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.
Education
Update, Inc., P.O. Box 1588, New York, NY 10159.
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the publisher. © 2003.
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