[Congressional Record Volume 145, Number 103 (Tuesday, July 20, 1999)]
[Extensions of Remarks]
[Pages E1602-E1603]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          COSPONSOR H.R. 2560

                                 ______
                                 

                       HON. ERNEST J. ISTOOK, JR.

                              of oklahoma

                    in the house of representatives

                         Tuesday, July 20, 1999

  Mr. ISTOOK. Mr. Speaker, I rise today to urge my colleagues to 
cosponsor H.R. 2560, the ``Child Protection Act of 1999.'' This bill 
would require that filters that block obscenity and child pornography 
be placed on all computers with Internet connections that minors can 
access which have been purchased with Federal funds. Here is a copy of 
my ``Dear Colleague'' and a copy of the Congressional Research Service 
opinion that says this approach is constitutional. It is important that 
we protect our children from obscenity and child pornography.

                 Protect Our Children From Obscenity!!!

       Dear Colleague: There are over 30,000 pornographic Internet 
     web sites. 12-17 year old adolescents are among the larger 
     consumers of Porn (U.S. Commission on Pornography) 
     Transporting obscenity on the Internet is a Federal crime. 
     (Punishable by a fine and not more than 5 years in prison for 
     the first offense and a fine and up to 10 years in prison for 
     the second offense, plus a basic fine of up to $250,000. 18 
     USC 1462)
       In 1998, Congress tried to protect children from obscenity 
     with the ``Child Online Protection Act.'' That legislation 
     attempted to protect our children by requiring adult 
     identification before admission to a site. The court has 
     blocked this since some adults may not have appropriate 
     identification and might be denied access. Our children are 
     still in danger.
       If we cannot protect our children from the obscenity on 
     websites, the only solution is to protect them when they use 
     the Internet. In 1998, the Labor-HHS-Education Appropriations 
     subcommittee adopted an amendment which would protect our 
     children from obscenity on the Internet. This provision was 
     supported by every member of the subcommittee, both Democrat 
     and Republican. The roll call vote was unanimous.
       This legislation requires a school or library which 
     receives Federal funds for the purchase of computers or 
     computer-related equipment (modems, LANs, etc.), to install 
     an Internet obscenity/child pornography filter on any 
     computer to which minors have access.
       Because the filters are not yet perfect, and might 
     inadvertently block non-obscene websites, the provision 
     allows access to other sites with the assistance of an adult. 
     The filter can be turned off with a password, for example, 
     for that one session; the filters routinely turn back on 
     automatically after that user exits the Internet. The filter 
     software is required only for computers to which minors have 
     access, so, for example, it would not restrict a teacher's 
     computer in their personal office, or any computer in a 
     strictly-adult section of a library.
       If the filtering software is not installed, the school or 
     library involved would have funds withheld for further 
     payments toward computers and computer-related services, 
     until they comply with the law.
       State agencies, who have oversight of the appropriated 
     funds, are responsible for approving software to comply with 
     this legislation. There is no authority for the Department of 
     Education to dictate this selection. The Department of 
     Education only has authority to determine the accepted 
     software packages usable by Indian Tribes and Department of 
     Defense schools and libraries. This is designed to assure 
     local control, and to foster competition in the software 
     market.
       The Supreme Court has determined that obscenity is not 
     constitutionally-protected speech. This legislation will not 
     curtail anyone's constitutionally-protected speech.
       If you have questions or to cosponsor, call Dr. Bill Duncan 
     (Rep. Istook) at 5-2132.
                                            Ernest J. Istook, Jr.,
     Member of Congress.
                                  ____

                                   Congressional Research Service,


                                          Library of Congress,

                                     Washington, DC, June 7, 1999.


