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Battles Continue Over Internet Filters

(November 11, 2012) - Internet filtering is a fact of life in institutions across the country as a result of "CIPA," the 2000 federal law that requires a "technology protection measure" to block obscenity and child pornography on all computers in schools and libraries that receive federal aid for Internet access. Since no filtering technology has the capacity to interpret and apply the complex and unpredictable law of obscenity or child pornography, filters also block many thousands of legal and constitutionally protected web sites. Some schools and libraries, moreover, go beyond the requirements of CIPA to activate categories such as "occult," which block material having nothing to do with sex.

Ever since the Supreme Court upheld CIPA in 2003, the American Civil Liberties Union and the American Library Association have been battling the overbroad use of Internet filters to discriminate against topics or viewpoints that school boards, library boards, and filter manufacturers dislike. Common among the targets of such discrimination are web sites that present a positive approach to homosexuality or that provide information about nonmainstream religions such as Wicca.

In two recent cases, courts have condemned this sort of discrimination. The first, filed by the ACLU against the Camdenton, Missouri school district, challenged the use of a filter that blocks gay-friendly sites under the category of "sexuality" while allowing gay-hostile sites under the category of "religion." As a result, not only the Gay-Straight Alliance and hosts of other sites supportive of GLBT teens but the 2003 Supreme Court decision in Lawrence v. Texas, striking down a law that criminalized homosexual sodomy, were blocked. Even Evangelicals Concerned, a religious support group for gays and lesbians, was blocked as "sexuality"; by contrast, the Christian Coalition, an opponent of gay marriage, was classified as "religion" and allowed. (See "School District Told to Replace Web Filter Blocking Pro-Gay Sites.")

In March 2012, a federal district judge issued a preliminary injunction ordering Camdenton to discontinue its discriminatory system. The district then agreed to a settlement of the case which provides that it will stop blocking the sites, submit to monitoring for 18 months, and pay $125,000 in legal fees and costs. In addition, according to Campus Pride, the filtering software company used by the district "changed its design to allow access to thousands of websites that had been blocked under its old configuration."

In the second case, the ACLU sued the Salem, Missouri public library in January 2012 for refusing to unblock access to Wiccan and Native American religious sites, and to astrology sites, that were categorized by the filter as "occult" and "criminal." A library patron's request to unblock the sites was only partially granted; according to the court complaint, the librarian said that "she only allows people to view blocked websites if it pertains to their job, if they are writing a paper, or if she determined that they otherwise have a legitimate reason to view the content." She added " she had an 'obligation' to call the 'proper authorities' to report those who were attempting to access blocked sites if she thought they would misuse the information they were attempting to access."

In April, a federal judge denied the library board's motion to dismiss the case and scheduled a trial on the question of whether the library director and board violated the patron's First Amendment rights by refusing to unblock sites discussing astrology and the Wiccan religion. The trial date is in June 2013.

[Update: In March, the case was settled, in a consent judgment that barred the library from blocking sites classified as "occult" or "criminal." Tony Rothert, legal director of the ACLU of Eastern Missouri, said: "Even libraries that are required by federal law to install filtering software to block certain sexually explicit content should never use software to prevent patrons from learning about different cultures." See "ACLU Receives Judgment Against Library."]

The Supreme Court's 2003 decision upholding CIPA rationalized that to the extent that the blocking of "completely innocuous" sites raised a constitutional problem, "any such concerns are dispelled" by the law's provision giving libraries the discretion to disable the filter upon request from an adult. In defending the law at oral argument before the Supreme Court, the government attorney said that librarians would be required to unblock sites on request. Justice Anthony Kennedy wrote in a concurring opinion 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.

In dissent, Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg pointed to the inevitable delays and other impediments to discretionary disabling that make it a poor substitute for unfettered Internet access (see Ignoring the Irrationality of Internet Filters, the Supreme Court Upholds CIPA").

See also FEPP's Fact Sheet on Internet Filters and Internet Filters: A Public Policy Report for more on the dangers of filtering software.

See First Post-CIPA Lawsuit Filed Against a Library For Refusing to Dismantle Filtering Software for a case that was not successful as a matter of law, but that did lead the defendant library to change its filtering policies.

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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