On June 23, 2003, the Supreme Court of the United States handed down its decision in United States v. American Library Association. The decision upheld the Children’s Internet Protection Act (CIPA) against a challenge based on the First Amendment to the U.S. Constitution. Inasmuch as the law at issue in the case involved a requirement that libraries install filtering software to block obscene or pornographic material involving children, it was bound to be of interest, to say the least, to those who sell books and who have a very soft spot in their hearts for libraries.
On one of the book related discussion lists on the Internet, the comments were critical of the decision, and asserted the view that this decision represented a significant assault on First Amendment values. A representative comment went something like this: …I just want to underscore that the US Supreme Court decision means that libraries are being forced to impose automated censorship tools upon adult patrons.
I responded with the statement that, as I understood the decision, which I had not yet read, this was not true. The editor of this newsletter asked if I would like to expand on my response, and I said that I would. I hope this isn’t too expansive. She asked, I suppose, because I have a law degree. Although I am blessedly free of the practice of law and now sell books, I once practiced law, and spent considerable time working in a partisan legislative advisory position, and also was a law clerk for a federal judge. I can still read a Supreme Court decision and figure out what it means.
I. The Law.
There are a couple of federal programs on the books which were designed to provide resources for libraries to offer their patrons access to the internet. The details of these programs aren’t particularly important to this discussion, but that fact is necessary background. The value of those resources amounted to about $200 million in 2002 (counting direct grants, and discounted access fees).
In response to the growth of the internet in the years since these programs were instituted, Congress (and everybody else who connects to the Internet) became aware that there was significant pornographic content to be had on the web. And Congress became politically aware (angry constituents, I’d imagine) that it was accessible to children, and viewable by children while being accessed by adults, all within public libraries. They responded by passing the CIPA, which required the installation of filtering software to block access to such material.
It is important to note that this law applied only to libraries that received funds or benefits from those federal programs. It is also a given that Congress is given wide latitude to attach conditions to the receipt of federal funds. However, the American Library Association (ALA) and several other plaintiffs filed suit contending that CIPA was unconstitutional on its face.
II. The Trial.
A three judge panel in the Eastern District Court of Pennsylvania agreed. It held that “any public library that complies with CIPA’s conditions will necessarily violate the First Amendment.” It is important to realize that this decision turned on the notion that the law was unconstitutional only because it forced the libraries to commit an unconstitutional act. In other words, a library governed or operated by a public entity – a state or local government or public school – could not, on its own, install filtering software without running afoul of the First Amendment. According to the District Court, libraries’ content-based decisions are subject to a “rational basis” test. However, because internet access was used in public libraries for “expressive activity,” it should be viewed as a “traditional public forum,” and as such, the law should be subjected to strict scrutiny. Under that standard, the Court concluded that while the government may have a compelling interest in preventing the subsidization of pornography, the software filters required by CIPA are not narrowly focused enough, presumably because the filters are hardly a precise weapon. No one reading this will be surprised that it was generally conceded by all the justices that the filters blocked a lot of unobjectionable material.
III. The Decision.
The Supreme Court’s decision overturning this decision is complex in that the decision of the Court was joined by only four justices (Renquist who wrote it, joined by O’Connor, Scalia and Thomas). That’s called a plurality opinion. Justice Kennedy concurred, as did Breyer, but each wrote a separate opinion. Stephens dissented with an opinion of his own, and Souter also dissented in an opinion joined by Ginsberg. Generally, a plurality opinion does not provide a particularly strong precedent, and the concurring opinions which establish the majority are significant in that they are usually more narrowly focused and provide a more compelling basis for decisions which follow. However, for simplicity’s sake, I’ll refer to the opinions in the decision as the “majority,” to include the plurality opinion as well as the concurring opinions, and the “dissenters,” to include each of those opinions, unless context requires otherwise.
The majority, and more pointedly, the concurring opinions, notes as crucial the fact that CIPA permits libraries to disable the filtering software in response to the request of an adult, or presumably a child when the software is blocking material that would be appropriate for the child. In fact, Kennedy’s decision intimates that he reads the law as requiring that action, and that the provision is constitutionally required.
As to the determination of which test to use to adjudicate this law (which I would suggest will almost always dictate the result), the majority (except Breyer) adopted the more permissive rational basis test. Breyer would have imposed an intermediate standard – “heightened scrutiny” – which requires a balancing of the government’s interest and the seriousness of the speech related activity. The balance, in Breyer’s opinion, tipped in favor of the government by virtue of the simplicity of getting the library to shut off the filters for adults.
The other members of the majority found the rational basis test appropriate, rejecting the trial court’s opinion to the contrary. The justices reasoned that the public forum doctrine that formed the basis of the trial court’s opinion was inapplicable because the provision of internet access to the public was simply not like the precedents that applied it. The easiest of those to understand is a couple of cases concerning restrictions on the use of student activity funds. The Court had held that such funds were designed and intended for providing the means to engender speech related activities. Under those circumstances, content-based regulations were subject to strict scrutiny. But libraries make content based decisions every day in choosing which materials to buy, and perhaps more importantly, which materials to segregate from easy public access. After all, the Court said, many libraries simply decline to stock pornography at all. Such decisions by libraries are not subjected to strict scrutiny according to well established precedent. The fact that the internet contains an especially broad range of information shouldn’t make any difference because it could hardly be suggested that libraries could not choose to limit access to some material on the same basis they do with respect to books, periodicals, or any other material they provide.
The dissents concentrated on the factual record, which discussed how poorly the filters performed, blocking perfectly harmless material (and valuable material as well), and failing to block pornographic material. This fact was as important to the dissents as the ease of having the filters turned off for adults was to the majority. It was this problem that made the CIPA unconstitutional in the view of the dissenters. Representative is the following from the Stevens dissent:
Because of “underblocking,” the statute will provide parents with a false sense of security without really solving the problem that motivated its enactment. . . . The effect of over-blocking is the functional equivalent of a host of individual decisions excluding hundreds of thousands of individual constitutionally protected messages from internet terminals located in public libraries throughout the nation.
Stevens also quoted the trial court’s finding that there were less intrusive alternatives to accomplish the purpose including imposition of access regulations and punishments for those who violate them; requiring parental consent during unfiltered access or the presence of library staff.
It is curious that the more conservative justices in the majority based their opinions on the freedom regularly accorded libraries. In the posture of this case, the deference traditionally shown libraries in their choice of materials determined the loss of the suit brought by the ALA. Since libraries could most certainly install filtering software on their own without Constitutional problem, it can hardly be unconstitutional for the Congress to condition receipt of federal funds on doing just that.
The answer to the assertion cited at the beginning of this essay is certainly that the assumption forming the criticism of the decision was incorrect. There is plenty of room for argument on the wisdom of the CIPA. Nevertheless it is hard to see how it runs afoul of the Constitution. The language of the law itself leaves no doubt that adult access must be unfiltered if requested.
Those of us who spend time on the Internet are well aware of both how prevalent pornography is and how imprecise filtering software is. But I can’t help but wonder about both the efficacy and the appeal of the “less intrusive” ways of accomplishing a legitimate governmental purpose. Punishment for accessing forbidden materials and requiring parental presence or consent – these are hardly unobtrusive. It seems to me that they’re pretty heavy-handed.
There was certainly much more to the various opinions in this case. It runs about fifty single-spaced pages. I hope that I’ve covered the important points, but I would suggest that anyone interested give it a read. By: Don Gallagher email@example.com