Rodes, Robert E., Jr.

English

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Journal of LegislationVolume 1 | Issue 1 Article 61-6-1975An Act to Restrict the Use of Erotic Material forCommercial PurposesRobert E. Rodes Jr.Follow this and additional works at: http://scholarship.law.nd.edu/jlegThis Article is brought to you for free and open access by the Journal of Legislation at NDLScholarship. It has been accepted for inclusion in Journal ofLegislation by an authorized administrator of NDLScholarship. For more information, please contact lawdr@nd.edu.Recommended CitationRodes, Robert E. Jr. (1975) "An Act to Restrict the Use of Erotic Material for Commercial Purposes," Journal of Legislation: Vol. 1: Iss.1, Article 6.Available at: http://scholarship.law.nd.edu/jleg/vol1/iss1/6AN ACT TO RESTRICT THE USE OF EROTIC MATERIALFOR COMMERCIAL PURPOSESRobert E. Rodes, Jr.*Be it enacted, etc.:Section 1. For purposes of this Act:(1) "Private parts" means all or any part customarily keptcovered in public of any of the following: the genitals,the pubic area, the buttocks, and, in the case of anadult female, the breasts.(2) "Sexual act" means any act of masturbation; any act otcopulation, sodomy, bestiality, or other sexual inter-course, natural or unnatural; any caress of any person'sprivate parts; any embrace of a person whose private partsare exposed; or any act of physical violence to a person'sprivate parts, or to m y person whose private parts areexposed.(3) "Erotic material" means:(a) Any show or performance in which any performer en-gages in a sexual act or exposes his or her privateparts to the audience or to another performer;(b) Any picture representing a sexual act, a person en-gaged in a sexual act, or a person whose clothing isbeing or has been removed, opened or disarranged inorder to accomplish, permit, or be subjected to, asexual act. In determining whether a picture fallswithin this clause, the character of the scene de-picted, and any caption or other material accompanying*A.B., Brown Univ.; LL.B., Harvard Univ.; Professor of LawNotre Dame Law School.-92-the picture may be considered.(c) Any photograph of an adult with his or her privateparts exposed to the viewer, or to another person inthe photograph, unless it can be shown that thephotograph was taken in a public place, and that thesubject did not expose his or her private parts forthe purpose of being photographed;(d) Any detailed description of a sexual act;(e) Any obscene word, but only for purposes of the pro-visions of this Act concerning the display oferotic material;(4) "Picture" includes any sculpture or other three-dimensionalrepresentation. "Photograph" and "picture" both includeany motion-picture or video tape. A reproduction of aphotograph, by whatever process, is a "photograph." Aphotograph or photographic reproduction of a picture thatis not a photograph is not a "photograph."(5) "Commercial purpose" includes any purpose of sale, rental,or other disposition of merchandise; of collecting admis-sion charges; of advertising; or of decorating or en-hancing the amenities of premises where goods or servicesare offered to the public.(6) Material is "placed for examination" if it is so placedthat it may be examined (or, in the case of audiblematerial, listened to) without specific personal requestto the person in charge of it or his representative.(7) Premises shall be deemed to be "accessible to minors"if a minor is found there, unless it can be shown thathe gained admission by exhibiting false documentary proofof age to the person in charge of the premises or hisrepresentative, who in good faith relied on the same.-93-(8) Provisions relating to the "display" or erotic materialshall apply in the case of a show, exhibition, or per-formance to showing, exhibiting, or performing it; inthe case of audible material to uttering it; in the caseof a recording to playing it.(9) Erotic material, other than a picture of the genitalsduring or in preparation for a sexual act, may be disre-garded to the extent that such material:(a) Is included in a motion picture or television se-quence of not less than thirty minutes duration,and does not amount to more than twenty seconds ofsuch sequence; or(b) Is contained in a book, magazine, pamphlet, ornewspaper, and does not appear on the cover, or onmore than one-third of the pages, or on more thantwenty pages thereof.Section 2. No one shall for a commercial purpose:(I) Engage in or submit to a sexual act in public or in thepresence of an audience who have paid money or otherconsideration to watch.(2) Display erotic material in such a way as to attract theattention of persons using any public highway or publicpark, or of travellers on any system of public trans-portation, or of persons on private premises unless suchdisplay is authorized by the owner or occupant of suchpremises.(3) Sell, rent, lend, or give erotic material to any minor,or permit any minor to examine or listen to such material.(4) Display erotic material in premises accessible to minors,or place erotic material for examination in such premises.(5) Mingle merchandise constituting erotic material with othermerchandise displayed or placed for examination on the-94-same premises in such a way as to attract the attentionof persons who are on the premises for the purpose ofbuying or examining such other merchandise.(6) Distribute erotic material by mail or otherwise topersons who have not asked or consented to receive It.