                               Memorandum

     To: Honorable Ernest J. Istook, Attention: Dr. William A. 
       Duncan
     From: Henry Cohen, Legislative Attorney, American Law 
       Division.
     Subject: Constitutionality of Blocking URLs Containing 
       Obscenity and Child Pornography.
       This memorandum is furnished in response to your question 
     whether a draft bill titled the ``Child Protection Act of 
     1999'' would be constitutional if it were implemented by 
     blocking URLs known to contain obscenity or child 
     pornography. The draft bill would apply to any elementary or 
     secondary school or public library that receives federal 
     funds ``for the acquisition or operation of any computer that 
     is accessible to minors and that has access to the 
     Internet.'' It would require such schools and libraries to 
     ``install software on [any such] computer that is determined 
     [by a specified government official] to be adequately 
     designed to prevent minors from obtaining access to any 
     obscene information or child pornography using that 
     computer,'' and to ``ensure that such software is operational 
     whenever that computer is used by minors, except that such 
     software's operation may be temporarily interrupted to permit 
     a minor to have access to information that is not obscene, is 
     not child pornography, or is otherwise unprotected by the 
     Constitution under the direct supervision of an adult 
     designated by such school or library.''
       The First Amendment provides: ``Congress shall make no law 
     . . . abridging the freedom of speech, or of the press.'' The 
     First Amendment does not apply to two types of pornography: 
     obscenity and child pornography, as the Supreme Court has 
     defined them. \1\ It does, however, protect most pornography, 
     with ``pornography'' being used to mean any erotic 
     publication. The government may not, on the basis of its 
     content, restrict pornography to which the First Amendment 
     applies unless the restriction is necessary ``to promote a 
     compelling interest'' and is ``the least restrictive means to 
     further the articulated interest.'' \2\ It was on this ground 
     that a federal district court struck down a Loudoun County, 
     Virginia, public library policy that blocked access to 
     pornography on all library computers, whether accessible to 
     adults or children.\3\
---------------------------------------------------------------------------
     Footnotes appear at end of memorandum.
---------------------------------------------------------------------------
       The Loudoun County case involved a policy under which ``all 
     library computers would be equipped with site-blocking 
     software to block all sites displaying: (a) child pornography 
     and obscene material; and (b) material deemed harmful to 
     juveniles . . . To effectuate the . . . restriction, the 
     library has purchased X-Stop, commercial blocking software 
     manufactured by Log-On Data Corporation. While the method by 
     which X-Stop chooses to block sites has been kept secret by 
     its developers, . . . it is undisputed that it has blocked at 
     least some sites that do not contain any material that is 
     prohibited by the Policy.'' \4\
       The court found ``that the Policy is not narrowly tailored 
     because less restrictive means are available to further 
     defendant's interest . . .'' \5\ One of these less 
     restrictive means was that ``filtering software could be 
     installed on only some Internet terminals and minors could be 
     limited to using those terminals. Alternately, the library 
     could install filtering software that could be turned off 
     when an adult is using the terminal. While we find that all 
     of these alternatives are less restrictive than the Policy, 
     we do not find that any of them would necessarily be 
     constitutional if implemented. That question is not before 
     us.'' \6\
       X-Stop, as the court noted, blocks sites. If this means 
     that it blocks URLs that are known to display child 
     pornography and obscenity (and material deemed harmful to 
     juveniles), as opposed to blocking particular material, on 
     all sites, that constitutes child pornography or obscenity, 
     then it would be the sort of software that you ask us to 
     assume would be used to implement the draft bill. The draft 
     bill, however, would be implemented by one of the ``less 
     restrictive

[[Page E1603]]

