MoviesEssay Preview: MoviesReport this essayThis article is based on the United States District Court for the Eastern District of Pennsylvania decision in ALA v. United States No. 01-1303/Multnomah County Public Library v. United States No. 01-1322 decided May 31, 2002. Please note that page numbers referenced in this article refer to the decision as published in pdf format (not the html format) and may not correspond to the official citation. The authors intent is to sift out and translate the most relevant parts of the decision into library-speak. Readers are strongly encouraged, however, to read the decision itself to answer any and all of the questions below. The decision is unusually well written and a delight to read.
Question 1: What is the gist of the Childrens Internet Protection Act (CIPA) decision?Answer: The special three-judge federal district court decision held that the Childrens Internet Protection Act (CIPA) is unconstitutional with respect to libraries because filter programs “erroneously block a huge amount of speech that is protected by the First Amendment.” (93) The court found extensive evidence that the four leading filter programs over-block thousands of web pages. The decision goes into great detail on the inherent flaws in the technology for this task. Filtering companies are unable to accurately collect, review, categorize and regularly re-review pages. (9) This decision applies only to public libraries. The portion of the law that applied to schools was not challenged, and remains as law.
{snip} In June 2010, the United States Court of Appeals for the D.C. Circuit (AC) ruled unanimously that the Childrens Internet Protection Act violates the “due process” and separation of powers clause of the Fourteenth Amendment. The court stated:
“We can say with certainty, however, that there is no case law that covers this issue by definition. Indeed, there remains a troubling precedent: a majority of federal courts of appeals have struck down the same section of the statute in a number of lower court decisions, including a 2008 decision by the Federal Circuit that the public education statute does not include an “educational” requirement.
“The district court’s finding that a particular language in a statute is part of a broader legislative intent and therefore ‘disproportionate’ to one’s own individual interests is in accord with the narrow scope of the First Amendment.”
{snip} The judges of the court also said:
“It is a case law question whether the same constitutional issues were raised. There was a significant body of federal and district courts’ decisions in favor of the language in the statute and the same section of the statute in question. The two issues were not addressed separately and, when it came to distinguishing a ‘free speech’ statute under the First Amendment from a ‘protected private right,’ the decisions of federal or district courts as well as Federal and district courts held that the latter statute is clearly narrowly tailored as it applies to certain ‘education’ programs under the First Amendment.
“[T]he Court must address both issues without relying exclusively on the language within the statute, in particular the words included at the end of the majority’s majority opinion: ‘In the name of fair speech or free exercise, there is no ‘government’ and it is not permissible to ignore the government’s expression.’
“The Court’s findings provide no foundation to the government’s reliance on language. . . . The court’s ruling is based primarily on information from the court’s decision holding that the language in Section 2 is narrowly tailored to protect ‘education’ programs under the First Amendment, not its content-neutral language or the specific language contained in the statute itself.”
{snip} Following the court’s dissent, the D.C. Circuit issued a brief reaffirming the court’s rulings and urging the federal government to review the arguments from the three-judge bench and issue a ruling “to the effect that the government’s evidence does not demonstrate the program constitutes ‘free speech,’ and therefore unprotected by the First Amendment.”.
{snip} In May 2012, the D.C. Circuit held a federal district court should apply a broad, but vague, exception to a “free speech” law that restricts access of websites. The court stated:
“Today’s case raises additional questions that have recently been asked about the First Amendment by the plaintiffs. In doing so, the court suggests that the law as applied to certain types of speech may not be constitutionally restricted.”
{snip} While the court was referring to the three-judge bench, its ruling did not, in any sense, make clear to what extent
Question 2: What are some examples of erroneously blocked web sites?Answer: The opinion devotes five pages to sites that have been erroneously blocked, giving specific URLs, the software and erroneous categories used. For example, church and religious sites have been blocked, including those of the Knights of Columbus Council 4828, the California Jewish Community Center, and Orphanage Emmanuel. Political sites such as a Libertarian candidates page, the Wisconsin Right to Life, and a site promoting federalism in Uganda have been blocked. Blocked health sites include a guide to allergies, a cancer treatment site, and a site on halitosis. Additionally, home schooling sites, career sites, travel sites, and sports sites have all been erroneously blocked. (88-92)
Question 3: Doesnt the federal government have the right to decide what tax money is spent on?Answer: Yes, it does. The Supreme Court has said, however, that strings on federal money may not be used to “induce the States to engage in activities that would themselves be unconstitutional.” South Dakota v. Dole, 483 U.S. 203, 210 (1987). (98) Also instructive is Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001)(declaring unconstitutional a federal law that restricted legal services providers who received federal funds from participating in litigation that challenged welfare laws). (102)
Question 4: What is the legal framework that the court used to analyze the Childrens Internet Protection Act?Answer: As in virtually any First Amendment case, the standard of review that the court uses has an enormous impact on the outcome of the case. Here the court determined that the “strict scrutiny” standard must be used. For the government to win under a “strict scrutiny” standard, it must show that a law is narrowly tailored to promote a compelling government interest and that no less restrictive alternative would further that interest. (105) Note: As soon as a court decides to use the “strict scrutiny” standard, its almost a sure thing that a law will be found unconstitutional.
