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Mandatory Internet Filtering in Public Libraries

Permanent Link: http://ufdc.ufl.edu/UFE0021600/00001

Material Information

Title: Mandatory Internet Filtering in Public Libraries The Disconnect Between Law and Technology
Physical Description: 1 online resource (395 p.)
Language: english
Creator: Smith, Barbara
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2009

Subjects

Subjects / Keywords: amendment, child, children, cipa, congress, constitutional, court, electronic, filter, first, harm, indecency, indecent, internet, legislation, libraries, library, media, minor, minors, obscene, pornography, public, regulations, speech, supreme
Journalism and Communications -- Dissertations, Academic -- UF
Genre: Mass Communication thesis, Ph.D.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Abstract: Mandatory Internet Filtering in Public Libraries: The Disconnect Between Law and Technology The Children's Internet Protection Act of 2000 requires public libraries receiving certain types of federal funding to install filtering software or another 'technology protection measure' on all computers connected to the Internet. The Children's Internet Protection Act (CIPA) prohibits access to three types of content: 1) 'visual depictions' that are obscene; 2) 'visual depictions' that involve child pornography; and 3) to any person under the age of 17, 'visual depictions' that are considered 'harmful to minors.' In 2002, a federal district court held that the Children's Internet Protection Act was unconstitutional, a ruling that the Supreme Court reversed, in 2003, in United States v. American Library Association. The Children's Internet Protection Act has significant implications on the role that public libraries play in providing patrons with access to information. The purposes of this dissertation are to 1) further public understanding of the role of the public library; 2) analyze the legal and practical aspects of implementing mandatory Internet filtering in public libraries; and 3) determine if the CIPA is capable of doing what Congress is asking of it. In this dissertation, the author will use First Amendment theory and the mission and role of the American public library to examine the Children's Internet Protection Act and the two court decisions reviewing the CIPA. The author of this study will trace the legislative history of the Children's Internet Protection Act of 2000 and its predecessors to try to determine whether the CIPA can do what Congress expected of it. The author will analyze studies on the strengths and limitations of Internet filtering and the implications of mandatory filtering on the librarian's role and on patrons' access to information in public libraries.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Barbara Smith.
Thesis: Thesis (Ph.D.)--University of Florida, 2009.
Local: Adviser: Chamberlin, William F.
Electronic Access: RESTRICTED TO UF STUDENTS, STAFF, FACULTY, AND ON-CAMPUS USE UNTIL 2011-12-31

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2009
System ID: UFE0021600:00001

Permanent Link: http://ufdc.ufl.edu/UFE0021600/00001

Material Information

Title: Mandatory Internet Filtering in Public Libraries The Disconnect Between Law and Technology
Physical Description: 1 online resource (395 p.)
Language: english
Creator: Smith, Barbara
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2009

Subjects

Subjects / Keywords: amendment, child, children, cipa, congress, constitutional, court, electronic, filter, first, harm, indecency, indecent, internet, legislation, libraries, library, media, minor, minors, obscene, pornography, public, regulations, speech, supreme
Journalism and Communications -- Dissertations, Academic -- UF
Genre: Mass Communication thesis, Ph.D.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Abstract: Mandatory Internet Filtering in Public Libraries: The Disconnect Between Law and Technology The Children's Internet Protection Act of 2000 requires public libraries receiving certain types of federal funding to install filtering software or another 'technology protection measure' on all computers connected to the Internet. The Children's Internet Protection Act (CIPA) prohibits access to three types of content: 1) 'visual depictions' that are obscene; 2) 'visual depictions' that involve child pornography; and 3) to any person under the age of 17, 'visual depictions' that are considered 'harmful to minors.' In 2002, a federal district court held that the Children's Internet Protection Act was unconstitutional, a ruling that the Supreme Court reversed, in 2003, in United States v. American Library Association. The Children's Internet Protection Act has significant implications on the role that public libraries play in providing patrons with access to information. The purposes of this dissertation are to 1) further public understanding of the role of the public library; 2) analyze the legal and practical aspects of implementing mandatory Internet filtering in public libraries; and 3) determine if the CIPA is capable of doing what Congress is asking of it. In this dissertation, the author will use First Amendment theory and the mission and role of the American public library to examine the Children's Internet Protection Act and the two court decisions reviewing the CIPA. The author of this study will trace the legislative history of the Children's Internet Protection Act of 2000 and its predecessors to try to determine whether the CIPA can do what Congress expected of it. The author will analyze studies on the strengths and limitations of Internet filtering and the implications of mandatory filtering on the librarian's role and on patrons' access to information in public libraries.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Barbara Smith.
Thesis: Thesis (Ph.D.)--University of Florida, 2009.
Local: Adviser: Chamberlin, William F.
Electronic Access: RESTRICTED TO UF STUDENTS, STAFF, FACULTY, AND ON-CAMPUS USE UNTIL 2011-12-31

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2009
System ID: UFE0021600:00001


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MANDATORY INTERNET FILTERING IN PUBLIC LIBRARIES: THE DISCONNECT BETWEEN LAW AND TECHNOLOGY By BARBARA H. SMITH A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLOR IDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 2009 1

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2009 Barbara H. Smith 2

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I dedicate this dissertation to my Mom, Dorothy Marie Butterw orth Smith, who contributed the most to my success as a human being with her unconditional love, ongoing support and daily inspiration. 3

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ACKNOWLEDGMENTS I would like to thank Professor Bill F. Cham berlin, Eminent Scholar Emeritus in Mass Communications, and chairman of my dissertation committee, for his wisdom, steadfast support, encouragement and patience as I prepared this disserta tion. I also would like to thank my other committee members for their helpful insights: Pr ofessor Laurence Alexander, Professor Charles Collier and Professor John W. Wrig ht. In addition, I would like to thank colleagues and friends for their ongoing support during the dissertation process, especially Stuart Blacklaw, Fred Brock, Tom Caswell, Irina Dmitrieva, Rick Donnelly, T ony Fargo, Jennifer Freer, Martin Halstuk, Jody Hedge, Michael Hoefges, Kimberly Lauffer, Ch ristina Locke, Charles Lubbers and Michelle OMalley and Steve Smethers. Finally, I owe sp ecial thanks to Dorothy Marie Butterworth Smith, my mother, my friend, my role model a nd my beacon in the night, for her continued support throughout the dissertation process, and for her inspiration a nd unconditional love throughout my life. 4

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TABLE OF CONTENTS page ACKNOWLEDGMENTS ............................................................................................................... 4 ABSTRACT ...................................................................................................................... ...............8 CHAPTER 1 INTERNET ACCESS IN PUBLIC LIBRARIES ...................................................................10 Introduction .................................................................................................................. ...........10 Relevance of Study ..........................................................................................................19 Research Questions .........................................................................................................19 Contributions to the Field ................................................................................................20 Theoretical Framework ...................................................................................................20 Review of the Literature .........................................................................................................21 The Childrens Internet Protection Act of 2000 ..............................................................22 Relevant Articles Before the CIPA Was Adopted ..........................................................34 Methodology ................................................................................................................... ........38 Outline of Dissertation ....................................................................................................... .....41 2 THE PUBLIC LIBRARY AND THE FIRST AMENDMENT .............................................44 Introduction .................................................................................................................. ...........44 The Mission and Role of the Public Library ..........................................................................46 The Applicability of Public Forum and th e Right to Receive Doctrines to Public Libraries ..............................................................................................................................56 Case AnalysisThe Application of Public Forum and Right to Receive Information Doctrines to Public Libraries ...................................................................59 Case AnalysisHistorical Overview of the Right to Receive Ideas and Information ...77 Commentator Analysis on P ublic Forum Doctrine .........................................................93 The Public Library as a Tr aditional Public Forum ..........................................................93 The Public Library as a Desi gnated/Limited Public Forum ............................................94 The Public Library as a Nonpublic Forum ......................................................................96 The Public Library as Mixture of Fora ............................................................................96 The Inapplicability of Public Foru m Doctrine to P ublic Libraries ..................................98 Commentator Analysis on the Right to Receive Ideas and Information Doctrine ........101 First Amendmen t Theory ......................................................................................................10 4 Minors Access to Public Library Material ..........................................................................110 Conclusion .................................................................................................................... ........118 3 INTERNET FILTERING TECHNOLOGY .........................................................................120 Introduction .................................................................................................................. .........120 History of Internet Technology ............................................................................................121 Internet Content and Usage ..................................................................................................124 5

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How Filtering Technology Works ........................................................................................129 Internet Filtering in Public Libraries ....................................................................................135 Filtering Software Studies .................................................................................................... 138 Conclusion .................................................................................................................... ........152 4 THE PROTECTION OF MINORS FROM MATERIAL DEEMED HARMFUL ..............155 Introduction .................................................................................................................. .........155 The Changing View of the Child ..........................................................................................156 The Parental Role in Childrearing ........................................................................................165 Sexually Explicit Mate rial and the Law ...............................................................................170 Children, the Variable Obscenity Standard and Indecency ..................................................174 Social Science Research on th e Effects of Pornography ......................................................184 Pornography and the Third Person Effect Theory ................................................................195 Pornography and Children ....................................................................................................196 Conclusion .................................................................................................................... ........199 5 FEDERAL ATTEMPTS AT PROTECTI NG MINORS FROM ONLINE MATERIAL DEEMED HARMFUL .........................................................................................................201 Introduction .................................................................................................................. .........201 Communications Decency Act of 1996 ................................................................................202 Child Online Protection Act of 1998 ....................................................................................209 Round 1: U.S. District Court for the Eastern District of Pennsylvania ............214 Round 2: U.S. District Court for the Eastern District of Pennsylvania ............215 Round 3: Third Circuit of the U.S. Court of Appeals ......................................216 Round 4: U.S. Supreme Court ..........................................................................218 Round 5: Third Circuit of the U.S. Court of Appeals ......................................221 Round 6: U.S. Supreme Court ..........................................................................223 Round 7: U.S. District Court for the Eastern District of Pennsylvania ............228 Conclusion .................................................................................................................... ........230 6 THE LEGISLATIVE HISTORY OF THE CHILDRENS INTERNET PROTECTION ACT ......................................................................................................................................232 Introduction .................................................................................................................. .........232 The Emergence of the Childrens Internet Protection Act ...................................................238 Proposed Legislation in 1998 ........................................................................................241 Proposed Legislation in 1999 ........................................................................................255 Proposed Legislation in 2000 ........................................................................................273 The Enactment of Mandatory Filtering Legislation in 2000 ................................................276 The McCain Amendment ..............................................................................................277 The Santorum Amendment ............................................................................................280 The Final Legislation .....................................................................................................281 Conclusion .................................................................................................................... ........285 6

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7 COURT DECISIONS ON THE CHILDRENS INTERNET PROTECTION ACT ...........287 Introduction .................................................................................................................. .........287 Federal District Court Holds the CIPA Unconstitutional .....................................................287 Role of Public Libraries .................................................................................................289 The Use of Filtering Technology ..................................................................................289 The First Amendment and Public Forum Doctrine .......................................................292 Congress Spending Clause and Unc onstitutional Conditions Doctrine .......................301 Supreme Court Upholds the CIPA .......................................................................................306 The Use of Filtering Technology ..................................................................................308 The Congressional Spending Clause .............................................................................309 The First Amendment and Public Forum Doctrine .......................................................312 Concurrences .................................................................................................................3 14 Dissents ...................................................................................................................... ....317 Conclusion .................................................................................................................... ........327 8 BRIDGING THE GAP BETWEEN LAW AND TECHNOLOGY .....................................329 Introduction .................................................................................................................. .........329 The First Amendment Right to Receive Informa tion and the Role of the Public Library ...331 Internet Filtering a nd Public Libraries ..................................................................................341 The Supreme Court, the Protection of Minors, and Competing Interests ............................348 Suggestions for Future Research ..........................................................................................359 Conclusion .................................................................................................................... ........361 LIST OF REFERENCES .............................................................................................................366 Government Statutes & Reports ...........................................................................................366 Regulatory Agency Materials ...............................................................................................369 Letters ....................................................................................................................... ............370 Principal Cases ......................................................................................................................370 Secondary References .......................................................................................................... .374 BIOGRAPHICAL SKETCH .......................................................................................................395 7

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Abstract of Dissertation Pres ented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy MANDATORY INTERNET FILTERING IN PUBLIC LIBRARIES: THE DISCONNECT BETWEEN LAW AND TECHNOLOGY By Barbara H. Smith December 2009 Chair: Bill F. Chamberlin Major: Journalism and Mass Communication The Childrens Internet Protection Act of 2000 requires public librari es receiving certain types of federal funding to instal l filtering software or another technology protection measure on all computers connected to the Internet. The Childrens Internet Protection Act (CIPA) prohibits access to three types of content: 1) visual depictio ns that are obscene; 2) visual depictions that involve child pornography; and 3) to any pe rson under the age of 17, visual depictions that are considered harmful to minor s. In 2002, a federal district court held that the Childrens Internet Protection Act was unconsti tutional, a ruling that the Supreme Court reversed, in 2003, in United States v. American Library Association The Childrens Internet Protection Act has signi ficant implications on the role that public libraries play in providing patrons with access to information. The purposes of this dissertation are to 1) further public understa nding of the role of the public library; 2) analyze the legal and practical aspects of implementing mandatory Inte rnet filtering in public libraries; and 3) determine if the CIPA is capable of doing what Congress is asking of it. In this dissertation, the author will use Fi rst Amendment theory and the mission and role of the American public library to examine the Childrens Internet Protection Act and the two court decisions reviewing the CIPA. The author of this study will trace the legislative history of 8

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9 the Childrens Internet Protection Act of 2000 and its predecessors to try to determine whether the CIPA can do what Congress expected of it. The author will analyze studies on the strengths and limitations of Internet filtering and the implications of mandatory filtering on the librarians role and on patrons access to in formation in public libraries.

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CHAPTER 1 INTERNET ACCESS IN PUBLIC LIBRARIES Introduction Nearly 99% of public libraries in the United St ates offered Internet access to the public in 2008.1 That percentage contrasts with 25% in 1997,2 73% in 1998,3 and 95% in 2000, 4 the year that Congress enacted the Child rens Internet Protection Act.5 From 2006 to 2008, in-person visits to public libraries increased by 10%, with 8% of patrons visiti ng the library to gain Internet access.6 To receive federal funding7 for Internet access, the Childre ns Internet Protection Act of 1 From 2006 to 2008, libraries providing Internet access remained constant at just under 99%. See AM. LIBRARY ASSN, THE STATE OF AMERICAN LIBRARIES 5 (April 2007) and JOHN CARLO BERTOT, CHARLES R. MCCLURE, ET AL., FLORIDA STATE UNIVERSITY INFORMATION INSTITUTE, PUBLIC LIBRARIES AND THE INTERNET 2008: STUDY RESULTS AND FINDINGS (2008). In fiscal year 2006, the latest year for which data are available, there were 9,208 public library systems or administrative units, and 16,592 central library outlets and branch library outlets in the fifty states and the District of Columbia. See INSTITUTE OF MUSEUM AND LIBRARY SERVICES, PUBLIC LIBRARIES SURVEY: FISCAL YEAR 2006 4 (2008). 2 THE STATE OF AMERICAN LIBRARIES (2007), supra note 1, at 5. 3 Press Release, Am. Library Assn, New Report Shows More Libraries Connect to the Internet; Access Still Limited (Nov. 17, 1998), available at http://bubl.ac.uk/archive/journals/alawon/v07n149.htm The survey of library connectivity was conducted by John Carlo Bertot, associate professor in the School of Information Science and Policy at the University of Albany, State University of New York, and Charles R. McClure, distinguished professor formerly in the School of Information Studies at Syracuse (N.Y.) University and now a distinguished professor in the School of Information Studie s at Florida State University. 4 Of the 9,129 public library systems, 7,352 were single-outlet libraries, 1,776 were multiple-outlet libraries, and one had no public-service outlets (providing books-by-mail service only). The number of library systems or administrative units encompassed a total of 16,241 buildings, including central and branch locations. ADRIENNE CHUTE ET AL., U.S. DEPT OF EDUC., NATIONAL CENTER FOR EDUCATION STATISTICS, PUBLIC LIBRARIES IN THE UNITED STATES: FISCAL YEAR 2001 NCES 20039 (2003), available at http://nces.ed.gov/pubs2003/2003399.pdf 5 See infra Chapter 6, pp. 281 to 286, and Chapter 7 for a complete discussion of the Childrens Internet Protection Act of 2000. 6 See AM. LIBRARY ASSN, THE STATE OF AMERICAN LIBRARIES 4 (April 2009). The report did not include raw numbers. 7 For an explanation of the two programsthe Library Services Technology Act and the universal service program, also known as the E-rate see infra notes 36 to 41 and accompanying text. 10

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20008 requires that public libraries and most schools implement an Internet safety policy and install a technology protection measure, such as blocking or filtering software, on all computers connected to the Internet to block or filter sexua lly explicit images.9 The safety policy requires libraries and schools to monitor minors online activities and to monitor the operation of a technology protection measure.10 As of 2009, the only technology protection measure available was blocking and filtering software.11 Blocking and filtering software operate differently, even though software designers usually combine the two programs into one package. Blocking software and filtering software 8 Pub. L. No. 106-554, signed into law on Dec. 21, 2000, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 20 U.S.C. 9134(f) (2000) and 47 U.S.C. 254(h) (2000)). In passing the Childrens Internet Protection Act, Congress added two different amendments to the appropriations bill, the Childrens Internet Protection Act and the Neighborhood Childrens Internet Protection Act. Dept of Labor, Health & Human Servs. & Educ. Appropriations Act, 2001, H.R. 4577, 106 Cong., 2d Sess. (2000), Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 20 U.S.C. 9134(f) and 47 U.S.C. 254(h)). The Childrens Internet Protection Act was sponsored by Senator John McCain. See S.Amdt. No. 3610 to H.R.4577, 106th Cong. (2d Sess. 2000). The text of Senator McCains amendment to the Consolidated Appropriations Act was based on S.97, the Childrens Internet Protection Act, that McCain introduced in 1999. See S.97, 106th Cong. (1st Sess. 1999). The Neighborhood Childrens Internet Protection Act was sponsored by Senator Rick Santorum. See Neighborhood Childrens Internet Protection Act, S.Amdt. No. 3635 to H.R.4577, Consol. Appropriations Act, 2001, 106th Cong. (2d Sess. 2000). The text of Senator Rick Santorums amendment was based on S.1545, the Neighborhood Childrens Internet Protection Act, which he had introduced in 1999 ( see S.1545, 106th Cong. (1st Sess. 1999)). After the appropriations bill passed, Congress referred to both Internet protection acts as the Childrens Internet Protection Act. For an analysis of McCains and Santorums bills an d the court cases on the Childrens Internet Protection Act, see Chapter 6. 9 See Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 20 U.S.C. 9134(f), 47 U.S.C. 254(h)(6)), mandating that a blocking technology measure be installed on any computer connected to the Internet at libraries receiving E-rate funding and Librar y Services and Technology Act (LSTA) funding. 10 20 U.S.C. 9134(f)(1)(A) and (B), 47 U.S.C. 254(h)( 5)(A) and 47 U.S.C. 4(h)(6)(A). The Internet safety policy applies only to minors and not to adults. The safety policy includes monitoring the online activities of minors and the operation of a technology protection measure with respect to any [library or school] computers with Internet access that protects against access through such com puters to visual depictions that are obscene, child pornography, or harmful to minors. The Internet safe ty policy must address minor s access to inappropriate matter on the Internet and measures designed to rest rict minors' access to materials harmful to minors. The Internet safety policy also must address minors safety and security when using e-mail, chat rooms, and other forms of direct communications. The Internet safety polic y also must address minors unauthorized access to the Internet, including hacking, and minors unauthorized use of personal information regarding minors. Libraries and schools must provide reasonable public notice and hold at least one public hearing or meeting to address the Internet safety policy. 47 U.S.C. 254 (l) (1). For a more detailed discussion of the Childrens Internet Protection Act, see infra Chapter 6, pp. 281-286, and Chapter 7. 11 For a discussion of filtering technolo gy, terminology, strengths and limitations, see Chapter 3. 11

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are both installed on the users computer and allo w the user, such as a parent, to choose which types of content to avoid. Bloc king software prevents access to specific Web sites, such as playboy.com, and to other types of Internet applications, such as social networking sites, chat rooms and e-mail. In contrast, filtering software prevents access to Web sites based on key words or rating systems,12 or allows access to a pre-selected list of Web sites only.13 Although blocking and software technologies operate differently, the terms filter, fil ters, filtering, and blocking often are used interchangeably by so ftware manufacturers, co mmentators and courts. Therefore, to avoid confusion and to improve sentence clarity, the author of this dissertation will use the term filters an d filtering in referring to both blocking and filtering technology when discussing the function of the soft ware as a whole. When the two terms need to be differentiated, such as in Chapter 3 on filteri ng technology, the author will do so. Congress tacked the filtering legisla tion onto a major appropriations bill14 that President Bill Clinton reluctantly signed into law in 2000.15 The law combined the Childrens Internet Protection Act and the Neighborhood Ch ildrens Internet Protection Act.16 The federal filtering 12 See Childrens Internet Protection Act, Report of the Senate Committee on Commerce, Science and Transportation on S.97, S. Rep. No. 106-141 106th Cong. (1st Sess. 1999), Aug. 5, 1999, at 6. See Chapter 6 for a discussion of hearings and reports on the Childrens Internet Protection Act. 13 See Richard J. Peltz, Use the Filter You Were Born With: Th e Unconstitutionality of Mandatory Internet Filtering for the Adult Patrons of Public Libraries, 77 WASH. L. REV. 397, 404 (2002); see also Adam Horowitz, The Constitutionality of the Childrens Internet Protection Act, 13 ST. THOMAS L. REV. 425, 429-35 (2000). 14 H.R. 4577, 106th Cong. (2d Sess. 2000). 15 Pub. L. No. 106-554, signed into law on Dec. 21, 2000. President Clinton said he was very disappointed that Congress passed the CIPA. He said that while his Administration actively promoted the protection of children from harmful materials on the Internet, a local Internet-usage plan was more appropriate and effective. See Statement on Signing the Consolidated Appropriations Act, FY 2001, 36 WEEKLY COMP. PRES. DOC. 52 3171-72 (Dec. 29, 2000). 16 CIPA, Pub. L. No. 106-554, 1(a)(4), 114 Stat. 2763, 2763 (2000). On the day Congress passed the CIPA, the Act was copied into 1701-1741 of H.R. 5666, 106th Cong. (2d Sess. 2000), which in turn was added as Appendix D, including CIPA, 1701-1741, 114 Stat. 2763A-336 to -351, to H.R. 4577, 106th Cong. (2d session 2000), the final omnibus budget bill. CIPA's provisions were enacted at 20 U.S.C. 9134 (2000) and 47 U.S.C. 254 (Supp. 2001). See also Neighborhood Children's Internet Protection Act, Pub. L. No. 106-554, app. D, 1731-1741, 114 Stat. 2763A350 to -351 (2000). 12

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law was to have become effective on April 20, 2001, but the American Civil Liberties Union (ACLU) and the American Library Association (ALA) independently filed suit to block its implementation.17 A federal district court consolidated the cases, and in 2002 held that the challenged sections of the Childrens Internet Protection Act were unconstitutional,18 a ruling that the Supreme Cour t reversed in 2003.19 However, the Court ruled that the CIPA could be challenged on an as applied basis,20 which would allow a library patron to file a lawsuit alleging that the law was improperly administ ered under a specific set of circumstances.21 In this dissertation, the author will use Fi rst Amendment theory and the mission and role of the American public library to examine the Childrens Internet Protection Act and the two court decisions reviewing the CIPA. The author will discuss three compelling and sometimes competing government interests: protecting minors from constitutionally-protected material deemed harmful, protecting adults First Amendmen t rights, and allowing parents to raise their children as the parents see fit. The author of th is study will trace the legi slative history of the 17 See AM. CIV. LIBERTIES UNION, LIBRARY INTERNET ACCESS IS STILL FREE FROM CENSORSHIP AS LAW GOES INTO EFFECT, ACLU TELLS LIBRARIES, PATRONS (April 19, 2001), available at http://www.aclu.org/Privacy/Privacy.cfm?ID=7224&c=252 See also Am. Library Assn, Th e Childrens Internet Protection Act (CIPA), http://www.ala.org/ala/aboutala/offices/wo/woissues /civilliberties/cipaweb/legalhistory/legalhistory.cfm (last visited July 20, 2009). 18 Am. Library Assn v. United States, 201 F. Supp. 2d 401 (E.D. Pa. 2002). The U.S. District Court for the Eastern District of Pennsylvania held that the Childrens Internet Protection Act was facially invalid. Id. at 411. 19 United States v. Am. Library Assn 539 U.S. 194 (2003), revg Am. Library Assn v. United States 201 F. Supp. 2d 401 (E.D. Pa. 2002). See Chapter 6 for the legislative history of the Childrens Internet Protection Act and see Chapter 7 for a discussion of the two court cases on the CIPA. 20 United States v. Am. Library Assn 539 U.S. at 215 (Kennedy, J., concurring). 21 The CIPA contains a disabling provision that allows librarians to disable the filter for adults for bona fide research or other lawful purposes. See 47 U.S.C. 254(h)(5)(D) and 47 U.S. C. 254(h)(6)(D)). If a librarian refuses to disable the filter or is unable to disable the f ilter in a timely manner, or if an adult patrons access to constitutionally-protected online content is burdened in some other substantial way, the patron would be able to challenge the CIPA on an as applied basis. See United States v. Am. Library Assn, 539 U.S. at 215 (Kennedy, J., concurring). For a discussion of the Childrens Internet Protection Act and its disabling provision, see infra Chapter 6, pp. 281 to 286. 13

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Childrens Internet Protection Act of 2000 and its predecessors to try to determine whether the CIPA can do what Congress expected of it. She will analyze studies on the strengths and limitations of Internet filtering and the implicatio ns on the librarians role and on patrons access to information in public libraries. The CIPA prohibits access to three types of content: 1) visual depictions that are obscene to any patron; 2) visua l depictions that involve chil d pornography to any patron; and 3) visual depictions that are considered harmful to minors to any person under the age of seventeen.22 Congress defined harmful to minors in th e Childrens Internet Protection Act as any picture, image, graphic image file, or other visual depiction that (i) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or ex cretion; (ii) depicts, describes, or represents, in a patently offens ive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated norma l or perverted sexual acts, or a lewd exhibition of the genitals; a nd (iii) taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors.23 The CIPAs definition of harmful to minors parallels in many ways the longtime threepart obscenity test that the Supreme Court established in Miller v. California in 1973,24 which is still the current precedent. 22 Childrens Internet Protection Act, Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified at 20 U.S.C. 9134(f)(1)9A)(i) and (B)(i); 47 U.S.C. 254(h)(6)(D)). 23 Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (cod ified as 20 U.S.C. 9134 (f)(7)(B) and 47 U.S.C. 254 (h)(7)(G)). 24 Miller v. California 413 U.S. 15, 24 (1973). In 1957, the Supreme Court held that obscenity was not protected by the First Amendment in Roth v. United States, 354 U.S. 476 (1957). In Miller, the Court established the current three-part obscenity test: 1) whether the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest; 2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the ap plicable state law; and 3) whether the work, taken as a whole, lacks serious literary, artistic political or scientific value. 14

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In Miller, the Court said that sexually oriented content was only obs cene, and therefore not protected by the First Amendment, when all three criteria were met: 1) whether the average person, applying contemporary community standards, would find the work, ta ken as a whole, appeals to the prurient interest; 2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and 3) whet her the work, taken as a whole, lacks serious literary, artistic, political or scientific value.25 In contrast to the Miller obscenity test, the CIPA only a pplies to visual depictions.26 The Miller obscenity test applies to all types of content and not just images. Unlike Miller the CIPA does not apply a contemporary community st andards provision to determine a prurient interest, but instead the CIPA st ates that the image must appeal to the prurient interest of minors,27 suggesting all minors adhere to the same sta ndard. The CIPA also uses terms related to sex and excretion that were not used in Miller According to the CIPAs prurient interest prong, images must appeal to a prurient interest in nudity, sex, or excretion.28 The Miller test did not list nudity, sex and excretion as part of the prurient interest prong. Under the CIPAs patently offensive prong, the images must be an actual or simulated sexual act or sexual contact, actual or simulated normal or perver ted sexual acts, or a le wd exhibition of the genitals.29 In contrast, the Miller tests patently offensive prong states that sexual conduct must be patently offensive, but Miller does not provide examples of sexual conduct.30 25 Miller, 413 U.S. at 24. 26 Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (cod ified at 20 U.S.C. 9134 (f)(7)(B) and 47 U.S.C. 254 (h)(7)(G)). 27 Id. 28 Id. 29 Id. 30 Miller, 413 U.S. at 24. 15

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The CIPA seems to reflect a variable obscen ity standard, which means that what is obscene for a minor might not be obscene for an adult. The Supreme Court upheld New York states variable obscenity standard in 1968, in Ginsberg v. New York .31 A luncheonette owner had been convicted under the New York statut e for selling a sixteen-year-old boy a girlie magazine on two separate occasions.32 However, the Court did not preclude parents from purchasing sexual material to share with their children.33 The magazines would not have been considered obscene by adult standards.34 For a magazine to be obscene by adult standards in 1968, the Court said, the magazine, as a whole, would need to appeal to the prurient interest and be utterly without redeeming social value, as determined by an average person applying contemporary national standards.35 The Childrens Internet Protection Act ame nded the E-rate program by requiring libraries and schools to install Internet fi lters in order to purchase Inte rnet access, telecommunications technology, and computer systems and equipment at a discounted rate. 36 The E-rate program, established under the Tel ecommunications Act of 1996, 37 amended the Communications Act of 31 Ginsberg v. New York, 390 U.S. 629 (1968). The Supr eme Court held that materi al considered obscene for minors may not necessarily be considered obscene for adults. Id. at 636. 32 Id. at 636-38, 645. 33 Id. at 639. 34 Id. at 636-38, 645. 35 Memoirs v. Massachusetts 383 U.S. 413, 418-20 (1966) and Roth v. United States 354 U.S. 476, 488-89 (1957). See also FREDERICK SCHAUER, THE LAW OF OBSCENITY 30-48 (1976) (discussing th e U.S. Supreme Court cases dealing with obscenity law in the twentieth century). Schauer explained that the Roth and Memoirs courts used a national standard, which the Miller Court rejected when it established the local community standard. See SCHAUER at 120-24, 139 and Miller v. California 413 U.S. 15 (1973). Schauer also said that the Miller Court limited the kinds of works that would be protected under obscenity law by changing the social value prong of the test. The Miller Court deleted the phrase utterly without redeeming soci al value and substituted the phrase whether the work, taken as a whole, lacks serious literary, ar tistic, political or scientific value. SCHAUER at 140-47. 36 United States v. Am. Library Assn 539 U.S. at 199. See also Telecomm. Act of 1996, 47 U.S.C. 254; FCC, Erate, http://www.fcc.gov/learnnet/ (last visited July 20, 2009). 37 Telecomm. Act of 1996, 47 U.S.C. 254. 16

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1934 by providing libraries and schools with access to advanced te lecommunications and information services at a discounted rate.38 The Childrens Internet Protection Act also amended the Library Services and Technology Act by requiring libraries to implement filtering technology and Internet use policies to receive funding.39 The Library Services and Technology Act (LSTA) provides funding only to libraries so that they can expand services for learnin access to information and educational resources in a variety of formats. g, r systems .41 40 The LSTA allows libraries to use funds to access information electr onically and acquire or share compute and telecommunication technology, including the purchase of Internet access To receive funding for computers and network access through the LSTA42 and discounts on telecommunication servic es through the E-rate,43 public libraries would need to install filtering software either on each co mputer in the library or on the librarys server that links computers in the library together.44 Libraries must have in place, and enforce, filtering on all computers connected to the Internet, even those not funded under the two programs.45 In addition to mandating Internet 38 Id. 39 Childrens Internet Protection Act, 20 U.S.C. 9134(f) (2000). 40 Library Servs. & Tech. Act, 20 U.S.C. 9141(a)(1)(C) (2003). 41 United States v. Am. Library Assn 539 U.S. 194, 199 (2003) (citing Library Servs. & Tech. Act, 20 U.S.C. 9141(a)(1)(C) (2003)). 42 Title III of the Elementary & Secondary Ed uc. Act, 20 U.S.C. 9121, 9134 (2000). 43 47 U.S.C. 254. See also H.R. 4577, 106th Cong. (2d Sess. 2000). 44 A server is a computer that delivers information and software to other computers linked by a network. When individual computers are configured in such a way that they must go through the server to connect to the Internet, a software filter installed on the server computer would bl ock selected content from reaching the individual computers connected to it. Libraries typically also have internal co mputers that allow patrons to search the library systems holdings but that are not connected to the Internet. See PETER BUCKLEY & DUNCAN CLARK, THE ROUGH GUIDE TO THE INTERNET 20, 323 (2007). 45 Childrens Internet Protection Act, 20 U.S.C. 9134(f)(1)(B); 47 U.S.C. 254(h)(6)(B) and (C). See also United States v. Am. Library Assn, 539 U.S. at 230-31. Neither the legislation nor the legislative history distinguishes staff 17

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filtering technology, the Childrens Internet Protection Act also requires libraries and schools to implement an Internet safety policy for minors.46 In 2007-2008, 44% of public libraries did not apply for E-rate f unding. According to a national survey, the three most common reasons that libraries listed for not applying for the funding were 1) The application process was t oo complicated (40.4%); 2) the E-rate discount was fairly low and not worth the time needed to participate in the progr am (38.8%); and 3) the libraries were not willing to comply with the CIPAs filtering requirements (31.6%). Suburban and low poverty libraries were least likely to ap ply for E-rate funding, wh ereas high poverty and medium poverty libraries we re most likely to apply.47 The Childrens Internet Protection Act states that librarians may disable the filtering technology to enable access for bona fide research or other lawful purpose(s),48 although the law does not require librarians to do so. Under the E-rate program, adults can request that filters be disabled for adult use only, whereas under th e LSTA program, adults and minors can request that the filtering technology be turned off and th en use the computer w ithout filtering software.49 However, if a library receives both E-rate a nd LSTA funds, librarians cannot disable the filters when minors are using computers.50 and patron computers; therefore, anyone reading the legi slation could assume filteri ng software must also be installed on nonpublic computers. 46 20 U.S.C. 9134(f)(1)(A), 47 U.S.C. 254(h)(5)(A) and 47 U.S.C. 254(h)(6)(A). For an explanation of the Internet safety policy, see supra note 10. 47 Bertot et al., supra note 1, at 46-47. 48 Childrens Internet Protection Act, 47 U.S.C. 254(h)(6)(D); 20 U.S.C. 9134(f)(3). In the E-rate provision, 47 U.S.C. 254(h)(6)(d), the singular term purpose is used whereas in the LSTA provision, 20 U.S.C. 9134(f)(3), the plural term purposes is used. 49 United States v. Am. Library Assn, 539 U.S. at 201. See also Pub. L. No. 106-554 (codified as 20 U.S.C. 9134(f)(3)). 50 47 U.S.C. 254(h)(6)(d). 18

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Relevance of Study The Childrens Internet Protection Act has signi ficant implications on the role that public libraries play in providing patrons with access to information. This dissertation will examine the important role that the CIPA plays on online co ntent seen in public libraries. Because of the history of obscenity and indecency laws in the United States, the obscenity and indecency issues have played powerful roles in how Internet content is regulated. The purposes of this dissertation are to 1) further public understanding of the role of the public library; 2) analyze the legal and practical aspects of implementing mandatory Internet filtering in public libraries; 3) examine the tech nological and regulatory scheme of the CIPA to determine if it is capable of doing what Congress is asking of it. To that end, the author will analyze the Child rens Internet Protection Act and previous Internet filtering bills, examine the congressional process that le d to the CIPA, and examine the constitutional and technical issues surrounding Internet filters in publ ic libraries. She will analyze the Supreme Court s upholding of the CIPA. By examini ng the role of the public library in providing access to information and trying to ascertain whether or not the CIPA will accomplish what Congress was asking it to do, the aut hor will fill in some of the gaps in the collective body of literature. Research Questions This dissertation will try to illuminate the significance and implications of the Childrens Internet Protection Act by attempting to answer the following research questions: 1) What is the role of American public libraries? 2) How do the traditions and jurisprudence of the First Amendment relate to the role of American public libraries? 3) What is th e tradition in the United States of protecting children from sexually or iented materials and have the reasons behind the motivation to protect children been substantiated by social sc ience research? 4) What could 19

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Internet filtering/blocking tec hnologies do to protect children from sexually oriented material on the Internet before the adoption of the Childrens Internet Act? 5) What is the legal history of attempts to protect children from harmful sexua lly oriented content on the Internet? 6) What legislative developments led to the adoption of the CIPA? 7) How has the CIPA been treated by the courts? 8) Is the regulato ry and technological system esta blished by the CIPA capable of doing what Congress is asking of it? Contributions to the Field While the secondary literature has addr essed some of the constitutional issues surrounding the mandatory installa tion of filtering technology on public library computers, no one has done a thorough legislative analysis of the Childrens Internet Protection Act or past Internet filtering bills or an examination of cu rrent filtering technology. This dissertation will fill a void in the literature by examining the Act in the context of First Amendment theory, discussing the mission and role of the public libra ry, examining the status of current filtering technology, and analyzing the Childre ns Internet Protec tion Act of 2000 to try to determine if the CIPA does what Congr ess expected it to do. Theoretical Framework Because public libraries are designed to provi de patrons with access to information, First Amendment theory, public forum doctrine, and the mission and role of the public library provide a useful and appropriate f oundation for this dissertation.51 Several First Amendment theories are helpful in understanding the S upreme Courts emphasis on the First Amendment in library cases, even though these theories are seldom devel oped in the opinions themselves. The First Amendment theories most relevant to the issues of this dissertationother than the legal concept 51 For a discussion of the history, mission and role of public libraries, see Chapter 2. 20

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of public fora which will be disc ussed separatelyare those that de al with 1) the right to receive information and ideas, 2) personal self-fulfillment and self-development, 3) a commitment to an unfettered marketplace of ideas where truth can perhaps be best discovered, 4) the need for information in order to effectively particip ate in our system of government and monitor government performance, and 5) the need to monitor or check on the abuse of government power. In Chapter 2, the author of this disserta tion will discuss the public librarys mission and role and First Amendment theory as it applies to public libraries. Review of the Literature More than thirty commentators have written about the Childrens Internet Protection Act of 2000. At least a dozen commentators have wri tten about proposed legislation prior to the CIPA and Internet filtering in public libraries in general. Most of the authors focused on the constitutionality of the Childrens Internet Protection Act and argued against one or more provisions of the CIPA. However, no one has done an extensive legislative and judicial study of the issue, nor looked at the tec hnology and traditions of the public library and the historical regulations on behalf of children. In addition, no one has examined whether Internet filtering can accomplish what Congress expected of it, or the state of current filter ing technology nearly a decade after Congress enacted the CIPA. Commentators writing about the CIPA in recent years reported on the older filtering technology studies th at had been cited in the 2002 district court case and the 2003 Supreme Court case. An analysis of studies on newer filtering software is important because the courts and the government addressed the potential for improved technology in the future.52 52 In United States v. American Library Association the Supreme Court acknowledged that filtering software in the foreseeable future will contain fundamental defects. 539 U.S. at 221 (Stevens, J., dissenting). In American Library Association v. United States 201 F. Supp. 2d 401, 431 (2002), the District Court wrote, Image recognition technology is immature, ineffective, and unlikely to improve substantially in the near future. A congressionally 21

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The Childrens Internet Protection Act of 2000 In 2009, professors Paul Jaeger and Zehng Yan st ated that very little research has been done on the social, economic and political ramifi cations of the Childrens Internet Protection Act.53 Because the CIPA applies to public libra ries as well as schools, Jaeger and Yan questioned the appropriateness of adult library patrons and librarians being restricted to the same level Internet of access as school children.54 The two researchers also said that all minors, regardless of age, are treated alike under the CIPA, even though older and younger children do not have the same level of maturity. hanged.56 55 They recommended that future researchers study the societal effects of the CIPA such as whether the CIPA has changed the education and information-provision roles of libraries and schools, and whet her minor patrons information behaviors have c In 2008, the previous year, Lisa Schneider Finsness briefly summarized the CIPA in her doctoral dissertation that examined whether Intern et content filters blocked information that high school students needed to comple te Minnesota Academic Standards.57 She found that the level of commissioned study by the National Research Council found th at filters will continue to suffer from overblocking and underblocking, in part because human beings who are judging content will bring diverse (and inconsistent) perspectives to the job. See Youth, Pornography, and the Internet (Dick Thornburgh & Herbert S. Lin, eds., 2002), available at http://bob.nap.edu/html/youth_internet/. For a discussion of filtering technology, see Chapter 3. For a discussion of Congressional hearings and reports on filtering technology, see Chapter 6. 53 Paul Jaeger & Zheng Yang, One Law with Two Outcomes: Comparing the Implementation of CIPA in Public Libraries and Schools, 28 INFO. TECH. AND LIBRARIES 6, 12 (March 2009). 54 Id. at 12. 55 Id. 56 Id. 57 Lisa Schneider Finsness, The Implication of In ternet Content Filters in Secondary Schools 57 (May 2008) (unpublished Ph.D. dissertation, Univers ity of Minnesota) (on file with auth or). The Minnesota Academic Standards for grades 9 through 12 requires st udents to compare and contrast view points and to use critical analysis. Id. at 68. Students are required to meet state standards in nine subj ect areas, including language arts, history, math, health education, arts and science. Some subject areas require st ate testing, while other subject areas are assessed by the schools. See Minnesota Dept. of Education, Graduation Requirements (2007-08), available at http://cfl.state.mn.us/MDE/Academic_Excellence/Academic_Standards/Graduation_Requirements/index.html 22

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filtering can affect a students ab ility to access the needed information to meet Minnesotas state standards, and that different fi ltering software manufacturers cat egorize the same content on the same Web site differently.58 In studying nine school district s, Finsness found only three of the technology administrators and none of the teachers understood the CIPA law.59 It is possible that districts would choose less re strictive Internet c ontent settings and that teachers would be more confident about reporting blocked sites if everyone had a better understanding of the law, she wrote.60 In 2007, one more year earlier, in a masters thesis on social networking sites and the Deleting Online Predators Act (DOPA), Anna Forslund summarized the Childrens Internet Protection Act and the Supreme Court s decision that upheld the CIPA.61 The Deleting Online Predators Act, which was not enacted, would have required schools and libraries receiving E-rate funding to block access to commercial social networking Web sites and chat rooms.62 The Finsness studied two content areashistory and health education. She said that she chose history and health education because each course requires the study and anal ysis of multiple perspectives and opposing viewpoints. Finsness at 68. Finsness studied nine of Minnesotas 345 school districts, which she listed as a limitation of the study. However, she reported that rural and metropolitan districts were included in the study. Eight of the nine schools used filtering software, and seven different brands of Internet filters were represented in the study. Id. at 71, 153. In conducting her research, Finsness surveyed technology admi nistrators and interviewed teachers and administers. She also requested access to Web sites blocked by each schools filtering so ftware in an effort to determine how the filtering companies rated the content on the Web sites. Seven of the nine districts involved in the study used Internet content filters. Finsness reviewed each of the seven different products and checked twenty-one URLs to find out how each blocked site was categorized and whether the site would be blocked in other schools. Id. at 71. 58 Finsness, supra note 57, at 127. 59 Finsness, supra note 57, at 147. 60 Finsness, supra note 57, at 148. 61 Anna Forslund, Protecting Americas Yo uth Online: A Legal and Ethical Analysis (December 2007) (unpublished masters thesis, Southern Illinois Univers ity at Carbondale) (on file with author). 62 Id. at 49. The DOPA was introduced in Congress in both 2006 and 2007, but was not enacted in either year. In 2006, the bill passed in the House, but died in the Senate Commerce Committee. See Deleting Online Predators Act of 2006, H.R.5319, 109th Cong. (2d Sess. 2006). See also Susan Hanley Duncan, MySpace Is Also Their Space: Ideas for Keeping Children Safe from Sexual Predators on Social--Networking Sites, 96 KY. L.J. 527, 547 (200723

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bill did not define commercial social networking Web sites or chat rooms, but rather left it up to the Federal Communications Commission to develop specific definiti ons at a later date.63 Forslund stated that the text of the DOPA indi cated Congress concern with protecting minors from online predators.64 Similar to the Childrens Internet Protection Act, the Deleting Online Predators Act contained a disab ling provision for adults and fo r minors when computers were used for educational purposes.65 Forslunds thesis did not includ e a legislative history of the CIPA. Her thesis also did not include a discussi on of the history of public libraries, filtering technology studies, or the traditi on in the United States of prot ecting children from sexually oriented materials. She argued against Internet filt ering, stating that [l]aw makers must resist the temptation to panic and instead focus on striking a balance between the expression of and the protection of Americas youth.66 Also in 2007, Tonnis Venhuizen, a law student argued that the Supreme Court, in upholding the CIPA in 2003, missed th e opportunity to reconsider the limits of Congressional spending power67 that were established in South Dakota v. Dole .68 Venhuizen said that the Dole 08). In 2007, the bill died in the House Subcommittee on Telecommunications and the Internet. See Deleting Online Predators Act of 2007, H.R. 1120, 110th Cong. (1st Sess. 2007). 63 Forslund, supra note 61, at 49. 64 Forslund, supra note 61, at 49. Forslund wrote, According to DOPAs text, Congress has found that (1) sexual predators approach minors on the Internet using chat rooms and social networki ng Web sites, and, according to the United States Attorney General, one in five children has been approached sexually on the Internet; (2) sexual predators can use these chat rooms and Web sites to locate, learn about, befriend, and eventually prey on children by engaging them in sexually explicit conv ersations, asking for photog raphs, and attempting to lure children into a face to face meeting; and (3) with the explosive growth of trendy chat rooms and social networking Web sites, it is becoming more and more difficult to monitor and protect minors from those with devious intentions, particularly when children are away from parental supervision (Deleting Online Predators Act, 2006, 2007). 65 Forslund, supra note 61, at 49. 66 Forslund, supra note 61, at 77. 67 U.S. CONST., art. I, 8, cl.1. The Congress shall have Po wer To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States. 24

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decision gave Congress a plenary power under the spending clause, thus allowing Congress to enact legislation that it could not enact directly.69 The CIPA Court reinforced the perception that [Congress] spending power is without significant limit, Venhuizen said.70 He argued that the CIPA Court should have replaced the Dole standard or imposed significant new limits on congressional (spending) power by redefining the elements of the Dole standard.71 The CIPA Court viewed the CIPA case primarily as a spending clause case, rather than a First Amendment case, he said.72 If the CIPA Court had revised the Dole standard, the Court might have upheld the CIPA for computers purchased with federal funds, but not for computers purchased with non-federal funds, Venhuizen said.73 At least three authors argued that the Childrens Internet Protection Act was constitutional.74 Prior to the Supreme Courts decision to uphold the CIPA, Mark Nadel, an attorney with the Federal Communications Commission, stated that the First Amendment allows libraries to use Internet filters as long as the filters are not us ed to favor one socio-political 68 Tonnis Venhuizen, United States v. American Library Association: The Supreme Court Fails to Make the South Dakota v. Dole Standard a Meaningfull [sic] Limitation on the Congressional Spending Powers, 52 S.D. L. REV. 565, 597, 604 (2007). See also South Dakota v. Dole 483 U.S. 203 (1987) (upholding the National Minimum Drinking Age Amendment of 1984, which required the federal government to withhold 5% of highway funds from states that allowed persons under twenty-one to purchase or possess alcoholic beverages). For a discussion of the Supreme Courts decision on the Childrens Internet Protection Act and the application of the Dole test to the CIPA, see Chapter 7. 69 Venhuizen, supra note 68, at 604. For a discussion of the Supreme Courts decision on the Childrens Internet Protection Act and the application of the Dole test to the CIPA, see Chapter 7. 70 Venhuizen, supra note 68, at 604. 71 Venhuizen, supra note 68, at 604. 72 Venhuizen, supra note 68, at 604. 73 Venhuizen, supra note 68, at 603. See supra notes 8-10 for a summary of the Childrens Internet Protection Act. See Chapter 7 for a discussion of the Su preme Courts deci sion on the CIPA. 74 Mark S. Nadel, The First Amendment Limitations on the Use of Internet Filtering in Public and School Libraries: What Content Can Libraries Exclude? 78 TEX. L. REV. 1117 (2000); Susannah Malen, Protecting Children in the Digital Age: A Comparison of Constitutional Challenges to CIPA and COPA, 26 COLUM. J.L. & ARTS 217 (2003); Patrick Garry, The Flip Side of the First Amendment: A Right to Filter, 2004 MICH. ST. L. REV. 57, 68 (2004). 25

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viewpoint over another.75 Librarians may install filters to help their patrons use the library's computer terminals and Internet links to gain ea sier access to those cate gories of content the librarians choose to include in their collections, Nadel said.76 Before the Supreme Court upheld the CIPA, a law student stated that when Congres s allocates funding, it has the right to restrict how those funds can be used as long as it does not use its Spending Power to violate constitutionally protected rights.77 After the Supreme Court upheld the CIPA, a law professor stated that the Supreme Court was correct in viewi ng librarians as editors, rather than selectors, of information. He compared Inte rnet filtering to ed iting and said the C ourt has recognized a constitutional right to edit.78 Several commentators stated that the CIPA is unconstitutional.79 They argued that the CIPA is a content-based restric tion, and therefore, the Supreme Court should have applied the 75 Nadel, supra note 74, at 1119. 76 Nadel, supra note 74, at 1119. 77 Malen, supra note 74, at 250. 78 Garry, supra note 74, at 68. However, Garrys analysis does no t seem to be directly applicable to the CIPA. In United States v. Am. Library Assn, 539 U.S. 194, 208 (2003), the Supreme Court stated that librarians are making acquisition or collection decisions when filtering Internet content and not removal decisions. Also, the two cases Garry used as support for his argument also do not seem to be directly applicable to the CIPA. He cited Miami Herald v. Tornillo, 418 U.S. 241 (1974), and he correctly stated that the Court upheld the right of newspapers to control and edit content as they saw fit. However, th e roles of a commercial newspaper and public library are different. A newspaper is not publicly funded to serve citiz ens, nor are its facilities open to the public for obtaining information. Tornillo, 418 U.S. at 258. Garry also cited Denver Area Educational Telecommunications Consortium v. FCC 518 U.S. 727 (1996), in which he said the Court affirmed the right of ca ble operators to edit out sexually explicit programming. However, th at statement is not totally accurate. In Denver the Court upheld one of three challenged parts of the Cable Act of 1992 and struck down the other two on First Amendment grounds. The Court affirmed the rights of cable operators to decide whether or not to broadcast programming depicting sexual or excretory activities on leased access channels, that is, channels leased to other program pr oviders. The Court struck down a provision requiring leased channel operators to segregate and to block such programming. The Court also struck down a provision allowing cable operators to ban offensive or indecent programming on public access channels. See Denver Area Educ. Telecomm. Consortium 518 U.S. at 727, 733, 752-54, 766-68. 79 Michael Cassidy, Note, To Surf and Protect: The Childrens Internet Protection Act Polices Material Harmful to Minors and a Whole Lot More 11 MICH. TELECOMM. TECH. L. REV. 437, 440 (2005); Katherine Miltner, Note, Discriminatory Filtering: CIPAs Effect on Our Nationa ls Youth and Why the Supreme Court Erred in Upholding the Constitutionality of the Childrens Internet Protection Act 57 FED. COMM. L.J. 555, 578 (2005); Larissa Piccardo, Note, Filtering the First Amendment: The Constitutionality of Internet Filters in Public Libraries Under the Childrens Internet Protection Act 41 HOUS. L. REV. 1437, 1467 (2004); Leah Wardak, Note, Internet Filters 26

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strict scrutiny test.80 In discussing the CIPAs provi sion mandating a technology blocking mechanism, several authors have argued that the CIPA violates the First Amendment because filtering software blocks too much constitutionally protected speech.81 Others stated that filtering is more analogous to library removal decisions than acquisition decisions,82 and therefore, filtering would require the use of the strict scrutiny test.83 Some commentators also argued that the S upreme Court incorrectly labeled Internet access in public libraries as a nonpublic forum.84 The designation of the type of forum and the First Amendment: Public Libraries After United States v. Am. Library Association 35 LOY. U. CHI. L.J. 657, 725-26 (2004); Darin Siefkes, Note and Comment, Explaining United States v. American Library Association: Strictly Speaking, a Flawed Decision 57 BAYLOR L. REV. 327, 357 (2005). 80 Cassidy, supra note 79, at 440; Miltner, supra note 79, at 578; Piccardo, supra note 79, at 1467; Wardak, supra note 79, at 725-26; Siefkes, supra note 79, at 357. For a content-based restriction to pass the strict scrutiny test, the restriction must be narrowly tailored to serve a compelling Government interest and must be the least restrictive alternative. See United States v. Playboy Entmt Group 529 U.S. 803, 813 (2000). 81 Wardak, supra note 79, at 726; J. Adam Skaggs, Note, Burning the Library to Roast the Pig? Online Pornography and Internet Filtering in the Free Public Library, 68 BROOKLYN L. REV. 809, 847 (2003); Peltz, supra note 13, at 478-79. 82 The term acquisition refers to a librarys method of selecting materials to include in its collection. In 1933, the Public Library Association (PLA), a division of the American Library Association (ALA), established general standards for deciding the amount and kinds of materials to acquire. In the 1970s, the PLA shifted from a quantitative standard to a community standard. Today, public libraries collect materials in a variety of formats (such as books, musical scores, photographs and microform) to meet individual and group needs for information, education, self-realization, recreation and cultural growth, as well as to assist patrons in carrying out their duties as citizens and community members. See JEAN KEY GATES, INTRODUCTION TO LIBRARIANSHIP146-47 (1990). See also BRUCE A. SHUMAN, FOUNDATIONS AND ISSUES IN LIBRARY AND INFORMATION SCIENCES 26-34 (1992). The American Library Associations Bill of Rights states: Books and other library resources should be provided for the interest, information, and enlightenment of all people of the community the library serves. Materials should not be excluded because of the origin, background, or views of those contributing to their creation. AM. LIBRARY ASSN, LIBRARY BILL OF RIGHTS, available at http://www.ala.org/ala/aboutala/offices/oif/sta tementspols/statementsif/librarybillrights.cfm 83 Miltner, supra note 79, at 557, 570; Piccardo, supra note 79, at 1459; Wardak, supra note 79, at 668; Siefkes, supra note 79, at 327; Raizel Liebler, Institutions of Learning or Havens for Illegal Activities: How the Supreme court Views Libraries, 25 N. ILL. U. L. REV. 1, 3, 39 (2004). 84 Liebler, supra note 83, at 3-5, 70; Cassidy, supra note 79, at 465-67; Paul Jaeger & Charles McClure, Potential Legal Challenges to the Application of the Childrens Intern et Protection Act (CIPA) in Public Libraries: Strategies and Issues, FIRST MONDAY (non-paginated online publication) (2004), http://firstmonday.org/htbin/cgiwrap/ bin/ojs/index.php/ fm/issue/view/167 and http://firstmonday.org/issues /issue9_2/jaeger/index.html (last visited July 20, 2009); Derrick Stomberg, Note, United States v. American Library Association, Inc.: The Internet as an Inherently Public Forum, 45 JURIMETRICS J. 59, 71 (2004). 27

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determines the level of scrutiny because contentbased speech restrictions in traditional and limited public fora are subj ect to strict scrutiny.85 A traditional public forum is one that historically has been open for public discourse and debate86 and does not require official government designation.87 Examples include streets, park s, sidewalks, and town squares.88 In the second type of forum, a limited or designate d public forum, the government opens its public property for specific expressive activity or discussion of specific subjects89 or for use by certain groups, such as opening public university m eeting rooms for regist ered student groups90 and municipal theaters for performers.91 The third type of forum, a nonpublic forum,92 generally is not open for public use because the property ha s an intended primary purpose that is not 85 Wardak, supra note 79, at 667. 86 Cornelius v. NAACP Legal Def. & Educ. Fund 473 U.S. 788, 800 (1985) and Perry Educ. Ass'n v. Perry Local Educators' Ass'n 460 U.S. 37, 45 (1983). 87 See Hague v. CIO, 307 U.S. 496, 515 (1939) and Perry, 460 U.S. at 45. 88 Hague 307 U.S. at 515; Perry, 460 U.S. at 44-45; United States v. Am. Library Assn 539 U.S. 194, 202 (2003). 89 Perry, 460 U.S. at 45-46. See also City of Madison Joint Sch. Dist. v. Wisc. Employment Relations Commn 429 U.S. 167, 175 (1976) (holding that school board meetings were open to employees as well as the public, and stating, Where the State has opened a forum for direct citizen involvement, it is difficult to find justification for excluding teachers.). 90 Widmar v. Vincent 454 U.S. 263, 269, 270-71, 277 (1981). The Supreme Court held that state regulation of speech must be content neutral and a st ate university's refusal to grant stude nt religious group access to university facilities was unjustifiable, content-based exclusion of relig ious speech as the facilities were generally open to other student groups. According to the Court opinion, [T]he campus of a public university, at least for its students, possesses many of the characteristics of a public forum. Widmar 454 U.S. at 269. See also Perry, 460 U.S. at 37, 45-47. 91 Se. Promotions, Ltd. v. Conrad 420 U.S. 546 (1975). In a per curiam opinion expressing the view of five members of the Supreme Court, the Court held that a city board had engaged in prior restraint by refusing to grant the use of community facilities to a theater group wanting to perform the musical Hair. The Court said the board did not have constitutionally required procedural safeguard s in place to decide on usage requests only based its decision on outside reports that the play involved nudity and was obscene. See also Perry, 460 U.S. at 45-47. 92 Intl Socy for Krishna Consciousness v. Lee 505 U.S. 672, 679 (1992). Ju stice William Rehnquist, who wrote the majority opinion, used the term nonpublic fora to de scribe airport terminals. Lik e the Court of Appeals, we conclude that the terminals are nonpublic fora and that the regulation reasonably limits solicitation. Id. at 679. The International Society for Krishna Consciousness, a religious group, had invoked the First Amendment in challenging the law that prohibited solicitation of money and the distribution of literature inside airport terminals. The law allowed the solicitation of money and distribution of literature on sidewalks outside the airport terminals. Id. at 67475. 28

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consistent with public use93 and has not been designated a public forum by the government.94 Examples of a nonpublic forum include airport terminals,95 military bases,96 prisons and jails,97 and teacher mailboxes.98 One law student argued that if forum analysis is applicable at all, the Court should have viewed the Internet as a traditional public forum.99 Several authors stated that the Supreme Court should have designated Internet access in public libraries as a limited public forum, consistent with the Courts previous decisions involving libraries.100 Other commentators, because of the Supr eme Courts plurality opinion upholding the CIPA, have stated the Court stil l has not definitively settled101 or clarified102 the issue concerning what type of forum a public library really is. Derrick Stomberg, a law student, said that the Supreme Court has been using a ninet eenth century paradigm in applying public forum 93 Perry, 460 U.S. at 46. 94 Lee, 505 U.S. at 678-79. 95 Id. at 680-81. 96 Greer v. Spock 424 U.S. 828, 838-39 (1976). 97 Adderley v. Florida 385 U.S. 39, 41 (1966) and Jones v. N.C. Prisoners Labor Union 433 U.S. 119 (1977). 98 Perry, 460 U.S. at 49. For a more thorough discussion of public fora doctrine and its applicability to public libraries, see Chapter 2. 99 Siefkes, supra note 79, at 353. Other commentators also have ar gued that the Internet should be treated as a traditional public forum. See Dawn C. Nunziato, The Death of the Public Forum in Cyberspace, 20 BERKELEY TECH. L.J. 1115, 1164 (2005); Aaron Jacobson, Note, United States v. American Library Association: Software Filters, Free Speech, and the Shrinking Public Forum, 38 U.C. DAVIS L. REV. 1345, 1361 (2005); Liebler, supra note 83, at 74; Stomberg, supra note 84, at 71; Peltz, supra note 13, at 463. See also Bernard Bell, Filth, Filtering, and the First Amendment: Rumination on Public Libraries Use of Internet Filtering Software, 53 FED. COMM. L.J. 191, 206-08 (2001). Professor Bell has argued that a library is, at the very least, a limited public forum and perhaps even a traditional public forum for receiving information. See also Steven Gey, Reopening the Public ForumFrom Sidewalks to Cyberspace, 58 OHIO ST. L. J. 1535, 1611 (1998). Professor Gey said that the Supreme Court implied that the Internet was a traditional public forum when it struck down the Communications Decency Act in Reno v. ACLU 521 U.S. 844 (1997). 100 Cassidy, supra note 79, at 465; Liebler, supra note 83, at 7-8; Piccardo, supra note 79, at 1459, 1467. 101 Jaeger & McClure, supra note 84. 102 Liebler, supra note 83, at 70. 29

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doctrine and that an inherently public forum may need to be added as a fourth type of forum.103 Courts then could evaluate objective char acteristics of non-trad itional properties to determine if they promote the goals of public forum doctrine, and if so, designate those properties as inheren tly public fora. As Stomberg noted in his article, the concept of an inherently public forum is not new. In 1992, Supreme Court Justice Anthony Kennedy said the Court should adopt a more modern and objective standard to the public forum doctrine, one that extends beyond the historical designation of streets, parks and sidewa lks because their role is diminishing.104 Stomberg argued that the Internet has become th e modern public forum as it provid es speakers and recipients with a primary way of exchanging ideas and information in a centralized place.105 Several law students said that the Supreme Court did not either apply or address the First Amendment right to receive ideas and information in the CIPA case, even though that right was clearly established in its earlier cases.106 In addition, two library scholars argued that the constitution protects the right to receive information, and ye t the imprecision in filtering technology limits access to protected information.107 Several commentators recognized that the Supreme Court has stated that minors have a lesser First Amendment right to receive information 103 Stomberg, supra note 84, at 70. 104 Stomberg, supra note 84, at 69-71 (citing Intl Socy for Krishna Consciousness v. Lee 505 U.S. 672, 697-98 (Kennedy, J., concurring in the judgment)). 105 Stomberg, supra note 84, at 71; see also Gey, supra note 99, at 1618. 106 Cassidy, supra note 79, at 465; Barbara Sanchez, United States v. American Library Association: The Choice Between Cash and Constitutional Rights, 38 AKRON L. REV. at 485-87; Piccardo, supra note 79, at 1451-54 (2004); Wardak, supra note 79, at 732 (2004). See Chapter 2 for a discussi on of the First Amendment right to receive ideas and information. 107 Jaeger & McClure, supra note 84. At the time this article was published, Jaeger, who has a J.D. and masters degree in Information Studies, was a Ph.D. student at Flor ida State University and serving as a senior research associate at the School of Informat ion Studies. McClure was professor and director of the Information Use Management and Policy Institute of the School of Information Studies at Florida State University. 30

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than adults.108 However, the Court failed to address th at right at all when ruling on the CIPA, according to a law student.109 Several authors, in analyzing the text of the Childrens Intern et Protection Act, criticized Congress choice of wording of the statute. The commentators argued that the terms, such as bona fide research, technology protective measure, and harmful to minors are ambiguous.110 At the time Congress enacted the CIPA a law student said that filtering technology was incapable of blocking vis ual depictions deem ed obscene, child pornography or harmful to minors,111 which were terms used in the CIPA.112 Moreover, filtering technology software descri ptions did not match these three definitions, according to an attorney who advised the House Committee on Science and Technology.113 A law student argued that filters cannot differentiate between content that is obscene and that which is harmful to 108 Sidne Koenigsberg, Print Symposium Contract Options for Individual Artists: Library Records Open to Parental Scrutiny: A New Set of In ternet Access Controls for Minors, 29 COLUM. J.L. & ARTS 361, 374 (2006); Cassidy, supra note 79, at 675; Nunziato, supra note 99, at 155-57 (2004); Gregory Laughlin, Sex, Lies and Library Cards: The First Amendment Im plications of the Use of Software Filters to Control Access to In ternet Po rnography in Public Libraries, 51 DRAKE L. REV. 253 (2003); Horowitz, supra note 13, at 426-27. See also Ginsberg v. New York 390 U.S. 629, 638 (1968). 109 Cassidy, supra note 79, at 465. 110 Miltner, supra note 79, at 63; Jared Chrislip, Filtering the Internet Like a Smokestack: How the Children's Internet Protection Act Suggests a New Internet Regulation Analogy, 5 J. HIGH TECH. L. 261, 278-79 (2005). See also Michael Birnhack & Jacob Rowbottom, Symposium Do Children Have the Same First Amendment Rights as Adults?: Shielding Children: The European Way, 79 CHI.-KENT L. REV. 175, 217 (2004) (discussing Internet filtering software in general and stating, [I]n many cas es it is unclear, and it cannot be made clear, in advance whether the content at stake is harmful to children or not. A court can decide so in retrospect, but what is the line between that which is harmful to a child and that which is not?) 111 Chrislip, supra note 110, at 278. 112 For a discussion of more recent Internet filtering technology, see Chapter 3. 113 Mitchell Goldstein, Congress And The Courts Battle Over The Fi rst Amendment: Can The Law Really Protect Children From Pornography On The Internet? 21 J. MARSHALL J. COMPUTER & INFO. L. 141, 187 (2003). Examples of filtering categories are adults only, sexually ex plicit, sex education, nudity and violence. For a discussion of how filtering software works, see Chapter 3. 31

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minors,114 an important distinction since adults legally would be allowed to access the nonobscene material that could be co nsidered harmful to minors. Under the current Miller test, obscenity is evaluated, in part, on local community standards.115 However, community and geographic boundari es dont exist in cyberspace, as one commentator pointed out.116 In addition, proprietary filtering software, which is developed for national and international market s, cannot take into account lo cal community standards when blocking images deemed obscene.117 In contrast to the Supreme Courts argument that filters could easily be disabled, the process can be ti me-consuming and difficult, according to several prominent library scholars.118 They also stated that the cost of filters sometimes exceeds the government funding for library computers and technology. 119 Several commentators questioned the Supreme Courts interpretation of the role of public librarians. Professor Felix Wu argued that the plurality in the CIPA case did not characterize librarians the way the public doesas information managers, not gatekeepers.120 Librarian Jill Ratzan said the CIPA did not differentiate publ ic librarians from school librarians. The CIPA appears to establish new, contradictory, and pe rhaps undesirable roles fo r public librarians, she wrote. For example, under the CIPA, librarians would be unblockers and deniers of access, 114 Chrislip, supra note 110, at 269 and n.47. 115 See supra note 25 and accompanying text. 116 Todd Nist, Note, Finding the Right Approach: A Constitutional Alternative for Shielding Kids from Harmful Materials Online, 65 OHIO ST. L. J. 451, 459 (2004). 117 Amitai Etzioni, Symposium, Do Children Have the Same First Amendment Rights as Adults?: On Protecting Children from Speech, 79 CHI.-KENT L. REV. 3, 51 (2004); Goldstein, supra note 113, at 187. 118 Paul Jaeger, Charles McClure, John Bertot & Lesley Langa, CIPA: Decisions, Implementation, and Impacts, 44 PUB. LIBRARIES 105, 106 (2005). See also Miltner, supra note 79, at 563. 119 Jaeger, McClure, Bertot & Langa supra note 118, at 107; see also Liebler, supra note 83, at 67. 120 Felix Wu, Note United States v. American Library Assn: The Childrens Internet Protection Act, Library Filtering, and Institutional Roles, 19 BERKELEY TECH. L.J. 555, 575 (2004). 32

