Library filtering backers, foes foresee victory as Supreme Court takes case

Wednesday, November 13, 2002

WASHINGTON — As expected, the Supreme Court yesterday agreed to consider the constitutionality of the latest congressional effort to restrict Internet access in the name of protecting children. Advocates on both sides of the issue immediately predicted victory.

In the case United States v. American Library Association, the issue will be the Children’s Internet Protection Act of 1999, which requires all public and school libraries to use Internet filtering software as a condition for receiving federal funds for computers and Internet access. The filtering is supposed to prevent access to child pornography and “visual depictions” that are obscene or “harmful to minors.” The law also spelled out a fast-track process under which constitutional challenges to the law would head directly to the Supreme Court after being reviewed first by a three-judge federal court panel.

“The lower court described in detail just how flawed these Internet blocking programs are,” said Ann Beeson, litigation director for the American Civil Liberties Union’s Technology and Liberty Program. “We are optimistic that the Supreme Court will agree that the government cannot force adults to use technology that routinely blocks access to a wide range of valuable Web sites.”

Jay Sekulow, chief counsel for the American Center for Law and Justice, countered, “The First Amendment should not be used as a shield for pornographers at the expense of our children. It is clear that public libraries have a compelling interest to protect the physical and psychological well-being of children. The law does not require every computer in the library to be equipped with the filtering software. The law strikes a delicate balance between protecting children and permitting adults to use a filter-free Internet without trampling on the First Amendment. The law is a reasonable and constitutional way to protect children from online pornography in public libraries.”

Last year, the two federal funding programs governed by the law gave more than $200 million to public and school libraries for Internet access costs. As of 2000, more than 95% of public libraries were connected to the Internet.

The American Library Association and several organizations represented by the ACLU challenged the law as it pertains to public libraries. They claim that the funding conditions force libraries to violate the First Amendment.

Filtering software, the challengers say, is so imprecise — and the way programmers implement it so scattershot — that it substantially “overblocks” sites that would not violate the law and “underblocks” sites that are obscene.

“The [filtering] decisions are made by college graduates who are working for a few years while deciding what to do with their lives,” says ACLU senior staff attorney Christopher Hansen. In May, after hearing extensive evidence and testimony, a three-judge panel in the Eastern District of Pennsylvania unanimously struck down the law as unconstitutional.

“Any public library that adheres to CIPA’s conditions will necessarily restrict patrons’ access to a substantial amount of protected speech, in violation of the First Amendment,” wrote Edward Becker, the chief judge of the 3rd U.S. Circuit Court of Appeals who sat on the special panel. “The First Amendment demands the precision of a scalpel, not a sledgehammer.” The ruling relegated to a lengthy footnote another contention, that the law violated the First Amendment rights of the libraries themselves.

The library case is the third Internet First Amendment dispute to arrive at the Supreme Court via Philadelphia’s federal court. The first, Reno v. ACLU in 1997, struck down the Communications Decency Act and established the Internet’s place in the First Amendment pantheon. Last term’s Ashcroft v. ACLU put off a final decision on the constitutionality of the Child Online Protection Act, sending the case back to Philadelphia for further findings.

Filing challenges to Internet laws in Philadelphia has become something of a tradition, says the library group’s lawyer Paul Smith, partner in the Washington, D.C., office of Jenner & Block. “It’s been a relatively good jurisdiction for us, arguing there across the street from the Liberty Bell.”

What makes the new case somewhat different from the others is that, instead of enacting direct restrictions on private Internet users, Congress invoked the Constitution’s spending clause to place conditions on public entities receiving federal funds.

Smith thinks that this works to the challengers’ advantage, because the leading Supreme Court precedent on the spending clause, South Dakota v. Dole, says that Congress may not distribute funds to state and local governments in a way that would force them to “engage in activities that would themselves be unconstitutional.”

The Bush administration argues in its brief that CIPA “does no such thing,” because libraries are entitled to make content-based decisions on what materials to make available to patrons. “A library that refuses to make available to its patrons pornographic magazines or XXX videos may also refuse to make available comparable material through those computers,” the solicitor general’s brief states.

A friend-of-the-court brief by the state of Texas also argues that if the lower court ruling is upheld and the federal law is struck down, then state and local governments and the libraries themselves will be unable to use filtering technology without violating the First Amendment. “The ability to filter these materials through the use of software is an important weapon in states’ and libraries’ child-protection arsenals,” wrote Amy Warr, assistant solicitor general for Texas.

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