C.  Children’s Internet Protection Act

Unconstitutional, Court Rules

 

      A three-judge federal panel in the Eastern District of Pennsylvania struck down the Children’s Internet Protection Act (CIPA) in May 2002.  American Library Association v. United States, 201 F. Supp. 2d 401 (E.D.  Pa. 2002).  CIPA was Congress’s most recent attempt to restrict access to sexually explicit images and other disfavored content on the Internet.  However, the court viewed  the law as an unconstitutional infringement on the rights of citizens to receive and access information in public libraries without government interference.  The court vindicated library professionals’ conclusion that Internet filters were an ineffective device that censored vast amounts of constitutionally protected speech.  The ruling also reinforced prior legal decisions providing full First Amendment protection to the Internet.

 

Background

      The Children’s Internet Protection Act became law on Dec. 21, 2000 after Sen. John McCain (R-Ariz.) attached the controversial measure to the 2001 Labor, Health and Human Services & Education Appropriations bill.  CIPA mandated the use of filters on all Internet computers located in libraries and schools receiving universal service discounts (“e-rate discounts”), Library Service and Technology Act funding, or ESEA Title III funding, regardless of the age of the user or whether the computer was used by patrons or staff.  In addition, CIPA required libraries and schools to certify to the government that filters were installed and used on all Internet computers. The law allowed librarians to disable the filtering software for adults if the purpose was to provide access for “bona fide research or other lawful purposes.” 

      Members of the American Library Association (ALA) saw CIPA as an attack on the essence of American librarianship and its mission to provide the public with unfettered access to all information and materials available through the nation’s public libraries.  As a result, the ALA and the Freedom To Read Foundation decided to challenge CIPA in the courts on behalf of public libraries.   The American Civil Liberties Union, representing several other library groups and Internet content providers, also sued to overturn CIPA.  On March 20, 2001,  the groups filed two lawsuits in the federal district court in Philadelphia:  American Library Association v. United States and Multnomah County Library System v. United States. 

      The twin lawsuits were assigned to district court Judge John Fullam and consolidated under American Library Association v. United States.  Because Congress required expedited review of any constitutional challenge to CIPA, the case had to be heard by a panel of three judges drawn from the U.S. District Court for the Eastern District of Pennsylvania and the U.S. Court of Appeals for the Third Circuit.    Chief Judge Edward Becker of the Third Circuit and district court Judge Harvey Bartle, III joined Judge Fullam on the panel.

      The lawsuit challenged CIPA on several grounds.  It claimed, first, that CIPA was facially unconstitutional because it conditioned public libraries’ access to federally sponsored funding and discounts on the acceptance of content and viewpoint restrictions on speech that otherwise would be available to library patrons.  In addition, the lawsuit asserted that CIPA’s requirements were not the least restrictive means of accomplishing the government’s interests; that CIPA represented a prior restraint on constitutionally protected speech; and that CIPA’s “disabling” provisions, vesting librarians with unfettered discretion over patrons’ access to the Internet, chilled patrons’ right to communicate and receive protected expression anonymously.

      The trial commenced on March 25, 2002.   The court heard evidence from librarians and library patrons about librarianship, the consequences of mandatory filtering, and effective alternatives to filtering that preserve free access to information on the Internet.  Experts such as Dr. Geoffrey Nunberg of Stanford University and Benjamin Edelman of Harvard’s Berkman Center on Internet Law testified about the technology of filtering and why software could never accomplish what CIPA requires without blocking access to large amounts of constitutionally protected information.  

      When the government declined to introduce any testimony from companies designing and selling filtering software, the ALA and ACLU introduced the companies’ deposition testimony.  The depositions revealed that filtering companies fail to apply the legal definitions of obscenity or “harmful to minors” to block materials, but instead use their discretion to block a broad range of information that does not fall under those definitions.

 

Unanimous Decision

      On May 31, 2002, the three-judge panel issued a unanimous 195-page opinion ruling the Children’s Internet Protection Act unconstitutional.  The court held that “[b]ecause 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.”  In addition, the court held that while the government has a compelling interest in preventing access to obscenity, child pornography, and material harmful to minors, the CIPA statute was neither narrowly tailored to achieve that result nor the least restrictive means available. 

      The Court also held that the provisions of CIPA permitting librarians to disable Internet filters did not cure the constitutional infirmity of the statute.   Requiring a patron to request access to constitutionally protected speech significantly burdened the patron’s First Amendment right to access information, the court said.  It issued a permanent injunction barring the FCC and the Institute for Museum and Library Science from withholding federal e-rate discounts and grants from public libraries on the grounds that the libraries had not complied with CIPA. 

      In reaching its decision, the court cited uncontested evidence demonstrating that filtering software erroneously blocked tens of thousands of Web pages containing constitutionally protected speech, including pages containing information on sports, religion, politics, and medical issues.  It found that none of the available filtering programs can make the judgments necessary to determine whether a visual depiction fits the legal definitions of obscenity, child pornography, or harmful to minors, as required by CIPA.  The court determined that “it is currently impossible, given the Internet’s size, rate of growth, rate of change, and architecture, and given the state of the art of automated classification systems, to develop a filter that neither underblocks nor overblocks a substantial amount of speech.” 

      The court concluded that the government has a compelling interest in preventing access to illegal speech, and may have an interest in protecting persons from exposure to sexually explicit speech that is patently offensive.  Nonetheless, the court emphasized that “[t]o the extent that speech has serious literary, artistic, political, or scientific value, and therefore is not obscene under the Miller test of obscenity, the state’s interest in shielding unwilling viewers from such speech is tenuous.”   In addition, the court held that the government may not justify Internet filtering as a way of minimizing criminal or inappropriate conduct by individuals, as the law already imposes sanctions on illegal conduct.   

      Most importantly, the court found that the public library is a limited public forum for the receipt of information and creates a limited public forum when it offers Internet access.   “We are satisfied that when the government provides Internet access in a public library, it has created a designated public forum.”  As a result, any restrictions placed upon the receipt of information in public libraries, such as filters, are subject to strict scrutiny and must be narrowly tailored to further a compelling government interest. 

      The panel determined that CIPA’s filtering mandate was not narrowly tailored,  given the substantial amount of constitutionally protected speech blocked by filtering software.  The court pointed out that many less restrictive alternatives exist that allow public libraries to protect children from material that is illegal or inappropriate for them.  These include education and Internet training courses; implementation and enforcement of Internet-use policies; privacy screens and terminal placement to protect both patron privacy and the unwilling viewer; and giving families the choice of using filters for their own children at the public library.

      Finally, the court considered whether the provision allowing librarians to disable the filters for “bona fide” research cured CIPA’s constitutional defects.  It ruled that having to ask a librarian’s permission to access blocked content violates the First Amendment, due to the inherent stigma and chilling effect involved in revealing an interest in a blocked Web site and requesting permission to see the site.  

      As a result of the decision by Judges Becker, Fullam, and Bartle, public libraries receiving federal funding or discounts do not have to comply with CIPA or install filters on their Internet computers.   The court’s conclusions about the nature of filtering and the constitutionality of mandated filtering in a public library suggest that mandatory filtering by any public library may be constitutionally problematic.

      On June 20, 2002, the Department of Justice filed a formal notice of appeal with the U.S. Supreme Court, as required by the federal statute permitting expedited review.   The parties have filed jurisdictional statements with the Supreme Court and it is anticipated that the Court will place the case on its 2002-03 docket for briefing and argument.

 

--Judith F. Krug and Deborah Caldwell-Stone