law was subject to continuous attack, because for it was 1129 felt that it often compelled authors to falsify social realities. The law was also attacked for reducing literary standards to the level of what was morally proper for the young. The application of the law by judges in specific cases was also attacked, because judges permitted prosecutions on the basis of isolated passages. Judges also refused to permit evidence of the author's intent or purpose or his literary reputation, or testimony of recognized literary critics. The law was also attacked because the prosecutions were often directed against book material sellers who were indifferent to the fate of the attacked. In the United States "obscenity" never had strong roots as a common law offense. The reasons offered are that early colonists were unconcerned with depiction of sex largely because there was little or none in circulation. The life of a typical colonist during this period was one of hard physical labor. Therefore, the general disinterest in pornography may be attributable to a lack of leisure time. In the Massachusetts colony a fundamental interest was to uphold the religious faith. From the beginning of its existence, the colonial authorities freely dispensed punishment for such religious crimes as swearing and working on Sunday, and until the late 1600's, punishment for blasphemy included the death penalty. As in England, censorship in America was directed toward antireligious works rather than sexual material. A statute passed in Massachusetts in 1711 read that "evil communication, wicked, profane, impure, filthy and obscene songs, composures, 1130 writings or prints do corrupt the mind and are incentives to all manner of impieties and debaucheries, more especially when digested, composed or uttered in imitation or in mimicking or preaching, or any other part of divine worship". Further, the law prohibited the "composing, writing, printing, or publishing of any filthy, obscene or profane song, pamphlet, libel or mock sermon, in imitation of preaching, or any other part of divine worship". This statute, although closely related to anti- religious material, was applicable to solely sexual material as well. There are, however, no recorded prosecutions under the Massachusetts statute until the 1821 "Fanny Hill" case. In 1821, Massachusetts prosecuted the first case involving an illustrated book "Fanny Hill". Prosecution of the case, Commonwealth v. Holmes, was brought against the publisher, Peter Holmes, and resulted in his conviction based upon an illustration in the book and the text. This prosecution involved common law because the illustrations were not prohibited by the statute. The first obscenity case in the United States arose in 1815 in Pennsylvania, where there was no obscenity statute in existence. The case, Commonwealth v. Sharpless, involved the showing of a picture movie, although not in public for profit, charged as being "lewd, wicked, scandalous, infamous, and obscene, representing a man in an obscene, impudent, and indecent posture with a woman, to the manifest corruption and subversion of youth, and other citizens of this commonwealth, to the evil example of all others in like case offending, and against the 1131 place and dignity of the Commonwealth of Pennsylvania." The indictment also charged that defendants were guilty of "designing, contriving and intending the morals, as well of youth and other citizens of this commonwealth, to debauch and corrupt, and to raise and create in their minds inordinate and lustful desires." The defendants argued, as had Read and Curl, that they could not be convicted of such a crime without any statute prohibiting their conduct. The court found, however, that the defendants had violated public decency and thereby committed a legal offense. The court relied on the Sedley case in reaching its conclusion that acts of public indecency were indictable under common law. Henceforth, it was legislature rather than common law court decisions that headed the anti-obscenity movement in this country. In 1821, the State of Vermont passed the first obscenity statute in the United States. In 1834, Connecticut followed with a statute and in 1835, Massachusetts amended its colonial law to extend the ban on obscenity to importation and distribution and included prints, pictures, figures and descriptions. The updated statute was not as religiously affiliated as the old one and a test of obscenity was included for the first time. This test was whether the work is "manifestly tending to the corruption of the morals of youth." The first federal anti-obscenity statute was passed in 1842. It was a customs law aimed at the narrow problem of importing obscene material. The law directed the seizure and destruction 1132 "of all indecent and obscene prints, painting, lithographs, engravings and transparencies"; and like the English customs statute, was apparently aimed at the French postcard trade. In 1868, Anthony Comstock, a grocery store clerk in New York City, took it upon himself to investigate and report to prosecutors violations of the recently enacted legislation prohibiting the dissemination of obscene literature. Comstock was supported by community's Protestant leaders and members of the Young Men's Christian Association. Both groups had supported the creation of obscenity legislation. In 1873 the Committee for the Suppression of Vice was created in New York City. Comstock was the committee's chief Washington lobbyist and as a result of Comstock's efforts. Congress broadened the 1865 Federal Mail Act to include pornography. By the end of the 19th century, at least 30 states had some form of prohibition on the dissemination of "obscene" materials. The definition of "obscene," used in federal and states prohibition on the dissemination of obscene materials was the definition reached in the Queen v. Hicklin case in 1868. This definition remained in force until a 1957 decision by the United States Supreme Court set the pattern under which we enforce obscenity matters today. Before addressing this particular decision, a brief presentation of case law development affecting the area of censorship is in order. In the 1920's a case came before the Supreme Court involving measures designed to restrict freedom of publication. A weekly 1133 "hate sheet" that regularly excoriated the Jews was being turned out in Minneapolis by J.M. Near. The case dealt with the right of the municipal officials to suppress the publication. The high court, in a five to four decision, ruled against all prior restraints which had been imposed on the paper. New York had a statute directed against sadistic literature, which read as follows: "It is a misdemeanor to sell any publication principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures or stories of deeds of bloodshed, lust or crime". In 1941 Murray Winters was found guilty of possessing more than two thousand copies of a magazine titled "Headquarters Detectives". The magazine featured articles with titles such as "Bargains in Bodies", "Girl Slave to a Love Cult" and "Girls Reformatory." In 1948 the Supreme Court, in a six to three decision, reversed the conviction ruling that restrictions imposed on freedom of expression were void if the law was vague and 'uncertain. The Esquire magazine of the 1940's was similar to today's Playboy. Sex tended to dominate a number of its stories and articles; however, it was not deemed obscene. The Postmaster General reasoned that second class mailing privileges were intended by Congress to be provided for magazines "published for the dissemination of information of a public character, or devoted to literature, the sciences, arts or some special industry." With this thought in mind the Postmaster General suspended Esquire's second class mailing privileges. The impact 1134 of the high court's ruling was to declare that an item was not censorable solely because it failed to "contribute to the public good and the public welfare." In 1957 the Supreme Court reversed the Michigan conviction of a book distributor, Alfred E. Butler, who had been convicted of selling a novel titled "Devil Rides Outside". The book detailed the moral story of a young man's struggle against lust while staying in a French monastary. The Michigan court ruled that the book violated a state statute that had barred sales to the general public of books "containing obscene, immoral, lewd or lascivious language." Supreme Court Justice Felix Frankfurter wrote: "The State insists that, by thus quarantining the general reading public against books not too rugged for grown man and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely, this is to burn the house to roast the pig. We have before us legislation not reasonably restricted to the evil with which it is said to deal. The incidence of this enactment is to reduce the adult population of Michigan to reading what is fit for children." In Roth v. United States, 35 U.S. 476 (1957), the defendant, who published and sold books, was charged with violation of the federal obscenity statute. In a companion case, Alberts v. California, 354 U.S. 476 (1957), the defendant, Alberts, conducted a mail order business in the State of California. He was also charged with violation of the State's obscenity laws for selling obscene, lewd, and indecent books. For the first time a 1135 constitutional issue involving the First and Fourteenth Amendments was raised. The decision centered on whether these obscenity laws violated the First Amendment's freedom of speech and the due process clause of the Fourteenth Amendment. The defendant argued that the wording of the respective statutes did not provide reasonable definite standards of guilt so that people could understand and conform their conduct to the requirements of the laws. The Court held that the statutes were constitutional; and that obscenity laws designed to protect the morals of the people do not infringe on the area of protected speech or expression under the First Amendment. Also, that the wording of the statutes gave adequate warning of the types of conduct which was prohibited. ; The Roth formulation, at first glance, may not seem difficult. The five Justices declared that if "to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest" the matter was obscene. Thus, the Court established the broad rule that obscenity was not constitutionally protected. However, in later case the problem become one of defining the terms: "average person," "community standards," "prurient interests" and "dominant theme." Nine years later in Memoirs v. Massachusetts, 383 U.S. 413 (1966), the Court held: "The Supreme Judicial Court erred in holding that a book need not be "unqualifiedly worthless before 1136 it can be deemed obscene1. A book cannot be proscribed unless it is found to be utterly without redeeming social value." While Roth presumed "obscenity" to be "utterly without redeeming social value," Memoirs required that to prove obscenity it must be affirmatively established that the material is "utterly without redeeming social value." Therefore, even as they repeated the words of the Roth decision, the Memoirs plurality produced a •drastically altered test that called on the prosecution to prove that the material was "utterly without redeeming social value" a burden extremely difficult to discharge under our standards of proof. In the case of Paris Adult Theater v. Slaton, 413 U.S. 49 (1973), the Court said that even though obscene materials are shown only to consenting adults, the state has a right to challenge such materials and, if found to be offensive, to prevent their sale and distribution. The United States v. Orito, 413 U.S. 139 (1973) case was decided the same day the Supreme Court held that Congress has the power to prevent obscene material from entering the stream of commerce. The Court held that the 1969 Stanley case, which protected the right of people to keep obscene materials in the privacy of their homes, did not extend beyond the home. Therefore, although a person can have such material at home, it appears he or she could have difficulty transporting it there. Another significant 1973 case dealing with the definition of obscenity was Kaplan v. California, 413 U.S. 115 (1973). The Court simply said that books without 1137 pictures can be obscene. The most important of the 1973 decisions was the Miller case, which resulted in the Court's setting guidelines for the term "obscenity." In Miller v. California, 413 U.S. 15 (1973), the Court stated: "The basic guidelines for the trier of fact must be: (a) whether 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." The Court set forth the following examples of what a state statute could define for regulation under part (b) of the standard set forth above: (a) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, and (b) patently offensive representations or descriptions of masturbation, excretory functions and lewd exhibition of the genitals. Also, similar federal guidelines were set down in the United States v. 12 200 Ft. Reels of Super 8mm Film, 413 U.S. 123 (1973). The Court stated that for purposes of the federal statutes the court was prepared to construe prong (b) of the test to encompass the conduct set forth as examples in the Miller case. Therefore, a proper statement of the test for obscenity in federal cases would be as follows: (a) whether the average 1138 person, applying contemporary 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 including, but not limited to, representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, or representations or descriptions of masturbation, excretory functions, or lewd exhibition of the genitals, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. The most recent Supreme Court decision regarding obscenity was the William Pinkus, dba "Rosslyn News Company" and Kamera v. United States decided on May 23, 1978. This case established guidelines for a definition of the "community" by whose standards obscenity was to be judged, the court held that children are not to be included as part of the "community" as that term relates to the "obscene materials" proscribed by 18 U.S.C. S1461, and hence it was error to instruct the jury that children are part of the relevant community. A jury conscientiously striving to define such community, the "average person" by whose standards obscenity is to be judged, might very well reach a much lower "average" when children are part of that equation than it would if it restricted its consideration to the effect of allegedly obscene materials on adults. However, inclusion of "sensitive persons" in the charge advising the jury of whom the community consists was not an error. In the context of this case, the community 1139 includes all adults who compose it, and a jury can consider them all in determining the relevant community standards. Nothing prevents a court from giving an instruction on prurient appeal to juries as part of an instruction pertaining to appeal to the average person. The pandering instruction, which permitted the jury to consider the touting descriptions in the advertising brochures, along with the materials themselves, to determine whether the materials were intended to appeal to the recipient's prurient interest or, whether they were "commercial exploitation of erotica-solely for the sake of their prurient appeal. The tracing of these rulings clearly indicate the difficult task faced by the courts. On one hand, the delicate issues of constitutionality have to be met; and on the other, society demands protection, in areas of obscenity. The problems of law enforcement are equally difficult. Unlike most other crimes where the elements of the offense are spelled out guite vividly, in obscenity matters that is not the case. There is no way for police to know if a crime is being or has been committed because they have no way of knowing what a community will regard as obscene. III. PORNOGRAPHY INVESTIGATION A. PRODUCTION/DISTRIBUTION 1140 1. NATIONAL DISTRIBUTION (CHART A) Numerous pornography producers/distributors are identi- fied in this investigation. The following is a summary of national suppliers throughout the United States. Parliament News Company, Chatsworth, California appears to be one of the most prominent distributors in California and the company has been identified as distributing to: Sovereign News Company, Cleveland, Ohio; Canyon News Company, Glendale, Arizona; Rivergate News Company, New Orleans, Louisiana; Bon Jay Sales, Baltimore, Maryland; and Help Publishers & Distributors, Inc., Harvey's Lake, Pennsylvania. Sovereign News Company, Cleveland, Ohio receives pornographic material from nationwide sources including Parliament News Company, Chatsworth, California; Star Distributing, Ltd., New York, New York; Stardust Enterprises, 'Pennsauken, New Jersey; and Peachtree National Distributors, Atlanta, Georgia. In return, Sovereign News Company distributes to: Royal News Company, Romulus, Michigan; Sun Dial News Company, Denver, Colorado; Canyon News Company, Glendale, Arizona; Capitol News Company, Chicago, Illinois; Noble News Company, Baltimore, Maryland; Century Sales, Pennsauken, New Jersey (formerly Crown News Company, Camden, New Jersey); Imperial News Company, Depew, New York; Castle News Company, Butler, Wisconsin; Majestic News Company, Pittsburg, Pennsylvania; Automatic Enterprises 1141 and Atlantic Magazine Company, Washington, D.C. Star Distributing, Ltd., New York, New York, supplies pornographic material to Joe P. Enterprises, Boston, Massachusetts; Help Publishers and Distributors, Inc., Harvey's Lake, Pennsylvania; Century Sales, Pennsauken, New Jersey; Bon Jay Sales and Noble News Company of Baltimore, Maryland; Peachtree National Distributors, Atlanta, Georgia; Florida Periodicals, Tampa, Florida; Rivergate News Agency, New Orleans, Louisiana; and the Distributor System of Texas, Fort Worth, Texas. Crown News Company (name changed to Century Sales), Pennsauken, New Jersey has been identified as supplying Help Publishers and Distributors, Harvey's Lake, Pennsylvania. Bon Jay Sales, Baltimore, Maryland distributes pornographic material to Atlantic Books Distributors, Providence, Rhode Island, who in turn distributes to Magazine Agency, Minneapolis, Minnesota. Peachtree National Distributors, Atlanta, Georgia supplies Century Sales (Crown News Company), Pennsauken, New Jersey; Carolina Books Distributors, Raleigh, North Carolina; Florida Periodicals, Inc., Tampa, Florida; Sovereign News Company, Cleveland, Ohio; All Star News Agency, St. Louis, Missouri; Castle of Arcades, Lawton, Oklahoma; Satellite News, Biloxi, Mississippi; Star News, Biloxi, Mississippi; Rivergate News Company, New Orleans, Louisiana; and Satellite News Agency, Inc., Houston, Texas. 1142 Florida Periodicals, Inc., Tampa, Florida, is supplied by various suppliers end distributes pornographic material to Sovereign News Company, Cleveland, Ohio. The largest East Coast distributor has been identified as Star Distributing, Ltd., New York, New York, whose major recipient is Peachtree National Distributors, Atlanta, Georgia, who in turn distributes on a nationwide level. Documentation indicates that Star Distributing, Ltd., distributes as far West as Cleveland, Ohio (Sovereign News Company). Sovereign News Company distributes as far West as Colorado; Southwest into Arizona; and along the East Coast. In turn, Sovereign News Company, Cleveland, Ohio, is a major recipient of pornographic material from Parliament News Company, Chatsworth, California. 2. CALIFORNIA PRODUCTION/DISTRIBUTION (CHART B) B. INDIVIDUAL CORPORATE ORGANIZATIONAL PROFILES As a result of the voluminous amount of information forwarded, corporate organizational profiles have been developed. These profiles are linked to organized crime and include: Komar, Ltd. (Boltansky); Linhorn Investors, Ltd. (Womack); Star Distributing, Ltd. (DiBernardo); SFD Productions, Inc. (Levine); Miller Road Bingo Hall (Wisotsky); Global Industries (Thevis); Bon Jay Sales 1143 (Gresser); Sovereign News Company (Sturman) and Stu Segall & Associates (Zaffarano). Based on supplied documentation, the following narrative will depict the above individual corporate organizational structures and their relationships to each other. For the convenience of the reader, the organizational profiles are developed in stages. 1. CORPORATE ORGANIZATIONAL PROFILE #1 (CHART C) John Sanza is the secretary/treasurer for Man's world, Inc., 918 9th St., N.W., Washington, D.C. whose agent is Jeanette Hargrove. Jeanette Hargrove is the original agent of 808 K Street Association, Ltd., T/A Mark II Cinema, 808 K St., N.W., Washington, D.C., with S. Douglas Guise as the current president, James Proferes as a previous president (1975) and George Mekedes as the vice president. James Proferes is the president and George Mekedes is the incorporator for the Metrppole Social Club, 104 Rhode Island Ave., N.W., Washington, D.C. J. Douglas Gurge is the president for Croatan Books, Inc., 8653 Richmond Highway, Fairfax County, Virginia (corporate address is 121 Brooke Ave., Norfolk, Virginia and maintains P.O. Box 2817 which is 922 14th St., N.W., Washington, D.C.) whose original manager was Richard Goudie and the secretary/treasurer is Jeanette Hardrove. Herman Womack is the owner of the Beach Adult Gift 1144 Shop, Virginia Beach, Virginia, which employs Richard Goudie. Richard Goudie is the vice president of A & R Books, Inc., T/A A & R Books, 922 14th St., N.W,, Washington, D.C., with James Ingram as the president and J. Douglas Gurge as the registered agent. Richard Goudie is also the agent for M Street Periodicals, 1746 M St., N.W., Washington, D.C., with James Ingram recorded as the owner. James Ingram is also the owner of Tidewaters Periodicals, 3502 Washington Ave., Newport News, Virginia; Marlow Heights Periodicals, 4418 Barnabas Road, Temple Hills, Maryland; Maryland Money Management, 922 14th St., N.W., Washington, D.C. (same address as A & R Books, Inc.) and Croatan Distributors, 3005 McKinley St., N.W. and 922 14th St., N.W., Washington, D.C. James Ingram is the vice president (1974), Horace Wiltshire is secretary/treasurer (1975), Herman Womack was president (1976), Michael Nickerson is secretary/treasurer (1976), Peter Spruill was vice president (1976) and Rose Nickerson was secretary/treasurer (1974) for the Linhorn Investors, Ltd., 1520 East Ocean View, Norfolk, Virginia. Herman Womack owned bookstores in Maryland, Virginia and Washington, D.C. In 1971, by terms of his probation, he was barred from further participation in the pornography business. As a result, Womack allegedly sold his pornography businesses and currently resides in Norfolk, Virginia. 1145 Womack is the president of the Guild Book Service, Inc., 117 Brooke Ave., Norfolk, Virginia, and Budget Books, Inc., 2328 E. Little Creek Road, Norfolk, Virginia. Michael Nickerson is the secretary/treasurer and Peter Spruill is vice president. Horace Wiltshire (secretary/treasurer of Linhorn Investors, Ltd.) is also a director for Budget Books, Inc. Michael Nickerson is the vice president, Peter Spruill is the secretary/ treasurer and Rose Nickerson is the president of the Ft. Eustis Bookstore, 16909 Warwick Blvd., Newport News, Virginia. Rose Nickerson is listed as the president of the Shipyard Bookstore, 3415 Washington Ave., Newport News, Virginia; Admiralty Books, 8210 Hampton Blvd., Norfolk, Virginia; Shore Drive Books, 8141 Shore Drive, Norfolk, Virginia; and Fleet Books, 121 Brooke Ave., Norfolk, Virginia. 2. CORPORATE ORGANIZATIONAL PROFILE 12 (CHART D) On July 21, 1964, Robert E. Smith, Melvin Rankin and Samuel Boltansky were the incorporators for Central Magazine Sales, Ltd. In March 1968, the corporate records were amended to change the name from Central Magazine Sales, Ltd., to Central Sales, Ltd., Inc., with Alvin Tapper as secretary and Samuel Boltansky as president and sole stockholder. On April 25, 1968, Central Sales, Ltd., Inc., was changed to a closed corporation. On December 31, 1968, 1146 Tom Cat Distributing Company was merged with Central Sales, Ltd., Inc. On September 14, 1971, the name Central Sales, Ltd., Inc. was changed to read Komar, Ltd., T/A Central Sales East. On October 31, 1973, Foto, Inc., X-Bolt, Ltd., and Central Distributors, Inc., were merged into Komar, Ltd. Employed by Komar, Ltd., are Mel Ulnick, Louis Guglielmi (who signs the employees' checks) and John Sanza. Sanza is also the president of Man's World, Inc., 918 9th St., N.W., Washington, D.C. On January 14, 1975, a Roadway tractor, Maryland license number 7699FB, listed to Roadway, 240 South Kresson St., Baltimore, Maryland, was observed at Central Sales, Inc. This tractor was pulling a trailer, Delaware license number T37585. Several men from Central Sales, Inc., assisted in loading approximately 10 large crates into the trailer. These crates contained arcade booths (peep show booths) which were being shipped by Central Sales, Inc., to a vending company at 6427 Westheimer Road, Houston, Texas. The telephone number the driver was to call prior to delivery was 661-2201. Information was received from the Houston Police Department that the address 6427 Westheimer Road is the location of the Westheimer Newsstand. The telephone number 661-2201 is listed to the Starbase Publishing Company which owns the Westheimer Newsstand and the Bellaire Newsstand at 5807 Bellaire Boulevard, Houston, Texas. 1147 On October 25, 1976, a search and seizure warrant was served at Central Sales, Inc., by the Baltimore Police Department, Maryland. During the search, it was found that all pertinent business records for the years 1974, 1975 and 1976 had been removed. The vice president of Central Sales, Inc., Louis Guglielmi, admitted moving the records because he could not operate his business if they were seized. He also stated that he moved the records immediately following a raid at Bon Jay Sales, Inc., 6601 Moravia Park Drive, Baltimore, Maryland. Records that were found mentioned a business named the Distribution Systems of Texas located at 2416 Ludelle St., Fort Worth, Texas. This company distributed pornographic material in the Texas area and Louis Guglielmi signed all the checks for the employees. The employees of the Distribution Systems of Texas were listed as William Wheeler, Robert Bond and Mel Ulnick. Ulnick was -also mentioned as being an employee of Komar, Ltd. Records indicated that the Distribution Systems of Texas sent a $1,000 monthly check to Star Distributors, Ltd. The last check found at Central Sales, Inc., indicated that this $1,000 was transferred on January 14, 1974. In 1970, Robert Eugene Smith, an attorney for Samuel Boltansky, filed several court cases in states other than Maryland in which he claimed to be representing Komar, Ltd. and Star Distributors, Ltd. Samuel Boltansky is also the registered agent for Boltansky Enterprises, Inc., 1123 E. 1148 Baltimore St., Baltimore, Maryland (same as Tetra Corp.) with Harold Witman, Harry Anderson and Remay Miller as incorporators and George Boltansky as the secretary. Samuel Boltansky, Sheldon Braiderman, Michael Milton and Michael Grossfield are the incorporators for Towson Books, Inc. (formerly Budget Books, Inc.), located at 516 York St., and 1125 E. Baltimore St., Baltimore, Maryland. Samuel Boltansky owns the property at 928 14th St., N.W., Washington, D.C., which is the location of Sanza Books, Inc. owned by John Sanza. John Sanza is the agent for Denton Corporation, 419 E. Baltimore St., Baltimore, Maryland with Thomas Quaranta as the incorporator, Louis Guglielmi is the vice president with James Haskins as president and James Johnson as incorporator of Central Sales, Inc. Alvin Tapper, Guglielmi and Melvin Epstein are directors of the ALM Corporation, 1023 E. Baltimore St., Baltimore, Maryland (same address as Central Sales, Inc. and Komar Ltd.). The date of incorporation for ALM Corporation was July 3, 1972. This corporation's primary purpose was to purchase, own and hold the stock of other corporations acting as a "Holding corporation." An article of amendment dated February 17, 1975, revealed that the corporation became a closed corporation with Louis Guglielmi as the president and sole stockholder. The office address was changed to 1023 E. Baltimore St., Baltimore, Maryland, Louis Guglielmi being the resident agent. The secretary was 1149 listed as Michael Mulherin. According to the tax records for 1976, the president of the company was Louis Guglielrai and the vice president was Bradford Boone of Orchard Way, Masonville, Virginia. Louis Guglielmi is director of Commercial Distributors, 1022 Watson St., Baltimore, Maryland with Louis Omansky as incorporator and Michael tf Kaminkow as the registered agent. Michael Mulherin (secretary for ALM Corp.) is a director of KMT, Inc., T/A Sweden Books, 3710 Washington St., Newport News, Virginia, with Kenneth Yontz as president and Thomas Pallette as a director. Michael Mulherin is also the owner of Man's World Bookstore, 1700 E. Washington St., Petersburg, Virginia. Thomas Pallette, Clifton Harrison and Keith Edenfield are directors of Eros Bookstore, Inc., 125 Brooke Ave., Norfolk, Virginia, with Lowell Valvanio as registered agent. Pallette, Harrison, Edenfield and Valvanio are also corporate officers for the Royal Bookstore, Inc., 161 Granby St., Norfolk, Virginia. Thomas Pallette is president and Lowell Valvanio is the registered agent of Variety Books and News, Inc., 3300 Washington St., Newport News, Virginia, with Thomas Gach as secretary and treasurer. Samuel Boltansky is the president, Nathan Grama the secretary and Robert Strong the vice president of Radiant Merchandising Company, Inc., 1223 Arch St., Philadelphia, Pennsylvania. Bruno Cortese is the bookkeeper of Radiant Merchandising Company, Inc. 1150 3. CORPORATE ORGANIZATIONAL PROFILE #3 (CHART E) Star Distributing, Ltd., is a wholesale pornography distributor located at 150 Lafayette St., New York, New York. They receive pornographic material from UltraConcepts and Milky Way Productions, New York. Ultra Concepts provides art work, pictures, actors and models. Star Distributing, Ltd., maintains the distribution rights of Screw magazine published by Milky Way Productions, 116 West 14th St., New York, New York, whose president is Jim Buckley and the secretary is Al Goldstein. In an interview with the New York Times, Al Goldstein, the editor and publisher of Screw magazine, openly discussed the LCN ties of the distributing companies when he said, "We have no options as to who we deal with. No legitimate distributor will touch us. I'd deal with Hitler if I had to. I'll deal with anyone I can do business with." Goldstein and Buckley eventually signed a contract with Star Distributing, Ltd. , who agreed to handle the paper outside New York City; but they refused to deal in the city. Goldstein also said he did not feel threatened by anyone at Star Distributing, Ltd. , as long as he produced money for them. The New York edition sold for $1.00 and the national edition for $1.25. Milky Way Productions received $0.40 for each paper sold in New York and $0.30 for each paper sold outside the city. 1151 Star Distributing, Ltd. distributes to Peach tree National Distributors, 260 Luckie St., Atlanta, Georgia; Rivergate News Agency, 411 Jackson St., New Orleans, Louisiana; Bon Jay Sales, 6601 Moravia Park Drive, Baltimore, Maryland) Distributor Systems of Texas, 2614 W. Delle St., Ft. Worth, Texas; Help Publishers and Distributors, Road II, Pole 260, Harvey's Lake, Pennsylvania; Este Arte Corporation, Palm Beach, Florida; Sovereign News Company, 2075 E. 65th St., Cleveland, Ohio; Joe P. Enterprises, 694 Washington St., Boston, Mass.; Noble News Company, 7083 Pulaski Highway, Baltimore, Maryland and Crown News Company, 1171 Chestnut St., Camden, New Jersey. Theodore Rothstein's involvement in pornography became | known to law enforcement in 1955 when he and Robert Barkow were arrested and convicted of photographing nude males and females. Rothstein is the president and Marvin Friedman is the incorporator for Star Distributing, Ltd. When Star Distributing, Ltd. first came to the attention of !««• enforcement authorities, it was a failing business. Iti operations, according to one witness testifying at a hearing held by the New York Commission of Investigation, wert severely hampered by its need for cash. Shipments to Stir J Distributing, Ltd. were on a strict cash basis. Credit or | consignment sales were not acceptable. Star's financial position and credit rating suddenly improved and it begM '-i receiving merchandise on. consignment. Along with this j financial change came a new corporate officer, Robert DiBernardo. It was also clear, according to one witness, that in all subsequent business transactions, DiBernardo had the "last word" in Star. DiBernardo had no prior experience in this field. He had been the owner of Satellite Wheel Alignment Company in Brooklyn, New York. One of his employees at Satellite was Gaetano "Corkey" Vastola who was known to law enforcement authorities as a member of the New Jersey LCN DeCalvacante Family and had been convicted along with DeCalvacante in the Federal Court of Newark, New Jersey. Some of. the known affiliates of Star were identified at the New York State Commission of Investi- gation's public hearing in 1970. Bonate, Inc., occupied the same office space as Star. This firm operated as a local distributor of sex-oriented books and magazines. Also at this location was a firm known as "NAA". This firm was known to law enforcement as a mail order outlet for similar material and operated by Neil Albaum. Albaum had been involved in pornography in Suffolk County, New York, and has subsequently relocated to the offices of Star Distributing, Ltd. At these same premises, Albaum conducted business under the trade names NAA Films, Unlimited and Photo Print Distributors, Ltd. Albaum had also operated Debon Distributors, Ltd., at another location and in partnership with Robert Barkow. Barkow and Albaum had also established a mail order 1152 1153 house in Toronto, Canada, called the Club Levon. This enterprise was designed to handle the international mail order distribution of sex-oriented materials in Canada and the United States. Rothstein also appeared as the president of two companies located in Manhattan which did the printing and photo work for Star and its affiliates. The New York Commission of Investigation had also examined the operations of Robert Barkow and his connection with various distribution firms. Barkow appeared as the front man in three firms, all located in the same premises and operated out: of the same office. These firms were so closely inter-related that for all practical purposes they were one operation. The first of these firms was CADi Publishing Corporation which was formed in August, 1968 by Joseph Brocchini. CAD Publishing Corporation published sex- oriented illustrated paper back books and magazines. Brocchini had no prior experience in this field. His background had been in organized crime as a gambler and loan shark in Queens, New York. His operations in Queens were under the direct supervision of Joseph Lucchese, the brother of the leader of the LCN Lucchese Family. Brocchini, according to one witness, had admitted to having been a "shylock" before engaging in the publishing field and his background was well known. CAD Publishing Corporation's books and records were the same source of information available to the Commission concerning its operation. 1154 Entries reflected payments for printing books and magazines. Early in its operation, CAD Publishing Corporation worked essentially on a subcontracting basis. However, in January, 1969, CAD Publishing Corporation engaged a printer, Web Books, Inc. who took over this entire operation. Bark Book Distributors was formed by Robert Barkow in October, 1968 and was operated by him up to the time of the Commission's public hearing. Bark Book Distributors was apparently formed to distribute nationally the CAD Publishing Corporation's line of paper backs and magazines. Bark Book Distributor's records reflected that 90% of their purchases were from CAD Publishing Corporation. By projection, lacking accurate sales records, Bark Book Distributors grossed approximately $300,000.00 a year. The third major corporation at this location was the B & H Distributors, Inc., which was formed in March, 1969, to be a distributor of sex-oriented books, magazines and films. Approximately 20% of this company's purchases were from CAD Publishing Corporation. The principals in this operation were obstensibly Robert Ford and Howard Wasserman but the real boss was Robert Barkow. The books of B & H Distri- butors, Inc. showed that Barkow and Brocchini were drawing substantially higher salaries than either Ford or Wasserman. Ford remained in this operation for a short period of time. Wasserman, on the other hand, operated as sales manager for B & H Distributing, Inc. Manuel Block, the companies sole 1155 salesman, reported to him. The company had 4 or 5 office employees and a group of warehouse employees headed by Brocchini's brother-in-law, Bart Salamone. The corporate structure was: the salesman reported to the sales manager, who reported to Barkow, who in turn reported to Joseph Brocchini. There was no doubt that Brocchini was the boss with Barkow acting as the office manager. 4 4. CORPORATE ORGANIZATIONAL PROFILE 14 (CHART F) In a South Florida pornography case, Sidney Levine of New York City was convicted in a federal court of making low budget pornographic movies in a North Miami warehouse. Levine had admitted that Robert DiBernardo and others connected with Star Distributing, Ltd., were employees of his firm SFD Film Production, Inc., and had also loaned the firm money to buy a film. Sidney Levine is the president of Real Invest International Corp., 2554 North Federal Highway, Dania, Florida, with Ethel Levine as secretary. Levine is also president of Electronic Time Corp., 2554 North Federal | Highway, Dania, Florida, with Michael Strauss as secretary. Strauss is also president of Growth Systems, Inc., 2554 North Federal Highway, Dania, Florida. Two other companies with the same address as 2554 North Federal Highway are the Media Haven Advertising Agency and American Picture Productions Corp. Sidney Levine is the registered agent with D.W. Smith as president and Dave Gardner as vice president of the Video Cinema International Corporation, 1001 N.W. 62nd St., Ft. Lauderdale, Florida. Smith and Gardner are also respectively the president and vice president of Video Theater Inter national Corporation, 1001 N.W. 62nd St., Ft. Lauderdale, Florida. 5. CORPORATE ORGANIZATIONAL PROFILE #5 (CHART G) During a Florida investigation, telephone exchanges were checked on the Esteart Corp., 7520 N.W. 5th St., Miami, Florida and the residence of Michael Wisotsky and revealed numerous long distance telephone calls to Star Distributors, Ltd. in New York and the Duro Games, Inc., 347 W. Broadway, New York City. Duro Games, Inc. was also phoned by the Miller Road Bingo Hall whose corporate structure in 1974 revealed Theodore Rothstein as the vice president and Francis Westerly (wife of Myron Wisotsky) as the operator. Francis Wisotsky is the registered agent, Vincent Bracco is the president and Bonnie Bracco is a director for Corn- huskers, Inc., 2507 North Federal Highway, Delray Beach, Florida. Michael Wisotsky is the registered agent for Paradise Books, 1235 State Road 7, Hollywood, Florida and the Wisecon, Inc., 1700 North Federal Highway, Miami, Florida, along with Vincent Bracco as president and Bonnie Bracco as a director. Vincent Bracco is president 1156 1157 secretary/treasurer and Sidney Gursey is the registered agent of the Lucky Five, Inc., 6636 N.W. 57th St., Tamarac, Florida. Vincent Bracco is the president and Bonnie Bracco is the secretary for the Westland, Corp., 12405 S.W. 93rd St., Miami, Florida; Fun Forall, Inc., 7012 S.W. 4th St., Miami, Florida (dissolved); J.J. Publishing Co., 7004 S.W. 4th St., Miami, Florida; and the Adult Ventures, 2501 North Federal Highway, Delray Beach, Florida. Joseph Bracco, the nephew of Vincent Bracco is a shop steward for Local 814 International Brotherhood of Teamsters in New York City. Palma Lock is the registered agent for Westland Corp.; Fun Forall, Inc.; J.J. Publishing Co.; Adult Ventures, Inc.; and the Alms, Inc., 13993 Biscayne Blvd., Miami, Florida. Arthur Siegal is president of the Alms, Inc., Swank Health Spa, 20462 South Dixie Highway, Miami, Florida, Esteart, Inc., 7520 N.W. 5th St., Miami, Florida and the Adult Films & Projections Systems, 5770 Funston St., Hollywood, Florida. Estelle Siegal is the secretary of the Alms, Inc., vice president of the Swank Health Spa with Albert Rubenstein as the registered agent, secretary of the Esteart, Inc., with Albert Engel as the registered agent and Robert Tedeschi as the manager. She is also the secretary of the Adult Films and Projections Systems with Robert Tedeschi as the registered agent. Martin VJisotsky, the uncle of Michael Wisotsky is listed as the registered agent of the SMYL Corp., 9514 South Dixie Highway, Miami, Florida. 1158 During an investigation in April 1976, investigators purchased hardcore films and magazines from Michael Wisotsky during which Michael bragged about "being connected." Michael Wisotsky was charged with wholesale promotion of obscene material by the Broward County Attorney's Office and has admitted that he repairs projectors for the Esteart Corp., a peep show machine business. Also during the investigation of Wisotsky, detectives purchased hardcore material from two subjects, Vincent Digiacomo and Ernest Ferguson. Both subjects have past involvements in the sale and promotion of obscene material. Digiacomo and Ferguson admitted to being "jobbers" (distributors) for large pornography houses; however, they stated that they did not have any knowledge who was running the large houses. The investigation revealed they are used txy processors and producers to distribute films since the processors and producers are fearful that interstate shipments on pornographic material will be seized and they will be charged with federal violations. The large processors shipped their material to Ferguson and Digiacomo at various South Florida locations. Packages were falsely labeled using bogus names for the sender and were addressed to alias' being used by Ferguson and Digiacomo. These two men would then distribute to bookstores in Dade, Broward and Palm Beach Counties. Both men admitted that they had a close working relationship with the Wisotsky family. 1159 158-315 Vol. 2, O - 86 - 5 Further investigation revealed they had distributed for Star Distributors, Ltd. (New York City), Bon Jay Distributors (Baltimore, Md.), NFM Distributors (Calif.) and TGA Films (Calif.). In 1976, a meeting was held at Tony Roma's Restaurant, 460 Northwest 40th AVe., Plantation, Florida. Broward Sheriffs Office surveilled the meeting which revealed Michael Wisotsky, Natale Richichi, Robert Rubino (chaffeur for Ettori Zappi, a captain in the LCN Gambino Family), Anthony Lo Presti (owner of the restaurant), Maria Freedell (girlfriend of William Bittner), Michael Rogers (an operator of massage parlors in Broward County) and Robert Tedeschi (aka Bob The Machine Man) meeting together. A telephone toll analysis was conducted on Natale Richichi and it revealed telephone calls to the Imperial Distributors, 834 Hope St., Providence, Rhode Island, and to Robert DiBernardo, a soldier in the LCN DeCalvacante Family and a shareholder in Star Distributors, Ltd., 150 Lafayette St., New York, New York. 6. CORPORATE ORGANIZATIONAL PROFILE #6 (CHART H) Peachtree National Distributors, along with Global -Industries Inc. and Agency Services, Inc. are subsidiaries of the Fidelity Equipment and Leasing Corporation. Peachtree National Distributors, Inc. is a pornographic 1160 o distributor who forwards shipping manifests to and receives shipment inventories from Florida Periodicals, Inc. They order pornographic books from Star Distributors, Ltd. Michael Thevis has been involved in the publication and distribution of pornographic material since the early 1960's. He has been arrested numerous times by the Atlanta Police Department, but his attorneys were successful in keeping him out of prison until Federal authorities began investigating him in 1970. United States Attorneys in Jacksonville, Atlanta and New Orleans obtained four separate convictions of Thevis. A check of court records on October 30, 1972 indicated a Federal Grand Jury returned 17 indictments against Michael G. Thevis, Jr., and his wife, Joan C. Thevis. They were charged with violating federal laws regarding interstate transportation of obscene material and advertising obscene matter through the mails. Indicated as co-deferioants were these Atlanta businesses: Book Bin, Inc.; Peachtree News Co., Inc.; Pendulum Book, Inc., and Peachtree National Distributors, Inc. The couple was charged with mailing unsolicited obscene matter into nine states: Illinois, Colorado, Alabama, Indiana, New York, California, North Carolina, Tennessee and Texas, and with shipping obscene material to retailers in Florida and the District of Columbia. According to a press release on June 23, 1971, Michael 1161 G. Thevis was convicted on 12 counts of shipping obscene material across a state line. On June 25, 1971, Thevis was sentenced to five years in prison and fined $5,000 on each 12 counts of shipping obscene material. Court records were also checked on April 8, 1975, and they showed that Michael Thevis was also sentenced in Lexington, Kentucky. Thevis was found guilty on 12 counts and will serve three years on each count to run concurrently and he was fined $45,000. Thevis is quoted as saying "I rode the boom to its crest and I•made a lot of money. I'm not sorry for it." Although Thevis testified that he had sold all of his pornography businesses to Laverne Bowden, a corporate officer in several of Thevis1 pornography businesses, Federal agents posing as pornography dealers in New Orleans were told that Thevis is still in control. Thevis has admitted that he still owns buildings in which pornography operations are being conducted. Michael Thevis is recorded as the president of Global Industries, Inc., and a director for General Recording Corp., and was the former president of Pendulum Book, Inc., and a former officer o£ Book Bin, Inc. Thevis was arrested by the F.B.I, for violation of the Escape and Rescue Statute, Mail Fraud, Conspiracy, Obstruction of Criminal Investigation and Obstruction of Justice. William Williams is the president of Peachtree News Co., with Gerald Matheny as secretary/treasurer, and Kevin 1162 Mason as vice president. Williams is the secretary, Ralph Mitchem is the treasurer and Richard Wilson is the registered agent of Panama Books, 267 Marietta Avenue, Atlanta, Georgia, T/A Dale Mabry Bookmart, 3325 S. Dale Mabry, Tampa, Florida, T/A T & K Entertainment, 1772 W. Hillsborough, Tampa, Florida and T/A Busch Blvd. Bookstore 2106 E. Busch Blvd., Tampa, Florida (owner is listed as Norman Abood). William Williams is the president of Florida Periodicals, Inc., 7210 Anderson Road, Tampa, Florida, with Ralph Mitchem as secretary/treasurer, and Norman Abood as the registered agent. Williams is the secretary/treasurer of Cinematics, Inc., 267 Marietta Ave., Atlanta, Georgia, with Gerald Matheny as the president. Williams also pays for all expenses incurred by the Austin Bookmart, Campus Bookshop and the Pleasure Shoppe, all located in Houston, Texas. Melvin Friedman is recorded as president of Peachtree National Distributors, Inc. He, along with Rodney Smith and Julius Davenport, are officers for Carolina Books Distributors, 213 N. Harrington Street, Raleigh, North Carolina. Friedman is the secretary/treasurer of Johnny Reb's Books and the Card Shop, Inc., co-located at 267 Marietta Ave., Atlanta, Georgia. He is also an incorporator for All Star News Agency, 267 Marietta Ava., Atlanta, Georgia, with a branch office at 3721 Washington Ave., St. Louis, Missouri, and 1651 W. Howard Ave., Biloxi, 1163 o Mississippi, whose president is Ralph Mitchem. Melvin Friedman was a former president of Peachtree News Company, 267 Marietta Ave., Atlanta, Georgia. The Peachtree News Company, All Star News Agency, and the Southland Distributing, 174 Mill Street, Atlanta, Georgia, are subsidiaries of Global Industries, Inc., 177 Snooty Fox Chase, Sandy Springs, Georgia, whose parent company is Fidelity Leasing and Equipment Corp., 267 Marietta Ave., Atlanta, Georgia. The corporation officers of Global Industries, Inc., are Pat McClean as president, Robert Mitchem as an incorporator, Laverne Bowden as the major share holder, and Joan Thevis as the current secretary. Robert Mitchem is also the president of Apollo News, 515-1/2 East Houston, San Antonio, Texas, and the president of the Intimo News, 417 Myrtle Street, El Paso, Texas (inactive), with Ed Smith as the secretary. Gilbert Dietch and Robert Eugene Smith are directors, Joan Thevis is the secretary, and S. E. Widdoes, W. J. Reif and R. A. Finger are incorporators of the General Recording Corp. Gilbert Dietch, L'Kenny Helm and Warren Mason are directors, Pat Hickey is the secretary/treasurer, William Williams is the president, and Laverne Bowden purchased 100% of the shares of the Fidelity Equipment and Leasing Corp., 267 Marietta Avenue, Atlanta, Georgia. Pat Hickey is the secretary/ treasurer and Laverne Bowden is the president of the Omega 1164 Sales, Inc., 272 Marietta Avenue, Atlanta, Georgia. Laverne Bowden frequents the following businesses: D.A.B. Corp., T/A Gaslight Adult News, T/A Diners News, T/A Main Street News, all of 2800 Pioneer #118, Irving, Texas, whose incorporators are Joe Davis, Joe Davis III, and Stephen Davis and the Satellite News Agency, Inc., 500 N. Shepherd Avenue, Houston, Texas. Satellite News Agency, Inc., is a subsidiary of Agency Services, Inc., 500 N. Shepherd Avenue, Houston, Texas, whose parent company is Fidelity Equipment and Leasing Corp., and incorporators are Alice Parrott, Wilson Cooper and Helen Sloss. Other businesses with the address of 267 Marietta Avenue, Atlanta, Georgia, are Culver, A.L. Polygraph and Peachtree Books Distributing Co. The Fidelity Equipment and Leasing Corporation was incorporated on July 10, 1972, and operates as a holding company with the general business in leasing new and used equipment of every kind and character. Global Industries, Inc., Agency Services, Inc., co-located at 500 N. Shepherd Road, Houston, Texas, and Peachtree National Distributors, Inc. are subsidiaries. Global Industries, Inc., was incorporated for the purposes of purchasing securities or debt instruments of businesses of every kind and description, operating in corporate or other form. It maintains accounting services for Florida Periodicals, Inc., Peachtree News Co., Castle of Arcades, Satellite News Agency, Star News, Satellite News, All Star News Agency, and 1165 Rivergate News Agency. The Agency Services, Inc., issues operational orders to and receives merchandising and sales reports from Florida Periodicals, Inc. Peachtree National Distributors is a pornographic distributor who forwards shipping manifests (contents) to and receives shipment inventories from the Florida Periodicals, Inc. Peachtree National Distributors, Inc., orders pornographic books from Star Distributors, Ltd., who in turn forwards shipping manifests (contents) to Peachtree National Distributors. Florida Periodicals, Inc. receives pornographic scrap books from Star Distributors, Ltd., and Lyndon Distributors, 15756 Arminta Station, Van Nuys, California. Melvin Friedman, Robert Mitchem and Ed Smith are officers of the Greensboro Bookmart, T/A The Paris Bookstore and Fantasia Bookstore, which maintained a local bank account with the manager, depositing the money and forwarding the sales sheets to Laverne Bowden (Fidelity Equipment and Leasing Corp.) on a daily basis. The store received all their pornographic materials from Carolina Books Distributing, Raleigh, North Carolina. A coin collector comes to the store every seven to ten days to empty the peep show machines and change the films. The store had twelve peep show projectors and 103 films for sale on August 19, 1977. The manager received five percent of the money collected from the machines. Austin Hardison 1166 c I Evans was identified as the coin collector and operated a Trans Am Pontiac with Georgia registration PEL-920, which is registered to Cine-Matics, Inc., Atlanta, Georgia. Greensboro Bookmart, T/A Fantasia Bookstore was also operated in the same manner and included the same corporations and distributor. The employees of both stores were originally paid by Global Industries, Inc., and then by the Fidelity Equipment and Leasing Corp. Michael Thevis and his wife, Joan, signed the lease for the property where the bookstores were located. Both stores have since been moved. Rosalie Lonsdale, the owner of five pornography bookstores in Houston, Texas, when interviewed by an agent of the Texas Department of Public Safety, stated she had been in debt to Michael Thevis for $60,000. When Lonsdale wanted to sell her stores (debt had been reduced to $20,000), she was contacted and told to pay off the note before she sold. When she attempted to sell the stores, Tom Mitchell of Atlanta, Georgia, under the U.T. Corporation, arrived and assumed the operations of the bookstores. Chaparral Book Mart, 413 Peoples Street, Corpus Christi, Texas receives its pornographic material from the Sanco Distributing Co., 172 Marietta Avenue, Atlanta, Georgia'. San Antonio Book Mart, 2018 Broadway, San Antonio, Texas, is owned by William Sherlock Parrish. parrish has several arrests for sale of obscene material and his bail bond bills were sent to Pat McClean (president of Global 1167 Industries, Inc.). Taxes on World News Stand, 1230 North 3rd Street, Abilene, Texas, are billed to William Williams, Post Office Box 4215, Atlanta, Georgia (Fidelity Equipment and Leasing Corp.). The 3110 South Shepherd, Inc., also located at Post Office Box 4215, is responsible for paying state sales taxes on the following businesses in Texas: Diner's News 240 Westheimer Houston, Texas Fort Worth News 307 Main Street Fort Worth, Texas (inactive) Gaslight Adult News 3519 West Holcombe Boulevard Houston, Texas Main St. News 4418 Main Street Houston, Texas 8. CORPORATE ORGANIZATIONAL PROFILE #7 (CHART J) Bon Jay Sales is a wholesale pornography distributor located at 6601 Moravia Park Drive, Baltimore, Maryland. They receive pornographic material from Star Distributing Ltd., New York, New York; Sovereign News Company, Cleveland, Ohio, and Parliament News Company, Chatsworth, California. Sovereign News Company distributes pornographic material to Atlantic Distributors, Providence, Rhode Island; Suburban News, Inc., Silver Spring, Maryland, and Bookstores in Washington, D.C., Maryland, Virginia, North Carolina, New 1168 York, and New Jersey. The president and sole stockholder of Bon Jay Sales is Jack Gresser. Gresser is also the registered agent for Woodwork, Inc., 1010 N. Chester Street, Baltimore, Maryland, and Alpha Sentura Business Services, Inc., 205 W. Fayette Street, Baltimore, Maryland. He is the director of Centre Vending Company, 205 W. Fayette Street, Baltimore, Maryland, and obtained the mechanical license for Fayette News Center Inc., 205 W. Fayette Street, Baltimore, Maryland. In 1976, a search warrant was executed by the Maryland State Police and the Baltimore City Police Department on Bon Jay Sales' warehouse. Seized documents revealed that Bon Jay Sales was con ducting considerable business with Parliament News Company, California, and with Star Distributing Ltd., New York, New York. At one time, Gresser owed Parliament News Company $190,000. Gresser has a reputation of being a poor creditor with many overdue accounts and defaulted loans, and yet, a company in California allowed him to accumulate such a large debt. This pattern was also followed by Gresser who allowed some retailers to incur large debts to Bon Jay Sales. At the time of the raid, the Little Bookstore, Baltimore, Maryland, owed Bon Jay Sales more than $90,000, a figure that exceeded their gross annual sales. Other businesses that had substantial balances due on various accounts to Bon Jay Sales were the Adam & Eve Bookstore, 1169 Washington, D.C. ($11,916); Baltimore News Center, Maryland ($94,840); Bragg News Center, North Carolina ($33,904); Centre Vending Company, Maryland ($19,650); D.C. News Center, Washington, D.C. ($60,910); Fayette News Center, North Carolina ($29,000); String News, Ltd., North Carolina ($13,000), and Sovereign News Company, Ohio ($14,995). The unpaid account of Baltimore News Center reportedly exceeded the total amount the firm earns annually. Other correspondence revealed Bon Jay Sales used attorneys Reuben Caplan, William Seekford, and William Pittler to do necessary legal work. It is known that for the period from April 1973 until present, William Seekford has been paid a retainer fee ranging from $400-$600 per month. Seekford represented Bon Jay Sales in & criminal case in the State of Oregon in April 1973, in which Gresser was summoned and then later excused at the request of Seekford. A second case in which Seekford was involved took place in March 1974 in Norfolk, Virginia, involving the Dixie News Store located in Charlotte, North Carolina. The services of William Pittler are used to prepare the paperwork for the incorporation of businesses related to Bon Jay Sales. This is indicated by a memorandum found at Bon Jay Sales regarding the 1405 H Street Corporation in Washington, D.C. At the bottom of the note was written "names of the Board of Directors and Incorporators are forthcoming from Bill Pittler." 