Written by Deborah Hirshberg
A complaint challenging the Telecommunications Act, was filed in February 1996 in the U.S. District Court, Eastern District of New York, by plaintiffs Alex Sanger, Planned Parenthood of New York City, Rhonda Copelon, Adam Guasch-Melendez, California Abortion and Reproductive Rights Action League (North), National Abortion and Reproductive Rights Action League, Fund for the Feminist Majority, Medical Students for Choice, and the National Abortion Federation. (Civ. No. 96-0526 (E.D.N.Y.). ) As with the other lawsuits filed in the federal courts challenging the Telecommunications Act of 1996, this case challenges it too, but on different grounds. This case challenges section 507 of the Act in that it alleges that the Act bans the sending of materials or information about abortion over the Internet.
Section 507 of the Act amends Title 18 of the United States Code, Section 1462. Section 507 amends the statute to include the sending of information over the Internet relating to abortion as unlawful. The statute, as written before the signing of the Act, clearly indicated that sending abortion information or devices through the U.S. Mail will not be tolerated. Below I cite the relevant portions of the statute in question in order to make a point regarding the specifics of the statute. "...Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and...Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and...Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and...Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and... Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose... Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier."
Considering that a woman's right to obtain an abortion has been legal since the 1973 decision of the U.S. Supreme Court in Roe v. Wade, it seems rather odd that such a statute, or the abortion specific wording hasn't been repealed. To add insult to injury, the references to the sending of abortion information over the Internet as criminal was reconfirmed with the signing of the Telecommunications Act of 1996. However, after the Sanger lawsuit was filed, Attorney General Janet Reno filed a statement indicating that the Department of Justice would not seek to prosecute anyone for sending abortion related information over the Internet. Attorney General Reno indicated in her statement, which was also sent to Vice President Gore as President of the Senate, that "The Department of Justice had advised me of its longstanding policy that this and related abortion provisions in current law are unconstitutional and will not be enforced because they violate the First Amendment." Thus, the Department of Justice will not enforce the provisions of 18 USC 1462 as it relates to references to abortion.
How did the Telecommunications Act become law when there is a provision that refers to a statute that the Department of Justice has deemed unenforceable and unconstitutional? The answer is, that you just write a new law with wording that is not objectionable that refers to a statute that is objectionable and don't show the objectionable statute in question to the President. Case in point, the Telecommunications Act of 1996 and 18 USC 1462. I can't say whether or not the President was aware of the provisions or language of 18 USC 1462, but it seems that he should insist that our Congressional leaders revise 18 USC 1462 to eliminate that portion of the statute that Attorney General Reno and previous Attorneys General have deemed unenforceable and unconstitutional. What purpose does it serve to have a statute on the books that is not going to be enforced? Or one that could or will result in selective enforcement and selective interpretation? Or one that is deemed to be unconstitutional? On the other hand, what else is new? I guess this is just another example of the fact that the chicken is running around with his head cut off. Take a look at these related sites:
The number of lawsuits filed to challenge the Telecommunications Act and Communications Decency Act (CDA) of 1996 is beginning to remind me of the number of hurricanes that threatened the Atlantic coast during the summer of 1995. Yes, yet another lawsuit has been filed in the United States District Court in the Eastern District of Pennsylvania attacking the CDA. The plaintiffs in this new case include: American Library Association, Inc., America Online, Inc., American Booksellers Association, Inc., American Booksellers Foundation For Free Expression, American Society of Newspaper Editors, Apple Computer, Inc., Association of American Publishers, Inc., Association of Publishers, Editors and Writers, Citizens Internet Empowerment Coalition, Commercial Internet Exchange Association, CompuServe, Incorporated, Families Against Internet Censorship, Freedom to Read Foundation, Inc., Hotwired Ventures, LLC, Interactive Services Association, Microsoft Corporation, Microsoft Network, Netcom On-Line Communications Service, Newspaper Association of America, Opnet, Inc., Prodigy Services Company, Society of Professional Journalists, and WIRED Ventures, LTD.
The twenty three plaintiffs in this case have filed a complaint with the court that is very detailed in its prayer to the court that the Communications Decency Act of 1996, and more specifically, that Sections 502(1) and (2) of the Communications Decency Act of 1996, 47 U.S.C. 167; 223(a)(1)(B), 223(a)(2), and 223(d), be declared unconstitutional. The complaint asks the court to preliminarily and permanently enjoin Attorney General Janet Reno and the Department of Justice from enforcing the Act. Like the complaint filed by the American Civil Liberties Union in the same court, the above suit charges that the Act's terminology is vague in that it criminalizes language that is "indecent" or "patently offensive as measured by contemporary community standards," an extremely subjective measure.
Another point made in the complaint is that the Internet is a communication medium that is significantly different than that of newspapers, radio or television in that in the "...new medium individuals receive only the communications they affirmatively request." The latter forms of communication provides the information to the user whether the information is requested or not.
