Press Release from Senator Pat Leahy (D-VT)
STATEMENT ON SUPREME COURT’S DECISION DECLARING UNCONSTITUTIONAL THE COMMUNICATIONS DECENCY ACT
June 26, 1997
Today, the Supreme Court unanimously struck down as unconstitutional the so-called Communications Decency Act. This law would have effectively banned "indecent" or "patently offensive" speech from the Internet, no matter its political, literary, artistic or scientific value and no matter that the speech is between consenting adults.
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."
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?"
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.
This ruling comes as a vindication for the 15 Members of the Senate who joined with me to vote against the CDA. Too many Members feared the demagogic syllogism that if they voted against a censorship law purporting to protect children, they must be in favor of exposing children to inappropriate violent or pornographic material. This is a false syllogy.
I prosecuted child abusers as State’s Attorney in Vermont and have worked my entire professional life to protect children from those who would prey on them. The 16 of us who voted against the Communications Decency Act did not vote in favor of child pornography and none among us would defend child pornographers.
On the contrary, we all want to protect our children from indecent and inappropriate materials, whether that material is broadcast over the airwaves, carried over cable lines or transmitted to our computer screens. But there are better ways to target offenders. We have a duty to ensure that the means we use to protect our children do not do more harm than good.
The Supreme Court’s ruling today is no victory for child pornography: it is a triumph for the First Amendment.
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.
Mixing government and politics with free speech issues often produces a corrosive concoction that erodes our constitutional freedoms. Even well-intentioned laws for the protection of children deserve close examination to ensure that we are not stepping over constitutional lines. The Supreme Court stated:
"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.’"
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, stating:
"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 argument on the so-called Communications Decency Act 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 stated, "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 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.
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. The United States is in the vanguard of grappling with these issues, and the world is watching closely to see how we resolve them.
What we have to offer is the capability and the temperament to show the world how the Internet can be used to its fullest. We must not succumb to short-sighted political pressures by adopting a model of censorship.
The Administration has acknowledged the importance of American leadership against efforts springing up around the globe to censor and control the content of the information accessible on the Internet in its white paper called "A Framework for Global Electronic Commerce." To support the "broadest possible free flow of information across international borders," the Administration will seek to "promote the use of industry ...self-regulation and rating systems, and technical solutions to empower parents and other users to resolve contentious access issues (e.g., children’s access, and violence)".
Vigilant defense of freedom of thought, opinion and speech will be crucially important as the Internet graduates from infancy and on to 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.