June 7, 1995 CONGRESSIONAL RECORD — SENATE S7921

‘‘(iii) which is—

‘‘(I) not loaded; and

‘‘(II) in a locked container, or a locked

firearms rack which is on a motor vehicle;

‘‘(iv) by an individual for use in a program

approved by a school in the school zone;

‘‘(v) by an individual in accordance with a

contract entered into between a school in

the school zone and the individual or an employer of the individual;

‘‘(vi) by a law enforcement officer acting in

his or her official capacity; or

‘‘(vii) that is unloaded and is possessed by

an individual while traversing school premises for the purpose of gaining access to public or private lands open to hunting, if the

entry on school premises is authorized by

school authorities.

‘‘(3)(A) Except as provided in subparagraph

(B), it shall be unlawful for any person,

knowingly or with reckless disregard for the

safety of another, to discharge or attempt to

discharge a firearm that has moved in or

that otherwise affects interstate or foreign

commerce at a place that the person knows

is a school zone.

‘‘(B) Subparagraph (A) shall not apply to

the discharge of a firearm—

‘‘(i) on private property not part of school

grounds;

‘‘(ii) as part of a program approved by a

school in the school zone, by an individual

who is participating in the program;

‘‘(iii) by an individual in accordance with a

contract entered into between a school in a

school zone and the individual or an employer of the individual; or

‘‘(iv) by a law enforcement officer acting in

his or her official capacity.

‘‘(4) Nothing in this subsection shall be

construed as preempting or preventing a

State or local government from enacting a

statute establishing gun free school zones as

provided in this subsection.’’.

Mr. LAUTENBERG. Mr. President, I

rise today as an original cosponsor of

the Gun-Free Schools Act of 1995.

This bill makes it a criminal offense

to knowingly bring a gun or fire a gun

within 1,000 feet of a school. The penalty for violating the law would be up

to 5 years in prison or a fine of $5,000.

Mr. President, I believe that this bill

is critical to protect the sanctity of

our schools and the safety of our students.

In 1993, the Centers for Disease Control found that 1 in 12 students carried

a gun to school within a 30-day period.

Each day, an estimated 135,000 pack a

gun with their books on their way to

school.

At a time when guns are becoming

more and more prevalent on neighborhood streets, we cannot simply stand

by and allow our playgrounds to become battlegrounds. We cannot expect

our students to thrive in an atmosphere where they must fear for their

lives and for their safety.

In 1990, Congress passed the original

Gun Free Schools Act with overwhelming bipartisan support. As many of you

know, a sharply divided Supreme Court

recently invalidated that bill, saying

that it exceeded congressional power.

I personally disagreed with the Supreme Court decision, and signed an

amicus brief supporting its validity.

But that is not the issue before us

today. Today, the issue is the safety of

our children.

The 1995 act ensures the constitutionality of the Gun Free Schools Act

by requiring the prosecutor to prove as

part of each prosecution that the gun

moved in, or affected, interstate commerce. That provision will place only a

small burden on prosecutors and will

ensure our power to keep America’s

schools safe.

Mr. President, this bill has the support of the law enforcement and education communities.

It has been endorsed by the National

Education Association, the American

Association of School Administrators,

the National School Boards Association, the National Association of Elementary School Principals, and the

American Academy of Pediatrics.

Certainly this bill is not a panacea,

but it is a worthwhile attempt to keep

our children away from the dangers of

guns and violence.

Mr. President, the National Rifle Association likes to say that guns don’t

kill; people do. But the gun statistics

I’ve seen belie their contentions.

Just consider these numbers.

In 1992, handguns killed 33 people in

Great Britain, 36 in Sweden, 97 in Switzerland, 60 in Japan, 13 in Australia, 128

in Canada, and 13,220 in the United

States.

The problem, Mr. President, isn’t

that we have more people. It’s that we

have more guns.

We need to fight back the wave of

gun violence that’s overtaking our

streets and neighborhoods once and for

all. I urge my colleagues on both sides

of the aisle to support this worthy bill

and to help protect our children and

our teachers from the dangers of violence.

By Mrs. BOXER:

S. 891. A bill to require the Secretary

of the Army to convey certain real

property at Fort Ord, CA, to the city of

Seaside, CA, in order to foster the economic development of the city, which

has been adversely impacted by the

closure of Fort Ord; to the Committee

on Armed Services.

