The campaign against S.983, the Pornography Victims Compensation Act, is beginning to show results. On Monday, the day before the bill was scheduled for a hearing, Sen. Mitch McConnell, the sponsor, introduced S.1521, a substitute for S.983. While S. 1521 still authorizes civil suits against publishers, distributors and others by victims of sexual crimes, it is significantly narrower than S.983: it applies only to obscene material and child pornography. Thus, no one could be forced to pay damages for producing or selling a constitutionally-protected work. McConnell has also eliminated the attacker to testify about "what made me do it."
While positive, the last minute changes in the bill left us with little time to prepare our response. Media Coalition was fielding 3 of the 4 witnesses who would speak in opposition to the bill at the hearing on July 23rd: Joyce Meskis, president of the American Booksellers Assn; Harry Tobias, president of the Council for Periodical Distributors Assn; and Judith Krug, the executive director of the American Library Association's Freedom to Read Foundation. The 4th witness Richard Abt, a vice president of West Coast Video, appeared on behalf of the Video Software Dealers Assn.
At a breakfast meeting in Washington before the hearing, the Media Coalition witnesses agreed that while they would acknowledge the improvements in the bill, they would oppose it on the grounds that the threat of civil suits by crime victims remains chilling even when the target of their complaints is legally obscene. At the same, they recognized that their arguments were unlikely to be as sympathetically received as before.
We were pleasantly surprised when Sen. Joseph Biden, the chairman of the Senate Judiciary Committee, discounting the changes in the bill, persistently questioned the contention that sexually explicit material caused violence. Making frequent reference to a letter that he had received from social scientists Edward Donnerstein and Daniel Linz, Biden insisted several times that the scientific evidence has shown that only material that is violent changes attitudes toward violence.
Biden first challenged the unscientific basis of the legislation in his questioning of Sen. McConnell. McConnell has repeated the Meese Commission's unsupported assertion that sexually explicit material that is "degrading" contributes to rape. McConnell was clearly flustered by Biden's use of the letter from Donnerstein and Linz. He had to admit that "I am not an expert on pornography." He tried to duck the question by point out that the bill only targeted only material that is already illegal to produce or sell. But, Biden continued to raise questions. "There are very few circumstances where we hold a third party liable...I think it is very important we have an underlying rationale," Biden said.
Diane Zimmerman, a law professor at New York University who had been invited to testify by the committee, argued that the bill is plagued by legal difficulties. "I think it is going to be exceedingly difficult to administer," she said. First, the concept of third-party liability depends on the "foreseeability" of the harmful effects of distributing a work. But how can a publisher or bookseller be held liable for foreseeing harm when "the scientific literature in this area is in great dispute," Zimmerman asked. The second problem is, how will the material in question be determined to be obscene? Will this be decided during the trial of the civil suit? If so, the jury is likely to be swayed in its views of the material by the sympathy it feels for the victim, she said.
Finally, there is the problem of determining what community standards are relevant for judging obscenity, Zimmerman said. Can a publisher or bookseller in Oregon where there is no obscenity law be held liable for "causing" a sexual assault in Florida? If so, the law would tend to create a national definition of obscenity that is broader in its application than the definition in most states: to avoid a civil suit in a community that is more conservative than the rest of the country, the publisher or bookseller will refrain from distributing material that they currently sell. Obviously, this "federalizing" of the definition of obscenity will have a "serious chilling effect" on the sale of works that are not obscene according to the standards of most Americans, Zimmerman said.
Joyce Meskis, Judy Krug, Harry Tobias, and Richard Abt elaborated on the threat outlined by Zimmerman. By the time they had finished, more than 2 hours had been devoted to criticism of the bill. This left little time for the panel testifying on behalf of the legislation: a lawyer from Morality in Media, an assistant U.S. Attorney from Indianapolis, the D.A. of Oklahoma City, Page Mellish of the Feminists Against Pornography and an anonymous victim.
The Republicans on the committee were clearly frustrated by the progress of the hearings. Senators Grassley and Thurmond complained that Biden and the opponents of the bill were misrepresenting it. Grassley insisted that it was entirely proper to produce a "chilling effect" on legally obscene material. Thurmond wanted it put on the record the fact that the witnesses were opposing a bill aimed at obscenity and child pornography, presumedly because to demonstrate that they favor obscenity and child pornography.
Although McConnell indicated that he might be willing to redraft his bill so that it applied only to violent sexual material, it is clear that he and the other sponsors are intent on pushing the legislation. A member of Grassley's staff has said that the Republicans will ask the Judiciary Committee to "mark-up" the bill when Congress returns from its August recess. Whether there is a mark-up session or not, there is always a danger that the bill will be attached as an amendment to another bill sometime before Congress adjourns in the fall.
There is an important postscript to the hearing. While Biden raised many excellent points in defense of material with sexual content, he balanced them with suggestions that he is willing to see increased censorship of material that portrays violence. He said he believes that there is a causal relationship between the amount of violence in the media and the level of violence in our society. Biden said that he had recently seen "TERMINATOR 2" and had been appalled by the bloodthirsty reaction of adolescents in the audience. "They shouldn't have been able to see that movie," he recalls telling himself. Biden said he had never thought that way before. "It's beginning to raise in my mind things I never thought before," he said. If we needed another reminder of the perilous state of the First Amendment, Biden provided it.
EDITOR'S NOTE: Chris Finan is the Executive Director of the New York based: MEDIA COALITION, INC.
CAUSE FOR CONCERN:
United States Senate
Committee On The Judiciary
Washington, DC 20510-6275
August 9, 1991
Mr. Randy Payton
P.O. Box 436
New Philadelphia,OH 44663
Dear Mr. Payton:
Thank you for your recent letter about S.983, the Pornography Victims Compensation Act of 1991. As you may know, Senators McConnell and Grassley have now introduced a revised version of the bill which would limit application to obscene materials and child pornography.
I believe that the bill addresses the important issue of compensation for victims of crime. However, I appreciate that many citizens fear that, even as revised, the bill might subject them to liability for selling or displaying controversial, but constitutionally-protected, materials.
I believe we can compensate victims of crime and safeguard first amendment rights at the same time. I will keep your concerns in mind as we consider the revised bill. Again, thank you for sharing your views with me.