CIPA Trial Closes; Decision Due in May

Final arguments in the case that will decide the constitutionality of the Children’s Internet Protection Act (CIPA) were heard on April 4 in the U.S. District Court for the Eastern District of Pennsylvania in Philadelphia. The legal challenge was brought by the American Library Association (ALA) -- together with 10 other plaintiffs -- and the American Civil Liberties Union (ACLU) (whose own legal challenge to the law was consolidated by the court and heard together with ALA’s case). Indications are that the panel of three judges will rule by early May.

Signed into law in 2000, CIPA requires the use of Internet filters for public and school libraries requesting government funding for the purpose of offering patrons access to the Internet. The purpose of the filters is to block out materials considered obscene, to be child pornography, or "harmful to minors." The law applies to libraries requesting Universal Service discounts, or "E-rate," for Internet access, Internet service, or internal connections. The law also includes libraries seeking Library Services and Technology Act (LSTA) funds to buy computers for Internet access or to pay for Internet access.

Jenner & Block attorney Theresa Chmara, legal counsel for ALA, is confident in the strength of her clients’ challenge. "We believe that the American Library Association presented the court with evidence demonstrating why the CIPA legislation is unconstitutional," she told BTW via e-mail. "Public libraries cannot fulfill the requirements of CIPA without also violating the constitutional rights of their patrons."

In its case, ALA argued that mandated filtering is unconstitutional because no filter can guarantee the absolute blocking of illegal material, nor is there any certitude that filtering won’t inadvertently block legal materials while allowing the library patron to view something that is illegal.

Prior to the case, in a March 19, 2002, BTW article Chmara explained that "[n]one of the filters can discern between what is legal and non-legal material. They block on their own type of categories, and there is a vast amount of over-blocking," and under-blocking. Since one of the missions of the library is to provide "unfettered access" to constitutionally protected information, the plaintiffs contend, it is more than likely that, inevitably, filters will hinder a person’s legal right to such information.

On the other hand, the government argued that CIPA does not hinder a library patron’s to free speech since it does not impose any penalty for disseminating or receiving speech that falls within those categories deemed "prohibited." Moreover, the enforcement of CIPA is only for libraries seeking government funding -- if a library does not need government funding, it does not need to comply with CIPA.

This latter point might be the key to the government’s defense. As Wired News reported April 3, 2002, the Supreme Court has a more "relaxed view of speech that’s tied to funding…. In the 1998 case of NEA v. Finley, the justices ruled…that a law requiring the National Endowment for the Arts to follow ‘general standards of decency and respect’ when handing out grants was constitutional."

But according to the plaintiffs, almost every public library needs Internet funding. "Not taking the funds is not an option for libraries," Chmara said in the March 19 BTW article. "[Public libraries] need the funds if they want to offer Internet access. To limit that is harmful."

Aside from the ACLU and ALA, other plaintiffs in the legal challenge to CIPA included the Freedom to Read Foundation and a number of state library associations. The U.S. Department of Justice argued the case for the government. -- David Grogan