The Importance of Making Complaints
By Robert Peters
President of Morality in Media

"The problem of pornography is not the same as it was in 1970 when I served on the Presidential Commission on Pornography. At that time, pornography was downtown. Now it's downstairs. Now we have dial-a-porn, cable porn, video porn, mail porn, and computer porn. Now porn is in the home, reaching families and children."

So said Father Morton A. Hill, S.J. (1917-1985), Founder of Morality in Media, in a 1984 television documentary, "The People vs. Pornography."

Given the history of lax Federal and State obscenity law enforcement, perhaps it's better to say that porn is both downtown and downstairs.

Nevertheless, MIM knows from experience that concerned citizens, working together, can make a difference in the fight against porn. We also know that Americans want the Federal and State laws against hard-core porn vigorously enforced.

Our purpose here is to provide a brief overview of what constitutionally can be done to combat illegal hardcore pornography (obscenity) and "sexually oriented businesses" in your community and to make you aware of resources available from Morality in Media.

How to Win Against Porn in Your Community
Here's a sample chapter from MIM's handbook How to Win the War in Your Community. If you'd like to buy a copy of our handbook, go to our Ordering Publications page for more information.

Sale of obscene material in your community will stop if Federal and State obscenity laws are enforced vigorously.

There is strength in numbers so it is important to get organized. You may want to form a chapter of Morality in Media (contact us for information on forming a chapter). Or, you may want to form an entirely new organization with a name of your own choosing. Or, you may want to form a committee to work within an existing organization—for example, a church or community group you belong to.

The purpose of your organization or committee is to:

• Educate yourselves and others in your community
• Identify the obscenity and other pornography problems in your community
• Devise a strategy to combat these problems
• Motivate law enforcement agencies (police, FBI, postal inspectors) and local prosecutors to investigate and prosecute obscenity violations
• Propose/support obscenity and related laws, if needed

To fight illegal hardcore pornography, concerned citizens must make obscenity complaints to Federal, State, and local prosecutors.

And to make those complaints, Morality in Media has the tools you need—our Federal and State Obscenity Complaint Forms. You can download them here. Use these as your master copies, and photocopy extras as you need them.

FEDERAL OBSCENITY COMPLAINT FORM

• Instructions for Completing the Federal Obscenity Complaint Form
• Federal Obscenity Complaint Form—HTML format
• Federal Obscenity Complaint Form—MS Word format
• Federal Obscenity Complaint Form—Adobe Acrobat PDF format.

STATE OBSCENITY COMPLAINT FORM

• Instructions for Using the State Complaint Form
• State Obscenity Complaint Form—MS Word format
• State Obscenity Complaint Form—Adobe Acrobat PDF format

If you need the Adobe Acrobat Reader to download the PDF versions of the Complaint Forms, you can download it for free from this link.)

Sample letter to your local prosecutor to urge enforcement of state obscenity laws: PDF    DOC
If you live in one of the 40 states with a workable statewide obscenity law, your local prosecutor is responsible for protecting your community from the scourge of hard-core porn. Use this letter to let your prosecutor know that you want community standards upheld. Note: This letter is in Adobe PDF format; you'll need the Acrobat PDF reader from Adobe on your hard drive. You can download it for free from the Adobe Web site if you need it.

Federal prosecutors -- their title is United States Attorneys -- have the authority and the resources to prosecute all Federal crimes, including the obscenity laws. Obscenity is also a "predicate crime" under the Federal Racketeer Influenced and Corrupt Organizations (RICO) law, so the U.S. Attorneys have this powerful weapon at hand (to see who the U.S. Attorney is for your area, go to the link on our Obscenity Enforcement page).

State obscenity laws are enforced by the state prosecutor in your county (called "district attorney," "state's attorney," "county prosecutor," or similar such title). Your local telephone directory should have the phone number of your local prosecutor's office.

Forty states have effective statewide criminal laws against the sale or rental of obscene material, including obscene books, magazines, films, and videos. Additional states allow local obscenity laws. To find your state laws, go to the NOLC's Federal and State Obscenity Statutes page. Some states also include obscenity as a predicate crime under their versions of the RICO law.

Prosecutors will be vigorous in enforcing obscenity laws only if the community urges these officials to do so.

