As previously pointed out, simulated sexual intercourse and simulated sodomy are not obscene under S. 1722. It is no answer to say that the prohibition against indecency may be reenacted on Page 320 of the Committee Print as Section 203 (J) of Title 18 Appendix. The language on that page is "mumbo jumbo". It purports to reenact 18 U.S.C. 1464 which includes obscene, indecent and profane, but obscene broadcasting has already been covered by proposed Section 1842 of S 1722. This makes the bill of doubtful validity. It is axiomatic in Criminal Law that "Vagueness" makes a criminal statute unconstitutional. This is especially true in the First Amendment area. What can be more vague than to have two different treatments and two different penalties for obscene broadcasting. Under Section 1842, the penalty is 2 years. Under Title 18 Appendix Section 203 (J) the penalty is One year (Page 161 of the Bill). If the court does not throw out the law (which it probably will) it will apply the one year statute to Obscene Broadcasting which invades the home and the two year statute to the sale of a dirty book to a single person in a federal enclave. Again if the object is to codify existing law why is the penalty reduced to one year for an Indecent broadcast when the existing penalty is Two years. As a minimum the penalty for violating 203 (J) should be increased to two years. S. 1722 and H. R. 6233 are deliberate attempts to so weaken existing Federal Obscenity laws that they become entirely ineffective. We would be better with no bill than this one. The Bill should be defeated or in the alternative the present law should be retained in its present form with the word "obscene" defined as indicated in United States v. Thomas which is simply the consensus of all the federal decisions construing our existing law. If the desire is to "codify" existing law on obscenity then existing law should be retained as herein defined by the federal courts and by the United States Deparment of Justice. UNITED STATES ATTORNEYS' MANUAL 9-75.200 JUDICIAL DEFINITION OF OBSCENITY In Miller v. California, 413 U.S. 15 (1973), the Court stated at p. 24: The basic guidelines for the trier of fact At page 25 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 -(b) patently offensive representations or In United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123 (1973), the Court stated in note 7 at page 130 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 on page 25 in the Miller case. Therefore, a proper statement of the test for abscenity in Federal cases would be follows: (a) whether the average person, applying (b) whether the work depicts or describes, as JANUARY 17, 1977 UNITED STATES ATTORNEYS' MANUAL or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, or representations or descriptions masturbation, excretory functions, or lewd exhibition of the genitals, and of (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. JANUARY 17, 1977 COMMITTEE PRINT OF FEBRUARY 13, 1980 THERE IS A HOUSE "COMMITTEE PRINT" BEING CIRCULATED DATED FEBRUARY 13, 1980 WHICH SAYS THAT IT "IS NOT A FINAL PRODUCT". WHILE AN ATTEMPT IS MADE IN THIS PRINT TO MEET SOME OF THE OBJECTIONS TO THE PENDING BILL H.R. 6233, THE ATTEMPT IS UNSUCCESSFUL. THESE ARE THE SERIOUS DEFECTS IN THE COMMITTEE PRINT: 1. ON (NEW) (INSERTED) PAGE 144 LINES 20 AND 21, 2. LINES 24 AND 25 -THIS IS INCORRECT BECAUSE 3. LINES 33 AND 34 -WHILE IT IS TRUE THAT 4. BROADCASTING-SEE MY COMMENTS (UNDER ITEM |