ters which await the attention of the Congress while the Senate is preoccupied with presidential appointments.

We do not consider the time wasted that is spent by the Senate on such deliberation. Liberty Lobby feels that it is the duty of the Senate to give time and attention to presidential appointments; particularly when the appointment is the highest appointment that he President can make and the highest appointment in which the Senate

can concur.

But we must make this qualification. If, given the highest appointed position of all to confirm; and given the worst possible of all candidates to consider for confirmation; if in that case the Senate cannot bring itself to reject the candidate *** then the Senate has indeed abdicated.

We await your decision. Thank you.

The CHAIRMAN. Any questions?
Senator ERVIN. No questions.

Senator HART. No questions.

The CHAIRMAN. Any questions?

Senator THURMOND. Mr. Chairman, I think the statement is complete. I wish to thank the witness for appearing here. I have no questions.

The CHAIRMAN. Thank you, sir.

Mr. HICKS. Thank you, sir.

The CHAIRMAN. Mr. James J. Clancy.

STATEMENT OF JAMES J. CLANCY, ATTORNEY FOR THE EXECUTIVE BOARD OF THE NATIONAL ORGANIZATION CITIZENS FOR DECENT LITERATURE, INC.; ACCOMPANIED BY CHARLES H. KEATING, ATTORNEY

Mr. CLANCY. Mr. Chairman, honorable Senators, my name is James J. Clancy. I am an attorney. I appear before this committee at the direction of the executive board of the National Organization Citizens for Decent Literature, Inc.-short title, CDL-to oppose the confirmation of Associate Justice Abe Fortas as Chief Justice of the U.S. Supreme Court. These remarks are also made on behalf of three of CDL's legal counsels: Attorney Charles H. Keating, Jr., of Cincinnati, Ohio, the founder of CDL, Attorney Ray T. Dreher of St. Louis, Mo., and myself, an attorney from Los Angeles, Calif.

Citizens for Decent Literature, Inc., an Ohio corporation, was founded over 10 years ago by a group of concerned businessmen and family heads, under the leadership of Attorney Charles H. Keating, Jr., of Cincinnati, Ohio. These individuals took a look at the condition of the materials appearing on the neighborhood newsstands and became alarmed at what they saw creeping onto the American scene. They formed a community organization with two objectives in mind: (1) To alert the community to the nature of the obscenity problem, and

(2) To press for enforcement of the obscentity laws-laws which the history of our Government has proven essential to the development of good family living. This movement spread

throughout the United States and before long, the individual local community organizations joined in this national organization with headquarters in Cincinnati, Ohio.

Just recently the Congress of the United States also became alarmed. In Public Law 90-100, signed into law this year, that body, in establishing a Commission on Obscenity and Pornography, declared in its findings of fact that the obscenity traffic was "a matter of national concern." The event which motivated Congress to act was a series of obscenity decisions handed down in May and June of 1967 in which the U.S. Supreme Court reversed 23 of 26 state and Federal obscenity determinations. The community standards of 13 States were upset. Eight findings of fact by juries were reversed. Justice Fortas participated in every one of these decisions, and in each instance voted to reverse the findings of the juries and courts below. Those cases were decided during the October 1966 term. The same pattern was followed by Justice Fortas in his handling of the 26 additional cases which were ruled upon by the Court, during the recent October 1967 term, which ended in June of this year. A summary of these cases, including the subject matter involved and the legal citations thereto, is offered for filing with this statement as exhibit C.

The CHAIRMAN. Do you want it a part of the record, or filed as an exhibit?

Mr. CLANCY. As a part of the record, sir-it is attached; yes, sir. The CHAIRMAN. All right.

(The document referred to for inclusion in the record was marked "Exhibit 51" and appears in the appendix.)

Mr. CLANCY. We find good reason in these decisions for responding to Justice Fortas' invitation for "open criticism" (see Evening Star, July 16, 1968, at p. 4-5).

In his testimony, Justice Fortas has agreed that "the public is entitled to know" his judicial philosophy, but has declined to comment on his opinions under the constitutional privilege, upon the grounds that his beliefs are "spread on the record" of three terms of the Court (Washington Post, Friday, July 19, 1968, at p. A6). While this may be so in other areas of the law, we are of the opinion that his statement would require an amendment, if the question were pressed as to its relevance insofar as obscenity cases are concerned. Twenty of the 23 cases reversed during the 1966 October term, including the Shackman case referred to hereinafter, were without an opinion to discuss the facts or conduct of the case and the reasoning involved. In the other three cases, only one brief majority opinion was filed and that opinion was not written by Justice Fortas. The cases decided by the Court during the recent 1967 October term were also without an opinion to discuss the facts or conduct of the case and the reasoning involved. In actuality, the materials and facts involved in these cases are very effectively "buried" in the records of the Court below.

