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Factual Background Edit
The Children's Internet Protection Act (CIPA), P.L. 106-554 (2000), 114 Stat. 2763A-335, amended three federal statutes to provide that a school or library may not use funds it receives under these statutes to purchase computers used to access the Internet, or to pay the direct costs of accessing the Internet, and may not receive universal service discounts (other than for telecommunications services), unless the school or library enforces a policy “that includes the operation of a technology protection measure” that blocks or filters minors’ Internet access to visual depictions that are obscene, child pornography, or “harmful to minors”; and that blocks or filters adults’ Internet access to visual depictions that are obscene or child pornography.
Appellate Court Proceedings Edit
A three-judge federal district unanimously declared the CIPA unconstitutional and enjoined its enforcement insofar as it applies to libraries. The CIPA, like the CDA but unlike COPA, authorized the government to appeal directly to the U.S. Supreme Court, and the government did so.
U.S. Supreme Court Proceedings Edit
The U.S. Supreme Court reversed the appellate panel and upheld the CIPA. The plurality noted that “Congress may not ‘induce’ the recipient [of federal funds] ‘to engage in activities that would themselves be unconstitutional.’” The plurality therefore viewed the question before the Court as “whether [public] libraries would violate the First Amendment by employing the filtering software that CIPA requires.” Does CIPA, in other words, effectively violate library patrons rights?
The plurality concluded that it did not, as “Internet access in public libraries is neither a ‘traditional’ or a ‘designated’ public forum,” and that therefore it would not be appropriate to apply strict scrutiny to determine whether the filtering requirements are constitutional. But the plurality also considered whether the CIPA imposes an unconstitutional condition on the receipt of federal assistance — in other words, does it violate public libraries’ rights by requiring them to limit their freedom of speech if they accept federal funds? The plurality found that, assuming that government entities have First Amendment rights (it did not decide the question), the CIPA does not infringe them. This is because the CIPA does not deny a benefit to libraries that do not agree to use filters; rather, the statute “simply insist[s] that public funds be spent for the purposes for which they were authorized." “CIPA does not ‘penalize’ libraries that choose not to install such software, or deny them the right to provide their patrons with unfiltered Internet access. Rather, the CIPA simply reflects Congress’ decision not to subsidize their doing so.”
The plurality acknowledged “the tendency of filtering software to ‘overblock’ — that is, to erroneously block access to constitutionally protected speech that falls outside the categories that software users intend to block.” It found, however, that, “[a]ssuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled.”
The plurality also considered whether CIPA imposes an unconstitutional condition on the receipt of federal assistance — in other words, does it violate public libraries’ rights by requiring them to limit their freedom of speech if they accept federal funds? The plurality found that, assuming that government entities have First Amendment rights (it did not decide the question), CIPA does not infringe them. This is because CIPA does not deny a benefit to libraries that do not agree to use filters; rather, the statute “simply insist[s] that public funds be spent for the purposes for which they were authorized.” “CIPA does not ‘penalize’ libraries that choose not to install such software, or deny them the right to provide their patrons with unfiltered Internet access. Rather, CIPA simply reflects Congress’ decision not to subsidize their doing so.”
In effect, then, the plurality seemed to view CIPA as raising no First Amendment issue other than the possible one of overblocking, which it found the statute to deal with adequately by its disabling provisions. Justice Kennedy, concurring, noted that, “[i]f some libraries do not have the capacity to unblock specific websites or to disable the filter or if it is shown that an adult user’s election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge, not the facial challenge made in this case.”
Justice Breyer would have applied “a form of heightened scrutiny,” greater than rational basis scrutiny but “more flexible” than strict scrutiny, to assess CIPA’s constitutionality. He would ask “whether the harm to speech-related interests is disproportionate in light of both the justifications and the potential alternatives.” Applying this test, he concurred that CIPA is constitutional.
Justice Stevens found CIPA unconstitutional because of its “vast amount of ‘overblocking,’” which he found not cured by the disabling provisions, because “[u]ntil a blocked site or group of sites is unblocked, a patron is unlikely to know what is being hidden and therefore whether there is any point in asking for the filter to be removed.”
Justice Souter said that he would not “dissent if I agreed with the majority of my colleagues . . . that an adult library patron could, consistently with the act, obtain an unblocked terminal simply for the asking. . . . But the Federal Communications Commission, in its order implementing the act, pointedly declined to set a federal policy on when unblocking by local libraries would be appropriate under the statute. . . . Moreover, the District Court expressly found that ‘unblocking may take days, and may be unavailable, especially in branch libraries, which are often less well staffed than main libraries.’” Further, “the statute says only that a library ‘may’ unblock, not that it must.”
- ↑ Section 1711 amended Title III of the Elementary and Secondary Education Act of 1965, 20 U.S.C. §§6801 et seq. Section 1712 amended section 224 of the Museum and Library Services Act, 20 U.S.C. §9134, which is part of the Library Services and Technology Act (LSTA), which is Title II of the Museum and Library Services Act. Section 1721 amends section 254(h) of the Communications Act of 1934, 47 U.S.C. §254(h), which establishes the “universal service discount,” or “E-rate,” for schools and libraries. Only sections 1712 and 1721 (insofar as it applies to libraries) were at issue in the case before the three-judge district court and the Supreme Court.
- ↑ 201 F.Supp.2d 401 (E.D. Pa. 2002). The district court struck down §1712(a)(2), which concerns LSTA funds, and §1721(b) which concerns E-rate discounts for libraries. The provisions affecting schools were not challenged.
- ↑ Id. at 203.
- ↑ Id.
- ↑ Id. at 205.
- ↑ Id. at 211.
- ↑ Id. at 212.
- ↑ Id. at 208. The three-judge court had found that “At least tens of thousands of pages of the indexable Web are overblocked by each of the filtering programs evaluated by experts in this case, even when considered against the filtering companies’ own category definitions. Many erroneously blocked pages contain content that is completely innocuous for both adults and minors, and that no rational person could conclude matches the filtering companies’ category definitions, such as ‘pornography’ or ‘sex.’” 201 F. Supp.2d, at 449.
- ↑ Id. at 209.
- ↑ Id. at 21.
- ↑ Id. at 212.
- ↑ Id. at 215.
- ↑ Id. at 216, 218.
- ↑ Id. at 217.
- ↑ Id. at 222, 224. Justice Stevens quoted from the district court opinion: “[T]he search engines that software companies use for harvestings are able to search text only, not images. This is of critical importance, because CIPA, by its own terms, covers only ‘visual depictions.’” Id. at 221.
- ↑ Id. at 232-33.
- ↑ Id. at 233.