[Congressional Record Volume 142, Number 18 (Friday, February 9, 1996)]
[Senate]
[Pages S1180-S1182]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself and Mr. Feingold):
  S. 1567. A bill to amend the Communications Act of 1934 to repeal the 
amendments relating to obscene and harassing use of telecommunications 
facilities made by the Communications Decency Act of 1995; to the 
Committee on Commerce, Science, and Transportation.


                     telecommunication legislation

  Mr. LEAHY. Mr. President, last week, the Congress passed 
telecommunications legislation. The President signed it into law this 
week. For a number of reasons, and I stated them in the Chamber at the 
time, I voted against the legislation. There were a number of things in 
that legislation I liked and I am glad to see them in law. There were, 
however, some parts I did not like, one of them especially. Today I am 
introducing a bill to repeal parts of the new law, parts I feel would 
have far-reaching implications and would impose far-reaching new 
Federal crimes on Americans for exercising their free speech rights on-
line and on the Internet.
  The parts of the telecommunications bill called the Communications 
Decency Act are fatally flawed and unconstitutional. Indeed, such 
serious questions about the constitutionality of this legislation have 
been raised that a new section was added to speed up judicial review to 
see if the legislation would pass constitutional muster. The 
legislation is not going to pass that test.
  The first amendment to our Constitution expressly states that 
``Congress shall make no law abridging the freedom of speech.'' The new 
law flouts that prohibition for the sake of political posturing. We 
should not wait to let the courts fix this mistake. Even on an 
expedited basis, the judicial review of the new law would take months 
and possibly years of litigation. During those years of litigation 
unsuspecting Americans who are using the Internet in unprecedented 
numbers and more every day, are going to risk criminal liability every 
time they go on-line.
  Let us be emphatically clear that the people at risk of committing a 
felony under this new law are not child pornographers, purveyors of 
obscene materials, or child sex molesters. These people can already be 
prosecuted and should be prosecuted under longstanding Federal criminal 
laws that prevent the distribution over computer networks of obscene 
and other pornographic materials harmful to minors, under 18 U.S.C. 
sections 1465, 2252 and 2423(a); that prohibit the illegal solicitation 
of a minor by way of a computer network, under 18 U.S.C. section 2252; 
and that bar the illegal luring of a minor into sexual activity through 
computer conversations, under 18 U.S.C. section 2423(b). In fact, just 
last year, we passed unanimously a new law that sharply increases 
penalties for people who commit these crimes.
  There is absolutely no disagreement in the Senate, no disagreement 
certainly among the 100 Senators about wanting to protect children from 
harm. All 100 Senators, no matter where they are from, would agree that 
obscenity and child pornography should be kept out of the hands of 
children. All Senators agree that we should punish those who sexually 
exploit children or abuse children. I am a former prosecutor. I have 
prosecuted people for abusing children. This is something where there 
are no political or ideological differences among us.

  I believe there was a terribly misguided effort to protect children 
from what some prosecutors somewhere in this country might consider 
offensive or indecent online material, and in doing that, the 
Communications Decency Act tramples on the free speech rights of all 
Americans who want to enjoy this medium.
  This legislation sweeps more broadly than just stopping obscenity 
from being sent to children. It will impose felony penalties for using 
indecent four-letter words, or discussing material deemed to be 
indecent, on electronic bulletin boards or Internet chat areas and news 
groups accessible to children.
  Let me give a couple of examples: You send e-mail back and forth, and 
you want to annoy somebody whom you talked with many times before--it 
may be your best buddy--and you use a four-letter word. Well, you could 
be prosecuted for that, although you could pick up the phone, say the 
same thing to him, and you commit no crime; or send a letter and say 
the same word and commit no crime; or talk to him walking down the 
street and commit no crime.
  To avoid liability under this legislation, users of e-mail will have 
to ban curse words and other expressions that might be characterized as 
indecent from their online vocabulary.
  The new law will punish with 2-year jail terms someone using one of 
the seven dirty words in a message to a minor or for sharing with a 
minor material containing indecent passages. In some areas of the 
country, a copy of Seventeen magazine would be considered indecent, 
even though kids buy it. The magazine is among the 10 most frequently 
challenged school library materials in the country. Somebody sends an 
excerpt from it, and bang, they could be prosecuted.
  The new law will make it a crime ``to display in a manner available 
to'' a child any message or material ``that, in context, depicts or 
describes, in terms patently offensive as measured by contemporary 
community standards, sexual or excretory activities or organs* * *'' 
That covers any of the over 13,000 Usenet discussion groups, as well as 
electronic bulletin boards, online service provider chat rooms, and Web 
sites, that are all accessible to children. 

