Document Type

Article

Publication Date

2005

Abstract

In June 2003, the Supreme Court, in United States v. American Library Ass’n, sent tremors through libraries nationwide when it reversed a finding of the United States District Court (USDC) in Philadelphia that held the Child Internet Protection Act (CIPA) was facially violative of the First Amendment rights of library patrons. Under CIPA, all libraries that accepted federal funding to cover the costs of providing Internet access to their patrons were required to install filtering software programs on their computers to prevent patrons from seeing any material that was obscene or “harmful to minors.” The law was not limited to computers used solely by children – computers used by adult patrons, and even staff, were affected. The American Library Association (ALA) had objected to CIPA on the grounds that the broad scope of such filtering programs prevented patrons from exercising their First Amendment right to see materials which were not unlawful, but which the filters prevented them from accessing.

The ALA challenged the constitutionality of CIPA in an action filed in the U.S. District Court for the Eastern District of Pennsylvania. The District Court, aided by extensive evidence developed by expert testimony, and applying a strict scrutiny standard, agreed with the ALA and found that CIPA was, on its face, violative of the First Amendment rights of library patrons. The government, utilizing the right, under the Act, to immediate appeal to the Supreme Court, sought a reversal of the District Court determination. On appeal, the Supreme Court reversed, finding that strict scrutiny was not mandated, and that CIPA, viewed under an intermediate scrutiny standard, was not unconstitutional on its face. The Court left open the possibility that CIPA might still be overly restrictive as applied, meaning that the door was still open for subsequent claims to be brought to modify the scope of the statute.

An analysis of this Supreme Court decision is the focal point of this article. In the first section, I look at the history of Congress’ deeply flawed effort to define and regulate obscenity in the pre-digital age, and the judicial response to those efforts. In Section Two, the migration of this effort into the digital age is examined, as I review Congress’ determined efforts to apply an already flawed standard to the complex universe of cyberspace. Those efforts, found in the Communications and Decency Act (CDA), and the Children’s Online Protection Act (COPA), also ran afoul of the Supreme Court and were limited or invalidated on overbreadth and First Amendment grounds. The lessons learned from these failures give birth to CIPA, and this section includes a summary of its relevant provisions.

The Third Section of this article focuses on judicial review of CIPA, beginning with the decision in the District Court for the Eastern District of Pennsylvania. The Fourth Section analyzes the Supreme Court’s plurality opinion reversing the District Court and upholding CIPA.

The fifth and final section of the article poses the perennial “what next” question. How will libraries respond to the challenge posed by the over- and under-inclusiveness of the software filters mandated by CIPA, and is it likely that an “as-applied” challenge to the law will modify or ultimately lead to a subsequent review of the validity of the Supreme Court decision?

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Posted with permission of the Syracuse Science & Technology Law Reporter. The SSTLR is available online at http://sstlr.syr.edu/.

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