High court leans toward allowing library Net filtering

Thursday, March 6, 2003

Has the Supreme Court finally been presented with a federal law restricting the Internet that it won’t find unconstitutional under the First Amendment?

It appeared that way to many who listened to oral arguments yesterday in the case United States v. American Library Association, a challenge to the 2001 Children’s Internet Protection Act. The law requires public libraries receiving federal funds for Internet access to install software that blocks pornography. Libraries are allowed to disable the software in individual cases for adults for “bona fide research or other lawful purposes.”

Ever since Congress passed the Communications Decency Act in 1996, the high court has struck down several federal criminal laws that sought to limit the availability of objectionable material on the Internet for children. In the process, the Court also gave the Internet a prominent place in the First Amendment pantheon, stating that it deserved the highest level of protection from government intrusion.

But the current law carries no criminal penalties, instead tying the restrictions to federal funding. Because of that distinction and also because of the unique setting of the public library, justices appeared more willing to accept the government’s defense of the legislation this time around.

The law applies both to public libraries and their public school counterparts, but only the public library section was challenged by librarians. They claimed that the law forces libraries to violate their patrons’ First Amendment rights. A three-judge panel in Philadelphia struck down the law, finding that even as a condition of receiving federal funds, the restrictions were unconstitutional.

Solicitor General Theodore Olson, arguing in favor of the law, told the Court yesterday that what Congress required is merely an electronic version of what libraries do all the time: choosing which books to buy and which not to. Just as libraries decide not to buy certain books or magazines because of adult content, Olson said they should be able to block online material as well. “The First Amendment does not require libraries to sponsor the viewing of pornography,” Olson said.

Justice David Souter protested that Internet blocking is unlike selecting books. When it chooses not to buy a book, Souter said, “It knows what it is deciding not to do. Here it does not know.” The blocking software is the creation of others, and thus, Souter said, “the inevitable price of this is blocking more than the statute requires.”

Olson acknowledged that blocking technology is not perfect, but that the requirement to use it is “reasonable and rational.”

Souter also said that libraries screen books in part because of limited shelf space — a problem that has no parallel in the case of the Internet. “A library can’t have every book. They’ve got to exclude some. Not (so with the) the Internet.”

Other justices also sought to counter the analogy between book selection and Internet blocking. “This is a case about the Internet. It is not a case about books,” said Justice John Paul Stevens. Justice Anthony Kennedy, noting that the Internet produces more than a million new sites daily, said, “It’s a whole new medium. It’s not like a library.”

But apart from these comments, other justices were largely supportive of the law in their comments and questions.

On behalf of the library group, Jenner & Block partner Paul Smith argued that when it comes into a public library, the Internet is “the most pure form of public forum you can imagine.” As such, government restrictions have to withstand strict scrutiny, he argued.

Several justices seemed skeptical. Justice Antonin Scalia said the fact that the restrictions were tied to federal funding required a different analysis, and Justice Sandra Day O’Connor said Court precedent required caution before applying public-forum analysis to new situations.

Justice Stephen Breyer asked whether a school library was also a public forum. Smith tried to qualify his answer but when pressed by Breyer, he said it was. “So the Addison Hill Elementary School has to allow the worst kind of stuff there is,” Breyer said skeptically. Smith said restrictions would still be allowed because of the youth of the audience.

Breyer persisted, arguing that asking a library to disable the blocking technology was not a “great burden.” Smith said it would be a burden, because patrons would have to explain their reason for needing unblocked material and might be “stigmatized” as a result. The unblocking process might also delay a patron’s research.

“That’s not atypical in research,” said O’Connor, analogizing it to a library obtaining a requested book from a neighboring library.

Smith said the federal government had “no business” using its spending power to interfere with professional judgments by librarians about the material available to the public. He also pointed out the crude state of the technology, which blocks access to legitimate sites about breast cancer, sexuality, even politics: “A huge percentage of sites that are blocked are not illegal even for children.”

But O’Connor deflated that argument, expressing doubt that the Court should base its constitutional finding on software flaws that could be fixed in time.

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