While Justice Fortas voted with the majority to affirm the convictions of Ginzburg and Mishkin during the 1965 October term, his vote in those cases is completely contradicted by the position taken by him in the following two terms of the Court. His vote in Ginzburg can be understood when one considers the great weight that he accords to the right of privacy (see his dissenting vote in Time v. Hill). The evi

dence upon which Ginzburg's indictments were based was advertising materials which Ginzburg had addressed to a boys' school, and members of clerical and religious organizations. However, this facet of the case was not mentioned in the majority opinion in which he joined, nor was the majority opinion based upon that legal principle. His vote in the Mishkin case is completely irreconcilable with his voting in the 1966 and 1967 term cases, particularly Friedman v. N.Y. dealing with almost identical material, and Lee Arts Theatre v. Virginia, in which the Court took an extreme position regarding the seizure of obscene materials.

In this regard, there was a sizable search and seizure problem in the Mishkin case which Justice Fortas chose to disregard. The police had seized several hundred thousand copies without a search warrant. He glossed over it saying that the record was not perfected, and therefore the Court would not comment on it. In the Lee Arts Theatre v. Virginia case, a police officer had reviewed two films, "Body of a Female," and another sex picture, had gone to a magistrate, named the films, alleged that in his opinion they were obscene, and asked for a search warrant. The search warrant was issued; the Court in the Lee Arts Theatre v. Virginia said this was not a proper basis for a seizure of obscene materials.

Citizens for Decent Literature, Inc. has recently completed a 35millimeter slide film documentary of the October 1966 term decisions. A copy of the first draft of the script for this documentary has been submitted for filing with this committee as exhibit A to our letter of July 16 requesting permission to appear before this committee, and is at this time offered for filing with this statement as exhibit A. The documentary traces the history of the 26 cases from their origin in the trial court, up to the final decision of the U.S. Supreme Court and shows pictorially the materials involved. A short 30-minute slide adaption of the same is available for your viewing. Portions of this slide presentation have already been seen by Senators McClellan, Long, and Fong, the members of the subcommittee appointed for this purpose. The disturbing feature of the decisions handed down in May and June 1967 which prompted the formulation of this documentary was the radical departure of the present court from its historic position, which has always supported the people's position in the enforcement of the Nation's obscenity laws. The modern court has been responsible for a developing change in the past 10 years in the obscenity area which parallels closely the recent changes in the criminal law areas, so ably documented by Senator Ervin in his presentation to this committee. Never before, however, have the members of the court acted in a manner which so completely unmasks their own individual performance. This they did in the obscenity decisions handed down in May and June of 1967.

The common issue in all of these recent court storm centers is whether the judgments of the court are grounded upon constitutional principle or upon the personal judgments of the individual members. If Senator Ervin has not convinced you that the recent developments in criminal law procedures are based upon personal judgments, as he has urged, it is only because semantics plays such a large part in masking the individual philosophy of the judges concerned. The average per

son is aware that the results reached appear to be clearly wrong, but is confused when he is told by judges in the majority opinion that the Court is following "constitutional principles." The same difficulty does not exist when one analyzes the Court's recent action in obscenity cases, for there is a common reference in obscenity matters-a norm which all of the legalisms known to our system of Government cannot confound or confuse. That reference is the contemporary community standards. No amount of legal semantics emanating from the most learned of counsel can mislead the average citizen's understanding of what is filth-what is beyond the contemporary community standards-what is destructive of public morals. The many findings in the lower courts in the cases herein considered (see exhibit C) bear this out. None of the materials involved have any relevancy whatsoever to "speech," or constitutionally protected values. In this connection, I would like to suggest to Senators Ervin and Thurmond that these obscenity cases are the common denominators which explain and lay open for inspection to the nonlawyer, just what is happening in the U.S. Supreme Court in other areas of the laws.

If one is to make use of this common reference in an analysis of the obscenity decisions it is necessary that the Court's opinions be considered in the light of the subject matter involved. Without an understanding of the material that the Court is passing on, the Court's judgments lose much of their significance. We have therefore in the documentary presented visually the actual materials involved in each of the cases discussed.

