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Potential legal challenges to the application of the Children’s Internet Protection Act (CIPA) in public libraries: Strategies and issues by Paul T. Jaeger and Charles R. McClureWhen the United States Supreme Court upheld the constitutionality of the Children’s Internet Protection Act (CIPA), the ruling was limited to issues of whether the statute, as written, was an unconstitutional limitation of freedom of speech. In holding that the wording of the law did not present an unconstitutional limitation on the exercise of free speech, the Supreme Court did not address the constitutionality of the application of the law. Two of the Justices who concurred that CIPA was legal on its face, in fact, suggested the possibility of future legal challenges to CIPA as it is applied in public libraries. This paper discusses potential problems related to the implementation of CIPA that could affect the exercise of free speech in public libraries. It also suggests possible legal challenges to the application of the law that could be made using established First Amendment jurisprudence. The legal issues that might be used to challenge the Court’s decision include least restrictive alternative, vagueness, overbreadth, request policies, prior restraints, public forum, and limitations on political speech. The discussion of each legal issue offers an approach that could be taken in formulating and raising a legal challenge to the application of CIPA.
Contents
Background
Potential future challenges to the application of CIPA in public libraries
The Viability of future legal challenges to CIPA
Background
When the United States Supreme Court upheld the constitutionality of the Children’s Internet Protection Act (P.L. 106-554), the legal challenge centered on the way the statute was written (United States v. American Library Association, 2003). The Supreme Court’s decision states that the wording of the law does not place unconstitutional limitations on free speech in libraries. But, the decision did not address the constitutionality of the application of the law in public libraries and school libraries. As such, the Supreme Court decision upholding CIPA does not foreclose future legal challenges to CIPA. In fact, some of the opinions in the case by Justices who upheld the law actually encourage future legal challenges if the application of the law creates limitations on free speech for adults.
Typically, when the Supreme Court decides an issue, their decision is the final word on a legal issue. However, the decision in this case is unusual in that the case only decided the text of the law did not include provisions that, based on the way in which they were written, would clearly infringe on the First Amendment right of freedom of speech. The decision did not address whether the application of the law would also avoid infringing on constitutionally protected rights of free speech. Future legal challenges to CIPA, if they occur, would be based on the application of the law in public libraries and could potentially be raised by library patrons or by professional library organizations.
The majority in the 6–3 decision comprised a plurality opinion that represented the views of four Justices and two separate concurrences that each represented the view of a single Justice. The two Justices who each wrote a separate concurrence (Kennedy and Breyer) both based their upholding of CIPA very specifically on the text of the law, not its application. These two concurrences openly acknowledge the assumption that CIPA will not place inappropriate burdens on patrons and will not prevent the exercise of protected free speech activities in public libraries by adults. Justice Kennedy wrote, however, that if some libraries cannot unblock Web sites or if "it is shown that an adult user’s election to view constitutionally protected Internet material is burdened in some other substantial way," then CIPA should be challenged in its application [1]. The application of CIPA in public libraries may persuade the two concurring Justices that the decision does significantly limit constitutionally protected free speech. In such a case, the balance of the Supreme Court on the issue could shift significantly. This situation opens the door for legal challenges to CIPA as it is applied in public libraries based on the burdens it places on adult patrons’ ability to access constitutionally–protected free speech using the Internet.
The implementation of CIPA in public libraries has the potential of raising a wide range of First Amendment issues. Depending on the circumstances in individual libraries, many potential grounds for legal challenges to the constitutionality of the application of CIPA could arise. These challenges all relate to the fact that CIPA could significantly reduce the amount of free speech that adult patrons could access through the Internet in public libraries.
This decision regarding the constitutionality of CIPA raises a number of legal concepts related to the First Amendment that may prove to be of considerable importance to public libraries in the United States in any future legal challenges to the application of CIPA. These challenges may be able to demonstrate that the effects of CIPA–mandated filtering and other applications of the law restrict the abilities of patrons, especially adults, to access constitutionally protected free speech.
A. When CIPA applies to public libraries
CIPA requires any public library receiving certain "universal service" (E–rate) discounts or Library Services and Technology Act (LSTA) grants from the Institute for Museum and Library Services to filter certain types of online content so that children cannot view the regulated content. The E–rate program was established by the Telecommunications Act of 1996 (P.L. 104–104) to provide discounts, ranging from 20 to 90 percent, to libraries and schools for telecommunications services, Internet services, internal systems and equipment. The program has been very successful, providing more than US$250,000,000 in discounts to public libraries from 1999 through 2003 (Bertot et al., 2003). The LSTA program, administered by the U.S. Institute for Museum and Library Services, provides money to each state library agency to use on library programs and services in that state. LSTA funds account for about one percent of all public library funding and are often used for innovative, experimental projects, such as bringing Internet services to libraries (Berot et al., 2002). These programs have contributed significantly to the rise in the availability of free public Internet access in libraries. By 2002, 98.7 percent of public library outlets in the United States had at least one Internet connection, and 95.3 percent of public library outlets in the United States provide public access to the Internet (Bertot and McClure, 2002).
As a result of CIPA, a public library must install technology protection measures, better known as filters, on all of its computers if it receives:
- E-rate discounts for Internet access costs,
- E–rate discounts for internal connections costs,
- LSTA funding for direct Internet costs, or
- LSTA funding for purchasing technology to access the Internet.
The requirements of CIPA extend to public libraries, to public school libraries, and to any library institution that receives LSTA and E–rate funds as part of a system, including state library agencies and library consortia.
Using congressional authority under the spending clause of Article 1, section 8 of the U.S. Constitution, CIPA ties the receipt of the above types of federal funds to the installation of filters on library computers. As a result, each public library that receives the applicable types of E–rate and LSTA funding now must implement filtering on all computers in the library buildings, including computers that are exclusively for staff use. Public libraries must address these issues very quickly, as the Federal Communications Commission mandated that libraries be certified as complying with CIPA by Funding Year 2004, which begins in Summer 2004 (Federal Communications Commission, 2003).
