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REVISED Abortion Restriction memo

``` Date: Fri, 2 Feb 1996 20:04:24 -0800 (PST) From: telstar@wired.com (--Todd Lappin-->) To: pagre@weber.ucsd.edu 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

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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

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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:

any text, graphic, or sound that is lewd, lascivious, or filthy 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 , 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 , from such express company or other common carrier any matter or thing the carriage 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.

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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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