Another argument made to defeat the Act in the new complaint is that Internet users outside of the United States can transmit "indecent" or "patently offensive" materials which can be retrieved by anyone worldwide, including American citizens. Yet, those who are outside of American borders would not be subject to the law even though American citizens would still have access to those materials provided by others outside of American borders. Finally, another argument made is that "the vagueness" of the provisions of the Act "invites arbitrary enforcement."
By the time you have read this article, undoubtedly, the case filed by the American Library Association, et al, and the case filed by the ACLU, will be consolidated, and heard, in effect, as one case. On February 23, in the case filed by the ACLU, the government has filed a stipulation, or agreement, that it will not seek to prosecute under the "indecency" and "patently offensive" provisions of the CDA until such time as the lawsuit is resolved. However, in this agreement they have reserved the right to investigate and prosecute under these provisions retroactively should the Act be declared constitutional.
The two complaints are similar in scope, however, the complaint filed by the American Library Association, et al, details the emergence of the Internet and the significant role the Internet will undoubtedly play in the future of communication and information access worldwide. There is a significant difference, however, in the two. The Internet site of the Citizens Internet Empowerment Coalition, one of the plaintiffs in the American Library Association case, has itself proven the significant difference in the abilities of this new medium of communication over that of radio, television or print media. The site enables you, the general public, to join in on the lawsuit, until March 15, if you complete an on-line form giving your name, snail mail address, and email address!
So there you have it. Within four weeks of the signing of the Telecommunications Act and the Communications Decency Act, at least two lawsuits have been filed challenging the constitutionality of the Act. Most likely, these two cases are only the beginning of the challenges that will be brought against similar measures passed by the American Congress in the future. The information highway is still in its infancy. The international ramifications of the information highway have yet to be realized, or challenged. What will the future hold? Only time will tell. But as I have encouraged you in previous articles, now is the time to become involved.
No sooner had the President signed the Telecommunications Act of 1996, which includes the Communications Decency Act, a law suit to challenge its constitutionality was filed. The suit was filed in the U.S. District Court, Eastern District of Pennsylvania, case number: 96-963-civil-RLB, by the following parties: American Civil Liberties Union; Human Rights Watch, Electronic Privacy Information Center; Electronic Frontier Foundation; Journalism Education Association; Computer Professionals For Social Responsibility; National Writers Union; Clarinet Communication Corporation; Institute For Global Communications; Stop Prisoner Rape; AIDS Education Global Information System; Bibliobytes; Queer Resources Directory; Critical Path AIDS Project, Inc.; Wildcat Press, Inc.; Declan McCullagh dba Justice on Campus; Brock Meeks dba Cyberwire Dispatch; John Troyer dba The Safer Sex Page; Jonathan Wallace dba The Ethical Spectacle; and Planned Parenthood Federation of America, Inc.
The suit seeks declaratory and injunctive relief of the Act. It claims that in as much as the Act is vague, and the parties cannot define the terms "indecent" and "patently offensive," the Act invites law enforcement and prosecutorial agencies to bring charges arbitrarily. It is also argued that the subject matter that the Act seeks to censor from the Internet is widely available in printed form to persons under the age of 18. The complaint prays that the court find that "47 U.S.C. § §223(a)(1)(B) and (a)(2) and 223(d) and 18 U.S.C. §1462(c) violate the First, Fourth, Fifth, and Ninth Amendments to the U.S. Constitution" and requests the court to enjoin their enforcement.
On February 15, 1996, U.S. District Judge Ronald L. Buckwalter, Jr. partially granted the plaintiff's request to temporarily enjoin the U.S. Attorney from enforcing the provisions of 47 U.S.C. 223 (a)(1)(B)(ii) as it applies to the word "indecent", but denied the request as to the word "obscene" and the remainder of the motion in all other respects. The court further directed that the order shall remain in force until the hearing and determination by a three judge panel of the district court on the plaintiff's application for a preliminary injunction.
The court agreed with the plaintiffs that "indecent" was too vague a word to be included in a statute that set out criminal charges. Yet, by denying the other issues raised in court documents, much of the Communications Decency Act stands. Until the application for preliminary injunction hearing is held (which by statute must be held within ten days), the plaintiffs aren't entitled to an appeal. Therefore, we must wait until then to determine whether the court permanently enjoins the government from enforcing the provisions with regards to "indecent" materials. Once the preliminary injunction hearing has been held and an order issued, the plaintiffs may seek an appeal of the denial of the remainder of the issues raised in the complaint if the three judge court also denies same. In the meantime, the denial allows the government to seek criminal charges on anyone who distributes information that is "patently obscene" or who distributes abortion related material over the internet.
The challenge doesn't stop there, however. Democratic Senators Patrick Leahy and Russel Feingold have submitted Senate Bill 1567 which seeks to repeal the Communications Decency Act immediately rather than wait for decisions by the courts.
