Congress can make public libraries receiving federal funding install anti-porn filters even though they block non-porn Websites as often as not, the U.S. Supreme Court ruled June 23.
"Because public libraries' use of Internet filtering software does not violate their patrons' First Amendment rights," wrote Chief Justice William H. Rehnquist for the majority, "(the Children's Internet Protection Act) does not induce libraries to violate the Constitution, and is a valid exercise of Congress's spending power."
First Amendment attorney Lawrence G. Walters said he expected the high court to uphold the lower court in Philadelphia, which ruled earlier that forcing libraries to violate First Amendment rights by requiring "defective filters that block protected speech and don't filter all objectionable material." And he also said he hoped the high court ruling wouldn't be stretched beyond its actual facts to cover all online obscenity cases in the future.
The American Library Association denounced the 6-3 ruling almost at once as forcing public libraries to choose between federal funding and censorship. The ALA repeated an earlier call for filtering companies to make full disclosure of all the sites their products block, adult and non-adult alike.
"Findings of fact clearly show that filtering companies are not following legal definitions of 'harmful to minors' and 'obscenity'," the ALA said. "Their practices must change."
Walters also questioned whether the Supreme Court was knowledgeable enough to rule when the question was Internet filtering. "We haven't gotten to the point in technology where filters are accurate and we may never get there," he told AVN Online.com. "For the Supreme Court to require the use of these defective filters, which I doubt that any of them really understand, is putting a perceived Band Aid on a perceived problem that isn't going to fix anything.
"Kids will still be able to access material they shouldn't, just like they've always been able to get access to books in the library that are beyond their years," Walters continued. "But to deny all adults in the U.S. their right to view online erotica is going too far from a First Amendment standpoint."
A second adult industry attorney, J.D. Obenberger, said he hadn’t yet seen the entire Rehnquist opinion. But Obenberger did tell AVN Online.com the ruling's thrust meant his own law firm's Website could yet end up being filtered out despite its containing no porn or other such "objectionable" material on site.
"Internet terminals are not acquired by a library in order to create a public forum for Web publishers to express themselves," wrote Rehnquist. "Rather, a library provides such access for the same reasons it offers other library resources: to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality.
"The fact that a library reviews and affirmatively chooses to acquire every book in its collection, but does not review every Web site that it makes available, is not a constitutionally relevant distinction," Rehnquist continued. "The decisions by most libraries to exclude pornography from their print collections are not subject to heightened scrutiny; it would make little sense to treat libraries' judgments to block online pornography any differently."
Rehnquist was joined by Justices Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas. Justices Anthony Kennedy and Stephen Breyer, while voting with the majority, wrote a separate opinion arguing that government's "interest" in protecting youthful library patrons from "inappropriate" material overrode the burden on library patrons to ask for filter disconnecting.
The CIPA forced libraries receiving federal funds for computers and other technologies to use filtering to block porn and other "obscene" or "inappropriate" Internet sites. It was the third time the federal government tried forcefully blocking Internet porn. The Communications Decency Act of 1996 was struck down as unconstitutional by the high court, which later struck down part of the Child Online Protection Act of 1998 on free speech grounds.
Walters said another concern is the ruling's "precedental value," because other Internet porn cases may hit the Supreme Court in the near future. He also said it's one thing for Congress to make the rules when Congress is the one spending the money but something else again for Congress to make the rules without fullest possible knowledge of what it's making the rules for.
"Let's just hope this is a purse strings case," he said of the Supreme Court ruling, "and not an Internet porn case."
