[Congressional Record Volume 141, Number 159 (Friday, October 13, 1995)]
[Senate]
[Pages S15152-S15153]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 HOUSE-SENATE CONFERENCE ON TELECOMMUNICATIONS REFORM HAS IMPLICATIONS 
            FOR FIRST AMENDMENT APPLICATION TO THE INTERNET

  Mr. FEINGOLD. Mr. President, today the Senate appointed Members to 
the House-Senate conference committee on telecommunications reform. The 
historic nature of this legislation and its effect on the lives of 
every citizen of this country goes well beyond the issues associated 
with regulation of telephony, cable rates, and other forms of 
communications. Mr. President, this legislation has dramatic 
implications for the first amendment rights of every American.
  Mr. President, I am referring to the precedent-setting provisions in 
S. 652 and H.R. 1555 regarding indecency on the Internet. I am here 
today to urge each Senate conferee to take the first amendment issues 
of these bills seriously and to consider the ramifications of these 
provisions not just for speech on the Internet but for all speech in 
this country. During conference deliberations, I urge Senate conferees 
to strike the potentially unconstitutional provisions regarding on-line 
indecency contained in both the Senate and House versions of this 
legislation.
  The issue of Government censorship of the Internet is a critical 
first amendment matter. Guaranteeing the Internet is free of speech 
restrictions, other than the statutory restrictions on obscenity and 
pornography on the Internet which already exist, should be of concern 
to all Americans who want to be able to freely discuss issues of 
importance to them regardless of whether others might view those 
statements as offensive or distasteful.
  Specifically, Mr. President, the Exon-Coats amendment, added to S. 
652 on the Senate floor, included provisions which I believe violate 
the first amendment rights of Internet users and will have a chilling 
effect on further economic and technological development of this 
exciting new form of 

[[Page S 15153]]
telecommunications. When this matter was considered on the Senate 
floor, I urged my colleagues to reject the Exon-Coats amendment in 
favor of legislation requiring the Department of Justice to carefully 
study the applicability of existing obscenity statutes to computer 
networks, which Senator Leahy and I offered as an alternative.
  Specifically I have objected to the indecency provisions of S. 652 
for the following reasons:
  First, indecent speech, unlike obscenity, is protected under the 
first amendment to the U.S. Constitution; second, an outright ban on 
indecent speech on computer networks is not the least restrictive means 
of protecting children from exposure to such speech on the Internet. 
There are a number of existing tools available today to allow parents 
to protect their children from materials which they find inappropriate; 
third, a ban on indecent speech to minors on the Internet will 
unnecessarily require adults to self-censor their communications on the 
Internet; fourth, since indecency will be defined by community 
standards, protected speech by adults will be diminished to what might 
be considered decent in the most conservative community in the United 
States and to what might be appropriate for very young children; fifth, 
the on-line indecency provisions will establish different standards for 
the same material that appears in print and on the computer screen. 
Works that are completely legal in the bookstore or on the library 
shelf would be criminal if transmitted over computer networks; sixth, 
the Supreme Court has ruled that the degree to which content can be 
regulated depends on the characteristics of the media. The unique 
nature of interactive media must be considered when determining how 
best to protect children. S. 652 ignores the degree to which users have 
control over the materials to which they are exposed as well as the 
decentralized nature of interactive technology which liken it more to 
print media than broadcast media.
  Mr. President, the Senate was not alone in its rush to judgment on 
the controversial and highly emotional issue of pornography accessed 
via computer networks. Section 403 of H.R. 1555, known as the Hyde 
amendment, raises equally serious concerns with respect to the first 
amendment and appears antithetical to other provisions contained in the 
House bill. The prohibitions against on-line indecency contained in the 
Hyde language will have a similar chilling effect on the on-line 
communications of adults. The Hyde amendment is also inconsistent with 
the more market oriented and less intrusive provisions of section 104 
of H.R. 1555, the On-Line Family Empowerment Act introduced by 
Congressmen Cox and Wyden, as adopted by the House. Section 104 
recognizes that first amendment protections must apply to on-line 
communications by prohibiting FCC content regulation of the Internet. 
The Cox-Wyden provisions also promote the use of existing technology to 
empower parents to protect their children from objectionable materials 
on the Internet, and encourages on-line service providers to self-
police offensive communications over their private services.
  In addition, the Hyde amendment is incompatible with the pro-first 
amendment provisions of section 110 of H.R. 1555, which requires a 
report by the Department of Justice [DOJ] on existing criminal 
obscenity and child pornography statutes and their applicability to 
cyber-crime. Section 110 also requires an evaluation of the technical 
means available to enable parents to exercise control over the 
information that their children receive on the Internet. Perhaps most 
significantly, section 110 embraces the application of first amendment 
speech protections to interactive media. H.R. 1555, while embracing the 
principles of restraint with respect to new criminal sanctions on 
protected speech and the promotion of a free-market parental 
empowerment approach, simultaneously ignores both of those axioms with 
the Hyde provision. By imposing new criminal sanctions on indecent 
speech and amending existing criminal statutes, the Hyde amendment 
rushes to judgment before the DOJ study has even begun.
  Mr. President, recently the Senate Judiciary Committee held the first 
ever congressional hearing on the issue of cyberporn. Based on the 
testimony of the witnesses, which included parents as well as victims 
of cyberporn, it became clear that the objectionable communications on 
the Internet are already covered by existing criminal statutes. The 
concerns raised at the hearing centered upon trafficking of child 
pornography, the proliferation of obscenity, and the solicitation and 
victimization of minors via the Internet. However, those offenses are 
already violations of criminal law. Indeed, recent press accounts 
indicate that law enforcement officers are already aggressively 
prosecuting on-line users for violations of criminal law relating to 
obscenity and child pornography.
  It is critical that we use law enforcement resources to prosecute 
criminal activity conducted via the Internet and not be distracted by 
the issue of indecency which has not been identified as a serious 
concern by users or parents. It was clear, during our recent Senate 
hearing, that the witnesses' concerns about the Internet did not relate 
to indecent speech or the so-called seven dirty words. It is incumbent 
upon Congress to wait for the results of the study required by H.R. 
1555 before embracing overly restrictive, potentially unnecessary, and 
possibly unconstitutional prohibitions on indecent speech contained in 
both versions of telecommunications reform legislation.
  Mr. President, I urge the conference committee to reject the Exon-
Coats and Hyde provisions during its deliberations and to maintain the 
Cox-Wyden amendment adopted overwhelmingly by the House of 
Representatives. If the United States is to ever fully realize the 
benefits of interactive telecommunications technology, we cannot allow 
the heavy hand of Congress to unduly interfere with communications on 
this medium.
  Furthermore, Mr. President, I urge Senate conferees to recognize that 
if the first amendment has any relevancy at all in the 1990's, it must 
be applied to speech on the Internet. As Members of this body sworn to 
uphold the Constitution we cannot take a cafeteria style approach to 
the first amendment, protecting the same speech in some forms of media 
and not in others. Shifting political views about what types of speech 
are viewed as distasteful should not be allowed to determine what is or 
is not an appropriate use of electronic communications. While the 
current target of our political climate is indecent speech--the so-
called seven dirty words--a weakening of first amendment protections 
could lead to the censorship of other crucial types of speech, 
including religious expression and political dissent.
  I believe the censorship of the Internet is a perilous road for the 
Congress to walk down. It sets a dangerous precedent for first 
amendment protections and it is unclear where that road will end.

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