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which are antithetical to librarians traditiona l roles as providers of access, Ratzan said.121 Law Professor Jim Chen argued that decisions to acquire material should lie beyond judicial challenge and legislative mandates to exclude material should draw st rict scrutiny and should be presumed unconstitutional.122 Two commentators have said that the Supreme Courts deci sion on the CIPA shows that the Court needs to reconcile its contradictory decisions. Professo r Wu stated that the Courts decisions regarding overall First Amendment issues seem ad hoc. He said that the Court needs to reconcile the various doctr ines and line of cases under a broader framework so as to understand the relevant factors before a pplying the doctrines to a specific case.123 He suggested the Court look at both the government entity making the restric tion and the place being restricted to evaluate whether the proposed restriction is consistent with the level and type of discretion entrusted to that entity.124 Law librarian Raizel Liebler stated that the Supreme Court plurality opinion ignored library case precedent. Liebler said the Court plurality did not even mention Brown and Pico two key library cases.125 She noted that only two opinions in the CIPA case 121 Jill Ratzan, CIPA and the Roles of Public Librarians, 43 PUB. LIBRARIES 285, 286 (2004). 122 Jim Chen, Mastering Eliot's Paradox: Fostering Cultural Memory in an Age of Illusion and Allusion, 89 MINN. L. REV. 1361, 1362 (2005). See also Marc Blitz Constitutional Safeguards for Silent Experiments in Living: Libraries, the Right to Read, and a First Amendment Th eory for an Unaccompanied Right to Receive Information, 74 UMKC L. REV. 799, 843-44 (2006) (arguing in support of a library autonomy model). 123 Wu, s upra note 120, at 568. 124 Wu, supra note 120 at 568. 125 Liebler, supra note 83, at 66. In Brown the Supreme Court acknowledged th at a public library is a place dedicated to quiet, to knowledge, and to beauty. See Brown v. Louisiana 383 U.S. 131, 142 (1966). In Pico a plurality held that a students right to receive ideas was infringed when school board members voted to have books removed from the junior and senior libraries that th ey considered to be anti-American, anti-Christian, antiSemitic, and just plain filthy. See Bd. of Educ. v. Pico 457 U.S. 853, 857-58 (1982). For a thorough discussion of Brown and Pico, see Chapter 2, infra notes 141-168 and accompanying text. 33

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Justice Stephen Breyers concurrence and Justice David Soute rs dissentaddressed Pico, with Justice Breyer only making a passing reference to the case .126 Relevant Articles Before the CIPA Was Adopted Several authors wrote about th e 1998 and 1999 versions of bills that were similar to the Childrens Internet Protection Act of 2000, but none did a legislative hi story of those bills. Although none of the bills were enacted, summaries of the authors works are included in this literature review because of the prior bills similarities to the CIPA.127 Three authors reviewed Sen. John McCains 1998 filtering bill, the Childrens Internet Protect Act,128 which, like the CIPA, would have required schools and libraries to install Internet filters to receive federal fundi ng for online technology. Two authors concluded that filtering is the least restrictive alternativ e to achieve the governments compelling interest of keeping material deemed harmful to minors away from juveniles.129 They argued that filters would be constitutional because they could be turned off for adults or installed on only some computers that minors would be limited to using.130 The third author questioned whether the bill was necessary since the legislative history indicated only anecdotal rather than statistical support showing material deemed inappropri ate was actually harmful to minors.131 126 Liebler, supra note 83 at 66-67. For an analysis of the Supreme Courts decision on the Childrens Internet Protection Act, see Chapter 7. 127 For the legislative history of the Childrens Internet Protection Act of 2000, see Chapter 6. 128 See S. 1619, 105th Cong. (2d Sess. 1998). 129 Kimberly S. Keller, Comment, From Little Acorns Great Oaks Grow: The Constitutionality of Protecting Minors from Harmful Internet Material in Public Libraries, 30 ST. MARYS L. J. 549, 608-09 (1999); Matthew Thomas Kline, III, First Amendment: 1. Limitin g Internet Access: a) Public Librarie s: Mainstream Loudoun v. Board of Trustees of Loudoun County Library, 14 BERKELEY TECH. L. J. 347, 370 (1999). 130 Keller, supra note 129, at 609; Kline, supra note 129, at 370. 131 See Christopher G. Newell, Chalk Talk: The Internet School Filtering Act: The Next Possible Challenge in the Development of Free Speech and the Internet, 28 J. L. & EDUC. 129, 137 (1999). Under S. 1619, 105th Cong. (2d 34

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In an article on the Childrens Internet Protection Act of 1999,132 which also was introduced by Sen. McCain, a law student argued that the bill was the first step down the slippery slope of arbitrary censorship133 and that the bill was flawed because it treated schools and libraries the same.134 Another commentator concluded that Congress jumped too quickly in trying to regulate the Internet before its full potential had been realized.135 Several commentators discussed library Internet filtering in general and argued that mandatory Internet filtering in public libraries is, or could be, constitutional. First Amendment scholar R. Polk Wagner stated that the evoluti on of more precise and a ccurate filters and the increase in sites rating themse lves could allow the government to mandate Internet filtering.136 A law student contended that, because of the dynamic nature of the Internet compared to the static nature of books, filtering is not equivalent to removing books from the shelf, but rather is an acquisition decision. Thus, it would fall unde r a librarians ed itorial discretion.137 Another law student stated that filtering would be constitu tional in public libraries if both filtered and unfiltered computers were made available to the public.138 However, under the CIPA, all library Sess. 1998), local school official s and librarians would determine what content was inappropriate. Id. at 136-37. Newell did not cite any sources of legislative history. 132 S. 97, 106th Cong. (1st Sess. 1999). 133 Elizabeth Shea, Note, The Childrens Internet Protection Act of 1999: Is Internet Filtering Software the Answer? 24 SETON HALL LEGIS. J. 167, 205 (1999). 134 Id. 135 Jennifer Zwick, Comment, Casting a Net Over the Net: Attempts to Protect Children in Cyberspace, 10 SETON HALL CONST. L. J. 1133, 1179 (2000). 136 See R. Polk Wagner, Essay: Filters and the First Amendment, 83 MINN. L. REV. 755, 777 (1999). For a discussion of more recen t filtering technology, see Chapter 3. 137 See Brent VanNorman, Comment and Note, The Library Internet Filter: On the Computer or in the Child? 11 REGENT U. L. REV. 425, 437 (1998/1999). 138 See Laurann Sage, Note, Mainstream Loudoun v. Board of Trustees: Restricting Internet Access in Public Libraries, 67 UMKC L. REV. 731, 743 (1999). However, under the E-rate all library computers must have filtered Internet access, includ ing staff computers. 35

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computers must have filtered Internet access, including staff computers, as the federal district court noted.139 Other commentators argued that mandatory Internet filters are not constitutional. Professor Wagner concluded that direct gove rnment filtering most likely would be unconstitutional in view of the limitations of technology of 1999, the time he was writing.140 In analyzing the limitations of filtering software and the possibility of content providers rating their own material, Wagner stated that librarians woul d be limited in making content decisions, if even permitted to do so at all, which he viewed as a disadvantage.141 In a 1998-99 law review article, Brent VanNorman, a law clerk, challenged the application of the forum doctrine to library holdings. He argued that a public library is not a traditional or limited public forum when choos ing content because librarians use editorial discretion in acquiring library materials.142 FCC attorney Mark Nadel said that if libraries were classified as a limited public forum for content selection, librarians would be forced to have compelling reasons for using content-based ju stifications to reject donations of books.143 In 2000, the author of this di ssertation analyzed the Commun ications Decency Act, the Child Online Protection Act and ke y Supreme Court cases that deal t with protecting minors from 139 United States v. Am. Library Assn 539 U.S. 194, 230-31 (2003). See Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 20 U.S.C. 9 134(f)(1)(A) and (f)(1)(B), 47 U.S.C. 254(h)(6)(B) and (h)(6)(C)). 140 See Wagner, supra note 136, at 758-59. See also Eileen M. Candia, Comment, The Information Super Highway Caution Road Blocks Ahead: Is th e Use of Filtering Technology to Preven t Access to Harmful Internet Sites Constitutional? 9 TEMPLE POL. & CIV. RTS. L. R. 85, 89, 108 (1999). Candia wrote that while protecting children from material deemed harmful on the Internet is a co mpelling government interest, the use of site blocking technology does not meet the exacting standard of precision required in achieving the narrow tailoring of a statute because it permits exclusio n of protected speech. Id. at 108. 141 See Wagner, supra note 136, at 777. 142 See VanNorman, supra note 137, at 430-32. 143 Nadel, supra note 74, at 1132. Because libraries have limited shelving and storage facilities, as well as acquisition policies, they do not accept all donations. Id. 36

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sexually explicit material. This author suggested that libraries adopt a three-pronged approach that would be less restrictive and more narro wly tailored than a mandatory filtering policy.144 First, privacy walls and screens could be us ed to avoid offending patrons and librarians.145 Second, a library card bar code could contain a yes/no field to indicate whether parents wanted their children to use filtered or unfiltered com puters. Third, librarians could install Internet filtering software that either could be turned off for adults or that was loaded onto only some of the computers.146 In her conclusion, this author emphasized the role of the parent, rather than the librarian or government, in determining whethe r minors should be allowed unfiltered Internet access.147 Similarly, other commentators have emphasi zed parental choice, arguing that parents, not librarians, are responsible for protect ing minors from material deemed harmful.148 Attorney Junichi Semitsu suggests that librarians should assi st parents by offering opti onal filters, but they should not become censors.149 Professor Catherine Ross, an attorney and historian, has argued that older minors should have access to information without parental consent.150 However, none of these options is availa ble to public libraries accep ting E-rate or LSTA funding.151 144 See Barbara H. Smith, To Filter or Not to Filter: The Role of Public Librarians in Determinin g Internet Access, 5 COMM. LAW & POLY 385, 419 (2000). 145 To ensure privacy, computer s could be housed in cubicles, and plastic screens could be placed over the monitor that would make images and text less visible to passersby. 146 Smith, supra note 144, at 419. 147 Smith, supra note 144, at 421. 148 See Junichi Semitsu, Note, Burning Books in Public Libraries: Internet Filtering Software vs. the First Amendment, 52 STAN. L. REV. 509, 545 (2000); Nunziato, supra note 99, at 164; Cassidy, supra note 79, at 472. 149 Semitsu, supra note 148, at 545. 150 Catherine J. Ross, An Emerging Right for Mature Minors to Receive Information, 2 U. PA. J. CONST. L. 223, 22425, 275 (1999). 151 See Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 20 U.S.C. 9134 (f)(1)(A) and (f)(1)(B), 47 U.S.C. 254 (h)(6)(B) and (h)(6)(C)), mandating that filtering software be installed on any computers connected to Intern et for those libraries receiving E-rate fu nding and Library Serv ices and Technology Act (LSTA) funding. 37

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Methodology The principal methodology for this project involv es legal research to analyze legislation, legislative histories and court cases. The author of this study will use lega l research methods to analyze the legislative histor y of the Childrens Internet Protection Act of 2000 and its predecessors, including preliminary bills, committee hearings and reports, legislative debates, bill sponsors statements and public law. The aut hor also will analyze court cases deciding the CIPA. All materials are availabl e online through Lexis or Thomas (the Library of Congress Web site), or in paper or microform format at the G overnment Documents Library at the University of Florida, Kansas State University, or the Univer sity of Rochester. Common paper and microform sources are available from the Congressional In formation Service (CIS), Government Printing Office (GPO), Congressional Recor d, and Statutes at Large. The author will use the Lexis computerized database and Thomas (the Library of Congress online database) to locate relevant le gislative documents and court cases on the Childrens Internet Protection Act. In addition, th e author will use Lexis and Thomas to locate federal court cases reviewing patrons access to public library buildings and content. The author will use the following key words in conducting database searches: Childrens Internet Protection Act, filter* w/p librar*, obs cenity + minors, sexually explicit + minors, variable obscenity + minors, harm* w/p mi nors; pornography + minors; pornography + children; library + access; libraries + access; library + minors; libraries + minors; library + access + minors; libraries + access + mi nors; library + children; library + access + children; libraries + children; and libraries + access + children. This dissertation also will rely on secondary source materials, in cluding books, library journals, social science journals, and legal periodicals, such as la w journals and law reviews. The 38

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secondary sources are available in hard copy or electronic form through the University of Florida, Kansas State University, or University of Rochester libraries. The author of this dissertation will use seconda ry sources to discuss the history and role of the public library. To find thes e sources, the author will run keyword searches in university library book catalogs, the Lexis law review data base, and the Wilson Sel ect library literature database. The keywords will be: public + library + mission; public + library + role; public + library + history; and public + library + a ccess. The author also will use the American Library Associations (ALA) Web site because the ALA is the worlds oldest and largest professional organization for librarians.152 The ALAs stated mission is To provide leadership for the development, promotion and improvement of library and informa tion services and the profession of librarianship in order to enhan ce learning and ensure access to information for all.153 The ALA also has adopted a bill of ri ghts for public libraries and patrons.154 The author of this dissertation will rely on studies evaluating filtering software in an effort to determine if the Childrens Internet Pr otection Act establishes a regulatory regime that is physically capable of doing what Congress intended for it to doto prevent minors from accessing online visual depictions that are cons idered obscene, child pornography, or harmful to minors. To find the filtering technology studie s, the author will use secondary sources. She will run keyword searches in the following data bases that contain social science studies: 152 The American Library Association (ALA) is the oldest and largest library association in the world, with members in academic, public, school, government, and special libraries. Am. Library Assn, Frequently Answered Questions, http://www.ala.org/Template.cfm?Section= alafaq&template=/cfapps/faq/faq.cfm (last visited July 20, 2009). 153 Am. Library Assn, Mission and Priorities http://ala.org/ala/aboutala/missionhistory/mission/index.cfm (last visited July 20, 2009). 154 AM. LIBRARY ASSN, LIBRARY BILL OF RIGHTS, available at http://www.ala.org/ala/aboutala/offices/oif/sta tementspols/statementsif/librarybillrights.cfm For a discussion of the history and role of public libraries, see Chapter 2. 39

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Academic Search Elite, Academic Search Premie r, FirstSearch, and Wilson Omnifile. The author also will use the Google search engine to find citations or links to other scientific studies on filtering technology. The keywords w ill be: Internet + filter + st udies; Internet + filter + software; Internet + filtering + software; Internet + filtering + software + studies Internet + filtering + software + evaluation; Internet + filter + children; Internet + filter + minors; and Internet + filter + pornography. The author of this dissertation will use seconda ry sources to find soci al science studies on the effects of pornography. For the purposes of this dissertation, pornography is defined as follows: nonviolent material, such as writings, phot ographs, movies or Internet sites, depicting sexual activity or erotic behavior between consenting adults in a way that is designed to arouse sexual excitement.155 To find the pornography studies, the author will run keyword searches in the following databases that contain social scie nce studies: Academic Search Elite, Academic Search Premier, FirstSearch, and Wilson Omnifile The author also will use the Google search engine to find citations or links to other scie ntific studies on pornography. The keywords will be: pornography + effects; pornography + effects + children; pornography + effects + minors; 155 The definition of pornography is based on the definition in Blacks Law Dictionary, which reads: material (such as writings, photographs, or movies) depicting sexual activity or erotic behavior in a way that is designed to arouse sexual excitement. BLACKS LAW DICTIONARY (8th ed. 2004). The author of th is dissertation has added the terms Internet sites, nonviolent and b etween consenting adults to Blacks definition for clarification and to distinguish consensual nonviolent pornography from nonconsensual and/or violent pornography. The U.S. Supreme Court has never defined the term pornography, which is a vague term because it includes both protected sexual material and unprotected sexual mate rial, such as obscenity and rape. See ROBERT TRAGER, JOSEPH RUSSOMANO & SUSAN DENTE ROSS, THE LAW OF JOURNALISM AND MASS COMMUNICATION 384 (2007). The term pornography does not have a common definition or meaning. See DON R. PEMBER & CLAY CALVERT, MASS MEDIA LAW 12 (2005). The Supreme Court defined obscenity in 1973 in Miller v. California 413 U.S. 15, as works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value. Miller 413 U.S. at 24. Indecency, as defined by the Federal Communications Commission in 1975, is language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs. FCC v. Pacifica Found. 56 F.C.C.2d 94, 97 (1975). However, the FCC in 2001 revised the definition of indecency to consider context and examine how explicit or graphic the material is, whether the material dwells on sexual activities, and whether the material is meant to shock or sexually arouse the audience. FCC Enforcement Policy Regarding Broadcast Indecency, 16 F.C.C.R. 7999, 8002-03 (2001). 40

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pornography + online + effects; pornography + Internet + effects; pornography + online + effects + minors; pornography + Internet + e ffects + minors; pornography + online + effects + children; and pornography + In ternet + effect s + children. Although the CIPA applies to public libraries and schools, an analysis of the laws applicability to schools is beyond the scope of this dissertation. Outline of Dissertation This research project on the Childrens Internet Project Act will be organized into eight chapters. Ch. 1: Internet Access in Public Libraries. This chapter serves as an introduction to the dissertation and provides an overvie w of topics that will be covered. This chapter summarizes the Childrens Internet Protection Act of 2000 and discusses the purpose and relevance of the dissertation. This chapter reviews relevant lite rature on mandatory Internet filtering in public libraries, explains the authors metho dology, and provides a su mmary of chapters. Ch. 2: The Public Library and the First Amendment. This chapter provides an overview of the mission and role of the American public library. Chapter Two examines the public forum doctrine as it applies to public libraries and the right to receive information in a public library. This chapter discusses minors access to inform ation in public libraries. Chapter Two examines First Amendment theory in the context of manda tory Internet filtering in public libraries. Ch. 3: Internet Filtering Technology. To help readers understand the theoretical and practical issues involved with Internet filteri ng, this chapter discusses how filtering technology works, including the strengths and weaknesses of filtering technology. Expert analysis in secondary sources is used for this chapter. Ch. 4: The Protection of Minors from Material Deemed Harmful. This chapter provides an overview of American societys changing view of childhood over time, the parental role in 41

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childrearing, and the laws treatme nt of sexually explicit material and minors access to sexually explicit material. Chapter Four discusses social science research on th e effects of pornography. Ch. 5: Federal Attempts at Protecting Minors from Online Material Deemed Harmful. This chapter examines the Communications Decency Act (CDA) and the Child Online Protection Act (COPA). The CDA and COPA we re the only two statutes that Congress passed in an effort to prevent minors from accessing sexually explic it content on the Intern et before enacting the Childrens Internet Protection Act of 2000. This ch apter examines the court cases that reviewed the Communications Decency Act and the Child Online Protection Act. Ch. 6: The Legislative History of the Ch ildrens Internet Protection Act. This chapter discusses the legislative history of the Childrens Internet Protection Act to try to determine Congressional intent in enacting the law. An understanding of the legislative history of previous bills is important to this study because the Childr ens Internet Protection Act is based on the text of these previous bills, as well as on House and Senate hearings and reports on these bills. Ch. 7: Court Decisions on the Children s Internet Protection Act. This chapter analyzes the federal district courts and the Suprem e Courts opinions on th e Childrens Internet Protection Act. Ch. 8: Conclusion: Bridging the Gap Between Law and Technology. This chapter draws on information from the preceding chapters to an alyze the Childrens Inte rnet Protection Act of 2000 in the context of First Am endment theory, the mission and role of the American public library, Internet filtering technology, and le gal precedence. The author will compare the Childrens Internet Protection Act with the status of filtering technology to try to determine whether it is technologically f easible for the so-called filter ing and blocking software to accomplish what Congress is asking of it. This ch apter will also evaluate whether the CIPA is 42

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43 consistent with our current understanding of the ha rm to minors of sexually oriented content, the role of libraries, and the mandate of the First Amendment.

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CHAPTER 2 THE PUBLIC LIBRARY AND THE FIRST AMENDMENT Introduction Librarians and, at least, Firs t Amendment scholar Rodney Smolla believe the mission of the public library has been to support the educa tional, socialization and information needs of society, to promote self-education, and to satisfy the tastes of the popular culture.1 Public libraries often have provided open and equal access to all materials and to all users,2 with the goal of combating censorship and thus preservi ng everybodys individual right to choose their own reading and viewing materials.3 Public libraries in the United States have existed for more than 150 years. The nations first large tax-supported municipa l library, the Boston Public Libr ary, opened in 1854 and served as a model for future public libraries in thr ee major ways: by providing open access to all individuals, by allowing all reside nts to borrow materials, and by designing a separate childrens reading room.4 The number of public libraries grea tly expanded during the 1890s and early 1900s after philanthropist Andrew Carnegie began donating millions of dollars for the 1 See RICHARD E. RUBIN, FOUNDATIONS OF LIBRARY AND INFORMATION SCIENCE 244 (2000); Rodney Smolla, Freedom of Speech for Libraries and Librarians, 85 LAW LIBR. J. 71, 73 (1993) (Librarians must fight those who seek to destroy the critical role of th e library as the free and open marketpl ace of ideas, turning it instead into an arbiter of conventional mainstr eam tastes and sensibilities.). 2 See THE BOWKER ANNUAL LIBRARY AND BOOK TRADE ALMANAC 243 (Dave Bogart ed., 44th ed. 1999). But see Daniel J. Boorstin, The Indivisible Community, in LIBRARIES AND THE LIFE OF THE MIND IN AMERICA 119 (1977), explaining that many early librarians were torn between the preservation of books by protecting them from the public and the diffusion of ideas, or making books accessible. In addition, lib rarians were concerned over the dress and demeanor of patrons, particularly the laboring cla sses. who might soil the books and were unlikely to show them the respect that they were entitled to. Boorstin at 119. 3 See BRUCE A. SHUMAN, FOUNDATIONS AND ISSUES IN LIBRARY AND INFORMATION SCIENCES 122 (1992). 4 See JEAN KEY GATES, INTRODUCTION TO LIBRARIANSHIP 72 (1990). The Boston Public Librar y opened in a former schoolhouse in 1854 and moved to its present site in 1895. Id at 3. See also EVELYN GELLER, FORBIDDEN BOOKS IN AMERICAN PUBLIC LIBRARIES, 1876-1939 at 72 (1984) and Boston Public Library, A Brief History and Description, http://www.bpl.org/general/history.htm (last visited July 20, 2009). For a history of libraries in America, see generally C. SEYMOUR THOMPSON, EVOLUTION OF THE AMERICAN PUBLIC LIBRARY: 1653-1876 (1952) and LOUISE ROBBINS, CENSORSHIP AND THE AMERICAN LIBRARY: THE AMERICAN LIBRARY ASSOCIATIONS RESPONSE TO THREATS TO INTELLECTUAL FREEDOM: 1939-1969 (1996). See also GATES at 47-90. 44

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construction of municipal libraries across the na tion, according to library scholar and historian Evelyn Geller.5 In most states, public libraries today are supported by taxes, primarily local property taxes.6 Sources of funding for libraries also can come from federal and state appropriations, intangible taxes, government lotteries, and private family, foundation and corporate funds.7 A local board of trustees oversees most public libraries. The board determines the overall purposes, objectives a nd policies of the libra ry; provides budgetary advice; and works with public officials, library asso ciations and local residents to provide quality library services.8 According to the American Library Association, trustees also are expected to support librarians in resisting an individuals or groups censorship attempts.9 Under the Childrens Internet Protecti on Act of 2000, public li brariesand most schools10receiving federal funding are required to implement an Internet safety policy11 and install filtering technology on all computers connected to the Intern et to block images that are 5 GELLER, supra note 4, at 40. 6 See SHUMAN, supra note 3, at 78-80. See also RUBIN, supra note 1, at 231. 7 See SHUMAN, supra note 3, at 75-80. 8 GATES, supra note 4, at 140. See also AMERICAN LIBRARY TRUSTEE ASSOCIATION, FIVE WAYS ALTA CAN HELP YOUR LIBRARY, available at http://www.ala.org/ala/m grps/divs/alta/links/PDF 5waysaltacanhelpyou.pdf 9 AMERICAS LIBRARY AND TRUSTEES ADVOCATES, ETHICS STATEMENT FOR PUBLIC LIBRARY TRUSTEES, available at http://www.ala.org/ala/mgrps/divs/alta/links/ethicsstatement.pdf 10 The Federal Communications Commission concluded that for a school to be eligible for universal service discounts, a school must meet the statutory definition of an elementary or secondary school found in the Elementary and Secondary Education Act of 1965, must not operate as a for-profit business, and must not have an endowment exceeding $50 million. Both pu blic and non-public elementary and secondary schools that meet these criteria will be eligible to receive discounts on eligible services. See FCC, Frequently Asked Questions on Universal Service and the Sn owe-Rockefeller Amendment (released July 2, 1997), http://www.fcc.gov/learnnet/ (last visited July 20, 2009). 11 20 U.S.C. 9134(f)(1)(A) and (B), 47 U.S.C. 4(h)(5)(A) and (h)(6)(A). For a discussion of the CIPA, see infra Chapter 6, pp. 281 to 286. For an explanation of the LSTA and E-rate programs, see Chapter 1, supra notes 36 to 41 and accompanying text. 45

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obscene, involve child pornography, or are considered harmful to minors.12 To understand the role of the public library in providing inform ation to patrons, it is important to analyze the mission of the public library, how the First Amendment public foru m and right to receive ideas and information doctrines apply to public libraries, and the role the public library has played in making information accessible to minors. The Mission and Role of the Public Library Even before the emergence of the Internet public libraries faced varying degrees of trouble with censorship, comm unity control, and funding.13 During the latte r part of the nineteenth century, intellectual freedom was not yet a goal of ta x-funded public libraries. In the 1880s, most librarians focused on the occupational and cultural needs of patrons and did not oppose moral censorship, though mostly out of f ear of losing their position, according to Geller.14 As the profession of librarianship becam e more established in the early 1900s, public librarians began to embrace neutrality and impar tiality. However, in 1917, during a time of war and crisis, national values of patriotism sometimes led to policies endorsing censorship. Librarians either voluntarily advocated, or were expected to advocate, societal values.15 In the 1920s, public library trustees16 and librarians joined forces to oppose attempts at censorship by 12 See Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 20 U.S.C. 9134 (f), 47 U.S.C. 254 (h)(6)), mandating that filtering software be insta lled on all computers connected to the Internet for those libraries receiving E-rate funding and Library Services and Technology Act (LSTA) funding. 13 SHUMAN, supra note 3, at 75. 14 GELLER, supra note 4, at 28-29. 15 GELLER, supra note 4, at 184. Library trustees and community o fficials expected the suppo rt of common societal values during war time. 16 Most public libraries are administer ed by a board of trustees, which determines the policies of the library, provides budgetary advice, and works with public official s, library associations and citizens to provide quality library services. GATES, supra note 4, at 140. 46

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the local government and community.17 During the 1930s, an ideology of freedom emerged in the library profession.18 The American Library Association (ALA) began promoting mans freedom to seek the truth where and how he will in the 1930s, according to Jean Key Gates, the author of a leading te xtbook on librarianship.19 During the 1930s, the American Library Association began developing a set of resolutions emphasizing the importance of providing a vari ety of viewpoints in library materials and challenging censorship.20 The ALA formally adopted a bill of rights in 1939, according to Gates.21 The ALAs Library Bill of Rights, which was amended several times in the following decades, states that libraries should cha llenge censorship in the fulfillment of their responsibility to provide in formation and enlightenment 22 and libraries should cooperate with all persons and groups concerned with resisting abridgment of free expression and free access to ideas.23 17 GELLER, supra note 4, at 185. 18 GELLER, supra note 4, at 143, 156; ROBBINS, supra note 4, at 151. Supreme Court Justice David Souter cited Geller in his dissenting opinion in United States v. American Library Assn, in emphasizing the evolution of freedom of choice in accessing library materials in the twentieth century. See United States v. Am. Library Assn 539 U.S. 194, 238 (2003) (Souter, J., dissenting). 19 GATES, supra note 4, at 90 (citing David K. Berninghausen, The History of the ALA Intellectual Freedom Committee 27 WILSON LIBRARY BULLETIN 813 (1953)). 20 See AM. LIBRARY ASSN, LIBRARY BILL OF RIGHTS, available at http://www.ala.org/ala/aboutala/offices/oif/sta tementspols/statementsif/librarybillrights.cfm and http://www.ala.org/ala/aboutala/offices/oif/state mentspols/statementsif/librarybillofrights.pdf The Library Bill of Rights was adopted in 1948. For a discussion of the evolution of the Library Bill of Rights, see also OFFICE FOR INTELLECTUAL FREEDOM OF THE AMERICAN LIBRARY ASSN, INTELLECTUAL FREEDOM MANUAL 5-17 (5th ed., 1996). 21 GATES, supra note 4, at 87. 22 AM. LIBRARY ASSN, LIBRARY BILL OF RIGHTS, supra note 20, at art. III. The Library Bill of Rights was adopted on June 18, 1948, and amended on Feb. 2, 1961 and on Jan. 23, 1980 by the ALA Council. See also RUBIN, supra note 1, at 160 (reprint of Library Bill of Rights). 23 See AM. LIBRARY ASSN, LIBRARY BILL OF RIGHTS, supra note 20 at art. IV. See also RUBIN, supra note 1, at 160 (reprint of Library Bill of Rights). 47

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In 1953, the American Library Associati on and the American Book Publishers Association jointly prepared and adopted the F reedom to Read Statement, which they have since revised several times.24 The statement stresses the import ance of reading in a democratic society25 and states that librarians and publishers ha ve the responsibility of protecting peoples freedom to read, providing access to a dive rsity of ideas, and opposing censorship.26 Library scholar Bruce Shuman said that a public libra rys ongoing goal should be the preservation of everybodys right to choose, and th at librarians should not give in to community pressure to remove materials from the shelves.27 In addressing minors access to public library materials, the ALAs Library Bill of Rights beginning in 1996 stated that a pers ons right to use a public libr ary should not be denied or abridged because of age.28 Many librarians have argued passionately for intellectual freedom, which they interpret to mean that individuals in a pluralistic society ha ve the freedom and right to think, read, view and experience what they want to, without interference from others.29 24 AM. LIBRARY ASSN, FREEDOM TO READ STATEMENT, available at http://www.ala.org/ala/aboutala/offices/oif/stateme ntspols/ftrstatement/freedomreadstatement.cfm and http://www.ala.org/ala/aboutala/offices/oif/statement spols/ftrstatement/freedomtoreadstatement.pdf. The Freedom to Read Statement was adopted on June 25, 1953 and revised on January 28, 1972, on January 16, 1991, on July 12, 2000, and on June 30, 2004, by the ALA Council and the AAP Freedom to Read Committee. See also RUBIN, supra note 1, at 159. 25 FREEDOM TO READ STATEMENT, supra note 24, which states, The power of a democratic system to adapt to change is vastly strengthened by the freedom of its citizens to choose widely from among conflicting opinions offered freely to them. See also RUBIN, supra note 1, at 159. 26 See FREEDOM TO READ STATEMENT, supra note 24. In part, the statement reads, It is in the public interest for publishers and librarians to make available the widest diversity of views and expressions, including those that are unorthodox, unpopular, or considered dangerous by the majority. See also RUBIN, supra note 1, at 161. 27 SHUMAN, supra note 3, at 122. 28 See LIBRARY BILL OF RIGHTS, supra note 20. The Library Bill of Rights was adopted on June 18, 1948, and amended on February 2, 1961, and on January 23, 1980, with the inclusion of age reaffirmed on January 23, 1996, by the ALA Council. Art. V reads: A persons right to use a library should not be denied or abridged because of origin, age, background, or views. 29 See SHUMAN, supra note 3, at 120-21. See also MICHAEL GORMAN, OUR ENDURING VALUES 27 (2000). 48

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The mission of the public library today, as it wa s in most of the twentieth century, is to support the educational, social and information needs of societ y, to promote self-education, and to satisfy the tastes of the popular culture, according to library scholar Richard Rubin.30 Gates has written that the function of the public library is to provide materials to meet its constituents needs for information, education, self-rea lization, recreation, a nd cultural growth.31 Gates added that the role of most public librarians is to as sist patrons in carrying out their duties as citizens and community members by organizing and interpreting information for patrons and guiding them in the use of materials.32 Rubin, who also authored a key textbook on library and information science, said librarians tend to hold common values, including commitment to service, respect for truth a nd the search for truth (inclu ding protecting and defending many points of view), and tolerance for seve ral perspectives on any given subject.33 Rubin stated that public libraries continue to serve as multi-purpose social institutions for both self-improvement and entertainment.34 Author W.J. Murison wrote that li braries are places where readers can fulfil [sic] any personal, prof essional or political aspiration35 Rubin wrote that one role of public libraries is to provide healthy entertainm ent, which is carried out, in part, with the availability of books on fiction, romance and travel.36 30 RUBIN, supra note 1, at 244. 31 GATES, supra note 4, at 146. 32 GATES, supra note 4, at 146. 33 RUBIN, supra note 1, at 248-61. 34 RUBIN, supra note 1, at 258. But see Boorstin, supra note 2, at 120, stating that librarians in the late 1800s and early 1900s disagreed as to whether public libraries existe d for the purpose of instruction or entertainment or both. 35 W.J MURISON, THE PUBLIC LIBRARY 85 (3d ed. 1988). 36 RUBIN, supra note 1, at 258. 49

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Libraries are central to political and social freedom, as well as intellectual freedom, according to library scholars Walt Crawford and Michael Gorman, who wrote, A society without uncensored libraries is a society open to tyranny.37 In analyzing the role of the public library, Crawford and Gorman stated, Libraries exist to acquire, give access to, and safeguard carriers of knowledge and information in all form s and to provide instruction and assistance in the use of the collections to which their users have access.38 Historian and Librarian of Congress Emeritus Daniel Boorstin said that the great American library movement was founded, in part, on individual autonomy, where libra rians encourage patrons to help themselves in pursuing independence, self-gove rnance, and specialized interests.39 Patrons using the Internet in public librari es have been able to find a variety of information online, including intellectual, political, social and entertainment materials.40 However, commentators disagree as to whether the use of Internet fi lters in public libraries is an acquisition decision or censorshi p. To understand their arguments, it is important to first understand the concept of ac quisitions or collections. The terms acquisition, collection and s election, which are used synonymously, refer to a librarys objectives and methods in choosing materials to in clude in its holdings. Typically, acquisition polices are general in nature. For example, the American Library Associations Bill of Rights reads: Books and other library resources should be provided for 37 See WALT CRAWFORD & MICHAEL GORMAN, FUTURE LIBRARIES: DREAMS, MADNESS AND REALITY 11 (1995). 38 Id. at 3. 39 See Boorstin, supra note 2, at 126, 130. 40 About 73% of public libraries provided Internet access in 1998. See Press Release, Am. Library Assn, New Report Shows More Libraries Connect to the Internet; Access Still Limited (Nov. 1998) available at http://bubl.ac.uk/archive/journals/alawon/v07n149.htm From 2006 to 2008, the percent of libraries providing Internet access remained constant at 99%. See AM. LIBRARY ASSN, THE STATE OF AMERICAN LIBRARIES 5 (April 2007); Bertot et al., supra note 1. 50

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the interest, information, and en lightenment of all people of th e community the library serves. Materials should not be excluded because of the origin, background, or views of those contributing to their creation.41 To help public libraries develop an acquisi tion policy, the Public Library Association, a division of the ALA, provides links on its Web si te to sample policies from a variety of public libraries in the United States.42 While the objectives of the acq uisition policies typically are general, the policies a ll emphasize selecting books and other re sources that reflect a variety of viewpoints and address patron inte rest. The lists of objectives al so include other factors to consider, such as the cost of materials, the ease of acquiring the materials, and the maintenance of a balanced collection of tr aditional and contemporary works.43 For example, a Wisconsin sample policy reads: The purpose of the _________ Public Librar y is to provide all individuals in the community with carefully sele cted books and other materials to aid the individual in the pursuit of educ ation, information, research, pleasure, and the creative use of leisure time. 44 A Louisiana library policy includes a pa ragraph on the principles of collection development: Calcasieu Parish Public Library su pports the individual's right to access ideas and information repres enting all points of view. To this end, the library welcomes and solicits patron suggestions, comments and ideas about the coll ection and its development. The Collection Development Coordinato r and staff of the Library in making selections should do so in a manner based upon principle 41 FREEDOM TO READ STATEMENT, supra note 24. 42 See PUB. LIBRARY ASSN, BEST PRACTICES IN PUBLIC LIBRARIES, available at http://www.ala.org/ala/shadows/pla/resources/bestpractices.cfm 43 Id. 44 See SMALL LIBRARY COMMITTEE OF THE WISCONSIN ASSOCIATION OF PUBLIC LIBRARIANS, SAMPLE LIBRARY POLICIES FOR THE SMALL PUBLIC LIBRARY (2d ed., revised by David L. Polodna), available at http://www.owlsweb.info/L4L/policies/VIII.asp 51

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rather than personal opinion, r eason rather than prejudice, and judgment rather than censorship.45 Librarians typically adhere to professiona l standards and local acquisition development policies when they purchase materi als for the librarys collections.46 Librarians also use selection aids, such as bibliogr aphies and review journals, to acquire materials that meet the librarys collection development criteria.47 Librarians sometimes delegate their selection decisions to third-party vendors, who acquire print and video resources for the library based on the librarys collection development criteria.48 A public librarys collection development criteria typically reflect the librarys evaluation of the materials quality and patrons demand for material.49 In contrast, when librarians select Internet f iltering software, they would not be able to base their choices on the librarys collection de velopment policies because filtering software is proprietary.50 Librarians would not be able to determ ine if commercial filters met their needs because software companies do not disclose their standards.51 Therefore, librarians would have 45 CALCASIEU PARISH PUBLIC LIBRARY, COLLECTION DEVELOPMENT POLICY, available at http://www.calcasieu.lib.la.us/CollectionDevelopment.htm The mission statement of th e library reads as follows: The Calcasieu Parish Public Library serves all the people who live in the parish with materials, information, and services through a network of branches that are conveniently located and easy to use. The library strives to help people make informed decisions, enjo y their free time, and continue learning all their lives. The Library Board and Staff are committed to providing high quality, cost effective, equitable service that me ets the needs of all parish residents. 46 Am. Library Assn v. United States, 201 F. Supp. 2d 401, 421 (E.D. Pa. 2002). 47 Id. 48 Id. 49 Id. at 462. 50 Id. at 462-64. See also Legislative Proposals to Protect Children from Inappropriate Materials on the Internet : Hearing on H.R. 3783, H.R. 774, H.R. 1180, H.R. 1964, H.R. 3177, and H.R. 3442 before the Subcomm. on Telecomm., Trade and Consumer Prot ection of the H. Comm. on Commerce 105th Cong. 40 (Sept. 11, 1998) (statement of Jerry Berman, executive director for the Ce nter for Democracy and Tech nology, referring to S.1619, the Internet School Filtering Act). 51 See Legislative Proposals to Protect Children from Inappropriate Materials on the Internet supra note 50. 52

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no way of knowing exactly which co ntent has been blocked in any given category, as the district court noted in its opinion on the Chil drens Internet Pr otection Act of 2000.52 Prior to the passage of the Childrens Inte rnet Protection Act of 2000, library scholar Walt Crawford stated that almost all libraries did filter library materials by choosing some materials over others, which he sa id was a common selection practice.53 When a public library buys only 5% of what is published in a given year, it is considered selection and not censorship, according to Crawford.54 He has contended that same appr oach should be used for Internet access, with librarians offering se lective access to Internet materials. Crawford argued that Internet access is a finite resource because Internet bandwidth is limited,55 and libraries have a set number of computers connected to the Internet and have to pay for computers, Web servers and online storage.56 Open access to the Internet and World Wide Web is almost the antithesis of selection, Crawford wrote. The Web and Internet are full of j unk: bad information, deliberate lies, and some freely available pornography.57 52 Am. Library Assn v. United States, 201 F. Supp. 2d 401, 462-64 (E.D. Pa. 2002). For a discussion of Internet filtering technology, see Chapter 3. For a discussion of the court cas es deciding the Childrens Internet Protection Act, see Chapter 7. 53 WALT CRAWFORD, BEING ANALOG 225 (1999). 54 Id. See also Brent VanNorman, Comment & Note, The Library Internet Filter: On the Computer or in the Child? 11 REGENT U. L. REV. 425, 430-32 (1998/1999). 55 Bandwidth is the total capacity (volume and speed) of a wire or the maximum rate at which data can flow between computers. Bandwidth also refers to the amount of data that can be transmitted in a fixed period of time, e.g. how fast data flows through the path that it travels to a computer. Bandwidth is usually measured in kilobits, megabits or gigabits per second. The amount of bandwidth a Web server requires depends on the applications that will be running on the Web server. Large filesand audio and video filesuse more bandwidth than text files, thus slowing down the system for other users. An online communications path usually consists of a succession of links, each with its own bandwidth, which can be sl ower than others in the succession. PETER BUCKLEY & DUNCAN CLARK, THE ROUGH GUIDE TO THE INTERNET 18, 30, 316 (2008). See also BANDWIDTH FAQ in University of Wisconsin-Eau Claire LTS Online Help Documentation, http://www.uwec.edu/Help/Internet/bandwidth.htm (last visited July 20, 2009); BANDWIDTH 2008, in Encyclopedia Brittanica Online (Chicago: Encyclopedia Brittanica, Inc., 2008), http://www.search.eb.com.lp.hs cl.ufl.edu/eb/article-280194 (last visited July 20, 2009). 56 CRAWFORD, supra note 53, at 225-26. 57 CRAWFORD, supra note 53, at 225. 53

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The American Library Association distingu ishes between selection and censorship, stating, No library can make everything av ailable, and selection decisions must be made. Selection is an in clusive process, where the library affirmatively seeks out materials which will serve its mission of providing a broad diversity of point s of view and subject matter. By contrast, censorship is an exclusive process, by which individuals or institutions seek to deny access to or otherwise suppress ideas and information because they find those ideas offensive and do not want others to have access to them.58 Whether Internet filtering can be consider ed acquisition or cens orship may depend on how the libraries initially set up their computers, according to Crawford. He argued that selection occurs when libraries have always used filtering mechanisms and thus have not removed content that was once available. In contrast, censorship o ccurs when libraries first have had full access to the Internet and then restrict th at access through the use of filters.59 When material that was once available has been removed based on content rath er than age or wear, that removal could be considered a form of censorship, Crawford stated.60 In other media, librarians do not selectively delete portions of the material once they choose to acquire it.61 For example, librarians would not go through past copies of local newspapers and bl acken out advertisements for adult movies or provocative personal ads62 or selectively remove sections of microfiche, audio or video materials. 58 Am. Library Assn, Intellectual Freedom and Censorship Q & A, http://www.ala.org/ala/aboutala/offices/oif/basics/ifcensorshipqanda.cfm (last visited July 20, 2009). 59 CRAWFORD, supra note 53, at 226. 60 CRAWFORD, supra note 53, at 226. 61 Other media examples include books, magazines, CDs, DVDs, and audio and visual tapes. 62 CRAWFORD, supra note 53, at 227. 54

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One law professor suggested that Internet filtering could be an effective tool for librarians, as long as filteri ng use was voluntary. In a 2001 article two years before the U.S. Supreme Court upheld the CIPA,63 Bernard Bell wrote: [L]ibraries could assert that Internet filters may further public libraries' mission of helping the readers negoti ate a vast array of materials on subjects that vary greatly in quality. Librarians have traditionally assisted patrons in negotiating a wealth of materials on various subjects. .There is little reason, however, to prevent those who wish to access the Internet without filters from doing so if filters are justified only as a means for assisting patrons in winnowing material.64 Conversely, other commentators have argued that Internet filtering, if mandated by the government, is censorship, re gardless of the original set up of the computers.65 Some commentators have argued that the use of mandatory Internet filters in public libraries is a form of censorship that is both misguided and ineffective.66 Author Kiera Me ehan argued that mandatory filtering constitutes censorship, stating, Such censorship will severely hinder the primary function of public libraries: to provid e free, public access to books, knowledge, and the Internet. .Forcing libraries to install filtering 63 United States v. Am. Library Assn 539 U.S. 194 (2003) (upholding the CIPA, which requires lib raries receiving E-rate and LSTA funding to implement an Internet use policy and install filters on all computers connected to the Internet.) 64 Bernard Bell, Filth, Filtering, and the First Amendment: Rumina tion on Public Libraries Use of Internet Filtering Software, 53 FED. COMM. L.J. 191, 224-25 (2001). 65 See generally Richard J. Peltz, Use the Filter You Were Born With: The Unconstitutionality of Mandatory Internet Filtering for the Adult Patrons of Public Libraries, 77 WASH. L. REV. 397, 397-400 (2002); Barbara A. Sanchez, Note, United States v. American Library Association: The Choice Between Cash and Constitutional Rights, 38 AKRON L. REV. 463, 487-88 (2005). See also Junichi P. Semitsu, Note, Burning Cyberbooks in Public Libraries: Internet Filtering So ftware vs. The First Amendment, 52 STAN. L. REV. 509, 533-35 (2000); J. Adam Skaggs, Note Burning the Library to Roast the Pig? Online Pornography and Internet Filtering in the Free Public Library, 68 BROOKLYN L. REV. 809, 809 (2003); Steven E. Merlis, Preserving Internet Expression While Protecting Our Children: Solutions Following Ashcroft v. ACLU, 4 NW. J. TECH. & INTELL. PROP. 117, 128 (2005), (arguing when the government mandates filters in public settings (such as public libraries) significant censorship issues arise); Kiera Meehan, Note Installation of Internet Filters in Public Libraries: Protection of Children and Staff vs. the First Amendment, 12 B.U. PUB. INT. L.J. 483, 484, 503 (2003). 66 Skaggs, supra note 65, at 809. 55

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software, by either government mandate or intimidation, impedes the library's right to determin e what materials to acquire.67 The American Library Associat ion views Internet filtering as censorship, rather than acquisition.68 In 1997, the ALA passed an anti-filtering re solution, stating that the use of filtering software to block constitutionally protected speech violates the Library Bill of Rights.69 The controversy over the use of mandatory filt ering software in public libraries involves not only the mission of the public library and whether filtering c onstitutes censorship, but also how public forum and the right to receive info rmation doctrines apply to the public library. The Applicability of Public Forum and the Right to Receive Doctrines to Public Libraries Although legal commentators disagree on the applicability of First Amendment public forum and right to receive information doctrines to public libraries,70 between 1992 and 2002 67 Meehan, supra note 65, at 484, 503. 68 At the top of its Web page on Internet filtering, which provides information on the CIPA and on Internet filtering options, the ALA posted the censorship provision from the Library Bill of Rights: Libraries should challenge censorship in the fulfillment of their responsibility to provide information and enlightenment. See Am. Library Assn, Filters and Filtering http://www.ala.org/ala/aboutala/offices/oif/ifissues/filtersfiltering.cfm (last visited July 20, 2009). 69 AM. LIBRARY ASSN, RESOLUTION ON THE USE OF FILTERING SOFTWARE IN LIBRARIES, available at http://www.ala.org/ala/aboutala/offices/oif/sta tementspols/ifresolutions/resolutionuse.cfm 70 See Dawn C. Nunziato, The Death of the Public Forum in Cyberspace, 20 BERKELEY TECH. L.J. 1115, 1163 (2005) (stating that the public forum doctrine needs to be reexamined in light of ne w technology); Barbara A. Sanchez, supra note 65, at 486-87 (arguing that the Supreme Court ha s, in a variety of contexts, referred to a First Amendment right to receive information and ideas and In ternet access in public libraries could reasonably be construed to be a public forum); Aaron Jacobson, Note, United States v. American Library Association: Software Filters, Free Speech, and the Shrinking Public Forum, 38 U.C. DAVIS L. REV. 1345, 1361 (2005) (arguing that Internet terminals in public libraries are a traditional public forum); Raizel Liebler, Institutions of Learning or Havens for Illegal Activities: How the Supreme court Views Libraries, 25 N. ILL. U. L. REV. 1, 74 (2004) (arguing that public libraries are the modern version of a traditional public forum); Larissa Piccardo, Note, Filtering the First Amendment: The Constitutionality of Internet Filters in Public Libraries Under the Childrens Internet Protection Act 41 HOUS. L. REV. 1437, 1459 (2004) (arg uing that public libraries and Intern et access within those libraries are a public forum); Leah Wardak, Note, Internet Filters and the First Amendment: Public Libraries After United States v. Am. Library Association 35 LOY. U. CHI. L.J. 657, 724-25 (2004) (arguing The government took an affirmative step to designate Internet access as a public forum when it announced that th e reason libraries provide Internet access is to give their patrons another medium for resear ch. Wardak did not elaborat e further on public forum doctrine as it applied to Internet access); Bell, supra note 64, at 207 (arguing that the public library is at the very least a limited public forum for those desiring physical access to obtain information and might even be a traditional public forum for receiving information); Semitsu, supra note 65, at 533-35 (2000) (arguing that the Internet deserves limited public forum status); Mark S. Nadel, The First Amendment Limitations on the Use of Internet Filtering in 56

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three federal courts held that public libraries are, at the ve ry least, a limited public forum.71 The three courts also applied the right to receive in formation doctrine to public libraries. However, in 2003 a U.S. Supreme Court plurality upheld the Child rens Internet Protection Act, stating that Internet access in public libraries is not a traditional public fo rum or a designated public forum.72 To understand the Courts rationa le, it is important to explai n how the Court developed the concept of public forum doctrine. In a seri es of cases decided between 1939 and 1992, the Supreme Court recognized three types of forums : a traditional public forum, a limited or designated public forum, and a nonpublic forum.73 A traditional public forum is one that histori cally has been open for public discourse and debate74 and does not require offi cial government designation.75 Examples include streets, parks, sidewalks, and town squares.76 In a traditional public forum, the government may not prohibit all communicative activity and must su bject any content-based speech restrictions to the strict Public and School Libraries: What Content Can Libraries Exclude? 78 TEX. L. REV. 1117, 1132 (2000) (arguing public library buildings are a limited public forum, but library contentinclude online contentis a nonpublic forum); VanNorman, supra note 54, 430-32 (arguing that a public libra ry is not a traditional public forum because patrons cannot give speeches and arguing that the library is not a limited public forum because no expressive activities have been admitted). 71 Kreimer v. Bureau of Police 958 F. 2d. 1242 (3d Cir. 1992); Mainstream Loudoun v. Bd. of Trustees of Loudoun County 24 F. Supp. 2d. 552 (E.D. Va. 1998 ); Am. Library Assn v. United States, 201 F. Supp. 2d 401 (E.D. Pa. 2002). But see United States. v. Am. Library Assn 539 U.S. 194, 205-06 (2003), in which the Supreme Court stated that Internet access in public lib raries is neither a traditional public forum nor limited or designated public forum. For a discussion of public forum doctrine, see infra notes 73-90 and accompanying text. 72 See United States v. Am. Library Assn, 539 U.S. at 205-06 (2003). The Court emphasized that public forum doctrine historically has applied to speakers, rather than listeners or recipients of the communication. For a summary of the Supreme Courts opinion on Internet access in public libraries, see supra notes 170-171 and accompanying text. For an analysis of the Supreme Courts opinion, see Chapter 7. 73 See Hague v. CIO, 307 U.S. 496, 515 (1939); Carey v. Brown, 447 U.S. 455, 461 (1980); Widmar v. Vincent 454 U.S. 263, 269, 270-71, 277 (1981); Perry Ed uc. Ass'n v. Perry Local Educators' Ass'n 460 U.S. 37 (1983); Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788 (1985); Intl Socy for Krishna Consciousness v. Lee 505 U.S. 672 (1992). 74 Cornelius, 473 U.S. at 800 and Perry, 460 U.S. at 45. 75 See Hague 307 U.S. at 515 and Perry, 460 U.S. at 45. 76 Hague 307 U.S. at 515; Perry, 460 U.S. at 44-45; United States v. Am. Library Assn, 539 U.S. at 202. 57

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scrutiny testthat is, the regulation must be necessary to serv e a compelling state interest and it must be narrowly drawn to achieve that end.77 However, the government may enforce time/place/manner regulations that are content-neut ral as long as the three-part intermediate scrutiny standard is met: the regulations must serve a significant government interest, be narrowly tailored to achieve that interest, and leave open ample alternative channels of communication.78 Under the time/place/manner test, a narr owly tailored regulation need not be the least-restrictive or least-intrusive means of furthering the governments interest as long as the regulation promotes a substantial governme nt interest that would not be achieved as effectively without the regulation.79 In the second type of forum, a limited or designated public forum, the government opens its public property for specific expressive ac tivity or discussion of specific subjects80 or for use by certain groups, such as opening public university meeting rooms for registered student groups81 and municipal theat ers for performers.82 The Supreme Court has held that in a limited 77 Perry, 460 U.S. at 45 (citing Carey v. Brown, 447 U.S. 455, 461 (1980)). 78 Perry, 460 U.S. at 45 (citing U.S. Postal Serv. v. Counc il of Greenburgh Civic Assns, 453 U.S. 114, 132 (1981); Consol. Edison Co. v. Pub. Serv. Comm'n, 447 U.S. 530, 535-536 (1980); Grayned v. City of Rockford 408 U.S. 104, at 115 (1972); Cantwell v. Connecticut, 310 U.S. 296 (1940); Schneider v. State, 308 U.S. 147 (1939)). 79 Kreimer v. Bureau of Police 958 F.2d 1242, 1264 (1992) (citing Ward v. Rock Against Racism 491 U.S. 781, 797 (1989)). 80 Perry, 460 U.S. at 45-46. See also City of Madison Joint Sch. Dist. v. Wisc. Employment Relations Commn 429 U.S. 167, 175 (1976), in which the Supreme Court held that school board meetings were open to employees as well as the public, stating, Where the Stat e has opened a forum for direct citizen involvement, it is difficult to find justification for excluding teachers. 81 Widmar v. Vincent 454 U.S. 263, 269, 270-71, 277 (1981). The Supreme Court held that state regulation of speech must be content neutral and a st ate university's refusal to grant stude nt religious group access to university facilities was unjustifiable, content-based exclusion of relig ious speech as the facilities were generally open to other student groups. According to the Court opinion, [T]he campus of a public university, at least for its students, possesses many of the characteristics of a public forum. Widmar, 454 U.S. at 269. See also Perry, 460 U.S. at 4547. 82 Se. Promotions, Ltd. v. Conrad 420 U.S. 546 (1975). In a per curiam opinion expressing the view of five members of the Supreme Court, the Court held that a city board had engaged in prior restraint by refusing to grant the use of community facilities to a theater group wanting to perform the musical Hair. The Court said the board 58

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public forum, content-based restrictions also must meet the strict scrutiny standard, but contentneutral restrictions are permissibl e. In explaining the parameters of the limited public forum, the Court held that, [a]lthough a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum. Reasonable time, place, and manner regulat ions are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.83 The third type of forum, a nonpublic forum,84 generally is not open for public use because the property has an intended primary pur pose that is not consistent with public use85 and has not been designated a public forum by the government.86 Examples of a nonpublic forum include airport terminals,87 military bases,88 prisons and jails,89 and teacher mailboxes.90 Case AnalysisThe Application of Public Forum and Right to Receive Information Doctrines to Public Libraries In 1992, prior to Internet access in most public libraries, a federal appellate court applied public forum and the right to receive information doctrines to a municipal library. Richard did not have constitutionally required procedural safeguard s in place to decide on usage requests only based its decision on outside reports that the play involved nudity and was obscene. See also Perry, 460 U.S. at 45-47. 83 Perry, 460 U.S. at 46 (citing Widmar v. Vin cent, 454 U.S. 263, 269-70 (1981)). 84 Intl Socy for Krishna Consciousness v. Lee 505 U.S. 672, 679 (1992). Ju stice William Rehnquist, who wrote the majority opinion, used the term nonpublic fora to de scribe airport terminals. Lik e the Court of Appeals, we conclude that the terminals are nonpublic fora and that the regulation reasonably limits solicitation. Id. at 679. The International Society for Krishna Consciousness, a religious group, had invoked the First Amendment in challenging the law that prohibited solicitation of money and the distribution of literature inside airport terminals. The law allowed the solicitation of money and distribution of literature on sidewalks outside the airport terminals. Id. at 67475. 85 Perry, 460 U.S. at 46. 86 Lee, 505 U.S. at 678-79. 87 Id. at 680-81. 88 Greer v. Spock 424 U.S. 828, 838-39 (1976). 89 Adderley v. Florida 385 U.S. 39, 41 (1966) and Jones v. N.C. Prisoners Labor Union 433 U.S. 119 (1977). 90 Perry, 460 U.S. at 49. 59

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Kreimer, a homeless man with poor hygiene, want ed access to the library to read. However, library patrons and staff said Kreimers body odo r, staring, and loud ta lking disrupted other patrons and staff.91 In the holding of Kreimer v. Bureau of Police ,92 the court found that the local government in Morristown and Morris Townshi p, New Jersey, had made the library a limited public forum for the right to receive information, but not for personal expression, such as making speeches.93 In determining whether a venue is a lim ited public forum or a nonpublic forum, the Kreimer court considered three factors: 1) gover nment intent in opening a non-traditional forum for expressive activity; 2) the ex tent of use granted by the govern ment in allowing patrons access to the library; and 3) the nature of the forum and its compatibility with expressive activity.94 First, the court said the local governments intent was to ope n the library during regularly scheduled hours to all members of the public for specific purposesfor expressive activity, 91 Kreimer v. Bureau of Police 958 F. 2d. 1242, 1247 (3d Cir. 1992). 92 Id. 93 Id. at 1256-63. The Kreimer Court emphasized the right to receive doctrine when stating, The recognition of a constitutional right protecting public access to information and ideas is simply the threshold of our analysis. Id. at 1255. In addressing the hygiene issue, the Third Circuit of the U.S. Court of Appeals upheld that the librarys policy requiring that patrons have a non-offensive body odor. The court held that the policy was narrowly tailored to meet a significant interest: The Library's goa l is served by its requirement that its patrons have non-offensive bodily hygiene, as this rule prohibits one patron from unreasonably interfering with other patrons' use and enjoyment of the Library; it further promotes the Library's interest in main taining its facilities in a sanitary and attractive condition. Id at 1264. The court said the policy wa s narrowly tailored to achieve a signifi cant government interest because the rule prevented one patron from interfering with other patrons use of the library and promoted the librarys interest in keeping its facilities clean and attractive. Id. at 1264. Other library policies mandated that patrons engage in activities associated with the use of a public library, such as reading, studying and using library materials, and prohibited loitering, food and drink, and noisy and boisterous activities. See also Kim R. Helper, Note, Kreimer v. Bureau of Police for Morristown: The Sterilization Of The Local Library 23 STETSON L. REV. 521 (1994). 94 Kreimer, 958 F. 2d. at 1259-62. 60

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namely the communication of the written word. The Court said that the library could only exclude patrons after they vi olated the librarys rules.95 Second, in addressing the extent of use, th e court noted that the government does not need to open a limited or designated public forum to the public at large, but rather can open it to a specific class of people or for the discussion of certain subject matter.96 In the Kreimer case, the court found that the librarys policies clearly state that the library is open to the public for specific purposes onlyreading, studying, and usi ng library materials. The local government does not need to grant permission to each person w ho wishes to enter the library, but the library can ask patrons to leave if they violate the rules.97 Third, in addressing the nature of the forum, the court stated that a public library is a limited public forum, despite seemingly having c onflicting characteristics with such a forum. The court said the purpose of a public library is to pursue knowledge through reading, writing and quiet contemplation and t he exercise of other oral and interactive First Amendment activities is antithetical to the nature of the Library.98 However, the court reasoned that the library only needed to allow the public to exerci se First Amendment rights that are consistent 95 Id. at 1259. The Supreme Court did not elaborate further on government intent, stating, We could make a more definitive determination concerning the extent of use if, for example, the record included the Library's charter. However, the record is barren of this information, and we are bound to decide the case on the basis of the facts before the district court. We also point out that in its le tter of July 14, 1989, to the ACLU-NJ, the Library indicated that access to it was granted to all. Id. at 1260. 96 Id. at 1260. The court cited two Su preme Court decisions in r eaching this conclusion: Widmar v. Vincent, 454 U.S. 263, 267 (1981), which held that a university is a de signated public forum, but it does not need to make its facilities equally available to students and nonstudents or grant open access to campus grounds and buildings, and Perry Educ. Assn v. Perry Local Educators Assn, 460 U.S. at 45 (1983), which held that [a] public forum may be created for a limited purpose such as use by certain groups or for the discussion of certain subjects. 97 Kreimer v. Bureau of Police 958 F. 2d. 1242, 1260 (3d Cir. 1992). 98 Id. at 1260-61. 61

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with the governments intent in designating th e library as a limited public forum and that are consistent with the nature and purpose of the library.99 In 1998 in Mainstream Loudoun v. Board of Trustees of Loudoun County,100 a federal district court judge in Virginia stated that a library boards sexual harassment policy mandating Internet filtering on all computers was content-based and therefore subject to the strict scrutiny standard.101 Judge Leonie Brinkema, a former libraria n, also held that library buildings and Internet access inside the libraries were limited public fora.102 Although not binding in other jurisdictions and presumably invalidated by the S upreme Courts 2003 decision to uphold the Childrens Internet Protection Act,103 the two related Mainstream Loudoun cases104 were the first court cases that fully applied First Amendment principles to Internet access in public libraries. In the first case, decided in April 1998, Judge Brinkema denied the defendant libra boards request for dismissal, stating that material factual issues remain. ry 105 In the second case, decided in November 1998, Judge Brinkema i ssued a summary judgment in favor of the 99 Id. at 1261. 100 Mainstream Loudoun v. Bd. of Trustees of Loudoun County 24 F. Supp. 2d. 552 (E.D. Va. 1998). 101 Id. at 563. 102 Id. 103 United States v. Am. Library Assn 539 U.S. 194 (2003). 104 Mainstream Loudoun v. Bd. of Trustees of Loudoun County 2 F. Supp. 2d 783 (E.D. Va. 1998) and Mainstream Loudoun v. Bd. of Trustees of Loudoun County 24 F. Supp. 2d. 552, 570 (E.D. Va. 1998). 105 Mainstream Loudoun, 2 F. Supp. 2d at 790. The material fact issues incl uded the boards justification for the policy, the Internet sites blocked by X-Stop, and the degree of the boards knowledge and control over the Web sites that X-Stop blocks. The library board had moved to dismiss individual board members and to dismiss the case for failure to state a claim. Judge Brinkema granted the motio n to dismiss individual board members as defendants. She also granted in part the motion to dismiss for failure to state a claim. In granting the motion, she said that the board was entitled to legislative immunity for adopting the policy but not for enforcing the policy. The library board contended it was immune from litigation under the Communications Decency Act of 1996, which granted absolute immunity to good faith users of filtering software. See Mainstream Loudoun, 24 F. Supp. 2d. at 561, in which the library board requested that the court reconsider its deci sion that the board was not immune from litigation. Judge Brinkema said that the CDA provided defendants from immunity from action for damages, but did not grant immunity to defendants when plaintiffs sought declaratory and injunctive relief. Mainstream Loudoun, 24 F. Supp. 2d. at 561. 62

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plaintiffs, made up of a local nonprofit organization, its members and individual county residents. The plaintiffs had sought a permanen t injunction prohibiting the library board from mandating the use of Internet filters on all computers.106 In 1997, the Board of Trustees for Loudoun C ounty Library adopted a policy on sexual harassment that stated that Internet access would be provided to library patrons subject to several restrictions. First, the policy stated that patrons would not be allowed to access e-mail, chat rooms, or pornography. Second, the policy required that site-bl ocking software be installed on all computers to block access to Web sites cont aining child pornography, obscenity, and material deemed harmful to juveniles.107 A Loudoun-County non-profit organization and a group of Loudoun County residents challenged th e site-blocking provision of the sexual harassment policy. The library installed X-Stop, a commercial filtering software product. Because the software was proprietary, librarians did not know the methods used to block Web sites or which sites were blocked. Patrons wishing to view a blocked Web site could submit a written request asking that the site be unblocked and stating the reason they wanted access to the specific site. A librarian would then review the Web site to determine if it should be unblocked under the librarys policy.108 106 See Mainstream Loudoun, 24 F. Supp. 2d. at 570. Judge Brinkema also issued a summary judgment in favor of the intervenor Web sites, who opposed the filtering policy. In addition, she issued a summary judgment in favor of the Mainstream Loudoun Library Board on an issue of standing. 107 Id. at 556. The policy also contained two other restrictions: 1) all library computers would be installed near and in full view of library staff; and 2) patrons would not be permitted to access pornography and, if they did so and refused to stop, the police may be called to intervene. Id. However, the plaintiffs did not challenge these provisions. 108 Id. 63

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Judge Brinkema issued a permanent injunction, which prohibited the Loudoun County Library Board from implementing the filtering policy.109 In the first Loudoun case, the library board had argued that the First Amendment did not apply because the use of Internet filtering was an acquisition decision rather than a removal decision.110 It wasnt until the second Loudoun case that the board argued that libraries are nonpublic fora and therefore subjec t only to the intermediate scrutiny standard. Under the intermed iate scrutiny standard, the policy only has to be reasonably related to an important government interest.111 The plaintiffs, who opposed the Internet filtering policy, argued that the impl ementation of the policy was a removal decision, similar to blacking out selected portions of a set of encyclopedias.112 The plaintiffs did not address public forum doctrine. Judge Brinkema held that Internet access in public libraries is a limited public forum113 and the implementation of the filtering policy was a removal decision.114 In addressing the library boards policy as a re moval decision, she wrote, The Internet therefore more clos ely resembles plaintiffs analogy of a collection of encyclopedias from which defendants have laboriously redacted portions d eemed unfit for library patrons. As such, the Library Boards act ion is more appropriately characterized as a removal decision.115 109 Id. 110 For a discussion of acquisition and removal concepts, see supra pp. 50 to 52. 111 Mainstream Loudoun, 24 F. Supp. 2d. at 561-62. See supra notes 73-90 and accompanying text for a discussion of public forum doctrine. 112 Mainstream Loudoun 2 F. Supp. 2d at 793-95. For a discussion of acquisition policies, s ee supra pp. 50-52. For the American Library Associations definition of censorship, see supra note 58 and accompanying text. 113 Mainstream Loudoun, 24 F. Supp. 2d. at 563. 114 Mainstream Loudoun 2 F. Supp. 2d at 794-95. 115 Id. 64

