The Supreme Court, after pummeling the Religious Right on a regular basis of late on erotic speech cases, has now approved one of their more benign Internet censorship measures, this one the Children's Internet Protection Act ("CIPA"). This, of course, is an impediment to an adult accessing what he or she wants, all in the name (as always) of innocent little children. But there is a point here, as well as a Supreme Court decision. United States v. American Library Ass'n., Inc. , ___ U.S. ___, 123 S.Ct. 2297, ___ L.Ed.2d ___ (June 23, 2003).
The Government enacted CIPA to control public-library Internet terminals in much the same way as it imposed a national 55-mile-per-hour speed limit. Under CIPA, no library can receive any federal funds - virtually all libraries do - unless it complies with CIPA's Internet-blocking requirements.
There is a limit, you see, to the extent to which the federal government can directly regulate local libraries. If it did so, any such regulation would be vulnerable to a claim that it was not an exercise of any enumerated power of Congress. The closest one would be interstate commerce, which is an extremely broad power; but the Supreme Court has been contracting it of late. Recall that the Court not that long ago struck down a federal criminal statute prohibiting possession of a firearm within 1,000 feet of any school; such a regulation exceeded the commerce power of Congress, the court held. United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). More recently, the Court for the same reason struck down the Violence Against Women Act of 1994, a federal law creating a civil remedy for any victim of a gender-motivated crime. United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).
Accordingly, Congress used the power of the purse, as it did when it threatened to cut off federal highway funds (which all states receive in large quantities) to any state that failed to enact the 55-mile-per-hour speed limit. The federal government does this kind of thing with great regularity.
By the year 2000, 95 percent of the nation's public libraries had Internet access. And Federal grants to libraries for electronic access is in the neighborhood of $150 million annually, so this was not an inconsequential regulation.
CIPA specifically requires libraries to install blocking software preventing access to "obscenity," "child pornography," and pictures that are "harmful to minors." Importantly, it allows disabling of the filter for an adult "to enable access for bona fide research or other lawful purposes," whatever that means.
As we all know, filtering software tends to over-filter, blocking access to much that is beyond the realm of what the filter is seeking to block. And it was that, and the ability to turn off the filter, that was key to this case. Chief Justice Rehnquist, writing for the majority, found that to the extent that "the tendency of filtering software to 'overblock' - that is, to erroneously block access to constitutionally protected speech that falls outside the categories that software users intend to block [ - ] ... 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."
Importantly, however, Chief Justice Rehnquist was able to muster a majority because of the concurring vote of Justice Kennedy, who once again set off a free speech alarm:
"If, on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay, there is little to this case. The Government represents this is indeed the fact [citing Solicitor General Olson's oral argument].... if 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."
Justices Stevens, Souter, and Ginsburg would have agreed with the lower court and found the statute facially unconstitutional. Overblocking, the three dissenters found, was fatal to the statute.
One notable point in this opinion is that nobody disputed the prevalence of pornography on the Internet. And everyone recognized that there was an important governmental interest involved, insulating children from inappropriate materials. This is an issue that will not die. Filtering library computers is obviously but a drop in the bucket.
Especially with the well-funded Ashcroft Justice Department, you can count on the fact that Ground Zero in the war against online adult content will be those sites allowing access to adult content without any credit card or password requirement. The ACLU has artfully managed to hold at bay COPA (the federal law requiring a credit card or password for access to materials harmful to minors), but that does not prevent obscenity prosecutions against sites violating it. This column has trumpeted that warning many times in the past.
Clyde DeWitt is a partner in the Los Angeles, CA-based, national law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online's offices, at his office at 12121 Wilshire Boulevard, Suite 900, Los Angeles, CA 90025, or at [email protected]. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
