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Volume II, Issue 3, October 20, 2003

CIPA and the U.S. Supreme Court Ruling: Changing the Public Forum Roles of the Internet and Public Libraries

Catherine Kamil, Student, Wayne State University Library and Information Science Program, cakamil@aol.com

As a culture evolves, established institutions adopt new roles. Public libraries, for instance, now serve users of computers as well as readers of books. Then, too, as a culture evolves, so must its laws. In June of 2003, the library community watched closely as one federal law regulating computer use in libraries, the Children’s Internet Protection Act (CIPA), survived the Constitutional challenge launched by the American Library Association.

The problem, it was widely agreed, is that our children can pull up pornographic material on public access library computers. However, the proposed solution, mandatory Internet filters, remains controversial. Further, for the six justices of the U.S. Supreme Court who accepted the need for some sort of filtering and who discerned no Constitutional barrier to the law under review, there was still the task of legal justification.

The issue to be examined here is how the Court reached its decision. Our American legal system proceeds based on published opinions that explain a judge’s rationale for decision. This public process of legal reasoning links the case before a court to past and future situations and is ideally guided by traditional rules and by standards of integrity beyond immediate political agenda. In the ALA case, a widely fractured U.S. Supreme Court published five separate opinions focusing on various issues. One of these issues involves the “public forum” doctrine. In declaring that library Internet is not a “public forum,” a Supreme Court majority dismissed a viable line of precedent and cleared the way for communities to filter library Internet content on any basis deemed reasonable.

In United States v. American Library Association, the Supreme Court granted certiorari to the U.S. District Court for the Eastern District of Pennsylvania in order to resolve the First Amendment constitutionality of CIPA,1 Congress’s latest attempt to control the dissemination of “adult” material over the Internet. For public libraries, CIPA conditions two forms of federal assistance toward Internet provision on the installation of software that blocks images constituting obscenity or child pornography and that prevents minors from accessing material harmful to them. The District Court applied a two-pronged test in holding that CIPA requires libraries to violate the First Amendment: first, the filtering software is a content-based restriction on access to a public forum that is subject to strict scrutiny, and, second, although the U.S. government has a compelling interest in preventing the dissemination of obscenity, child pornography, or material harmful to minors, the use of software filers is not narrowly tailored to further that interest. In reversing the decision of the District Court, Justice Rehnquist, writing for the Supreme Court plurality (including Justices Scalia, O’Connor, and Thomas), declared that “Internet access in public libraries is neither a ‘traditional’ nor a ‘designated’ public forum.” In a concurring opinion, Justice Breyer agreed that the “public forum” doctrine was inapplicable in the case.

Of course, “forum” and “public forum” may have one meaning in general usage as in MLA Forum or as in The Communications Decency Act of 1996 2 : “The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” However, as courts develop a doctrine by applying it to different situations, the doctrinal name becomes a term of art. In Perry Education Association v. Perry Local Educators’ Association, 3 the Supreme Court described and differentiated, in the light of the First Amendment, three types of public fora. The traditional public forum receives a high degree of constitutional protection:

In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." (Citation omitted.) In these quintessential public forums, the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. (Citation omitted.) 4

The limited, or designated,5 public forum, though originating by government designation, is similarly protected:

A second category consists of public property which the State has opened for use by the public as a place for expressive activity. The Constitution forbids a State to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place. (Citations omitted to cases involving university meeting facilities, a school board meeting, and a municipal theater.) Although a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum. Reasonable time, place, and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest. (Citation omitted.) 6

As to “public property which is not by tradition or designation a forum for public communication,” any content-based government regulation of speech will pass constitutional muster as long as it is reasonable. Id.

In ALA’s CIPA challenge, the District Court applied these definitions in favor of the middle category to find that, when the government provides Internet access in a public library, it creates a designated public forum. This determination echoed two lower court cases. In Kreimer v. Bureau of Police,7 the Court of Appeals for the Third Circuit determined that a public library constitutes a limited public forum, and it held that rules leading to the expulsion of a homeless patron were reasonable manner regulations of the patron’s First Amendment right to receive information. The Kreimer court twirled the public forum focus from a speaker’s right to convey information to the public’s right to receive it, a right which “includes the right to some level of access to a public library, the quintessential locus of the receipt of information.” And, “as a limited public forum, the Library is obligated . . . to permit the public to exercise rights that are consistent with the nature of the Library and consistent with the government’s intent in designating the Library as a public forum.”

In Mainstream Loudoun v. Board of Trustees of Loudoun County Library,8 Judge Leonie Brinkema, a former librarian, extended this public forum reasoning to a case involving Internet filters in a public library. She found that if the government chose to provide Internet access within the public library setting, then “it could not thereafter selectively restrict certain categories of Internet speech because it disfavors their content.” In Judge Brinkema’s view, Internet filtering is more like the book removal in Board of Education, Island Trees Free Union School District No. 26 v. Pico,9 than book selection. She analogized a filtered Internet to a “collection of encyclopedias from which [the library] has laboriously redacted portions deemed unfit for library patrons.” Accordingly, Judge Brinkema found the Internet filter at issue unconstitutional since, under requisite strict scrutiny, it was not the least restrictive means to achieve the government’s goal of protecting children from harmful material and of protecting adults from illegal material.

In its dicta, the Supreme Court has recognized the public forum qualities of cyberspace. A public forum need not be located in physical space.10 Moreover, In Reno v. ACLU,11 the High Court invalidated, on First Amendment grounds, two provisions in the Children’s Decency Act. In doing so, the Court described the Web as a "vast library including millions of readily available and indexed publications," also citing the lower court’s observation that content on the Internet "is as diverse as human thought."

So there were cases out there of a different spirit had the Supreme Court chosen to see them as it reasoned legally through the Government’s appeal in ALA, proceeding along steps of “like” and “not like,” comparing the situation at hand to prior cases. The problem is that nothing is quite like the Internet. In drawing parallels to Internet access in public libraries, the High Court had choosing room as to “what it’s like” and “how it’s like,” incurring in the process an inevitable trail of “but it differs significantly also.” Thus the Supreme Court analogized a library’s selection of Internet sites to its selection of books, to a public television station’s choice of programs,12 and to an art funding program’s selection of grant recipients.13 But, but. . . , you might say, the Internet is no more like a book than an ocean resembles a puddle, and the Forbes and Finley cases, as well as collection development, involve distribution of limited resources, where additional resources must be expended for a library to filter the Internet (a distinction emphasized by Judge Brinkema in Mainstream Loudoun, and by Justice Souter in his dissenting opinion in ALA).

To paraphrase the ALA Court plurality, then, CIPA’s requirement of Internet filters in public libraries is a case of “when the government gives you money, it can tell you how to spend it.” It is not a case of “when the government permits expression, it must do so fairly as to content.” Accordingly, CIPA dictates selection of information; it does not call for removal. To justify these alignments, if one can gauge by repetition, the Court plurality emphasized the traditional role and mission of libraries (italics added): “to fulfill their traditional mission, public libraries must have broad discretion”; “forum analysis . . . [is] . . . incompatible with the discretion public libraries must have to fulfill their traditional missions”; a “library’s need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worthwhile material”; “the E-rate and LSTA programs were intended to help public libraries fulfill their traditional role.” With libraries legally confined to their traditional role, and with public fora of the traditional type similarly confined to places “which by long tradition or by government fiat have been devoted to assembly and debate,”14 how shall the twain ever meet? Only Justice Souter in his dissent recognized the efforts of the American Library Association to evolve in its mission towards the general rule that “any adult entitled to use the library has access to any of its holdings,” and, as to the content of those holdings, to a “basic position in opposition to censorship.” 15

Now does the 21st century speaker seeking to reach the greatest number of people in the shortest time really take to a park or street corner? As one commentator has noted, “Minds are not changed in streets and parks as they once were. To an increasing degree, the more significant interchanges of ideas and shaping of public consciousness occur in mass and electronic media.”16 And among these media, the Internet uniquely fuels democracy as it “has empowered smaller entities and even individuals, enabling them to widely disseminate their messages and, indeed, reach audiences as broad as those of established media organizations.”17 “The idea of structuring a public forum,” after all, “is rooted in the belief that, in particular, those with unpopular and minority views who may not have access to private expressive space should have a public outlet for free expression. This is not for the benefit of the individual but for the sake of public debate and the airing of all relevant views.”18 Though cyberspace may not be “public” in a traditional way, the Internet is accessible to the public far beyond streets and parks. And for those Americans without home Internet (over half of U.S. households, according to 2000 census data 19), the public library may be the only place citizens can hear speakers from this “forum.” Moreover, the traditional distinction between speaker and listener blurs in light of the Internet’s opportunity for interactive dialog. The Net is so much more that the “technical extension of the book stack” cited by Justice Rehnquist in ALA.

Of course, one cannot fail to recognize that the Internet, ocean that it is, presents pages that are blatantly illegal on their faces, grossly offensive to most adults, or that, in some situations, constitute sexual harassment or even a form of prostitution.20 Even the dissenting Supreme Court justices acknowledged that the governmental interest in shielding children from exposure to indecent material is compelling.21 Here the Court echoes the voices of many Americans who have implored their elected representatives to protect our children from the dark alleys of cyberspace.

Had the High Court recognized the speak-and-be-heard power of library Internet in following the public forum cases, then the crux of the issue would be whether, given current technology and library ingenuity, Internet filters are applied with sufficient narrowness in furthering a compelling objective. This is a thorny battlefield to be sure, raising issues of underblocking, overblocking, and the facility with which adults can have filters disabled. However, a focus on the gold of the Internet as opposed to its grime would have, in the long run, fostered freedom in our national dialog, a dialog which increasingly occurs in the no place and every place known cyberspace.