B. What content must be filtered
CIPA requires that filters on library computers block three specific types of content and each of the three categories of materials to be blocked has a specific legal meaning. "Obscene" materials are statutorily defined as depicting sexual conduct that appeals only to prurient interests, is offensive to community standards, and lacks serious literary, artistic, political, or scientific value (18 U.S.C. § 1460). Historically, obscene speech is viewed as being bereft of any meaningful ideas or social value to society (Roth v. United States, 1957). Statutes regulating speech as obscene have to do so very carefully and specifically, and speech can only be labeled obscene if the entire work is without merit (Miller v. California, 1973). If speech has any social importance, even for embodying controversial or unorthodox ideas, it is to receive First Amendment protection (Roth v. United States, 1957). "Child pornography" is statutorily defined as depicting any form of sexual conduct or lewd exhibitionism involving minors (18 U.S.C. § 2256). Both of these types of speech have a long history of regulation and being considered illegal in the United States.
The third category that must be filtered, "harmful to minors," encompasses a range of otherwise protected forms of speech. CIPA defines "harmful to minors" as including any depiction of nudity, sexual activity, or simulated sexual activity that has no serious literary, artistic, political, or scientific value to minors (20 U.S.C. § 9134(7)(B)). The material that falls into this third category is constitutionally protected speech that could potentially have much value to adults. The materials included in harmful to minors encompasses any depiction of nudity, sexual activity, or simulated sexual activity that has serious literary, artistic, political, or scientific value to adults. Along with possibly including a range of materials related to literature, art, science, and policy, this third category may involve materials on issues vital to personal wellbeing, such as safe sexual practices, sexual identity issues, and even general health care. "While obscenity and child pornography are not protected speech, the harmful to minors definition [will] include areas of heretofore protected speech" [2].
Under CIPA, images are the only format of content that must be blocked in each of these categories. However, as will be discussed in detail later in this paper, the abundant limitations and, in some cases, intentional designs of filtering products usually make them block considerably more content than is intended. First, filters have significant rates of inappropriately blocking materials, meaning that filters misidentify harmless materials as suspect and prevent access to harmless items, such as the Declaration of Independence and the Constitution (Horowitz, 2000). Further, when libraries install filters to comply with CIPA, in many instances, the filters will frequently be blocking items other than images (i.e. text) and, depending on the type of filtering product employed, may be blocking access to entire Web sites or even all the sites on certain ISPs. As such, the current state of filtering technology will create the practical effect of CIPA restricting access to far more than just certain types of images in many libraries (Cabe, 2002; Goldstein, 2002; Horowitz, 2002; Maloney and Morgan, 2001; Minow, 1997; Peltz, 2002).
For adult patrons who wish to access material on computers with filters, the library has the option of disabling the filters for "bona fide research or other lawful purposes" when adult patrons request such disabling. The law does not require libraries to disable the filters for adult patrons and the criteria for disabling filters do not have a set definition in the law. The potential problems in the process of having the filters disabled are many and significant, including librarians not allowing the filters to be turned off, librarians not knowing how to turn the filters off, the filtering software being too complicated to turn off without injuring the performance of the workstation in other applications, or the filtering software being unable to be turned off in a reasonable amount of time. The actual request process of how this could be done also raises serious concerns. First, this component of the law assumes that adult patrons will know that the computers they are using are being filtered. Second, it assumes that they will be aware of the fact that they have the legal right to request that the filters be disabled. Third, it assumes someone will be available on staff who knows how to disable the filters. Even if all of those issues do not prevent use of an unfiltered Internet, the law still does not require that libraries disable the filters. Patrons may have to explain in detail to the librarian why they want the filters turned off so that the librarian can assess whether the patron is, in fact, conducting "bona fide research or other lawful purposes." Not surprisingly, the end result of many of these problems could be the restriction of an adult’s access to constitutionally protected free speech. As such, these problems could serve as legal challenges of future appeals regarding the implementation of CIPA’s requirements in public libraries.
C. Free speech and CIPA in public libraries
CIPA was not the first attempt by Congress to regulate speech on the Internet. In Reno v. ACLU (1997), the Supreme Court held that the Communications Decency Act (CDA) was an unconstitutionally overly broad regulation of speech on the Internet that had the potential to drastically limit free speech. In Ashcroft v. Free Speech Coalition (2000), the Supreme Court held the Child Pornography Protection Act (CPPA) was also unconstitutionally overbroad in the definitions of the law. Congress then passed the Child Online Protection Act (COPA) in an attempt to address the Supreme Court’s reasons for striking down previous Internet regulations. Since its passage, COPA has been mired in legal controversy and the government has been enjoined from enforcing the law by federal courts (American Civil Liberties Union v. Reno, 2000; Ashcroft v. American Civil Liberties Union, 2002), though the Supreme Court recently accepted an appeal by the Bush Administration to rule on the constitutionality of COPA (CNN, 2003). Given the difficulties the CDA, CPPA, and COPA have faced in the courts, the upholding of CIPA by the Supreme Court was the first legal success for federal legislation to regulate who can view certain types of Internet content.
Prior to the Supreme Court’s decision, CIPA had been held unconstitutional by a three–judge panel of a U.S. District Court (American Library Association v. United States, 2002). That District Court decided that CIPA infringed on First Amendment rights by focusing on the impact of filters on patrons. For multiple reasons, the Court held that CIPA would too greatly inhibit free speech to be constitutional. The District Court felt that filter products were not an acceptable method due to their tendencies to block much constitutionally protected speech along with what they are supposed to block. Further, the District Court reasoned that mandatory filtering was hardly the least intrusive way to achieve the goals of the law. Libraries could, and already often do, take many other steps to keep children from reaching objectionable materials. Ultimately, the District Court believed that CIPA coerces recipients of E–rate and LSTA funds to limit First Amendment rights of patrons. Though the majority of the Supreme Court did not agree with the District Court’s assessment of the law, the reasoning of the District Court does provide helpful guideposts for any future legal challenges to the application of CIPA in public libraries.
