Penalties in the Communications Decency Act

by Ronald Golini

 

 

A legislative history paper submitted on July 8, 1997, at the Southern New England School of Law in partial fulfillment of the requirements of the course, Advanced Electronic Research, conducted by Professor Gordon Russell.

 

In a landmark decision issued on June 26, 1997, the United States Supreme Court Decision affirmed the lower court decision and held that the Communications Decency Act violates the First Amendment guarantee of freedom of speech. The court's opinion was written by Justice John Paul Stevens and rejects censorship of the on-line medium of communication and establishes the fundamental principles that will guide judicial consideration of the Internet for the twenty-first century.

In researching the topic of penalties in the Communications Decency Act I have produced the following legislative history. It spans a three years period of development to date, and has not stopped with the Court's decision. In keeping with the order of research suggested in our classroom presentation, I have retrieved legislative history elements 1) free through Internet access from a myriad of legal sites on the World Wide Web and 2) by a service fee from Westlaw.

Section 2 of the 1995 Act provides the following:

"(b) Penalties: Section 223 of such act (47 U.S.C 223) is amended-
by striking out '$50,000" each place it appears and inserting '$100,000'; and
by striking six months' each place it appears and inserting '2 years'."
The bill was read twice and referred to the Senate Committee on Commerce, Science and Transportation.

"(b) PENALTIES- Section 223 of such Act (47 U.S.C. 223) is amended-
(1) by striking out `$50,000' each place it appears and inserting `$100,000'; and
(2) by striking `six months' each place it appears and inserting `2 years'."
This bill was also referred to the Committee on Commerce.

"(5) ensure vigorous enforcement of criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer."5

"(3) PERMITTING ACCESS TO TRANSMIT INDECENT MATERIAL TO A MINOR- Any remote computer facility operator, electronic communications service provider, or electronic bulletin board service provider who willfully permits a person to use a remote computing service, electronic communications service, or electronic bulletin board service that is under the control of that remote computer facility operator, electronic communications service provider, or electronic bulletin board service provider, to knowingly or recklessly transmit indecent material from another remote computing service, electronic communications service, or electronic bulletin board service, to a person under 18 years of age, shall be fined not more than $10,000, imprisoned not more than 2 years, or both."

"The new law will punish with 2-year jail terms someone using one of the "seven dirty words" in a message to a minor or for sharing with a minor material containing indecent passages. . . The new law will make it a crime 'to display in a manner available to' a child any message or material 'that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs...'"

Reference is made to "penalties" in the opinion of Chief Judge Sloviter:

"As noted in Part I, Introduction, the plaintiffs' motion for a preliminary injunction is confined to portions of two provisions of the Communications Decency Act of 1996, Sec. 223(a) and Sec. 223(d), which they contend violate their First Amendment free speech and Fifth Amendment due process rights. To facilitate reference, I set forth those provisions in full. Section 223(a), the "indecency" provision, subjects to criminal penalties of imprisonment of no more than two years or a fine or both anyone who:

1) in interstate or foreign communications . . .by means of a telecommunications device knowingly --

(i) makes, creates, or solicits, and

(ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication; . . .

(2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity."

"Chief Judge Sloviter began her opinion by emphasizing that the CDA was not simply a regulatory scheme; instead, "we are dealing with criminal provisions, subjecting violators to substantial penalties."

In addition:

"Even though the 10(b) restriction was far less draconian than the criminal penalties under the CDA, it was unconstitutional because the government had not met its burden of demonstrating that mandated scrambling was the least burdensome means available to accomplish its goal of protecting minors."17

And finally:

"Every online speaker in the publicly accessible areas of cyberspace (including the World Wide Web, newsgroups, mailing lists, and chat rooms) would have to reduce his or her speech to that which is suitable only for minors in order to avoid criminal penalties under any of the provisions."18

"We can and must develop a solution for the Internet that is as powerful for the computer as the v-chip will be for the television, and that protects children in ways that are consistent with America's free speech values."

 

Notes

1 S. 314. (visited 7-7-97). http://thomas.loc.gov/cgi-bin/query/z?c104:S.314:.

2 47 U.S.C. 223. (visited 7-7-97). http://www.law.cornell.edu/uscode/47/223.shtml.

3 H.R. 1004. (visited 7-7-97). http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.1004:.

4 S. 714. (last visited 7-7-97). http://thomas.loc.gov/cgi-bin/query/z?c104:S.714:.

5 (last visited 7-7-97). http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.1978:.

6 H.R. 1555. (last visited 7-7-97). http://thomas.loc.gov/cgi-bin/query/1?c104:./temp/~c1046gFx::.

7 S. 652. (last visited 7-7-97). http://thomas.loc.gov/cgi-bin/query/z?c104:S.652.ENR:.

8 S. 892. (last visited 7-7-97). http://thomas.loc.gov/cgi-bin/query/z?c104:S.892:.

9 H.R 1798 to amend Title II of the Communications Act of 1934 (47 U.S.C. 201 et seq.). (last visited 7-7-97. http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.1978:.

10 (last visited 7-7-97). http://www.access.digex.net/~epic/final_bill.txt.

11 S. 1567. (last visited 7-7-97). http://www.epic.org/cda/repeal.html .

12 (last visited 7-7-97). http://www.epic.org/cda/s1657_statement.html

13 (last visited 7-7-97). http://www.newsbytes.com/nbcgi-bin/udt/SHOW.NB.NEW?ID=70677.

14 (last visited 7-7-97). http://www.newsbytes.com/nbcgi-bin/udt/SHOW.NB.NEW?ID=71008.

15 (last visited 7-7-97). http://www.access.digex.net/~epic/cda/cda_opinion.html.

16 Slip opinion: 521 U.S. (last visited 7-7-97). http://www.epic.org/free_speech/CDA/lawsuit /affirm_motion_10_31.html.

17 116 S.Ct. at 2390-2394 (plurality opinion); id. at 2396-97 (Kennedy & Ginsburg, JJ., concurring in part and dissenting in part). (last visited 7-7-97). http://www.epic.org/free_speech/CDA/lawsuit/ affirm_motion_10_31.html.

18 Specifically, 223(d)(1)(A) makes it a crime to "knowingly use an interactive computer service to send to a specific person or persons under 18 years of age" any material that is "patently offensive." (last visited 7-7-97). http://www.epic.org/free_speech/CDA/lawsuit/affirm_motion_10_31.html.

19 (last visited 7-7-97). http://www.epic.org/cda/clinton_cda_decision.html.

20 S. 900: (last visited 7-7-97). http://www.ciec.org/SC_appeal/970626_Feingold.html.

21 (last visited 7-7-97). http://www.cdt.org/digi_infra/970701_clinton.txt.

22 (last visited 7-7-97). http://www.iitf.nist.gov/eleccomm/ecomm.htm.

23 Ibid.