Lamar Smith

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Chairman, the Chairman did a good job of summarizing S. 878 so I will not repeat his description of the bill. I would emphasize that during my Subcommittee's oversight hearing on judgeship needs last year we received testimony from the Judicial Conference and others that supported the requests that are a part of this package. The need to create new circuit and district judgeships is real and speaks to our obligation to assist a coequal branch of government in discharging its duties on behalf of the American people. I urge Members to support the bill and the Sensenbrenner amendment that will cure a scoring problem with consideration of S. 878.

Mr. SMITH of Texas. Mr. Chairman, I support this amendment. The Ninth Circuit has become so large that unless something is done, it risks becoming irrelevant. In the past 2 years, the Courts, Internet and Intellectual Property Subcommittee has held two hearings on this issue. It is clear to me that this bill contains much-needed reforms to the court system. As has been pointed out, the Ninth Circuit is the largest in the country. It represents 56 million people and has 48 judges--twice the number of judges in the next largest circuit. It has gotten so big that because its size prohibits participation by the entire circuit, as few as six judges often determine case law for the entire circuit. This leads to inconsistent decisions and uncertainty for litigants. The Ninth Circuit leads all circuits in total appeals filed and pending. The increase in its workload over one and 5-year periods leads all circuits. Worst of all, it continues to rank as one of the slowest circuits in disposing of cases. Mr. Chairman, bigger court systems do not mean better justice, but slower justice. And as we know, ``justice delayed is justice denied.'' Unless this problem is addressed, the Ninth Circuit will continue to grow in size but diminish in effectiveness. Mr. Simpson's amendment takes a common sense approach and will make the Ninth Circuit more efficient. This amendment creates a new Ninth Circuit, as well as a new Twelfth and Thirteenth. In addition, it authorizes the President to appoint five new judges to permanent Ninth Circuit seats and two judges to fill temporary seats. The Ninth Circuit has grown too big to take care of the people it serves. I urge my colleagues to support this amendment and help us improve the justice system in this country. Americans for the most part have retained faith in our judiciary because they believe it applies the rule of law, from traffic court to the Supreme Court, when adjudicating legal disputes. I hope we are able to return to the Ninth Circuit an ability to discharge its civic functions on behalf of the American people.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, I wish to offer some additional information and guidance on several sections of H.R. 4077. Section 12 of H.R. 4077 is called the ``Family Movie Act of 2004.'' The Committee has made changes to the Committee reported language to better enable the provision to achieve its purpose: to empower people to use technology to skip and mute material that they find objectionable in movies, without impacting established doctrines of copyright or trademark law or those whose business model depends upon advertising. This amendment to the law should be narrowly construed to affect its intended purpose only. The sponsors of the legislation have been careful to tailor narrowly the legislation to clearly allow specific, consumer-directed activity and not to open or decide collateral issues or to affect any other potential or actual disputes in the law. The substitute amendment we offer today makes clear that, under certain conditions, ``making imperceptible'' of limited portions of audio or video content of a motion picture--that is, skipping and muting limited portions of movies without adding any content--as well as the creation or provision of a computer program or other technology that enables such making imperceptible, does not violate existing copyright or trademark laws. That is true whether the movie is on prerecorded media, like a DVD, or is transmitted to the home, as through services like ``video-on-demand.'' The core provision of the Family Movie Act lies in Section 2, which creates a new exemption at section 110(11) of the Copyright Act. This new exemption sets forth a number of conditions to ensure that it achieves its intended effect while remaining carefully circumscribed and avoiding any unintended consequences. The conditions that allow an exemption, which I will discuss in more detail in a moment, consist of the following: The making imperceptible must be ``by or at the direction of a member of a private household.'' This legislation contemplates that any altered performances of the motion picture would be made either directly by the viewer or at the direction of a viewer where the viewer is exercising substantial choice over the types of content they choose to skip or mute. The making imperceptible must occur ``during a performance in or transmitted to the household for private home viewing.'' Thus, this provision does not exempt an unauthorized ``public performance'' of an altered version. The making imperceptible must be ``from an authorized copy of a motion picture.'' Thus, skipping and muting from an unauthorized, or ``bootleg'' copy of a motion picture would not be exempt. No ``fixed copy'' of the altered version of the motion picture may be created by the computer program or other technology that makes imperceptible portions of the audio or video content of the motion picture. This provision makes clear that services or technologies that make a fixed copy of the altered version are not afforded the benefit of this exemption. No changes, deletions or additions may be made by the computer program or other technology to commercial advertisements, or to network or station promotional announcements, that would otherwise be performed or displayed before, during, or after the performance of the motion picture. This requirement makes plain that devices or services that provide for automated ``ad-skipping'' do not fall within the scope of this exemption. The ``making imperceptible'' of content does not include the addition of audio or video content over or in place of other content, such as placing a modified image of a person, a product, or an advertisement in place of another, or adding content of any kind. The portion of the substitute amendment containing the Family Movie Act reflects a number of clarifying changes from the version of the bill reported by the Judiciary Committee. The substitute amendment makes clear that the ``making imperceptible'' of limited portions of audio or video content of a motion picture must be done by or at the direction of a member of a private household. While this limitation does not require that the individual member of the private household exercise ultimate decision- making over each and every scene or element of dialog in the motion picture that is to be made imperceptible, it does require that the making imperceptible be made at the direction of that individual in response to the individualized preferences expressed by that individual. The substitute amendment envisions that the test of ``at the direction of an individual'' is satisfied when an individual selects preferences from among options that are offered by the technology. The Committee