Speaking about abortion is “Obscene”

This just in from the how did I miss this before? department:

Cnet news reports on the recently-deceased Henry Hyde’s efforts to criminalize speech pertaining to abortion.

Make that successful efforts.

Read it for yourself. 18 U.S.C. § 1462 provides:

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) [1] 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) [1] of the Communications Act of 1934) any matter or thing the carriage or importation of which is herein made unlawful—

Shall be fined under this title or imprisoned not more than five years, or both, for the first such offense and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter. (emphasis added)

Accordingly, not only is the statute overbroad with respect to “indecency” or “filthy phonographs,” but it is mega unconstitutional with regard to abortion content. (I have my theories of how obscenity is no longer something that can be constitutionally prohibited, but under the current law of the land, the obscenity provisions remain intact).

At least one Congressman had the courage to speak out against this.

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

With regard to the abortion speech prohibitions, how can this be? The fact that it passed is a stunning example that a majority of congress violated its oath of office, as did the president. How can this law remain on the books?

Blame/credit the much-maligned “signing statement” that George W. Bush uses to rule by fiat. However, this signing statement was issued by darling of the liberals, William Jefferson Clinton.

[T]he Clinton administration decided not to enforce it on grounds that it violated the free-speech rights protected by the First Amendment. Instead of vetoing the measure, which would have been a cleaner solution, President Clinton said in a signing statement that the Hyde Abortion Web Ban was “unconstitutional.”

Attorney General Janet Reno then wrote in a letter to Vice President Al Gore: “This is to inform you that the Department of Justice will not defend the constitutionality of the abortion-related speech provision of (the law) in those cases, in light of the Department’s longstanding policy to decline to enforce the abortion-related speech prohibitions (in the related statutes) because they are unconstitutional under the First Amendment.” The Bush Justice Department has not prosecuted anyone under it either.

Of course, both Clinton and Reno were correct — it *is* unconstitutional. However, I think that signing statements are as well. The President has veto power, and should exercise it if he thinks that he must in order to execute his duty to uphold his oath of office.

“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Scribbling “unconstitutional” is not defending the Constitution, it is behaving like a Constitutional coward. Clinton did not want the political fallout that might have come from daring to veto a primarily anti-porn bill. Of course, at least Clinton’s signing statement was in support of constitutional principles – unlike Bush who uses signing statements to pick and choose which laws apply to him.

One Response to Speaking about abortion is “Obscene”

  1. […] can only be convicted of violating the obscenity laws if your material meets all of those […]

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