416. "Scrap Porn-Blocking Law, Start Over" The National Law Journal (March 10, 2003) p. A13.

The U.S. Supreme Court heard oral arguments on March 6 regarding a Department of Justice (DOJ) appeal of a 2002 ruling by the U.S. District Court for the Eastern District of Pennsylvania that found the Children's Internet Protection Act unconstitutional. The law is, unfortunately, deeply flawed, both from the point of view of the First Amendment and in its focus on preventing children's access to pornography only, and not to violence as well. The Supreme Court should find the law unconstitutional and send Congress back to the drawing board.

The law was enacted in 2000 after several public programs were established to provide funds to schools and libraries for Internet access. It requires the recipients of such funds to install software to block child pornography and material deemed obscene or harmful to minors.

The act paints with a broad brush, defining such material to include any image that, taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex or excretion, including depictions of sexual acts or lewd exhibition of genitals. The American Civil Liberties Union (ACLU) and the American Library Association challenged the Internet Protection Act, arguing that available filtering technology is a blunt instrument, blocking much appropriate and useful material while, ironically, failing to block the specified harmful material.

The ACLU and the library group also contended that installing filters without first determining which specific content lawfully may be blocked is an unconstitutional prior restraint. The plaintiffs argued that the software designers-thus turned into censors with the power to exercise judgment regarding filtering parameters-should not be exempt from constitutional scrutiny. Finally, the plaintiffs pointed out that the act denies access to blocked material to adults as well as minors. The government argued that libraries can simply decline the affected federal subsidies, maintaining their right to allow unfiltered access to pornography.

What is society's role?

The dispute comes down to a fundamental disagreement about society's role in protecting children. Civil libertarians are so intent on protecting adults' First Amendment rights that they ignore the heavy cost to children. Part of the problem is that while the American Library Association does not endorse children viewing obscene materials, it also refuses to condemn it or do anything about it. In contrast, the advocates of the law and similar measures such as the V-chip argue that society has not merely a right, but an obligation, to protect children from vile material.

The Philadelphia judges justified their ruling in a 195-page decision that focused on content for all users, but not on the extent of minors' First Amendment rights. The court should have distinguished between the First Amendment rights of adults and minors. This bias is the result of a major flaw in the way the law was drafted, mandating filtering for all patrons. Even when the court discusses group-specific blocks, it briefly covers blocks on various kinds of materials that may offend or be deemed inappropriate by library employees, but without mentioning the impact on minors. Children's First Amendment rights were not the focus, even though that is the statute's purpose.

The district court recognized, but dismissed, the argument that much protected material, such as Hustler magazine and X-rated videos, is typically excluded from library collections, finding that providing Internet access is more akin to opening a public forum than to a library's active selection of books to purchase. Once such a public forum is provided, the library cannot selectively exclude certain voices on the basis of content without strict scrutiny. The court also disregarded another angle: If a child wishes to check out an inappropriate library book, he would need to ask a librarian to retrieve it and would leave a record of having borrowed it, a disincentive that does not exist when using the Internet.

As I see it, DOJ made a mistake in appealing the ruling. The law, despite its noble purpose, is severely flawed. We would be better served were Congress to repeal the act and enact a new law requiring institutions receiving public funds to either set aside filtered computers for children or set aside time when the filters are removed, for adult access.

Given the law's flaws, it is hard to believe that the Supreme Court will deem it constitutional. If the court rejects DOJ's appeal, the issue will make its awkward way back to Congress for a fourth try to enact a law that protects minors. Congress should also correct a serious flaw in the act: It deals with pornography, but not violence, even though social-science data show depiction of the latter is much more harmful to children. This time, one hopes, legislators not only will distinguish between adults and minors, but also will consider concerns about depictions of gratuitous violence.


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