has used as an example the model of ClearPlay, which appeared before the Subcommittee during hearings on this legislation. ClearPlay provides filter files that allow a viewer to express his or her preferences in a number of different categories, including language, violence, drug content, sexual content, and several others. The version of the movie that the viewer sees depends upon the preferences expressed by that viewer. It is the Committee's view that the current version of ClearPlay falls under the liability limitation of the Family Movie Act. This limitation would not allow a program distributor, such as a provider of video-on-demand services, a cable or satellite channel, or a broadcaster, to make imperceptible limited portions of a movie in order to provide an altered version of that movie to all of its customers, which would likely violate a number of the copyright owner's exclusive rights, or to make a determination of scenes to be skipped or dialog to be muted and to offer to its viewers no more of a choice than to view an original or an altered version of that film. Some element of individualized preferences and control must be present such that the viewer exercises substantial choice over the types of content they choose to skip or mute. It is also important to emphasize that the new section 110(11) exemption is targeted narrowly and specifically at the act of ``making imperceptible'' limited portions of audio or video content of a motion picture during a performance that occurs in, or that is transmitted to, a private household for private home viewing. This section would not exempt from liability an otherwise infringing performance, or a transmission of a performance, during which limited portions of audio or video content of the motion picture are made imperceptible. In other words, where a performance in a household or a transmission of a performance to a household is done lawfully, the making imperceptible limited portions of audio or video content of the motion picture during that performance, consistent with the requirements of this new section, will not result in infringement liability. Similarly, an infringing performance in a household, or an infringing transmission of a performance to a household, are not rendered non-infringing by section 110(11) by virtue of the fact that limited portions of audio or video content of the motion picture being performed are made imperceptible during such performance or transmission in a manner consistent with that section. The substitute amendment also provides additional guidance, if not an exact definition, of what the term ``making imperceptible'' means. The substitute provides that the term ``making imperceptible'' does not include the addition of audio or video content that is performed or displayed over or in place of existing content in a motion picture. This is intended to make clear in the text of the statute what has been expressed throughout the consideration of this legislation, which is that the Family Movie Act does not allow for the addition of content of any kind, including the making imperceptible of audio or video content by replacing it or by superimposing other content over it. In other words, for purposes of section 110(11), ``making imperceptible'' refers solely to skipping scenes and portions of scenes or muting audio content from the original, commercially available version of the motion picture. No other modifications of the content are addressed or immunized by this legislation. The Committee is aware that some copy protection technologies rely on matter placed into the audio or video signal. We would point out that the phrase ``limited portions of audio or video content of a motion picture'' means what it would naturally seem to mean (i.e., the actual content of the motion picture) and does not refer to any component of a copy protection scheme or technology. It is not our intention that this provision allow the skipping of technologies or other copy-protection- related matter for the purpose of defeating copy protection. Rather, it is expected that skipping and muting of content in the actual motion picture will be skipped or muted at the direction of the viewer based on that viewer's desire to avoid seeing or hearing the action or sound in the motion picture. Skipping or muting done for the purpose of or having the effect of avoiding copy protection technologies would be an abuse of the safe harbor outlined in this legislation and may violate section 1201. Violating the Digital Millennium Copyright Act, and particularly its anti-circumvention provisions, is not necessary to enable technology of the kind contemplated under the Family Movie Act. Although the amendment to section 110 provides that it is not an infringement of copyright to engage in the conduct that is the subject of the Family Movie Act, the Act does not provide any exemption from the anti- circumvention provisions of section 1201 of title 17, or from any other provision of chapter 12 of title 17. It would not be a defense to a claim of violation of section 1201 that the circumvention is for the purpose of engaging in the conduct covered by this new exemption in section 110(11), just as it is not a defense under section 1201 that the circumvention is for the purpose of engaging in any other non- infringing conduct. The Committee is aware of companies currently providing the type of products and services contemplated by this Act and found that the Family Movie Act created no impediment to the technology employed by those companies. Indeed, it is important to underscore the fact that our support for this technology and consumer offering is driven in some measure by our desire for copyright law to be respected and to ensure that this technology be deployed in a way that supports the continued creation and protection of entertainment and information products that rely on copyright protection. It is our firm expectation that those rights and the interests of viewers in their homes can work together in the context we have defined in this bill. Any suggestion that support for the exercise of viewer choice in modifying their viewing experience of copyrighted works requires violation of either the copyright in the work or of the copy protection schemes that provide protection for such work should be rejected as counter to legislative intent or technological necessity. The substitute amendment offered today also provides for an exclusion to the exemption in cases involving the making imperceptible of commercial advertisements or network or station promotional announcements. The Committee heard concerns during the Committee markup that the bill might be read to somehow exempt from copyright infringement liability devices that allow for skipping of advertisements in the playback of recorded television. This is neither the intent nor the effect of the bill. The phrase ``limited portions of audio or video content of a motion picture'' is intended to apply only to the skipping and muting of scenes or dialog of a motion picture and not to the skipping of advertisements. That intent is made clear in the language of the statute by our amendment today, which provides that the new section 110(11) exemption does not apply to the making imperceptible of commercial advertisements, or to network or station promotional announcements, that would otherwise be performed or displayed before, during or after the performance of the motion picture. The changes