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Brinkema held that the librar y boards policy was subject to strict scrutiny analysis [b]ecause the Policy at issue limits the rece ipt and communication of information through the Internet based on the cont ent of that information.116 In holding the library boards policy to the strict scrutiny standard, Judge Brinkema stated that the policy would have to serve compelling government interests, be necessary to further t hose interests, and be narrowly drawn to achieve those interests.117 She stated that the policy violated adults constitutionally protected speech because it would have required filters on all computers, even those used by adults.118 Judge Brinkema stated that less rest rictive methods were available for enforcing a sexual harassment policy than mandating the installation of filteri ng software to block online obscenity, child pornography and material deemed harmful to mino rs. She suggested the use of privacy screens and the installation of filtering soft ware on only some of the computers.119 In holding that the Loudoun County libraries were limited public fora, Brinkema applied the three factors the Kreimer court considered: government in tent, the extent of use of the library that the government has allowed patrons, and the nature of the forum.120 First, Brinkema held that the government intended to create a publ ic forum when it author ized its public library system and when it adopted and reaffirmed a resolu tion stating that its "pri mary objective [is] that the people have access to all avenue s of ideas" in a variety of media forms.121 In applying the intent factor to the Internet, Brinkema wrot e that the government intended to designate the 116 Mainstream Loudoun, 24 F. Supp. 2d at 561-62 (citing Perry Educ. Assn v. Perry Local Ed ucators Assn, 460 U.S. 37, 45 (1983)). 117 Id. at 564-65. 118 Id. at 570. 119 Id. at 562, 567. 120 Id. at 562-63 (citing Kreimer v. Bureau of Police 958 F. 2d. 1242, 1259-61 (3d Cir. 1992)). 121 Mainstream Loudoun, 24 F. Supp. 2d at 562-63. 65

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Loudoun County libraries as public fora for the limite d purposes of the expressive activities they provide, including the receipt a nd communication of information through the Internet. This includes both the right to provide information and the right to receive information.122 Second, in analyzing extent of use of the libr ary that the government has allowed patrons, Brinkema said the government opened the librar y for use by the Loudoun County public at large and has significantly limited its own discretion to restrict access, thus indicating that it has created a limited public forum. Brinkema stated that the Loudoun Library Board of Trustees has declared that library access and use will not be restricted nor denied to anyone because of age, race, religion, origin, background or views.123 Third, in reviewing the nature of the forum, Brinkema said that the library explicitly offers expressive activity through its Internet ac cess. While the nature of the public library would clearly not be compatible with many forms of expressive ac tivity, such as giving speeches or holding rallies, we find that it is compatible with the expressive activity at issue here, the receipt and communication of informati on through the Internet, she wrote.124 In the Mainstream Loudoun ruling, Brinkema determined that the installation of mandatory of Internet filtering in public librar ies was not an acquisition decision, but rather was a removal decision.125 As a removal decision, mandatory fi ltering constituted a content-based decision because the filters prevented patrons from accessing material based on it subject matter, she said. Therefore, the strict scrutiny test applied to Internet filters, Brinkema said.126 She stated 122 Id. at 563. 123 Id. 124 Id. 125 Id. at 561. 126 Id. at 564-65. 66

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that Internet access in public lib raries constituted a designated or limited public forum because the right to receive information through th e Internet was an expressive activity.127 Four years after the Loudoun decision, the federal district co urt for the Eastern District of Pennsylvania in 2002 struck down the Childrens Internet Protection Act.128 The CIPA mandated that public libraries and most schools receiving federal funding im plement an Internet safety policy and install filtering software on all comput ers connected to the Internet to block visual depictions that are obscene, contain child pornography, or are deemed harmful to minors.129 In its opinion, the district court stated that the right to receive information and ideas is fundamental to a free society.130 In applying the right to receive inform ation doctrine to libraries, the judge wrote, The right to receive information is vigorously enforced in the context of a public library.131 The court vacillated between labeling Internet access in a public library as a limited (or dedicated) public forum and the modern version of a public forum,132 but spent more time likening online access to a traditional public forum.133 The court first determined that the proper forum for analysis was Internet access provided by libraries, rather than the entire collection of print and electronic resources.134 The court then stated that the government has created a 127 Id. at 563. 128 Am. Library Assn v. United States, 201 F. Supp. 2d 401 (E.D. Pa. 2002). 129 See Childrens Internet Protection Act, Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 20 U.S.C. 9134(f), 47 U.S.C. 254(h)(6)). 130 Am. Library Assn v. United States 201 F. Supp. 2d at 451 (citing Stanley v. Georgia, 394 U.S. 557, 564 (1969)). 131 Id. at 466. For a complete discussion of the courts opinion, see Chapter 7. 132 Id. at 409, 457, 466. Th e CIPA mandated that public libraries and most schools receiving certain types of federal technology funds implement an Internet safety policy and install Internet blocking technology on all computers. 133 Id. at 466-71. 134 Id. at 456. 67

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designated public forum when it provid es Internet access in a public library.135 The court also said that Internet access in public libraries p romotes First Amendment values in an analogous manner to traditional public fora such as streets, parks and sidewalks, in which content-based restrictions on speech are always subject to strict scrutiny.136 However, a U.S. Supreme Court plurality reversed the lower courts decision, stati ng, Internet access in public libraries is neither a traditional nor a des ignated public forum.137 The U.S. Supreme Court has heard only thr ee cases involving libraries, with each case decided roughly twenty years apart. The firs t case, decided in 1966, involved physical access to public libraries.138 The second case, decided in 1982, i nvolved the removal of books in public school libraries.139 The third case, decided in 2003, involved Internet access in public libraries.140 All three cases resulted in plurality opinions. In Brown v. Louisiana,141 decided in 1966 during the Ci vil Rights era, the Court overturned the convictions of fi ve African-American men who we re convicted of breach of peace after staging a peaceful and silent protes t against segregation in the Clinton, Louisiana 135 Id. (citing Mainstream Loudoun v. Bd. of Trustees of the Loudoun County Library, 24 F. Supp. 2d 552, 563 (E.D. Va. 1998)); cf. Kreimer v. Bureau of Police, 958 F.2d 1242, 1259 (3d Cir. 1992) (holding that a public library is a limited public forum). 136 Am. Library Assn v. United States, 201 F. Supp. 2d at 466. For a complete discussion of the courts opinion, see Chapter 7. 137 United States v. Am. Library Assn 539 U.S. 194, 205-06 (2003). The Court emphasized that public forum doctrine historically has applied to speakers, rather than listeners or recipients of the communication. For a summary of the Courts decision, see infra notes 169-187. For a complete discussion of the Courts opinion, see Chapter 7. 138 Brown v. Louisiana 383 U.S. 131 (1966). 139 Bd. of Educ. v. Pico 457 U.S. 853 (1982). 140 United States v. Am. Library Assn 539 U.S. 194 (2003). 141 Brown, 383 U.S. at 131. 68

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branch of the Audubon Public Library.142 The five men stayed in th e library for ten or fifteen minutes and refused to leave when librarians asked them to do so.143 African-Americans were not allowed to use the libraries or the red bookmobile that served Whites.144 They were only allowed to use the blue bookmobile, which served Negroes. 145 The Court issued four opinions: the plurality, authored by Justice Abe Fortas and joined by Chief Justice Earl Warren and Justice William Douglas; two separate concurrences by Justices William Brennan, who concurred in the judgment, and Byron White, who concurred in the result; and one dissent, authored by Justice Hugo Black and joined by Justices Tom Clark, John Marshall Harlan and Potter Stewart. In writing the plurality opinion, Justi ce Fortas stated that the convictions violated the mens First and Fourteenth Amendment rights. He said the gove rnment may regulate the use of libraries, but it cannot do so in a discriminatory manner. In referri ng to the role of the pu blic library, he wrote, It is an unhappy circumstance that the locus of these events was a public librarya place dedicated to quiet, to kno wledge, and to beauty.146 Although Justice Fortas statement did not directly refer to the right to receive information doctrine, his reference to knowledge implies the right to receive information and ideas in public libraries. The concurring opinions did not specifically address the mission or role of the public library, but Justice William Brennans concurrence emphasized the petitioners First Amendment rights of speech, petition and assembly.147 He briefly mentioned the c oncept of a forum when he 142 Id. 143 Id. at 137-38. 144 Id. at 137. The plurality opinion stated, It is a permissibl e inference that no Negroes used the branch libraries. 145 Id. At the time, segregated libraries were commonplace in the South. See Liebler, supra note 70, at 9. 146 Brown v. Louisiana 383 U.S. 131, 142 (1966). 147 Id. at 146-47 (Brennan, J., concurring). 69

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wrote, Public buildings often provide a forum for more traditional forms of First Amendment activity, such as verbal expression.148 Justice Byron Whites concu rrence focused on the lack of equal protection under the Constitution. He said that it would be unlikely that whites would have been asked to leave after only ten or fifteen minutes.149 On behalf of the dissent, Justice Hugo Black wrote that the Constitution does not prevent state government from enacting laws that would prevent sit-ins or stand-ins. He indirectly referred to the public librarys role when he wrot e, Short of physical violence, petitioners could not have more completely upset the normal quiet functioning of the [l]ibrary.150 However, Justice Blacks comments do not address the right to receive information in a public library. Outside of Justice Brennans brief referen ce to public buildings providing a forum,151 none of the opinions addressed public forum doctrine. Two decades later, a Supreme Court plurality used the right to receive information doctrine in a 1982 case involving a public school library. In Board of Education v. Pico,152 the Court voted 5-4 in holding that a school board violated the Firs t Amendment when it ordered the removal of books from a junior high school li brary and senior high school library. The school board described the books as "anti-American, anti-Christian, anti-[Semitic], and just plain filthy."153 The Court issued seven separate opinions: the plurality, two concurrences and four 148 Id. at 147. 149 Id. at 150-51 (White, J., concurring). 150 Id. at 163 (Black, J., concurring). 151 Id. at 147 (Brennan, J., concurring). 152 Bd. of Educ. v. Pico 457 U.S. 853 (1982). 153 Pico 457 U.S. at 857. The nine books in the High School library were: Slaughter House Five by Kurt Vonnegut, Jr.; The Naked Ape by Desmond Morris; Down These Mean Streets by Piri Thomas; Best Short Stories of Negro Writers, edited by Langston Hughes; Go Ask Alice of anonymous authorship; Laughing Boy by Oliver LaFarge; Black Boy by Richard Wright; A Hero Ain't Nothin' But A Sandwich by Alice Childress; and Soul On Ice by Eldridge Cleaver. The book in the Junior High School library was A Reader for Writers edited by Jerome Archer. 70

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dissents. Justice William Brennan wrote the plurality opinion and was joined by Justices Thurgood Marshall and John Paul Stevens. Justice Harry Blackmun joined the plurality in part, concurred in the judgment and al so wrote a concurring opinion.154 Justice Byron White, who concurred in the judgment, authored the s econd concurring opinion. Chief Justice Warren Burger, Justice William Rehnquist, Justice Lewis Powell, Jr., and Justice Sandra Day OConnor each wrote separate dissenting opinions. The plurality emphasized the right to receive in formation and ideas, stating that the right to receive ideas follows ineluctably from the sender's First Amendment right to send them and is a necessary predicate to the recipient's meaningful exercise of his own rights of speech, press, and political freedom. In authoring the plurality opinion, Justice Brennan wrote, [T]he special characteristics of the school library make that environment especially appropriate for the recognition of the First Amen dment rights of students.155 Justice Brennan also made a distinction between the school curr iculum and books in the school library. He stated that school boards have the right to determine curriculum and ha ve a legitimate role to play in determining school library content, but they cannot remove books because they disagree with the ideas in those books.156 Justice Brennan referred to public libr aries and the right to receive ideas and information when he wrote, A school library, no less than any other public library, is a place dedicated to quiet, to knowle dge, and to beauty (where) 'students must always remain free to 154 Pico, 457 U.S. at 855, 858. 155 Id. at 867. 156 Id. at 869-71. 71

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inquire, to study and to evaluate, to gain new ma turity and understanding.' The school library is the principal locus of such freedom.157 Justice Brennan said that the school board could have followed the boards previouslyestablished policy for reviewi ng books. Under the policy, the school superintendent would appoint a committee to study any objections to books and then make a recommendation.158 Brennan found it problematic that the school boa rd ignored the advice of literary experts, librarians and teachers within the school system, and publications that rate books for junior and senior high school students.159 Justice Brennan also said the Pico case would have been a very different case if the school board had employe d established, regular, and facially unbiased procedures for the review of controversia l materials, but the board had not done so.160 The two concurring opinions, though agreeing with the judgment, focused on different aspects. Justice Byron White, who concurred in the judgment only, said he would have remanded the case so that the trial court could resolve f actual issues, including th e boards reasoning for removing the books. White argued that the Supr eme Court plurality we nt beyond the factual issue at hand to extensively discuss a constituti onal issue when it was not necessary for the Court to do so. The plurality seemed co mpelled to go further and issue a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library, White wrote.161 157 Id. at 868-69 (citing Brown v. Louisiana 383 U.S. 131, 142 (1966) and Keyishian v. Bd. of Regents 385 U.S. 589, 603 (1967)). 158 Pico, 457 U.S. at 857, 874-75. 159 Id. at 874. 160 Id 161 Id. at 883-84 (White, J., concurring). 72

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Justice Harry Blackmun concurred in part with Justice Brennan and concurred in part in the judgment only. He emphasized the wrongful suppr ession of ideas rather than the right to receive information. He wrote, The Court therefore made it clea r that imposition of ideological discipline was not a proper undertaking for school authorities . As the plurality notes, it is di fficult to see how a school board, consistent with the First Amendm ent, could refuse for political reasons to buy books written by De mocrats or by Negroes, or books that are anti-American in th e broadest sense of that term. 162 The dissenting opinions emphasized the importa nce of local contro l of education and stated that local school official s should be able to make deci sions about library holdings and curriculum.163 Chief Justice Warren Burger, who was joined in his dissent by Justices Lewis Powell, William Rehnquist and Sandra Day OConnor, said that local officials and not federal judges or teenage students should administer schools. He argued that the First Amendment right to receive ideas does not carry with it the ob ligation for the government to provide access to these ideas.164 In a second dissenting opinion, Justice Lewis Po well, Jr. stated that school boards have a responsibility to parents and citi zens of the district and theref ore should determine educational policy. He said there is no First Amendment right to receive ideas in public schools, which he viewed as a new constitutional right stated by the plurality.165 Justice OConnor, who also authored an individual dissent, said she did not agree with the school boards action in removing all of the books, but added that the board, serv ing in its role as e ducator, is the proper 162 Id. at 877-78 (Blackmun, J., concurring). 163 Id. at 889-93 (Burger, C.J., dissenting), 909-10 (Rehnquist, J., dissenting), 921 (OConnor, J., dissenting). 164 Pico, 457 U.S. at 885-88 (Burger, C.J., dissenting). 165 Id. at 893-95 (Powell, J., dissenting). 73

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government entity to make such a decision. She said the board has the right to remove books from the school library as long as it does not prevent students from reading or discussing them.166 Justice William Rehnquist, who was joined in his dissent by Chief Justice Burger and Justice Powell, said the right to receive information in sc hools is not supported by Court precedence.167 He contrasted school librar ies from public libraries, which is directly on point for this dissertation. Justice Rehnquist disa greed with the decision reached in Pico, but his statements supported the public librarys mission in providing access to a wide variety of information and ideas, the very information and ideas that filtering software limits. Rehnquist wrote, Unlike university or public librari es, elementary and secondary school libraries are not designed for freewheeling inquiry; they are tailored, as the public school curric ulum is tailored, to the teaching of basic skills and ideas.168 Nearly twenty years later, in 2003, the Supreme Court voted 6-3 to uphold the Childrens Internet Protection Act of 2000, reve rsing a district courts decision. 169 Because this case is discussed in Chapter 7, only a brief summary is included here. Five se parate opinions were issued: the plurality, two concurrences, and two dissents. Chief Justice William Rehnquist, who authored the plurality opinion, stated that forum doctrine did not apply an d wrote that Internet 166 Id. at 921 (OConnor, J., dissenting). OConnors statement implied, but did not explicitly state, that students could obtain copies of the removed books elsewhere, and then read and discuss the books on school property. 167 Id. at 887-88 (Rehnquist, J., dissenting). 168 Id. at 915. 169 See United States v. Am. Library Assn 539 U.S. 194 (2003). Chief Ju stice William Rehnquist wrote the plurality opinion and was joined by Justices Sandra Day OConnor, Antonin Scalia and Clarence Thomas. Justices Stephen Breyer and Anthony Kennedy wrote separate concurring opinions. Justices John Paul Stevens and David Souter wrote separate dissents, with Justice Ruth Bader Ginsburg joining in Justice Souters dissent. For a detailed discussion of the case, see Chapter 7. 74

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access in public libraries is neither a tra ditional nor a designated public forum.170 Chief Justice Rehnquist said Internet access in public lib raries is not a traditional public forum because it has not been immemorially held in trust for use by the public for communication. He also said that Internet access in public libraries is not a limited public forum because the government did not intentionally take ac tion to designate it as such.171 The plurality opinion did not address the right to receive ideas and inform ation doctrine and did not refer to Brown .172 Neither did the Chief Justice mention any of the opinions issued in Pico including his own.173 The Court reversed the judgment of the federal district court,174 stating that enforcement of the CIPA did not violate the First Amendment175 and was within Congress spending power.176 The plurality also found that prior restraint doctrine do es not extend to collection decisions made by public libraries.177 The Court plurality reasoned that a library's decision to use filtering software is not a restraint on private sp eech, but rather a collection decision, and public 170 See United States v. Am. Library Assn, 539 U.S. at 205-06. The Court emphasized that public forum doctrine historically has applied to speakers, rather than listeners or recipients of the communication. For a discussion of public forum doctrine, see supra notes 73-90 and accompanying text. 171 United States v. Am. Library Assn, 539 U.S. at 205-07. 172 Brown v. Louisiana 383 U.S. 131 (1966). See United States v. Am. Library Assn, 539 U.S. at 539, 198-214 (plurality opinion). 173 Bd. of Educ. v. Pico 457 U.S. 853, 904-20 (1982) (Rehnquist, J., dissenting). See United States v. Am. Library Assn, 539 U.S. at 198-214 (plurality opinion). 174 United States v. Am. Library Assn, 539 U.S. at 194, revg Am. Library Assn v. United States 201 F. Supp. 2d 401 (E.D. Pa. 2002). For an analysis of the district court and Supreme Court cases, see Chapter 7. 175 United States v. Am. Library Assn, 539 U.S. at 199. 176 Id. at 203, 205. 177 Id. at 209. For a discussion of acquisition policies, s ee pp. 50 to 52. For the Amer ican Library Associations definition of censorship, see supra note 58 and accompanying text. 75

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libraries are not required to add material to their collections just because the material is constitutionally protected.178 In a concurring opinion, Justice Stephen Breyer agreed with the plurality that Internet access in public libraries is not a public forum. He briefly mentioned the right to receive doctrine, stating that the Court has long recognized the right to receive information and ideas.179 Justice Breyer stated that he would apply heightened scrutiny, rather than strict scrutiny or rational basis, in analyzing the CIPA.180 In a separate concurre nce, Justice Anthony Kennedy wrote that there is little to this case because the CIPAs disabling provision would allow libraries to disable filtering software and unblock specific Web sites for adults.181 Kennedy said that although the CIPA is not unconstitutional on its face, an adult could challenge the statute on an as applied basis if the filtering could not be removed in a timely manner.182 The justices writing the dissenting opinions di d not address public forum doctrine, but stated that the CIPA violated the First Amendment. Justice J ohn Paul Stevens argued that the CIPA constitutes a significant prior restraint because some libraries procedures would make it difficult for patrons to have the filtering disabled.183 Justice Stevens wrote that most of the 178 United States v. Am. Library Assn, 539 U.S. at 209. 179 Id at 216-17 (Breyer, J., concurring). 180 Id at 216-17. Breyer said that height ened scrutiny supplements strict scrutiny with an approach that is more flexible but nonetheless provides the legislature with le ss than ordinary leeway in light of the fact that constitutionally protected speech is at issue. Id. at 218. For an analysis of the plurality, concurring and dissenting opinions, see Chapter 7. 181 Id. at 214 (Kennedy, J., concurring). 182 Id. at 214-15. 183 Id. at 224 (Stevens, J., dissenting). Stevens wrote, It is as though the statute required a significant part of every library's reading materials to be kept in unmarked, locked rooms or cabinets, which could be opened only in response to specific requests. Id 76

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filtered content was constitutionally protected speech,184 and the Government could not suppress lawful speech as the m eans to suppress unlawful speech.185 Justice David Souter argued that mandatory filtering constitu tes censorship because filtering technology blocks access to electronic resources that the library has already acquired.186 Souter wrote, There is no good reason, then, to tr eat blocking of adult enquiry as anything different from the censors hip it presumptively is. For this reason, I would hold in accordan ce with conventional strict scrutiny that a library's practice of blocking would violate an adult patron's First and Fourteenth Amendment right to be free of Internet censorship.187 Case AnalysisHistorical Overview of the Right to Receive Ideas and Information The U.S. Supreme Court had stated repeatedly that the First Amendment protects the right to receive ideas and information,188 although the Court did not a ddress that right in 2003 in upholding the Childrens Internet Protection Act.189 The Court first clearly articulated a right to receive ideas and information during the 1960s according to Profe ssor William E. Lee.190 184 Id. at 220. 185 Id. 186 Id. at 237 (Souter, J., dissenting). Souter contrasted libra ry acquisition policies with censorship. In the instance of the Internet, what the library acquires is electronic access, and the choice to block is a choice to limit access that has already been acquired. Thus, deciding against buying a book means there is no book (unless a loan can be obtained), but blocking the Internet is merely blocking access purchased in its entirety and subject to unblocking if the librarian agrees. The proper analogy therefore is not to passing up a book that might have been bought; it is either to buying a book and then keeping it from adu lts lacking an acceptable pur pose, or to buying an encyclopedia and then cutting out pages with anything thought to be unsuitable for all adults, Souter wrote. Id. at 237. Justice Ginsburg joined in Justice Souters dissent. 187 Id. at 242. 188 See Martin v. Struthers 319 U.S. 141, 143 (1943) ; Lamont v. Postmaster Gen., 381 U.S. 301, 308 (1965) (Brennan, J., concurring); Griswold v. Connecticut 381 U.S. 479, 482-83 (1965); Stanley v. Georgia 394 U.S. 557, 564 (1969); Red Lion v. FCC, 395 U.S. 367, 390 (1969); Kleindienst v. Mandel 408 U.S. 753, 762-63 (1972); Va. State Bd. of Pharmacy v. Va Citizens Consumer Council 425 U.S. 748 (1976); First Natl Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1 978); Bd. of Educ. v. Pico 457 U.S. 853, 866-67 (1982). 189 United States v. Am. Library Assn 539 U.S. 194 (2003). 190 William E. Lee, The Supreme Court and the Right to Receive Expression, 1987 SUP. CT. REV. 303, 303 (1987). 77

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However, the Court directly referred to the right to receive ideas in two cases decided in the 1940s, as well as in subsequent cases. In 1943, the Supreme Court held that the Fi rst Amendment protects the right to both distribute and receive information.191 In a 5-4 vote in Martin v. Struthers,192 the Court invalidated a municipal ordinance that proh ibited persons from knocking on doors or ringing doorbells to distribute handbills, circulars or advertisements.193 A Jehovahs Witness, who went door to door to distribute leafle ts advertising a religious meet ing, was convicted and fined for violating the ordinance.194 Justice Hugo Black wrote the majority opinion on behalf of five members of the Court and stated the ordinance violated the Firs t Amendment. He specifically addressed the right to receive ideas and information when he wrote: The authors of the First Amendmen t knew that novel and unconventional ideas might disturb the complacent, but they chose to encourage a freedom which they believed essential if vi gorous enlightenment was ever to triumph over slothful ignorance. Th is freedom embraces the right to distribute literature, and necessarily protects the ri ght to receive it.195 Justice Felix Frankfurter dissent ed, stating that homes are sanctuaries from intrusions upon privacy, and the due process clause of the Fourteenth Amendment doe s not prevent cities from passing ordinances that pr eserve the privacy of the home.196 Justice Stanley Reed also dissented and was joined by Jus tices Owen Roberts and Robert J ackson. Justice Reed argued that the ordinance did not violate the First Amen dment. No ideas are being suppressed. No 191 Martin, 319 U.S. at 143. 192 Id. at 141. 193 Id. at 143, 149. 194 Id. at 142. 195 Id. at 143. 196 Id. at 152-53 (Frankfurter, J., dissenting). 78

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censorship is involved. The freedom to teach or preach by word or book is unabridged, save only the right to call a householder to the door of his house to receive the summoner's message, Reed wrote.197 In 1945 in Thomas v. Collins,198 the Court again upheld the right to receive expression. In another 5-4 vote, the Court struck down a Texas st ate law requiring union or ganizers to register and obtain an organizers card before soli citing members, stating the statute was unconstitutional.199 A union leader attempted to recruit members at a rally at the city hall, despite a court order issued earlier in the day prohibiting him from doing so unless he filed a registration with the city.200 The Texas State Supreme Court found th e organizer in contempt and ordered him fined and imprisoned.201 The Supreme Court reversed the lower courts judgment, stating that the state law interfered w ith the rights of free speech and free assembly. In authoring the majority opinion, Justice Wiley Rutledge referred to the right to receive ideas and information when he wrote: That there was restriction upo n Thomas (the organize rs) right to speak and the rights of the workers to hear what he had to say, there can be no doubt.202 Justice Stanley Reed wrote the dissenting opinion and was joined by Chief Justice Harlan Stone and Justices Felix Frankfurter and Owen Roberts. Justice Reed stated that statute did not violate the First Amendment because the law did not prevent un ion organizers from speaking. Justice Reed argued that the labor union was a business asso ciation and the state c ould mandate that union 197 Id. at 154-55 (Reed, J., dissenting). 198 Thomas v. Collins 323 U.S. 516 (1945). 199 Id. at 534, 543. 200 Id. at 520-24. 201 Id. at 524-25. 202 Id. at 534. 79

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organizers identify themselves as paid solicito rs because the organizers were engaging in a business transaction.203 During the 1960s, the Supreme Court affirmed the First Amendment right to receive ideas and information in four key cases. In a unanimous decision in Lamont v. Postmaster General204 in May 1965, the Court held as unconstitutional a federal statute mandating that communist propaganda mailed from abroad be held at a post office until the addressee requested it.205 The Postal Service and Federal Employ ees Salary Act of 1962 required that the recipients of communist literature return a repl y card before the material could be delivered. Several individuals who received these postcar ds sued to prohibit the enforcement of the statute.206 Justice William Douglas, writing on behalf of the eight members of the Court hearing the case,207 stated that the law violated Fi rst Amendment rights. He wrote, The addressee carries an affirmativ e obligation which we do not think the Government may impose on him. This requirement is almost certain to have a deterrent effect . [A] ny addressee is likely to feel some inhibition in sending for lit erature which federal officials have condemned as "communist political propaganda."208 In a concurring opinion, Justice William Bre nnan emphasized the right to receive ideas, stating, [T]he right to receive publications is such a fundamental right. The dissemination of 203 Id. at 551-57. (Reed, J., dissenting). Reed wrote, [T]he Act and the injunction which he (Thomas) disobeyed say nothing of speech; they are aimed at a transactionthat of solicitation of members for a union. Id at 551-52. 204 Lamont v. Postmaster Gen., 381 U.S. 301 (1965). 205 Id. at 301 206 Id. at 304-05. 207 Justice Byron White took no part in the consideration or decision of the two consolidated cases. 208 Lamont, 381 U.S. at 307. 80

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ideas can accomplish nothing if othe rwise willing addressees are not free to receive and consider them.209 A month later, in Griswold v. Connecticut ,210 the Court voted 7-2 to strike down a Connecticut law that criminalized the use of contraceptives, as well as the distribution of information on contraception.211 The Court reversed the convictions of the executive director of Planned Parenthood and its licensed physician,212 who were found to be in violation of the law by providing contraception information and advice to married persons.213 In authoring the majority opinion, Justice William Douglas wrote that the statute violated married persons privacy rights214 and the First Amendment.215 Justice Douglas addressed the right to receive ideas and information when he wrote, The righ t of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the ri ght to receive, the right to read and freedom of inquiry, freedom of thought, and freedom to teach.216 Justice Arthur Goldberg wrote a concurring op inion and was joined by Chief Justice Earl Warren and Justice William Brennan. Justice Gol dberg said the Fourteenth Amendment protects fundamental personal rights and the concept of liberty is not confined to the specific terms 209 Id. at 308 (Brennan, J., concurring). 210 Griswold v. Connecticut, 381 U.S. 479 (1965). 211 Griswold, 381 U.S. at 482-83. The statutes struck down were 53-32 and 54-196 of the General Statutes of Connecticut (1958 rev.). Section 53-32 states: "Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less th an fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned." Section 54-196 states: "Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender. 212 Griswold, 381 U.S. at 486. 213 Id. at 480. 214 Id. at 485. 215 Id. at 482. 216 Id. (citing Martin v. Struthers, 319 U.S. 141, 143 (1943) and Wieman v. Updegraff, 344 U.S. 183, 195 (1952)). 81

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contained in the Bill of Rights.217 Justice Byron White also concurred, stating that the statute, as applied to married couples, deprives those c ouples of liberty without due process of law.218 Justice John Marshall Harlan conc urred in the result, but did not agree with the majoritys reasoning. He said the Due Process Clause of th e Fourteenth Amendment did not apply in this case because the statute did not violate some right assured by the letter or penumbra of the Bill of Rights. He supported the majority opinion to re verse the convictions of the appellants, but on the grounds that the statute viola tes basic values implicit in th e concept of ordered liberty.219 Justices Potter Stewart and Hugo Black wrote di ssenting opinions and also joined in each others dissents. Justice Stewar t said he could find nothing in the Connecticut statute that violated the federal Constitution.220 Justice Black also stated that the statute did not violate any provision of the Constitution.221 Justice Black specifically emphasized that there is no constitutional right of privacy.222 In Stanley v. Georgia ,223 in a 1969 obscenity opinion, th e Supreme Court voted 9-0 to reverse the conviction of a man for possession of obscene material within the privacy of his home.224 Justice Thurgood Marshall, who authored th e Courts opinion, wrote, It is now well established that the Constitution protects the right to receive information and ideas (and) this right to receive information and ideas, regardless of their social worth, is fundamental to our free 217 Id. at 486-87 (Goldberg, J., concurring). 218 Id. at 502 (White, J., concurring). 219 Id. at 500 (Harlan, J., concurring) (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). 220 Id. at 527-30 (Stewart, J., dissenting). 221 Id. at 520-21 (Black, J., dissenting). 222 Id. at 508. 223 Stanley v. Georgia 394 U.S. 557 (1969). 224 Id. at 557. 82

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society.225 In addressing the First Amendment, Justic e Marshall said that freedom of speech and of the press protects the right to receive ideas and information.226 In a concurring opinion, Justice Hugo Black wrote that he agreed with the Court that the mere possession of reading matter or movie films, whether labeled obscene or not, cannot be made a crime by a state without violating the First Amendment.227 Justice Potter Stewart also wrote a concurring opinion and was joined in his concurrence by Justices William Brennan and Byron White. Justice Stewart said he agreed with the result, but would revers e the conviction because the seiz ure of the films violated the Fourth Amendment, and therefore the films were not admissible as evidence at trial.228 He said the majority, in its haste to address new c onstitutional frontiers, disregarded the Fourth Amendments protection against search and seizure.229 In Red Lion Broadcasting v. FCC,230 a 1969 case involving broadcast restrictions, the Supreme Court again supported th e right to receive informa tion when it upheld, with a unanimous vote, the personal attack rule a corollary to the Fairness Doctrine.231 The personal 225 Id. at 564. 226 Id. 227 Id. at 568-69 (Black, J., concurring). 228 Id. at 572 (Stewart, J., concurring). The Fourth Amendment protects individuals from unreasonable searches and seizures and reads: The right of the people to be secu re in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be s earched, and the persons or things to be seized. U.S. CONST. AMEND. IV, sec. 1. The Fourteenth Amendment makes the First Amendment applicable to the states. U.S. CONST. AMEND. XIV. 229 Stanley, 394 U.S. at 569 (Stewart, J., concurring). 230 Red Lion Broad. v. FCC, 395 U.S. 367 (1969). 231 In 1949, the Federal Communications Commission (FCC) imposed a "fairness doctrine" on radio and television broadcasters. See In re Editorializing by Broadcast Licensees, 13 F.C.C. 1246 (1949). The fairness doctrine required broadcasters to provide coverage of important controversial issues in the community and to provide an opportunity for the presentation of contrasting viewpoints on those controversial issues. Id. See also Report Concerning General Fairness Doctrine Obligations of Broadcast Licensees, 102 F.C.C. 2d 143, 146 (1985). The FCC repealed the fairness doctrine in 1987, stating that it violated the First Amendment and did not serve the public interest. 2 FCC Rcd 5043, 5057 (1987). In 1989, the U.S. Court of Appeals for the D.C. Circuit upheld the FCCs decision to repeal 83

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attack rule required broadcasters to offer free reply time to a person whose honesty, character, or integrity was attacked during the di scussion of a controversial issue.232 The Red Lion controversy began during a reli gious show aired on a Pennsylvania radio station owned b Lion Broadcasting when the host of the show stat ed that a book author had been fired fro newspaper. The broadcasters said the author was fired for making false charges against government officials, had worked for a Communist-affiliated publication, and had written a book to smear and destroy a political candidate. y Red m a 233 The book author demanded that the radio station provide him with free reply time because he ha d been personally att acked, but the station refused.234 Justice Byron White, expressing the view of the eight members of the U.S. Supreme Court who heard the case, held th at the personal attack rule wa s authorized by Congress and did not violate the First Amendmen t freedoms of speech and press.235 White emphasized the right to receive ideas and information when he wrote: It is the right of the viewers and listeners, not the right of the broadcaste rs, which is paramount.236 However, Whites language came in the context of a federal licensing scheme for all radi o and television broadcasters. In other words, the fairness doctrine. See Syracuse Peace Council v. FCC, 867 F. 2d 654 (D.C. Cir. 1989), cert. denied, 493 U.S. 1019 (1990). Although the FCC eliminated the Fairness Do ctrine in 1987, the FCC did not eliminate two corollaries of the fairness doctrine: the personal attack rule or the political editorial rule, which the FCC adopted in 1967. See Personal Attacks and Political Editorials 8 FCC 2d at 722, 725 (1967); s ee also Radio-Television News Directors Assn v. FCC 229 F.3d 269, 269 (D.C. Cir. 2000). The personal attack rule required broadcasters to offer reply time to a person whose honesty, character or integrity was attack ed during the discussion of a controversial public issue. The political editorial rule required broadc asters to offer reply time to a candidate when a stations editorial opposed that candidate or supported a competing legally qualified candidate. In 2000, the Court of Appeals for the D.C. Circuit ordered the FCC to abolish the personal attack and political editorializing rules. See Radio-Television News Directors Assn, 229 F.3d at 271 (stating that the FCC had not provided adequate justification for the personal attack and political editorializing rules). 232 Personal Attacks and Political Editorials 8 FCC 2d at 725 (1967). 233 Red Lion Broad. v. FCC, 395 U.S. 367, 371 (1969). 234 Id. at 371-72. 235 Id. at 375. Justice William O. Douglas did not hear oral arguments and did not participate in the decision. 236 Id. at 390. 84

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the right to receive information, in this case, wa s based on the fact that Congress had defined in the Communications Act broadcasters as fiduciari es of the public. Congr ess had emphasized the importance of broadcasters providing programming in the public interest.237 Therefore, for the Court, the right to receive inform ation in this case was built into a statute. This became a First Amendment issue when the broadcasters claime d federal regulations in fringed on their First Amendment programming rights.238 Often the Court would have determined this kind of program regulation content control and therefore subject to strict scrutiny.239 However, the Court in Red Lion examined only the reasonableness of this federal regulation inte rpreting the "public interest" standard, consistent with the courts' tradition of examining broadcast content regulation.240 In 1976, the Supreme Court for the first time a pplied the right to re ceive information to purely commercial speech in Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council .241 A Virginia resident and two nonprofit orga nizations challenged a state statute that prohibited pharmacists from advertising prescription drug prices.242 Justice Harry Blackmun authored the 7-1 majority opinion,243 stating that advertising deserves First Amendment protection. He said the First Amendment protected consumers interest in the free flow of 237 Id. at 373, 379-80. See also 47 USC 307 (a). 238 Red Lion 395 U.S. at 386. 239 For a content-based restriction to pass the strict scrutiny test, the restriction must be narrowly tailored to serve a compelling Government interest and must be the least re strictive alternative. United States v. Playboy Entmt Group, 529 U.S. 803, 813 (2000). 240 See Trinity Methodist Church, South v. FRC, 62 F.2d 850, cert. denied 288 U.S. 599 (1933); Natl Broad. Co. v. United States 319 U.S. 190, 216-217 (1943) 241 Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748 (1976). 242 Id. at 749-50. 243 Justice John Paul Stevens did not take part in the consideration or decision of the case. 85

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information, as such information was indisp ensable to well-informed private economic decisions.244 Justice Blackmun wrote, This Court has referred to a First Amendment right to receive information and ideas . If there is a right to advertise, there is a reciprocal right to receive the advertising.245 Chief Justice Warren Burger and Justice Pott er Stewart wrote concurring opinions, while Justice William Rehnquist wrote a dissenting opini on. Chief Justice Burger said that he agreed with the Courts decision because the Court dealt specifically with the states power to prohibit pharmacists from advertising drugs prices; however, he said different factors would apply if the Court were evaluating laws prohibiting lawyers and doctors from advertising.246 Justice Potter Stewart said he agreed with the Courts decisi on since it did not prevent the state or federal government from regulating false or deceptive advertising.247 Justice William Rehnquist dissented, stating that the Court had not followed precedent. He wrote, [The Courts opinion] extends standing to raise First Amendment claims beyond the previous decisions of this Court. It also extends the protection of that Amendmen t to purely commercial endeavors which its most vigorous champions on this Court had thought to be beyond its pale.248 244 Va. State Bd. of Pharmacy, 425 U.S. at 765. 245 Id. at 757 (citing Lamont v. Postmaster Gen. 381 U.S. 301 (upholding the rights of citizens to receive political mail from abroad)). In Virginia State Board of Pharmacy, Justice Blackmun wrote that there is a First Amendment right to "receive information and ideas," and that freedom of speech necessarily prot ects the right to receive. Id. (citing Martin v. City of Struthers 319 U.S. 141, 143 (1943) and Stanley v. Georgia, 394 U.S. 557, 564 (1969) ). 246 Id. at 775. Chief Justice Burger wrote, I doubt that we know enough about evaluating the quality of medical and legal services to know which claims of superiority are m isleading and which are justifiable. Nor am I sure that even advertising the price of certain pr ofessional services is not inherently mi sleading, since what the professional must do will vary greatly in individual cases. It is important to note that the Court wisely leaves these issues to another day. Id. (Burger, C.J., concurring). 247 Id. at 776-78 (Stewart, J., concurring). 248 Id. at 781 (Rehnquist, J., dissenting). 86

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Rehnquist further argued that the plaintiffs were not assert ing their right to receive information, but rather were asserting the right of a third party to publish information. He said the statute did not prohibit anyone from receiving information about prescription drug prices in person or by phone.249 In addition to applying the right to receive information and ideas to commercial speech, the Supreme Court also has recognized a reci pients right to receive corporate political communications.250 In 1940, in Thornhill v. Alabama,251 the Court, in an 8-1 decision, reversed an Alabama appellate court ruli ng that had upheld a state stat ute prohibiting loitering and picketing on or near business properties.252 Justice Frank Murphy, who authored the majority opinion, wrote, The freedom of speech a nd of the press guaranteed by the Constitution embraces at the least the liberty to discuss public ly and truthfully all matters of public concern without previous restraint or f ear of subsequent punishment.253 Murphy said that free speech suppl[ies] the public need for information and educat ion with respect to the significant issues of the times.254 Justice James McReynolds dissented, st ating that the lower courts judgment should be affirmed.255 However, McReynolds did not write a dissenting opinion. In 1978, in First National Bank of Boston v. Bellotti,256 the Supreme Court, on a 5-4 vote, struck down a state statute that prohibited nonpre ss corporations from using corporate funds to 249 Id. at 782. 250 William E. Lee, The First Amendment Doctrine of Overbreadth 71 WASH. U. L. Q. 637, 676-77 (1993). 251 310 U.S. 88 (1940). 252 Id. at 91-92. 253 Id. at 101-02. 254 Id. 255 Id. at 106. 256 435 U.S. 765 (1978). 87

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support or oppose referenda issues unless those issues directly relate d to a corporations business.257 Justice Lewis Powell, Jr., who was join ed by Chief Justice Warren Burger and justices Potter Stewart, Harry Blackmun and John Paul Stevens, authored the Courts opinion. Powell supported the listeners right to receiv e information when he wrote, [T]he Court's decisions involving corporations in the business of communicati on or entertainment are based not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussi on, debate, and the dissemination of information and ideas.258 Powell emphasized the importance of citi zens access to information in order for self-governance to work in a democracy. The go vernment is prohibited from restricting the publics access to information lest the people lose their ability to govern themselves, he said.259 to any definable ca tegory of persons or entities: It belongs to all who exercise its free ion Chief Justice Warren Burger concurred in the opinion, stating that the First Amendment does not belong doms.260 Justice Byron White authored one of two dissenting opinions and was joined by justices William Brennan and Thurgood Marshall. White said that one function of the self-express value of the First Amendment was to protect the right to hear or receive information.261 However, White argued that the right to receiv e information that is financed by corporate 8. 7 (White, J., dissenting). 257 Id. at 767-6258 Id. at 783. 259 Id. at 792. 260 Id. at 802 (Warren, C.J., concurring). 261 Id. at 806-0 88

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funding is not of the same dimension as that to hear other forms of expression.262 Such expenditures may be viewed as seriously threat ening the role of the First Amendment as a guarantor of a free marketplace of ideas, he wrote.263 White said that measures are needed to prevent t the al persons, it the operation of business corporations w ith limited rights of politica rk corporations from do minating the political process.264 Justice William Rehnquist authored a separate dissenting opinion,265 stating tha statute did not violate the First or Fourteenth Amendments to the U.S. Constitution.266 Corporations are not entitled to all the rights of free expres sion enjoyed by natur Rehnquist said.267 The free flow of information is in no way diminished by the Commonwealth's decision to perm l expression, he wrote.268 In 1980, in Consolidated Edison of New York v. Public Service Commission of New York,269 the Supreme Court, in a 7-2 vote, struck do wn a state statute that prohibited the utility company from including political brochures in its monthly bills.270 In reversing the New Yo Court of Appeals ruling, the S upreme Court said that the ba n on political messages was an unconstitutional content-based regulation that vi olated the First and F ourteenth Amendments.271 262 Id. at 807. 263 Id. at 810. 264 Id. at 811-12. 265 Id. at 822 (Rehnquist, J., dissenting). 266 Id. at 827-28. 267 Id. at 825. 268 Id. at 828. 269 447 U.S. 530 (1980). 270 Id. at 544. 271 Id. at 533-36. 89

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Justice Powell, writing for the Court, referred to th e right to receive information when he wrote, Freedom of speech is indispensable to th e discovery and spread of political truth,272 and best test of truth is the power of the thought to get itself accepted in the competition of the market. the to restrict ll r the appropriateness of any allocation of those costs th general interest and therefore violated he 273 Powell said that "the First Amendment means that government has no power expression because of its message, its ideas, its subject matter, or its content."274 Justice Thurgood Marshall concurred with the op inion, but stated that the Court did not address the issue of whether the Public Servic e Commission could exclude the costs of the bi inserts from the utility companys rate base o at the Comm ission might make.275 Justice John Paul Stevens concurred in the judgment, stating that the Public Service Commissions censorial regulation was motivat ed by nothing more than a desire to curtail expression of a particular point of view on controversial issues of the First Amendment.276 Justice Harry Blackmun, joined by Justice William Rehnquist, dissented, stating that t regulation did not violate the Fi rst and Fourteenth Amendments. The state was legitimately concerned with preventing the utility from ta king advantage of this monopoly power to force consumers to subsidize dissemination of its viewpoint on political issues, Blackmun wrote.277 272 Id. at 534 (quoting Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). 273 Id. (quoting Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). 274 Id. at 537 (quoting Police Dept. v. Mosley, 408 U.S. 92, 95 (1972)). 275 Id. at 544 (Marshall, J., concurring). Fo r example, as Justice Blackmun wrote in his dissent, the Public Service Commission could charge the utility's shareholders all the costs of the envelopes and postage and of creating and maintaining the mailing list, and charge the consumers on ly the cost of printing and inserting the bill and the consumer service insert. Id. at 556 (Blackmun, J., dissenting). 276 Id. at 546-47 (Stevens, J., concurring). 277 Id. at 553 (Blackmun, J., dissenting). 90

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He said that the state was attempting to protec t ratepayers from unwillingly financing the utility companys speech and to preserve the billing envel ope for the sole benefit of the customers who pay for ght to referred to the publics right to receive informa tion and ideas, stating th at, By protecting those it.278 Later that year, in Pacific Gas & Electric Co. v. Public Utilities Commission ,279 the Supreme Court, in a 5-3 vote,280 held that a California utility company could not be forced to include a consumer groups newsletter in the companys billing envelopes.281 The Public Utility Commission of California had ruled that a monopoly must carry its critics messages.282 Justice Lewis Powell, Jr. authored the Courts opinion and was joined by Chief Justice Warren Burger and justices William Brennan and Sandra Day OConnor. Powell wrote that the Commissions order impermissibly burdens the utility companys First Amendment rights because the order forces the company to associate with the view s of other speakers, and because it selects the other speakers on the basi s of their viewpoints.283 Powell compared Pacific Gas to Bellotti284 and Consolidated Edison ,285 writing that the critic al considerations were that the State sou abridge speech that the First Amendment is designed to protect, and that such prohibitions limited the range of information and ideas to which the public is exposed.286 Powell again 278 Id. at 555. 279 475 U.S. 1 (1986). 280 Justice Harry Blackmun did not take pa rt in the consideration of the case. 281 Id. at 20-21. 282 Id. at 4-6. 283 Id. at 20-21. 284 435 U.S. 765 (1978). 285 447 U.S. 530 (1980). 286 Pacific Gas, 475 U.S. at 8. 91

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who wish to enter the marketplace of ideas from government attack, the First Amendment protects the public's intere st in receiving information.287 Chief Justice William Burger co ncurred with the plurality op inion, stating, I would not go beyond the central question presented by this case, which is the infringement of Pacific's right to be free from forced association w ith views with which it disagrees.288 Justice Thurgood Marshall concurred in the j udgment only, and said that the State of California had unconstitutionally redefined a proper ty right in the extra space in the utility's billing envelope. He said that the First Amendment would not a llow burdening the speech of one party in order to enhance the speech of another.289 Justice William Rehnquist wr ote one of two dissenting opinions and was joined by justices Byron White and John Paul Stevens. Rehnquist said that nega tive free speech rights should not be extended to corpora tions in general. He also said that the consumer groups access to the utility companys billi ng envelopes would not have any noticeable deterrent effect on the utilitys right to speak.290 Justice Stevens wrote a sepa rate dissenting opin ion, stating that the Public Utilities Commissions requirement that Pacific Gas carry a third partys message differed little from a variety of other commercial co mmunications that have rarely been challenged and never invalidated on First Amendment grounds.291 287 Id 288 Id. at 21 (Burger, C.J., concurring). 289 Id. at 22-26 (Marshall, J., concurring). 290 Id. at 26 (Rehnquist, J., dissenting). 291 Id. at 35-36 (Stevens, J., dissenting). 92

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Commentator Analysis on Public Forum Doctrine Although the U.S. Supreme Court stated that In ternet access in a public library is neither a traditional nor a limited public forum,292 legal commentators ar e divided on how forum doctrine applies to public libraries. The commen tators do not agree on wh ether a public library should be considered a traditi onal public forum, a limited or designated public forum, a nonpublic forum, or a mixture of forums. Severa l commentators argue that public forum doctrine does not apply to libraries at all. The Public Library as a Traditional Public Forum Several legal commentators have argued that the public library is a traditional public forum where the right to receive information and ideas is pa ramount. Law professor Richard Peltz said that public libraries ar e like public parks and one role of libraries is to foster public inquiry. In an article on adults access to online materials in public libraries, Peltz wrote, The right to receive is critically important in a public library.293 Law librarian Raizel Liebler argued that libraries have replaced public parks as a tradi tional public forum.294 Libraries have become the epicenter of a physical spac e for public discourse, both thr ough the items in the library and through library meeting rooms, and when Internet acc ess is added to librarie s, they serve an even more important role for the free exchange of ideas, Liebler wrote.295 A law student, Aaron Jacobson, contended that library In ternet terminals are a traditiona l public forum. He stated that courts characterize a traditional public forum as one that has been historically open to the public. 292 United States v. Am. Library Assn, 539 U.S. 194, 205 (2003). For a discussion of the Supreme Courts opinion on library Internet access an d public forum doctrine, see Chapter 7. 293 Peltz, supra note 65, at 440-41. 294 Liebler, supra note 70, at 71-73. 295 Liebler, supra note 70, at 73. 93

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Jacobson argued that public libraries have been op en to the public for more than a century and therefore meet the requirements of being a traditional public forum.296 Internet terminals in public libraries fit within the defi nition of a traditional public foru m; the terminals are extensions of the libraries that house them, and the librar ies themselves are traditional public forums, Jacobson wrote.297 The Public Library as a Designated/Limited Public Forum Some commentators have argued that, for the purposes of receiving information, Internet access in a public library may be considered a limited or designated public forum. Leah Wardak, a law student, stated that the govern ment took an affirmative step to designate Inte rnet access as a (limited) public forum when it announced that th e reason libraries provide Internet access is to give their patrons another medium for research.298 Another author, Abigail Holland, argued that the government treated public libraries as a limited public forum. The government opens libraries and provides Internet access to promot e the dissemination and receipt of information. This affirmative government act supports the premis e that Internet access in a public library is a limited public forum and subject to strict scrutiny, Holland wrote.299 296 Jacobson, supra note 70, at 1361. 297 Jacobson, supra note 70, at 1361 (citing United States v. Kokinda 497 U.S. 720,726 (1990) (defining traditional public forum as governmental property traditionally open to p ublic for expressive activity) and Perry Educ. Assn v. Perry Local Educators Assn, 460 U.S. 37, 45 (1983) (describin g traditional public forums as places that, by long tradition or government fiat, have been devoted to assembly and debate)). 298 Wardak, supra note 70, at 724-25 (citing United States v. Am. Library Ass'n 123 S. Ct. 2297, 2305 (2003)). Wardak added that, Internet access in public libraries is a designated public forum; therefore, the First Amendment does include a right to receive, and CIPA should have been subject to strict scrutiny. Id. 299 Abigail K. Holland, Comment, Constitutional Law Constitutionality of Mandatory Filters on Federally Funded Internet Access in Public Libraries United St ates v. American Library Association, Inc., 539 U.S. 194 (2003), 38 SUFFOLK U. L. REV. 217, 221 (2004) (internal citations omitted). 94

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If Internet access in a public library were a limited public forum, any regulations limiting access to the Internet would be subject to strict scrutiny, two commentators noted.300 However, if a librarys Internet policy were not content-based, the interm ediate scrutiny standard would apply. For example, filtering policies might be content-neutral time, place and manner regulations if a library prohibited the viewing of all images and graphics because of the effect on computer resources, such as the amount of bandwidth and length of time it takes to download images and other multimedia content, in contrast to text.301 Professor Bernard Bell has argued that the pub lic library is at the very least a limited public forum for those desiring physical access to obtain information and might even be a traditional public forum for receiving information.302 The interests of recipients of information are paramount in a public library setting, according to Bell.303 He argued that librarians should have limited power in preventing patrons access to online materials that satisfy their patrons' intellectual interests.304 However, he contends that libraries can place lesser value on materials that are not primarily focused on intellectual enlightenment, such as sexu ally explicit material directed toward the audience's prurient interests. 305 300 Peltz, supra note 65, at 478-79; Holland, supra note 299, at 221. See also Semitsu, supra note 65, at 533. 301 Semitsu, supra note 65, at 528. 302 Bell, supra note 64, at 207. 303 Bell, supra note 64, at 195. 304 Bell, supra note 64, at 195. 305 Bell, supra note 64, at 207. 95

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The Public Library as a Nonpublic Forum Public libraries possibly could be viewed as a nonpublic forum, according to two authors.306 If forum doctrine is even applicable, the library is a nonpublic forum by default, according to one author.307 First, the government has not ope ned the library as a traditional forum for public speeches; and second, the libr ary is not a designated public forum because no expressive activities have been admitted to the forum.308 Another author stated that in a nonpublic forum, only a reasonableness standard is required when reviewing filtering technology to examine whether it is rationally related to any legitimate government interest.309 The Public Library as Mixture of Fora Two commentators have said that applying public forum and right to receive ideas and information doctrines to the public library is pr oblematic because public libraries are a mixture of fora.310 Librarians make two types of decisions: whic h patrons to admit to the library and which content to select for the library, according to attorney Mark Nadel.311 Because of libraries acquisition policies and limited shelving and stor age facilities, librari ans do not accept all donations. Nadel argued that a public library is a designated or limited public forum for physical access, but a nonpublic forum for the right to receive information and ideas.312 Libraries are a 306 Semitsu, supra note 65, at 533; VanNorman, supra note 54, at 430-32. 307 VanNorman, supra note 54, at 431. 308 VanNorman, supra note 54, at 431. 309 Semitsu, supra note 65, at 533. 310 Mark S. Nadel, The First Amendment Limitations on the Use of Internet Filtering in Public and School Libraries: What Content Can Libraries Exclude? 78 TEX. L. REV. 1117, 1132 (2000); Julie M. Tedjeske, Note, Mainstream Loudoun and Access to Internet Resources in Public Libraries, 60 U. PITT. L. REV. 1265, 1290 (1999). 311 Nadel, supra note 310, at 1132. 312 Nadel, supra note 310, at 1132; see Tedjeske, supra note 310, at 1290. 96

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designated or limited public forum when decidi ng on which patrons to admit because libraries cannot be very selective about t hose decisions, Nadel said. In c ontrast, libraries are a nonpublic forum when choosing which materials to add to their collections because libraries have the discretion to be quite sel ective, according to Nadel.313 If libraries were classified as a designated or limited public forum for the purposes of selecting content, libraries would need to have compelling reasons for rejecting book donations based on the content of those books, Nadel said.314 A law student noted that the Kreimer court315 used a First Amendment right to receive information as the basis for the courts public forum analysis.316 However, the issue before the court was physical access to the library and not access to the librarys holdings.317 In the holding of Kreimer v. Bureau of Police ,318 the court found that the local government in Morristown and Morris Township, New Jersey, had made the library a limited public forum for the right to receive information, but not for personal expression, such as making speeches.319 The Kreimer 313 Nadel, supra note 310, at 1132. For a discussion of library collection development, see supra pp. 50 to 52. 314 In discussing public forum doctrine, Nadel only used the book donation example and did not discuss acquisition or selection decisions that librarians routinely make in bui lding their collection. Nadel said that the strict scrutiny test would apply to libraries rejecting book donations based on content. Nadel, supra note 310, at 1132-33. For a content-based restriction to pass the strict scrutiny test, the restriction must be narrowly tailored to serve a compelling Government interest and must be the least restrictive alternative. See United States v. Playboy Entmt Group, 529 U.S. 803, 813 (2000). 315 Kreimer v. Bureau of Police 958 F. 2d. 1242 (3d Cir. 1992). 316 Tedjeske, supra note 310, at 1289-90. 317 Kreimer, 958 F. 2d. at 1247, 1261 1269. Richard Kreimer, a homeless ma n with poor hygiene, wanted access to the library to read. However, library patrons and staff said Kreimers body odor, staring, and loud talking disrupted other patrons and staff. Id. 318 Id. at 1242. 319 Id. at 1256-63. The Kreimer Court emphasized the right to receive in formation doctrine wh en stating, The recognition of a constitutional right protec ting public access to information and id eas is simply the threshold of our analysis. Id. at 1255. In addressing the hygiene issue, the Third Circuit of the U.S. Court of Appeals upheld that the librarys policy requiring that patrons have a non-offensive body odor. The court held that the policy was narrowly tailored to meet a significant interest: The Library's goal is served by its requirement that its patrons have non97

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court held that a librarys policies on patron hyg iene and conduct placed some restrictions on patrons rights to receive inform ation, but the restrictions were narrowly tailored, and the restrictions did not improperl y restrict patrons fro m exercising the constitutionally protected right to receive information.320 In an article on Intern et access in public libra ries, the law student st ated that public forum analysis is not appropriate for a librarys hol dings or collections because librarians make collections decisions that are consistent with their mission and policies.321 The law student also argued that the Perry court322 focused on lack of access too r more precisely, the lack of exclusion fromthe forum or building itself, and not the right to receive information inside the building.323 In Perry, the Supreme Court held that t eacher mailboxes are a nonpublic forum.324 The Inapplicability of Public Foru m Doctrine to Public Libraries Other commentators have argued th at public forum analysis is not applicable to libraries at all.325 Because librarians use editorial disc retion in acquiring library materials326 and cannot offensive bodily hygiene, as this rule prohibits one patron from unreasonably interfering with other patrons' use and enjoyment of the Library; it further promotes the Library's interest in maintaining its facilities in a sanitary and attractive condition. Id at 1264. The court said the policy was narrowly tailored to achieve a significant government interest because the rule prevented one patron from interfering with other patrons use of the library and promoted the librarys interest in k eeping its facilities clean and attractive. Id. at 1264. Other library policies mandated that patrons engage in activities associated with th e use of a public library, such as reading, studying and using library materials, and prohibited loitering, f ood and drink, and noisy and boisterous activities. See also Helper, supra note 93. 320 Kreimer, 958 F. 2d. at 1266. See supra notes 9199 and accompanying text for a discussion of Kreimer. 321 Tedjeske, supra note 310, at 1289-90. The author likened tax-f unded Internet access to g overnment subsidies in Rust v. Sullivan, 500 U.S. 173 (1991) She wrote the Supreme Court in Rust correctly upheld speech restrictions preventing family planning clinic health care workers from providing abortion counseling since the funding was limited to preconception counseling. See Rust v. Sullivan, 500 U.S. 173, 179, 181, 194 (1991). For a discussion of the public librarys mission, role and acquisition policies, see supra pp. 46-52. 322 Perry Educ. Assn v. Perry Local Educators Assn 460 U.S. 37 (1983). 323 See Tedjeske, supra note 310, at 1290. 324 Perry, 460 U.S. at 55. 325 See Robert Corn-Revere, United States v. American Library Association: A Missed Opportunity for the Supreme 98

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cater to every patrons demands, public libraries should not be subjec t to forum analysis, according to Brent VanNorman, a law student.327 VanNorman argued that public libraries could be compared to public broadcasting, which the U. S. Supreme Court in 1998 said should not be vulnerable to forum analysis.328 In Arkansas Educational Television Commission v. Forbes,329 the Supreme Court Justices noted that Congress in 1927 rejected the argument that broadcast stations be open to all persons who want to discuss public issues.330 Justice Anthony Kennedy, who authored the majority opinion, wrote, I n the case of television broadcasting, however, broad rights of access for outside speakers would be antithetical, as a general rule, to the discretion that stations and their editorial staff must exercise to fulfill their journalistic purpose and statutory obligations.331 First Amendment scholar Robert Corn-Revere ar gued that public forum doctrine is not a good fit for libraries because the doctrine revolves around speakers rather than listeners or readers. In a 2003 article, Corn-Revere chas tised the Supreme Court for not revising and Court to Clarify Application of First Amendment Law to Publicly Funded Expressive Institutions, 2003 CATO SUP. CT. REV. 105, 127-28 (2003); VanNorman, supra note 54, at 432; Marc Blitz, Constitutional Safeguards for Silent Experiments in Living: Libraries, the Right to Read, and a First Amendment Theory for an Unaccompanied Right to Receive Information 74 UMKC L. REV. 799, 844 (2006). See generally Jim Chen, The Faegre & Benson Symposium : Law, Information and Freedom of Expression: Artic le: Mastering Eliot's Paradox: Fostering Cultural Memory in an Age of Illusion and Allusion, 89 MINN. L. REV. 1361 (2005). 326 For a discussion of lib rary acquisition decisions, see supra pp. 50 to 52. 327 VanNorman, supra note 54, at 432. 328 VanNorman, supra note 54, at 432 (citing Ark. Educ. Television Commn v. Forbes 118 S. Ct. 1633 (1998)). 329 Ark. Educ. Television Commn v. Forbes 523 U.S. 666 (1998). 330 Id. at 673-74. 331 Id. at 672-73. However, the Court also stated that, Although public broadcasting as a general matter does not lend itself to scrutiny under the forum doctrine, candidate debates present the narrow exception to the rule. Id. at 675. 99

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clarifying public forum doctrine and th e doctrine of unconstitutional conditions332 in the CIPA case.333 He said the Court should have adopted a different constitutional framework,334 although he did not make specific recommendations. Co rn-Revere wrote that the Court should have developed a coherent theory for analyzi ng speech restrictions imposed on public institut whose rum nd the ic ions.335 Derek Stomberg, a law student, argued that a new category, inherently public fora, should be adopted. This designati on would provide protection to new types of properties principle purpose is to promote free speech. The Internet should then be classified as an inherently public fora because the Internet is a centralized place wh ere people can look for information and discuss ideas.336 Stomberg noted that the concep t of an inherently public fo is not new. In his law review article, St omberg cited a 1992 concurring opinion written by Supreme Court Justice Anthony Kennedy. According to Justice Kennedy, the Court should adopt a more modern and objective standard to the pub lic forum doctrine, one that extends beyo historical designation of streets, parks and sidewalks as their role is diminishing. Justice Kennedy said that the Court needs to recognize the possibility of other types of traditional publ 332 The unconstitutional-conditions doctrine states that the government cannot c ondition a persons receipt of a vernment benefit on the waiver of a constitutionally pr otected right, (esp. a right under the First Amendment.). ). For a discussion of the Supreme Courts discussion of the see Chapter 7. 3 Corn-Revere, supra note 325, at 129. 334 Corn-Revere, supra note 325, at 127-28. go BLACKS LAW DICTIONARY (8th ed. 2004 unconstitutional conditions doctrine in the CIPA case, 33 335 Corn-Revere, supra note 325, at 126. 336 Derrick Stomberg, Note, United States v. American Library Association, Inc.: The Internet as an Inherently Public Forum, 45 JURIMETRICS J. 59, 71-73 (2004). 100

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fora, whateve f the property. 337 I es ere s travel by automobile, a nd parks all too often become locales for crime rather than social interc ourse, our failure to recognize the forums for speech will lead to a se rious curtailment of our expressive amined the right to receive information in the c that right is most likely limited to physic al access rather than access to information.340 While the r their historical pedigree and with out concern for a precise classification o n his concurrence, Justice Kennedy wrote: Without this recognition our forum doct rine retains no relevance in tim of fast-changing technology and increas ing insularity. In a country wh most citizen possibility that new types of government property may be appropriate activity.338 Commentator Analysis on the Right to Receive Ideas and Information Doctrine In addition to discussing the applicability of public forum doctrine to public libraries, commentators also have discussed the applicability of the right to receive ideas and information doctrine to libraries.339 Although some commentators ex ontext of public forum doctrine, as discussed above, other authors focused on the right to receive information without discussing forum doctrine. Julie M. Tedjeske, a law student, argued that the right to receive information cannot be extended to a librarys collections. If a right to re ceive information exists in a public library, then 337 Id. at 69-71 (citing Intl Socy for Krishna Consciousness v. Lee 505 U.S. 672, 697-98 (1992) (Kennedy, J., concurring in the judgment)). The Krishnas, a religious group, challenged the enforcement of a regulation prohibiting their solicitation of money and distribution of litera ture inside airport terminals. The Court held that an airport was a nonpublic forum and therefore the regulation need only meet the reasonab leness standard and not the strict scrutiny standard. The Court held that prohibiting solicitation of money and distribution of literature inside airport terminals was reasonable to pr omote efficient air travel. The ordinance allowed solicitation and distribution of information on sidewalks outside airport terminals. Lee 505 U.S. at 675-83. 338 Lee, 505 U.S. at 697-98. 339 See Blitz, supra note 325, at 810; Wardak, supra note 70, at 669-71; Peltz, supra note 65, at 440-41. See also Michael Cassidy, Note, To Surf and Protect: The Childrens Internet Protection Act Polices Material Harmful to Minors and a Whole Lot More 11 MICH. TELECOMM. TECH. L. REV. 437, 464 (2005); Adam Horowitz, The Constitutionality of the Childrens Internet Protection Act, 13 ST. THOMAS L. REV. 425, 426, 444 (2000); Gregory Laughlin, Sex, Lies and Library Cards: The First Amendment Imp lications of the Use of Software Filters to Control Access to Internet Pornography in Public Libraries, 51 DRAKE L. REV. 213, 254-55 (2003). 340 Tedjeske, supra note 310, at 1289. 101

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First Amendment right to receive information wa s the foundation for the public forum analys Kreimer, is in to particu h t e d raries 341 the issue in that case was general acce ss to the library, not a claim of access lar resources that the library did not otherwise make available, Tedjeske said.342 In 1984, Shirley Echelman, former executive director of the Associ ation for Researc Libraries and of the Medical Li brary Association, said a relationship exists between the Constitutional guarantee of free speech and the ob ligations of the public library to provide readers with maximum acce ss to all points of view.343 In a 1992 law review article, Firs Amendment scholar Rodney Smolla said that librarians have to show commitment in maintaining intellectual ope nness in public libraries.344 Librarians play a pivotal role in maintaining the free flow of informati on in American society, Smolla said.345 He argued that courts have not gone very far in devising First Amendment doctrines that more fully protect the intellectual neutrality of libraries.346 He stated, [N]ew communicat ions technologies carry with them increased censorship pressures and urged libra rians to fight against censorship in what h called the never ending struggle to maintain th e free flow of information in a wide-open an robust democracy.347 Although Internet access was not available in public libraries when Smollas article was published, his argument applies directly to Internet access in public lib 341 342 343HE IGHT TO NFORMATION EGAL 344 345 346 347 Kreimer v. Bureau of Police, 958 F. 2d. 1242 (3d Cir. 1992). For a discussion of the Kreimer opinion, see supra notes 91-99 and accompanying text. Tedjeske, supra note 310, at 1289. Shirley Echelman, The Right to Know: The Librarians Responsibilities, in T RI : L QUESTIONS AND POLICY ISSUES 56 (Jana Varlejs, ed., 1984). Smolla, supra note 1, at 79. Smolla, supra note 1, at 71. Smolla, supra note 1, at 73. Smolla, supra note 1, at 79. 102

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because ulfillment and autonomy.350 Law stu o r the s hould be presumed unconstitutional.354 Rodney Smolla argued for a similar princ decisions in pu the Internet is a new communicati on technology that promotes a free flow of information and ideas. In a 2006 article, law professor Marc Blitz stated that libraries play a crucial role in the right to receive information and in the exchange of ideas. He described the public library as a place where open access for the public follows l ogically from the mission of the institution.348 Blitz argued that the right to receive information, including online content,349 applies to public libraries because patrons can retrieve informati on that leads to self-f dent Michael Cassidy wrote that filtering violates patrons rights to receive information and ideas and therefore violates their First Amendment rights.351 Commentators also have argued that the right to receive information doctrine applies t public libraries because they are autonom ous institutions. The library autonomy or professionalism principle protects the acquisition decisions352 of librarians from government intervention and therefore s upports patrons right to receive information and ideas.353 Unde library autonomy principle, librarians decisions on acquiring materials w ould not be subject to judicial challenge, according to law professor Jim Chen. He argued that legislation forcing librarians to exclude material iple, which he labeled the profe ssional principle. Accord ing to Smolla, content blic libraries 348 Blitz, supra note 325, at 816. 349 Blitz, supra note 325, at 847, 849-50. 350 Blitz, supra note 325, at 817-18 (citing C. Edwin Baker s liberty theory of the First Amendment). 351 Cassidy, supra note 339 at 464. 352 For a discussion of public library acquisition decisions, see supra pp. 50 to 52. 353 Blitz, supra note 325, at 844; Chen, supra note 325, at 1361. See also Corn-Revere, supra note 325, at 127-28. 354 Chen, supra note 325, at 1362. See generally, Smolla, supra note 1. 103

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should be insulated from partisan political influence by committin them to the so g und discretion of professionals in the field. These rofessionals judge the merits of a work from perspectives limited expertise. Under the autonomy or professionalism principl e, librarians would make decisions on the use of Internet filtering, rather than the government. First Amendment Theory Several theories of the First Amendment apply to patrons access to materials in public libraries. The right to receive ideas theory is perhaps the most directly applicable to public library patrons. First Amendment scholar William L ee stated that the right to receive ideas and information doctrine is important and useful be cause it restricts the governments power to interfere with the recipi ent of the communication. However, Lee said that the Supreme Court has failed to develop a cohesive theory of free sp eech or to tie the right to receive information and ideas to the recipient, independent of the speaker. Although the Supreme Court has stated the right to receive is well established in Stanley v. Georgia in 1969, Lee said the Court has never explained the theoretical foundation of that right. In a 1987 article, Lee wrote that part of the problem is that the Court developed the right to receive information doctrine in various contexts360 and for disparate purposes.361 For example, the Supreme Court upheld the right to p to the professional criteria that ha ve evolved within their areas of 355 356 357 358 359 355 Smolla, supra note 1, at 73. 356 Lee, supra note 190, at 343. 357 Lee, supra note 190, at 343. 358 Stanley v. Georgia, 394 U.S. 557, 564 (1969). 359 Lee, supra note 190, at 307. 360 Lee, supra note 190, at 306-07. 361 Lee, supra note 190, at 342. 104

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receive political speech, even though it was communist propaganda from abroad,362 and the right to receive commercial speech in the form of advertising prescription drug prices.363 The Court also upheld the right of student s in public schools to have access to school library books by striking down a school board decision to remove certain books from the library.364 Lee argued it would make more sense to recognize the right to receive information only in situations where a speaker has a right to speak.365 Under Lees analysis, the right to receive ideas and information most likely would not apply in public libraries becau se speakers do not have the right to speak in that venue.366 However, the U.S. Supreme Court and legal commentators have specifically applied the right to receive information and ideas to public libraries, wh ich is discussed above.367 First Amendment scholar Thomas Emerson has emphasized the rights of the listener or audience, stating that there is a First Amendment right to re ceive and obtain communication, independent of or supplemental to the righ t of the speaker to communicate information.368 He 362 Lee, supra note 190, at 307-11 (citing Lamont v. Postmaster Gen., 381 U.S. 301 (1965) (holding as unconstitutional a federal statute that mandated communist propaganda from abroad be held at a post office until the addressee requested it) ). For a discussion of Lamont, see supra notes 204-209 and accompanying text. 363 Lee, supra note 190, at 314-18 (citing Va. State Bd of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748 (1976) (holding as unconstitutional a state statute that prohibited pharmacists from advertising prescription drug prices)). For a discussion of Virginia State Board, see supra notes 241-249 and accompanying text. 364 See Lee, supra note 190, at 323-27 (citing Bd. of Educ. v. Pico 457 U.S. 853 (1982) (holding that a school board violated the First Amendment when it ordered the removal of books from a junior high school library and senior high school library)). For a discussion of Pico, see supra notes 152-168 and accompanying text. 365 Lee, supra note 190, at 344. 366 See Brown v. Louisiana 383 U.S. 131, 142 ( 1966) (acknowledgin g that a public library is a place dedicated to quiet, to knowledge, and to beauty.). See supra notes 141-151 for a discussion of Brown v. Louisiana See also Kreimer v. Bureau of Police 958 F. 2d. 1242, 1260-61 (3d Cir. 1992) (stating that the purpose of a public library is to pursue knowledge through reading, writing and quiet contemplation and the exercise of other oral and interactive First Amendment activities is antithetical to the nature of the Library.) See supra notes 91-99 for a discussion of Kreimer. 367 For the Supreme Courts decisions on th e right to receive information and ideas, see supra pp. 77 to 92. For commentators discussion on the right to receive information and ideas, see supra pp. 101-104. 368 See Thomas I. Emerson, Symposium The First Amendment and the Right to KnowLegal Foundations of the Right to Know, 1976 WASH. U. L. Q. 1, 2 (1976). 105

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has argued that the right to r ead, listen, or see is so elemen tal that it deserves full First Amendment protection.369 This right to know is of vital importance in a democratic society370 and is an affirmative right, in contrast to the negative right of being free from government interference.371 In Professor Emersons view, the ri ght to know is necessary for selffulfillment and should receive direct constitutional protection.372 To attain self-fulfillment, or self-realization, Emerson said indi viduals have the right to form their own beliefs and opinions and the right to expre ss these beliefs and opinions.373 According to Emerson, the suppression of belief, opinion and expression is an affront to th e dignity of man, a negation of mans essential nature.374 First Amendment scholar C. Edwin Baker, who was a student of Thomas Emersons at Yale University,375 has argued for the liberty theory of the First Amendment, which is based on Emersons theory.376 According to the liberty theory, the First Amendment protects two key values: self-fulfillment and social change. 377 The liberty theory fosters self-fulfillment and selfdetermination,378 thus allowing the listener to use speech for self-realization and change.379 369 Id. at 6. 370 Id. at 1. 371 Id at 2. 372 Id. at 2, 6. 373 THOMAS EMERSON, TOWARD A GENERAL THEORY OF THE FIRST AMENDMENT 5 (New York, Random House: 1966). 374 Id. 375 JOSEPH HEMMER, JR., THE FIRST AMENDMENT 149 (Cresskill, NJ: Hampton Press, 2006). 376 C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. REV. 964 (1978). 377 Id. at 990-92, 1040. 378 Id at 966. 379 Id at 1007. 106

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Baker views change as public participation in collective decision making in society.380 Baker has argued that the solitary uses of speech contribute to self-fulfillment,381 and listeners have a right to demand that the govern ment not prevent them from either receiving or using information.382 Speech is protected because of the va lue to the individua l rather than the collective good.383 However, the solitary uses of information, such as outlining material, engaging in problem solving, or writing a note to oneself, may cont ribute to social change, as well as to self-fulfillment.384 The marketplace of ideas theory supports the ex posure of individuals to a wide variety of ideas and viewpoints and is often attributed to John Milton385 and John Stuart Mill.386 Listeners will come to a clearer and more accurate perception of the truth by struggling to reconcile new ideas with old assumptions, even if a new idea or opinion turns out to be wrong, according to Mill.387 For example, listeners will be exposed to a livelier impression of truth, produced by its collision with error when they are exposed to false information.388 Mill said that the problem with silencing any opinion is that society is deprived of an oppor tunity of exchanging error for truth if the opinion turns out to be right.389 In addition, Mill argued that it is important to hear the 380 Id. at 990-92, 1040. This is a paraphrase, note a quote Baker used these terms separately at different places in his article. 381 Id. at 995-96. 382 Id. at 1007. 383 Id. at 966. 384 Id at 993. 385 See JOHN MILTON, AREOPAGITICA. 386 See JOHN STUART MILL, ON LIBERTY 16 (1859). 387 Id. 388 Id. 389 Id. 107

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pros and cons of issues to fully understand their meaning.390 Moreover, the basis and meanings of opinions become lost without robust discussion.391 U.S. Supreme Court Justice Oliver We ndell Holmes famous dissent in 1919 in Abrams v. United States392 also supported the marketplace of ideas theory. Holmes, who was joined by Justice Louis Brandeis, disagreed with the Cour ts decision to uphold the convictions of Russian immigrants on charges of inciting resistance to the war by publishing anti-American leaflets during World War I. Holmes said that the govern ment did not show that the immigrants had displayed an immediate evil or an intent to disrupt the war or start a revolution.393 Holmes wrote, [T]he best test of truth is the power of the thought to get itself accepted in the competition of the market.[W]e should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the la w that an immediate check is required to save the country.394 Eight years later, Holmes and Brandeis ag ain supported the marketplace of ideas in Whitney v. California.395 Brandeis, who was joined by Holmes in a concurring opinion, said that the U.S. Constitution guarantees free speech and assembly.396 Brandeis wrote, 390 Id. at 42-43. 391 Id. at 39. 392 250 U.S. 616 (1919). The Supreme Court majority voted to uphold the Espionage Act convictions of Jacob Abrams and his co-defendants who distributed leaflets to en courage resistance to the Unit ed States in the war with Germany, to protest American troops sent into Russia, and to advocate worker strikes in U.S. ammunition factories. Id. at 616-20. Justice John Clarke wrote that the manifest pu rpose of such a publication was to create an attempt to defeat the war plans of the Government of the United States. Id. at 623-24. 393 Id. at 628 (Holmes, J., dissenting). 394 Id. at 630. 395 274 U.S. 357 (1927). The Court, in a 9-0 vote, upheld the conviction of a member of the Communist Labor Party, stating that the freedom of speech does not protect the advocacy and use of criminal and unlawful methods to accomplish political change. Id. at 371-73. The Court wrote, [A] State in the exercise of its police power may 108

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[The founders] believed that freedom to think as you will and to speak as you think are means indi spensable to the discovery and spread of political truth [and] it is hazardous to discourage thought, hope and imagination.397 Another theory of the First Amendment, Al exander Meiklejohns self-governance theory, seems to provide absolute protection for speech related to the government process.398 In a shared governance system, where the rulers and the ruled are the same individuals,399 the Congress of the United States has a heavy and basic res ponsibility to promote the freedom of speech, Meiklejohn wrote in 1948.400 He said that while the government can prohibit the abridgment of speech, it cannot prohibit the abri dgment of freedom of speech.401 For example, at a town meeting, the local government can abridge speech by regulating the number of speakers and time limits for comments, as long as everything worth saying be said.402 However, the local government cannot abridge freedom of speech by preventing alternative viewpoints from being presented at a meeting.403 The freedom of ideas shall not be abridged, he wrote.404 According to Meiklejohn, citizens need information and disc ussion to understand issues and make decisions punish those who abuse this freedom by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organi zed government and threaten its overthrow by unlawful means, is not op en to question. Id. at 371. 396 Id. at 376. (Brandeis. J., concurring). Brandeis and Holmes concurred in the result because of Fourteenth Amendment issues, stating that lower court testimony indicated that Whitney and members of the Communist Labor Party of California intended to commit serious crimes. Id. at 379. 397 Id. at 375 (Brandeis, J., concurring). 398 See ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT (1948). 399 Id. at 6. 400 Id. at 17. 401 Id. at 19. 402 Id. at 25. 403 Id. 404 Id. at 27. 109

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in a self-governing system.405 In the 1960s, Meiklejohn expanded his self-governance theory to include education, philosophical and scientific achievements literature, and the arts.406 Education, in all its phases, is the attempt to so inform and cultivate the mind and will of a citizen that he shall have the wisdom, the indepe ndence, and therefore, th e dignity of a governing citizen, he wrote.407 Professor Vincent Blasi has argued that the Fi rst Amendment plays an important role in checking on the abuse of power by government officials. Under Blasis checking value theory, the press plays the role of watchdog in monitoring the activities of government and the misuse of official power.408 Blasi stated that the abuse of official power is an especially serious evil, largely because of the government s power to employ legitimized violence, s as killing innocent people during a war. uch cal 409 Blasi said that Meiklejohns self-governance theory and the checking theory are similar because both th eories give special protection to politi speech. However, the self-governance theory co vers a broad range of communication, whereas the checking theory focuses spec ifically on government misconduct.410 Minors Access to Public Library Material The Supreme Court411 and commentators412 have stated that minors have a First Amendment right to receive information, though to a lesser extent than adults.413 Historian and 405 Id. at 24-25. 406 Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 SUP. CT. REV. 245, 257 (1961). 407 Id. at 257. 408 Vincent Blasi, The Checking Value in First Amendment Theory, 1977 AM. BAR FOUND. RESEARCH J. 521, 527 (1977). 409 Id. at 538. When discussing war, Blas i was referring to the Vietnam War. Id. 410 Id. 411 Ginsberg v. New York 390 U.S. 629, 636 (1968) (upholding by a 6-3 vote a variable obscenity standard that prohibited the sale of magazines to minors that would be considered obscene for minors but not obscene for adults. 110

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attorney Catherine Ross has stated that, despite the Supreme Courts reco gnition of minors First Amendment rights, the Court has not provided much guidance concerning the age and circumstances under which a minor may receive information.414 Professor Ross and other commentators have argued that olde r minors, which they define as teenagers, have a greater First Amendment rights than younger ones.415 Ross said that teenagers have the right to receive information,416 with or without parental approval,417 and that Internet filters in public libraries The majority in Ginsberg stated, "[T]he power of the state to contro l the conduct of children reaches beyond the scope of its authority over adults."). See also Bd. of Educ. v. Pico 457 U.S. 853, 867-68 (1982) (rejecting a school boards claim of absolute discretion to remove books from their school libraries). However, the Pico Court stated: Of course all First Amendment rights acco rded to students must be construed in light of the special characteristics of the school environment. (citing Tinker v. Des Moines Sch. Dist., 393 U.S. 503, 506 (1969)). Pico 457 U.S. at 867-68. See also Reno v. ACLU, 521 U.S. 844, 875, 878-79 (1997) (striking down the Communications Decency Act.) The CDA imposed criminal penalties for the knowing transmission by means of a telecommunications device, any "obscene or indecent" communications to an y recipient aged 17 years or younger. The CDA also prohibited the electronic transmission of communications that depicted in terms "patently offensive" as measured by contemporary community standards, sexual or excretory activ ities or organs. The Court majority stated, It is true that we have repeatedly recognized th e governmental interest in protecting children from harmful materials. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults." Reno 521 U.S. at 875. The Court majority added, It is at least clear that the st rength of the Government's interest in protecting minors is not equally strong throughout the coverage of this broad statute. Reno 521 U.S. at 878. For an analysis of government attempts to protect minors from content deemed harmful, see Chapters 4 and 5. 412 See Sidne Koenigsberg, Print Symposium Contract Options for Individual Artists: Library Records Open to Parental Scrutiny: A New Set of In ternet Access Controls for Minors, 29 COLUM. J.L. & ARTS 361, 376 (2006); Cassidy, supra note 339, at 444; Nunziato, supra note 70, at 121-22; Laughlin, supra note 339, at 254; Horowitz, supra note 339, at 425, 426-27; Catherine Ross, An Emerging Right for Mature Minors to Receive Information, 2 U. PA. J. CONST. L. 223, 223-26 (1999). 413 See, e.g., Ginsberg v. New York, 390 U.S. 629, 636 (1968); Bd. of Educ. v. Pico 457 U.S. 853, 867-68 (1982); Reno v. ACLU 521 U.S. 844, 875, 878-79 (1997); infra Chapters 4 and 5. 414 Ross, supra note 412, at 223-26 (citing Bellotti v. Baird, 443 U.S. 622, 643-44 (1979) (holding that mature minors have a constitutional right to obtain abortions without parental consent under certain circumstances. The Court stated, A pregnant minor is entitled in such a [court] proceeding to show either: (1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents' wishes; or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests.)) Ross said the Supreme Court di d not provide any guidance to the lower courts about how to ascertain maturity, which has resulted in an ad hoc application of the concept. 415 Ross, supra note 412, at 224-25; Amitai Etzioni, Symposium, Do Children Have the Same First Amendment Rights as Adults?: On Protecting Children from Speech 79 CHI.-KENT. L. REV. 3, 43 (2004); Koenigsberg, supra note 412, at 376 (2006); Laughlin, supra note 339, at 254; Nunziato, supra note 70, at 121-22. 416 Ross, supra note 412, at 224-25. 417 Ross, supra note 412, at 275. 111

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interfere with that right.418 According to Ross, minors right to receive information is most applicable when they have autonomy rights rega rdless of parental preferences. Ross explained that minors have autonomy rights in instances in which they lega lly are able to make their own decisions without parental permission. Examples of these autonomy right s include the right to exercise individual religious belief s, the right to contraception and sexuality, and the right to an abortion without parental notice or consent.419 Ross and commentator Dawn Nunziato said that although the right to receive information does not seem to fully apply to minors, mature minors in particular still need access to diverse info rmation for individual self -exploration, to develop values and autonomy, and to acquire the tools they will need for self-governance when they reach adulthood.420 Columbia University law student Sidne Koenigsberg argued that Ross analysis, while doctrinally sound, is too limited. Koenigsberg stat ed that minors should have freedom in more mundane circumstances, such as when they want to read books or visit Internet sites that advocate ideas or beliefs their parents do not share.421 Two law professors proposed an agedbased Internet filtering soluti on to address concerns about mi nors access to inappropriate materials. The professors suggested that public lib raries could implement th ree tiers of filtering: 1) the most restrictive setting would apply to those aged 12 and under; 2) a less restricted 418 Ross, supra note 412, at 262. 419 Ross, supra note 412, at 253-54. 420 Ross, supra note 412, at 223-26; Nunziato, supra note 70, at 155, 161-62. See also Laughlin, supra note 339, at 254. 421 Koenigsberg, supra note 412, at 376. 112

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setting would apply to minors aged thirteen through sixteen; and 3) a much less restricted or unrestricted setting would apply for adults aged seventeen and older.422 However, the American Library Association not ed that an age policy does not take into account differing levels of in tellectual development, family backgrounds or childrearing practices.423 The age-based recommendations also woul d pose three technical problems. First, libraries that choose to have filtering software installed on servers, rather than on individual computers, would not be able to alter settings on individual computers.424 Second, librarians do not necessarily have the expertis e to alter the default settings that come with the filtering software packages. Third, the age-based tier does not meet the requirements of the Childrens Internet Protection Act. Filtering software is unab le to block the specific content prohibited by the CIPA, including material deemed harmful to minors.425 In addition, an unr estricted setting for adults would not meet the requirements of the CIPA.426 422 Etzioni, supra note 415, at 43-44 (2004); Nunziato, supra note 70, at 163-64. The harmf ul to minors clause of the Childrens Internet Protection Act applies to those under the age of seventeen. 423 INTELLECTUAL FREEDOM MANUAL, supra note 20, at 159. 424 A server is a computer that delivers information and software to other computers linked by a network. When individual computers are configured in such a way that they must go through the server to connect to the Internet, a software filter installed on the server computer would bl ock selected content from reaching the individual computers connected to it. Libraries typically also have internal co mputers that allow patrons to search the library systems holdings but that are not connected to the Internet. See BUCKLEY & CLARK, supra note 55, at 20, 323 (2008). See also PROXY SERVER available at http://www.techterms.com/definition/proxyserver (last visited July 20, 2009); 'FILE SERVER' 2003, Encyclopedia of Computer Science, http://www.credoreference.co m/entry/encyccs/file_server (last visited July 20, 2009). 425 Mitchell Goldstein, Congress And The Courts Battle Over The Fi rst Amendment: Can The Law Really Protect Children From Pornography On The Internet? 21 J. MARSHALL J. COMPUTER & INFO. L. 141, 187 (2003). Examples of filtering categories are adults only, sexually exp licit, sex education, nudity and violence. The CIPA prohibits access to three major types of content: access by all patrons to visual depictions that are obscene, access by all patrons to visual images containing child po rnography, and access by persons under age seventeen to visual depictions that are considered harmful to minors. See Childrens Internet Protection Act, Pub. L. No. 106554, 114 Stat. 2763, 2763A-335 (2000) (codified at 20 U.S.C. 9134(f)(1)(A) and (B); 47 U.S.C. 254(h)(6)(B) and (h)(6)(C)). For a discussion of how filtering software works, see Chapter 3. 426 See Childrens Internet Protection Act, Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified at 20 U.S.C. 9134(f)(1)(A) & (B); 47 U.S.C. 254(h)(6)(B) & (C)), mandating the use of filters in public libraries to block access by all patrons, both adults and minor s, to online obscenity and child pornography. 113

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Some proponents of Internet filtering genuinely want to protect ch ildren from text and images that they consider morally harmful, according to library scholar Michael Gorman. Typically, filtering proponents would define morally harmful material as material that contains sexual and violent content, Gorman wrote.427 However, he stated that filtering proponents do not agree on the type or level of se xual content to block. For example, Gorman stated that some people find any writing about sex is offensive, while others object only to writings about sexual variations and visual imag es depicting sexual activity.428 Moreover, he said that individuals find different things repulsive and define harmful sexual content differently.429 Public librarians generally see their primary role as providing free and equal access to all information for all patrons, regardless of age, and without serving as censors or surrogate parents. Librarians who advocate this open access policy emphasize the role of parents in guiding their own childrens use of the Internet.430 According to the American Library Association (ALA), librarians should not assume, abrogate, or overrule the rights and responsibilities of parents.431 Library scholar Richard Rubin st ated that most librarians strongly believe that children should be protected from harm432 and a critical purpose of the li brary is to advance the education 427 See MICHAEL GORMAN, OUR ENDURING VALUES 93-94 (2000). 428 Gorman did not define or explain sexual variations. 429 See GORMAN, supra note 427, at 93. 430 THOMAS E. SHANKS & BARRY J. STENGER, ACCESS, INTERNET, AND PUBLIC LIBRARIES (originally published in 1997 and updated in 2002), available at http://www.scu.edu/ethics/practici ng/focusareas/technology/libraryaccess/ (last visited July 20, 2009). This report was updated in March 2002 by Tamar Weber, research assistant at the Markkula Center for Applied Ethics at Santa Clara University. 431 AM. LIBRARY ASSN, FREE ACCESS TO LIBRARIES FOR MINORS: AN INTERPRETATION OF THE LIBRARY BILL OF RIGHTS, available at http://www.ala.org/ala/aboutala/offi ces/oif/statementspols/statementsif /interpretations/freeaccesslibraries.cfm The ALA Council adopted the interpretation statement in 1972 and amended it in 1981, 1991 and 2004. 432 RUBIN, supra note 1, at 148. 114

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of the young.433 However, librarians do not necessarily agree on their role in the process, particularly if that role involve s restricting acces s to information.434 Many librarians have argued that children who are free to explore ideas become better educated citizens and healthy adults, while others have argued that access to some materials should be restricted.435 Prior to the implementation of the Childrens Internet Prot ection Act, some librarians already had limited minors access to some materials because they wanted to forestall criticism of the librarys collection and services or to av oid confrontations with adults who were concerned with minors exposure to harmful material.436 Although many librarians think that parents should be respon sible for determining what their children see,437 parents do not agree on the role of th e public librarian. For instance, some parents see the public library as a bastion of free speech, where access to information should be completely unrestricted.438 Other parents view the public library as a safe haven where they can send their children without fear that they will be exposed to se xually explicit material.439 These parents argue that the protection of their children (and, for some parents, other people's 433 RUBIN, supra note 1, at 150. 434 RUBIN, supra note 1, at 150. 435 RUBIN, supra note 1, at 150. See also INTELLECTUAL FREEDOM MANUAL, supra note 20, at 27. 436 JOHN ROBOTHAM & GERALD SHIELDS, FREEDOM OF ACCESS TO LIBRARY MATERIALS 36-49 (1982). In the past, some librarians placed controversia l and young-adult materi als in the adult sec tions of libraries. 437 RUBIN, supra note 1, at 150. 438 See Markkula Center for Applied Ethics, Libraries on the Information Superhighway: Ethics Center Facilities Discussion on Internet Access, 9 ISSUES IN ETHICS (No. 1) (Winter 1998), available at http://www.scu.edu/eth ics/publications/iie/v9n1/libraries.html 439 Id. 115

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children) is a core family value, and theref ore minors should be prot ected from accessing obscene and pornographic materials in the library.440 In addressing minors access to public library materials, the ALA amended its Library Bill of Rights in 1967,441 stating that a persons right to use a public library should not be denied or abridged because of age.442 As further support for minors ac cess to library materials, the ALA in 1972 adopted a Free Acces s to Libraries for Minors policy, which is an interpretation of the Library Bill of Rights. The policy states that library policies and procedures that effectively deny minors equal and equitable access to all library resource s available to other users violate the Library Bill of Rights.443 In explaining its rationale, the ALA statement reads: Librarians cannot predict what resources will best fulfill the needs and interests of any individual user based on a single criterion such as chronological ag e, educational level, literacy skills, or legal emancipation.444 Over the years, the ALA issued several othe r interpretations of th e bill of rights that applied to minors. In the 1981 interpretation, the doc ument stated that librar ians should not act as in loco parentis and that [m]aterial selec tion decisions are often made and restrictions are often 440 Shanks & Stenger, supra note 430. 441 INTELLECTUAL FREEDOM MANUAL, supra note 20, at 67. 442 AM. LIBRARY ASSN, LIBRARY BILL OF RIGHTS, art. V, available at http://www.ala.org/ala/aboutala/offices/oif/sta tementspols/statementsif/librarybillrights.cfm and http://www.ala.org/ala/aboutala/offices/oif/state mentspols/statementsif/librarybillofrights.pdf The Library Bill of Rights was adopted on June 18, 1948, and amended on February 2, 1961, and on January 23, 1980, with the inclusion of age reaffirmed on January 23, 1996, by th e ALA Council. Art. V states, A persons right to use a library should not be denied or abridged because of origin, age, background, or views. 443 AM. LIBRARY ASSN, FREE ACCESS TO LIBRARIES FOR MINORS: AN INTERPRETATION OF THE LIBRARY BILL OF RIGHTS, available at http://www.ala.org/ala/aboutala/offi ces/oif/statementspols/statementsif /interpretations/freeaccesslibraries.cfm 444 Id. The policy was adopted on June 30, 1972 and amended on July 1, 1981, on July 3, 1991, and on June 30, 2004 by the ALA Council. The ALA Council is the governing body of the American Library Association and determines all policies of the Association. See http://www.ala.org/ala/aboutala/governance/council/index.cfm See also AM. LIBRARY ASSN, LIBRARY BILL OF RIGHTS, art. V stating, "A person's right to use a library should not be denied or abridged because of origin, age, background, or views." See also RUBIN, supra note 1, at 163. 116

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initiated under the assumption that certain material s may be harmful to minors, or in an effort to avoid controversy with parents. The document also includes a section stating that a uniform age policy does not take into account differing levels of intellectual development, family backgrounds or childrearing practices.445 In its 1996 interpretation of access to electronic sources, the ALA stated that libraries a nd librarians should not deny or limit access to information via electronic resources because of allegedly controvers ial content or because of the librarians personal beliefs or fear of confrontation.446 The ALA also stated that access to electronic resources should not be restricted because of age.447 In 1997, the ALA passed an antifiltering resolution, stating that th e use of filtering software to block constitutionally protected speech violates the Library Bill of Rights.448 In the Interpretations of the Library Bill of Rights in 2002 the ALA reiterated its commitment to providing open access to minors: Libraries should not limit the sel ection and development of library resources simply because minors will have access to them. Institutional self-censorship diminishes the credibility of the library in the community, and restricts access for all library users. Children and young adults unquestionably possess First Amendment rights, includi ng the right to receive information in the library . Lack of access to information can be harmful to minors. Librarians and library governing bodies have a public and professional obligation to ensure that all members of the community they serve have free, equal, and equitable access to the entire range of library resources regardless of content, approach, format, or 445 INTELLECTUAL FREEDOM MANUAL, supra note 20, at 159. 446 AM. LIBRARY ASSN, ACCESS TO ELECTRONIC INFORMATION, SERVICES, AND NETWORKS: AN INTERPRETATION OF THE LIBRARY BILL OF RIGHTS, available at http://www.ala.org/Template.cfm?Section=interpretatio ns&Template=/ContentManagement/ContentDisplay.cfm&C ontentID=31872 This section was adopted on January 24, 1996 and amended on January 19, 2005, by the ALA Council. 447 Id. 448 AM. LIBRARY ASSN, RESOLUTION ON THE USE OF FILTERING SOFTWARE IN LIBRARIES, available at http://www.ala.org/ala/aboutala/offices/oif/sta tementspols/ifresolutions/resolutionuse.cfm 117

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amount of detail. This principle of lib rary service applie s equally to all users, minors as well as adults.449 The ALAs commitment on providing minors with access to all materials extends to online content, too: The American Library Associati on's principles protect minors' access to sound, images, data, games, software, and other content in all formats such as tapes, CDs, DVDs, music CDs, computer games, software, databases, and other emerging technologies.450 The American Library Associati on has clearly stated that a ll library patrons should have unrestricted access to all of the materials and se rvices that libraries offer. In interpreting the library bill of rights, the ALA wrote, Every restriction on access t o, and use of, library resources, based solely on the chronological age, educational level, lite racy skills, or legal emancipation of users violates Articl e V (of the library bill of rights). The ALA also included a reference to the rela tionship between the role of the librarian and the role of the judicial syst em: Librarians and library govern ing bodies should not resort to age restrictions in an effort to avoid actual or antici pated objections, because only a court of law can determine whether material is not constitutionally protected.451 Conclusion The mission of the public library has remained fairly constant for more than seventy years: to support intellectual freedom and to provide open and e qual access to all patrons and to 449 AM. LIBRARY ASSN, FREE ACCESS TO LIBRARIES FOR MINORS: AN INTERPRETATION OF THE LIBRARY BILL OF RIGHTS, available at http://www.ala.org/ala/aboutala/offi ces/oif/statementspols/statementsif /interpretations/freeaccesslibraries.cfm 450 AM. LIBRARY ASSN, ACCESS FOR CHILDREN AND YOUNG ADULTS TO NONPRINT MATERIALS: AN INTERPRETATION OF THE LIBRARY BILL OF RIGHTS, available at http://www.ala.org/ala/aboutala/offices/oif/statementspols/statementsif/interpretations/accesschildren.cfm 451 AM. LIBRARY ASSN, FREE ACCESS TO LIBRARIES FOR MINORS: AN INTERPRETATION OF THE LIBRARY BILL OF RIGHTS, available at http://www.ala.org/ala/aboutala/offi ces/oif/statementspols/statementsif /interpretations/freeaccesslibraries.cfm 118

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119 all users,452 with the goal of combating censorship a nd preserving everybodys right to choose their own reading and viewing materials,453 regardless of format or medium.454 Librarians continue to determine which materials to acqui re to add to the librarys collection, including online resources. However, because Internet filt ering software is propr ietary, librarians do not have input into online acquisition decisions as they do with ot her materials. Most software companies do not explain what they filter or how they filter,455 and therefore, unlike in the book selection process, librarians do not know what they are excluding from the online collection of resources. In addition, filtering technology is im precise in that it does not block all sexually explicit material, while at the same time it blocks constitutionally protected speech. 452 See AM. LIBRARY ASSN, LIBRARY BILL OF RIGHTS, art. V, available at http://www.ala.org/ala/aboutala/offices/oif/sta tementspols/statementsif/librarybillrights.cfm and http://www.ala.org/ala/aboutala/offices/oif/state mentspols/statementsif/librarybillofrights.pdf ; Bowker, supra note 2. But see Boorstin, supra note 2, at 119 (explaining that many early lib rarians were torn between the preservation of books by protecting them from the p ublic and the diffusion of ideas, or making books accessible. In addition, librarians were concerned over the dress and demeanor of patrons, particularly the laboring classes who might soil the books and were unlikely to show them the respect that they were entitled to.). 453 See AM. LIBRARY ASSN, LIBRARY BILL OF RIGHTS, art. V, available at http://www.ala.org/ala/aboutala/offices/oif/sta tementspols/statementsif/librarybillrights.cfm and http://www.ala.org/ala/aboutala/offices/oif/state mentspols/statementsif/librarybillofrights.pdf ; SHUMAN, supra note 3, at 122. 454 AM. LIBRARY ASSN, ACCESS TO ELECTRONIC INFORMATION, SERVICES, AND NETWORKS: AN INTERPRETATION OF THE LIBRARY BILL OF RIGHTS, available at http://www.ala.org/Template.cfm?Section=interpretatio ns&Template=/ContentManagement/ContentDisplay.cfm&C ontentID=31872 This section was adopted on January 24, 1996 and amended on January 19, 2005, by the ALA Council. 455 CRAWFORD, supra note 53, at 227.

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CHAPTER 3 INTERNET FILTERING TECHNOLOGY Introduction After the U.S. Supreme Court upheld the Child rens Internet Protec tion Act (CIPA) in 2003,1 public library administrators and librarians have been required to inst all filtering software on all computers connected to the Internet if they want to receive Library Services and Technology Act (LSTA) and universal service (E-rate) technology funding from the federal government. These funds for technology are availa ble under the LSTA and the E-rate, a part of the Telecommunications Act of 1996.2 The CIPA mandates that libraries certify that they are using technological measures that prevent patrons of all ages from accessing visual depictions that are obscene or that are child pornography, and for patrons who are minors, visual depictions considered harmful to minors.3 Many public librarians, as pa rt of the professions mission, already had established some controls on access to the Internet such as setting time limits for each user and establishing protocol blocking, whic h denies access to types of online platforms, regardless of content, such as usenets, bulletin boards, chat rooms and e-mail.4 This chapter explains the evolution and ar chitecture of the Internet and the technology behind both the Internet and filtering. 1 See United States v. Am. Library Assn 539 U.S. 194 (2003), revg Am. Library Assn v. United States 201 F. Supp. 2d 401 (E.D. Pa. 2002). 2 For an explanation of the LSTA and the E-rate, see Chapter 1, supra notes 36-41 and accompanying text. 3 Pub. L. No. 106-554, 114 Stat. 2763 (2000) (codified at 20 U.S.C. 9134(f); 47 U.S.C. 254 (h)). The CIPA also requires libraries to implement a safety policy to monitor minors online activities and to monitor the operation of a technology protection measure. 20 U.S.C. 34(f)(1)(A) and (B), 47 U.S.C. 4(h)(5)(A) and 47 U.S.C. 254(h)(6)(A). See Chapter 4 for a discussion of the concept of harmful to minors, Chapter 5 for federal attempts to protect minors from sexually explicit material, and Chapter 7 for a discussion of the components of the CIPA. 4 See Ann Curry & Ken Haycock, Filtered or Unfiltered?, 47 SCH. LIBR. J. 47 (Jan. 2001). 120

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Nearly 99% of public libraries in the United St ates offered Internet access to the public in 2008,5 in contrast to 95.7% in 20006 and 25% in 1997.7 Early in 2000, prior to the passage of the CIPA, nearly 17% of public libraries were using filtering software on some computers and 7% of public libraries were using filtering software on all computers.8 History of Internet Technology Courts and researchers have described the In ternet as ever-changing and unparalleled in human communication9 because the Internet connects millio ns of users via linked computer networks and with no physical boundary lines.10 The Internet can be tra ced to a Department of Defense program in 1969 to link government computers at military installations.11 Todays Internet is an international network of interconnected com puters, with no land-based or 5 From 2006 to 2008, libraries providing Internet access remained constant at just under 99%. See AM. LIBRARY ASSN, THE STATE OF AMERICAN LIBRARIES 5 (April 2007) and JOHN CARLO BERTOT, CHARLES R. MCCLURE, ET AL., FLORIDA STATE UNIVERSITY INFORMATION INSTITUTE, PUBLIC LIBRARIES AND THE INTERNET 2008: STUDY RESULTS AND FINDINGS (2008). In fiscal year 2006, the latest year for which data are available, there were 9,208 public library systems or administrative units, and 16,592 central library outlets and branch library outlets in the fifty states and the District of Columbia. See INSTITUTE OF MUSEUM AND LIBRARY SERVICES, PUBLIC LIBRARIES SURVEY: FISCAL YEAR 2006 4 (2008). 6 JOHN CARLO BERTOT & CHARLES R. MCCLURE, PUBLIC LIBRARIES AND THE INTERNET 2000: SUMMARY FINDINGS AND DATA TABLES (2000), available at http://www.eric.ed.gov/ERICDocs/data/ericdocs2 sql/content_storage_01/0000019b/80/16/9a/6f.pdf. 7 THE STATE OF AMERICAN LIBRARIES, supra note 5, at 5. 8 United States v. Am. Library Assn, 539 U.S. 194, 200 (2003) (citing a study conducted by the Library Research Center at the University of Illinois). 9 See Mohammed Hammami et al., WebGuard: A Web Filtering Engine Combining Textual, Structural, and Visual Content-Based Analysis, 18 IEEE TRANSACTIONS ON KNOWLEDGE AND DATA ENGINEERING, 272, 272 (2006); Brian M. Werst, Comment, Legal Doctrine and Its Inapplicability to Internet Regulation: A Guide for Protecting Children from Internet Indecen cy after Reno v. ACLU, 33 GONZ. L. REV. 207, 218 (1997/1998). See also Reno v. ACLU 521 U.S. 844, 850 (1997). 10 Werst, supra note 9, at 218; ACLU v. Reno 929 F. Supp. 824, 830 (E.D. Pa. 1996), affd in Reno. v. ACLU 521 U.S. 844 (1997). 11 Werst, supra note 9, at 217; Scott Winstead, The Application of the Contemporary Community Standard to Internet Pornography: Some Thoughts and Suggestions, 3 LOY. INTELL. PROP. & HIGH TECH. J. 28, 29-30 (2000). 121

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geographic limitations.12 The Internet is comprised of host computers, which store and relay data, and user computers, which upload, vi ew or download data over the Internet.13 Professors Lawrence Lessig and Paul Resnick, both experts on cyberlaw, have explained that Internet communication and regulation involve three types of actors: the se nder or speaker, the receiver or listener, and the intermedia ry who stands between the two.14 In the 1990s, the Internet became more expa nsive and user-friendly when the World Wide Web (WWW) emerged as a platform, providi ng a decentralized, rather than a hierarchal, system of accessing information on a global level. The development of th e World Wide Web can be traced to research by computer program mer Tim Berners-Lee of CERN, the European Laboratory for Particle Physics in Geneva, Switzerland.15 Berners-Lee was a primary mover in creating what today is known as cyberspace.16 In 1989, he proposed using hypertext markup language (HTML) to allow linki ng between documents in a non-hierarchical manner at CERN.17 WWW sites contain not only text but also colorful graphics sound, animation and video, and each site may be linked to many other Web sites.18 According to Forbes magazine, Berners-Lee transformed the Internet from an obscure Pentagon-funded communications project into the 12See A. John Harper III, Traditional Free-Speech Law: Does It Apply on the Internet? 6 COMP. L. REV. & TECH. J. 265, 269 (2002). 13 Id. at 266. 14 Lawrence Lessig & Paul Resnick, Zoning Speech on the Internet : A Legal and Technical Model, 987 MICH. L. REV. 395, 399 (1999). 15 Spencer Reiss, St. Tim of the Web, FORBES, Nov. 15, 1999, at 314. 16 Id. 17 See Tim Berners-Lee, Information Management: A Proposal, available at http://www.w3.org/History/1989/proposal.html See also Robert Cailliau, A Little History of the World Wide Web from 1945 to 1995, http://www.w3.org/History.html (last visited July 20, 2009); Reiss, supra note 15, at 314-16. 18 See generally PETER MORVILLE & LOUIS ROSENFELD, INFORMATION ARCHITECTURE FOR THE WORLD WIDE WEB (3d ed., 2006). 122

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most spectacular technology launch in history.19 He developed a do-it-yourself global address system and the first Web browser and offered the package for free. Without his set of rules for linking and displaying information on computers, Berners-Lee said, the Internet might not have taken off.20 The Internet grew exponentially with the Mosaic Web browse r, which created a graphical user interface. Other browsers followed, such as Netscape and Explorer, and commercial Internet Service Providers (ISPs) such as America Online and Earthlink emerged.21 As the Internet exploded in popularity and content, search engi nes such as Alta Vista, Yahoo! and Google allowed users to sift through billions of Web pages to find inform ation on almost any subject. In addition, online users could post message s on bulletin boards and usenet sites,22 participate in chat rooms23 and conferencing systems,24 send instant messages,25 access e-mail accounts,26 subscribe to listservs,27 and play in MUDs or MOOs28 all from anywhere in the world. Today, 19 Reiss, supra note 15, at 314. 20 Reiss, supra note 15, at 315. 21 See Winstead, supra note 11, at 30-32. 22 A bulletin board, or BBS, allows users to post messages to other users, either privately or publicly. Publiclyposted messages are preserved over time, unlike chat rooms. A usenet is another form of a BBS that is comprised of a set of individuals interested in seeking and posting information on a specific topic, such as ham radio, dog breeding or video games. In BBSs and usenets, there are postings on specific topics, where the commentsand sometimes imagesfollow one another in a bulletin board style. 23 Chat rooms allow live conversations and are divided into special interest groups, such as theater, gardening, car restoration and cybersex (such as women seeking women or group sex). Remarks appear in real time as participants type them in. Generally, these conversations are not preserved over time. 24 Conferencing systems are high-capacity BBSs that ca n offer other services, such as real-time chatting. 25 Instant messages can be sent privately between persons online at the same time. 26 Electronic mail (e-mail) allows communication between two or more people using an e-mail program, such as Outlook. 27 Listservs are e-mail lists to which users subs cribe to obtain mass mailings on specific topics. 28 Multi-User Dungeons and MOO s object-oriented sites are fictitious user-created online worlds in which players invent roles and interact with other online characters. 123

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computer users can engage in peer-to-peer file sharing, post audio and vide o clips, watch Internet television, and talk over the Internet using voice over In ternet protocol (VoIP).29 Internet users also can post content instantaneously on interactive sites, such as Facebook and MySpace.30 With the advances in technology, the number of Web sites, Web pages and online users grew. Web sites are made up of a home or index page plus a number of individual pages that make up the site. A Web site is similar to a file folder that contains and organizes documents, whereas Web pages are similar to the documents inside th e folder. The number of Web sites and Web pages is difficult to precisely measure becaus e no one entity is in charge of the Web and no one central server runs all the Web sites in the world. Internet Content and Usage In 1993, about 130 sites existed on the Web, compared to an estimated 3.7 million sites in 2000.31 By July 2007, more than 125 million Web sites existed.32 In 2009, more than 231 million 29 ACLU v. Gonzales 478 F. Supp. 2d 775, 791 (2007). A VoIP service converts a speakers voice into a digital signal that travels over the Internet. If the caller is calling a regular phone number, the signal is converted to a regular telephone signal before it reaches the destination. See Federal Communications Commission, Frequently Asked Questions: How VoIP/Voice Internet Works http://www.fcc.gov/voip/ (last visited July 20, 2009). 30 DELOITTE ENTERPRISE RISK SERVICES, SAFER INTERNET: SYNTHESIS REPORT 14 (2008), available at http://www.sip-bench.org/Reports2008/sip_ bench_2008_synthesis_report_en.pdf. 31 See Winstead, supra note 11, at 30. 32 Netcraft, July 2007 Web Server Survey (July 2007) http://news.netcraft.com/arch ives/web_server_survey.html (last visited July 20, 2009). Netcraft is an Internet services company based in Bath, England, and provides Internet security and research data and analys is to clients around the world, including Microsoft, Visa, Credit Suisse and Lloyds of London. 124

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Web sites existed.33 In 2002, the number of Web pages was estimated at two billion.34 In 2007, about 29.7 billion pages existed, according to the latest estimate released by boutell.com.35 In striking down the CIPA in 2002, the U.S. Di strict Court for the Eastern District of Pennsylvania noted that estimates had indicated that no more than 1-2% of the content on the Web is pornographic or sexually explicit,36 but the number of Web sites that offered free sexually explicit content approximated 100,000 sites.37 According to the National Research Council (NRC),38 sexually explicit material could be found on only 1.5% of the public Web sites and Web pages in 2002,39 the year the federal district court struck down the CIPA.40 Even a small percentage of such large numbers still represents hundreds of thousands of pornographic Web sites. In 2005, about 34% of tento sevent een-year-olds said they had come across online 33 Netcraft, April 2009 Web Server Survey (2009) http://news.netcraft.com/archives/web_server_survey.html (last visited July 20, 2009). 34 Youth, Pornography, and the Internet Sec. 3.1 at 39 (Dick Thornburgh & Herbert S. Lin, eds., 2002), available at http://bob.nap.edu/html/youth_internet/ 35 How Many Web Sites Exist? (Feb. 15, 2007) http://www.boutell.com/newfaq/misc/sizeofweb.html (last visited July 20, 2009). Boutell.com is a software company based in Philadelphia. 36 Am. Library Assn v. United States, 201F. Supp. 2d 401, 419 (2002). 37 Id. As stated above, the Supreme Cour t upheld the CIPA in 2003, thus reversing the lower courts opinion ( see United States v. American Library Assn., 539 U.S. 194 (2003)). See also Youth, Pornography and the Internet supra note 34, Sec. 3.1, at 72. 38 According to its Web site, the NRC was organized by the National Academy of the Sciences in 1916 to associate the broad community of science and technology with the National Academy of Sciences purposes of furthering knowledge and advising the federal government. The NRC ha s become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering that provides services to the government, the public, and the scientific and engineering communities. See http://sites.nationalacademies.org/nrc/index.htm (last visited July 20, 2009). 39 Youth, Pornography and the Internet supra note 34. 40 Am. Library Assn v. United States, 201 F. Supp. 2d 401 (E.D. Pa. 2002). 125

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pornography that they did not wish to see, an increase from 25% in 2000, according to a survey done by the University of New Hampshire. 41 A 2006 study conducted for the Department of Justice indicated th e portion of sexually explicit Web sites remained at an estimated 1.1 to 1.7%, about the same portion that was reported in 2002.42 However, the number of sexually explicit Web pages in 2006 was estimated at 275 million to 700 million.43 Because of the increase in the number of Web sites in 2009, the number of sexually explicit Web sites increased, with estimat es ranging between 2.3 million and 4.6 million.44 The number of sexually explicit Web pages would be much higher, but no estimates on pages could be found in 2009. In the twenty-first century, minors use of both computers and the Internet grew. In 2001 and 2003, the National Telecommunications and In formation Administration (NTIA) conducted its last two studies on Americans Internet usag e and reported that fourte ento seventeen-year41 Janis Wolak et al., Unwanted and Wanted Exposure to Online Pornography in a National Sample of Youth Internet Users, 119 PEDIATRICS 247, 248 (2007). Thirteen percent of youth in the same age group reported that they had visited pornographic sites intentionally. 42 Transcript of day 11 of Nov. 8, 2006 non-jury trial at 114, ACLU v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007), available at http://www.aclu.org/pd fs/freespeech/copatr anscript_20061108.pdf See also Maryclaire Dale, 1 Percent of Web Sites Deemed Pornographic, www.msnbc.com/id/15721799 (last visited July 20, 2009). Philip Stark, a statistics professor at the University of California-Berkeley, te stified that he estimated 1.7% Web sites accessed through Time Warner AOL, MSN and Yahoo, Inc, are sexually explicit and 1.1% of Web sites accessed through Google and MSN are sexually explicit. See also Youth, Pornography and the Internet supra note 34. 43 ACLU v. Gonzales 478 F. Supp. 2d 775, 788-89 (2007). The court accepted estimates that 1% of Web pages were sexually explicit. Id. The number of sexually explicit pages would be much higher than the number of Web sites because each Web site is made up of many individual pages. But see How Many Web Sites Exist? (Feb. 15, 2007) http://www.boutell.com/newfaq/misc/sizeofweb.html (last visited July 20, 2009). The Boutell group estimated about 29.7 billion pages existed in 2007, which would indicate about between 297 million and 594 million pages would be sexually explicit (1 to 2% of 29.7 billion pages). However, no one really knows exactly how many Web sites or Web pages are on the Internet because no central authority co ordinates the Internet. 44 In multiplying 231,000,000 total Web sites by 1% and 2% of the estimated sexually explicit sites, the number of sexually explicit sites ranged from 2.3 to 4.6 million in 2009. In 2007, number of sexually explicit sites ranged from 1.26 to 2.5 million. The number of sexually explicit pages would be much higher because Web sites contain numerous different pages, but most estimates focus on Web sites rather than Web pages. 126

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olds used the Internet more than any other age group in both years. In 2001, 76.4% of fourteen-to seventeen-year-olds used the Internet and in 2003, 78.8% used the Internet.45 In 2003, 19.9% of oneto four-year-olds used the Internet, 42% of fiveto nine-year-olds used the Internet, and 67.3% of tento thirteen-y ear-olds used the Internet.46 In reporting the overall U.S. populations use of the Internet, including all age groups, th e NTIA found that 55.1% of the population used the Internet in 2001,47 compared to 58.7% in 2003.48 As of late 2004, a Pew Internet and American Life Project survey re ported that 87% of Americans aged twelve to seventeenabout 21 millionwent online.49 Another 2004 study, conducted by Nielsen/Net Ratings, looked at children s access to the Intern et and found that, in contrast to other Internet activities such as e-mail, instant messaging and social chat rooms, children two to eleven were increasing their Web usage at a faster rate than the overall population. On average, that age group viewed 106% more Web pages in October 2004 than in 45 See NATL TELECOMM. & INFO. ADMIN., A NATION ONLINE: ENTERING THE BROADBAND AGE at A-1 (2004), available at http://www.ntia.doc.gov/reports/a nol/NationOnlineBroadband04.pdf. The largest percentage of adults using the Internet in 2003 was the eighteento twenty-fou r-year old group at 70.6%. About 68% of the twenty-fiveto forty-nine-year olds used the Internet, while 44.8% of those fifty and above used the Internet. Id. Studies conducted before 2001 used different age ranges than th e studies conducted in 2001 and 2003 and therefore are not included in the text. However, information is included in this footnote as a reference. According to the study conducted in 2000, children three to eight had the lowest Internet use rate in 2000 (15.3%) and the smallest increase in use since 1998 (4.3 percentage points). In 2000, 53.4% of youths nine to seventeen used the Internet, compared to 43% in 1998, a 24% increase in the use rate. See NATL TELECOMM. & INFO. ADMIN., FALLING THROUGH THE NET: TOWARD DIGITAL INCLUSIONA REPORT ON AMERICANS ACCESS TO TECHNOLOGY TOOLS, PART II, INTERNET USE AMONG INDIVIDUALS(NON-PAGINATED) (October 2000), available at http://www.ntia.doc .gov/ntiahome/fttn00/Falling.htm#36 46 A NATION ONLINE: ENTERING THE BROADBAND AGE, supra note 45, at A-1 47 See NATL TELECOMM. & INFO. ADMIN., EXECUTIVE SUMMARY: A NATION ONLINE: HOW AMERICANS ARE EXPANDING THEIR USE OF THE INTERNET (Feb. 2002), available at http://www.ntia.doc.gov/ntiahome/dn/html/execsum.htm Full report available at http://www.ntia.doc.gov/opadhome/digitalnation/index_2002.html The results are based on data collected in 2001. 48 A NATION ONLINE: ENTERING THE BROADBAND AGE, supra note 45, at A-1 For an index to the six Internet use studies conducted by the NTIA, see http://www.ntia.doc.gov/reports/anol/index.html The results are based on data collected in 2003. 49 PEW INTERNET AND AMERICAN LIFE PROJECT, PROTECTING TEENS ONLINE, at 4 (March 17, 2005), available at http://www.pewinternet.o rg/Reports/2005/Protecting-Teens-Online.aspx. 127

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October 2002, compared to a 15% growth for the population overall.50 Another Pew Internet and American Life Project survey, taken from November 2007 through February 2008, showed that 93% of twelveto seventeen-y ear-olds used the Internet.51 As World Wide Web usage increased, so too did Web page designers savvy use of embedded text that would keep vi sitors at a companys or organi zations Web site, even if they tried to leave. Web designers use two comm on methods to keep viewers on their site: mousetrapping and pagejacking.52 Mousetrapping occurs when a Web site includes embedded and hidden text that disables the back and close features on a users browser. Similarly, pagejacking occurs when users cannot leave the Web si te they are on and are exposed to pop-up pages that they did not request. Mouset rapping and pagejacking have been particularly problematic with pornographic Web sites. When user s try to use the back button or attempt to link to a URL53 of their choice, they instead see mo re pornographic sites.54 Concerns about children inadvertently or de liberately accessing online pornography, from public library and school computers led to the pa ssage of the Childrens Internet Protection Act in 200055 and the United States Supreme Courts decision to uphold the CIPA in 2003.56 50 The Youngest Surfers, PC MAGAZINE, Jan. 2005, at 28 (citing a study by Nielsen/Net Ratings). 51 PEW INTERNET AND AMERICAN LIFE PROJECT, GENERATIONS ONLINE IN 2009 at 6 (2009), available at http://www.pewinternet.org /Reports/2009/Generations-Online-in-2009.aspx. The study did not report the number of twelveto seventeen-year-olds in the U.S. population in 2007 to 2008. 52 Rebecca L. Covell, Note, Problems With Government Regulation of the Internet: Adjusting the Courts Level of First Amendment Scrutiny, 42 ARIZ. L. REV. 777, 777-78, 792 (2000). 53 A URL is a uniform resource locator, the Internet equivalent of an address, such as http://www.cnn.com. In this example, http is the protocol, and w ww.cnn.com is the server address or domain. A forward slash and file name may follow the .com suffix to direct users to pa rticular indices and subcategories within the URL. 54 Covell, supra note 52, at 792. 55 See Chapter 6, supra notes 268-290 and accompanying text, and Chapter 7 for a discussion of the Childrens Internet Protection Act of 2000, Pub. L. No. 106-554, 114 Stat. 2763 (2000) (codified at 20 U.S.C. 9134(f); 47 U.S.C. 254 (h)). 128

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To comply with the Childrens Internet Protection Act, librarians must use filtering softwarecommonly referred to as user-based filteringto bloc k pornographic Internet material. The CIPA focuses on receivers, not senders,57 and covers images, not words. However, several attorneys and legal scholars have writte n that filtering technol ogy is not equipped to block access to images.58 Moreover, these software programs are unable to filter all sexually explicit text while, at the same time, th ey block constitutionally protected speech.59 How Filtering Technology Works Attorney and professor Lawrence Lessig has wr itten that in order to understand filtering technology and choices, one must understand th at both nonuser-based and user-based filtering exists.60 In discussing nonuser-based online filterin g, Lessig explained that architectures in cyberspace can either zone speech or filter speech. In a zoning construct, Web site operators would be required to deny minors access to content deemed harmful to minors,61 such as pornography. Under this scenario, the government would require manufacturers to modify their browsers so that users could set up 56 United States v. Am. Library Assn, 539 U.S. 194 (2003). 57 Prior legislation, such as the Communications Decency Act and the Child Online Protec tion Act, was directed at senders rather than receivers expression. See Chapter 5 for an analysis of th e CDA, the COPA and Supreme Court cases on protecting minors from materi al deemed harmful in the media. 58 See generally MARJORIE HEINS ET AL., BRENNAN CENTER FOR JUSTICE AT N.Y. UNIV. SCHOOL OF LAW, INTERNET FILTERS: A PUBLIC POLICY REPORT (2d ed., 2006); Richard J. Peltz, Use the Filter You Were Born With: The Unconstitutionality of Mandatory Internet Filtering for the Adult Patrons of Public Libraries, 77 WASH. L. REV. 397, 397 (2002); Kathleen Conn, Commentary, Protecting Children from Internet Harm (Again): Will the Childrens Internet Protection Act Survive Judicial Scrutiny? 153 ED. LAW. REP. 469 (July 5, 2001); Adam Horowitz, The Constitutionality of the Childrens Internet Protection Act, 13 ST. THOMAS L. REV. 425 (2000). 59 See generally HEINS, supra note 58; Peltz, supra note 58, at 397; Conn, supra note 58, at 469; Horowitz, supra note 58. 60 LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE 175-82 (1999). 61 Id at 176. In Ginsberg v. New York 390 U.S. 629 (1968), the U.S. Supreme Court ruled that a variable obscenity standard is constitutional, stating that what is obscene as to minors may not be obscene as to adults, and there is a compelling state interest in protecting the health and welfare of children. 129

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profiles, including a check-off box to identify minor users.62 Lessig has argued that this approach would be constitutional, whereas a version requiri ng adults to identify themselves would be unconstitutional,63 as well as time-consuming and expensive.64 In a filtering construct, where material is either pr evented from being sent or from being received, the PICS model (Platfor m for Internet Content Selecti on) has existed since 1995. PICS facilitates the labeling and filtering of content.65 Web content managers voluntarily fill out a PICS-created form that embeds a small piece of HTML66 within the Web site that tells browsers what type of content can be found on the site.67 PICS is regarded as neutral because it does not rate anything but rather allows different groups to a pply their own ratings. Internet researchers Paul Resnick and James Miller wrote that PICS is analogous to specifying where on a package a label should appear, and in what font it shoul d be printed, without sp ecifying what it should say.68 PICS was not designed as a policy proposition but rather as a technical solution for rating content on the Internet69 based on a set of computer industry standards designed to establish a value-neutral labeling infrastructure for the Internet.70 62 LESSIG, CODE AND OTHER LAWS OF CYBERSPACE, supra note 60, at 176. 63 LESSIG, CODE AND OTHER LAWS OF CYBERSPACE, supra note 60, at 176. 64 Lawrence Lessig & Paul Resnick, Zoning Speech on the Internet : A Legal and Technical Model, 987 MICH. L. REV. 395, 420-21 (1999). 65 See id. at 411-12; LESSIG, CODE AND OTHER LAWS OF CYBERSPACE, supra note 60, at 177. 66 HTML is HyperText Markup Language, the coding language used to create hypertext documents for use on the World Wide Web. 67 See PROTECTING TEENS ONLINE, supra note 49. 68 Paul Resnick & James Miller, PICS: Internet Access Controls Without Censorship, 39 COMMCNS OF THE ACM 87, 87 (1996). 69 Thomas B. Nachbar, Paradox and Structure: Relying on Government Regulation to Preserve the Internets Unregulated Character, 85 MINN. L. REV. 215, 226 (2000). 70 See Werst, supra note 9, at 218. 130

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PICS, the World Wide Web Consortiums universal protocol for rating and filtering sites on the Internet,71 is a specification that uses metadata72 to label Web pages in an effort to help control what minors can access on the Inte rnet. PICS does not provide software73 but rather sets technical specifications so that ratings from any source will work with all the filtering software.74 Law professor Junichi Semitsu explained that PICS allows variable ratings and ranges: Instead of merely rating a site adults-only or block, PICS is multidimensional, allowing for variable ratings, from one to ten for example, under criterion ranging from religious content to graphic sex content. PICS-compatible filters and browsers can read the labels and use their own filtering criteria to decide whether to block the site.75 Prior to PICS, no standard format for labels existed, so companies wanting to control access to material had to both develop the software and provide the labels.76 PICS provides a common format for labels, so that any PICS-comp liant selection software can process any PICScompliant label. Under the PICS system, online users can choose to view content based on any content-ratings system they think would best serve them.77 The ratings are done voluntarily by a variety of organizations and gr oups, such as religious organiza tions, childrens groups and other 71 PICS originally was designed to he lp parents and teachers control what ch ildren access on the Internet. However, it also facilitates other uses for labels, including code signing and privacy. Other rating services and filtering software have been built on the PICS plat form. For a complete discussion of PICS, see http://www.w3. org/PICS/ (last visited July 20, 2009). 72 Metadata is encoded data that provides descriptions of information. More simply, it can be defined as data about data or information about content on a Web page. 73 Junichi P. Semitsu, Note, Burning Cyberbooks in Public Libraries: Internet Filtering Software vs. The First Amendment, 52 STAN. L. REV. 509, 517-18 (2000). 74 WC3, PICS Frequently-Asked Questions http://www.w3.org/2000/03/PICS-FAQ/ (last visited July 20, 2009). 75 Semitsu, supra note 73, at 517. 76 See generally Resnick & Miller, supra note 68, at 87. 77 Nachbar, supra note 69, at 226. 131

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special interest groups.78 For instance, the Christian Coalition could choose to develop a ratings system that reflected its values, as co uld the American Civil Liberties Union.79 Although the PICS architecture is in place, software manufact urers would have to write the necessary code to filter material80 and organizations would have to activ ely rate Web sites before users could choose which content to block. Lawrence Lessig stated that no technology is ever truly content-neutral and envisions PICS as having an adverse effect on free speech because it can be instal led anywhere in the distribution chain, includi ng at the level of the nation-state, the Internet service provider, the proxy server,81 or the individual user.82 PICS is a labeling standard that establishes a consistent way to rate and block online content. PICS doe sn't target any particular category of speech. Instead, private agencies will use PICS to deve lop their own content rating schemes, Lessig wrote.83 He argued that although PICS is viewpoi nt-neutral, PICS makes censorship easy because it embeds the tools of censorship into the root architecture of online publishing.84 According to Lessig, libraries and schools can prev ent patrons from viewing controversial sites, 78 LESSIG, CODE AND OTHER LAWS OF CYBERSPACE, supra note 60, at 177. 79 See Lawrence Lessig, Tyranny in the Infrastructure (July 1997) http://www.wired.com/wired/archi ve/5.07/cyber_rights.html. (last visited July 20, 2009). 80 LESSIG, CODE AND OTHER LAWS OF CYBERSPACE, supra note 60, at 177. 81 A proxy server is a computer 'program' that runs on a computer other than the individuals and which is modified to handle a large amount of requests. See PETER BUCKLEY & DUNCAN CLARK, THE ROUGH GUIDE TO THE INTERNET 20, 323 (2007). 82 Lessig, Tyranny in the Infrastructure, supra note 79. 83 Lessig, Tyranny in the Infrastructure, supra note 79. 84 Lessig, Tyranny in the Infrastructure, supra note 79. 132

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companies can control what employees can acces s online, and countries such as China and Singapore can clean up the In ternet for their residents.85 Despite the potential downside of PICS, th e computer software industry has used the PICS platform since 1995. Organizations that have relied on PICS include the Software Publishers Association (SPA), the Entert ainment Software Rating Board (ESRB), the Recreational Software Advisory Council (RSA C) and Internet Content Rating Association (ICRA). The SPA system applies to computer games, which is beyond the scope of this dissertation. The ESRB, which assigns age-based ratings to video games86 similar to ratings used by the Motion Picture Industry of America, also is beyond the scope of this dissertation. Finally, RSAC, which no longer exists as such, used a co ntent-based system and based its ratings on the extent or level of four criteria: violence, nudity, sex, and language.87 Each of the four criteria was assigned a level from zero to four, based on the Web publishers evalua tion of content, with the level four containing the most violence, nudity, sex, or crude language. For example, under the sex criterion, the Web publishers assigned zero to content that contained romance, no sex and five to content that containe d explicit sexual activity; sex crimes.88 85 Lessig, Tyranny in the Infrastructure, supra note 79. 86 The Entertainment Software Rating Board (ESRB) is a non-p rofit, self-regulatory body established in 1994 by the Entertainment Software Association (ESA), formerly known as the Interactive Digital So ftware Association (IDSA). The ESRB commissions consumer research to measure parental agreement with the ratings. See http://www.esrb.org/index-js.jsp. (last visited July 20, 2009). See also Diane Roberts, The Jurisprudence of Ratings Symposium Part I: On the Plurality of Ratings, 15 CARDOZO ARTS & ENT. LJ 105, 113-14 (1997). 87 See Roberts, supra note 86, at 113-14. 88 C. Dianne Martin & Joseph M. Reagle, Jr., An Alternative to Government Regulation and Censorship: Content Advisory Systems for the Internet, available at http://penta2.ufrgs.br/gereseg/censura/rsac/dianne1.htm Under the sex criterion, a was assigned to passionate kissing, a was assigned to clothed sexual touching, and a 4 was assigned to non-explicit sexual activity. Martin wa s RSAC president and Reagle was a member of the World Wide Web Consortium (W3C). According to the W3C Web s ite, the W3C is an international consortium where the W3C staff, member organizations, and the public work together to develop Web standards. The mission of W3C is to lead the World Wide Web to its full potential by developing protocols and guidelines that ensure long-term growth for the Web. http://www.w3.org/Consortium/ (last visited July 20, 2009). 133

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In 1999, the RSAC was folded into Internet Content Rating Association (ICRA), which later became a part of the Family Online Safety Institute. The RSACs aim, to protect children from potentially harmful Internet content while preserving free speech, serves as the main focus of the Family Online Safety Institute.89 The ICRA ratings system, incorporated by the Family Online Safety Institute,90 noted whether foul, language, nudity or sexual content was present. In addition, the ratings added drugs, alcohol, tobacco and weapons, including the context within which these words appear.91 Content labels generated by ICRA conformed to the industry-wide PICS standard.92 The ICRA ratings are in contrast to the RSAC system, in which only "levels" of nudity, sex violence and language were set. Ho wever, ICRA ratings of ten are not effective because many sexually explicit sites that are not ra ted would not be blocked, and if a browser is set to block all unrated sites, many non-pornogra phic Web sites, including government sites, would be blocked as well.93 In addition, ICRA ratings do not work well for user-generated content, such as YouTube, MySpace and Facebook because ICRA ratings have great difficulty distinguishing innocent from harmful conten t in these highly dynamic environments.94 Parents can choose to use a combination of PI CS and a ratings system based on content to determine which content will be blocked from the familys computer system. The issue is more complex for librarians, who must balance allowing adults access to constitutionally protected 89 Recreational Software Advisory Council, http://www.rsac.org/ (last visited July 20, 2009). 90 Internet Content Rating Association, About ICRA http://www.fosi.org/icra/#glance (last visited July 20, 2009). 91 Digital Chaperones for Kids, CONSUMER REPORTS, March 2001, at 20, 21. See also Internet Content Rating Association, About ICRA, http://www.fosi.org/icra/ (last visited July 20, 2009). 92 See Internet Content Rating Association, About ICRA, http://www.fosi.org/icra/ (last visited July 20, 2009). 93 See Digital Chaperones for Kids, supra note 91 at 20, 21. For the most recent Consumer Reports study conducted in 2005, see infra notes 156-159 and accompanying text. 94 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 11. 134

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speech with protecting minors from sexually explicit material that could be deemed harmful.95 Because filtering software is proprietary, libr arians have no way of knowing what content is being blocked.96 Unless they electronically or physica lly monitor patrons Web usage, they do not know whether sexually explicit Web s ites made it through the filters. Internet Filtering in Public Libraries Most libraries have relied on proprietary filtering software,97 rather than attempt to develop their own software. Librarians can choose protocol blocking (the media of communication, such as social chat rooms, usen et, e-mail, instant messaging), whitelisting (establishing an allow list of Web sites th at can be accessed), and blacklisting (prohibiting access to Web sites based on the sites URL or address, the host and/or keywords).98 It is not uncommon for libraries to block access to the Inte rnet via protocol because some uses, such as social chat rooms, e-mail communications and instant messaging, are not necessarily consistent with the librarys mission of providing access to research rather than communication99 or recreation.100 Moreover, protocol blocking is not content-based because all chat rooms or e-mail correspondence would be blocked, re gardless of the subject matter.101 95 For a discussion of the mission and role of the public library, see Chapter 2. 96 See Am. Library Assn v. United States, 201 F. Supp. 2d 401, 462-64 (E.D. Pa. 2002). See also Legislative Proposals to Protect Children from Inappropriate Materials on the Internet : Hearing on H.R. 3783, H.R. 774, H.R. 1180, H.R. 1964, H.R. 3177, and H.R. 3442 before the Sub comm. on Telecomm., Trade and Consumer Protection of the H. Comm. on Commerce 105th Cong. 40 (Sept. 11, 1998) (statement of Jerry Berman, executive director for the Center for Democracy and Technology, referring to S.1619, the Internet School Filtering Act). 97 See History and Development of Filters, 40 LIBRARY TECH. REPORTS 8 (March/April 2004). 98 See Peltz, supra note 58, at 403. See also Whitney A. Kaiser, The Use of Internet Filters in Public Schools: Double Click on the Constitution, 34 COLUM. J.L. & SOC. PROBS. 49, 53-55 (2000), and Horowitz, supra note 58. 99 See Peltz, supra note 58, at 404. 100 A study conducted in 2000 indicated that 53% of public libraries had configured their software to block chat sites and 22% had blocked e-mail access. Curry & Haycock, supra note 4, at 42, 47. 101 See Peltz, supra note 58, at 403-04. 135

