Cybertelecom Federal Internet Law & Policy An Educational Project

CDA :: Hyde Amendment

In the midst of the final debate of the House's version of the Telecommunications Act, Congressman Hyde lipped a surprise through the back door. Entitled "Clarification of Current Laws Regarding Communication of Obscene Materials Through the Use of Computers," Sec. 507 of the Telecommunications Act expands the reach of the federal obscenity laws to cover "interactive computer services. "See18 U.S.C. § 1462 as amended; 18 U.S.C. § 1465 as amended.

 The amendment of § 1462 has received substantial attention. According to 18 U.S.C. § 1462(c), it would be illegal to transmit any material over online communications concerning abortion. See Congressional Record (comments by Representative Hyde on restriction of abortion communications). On February 9, 1996, Attorney General Janet Reno informed Vice President Gore that Rep. Hyde's amendment to § 1462 is an unconstitutional violation of the First Amendment; the Department of Justice will not defend the constitutionality of the amendment. See Letter From Attorney General Janet Reno to V.P. Gore (February 9, 1996); ACLU Press Release (February 15, 1996).

142 Cong. Rec. H1145 (daily ed. February 1, 1996) (remarks of Rep. Hyde):

Concerns have been raised about the amendment to 18 U.S.C. s1462 regarding an interactive computer service. Section 1462 generally prohibits the importation or transportation of obscene matter. Subsection 1462(c) prohibits the importation or interstate carriage of "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 * * *."

We are talking about the advertisement, sale or procurement of drugs or medical instruments or devices, used to bring about an abortion. This language in no way is intended to inhibit free speech about the topic of abortion, nor in any way to limit medical or scientific discourse on the Internet. This amendment to subsection 1462(c) does not prohibit serious discussions about the moral questions surrounding abortion, the act of abortion itself, or the constitutionality of abortion. This statutory language prohibits the use of an interactive computer service for the explicit purpose of selling, procuring or facilitating the sale of drugs, medicines or other devices intended for use in producing abortions. The statutory language is confined to those commercial activities already covered in section 1462(c) of title 18 and in no way interferes with the freedom of individuals to discuss the general topic of abortion on the Internet.

142 Cong. Rec. H1145 (daily ed. February 1, 1996) (remarks of Rep. Berman)

However, I am gravely concerned that provisions in title V of the conference report, in particular, sections 502 and 507, are unconstitutional. In section 507, by extending to the internet clearly unconstitutional underlying law, we are enacting an unconstitutional abortion gag rule.