United States v. American Library Association
Congress May (Maybe) Impose Content-Based Restrictions on Internet Speech in Public Libraries: A Commentary on United States v. American Library Association, Inc.
In a 6-3 decision, the Supreme Court upheld the constitutionality of the Children's Internet Protection Act (CIPA), which requires public libraries receiving federal funds related to Internet access to install filtering devices on computer terminals that block a user's ability to view on-line child pornography, as well as obscene, pornographic, and other material that may be harmful to children. The Court reversed the judgment of the District Court that this content-based restriction on Internet speech was invalid on its face because available filtering devices "overblock" some constitutionally protected material, and thus do not meet the First Amendment's narrow tailoring requirement. The Chief Justice wrote an opinion for a plurality that included also Justices O'Connor, Scalia, and Thomas. Justices Kennedy and Breyer wrote separate concurrences, and Justices Stevens, Souter, and Ginsberg dissented.
At first blush, and despite the lack of agreement among the Justices on a rationale for the decision, this result appears to be a much-welcome sign for strong proponents of the First Amendment who believe that there is a constitutional balance to be struck between, on the one hand, reducing adults' free speech rights to what can be heard in the proverbial sandbox, and on the other, exposing children to the ever-widening and ever- more accessible body of developmentally inappropriate material that exists in the media and on the Internet. In a country where most children's media and Internet access goes unmonitored by supervising adults--primarily because there often are no responsible adults around to do this work--it is essential to empower the government to exercise its police and parens patriae powers to shield children in reasonable ways from this material. Indeed, from the standpoint of children's healthy emotional development, the government's ability to strike such a balance--that is, sometimes to fetter aspects of adults' speech rights to protect children--is arguably as important as its ability to enact compulsory education and child labor laws, despite their tendency to fetter aspects of adults' rights of free exercise and parental autonomy.
This result is also quite surprising, given the Court's most recent decisions rejecting Congressional attempts to restrict speech to protect children. In Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), the Court rejected a congressional effort to shield children from pornography on the Internet primarily on the grounds that the restriction, being broadly worded and relying on imprecise filtering tools, would capture too much constitutionally-protected speech. In United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000), the Court rejected another congressional effort to protect children from signal bleed from pornographic cable stations because the government had failed to show that it had a compelling interest in doing so, and because the restriction--by requiring adults to take affirmative measures if they wished to view pornography on cable television--imposed an excessive burden on adults' free speech rights.
These decisions can be distinguished from American Library Association in quite important ways, both factual and doctrinal. First, unlike the restrictions on speech at issue in ACLU and Playboy, which involved congressionally-imposed sanctions on the general dissemination of disapproved speech, and thus which clearly invoked the Court's strict scrutiny analysis, those in American Library Association are the result of congressional conditions on the spending of federal money. Second, the restrictions are imposed in the public libraries setting where content-based triage is an inherent part of the institutions' operations, and thus where the usual strict scrutiny review may not apply. (The Chief Justice and Justices O'Connor, Scalia, and Thomas took the position that "reasonableness" was all that was required in the circumstances.) Nevertheless, ACLU and Playboy both suggest the inconsistent jurisprudential principle that very few limits, if any, are appropriate to place on adults' access to First Amendment speech, even if these are designed to protect children. In addition, these cases emphasize that parents, and not other adults in the society, bear the constitutional burden of shielding children from any of that speech which might be found to be developmentally inappropriate.
As always, however, the devil remains in the details. And in this case, the essential (and likely fatal) details are that this was a facial and not an as-applied challenge to the statute, and that the Solicitor General "assured" the Court that if an adult wanted unfettered access to the Internet in a public library, he could ask to have the filters removed, and the library could remove them. Again, while no single opinion commanded a majority on the Court, at least five of the Justices who concurred in the judgment relied at least partly on this condition in reaching their decisions, and prophesied the possibility of a different result if the statute is not administered consistent with its terms. Justice Kennedy stated this position most strongly in his concurrence: The requirement for filtering software to protect children is constitutional "[i]f, on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay." On the other hand, he wrote, if, in practice, "some libraries do not have the capacity to unblock specific Web sites or to disable the filter or if it is shown that an adult user's election to view constitutionally protected Internet material is burdened in some other substantial way," the statute would properly be subject to an "as-applied challenge."
In reversing the decision of the District Court, the Supreme Court lifted the block that the lower court had placed on the statute's enforcement. And so today ushers in the period in which the statute's terms, modified by the Justices' sometimes explicit, sometimes implicit condition on the restriction's constitutionality, will be tested in the real world. Libraries that receive the relevant federal funds will have to install filtering devices on their Internet terminals if they have not already done so. Where these are functioning as intended, children will probably be shielded from much material that is developmentally inappropriate. Adults' right to access such materials will be correspondingly restricted, and thus, those adults who wish to view the Internet unfiltered will have to go elsewhere, or, they will have to jump through the hoop that is asking the library staff to "unblock specific Web sites or to disable the filter." If they do this, and if the library is able and willing to accede to this request, the restricted materials will again be available, not only to the adults who request them, but also to whomever happens to be in the terminals' sight line, including children. In other words, the statute in effect will protect children from pornography to the rudimentary extent the filtering technology allows, so long as adults are too uncomfortable or do not know to ask to have the technology disabled.
Probably most importantly, if a library does not or is unable for technological reasons to accede to the wishes of its adult patrons to release the blocked materials in a reasonable period of time--a matter about which the Justices appear more-than-ready to disagree--it is likely that the constitutionality of the statute will once again be challenged. Given the Court's rather clear dicta concerning this essential condition, together with the views of the three dissenting Justices, it is entirely predictable both that such a challenge will be brought, and that it would be successful. Thus, it is likely the case that even in the public libraries setting, we still are in search of a constitutional means to protect unsupervised children from developmentally inappropriate First Amendment speech.
The author, Doriane Lambelet Coleman, teaches at the Duke Law School, and specializes in children and the law. She has previously written about the implications for children of the Court's recent free speech decisions.