D. The Importance of analyzing potential challenges to CIPA
CIPA represents the intersection of the constitutional right to freedom of speech and the desire of the government to protect children from harm. The potential legal challenges created by the application of CIPA result from the fact that these two abstract notions, when combined in a community space, are not always mutually compatible or feasible. These issues are relevant to all of the groups of people who will be affected by CIPA, including library patrons who are adults, library patrons who are children, and library employees. It is important to examine these potential First Amendment claims as CIPA is being implemented for several reasons. Librarians need to be aware of the true nature of the dilemmas that CIPA creates in libraries and the potential difficulties that may occur when the law is enforced. Patrons, children and adults, need to be aware of how the law affects their information seeking behaviors in libraries. Perhaps most importantly, everyone who feels the impact of the law needs to understand that the access problems that result from CIPA are not necessarily permanent, as the Supreme Court has not foreclosed future challenges to the law when it is applied in libraries.
The combination of legal analysis of the text of the CIPA and the Supreme Court decision with research into the potential problems public libraries and library patrons may encounter under the law suggests that there may be a number of avenues by which to challenge the application of CIPA. Most of these challenges involve concepts that have evolved in First Amendment jurisprudence and are intended to ensure the broadest protection possible of the right of freedom of expression. The application of CIPA’s requirements has the potential to create many different circumstances that encumber the freedom of expression of library patrons. Each of these different circumstances could provide the basis of challenge to the application of CIPA as infringing on the rights of free speech of library patrons.
Potential future challenges to the application of CIPA in public libraries
The text of CIPA and the decision by the Supreme Court leave a wide array of very significant First Amendment issues unaddressed. Future challenges to CIPA could be based on a range of First Amendment issues, including public forum, the right to receive information, least restrictive alternative, vagueness, overbreadth, request policies, prior restraints, and limitations on political speech. Table 1 summarizes these potential challenges to the law.
Though CIPA will affect both public libraries and public school libraries, the discussion of these challenges in this article will focus specifically on the free speech issues that CIPA raises in public libraries for adult patrons. The primary reason for this focus is that many of the potential First Amendment claims will likely be much stronger in public libraries than public school libraries. In public libraries, the law will have an impact on information access for children and adults, whereas in public school libraries, children will primarily feel the impact of the law. In public libraries, CIPA forces limitations on the free speech of children onto adult patrons and staff by mandating that all computer stations in a library be filtered. Though the information needs of children are a significant concern, the effects of CIPA on information access for adults raise substantially more possible First Amendment claims, specifically because adults in our society are supposed to receive the full benefits of the protections of freedom of expression that are granted by the First Amendment.
Table 1: Potential challenges to the application of CIPA in public libraries.
Legal Challenge to CIPA Legal Basis of Challenge Approach to Challenge CIPA creates more restrictions on free speech than are necessary Least Restrictive Alternative Research regarding what filters are actually blocking The requirements of CIPA limit access to too much speech Overbreadth Research regarding what filters are actually blocking The requirements of CIPA are too vague as a regulation of free speech Vagueness Research into how terms are generally being defined and applied CIPA inappropriately infringes on political speech Political Speech Research about the types of information patrons are not reaching due to filters CIPA forces adult patrons to request access to information that they would otherwise be able to receive unimpeded Information Request Policies Research that examines the process of requesting access to unfiltered Internet access CIPA places inappropriate constraints on a public benefit — free Internet access in public libraries Public Benefits Research into the amount the Internet is used in public libraries and the reasons that it is used CIPA prevents adult patrons from reaching information before the constitutionality of that information has been evaluated Prior Restraints Research about the decision–making process of librarians of whether to disable filters The public library could be considered a public forum where information is intended to be freely available Public Forum Legal analysis of precedents regarding public forum CIPA curtails the public’s right to freely receive information Right to Receive Information Legal analysis of precedents regarding the right to receive information
In this section, we discuss each potential legal challenge to the application of CIPA in terms of legal precedents in First Amendment jurisprudence, and facts and issues related to the application CIPA. Each section offers suggestions on ways in which the viability of the particular approach to challenging CIPA might be investigated, including legal analysis and research. While each claim would require additional detailed legal analysis, research into the general impact of CIPA in public libraries across the nation could prove very persuasive in establishing the basis of a number of these claims. These suggested approaches offer basic ideas for each potential challenge; in many of the cases, other approaches would be similarly useful. The ones offered here appear to have potential as challenges to the Supreme Court’s decision on the constitutionality of CIPA.
A. CIPA creates more restrictions on free speech than are necessary
When the government adopts a method of curtailing speech, the method should only restrict the speech it is intended to limit. If the government is successful, the method is called a least restrictive alternative. A least restrictive alternative means that the method used to achieve a government goal should create the fewest restrictions to free speech, unless the government can prove that any other alternatives would be ineffective (United States. v. Playboy Entertainment Group, 2000). The government can "regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive alternative" [3].
A case can be made that the filters, as they have a propensity to block much more material than intended, are far from the least restrictive alternative that could be used to accomplish the goal of blocking certain content (Skaggs, 2003). The various filtering programs use a wide range of techniques to block online content (Ayre, 2001; Schneider, 1997). Most of the available filtering options are systems that either limit online access to a relatively small number of company–approved sites or allow the user to surf the entire Internet, blocking content that is deemed inappropriate only if it arrives at a suspect site. Of the former types of filters, most of these systems have access to only 100,000 or so Web sites out of the tens of millions available, so any library that adopts a database system "will experience a massive loss in Internet materials," including many materials that they didn’t necessarily intend to block [4]. Some commercial vendors supply these types of database systems where each page that is available has been assessed by a reviewer to ensure that it does not contain objectionable material. However, these reviewers likely do not have the expertise to understand and apply the legal definitions to the content of a Web site (Horowitz, 2000). Of the later types of filters, the filtering can be based on keywords, images, text captions, site descriptors, site addresses, or Internet hosts, with each method of filtering being subject to a great deal of inaccuracy (Mani, 2003; Peltz, 2002). Regardless of the kind of filter employed in a library, filters do not give the library the ability to evaluate and provide Internet resources in the same way that they can collect physical resources (Maloney and Morgan, 2001).
