STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS (Senate - January 28, 1997)

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 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: