On Monday, June 23, the U.S. Supreme Court voted 6 - 3 to uphold the Children's Internet Protection Act (CIPA), which requires public libraries seeking government subsidies to install filtering software to block materials considered obscene, child pornography, or "harmful to minors." The American Library Association (ALA) and American Civil Liberties Union (ACLU) had challenged the law, contending that it violated the First Amendment. "We are disappointed with [the decision]," said Jenner & Block attorney Theresa Chmara, counsel for ALA. "It's unconstitutional for both adults and minors. It adds a burden to patrons' ability to access information."
"The Supreme Court, which has been such a strong defender of free speech in other contexts, has made an unfortunate decision this time," said Chris Finan, president of the American Booksellers Foundation for Free Expression (ABFFE), one of the groups that filed an amicus brief in support of ALA and ACLU earlier this year. "The First Amendment rights of library users will suffer as a result."
The ALA's and ACLU's legal challenge to CIPA began a little over a year ago after the government appealed to the Supreme Court a lower court's decision that CIPA was facially invalid. The ALA and ACLU argued that Internet filtering software would block tens of thousands of constitutionally protected Web Sites that include important information, and, as such, it violated patrons' First Amendment rights. The plaintiffs also stressed that it wasn't even guaranteed that the filters would block all illegal materials.
The government countered that what libraries make available for patrons is not subject to strict constitutional judgment. Furthermore, in a March 5 hearing, Justice Stephen Breyer stressed that an adult Internet user can ask the librarian to disable the filters, as reported by the Associated Press.
In his opinion, Chief Justice Rehnquist compared the use of software filters to librarians' discretion in choosing to exclude pornography from their print collections because they deem it inappropriate. However, due to the vast and ever-changing nature of the Internet, segregating Internet material item by item would not be possible. Furthermore, he wrote, "[T]he dissents fault the tendency of filtering software to 'overblock' . Assuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled. When a patron encounters a blocked site, he need only ask a librarian to unblock it or (at least in the case of adults) disable the filter."
In the complicated Supreme Court ruling, only three justices actually joined Chief Justice William H. Rehnquist's opinion: Justices Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas. "Five [justices] agreed with ALA that filters block constitutionally protected speech," Chmara explained. However, two of those justices, Anthony M. Kennedy and Stephen G. Breyer, upheld CIPA only because of its provision requiring libraries to be able to disable Internet filters at the request of an adult patron. To read the opinions, click here.
As a result, the Court's decision has now placed significant burden on libraries. Noted Chmara, "Individual librarians could be sued [by patrons]" if the library does not have a system to disable the filtering software quickly.
In a press statement, ALA denounced the Supreme Court ruling: "Forcing Internet filters on all library computer users strikes at the heart of user choice in libraries and at the libraries' mission of providing the broadest range of materials to diverse users. Today's Supreme Court Decision forces libraries to choose between federal funding for technology improvements and censorship. Millions of library users will lose." --David Grogan