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A Disappointing Day at the Supreme Court: Most Justices Seem Unconcerned About the Censorious and Irrational Operation of Internet Filters

(March 5, 2003) - Things did not go particularly well for libraries at oral argument in the Supreme Court today when the justices considered the constitutionality of the "Children's Internet Protection Act" (CIPA), which requires all libraries receiving e-rate discounts or other federal aid for Internet connections to install filters on all computers, for adults and minors alike. Despite overwhelming evidence of the broadly censorious and irrational operation of filters, as set forth in a detailed three-judge federal district court decision invalidating CIPA, the Supreme Court justices expressed little concern with the impact of the law on the nation's library patrons -- especially those on the wrong side of the digital divide, who do not have access to the unfiltered Internet at home, school, or work.

Justice Sandra Day O'Connor reflected the general tone of the argument in United States v. American Library Association when she asked attorney Paul Smith, representing the ALA, whether we shouldn't "make allowances" for technology that "isn't perfect," in the interest of blocking illegal material such as obscenity and child pornography. Only Justice David Souter noted that filters do not function in terms of legal categories like obscenity and child pornography; that filtering companies do not even disclose what they block; and that, because CIPA also requires blocking of material deemed "harmful to minors," mandating filters reduces adults to reading only what is considered fit for children.

Solicitor General Ted Olson, defending CIPA, repeatly insisted that Internet filtering is no different from discretionary selection decisions that librarians make every day. Olson even managed to turn the case upside down by asserting that the lower court decision deprives librarians of discretion because it holds that they cannot voluntarily choose to filter without violating the First Amendment rights of their patrons. No justice responded that filters give no discretion at all to librarians, but instead turn decisions about online access over to private profit-making companies which guard their algorithms and block lists as proprietary information.

Much of the oral argument was highly technical, revolving around legal concepts such as First Amendment "strict scrutiny" and the "public forum" doctrine. If anything is a "public forum," the Internet is, Paul Smith asserted. And when government restricts access to information or ideas in a public forum on the basis of their content, courts must apply strict scrutiny, which means the government must show that there is a compelling need for the restriction, and that the need cannot be met by "less restrictive" means. But Justices Scalia, Rehnquist, Breyer, O'Connor, and Kennedy all quarreled with Smith on this point, indicating their apparent desire to avoid strict scrutiny and thereby ease the government's burden in defending CIPA. Justice Breyer was concerned that if the Internet is a public forum, then strict scrutiny would also apply to filters in school libraries and classrooms. (Nobody deigned to suggest that students might also have a legitimate need for unfiltered Internet access.)

Justices O'Connor and Breyer indicated that they might adopt some form of "heightened" scrutiny for CIPA, if not exactly "strict." That would enable the Court to weigh Congress's asserted interest in not subsidizing public library patrons' access to pornography against the First Amendment harms caused by filters as well as the inconvenience to adults of having to go through a process of affirmatively requesting that filtering be disabled in order to complete a research project. (Under the e-rate provision of CIPA, adults can ask librarians to disable the filter "for bona fide research or other lawful purpose." Under the provision governing federal funding through the Library Services & Technology Act, both adults and minors can make such a request.)

There was no mention at the argument of "rational basis" scrutiny. But as the Partnership for Progress on the Digital Divide, the Gay Lesbian Straight Education Network, and six youth media groups argued in a friend-of-the-court brief written by FEPP, CIPA should not pass even this very lenient constitutional test. This is because the operation of filtering is irrational -- it relies primarily on key words and phrases and as a result misclassifies and blocks tens of thousands of valuable Web pages on subjects ranging from health and politics to jobs and civil rights.

The prospect of a government victory in this case and consequent mandatory Internet filters in the majority of American libraries is chilling. A few of the justices seemed to think that the disabling provisions would greatly ameliorate the problems caused by vast and irrational overblocking. Justice John Paul Stevens suggested that libraries could simply hire somebody to come in every day and request unblocking. Justices Souter and Ruth Bader Ginsberg seemed to be looking for a way to read the law to allow unfiltered Internet access to library staff.

Of course, one of the many anomalies of CIPA is that such unblocking would presumably allow access to obscenity, child pornography, and "harmful to minors" material -- the very categories that the law says must be blocked. And there was an air of unreality to this whole line of questioning, since most patrons probably will not request unblocking, and if they do, the administrative burdens on libraries processing such requests will be severe.

Seven years ago, many advocates were arguing that Internet filters were a "less restrictive alternative" to criminal laws banning "indecent" speech on the Internet. But some prescient ones opined that filters would actually be even worse. Despite the chilling tenor of the Supreme Court argument in US v. ALA, one hopes that at least five of the justices will come to the same conclusion.

Update: On June 23, 2003, the Supreme Court issued its decision, which upheld CIPA while minimizing the flaws of filters, and relied largely on the law's provision for librarians to dismantle the filters upon request for "bona fide research" purposes. See Ignoring the Irrationality of Internet Filters, the Supreme Court Upholds CIPA.

For more on CIPA and Internet filters, see:

Brief Amici Curiae of Partnership for Progress on the Digital Divide et al.

Book Banning in the 21st Century: What's At Stake in the CIPA Case

CIPA Bites the Dust

Fact Sheet on Internet Filters