THE FORT ORD CLOSURE IMPACT ACT OF 1995

∑ Mrs. BOXER. Mr. President, I introduce important legislation to convey

surplus real property at the former

Fort Ord Army reservation to the city

of Seaside, CA. The sale of this property, which includes two golf courses

and surrounding property, is in accordance with the reuse plan prepared by

the Fort Ord Reuse Authority. This

legislation enjoys strong community

support. An identical bill has been introduced in the House of Representatives by Congressman SAM FARR.

This legislation would help implement the 1993 recommendation of the

Defense Base Closure and Realignment

Commission. In the Commission’s 1993

report to the President, it made specific recommendations for the disposal

of Army property. These recommendations balanced the need for property

reuse with the Army’s legitimate need

to support the military personnel remaining on the Monterey Peninsula.

Specifically, the Commission directed the Department to dispose of all

property, including the golf courses,

not required to support the Presidio of

Monterey and the Naval Postgraduate

School. Accordingly, in 1993, the Acting Secretary of the Army decided to

sell the two Fort Ord golf courses to

the city of Seaside, CA.

Unfortunately, the Defense Base Closure and Realignment Act does not permit the Commission to consider the

nonappropriated fund revenue needs

which are supported by the golf course

revenues. This legislation addresses

this problem by allowing funds received by the Army from the sale of

golf courses to be deposited into the

Army’s morale, welfare, and recreation

account.

This legislation conveys approximately 477 acres, which consist of the

two Fort Ord golf courses, Black Horse

and Bayonet, and neighboring the surplus housing facilities. This property

has been screened through the Pryor

process established in the fiscal year

1994 Defense Authorization Act.

Importantly, this legislation requires

the city of Seaside to pay fair market

value for the property. I want to repeat

that point: this is not a giveaway program; the city of Seaside is required to

pay full market value. The proceeds

from the sale of the golf course will be

deposited in the Department of the

Army’s morale, welfare, and recreation

fund, and the proceeds from the housing sale will be deposited in the BRAC

account.

This legislation is another important

step in implementing the highly successful Fort Ord Reuse Plan. By enacting this legislation, the Congress will

help implement the BRAC Commission’s 1993 recommendations and simultaneously foster economic development

in the city of Seaside.

I ask unanimous consent that the bill

be printed in the RECORD.

There being no objection, the bill was

ordered to be printed in the RECORD, as

follows:

S. 891

Be it enacted by the Senate and House of Representatives of the United States of America in

Congress assembled,

SECTION 1. LAND CONVEYANCE, FORT ORD, CALIFORNIA.

(a) CONVEYANCE REQUIRED.—The Secretary

of the Army shall convey to the City of Seaside, California (in this section referred to as

the ‘‘City’’), all right, title, and interest of

the United States in and to a parcel of real

property (including improvements thereon)

consisting of approximately 477 acres located

in Monterey County, California, and comprising a portion of the former Fort Ord

Military Complex. The real property to be

conveyed to the City includes the two Fort

Ord Golf Courses, Black Horse and Bayonet,

and the Hayes Housing Facilities.

(b) CONSIDERATION.—As consideration for

the conveyance of the real property and improvements under subsection (a), the City

shall pay to the United States an amount

equal to the fair market value of the property to be conveyed, as determined by the

Secretary under such terms and conditions

as are determined to be fair and equitable to

both parties.

(c) USE AND DEPOSIT OF PROCEEDS.—(1)

From the funds paid by the City under subsection (b), the Secretary shall deposit in the
S7922 CONGRESSIONAL RECORD — SENATE June 7, 1995

Morale, Welfare, and Recreation Fund Account of the Department of the Army an

amount equal to the portion of such funds

corresponding to the fair market value of the

two Fort Ord Golf Courses conveyed under

subsection (a), as established under subsection (b).

(2) The Secretary shall deposit the balance

of the funds paid by the City under subjection (b), after deducting the amount deposited under paragraph (1), in the Department

of Defense Base Closure Account 1990.

(d) DESCRIPTION OF PROPERTY.—The exact

acreage and legal description of the real

property (including improvements thereon)

to be conveyed under subsection (a) shall be

determined by a survey satisfactory to the

Secretary and the City. The cost of the survey shall be borne by the City.

