REMARKS OF SENATOR LEAHY

FIRST AMENDMENT CONGRESS ON "CYBERRIGHTS: SURFING OUR FUTURE"

American University, Washington, D.C.

Friday, March 20, 1997

I applaud your sense of timing in holding this conference on cyberrights the same week the Supreme Court heard argument on whether we will be able to exercise our First Amendment rights on-line.

Every American holds dear the freedom guaranteed by the First Amendment. But it has special meaning for me. As the son of a Vermont printer, a publisher of a weekly newspaper, I grew up in a family which venerated freedom of speech.

Freedom of expression is the First Amendment to the Constitution for a very profound reason. If we are not free to express our thoughts, the inalienable right to govern ourselves is meaningless. The First Amendment reflects our Founders’ confidence in a government by and of the people, a government that welcomes rather than fears dissenting or offensive views.

The free flow of information is the lifeblood of our democracy. That is why I have fought so hard during my years in the Senate to defend and expand the statutory right of Americans under the Freedom of Information Act to obtain information from our government.

THE INTERNET FOSTERS DEMOCRACY

Every new mode of communication--from the printing press, radio, TV, cable, satellite, and now the Internet--has been used to spread information about what is going on in the world and keep governments accountable-- both to their own citizenry and to the judgment of other Nations.

As a way to communicate, the Internet in some ways is different only in scale from everything that predates it -- but what an enormous scale. It allows the exchange of ideas, pictures, and information faster and in more abundance than anything before. Democracy and freedom of expression move in tandem, one fueling the other. Neither survives alone. We have seen again and again that as countries move toward freer and more open societies, the rights of the press and the public to speak freely also increase.

New information technologies, such as the Internet, make accessible vast amounts of information from around the world, and the Internet is proving to be a catalyst for change in emerging democracies. Just look at what is happening in Serbia, where pro-democracy activists set up Web sites and used the Internet to disseminate uncensored news and to fight back when President Slobadan Milosevic annulled local election results last year. After months of protest, the Bosnian leadership finally capitulated and restored the election results.

Totalitarian regimes fully appreciate the power of the Internet to give their citizens unfettered access to information from around the globe. And so we see efforts springing up by governments around the world -- from China to Singapore to Burma -- to cut off those countries from the Internet by creating internal "intra-nets," to censor and control the electronic information reaching the computer screens of their citizens. Even in this country, every other new mode of communication has tested our commitment to free speech, but perhaps none will challenge our resolve the way the Internet will challenge us.

THE TEMPTATIONS OF CENSORSHIP

It is easy for us as Americans to take our First Amendment rights for granted. When the going gets rough, and the choices get tough, political pressures build to compromise those rights. Frustrated by violence, pornography and other inappropriate material available to children in multiple media, on film, on TV, in video games or on-line, politicians are sorely tempted to invoke government censorship, in the guise of government protection. Indeed, many of the censorship initiatives we see today are offered in the name of protecting our children or family values.

Congress is not yet a repository of expertise on how the Internet works. Many Members do not understand the decentralized nature of the Internet, with millions of different speakers. They think it is as easy to regulate as broadcast or cable, which have just a relatively few large corporate speakers. Many Members in Congress view the computer monitors in their offices as television sets that don’t get CNN.

Too many Members fear the demagogic syllogism that if they vote against a censorship law they must be in favor of exposing children to inappropriate violent or pornographic material. The Communications Decency Act is a stark example of what I am talking about.

I prosecuted child abusers as State’s Attorney in Vermont and have worked my entire professional life to protect children from those who would prey on them. The 16 of us who voted against the Communications Decency Act did not vote in favor of child pornography and none among us would defend child pornographers.

On the contrary, we all want to protect our children from indecent and inappropriate materials, whether that material is broadcast over the airwaves, carried over cable lines or transmitted to our computer screens. But there are better ways to target offenders. We have a duty to ensure that the means we use to protect our children do not do more harm than good.

