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The Communications Decency Act: A Legislative History

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A legislative history of the Communications Decency Act of 1996 (CDA).
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THE COMMUNICATIONS DECENCY ACT






THE COMMUNICATIONS DECENCY ACT: A LEGISLATIVE
HISTORY
Timothy E. Nichols

INTRODUCTION

The stated goal of PL 104-104 is “to promote competition and
reduce regulation in order to secure lower prices and higher quality
services for American telecommunications consumers and encourage the
rapid deployment of new telecommunications technologies (PL 104-
104).” Basically, the bill, now known as the Telecommunications Act of
1996, was put into law to liberate the seven bells from the 1982 court
order that broke up American Telephone & Telegraph. During the
legislative process, this bill was referred to by one legislator as perhaps
the most deregulatory bill in history.
The Telecommunications Act of 1996 actually began in the
Senate as S 652, sponsored by Republican Senator Larry Pressler. In the
original Senate bill, provisions for the Communications Decency Act of
1996 were to be found in Title IV, not Title V. Title V was the only
provision of the entire Telecommunications Act of 1996 that was almost
in its entirety enacted vaguely and without the necessary preparation,
something which would later hurt the legislation.
Title V (The Communications Decency Act of 1996 or CDA) of
the Telecommunications Act of 1996 deals with obscenity and violence.
This title updates the Communications Act of 1934 to deal with the
changes in technology since 1934. Subtitle A deals with obscene,
harassing, and wrongful utilization of telecommunications facilities,
Subtitle B deals with violence, and Subtitle C deals with judicial review.
The most interesting part of the bill is perhaps the part that deals with the
regulation of obscene materials over the internet, the first such attempt at
any kind of internet regulation of the sort.

NICHOLS

SENATE COMMERCE, SCIENCE, AND TRANSPORTATION
COMMITTEE

What became the Communications Decency Act of 1996 was
initiated in the Senate Commerce, Science and Transportation
Committee with an amendment to the Senate bill offered by Jim Exon, a
Democrat from Nebraska, and Slade Gordon, a Republican from
Washington, to expand the prohibitions against obscene, indecent and
harassing phone calls so that they would apply to all forms of electronic
communications. The amendment was offered “to address an increasing
number of published reports of inappropriate uses of telecommunications
technologies to transmit pornography, engage children in inappropriate
adult contact, terrorize computer network users through „electronic
stalking‟, and seize personal information (Senate Rpt. 104-23, p. 59).”
The amendment met with opposition from civil libertarians
(those within Congress tried to block the amendment), computer
manufacturers, and electronic information services. To try and calm their
concerns, phone companies and computer networks that exercised no
control over the material sent via their systems were exempted from
liabilities. Of all the things found in the entire Telecommunication Act of
1996, Exon‟s amendment was the most controversial, yet the irony is that
despite these concerns most of Congress just pushed harder and harder
throughout the legislative process to enact stiffer measures to combat
indecency.

SENATE FLOOR

After the bill left the Senate Commerce, Science and
Transportation Committee, debate in the Senate extended from
Wednesday June 7, 1995, when it left the committee, to Thursday June
15, 1995, when the bill went through the Senate. On the opening day of
debate, Larry Pressler made mention of these provisions in his remarks to
open the debate. “The bill,” he said “provides defenses to companies that
merely provide transmission services, navigational tools for the Internet,
or intermediate storage for customers moving material from one location
to another. It also allows an on-line service to defend itself in court by
showing a good-faith effort to lock out adult material and to provide
warnings about adult material before it is downloaded (141 Cong Rec S
7881).” He acknowledged that the Exon amendment was controversial,
but insisted that all the amendment did was to apply to computers the

