U.S. Supreme Court Upholds the Constitutionality of Internet Pornography Filters as a Condition of Federal Assistance to Public Libraries
In a 6-3 decision yesterday, the U.S. Supreme Court upheld the constitutionality of two federal statutes that condition federal assistance to public libraries upon the use of Internet filters to block access to materials that are obscene, pornographic, or otherwise harmful to minors. In United States v. American Library Ass’n, the Court ruled that the Children’s Internet Protection Act (“CIPA”), which provides public libraries discount Internet access under the E-rate provisions of the Communications Act, and the Library Services and Technology Act (“LSTA”), which provides direct grants, did not violate the First Amendment by requiring that public libraries use Internet filtering software.
In a plurality opinion written by Chief Justice Rehnquist and joined by Justices O’Connor, Scalia, and Thomas, the Court held that CIPA (1) does not induce libraries to violate the First Amendment because they already have broad discretion to decide what materials to provide; and (2) does not impose an unconstitutional condition on libraries because Congress may broadly define the limits of programs supported by public funds. The plurality opinion rejected the reasoning of a specially designated three-judge panel, which had concluded that libraries’ provision of Internet access creates a public forum open to any speaker, that the government’s exclusion from the forum of speech whose content it disfavors is subject to “strict scrutiny,” and that Internet filters were not narrowly tailored because they would block constitutionally protected speech.
Relying in part on Arkansas Educ. Television Comm’n v. Forbes, and reinforcing that decision’s 1998 holding that public forum principles do not apply to public television broadcasts, the plurality found that Internet access in public libraries was not a “traditional” public forum like sidewalks, because the Internet did not exist until recent times. The Court also held that Internet access in public libraries is not a “designated” forum established by the government for free speech, because libraries do not acquire Internet terminals for the purpose of providing Web publishers with a venue for self-expression. The Court concluded that the use of filters is analogous to the selection of print materials by librarians and that the “traditional mission” of public libraries is to exercise discretion in providing a selection of materials to the public.
Justices Kennedy and Breyer concurred in the Court’s judgment but filed separate opinions. Justice Kennedy emphasized that, because the government interest in protecting young library users from inappropriate material is compelling and because librarians may unblock filtered material or disable filters upon request by an adult user, the statute is not unconstitutional. Justice Breyer advocated applying “heightened scrutiny” to the statute but concluded that any speech-related harm was not significant when compared to the statute’s legitimate objective of protecting minors.
Justice Stevens dissented, calling CIPA “a law that prohibits reading without official consent.” He concluded that CIPA is both overbroad, restricting permissible speech when the filters fail and restricting access even on computers that were not purchased with federal assistance, and underbroad, giving parents a false sense of security in the reliability of the filtering software. Justice Stevens pointed to less restrictive means of limiting children’s access to objectionable material, including the use of parental consent, recessed monitors, and placement of terminals out of the line-of-sight of other patrons. He also noted that such means – implemented at the local level – would be consistent with the holding in the Supreme Court’s 1973 watershed obscenity decision, Miller v. California, which reasoned that local-level decisionmakers are in the best position to judge and enforce local community standards.
Justice Souter filed a separate dissent, in which Justice Ginsburg joined. They concluded that CIPA oversteps Congress’ Article 1 spending power. Rejecting the plurality’s argument that the use of filters is akin to the selection of print materials by librarians, Justice Souter wrote that “there is no preacquisition scarcity rationale” because Internet materials are not limited by space or money. Justice Souter opined that the proper analogy is not “passing up a book that might have been bought,” but rather “buying a book and keeping it from adults lacking an acceptable ‘purpose,’” or “buying an encyclopedia and then cutting out pages.” Justice Souter noted that vigilance against censorship is consistent with library policy over the course of the 20th century, in contrast with the “traditional mission” of selection emphasized by the plurality.
One interesting note is that while only three justices dissented, the concurrences by Justices Kennedy and Breyer suggest that a challenge to CIPA “as applied” might prevail, should the specific situation arise where an adult patron is unable to have a filter disengaged. Specifically, Justice Kennedy’s concurrence was based on the District Court’s finding that unblocking is possible at the request of adult patrons. He wrote, “[I]f some libraries do not have the capacity to unblock specific Web sites or to disable the filter or if it is shown that an adult user’s election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge, not the facial challenge made in this case.” Justice Breyer also relied upon the idea that unblocking presented only a small burden to adult patrons. Thus, if an adult patron could establish a denial of access, it might be possible to successfully mount an “as applied” legal challenge.
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