The Supreme Court

Preventing Children from Accessing Pornography on the Internet

Another major controversy that stirred a new law was access to pornography on the Internet. Congress, in an attempt to protect children from accessing this content at least at public libraries, passed a law that required libraries to install filtering programs if they wanted to receive federal funding that enables them to provide Internet services to the public. Funding comes from two sources: E-Rate discounts and Library Services and Technology Act (LSTA) grants.

The American Library Association (ALA) filed suit challenging Children's Internet Protection Act because it believed that access to information on the Internet was a First Amendment right and should not be controlled by the government. The ALA said that current technology is not advanced enough to achieve what the Congress intended when it passed the law because existing software would either “over-block” or “under-block” access to Internet information.

The ALA pointed out in its suit in district court that filtering is censorship and violates the First Amendment because patrons are not informed of what material is blocked. For example the ALA pointed out that filters block useful medical and political information that contains words such as “breast” (breast cancer information is blocked) and “dick” (information about politicians, such as “Congressman Dick Gephardt”). The same software often fails to block the pornographic images that the act intended to filter out. The ALA also quoted a test done by Consumer Reports in 2001 that found filters failed to block one of out five objectionable sites.

The district court agreed with the ALA because CIPA mandates a content-based restriction on access to a public forum for free speech. The district court said “strict scrutiny” is applied where a fundamental right, such as the First Amendment to free speech, is denied. In testing for “strict scrutiny,” the district court found that there must be a compelling government interest to justify interference and the legislation must be narrowly tailored to further that interest. The court said that while government did have a compelling interest in preventing the dissemination of obscenity, child pornography and material harmful to minors, the requirement of filters does not meet the “narrowly tailored” test. The court ruled that Congress exceeded its power because “any library that complies with CIPA's conditions will necessarily violate the First Amendment.”

The Supreme Court overturned the district court and found that since CIPA requires libraries to turn off filtering whenever an adult requests it, there really isn't a First Amendment problem. When questioned on this issue during oral arguments, the ALA said that some patrons would be embarrassed if forced to request that filtering be turned off.

In a 6 to 3 decision, the Court overturned the district court and found CIPA constitutional. Chief Justice Rehnquist wrote the opinion for the Court and was joined by Justices O'Connor, Scalia and Thomas. Justices Kennedy and Breyer wrote their own concurring opinions. Justice Stevens and Souter both wrote dissenting opinions and Justice Ginsburg joined Souter's dissent.

In writing the Supreme Court's opinion, Rehnquist said:

• “The E-Rate and LSTA programs were intended to help public libraries fulfill their traditional role of obtaining material of requisite and appropriate quality for educational and informational purposes. Congress may certainly insist that these 'public funds be spent for the purposes for which they were authorized.' Especially because public libraries have traditionally excluded pornographic material from their other collections, Congress could reasonably impose a parallel limitation on its Internet assistance programs.”

In writing his dissent, Justice Souter had major questions regarding the rules relating to blocking and unblocking Internet content:

• “In any event, we are here to review a statute, and the unblocking provisions simply cannot be construed, even for constitutional avoidance purposes, to say that a library must unblock upon adult request, no conditions imposed and no questions asked. First, the statute says only that a library 'may' unblock, not that it must … In addition, it allows unblocking only for a 'bona fide research or other lawful purposes,' and if the 'lawful purposes' criterion means anything that would not subsume and render the 'bona fide research' criterion superfluous, it must impose some limit on eligibility for unblocking ….
• “We therefore have to take the statute on the understanding that adults will be denied access to a substantial amount of nonobscene material harmful to children but lawful for adult examination, and a substantial quantity of text and pictures harmful to no one. As the plurality concedes … this is the inevitable consequence of the indiscriminate behavior of current filtering mechanisms, which screen out material to an extent known only by the manufacturers of the blocking software …
• “We likewise have to examine the statute on the understanding that the restrictions on adult Internet access have no justification in the object of protecting children. Children could be restricted to blocked terminals, leaving other unblocked terminals in areas restricted to adults and screened from casual glances. And of course the statute could simply have provided for unblocking at adult request, with no questions asked. The statute could, in other words, have protected children without blocking access for adults or subjecting adults to anything more than minimal inconvenience, just the way (the record shows) many librarians had been dealing with obscenity and indecency before imposition of the federal conditions. … Instead, the Government's funding conditions engage in overkill to a degree illustrated by their refusal to trust even a library's staff with an unblocked terminal, one to which the adult public itself has no access.
• “The question for me, then, is whether a local library could itself constitutionally impose these restrictions on the content otherwise available to an adult patron through an Internet connection, at a library terminal provided for public use. The answer is no. A library that chose to block an adult's Internet access to material harmful to children (and whatever else the undiscriminating filter might interrupt) would be imposing a content-based restriction on communication of material in the library's control that an adult could otherwise lawfully see. This would simply be censorship. True, the censorship would not necessarily extend to every adult, for an intending Internet user might convince a librarian that he was a true researcher or had a 'lawful purpose' to obtain everything the library's terminal could provide. But as to those who did not qualify for discretionary unblocking, the censorship would be complete and, like all censorship by an agency of the Government, presumptively invalid owing to strict scrutiny in implementing the Free Speech Clause of the First Amendment.”

The next time you go to your public library, check out its Internet capabilities and see whether blocking software is in place and what you must do to have it turned off. Although you might agree that blocking children's access to Internet pornographic sites is a worthy goal, sometimes trying to attain that goal can deny access to sites that are not pornographic and do offer important information.

Excerpted from The Complete Idiot's Guide to The Supreme Court © 2004 by Lita Epstein, J.D.. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.

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