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By searching Websites and blocking pages containing certain keywords, “porn filters” have also repeatedly “filtered” out pages containing information on diseases, personal health, family planning and gay rights.

 

Filtering the First Amendment

By Christopher J. Armstrong

On Monday, the Supreme Court held that the Children’s Internet Protection Act (CIPA) does not violate the First Amendment's Free Speech Clause.  The decision, United States v American Library Association, No. 02-361, paves the way for the Act to be enforced against public libraries across the nation.

CIPA is Congress’ third attempt — the first to be upheld by the Court — to play Internet-nanny to the nation.  Under the Act, every library receiving federal funds must install so-called “porn-filters” on all computers available to the public for Internet use.  The purpose of the Act is to protect children from adult-oriented content, but because of the inexactitude of available software, the Act may also block adults from accessing what is otherwise constitutionally protected material.

Beyond First Amendment implications, CIPA ignores several less restrictive alternatives and prohibits local communities from experimenting with those alternatives.  Before Congress mandated Internet-filtering programs, some libraries experienced success with alternatives such as parental consent or presence and experimentation with computer placement.  The requirement of parental consent or presence before children can surf the Web gives ultimate control over what children can and cannot see on the Internet to the only good source of paternalism: the parent.

Alternatively, many libraries have restricted children to the use of computers with screens visible from the circulation desk or by library staff, while allowing adults to use more private computer areas.  Those approaches both protect children from harmful online content and protect the freedom of adults to surf the Internet unfettered, but have been rendered pointless by the sweeping mandate from Congress.

Among other issues addressed by the Court were inadequacies in the filtering software available to libraries.  Currently available software is not capable of detecting some material on adult-oriented Web pages, and is so overbroad that it blocks images that are both non-pornographic and constitutionally protected under the First Amendment.

As Justice Stevens pointed out in his dissent to Monday’s ruling, “The search engines that software companies use for harvesting are able to search text only, not images. This is of critical importance, because CIPA, by its own terms, covers only ‘visual depictions.’”  Such technology is rendered even more questionable as Websites, particularly adult-oriented sites, use image files rather than text to display words.  In light of these inadequacies, Justice Stevens argues that CIPA “will provide parents with a false sense of security without really solving the problem that motivated its enactment.”

By searching Websites and blocking pages containing certain keywords, “porn filters” have also repeatedly “filtered” out pages containing information on diseases, personal health, family planning and gay rights.  This overblocking by congressionally mandated software is, as Justice Stevens stated, “the functional equivalent of a host of individual decisions excluding hundreds of thousands of constitutionally protected messages from Internet terminals located in public libraries throughout the nation.”

Chief Justice Rehnquist, writing for majority, argued that because an adult patron may ask a librarian to remove the blocking software from a computer, there could be no constitutional violation.  Yet that option is not included in the Act, and the FCC’s order implementing the Act does not require it.  As the Supreme Court held in Watchtower Bible & Tract Soc. of N.Y., Inc. v. Village of Stratton, No. 00-1737, a law that prohibits reading or speaking without official consent “constitutes a dramatic departure from our national heritage and constitutional tradition.”

In the end, CIPA and Monday’s decision may end up making the problem worse.  There is great value to Justice Louis D. Brandeis’ vision of the states and localities as “laboratories of democracy.”  While this vision stretches beyond the realm of regulating Internet access, the value of the idea applies here.  By imposing a nationally mandated solution to this problem, Congress may “well impede developing truly effective approaches that do not violate the First Amendment,” according to Justice Stevens.

With Monday’s decision, yet another local issue has fallen under the control of Congress, and citizens nationwide have lost even more power to fight the problems they know best: those in their own backyard.


Christopher J. Armstrong is a law student at the Catholic University of America Columbus School of Law and is interning at the Center for Individual Freedom this summer.


[Posted June 26, 2003]

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