1170 Both credit card and phone company records indicate that for 18 months preceding the raid, Jack Gresser had traveled extensively throughout the United States, and several foreign countries. Those trips were to Los Angeles, California; New York; Newark, New Jersey; North Carolina; San Francisco, California; Connecticut; Minnesota; Miami, Florida; Beverly Hills, California; Sweden; Milan, Italy, and the Netherlands. On each occasion, Travel Whirl, Inc., owned by Gresser's wife, Brindell, arranged the travel itinerary. One particularly interesting business trip taken by Jack Gresser occurred on June 3, 1976, when he and Alan Schwartz, who is listed as a clerk for Bon Jay Sales, traveled to Milan, Italy, from Baltimore, Maryland. A second invoice mentioned a subject named Marrotti who also traveled to Milan, Italy, from New York, and the bill was paid by Travel Whirl, Inc., through the Centre Vending Company. On June 5, 1976, Gresser, Schwartz and Marrotti met with three Italian nationals in Milan, Italy, in reference to a large purchase of Elmo projectors. While in Milan, Italy, Gresser contracted to purchase 1,000 projectors at $61 each from Foto Flash Universal. The records also indicated that Gresser is the sole distributor of Elmo Products in the United States. It was later learned there is an Elmo Manufacturing Corporation at 3210 57th Street, Woodside, New York. Control of Bookstores by Bon Jay Sales and its method 1171 of operation is exemplified through Alan Schwartz, Oscar Lebowitz (listed as clerks for Bon Jay Sales), and William Shanks. On December 10, 1977, the Mac Sign Company, Fayetteville, North Carolina, concluded a contract with William Shanks, representing the Alpha Sentura Business Services of Baltimore, Maryland, and linked to Bon Jay Sales through corporate papers, to install signs at String News, Ltd., Fayetteville, North Carolina. It was also determined that William Shanks was removing coins from the peep show machines in the bookstores in North Carolina. When peep show machines are installed or electrical work is required, Shanks is normally accompanied by Alan Schwartz, who is listed as a repairman for the Centre Vending Company, Baltimore, Maryland. On December 12, 1975, a van with Maryland plate #L36913, driven by Alan Schwartz, arrived at String News, Ltd, This van was registered to the Centre Vending Company, String News, Ltd., and Bragg News, Inc., both of Fayetteville, North Carolina, and operated by Charles Kruger, III. William Shanks purchased the city licenses required to open String News, Ltd., and the incorporators were Thomas Ayres, William Bigham, and Oscar Lebowitz (listed as a clerk for Bon Jay Sales). String News, Ltd., opened a checking account in the Southern National Bank, Fayetteville, North Carolina. Although the manager could make deposits in this account, he was not authorized to write checks. All pornographic material for 1172 String News, Ltd., is supplied by Bon Jay Sales which is not registered to do business in North Carolina. On every Wednesday, the manager of String News, Ltd., telephones Bon Jay Sales and places orders for magazines and novelties. On Thursday and Friday of each week, the items are boxed and shipped by Greyhound Bus to Fayetteville. Many of these boxes were marked "machine parts" but contained only books, magazines and novelties. William Shanks personally brings film for the peep show machines and for counter sales at String News, Ltd., and Bragg News, Inc. Shanks travels to Fayetteville, North Carolina, every ten to fourteen days and collects the coins from peep show machines and returns to Baltimore, Maryland. Shanks pays the manager (formerly Charles Kruger, III, and currently Jeffery Robbins) of both bookstores ten percent of the total receipts. Robbins has a key to change the films but does not have the key to the cash box. If any of the peep show machines became inoperative, they are left for repairs until Shanks or Schwartz returns to Fayetteville, North Carolina. On August 19, 1977, String News, Ltd., had forty peep show machines and 76 films on hand for sale inside the store. Also found in the Bon Jay Sales' files was correspondence addressed to Gallery News, 412 Baltimore Street, Baltimore, Maryland, which was inside an envelope from Media Distributors, Ltd. (used the same address as Star Distributing, Ltd.), listing Barry Tobman as the owner of 1173 Gallery News and to contact William Shanks in case of an emergency. Tobman was also listed as a salesman for Bon Jay Sales. Information was also supplied by the United States. Customs Service that the toll calls from Bon Jay Sales when checked through the Treasury Department's computers, revealed that 20-30 of these telephone numbers were checked through the computer during an earlier narcotics smuggling investigation. William Seekford, Reuben Caplan, and William Pittler are attorneys for Bon Jay Sales, with John Moon recorded as president, Ronald Bellinger as Vice president, Ronald Clinton as a director, Oscar Lebowitz as a clerk, and Barry Tobman listed as a salesman. In 1975, Jack Gresser is listed as the sole stockholder of Bon Jay Sales. William Pittler is also the ihcorporator for Woodwork, Inc., 1010 N. Chester Street, Baltimore, Maryland (a business constructing peep show booths for pornography bookstores); the incorporator for Centre Vending Company, 205 W. Fayette Street, Baltimore, Maryland (a business repairing peep show machines in pornography bookstores), and the resident agent for the Alpha Sentura Business Services, Inc., same address as Centre Vending Company (a business collecting coins from peep show machines). Jack Gresser is the resident agent for Woodwork, Inc., the director of Centre Vending Company, and the resident agent of Alpha Sentura Business Services, Inc., along with Barry Tobman who is listed as an employee of 1174 Alpha Sentura Business Services, Inc. William Pittler is the incorporator for the Modern Social Education, Inc., 407 E. Baltimore Street, Baltimore, Maryland, and the registered agent for the Little Bookstore, Inc., 409 E. Baltimore Street, Baltimore, Maryland. Charles Carofoli is the president, Thomas Ayre signed for the mechanical license, Richard Caplan is the director, Richard Freeman the manager, and Edward Wolfe is the vice president of D.C. News Center. Carofoli is also a board member for the Modern Social Education, Inc. Thomas Ayre is the vice president, Edward Wolfe is a director, Charles Kruger, Harold Schulte and Al Star are directors, and Barry Tobman is the president of the Little Store, Inc. Ayre is also the vice president, Kruger the director, and Tobman is the president of the Modern Social Education, Inc., 407 E. Baltimore Street, Baltimore, Maryland; Baltimore News Center, 428 E. Baltimore Street, Baltimore, Maryland; Fayette News Center, 205 Fayette Street, Baltimore, Maryland (peep show machine license in Jack Gresser's name), and the Gayety Books, 407 E. Baltimore Street, Baltimore, Maryland. Ayre, Kruger and Tobman are also directors for G & B, Inc., T/A Broadway News Center, 301 S. Broadway, Baltimore, Maryland. Charles Kruger is vice president (1975); David Scotton is president (1975); Estor Swisher was the president (1974); Louis Roseman was the vice president (1974); William Shanks is the authorizing agent, and John Collete is the manager of the District C. 1175 Enterprises, 819 13th Street, N.W., Washington, D.C. Collete and Kruger are directors of the Holiday News, Ltd., 423 E. Baltimore Street, Baltimore, Maryland, with Charles Gillespie as director and Stuart Rombro as incorporates. Kruger is the former president (1975); David Scotton signed for the mechanical license; William Bingham is a former vice president (1974-1975); Thomas Ayre is the former president (1972); John Jones i's the current president, and Leroy Eichhorn is the current vice president of the 1405 H Street Corporation, 1405 H Street, N.W., Washington, D.C. Leroy Eichhorn is the vice president, and Dennis Pryba is the agent for MarIboro News, Inc., 7609 Marlboro Pike, Forestville, Maryland. Dennis Pryba is the owner; Larry Vineyard is the president; Dan Gottesman is the secretary, and Ted Nicely is the vice president of Cross Road Books, 5898 Leesburg Pike, Falls Church, Virginia. Dennis Pryba is the agent for Educational Books, 9130 Richmond Highway, Fort Belvoir, Virginia, and the agent for Suburban News, 8251 Georgia Avenue, Silver Spring, Maryland, with Donald Vessel as president. Barry Blum, a former employee of Suburban News, is currently a director for Northwest Books, Ltd., 600 Reistertown Road, Pikesville, Maryland. Ted Nicely (vice president of Cross Road Books) is president of M Street Enterprises, 3255 M Street, N.W., Washington, D.C., with John Jones (president of 1405 H Street Corporation) as a stockholder, Francis White as an incorporator, Kenneth Jones 1176 as the agent, and Art Dufrane as vice president. William Bingham, Thomas Ayre and Oscar Lebowltz are incorporators for String News Ltd., 522 Hat Street, Fayetteville, North Carolina, with William Shanks purchasing the city license, and Jeffrey Robbins as manager. William Bingham is vice president; William Shanks (agent for Capitol Books, Inc.) is the director; Jeffery Robbins is the manager; Oscar Lebowitz (listed is a clerk for Bon Jay Sales) is a director; Charles Kruger is the president, and William Pittler (attorney for Bon Jay Sales) is an incorporator for Bragg News, Inc., 4326 Bragg Boulevard, Fayetteville, North Carolina. Charles Kruger is the president of LeSalon, Inc., 804-810 14th Street, N.W., Washington, D.C., with William Bingham as vice president, C. B. Miller as the agent, and John Allison listed as the owner. 9. CORPORATE ORGANIZATIONAL PROFILE 18 (CHART K) Sovereign News Company is a wholesale pornography distributor located at 2075 E. 65th Street, Cleveland, Ohio. The company receives pornographic material from Star Distributors, Ltd., New York, New York; Parliament News Agency, Chatsworth, California; Action Publishers, St. Petersburg, Florida; Atlas News Distributors, Los Angeles, California; United Sales Distributors, address unknown; Global Press, Los Angeles, California; Star Media, Inc., New 1177 York, New York; Star Dust Enterprises, Pennsauken, New Jersey; Peachtree Discount Distributors, Atlanta, Georgia; Southeast Productions, San Fernando, California; Southwest Distribution, Los Angeles, California; California International Distributors, Los Angeles, California; Lasse Braun Sex Shop, Amsterdam, Netherlands; Buy Rite Magazine Sales, North Hollywood, California, and Shore Innovations, Inc., New York, New York. Sovereign News Company distributes pornographic material to Royal News Company, Romulus, Michigan; Crown News Company, Camden, New Jersey; Majestic News Company, Youngstown, Ohio and Pittsburgh, Pennsylvania; Sun Dial News Company, Denver, Colorado; Capitol News Company, Chicago, Illinois; Noble News Company, Baltimore, Maryland; World Wide News Company, Beachwood, Ohio; Discount News Company, Cleveland, Ohio; Automatic Enterprises, Washington, D.C.; Bon Jay Sales, Baltimore, Maryland; Atlantic Magazine Company, Washington, D.C.; Imperial News Company, Depew, New York, and Canyon News Company, Glendale, Arizona. Additional information on the business activities of Sovereign News Company surfaced in a combined and coordinated law enforcement raid on the warehouses of Bon Jay Sales and Noble News Company, both located in Maryland, on August 23, 1976. several uncashed checks, which totaled $11,201.31, made payable to Edward Stevens, were discovered. These checks had been sent from Castle News Company, 1178 ( Wisconsin (signature unreadable); New England News Company, Massachusetts (signed by Roger Carlton); Crown News Company, New Jersey (signed by Allan Crown); Majestic News Company, Pennsylvania (signature unreadable); Capitol News Company, Illinois (signed by Theodore Pettipiece); A & A Distributors, Inc., Illinois (signature unreadable), and Slam Products, Inc., Michigan (signed by Samuel Ellmans). The checks from Castle News Company, New England News Company and Crown News Company, were handwritten by the same individual and each of the checks was stamped with an identical check writing machine using the registration number 8P68189. Edward Stevens was to receive these checks during the period August 17 to 31, 1976. A notation on the check from A & A Distributors, Inc., 1448 West North Avenue, Chicago, Illinois, indicated it had failed to clear a bank in Chicago on at least two occasions and a letter from Jack Gresser to A & A Distributors requested it be reissued. Additionally, a list was seized which revealed nine businesses throughout the country which had the common billing address of Sovereign News Company, Cleveland, Ohio. These businesses were Castle News Company, Wisconsin; New England News Company, Massachusetts; Crown News Company, New Jersey; Majestic News Company, Illinois; Capitol News Company, Illinois; Imperial News Company, New York; Noble News Company, Maryland; Royal News Company, Michigan, and Sun Dial News Company, Colorado. Documentation has been 1179 developed to establish that several businesses are linked to Sovereign News Company, who is a nationwide distributor. These include Canyon News Company, Arizona; Capitol News Company, Illinois; Majestic News Company, Ohio? Royal News Company, Michigan; Imperial News Company, New York; New England News Company, Massachusetts; Crown News Company, New Jersey, and Nobel News Company, Maryland. The sole stockholder of Sovereign News Company is Reuben Sturman. His wife, Ester, is the secretary/ treasurer; Frank Steel is the statutory agent; David Zeitman and Keith Davie are incorporators; Samuel Joseph is the manager; Melvin Kamins is the manager, and Bernard Beckman is the representing attorney. Sturman is listed as a principal in the Cinematic Vending Corporation, Ltd., 36 Yonge Street, Toronto, Ontario, Canada, and as the statutory agent for the Royal News Company, 30024 Beverly Road, Romulus, Michigan. Sturman has been observed operating a 1976 Cadillac Seville with California Registration 189-PFH which is listed to Lyndon Distributors, 15755 Arminta Station, Van Nuys, California. In 1966, Sturman was indicted by a Los Angeles County Grand Jury with Milton Luros of the London Press Publishing Company, Los Angeles, California, for conspiracy to publish and distribute books which the California Supreme Court had ruled obscene. However, the United States Supreme Court ruled the material was not obscene. In March 1976, a 1180 Federal Grand Jury indicted Reuben Sturman, Samuel Joseph, Melvin Kamins, Joseph Zernic, Antoine Dostal, Fred Hirsch and Richard Johnson for the interstate transportation of pornographic films and magazines. Melvin Kamins is a manager of Discount News Company, co-located with Sovereign News Company. Other businesses co-located with Sovereign News Company are Palace Enterprises, Spot Discount Stores, Inc., and World Wide News Company. Judith Sturman, Joseph Sturman and Joyce Schwartz are incorporators with Sander Schwartz as the statutory agent of Spot Discount Stores, Inc. Sander Schwartz is also the statutory agent for World Wide News Company, with Franklin Blazer, Gladys Whitaker and Francis Yocabet as incorporators. Bernard Berkman was the representing attorney for William Pinkus of Rosslyn News Company, 7748 Santa Monica Boulevard, Los Angeles, California. Jack Heath is the president; Norma Heath is the secretary; Lee Kohrman is the attorney; Samuel Joseph is a shareholder; Frank Steele signs employees' checks; James Savage is the manager; Nahum Sturman is the vice president; Robert Coy is a director for Great Lakes News Company, T/A Imperial News Company, 35 Main Street, Depew, New York. In 1963, Reuben Sturman was the president and his wife, Ester, was the secretary/treasurer. Lee Kohrmen is also the attorney for Provincial Distributors, Ltd., 225 Louisiana Street, Buffalo, New York, 1181 (i with Wilbur Kemble as the president, and the Triangle News, Inc., 424 E. Main Street, Rochester, New York, with Stephen Baker as the president and Alan Maxwell as the secretary. An accountant firm, Krasney, Polk & Friedman located at 1605 Superior Building, Cleveland, Ohio, maintains the accounts for Triangle News, Inc., and the Imperial News Company. David Zeitman and Michael Nakon are the incorporators of Noble News Company, 6801 Pulaski Highway, Baltimore, Maryland, with Frank Steel as the president (1968); Melvin Kamins, Samuel Joseph and Maurice Escott as directors (1968); Herman Weiss as the manager, and Don Debow and J. Adams as directors. Noble News Company maintains a mailing address of 1605 Superior Building, Cleveland, Ohio, and a billing address of 2075 E. 65th Street, Clsveland, Ohio (Sovereign News Company). Gary Rosenthal, a director for the Baltimore News Center, 428 E. Baltimore Street, Baltimore, Maryland, also maintains the mailing address of 1605 Superior Building, Cleveland, Ohio, and 1225 King Street, Toronto, Ontario, Canada. Rosenthal is listed as the president of Bret Distributor, 100 W. 10th Street, Boston, Massachusetts. He was the original president of Beacon Distributors, T/A New England News, 215 A Street, Boston, Massachusetts, with Roger Carlton and Steven Baker as the current officers. Roger Carlton1s signature (rubber stamp) is used on the employees' checks of the Fourth Avenue Adult News, Inc., O South 4th Street, Ann Arbor, Michigan, and the News, Inc., North Land Road, Michigan, 48195. Steven Baker's signature (rubber stamp) is used on the employees' checks of the News, Inc., West Warren, Dearborn, Michigan, and the Michigan Avenue Bookstore, Michigan Avenue, Ypsilanti, Michigan. Roger Carlton is the president and Steven Baker is the director of Raleigh Books, Inc., County of Cuyahoga, Ohio. On March 24, 1977, Barbara Glin, a Notary Public employed as a secretary for Sovereign News Company, was interviewed by law enforcement agents at her residence, 16811 Kenyon, Shaker Heights, Ohio. Glin was shown a copy of a Secretary's Certificate which stated as follows: "SECRETARY'S CERTIFICATE "I, L. RAY VALUE, hereby certify that I am the Secretary of Combat News Company, a Delaware Corporation, authorized to transact business in Massachusetts and it appears from the records of said Corporation in my possession as such Secretary and as actually occurred at a meeting of the Directors duly called and ended on Thursday, January 14, 1977, the following resolution was passed: "RESOLVED that attorneys BARRY E. ROSENTHAL, WILLIAM COWIN and NELSON LOVINS be and hereby are authorized and empowered to appear for and represent this Corporation in all aspects of the trial and other proceedings in Suffolk County Criminal Court, Boston, Commonwealth of Massachusetts and to further represent this Corporation in all matters regarding legal representation; such authority to continue until terminated in writing by the Corporation; and that all prior representation is hereby nullified. "I do further certify that such Resolution is in full force and effect and has not been either amended or revoked, and that such Resolution and all action authorized thereby conforms to all 1182 1183 applicable provisions of the Articles of Incorporation and By-Laws of the Corporation. "WITNESS my hand and seal of this Corporation this 14th day of January, 1977. "/S/ L. RAY VALUE L. RAY VALUE - Secretary Combat News Company "STATE OF OHIO ) ) SS CUYAHOGA COUNTY ) "SWORN to before me this 14th day of January, 1977. "/s/ BARBARA GLIN Notary Public" After reading the form for several moments, GLIN advised that the signature, as it appears on the lower righthand portion of the certificate above the line Notary Public, is a copy of her signature. She advised that in her capacity as a notary public employed by Sovereign News Company, 2075 East 65th Street, Cleveland, Ohio, she had occasion to notarize numerous signatures. GLIN advised that on this Secretary's Certificate, she recognized the name of L. RAY VALUE as the name which the interviewing agent had asked her about during a previous interview at her residence |i on February 15, 1977. GLIN reiterated her previous information that she had never heard of the individual L. |•I RAY VALUE nor had she had occasion to determine if this individual actually existed. She further advised that generally individuals wishing to have their signature j notarized appear before her in person. However, she refused | to state that in all cases, when she notarizes signatures, do the individuals whose signature she is notarizing appear before her. GLIN advised that she continues to be employed as a secretary for MEL KAMINS at Sovereign News Company. Melvin Kamins, Samuel Joseph and Maurice Escott are directors of Regal Books, Inc., P.O. Box 1120, Watson Street, Baltimore, Maryland. Samuel Joseph, Melvin Kamins and Raymond Sloan are directors; Michael Nakon is an incorporator; Steven Baker is the secretary, and Morton Goss is the president of the Automated Vending Company, whose principle office is located at 1 E. First Street, Reno, Nevada. The peep show machine permit of Charles Books, Inc., 1827 N. Charles Street, Baltimore, Maryland, is in the name of Samuel Joseph. Morton Goss, Kevin Mclntyre, Thomas Slobodzian and Raymond Sloan are officers, with Reuben Sturman listed as the principle in the Cinematic Vending Corporation, Ltd., 36 Yonge Street, Toronto, Ontario, Canada. Reuben Sturman is also the statutory agent for the Royal News Company, 30024 Beverly Road, Romulus, Michigan. Frank Steele is the president, and Morton Goss is the vice president of the Royal News Company, 2075 E. 65th Street, Cleveland, Ohio. Frank Steele is also the statutory agent of Majestic News Company, 3713 Oakwood Drive, Youngstown, Ohio, with Morton Goss as president. Morton Goss was the president of Crown News Company, 1171 Chestnut4 1184 1185 Street, Camden, New Jersey, which recently changed its name to Century Sales, 9252 Commerce Street, Pennsauken, New Jersey, with the billing address of 2075 E. 65th Street, Cleveland, Ohio (Sovereign News Company). Goss is listed as the owner of Palace Movie, 1233 Filbert Street, Philadelphia, Pennsylvania. The address 36 Yonge Street, Toronto, Ontario, Canada (Cinematic Vending Corporation, Ltd.) is also the mailing address of East Coast Vending Company, 260 Tremont Street, Boston, Massachusetts, whose president is Theodore Pettipiece, and the treasurer is John Allison. The East Coast Vending Company is still in existence on corporate papers but its function has been assumed by Coast Vending Company, 681 Washington Street, Boston, Massachusetts, with Joseph Saraceni as president, Ralph Saraceni as treasurer, and Thomas Zazzaro as director. East Coast Vending Company's address of 36 Yonge Street, Toronto, Ontario, Canada, is also the address of Jeffery Wood who is a director of New Book City, Inc., 239 Tremont Street, Boston, Massachusetts, along with John Reardon as president and Alan Maxwell as a director. Mark Heiblim is president of The Scene, Inc., 681 Washington Street, Boston, Massachusetts, which is co-located with Coast Vending Company. The Coast Vending Company supplies movie projectors to the businesses established in Joseph Palladino's organizational profile. Theodore Pettipiece is the president of Associated 1186 ( J Rentals, Inc., 260 Tremont Street, Boston, Massachusetts, and the Cine City Art Theater, Inc., 675 Washington Street, Boston, Massachusetts, with Nicholas Caracasis as director. Nicholas Caracasis is the president of North Nevada Company, T/A Parisian Arcade, 219 West Second Street, and 740 South Virginia Street, Reno, Nevada, and the agent for Justice Books, Inc., T/A Paradise Books, 807 14th Street, N. W., Washington, D.C. Pettipiece's signature (rubber stamp) is used as the authorized signature on employees' checks for the following pornography businesses in Colorado and Michigan: Book Mart, Inc. (Central), Court Place, Denver, Colorado; Book Mart, Inc. (North), 84th & Valley Highway, Denver, Colorado; Book Mart, Inc. (East), East Colfax, Denver, Colorado; Book Shop, Inc., West 2nd Avenue, Denver, Colorado; 15th Street Magazine Exchange, 15th Street, Denver, Colorado; Books, 20th Street, Denver, Colorado; Tip Top Bookstore, 124 Monroe Avenue, Detroit, Michigan, and The Book Shop, Inc., Courtland, Jackson, Michigan. Pettipiece is also the president of Automated Services Consultants of California, which maintains two addresses, 15745 Stagg Street, Van Nuys, California (parent company),/ a^id 6800 N. 55th Street, Glendale, Arizona (subsidiary), with Phillip Santhon as the operator for the latter address, John Allison as the secretary, Robert Coy as the treasurer, and Kim Short as the manager. Theodore Pettipiece is also the president of Sun Dial 1187. News Company, 2650 W. 2nd Avenue, Denver, Colorado, and is the authorized signer of employees' checks for Capitol News Agency, 3400 N. Kedzie Avenue, Chicago, Illinois, whose manager is Al Bloom, and an officer is Stanley Seidler. The Sun Dial News Company, Capitol News Agency, Castle News Company, 4551 N. 125th Street, Butler, Wisconsin, and Majestic News Company, 922 West North Avenue, Pittsburgh, Pennsylvania, maintain the billing address of 2075 E. 65th Street, Cleveland, Ohio (Sovereign News Company). The operation of pornography businesses in Arizona is primarily through the figures of Erland Bartanen and Phillip Santhon. Erland Bartanen's operation appears to be independent in nature. However, Bartanen's source for pornographic supplies is dependent upon the Black Amusement, Inc., T/A Canyon News Company, which is currently the only identified supplier of pornographic material in Arizona. Canyon News Company receives it's supplies from Parliament News Agency, 21314 Lessen, Chatsworth, California. While there are independent retail operators, the activities of Bartanen, Santhon, Lyle Cox, Manuel Buso, Valeri Trambitas and Patrick Baca govern the distribution of films, magazines, books, rubber goods, novelty items and film video viewing devices in Arizona. Phillip Santhon has no criminal record in Arizona. However, he was charged with four misdemeanor counts of commercial exhibition of obscene items in Arizona. While 1188 this case was pending trial, Black Amusements, Inc., pled guilty to two counts and agreed to close the Le Sex shoppe at 6 W. Washington Street, Phoenix, Arizona, in exchange for dismissal of charges against Santhon. Santhon does have prior arrests by the Los Angeles County Sheriff's Office. Phillip Santhon originally appeared in Phoenix on May 29, 1975, when he began applying for various privilege tax (sales) and film video licenses on behalf of Erotic Words and Pictures (E.W.A.P.) and the Automatic Vending Company. Phillip Santhon maintains the business tax license and Robert Coy the film license for the Pleasure Palace, 1524 E. VanBuren, Phoenix, Arizona, and Barney's Bookstore, 1421 E. McDowell Road, Phoenix, Arizona. The property used by both bookstores is owned by Milton & Beatrice Luros. Milton Luros also owns Parliament News Company, 21314 Lessen, Chatsworth, California. Phillip Santhon and Gregg Dudley are the lessees of the Southside Bookstore, 4615 S. Central Avenue, Phoenix, Arizona, with the film license in Robert Coy's name. Phillip Santhon is also the president of Black Amusements Company, T/A Arizona Bookstore, T/A Canyon News Company (maintains the same address as 6800 N. 55th Street, Glendale, Arizona), with Gregg Dudley as the secretary. Dwain Esper is the lessee; Gregg Dudley obtained the business tax license, and Robert Coy obtained the film tax license for the Paris Lounge (currently closed), 315 E. 1189 Washington Avenue, Phoenix, Arizona. Dwain Esper is the president and Millicent Wratten is the secretary for the MJW Enterprises, Inc., 315 E. Washington, Avenue, Phoenix, Arizona. Robert Coy signed for the film license for the Mini Vue Adult Theater, 2438 E. McDowell Road, Phoenix, Arizona, which is owned by William Bates, with Donna Dees as the licensee and Cletus Hlbner as the property owner. Gregg Dudley signed the business tax license; Robert Coy signed the film tax license, and Narhan Tager is the property owner of Le Sex Shoppe, 6 W. Washington, Avenue, Phoenix, Arizona (currently closed). Nathan Tager is also the property owner of 2 W. Washington Avenue, Seattle, Washington, which houses Ellwest Stereo Theaters, Inc., T/A Ellwest Stereo Theater with the business address of 500 Wall Street, Seattle, Washington. The manager is' Fred Holton, with John Ebert as the agent, and Larry Trambitas as the lessee for the Ellwest Stereo Theater in Seattle, Washington. Larry Trambitas is the director of the Western Amusement Company, Inc., 3126 Elliott Avenue, Seattle, Washington, and the director of T&T Films, Ltd., 1106 Grosvenor House, 5th & Wall Streets, Seattle, Washington. The corporate officers for the Ellwest Stereo Theater, 190 Union Street, Memphis, Tennessee, are Larry Trambitas as president, John Ebert as secretary/ treasurer, David Capp as manager, and William Cooley as the vice president. William Cooley signed the occupancy permit; 1190 Larry Trambitas, Vesta Trambitas and Wesley Nashman are the directors, with Sterling Stevens, Bonny Hlnes and Robert Bodoin as the incorporators of the Ellwest Stereo Theaters of Washington, D.C., 1418 Eye Street, N.W., Washington, D.C. Larry Trambitas is the president, with Wesley Nashman, Vesta Trambitas and William Cooley as board members of the Ellwest Stereo Theater, Inc., 727 7th Street, New York, New York. Larry and Vesta Trambitas are the directors of the Ellwest Stereo Theaters, Inc. of Texas, 310 Main Street, Ft. Worth, Texas. Larry, Vesta and Valerie Trambitas are officers of the Ellwest Stereo Theaters, Inc. of Jacksonville, Florida. 11. CORPORATE ORGANIZATIONAL PROFILE #9 (CHART M) Michael Zaffarano is identified by the U.S. Justice Department as a Caporegime (captain) in the LCN Bonnano Family. He is the president of the D.C. Playhouse, Ltd., T/A D.C. Playhouse Theater, 727 15th St., N.W., Washington, D.C., along with Stu Segall, Norman Arno, John Ausbrook and Saul Heller as directors and Marilyn Lizzio, Mary Walls and George Ward as incorporators. Zaffarano resides at 2848 Riverside Drive, Wantagh, Rhode Island and stays at 1310 New Hampshire Ave. , Apt. #707 when in Washington, D.C. His arrest record dates to 1947 and includes charges of assault and robbery, interstate transportation of stolen securities, grand larceny, 1191 158-315 Vol. 2, 0 - 86 - 6 ( burglary, interstate transportation of stolen property and the interstate transportation of pornography. On November 11, 1975, Mr. Zaffarano told an F.B.I, undercover agent that he is the main distributor of pornographic films in the United States and stated emphatically that if anyone buys or opens any theaters in Washington, D.C. it would be him. Marilyn Lizzio, Mary Walls and George Ward (incorporators for the D.C. Playhouse Theater) are also incorporators for Denmark Publications, Inc., T/A Denmark 1/2 Books and Movies, 822 F St., N.W., Washington, D.C., with Jacob and Ruby Kramer and Ely Allman as directors and Mike Casey as the agent. Mike Casey is also the agent and Jacob Kramer is the owner of Denmark Cut Rate Books, 918 14th St., N.W., Washington, D.C., and the Life Size Movie Arcade, 523 9th St., N.W., Washington, D.C., Jacob Kramer is also the owner of Denmark 1/2 Price Store, 529 9th St., N.W., Washington, D.C., and the director of the Book Nook, Inc., 216 East Baltimore St., Baltimore, Maryland, along with Ruby and Joyce Thibert as directors. Marilyn Lizzio, along with N. Weir and Richard Rizzi, are also the incorporators for the 14th Amusements, Inc., T/A Casino Royale Theater, 806 14th St., N.W., Washington, D.C., along with Billy Cole as a director and Bruce Whetshine as the owner. Bruce Whetshine is the listed owner of the Casino Royale Theater and a director of the Adam & Eve Book Store, 1192 o Inc., 815 14th St., N.W., Washington, D.C., along with George Cole and Herbert Cole as directors. The incorporators for the Adam & Eve, Inc., are Fred Bennett, G. Markle and Ronald Recht. Michael Zaffarano owns the Pussycat Cinema, 1603 Broadway St., New York, New York and orders supplies for United American Theater Co., T/A Pussycat Cinema, 700 Washington St., Boston, Massachusetts, for his brother-in- law, Anthony Mascolo, who is listed as president. Anthony Mascolo is also the president of Westend Theater, Inc., 75 Causeway St., Boston, Massachusetts and the National Land Corporation, 690 Washington St., Boston, Massachusetts. In February, 1976, the National Land Corporation concluded a contract with a construction firm to renovate the exterior open theater vestibule of the United American Theater Co., T/A Pussycat Cinema, 700 Washington St., Boston, Massachusetts. The National Corporation issued a $10,000.00 check to the construction firm dated February 10, 1976 drawn by the United American Theater Co. Investigation revealed the $10,000.00 was a loan through P.O. Box 362, Canal Street Station, New York, New York, 10013. The P.O. Box 362 was opened on September 18, 1968 by Ted Rothstein who signed as president for Star Distributors, Ltd., 150 Lafayette St., New York, New York, 10013. One of the first films shown at the D.C. Playhouse Theater, titled "Defiance", was produced by Stu Segall & 1193 Associates. Stuart Segall is the owner of Stu Segall & Associates and the Miracle Film Releasing Company. These two companies maintain the same addresses at 8564 Melrose Ave., Los Angeles, California and 165 West 46th St., New York, New York. Mr. Zaffarano is recorded as vice president of both companies. In 1971 and 1972, Stuart Segall, Theodore Gaswirth and William Amerson were recorded as the owners with Charles Krause as the incorporator of Capricorn Industries, Beverly Hills, California, as the Los Angeles County, California Recorder's Office. Theodore Gaswirth is an incorporator, Michael Collela is a director and Fred Alfano is the secretary/ treasurer of Lyndon Distributors, 15756 Arminta,Van Nuys, California. Michael Collela, Fred Alfano, Sharon Penner, Del Wells and Patricia Smith are directors of London Enterprises also located at 15756 Arminta, Van Nuys, California. Michael Collela is the Chief Executive/ Financial Officer of Briarwood Corp., 15754 Arminta, Van Nuys, California, with Richard James, Scott Brastow, Robert Braverman, Roland McMillian and Barbara Friedman as directors. Norman Sovereign, Fred Alfano, Michael Collela and Theodore Gaswirth are the incorporators of NFM which is the parent company of Erotic Words and Pictures (EWAP) whose incorporators are Mary Turner, Howard Cohen, Howard Green and Rita Grossman. Mary Turner and Robert Turner are the incorporators of Turner Enterprises and Howard Green is the 1194 vice president of San Oaks Distributing, Inc., 62 Belvedere St., San Rafael, California, with Donald Warnecke as the owner. Howard Green and Reuben Sturman own 100% of the stock (50% each) in Charles Books, 1927 North Charles St., Baltimore, Maryland. Green and Struman also own 50% of the stock (25% each) of Castle News Company, 4551 North 25th St., Butler, Wisconsin with the remaining 50% of the stock owned by Wilson and Company, Cleveland, Ohio. Crown News Company's (name currently changed to Century Sales, 9252 Commerce St., Pennsauken, New Jersey) merchantile renewal license in 1975 listed Allan Crown as the secretary and Morton Gross as the president. The merchantile renewal 'license for Crown News Company in 1977 listed Allan Crown as the applicant. Allan Crown, Alvin Friedkin and Richard Sherwin are the incorporators of the Revel Sales, Inc., 15101 Keswick St., Van Nuys, California. Richard Sherwin is the Chief Executive Officer, Pedro Mendoza is the secretary, Charles Swan and J. Montesano are the directors of the Marquis Publishing Corp., also located at 15101 Keswick St., Van Nuys, California. Rita Grossman (incorporator for Erotic Words and Pictures) is the secretary/treasurer of Parliament News Co., 21314 Lassen, Chatsworth, California, with Paul Wisner as president. Jack Shulem, Franklin Laven and June Blair as directors. A subsidiary of Parliament News Company is Centaur Distributing Company whose manager is Jack Wolf. 1195 Centaur Book Distributing Company owns the Turk Street News, 66 Turk St., San Francisco, California; Mission Street News, 2075 N. Mission St., San Francisco, California, and Folsom Gultch, 600 Folsom St., San Francisco, California. June Blair (director for Parliament News Co.), Herman Malorrus, Leonard Martinez, Max Cohen and Judy Lechuga are directors for the Golden State News Co., 1785 VJ. Adams St., Los Angeles, California. Judy Lechuga is the secretary, Alvin Tapper is the Chief Executive Officer, Pat Alexander and Marilyn Thornberg are directors of the California Publishers Liquidating Corp., 2611 S. Halldale Ave., Los Angeles, California. Judy Lechuga is the secretary, Marilyn Thornberg, Ronald LaBowe and Isabel Oros are the directors, Jerome Kult is the Chief Executive Officer and Michael Warner is the Chief Financial Officer of the Sutton House Publishing, Inc., 4202 W. Jefferson Blvd., Los Angeles, California. Alvin Tapper is also the owner of FCA Films, Inc., 2211 Union St., Los Angeles, California, and the California and Pacific Liquidators, 2611 Halldale Ave., Los Angeles, California. Stephen Golden is the husband of Irene Golden, who is the sister of Theodore Rothstein of Star Distributors, Ltd. Stephen Golden is the Executive Officer of FCA Films, Inc. IV. ORGANIZED CRIME INVOLVEMENT (OTHER THAN CORPORATE 1196 ORGANIZATIONAL PROFILES) The Mitchell Brothers Film Group, San Francisco, California is a major supplier of high quality XXX rated pornography films to the Washington, D.C., Playhouse Theater. In 1973, Arthur and James Mitchell produced a film titled "Behind the Green DOT" which was very successful. In October of 1973, the Mitchell brothers said they were visited by two men, Robert DeSalvo and James Bochis, who wanted to obtain national distribution rights to the film for one of their companies based in Ft. Lauderdale, Florida. "He wanted to distribute our film, offering us a 50/50 split," said Arthur Mitchell. "We told them that we already made distribution arrangements." They replied that if we didn't give the film, pirated versions of it would be playing around the country in a week. We turned them down, but a couple of weeks later they called back and made another effort. We turned them down again; and a short time later, pirated versions of the film started playing in major cities across the country. We obtained restraining orders, but before we could stop them they hurt us badly. They 'wiped out several key markets for us: Miami, Dallas and Las Vegas. Robert DeSalvo was convicted in 1976 in federal court in Memphis, Tenn., on a charge of conspiracy to ship obscene 1197 material interstate along with Melvin Friedman, Michael Cherubino, Anthony Arnone and Anthony Peraino (listed by the United States Justice Department as a soldier in the LCN Colombo Family) involving the businesses of Damiano Productions, Fidelity Equipment & Leasing Corp., and Bryanston Distributors. Melvin Friedman was also found guilty of interstate transportation of obscene materials in the United States District Court of Oklahoma City involving the business of Peachtree National Distributors. At this time, DeSalvo is a federal fugitive. Anthony Arnone has been guoted as saying Anthony Peraino mediated a dispute between himself and another movie theater operator about local screening rights to "Deep Throat." Eventually, Arnone said, Peraino gave him Florida distribution rights and the' other man, Robert DeSalvo, got rights for most of the rest of the nation. Gerald Damiano sold "his interest in the movie to Anthony Peraino for $25,000; When Damiano was asked by a New York Times reporter about the seemingly low price he received for the movie rights, he was guoted as saving, "I can't talk about it ... You want me to get both my legs broken." Peraino was arrested with Peter Marchese and Philip Sayona for arson of the Tilton Theater, Northfield, New Jersey. Between October 18, 1972, and October 24, 1972, Peter Salanardi aka. "Sonny Boy," and Nicholas Musolino were 1198 observed in Los Angeles meeting with Michael Zaffarano. At the same time, Salanardi and Musolino were being sought for the murder of Carlo Lombardi in New York. Both the victim and the two suspects were involved in large scale heroin distribution in that city. While in Los Angeles, California, Salanardi and Musolino were guests at the homes of Stuart Segall and Theodore Gaswirth and were observed driving Gaswirth's vehicle. When Gaswirth lived in New York, Anthony Mascolo lived across the street. Mascolo visited with Gaswirth in July 1975 when Mascolo was living in the San Fernando Valley area of Los Angeles. Theodore Gaswirth is currently operating the Lyndon Industries, 15756 Arminta, Van Nuys with Michael Collela and Fred Alfano as partners. Recently, a search warrant executed by the Los Angeles Police Department at this location resulted in Gaswirth's arrest for sale of pornographic materials and a violation of California Weights and Measures due to short footed films. In November, 1973, Office of the District Attorney, Los Angeles forwarded a request for information to the Cleveland Police Department concerning Ted Gaswirth and his telephone calls to 216/881-1099 of Cleveland, Ohio. Investigation revealed the telephone number was that of Discount News Co., 2075 E. 65th St., Cleveland, Ohio (Sovereign News Company's address). Samuel Haimowitz, Thomas Sinopoli and Dominick Raffone have been observed in the Los Angeles office of Mr. 1199 ( Zaffarano's businesses, Stu Segall & Associates and Miracle Film Releasing Company. Dominick Raffone, Michael Rizzitello (former member of the Joey Gallo LCN Family in New York), Jack LoCicero, James Fratianno and Thomas Ricciardo (member of the Joseph Columbo LCN Family in New York) were indicted by a Los Angeles federal grand jury on charges of attempting to extort up to $20,000 from local pornographers and a dummy pornography business set up by the F.B.I. Also, a known pornography distributor in Minneapolis, Minnesota, Ferris Alexander was stopped in Los Angeles, California, in the company of William Bittner, also known as William Haimowitz on February 11, 1974. On May 15, 1975, a truckload of pornographic materials was hijacked in St. Paul, Minnesota. The owner of the truck and person reporting the crime was Michael Kaplins of 2014 Westchester, Baltimore, Maryland. At this time, Mr. Kaplins stated that the shipment was being shipped from Bon Jay Sales, 6601 Moravia Park Drive, Baltimore, Maryland, (formerly 600 Aisquith St., Baltimore, Maryland) to a party named Ferris and gave a phone number which was later traced to Ferris Alexander. On September 8, 1975, several cartons of pornographic booklets being shipped by Emery Air Freight broke open. Emery officials refused to deliver the shipment and notified federal and local authorities. The shipment was found to contain material displaying young children and adults in pornographic activity. The pornographic material 1200 was being shipped from Atlantic Distributors, |9 Ford St., Providence, Rhode Island, to Magazine Agency, 419 Hennepin Ave. , Minneapolis, Minnesota, which is owned by Ferris Alexander. In 1970, Ferris Alexander was convicted of interstate transportation of obscene material in federal court, along with Samuel Manarite, a member of the Vito Genovese Family and Richard J. Portela. In 1972, Ferris was sentenced to Sandstone Penitentiary where he served 9 of 18 months and paid a $20,000 fine. m An identified supplier of pornographic films to Alexander through correspondence, as indicated below, is William and Lewis Mishkin and their Motion Pictures, Inc., 1501 Broadway, New York, New York, dated November 12, 1975: I hope that by now you have had your first playdate on the INTIMATE TEENAGERS, and that the results were as good as they have been all overthe country. I would appreciate learning when you will be through with the prints. I am not rushing you, but we have been considerably more successful with this film than we had originally anticipated, and with the negative in Europe, this has caused us aprint problem. I have several other films that you might be interested in, including THE FILTHIEST SHOW IN TOWN (Harry Reems and Tina Russell), ADULT PLAYPEN * • • * A partial list of recorded calls from Alexander's main warehouse at 20 North 14th St., Minneapolis, Minneapolis 1201 (f revealed telephone calls to several known businesses and individuals involved in the pornography industry such as Kenneth Guarino, William Mishkin, Stu Segall & Associates, Star Distributors, Ltd., David Grama, Robert Eugene Smith, Samuel Haimowitz, Lyndon Distributors, Bon Jay Sales, Inc., Norman Arno and the Mitchell Brothers Film Group. William Bittner was arrested for operating a warehouse in which 1.5 million dollars of hardcore pornographic material was confiscated. Also arrested with William Hit(nor w.is Anthony Zap'pi who is the secretary/treasurer of Tennis ttJi-s union Sb-1 in New 1'ork City. William Bittner is currently operating the Lauderdale Beach Hotel, 101 S. Atlantic Blvd., Ft. Lauderdale, Florida. Donald Embinder is the president of the hotel. Ronald Zappi is an employee, as well as Robert Barkow, who is also the production consultant for Blueboy Magazine. Bittner also operates the Suki, Inc., dba Pojo, a hardcore pornography distribution business with his step brother Samuel Haimowitz. William Bittner stated to F.B.I, agents he sometimes used his step father's name, William Haimowitz. When the Suki warehouse was searched it was established that they were doing a nationwide business. Records indicated that they were grossing $40 to $50 thousand per month on magazine sales alone. When added to their film distribution business, the estimates of their yearly sales was grossing about 1-1/2 million. The 1202 following excerpt from the 5-15-73 issue of the LA Times gives an indication of Bittner's pornography operations at the time: "One of the key witnesses in the second round of indictments was Arthur Pellon, who told the grand jury he was employed as a driver and bodyguard for Suki, Inc. Pellon told the grand jury, in testimony which is now public record, that during the past year he made three different trips to the East Coast with locked briefcases, which he delivered to the Zappis. He testified that those trips to the East began after he overheard one of the managers of Suki, Inc. remark: "We are making plenty of money, we ought to see if we can get some money back to the East Coast." Pellon testified that the other principals of Suki, Inc. immediately told the man to "keep his big mouth shut." Although he never saw the contents of the briefcases, Pellon said he believed them to be full of money. On each of these trips, he said, he was under strict orders from his Los Angeles bosses to keep the briefcases in his hands until he turned them over to the Zappis. Pellon said that his boss in California was William Bittner named in the second indictment. Pellon testified that Bittner intimated that he had Mafia connections and was given "a high ranking position in California as a present" for his service in underworld wars. Pellon also detailed for the jury his work as a collection agent for Suki, Inc. and its predecessor, Pojo, Inc. He was asked by Deputy District Attorney Oretta Sears, 1203 o during the grand jury hearing, what his instructions were with regard to collection of overdue accounts. "Either get the money or a piece of their ass," Pellon said. He said he was sent out on four collections, three of which were settled immediately. "One of them I had to bust up a little bit and then he paid," Pellon said. William Bittner was indicted as the result of an investigation by the Federal Bureau of Investigation for the sale and distribution of obscene, lewd, lascivious and filthy magazines along with Thomas Sinopoli, Peter Sinopoli, Donald Epstein, Jim Rhoat, Samuel Haimowitz, Ronald Foreman and Donald Jacobson. The indictment further indicted that the above individuals unlawfully, willfully and knowingly did conspire to combine, confederate and agree together, with each other and others, and through their use of the Atlantic Magazine Company, Automatic Enterprises, Inc., Suki, Inc., also known as Pojo and as R & M Productions and Age of Majority, Inc., did commit offense against the United States by transporting interstate obscene material. Donald Epstein's-arrests date back to 1971 and includes two arrests for indecent publications, 23 counts for the possession of unregistered guns and for the possession of a machine gun. The key officers in Epstein's corporate structure profile are Donald Epstein, president; Rebecca Crone, vice president; Isabel Kramer, director;and Richard Plummer, 1204 agent for the Automatic Enterprises, Inc., 412 10th St., N.W., Washington, D.C. They hold the same corporate structure for the Automatic Amusement, Inc., T/A Automatic Amusements, 437 9th St., N.W. Washington, D.C., except for Isabel Kramer who is listed as the secretary. Richard Plummer is also the agent for Gem, Inc., T/A Capitol Amusements, 1214 New York Ave., N.W., Washington, D.C., with Henry Reensynder as president. Reensynder is also the owner of Variety Books, 1026 14th St. N.W., Washington, D.C., Rebecca Crone is the vice president and Isabel Kramer the treasurer of the Fine Arts Theater, 633 Main St., Buffalo, New York. Hyman Tash was the registered agent (1956) and Richard Plummer is the registered agent (1970) for the Enterprise Amusements, Inc., 413 9th St., N.W., Washington, D.C., T/A Enterprise Amusements, 521 9th St., N.W., Washington, D.C., and T/A Enterprise Amusement, 502 9th St., N.W., Washington, D.C. Hyman Tash is an officer, Paul Downey, vice president, Henry Levine, current president, C. Ann Henze, treasurer, Daniel Flowers was the president (1976) and Catherine Steele, agent for the United Theaters, Inc., 446 West Federal St., Youngstown, Ohio, T/A Gayety Theater, 508 9th St., N.W., Washington, D.C. Catherine Steele is the agent, Rebecca Crone, vice president, Daniel Flowers, president and James Rhoat, manager of the Automatic Amusements, Inc., T/A Playland, 413 9th St., N.W., Washington, D.C. James Rhoat is also the owner of Seaboard 1205 News, Pt. Pierce, Florida. Henry Levin, C. Ann Henze and Daniel Flowers, previously mentioned as officers of the United Theaters, Inc. are also vice president, secretary/ treasurer and president, respectively along with Joel Hirschhorn as the registered agent for the Florida Literary Corporation, 180 N.E. 79th St., Miami, Florida. Henry Levin is president and Isabel Kramer is secretary of the United Theaters of Florida, Inc., 17745 N.E. 9th Place, North Miami, Florida. Joel Hirschhorn is the registered agent for Miami Bargain Books, Inc., 6020 South Dixie Highway, South Miami, Florida, the Atheneum, Inc., 25 West Flagler St., Miami, Florida, Artistic Books, Inc., 6020 South Dixie Highway, Florida, and the NBF Theaters, Inc., 25 West Flagler St., Miami, Florida. Rory Brown is the president and Barry Brown is a director of Miami Bargain Books, Inc. Rory Brown is the secretary/treasurer, Robert Brown is the president and Fay Brown is the vice president of the Atheneum, Inc. Fay Brown is the secretary and Herbert Brown is the president of the Artistic Books, Inc. Paul Downey is also a director for the NBF Theaters, Inc. On July 23, 1976, indictments were returned on 207 counts of obscenity and conspiracy relating to the operating of Overstock Book Company, Inc., also known as Timely Books, Inc., 519 Acorn St., Deer Park, New York, on Robert Brown and Barry Brown. V. CONCLUSION 1206 The pornography industry is characterized by a vertical distribution and a pyramid structure with a limited number of documented distributors within individual states. Documentation has been obtained to establish that pornographic material is initially supplied to national distributors who then sell to inter-state distributors who, in turn, distribute to intra-state distributors. This limited number of pornography distributors may indicate the lucrative profits in the distributorship and production of pornographic material with the capability of dictating prices to independent bookstore owners. As an example of the high profits involved, the following is provided. A magazine can be produced for approximately fifty cents; wholesaled for five dollars and retailed for ten dollars. This computes to a 1900 per cent profit from production to consumer sale. In general, there is no competition or price wars which indicates price control. If a pornography distributor has control of a distribution network, owned companies that provided peep show projectors, built peep show booths for bookstores, collected the coins from peep show machines from bookstores owned by "straws" on corporate papers and was able to purchase projectors, films, books, etc., wholesale, the profit would e_ven be greater. This profit making mechanism is currently in existence. An example is Bon Jay Sale's organizational profile which 1207 consists of s peep show coin collector business (Alpha Sentura Businesses Services), a carpentry business to build peep show booths (Woodwork, Inc.), a business to repair peep show projectors (Centre Vending Co.) and controls several bookstores in Maryland, Washington, D.C., and North Carolina. Additionally, there are an unrelated number of individuals involved in the sale of pornographic material that are dependant upon inter-state distributors for supplies. This investigation revealed various methods used by pornography entrepreneurs to successfully operate their business and avoid detection by law enforcement. Some of these methods are: 1. Names of corporate officers are used without the individual's knowledge or consent. 