I would agree that the "all discussion of abortion" statement is well
within the category of mere "wingnuts" concerns.  "All" discussion is
_not_ prohibited by the application of the ancient Comstock Act to
telecommunications.
 
However, I believe far more than only the "rights without
responsibilities" wingnuts are genuinely concerned about the
constitutionality of the newest telecommunications act.
 
If a person puts _any_ stock in the concept of "chilling" free speech
could be bad, then I believe that person would be inclined to question the
wisdom of the telecommunications act.
 
The concern centers on reaching any consensus on _what_ is prohibited.
The criteria for running a foul of the law are vague.  Some (myself
included) argue void for vagueness.
 
If the boundary between "obscene" and "pornography"is not exactly clear
(i.e., appeal to prurient interest; patently beyond community standards;
and without redeeming social value) then how is that the boundary between
"pornography" and "indecent" will be as clear?  While governmental power
clearly exists over "obscene" the power diminishes rapidly as we move into
"pornography" and continues to diminish rapidly as we move into
"indecent".  Just what "general welfare" harm complements the indecency
power of the federal government to support wholesale prohibitions on
speech by content?  Are these prohibitions tailored in any way to squelch
the offensive speech and to leave free the non-offensive?  Or, is the
massive chilling of free speech needlessly crystalized by this new law?
 
If the concept of a federal government of limited powers is to have any
meaning, then _some_ acts of the People must be beyond the reach of the
Commerce Clause and the Post Roads Clause of the Constitution.
 
If the concept of rights of a free People is to have any meaning, then the
First Amendment _must_ over ride _some_ otherwise legitimate federal power.
 
If the 9th Amendment is to have any meaning, then the rights of the People
are to be read expansively, not narrowly.  It is no great leap of contract
interpretation to also conclude the 9th Amendment implies that the federal
powers are to be read narrowly, especially when buttressed by the 10th
Amendment.
 
With these truism at hand, how then is it that only "wingnuts" are
validly concerned about the constitutionality of the telecommunications act?
 
The Comstock Act as originally applied to the mails certainly must stand
on firmer constitutional ground than the same statutory prohibitions as
applied to private communications carried over privately owned and
operated telecommunication networks.
 
With no basis in known facts, but with more than a passing acquaintance
with the political process, I _assume_ that many of the "yea" votes for
the addition of the Comstock Act and the "indecency" provisions to the
telecommunications act were based on venal political motives.  I assume
that many of the "yea" votes were given _assuming_ the courts would
declare these provisions unconstitutional.  A classic case of political
having your cake and eating it too:  i.e., a yes equals a no.  Thus, all
political costs are minimized.  Those concerned --about "indecency" or the
free flow of abortion rights information-- are assuaged by the bills
passage; while those concerned about free speech take solace from the courts.
 
In one respect I believe the new law will withstand constitutional
challenge and be very detrimental.  Community standards will now be
defined by the sending and/or the receiving community for an internet
communication.  I believe this is clearly within the power of Congress,
but also clearly a very bad idea.  The "least" common demonimator will
take on new meaning.
 
Whose standard of "indecency" do you wish to be constrained to meet?
Personally, I have known too many elected officials who cared more for
quieting the angry masses (and thus getting re-elected) than I have known
who cared about preserving the freedom of those surrounded by angry
masses.  This is even more of a concern if none of those surrounded get to
vote in the "community."
 
 
Sign me,
A less than pleased constituent of Senator Exon,
Michael
 
 
9th Amendment:  "The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people."
 
10th Amendment:  "The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people."
 
 
P.S.:  I find it interesting that Bob Dole claims to desire "strict
construction" of the Constitution, and he often holds aloft the 10th
Amendment, but never the 9th Amendment.  Can you say "abortion"?
 
============================================================
=  Michael J. O'Hara, J.D., Ph.D.      [log in to unmask]  =
=  Law and Society Dept.,   Univ. Neb. at  Omaha  68182    =
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