In sum, the court acknowledges that "use of filtering software furthers public libraries’ legitimate interests in preventing patrons from accessing visual depictions of obscenity, child pornography, or in the case of minors, material harmful to minors" and that it helps prevent patrons from being unwillingly exposed to patently offensive, sexually explicit material. Summer Reading Assignment:
Library Internet Pornography Filtering Case

The recent decision in American Library Association, Inc. v. United States is getting considerable attention because of the sexiness of the issue it addresses — access in public libraries to Internet pornography. The interest will likely still not inspire many to sit down and read the entire decision, which is decidedly unsexy. It is almost 100 pages long and filled with a multitude of technical terminology and legal citations. Don’t let that turn you off. This dissertation, rather opinion, is a must read for every First Amendment enthusiast and cyberspace junkie.

United States District Court Judge Edward Becker, who authored the opinion, was joined by two other judges from the eastern district of Pennsylvania in ruling unconstitutional a federal law that makes the use of filtering software by public libraries a condition of the receipt of federal funding. The lawsuit, filed by a group of libraries, library associations, library patrons, and Web site publishers, challenged the constitutionality of several provisions of the Children’s Internet Protection Act ("CIPA"), a federal law which makes the use of filters by a public library a condition of its receipt of two kinds of subsidies to public libraries. CIPA requires that libraries, in order to receive these funds, certify that they are using a "technology protection measure" that prevents patrons from accessing "visual depictions" that are "obscene," "child pornography," or in the case of minors, "harmful to minors."

The plaintiffs alleged that CIPA is facially unconstitutional because: "(1) it induces public libraries to violate their patrons’ First Amendment rights contrary to the requirements of [case law precedent governing Congress’ spending power]; and (2) it requires libraries to relinquish their First Amendment rights as a condition on the receipt of federal funds and is therefore impermissible under the doctrine of unconstitutional conditions."

The court summarized the crux of the complaint by noting that "[i]n arguing that CIPA will induce public libraries to violate the First Amendment, the plaintiffs contend that given the limits of the filtering technology, CIPA’s conditions effectively require libraries to impose content-based restrictions on their patrons’ access to constitutionally protected speech."

The extremely difficult task for the court in deciding this case partly hinged on which side of the fence the court fell with respect to level of scrutiny applied to these content-based restrictions on Internet access in public libraries. "According to the plaintiffs, these content-based restrictions are subject to strict scrutiny under public forum doctrine . . . and are therefore permissible only if they are narrowly tailored to further a compelling state interest and no less restrictive alternatives would further that interest . . .. The government responds that CIPA will not induce public libraries to violate the First Amendment, since it is possible for at least some public libraries to constitutionally comply with CIPA’s conditions. Even if some libraries’ use of filters might violate the First Amendment, the government submits that CIPA can be facially invalidated only if it is impossible for any public library to comply with its conditions without violating the First Amendment."

The opinion provides in the first fifty pages a detailed background of the statutory framework behind CIPA, the technical workings of the Internet, the inner-workings of public library systems, and Internet filtering devices. Thankfully, the brief is so well-written that even a non-cyberspace expert can easily learn the meaning and importance of such technical terms as "indexable web," "deep web," "harvesting," and "winnowing," to name only a few, and develop an appreciation for why it is so technologically difficult to develop an effective filtering device.

A discussion of the means employed by libraries throughout the country to insure that patrons avoid illegal (and unwanted) content while accessing the Internet at public libraries concludes with a fair assessment of the pros and cons of such alternatives as recessing of computer monitors, installing privacy screens, and monitoring implemented by a "tap on the shoulder." Eight days of trial, which included testimony from 20 witnesses, review of numerous depositions, stipulations and documents, are aptly summarized in this first part of the opinion and lend tremendous support to the panel’s conclusion that thousands of Web pages containing protected speech are wrongly blocked by the leading filtering programs. The court suggested the following as some of the examples of erroneously blocked Web sites: the Knights of Columbus Council 4828, a catholic men’s group associated with St. Patrick’s Church in Fallon, Nevada; Orphanage Emmanuel, a Christian orphanage in Honduras that houses 225 children; two sites that provide information on home schooling; and a guide to allergies, which was categorized as "adults only/pornography."

When the reader reaches the halfway point of the opinion, she is treated to a law review-like overview of complex constitutional doctrines implicated by CIPA. The analysis begins with a discussion of the constitutional limitations on Congress’s spending power (Article I, section 8, clause 1 which provides that "Congress shall have Power . . . to pay the Debts and provide for the common Defence and general Welfare of the United States"), as outlined in the seminal case of South Dakota v. Dole, 483 U.S. 203 (1987). Dole articulated four general constitutional limitations on Congress’s exercise of the spending power, with the Supreme Court upholding the constitutionality of a federal statute requiring the withholding of federal highway funds from any state with a drinking age below 21.