We should be wary of efforts by the government to jump into regulating the content of any form of speech. Mixing government and politics with free speech issues often produces a corrosive concoction that erodes our constitutional freedoms. The lower court holding unconstitutional the so-called Communications Decency Act’s Internet censorship provisions noted:

"Laws regulating speech for the protection of children have no limiting principle, and a well-intentioned law restricting protected speech on the basis of content is, nonetheless, state-sponsored censorship. "

Just a few weeks ago, a Republican congressman criticized NBC’s broadcast of "Schindler’s List" because of the nudity and violence depicted in this award-winning motion picture about the horrors of the Holocaust and the heroism of Oskar Schindler. Some 65 million Americans watched this brilliant movie, but in the name of protecting children this Congressman would not have shown it. I agree with the observation of the NBC executive who said the Congressman’s attack, quote, "should send a chill through every intelligent and fair-minded person in America."

This illustrates, again, the dangers of involving the government in content regulation. Whatever the control, it is always subject to criticism and second-guessing. Whatever the control, it will never be ratcheted down strictly enough for everyone. This is too easy a subject on which politicians can demagogue and pontificate.

We can spend much time and energy in Congress trying to out-muscle each other to the most popular position on regulating the content of television programs or Internet offerings, and from all appearances, we probably will. That leaves the Supreme Court --and our Constitution--as the backstop to save us from ourselves.

I attended the Supreme Court argument on the so-called Communications Decency Act on Wednesday, and I was heartened to hear the Justices asking pointed questions about how this law would work. For example, Justice Souter asked about the criminal liability of parents under the CDA if they knowingly allow their 17-year old child to have access to on-line material deemed to be "patently offensive" or "indecent", such as birth control or AIDS information. These questions highlight how the CDA substitutes the government’s judgment for that of parents about what is appropriate for their children to access on-line.

Interestingly, several of the Justices asked about the "severability" clause in the CDA: they wanted to know how much of the statute could be stricken as unconstitutional and how much could be left standing. The Supreme Court should not do the job of Congress, and judicially re-write the CDA so that it is constitutional. This law will effectively ban "indecent" or "patently offensive" speech from the Internet, no matter its political, literary, artistic or scientific value and no matter that the speech is between consenting adults. It should be struck down.

As I watched the argument, I was reminded of the recent complaints by Muslims about the sculpture of Muhammad incorporated into the decor of the Courtroom. It was probably fortunate that the CDA argument was not televised or cybercast, because that might have provoked more complaints. The friezes directly above the Bench where the nine Justices sit contain allegorical figures symbolizing the rights of the People in the pursuit of Happiness and the protection of innocence. These figures include frontally nude children and bare-breasted women. Under the vague terms of the Communications Decency Act, the question might well be asked whether such sexually explicit artwork could be suspect if the argument were cybercast and the images were offered on-line.

I am hopeful that the Court will agree with the findings of two separate panels of federal judges that the Communications Decency Act flunks the constitutionality test. The Supreme Court should provide clear guidance that we do not forfeit our First Amendment rights when we go on-line. Only such guidance will stop wrong-headed efforts in Congress and in state legislatures to censor the Internet. Altering the protections of the First Amendment for on-line communications could cripple this new mode of communication.

INFORMATION IS NOT WISDOM

At the same time, we must remember that the Internet is only a tool -- a powerful tool -- offering any user a torrent of unfiltered information. Information contributes to wisdom, but information alone is not the same as wisdom. Wiring every classroom to the Internet is a marvelous goal. We should do it. But that should only be the beginning.

One of the continuing challenges we will face in making the best use of our burgeoning information technologies is in adding value to all that they offer. Anyone who uses the Internet knows that there is a lot of junk out there. Just ask Pierre Salinger. A student searching for background on the Holocaust may easily come across diatribes on the Internet claiming that the Holocaust never happened. In our classrooms, in our homes, in our libraries, we must teach our children to be discerning users of this powerful new tool.

We are blessed in the United States to enjoy the oldest and most effective constitutional protections of free speech anywhere. The struggle facing succeeding generations of Americans in preserving free speech liberties often is difficult, and it means standing firm in the face of sometimes fleeting but usually intense political pressures. The United States is in the vanguard of grappling with these issues, and the world is watching closely to see how we resolve them.

What we have to offer is the capability and the temperament to show the world how the Internet can be used to its fullest. We must not succumb to short-sighted political pressures and provide, instead, a model of censorship.

Vigilant defense of freedom of thought, opinion and speech will be crucially important as the Internet graduates from infancy and on to adolescence and maturity. Giving full-force to the First Amendment on-line would be a victory for the First Amendment, for American technology, and for democracy.