Freedom of speech threatened

By Sen. Russell D. Feingold

On October 13, the US Senate appointed several members to a House-Senate conference committee on the massive telecommunications bill.

The decisions of those conferees will have significant implications for users of interactive telecommunications technology and for the free-speech rights of the public in general.

Attached to both the House and Senate versions of this bill are provisions that set a new and, I believe, dangerous precedent for free speech in America.

I refer here to S 652, the Senate bill that includes the Communications Decency Act, sponsored primarily by Sens. Exon (D-NE) and Coats (R-IN), and HR 1555, a House bill that includes an amendment similar to the Senate language. Both amendments attempt to control communications via computer systems, including the Internet.

I count myself among those who strongly oppose government censorship of free speech, and I am likewise concerned about placing shackles on a speech medium that is still in the early stages of development compared with other media. The Exon/Coats amendment, by subjecting certain types of constitutionally protected speech on the Internet, such as indecency, to criminal sanctions, will have a chilling effect on both the free-speech rights of Americans who use computer networks for communication and on the economic and technological development of this new communications frontier.

This is an issue complex in its politics and, more importantly, in its implications both for our constitutional rights to free speech and for the infant communications technology represented in most people's minds by the Internet.

This issue presents a difficult and troubling problem for legislators in several ways:

First, many lawmakers have yet to come to grips with this technology, so they must be educated as to the nature and extent of the problem and the available remedies. The Communications Decency Act passed the Senate with little debate and no formal congressional hearing, so few senators were aware of precisely what they were approving.

I am concerned that if an Exon/Coats-type amendment is enacted, people who use this new technology, which combines the capabilities of several existing methods of communication, will actually have less protection under the law than if they chose to communicate through print, over the telephone or via radio.

For example, adults will be required to self-censor their speech so it is consistent with the indecency standards of the most conservative community and appropriate only for the youngest computer users.

Further, an enormous volume of material in print is available on the World Wide Web through the Internet. Therefore, it is certainly not outside the realm of possibility that someone could transmit the text of a novel that is already available in any bookstore or library to anyone of any age and then find federal agents on their doorstep.

Second, it is likewise difficult to explain to a lot of people, including lawmakers, that there is a significant difference between what is "obscene" and what is merely "indecent" and that the law treats these differently. The Exon/Coats amendment specifically addresses indecency. In fact, the terms are used interchangeably by those targeting obscenity and child pornography. Trying to explain that difference and trying to defend free speech opens the door to charges of coddling child pornographers, which are, of course, untrue and unfair but which are potent political poison nonetheless.

Third, there is an understandable tendency among elected officials to want to act immediately when they are presented with a problem that involves protecting children. What senators and representatives must understand is that there is a time to act and a time to show restraint. Further, they must understand that when we act, we must act with care. The federal government has enormous power to protect or to injure the basic rights of the citizens it represents. With that power comes equal responsibility to act with prudence, with forethought and with restraint. Sweeping legislation like this, passed in haste, is, to use a phrase popular with legal writers, fraught with peril.

Why does Congress believe there is a need for this? Consider the evidence to the contrary:

• Trafficking obscene materials or child pornography through interstate commerce or solicitation of minors is already a criminal act, regardless of the medium used.
• Law enforcement already has been aggressive in its pursuit of child pornographers and sexual predators who troll in cyberspace for victims. We have seen numerous press accounts of investigations and arrests of people who have turned to the Internet to pursue unlawful activities. Rather than vilifying the medium, Congress needs to recognize that computer technology is just another tool used by those who seek to victimize children.
• Further, there is software already available to filter and block the reception of materials that, for example, parents might find objectionable for viewing by their children. This was made abundantly clear during Senate Judiciary Committee hearings on this issue, chaired by Sen. Grassley (R-IA) in September.

Such technology provides parents with far more flexibility to screen out all offensive materials from which they wish to protect their children and is far less restrictive than an outright ban on protected speech.

Some of these points are addressed by a bipartisan amendment to the House bill sponsored by Reps. Cox (R-CA) and Wyden (D-OR). The Cox/Wyden amendment recognizes that First Amendment protections apply to online communications, just as they do to other communications technologies and other media by prohibiting regulation of content on the Internet by the Federal Communications Commission.

The Cox/Wyden amendment also recognizes the existence of technology to provide for parental control of children's access to unwanted material on computer networks and even promotes the development of such technologies. It also encourages online service providers to be their own police regarding control of offensive materials carried over their systems.

Having the Cox/Wyden amendment in the same bill as the Hyde amendment creates an immediate contradiction, yet some lawmakers either chose to ignore these inconsistencies or were simply ignorant of them. Perhaps they want to have it both ways--to be viewed as tough on crime and yet purport to uphold the principles of the First Amendment.

The Exon/Coats amendment passed overwhelmingly in the Senate, as did similar language in the House. But the House also passed the Cox/Wyden amendment overwhelmingly. The conference committee may adopt both, which would be unfortunate.

What price do we pay for government regulation of speech on computer networks? For one thing, certain communications--specifically, those labeled "indecent," as differentiated from those considered "obscene"--between and among adults are protected by current law. But under the pending legislation, they would be criminal acts if they were conducted via an online system and children accessed them.

For another, we must accept a chilling effect on the development of the technology itself, a large step backward. Parents are unlikely to demand screening software if Uncle Sam is willing to step in with criminal sanctions. Online providers are likely to be more cautious in their promotion of the free flow of information if they believe they will land in a federal court. Finally, individuals and entrepreneurs will not take the risk of going online with new information or products with the heavy hand of government looming.

I have urged the conference committee not to take that step and to strip the telecommunications bill of such unconstitutional and unnecessary provisions. Given the nature of politics, however, I am skeptical they will have the vision or foresight to do so.

Russell D. Feingold is a Democratic senator from Wisconsin.