Vice Squad
Wednesday, June 30, 2004
Last Year's Internet Pornography Case: Smut and Public Libraries

Yesterday's Supreme Court decision in Ashcroft v. ACLU et al. has motivated me to provide some background into the whole issue of regulating Internet pornography. That background continues now with a look at a case that was decided last June, U.S., et al. v. American Library Association, et al. My discussion is based primarily on the Supreme Court decision itself, but also draws on (and, I think, coheres with) a column by Steve Chapman, "The Internet Law that No One Missed," from the Chicago Tribune, June 26, 2003, p. 27 (though the link is to the version that appeared in the Washington Times.) Last year's case was brought up in both the opinion for the Court and a dissent in yesterday's COPA ruling.

A lack of Internet access puts enormous amounts of material out of reach. Public libraries, therefore, have been assiduous in trying to secure and augment Internet access for their patrons. Of course, the material that the Internet makes available ranges over the full spectrum, from the most detailed, prosaic data to the most lurid photographs and films, including many which are prohibited as "obscenity." Sometimes kids (and adults, too) in public libraries access the lurid material, often purposely. Sometimes they even leave it on the screen so that the next user is involuntarily exposed to indecent images.

The specter of such questionable use of public Internet connections brought a federal response. The US Congress passed the Children's Internet Protection Act (CIPA) in December 2000. Most public libraries in the US receive federal funds earmarked to help them establish and maintain Internet access. CIPA requires public libraries that receive such federal funding to install filters on all of their computers that are connected to the Internet.

The constitutionality of CIPA was challenged by the American Library Association, as well as by a long list of plaintiffs, including two candidates for Congress whose websites were blocked by filtering software. An injunction prevented the implementation of CIPA until the case was finally decided by the Supreme Court. On June 23, 2003, the Supreme Court (in a 6-3 decision) upheld the constitutionality of CIPA, overturning the earlier ruling of a US District Court. Three other justices (O'Connor, Scalia, and Thomas) signed on to the opinion written by Chief Justice Rehnquist, while two additional justices (Kennedy and Breyer) agreed with the outcome, though each provided a separate opinion. Essentially, the Rehnquist decision argued that the free speech issues at stake in CIPA were minimal: "A library's decision to use filtering software is a collection decision, not a restraint on private speech." Further, the law allows librarians to disable the filtering software if an adult makes a request consistent with "bona fide research or other lawful purposes." CIPA, according to the Rehnquist decision, does not violate free speech protections, while it enables Congress's legitimate purpose of limiting the manner in which its authorized spending is undertaken.

Both sides of the Court recognized the fallibility of filtering software. Current incarnations of such software vastly overexclude material, precluding access to unobjectionable, non-obscene sites. (Filters also allow some pornography to pass unmolested, especially as filters rely on text and have no reliable way to judge the content of photographs.) In his dissent, Justice Stevens argued that "a statutory blunderbuss that mandates this vast amount of 'overblocking' abridges the freedom of speech protected by the First Amendment." The fact that the filters could be removed upon request does not vacate the First Amendment concerns of Justice Stevens, in part because a user doesn't know precisely what is blocked in advance. CIPA also requires that every Internet-enabled computer in a library be filtered, even if only one of the computers was purchased with (some) federal funds, and even if the computer is solely for the use of library staff. "This Court should not permit federal funds to be used to enforce this kind of broad restriction of First Amendment rights, particularly when such a restriction is unnecessary to accomplish Congress' stated goal." Justice Stevens noted that in the absence of the CIPA requirement, only 7 percent of surveyed libraries indicated that they dealt with the problem of adolescent access to Internet pornography by installing filters on all computers.

Justice Souter's dissenting opinion, joined by Justice Ginsburg, observed that the disabling of the filters upon request was not automatic -- the statute only stated that librarians "may" unblock when a request is received. Justice Souter further took issue with the plurality's claim that CIPA involved not censorship, but a "collection decision" akin to that of which books to purchase:
...In the instance of the Internet, what the library acquires is electronic access, and the choice to block is a choice to limit access that has already been acquired. Thus, deciding against buying a book means there is no book (unless a loan can be obtained), but blocking the Internet is merely blocking access purchased in its entirety and subject to unblocking if the librarian agrees. The proper analogy therefore is not to passing up a book that might have been bought; it is either to buying a book and then keeping it from adults lacking an acceptable "purpose," or to buying an encyclopedia and then cutting out pages with anything thought to be unsuitable for all adults.
CIPA's litigation history may well not end with the Supreme Court decision of 2003. In that case, CIPA was challenged on its face as unconstitutional, and the Court ruled against such a challenge. The implementation of CIPA, however, could result in further challenges, especially if adults are denied relatively swift and painless unblocking. (OK, this one hits close to home for this vice researcher, who frequently has accessed the Internet in public libraries, on topics such as pornography, obscenity, and other areas likely to raise flags for filters.)

The passage of CIPA, it seems to me, is a perfect example of legislation that should never have been adopted, under the old adage "don't make a federal case out of it." The 93 percent of libraries that previously chose otherwise now have no choice, absent the loss of what for many are significant funds, to install filters on all of their computers attached to the web. And for what gain? As Internet access expands, fewer and fewer adolescents will need to rely on public libraries if they choose to procure pornography. And for those whose search for Internet porn is limited to public settings, librarians had already implemented policies to control such behavior. But now we are saddled with a federal rule that ultimately will have essentially no impact on adolescent exposure to pornography, but will inconvenience thousands of library internet users, who among other things, might be prevented from accessing the Supreme Court's decision in US v. American Library Association, et al. (2003).

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