(e) ADDITIONAL TERMS AND CONDITIONS.—

The Secretary may require such additional

terms and conditions in connection with the

conveyance under this section as the Secretary considers appropriate to protect the

interests of the United States.∑

By Mr. GRASSLEY (for himself,

Mr. DOLE, Mr. COATS, Mr.

MCCONNELL, Mr. SHELBY, and

Mr. NICKLES):

S. 892. A bill to amend section 1464 of

title 18, United States Code, to punish

transmission by computer of indecent

material to minors; to the Committee

on the Judiciary.

THE PROTECTION OF CHILDREN FROM COMPUTER

PORNOGRAPHY ACT OF 1995

Mr. GRASSLEY. Mr. President, I am

pleased to introduce the Protection of

Children from Computer Pornography

Act of 1995. I believe this bill would

provide children with the strongest

possible protection from computer pornography. I would like to thank the

majority leader for his crucial support

of this important piece of legislation.

Currently, child molesters and sexual

predators use computer networks to locate children and try to entice them

into illicit sexual relationships. Accordingly, my bill would make it a

crime to knowingly or recklessly

transmit indecent pornographic materials to children over computer networks. Some so-called access providers

facilitate this by refusing to take action against child molesters, even after

other computer users have complained.

So, my bill would make it a crime for

access providers who are aware of this

sort of activity to permit it to continue.

Mr. President, I have carefully drafted this bill so that it will withstand

the inevitable court challenge. This

bill focuses only on protecting children

from material which the Supreme

Court has repeatedly stated is harmful

to children. The Protection of Children

from Computer Pornography Act of

1995 would not tell any adult what type

of computerized material they may

view or obtain.

Finally, Mr. President, due to time

constraints, I ask unanimous consent

that the remainder of my remarks be

printed into the RECORD.

ANALYSIS OF THE PROTECTION OF CHILDREN

FROM INDECENT PORNOGRAPHY ACT OF 1995

At the outset, this initiative, which

amends 18 U.S.C. § 1464 (1984), defines several

technical terms. For ‘‘remote computer facility’’ and ‘‘electronic communications

service,’’ the definitions used in the ‘‘Protection of Children from Computer Pornography

Act of 1995’’ are taken from existing sections

of the criminal code. Because it was unclear

whether the terms ‘‘remote computer service’’ and/or ‘‘electronic communications

service’’ would include an electronic bulletin

board, the Grassley initiative creates a specific definition for electronic bulletin board

systems. This was done to avoid the possibility that electronic bulletin boards, some of

which specialize in providing pornographic

materials, would be exempt from the bill.

Substantively, this creates two distinct

criminal offenses. First, it is a crime to

knowingly or recklessly transmit indecent

pornography to minors. The Grassley bill

deals exclusively with indecent pornography

provided to children because there are already federal laws against providing obscene

material and child pornography to anyone,

including children. See 18 U.S.C. § 2252 (Supp.

1994); 18 U.S.C. § 1465 (Supp. 1995). The definition of indecent material has been established by the Supreme Court and is discussed

below.

Second, the bill would make it a crime for

an on-line service which permits users to access the Internet or electronic bulletin board

to willfully permit an audit to transmit indecent pornography to a minor. In the criminal law, ‘‘willful’’ has a specific meaning

which is uniquely suited to on-line access

providers. See ‘‘Manual of Modern Criminal

Jury Instructions for the Ninth Circuit’’

§ 5.05 (West 1989). A willfulness standard is

more appropriate for on-line service providers because those services can only monitor

customer communications in narrow circumstances, or face criminal prosecution for

invasion of privacy. See 18 U.S.C. § 2510

(Supp. 1995).

To prove a violation under the bill for permitting adults to transmit indecent material

to children, the Justice Department would

have to show that the access provider was

actually aware that a particular recipient

was a child and that the access provider’s

customers were using the on-line service to

transmit indecent material to minors. Importantly, although this burden of proof appears to be high, it could easily be met by

prosecutors, given the current practice.

