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.
Just the Facts
Libraries receive federal funding to enable them to offer Internet services through two programs—E-Rate and Library Services and Technology Act (LSTA) grants. E-Rate allows libraries to pay for Internet access at a discounted rate and LSTA grants provide money to buy equipment needed to start up or extend Internet access to patrons.
Libraries that receive federal funding for their Internet services to the public must filter their content to protect children from accessing pornography on the Internet.
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:
In writing his dissent, Justice Souter had major questions regarding the rules relating to blocking and unblocking Internet content:
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.