[Congressional Record Volume 143, Number 8 (Tuesday, January 28, 1997)]
[Senate]
[Pages S742-S744]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself, Mr. Feingold, and Mr. Jeffords):
  S. 213. A bill to amend section 223 of the Communications Act of 1934 
to repeal amendments on obscene and harassing use of telecommunications 
facilities made by the Communications Decency Act of 1996 and to 
restore the provisions of such section on such use in effect before the 
enactment of the Communications Decency Act of 1996; to the Committee 
on Commerce, Science, and Transportation.


    legislation to repeal the internet censorship provisions of the 
                       communications decency act

  Mr. LEAHY. Mr. President, I rise to introduce a bill to repeal the 
Internet censorship law that the 104th Congress hastily passed as part 
of the new Telecommunications Act. I vigorously opposed the so-called 
Communications Decency Act, along with Senator Feingold, as 
unnecessary, unworkable and--most significantly--unconstitutional.
  So far, every court to consider this law has agreed with us that the 
Communications Decency Act flunks the constitutionality test. Two 
separate panels of Federal judges in Pennsylvania and New York have 
determined that the Internet censorship law serves as an 
unconstitutional ban on constitutionally protected indecent speech 
between and among adults communicating on-line. The first amendment to 
our Constitution will not tolerate this level of governmental intrusion 
into what people say to each other over computer networks. The matter 
is now before the Supreme Court, which will hear argument on this case 
in March.
  We will be ready to pass this bill and repeal the Internet censorship 
law as soon as the Supreme Court acts--as I am confident they will--to 
strike down the law as unconstitutional. I exhort the Supreme Court to 
make clear that we do not forfeit our first amendment rights when we go 
on-line. Only such guidance will stop wrong-headed efforts in Congress 
and in State legislatures to censor the Internet.
  The first amendment to our Constitution expressly states that 
``Congress shall make no law abridging the freedom of speech.'' The CDA 
flouts that prohibition for the sake of political posturing and in the 
name of protecting our children. Giving full-force to the first 
amendment on-line would not be a victory for obscenity or child 
pornography. This would be a victory for the first amendment and for 
American technology.
  Let us be emphatically clear that the people at risk of committing a 
felony under the CDA 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, we recently passed unanimously a new law that sharply 
increases penalties for people who commit these crimes.
  There is absolutely no disagreement in the Senate 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 and that those who sexually exploit 
children or abuse children should be vigorously prosecuted. As a former 
prosecutor, I have prosecuted people for abusing children. This is 
something where there are no political or ideological differences among 
us.
  But that is not the issue before us. In the heated debate over 
censoring the Internet, I fear that many Members, who have never used a 
computer let alone surfed the Internet, may have been under the 
misapprehension that the Internet is full of sexually explicit 
material. While such material may be accessible on the Internet, one 
court estimated that ``the percentage of Internet addresses providing 
sexually explicit content would be well less than one-tenth of 1 
percent of such addresses'' and that ``as much as 30 percent of the 
sexually explicit material currently available on the Internet 
originates in foreign countries.'' Shea versus Reno, 930 F. Supp. 916, 
931, S.D.N.Y. 1996. Banning indecent material from the Internet is like 
using a meat cleaver to deal with the problems better addressed with a 
scalpel.
  We all want to protect our children from offensive or indecent online 
materials. 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. 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. Let us encourage the technology that empowers 
parents--not the government--to make choices for about what is best for 
their children.
  The CDA is a terribly misguided effort to protect children that 
instead tramples on the free speech rights of all Americans who want to 
enjoy this medium. The Internet censorship law takes a blunderbuss 
approach that puts all Internet users at risk of committing a crime. It 
penalizes with 2-year jail terms and large fines anyone who transmits 
indecent material to a minor, or displays or posts indecent material in 
areas where a minor can see it. By criminalizing what is vaguely 
referred to as ``indecent'' speech, this law imposes far-reaching new 
Federal crimes on Americans for exercising their free speech rights on-
line and on the Internet.
  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. Let me give a 
couple of examples of what is at risk.