[[Page S1181]]

  This display prohibition, according to the drafters, ``applies to 
content providers who post indecent material for online display without 
taking precautions that shield that material from minors.''
  What precautions will Internet users have to take to avoid criminal 
liability? These users, after all, are the ones who provide the 
``content'' read in news groups and on electronic bulletin boards. The 
legislation gives the FCC authority to describe the precautions that 
can be taken to avoid criminal liability. All Internet users will have 
to wait and look to the FCC for what they must do to protect themselves 
from criminal liability.
  Internet users will have to limit all language used and topics 
discussed in online discussions accessible to minors to that 
appropriate for kindergartners, just in case a child clicks onto the 
discussion. No literary quotes from racy parts of ``Catcher in the 
Rye'' or ``Ulysses'' will be allowed. Certainly, online discussions of 
safe sex practices, or birth control methods, and of AIDS prevention 
methods will be suspect. Any user who crosses the vague and undefined 
line of ``indecency'' will be subject to 2 years in jail and fines.
  This worries me considerably. I will give you an idea of what 
happens. People look at this, and because it is so vague and so broad 
and so sweeping, attempts to protect one's self from breaking the law 
become even broader and even more sweeping.
  A few weeks ago, America Online took the online profile of a 
Vermonter off the service. Why? Because the Vermonter used what AOL 
deemed a vulgar, forbidden word. The word--and I do not want to shock 
my colleagues--but the word was ``breast.'' And the reason this 
Vermonter was using the word ``breast"? She was a survivor of breast 
cancer. She used the service to exchange the latest information on 
detection of breast cancer or engage in support to those who are 
survivors of breast cancer. Of course, eventually, America Online 
apologized and indicated they would allow the use of the word where 
appropriate.
  We are already seeing premonitions of the chilling effect this 
legislation will have on online service providers. Far better we use 
the laws on the books today to go after child pornographers, to go 
after child abusers.
  What strikes some people as indecent or patently offensive may look 
very different to other people in another part of the country. Given 
these differences, a vague ban on patently offensive and indecent 
communications may make us feel good but threatens to drive off the 
Internet and computer networks an unimaginable amount of valuable 
political, artistic, scientific, health and other speech.
  For example, many museums in this country and abroad are going high-
technology and starting Web pages to provide the public with greater 
access to the cultural riches they offer. What if museums, like the 
Whitney Museum, which currently operates a Web page, had to censor what 
it made available online out of fear of being dragged into court? Only 
adults and kids who can make it in person to the museum will be able to 
see the paintings or sculpture censored for online viewing under this 
law.
  What about the university health service that posts information 
online about birth control and protections against the spread of AIDS? 
With many students in college under 18, this information would likely 
disappear under threat of prosecution.
  What happens if they are selling online versions of James Joyce's 
``Ulysses'' or of ``Catcher in the Rye''? Can they advertise this? Can 
excerpts be put online? In all likelihood not. The Internet is breaking 
new ground important for the economic health of this country. 
Businesses, like the Golden Quill Book Shop in Manchester Center, VT, 
can advertise and sell their books around the country or the world via 
the Internet. But now, advertisers will have to censor their ads.
  For example, some people consider the Victoria's Secret catalogue 
indecent. Under this new law, advertisements that would be legal in 
print could subject the advertiser to criminal liability if circulated 
online. You could put them in your local newspaper, but you cannot put 
it online.
  In bookstores and on library shelves, the protections of the first 
amendment are clear. The courts are unwavering in the protection of 
indecent speech. In altering the protections of the first amendment for 
online communications, I believe you could cripple this new mode of 
communication.
  At some point you have to start asking, where do we censor? What 
speech do we keep off? Is it speech we may find politically disturbing? 
If somebody wants to be critical of any one Member of Congress, are we 
able to keep that off? Should we be able to keep that off? I think not. 
There is a lot of reprehensible speech and usually it becomes more 
noted when attempts are made to censor it rather than let it out in the 
daylight where people can respond to it.
  The Internet is an American technology that has swept around the 
world. As its popularity has grown, so have efforts to censor it. For 
example, complaints by German prosecutors prompted an online service 
provider to cut off subscriber access to over 200 Internet news groups 
with the words ``sex,'' ``gay,'' or ``erotica'' in the name. They 
censored such groups as ``clarinet.news.gays,'' which is an online 
newspaper focused on gay issues, and ``gay-net.coming-out,'' which is a 
support group for gay men and women dealing with going public with 
their sexual orientation.

