Mr. FEINGOLD. Mr. President, I am pleased to join the Senator from Vermont [Mr. Leahy] in introducing this legislation to repeal the Communications Decency Act [CDA]. I believe Congress made a grave mistake in enacting the CDA and it is time to correct it.
Congress passed the CDA without taking the time to fully examine its ability to protest children and its effect on the free speech rights of Americans. As a result, the CDA has been the subject of a court challenge since the day it was signed into law. Last June, a three-judge Federal panel granted a preliminary injunction against the Federal enforcement of key provisions of the CDA finding them unconstitutional. The Supreme Court will hear oral arguments in the first amendment challenge to the CDA on March 19, 1997.
The Communications Decency Act, enacted as part of the Telecommunications Act of 1996, subjected anyone who transmitted indecent material to minors over the Internet to criminal sanctions. The commonly accepted definition of `indecency' includes mild profanity.
I strongly opposed the CDA not only because I believe it violates our constitutionally guaranteed right to free speech, but also because I feel strongly that it fails to truly protect children from those who might seek to harm them.
The fundamental error of CDA proponents was their attempt to apply decades-old broadcasting standards to an emerging technology that defies categorization--the Internet. While the Supreme Court has allowed speech restrictions for broadcast media, it has made clear that such restrictions do not violate the first amendment only if there is a compelling Government interest in restricting speech and the restriction is applied in the least restrictive means. It is predominantly the nature of the medium which determines whether or not a criminal prohibition on speech is the least restrictive means of meeting a compelling Government interest. in the case of a radio or television, the fact that a child might simply turn on a station and hear offensive material provides a basis for allowing an arguably tighter restriction on indecent speech. Restraints upon newspapers and other print media, which are inherently noninvasive, have been very limited.
While the Net bears some similarities to both media, it is a unique and ever-changing communications medium. One can be a speaker, a publisher and a listener using the Internet. Currently, anyone with the know-how and the proper hardware and software can set up a Web page, become a de facto publisher, making information available to others at little cost to oneself or the consumer of that information. One can also post a message to an Internet newsgroup, an informal and often unmoderated information sharing forum, which can then be ready by anyone accessing that newsgroup.
The promise of the Internet is its free flow of information across vast physical distances and boundaries to anyone with access to a computer and an Internet connection. The threat of the Communications Decency Act is its undeniable ability to stifle this free-flowing speech on the Net. Mr. President,
that threat exists because Congress failed to recognize the danger of applying an overly broad indecency standard to a technology with the characteristics of the Internet.
Out of fear of prosecution, the vagueness of the indecency standard, and an inability to control the age of those who might ultimately see the information, speakers on the Net will become silent. Those offering commercial access to the Internet will be required to restrict access to speech in order to protect themselves from criminal prosecution.
Last year, a panel of three Federal judges came to the same conclusion: this statute cannot be enforced without violating the Constitution. The Court stated:
. . . the Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from government intrusion.
I believe the Federal Court came to this conclusion because the judges took the time to study and understand the characteristics of the Net before rushing to judgement--something Congress failed to do.
It is time to undo that mistake by repealing the Communications Decency Act. Not only does the CDA infringe on free speech rights of adults, it does not protect children from those who seek to harm them using the Internet, and it may actually impede the development of more sophisticated screening software in the marketplace. When Congress passed the CDA, there already existed filtering software which gave parents the ability to filter out objectionable content such as indecency, violence, adult topics etc. The passage of the CDA necessarily will reduce demand for such software products, which are effective in preventing children's access to such content. The CDA merely provides parents with a false sense of security that the Federal Government will somehow protect their children, so they no longer have to worry about the Internet themselves.
And that is the irony, Mr. President. The CDA is simply not capable of protecting children on the Internet. Much Internet content originates on foreign soil, making effective enforcement of the CDA impossible. Furthermore, the dissemination of materials which we all agree are most harmful to children--obscenity and child pornography--is already illegal on the Internet and subject to hefty criminal sanctions. We should put our law enforcement resources into aggressively prosecuting these criminal violations and recognize that the Internet is merely another tool used by those seeking to harm our children. We must prosecute the crime, not demonize the medium used by the criminal.
Mr. President, it is time to repeal the Communications Decency Act--an unconstitutional statute that fails to protect children. We owe that to all Americans and most important, we owe it to this country's children.