[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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