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New York City
October 2003

Internet Censorship: United States v. American Library Association
by Martha McCarthy, Ph.D.

With the mind-boggling growth of the Internet, policy makers have become increasingly concerned about protecting children from viewing pornographic and other harmful materials via cyberspace. Since 1996, Congress has made several attempts to enact legislation to shield children from access to certain materials, but only the most recent law, the Children’s Internet Protection Act (CIPA), has received Supreme Court endorsement. The 2003 decision upholding CIPA, United States v. American Library Association, was closely watched by civil rights organizations and children’s advocacy groups.

CIPA differs from earlier measures that attempted to regulate web site operators and impose criminal sanctions for certain transmissions to minors. CIPA instead requires public libraries and school districts receiving federal technology funds to enact Internet safety policies that include filtering measures to protect children from access to obscene, pornographic, or other harmful images. Thus, CIPA focuses on the recipients, rather than on those sending the materials.

The challenge to CIPA asserted that the blocking software prevents library patrons from accessing some constitutionally protected speech and causes libraries to relinquish their First Amendment rights as a condition of receiving federal aid. Disagreeing, the Supreme Court held that Congress has wide latitude to attach reasonable conditions to the receipt of federal funds; refusal to fund an activity is not the same as imposing a criminal sanction on the activity. The Court concluded that CIPA does not prescribe a condition that would be unconstitutional if performed by libraries themselves, noting that a number of libraries were using filers prior to CIPA.

The Court further held that Internet access in public libraries does not convert the libraries into a public forum, because a library does not acquire Internet terminals to create a forum for web publishers to express themselves. Instead, the purpose of such access is to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality. The Court broadly interpreted CIPA’s stipulation that adults can ask for web sites to be unblocked for research and other lawful purposes as meaning that adults can make such requests without specifying reasons, which reduces the concern that over-blocking will impair First Amendment rights of adult library patrons.

Despite the Supreme Court decision, there may be challenges to the application of CIPA in some public libraries, with adults alleging that procedures to disable filters are too cumbersome. Also, student plaintiffs in school settings may allege that their protected speech is being censored if the software filters block their expression that is not considered obscene, vulgar, or inflammatory. The tension between protecting minors from harmful materials and safeguarding free expression rights seems likely to generate a steady stream of litigation involving censorship in cyberspace.#

Martha McCarthy, Ph.D. is the Chancellor Professor, School of Education, Indiana University.

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