In general, what you will need to succeed are:

• Knowledge of the problems and the law
• Ability to work with others
• Determination to act
• Persistence

In its 1973 Miller v. California decision, the U.S. Supreme Court set forth a three-pronged test for determining whether a "work" (that is, material or performance) is obscene and, therefore, unprotected by the First Amendment. To be obscene, a judge or a jury must determine:

1. That the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; AND
2. That the work depicts or describes in a patently offensive way, as measured by contemporary community standards, sexual conduct specifically defined by the applicable law; AND
3. That a reasonable person would find that the work, taken as a whole, lacks serious literary, artistic, political and scientific value.

Notice that the first two prongs of the Miller test make "contemporary community standards" the measure against which the trier of fact determines what is obscene. When citizens don't make complaints about hard-core pornography in their community, their silence is viewed by both porn distributors and public officials as community acceptance. That is why it is vital for citizens to get organized and make their views known.

If you receive an unsolicited "sexually oriented ad," take the material, including the envelope, to the Post Office. Ask for an investigation of possible violations of the Federal Obscene Mail Law (18 U.S.C. 1461). Don't accept any nonsense about such materials being "protected by the First Amendment." Obscenity is not protected by the First Amendment, and there is no way for Postal Inspectors to determine if the advertised matter is obscene until they order and view it. You can also take copies of the offending matter to your area's United States Attorney (for the names and addresses of all 93 US Attorneys, go to our Obscenity Enforcement page).

You should also send a brief letter of complaint to the following address: Child Exploitation and Obscenity Section; U.S. Justice Dept., Criminal Division; 950 Pennsylvania Avenue NW; Washington, DC 20530. Make sure you include the name and address of the mailer and the address of the Post Office where you made the complaint.

If you are concerned about your children being exposed to sexually oriented advertising, or if you are offended by receiving such advertising in the mail, the U.S. Postal Service has a form (Form 1500) which allows you to protect yourself and your children.

Download USPS Form 1500 (PDF format) from this link

Form 1500 has two parts. If you receive an advertisement in the mail that you believe to be "erotically arousing or sexually provocative," Form 1500 allows you to obtain a Prohibitory Order against the mailer under the Pandering Advertisments statute (39 USC 3008). Second, you can add your name, and the names of your minor children, to the Postal Service's list of persons who do not want to receive sexually oriented advertising. This is in accordance with the Sexually Oriented Advertisements statute (39 USC 3010). "Sexually oriented advertisements" are defined to mean "any advertisement that depicts, in actual or simulated form, or explicitly describes, in a predominantly sexual context, human genitalia, any act of natural or unnatural sexual intercourse, any act of sadism or masochism, or any other erotic subject directly related to the foregoing." "Pandering advertisements" are defined as "advertisements which offers for sale matter which the addressee in his or her sole discretion believes to be erotically arousing or sexually provocative."

The law goes on to say that "Material otherwise within the definition of this subsection shall be deemed to not constitute a 'sexually oriented advertisement' if it constitutes only a small and insignificant part of the whole of a single catalogue, book, periodical, or other work the remainder of which is not primarily devoted to sexual matters."

39 U.S.C. 3010 also requires that the legend "Sexually Oriented Ad" appear either on the exterior envelope of a mailing piece or a sealed interior envelope which contains the sexual material. If no such legend appears, you should point this out to your local Post Office, and ask them to begin proceedings against the mailer.

1. State obscenity laws

Forty states have workable statewide laws prohibiting distribution of obscene material. You should be able to get a copy of your State's obscenity law from your local police or prosecutor, a local legislator, a local private attorney, or by contacting MIM's National Obscenity Law Center. You can also link to all the Federal and State obscenity laws from NOLC's website.

Alaska, Maine, New Mexico, Montana, South Dakota, Vermont and West Virginia do not have workable state obscenity laws. While some of these states allow local control of obscenity, new state obscenity laws are needed. State Supreme Courts in Colorado, Hawaii and Oregon have invalidated or greatly weakened their state obscenity laws. Amendments to the State Constitutions may be needed.

Complaints about possible violations of state obscenity laws should be made to your local police department or local state prosecutor (called district attorney, state's attorney, etc.).