THE COMMUNICATIONS DECENCY ACT



same guidelines that already existed for telephones, and stated that the
bill “seeks to advance core values (141 Cong Rec S 7881).”
The only other mention to Title IV that occurred on the first day
of debate was from Senator Bob Kerrey, a Democrat, who in support of
the title argued, “the market does not work when it comes to obscenity
(141 Cong Rec S 7881),” and that, “in that instance the market goes out
the window (141 Cong Rec S 7881).” We hear no more mention of Title
IV until Monday June 12, 1995, when Senator Diane Feinstein, a
Democrat, addressed the chair to offer an amendment to the bill.
The amendment from Feinstein, cosponsored by Republican
Senator Trent Lott from Mississippi, sought to require cable and satellite
companies to fully scramble any sexually explicit adult programming.
According to Feinstein, the issue first came to her attention when a local
city councilman in Poway, California wrote to her complaining that,
“partially scrambled video pornography-replete with unscrambled and
sexually explicit audio-was being automatically transmitted to more than
320,000 cable television subscribers (141 Cong Rec S 8134).” In many
instances, parents did not become aware of this until their children
accidentally discovered this programming. Lott spoke forcefully in favor
of this amendment saying that he thought it was needed, and the Senate
voted 91-0 to approve the amendment (Vote 249, S 652).
The next step occurred on June 13, 1995, when much to the
expectations of outside observers, the Senate voted to require television
programs to be rated for violence and other objectionable content, and
also called for new televisions to contain special circuitry called a V-
chip. The V-chip amendment was opposed by Senators such as Larry
Pressler, and this was an issue that pitted civil libertarians up against
everyone else. As one Washington Post news reporter put it, “The V-chip
would allow parents to prevent violent programs from being seen on
their TV sets. Of course, they could turn them off, or switch to another
channel, but that's so much trouble (Shales 1995).” Civil libertarians
argued that it was the role of parents and not the government to block
certain content.
Larry Pressler attempted to kill these amendments sponsored by
Democratic Senators Joseph Lieberman and Kent Conrad, but ultimately
failed to do so, and the Senate adopted the package by a voice vote. The
Senate also unanimously adopted a non-binding proposal by Republican
leader Bob Dole and Democrat Paul Simon urging the entertainment
industry to pare back on the violence.

NICHOLS

One of the biggest opponents of the Communications Decency
Act was Democratic Senator Pat Leahy of Vermont. Leahy expressed
some of his concerns in a letter he wrote that was published in Roll Call
on March 11, 1996. “The CDA leaves in the hands of the most
aggressive prosecutor in the least tolerant community the power to set
standards for what every other internet user may say online,” he said.
“The internet censorship provisions were worth a parody two short years
ago, yet now they carry the force of law. We should all be concerned
when parody becomes reality.”
To Leahy, the Communications Decency Act was plainly
unconstitutional, and on June 14, 1995, he proposed a Justice
Department study of existing laws and technological solutions in light of
new criminal penalties. The Senate responded by rejecting this without
giving it a vote and instead voted in favor of a tougher version of Exon‟s
amendment which removed a section that shielded computer networks
and internet access services from prosecution if they exercised no
editorial control over the information available there. The following day
on June 15, 1995, the Senate voted to pass S 652.

HOUSE COMMERCE COMMITTEE

The Telecommunications Act of 1996 began in the House as HR
1555. The bill that passed through the House Commerce Committee was
much more moderate than the Senate bill and reflected the concerns that
many Congress members had about Exon‟s amendment in the Senate.
There were disputes over efforts to limit internet indecency and
television violence though. The committee bill requested that the
attorney general‟s office submit a report evaluating the enforceability of
current criminal laws governing the distribution of obscenity over the
internet, assessing the Federal, State, and local law enforcement
resources available to enforce those laws, evaluating the technical means
available to combat obscenity, and making recommendations on the
means of encouraging the development of new technologies to deal with
obscenity.
There is also a section which forbids federal agencies, states or
franchising authorities from prohibiting cable operators use of
scrambling, as the committee believes that, “it is particularly important
that cable operators are permitted to scramble their signals given the
critical need to protect consumers, especially children, from excessively
violent or sexually explicit programming” and “scrambling is the best

THE COMMUNICATIONS DECENCY ACT



way to ensure that consumers are not exposed to programming they wish
to avoid (House Rpt. 104-204 3/4, p. 11).”
In the dissenting views of the committee report, there is
complaint that HR 1555, “fails to elevate the public interest obligations
of broadcasters to meet the needs of parents and children (House Rpt.
104-204 4/4, p. 59).” The argument was made that V-Chip should be
added to the House bill. The dissent traced the history of the issue of
televised violence in Congress from the time of Senator Estes Kefauver,
to the time of Senator Thomas Dodd, all the way to the 1993 hearings on
televised violence, and pointed to studies by the American Psychological
Association, The Surgeon General, the National Institute of Mental
Health Report, the Carnegie Council on Adolescent Development, the
American Medical Association and the Centers for Disease Control.
President Bill Clinton blasted the bill for not having a version of the
Senate‟s V-chip proposal.

