ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Wednesday, February 7, 1996 TAG: 9602070012
SECTION: EDITORIAL PAGE: A-7 EDITION: METRO
SOURCE: CHARLES LEVENDOSKY
So what if it's unconstitutional?
That was the voice of Congress when its members voted overwhelmingly last week to pass the telecommunications deregulation bill. The bill has at least two provisions that violate the Constitution.
No matter. Let the judges figure it out later. Let's go home.
Didn't members of Congress take an oath to uphold the Constitution?
Apparently they don't take the oath seriously.
According to the Congressional Record, Rep. Pat Schroeder, D-Colo., discovered that there were six single-spaced pages of ``technical corrections'' to the telecom bill.
She objected that representatives only had a few hours to discuss them before a vote was to be taken.
Schroeder pleaded for more time to discuss the language of the measure. To no avail. She then pulled up a shocking sleeper in the bill.
Hidden among layers of the legislation and its corrections was a sick little subterfuge by Rep. Henry Hyde, R-Ill., a little ``now you don't see it, now you do'' slight of hand.
The telecom bill refers to a curious section of Title 18 of the U.S. Code and alters it to include interactive computer services (meaning Internet and e-mail).
That section (1462) of the U.S. Code makes it illegal to transport materials, drugs, and medicines used for abortion and includes a prohibition against books or pamphlets about abortion. It also makes it illegal to give information about where abortions are performed.
So the telecom bill, as passed, forbids the communication of all such information over Internet or by e-mail.
Oh, said Rep. Hyde, it doesn't mean that. Nothing in the bill, he said, ``should be interpreted to inhibit free speech about the topic of abortion,'' according to the Record.
Hyde elaborated: ``Our principal intent in adopting this provision was to curb the spread of obscenity and indecency ... .''
Rep. Schroeder wasn't convinced by Hyde's assurances. She called the provision a ``high-tech gag rule with criminal penalties'' - and voted against the bill.
Hyde is correct in asserting that this section of the U.S. Code also prohibits the transportation of obscene and indecent books, films, and records. But the telecom bill already has a provision outlawing such material over Internet. So why the redundancy?
Does it matter that Rep. Hyde is a staunch anti-abortionist?
Planned Parenthood's legal experts say that the abortion references in the U.S. Code are ``dead-letter'' law. It remains on the books, but it is not enforced.
And it is unconstitutional - the U.S. Supreme Court in Bigelow v. Virginia (1975) struck down a similar state law saying that it infringed upon constitutionally protected speech.
Yet Hyde has included it in the new telecom bill. Either it will be ignored by federal law enforcement officials, or a suit must be brought to settle this matter. At what cost to the public?
This is the same old Comstockery law that was used against early feminists and Margaret Sanger when she tried to send out information on contraception and abortion.
Congress reaffirmed this dead-letter law - as a bow to the Christian Coalition, or as a threat? The courts will certainly be forced to deal with it.
If members of Congress don't want the judiciary to legislate, then they ought to do it right, so the judiciary doesn't have to do it for them.
The second provision of the telecom bill that is blatantly unconstitutional is the inclusion of the vague ``indecency'' standard that will make it illegal to send or post ``indecent'' material on Internet or e-mail.
Those who violate this provision risk jail sentences and heavy fines.
The U.S. Supreme Court first dealt with an indecency standard in the George Carlin ``seven dirty words case'' - officially known as Federal Communications Commission v. Pacifica Foundation (1978).
Pacifica radio played a tape of one of George Carlin's nightclub routines that makes fun of our discomfort with words that describe sexual and excremental functions.
The FCC said it had the right to declare the transmission indecent and a violation of FCC regulations.
The Supreme Court agreed - but ONLY for broadcast media because they ``extend into the privacy of the home.''
The Internet and other online media are not broadcast media.
The Internet is an interactive service. You ask for what you get. You, the viewer, are responsible for what you pull onto your screen and into the privacy of your home.
And why is that the government's business, anyway? That's the real question.
Interestingly, the high court never legally defined ``indecency'' and for many years the FCC used Carlin's seven words are the parameter of indecency.
When abridging the freedom of speech, the government must have a compelling interest in doing so. It does - to protect children from pornography and sexual matters that parents feel are too adult for them.
However, First Amendment jurisprudence requires much more. The government then must achieve that compelling interest in the least restrictive manner.
The telecom bill does not go this extra step. That is why this provision of the bill is unconstitutional.
The least restrictive manner would be to force computer companies to supply buyers with blocking or filtering technology that can be used to screens out indecent material - like airbags on the Information Highway to protect children from an impact with cyberporn.
Now not only private citizens have to be concerned about what they send by e-mail to the people they love, but universities and libraries must be concerned about what information they make available to their students and patrons.
A sergeant in the U.S. Army stationed in Bosnia e-mails his wife back in the states about his fears, his loneliness and his desire to be in her arms. Will he risk court martial for violating the ``decency standard''?
Will the Federal Decency Cops come after university officials for providing information about date rape on their computer networks? What about information about unwanted pregnancies or reproductive-health options?
Will the Federal Decency Cops jail librarians if they post classics that re in the public domain on their Web sites - classics like Lysistrata, Canterbury Tales or the Decameron?
These are the justified fears of the American public.
The disregard Congress has shown to the constitutionality of provisions of the telecom bill will cost the American public and the federal courts an incredible number of hours and hundreds of thousands of dollars to rectify.
We pay members of Congress to legislate. Perhaps if they were forced to pay out of their pockets when the public has to clean up after their so-called law making, they would take more time to do it right the first time.
Charles Levendosky is editorial page editor for the Casper Star-Tribune - New York Times News Service
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