2. Notary Publics are employed to notarize signatures without confrontation of signees. i 3. Rubber stamps of signatures are used without the authorizing individual's knowledge. 4. Periodic changing of corporate names. 5. Controllers do not appear on corporate papers but are major stock holders. 6. Pornography entrepreneurs appear as corporate officers for a legitimate business which may have pornography distributors as subsidiaries. 7. Companies owned or controlled by major 1208 distributors deliver pornographic material automatically to their subsidiaries. N VI. RECOMMENDATIONS A. Another conference be held for the purpose of exchanging updated material thereby keeping the joint investigation ongoing and current. B. Criminal financial discrepancies be brought to the immediate attention of the Internal Revenue Service. (Documentation of false invoice payments, skimming, hidden ownership, money laundering operations and bankruptcy frauds.) C. The United States Justice Department be provided with all documentation indicative of violations of monopoly or anti- trust laws. D. A request be made to Congress and state legislators for assistance in exposing organized crime involvement in this industry. E. Members of this joint investigation bring the results of this investigation to the attention of their local prosecutors and request their assistance in local law enforcement effort in obscenity areas. Members should seek cooperation also from local agencies charged with the task of licensing and incorporating pornography outlets to insure applicants comply with the law. F. Assistance be provided to the Federal Bureau of 1209 Investigation in matters involving interstate violations and organized crime involvement. APPENDIX FIVE UNITED STATES DEPARTMENT OF JUSTICE ORGANIZED CRIME INVOLVEMENT IN PORNOGRAPHY JUNE 8, 1977 1210 1211 (j UNITED STATES DEPARTMENT OF JUSTICE June 8, 1977 ORGANIZED CRIME INVOLVEMENT IN PORNOGRAPHY Most of the production and distribution of pornographic material seems to take place on the east and west coasts with the west being dominant. It is thought that as far as films are concerned, about 60% of the production takes place in and around Los Angeles with New York taking second place. Members of La Cosa Nostra (LCN) moved into this lucrative field within the last ten years and their involvement apparently is on the increase. This report, prepared by Intelligence Analyst will discuss LCN involvement in pornography by state. Those states with direct LCN involvement will be mentioned first followed by those with indirect ties to the LCN. California The key organized crime figure involved in production and distribution of pornography in California, and possibly the entire nation, is thought to be Michael Zaffarano, capo in the Galante LCN Family. He is regarded as that family's West Coast representative, although he is known to have dealings with all of the organized crime families involved in the California operations. Zaffarano and his partners, Stewart Charles Segall and Tommy Sinopoli, operate Miracle Film Releasing Corporation in 1212 Hollywood. This company produces and distributes 16mm and 35mm feature films. There are indications that Sinopoli is associated with the LCN DeCavalcante in New Jersey. Zaffarano is also the President of Stu Segall Associates which distributes pornographic films and has offices at 1600 Broadway, Manhattan, and 8564 Melrose Avenue, Hollywood, California. Zaffarano and Stu Segall are the directors of a nationwide organization of "Pussycat" theaters which has theaters in Washington, D.C., Los Angeles, and San Francisco. With Stu Segall and" Norman Arno, Zaffarano is involved in the D.C. Playhouse Ltd. in Washington, D.C. He is the owner and is listed in the corporate records as the President, Treasurer, and Director of the Corporation. Arno and Segall are also listed as Directors of the Corporation. The corporation was formed in 1974 and Zaffarano then subleased the theater to Robert Gage, who operates it with Saul Heller. The pornographic films shown at the D.C. Playhouse are supplied by Zaffarano from New York and Los Angeles, primarily from Stu Segall Associates. Norman Arno also does business in Los Angeles as S & L Distributors, dealing in 8mm films and magazines. Arno has arrests for both local misdemeanor and Federal felony obscenity charges. Zaffarano has also been largely associated with Noel Bloom and Theodore Gaswirth. Noel Bloom, doing business as California International Distributors and Cinema Classics, is a major Los Angeles based distributor of 8mm films. He has been arrested several times on local misdemeanor obscenity charges and has one 1213 (j Federal arrest for Interstate Transportation of Obscene Matter (ITOM) charges which resulted only in a guilty plea by the corporation. Theodore Gastwirth, doing business as T.C. Associates/ is also a major Los Angeles based distributor of 8mm films. He, too, has severai local misdemeanor obscenity arrests. Each of the other main organized crime families in the east has a full time representative on the West Coast. Robert DiBernardo is the representative for the DeCavalcante Family, Thomas Ricciardi for the Colombo Family, and William Haimowitz for the Gambino Family. These representatives give every indication that they are working together in the pornography operations. They are each associated with numerous pornographic •businesses. Thomas Ricciardi has been linked to William Noel Fine who has been active in Los Angeles area pornography. He has operated Fine Films and Billy Fine Productions. William Haimowitz was raised by LCN Gambino member Ettore Zappi and has made statements that Zappi had sent him to California to control or corner the pornography market for that family. DiBernardo is a partner in a pornography operation with Theodore Rothstein. Intelligence indicates that the LCN DeCavalcante furnishes funds to member Frank Cocchiaro who in turn provides financing to DiBernardo and Rothstein. LCN Los Angeles underboss, Aladena Fratianno, is allegedly directing the shakedown of pornography dealers in the Los Angeles area in an attempt to control pornography in Southern California. A Federal grand jury is now investigating the extortion of money 1214 from an undercover FBI pornographic company. The alleged I extorters were Michael Rizzitello (LCN Bonanno member; consideredI Fratianno's right-hand man), Jack Locicero (LCN Los Angeles member), and Thomas Ricciardi, who was mentioned above as the LCN Colombo's West Coast representative. LCN member Pasguale John Antonelli moved to California from New Jersey in 1965 and has prospered from operating massage parlors, pornographic bookstores and movies. Because of his financial success, he is becoming the nucleus of a small band of hoodlums of Italian ancestry who have moved to the area from the Northeast coastal region. Antonelli is known to be involved in pornography in the downtown section of San Diego. It is believed that Tom and Mike Aquilante (who have direct ties with the LCN in Newark and Bridgeport, Connecticut) and Tom and Vincent Campisi all have a common interest in the pornography field. Antonelli is reportedly the major figure of the group and there are numerous fronts for his operations. These individuals are the owners of a concentrated number of store front operations in a four square downtown block of San Diego featuring adult bookstores, peep shows, massage parlors, and hard-core movies. John Aquilante is presently on three years probation for pornography violations. Reuben Sturman of Cleveland, Ohio, though not directly connected to the LCN, is a key figure in the pornography industry and seems to be well-established in California. His operation will be discussed at length in the section on Ohio. The 1215 o following is a list of known West Coast operations which are controlled by Sturman, showing the principals and the type of materials produced and/or distributed. Parliament News, Los Angeles Milton Luros Soft and Hard-Core Magazines Pacific News, Los Angeles Milton Luros Soft and Hard-Core Magazines Lyndon Distributors, Los Angeles Ted Gaswirth 8mm Hard-Core Films Now News, Los Angeles Mike Colella Hard-Ccre Magazines Ewap Inc., Los Angeles Fred Alfuno Soft-Core Magazines Cinema Classics, Los Angeles Noel Bloom • 8mm Hard-Core Films Cline Labs, Los Angeles Richard Sherwin ;Films and magazines published for Sturman KNS Publishing, Los Angeles Richard Sherwin-emerging as Main printer/distributor for Sturman NFM Corporation, Los Angeles Mike Colella Films Mike Colella, operator of Now News and NFM Corporation in Los Angeles allegedly works directly for Sturman and has assisted in his efforts to infiltrate the southern California area. Milton Luros of Parliament News is a major publisher and 1216 distributor of magazines in Los Angeles. He has previously been convicted of misdemeanor obscenity charges. He and Paul Wisner reportedly control a retail bookstore in Sacramento. Luros at one time controlled most of the distribution of books and magazines in the Los Angeles area. His control has dwindled to about 5%. Luros, his corporate officers, and five of his corporations were indicted in the Central District of California for mailing obscene material. The corporations, which are London Press, Inc. Jaybird Enterprises; Parliament News, Inc, Seven Towers, Inc., and American Art Enterprises, Inc. were found guilty. The corporate officers Milton Luros, Beatrice Luros, Robert Accietta, Paul Wisner, and Robert Reitman are awaiting trial. The firms that seem to control the production and distribution of 8mm films in the Los Angeles area are Cinema Classics with Noel Bloom (mentioned earlier as being involved with Michael Zaffarano), and Lyndon Inc. with Theodore Gaswirth. Of particular note in San Francisco pornography is the operation of Artie Jay Mitchell and James Lloyd Mitchell called Mitchell Brothers Film Group, Inc. The Mitchells had always claimed to be free of any organized crime connections, however, in 1974 they were visited by organized crime associates James Bochis and Robert DeSalvo who requested exclusive distribution rights to several of their movies. The brothers were told that unless they agreed, DeSalvo and Bochis would distribute pirated copies of one of the films all over the country, costing the 1217 o ( Mitchells thousands of dollars in revenue. The Mitchells did not agree to this proposal and purchased the pirated copy o£ the film in question from Bochis and DeSalvo. The Mitchells lost thousands on their subsequent production of "Sodom and Gomorrah", which was very expensive to make and turned out to be a failure. Because of this loss of money, the Mitchell brothers entered into contract with Michael Zaffarano in regard to the distribution of their latest film "Autobiography of a Flea". New York The company which distributes most pornographic books, films, magazines, and sexual paraphernalia nationally is Star Distributing Company which is located in Manhattan and is allegedly owned by Samuel DeCavalcante, Boss of the LCN DeCaval- cante. Robert DiBernardo, mentioned earlier as DeCavalcante's West Coast representative, is the main stockholder of the company, having taken over the operation when its president, Theodore Rothstein, was convicted for obscenity. He became the main financier and Vice President. Star Distributors is now considered a multimillion dollar conglomerate that controls bookstores, movie theaters, and publishing houses spreading into New Jersey, Pennsylvania, Maryland, Ohio, and Georgia. A cele- brated client of Star Distributors is Leisure Time, Inc. of Cleveland, believed to be tied to Cleveland Pornographer Reuben Sturman. LCN Gambino member Ettore DeCurtis is a behind the scenes 1218 financier of pornographic literature, films, and homosexual bars. His involvement began four years ago when he financed Edward Mishkin's Wholesale Book Corporation, at 415 East 21st Street, New York, New York, one of the nation's largest producers, manu« facturers, and distributors of pornography. Authorities describe Mishkin as the pornography king in New York. He was arrested on January 5, 1977 with Ralph Borello for selling obscene films to adult bookstores. An individual working at a movie processing firm specializing in X-rated low budget films was hired by OeCurtis to pirate films when necessary. Film makers must pay DeCurtis off or their films are pirated and Wholesale Books distributes them. Anthony Peraino and his brother Joseph, both members of the LCN Colombo, are involved in the production and distribution of hard-core films and are thought to be among the most successful of those involved. In 1975, they were convicted for conspiracy to distribute "Deep Throat." Also indicted was Gerard Damaino Productions. Director Gerard Damaino is currently doing business as Blue Berry Hill Co. and Strawberry Hill Co., 165 West 46th Street, New York, New York, and engaging in the import and export of pornographic films. Herbert Nitke went into partnership with Joseph Peraino shortly after the release of "Devil in Miss Jones" to distribute that film and "Deep Throat" together. Nitke is presently under indictment in Memphis for his complicity in the film "Deep Throat." Joseph Gentile, also a member of the Colombo family, 1219 finances the New York production of pornographic films using legitimate producers as fronts. The late Joseph Brocchini, former member of the Luchese family, was a large-scale pornography seller. He controlled three pornography wholesale firms worth 1.5 million dollars a year and had leases on several of the most lucrative bookstores in Times Square. After his murder, his brother-in-law Alfred (Sonny) Scotti became his undisputed heir in these operations. Assisting him are his brother James, Ralph Borello, and Vincent Borello. A Luchese family rival is Martin Hodas, LCN Colombo associate, who is known as the "Peep Show King" in New York City. He oversees 90% of the peep shows there. He was released in October 1976 after ten months incarceration for income tax evasion. His business, was apparently not hurt by his incarceration. The machines used are owned and operated by East Coast Cinamatics, Inc., owned by Hodas. They are used in New York, Philadelphia, Baltimore, and Atlanta. His real estate firms Island Amusement Corporation or Coast Holding Corporation hold many of the leases on'adult bookstores. Films shown in the machines are often produced, manufactured, or distributed by Hodas1 firms Adult Films Inc. or Dynamite Films Inc. Hodas is forced to pay protection to organized crime in order to operate, but has resisted mob infiltration of his businesses. Cosmo "Gus" Cangiano, LCN Colombo associate, is a well known high volume distributor of pornography, especially films. In 1220 1972, he was convicted of Interstate Transportation of Obscene Matter in the Eastern District of New York and was later fined $10,000 and sentenced to three years incarceration. This was the last Federal conviction for a pornography violation in a New York Metropolitan area court. Florida Anthony Peraino, mentioned earlier as being involved in the production and distribution of pornography in New York, is also involved in the same type of activity in Florida, where he resided until recently. He and his son Louis, aka William Perry, control the Gamecock Theater in Broward County, the corporation for which is American Films, Inc., Ft. Lauderdale. Also involved in the theater are Robert DeSalvo, Robert Bernstein, and Thomas Arnone. Peraino reportedly left Florida recently for Italy, where he is hiding. His operation has allegedly been taken over by Anthony Arnone of Los Angeles, who owns an unknown number of pornographic theaters in Florida. Within the past three years, Ettore Zappi, LCN Gambino member, and his associates Natale Richichi and Robert Dibernardo employed coercion to take over a substantial part of the very lucrative "peep show" machine business in South Florida. This matter has been presented to the Miami strike Force for prosecution under the Hobbs Act. Richichi was operating S.D, Art, Inc. in Hollywood, Florida until April 1976, when he 1221 returned to New Jersey. S.D. Art is owned by Ettore Zappi. Michael Wisotsky took Richichi's place as operator of the business. He is a member of the Wisotsky family which is active in retail pornography sales in the three major counties of South Florida. The group is headed by Myron Wisotsky who is Michael's uncle. Michael is his principle associate in pornography. Myron's brother, Martin, ;is also active in the retail adult bookstore business in Dade County. The Wisotsky group is currently under investigation by the Miami FBI office for violation of the RICO statute. Leonard Joseph Campagno, aka Lenny Camp, is presently believed to be the only 8mm film producer in Miami. He was con victed for felony conspiracy to promote obscene matter or per formance and is currently " serving an 18 month prison sentence. He had formerly photographed and produced both 8mm and 16mm films and sold the negatives to but of Florida pornographers who copied and distributed the materials. It is anticipated that Campagno will resume this type of activity when he is released from prison. William Haimowitz (previously mentioned as the LCN Gambino's West Coast representative) and his brother Samuel are regarded in the Miami area as significant pornography operators. Both brothers are also alleged to be working in Los Angeles for James Fratianno (LCN Los Angeles underboss) and John Dragon. Benjamin Sigelbaum is a former banking official who has been known to set up Swiss bank accounts for organized crime figures. 1222 He also acts as an international courier of monies for organized crime figures. It is believed that he is the financial backer of Bernard Rose's pornographic enterprises. Rose owns the con- trolling interest in three X-rated movie theaters in Dade county which are leased to firms that actually operate them. He owns approximately 600 theaters in the United States. Rose is alleged to front investments for Meyer Lansky in Esquire Theaters. Benjamin Sigelbaum is also an associate of Meyer Lansky. Leroy Griffin, a former Meyer Lansky man, is alleged to be the adult movie king in Miami. He owns and operates several adult theaters the Roxy theater, Pussycat Theater, Paramount Theater, and the Gaiety Theater, all in Dade County. It was recently reported that he is now leasing the 79th Street Theater and the King-Rex Theater from Bernard Rose. Illinois (Chicago) There is little evidence to indicate large-scale production of pornographic material in the area, however, several large distributorships have been identified. The largest is Capitol News Agency at 3400 N. Kedzie, Chicago. The other is allegedly Reuben Sturman of Cleveland and the manager is Neil Traynor, who recently replaced Alan Bloom in that position. Capitol controls approximately 80% of the distribution of pornographic magazines and films in Chicago. It has its own delivery service and provides service for stores the materials are sold to. Local 1223 158-315 Vol. 2, 0 - 86 - 7 ( ) authorities report that Capitol News will provide an individual that wants to open a retail pornographic shop with whatever financial backing that is needed. L & W Distributors and A & A Distributors share the remaining 20% of the Chicago area distribution. L & W is owned and operated by Leo Weintraub, an associate of Chicago organized crime figures. His operation deals almost entirely in the sale of "remainders" which are older magazines sold at greatly reduced prices which therefore return a greater margin of profit. Weintraub also owns several adult retail bookstores, in Chicago, all using the name L & VTAdult Books. A & A Distributors is owned and operated by Anthony DeFalco. He primarily deals in new pornographic films and magazines, but also handles remainders. It is believed that he originated the practice of leasing movie machines used in the showing of "peep shows" in retail adult bookstores. There are nearly 800 peep shows operating in Chicago's adult bookstores most of which are leased from A & A Distributors or Capitol News. A & A operates seven adult bookstores throughout the Chicago area and DeFalco is known to have operated pornography stores as far away as Des Moines, Iowa. The Chicago Police feel that his operation has the greatest potential for growth. A pornographic movie distributorship which has just been started is Chicago Booking Service. It is believed significant because the owner, Patsy Ricciardi, has close ties to the Chicago "Outfit." He was the cousin of the deceased Felix Alderisio, 1224 ! member of Chicago organized crime. He is also associated with Frank Schweihs, suspected hit man and associate of Anthony Spilotro who handles the Chicago Outfit's interest in Las Vegas and is the leader of the younger members of the Outfit. Chicago organized crime member Marshall Caifano allegedly has a vested interest in some pornographic bookstores in Chicago. He is believed to be the owner of a pornographic book store, Peeping Tom Bookstore, on the near north side of Chicago. This j store is fronted for him. Caifano is also alleged to get $500 a week from the Over 21 Bookstore in Chicago which is owned by Reuben Sturman of Cleveland. Owners of the bookstores willingly give protection money to Caifano as a cost of doing business. Caifano is attempting to muscle and organize Chicago area porno graphic theaters, bookstores, and wholesale distributors of porno graphic books and peep show machines. He apparently was assigned the task of obtaining Leo Weintraub's operation, L & W Distri- butors. He now has approximately 25% of that operation. An attempt was made to muscle the Capitol News Agency, but apparently an agreement was reached between the Chicago Outfit and Sturman's group. Instead of actually taking over the bookstores and distributorships, Caifano instituted the collec- tion of a street tax, which is collected by Mike Glitta and Anthony Juliano. Glitta and Juliano operate adult bookstores themselves. Glitta is the street boss for organized crime figure Joe DiVarco. 1225 Massachusetts/Rhode Island In the Boston area, pornographic material is distributed and/or wholesaled by the Imperial Distributing Company in Providence, Rhode Island and by the New England News Company of South Boston, Massachusetts. The Imperial Distributing Company is headed by Kenneth Guarino, who is reputed to have a direct communication with LCN New England boss Raymond L.S. Patriarca. Imperial Distributing Company is a major East Coast distributor with retail outlets in Rhode Island, Worcester, Massachusetts; Springfield, Mass- achusetts; and Boston. As a result of a search at Imperial, indications were found that Guarino made cash payments to a "Mr. Z". It is suspected that "Mr. Z" is Ettore Zappi, LCN Gambino member. Guarino allegedly receives protection from Zappi and has purchased pornography from him in New York. The New England News Company is reportedly controlled by Sovereign News Company of Cleveland, operated by Reuben Sturman. Sturman is involved in New England News with Joseph Paladino. Paladino has financial interests in many of the pornographic cinemas in Boston. Major pornography figure Michael Zaffarano is said to have connections with the pornography business in Boston. His brother-in-law, Anthony Carl Mascolo, received financial backing from Zaffarano in January 1976 in order to open two pornographic theaters in Boston. They are known as the Pussycat Cinema I and 1226 the Pussycat West End Cinema. During a raid at the West End Cinema in January 1977, detectives found secret records in a hidden compartment reflecting that part of the gross receipts were being skimmed. As a result of raids, Mascolo has been arrested twice and charged with violations of state obscenity statutes. He was released recently after serving five days of a one year term. The release resulted from an appeal for his original obscenity conviction. Joseph Paladino allegedly receives a part of the gross of both Pussycat Cinemas. Information was received indicating that Hallmark Releasing Corporation, 46 Church Street, Boston and Judd Parker Films, Inc., same address, are organized crime controlled, although the individuals involved are not known. Both are owned by Phillip Scuderi. He and his associates Stephen G. Minasian and Bobby Goldfarb were involved in smuggling master prints of pornographic films from Europe. Investigation revealed that Hallmark and Judd Parker import between six and ten films per year into Boston. Pennsylvania/New Jersey In the city of Philadelphia and in the South New Jersey area, Radiant Merchandising, Inc. of Philadelphia controls the majority of the pornographic enterprises. It is the principal business operation of Bruno Gortese and Anthony Trombetta. The company has been identified as being associated with the LCN Gambino. Its pornographic material is imported from Los Angeles 1227 and New York City producers. John Krasner, operator of PHK Corporation in Allentown, Pennsylvania, controls the majority of the pornographic business in the Middle District of Pennsylvania (MDPA), southern New York State and New Jersey. He is associated with Russell Bufalino, boss of the upper Pennsylvania area. There is also unsub- stantiated informant information to the effect that Krasner is an associate of Joseph Falcone, LCN Buffalo in Utica, who attended the Appalachian meeting. Krasner owns pornography shops in various New Jersey counties and in Virginia and Colorado. He purchases many of the supplies for these retail outlets from Crown News of Camden, New Jersey, which is a large supplier of pornography, particularly in the South Jersey area. Crown News, owned by Reuben Sturman, is allegedly influenced by the LCN Bruno. It obtains most of its supplies from Sovereign News Company in Cleveland and Crown Industries and Supply Company of Detroit (its parent company). Krasner's general mode of operation is to open a bookstore and utilize a corporation with a fictitious name for the operation of that particular bookstore. His center of operation is Disco Leasing, Incorporated, North 8th Street, Allentown, Pennsylvania, which is a five-story warehouse used by Krasner as the major distribution point for fulfilling orders for his various adult bookstores. Krasner is presently awaiting trial in Arlington County, Virginia for possession of obscene items with intent to distribute in connection with his bookstore there. 1228 Allen Charles Morrow, operating Classic Distributors, has been involved in a running feud with John Krasner for five years about business locations. He also operates in the Middle District of Pennsylvania, Southern New York State and New Jersey. In the Pittsburgh area, the primary distributor of pornographic materials is Majestic News Company, a subsidiary of Sovereign News Company of Cleveland. Majestic News is controlled by Gregory Harry Kocan. It owns and operates ten retail distri- butors in Western Pennsylvania, West Virginia, and Eastern Ohio and also a commercial pornographic theater in downtown Pittsburgh. It also supplies numerous other independent distri butors in Western Pennsylvania, West Virginia and Eastern Ohio. Films that Majestic News receives are ordered through Sovereign News. Michigan It is believed that Harry V. Mohney of Durand, Michigan, is one of the largest dealers in pornography in the United States. Most of the pornography he deals in is of foreign origin. He is alleged to have a close association with the LCN Colombo and the LCN DeCavalcante, both of which are very influential in pornography in the eastern United States. In Michigan, Mohney is known to hire individuals with organized crime associations to manage his businesses. His businesses and corporations consist of 60 known adult bookstores, massage parlors, art theaters, 1229 adult drive-in movies, go-go type lounges and pornographic ware houses in Michigan, Indiana, Illinois, Kentucky, Tennessee, Wisconsin, Iowa, Ohio, and California. He is involved in the financing and production of pornographic movies, magazines, books, and newspapers. He also directs the importation and distribution of his own and other pornographic publications to retail and wholesale outlets throughout the United States and Canada. Mohney purchases all publications that are available from Parliament News in Van Nuys, California and many other firms in California. He has a working relationship with DeCavalcante's representative Robert DiBernardo and has met with Vito Giacalone and Joseph Zerilli of the LCN Detroit. He has to cater to both to operate in Michigan. Mohney is presently under indictment and is to go to trial October 31, 1977. During a search of B & W Distributors, 17311 West 7 Mile Road, Detroit, 544 reels of pornographic film were seized. Silent partners in the business were William Berkowitz and Samuel Norber, both known organized crime figures in the Detroit area. Nicholas Frangoulis was arrested on July 26, 1975 by London, Ontario police for possession with intent to distribute 191 reels of pornographic film which he had taken out of the United States and smuggled into Canada. He is an associate of Detroit orga nized crime figures Louis Ruggirello and Mike Thomas. Frangoulis stated that he was a pornography salesman in Detroit employed by Variety Distributors, Inc., believed to be Variety Books of Durand, Michigan owned and operated by Harry Mohney. 1230 The major wholesaler of pornographic material in the Detroit area is Royal News in Romulus, Michigan, which is a subsidiary of Sovereign News of Cleveland. Royal News is run by Richard Little and Samuel Zerilli, who answer directly to Reuben Sturman. Another large-scale wholesaler is Samuel Ellman who owns or has an interest in Crown Industries and Supply (mentioned earlier as the parent company of Crown News, Camden, New Jersey), Slam Products, and Tiara Industries, all in Detroit. Ellman's partner is Milton Moskovitz, known to be a long time pornographic dealer. Crown Industries and Slam Products are wholesale operations, while the Tiara Company manufactures rubber goods that are then sold to Crown and Slam companies. Maryland (Baltimore) In the Baltimore area, there are three major companies involved in distribution of pornography. They are Bon-Jay Sales, 6601 Moravia Park Drive, Baltimore; Komar, Limited, 1123 East Baltimore Street, Baltimore; and Noble News Company, 7803 Pulaski Highway, Baltimore. Bonjay Sales and Komar Limited are owned and operated by Jack Gresser and Samuel Boltansky, whose two principal aides are John Louis Moon and Ronald Lawrence Selinger. The companies are warehouses used for storing pornographic material which is sold on the retail level throughout the United States and Canada. Gresser and Boltansky distribute about $3,000,000 each year in 1231 o pornographic material. Most of the material they sell is supplied by Star Distributors in New York, Parliament News in California and Sovereign News in Cleveland. Gresser and Boltansky are also allegedly responsible for smuggling original negatives and photo offset printing plates containing pornographic material made in Europe. These items are allegedly smuggled into the United States by mail and then given to the above-mentioned suppliers for printing the material. Noble News Company is a subsidiary of Sovereign News Company in Cleveland. The Baltimore outlet is run by John Henry Marshall, an agency manager. Ohio (Cleveland) The major pornographer in the Cleveland area is Reuben Sturman, owner of the Sovereign News Company there. He is considered to be^the largest distributor in the nation. He, six of his employees and the corporation were indicted in March 1976 in 29 counts for violation of Title 18, U.S. Code, Sections 1461, 1462, and 1465 (interstate transportation and distribution of obscene magazines and films). Despite the indictment, Sturman continues to trans port pornography throughout the United states and the world. Sovereign News Company operates under a large number of corporate names. It obtains various printed material by ordering it from a supplier or having it printed. The ordering is done in 1232 the name of Sovereign News or one of its wholly-owned corpora- tions. It has nationwide operations which appear to be closely allied with organized crime figures in certain areas. The pornographic material is then sold to one of several distributors throughout the United States, which are usually wholly owned subsidiaries of Sovereign News. The material is then sold to the distributors to various retail outlets, usually wholly-owned by the distributors. Sovereign News is reportedly deeply into the "peep show" machine business. It furnishes the machines and films on a percentage basis to various locations. Sturman has attempted in particular to take over control of the peep show outlets in the Los Angeles and San Diego areas. During a search of Sovereign News Company in March 1975, it was determined that the company controls distribution of pornographic magazines and 8mm films in Buffalo; Camden, New Jersey; Pittsburgh; Denver, and other major cities. It was also determined that Sturman received much of his material from Star Distributors in New York. A partial list of companies believed to be subsidiaries of Sovereign News follows: Sun Dial Distributing Co. 2650 West Second Avenue Denver,Colorado Noble News Company 7803 Pulaski Highway Baltimore, Maryland Crown News 1171 Chestnut Street Camden, New Jersey Manager: Joseph Coulter Director & president: Theodore A. Pintepiece Manager, Herman Weiss Directors: Melvin Famins Samuel Joseph Maurice Escott Corporate Officer: Morton A. Goss 1233 Capitol News Company 3400 North Kedzie Avenue Chicago, Illinois New England News Company 215 A. Street Boston/ Massachusetts Royal News Company 30024 Beverly Road Romulus, Michigan Castle News Company • 4551 North 125th Str.eet Butler, Wisconsin Imperial News Company 35 Main Street Depew, New York Majestic News Company 922 West Fourth Avenue Pittsburgh, Pennsylvania Discount News Company 1975 East 65th Street Cleveland, Ohio Candor in Love Institute Post Office Box 6116 Cleveland, Ohio Corporate Officers: Stanley D. Seidler Evelyn Seidler Dick Brown William J. Bowe Jarard Carlin Corporate Officers: Neil Traynor Gary Rosenthal Manager, Richard Little Statutory Agent: Reuben Sturman Manager: Paul Bubrick Manager: Frank Potwora Manager: Greg Kocan Manager: Bernie Wyman Possible Owner: Reuben Sturman Most of the companies listed have been discussed in detail in previous sections of the report under the state in which they are located. In each instance, the company has been one of the major dealers in pornography in that state. This is a further indication of Sturman's importance in the pornography field. Sundial Distributing Company in Denver is recognized on the local and Federal level as being the principal distributor and 1234 wholesaler in the Denver area. It was the subject of an extensive investigation for several years, especially during 1976. The company was traced to Pacific Book Shop, Inc., in Wilmington, Delaware, which had filed application as a foreign corporation to do business in Colorado under Sundial Distri- butors, Inc. It was determined that Sundial Distributing Company is a wholly owned corporate subsidiary of Sovereign News Company. The primary distributor of hard-core pornographic material in Wisconsin is Castle News Company, Inc., Butler, Wisconsin. Castle News directly controls at least 13 retail outlets in Wisconsin and Illinois and also distributes to dozens of other retail out lets in Wisconsin, Illinois, and Iowa. Minnesota is looked upon as a new market for Castle News, and some materials are said to be already arriving there from the Wisconsin Company. Reuben Sturman is the sole owner of Castle News. Paula Bubrick, the agency manager, is assisted by Anthony J. Bucciarecci and Joseph A. Bertucci, who are officers of the company. Porno- graphic materials are received directly from publishing firms on the West Coast or from the Sovereign News warehouse in Cleveland. Two men identified as being associated with Sovereign News, Ralph Leon Levine and Jack Lee Marcum, are principals in operating the Talk of the Town Bookstore and the Peekarama Movie Arcade businesses in Las Vegas. Both men are from Cleveland. There are five adult oriented businesses in Las Vegas and two in Reno that are directly controlled by Levine. All are considered to be associated with Sovereign News. Also in Las Vegas, Jack 1235 Tuppler moved in with hard-core pornography forming his own retail businesses to market his goods. He gets all of the financing for setting up these businesses from Sturman. Between August 1976 and January 1977, five adult bookstores in Des Moines, Iowa, were purchased by a Delaware based corpora- tion named Castle News, Inc. It was determined through local authorities in Cleveland and Cincinnati that these stores were purchased for Sturman by Alan I. Goelman, Management Service Company, Cleveland. He is supposedly the pornographic contact for Sturman. It has been reported that one of the major sources of pornographic material for the Dallas area is Sovereign News Company. Also information has been received that Samuel Joseph, representing Sturman, has been contacting bookstores in Houston, trying to sell hard-core pornography. William A. Gaulson, owner of the Starbase Publishing Company in Houston, is said to get most of his films from California and Cleveland. Sturman is also allegedly involved in distribution of illegally imported hard-core films. The film "Sensations", imported through Texas, was produced in Europe by Alberto Ferro aka Lasse Braun, a known associate of Sturman. This film was distributed nationally by Sturman. Sturman is allegedly responsible for the publication "Lolly Tots", a pornographic magazine featuring children. He is also allegedly involved in producing stag films featuring children that are distributed by Parliament News in California, one of the 1236 largest distributors of this type of pornographic material. Georgia (Atlanta) Michael George Thevis is one of the largest dealers in pornography in the nation. Based in Atlanta, Thevis built a major pornography organization involving the wholesale and retail distribution of pornography. He opened numerous adult movie theaters and bookstores throughout the Southeast, becoming the largest and most successful pornography distributor in that part of the United States. His operations are allegedly controlled by Star Distributing Company in New York (owner Sam DeCavalcante, Vice President Robert DiBernardo, LCN DeCavalcante). Thevis and his corporation, Book Bin, Inc., were convicted in 1971 for mailing obscene material. He began serving a three year sentence in 1975 and is eligible for parole on July 21, 1977. While Thevis is incarcerated, his empire, which at one time consisted of over one hundred businesses, companies, and corporations, is being run by his long-time associate and confidant, Laverne Bowden. The larger corporations making up his empire are Peachtree News Company, Inc., Peachtree National Distributors, Inc.; Pendulum Books; Animatics; Global Leasing, Inc., and Fidelity Equipment Leasing Company, Inc. Melvin Friedman is presently acting as President of Peachtree News Company and other affiliated companies in Thevis'' absence, but 1237 Thevls remains the real power. The Atlanta FBI office is conducting a major RICO investigation concerning Thevis, which is near the indictment stage. Companies controlled by Thevis manufacture and distribute all phases of adult literature and films. The corporations ship merchandise to each of the 50 states as well as to between 12 and 15 foreign countries. A few of Thevis' operations in other states are as follows: Florida Periodicals, Tampa Large-scale distributor/wholesaler Rivergate News Agency, New Orleans Only distributor operating in Louisiana Satellite News Agency, Houston Large-scale wholesaler, local distributor Carolina Book Distributors, Raleigh Thevis subsidiary, distributor hard-core Awaiting grand jury action in Raleigh Tulsa Book Mart, Inc., Tulsa Local distributor .for Peachtree News, Inc. Operator - Don Gasaway This report is submitted for information purposes at this time. A review of the available information is being made for the purpose of recommending a course of action. This recommen- dation will include suggestions made by the attendees at the next NOCPC Pornography Subcommittee meeting. 1238 Chapter 5 Regulation of Pornography—A Historical perspective Historical discussions with respect to pornography are generally found under two separate copies: one is based in moral doctrines and the other has developed through the legal system. Each of these historical developments will be discussed separately insofar as the concepts are unique and such discussion is warranted. The legal perspective surrounding pornography has historically taken the form of criminal obscenity laws. The origins of obscenity law can be traced back to the religious doctrines of ancient civilization. Blasphemy, heresy, and impiety were the basis of charges brought against prominent individuals in Greece during the reign of Pericles.1247 During the reign of Pericles.1248 Plato spoke in favor of restricting writings that told untruths about the gods.1249 Religious restrictions grew as Christianity became more entrenched, and led to the promulgation of the Index Liborum Prohibitorum by Pope 1246 See, 2 Technical Report of the Commission on Obscenity and Pornography, 65 ( 1970) [hereinafter cited a"s"Technical Report]. 1247 id. 1248 „. 1249 1239 Paul IV.1250 works which were prohibited were done so on a religious grounds rather than on the basis of any sexual content. The development of modern obscenity law as it is recognized in the United States began in England. 252 The court of Star I'li.-unber reviewed books diui theater Juriiuj the reign of King Henry VIII and continued until 1640.1253 Restrictions placed on materials were still based largely on religious and political grounds. The focus began to change in 1663 when the British courts were confronted with the situation which arose as the case of King v. Sedley.1254 Tnis case is widely regarded as the first reported obscenity case. Sir Charles Sedley, in an intoxicated state, stood on a tavern balcony, removed his clothes, and delivered a series of profane remarks. At the conclusion of his tirade, he poured bottles filled with urine on the crowd below. Sedley was convicted, fined, and incarcerated for a week. Sedley's case was thus the first involving an offense to public decency as opposed to one against religion or government. 1255 One hundred and fifty years later, it would also be relied on as 1250 id. at 66. 1251 L. Tribe, American Constitutional Law 657 (1978) [hereinafter cited as Tribe].~~ 1252 id. 1253 id. 1254 1 Keble 620 (K.B.), 83 Eng. Rep. 1146 (1663) and 1 Sid. 168, 82 Eng. Rep. 1036 (1663). 1255 Id. 1240 L precedent by the first American court to find obscenity indictable at common law. Public concern over obscenity increased in 17th century England, and in 1708 James Read was indicted for publishing the book The Fifteen Plagues of a Maidenhead. 1257 jhe Queens Bench Court dismissed the indictment against Read for obscene libel in Queen v. Read. 1258 i>ne court found that Read's work was not a reflection on the government, the church, or any individual, and it rejected the idea that libel included obscenity. 1259 Another case of obscene libel-arose in 1727 when Edmund Curll was convicted for publishing Venus in the Cloister or the Nun in Her Smock. In Dominus Rex v. Curll, 1260 the court rejected the doctrine of Read and relied instead on Sedley's Case. The court found corruption of morals to be an offense at common law and thereby established obscenity as a crime. 1261 The crime of obscene libel took root in 19th century England, and was accompanied by the rise of the Society for the Suppression of Vice in 1802. 1262 The Society crusaded against 1256 See, Commonwealth v. Sharpless, 2Serq. & Rawle 91 (1815). 1257 11 Mod. Rep. 142, 88 Eng. Rep. 953 (1708) and Fotescu's Reports 98, 91 Eng. Rep. 777 (1708). 1258 1259 1260 1261 1262 Id. I(J. 2 Str. 789, 93 Eng. Rep. 849 (1727). Id- Id, at 72. 1241 (I obscene publications, and their work culminated in the passage of two important pieces of legislation. The Vagrancy Act of 1824 made publication of indecent pictures a forbidden act and Lord Campbell's Act of 1857 gave magistrates authority to issue search warrants for obscene material and have it destroyed. 1263 since the printing of photographs was not prevalent until the late 1800s, the challenged works consisted mainly of writings, sketches, or line drawings. 1264 The offense of obscene libel was still devoid of any precise definition of what material would be considered obscene. The initial definition was presented in Regina v. Hicklin. 1265 The case involved an anti-religious pamphlet called "The Confessional Unmasked," which detailed the sexual nature of questions posed by Catholic priests during confessions. The trial magistrate, Hicklin, ordered the publication destroyed because of references to intercourse and fellatio. 1266 on appeal, the Quarter Sessions Court reversed Hicklin on the grounds that the publisher's motive was an innocent one despite the obscene content of the writing. 1267 On final appeal, the Queens Bench affirmed Hicklin's initial order and Chief Justice Cockburn fashioned the resulting 1263 ia. 1264 Bland, A History of Book Illustrations, 272 (1958). 1265 L.R. 3 Q.B. 360 (1868). 1266 jd. 1267 Id. 1242 obscenity standard. Cockburn held that the author's intent was irrelevant as long as the work was obscene._ «. °° The work was obscene if it tended to deprave and corrupt minds which are open to such immoral influences and into whose hands the publication may fall. 1269 ^he determination was based on the impact of certain parts of the writing on susceptible individuals. The Hicklin test remained in force in England for 100 years. 1271 The decision in Hicklin also had an affect on American obscenitylaw.1272 American laws concerning pornography also found their origin in sacrilegious works. In 1711, the colony of Massachusetts enacted a statute stating that "evil communication, wicked, profane, impure, filthy, and obscene songs, composures, writings, or prints do corrupt the mind and are incentives to all manner of impieties and debaucheries, more especially when digested, composed or uttered in imitation or in mimicking of preaching or any other part of divine worship." 1273 Tne ^aw prohibited the "composing, writing, printing, or publishing of any filthy, obscene or profane story, pamphlets, libel or mock sermon, in 1268 1269 1270 Massachusetts Id. Id. Technical Report supra note • Tribe, supra note 1250, at 658. , Colony Laws and Province Laws of 1243 imitation of preaching or any other part of divine worship."1274 Despite this enactment, there were no reported obscenity prosecutions until 1815 and the Pennsylvania case of Commonwealth v. Sharpless. 1275 sharpless was charged with showing a drawing depicting a man and woman in a lewd posture. 1276 Like his British counterparts in Read and Cur11, Sharpless contended that there was no statute prohibiting his conduct. The Pennsylvania court relied on Sedley's Case and found crimes against public decency to be indictable at common law. 1277 The first case involving a book alleged to be obscene arose in Massachusetts six years later. 1278 peter Holmes was charged with publishing a lewd illustration along with the book Memories of a Woman of Pleasure. 1279 Relying on both the common law offense and the Massachusetts statute, the Supreme Judicial Court of Massachusetts convicted Holmes. 1280 vjhile the American courts now recognized the common law crime of .obscenity, much of the activity which followed was found in the legislative arena. In 1821, Vermont passed the first obscenity statute in the United States. The statute prohibited the printing, publishing, or 1274 id. 1275 2 Serg. 6, Rawle 91 (1815) 1276 ia. 1277 id. 1278 Commonwealth v. Holmes, 17 Mass. 336 (1821). 1279 id. 1280 id. 1244 vending of any lewd or obscene book, picture, or print.1281 Massachusetts enlarged its colonial statute 1282 gnd other states soon followed. 1283 The first federal law concerning obscene materials was enacted in 1842. The focus of the act was to regulate materials imported into the United States. 1284 It prohibited "all indecent and obscene prints, paintings, lithographs, engravings and transparencies." 1285 The lax enforcement of these statutes after their enactment led citizens and religious groups to take action. Anthony Comstock, a store clerk in New York, took it upon himself to lead the crusade. Comstock and others formed the Committee for the Suppression of Vice and lobbied the Congress to pass tougher obscenity legislation. In 1873, Congress enacted a law governing the mailing of obscene matter. 1286 The Act stated in part that, . . . no obscene, lewd, or lascivious book, pamphlet, picture, paper, print, or other publication of an indecent character, or any article or thing designed or intended for the prevention of conception or procuring of abortion, nor any article or thing intended or adapted for any indecent or immoral use or nature, nor any written or printed card, circular, book, pamphlet, advertisement or notice of any kind giving information, directly or indirectly, where, or how, or of whom, or 1281 1282 1283 1284 1285 1286 Laws of Vermont, 1824, Ch. XXIII, no. 1, S23. Technical Report, supra note 1246, at 74-75. Mass. Rev. Stat. Chr. 310 S10. See, L. Tribe, supra note 1250, at 658. 5 Stat. 556 S28. Technical Report, supra note 1246, at 77. 1245 by what means either of the things before mentioned may be obtained or made, nor any letter upon the envelope of which, or postal-card upon which indecent or scurrilous epithets may be written or printed, shall be carried in the mail, and any person who shall knowingly deposit, or cause to be deposited, for mailing or deliver, any of the hereinbefore-mentioned articles or things, or any notice, or paper containing any advertisement relating to the aforesaid articles or things, and any person who, in pursuance of any plan or scheme for disposing of any of the hereinafter- mentioned articles or things, shall take, or cause to be taken, from the mail any such letter or package, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall, for every offense, be fined not less than five thousand dollars, or imprisoned at hard labor not less than one year nor more than ten years, or both, in the discretion of the judge. I28' Comstock himself became a federal agent and worked to confiscate prohibited material from the mails. In the year immediately following the enactment of what became known as the Comstock Act, Anthony Comstdck claimed to have seized hundreds of thousands of obscene items. 1288 Litigation involving the Comstock Act centered primarily on procedural issues and the authority of Congress to regulate matters as were enumerated in the statute. 1289 As cases began to arise under the obscenity statutes the question of what items constituted obscene materials was addressed using the English precedent of Regina v. Hicklin. In 1287 17 stat. 599, 18 U.S.C. S1461 (1985). 1288 Technical Report, supra note 1246, at 78. 1289 id. 1246 J United States v Bennett, 1290 the Court held that a determination of obscenity based on a portion or excerpt of a work was valid and that its effect would be measured in terms of whether it would corrupt those who might come into contact with it. 1291 in applying Hicklin, the American courts reached varying results as to what materials were obscene under the test. 1292 It was not until the twentieth century that the Hicklin rule began to wane. Judge Learned Hand criticized the Hicklin test in United States v Kennedy. 1293 He questioned whether the treatment of sexual topics should be reduced to the standard found in a child's library. 1294 He aiso fashioned a test for implementing community standards, holding that obscenity must be determined in accordance with the present balance between candor and shame at which the community may have arrived here and now. I295 Twenty years later in United States v. One Book Entitled Ulysses, 1296 Judge Augustus Hand rejected Hicklin and ruled that excerpts of a work could no longer be used to determine obscenity. I29? The court noted that the determination of obscenity must be based on 1290 1291 1292 1293 1294 1295 1296 1297 24 F.Cas. 1093 (C.C.S.D.N.Y. 1879). Id. L. Tribe, supra note 1250, at 658. 209 F. 119 (S.D.N.Y. 1913). £d. Id. 72 F.2d 705 (2d Cir. 1934). Id. 1247 an examination of the dominant effect of the material in 1298question. The Hicklin standard in any form had less than ten years to live when, in 1949, a Pennsylvania state court held that a finding of obscenity must be based on the work's erotic allurement of the average reader. 1299 During the first half of the twentieth century, serious literary efforts were the subjects of obscenity prosecutions. Ulysses by James Joyce was. one such work, although it was not found to be obscene. 1300 Another was An American Tragedy by Theodore Dreiser. The Supreme Judicial Court of Massachusetts found it to be obscene in 1930. 1301 Tropic of Cancer and Tropic of Capricorn, by Henry Miller were both found to be obscene. 1302 The United States District Court heard evidence including eighteen published reviews of Henry Miller's works, fifteen letters, and two affidavits of critics, all attesting to the literary merit of the two books. 1303 Tne court rejected this 1298 id. 12" Commonwealth v. Gordon, 66 Pa. D. & C. 101 (Phila. 1949). 1300 United States v. One Book Called "Ulysses", 5 F. Supp. 182 (S.D. N.Y. 1933), aff'd. in. 72 f.2d 705 (2d Cir. 1934). 1301 ---""^TOMQini. (N.D. Cal. ---- (9th cir. 1953). 1303 99 p. Supp. at 761. 1248 evidence as "immaterial," 1304 and held that portions of the books rendered both obscene. 1305 A claimant on behalf of Tropic of Capr icorn had contended that the portions of the book containing sexual episodes and vernacular expletives with sexual references constituted only thirteen per cent of the total number of pages in the book. 1306 xhe District Court compared this argument to "the excuse of Midshipman Easy's servant girl that her illegitimate child was such a little one!" 1307 The United States Court of Appeals affirmed, and described Miller's works as practically everything that the world loosely regards as sin is detailed in the vivid, lurid, salacious language of smut, prostitution, and dirt." 1308 The Appeals Court reasoned that obscenity, though a part of a composition of high literary merit, is not excepted from operation of the statute." 1309 The Court rejected the evidence of the books literary merit presented below, which it called "opinions of authors who resent any limitations on their writings." 1310 Erskine Caldwell's God's Little Acre was found to be obscene by the Massachusettes 1304 1305 1306 1307 1308 1309 1310 Id. at 763. Id. !!• 208 F.2d at 145. Id. Id. at 147. 1249 o Supreme Judicial Court, 1311 which described the work as abounding in sexual episodes, some of which were portrayed with an abundance of realistic detail. 1312 The trial court heard testimony from literary critics, professors of English literature, and a professor of sociology regarding the literary, cultural, and educational character of the book. 1313 From a sociological perspective, the book was defended as a portrait of poor whites in the old south. 1314 Tj,e Massachusetts high court found the book obscene despite this evidence and concluded that "art can flourish without pornography." 