The type of materials brought before the High Court in the 1966 October term was uniform. There were 20 sex paperback books. Their titles were: "Sex Life of a Cop," "Lust School," "Lust Web," "Sin Servant," "Lust Pool," "Shame Agent," "Lust Job," "Sin Whisper," "Orgy House," "Sin Hooked," "Bayoo Sinner," "Lust Hungry," "Shame Shop," "Flesh Pots," "Sinners Seance," "Passion Priestess," "Penthouse Pagans," "Sin Warden" and "Flesh Avenger"; 12 bondage books; a series of photographs of nude females in provocative poses with focus on the pubic area and suggested invitations to sexual relations; eight motion picture films of the striptease type; 10 girlie magazines; one nudist magazine, and two homemade so-called "underground" films. Photographs of some of the actual exhibits are offered for filing with this statement as exhibit D.

An overall impression of Justice Fortas' philosophy can be gleaned from the fact that he voted to reverse the jury and State court obscenity determinations in each of the cases he acted upon, during the 1966 and 1967 terms. A more precise understanding of his philosophy in the obscenity area can be gained from a consideration of his vote in Shackman v. California decided in June of 1967. In that case, three striptease films entitled "O-7," "O-12," and "D-15" were ruled hard-core pornography by Federal District Judge Hauk, a Los Angeles jury, and the California appellate system. Those determinations were reversed in the U.S. Supreme Court by a 5-4 decision, with Justice Fortas casting the deciding vote. This judgment is representative of his actions in the other cases.

A copy of the 14-minute striptease film entitled "O-7," which Justice Fortas voted not obscene, has been submitted for filing with

this committee as exhibit B to our letter of July 16 and is at this time offered for filing with this statement as exhibit B. I personally viewed the motion film "O-7" at the time that it was an exhibit in the U.S. Supreme Court case, and can attest that the copy filed with this committee is an exact copy of the film considered by Justice Fortas and the U.S. Supreme Court in the Shackman case. I would like to emphasize that the one and only issue passed upon by the Court in that case was whether or not the films "O-7," "O-12," and "D-15" were constitutionally protected, and that the 5-4 Shackman decision held that they were, with Justice Fortas casting the deciding vote. The nature of the material appearing in the motion picture film entitled "O-7" was described by Federal District Judge Hauk in 258 F. Supp. 983, wherein he ruled the three films to be hard-core pornography.

In this particular decision, he refused to call a three-judge constitutional court, and instead held that the material was not constitutionally protected, and that it definitely should stand trial. Here are his quotes as rendered in the opinion:

The film "O-7” is virtually the same as Exhibit 1. The model wears a garter belt and sheer transparent panties through which the pubic hair and external parts of the genitalia are clearly visible. At one time the model pulls her panties down so that the pubic hair is exposed to view . . . the focus of the camera is emphasized on the pubic and rectal region, and the model continuously uses her tongue and mouth to simulate a desire for, or enjoyment of, acts of a sexual nature. The dominant theme of the material, taken as a whole, appeals to a prurient interest in sex of the viewer, and is patently offensive in its emphasis on the genital and rectal areas, clearly showing the pubic hair and external parts of the female genital area. The film is entirely without artistic or literary significance and is utterly without redeeming social importance.

The nature of the material appearing in the film "0-12" is described by Federal District Judge Hauk with equal clarity in the same opinion.

...

The film, "0-12" was viewed by the court. The film consists of a female model clothed in a white blouse opened in front, a half-bra which exposes the upper half of the breasts including the nipples and a pair of white capri pants (which are soon discarded) under which the model wears a pair of sheer panties through which the pubic hair and region are clearly visible. The film consists of the model moving and undulating upon a bed, moving her hands, and lips and torso, all clearly indicative of engaging in sexual activity, including simulated intercourse and invitations to engage in intercourse. There is no music, sound, story-line or dancing other than exaggerated body movements. On at least three occasions, the female by lip articulation is observed to state, " you", "me". The dominant theme of the film taken as a whole, obviously is designed to appeal to the purient interest in the sex of the viewer and is patently offensive in that the focus of the camera returns again and again to the genital and rectal areas clearly showing the pubic hair and the outline of the external parts of the female genital area. The film is entirely without artistic or literary significance and is utterly without redeeming social importance.

Because of this decision, such films, and others going substantially beyond, are now appearing in neighborhood movies and, from reports that I have received from various parts of this Nation, in open-air theaters. The smut industry takes its direction from the High Court's decisions, advancing a giant step forward each time that the U.S. Supreme Court hands down a decision adverse to the people's interest. Senator Scott noted this same phenomenon in Report No. 1097 of the Omnibus Crime Control Act of 1967. He said: