A minority of jurisdictions, including the State of California,^[151] retain the requirement that material must be "utterly without redeeming social value" in order to be found obscene.^[152]

This standard emanates from the case of Roth v. United States, and the later case of Memoirs v Massachusetts^[153] in which a plurality of the Supreme Court held that a book alleged to be obscene cannot be proscribed unless it is found to be utterly without redeeming social value.^[154] The court reversed an obscenity conviction involving John Cleland's book Memoirs of a Woman of Pleasure because the work possessed a "modicum" of social value.^[155] The Memoirs test made it almost impossible to convict in obscenity cases.^[156] When the Supreme Court decided Miller v. California,^[157] a new obscenity test resulted.^[158] Although the Court remained divided on basic philosophical grounds, not a single member of the Court voted to retain the Memoirs standard. (emphasis added). Writing for the Court in Miller Chief Justice Warren E. Burger said the standard formulated in Memoirs required proof of a negative, "a burden virtually impossible to discharge under our criminal standards of proof." (emphasis added).^[159]

The Court also noted that the standard had even been abandoned by Justice William Brennan who authored the Court's opinion in Memoirs. To the extent that the Memoirs standard exists today, it makes prosecution of obscenity cases extremely difficult. To win acquittal on an obscenity charge, a defendant need only demonstrate some miniscule social value as opposed to the serious literary, artistic, political or scientific value required under Miller. The Memoirs standard is still the law in California^[160] and has posed a major obstacle to successful obscenity prosecutions. Consequently, the legal problems attendant to prosecution may contribute to factors which the wholesale pornography industry is centered in the Los Angeles area, and produces most of the materials sold in the entire United States. The pornography industry in the area of Los Angeles earns at least $550 million a year^[161] and produces eighty percent of the sexually explicit videotapes, eight millimeter films and novelties are produced there.^[162]

The principle of Federalism protects the constitutional prerogative of the states to enact obscenity laws which embody standards less stringent than those approved by the United States Supreme Court in Miller. As Chief Justice Burger wrote in Paris Adult Theatre I v. Slaton^[163]

The States, of course, may follow such a "laissez faire" policy and drop all controls on commercialized obscenity, if that is what they prefer, just as they can ignore consumer protection in the marketplace, but nothing in the Constitution compels the States to do so with regard to matters falling within state jurisdiction. See, United States v. Reidel, 402 U.S., at 357, 28 L. Ed. 2d 813; Memoirs v. Massachusetts, 383 U.S., at 462. 16 L. Ed. 2d 1(White, J., dissenting). "We do not sit as a superlegislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions." Griswold v. Connecticut, 381 U.S. 479, 482, 14 L. Ed. 2d 510, 85 S. Ct. 1678(1965). See, Ferguson v. Skrupa, 372 U.S., at 731, 10 L. Ed. 2d 93, 95 ALR 2d 1347(1963); DayBrite Lighting Inc. v. Missouri, 342 U.S. 421, 423, 96 L. Ed. 469, 72 S. Ct. 405(1952).^[164]

Law enforcement officers in California blame the existing law for severely hampering their effectiveness in eliminating this activity.^[165] A Los Angeles Police Department Captain testified, "We have pleaded with the state legislature ever since Miller came into being to adopt it."^[166]

If states sincerely wish to provide an effective basis for law enforcement this change in standards is essential.

RECOMMENDATION 8:
State legislatures should amend, if necessary, obscenity statutes to eliminate misdemeanor status for second offenses and make any second offense punishable as a felony.

State obscenity statutes frequently classify a first conviction as a misdemeanor. In some jurisdictions an obscenity violation becomes a felony when the specific offender is convicted a second time. In other jurisdictions an obscenity violation will remain a misdemeanor regardless of the number of prior convictions. This system results in minimal penalties for many offenders and is no deterrent to large scale criminal enterprise.

State obscenity laws which provide misdemeanor penalties for recidivist offenders produce results which have a minimal deterrent effect. Fines in the amount of thirty to ninety dollars are a common disposition for a first offense in Chicago.^[167] Three hundred to five hundred dollar fines are standard in Houston, Texas.^[168] In Florida, a corporation with twenty-five prior obscenity convictions was fined $1,600.^[169] In Los Angeles, where the industry earns $550 million a year,^[170] a major distributor is often fined no more than $10,000.^[171] The amounts of these fines are inconsequential when compared to the profits earned by many producers or sellers of obscene material.^[172]

An amendment to state statutes enhancing the penalties for subsequent convictions for obscenity violations would recognize the recidivist nature of the crime and should be directed to management personnel of the wholesale or retail operation. Classifying the crime as a felony would allow judges to impose substantial fines and periods of incarceration for a repeat offender. A conviction for a felony would substantially reduce the incidence of inappropriate sentencing for recidivists.

RECOMMENDATION 9:
State legislatures should enact, if necessary, forfeiture provisions as part of their obscenity laws.

The addition of forfeiture provisions to the state obscenity statutes would greatly enhance their deterrent effect and would be an effective tool for law enforcement officers to use against the most egregious offenders. These forfeiture provisions may mirror such provisions found in several federal statutes. The precise scope of the forfeitures should be the decision of each state legislature and subject to judicial interpretation.

Some states already have taken the initiative in implementing forfeiture provisions in their obscenity laws. The Metropolitan Bureau of Investigation (M.B.I.) in Orlando, Florida, provides an excellent example of the effectiveness of forfeiture provisions under state law. Using the forfeiture provisions of the Florida RICO Act, the M.B.I. obtained forfeitures of $80,000 to $100,000 worth of property in a single investigation and prosecution.^[173] The forfeited property included two computer systems, two projection screen televisions and a large assortment of films, magazines, and novelties.^[174] Forfeiture should be used to uproot the capital of pornography producers and distributors. Used effectively, forfeiture can substantially handicap these businesses.

RECOMMENDATION 10:
State legislatures should enact a Racketeer Influenced Corrupt Organizations (RICO) statute which has obscenity as a predicate act.

States which do not have obscenity as a predicate offense for a racketeer influenced corrupt organizations (RICO) violation should consider enacting such legislation. RICO provides an effective means to substantially eliminate obscenity businesses. (See, Recommendations for the United States Department of Justice, Infra.).