| By a 6 to 3 vote, the U.S. Supreme Court upheld the Internet filtering provisions of the Children’s Internet Protection Act (“CIPA”) as applied to libraries. The action reversed an earlier federal District Court decision that had exempted libraries from filtering. The earlier decision, based on suits brought by the American Library Association and the American Civil Liberties Union, argued that filtering was in violation of the First Amendment primarily because filters indiscriminately blocked constitutionally protected information.
The Supreme Court disagreed, arguing instead that:
(1) Although libraries “seek to provide a wide array of information, their goal has never been ‘universal coverage.’” “Internet access is neither a ‘traditional’ nor a ‘designated’ public forum.” “Especially because public libraries have traditionally excluded pornographic material from their other collections, Congress could reasonably impose a parallel limitation on its Internet assistance programs. As the use of filtering software helps carry out these programs, it is permissible…”
(2) “Concerns over filtering software’s tendency to erroneously ‘overblock’ access to constitutionally protected speech…are dispelled by the ease with which patrons may have filtering software disabled.” Given that adult users’ access to material is not “burdened to any significant degree, the statute is not unconstitutional….”
(3) “Congress has wide latitude to attach conditions to the receipt of federal assistance to further its policy objectives….” “Given the comparatively small burden imposed upon library patrons seeking legitimate Internet materials, it cannot be said that any speech-related harm that the statute may cause is disproportionate when considered in relationship to the statute’s legitimate objectives.”
One interesting aspect of the decision, that may affect all E-rate applicants, is an underlying premise expressed by two Justices that an adult can simply ask a librarian to “please disable the filter” and need not offer any reason for the request. This view appears to rely on a less restrictive condition for disabling filters that was previously expressed in terms of “bona fide research.”
The SLD has not yet posted new CIPA guidance for libraries, and is unlikely do so with any degree of specificity without a FCC decision. In the absence of such information, here are our predictions:
(1) CIPA filtering requirements are unlikely to be applied to FY 2003 funding since libraries have already begun to file FY 2003 Form 486s certifying compliance with only the Internet policy requirements of CIPA. Even if the SLD started tomorrow, a revised Form 486 would not be available for some time. We cannot envision a requirement for re-certification of filtering or the application of a different certification requirement on subsequently filed FY 2003 Form 486s.
(2) Assuming a FCC decision later this summer or fall, we would expect that libraries will be subject to full CIPA compliance in FY 2004 (not that they will simply have to certify that they are “undertaking action” to install filters by FY 2005).
We recognize that many libraries are philosophically opposed to this decision and that some have already expressed intentions to forego E-rate funding for Internet Access and Internal Connections. We urge careful consideration of such action. Because the FCC has not established specific filtering standards, the practical reality is that filtering need not be either highly intrusive or expensive. If libraries plan to apply for E-rate on their telecommunications services anyway (which are not subject to CIPA compliance), we would hate to see them pass up valuable funding for other E-rate eligible services.
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