     means'' to which the court referred--i.e., by a less 
     restrictive means than the Loudoun County library used. The 
     draft bill would be implemented by a means that would permit 
     the blocking software to be turned off when an adult is using 
     the terminal. The court in the Loudoun County case did not 
     find that this less restrictive means ``would necessarily be 
     constitutional if implemented,'' but it did not rule out the 
     possibility.
       Under the draft bill, whether computers were programmed to 
     block URLs that are known to display child pornography and 
     obscenity, or were programmed to block particular material, 
     on all sites, that constitutes child pornography or 
     obscenity, they would apparently, of necessity, block some 
     material that constitutes neither child pornography nor 
     obscenity. If, however, the former method of blocking were 
     used--i.e., the method of blocking URLs that you ask us to 
     assume would be used--then there would be a Supreme Court 
     precedent that would suggest that the draft bill would be 
     constitutional even if it resulted in the blocking of some 
     material that constitutes neither child pornography nor 
     obscenity. This precedent is Ginsberg v. New York.\7\
       In Ginsberg, the Court upheld a New York State ``harmful to 
     minors'' statute, which is similar to such statutes in many 
     states. This statute prohibited the sale to minors of 
     material that--
       (i) predominantly appeals to the prurient . . . interest of 
     minors, and (ii) is patently offensive to prevailing 
     standards in the adult community . . . with respect to what 
     is suitable material for minors, and (iii) is utterly without 
     redeeming social importance for minors.\8\
       The material that this statute prohibited being sold to 
     minors were what the Court referred to as `` `girlie' picture 
     magazines.'' \9\ It seems unlikely that such magazines were 
     all literally ``utterly without redeeming social importance 
     for minors,'' as some of the magazines that the statute 
     probably prohibited from being sold to minors probably had at 
     least one article concerning a matter of at least slight 
     social importance for minors. Yet this possible objection to 
     the statute was not raised by the Court's opinion or even by 
     the concurring or two dissenting opinions to Ginsberg.
       Furthermore, the draft bill's prohibition would be less 
     restrictive than the New York statute's, as the draft bill's 
     prohibition would be limited to obscenity and child 
     pornography. The Supreme Court has defined ``obscenity'' by 
     the Miller test, which asks:
       (a) whether the ``average person applying contemporary 
     community standards'' would find that the work, taken as a 
     whole, appeals to the prurient interest; (b) whether the work 
     depicts or describes, in a patently offensive way, sexual 
     conduct specifically defined by the applicable state law; and 
     (c) whether the work, taken as a whole, lacks serious 
     literary, artistic, political, or scientific value.\10\
       The Miller test parallels the New York statute's 
     description of material that is harmful to minors, but, in 
     two respects, it covers less material than does the New York 
     statute. First, to be obscene under the Miller test, material 
     must be prurient and patently offensive as to the community 
     as a whole, not merely as to minors. Second, to be obscene 
     under the Miller test, material must, taken as a whole, lack 
     serious value, but need not be utterly without redeeming 
     social importance for minors.
       As for child pornography, it did not exist as a legal 
     concept (i.e., as a category of speech not protected by the 
     First Amendment) when Ginsberg was decided. The Supreme 
     Court, however, has defined it so that it is immaterial 
     whether it has serious value.\11\ Therefore, the draft bill, 
     in this respect, may be viewed as covering less material than 
     laws against child pornography, as well as less material than 
     laws against obscenity. As Ginsberg upheld a statute 
     prohibiting the sale to minors of material that goes beyond 
     obscenity and child pornography, and as the draft bill would 
     be limited to those two categories, it appears that, based on 
     the Ginsberg precedent, the draft bill, if implemented by 
     blocking URLs known to contain obscenity or child 
     pornography, would be constitutional.


                               FOOTNOTES

     \1\ Miller v. California, 413 U.S. 15 (1973) (obscenity); New 
     York v. Ferber, 458 U.S. 747 (1982) (child pornography).
     \2\ Sable Communications of California v. Federal 
     Communications Commission, 492 U.S. 115, 126 (1989).
     \3\ Mainstream Loudoun v. Board of Trustees of the Loudoun 
     County Library, 24 F. Supp.2d 552 (E.D. Va. 1998). On April 
     19, 1999, the defendant decided not to appeal this decision.
     \4\ Id. at 556.
     \5\ Id. at 567.
     \6\ Id.
     \7\ 390 U.S. 629 (1968).
     \8\ Id. at 633.
     \9\ Id. at 634.
     \10\ Miller v. California, supra note 1, at 24.
     \11\ New York v. Ferber, supra note 1, at 763-764.

     

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