The ways in which many of the commercial filtering systems work remains puzzling, as the companies treat the programs as trade secrets and do not allow users to know what is being filtered or how the software makes decisions regarding what is filtered (Goldstein, 2002). The fact that many studies have demonstrated inadequacies of filters, however, is not in doubt. The major concern regarding all filtering systems is the fact that the technology is simply not adequate to achieve simultaneously the goals of filtering particular types of content while generally preserving free accesses to information (Mani, 2003). A technology that could achieve these goals "would warrant a hypothetical Nobel Prize for artificial intelligence for its ability to make closely reasoned and complex legal judgments" [5].
In the United States District Court hearing regarding CIPA, even government witnesses agreed that every filtering product blocks at least six to fifteen percent of protected speech (American Library Association v. United States, 2002). One study has found that filters blocked the answers librarians were seeking 35 percent of the time (Minow, 1997), and another study found that filters erroneously block as many as 80 percent of Web sites with a dot–com domain (Peltz, 2002). Studies on the effect of filters have demonstrated that they can block a considerable amount of general health information (up to 63 percent of general health sites and up to 91 percent of sites related to sexual health) when they are set to block sexually related materials (Kaiser Family Foundation, 2002). A study of the filters being used in Utah public schools discovered that the filters were blocking access to "the Declaration of Independence, the United States Constitution, the Bible, the Book of Mormon, the Koran, and a wide variety of literature taught in most public schools" [6]. Most filters would also block a more recent significant document from U.S. history — the Ken Starr report on President Clinton.
In the United States District Court decision about CIPA, the court noted evidence of a wide range of inappropriate sites being blocked by filters, including sites devoted to religion, politics, government, health, careers, education, travel, and sports (American Library Association v. United States, 2002). For example, one filtering program labels the Web site of the Army Corps of Engineers Construction Engineering Research Laboratories as containing "Full Nude Sex Acts" (Meehan, 2003). In total, all of these facts indicate very persuasively that filters are not the least restrictive alternative for the goals of CIPA.
The filtering required by CIPA may not be considered the least restrictive alternative for other reasons. CIPA orders all computers with Internet access in a library to be filtered, including staff computers and computers that were purchased without any benefit of government funds. As such, computers used only by the staff (typically adults) or only by adult patrons still must have filters, which is much more restrictive than only filtering the computers that children use. Another less restrictive alternative to this problem would be self–regulation of Internet content providers in which Web sites carried a rating, like movies or television programs. Since there are many alternative approaches to this absolutist stance, the CIPA decision may not be viewed as the least restrictive alternative.
There appear to be at least four potential arguments that CIPA does not represent a least restrictive alternative:
- First, the serious problems with the technology that result in limited access to many forms of protected speech make it very difficult to argue that filters truly are a least restrictive alternative.
- Second, the filtering programs that exist have not been designed to comply with the requirements of CIPA (Brown, 2003).
- Third, CIPA requires the filtering of all computers in a library, not just ones that are designated for the use of children.
- Fourth, there are other methods to regulate access to content, such as industry regulation of Internet content providers through a rating system (Cabe, 2002).
Based on this range of reasons, the least restrictive alternative arguments may be a viable means for appealing the application of CIPA in public libraries.
B. The Requirements of CIPA limit access to too much speech
If restrictions on free speech are so broad that the law creates restrictions both on the speech it is intended to regulate and on other forms of speech, then courts will consider altering the law on the grounds of overbreadth. The language of CIPA might be considered overly broad under this doctrine. The overbreadth doctrine is based on the principle that government control of an activity that is subject to regulation may not be allowed to limit protected forms of speech. However, the Supreme Court is only willing to use overbreadth sparingly (Broadrick v. Oklahoma, 1973).
The problems with the imprecision of filters discussed above could also be raised in terms of the overbreadth principle. "The inability of the technology to perform as required — filtering a very narrow class of ‘speech’ — subjects the legislation to challenge" [7]. All of the potential problems with the precision of filters that raise concerns that filters are not the least restrictive alternative also raise concerns that the filters, in application, limit speech in an overly broad manner.
A further technological issue can be noted in terms of overbreadth — the difficulty of correctly setting filters. A University of Michigan study of 20 libraries with filters, serving a total 2.5 million patrons, found that only one library had the filters set correctly to block pornography exclusively (Rideout, 2003). In many of these cases, the librarians did not know they could tailor the settings of the filters. However, even for librarians that know filter settings can be modified, the imprecise names of the settings can be obstacles. For example, the categories that different filters block can include such a wide range of topics as chat, entertainment, pornography, sex acts, drugs, nudity, weapons, profanity, tobacco, arts, education, business, news, health, swimsuits, jokes, auctions, games, religion, and dating (National Telecommunications and Information Administration, 2003; Kaiser Family Foundation, 2002). With such imprecise terminology and other potential technological difficulties, the courts may find that the use of filters under CIPA results in overly broad limitations of free speech.
Research regarding what filters are actually blocking would be beneficial as the basis of an overbreadth claim. If filters, due to the imprecision of their functions or of improperly setting them, result in much more speech being blocked than is intended by the law, a claim of overbreadth could be made as the government control of the activity would be resulting in limitations on speech that the law was not meant to affect.
