TCS Daily

Where Obscenity Meets Speech

By Eugene Volokh - June 6, 2002 12:00 AM

Last Friday, a three-judge district court (in American Library Association v. United States) held that the federal Child Internet Protection Act violates the First Amendment. CIPA required public libraries to filter Internet access as a condition of getting federal funds.

What Does This Decision Mean?

1. The court held that under the First Amendment, public libraries, whether or not funded by the federal government, may not filter access for adults.

True, the case only involved a condition attached to a federal subsidy program. But the court reasoned that this condition was constitutional only if the local libraries themselves had the power to filter their patrons' access. The court therefore had to decide whether local libraries had this power, and it concluded that they didn't.

2. The court did not resolve whether public libraries or school libraries could filter access for children (see pp. 130-131 of the decision, and footnote 32). There are good arguments for treating children's access differently from adults' access, but the court didn't resolve them, so they'll have to await future litigation.

3. The case is headed for the Supreme Court, which will almost certainly rehear it (assuming the government chooses to appeal, which is likely).

Most cases start out in front of a one-judge federal trial court, and can then be appealed to a three-judge federal appellate court. The Supreme Court may then be asked, using a so-called "petition for certiorari," to rehear the case -- but the Court is under no obligation to do so, and can just ignore the case, without making any decision about its merits. In fact, the Court agrees to hear only about 1% of all cases for which a petition for certiorari is filed.

This case is different. The statute here provides for an initial decision by a three-judge federal trial court -- this is the decision that just came down -- and then an appeal directly to the Supreme Court.

The Supreme Court must consider the appeal. It can just affirm the lower court decision without giving any reasons (a so-called "summary affirmance") but it has to consider the merits of the case to do so. And in a situation like this one, where the lower court struck down a federal statute, it's highly unlikely that the Supreme Court will agree in a one-line opinion.

4. For now, the federal government is ordered not to enforce CIPA.

What about public libraries, which are virtually all run by state governments? May they continue filtering adult access, or must they stop?

The court didn't issue any such order. Moreover, its decision isn't even binding precedent for state agencies in any part of the country, since only appellate courts can set binding precedent.

But the decision, handed down by a unanimous panel of three federal judges, is probably going to be persuasive to many lower courts. A previous decision, by one federal judge deciding Mainstream Loudoun v. Loudoun County Library (1998), had already ordered one local library to abandon its adult Internet filtering policy. The new decision should further increase the chances that courts will issue more such injunctions against local policies.

And many libraries probably will therefore just refrain from filtering adult access in the first place, in order to avoid getting sued.

What Were the Court's Reasons?

1. Libraries, the court held, are like the post office, or the public streets -- though they are owned and subsidized by the government (the post office certainly used to be substantially subsidized, as to certain classes of mail), they are presumptively "open[ed] . . . for virtually unrestricted use by the general public for speech on a virtually unrestricted range of topics" (p. 95).

This, the court reasoned, makes them "designated public fora," which the government cannot selectively deny to particular kinds of constitutionally protected speech that the government dislikes. Just like the government can't say "We'll carry all sorts of mail, but not Communist advocacy," or "We'll allow all parades on this street, but no racist demonstrations," so the government can't say "We'll provide access to the entire Internet, but not this list of sites" (at least unless the sites contain constitutionally unprotected information).

The court's argument here is plausible, and it's consistent with the Supreme Court's precedents, though not completely dictated by them. It also explains why libraries are still free to select which books they'll buy but not which Internet sites they'll block.

The decision about which books to buy, the court said, is necessarily a selective decision, in which only a small fraction of all possible books are chosen (based on quality, topicality, accuracy, and so on). It's not a situation where "the government opens a forum for virtually unrestricted use by the general public for speech on a virtually unrestricted range of topics"; a library's possible collection is, sadly, all too restricted. But the decision to provide Internet access is generally a decision to provide a vast range of material, without any up-front selection -- except for the prohibited selection process of choosing which material to then exclude.

Now one reasonable response is that this is the government's money, so we can spend it as we see fit. But the Court has in considerable measure retreated from this, at least as to public fora. And given that the government (federal, state, and local) consumes 35% of the GNP, I think it makes sense to read the Constitution as applying to this awesome spending power as well as to the government's power to enforce criminal or tort law.

2. What about the government's power to suppress constitutionally unprotected speech, such as obscenity or child pornography? The court acknowledged that in principle the government may try to do this, for instance by evicting patrons who seem to be accessing obscene material (more on this below).

But the court said that filtering adult access is an unacceptable means of serving this end, because all filters are imperfect: They block some material that proves to be fully constitutionally protected. "[I]t is the government's burden . . . to show the existence of a filtering technology that . . . avoids overblocking a substantial amount of constitutionally protected speech" (p. 122). And the government failed to satisfy this burden, because no such perfect or even near-perfect filtering technology exists.

3. Finally -- and here I think the court was least persuasive -- the government had other "less restrictive alternatives that further the government's legitimate interests" in preventing computers from being used to access obscenity and child pornography (p. 126). Instead of filtering, a library can "adopt Internet use policies," "requir[e] patrons to . . . agree[] to comply with the policy," and then enforce the policies "either through direct observation" (the "tap-on-the-shoulder" approach) or "through review of the library's Internet use logs" (pp. 127-128). But despite the court's argument, I believe these policies will prove to be highly ineffective -- they will not further the government's interests anywhere nearly as effectively as the filters, with all their flaws, would.

In my view, the court is at its strongest when it argues that library filtering is unconstitutional simply because it blocks too much material. Even if filtering is the most effective way of preventing access to child pornography and obscenity, and the alternatives are not nearly as effective, that may just be the price that we must pay to get free speech. I wish the court had just grabbed the bull by the horns and said that this was so, rather than hiding behind what in my view are unpersuasive claims that the government can essentially have it both ways that it can enforce obscenity and child pornography laws with maximal effectiveness and avoid the overblocking caused by filtering.

But in any event, the result of the court's reasoning is that filtering, at least of adult access, is unconstitutional -- at least until the Supreme Court revisits the question, probably by early July of 2003.

The CyberLaw Maven is Eugene Volokh, a professor at UCLA School of Law. He has written extensively on free speech law and cyberspace law matters, and is the coauthor, with Larry Lessig and David Post, of a forthcoming book on cyberspace law for non-lawyers. Before going into teaching, he clerked for Ninth Circuit Judge Alex Kozinski and for Justice Sandra Day O'Connor. Before that, he worked for 12 years as a computer programmer, and is still a partner in a small software company that he cofounded (a company that has nothing to do with the Internet or with libraries). Check out Eugene Volokh's continuing commentary on cyberspace, law, and other matters here.

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