INFORMATION & TECHNOLOGY LAW

The Supreme Court to
Review the Right to Surf at the
Public Library

By Jon M. Garon*
As published in Interface Tech News, January, 2003

Over 95% of the public libraries in the United States provide Internet access to their patrons. Concerned about the kind of material available on the Internet, however, Congress has been trying since the 1996 Communications Decency Act to regulate access to this content. The most recent attempt has been the Children's Internet Protection Act ("CIPA") which Congress enacted in 2001. Like the many other attempts, the Supreme Court has agreed to review the validity of the regulations.

The goal of CIPA is not terribly different from the objective of the other congressional attempts to clean up the Internet. Congress hopes to eliminate at least some of the smut-filled content. The concern may not be totally unreasonable. According to evidence before the district court, of the approximately 11 million websites "[t]here are more than 100,000 pornographic Web sites that can be accessed for free and without providing any registration information, and tens of thousands of Web sites contain child pornography." Of course adult pornography is legally protected material for adults. Only obscene material and material involving child pornography may be legally banned. Unfortunately, the difference between obscenity and pornography is subjective, case specific, and can only be determined by a court after a full trial.

Given the problem of distinguishing obscenity from the rest of pornography, as well as the more critical problem of filtering pornography from more credible adult content, most states have greatly reduced their attempts to bar obscenity. Through the adoption of CIPA, however, Congress has taken another approach.

Rather than barring obscene material and child pornography from the Internet, Congress placed limitations on those libraries which receive federal funds and federal discounts. To remain eligible for federal discounts for Internet access and equipment funding, the library must comply with CIPA. To be in compliance, the library must certify that it is "enforcing a policy of Internet safety that includes the operation of a technology protection measure with respect to any of its computers with Internet access that protects against access through such computers to visual depictions that are — (I) obscene; (II) child pornography; or (III) harmful to minors," and that it is "enforcing the operation of such technology protection measure during any use of such computers by minors."

The technological measures most commonly used by libraries include Internet filtering software products such as SurfControl's Cyber Patrol, N2H2's Bess/i2100, and Secure Computing's SmartFilter. The software provides network blocking for categories of content and specific sites. They cannot distinguish between general adult content and the content prohibited by CIPA, so the effect of CIPA's compliance certification is to eliminate access to most adult materials for all users. CIPA is not limited to minors, but applies to all library computers, limiting access to children, adults, and staff.

While the limitation on public access to the Internet is controversial, the issues involved with CIPA are more complex than most other congressional attempts to limit adult materials. First, most libraries have adopted some form of Internet use policies. These policies range from bans on use of computers for adult content to requirements that adult content only be viewed on machines with 'privacy screens' so library staff and other patrons are not exposed to the viewer's content. Still other libraries ban the use of the computers for hateful speech or even prohibit the use of computers for dating services. Unless the library is a state or federal agency, it is free to adopt its own policy and invoke its own free speech rights. Some libraries welcome the regulations because they want to reduce exposure to pornography. Many are equally concerned however, that the CIPA limitations require filtering software which blocks legitimate, valuable content.

Second, the court views public libraries as state institutions, so these public libraries have the same obligation as other parts of the government not to violate the constitutional rights of the public.

To attempt to pass constitutional muster, Congress has attempted to condition federal funds on "voluntary compliance" rather than enact a ban of the speech in question. Had Congress merely required the filtering software, the provision would have been easily declared unconstitutional. Congress has more leeway, however, to condition the receipt of federal funds on acquiescence to the federal mandate.

The first court to review CPIA has determined that the condition of federal funding for public libraries still violates the First Amendment. The federal funding cannot cause the public library to violate the First Amendment. No filtering software available can distinguish between adult material and obscene material. Because of the over-inclusiveness of the filtering software, CIPA effectively bars tremendous amounts of constitutionally protected content from the libraries, which interferes with the public's First Amendment right to receive information. This aspect of the First Amendment was central to the Supreme Court's decision to declare the 1996 Communications Decency Act unconstitutional and provides a pivotal part of the district court's opinion invalidating CIPA.

The district court took significant steps to distinguish between the library's right to spend its own funds to select its library collection from the right to selectively filter from among the Internet messages. The decision to place Internet terminals in the library opens the library to the 2 billion web pages available on the Internet. To select out certain material for prohibition is not exercising the library's editorial function but creating a content-based limitation on the material.

Nonetheless, the distinctions made by the district court are narrow ones. The Supreme Court may feel the current, lower court opinion impinges too heavily on the discretion of the individual libraries. The Supreme Court may also grant the government greater flexibility to fund those services it likes and choose not to fund those aspects of the program it dislikes. The Court's review of using federal funds to control content has been inconsistent. The Court has prohibited limitations on legal services while upholding limitations on counseling for abortion services.

When the Court reviews CIPA this spring it will undoubtedly narrow the basis for validating or invalidating the statute. Whatever the Court decides, however, the only certainties are that pornography will continue to be available on the Internet and that Congress will be preparing yet another statute designed to discourage it.

*Jon M. Garon is admitted in New Hampshire and California.

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