(7) Sell, lend, give, display, place for examination, ordistribute erotic material which, taken as a whole,(a) Judged by community standards prevailing at thetime and place of the act or transaction in question,is patently offensive in its description or de-piction of private parts or sexual acts, and appealsto a shameful or morbid interest in nudity, sex, orexcretion; and(b) lacks serious literary, artistic, political, orscientific value.Section 3. Whoever knowingly violates a provision of Section 2 ofthis Act, causes or procures another to do so, or permits aviolation on premises under his control, or by a person inhis employ or under his direction shall be guilty of an offense,and, on conviction, may be fined not more than $2000, orimprisoned not more than one year, or both.Section 4. For purposes of applying Section 3, and subjectto theprovisions of Section 5, a person in charge of premises shallhave imputed to him:(1) Knowledge of the character of any material displayed onthe premises;(2) Knowledge of the character of any material placed forexamination on the premises, except such knowledge of thecharacter of a book, magazine, pamphlet or newspaper ascould not have been inferred by a reasonably prudentperson examining the cover;-95-(3) Knowledge that the premises are accessible to minors,unless he has deputed some responsible person to excludeminors from the premises, and has no reason to supposethat that person is not doing so.Section 5. Notwithstanding the provisions of Section 4, if anyperson by whom or by whose authority material is displayed orplaced for examination on the premises of another gives awritten undertaking as to the character of the material sodisplayed or placed, knowledge of any breach of that under-taking shall be imputed to the person who gave the undertaking,and not (in the absence of actual knowledge) to the person incharge of the premises.Section 6. Any person who, with intent to lead another to supposethat material may be displayed, distributed, or placed forexamination without violating this Act, wilfully misrepresents(or, being the author, artist, designer, producer, publisher,or distributor of such material, negligently misrepresents)the character of such material shall be guilty of an offense,and, on conviction, may be fined not more than $2000, orimprisoned not more than one year, or both.Section 7. Notwithstanding the foregoing provisions:(1) A person who keeps original works of art for sale doesnot violate Subsection (5) of Section 2 by displayingsuch works of art together or placing them forexamination together, even though some are and others arenot erotic material.(2) Nothing done in carrying out in the usual way the workof a bona fide museum, library, or school not operatedfor private profit shall be a violation of Section 2.(3) If one or more producers of exhibitors of plays, shows,or motion pictures shall effectuate a plan for restricting-96-attendance at their plays, shows, or exhibitions, whichplan, in the opinion of (appropriate administration agency)is adequate to protect minors against exposure to materialinappropriate for them, and to protect adults againstbeing unwillingly exposed to material c fensive to them, theperformance of a play or show, or the exhibition of amotion picture in accordance with that plan shall not bea violation of Section 2. The (appropriate administrativeagency) may make regulations for the submission of plansfor his approval under this Subsection. Provided, thatnothing in this Subsection shall protect the advertisingof any play, show, or exhibition. Provided further thatthis Subsection shall not protect a violation of Subsection(1) or Subsection (7) of Section 2.Section 8. (Standard severability clause)Section 9. (Repealer)Section 10. This Act shall be known and may be cited as the EroticMaterial Act of 19NOTESSection 1 (3): This is the basic provision defining the class of materialthat is to be restricted.(a) This covers live performances in the nude.(b) and (c) I felt that in the case of mere nudity paintingswere entitled to more scope than photographs, involvingas they do a good deal of our artistic heritage. Theexception in (c) is meant to prevent application to bonafide news and travel pictures. I am troubled by a fewmajor works of art that come within (b) on account of thebroad definition of "sexual act" in Subsection (2). There-97-is a Vermeer that comes to mind, and there is Rodin's"The Kiss." I believe, though, that the restrictions inthe draft will not unduly restrict access to such works.(4) through (8) are intended to delineate the exact scope ofthe restrictions imposed in Section 2.(9) is meant to exclude from the coverage of the Act caseswhere erotic material is not so obtrusive as to offendpersons of ordinary sensibility or so concentrated as toappeal strongly to the prurient interest.Section 2: This contains all the restrictions on the use of eroticmaterial. Note that nothing is covered that is not for acommercial purpose, as defined in Subsection (5) of Section 1.(1) covers only live shows where sexual acts as defined inSubsection (2) of Section 1 are performed in the presenceof the audience. Mere nudity is not covered by thissubsection, though it is subject to the followingprovisions concerning the display of erotic material.(2) covers advertising in subway stations, outside theaters,etc.(3) and (4) are intended to protect minors. (4) will alsoserve to clean up the typical drugstore, whose proprietorwould rather limit his displays of paperback books andmagazines than keep children out of his store.(5) The idea is that I should be able to pick out a book ormagazine without wading through a pile of nude magazinesor sex books to find what I wat .(6) is meant to cover mail and door to door distribution ofmaterial to people who do not want it.(7) forbids entirely the dissemination of material held bythe Supreme Court to be outside the protection of theFirst Amendment.-98-

An Act to Restrict the Use of Erotic Material for Commercial Purposes

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An Act to Restrict the Use of Erotic Material for Commercial Purposes

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