LEGAL BACKGROUND: THE CONCEPT OF

INDECENCY

Basically, there are three categories of sexually explicit expression which are subject

to congressional regulation notwithstanding

the First Amendment. See New York v. Ferber, 458 U.S. 747 (1982); Miller v. California, 413

U.S. 15 (1973). The Grassley initiative focuses

exclusively on indecent material because existing federal laws largely cover the transmission of obscene and child pornographic

material in interstate commerce. See U.S.C.

§ 2252 (Supp. 1995); U.S.C. § 1465 (Supp. 1995);

U.S.C. §1462 (Supp. 1995).

For present purposes, indecent material

can be defined as depictions of sexual activity or sexual organs which are patently offensive according to contemporary community standards. See FCC v. Pacifica, 438 U.S.

726, 732 (1978); Alliance for Community Media v.

FCC, 10 F.3d 812 (D.C. Cir. 1993), rehearing en

banc granted, 15 F.3d 186 (D.C. Cir. 1994); Action for Children’s Television v. FCC, 932 F.2d

1504 (D.C. Cir. 1991). This test is basically the

second prong of the ‘‘Miller Test.’’ 413 U.S.

24–25. It is important to note that while indecent material is not constitutionally protected for children, indecency is protested

for and among adults. Thus, laws intended to

protect children must not ‘‘reduce the adult

population . . . [to viewing] . . . only what is

acceptable to children.’’ Butler v. Michigan,

352 U.S. 380, 383 (1957). While some court have

applied the indecency in slightly different

ways depending on the medium, (see Pacifica,

supra; Sable Communications, Inc. v. FCC, 492

U.S. 115 (1989)), the central purpose of the indecency standard is to prohibit or to regulate the display of patently offensive representations of sexually explicit material

which is openly available to the public. As

the Court stated in Pacifica, see 438 U.S. at

748–49, this means a medium, like computers,

which has ‘‘a uniquely pervasive presence in

the lives of all Americans’’ and is ‘‘uniquely

accessible to children’’ can be regulated to

protect children.

That is precisely what the ‘‘Protection of

Children from Computer Pornography’’ initiative would do—prohibit transmission of

computerized indecent pornography to children while permitting adults to access otherwise constutitionally protected material.

In some respects indecency is similar,

though not identical, to the concept of

‘‘harmful to juveniles’’ laws, which exist in

nearly every state. These laws prohibit the

sale (and sometimes the display) of certain

sexually explicit material to minors. See

Ginsberg v. New York, 390 U.S. 629 (1968). In

order to determine whether material is

harmful to juveniles, the material must be

found to satisfy a three-part test. One part of

this test involves a showing that the material depicts or describes sexual activity in

terms patently offensive according to contemporary community standards for what is

acceptable for children. In a sense, the federal indecency standard is designed to protect children from harmful depictions of sexual activity, similar to the goal of the harmful to juveniles test.

Traditionally, the federal government has

not regulated extensively to protect children

from inappropriate exposure to pornography

because it is primarily a matter of local concern. With the rise of global, international

computer networks, however, it has become

clear that Congress has a more extensive

role to play in protecting children. The

Grassley initiative responds to this changed

environment by ‘‘filing in the gaps’’ created

by new technology.

Mr. GRASSLEY. Mr. President, I ask

unanimous consent that a statement

from the Family Research Council and

the bill be printed in the RECORD.

It has the coauthorship of Senators

DOLE, COATS, MCCONNELL, SHELBY, and

NICKLES.

There being no objection, the material was ordered to be printed in the

RECORD, as follows:

S. 892

Be it enacted by the Senate and House of

Representatives of the United States of America

in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Protection

of Children From Computer Pornography

Act of 1995’’.

SEC. 2. TRANSMISSION BY COMPUTER OF INDECENT MATERIAL TO MINORS.

(a) OFFENSES.—Section 1464 of title 18,

United States Code, is amended—

(1) in the heading by striking ‘‘Broadcasting obscene language’’ and inserting ‘‘Utterance of indecent or profane language by

radio communication; transmission to minor

of indecent material from remote computer

facility, electronic communications service,

or electronic bulletin board service’’;

(2) by striking ‘‘Whoever’’ and inserting

‘‘(a) UTTERANCE OF INDECENT OR PROFANE

LANGUAGE BY RADIO COMMUNICATION.—A person who’’; and

(3) by adding at the end the following: