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Volume I, Issue 1, February 20, 2002
Suppression of Speech by the United States Government: The Children's Internet Protection Act
Lynn Sutton, Associate Dean, Wayne State University Libraries, firstname.lastname@example.org
Intellectual freedom is a core value of librarianship. Passage of the Children's Internet Protection Act (CIPA) is seen by librarians as a threat to their patrons' freedom to receive information. The author documents recent legal precedents and explores the controversies involved in this complex issue.
The Children's Internet Protection Act (CIPA) places unconstitutional speech restrictions on libraries accepting federal funds. These restrictions on speech come in the form of "filters"--required software installed on library computers that block certain categories of visual depictions. This paper will demonstrate that this law clearly constitutes suppression of constitutionally protected speech, citing recent legal precedents.
In the library setting, freedom of speech takes the form of intellectual freedom, with the emphasis less on the expression of ideas than on the right to receive them. Librarians commonly phrase this as "access to information." In order for true deliberation to take place in a democratic society, citizens need to be well informed on all sides of the issues. Intellectual freedom is one of the most closely held core values of librarianship. Along with the American Civil Liberties Union (ACLU), the American Library Association (ALA) has been a major litigant involving free speech cases, including the Communication Decency Act in 1997 and the Children's Online Protection Act, currently before the Supreme Court. ALA's Office of Intellectual Freedom has been an important provider of information and its Freedom to Read Foundation has been a funding source for free speech activism. Clearly, the ALA is a staunch, non-governmental organization devoted to intellectual freedom.
All classifications of libraries -- public, school, academic and special -- are fierce defenders of intellectual freedom, which they see as the right of their patrons to receive the information they need. In particular, libraries that receive public funds have special obligations to uphold the First Amendment. In 1992, the Third Circuit Court of Appeals held that public libraries are designated "limited public fora" for access to information, meaning places set aside by the government for expressive activity. In Kreimer v. Morristown, The Court found that "Our review of the Supreme Court's decisions confirms that the First Amendment does not merely prohibit the government from enacting laws that censor information, but additionally encompasses the positive rights of public access to information and ideas" (OIF, 2002, p. 324).
What are the issues surrounding children and their rights to intellectual freedom? Under the U.S. Constitution, children do have lesser First Amendment rights than adults, but those rights remain substantial. "The Supreme Court has said that '[s]peech cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them'" (Peck, 2000, p. 4). It is legal to restrict minors' access to harmful materials but not all minors can be treated the same and the restrictions cannot be so broad that adults' right of access is adversely affected. "The American Library Association believes strongly that young people are entitled to freely access ideas and information, subject only to limitations imposed by their parents or guardians" (OIF, 2002, p. 38). This is an important point, as it is not the government, nor librarians as the government's agents, who should decide what is or is not suitable for any particular young person. Instead, it is the responsibility of the parent. Limiting access to books, videos, compact discs or the Internet does not protect the young from the complex and challenging world that confronts them, but can deprive them of information that is important to them or perhaps even vital for their learning and development as maturing persons. Thus, if filters in libraries inadvertently block a teenager's access to Internet materials on sex education along with x-rated sites, neither the teenager, nor society at large, is well served.
There is a growing body of legal cases involving protection and provision
of free speech rights by libraries. As soon as governmental bodies attempt
to restrict material available to their citizens based on content, libraries
and civil liberties activists file suit to quash the effort. The Communication
Decency Act was signed into law in February 1996 with the intent of keeping
electronically received "indecent" material away from children under
the age of eighteen. The American Library Association and American Civil Liberties
Union immediately filed separate suits and the case was eventually decided
by the Supreme Court under Reno v. ACLU. The plaintiff's three main
arguments were: first, that prohibiting material on the ground that it is
"indecent" is unconstitutionally overbroad; second, that not enough
consideration was given to alternative ways parents could protect their children;
and third, that the Internet is more like a print medium than a broadcast
medium. In a 1997 landmark ruling, the Supreme Court agreed with the library
litigants on each point. The justices said:
Not to be thwarted by this initial defeat, in 1998 Congress passed "son of CDA" legislation in the form of the Child Online Protection Act (COPA), which bans commercial Internet expression that is "harmful to minors." This was an attempt to fit legislation within the language of the Reno decision by limiting the law only to commercial Web sites that display material that is "harmful to minors" as defined by "contemporary community standards." The ACLU immediately challenged the legislation and was supported first by a temporary restraining order and then by preliminary injunction finding that the plaintiffs were likely to succeed on the merits of their claim that COPA constituted a violation of the First Amendment. The Third Circuit Court of Appeals later upheld this finding. The ACLU argues that COPA is still overbroad, because any effort to verify the age of the user would prevent adults from access to constitutionally protected speech and further, because of the global nature of the Internet, COPA would necessarily restrict all Web speech to the standards of the most restrictive community. Under Reno, the Court clearly established that the Internet deserves the highest level of protection available from government intrusion, strict scrutiny, meaning the government must both demonstrate a compelling interest and use the least restrictive means to articulate that interest. Arguments for Ashcroft v. ACLU began on November 28, 2001 and the case is still pending.
One federal court has already addressed the issue of using limiting speech through filters in public libraries. Mainstream Loudon v. Board of Trustees of Loudon County Library examined the First Amendment implications of a library's installation of site-blocking filtering software on all computers to restrict access to child pornography, obscenity and material "harmful to minors." In 1998, the Court firmly rejected the library policy on the now-familiar grounds that the library served as a limited public forum whose stated primary objective was to provide unrestricted access to all avenues of ideas. The Court found that strict scrutiny applied, and the library board was unable to make a successful case that time, place or manner restrictions pertained. No compelling government interest was demonstrated, based on the scattered and isolated incidents of children being exposed to pornography across the country, and neither could the library claim that the filters they used were the least restrictive means available.
A recent challenge to free speech in libraries was from a mother in California who twice sued the Livermore Public Library for making it possible for her twelve year old son to view and download pornography at the library. The first time, she claimed the library violated state law for maintaining a computer system that allowed access to material that was obscene or harmful to minors. The Court rejected this claim, citing immunity for service providers against state law liability for third party postings. A few months later, in January 1999, she claimed the library violated the due process clause of the 14th Amendment by causing harm to its citizens. This was also summarily dismissed, as there is no constitutional obligation on the part of libraries to protect children from harmful speech. The ruling was upheld by the California Court of Appeal.
Children's Internet Protection Act (CIPA)
These legal precedents strongly suggest that the Children's Internet Protection Act is unconstitutional and deprives citizens of the right to receive information. CIPA was specifically designed by Congress to withstand constitutional challenge. In simple terms, P.L. 106-554 requires libraries that receive federally-mandated commercial e-rate discounts for Internet access or certain funds from the Library Services and Technology Act (LSTA) to install "technology protection measures" on any and all computers that access the Internet by either children or adults. Such technology protection measures (commonly referred to as filters) must block or filter Internet access to visual depictions that are obscene, child pornography or harmful to minors.
Not coincidentally, obscenity, child pornography and material harmful to
minors are the acknowledged categories of speech that are not protected by
the First Amendment. Congress learned that the overbroad language in the Communications
Decency Act, for example, would not pass constitutional muster. Therefore,
CIPA was specifically designed to address only speech that could claim few
champions. The layperson often makes the mistake of equating all sexually
explicit material with obscenity and using the terms "pornography"
and "obscenity" interchangeably. Pornography has no constitutional
definition, unlike obscenity. The current definition of obscenity was narrowly
defined by the Supreme Court in Miller v. California. To meet the obscenity
test, a court or jury must find that:
It is this rigorous task that Congress has delegated to the software designers of off-the-shelf blocking filters. In doing so, legislators ignored the advice of their own research panel that was charged with identifying technological or other methods to reduced Internet access to material that is harmful to minors. In its final Report to Congress on October 20, 2000, the COPA Commission stated, "This technology raises First Amendment concerns because of its potential to be over-inclusive in blocking content. Concerns are increased because the extent of blocking is often unclear and not disclosed, and may not be based on parental choices" (II.B. Filtering/Blocking section). Chairman of the panel, Donald Telage, said "not even the most-conservative members of the commission felt that [blocking] was the road to go down" (ACLU, 2001). Clearly, the concern is that constitutionally protected speech will certainly be blocked in the course of blocking access to speech that falls outside the protection of the First Amendment. The list of sites that have been blocked by inexact filters is almost comical: the website for Super Bowl XXX, Congressman Dick Armey and Beaver College in Pennsylvania (all for obvious reasons) as well as more inexplicable sites such as passages from Saint Augustine's Confessions, a map to Disney World and a list of all passengers on the Mayflower. Yet barely two months after the COPA Commission Report was issued, P.L. 106-554 was passed by Congress.
Although called the Children's Internet Protection Act, the law requires that blocking software be installed on all computers with Internet access, during any use of such computers. This obviously restricts the access of adults as well as minors. One wonders if this was simply a blunder by Congress or if it were intentional. Plaintiffs (ALA, et al., 2001) point out that the legislative history of the Act indicates that Congress fully intended the restrictions to be broader than the narrowly defined limits of legal obscenity.
Government defendants claim that the First Amendment is not the issue, since the restrictions are attached to a federal funding program. Libraries are not compelled to accept the funding. However, in their response to the defendant's motion to dismiss, plaintiffs argue,
The government also claims that certain disabling provisions provide an "out," whereby library authorities may (or may not) enable access for bona fide research or other lawful purposes. However, stigmatizing citizens in this way, who have to ask for materials that are recognized to be controversial, has not been acceptable to the Courts. And granting broad discretion to library officials, with no provisions for guidance in interpretation, hardly meets the rigorous tests laid out in Miller.
CIPA enjoyed bi-partisan support in Congress and was signed into law by President Bill Clinton in December 2000, just before he left office. The new Bush administration immediately began to rigorously administer the complex program and timetable of adherence. Predictably, the American Library Association and American Civil Liberties Union simultaneously filed suit in March 2001. The cases were subsequently consolidated by the Court, which will consider them together, as was done with the Communications Decency Act. Under provisions of the law itself, legal challenge goes right to a three-judge panel of the Court of Appeals and any appeal of their decision goes straight to the Supreme Court, which is required to hear challenges to this law. The government filed an early motion to dismiss, which was quickly denied by the Third Circuit Court of Appeals in Philadelphia in July. Trial is scheduled to begin March 25, 2002.
From briefs filed by ALA and ACLU, the merits of the case are straightforward. The Children's Internet Protection Act requires libraries, as governmental agents, to restrict the right of citizens to receive speech, not only speech that falls outside the protection of the First Amendment, but also, necessarily, speech that is clearly protected. This is unconstitutional. The government has no right to subsidize a traditional public forum or limited public forum for the purpose of promoting expression and then act to suppress a category of protected speech based on content. "The same constitutional rules apply to the 'limited' or 'designated' public forum, as long as the government continues to designate it for the expressive activities of the public" (Peck, 2000, p. 14). Libraries have been expressly designated as safe havens for the purpose of seeking and receiving information. It is up to the individual to decide which information is valuable and which may be discarded. Specifically, it is not the place of the library, the government or the government's agent, in the form of an inanimate piece of software, to make these distinctions.
It has been demonstrated that the Children's Internet Protection Act clearly violates the constitutional right to freedom of speech. Libraries have been designated by the government as places where speech may be freely received and freely expressed. Accordingly, the government may not restrict the right of citizens to access speech that is legally protected, and that is what CIPA does. There is not agreement in our society about limitations that may be imposed on sexually explicit speech. In the case of CIPA, the bottom line comes down to balancing this question: is it better to block protected speech in the course of blocking unprotected speech? Congress is in favor of this action, while information professionals and civil liberties experts strongly oppose it. The U.S. Supreme Court will eventually issue the tie-breaker.
American Civil Liberties Union. (2001, March 20). ACLU files challenge to library Internet censorship in case fast-tracked for Supreme Court review. Retrieved from http://www.aclu.org/features/f032001a.html
American Library Association, et al., Plaintiffs. (2001, June 29). Response in opposition of plaintiffs the American Library Association, et al., to defendants' motion to dismiss plaintiffs' complaints. Retrieved from http://www.ala.org/cipa/alacipabrief.pdf
COPA Commission. (2000, October 20). Final report of the COPA Commission presented to Congress, October 20,2000. Retrieved from http://www.copacommission.org/report
Office for Intellectual Freedom of the American Library Association. (2002). Intellectual freedom manual (6th ed.). Chicago: American Library Association.
Peck, R.S. (2000). Libraries, the First Amendment, and cyberspace: What
you need to know. Chicago: American Library Association.