  A university professor would risk prosecution by making available on-
line to a freshman literature class excerpts from certain classics, 
such as Catcher in the Rye or Of Mice and Men, all of which have been 
challenged in a number of communities as indecent for minors.
  Forwarding to a child an on-line version of Seventeen magazine, which 
is a frequently challenged school library material, might violate this 
law, even though children are free to buy the magazine at newsstands.
  An e-mail message from one teenager to another with certain four-
letter swear words would violate this law.
  Museums with Web sites will think twice before posting images of 
classic nude paintings or sculptures showing sexual organs, that are 
suspect under the new censorship law.
  On-line discussions about AIDS and other sexually transmitted 
diseases may be illegal under this new law. No one knows.
  Advertisements that would be perfectly legal in print could subject 
the advertiser to criminal liability if circulated on-line.
  In short, the Internet censorship law leaves in the hands of the most 
aggressive prosecutor in the least tolerant

[[Page S743]]

community the power to set standards for what every other Internet user 
may say on-line.
  In bookstores and on library shelves, the protections of the first 
amendment are clear. The courts are unwavering in the protection of 
indecent speech. Altering the protections of the first amendment for 
online communications could cripple this new mode of communication.
  The Internet is an American technology that has swept around the 
world. As its popularity has grown, so have efforts to censor it in 
Germany, in China, in Singapore, and other countries. We should be 
leading the efforts to keep the Internet uncensored, and taking the 
high ground to champion first amendment freedoms. Instead, 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.
  Let us get this new unconstitutional law off the books as soon as 
possible. This bill would repeal the provisions of Communications 
Decency Act that result in a ban of constitutionally protected on-line 
speech, and simply restores the provisions of section 223 of the 
Communications Act of 1934 in effect before passage of the CDA.
  Mr. President, in the last Congress this body and the other body 
passed a piece of legislation called the Communications Decency Act. It 
was done I believe because many felt a concern about what might be seen 
by children on the Internet. Unfortunately--and I said this at the time 
on the floor--the bill is overly broad. It stepped into the first 
amendment in a way that would not have been done with anything else.
  We would not have gone down the road of trampling on the first 
amendment and say that we would have to close down all magazine stores 
because they might sell a magazine, which while acceptable to adults 
might be objectionable to children. We would never say that we would 
close every library in the country, including the Library of Congress, 
because it may have books there that while acceptable to all adults 
might not be acceptable to children. And we would never pass a law to 
close down a publishing house because it published books that might be 
acceptable to adults but unacceptable to children.
  But basically that is what we said we would do with the Internet. We 
said that even though the Internet may be providing something that is 
acceptable to adults, we would basically close down large segments of 
it with criminal penalties because it might have something unacceptable 
to children.
  The first amendment to our Constitution says that Congress shall make 
no law abridging the freedom of speech. And what the CDA, or the 
Communications Decency Act, did was to go way beyond what we believe 
the first amendment stands for. I do not in any way hold any brief for 
child pornographers or child abusers. I am one of the few people in 
this body who have sent child abusers to prison. Whenever I had 
somebody who was involved in child molestation or abusing when I was 
the prosecutor, I prosecuted this as a top priority in my office and 
sought the strongest penalties possible. Everyone, whether parents or 
grandparents, would do everything possible to stop anybody from abusing 
our children. As parents, we would take the responsibility to make sure 
that our children are protected from offensive or indecent material, 
whether it is online, or the Internet, or elsewhere.
  But, unfortunately, no matter what every single one of us feel, 
Republicans or Democrats, or no matter where we are from, the CDA is a 
terribly misguided effort to protect children that instead tramples on 
the free speech of all Americans who want to use the Internet. It takes 
a blunderbuss approach. It puts all Internet users at risk of 
committing a crime. It penalizes by a 2-year jail term and large fines 
anyone who transmits indecent material to a minor, or places or posts 
indecent material in areas where a minor might see it--not whether they 
do or not but they might.
  What this means is a university professor risks prosecution by making 
available online to a freshman literature class excerpts from Catcher 
in the Rye, or Of Mice and Men--all of which have been challenged in 
communities as indecent for minors. Or forwarding to a child online a 
version of Seventeen magazine might violate the law, even though any 
child could buy that magazine freely at a newsstand. E-mail messages 
from one teenager to another using some four-letter words violates the 
law. Museums for web sites are going to think twice before posting 
images of something like Michelangelo's David because showing sexual 
organs would be specifically excluded under this law. Online 
discussions about sexually transmitted diseases could be illegal. 
Advertisements that would be illegal in print could be illegal here.
  So it is because of that, because it went so far, that the courts 
have looked at this and have unanimously struck it down. They have said 
that it is unconstitutional. Multijudge panels in Philadelphia and New 
York City came unanimously to that view, and it is now before the U.S. 
Supreme Court.
  Experts from the right to the left that I have spoken with 
on constitutional law predict that the Supreme Court will uphold the 
unanimous decision of the lower Federal court and find it 
unconstitutional.