  German prosecutors have also tried to get AOL to stop providing 
access to neo-Nazi propaganda accessible on the Internet. No doubt such 
material is offensive and abhorrent, but nonetheless just as protected 
by our first amendment as indecent material.
  In China, look what they are trying to do. They are trying to create 
an intranet that would heavily censor outside access to the worldwide 
Internet. We ought to make sure it is open, not censored. We ought to 
send that out as an example to China.
  Americans should be taking the high ground to protect the future of 
our home-grown Internet, and to fight these censorship efforts that are 
springing up around the globe. Instead of championing the first 
amendment, however, the Communications Decency Act tramples on the 
principles of free speech and free flow of information that has fueled 
the growth of this medium.
  We have to be vigilant in enforcing the laws we have on the books to 
protect our children from obscenity, child pornography, and sexual 
exploitation. Those laws are being enforced. Just last September, using 
current laws, the FBI seized computers and computer files from about 
125 homes and offices across the country as part of an operation to 
shut down an online child pornography ring.
  I well understand the motivation for the Communications Decency Act. 
We want to protect our children from offensive or indecent online 
materials. This Senator--and I am confident every other Senator--agrees 
with that. But we must be careful that the means we use to protect our 
children does not do more harm than good. We can already control the 
access our children have to indecent material with blocking 
technologies available for free from some online service providers and 
for a relatively low cost from software manufacturers.
  Frankly, and I will close with this, Mr. President, at some point we 
ought to stop saying the Government is going to make a determination of 
what we read and see, the Government will determine what our children 
have or do not have.
  I grew up in a family where my parents thought it was their 
responsibility to guide what I read or would not read. They probably 
had their hands full. I was reading at the age of 4. I was a voracious 
reader, and all the time I was growing up I read several books a week 
and went through our local library in the small town I grew up in very 
quickly. That love of reading has stood me in very good stead. I am 
sure I read some things that were a total waste of time, but very 
quickly I began to determine what were the good things to read and what 
were the bad things. I had read all of Dickens by the end of the third 
grade and much of Robert Louis Stevenson. I am sure some can argue 
there are parts of those that maybe were not suitable for somebody in 
third grade. I do not think I was severely damaged by it at all. That 
same love of reading helped me get through law school and become a 
prosecutor 

[[Page S1182]]
where I did put child abusers behind bars.
  Should we not say that the parents ought to make this decision, not 
us in the Congress? We should put some responsibility back on families, 
on parents. They have the software available that they can determine 
what their children are looking at. That is what we should do. Banning 
indecent material from the Internet is like using a meat cleaver to 
deal with the problems better addressed with a scalpel.
  We should not wait for the courts. Let us get this new 
unconstitutional law off the books as soon as possible.
                                 ______