made by the substitute amendment are not to be taken to suggest that the Committee intends to express a view on the merits of, or the unresolved legal questions underlying, recent litigation related to so-called ``ad-skipping'' technologies. The Committee intends simply to make clear that this legislation is narrowly targeted to the use of technologies and services that filter out content in movies that a viewer finds objectionable and that it in no way relates to or affects the legality of so-called ``ad-skipping'' technologies. Because the committee's and the sponsors' intention has been to fix a narrow and specific copyright issue, we seek to avoid unnecessarily interfering with current business models, especially with respect to advertising, promotional announcements, and the like. The phrase ``commercial advertisements or . . . network or station promotional announcements'' is intended to cover what would naturally be perceived as commercials by most viewers, including traditional commercials that stand independent of the narrative flow of the content of the actual motion picture itself, or promotional announcements made in similar fashion, such as those commonly used to announce upcoming programming offered by the network or other entertainment provider. Let me offer a few final points with respect to Section 2. During the consideration of this legislation the Committee became aware of a variety of services that distributed actual copies of altered movies. This type of activity is clearly not covered by the Family Movie Act. There is a basic distinction between a viewer choosing to alter what is visible or audible when viewing a film, the focus of this legislation, and a separate entity choosing to create and distribute a single, altered version to members of the public. It is the sponsor's intent that only viewer directed changes to the viewing experience be immunized, and not the making or distribution of actual altered copies of the motion picture. On a related point, the committee took notice of conflicting expert opinions on whether fixation is required to infringe the derivative work right under the Copyright Act, as well as whether evidence of Congressional intent in enacting the 1976 Copyright Act supports the notion that fixation should not be a prerequisite for the preparation of an infringing derivative work. The committee and the sponsors take no view of that disputed point of the law and leave that point to future developments in the courts or Congress. This legislation should not be construed to be predicated on or to take a position on whether fixation is necessary to violate the derivative work right, or whether the conduct that is immunized by this legislation would be infringing in the absence of this legislation. Section 3 of the Family Movie Act provides for a limited exemption from trademark infringement for those engaged in the conduct described in the new section 110(11) of the Copyright Act. The substitute amendment makes several clarifying changes from the version as reported by the Committee. In short, this section makes clear that a person engaging in the conduct described in section 110(11)--the ``making imperceptible of portions of audio or video content of a motion picture or the creation or provision of technology to enable such making available--is not subject to trademark infringement liability based on that conduct, provided that person's conduct complies with the requirements of section 110(11). This section provides a similar exemption for a manufacturer, licensee or licensor of technology that enables such making imperceptible, but such manufacturer, licensee or licensor is subject to the additional requirement that it ensure that the technology provides a clear and conspicuous notice at the beginning of each performance that the performance of the motion picture is altered from the performance intended by the director or the copyright holder. Of course, nothing in this section would immunize someone whose conduct, apart from the narrow conduct described by 110(11), rises to the level of a Lanham Act violation. For example, someone who provides technology to enable the making imperceptible limited portions of a motion picture consistent with section 110(11) could not be held liable on account of such conduct under the Trademark Act, but if in providing such technology the person also makes an infringing use of a protected mark or engages in other ancillary conduct that is infringing, such conduct would not be subject to the exemption provided here. Finally, regarding Section 10(G), the Committee intends that the government has the burden to prove beyond a reasonable doubt that the service provider is ineligible for a Section 512 safe harbor from monetary relief for performing the function in question. The Committee also intends that courts refer to the legislative history regarding and case law interpreting Section 512 as a guide to interpreting the substantive standards governing whether the service provider is ineligible for Section 512 protection.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, I thank the gentleman from Texas, majority leader, for yielding me this time. Mr. Speaker, however we feel about the subject of marriage, we can still support the Marriage Protection Amendment. That is because judicial activism in America has reached a crisis. Judges routinely overrule the will of the people, invent so-called rights and ignore traditional values. Recently, judges have even changed the definition of marriage. Most Americans simply do not want judges to dictate a new kind of marriage that is so different from the one that has served so many so well for so long. They want to protect marriage as we know it. Eleven States have proposed to alter their constitutions or statutes to protect traditional marriage through ballot initiatives. Five States have already done so, with an average of over 70 percent of the voters wanting to protect marriage. To prevent judges from overruling these popular initiatives, we must pass the Marriage Protection Amendment. Either we act in Congress or a few judges will redefine marriage and impose their personal views on the country. The constitutional amendment process is an integral part of our democratic system, requiring approval from two-thirds of each House of Congress and three-quarters of the States by votes of their State legislatures. Passing a constitutional amendment places this debate back where it belongs, and that is with the American people. It is the American people and their representatives who should determine how marriage is defined. That is why we should support the Marriage Protection Amendment. Finally, Mr. Speaker, I want to say, we have heard two arguments time and time again today by the opposition that they have used to cite to oppose the Marriage Protection Amendment. The first is some variation of ``all people are created equal,'' that somehow this is about equal rights. But, Mr. Speaker, just because all people are created equal does not mean that all kinds of marriages are equal, just like it does not mean that all kinds of flags are equal or all kinds of governments are equal. The second argument we have heard today over and over again is that somehow this is a political issue being used to win elections. I do not mind that argument, Mr. Speaker, because that concedes that a majority of the American people agree with us that we want to protect marriage as we know it.