1315 in an obscenity prosecution against The Well of Loneliness, by Radclyffe Hall, the prosecution conceded that the book was a "well written, carefully constructed piece of fiction with no unclean words." 1316 It was praised by men of letters, critics, and artists, according to the court. 1317 Tj^e New york Magistrate's Court still found that the book's tales of lesbian love affairs tended to justify the right of a pervert to prey to "justify the 1311 Attorney General v. Book Named "God's Little Acre", 326 Mass. 281, 93 N.E. 2d 819 (1950). 1312 93 N.E.2d. at 821. 1313 id. 1314 id. 1315 id. 1316 People v. Friede, 233 N.Y.S. 565, 567 (1929). 1317 Id. at 569. 1250 right of a pervert to prey on normal people." 1319 T f. ,. the book obscene, the court stated under the Hicklin standard: It pleads for tolerance on the part of society of those possessed of and inflicted with perverted traits and tendencies, but it does not argue for repression or modificationof insidious impulses. 1319 In 1957, the United States Supreme Court struck another blow against Hicklin and began its formulation of a modern obscenity standard. In Butler v Michigan, 1320 the Court reversed a conviction for a violation of Section 343 of the Michigan Penal Code that prohibited distribution of any material "containing obscene, immoral, lewd, or lascivious language . . . pictures . . . or descriptions tending to incite minors to violent or depraved or immoral acts, manifestly tending to the corruption of the morals of youth." 1321 Speaking for a unanimous Court, Justice Frankfurter ruled that the statute was overbroad and violative of the Due Process clause of the Fourteenth Amendment to the Constitution. 1322 jje stated, "We have before us legislation not reasonably restricted to the evil with which it is said to deal. The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children." 1323 11 * f*1318 1319 1320 1321 1322 1323 Id. 352 U.S. 380 (1957). M- at 381. Id. at !£• at 383. 1251 (v o Butler was significant not only for its specific holding, but it also marked the end of the Hicklin standard. Material was no longer to be determined obscene by measuring the material's effect on susceptible individuals. It also foreshadowed the Supreme Court's landmark pronouncement in Roth v. United States 1324 in 1957. In Roth v. United States, 1325 the Supreme Court defined the scope of the First Amendment in the context of an obscenity case. Roth had been convicted of mailing obscene circulars and an obscene book in violation of federal law. 1326 speaking for the Court, Justice Brennan Upheld the conviction and found the protection of free speech under the First Amendment was not absolute. 1327 jje stated that the First Amendment was not intended to protect every utterance and cited libel, profanity, and blasphemy as examples of unprotected speech. The Court relied on Chaplinsky v. New Hampshire I328 which had excluded "the lewd and obscene [and] the profane" from the category of protected speech. 1329 Thus obscenity was held to be without 1324 354 U.S. 476 (1957). 1325 id. 1326 is U.S.C. S1461. 1327 354 o.s. 476 (1957). 1328 315 u.s. 568 (1942). 1329 354 u.s. at 485, quoting Chaplinksy v. New Hampshire, 315 U.S. 268, 511-72. 1252 First Amendment protection. 1330 Brennan went on to fashion a definition of obscenity, holding that "[ojbscene material is material which deals with sex in a manner appealing to prurient interests." I33i The Hicklin standard was rejected by the Court, with Justice Brennan stating, "The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately dealing with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press." I332 The Supreme Court adopted a test which recognized material as obscene if "to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." I333 por the first time, the Supreme Court had defined obscenity and found it to be without First Amendment protection. In 1966, the Supreme Court had occasion to reexamine its definition of obscenity in Memoirs v. Massachusetts. i334 The case involved a state court determination that John Cleland's book Memories of a Woman of Pleasure was obscene. 1335 writing 1330 1331 1332 1333 IcJ. at 487. Id., at 489. Id. J 1334 383 U.S. 413 (1965). 1335 id. 1253 for a sharply divided court, Justice Brennan stated that three elements must coalesce in order for a book to be found obscene: (1) the dominant theme of the material taken as a whole appeals to a prurient interest in sex. (2) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters. ,(3) and the material is utterly without redeeming social value.1336 In reversing the state court decision, Brennan found that the court had misinterpreted the "social value" part of the obscenity standard. 1337 He said the Massachusetts court "erred in holding that a book need not be worthless before it can be deemed obscene. A book, cannot be proscribed unless it is found to be utterly without redeeming social value." 1338 since the Massachusetts court had found that the book possessed a "modicum" of social value, it was therefore not obscene. 1339 T^e standard enumerated in Memoirs reached only what might be referred to as "hard-core" pornography and led to a period of minimal regulation of obscenity during the years leading up to Miller v. California.1340 By the time Miller v.: California 1341 reached the Supreme 1336 1337 1338 1339 1340 1341 Id. Id_. Id. Id. 413 Id. at 418. at 419. at 419-20. U.S. 15(1973). Court in 1973, the composition of the tribunal had changed significantly. Since the Memoirs decision in 1966, Warren Burger had become Chief Justice and Justices Black, Fortas, and Harlan had been replaced by Blackmun, Powell, and Rehnguist. Miller resulted in the first majority opinion from the Supreme Court on the issue of obscenity since Roth in 1957. Miller had been convicted under the California obscenity statute for mailing unsolicited, illustrated advertisements for "adult" books. 1342 At tne outset of his opinion upholding Miller's conviction, Chief Justice Burger said the Court would undertake to formulate more concrete standards for determining obscenity. i343 Burger pointed out that the standard in Memoirs v, Massachusetts was a mere plurality opinion of three Justices, and veered sharply from the test set forth in Roth. 1344 He rejected the "utterly without redeeming social value" portion of the Memoirs test as requiring proof of a negative, which is "a burden virtually impossible to discharge under our criminal- standards of proof." 1345 This pronouncement marked a major change from prior obscenity cases. Burger noted the Memoirs test now failed to command the support of a single member of the Court. 1346 xhe standard the Court announced in Miller would 1342 1343 1344 413 u.s. 15/ 16(1973). id. at 19-20. Id. at 21. 1345 Id. at 24-25. 1346 Id. at 25. 1254 1255 153-315 vol. 2, 0 - 86 • 8 confine the scope of regulation to works that depict or describe sexual conduct. Further, the sexual conduct must be specifically defined by state law. 1347 The three part standard announced in Miller requires an examination of, (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 230, quoting Roth v. United States', supra at 489; "(b) whethertheworkdepicts 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. l348 The Court also gave an example of the types of sexual conduct that state statutes could define for regulation under part two of the standard. The Court noted that prohibited conduct may involve, (a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. ; (b) Patently offensive representations or descriptions of masturbation, excretory functions, 'and lewd exhibition of the genitals. 1349 Significantly, the Court's opinion in Miller also addressed the issue of "contemporary community standards" and found a national standard to be an "exercise in futility."1350 Burger 1347 id. 1348 id. at 24. 1349 i£. at 25. 1350 id. at 30. 1256 O. reasoned that a question of fact is involved in the application of community standards and that "our nation is simply too big and too diverse for this court to reasonably expect that such standards could be articulated for all fifty states. ..." A local rather than a national community standard would govern the determinations of "prurient interest" and "patent offensiveness." The Chief Justice chided the dissenters in Miller who favored what he referred to as an "absolutist, anything goes view of the First Amendment because it will lighten our burdens." As to the scope of First Amendment protection, the Court added that "[T]o equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom." I35i In a case decided the same day as Miller, the Supreme Court rejected the argument that obscene films are constitutionally immune from state regulation simply because they are exhibited to consenting adults only. 1352 However, the mere private possession of obscene matter cannot be proscribed. 1353 Tne court previously held in Stanley v. Georgia 1354 that the Constitution protects the right to receive information and ideas 1351 Id- at 34. 1352 Paris Adult Theatre I v. Slaton, 413 U.S. 49(1973). 1353 394 u<s> 55733 1354 Id. 1257 o and to be generally free from government intrusion into one's privacy.1355 The Supreme Court's decision in Smith v. United States 1356 clarified that the determination of serious literary, artistic, political, or scientific value is made with reference to a national and not a local standard. I357 in smith, the court found that only the questions of "prurient interest" and "patent offensiveness" are subject to local community standards under Miller. 1358 In Jenkins v. Georgia, 1359 the Supreme Court held that juries do not have "unbridled discretion" in determining questions of "prurient interest" and "patent offensiveness" according to local community standards. 1360 Such determinations are subject to constitutional review. The concept of pornography as a civil rights violation came to the forefront in 1984 when the city of Indianapolis, Indiana, enacted an ordinance "to prevent and prohibit all discriminatory practices of sexual subordination or inequality through pornography." 1361 The Indianapolis ordinance defined 1355 id. 1356 431 u>s- 291(1977). !357 i£. at 301. 1358 id. 1359 418 U.S. 153(1974). 1360 id_. at 160. 1361 Indianapolis & Marion County, Ind. Ordinance 24 (May 3, 1984), amended by Indianapolis & Marion County, Ind. ordinance 35 (June TT7 T5~84T, at S16-1 (b) (8). The city Council in pornography as "the graphic sexually explicit subordination of 1 *1 (Z Jwomen, whether in pictures or in words" iJD* and created a civil remedy for individuals aggrieved by discriminatory practices prohibited by the ordinance. 1363 These practices included trafficking in pornography, coercing a person into a pornographic performance. 1364 The ordinance was promptly challenged and held unconstitutional in American Booksellers Assn. v. Hudnut. The District Court found that the ordinance regulated speech that was entitled to First Amendment protection. 1366 The court then focused on the issue of whether "the state's interest in protecting women from the humiliation and degradation which came from being depicted in a sexually subordinate context is so compelling as to warrant the regulation of otherwise free speech to accomplish that end." 1367 Tne court concluded that it was not and reasoned that women are capable of protecting themselves from being harmed by pornography. 1368 xhe court held that to Minneapolis, Minnesota passed a similar ordinance that was vetoedby the mayor. 1362 id_. si6-3(9). 1363 i£. S16-17. 1364 id_. S16-3 (g) (4)-(7). 1365 598 p. Supp. 1316 (S.D. Ind. 1984). 1366 Id. at 1331-31. 1367 i£. at 1335. 1368 ja. at 1333-34. 1258 1259 ( "deny free speech in order to engineer social change in the name of accomplishing a greater good for one sector of our society erodes the freedoms of all . . . ." 1369 The United States Court of Appeals for the Seventh Circuit affirmed the District Court's decision. 1370 The Court of Appeals accepted the premise of the ordinance that pornography is a systematic practice of exploitation and subordination based on sex which differentially harms women. 1371 The court also said in dicta that, The Section creating remedies for injuries and assaults attributable to pornography . . is salvageable in principle, although not by us. 1372 But the definition of pornography contained in the ordinance was its fatal flaw. The court held, The ordinance discriminates on the ground of the content of the speech. Speech treating women in the approved way in sexual encounters "premised on equality" is lawful no matter how, sexually explicit. Speech treating women in the disapproved way as submissive in matters sexual or as enjoying humiliation is unlawful no matter how significant the literary, artistic, or political qualities of the work taken as a whole. The state may not ordain preferred viewpoints in this way. The Constitution forbids the state to declare one perspective 1369 id_. at 1337. 1370 American Booksellers Ass'n v. Hudnut, 771 F.2d 323(7th Cir. 1985). 1371 id. at 329. 1372 Id. at 333. 1260 right and silence opponents. 1373 The city of Indianapolis appealed to the United States Supreme Court, and on February 24, 1986, the Court summarily affirmed the judgment of the Court of Appeals. 1374 1373 £d. at 325. 1574 Hudnut v. American Booksellers Ass'n No. 85-1090 Slipop. Feb. 24. 1986. 1261 o Chapter 6 First Amendment Considerations The First Amendment to the United States Constitution mandates that, 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. 1375 Sharp differences exist among legal scholars as to the meaning and scope of the First Amendment. The opinions of Supreme Court Justice William 0. Douglas forcefully developed the view that the First Amendment makes the right to free speech absolute. Douglas and other like-minded theorists take the words• "Congress shall make no law" at their literal meaning. In his dissenting opinion in Roth v. United States 1376, Douglas wrote, The First Amendment, its prohibition in terms absolute, was designed to preclude courts as well as legislatures from weighing the values of speech against silence. The First Amendment puts free speech in the preferred position. l^77 Thus, in Douglas' view, the courts and legislatures were prohibited from abridging any form of expression, including the 1375 u.s. const, amend. I. 1376 345 U.S. 476(1957) 1377 Id. at 514. 1263 ( ) most sexually explicit material. In Roth, he quoted prominent First Amendment theorists and wrote, The danger of influencing change in the current moral standards of the community, or of shocking or offending readers, or of stimulating sexual thoughts or desires apart from objective conduct, can never justify the losses to society that result from interferences with literary freedom. 1378 Justice Douglas concluded that, . . if the First Amendment guarantee of Freedom of speech and press is to mean any- thing in this field, it must allow protests even against the moral code that the standard of the day se'ts for the community. 1379 In Miller v. California 1380, Douglas expounded on his theory of broad First Amendment protection. He wrote, The idea that the First Amendment permits government to ban publications that are "offensive" to some people puts an ominous gloss on freedom of the press. That test would make ft possible to ban any paper or any journal or magazine in some benighted place. The first Amendment was designed "to invite dispute," to induce "a condition of unrest," to "create dissatisfaction with conditions as they are," and even to stir "people to anger". Terminiello v. Chicago, the337 U.S. l,-4. Theidea that theFirst Amendment permits punishment for ideas that are "offensive" to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a 1378 Id. at 509-10, citing Lockhart and McClure, Literature, the Law of Obscenity, and the Constitution, 38 Minn. L. Rev., 295, 387(1954). 1379 Id. at 513. 1380 413 u>s. 15(1973). free society. The First Amendment was not fashioned as a vehicle for dispensing tranquilizers to the people. Its prime function was to keep debate open to "offensive" as well as to "staid" people. The tendency throughout history has been to subdue the individual and to exalt the powerof government. The use of the standard "offensive" gives authority to government that cuts the very vitals out of the First Amendment. As is intimated by the Court's opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV, or over the radio. By reason of the First Amendment-and solely because of it-speakers and publishers have not been threatened or subdued because their thoughts and ideas may be "offensive" to some. 1381 The view that the First Amendment provides absolute protection to sexually explicit materials continues to be espoused by strong and vocal advocates. They contend that unfettered freedom of expression will enable the best and most truthful points of view to prevail in society. 1382 Tne p^rst Amendment's protection of speech reaches beyond well reasoned discourse. It includes appeals to the human spirit arid feelings. One proponent has said "sexually explicit material is usually communication that the activity depicted is pleasurable and appropriate. Frankly, it asserts that it is good and healthy for persons in many places and many positions. Obviously this is a doctrine over which there ought to be profound moral debate." 1383 1381 1382 1383 I£. at 44-5. Washington, D.C., Hearing, Id. at 153. 1264 1265 Sexually explicit materials depicting children should also be protected speech in the view of many First Amendment absolutists. While they condemn child abuse, some proponents of absolutist First Amendment theory argue that prohibiting expression in the form of child pornography as the Supreme Court did in New York v. Ferber I384 also does nothing to stop the underlying crimes committed against the children. 1385 some First Amendment absolutists have adhered so rigorously to this principle that they would oppose restrictions on sexually explicit materials even if proof was available to show that the materials promoted sexual violence. 1386 Robert H. Bork, now a judge of the United States Court of Appeals for the District of Columbia Circuit, has criticized what he calls "the insistence of many very intelligent people that the First Amendment is an absolute." 1387 He writes that, [djevotees of! this position 'insist, with a literal respect they do not accord other parts of the 'Constitution, that the Framers commanded complete freedom of expression without governmental regulation of any kind. The first amendment states: "Congress shall make no law . . . . abridging the freedom of speech . . . ." Those who take that as an absolute must be reading "speech" to mean total absence of governmental restraint. 1384 458 o.S. 747(1982). 1385 Washington, D.C., Hearing Vol. II, Barry Lynn, p. 185- 1386 Chicago Hearing, Vol. I, Jane Whicher, p. 222-23. 87. R.H. Bork, Neutral Principals and Some First Amendment Problems, 47 Ind. L. Rev. 1, 21(1971). 1266 Any such reading is, of course, impossible. Since it purports to be an absolute position we are entitled to test it with extreme hypotheticals . Is Congress forbidden to prohibit incitement to mutiny aboard a naval vessel engaged in action against an enemy, to prohibit shouted harangues from the visitors' gallery during its own deliberations or to provide any rules for decorum in federal courtrooms? Are the states forbidden, by the incorporation of the first amendment in the fourteenth, to punish the shouting of obscenities in the streets? No one, not the most obsessed absolutist, takes any such position, but if one does not, the absolute position is abandoned, revealedas a play on words. 1388 Other constitutional law scholars have offered non- absolutist arguments which would Support First Amendment protection for adult pornography. C. Edwin Baker has proposed what he calls the "Liberty Model" of First Amendment protection, i389 According to Baker, this model equates First Amendment protection with the entire realm of individual liberty excluding only coercive or violent action. 3 ° Baker rejects as too narrow the notion that First Amendment protection should be afforded only to speech that aids in the discovery of truth. 1391 speech is an important component of self-fulfillment. I392 Speech that serves to entertain or 1388 id. 1389 c. Baker, Scope of the First Amendment Freedom ofSpeech, 25 UCLA L. Rev. 964, 990( 1978) . id. at 960. I£. at 990. Id. at 992-93. 1267 1391 I392 amuse the speaker or listener has value as a means of self-full fillment even though it may not communicate significant ideas or advance the search for truth. 1393 Baker finds this value sufficient to merit First Amendment protection. Vincent Blasi has argued in favor of broad First Amendment protection as a means of ensuring individual autonomy for members of society. 1394 Blasi points to Justice Brandeis statement in Whitney v. California 1395 that "those who won our independence believed that the final end of the State was to make man free to develop their faculties . . . they valued liberty both as an end and as a means. They believed liberty to be the secret of happiness." 1396 According to Blasi/ The basic idea here is not that speech leads to truth or a stable society;or some other social value, but rather that certain speech activities are valuable because they are integral to the process by which persons consciously ;: choose from among alternatives, a process which is regarded as valuable in and of itself because it figures prominently in our vague notions of what it means to be human. 1397 Blasi asserts that individuals retain a basic minimum of choice making capability, they cease to be individuals any more.13*8 1393 id. 1394 Blasi, The Checking Value in First Amendment Theory, 1977 American Bar Foundation Research Journal 521, 544(1977). 1395 274 U.S. 357(1927). 1396 id. at 375. 1397 v. Blasi, supra, at 544. 1398 Id. at 547. 1268 Thus First Amendment protection extends not just to political speech but to speech that appeals to human spirit and feelings. 1399 Another justification for broad First Amendment protection advanced by Blasi is diversity. If expression is unregulated, individuals may freely receive stimulation from diverse reading and listening fare. I400 This is essential to human happiness, apart from any search for truth. 1401 Blasi writes, Even the venerable metaphor of the marketplace of ideas may have continuing force if a market is thought of not so much as a site where prices are determined and purchases made, but rather as a place where people gather to browse, to taste, and tocommingle aimlessly. 1402 Blasi finds the social conseguences of unregulated expression as likely better than the conseguences of regulation. Geoffrey Stone advances an argument similar to Baker's regarding "self-fulfillment." Stone contends that, the very fact . . . that there is a vastmarket in our society for sexually explicit expression suggests that for many people, this type of speech serves what they believe to be, it may be amusement, it my be containment, it may be sexual stimulation, it may be fantasy, whatever it is, many of us believe that this expression is to our own lives, in some way, valuable. That value 1399 Id. at 545. 1400 Id. at 550. 1401 Id. 1402 Id. 1269 should not be overlooked. 1403 Stone contends that certain types of speech may seem offensive or immoral to some, the "marketplace" referred to by Blasi is the forum for confronting them as opposed to eliminating them as a matter of law. Stone says, What is not;appropriate, in our free and democratic society, is for government to prohibit expression because that expression may lead individuals into holding views or morals or attitudes that the majority disliked. The way to combat that in our society was; not to suppress the speech because we don't like the moral standards they may promote. It is rather, to try to convince our vcit'izens, in the marketplace of ideas, that there are better moral standards and there are better modes of moral behavior. That is the tradition of this country and the tradition of the First Amendment. It seems to me any regulation of obscenity on the ground it may be immoral, is simply incompatible with our constitutional and non-constitutional positions of free expression. 1404 Despite the fervent efforts of its advocates, the theory that the First Amendment affords protection to all forms of expression has over the years found favor with only a small minority on the United States Supreme Court. The Court has consistently held that certain types of speech either fall outside the protection of the First Amendment or are protected but subject to regulation. For example, so called "fighting words" which by their very utterance inflict injury or tend to incite an immediate breach of the peace may be prohibited in the 1403 Chicago Hearing, Vol. I, Geoffrey Stone, p. 163-64. 140* Id. at 167-68. 1270 interest of public order. 1405 Defamatory material about public figures is unprotected by the First Amendment if the publisher has either a knowledge of its falsity or a reckless disregard for the truth. 14°6 In addition, commercial speech or advertising may be regulated in order to prevent commercial fraud or deception.1407 Advocacy of the use of force or violation of the law may be proscribed only where it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." 1408 Tne supreme Court has emphasized the requirement of imminent lawless action before the speech can be curtailed. 1409 The question of whether obscenity is protected speech under the First Amendment first reached the Supreme Court in 1957 with the landmark case of Roth v. United States. 1410 in his opinion for the majority. Justice William Brennan said "this Court has always assumed that obscenity is not protected by the freedom of see 1405 Chaplinsky v. New Hampshire, 315 U.S. 568(1942)? But ---, Cohen v. California, 403 U.S. IS (1971); (holding that speech which is merely offensive, i.e. jacket with printed words "Fuck the Draft", is entitled to full First Amendment protection). !406 New York Times v. Sullivan, 376 U.S. 254(1964). 14°7 See, Bigelow v. Virginia, 421 U.S. 809(1975). 1408 Brandenburg v. Ohio, 395 U.S. 444, 447(1969). 1409 See, Hess v. Indiana, 414 U.S. 105, 109(1973). 1410 354 0>Si 476(1957). 1271 speech and press." 14U Brennan wrote that, All ideas having even the slightest redeeming social importance - unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion - have the full protection of the guarantees, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. 1412 The principle that obscenity is excluded from First Amendment protection was restated by the Court in Miller v. California 1413 in 1973. In Miller, Chief Justice Warren Burger wrote, "This much has been categorically settled by the Court, that obscene material is u npr o t ec ted by the F i r s t Amendment." 1414 (emphasis added.) The Supreme Court's rationale in Miller was consistent with earlier precedent regarding the First Amendment value of obscenity. Chief Justice Burger said in Miller that "to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom." 1415 1411 id. at 481. 1412 i<j. at 484-85. 1413 413 o.s. 15(1973), 1414 i<j. at 23. 1415 id_. at 34. 1272 In Paris Adult Theatre I v. Slaton, 1416 decided the same day as Miller, the Court expounded further on the exclusion of obscenity from constitutional protection. The Court found the right to privacy protects the personal intimacies of the home, family, marriage, motherhood, procreation and child bearing. 1417 It does not encompass the right of an individual to watch obscene movies in a place of public accommodation. 1418 The Court also distinguished the prevention of unlimited distribution of obscenity from exertion of control by the state over reason and the intellect. Chief Justice Burger wrote, Where communication of ideas, protected bythe First Amendment, is not involved, the mere fact that, as a conseguence, some human "utterances" or "thoughts" may be incidentally affected does not bar the state from acting to protect legitimate state interests. 1419 The Court cited legitimate state interests at stake in stemming the tide of commercialized obscenity. 1420 These include, The interest of the public in the eguality of life and the total community environment, the tone of commerce in the great city centers, and possibly the public safety itself. 1421 The Court also quoted former Chief Justice Earl Warren's opinion 1416 4!3 o.s. 49(1973). 1417 Id. at 66. id. Id. at 67. jd_. at 57. 1421 Id. at 58. 1273 in Jacobellls v. Ohio, 1422 where he declared there is a "right of the nation and of the states to maintain a decent society . . ." 1423 As early as 1942, the Supreme Court held that lewd and obscene speech "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." 1424 And in Roth, the Court found that historically, [t]he protection given speech and press was fashioned to assure unfettered inter- changed of ideas for the bringing about of political and social changes desired by the people." 1425 Thus the Supreme Court has found that what Chief Justice Burger called "[tine public portrayal of hard-core sexual conduct for its own sake and for the ensuing commercial gain," I426 is far removed from the free and beneficial exchange of ideas that the First Amendment was designed to protect. In Young v. American Mini-Theatres, 1427 justice John Paul Stevens drew the same distinction and salx), Moreover, even though we recognized that the 1422 378 U.S. 184(1964). 1423 id,, at 199. 1424 ~-,:.^..*~ Hampshire,, 315 U.S. 568, 571-72(1942). 1425 354 U.S. 484. 1426 413 U.S. 35. 1427 427 U.S. 50 (1976). 1274 First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate that inspired Voltaire's immortal comment. Whether political oratory or philosophical discussion moves us to applaud or to despise what is said, every school child can understand why our duty to defend the right to speak remains the same. But few of us would march our sons and daughters off to war to preserve the citizen's right to see "Specified Sexual Activities" exhibited in the theatres of ourchoice. 1428 Obscene materials lack cognitive content and are more closely akin to sexual conduct as opposed to the communicative process. The sole purpose of the material is to provide sexual gratification to the reader or viewer. Other commentators have gone one step further, and they have contended that constitutional protection should be accorded only to speech that is explicitly political. 1429 one scholar calls the "heart and soul" of the First Amendment the preservation of "our process of self government from legislative encroachment by guaranteeing to each citizen freedom of political speech and by guaranteeing to the press freedom to publish essentially what it will about the government." 1430 Tne united States Supreme Court 1428 Id. at 70. 1429 R. H. Bork, supra, note 1258, at 20; Washington, D.C., Hearing, Vol. II, Lillian BeVier, p. 213-14. 214. 1430 Washington, D.C., Hearing, Vol. !i, Lillian BeVier, p. 1275 has yet to adopt this interpretation. 1431 To be obscene and without First Amendment protection, material must meet the three part test enunciated in Miller v. California. 1432 ^he Miller standard involves the determination by the fact finder of whether. The average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest . . . depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and . . . whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. 1433 In Miller, the Court also gave examples of the types of sexual conduct state statutes could define for regulation under the second prong of the test. 1434 They include: patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. 1435 When the issue of child pornography reached the Supreme Court in 1982, 1436 tne justices unanimously upheld the 1431 See, Roth v. United States, 354 U.S. 476, 487-88(1957). 1432 413 o.s. 15(1973). 1433 id, at 24. 1434 jcU at 25. 1435 ia. 1436 New York v. Ferber, 458 U.S. 747(1982). 1276 C) constitutionality of a New York statute which prohibited sexual 1437performances by children that were not obscene under Miller. The Court carefully enunciated the greater leeway it accorded the states in regulating child pornography 1438 and found tne value of expression that depicts children engaged in sex acts as "de minimus" and far outweighed by the evils of child abuse and exploitation. 1439 Tne court reaffirmed the Miller formulation for obscenity, 1440 5ut foun(j it inapplicable to child pornography because its standards do not serve to protect minors depicted in pornographic materials. 1441 Child pornography joined the category of speech that lacks any protection under the First Amendment, and once again the Supreme Court found "speech" whose value was outweighed by other considerations. The Miller test for obscenity has been in existence for thirteen years, giving the Supreme Court, along with federal and state courts, ample opportunity to interpret its component parts. The Supreme Court has said that "average person" as used in the Miller standard "means what it usually means" and is no less clear than "reasonable person" used for generations in other 1437 id_. at 750-51. 1438 jd. at 756-62. 1439 Id. at 762. !440 itj. at 755. 1441 id, at 761. 1277 contexts. 1442 Material must be judged by its impact on the average person, "rather than a particularly susceptible or sensitive person - or indeed a totally insensitive one;" 1443 and rather than "the most prudish or the most tolerant" 1444 person. Children are•not included within the concept of the "average person" unless they are the intended recipients of the material in question. 1445 The Supreme Court has reasoned that a jury trying to define the "average person" by whose standards obscenity is determined "would reach a much lower 'average1 when children are a part of the equation than it would if it restricted its consideration to the effect of allegedly obscene materials on adults." 1446 The Supreme Court found in Miller that while First Amendment limitations on the powers of the states do not vary from community to community, there should be no fixed national standards as to what appeals to the prurient interest or what is patently offensive. 1447 Tne Court said an attempt to ascertain a national community standard would be an "exercise in futility"1448 1442 Pinkus v. United States, 436 U.S. 293, 300(1978). 1443 Miller v. California, 413 U.S. 15, 33(1973). 1444 smith v. United States, 431 U.S. 291, 304(1977). 1445 436 u.S. at 297-98; See also, Ginsberg v. New York, 390 U.S. 629(1968). id. at 298. 1447 410 U.S. at 30. Id. 1278 and resolved that, "It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York City." 1449 In Miller, the Court upheld the trial Court's instruction that the jury evaluate the material in question with reference to the contemporary standards of the state of California. 145 while a statewide community standard was approved in Miller, it was not mandated. 1451 in ascertaining the community standards, children again are not to be included in the community. 1452 Moreover, the fact that a state law fails to regulate distribution of obscene material to adults is not a conclusive determination of community standards for that jurisdiction. 1453 The "local community standards" formulation of Miller is applicable to all federal prosecutions for obscenity. I454 The prosecution is not normally required to offer evidence of the contemporary standards of the community in their jurisdiction at trial. 1455. the materials, if "hard core," may 1449 Id. at 32. 1450 Id. at 33-34. 1451 See, Hamling v. United States, 418 U.S. 87(1974); Jenkins v. Georgia, 418 U.S. 153(1974). 1452 See, Pinkus v. United States, 436 U.S. 293(1978); United States v. Bush, 582 F.2d 1016 (5th Cir. 1978). 1453 Smith v. United States, 431 U.S. 291(1977). 1454 Hamlinq v. United States, 418 U.S. 87(1974). id. 1279 speak for themselves. 1456 However, prosecutors have encountered some problems in bench trials when they offered no evidence of the relevant community standards. 1457 Tne trial judge may rely on his own experience to decide what the community standards are and whether the material in question violates them. If the judge possesses little or no knowledge of the community's views, he may turn to the government's evidence and if none has been offered, he or she may be relegated to a finding that the prosecution has failed to sustain its butden. 1458 Contemporary community standards may be proven by expert testimony based upon properly conducted public opinion polls taken in the relevant areas. 1459 Evidence of the availability or lack of availability of comparable materials may also be used to show that the material in question enjoys a reasonable degree See, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56(1973). 1457 see. United States v. Obscene Film, Cards. & Magazine, 541 F.2d 8rST9th Cir. 1976) ;United States v. 2200 Paperback Books, 565 F.2d 566(9th Cir. 1977); United States v. Various Articles, 709 F. 2d 132 (2d Cir. 1983TT and United States v. Various Articles, 750 F.2d 596(7th Cir. 1984). 1458 United States v. Various Articles, 709 F.2d 132, 136(2d Cir. 1983). 1459 See, United States v. Various Articles, 750 F.2d 596(7th CirrT984); Carlock v. Texas, 609 S.W.2d 787(Tex. Crim. App. 1980); Commonwealth v. Trainor,~~374 N.E.2d 1216(Mass. 1978). People v. Thomas,346 N.E.2d 190(111. 1976); People v. Nelson, 410 N.E.2d 476(111. 1980); See generally, Zippo v. Rogers, 216 F. Supp. 670(S.D.N.Y. 1963); Randy's Studebaker v. Nissan, 533 F.2d 510(10th Cir. 1976). 1280 o of community acceptance or that it does not. 1460 one state court has admitted lay opinion testimony as to community standards, where the witness was properly qualified based on knowledge of and experience with community attitudes. I461 The federal appeals courts have upheld geographic definitions of "community" to include the state, 1462 federal judicial district 1463 or county. 1464 when the issue of which community's standard applies in a given case arises, the federal appeals courts have applied the standards of the situs of the trial 1465 and the site from which the material in question was mailed. 1466 T>ne fact that distributors of obscene materials may be subjected to different community standards in the various federal judicial districts does not render any of the federal obscenity statutes unconstitutional, 14*>7 Finally, state courts have upheld geographic definitions of 1460 United States v. Manerite, 448 F.2d 583(2d Cir. 1971); United States v. Various Articles, 750 F.2d 596(7th Cir. 1984); United States v. BattisTa^646 F.2d 237(6th Cir. 1981); United States v. Petrov, 747 F.2d 824(2d Cir. 1984). 1461 Louisiana v. Short, 368 So. 2d 1078(La. 1979). 1462 United States v. Danley, 523 F.2d 369(9th Cir. 1975). 1463 United States v. Dachsteiner. 518 F.2d 20(9th Cir. 1975). 1464 United States v. Baqnell. 679- F.2d 826(llth Cir. 1982)cert, denied 103 S. Ct. 1449. 1465 United States v. Sandy, 605 F.2d 210(6th Cir. 1979). 1466 United States v. Thomas, 613 F.2d 787(10th Cir. 1980); United States v. Lanqford, 688 F.2d 1088(7th Cir. 1982. 1467 Hamling v. United States. 418 U.S. 87(1974); United States v. Bagnell, 679 F.2d 826(llth Cir. 1982). 1281 "community" to include the state, 1468 county, 1469 city 1470 Or "local community." 1471 While the application of local community standards is an important component of the Miller standard, juries do not have "unbridled discretion" in determining questions of "prurient interest" or "patent offensiveness." 1472 The Supreme Court has stated emphatically that, It would be wholly at odds with this aspect of Miller to uphold an obscenity conviction based upon a defendant's depiction of a woman with a bare midriff, even though a properly charged jury unanimously agreed on a verdict of guilty. 1473 In Jenkins v. Georgia, 1474 the Court reversed an obscenity conviction based upon the motion picture "Carnal Knowledge." The 1468 Pierce v. State,; 296 So. 2d 218(Ala. 1974); People v. Better, 337 N.E.2d 272(111. 1975); Commonwealth v. 767 Main Corp., 357 N.E.2d 753(Mass. 1976); People v. Colqud, Inc., 437 N.E.2d 1140(N.Y. 1980) (held error to instruct on county standards); LaRue v. State, 611 S.W.2d 63(Tex. Cr. App. 1980); Slaton v. Paris'Adult Theatre I, 201 S.E.2d 456(Ga. 1973); State v. Motion Picture"^ 547 P.2d Cal. App. 2d 789, 73 Cal. Rptr. 587(1968). 1469 State v. DePiano, 375 A.2d 1169(N.J. 1977); Davison"v. State, 288 So. 2d 483(Fla. 1973); Brazelton v. State, 282 So. 342(Ala. Cr. App. 1973) ;' Sedelbaner v'. Indiana,! 428 N.E.2d 206(lnd. 1981), cert, denied 455 U.S. 1035. 1470 People v. Ridens, 321 N.E.2d 264(111. 1974) cert. denied 421 U.S. 993; City of Belleville v. Morgan, 376 N.E.2d 704(111. 1974). 1471 price v. Commonwealth, 201 S.E.2d 798(Va. 1974), cert. denied 419 U.S. 902. 1472 Jenkins v. Georgia, 418 U.S. 153, 160(1974). 1473 I£. at 161. 1474 418 U.S. 153(1974). 1282 Court found that, despite the jury determination, the movie did not depict sexual conduct in a patently offensive way. The Court restated the principle enunciated in Miller, that "no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive, 'hard-core' sexual conduct . . . ." 1476 The "prurient interest" prong of the Miller test has caused considerable confusion. In Roth v. United States, i477 the Supreme Court held that "obscene material is material which deals with sex in a manner appealing to prurient interest." 147° jn lengthy footnote which followed, the Court cited the following definitions of "prurient interest": i.e., material having a tendency to excite lustful thoughts. Webster's N e w International Dictionary (Unabridged, 2d ed., 1949) defines prurient, in pertinent part, asfollow: ". . .Itching; longing; uneasy with desire or longing; of persons, having itching, morbid, or lascivious longings; of desire, curiosity, or propensity, lewd. ..." Pruriency is defined, in pertinent part, asfollows: ". . .Quality of being prurient; lasciviousdesire or thought. ..." See also, Mutual Film Corp. v. Industrial Comm'n, 236 U.S. 230, 242, where this Court 1475 I£. at 161. 1476 Id_. at 160, citing 413 U.S. 15, 27(1973), 1477 354 u>s> 476(1957). 1478 Id. at 487. 1283 o said as to motion pictures: ". . .They take their attraction from the general interest, eager and wholesome it may be, in their subjects, but a prurient interest may be excited and appealed to I I I ." (emphasis added.) We perceive no significant difference between the meaning of^bscenity developed in the case law and the definition of the A.L.I., Model Penal Code, ®207.10(2) (Tent. Draft No. 6, 1957), viz.: "... A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex- or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters . . . ." See Comment, id., at 10, and the discussion at page 29 et seq. 1479 In Miller, the Court reaffirmed the prurient interest requirement without further elaboration or definition. 1480 The Supreme Court has also ruled that when materials are intended for a clearly defined deviant sexual group prurient interest may be measured by the appeal of the material to that particular group. 1481 The federal appeals courts have not strayed far from the definitions cited in the Roth footnote. 1482 state court 1479 1480 413 at n.20 24(1973). 1481 Mishkin v. New York, 383 U.S. 502(1965); See also, Hamling v. United States, 418 U.S. 87(1973); Jenkins v. Georgia, 418 U.S. 153(1973); United States v. Petrov, 747 F.2d 824 ( 2d Cir. 1984); Sedelbauer v. State, 455 N.E.2d 1159(1983). 1482 See, Flying Eagle Publications v. United States, 273 F.2d 799(lst Cir. 1960) (unwholesome or unhealthy interest in sex, it is material which portrays sex with a looselipped 1284 interpretations have also used very similar language to define 1 A ft "\"prurient interest." -140-* The Supreme Court's most recent pronouncement on the prurient interest standard was in Brockett v. Spokane Arcades, Inc., 1484 in June of 1985. A Washington sensuous leer.); United States v. 35 MM Motion Picture Film, 432 F.2d 705 (2d Cir"1970) (characterized By Eire "leer o~f the sensualist," debasing, shameful or morbid quality in expression or depiction of human sexuality); United States v. Keller, 259 F.2d 54(3d Cir. 1958) (itching, longing, uneasy with desire or longing, lascivious thoughts, lustful desires.); Penthouse International Ltd, v. HcAuliffe, 610 F.2d 1353(5th cTFI1980) (shamefulormorbidinterestTn nudity, sex or excretion.); United States v. Langford, 688 F.2d 1088(7th Cir. 1982) (appeal toamorbidinterest asdistinguished from a candid interest.); Eastman Kodak Co. v. Hendricks, 262 F.2d 393(9th Cir. 1958) and Childs v. State of Oregon, 431 F.2d 272(9th Cir. 1970) (inciting lascivious thoughts, arousing lustful thoughts.). 1483 See, State v. LeWitt, 222 A.2d 579(Ct. App. Conn. 1966); City of Chicago v. Universal Publishing and Dist. Corp., 34 111.2d 250,215 N.E.2d 251(1966); Attorney General v. Book Named John Cleland's Memoirs of a Woman of Pleasure,349 Mass. 69, 206 N.E.2d 403(1965) , rev'd on other grounds, 383 U.S. 413(1966); People y. Spee7~, 5~2111. App. 203, 367 N.E.2d 372(1977) (shameful,morbid interest in nudity, sex, or excretion); City of Phoenix v. Fine, 4 Ariz. App. 303, 420 P.2d 26(1966) and Andrews v. State, 639 S.W.2d 4(Tex. App. 1982) (morbid or shamefulinterestin nudity, sex or lewdness going substantially beyond customary limits of candor in description or representation of such matters); State v. Little AA Corp., 191 Neb. 448, 215 N.W.2d 853(1974) and People v. Ciampa, 394 N."?.S.2d 727(1977) (tending to incite lasciviousness,and lasciviousness is defined as tending to arouse sexual desires); State v. Great American Theatre Co., 327 Kan 633, 608 P.2d 9511(1980) TarT unhealthy, unwholesome, morbid degrading and shameful interest in sex.); Spry v. State, 156 Ga. App. 74, 274 S.E.2d 2(1983) (material which appeals to prurient interest is material which has tendency to excite lustful thoughts.); State v. Barrett, 292 S.E.2d 590(S.C. 1982) (shameful or morbid interest in nudity, sex or excretion and is reflective of an arousal of lewd andlascivious desires.) 1484 105 S. Ct. 2794(1985). 1285 state statute 1485 regarding "moral nuisance" defined "lewd matter" in a manner synonymous with "obscene matter." 148° The statute's definition of "obscene matter" tracked the Miller standard, 1487 but included a definition of "prurient" as "that which incites lasciviousness- or lust." 1436 The United States Court of Appeals for the Ninth Circuit found the entire statute unconstitutional. 1489 The Appeals Court ruled that a definition of the word "lust" necessarily encompassed "healthy, wholesome, human reaction common to millions of well adjusted persons in our society, not shameful or morbid desire." I490 The Court therefore found the statute prohibited material protected by the First Amendment. 1491 The United States Supreme Court reversed and remanded. The Court reaffirmed the definition of "prurient interest" contained in Roth. 1492 in his opinion for the Court Justice Byron VJhite stated, The Court of Appeals was aware that Roth had indicated in footnote 20 that material appealing to the: prurient interest was "material having a tendency to excite lustful 1485 wash. Rev. Code S7.48A. 010 e_t se£. 14S6 id_. at S7.48A. 020(2) (a). 1487 id. 1488 i£. at 7.48A.010(8). 1489 JR Distributors, Inc. v. Eikenberry, 725 F.2d 482(9th Cir. 1984). 1490 ia. at 492. 1491 id. 1492 105 S.Ct. at 2798-99 1286 thoughts" but did not believe that Roth had intended to characterize as obscene material that provoked only normal, healthy sexual desires. We do not differ with that view. 1493 Justice White went on to conclude that the Court was "quite sure that by using the words 'lustful thoughts' in footnote 20, the Court was referring to sexual responses over and beyond those that would be characterized as normal." 1494 While the Supreme Court agreed with the Appeals Court's construction of the prurient interest standard, the Court found that the Court of Appeals erred in declaring the Washington statute facially invalid. 1495 The Supreme Court found partial rather than facial invalidation to be the proper course and held that the statute should have been invalidated only insofar as the word "lust" be understood as reaching protected materials. 1496 The extent to which Brockett v. Spokane Arcades, clarified the meaning of "prurient interest" may be .debated. The Court seems to have excluded normal, healthy sexual desires - whatever they are - from the definition of "prurient interest." Material must also lack serious literary, artistic, political or scientific value in order to be obscene. 1497 in 1493 Id_. at 2799. 1494 i^ 1495 Id_. at 2801. 1496 Id. at 2802. 1497 413 U.S. at 25. 1287 158-315 Vol. 2, O - 86 - 9 Kois v. Wisconsin, 1498 the Supreme Court reversed the obscenity conviction of a publisher of an underground newspaper. The newspaper contained an account of the arrest of a photographer for possession of obscene material, and criticized law enforcement officials for their handling of the case. Included in the article were two pictures described as similar to those seized from the photographer. The picture depicted "a nude man and nude woman embracing in a sitting position." 1500 The requirement of serious value necessitates the court review the material as a whole. If the material, as a whole, conveys a literary, artistic, political, or scientific idea or message, it possesses the requisite value. 1501 if it appears that the publisher of the material has tried to redeem or "dress up" otherwise obscene matter, sold and distributed for its obscene contents rather than for its ideas or message, then the value is not serious. 1502 ^s the Supreme Court reasoned in Kois, "[a] quotation from Voltaire on the flyleaf of a book will not constitutionally redeem an otherwise obscene publication." 1503 in Kois, the Court found the publication was not a "mere vehicle for the publication of the pictures," and 1498 408 U.S. 229(1972). 1499 Id. at 229-30. 1500 ja. at 230. 1501 413 u.S. at 24. 1502 408 U.S. at 231. 1503 Id. that the picture were rationally related to the article about the photographer. 1504 The courts have distinguished cases involving "sham" publications which include some form of literature in an attempt to save the rest of the material in them from being declared obscene. 1505 Tne determination is not difficult to make in cases of hard core pornography. 1506 On two occasions/ federal courts have found that Penthouse magazine lacks serious value. 1507 Tne sarae result was reached in a case involving the movie "Deep Throat." 1508 Federal courts have found serious value contained in Playboy Magazine 1509 an(j ^n ^ne movie "Last Tango in Paris." 151° The determination of serious literary, artistic, political, or scientific value is not made with reference to local community 1288 jd. at 230-31. 1505 see,.United States v. Merrill, 746 F.2d 458(9th Cir. 1984); United States v. Various Articles, 536 F. Supp.50(S.D.N.Y. 1981). 1506 See e ,g., State v. J-R Distributors, 512 P.2d 1049(Wash. 1973) ("Bedplay" and "E-Jac" Magazines). 1507 Penthouse International v. McAuliffe, 610 F.2d 1353(5th Cir . 1980) (January , 1978 issue ) ; Penthouse International v. Webb, 594 F. Supp. 1186(N.D. (TTI1984) (September,1984issue). But see, State v. Walden Book Co., 386 So.2d 342(La. 1980) (finding the June, 1980 issue of Penthousehad serious value). 1508 United States v. One Reel of Film, 481 F.2d 206(lstCir. 1973). ~ ~ ~ 1509 Penthouse International v. McAuliffe, 610 F.2d 1353(5th Cir. 1980) (January 1978 issue). 1510 United States v. Gladwell, 373 F.Supp. 247(N.D. Ohio 1974). 1289 standards. 1511 This prong of the Miller test embodies the First Amendment protection of unpopular or distasteful opinions or ideas, and is thus "particularly amenable to appellate review."1512 This is in contrast to the determination of "appeal to the prurient interest" and "patent offensiveness". In Miller, the Supreme Court found that there can be no "fixed, uniform national standards of precisely what appeals to the 'prurient interest1 or is 'patently offensive'." 1513 The Court clearly found these elements of the Miller standard subject to local community standards, leaving the question of serious literary, artistic, political, or scientific value to be determined by a national standard. 1514 California retains a standard that requires a court to find material "utterly without redeeming social value" in order to be obscene. 1515 under that formulation the material need only possess a modicum of social value to be protected speech. 1516 Under either Memoirs or the Miller standard, expert 1511 smith v. United States, 431 U.S. 291, 301(1977). 1512 Id_. at 305. 1513 Miller v. California, 413 U.S. 15, 30(1973). 1514 431 U.S. at 301, citing F. Schauer, The Law of Obscenity, 123-24 (1976). 1515 See, People v.^ Enskat, 109 Cal. Rptr. 433, 33 Cal.3d 900(1973), "GTS, cert, denied 418 U.S. 937. The Governor of California has signed Senate Bill 139 which amends the state obscenity statute as of January 1987. The new law contains a requirement of "significant literary, artistic, political, educational, or scientific value." 1516 gee, Memoirs v. Massachusetts, 383 U.S. 413(1966). 1290 testimony may be used to demonstrate the value of a given publication or film. * In the thirteen years since the Miller standard was announced by the Supreme Court, federal and state courts have consistently followed the mandate expressed in Miller that no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard-core1 sexual conduct. 1518 See, United .Artists v. Gladwell. 373 F.Supp. 247(N.D. Ohio 1974) ; ""Commonwealth v. 707 Main Corp., 357 N.E.2d 753(Mass. 1976). - *L- U.S. at 27; See, Hamling v. United States, 418 U.S. 87 (1974) (advertising brochure containing full page of pictures portraying heterosexual and homosexual intercourse, sodomy and a variety of sexual acts); United States v. Gower, 503 F.2d 189(D.C. Cir. 1974) (photos and films which showed nude males and females engaged in explicit sexual intercourse, fellatio, cunnilingus and masturbation); United States v. Alexander, 498 F.2d 934(2d Cir. 1974) (photos with no text that depicted fellatio, cunnilingus and sodomy); McKenzie v. Butler, 398 F.Supp. 1319(W.D. Tex. 1975) (movie "Deep Throat"); United States v. Various Articles, 460 F.Supp. 826(S.D. N.Y. 1978) (film of two naked teenage boys enaging together in oral and anal intercourse and masturbation, which had no plot, point or message and displayed no acting or directoral skills.); Penthouse v. McAulif f e, 610 F.2d 1353(5th Cir. 1980) (January, 1978, "Penthouse", including "2 photos in which the naked woman has her finger inserted in the lips of her genitals so that it contacts her clitoris . . . [an] expression consistent with masturbation. . ." also letters with descriptions of "hard core" sexual acts.); United States v. Friedman, 506 F.2d 511(8th Cir. 1974) (magazine with photos depicting men and women in heterosexual and homosexual acts including intercourse with penetration, oral intercourse, fellatio, cunnilingus, and masturbation); Miller v. United States, 507 F.2d 1100(9th Cir. 1974), cert, denied. 95" S.Ct. 2620(1975) (magazine "The Name is Bonnie11 with 45 nude photos depicting and emphasizing female sex organs); United States v. Miller, 455 F.2d 899, 505 F.2d 1247 (9th Cir. 1972, 1974) (photos of male genitals and close-ups of female genitals, descriptions of bestiality, lesbian activities, incest and sodomy between man and woman); United States v. Pryba, 502 F.2d 39KD.C. Cir. 1974) cert, denied. 95 S.Ct. 815 (1975), (film of nude men and women engaged in homosexual and heterosexual acts); United 1291 States v. Homack, 509 F.2d 368(D.C. Cir. 1974), cert, denied. 