by David L. Hudson Jr., First Amendment Scholar
September 13, 2002
The Internet provides unparalleled access to all sorts of material from the informative to the titillating. While providing minors with access to important educational material, the Net also operates as a portal to pornography and hate speech. Many parents, school officials and legislators want to limit children’s access to such harmful material.
One of the most common methods of attempting to control access to the Internet is through the use of filtering software that screens out objectionable material. Many software companies sell filtering programs designed to protect kids from online smut. Some of these include CyberPatrol, WebSense, X-Stop, Net Nanny and Bess.
In the hands of parents, the installation of filtering products raises no First Amendment concerns because there is no government involvement. But when public institutions such as schools and libraries install filtering software, First Amendment rights are implicated.
Various anti-censorship organizations, such as Peacefire and the former Project Censorware, have issued detailed reports showing that filters will often block access to constitutionally protected material. Sites dealing with breast cancer, abortion, prison rape, AIDS, safe sex and many others have been blocked. Even the sites of several members of Congress have been blocked.
Proponents of filtering in public institutions say that the software is necessary to prevent libraries from becoming gateways to online peep shows. They argue that the protection of minors is a compelling government interest of the highest order. Opponents counter that filtering software limits access to information and fails to distinguish between material that can be prohibited and material that is constitutionally protected.
In November 1998, a federal judge in Virginia struck down a policy that provided for the mandatory installation of filtering software on all computer terminals — adults’ and children’s — at the public library. The library board said that it adopted the policy to protect kids and to prevent sexually hostile environments at the library.
In Mainstream Loudoun v. Board of Trustees of the Loudoun County Public Library, U.S. District Judge Leonie Brinkema said the policy “offends the guarantees in the First Amendment.” The judge ruled that the board did not present enough evidence of harm to support a policy that would dramatically limit access to material in a public library.
Despite this federal court decision striking down the mandatory filtering policy, state and federal legislators have continued to press forward with filtering legislation.
In December 2000, Congress passed the Children’s Internet Protection Act — or CIPA — which requires public schools and public libraries to install a “technology protection measure” and to adopt an Internet-use policy in order to receive federal funds for Internet hookups.
The American Library Association and the American Civil Liberties Union filed separate lawsuits in a federal district court in Philadelphia. Both groups challenged the sections of the law dealing with public libraries, not public schools.
In its lawsuit, American Library Association v. U.S., the ALA wrote that the new law “presents public libraries with an impossible choice: either install mechanical, imprecise, and incredibly broad speech restrictions on Internet resources, or forgo vital federal funds to which the libraries are otherwise entitled.”
In its suit, Multnomah County Public Library v. U.S., the ACLU made similar objections, writing that the federal law “will thus force libraries to install a system of private, prior blind censorship that will transform Internet access at libraries from an equalizing and democratizing opportunity to a randomly censored medium that will no longer serve the communities that need it most.”
A special panel of three federal judges consolidated the cases and heard seven days of testimony in March and April 2002. The plaintiffs presented evidence showing that many commonly used filters restrict too much constitutionally protected material. One exhibit showed 395 Web sites blocked by filtering products. These included music sites, gay and lesbian magazines, a Planned Parenthood site, a plastic-surgery site and art galleries.
CIPA decision by federal panel
On May 31, 2002, the panel — 3rd U.S. Circuit Court of Appeals Judge Edward Roy Becker and federal district court Judges John Fullam and Harvey Bartle III — ruled in favor of the plaintiffs. The panel cited the plaintiffs’ evidence that the filtering programs “overblocked” or restricted access to constitutionally protected material: “We find that commercially available filtering programs erroneously block a huge amount of speech that is protected by the First Amendment.”
“At least tens of thousands of pages of the indexable Web are overblocked by each of the filtering programs evaluated by experts in this case, even when considered against the filtering companies’ own category definitions,” the panel wrote. “Because of the inherent limitations in filtering technology, public libraries can never comply with CIPA without blocking access to a substantial amount of speech that is both constitutionally protected and fails to meet even the filtering companies’ own blocking criteria.”
The government argued that Congress had the right under the spending power to tie federal funds to the libraries’ use of filtering programs. But the plaintiffs contended that the spending power could not be used to force libraries to violate the First Amendment. The government also argued that the use of filters presented no constitutional problem in part because it was similar to the editorial discretion that libraries must exercise every day concerning which books to acquire for their collections.
The court rejected this analogy, focusing on the fact that the library in providing Internet access had created a designated public forum. “In sum, the more widely the state opens a forum for members of the public to speak on a variety of subjects and viewpoints, the more vulnerable is the state’s decision selectively to exclude certain speech on the basis of its disfavored content, as such exclusions distort the marketplace of ideas that the state has created in establishing the forum.”
The panel concluded that public libraries had “created a public forum that provides any member of the public free access to information from millions of speakers around the world.”
According to the panel, there were several less-restrictive alternatives that the government could have used rather than banning speech under CIPA. These included adopting Internet-use policies coupled with Internet-use logs, requiring minors to use certain computers that are in direct view of library staff, placing unfiltered terminals in remote locations, and installing privacy screens or recessed monitors to prevent patrons from being exposed to material viewed by others.
Predictably, free-speech advocates cheered and anti-pornography groups jeered the panel’s decision. “The court today barred the government from turning librarians into thought police armed with clumsy blocking programs,” said Ann Beeson, litigation director of the ACLU’s Technology and Liberty Program, in a statement. “The court found that these programs are inherently flawed and will inevitably prevent library patrons all over the country from accessing valuable speech online.”
Supreme Court decision
Congress built into CIPA a provision for expedited review to the Supreme Court. The Justice Department appealed the federal panel’s decision to the high court, which on Nov. 12, 2002, agreed to review United States v. American Library Association. (The reversal of names in the case reflected that the United States was appealing the ruling.) The Court heard arguments on March 5, 2003, and delivered its decision on June 23.
The Supreme Court ruled 6-3 that CIPA did not violate the First Amendment. Chief Justice William Rehnquist wrote a plurality opinion, joined by three other justices, and Justices Anthony Kennedy and Stephen Breyer wrote separate concurrences.
Rehnquist rejected the idea that Internet access in a public library constituted a traditional or even limited public forum. Instead, he said, a public library is a place that is designed to provide research and educational materials for its patrons. Rehnquist reasoned that Congress could constitutionally attach the receipt of federal funds to the installation of library filters. “To the extent that libraries wish to offer unfiltered access, they are free to do so without federal assistance,” he wrote.
He also noted that libraries routinely exclude pornographic materials from their print collections. “Especially because public libraries have traditionally excluded pornographic materials from their other collections, Congress could reasonably impose a parallel limitation on its Internet assistance programs,” he wrote.
Justices John Paul Stevens, Ruth Bader Ginsburg and David Souter dissented, with Stevens and Souter writing separate opinions. Souter rejected the chief justice’s comparison of filtering out online pornography to a library not acquiring print pornography: “The proper analogy therefore is not to passing up a book that might have been bought; it is either to buying a book and then keeping it from adults lacking an acceptable ‘purpose,’ or to buying an encyclopedia and then cutting out pages with anything thought to be unsuitable for all adults.”
Justice Stevens focused on the “overblocking” problems associated with filtering programs — that much constitutionally protected material will be lost in the process. “In my judgment, a statutory blunderbuss that mandates this vast amount of ‘overblocking’ abridges the freedom of speech protected by the First Amendment,” he wrote.
The Court’s decision means that the vast majority of public libraries and schools, in order to receive federal funding, will filter the Internet.