1996-02-03
Craig A. Johnson
There has been a whirlwind of controversy surrounding reports that
the Telecommunications Reform Act of 1996, overwhelmingly passed by
Congress on Thursday, would ban discussion of abortion and birth
control issues online.
As is the norm with this Congress, the facts are both shocking and
complex. The fact is that the bill did extend a section of the U.S.
Code, which applies to abortion-related speech, to "interactive
computer services."
Although a colloquy betwen Rep. Nita Lowey (D-NY), co-chair of the
Pro-Choice Task Force, and censorship proponent Henry Hyde, did
re-clarify legislative intent to the effect that online discussion of
abortion was not banned by the bill, the language as voted upon,
does apply to abortion-related speech.
Below is a piece which ran yesterday in The American Reporter.
Following that are the results of a superb research and reporting
job by Todd Lappin, WIRED Staff Editor.
Hopefully, these submissions will shed some light on this reckless
Congressional act.
-caj
=====================================================
* * *
+
by Craig A. Johnson
American Reporter Correspondent
Washington
2/2/96
telecom act
689/$6.89
IS ABORTION DISCUSSION BANNED ONLINE?
by Craig A. Johnson
American Reporter Correspondent
WASHINGTON--Representative Pat Schroeder (D-CO) found a seam of
"fool's gold" in the "The Telecommunications Act of 1996," passed
yesterday by overwhelming margins in both the House and Senate.
"Under the guise of criminalizing obscenity, the bill as it is now
written includes the most egregious gag rule about abortion-related
speech Congress has ever seen," Schroeder said in a press release.
In direct contrast to her fellow liberal Democrat Ed Markey
(D-MA), who said the bill was a "blueprint for the American
superhighway of the 21st century," which "uses competition as its
soul," Schroeder spoke to the black heart of the online censorship
provisions.
Calling the proceedings "a sad day," in American politics, and
demonstrably unsatisfied by Representative Henry Hyde's (R-IL) false
assurances that online discussions of abortion were constitutionally
protected and would not be impacted by the bill's censorship
provisions, Schroeder fired off a series of hardball questions which
the bill champions blithely ignored.
"What happens [when users discuss topics such as abortion]
internationally via the Internet? Does the Constitution follow [them]
through the lines? What about telemedicine? We don't have an
answer," she charged. She said that the conference committee "had the
time to clear up all the technical details, but didn't have time to
[clarify the Internet restrictions which are] such a significant part
of the economy."
The lawmakers were intent on "rushing this gag rule through ...,"
said Schroeder. "We are coming up with things that we are going to
live by for the next 50 years," she remonstrated, and asked members if
it would not have been more responsible to have worked through the
next few weeks in February to clarify such critical matters instead of
rushing home to their districts in a self-congratulatory trance.
The bill passed yesterday ignited a brief firestorm of controversy as
a result of the sleeper language in Section 507 of the bill, which
extends the current provisions of Section 1462 of title 18 of the U.S.
Criminal Code, which covers abortion-related issues to "interactive
computer services."
The measure, as printed in the conference report, shortly to be
sent to President Clinton to sign, seems to flatly contradict Hyde's
claim that online abortion discussions would not be prohibited by the
law.
Section 1462 of title 18, as amended, states: "Whoever brings into
the United States, or any place subject to the jurisdiction thereof,
or knowingly uses any express company or other common carrier, or
interactive computer service, as defined in section 230(e)2 of the
Communications Act of 1934, for carriage in interstate or foreign
commerce--
(a) any obscene, lewd, lascivious, or filthy book, pamphlet,
picture, motion-picture film, paper, letter, writing, print, or
other matter of indecent character; or (b) any obscene, lewd,
lascivious or filthy phonograph recording, electrical
transcription, or other article or thing capable of producing
sound; or (c) any drug, medicine, article, or thing designed,
adapted, or intended for producing abortion, or for any indecent
or immoral use; or any written or printed card, letter, circular,
book, pamphlet, advertisement, or notice of any kind giving
information, directly or indirectly, where, how, or of whom, or by
what means any of such mentioned articles, matters, or things may
be obtained or made; ..."
Capitol rumors have it that this blatantly unconstitutional
provision, Sec. 1462(c) above, has been or will be modified by a
"technical change," but The American Reporter could not discover any
references to it in the six pages of "technical corrections" dated
January 30, 1996 that were circulated to members yesterday before
their votes.
In the absence of this correction, Markey's "soul of competition" may
turn out to be the Internet's "heart of darkness." The ugly, brutish
facts are that our legislators approved this "early-term abortion" of
online civil rights by a margin of 414 to 16 in the House and a margin
of 91 to 5 in the Senate.
While Hyde's oral mid-course correction on the floor yesterday may be
sufficient to cover the Congressional posterior in a court case, one
cannot ignore the hard-edged message coming from this Congress: Let's
do anything in our power to drop religious right-fashioned noose on
the Internet.