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Another option for librarians is to choose filte ring software that white lists Web sites, allowing access to material best suited for a childrens section, which is similar to selection decisions that librar ians routinely make.102 However, white-list filtering is constitutionally suspect when applied to adults (and possibly to mature minors).103 In addition, the immense size of the Internet, as well as ongoing Web page ch anges, makes it impossible for humans to assess every Web site, resulting in many Web sites being blocked.104 Another problem with whitelisting can occur when Web sites change ownership or content and post content that is obscene or sexually explicit. Because Web site reviewers typically do not re-review sites that had previously been white-listed, li brary patrons would have access to the obscene or sexually explicit content.105 Finally, librarians may choose filtering software that blacklists content in one of three ways: by Web site address, host or keywords.106 Under the first option of site blocking, Web sites can be filtered according to their addres ses or URLs, with individual human reviewers selecting the blocked sites. The problems that exist with whiteli sting also exist with site blockingthe size of the Internet makes it impossible for humans to review each Web site, and the fast-changing Internet result s in outdated site-blocking deci sions. A second method is host blocking, which is similar to Web site blocki ng. Under host blocking, lib rarians can block all 102 See Peltz, supra note 58, at 402-03. See also Gregory K. Laughlin, Sex, Lies and Library Cards: The First Amendment Implications of the Use of Software Filters to Control Access to Internet Pornog raphy in Public Libraries, 51 DRAKE L. REV. 213, 272-75 (2003). 103 See Laughlin, supra note 102, at 275. See Chapter 4 for a discussion on balancing adults constitutional rights with the protection of minors and Chapter 8 for a discussion of constitutional issues surrounding Internet filtering in public libraries. 104 See Hammami et al., supra note 9, at 272. See also Laughlin, supra note 102, at 275. 105 Am. Library Assn v. United States, 201 F. Supp. 2d 401, 435 (E.D. Pa. 2002). 106 See Peltz, supra note 58, at 404; see also Horowitz, supra note 58, at 429-35. 136

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Web sites published by a specific host. Under this system, when a Web host features pornographic content, all Web sites of all user s of that host would be blocked, including nonpornographic sites.107 A third option under blacklisting is keyword blocking, which results in the blocking of Web sites cont aining objectionable words.108 One problem will all filtering software is that software vendors, rather than librarians, are making the filtering decisions because filtering software is proprietary.109 When librarians select Internet filtering software, they are not able to base their choices on the librarys collection development policies, as they do in acquiring books a nd other materials.110 In choosing commercial filtering software, librarians would not be able to determine if the filters met their needs because software companies do not disclose their standards.111 Therefore, librarians would have no way of knowing which content has been blocked, as the district court noted in its opinion on the Childrens Internet Protection Act of 2000.112 After the Supreme Court upheld the Childre ns Internet Protection Act in 2003, public libraries receiving E-rate and LSTA technology funding were require d to install In ternet filters 107 See Peltz, supra note 58, at 404-05. 108 See Peltz, supra note 58, at 405-06. 109 Am. Library Assn v. United States, 201 F. Supp. 2d 401, 462-64 (E.D. Pa. 2002). See also Legislative Proposals to Protect Children from Inappropriate Materials on the Internet : Hearing on H.R. 3783, H.R. 774, H.R. 1180, H.R. 1964, H.R. 3177, and H.R. 3442 before the Subcomm. on Telecomm., Trade and Consumer Protection of the H. Comm. on Commerce 105th Cong. 40 (Sept. 11, 1998) (statement of Jerry Berman, executive director for the Center for Democracy and Technology, referring to S.1619, the Internet School Filtering Act). 110 See AM. LIBRARY ASSN, BEST PRACTICES IN PUBLIC LIBRARIES, available at http://www.ala.org/ala/shadows/pla/resources/bestpractices.cfm For a discussion of lib rary collection decisions, see supra Chapter 2, pp. 50-52. 111 See Legislative Proposals to Protect Children from Inappropriate Materials on the Internet : Hearing on H.R. 3783, H.R. 774, H.R. 1180, H.R. 1964, H.R. 3177, and H.R. 3442 before the Subcomm. on Telecomm., Trade and Consumer Protection of the H. Comm. on Commerce 105th Cong. 40 (Sept. 11, 1998) (statement of Jerry Berman, executive director for the Center for Democracy and Technol ogy, referring to S.1619, the Internet School Filtering Act). 112 Am. Library Assn v. United States, 201 F. Supp. 2d 401, 462-64 (E.D. Pa. 2002). For a discussion of the court cases deciding the Children s Internet Protection Act, see Chapter 7. 137

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on all of their computers, not just those f unded by the federal government or accessible to minors.113 With the ever-changing nature of the Web and more than 231 million Web sites in existence in 2009,114 software providers are unable to keep up with the white list and blacklist methods.115 The manual classification involved with each method has become impractical and inefficient, even for companies that design filt ering software, and the cl assifications would not be accurate.116 While keyword blocking has improved,117 it does not necessarily address the CIPA, which only deals with visual depictions,118 unless descriptions of the images are listed on the Web page and those descriptions cont ain keywords that ha ve been blocked. Filtering Software Studies At the time Congress passed the Childr ens Internet Protection Act in 2000,119 and also when the Supreme Court was hearing the case in early 2003,120 the available Internet filtering software programs were much less effective at bl ocking sexually explicit images than were later programs. Filtering technology improved from 2003 through 2008,121 but filtering software 113 See United States v. Am. Library Assn 539 U.S. 194, 230-31 (2003). 114 Netcraft, April 2009 Web Server Survey (2009) http://news.netcraft.com/archives/web_server_survey.html (last visited July 20, 2009). 115 See Hammami et al., supra note 9, at 272. 116 See Hammami et al., supra note 9, at 272. 117 Early filtering software did not consider context, such as naked breasts and breast cancer, but newer software seems to be more effective at blocking the former and not blocking the latter. See infra notes 163-168 and accompanying text for a discussion of WebGuard filtering software and infra notes 184-204 and accompanying text for a discussion of the Deloitte study. 118 Pub. L. No. 106-554, 114 Stat. 2763 (2000) (codified at 20 U.S.C. 9134(f) and 47 U.S.C. 254 (h)). 119 Id. 120 See United States v. Am. Library Assn 539 U.S. 194 (2003). 121 See DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 11. See also HEINS, supra note 58, at 45; Filtering Software: Better, But Still Fallible, CONSUMER REPORTS, June 2005, at 36. 138

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continues to block content that would not be co nsidered sexually explicit or harmful to minors and fails to block content that is se xually explicit or harmful to minors.122 From 2000 to 2002, some of the software progr ams filtered out many sites that would not be considered pornographic or harmful to minors. During this time period, four Internet filtering research studies were undertaken in the United States, though none focused exclusively on images, which is the sole focus of the Childrens Internet Protection Act.123 The results of all of the four studies showed that, depending on the level of filtering, the software blocked some pornographic material but still let thousands of pornographic Web sites through. The research was conducted for Consumer Reports,124 the School Library Journal ,125 the Kaiser Foundation,126 and the National Research Council.127 In its study of Internet filte rs in 2000, the same year Congress passed the Childrens Internet Protection Act, Consumer Reports tested six of the most widely used software 122 See DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 11. According to the Deloitte study, overblocking occurs when the filter blocks good cont ent, and underblocking occurs when the filter does not block unwanted content. See also HEINS, supra note 58, at 45; Filtering Software: Better, But Still Fallible, CONSUMER REPORTS, June 2005, at 36. 123 Libraries receiving federal funding through the Library Services and Technology Act or the E-rate are required to install a technology protection measure, such as filtering software, on all computers connected to the Internet to prevent access by all patrons to visual depictions that ar e obscene, access by all patrons to visual depictions that contain child pornography, and access by persons under th e age of seventeen to visual depictions that are considered harmful to minors. See 20 U.S.C. 134(f)(1) and 47 U.S.C. 254 (h)(5)(B) & (h)(5)(C) and 47 U.S.C. 254 (h)(6)(B) & (h)(6)(C). For a discussion of the Childrens Internet Protection Act, see Chapter 7. 124 Consumer Reports is a public interest magazine that rates a vari ety of consumer products and services, including appliances, automobiles, home and garden equipment, and electronic equipment. http://www.consumerreports.org/cro/index.htm (last visited July 20, 2009). 125 Librarians Ann Curry & Ken Haycock surveyed librarians and released their findings in 2001. 126 The Kaiser Foundation, which is not affiliated with Kaiser Industries or Kaiser Permanente, is an independent, national health philanthropic organization that provides information and analysis on health issues to policymakers, the media and the general public. For further information, see http://www.kff.org/ (last visited July 20, 2009). 127 The National Research Council (NRC) was organized by th e National Academy of Sciences in 1916 to associate the broad community of science and technology with the Academys purpose of furthering knowledge and advising the federal government. The Council has become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering. http://sites.nationalacadem ies.org/nrc/index.htm (last visited July 20, 2009). 139

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packages,128 as well as America Onlines (AOL) parent al controls. The study defined protection as the ability to block Web s ites containing objectionable materi al, such as sexual content or promotion of crime, bigotry, violence, tobacco, or drugs, with failure to block at least 35% defined as poor.129 The partial blockage of a siteshowi ng images but no words, or words but no imageswas considered less effective than total blockage.130 When software analysis (the rapid content analysis of a Web site by software) was used, most software tested by Consumer Reports blocked both words and images on 80% of objectionable sites,131which contradicted the test run in 1999 on the Basic Artifi cial Intelligence Routine (BAIR).132 BAIR used artificial intelligence and was touted as being capable of recognizing pornographic images with 99% accuracy.133 However, in one independent test, the BAIR system correctly labeled only twothirds of a set of pornographic images,134 thus missing one-third of the sexually explicit images. In another test, the BAIR system failed to bloc k any of fifty pornographic images being tested.135 The Consumer Reports study in 2000 found human analysis and site labeling less effective, with 128 The stand-alone software programs tested were CyberP atrolversion 4, Cybersitter2000, Cyber Snoop, Internet Guard Dog, Net Nannyversion 4, and Norton Internet Security 2001 Family Edition. 129 Digital Chaperones for Kids, supra note 91, at 20, 23. Consumer Reports assigned a poor rating to filtering software that failed to block 35% or more of porn sites. 130 Digital Chaperones for Kids, supra note 91, at 20, 23. 131 Digital Chaperones for Kids, supra note 91, at 20-23. 132 See Geoffrey Nunberg, The Internet Farce: Why Bl ocking Software Doesntand CantWork as Promised, AM. PROSPECT (Jan. 1-15, 2001) at 32. The Basic Artificial Intelligence Routine was developed by Exotrope, a company in Elmira, New York. 133 Id. at 28, 32. 134 Id. 135 See Bennett Haselton, BAIR "Image filtering" Has 0% Accuracy Rate, available at http://www.copa commission.org/papers Peacefire conducted the test on BAIR and presented its findings to the COPA Commission, which issued information and a final report on the Child Online Protection Act. See Chapter 5 for a discussion of the Child Online Protection Act. P eacefire.org is an anti-filtering organization, which was created in 1996 to represent the interests of people under 18 in the deba te over freedom of speech on the Internet. See peacefire.org. 140

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the former being time consuming and subject to the Webs volatility and the latter being dependent on the honesty of the Web site manager.136 The failure to block objectionable sites ranged from 14% (AOLs Young Teen) to 90% (CyberSnoop).137 While AOLs Young Teen or Kids Only setting provided the best protection, the study indicated it would likely restrict access to Web sites addressing politic al or social issues, too.138 In its summary, Consumer Reports stated that most of the products tested fa iled to block one objectionable site in five.139 In 2000, the same year that Consumer Reports tested filtering software, two librarians sent a survey to a random sample of School Library Journal subscribers.140 The study found that 96% of both school and public libraries had an Acceptable Use Policy whether or not they filtered access to the Internet.141 A significant percentage of the members of the public and school library staffs understood li ttle about how their filtering software worked, although public librarians were slightly more knowledgeable. Nineteen percent of public librarians lacked information about their librarys keyword blocki ng, 27% lacked information about site blocking, and 60% lacked information about Web rating systems.142 Because of the confusion surrounding the various levels and ranges of filtering that users could select, the authors reported that the 136 See Digital Chaperones for Kids, supra note 91, at 20, 21. 137 Norton Internet Security 2001 failed to block 20% of objectionable sites, Cybersitter 2000 failed block 22% of objectionable sites, Cyber Patrol/version 4 failed to block 23% of objectionable sites, Internet Guard Dog failed to block 30% of objectionable sites, and Net Nanny version 4 failed to block 52% of objectionable sites. See Digital Chaperones for Kids, supra note 91 at 20, 23. 138 Digital Chaperones for Kids, supra note 91, at 20, 22. 139 Digital Chaperones for Kids, supra note 91, at 20, 23. 140 In April 2000, surveys were mailed to 2,000 school libra rians and 1,000 public librarians. A total of 731 surveys (266 of those from public libraries) were returned, for a response rate of 24%. Curry & Haycock, supra note 4, at 42, 47. 141 Curry & Haycock, supra note 4, at 42, 44. 142 Curry & Haycock, supra note 4, at 42, 45. 141

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results of the study were more informative than conclusive. Th e study indicated that 55% of public libraries used vendor-supplied keywords or phrases for keyword blocking, while 15% added their own words and phrases to the list.143 However, more than half of the librarians did not know whether they had access to the list of blocked sites.144 In 2002, the Kaiser Foundations comprehensiv e study on how Internet filters affected the search for online health information found that the Internet filters most frequently used by schools and libraries can effectively block porno graphy without significantly impeding access to online health informationbut only if those filters arent set at their most restrictive levels.145 The results showed that filters set at higher le vels blocked access to a substantial amount of health information, with only a minimal increase in blocked pornographic content.146 Researchers tested the six most commonly used f ilters at the least, intermediate, and most restrictive settings.147 At the least restrictive level, the filters incorrectly blocked an average of 1.4% of health sites. When set at the most restri ctive level, filters blocked 24% of health sites. Blocking of sites on sexual health issues, such as condoms and safe sex, was higher at all levels: from 9% at the least restrictive setting to as mu ch as 50% of all sites at the most restrictive setting. The amount of pornographic content bl ocked was found to increase only marginally, 143 Curry & Haycock, supra note 4, at 42, 45. 144 Curry & Haycock, supra note 4, at 42, 45, 47. 145 VICTORIA RIDEOUT ET AL., KAISER FAMILY FOUNDATION, SEE NO EVIL: HOW INTERNET FILTERS AFFECT THE SEARCH FOR ONLINE HEALTH INFORMATION 1, 6-9 (2002), available at http://www.kff.org/entmedia/20021210aindex.cfm 146 Id. 147 The study was conducted for the Henry J. Kaiser Family Foundation by Dr. Caroline Richardson of the University of Michigan Medical School Dr. Paul Resnick at the University of Michigan School of Information and Victoria Rideout, MA, with the results published in the December 11, 2002 issue of The Journal of the American Medical Association (JAMA). See Caroline Richardson et. al., Does Pornography-Blocking Software Block Access to Health Information on the Internet? 288 JAMA 2887-2894 (Dec. 11, 2002). 142

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from 87% at the least restri ctive configuration to 91% at the most restrictive level.148 Meanwhile, researchers found that incidental exposure to online pornography duri ng health information searches did not appear to be a substantial problem and filters can reduce but not eliminate such incidental exposure.149 In a 2002 report on youth, pornography and the In ternet, a National Research Council committee concluded that all filter s both blocked protected material (a false positive) and failed to block material that could be consider ed harmful to minors (a false negative).150 The committee reported that filters could be highly effective in reducing minors exposure to inappropriate content if librarians and teachers were wil ling to accept the inaccessibi lity of large amounts of appropriate and acceptable material.151 The committee stated that an effective framework for protecting children from inappr opriate online materials would require a balanced composite of technical, legal, economic and educational approaches.152 A 2004 PC Magazine review that rated seven software filtering packages did not assign excellent153 ratings to any of the filtering software packages but did rate two of the seven as very good.154 The study found that none blocke d all inappropriate content.155 By 2005, 148 RIDEOUT, supra note 145, at 6-9. See also Richardson et al., supra note 147, at 2887-2894. 149 RIDEOUT, supra note 145, at 1, 7 (2002). See also Richardson et al., supra note 147, at 2887-94. 150 See Youth, Pornography and the Internet, supra note 34, Sec. 12.1 at 275-80. The committee studied tools and technology for protecting children from online pornography and other inappropriate content on the Internet. 151 See Youth, Pornography and the Internet, supra note 34, Executive Summary at 10. 152 See Youth, Pornography and the Internet, supra note 34, Executive Summary at 13. 153 Jay Munro, Filtering Software, PC MAGAZINE, Aug. 3, 2004, at 103. 154 The reviewers had five scores from which to choose: poor, fair, good, very good and excellent. Reviewers gave very good ratings to Cybersitter 9.0 and Net Nanny 5.0. PC Magazine also evaluated CyberPatrol 6.2, EnoLogic NetFilter Home 3.0, iProtectYou Pro Web F ilter 6.03, Norton Parental Control, and Safe Eyes Platinum. Id. at 102. 155 Id. at 103. 143

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filtering technology had become better at blocking pornography but was still fallible, according to a 2005 Consumer Reports article,156 the most recent year the magazine conducted a study. Consumer Reports evaluated eleven filtering software packages157 as very good to excellent at keeping out most pornography,158 but the best filters also blocked sites containing information on health issues, sex education, civil rights and politics.159 In a 2006 public policy report pr epared for the Brennan Center for Justice at New York University School of Law, researchers concluded that while filtering software studies from 2001 through 2005 tended to be less an ecdotal and more statistical,160filters continue to block large amounts of valuable information.161 The authors report that even a 1% error rate can result in millions of sites being erroneously blocked.162 A filtering technology study conducted in 2006 comb ined textual, structural and visual content analysis. A team of computer scientis ts developed a system called WebGuard, which they described as an automatic, machine lear ning-based pornographic We b site classification and filtering system.163 Visual content analysis in comb ination with skin color modeling 156 See Filtering Software: Better, But Still Fallible, CONSUMER REPORTS, June 2005, 36. 157 Consumer Reports reviewed SafeEyes 2005, Microsoft Parental Controls 9.1, CyberPatrol 7.0, Norton Internet Security 2005, McAfee Privacy Service 2005/Version 7, CyberSitter 9.4, AOL Parental Controls 9.0, ContentBarrier X 10.1, Net Nanny 5.1, iProtectYou Pro 7.1 and KidsNet. Id. at 38. 158 Id. at 36. The reviewers had five scores from which to choose: poor, fair, good, very good and excellent. 159 Id. at 36-37. 160 HEINS, supra note 58, at 45. 161 HEINS, supra note 58, at 73. 162 HEINS, supra note 58, at 46. 163 Hammami et al., supra note 9, at 272. 144

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distinguished this filtering program from previous ones.164 The software relies on text, including 300 keywords extracted from six languages,165 visual images and skin color modeling 166 The researchers reported that WebGuards effectiveness ranged from 95.6% to 97.4% in correctly classifying Web sites as pornographic or non-pornographic.167 For one study, the researchers selected 200 adult sites and 200 non-pornographic sites, and for another study, they used 12,311 adult Web sites manually classified by the French Ministry of Education.168 In 2007, the U.S. District Court for the Easter n District of Pennsylvania stated that Interning filtering technology had improved.169 In reviewing testimony provided in 2006, the court said that filtering softwa re could block any Internet ap plication, including Web sites, email, chat rooms, instant messaging, peer-to-peer file sharing, newsgroups, streaming video and audio, Internet television and voice over Internet protocol ("VoIP").170 Also by 2006, the court said that filtering software designers had de veloped dynamic filtering products, which used artificial intelligence to screen content in real-time by analyz ing Web site content as it was 164 Skin color modeling is a way of looking at skin-color pixels to determine if an image is likely to be pornographic or not, with the goal of distinguishing, for ex ample, health related and underwear advertisements from sexually explicit images. Hammami et al., supra note 9, at 273-77. 165Hammami et al., supra note 9, at 283. The authors did not clarify the keyword classification. 166 Hammami et al., supra note 9, at 273-77. 167 Hammami et al., supra note 9, at 283. 168 Hammami et al., supra note 9, at 272-73. The Web sites chosen had been black listed by the French Ministry of Education. 169 ACLU v. Gonzales 478 F. Supp. 2d 775 (E.D. Pa. 2007). The co urts discussion of filtering technology was based on witnesses testimony delivered in 2006. Id. at 795-97. In Gonzales, the court struck down the Child Online Protection Act, stating that it violated the First Amendment. Id. at 821. The Child Online Protection Act would have prohibited Web sites from knowingly distributing, for commercial purposes, any material deemed harmful to minors to persons under the age of seventeen. If found guilty, the Web site operator could be fined up to $50,000, imprisoned for up to six months, or both. See 47 USCS 231 (a) and (e) (7). In striking down the Child Online Protection Act, the court wrote, Although filters are not pe rfect and are prone to some over and under blocking, the evidence shows that they are at least as effective, and in fact, are more effective than COPA in furthering Congress' stated goal (of preventing minors from accessing online material deemed harmful to minors.) Gonzales, 478 F. Supp. 2d at 815. For a discussion of the Child Online Protection Act and the cases deciding the Act, see Chapter 5. 170 Gonzales, 478 F. Supp. 2d at 791. 145

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being requested. 171 The filters could evaluate different parts of the content to determine whether it should be blocked,172 based on categories of material that the computer user or parent wanted blocked, such as sexually explicit content.173 Dynamic filters evaluate cont ent the user can see, as we ll as content th e user cannot see.174 The filters analyze a number of component s on the Web page, including words on the page, the file names for images, the size of images, the links on a page, the formatting of the page, and the URLs. The filtering products analyze s tatistical pattern rec ognition features, such as the spatial patterns between certain words a nd images, which often can help filters categorize content even if the actual words are not recognized. The filters also evaluate metadata, the hidden information contained in the software code Dynamic filters consider the context of the page in an effort to determine if the filtering analysis is accurate in blocking access to content.175 Many companies developed templates to allow th e software to recognize context. For example, the word breast would be blocked when used with the word sexy, but not with the words chicken or cancer.176 Many filtering packages allowed parents to block access to content based on age groups. For example, the district court said that AOL's filtering product enabled parents to choose from four different age settings: kids only, young t een, mature teen, and general (unrestricted 171 Id. at 790-91. 172 Id. 173 Id. at 795. 174 Id. at 790-91. 175 Id. 176 Id. at 791. 146

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access).177 Parents also could set up individual accounts in the filtering program to block different content for each member of the family.178 Software products would allow parents to choose a more restrictive setting for younge r children, which would block 95 to 99% of categories of content parents might want to block, including pornography.179 The district court stated that filtering programs contained built-in mechanisms to prevent children from bypassing or circumventing the filt ers, such as password protection devices and tamper detection devices. When a computer user, such as a minor, tried to uninstall or disable the filtering software, the filter could be configured to cut off all Internet access until someone, such as a parent, reconfigures the software.180 The district court stated that the vast majority of filtering software products blocked at least 95 percent of sex ually explicit pages,181 a percent that Professor Cheryl Preston said that the district court saw as acceptable. However, Preston argued that filters blocking 95% of sexually explicit content would allow access of up to thirty-five million pages of sexually explicit content.182 At the same time, filters continued to block constitutionally-protected speech, she said.183 177 Id The court said that AOL defined kids as those un der the age of twelve, young teens as thirteento fifteen-years-old, and mature teens as sixteen-years-old. Twel ve-year-olds were not listed in either category. Id. The Deloitte study, conducted for the European Union in 2008, used two age categories when evaluating filtering products: ten and under and eleven to sixteen. See DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 12, infra notes 189-190 and accompanying text. 178 Gonzales 478 F. Supp. 2d at 791. 179 Id. at 795. The percentages of content blocked varied by filtering product. Id. A less restrictive setting, which the court said could be used by parental discretion for teenagers, could block 90% of pornographic content. 180 Id. 181 Id. at 796. 182 Cheryl Preston, Zoning the Internet: A New Approach to Protecting Children Online, 2007 B.Y.U. L. REV. 1417, 1450 (2007). Preston said that the district court accepted testimony that estimates of se xually explicit pages in 2006 ranged from 275 million to 700 million. If filtering software failed to block 5% of the 700,000,000 sexually explicit pages, the software would allow 35,000,000 sexually explicit pages through. Id. at 1450, n. 193. But see How Many 147

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In a 2008 study conducted by Deloitte for the European Union, the researchers reported that the accuracy of Internet filters improved when compared to filters evaluated in 2006 and 2007.184 The researchers evaluated the twenty-six filte ring products that they said were the most used, but they did not incl ude WebGuard in their study.185 A graph included in the Deloitte study indicated that the better that the filtering soft ware was at blocking access to harmful material, Web Sites Exist? (Feb. 15, 2007) http://www.boutell.com/newfaq/misc/sizeofweb.html (last visited July 20, 2009). In 2007, about 29.7 billion pages existed, according to the latest estimate released by boutell.com. Id. If 1% of Web pages are estimated to be pornographic, then 297,000,000 web page pages would be pornographic in 2007. If filters blocked 5%, about 14.8 million pornographic pages would still be accessible. However, that number is less than half the number that the federal district court accepted as fact during the trial for the Child Online Protection Act. See ACLU v. Gonzales 478 F. Supp. 2d 775, 788 (E.D. Pa. 2007) (holding unconstitutional a statute providing both criminal and civil penalties for Web site owners transm itting sexually explicit materials and communications on Internet sites available to minors.) For a discussion of the Child Online Protection Act, see Chapter 5. According to Preston, 14.8 million pornographic pages is still a high number that would not be blocked. See Preston at 1450. If the computer user adjusted the filtering software to a more restrictive setting, and all but 1% of pornographic content was blocked, about 2.9 million pornographic Web pages would be accessible. 183 Preston, supra note 182, at 1451. Preston argued in favor of Internet zoning, in place of filtering. Zoning would separate, rather than block, content. Id. at 1432. In a zoning construct, different content would be assigned to different ports, similar to the ch annel line-up on cable television. Id. at 1429. She said that more than 65,000 ports exist in cyberspace, but only ten to twenty of the ports are used. Id. at 1427. Currently all Web content uses one port. Id. at 1431. Under the zoning system, Web site operators with content that was pornographic or harmful to minors would add a free programming code to their server, and the content would be assigned to the adult port. Id. at 1433, 1468-69. Content that was not pornographic or harmful to mino rs would be accessible on community ports. Id. at 1431-34. Parents could then decide which ports they wanted to block from their homes. Id. at 1437. Preston said that Congress would need to pass legislation to enforce a zoning construct. Id. at 1434-36. Preston did not discuss how Web site operators would dete rmine if material was harmful to minors. 184 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 4 (2008). The auth ors also reported that filters were easier to operate in 2008. The researchers evaluate d twenty-six filtering products: AOL Parental Controls, Blueprint Data Kidsnet, Cogilab Surfpass 4, Computer Associates Internet Security Suite 2008, Computer Associates Secure Content Manager, Easybits Magic Desk top, Editions Profil Parental Filter, F-Secure Internet Security 2008, Intego Internet Security Barrier X5 (Platinum Edition), Internet safety.com Ethershield, Internetsafety.com SafeEyes, McAfee Security Suite McAfee Total Protection, Microsoft Vista Ultimate, MicroWorld eScan Inte rnet Security Suite, Norman Security Suite Open Source DansGuardian, Open Source Poesia, Optenet Internet Security Suite (Appliance), Optenet Web Filter PC, Point Clark Networks Clark Connect, Smoothwall School Guardian 2008, SoftForYou Cyberserve, Symantec Norton Internet Security Suite 2008, Telocator Brightfilter, and Trend Micr o Internet Security Suite 2008. DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 12. 185 The Deloitte researchers chose the most commonly used filtering software. They did not identify the best program, stating that the goal of the study was not to provide guidance to prospectiv e customers, but rather to benchmark the main functionalities of the most used filtering software. DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 2. 148

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the worse the software was at allowing access to harmless material.186 For example, if 80% of bad content was blocked, nearly 30% of good content was blocked. If 90% of bad content was blocked, nearly 70% of good content was blocked.187 The researchers stated that f iltering software programs releas ed in 2008 did a better job at blocking access to pornography sites than past versions of the software.188 The best performing filtering program in 2008 scored a 4. 0, the top score, for blocking pornography from children ten and under, and a 3.5 out of 4.0 for blocking pornogra phy from minors from eleven to sixteen.189 In contrast, when all twenty-six filtering tools were included, the average score 186 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 5. The problem of failing to block bad y on the and stories d d nd death er death kicks, and stories to solve ISK SERVICES, SAFER INTERNET: TEST AND METHODOLOGY at 9-13 (2008), available at http://www.sip- content was labeled underblocking. The problem of blocking of good content was labeled overblocking. 187 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 5. The European Union funded a stud effectiveness of filtering software, which was conduc ted in 2008 by Deloitte. The study evaluated filtering programs ability to block text or pictures in eight categ ories, with each category co ntaining five to eleven subcategories. Content was labeled bad if text or pictures 1) could impair minors moral or social development and may have a traumatising [sic] effect on youngsters, such as blood scenes or scenes with seriously injured people and pictures and stories about cruelty to animal s; 2) could impair minors sexual development, and may have a traumatising [sic] effect on youngsters, such as sex accompanie d by pain, injury or humiliation hardcore sex, ejaculation, erection, de fecation, urination, bestiality, [and] necrophilia; 3) could impair minors emotional and mental development, and may have a trau matising [sic] effect on youngsters, such as coarse language and scenes that confuse facts and fiction with respect to violence; 4) could instigate damage to another, and may encourage youngsters to commit acts of rape or harassment, including inspiring snuff videos that show (played or reality) rape, games that simulate rape or harassment and positioning rape, torture, sadistic violence, [or] terrorism as cool; 5) could instigate damage to anothers life, and may enc ourage youngsters to commit acts of murder or terrorism, such as inspiring snu ff videos that show (played or reality) murder, that convince youngsters to so lve their problems by mass murder, games that simulate murder or terrorism an video of actual acts of terrorism; 6) could instigate damage to anothers freedom and rights, and may encourage youngsters to commit acts of strike, sabotage, hack ing, theft, disclosure, or racism, such as calls to youngsters for sabotage or strikes, s tories that claim hacking or theft is harmless, calls to disclose information about the parents, and stories that cl aim other races are inferior; 7) could instigate damage to him/herself, an may encourage youngsters to abuse drug s, meet strangers or gamble, such as stories that claim that medicines or drugs are harmless, calls to join a religious sect, invitations to meet a person they only know remotely, a invitations to gamble or bet; 8) could instigate damage to his/her life, and may encourage youngsters to kicks or to commit suicide or abortion, such as stories that convince yo ungsters to solve their problems by committing suicide, stories, pictures and videos of death races or oth unplanned pregnancy by self-made abortion. DELOITTE ENTERPRISE R SCORING bench.eu/Reports2008/sip_bench_2008_methodology_report_en.pdf 188 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 6, 9, 31. 189 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 12. The researcher s did not identify the best program, stating that the goal of the study was not to provide guidance to prospectiv e customers, but rather to 149

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for blocking pornography was lower: a 2.8 for children ten and under, and a 2.8 for elevento sixteen-year-olds.190 The researchers said that software vendors were having a harder time keeping up with all of the changes in pornograp hy sites than in keeping up with changes in dating, drug, and hatred sites.191 The researchers also said that filtering software designed in 2008 was not as effective at blocking access to po rnography sites established in 2006 as it was at blocking access to pornography si tes established in 2007 and 2008.192 Because of the problem with blocking acce ss to harmless content in the eight categor gram g ies included in the study, th e researchers gave the best performing software pro only a score of 2.5 out of 4.0, or a fairly good rating, in 2006, 2007 and 2008.193 The researchers faulted the choice of keywords used to block content, stating that the filterin products provided little or no clarity on the t ype of words that trigger the content to be benchmark the main functionalities of the most used filtering software. Id. at 2. The values assigned to the same rating were different for the two age groups studied, with mo re restrictive parameters used for younger children. For children six to ten, a 4.0 rating meant that one out of thirty-two bad (pornographic) pages was not blocked or one out of eight good (non-pornographic) pages was blocked. For children eleven to sixteen, a 4.0 rating meant that one out of sixteen bad (pornographic) pages was not blocked or one out of sixteen good (non-pornographic) pages was erroneously blocked. The best filtering package for elevento sixteen-year-olds scored a 3.5, meaning that one out of twelve bad (pornographic) pages was not blocked or one out of twelve good (non-pornographic) pages was erroneously blocked. Id. at 27-29. See supra note 187 for the list of content categories used in the study. 190 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 12. For children six to ten, a 2.8 rating meant that about one out of sixteen bad pages was not blocked or about one out of four good pages was blocked. For children eleven to sixteen, a 2.8 rating meant that about one out of eight bad pages was not blocked or one out of eight good pages was erroneously blocked. Id. at 27-29. 191 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 31. The researchers did not explain why filtering programs had a harder time keeping up with changes on pornographic Web sites. But see infra notes 196 to 197 and accompanying text for a discussion of the problems with Web sites containing user-generated content. 192 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 31. The researchers did not discuss why the filtering software was not as effective at detecting the pornography sites established in 2006 as it was at detecting sites established in 2007 and 2008. 193 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 27. The rating evaluated all the defined harmful content, and not just pornography. For the list of categories, see supra note 187. The value assigned to a 2.5 rating was different for the two age groups studied. For children six to ten, a 2.5 rating meant that one out of sixteen bad pages was not blocked or three out of eight good pages were blocked. For children eleven to sixteen, a 2.5 rating meant that one out of six bad pages was not blocked or one out of six good pages was erroneously blocked. 150

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blocked.194 The study also showed that individual users of a computer could not customize the filtering software, so the same filtering criteria were applied whether the user was a young child, teen-ager, parent or teacher.195 In contrast to other researchers stud ies on filtering software, the Deloitte group addressed the effects of user-generated online co ntent on the effectiveness of filtering software programs. Because Internet users can post conten t on interactive sites instantaneously, filtering software vendors cannot keep up with the changes.196 For example, Internet users can post video clips on YouTube and MySpace, or post harmful scenes in Second Life.197 The Deloitte group recommended that filteri ng software vendors develop a product that would allow the products end users to classify content.198 The Deloitte researchers stated that a filtering policy or model would need to be developed that would include a standard set of criteria that the users would be able to evaluate.199 The researchers said that a user-based model needs to be implemented so that Internet users are not relying solely on the software vendors assessment of content.200 Parents and teachers should be able to select and combine those 194 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 35. The researchers did not elaborate further or provide examples. 195 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 35. 196 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 14. 197 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 14. YouTube is a Web site that allows visitors to post videos. See YouTube.com. MySpace is a Web site that allows us ers to set up a profile and post information, photos and videos. See myspace.com Second Life is a 3D, virtual community, where visitors design avatars to interact with othe r users avatars. See http://secondlife.com/ (last visited July 20, 2009). A major social networking site not mentioned in the study is F acebook, which is similar to MySpace. See facebook.com. For a description of harmful content and a list of exam ples used in the Deloitte study, see supra note 187. 198 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 5, 15. Deloitte defined end users as people who are using Internet filters to access or block online content. 199 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 33. The researchers did not list examples of criteria. However, for the crit eria used in their study, see supra note 187. 200 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 5 151

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criteria that best suit the need s of their own children and not have to assume that the vendor knows what is best for their ch ildren, the re searchers wrote.201 User-based software classification would invol ve three steps, according to the Deloitte study. First, individual users woul d classify or rate content ag ainst a number of standard or agreed upon criteria.202 Second, like-minded people, such as parents and teachers, could select the criteria most important to them and block content they did not want their children or students to view.203 Third, users accessing others classifi cations would be able to rate the accuracy of the classifications, similar to how co nsumers rate online vendors, thus attaching a confidence rating to the user who originally classified the content.204 Conclusion During the first decade of the twenty-first centu ry, researchers have reported that while Internet filtering technology can be effective in blocking access to a large percentage of pornography, it is not a panacea.205 In 2003, the American Library A ssociation stated that filters still were not sophisticated enough to dis tinguish pornography from art or literature.206 In 2006, WebGuards textual and visual content analysis features, including the use of skin color modeling to distinguish pornography from nonpornographic visuals, was an improvement. 201 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 7. 202 A family, school or other group could determine a set of criteria, according to the researchers. DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 5, 15. See supra note 187 for a list of the categories used in the Deloitte study. 203 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 5, 7. 204 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 15. 205 See RIDEOUT et al., supra note 145, at 1, 6-9; Filtering Software: Better, But Still Fallible, CONSUMER REPORTS, June 2005, at 36; HEINS, supra note 58, at ii; DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 10, 27. See also Peltz, supra note 58, at 478-79. See Chapter 8 for an analysis of the technical and legal aspects of Internet filtering in the public library setting. 206 See Am. Library Assn, Libraries & the Internet Toolkit (last updated Dec. 1, 2003), at 10, http://www.ala.org/ala/aboutala/offices/oif/iftoolkits/litoolkit/default.cfm (last visited July 20, 2009). 152

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However, WebGuard was in the testing stage in 2006, and no further studies have been released to determine its effectiveness on more recent content. In 2008, the Deloitte research team stated that filtering technology had improved since 2006, especially in blocking pornography. Nonethel ess, its report showed that while a less restrictive filter setting would allow access to more good content, the filter would not block as much bad content. Conversely, a more restrict ive setting would block mo re bad content, but at the same time erroneously prevent access to more good content.207 The Deloitte researchers also found a problem with keyword blocking beca use the filtering software designers did not clarify how keywords were select ed and used to block content.208 They suggested that Internet filters would be more effective if software de signers developed a way for the products users to classify content according to family, religious or social group values.209 Meanwhile, anecdotal reports on the use of filtering programs in K-12 classrooms suggest problems on the reliance of proprietary so ftware, whether in schools or public libraries. For example, some students in 2005 were unabl e to conduct research in school because the filtering programs blocked Web sites on their topics, including the Motion Picture Association of Americas movie rating system book banning, smoking, medicinal us es of marijuana, sexually transmitted diseases, and the dangers of illegal drug use.210 That same year, reporter Lauren 207 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 10. For a list of the types of content measured in the study, see supra note 187. 208 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 35. The researchers did not elaborate further or provide examples. 209 DELOITTE, SAFER INTERNET: SYNTHESIS REPORT, supra note 30, at 5, 15. 210 See HEINS, supra note 58, at 70; Lauren Barack, Filters Impede Learning, 51 SCH. LIBRARY J. 24, 24 (2005); Rebecca Meeder, Access Denied: Internet Filtering Software in K-12 Classrooms, 49 TECHTRENDS 56, 56 (2005). 153

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154 Barack stated that some school librarians ha d used the default setting on filtering software without exploring whether that setting is the most appropriate.211 In 2008, students were still experiencing pr oblems in conducting online research. High school students in the Midwest complained that all Google search results and all blogs were blocked.212 A middle school teacher in the Midwest, who had assigned animal research papers, reported that the San Diego Zoo and University of Michigan Zoological Museum were blocked. The teacher also reported that a student could not access a map of Canada when trying to do a social studies assignment.213 A Wisconsin library media speciali st reported that students doing research on their favorite guitar players in 2008 found everything about their musicians blocked.214 Before the CIPA was enacted, Congress and the courts had grappled with how to protect minors from sexually explicit materi al, both online and in other me dia, while at the same time ensuring that adults had access to constitutionallyprotected sexual material. The solution settled on by Congress may be less than satisfactory for ma ny regulators and critics of the law, parents and children, and librarians and teachers. One fasc inating part of the debate about how to protect children from sexually explicit materials is whether there is any evidence that exposure to the content seen on the Internet harms children, and if so, at what age? The assumption of harm by many seems so intuitive that little attention is paid to the fact there is some available relevant research, research to be disc ussed in the next chapter. 211 See Barack, supra note 210, at 24. 212 Helen R. Adams, Filters and Access to Information, Part II, 25 SCH. LIBRARY MEDIA ACTIVITIES 54, 54 (October 2008). 213 Id. at 55. 214 Id.

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CHAPTER 4 THE PROTECTION OF MINORS FROM MATERIAL DEEMED HARMFUL Introduction The concern with protecting children from sexually explicit material is not new. However, the concepts of childhood and what is considered harmful have vacillated during the course of several centu ries. In the United States, statutor y and case law generally supports the role of parents to raise their children as they see fit, although the government has intervened on numerous occasions to protect the physical, ps ychological and emotional well-being of minors, including through the regulation of sexually explicit content, such as pornography. For the purposes of this dissertation, pornogr aphy is defined as follows: nonviolent material, such as writings, photographs, movies or Internet sites, depi cting sexual activity or erotic behavior between consenti ng adults in a way that is desi gned to arouse sexual excitement.1 Obscenity, as articulated by the U.S. Supreme Court in 1973 in Miller v. California,2 is defined as works which, taken as a whole, appeal to th e prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, ta ken as a whole, do not have serious literary, artistic, political, or scientific value.3 Indecency, as defined by the Federal Communications Commission in 1975, is language th at describes, in terms patently offensive as measured by 1 The definition of pornography is based on the definition in Blacks Law Dictionary, which reads: material (such as writings, photographs, or movies) depicting sexual activity or erotic behavior in a way that is designed to arouse sexual excitement. BLACKS LAW DICTIONARY (8th ed. 2004). The author of th is dissertation has added the terms Internet sites, nonviolent and b etween consenting adults to Blacks definition for clarification and to distinguish consensual nonviolent pornography from nonconsensual and/or violent pornography. The U.S. Supreme Court has never defined the term pornography, which is a vague term because it includes both protected sexual material and unprotected sexual mate rial, such as obscenity and rape. See ROBERT TRAGER, JOSEPH RUSSOMANO & SUSAN DENTE ROSS, THE LAW OF JOURNALISM AND MASS COMMUNICATION 384. The term pornography does not have a common definition or meaning. See DON R. PEMBER & CLAY CALVERT, MASS MEDIA LAW 12 (2005). 2 Miller v. California, 413 U.S. 15 (1973). 3 Id. at 24. The Miller obscenity test includes a local standard for judging whether a work is obscene, stating that "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest. Id. See infra notes 127-128 and accompanying text for a discussion of Miller. 155

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contemporary community standards for the broadcas t medium, sexual or excretory activities and organs.4 However, the FCC in 2001 clarified the definition of indecency and adapted the application of the definition to consider contex t and to examine how explicit or graphic the material is, whether the material dwells on sexual activities, and wh ether the material is meant to shock or sexually arouse the audience.5 In this chapter, the author will provide an overview of the changing view of the child and of material deemed harmful, as well as the governments view of th e role that parents play in the childrearing process. The author also will explai n the evolution of the regulation of obscenity and sexually explicit material, examine social sc ience studies that have tried to measure the effects of pornography on adults and children, an d analyze the federal go vernments first two attempts at trying to prevent minors from acce ssing sexually explicit material on the Internet. The Changing View of the Child For more than 6,000 yearsfrom the time of the ancient Greeks to the presentmany societies have raised concerns about the potential harmful effects of sexual content in fiction on children.6 In 400 B.C. Socrates strongly objected to the dissemination of Hesiods and Homers ugly and immoral stories.7 Though Socrates did not specifically mention sex,8 he believed that children should only be exposed to wholesome id eas and lessons because the earliest ideas a 4 FCC v. Pacifica Found., 56 F.C.C.2d 94, 97 (1975). 5 In the Matter of Industry Guidance On the Commission's Case Law Interpreting 18 U.S.C. 1464 and Enforcement Policies Regarding Broadcast Indecency 16 F.C.C.R. 7999, 8002-03 (2 001). The FCC issued a policy statement to provide guidance to broadcast licensees regarding compliance with the Commission's indecency regulations. Id. at 8016-17. 6 See Richard Jackson Harris, The Impact of Sexually Explicit Media, in MEDIA EFFECTS 247, 249 (Jennings Bryant & Dolf Zillmann eds., 1994). 7 WALTER KENDRICK, THE SECRET MUSEUM 35 (1996). 8 Id. at 36. 156

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child took in would become indelibly fixed within the childs mind.9 Ironically, Socrates was condemned to death for corrupting the youth in Athens10 by engaging in "impiety"irreverence towards the Supreme Being and contempt of the divine character and authority.11 The Greeks believed children needed to be tamed and educat ed, but they did not k eep children ignorant of sex and sexuality.12 For example, in ancient Athens a se xual relationship between an adult man and adolescent boy was not viewed as a crime against nature13 but rather as crucial to male socialization. The experience was considered a hi ghly valued sexual relationship that served as a pathway for learning and for intellectual development.14 The modern concept of childhood as a time of innocence did not come about in western society until sometime between the late 1500s and 1800s,15 although at least one historian has argued that emotional attachments were evident am ong English families as early as the thirteenth 9 Id. at 35. 10 Id. at 95. 11 David W. Allan, Socrates and Democracy (July 29, 2001), available at http://www.allanstime.com/Government/socrates_democracy.htm 12 MARJORIE HEINS, NOT IN FRONT OF THE CHILDREN: INDECENCY, CENSORSHIP, AND THE INNOCENCE OF YOUTH 15 (2001). Heins used the word tamed, but did not define it. 13 JOHN G. GAGNON, HUMAN SEXUALITIES 14 (1977). 14 Id. 15 The history and evolution of childhood is beyond the scope of this dissertation. For an overview of historians analyses of the evolution of childhood, see Margaret L. King, Concepts of Childhood: What We Know and Where We Might Go, 60 RENAISSANCE Q. 371 (2007). Historians disagree on the exact time period when the concept of childhood was invented or recognized. Some historians have argued that childhood was recognized as a separate stage of life in the late 1500s and early 1600s. During this time period, children had individual effigies on tombstones for the first time. See PHILIP ARIES, CENTURIES OF CHILDHOOD: A SOCIAL HISTORY OF FAMILY LIFE 42 (Robert Baldick, trans., 1962). During the 1600s, parents began to dress children in age-appropriate clothing, rather than miniature adult costumes, and adults no longer allowed children to gamble. BARBARA GREENLEAF, CHILDREN THROUGH THE AGES: A HISTORY OF Childhood 46 (1978). Other historians have stated that the concept of childhood emerged in the 1700s, due in part to the writings of Jean-Jacques Rousseau and others who described children as a symbol of natu re, goodness and innocence. GREENLEAF at 62. Still others have argued that the view of children as innocent beings needing protection came about in the 1800s when children were compared to women, who at that time were viewed as powerless, w eak and objects of veneration needing protection. See MARIE WINN, CHILDREN WITHOUT CHILDHOOD 112-13 (1983). See also HEINS, supra note 12, at 18-19; GREENLEAF at 32-40; ARIES at 18-19, 34-49, 411-15. 157

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century.16 However, prior to the fifteenth century, children often were viewed as property rather than as human beings. It was not uncommon for them to be killed, abandoned or sold into brothels.17 In ancient times, Moabites, Phoenicians a nd Ammonites believed that the gods liked human food, and they killed th eir children as a sacrifice.18 In 100 BC, Egyptian and Greek parents killed their infants to control population, prevent property disputes among sons, get rid of weak boys, and eliminate girls, who were c onsidered weak and th erefore less valuable.19 During the Middle Ages, most parents e xpected children to work in orde r to contribute to the household. By the 1700s, many children planted, weeded and harvested the family farm or were loaned out to help other farmers. Some children served as apprentices so that they could contribute to society and learn a useful skill,20 while other children became servants for another family.21 Historians have noted that th e worlds of the child and adult were integrated in many cultures as late as the sixteenth century. Parents could not shield children from the realities of life, even if they wanted to. Because of crow ding in homes, children often slept with their 16 See generally ALAN MACFARLANE, ORIGINS OF ENGLISH INDIVIDUALISM: THE FAMILY, PROPERTY, AND SOCIAL TRANSITION (1978), and ALAN MACFARLANE, MARRIAGE AND LOVE IN ENGLAND: MODES OF REPRODUCTION (1986). 17 See HEINS, supra note 12, at 16. See also WINN, supra note 15, at 207; King, supra note 15, at 384-90. But see MACFARLANE, ORIGINS OF ENGLISH INDIVIDUALISM, supra note 16 and MACFARLANE, MARRIAGE AND LOVE IN ENGLAND, supra note 16, in which he argues that emotionally-rich families cared about their children in the thirteenth century. 18 GREENLEAF, supra note 15, at 18, 26. The Moabites, who flourished in the 9th century BC, were West-Semitic people who lived in the highlands east of the Dead Sea in what is now west-central Jordan. Scholarly research suggests the Moabites lived from the 14th century B.C. to 582 BC. Phoenicians lived in the Mediterranean from 1200 B.C. to 900 B.C. The Ammonites, a people who were closely related to the Hebrews, established a kingdom east of Jordan in the 13th century BC. Ammonites were Semites, who were ethnically close to modern northJordanians and were in sporadic conflicts with the Israelite s. Their period as a distinct people lasted from the 13th century BC until the 3rd century AD; however, their kingdom lasted only until the 6th century BC. 19 GREENLEAF, supra note 15, at 18-20. Greenleaf noted that Israelis did not engage in infanticide. 20 GREENLEAF, supra note 15, at 26-32. 21 DARRETT RUTMAN, AMERICAN PURITANISM 8 (1970). 158

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parents and learned about sexual intercourse from witnessing it firsthand.22 Parents dressed their children as miniature adults and treated them as adults.23 Adults and children played the same games24 and gambled by betting on card games, backgammon, chess and cockfights.25 Adults and children joked about the same th ings, including sex and sexuality,26 and adults did not protect children from coarse language.27 During the sixteenth and early seventeenth centuries, few parents bonded with their children.28 Because of high infant mortality rate s in England and America in the 1500s and 1600s, parents did not become attached to their children.29 In the seventeenth century in America, Puritans30 viewed children as carriers of Original Sin31 and believed children needed to 22 See HEINS, supra note 12, at 17; GREENLEAF, supra note 15, at 37. Greenleaf also wrote that parents could not prevent children from witnessing fights and deaths on the battlefield. 23 GREENLEAF, supra note 15, at 40. 24 See ConspectusThe Association of American Law Schools, Section on Mass Communications Law 1997 Annual Conference Panel: Sex, Violence, Children and the Media: Legal, Historical and Empirical Perspectives, 5 COMMLAW CONSPECTUS 341, 350 (1997) (comments of Catherine Ross). 25 GREENLEAF, supra note 15, at 39. 26 See Sex, Violence, Children and the Media: Legal, Historical and Empirical Perspectives, supra note 24, at 341, 350. 27 See ARIES, supra note 15, at 103-09. 28 See LAWRENCE STONE, THE FAMILY, SEX AND MARRIAGE IN ENGLAND: 1500-1800 at 117 (1977). 29 See King, supra note 15, at 371, 372, who stated that infant mortality rates ranged from 25% to 50%; GREENLEAF, supra note 15, at 32, 82, who wrote that parents did not form attachments with their children because of the high child mortality rate, which exceeded 50% at times during this period. See also HEINS, supra note 12, at 38. 30 RUTMAN, supra note 21, at 4-10. Rutman stated that Puritanism is difficult to define and goes beyond simple religiosity. In discussing the concept of Puritanism, Rutman described it as a way of living in which men defined themselves, their society, their activities, and their institutions in terms of God. RUTMAN at 4. He wrote that English Puritanism was brought to the Colonies by immigrants who believed in the sovereignty of God, the Bible as paramount in revealing Go ds will, and the absolute necessity of submitting to the will of God. RUTMAN at 10. See also Perry Miller, The Puritan Way of Life, in PURITANISM IN EARLY AMERICA: PROBLEMS IN AMERICAN CIVILIZATION 4-12 (George M. Waller, ed., 1950). Similar to Rutman, Miller stated that Puritanism is more easily described than defined. He described Puritanism as a philosophy of life and code of values that revolved around the glory of God and the belief that God only communicated with humans through the Bible. See also THE PURITAN TRADITION IN AMERICA: 1620-1730, at 14-20 (Alden T. Vaughan, ed., 1972), which discussed the Puritans belief in predestination or selective redemption and in the glorification of God. 159

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be controlled and indoctrinated.32 During the eighteenth century, sexuality took another turn when a reaction against Puritanism resulted in more relaxed sexual standards. But by the nineteenth century, the new evangelical Christia nity movement emerged, spawning moral-purity crusades.33 In the late nineteenth century, educator s and social reformers emphasized both the importance of teaching children Puritan values a nd the need to prolong a childs innocence as long as possible.34 The middle and upper classes became increasingly worried about adolescents as literacy spread and as sex education materials and cheap novels became available.35 Because Christians viewed children as ve ssels of depravity and Original Sin, their virginity took on an interior and spiritual value.36 By the nineteenth century, youths interest in sex became a matter of public concern in the United States, and the public goal of protecting the morality of youth was central to the support of all censorship campaigns.37 Historian Alison Parker expl ained that from 1873 through 31 Puritans believe in Original Sin, a Christian doctrine that holds that all people are born sinners because Adam (the first man) sinned in the Garden of Eden when he ate the apple offered by Eve. According to this doctrine, the apple was the forbidden fruit of the knowledge of good and evil, which God told Adam and Eve to refrain from eating. See Original Sin Encyclopedia Brittanica, http://www.britannica.com/eb/ article-9057375/original-sin (last visited July 20, 2009). See also Original Sin MSN ENCARTA ENCYCLOPEDIA, http://encarta.msn.com/encnet/refpages/search.aspx?q=original+sin (last visited July 20, 2009). The Puritans believe that God, in his infinite mercy, has chosen to save only a few. See THE PURITAN TRADITION, supra note 30, at 1415. 32 HEINS, supra note 12, at 20. 33 See HEINS, supra note 12, at 25. See also PAUL BOYER, PURITY IN PRINT: THE VICE-SOCIETY MOVEMENT AND BOOK CENSORSHIP IN AMERICA 1-52 (1968); JOSEPH KETT, RITES OF PASSAGE: ADOLESCENCE IN AMERICA, 1790 TO THE PRESENT 41-54 (1977); Lynn Hunt, Introduction: Obscenity and the Origins of Modernity: 1500-1800, in THE INVENTION OF PORNOGRAPHY 12 (Lynn Hunt, ed., 1996). 34 See Sex, Violence, Children and the Media supra note 24, at 341, 350. 35 See HEINS, supra note 12, at 26. 36 See HEINS, supra note 12, at 16. 37 See ALISON M. PARKER, PURIFYING AMERICA: WOMEN, CULTURAL REFORM, AND PRO-CENSORSHIP ACTIVISM, 1873-1933 at 19 (1997). 160

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the 1930s, censorship was viewed as a useful tool for social change,38 and the regulation of both printed materials and the new motion pictures medium was at its most restrictive level to date.39 It remains unclear as to whether the genera l public supported the wi despread censorship laws, according to Parker,40 but in the early 1900s, censorshi p gained approval among a variety of middle-class groups,41 including womens groups, religi ous organizations and some professional organizations.42 Attorney and historian Catherine Ross said that adults generally promoted Puritan values and self-denial, at leas t for children, in an effort to preserve their innocence.43 Despite this focus on the mental and emoti onal health and well being of minors, many children were exposed to the harsh realities of contemporary life in the United States until the late 1930s. They attended public hangings as a form of family entertainment,44 witnessed early deaths within their families and communities, and worked long hours on the family farm or in coal mines and factories.45 Industrialization was a strong force in increasing the number of 38 Id. at 1. 39 Id at 2. 40 Id at 3. 41 Historian Stuart Blumin wrote that Am erican society recognized the concept of a middle class in the early 1800s. He described the middle class as a group that experienced work, consumption, residential location, (and) formal and informal voluntary association. STUART BLUMIN, THE EMERGENCE OF THE MIDDLE CLASS: SOCIAL EXPERIENCE IN AMERICAN CITY, 1760-1900, at 312 (1989). 42 See PARKER, supra note 37, at 4. 43 See Sex, Violence, Children and the Media supra note 24, at 341, 350. 44 See Sex, Violence, Children and the Media supra note 24, at 341, 350. 45 See CAROL SALLER, WORKING CHILDREN 8, 11, 16-27 (1998); Sex, Violence, Children and the Media supra note 24, at 349-52; see generally, KENDRICK, supra note 7. 161

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children who worked outside of the family farm.46 Beginning in the mid-1800s, children often worked ten to fourteen hours a day in stuffy, ra t-infested meat packing plants and dark coal mines, sometimes losing hands or arms in machinery.47 By 1900 more than two million U.S. children under the age of 16 worked in fact ories, mines, fields, and in the streets.48 These working children, who often were exhausted, hungry and sometimes ill,49 labored long hours to help support their poor families.50 In the early 1900s, children fr equently would work twelve hours a day, six days a week throughout the year and would earn very little pay for their work.51 While children working in factories and the ga rment industry were kept inside all day long, children who worked the fields spent long, hot da ys in the sun or went barefoot in mud and rain.52 Factory children, however, di d not get outdoor br eaks and therefore were unable to go out for fresh air or play.53 These working children could not at tend school, rarely knew how to read or write and therefore did not de velop the skills to find better j obs later, thus perpetuating the cycle of poverty.54 46 See PARKER, supra note 31, at 54-55. See also Priscilla Ferguson Clement, The City and The Child, 1860-1885, in AMERICAN CHILDHOOD: A RESEARCH GUIDE AND HISTORICAL HANDBOOK (JOSEPH M. HAWES & N. RAY HINER, EDS.) (1985) at 249. 47 GREENLEAF, supra note 15, at 103. 48 See SALLER, supra note 45, at 8, 11, 16-27. See also DANIEL T. RODGERS, THE WORK ETHIC IN INDUSTRIAL AMERICA: 1850-1920, 115 (1978); KATHLEEN THOMPSON & HILARY MAC AUSTIN, AMERICAS CHILDREN 130-52 (2003). 49 See SALLER, supra note 45, at 15. 50 See GREENLEAF, supra note 15, at 103-04; SALLER, supra note 45, at 9. See also DAVID PARKER, STOLEN DREAMS 71. 51 See SALLER, supra note 45, at 8-9. 52 See SALLER, supra note 45, at 25. 53 GREENLEAF, supra note 15, at 103-04. See also STOLEN DREAMS, supra note 50, at 71. 54 See GREENLEAF, supra note 15, at 103-04; SALLER, supra note 45, at 18, 34. For an overview of child labor throughout history and today, see University of Iowa Labor Center, Child Labor Public Education Project, available at http://www.continuetolearn.uiow a.edu/laborctr/child_labor/ 162

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During the first three decades of the 1900s, many people thought hard work was good for children,55 even though, paradoxically, they were sy mpathetic to the plight of working children.56 Congress passed laws in 191657 and 191958 forcing states to end child labor, but United States Supreme Court struck down the laws the ing 59 and held that Congress could not tell the states what to do.60 It wasnt until the 1930s that Ameri cans began to view the economic and social value of children differently.61 In 1938, Congress passed the Fair Labor Standards Act62that prohibited young children from working and prohibited older children from working dur school hours.63 55 See SALLER, supra note 45, at 31. See also GREENLEAF, supra note 15, at 103-04, stating that Americans believed putting children to work in factories was good training for the life of drudgery they would face as adults. See also Clement, supra note 46, at 248, stating that since the Colonists settled in America, most children had worked, and most felt children should work if for no other reason than to prevent delinquency. 56 GREENLEAF, supra note 15, at 103. 57 Fedl Child Labor Law of 1916, Pub. L. No. 249, 39 Stat. 675 (ch. 432) (1916). 58 Child Labor Tax Act, 65 Pub. L. No. 254, 40 Stat. 1057, 1138 (1919), which, as a way to ban the use of child labor, imposed a 10% tax on the profits of all businesses engaged in interstate commerce that employed children. In Bailey v. Drexel Furniture Co., 259 U.S. 20, 43-44 (1922), the Supreme Court struck down the Child Labor Tax Act of 1919, holding that the law was not an allowable federal government excise tax but rather a penalty enacted to coerce state citizens to act in accordance with Congress' vi ews on child labor and therefore was an infringement on state power. 59 See Hammer v. Dagenhart 247 U.S. 251, 271-72 (1918) (striking down the Federal Child Labor Law of 1916, ch. 432, Pub. L. No. 249, 39 Stat. 675, 675-76 ). However, the Supreme Court overruled its Hammer decision in U.S. v. Darby, 312 U.S. 100, 116-17, 125-26 (1941), stating that Congress, under the Commerce Clause, has the power to establish limits on minimum wages and maximum hours. See also Bailey, 259 U.S. at 43-44 (striking down the Child Labor Tax Act of 1919, 65 Pub. L. No. 254, 40 Stat. 1057, 1138 (1919)). 60 See SALLER, supra note 45, at 37. 61 See generally VIVIANA A. ROTMAN ZELIZER, PRICING THE PRICELESS CHILD: THE CHANGING SOCIAL VALUE OF CHILDREN (1985). For a brief overview of the changing view of the child, see ZELIZER, at 5-21. 62 See Fair Labor Standards Act, 29 U.S.C. 212 (1938). 63 For a history of federal child labor laws from 191629 and child labor reform during President Franklin Roosevelt's New Deal administration during the 1930s, see DAVID E. KYVIG, EXPLICIT AND AUTHENTIC ACTS: AMENDING THE U.S. CONSTITUTION 1776-1995, at 255-61, 307-14 (1996). Following the stock market crash of 1929 and the ensuing Depression, Pres. Roosevelt greatly expanded the scope of the federal government by introducing strong government regulation, control, and intervention. Between 1933 and 1939, Pres. Roosevelts administration took action to bring about immediate economic relief and reforms in industry, agriculture, finance, waterpower, 163

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Prior to the early twenti eth century, child protecti on efforts had centered around childrens spirituality and expos ure to printed information on obs cenity, sex and sexually explicit materials. At the turn of the twentieth centur y, American society began looking at children as objects of scientific study, reform and control, according to hi storian Alison Parker.64 In the early 1900s, Americans began to focus on the chil ds physical well being. A few years later, the focus shifted back to sexuality and morals. As the transportation, entertainment and mass m industries expanded during the 1910s and 1920s, moral crusaders contended that each new development would lead to immoral conduct. edia d 65 In urban areas, adults began to worry about the moral impact of automobiles and movie theaters while residents in small towns lamented the fact that young boys were hanging around confectionaries an d train stations.66 The public and special interest groups argued that entertainment mechanisms and the media, including nickelodeons, pin ball machines, silent movies radio and television, were harmful to minors.67 In the 1920s and 1930s, the Womens Christian Temperance Unions (WCTU) organize censorship campaigns against movies, stating they were the greatest factor in the education of youth, but as a negative influence.68 During the same period, the WCTU continued its fight, labor and housing. The New Deal included a package of massive public works projects designed to re-employ Americans and to build a more modern infrastructure. 64 See PARKER, supra note 31, at 10. See also Hamilton Cravens, Child-Saving in the Age of Professionalism, 19151930, in AMERICAN CHILDHOOD: A RESEARCH GUIDE AND HISTORICAL HANDBOOK (JOSEPH M. HAWES & N. RAY HINER, EDS.) 415-68 (1985). 65 See Sex, Violence, Children and the Media supra note 24, at 341, 349. 66 See Sex, Violence, Children and the Media supra note 24, at 341, 351. See also Richard Butsch, A History of Research on Movies, Radio, and Television, 29 J. POPULAR FILM & TELEVISION 112, 112-20 (2001), stating that some adults feared that boys were learning to st eal and girls were learning about sex from movies. 67 See Sex, Violence, Children and the Media supra note 24, at 341, 349. 68 See PARKER, supra note 31, at 135) (citing Alba B. Norton, Motion Pictures, Ohio A.R., 1930, at 127. For a brief history of the WCTU, see generally Alison M. Parker, "Hearts Uplifted and Minds Refreshed": The Woman's Christian Temperance Union and the Production of Pure Culture in the United States, 1880-1930, 11 J. WOMENS HISTORY 135 (1999). 164

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begun in the 1880s, against crime-story papers and immoral literature, magazines, art, advertisements, prizefights, ballet kinetoscopes, plays and gambling.69 The WCTUs stated purpose was to protect innocent children by promoting pure culture and legal censorship.70 The WCTU was not alone in its quest to pr otect childrens morality. In the 1950s, the United States Senate Committee on the Judiciary concluded that th e crime and horror genre of comic books contributed to the rise in juvenile delinquency by o ffering short courses in murder, mayhem, robbery, rape, cannibalism sex, sadism masochism, and virtually every other form of crime.71 During the last half of th e twentieth century, as televi sion, music, video games and computers evolved, the controversies surr ounding their effects on minors continued.72 The Parental Role in Childrearing Despite public and government interest in protecting children from materials deemed harmful, under American law, parentsnot the governmenthave the primary responsibility of raising their children, according to the U.S. Supreme Court.73 Yet the government has to balance 69 See PARKER, supra note 31, at 7, 11-12. 70 Parker, "Hearts Uplifted and Minds Refreshed, supra note 68, at 135-36. In discussing the goals of the Womans Christian Temperance Union, Parker wrote: Moral transformation of youth, activists argued, could only occur through the positive influence of a wholesome culture . A sserting their right to be arbiters of culture themselves, WCTU women insisted upon a tie between art and morals. 71 Catherine J. Ross, Anything Goes: Examining the States Interest in Protecting Children from Controversial Speech, 53 VAND. L. REV. 427, 445 (2000) (citing S. REP. NO. 84-62, at 2, 7 (1955)). 72 Id. 73 See Prince v. Massachusetts 321 U.S. 158, 166 (1944) (holding that while the custody, care and nurture of the child resides first with parents, the state has some author ity over childrens activities. The Court held that the lower court was correct in convicting the parent for violating the state child labor laws by engaging her child in street preaching and selling religious pamphlets); Pierce v. Socy of Sisters, 268 U.S. 510 (1925) (invalidating a law requiring parents to send their children to public schools, holding that such a law unreasonably interfered with parents rights to send their children to private schools); Meyer v. Nebraska, 262 U.S. 390, 399, 403 (1923) (invalidating a state statute prohibiti ng German language instruction in public schools to children who had not passed eighth grade. The Court held that the statute unco nstitutionally interfered with parents right to raise their children without st ate interference). See also Jack Balkin, Comment, Media Filters, the V-Chip, and the Foundations of Broadcast Regulation, 45 DUKE L.J. 1131, 1138-39 (stating that the parent plays the primary role in childrearing in the United States). 165

