Concerned Women for America - Court Rules Federally-Funded Libraries Can’t Block Smut

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Court Rules Federally-Funded Libraries Can’t Block Smut 6/5/2002

Court Rules Federally-Funded Libraries Can’t Block Smut
By Jan LaRue, Esq.

In an astonishing ruling issued May 31, a federal district court created a First Amendment right not to be embarrassed. One would think a court concerned about embarrassment would have felt constrained from doing so. Chagrin notwithstanding, the court also applied First Amendment scrutiny to speech that has no First Amendment protection.

In American Library Association v. U.S. and Multnomah County Public Library v. U.S., 2002 WL 1126046 (E.D. Pa. May 31, 2002), a three-judge panel for the federal district court in Philadelphia held that the Children’s Internet Protection Act (CIPA) is unconstitutional on its face and permanently enjoined its enforcement. The government has 20 days from May 31 in which to appeal directly to the Supreme Court. It is anticipated that the Department of Justice will advise the Solicitor General to appeal.

In 2000, Congress passed and President Bill Clinton signed into law, the CIPA so that federal tax dollars would not be used to turn libraries into dirty peep shows open to kids. Across America public libraries that provide unfiltered Internet access and rely on acceptable use policies are experiencing numerous incidents of patrons, including children, accessing hard-core and child pornography, adults exposing children to pornography, and patrons engaging in indecent exposure and sexual assaults, resulting in a hostile work environment.

The CIPA requires public schools (K-12th grade) and public libraries that accept certain federal subsidies for Internet access to use blocking technology on any computer with Internet access to protect against access by any user to visual depictions of obscenity, child pornography, and material harmful to minors when a minor is using a computer.

The ACLU, on behalf of several libraries and others, and the American Library Association filed separate lawsuits in federal district court in Philadelphia challenging the library provisions of the CIPA, claiming that it violates the First Amendment.

The CIPA is a funding law not a direct regulation of speech. Any library that doesn’t accept federal funding does not have to comply with CIPA’s requirements. The CIPA has no criminal or civil penalties, it does not censor any speech nor remove any material from the Internet, and it does not apply to any entity other than a public school or library that willingly accepts the federal funds and its requirements.

Historically, the courts have recognized and deferred to Congress’s broad power under the Spending Clause of the U.S. Constitution. For example, in Rust v. Sullivan, 500 U.S. 173 (1991), the Court rejected a First Amendment facial challenge to federal regulations prohibiting federally funded healthcare clinics from providing counseling concerning the use of abortion as a method of family planning. In South Dakota v. Dole, 483 U.S. 203 (1987), the Supreme Court upheld a federal law that required states to raise their drinking age to 21 in order to receive federal highway funds. The CIPA court stated that Dole “supplies the proper threshold analytic framework” to decide the case.

Dole set out four constitutional limitations on Congress’s exercise of the spending power: 1) The “exercise of the spending power must be in pursuit of ‘the general welfare’”; 2) “any conditions that Congress sets on states’ receipt of federal funds must be sufficiently clear to enable recipients ‘to exercise their choice knowingly, cognizant of the consequences of their participation’”; 3) “the conditions on the receipt of federal funds must bear some relation to the purpose of the funding program;” and 4) “the spending power ‘may not be used to induce the States to engage in activities that would themselves be unconstitutional.’” The court used the example of requiring the states to inflict “cruel and unusual punishment” as an illegitimate exercise of Congress’ spending power.

The plaintiffs only challenged the CIPA under the fourth prong of Dole, arguing that the “CIPA will induce public libraries to violate the First Amendment rights of Internet content-providers to disseminate constitutionally protected speech to library patrons via the Internet, and the correlative First Amendment rights of public library patrons to receive constitutionally protected speech on the Internet.”

Here is where the embarrassment begins. Despite acknowledging that the CIPA only requires blocking of material that is obscene, child pornography and material harmful to minors when a minor is using a library computer, that none of these categories of speech has First Amendment protection, and that the CIPA defines each of these categories according to definitions upheld by the Supreme Court, the court, nonetheless, applied First Amendment scrutiny to unprotected speech. Worse yet, the court decided that the CIPA is subject to strict-scrutiny, which is the highest level of judicial review. This is especially mortifying when the plaintiffs are contending that the CIPA is unconstitutional on its face.

The simple question the court should have answered under the fourth prong of Dole is may the states ban access to obscenity, child pornography and material harmful to minors from minors without violating the Constitution? A quick check of the federal and state criminal codes and case books leaves no doubt that they may and have done so since the founding of the nation. How could it possibly be unconstitutional for Congress or the states to ban access to speech that has no constitutional protection?

Every case cited by the court involves constitutionally protected speech. For example, Sable Communications of Cal., Inc., v. FCC, 492 U.S. 115 (1989): “(The Government may … regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest”). Somehow, the court missed the point that Sable involved “constitutionally protected speech” and is inapposite to this case.

