Mary Minow is an attorney, a former librarian and library trustee, and a library law consultant with librarylaw.com. She has taught library law at the San Jose State School of Library Science. She received her B.A. from Brown University, her A.M.L.S. from the University of Michigan, Ann Arbor, and her J.D. from Stanford University. She is currently writing a book with Tomas Lipinski on legal issues for librarians for the American Library Association.
Thanks go to Henry Cohen, Newton Minow, and Robert Bickal for help and suggestions.
Table of Contents
This article is based on the United States District Court for the Eastern District of Pennsylvania decision in ALA v. United States No. 01-1303/Multnomah County Public Library v. United States No. 01-1322 decided May 31, 2002. Please note that page numbers referenced in this article refer to the decision as published in pdf format (not the html format) and may not correspond to the official citation. The author’s intent is to sift out and translate the most relevant parts of the decision into library-speak. Readers are strongly encouraged, however, to read the decision itself to answer any and all of the questions below. The decision is unusually well written and a delight to read.
Question 1: What is the gist of the Children’s Internet Protection Act (CIPA) decision?
Answer: The special three-judge federal district court decision held that the Children’s Internet Protection Act (CIPA) is unconstitutional with respect to libraries because filter programs “erroneously block a huge amount of speech that is protected by the First Amendment.” (93) The court found extensive evidence that the four leading filter programs over-block thousands of web pages. The decision goes into great detail on the inherent flaws in the technology for this task. Filtering companies are unable to accurately collect, review, categorize and regularly re-review pages. (9) This decision applies only to public libraries. The portion of the law that applied to schools was not challenged, and remains as law.
Question 2: What are some examples of erroneously blocked web sites?
Answer: The opinion devotes five pages to sites that have been erroneously blocked, giving specific URLs, the software and erroneous categories used. For example, church and religious sites have been blocked, including those of the Knights of Columbus Council 4828, the California Jewish Community Center, and Orphanage Emmanuel. Political sites such as a Libertarian candidate’s page, the Wisconsin Right to Life, and a site promoting federalism in Uganda have been blocked. Blocked health sites include a guide to allergies, a cancer treatment site, and a site on halitosis. Additionally, home schooling sites, career sites, travel sites, and sports sites have all been erroneously blocked. (88-92)
Question 3: Doesn’t the federal government have the right to decide what tax money is spent on?
Answer: Yes, it does. The Supreme Court has said, however, that strings on federal money may not be used to “induce the States to engage in activities that would themselves be unconstitutional.” South Dakota v. Dole, 483 U.S. 203, 210 (1987). (98) Also instructive is Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001)(declaring unconstitutional a federal law that restricted legal services providers who received federal funds from participating in litigation that challenged welfare laws). (102)
Question 4: What is the legal framework that the court used to analyze the Children’s Internet Protection Act?
Answer: As in virtually any First Amendment case, the standard of review that the court uses has an enormous impact on the outcome of the case. Here the court determined that the “strict scrutiny” standard must be used. For the government to win under a “strict scrutiny” standard, it must show that a law is narrowly tailored to promote a compelling government interest and that no less restrictive alternative would further that interest. (105) Note: As soon as a court decides to use the “strict scrutiny” standard, it’s almost a sure thing that a law will be found unconstitutional.
The government argued unsuccessfully that the court should apply a different, deferential standard, known as “rational review.” (105) “Rational review,” is often used when a law restricts speech on the government’s own property. When “rational review” is used, a law is usually upheld.
Question 5: The part of the law that was challenged required that filters be used in public libraries. Even then, it only required libraries that received certain federal funds to filter. Why did the Court determine that Strict Scrutiny was the proper standard of review?
Answer: Even restrictions on government property generally receive strict scrutiny if a public forum has been created and the restrictions are based on content (as opposed to time, place and manner restrictions, which get an intermediate level of scrutiny). The court found that Internet Access in a public library constitutes a designated public forum. (106-137) A designated public forum is a space that the government dedicates to the public for expressive purposes. The court explained its reasoning that the broader the range of speech that is facilitated in a public forum, the less likely it is that content-based restrictions will be upheld. (116)
Question 6: Is it illegal, then, for librarians to choose to buy books based on content?
Answer: No. The court said that collection development policies are generally subject to the rational review standard. (120) A public library’s decision to use the “last $100 of its budget” to purchase Shakespeare, even if more of its patrons would prefer John Grisham would be given great deference by the court. (p. 121) Library staff may exercise professional judgment using a variety of criteria, such as accuracy, the title’s niche in relation to the rest of the collection, the authority of the author, the publisher, the work’s presentation, and how it compares to other material in the same genre or on the same subject. (122-123).
Question 7: Why wouldn’t the same analysis be used when a library filters Internet sites?
Answer: Several of the governments’ witnesses testified that the same standards that govern the library’s print collection should be applied to the Internet. The court, however, said that when a library offers Internet access, it opens its doors to vast amounts of speech that lack sufficient quality to ever be considered for the print collection. (123, 124). Filters do not consider quality, but at best aim for content categories. It would be different if a library affirmatively selected websites (using criteria such as accuracy etc.) and only allowed access to those preselected sites. Preselected sites might not be a feasible method, however, as the Westerville Ohio library’s experience with The Library Channel showed. (44-45)
Question 8: Why should a library allow Internet sites that lack quality?
