Revolution

Leahy Opposes CDA

U.S. Senator Patrick Leahy (D-Vermont) opposed the Communications Decency Act of 1996 from its inception. After it passed, he sponsored a bill to repeal the CDA. Following are his floor comments when introducing the bill on February 9, 1996.

Leahy's Floor Statement on Repealing the CDA

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. In fact, just last year, we passed unanimously a new law that sharply increases penalties for these people.

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.

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 two 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 hi-tech 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, Vermont 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 be 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 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.