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  **        **      **      ***               POLICY POST
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  **        **      **      ***               December 6, 1995
  **        **      **      ***               Number 32
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  A briefing on public policy issues affecting civil liberties online
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CDT POLICY POST Number 32                      December 6, 1995

CONTENTS: (1) House Conferees Approve Sweeping Net-Censorship Proposal
              * White Proposal Approved, Then Gutted by Religious
                Conservatives
              * 2 Liberal Democrats Abandon the First Amendment
              * Senate Passage Expected Without Substantial Amendment
              * Court Challenge Likely
          (2) How To Subscribe To The CDT Policy Post Distribution List
          (3) About CDT, Contacting Us

This document may be re-distributed freely provided it remains in its
entirety. Excerpts may be re-posted by permission (editor@cdt.org)
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(1) HOUSE CONFEREES APPROVE SWEEPING NET-CENSORSHIP PROPOSAL

House Conferees Approve Sweeping Net-Censorship Proposal

By a razor thin margin, members of the House Conference Committee on
Telecommunications Reform have approved a broad proposal to censor
constitutionally protected speech on the Internet. The provisions 
adopted today would make the Internet and Interactive media the most 
heavily regulated medium in the United States, and severely threaten the 
future of free expression and democratic values in the information age.

The proposal, if agreed to by the full conference committee, would 
impose $100,000 fines and prison terms for anyone who posts any 
"indecent" material, including the "7 dirty words", the text of classic 
works of fiction such as The Catcher In The Rye, or Ulysses, artwork 
containing images of nudes, rap lyrics, in a public forum.

CDT strongly opposes the legislation agreed to by the House conferees
today. We believe this proposal threatens the very existence of the
Internet as a means for free expression, education, and political
discourse. The proposal is an unwarranted, unconstitutional intrusion by
the Federal government into the private lives of all Americans.

Indecent material is constitutionally protected speech which the Supreme
Court has ruled can only be restrictive through the "least restrictive
means". Material that has been considered "indecent" has included, among
other things:

* The so-called "7 dirty words"
* The Catcher In The Rye
* Sex and AIDS Education literature
* Photographic, sculpted, and painted images of nudes
* Rap Lyrics

Posting any of the above materials in a public forum would be illegal 
under the provision approved today. Although it is unrealistic to expect 
that Federal law enforcement has the resources to go after each and 
every violation, the threat of $100,000 fines and 2 year prison 
sentences will result in a severe chilling effect over all online 
communications.

CDT will devote all our efforts in the coming weeks to ensure that the 
full conference committee does not endorse the approach approved today 
by the House. We are also committed to fighting this battle all the way 
to the Supreme Court, if necessary, to ensure that these provisions are
overturned.

The text of the proposal will be placed on CDT's net-censorship web page
(URL below) as soon as it's available. CDT will also post a detailed
analysis of the bill soon.

WHITE PROPOSAL ADOPTED, THEN AMENDED TO INCLUDE INDECENCY STANDARD
 2 LIBERAL DEMOCRATS TIP THE SCALES IN FAVOR OF RELIGIOUS-RIGHT

At today's meeting of the House and Senate Conference Committee members,
Rep. Henry Hyde (R-IL) offered his proposal to prohibit the transmission
and display of indecent material online, and grant the FCC new authority 
to regulate the Internet. As expected, Rep. Rick White (R-WA) offered 
his alternative, based on the narrow and constitutional "harmful to 
minors" standard and provisions to encourage parental control, not 
government censorship. The House conferees then adjourned to a private 
room, away from the press and television cameras, to vote.

The Conferees voted 20 - 13 to accept the White proposal. However, Rep.
Goodlatte (R-VA) offered an amendment to substitute "indecency" for the
"harmful to minors" standard in the White proposal. The Goodlatte 
amendment was approved on a vote of 17 - 16 and the "harmful to minors" 
standard was replaced by the blatantly unconstitutional "indecency 
standard". Representative White did NOT vote for the Goodlatte 
amendment.

Amazingly, two traditionally liberal democrats, Reps. Pat Schroeder 
(D-CO) and John Conyers (D-MI) voted for the "indecency" standard! Had 
either of these members voted the other way, libraries, schools, and 
even parents who allow children to access the text of The Catcher In The 
Rye online would not now face $100,000 fines and prison sentences. 
Schroeder and Conyers should be ashamed of themselves for not standing 
up for freedom of speech and democratic values at such a critical 
moment, and for assisting the campaign of religious conservatives to 
impose their moral values on the Internet without regard for 
long-standing constitutional principals.

Representative White should be commended for his efforts to craft a
constitutional proposal which preserved freedom of speech and relied on
user empowerment over government control of online content. He deserves
great credit for his commitment to protecting the Internet and 
preserving freedom of speech, and his willingness to stand up to 
religious conservatives. Unfortunately, the critical element of his 
proposal which made it constitutional was removed over White's 
objections.

NEXT STEPS

The provision approved today by the committee is similar to the 
Exon/Coats CDA in that it relies on the "indecency" standard and 
contains defenses for online service providers. The Senate is likely to 
adopt the proposal with only minor changes. Senator Exon expressed 
optimism at today's conference committee meeting that the issue would be 
resolved soon, perhaps as early as Friday.

The Senate conferees are reviewing the language agreed to today by the
House conferees. The House and Senate must each agree on the provisions
before the final bill can be voted on. CDT will keep you informed of
developments on this issue as they occur.

FOR MORE INFORMATION

Visit CDT's net-censorship issues web page:

    http://www.cdt.org/cda.html

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(2) HOW TO SUBSCRIBE TO THE CDT POLICY POST LIST

CDT Policy Posts, which is what you have just finished reading, are the
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(3) ABOUT THE CENTER FOR DEMOCRACY AND TECHNOLOGY/CONTACTING US

The Center for Democracy and Technology is a non-profit public interest
organization based in Washington, DC. The Center's mission is to develop
and advocate public policies that advance constitutional civil liberties
and democratic values in new computer and communications technologies.

Contacting us:

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End Policy Post No. 32                                        12/6/95
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