Public libraries cannot be forced to use internet filters designed to block pornography, three federal judges ruled May 31 in overturning a new federal law. Although the ruling does not directly affect schools’ use of filtering software, some legal experts believe the court’s findings might encourage students to challenge the law as well.

In a 195-page decision, the judges said the Children’s Internet Protection Act (CIPA)—which mandates that both schools and public libraries receiving federal eRate funding must use internet filters on their computers—went too far because filters also can block access to sites that contain protected speech.

“Any public library that adheres to CIPA’s conditions will necessarily restrict patrons’ access to a substantial amount of protected speech in violation of the First Amendment,” the judges wrote. The law would have required public libraries to install the filters or risk losing federal funding starting July 1.

Since CIPA was first introduced by Sen. John McCain, R-Ariz., in 1999, many education, library, and free-speech groups have opposed the law, and the latter two groups actually challenged the portion affecting libraries before the courts.

The judges, who heard nearly two weeks of testimony in April, wrote that they were concerned that library patrons who wanted to view sites blocked by filtering software might be embarrassed or lose their right to remain anonymous because they would have to ask permission to have the sites unblocked.

Any appeal of the decision by 3rd U.S. Circuit Judge Edward R. Becker and U.S. District judges John P. Fullam and Harvey Bartle III would go directly to the Supreme Court.

Attorneys for the American Library Association and the American Civil Liberties Union contend the law is unenforceable, unconstitutional, vague, and overbroad. They say it denies poor people without home computers the same full access to information as their wealthier neighbors.

Critics of the law claim web sites on issues such as breast cancer and homosexuality can be mistakenly categorized as porn and blocked by the filtering programs.

Justice Department lawyers argue that internet smut is so pervasive that protections are necessary to keep it away from youngsters and that the law simply calls for libraries to use the same care in selecting online content that they use for books and magazines.

They also point out that libraries can turn down the federal funding if they want to provide unfiltered web access.

Because the judges ruled that CIPA violates patrons’ First Amendment rights, some legal experts believe their decision could open the door for a legal challenge of the law as it applies to schools.

“It’s possible that someone will come forward and challenge the law, especially once they’ve had a chance to study the arguments,” said Sara Fitzgerald, director of the Consortium for School Networking’s Safeguarding the Wired Schoolhouse project. “You could argue that students have some First Amendment rights as well. Whether courts are sympathetic to those arguments remains to be seen.”

A school’s responsibility for its students is different from a library’s responsibility to its patrons, Fitzgerald said. In this case, the judges considered internet access in libraries to be a public forum, but in schools the internet is generally considered a “limited public forum,” meaning the government can impose some restrictions—providing they aren’t discriminatory.

However, the ruling implies that internet filters cannot help but be discriminatory because of the way web sites are categorized by filtering companies. Companies tend to err on the side of caution when putting together their “block lists,” the judges said.

“Any software filter that is reasonably effective in blocking access to web pages that fall within its category definitions will necessarily erroneously block a substantial number of web pages that do not fall within its category descriptions,” the judges wrote in their decision.

Nancy Willard, director of the Responsible Netizen Project of the University of Oregon’s Center for Advanced Technology in Education, said she interprets this to mean filters can discriminate based on viewpoint, which would be grounds for a challenge of the law as it applies to a limited public forum as well.

“The findings of fact and conclusions of law presented in this case lead to one, and only one, conclusion: The use of commercially available filtering software in schools is unconstitutional,” said Willard, who is an outspoken critic of CIPA.

Fitzgerald doubts whether individual schools would challenge the law on their own. Schools are responsible for protecting their students, so they aren’t apt to single out and criticize a popular safety solution publicly, she said: “It’s a difficult public policy position to say this is not the best way to protect children.”

If the school portion of CIPA were to be challenged, Fitzgerald said, the challenge most likely would come from education groups or from the ACLU acting on behalf of students. But with the new education reforms required by the Bush administration already occupying their attention, it’s unlikely that education groups would have time to consider challenging the law, she added.

Neither the ACLU nor education groups contacted by eSchool News returned calls by press time.

The majority of schools already have bought and installed internet filters anyway. Three-fourths of schools use filters, according to a May 2001 report from the National Center for Education Statistics.

CIPA was the third anti-internet-porn law brought before federal judges for constitutional challenges.

The 1996 Communications Decency Act made it a crime to put adult-oriented material online where children can find it. It was declared unconstitutional by the Supreme Court.

The 1998 Child Online Protection Act (COPA) required web sites to collect a credit card number or other proof of age before allowing internet users to view material deemed “harmful to minors.” The 3rd U.S. Circuit Court of Appeals barred enforcement of that law, saying the standards were so broad and vague that the law was probably unconstitutional.

The Supreme Court partially upheld COPA in May but did not rule on its constitutionality as a whole. It remains on hold for further action in lower courts.


American Library Association’s CIPA page

American Civil Liberties Union

Justice Department

Safeguarding the Wired Schoolhouse

Responsible Netizen: Center for Advanced Technology in Education