HOUSE FLOOR

When the bill reached the floor of the House, an amendment by
Republican Tom Bliley was approved which allowed for computer
networks such as Prodigy and CompuServe to restrict access to material
they considered obscene. The amendment also made it a crime to
transmit indecent materials to minors over the internet, resembling the
Senate bill in many ways. Finally, it made clear that laws against the
distribution, importation, and transportation of obscene materials also
applied to the internet.
As regards television content, an amendment by Ed Markey and
Dan Burton was offered that proposed that the FCC develop ratings
guidelines if broadcasters did not devise their own. Supporters pointed
out that ratings and blocking technology simplified the process of sifting
through programs for parents as television had grown from just a few
networks to thousands now carried by broadcasters and cable.
On August 1, 1995, the networks tried to head this effort off by
announcing that they had created a two million dollar fund to develop
blocking technology for parents. They also backed an alternative
amendment by representative Tom Coburn, a Republican from
Oklahoma, that merely encouraged television and video industries to
develop blocking technology.
The House voted 222-201 (Vote 633, HR 1555) in favor of
Coburn‟s amendment. There were complaints in the House by Anthony
Beilenson, David Bonior, Jim Moran and others that the V-chip

NICHOLS

legislation was not given a fair opportunity as had been promised, so Ed
Markey used a procedural tactic to force members to vote on his V-chip
proposal. Against all likelihood, his effort succeeded and the Markey-
Burton amendment was adopted in a 224-299 vote (Vote 634, HR 1555).
This up or down vote was just the type of thing that opponents of V-chip
were trying to avoid.
Another mild amendment by Representatives Christopher Cox
and Ron Wyden to combat internet indecency was approved in the
House. The amendment was designed to offer an alternative to the
extremism of Exon‟s amendment in the Senate, and was crafted to help
buttress their position as they went into conference with the Senate. It
was approved 420-4 (Vote 631, HR 1555). After these changes and
others not relating to Title V, the House voted 305-117 to approve HR
1555.

CONFERENCE COMMITTEE
In the Conference Committee, the committee basically adopted
the Senate provisions with some additional modifications. They updated
the Communications Act of 1934 by substituting the term
telecommunications
for
communications,
and
by
substituting
communication for conversation. They added a new section which made
adults communicating or making available indecent communications to
minors against the law. They provided liability protections for employers
for employee misconduct with a few exceptions, and did the same thing
for entities providing internet access and connections to or from a
facility. They clarified the term indecency by pointing to definitions as
laid out in Supreme Court cases and in so doing specifically rejected the
„harmful to minors‟ standard to be found in Ginsburg v. New York
(1968). They adopted Feinstein‟s amendment requiring the scrambling of
material upon request without having to paying a fee and requiring the
scrambling of sexually explicit material. They mandated that the
television companies come up with a ratings system for their programs,
saying that if they failed to come up with one, the government would do
so for them. Finally, they mandated that any television larger than 13
inches have special V-chip circuitry to allow for blocking technology,
regardless of where the television was manufactured, and adopted
language recommending the further development of blocking
technology. These are some of the main items that were agreed to in the
Conference Committee.


THE COMMUNICATIONS DECENCY ACT



PASSAGE OF THE CONFERENCE REPORT

On February 1, 1996, the House voted in favor of the conference
report 414-16 and the Senate voted for the report 91-5. Senator Patrick
Leahy cast one of the five dissenting votes in the Senate. President
Clinton signed the Bill into law on February 8, 1996, and it became PL
104-104, otherwise known as the Telecommunications Act of 1996.
During the signing ceremony, Clinton reflected, “We know the
Information Age will bring blessings for our people and our country. But
like most human blessings, we know the blessings will be mixed (Clinton
1996).” Clinton praised the V-chip provisions found within the bill and
those who worked to put them there.

AFTERWARD
It did not take long before the constitutionality of the
Communications Decency Act was challenged in Court. In Reno v.
American Civil Liberties Union (1997), the Supreme Court had to decide
whether Sections 223(a) and 223(d), regulating internet indecency,
violated the Constitution. The lower district court ruled that it violated
the First Amendment for being overbroad and the Fifth Amendment for
being vague. In a unanimous decision the Court sided with the American
Civil Liberties Union. Justices O‟Connor and Chief Justice Rehnquist
issued a separate opinion from the majority, concurring in part and
dissenting in part.
The majority stated that the provisions did violate the First
Amendment, and because they did it was unnecessary to determine
whether they violated the Fifth Amendment. Ironically, in their opinion,
they pointed to the fact that Title V, unlike any other part of the
Telecommunications Act of 1996, was added quickly. They ruled that the
protections for children placed too much of a free speech burden on
adults, saying that the provisions would have a chilling effect on free
speech because the stiffness of the penalties may cause some to refrain
from lawful speech because they fear it may be unlawful. They pointed
out that internet users seldom encounter sexual content by accident, and
argued that the Communications Decency Act was not narrowly tailored
to meet the needs which it set out to meet. Finally, they pointed out that
the popularity of the internet itself was testimony against the idea that
Americans were overly concerned about the issue.
In their concurrence, Justice O‟Connor and Chief Justice
Rehnquist focused on the fact that the law strayed from the zoning

