C.   Library Groups Challenge Federal Law Requiring Internet Filtering

     Meanwhile, individuals attempting to use the courts to impose mandatory filtering met with mixed success.  In California, the court of appeal rejected one parent’s attempt to limit public library patrons’ access to the World Wide Web, while Minneapolis librarians obtained a preliminary determination from the Equal Employment Opportunity Commission that open Internet access may have violated federal workplace harassment laws.

     Opponents of open Internet access succeeded in imposing federally mandated speech restrictions on public libraries and schools by attaching the Children’s Internet Protection Act to the 2001 Labor, Health and Human Services, Education Appropriations bill.  Signed into law on Dec. 21, 2000, CIPA represents a new breed of speech restriction, attempting to avoid the constitutional infirmities of previous measures that would have imposed direct limitations on Internet speech. 

     CIPA forces public libraries and schools receiving universal service discounts (“e-rate” discounts), Library Service and Technology Act funding, or ESEA Title III funding to install filtering software on all computers connected to the Internet.  The technology must be set to block any visual depiction categorized as obscenity, child pornography, or material “harmful to minors.”  Under the law, libraries and schools subject to CIPA’s limitations must use these filters whenever a computer accesses the Internet, regardless of the user’s age or whether the user is a patron or staff member.  In addition, the law requires institutions to develop Internet use policies and to hold at least one public hearing or meeting to permit community comment on the Internet use policy.

     Congress passed the CIPA legislation despite a report issued by its own COPA (Children’s Online Protection Act) Commission discouraging the use of filters as a means of protecting children from inappropriate Internet content.  The American Library Association (ALA), after intense discussion among its members and leaders, concluded that the Act was an unconstitutional infringement on the right of patrons to access constitutionally protected speech.

     The ALA, in concert with the Freedom To Read Foundation, several state library associations, and local library patrons, filed a federal lawsuit challenging CIPA on March 20, 2001 in the Eastern District of Pennsylvania.  The complaint asserts that CIPA violates the First and Fifth amendments because it makes access to funding and discounts for Internet use in public libraries contingent on the acceptance of content and viewpoint restrictions on constitutionally protected speech.  That, in turn, burdens the right of libraries, their patrons, and those speaking on the Internet to communicate and receive protected speech. 

     The lawsuit also asserts that under well-established First Amendment principles, the government may not subsidize a forum or a medium of expression, such as the Internet in a public library, and then attempt to suppress a category of protected speech on that medium based on the speech’s content or viewpoint.  

     The American Civil Liberties Union (ACLU), representing several other library groups and Internet content providers, also sued to overturn CIPA on similar grounds.  Subsequently, the district court consolidated the ALA lawsuit and the ACLU lawsuit before a special three-judge panel.  The case went forward under the caption American Library Association v. United States, and was set for trial on March 25, 2002.  People for the American Way assisted in the case and provided co-counsel to represent patrons and patron groups.

     One month after the plaintiffs filed the lawsuit challenging CIPA, the Federal Communications Commission issued rules requiring recipients of e-rate discounts and other federal funding to certify compliance with CIPA no later than Oct. 28, 2001 -- even though the law was not in effect when the FCC and other government agencies approved e-rate funding requests for 2001.  ALA attorneys negotiated changes with the government, permitting libraries to delay actual installation of filtering technology until July 2002.   

     Attorneys for the government then filed a motion to dismiss, arguing that CIPA’s mandate to install filters or forego federal financial assistance is a permissible funding condition, not a direct governmental prohibition on speech.  The three-judge panel denied the government’s motion to dismiss.  Any further enforcement of CIPA in 2002 will likely depend on the outcome of the trial.

Other Federal Legislation

     Even as the ALA and ACLU litigated the constitutionality of the Children’s Internet Protection Act in federal courts, other members of Congress introduced new bills to further restrict Internet access or Internet content.  One, H.R. 1846, dubbed the Who Is E-Mailing Our Kids Act, proposed further amendments to CIPA that would require public schools and libraries receiving universal service discounts to install blocking software to prevent students and patrons from sending anonymous e-mail or accessing the Internet anonymously.  Like CIPA, H.R. 1846 would deny e-rate discounts and funding to schools and libraries that do not certify that they are blocking anonymous use of the Internet.

     A second bill, the Dot Kids Domain Name Act of 2001 (H.R. 2417),  reverses the concept of filtering: The measure requires the Internet Corporation for Assigned Names and Numbers (ICANN) to create a “safe haven” for children on the Internet by establishing a new top level Internet domain, “.kids.”  The proposed law also mandates a program to publicize the domain and to inform parents and others about the ability to use filtering software to limit Internet access solely to the .kids domain.  (See Chapter F in this section.)

     At press time, both measures remained in committee and there was no fixed date to take up either bill. 

     In 2001, legislatures in 28 states considered bills to force public schools and libraries to install filtering technology on their computers.  Among the states taking up mandatory filtering legislation were Arkansas, Colorado, Florida, Hawaii, Illinois, Maine, Massachusetts, Mississippi, Missouri, North Carolina, and Virginia.  Other state legislatures considered measures that aped the Children’s Internet Protection Act, tying eligibility for state funding to the use of blocking software on school and library computers.  Such bills were introduced in California, South Carolina, Montana, New Jersey, Oklahoma, Pennsylvania, and Texas.   