95 S. Ct. 2644(1975} (magazines containing photographs showing young boys posed in a manner which highlights and emphasizes their exposed genitalia in full or partial erection ... in many instances the position of the boys indicates that oral or anal sodomy is imminent); Weissbaum v. Hannon, 439 F.Supp 873(N.D. 111. 1977) (S & M photos of naked people whipped and bound; women in chastity belts with invitations for sex; ads for cock rings and humiliation collar, detailed articles about 15 year old boy initiating 12 year old girl to sex and bondage); United States v. American Theater Corp. 526 F.2d 48(8th Cir. 1975)(movie depicting men and women engaged in heterosexual and homosexual intercourse, cunnilingus, masturbation and depicting semen spread on women's bodies) Penthouse Int. Ltd, v. Webb, 594 F.Supp. 1186(N.D. Ga. 1984) (Sept. &, Oct. 1984 "Penthouse", including photos of women in varying degrees of nudity, photos of lesbian sexual activity and masturbation, columns "Penthouse Forum", "Women's Forum" and "Call Me Madam" detailing various sexual acts.); Pierce v. State, 244 S.E.2d 589(Ga. 1978) (magazine pictures of persons exhibiting genitalia and engaging in various forms of sexual activities both homosexual and heterosexual.); State v. American Theater Corp., 230 N.W. 2d 209(Neb. 1975) "Deep Throat."Heterosexual,intercourse, group sex, explicit penetration, fellatio, cunnilingus, female masturbation and sodomy, seminal e jaculat iori, sex scenes with only minor interruption.); Slaton v. Paris Adult Theater I, 201 S.E.2d 456(Ga. 1973) (movies depictingsimulatedintercourse and fellatio.); Dyke v. State, 209 S.E.2d 166(Ga. 1974) (movie "Devil in Miss Jones."Individual and group acts of intercourse, fellatio, cunnilingus with;camera focusing on genitals.); New York v. Buckley, 307 N. E.2d 805(N.Y. 1973) "Screw" magazine. Photos of heterosexual arid homosexual sex with genitals prominently and lewdly displayed, movie review with worth being determined by degree of male erection is it likely to induce, ads for sex paraphernalia and personal ads.); Harlow v. City of Birmingham, 296 So.2d 202(Ala. Ct. Cr. App. 1974) (magazines with every page depicting nude males and females in intercourse, fellatio, cunnilingus, sodomy, including group sex. Lurid stories including "I was Raped by a Black and Now Refuse Abortion", "I Carried My Father's Child", "Smoking Pot Changed My Sex Life."); Herman v. Arkansas, 512 S.W.2d 923 (Arkansas 1974) (movie "Deep Throat"); Burns v. State, 512 S.W.2d 928 (Ark.1974) (magazine photos of nude female involved in heterosexual and homosexual oral breast manipulation with others. Photos of sex acts with no less than three nor more than eight persons depicted in each photo.); Kaplan v. United States, 311 A.2d 506 (D.C. App. 1973) (peep show depicting naked female shamelessly displaying genitals and breasts and close-up shots with use of banana to simulate sex and oral sex.); Trans-Lux Corp. v. State ex. rel. 1292 in ward v. Illinois, 1519 ^ Court upheld Qbscenity convictions based on two publications depicting sadomasochistic sexual acts. The defendant had contended that these types of acts were not enumerated in Miller as possible patently offensive depictions of specifically defined sexual conduct. 152° The Court ruled in Ward that the sexual acts mentioned in Miller were merely examples and not intended as an exhaustive compilation of the sexual acts whose depiction, if patently offensive, is subject to regulation. 1521 Sweeton, 366 So. 2d 710(Ala. 1979) (film "The Opening of Misty Beethoven." Numerous scenes of explicit sexual conduct between members of the same sex and members of the opposite sex including cunnilingus, intercourse, masturbation and fellatio in repetitive displays.); McKinney y. City of Birmingham, 296 So.2d 197(Ala. 1973) (films graphically depicting nude men and women with their genitals fully exposed in poses and activities involving actual sexual intercourse, fellatio and cunnilingus between both males and females and other sexual activities); Illinios v. Ridens, 282 N.E.2d 691(111. 1972), cert, denied. 95 S.Ct. 2000(1975) (magazines showing nude men andwomen in seductive embraces, posed with their legs spread so as to focus on their genitals); North Carolina v. Horn, 203 S.E.2d 36(N.C. 1974), cert, denied. 95 S.Ct. 238 (magazines depicting both males and nude females engaged in both bi-sexual and homosexual sex play, nude males and females showed in various positions in copulation and nude males and females engaged in cunnilingus and fellatio.); North Carolina v. Bryant, 203. S.E.2d 27(N.C. 1974), cert, denied. 95 S. Ct. 238(films showing actual acts of sexual intercourse, fellatio and cunnilingus performed by and between human male and human females); Washington v. J-R Distributors Inc., 512 P.2d 1049(Wash. 1973), cert, denied. 418 U.S. 949(1974) (magazines "Bed Play" and "E-Jac" containing photos graphically depicting unclothed males and females engaged in acts of masturbation, sexual intercourse, fellatio and cunnilingus.); Garcia v. State. 633 S.W.2d 611 (Tex. App. 1982) (magazine entitled"Bestof Cum". Front and back covers displaying full page photographs of male ejaculating onto nude females and containing 100 pages of photographs depicting nude males ejaculating onto females.). 1519 431 U.S. 767(1977). 1520 Id. at 773. 1521 Id. J 1293 { While the overwhelming majority o£ cases finding material to be obscene have dealt with depictions of patently offensive "hard-core" sexual conduct, descriptions of the same conduct by words alone may also be legally obscene. In Kaplan v. California, 1522 tne gupreme court upheld an obscenity conviction based on a book called Suite 69 which had a plain cover and some sexually explicit 1 anguage.i528 In Jenk ins v . contained no pictures, consisting, 1523 Tne court described the book as entirely of repetitive descriptions of physical, sexual conduct, "clinically" explicit and offensive to the point of being nauseous. 1524 The content of the book was "unvarying" and included "almost every conceivable variety of sexual contact, homosexual and heterosexual . . . ." 1525 chief Justice Burger wrote in Kaplan; When the Court declared that obscenity is not a form of expression protected by the First Amendment, no distinction was made as to the medium of the expression. 1526 The Court concluded that [olbscenity can, or course, manifest itself in ... the written and oral description of conduct."1527 Materials found not to be obscene under Miller frequently depict nudity without explicit sexual activity or merely contain 1522 413 U-Si 115(1973). 1523 id. at U6. !524 id. at 116-17. 1525 id. at 117. 1526 id. at 119. 1527 id. 1294 Georgia, 1529 Tne supreme Court reversed an obscenity conviction involving the motion picture "Carnal Knowledge". The Court noted that the film appeared on many "Ten Best" lists for 1971 and received generally favorable reviews from critics. 1530 one of the actresses in it received an Academy Award nomination. 1531 The Court quoted one review of the film which described the plot as the story "of two young college male, roommates and lifelong friends, forever preoccupied with their sex lives." 1532 The Court cautioned that under Miller, juries do not have "unbridled discretion" in determining what is patently offensive or appeals 1528 See> united States v. Huffman, 502 F.2d 419(D.C. Cir. 1974) (Collection of photos of two females engaged in undressing, caressing, fondling, and embracing each other. In many of the photos the subjects were nude.); Penthouse v. McAuliffe, 610 F.2d 1353(5th Cir. 1980) (January 1978 "Playboy" magazines); Salvail v. Nashua Board of Education, 469 F.Supp. 69(D.N.H. 1979) ("Ms. Magazine. " Some fiction articles "offensive", but containing materials of interest to researchers of feminist view point); Right to Read Committee v. School Committee, 454 F.Supp 703(D. Mass. 1978) (Poem entitled "The City to a Young Girl" which included words "pussy" and "cunt". The court found the language to be "tough" but not obscene.); Hunt v. Keriakos, 428 F.2d 606(lst Cir. 1970) cert, denied. 400 U.S. 929 (photos of female anatomy with no sexually explicit activities); United States v. Central Magazine Sales Limited, 381 F.2d 821(4th Cir. I9t>7) (photo magazines containing nude photos including some Attorney, 282 A.2d 126(Md. 1971) (nude young males with genitals prominently displayed); State v. Cardwell, 539 P.2d 169(0r. App. 1975) (entertainment guide with ads for adult book stores, texts and pictures promoting "Sexy Saunas", photos of nude women retouched with black markings on breasts and genitals) State v. Walden Books, 386 So. 2d 342(La. 1980) (Penthouse Magazine) . 1529 418 o.S. 153(1974) . 1530 at 158. 1531 Id_. at n.5. 1532 Id. at 158. 1295 to the prurient interest, and restated the proposition that obscenity under Miller only encompasses materials that "depict or describe patently offensive "hard-core" sexual conduct . . . .M 1533 Tne court went on to describe "Carnal Knowledge," finding that, While the subject matter of the picture is, in a broader sense, sex, and there are scenes in which sexual conduct including "ultimate sexual acts" is to be understood to be taking place, the camera does not focus on the bodies of the actors at such times. There is no exhibition whatever of the actors' genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standards. l534 The Court held that "Carnal Knowledge was "simply not the "public portrayal of hard core sexual conduct for its own sake, and for the ensuing commercial gain'" which Miller proscribes. 1535 AS a matter of constitutional law, the film did not depict sexual conduct in a patently offensive way. 1536 In Erzoznik v. City of Jacksonville, 1537 the Supreme Court found unconstitutional a Jacksonville, Florida, ordinance prohibiting the showing of films containing nudity by a drive-in movie theatre where the screen is visible from a public street or place. The ordinance specifically proscribed any motion picture 1533 id. at 160, quoting 413 U.S. 15, 27(1973). 1534 Id. at 161. 1535 id. 1536 id. !537 422 U.S. 205(1975). 1296 depicting "the human male and female bare buttocks, human female l c o Qbare breasts, or human bare pubic areas. ..." in Erzoznik, the Court concluded that, The ordinance is not directed against sexually explicit nudity, nor is it otherwise limited. Rather, it sweepingly forbids display of all films containing any uncovered buttocks or breasts, irrespective of cpntextor pervasivenesTT Thus IT would bar a film containing a picture of baby's buttocks, the nude body of a war victim, or scenes from a culture in which nudity is indigenous. The ordinance also might prohibit newsreel scenes of the opening of an art exhibit as well as shots of bathers on a beach. Clearly all nudity cannot be deemed obscene even as to minors. 1339 (emphasis added) However, the Miller standard may be adjusted to prohibit materials on the basis of their appeal to minors even if they are not obscene to adults. i540 in Ginsberg v. New York, 1541 the Supreme Court considered whether it was constitutionally impermissible for the state of New York to accord minors under age seventeen a more restricted right than that assured adults to determine for themselves what sexual material they may read or see. 1542 Tne defendant was convicted of selling two "girlie" magazines to a sixteen year old boy. 1543 1538 Id. at 207. 1539 Id. at 213. 1540 Ginsberg v. New York. 390 U.S. 629(1968). 1541 id. 1542 Id. at 636-37. !543 id. at 631. 1297 The Court found that these magazines were not obscene for adults. 1544 The Court upheld the constitutionality of New York statute recognizing both the authority of parents to direct the upbringing of their children and the state's interests in the well-being of its youth. 1545 As of 1970, forty-one states had enacted some type of special prohibition regarding the distribution of sexual materials to minors. Eighteen of these statutes were either identical or similar to the New York law upheld in Ginsberg. 1546 Pandering is the "business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of [its] customers." 1547 jn Ginzburg v. United States, the Supreme Court held that "where the purveyor's sole emphasis is on may be decisive in the determination of obscenity." 1548 Pandering is neither a separate crime nor an element of the offense of obscenity. It need not be included in the indictment for obscenity. 1549 it is, however, relevant evidence to be 1544 Id. at 634. 1545 Id. at 639-40. 1546 2 Technical Report of the Commission on Obscenity and Pornography, 45-52(1970). 1547 Ginzburg v. United States, 383 U.S. 463, 467(1966), quoting Roth v. United States, 3~54 U.S. 476, 495-96(1957} (Warren, C.J., concurring). 1548 383 U.S. 463, 470(1966). 1549 United States v. Palladino, 475 F. 2d 65(lst Cir. 1973); United States v. Ratner. 502 F.2d 1300(5th Cir. 1974). 1298 considered. 1550 In Ginzburg, the defendant sought mailing privileges in Intercourse and Blue Ball, Pennsylvania, on the basis of the salacious appeal of these names. The Court noted that "advertisements for the publication in question openly boasted that the publishers would take full advantage of what they regarded [as] an unrestricted license allowed by law in the expression of sex and sexual matters. 1552 xne court found that this evidence reinforced the government's claim that the magazine was obscene. 1553 The courts generally, have found various types of evidence to constitute pandering including sensational advertising, 1554 the name of the theater showing the movie in question, 1555 motion picture previews, 1556 the use of indiscriminate mailing lists, 1557 the types of books available in the store where the publication in question was purchased, 1558 and the use of a peep show booth to show a motion 1550 Hamling v. United States, 418 U.S. 87(1974); Pinkus v. United States, 436 U.S. 293(1978). 1551 383 U.S. 467. 1552 I£. at 468. 1553 Id. at 471. 1554 United States v. Ratner, 502 F.2d 1300(5th Cir. 1974); United States v. Dos"ET 575 F.2d 1303(10th Cir. 1978); United States v. Gundlach, 345 F. Supp. 709(W.D. Pa. 1972). 1555 People v. Sarnblad, 26 Cal. App. 3d 801, 103 Cal. Reptr. 211(1972) (movie shown at the "Por-No" theatre). 1556 State v. Boyd, 300 N.E.2d 752(0hio App. 1972); New Riviera Arts Theatre v. State, 412 S.W.2d 890(Tenn. 1967). 1557 Miller v. U.S., 431 F.2d 655(9th Cir. 1970). 1558 Orito v. State, 191 N.W.2d 763(Wisc. 1972). 1299 ( picture. 1559 courts have also found some evidence does not constitute pandering, including mere advertising, I560 a iewa or enticing cover on a publication, 1561 references to other books by the same publishers, 1562 a high price 1563 and warnings concerning the sexually explicit nature of the material. 1564 Evidence of pandering is relevant to the "literary, artistic, political or scientific" value prong of the Miller standard. 1565 In Ginzburg, the Supreme Court found that "The circumstances of presentation and dissemination of material are equally relevant to determining whether social importance claimed for material in the courtroom was, in the circumstances, pretense or reality - 1559 Sanza v. State-Bd. of Censors, 226 A.2d 317(Hd. 1967); Hewitt v. State Bd. of Censors, 254 A.2d 203(Md. 1969). 1560 people v. Bloss, 201 N.W.2d 806(Mich. 1972); People v. Mature Enterprises, Inc.~343 N.Y.S.2d 911(1973); Luros v. United States^3~5"9F. 2d 200 (8th Cir. 1968) (nudist magazines not advertised as erotica); United States v. Pelliqrino, 467 F.2d 41(9th Cir. 1972) (book, "Woman:Her SexualVariations and Functions" with explicit color photos of female qenitalia advertised as containing knowledge of female sexual response for benefit of adults. 1561 Books Inc. v. United States, 388 U.S. 449(1967) reversing 358 F.2d 935(lst Cir. 1966); United States v. Baranov, 418 F.2d 1051(9th Cir. 1969); Childs v. Oregon"; 401 U.S. 1006(1971), reversing per curium 431 F.id 272(9th Cir. 1970); Redrup v. New Vork, 3a6 TJ75. VfeV(l967) (covers "Lust" and "Shame Agent6) . 1562 Aday v. United States, 388 U.S. 447(1967) reversing 357 F.2d 855(6th Cir. 1966). 1563 Potomac New Co. v. United States, 389 U.S. 47(1967) reversing 373 F.2d 635(4th Cir. 1967). 1564 United States v. Stewart, 377 F.Supp. 299(E.D. Pa. 1971); City of Rochester v. Carlson. 202 N.W.2d 632(Minn. 1972); State v. Lebovitz, 202 N.W.2d 648(Hinn. 1972). 1565 Splawn v. California, 431 U.S. 595(1977). 1300 whether it was the basis upon which it was traded in the marketplace or a spurious claim for litigation purposes." I566 The circumstances of sale, distribution and commercial exploitation of a work for prurient appeal may thus be considered in determining whether a work has serious value. 1567 Aside from consideration of the Miller standard, there are several other important facets of obscenity law. Obscenity statutes must contain a requirement of scienter or guilty knowledge on the part of the violator. 1568 Tne defendant need not possess actual knowledge that the material is legally obscene, 1569 nor must he be of the opinion that it is obscene. 157° It is only necessary that the individual have knowledge of the general nature or character of the material. 1571 Scienter may be proved by circumstantial evidence!572 and it may be sufficient that the accused had reason to know of 1566 383 U.S. 470. 1567 Splawn v. California, 431 U.S. 595(1977). 1568 Smith v. California, 361 U.S. 147(1959). 1569 See, Henley v. Wise. 303 F.Supp. 62 (N.D. Ind. 1969); People v. Tannahill, 38 111. App. 3d 767, 348 N.E.2d 847(1976); People v. Finkelsteln, 9 N.Y.2d 342, 174 N.E.2d 470(1961). 1570 see, Hamling v. United States, 418 U.S. 87(1974); See also. United States v. Harks. 364 F.Supp. 1022 (E.D. KY. 1973), a£fd 520 F.2d 913 (6th Cir. 1975), rev'd on other grounds. 430 U.S. 188(1977). 1571 Rosen v. United States, 161 U.S. 29(1969). 1572 Hamlinq v. United States, 418 U.S. 87(1973); Mishkin v. New York, 383 U.S. 502(1966); People v. Finkelstein. 9 N.Y.2d ^Jv1?4 N<E-2d 470(1961); State v. Buroun. 384 N.E.2d 255(0hio 1978) (knowledge of character or nature ot obscene material is constitutionally adequate indication of scienter and preciseknowledge is not required). 1301 the contents of the material or that the circumstances were such that would put him on inquiry, 1573 The Supreme Court has recognized that, Eyewitness testimony of a bookseller's personal knowledge of a book hardly need be a necessary element in proving his awareness of its contents. The circumstance may warrant the inference that he was aware of what a book contained, despite his denial. 1574 In Mishkin v. New York, 1575 the court found the following circumstantial evidence of scienter to be sufficient: . . .appellant's instructions to his artists and writers; his efforts to disguise his role in the enterprise that published and sold the books; the transparency of the character of the material in question, highlighted by the titles, covers, and illustrations; the massive number bf obscene books appellant published, hired others to prepare, and possessed jfor sale; the repetitive quality of the sequences and formats of the books; and the exorbitant prices marked on the books 1576 "amply show(s), that appellant was 'aware of the character of the material1 and that his activity was "not innocent but [a] calculative purveyance of filth." 1577 Two recent state court decisions provide further insight into the type of evidence that is sufficient to prove scienter. In Beier v. State, 1578 the court upheld the conviction of an 1573 smith v. California, 361 U.S. 147(1954); People v. Rode, 57 111. App. 3d 649, 373 N.E.2d 605(1968); Peters v. StateT 44~5~N.E.2d 311(Ind. App. 1983). 1574 smith v. California, 361 U.S. 147, 154(1959). 1575 383 O.s. 502(1966). 1576 i<j. at 5ii_i2. 1577 id. 1578 68i s.w.2d 124(Tex. Cr. App. 1984). 1302 "adults only" pornographic outlet manager where the evidence showed that he removed money from the cash register, that the store was stocked with large quantities of sexually explicit films and magazines, and that he had in his possession a memorandum instructing store clerks to or not to cooperate with vice officers. 1579 And, in Commonwealth v. Croll, 1580 the court found that the jury could reasonably infer that the defendant was aware of the character of the material sold to police officers where he was seen instructing another individual on the use of the cash register, acted in a supervisory capacity during sales transactions, and was able to answer specific questions about the availability of various items in the stores.1581 The evidence also showed that placards posted on the doors to the peep show booths gave notice of the nature of the films shown inside. 1582 Use of fictitious names or destruction of records also may be evidence of scienter. 1583 Moreover, if the defendant is a corporation, scienter may be established by proof of knowledge on the part of officers or directors. 1584 proof of scienter may be difficult where "sham" corporations are used and•corporate records contain names of individuals who actually possess no 1579 id_. at 126 and 128. 1580 48o A.2d 266(Pa. 1984). 1581 id. at 271. 1582 jd. 1583 United States v. Battista, 464 F.2d 237(6th Cir. 1981). 1584 states v. American Theatre Corp., 244 N.W.2d 56(Neb. 1976). 1303 o knowledge of the business or its operations. Similar problems also may be encountered in prosecutions brought against absentee owners or other individuals not observed on the business premises. Obscenity statutes must be carefully drafted to avoid encompassing protected speech. A statute which prohibits both protected and unprotected speech will be struck down for being overbroad. 1585 in Butler v. Michigan, 1586 the Supreme Court reversed a conviction under a Michigan statute prohibiting the distribution of materials "tending to incite minors to violent or depraved or immoral acts, manifestly tending to the corruption of the morals of youth." I58' These materials were unlawful even if sold to an adult. The Supreme Court found the statute to be overbroad because it prohibited the dissemination of materials to adults that may be harmful to minors but not to adults. 1588 A New York statute governing the licensing of motion pictures was struck down as overbroad by the Supreme Court in Kingsley International Pictures Corp. v. Regents. 1589 The 1585 See, Ginsberg v. New York, 390 U.S. 629(1968); United States v. Thevis. 484 P.2d 1149(5th Cir. 1973); Volkland v. State, 510 S.W.Zd 585(Tex. App. 1974); State v. Hull, 86 Wash. 2d 527, 546 P.2d 912 (1976); (statute's definition of scienter including a situation where person has information or circumstances that would lead prudent person to form belief as to subject matter and if followed by inquiry would disclose its character, meets the constitutional requirement of scienter). 1586 352 U.S. 380(1957). 1587 Id_. at 381. 1588 Id_. at 382-3. 1589 360 U.S. 684(1959). 1304 statute prohibited the licensing of any motion picture "which portrays acts of sexual immorality, perversion or lewdness or which expressly or impliedly presents such acts as desirable, acceptable, or proper patterns of behavior." I590 ^ motion picture version of Lady Chatterly's Lover was denied a license on the grounds that it presented adultery as appropriate behavior. 1591 The Supreme Court found that the statute prohibited the advocacy of constitutional protected ideas - in this case, the idea that adultery may sometimes be proper - and was thus unconstitutionally overbroad in its reach. 1592 Closely akin to overbreadth is the concept of vagueness. A statute that does not give adequate notice of what it prohibits is void for vagueness. 1593 This concept is especially important in the area of obscenity where the distinction between protected and unprotected speech may be incomplete or unclear absent a court determination. 1594 A vague statute may also permit law enforcement authorities to exercise too much power to prosecute individuals based on their individual interpretations of the law. 1595 Therefore, the Supreme Court has found obscenity statutes unconstitutional when they lack "ascertainable standards 1590 Id. at 685, quoting N.Y. Education Law S122-a(McKinney 19T5) . id. at 685. 1592 Id. at 688-9. 1593 F. Schauer, The Law of Obscenity 159(1976). 1594 id. 1595 see, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495,504-05(1952n 1305 C )o of guilt" or are uncertain "in regard to persons within the scope of the act" or uncertain "in regard to the applicable tests to ascertain guilt." 1596 The Supreme Court has rejected challenges based on vagueness made against both the language of 18 U.S.C. S1461 and the California state statute containing the words "obscene or indecent." 1597 In Roth v. United States, the Court noted that the terms of obscenity statutes are not always precise. 1598 ^ statute must convey a "sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." 15" The Court concluded that the existence of "marginal cases in which it is difficult to determine the side of the law on which a particular fact situation falls is not a sufficient reason to hold the language too ambiguous to define a criminal offense." 1600 • The law governing search and seizure of materials presumptively protected by the First Amendment was the subject of a recent decision by the United States Supreme Court in New York 1596 See. winter v. New York, 333 U.S. 507, 515-16(1948) (holding statute prohibiting"massing stories to incite crime" unconstitutionally vague); See also, Gelling v. Texas, 343 U.S. 960(1952) (holding statute prohibitinglicensureof motion picture "of such character as to be prejudical to the best interests of the people of the city;" to be void for vagueness). 1597 Roth v. United States, 354 U.S. 476, 491-92(1957). 1598 I£. at 491. 1599 ld_. citing U.S. v. Petrillo, 332 U.S. 1,7,8. 1600 Id. at 491-2. 1306 v. P.J. Video, Inc. 1601 Tne court reaffirmed the proposition that any such seizure must be made pursuant to a warrant and that there must be an opportunity for a prompt postseizure judicial determination of obscenity. 1602 The Court noted that there is no requirement that the magistrate personally view the allegedly obscene material before issuing a warrant. 1603 However, the search warrant must be supported by affidavits containing specific facts so that the magistrate may "focus searching on the question of obscenity." I604 The Court found that the New York Court of Appeals erred in upholding the suppression of five video tape cassette movies seized by police from a video store pursuant to a warrant in the case at bar because. The New York Court of Appeals construed our prior decisions in this area as standing for the additional proposition that are application for a warrant authorizing the seizure of books or films must be evaluated under a "higher" standard of probable cause than that used in other areas of Fourth Amendment law. But we have never held or said that such a "higher" standard is required by the First Amendment. 1605 The Court held that, An application for a warrant authorizing the seizure of material presumptively protected by the First Amendment should be evaluated under the same standard of probable cause used to review warrant applications 1601 54 u.S.L.W. 4396 (April 22, 1986). 1602 id_. at 43 98, citing Heller v. New York, 413 U.S. 483(1973). 1603 Id. at n.5. 1604 Id. citing Marcus v. Search Warrant, 367 U.S. 717, 732(1961) and~Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636(1968). 1605 Id. 1307 ( generally. 1606 The use of municipal zoning ordinances to restrict the location of "adults" theatres was upheld by the Supreme Court in Young v. American Mini Theatres. 1607 Tne Detroit ordinance challenged in Young prohibited "adult" theatres from being located within 1000 feet of any two other "regulated uses" or within 500 feet of any residential area. 1608 A theatre was classified as "adult" if it presented "material distinguished or characterized by an emphasis on matter depicting, describing, or relating to 'specified sexual activities' or 'specified anatomical areas' as defined elsewhere in the ordinance. 1609 The court found that Detroit enacted the zoning ordinance based on the opinions of urban planners and real estate experts who believed that, the location of several such business in the same neighborhood tends to attract an undesirable quantity and quality of transients, adversely affects property values, causes an increase in crime, especially prostitution, and encourages residents and business to move elsewhere. 161° In a plurality opinion, the Court rejected challenges to the ordinance based on vagueness and prior restraint. 1611 The Court found that the only vagueness question related to the quantum of 1606 id. 1607 427 U.S. 50(1976). 1608 jd. at 52. 1609 jd. at 53. 1610 id. at 55. 1611 id. at 61. sexually explicit activity that must be portrayed in order for the material to be "characterized by an emphasis" on such matter. 1612 The Court reasoned that for most films the question was "readily answerable" and in doubtful cases, the ordinance was "readily subject to a narrow construction by the state courts."1613 The ordinance did not amount to a prior restraint of speech since the theatres were not prevented from showing the movies and viewers were not prevented from seeing them.rl614 The Court stated that, The mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not a sufficient reason for invalidating theseordinances. 1615 The separate zoning classification for adult theatres was also not violative of the equal protection clause of the Fourteenth Amendment to the Constitution. 1616 The classification established by the Detroit ordinance was adequately supported by the city's interest in the present and future character of its neighborhoods. 1617 The Supreme Court recently reaffirmed the validity of zoning ordinances that restrict the location of adult theatres in Renton 1612 Id_. at 61. 1613 id. 1614 Id_. at 62. 1615 id. 1616 id. at 70-71. 1617 Id at 72. 1308 1309 v. Playtime Theatres. 1618 Relying on Young v. American Mini-Theatres, a seven member majority of the Court upheld an ordinance enacted by the city of Renton, Washington, that prohibited adult movie theatres from locating within 1000 feet of any residential zone, single or multiple family dwelling, church, park, or school. 1619 The definition of adult theatres was almost identical to that in Young but also included showings of video tape cassettes, cable television, and any other such visual media. 1620 The Court analyzed the Renton ordinance as a "content neutral" time, place, and manner regulation of speech, since it was not aimed at the content of the speech but it was directed at the secondary effects of the theatres on the surrounding community. 1621 The ordinance was designed to, prevent crime, protect the city's retail trade, maintain property values, and generally protectt] and preserv[e) the quality of [the city's] neighborhoods, commercial districts, and the quality of urban life . . 1622 The Court went on to analyze whether the ordinance was designed to serve a substantial governmental interest and whether it allowed for reasonable alternative avenues of communication. The city of Renton had relied heavily on the experience of and studies produced by the neighboring city of Seattle. 1623 1618 slip. Op. No. 84-1360 (Feb. 25, 1986) 1619 id. at 1. 1620 jd. at 2. 1621 id. at 4-5. 1622 id. at 6. 1623 jd. at 8. 1310 The Court ruled that, The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses. 1624 Reasonable alternative avenues of communication were found to be available in that 520 acres or more than five percent of the land area of Renton was left open for use as adult theatre locations.1625 Justice William Rehnquist wrote for the majority. That respondents must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation. 1626 He added that the First Amendment does not compel the government to "ensure that adult theatres or any other kinds of speech related businesses . . . will be able to obtain sites at bargain prices." 1627 These two decisions make it very clear that the Supreme Court will uphold what Justice Rehnquist called "the essence of zoning" and enable local jurisdictions to preserve the quality of life in their communities by restricting the locations of adult movie theatres. 1628 1624 icj. at 9-10. 1625 icj. at 11. 1626 id. at 12. 1627 id. 1628 id. 1311 The law of obscenity encompasses a myriad of legal issues. 1 6 29As Chief Justice Burger wrote in Miller v. California, consideration of these issues does not present "an easy road, free from difficulty."1630 Tne Chief Justice resolutely declared that "no amount of "fatigue1 should lead us to adopt a convenient "institutional1 rationale - an absolutist, 'everything goes' view of the First Amendment - because it will lighten our burden." 1631 1629 413 u.S. 15(1973), 1630 id. at 29. 1631 Id. Chapter 7 Citizen And Community Action and Corporate Responsibiliity Preface 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 reason. First, the Constitution of the United States and the Amendments thereto, delineates and apportions the powers delegated to the federal, state, and local governments. Each of these levels of government have 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 levels) will be enforced by its elected and appointed government officials. 1312 1313 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 effort to control the proliferation of pornography 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. 1632 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 1632 "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. 1314 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. 1315 II. Introduction 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: 1. Sincere citizen interest in controlling the proliferation of pornographic material in their community; 2. A police department that is willing to allocate a reasonable portion of its resources to obscenity enforcement; 1316 3. 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; 4. 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: 1. Citizen involvement in educating legislators, law enforcement officials and the public at large as to the impact of pornography on their particular community; 2. Citizen action in the area of lawful economic boycotts and picketing of establishments which produce, distribute or sell sexually explicit materials in the community; 3. 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 and measures to their local legislators; and 4. A business community that exercises sound judgement 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 1317 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 use 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 are 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 this non-obscene but offensive pornographic material. 1318 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 within 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 established 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. 1319 158-315 Vol. 2, O - 86 - 10 III. Methods By Which Citizens Can Express Concern About Pornography And Other Offensive Materials In Their Area (Community). 1. CITIZENS CONCERNED ABOUT PORNOGRAPHY IN THEIR COMMUNITY CAN ESTABLISH AND MAINTAIN EFFECTIVE COMMUNITY ACTION ORGANIZATIONS. 2. COMMUNITY ACTION ORGANIZATIONS CAN SOLICIT SUPPORT FROM A BROAD SPECTRUM OF CIVIC LEADERS AND ORGANIZATIONS. 3. COMMUNITY ACTION ORGANIZATIONS CAN GATHER INFORMATION ABOUT PORNOGRAPHY IN THEIR COMMUNITY. 4. COMMUNITY ACTION ORGANIZATIONS CAN EDUCATE THE PUBLIC ABOUT THE EFFECT PORNOGRAPHY HAS ON THEIR COMMUNITY. 5. COMMUNITY ACTION ORGANIZATIONS CAN COMMUNICATE WITH LAW ENFORCEMENT OFFICIALS AND PROSECUTORS ABOUT THE PORNOGRAPHY IN THEIR JURISDICTION. 6. CITIZENS CAN FILE COMPLAINTS, WHEN APPROPRIATE, WITH THE FEDERAL COMMUNICATIONS COMMISSION ABOUT OBSCENE BROADCASTS. 7. COMMUNITY ACTION ORGANIZATIONS CAN CONDUCT A "COURT WATCH" PROGRAM. 8. COMMUNITY ACTION ORGANIZATIONS ARE ENCOURAGED TO REMAIN INFORMED OF DEVELOPMENTS IN OBSCENITY AND PORNOGRAPHY - RELATED LAWS AND MAY WISH, WHEN APPROPRIATE, TO LOBBY FOR 1321 ( LEGISLATIVE CHANGES AND INITIATIVES. 9. COMMUNITY ACTION ORGANIZATIONS CAN PROVIDE ASSISTANCE AND SUPPORT TO LOCAL, STATE AND FEDERAL OFFICIALS IN THE PERFORMANCE OF THEIR DUTIES. 10. CITIZENS CAN USE GRASSROOTS EFFORTS TO EXPRESS OPPOSITION TO PORNOGRAPHIC MATERIALS TO WHICH THEY OBJECT. 11. CITIZENS CAN EXERCISE THEIR ECONOMIC POWER BY PATRONIZING INDIVIDUAL BUSINESSES AND CORPORATIONS WHICH DEMONSTRATE RESPONSIBLE JUDGEMENT IN THE TYPES OF MATERIALS THEY OFFER FOR SALE. 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. 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. 14. BUSINESSES CAN ACTIVELY EXERCISE THEIR RESPONSIBILITY AS "CORPORATE CITIZENS" BY SUPPORTING THEIR COMMUNITY'S EFFORT TO CONTROL PORNOGRAPHY. 1322 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, 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 1633 see, Recommendations for Law Enforcement Agencies in Part Three. 1323 1 o 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,I 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 bankd, 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 1324 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 1325 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 suits J-634 On behalf of the citizens they represent, against those individuals and corporations who have allegedly violated the law. 1635 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. 1634 civil laws include nuisance laws and may include zoning. 1635 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. I 1326 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. 1327 The series of questions listed below each heading should facilitate a thorough survey of these establishments and media. A. ESTABLISHMENTS AND MEDIA SURVEX QUESTIONS 1."Adults Only" 1636 Pornographic Theatres a. How many pornographic theatres are there in the community? Where are they located? b. What movies are shown?c. Are sexually explicit advertisements in full public view?d. Are any of the theatres of the drive-in type? e. What precautions, if any, are taken to prevent minors from gaining access to these establishments? Sexual 2. "Adults Only" Pornographic Outlets a. How many pornographic outlets are there in the community and where are they located? b. What materials are sold? Magazines? Paperbacks? devices? Videos? Films? c. Are there peep show booths where movies are shown? d. Are there live peep shows? e. Is sexual activity taking place in these establishments?f. Are these pornographic outlets serving as a solicitation point for prostitution? g. Are these pornographic outlets adequately inspected for public health violations? 3. Retail Magazine Outlets a. How many retail magazine outlets in the community offer pornographic material? b. Where are they located? c. What magazines and paperbacks do they stock? d. Are they displayed on the counter? e. Behind the counter? f. In racks with general magazines? g. In blinder racks? h. What precautions, if any, are taken to keep minors fro* being exposed to these materials? 4. Video Tape Cassette Retailers a. How many of the video tape cassette stores, and convenience stores selling and renting videos in the community, stock sexually explicit or sexually violentvideos? b. Where are the sexually explicit or sexually violentvideos displayed? c. 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 subscriptionservice in your community? Are sexually explicit or obscene programs beingdistributed? When? What precautions, if any, are taken to keep minors frombeing exposed to these services? a. b. c. 6. Dial-A-Porn b. c. d. e. f. 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 pre-recorded 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 ofminors. What precautions, if any, are being taken to shield minors from exposures to Dial-A-Porn? 1. Hotels b. c. d. 1636 The term "Adults Only" is meant only to describe the nature of the material presented and not necessarily the age o£ the patrons. 1328 How many hotels in the community advertise and provide sexually explicit or sexually violent movies for theirguests? Where are these hotels located? What precautions, if any, are taken to preclude minorsfrom viewing these movies? Are these hotels used for prostitution or other relatedcrimes? Computer Pornography a. Are pornographic computer services available in yourcommunity? b. What is the nature of the service? 1329 I c. d. e. f. Are conversations pre-programed? 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? B. OFFICIALS 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 is 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. 1330 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 1331 relating to obscenity and unlawful sexual activity within their 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 (5) law enforcement priorities, which can be used when discussing the pornography issue with any law enforcement agency official. A. 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 1332 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 prosecutethese cases? c. In what types of cases have obscenity convictions been obtained in 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 presentingthese 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 communitystandard? 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 1333 the local prosecutor. Citizens should specifically inquire about the prosecutors' 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 this fact, should contact the other members of the Law Enforcement Coordinating Committee (LECC's) in his or her jurisdiction 1637 to devise a coordinated approach to this problem. In addition to those questions suggested under Police, the following are 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 1637 see , The discussion in Recommendations for Law Enforcement Agencies about LECCs. 1334 b. c. d. Federal Bureau of Investigation, United States Customs Service, United States Postal Inspection Service or Federal Communications Commission during the past five years? How many of those cases were prosecuted? In how many cases was organized crime afactor? 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 1335 o 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 indepth 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 about the court disposition of significant obscenity cases and expressing the citizens view about the handling of these types of cases. Citizens 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 re-appointment or re-election. "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 AND PORNOGRAPHY-RELATED OBSCENITY LAWS AND MAY WISH, WHEN APPROPRIATE, TO LOBBY FOR LEGISLATIVE CHANGES AND INITIATIVES. 1336 1337 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. See Chapter 9 of this Part for examples of state statutes which have been determined to be constitutional by state and federal courts. Chapter 9 of this Part also contains possible amendments to federal statutes which reflect Commission recommendations. 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 1338 o 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 1339 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 1 fi"} ROrganization For Women, J-D->0 the state of Missouri brought an action against the National Organization for Women (N.O.W.) 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. 1639 This issue was later addressed by the Supreme Court in NAACP v. Claiborne Hardware Co., 1640 In this case, a local branch of the NAACP launched a boycott of white merchants in Claiborne County, Mississippi, to secure compliance by both civic and 1638 62o F.2d 1301(8th Cir. 1980). 1639 Id. at 1319. 1640 458 u>s. 886(1982). 1340 o 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.1641 While pickets and boycotts are constitutionally permissible, and in some instances socially desireable, 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 organization 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 1641 Id. at 911. 1341 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. 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 a influential in furthering grassroot 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 using 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 1642 see, Chapter 2 of Part three for a discussion of the regulation of cable and satellite systems. 1342 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 if said laws would serve the particular needs of the community. 1643 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 publically displayed. Statutes or ordinances may be enacted to restrict the display of sexually explicit materials to minors. In order to conform to constitutional reguirements, such laws should apply only to materials that are obscene as to minors 1644 an(j should also contain reasonable time, place, and manner restrictions, l64^ In light of the legislative options available, communities can constitutionally exercise control over the location of pornographic establishments as well as the display of 1643 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. 1644 see, Ginsberg v. New York, 390 U.S. 629, 645-47(1968). 1645 See, Young v. American Mini-Theatres, 427 U.S. 50. 63(1976). 1343 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 judgement in the selection of their book, magazine and video tape inventory. Businesses which elect not to produce, or distribute pornography in .->n effort to uphold or reinforce community standards should be commended. The same logic applies with egual force to radio and television stations which offer pornographic or offensive programming. Citizens, can use their economic power by patronizing those 1344 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, 1646 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 1646 243-44.D.C., Hearing Vol. !, Kandy Stroud, 1345 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 recognized 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 1346 1347 services, delivery services, warehouses, commercial realtors, computer services, cable and satellite companies, recording companies, hotels, credit card companies and numerous others. These businesses have a responsibility to exercise due care 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 used 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 facilities and to conduct quality of content examinations of their inventory to safeguard against the sale of materials 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 1348 responsibility, are encouraged to establish and participate in pornography "victim" assistance programs. 1647 They can do this by contributing to social service agencies who specialize in or deal with sexual abuse. 1648 They can also provide direct financial assistance, in the form scholarships and vocational programs, to "victims" of pornography. 1649 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. IV. CONCLUSION 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. 1647 See, Chapters 1 and 2 of this Part for a discussion ofvictimization. 1648 see, Chapters 1 and 2 of this Part which discusses the numerous forms of victimization associated with pornography. 1649 1349 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 encourage others to improve the quality of life in their community. Chapter 8 Production and Distribution of Sexually Expiicit Material I. II III IV. V. HISTORICAL OVERVIEW OF THE INDUSTRY PRODUCTION, DISTRIBUTION AND TECHNOLOGY A. MOTION PICTURES B. VIDEO TAPE CASSETTES C. MAGAZINES D. CABLE AND SATELLITE TELEVISION E. DIAL-A-PORN F. COMPUTERS G. OTHER MATERIALS SOLD IN PORNOGRAPHIC OUTLETS H. PAPERBACK BOOKS I. TABLOIDS J. PHOTO SETS K. AUDIO TAPES L. PEEP SHOWS . OUTLETS A. "ADULTS ONLY" PORNOGRAPHIC OUTLETS B. GENERAL RETAIL OUTLETS MILITARY BASES PRISONS 1350 1351 Vol. 2, o - 86 - I. HISTORICAL OVERVIEW OF THE INDUSTRY The pornography industry has grown considerably over the last thirty years by continually changing and expanding to appeal to new markets.1650 In the last several decades, the industry has gone from a low yield, covert business to a highly visible multi-billion dollar industry.1651 Over five hundred fifty million dollar of this may be attributed to retail sales in the Los Angeles area alone.1652 The remaining billions of dollars worth of materials are distributed throughout the United States and abroad. In the 1950s, "adults only" pornographic establishments1653 were dark and dingy stores and theatres located in the less desirable parts of urban areas.1654 T^e sex_ related materials of this period generally depicted scantily-clad women in seductive poses and were not readily available to the public.1655 The most graphic publication of this era was the Tijuana Bible, a book with illustrations of various sexual acts.1656 1650 60A. 1651 t p. 30. 1652 1653 outlets. 1654 1655 1656 Los Angeles Hearing, Vol. I, Robert Peters, p. 32 and Id_. at 32, 60C; Chicago Hearing, Vol. I, Donald Smith, Id. See, The discussion of "adults only" pornographic Id. at 38. Id. at 38 and 60A. Id. at 38. 1353 Magazines were usually produced in black and white and were grainy in quality.16 7 The photographs depicted were mostly of provocatively posed nudes.1658 Generally, the model's public area was not shown in these photographs. As a result, nudist magazines were extremely popular.1660 The films available during this period were also of very poor technical quality.1661 The films containers were also plain. Usually, the films did not have titles but wre given numbers for identifying purposes.1662 These films showed mostly females in "strip tease"1663 activities.1664 The females depicted in the fims were often partially exposed in the breast area and the males, for the most part, were fully dressed.1665 The first of these films to be a major economic success was produced in 1959 for $24,000 and was about a 1657 Id. at 60A. 1658 id. at 39, New York Hearing, Vol. I, Bruce Taylor, p. 240-241. 1659 Id. 1660 Los Angeles Hearing, Vol. I, Robert Peters, p. 39. Nudist magazines were put but by members of nudist organizations and often depicted pictures of nudists and their families. 1661 1662 at 38 and 60A. 1663 "strip tease" refers to the slow and seductive disrobing of a woman usually to muisc while on 'stage. 1664 Id. at 38. 1665 Id. at 38-39. Some films did depict males undressing. Id. at 39. ~ 1354 o man who was unable to see clothing on women. 1666 This film ultimately grossed $1,000,000.1667 While the above descriptions represent mainstream sexually oriented materials during the 1950s, some more explict materials were also available. 1668 Jn some "adults only" pornographic outlets in major cities in the United States, sexually explicit materials depicting individuals with clearly visible pubic hairs could be purchased.1669 Some "stag films,"1670 mail order operations and underground connections, were the source for sexually explicit materials in which actual penetration was clearly visible.1671 In the 1950's the distribution of sexually oriented materials often took place on an informal basis through "trunk sales".1672 During this time, Los Angeles had five "adults only" pornographic outlets all of which were supplied in this way.1673 1666 The Report of the 1970 Commission on Obscenity and Pornography, 94(1970). 1667 id. 1668 New York Hearing, Vol. I, Bruce Taylor, p. 240-41. 1669 Id_. at 240. 1670 stag Films was an actual film production label made in Nashville, Tennessee. Los Angeles Hearing, Vol. -I, Ted Hcllvenna, p. 206. 1671 New York Hearing, Vol. I, Bruce Taylor, p. 241. 1672 Los Angeles Hearing, Vol. I, Robert Peters, p. 39, 60A. "Trunk sales" refers to the distribution of materials out of the trunk of the seller's car. 1673 Id. 1355 The stores selling this material fronted as general newsstands kfj*. +,h*; Ktzvvlly oriented materials in the back. The early 1960s saw the emergence of sexually explicit materials into the public eye. Simulated sex acts with no exposed genitalia constituted the majority of sexually explicit materials and an exposed genital was an obscenity violation in almost any jurisdiction.1675 Between 1960 and 1965, "adults only" pornographic outlet and theatre locations in Los Angeles alone increased from five to eighteen.1676 These outlets were primarily located in the central and "Skid Row" sections of downtown.1677 fne "adults only" pornographic outlets were small and in some cases provided other publications in addition to the sexually explicit fare.1678 The "adults only" pornographic theatres also began to emerge in small vacated business locations. 1679 These premises were often rundown and conducive to lewd activity.1680 During the 1960s, magazine print quality improved.1681 Magazines were generally four-color publications which continued 1 1674 1675 1676 1677 1678 1679 1680 1681 Id. Id. Id. Id_. Id. Id_. il' Id. at 39. at 60A. at 60A-60B. at 60B. at 39. at 60B. at 40. 1356 to depict female nudes.1682 Nudist magazines also rernained popular. The 1970 Commission on Obscenity and Pornography described the sexually explicit magazines of this period in detail. "Adult" Magazines Until the Late 1960s. Court decisions overruling obscenity convictions of sexually oriented magazines have affected the market almost as profoundly as similar court decisions dealing with textual material. In 1958, the Supreme Court reversed an obscenity conviction involving two nudist magazines containing pictures clearly revealing the genitalia of men, women, and children. During the early 1960s, nudist magazines slowly broke down the practice of segregating the sexes in photographs which had been observed earlier. Publishers remained very restrained about the situations portrayed in the photos. Any scene implying sexual activity was scrupulously avoided, and body contact was allowed only in situations of a wholly non-sexual nature. Nudist magazines of the early 1960s contained numerous articles extolling nudism and portrayed nudists only atwork and play. By the mid-1960s, secondary publishers had become much bolder in pictorial nudity. Implied erotic activity became an integral part of pseudo-nudist magazines. The so-called "legitimate" nudist magazines, which attempted to reproduce candid shots of nudist camp activities, passed nearly into oblivion because they could not compete in the marketplace with magazines which copied the nudist format, but contained more erotic pictures and more attractive models. By 1967 or 1968, a whole new group of magazines featured nude females posed in a manner which emphasized their genitalia in complete detail (known in the industry as "spreader" or "split beaver" magazines). Most contained little, if any, text. At the same time, male homosexual magazines developed along the same lines, also assisted by favorable Supreme Court decisions which overturned previous obscenity convictions. Homosexual magazines through the late 1960s consisted primarily of posed pictures of 1682 Id. 1357 nude males. The genitals of the models, the focal points of the photographs, were flaccid. Photographs were usually of a single model, although group scenes were not unusual. There was little or no physical contact between models, and sexual activity was generally not even implied. Relatively small quantities of fetish books and magazines were produced featuring uses of items such as rubber and leather wearing apparel, lingerie, high heeled boots, etc. Sadomasochistic depictions or descriptions of bondage, spanking, and "domination" by clubs, whips, etc. were also available in limited quantities. Sexual explicitness in these materials was usually far less than in typical "girlie" magazines. Although quite a number of titles were produced, these magazines were not a major factor in the marketplace. Sexual Content of "Adult" Magazines - 1969-1970. Through June, 1970, there have been few dramat ic innovations in the sexual content of "adults only" magazines. Additional female models have been added to the photographs, and many magazines have integrated male and female models. This has led to considerable implied sexual activity ;in the photographs. Actual sexual activity, or arousal of the male models is seldom depicted. Magazines aimed at male homosexuals have changed somewhat in the last year or two, and self-imposed restrictions on implied sexual activity are eroding slowly. Most homosexual magazines, however, are considerably less graphic than magazines featuring females. Fetish magazines continue to be a rather insignificant part of the total production, and have changed relatively little from the mid-1960s.1683 During the 1960s, the pocketbook emerged and replaced the rijuana Bible.1684 while the pocketbooks were not illustrated, 1683 The Report of the 1970 Commission on Obscenit Pornography, 115-16(1'~~ 1684 Los Angeles Hearing, Vol. I, Robert Peters, p. 40. Pocketbooks were paperback books which fit into your pocket. They were the forerunner of today's paperbacks. 