[Congressional Record Volume 143, Number 92 (Thursday, June 26, 1997)]
[Senate]
[Pages S6491-S6492]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      THE SUPREME COURT'S DECISION DECLARING UNCONSTITUTIONAL THE 
                       COMMUNICATIONS DECENCY ACT

  Mr. LEAHY. Mr. President, The Supreme Court has made clear that we do 
not forfeit our First Amendment rights when we go on-line. This 
decision is a landmark in the history of the Internet and a firm 
foundation for its future growth. Altering the protections of the First 
Amendment for on-line communications would have crippled this new mode 
of communication.
  The Communications Decency Act was misguided and unworkable. It 
reflected a fundamental misunderstanding of the nature of the Internet, 
and it would have unwisely offered the world a model of online 
censorship instead of a model of online freedom.
  Vigilant defense of freedom of thought, opinion and speech will be 
crucially important as the Internet graduates from infancy into 
adolescence and maturity. Giving full-force to the First Amendment on-
line is a victory for the First Amendment, for American technology and 
for democracy.
  The Supreme Court posed the right question: ``Could a speaker 
confidently assume that a serious discussion about birth control 
practices, homosexuality . . . or the consequences of prison rape would 
not violate the CDA? This uncertainty undermines the likelihood that 
the CDA has been carefully tailored to the congressional goal of 
protecting minors from potentially harmful materials.''
  Mixing government and politics with free speech issues often produces 
a corrosive concoction that erodes our constitutional freedoms. 
Congress should not be spooked by new technology into tampering with 
our old Constitution. Even well-intended laws for the protection of 
children deserve close examination to ensure that we are not stepping 
over constitutional lines. The Supreme Court observed:

       we have repeatedly recognized the governmental interest in 
     protecting children from harmful materials. . . . But that 
     interest does not justify an unnecessarily broad suppression 
     of speech addressed to adults. As we have explained, the 
     Government may not ``reduc[e] the adult population . . . to . 
     . . only what is fit for children.' ''

  As a recent editorial in Vermont's Times Argus succinctly noted: ``To 
obey this law, Internet users would have to avoid discussing matters 
routinely covered in books, magazines and newspapers. Who would want to 
drive on that kind of information superhighway?''
  I sent child molesters to prison when I was a prosecutor, and I am a 
parent myself. I want no effort spared in finding and prosecuting those 
who exploit our children, and I want strong laws and strong enforcement 
to do that. But the CDA is the wrong answer, and I applaud the Court 
for its decision.
  We can spend much time and energy in Congress trying to out-muscle 
each other to the most popular position on regulating the content of 
television programs or Internet offerings, and from all appearances, we 
probably will. We should take heed of the Supreme Court's decision 
today, however, and be wary of efforts to jump into regulating the 
content of any form of speech.
  Congress did jump when confronted with the CDA. The Supreme Court 
takes pains in its decision to note at least three times in its opinion 
that this law was brought as an amendment on the floor of the Senate 
and passed as part of the Telecommunications Act, without the benefit 
of hearings, findings, or considered deliberation. As the Supreme Court 
noted in its decision, I cautioned against such speedy action at the 
time. Not surprisingly, the end result was passage of an 
unconstitutional law.
  We should not be substituting the government's judgment for that of 
parents about what is appropriate for their children to access on-line. 
The Supreme Court pointed out excellent examples of how the CDA would 
have operated to do just that, noting:

       ``Under the CDA, a parent allowing her 17-year-old to use 
     the family computer to obtain information on the Internet 
     that she, in her parental judgment, deems appropriate could 
     face a lengthy prison term . . . Similarly, a parent who sent 
     his 17-year-old college freshman information on birth control 
     via e-mail could be incarcerated even though neither he, his 
     child, or anyone in their home community, found the material 
     ``indecent'' or ``patently offensive,'' if the college town's 
     community thought otherwise.''

  I attended the Supreme Court's oral argument in this case and was 
concerned when several of the Justices asked about the ``severability'' 
clause in the CDA: They wanted to know how much of the statute could be 
stricken as unconstitutional and how much could be left standing. The 
majority of the Supreme Court resisted the temptation to do the job of 
Congress and judicially re-write the ``indecency'' and ``patently 
offensive'' provisions of the CDA to be constitutional. The Court said: 
``This Court `will not rewrite a . . . law to conform it to 
constitutional requirements.''
  It is our job to write constitutional laws that address the needs and 
concerns of Americans. On this issue, our work is not done. There is no 
lack of criminal laws on the books to protect children on-line, 
including laws criminalizing the on-line distribution of child 
pornography and obscene materials and prohibiting the on-line 
harassment, luring and solicitation of children for illegal sexual 
activity. Protecting children, whether in cyberspace or physical space, 
depends on aggressively enforcing these existing laws and supervising 
children to ensure they do not venture where the environment is unsafe. 
This will do more--and more effectively--than passing feel-good, 
unconstitutional legislation.

  But, as I said, our work is not done. The CDA became law because of 
the genuine concern of many Americans about the inappropriate material 
unquestionably accessible to computer-savvy children over the Internet. 
Parents, teachers, librarians, content providers, on-line service 
providers and policy-makers need to come together to find effective 
ways to address this concern. I have long believed that we need to put 
the emphasis where it would be most effective: on parental

[[Page S6492]]

and user empowerment tools to control the information that children may 
access on-line. I applaud the efforts already underway to bring 
concerned groups together to define steps we can take to make the on-
line world a comfortable one for families.
  Also, we should now remove the unconstitutional CDA provisions from 
our law books. At the beginning of this Congress, Senators Feingold, 
Jeffords, Kerry and I introduced a bill, S. 213, to repeal the Internet 
censorship provisions of the CDA. We should move promptly to pass that 
measure.
  One of the continuing challenges we will face in making the best use 
of our burgeoning information technologies is in adding value to all 
that they offer. Anyone who uses the Internet knows that there is a lot 
of junk out there. For example, student searching for background on the 
Holocaust may easily come across diatribes on the Internet claiming 
that the Holocaust never happened. In our classrooms, in our homes, in 
our libraries, we must teach our children to be discerning users of 
this powerful new tool.
  We are blessed in the United States to enjoy the oldest and most 
effective constitutional protections of free speech anywhere. The 
struggle facing succeeding generations of Americans in preserving free 
speech liberties often is difficult, and it means standing firm in the 
face of sometimes fleeting but usually intense political pressures, and 
I am proud of the 15 Senators who joined with me to vote against the 
CDA. This is a vindication of that effort.
  We have the technology and the temperament to show the world how the 
Internet can be used to its fullest. This decision has prevented us 
from succumbing to short-sighted political pressures by adopting a 
model of censorship instead.

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