Filtering Software in Public Libraries: Traditional Collection Decision or Congressionally Induced First Amendment Violation? - Christopher Harne

• Publication year: 2004

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Filtering Software in Public Libraries: Traditional Collection Decision or Congressionally Induced First Amendment Violation?

In United States v. American Library Ass'n,¹ the United States Supreme Court held that filtering provisions of the Children's Internet Protection Act ("CIPA" or "Act")² are constitutional and are a valid exercise of Congress's spending power because they do not induce public libraries to violate their patrons' First Amendment rights.³ The Court also held that CIPA does not place unconstitutional conditions upon public libraries' receipt of federal funding.⁴

I. Factual Background

Congress provides federal assistance to public libraries for Internet access through the E-rate program⁵ and the Library Services andTechnology Act ("LSTA").⁶ These programs allow public libraries to provide Internet access to their patrons by authorizing discounted rates and offering federal grants. The E-rate program, allowing qualified libraries to purchase Internet access at a discount, was established by the Telecommunications Act of 1996.⁷ In the fiscal year ending June 30, 2002, discounts earned by public libraries through the E-rate program totaled $58.5 million. Through the LSTA, the Institute of Museum and Library Services awards grants to state agencies overseeing library systems to purchase Internet access and other computer-based telecommunications technologies. Congress appropriated more than $149 million in LSTA grants in fiscal year 2002.⁸

Upon discovering that library patrons, including minors, were regularly using the Internet to visit pornographic sites, Congress became concerned that its dollars were being used to facilitate access to pornography. of particular concern was evidence that patrons were viewing child pornography and that obscene material of all varieties was being left on computer screens and printers for everyone to see. In response to the problem, Congress enacted CIPA. The Act contains filtering provisions that deny federal funding for Internet access to public libraries that do not install software that blocks websites containing images that constitute obscenity or child pornography.⁹ The provisions provide, in part, that a library may not receive federal assistance unless it has "'a policy of Internet safety for minors that includes the operation of a technology protection measure.'"¹⁰ However, the Act allows libraries to disable filters "'to enable access for bona fide research or other lawful purposes.'"¹¹

The American Library Association ("ALA") joined a group of libraries, library patrons, and web site publishers in challenging the constitutionality of CIPA's filtering provisions in the United States District Court for the Eastern District of Pennsylvania. The ALA alleged that CIPA's filtering provisions induce public libraries to violate the First Amendment rights of their patrons, and in the alternative, that the Act places an unconstitutional condition upon the libraries' receipt of federal assistance by requiring them to surrender their First Amendment right to provide the public with access to constitutionally protected speech.¹²

The district court found for the ALA, ruling that the filtering provisions were facially invalid on the ground that they induced public libraries to violate patrons' First Amendment rights. The district court enjoined the Government from withholding federal assistance for failure to comply with CIPA, reasoning that the Internet is a public forum subject to strict scrutiny. Although it found that the Government has a compelling interest in protecting minors from obscenity and preventing the dissemination of child pornography, the district court determined that the use of software filters is not narrowly tailored to further that interest.¹³

The Government appealed the district court's decision, and the United States Supreme Court noted probable jurisdiction. In a 6-3 decision reversing the ruling of the United States District Court for the Eastern District of Pennsylvania, the Supreme Court held that the filtering provisions of the Children's Internet Protection Act are constitutional because they do not induce public libraries to violate their patrons' First Amendment rights,¹⁴ and CIPA does not place unconstitutional conditions upon public libraries' receipt of federal funding.¹⁵

