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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. Dont 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 Childrens 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, CIPAs 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
CIPAs 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
panels 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
mens group associated with St. Patricks 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 Congresss 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 Congresss 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
Congresss 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 CIPAs conditions will necessarily violate the First Amendment
and . . . we believe that CIPAs 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 librarys 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
Courts 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
Kennedys 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 librarys 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), CIPAs 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.
[Posted
on June 2, 2002]
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