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two interests that sometimes compete: reinforci ng parental authority in the childrearing process and shielding children from speech that could the government believes could harm them,74 or, more on point for this dissertation, the potenti al tensions between parental values and government values regarding sexuality and minors exposure to sexually explicit materials.75 The Supreme Court has clearly st ated that the physical, psychol ogical and emotional well-being of minors has been viewed as a compelling government interest, rt 76 while a federal appellate cou has held that the government has a compelling gove rnment interest in helping parents supervise their children.77 Congress also has recognized that while parents are primarily responsible for childrearing, parental control or guidance cannot always be provided and societys transcendent interest in protecting the welfare of children just ify reasonable regulation of the sale of material to them.78 Most parents do not want the government d eciding what is best for their children;79 nor do they want to be sanctioned for exposing their children to material the government may think 74 Ross, supra note 71, at 472. 75 See Ashutosh Bhagwat, What If I Want My Kids to Watch Pornography?: Protecting Children from Indecent Speech, 11 WM. & MARY BILL OF RTS. J. 671, 696-701 (2003). Bhagwat, a law professor, discussed other problems with the indecency standard: conflicts that might erupt as parents disagree with the governments value choices, the use of the same indecency standard for both toddlers and teens, the imposition of the views of the local majority over parental views, and the false assumption that all parents within a geographic region share the same government values. Id. at 698-701. 76 See Ginsberg v. New York, 390 U.S. 629, 639, 640 (1968) (upholding a state statute prohibiting the sale of pornographic magazines to minors under the age of seventeen); New York v. Ferber, 458 U.S. 747, 756-57 (1982) (affirming that using children in pornographic films harms their physical and emotional well being and upholding a state law intended to stop the use of children in porn films); Prince v. Massachusetts, 321 U.S. 158, 167 (1944) (upholding appellant's conviction for violating state child labor and compulsory school laws by engaging her child in street preaching and selling religious pamphlets). 77 See Action for Childrens Television v. FCC, 11 F.3d 170, 177 (D.C. Cir. 1993). The court wrote: The government's asserted interest in protecting children also includes its independent interest in protecting the wellbeing of vulnerable youth and in shielding them from physical and psychological abuse. Id. 78 See H.R. REP. NO. 775, 105th Cong. (2d Sess. (199 8), at 12 (citing People v. Kahan, 15 N.Y.2d 311, 312, 206 H.E.2d 333, 334 (1965)). 79 See Balkin, supra note 73, at 1138-39. 166

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is harmful.80 Jack Balkin, a constitutional law professo r at Yale, has argued that different people may have very different vi ews about what is and is not harmful to children.81 For example, some parents may want to shield their children from evolutionary views, discussions of homosexuality and violent depictions of war, whereas others may want to keep their children away from PBS, viewing it as the great Satan of secular humanism.82 The Supreme Court has supported the role of parents when it comes to exposing their children to sexually explicit material. In 1968, in Ginsberg v. New York ,83 the justices, in a 6-3 vote, stated that consti tutional interpretati on has consistently recognized that the parents claim to authority in their own household to direct the rearing of their ch ildren is basic in the structure of our society.84 Although the Court upheld a New York st atute that prohibited store clerks from selling pornography to minors under the age of seventeen, the Court did not preclude parents from sharing the material with their children.85 In a 1978 radio broadcasting case involving the afternoon airing of comedian George Carlins seven dirty words monologue,86 the Court noted that the government has an interest in supporting the role of parents in child rearing.87 80 Sex, Violence, Children and the Media supra note 24, at 354 (comments of Jack Balkin). 81 82 Sex, Violence, Children and the Media supra note 24, at 354 (comments of Jack Balkin). 83and freedom include preparation for obligations the state can neither supply nor hinder." 129-143 and accompanying text. 86likely would not be in the audience. Pacifica, 438 U.S. at 729-31, 751. Sex, Violence, Children and the Media supra note 24, at 354 (comments of Jack Balkin). Ginsberg v. New York 390 U.S. 629 (1968). 84 Id. at 639. As support, the Court cited Prince v. Massachusetts, 321 U.S. 158, 166 (1944), in which it wrote, "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function 85 Ginsberg, 390 U.S. at 639. For further discussion of Ginsberg and the variable obscenity standard, see infra notes The seven words were shit, piss, fuck, cunt, motherfucker, cocksucker and tits. 87 FCC v. Pacifica Found., 438 U.S. 726, 749 (1978). The Court held that the Federal Communications Commission had the authority to regulate the airing of indecent programming in the broadcas t media to times when children most 167

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On the other side of the issue, several legal experts have stated that the Supreme Courts harm-to-minors holdings and rationale raise prob lems. Attorney and historian Catherine Ross has argued that the state itself has an interest in re inforcing family, but that authority flounders in a pluralist society in which families have diverse values88 and adolescents s hould not be treated the same as toddlers.89 Law professor Eugene Volokh wrote that any kind of balancing te including one that attempts to balance prot ecting free speech with shielding children from material deemed harmful, begs the questionhow do we balance these competing interests and which government interest is of greater constitutional gravity? st, 90 In an article on media filters and broadcast regulation, professo r Balkin wrote, [The] control of filters may be one of the most important forms of power over human thought and human expression.91 He stated that if indecency and violence are real ly bad for children and if soci ety believes the protection of children is paramount, then steps should be ta ken to prevent parents from sharing sexually explicit and violent materials with their children.92 He argued that harm from other influences, such as racism, sexism, homophobia and other forms of intolerance, could be equally as harmful to children and questioned why the government has singled out sexual material, violence and bad language as content which needed to be rated. He stated that the government has not prevented parents from sharing sexually explicit or violent material with their children.93 88 Ross, supra note 71, at 473. 89 Ross, supra note 71, at 498. 90 Eugene Volokh, Freedom of Speech, Shielding Children, and Transcending Balance, 1997 SUP. CT. REV. 141, 167-68 (1997). 91 Balkin, supra note 73, at 1132. 92 Balkin, supra note 73, at 1138-39. 93 Balkin, supra note 73, at 1167. 168

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In analyzing the impact of media on audience s, legal scholars Clay Calvert and Robert Richards wrote that fears about the medias effects on behavior are fanciful and unfounded.94 Calvert and Richards state that the magic bulle t or hypodermic needle theorywhich holds that messages directed and fired at the target audien ce would result in an expected responsehas now been discredited.95 Proponents of this theory believed th at messages could deliberately alter or control peoples behavior. The magic bullet theory came about in the first half of the twentieth century during the rise and popular ization of radio and television and Hitlers monopolization of the mass media in Germany during WWII.96 Richards and Calvert, in an article on cyberspace law, stated that people believe that emerging media tend to have powerful effects, often unwarranted, on audiences.97 They also stated that many peopl e today believe the Internet is lawless and immoral.98 94 Clay Calvert & Robert D. Richards, Essay New Millennium, Same Old Speech: Technology Changes, but the First Amendment Issues Dont, 79 B.U.L. REV. 959, 979 (1999). Calvert and Richards did not specify the ages of audience members to which they were referring; however, as minors access th e World Wide Web and go to theaters to watch movies, including R-rated films, it is likely that th e authors were referring to both minors and adults in their essay. 95 Id. See also ARTHUR BERGER, ESSENTIALS OF MASS COMMUNICATION THEORY 174 (1995), stating that the hypodermic needle theory, which Berger reports is generally discredited now, holds that all audience members read the text the same way and get the same things out of it. Berger wrote that hypodermic needle metaphor referred to an assumption that media injected a ll members of the audience with the same message. See also STANLEY BARAN & DENNIS DAVIS, MASS COMMUNICATION THEORY: FOUNDATIONS, FERMENT, AND FUTURE 72-75 (2000), stating that behavioral psychology has never been able to demonstrate that external stimuli, such as a media message, could condition the recipients of the message to behave the way a master propagandist wanted or that the recipients were powerless to consciously resist manipulation. Id. 96 See JULIA T. WOOD, COMMUNICATION MOSAICS: AN INTRODUCTION TO THE FIELD OF COMMUNICATION 303 (2006). In the 1920s, Freudianism and behaviorism were combined to produce a simplistic propaganda theory, according to social science theorists Stanley Baran and Dennis Davis. See BARAN & DAVIS, supra note 95, at 77. 97 Robert D. Richards & Clay Calvert, Essay: The True Threat to Cyberspace: Shredding the First Amendment for Faceless Fears, 7 COMM. LAW CONSPECTUS 291 (1999). 98 Id. at 293. Richards and Calvert conclu de that although society has been both excited and apprehensive about the emergence of new communication technologies, fear alone cannot justify dissolving First Amendment protections. Id. at 295. 169

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When it comes to shielding minors from sexua lly explicit material, the government has balanced the protection of minors against the Firs t Amendment rights of adults to view such materials. As access to information and ne w technologies expands, the government has continued to try to balance th e two compelling and sometimes co mpeting interests of supporting the rights of parents to raise their own children as they see fit and protecting children from material deemed harmful.99 As stated above, parentsnot the governmenthave the primary responsibility of raising th eir children under U.S. law.100 Parental views of childrearing may conflict with the governments view. For example, parents might disagree with the government on the governments value choices, the use of the same indecency standard for toddlers and teens, the imposition of the views of the local majority over parental views, and the false assumption that all parents within a geogra phic region share the same government values, according to one commentator.101 Sexually Explicit Material and the Law Although obscenity and child pornography have no constitutional protection,102 the First Amendment does protect indecent speech.103 Since the 1800s, the United States government has 99 See Ross, supra note 71, at 472. 100 Balkin, supra note 73, at 1138-39. See also Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (holding that while the custody, care and nurture of the child resides firs t with parents, the state has some authority over childrens activities. The U.S. Supreme Court held that the lower cour t was correct in convicting a parent for violating state child labor laws by engaging her child in street preaching and selling religious pamphlets); Pierce v. Socy of Sisters, 268 U.S. 510 (1925) (invalidating a law requiring parents to send their children to public schools, holding that such a law unreasonably interfered with parents rights to send their children to private schools); Meyer v. Nebraska, 262 U.S. 390, 399, 403 (1923) (invalidating a state statute prohibiting German language instruction in public schools to children who had not passed eighth gr ade. The Court held that the statute unconstitutionally interfered with parents rights to raise their children without state interference). 101 Bhagwat, supra note 75, at 696-701. 102 In Roth v. United States, 354 U.S. 476 (1957), the Supreme Court held that obscenity was outside of First Amendment protection. In Miller v. California, 413 U.S. 15 (1973), the Court revised the obscenity test established in Roth and authored a three-part obscenity test that is still in effect today. The Court defined obscenity as works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have se rious literary, artistic, political, or scientific value. Miller, 413 170

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made numerous attempts to prevent the distri bution of either obscene materials or sexually explicit materials. In 1865, Congress expanded the federal obscenity ban to include restrictions on the domestic use of the mails.104 A decade later, Anthony Comstock formed the Society for the Suppression of Vice in New York and pushe d a new obscenity law through Congress in two months105 that led to widespread censorship.106 Meanwhile, federal courts in the United States imported the countrys first obscenity test from Regina v. Hicklin,107 decided in England in 1868. In using the Hicklin test, the courts focused on the eff ect of isolated passages on the most susceptible individuals as a definiti on of and basis for punishing obscenity.108 It wasnt until the last half of the twentie th century that the Supreme Court focused on childrens access to ob scene materials and sexually explic it nonobscene materials. The Court tried to distinguish between content that was obscene for minors and content that was sexually explicit but not obscene for minors. In 1957 in Butler v. Michigan ,109 the Supreme Court directly U.S. at 24. In New York v. Ferber, 458 U.S. 747 (1982), the Supreme Court held that child pornography is not protected by the First Amendment. However, in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Court held that a ban on virtual child pornographythe use of computer-generated images that look like childrenis unconstitutional. 103 See Reno v. ACLU 521 U.S. 844, 874-75 (1997); FCC v. Pacifica Found ., 438 U.S. 726, 732, 745-46 (1978); Sable Commcns of Calif. Inc. v. FCC 492 U.S. 115, 124, 131 (1989). 104 Union soldiers had been receiving salacious literature, and the Postmaster General had been confiscating these packages without statutory authority. See HEINS, supra note 12, at 27. 105 HEINS, supra note 12, at 31. 106 HEINS, supra note 12, at 31. See also Ginsberg v. New York, 390 U.S. 629, 651 (1968) (Douglas, J., dissenting): Comstock, of course, operated on th e theory that every human has an inborn tendency toward wrongdoing which is restrained mainly by fear of the final judgment. In his view any book which tended to remove that fear is a part of the trap which Satan created Hence, Comstock would have condemned a much wider range of literature than the present Court is apparently inclined to do. 107 See Regina v. Hicklin L. R. 3 Q. B. 360 (1868). 108 See Marion D. Hefner, Note, Roast Pigs and Miller-Light: Variable Obscenity in the Nineties, 1996 U. ILL. L. REV. 843, 846 (1996). See also Regina v. Hicklin [1868] L. R. 3 Q. B. 360. 109 Butler v. Michigan 352 U.S. 380 (1957). 171

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confronted the problem of regulat ing obscenity for the first time.110 The Michigan Penal Code made it a misdemeanor to sell or make availa ble to the general reading public any book containing obscene language "tending to the corruption of the morals of youth."111 The defendant sold a police officer a book that the trial judge described as "containing obscene, immoral, lewd, lascivious language, or descrip tions, tending to incite minors to violent or depraved or immoral acts, manifestly tending to the corruption of the morals of youth."112 The Court held that a state court improperly conv icted the defendant of violating a Michigan obscenity law because the law was not reasonably rest ricted to the evil with which it is said to deal. what is fit for children.114 113 The Court reasoned that the result of the legislation was to re duce the adult population of Michigan to reading only In 1957, in Roth v. United States,115 the Supreme Court for the first time held that obscenity was outside the protection of the First Amendment.116 In a 6-3 vote, the Court affirmed the obscenity test that some lower courts already had adopt ed in the 1930s, 1940s and 1950s:117 "whether to the average person, applying cont emporary community standards, the dominant theme of the material taken as a w hole appeals to prurient interest."118 The Supreme Court noted 110 See Hefner, supra note 108, at 847. 111 Butler, 352 U.S. at 381 (citing section 343, Michigan Penal Code). 112 Id. 113 Id. at 383. 114 Id. 115 Roth v. United States 354 U.S. 476 (1957). 116 Id. at 481. 117 Id. at 489. 118 Id. at 488-89. Although the Court included community standards in the definition of obscenity in the Roth case, the concept of community standards seems to have first been articulated by Judge Learned Hand in 1913. See Jacobellis v. Ohio 378 U.S. 184, 192 (1964) (plurality opinion of Brennan, J.) (citing United States v. Kennerley 209 F.119, 121 (S.D.N.Y. 1913)). The Court also acknowledged that the early leading standard of obscenity 172

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that the lower courts that had used the new obscenity standard had rejected the Hicklin standard.119 In Roth the Court replaced the Hicklin test,120 saying it was unconstitutional.121 The Court ruled that obscene speech could be prosecu ted, but sexually explicit speech that fell outside the definition of obscenity had a least some constitutional protection.122 A decade later, the Court affirmed the Roth obscenity test, but questioned whet her the concept of a community standard was a local or national standard,123 an issue the Supreme Court resolved in 1973 in Miller v. California.124 allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin, [1868] L. R. 3 Q. B. 360. The Roth Court wrote, The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be reject ed as unconstitutionally restrictive of the freedoms of speech and press." Roth, 354 U.S. at 488-89. 119 Roth, 354 U.S. at 488-89. 120 See Hefner, supra note 108, at 847. 121 Roth 354 U.S. at 489. The Court said that the Hicklin test was unconstitutionally restrictive of the freedoms of speech and press. Id. 122 Id. at 487-88. 123 Jacobellis v. Ohio 378 U.S. 184, 192-93 (1964) (plurality opinion of Brennan, J.). Justice Brennan wrote: It has been suggested that the contemporary community standards aspect of the Roth test implies a determination of the constitutional question of obscenity in each case by the standards of the particular local community from which the case arises. This is an incorrect reading of Roth The concept of contemporary community standards was first expressed by Judge Learned Hand in United States v. Kennerley, 209 F. 119, 121 (D.C.S.D.N.Y. 1913). In his opinion on community standards and obscenity, as cited by Brennan, Judge Hand wrote If there be no abstract definition, such as I have suggested, should not the word obscene be allowed to indicate the present critical poi nt in the compromise between candor and shame at which the community may have arrived here and now? If letters must, like other kinds of conduct, be subject to the social sens e of what is right, it would seem that a jury should in each case establish the standard much as they do in cases of negligence. To put thought in leash to the average conscience of the time is perhaps tolerable, but to fetter it by the necessities of the lowest and least capable seems a fatal policy. See also FREDERICK SCHAUER, THE LAW OF OBSCENITY 117 (1976) (arguing that although there was no discussion of the definition of community in the Roth decision, one can infer from that d ecision that the justices envisioned a local community because the trial judge in Roth instructed jurors to determine the impact [of the material] upon the average person in the community and to judge the content by presen t-day standards of the community.) 173

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First, however, a plurality of justices in 1966 extended the protection given sexually explicit material. In Memoirs v. Massachusetts,125 the Court expanded the definition of obscenity to include material that was utte rly without redeeming social value.126 A decade later, in Miller v. California ,127 the Court again revised th e definition of obscenity, and authored the three-pa obscenity test, which is still the current precedent. The Miller test defines obscenity as rt 1) whether the average person, applying contemporary community standards, would find the work, ta ken as a whole, appeals to the prurient interest; 2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and 3) whet her the work, taken as a whole, lacks serious literary, artistic, political or scientific value.128 Children, the Variable Obscenity Standard and Indecency The Miller obscenity test was written with adults in mind, but a different standard exists for minors. Legal scholars William Lockhart a nd Robert McClure, who first articulated the concept of and coined the term variable obsce nity in a 1960 seminal law review article, defined the standard as follows: Material may be obscene when directed to one class of persons but not when directed at another.129 They advocated the two-part variable obscenity standard, stating that some material is obscene for adults and minors both, while other material is obscene 124 Miller v. California 413 U.S. 15, 24 (1973). In 1973, the Court established that the community standard was a local standard. Id. See infra notes 127-128 and accompanying text for a summary of the Miller obscenity standard, which is still the controlling precedent. 125 Memoirs v. Massachusetts 383 U.S. 413 (1966). 126 Id. at 418. In Memoirs, the Court noted that in subsequent cases after Roth that it had elaborated on the Roth definition of obscenity, stating that three elements must co alesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient intere st in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value. Id. 127 Miller 413 U.S. at 15. 128 Id. at 24. 129 William Lockhart & Robert McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 MINN. L. REV. 5, 77 (1960). 174

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for minors but not for adults.130 At the same time, the authors st ated that the implementation of a variable obscenity standard might create unmanag eable problems. Lockhart and McClure stated two specific problems with the standard: 1) mate rial labeled adults only would tend to attract minors, and 2) booksellers would not have the necessary background to determine what would be considered obscene as to minors.131 During the 1960s, when the Supreme Court was attempting to define obscenity and trying to balance the constitutional ri ghts of adults with the protectio n of minors, the Court decided a case that focused on the constitutionality of a variable obscenity standard. In a case concerning a Long Island luncheonette owners sale of girlie magazines to a sixteen-yea r-old boy on two separate occasions, the Court held that material that is obscene for minors may not necessarily be obscene for adults.132 In Ginsberg v. New York ,133 the Court held that New Yorks harm to minors statute, which barred the sale of sexually explicit materials to persons under the age of seventeen, was constitutional.134 The New York legislature had define d harmful to minors as the quality of any description or re presentation, in whatever form, of nudity, sexual conduct, sexual ex citement, or sado-masochistic abuse, when it: (i) predominantly appeals to the prurient, shameful or morbid interest of minors, and 130 Id at 77. 131 Id. 132 Ginsberg v. New York 390 U.S. 629, 645-66 (1968). 133 390 U.S. 629 (1968). 134 Id. at 645. Justice William Brennan, who delivered the opin ion of the Court, wrote, The concept of variable obscenity is developed in Lockhart & McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 MINN. L. REV. 5, 85 (1960). Lockhart and McClure stated: Varia ble obscenity furnishes a useful analytical tool for dealing with the problem of denying adolescents ac cess to material aimed at a primary audience of sexually mature adults. For variable obscenity focuses attention upon the make-up of primary and peripheral audiences in varying circumstances, and provides a reasonably sa tisfactory means for delineating the obscene in each circumstance. Id. at 636. 175

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(ii) is patently offensive to prev ailing standards in the adult community as a whole with respect to what is suitable material for minors, and (iii) is utterly without redeeming social importance for minors.135 Justice William Brennan, who delivered the opinion of the Court, wrote that, The concept of variable obscenity is developed in Lo ckhart & McClure, Censorship of Obscenity: The Developing Constitutional Stan dards, 45 Minn. L. Rev. 5, 85 (1960).136 In upholding the variable obscenity standard, the Ginsberg Court based its ruling on its 1944 decision in Prince v. Massachusetts,137 in which it recognized the governmental interest in protecting children. The Ginsberg Court wrote, The State has an interest to protect the welfare of children and to see that they are safeguarded from abuses which might prevent their growth into free and independent well-developed men and citizens.138 The justices stated that the Constitution does not requ ire scientifically certai n criteria of legislation,139 thus leading to their reasoning in upholding New Yorks harmful to minors statute. Under the variable obscenity standard, which remains in effect today, the Ginsberg Court did not prohibit parents from sharing sexually explicit material with their children.140 New Yorks variable obscenity 135 Id. at 646 (App. A). 136 Id. at 636. 137 Prince v. Massachusetts 321 U.S. 158, 167 (1944) (upholding appellant's conviction for violating state child labor and compulsory school laws by engaging her child in street preaching and selling religious pamphlets). 138 Ginsberg, 390 U.S. at 640-41 (citing Prince v. Massachusetts, 321 U.S. 158, 165 (1944)). 139 Id. at 643. The Court cited its 1911 decision in Noble State Bank v. Haskell, 219 U.S. 104, 110, in which the Court said, We do not demand of legislatures s cientifically certain criteria of legislation. Haskell, 219 U.S. at 110. 140 Ginsberg, 390 U.S. at 639. 176

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standard, upheld by the Ginsberg Court in 1968,141 was a modified version of the definition of obscenity the Supreme Court adopted in 1957142 and refined in 1966.143 Legal analyst Marion Hefner said the Ginsberg Court used the rationa l relationship test in upholding the New York statute.144 Courts use the rational basi s test or reasonableness standard to determine whether the regulation is rationally rela ted to any legitimate government interest.145 Legal scholar Kevin Saunders wrote that the variable obscenity standard is, in effect, a national standard,146 unlike the Miller obscenity test, which uses a local standard.147 Under New Yorks obscene-for-minors standard, the se cond prong uses the term adult community, rather than Millers average person standard within a geographic community. In Ginsberg, the obscene-for-minors test ends with the phrase for minors, regardless of locale. Saunders argued that people in all parts of the countryurban an d rural, east and west, north and southare more 141 Id. 142 Id. at 635. 143 Memoirs v. Massachusetts 383 U.S. 413, 481 (1966). The Court expanded the definition of obscenity to include material that was utterly with out redeeming social value. 144 Hefner, supra note 108, at, 857. 145 Junichi P. Semitsu, Note, Burning Cyberbooks in Public Libraries: Internet Filtering Software vs. The First Amendment, 52 STAN. L. REV. 509, 533 (2000). In determining whether to uphold the governments regulation on content, courts choose one of three st andards: strict scrutiny, intermediate scrutiny, or rational basis. The strict scrutiny standard requires that a content-based regulation serv e a compelling state interest and be narrowly drawn to achieve that interest. Perry Educ. Assn v. Perry Local Educators Assn, 460 U.S. 37, 45 (1983) (citing Carey v. Brown, 447 U.S. 455, 461 (1980)); Sable v. FCC 492 U.S. 115, 126 (1989). The intermediate scrutiny standard requires that regulations that incidentally regulate sp eech must serve a significant government interest, be narrowly tailored to achieve that interest, and leav e open ample alternative channels of communication. Perry, 460 U.S. at 45 (citing U.S. Postal Serv. v. Council of Gree nburgh Civic Assns., 453 U.S. 114, 132 (1981); Consol. Edison Co. v. Pub. Serv. Comm'n, 447 U.S. 530, 535-536 (1980); Grayned v. City of Rockford, 408 U.S. 104, 115 (1972); Cantwell v. Connecticut, 310 U.S. 296 (1940); Schneider v. State, 308 U.S. 147 (1939). The rational basis or reasonableness standard requires only that a regulation is rationally related to a legitimate government interest. See Perry at 49. 146 Kevin Saunders, Electronic Indecency: Protecting Children in the Wake of Cable and Internet Cases, 46 DRAKE L. REV. 1, 47 (1997). 147 See supra note 128 and accompanying text for the Miller obscenity standard, established in Miller v. California, 413 U.S. 15, 24 (1973). 177

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likely to agree on what would be considered obscene as to minors than as to what might be considered obscene as to adults.148 In 1989, twenty years after deciding Ginsberg,149 the Supreme Court again addressed the variable obscenity standard in Sable v. FCC.150 The case involved a challenge to a federal statute that banned indecent as well as obscene comm ercial telephone messages and conversations, often referred to as dial-a-porn. The Court he ld that the First Amen dment protects indecent dial-a-porn messages but not obscene ones.151 The Court reaffirmed the governments compelling interest in protecting children from nonobscene material deemed harmful to them,152 while at the same time stating that regulations must be narrowly dr awn so as to not interfere with the First Amendment freedoms of adults.153 The Court wrote, There is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards.154 The Court contrasted the Sable opinion from the Pacifica case it had decided a decade earlier, which involved a New York radio stations broadcast of George Carlins Seven Filthy Words monologue during the afte rnoon when children were likely to be in the audience.155 In 148 Saunders, supra note 146, at 47. 149 Ginsberg v. New York 390 U.S. 629 (1968). 150 Sable Commcns Inc. v. FCC 492 U.S. 115 (1989). 151 Id. at 124, 131. 152 Id. at 126. 153 Id. (citing Schaumburg v. Citizens for Better Env't 444 U.S. 620, 637 (1980) ( Schaumburg cited Hynes v. Mayor of Oradell 425 U.S., 610, 620 (1976) and First Natl Bank of Boston v. Bellotti 435 U.S. 765, 786 (1978)). The Sable Court wrote that, It is not enough to show that th e Governments ends are compelling; the means must be carefully tailored to achieve those ends. Id. at 126. 154 Id. at 126. 155 FCC v. Pacifica Found ., 438 U.S. 726, 729-30 (1978). 178

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Pacifica, the Court held that the Federal Commun ications Commission had the authority to regulate the airing of indecent programming in the broadcast media to times when children most likely would not be in the audience.156 In pointing out the differences between the two cases the Sable Court wrote: Pacifica is readily distinguishable from this case, most obviously because it did not involve a total ban on broadcasting indecent material. The FCC rule was not i ntended to place an absolute prohibition on the broadcast of this type of language, but rather sought to channel it to times of day when children most likely would not be exposed to it.157 The Court also emphasized that, unlike telephone communication, the Pacifica opinion relied on the unique attributes of broadcasting its unique pervasiveness, intrusion into the privacy of the home without prior warning on co ntent, and unique accessibility to children.158 The Sable Court concluded that [T]he private commercial telephone communications at issue are substantially different from the public radio broa dcast at issue in Pacifica.159 After the Supreme Court decided the Pacifica and Sable cases, the U.S. Court of Appeals for the D.C. Circuit heard a case challenging a statute (and the related FCC regulations) that required radio and television broadcasters to channel indecent program ming between midnight and 6 a.m. In 1995, in Action for Childrens Television v. FCC,160 the court, sitting en banc, voted 7-4 to uphold the FCC's daytime ban on in decent material, stating the content-based 156 Id. at 729-31, 751. 157 Sable Commcns, Inc. v. FCC 492 U.S. at 127 (1989). 158 Id. at 127 (citing FCC v. Pacifica Found ., 438 U.S. at 748-49 (1978)). In Red Lion Broadcasting v. FCC, 395 U.S. 367, 388-89 (1969), the Supreme Court had earlier esta blished that the physical scarcity of the electromagnetic spectrum in broadcasting justified lesser First Amendment protections. Red Lion, 395 U.S. at 388-89. 159 Sable, 492 U.S. at 127. 160 Action for Childrens Television v. FCC 58 F.3d 654 (D.C. Cir. 1995). 179

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regulations of speech met the strict scrutiny test161 because the regulations were narrowly tailored to serve the government interest of facilitating parental s upervision and protecting children.162 However, the court held that the midnight to 6 a.m. time slot was not narrowly tailored because the statute allowed exceptions for some public stations to broadcast indecent programming after 10 p.m. and Congress had failed to explain any relationship between the compelling government interest and the disparat e treatment of public and non-public stations.163 In 1996, the Supreme Court decided its firs t indecency case pert aining to the Cable Television Consumer and Competition Act of 1992.164 The Court examined the constitutionality of three provisions of the Cable Act of 1992165 that were designed to protect children from exposure to indecent materials on cable.166 In the 1996 plurality opinion in Denver Area 161 To pass the strict scrutiny test, the Supreme Court has stated that a regulation must promote a compelling government interest and be the least restrictiv e means to further that articulated interest. Sable, 492 U.S. at 126. 162 Act ion for Childrens Television 58 F.3d at 660-61. In the courts Reconsideration Order in Action for Childrens Television v. FCC, 852 F. 2d 1332 (D.C. Cir. 1988), the court rejected broadcasters arguments that the Federal Communications Commissions definition of indecency was unconstitutionally vague and overbroad. However, the court vacated the imposition of new safe harb or hours of midnight to 6 a.m. and remanded the case for further consideration. 852 F. 2d at 1338-44. In Action for Childrens Television v. FCC, 932 F. 2d 1504 (D.C. Cir. 1991), the court again rejected the va gueness and overbreadth arguments of broadcasters, industry associations and public interest groups. However, the court struck dow n the FCCs twenty-f our hour ban on indecent broadcasts, stating, "Our holding in ACT I that the Commission must identify some reasonable period of time during which indecent material may be broadcast necessarily means that the Commission may not ban such broadcasts entirely." 932 F. 2d at 1509. The Supreme Court denied certiorari in ACT II, 503 U.S. 913 (1992), after which Congress passed the Public Telecommunications Act of 1992, Pub. L. No. 102-356, 106 Stat. 949 (1992). Section 16(a) of the Act required the FCC to prohibit public radio and television stations from broadcasting indecent programming between 6 a.m. and 10 p.m. for stations that sign off the air at or before 12 midnight. Section 16(a) also required the FCC to prohibit commercial broadcast radio and television stations from transmitting indecent programming between 6 a.m. and 12 midnight. 58 F. 3d 658-59. 163 The exemption applied to public stations that signed off the air at midnight. Action for Childrens Television v. FCC, 58 F.3d 654, 668-69 (D.C. Cir. 1995). 164 Denver Area Educ. Telecomm. Consortium, Inc. v. FCC 518 U.S. 727 (1996). 165 Cable Television Consumer Protection & Competition Act of 1992, Pub. L. No. 102-385 9, 10(a), (b), 106 Stat. 1484, 1486, 10(a), 10(b), and 10(c) (1992) (codified at 47 U.S.C. 532(h), 532(j)). 166 Denver Area Educ. Telecomm. Consortium, 518 U.S. at 734, 753. 180

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Educational Telecommunications Consortium v. FCC,167 the Court held that the acts grant of authority to leased chan nel cable operators under 10(a) allowi ng cable operators to restrict the transmission of patently offensive or indece nt programmingis consis tent with the First Amendment.168 The Court held the other two sections being challenged(b) and 10(c)to be unconstitutional.169 The Court found Section 10 (b) that required cable ope rators to segregate and block patently offensive sexrelated material on a single channel, and that required cable operators to obtain a written requ est from a subscriber before u nblocking that channel, to be overly restrictive to adult viewers, ca ble system operators and programmers.170 Finally, the Court found Section 10(c)the blocking of offensiv e or indecent programming on public access channelsto be unconstitutional. The government had failed to show that the segregating and blocking provisions of the Cable Act were the least restrictive me ans to further its interest of protecting children from sexually explicit programming. The Court said that a lockbox, which 167 Id. 168 Id. at 733. 169 Id. 170 Id. at 752-54. The Court plurality also stated that the Cabl e Act of 1992 allowed cable companies up to 30 days to respond to a consumers request to unlock a restricted channel, which the plurality said was too restrictive. According to the plurality opinion, The delays, along with single channel segregation, mean that a subscriber cannot decide to watch a single program without considerable advance planning and without letting the patently offensive channel in its entirety invade his household for days, perhaps weeks, at a time. These restrictions will prevent programmers from broadcasting to viewers who select programs day by day (or, through surfing, minute by minute) and to viewers who would like occasionally to watch a few, but not ma ny, of the programs on the patently offensive channel. Moreover, the w ritten notice requirement will further restrict viewing by subscribers who fe ar for their reputations should the operator, advertently or inadvertently, disclose the list of those who wish to watch the patently offensive channel. Id. at 754. 181

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would allow parents to block programming they did not want their children to see, was a less restrictive alternative.171 In 2000, the Supreme Court again dealt with the cable industry a nd the telecasting of sexually explicit material. In United States v. Playboy,172 the Court held as unconstitutional a statute173 that required that cable opera tors to either scramble or block channels primarily dedicated to sexually-oriented programming or to broadcast t hose channels during the safeharbor hours of 10 p.m. to 6 a.m. when young children were not likely to be watching.174 The purpose of the statute was to protect non-subscr ibers and their children from signal bleed, which occurs when portions of the scrambled pr ograms might be heard or seen. The Court held that the statute violated the First Amendment because the law was a content-based restriction, and the government failed to show that the statut e was the least restrictiv e means of serving the governments compelling interest.175 The Court said a less restrictiv e alternative existed: Cable operators could notify subscrib ers that the companies woul d block indecent programming on individual channels that the subs criber requested to have blocked.176 As Congress and the Supreme Court tried to tackle the problem of protecting children from material deemed harmful, several commentato rs stated that problems in defining children and harm would be inherent in any proposed law. Several commentators have argued that applying laws to all age groups can be problematic. For example, Pr ofessor Lili Levi said it is 171 Id. at 758. 172 United States v. Playboy Entm't Group, Inc ., 529 U.S. 803 (2000). 173 Telecommunications Act of 1996, Pub. L. 104-104, Title V, Subtitle A, 505(b), 110 Stat. 136 (1996) (codified as 47 U.S.C. 561). 174 Playboy, 529 U.S. at 806, 826-27. 175 Id. at 813, 826-27. 176 Id. at 823-24. 182

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difficult to treat young children and teenagers the same, while Prof essor Dale Kunkel pointed out that educators would not use the same book to teach all age groups because children have different capabilities and different needs.177 Similarly, commentator Ma rion Hefner wrote that the variable obscenity standard w ould be difficult to apply beca use the determination of what would be patently offensive woul d differ depending on a minors age.178 Moreover, Hefner stated that the prurient interest of a child has not been defined. Babies and young children have no adult-like interest in sex, shameful or otherwise, he argued.179 Attorney and historian Catherine Ross stated that the governments use of the variable obscenity standard does not answer the key questi on of whether the state is entitled to make value judgments about speech on behalf of minors or whether parents should be making such decisions.180 She noted that the variable obscenity standa rd, in the case of ch ildren, raises all of the issues of subjectivity that trouble the efforts to define inde cent speech directed at adults.181 Several scholars have written that children are used as a focus when legislators and the courts want to restrict sexually explicit and violent speech.182 For instance, professor Jack Balkin wrote that children are problematizedthat is, as with other issues over time, children have become a recurrent object for analysis, discussion, worry, and concern.183 He said that adults focus on children, sometimes obsessively and sometimes in an effort to solve societal ills.184 177 Sex, Violence, Children and the Media, supra note 24, at 346. 178 Hefner, supra note 108, at, 870. 179 Hefner, supra note 108, at, 871. 180 Ross, supra note 71, at 521. 181 Ross, supra note 71, at 521. 182 See generally Sex, Violen ce, Children and the Media, supra note 24, at 349. 183 Balkin, supra note 73, at 1138-39. 184 Sex, Violence, Children and the Media, supra note 24, at 352 (comments of Jack Balkin). 183

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Ross has said that the government has used children as a shield from the First Amendment.185 She wrote, The contemporary anxiety about the nexus between child development and popular culture, wh ether its rock lyrics, TV or the Internet, is sometimes couche d in the secular language of the social sciences and sometimes in overt religious concern about morality. But in each instance, the underlying concern invests a great deal in an image of chil dhood that does not always conform to social realities.186 Thus far, federal legislation aimed at prot ecting minors from sexua lly explicit material does not differentiate among age groups. Moreover, social scientists disagree on whether a link exists between minors exposure to sexually explic it material and their attitudes and behavior. Social Science Research on the Effects of Pornography Beginning in the 1960s, social scientists bega n studying the effects of sexually explicit material, or pornography, on young adults and mature adults.187 Many of the seminal social science studies on the effects of exposure to pornography were conducted prior to the advent of the Internet. Research into the content, use and effects of onl ine pornography is in its infancy, and therefore not much is known about the be haviors and attitudes of people who access pornography online.188 What is known, however, is the num ber of online pornography sites 185 Sex, Violence, Children and the Media, supra note 24, at 351 (comments of Catherine Ross). 186 Sex, Violence, Children and the Media, supra note 24, at 351 (comments of Catherine Ross). 187 Because of ethical constraints, researchers cannot condu ct experiments in which they expose minors to sexually explicit material. However, researchers can survey minor s on their access to sexually explicit material and then attempt to measure differences in attitudes between groups exposed to sexually explicit material and groups not exposed to such content. See infra notes 194-198 and 267-273 accompanying text. 188 See Patricia Goodson, Deborah McCormick & Alexandra Evans, Searching for Sexually Explicit Materials on the Internet: An Exploratory Study of College Students Behaviors and Attitudes, 30 ARCHIVES OF SEXUAL BEHAVIOR 101, 103, 115 (2001); see also Azy Barak & William A. Fisher, Effects of Interactive Computer Erotica on Mens Attitudes and Behavior Toward Women: An Experimental Study 13 COMPUTERS IN HUMAN BEHAVIOR 353 (1997). 184

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continues to grow.189 Thus far, studies measuring the effect s of exposure to pornography on adults and childrens attitudes and behavior have been contradictory and inconclusive.190 One study, conducted in the mid-1980s, suggested that sexua lly explicit films only had undesirable effects on actions when violence was included.191 At least five studies, conducted in the 1980s, indicated that men developed negative attitude s toward women and engaged in aggressive behavior toward them after being exposed to sexu ally explicit material that portrays wom receptive, nondiscriminating and available sexual objects. en as x erials.193 192 On the other hand, another si studies, conducted in the 1980s a nd 1990s, indicated that men were not easily influenced or affected by such sexually explicit materials and therefore did not develop negative attitudes and behaviors toward women as a result of exposure to explicit mat 189 See Chapter 3 for a discussion of the increase in the number of online pornographic sites and filtering technology. 190 See Barak & Fisher, supra note 188, at 354. See also Aletha C. Huston, Ellen Wartella & Edward Donnerstein, Measuring the Effects of Sexual Content in the Me dia: A Report to the Kaiser Family Foundation at 4 (May 2003), http://www.kff.org/entmedia/1389-content.cfm ; John S. Lyons, Rachel L. Anderson & David B. Larson, A Systematic Review of the Effects of Aggressive and Nonaggressive Pornography, in MEDIA, CHILDREN, AND THE FAMILY: SOCIAL, SCIENTIFIC, PSYCHODYNAMIC, & CLINICAL PERSPECTIVES 301 (Dolf Zillmann & Aletha C. Huston, eds., 1994); Azy Barak, William A. Fi sher, Sandra Belfry & Darryl R. Lashambe, Sex, Guys & Cyberspace: Effects of Internet Pornography and Individual Differences on Mens Attitudes Toward Women, 11 J. PSYCHOLOGY & HUMAN SEXUALITY 63, 65 (1999). 191 EDWARD DONNERSTEIN, DANIEL LINZ & STEVEN PENROD, THE QUESTION OF PORNOGRAPHY: RESEARCH FINDINGS AND POLICY IMPLICATIONS 176 (1987). See also Edward Donnerstein & Leonard Berkowitz, Victim Reactions in Aggressive Erotic Films as a Factor in Violence Against Women, 41 J. PERSONALITY & SOCIAL PSYCH. 710 (1981); Margaret E. Thompson, Steven H. Chaffee & Hayg H. Oshagan, Regulating Pornography: A Public Dilemma, 40 J. COMM. 73, 74 (1990). 192 J.V.P. Check & T.H. Guloien, Reported Proclivity for Coercive Sex Foll owing Repeated Exposure to Sexually Violent Pornography, Nonviolent Dehumanizing Pornography, and Erotica, in PORNOGRAPHY: RESEARCH ADVANCES AND POLICY CONSIDERATIONS 159-84 (Dolf Zillman & Jennings Bryant, eds., 1989); E. Donnerstein, Pornography: Its Effect on Violence Against Women, in PORNOGRAPHY AND SEXUAL AGGRESSION 53-81 (N.M. Malamuth & E. Donnerstein, eds., 1984); N.M. Malamuth & J.V.P. Check, The Effects of Mass Media Exposure On Acceptance of Violence Against Women, 15 J. RESEARCH IN PERSONALITY 436-46 (1981); R.S. Wyer, G.V. Bodenhausen & T.F. Gorman, Cognitive Mediators of Reactions to Rape, 48 J. PERSONALITY & SOC. PSYCHOLOGY 324-38 (1984); and D. Zillmann, Effects of Prolonged Consumption of Pornography, in PORNOGRAPHY: RESEARCH ADVANCES AND POLICY CONSIDERATIONS 127-57 (Dolf Zillman & Jennings Bryant, eds., 1989). 193 Barak & Fisher, supra note 188, at 353-69; J. Becker & R.M. Stein, Is Sexual Erotica Associated With Sexual Deviance in Adolescent Males? 14 INTL J. L. & POLY 85-95 (1991); W.A. Fisher & G. Grenier, Violent 185

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Because it would be unethical for research ers to intentionally expose children to pornography, social scientists have not used minors in experiments. Moreover, virtually no empirical studies have been done on the presumed psychological, moral or developmental harm to minors that would result from their exposure to sexually explicit materials.194 However, a 2002 survey195 found that 25% of minors inadvertently or unintentionally were exposed to sexually explicit pictur es on the Internet.196 While the majority did not reactive negatively to the exposure, one quarter reported that they were either ex tremely upset or very upset.197 One limitation of the study, as pointed out by the researcher s, is that they did not measure the level of upset and therefore were not able to determine if those levels were comparable to a major upset, such as being assaulted or involved in an acci dent, or a minor upset, such as getting a bad grade.198 Pornography, Antiwoman Thoughts, and Anti Woman Acts: In Search of Reliable Effects, 31 J. SEX RESEARCH 2338 (1994); R. Langevin, et. al, Pornography and Sexual Offenses, 1 ANNALS OF SEX RESEARCH 335-62 (1988); N.M. Malamuth & J. Ceniti, Repeated Exposure to Violent and Nonviolent Pornography: Likelihood of Raping Ratings and Laboratory Aggression Against Women, 12 AGGRESSIVE BEHAVIOR 129-37 (1986); V.R. Padgett, J.A. Brislin-Slutz & J.A. Neal, Pornography, Erotica, and Attitudes Toward Women: The Effects of Repeated Exposure 26 J. SEX RESEARCH 479-91 (1989). See generally I.L. REISS, JOURNEY INTO SEXUALITY: AN EXPLORATORY VOYAGE (1986). 194 See Kimberly J. Mitchell, David Finkelhor & Janis Wolak, The Exposure of Youth to Unwanted Sexual Material on the Internet: A National Survey of Risk, Impact, and Prevention, 34 YOUTH & SOCY 330, 334 (2003). See also Huston, Wartella & Donnerstein, supra note 190. 195 Mitchell, Finkelhor & Wolak, supra note 194, at 336. The national sample contained 1,501 Internet-using youth, ages 10-17, with 796 boys and 705 girls in the study. The mean age for youth was 14.14 years, with a standard deviation of 1.96. Twenty percent of youths lived in single-parent households, and 46% lived in households with an income of more than $50,000. Although the sample was representative of Internet-using youth, the authors pointed out that it is not representative of all youth in the United States because Internet use is not evenly distributed among the population. Mitchell, Finkelhor & Wolak, supra note 194, at 336. 196 Mitchell, Finkelhor & Wolak, supra note 194, at 330. The terms inadvertently and unintentional mean that minors accidentally came across sexually explicit onlin e photographs while lookin g for nonsexual material. Mitchell, Finkelhor & Wolak, supra note 194, at 337. 197 Mitchell, Finkelhor & Wolak, supra note 194, at 330. 198 Mitchell, Finkelhor & Wolak, supra note 194, at 350. 186

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During the 1960s and the 1980s, the United St ates government commissioned two studies on pornography that reached different conclusions. In 1967, Congress established an advisory commission to study ways to deal effectively with obscenity and pornography trafficking and to conduct a thorough study of the causal rela tionship of such materials [obscenity and pornography] to antisocial behavior.199 President Lyndon Johnson appoi nted nineteen members to the Presidential Commission on Obscenity and Pornography in 1968.200 The commission examined national surveys measuring the opinions of the public and professional workers,201 experimental and quasi-experime ntal studies on the effects of pornography, and data on the national rates of sex offenses and illegitimacy.202 In its 1970 report, the Commi ssion wrote that it did not find sufficient evidence that exposure to pornography caused either juve niles or adults to commit sex crimes203 or to engage in delinquent or criminal behavior.204 The Commission stated that most subjects reported no change in sexual behavior afte r being exposed to pornography.205 According to th e report, some people engaged in increased masturbation or sexua l intercourse, but those behaviors generally disappeared within forty-eight hours.206 The Commission wrote, In ge neral, established patterns 199 Commission on Obscenity and Pornography, REPORT OF THE COMMISSION ON OBSCENITY & PORNOGRAPHY 1 (1970). 200 Id. The Commission was comprised mostly of college professo rs, but also included were attorneys, ministers and a medical doctor. Id. at 634-39. 201 Professional workers included psychiatrists, psychologists, sex educators, and counselors. Id. at 160-63. 202 Id. at 23. 203 Id. at 242. The authors also noted that similar analyses in Denmark indicated that as the availability of erotica increased in that country, th e number of sex times decreased. Id. 204 Id. at 27. 205 Id. at 25. 206 Id. 187

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of sexual behavior were found to be very stab le and not altered substantially by exposure to erotica.207 In 1985, Attorney General Edwin Meese, who served under President Ronald Reagan, established a Commission on Por nography. The commissions objectiv es were to determine the nature, extent, and impact on society of pornogr aphy and to recommend effective ways to contain the spread of pornography, cons istent with constitutional guarantees.208 Meese appointed twelve memb ers to the commission,209 which examined social science studies on the effects of pornography and government report s on organized crime and the pornography industry.210 The commission also heard testimony from th irty witnesses who sa id that they had been harmed by pornography.211 The Meese Commission disagreed with the findings of the 1970 Commission on Obscenity and Pornography. The Meese Commission was not persuaded by arguments by the 1970 Commission that pornography di d not cause harm. Many of the arguments made against regulation rest on claims of harmlessness that, as we have expl ained are simply erroneous, according to the Meese report.212 The Meese Commission stated that pornography had become more readily available213 and more graphic.214 Although the Meese Commission 207 Id. 208 Attorney Generals Commission on Pornography, Fi nal Report of the Attorney Generals Commission on Pornography as reprinted in FINAL REPORT OF THE ATTORNEY GENERALS COMMISSION ON PORNOGRAPHY li (Nashville: Rutledge Hill Press, 1986). Some deletions, mostly inconsequential, were made in publishing the Report, according to the publisher. 209 The Meese Commission was comprised of three college professors, three attorneys, one judge, one medical doctor, one journalist, one minister, one child abus e council president, and one city council member. Id. at 477-82. 210 Id. at 246-302. 211 Id. at 197. 212 Id. at 50. 213 Id. at 24; see also Lyons, Anderson & Larson, supra note 190. 188

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acknowledged the problem of multiple causation, with most actions and consequences caused by several factors,215 it recommended stronger enforcement of obscenity regulations and the enactment of new and more restrictive measures.216 During the 1980s, social science experime nts on the effects of pornography led to contradictory conclusions. In a 1982 study, Dolf Zillmann and Jennings Bryant reported that exposure to nonviolent pornographic films cau sed sexual callousness toward women and trivialization of rape.217 Five years later, in 1987, Edward D onnerstein and Daniel Linz reached a different conclusion, stating that sexually explicit films only had undesirable effects on actions when violence was included.218 In a 1987 study, Jennings Bryant and Steven Rockwell examined the impact of sexually explicit, though not pornographi c, television shows on young teen agers. The researchers found that 13and 14-year-old boys and girls who were exposed to several hours of sexually-oriented prime-time television vignettes vi ewed sexual indiscretions as less bad than their peers.219 The researchers found that teenagers who were from homes in which families communicated openly 214 FINAL REPORT OF THE ATTORNEY GENERALS COMMISSION ON PORNOGRAPHY, supra note 208, at 38-41. See also Lyons, Anderson & Larson, supra note 190. 215 FINAL REPORT OF THE ATTORNEY GENERALS COMMISSION ON PORNOGRAPHY, supra note 208, at 34. 216 Id. at 49-65. See also SUSAN M. EASTON, THE PROBLEM OF PORNOGRAPHY 12 (1994). 217 Dolf Zillmann & Jennings Bryant, Pornography, Sexual Callousness, and the Trivialization of Rape, 32 J. COMM. 10, 10-18 (1982). 218 DONNERSTEIN, LINZ & PENROD, supra note 191, at 176; Donnerstein & Berkowitz, supra note 191, at 710; See also Thompson, Chaffee & Oshagan, supra note 191, at 73, 74. 219 Jennings Bryant & Steven Rockwell, Effects of Massive Exposure to Sexually Oriented Prime-Time Television Programming on Adolescents Moral Judgment, in MEDIA, CHILDREN, AND THE FAMILY: SOCIAL SCIENTIFIC, PSYCHODYNAMIC, & CLINICAL PERSPECTIVES 187-88 (Dolf Zillmann & Aletha C. Huston, eds. 1994). The researchers used the phrase less bad in reporting their fi ndings, but they did not define the term in their article. The experiment used a 3 x 2 factorial design, and the subjects were asked to rate programs on spurious items designed to mask the real purpose of the study. The show episodes, aired from 1984-87, included Dynasty, Hotel, Dallas, Falcon Crest, Knots Landing and E merald Point. The adolescent s viewed vignettes dealing with sexual relations between married partners, sexual re lations among unmarried partners, and nonsexual relations between adults. 189

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were not greatly affected by exposure to fift een hours of television programming showing an alternate value culture, which they defined as sexual relations between unmarried adults.220 The study concluded that young teenagers moral j udgment can be altered after they have been heavily exposed to prime-time television show s featuring sexual intimacy between unmarried persons. However, the researchers noted that seve ral individual and family factors can mitigate, if not eliminate, any unwanted shifts in values.221 In a study released in 1988, Do lf Zillmann and Jennings Bryant reported that repeated and prolonged exposure to nonviolent pornograp hy can alter perceptions of sexuality and relationships.222 For example, the authors reported that the adult research subjects who were shown pornography viewed sexual promiscuity and nonexclusive sexual relationships as more prevalent and more acceptable to others.223 They concluded that those who consume pornography regularly could, for better or worse, be less likely to want a monogamous marriage and to have children.224 They also found that exposure to non-violent pornography changed an individuals percepti on of rape victims,225 but later studies have not replicated these findings.226 In a different study released in 1988, other researchers repeated earlier experiments on the effects of nonviolent pornogra phy, including the study conducte d by Zillman and Bryant in 220 Id. at 190-91. In this 3 x 2 x 2 factorial design, programming included sexual relations between unmarried adults, nonsexual relations between adults, and no exposure to television. 221 The researchers listed one mitigating factor in their study: open family communications. Id at 191-94. 222 See Dolf Zillmann & Jennings Bryant, Effects of Prolonged Consumption of Pornography on Family Values, 9 J. FAMILY ISSUES 518 (1988). The authors did not report the dates that they conducted their research. 223 Id. at 541. 224 Id. 225 Id. at 520. 226 Daniel G. Linz, Edward Donnerstein & Steven Penrod, Effects of Long-Term Exposure to Violent and Sexually Degrading Depictions of Women, 55 J. PERSONALITY & SOC. PSYCHOLOGY 758, 760, 766 (1988). 190

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1982, and reached different conclusions. The 1988 study failed to support the premise that longterm exposure to degrading images of women in sexually explicit films would affect subsequent beliefs and attitudes about women.227 In none of these studies do we find antisocial effects for exposure to pornographic material that is no t overtly violent, th e researchers wrote.228 In a 1995 meta-analysis,229 which focused on adults in la boratory settings, researchers found that some connection probably exists between exposure to violent and nonviolent pornography and subsequent behavioral aggression.230 However, they acknowledged three major problems with their meta-analysis study. First, the researchers were una ble to generate enough data. Second, the use of data, which came from an experimental design, raises questions about 227 Id. at 765-67. In the study by Linz, Donnerstein and Penrod, researchers divided subjects into three groups, each watching a different full feature film. The first group watched films that were overtly violent (often referred to as slasher films, with violent scenes often juxtaposed to mi ldly erotic scenes). The second group watched films that were not overly violent but sexually explicit (typically containing depictions of heterosexual intercourse, lesbian activity, fellatio, and cunnilingus, but usually without rape or other forms of sexual violence). The third group watched films that were not sexually explicit, but (which) nearly always portray women as sexual objects (often characterized by the inordinate amount of time major characternearly always teenagersspend pursuing, talking about, or engaging in sex.). Id at 759-60. Linz, Donnerstein and Penrod did not find that long-term exposure to degrading images of women in nonviolent, sexually explicit full-length films affected the subjects subsequent beliefs and attitudes about women. In contrast, Zillmanns study relied only on excerpts from an X-rated film rather than on the full film. Donnerstein, Linz and Penrod repeated Zillmann and Bryants experiments, conducted in 1982 and 1984, on the effects of nonviolent pornography. Donnerstein, Linz and Penrod also repeated their own experiment, conducted in 1984, on the effects of nonviolent pornography. However, the researchers were unable to replicate the findings of those studies. See also Daniel Linz & Edward Donnerstein, The Methods and Merits of Pornography Research, 38 J. COMM. 180, 180-82 (1988). 228 Linz & Donnerstein, supra note 227, at 180, 180-82. 229 A meta-analysis is a quantitative statistical analysis of several separate but similar experiments or studies in order to test the pooled data for statistical significance. A me ta-analysis also can be defined as a set of statistical procedures designed to accumulate experimental and correl ational results across independent studies that address a related set of research questions. See GLENN G. SPARKS, MEDIA EFFECTS RESEARCH 173 (2002) and GERALD STONE, MICHAEL SINGLETARY, & VIRGINIA P. RICHMOND, CLARIFYING COMMUNICATION THEORIES 263 (1999). 230 See Mike Allen, Dave DAlessio & Keri Brezgel, A Meta-Analysis Summarizing the Effects of Pornography II: Aggression After Exposure, 22 HUMAN COMMCN RESEARCH 258, 274 (1995). 191

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the generalizability231 of the data. Third, the aggression took place in the context of an artificial setting rather than a real world setting.232 In 1999, a group of researchers published the fi ndings of two independent studies on the effects of online pornography.233 The researchers, who used male undergraduate students in their samples, were unable to document negative e ffects of online pornography on mens attitudes toward women.234 However, the researchers did find a relationship between preexisting individual differences and attitudes toward women, suggesting the possibility that hypermasculine235 men already may have misogynist attitudes.236 While both studies were externally and internally valid,237 two limitations were evident: the small sample size (twentyfour and thirty-four subjects, respectively) and the samples consisting only of undergraduate university males as opposed to other males in di fferent age groups and outside of a university setting.238 231 Generalizablity refers to external va liditywhether the results of the study can be generalized to the population as a whole, to other situations and to other time periods. See ROGER WIMMER & JOSEPH DOMINICK, MASS MEDIA RESEARCH 23. 232 Allen, Alessio & Brezgel, supra note 230, at 275. 233 Azy Barak et. al, Sex, Guys & Cyberspace: Effects of Internet Pornography and Individual Differences on Mens Attitudes Toward Women, 11 J. PSYCHOLOGY & HUMAN SEXUALITY 63, 84-86 (1999). 234 Id. 235 The researchers did not define the term hypermasculine. 236 See Barak et al., supra note 233, at 84-86. 237 Validity is an important component of scientific resear ch. Internal validity refers to the ability of a study to measure what it is intended to measur e, e.g. the extent to which the change in the dependent variable was actually due to the independent variable. External validity refers to the extent that the relationship observed between the independent and dependent variables during the experimente.g. the resultsis generalizable to the real world. See Wimmer & Dominick, supra note 231, at 29-34. 238 The authors acknowledged age and type limitations but did not discuss the small sample sizes. See Barak et al., supra note 233, at 86. 192

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In an article released in 2000, a team of researchers who conducted a meta-analysis reported that exposure to pornogr aphy produces a variety of s ubstantial negative outcomes.239 The researchers stated that themes of aggression, gratification and objecti fication may reinforce and/or justify similar attit udes and behaviours [sic] in everyday human-life contacts.240 The team noted, though, that the relationship be tween the consumption of pornography and subsequent behavior does not exist in a vac uum. The researchers wrote, While likely not a solitary influence, it appears that exposure to pornography is one important factor which contributes directly to the de velopment of sexually dysfunctiona l attitudes and behaviours. [sic]241 With the advent and expansion of the In ternet, researchers ha ve questioned whether Internet pornography can be con ceptualized as traditional po rnography viewed through a new medium242 or if online pornography is quite diffe rent than that found in other media.243 For instance, some researchers view Internet pornography as unique from other media because of the interactivity. Users participat e in an active and interactive environment involving animated 239 Elizabeth Oddone-Paolucci, Mark Genuis & Claudio Violato, A Meta-Analysis of the Published Research on the Effects of Pornography, in THE CHANGING FAMILY AND CHILD DEVELOPMENT 52 (Claudio Violato, Elizabeth Oddone-Paolucci & Mark Genuis, eds., 2000). The research ers analyzed forty-six stud ies published from 1962 to 1995, most of which were conducted in the United States. A total of 12,323 individuals participated in the studies. 240 Id. 241 Id. 242 See Michael D. Mehta & D. Plaza, Content Analysis of Pornographic Images Available on the Internet, 13 THE INFO. SOCY 153, 154, 161 (1997). 243 See Chad Mahood, Sriram Kalyan araman & S. Shyam Sundar, The Effects of Erotica and Dehumanizing Pornography in an Online Interactive Environment, paper presented at 83rd annual convention of the Association for Education in Journalism and Mass Communication, Phoenix, Ariz. (Aug. 2000); S. S. Sundar, Technological Issues in Internet Pornography, paper presented at annual convention of the Association for Education in Journalism and Mass Communication, New Orleans, La. (Aug. 1999). 193

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images, sequences and games.244 Users also can produce th eir own online pornography.245 Finally, users have privacy (in contrast to vi siting adult bookstores), the ability to download select images (rather than having to buy a whole magazine or video), eas y and discrete storage on their own computers, and ever-expa nding access to pornographic Web sites.246 Even with the interactive environment of computer pornography Azy Barak and William Fisher reported that males use of computer pornography did not a ffect their attitudes and behavior toward women.247 Chad Mahood, Sriram Kalyanaraman and Shyam Sundar argued that further research needs to be conducted to study whether intera ctive pornography has a more negative impact on consumers than non-interactive pornogra phy or even non-interactive obscenity.248 Despite numerous studies on the effects of pornography consumption on users, a group of researchers has said that a key question rema ins: Under what conditions does behavior 244 Ven-hwei Lo & Ran Wei, Third-Person Effect, Gender, and Pornography on the Internet, 46 J. BROAD. & ELEC. MEDIA 13, 13-14 (2002). 245 Id. 246 Marty Rimm, Marketing Pornography on the Information Superhighway, 83 GEORGETOWN L.J. 1849, 1852 (1995). 247 Barak & Fisher, supra note 188, at 357-66. The researchers used the experimental method and the survey method in their study. The researchers conducted an experiment using 100 first-year university males and divided them into four groups: one control group viewing neutral (non-sexual) stimulus/passive viewing pictures and three experimental groupserotic stimulus/passive viewing, erotic stimulus/moderately interactive viewing and erotic stimulus/highly interactive viewing groups. Men in the e xperimental groups were shown 56 sexually explicit color pictures that portrayed various sexual acts and nude women, including close-ups of womens breasts and genitals. In the passive viewing group, the men view ed each picture for 30 seconds. In th e other two experimental groups, the men were able to interact with the computer at two different levels: mode rately interactive viewing and highly interactive viewing. At the moderately interactive viewing level, the men could determine the viewing time for each picture, browse back and forth among the pictures, and control the brightness of each picture. At the highly interactive viewing level, the men had the same options as the moderately interactive group, but also could control four additional parameters. First, the men could change the color tones of the pictures. Second, the men could change and control size and proportion of every picture, making it larger or smaller or skewing it vertically or horizontally. Third, men could change and control the colo r style of all of the pictur es, such as creating pop-art presentations in which the pictures had checkered or other color patterns. Fourth, the men could zoom in and zoom out on one third of the photos in the group, thus allowing the men to magnify specific areas of those individual pictures. (The researchers did not discuss how the photos were selected for the zoomi ng feature). The researchers used a survey to measure the mens attitudes after viewing the pictures. 248 Mahood, Kalyanar aman & Sundar, supra note 243. 194

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change?249 For example, if a person is predisposed to aggressive behavi or, the arousal produced by exposure to sexual materials may enhance the aggressive predispositions.250 Conversely, researchers have found that exposure to nudity diminished subsequent aggressive behavior.251 Pornography and the Third Person Effect Theory In studies analyzing the connection betw een pornography and support for censorship, 252 researchers have looked at the third-person effect theorythe tendency for people to think others are more affected by mass media messa ges than they themselves are affected.253 Several studies have found that people perceive pornogra phy as having a greater negative influence on others than on themselves.254 In a study published in 1990, Margaret T hompson, Steven Chaffee and Hayg Oshagan found that the largest predictor of attitudes toward regulation of pornography was the perceived effect of pornography on others.255 A few years later, Hernando Rojas, Dhavan Shah and Ronald Faber surveyed students at a large Midwestern un iversity and concluded th at people would judge the media, pornography, and violence on television as having a grea ter impact on others than on 249 Allen, Alessio & Brezgel, supra note 230, at 274. 250 This is known as excitation transfer theory. Allen, Alessio & Brezgel, supra note 230, at 274. 251 Allen, Alessio & Brezgel, supra note 230, at 261. 252 See Hernando Rojas, Dhavan V. Shah & Ronald J. Faber, For the Good of Others: Censorship and the ThirdPerson Effect, 8 INTL J. PUB. OPINION RESEARCH 163 (1996); Albert C. Gunther, Overrating the X-Rating: The Third Person Perception and Support for Censorship of Pornography, 45 J. COMMCN 27 (1995); Lo & Wei, supra note 244. 253 The third-person effect is a theory of communication that was first asserted by W. Phillips Davison in 1983, and a number of subsequent studies, including experiments and surveys, have supported this theory. For a concise summary of third-person effect studies, see Rojas, Shah & Faber, supra note 252, at 165. 254 See Gunther, supra note 252; Rojas, Shah & Faber, supra note 252; Ven-hwei Lo & Anna R. Paddon, How Sexual Strategies Theory, Gender, and the Third-Person Effect Explain Attitudes About Pornography, paper presented at annual convention of Association for Journalism & Mass Communication, New Orleans, La. (Aug. 1999). 255 Thompson, Chaffee & Oshagan, supra note 191, at 81. 195

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themselves, thus supporting the third-person effect model.256 Research participants who strongly believed that pornography affected others more than themselves were more likely to display procensorship attitudes.257 The authors did point out several limitations of the study, including the non-random sample and therefore the lack of generalizability to the population as a whole.258 Renowned researcher Albert Gunther emphasi zed that a complexity of circumstances and not just perceived harmful effects of pornographywould lead to pro-censorship attitudes, such as gender differences, political ideology, at titudes toward freedom of expression and ones own exposure to pornography.259 While studies continue to support the existence of a third-person effect, researchers point out a major problem in tr ying to implement policy based on this effect: either people overestimate the effects of pornography and other messages on others, or else they underestimate the effects on themselves, or both.260 Pornography and Children Although studies on the effects of pornography have been in conclusive, professionals who work with children have stat ed that pornography harms children. In testimony before a U.S. House of Representatives subcommittee in 1998, Dr. Gary Brooks, a psychologist, said that a childs se xual development occurs gradually throughout childhood, and exposure to pornography does not provide children with a normal sexual perspective. Unlike learning provided in an educational or home setting, exposure to pornography is counterproductive to the goal of healthy and appr opriate sexual development in 256 Rojas, Shah & Faber, supra note 252, at 174-75. 257 Rojas, Shah & Faber, supra note 252, at 181-82. 258 Rojas, Shah & Faber, supra note 252, at 182. 259 Gunther, supra note 252, at 29-30. 260 Rojas, Shah & Faber, supra note 252, at 182; Gunther, supra note 252, at 35. 196

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children, Brooks said. Pornography harms ch ildren because it inundates their minds with graphic messages about their bodi es, their own sexuality, and t hose of adults and children around them, Brooks testified.261 Dr. Mary Anne Layden, a psychotherapist, testified at the same House subcommittee hearing and said that pornography is harmful to minors and produces permission-giving beliefs for sexual pathology and sexual violence. Theref ore, she said, childre n exposed to pornography can become victims or victimizers.262 Dr. Victor Cline, a clinical psychologist who treats childre n and adults who have been injured by exposure to pornography,263 stated that several experimental, field and clinical studies indicated that pornogr aphy could result in harm.264 However, he said that not everyone exposed to pornography would be adversely affected by it, although some people can suffer eventual harmful effects from repeated exposure to pornography.265 [A]s with using alcohol or even some of the highly addictive drugs, not everyone exposed will become alcoholic or addictive, at least in the early stages of use, Cline said.266 261 See Committee on Commerces Report on Child Onlin e Protection Act (to accompany H.R. 3783), H.R. REP. NO. 105 (2d Sess. 1998), at 11 (statement of Dr. Gary Brooks, Assistant Chief of Psychology Services, Dept. of Veterans Affairs, The Centerfold Syndrome). For a discussion of the Child Online Protection Act, see Chapter 5. 262 See Comm. on Commerces Report on Child Online Protection Act (to accompany H.R. 3783), H.R. REP. NO. 105 (2d Sess. 1998), at 11 (statement of Mary Anne Layden, Ph.D., Director of Education, Dept. of Psychiatry, Center for Cognitive Therapy, Univ. of Pennsylvania). 263 Victor B. Cline, Pornography Effects: Empirical and Clinical Evidence, in MEDIA, CHILDREN, AND THE FAMILY: SOCIAL SCIENTIFIC, PSYCHODYNAMIC, & CLINICAL PERSPECTIVES 245 (Dolf Zillmann & Aletha C. Huston, eds., 1994). Cline said he has treated more than 200 sex offenders, as well as sex addicts, and victims of rape or sexual abuse. He treated a brother and sister (ages 14 and 13, respectively) who began having a sexual relationship after finding their fathers pornography collection. Id. at 233, 243. He treated two brothers, ages 9 and 10, who watched their parents X-rated videos and forced younger siblings and neighbor children to strip naked, after which they forced dirt, sticks, and small rocks into their rectums. Id. at 244. 264 Id. at 232-41. 265 Id at 245. 266 Id. at 245. 197

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In a 1998 report to the Kaiser Family Foundation, researchers stated that [s]cripts and schemas learned in childhood have particular importance because children do not have welldeveloped ideas and understandings of sexua lity. Content viewed la ter may modify such schemas or reinforce them, but will not have quite the primacy of what was initially learned.267 In a report on the effect of media messag es on children, a team of researchers wrote that individuals react diffe rently, as do subgroups, base d on a variety of factors.268 They also stated that while media can facilitate change, change is not easy. For example, exposure to depictions of risky sexual beha vior is not likely to change people who have been socialized to practice safe sex.269 They concluded that exposure to se xually explicit media messages rarely leads to antisocial behavior or reactions, but rather a combina tion of factorsincluding exposure to mass medialeads to a behavioral response.270 In a 1999 article, Dr. Elissa Benedek wrot e that an unpublished study indicated that children who had been exposed to televi sed pornography were adversely affected.271 In contrast to children who had been sexually abused, chil dren who were exposed to televised pornography displayed sexually reactive behavi ors, including excessive masturba tion with an object, insertion of an object into ones own anus or vagina, or simulation of sexual interc ourse or oral copulation 267 Huston, Wartella & Donnerstein, supra note 190, at 13. Huston resear ches child development, Wartella researches child development and mass media violence, an d Donnerstein researches ma ss media violence and media policy. 268 Huston, Wartella & Donnerstein, supra note 190, at 35. 269 Huston, Wartella & Donnerstein, supra note 190, at 35-36. 270 Huston, Wartella & Donnerstein, supra note 190, at 42. 271 Elissa P. Benedek & Catherine F. Brown, No Excuses: Televised Pornography Harms Children, 7 HARV. REV. PSYCHIATRY 236, 237 (1999) (citing an unpublished manuscript by D.M. Elliott, a government lawyer). No further citation information was provided in the article. Benedek is a psychiatrist specializing in child, adolescent and forensic psychiatry and served as pres ident of the American Psychiatric Associ ation from 1990-91 and as director of research and training at the Center for Forensic Psychiatry from 1980-1997. Brown, M.Ed., is executive editor of Psychiatric News, the newspaper of the American Psychiatric Association. 198

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with a same-age child.272 Benedek said that children may be harmed by televised pornography because television is a primary and effectiv e sex educator, regardless of whether the information is accurate or wanted.273 Conclusion Congress has stated that while parents are primarily responsible for childrearing, they cannot always monitor their children, and theref ore the government has th e right to regulate the sale of sexually explicit material.274A federal appellate court has he ld that the government has a compelling government interest in helping parents supervise their children.275 In Ginsberg v. New York,276 the Supreme Court upheld a variable obscenity standard, which stated that material that is obscene for minors may not be obscene for adults.277 The Court did not, however, prohibit parents from sharing sexually explicit material with their children.278 Although social science studi es measuring the effects of pornography have been inconclusive, Congress and th e Supreme Court have acknowle dged a compelling government interest in protecting minors from material deemed harmful, incl uding sexually explicit content. Historically, the governments interest in pr otecting minors has focused on regulating obscenity 272 Id. at 237. 273 Id. at 238. 274 See H.R. REP. NO. 105-775 (2d Sess. 1998), at 12 (citing People v. Kahan 15 N.Y.2d 311, 312, 206 H.E.2d 333, 334 (1965) (as cited in Ginsberg v. New York, 390 U.S. 629, 640 (1968)). 275 Action for Childrens Television v. FCC, 11 F.3d 170, 177 (D.C. Cir. 1993). The Court wrote, The government's asserted interest in protecting childre n also includes its independent interest in protecting the well-being of vulnerable youth and in shielding them from physical and psychological abuse. Id. 276 Ginsberg v. New York, 390 U.S. 629 (1968). 277 Id. at 645. 278 Id. at 639. 199

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200 and indecency. With the advent and growth of the Internet, however, Congress became increasingly concerned with minor s ready access to online pornography.