     The majority of these bills remained pending before committee, or were postponed to a later legislative session.  The legislatures in Montana and Illinois defeated the measures proposing mandatory filtering, while Arkansas and Virginia passed laws requiring schools to install blocking software.  Arkansas’s law applies only to public schools; Virginia’s mandatory filtering measure applies to public schools and to any private school that meets Virginia’s compulsory school attendance law and accepts federal funds for Internet access.

     On May 30, 2001, South Carolina passed its version of a “mini-CIPA,” a proviso inserted into the state’s annual budget that required libraries in South Carolina to install filters or lose one-half of their state funding.  Controversy arose when trustees of the South Carolina State Library Board voted not to withhold funds from libraries until lawmakers clarified who would be responsible for enforcing the law and which libraries would be affected. 

     The state attorney general then issued an opinion that the new filtering proviso was constitutional and binding on all libraries receiving state funds except those libraries in higher education.  Only then did the state library board vote to withhold funds from any library that failed to certify compliance with the new law. 

     Following three years of litigation, the California Court of Appeal First Appellate District ordered the final dismissal of the lawsuit filed by plaintiff Kathleen R. against the City of Livermore, ending one parent’s attempt to force the local public library to install filters on its Internet computers.  The plaintiff, who remained anonymous throughout the course of the lawsuit, filed her original complaint in May 1998 after her 12-year-old son used one of the library’s unfiltered Internet stations to download sexually explicit photos.

     After her suit was dismissed twice by the Alameda County Court, Kathleen R. appealed to the California Court of Appeal.  Following an extended period of briefing by the plaintiff, the City of Livermore, and a wide range of amici groups, including the ACLU, People for the American Way, and the Freedom To Read Foundation, the court heard oral argument on Jan. 23, 2001.  On March 6, a three-judge panel for the appeals court upheld the lower court’s decision, dismissing Kathleen R.’s complaint.

     The panel agreed that Section 230 of the Telecommunications Act of 1996 provided libraries with immunity from lawsuits seeking to hold libraries liable for content provided by a third party and accessed through the Internet.  “[T]here is a crucial distinction between providing minors with harmful matter on one hand, and maintaining computers where minors may obtain such matter, however easily, on the other,” the court said. 

     The appeals court also held that Kathleen R.’s son could not maintain an action against the library for denial of substantive due process.  It rejected Kathleen R.’s theory that the library and its staff had sufficient control and custody over children using its services to impose an affirmative duty to protect them from the harms alleged by the plaintiff. 

     The court also rejected her claim that the library’s Internet policy violated her son’s right to safety and protection by deliberately exposing her son to the alleged dangers of Internet pornography.  The court held that the library’s policy did not compel minors to use the library’s computers, nor did it create any of the offensive materials accessible through those computers.  The panel of judges did not reach any of the constitutional issues raised by the amici.

     Although Kathleen R. and her attorneys promised to appeal the decision to the California Supreme Court, they failed to file the necessary notice of appeal within the time allowed by California law.  The California Court of Appeal order dismissing her claims is final.

     In May 2000, a group of librarians employed by the Minneapolis Public Library filed complaints with the Equal Employment Opportunity Commission’s regional office in Minneapolis, alleging that the library’s policy of permitting patrons unfiltered Internet access had created a hostile work environment.  The librarians claimed that patrons were constantly accessing and printing out sexually explicit materials on unrestricted Internet computers.  The librarians would then encounter the materials when the patrons would leave the images on the screen or leave hard copies in printer trays.

     The librarians’ use of workplace harassment law to force the Minneapolis library to install filters represents a new tactic undertaken by proponents of Internet filtering.  Building on precedents that used workplace and educational harassment law to remove works of art from government buildings and to impose speech codes in educational and employment settings, conservative groups such as the Family Research Council are encouraging individuals to use sexual harassment law to limit access to sexually explicit materials. 

     The Minneapolis Public Library vigorously defended its policy of providing patrons open access to the Internet, and took steps to address the viewing of sexually explicit materials by patrons.  Privacy screens were installed, time limits placed on computer usage, and patrons required to show identification before using the library’s Internet terminals.  The complaining librarians, while acknowledging that the new policies had eliminated much of the problem, insisted that the library should install filters to eliminate any chance that they would encounter sexually explicit material while working. 

     After a year-long inquiry into the librarians’ complaints, the Minneapolis EEOC office issued its determination.  Without disclosing any findings of fact or explaining how it reached its decision, the EEOC concluded that there was reason to believe that workplace harassment statutes had been violated.  It recommended that the Minneapolis Public Library reach a settlement with the complaining librarians that would pay money damages of $75,000 to each.  

     Negotiations continue between the Minneapolis library and its employees, but a settlement appears unlikely at this time.  Because the EEOC’s decision is merely a preliminary finding, and not a decision reached by a judge or jury, the librarians would have to go to court to enforce the EEOC’s determination.  The EEOC has not indicated whether it would initiate a lawsuit on behalf of the librarians, or whether it would simply provide the librarians with documents permitting them to sue the Minneapolis Public Library in federal courts.