Mr. SMITH of Texas

Mr. SMITH of Texas. Madam Speaker, I thank the gentleman from New Mexico (Mr. Pearce) for yielding to me. Madam Speaker, judicial activism in America has reached a crisis. Judges routinely overrule the will of the people, invent so-called rights and ignore traditional values. So far, judges have censored the Pledge of Allegiance in public schools, removed the Ten Commandments from public buildings and parks, banned the acknowledgment of God in public schools, imposed taxes, and now they have changed the definition of marriage. Most Americans simply do not want judges to establish a new kind of marriage that is so different from the one that has served so many so well for so long. They want to protect marriage as we know it. But what should citizens do and their elected representatives when a few judges impose their personal views on the American people? We have a choice. Either let judges decide or pass the Marriage Protection Amendment. Either we act in Congress or courts will continue to impose their definition of marriage on the country. Judges should interpret the Constitution, not promote a political agenda. The people and their representatives, not judges, should set social policy. Madam Speaker, most Americans do not want to redefine marriage. Forty-four States already have enacted laws that provide that marriage shall consist only of the union of a man and a woman. The 44 States include 86 percent of the Nation's population. We need to protect the right of the voters of these States to define marriage as they see it. This right is now threatened by activist judges who would overturn these States' policies. On behalf of the American people, we should vote for the Marriage Protection Amendment because it rightfully restrains judges who threaten our democracy. We often hear opponents say that a constitutional amendment goes too far too fast. But amendment supporters were not the ones who, for example, ordered Massachusetts to legalize same-sex marriage. It was a panel of activist judges by a four-to-three vote. It is time to return this debate on society's core institution to the democratic decision- making process. Let us take this decision away from the courts and give it back to the American people where it belongs. The constitutional amendment process is an integral part of our democratic process, requiring approval from two-thirds of each House of Congress and three-quarters of the States by votes of their State legislatures. Passing a constitutional amendment will place this debate back where it belongs, with the American people. If we pass the marriage amendment, we will retain our understanding of marriage as the union of a husband and wife, ratified by the States. If we do not act now, the courts will redefine marriage. But it is the American people and their representatives who should determine how marriage is defined. Madam Speaker, that is why we should support the Marriage Protection Act, as I hope all my colleagues will do tomorrow.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, first of all I want to thank the gentleman from Wisconsin, the chairman of the Committee on the Judiciary, for yielding me time. Also at the outset I want to acknowledge that this legislation represents a genuine bipartisan and cooperative effort. The gentleman from California (Mr. Berman), who I understand is on his way to the House floor from the airport, was a partner in the effort to write this legislation and has contributed many good ideas to the final product. So I want to acknowledge his good work as well as his input and say that I appreciate his support. Mr. Speaker, piracy of intellectual property over the Internet, especially on peer-to-peer networks, has reached alarming levels. Millions of pirated movies, music, software, game and other copyrighted files are now available for free download from suspect peer-to-peer networks. This piracy harms everyone, from those looking for legitimate sources of content, to those who create it. I have heard from songwriters, video store owners, software publishers, and game developers who feel the impact of such piracy every day. They have urged Congress to help them educate the public about the harms of piracy while also warning and penalizing those who continue to steal from others. Peer-to-peer technology is an essential development of our Nation's high-tech economy. However, like all new technologies, peer-to-peer technologies have been abused by those who want to commit crimes. Our Nation's laws need to be updated to reflect the harms that can be caused by this new technology, without penalizing the technology itself. This legislation addresses P2P piracy by better educating the public about copyright law, authorizing the creation of a system to warn online users of potential infringement, penalizing those who bring camcorders into movie theaters for the purpose of making pirated DVDs, assisting Federal law enforcement authorities in their efforts to investigate and prosecute intellectual property crimes, and designating designated intellectual crime agents within DOJ Computer Hacking and Intellectual Property Sections to prosecute cybercrimes. The Internet has revolutionized how Americans locate information, shop and communicate. We must not let new Internet technologies become a haven for criminals. Mr. Speaker, also included in H.R. 4077 is an updated version of H.R. 4586, the Family Movie Act of 2004, which the committee reported out in July. Parents should have the right to watch any movie they want and to skip over or mute any content they find objectionable. This legislation ensures that parents have the final say in what their children watch in the privacy of their own home and that parents can act in the best interests of their children. Parents need all the help they can get in protecting their children from the sex, violence, and profanity found in many movies; and parents should be able to determine what their children see on the screen. Technology that helps parents accomplish this should be applauded, and H.R. 4077 ensures that this technology will not face continued legal challenges. Mr. Speaker, I urge my colleagues to pass this important piece of legislation.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, this week no single media organization will receive the media bias award. However, the public has made clear its views of the media as an institution. The American people feel standards of journalism have eroded. Advocacy has replaced objectivity. After conducting an opinion poll, the Gallup organization recently found that fewer than half of Americans have confidence in the media's ability to fairly report the news. And an astounding three times as many people believe the media is more liberal than conservative. To quote Gallup, ``Media Credibility Reaches Lowest Point in Three Decades.'' Mr. Speaker, what we should expect from the media, as both Americans and consumers of news, are the facts, objectively and fairly reported.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, for years, the Misery Index has measured the good or bad impact of the economy on everyday Americans. The Misery Index is the combination of the unemployment rate and the inflation rate. President George Bush has the lowest Misery Index of any President seeking re-election in 30 years. The Misery Index under President Bush is only 7.3 percent. Over 1.7 million jobs have been created just in the last year. President Bush's initiatives have given Americans economic growth and a freer and more secure country. Mr. Speaker, given President Bush's good record on the economy, maybe we should give him credit for a prosperity index.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, I thank the gentleman from Wisconsin, the chairman of the Committee on the Judiciary, for yielding me time. Mr. Speaker, product names are a key part of the American economy, not only to boost sales of a product, but also to assure that consumers have some assurances about the identity of the manufacturer of the product they are interested in buying. Counterfeiting, the effort to deceive consumers into buying lower quality goods instead of the high quality goods they want, is now a real problem for high-tech companies. For many years, software publishers have attempted to thwart counterfeiting activity by developing physical authentication components, called COAs, that help consumers and law enforcement agencies distinguish between genuine software and sophisticated counterfeits. Counterfeits are now combining pirated CD-ROMs and packaging with genuine components obtained through theft or fraud. Multiplied by millions of transactions, the result to legitimate businesses is lost jobs, lost profits and lost tax revenue on a scale that compromises the health of otherwise vibrant industries. Last week, a Federal indictment charged 11 people with conspiring to distribute more than $56 million in counterfeit software and products. However, due to a loophole in existing laws, charges could not be brought concerning over 20,000 illicit COAs that were seized. Until H.R. 3632 is enacted, Federal law does not prohibit trafficking in genuine physical authentication components. Prosecutors find it impossible to take any legal action in such situations. As a result, this activity has become a highly profitable and largely risk-free elicit business. The legislation will close this loophole and empower Federal authorities to prosecute counterfeiting activity on a greater scale with better results. Americans will be better protected from those who attempt to deceive them into spending their money on counterfeit products. The text of H.R. 3754, the Fraudulent Online Identity Sanctions Act, has also been included in the underlying legislation. The Fraudulent Online Identity Sanctions Act assures those that use false identities in conjunction with a domain name face additional penalties for other crimes they commit. To ensure that online anonymity is protected, the mere act of using an alias online is not penalized. A savings clause assures that first amendment rights are not impacted by the legislation. This legislation, though, will ensure that those who deceive others as they commit crimes online are, in fact, subject to additional criminal penalties for such deceit. Two Federal Court bills also have been added to the underlying legislation, H.R. 112 and H.R. 4646. These bills create new places of holding U.S. Federal District Court in Colorado Springs, Colorado, and in Plattsburgh, New York. Americans seeking their constitutional right to be heard in Federal Court will find it easier to do so once this legislation is enacted. H.R. 112 is cosponsored by both Republican and Democratic members of the Colorado delegation. Mr. Speaker, I urge my colleagues to support this legislation.