IP: Research on Abortion Restrictions of the CDA

[Dave Farber <farber () central cis upenn edu>]

Date: Fri, 2 Feb 1996 15:16:51 -0800 (PST)
From: telstar () wired com (--Todd Lappin-->)


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 the Center for Reproductive Law & Policy (212-514-5534), the
last time ANY court has ruled on subsection (c) was in 1919... long before
Roe v. Wade.  They say the statute remains on the books, although it has
long gone unenforced.


Steven Lieberman from the NY State Bar clarified things 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
availablity 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.


So, as Lieberman summarized the situation, "A prosecution under subsection
(c) of Section 1462 would be doomed from the outset."  Nevertheless, from a
strictly formal standpoint, it appears that the prohibitions on abortion
information are indeed in place... even if they are toothless.


--Todd Lappin-->
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''.


-----------


Media Notes:


USAToday 02/01/96 - 07:37 PM ET http://www.usatoday.com/news/washdc/ncs16.htm


Telecommunications deregulation breaks down electronic walls


"At one point, the debate veered off on abortion.


Seeing a ''high-tech gag rule,'' Rep. Nita Lowey, D-N.Y., joined by Pat
Schroeder, D-Colo., and several other women lawmakers, asserted the
anti-pornography provisions would outlaw discussions about abortion over
the Internet, the global computer network.


Rep Henry Hyde, R-Ill., a leading abortion foe, assured members that
nothing in the bill suggested any restrictions on discussions about
abortion."


Well, Henry Hyde was right - nothing in the bill suggests restrictions on
abortion discussion - the restrictions are in Title 18 of the U.S. Code,
which now includes computer networks.


-----------


Thanks to the Cornell Law School Legal Information Institute
(http://www.law.cornell.edu/) and the Alliance for Competitive Communications
(http://www.bell.com/) for source text.


-Thomas Edwards