Answer: The Internet is fundamentally different from a library’s print collection. When a public library selects chemistry books, it has not created a public forum on chemistry. In contrast, when a library provides Internet access, even filtered Internet access, it has created a forum open to any member of the public. Any work on chemistry may be included, regardless of how unscientific the author’s methods, the author’s reputation, and reviews by the scientific community. (124-125) The unique speech-enhancing character of the Internet use in public libraries derives from the openness of the public library to any member of the public who wishes to either receive information or to speak. (135)
Question 9: Under strict scrutiny, the government can still limit speech if it can show a compelling interest. Isn’t there is a compelling interest in protecting children from pornography?
Answer: Yes, legal precedent says there is a compelling state interest in protecting children from materials that could be “harmful to minors” (roughly translated: soft porn). In fact, the court said that preventing dissemination of obscenity and child pornography to adults as well as material harmful to minors serves a compelling state interest (139-140). However, the strict scrutiny standard also requires that the law be narrowly tailored, and lacks less restrictive alternatives. (147)
Question 10: Is there a compelling interest in protecting a patron who is an unwilling viewer, is merely walking through the library and sees sexually explicit images?
Answer: In general, First Amendment case law shows a reluctance to protect the “unwilling viewer” who is expected to avert his or her own eyes. (141-142) The court said the state’s interest in protecting unwilling viewers from patently offensive material is served, to some degree, by obscenity doctrine. To the extent that the speech has serious literary, artistic, political or scientific value, the state’s interest in shielding unwilling viewers is tenuous. (143) Under limited circumstances, there may be a legitimate state interest, when the speaker intrudes upon the privacy of the home, or the degree of captivity makes it impractical for the viewer to avoid exposure. (144)
Question 11: Is there a state interest in preventing unlawful conduct such as sexual harassment of library staff or public masturbation?
Answer: The court said that the mere tendency of speech to encourage unlawful acts is insufficient reason for banning it. (146) The proper method to deter harassment etc. is to impose sanctions on the conduct, such as removing the patron from the library, revoking library privileges or calling the police. (147)
Question 12: Even if the filters aren’t as precise or narrowly tailored as we would like them to be, aren’t they better than nothing?
Answer: The court noted found that the commercially available filters as presented at trial blocked thousands of web pages that were clearly not harmful to minors. (149) Two of many examples include a website that promotes federalism in Uganda that N2H2 blocked under “Adults Only, Pornography” and a site for aspiring dentists that was blocked by Cyberpatrol as “Adult/Sexually Explicit.” (154) Further, there are inherent limitations in the technology and the Sisyphean task of using humans to review the 2 billion pages now in existence plus the 1.5 million new pages that are created daily. (149)
Question 13: If we have filters that are more precise in the future, might the law be saved?
Answer: The court said that even if only a small percentage of sites were erroneously blocked, the imprecision would be “fatal under the First Amendment” (154-155) Although perfection is not required, errors exact “an extraordinary cost.” Indeed, “precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” (155)
Question 14: What should libraries do?
Answer: The court discusses alternatives that are less restrictive than filters. The existence of these alternatives cause CIPA to fail the strict scrutiny test, in addition to its failure under the “narrow tailoring” requirement due to the imprecision of filters.
Many libraries adopt Internet use policies that make it clear to patrons that the library’s terminals may not be used to access illegal content. Many require patrons to sign use agreements and display screens requiring agreement conditions. Libraries can detect violations through direct observation or the review of Internet use logs. (158) If a violation is detected, the library may warn, revoke privileges or notify law enforcement (159)
Question 15: Must libraries monitor use?
Answer: No. Direct observation is not mandated. (161) The court mentions that a library may choose not to adopt monitoring policies out of respect for patrons’ privacy. (159) A tap on the shoulder policy (when patrons are displaying obscenity, child pornography or matter harmful to minors) may be uncomfortable for some library employees, but the court notes that such methods are less restrictive than a law that requires filters. (160) The court acknowledges that a tap on the shoulder policy delegates substantial discretion to librarians. Using filters also delegates unfettered discretion.
Question 16: What may a library do to protect children from material harmful to minors on library terminals?
Answer: The court does not evaluate the constitutionality of these alternatives, but notes the following options as less restrictive than using filters:
- Require minors to use specific terminals in a children’s room, in direct view of library staff;
- Require blocking software only if unaccompanied by a parent;
- Allow access only if a parent consents in advance to unfiltered access. The court noted that CIPA did not allow parental overrides. (162)
- Offer patrons a choice of filtered and unfiltered terminals;
- Provide patrons with guidance in finding material and avoiding unwanted material; (163)
- Place unfiltered terminals out of patrons’ sight-lines and heavy traffic; (164)
- Use privacy screens and recessed terminals.