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CHAPTER 5 FEDERAL ATTEMPTS AT PR OTECTING MINORS FROM ONLINE MATERIAL DEEMED HARMFUL Introduction Before Congress passed the Childre ns Internet Protection Act in 2000,1 a law that required public libraries and schools to install Internet filters on user computers, it tried twice before to restrict minors access to online pornography. Congress first attempted to regulate sexually explicit online content when it passed the Communications Decency Act of 1996, one portion of the Telecommunications Act of 1996.2 The CDA criminalized the intentional online tr ansmission of child pornography and obscene, indecent,3 and patently offensive material4 to anyone under the age of 18.5 The Supreme Court struck down th e statute in 1997.6 A year after the Supreme Court struck dow n the CDA, Congress passed the Child Online Protection Act of 1998,7 restricting minors access to sexually explicit commercial materials on 1 Pub. L. No. 106-554, 1(a)(4), 114 Stat. 2763 (2000) (codified at 20 U.S.C. 9134(f)(1)(A) & 47 U.S.C. 254(h)(6)(B) & (C)). The CIPA was challenged and subsequently upheld by the U.S. Supreme Court. See United States v. Am. Library Ass'n, 539 U.S. 194 (2003). See Chapter 7 for a complete discussion of the CIPA. 2 See Commcns Decency Act of 1996, Pub. L. No. 104-104, 551; 110 Stat. 56, 133-39 (1996). 3 47 U.S.C. 223(a)(1)(b). 4 47 U.S.C. 223(d)(1). 5 47 U.S.C. 223 (d)(1)(b) (1996). In addition, the CDA mandated that televisions with a diagonal screen size of thirteen inches or greater (and manufactured after 1997) contain a V-chip, which allows viewers to block television programs based on content, including sexual and violent content. See Commcns Decency Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, 133-39 (1996); Telecommunications Act of 1996, Pub. L. No. 104-104 551, 110 Stat. 56, 139 (1996). For such a system to work, programmers had to use a uniform rating system, and in 1996, the entertainment industries agreed to use the Televi sion Parental Guidelines (TVPG). See Otilio Gonzalez, Regulating Objectionable Content in Multimedia Platforms: Will Convergence Require a Balance of Responsibilities Between Senders and Receivers?, 20 SANTA CLARA COMPUTER & HIGH TECH. L.J. 609, 626-29 (2004). See infra notes 13 60 and accompanying text for a discussion of the CDA. 6 Reno v. ACLU 521 U.S. 844 (1997). 7 Pub. L. No. 105-277, 112 Stat. 2681 (1998) (codified at 47 U.S.C. 231). 201

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the World Wide Web8 and prohibiting the sale of sexually explicit materials on the Internet to minors.9 The Supreme Court barred the government from enforcing the Child Online Protection Act (COPA) in 2002 and 2004.10 In 2002, the Supreme Court remanded the case to the Third Circuit of the U.S. Court of Appeals for furt her examination and clarification. In 2004, the Supreme Court remanded the case to the U.S. Di strict Court for the Eastern District of Pennsylvania to determine whether software filters would work as well as a criminal law in shielding children fr om online pornography.11 In 2007, a U.S. District Court held that the COPA facially violated the First Amendment because the statute was a content-based statute that did not meet the strict scrutiny testtha t is, the COPA was not narrowly tailored to meet the compelling government interest of protecting minors from material deemed harmful.12 Communications Decency Act of 1996 The CDA was initiated as a re sult of the concerns of Se n. James Exon (D-Neb.) with what he viewed as the ready availability of pornography and indecency on the Internet13 and his desire to protect children from such content.14 To garner support for the bill, Exon compiled a Blue Book, a collection of pornography sites that he had download ed from the Internet, put in 8 See H.R. REP. NO. 105-775 (2d Sess. 1998), at 10. 9 Id. at 5, 12. 10 See Ashcroft v. ACLU, 535 U.S. 564, 566 (2002); Ashcroft v. ACLU, 542 U.S. 656, 668 (2004). 11 See Ashcroft v. ACLU, 542 U.S. at 673. 12 ACLU v. Gonzales, 478 F. Supp. 2d 775, 809-10, 821 (E.D. Pa. 2007). For a summary of the district courts opinion, see infra notes 196-213 and accompanying text. 13 See 141 CONG. REC. 15503 (June 9, 1995) (statement of Sen. Exon). 14 See id. 202

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a blue folder and made available to other senators for review.15 Newt Gingrich, a prominent Republican and Speaker of the House at the time, stated that the CDA violated free speech.16 Senator Patrick Leahy (D-Vt.) also opposed the CDA, saying the government should not take additional steps to regulate the Internet.17 A House Conference Report on the Telecommun ications Act of 1996 stated that the federal government has a compelling interest in shielding minors from indecency.18 The CDA contained two sections that Congress wrote in an effort to protect minors from online pornography.19 The CDA criminally prohibited the in tentional transmission, by means of any interactive computer service, any communication cont aining child pornography and obscene or indecent material20 to anyone under the age of 18.21 The CDA also criminally prohibited the intentional transmission, to persons under 18, by means of any interactive computer service, any communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs22 to 15 See 141 CONG. REC. 15503-04 (June 9, 1995) (statement of Sen. Exon). See also Joel Sanders, The Regulation of Indecent Material Accessible to Children on the Internet: Is it Really Alright to Yell Fire in a Crowded Chat Room? 39 CATHOLIC L. 125, 133 (1999). 16 Robert Cannon, The Legislative History of Senator Exons Communication Decency Act: Regulating Barbarians on the Information Superhighway, 40 FED. COMM. L.J. 51, 67 (1996). 17 See id at 65. 18 House Conference Report on the Telecommunications Act of 1996, H. REP. NO. 104-458 (2d Sess. 1996), at 188. 19 See id. Congress also wanted to promote the development of the Internet, protect Intern et Service Providers that tried to screen objectionable material, and remove disi ncentives for developing and using blocking and filtering technology that would empower parents to restrict their childrens acces s to objectionable or inappropriate online material. See 47 U.S.C. 230(b) & (c). 20 47 U.S.C. 223(a). 21 47 U.S.C. 223(d)(1)(a). 22 47 U.S.C. 223(d)(1)(b). 203

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anyone under the age of 18.23 Those found in violation of the CDA could be fined, imprisoned, or both.24 Immediately after President Bill Clinton si gned the Communications Decency Act into law on Feb. 8, 1996, the American Civil Liberties Uni on and other plaintiffs filed suit, requesting a preliminary injunction against the enforcement of the CDA, stating that it was unconstitutional because it was overbroad and vague.25 The plaintiffs only challenged the indecency and patently offensive provisions of the CDA and not the obscenity or child pornography provisions.26 Federal District Court Judge Ronald L. Buck walter granted a temporary restraining order enjoining the government from enforcing the CDA.27 He said that the use of the term indecent might be unconstitutionally vague because it could be applied to a whole range of conduct not encompassed by patently offensive.28 Four months later, a three-judge federal district court panel granted a preliminary injunction, stating that the CDA violated the First Amendment.29 Chief Judge Dolores Sloviter authored the panels opinion on behalf of Ronald L. Buckwalter, Stewart Dalzell and herself. Sloviter stated that Congress did not define the terms indecency and patently offensive.30 23 47 U.S.C. 223 (d)(1)(b) (1996). 24 47 U.S.C. 223(d)(2) (1996). 25 ACLU v. Reno, 1996 U.S. Dist. LEXIS 1617 at *3 and *9-10; 24 Media L. Rep. 1379 (E.D. Pa. 1996). 26 ACLU v. Reno, 929 F. Supp. 824, 829 (1996). Obscenity and child pornography were prohibited by law prior to the enactment of the CDA. Id. 27 ACLU v. Reno, 1996 U.S. Dist. LEXIS 1617 at *9-10; 24 Media L. Rep. 1379 ((E.D. Pa. 1996). 28 Id. at *6-7. 29 ACLU v. Reno 929 F. Supp. 824 (E.D. Pa. 1996). 30 Id. at 857. 204

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She said that those provisions of the CDA would have a chilling effect on free expression31 and held that those two provisions were unconstitutional.32 She wrote that the indecency and patently offensive provisions were a content-ba sed restriction of speech and were not narrowly tailored,33 and therefore had to pass the strict scrutiny test.34 Under strict scrutiny, any contentbased speech regulation must serve a compelling gove rnment interest and be narrowly tailored to further that interest.35 The court found that existing tec hnology could not effectively prohibit minors from accessing online content without also denying access to adults.36 Upon direct appeal to the Un ited States Supreme Court, as stipulated under a special review provision of the Communications Decency Act,37 the Supreme Court affirmed the federal district courts holding, stat ing that two sections of the CDA were unconstitutional.38 In a 7-2 decision, the Supreme Court struck down the provis ions that would have restricted minors from accessing online pornography. The Court found the provisions overbroad and vague, and therefore in violation of the First Amendment.39 31 Id. at 851. 32 Id. at 849. 33 Id. at 851. 34 Id 35 Id To pass the strict scrutiny test, the Supreme Court stated that a regulation must promote a compelling government interest and be the least restrictiv e means to further that articulated interest. See Sable Commcns of Calif., Inc. v. FCC, 492 U.S. 115, 126 (1989)). 36 ACLU v. Reno, 929 F. Supp. at 845. 37 Under the special review provisions of the CDA, the government couldbut was not required toappeal directly to the United States Supreme Court. See 47 U.S.C. 561(b). 38 Reno v. ACLU, 521 U.S. 844, 885 (1997). 39 Id. at 864. 205

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Justice John Paul Stevens, in writing the Courts opini on, acknowledged the government has a compelling interest in protect ing children from harmful materials,40 but said that the government has a heavy burden in explaining why a less restrictive law would not be as effective.41 Stevens said that the CDA was not narrowly tailored to meet the government interest.42 He reasoned that that inte rest does not justify an unn ecessarily broad suppression of speech addressed to adults.43 As we (Supreme Court justices) have explained, the Government may not reduce the adult population to only what is fit for children.44 In applying the strict scrutiny standard to the CDA, the Cour t said that while some other media, including broadcasting, received a lower level of scruti ny for various reasonssuch as the history of extensive government regulation, the scarcity of access, and its "invasive" naturethose factors were not present in cyberspace.45 In finding the CDA overbroad, Justice Stevens wrote: [The CDA] lacks the precision th at the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harm ful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at leas t as effective in achieving the legitimate purpose that the statute was enacted to serve.46 40 Id. at 875. 41 Id. at 879. 42 Id. 43 Id. at 875. 44 Id. (quoting Sable Commcns of Calif., Inc. v. FCC 492 U.S. at 128 (1989) and Butler v. Michigan 352 U.S. at 383 (1957)). 45 Id. at 868-69. According to the Court, in contrast to a time/place/ma nner regulation, [T]he CDA is a contentbased blanket restriction on speech that requires the application of the most stringent review of its provisions. Id. at 868. 46 Id. at 874. 206

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Justice Stevens said that the CDA was va gue because it did not define the terms indecent and patently offensive.47 Stevens said the Court was troubled by the CDAs vagueness for two reasons. First, he said that the lack of precision in th e statutes wording could lead to a chilling effect on speech, which would violate the First Amendment. Precise wording is needed when a regulation restricts speech, Stev ens wrote. Second, he said that the fear of criminal prosecution could silence potential speakers.48 Even parents could be prosecuted under the statute, Stevens said. For example, parents w ho allowed their children Internet access or sent their 17-year-old college freshmen birth control information in an e-mail message could be fined or imprisoned or both, he said.49 Justice Stevens contrasted the Supreme Court s decision on the CDA from its decision in 1968 in Ginsberg v. New York.50 The Ginsberg Court upheld a New York state statute that 47 Id. at 871-72. Under the Radio Act of 1927 (the precursor to the Federal Communications Act of 1934), the Federal Radio Commission (the predecessor to the Federa l Communications Commission) prohibited broadcasters from airing obscenity, indecency and profanity. The Federal Communications Act of 1934 established the FCC and gave it the authority to sanction broadcasters that aired obsc ene, indecent or profane content. In 1948, the Criminal Code was revised to include provisions that had previously been located in other titles of the United States Code. At that time, the prohibition against obsce ne, indecent, and profane broadcasts was removed from the Communications Act and re-enacted as 18 USC 1464: Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both. In FCC v. Pacifica Foundation, the Supreme Court upheld the FCCs power to punish broadcasters for airing indecent content because broadcasting was considered intrus ive and uniquely accessible to children. See FCC v. Pacifica Found., 438 U.S. 726, 748-49 (1978). The legislative history of the CDA indicates that the definition of indecency in the act was meant to be the same definition established by the FCC and upheld by the United States Supreme Court, e.g. [The] concept of 'indecent' is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience." See Pacifica., 438 U.S. at 731-32 (citing 56 F.C.C. 2d. at 98). A conference committee for the CDA acknowledged that alth ough the definitions of indecency have varied slightly depending on communications medium, the essence of the definition of indecency has been consistent as patently offens ive descriptions of sexual and excretory activities. See H.R. Conf. Rep. No. 458, 104th Cong. 2d Sess. 188-89 (1996). 48 Reno v. ACLU, 521 U.S. 844, 871-74 (1997). 49 Id. at 878. 50 Ginsberg v. New York, 390 U.S. 629 (1968). See Chapter 4, supra notes 129 to 143, for a discussion of Ginsberg. 207

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prohibited the sale of pornogra phy to minors under the age of 17.51 In the CDA opinion, Stevens wrote that there were four key differences between the New York state statute and the Communications Decency Act. First, the Ginsberg Court did not prohibi t parents from buying sexually explicit material for their children. The CDA, however, made parental participation and consent irrelevant. Second, the New York stat ute applied to commerci al transactions only, whereas the CDA applied to both commercial an d non-commercial transactions. Third, the New York statute defined material that was harmful to minors as that which is utterly without redeeming social importance for minors. In contrast, the CDA did not define the terms indecent or patently offensive.52 Fourth, the New York statut e defined minors as persons under the age of 17, whereas the CDA de fined minors as under the age of 18.53 The Supreme Court agreed with the district courts findings that existing technology, as of 1996, did not allow Web sites to verify age. Ev en if age verification was possible, it would be very expensive for non-commercial and some commercial Web sites to try to verify that users are adults.54 In declaring the CDA unconstitutional, the Supreme Court reasoned that although sexually explicit material was widely availabl e online in 1997, Internet users would rarely encounter such material accident ally. Justice Stevens wrote, Unlike communications received by radio or television, the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. A child requires some sophistication 51 Ginsberg, 390 U.S. at 639. 52 Reno v. ACLU, 521 U.S. 844, 865-66 (1997). 53 Id. at 865-66. 54 Id. at 876-77. 208

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and some ability to read to re trieve material and thereby to use the Internet unattended.55 Justice Sandra Day OConnor authored a dissenting opinion, concurring in the judgment in part and dissenting in part, and wa s joined by Chief Justice William Rehnquist.56 OConnor wrote that the creation of adult zones on the Internet would be cons titutionally sound, arguing that the states have denied minors access to adu lt establishments and to speech deemed harmful to minors.57 However, OConnor agreed with the Court that it was impossible to restrict online speech to an adult zone, and therefore speakers could not be assured that their speech would only reach adults.58 She also agreed with the Court th at indecent transmissions could be prohibited in chat rooms because there was no way to exclude minors from online chat rooms.59 However, OConnor said she would have upheld the CDA as it applied to indecent speech between adults and minors when the adults knew they were comm unicating with minors.60 Child Online Protection Act of 1998 In an attempt to remedy the deficiencies of the Communications Decency Act, Congress enacted the Child Online Protection Act61 in 1998, despite warnings from the Justice Department concerning the constitutionality of the COPA.62 President Bill Clinton signed the COPA into law 55 Id at 854 (quoting ACLU v. Reno, 929 F. Supp. 824, 844-45 (E.D. Pa. 1996)). 56 Id. at 886 (OConnor, J., dissenting). 57 Id. at 887-88. 58 Id. at 891. 59 Id. at 893. 60 Id. at 897. 61 See Child Online Protection Act, Pub. L. No. 105-277, 112 Stat. 2681 (1998) (codified at 47 U.S.C. 231). 62 See Letter from L. Anthony Sutin, Acting Assistant Attorney General, to Thomas Bliley, Chairman of the Comm. on Commerce, U.S. H. R. (Oct. 5, 1998) available at http://www.eff.org/legal/cases/ACLU_v_Reno_II/HTML/19981005_doj_congress.letter.html (last visited July 20, 2009). See also American Civil Liberties Union, Censorship in a Box: Why Blocking Software Is Wrong for Public Libraries (2002), http://www.aclu.org/privac y/speech/14915pub20020916.html (last visited July 20, 2009). 209

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on October 21, 1998 as part of th e Omnibus Appropriations Act.63 The COPA, which was to go into effect on November 29, 1998, 64 immediately was challeng ed. The COPA was brought before the federal courts on seven di fferent occasions between 1998 and 2007. Based on Supreme Court precedent establishing the governments compelling interest in protecting children,65 Congress passed the COPA in an e ffort to restrict minors access to sexually explicit commercial materials on the World Wide Web,66 including teasers,67 and to prohibit the sale of sexually explicit materials on the Internet to minors.68 A 1998 House report stated that minors had ready acces s to pornographic materials online,69 and parental control protections70 and self-regulation had not provided a national solution to protect minors from online pornography.71 In the debate on the proposed bill, Congressman Billy Tauzin (R-La.) said that the bill addressed the S upreme Courts concerns in Reno,72 including a narrow prohibition, tighter definition, and a r ealization that the applic ability of the law may change as technology is involved.73 In the Commerce Committees 1998 report, it recommended the passage of the 63 105 Pub. L. No. 277, 112 Stat. 2681 (enacting H.R. 4328, 105th Cong. (1998)). 64 Id. 65 See H.R. REP. NO. 105-775 (2d Sess. 1998), at 11. See also Ginsberg v. New York, 390 U.S. 629 (1968); New York v. Ferber, 458 U.S. 747 (1982). 66 See H.R. REP. NO. 105-775 (2d Sess. 1998), at 10. 67 Teasers are free semi-nude or nude images that are designed to encourage Internet users to enter a site containing more sexually explicit content, usually for a fee. See ACLU v. Reno, 31 F. Supp. 2d 473, 476 (1999). 68 H.R. REP. NO. 105-775 (2d Sess. 1998), at 5, 12. 69 Id. at 8-10. 70 Id. at 9. 71 Id. at 17. 72 See Reno v. ACLU 521 U.S. 844, 865 (1997). 73 See 144 CONG. REC. H9906 (1998) (statement of Rep. Tauzin). 210

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COPA, stating that an international news service had reported that nearly 50% of material on the Web was unsuitable for children.74 The COPA was somewhat more narrowly ta ilored than the CDA. The COPA defined minors as persons under the age 17, just as the Ne w York statute upheld by the Supreme Court in Ginsberg75 did, whereas the CDA defined minors as persons under the age of 18.76 Unlike the CDA, the COPA would not pr ohibit parents from obtaining online pornography for their children.77 In addition, the COPA legislation did not include the indecent and patently offensive language of the CDA.78 The COPA restricted a narrower category of content,79 material considered harmful to minors, which was defined as: [A]ny communication, picture, imag e, graphic image file, article, recording, writing, or other matter of any kind that (A) the average person, appl ying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander, to the pr urient interest; (B) depicts, describes, or represen ts, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated no rmal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and 74 See H.R. REP. NO. 105-775 (2d Sess. 1998), at 10 (citing Half of Net Content Said Unsuitable for Children, REUTERS FINANCIAL SERV. (Jan. 10, 1996)). 75 Ginsberg v. New York, 390 U.S. 629 (1968). See supra notes 50-53 and accompanying text for a summary of Ginsberg. For a discussion of Ginsberg and the variable obscenity standard, see Chapter 4, supra notes 129-143 and accompanying text. 76 See Reno v. ACLU, 521 U.S. at 865-66 (1997). 77 Timothy Zick, Congress, the Internet, and the Intractable Pornography Problem: The Child Online Protection Act of 1998, 32 CREIGHTON L. REV. 1147, 1178 (1999). 78 See supra notes 20-24 and accompanying text for the text of the CDA. 79 Ashcroft v. ACLU 535 U.S. 564, 569-70 (2002). The U.S. Supreme Court said that the COPAs restriction on material that is harmful to minors was narrower th an the CDAs restrictions on indecent and patently offensive communications. Id. 211

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(C) taken as a whole, lacks seriou s literary, artis tic, political, or scientific value for minors. 80 In amending an earlier version of the COPA bill, the House Committee on Commerce adopted the variable obscenity standard.81 The committee stated that its intention was for the definition of material harmful to minors to parallel the Ginsberg82 and Miller83 definitions of obscenity and harmful to minors.84 Similar to Ginsberg and unlike Miller, however, the committee defined the online community standard as a variable obscenity standard, rather than a geographic community standard that the Miller obscenity established.85 Therefore, the COPA, in practice, would crea te a uniform national standa rd of variable obscenity.86 Unlike the CDA, the COPA would have a pplied only to those materials found on the World Wide Web and not to material located in ot her places on the Internet, such as in e-mail messages, listservs, news groups or live chat rooms.87 The COPA also would have only applied to commercial Web sites,88 whereas the CDA would have applied to commercial, 27-28. 8). rds in the context of the Web is controversial, but understands it as an adult standard, rather than a geographic standard, and one that is reasonably constant among merica with respect to what is suitable for minors. 80 See 47 U.S.C. 231(e)(6). 81 See H.R. REP. NO. 105-775 (2d Sess. 1998), at82 Ginsberg v. New York, 390 U.S. 629 (19683 Miller v. California, 413 U.S. 15 (1973). 84 See H.R. REP. NO. 105-775 (2d Sess. 1998), at 27. 85 See id. at 28. In its report on H.R. 3783, a House b ill on the COPA, the Commerce Committee wrote, The Committee recognizes that the availability of community standa adults in A86 See id. 87 See id. at 1288 See id. 212

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noncommercial and nonprofit online communicati ons, as well as individuals online communication The CO of the eans of the World ide Web, makes any communicat ion for commercial purposes harmful to minors shall be fined not more than $50,000, ver, if they, in good fa adult e the med s.89 PA stated: Whoever knowingly and with knowle dge of the character material, in interstate or forei gn commerce, by m W that is available to any minor and that includes any material that is imprisoned not more than 6 months, or both.90 Defendants would have an affirmative defens e against prosecution, howe ith, required identification such as a credit card, debit account, adult access code or personal identification number (PIN)91 or a digital certificat e that verifies age.92 The COPA statute also had established a temporary Commission on Online Child Protection to study methods to help reduce minors access to certain sexually explicit materials online.93 The commission released its report in 200 0 and noted that the Internet, unlik broadcast media, was inherently multi-directional and interactive,94 an attribute that was both promising to users and challenging to policy-makers.95 The commission made major recommendations in four key areas in an effort to protect children from Internet content dee 89 47 U.S.C. 223(d). 90 47 U.S.C. 231(a)(1). 91 47 U.S.C. 231(c)(1)(A). 92 47 U.S.C. 231(c)(1)(B). 93 See Commission on Child Online Protection Act, Report to Congress, at 7 (October 2000) available at http://www.copacommission.org/report/COPAreport.pdf The Commission was a temporary, 19-member organization composed of members of industry and government. See also Pub. L. No. 105-277, Div C, Title XIV, 1405, 112 Stat. 2681-739 (1998). 94 Commission on Child Online Protection Act, Report to Congress, at 7 (October 2000) available at http://www.copacommission.org/report/COPAreport.pdf 95 Id. The Commission also pointed out that the global nature of the Internet presents additional concerns to law enforcement agencies because a great deal of material deemed harmful to minors, as well as obscenity and child pornography, originates from overseas. 213

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harmful to minors: 1) to make aggressive efforts toward public education, including the promotion of acceptable use policies; 2) to pr ovide consumers with empowerment, such as independent evaluation of ch ild protection technologies;96 3) to increase the resources to enforce ontent Web sites to ven rights of adults.102 He said that those challenging the COPA had shown the likelihood that they would succeed on at least some of their claims,103 and the balance of interests weighed in favor existing obscenity laws; and, 4) to encourage Internet Service Providers and adult c voluntarily take steps to re duce access to online adult content by minors.97 Round 1: U.S. District Court for th e Eastern District of Pennsylvania The Child Online Protection Act worked its way through the federal court system se times in nine years, from 1998 to 2007. On No vember 20, 1998, federal district court Judge Lowell Reed, Jr. granted a te mporary restraining order98 prohibiting the government from implementing the COPA.99 The American Civil Liberties Unio n and other plaintiffs had argued that the COPA was unconstitutionally vague and would infringe upon the protected speech of both adults and minors.100 The government argued that it had a compelling interest in protecting minors from online materials that were not obscene by adult standards.101 Reed said he had to balance the public interest in protecting minors from online cont ent with the First Amendment 96 The COPA Commission stated that there was a lack of information about how technologies work, and a lack of transparency about what info rmation they might block. Id. at 41. 97 Id. 39-46. 98 A temporary restraining order forbids an opposing party from taking action until an application for a preliminary or permanent injunction can be heard. 99 See ACLU v. Reno, 1998 U.S. Dist. LEXIS 18546 at *11 (E.D. Pa. 1998). 100 Id. at *2. 101 Id. at *6. 102 Id. at *10-11. 103 Id. at *11. 214

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of granting the restraining order.104 Reed said the law would chill online speech and lead to selfcensorship.105 Round 2: U.S. District Court for th e Eastern District of Pennsylvania Less than three months later, Reed issued a preliminary injunction106 against enforcement of the COPA,107 one that was affirmed by the Third Ci rcuit of the U.S. Court of Appeals.108 Reed again said the law woul d chill online speech and that such self-censorship of constitutionally-protected speech could result in an irreparable harm to the plaintiffs.109 He acknowledged that there exists a compelling gove rnment interest in protecting children from harm,110 but he also stated that [w] hile the public has an interest in protecting its minors, the public interest is not served by the enforcement of an unconstitutional law.111 The American Civil Liberties Union and ot her plaintiffs had argued the COPA was invalid on its face and violated the First Am endment rights of adults and minors and was unconstitutionally vague.112 Reed held that the strict scruti ny standard would a pply to the COPA, as it was content-based speech.113 He also said the law abridged the free speech rights of 104 Id. 105 Id. at *10. 106 A preliminary injunction is a temporary court order commanding or prohibiting an action. 107 ACLU v. Reno, 31 F. Supp. 2d 473, 498-99 (E.D. Pa. 1999). 108 ACLU v. Reno, 217 F.3d 162, 166, 181 (3d Cir. 2000). 109 ACLU v. Reno, 31 F. Supp. 2d at 497. 110 Id. at 498. 111 Id. 112 Id. at 477. 113 Id. at 492. 215

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adults.114 He stated that less-restrictive bloc king or filtering technologyalthough imperfect could protect children from online pornogr aphy, just as well as the COPA could.115 Moreover, unlike the COPA, filtering software could block sexually explicit Web sites emanating from other countries, Reed said.116 Round 3: Third Circuit of the U.S. Court of Appeals In 2000, the Third Circuit of the U.S. Court of Appeals affirmed the District Courts holding, but on di fferent grounds.117 In upholding Judge Reeds preliminary injunction,118 the Third Circuit looked only at the community standards aspect of the Child Online Protection Act. In authoring the opinion for the court, Senior Judge Leonard Garth rule d that the statute was constitutionally overbroad because of its re liance on contemporary community standards in the context of the elec tronic medium of the We b to identify material that is harmful to minors.119 Garth said that the community standard s provision would subjec t Internet Service Providers (ISPs) in the most tolerant communities to the decency standards of the most restrictive or purit anical communities.120 What is harmful to minors in one community may not be harmful to minors in another community, Garth said.121 114 Id. at 495. 115 Id. at 497. 116 Id. 117 ACLU v. Reno, 217 F.3d 162, 166, 172, 174 (3d Cir. 2000). 118 Id. at 166, 172. 119 Id. at 166, 173. However, the court pointed out that, in contexts other than the Internet and Web, it remained satisfied with the three-part obscenity test the Supreme Court established in Miller v. California, 413 U.S. 15 (1973). See ACLU v. Reno, 217 F.3d at 180. 120 ACLU v. Reno, 217 F.3d at 166, 175. 121 Id. at 177. 216

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The Third Circuit recognized th at by focusing solely on community standards, it had used a different analysis than the dist rict court and had not addressed the issues raised by the district court.122 Judge Garth wrote: [A] contemporary community standards clause so concerns us that we are persuaded that this aspect of COPA, without reference to its other provisions, must lead inexorably to a holding of a likelihood of unconstitutionality of th e entire COPA statute. Hence we base our opinion entirely on the basis of the likely unconstitutionality of this clause, even though the District Court relied on numerous other grounds.123 The appellate court distinguish ed the COPA from the Suprem e Courts holdings in cases involving the mailing of pornography124 and telephone dial-a-porn.125 Judge Garth stated that, in those instances, the defendants could limit th eir exposure to liabili ty by avoiding those communities with particularly restrictive standard s, while continuing to provide the controversial material in more liberal-minded communities,126 unlike Web publishers prosecuted under the COPA.127 Garth said that the Miller obscenity test could not be a pplied to the Web because Web publishers are unable to control the geographic scope of the r ecipients of their communications.128 122 Id. at 173-74. 123 Id. 124 Id. at 166, 175-76 (citing Hamling v. United States, 418 U.S. 87 (1974)). 125 Id. (citing Sable Commcns. of Calif., In c. v. FCC, 492 U.S. 115 (1989)). 126 Id. 127 Id. at 176. 128 Id. at 180. 217

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Round 4: U.S. Supreme Court In 2002, the U.S. Supreme Court issued its first of two opinions on the Child Online Protection Act,129 with its second opinion issued two years later.130 Because the Third Circuit had focused solely on the community standards as pect of the COPA, the U.S. Supreme Court in 2002 only looked at that one narrow issue: whet her the Child Online Protection Acts us community standards in identifying materi als harmful to minors violated the First Amendment. e of 131 The Supreme Court held that the reliance on the community standards provision of the COPA to identify material that was harmful to minors did not, by itself, violate the overbreadth doctrine of the First Amendment.132 The Court did not issue an opinion as to whether the COPA was overbroad for other reasons or was unconstitutionally vague.133 In an 8-1 plurality decision authored by Ju stice Clarence Thomas, the Court vacated the judgment of the Third Circuit of the U.S. Court of Appeals a nd remanded the case to the Third Circuit to examine three issues: 1) whether th e COPA was overbroad; 2) whether the COPA was vague; and 3) whether the COPA likel y would not survive strict scrutiny.134 The preliminary injunction prohibiting the governme nt from enforcing the COPA remained in effect for two reasons. First, the government had not asked th e Supreme Court to vacate the injunction. Second, 129 Ashcroft v. ACLU, 535 U.S. 564, 566 (2002). 130 For a discussion of the Courts second opinion on the COPA, Ashcroft v. ACLU, 542 U.S. 656 (2004), see infra notes 163-195 and accompanying text. 131 Ashcroft v. ACLU, 535 U.S. at 566. 132 Id 133 Id. at 585-86. 134 Id. Justice Clarence Thomas authored the plurality opinion and was joined by Chief Justice William Rehnquist and Antonin Scalia in all seven parts and by Justice Sandra Day OConnor in four of seven parts. Justices Sandra Day OConnor and Stephen Breyer concurred in part and concurred in the judgment. Justice Anthony Kennedy, joined by Justices David Souter and Ruth Bader Ginsberg, concurred in the judgment. Justice John Paul Stevens dissented. 218

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the Court said that prudence dictates allowi ng the Court of Appeals to first examine these difficult issues of overbreadth, vagueness, and the COPAs unlik elihood of surviving strict scrutiny.135 Justice Clarence Thomas authored the Cour ts plurality opinion, and was joined in portions of the opinion by Chief Justice Willia m Rehnquist, and justices Sandra Day OConnor, Antonin Scalia and Stephen Breyer. Thomas stated that COPAs reliance on community standards does not by itself rende r the statute substantially overbr oad for the purposes of the First Amendment.136 Although eight of the nine justices agreed th at the Supreme Court should remand the case to the Third Circuit, their reasoning varied. Ju stices Sandra Day OConnor and Stephen Breyer wrote separate concurring opinions. Justice OC onnor wrote that while precedent did not prevent the establishment of a national standard, such a standard would make it too burdensome for online communicators to control who received their messages.137 She said the expectation that Internet speakers could control who accessed thei r material would be too much to ask and the COPA would potentially suppress an inordinate amount of expression.138 Justice Stephen Breyer wrote that he beli eved Congress, in writing the COPA, intended the term community to refer to a nationa l adult community and not local geographic communities.139 He said a local standard would resu lt in Web content providers adopting the 135 Id. To pass the strict scrutiny test, the Supreme Court ha s stated that a regulation must promote a compelling government interest and be the least re strictive means to further that articulated interest. Sable Commcns of Calif., Inc. v. FCC, 492 U.S. 115, 126 (1989). 136 Ashcroft v. ACLU, 535 U.S. at 585-86. 137 Id. at 587-89 (OConnor, J., concurring). 138 Id. 139 Id. at 589-90 (Breyer, J., concurring) (citing a House of Representatives Report on the COPA that he said was apparently a uniform view within Congress. In part, the report reads, "The Committee recognizes that the 219

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standards of the most puritan community.140 He said that even with a national standard, some regional variations may remain, but those variati ons are not, from the pe rspective of the First Amendment, problematic because such variations ar e inherent in a system that uses jurors in local communities.141 Justice Anthony Kennedy, joined by justices David Souter and Ruth Bader Ginsburg, concurred in the judgment to vacate and rema nd. Justice Kennedy wrote that the plurality was wrong in stating that the Act is narrow enough to render the national variation in community standards unproblematic.142 Justice Kennedy wrote that the Child Online Protection Act is overbroad and unlikely to survive a strict sc rutiny challenge because the application of a national standard would still vary in different communities.143 Although agreeing with the plurality decision to remand, Kennedy wrote th at the national variation in community standards could constitute a substantial burden on Internet co mmunication. He wrote that he had grave doubts COPA is consis tent with the First Amendment.144 Justice John Paul Stevens, who wrote the only dissenting opinion, said he would have affirmed the judgment of the Third Circuit.145 Stevens wrote that the COPA was overbroad because Web publishers cannot control who accesses their Web sites146 and even the applicability of community standards in the context of the Web is controversial, but understands it as an 'adult' standard, rather than a 'geographic' st andard, and one that is reasonably c onstant among adults in America with respect to what is suitable for minors." H. R. REP. NO. 105-775, p. 28 (1998)). 140 Ashcroft v. ACLU, 535 U.S. at 590 (Breyer, J., concurring). 141 Id. at 591. 142 Id. at 593 (Kennedy, J., concurring). 143 Id. at 591-94. 144 Id. at 602. 145 Id. at 612 (Stevens, J., dissenting). 146 Id. at 606. 220

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narrowest version of the statute abridges a substantial amount of protected speech that many communities would not find harmful to minors.147 Round 5: Third Circuit of the U.S. Court of Appeals On remand from the U.S. Supreme Court, the U.S. Court of Appeals for the Third Circuit in 2003 held that the di strict court did not abuse its di scretion in granting a preliminary injunction against enforcement of the Child Online Protection Act148 and that the plaintiffs would probably prove at trial that th e COPA is substantially overbroad.149 st.152 The Third Circuit Court of A ppeals, for the second time, affirmed the district courts ruling150 to issue a preliminary injunction against the COPA, but this time on different grounds than the statutes reliance on community st andards that the court had used before.151 In its second review of the COPA, the Third Circuit he ld that the COPA could not pass the content based strict scrutiny te The court said that the COPA was not the least restrictive method of advancing the government interest,153 and several provisions of the COPA were not narrowly tailored, including the definitions of harmful to minors, as a whole, commercial purposes and minors.154 First, in evaluating the harmful to mi nors standard, the c ourt stated the COPA 147 Id. at 610. 148 ACLU v. Ashcroft, 322 F.3d 240, 265 (3d Cir. 2003). 149 Id. at 271. 150 ACLU v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999). 151 ACLU v. Ashcroft, 322 F.3d 240, 243 (3d Cir. 2003). 152 Id. at 253, 261, 265-66. To pass the strict scrutiny test, the Supreme Court has stated that a regulation must promote a compelling government interest and be the least re strictive means to further that articulated interest. Sable Commcns of Calif., Inc. v. FCC, 492 U.S. 115, 126 (1989). 153 ACLU v. Ashcroft, 322 F.3d 240, 261, 265-66 (3d Cir. 2003). 154 Id. at 251-61. 221

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limits the range of permissible material under the statute to that which is deemed acceptable only by the most purit anical communities.155 Second, the court said that the concept of taken as a whole does not satisfy th e First Amendment because it is difficult and complicated to determine context on the Internet.156 Third, in reviewing the commercial purposes provision, the court held it would violate th e First Amendment because it woul d impose content restrictions on a substantial number of commercial speaker s who were not engaged in obscene speech157 or who posted any harmful to minors material on thei r Web sites, even if they did not profit from it or post the material as a principal part of their business.158 Fourth, the court stated it was troubled by the term minor, which referred to anyone from the ages of 3 to just under 17.159 The court held that the COPA does not use the least restrictive means because minors could access foreign Web sites or use their parent s credit cards (or thei r own credit cards) in accessing content covered under the act.160 The court also stated that other alternatives existed that were possibly less restrictive, such as installing filtering software on individual computers. For instance, when installing filtering software on home computers, parents could determine which type of content to block from entering the home computers.161 Finally, the court stated that adult users could be deterred from accessing Web sites if they had to provide a credit c number or other form of identification. ard 162 155 Id. at 252. 156 Id. at 252-53. 157 Id. at 257. 158 Id. at 256. 159 Id. at 254. 160 Id. at 261. 161 Id. at 265. 162 Id. at 257-60. 222

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Round 6: U.S. Supreme Court In its second ruling on the Ch ild Online Protection Act, a divided Supreme Court in 2004 upheld the Third Circuits order that prohibi ted the government from enforcing the COPA,163 although on narrower grounds.164 In upholding the decision of the Third Circuit, the U.S. Supreme Court, on a 5-4 vote,165 affirmed the district courts decision to grant the preliminary injunction for the same reason the district court itself had state dthat there are less restrictive alternatives than the COPA.166 The Supreme Court said it did not need to address the Third Circuits other arguments on the terminology used in the statute,167 such as the definitions of harmful to minors, as a whole and commercial purposes.168 The Supreme Court remanded the case to the Federal District Court for the East ern District of Pennsylva nia for trial, asking the lower court to determine if filters would work as well as, and be less restrictive than, the COPA.169 The Supreme Court said that filtering soft ware installed on home computers would limit access to online pornography posted anywhere on the Internet, not just pornography posted on commercial Web sites in the United States.170 The justices did not declare the COPA 163 Ashcroft v. ACLU, 542 U.S. 656, 673 (2004). 164 Id. at 665. 165 Justice Anthony Kennedy authored the majority opinion and was joined by justices John Paul Stevens, David Souter, Clarence Thomas and Ruth Bader Ginsburg. Chief Justice William Rehnquist and justices Antonin Scalia, Stephen Breyer, and Sandra Day OConnor dissent ed, arguing that the COPA was constitutional. 166 The Third Circuit also stated that the COPA did not use the least restrictive means because minors could access online material considered harmful to minors by using their parents credit cards or viewing foreign Web sites. See ACLU v. Ashcroft 322 F.3d 240, 261(2003). 167 Ashcroft v. ACLU, 542 U.S. at 665. 168 ACLU v. Ashcroft, 322 F.3d at 251-61. 169 Ashcroft v. ACLU, 542 U.S. at 656. 170 Id. at 667-69. 223

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unconstitutional, but said that the Third Circuit was correct in concluding the district court had not abused its discretion in gr anting a preliminary injunction.171 Justice Anthony Kennedy, writing for the majority, said, [T]he Government has not s hown that the less restrictive alternatives proposed by responde nts should be disregarded. Those alternatives, indeed, may be more effective than the provisions of COPA.172 The Court listed three alternatives that mi ght be less restrictive than the COPA: Two statutes Congress had passed af ter the district courts 1999 decision on the COPA and the implementation of user-based filtering software.173 The first statute, enacted in 2002, created a new kid-friendly dot kids leve l on the Internet that would contain only content deemed appropriate to minors.174 The second statute, enacted in 2003, prohibited the use of misleading domain names on the Internet.175 Justice Kennedy only briefly a ddressed those two statutes, stating that they might qualify as le ss restrictive altern atives to COPA.176 171 Id. at 673. 172 Id. 173 Id. at 666-73. 174 Id. at 672. In 2002, Congress enacted the child-friendly, second-level Internet domain in the United States. Congress mandated that the National Telecommunications and Information Administration (NTIA) operate and maintain the new domain, which would provide access only to material that is suitable to minors and not harmful to minors. See 47 USC 941. 175 Ashcroft v. ACLU, 542 U.S. at 672. In 2003, Congress enacted 18 USC 2252B, which criminalizes the knowing use of a domain name on the Internet that would deceive anyone into vi ewing obscene material and deceive a minor into viewing material that is harmful to minors. The phrase harmful to minors is defined as "any communication, consisting of nudity, sex, or excretion, that taken as a whole and with reference to its context (1) predominantly appeals to a prurient interest of minors; (2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable ma terial for minors; and (3) lacks serious literary, artistic, political, or scientific value for minors. Those found guilty co uld be fined or imprisoned for up to ten years or both. 176 Ashcroft v. ACLU, 542 U.S. at 672. 224

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Justice Kennedy spent more time addressing the third alternative suggested by the district courtfiltering software that individual computer users coul d install on their own computers.177 In discussing filtering, Justice Kennedy wrote that the Government failed to introduce specific evidence proving that existing tech nologies are less effective than the restricti ons in COPA.178 The majority said that filters were less restrictive than the COPA179 and may be more effective for several reasons. First, filters can block por nography posted on any Web site from anywhere in the world, whereas the COPA applies only to sexually explicit cont ent posted to commercial Web sites from within the United States.180 Second, minors can circumvent the COPAs verification systems (for example, by using their own credit cards), whereas filtering software could block such access. Third, filters can block content from all areas of the Internet, su ch as e-mail, and not just the World Wide Web.181 The Supreme Court acknowledged that filteri ng software contained flaws, stating that filters failed to block some Web sites containing ma terial that is harmful to minors, and, at the same time, prohibited access to other Web sites that are not harmful to minors.182 No evidence was submitted to the district court in 1999 on the pe rcentage of time that the filtering software underblocked inappropriate content or overblock ed appropriate content, Justice Kennedy said.183 177 Id. at 666-67. 178 Id at 668. 179 Id. at 667. 180 Id. at 667-68. 181 Id 182 Id. at 668-69. 183 Id. (citing ACLU v. Reno, 31 F.Supp. 2d at 492). The district court wrote, It appears undisputed that blocking and filtering technology is not perfect in that it is possible that some Web sites that may be deemed inappropriate for minors may not be blocked while some Web sites that are not inappropriate for minors may be blocked. In 225

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In remanding the case to the Federal Distri ct Court for the Eastern District of Pennsylvania, the Supreme Court said substantial factual disputes remain,184 and the factual record does not reflect current Internet technolog y because of the time lapse since the district court evaluated filt ering technology in 1999.185 In affirming the preliminary injunction and remanding the case to the district court for trial, the justices said both pa rties would be able to update the factual record, includi ng advances in filtering technology.186 In addition, the district court would be able to decide the case in light of the two other statutes passed by Congress.187 However, the Court concluded, On a final point, it is important to no te that this opinion does not hold that Congress is incapable of enacting any regulation of the Internet designed to prevent minors from gaining access to harmful materials . This opinion does not foreclose the District Court from concluding, upon a proper showing by the Government that meets the Government's constitutional burden as defined in th is opinion, that COPA is the least restrictive alternative availabl e to accomplish Congress' goal.188 In a concurring opinion, Justice John Paul Stevens, joined by Justice Ruth Bader Ginsburg, said that the community standards provision of the COPA wa s not the statutes only constitutional defect. He said that user-based controls, such as filtering software, would better addition, a minor's access to the Web is not restricted if she accesses the Web from an unblocked computer or through another ISP. It is possible that a computer-savvy minor with some patience would be able to defeat the blocking device. No evidence was presented to the Court as to the percentage of time that blocking and filtering technology is overor underinclusive. 31 F.Supp 2d at 492 (1999). 184 Ashcroft v. ACLU, 542 U.S. 656, 671 (2004). 185 Id. 186 Id. at 671-72. 187 Id. at 672. One statute created a minors-safe dot-Kids domain, and the other prohibited the misleading use of domain names. Id. 188 Id. at 672-73. 226

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serve the congressional inte rest of protecting minors fr om harmful online content.189 Stevens said that criminal prosecutions are an inapprop riate means to regulate obscenity because the line between offensive content and ino ffensive content is too blurred.190 The four dissenting justices, in two different opinions, said the COPA was constitutional. Justice Stephen Breyer, joined by Chief Justice William Rehnquist and Justice Sandra Day OConnor, wrote that the Court was wrong in co ncluding that Congress could have found a less restrictive way to accomplish the government objective of protecting children from online commercial pornography.191 He also said that the COPA places some burdens on protected speech, but that burden is no more than modest.192 Breyer argued that the use of filtering software is part of the status quo and the backdrop against which Congress enacted [the CO PA]. Despite the ava ilability of filtering software at the time Congress passed the COPA in 1998, children still encountered harmful material on the Internet, Breyer said.193 Filtering software was inadequate for four reasons, according to Breyer. First, Internet filters a llowed some pornographic material through. Second, filtering software costs money. Third, parents had to configure the filter to determine what access their children wouldand would nothave to the Web. Fourth, filter ing software lacks precision [and therefore] blocks a great deal of material that is valuable, Breyer said.194 189 Id. at 674 (Stevens, J., concurring). 190 In discussing criminal prosecutions for obscenity, Stevens did not state that he was referring to online content only. Id. 191 Id. at 677 (Breyer, J., dissenting). 192 Id. at 677-78. 193 Id. at 684. 194 Id. at 684-85. 227

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In a separate dissent, Justice Antonin Scalia said that he agreed with Justice Breyers conclusion that the COPA was constitutional, but disagreed that the COPA should be subject to strict scrutiny for two reasons. First, Justice S calia wrote that the COPA applied to sexually provocative speech, a type of speech that did not receive full First Amendment protection. Second, Scalia wrote that commercial entities enga ging in the business of t he sordid business of pandering could, consistent wi th the First Amendment, be banned entirely and therefore COPAs lesser restrictions were constitutional.195 Round 7: U.S. District Court for th e Eastern District of Pennsylvania In 2007, the federal district court in Ph iladelphia granted a permanent injunction prohibiting the government from enforc ing the Child Online Protection Act.196 The lower court held that the COPA facially violated the First Amendment,197 which the court also had held when granting the preliminary injunction in 1999.198 Judge Lowell Reed applied the strict scrutiny test, stating that the COPA was content-based.199 He wrote that although the protectio of minors from online pornography was a compel ling government interest, the government failed to show that the COPA was narrowly tailored to meet that interest. n PA was 200 He stated the CO overinclusive in that it prohibited more speech th an necessary and underinclusive in that it would not apply to sexually explicit co ntent originating outside the United States that would be 195 Id. at 676 (Scalia, J., dissenting). 196 Am. Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775, 821 (E.D. Pa. 2007). 197 Id. at 809-10, 821. 198 Id. at 820-21 (citing ACLU v. Reno, 31 F. Supp. 2d 473, 498 (1999)). 199 Id. at 809. 200 Id. at 810-15. 228

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available to minors in the U.S.201 Reed wrote that the COPA wa s overly vague because some of the terms were not clearly defined202 and overbroad because protected speech was prohibited.203 Reed also stated that the affirmative defens es to liability under the COPAsuch as the use of a credit card, debit card, adult access code or adult identification number to verify the user was an adultare not effective measures to verify age.204 He said minors could use parents credit or debit cards with out the parents knowledge,205 and payment card associations that issue credit and debit cards usually prohibit Web site owners from using these cards to verify age.206 Reed said that Internet filters were a bette r alternative to the CO PA because they were widely available, easy to obtai n, and provided free through Intern et Service Providers, such as AOL, and through Vista, Microsofts operating system.207 Moreover, he wrote that filters 201 Id. at 810-11. 202 Id. at 816-19. Judge Reed said the terms knowingly and with knowledge of the character of the material and intentionally were not clearly defined. In part, the COPA reads: (a) Requirement to restrict access. (1) Prohibited conduct. Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $ 50,000, imprisoned not more than 6 months, or both. (2) Intentional violations. In addition to the penalties under paragraph (1), whoever intentionally violates such paragraph shall be subject to a fine of not more than $ 50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation. 47 U.S.C. 231(a)(1) & (2). 203 Am. Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775, 819-20 (E.D. Pa. 2007). Judge Reed wrote that although the COPA defined a minor as any person unde r 17 years of age, material that would be patently offensive for an eight-year-old would not be patently offensive for a sixteen-year-old. Similarly, he stated that material that would not have serious literary, artistic, politi cal, or scientific value for a toddler could have such value for a teenager. 204 Id. at 800-05. 205 Id at 801-02. 206 Id at 801. 207 Id. at 793. 229

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installed on the users co mputer could block more content than that which was covered under the COPA. Under the COPA, only commercial Web site operators would have been required to block material originating in the United States.208 In contrast, filters could block both commercial and noncommercial material from th e United States and abroad, with parents determining the type of material to be blocked.209 Reed acknowledged the two main concerns of the effectiveness of filters: 1) Underblocking, which occurs when filters do not block content for which they have been set to block; and 2) overblocking, which occurs when filters mistakenly prevent access to content that the filter was not set to block.210 However, Reed stated that underblocking was the more important concern because the goal of the CO PA was to prevent children from accessing sexually explicit online material deemed harmful to them.211 He stated that filtering technology was continuing to improve and many filtering products blocked 90% of sexually explicit content.212 Reed concluded that the gover nment had failed to show that filters are not at least as effective as COPA at protecting minors from material on the Web.213 Conclusion In 1997, the Supreme Court declared the Commu nications Decency Act, Congress first attempt at regulating Internet content, to be unconstitutional.214 Then in 2004, after hearing 208 See 47 U.S.C. 231(a)(1). 209 Am. Civil Liberties Union v. Gonzales, 478 F. Supp. 2d at 794-95. 210 Id. 211 Id. at 794. 212 Id. at 794-97. 213 Id. at 814. 214 Reno v. ACLU, 521 U.S. 844 (1997). 230

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231 arguments on the Child Online Protection Act a second time,215 the Supreme Court remanded the case to a lower federal court for further analysis while uphol ding the preliminary injunction against its enforcement.216 In 2007, the U.S. District Cour t for the Eastern District of Pennsylvania issued a permanent injunction ag ainst the enforcement of the Child Online Protection Act, stating the COPA violated the First Amendment because it was not narrowly tailored, was not the least restri ctive way of protecting minors from material deemed harmful, and was both overbroad and unconstitutionally vague.217 However, in 2003, a year before remanding the COPA to the lowe r court, the Supreme Court uphe ld the Childrens Internet Protection Act, passed in 2000, a law that manda tes the installation of filtering technology in public libraries and most schools that accept federal funding for technology.218 215 The COPA was Congress second attempt at regulating online content. 216 Ashcroft v. ACLU, 542 U.S. 656, 668, 673 (2004). 217 Am. Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775, 821 (E.D. Pa. 2007). 218 United States v. Am. Library Ass'n, 539 U.S. 194 (2003).

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CHAPTER 6 THE LEGISLATIVE HISTORY OF THE CHILDRENS INTERNET PROTECTION ACT Introduction Both the Senate and House were concer ned with the availability of online pornography when they first began drafting In ternet filtering bills in 1998. The Internet filtering bills and amendments introduced from 1998 through 2000 focused on protecting minors from accessing sexually explicit online content in public libraries and schools. According to a 1998 Senate Commerce Committee report, children not looking for online pornography could inadvertently find pornography Web sites by typing innocuous words into a search engine, such as teen, nurse or cheerleader.1 In a 1998 House hearing, Rep. Ernest Istook stated that Congre ss goal was to protect children from online pornography.2A 1999 Senate Commerce Committee report stated that pornography could easily be accessed on the Internet, both intentionally and unintentionally,3 and legislation was needed to pr otect Americas children from exposure to obscene material, child pornography, or other material deemed inappropriate for minors.4 The bills and amendments in the 19 98-2000 period did not specify software solutions, but rather used terms such as systems, which would incorporate both 1 Internet Filtering Systems, Report of the Senate Comm ittee on Commerce, Science and Transportation on S.1619, S. REP. NO. 105-226 (2d Sess. 1998), at 2. See also Legislative Proposals to Protect Children from Inappropriate Materials on the Internet, Hearing before the Subcomm. on Telecomm., Trade, and Consumer Protect of the Comm. on Commerce 105th Cong. 119 (2d Sess., Sept. 11, 1998) at 20 (statement of Rep. Ernest Istook). 2 Legislative Proposals to Protect Children from Inappropriate Materials on the Internet, Hearing before the Subcomm. on Telecomm., Trade, and Consumer Protect of the Comm. on Commerce 105th Cong. 119 (2d Sess., Sept. 11, 1998) at 20 (statement of Rep. Ernest Istook). 3 Childrens Internet Protection Act, S. REP. NO. 106-141 (1st Sess., Aug. 5, 1999), at 2. 4 Id. at 1. 232

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software-based systems and non-software-based approaches yet to be developed to block or filter sexually explicit or pornogra phic content deemed harmful to minors.5 The selection (of a system) is not intended to be limited to software-based systems, but it is intended to encompass all the technologies av ailable now and as technology develops, a 1998 Senate Commerce Committee report stated.6 All of the bills stipulated that local officials, such as librarians, school boards or school officials, w ould have selected the filtering technology and would have determined what content was inappropriate for minors or harmful to minors.7 Four of the bills or amendments contained a disabling provision, with three applying to minors8 and one applying to adults.9 The Childrens 5 The Senate Commerce Committee stated that blocking software is distinguishable from filtering software. Blocking software prevents access to predetermined Web sites whose URLs, or online addresses, are programmed into the software, whereas filtering software sc reens sites based on keywords and rating systems. Childrens Internet Protection Act, S. REP. NO. 106-141 (Aug. 5, 1999), at 5. However, members of Congressional committees and witnesses testifying before the committees often used the terms filtering and blocking interchangeably. For a discussion of Internet filtering and blocking technology, see Chapter 3. 6 Internet Filtering Systems, Report of the Senate Comm ittee on Commerce, Science and Transportation on S.1619, S. REP. NO. 105-226 (2d Sess. 1998), at 10. 7 For a discussion of the bills, see infra pp. 241-282. 8 Rep. Ernest Istooks three filtering proposalstwo bills and one amendmentonly applied to minors, and therefore the disabling provision pertained to minors only. His proposals would have allowed the filtering technology to be temporarily disabled to allow a minor to access content that was not unprotected by the Constitution, as long as the minor was under the direct supervision of an adult. See Title VI, Child Protection Act of 1998, Depts. of Labor, Health & Human Services, and Educ., and Related Agencies Appropriations Act, [FY]1999, H.R.4274, 105th Cong. (2d Sess. 1998); H.R. 2560(1)(a)(2), 106th Cong. (1st Sess. 1999); and H.R. 4545, 106th Cong. (2d Sess. 2000). 9 Rep. Charles Chip Pickerings filtering bill included a disabling provision for adults only. When adults in libraries and schools were using computers connected to the Internet, an administrator, supervisor, or other authority could disable the filtering tech nology to enable unfiltered access for bona fide research or other lawful purpose. See Childrens Internet Protection Act, H.R. 4600, 106th Cong. (2d Sess. 2000). 233

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Internet Protection Act, the enacted legi slation, included a disabling provision for adults.10 Congress had previously enacted the Communications Decency Act11 and the Child Online Protection Act12 in an attempt to protect minors fr om online pornography. Both acts were struck down by the courts.13 In 2000, Congress passed the Children s Internet Protection Act and Neighborhood Childrens Internet Protection Act as amendments to a ma jor appropriations bill.14 The enacted version of the CIPA and NCIPA, wh ich was based on two bills the Senate did not pass in 1999,15 prohibited public libraries and school s from receiving funding through Universal Service and the Library Services and Technology Act unless they im plemented an Internet safety policy for minors16 and installed Intern et filtering technology.17 Universal Service, commonly 10 See Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 47 U.S.C. 254(h)(5)(D) and 47 U.S.C. 254(h)(6)(D)). For a discussion of the enacted CIPA, see infra notes 268-290 and accompanying text. 11 See Commcns Decency Act of 1996, Pub. L. No. 104-104, 551; 110 Stat. 56, 133-39 (1996) (codified at 47 U.S.C. 223). 12 Child Online Protection Act of 1998, Pub. L. No. 105-277, 112 Stat. 2681 (1998) (codified at 47 U.S.C. 231). 13 See Reno v. ACLU, 521 U.S. 844, 885 (1997) (holding that the CDA was unconstitutional) and American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775, 809-10, 821 (E.D. Pa. 2007) (holding that the COPA violated the First Amendment). See Chapter 5 for a discussion of the CDA and COPA and the court cases deciding the statutes. 14 See Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 20 U.S.C. 9134(f) and 47 U.S.C. 254(h)). See also Dept. of Labor, Health & Human Servs, and Educ. Appropriations Act, 2001, H.R. 4577, 106th Cong. (2d Sess. 2000). 15 See Childrens Internet Protection Act, S.97, 106th Cong. (1st Sess. 1999) and the Neighborhood Childrens Internet Protection Act, S.1545, 106th Cong. (1st Sess. 1999). For a discussion of S.97, s ee infra notes 131-176 and accompanying text. For a discussion S.1545, see infra notes 220-227 and accompanying text. 16 20 U.S.C. 9134(f)(1)(A) and (B), 47 U.S.C. 254(h)( 5)(A) and 47 U.S.C. 254(h)(6)(A). The Internet safety policy applies only to minors and not to adults. The safety policy includes monitoring the online activities of minors and the operation of a technology protection measure with respect to any [library or school] computers with Internet access that protects against access through such com puters to visual depictions that are obscene, child pornography, or harmful to minors. The Internet safe ty policy must address minor s access to inappropriate matter on the Internet and measures designed to rest rict minors' access to materials harmful to minors. The Internet safety policy also must address minors safety and security when using e-mail, chat rooms, and other forms of direct communications. The Internet safety polic y also must address minors unauthorized access to the Internet, including hacking, and minors unauthorized use of personal information regarding minors. Libraries 234

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referred to as the E-Rate, a pplies to libraries and schools.18 In the Telecommunications Act of 1996, Congress mandated that the Federal Communi cations Commission use universal service funding to provide libraries and schools with discounted telecommunications equipment and Internet access, as well as in ternal connections (such as netw ork wiring within the library or school).19 Libraries and schools in rural or economically disadvantaged areas are eligible for more funding than libraries and schools in metro politan or more affluent areas. The Library Services and Technology Act (LSTA), which is av ailable only to libraries provides funding for computer equipment and Internet access.20 Once the two filtering amendments were enacted, Congress dropped the title Neighborhood Childrens Internet Prot ection Act and referred to th e filtering legislation as the Childrens Internet Protection Act (CIPA).21 The Childrens Internet Protection Act requires public libraries and schools rece iving E-rate and LSTA funding to do two things: 1) Adopt an and schools must provide reasonable public notice and hold at least one public hearing or meeting to address the Internet safety policy. 47 U.S.C. 254 (l) (1). 17 See Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 20 U.S.C. 9134(f) and 47 U.S.C. 254(h)). 18 Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 47 U.S.C. 254(h)). See also Dept. of Labor, Health & Human Servs., and Educ. Appropriations Act, 2001, H.R. 4577, 106th Cong. (2d Sess. 2000). 19 See 47 U.S.C. 254. See also http://www.fcc.gov/cgb/cons umerfacts/usp_Schools.html (last visited July 20, 2009). 20 See 20 U.S.C. 9134. 21 No reason was given for dropping Neighborhood Childrens Internet Protection Act from the title. However, when Senator Rick Santorum originally introduced the Neigh borhood Childrens Internet Protection Act, S.1545, 106th Cong. (1st Sess. 1999), the bill did not require a blocking or filtering system. The bill would have allowed libraries and schools to implement either a user policy or a bloc king/filtering system. The filtering amendments enacted in 2000 required both the use of a technology protection measure and the implementation of a user policy. Dept. of Labor, Health & Human Servs., & Educ. Appropriations Act, 2001, H.R. 4577, 106th Cong. (2d Sess. 2000). See Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codif ied as amended at 20 U.S.C. 9134(f) and 47 U.S.C. 254 (h)). 235

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Internet safety policy for minors, 22 and 2) enforc[e] a technology protection measure, such as blocking or filtering software, on all computers with Internet access.23 The Internet filtering technology must be insta lled and used to block or filter access by all patrons to visual depictions that are obscene24 or involve child pornography.25 The law also requires that a technology protection measure be used to bloc k or filter access by persons under the age of seventeen to visual depictions that are considered harmful to minors,26 as determined by local libraries and schools.27 The filtering technology must be used on all computers connected to the Internet, even those computers not purchased with E-rate or LSTA funds.28 Adults can request that the filtering software be disabled for bona fide research or other lawful purpose[s].29 Blocking software prevents access to pred etermined Web sites whose URLs, or online addresses, are programmed into the software, wh ereas filtering software screens sites based on keywords and rating systems.30 Congress use of the term technology protection measure, as 22 20 U.S.C. 9134(f)(1)(A), 47 U.S.C. 2 54(h)(5)(A) and 47 U.S.C. 254(h)(6)(A). 23 Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 20 U.S.C. 9134(f) and 47 U.S.C. 254 (h)). From 2000, when Congress passed the legislation, through the present, the only technology measure available has been blocking or filtering software. 24 20 U.S.C. 9134(f)(1) and 47 U.S.C. 254 (h)(5)(B) & (h)(5)(C) and 47 U.S.C. 254 (h)(6)(B) & (h)(6)(C). 25 Id. 26 20 U.S.C. 9134(f)(1)(A), 47 U.S.C. 254(h)(5)(B) and 47 U.S.C. 254(h)(6)(B). See infra notes 268-290 and accompanying text for a discussion of the acts. 27 47 U.S.C. 254 (l)(2). 28 20 U.S.C. 9134 (f)(1)(a) and 47 U.S.C. 254 (h)(5) & (6). 29 Under 47 U.S.C. 254(h)(5)(D) and 47 U.S.C. 254(h)(6)(D), the term lawful purpose is singular, whereas under 20 U.S.C. 9134(f)(3), the term lawful purposes is plural. 30 See Childrens Internet Protection Act, Report of the Senate Committee on Commerce, Science and Transportation on S.97, 106th Cong. (1st Sess. 1999), at 6. See also Chapter 3 of this dissertation for a discussion of filtering and blocking technology. 236