II. Legal Background

A. Congressional Authority Under the Spending Clause

The Spending Clause¹⁶ of the United States Constitution reads, in pertinent part: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States."¹⁷ Congress's authority under the Spending Clause was defined by the Supreme Court in South Dakota v. Dole.¹⁸ In that case, the state of South Dakota challenged the constitutionality of 23 U.S.C. Sec. 158,¹⁹ which directs the Secretary of Transportation to withhold a percentage of federal funding for highways from states that allow persons under the age of twenty-one to purchase or possess alcohol.²⁰ South Dakota was subject to the statute's withholding policy because it permitted persons nineteen years of age or older to purchase beer that contained up to 3.2 percent alcohol.²¹ The Supreme Court upheld the constitutionality of the statute, affirming that Congress has broad authority to condition its granting of federal assistance upon the recipient's compliance with desired policy objectives.²² However, the Court noted the existence of certain restrictions that limit Congress's otherwise broad spending power.²³ With these restrictions, courts generally give substantial deference to the judgment of Congress, but the Court in Dole reiterated that separate constitutional provisions may provide an independent bar to congressional action under its spending power.²⁴ The Court defined this "independent constitutional bar" by announcing the proposition that Congress may not use its spending power to induce a federal assistance recipient to violate the constitutional rights of a third party.²⁵ Applying this principle to the facts in Dole, the Court concluded that South Dakota would not be violating anyone's constitutional rights by raising its drinking age to twenty-one, thereby rendering the federal statute a valid inducement under the Spending Clause.²⁶

B. First Amendment Forum Analysis

The First Amendment provides, "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ."²⁷ In Perry Education Ass'n v. Perry Local Educators' Ass'n,²⁸ the Supreme Court affirmed that while not all public property guarantees a forum for protected speech, the government's right to limit protected speech is sharply circumscribed when the venue for such speech is a public forum.²⁹ In that case, an educators' association challenged a school district's denial of access to the inter-school mail system when the same system was opened to a rival union officially recognized by the district.³⁰ Although it held that the inter-school mail system was not a public forum, the Court announced that the heightened level of scrutiny applies when speech is restricted in a public forum.³¹ The Court stated that the government may effectively enforce content-neutral prohibitions of expression in a public forum through the imposition of reasonable time, place, and manner restrictions, but it may regulate content in a public forum only if it asserts a compelling interest for the restriction, such restriction is necessary, and the restriction is narrowly tailored to serve the compelling state interest.³²

In Cornelius v. NAACP Legal Defense & Educational Fund, Inc.,³³ the Supreme Court clarified the distinctions it drew in Perry by holding that the level of protection granted to constitutionally protected speech on public property is dependent upon whether the property is a "traditional" or "designated" public forum, as opposed to a nonpublic forum.³⁴ In Cornelius the Combined Federal Campaign ("CFC"), a charitable fund supported by donations from federal employees, excluded political advocacy groups from participating as potential beneficiaries. The CFC limited its participants to charitable organizations, thereby excluding several pseudo-charitable outfits that were primarily advocacy groups. A group of legal defense funds and advocacy groups challenged their exclusion on the ground that they were denied their First Amendment rights to solicit charitable contributions.³⁵ In deciding that the CFC was not a public forum, and therefore not subject to heightened judicial scrutiny, the Court first applied its definition from Perry stating that traditional public fora are those which "'by long tradition or by government fiat have been devoted to assembly and debate.'"³⁶ The Court reasoned that the principal purpose of a traditional public forum is to promote the "free exchange of ideas," while the principal purpose of the CFC was to support charitable organizations.³⁷ The Court also stated that the government must make an affirmative choice to create a public forum to satisfy the definition of a designated public forum.³⁸ The Court reasoned, "The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse."³⁹ Because the CFC was designed as a forum of limited access, as opposed to general access, the Court concluded that the government did not intend to designate a public forum when it created the CFC.⁴⁰

The Court elaborated on the characteristics that constitute a traditional public forum in International Society for Krishna Consciousness, Inc. v. Lee.⁴¹ In that case, a religious organization challenged the constitutionality of a Port Authority regulation that prohibited the organization from soliciting donations inside an airport terminal.⁴² The Court, holding that airport terminals are not public fora, cited its decision in...