ALA Files Response to Government's Appeal in CIPA Case

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Arguments to Be Heard in the Supreme Court on March 5

The American Library Association's (ALA) and American Civil Liberties Union's (ACLU) legal challenge of a federal library filtering law, which will be heard by the Supreme Court in March, continues. On Monday, February 10, ALA and the ACLU filed their response to the U.S. government's brief appealing a lower court's ruling that the Children's Internet Protection Act (CIPA) is unconstitutional. Two days later, a broad coalition of organizations representing publishers, booksellers, and authors, among others, led by the Association of American Publishers (AAP) and the American Booksellers Foundation for Free Expression (ABFFE), filed an amicus brief in support of ALA and ACLU.

In their amicus brief, the groups contend that CIPA is "analogous to the scissoring by a government contractor of important articles from a magazine to which the library subscribes and to which library patrons expect full access."

CIPA would require public libraries seeking government subsidies to install filtering software to block materials considered obscene, child pornography, or "harmful to minors." The law would apply to libraries requesting Universal Service discounts, or "E-rate," for Internet access, Internet service, or internal connections. The law's provisions also cover libraries seeking Library Services and Technology Act (LSTA) funds to buy computers for Internet access or to pay for Internet access.

According to the ALA, almost every public library in the United States needs Internet funding. In fact, over the past three years, more than $190 million has been disbursed to more than 5,000 public libraries through the federal E-rate program, as previously reported in BTW [].

The plaintiffs believe that CIPA is unconstitutional because filters cannot guarantee the absolute blocking of illegal material, nor can it guarantee that it won't inadvertently block legal materials. On May 31, 2002, a panel of three judges of the U.S. District Court for the Eastern District of Pennsylvania agreed with the plaintiffs and declared CIPA to be "facially invalid."

On June 20, the United States government filed a notice of appeal to the U.S. Supreme Court challenging the ruling, and submitted their brief to the court on January 10, 2003. The government is arguing that the federal court applied the wrong standard of review in its decision in May, and it notes that what librarians make available for patrons is not subject to strict constitutional judgment.

In its brief, the government wrote: "Public libraries have broad discretion to decide what material to add to their collections, and the use of filtering software to block access to online pornography falls well within the permissible limits of that discretion…. Libraries collect material from the Internet for the same reasons that they collect books and other resources, and they therefore need the same degree of discretion to make judgments regarding what material to collect. Thus, just as public libraries have broad discretion to exclude pornography from their print collections, they have broad discretion to exclude pornography from their Internet collections."

ALA and ACLU argued in their response that that there is "no valid analogy between filtering Internet access and the inevitable content-based choices a library makes when it acquires materials for its physical collection."

"Making the Internet available is a different animal than deciding if a book is available," said Jonathan Bloom, an attorney for Weil, Gotshal & Manges, legal counsel for amici. "This law that mandates filters … takes away the discretion of librarians to set their own standards."

Judith Platt, director of publicity for AAP, echoed Bloom's comments. "CIPA takes away the decision from the local community and deprives the library of the ability to determine their own appropriate guidelines for Internet usage for their community," she said, "and it gives these decisions to third parties -- the software filtering companies."

The U.S. Supreme Court is scheduled to hear arguments on March 5, and a decision by the Court is expected at the end of June 2003.

The groups that filed the amicus brief are: AAP; ABFFE; American Society of Journalists and Authors; American Society of Newspaper Editors; Authors Guild, Inc.; Center for Democracy and Technology; Comic Book Legal Defense Fund: Magazine Publishers of America; National Writer's Union; Publishers Marketing Association; PEN American Center; and Society of Professional Journalists in Support of Appellees. --David Grogan