1358 extremely graphic language was used in the text.1685 The 1970 Commission on Obscenity and Pornography described the sexually explicit paperback book of this period as follows: "Sex Pulp" Books Until the Late 1960s. The sexual contentofpaperback bookspublished for the "adults only" market has become progressively "stronger" in the past decade, primarily because of court decisions involving books such as Tropic of Cancer and Fanny Hill (See, Legal Panel Report [orthe 1970 Commission]). Until the mid-1960s, most paperback books published for the secondary market were known as "sex pulps". These followed a rather rigid set of ground rules: vulgar terms describing sexual acts, genitalia, excretion, etc., were not used, but rather euphemistic or symbolic language was substituted; the books consisted of a series of sexual adventures tied together by a minimal plot; sexual foreplay was described in great detail, but the mechanics of the sex act was not; and much of the sexual content was left to the imagination of the reader. By the late 1960s, however, the "sex pulp" formula had become relatively passe. A new breed of sexually oriented secondary books came onto the market, in which all restraints upon both language and descriptions of sexual activity were eliminated. In many there was little more than a compilation of non-stop sexual activity. Some paperback novels of the "sex pulp" type of the early 1960s are still published, probably because a portion of the market prefers less explicit material. However, the industry's criteria for "sex pulp" books has been broadened; this classification now includes any paperback which is badly written, edited, and typeset, and is apparently aimed at relatively poorly educated readers, irrespective of the degree of explicitness of its language or descriptions of sexual activity. Wholly Textual Sex Oriented Paperback Books in the Secondary Market, 1969-1970.Virtually every English language book thought to be obscene when published, and many similar books translated into English, have been reissued by secondary publishers. The entire stockpile 1685 Id. 1359 of "classic erotic literature" (e.g., The Kama Sutra, Frank Harris, De Sade, etc.) published over centuries has thus come onto the market. Another type of sexually oriented book has become popular in the last few years -- pseudo-medical, alleged case-study analysis of graphic descriptions of sexual activity. Although such books purport to be written by medical doctors or Ph.D.s, they primarily consist of graphic descriptions of sexual activity. As of 1970, publishers ;;of sex-oriented, wholly textual paperback books are convinced that there are no legal restrictions on the content of any wholly textual publication. As a result, "adults only" paperback books published and sold in the United States cannot possibly be exceeded in candor, graphic description of sexual activity or use of explicit language. The overwhelming majority of these books are intended for a heterosexual male readership. Almost no such books are written for a female audience. Perhaps 10% or more are directed at the male homosexual market, and less than 5% are specifically written for any of the various fetishes. Illustrated Paperback Books, 1969-1970. In the past two or three years-, some secondary publishers have included photographs in their books. Initially, such paperbacks included photographs in which young females posed with the focus of the camera directly upon their genitalia. In 1968 arid 1969, however, two additional types came onto, the market which revolutionized the sexual content of illustrated paperback books. One was the illustrated "marriage manual" containing photographs of couples? engaging in sexual intercourse "for an educational purpose". The most recent marriage manual of this type depicts fellatio and cunnilingus in addition to vaginal intercourse (penetration shown in detail). The second "breakthrough" occurred in 1969 with the publication of books purporting to be serious studies of censorship and pornography. These books contain illustrations ranging from Oriental and European erotic art to reproductions of "hard-core" photographs taken from Danish magazines, which graphically depict sex activities such as vaginal and anal penetration, fellatio, and cunnilingus. Following this lead, a number of publications containing "hard- core" photographs with textual commentary have been published and are in circulation in many major metropolitan areas. To some extent, therefore, the pictorial content of a number of paperbacks published and sold in the United 1360 States has reached the level of sexual explicitness found in Danish materials. However, Danish-type "pornographic" magazines (consisting entirely of photographs of sexual activity) have yet to be published and sold openly in this country; domestic publishers apparently believe that the inclusion of text is required to provide a legal defense in the event of an obscenity prosecution. During the 1960s, the technical quality of sexually explicit 1687films remained poor, but the content began to change. In the early 1960s, the majority of films involved simulated sexual acts with the focus on female genitalia.1688 By the end of the 1960s, sexually explicit films showing oral and genital copulation were more readily available.1689 The packaging of the films also changed. The boxes were more colorful and some had a photograph on the cover depicting a scene from the film.1690 The 1970 Commission on Pornography and Obscenity described the sexually explicit films during this period as follows: Between 1964 and 1968, exploitation films moved in a variety of directions. Some producers dropped all pretense of a plot and substituted nudity for a story line. Others produced "roughies," a mixture of sex and violence. Some films depicted women as aggressors (nymphomaniacs, lesbians, and prostitutes); others portrayed them as victims. A few films were self- styled "documentaries" dealing with sexual mores and aberrations. Still others were known as "kinkies" 1686 The Report of the 1970 Commission on Obscenity andPornography, 112-14(1970). 1687 Los Angeles Hearing, Vol. I, Robert Peters, p. 40. 1688 id. 1689 New York Hearing, Vol. I, Bruce Taylor, p. 292A. 1690 Los Angeles Hearing, Vol. I, Robert Peters, p. 40-41. 1361 (dealing with fetishes) and "qhoulies" (minimizing nudity and maximizing violence). In 1969, and continuing into 1970, exploitation films dealt with the same themes often found in general release motion pictures:.perversion, abortion, drug addiction, wayward girls, orgies, wife-swapping, vice dens, prostitution, promiscuity, homosexuality, transvestism, frigidity, nymphomania, lesbianism, etc. Almost all of the popular movie-making formulas have been utilized as settings for presenting these themes, including westerns and historical epics, although contemporary settings are still the most widely used. The vast majority of exploitation films are directed at the male heterosexual market. Relatively few films are produced for a male homosexual audience, but the number of these films has increased in the past year or two. A small number of theate-rs exclusively exhibit male homosexual films and a few exhibit such films on occasion. This market is;quite small at present, and is included in the estimate for the entire exploitation film market, although "male" films are developing their own producers and theaters. Full female nudity in exploitation films has become common in the last year ot two, although male genital exposure is almost unknown except in those films directed at the male homosexual market. Sexual activity covering the entire range of heterosexual conduct leaves almost nothing to the imagination. Actual sex acts, however, are not shown, only strongly implied or simulated. Self-imposed restrictions on the use of "vulgar" language have also disappeared in many films.1691 During the 1960s the distribution of sexually explicit 1 C Q O >ornographic materials, expanded significantly. ° Although 'trunk sales" remained the major method of distribution, large 1691 The Report of the 1970 Commission on Obscenity and Pornography, 94-95(1970)." 1692 LOS Angeles Hearing, Vol. I, Robert Peters, p. 41, 60B. 1362 wholesale warehouses began to emerge.1693 Tne wholesalers used small storefront businesses and older commercial buildings for storage and dissemination of materials.1694 Tne channels of distribution also became more complex with producers and wholesalers providing a variety of materials to outlets which now stocked several different types of sexually explicit materials.1695 The real proliferation of sexually explicit materials in the United States took place in the 1970s.1696 During this period, distribution locations for sexually explicit materials in Los Angeles alone increased from eighteen to over 400.1697 In the 1970s, producers of sexually oriented materials depicted sexually explicit and varied acts and continuously tested the bounds of existing obscenity laws.169*3 While most of these materials consisted primarily of simulated sexual acts, materials depicting actual sexual intercourse and oral copulation were increasingly available.1699 Sexually explicit magazines like Swedish Erotica were distributed widely and focused on 1693 ia. 1694 Id_. at 60B. 1695 Id. at 41. 1696 jcj. at 41 ana 60B; New York Hearing, Vol. I, Carl Shoffler and Ledra Brady, p. 238A-5. 1697 LOS Angeles Hearing, Vol. I, Robert Peters, p. 60B. 1698 LOS Angeles Hearing, Vol. I, Robert Peters, p. 44-45. 1699 Id_. at 43, 44, 60B. 1363 depictions of actual sex acts.1700 Most of the materials designed to appeal to paraphilias became prevalent during this period, including those showing harmful homosexual acts, sadomasochism, bondage and discipline, children and animals as well as visuals of ejaculation, urination and defecation.1701 Child pornography was more commonly available in the 1970s and appeared in commercially produced magazines such as Moppets and Where the Young Ones Are.1702 child pornography and materials with depictions of bestiality were openly available at some "adults only" pornographic outlets, ' sold under-the- counter in others and also available through mail-order sales.1704 "Adults only" pornographic theatres became more noticeable as they advertised and showed films of better technical guality.1705 Many of the mainstream theatres went out of business in the 1970s and were purchased to show sexually explicit films.1706 The most widely circulated of these films in 1700 id. at 44. 1701 id_. at 44, 45, 60B. 1702 id. at 48. 1703 child pornography was sold over the counter in New York City during this period. 1704 1705 1706 Id_. at 60B. Id. at 42. Id. 1364 o the history of the industry, "Deep Throat"i707 ana "The Devil i Miss Jones," were produced and marketed during this period. In the late 1970s, the industry expanded to include muc! larger "adults only" pornographic outlets, complete with peej show booths.1708 The number of independently owned store: declined and were replaced by stores owned by producers am distributors of sexually explicit materials who wanted to entei the retail bus iness . * 7°^ The company-owned "adults only" pornographic outlet became prevalent in the 1970s and has continued to dominate the retail market.1710 The distribution of sexually explicit materials in the 1970s became a sophisticated business.1711 Not only were distributors investing in retail outlets, but they began to operate out of more modern facilities with some distributors constructing their own buildings to accommodate their growth.1712 The Industry Today 1707 "Deep Throat" cost twenty-five thousand dollars to produce and has earned over fifty million dollars. 1708 LOS Angeles Hearing, Vol. I, Robert Peters, p. 41, 42, and 51; See, The detailed discussion of "adults only" pornographic outlets and peep show booths. 1709 1710 1711 1712 Id_. at 42. Id. Id_. at 51. Id_. at 51, 60B. 1365 Southern California is the production capital of the world for sexually explicit materials.1713 At least eighty percent of the sexually explicit video tapes, eight millimeter films and sexual devices and paraphernalia that are produced in the United States are produced and distributed within Los Angeles County.1714 Southern California has become the center of the sexually explicit film and film-related industries for the same reasons that it is the center of the mainstream film industry: the availability of resources and the temperate climate.1'1' Processing facilities and equipment, as well as film technicians, camera operators and performers are readily accessible for local operations producing sexually explicit material.1716 The 1980s have seen the complete transformation of the industry into a big business with large scale distributors,1717 theatre chains,171^ and technological advances such as home videos,1719 subscription television,1720 Dial-A-Pornl721 and 1713 LOS Angeles Hearing, Vol. I, James Docherty, p. 6. 1714 id. 1715 id. at 7. 1716 id. 1717 ic[. at 60D. 1718 i£. at 52. 1719 id_. at 52-53. 1720 see, Section D, infra. 1721 see, Section E, infra. 1366 computer sex subscription services.1722 Distribution locations have become large complexes operating out of modern industrial centers.1723 The major distributors own their own buildings and have incorporated all aspects of production into their businesses.1724 The following portions of this chapter are devoted to an in depth discussion of the industry today. These portions describe the various sexually oriented materials and services and how and where these products and services are produced and distributed. It should be noted that compiling information on the production and distribution aspects of this industry was a very difficult task. Much of the detailed information is closely guarded by industry representatives and was thus unavailable to the Commission. 1?22 see. Section F, infra. 1723 id_. at 54, 60D. 1367 o II. PRODUCTION, DISTRIBUTION AND TECHNOLOGY OF SEXUALLY EXPLICIT MATERIALS A. MOTION PICTURES Production The average cost of producing a feature length sixteen or 1725thirty-five millimeter sexually explicit movie for theatrical release is seventy-five thousand dollars. The costs may range from thirty to one hundred fifty thousand dollars.1726 A sixteen millimeter film that will be marketed on video tape costs between ten and thirty thousand dollars to produce.1727 The sexually explicit film industry is presently in a state of transition from a theatre centered base to one dominated by video tape cassettes viewed in the home.1728 Not surprisingly, the most rapidly growing method of production is to shoot a sexually explicit movie directly on video tape.l729 A sixty 1725 Thirty-five millimeter films are more expensive to produce than sixteen millimeter films. 1726 LOS Angeles Hearing, Vol. I, William Roberts, p. 72. John Weston, Counsel, Adult Film Association of America, estimates that a feature length film costs between $75,000 and $125,000 to produce. Interview with John Weston, Counsel, Adult Film Association of America(Mar. 8, 1986). 1727 Los Angeles Hearing, Vol. I, William Roberts, p. 73. 1728 Los Angeles Hearing, Vol. I, Les Baker, p. 203B-2-3. 1729 Los Angeles Hearing, Vol. I, William Roberts, p. 73. 1368 minute video can be produced in two days at a cost of between four and eight thousand dollars. A ninety minute video is often taped within three days at a cost between ten and twenty thousand dollars.1731 Tne costs primarily consist of performer and crew fees.I732 Most sexually explicit movies begin by the producer!733 choosing a title.1734 The producer attempts to choose a title that will attract the customer's eye and make the movie more marketable. One current trend is to take popular general release movies and develop sexually explicit "takeoffs" based on the titles and plots of the general release movies.1735 After a title has been selected, the script is written to suit the title. Sometimes, however, the script has no relationship to the title.I736 In addition, it is not uncommon for producers to use the same script for more than one movie. J' Once a title is chosen and a script written, the producer 1730 1731 1732 Id. Id. Id. 1733 The term "producer" is used to include the producer, writer and director as one individual, since this is usually the case. Id. at 62. 1734 Id. Ron*., nn rJn* t,P'^ «e'g"1 Romancin<3 the Stone, Romancing theBone; On Golden Pond, On Golden Blonde; The Wizard of Oz, the Wizard of Ahas; the Cotton Club, the Cotton Tail Club). 1736 1737 Id. Id. 1369 finds a location at which to shoot the movie.1733 Films m v b shot in motel rooms, private homes or on sound stages.1739 The primary consideration for the type of location used is often the budget allotted to the particular film.1740 After a location is selected, the producer chooses the performers.1741 Producers sometimes contact performers through agents.1742 The producer usually looks through the agent's book listing performers along with their photographs.1^43 The producer may choose a performer on the basis of appearance alone or on the basis of previous performances.1744 The producer may select performers by using a "cattle call," in which ten or fifteen performers are asked to appear at his location for an interview. 174•* In Los Angeles there are two agents who specialize in providing performers for sexually explicit films.1746 The agent receives forty-five to fifty dollars a day 1738 id. 1739 id. 1740 id_. at 63-64. 1741 See, Chapter 2 of this Part for a detailed discussion of performers. 1742 id. at 64. 1743 id. 1744 id. 1745 id. 1-746 id. 1370 for each performer that he provides.1747 The producer is looking for several things when choosing the performers. The most important factor is appearance.1748 Producers may want performers who have certain anatomical characteristics or who look particularly youthful.1749 The second criterion is that the performer must be able to do the sexual acts called for in the script.1750 These acts may include sadomasochistic activities, anal sex, group sex, urination and defecation.1751 Female performers earn $350 to $500 per day of per- formance .1752 Male performers earn $250 to $450 per day of performance.1753 Better known "stars" of sexually explicit movies earn from $1,000 to $2,500 per day of performance. 1754 Performers may also be paid on the basis of the number and type of sex acts in which they engage.1755 some performers receive 1747 id.. 1748 id. 1749 id. 1750 id. at 65. 1751 id. 1752 id. 1753 id. 1754 id.; The War Against Pornography, Newsweek, 62(Mar. 18,1985). — 1755 Los Angeles Hearing, Vol. I, William Roberts, p. 65. 1371 $250 per sex act.1756 As with any filming, the producer must own or rent lights, cameras and props.1'" The necessary equipment costs five 1 7 S8 hundred to one thousand dollars per day to rent. Larger production companies usually own their own equipment. 759 The technicians used in sexually explicit movies also may work in the general release film industry. 7° Others work in the sexually explicit film industry when they are unemployed or need to supplement their income. Still other technicians began and remain exclusively in the sexually explicit film industry.1761 When the producer is ready to begin filming, he will often contact the agent and instruct the agent to have the performers meet the producer at a designated location.1762 The producer sometimes transports the performers to the shooting location to avoid attracting the attention of the police or others.1763 The police often learn of sexually explicit movie shootings when a 1756 id. ; See, Chapter 2 of this Part which discusses performers. 1757 LOS Angeles Hearing, Vol. I, William Roberts, p. 65-66. 1758 I£. at 66. 1759 id. 1760 id.. interview with John Weston, Counsel, Adult Film Association of America (Mar. 8, 1986). 1761 Los Angeles Hearing, Vol. I, William Roberts, p. 66. id. at 67. id. 1372 neighbor complains about activities next door. 1754 Tne producer may also have security personnel check for police surveillance while the shooting is in progress. 1765 Once on site, the performers go through make-up and wardrobe, and have a script review. 1766 The script is usually minimal and is rewritten during the filming. l7^7 Dialogue scenes are usually shot in the first two or three takes. 17(>8 The sex scenes are usually filmed in one take. 1769 The director will usually tell the performers exactly what he wants them to do. 1770 The director will tell them which way to turn their heads and what positions to use while they engage in sexual activity . 1771 The most important part of the movie is considered by the trade to be the male ejaculation scene. I772 This scene is always filmed when the male's penis is outside the partner's body. I773 The male usually ejaculates on the buttocks, breast, or face of Id. id. 1766 Id. at 68. Id. id. id. Id. 1771 Id. at 68-69. 1772 Id. at 69. Id. 1373 his partner.1774 Still photographs may also be taken during the shooting!775 and are used for promotional material such as fliers, film or video package covers, posters, as well as unrelated magazine layouts.1776 It is also common for two versions of a movie to be produced during the filming.1777 One version contains more sexually explicit scenes than the other.177Ji ^he less sexually explicit film is sometimes introduced into the subscription television market.1779 A day's shooting may last from seven in the morning until two o'clock the following morning.17**0 During this time, the performers and crew are literally locked into the location.17**1 The meals are prepared or brought in and lunch and dinner breaks are taken on site.17**2 At the conclusion of the shooting the performers are asked 1774 id. 1775 id. 1776 id. at 69-70. 1777 id. at 70. ' 1778 id. 1779 id. 1780 id. at 69. 1781 idL at 70. 1782 Id. O 1374 I to sign a "Model Release."1783 Thfi performers are then paid for their work. Payment is generally made in cash.1784 After the shooting is complete, the producer prepares a master print to be sold to the distributor.1785 The distributor first edits the movie and then adds the soundtrack.1786 There are basically three types of sexually explicit films marketed: eight millimeter, sixteen millimeter and thirty-five millimeter.!787 The eight millimeter films are usually made into loops.1788 A "loop" is a seven to eight minute excerpt of a feature length film.1789 A film may be purchased or viewed as several different loops such as "Swedish Erotica One to Six." "Swedish Erotica Two" is actually a continuation of "Swedish Erotica One."1790 While eight millimeter film was a popular medium of 1791production in the past, it is no longer widely used. /JA One law enforcement officer estimated that by 1990, eight millimeter 1783 id. 1784 id. at 71. 17S5 id. 1786 id. !787 interview with Don Smith, Los Angeles Police Department(Mar. 9, 1986). 1788 id. !789 id. 1790 id. Id. 1375 o sexually explicit movies will be a thing of the past.1792 This prediction was based on the fact the eight millimeter films are usually of poor technical quality, lack audio sound, and the fact that lower cost video tapes of improved technical quality are replacing eight millimeter films in peep show booths nationwide.1793 Most of the feature length films shown in "adults only" theatres across the country are shot on sixteen millimeter film.1794 Sixteen millimeter is a popular medium because, through film processing technology, it can be easily converted into eight millimeter or thirty-five millimeter.1795 pew sexually explicit films are made on thirty-five millimeter because production costs are prohibitive.1796 1792 id. 1793 id. ; see, The discussion of peep show booths for further information. 1794 id. 1795 id. 1796 id. Distribution a. Motion Picture Association of America's Rating System An overview of the Motion Picture Association of America's (MPAA) rating system provides an initial perspective as to the content of some sexually explicit films. The rating system was established on November 1, 1968, by the MPAA, the National Theatre Owners and the International Film Importers and Distri- butors of America.1797 The rating system evolved because the motion picture industry recognized that it had an obligation to the parents and children of America to provide information about 1798its films in advance of their viewing. The Motion Picture Association of America has established five rating categories: (1) G: (2) PG: (3) PG-13: "General Audiences - All ages admitted."1799 "Parental Guidance suggested; some material may not be suitable for children."1*100 "Parents are strongly cautioned to give special guidance for attendance of children under 13. Some material may be inappropriate 1797 Los Angeles Hearing, Vol. II, Jack Valenti, p. 55B. 1798 id. at 5sc. 1799 id. at 55H. 1800 Id. , 1376 1377 (4) R: (5) X: for young children."1801 "Restricted, under seventeen requires accompanying parent or guardian."1802 "No one under seventeen admitted."1803 Some of the language in "G" rated movies may go beyond polite conversation. The violence in these films is minimal and there are no nudity or sex scenes.1804 in a "PG" film, there may be some profanity and violence. There are no explicit sex scenes but brief nudity may be present.1805 The film's use of one of the harsher sexually derived words, though only as an expletive, will require the rating board to initially issue that film at least a "PG-13" rating.1806 If the same sexually derived word is used in a sexually explicit context, the film will receive an "R" rating.180^ More than one expletive in a film results in an initial "R" rating.1808 • ^n «^« rated film contains some explicit material relating to language, violence, nudity, sexuality, drug use, or 1801 jd. 1802 id. at 55K. 1803 id. 1804 id_. at 55H. 1805 id. at 551. 1806 id. 1807 id. 1808 id. other content. 1809 However, explicit sex is not found in "R" rated films.1810 No children are admitted to an "X" rated movie. "X" rated films may contain brutal or sexually related language, explicit sex or excessive and sadistic violence. 1811 A film which is not submitted for a rating by the MPAA cannot, without authorization, use any rating except "X".1812 Some producers of sexually explicit movies attach an "X" rating to their product without ever submitting the film to the MPAA. In the opinion of MPAA President, Jack Valenti, this is because the producers have assured themselves of the character of their movie and feel the rating is unnecessary. 1813 Moreover many of these films are produced for the "X" rated movie consumer market. All advertisements and publicity material must also be submitted to the MPAA for approval prior to the public release of the film. 1814 Tnis includes, but is not limited to, newspaper, magazine, radio and television advertisements, as well as pre- views of coming attractions .1815 Once a rating is determined and id. at 55K. 1810 id. iSll id. 1812 id. at 55M. *813 !£. at 12-13. 1814 Id_. at 55N. 1378 1379 o assigned, it must then appear on all approved advertisements. The MPAA ratings may be displayed only on versions of the film, video or advertising that are identical to the one rated by the MPAA board.1817 Any violation of this rule will be met with "cease and desist" demands and, if necessary, legal action by the MPAA.1818 The scope of the rating system has recently expanded.1819 In 1984, the fourteen major home video companies announced that the MPAA ratings given to films for theatrical release will automat- ically appear on video cassette and disc versions identical to the rated theater version.1820 This agreement formalized the procedures most home video companies have used since the begin- ning of the industry.1821 Since its inception through September 30, 1985, the MPAA rating board had rated 7,036 feature films.1822 Table One sets forth the number of films which have been rated in each category. 1816 id. 1817 Id_. at 55M. ISIS Id. 1S19 Id. at 55P. 1820 jd. 1S21 id. 1822 id. at 55L. 1380 TABLE ONE* RATING G PG PG-13* R X*** NUMBER 900 2523 60 3190 363 PERCENTAGE 12.9 35.9 .8 45.2 5.2 This Table covers the period from the beginning of the MPAA to September 30, 1985. ** Introduced in July, 1984. This number represents a small portion of films advertised as "X" rated. The remaining "X" rated films are self- designated and are not reflected in the 363 figure. The sexually explicit film industry has established its own structure and guidelines. The Adult Film Association of America (AFAA), represents two hundred of the producers, distributors and exhibitors of the sexually explicit film and video industries.1823 The AFAA credo states! 1823 Los Angeles Hearing, Vol. x, Les Baker, p. 203B-2. 1381 1) 2) 3) 4) 5) That films of adult subject matter will be produced for and exhibited to adult audiences and that persons not of legal age will not be admitted. That the definition of an "adult" is that designation set by the constituted authorities of the community, but in no event any person under the age of eighteen years. That we will produce and exhibit only films that are in conformity with the Free Speech provisions of the Constitution of the United States of America. That we will respect the privacy of the general public in our advertising and public displays. That we in no manner will condone, produce, or exhibit child pornography in any form.1824 followed.1826 John Weston, counsel to the AFAA, testified that films made with unconsenting adults and children, as well as material depicting bestiality and excrement would be considered off limits by the AFAA.1825 Unlike the MPAA, there is presently no enforcement mechanism to ensure that the above procedures are 1824 Id;, at 203B-3. 1825 Los Angeles Hearing, Vol. I, John Waston, p. 174-75 See also, Los Angeles Hearing, Vol. I, Les Baker, p. 203B-4-203B- 1382 1826 Los Angeles Hearing, Vol. I, John Weston, p. 182-83. 1383 158-315 Vol. 2, o - 86 -12 b. Sexually Explicit Motion Pictures Independent of the rating systems, there are several steps involved in the distribution of a sexually explicit motion picture. Once a film is completed, the master print is sold to a distributor at a one hundred percent profit to the producer. The sexually explicit film distribution process is similar to that used for general release films. The sexually explicit film distributor reproduces the movie and packages it. Advertising and promotional materials are prepared by the distributor to announce the new movie. The distributor then markets the movie to wholesalers. The wholesaler carries hundreds to thousands of titles. The quality, genre and type of film may influence the wholesale and retail prices. The retailers realize a sizeable profit for the sexually explicit films. While eight millimeter sexually explicit films are not the major influence in today's market that they were five years ago, they continue to have a large profit margin.1827 Both general release and sexually oriented eight millimeter films are processed at the same cost, but there is a significant difference in cost at the retail level. A general release film has a four hundred percent markup as compared to an eight hundred to one thousand percent markup for the sexually oriented film.1828 The sexually explicit eight millimeter films 1827 LOS Angeles Hearing, Vol. I, Robert Peters, p. 60C. 1828 id. 1384 are mainly distributed to "adults only" pornographic outlets across the country. At present, there are approximately twelve to twenty-four production companies involved in making sexually explicit theatrical release sixteen millimeter or thirty-five millimeter 1 R PQ films. These films are sold to. distributors who in turn sell or rent the films to "adults only" pornographic movie theatres across the country. In 1985, approximately one hundred full length sexually explicit films were distributed to nearly seven hundred "adults only" pornographic theaters in the United States.1830 These theatres sold an estimated two million tickets each week to their sexually explicit movies.1831 The annual box-office receipts were estimated at five hundred million dollars.1832 Sexually explicit motion pictures are advertised on theatre marquis and posters. These films are also advertised in sexually explicit tabloids and magazines. Many major city daily news- papers also advertise "X" rated movies alongside general release films. John Weston, Counsel for the Adult Film Association of America, stated that the "adults only" pornographic theatre 1829 Interview with John Weston, Counsel, Adult FilmAssociation of America (Mar. 8, 1986). 1985)1830 The War Against Pornography, Newsweek 62(Mar. 18, • Id. I832 Id. 1385 business has been declining and will be virtually nonexistent by 1990.I833 He believes this will occur for a variety of reasons. First, the theatres themselves are expensive to maintain and operate. Second, with the advent of video tape cassettes, Americans are choosing not to go out to movie theatres for their movie entertainment. Weston bases this latter statement on the fact that theater admission costs are higher than video rentals, as well as his belief that an increasing number of people would rather watch movies in the comfort of their own home. He predicts these same trends will hold true for general release movies as well.1835 1833 Interview with John Weston, Counsel, Adult Film Association of America (Mar. 8, 1986). 1834 1835 Id. Id. B. VIDEO TAPE CASSETTES Production Video cassette recorders (VCRs) were first introduced into the American market in 1975 and are now used in approximately twenty-eight percent of all American homes.1836 it has been estimated that VCRs will be in thirty-eight percent of American homes with televisions by the end of 19861837 an(j eighty-five percent of these homes by 1995.1838 Most consumers initially used their VCRs for recording broadcast and cable programming that they were unable to view at its scheduled hour.1839 Jn the late 1970s, "X" rated video tapes, which were retailing for over one hundred dollars, constituted over half of the pre-recorded industry sales.1840 it was uncertain during this beginning stage of the VCR indus-try what consumer demand would be for purchase and sale of pre- recorded tapes. It was equally uncertain, what type of programming, aside from "X" rated films, would appeal to the 1836 The Abernathy/MacGregor Group, Press Release entitled "Home Video Cassettes to Become Dominant Entertainment Medium by1990's" 2(1986). 1837 1838 Id. at 3. Id. at 1. 1386 1839 Merrill Lynch, The Home Video "Har'ic'etV Times ofTurbulence and Transition, (Jan. 5"J 1986). 1840 Id. 1387 public.1841 As evidenced in the following Table prepared by the Video Software Dealers Association, a wide range of video programming is consumed by the public. TABLE TW01842 TYPE Action/Adventure Science Fiction Adult Children's Comedy Drama Horror Music Video How - To Foreign PERCENT OF MARKET 25.2% 19.6% 13.0% 10.4% 8.8% 8.6% 8.0% 2.9% 2.7% 0.8% 1841 Id. 1842 Video Software Dealers Association, 1984 VSDA Annual Survey 1; Current estimates place the figure for"Adult"video tape cassettes at no more than nine percent. Interview with Ronald Siegal, The Fairfield Group (Mar. 6, 1986). The thirteen percent of the video market identified by the industry as "Adult" excludes most of the sexually violent material that the Commission found to be the most harmful form of sexually explicit material. The categories labeled "Action/ Adventure," "Science Fiction", and "Horror", which together comprise more than half the market, include many films that contain scenes of rape, sexual homicide, and other forms of sexual violence. The harmfulness of these materials is not lessened by the fact that the breasts and genitals are covered in some scenes, nor the fact that these films are not given an "X" rating by the Motion Picture Association of America, nor the fact that the industry does not consider them "Adult" materials. Indeed, all of these features increase the availability of these materials to minors. Moreover, the "music video" category, which includes many sexually violent depictions, is specifically marketed to young people. The sexually explicit pre-recorded video tape industry has provided a new means of growth for the sexually explicit film market.X843 sexually explicit films were first put on video tape around 1977, a year before general release features appeared on the home video market.1844 Presently, seventy-five percent of the sexually explicit videos are being made by independent Los Angeles Hearing, Vol. I, Robert Peters, p. 35. 1844 stricharchuk, Selling Skj an Exnanrte oio f -•-- •-• - •gturman Expands His _ „_.. »X*_I_IM i\cuiMgri the Help of a Businessman's 1 A "• * 1388 ' 1 1389 producers.1845 Of the forty-five identified major producers in the United States, thirty-nine are located in Los Angeles.1-846 There are thousands of different video titles currently on the market.1847 Adult Video News, a publication about sexually explicit videos, estimated that 1,700 new sexually explicit videos were released in 1985.I848 it projects this high growth trend will continue.1849 While the steps necessary to produce a sexually explicit movie on video are basically the same as for a film,1 producers are making more movies available on video primarily for three reasons.1851 First, the cost of producing a movie on video is substantially less than shooting the same movie on film. Producing a movie on film is expensive because of the high costs of film and equipment.18^2 ^he average cost of making a sixty to ninety minute feature length movie on film is seventy-five 1845 LOS Angeles Hearing, Vol. I, William Roberts, p. 62, 74A. 1846 Chicago Hearing, Vol. I, Donald Smith, p. 31; Los Angeles Hearing, Vol. I, James Docherty, p. 7. I84? Los Angeles Hearing, Vol. I, Robert Peters, p. 53 1848 Los Angeles Hearing, Vol. I, William Roberts, p. 61. 1849 Id- 1850 see, The detailed description of how a typical sexually explicit movie is produced in this chapter. 1851 Interview with John Weston, Counsel, Adult Film Association of America (Mar. 8, 1986). 1S52 id. 1390 thousand dollars.1853 Tne same movie shot directly on video tape costs between $4,000 and $20,000.1854 Second, those productions made on video tape can be viewed immediately.!8->5 jn the film industry, there is a necessary time delay while the film is being processed.1856 If, after processing, more filming is needed, the entire production operation including crew and performers must be reconvened.1857 Finally, it may take several weeks to edit a film. Video tapes can be edited by computer in a matter of days.1858 When the producer has completed the video, it is ready to be sold to a distributor. The producer often sells his film at a one hundred percent profit.1859 Generally, if it costs a producer fifteen thousand dollars to make a ninety minute video, he will sell it to a distributor for twenty-five to thirty thousand dollars.1860 1853 id. 1854 Los Angeles Hearing, Vol. I, Robert Peters, p. 73. 1855 LOS Angeles Hearing, Vol. I, William Roberts, p. 72? Interview with John Weston, Counsel, Adult Film Association (Mar. 8, 1986). 74D. 1856 1857 1858 1859 1860 Id. !!• Id. Los Angeles Hearing, Vol. I, William Roberts, p. 71, Id. 1391 Distribution The distribution network for sexually explicit video tape cassettes is similar to that for sexually explicit films. Once the distributor receives the video tape, he duplicates it. The master tape is used to produce thousands of video tapes in order to supply the thousands of "adults only" pornographic outlets and general video tape retailers across the country.1861 The distri- butor also packages the video tape and prepares his advertising and promotional material. The cost to the distributor for the purchase, reproduction, packaging and advertising of a video tape is on average between eight and fifteen dollars.1862 The distributor then sells the video tape to a wholesaler for about thirty-one dollars.1863 Generally, the distributors profit margin is between one hundred percent and four hundred percent for a video tape.1864 Recently, the major sexually explicit film distributors have rapidly entered the national video tape market.18" Some of these distributors have completely discontinued eight millimeter films and are focusing on video tape distribution.1866 This is 1861 1862 1863 1864 1865 1866 Los Angeles Hearing, Vol. I, William Roberts, p.73. Id. at 72. Id. 1(3. Los Angeles Hearing, Vol. I, Robert Peters, p. 35. Id. • not surprising in light of the fact that the sexually explicit video industry's profits are in the hundreds of millions of dollars annually.1867 The wholesalers sell the video tapes to retailers across the country. Each wholesaler may carry thousands of titles from different distributors and sell the video tapes to retailers at a two to six dollar profit.1868 Many times the distributor and the wholesaler are one and the same.186" Sometimes, the producer, distributor and wholesaler are the same individual or corporation.1870 It has been estimated that there are at least twenty 1 fl 71thousand home video retail outlets nationwide. oi Many general convenience stores now carry pre-recorded cassettes for sale or rental.1872 More specifically, it has been estimated that in 1985 there were approximately nineteen thousand video specialty stores in the United States. A video specialty store is a retail outlet which derives more than fifty-one percent of its gross revenues I86? Id. 1868 Los Angeles Hearing, Vol. I, William Roberts, p. 72. 1869 id. 1370 id. 1871 Merrill Lynch, The Home Video Market; Times of Turbulence and Transition, 5(Jan. 6, 1986). 1872 1392 1393 from the sale or rental of video products,1873 it has also been estimated that in the United States there will be approximately twenty-four thousand video specialty stores in 1986 and twenty- seven thousand in 1987.1874 Sexually explicit video tapes can be purchased in "adults only" pornographic outlets as well as a significant number of general video retail outlets.1875 One source estimated that at least twelve thousand of the over twenty thousand general video retail outlets across the United States distribute sexually explicit video tapes.1876 Once the tapes are in the stores, they are either rented or sold.1877 In 1985 it was estimated that one in five pre-recorded video tapes was purchased.1878 The average price of all pre- recorded video tapes was forty-two dollars187^, while the average price of sexually explicit video tapes ranged from sixty to 1873 Interview with Ronald Siegel, The Fairfield Group (Mar. 6, 1986). 1874 id. 1875 New York Hearing, Vol. I, Gerald Piazza, p. 294. 1876 Los Angeles Hearing, Vol. I, John Weston, p. 203A-13 citing, VCRs; Coming on Strong, Time 47(Dec. 24, 1984). 1877 Merrill Lynch, The Home Video Market; Times of Turbulence and Transition, 9(jan. 6, 1986). 1878 id. 1879 id. at 3; Video Software Dealers Association, 1984 VSDA Annual Survey 3. eighty dollars. 1880 The sexually explicit video tapes also 1394 •tooi°oi Therented for between four and seven dollars a day. retailers of these sexually explicit video tapes often realize a profit of twenty-three to twenty-eight dollars on each video tape I The proportion of sales to rentals is expected to increase as the price of pre-recorded video tapes declines.1883 In 1985, at the retail level there were approximately $3.5 billion in sales of pre-recorded video tapes as compared to approximately $3.8 billion spent on theatre tickets.I884 An estimated eighty percent of the $3.5 billion spent on pre-recorded video tapes was on general release movie programming.1885 It has also been estimated that VCR playback will account for twenty-five percent of total television set usage in 1995.1886 jn evening prime time hours in 1995, VCR playback may command seventeen percent of total television set usage. 1880 Miami Hearing, Vol. I, Mike Berish, p. 91; Los Angeles Hearing, Vol. I, William Roberts, p. 72. 1881 LOS Angeles Hearing, Vol. I, William Roberts, p. 74E. 1882 id. 1883 Merrill Lynch, The Home Video Market: Times of Turbulence and Transition, 9(Jan. 6, 1986). 1884 Id. 1885 Id. 1886 Tne Abernathy/MacGregor Group Press Release entitled "Home Video Cassettes to Become Dominant Entertainment Medium by 1990s," at p. 4. 1887 Id. at 5. 1395 The Video Software Dealers Association (VSDA)i888 conducted a survey of its members on September 6, 1985 regarding the retail of "adult" video tapes. The following is a reproduction of the survey the VSDA sent to the Commission: 1888 xhe Video Software Dealers Association is a national trade association whose regular membership consists of approximately two thousand retailers and wholesalers of video software throughout the United States and whose associate members include a number of motion picture companies, independent video producers and manufacturers of various products related to the video industry. Letter from Charles B. Ruttenberg, Counsel, Video Software Dealers Association to Alan E. Sears, Executive Director, Attorney General's Commission on Pornography (Jan. 16, 1986). TABLE THREE "Adult" Surveyi889 * Number of individual stores that responded to survey: 2279 * Number of companies that responded to survey: 705 * Stores which carry "adult" product: YES NO Number of stores 965 1314 % of respondents 42% 58% * The following questions were answered by retailers who carry "adult" product: 1. What percentage of your gross dollar volume is in "adult" product? % of "Adult" Product 0-5% 6 - 10% 11 - 15% 16 - 20% 21 - 25% 26 - 35% 36 - 90% % of Respondents 13% 23% 25% 19% 8% 11% 1% 1889 The term "adult" was not explained or defined in the survey. It is therefore somewhat uncertain what participants included in this category. Interview with Charles Ruttenberg, Counsel, Video Software Dealers Association (May 9, 1986). 1396 1397 What percentage of your daily transactions are in "adult" product? % of "Adult" Product 0-5% 6 - 10% 11 - 15% 16 - 20% 21 - 25% 26 - 35% 36 - 90% % of Respondents 18% 25% 25% 16% 6% 9% 1% What percentage of your total inventory is in "adult" product? % of Respondents 15% 45% 19% % of "Adult" Product 0-5% 6 - 10% 11- 15% 16- 20% 21- 25% 26- 35% 36- 90% 11% 5% 4% 1% Sexually explicit video tapes are advertised on posters inside "adults only" pornographic outlets as well as trade magazines such as Adult Video News. These videos are also advertised in sexually explicit tabloids, magazines and paperback books. In addition, some video clubs advertise "X" rated videos in their publications and some general video retailers also advertise these sexually explicit videos. 1398 1399 C. MAGAZINES Production Mainstream sexually explicit magazines have grown in number since the arrival of the first of this genre, Playooy, in 1953. These magazines generally follow a formula of sexually explicit photographs featuring primarily nude females in a variety of sexual activities interspersed with textual content that is either also sexually oriented or covers general interest topics. The content of the April, 1986 issues of twelve of the most widely circulated of these magazines was examined and analyzed to more systematically portray this material. The magazines examined were: Cheri, Chic, Club International, Gallery, Genesis, High Society, Hustler, Oui, Penthouse, Playboy, and Swank. To get a better understanding of the range of material available in one issue of these magazines, frequency counts were obtained of the advertising, editoral and pictorial content. Each advertisement was counted regardless of whether it was a display or a classified advertisement. In terms of the per- centage of sexually oriented advertising, the amounts ranged from 100 percent of the advertising being sex-related as was the case with Club International and High Society, to twenty percent in Penthouse and ten percent in Playboy. Phone sex was the product/service most heavily advertised across these magazines, with forty-nine percent of the adver- 1400 tising featuring this service. This was followed by sexually explicit video (sixteen percent) and sexually oriented magazine (ten percent) advertisements. Editorial content in these magazines similarly varied from being totally or almost totally sex-related (Club International had one hundred percent sex-oriented content, followed by Cheri, with ninety-four percent, Club with ninety-three percent, and High Society with ninety-one percent), to having a greater proportion of general interest topics (sixty-seven percent in Playboy and sixty percent in Penthouse were on nonsex-related topics). Pictorial matter generally consisted of a "centerfold," other photographs of females posed alone, with other females, or with one or more males, and featured a variety of sexual activi- ties. The most common of the acts portrayed was that of a nude female in what the jargon of the trade calls the "split beaver" shot, a shot of a female with her legs spread apart and in many instances, also spreading open her vaginal lips with her fingers. One in five of the acts portrayed in these magazines were of this variety. Nineteen percent of the activities depicted showed some type of touching or fondling, followed by oral-genital (twelve percent) and sexual activities between two women (nine percent). In 1983, a similar content analysis was carried out on one issue of eleven of these magazines by Canadian National 1401 o Commission studying sexual offenses against children.1890 Included in this analysis were Playboy, Penthouse, Hustler, Gallery, Cheri, Playgirl, Forum, Oui, Club, Swank, and Genesis. The results showed that o A large majority of the photographs depicted partially dressed females. o The largest category of photographic depictions was for female body parts, primarily breasts, nipples (17%), followed by genitals (14%). o The most common sexual act depicted in the text was masturbation (21%) followed by oral-genital contact (14%). o The use of force in these textual depictions (anal pene- tration, bondage equipment, weapons, rape and murder) accounted for 10% of the sexual acts depicted. o Sexually oriented products featuring children were most heavily advertised in Hustler magazine. In 1980, Malamuth and Spinner conducted a more specific analyzed the content of all Playboy and Penthouse cartoons and pictorials from 1973 through 1977.1891 Pictorial violent 1890 Committee on Sexual Offenses Against Children and Youths, Sexual Offenses Against Children (1984). 1891 Malamuth and Spinner, A Longitudinal Content Analysis " •- kh" noBh-Seiiing Erotic Magazines, Ib Tneof Sexual Violence in the Best-" "rTTTTZ 'journal of Sex ResearcnVol. II, Judith Reisman, p. 444; «. v.m.».c..w ....—Penthouse, and Hustler Magazines With Special Attentic* -• • •• j ^^<m<> and violence (The Insthe Playboy" CartoonPOrtrayoj. yji. ^... --"•MediaEducation,Judith Reisman 1986); The fj.ayuuy >.„,---.Information Delivery System and Client Sexual Exploitation By sexuality was found to have increased significantly over the five years analyzed both in absolute numbers and as a percentage of the total number of pictorials. However, pictorials rated sexually violent were still a small percentage of the total pictorial material, reaching about five percent in 1977. Throughout this period. Penthouse was also found to have a greater percentage of sexually violent cartoons than Playboy (thirteen percent versus six percent). The sexually explicit magazines which are not included in the studies discussed above and are primarily available at "adults only" pornographic outlets portray masturbation as well as group, lesbian, gay, and transvestite sexual activities. Actual anal and vaginal intercourse as well as fellatio, cunni- lingus and sodomy are also prevalent.*892 There are depictions of rape, incest, bondage and discipline, sadomasochism, urination and defecation, bestiality, and simulated sexual activity with juveniles. 1893 Additionally, they cater to every type of paraphilia which has currently been identified.1894 Health Professionals, Sexual Exploitation of Clients by Health Professionals (Accepted for publication, A.W. Burgess ed. 1985). 1892 see, The Imagery Found Among Magazines, Books, Films in "Adults Only" Pornographic Outlets discussed in this Part.Los Angeles Hearing, Vol II, Joseph Haggerty, p. 16-66. 1893 Chicago Hearing, Vol. I, Jack O'Malley, p. 106, 111. 1894 paraphilias are psychosexual disorders where "unusualor bizarre imagery or other acts are necessary for sexual excitement. Such imagery or acts tend to be insistently andinvoluntarily repetitive and generally involve either: (1) preference for use of a nonhuman object for sexual arousal', (2) repetitive sexual activity with humans involving real or 1402 1403 In 1982, Dietz and Evans classified 1760 heterosexual pornographic magazines according to the imagery portrayed on the cover photographs. 1895 Four shops were randomly selected from the 42nd Street district in New York City and every magazine- format publication with a female or cross-dress male on the cover was categorized. Depictions of a woman posed alone predominated these covers in 1970, according to the authors, but only con- stituted eleven percent of the authors' 1980 sample. Bondage and domination imagery was the most prevalent imagery (seventeen percent of the covers) while smaller proportions of material were devoted to group sexual activity (10%). The authors suggested that pornographic imagery is an unobtrusive measure of the relative prevalence of those paraphilias associated with preferences for specific types of visual imagery. In 1985, Dietz, Harry and Hazelwoodl896 analyzed the content of nineteen detective magazines representing eighteen different titles from six publishers. The study found that covers tended to juxtapose erotic images with images of violence, bondage, and domination. Sadistic imagery accounted for twenty-eight percent simulated suffering or humiliation, or (3) repetitive sexual activity with nonconsenting partners. In other classifications these disorders are referred to as "Sexual Deviations." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 266 (3d ed. 1983). 1895 Dietz and Evans, Pornographic Imagery and Prevalence o£ Paraphilia, 139 American Journal of Psychiatry 1493 (1982). 