Meanwhile, a spokesman forone of the nation's largest telephone
companies acknowledged the controversy but suggested it may be muted
by examination of the context of the House debate on it.
"Section 507 of the bill has a reference to a section of the
U.S.
Code that indirectly deals with abortion," said Bill McCloskey,
director of media relations for BellSouth Corp.
"One theory expressed by Congressional staffers is that House
Members who raised this point during the debate did it to get others
to say 'we didn't really mean that,' laying down a 'legislative
history,'" McCloskey said.
The full text of the bill can be read at a site maintained by
the
regional Bell telephone companies at http://www.bell.com.
-30-
(Telecommunications analyst Craig Johnson also writes for Wired.)
+
by Craig A. Johnson
American Reporter Correspondent
Washington
2/2/96
telecom act
689/$6.89
IS ABORTION DISCUSSION BANNED ONLINE?
by Craig A. Johnson
American Reporter Correspondent
WASHINGTON--Representative Pat Schroeder (D-CO) found a seam of
"fool's gold" in the "The Telecommunications Act of 1996," passed
yesterday by overwhelming margins in both the House and Senate.
"Under the guise of criminalizing obscenity, the bill as it is now
written includes the most egregious gag rule about abortion-related speech
Congress has ever seen," Schroeder said in a press release.
In direct contrast to her fellow liberal Democrat Ed Markey
(D-MA), who said the bill was a "blueprint for the American superhighway
of the 21st century," which "uses competition as its soul," Schroeder
spoke to the black heart of the online censorship provisions.
Calling the proceedings "a sad day," in American politics, and
demonstrably unsatisfied by Representative Henry Hyde's (R-IL) false
assurances that online discussions of abortion were constitutionally
protected and would not be impacted by the bill's censorship provisions,
Schroeder fired off a series of hardball questions which the bill
champions blithely ignored.
"What happens [when users discuss topics such as abortion]
internationally via the Internet? Does the Constitution follow [them]
through the lines? What about telemedicine? We don't have an answer,"
she charged. She said that the conference committee "had the time to
clear up all the technical details, but didn't have time to [clarify the
Internet restrictions which are] such a significant part of the economy."
The lawmakers were intent on "rushing this gag rule through ...,"
said Schroeder. "We are coming up with things that we are going to live by
for the next 50 years," she remonstrated, and asked members if it would
not have been more responsible to have worked through the next few weeks
in February to clarify such critical matters instead of rushing home to
their districts in a self-congratulatory trance.
The bill passed yesterday ignited a brief firestorm of controversy
as a result of the sleeper language in Section 507 of the bill, which
extends the current provisions of Section 1462 of title 18 of the U.S.
Criminal Code, which covers abortion-related issues to "interactive
computer services."
The measure, as printed in the conference report, shortly to be
sent to President Clinton to sign, seems to flatly contradict Hyde's claim
that online abortion discussions would not be prohibited by the law.
Section 1462 of title 18, as amended, states: "Whoever brings into
the United States, or any place subject to the jurisdiction thereof, or
knowingly uses any express company or other common carrier, or interactive
computer service, as defined in section 230(e)2 of the Communications Act
of 1934, for carriage in interstate or foreign commerce--
(a) any obscene, lewd, lascivious, or filthy book, pamphlet,
picture, motion-picture film, paper, letter, writing, print, or
other matter of indecent character; or
(b) any obscene, lewd, lascivious or filthy phonograph
recording, electrical transcription, or other article or thing
capable of producing sound; or
(c) any drug, medicine, article, or thing designed, adapted, or
intended for producing abortion, or for any indecent or immoral
use; or any written or printed card, letter, circular, book,
pamphlet, advertisement, or notice of any kind giving
information, directly or indirectly, where, how, or of whom, or
by what means any of such mentioned articles, matters, or things
may be obtained or made; ..."
Capitol rumors have it that this blatantly unconstitutional
provision, Sec. 1462(c) above, has been or will be modified by a
"technical change," but The American Reporter could not discover any
references to it in the six pages of "technical corrections" dated January
30, 1996 that were circulated to members yesterday before their votes.
In the absence of this correction, Markey's "soul of competition"
may turn out to be the Internet's "heart of darkness." The ugly, brutish
facts are that our legislators approved this "early-term abortion" of
online civil rights by a margin of 414 to 16 in the House and a margin of
91 to 5 in the Senate.
While Hyde's oral mid-course correction on the floor yesterday may
be sufficient to cover the Congressional posterior in a court case, one
cannot ignore the hard-edged message coming from this Congress: Let's do
anything in our power to drop religious right-fashioned noose on the
Internet.
Meanwhile, a spokesman forone of the nation's largest telephone
companies acknowledged the controversy but suggested it may be muted by
examination of the context of the House debate on it.
"Section 507 of the bill has a reference to a section of the U.S.
Code that indirectly deals with abortion," said Bill McCloskey, director
of media relations for BellSouth Corp.