C. The Requirements of CIPA are too vague as a regulation of free speech
The language in CIPA enumerates and defines what should be blocked (obscene images, child pornography, and images harmful to minors), but there is still a possibility that the language might be considered too vague in terms of free speech based on two terms in the law.
i. "bona fide research or other lawful purposes"
This clause in CIPA states that the law does not mandate the filters be disabled when an adult patron requests such, only that "an administrator, supervisor, or other authority may disable a technology protection measure ... to enable access for bona fide research or other lawful purposes" [8]. The wording of this clause raises many practical questions about how often the filtering would, in fact, be disabled in libraries. CIPA specifies that librarians have the option of unblocking Web sites for "bona fide research or other lawful purposes" yet fails to define these terms or provide guidelines regarding the unblocking.
Under CIPA, the library "may" disable a filter, but it is under no obligation to do so. As a result, the library staff may decide, based on library policies (if any exist), under what circumstances to unblock a filtered Web site. This same clause places restrictions on when filters can be disabled and sites can be unblocked. The wording of the clause places librarians in a position of deciding whether a patron wishes to use the unfiltered Internet for "bona fide research or other lawful purposes." The method by which a librarian makes the determination whether to disable filters may actually prevent patrons from making requests. Librarians will have to ask patrons to identify, either verbally or in writing, why they want to use the unfiltered Internet in order to determine whether the usage will be for "bona fide research" or for "other lawful purposes." Many patrons may be hesitant to expose themselves to a grilling by the library staff about why they wish to use the unfiltered Internet, even if their information needs are genuine and they simply plan to conduct bona fide research into an important topic in their lives. For example, if a patron wishes to conduct research on a health issue, such as the use of contraception or the prevention of sexually transmitted diseases, the individual may opt not to do such research rather than explain the intended area of research to a librarian. The end result of this situation would be reduced public access to Internet information in many cases.
Members of the library staff, when they are making these determinations, are also left to grapple with the meaning of the term "bona fide research." Does one need to be a scholar or a writer making a professional or academic inquiry? Does one need to demonstrate to the library staff that the problem they wish to study has value as an avenue of scientific inquiry? Is the search for any personal information bona fide research? Public libraries serve the information needs of the general population, rather than for specific professional or academic populations, so it seems likely that most research will be for personal, rather than professional purposes. As a result, research for personal reasons, from gas mileage of cars to the family genealogy, could be considered bona fide research. This distinction, if it is accepted, creates serious definitional problems for librarians. What reasons for seeking information, though not bona fide research, are "other lawful purposes" that merit disabling filters? A library that opted to answer these questions by simply disabling the filters for any adult patron who asked would seem not to be complying with the law’s requirements to investigate whether a patron intends to engage in either "bona fide research" or "other lawful purposes."
In making these determinations, a librarian will be acting as "a speech gatekeeper," having to guess at the meaning of the terms of the request in a particular context [9]. Such a lack of standards also means that content may be unblocked by one librarian at one library but not at another. Further, patrons of different libraries, or branches of the same library, may receive differing levels of Internet access as a result of variations in librarian decisions of when to disable filters and when not to disable the filters. All of the issues raised by the vagueness of the terminology related to unblocking Web sites may create significant limitations on free speech by adults in libraries.
In his dissent to the CIPA decision, Justice Souter notes the lack of definitions for these terms is a significant problem. He concludes that the lack of specificity regarding these terms makes the restrictions of CIPA "more onerous by the uncertainty of its terms and the generosity of its discretion to library staffs in deciding who gets complete Internet access and who does not" [10]. The vagueness of these terms when they are applied in libraries indicates that this may be a particularly viable option for future legal challenges to CIPA.
In this case, research could determine how these terms are generally being defined or being ignored. The legal definitions of "bona fide research or other lawful purposes" have the potential to result in a wide disparity in the kinds of information to which adult patrons are allowed access, based entirely on who is applying a personal definition of the terms. If the vagueness of these terms results in wild inconsistencies in what information adults can access in different libraries, different branches of the same library, or even in the same library depending on who is applying an individual definition of these terms, then a claim of vagueness could likely be substantiated.
ii. "harmful to minors"
The second case of a vague definition is the phrase "harmful to minors." While "obscenity" and "child pornography" certainly are not traditionally protected forms of speech, "harmful to minors" restricts speech that has not previously been restricted (Latham, 2001). Given that CIPA expanded the range of restricted speech, the precision of this terminology must be exact. However, the law defines depiction of nudity, sexual activity, or simulated sexual activity that has no serious literary, artistic, political, or scientific value to minors. This definition suggests two potential challenges. First, how does one define what lacks serious literary, artistic, scientific, or political value to anyone? This question is rather abstract, but it serves to demonstrate how ill defined "harmful to minors" may be. To some librarians, Shakespeare’s Romeo and Juliet, which does include references to sexual activity, may lack artistic value. Even though most people would strongly disagree with such an assessment, the law does not preclude personal quirks of decision–makers from strongly, and possibly idiosyncratically, shaping what speech can be viewed via the Internet.
The other problem with the definition is the gray areas between the categories (literary, artistic, scientific, or political) that it does not address, leaving the terms open to interpretation by each library implementing the law. Take, for example, someone who is looking for information on sexually transmitted diseases with the purpose to avoid catching one. The search would not be political or artistic or literary. It might be scientific, but it depends on how one defines scientific, since the research would be for purely personal reasons. It is hard to imagine that personal health could be seen as not having serious value, but it could be seen as lacking serious literary, artistic, scientific, or political value. In such cases, the vagueness of "harmful to minors" may actually result in far more speech being blocked than the law intends.
As with "bona fide research or other lawful purposes," this term could lead to considerable inconsistencies in how the law is applied and who is allowed to access the information they seek. If the definition of the term "harmful to minors" is used so generally as to block materials beyond the scope of the law, or is used in a highly inconsistent manner, vagueness would appear to be an appropriate claim. Once again, research could be undertaken to determine how the term "harmful to minors" has been defined and implemented in a sample of public libraries and through interviews with public librarians.