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, between now and the election, I am announcing the weekly award for the most biased media story. The CBS broadcast on President Bush's National Guard service has collapsed. CBS and Dan Rather issued an apology, but still tried to justify their actions. However, there is no excuse for why this broadcast made its way into the homes of millions of Americans. There is no excuse for not trying to obtain the original documents. There is no excuse for not checking the credibility of the person making the accusation who has a history of attacking President Bush. There is no excuse for being in a rush to smear President Bush. There is no excuse for contacting the Kerry campaign before airing the broadcast, and there is no excuse for this serious breach of journalistic ethics. Mr. Speaker, this week's media bias award has no competition. It goes to CBS News.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, last week I announced a weekly award for the worst example of a biased liberal media article. The nominees for the first Media Bias Award are: NBC's ``Today'' show for interviewing Kitty Kelley for 3 consecutive days about her book on the President's family, filled with second-hand sources, rumors, and falsehoods; Newsweek Magazine for this week's cover story on ``The Secret Money War'' in the Presidential campaign. Newsweek neglected to report that the top five outside money groups all have Democratic Party ties and have spent a combined $91 million attacking President Bush; the New York Times for repeatedly hammering Republicans for their get-out-the-vote efforts among church members while never criticizing Democrats for political speeches in churches; The Washington Post for its coverage of the Democratic and Republican conventions. The day after the Democratic convention, The Post ran three positive front-page stories about the Democratic nominee; but the day after the Republican convention, The Post featured two negative and only one positive front-page story on President Bush. Mr. Speaker, the winner of the first Media Bias Award is NBC for its decision to feature Bush critic Kitty Kelley on the Today show 3 days in a row. This is the Media Bias Award to NBC.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, I thank the gentleman from Wisconsin (Mr. Sensenbrenner), the chairman of the Committee on the Judiciary, for yielding me this time. Mr. Speaker, frivolous lawsuits bankrupt individuals, ruin reputations, drive up insurance premiums, increase health care costs, and put a drag on the economy. Frivolous lawsuits are brought, for example, where there is no evidence that shows negligence on the part of the defendant. These nuisance lawsuits make a mockery of our legal system. Of course, many Americans have legitimate legal grievances, from someone wrongly disfigured during an operation to a company responsible for contaminating a community's water supply. No one who deserves justice should be denied justice. However, gaming of a system by a few lawyers drives up the cost of doing business and drives down the integrity of the judicial system. Let me give some examples. The Chief Executive Officer of San Antonio's Methodist Children's Hospital was sued after he stepped into a patient's hospital room and asked how he was doing. Of course, a jury cleared him of any wrongdoing. A Pennsylvania man sued the Frito-Lay company, claiming that Doritos chips were ``inherently dangerous'' after one stuck in his throat. After 8 years of costly litigation, the Pennsylvania Supreme Court threw out the case, writing that there is ``a common sense notion that it is necessary to properly chew hard foodstuffs prior to swallowing.'' In a New Jersey Little League game, a player lost sight of a fly ball because of the sun. He was injured when the ball struck him in the eye. The coach was forced to hire a lawyer after the boy's parents sued. The coach settled the case for $25,000. Today, almost any party can bring any suit in almost any jurisdiction. That is because plaintiffs and their attorneys simply have nothing to lose. All they want is for the defendant to settle. This is legalized extortion. It is lawsuit lottery. Some lawyers file lawsuits for reasons that can only be described as absurd. They sue a theme park because its haunted houses are too scary. They sue the Weather Channel for an inaccurate forecast. And they sue McDonald's, claiming a hot pickle dropped from a hamburger caused a burn and mental jury. Defendants, on the other hand, can unfairly lose their careers, their businesses and their reputations. In short, they can lose everything. This is not justice, and there is a remedy. The Lawsuit Abuse Reduction Act. Mr. Speaker, this applies to both plaintiffs who file frivolous lawsuits merely to extort financial settlements and to defendants who unnecessarily prolong the legal process. If the judge determines a claim is frivolous, then they can order that person to pay the attorney's fees of the party who is the victim of their frivolous claim. This will make a lawyer think twice before he or she brings a lawsuit. In addition, this legislation prevents forum shopping. It requires that personal injury claims be filed only where the plaintiff resides, where the injury occurred, or where the defendant's principal place of business is located. This provision addresses the growing problem of attorneys who shop around the country for judges who routinely award excessive amounts. One of the Nation's wealthiest trial lawyers, Dickie Scruggs, has told us exactly how this abuse occurs, and the chairman of the Committee on the Judiciary used this example a while ago, but, quite frankly, it is just too good not to repeat. Here is what one of the king of torts says about forum shopping: ``What I call `the magic jurisdiction.' It's where the judiciary is elected with verdict money, the trial lawyers have established relationships with the judges that are elected; they've got large populations of voters who are in on the deal, they're getting their piece in many cases. It's almost impossible to get a fair trial if you're a defendant in some of these places. Any lawyer fresh out of law school can walk in there and win the case, so it doesn't matter what the evidence or law is.'' Mr. Speaker, I do not know how anyone can justify the continuation of this kind of abuse. One of these magic jurisdictions where trial lawyers flock is in my home State of Texas in Jefferson County. The Austin American Statesman noted that trial lawyers claim this is where ``juries pass down sizable judgments.'' Soaring medical liability insurance rates have followed, which has caused doctors to flee the area. Mr. Speaker, forum shopping is a part of lawsuit abuses and we must pass legislation to stop it from occurring. The following organizations support H.R. 4571: American Tort Reform Association, National Association of Home Builders, National Association of Manufacturers, National Restaurant Association, National Federation of Independent Business, American Insurance Association, and the U.S. Chamber of Commerce. Also, I might add, both Republican and Democratic presidential and vice presidential candidates are on record as wanting to stop frivolous lawsuits. So the Lawsuit Abuse Reduction Act is sensible reform that will help restore confidence to America's justice system. Mr. Speaker, I want to add one point and address a concern that was raised by my friend from Virginia and that had to do with a letter he raised from the Judicial Conference. Well, the Judicial Conference does not exactly enhance their credibility when they take a position contrary to the judges that they purport to represent. And, in fact, in surveys taken by the Judicial Conference before the rule was changed in 1993, it found that 80 percent of the judges favored the rule that we seek to go back to. After the rule was changed and weakened, which we opposed, they took another survey and found a majority of judges, in fact almost a majority of trial lawyers, liked the original rule that we seek to go back to in this legislation. So, Mr. Speaker, I urge my colleagues to support this bill.

