Court Rules Children's Internet Protection Act Unconstitutional
Lace S. Cassidy

On May 31 a three-judge panel of the U.S. District Court for the Eastern District of Pennsylvania ruled unanimously that the Children’s Internet Protection Act (CIPA) was unconstitutional.  Latest in a series of laws created by Congress to control children’s access to pornographic or other potentially harmful material via the Internet on computers in public libraries, CIPA required that libraries seeking certain federal funds install filtering software on all computers with Internet access.

            In order to understand the importance of this decision, it is necessary to put it in context and briefly examine previous attempts to legislate use of the Internet by children.

            The National Information Infrastructure Initiative, developed in 1994 by then-President Clinton, sought to insure Internet connection for every school and classroom by 2000 (Simmons and Dresang 2001).  According to figures from the National Center for Educational Statistics (U.S. Department of Education), the percentage of public schools connected to the Internet rose in 2000 to 98 percent, with the percentage of connected public school classrooms (including computer labs, media centers, and any other instructional rooms) rising to 77 percent. This increased access to, and use of, computers in schools and public libraries attracted Congress’s attention, and such attention came in the form of legislation. http://nces.ed.gov/pubs/eiip/eiipsrc.asp

            First, came the Telecomunications Act of 1996.  This legislation established the “e-rate,” which made Internet access for all schools and public libraries possible at an affordable cost.  It also featured the Communications Decency Act (CDA), which attempted to restrict access to certain types of information on the Internet and to make the online transmittal of material considered to be indecent or offensive to a person under 18 a criminal act.  A lawsuit filed by the American Civil Liberties Union challenged the constitutionality of the law, and in June 1997, the CDA was declared unconstitutional.  The Supreme Court ruled that as a result of the law, adults would be denied access to material that was protected by the Constitution and that there were other ways to protect children from this material.  The Court also noted potential difficulties with enforcement of the CDA.

            The CDA was followed by the Child Online Protection Act of 1998 (COPA).  The focus here was on harmful commercial Internet content.  COPA was found to be unconstitutional by the U.S. Court of Appeals in June 2000.  An appeal was sent to the U.S. Supreme Court in February 2001. The Supreme Court on May 13, 2002, issued a decision on Congress's latest attempt to censor the Internet. The Court did not decide any of the core legal questions, but ordered a lower court to decide the case on a wider range of First Amendment issues. Meanwhile, a majority of justices appeared to have grave doubts about the law's ultimate constitutionality, and the Court left in place an injunction barring enforcement of the law.  The case has to do with a law passed by Congress in 1998 called the Child Online Protection Act (COPA), a broad censorship law that severely restricts any speech on the Web that is "harmful to minors," and imposes steep fines and prison terms for violators.

            Next, Congress passed the Children’s Internet Protection Act (CIPA) in December 2001.  This legislation required that all libraries receiving funds from the Elementary/ Secondary Education Act’s School Technology Fund, the Library Services Act, and e-rate service discounts install and use Internet filters to block obscenity, child pornography, and material deemed harmful to minors.  Specific policies for Internet use were also required.

            This legislation set off another round of debate concerning not only First Amendment issues but also the effectiveness of filtering technology and the appropriateness of its use.  Once again, a lawsuit was filed.  This time the American Library Association, among others, joined the ACLU in bringing suit, arguing against the law before the U.S. District Court March 26.  The Court’s ruling of CIPA’s unconstitutionality then came down in May.

            In their ruling the judges said that the use of filters would prevent access to material protected by the Constitution.  They also said that filters are problematic not only because they often block material that should be available but also because they underblock material, thereby allowing access to that which is not protected.  In addition, the Court noted that there are a number of alternatives to filters available to libraries in to help them protect children. Now, according to the provisions of the law, the ruling automatically goes to the Supreme Court for review after the government’s filing of a notice of appeal June 20.  Stay tuned.  The battle continues.

 Note:  The complete text of all legislation and rulings mentioned, as well as information about filtering, can be found on line.  Start with the ALA site: http://www.ala.org/cipa.  A search of MSN using Children’s Internet Protection Act yielded 82,160 cites to check.

            The full citation for the Simmons and Dresang source is the following:  Simmons, John S., and Eliza T. Dresang.  School Censorship in the 21st Century.  Newark, DE:  International Reading Association, 2001.