High Court Mulls Arguments On Library Internet-Filter Law

By Mark Walsh — March 12, 2003 3 min read

Public libraries have the same discretion to limit access to Internet pornography on their computers as librarians have when deciding which books to add to their collections, the Bush administration told the U.S. Supreme Court last week.

“The First Amendment does not require librarians to sponsor the viewing of pornography,” Solicitor General Theodore B. Olson told the justices March 5. He argued in support of a federal law that requires public libraries receiving federal technology money to install filtering software to block children from viewing sexually explicit Web sites.

But the American Library Association contends it is unconstitutional for the federal government to force public libraries to use the filters, which it says block much constitutionally protected speech yet fail to block some pornography sites.

“The federal government has no business using its spending power ... to push librarians away from using their professional judgment,” Paul M. Smith, a lawyer representing the library association and others who challenged the Children’s Internet Protection Act of 2000, known as CIPA, argued before the high court.

The law applies to libraries and schools that receive so-called federal E-rate funding, as well as a few other forms of federal technology money. The legal challenge was confined to the law’s requirements for public libraries.

A special three- judge federal district court in Philadelphia last year struck down the law as it applies to public libraries, ruling that Web-filtering software often blocks content containing protected speech and thus violates the First Amendment rights of library patrons.

The law remains in force for public and private schools with federally subsidized Internet connections in their libraries and classrooms. Schools applying for federal technology aid must certify they are in compliance with the law, which requires filters to block obscenity, child pornography, and other material deemed harmful to minors, such as sexually explicit Web sites that might be lawful for adults to view.

While public libraries are the main issue in United States v. American Library Association (Case No. 02-361), several justices expressed reservations during the oral arguments last week about the potential implications of the law’s requirements for schools.

Justice Stephen G. Breyer suggested he was concerned about the public libraries’ argument that Internet connections in libraries create a “designated public forum” meriting First Amendment protection. Under that theory, students using Internet-linked computers in schools might merit the same First Amendment protection, he suggested.

“So [an] elementary school has to let the worst possible pornography into the school?” he asked Mr. Smith.

“The constitutional analysis may well come out differently with respect to young children,” Mr. Smith said.

Legal Juggling

In the public library context, one central argument of the law’s challengers is that in an effort to protect children from sexually explicit material, whether they seek it out or stumble upon it accidentally, the law goes too far in infringing the free-speech rights of adults to receive lawful information.

Commercial Web filters typically “overblock” information, the district court found. One filter blocked such sites as the Republican National Committee’s Web site, a teen-health site about sexually transmitted disease, and a site about juggling, according to court papers.

And while adults may theoretically ask librarians to disable the Web filters, it is often impractical to do so, and such requests come with a stigma, Mr. Smith told the justices.

“You’re forced to go up to the librarian and say, ‘Please turn off the smut filter,’ ” he said.

The comments of at least five justices appeared to be supportive of the federal government’s arguments. But Solicitor General Olson also faced some skeptical members of the court.

“It seems that an inevitable price of this is blocking more than the statute requires,” Justice David H. Souter said. He added that he was concerned that public librarians do not have much, if any, control over what sites get blocked because those decisions are made by the company that develops the filtering software.

“At least when [a library] makes a decision not to stock a book, it knows what it has decided not to do,” Justice Souter said.

“Any system,” Mr. Olson said, “is going to involve some overblocking or underblocking.”

A decision in the case is expected by late June.

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