Mr. SMITH of Texas. Mr. Speaker, I thank the gentleman from Wisconsin for yielding me this time. Mr. Speaker, let me respond to some of the concerns voiced by some of those who think they might oppose this bill. First of all, if a foreign corporation is involved, that does not prevent someone from having their day in court. The bill clearly says that it is where the plaintiff lives, and if one is a U.S. citizen, most likely they are going to live in the United States, or where the injury occurred, and the injury would have occurred in this country. So that takes care of their concerns there. Another previous speaker from Massachusetts started off by talking about the ban on assault weapons. This bill has nothing to do with that, but we do attempt to ban frivolous lawsuits, and in that we are successful. But the gentleman from Massachusetts did make a good point, and I will embrace it entirely, and that is he acknowledged, which I thought was quite an admission, that today there are, in fact, even by his own standards, 11,000 frivolous lawsuits a year. He said they have come down. That is because of the asbestos lawsuits working their way through the various courts. Eleven thousand frivolous lawsuits filed today. I guarantee my colleagues that 99 percent of the American people think 11,000 frivolous lawsuits a year today is 11,000 frivolous lawsuits too many. Another point I want to respond to, Mr. Speaker, was made by a gentleman who was concerned about the effect of this legislation on civil rights cases that might be filed. I want to assure him and others who might have that similar concern that if they look at section 5 of this bill, it reads: ``Nothing in this bill shall be construed to bar or impede the assertion or development of new claims or remedies under Federal, State, or local civil rights law.'' The reason it says ``new claims'' is because claims that already exist under current law obviously are not frivolous. There is a basis in law for filing those lawsuits. So we protect anybody who might file a civil rights lawsuit in this legislation. Furthermore, if there was some concern about that, one would think that it would have been raised in the full Committee on the Judiciary consideration of this bill. It was not mentioned and no amendments were offered on that point. Lastly, Mr. Speaker, I also want to reassure not only my colleagues but those who might be listening to this debate that this is not a bill trying to impugn the motives of all trial lawyers. In fact, the great majority of trial lawyers serve their profession and serve Americans honorably. We are talking about a very few attorneys who, quite frankly, abuse the system, who engage in legalized extortion, who file lawsuits for no other reason than they think someone can settle out of court and they are trying to extract money from them. That is the type of abuse we seek to stop in this bill, and that is the kind of abuse we intend to. Finally, there are many pieces of legislation considered by this body where we can see where half of the American people might benefit, half might not benefit. But in this case we have at least 99 percent of the American people on one side and just a few lawyers on the other side. And it is very rare, I think, that we would have the vast majority of the American people so clearly favoring one cause, and that is the cause of trying to reduce frivolous lawsuits.

Mr. SMITH of Texas. Mr. Speaker, I thank the chairman for yielding me this time. Mr. Speaker, anyone who is worried about what frivolous lawsuits will do to them, their family, their friends, or their businesses ought to rush to oppose this Democratic substitute amendment. That is because it is an amendment that will do very little to prevent frivolous lawsuits. The underlying bill makes several key changes that will deter lawyers from filing frivolous lawsuits. The substitute amendment before us strips all these away. First, this legislation, the underlying legislation, allows the court to require an individual who files a frivolous lawsuit to pay attorneys' fees incurred as a result of the frivolous lawsuit. This provision obviously makes attorneys think twice before they file such a frivolous lawsuit. However, the Democratic substitute amendment does not include this key provision. In other words, there is no disincentive to file a frivolous lawsuit. This also means that under the Democratic substitute, small business owners would still suffer from the cost of frivolous lawsuits. Individuals would still suffer because they would see their insurance premiums go up. They would see their health care costs rise. They would still see their reputations damaged, all because of wrongfully filed, frivolous lawsuits. In other words, Mr. Speaker, this substitute amendment does not provide any relief to those who would get unfairly slapped with a frivolous lawsuit. Those victims would still have to pay their own legal fees. Next, this substitute claims to have a ``three strikes and you are out'' provision. But if you look at it closely, as the chairman mentioned a while ago, there are no real consequences for the attorney who repeatedly files frivolous lawsuits. Instead, the substitute merely requires a court to refer the offending attorney to his State bar association; and you can imagine that means that nothing is going to happen. By contrast, the base bill requires that attorneys who fill frivolous claims face real consequence. Those attorneys can be barred from practicing in that Federal court for a year. That is a real disincentive to file frivolous lawsuits. Also, the Democratic substitute we are considering now places heavy mandates on States. It requires a new regulatory scheme to deal with ``civil justice expense and delay'' issues. Mr. Speaker, I think that is a very nice but meaningless euphemism for frivolous lawsuits. The requirements would create a new bureaucratic nightmare instead of dealing with the real problem, which is of course frivolous lawsuits. Finally, Mr. Speaker, the substitute amendment does nothing to address the problem of forum shopping and that is at least half the problem. We simply cannot continue to allow trial attorneys to flock to counties that will award unreasonably high verdicts to any plaintiff who walks in the door. This does too much damage to many Americans and it is, quite frankly, time to put a stop to this type of abuse. Mr. Speaker, I urge my colleagues to oppose to substitute amendment and vote yes on the underlying bill which would deter lawsuit abuse.