2. Federal obscenity laws

Federal laws prohibit:

• Importation of obscene material (18 U.S.C. 1462)
• Use of a common carrier to transport obscene material in interstate commerce (18 U.S.C. 1462)
• Interstate transportation of obscene material (18 U.S.C. 1465)
• Selling obscene material that has already been shipped in interstate commerce (18 U.S.C. 1466)

Complaints about possible violations of these laws should be made to the FBI or the U.S. Attorney responsible for enforcing Federal criminal laws in your area (for the names and addresses of all 93 US Attorneys, go to our Obscenity Enforcement page).

Federal laws prohibit the use of computers to import obscene matter (18 U.S.C. 1462) and to transport obscene matter in interstate commerce (18 U.S.C. 1465). Complaints about possible violations of these laws should be made to the FBI or the U.S. Attorney responsible for enforcing Federal criminal laws in your area (for the names and addresses of all 93 US Attorneys, go to our Obscenity Enforcement page).

A Federal Court of Appeals (Thomas v. U.S., 1996) upheld a conviction of a California couple for transporting by means of computer obscene matter from California to a government agent in Tennessee.

Federal law [47 U.S.C. 223] prohibits by means of telephone the making within the United States of any obscene communication for commercial purposes. Complaints about possible violations should be made to the FBI or U.S. Attorney responsible for enforcing Federal criminal laws in your area (for the names and addresses of all 93 US Attorneys, go to our Obscenity Enforcement page). In 1989, the U.S. Supreme Court (Sable Communications v. FCC, 1989) upheld this law.

Federal law [47 U.S.C. 223] also requires commercial dial-a-porn services to restrict minors' (under 18) access to indecent communications. A Federal Court of Appeals (Dial Information Services Corp. v. Thornburgh, 1991) upheld this law and the FCC regulations which require use of credit cards, access codes or scrambling.

Federal laws prohibit distribution of obscene programming 24-hours a day on broadcast (18 U.S.C 1464) cable and satellite (18 U.S.C. 1468) TV. Complaints about possible violations of these laws should be made to the Federal Communications Commission, the FBI or U.S. Attorney responsible for enforcing Federal criminal laws in your area (for the names and addresses of all 93 US Attorneys, go to our Obscenity Enforcement page). Morality in Media believes many cable and satellite systems are distributing obscene programming.

1. Obscenity laws

The best way to combat "sexually oriented businesses" that sell or rent hardcore pornographic magazines, videos, paperbacks, etc. is to vigorously enforce Federal and State obscenity laws. "Adult use" zoning should never be used as an excuse for not enforcing obscenity laws.

2. 'Adult use' zoning

The purpose of "adult use" zoning is to reduce deleterious secondary effects created by the presence of so-called "sexually oriented businesses" (e.g., "adult bookstores, "adult theatres," strip joints, massage parlors, etc.).

There are three basic approaches to "adult use" zoning:

• Cluster: require "sexually oriented businesses" to locate in one area (e.g., Boston's "Combat Zone").
• Scatter: prohibit "sexually oriented businesses" from locating within a specified distance from each other and from residential districts, schools, houses of worship and parks.
• Mixed: prohibit "sexually oriented businesses" from locating within a specified distance from each other and from residential districts, schools, houses of worship and parks AND require them to locate only in specified industrial and/or commercial districts.

Regardless of the approach used, the municipality must refrain from effectively denying sexually oriented businesses "a reasonable opportunity to open and operate." How much acreage and how many sites depend on the size and population of the municipality. In Renton v. Playtime Theatres (1986), the U.S. Supreme Court said that the First Amendment does not require that sexually oriented businesses "will be able to obtain sites at bargain prices," but generally speaking, a city or town cannot zone "sexually oriented businesses" out of its borders entirely.

Public officials should consider enacting an "adult use" zoning law before the first "sexually oriented business" opens within its borders. This is especially true in states which permit businesses existing prior to the effective date of the zoning ordinance to remain.

The municipality should clearly articulate in public hearings and in a "Findings" section of the ordinance the government interests to be furthered and provide evidence of deleterious effects. Materials are available from Morality in Media for the cost of copying and mailing. Contact the National Obscenity Law Center at 212-870-3232 or go to NOLC's Legal Materials page.

Licensing of "sexually oriented businesses" should be attached to "adult use" zoning laws only if the licensing scheme includes the procedural safeguards specified by the U.S. Supreme Court in FW/PBS v. City of Dallas, 1990. An article, "Prompt Judicial Review of Denial of Permits or Licenses in Zoning," by Paul J. McGeady, is available from the National Obscenity Law Center (212-870-3232).