The case filed by the ACLU and the other plaintiffs will surely be the test case for the challenge of censorship of the Internet. Yet, because the court, thus far, has left open other avenues for the government to pursue, some unlucky sole will probably be charged with some aspect of the Act and be the true test of just how far the government seeks to go in its quest to regulate the Internet. The ACLU, in its February 15th press release warned us to watch ourselves and our language in the interim. Hmmm...I wonder who might be offended by me calling them "dummy"?
With less than four years until the year 2000; which by the way, marks the beginning of the end of the 20th century, Senate Bill 652 was signed by the President. February 8, 1996 marks the date that the race into the 21st century officially began. Once Senate Bill 652, also known as the Telecommunications Act of 1996, was signed by President Clinton, protests began to permeate throughout the United States and in cyberspace. What is all the hoopla about?
Let's take a look at some portions of the Act. The Act begins rather simply:
"An Act to promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies. "
The opening paragraph, anyway, doesn't sound too repulsive to me. After all, competition is what America is all about. The reinvention of government has been what all of us have been pushing for and this Act even includes a statement about reducing regulation. So what's the big deal? Am I missing something?
Let's take a look at some of the basics of the Act. The Act contains Titles I-VII and amends, and in some cases repeals, portions of the Communications Act of 1934. Title I addresses Telecommunication Services; Title II addresses Broadcast Services; Title III addresses Cable Services; Title IV addresses Regulatory Reform; and, oh, here it is; Title V addresses Obscenity and Violence. (It must be Title V that is causing much of the hoopla!) Title VI addresses the effects of this Act on other laws and Title VII covers miscellaneous provisions of the Act. So there you have it. Title V must be what is causing most of the controversy.
Any discussion of obscenity and violence in America instigates a wide variety of emotions from all ranks. Some are of the opinion that the First Amendment of the United States Constitution prohibits any regulation of speech. As such, some argue that Title V of the Telecommunications Act violates the First Amendment by prohibiting free speech, even though the Act specifically refers to obscenity and violence. Of course, one might argue that what is obscene or violent cannot be categorically determined. In fact, as I'm sure you've heard, there is that old one liner: "I know pornography when I see it." Some of us might think the swimsuit edition of Sports Illustrated contains pornographic, or at least obscene, material. For that matter, some might argue that the wildlife documentaries of animal mating shown on Public Broadcast Television is pornographic or obscene. That's what makes an Act, such as the Communications Decency Act, so controversial. When Congress and the President attempt to appease the citizens they represent, they do so by compromise and allow the courts and juries to be the final arbiter. It's no wonder the courts are overwhelmed.
Because our representatives have been given the authority by the Constitution to regulate the laws of this land, they walk a thin line between the attempt to ensure the safety, health and welfare of the citizenry and the boundaries of this attempt dictated to them by the Constitution. The real dilemma for our representatives is to attempt to appease a citizenry with such a wide variety of opinions. The Communications Decency Act of 1996 is an example of this.
The Act, on the one hand, is open ended and allows for interpretation by the courts. For example, it includes the following statement:
"(a) Whoever-- (1) in interstate or foreign communications-- (A) by means of a telecommunications device knowingly-- (i) makes, creates, or solicits, and (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person..."I can certainly see the above leading to lawsuits to determine what is obscene, lewd, etc. The Act goes on, however, to state:
"(B) by means of a telecommunications device knowingly-- (i) makes, creates, or solicits, and (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication..."
Clearly, then, this Act, at least up to this point, focuses on the communication of this type of information to minors. Where the Communication Decency Act has been augmented, however, is where the latest controversy begins. The Act adds new subsections to Title 47, Section 223 of the United States Code, by including subsections which address the transmission of any of the above through a "telecommunication device" and/or any "interactive computer service." It states in part:
(d) Whoever-- (1) in interstate or foreign communications knowingly-- (A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication..."Now, that is what I call vague! You don't have to be a rocket scientist to know that the statement in section (B); "...to display in a manner available to a person under 18..." doesn't mean much when it comes to computers. Unless a procedure is used by the sender or receiver to block everything that could be categorized as obscene or violent, almost anything sent over an "interactive service," such as America On Line, or Compuserve, has the potential of falling into this category. If I call someone a "dummy" and he or she finds this offensive, I'm in trouble.
The Act goes on to amend Title II of the Communications Act of 1934 with statements to the effect that the government will do what is necessary to promote the development of software that can be used to block material that can be obscene or violent and remove any disincentives for their development. The Act attempts to ensure us that the government wants to promote and encourage the development of the internet; and will do so with little intervention or regulation. The only problem I see with this reference is that when a law is written that is subject to interpretation, if the "wrong" people, (and, of course, that's subject to interpretation), get into office, I may not even be able to email them that I think they are a "dummy."
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