  So I am going to introduce a bill to repeal the Internet censorship 
parts of the Communications Decency Act, and I will do this along with 
Senator Feingold because the law is unnecessary, unworkable, and, most 
significantly, unconstitutional. There are better ways of doing this. 
Let us work with computer software producers on programs that can 
screen out material which parents find offensive and allow a parent to 
know where a child has gone on the Internet and allow parents to make 
this decision--just as when my children were growing up before the 
Internet, I would say, ``I know you can go to such and such a bookstore 
and buy this or that magazine but your mother and I prefer you do not. 
And let us instead give you some ideas of better things to read,'' and 
work with them.
  Technology will allow parents to do that. It will allow them to block 
out offensive material. But perhaps more importantly when their 
children become computer literate--something that those of our age may 
not be able to do--allow parents to work with their children and find 
out how the Internet works and find out about the tremendous things 
available from the Smithsonian, the Library of Congress, the Vatican 
museum, the sports pages, computer games, information from major 
magazines and writers--and things that are sometimes junkie and 
frivolous but harmless nonetheless.
  That is what we should do and not be in the position of putting the 
heavy hand of Government censorship on something that is so 
quintessentially American as the Internet, which has shown the genius 
of what we are able to do in this country and how we are able now to 
bring it to all other countries around the world. This happened 
because--and very specifically because--the Government stepped out of 
the picture and allowed the genius of individuals to do it. That means, 
just like the publishing of newspapers, magazines and everything else, 
that you get a certain amount of junk that gets in there. Most of us 
can pretty well decide what is junk and what is not. We discard that, 
and we go on to the best. We can do this.
  So I summit, Mr. President, on behalf of myself, Mr. Feingold, and 
Mr. Jeffords, legislation as I said, to repeal the Internet censorship 
provisions of the Communications Decency Act, and simply restore the 
law in effect before we banned constitutionally protected on-line 
speech. I ask unanimous consent that it be appropriately referred.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 213

       Be it enacted by the Senate and House of representatives of 
     the United States of America in Congress assembled,

     SECTION 1. REPEAL OF PROVISIONS ON OBSCENE AND HARASSING USE 
                   OF TELECOMMUNICATIONS FACILITIES ENACTED BY 
                   COMMUNICATIONS DECENCY ACT OF 1996.

       Section 223 of the Communications Act of 1934 (47 U.S.C. 
     223) is amended by striking subsections (a) and (d) through 
     (h).

[[Page S744]]

     SEC. 2. RESTORATION OF PROVISIONS ON OBSCENE AND HARASSING 
                   USE OF TELECOMMUNICATIONS FACILITIES IN EFFECT 
                   BEFORE COMMUNICATIONS DECENCY ACT OF 1996.

       Section 223 of the Communications Act of 1934 (47 U.S.C. 
     223), as amended by section 1 of this Act, is further amended 
     by inserting before subsection (b) the following new 
     subsection (a):
       ``(a) Whoever--
       ``(1) in the District of Columbia or in interstate or 
     foreign communications by means of telephone--
       ``(A) makes any comment, request, suggestion or proposal 
     which is obscene, lewd, lascivious, filthy, or indecent;
       ``(B) makes a telephone call, whether or not conversation 
     ensues, without disclosing his identity and with intent to 
     annoy, abuse, threaten, or harass any person at the called 
     number;
       ``(C) makes or causes the telephone of another repeatedly 
     or continuously to ring, with intent to harass any person at 
     the called number; or
       ``(D) makes repeated telephone calls, during which 
     conversation ensues, solely to harass any person at the 
     called number; or
       ``(2) knowingly permits any telephone facility under his 
     control to be used for any purpose prohibited by this 
     section,

     shall be fined not more than $50,000 or imprisoned not more 
     than six months, or both.''.

