Developments in Internet Law: The Internet and Public Libraries

By Kirsten Murphy, Silha Fellow

On May 31, 2002, a federal court special panel in Philadelphia ruled that the Children's Internet Protection Act (CIPA) signed by President Clinton in 2000, is unconstitutional and violates the First Amendment. The Act, codified as Pub. L. No. 106-554, required public libraries to implement software that filters sexually explicit content. By July 1, 2002, any library refusing to implement the software would have risked the loss of federal funding.

The case, American Library Association v. United States, 2002 U.S. Dist. LEXIS 9537, began when the plaintiffs, a group of libraries, library associations and civil liberties groups, (collectively the American Library Association or ALA) brought suit in federal court, alleging that the Act violates the First Amendment. The ALA argued that the CIPA is facially unconstitutional because it induces libraries to violate the First Amendment rights of patrons and creates an unconstitutional condition where the receipt of federal money is tied to the relinquishment of a constitutional right. In the alternative, the ALA claimed that even if the CIPA was not found unconstitutional on those grounds, the law is an impermissible prior restraint on speech.

The government argued that the Act served the interest of protecting children from viewing harmful materials on the Internet. The filtering software is highly effective, claimed the government, and is not required to be flawless. In addition, the government contended, libraries already engage in filtering when they purchase books for their collections.

Third Circuit Court Judge Edward R. Becker delivered the opinion of the three-judge panel. In deciding that the CIPA violates the First Amendment, the court relied on a Supreme Court decision, South Dakota v. Dole (483 U.S. 203 (1987)). In Dole, the Court set forth four categories of constraints on Congress's spending power. The fourth category bars Congress from creating an unconstitutional condition - that is, withholding federal funds from those who refuse to give up a Constitutional right. The panel was faced with the issue of whether the CIPA required libraries to infringe on the First Amendment rights of patrons in order to receive federal funds.

The court found that in addition to creating an unconstitutional condition, the Act's library filtering requirement was overbroad because it covered protected as well as unprotected speech. In addition to blocking sexually explicit material, the filtering software blocks legitimate sites, which may contain information about topics such as breast cancer and homosexuality. The court also concluded that the filters are underinclusive and could allow access to some pornographic material.

Although the court expressed sympathy for the government's position and interest in protecting minors, it concluded that the current filtering software is simply too crude to pass scrutiny under the First Amendment. "It is currently impossible, given the Internet's size, rate of growth, rate of change, and architecture and given the state of automated classification systems, to develop a filter that neither under blocks nor over blocks a substantial amount of speech," Judge Becker wrote.

The court also found that the Act was not narrowly tailored to serve the government's interest in preventing minors from accessing obscene or pornographic web sites. "Where the government draws content-based restrictions on speech in order to advance a compelling government interest, the First Amendment demands the precision of a scalpel, not a sledgehammer. We believe that a public library's use of the technology protection measures mandated by CIPA is not narrowly tailored to further the governmental interests at stake."

Less restrictive alternatives to the filtering technology exist, such as providing parents with filters to use when their children are surfing the Internet on library computers, or creating a library policy on Internet use. Libraries could also position computer monitors to obscure screen content, the court said.

Under the terms of the Act, any appeal of the federal court's decision must be made directly to the Supreme Court, which is required to review the appeal. The Justice Department is said to be reviewing the case in consideration of an appeal.

American Library Association is the third decision to overturn similar Congressional efforts to regulate Internet access. Both the 1996 Communications Decency Act and the1998 Child Online Protection Act were struck down by the judiciary.

The provisions of the Act that apply to Internet filters in public schools were not affected by the federal court's ruling.

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This page contains a single entry by cla published on November 11, 2009 12:52 PM.

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