Internet Filtering at Libraries and Free Speech

The Internet provides instant access to content located on servers all over the world. Some of that content is pornographic; some of it is obscene or otherwise illegal in the United States. As the Supreme Court recently observed in Ashcroft v. ACLU, 542 U.S. 656 (2004), blocking and filtering offensive and illegal content may be more effective than attempting to control such content at the supply end.

While the First Amendment protects the right of adults to access offensive but not illegal content, there has been concern over the ease with which the Internet makes pornographic content available to minors. Attempts to control this problem on the supply side, by regulating the providers of Internet content, ran into two problems: The First Amendment limits Congress’s authority to regulate content providers within the United States, and Congress lacks authority to regulate content providers outside the United States. In 1998, Congress addressed the problem from the demand side by enacting the Children’s Internet Protection Act (CIPA).

CIPA provides discounts of up to 90 percent on Internet access for qualifying schools and libraries under the federally funded e-rate or school and libraries discount, provided that those schools and libraries install filtering and blocking software. Administrators of institutions receiving subsidized Internet access must certify that the school or library

(1) is enforcing a policy of Internet safety for minors that includes monitoring the online activities of minors and the operation of a technology protection measure with respect to any of its computers with Internet access that protects against access through such computers to visual depictions that are

a. obscene

b. child pornography

c. harmful to minors

(2) is enforcing the operation of such technology protection measure during any use of such computers by minors (47 U.S.C. } 254(h)(5)(B))

A similar but less restrictive provision applies to adults: the school or library must make an identical certification, except that item III (protection against material harmful to minors) is not required. In addition, a school or library administrator or authorized person ‘‘may disable the technology protection measure concerned, during use by an adult, to enable access for bona fide research or other lawful purpose’’ (47 U.S.C. } 254(h)(5)(D)).

In order to carry out their obligations under CIPA, institutions receiving discounted Internet access are required to purchase and install ‘‘technology protection measures’’ (filtering programs) to filter or block Internet access to specified ‘‘visual depictions.’’ Each institution is also required to hold a minimum of one public meeting on Internet safety policies to gather input and feedback from community members. This requirement of one meeting was perhaps inspired by the ‘‘community standards’’ element of the Miller test for obscenity (413 U.S. 24).

Neither obscenity nor child pornography is protected by the First Amendment, but defining material ‘‘harmful to minors’’ in constitutionally permissible terms has always posed a problem. In CIPA Congress defined the term as including:

any picture, image, graphic image file, or other visual depiction that

1. taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion

2. depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals

3. taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors (47 U.S.C. } 254(h)(5)(G))

CIPA also includes a subtitle, the Neighborhood Children’s Internet Protection Act, requiring schools and libraries to adopt policies addressing areas such as minors’ access to inappropriate matter on the Web; their safety when using e-mail, chat rooms, and other direct electronic communications (such as instant messaging); and hacking. In keeping with the ‘‘community standards’’ element, the term ‘‘inappropriate for minors’’ is to be determined by a ‘‘school board, local educational agency, library, or other authority,’’ rather than by an ‘‘agency or instrumentality of the United States Government.’’ These locally adopted policies are not subject to review by these federal agencies or instrumentalities (47 U.S.C. } 254(l)).

CIPA’s potential for conflict with First Amendment rights led plaintiffs including the American Library Association to bring suit to enjoin its enforcement, at least as far as libraries and their adult patrons were concerned. With regard to libraries, the plaintiffs argued that CIPA required the imposition of content based restrictions on library patrons’ access to constitutionally protected speech. Although patrons could request the unblocking of access to blocked content, placing the burden on the library patron to make the potentially embarrassing request was likely to discourage many patrons from doing so. Also, filtering and blocking programs, inevitably imperfect, would block some content that Congress intended to permit while failing to block some content that Congress intended to restrict. The plaintiffs also argued that CIPA was an impermissible use of the spending power.

The district court issued the injunction requested by the plaintiffs (201 F. Supp.2d 401), and the case was appealed directly to the Supreme Court, which reversed the decision in June 2003. A four-justice plurality, with two justices concurring in the result, stated that CIPA neither violated the First Amendment nor attached an impermissible condition to Congressional exercise of the spending power.

Chief Justice Rehnquist, writing for the plurality, pointed out that ‘‘a public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of books to speak’’ (539 U.S. at 206). Most libraries, he continued, choose not to acquire pornographic books, and this decision is not subject to heightened scrutiny. ‘‘[B]ecause of the vast quantity of material on the Internet and the rapid pace at which it changes, libraries cannot possibly segregate, item by item, all the Internet material that is appropriate for inclusion from all that is not.’’ The use of software to exclude certain categories of content, Rehnquist stated, ‘‘is entirely reasonable’’ (539 U.S. at 208). The concurring justices also found the statute’s provision for unblocking at an adult patron’s request necessary and constitutionally adequate (539 U.S. at 214, 219-20).

AARON SCHWABACH

References and Further Reading

• Kolbert, Kathryn, and Zak Mettger, eds. Justice Talking: Censoring the Web: Leading Advocates Debate Today’s Most Controversial Issues. New York: The New Press, 2002.
• Lessig, Lawrence. Code and Other Laws of Cyberspace. New York: Basic Books, 1999.
• ———. The Future of Ideas. New York: Random House, 2001.
• Saunders, Kevin W. Saving Our Children from the First Amendment. New York: New York University Press, 2004.
• Schachter, Madeleine. Law of Internet Speech, 2nd ed. Durham, NC: Carolina Academic Press, 2002.

Cases and Statutes Cited

• American Library Association v. United States, 201 F. Supp.2d 401 (E.D. Pa. 2002); reversed sub nom United States v. American Library Association, Inc., 539 U.S. 194 2003
• Miller v. California, 413 U.S. 15 (1973)
• Child Online Protection Act, 47 U.S.C. } 231
• Children’s Internet Protection Act, 47 U.S.C. } 254(h)

See also Children and the First Amendment; Miller Test; Miller v. California, 413 U.S. 15 (1973); Obscenity; State Action Doctrine