1896 Dietz, Harry and Hazelwood, Detective Magazines; Pornography for the Sexual Sadists? (19851 (available from Dr. Dietz, School of Law, University ot Virginia). of the covers and women were most often shown as dominated by men. Bondage was depicted in thirty-eight percent of the covers, with all the bound subjects females. The layout of these magazines varies. Most sexually explicit magazines are four color and usually undated. Some magazines contain all photographs and others have less photo- graphs and a few editorials. 1897 Some magazine contents are tailored to consumers who prefer less sexually explicit material and others are produced with predominantly graphic ultimate sexual acts or specific paraphilias depicted.1898 Advertising is generally sexually related and includes advertisements for mail order sales, sexual devices and paraphernalia, sexually explicit 1 Q QQvideos and telephone sex. Law enforcement sources have stated that most of the produc- tion work associated with these magazines is done in-house.1900 The models are hired, the film is shot and processed, the pictorial layout is completed and the magazine is printed all within the corporate network.1901 They believe that this is particularly the case with two major producers of the magazines: 1897 Telephone interview with Sergeant Donald Smith, LosAngeles Police Department (Mar. 9, 1986). 1898 id. 1899 Telephone interview with Detective Robert Peters, LosAngeles Police Department (Mar. 9, 1986). 1900 Id. Id. 1404 1405 Star Distribution, Inc., and Parliament News.1902 In order to determine the extent and nature of pornographic magazines available, the Commission staff conducted a survey of pornographic outlets in six major cities in the eastern United States. The results of the survey indicated that there were over 2,300 different magazine titles available in these 16 stores alone. For a further discussion of the types of magazines and other material surveyed see the discussion of specific material in Chapter 9 of this Part. 1902 1406 Distribution Since the arrival of Playboy magazine in 1953, the market for mainstream sexually explicit magazines has expanded.1903 Tne growth of these magazines was evident through the early 1980s after which time circulation appears to have declined significantly.1904 Table Four sets forth the thirteen top 1903 Chicago Hearing, Vol. I, Peter Petruzzellis, 288G; In conducting our analysis of the most widely circulated sexually explicit magazines, the Commission received substantial assistance from the Audit Bureau of Circulation (A.B.C.) which is a repository possessing factual information concerning the audited circulation of major magazine publications. The information made available by the A.B.C. provides the basis for estimated changes in the extent, volume and regional distribution of sales from 1975 to 1984. The information also describes the minimal market value of a significant portion of the pornographic magazine business in the United States. The A.B.C. prepares and issues standardized statements of circulation, geographical analysis, and other information reported to it by its membership. It also verifies the figures contained in the members' statements by means of an annual auditor's examination of the publisher's records. Finally, it distributes the above information, without editorial comment. The A.B.C. publishers' reports are prepared twice annually. Publishers submit figures indicating their total sales for each month as well as their average circulation for a given six month period. The publishers also submit geographical analyses for their total paid circulation based on a one month period. The A.B.C. records only provide circulation figures for sexually explicit magazines which are part of its membership. A.B.C. records, therefore, are not a comprehensive listing of the circulation of all sexually explicit magazines. In addition, the list of sexually explicit publications whose circulation is reported by the A.B.C. has changed from time to time. Not all sexually explicit magazines surveyed in this section have consistently been members of the A.B.C. However, A.B.C. figures were available for nine of the surveyed sexually explicit magazines in 1975, for thirteen in 1980 and for ten in 1984. Audit Bureau of Circulation Brochure, This is the ABC; Interview with Jackie Kid, Audit Bureau of Circulation (Feb. 10, 1986). 1904 See, Table Four. 1407 selling mainstream sexually explicit magazines audited by the A.B.C. and the average monthly circulation for each from 1975- 1984. TABLE FOUR Top Selling Sexually Explicit Magazines Audited By The Audit Bureau of Circulation*** Average Circulation Per Month For 1975 - 1984 1975 1976 1977 Cheri Chic Club Magazine Club. . . . International Gallery Magazine High Society.. Oui . . . .647,173 , . .*342,589 , . . .554,559 . .1 ,276,498 , .3,966,109 , .5,663,149 . 1,061,010 543,010 466,295 688,612 368,508 1,681,8891,166,784 4,235,021 5,388,522 921,061 282 221 738,152 637,416 700,491 373,399 1,826,156994,737 4,599,9034,914,381 747,230 Total 14,084,961 15,450,702 15,814,086 Indicates an initial report. The report is based on the second half of the year, starting July 1 of the reported year and ending on December 30 of the same year. The average monthly circulation is based on annual reports made by the Audit Bureau of Circulations (ABC), 123 North Wacker Drive, Chicago, Illinois 60606. Annual reports were not available for the publications listed below for the years indicated: Club Magazine - 1984 Club International - 1984 High Society - 1984 Hustler - 1983 Playboy - 1984 The last entries for these publications were calculated by taking the average of two six month reports for the year in which the final entries were made. The two six month periods were from January 1 through June 30, 1984 and from July 1 through December 30, 1984. 1408 1409 Table Four (Cont't) Average Circulation Per Month For 1975-1984 1978 1979 1980 Cheri Chic Club Magazine Club International Magazine Hustler Oui 22,952 .. .579,648 . . .728,028 ...661,077 ...382,802 .1,517,011 . . .882,066 .4,367,094 .4,978,490 625,252 294,331 529,834 805,624 660,302 414,506 1,639,284 862,488 4,429,911 5,378,069 727,259 395,805 268,340 528,192 •••• 241,761 721,233 583,123 361,481 1,531,855 780,420 4,542,910 5,308,553 772,406 Total 14,984,420 16,104,180 16,479,221 Indicates an initial report. The report is based on the second half of the year, starting July 1~ of the reported year and ending on December 30 of the same year. 1410 Table Four (Con't) Average Circulation Month For 1975-1984 1981 1982 1983 Cheri 443,034 409,958 388,497 Chic 212,356 164,507 **N/A Club 539,783 518,463 486,776 Magazine Club 254,768 242,152 217,214 International Forum 581,917 523,163 500,313 Gallery 541,065 481,186 484,506 Magazine Genesis.. 333,588 311,178 273,720 High Society...448,767 414,729 377,033 Hustler 1,309,473 1,147,181 1,075,141 Oui 731,166 480,615 N/A Penthouse 4,248,554 4,017,853 3,596,758 Playboy 5,091,266 4,619,572 4,187,452 Playgirl .670,721 650,605 602,499 Total 1984 360,993 **N/A 463,605 185,532 438,132 475,321 284,897 360,723 **N/A **N/A 3,275,677 4,209,824 562,778 15,406,458 13,981,162 12,189,909 10,617,482 Indicates an initial report. The report is based on the second half of the year, starting July 1 of the reported year and ending on December 30 of the same year. Indicates information not available due to resignation of the client or temporary suspension of service. I 1411 0£ the three top selling magazines, Playboy, Penthouse, and Hustler, Penthouse and Hustler experienced a significant increase in monthly circulation from 1975 to 1980. In 1975, Penthouse had a monthly circulation of 3,966,109 and in 1980 this number had risen to 4,542,910. In 1975, Hustler had a monthly circulation of 554,559 and in 1980, that figure had risen to 1,531,855. Playboy, on the other hand, experienced a slight decrease in monthly circulation between 1975 and 1980. In 1975, 5,663,149 Playboy magazines were circulated each month and in 1980 that figure had decreased to 5,308,555. However, by 1983, all had experienced a decrease in average monthly circulation; Playboy sold 4,187,452, Penthouse sold 3,596,758 and Hustler sold 1,075,141. Moreover, between 1984 and 1985 most of these magazines again experienced a significant decline in circulation.1905 The A.B.C.'s Magazine Publisher's Statements provide the per issue single copy and subscription prices for the magazines. In calculating a total dollar value for these thirteen magazines, we used the 1982 figures and single copy prices. 1982 was the last year that all thirteen magazines were represented by the ABC and a vast majority of these magazines are single copy sales. The dollar value of each magazine was calculated by multiplying the number of magazines sold by the per issue single copy price. In 1982, the estimated monthly sales value in the United States 1905 1986) . Media industry Newsletter, Vol. 39, No. 9(«ar. 5, 1412 alone for these thirteen magazines was approximately $38,602,502.25. Besides the thirteen magazines discussed above, it has been estimated that there are currently between fifty thousand and sixty thousand different sexually explicit magazine titles available in the United States.1906 In fact hundreds of new titles come out each month.1 As discussed above, these i Q n flmagazines depict a variety of sexual themes and acts. Sovereign News and Star Distributors, Inc., are major distributors of many of these magazines.1909 These companies distribute magazines to "adults only" pornographic outlets and mail order operations across the country through a sophisticated nationwide network.191 In those areas of the country not serviced by Sovereign News or Star Distributors, smaller sub- distributors are used to transport the magazines to "adults only" pornographic retail outlets.1911 At least half of the retail sales of sexually explicit 1906 interview with Sergeant Donald Smith, Los AngelesPolice Department (Mar. 9, 1986). 19°7 id. 1908 See, The Imagery Found Among Magazines, Books, Films in "Adults Only" Pornographic Outlets, infra. 1909 Interview with Sergeant Donald Smith, Los AngelesPolice Department, Mar. 9, 1986. 1910 Id.; Mail order companies can be found in most large cities such as Los Angeles, New York and Chicago as well as somesmaller cities. Id. 1911 Id. 1413 magazines are made by pornographic outlets and the remainder of 1912these magazines are sold by mail order. The profit margin for producers and distributors of sexually explicit magazines remains high. '1^ The cost of producing both sexually explicit and non-sexually explicit magazines are similar at the processing level. 1914 The processing costs range from only sixty cents to one dollar per issue, * but, the profit margins are vastly different. The non-sexually explicit magazines are often marked up 240 percent from the wholesale to retail levels, while the sexually oriented publications are marked up more than four hundred to five hundred percent.1916 Retailers in turn mark up the magazines based on consumer supply and demand.1917 Usually the maximum markup at the retail level is one hundred percent.1918 Sexually explicit magazines are advertised in sexually explicit paperbacks, tabloids and other magazines. Some of the more mainstream magazines, for example Playboy, also advertise 1912 Id. 1913 LOS Angeles Hearing, Vol. I, Robert Peters, p. 33-34. 1914 Id. 1915 id. ; Some magazines cost as much as two dollars to produce. Miami Hearing, Vol. I, Mike Berish, p. 91. 1916 ia. 1917 Interview with Detective Robert Peters, Los Angeles Police Department (Mar. 9, 1986); Interview with Washington, D.C., Metropolitan Police Department Detectives (Mar. 10, 1986). ( I through direct .ail, television and in many major city daily newspapers and magazines. 1918 Id. 1414 1415 158-315 Vol. 2, o - 86 - 13 D. CABLE AND SATELLITE TELEVISION Production Cable television is a subscription service that first appeared in the United States in the 1940s to serve areas where broadcast television signals could not be received.1919 Tne cable television industry expanded slowly until the 1970sf when the Federal Communications Commission (FCC) adopted a deregulatory philosophy to allow cable services to offer a greater number of channels and to foster program diversity.1920 Cable subscriptions also increased when satellites were used by cable programming networks to distribute programming to local cable operators across the country. 1921 ^s a reguit of these developments, cable operators were able to offer programming from a wide variety of sources. Today there are over sixty-five hundred cable television systems in the United States serving over forty million subscribing households.1922 Cable television is currently available to seventy percent of the eighty-five million 1919 LOS Angeles Hearing, Vol. I, Brenda Fox, p. 283. 1920 Id. 1921 Id. 1922 Letter from James P. Mooney, President and Chief Executive Officer, National Cable Television Association to Henry E. Hudson, Chairman, Attorney General's Commission on Pornography (May 2, 1986). television households in the country.1923 Programs offered by cable companies are distributed to subscribers through a closed circuit wire system.1924 fhe caDie wire is strung along utility poles or buried in an underground conduit and enters the subscriber's home in the same way as a telephone line.1925 This differs from broadcast television which transmits its signals through the airwaves to anyone in the vicinity with a television.1926 While broadcast television stations are required to be licensed by the Federal Communications Commission (FCC) cable systems are not. They operate based on a contractual agreement or franchise with a state or local government body.1927 Tne Cable Communications Policy Act of 19841928 establishes a national policy regarding the areas of the cable television industry which are subject to federal, state and local regulation.1929 In addition to cable, there are several other types of television services including Satellite Master Antenna Television 1923 LOS Angeles Hearing, Vol. I, Brenda Fox, p. 306-R. 1924 !£• at 306-N-306-0. 19" id. at 306-8. 1926 i^. at 282. 1927 id. 1928 47 u.S.C. S521 e_t seq. 1929 LOS Angeles Hearing, Vol. I, Brenda Fox, p. 306-O-306- P. See, The discussion of FCC regulatory responsibilities in the Recommendations for Law Enforcement Agencies. 1416 1417 (SMATV), Over-the-Air Subscription Television (STV), Backyard Satellite Receiving Dishes (TVRO) and Multipoint Distribution Service (MDSJ.1930 SMATV signals are received by a large antenna and delivered to individuals in multiple unit dwellings by wire. The service is usually provided without charge to occupants of apartment 1931buildings and to hotel and motel guests. STV signals are transmitted over the airwaves in a scrambled mode by a broadcast station. Viewers in the service area who desire the programming must rent a decoding device for their televisions. *32 Tne P^Q has preempted most state and local regulation of the SMATV and STV services.1933 Backyard satellite receiving dishes (TVROs) are large antenna discs used by individuals to receive satellite transmitted programming. Often these discs are used to intercept programming that is transmitted via satellite from the cable programers to the local cable operators.1934 MDS signals provide one to eight channels of programming to subscribers.1935 Subscribers must have a special antenna and signal to receive and convert the transmitted signal into a freguency compatible with a 1930 idk at 306S-306U. 1931 Id_. at 306S-306T. 1932 id_. at 306T. 1933 id. 1934 id. at 306U. 1935 id. at 306-T. standard television.1936 MSD is used most commonly in multiple unit dwellings and to a lesser extent in single family residences.1937 Individual local cable operators control what programming will be offered on their systems. '^ One of the basic attributes of cable television is "narrowcasting" or presenting programming designed for a particular audience, such as children's programs, educational programs, "adults only" programs, and foreign language programs.1939 Most cable systems offer a basic service package consisting of local broadcast channels and other nationally or regionally distributed channels such as Cable News Network (CNN), Christian Broadcasting Network (CBN) and the sports channel (ESPN).1940 Cable systems usually offer at least one of the "pay television" channels such as Home Box Office (HBO), Cinemax, Showtime or the Disney Channel. These channels usually carry unedited movies without commercial interruption and are sold to subscribers on a per channel or per program basis.1941 Tne subscriber pays a monthly fee for the basic service and an additional fee for the "pay television" 1936 jd^ at 386-T -306-U. 1937 Id_. at 306-U. 1938 id. at 291. The exception to this rule occurs when, under the terms of the cable franchise agreement, cable operators are reguired to indiscriminately lease channels to the public. 1939 1940 Id_. at 284-85. Id. at 283-84. 1941 Id. at 284. 1418 1419 channels.1942 1942 Id. at 286. 1420 Distribution An analysis of the various forms of television transmission discloses that most of the sexually explicit programs appear on "pay television." This programming includes movies that have been given an "R" rating by the Motion Picture Association of America (M.P.A.A.) and self-designated "triple X" films.1943 Movies in the "R" category may depict violence, nudity, or sexuality, and contain sexually explicit or profane language.1944 Unedited programs with these ratings are generally not shown over regular broadcast television, therefore, cable and satellite television programs often contain more sexually explicit scenes than those shown over broadcast television. The difference in fare offered over regular broadcast television and cable and satellite television is due in part to the different legal restriction placed on each. Under current law, regular broadcast television cannot offer either indecent or obscene programs. Cable and satellite programs cannot offer obscene programs, but have been permitted to show material that would meet the criteria for indecency. Nevertheless, a significant amount of material appears on network television that qualifies as the type of sexual violence 1943 I£. at 285, 306-X; Los Angeles Hearing, Vol. II,Charles Dawson, p. 173. 1944 Los Angeles Hearing, Vol. II, Jack Valenti, p. 55EE; Theatre goers under seventeen must be accompanied by a parent orguardian. 1421 that the Commission has found to be the most harmful form of pornography. Although the sexually violent material aired on network television is probably never legally obscene the covering of breasts and genitals does not render the material any less harmful. The Commission also recognizes that the nonviolent sexual content of network television is offensive to many Americans. Sexually suggestive and provocative attire and performances, sexual humor and innuendo, and themes of adultery, fornication, prostitution, sexual deviation, and sexual abuse are all prevalent in broadcast television and treated with varying degrees of sensitivity. Channels which carry "R" rated programming reach in excess of 14.5 million homes over sixty-nine hundred cable and SMATV systems.1945 instances have been reported where movies represented as having an "R" rating were actually unrated films or even milder versions of "X" rated movies shown in "adults only" pornographic theatres throughout the country.1946 In addition to the sexual activity, the violence depicted in "R" rated movies can also be very explicit. Many times the violence depicted is of a sexual nature. Other "pay television" channels carry programming that is 1945 Los Angeles Hearing, Vol. I, Brenda Fox, p. 289. 1946 citizens for Decency Through Law, Cable Pornography; Problems & Solutions 2(Jan. 1985). exclusively "adult oriented" or sexually explicit. 1947 One sucn channel began in December of 1980 and currently has over seven hundred thousand subscribers over five hundred eighty cable television systems. 94° The channel's sexually explicit programs are shown during the hours of 8:00 p.m. and 6:00 a.m. In addition to "R" rated movies, the channel programming includes original adult programs and unrated movies. For example, this channel has shown a version of the movie "The Opening of Misty Beethoven", which, in at least one version, has been declared legally obscene. 1950 In addition to this channel, there are two satellite delivered networks which distribute sexually oriented programs to cable and satellite systems. One of the networks began operation in January of 1985 and delivers sexually explicit movies over both cable and satellite television. Its programs are shown between 11:00 p.m. and 4:00 a.m. over six cable systems. "1 Another network shows "triple X", unedited adult programming.1952 A "triple X" rating is attached by the movie LOS Angeles Hearing, Vol. I, Brenda Fox, p. 306-Y. Id. I949 id. Los Angeles Hearing, Vol. I, James Clancy, p. 345-1.See, Trans-Lux Theater v. People ex rel. Sweeton, 366 So. 2d 710 (Ala. 1979) ( finding "The Opening of Misty Beethoven" to beobscene) . 1951 Los Angeles Hearing, Vol. I, Brenda Fox, p. 306-Z. 1952 Los Angeles Hearing, Vol. II, Charles Dawson, p. 173. 1422 1423 producer and generally covers the same material as the "X" rating 1953but is meant to connote very explicit fare. ' This network has been in existence since 1983 and its programs are shown to 26,400 subscribers over eleven cable and satellite systems.1954 There are two other potential sources of sexually explicit programming over cable: local origination and access channels. Cable industry representative Brenda Fox, testified before the Commission that the National Cable Television Association (NCTA) knows of only one system that locally originates "X" rated movies on a pay-per-view basis.1955 However, she recognized that there may be other systems that locally originate sexually oriented programs on a per-channel or per-program basis.1956 In the area of leased access channels, Ms. Fox stated that the cable operators have no editorial control over the lessees' programming.1957 For example, pursuant to federal, state and local laws, Manhattan cable is required to set aside a number of channels for use by the public on a first-come, first-served basis.1958 The cable operator must offer the "access" channels 1953 Los Angeles Hearing, Vol. II, Jack Valenti, p. 12-13. 1954 Los Angeles Hearing, Vol. I, Brenda Fox, p. 306-Z. 1955 Los Angeles Hearing, Vol. I, Brenda Fox, p. 306-Z. 1956 id. 1957 Id. at 306-AA. 1958 Letter from Ralph P. Davidson, Chairman of the Board, Time, Inc. to Alan E. Sears, Executive Director, Attorney General's Commission on Pornography 3-4(Mar. 14, 1986). 1424 to all applicants on a non-discriminatory basis.1959 This requirement has resulted in late night sexually explicit programs which are available to all cable subscribers.1960 one program, Midnight Blue, shows sexually explicit fare over the Manhattan cable television system owned by TIME, Inc. Midnight Blue is produced by Al Goldstein, publisher of Screw magazine.1961 Ralph P. Davidson, Chairman of the Board of Time, Inc., addressed the Commission: "Midnight Blue". Although Midnight Blue appears on Manhattan Cable Television, a subsidiary of Time Inc., we would like the record to be clear and unambiguous— Midnight Blue is' not now nor has it ever been a program of Manhattan Cable. It is a program created locally by an unaffiliated third party which is carried on one of Manhattan Cable's commercial "access" channels. There should be no misunderstanding — Manhattan Cable would not carry Midnight Blue in the absence of state, local and federal requirements that it do so. Manhattan Cable is required by federal, state and local law to set aside a number of channels for use by the public on a first-come, first-served basis. Further, Manhattan Cable is prevented by law from exercising any editorial control over the content of commercial access programming, unless such programming is legally "obscene." The current obscenity law in New York is based on the "community standards" criterion set forth by the United States Supreme Court in Miller. It should be noted that Manhattan Cable operates in a community (the southern half of Manhattan) which is generally regarded as among the most tolerant in the country of adult material. As you are undoubtedly aware, Section 612(h) of the 1959 Los Angeles Hearing, Vol. I, Brenda Fox, p. 306-AA. 1960 ia. 1961 Los Angeles Hearing, Vol. II, Al Goldstein, p. 263. While the NCTA believes that Midnight Blue is an isolated case, there is no guarantee that a similar situation will not occur inother cable systems. 1425 Cable Communications Policy Act of 1984 imposes responsibility for policing the content of commercial access programming on the franchising authority, which in the case of Midnight Blue is New York City. Time Inc., would welcome any Commission recommendations that would enable cable operators to exercise full editorial discretion over such access programming. We can assure you that, if this were done, Midnight Blue would be removed from Manhattan Cable.1962 As mentioned above, in addition to the cable transmitted pay television channels, "X" rated and other sexually explicit movies are also available on direct satellite channels. Some of the "X" rated movies shown over satellite television!963 include "The Opening of Misty Beethoven,"1964 "Sex Wish," "Easy," "Talk Dirty to Me," "Vista Valley PTA," "Insatiable," "Taboo," "Insatiable II," and "The Devil in Miss Jones."1965 Although citizen complaints about obscene programming have been filed with the Federal Communication Commission, no action has yet been taken to regulate this programming.1966 Cable television operators have taken some precautions regarding the showing of sexually explicit programs. 967 Some 1962 Letter from Ralph P. Davidson, Chairman of the Board, Time, Inc., to Alan E. Sears, 3-4(Mar. 14, 1986). 1963 see, Film World, X-Rated Movie Handbook, Vol. 2, No. 8(1986). 1964 See, Trans-Lux Theatre v. People ex rel. Sweeton, 366 So. 2d 710(Ala. 1979) (this movie was found legally obscene). 1965 Los Angeles Hearing, Vol. I, James Clancy, p. 345-H. 1966 Id_. at 314. 1967 Los Angeles Hearing, Vol. I, Brenda Fox, p. 287. 1426 cable programmers and operators offer detailed program guides giving specific information about the content of upcoming programs.1968 some provide on-screen notices or warnings before sexually explicit programs are shown.1969 Most operators limit such programming to the late evening hours and transmit the material in a scrambled mode to ensure against inadvertent reception by non-subscribers.19'" Finally, all cable systems are required by federal law1971 to provide lockboxes, upon request, for either lease or sale. This device enables a subscriber to lock out a particular channel or channels during certain periods.1972 1968 Id. 1969 Id. 197° Id. 1971 47 U.S.C. S544 (d)(2)(A). 1972 Los Angeles Hearing, Vol. I, Brenda Fox, p. 287-88. 1427 (j E. DIAL-A-PORN Production In the 1920s, the Bell Telephone Company began providing recorded messages which gave the time of day and weather to its customers. The technology developed for such message services enabled Bell to provide these services at reduced costs because an operator did not have to handle the calls and give the information.1973 Such recorded messages were called "Dial-it" services. By the 1970s, this service had expanded and included recordings such as dial-a-joke and sports score lines.1974 The telephone company was solely responsible for the content, distribution and advertising of the recorded messages.1975 In the early 1980s, the Federal Communications Commission ruled that providing information by recorded messages was a service beyond the permissible scope of the telephone companies' authority.^976 As a result of this ruling, the entire telephone Dial-it service network was transformed. Today, the delivery of all recorded message services involves two entities: the information provider, which is 1973 Los Angeles Hearing, Vol. I, William Dunkle, p. 248. 1974 id_. at 249. 1975 id. 1976 Id. 1428 responsible for the content, distribution, and advertising of the message; and, the telephone company, which is responsible for transmitting the calls and billing the caller.1977 The recorded messages referred to as "Dial-A-Porn" began in 1982 after the deregulation of the Dial-it service.1978 with the advent of telephone deregulation, some telephone companies began holding lotteries to select providers of recorded messages or Dial-it services. One provider or Dial-A-Porn Services was a winner in the lottery conducted in New York State and by February of 1983 was offering Dial-A-Porn services over three telephone lines. It had acquired the lines either through the lottery process or by leasing them from other lottery winners. While this company has become one of the leading providers of Dial-A- Porn services, there are now many other Dial-A-Porn providers in the market.1980 There are two types of Dial-A-Porn calls.1981 The first, involves the customer dialing a number and carrying on a live 1977 M. 1978 LOS Angeles Hearing, Vol. I, Brent Ward, p. 228. Brent Ward has been the United States Attorney for Utah since 1981. He recently represented the United States in FCC v. Cariin Communications. In this case, an investigation was conducted which resulted in a judicial proceeding. Witnesses and evidence were subpoenaed regarding the Dial-A-Porn industry in general andthe defendant in particular. 1979 id. 1980 LOS Angeles Hearing, Vol. I, Teresa Hillraan, p. 379, 388A-6; Los Angeles Hearing, Vol. I, Brent Ward, p. 227. Id. 1429 I conversation with a paid performer on the other end of the line. The performer who .answers the call will talk to the caller in terms as sexually explicit as the caller desires and may encourage him to perform sexual acts during the course of the phone conversation.1982 The call may last up to forty-five minutes and the caller is billed on his credit card for an amount usually between fifteen and thirty dollars.1983 The second type of Dial-A-Porn call involves the receipt of a pre-recorded message when the caller dials the designated number.1984 These calls are a part of the Mass Announcement Network Service (MANS) and all begin with the prefix "976."1985 MANS recorded messages provide other information such as prayers, racetrack results, weather forecasts, sports scores, time of day, and children' stories.1986 The caller is charged for each call to this service on his other monthly telephone bill. I9*3"? The Dial-A-Porn recorded messages often consist of verbal illustrations of sex acts. These acts are frequently described by the performer as though they were actually occurring during the call with the caller and the performer was an actual 1982 jd. 1983 id. 1984 id. at 228. 1985 id. at 228. 1986 id. 1987 id. at 230. 1430 participant in the acts.1988 The acts described may include lesbian sexual activity, sodomy, rape, incest, excretory functions, bestiality, sadomasochistic abuse, and sex acts with children.I989 one Dial-A-Porn number in California,1990 offers the caller a choice of five "pleasures" including descriptions of sadomasochistic abuse, urination, and anal intercourse.1991 1988 Id. at 231. 1989 Id. 1990 The telephone companies have issued such numbers as 976-FOXX, 976-4LOV, 976-SLUT and 976-LUST upon the request of a Dial-A-Porn provider. These numbers not only indicate that nature of the 976 service but are memorable numbers as well. 1991 LOS Angeles Hearing, Vol. I, Teresa Hillman, p. 381; Flesh Fantasy News Paper, Vol. XIII, No. 23, Issue, No. 612(Aug.9, 1985). 1431 Distribution Dial-A-Porn recordings are now available locally in New York, Los Angeles, San Francisco, Philadelphia, Denver, Pitts- burgh, Baltimore, Washington, D.C., and other major cities across the country.1992 These services generate large numbers of calls. Many Dial-it providers can communicate fifty-seven second messages to a maximum of 50,000 callers per hour without any caller receiving a busy signal. During one day in May of 1983, eight hundred thousand calls were placed to one sexually explicit recorded message service.1994 in the year ending February 28, 1984, 180 million calls were made to the same numbers. 1995 In 1984, Dial-A-Porn recordings represented forty-four percent of the twenty-seven million messages on the "976" exchanges offered by Pacific Bell.1996 This figure dropped to twenty-seven percent in 1985, but was due to an increase in the volume of other "976" offerings.199? Dial-A-Porn providers and the telephone companies realize 1992 Los Angeles Hearing, Vol. I Teresa Hillman, p. 380; Los Angeles Hearing, Vol. I, Brent Ward, p. 229. 1993 LOS Angeles Hearing, Vol. I, Brent Ward, p. 228. 1994 i£. 1995 id. 1996 LOS Angeles Hearing, Vol. I, William Dunkle, p. 251. 1997 Id. 1432 significant revenues from the Dial-A-Porn services. When a caller is charged on his monthly telephone bill for prerecorded Dial-A-Porn messages, the provider of the message and the telephone company divide the revenues according to local tariffs.1998 The telephone company generally earns from two to nineteen cents for a one-minute call^-"" with the remainder going to the Dial-a-Porn provider. In New York, one Dial-A-Porh provider earns two cents per call and the telephone company earns 9.4 cents. In California, Dial-A-Porn providers earn $1.26 per call while the telephone company earns seventy-four cents.2001 jn some other areas, Dial-A-Porn providers earn $1.45 per call while the telephone companies receive fifty cents.2002 At two cents per call in New York City, one major Dial-A-Porn provider earned sixteen thousand dollars a day and a total of $3.6 million for the year ending February 28, 1984.2003 Tne telephone company for the state of New York has earned as much as thirty-five thousand dollars a day from Dial-A-Porn calls.2004 Pacific Bell estimates 1998 Los Angeles Hearing, Vol. I, Brent Ward, p. 229. 1999 2000 380. id. ; LOS Angeles Hearing, Vol. I, Teresa Hillman, p. 2001 Los Angeles Hearing, Vol. I, Teresa Hillman, p. 380. 2002 Los Angeles Hearing, Vol., I, Brent Ward, p. 229. 2003 id. 2004 Los Angeles Hearing, Vol. I, Judith Trevillian, p. 271. 1433 that their company earned twelve million from Dial-A-Porn calls between October 1984 and October 1985.2005 Not all Dial-A-Porn call are local calls. Eighty percent of the calls made to Dial-A-Porn recordings provided by one major service in New York are local calls and twenty percent are long distance.2006 ^ direct long distance call from Michigan to a Dial-A-Porn number in New York costs the caller fifty-eight cents per message during the day, thirty-four cents per message after five o'clock in the evening and twenty-three cents per message after eleven o'clock at night.2007 Telephone companies face a dilemma as a result of the rapid rise of Dial-A-Porn. The telephone companies support the MANS i concept as a means of providing information to the public and earning revenues to help keep basic telephone rates down.2008 However, they have been subjected to mounting public criticism for helping to provide sexually explicit messages to anyone who can dial the assigned number.2009 In response, some companies have taken legal action against Dial-A-Porn providers. For example, one telephone company has refused to offer Dial-A-Porn services at an estimated revenue 74, 2005 Los Angeles Hearing, Vol. I, William Dunkle, p. 259. 20°6 LOS Angeles Hearing, Vol. I, Brent Ward, p. 229. 2007 Los Angeles Hearing, Vol. I, Judith Trevillian, p. 273- 2008 Los Angeles Hearing, Vol. I, William Dunkle, p. 250. 2009 gee generally, Los Angeles Hearing, Vol. I, Teresa Hillman; Los Angeles Hearing, Vol. I, Judith Trevillian. 1434 o loss of five hundred thousand dollars per year.2010 One telephone company recommended to the Commission several steps to alleviate the growing Dial-A-Porn problem. It proposed that all advertising clearly and plainly disclose the cost of the telephone call.2011 if an individual is unaware of the charge, or if a child makes an unauthorized call, the company should offer a one-time adjustment of the telephone bill to delete the charges.2012 They also suggested that a telephone subscriber could have "976" access "blocked" from his or her lines.2013 The advertising of Dial-A-Porn numbers has become pervasive. In the San Francisco area, Dial-a-Porn numbers are listed in the white pages of the telephone directory under "Dial-It" and in the yellow pages under "Recorded Announcements."2014 Listings under the San Francisco yellow pages heading include "Adult Fantasy," "Gay Phone" and "High Society."2015 In addition to telephone directories, the numbers are also openly advertised in sexually explicit magazines and tabloids. For example, the June 1985 issue of one leading sexually explicit 2010 Los Angeles Hearing, Vol. I, Judith Trevillian, p. 276. 2011 id. at 253. 2012 Id_. at 254. 2013 id. . See, The discussion in recommendations for Law Enforcement Agencies for more information about the legal issues surrounding Dial-A-Porn. 2014 LOS Angeles Hearing, Vol. I, Teresa Hillman, p. 383; Los Angeles Hearing, Vol. I, Brent Ward, p. 229. Los Angeles Hearing, Vol. I, Teresa Hillman, p. 388A-6. 1435 o magazine contained ten pages of Dial-A-Porn advertisements.2016 Many of these publications are sold on the public streets with the Dial-A-Porn numbers openly displayed.2017 Dial-A-Porn numbers have also been advertised in a major California newspaper, although many newspapers have now discon- tinued the advertisements.2018 jn addition, Dial-A-Porn numbers are found in magazines in convenience stores and newsstands and are passed around among children and even written on walls.2019 Moreover, some Dial-A-Porn advertising is deceptive. Advertisements often refer to "free phone sex" or "free love" when in fact the caller is charged on their telephone bill if they make the call.2020 This misapprehension is especially common among younger callers and minors.2021 2016 Los Angeles Hearing, Vol. I, Brent Ward, p. 230. 2017 Loa Angeles Hearing, Vol. I, Teresa Hillman, p. 383. 2018 LOS Angeles Hearing, Vol. I, Teresa Hillman, p. 383. 2019 LOS Angeles Hearing, Vol. I, Brent Ward, p. 231; Los Angeles Hearing, Vol. I, Teresa Hillman, p. 377. 2020 i£. at 384-5; Los Angeles Hearing, Vol. I, Brent Ward, p. 230; Los Angeles Hearing, Vol. I, Judith Trevillian, p. 264. 2021 LOS Angeles Hearing, Vol. I, Brent Ward, p. 230. In 1985 Dr. Victor dine conducted research involving fourteen children (eleven boys and three girls) and their parents on the effects of Dial-A-Porn on children. He found that each of the children displayed an addictive behavior toward the Dial-A-Porn recordings. Cline reported that none of the children stopped placing the calls until they were admonished by their parents upon discovery of the practice. The research also concluded that the children retained very vivid and recurring memories of the Dial-A-Porn recordings. Cline observed that the children exhibited characteristics of embarrassment, guilt and shame about their involvement with Dial-A-Porn. Cline suggested that the long-term effects of the Dial-A-Porn experiences may be the most 1436 F. COMPUTERS Production 4 The personal home computer provides individuals with an extraordinary new form of communication and information access. Providers of sexually explicit materials have taken advantage of this new technology by making computer subscription services the most recent advance in "sexually explicit communications." In order to set up a computer information service, the information provider must have a computer facility with the capability of handling a number of incoming calls to the infor- mation service. The computers used by information providers can cost from twenty to thirty thousand dollars for a micro-computer (which can handle approximately ten calls at one time) to time- share computers costing one hundred thousand dollars or more (which can handle significantly more calls). The basic cost of providing an information service of any type depends on the magnitude and complexity of the service offered. Computer services offering sexually explicit communications run the gamut from small bulletin board operations to large scale multifaceted services. The types of information provided also vary. The computer services are similar to Dial-A-Porn telephone services in See, Section E for a complete discussion of Dial-A-Porn. 1437 that some offer live conversations with an employee of the service, pre-recorded messages or an open line where individuals can communicate with other subscribers. Sexually explicit services may offer one or all of these features. Other, general information providers may offer open "adult" channels where subscribers can carry on sexually explicit conversations with others on the system. 1438 Distribution Communicating by personal computer requires standard computer equipment. Computer communications require a personal computer (PC), a modem2023 and access to a standard telephone line.2024 The computer operator needs only a rudimentary knowledge of the equipment for effective communication.202^ The computer operator may subscribe to the services of one of many computer information firms. These firms provide access to their computer system for a fee.2026 Once a computer firm is selected, the operator must acquire a working knowledge of the systems commands to operate the computer effectively. These firms provide a manual which explains the system's commands to the operator following his or her subscription to their service.2027 The computer firms offer a wide variety of communication 2028services and provide varying degrees of privacy and security. 2023 A modem is an inexpensive device which connects the computer to the telephone system and allows the personal computer access to computer information systems. A modem can be a separate device that sits alongside your computer, or it can be an electronic board built inside the machine. 2024 Miami Hearing, Vol. I, Paul Hartman, p. 117A4. 2025 id. ; The owner's manual is supplied by the computer company and explains the mechanics of operations in detail. Id. 2026 id. 2027 id. 2028 Id. at 117A4 - AS. 1439 The firms may offer subscribers access to electronic "bulletin boards" where individuals have the opportunity to publicly place and read messages .2029 These messages are accessible to all subscribers. Firms may also offer a feature which permits one subscriber to send a confidential message to another subscriber.2030 xhis service is similar to mailing a letter directly to another person. The message is sent by computer and received only by the person for whom the message is intended. The sender directs the messages to the recipient by routing them to the recipient's assigned identification number.2031 Many computer companies offer a "conference" feature which enables three or more subscribers to engage in a conversation.2032 Conferences can be monitored by any subscriber to the service and afford no measure of privacy to participants in the dialogue. 2033 This is analogous to the Citizens Band radio network that can be monitored by anyone with a CB radio. Computer services generally charge an initial subscription fee and a users' fee based upon the time of day and amount of 2029 id. at 117A4. 2030 id. at 117A5. 2031 id. 2032 i£. at 117A6. 2033 Id. 1440 computer time the subscriber uses.2Q34 Tne initial fee is usually between thirty-five and one hundred dollars and user fees range from fifteen to twenty-five dollars per hour.2035 Sexually explicit computer subscription services are now available. One sexually explicit magazine, in January of 1985, began what they advertise as an "uncensored erotic" service called SEXTEX.2036 This service offers an array of features 2034 Tne two largest home computer information services, CompuServe and The Source, operate in this manner. Telephone interview with CompuServe and The Source sales representatives, (March 6, 1986). 2035 sane, X-Rated Computers, Genesis 76, 80(Jan. 1984). 2036 SEXTEX is the only service offered by CVC Online in New York. SEXTEX is synonymous with "COMPUSEX". Interview with Chris Rogers, sales representative, CVC Online (Mar. 6, 1986). In the July 1985 issue of High Society an article discussing SEXTEX described the following as examples of SEXTEX communi- cations. "Here's just a taste of the kinds of carnal conver- sations that go on every night with SEXTEX": Phone: How about sitting on my face? Ultima: First tell me how really great you are at eating pussy. Phone: I like to take things slow, I start by rimming around your pussy with long strokes. Ultima: That sounds great, I'm already getting wet. Phone: I like to tease until I see the sweet juice start to run out of your pussy. Slick: You said a mouthful? While you've got your big shaft between my beautiful knockers you can stick the head of it in my mouth. Will you let me suck it and swallow the cream? Lust: I sure will I I'm going to blow a load any minute. How's your pussy? I'll hold off for you. Slick: I've got my fingers working on it 1441 o including: (1) conference calls with unlimited parties, (2) a "sex shop" that allows the operator to purchase sexual devices, sexually explicit magazines and video tapes by computer, (3) bulletin boards where the operator can post related messages for other subscribers to read and/or respond to, (4) an electronic mail service which allows one subscriber to send personal notes to other SEXTEX users and to other computer information services, (5) A "Guide" which features articles on sex and travel, and (6) the opportunity to place or answer a personal ad or seek some sexual advice.2037 The privacy of all communications is stressed by SEXTEX as indicated in their advertisements: Your privacy is of paramount importance to us. SEXTEX has a password system that prevents unauthorized access, and you can change your password anytime you want. Your real identity need never be revealed; you will be known only: by a user-name you select. Each SEXTEX transaction is strictly confidential. Infor- mation is used only to process the transaction and cannot be monitored even by us. The name SEXTEX will never appear on any bill, Your credit card statement frantically, but I wanna hold out a little longer. Lust: Do you wanna come in my mouth? Slick: Do you wanna come all over my titties and pretty face? Maybe I should get out my instant camera so I can take a picture of your cum shooting out. Lust: Do you really have a camera? I think the keyboard would look great covered with your cum.Getting User Friendly with Computer Sex, High Society, 7 (July 1985) . 2037 Id. at 6-7. will simply read "Video-tex Services."2038 SEXTEX subscribers are asked to sign a written contract when they apply for the service. This contract states that the applicant is eighteen years of age or older and that he will not let anyone under eighteen use the service.2039 However, there is no indication that the computer services engage in any indepen- dent age verification for users or subscribers.2040 The lack of verification permits young computer users and computer hackers easy access to the system. Billing for SEXTEX services is currently done on the subscriber's credit card account.2041 Alternate forms of payment (i.e. cash and checks) may be accepted in the future.2"42 There are also a number of sexually oriented national and local bulletin boards systems.2043 GENDERNET describes itself as 2038 SEXTEX Brochure received by Commission February 12,1986 by CVC Online Inc. 2039 id. 2040 Cvc Online representative Chris Rogers stated that the application asks for the date of birth but no independent verification is sought. They rely on the fact that credit cards are needed for billing as a deterrent to under age subscribers. Interview with Chris Rogers, sales representative, CVC Online(Mar. 6, 1986). 2041 SEXTEX Brochure received by Commission February 12,1986 by CVC Online, Inc. 2042 CVC Online Representative Chris Rogers stated that some time in the future alternative methods of payments may be available. Interview with Chris Rogers, CVC Online salesrepresentative (Mar. 6, 1986). 2043 carr, Type Dirty to Me, Playboy 174(Mar. 1985). 1442 1443 an "information source for the transvestite and transsexual."2044 ODYSSEY II is designed for nudists and swingers.2045 SYSLAVE is known as "the kinkiest in L.A."2046 Sexually explicit computer subscription services and bulletin boards are often advertised in sexually explicit tabloids and magazines. Some are advertised through newsletters or direct mail. Sexually oriented computer communications are not limited to subscription services offered by pornographers. Any two computer operators with compatible systems can carry on a sexually oriented conversation. Moreover, one of the largest personal home computer information networks with over 250,000 subscribers, offers its own "Adult Channel."2047 This designated channel is one of several conference channels offered by the computer network.2048 Subscribers may use the "Adult Channel" as an introduction and then continue private conversations elsewhere in the network by a simple system command.2049 Computers have also emerged as a method of communication 2044 id. 2045 Id. at 175. 2046 id. at 176. 2047 "X"-Rated; The Joys of CompuSex, Time (May 14, 1984). 2048 id. 2049 id. between pedophiles about child victims.2o5o 2050 >«t Three,i« Chapter 3 of 1444 1445 M. OTHER MATERIALS SOLD IN PORNOGRAPHIC OUTLETS Production There is a wide variety of sexual devices and sexually oriented paraphernalia available in the United States. The Institute for the Advanced Study of Human Sexuality, in an attempt to collect and catalogue these devices, estimated that there were at least five thousand different "sexual enhancers" that had been marketed in the United States. Sexual devices and paraphernalia which can be purchased in many "adults only" pornographic outlets or through mail order include: dildos, penis rings, stimulators, french ticklers, aphrodisiacs, inhalants, inflatable dolls with orifices and police and detective equipment.2052 some are purchased for internal use while others are bought for external stimulation. There are also sexual devices and paraphernalia designed for specific types of sexual activity. For example, there are products specifically designed for sadomasochistic sexual activity. Such products include masks, whips, chains, manacles, 2051 Los Angeles Hearing, Vol. I, Ted Mcllvenna and Loretta Haroian, p. 224E. 2052 id. The Commission received reports regarding individuals that used such "police" equipment to assist in obtaining access to victims of sexual abuse and/or rape; See, The Imagery Found Among Magazines, Books, Films in "Adult's bnly" Pornographic Outlets in Chapter 9 of this Part. 1446 clamps and paddles.2053 The majority of sexual devices and paraphernalia are produced offshore at the request of suppliers in the United States.2054 The manufacture of these products is often subcontracted out to locations in the Orient because labor is available at a substantially reduced cost.2055 After the products are made, they are shipped to suppliers in the United States. The largest supplier of sexual devices and paraphernalia in country is alleged to be Reuben Sturman through his "Doc Johnson" line of products.2056 "Doc Johnson" products account for seventy to seventy-five percent of the sexual device and paraphernalia market.2057 The remainder of the market is mostly made up of 2053 other sadomasochistic sexual devices include orifice spreaders, testicle harnesses, body harnesses, branding irons, penis stretchers, crosses, enema bags, hand cuffs, rubber hands for anal insertion, underwear with openings for sexual usage, hoists, horse penises, leather straight jackets, lock restraints, mace, pins, racks, rectal catheters, restraining tables, stocks, breast chains, and nipple clamps. See, The Imagery Found Among Magazines, Books, Films in "Adults Only" Pornographic Outlets in Chapter 9 of this Part. 2054 Interview with Ted Mcllvenna, President, The Institute for the Advanced Study of Human Sexuality (Feb. 28, 1986); Interview with Sergeant Don Smith, Los Angeles Police Department (Mar. 9, 1986). 2055 Some small scale manufacturing of these products still goes on in the United States. Id. 2056 Interview with Sergeant Don Smith, Los Angeles Police Department (Mar. 9, 1986). For further information about the Rueben Sturman operation, see, The discussion of the organized crime influence, in Chapter 4 of this Part. 2057 Id. 1447 158- 315 Vol. 2, O - 86 - 14 smaller specialty companies.2058 Distribution The Sovereign News Company, which is owned and operated by Rueben Sturman and headquartered in Cleveland, Ohio, allegedly distributes the majority of "Doc Johnson" and other sexual device and paraphernalia products. Sovereign News has eighty-five to ninety major "news agencies" or distributorships nationwide.2060 Each distributorship has a different company name and handles a designated region of the country.2061 Often, they are operated by a local person who has been formally trained at the Sovereign News facility in Cleveland.2062 These distributors provide approximately 12,000 of the 14,000 to 15,000 pornographic outlets within the United States with "Doc Johnson" and other products. In those few areas of the country that the Sovereign News network does not cover, the products are sold to sub-distributors who then sell to retailers in their area. Most of the distributors use trucks or trains 2059 por further information on the Rueben Sturman operation See, The discussion of organized crime in Chapter 4 of this Part. 2060 id. 2061 id. 2062 id. 2063 id.; Some sources estimate the number of "adults only" pornographic outlets to be sixteen thousand. Los Angeles Hearing, Vol. II, Dennis Sobin, p. 259. 2064 interview with Sergeant Donald Smith, Los Angeles Police Department (Mar. 9, 1986). 2058 1448 1449 to transport the materials.2065 In essence, the supplier and the distributor are one in the same for this product line at pornographic outlets. Moreover, Reuben Sturman owns numerous pornographic outlets across the country.2066 In some instances, then, he supplies, distributes and sells his own products. Most of the "adults only" pornographic outlets in the United States carry sexual devices and paraphernalia as part of their general stock and account for approximately fifty percent of total sales of theoe products.2067 Sexual devices and parapher- nalia are sold along with sexually explicit magazines, paperback books, periodicals, videos and films. The remainder of these products are distributed through mail order operations.2068 Advertisements for such goods are found in sexually explicit paperback books, magazines and tabloids nationwide.2069 sometimes, these products are advertised through direct mail. 2065 interview with Ted Mcllvenna, President, Institute for the Advanced Study of Human Sexuality (Mar. 8, 1986). 2066 interview with Detective Robert Peters, Los Angeles Police Department (Mar. 9, 1986). 2067 interview with Ted Mcllvenna, President, Institute for the Advanced Study of Human Sexuality (Mar. 8, 1986). 2068 cook, The "X"-Rated Economy, Forbes 81(Sept. 18, 1978); Interview with Ted Mcllvanna, President, Institute for the Advanced Study of Human Sexuality (Mar. 8, 1986). 2069 see, The Imagery Found Among Magazines, Books, Films in "Adults Only"" Pornographic Outlets in Chapter 9 of this Part. 1450 H. PAPERBACK BOOKS Production The volume of sexually explicit paperback books which have been published is tremendous. The 1970 President's Commission on Obscenity and Pornography estimated that approximately five thousand new "adult" titles were published each year.20 Recent studies of this segment of the industry suggest that while it is doubtful that five thousand sexually explicit paperbacks are still published each year, the actual number published is still large.2071 Two major publishers of sexually explicit paperbacks are Star Distributions, Inc., and Greenleaf Classics.2072 star Distributors, Inc., is located in New York City and is alleged to be controlled by Robert Dibernardo.2073 Greenleaf Classics is 2070 Sampson, Commercial Traffic in Sexually Oriented Materials in the United States (1969-1970), in 3 Technical ReporT of the Commission on Obscenity and Pornography 98(1971). 