Perspective on American Library Association v. United States.

• Author: Kramer, Daniel C.
• Position: Perspectives: Federal Jurisprudence, State Autonomy

On May 31, 2002, a three-judge panel of the U.S. District Court for the Eastern District of Pennsylvania decided American Library Ass'n, Inc. v. United States. (1) The decision declared a 2001 measure of the United States Congress known as the Children's Internet Protection Act (CIPA) unconstitutional. (2) Under this act, public libraries that wished to participate in a program denominated "Erate"--under which libraries get subsidies for Internet access, or get aid under the Federal Museum and Library Services Act for purchasing computers--had to install filtering-software. The purpose of such software was to ensure that library patrons could not, when using the Internet, access visual depictions that were either obscene, child pornography, or (in the case of minors) harmful to minors. The American Library Association, various state and regional library associations, some website publishers, a few public library systems, and individuals who wanted to use their local library's computers to do research on the Internet sued to have the CIPA declared unconstitutional. One such individual was a sixteen-year-old girl who wanted to take advantage of the Internet to research issues relating to her sexual identity; another was a man who wanted to employ the computer to discover various ways in which his mother's breast could be reconstructed after surgery to combat cancer.

In a very lengthy opinion, the three-judge court agreed that the CIPA was unconstitutional. Writing the unanimous opinion was Edward R. Becker, Chief Judge of the Third Circuit Court of Appeals. Joining him were John P. Fullam and Harvey Bartle III, District Judges from the Eastern District of Pennsylvania. The court began its analysis with South Dakota v. Dole, (3) in which the Supreme Court sustained a federal highway grant-in-aid bill containing a clause that reduced highway funds going to states that allowed persons under twenty-one years of age to purchase alcoholic beverages. The American Library Ass'n court emphasized a part of Dole that admitted that Congress could not grant the states funds on the condition that the latter use them to engage in unconstitutional activities such as "the infliction of cruel and unusual punishment." (4) The Supreme Court said nothing explicitly about federal assistance that induced the states to violate the First Amendment, but Chief Judge Becker's opinion correctly assumed that federal boons awarded to states--including, of course, state or local agencies such as public libraries--that pushed the recipients to infringe the First Amendment's guarantees of freedom of speech, press, religion, etc., would be illegitimate for that reason. The question most of the opinion wrestled with, therefore, was whether a library's installation of filtering-software on the computers used by its patrons would violate the First Amendment.

The focus of this essay is not First Amendment law. Consequently, this essay will briefly summarize the reasons for the three-judge court's conclusion that public libraries' adherence to the CIPA's filtering-software requirement would cause them to infringe the First Amendment. Chief Judge Becker and his colleagues felt that when public libraries buy computers to enable their patrons to use the Internet they are creating a public forum analogous "to traditional public fora, such as sidewalks and parks, in which content-based restrictions on speech are always subject to strict scrutiny." (5) "Strict scrutiny" means that the restrictions on speech must serve a compelling governmental interest and must...