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Chairman, I thank my colleague from Texas for yielding me this time. Mr. Chairman, I frankly cannot think of another time when I have disagreed with my friend from Ohio (Mr. Oxley), but I do oppose this amendment. We simply should not put the private interests of a few financial institutions ahead of the public good and the security of the American people. This amendment would allow matricula cards, which are primarily used by illegal immigrants, to be accepted in the United States. Giving illegal immigrants an identification card encourages them to come to the United States and, of course, makes it easier for them to stay. That is why the FBI has testified against the use of these matricula cards and why they pose a grave threat to the security of the United States. How regrettable that at the very time when we should discourage illegal immigration and deter those who would enter our country to do us harm, we would consider an amendment to undermine the PATRIOT Act and give terrorists and others the opportunity to exploit our laws for their own evil purposes. As a former chairman of the Subcommittee on Immigration, I recommend that my colleagues oppose this amendment and put the interests of Americans first.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Chairman, first of all, I would like to thank the gentleman from Ohio (Chairman Regula) for yielding me time. Mr. Chairman, I would also like to say very rarely, if ever, have I ever disagreed with my friend from Texas (Mr. Neugebauer) before, but I do oppose this amendment today. The intent of this amendment is to ensure that the National Institutes of Health is prudent about which grants are funded through their peer-review process. While I agree with this intent, I do not think the amendment accomplishes that goal. For instance, the University of Texas grant currently under discussion has already been funded and completed in previous fiscal years. Furthermore, any discussions about follow-up funding do not pertain to the Labor-HHS appropriations bill currently under consideration. This project has received funding for a second study, but it was awarded by the National Science Foundation in the VA-HUD appropriations bill, which has not yet been brought to the House floor for consideration. Mr. Chairman, I encourage my colleagues to vote against this amendment and instead focus our efforts on reforming the National Institutes of Health grant selection process.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, The New York Times has repeatedly hammered Republicans for their get-out-the-vote efforts involving churches, going so far as to suggest that their tax-exempt status should be questioned. One reporter, David D. Kilpatrick, has written four stories on this topic in the past few months, implying that Republicans' relationship with churches somehow is improper. Yet when former President Bill Clinton recently gave a politically motivated anti-Republican speech at the Riverside Church in New York City, the Times was not concerned. As the election draws near, the liberal bias of the media continues to grow worse. The American people deserve to hear balanced and factual news. Beginning next week and continuing until the November elections, I will announce a weekly award for the worst example of a biased liberal media report, whether print or electronic.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, I would like to express my appreciation to President Bush for the good news he has given all Americans. Thanks to his efforts to combat terrorism, terrorists around the world are on the run. Thanks to his economic initiatives, more than one million new jobs have been created in the last several months. Thanks to his education legislation, America's children are doing better in school. Thanks to his Medicare reform, seniors pay less for prescription drugs. Thanks to his tax relief, every taxpayer has more to spend on their family's needs. Yet, many of the President's opponents, frankly, hate him and the national media is biased against him. Why does the President's good news bring out the worst in others? Well, I do not know, but I do have a hunch that most Americans will give the President their heartfelt thanks on Election Day.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, I thank the chairman of the Committee on the Judiciary, the gentleman from Wisconsin, for yielding me this time. Mr. Speaker, all Americans are entitled to a fair hearing before independent-minded judges whose only allegiance is to the law. However, over the last several years we have witnessed some judges wanting to determine social policy rather than interpret the Constitution. They seem to be legislators, not judges; promoters of a partisan agenda, not wise teachers relying on established law. Judicial activism has reached a crisis. Judges routinely overrule the will of the people, invent new rights, and ignore traditional morality. Judges have redefined marriage, deemed the Pledge of Allegiance unconstitutional, outlawed longstanding religious practices, and imposed their personal views on all Americans. Fortunately, there is a solution. The Constitution empowers Congress to say that some subjects are off-limits to Federal courts. The constitutional authority authorizing Congress to restrain Federal courts, in fact, has been used before, and it should be used again. The legislation being considered today preserves the right of State courts to consider the constitutionality of the Defense of Marriage Act, DOMA. It prevents Federal judges from ordering States to accept another State's domestic relations policy, an area of the law historically under the jurisdiction of the States, not the Federal Government. While the bill does not dictate any conclusions about DOMA, the vast majority of States have enacted laws that support DOMA. We need to protect the right of the voters of those States to define marriage as they see it. When Federal judges step over the line, Congress has a responsibility to drop a red flag. On behalf of the American people, we should vote for this legislation because it rightfully restrains Federal judges who threaten our democracy.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, I am happy to cosponsor with Representative Gonzalez legislation that designates the Federal building and courthouse located in downtown San Antonio, Texas, as the ``Hipolito F. Garcia Federal Building and United States Courthouse''. Judge Hipolito Garcia--known to his friends as ``Hippo''--led an amazing life and career. He was born to immigrant parents in downtown San Antonio, just two blocks from the United States Courthouse where he served as a United States District Judge for over 20 years. Despite the challenges of learning English, and of being one of the few Hispanic students at his high school, he excelled and graduated as the most popular member of his class. Judge Garcia served our nation in the U.S. Army in World War II. He went on to receive a law degree from St. Mary's University and then became a respected member of the San Antonio legal community. After serving as a County Court-at-Law judge, and then as a State District Court judge in Bexar County, Judge Garcia was appointed a federal judge in the Western District of Texas. He served on that bench more than twenty years. In addition to his professional accomplishments, Hippo Garcia was a light in our community. He befriended many young attorneys, sharing his time, his knowledge, and his innumerable stories. Judge Garcia loved the law and our hometown of San Antonio. It is fitting that we should name the federal courthouse in his honor. I hope my colleagues will join me in support of this legislation. If my colleagues or constituents want to know more about this remarkable man, I've made a part of the record a eulogy given by a good friend, James R. Nowlin, a federal judge now on senior status. It does strike me that while Judge Nowlin was in good company with Judge Garcia, the reverse was true as well. [January 19, 2002]

