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
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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,
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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.
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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