"One theory expressed by Congressional staffers is that House
Members who raised this point during the debate did it to get others to
say 'we didn't really mean that,' laying down a 'legislative history,'"
McCloskey said.
The full text of the bill can be read at a site maintained by the
regional Bell telephone companies at http://www.bell.com.
-30-
(Telecommunications analyst Craig Johnson also writes for Wired.)
* * *
The American Reporter
Copyright 1995 Joe Shea, The American Reporter
All Rights Reserved
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@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
Date sent: Fri, 2 Feb 1996 15:16:51 -0800 (PST)
Sender: •••@••.••• (--Todd Lappin-->)
Subject: Research on Abortion Restrictions
Here's what I've found out about the limitations on the dissemination of
abortion materials contained within the telecom reform bill:
(The amended text of the Telecom Bill follows below, along with U.S.C. 18,
Section 1462.)
Basically we're talking about a provision that extends a section of the US
Code (The Comstock Act) prohibiting certain kinds of "obscene" speech to
include "interactive computer services."
Schroeder's office (202-225-4431) faxed me their position... they say that
the changes "will criminalize a wide array of public health information
relating to abortion, including discussion of RU-486 on the Internet."
Perhaps, but...
Sam Stratman from Rep. Hyde's office (202-225-4561) insists subsection (c)
of Section 1462 has already been invalidated by the courts (although it
remains on the books), so the extension of 1462 to include "interactive
computer services" would have no bearing on abortion-related materials.
According to the Center for Reproductive Law & Policy (212-514-5534), the
last time ANY court has ruled on subsection (c) was in 1919... long before
Roe v. Wade. They say the statute remains on the books, although it has
long gone unenforced.
Steven Lieberman from the NY State Bar clarified things even further.
Lieberman says that the prohibitions in subsection (c) against the
dissemination of information about abortion were invalidated by the Supreme
Court in Bigelow v. Virginia in 1975. (This was a case concerning the
availablity of out-of-state abortion materials in the state of Virginia.)
As for the prohibitions against any "drug, medicine, article, or thing
designed, adapted, or intended for producing abortion"... these were
invalidated by Roe v. Wade.
So, as Lieberman summarized the situation, "A prosecution under subsection
(c) of Section 1462 would be doomed from the outset." Nevertheless, from a
strictly formal standpoint, it appears that the prohibitions on abortion
information are indeed in place... even if they are toothless.
--Todd Lappin-->
WIRED Magazine
======================================================
Date sent: Fri, 2 Feb 1996 19:18:26 -0800 (PST)
Sender: •••@••.••• (--Todd Lappin-->)
Subject: Abortion Research FOLLOW-UP
A follow-up to my earlier post:
I just got off the phone with Simon Heller, Staff Attorney for the Center
for Reproductive Law & Policy (212-514-5534). Heller provided some further
detail about subsection (c) of the Comstock Act, U.S.C. 18, Section 1462.
Heller went to great lengths to point out that subsection (c) has NEVER
been ruled unconstitutional by a U.S. court. In addition, he said that
because both the House and the Senate amended the bill as part of the
telecommunications reform bill, from a legal standpoint this suggests to
the court that the Comstock provisions have gained "renewed currency" -
depite the fact that they date back to 1909.
"Until a court specifically says a law is unconstitutional, it remains in
effect," Heller said. "The constitionality of the limitations on speech
about abortion contained within Section 1462 have never been adjudicted.
For 25 years people have assumed that the law is unconstitutional. But
that idea remains untested."
One final note to make things even more confusing...
This from an article by RORY J. O'CONNOR in today's San Jose Mercury News:
Shortly after House members discovered the telco bill included language
that would have made it a crime to even discuss abortion on the Internet,
the Merc reports that, "the sponsor of the language, Rep. Henry Hyde,
R-Ill., and pro-choice Rep. Nita Lowey, D-N.Y., took the floor in a
scripted exchange to clarify that Hyde didn't intend the language to impose
such a ban."
There's a special name for these kinds of "scripted exchanges," but it
escapes me for the moment. Nevertheless, legally, such exchanges serve to
provide the courts with some insight into legislators' intent at the time
when legislation is adopted. In this case, the exhange was meant to
indicate that the revisions to the Comstock Act are *NOT* intended to serve
as a prohibition against discussion of abortion online.
It goes without saying that significan uncertainty and ambiguity surrounds
the last-minute changes to the Comstock Act that were inserted into the
telco reform bill. It also seems safe to say that the possiblity exists
for some individual or organization to be prosectuted under the revised
law. Such a prosecution probably would not pass constitutional muster (in
light of Bigelow v. Virginia and Roe v. Wade), but regardless; until the
courts rendered a final decision, the measure -- or any attempt to
prosecute under it's provisions -- would have the effect of (further)
chilling free speech on the Net.
Ugh.
Next stop... President Clinton's desk.
--Todd Lappin-->
WIRED Magazine
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