AAP on the Hill / Issues: First Amendment

July 01, 2003

Supreme Court Upholds Children’s Internet Protection Act

On June 23, in a fragmented 6-3 ruling which produced 5 separate opinions, the U.S. Supreme Court failed to find the Children’s Internet Protection Act (CIPA) unconstitutional on its face. However, at least two members of the majority, Justices Anthony M. Kennedy and Stephen G. Breyer, left the door open for further challenges to the law “as applied” if it proves too burdensome. Passed by Congress in 2000, CIPA mandates the use of blocking and filtering software on all public library computers as a condition for receiving e-rate subsidies or any other federal funding. 
 
The decision was a great disappointment to ALA, the ACLU, and a host of other plaintiffs who challenged the law in the spring of 2001 as an unconstitutional abridgement of the right of library patrons to access large amounts of constitutionally-protected material on the Internet.  The challenge was initially successful. In May 2002 in a detailed and lengthy opinion, a panel of three federal judges in Philadelphia held CIPA to be unconstitutional.  AAP was not a plaintiff in the suit, but took the lead in organizing a broad coalition of publishers, booksellers, journalists and authors to provide amicus support when the case went up to the Supreme Court this year.
 
Rejecting the lower court’s finding that by providing Internet access a library creates a limited public forum that requires the application of a strict scrutiny standard to any content-based regulation, the plurality opinion, written by Chief Justice Rehnquist and joined by Justices Scalia, O’Connor, and Thomas, found that filtering Internet access is analogous to selecting materials for the library’s collection and held CIPA to be a “a valid exercise of Congress’ spending power.”  
 
Justices Kennedy and Breyer, although joining the majority in upholding the law, did so for entirely different reasons, each writing a separate opinion.  Justice Kennedy found that if an adult user can have the filter disabled “without significant delay,” then the statute does not impose an undue constitutional burden.   Justice Breyer, rejected the need for “strict scrutiny” and applied a “form of heightened scrutiny,” finding little difference between a request to have a filter disabled and the burden imposed by “traditional library practices” such as having materials in closed stacks or on interlibrary loan which require patrons to make requests that are not anonymous and to wait for materials.  As Judith Krug, director of ALA’s Office for Intellectual Freedom pointed out: “Justices Kennedy and Breyer joined the judgment because they believe adult patrons need only ask the librarian to ‘please disable the filter’ and need not provide any reason for the request. In light of this, we expect libraries that decide they must accept filters to inform their patrons how easily the filters can be turned off.”  Ms. Krug predicted that many libraries would consider rejecting desperately needed federal funds rather than compromise their ability to provide patrons with unfettered Internet access.
 
Justice Stevens, in a vigorous dissent, wrote: “Rather than allowing local decision-makers to tailor their responses to local problems, the Children’s Internet Protection Act (CIPA) operates as a blunt nationwide restraint on adult access to ‘an enormous amount of valuable information’ that individual librarians cannot possibly review…In my view this restraint is unconstitutional.”  In another strong dissent, Justice Souter, joined by Justice Ginsburg, pointed out that notwithstanding the government’s assertions to the contrary, there is no assurance in the statute or in the implementing regulations set out by the FCC that having a filter turned off would be a simple matter.   “We therefore have to take the statute on the understanding that adults will be denied access to a substantial amount of non-obscene material harmful to children but lawful for adult examination, and a substantial quantity of text and pictures harmful to no one,” Justice Souter wrote. Totally rejecting the analogy between filtering Internet access and library materials acquisition, he concluded that: “There is no good reason…to treat blocking of adult enquiry as anything different from the censorship it presumptively is.  For this reason, I would hold in accordance with conventional strict scrutiny that a library’s practice of blocking would violate an adult patron’s First and Fourteenth Amendment right to be free of Internet censorship when unjustified (as here) by any legitimate interest in screening children from harmful materials. On that ground, the Act’s blocking requirement in its current breadth calls for unconstitutional action by a library…”  

For more information contact:

Judith Platt
Email: jplatt@publishers.org