Avis Poai

LIS 610 / Wertheimer

Philosophical Paper

The Constitutionality of CIPA

“When any government, or any church for that matter, undertakes to say to its subjects, ‘This you may not read, this you must not see, this you are forbidden to know,’ the end result is tyranny and oppression, no matter how holy the motives.” -Robert A. Heinlein

I.          The Internet and its Use in Public Libraries

The Internet is a vast, decentralized, interactive medium that provides easy access to any person who wishes to provide or distribute information to a worldwide audience. There is an estimated total of 7.1 million unique websites, but the total number of Web pages that can be reached in theory is around 2 billion.[1]  Moreover, the indexable Web is growing at a rate of approximately 1.5 million pages per day.[2]   In terms of its use, at least 400 million people access the Internet worldwide, and approximately 143 million Americans were using the Internet as of September 2001.[3]  Of the 143 million Americans using the Internet, approximately 10%, or 14.3 million people, accessed the Internet at a public library.[4]  In short, the Internet is a vital tool for public libraries as it vastly expands the amount of information available to patrons of public libraries.

However, “while the beneficial effect of the Internet in expanding the amount of information available to its users is self-evident, its low entry barriers have also led to a perverse result—facilitation of the widespread dissemination of hardcore pornography within the easy reach not only of adults who have every right to access it (so long as it is not legally obscene or child pornography), but also of children[[5]] and adolescents to whom it may be quite harmful.”[6]  The viewing of these materials in public libraries have motivated librarians to find ways to protect or prevent patrons, especially children, and staff from:

q      accidentally viewing sexually explicit images, or other Web pages containing content deemed harmful, that other patrons are viewing on the Internet;

q      unwittingly or accidentally accessing Web pages that they do not wish to see while they are using the Internet;

q      intentionally accessing sexually explicit materials or other materials that the library deems inappropriate;

q      doing inappropriate or illegal behavior that is thought to stem from viewing Web pages that contain sexually explicit materials or content that is otherwise deemed unacceptable.[7]

Some of the methodology utilized by librarians in addressing these problems have been the institution of an Internet Use Policy, and the implementation of Internet software filters.  Prior to Congressional involvement, however, only 7% of libraries nationwide mandated the use of filters.

II.        Filters

            Very briefly, filtering systems function either by “limiting access to an approved list of sources, blocking designated inappropriate sites, or attempting to block messages containing identifiable, objectionable features.”[8]  There are many commercial software filtering packages that exist including: CYBERsitter, Net Nanny, Parental Guidance, WebTrack, N2H2, Cyber Patrol, etc.[9]  The general problem with filters is that they “block valuable information because of imperfections in the technology that make certain filters insensitive to the meaning of a particular word in a given context, or because of the inability of filter-producers’ staff to review sites as quickly as they develop.”[10]

Thus, while filters may shield the user from illegal content, it also blocks content that is legal and valuable.  Unfortunately for public libraries, they are in a “damned if you do, damned if you don’t” position regarding Internet filters—they can be sued for filtering or for not filtering.[11]  In fact, libraries have already faced suits for their decisions on filtering Internet access. First, the American Civil Liberties Union (ACLU) successfully sued a library in Loudoun County, Virginia, for restricting patrons to filtered access.[12]  Meanwhile, a patron in Livermore, California, sued a library for not filtering her son's access.[13]  Although the California case was dismissed, the patron’s concerns are clearly indicative of certain anxieties in the community.  We see this as public libraries struggle with local community groups forming picket lines outside of the entrance.[14]  We also see these societal concerns reflected in the current federal mandates of filtering technology.

III.       Three Congressional Acts

The United States Congress, in an effort to protect America’s children and adolescents from obscene and pornographic Web sites, passed a variety of Acts—each of which have been scrutinized by the United States Supreme Court.

First, in 1996, Congress passed the Communications Decency Act (CDA) that prohibited Internet users from viewing or transmitting pictures, videos or messages that were offensive or pornographic to anyone under the age of 18.[15]  A year later in Reno v. ACLU, 117 S. Ct. 2329, (1997), the Supreme Court ruled that CDA violated the First Amendment.

Shortly thereafter in 1998, Congress enacted the Children Online Protection Act (COPA) which limited the scope of CDA, making it illegal for commercial web sites to transmit material deemed harmful to minors.[16]  In May 2002, the Supreme Court ruled in Ashcroft v. ACLU, 122 S. Ct. 1700 (2002), that while COPA was not facially unconstitutional, Congress did not have the power to enforce it.