NICHOLS

blueprints as laid out by the Court in previous cases, and agreed that the
law did in fact unduly restrict the free speech of adults. They argued that
while in the real world children can easily be told apart from adults, it is
much more difficult to tell them apart on the internet. They did disagree
with the majority though in arguing that insofar as the provisions placed
prohibitions on indecent speech in communications between adults and
children, they can and should be sustained.
In 2001 an art photographer named Barbara Nitke filed a lawsuit
charging that the Communications Decency Act unconstitutionally
violated her free speech rights by causing her to hesitate to post materials
online that might be deemed obscene by some. She argued that by
applying the local standards of the Miller test, as laid out in Miller v.
California (1973), to the internet, the Communications Decency Act
sweeps within its bounds a substantial amount of protected speech and
should therefore be struck down as unconstitutional. A three judge panel
in Nitke v. Gonzales (2005) decided that she had presented insufficient
evidence to support her claim. They conceded that her fear of
prosecution was well founded and that she had presented sufficient
evidence to show that she had been deterred from posting certain
photographs on the internet, but charged that she had not sufficiently
demonstrated the total amount of speech implicated by the
Communications Decency Act, the extent to which obscenity standards
vary from community to community, that material whose evaluation
varies from community to community would be found not to have artistic
or social value, and that variations in community standards are great
enough that there is a potential for inconsistent determinations. For these
reasons, they felt it was not even necessary to examine any First
Amendment encroachments. The Supreme Court declined to grant a writ
of certiorari to her case.

CONCLUSION
Today, the provisions of the Communications Decency Act that
were not struck down by the Court are still a part of public law. While
there are many opponents to this act, including the American Civil
Liberties Union, the Electronic Privacy Information Center, the Global
Internet Liberty Campaign and the National Coalition for Sexual
Freedom, it is notable that there is only one group, the Family Research
Council, that lent their support to the act. With such a profound
imbalance in public opinion, it is notable that we see exactly the opposite
trend in Congress. The vast majority of Congress members supported

THE COMMUNICATIONS DECENCY ACT



this measure and even fought for stiffer and stiffer provisions throughout
the legislative process. This is an interesting phenomenon for which we
are only left to examine the causes.

REFERENCES
Clinton, Bill. 1996. Remarks by the President in Signing Ceremony for
the Telecommunications Act Conference Report. 8 February.
Congressional Record. 1995. 104th Cong., 1st Sess., vol. 141, pt. 92.
Congressional Record. 1995. 104th Cong., 1st Sess., vol. 141, pt. 95.
Congressional Record. 1995. 104th Cong., 1st Sess., vol. 141, pt. 96.
Congressional Record. 1995. 104th Cong., 1st Sess., vol. 141, pt. 127.
Leahy, Patrick. 1996. “Congress Must Repeal Internet Censorship. Asks
Sen. Leahy, Why Wait for the Courts to Declare the
Communications Decency Act Unconstitutional?” Roll Call, 11
March.
Nitke v. Gonzales. 2005. 05 U.S. 526.
Reno v. American Civil Liberties Union. 1997. 521 U.S. 844.
Shales, Tom. 1995. “Fat Cat Broadcast Bonanza” Washington Post, 13
June.
Telecommunications Act of 1996 (PL 104-104). 1996.
U.S. Congress. Senate. Committee on Commerce, Science, and
Transportation. 1995. Telecommunications Competition and
Deregulation Act of 1995. 104th Cong., 1st Sess., S. Rept. 23.
U.S.
Congress.
House.
Committee
on
Commerce.
1995.
Communications Act of 1995. 104th Cong., 1st Sess., H. Rept. 204.
U.S.
Congress.
House.
Committee
of
Conference.
1996.
Telecommunications Act of 1996. 104th Cong., 2nd Sess., H. Rept.
458.
1996. Congressional Quarterly Almanac Volume LI 1995. Washington
D.C.: Congressional Quarterly Inc.

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