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Commentary

Ignoring the Irrationality of Internet Filters, the Supreme Court Upholds CIPA

By Marjorie Heins

Back in 1998, in the midst of impassioned debates over how to shield minors from the presumed harms of online pornography, Internet scholar Lawrence Lessig warned of the danger of advocating Internet filters as a "less restrictive alternative" to criminal bans on "indecent" speech. Filtering software is "opaque," Lessig pointed out (only the manufacturers know what is blocked), and because it necessarily relies on blunt, mechanistic key words and phrases to identify potentially troublesome material, it censors far too much. Lessig warned that this "less restrictive means," touted by free speech activists in their First Amendment challenge to Congress's first Internet censorship law, the 1996 Communications Decency Act, would end up restricting much more speech than a "properly crafted" criminal ban.1

On June 23, 2003, Lessig's fear came to fruition with the Supreme Court's 6-3 decision in United States v. American Library Association. The ALA decision reversed a long and careful ruling in 2002 by a 3-judge court striking down CIPA, the "Children's Internet Protection Act," which forces libraries that receive e-rate discounts or other federal aid for Internet connections to install filters on all of their computers, whether used by minors or adults, including library staff. (CIPA also applies to schools, but those provisions were not at issue in the ALA case.) The 3-judge decision had explained in detail the vast problems of inaccuracy, overblocking, and secrecy that cause filters, even at their narrowest, "sexually explicit" settings, to block tens of thousands of Web pages with no sexual content, on subjects ranging from religion to politics, careers to public health.2

Ignoring or understating these problems, the plurality opinion by Chief Justice Rehnquist in U.S. v. ALA said that filtering the Internet is no different from book selection decisions that libraries make every day. He added that because the government is providing funds for Internet access, it has free rein to determine the scope of the information to be provided; and that to the extent that "erroneous" blocking of "completely innocuous" sites raises a constitutional problem, "any such concerns are dispelled" by CIPA's provision giving libraries the discretion to disable the filter upon request from an adult.3

Justices Kennedy and Breyer focused especially on this "disabling" provision in their separate opinions voting to uphold CIPA. Kennedy said that if libraries fail to unblock, or adults are otherwise burdened in their Internet searches, then a lawsuit challenging CIPA "as applied" to that situation might be appropriate.4

Dissents by Justices Stevens and Souter (joined by Justice Ginsburg) paid more attention to the reality of what filters actually do, and to the inevitable delays and other impediments to discretionary disabling that make it a poor substitute for unfettered Internet access. Souter added that Rehnquist's analogy to library book selection is flawed: "the proper analogy is not to passing up a book that might have been bought; it is either to buying a book and then keeping it from adults lacking an acceptable 'purpose,' or to buying an encyclopedia and then cutting out pages with anything thought to be unsuitable for all adults."5

Like many Supreme Court cases, U.S. v. ALA dealt largely with issues of legal doctrine -- whether Internet access at libraries constitutes a "public forum" (the majority said no); whether First Amendment "strict scrutiny" applies to CIPA (no, again); and to what extent previous Court decisions have limited Congress's ability to require censorship as a condition on funding. As Stevens pointed out, earlier cases have held that speech restrictions are permissible when "the government seeks to communicate a specific message," but not when funded programs are designed to facilitate a wide range of private expression -- universities, libraries, and the Internet being prime examples.6

Speaking of legal doctrine, though, CIPA actually should have been struck down under the Court's most lenient, "rational basis" level of First Amendment scrutiny, because the very operation of filters is irrational. In addition to massive, unpredictable, often ludicrous overblocking (the ludicrous examples range from "pussy willows" to "Dick Armey" to "magna cum laude"),7 filters depend on word recognition, while CIPA itself requires only the blocking of "visual depictions." And because their codes are considered proprietary information, only the manufacturers know what is blocked. In a practical, real-world sense, as Lessig noted 5 years ago, filtering is more insidious than a criminal law, which at least has some definition of what is prohibited, and which operates as a punishment after the fact, rather than blocking out speech in advance.

There are other real-world problems with CIPA, some of them noted in Justice Souter's dissent. In addition to the discretionary nature of the disabling provision, the inevitable delays, and the inability or reluctance of many library patrons to request disabling, the average Web surfer or researcher will not know when to ask that a site be unblocked or a filter disabled entirely. Only if a specific Web site is sought will the user know that it is blocked. In a general search for information, he or she will not even know what is missing.

Perhaps the most disheartening aspect of the various opinions in the ALA case was the proposition expressed by all the justices, including the dissenters, that if CIPA only applied to minors, there would be no constitutional problem at all. The assumption that minors of all ages are so harmed by access to sexually explicit content as to justify broad censorship laws remains unexamined in judicial decisions, despite some attempts by litigators and friends of the court in previous cases to raise the question.8 No justice even noted the harm to junior high and high school-age minors when they cannot complete research reports on drugs, AIDS, or many other controversial topics because of filters in their schools and libraries, or when they cannot get needed information on sexual orientation and sexual health.

CIPA was Congress's third attempt at an Internet censorship law, and perhaps it was inevitable that at some point, one would be upheld - at least so long as the "harm to minors" rationale remains unexamined.

June 24, 2003

Notes

1. Lawrence Lessig, "What Things Regulate Speech," 38 Jurimetrics 629 (1998).

2. American Library Ass'n v. United States, 202 F.Supp. 2d 401, 431-448 (E.D Pa. 2002).

3. United States v. American Library Ass'n, 123 S.Ct. 2297, 2301-09 (2003), (plurality opinion of Chief Justice Rehnquist). CIPA's e-rate provision only allows adults to request unblocking; its sections dealing with funding under the Library Services and Technology Act allow both adults and minors to make the request.

4. United States v. American Library Ass'n, 123 S.Ct. at 2309-12 (concurring opinions of Justices Kennedy and Breyer).

5. United States v. American Library Ass'n, 123 S.Ct. at 2317 (dissenting opinion of Justice Souter).

6. United States v. American Library Ass'n, 123 S.Ct. at 2321-22 (dissenting opinion of Justice Stevens).

7. See Free Expression Policy Project, Internet Filters: A Public Policy Report, and the Brief Amici Curiae of Partnership for Progress on the Digital Divide et al. in United States v. American Library Ass'n, S.Ct. No. 02-361 (Feb. 10, 2003).

8. See, e.g., the Brief Amici Curiae of the Society for the Scientific Study of Sexuality et al. in Ashcroft v. ACLU, S.Ct. No. 00-1293 (Sept. 20, 2001).


The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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