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I was never ruined but twice: once when I lost a lawsuit, and once when I won one. -- Voltaire
Here's a summary of this issue from a letter sent to all Members of the U.S. House by Representative Pat Schroeder:
Hidden within Section 507 of the Telecommunications Act of 1996 was a provision that criminalizes speech about abortion on the Internet, by providing for up to a $250,000 fine and/or five years in prison for using interactive computer services to provide or receive information about abortion. Section 507 was intended to criminalize obscenity on the Internet, not speech about abortion. Regrettably, Section 507 extends to the Internet not just the intended obscenity ban, but a much broader law from one of the most censorious times in our history -- a time when government power was used to fine and imprison people who gave out accurate birth control information. Let's honor our oath to uphold the Constitution by deleting the ban on abortion-related speech from the obscenity law.
The infamous Comstock Act, passed in 1873 at the urging of Anthony Comstock, secretary of the Committee for the Suppression of Vice, made it a crime to send material on birth control and abortion through the mails. As a special unpaid agent of the Post Office Department, Comstock went after people like Margaret Sanger and her husband, William, because they campaigned for accurate birth control information. Margaret Sanger was arraigned on eight counts of violating the Comstock Act in 1914 for publishing newspaper articles on birth control; William Sanger was convicted in 1915 for selling a single copy of "Family Limitation," a pamphlet on birth control. As a result of Comstock's crusade, publishers were forced to censor their scientific and physiological works, druggists were punished for giving out information about contraception, and average Americans had to live with censorship of their mail, and without access to reliable information about contraception. Two years before his death in 1915, Comstock bragged that he had been responsible for the criminal conviction of enough people to fill a 61-coach passenger train.
The Comstock Act remains on our books today, in slightly modified form, at 18 U.S.C. 1462. In 1971, Congress deleted the prohibition on birth control; but the prohibition on information about abortion remains, and the maximum fine was increased in 1994 from $5,000 to $250,000 for a first offense. If you voted for the telecommunications conference report last week, you voted to extend the Comstock Act to anyone who uses any interactive computer service to provide or receive information which directly or indirectly tells where, how, of whom, or by what means an abortion may be obtained. A broader gag rule is hard to imagine. It could criminalize:
* an Internet posting of the referral directory of your local medical society, or the Yellow Pages of the telephone directory; * a telemedicine consultation between two doctors who are conferring about a patient who may need an abortion to save her life; * uploading or downloading medical journal articles about RU-486, or about safe abortion techniques.
This abortion-related gag law clearly violates our cherished First Amendment rights. While the Lowey-Hyde colloquy on the floor acknowledged that at least some abortion-related speech is protected by the First Amendment, the plain language of 1462 reaches all speech "which directly or indirectly [tells] where, how, of whom, or by what means" an abortion may be obtained. Furthermore, Chairman Hyde's full statement asserts that 1462 does criminalize commercial speech about abortion. This interpretation threatens speech relating to obtaining an abortion, as well as commercial speech relating to a legal medical procedure (see the Congressional Record excerpt on reverse). Let's zap Mr. Comstock's law criminalizing information about abortion before it becomes a computer virus on the Internet. When Congress reconvenes on February 26, I will introduce legislation which leaves the anti- obscenity provisions of 1462 in place, but repeals the provision about abortion information.
Representative Schroeder has also commented that:
"Under the guise of criminalizing obscenity, the bill as it is now written includes the most egregious gag rule about abortion-related speech Congress has ever seen. If it wasn't the intent of the author to criminalize Internet speech about abortion, and if not one Member of Congress understood that the bill covers Internet speech about abortion, then why won't the conferees take the abortion part out? To me, it isn't satisfactory to be told that it is probably unconstitutional, so it won't matter. This bill is about Telecommunications, not abortion. Congress should take this unconstitutional, obsolete language out of this bill and out of the computer age."
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