Most recently Congress passed the Children’s Internet Protection Act  (CIPA) in 2000, which required school and public libraries to use anti-pornography filtering software as a condition for the libraries to receive government funding and discounts for computer technology.[17]  In short, CIPA requires that certain libraries have appropriate filtering systems in place to prevent children from accessing three types of content: online materials that are obscene,[18] visual depictions of child pornography,[19] and online materials that are harmful to minors.[20]  CIPA was thereafter challenged by a group of public libraries, library associations, library patrons and Web site publishers.[21]

The Eastern District Court of Pennsylvania held CIPA to be unconstitutional.[22] The Defendant timely appealed to the United States Supreme Court.[23]  

The questions presented by the Plaintiffs were: 1) Whether CIPA induces public libraries to violate the First Amendment; 2) Whether CIPA imposes unconstitutional conditions on funding to public libraries in violation.[24]   In a 6-3 split decision, the Supreme Court overturned the lower court’s findings and upheld the constitutionality of the text of CIPA.[25]  The Court acknowledged, however, that the application of CIPA in libraries is open for constitutional challenge.  Justice Kennedy commented in his concurring opinion that if some libraries cannot unblock protected Internet material, or if it is shown that a user’s election to view constitutionally protected Internet material is burdened in a substantial way, CIPA could be challenged for its unconstitutional application in libraries.[26]

             Congress’ purpose for passing CDA, COPA, and CIPA was to protect children from harmful materials. Protecting children comports with Congress’ power for providing for the “general welfare.”[27]  However, it is important to note that while Congress is empowered to pass laws like CIPA, the First Amendment explicitly states that: “Congress shall make no law…abridging the freedom of speech.” Hence, Congress can pass laws that protect children from harmful materials, so long as it does not abridge the right to freedom of speech.

IV.       Arguments

            A.        Con-CIPA: Use the Filters You Were Born With:

The Supreme Court has previously recognized that the right to receive information and knowledge is an inherent corollary of the rights of free speech and press because “the dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them.”[28]  In application, filtering software blocks patrons’ opportunity to receive information and exchange ideas via the Internet.[29]  It could thus be argued that there is a right of a library user to receive information via the Internet and mandatory use of filtering software violates free speech pursuant to the First Amendment.

The other problem is that CIPA is overbroad in its application. A statute is overbroad if it bans speech which could constitutionally be forbidden but also bans speech which is protected by the First Amendment. The general rule articulated by the Supreme Court is that “the Government may not suppress lawful speech as the means to suppress unlawful speech.”[30]  This rule reflects the judgment that “[t]he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted.”[31]  Hence, the problem we would encounter is the constitutional application of CIPA—filters wrongly block protected speech while at the same time do not catch every single website that should be blocked.  A library in compliance with CIPA would bar patrons from accessing thousands of sites offering fully constitutionally protected content while at the same time still not accomplishing the main goal of Congress: the protection of children from viewing obscene and pornographic websites.

B.        Pro-CIPA: Filters Are Like Librarians’ Collection Development Policies

            Interestingly, the Supreme Court focused on reconciling the result in ALA by comparing filters to the deference given to library book selection policies.[32]  That is, when libraries block Internet pornography from their computer terminals, they are simply declining to put onto their computer screens the same content they have traditionally excluded from their bookshelves—indeed, librarians are simply exercising their discretion as to the content that their libraries will contain, and how their library resources will be used. Essentially, librarians make choices regarding library materials—internet filters do the same thing.

V.        My Professional Philosophy

I personally have a problem with the Supreme Court’s rationale quite simply because it is illogical to compare filters with a librarian’s selection for books and other materials.  First, it implies that librarians are not capable of affirmatively making a choice to include or exclude appropriate material.  The filters apparently act as proxies for the librarians and that is enough.

Furthermore, the Supreme Court did not seem to grasp the changing role of libraries.  The old model described librarians as “information gatekeepers.”[33]  In contrast, libraries are viewed today as providing access to information—indeed, the Library Bill of Rights explicitly affirms this policy.  Admittedly, libraries cannot provide universal coverage—it is “[t]he librarian’s responsibility…to separate the gold from the garbage, not to preserve everything.”[34]  And it is true that society needs librarians to make certain inevitable content-based judgments.  However, the Court took this a step farther and compared the editorial discretion of a Library to that of public television stations.[35]  Let’s say that a public television station refused to air a debate on homosexual marriage or abortion because it felt that the programs were too controversial.  This is considered constitutional, and viewers would probably accept the decision.[36]  But, if a public library refused to acquire books on these topics—the result would be inconsistent with the role that libraries are expected to play.  While it may be permissible to fail to stock books on these topics based on limited resources, it probably would not be okay for a library to make an absolute value judgment and refuse to put anything like that on the shelves.  That is, the key difference is that it is valid for librarians to  make choices about the relative values of different materials but it is not okay to make absolute judgments since such judgments deny access to some information without also providing access to other information.[37]

In short, I feel that Internet filters are an ineffective way of protecting children and adults from the trappings of the Internet.  Furthermore, I feel that filters, because they censor constitutionally protected materials, are generally inappropriate in a public library setting—especially if the largest group of clientele includes adults.  My largest complaint is that after the ALA case, it still leaves libraries open to attack.  I know that some libraries have opted to forgo federal funding—I probably would as well.