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Chairman, I support H.R. 3574, the Stock Option Accounting Reform Act, which preserves broad-based stock options. It is vital that we preserve these incentives to promote stock ownership for millions of workers as we try to fulfill President Bush's goal of creating an ``ownership society.'' In my home state of Texas, numerous high-tech companies offer stock options to attract the best and the brightest employees. Options have become a vital tool used to attract educated and highly-skilled employees to companies both in Texas and elsewhere. Broad-based employee stock option plans give employees at all levels a chance to own a ``piece of the rock.'' This in turn fuels innovation and the entrepreneurial spirit and increases productivity, because employees feel as though they have a vested interest in the success of the company. However, the Financial Accounting Standards Board wants to change the rules in a way that would make it more difficult for companies to continue offering stock options to their rank-and-file employees. Passage of H.R. 3574 is essential in our efforts to create more jobs and growth in the high tech sector of our economy. It would be a huge mistake to discourage companies from offering stock options. Many of our international competitors are increasing the use of stock options to gain competitive advantage. So they are a vital tool to recruit and retain high tech workers in America.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, some of us have been saying it for years, there is a liberal bias in the media. Last weekend, we witnessed a brief moment of candor. Evan Thomas, the assistant managing editor of Newsweek Magazine, admitted on a radio station that, ``The media, I think, wants Kerry to win. And I think they are going to portray Kerry and Edwards, I am talking about the establishment media, not Fox, but there is going to be this glow about this that is going to be worth maybe 15 points.'' Let me repeat the words of this top Newsweek editor. ``The media, I think, wants Kerry to win, and they are going to portray Kerry and Edwards in a certain way to help elect them.'' He says, ``The media bias is worth 15 points in the polls.'' In other words, without media bias, President Bush would be cruising to a landslide election. Mr. Speaker, the biased media is getting dangerously close to becoming a real threat to our democracy.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Chairman, I support the King Amendment, which would designate funds to enforce a section of the United States Code that has been law since 1996. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, prohibits states and localities from refusing to share information with the Federal government on the immigration status of individuals. Some localities don't allow their officers to report the illegal status of criminal aliens to the Federal government. This is a direct violation of Federal law and hinders our efforts to remove criminal immigrants from the United States. It turns these localities into resorts for illegal immigrants. The Federal government cannot do its job of deporting criminal aliens if law enforcement is not telling the Federal government who these individuals are. This results in a situation where criminal aliens are arrested, jailed, and then released into our communities where they commit more crimes. When State and local law enforcement officers arrest someone for a crime, and it becomes apparent that the person is an illegal alien, this should be reported to the Federal government so the individual can be deported. To hide the illegal status of a criminal alien only means more crime. This amendment does nothing to change existing immigration law. This amendment simply requires the Federal government to enforce current law.

Mr. SMITH of Texas. Mr. Chairman, I thank the gentleman from Virginia (Chairman Wolf) for yielding me this time. Mr. Chairman, I oppose the Sanders amendment which would make libraries and bookstores a sanctuary for terrorists. There are many misconceptions about the PATRIOT Act, but section 215 has received an unfair amount of criticism. Section 215 covers access to business records. Library records, among other types of business records, have always been accessible under this provision. These records have been subject to subpoenas by grand juries for more than 30 years. For example, in 1997 a murder case in Florida allowed a grand jury to subpoena the records from the public libraries in Miami. Section 215 actually provides more protections than the subpoena powers of grand juries. First, this provision does not apply to ordinary citizens engaging in ordinary criminal activity. In order to conduct a search of records, the FBI must have a court order. Second, there are narrow restrictions on when such a record search may take place. It can only be used to obtain foreign intelligence information concerning a noncitizen of the United States or to obtain information relating to international terrorism or clandestine intelligence activities. Again, this type of record search is not available in ordinary crimes or even for domestic terrorism. Library records can provide a legitimate source of information on individuals planning terrorist attacks against us. If we exempt library and book store records from foreign intelligence investigations, then terrorists will know exactly how to hide what they are doing. If this amendment passes, terrorists will know that if they use computers at taxpayer-funded public libraries, the FBI would be powerless to get records of their terrorist activities. When drug dealers or crime syndicates use these computers, these very same computers, these records have always been available to grand juries. Why not the terrorist records as well? Mr. Chairman, finally, I would like to add that this is an issue that should be considered by the Committee on the Judiciary, not as an amendment to an appropriations bill.

Mr. SMITH of Texas

Mr. SMITH of Texas. Mr. Speaker, so Senator Kerry has picked Senator Edwards as his running mate. That means the Senator with the most liberal voting record has picked the person with the fourth most- liberal voting record. That does not sound like mainstream to me, and certainly their views do not represent the majority of the American people. Both Senators Kerry and Edwards voted against the ban on partial birth abortion. Both have opposed all of the recent tax relief legislation. Both Senators voted against sending our troops in Iraq and providing them with body armor, and both favor amnesty for illegal immigrants. Mr. Speaker, Senators Kerry and Edwards are out of tune, out of line, out of touch, and out of step with most Americans.