Speech: CIPA

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Having been rebuffed by the courts in its previous efforts to protect children by regulating speech on the Internet, Congress took a new approach with the Children’s Internet Protection Act (CIPA). See, e.g. Reno v. ACLU, 521 U.S. 844 (1997) (overturning the Communications Decency Act of 1996 on First Amendment grounds). With CIPA, Congress sought to condition federal funding for schools and libraries on the installation of filtering software on Internet-ready computers to block objectionable content.

CIPA made amendments to three federal funding programs: (1) the Elementary and Secondary Education Act of 1965, which provides aid to elementary and secondary schools; (2) the Library Services Technology Act, which provides grants to states for support of libraries; and (3) the E-rate program, under the Communications Act of 1934, which provides Internet and telecommunications subsidies to schools and libraries.

Under CIPA, schools and libraries that participate in the amended funding programs must certify that they are using software filters to protect against visual depictions that are obscene, constitute child pornography or, in the case of minors, are harmful to minors. CIPA allows library officials to disable the filters for patrons for bona fide research or other lawful purposes; however, disabling is not permitted for minor patrons if the library receives E-rate discounts.

“Harmful to minors” is defined under the Act as:

any picture, image, graphic image file, or other visual depiction that (i) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion; (ii) depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and (iii) taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors.

47 U.S.C. § 254(h)(7)(G). CIPA defines “minor” as a person not yet 17 years of age and allows local determinations as to what content is suitable for minors. See 47 U.S.C. § 254(h)(7)(D), (l)(2). CIPA was challenged in American Library Ass’n v. United States, 201 F. Supp. 2d 401 (E.D. Pa. 2002), by a group of libraries, library associations and website publishers. Under a strict scrutiny analysis, the court held that because CIPA conditioned federal funding on public libraries’ use of Internet filtering software, it induced libraries to violate their patrons’ First Amendment rights. As a result, it concluded that CIPA was unconstitutional and that Congress had exceeded its power under the Spending Clause. Therefore, it enjoined the government from withholding federal assistance for failure to comply with CIPA.

On June 23, 2003, the Supreme Court reversed the District Court’s holding. United States v. American Library Ass’n, 539 U.S. 194 (2003). It held that the use of Internet filtering software does not violate library patrons’ First Amendment rights. Therefore, CIPA is constitutional and a valid exercise of Congress’ spending power.

The Court held, in a plurality opinion, that libraries’ filtering of Internet material should be subject to a rational basis review, not strict scrutiny. It explained that, because collections decisions regarding printed material have generally only been subject to a rational basis review, decisions regarding which websites to block should likewise be subject to the same test. It reasoned that libraries are no less entitled to make content-based judgments about their collections when they collect material from the Internet than when they collect material from any other source.

Further, it reasoned that heightened judicial scrutiny is also inappropriate because “Internet access in public libraries is neither a ‘traditional’ nor a ‘designated’ public forum.” Id. at 2304. Therefore, although filtering software may overblock constitutionally-protected speech and a less restrictive alternative may exist, because the government is not required to use the least restrictive means under a rational basis review, CIPA is nonetheless constitutional.

Moreover, the Court held that Congress did not exceed its spending power by enacting CIPA because, when the government uses public funds to establish a program, it is entitled to define its limits. By denying federal funding, the government is not penalizing libraries that refuse to filter the Internet, or denying their rights to provide their patrons with unfiltered Internet access. Rather, it “simply reflects Congress’ decision not to subsidize their doing so.” Id. at 2308.

Chapter 2 - Content And Speech Regulation
Obscenity · Communications Decency Act - Obscene Materials · Children's Online Protection Act (COPA) · Children's Internet Protection Act (CIPA) · State Attempts At Regulation · First Amendment · Anonymity · International Content Regulation