3. Open Booth Laws

"Adult" bookstores frequently have peep show booths designed to exhibit (for a price) films or live performances. Viewers are stimulated to masturbate or to have sex with another person in the same booth or through a "glory hole" with the patron of an adjoining booth. This behavior creates unsanitary conditions, spreads communicable diseases and often violates lewd conduct laws.

Open Booth Laws require the doors to be removed from peep show booths so that the inside of the booth can be viewed from a public area. This discourages sexual behavior inside the booths. Numerous Federal and State courts have upheld "open booth" laws. Morality in Media assisted with the passage of state Open Booth laws in Delaware, Pennsylvania and New Jersey.

The State or municipality should clearly articulate in public hearings prior to enactment and in a "Findings" section of the law/ordinance the government interests to be furthered and provide evidence of deleterious effects. Case law, police affidavits, and news reports showing that sexual conduct occurs in peep show booths are available from Morality in Media for the cost of copying and mailing. Contact the National Obscenity Law Center at 212-870-3232 or go to NOLC's Legal Materials page.

4. Hours of operation

In 1991, Delaware passed a state Open Booth Law that also restricts the hours and days of "adult" bookstore operations. The proprietor of a prominent "adult" bookstore stated that because of these provisions, his business had suffered "a decrease in patronage as measured by its booth and other revenue" of 66% to 75%. He further complained, "A number of patrons are unwilling to utilize the booths ... when they are subject to observation by others."

5. Nuisance

In 1986, the U.S. Supreme Court (Arcara v. Cloud Books) held that the First Amendment does not bar enforcement of a New York State public health "nuisance" law authorizing closure of a premises found to be used as a place of prostitution and lewdness, just because the premises is used as an "adult bookstore." "Nuisance" laws have also been successfully enforced against strip joints, where "dancers" violate prostitution or lewd conduct laws.

1. Bars

The U.S. Supreme Court has held (California v. LaRue, 1972; New York State Liquor Authority v. Bellanca, 1981; 44 Liquormart, Inc. v. Rhode Island, 1996) that a state can ban topless and bottomless "dancing" (i.e., stripping) in bars where alcoholic beverages are sold for on-premises consumption. Such authority may be delegated by the state to its municipalities.

Unfortunately, not all States have utilized their authority to ban topless and bottomless dancing in bars. You should check with the state liquor licensing authority in your state to determine if a statute or regulation bans topless or bottomless "dancing" (i.e., stripping) in licensed liquor establishments. If not, work to have such a law or regulation adopted.

State courts in Massachusetts, New York, Alaska, and Oregon invalidated laws prohibiting topless "dancing" (i.e., stripping) in bars on grounds that the laws violated the State Constitutions. An amendment to the State Constitutions may be needed.

2. Bottle Clubs

So-called "bottle clubs" do not sell alcoholic beverages, but allow customers to "B.Y.O.B." Some states regulate these—New York, for example, requires a license and requires that they be at least 200 feet from a school, church, or synagogue. Federal and State courts have held that a state can ban topless or bottomless "dancing" (i.e., stripping) in bottle clubs.

3. Juice Bars

"Juice bars" don't serve alcoholic beverages or allow on-premises consumption of alcoholic beverages but do provide totally nude "dancing" (i.e., stripping). Here are some suggestions for regulating this type of establishment:

• If customers do consume their own alcoholic beverages on the premises, the state's liquor laws may apply. See Bottle Clubs.
• State obscenity laws often apply to live performances. If so, "juice bars" should be monitored by the police to determine if "dancers" are engaging in hardcore sex acts specified in the State obscenity law.
• If "dancers" violate State prostitution or lewd conduct laws, State nuisance laws may apply, which allow closure of the premises for up to one year.
• The U.S. Supreme Court (Barnes v. Glen Theatre, 1991) upheld a public indecency law requiring "dancers" in juice bars to wear "pasties" and "G-strings."
• "Juice bars" can be zoned as "adult uses." See 'Adult use' zoning.

We hope that this knowledge of the legal tools available to fight obscenity will strengthen your resolve to combat this evil. If you need more detailed help, please contact Morality in Media or its National Obscenity Law Center.

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