D. CIPA inappropriately infringes on political speech
Regulations that affect the exercise of First Amendment freedoms are not supposed to limit the free discussion of political issues. The Supreme Court has noted that there is "practically universal agreement" that the primary intent of the First Amendment is "to protect the free discussion of governmental affairs" [11]. If the application of the filters in public libraries leads to the unintended blocking of political materials, then it is possible a claim could be made based on the limitation of political discourse. As explained above, filters have been demonstrated to have a tendency to block sites related to political issues that have nothing to do with the types of information that the authors of CIPA intended to filter.
The results of some studies, as well as much anecdotal evidence, indicate that filters have a tendency to limit some types of political speech. The types of sites blocked by filters have also raised concerns about the political agendas of some of the companies that produce filtering software. Based on the refusal of companies to reveal the methods for determining what sites they block and on evidence regarding what filters actually do block, questions have been raised about the "moral or political judgments" being made by filters [12]. Studies have shown that a number of the most popular filtering programs tend to block sites of certain political causes (Peltz, 2002; Horowitz, 2000), with feminist and environmentalist sites being especially prone to being blocked (Bastian, 1997). Some filtering programs have even been specifically designed with a political agenda, advertising the fact that they intentionally block content that espouses particular viewpoints that have nothing to do with pornography (Wallace, 1997). Given that much of the drive to filter Internet content has evidenced a certain level of "moral panic" [13], it certainly seems possible that filters, in some cases, may be working to limit the access to certain types of political speech of adults and children.
The approach for a political speech challenge might best begin with research into the types of information that patrons are trying to access but which filters block. For example, if research showed that the types of information being blocked espoused a particular political perspective then it would be very persuasive to say that political speech was being restricted. Such research could be accomplished by analyzing the specific types of information that was being blocked by the various filtering software and using content analysis to determine the degree to which such information was of a particular political persuasion.
E. CIPA forces adult patrons to request access to information that they would otherwise be able to receive unimpeded
When a statute creates the requirement that a person needs to request the right to receive information to which they would otherwise have free access, courts may be inclined to overturn the statute. In Lamont v. Postmaster General (1965), the Supreme Court held unconstitutional a statute that required the United States Postal Service to prevent delivery of any communist materials unless the recipient of the materials had affirmatively requested that such information be delivered. In that case, the Court decided that having to actively request the materials, which would otherwise have been freely available except for the statute, was an unconstitutional burden on free speech. Requiring such requests could reasonably be seen as likely to limit freedom of expression related to the materials. The parallels to CIPA may be important if it is demonstrated that embarrassment, undue delay, or other impediments were restricting requests for access or preventing patrons from requesting unfiltered Internet access. Even if no detailed explanation is required, patrons still must request access to the filtered content, which is contrary to the principle underlying Lamont v. Postmaster General. A related problem is that, under CIPA, patrons may have no idea that the library has filtered the computers they use, meaning that patrons may not know to ask to receive the information to which they would otherwise have had free access.
Request policies may raise a second issue, as well. The differences between filtering systems are so great that a request to disable the filtering on a computer can range from less than five minutes to up to a week (National Telecommunications and Information Administration, 2003). If a patron has to wait five minutes for a filter to be disabled, it is unlikely that would be considered a burden on accessing free speech. Asking a patron to wait for a week to access the information they need, however, would seem to be a significant burden. The District Court in this case also raised the possibility of problems in small libraries that lack staff to disable the filters at all (American Library Association v. United States, 2002). The District Court concluded that a major problem with the statute was the fact that "unblocking may take days, and may be unavailable, especially in branch libraries, which are often less well staffed than main libraries" [14]. In the case of filters, the request policies, by requiring a patron to find a person who can disable the filter and to wait until the filters are inactive, might impair free speech by placing significant barriers to information that, except for the law, would be freely available.
Research that examined the process of requesting access to unfiltered Internet access in public libraries could serve as the starting point for a challenge to this application of CIPA. Research could identify the procedures by which patrons must request unfiltered access to the entire Internet. If the process is very quick and requires little of the patron, then a request policy claim would not likely succeed. However, if it generally takes a long time to request the disabling of filters or if the process is so complicated that patrons often choose not to even request disabling, a challenge on the basis of request policies claim would seem appropriate.
F. CIPA places inappropriate constraints on a public benefit — free Internet access in public libraries
The Supreme Court has previously held that "conditions upon public benefits cannot be sustained if they so operate, whatever their purpose, as to inhibit or deter the exercise of First Amendment freedoms" [15]. Under CIPA, the requirement of filtering could be considered a condition on the public benefit of free Internet access. The provision of E–rate and LSTA funds to public libraries in order to provide Internet access would seem to constitute a public benefit. As noted above, from 1999 through 2003, more than US$250,000,000 in E–rate funding was committed to public libraries (Bertot et al., 2003). These federal grants have brought computers and Internet access to a large number of public libraries, including some libraries in communities where many residents would have no other means to access the Internet. A primary reason that public libraries provide Internet access is to provide access to people who otherwise have no ability to reach the Internet (Laughlin, 2003). Approximately 11 million low–income individuals, who do not have access to the Internet at home or at work, use public libraries as a method to access online information and services (Goldstein, 2002). One hundred percent of public library outlets that serve populations with a poverty rate of 40 percent or above offer public Internet access, and 100 percent of urban public library outlets offer public Internet access (Bertot and McClure, 2002).
Providing free public access to the information and services available on the Internet, especially to those individuals who would otherwise have no Internet access, certainly seems to qualify as a public benefit. CIPA places conditions on that public benefit — the requirement of the installation of filters — that has the potential to limit free speech activities. However, the Supreme Court’s decision appears to bypass such considerations, accepting the manner by which Congress chose to regulate speech on the Internet through monetary persuasion.