The court also cited U.S. v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000), but missed several relevant comments in Justice Anthony Kennedy’s majority opinion: “The speech here, all agree, is protected speech; and the question is what standard the Government must meet in order to restrict it. As we consider a content-based regulation, the answer should be clear: The standard is strict scrutiny.” Id. at 814. He added, “We have made clear that the lesser scrutiny afforded regulations targeting the secondary effects of crime or declining property values has no application to content-based regulations targeting the primary effects of protected speech.” Id. at 813 (citing Reno, supra, at 867-868, 117 S.Ct. 2329; Boos, 485 U.S., at 320-321, 108 S.Ct. 1157.) More cases the CIPA court cited without noticing that they involved protected speech.

Justice Clarence Thomas in his concurring opinion in Playboy emphasized that First Amendment scrutiny does not apply to obscene speech: “A governmental restriction on the distribution of obscene materials receives no First Amendment scrutiny. Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).” Id. at 829. Another case cited and point missed by the CIPA court.

Justice Thomas concluded by stating “What remains then is the assumption that the programming restricted by § 505 is not obscene, but merely indecent. The Government, having declined to defend the statute as a regulation of obscenity, now asks us to dilute our stringent First Amendment standards to uphold § 505 as a proper regulation of protected (rather than unprotected) speech.” Id. at 830. [Italics in original.]

It is clear that unprotected speech receives no First Amendment scrutiny, much less strict-scrutiny. The court repeatedly reasoned from its false premise that CIPA applies to protected speech:

Where, as here, strict scrutiny applies, the government may not justify restrictions on constitutionally protected speech on the ground that such restrictions are necessary in order for the government effectively to suppress the dissemination of constitutionally unprotected speech, such as obscenity and child pornography. “The argument … that protected speech may be banned as a means to ban unprotected speech …. turns the First Amendment upside down. The Government may not suppress lawful speech as the means to suppress unlawful speech.” Ashcroft, 122 S. Ct. at 1404.

What “turns the First Amendment upside down” is holding that on its face, CIPA restricts constitutionally protected speech.

Congress recognized that blocking technology is not 100 percent effective and made provision in CIPA that constitutionally protected speech wrongly blocked by technology should be unblocked. The court recognized the disabling provision but held that forcing a patron to ask that a Web site be unblocked violates the First Amendment because it could cause the patron to be “embarrassed”:

The evidence reflects that libraries can and do unblock the filters when a patron so requests. But it also reflects that requiring library patrons to ask for a Web site to be unblocked will deter many patrons because they are embarrassed, or desire to protect their privacy or remain anonymous. Moreover, the unblocking may take days, and may be unavailable, especially in branch libraries, which are often less well staffed than main libraries. Accordingly, CIPA’s disabling provisions do not cure the constitutional deficiencies in public libraries’ use of Internet filters.

In the final part of its wrongly applied First Amendment analysis, the court held that there are several less restrictive alternatives for libraries to use instead of software filtering. The court made another mistake of law by failing to recognize that even when applicable to constitutionally protected speech, less restrictive means have to be just as effective as the means chosen by the government:

We find that there are plausible, less restrictive alternatives to the use of software filters that would serve the government’s interest in preventing the dissemination of obscenity and child pornography to library patrons. In particular, public libraries can adopt Internet use policies that make clear to patrons that the library’s Internet terminals may not be used to access illegal content. Libraries can ensure that their patrons are aware of such policies by posting them in prominent places in the library, requiring patrons to sign forms agreeing to comply with the policy before the library issues library cards to patrons, [where is the concern for embarrassment and anonymity here?] and by presenting patrons, when they log on to one of the library’s Internet terminals, with a screen that requires the user to agree to comply with the library’s policy before allowing the user access to the Internet.
Once a violation of a library’s Internet use policy is detected through the methods described above, a library may either issue the patron a warning, revoke the patron’s Internet privileges, or notify law enforcement, if the library believes that the patron violated either state obscenity laws or child pornography laws. [Apparently the court does not think that warnings, having privileges revoked or getting arrested is embarrassing. Furthermore, what patron too “embarrassed” to ask for unblocking is going to dispute with a library official over any of these punishments?] Although these methods of detecting use of library computers to access illegal content are not perfect, and a library, out of respect for patrons’ privacy, may choose not to adopt such policies, the government has failed to show that such methods are substantially less effective at preventing patrons from accessing obscenity and child pornography than software filters.

The court concluded that no library can comply with the CIPA without violating the First Amendment:

In view of the severe limitations of filtering technology and the existence of these less restrictive alternatives, we conclude that it is not possible for a public library to comply with CIPA without blocking a very substantial amount of constitutionally protected speech, in violation of the First Amendment. Because this conclusion derives from the inherent limits of the filtering technology mandated by CIPA, it holds for any library that complies with CIPA’s conditions. Hence, even under the stricter standard of facial invalidity proposed by the government, which would require us to uphold CIPA if only a single library can comply with CIPA’s conditions without violating the First Amendment, we conclude that CIPA is facially invalid, since it will induce public libraries, as state actors, to violate the First Amendment. Because we hold that CIPA is invalid on these grounds, we need not reach the plaintiffs’ alternative theories that CIPA is invalid as a prior restraint on speech and is unconstitutionally vague.

Hopefully, the Supreme Court will want to diminish the embarrassment to courts and reverse this ruling by turning the First Amendment right side up.

Jan LaRue is chief counsel for Concerned Women for America.