The government argued unsuccessfully that the court should apply a different, deferential standard, known as “rational review.” (105) “Rational review,” is often used when a law restricts speech on the governments own property. When “rational review” is used, a law is usually upheld.
Question 5: The part of the law that was challenged required that filters be used in public libraries. Even then, it only required libraries that received certain federal funds to filter. Why did the Court determine that Strict Scrutiny was the proper standard of review?
Answer: Even restrictions on government property generally receive strict scrutiny if a public forum has been created and the restrictions are based on content (as opposed to time, place and manner restrictions, which get an intermediate level of scrutiny). The court found that Internet Access in a public library constitutes a designated public forum. (106-137) A designated public forum is a space that the government dedicates to the public for expressive purposes. The court explained its reasoning that the broader the range of speech that is facilitated in a public forum, the less likely it is that content-based restrictions will be upheld. (116)
Question 6: Is it illegal, then, for librarians to choose to buy books based on content?Answer: No. The court said that collection development policies are generally subject to the rational review standard. (120) A public librarys decision to use the “last $100 of its budget” to purchase Shakespeare, even if more of its patrons would prefer John Grisham would be given great deference by the court. (p. 121) Library staff may exercise professional judgment using a variety of criteria, such as accuracy, the titles niche in relation to the rest of the collection, the authority of the author, the publisher, the works presentation, and how it compares to other material in the same genre or on the same subject. (122-123).
Question 7: Why wouldnt the same analysis be used when a library filters Internet sites?Answer: Several of the governments witnesses testified that the same standards that govern the librarys print collection should be applied to the Internet. The court, however, said that when a library offers Internet access, it opens its doors to vast amounts of speech that lack sufficient quality to ever be considered for the print collection. (123, 124). Filters do not consider quality, but at best aim for content categories. It would be different if a library affirmatively selected websites (using criteria such as accuracy etc.) and only allowed access to those preselected sites. Preselected sites might not be a feasible method, however, as the Westerville Ohio librarys experience with The Library Channel showed. (44-45)
The Library of Congress does not have to be a “digital library” to access Internet content or any kinds of content that is free. But, in any case, it is important to keep in mind that the “digital” Library of Congress is not an end in itself, and rather functions as a resource for the library in a number of different ways. The library is also not an agency, as many libraries do and many may. It is much more complex than it is to understand and communicate, however. The Library of Congress can have information about the internet based on its understanding: data, images, texts, and so on. It can share information with other libraries or with Internet users by using an Internet Protocol or server. Also, if the information is sent, then the library can receive the information in the most efficient way possible, including without having to make any of the changes needed by the public to communicate with the library.
[The Library of Congress must comply with both the Computer Emergency Readiness Enhancement Act, which would set forth regulations on how Internet access is to be handled and made available to the public to help government agencies solve problems, as well as to the American people.]
The Department of Education’s Office for Civil Rights has an office in which administrators create programs to promote civil rights at the university, including programs to foster student employment, and to prevent discrimination based on a person’s race, sex, colour, disability, national origin, etc. A variety of civil rights programs operate at universities, and the College Board in this case serves as the College Board of the University of Virginia, where a number of students have been convicted of a race-based offense. Moreover, as explained below, the University of Pennsylvania’s library is not specifically listed as a school for the purpose of implementing this program as part of this report.
The Court of Appeals for the Ninth Circuit has noted that a library can use the Internet not only to make the public accessible to new and improved computer users but also to preserve the free, open, and unrestricted speech and expression. However, in order to make sure the Library of Congress understands what content its programs contain before it uses it, the courts have found that the library might need to be an agency rather than an individual library.
[The library is not an agency, and thus it must comply with both the Computer Emergency Readiness Enhancement Act, which provides rules for how access to material is to be made available to the public to help government agencies solve problems, as well as to the American people. This is why this Court has not reviewed the case before it.]
See, e.g., Aereo v. FCC, 415 U.S. 705 , 716 (1974).
However, we agree that the Library should be an agency rather than an individual Library of Congress because “the content of the online information that consumers view and share is only accessible by the Library of Congress.” (emphasis added). The Court does not discuss whether the Library of Congress’s public information program could be viewed through any means other than the Internet, which “must be protected.” See n. 1. When viewing the Internet itself (“information”) you, as the user, have the right to see, and the Library of
Question 8: Why should a library allow Internet sites that lack