  Mr. FEINGOLD. Mr. President, I am pleased to join the Senator from 
Vermont [Mr. Leahy] in introducing this legislation to repeal the 
Communications Decency Act [CDA]. I believe Congress made a grave 
mistake in enacting the CDA and it is time to correct it.
  Congress passed the CDA without taking the time to fully examine its 
ability to protest children and its effect on the free speech rights of 
Americans. As a result, the CDA has been the subject of a court 
challenge since the day it was signed into law. Last June, a three-
judge Federal panel granted a preliminary injunction against the 
Federal enforcement of key provisions of the CDA finding them 
unconstitutional. The Supreme Court will hear oral arguments in the 
first amendment challenge to the CDA on March 19, 1997.
  The Communications Decency Act, enacted as part of the 
Telecommunications Act of 1996, subjected anyone who transmitted 
indecent material to minors over the Internet to criminal sanctions. 
The commonly accepted definition of ``indecency'' includes mild 
profanity.
  I strongly opposed the CDA not only because I believe it violates our 
constitutionally guaranteed right to free speech, but also because I 
feel strongly that it fails to truly protect children from those who 
might seek to harm them.
  The fundamental error of CDA proponents was their attempt to apply 
decades-old broadcasting standards to an emerging technology that 
defies categorization--the Internet. While the Supreme Court has 
allowed speech restrictions for broadcast media, it has made clear that 
such restrictions do not violate the first amendment only if there is a 
compelling Government interest in restricting speech and the 
restriction is applied in the least restrictive means. It is 
predominantly the nature of the medium which determines whether or not 
a criminal prohibition on speech is the least restrictive means of 
meeting a compelling Government interest. in the case of a radio or 
television, the fact that a child might simply turn on a station and 
hear offensive material provides a basis for allowing an arguably 
tighter restriction on indecent speech. Restraints upon newspapers and 
other print media, which are inherently noninvasive, have been very 
limited.
  While the Net bears some similarities to both media, it is a unique 
and ever-changing communications medium. One can be a speaker, a 
publisher and a listener using the Internet. Currently, anyone with the 
know-how and the proper hardware and software can set up a Web page, 
become a de facto publisher, making information available to others at 
little cost to oneself or the consumer of that information. One can 
also post a message to an Internet newsgroup, an informal and often 
unmoderated information sharing forum, which can then be ready by 
anyone accessing that newsgroup.
  The promise of the Internet is its free flow of information across 
vast physical distances and boundaries to anyone with access to a 
computer and an Internet connection. The threat of the Communications 
Decency Act is its undeniable ability to stifle this free-flowing 
speech on the Net. Mr. President, that threat exists because Congress 
failed to recognize the danger of applying an overly broad indecency 
standard to a technology with the characteristics of the Internet.

  Out of fear of prosecution, the vagueness of the indecency standard, 
and an inability to control the age of those who might ultimately see 
the information, speakers on the Net will become silent. Those offering 
commercial access to the Internet will be required to restrict access 
to speech in order to protect themselves from criminal prosecution.
  Last year, a panel of three Federal judges came to the same 
conclusion: this statute cannot be enforced without violating the 
Constitution. The Court stated:

       . . . the Internet may fairly be regarded as a never-ending 
     worldwide conversation. The Government may not, through the 
     CDA, interrupt that conversation. As the most participatory 
     form of mass speech yet developed, the Internet deserves the 
     highest protection from government intrusion.

  I believe the Federal Court came to this conclusion because the 
judges took the time to study and understand the characteristics of the 
Net before rushing to judgement--something Congress failed to do.
  It is time to undo that mistake by repealing the Communications 
Decency Act. Not only does the CDA infringe on free speech rights of 
adults, it does not protect children from those who seek to harm them 
using the Internet, and it may actually impede the development of more 
sophisticated screening software in the marketplace. When Congress 
passed the CDA, there already existed filtering software which gave 
parents the ability to filter out objectionable content such as 
indecency, violence, adult topics etc. The passage of the CDA 
necessarily will reduce demand for such software products, which are 
effective in preventing children's access to such content. The CDA 
merely provides parents with a false sense of security that the Federal 
Government will somehow protect their children, so they no longer have 
to worry about the Internet themselves.
  And that is the irony, Mr. President. The CDA is simply not capable 
of protecting children on the Internet. Much Internet content 
originates on foreign soil, making effective enforcement of the CDA 
impossible. Furthermore, the dissemination of materials which we all 
agree are most harmful to children--obscenity and child pornography--is 
already illegal on the Internet and subject to hefty criminal 
sanctions. We should put our law enforcement resources into 
aggressively prosecuting these criminal violations and recognize that 
the Internet is merely another tool used by those seeking to harm our 
children. We must prosecute the crime, not demonize the medium used by 
the criminal.
  Mr. President, it is time to repeal the Communications Decency Act--
an unconstitutional statute that fails to protect children. We owe that 
to all Americans and most important, we owe it to this country's 
children.
                                 ______