Judge Becker summarized the four limitations as (i) the exercise of the spending power must be in pursuit of the general welfare, (ii) any conditions that congress sets on states’ receipt of federal funds must be sufficiently clear to enable recipients to exercise their choice knowingly, cognizant of the consequences of their participation, (iii) the conditions on the receipt of federal funds must bear some relation to the purpose of the funding program, and (iv) other constitutional provisions may provide an independent bar to the conditional grant of federal funds. The plaintiffs challenged CIPA as unconstitutional under the fourth prong, arguing that "by filters, CIPA will induce public libraries to violate the First Amendment rights of Internet content-providers to disseminate constitutionally protected speech to library patrons via the Internet, and the correlative First Amendment rights of public library patrons to receive constitutionally protected speech on the Internet.

The court follows with a discussion of the debate surrounding what exactly a litigant must establish to facially invalidate an exercise of Congress’s spending power and the uncertainty surrounding what it means for Congress to use the spending power to "induce [recipients] to engage in activities that would themselves be unconstitutional." In this regard, the court concludes that "we may assume without deciding, for purposes of this case, that a facial challenge to CIPA requires plaintiffs to show that any public library that complies with CIPA’s conditions will necessarily violate the First Amendment and . . . we believe that CIPA’s constitutionality fails even under this more restrictive test of facial validity urged on us by the government. Because 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."

The court then turns to the issue of the level of scrutiny applicable to content-based restrictions on Internet access in public libraries and provides an overview of Supreme Court precedent governing the level of First Amendment scrutiny applicable to content-based restrictions on speech on government property. After reviewing the three types of fora (traditional public fora, designated public fora, and nonpublic fora), the Court concludes that because the relevant forum for analysis is not the library’s entire collection, but rather the specific forum of Internet access, the content-based restrictions must be viewed under the designated public fora precedent. As such, the court finds "that where the state designates a forum for expressive activity and opens the forum for speech by the public at large on a wide range of topics, strict scrutiny applies to restrictions that single out for exclusion from the forum particular speech whose content is disfavored."

The Court’s decision to apply strict scrutiny is further supported by its later conclusion that Internet access in public libraries is analogous to the application of strict scrutiny in traditional public fora, such as sidewalks and parks. Citing Supreme Court Justice Kennedy’s concurring opinion in Denver Area Educ. Telecomms. Consortium, Inc. V. FCC, 518 U.S. 727, 802-03 (1996), the court states that: "Indeed, ‘minds are not changed in streets and parks as they once were. To an increasing degree, the more significant interchanges of ideas and shaping of public consciousness occur in mass and electronic media.’"

Having concluded that strict scrutiny applies, the court next focuses on three distinct inquiries that come into play. First, identifying legitimate state interests that a public library’s use of software filter promotes. Second, whether the use of software filters is narrowly tailored to further those interests. And, finally, whether less restrictive alternatives exist that would promote the state interest.

In sum, the court acknowledges that "use of filtering software furthers public libraries’ legitimate interests in preventing patrons from accessing visual depictions of obscenity, child pornography, or in the case of minors, material harmful to minors" and that it helps prevent patrons from being unwillingly exposed to patently offensive, sexually explicit material. Because the court concludes that the filtering software mandated by CIPA will block access to substantial amounts of constitutionally protected speech and alternative means are available that are less restrictive (such as warnings, notification to law enforcement, parental consent, optional filtering, privacy screens, recessed monitors), CIPA’s mandate to withhold government subsidies from public libraries that fail to install filtering software is ruled facially invalid under the First Amendment and the government is enjoined from withholding federal funds from any public library that fails to comply with these provisions.

Thankfully, this case gets it right. In doing so, it highlights how increasing daily technological advancements in Cyberspace dictate re-tooling and greater analysis by courts as they apply existing laws and legal interpretations to the development of these new media products. It also emphasizes that the tech field must have a greater understanding of the legal arena as it develops its products.

For the filtering software developers, it is back to the drawing board; a path they may already have started down after a German state appeals court last week upheld a ruling against Microsoft Germany that it was liable for fake nude photos of tennis star Steffi Graf that were posted on a web site run by the company. In that case, the court found that the photos could legally be considered company property because Microsoft Germany created the platform for the publishing of the pictures and it could not merely disclaim liability on its website. Industry analysts were already criticizing the unprecedented opinion and looking to software filter designers to develop an advanced screening system to filter out the unsavory among the chat room and forum users.

To read the decision in the American Library Association case, click here.

June 2, 2002
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