Floor Statement On Repealing The Communications Decency Act
February 9, 1996

_________________________________________________________________

Mr. LEAHY. 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.