[PEN-L:2724] REVISED Abortion Restriction memo (fwd)

[D Shniad <shniad@xxxxxx>]

Forwarded message:
Date: Fri, 2 Feb 1996 20:11:56 -0800 (PST)
From: Phil Agre <pagre@xxxxxxxxxxxxxx>
To: rre@xxxxxxxxxxxxxx
Subject: REVISED Abortion Restriction memo
Reply-To: rre-maintainers@xxxxxxxxxxxxxx
X-URL: http://communication.ucsd.edu/pagre/rre.html

Date: Fri, 2 Feb 1996 20:04:24 -0800 (PST)
From: telstar@xxxxxxxxx (--Todd Lappin-->)
To: pagre@xxxxxxxxxxxxxx
Subject: REVISED Abortion Restriction memo


Phil,

Lots more info came in after the last memo went out... A revised memo
follows.  Redistribute or delete as you see fit.

--Todd Lappin-->
WIRED Magazine

---------------------


Here's what I've found out about the limitations on the dissemination of
abortion materials contained within the telecom reform bill:

(The amended text of the Telecom Bill follows below, along with U.S.C. 18,
Section 1462.)

Basically we're talking about a provision that extends a section of the US
Code (The Comstock Act) prohibiting certain kinds of "obscene" speech to
include "interactive computer services."

Schroeder's office (202-225-4431) faxed me their position... they say that
the changes "will criminalize a wide array of public health information
relating to abortion, including discussion of RU-486 on the Internet."
Perhaps, but...

Sam Stratman from Rep. Hyde's office (202-225-4561) insists subsection (c)
of Section 1462 has already been invalidated by the courts (although it
remains on the books), so the extension of 1462 to include "interactive
computer services" would have no bearing on abortion-related materials.

According to Simon Heller, Staff Attorney for the Center for Reproductive
Law & Policy (212-514-5534), subsection (c) has NEVER been ruled
unconstitutional by a U.S. court.  In addition, he said that because both
the House and the Senate amended the bill as part of the telecommunications
reform bill, from a legal standpoint this suggests to the court that the
Comstock provisions have gained "renewed currency" - despite the fact that
they date back to 1909.  The law is still on the books.

"Until a court specifically says a law is unconstitutional, it remains in
effect," Heller said.  "The constitutionality of the limitations on speech
about abortion contained within Section 1462 have never been adjudicated.
For 25 years people have assumed that the law is unconstitutional.  But
that idea remains untested."

Steven Lieberman from the NY State Bar outlined the situation even further.
Lieberman says that the prohibitions in subsection (c) against the
dissemination of information about abortion were invalidated by the Supreme
Court in Bigelow v. Virginia in 1975. (This was a case concerning the
availability of out-of-state abortion materials in the state of Virginia.)
As for the prohibitions against any "drug, medicine, article, or thing
designed, adapted, or intended for producing abortion"... these were
invalidated by Roe v. Wade.  As Lieberman summarized the situation, "A
prosecution under subsection (c) of Section 1462 would be doomed from the
outset."

One final note to make things even more confusing...

This from an article by Rory J. O'Connor in today's San Jose Mercury News:

Shortly after House members discovered the telco bill included language
that  would have made it a crime to even discuss abortion on the Internet,
the Merc reports that, "the sponsor of the language, Rep. Henry Hyde,
R-Ill., and pro-choice Rep. Nita Lowey, D-N.Y., took the floor in a
scripted exchange to clarify that Hyde didn't intend the language to impose
such a ban."

These kinds of "scripted exchanges"  are called "colloquies," and they
serve to provide the courts with some insight into legislators' intent at
the time when legislation was adopted.  In this case, the exchange was
meant to indicate that the revisions to the Comstock Act are *NOT* intended
to serve as a prohibition against discussion of abortion online.

It goes without saying that significant uncertainty and ambiguity surrounds
the last-minute changes to the Comstock Act that were inserted into the
telco reform bill.  It also seems safe to say that the possibility exists
for some individual or organization to be prosecuted under the revised law.
Such a prosecution probably would not pass constitutional muster (in light
of Bigelow v. Virginia and Roe v. Wade), but regardless; until the courts
rendered a final decision, the measure  -- or any attempt to prosecute
under it's provisions -- would have the effect of (further) chilling free
speech on the Net.

Ugh.

Next stop... President Clinton's desk.

--Todd Lappin-->
Section Editor
WIRED Magazine

------------------------------------------------------------------------
Sec. 507 of the Telecom Bill Ammends Section 1462 of title 18 of the U.S.
Code (Chapter 71), in ways which may make sending the following over the
Internet illegal:

 o any text, graphic, or sound that is lewd, lascivious, or filthy

 o any information telling about how to obtain or make abortions and
   drugs, or obtaining or making anything that is for indecent or immoral
   use

Here is Section 1462 as Ammended:

(Telecom bill chnages in "<" and ">"):

Section 1462. Importation or transportation of obscene matters

Whoever brings into the United States, or any place subject to the
jurisdiction thereof, or knowingly uses any express company or other common
carrier <or interactive computer service (as defined in section 230(e)(2) of
the Communications Act of 1934)>, for carriage in interstate or foreign
commerce -

        (a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture,
motion-picture film, paper, letter, writing, print, or other matter of
indecent character; or
        (b) any obscene, lewd, lascivious, or filthy phonograph recording,
electrical transcription, or other article or thing capable of producing
sound; or
        (c) any drug, medicine, article, or thing designed, adapted, or
intended for producing abortion, or for any indecent or immoral use; or any
written or printed card, letter, circular, book, pamphlet, advertisement, or
notice of any kind giving information, directly or indirectly, where, how, or
of whom, or by what means any of such mentioned articles, matters, or things
may be obtained or made; or Whoever knowingly takes <or receives>, from such
express company or other common carrier <or interactive computer service (as
defined in section 230(e)(2) of the Communications Act of 1934)> any matter
or thing the carriage <or importation> of which is herein made unlawful -

       Shall be fined not more than $5,000 or imprisoned not more than five
years, or both, for the first such offense and shall be fined not more than
$10,000 or imprisoned not more than ten years, or both, for each such offense
thereafter.

-----------

Here is the text which addes the interactive computer service part
in the Telecom Bill:

SEC. 507. CLARIFICATION OF CURRENT LAWS REGARDING COMMUNICATION
OF OBSCENE MATERIALS THROUGH THE USE OF COMPUTERS.
     (a) Importation or Transportation.--Section 1462 of title 18, United
States Code, is amended--

          (1) in the first undesignated paragraph, by inserting ``or
interactive computer service (as defined in section 230(e)(2) of the
Communications Act of 1934)'' after ``carrier''; and

          (2)  in the second undesignated paragraph--
               (A) by inserting ``or receives,'' after ``takes'';
               (B) by inserting ``or interactive computer service (as defined
in section 230(e)(2) of the Communications Act of 1934)'' after ``common
carrier''; and
               (C) by inserting ``or importation'' after ``carriage''.

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