Research that determined the full extent of the public benefit provided by free Internet access in public libraries could be conducted to support this challenge. This research could discern the amount the Internet is used in public libraries and the reasons that it is used, especially by those patrons who have no other means or only limited means to access the Internet. If research shows that CIPA is limiting the amount the Internet is used or is constricting the reasons for which it is used, then such findings would indicate that the condition of filtering under CIPA is inhibiting free speech activities.
G. CIPA prevents adult patrons from reaching information before the constitutionality of that information has been evaluated
The doctrine prohibiting prior restraints on speech is based on the principle that speech should not be suppressed until an adequate determination has been made as to whether the speech truly is unprotected or illegal speech. This doctrine presumes it is preferable to address the consequences of speech being heard rather than to prevent the speech from being heard at all (Smolla, 1992). In 1938, the Supreme Court invalidated a statute that prohibited the distribution of printed literature without permission of the city because it was a prior restraint on free speech (Lovell v. Griffin). In Hynes v. Mayor of Borough of Oradell (1976), the Court further refined the prohibition on prior restraints, stating that a "narrowly drawn ordinance, that does not vest in municipal officials the undefined power to determine what messages residents may hear" will not be considered a prior restraint [16].
Though the material in question with CIPA is electronic rather than printed, the principle still seems to have direct applications. CIPA places librarians, who are public employees, in the position of making determinations of what speech patrons may access using very poorly defined terms, such as "bona fide research or other lawful purposes." Librarians cannot rely on the filtering programs to properly sort online content (Brown, 2003), leaving the librarians in their roles as public employees with an undefined power to determine what speech patrons may view online. The parallels between CIPA and the law at issue in the Hynes case are significant.
The position of public librarians as a result of CIPA may also have consequences for the librarians making the determinations about merits of requests to use an unfiltered Internet. CIPA forces librarians, when determining whether to disable the filtering mechanism, to question patrons and make judgements about their information seeking activities. This mandatory judging of patrons, combined with the vagueness of the standards that they must use to assess patron behaviors discussed above, removes librarians from the familiar position of helping patrons find information and places them in the position of estimating the value of the information needs of patrons and judging the degree to which such information does or does not fall under CIPA restrictions. In a fashion, CIPA makes librarians official government censors. These new burdens CIPA places on librarians are added to the consideration that the USA PATRIOT Act of 2001 (P.L. 107-56) places members of the library profession in a very serious and very stressful position regarding patron activities and patron information (Jaeger et al., in press–b). The new role of librarians as "enforcer" of these various laws alters the responsibilities and social roles of librarians into activities for which most have had no training, requiring them to perform as surrogates of the law enforcement establishment.
The approach to a prior restraint claim would benefit from research about the decision–making process used by librarians as to whether to disable filters, including an analysis of what types of requests are accepted and what types are denied. If individual librarians, in their role as a public official determining what speech a person may access, were found to be making such decisions inconsistently, incorrectly, or capriciously, then a challenge based on prior restraints claim would seem appropriate.
H. The Public library could be considered a public forum where information is intended to be freely available
The type of public forum that a place is considered to be strongly influences the level of constitutional protection for speech in that location. In First Amendment jurisprudence, a particular location can be one of a number of levels of public forum, or not a public forum at all, with each level requiring its own protections of free speech. For example, a location that is considered a traditional public forum, such as a town square or a public sidewalk, receives the highest level of protection of free speech in that location, limiting the ability of the government to curtail speech in those locations. The Supreme Court has never definitively settled the issue as to which type of public forum a public library is (Mart, 2003; Maloney and Morgan, 2001; Bastian, 1997). The library, however, is definitely a public forum (Latham, 2001; Goldstone, 1995); the question is what kind of public forum it is. Board of Education v. Pico (1982) held that a public school library was not a traditional public forum and therefore did not receive the highest level of protection of speech. In its opinion in Pico, the Court did make a distinction between the public school library and the public library, implying that speech would receive a higher level of protection in public libraries.
In its opinion on CIPA, the plurality of the Supreme Court asserted that Internet access in a public library was neither a traditional nor a designated public forum, the two types of public forums that provide the most protection for free speech. However, various legal arguments have been made that public libraries and the Internet access they provide can be designated public forums, and some lower courts have held as such (Brown, 2003; Skaggs, 2003; Hinckley, 2002; Peltz, 2002; Maloney and Morgan, 2001). It is assumed that when a community opens a property for use by the public, such as a library, it is "for use by the public as a place for expressive activity" [17]. Based on this assumption, it seems logical to claim that Internet access in a public library could be considered a public place for expressive activity. If the courts considered Internet access in the public library a public forum, then the issue of filters blocking material that was not covered by the law would be much more important in determining how courts assess the law. The application of libraries serving as a public forum may lead to a possible challenge to the existing CIPA decision.
The approach to this challenge would likely be a legal analysis of the public forum doctrine, which is far from clear in relation to public libraries. A well–reasoned and carefully researched argument, however, may cause the courts to reconsider the status granted to public libraries under the public forum doctrine. Such an argument would have to develop a logic for defining the doctrine of public forum in terms of public libraries.
I. CIPA curtails the public’s right to receive information
The Supreme Court explicitly stated, "The Constitution protects the right to receive information and ideas" [18]. Without this protected right to access and receive free speech, the overall right to free speech could be significantly diminished (Mart, 2003). CIPA places libraries in a position of limiting access to some forms of free speech for children and also limiting access to some forms of free speech for adults. This argument becomes even more salient if one agrees with the assertion that the right to communicate on the Internet is a human rights issue (McIver et al., 2003).
Another manifestation of limitations on the right to receive information results from the fact that patrons with legitimate research interests may be unable to receive information as a result of CIPA. The Consortium for School Networking found that filters frequently block sites that teachers had selected for use in lessons, including many educational Web sites (National Telecommunications and Information Administration, 2003). The great imprecision of filters may also disenfranchise many students from the Internet, as they might perceive that the filters have removed much of the research value of the Internet. One study found that most students surveyed believe "filtering software blocks important information" and "many feel discouraged from using the Internet by the difficulties they face in accessing educational material" [19].