2071 Eisenberg, Toward a Bibliography of Erotic Pulps, 152j . -J. of Popular Culture 175, 176( 1982) ; See, The Imagery Found Among Magazines, Books, Films in "Adults Only" pornographic Outlets, infra. 2072 interview with Daniel Eisenberg, Modern Languages and Linguistics Department, Florida State University (Apr. 10, 1986). 2073 See, The discussion on organized crime influence in the pornography industry for more information on Robert Dibernardo and Star Distributors, Inc. 1451 located in San Diego, California.2074 William Hamling, Greenleaf's director in 1971, was convicted of obscenity violations for publishing the Illustrated Report of the President's Commission on Obscenity and Pornography.2075 The content of sexually explicit paperback books is similar to the content of any other sexually explicit medium.2076 Incest, sadomasochism, bondage and discipline, bestiality and sexual acts involving children are all common themes in these books.2077 Current paperbacks available include titles such as Suckalot Wife, Grandma's Homey Visit, Daddy's Sweet Slut, Hot, Wet Nun, Transvestite in Chains, Vietnamese Pleasure Girls, Rape High School, Rhonda's Trained Dobermans, Pony for Daughter and Tying up Rebecca.2078 Paperback books often are developed as part of a series.2079 Such series include Siren Slaveqirls, Tales of Terror, Pedophilia in the American Family, Incest Tales, and Forbidden Fantasies.2080 The cover of these paperbacks is often illustrative of their 2074 Eisenberg, Toward a Bibliography of Erotic Pulps, 15 J. of Popular Culture 175, 179 (1982). 2075 Id. at 180. 2076 see, The Imagery Found Among Magazines, Books, Films, in "Adults Only" Pornographic Outlets in Chapter 9 of this Part. 2077 2078 2079 2080 Id. Sl- id. Id. contents.2081 I want All Night Abuse pictures a kneeling man about to whip a partially nude, large-breasted woman who is bound, gagged and crying.2082 Naughty Family Urges depicts two nude men and two nude women involved in orgy-like sexual activity.2083 Kneeling for Daddy depicts the back view of a muscular man from the waist down including the buttocks and genitals. A pigtailed girl with one 'oceast exposed and holding a lollypop can be seen through his legs.2084 The paperback books are very detailed in their descriptions of sex-related themes and acts and are often written at an elementary school reading level.2085 Tne bOOks are usually between one hundred and two hundred pages long and have retail cover prices of $2.95 to $4.95.2086 These books generally do not provide specific information about the authors of the books. 2087 Many books do not even include the name of the author.2088 Andf when the author's name 2081 2082 2083 2084 2085 2086 Jd.. Id. Id. Id. 2087 interview with Daniel Eisenberg, Modern Languages and Linguistics Department, Florida State University (Apr. 10, 1986). 2088 I(j. This is particularly true with Star Distributors.Id. 1452.1453 is given, many times this name is fictitious.2089 The majority of publishers care little about the literary quality of these paperbacks and pay authors small lump sum amounts of five hundred dollars per book or employ in-house authors on salary who write these paperbacks full time.2090 Many sexually explicit paperback books contain advertisements on the back cover or the inside flap.2091 The advertisements may be for sexually explicit paperbacks, magazines, or sexual devices and paraphernalia.2092 some paperbacks also have personal advertisements.2093 Personal advertisements often contain names and addresses or may use a confidential number postal exchange system for correspondence with the individual described in the advertisement.2094 These paperbacks also contain order forms for the sex related products shown in the advertisement.2095 When ordering, 2089 Eisenberg, Toward a Bibliography of Exotic Pulps, 15 J. of Popular Culture 175, 176(1982). 2090 Id. at 181. 2091 See, The Imagery Found Among Magazines, Books, Films in "Adults Only" Pornographic Outlets in Chapter 9 of this Part. 2093 id.; One such advertisement read: "Animal of Action Sexy Model has those hard to find and elaborate poses availablel Tell her what you want to see, from golden showers, slaves, master, animals and action or bi-scenes, I ah, should I say I can pose anyway you want, live or in person or by mail. Send $10 in cash with your order." 2094 id. 20i>5 Id. the purchaser is required to sign a release on the form that states he or she is over age of eighteen.2096 The product or personal advertisement orders may be paid for by cash, check, money order, or credit card.2097 2096 2097 Id. Id. 1454 1455 Distribution Star Distributor is not only a major publisher, but also a 2098major distributor of sexually explicit paperbacks. These sexually explicit paperback books are distributed through "adults only" pornographic outlets across the country. These paperbacks are also sold through mail order operations advertised in sexually explicit magazines, tabloids and other paperback books. Sexually explicit paperback books are advertised in sexually explicit magazines, tabloids and other paperbacks. These books are also advertised in some Book Club publications and Publisher's Catalogs. (I 2098 see, The Imagery Found Among Magazines, Books, Films in "Adults Only" Pornographic Outlets in Chapter 9 of this Part. I. TABLOIDS Production There are few nationally distributed sexually explicit 2099 tabloids. The vast majority of sexually explicit tabloids are regional publications.21°° Some of these tabloids are published by a swinger or sex club.2101 Others are established by individuals or regional corporations.2102 Most of the tabloids are independently owned.2103 Sexually explicit tabloids vary in their sexual explicitness and content diversity. Some contain all photographs. Others contain text and photographs. The photographs depicted in some of these tabloids include sadomasochistic activities, sexual acts between two women, masturbation, oral-genital contact, and vaginal and anal intercourse. The text may be sexually oriented or of a general interest nature. The advertisements in these tabloids are mostly regional and for sexually related goods and services. The tabloids often 2099 The best known of these tabloids is Screw Magazine. Even Screw Magazine is predominantly regionallycirculated (seventy percent in New York). Interview with Dennis Sobin, President, First Amendment Consumer and Trade Society (FACTS)(Apr. 11, 1986). 2100 M. 2101 id. 2102 id. 2103 id. 1456 1457 c contain advertisements for sexually explicit video tapes, films, photo sets, magazines and paperback books. Sexual parapher- nalia, aphrodisiacs, and sadomasochistic devices are also advertised. The majority of the advertisements in tabloids are for escort services, prostitution, massage parlors, sexually explicit telephone messages, and classified listings. Advertise- ments comprise a significant portion, if not the majority, of the tabloids. The following examples of advertisements are from the Hollywood Press. The Hollywood Press is published weekly and sold predominantly California.2105 Two advertisements for escort agencies included: International Escorts Featuring Beautiful Blondes, Brunettes, Blacks and Orientals. Master Charge & Visa Accepted. 24 Hours at Your Location for Your Convenience & Pleasure . . . And, Gourmet Treats Escort Agency Menu (Take Out) Entrees - Blondes, Brunettes and Redheads (long, shoulder- length, straight or curly) - Busty or Slender, Classic Builds (38-25-36; 34-23- 34; 36-24-36, etc.) - International & American Beauties - Tall to Petite - Novices to Mature "Experts"2106 Each Dish: Available individually or in any combination . . . Prepared to order . . . Served for Short but Satisfying Meal or Full Course. Delivered: 2104 see, The Imagery Found Among Magazines, Books, Films in "Adults Only" Pornographic Outlets in Chapter 9 of this Part. 2105 Hollywood Press, July 5, 1985, at 2. 21°6 Id. at 11. 1458 ANYTIME. Checks & All Maior Credit Cards Accepted. Delicious Dolls Interviewed. Other advertisements for sex-related services included: CLINIC specializing in Special Specialties. - Bondage and Discipline - Two Completely Equipped Dungeons - Enemas - Give & receive - T.V.'s - Complete Wardrobes, Maids Outfits - Infantilism - Diapers, Rubber pants - Spankings - The Best in Town - Wrestling - Mats and Showers Available - Videos & Slides - For Your Viewing Pleasure5 Dominants 5 Submissives Open 7 Days A Week, Visa, Mastercharge . . . 2108 GOLDEN RAIN. Drips & Drips, Golden Showers, Cum Down My Crotch, Let Me Stand Over You & Give You My "GoldenJuices! Call . . .2109 SHE MALE. Exceptionally attractive transsexual, flawless complexion, refined features, cock intact. Cauc. brunette, 24 yrs, $100 cash 1/2 hour. In call. Clean cut, muscular athletes 18-30 free . . .,2110 The classified advertisement section of the Hollywood Press edition surveyed also had help wanted advertisements. These included advertisements for nude models, escorts, nude dancers, performers and masseuses.2111 2107 2108 2110 IcU Id. at 21. !£• Id. 2111 it should be noted that the fact that a publication has advertisements for prostitution does not make it a sexually explicit publication. Sexual explicitness refers to the publication as a whole, not simply its advertisements. 1459 Many of these tabloids are produced in-house. This has been made possible by the advent of inexpensive machines which have typeset and photo screening capabilities.2112 These machines can now be purchased for approximately six thousand dollars.2113 2112 interview with Dennis Sobin, President, First Amendment Consumer and Trade Society (FACTS) (Apr. 11, 1986). 2113 id. Distribution Sexually explicit tabloids are generally published and distributed on a regional basis. These tabloid publishers exercise several options in distributing their product. A few sell their tabloid to conventional distributors who sell to newsstands.2114 Many publishers sell their tabloids to distri- butors who specialize in sexually explicit products and sell to "adults only" pornographic outlets.2115 others sell directly to newsstands and "adults only" pornographic outlets in their area.2116 still others sell their tabloids from street vending machines.2117 The selling of these tabloids through street vending machines is particularly problematic because children can view and purchase these publications. Sexually explicit tabloids are also offered through sub- scription and mail order sales.2118 Tne tabloids advertise through direct mail, other regional tabloids and magazines, and even some radio stations.2119 21" Id. 2H5 Id. 2H6 Id. 2117 T(1 2118 Id. 2119 Dennis Sobin states that sexually explicit magazines, such as Playboy, sell their mailing lists. These lists are extremely useful to these small publications. Id. 1460 1461 »/o The cost of these tabloids ranges from one to four dollars.2120 Some cost as much as eight dollars.2121 The 9122majority, however, cost two dollars. 2120 2121 2122 id. 1462 J. PHOTO SETS Production There is a market among consumers of sexually explicit materials for individual custom made photographs and photo sets.2123 This portion of the industry can best be described as a "cottage industry" since the product is often homemade or made by very small scale commercial producers.2124 Individuals who produce these photos sets can do so with minimal overhead. The necessary costs for producing photo sets include renting or buying a camera, purchasing film, photo processing, location and model fees and mailing. Models are often found by the photographer placing advertisements for "models" in newspapers .2125 The photographer's home is often used as a studio.2126 These photo set photographers must find photo processors who will develop their sexually explicit film. Some photographers use general commercial photo processors including one hour photo 2123 see, Los Angeles Hearing, Vol. II, Charles Sullivan, p. 66; Los Angeles Hearing, Vol. II, Caryl Cid, p. 127; Los Angeles Hearing, Vol. II, Brian Cid, p. 134. See also, The discussion of advertisements in tabloids for these photo sets. 2124 Sexually explicit magazines include solicitations for photographs through amateur photograph contests. See, Dbmiriatrix Doma in, No. 17, p. 33. 2125 Los Angeles Hearing, Vol. II, Charles Sullivan, p. 65,76B. 2126 Id. at 66. 1463 services.2127 others use mail order services which advertise "confidential and uncensored" photo processing in sexually explicit publications.2128 One such photo processing lab was 9 1 9 QCrystal/Spectra Photo in Syracuse, New York.*-11" Spectra Photo was the focus of a Federal Bureau of Investigation undercover operation in 1981 and 1982.2130 The sexually explicit photographs knowingly processed by Spectra Photo included depictions of bestiality, excretion, homosexuality, examples of extreme mutilation, castration, torture and child pornography.2131 These types of photos were processed on a regular basis.2132 Individual photographs or photo sets often depict sex related activities not generally represented in commercially 2127 id. 2128 Los Angeles Hearing, Vol. II, Caryl Cid, p. 127. 2129 id. 213° Id. at 127-29; United States v. Petrov, 747 F.2d 824(2d Cir. 1984). 2131 icj. at 129. In a different case in Colorado a "search resulted in the seizure of approximately five thousand photographs, negatives and video cassettes depicting young men and women in their late teens and early twenties in various sadomasochistic and other types of pornographic poses. Various props for these photographs such as wooden stocks, wooden racks, a jail cell, ropes, boards with nails protruding from them and other torture devices were located." Los Angeles Hearing, Vol. II, Charles Sullivan, p. 66. See also, The Imagery Found Among Magazines, Books, Films in "Adults Only" Pornographic Outlets, infra, for a description of depictions from the Spectra Photo case which appeared in the magazine Big Tit Dildo Bondage. 2132 Chicago Hearing, Vol. II, Frederick Scullin, p. 56E. 1464 produced pornography. These activities include piercing,2133 scat,2!34 castration and extreme sadomasochism. The photo set business enables a producer to offer "custom" service.2135 often the customer writes or telephones his or her requests and photographs are taken of the described activity.2136 The photographs may be ordered through contacting the individual photographer directly or through a mail order service. Sexually explicit photo sets are a lucrative endeavor for photographers and photo processors alike. Photo sets usually include six to ten photographs and sell for nine to twenty-five dollars to individual consumers.2137 Some film processors have made substantial revenues from 2133 "Piercing" is a slang term for a paraphilia in which sexual arousal requires piercing the skin,' and often the genitals, with pins, needles, and other sharp instruments. 2134 "scat" is a slang term describing sexual conduct in which feces are either used or ingested by one of theparticipants. 2135 "Love to model in person or by mail. Custom poses. Any position, any attire, any partners. Nothing too radical. Try me. Send a 55 bill for 3 gorgeous color photos or send a $20 bill for 10 mind-shocking photos and private phone. You won't be disappointed." Trained Teen Slave and Over Daddy's Knee 174(1984). See also, Dominatrxx Domain, No. 17, p. 34; FundgeonTimes, Vol. 1, No. 4, p. 15. 2136 A Federal Bureau of Investigation agent testifiedbefore the Commission, "... the actual order from the customer was located in his or handwriting. Some of these orders were for custom shots with a customer actually describing the poses that the models should effect and naming particular models they wanted to see in these photographs." Los Angeles Hearing, Vol. II, Charles Sullivan, p. 68-69; See, Washington Hearing, Vol. II, KenLanning, p. 30-31. 2137 Los Angeles Hearing, Vol. n, Charles 1465 o processing and duplicating sexually explicit photo sets. Spectra Photo, mentioned above, earned approximately six hundred thousand dollars from April 1, 1981, until March 31, 1982, through its ") 1 ^ ft mail order pornographic photo processing business. Federal Bureau of Investigation agents were able to identify that the volume of business attributable to one individual producer, Mr. Byrum, accounted for thirty thousand dollars of the six hundred thousand dollar total.2139 Moreover, some of these photo set photographers sell their photos to sexually explicit commercial publications. These publications often offer the photographer hundreds of dollars for a few rolls of film.2140 2138 Los Angeles Hearing, Vol. II, Caryl Cid, p. 127; See also, Chicago Hearing, Vol. II, Frederick Scullin, p. 45. 2139 Special Agent Brian Cid stated, "... from 1978 until 1982 Byrum did thirty thousand dollars worth of business with Spectra. Byrum, doing business as Dorthy Byrum, operated a mail order company from his apartment in Pottsville, Pennsylvania. He specialized in photographs depicting the bondage and torture of women. He sold the photographs in color set packages of ten for eight dollars and black and white set packages for sex dollars. His mailing list consisted of over three hundred customers nationwide." Los Angeles Hearing, Vol. II, Brian Cid, p. 134. 2140 Los Angeles Hearing, Vol. II, Charles Sullivan, p. 72. 1466 Distribution Once the photo set photographer has taken the photographs and had the film processed he has several options. He may sell the final product to commercial publishers for reprint in their publications or he may sell them to individual consumers. The photo sets sold for individual consumption are available at "adults only" pornographic outlets2142 and through mail order operations offering sexually explicit products. Often, the photographers advertise their photo sets in sexually explicit publications.2143 2141 Id. at 68. 2142 See, The detailed discussion of "adults only" porno- graphic outlets in this Chapter. 2143 ^e advertisements often accompany a photograph. The following are a few examples of these advertisements. "Ten photos of this faceless slave. She is bound onto a metal chair. Rope is wrapped around her neck and chest. Great fantasy set." Fundgeon Times, Vol. 1, No. 4, p. 10. "Tim's slave girl is bound upside down hand and foot. Clips on her nipples and pussy. See her twist and turn. Ten good shots."Id. "This is one of the best selling photo sets. Debbie was bound to the bed and a riding crop as well as severe nipple clamps were used on her. The marks are real!!" Id. at 12. 1467 K. AUDIO TAPES Production In order to commercially produce a sexually explicit audio cassette tape the producer needs a cassette recorder and performers. He must duplicate and package the tape in-house or through an outside firm, or sell the master to a distributor who will handle this process for him. These tapes look and are packaged like general music cassette tapes. The commercially produced audio tapes contain sexually explicit conversations and acts. Audio tapes are similar to pre- recorded Dial-A-Porn recordings.2144 Both are audio recordings of sexually oriented conversations or activities. The activities described in these tapes include sadomasochistic acts and sexual relations with children, among others. The Commission also heard testimony about homemade non- commercial audio tapes. One ex-prostitute testified how her pimp made recordings of sexual activities and brutal beatings.2145 Another woman testified that her husband wanted to record her domination of him in a sadomasochistic scenario:2146 There was another time when he wanted to record on a cassette tape recorder the sounds of him being spanked 183. 2144 see., The discussion of Dial-A-Porn in this Chapter. 2145 Washington, D.C., Hearing, Vol. I, Sarah Wynter, p. 2146 Chicago Hearing, Vol. I, Diann, p. 29N. 1468 and me being the dominant female giving him a punishment. He wanted the tape so he could listen to it on his own later for pleasure.2147 While these non-commercial audio tapes are generally produced for private consumption, they may be, and have been, shared with or distributed among close friends and associates. 2147 Id. 1469 Distribution Audio tape recordings of sexually explicit conversations and activities are available in "adults only" pornographic outlets and mail order operations throughout the United States. The mail order audio tape dealers often advertise their product in sexually explicit magazines and tabloids. 1470 L. PEEP SHOWS Production The average peep show booth has dimensions of about three by five feet. The booths are partitioned four-sided cubicles generally made out of wood or plastic. Often, a bench is built onto one of the walls. On the wall next to the bench is the coin or token-operated box.2150 A customer places coins or tokens into the box and the movie inside the booth is activated. If a film is shown, the booth is equipped with a movie projector.2151 If a video is shown, the peep show booth is wired ? 1 S 2so that a selected video appears on the television screen. Sometimes, the video system .in the booths is computer operated.21" If the peep show involves live performances, there is usually a clear partition between the performer and viewer. Peep show movies come in eight millimeter, sixteen 2148 Washington, D.C., Hearing, Vol. II, Dennis DeBord, p. 9; Some booths are as large as four feet by eight feet. New York Hearing, Vol. I, Bookstore Operator, p. 127. 2149 Washington, D.C., Vol. II, Dennis DeBord, p. 99. 2150 id. at 97. 2151 Id_. at 99. 2152 id. 2153 New york Hearing, Vol. I, William Kelly, p. 84. 11471 millimeter or VHS format.2154 The eight millimeter films do not have sound and are shorter in length than the videos. The movies include homosexual, heterosexual and sadomasochistic sexual activities between two women, coprophilia, bestiality or simulated juvenile sexual activities.2155 2154 Washington, D.C., Hearing, Vol. II, Dennis DeBord, p. 97-98. 2155 m. at 98. 1472 Distribution Some "adults only" pornographic outlet owners buy their peep show booths outright while others rent their booths. The initial cost of purchasing a peep show booth is between twenty and thirty thousand dollars.2157 if booths are rented, the store owner usually shares the profits of the booths with the lessors in exchange for the lessor's installation and maintenance of the booths.2158 Inside the booths the viewer may see approximately two minutes of the movie for twenty-five cents.2159 AS the number of sexually explicit scenes or diversity of sexual acts increase, the viewing time decreases.2160 Tokens or quarters are needed to operate the peep shows and can be obtained at the outlet's sales counter. The average peep show booth has enough room for two adults to stand shoulder to shoulder. The inside of the booth is dark, when the door is closed, except for the light which emanates from the screen or enters from the bottom of the door. The inside walls of the peep show booths are often covered 2156 New York Hearing, Vol. I, Bookstore Operator, p. 145. 2157 LOS Angeles Hearing, Vol. I, Robert Peters, p. 105. 2158 1(3. at 149. 2159 Washington, D.C., Hearing, Vol. II, Dennis DeBord, p.98-99. 2160 New York Hearing, Vol. I, Bookstore Operator, p. 128. 1473 o with graffiti and messages.2161 The graffiti is generally of a sexual nature and consists of telephone numbers, names, requests and offers for homosexual acts, anatomical descriptions and sketches.2162 The booth may also contain a chart which is used to schedule appointments and meetings in that particular booth.2163 in some cases, this arrangement has been used for the solicitation of prostitutes. After purchasing tokens from the store clerk,2164 the patron selects the type of movie he wishes to view. A brief description of the film is usually posted on the outside of the peep booth door.216^ A number or letter is assigned to each film and indicates which coin box inside the booth corresponds with the selected movie. The film or video tape2166 is operated by placing one quarter, coin, slug or token into the coin box, which, in turn, activates the movie projector or video tape player to begin the 2161 Washington, D.C. Hearing, Vol. II, Dennis DeBord, p. 99-100. 2162 ia. 2163 An appointment schedule may indicate a person's name, age, penis size, sexual preference, age and description of the sexual partner being sought, such as "young boy looking for . . ." and the date, time and location of a future meeting. Id. 2164 gome stores impose a minimum number of tokens which must be purchased. 2165 Washington, D.C., Hearing, Vol. II, Dennis DeBord, p. 97. 2166 some peep booths are equipped with closed circuit television. Houston Hearing, Vol. I, W.D. Brown, p. 41. 1474 movie.2167 Quarters or tokens must be repeatedly inserted to continue viewing the movie2168 which may last from ten to ninety minutes.21*^ In addition to movie viewing, the booths also provide places for anonymous sexual relations. 17" Many booths are equipped with a hole in the side wall between the booths to allow patrons to engage in anonymous sex.2171 The holes are used for oral and anal sexual acts.2172 Sexual activity in the booths involves mostly males participating in sexual activities with one another.2173 However, both heterosexual and homosexual men engage in these activities.2174 The anonymity provided by the "glory holes" allows the participants to fantasize about the gender and other characteristics of their partners.2175 2167 id,- Washington, D.C., Hearing, Vol. II, Dennis DeBord,p. 98. 2168 Washington, D.C., Hearing, Vol. II, Dennis DeBord, p.98-99. 2169 interview with Detective Robert Peters, Los AngelesPolice Department (Mar. 10, 1986). 2170 Houston Hearing, Vol. I, W.D. Brown, p. 36. 2171 The holes are commonly referred to as "glory holds."Id. 2172 Interview with Detectives, Washington, D.C.,Metropolitan Police Department, in Washington, D.C. (Feb. 21,1986). 2173 Washington, D.C., Hearing, Vol. II, Dennis DeBord, p.101-03. 39. 2174 icK at 103; Houston Hearing, Vol. II, W.D. Brown, p. 2175 Houston Hearing, Vol. I, W.D. Brown, p. 39. 1475 The booth is sometimes equipped with a lock on the door.2176 Many patrons intentionally leave the door unlocked. Some patrons look inside the booths in an attempt to find one already occupied.2177 It is commonplace for a patron to enter an occupied booth, close the door behind him, and make advances toward the occupant.2178 He may grab the occupant's genitals in an effort to invoke sexual activity2179 or attempt to arrange a later sexual encounter.2180 The sexual activities reported in peep show booths include masturbation, anal intercourse, and fellatio. Inside the booths, the floors and walls are often wet and sticky with liquid or viscous substances, including semen, urine, feces, used prophylactics, gels, saliva or alcoholic bev- erages.2181 The soles of a patron's shoes may stick to certain areas of the floor.2182 The booths are also often littered with cigarette butts and tobacco.2183 The trash and sewage and the application of disinfectants or ammonia on occasion create a 101. 2176 Washington, D.C., Hearing, Vol. II, Dennis DeBord, p. 2177 Id. at 101-02. 2178 Id_. at 101. 2179 Id. at 101-02. 21SO id. at 102. 2181 Id. 2182 id. 1476 particularly nauseating smell in the peep booths.2184 It has been estimated that peep shows are the biggest moneymaking portion of this industry.2185 Annual net profits for peep show booths alone have been projected at two billion dollars.2186 2184 Id. at 100-01. O 1 QC New York Hearing, Vol. I, William Kelly, p. 85 2186 Id. 1477 o III. OUTLETS a. "Adults Only" Pornographic Outlets "Adults only" pornographic outlets can be found in both large metropolitan areas and many small towns throughout the United States. Although these "adults only" pornographic outlets are frequently located in downtown metropolitan areas, they have also appeared in business and residential sections of suburban communities.2187 The windows of "adults only" pornographic outlet storefronts are usually opaque to prevent the general public from looking into the store from the outside.2188 Prominently displayed on the outside facade of the outlets may be large signs such as "adult books, movies and magazines" and "$.25 movies" to entice patronage.2189 These signs are sometimes accompanied by neon and flashing lights designed to attract attention and arouse public curiosity. Sometimes, there are also signs displayed which say "no one under 18 is permitted inside."2190 Although most states require patrons to be at least eighteen years old to enter these establishments, few, if any, stores have employees at the point 95. 2187 Houston Hearing, Vol. I, W.D. Brown, p. 35. 2188 Washington, D.C., Hearing, Vol. II, Dennis DeBord, p. 2189 id. 2190 Id. at 96. 1478 of entry to verify ages and enforce this law. The inside of a "adults only" pornographic outlet can be divided into distinct display and sales areas. The display areas include sections devoted to sexual devices and paraphernalia, reading materials and peep show booths.2191 in the typical pornographic outlet it is not uncommon to see anywhere from 1,000 to 2,000 different items for sale.2192 In some "adults only" pornographic outlets, patrons are required to pay a nominal fee to get into the sexually explicit material and peep booth areas. This fee is sometimes deducted from a future purchase.2193 The "novelty section" of the average pornographic outlet contains numerous sexual devices and paraphernalia such as dildos, rubber vaginas, tools used to simulate sodomy, medical appliances to spread anal and vaginal orifices, "love" creams, blow-up dolls with orifices, stimulants, inhalants,2194 whips, 2191 Houston Hearing, Vol. I, Brown, p. 37. 2192 Houston Hearing, Vol. I, W.D. Brown, p. 37. 2193 id. 2194 it nas been found that most of these chemical agents contain volatile nitrites which are schedule D drugs. These chemical agents are primarily used for the alleged stimulation of sexual desires and sexual arousal, although many are marketed under the pretext that they have other purposes such as room deodorizing or for use as perfume. "The Spanish fly," a prominent chemical product on the market, has a high concentration of caffeine. Houston Hearing, Vol. I, W.D. Brown,p. 38-39. 1479 158-315 Vol. 2, O - 86 - 15 leather harnesses, edible panties and rubber clothing articles.2195 The "magazine section" is often divided into categories such as heterosexuality, homosexuality, lesbianism, sadomasochism, bondage and discipline, excretion, bestiality and simulated child pornography.2196 There are many other types of magazines which 2197are meant to appeal to specific sexual interests. -1 For example, Mother's Milk2198 depicts women who have milk in their breasts engaged in various sexual acts that include squirting milk. Poppin* Mamas2199 depicts pregnant women engaged in various sexual acts including lesbian activities.2200 The magazines are often wrapped in cellophane to prevent customers from thumbing through the magazines, to restrict law enforcement officers from examining the magazines, and to provide arguments in the event of prosecution as to "lack of knowledge" by outlet id_.. Washington, D.C., Hearing, Vol. II, Dennis DeBord, p. 96. 2196 Washington, D.C., Hearing, Vol. II, Dennis DeBord, p. 96. 219? id. at 96-97. 2198 id. at 96. 2199 id. 2200 For a more thorough discussion and description of magazines, See, The Imagery Found Among Magazines, Books, Films in "Adults Only" Pornographic Outlets in Chapter 9 of this Part. One expert has advised the Commission Staff that the American Psychiatric Association could rewrite its Diagnostic Statistical Manual Sections on psycho-sexual disorders based on the various subjects of sexually explicit magazines. 1480 personnel.2201 The "paperback book" section contains paperbacks with a variety of themes including incest, child sex,2202 bestiality,2203 group sex,2204 and sadomasochism.2205 A Ponv for Daughter, Teen Sex Slaves of Saigon, Family Lovers and Whipped Wives are among current paperback titles.2206 The "movie section" of these "adults only" pornographic outlets contain mostly eight millimeter films and video tape cassettes. There are thousands of titles on the market today on subjects running the gamut of sexual behaviors with some appealing to specific paraphilias.2207 Eight millimeter films retail for approximately eighty dollars in these stores.2208 video tape cassettes sell for sixty to eighty dollars depending on the type and quality of the 2201 • Houston Hearing, Vol. I, W.D. Brown, p. 37. Some of these outlets also have a list of vice squad officers so they can be identified and not sold sexually explicit materials. Id. at 39. — 96. 2202 Washington, D.C., Hearing, Vol. II, Dennis DeBord, p. 2203 id. 2204 id. 2205 id. 2206 see, The discussion of paperback books observed in "adults only" pornographic outlets in The Imagery Found Among Magazines, Books, Films in "Adults Only" Pornographic Outlets in Chapter 9 of this Part. 2207 Washington, D.C., Hearing, Vol. II, Dennis DeBord, p.96. 2208 Id. at 97. 1481 product.2209 In addition, an "adults only" pornographic outlet may 2210contain anywhere from five to one hundred "peep show booths". These booths are usually located in a secluded section near the rear of the establishment. Some pornographic outlets also have live sex acts.2211 "Show World", in the Times Square District of New York City, has booths where patrons can watch nude dancers and observe live sex acts.22*2 Some booths are equipped with telephones so that the 0 0 1 Tpatron can engage in a conversation with the nude performer. ^±J Some booths have glass between the patron and the performer while others are constructed with holes in the glass to permit physical contact between the patron and the performer.2214 Most "adults only" pornographic outlets advertise their services and products on their storefronts. Some of these establishments advertise in local phone directories like any other business establishment. Some also advertise through 2209 Los Angeles Hearing, Vol. I, William Roberts, p. 71; Miami Hearing, Vol. I, Mike Berish, p. 91; See, The discussion and description of the sexually explicit video industry for further information. 2210 New York Hearing, Vol. I, William Kelly, p. 84; See, The detailed discussion of peep show booths in this Chapter. 2211 Houston Hearing, Vol. I, W.D. Brown, p. 42. 2212 commission staff survey of "adults only" pornographic outlets, New York City Times Square District, October, 1985. 2213 id. 1482 sexually explicit tabloids and magazines, flyers and business cards. Pornographic outlets generally, and peep shows in parti- 2215cular, are a primary focus of organized crime involvement. These outlets are primarily a cash business and as such, it is 2216 Onerelatively easy to "launder" or hide actual profits witness who had operated numerous "adults only" pornographic outlets, advised, that the daily receipts for his stores were sixteen hundred dollars a day in quarters from peep shows and three hundred fifty dollars a day from magazines sales.2217 The store operator also stated it was common practice in this industry, like many other businesses, to keep two sets of financial records: one for the Internal Revenue Service and a second personal set.2218 The witness observed that it was also commonplace to state no more than one hundred dollars as daily gross revenue for an "adults only" pornographic outlet,2219 although he estimated that his stores would gross between sixty and eighty thousand dollars a month.2220 The impact of sexually explicit videos on "adults only" 2215 see, The discussion of organized crime involvement in the pornography industry for further information. 2216 New Y0r|< Hearing, Vol. I, Bookstore Operator, p. 142- 55. 2217 Jd. at 149. 2218 I£. at 146-47. 2219 I<J. at 144. 2220 Id. at 149. 1483 pornographic outlets is uncertain. Videos are being increasingly used in the outlets' peep show booths. In addition, the stores sell and rent videos as part of their general business. In this way, the proliferation of sexually explicit video tape cassettes has become a positive revenue source. In addition, some individuals patronize "adults only" pornographic outlets primarily for the atmosphere and potential for sexual activity. Others go to these outlets to purchase sexually explicit magazines, books or sexual devices. These patrons will undoubtedly not be significantly influenced by the availability of video. At the same time, however, the "adults only" pornographic outlet is no longer the exclusive source for an individual who wants to buy or rent a sexually explicit video tape cassette. He may rent sexually explicit videos at general video retail outlets which also stock general release and children's videos. He may then view them in the privacy of his own home. In sum, it is unclear at this point what long term effects sexually explicit videos will have on these "adults only" porno- graphic outlets.2221 Nearly all of the general information stated above regarding the typical outlet and peep show booth, except financial infor- mation, was observed first hand by the members of the Commission. As part of the public hearings conducted in Houston, Texas, the 2221 see, Section B in this Chapter for a detailed dis- cussion of sexually explicit video tapes. 1484 Attorney General's Commission on Pornography toured three of the fifty "adults only" pornographic outlets operating in that city. The Commissioners were accompanied on this tour by several detectives from the Houston City Police Department. The three locations visited were Mr. Peepers, 4330 Richmond Highway; Hillcroft News, 6455 Hillcroft Street and Talk of the Town, 8228 Gulf Freeway. During this tour, the Commissioners observed the materials available in the outlets, the peep show booths - complete with patrons engaging in explicit sexual activity - and the generally unhealthy environment posed by the sexual activity and debris in the store. Each of the outlets viewed by the Commission, which were described as representative of those in Houston generally, were divided into two areas. An entering patron initially encountered a room well stocked with sexually explicit publications with covers depicting a variety of homosexual as well as heterosexual activities. A number of materials portraying sodomy and sado- masochistic acts were also conspicuous. Several of the stores had glass cases displaying an assortment of sexual devices and paraphernalia. The rear portion of each store contained peep show booths in which patrons could observe segments of sexually explicit movies for twenty-five cents per minute or two of film footage. Some outlets charged admission to the peep booth area, typically one dollar. The peep show booth area of each of the outlets toured had 1485 o minimal illumination, stark decor and a pervasive darkness. The peep show booths were equipped with holes in the wall to enable genital contact with patrons in other booths. Uniformly the walls and floors of booths were stained with substances identi- fied by the accompanying vice detectives as semen, urine, saliva and feces. In addition, individual Commissioners took private tours of the New York Times Square area and Washington, D.C., pornographic retail establishments. 1486 b. General Retail Outlets "Adults only" pornographic outlets are by no means the exclusive retailers of sexually explicit materials in the United States. Sexually explicit magazines rely heavily on single issue sales in convenience stores and general bookstores and newsstands across the country.2222 Some of these mainstream stores now also sell "X" rated video tapes.2223 Sexually explicit magazines and tabloids are also sold at newsstands. Newsstands often place these magazines in racks alongside non-sexually explicit magazines. This often means that such magazines are in full view of passersby and children. Vending machines are also used as a retail outlet for sexually explicit tabloids.222* These unmonitored machines pose serious problems because anyone can purchase a tabloid from these machines and anyone can view the exposed portions of the tabloid. 2222 por example, of the three top selling sexually explicit magazines at least fifty percent or more of their total sales in 1982 were attributed to single copy sales. Audit Bureau of Circulation, ABC Audit Report - Magazine for Playboy, Penthouse,and Hustler, 1982. 2223 The Commission heard testimony regarding of convenience stores nationwide which sell pornographic magazines and video tapes. Thousands of such retail outlets have stopped selling sexually explicit magazines in recent months. 2224 See, The discussion of newspaper distribution forfurther information. 1487 IV. MILITARY BASES The Commission contacted Army, Air Force and Navy Base Exchange representatives to determine what, if any, regulations exist which govern (1) the types of pornographic materials base exchanges, located on federal property, can purchase and sell and (2) the method of display of pornographic materials in the exchanges. Army and Air Force Base Exchanges The individual exchange managers, in coordination with the base commander, make the decision as to which magazines are sold in the Army and Air Force base exchanges.2225 These managers are instructed in the Army and Air Force Exchange Service Manual to tailor the magazine assortment at the exchange to the demand of customers in the local military community.2226 Regulations require magazines which have been classified by the Army and Air Force as "adult-oriented"2227 to be displayed in 2225 Army and Air Force Exchange Service Manual 40-11, Ch. 10, Sec. 2 (Jan. 1985). 2226 id. 2227 Tne "adult-oriented" classification is determined as follows: Army installations: The installation commander should use the consumer advisory council to decide which magazines stocked by the exchange should be classified as adult-oriented for display purposes. The council will meet, when necessary, to review new magazines a specified manner.2228 Once the magazine has been classified as adult-oriented it must be put on the top shelf of the self-service magazine display racks in the exchanges.2229 The magazine front must be completely covered so that only the title is visible to the public.2230 In the case of video cassette films, it is the policy of these military exchanges to offer "G", "PG", "PG-13" and "R" rated videotapes for sale or rent.2231 No "x"rated videos should be available at the exchanges.2232 Tne exchanges feel they can offered fci; sale, and to review the entire assortment every 2 years .... Air Force installations: The exchange manager, in coordination with the installation commander, should decide which magazines stocked by the exchange should be classified as adult-oriented .... On both Army and Air Force installation, departmental policies define magazines to be classified as adult- oriented as tho.se that: (1) When considered as a whole, are patently offensive under contemporary standards of the local military community as to what is suitable material for children, and (2) If openly displayed or with portions of their contents exposed to unconsenting customers or other patrons, would invade those persons' right to privacy. Id. at Sec. 3(a)-(c). 2228 2229 2230 at Sec. 3_4 at Sec. 4. 2231 Interview with Phil Alsup, Washington Legal Counsel, Army and Air Force Exchange Service in Washington, D.C. (Mar. 7, 1986). 2232 1488 1489 draw this line based on a widely accepted MPAA rating system.2233 Marine Base Exchanges The Marine Base Exchange regulations require that "books, periodicals, and recordings sold in exchanges should conform to generally accepted moral standards."223 The base commander is required to establish an offensive literature review board which periodically reviews "adult" publications an|d recordings and 2235submits a report to the commander for his consideration. The base commander then determines what material will be made available at the base.2236 Those "adult" publications which are sold are to be made available for sale in a manner which reduces public exposure and discourages browsing by patrons who are minors.2237 Display methods consistent with this policy include behind the counter sales and display racks which only expose the 2233 see, The discussion of the MPAA rating system in Section A of this Chapter for further information. 2234 Marine Corps Exchange Manual, Ch. 2, Sec. 11, p. 21108. 2235 id. 2236 I(j.; SALE OF "ADULT" TYPE LITERATURE. Commanders will ensure that "adult" type literature sold in Marine Corps exchanges is made available for sale in a manner which reduces public exposure and discourages browsing by patrons who are minors. One method of reducing public exposure to "adult" literature would be to place all such material behind the sales counter, posting notice to "inquire at the sales counter for adult literature." Another method would be to display the literature on the top shelf exposing only the titles. Marine Corps Exchange Manual, Ch. 2 (May 1983). 2237 I£. at p. 21109. 1490 title of the publication.2238 Naval Base Exchanges The Naval Base Exchanges operate much the same way as the Army, Air Force, and Marine Exchanges. The individual Base Commander directly decides what, if any, sexually explicit materials will be available at his Base.2239 The Naval Regulations generally prohibit printed or visual matter which is considered offensive.2240 The types of magazines offered at the 2238 Id. 2239 Interview with Estelle Shenkler, Counsel, Navy ResaleServices Support Office (Mar. 6, 1986). f. Literature and Recordings (1) Policy on Offensive Literature; The sale of magazines, comics, pocket-size books and other periodicals that are considered offensive is prohibited. Magazines, comics, pocket-size books and other periodicals as well as their covers will be screened by the commanding officer or his/her designated representative(s) and those that are considered offensive will not be sold. (2) Policy on Offensive Recordings; The sale of phonograph recordsandotherrecordings (including video tape recordings) deemed offensive is .prohibited. Phonograph records and other recordings as well as their package covers will be screened by the command- ing officer or his/her designated representative(s). Those items considered to be offensive will not be placed on sale .... (4) Screening Program; Using the suggested guidelines, a continuing program which requires regular screening of all adult reading material and adult recordings before they are placed on sale will be maintained by the commanding officer or his/her designated repre- sentative. Any material which is considered offensive will not be sold. An exchange's physical location and patronage are factors to be considered. When a deter- 1491 I o Navy exchanges is based on consumer demand and subject to the approval of the Commanding Officer or his representatives.2241 Sexually explicit materials which are offered at the exchanges must be stocked and displayed so that they are not accessible to children.2242 in addition, no "X" rated video tapes are sold or rented at the Navy exchanges. The Commission received testimony with respect to the manner in which some military commanders have dealt with the prolifera- tion of "adults only" pornographic outlets in the communities adjacent to their bases.2243 in North Carolina, the Commanding Generals of two large military bases at Camp Lejeune and Fort Bragg declared a number of these pornographic outlets off limits mination is made to sell adult type material, it will not be put on open display. Magazines may be offered from racks in which only the title portion of the magazines is visible. Adult type literature and recordings which by virtue of the title or package design are not suitable for open display will be made available, upon request, at such locations as checkout counters, customer service desks or other similar areas where a clerk is in attendance. A sign will be placed on the appropriate racks or counters informing customers that the adult type material is located at designated counters and is available upon request. Counters designated as appropriate to the sale of adult type material will be identified with an informative sign.Navy Exchange Manual, Ch. 4, Part A, Sec. IV, p. 4134, 2.f (Nov. 1984); Id_. at f(l), f(2), and f(4). 2241 Interview with Estelle Shenkler, Counsel, Navy Resale Services Support Office (Mar. 6, 1986). 2242 Navy Exchange Manual, Ch. 4, Part A, Sec. IV, p. 4134, 2.f (Nov. 1984). 2243 New York Hearing, Vol. I, Sam Currin, p. 85. 1492 to military personnel.2244 The action of the commanding officers had the effect of closing these establishments. This result was praised by the citizens in the nearby communities.2245 Tne off limits order was later challenged vigorously in the courts.224*" In its decision dismissing the North Carolina action, the District Court concluded that a military commander has an over- riding duty to safeguard the morals, welfare and discipline of his men and that the military commander may exercise this legitimate and important responsibility to place establishments selling sexually explicit materials off limits.2247 The order by the Chief District Judge in North Carolina upholding the Commanding General's order was affirmed by the Fourth Circuit Court of Appeals.2248 2244 Id. 2245 id. 2246 Enslin v. Fulham, No. 83-137-Civ.-4 (E.D.N.C. 1984). 2247 New v0rk Hearing, Vol. I, Sam Currin, p. 127A-11. 2248 id. at 86; See also, Hustler v. Gsell, Civil Action No. R-79-1482. In 1979, Hustler Magazine,Inc., Chic Magazine, Inc. and Flynt Distributing Company, Inc. filed a legal action against Army and Air Force Exchange Service representatives. The suit charged that the base exchanges in the Capitol Exchange Region refused to sell Hustler and Chic although similar magazines published by their competitors were sold in the exchanges. The plaintiffs claimed that this decision was arbitrary and a violation of their First and Fifth Amendment rights. The base exchange operators argued that they stocked their exchanges based on customer demand and sales potential. The plaintiffs asserted that all of the three base exchanges in question sold Playboy and Penthouse, the two most widely circulated sexuallyexplicit magaz ines for men; Playqirl, the highest selling sexually explicit magazine directed toward women, and Players, another widely circulated sexually explicit magazine. The Court in entering a judgment in favor of defendants, 1493 V.PRISONS Seventeen prison systems were polled regarding their policies for the admission of sexually explicit material into their penal institutions for consumption by inmates.2249 Fifteen of the systems had written policies. All of those with such policies cited state or federal law as the basis for the policies. The United States Bureau of Prisons (BOP), Arizona, California and Wisconsin all use pertinent state or federal statutes solely as the basis for their written policy. No attempt appears to have been made to interpret or apply the statutes. Alabama and Nevada have no written policies regarding sexually explicit material distribution in their penal institutions. However, Alabama does not allow the sale of sexually explicit materials within the system, and will allow only Playboy magazine to be received by inmates. Alabama keeps ten other sexually explicit magazines in the prison libraries. The sole basis for rejection of a publication or materials in the Alabama system is the judgment of the reviewer of this material. based its decision on defendants' testimony that the decision to stock merchandise was a business decision. Hustler and Chic were not excluded because of content. 2249 The seventeen systems included Alabama, Arizona, the United States Bureau of Prisons, "California, Florida, Illinois, Kentucky, Massachusetts, Michigan, Nevada, New Jersey, New York, Tennessee, Texas, Virginia, Washington, and Wisconsin. 1494 The reviewer was not specified in the correspondence from Alabama. Nevada, on the other hand, indicated that no review of materials occurs because there is no written or unwritten policy on the subject. Prison officials are not allowed to conduct censorship of any type. Anything is acceptable, and no provision is made for restricting obscene or unlawful materials. All the other systems that had a written policy named either the warden, superintendent or a designee, or a review committee appointed by the warden or other chief administrator, as the reviewing authority. Alabama, Arizona, Michigan, Texas, and Wisconsin do not specify the reviewing authority, but indicate that a review does take place. In most cases criteria for rejection of sexually explicit material is based on its propensity to be prejudicial to good order and conduct (BOP's only criterion) or if the material is obscene or unlawful. In the case of material being prejudicial to good order and conduct, the decision is made by the reviewing body without much in the way of guidelines. In the case of material being obscene or unlawful, a variety of definitions arose. "Unlawful" is either left undefined or references state or federal law. The definition of obscene is less consistent among the systems. Where obscenity is defined (in seven out of the seventeen), the Miller definition is either used verbatim or is paraphrased in total or in part. Ten of the seventeen states define the type of material to be restricted by 1495 describing the Miller test and/or citing examples. Five of them do both. Washington state is a notable example because the Miller definition of obscenity is used, examples are cited, and, by law, the material in question must not be protected by the United States or Washington State Constitutions. The sex acts defined by the eight systems which chose to specifically describe sexually explicit depictions prohibited in their institutions were fairly consistent. These acts were generally: intercourse, normal or perverted, anal or oral; interest in excretory functions in a sexual context; or masturbation. Some provisions were also made for the lewd exhibition of genitalia. Michigan appeared to have the most restrictive policy. The restrictions pertain to photos of persons in *see through" garments and provides for a list of restricted publications. However, testimony from a Michigan inmate, named Grant H. Hendrick as part of" a Walter H. Annenberg Foundation Criminology Study, indicates that sexually explicit materials are readily available, sold in prison commissaries, and shown on prison closed-circuit television. There were three other systems which had a list of 2251permissable publications: Florida, Illinois and New York. New York's list is the most comprehensive and approves large 2250 Affidavit of Grant H. Kendrick, Michigan State Prisoner 1131851 (Sept. 9, 1984). 2251 [qew York also has a list of disapproved publications. 1496 quantities of sexually explicit materials. The United States Bureau of Prisons and Kentucky expressly forbid the compilation of a restricted publication list. The only states which stated that sexually explicit materials are provided in prison libraries were Alabama and New York. Six other states specifically said such publications were not provided in the libraries. The rest of the states surveyed did not respond to that question. Finally six of the states responded that no sexually explicit publications were sold in prison commissaries. The remaining states did not comment. 1497