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Published in Print: July 9, 2003, as High Court Upholds Law on Internet Filtering in Libraries

High Court Upholds Law on Internet Filtering in Libraries

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The U.S. Supreme Court has upheld a federal law that aims to protect children by requiring public libraries receiving federal technology money to install filtering software on their Internet-connected computers. But the court's opinions in the case leave some questions unanswered and allow for the possibility of further court challenges, legal experts say.

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"Because public libraries have traditionally excluded pornographic material from their other collections, Congress could reasonably impose a parallel limitation on its Internet assistance programs," Chief Justice William H. Rehnquist said in his June 23 plurality opinion in United States v. American Library Association (Case No. 02-361).

The case concerned the Children's Internet Protection Act of 2000, which requires schools and libraries receiving federal E-rate funding to install filters to block out obscenity and child pornography for all users and, for minors, other material that is deemed harmful to them.

The E-rate program subsidizes Internet connections for schools and libraries.

The American Library Association and other groups challenged the public-library provisions of the law as being incompatible with the First Amendment. The association argued that the law required public libraries to cede important decisions about content to the companies that develop Web filters, which, the ALA said, imperfectly block adults and children from accessing material that may well be deserving of First Amendment protection.

A special federal district court in Philadelphia agreed last year and struck down the law with respect to public libraries. Because of the legal challenge, the public-library provisions have never been enforced.

Meanwhile, school libraries and classrooms with federally financed Internet connections have had to certify to the federal government that they are in compliance with the filtering requirement.

Age Differences

No Supreme Court opinion in the case commanded a majority. Chief Justice Rehnquist's plurality opinion was joined by Justices Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas.

The chief justice said public libraries have the same leeway to limit access to certain Web sites as they do to decide which books to provide on library shelves. The imperfections of commercial Web filters, which have been accused of blocking large numbers of sites that have nothing to do with sex, are not a constitutional concern because adult patrons can ask librarians to turn off the filters, he added.

Separate concurring opinions by Justices Anthony M. Kennedy and Stephen G. Breyer suggested that there was no constitutional problem with the law as long as adult library users could easily get the filters turned off.

Justice David H. Souter, in a dissent joined by Justice Ruth Bader Ginsburg, said 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 [computer] terminal." Justice John Paul Stevens filed his own dissent.

Christopher A. Hansen, a senior staff counsel with the American Civil Liberties Union, which helped mount the challenge to the law, said the ruling was "remarkably unhelpful with respect to minors."

Tomas Lipinski, an associate professor in the University of Wisconsin-Milwaukee's school of information studies, agreed. "What is appropriate for a 17-year- old," he said, "is very different than what is appropriate for a 7th grader."

"The court fell into the trap of thinking that the only things the filters are trying to keep out is pornography," added Mr. Lipinski, who has a law degree. "In fact, they block far more categories than that."

Sexual- Abuse Case

Separately, in a case of particular interest to those who are tracking the problem of sexual abuse of students by school employees, the high court held that a law changing a state's statute of limitations cannot be used retroactively for prosecutions involving long-ago criminal charges with expired time limits.

The 5-4 ruling in Stogner v. California (Case No. 01-1757) focused on a 1994 California law that permits sex-related child-abuse charges to be brought up to a year after being reported to authorities. In the case before the high court, prosecutors had used the law to indict a retiree on charges of molesting his daughters from 1955 through 1973. At that time, the statute of limitations for such crimes was three years.

In its June 26 decision, the court ruled that the state could not constitutionally reach back and prosecute people who previously would not have been subject to such charges because of the time limits.

"[W]e agree that the state's interest in prosecuting child-abuse cases is an important one," Justice Stephen G. Breyer wrote for the majority. "But there is also a predominating constitutional interest in forbidding the state to revive a long-forbidden prosecution."

He was joined by Justices Stevens, O'Connor, Souter, and Ginsburg. In dissent were Chief Justice Rehnquist, and Justices Scalia, Kennedy, and Thomas.

California's unusual law has been used in an estimated 800 cases since 1994, said Nathan Barankin, a spokesman for stateAttorney General Bill Lockyer.

But the state does not know how many of those cases involved educators, he said, or how many cases or convictions will be thrown out as a result of the high court's ruling.

Both Mr. Barankin and a California public defender said that prosecutors could still use the statute to press charges of sexual abuse of children, but they differed on how far back in time those crimes could have occurred.

"The impact is very complex," said Robert E. Kalunian, the chief deputy public defender in Los Angeles County.

Terri L. Miller, the president of the national advocacy network Stop Educator Sexual Abuse, Misconduct, and Exploitation, or SESAME, argued that because targets of childhood sexual abuse often do not come forward until years later, the ruling will prevent victims from pursuing justice and moving on.

"This ruling has slammed the door shut for them to ever have their day in court," Ms. Miller said.

Vol. 22, Issue 42, Page 24

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