This challenge would seem to be based primarily on legal analysis of case law involving the right to receive information. This type of claim would revolve around convincing the courts that the right to receive information, an abstract assertion of the Supreme Court, was a practical shield against legislation such as CIPA.
The Viability of future legal challenges to CIPA
Regardless of personal opinions about the wisdom or validity of filtering Internet content in libraries, the problems that may occur in the implementation of the requirements of CIPA in public libraries should be a concern for both those who support filtering in libraries and those who oppose it. The application of CIPA, as it is written, has significant potential to disrupt the flow of free expression of and access to constitutionally protected speech on the Internet in public libraries for both children and adults — but especially adults. The combination of the terminological insufficiencies of the law, the fallibility and inadequacy of existing filtering products for the purposes of the law, and the difficulties likely to be encountered by librarians in making decisions to disable filters will make the process of implementing CIPA difficult for public libraries and will likely impede the freedom of speech and the access to information for their adult patrons. These same problems with free expression may result in future legal challenges to the application of the law.
A number of research and legal questions must be answered before the impact of CIPA on public libraries can be adequately gauged (Jaeger et al., in press–a; Jaeger et al., under review). In addition, these research and legal questions — as discussed above — offer a number of potential bases by which the existing decision might be challenged. As public libraries engage in the implementation of CIPA’s requirements, however, there are many potential avenues for challenging the constitutionality of the law as it is applied. It is difficult to determine the viability of each of the various potential avenues of appeal, as the case law related to the First Amendment is extremely complex and courts can decide such cases on the smallest of factors or on expert legal argument. Supreme Court jurisprudence in this area often relies on very fine differences in terminology (Kramer, 2003). The viability of any future challenges to the application of CIPA will hinge on the specific factors of that particular case and the findings of research about the overall implementation of CIPA.
There are, nonetheless, a number of problems with the Court’s decision that may offer a basis for challenging the CIPA decision. Equally important is the need for the public library community and government officials to better understand the implications of the decision and how these will affect the application of the decision in local library situations. Yet to be determined is the interest and resolve of the public library community and public library patrons to continue to challenge the CIPA decision and insure that public library users — especially adults — have not had their First Amendment rights restricted in their access to Internet–based information.
About the Authors
Paul T. Jaeger is Senior Research Associate and EBSCO Fellow at the Information Use Management and Policy Institute of the School of Information Studies at Florida State University and is a doctoral student at Florida State University’s School of Information Studies. He has earned a Juris Doctor and master’s degrees in information studies and education. His publications have addressed issues of information access, electronic government, disability law and accessibility, privacy and security, education, and Constitutional law. He is the primary author of Disability Matters: Legal and Pedagogical Issues of Disability in Education (Bergin & Garvey/Praeger, 2002).
E-mail: jaeger@lis.fsu.edu.
Direct comments to: jaeger@lis.fsu.edu.Charles R. McClure is Francis Eppes Professor and Director of the Information Use Management and Policy Institute of the School of Information Studies at Florida State University. He earned his Ph.D. at Rutgers University. He serves as as Editor of the Journal of Government Information and Associate Editor of Government Information Quarterly. He has written widely on a range of topics related to federal information policies and library issues. His recent books (with others) include Evaluating Networked Information Services (Medford, N.J.: Information Today, 2002) and Implementing Digital Reference Services: Setting Standards and Making It Real (New York: Neal–Schuman, 2002). Additional information about McClure and his publications can be found at http://slis-two.lis.fsu.edu/~cmcclure/.
Acknowledgements
This article expands and extends one aspect of the research presented in "The Effects of the Children’s Internet Protection Act (CIPA) in Public Libraries and Its Implications for Research: A Statistical, Policy, and Legal Analysis" by Paul T. Jaeger, John Carlo Bertot, and Charles R. McClure, which is forthcoming in the Journal of the American Society for Information Science and Technology. That article provides an analysis of data regarding the range of impacts of CIPA on public libraries and discusses the array of issues (policy, research, statistical, economic, and legal) related to the implementation of CIPA.
The authors of this article would like to thank Professor John Gathegi of the School of Information Studies at Florida State University for his comments on this article. The authors would also like to thank their colleagues at the Information Use Management and Policy Institute, particularly John Carlo Bertot and Lesley A. Langa, who have helped shape the authors’ thinking about the article through the course of many conversations about CIPA. Further, the authors would like to acknowledge the Office for Information Technology Policy of the American Library Association Washington Office, which has supported the CIPA research initiative of the Information Use Management and Policy Institute at Florida State University.
Notes
1. United States v. American Library Association, 2003, p. 37.
3. Sable Communications of California, Inc. v. FCC, 1989, p. 126.
6. Horowitz, 2000, pp. 433–434.
8. 20 U.S.C. § 9134(f)(2), emphasis added.
10. United States v. American Library Association, 2003.
11. Landmark Communications, Inc. v. Virginia, 1978, p. 838.
14. American Library Association v. United States, 2002, p. 411.
15. Sherbert v. Verner, 1963, p. 405.
16. Hynes v. Mayor of Borough of Oradell, 1976, p. 617.
17. Perry Education Association v. Perry Local Educators’ Association, 1983, p. 45.
18. Stanley v. Georgia, 1969, p. 564.
19. Levin and Arafeh, 2002, p. iv.
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Editorial history
Paper received 28 December 2003; accepted 16 January 2004.
Copyright ©2004, First Monday
Copyright ©2004, Paul T. Jaeger and Charles R. McClure
Potential legal challenges to the application of the Children’s Internet Protection Act (CIPA) in public libraries: Strategies and issues by Paul T. Jaeger and Charles R. McClure
First Monday, Volume 9, Number 2 - 2 February 2004
https://firstmonday.org/ojs/index.php/fm/article/view/1117/1037
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