Undoubtedly, the 21st Century will continue to undermine our notion of place. Telecommuters link residence with a distant or physically fragmented workplace. Mass e-mailing is achieved with one click of a finger. Our nation’s assailants strike without a geographical base. And, all the while, profuse quantities of information race along hidden superhighways so numerous that site of origin becomes irrelevant. In the thick of this evolution, and despite the occasional setback, libraries are fashioning a role of service in the Age of Information.

Works Cited

Statutes

Children’s Internet Protection Act, 114 Stat. 2763A-335 (2001), codified in Telecommunications Act of 1996, 47 U.S.C. §254 (h)(6) and Library Services and Technology Act, 20 U.S.C. § 9134 (f).

Communications Decency Act of 1006, 47 U.S.C. §230(a)(3).

Cases: U.S. Supreme Court

Arkansas Ed. Television Commission v. Forbes, 523 U.S. 666 (1998).

Board of Education, Island Trees Free Union School District No. 26 v. Pico, 457 U.S. 853 (1982).

Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788 (1985).

National Endowment for the Arts v. Finley, 524 U.S. 569 (1998).

Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37 (1983).

Reno v. ACLU, 521 U.S. 844 (1997).

United States v. American Library Association, No. 02-361, 123 S. Ct. 2297, 156 L. Ed. 2d 221, 2003 U.S. LEXIS 4799, 71 U.S.L.W 4465 (U.S. Supreme Court, June 23, 2003).

Cases: Lower Federal Courts

Kreimer v. Bureau of Police, 958 F.2d 1242 (3rd Cir.1992)

Mainstream Loudoun v. Board of Trustees of Loudoun County Library, 2 F. Supp. 2d 783 (E.D. Va. 1998).

Law Review Articles

Bell, Bernard W. (March 2001). Filth, filtering and the First Amendment: Ruminations on public libraries’ use of Internet filtering software. 53 Federal Communications Law Journal 191.

Cohen, Daniel Mark (Spring 2003). Unhappy anniversary thirty years since Miller v. California: The legacy of the Supreme Court’s misjudgment on obscenity. 15 St. Thomas Law Review 545.

Fischer, Ronnie J. (Winter 2003). “What’s in a name?”: An attempt to resolve the analytic ambiguity of the designated and limited public fora. 107 Dickenson Law Review 639.

Hunter, Dan (March 2003). Cyberspace as place and the tragedy of the digital anticommons. 91 California Law Review 439.

Noveck, Beth Simone (Winter 2003). Designing deliberative democracy in cyberspace: the role of the cyber-lawyer. 9 Boston University Journal of Science and Technology Law 1.

Websites

Constitutional Conflicts, page by Doug Linder from University of Missouri – Kansas City Law School, discusses public forum cases: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/home.html

“Falling Through the Net” from the National Telecommunications and Information Administration: http://www.ntia.doc.gov/ntiahome/digitaldivide/

End Notes

1 47 U.S.C. §254 (h)(6) and 20 U.S.C. § 9134 (f).

2 47 U.S.C. §230(a)(3).

3 460 U.S. 37 (1983).

4 460 U.S. at 45.

5 These terms are often used interchangeably, though one commentator has attempted so sort out the differences between the limited and designated public forum categories, forging through a tangle of lower court decisions. See Fischer, Ronnie J. (Winter 2003). “What’s in a name?”: An attempt to resolve the analytic ambiguity of the designated and limited public fora. 107 Dickenson Law Review 639.

6 460 U.S. at 45.

7 958 F.2d 1242 (1992).

8 2 F. Supp. 2d 783 ( E.D. Va. 1998).

9 457 U.S. 853 (1982).

10 Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788, 801 (1985), Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37 (1983).

11 521 U.S. 844 (1997).

12 Arkansas Ed. Television Commission v. Forbes, 523 U.S. 666 (1998).

13 National Endowment for the Arts v. Finley, 524 U.S. 569 (1998).

14 Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 45 (1983).

15 123 S.Ct. at 2322.

16 Hunter, Dan (March 2003). Cyberspace as place and the tragedy of the digital anticommons. 91 California Law Review 439.

17 Bell, Bernard W. (March 2001). Filth, filtering and the First Amendment: Ruminations on public libraries’ use of Internet filtering software. 53 Federal Communications Law Journal 191.

18 Noveck, Beth Simone (Winter 2003). Designing deliberative democracy in cyberspace: the role of the cyber-lawyer. 9 Boston University Journal of Science and Technology Law 1.

19 The share of houses with Internet access rose to 41.5% in August of 2000, still leaving 58.5% of homes without access. See “Falling Through the Net” from the National Telecommunications and Information Administration at http://www.ntia.doc.gov/ntiahome/digitaldivide/ which cites figures from the 2000 census.

20 Cohen, Daniel Mark (Spring 2003). Unhappy anniversary thirty years since Miller v. California: The legacy of the Supreme Court’s misjudgment on obscenity. 15 St. Thomas Law Review 545.

21 United States v. ALA, 123 S. Ct. at 2319 (Souter, J. dissenting), citing Reno v. American Civil Liberties Union, 521 U.S. 844, 869 (1997).