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opposed to blocking or filtering software, seemed to be intentional so as not to prevent the implementation of new technological devices that might be developed later.31 President Bill Clinton signed the CIPA and NCIPA into law on December 21, 2000,32 thirty-four months after the Hous e and Senate had first introduced initial filtering and blocking legislation.33 The federal mandatory filtering law wa s to have become effective on April 20, 2001, but the American Civil Liberties Union (A CLU) and the American Library Association (ALA) independently filed suit to block the implementation of the Childrens Internet Protection Act.34 A federal district court c onsolidated the cases and in 2002 held that the challenged sections of the Childrens Internet Protection Act were unconstitutional,35 a ruling that the U.S. Supreme Court reversed in 2003.36 While the cases were pending before the courts, the Federal Communications Commission issued a fact sheet to clarify the regul ations. The fact sheet stated that public libraries and schools were required to certify that they had their technology policies and online safety policies in place (or that they were in the process of taking the necessary actions of implementing them) before receiving E-rate funding for the following school year.37 31In 1998, in referring to S.1619, the Internet School Filtering Act, the Senate Commerce Committee said that proposed legislation was intended to encompass all the technologies available now and as technology develops. Internet Filtering Systems, Report of the S. Comm. on Commerce, Science & Transportation on S.1619, S. REP. NO. 105-226 (2d Sess. 1998) at 10. 32 Pub. L. No. 106-554. 33 Safe Schools Internet Act of 1998, H.R. 3177, 105th Cong (2d Sess. 1998) and Internet School Filtering Act, S. 1619, 105th Cong. (2d Sess. 1998). 34 Am. Civ. Liberties Union, Library Internet Access is Still Free from Ce nsorship as Law Goes into Effect, ACLU Tells Libraries, Patrons available at http://www.aclu.org/Privacy/Privacy.cfm?ID=7224&c=252 See also Am. Library Assn, CIPA, available at http://www.ala.org/ala/aboutala/govern ance/annualreport/annualreport/annua lreportarch/report2002/freedom.cfm 35 See Am. Library Assn v. United States, 201 F. Supp. 2d 401 (E.D. Pa. 2002). 36 See United States v. Am. Library Assn 539 U.S. 194 (2003), revg Am. Library Assn. v. United States, 201 F. Supp. 2d 401 (E.D. Pa. 2002). 37 FCC Consumer Facts on Childrens Internet Protection Act, Sept. 17, 2003, http://www.fcc.gov/cgb/consumerfacts/cipa.html (last visited July 20, 2009). 237

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The Internet safety policy had to include tec hnology protection measures to prevent access to online images that were obscene, child pornography, or harmful to minors (for those computers used by minors).38 The Internet safety policy also requi red libraries and sc hools to educate minors about appropriate online behavior, including in teracting with othe r people on social networking sites.39 However, libraries and sc hools did not have to comply with the CIPA while the act was being challenged. The Emergence of the Childrens Internet Protection Act The Childrens Internet Protection Act was not Congress first attempt at mandating Internet filtering or blocking sy stems in public libraries and schools in order for libraries and schools to receive federal funding for Internet access. Since 1 998, legislators had introduced twelve bills and amendments to appropriations bills that would have required the nations schools and public library systems40 to install a blocking or filtering system if the schools and libraries received federal technology funding.41 However, none of the filtering bills or amendments passed, with most dying in committee. 38 Id. 39 Id. 40 Public library administrative units or systems number approximately 9,100 and encompass a total of 16,241 buildings, including central and branch locations. S ee Adrienne Chute, Elaine Kroe, Patricia OShea, Maria Polcari & Cynthia Jo Ramsey, Public Libraries in the United States: Fiscal Year 2001 (U.S. Dept. of Education National Center for Education Statistics (2003), available at http://nces.ed.gov/pubs2003/2003399.pdf See also Internet Filtering Systems, Report of the Senate Committee on Commerce, Science and Transportation on S.1619, S. REP. NO. 105-226 (2d Sess. 1998), at 8, stating that there are approximately 9,000 public libraries in the United States. 41 See Internet School Filtering Act, S. 1619, 105th Cong. (2d Sess. 1998); Safe Schools Internet Act of 1998, H.R. 3177, 105th Cong. (2d Sess. 1998); Child Protection Act of 1998 (the Istook Amendment) to FY99 Labor, Health & Human Servs., & Educ. Appropriations Bill, Title VI of H.R.4274, 105th Cong. (2d Sess. 1998); Internet Filtering, Amendment No. 3228 to Departments of Commerce, Justi ce, and State, the Judiciar y, and Related Agencies Appropriations Act, 1999, S. 2260, 105th Cong. (2d Sess. 1998); Safe Schools Internet Act of 1999, H.R. 368, 106th Cong. (1st Sess. 1999); Childrens [sic] Internet Protection Act, S.97, 106th Cong. (1st 1999); Childrens [sic] Internet Protection Act, H.R. 543, 106th Cong. (1st Sess. 1999); Childrens [sic] Internet Protection Act, H.R. 896, 106th Cong. (1st Sess. 1999); Childrens Internet Protectio n Act of 1999, H. Amdt. 212/Title XIV/Sec. 1401 of Juvenile Justice Reform Act of 1999, H.R. 1501, 106th Cong. (1st Sess. 1 999), which is similar to S.97, the Childrens Internet Protection Act; Child Protection Act of 1999, H.R. 2560, 106th Cong. (2d Sess. 1999); Neighborhood Childrens Internet Protection Act, S.1545, 106th Cong. (1st Sess. 1999); the Internet Minors 238

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During 1998 and 1999, as filtering bills were init ially being introduced in both chambers of Congress, the U.S. Senate Commerce Committee held three hearings and issued two reports on Internet indecency and the proposed filtering bills.42 The U.S. House of Representatives Subcommittee on Telecommunications, Trade, a nd Consumer Protection held one hearing on legislative proposals to protect childr en from inappropriate online content.43 The House and Senate did not hold hearings or issue reports in 2000, the year Congress passed the Childrens Internet Protection Act. In the 1998 and 1999 Senate and House committ ee hearings, legislators heard testimony on the capabilities of filtering and blocking software at the time. They were told that, first, software could suggest appropriate material when users type in search terms on the World Wide Web. Second, software could inform or warn users about online content before they saw it.44 Protection & Cyberspace Tech. Act, H.R. 4545, 106th Cong. (2d Sess. 2000); the Childrens Internet Protection Act, H.R. 4600, 106th Cong. (2d Sess. 2000). See also, the E-Rate Policy & Child Protection Act of 1998, H.R. 3442, 105th Cong. (2d Sess. 1998), which would have manda ted a library use policy rather than filtering and which was not enacted into law. See also the provision of Internet filtering or scr eening software, Title XVI, Sec. 1604, of the Violent and Repeat Juvenile Offender Accountability and Rehabilitation Act of 1999, S. 254, 106th Cong. (1st Sess. 1999), which would have required Internet Service Prov iders to offer filtering software to their subscribers, but did not require public libraries and sc hools to install filtering software. The filtering bills are listed above in chronological order by date of introduction in the House or Senate. H.R. 3177 and S. 1619 contain identical wording, as do S.97 and H.R. 543. For an analysis of the bills, see infra pp. 241-283. 42 See Internet Indecency: Hearing Be fore the S. Comm. on Commerce, Science, & Transportation 105th Cong. 910 (2d Sess., Feb. 10, 1998); Internet Filtering Systems, Report of the S. Comm. on Commerce, Science & Transportation on S.1619, S. REP. NO. 105-226 (2d Sess. 1998); S. 97, The Childrens Internet Protection Act, Hearing Before the Comm. on Commerce, Science, & Transportation S. Hrg. 106-603 (1st Sess. 1999); S. 97, The Childrens Internet Protection Act, Hearing Before the Comm. on Commerce, Science, & Transportation S. Hrg. 106-828 (1st Sess., May 20, 1999); Childrens Internet Prot ection Act, Report of the Comm. on Commerce, Science, & Transportation, on S.97, S. REP. NO. 106-141 (1st Sess., Aug. 5, 1999). 43 See Legislative Proposals to Protect Children from Inappropriate Materials on the Internet: Hearing before the Subcomm. on Telecomm., Trade, & Consumer Protection of the Comm. on Commerce 105th Cong. 119 (2d Sess., Sept. 11, 1998). 44 See Internet Indecency: Hearing Before the S. Comm. on Commerce, Science, & Transportation 105th Cong. 910 (2d Sess., Feb. 10, 1998) at 35 (statement of Christine Varney, attorney and chair of the Internet Online Summit). According to the Summits Web site, more than 650 participants representing over 300 organizations came together in December 1997 for th e Internet Online Summit: Focus On Children, which addressed ways to assure that steps are taken to make the Internet online experi ence safe, educational and entertaining for children. http://www.kidsonline.org/oldindex.shtml (last visited July 20, 2009). 239

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Third, software could block access to online content,45 which would be done by preventing access to predetermined Web sites once URLs, or online addresses, were programmed into the software.46 Fourth, software could filter online content,47 which would be done by preventing access to Web sites based on keywords and rating systems.48 The majority of the bills and amendmen ts introduced from 1998 through 2000 would have amended the Communications Act of 1934 by requiring public libraries and schools receiving universal service, or E-rate, funds to install blocking or filtering technologies on computers connected to the Internet to pr event minors from accessing online pornography.49 The bills and amendments contained common terms refe rring to the screening of online content, such as filter, block, tools and devices. Some of the proposals mandate d that only one library computer needed to have a filtering or blocking system in use, while others stipulated that only computers and peripherals purchased with E-rate funds needed to have a filtering or blocking system in use. All of the proposals stipulated that local officials, such as librarians, school boards or school officials, would select the filtering technology and would determine what content was inappropriate for minors or harmful to minors. One bill, which did not pass, would have required only a user policy that would have requ ired libraries and school s to establish a policy with respect to access to material that is inappropriate for children.50 Other proposals 45 Id. (statement of Christine Varney, attorney and chair of the Internet Online Summit). 46 See Childrens Internet Protection Act, Report of the Senate Committee on Comm., Science & Transportation on S.97, SEN. REP. NO. 106-141 (1st Sess., Aug. 5, 1999) at 6. See Chapter 3 of this dissertation for a discussion of filtering and blocking technology. 47 See id. 48 See id. 49 For a discussion of the bills, including the content covered in each bill, see the next section of this chapter. 50 E-Rate Policy and Child Protection Act of 1998, H.R. 3442, 105th Cong. (2d sess. 1998). Rep. Edward Markey, Dem.-Massachusetts, introduced the act, which was co-sponsored by Rep. Thomas Manton, Dem.-New York. The bill did not clarify or elaborate further on the user policy. 240

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including the enacted Childrens Internet Protection Act51required that libraries implement an Internet use policy and install and use a technology protection me asure on all computers with Internet access. The Childrens Internet Protection Act of 2000 was based on three proposals that Senator John McCain, a Republican from Arizona, had introduced from 1998 to 2000.52 Proposed Legislation in 1998 In 1998, the first year that Congress looked into implementing mandatory filtering in public libraries and schools, three proposals were introduced in the Senate and House. One bill was introduced in the Senate, and one bill and one amendment were introduced in the House. The bills and amendment all stipul ated that public libraries and schools that failed to install a filtering or blocking system on computers having Internet access would be ineligible for universal service or E-rate funding.53 Although Congress did not pass the bills or amendment, two nearly identical bill s received considerable attention in the Senate54 and House,55 with neither bill limiting the selection of a f iltering or blocking method to only software. 51 See Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 20 U.S.C. 9134(f) and 47 U.S.C. 254(h)). 52 S.1619, 105th Cong. (2d Sess. 1998); S.97IS, 106th Cong. (1st Sess. 1999); and Childrens Internet Protection Act, S.Amdt. No. 3610 to H.R.4577, Consolidated Appropr iations Act, 2001, 106th Cong. (2d Sess., June 22, 2000). 53 See Internet School Filtering Act, S. 1619, 105th Cong. (2d Sess. 1998); Safe Schools Internet Act of 1998, H.R. 3177, 105th Cong. (2d Sess. 1998); Child Protection Act of 1998 (the Istook Amendment) to FY99 Labor, Health & Human Servs., & Educ. Appropriations Bill, Title VI of H.R.4274, 105th Cong. (2d Sess. 1998); and Internet Filtering, Amendment No. 3228 to Depts. of Commerce, Justice, & State, the Judiciary, and Related Agencies Appropriations Act, 1999, S. 2260, 105th Cong. (2d Sess 1998). Rep. Edward Mark ey (Dem.-Massachusetts) and Thomas Manton (Dem.-New York) introduced the E-Rate Policy and Child Protection Act of 1998, H.R. 3442, 105th Cong. (2d Sess. 1998), but their bill required the es tablishment of user policies for minors using computers connected to the Internet, rather than filtering or blocking technology. 54 See Internet School Filtering Act, S.1619, 105th Cong. (2d Sess. 1998), introduced by Sen. John McCain, RArizona, along with original cosponsors Ernest Hollings, Dem.-South Carolina, Dan Coats, Rep.-Indiana and Patty Murray, Dem.-Washington. Five other cosponsors (three Republicans and two Democrats) were added later. 55 See Safe Schools Internet Act of 1998, H.R. 3177, 105th Cong. (2d Sess. 1998) (introduced by Rep. Bob Franks, Rep.-New Jersey). 241

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In February 1998, Sen. John McCain from Arizona, who became the U.S. presidential candidate for the Republican Party in 2008,56 introduced S.1619, the In ternet School Filtering Act,57 his first of two major Internet filtering bills in the Senate.58 Three cosponsorsErnest Hollings, a Democrat from South Carolina; Dan Coats, a Republican from Indiana; and Patty Murray, a Democrat from Washingtonjoined him on Feb. 9, 1998 when he introduced the bill.59 S.1619, the Internet School Filtering Act, would have amended the Communications Act of 1934, 47 U.S.C. 254, by prohibiting universal serv ice, or E-rate, funding to public libraries and schools unless the library or school certified that it employ[ed] a system on one or more of its computers with Internet access that would filter or block matter deemed to be inappropriate for minors.60 The bill did not define ina ppropriate for minors. McCains Internet filtering bill, S.1619, emphasized local control, meaning that 1) local libraries and schools would determine which content is inapprop riate for minors, and 2) the U.S. government would not be allowed to establish the criteria, review the determination or consider such criteria in awarding funds.61 56 Senator McCain lost the presid ential race to Barack Obama. 57 See Internet School Filtering Act, S.1619, 105th Cong. (2d Sess. 1998). 58 Sen. McCain introduced his second Internet filteri ng bill, S.97, in 1999. For a discussion of S.97, see infra notes 131-176 and accompanying text. 59 Six other cosponsors, four Republicans and two Democrat s, later added their names as cosponsors of the bill: Spencer Abraham, Rep.-Michigan; Kay Bailey Hutchison, Rep.-Texas; Ted Stevens, Rep.-Alaska; Christopher Kit Bond, Rep.-Missouri; Herb Kohl, Dem.-Wisco nsin; and Daniel Inouye, Dem.-Hawaii. 60 S.1619 a(1) & (3), 105th Cong. (2d Sess. 1998). In intr oducing his bill, Sen. McCain explained that the E-rate provides federal subsidies to libraries an d schools for discount ed Internet access. See 144 CONG REC. S8161 at S8162 (July 15, 1998) (statement of Sen. McCain). 61 See S.1619 a(1)(4), 105th Cong. (2d Sess. 1998). 242

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In introducing S.1619, the Internet School Filter ing Act, McCain stated that while some minors actively sought out pornographic Web site s, many minors unintentionally came across such Web sites. 62 The prevention lies, not in censoring wh at goes onto the Internet, but rather in filtering what comes out of it onto the comput ers our children use outside the home, McCai said. n or 63 Although parental supervision is more eff ective than government assistance or industry self-regulation, according to McCain, parental supe rvision is not possible when children use the Internet while they are away from home, in schools and libraries.64 The American Civil Liberties Union and American Library Association consistently opposed mandatory filtering bi lls. In testimony during the Senate Commerce Committee hearing on S.1619, the Internet Sc hool Filtering Act, in 1998, the ACLU recommended that libraries and schools esta blish content-neutral rules about when and how young people should use the Internet a nd provide educational seminars on the responsible use of the Internet.65 The ACLU stated that S.1619 purports to leave to the school board or librarian the authority to determine what matter is inappropriate f minors, (but) they are virtually pow erless to make this determination.66 The ACLU said that a software vendors list of acceptable sites is proprietary and therefore not available to customers. In addition, vendors would decide which speech is acceptable and unacceptable, with employees using s ubjective judgment in making content determinations. The ACLU recommended that libraries and schools establish content62 See 144 CONG. REC. S517 at S519 (Feb. 9, 1998) (statement of Sen. John McCain). 63 Id. 64 Id. 65 Internet Indecency: Hearing Before the S. Comm. on Commerce, Science, & Transportation 105th Cong. 910 (Feb. 10, 1998) at 67 (statement of American Civil Liberties Union). 66 Id. at 65 (statement of American Civil Liberties Union, referring to S.1619, the Internet School Filtering Act). 243

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neutral rules about when and how young peopl e should use the Inte rnet and provide educational seminars on the res ponsible use of the Internet.67 The American Library Association testif ied that filtering or blocking software deprives patrons of access to valuable and constitutionally-protected information. The ALA said that software fails to provide pro tection from other mate rials that others may find objectionable, however defined.68 However, the Senate Commerce Committee, in its 1998 report on Internet filtering systems, opposed the implementation of a user policy unless blocking or filtering technology also was mandated. The committee stated that a sta ndard use policy that w ould be comprised of a code of conduct for appropriate online behavior would not be effectiv e because it relied on minors pledging not to seek harmful materials on the Internet. Such a policy statement also would not protect minors from inadverten t or accidental e xposure to pornography.69 The Commerce Committee stated that filtering or blocking technology was needed because parents would not be able to supervise th eir children in libraries and schools.70 The June 1998 Senate Commerce Committ ees report to accompany S.1619, the Internet School Filtering Act, stated th at the online pornography and graphic violence posed a danger and is particularly acute for the nations children, who are unable to guard themselves with the sophistication of an adult.71 The report acknowledged that 67 Id. at 67 (statement of American Civil Liberties Union). 68 Id. at 62 (statement of Amer ican Library Association). 69 Internet Filtering Systems, S. REP. NO. 105-226 (2d Sess., June 25, 1998) at 7. 70 Id. at 3. 71 Id. at 1. 244

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although filtering or blocking t echnologies are not perfect, they provide a reasonable means of protecting children from the major ity of harmful material on the Internet.72 The Senate referred the McCain bill to th e Senate Committee on Commerce, Science, and Transportation, which was chaired by the senator. The Committee, in its June 1998 report to the Senate, recommended passage of the bill, stating that the purpose of the bill was to protect children from exposure to harmful material wh ile accessing the Internet from a school or library.73 The report stated that mandating filtering or blocking mechanisms, in exchange for receipt of universal federal funds for t echnology in public libraries and schools, is constitutional.74 According to the report, Congress may impose r easonable conditions on the receipt of federal funds or subsid ies as part of its spending power as long as the conditions are stated clearly and unambiguously.75 The report stated that the use of filtering or blocking systems was constitutional because the installati on of those systems is r easonably related to the purpose of providing schools and libraries with Internet services to fulfill their education mission.76 Moreover, libraries could con tinue to provide unfiltered acce ss to the Internet if they 72 Id. at 3 (June 25, 1998). The committee re ported that filtering software prohib its access to online content based on key words, whereas blocking software prohibits access to online content based on a list of sites previously found to be inappropriate. Id. For a discussion of filtering and blocking technology, see Chapter 3. 73 Id. at 1. 74 Id. at 4 (citing two Supreme Court decisions that examined the relationship between the First Amendment and the governments right to subsidize speech). See Rust v. Sullivan, 500 U.S. 173 (1991), in which the Supreme Court upheld a government ban that prohibited federally funded clinics from advocating, promoting or advising on abortion. The report noted that the Supreme Court, in Rust, stated that the government is entitled to say what it wishes when the government spends public funds to promote a specific policy. See also Rosenberger v. Rector, 515 U.S. 819 (1995), in which the Supreme Court held that a public universitys policy prohibiting the reimbursement of a Christian student newspapers expenses was unconstitutiona l. The report stated that the Supreme Court affirmed that while the government may make content-based decisions when the government is the speaker, in this case the university was not the speaker, but rather distributed funds to encourage diverse viewpoints from private speakers, including the religious newspaper and other student publications. 75 Id. 76 Id. 245

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did so with their own funds or through other types of government programs other than the Erate.77 The Senate Commerce Committee report consider ed the public library a public forum for the purpose of acquiring knowledge,78 stating that laws restricti ng access to such information must pass the strict scrutiny test.79 To pass the strict scrutiny te st, a regulation must promote a compelling government interest and must be na rrowly tailored to fu rther that interest.80 The report said that the Internet Sc hool Filtering Act would pass such a test because the courts have found protection of minors to be a compelling go vernment interest and the bill was designed to shield children from harmful materials on the Internet.81 According to the report, the bill was narrowly tailored and the leas t restrictive means of achievi ng the governments compelling interest because libra riesnot the governmentwould determine matter deemed to be inappropriate for minors.82 The report also stated that libra ry standard use policies would not protect children from inadvertently or accidentally accessing harmful materials on the 77 Id. at 5. 78 Id. at 6. When stating that a public library is a pub lic forum, the Senate Comme rce Committee did not specify whether it meant a traditional public forum or a designated public forum. The Committee also did not discuss public forum doctrine in relation to Internet access. However, in the context of the report, the Senate Commerce Committee indicated that a public library was a designated public foru m. In labeling the public library a public forum for the purpose of knowledge acquisition, the report cited Kreimer v. Bureau of Police for Morristown, 958 F.2d 1242 (1992), the most recent on-point case at that time. In the holding of Kreimer the court found that the local government in Morristown and Morris Township, New Jersey, had made the library a limited public forum for the right to receive information, but not for personal expression, such as making speeches. Kreimer, 958 F.2d at 125663). The court stated, The recognition of a constitu tional right protecting public acce ss to information and ideas is simply the threshold of our analysis. Kreimer, 958 F.2d at 1255. For further discussion of the application of public forum doctrine to public libraries, see supra Chapter 2, pp. 56-101. For a discussion of court cases dealing with Internet access within public libraries, see Chapter 2, pp. 62-68. For a discussion of the court cases on the Childrens Internet Protection Act, see Chapter 7. 79 Internet Filtering Systems, S. REP. NO. 105-226 (2d Sess., June 25, 1998) at 6. 80 See Sable v. FCC, 492 U.S. 115, 126 (1989). 81 Internet Filtering Systems, S. REP. NO. 105-226 (2d Sess., June 25, 1998) at 6. 82 Id. at 7. 246

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Internet.83 Finally, the report stated that adults coul d still access constitutionally protected speech in the public library because the bill required th at a filtering or blocking system need only be installed on one computer with In ternet access. If a small branch library had only one computer with Internet access, the library would need to install a filtering or blocking system on that computer in order for the library to receive Erate funds. However, th e bill would allow the librarian to turn the system off when a ppropriate when adults used the computer,84 although the report did not define or pr ovide examples of appropriate. Senator Joe Lieberman, a Democrat from Connecticut who had opposed the Communications Decency Act,85 stated that he supported McCains filtering bill even though he was extremely reluctant to re sort to government restricti ons on speech or any forms of expression and much pr efer[s] self-regulation.86 Lieberman said he supported the bill because the Internet industry did not seem able to regulate itself.87 S. 1619, the Internet School Filtering Act, passed in the Senate. However, no action was taken on the bill in the House before the conclusi on of the legislative session. In July 1998, the Senate Appropriations Committee approved an appropriations bill88 with an amendment by Sen. John McCain that contained the text of the bill that McCain had previously introduced as S. 83 Id. at 7. The Committee wrote that children could be traumatized by exposure to hard core pornography using innocuous search terms, such as cheerleader or nurse. Id. 84 Id. at 6-7. 85 Congress passed the Communications Decency Act as part of the Telecommunications Act of 1996. The CDA was Congress first attempt to regulate speech on the Internet and criminalized the online transmission of indecent or patently offensive material to minors, defined as those under the age of eighteen. The Supreme Court held that the CDA was unconstitutional. Reno v. ACLU, 521 U.S. 844, 885 (1997). See Chapter 5 for a discussion of the Communications Decency Act. 86 144 CONG. REC. S 8161 at 8162 (July 15, 1998) (statement of Sen. Joe Lieberman). 87 Id. at 8163 (statement of Sen. Joe Lieberman). 88 Appropriations for Commerce, Justice, State, & Judiciary FY 1999, S.2260, 105th Cong. (2d Sess. 1998). 247

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1619, the Internet School Filtering Act.89 After the committee voted to approve the filtering amendment, Sen. Conrad Burns, a Republican from Montana, stated his opposition to the bill: I want to make it very clear that I remain steadfastly opposed to big government mandates on the filtering issue and I will work closely with my colleagues as S. 2260 heads to conference to perfect the bill to reflect these concerns. I continue to believe that local communities acting through th eir school and library boards, rather than software programs that are at best questionable or the federal government, are in the best position to make decisions on this critical issue.90 Although the Senate passed S.2260, the Fiscal Year 1999 appropriations bill for Commerce, Justice, State, and Judiciary, with the text of S.1619 attached as an amendment,91 the House did not take action on the appropriations bill. The following year, Senator McCain reintroduced the Safe Schools Internet Act as S.9 7, the Childrens [sic] Internet Protection Act, although the wording of S.97 changed over time, as discussed in the sect ion below on filtering proposals introduced in 1999.92 In early 1998, during the same period that McCain had introduced S.1619, the Internet School Filtering Act,93 a parallel filtering bill was working its way through the House. Rep. Bob Franks, a Republican from New Jersey, introduced H.R. 3177, the Safe Schools Internet Act of 1998.94 Franks bill was identical to the McCain b ill, mandating that before public libraries and schools could receive universal service assistance each library or school would have to certify 89 Internet School Filtering Act, S. 1619, 105th Cong. (2d Sess. 1998). 90 144 CONG. REC. S 8611 at S 8614 (July 21, 1998) (statement of Sen. Conrad Burns). 91 Appropriations for Commerce, Justice, State, & Judiciary FY 1999, S.2260, 105th Cong. (2d Sess. 1998). 92 Childrens [sic] Internet Protection Act, S. 97, 106th Cong. (1st Sess. 1999). See infra notes 131-176 and accompanying text for a discussion of S.97 and the changes in wording. 93 S.1619, 105th Cong. (2d Sess. 1998). 94 H.R. 3177 (a)(1), 105th Cong. (2d Sess. 1998) (introduced by Representative Bob Franks). 248

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that it employs a system to filter or block matter deemed to be inappropriate for minors on at least one computer with Internet access.95 Franks bill also stipulated that local libraries and schools would determine which content is ina ppropriate for minors and the U.S. government would not establish, review or consider the local criteria in making its funding decisions,96 just as McCains bill had. In a September 1998 House hearing on H.R. 3177 and other legislative proposals to protect minors from inappropriate online conten t, Mary Anne Layden, a clinical psychologist, stated that pornography distorts childrens and adults views about intimacy and sex by spread(ing) the myth that male sexuality is viciously narcissistic, predatory and out of control.97 Peter Nickerson, the president of a filtering software company, stated that blocking and filtering software could be placed on serv ers, as well as on individual computers.98 He also said filtering and blocking programs are fully customizable,99 with systems to be usable based on 95 H.R. 3177, 105th Cong. (2d Sess. 1998). 96 H.R. 3177 (4), 105th Cong. (2d Sess. 1998). 97 Legislative Proposals to Protect Children from Inappropriate Materials on the Internet: Hearing before the Subcomm. on Telecomm., Trade, & Consumer Protection of the Comm. on Commerce 105th Cong. 119 (2d Sess., Sept. 11, 1998) at 55 (statement of Mary Ann Layden). For example, she told the co mmittee about a twelve-year-old boy who viewed his fathers pornographic magazines and then began having sex with his eight-year-old sister. The boy continued having sex with his sister for ten years. Layden said that pornography mis-educated him (the boy) about sexuality and gave him a pathological view of intimacy. Id. 98 Id. at 61 (statement of Peter Nickerson, CEO of N2H2). Ni ckerson said that Internet filters can be placed on a single server, which controls information to individual computers throughout a network. In schools, filters can be placed on servers in an individual school or in a school district or in a netw ork of school districts. Id. at 61. Similarly, filters can be placed on servers in an individual lib rary or in the library districts headquarters if all library computers run through one or more cen tral servers in a main building. See American Library Association, CIPA and Libraries: From the Field, available at http://www.ala.org/ala/aboutala/offices/wo/woissues/c ivilliberties/cipaweb/adviceresources/fromthefield.cfm For a discussion of filtering technology, see Chapter 3. 99 Legislative Proposals to Protect Children from Inappropriate Materials on the Internet: Hearing before the Subcomm. on Telecomm., Trade, & Consumer Protection of the Comm. on Commerce, 105th Cong. 119 (2d Sess., Sept. 11, 1998) at 64 (statement of Peter Nickerson, CEO of N2H2). 249

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a communitys own standards.100 Public library and school admi nistrators could choose which categories of content to block, Nickerson stated.101 For example, a library or school could prevent minors from accessing Web sites contai ning pornography, drug use, graphic violence and/or bomb-making instructions.102 Librarians and school administra tors could add or subtract Web sites from the list. In addition to blocking and filtering Web sites, libra ries and schools could also block e-mail and chat rooms, Nickerson said. The software also could allow adults unblocked and unfiltered access to the Internet through the use of a password.103 While both legal and illegal pornography would be blocked or filtered, cour ts have held that adult entert ainment can be zoned out of certain parts of the community in order to protec t other legitimate (but competing) interests, such as protecting children, Nickerson said.104 Agnes Griffen, an American Library Associat ion representative, questioned whether any blocking or filtering technology could keep up with monitoring content of more than 300 million Web pages since the number of We b pages was exponentially increasing.105 Jerry Berman, the executive director for the Center of Democracy and Technology, stated that while many filtering 100 Id. at 62. 101 Id. 102 Id. at 64. 103 Id. 104 Id. at 65. Nickerson did not cite the zoning cases in hi s testimony. In contrast to Nickersons testimony, the American Civil Liberties Union, in an earlier hearing be fore the Senate Commerce Committee, had testified that libraries and schools would not be able to set their own local parameters to filter content becau se private vendors design filtering software. See Internet Indecency: Hearing Before th e S. Comm. on Commerce, Science, & Transportation, 105th Cong. 910 (Feb. 10, 1998) at 65 (statement of American Civil Liberties Union, referring to S.1619, the Internet School Filtering Act). 105 Legislative Proposals to Protect Children from Inappropriate Materials on the Internet: Hearing before the Subcomm. on Telecomm., Trade, & Consumer Protection of the Comm. on Commerce 105th Cong. 119 (2d Sess., Sept. 11, 1998) at 71 (statement of Agnes Griffen, member of the ALA Committee on Legislation and Director of the Tucson-Pima Public Library in Arizona). 250

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and blocking products were av ailable in 1998, no one had conduc ted an empirical study on the effectiveness of filtering technology.106 Berman also stated that the Safe Schools Internet Acts requirements to adopt filtering technology will us urp local communities ab ility to set standards that reflect their values.107 Because companies do not disclose their standards, libraries and schools would not be able to determine if comme rcial filters met their needs, Berman said.108 Griffen, the ALA representative, stated that local libraries are best able to decide on whether filtering technology, a user policy or anot her method would be the most effective option to prevent minors from accessing online pornography.109 According to Griffen, quick fixes, such as mandatory filtering, fail to teach children how to best use the Internet.110 Using blocking or filtering technology w ould prevent minors from deve loping critical viewing and information skills that will help them make good judgments about the information they encounter, she said.111 Franks bill, H.R. 3177, was referred to, a nd died in, the House Commerce Committee. Rep. Ernest Istook, a Republican from Oklaho ma, introduced the third and final filtering proposal in 1998, which was attached as an amen dment to a major House appropriations bill. The Child Protection Act of 1998 would have requ ired schools and public libraries receiving 106 Id. at 82 (statement of Jerry Berman, Executive Director for the Center for Democracy and Technology). According to its Web site, the CDT is a non-profit public policy organization dedicated to promoting the democratic potential of today's open, decentralized global Internet. http://cdt.org/mission/ (last visited July 20, 2009). For a discussion of filtering studies, see Chapter 3. 107 Legislative Proposals to Protect Children from Inappropriate Materials on the Internet: Hearing before the Subcomm. on Telecomm., Trade, & Consumer Protection of the Comm. on Commerce 105th Cong. 119 (2d Sess., Sept. 11, 1998) at 40 (statement of Jerry Berman, referring to S.1619, the Internet School Filtering Act). 108 Id. 109 Id. at 71 (statement of Agnes Griffen). 110 Id. at 74. 111 Id. 251

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federal funds for acquiring or operating any comput ers connected to the Internet and accessible to minors to do two things: 1) to install on computers software that was adequately designed to prevent minors from accessing obscene informati on; and 2) to ensure that the software is operational whenever minors used the computer s. The software program could be temporarily interrupted to allow minors to access informati on that was not obscene or otherwise unprotected by the Constitution, as long as the minor was under the direct supervision of an adult.112 In contrast to the McCains In ternet School Filt ering Act (S.1619)113 and Franks Safe Schools Internet Act (H.R. 3177),114 the Child Protection Act applied to all federal funds (not just E-rate or LS TA funding) and specifically st ated that the filtering method used had to be software and the software had to be operational.115 Istooks proposal would have prevented minors from accessing only obscenity, rather than the broader range of material deemed inappropriate to minors,116 as the McCain and Franks bills 112 See Title VI, Child Protection Act of 1998, Depts. of Labor, Health & Human Servs., & Educ., & Related Agencies Appropriations Act, [FY]1999, H.R.4274, 105th Cong. (2d Sess. 1998). 113 See S.1619, 105th Cong. (2d Sess. 1998). 114 See H.R. 3177, 105th Cong. (2d Sess. 1998). 115 Title VI, Child Protection Act of 1998, Depts. of Labo r, Health & Human Servs., & Educ., & Related Agencies Appropriations Act, [FY]1999, H.R.4274, 105th Cong. (2d Sess. 1998). 116 In Miller v. California, 413 U.S. 15, 24 (1973), the Supreme Court defined obscenity as works which, taken as a whole, appeal to the prurient interest in sex, which portr ay sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value. Id. See Chapter 4 for a discussion of obscenity and the concept of harmful to minors. The phrase inappropriate for minors was not defined in McCains bill, S.1619, 105th Cong. (2d Sess. 1998) or Franks bill, H.R. 3177, 105th Cong. (2nd Sess. 1998). In June 2000, Rep. Charles Chip Pickering introd uced the Childrens Internet Protection Act, the first bill to define what content would be inappropriate for minors. See H.R. 4600, 106th Cong. (2d Sess. 2000). Pickerings bill, which was co-sponsored by Bob Franks and Ernest Isto ok, used the term harmful to minors. The bill defined harmful to minors as, any communication, picture, image, graphic image file, article, recording, writing or other matter of any kind that(i) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion; (ii) depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simu lated normal or perverted sexual acts, or a 252

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did. The Istook amendment contained a provisi on stating that the software could be temporarily interrupted to permit a minor to have access to information that is not obscene or otherwise unprotected by the Cons titution under the direct supervision of an adult designated by su ch school or library.117 The McCain and Franks bills did not require the installation of software as a so lution and did not literally require that the filtering or blocking system had to be activated, although the introduction to both McCains and Franks bills stated that schools and libraries had to implement such a system.118 Istook had requested an analysis of the constitutionality of the Child Protection Act of 1998 from the Congressional Resear ch Service. Henry Cohen, a legislative attorney, drafted a memo stating that the bi ll would be constitutional because obscenity is not protected by the First Amendment. Cohen also stated that the bill would not necessarily be unconstitutional if it were to be applied to constitutionally protected material because Congress may, to some extent discriminate on the basis of the content of protected speech in choosing what speech to fund, even where it could not do so by directly proscribing it.119 lewd exhibition of the genitals; (iii) taken as a whole, lacks serious literary, artistic, political, or scientific value. H.R. 4600, 106th Cong. (2d Sess. 2000). 117 Title VI, Child Protection Act of 1998, Depts. of Labo r, Health & Human Servs., & Educ., & Related Agencies Appropriations Act, [FY]1999, H.R.4274, 105th Cong. (2d Sess. 1998). 118 S.1619, 105th Cong. (2d Sess. 1998) and H.R. 3177, 105th Cong. (2nd Sess. 1998). The introduction to both bills stated: No universal service for schools or libraries that fail to implement a filtering or blocking system for computers with Internet access, which might imply activation. See Internet School Filtering Act. S.1619, Sec. 1, 105th Cong. (2d Sess. 1998) and Safe Schools Internet Act, H.R. 3177, Sec. 2, 105th Cong. (2d Sess. 1998). 119 Memorandum from Henry Cohen, Legislative Attorney, Congressional Research Service, to Rep. Ernest J. Istook, Jr., U.S. House of Representa tive, Re: Constitutionality of Blocking URLs Containing Obscenity and Child Pornography (June 7, 1999), reprinted 145 CONG. REC. E 1602-03 (July 20, 1999) (on file with author of this dissertation and also available at http://www.techlawjournal.com/congress/blocking/80629crs.htm ). 253

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A House Appropriations Subcommittee unani mously approved the Istook-sponsored Child Protection Act of 1998, and it then was adde d as an amendment to the Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act in the House.120 However, the Istook amendment was not included in the final Omnibus Appropriations Act that Congress enacted.121 Another related bill, but one not requiring filtering tec hnology, the E-Rate Policy and Child Protection Act, was introduced in 1998.122 The bill instead manda ted that libraries and schools obtaining E-rate funding must establish a user policy for minors accessing computers connected to the Internet. The bill, which was introduced by Rep. Edward Markey, a Democrat from Massachusetts, would have amended the Communications Act of 1934 by requiring a user policy that would establish a policy governing minor s access to material deemed inappropriate for children.123 The purpose of the proposed legislati on, according to Markey, was to ensure that local school and library officials think through the many issues of online access, and implement a policy for addressing access by children.124 The House Commerce Committee referred the bill to the Subcommittee on Telecomm unications, Trade, and Consumer Protection, where it died. Senator McCain, who had introduced a mandatory filtering bill earlier in the year, opposed the implementation of acceptable use pol icies in place of filtering or blocking technology. McCain stated that although public libraries and schools had argued in favor of 120 Title VI, Child Protection Act of 1998, Depts. of Labo r, Health & Human Servs., & Educ., & Related Agencies Appropriations Act, [FY]1999, H.R.4274, 105th Cong. (2d Sess. 1998). 121 The author of this dissertation could not find documentation as to why the amendment was not included in the Appropriations Act. 122 E-Rate Poly & Child Protection Act of 1998, H.R. 3442, 105th Cong. (2d sess. 1998). Rep. Edward Markey, Dem.-Massachusetts, introduced the act, which was co-sponsored by Rep. Thomas Manton, Dem.-New York. 123 H.R. 3442, 105th Cong. (2d sess. 1998). 124 Extensions of Remarks, 144 CONG. REC. E362 (March 12, 1998) (statement of Rep. Edward Markey). 254

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acceptable use policies, [ I]mplementing a use policy alone woul d be completely ineffective because Internet users could intentionally or unintentionally access se xually explicit Web sites.125 Proposed Legislation in 1999 Congress again took up the filtering issue in its next session in 1999, with a total of seven library and school filtering bills or amendments coming before the Senate and House. Four filtering bills were introduced in the House,126 two filtering bills were introduced in the Senate,127 and one filtering amendment was attached to the Houses version of the juvenile justice bill.128 Congress did not enact any of the bills or amendments. In January 1999, Rep. Bob Franks, a Republican from New Jersey, introduced the first of his three filtering bills of the year, H.R. 368, the Safe Schools Internet Act of 1999.129 Franks bill would have required public libraries and schools receiving universal service funding to 125 144 CONG. REC. S 8161 at 8162 (July 15, 1998) (statement of Sen. John McCain). McCain had introduced the Internet School Filtering Act, S.1619, 105th Cong. (2d Sess. 1998). 126 Safe Schools Internet Act of 1999, H.R. 368, 106th Cong. (1st Sess. 1999); Childrens [sic] Internet Protection Act, H.R. 543, 106th Cong. (1st Sess. 1999); Childrens [sic] Internet Protection Act, H.R. 896, 106th Cong. (1st Sess. 1999); Child Protection Act of 1999, H. R. 2560, 106th Cong. (1st Sess. 1999). 127 See Childrens [sic] Internet Protection Act, S. 97, 106th Cong. (1st Sess. 1999); Neighborhood Childrens Internet Protection Act, S. 1545, 106th Cong. (1st Sess. 1999). 128 See Childrens Internet Protection Act of 1999, H. Amdt. 212/Title XIV/Sec. 1401 of Juvenile Justice Reform Act of 1999, H.R. 1501, 106th Cong. (1st Sess. 1999). Th e Senate version of the juvenile offender bill contained a filtering amendment that required Internet Service Providers to offer a computer filtering or blocking system or software to residential customers, but that amendment di d not include a provision that mandated filtering in public libraries and schools. See the Violent & Repeat Juvenile Offender Accountability & Rehabilitation Act of 1999, S. 254, 106th Cong. (1st Sess. 1999). The name of the Juvenile Justice Reform Act of 1999 was changed to the Violent and Repeat Juvenile Offender Accounta bility and Rehabilitation Act of 1999 in an engrossed amendment as agreed to by the Senate, H.R. 1501.EAS, 106th Cong. (1st Sess. 1999). Congress did not enact the filtering amendments. 129 See Safe Schools Internet Act of 1999, H.R. 368, 106th Cong. (1st Sess. 1999). Rep. Michael Oxley (Rep.-Ohio) and Rep. Ronnie Shows (Dem.-Massachusetts) cosponsored the bill. Franks introduced the Childrens [sic] Internet Protection Act, H.R. 543, 106th Cong. (1st Sess. 1999) in February 1999 and the Childrens [sic] Internet Protection Act, H.R. 896, 106th Cong. (1st Sess. 1999) in March 1999. In April 1999, Franks also introduced a filtering amendment as part of the juvenile offenders [sic] bill. See Childrens Internet Protection Act of 1999, H. Amdt. 212/Title XIV/Sec. 1401 of Juvenile Justice Reform Ac t of 1999, H.R. 1501, 106th Cong. (1st Sess. 1999). 255

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install a system to filter or block matter deemed to be inappropriate for minors, thus amending the Communications Act of 1934.130 In a public library, the system would need to be installed on one or more of its computers with Internet ac cess. In a school, the system would need to be installed on computers with Internet access. In the section of the bill pertaining to public libraries, Franks did not clarify th e term one or more computers. If a library had more than one computer, the bill could mean that the library could choose whether to put a filtering or blocking system on just one computer, on several computers or on all computers. In contrast, the bill could mean a library with just one computer would be required to install a filt ering or blocking system on that single computer. A local authority, such as the library, school or school board, would determine which content would be inappropriate for minors. Franks bill was referred to the House Committee on Commerce, which then referred it to the Subcommittee on Telecommunications, Trade, and C onsumer Protection, where it died. On the same day that Franks introduced the Safe Schools Internet Act in the House, John McCain, a Republican from Arizona, and Ernest Hollings, a Democrat from South Carolina, introduced S. 97, the Childrens [sic] Internet Protection Act,131 in the Senate.132 The McCainHollings filtering bill was similar to McCains 1998 bill.133 McCain, in his opening statement in the Marc h 4, 1999 hearing on S.97, said that as more and more children use the Intern et in libraries and schools, th ose children were likely to 130 See Safe Schools Internet Act of 1999, H.R. 368, 106th Cong. (1st Sess. 1999). 131 See S.97IS, 106th Cong. (1st Sess. 1999). Ernest Hollings cosponsored S.97 when it was first introduced. Six Republican cosponsors were added later. 132 In 1998, Sen. McCain had introduced the Internet Sc hool Filtering Act, S.1619, 105th Cong. (2d Sess. 1998). 133 See S.1619, 105th Cong. (2d Sess. 1998). For a discussion of S.1619, see supra notes 58-92 and accompanying text. 256

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encounter online pornography and sexual predator s unless filtering tec hnology was required.134 McCain, who continued to serve as chairman of the Commerce Committee, said that S.97 was basically the same Internet filtering bill repor ted out of this committee in the last Congress.135 If public libraries and schools wanted to receive or retain universal serv ice, or E-rate, funding, the McCain-Hollings bill would have required thos e libraries and schools to install and use a technology on computers connected to the Internet in order to f ilter or block material deemed to be harmful to minors.136 The McCain-Hollings bill did define the term harmful to minors. McCains 1998 bill, S.1619,137 did not contain a specific prov ision for libraries with only one computer, whereas S.97, the McCain-Hollings b ill, stipulated that lib raries with only one computer connected to the Internet were not required to use filtering or blocking technology. However, if the library did not use filtering or blocking technology on its only computer, the bill would have required the library to certify to the FCC that the library employs a reasonably effective alternative means to keep minors from accessing material on the Internet that is deemed to be harmful to minors.138 The McCain-Hollings bill required that libraries and schools install a technology to filter or block materi al deemed to be harmful to minors,139 whereas McCains 1998 bill, S.1619, mandated that libraries and schools install a system to filter or block matter deemed to be inappropriate for minors.140 No reason was given for deleting the 134 See S.97, The Childrens Internet Protection Act, S. Hrg. 106-603 (1st Sess., Mar. 4, 1999) at 2. 135 Id. at 1 (statement of Sen. John McCain, referring to S.1619, Internet School Filtering Act). See S.1619, 105th Cong. (2d Sess. 1998). 136 S.97IS, 106th Cong. (1st Sess. 1999). 137 S.1619, 105th Cong. (2d Sess. 1998). 138 S.97IS, 106th Cong. (1st Sess. 1999). 139 Id. 140 S.1619, 105th Cong. (2d Sess. 1998). 257

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phrase inappropriate for minors which was used in S.1619, and adding harmful to minors to S.97. Moreover, neither term was defined in th e bills. However, the Senate Report on S.97 Childrens Internet Protection Act, stated that the Senate Commerce Committee met in an open executive session on June 23, 1999, and ordered th e bill to be reported favorably with an amendment in the natu re of a substitute. the 141 Both McCains 1998 and 1999 bills would have required that a local authority, such as the library, school board or school, determine whic h content would not be available to children. However, the inappropriate content was labele d inappropriate for minors in McCains 1998 bill142 and harmful to minors in the McCain-Hollings 1999 bill.143 Under the McCain-Hollings bill in 1999, a library with more than one comput er connected to the Internet would need to certify to the FCC that the library had install ed and uses the filte ring or blocking technology on one or more of its com puters with Internet access.144 According to McCains 1998 bill, a library would need to certify to the FCC that on one or more of its computers with Internet access, it employs a system to filter or block ma ttered deemed to be inappropriate for minors.145 During a Senate Commerce Committee hearing on S.97, the McCain-Hollings bill, in March 1999, Senator McCain and a librarian debated whether the filtering software needed to be turned on in order for libraries to receive universal service fu nding. McCain stated that the software does not have to be used. Candace Mo rgan, associate director of the Fort Vancouver 141 SEN. REP. NO. 106-141 at 9 (Aug. 5, 1999). The author of this dissertation could not find any documentation explaining the reasoning for the changes in wording from inappropriate for minors to harmful to minors. 142 See S.1619, 105th Cong. (2d Sess. 1998). 143 See S.97, 106th Cong. (1st Sess. 1999). 144 Id. 145 S.1619, 105th Cong. (2d Sess. 1998). Libraries needed to certify to the FCC that the library employs a filtering or blocking system on one or more of its computers with Internet access. Id. 258

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Regional Library in Washington and an opponent of the filtering bill, rep lied, That is not what the plain language appears to say. Sen. McCain responded, The language clearly says, it is up to your criteria, the crite ria that you decide, that the board de cides, without any interference from anybody. Morgan said, The criteria is how to configure the software. McCain answered, No, maam. That is absolutely false . I am so rry that you would not read English the same way that everybody else does . If you and the boa rd decided that you do not want to use this software, do not use it.146 Senator John Jay Rockefeller, a Democrat from West Virginia, agreed with Morgans interpretation of the plain wording of the bill and questioned McCains interpretation of his own bill. When somebody says that you install a tech nology but you do not have to turn it on, which is what Senator McCain says, that does not necessarily help you, does it, Ms. Morgan?147 Rockefeller asked. Morgan replied, Twice in this bill it says that the software will be installed and used, so I cannot quite grasp why it could be tu rned off. If it is off, it is not being used.148 Elliot Mincberg, M.D. and Vice President for People for the American Way, agreed with Morgans and Rockefellers interpretation of the bills language. S.97 simply says installs and uses this technology, so it is not at all an unreasonable inference, one shared not just by me and Ms. Morgan, but by Senator Rockefeller and organizations across the country, that S.97 as worded could be applied to mean that filtering must be used at all times.149 146 S.97, The Childrens Internet Protection Act, S.Hrg. 106-603 (1st Sess., March 4, 1999) at 27-30. 147 Id. at 30-31 (statement of Se n. John Jay Rockefeller). 148 Id. at 30. 149 Id. at 59 (statement of Elliot Mincberg, M.D. and Vice President and General Counsel for People for the American Way). Mincberg did not list names of organizations during his testimony. 259

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During the hearing, several other witnesses testified before the Commerce Committee. The president of Net Nanny, a filtering software company, stated that filtering and blocking technology can block Web sites, such as thos e containing pornography, hate speech, bombmaking instructions, and illegal drug information, a nd can create a list of positive sites that are safe and educational for children.150 The chairman of RuleSpace, another filtering software company, stated that its product, WebChaperone could recognize and stop the download of pornography without blocking health-related information. 151 A criticism of older filtering software had been that the software erroneously blocked health sites, such as breast cancer sites. A filtering advocate testified that the Childrens Internet Protection Act would permit librarians and school administrato rs to rely on their own su bjective good faith judgment in blocking or screening materi al considered by them to be harmful to minors.152 However, Jerry Berman, Director of the Center for Democracy a nd Technology, who also testified in an earlier House subcommittee hearing on mandatory filteri ng, disagreed. Requirements to adopt filtering technology will effectively usurp local communities abilities to set standa rds because filtering technologies do not mirror the diversity of local community norms fo und across the country, Berman stated again in 1999.153 Librarian Susan Fuller testified that she opposed mandatory filtering beca use a filtering law would prevent local communities from di scussing and providing input on how best to address minors access to inappropri ate Web sites in public libraries.154 Morgan, the librarian 150 Id. at 25 (statement of Gordon Ross, President and CEO of Net Nanny). 151 Id. at 40 (statement of Adrian Russell-Falla, Chairman of RuleSpace, which developed WebChaperone). 152 Id. at 53 (statement of Bruce Taylor, President and Chief Counsel, National Law Center for Children and Families). 153 Id. at 88 (prepared statement of Jerry Berman, Executive Director of the Ce nter for Democracy and Technology). 154 Id. at 92 (statement of Susan Fuller, Dir ector of the Santa Clara County Library). 260

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who had debated the language of the bill with McCain, also disagreed with a federal mandate, stating that libraries and comm unities should work together for find a solution. I do believe what this country is all about is both local control and also individual choice. An unfiltered environment should not be mandated, and a filtere d environment should also not be mandated, Morgan said.155 If filtering were to be mandated, Mo rgan recommended that the bill allow parents to decide whether their children would have filtered or unfiltered access to the Internet. Parents would need to come to the library just once so that the librarian could program the childs library card to allow either filter ed or unfiltered access to the Internet.156 In June 1999, the Senate Commerce Committee endorsed the McCain-Hollings bill with an amendment in the nature of a substitute and recommended passage of the amended bill. 157 The amended bill contained two major revisionsa change in content covered under the bill and the addition of an enforcement provision for librari es with more than one computer connected to the Internet. First, libraries with more than one computer connected to th e Internet were required to use a technology on computers with Internet access in order to filte r or block Internet access through such computers to material that is obscene and child pornography.158 The original version of S.97, the McCain-Hollings bill, did not include obscenity and child pornography. S.97, as first introduced, would have required libraries and schools to install and use a technology on computers connected to the Internet in order to filt er or block material 155 Id. at 59 (statement of Candace Morgan, Associate Di rector of the Fort Vancouver Regional Library in Washington). 156 Id. at 37 (statement of Candace Morgan). 157 Childrens Internet Protection Act, Report of th e Comm. on Commerce, Science, & Transportation on S.97, SEN. REP. NO. 106-141 (1st Sess. 1999) at 1, 9. 158 Id. See also Childrens Internet Protection Act, Report of the Committee on Co mmerce, Science, and Transportation on S.97, SEN. REP. NO. 106-141 (1st Sess. 1999) at 18 & 21. 261

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deemed to be harmful to minors.159 The Committee did not include a harmful to minors provision in the amended bill. The Committee did not explain why it added obscenity and child pornography to the amended bill or why it delete d the harmful to minors clause from the amended bill. The second major change applied to libraries with more than one computer connected to the Internet. According to the amended version of the bill, libraries with more than one computer connected to the Internet would need to certify to the FCC that they were enforcing a policy to ensure the operation of th e technology during any use of such computers by minors.160 The original version of the McCain-Hollings bill di d not contain an enforcement policy provision for libraries having more than one computer conn ected to the Internet. However, neither the McCain-Hollings original bill nor the amended bill would have required the library to install filtering or blocking software if only one comput er was connected to the Internet. Instead, both versions of the bill would have required libr aries with only one com puter connected to the Internet to enforce a user policy to ensure that minors did not use the computer to gain access to the Internet content specified under th e original bill and the amended bill.161 The Commerce Committee did not specifically state why it changed the wording in the McCain-Hollings bill. However, in explaining the need for filtering legislation, the August 1999 Senate Commerce Committee report used the same language found in McCains 1998 filtering bill rather than in the McCain-Hollings 1999 bill. Th e report stated that the purpose of the bill is to protect Americas children from exposure to obscene material, child pornography, or other 159 S.97IS, 106th Cong. (1st Sess. 1999). 160 S.97RS, 106th Cong. (1st Sess. 1999). See also Childrens Internet Protection Act, Report of the Committee on Commerce, Science, and Tr ansportation on S.97, SEN. REP. NO. 106-141 (1st Sess. 1999) at 18 & 21. 161 S.97IS & S.97RS, 106th Cong. (1st Sess. 1999), Comm ittee on Commerce, ordered to be reported with an amendment in the nature of a substitute favorably. 262

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material deemed inappropriate for minors while accessing the Internet fr om a school or library receiving Federal Univer sal Service assistance.162 Despite the inclusion of the inappropriate to minors phrase in its report, the Commerce Committee did not include inappropriate for minors or harmful to minors as text in the amended version of the McCain-Hollings bill. The Committee report stated that the Supreme C ourt has repeatedly upheld the compelling government interest in protecting children from e xposure to sexually explicit material and that schools and libraries accepting Un iversal Service funding become a partner with the Federal government in pursuing this compelling interest.163 The Committee also stated that it does not believe that the use of blocking and filtering technologies is in any way a substitute for aggressive and responsible oversight by teachers and librarians, but rather [s]uch technologies are intended to be a supplement to, not a replaceme nt for, teacher and librarian efforts to protect children while on-line.164 Mary Anne Layden, a clinical psychologist who also testified on the negative effects of online pornography before a House subcommittee in 1998,165 said that exposure to pornography 162 Childrens Internet Protection Act, Report of the Comm ittee on Commerce, Science, and Transportation on S.97, SEN. REP. NO. 106-141 (1st Sess. 1999) at 1. 163 Id. at 7. 164 Id. at 6. 165 See Legislative Proposals to Protect Children from Inappropriate Materials on the Internet: Hearing before the Subcomm. on Telecomm., Trade, & Consumer Protection of the Comm. on Commerce, 105th Cong. 119 (2d Sess. Sept. 11, 1998) at 55, 84-85 (statement of Mary Anne La yden, Ph.D., Director of Education, Dept. of Psychiatry, Center for Cognitive Therapy, Univ. of Pennsylvania). Layden stated that online pornography could have a greater effect on minors than printed pornography. Children ar e especially affected by the anonymity of online pornography because it loosens up the inhibitions to antis ocial behavior and produces an increase in antisocial behavior, Layden said. Id. 263

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distorts childrens sexual beliefs.166 Parents who prefer that thei r children make their own online choices are not aware of the damage that pornographic material causes, Layden said.167 Layden, who has treated children in her prac tice, said that ex posure to pornography impedes natural sexual development.168 She said that [e]xposing children to pornography meets the criteria for childhood sexual abuse because children develop distorted beliefs (and) pathological behavior, which can th en lead them to become abusers.169 In addition, she said that once children are exposed to pornography, the damage is done and cannot be undone,170 in part because visual imagery is very powerful.171 She said that unlike verbal or written messages, images are stored permanently and are mentally processed as events, as facts and are stored unbuffered and unchallenged.172 Layden stated that Internet se x cites contain the three factors that produce the best environment to stimulate antisocial behavior in children the combination of anonymity, role models of behavior, and arousal.173 She said she was concerned a bout letting children and their 166 Childrens Internet Protection Act: Hearing before the Comm. on Commerce, Science, & Transportation on S.97 S. Hrg. No. 106-603 (1st Sess., March 4, 1999) at 12 (statement of Mary Ann Layden). 167 Id. at 26. 168 Id. at 12-14, 26, stating that exposure to soft core pornography negatively affects child and adolescent development (statement of Mary Anne Layden). See also Childrens Internet Protection Act, Report of the Committee on Commerce, Science, and Transportation on S.97, SEN. REP. NO. 106-141 (1st Sess. 1999) at 3 (statement of Mary Anne Layden) (reporting on the harms that children may experience from viewing pornography). 169 Childrens Internet Protection Act, Report of the Comm ittee on Commerce, Science, and Transportation on S.97, SEN. REP. NO. 106-141 (1st Sess. 1999) at 12 (statement of Mary Ann Layden). 170 Id. at 36. 171 Id. at 13. 172 Id. 173 Id. Layden stated that research indicated that these thr ee factors stimulated antisocial behavior, but she did not cite the research. 264

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parents decide about minors access to pornogra phy because those childre n will interact with other children whose parents do not want them exposed to sexually explicit material.174 Elliot Mincberg, M.D., an attorney and Vice President of People for the American Way, told the committee that a bill mandating Internet filtering would discourage more effective approaches that could be developed, such as a user policy.175 The Senate Commerce Committ ee approved S.97, which was placed on the Senates Legislative Calendar under Gene ral Orders on Aug. 5, 1999. However, the Senate did not vote on the bill.176 In February 1999, Franks introduced his second filtering bill of the year, the Childrens [sic] Internet Protection Act,177 which was identical to the orig inal version of S.97, the McCainHollings bill, before it was amended.178 Franks bill would have re quired public libraries and schools that accepted E-rate funding to select and install a technology for computers with Internet access to filter or block material deemed to be harmful to minors. Libraries with only one computer connected to the Internet would not be required to install a filtering or blocking technology, but rather could employ a reasonably effective alternative means to keep minors from accessing material on the Internet that is deemed to be harmful to minors.179 Franks bill was referred to the House Committee on Commer ce, which then referred the bill to the Subcommittee on Telecommunications, Trade, and Consumer Protection, where it died. 174 Id. at 35. 175 Childrens Internet Protection Act: Hearing before the Comm. on Commerce, Science, & Transportation on S.97 S. Hrg. No. 106-603 (1st Sess. March 4, 1999) at 59 (statement of Elliot Mincberg, M.D.). 176 The author of this dissertation could find no documentation on why the Senate did not vote on S.97. 177 H.R. 543, 106th Cong. (1st Sess. 1999). 178 Childrens [sic] Internet Protection Act, S.97, 106th Cong. (1st Sess. 1999). 179 Childrens [sic] Internet Protection Act, H.R. 543, 106th Cong. (1st Sess. 1999). 265

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In March 1999, Rep. Bob Franks introduced his third filtering bill of the year, H.R. 896, the Childrens [sic] Internet Protection Act.180 Franks bill was identical to his second 1999 bill, H.R. 543,181 and to the McCain-Hollings bill182 in all provisions but one. H.R. 896, Franks third bill, would have required that libraries use f iltering or blocking technology on any computer when that computer was being used by a minor in order to block material deemed harmful to minors.183 The term harmful to minors was not defi ned in the bill. In contrast, Franks second bill, H.R. 543, and the McCain-Hollings bill, S. 97, required that such technology be used on at least one computer in libraries that had more than one computer connected to the Internet. In addition, for libraries that had only one computer connected to the Internet, Franks second 1999 bill, H.R. 543, and the 1999 McCain-Hollings bill, S.97, would have allowed libraries to use an effective alternative means to prevent minors from accessing material deemed harmful.184 H.R.896, Franks third filtering bill of 1999, was referred to the House Committee on Commerce, which then referred the bill to the Subcommittee on Telecommunications, Trade, and Consumer Protection, where it died in committee. In 1999, the House of Representatives approved an Internet filtering amendment as an attachment to a juvenile offender bill.185 The House amendment, sponsored by Bob Franks, a 180 Childrens [sic] Internet Protection Act, H.R. 896, 106th Cong. (1st Sess. 1999). 181 Childrens [sic] Internet Protection Act, H.R. 543, 106th Cong. (1st Sess. 1999). 182 Childrens [sic] Internet Protection Act, S.97, 106th Cong. (1st Sess. 1999). 183 Childrens [sic] Internet Protection Act, H.R. 896, 106th Cong. (1st Sess. 1999). 184 Childrens [sic] Internet Protection Act, H.R. 543, 1 06th Cong. (1st Sess. 1999).; Childrens [sic] Internet Protection Act, S.97, 106th Cong. (1st Sess. 1999). 185 Childrens Internet Protection Act of 1999, H. Amdt. 212/ Title XIV/Sec. 1401 of Juvenile Justice Reform Act of 1999, H.R. 1501, 106th Cong. (1st Sess. 1999). The name of the act was later changed to the Violent and Repeat Juvenile Offender Accountability and Rehabilitation Act of 1999 in an engrossed amendment as agreed to by the Senate, H.R. 1501.EAS, 106th Cong., 1st Sess. (1999). An engrossed amendment is the final copy of a bill that includes amendments to the text from floor actions. See Congressional Bills Glossary, available at http://www.gpoaccess.gov/ bills/glossary.html 266

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Republican from New Jersey, who had previously introduced three filtering bills in 1999, and Charles Chip Pickering, a Republican fr om Missouri, would have amended the Communications Act of 1934 to requ ire libraries and schools receivi ng universal service (E-rate) funds to implement an Internet filtering or blocki ng technology to filter or block three types of content: child pornography, obscene materials, and materials deemed harmful to minors.186 Franks most recent two bills had contai ned only a harmful to minors clause,187 while his first bill contained an inappropriate for minors clause.188 In contrast to Franks previous filtering bills, the filtering amendment contained two add itional types of content: child pornography and obscenity.189 The local library board and school district would determine which type of filtering technology to use.190 The text of the amendment did not contain the definitions of child pornography, obscenity or harmful to minors, but the amendment did state that the terms would have the same meanings as sp ecified in the United States C ode. Although child pornography was defined in the section of the code cited in the amendment,191 obscenity was not defined in the cited section of the code.192 According to the U.S. Code, "Material that is harmful to minors" 186 Childrens Internet Protection Act of 1999, H. Amdt. 212/ Title XIV/Sec. 1401 of Juvenile Justice Reform Act of 1999, H.R. 1501, 106th Cong. (1st Sess. 1999). 187 Childrens [sic] Internet Protection Act, H.R. 543, 106t h Cong. (1st Sess. 1999) and Childrens [sic] Internet Protection Act, H.R. 896, 106th Cong. (1st Sess. 1999). 188 Safe Schools Internet Act of 1999, H.R. 368, 106th Cong. (1st Sess. 1999). 189 Childrens Internet Protection Act of 1999, H. Amdt. 212/ Title XIV/Sec. 1401 of Juvenile Justice Reform Act of 1999, H.R. 1501, 106th Cong. (1st Sess. 1999). 190 145 CONG. REC. H4537 (June 17, 1999), 106th Cong. (1st Sess. 1999) (statement of Rep. Bob Franks). 191 Child pornography is defined as a visual depiction that involves the use of a minor engaging in sexually explicit conduct. 18 U.S.C. 2252 (2000). 192 18 U.S.C. 1460 provides that persons possessing obscene materials with intent to sell shall be fined or imprisoned or both. However, obscenity is not defined in 18 U.S.C. 1460. Obscenity is defined in Miller v. California, 413 U.S. 15 (1973). The Miller test defines obscenity as whether the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest; 2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the 267

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applied to persons under the age of seventeen and was defined as any communication, picture, image, graphic image file, article, recording, wr iting, or other matter of any kind that is obscene or that (A) the average perso n, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to a ppeal to, or is designed to pander to, the prurient interest; (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.193 Franks amendment did not specify who woul d determine whether the material met the definitions of child pornography or obscenity. However, the amendment did specify that local officials, such as a library board, library, school board or school, would determine which content would be considered harmful to minors.194 In introducing the amendm ent, Franks said children do not have to be actively looking for pornograp hic web sites to be exposed to adult-only materials.195 For example, he reported that pornogra phic web site operators frequently use applicable state law; and 3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. Miller, 413 U.S. at 24. 193 47 U.S.C. 231. This section of the code, which contains the Communications Decency Act (CDA) and is part of the Telecommunications Act of 1996, also would have restricted minors access to materials commercially distributed by means of [the] World Wi de Web that are harmful to minors. Id. 194 Childrens Internet Protection Act of 1999, H. Amdt. 212/ Title XIV/Sec. 1401(a)(8) of Juvenile Justice Reform Act of 1999, H.R. 1501, 106th Cong. (1st Sess. 1999). 195 145 CONG. REC. H4537 (June 17, 1999) (statement of Bob Franks). As an example, Franks cited whitehouse.com, which at the time was a pornographic site, but later became a political web site and subsequently a home loan modification web site not affiliated with the U.S. government. 268

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terms popular with kids on their web sites in order to draw minors to those sites.196 Franks stated that his filtering amendment woul d require that librari es and schools apply the same restrictions on Internet materials as they had on books. For generations, school s and libraries have routinely decided what books are appropriate for our children to read, he said.197 Rep. W.J. Billy Tauzin, a Republican from Louisiana, supported the amendment, stating that filters are easy to install and ine xpensive, especially since the government would cover most of the costs through the E-rate program.198 Rep. Bobby Rush, a Democrat from Illinois, opposed the amendment, stating that mandatory filtering would financially and administratively burden schools and libraries.199 Rep. Bobby Scott, a Democrat from Virginia, also opposed the amendment, stating that there ha d been examples of filters failing to block pornographic sites while erroneous ly blocking nonpornographic sites.200 Although the House approved a mandatory filtering amendment as part of the Juvenile Justice Reform Act of 1999, 201 the Senate version of the Act did not include a filtering requirement.202 Congress did not enact a juvenile justi ce bill in 1999 and therefore no filtering amendment passed as part of the juvenile justice bill. 196 Franks stated that the terms Disney, Nintendo and Barbie were the most popular names use by pornography web site operators. 145 CONG. REC. H4537 (June 17, 1999). 197 145 CONG. REC. H4537 (June 17, 1999) (statement of Bob Franks). 198 145 CONG. REC. H4538 (June 17, 1999) (statement of Billy Tauzin). 199 145 CONG. REC. H4537 (June 17, 1999) (statement of Bobby Rush). 200 145 CONG. REC. H4538 (June 17, 1999) (statement of Bobby Scott). 201 Childrens Internet Protection Act of 1999, H. Amdt. 212/ Title XIV/Sec. 1401 of Juvenile Justice Reform Act of 1999, H.R. 1501, 106th Cong. (1st Sess. 1999).The filtering amendment is similar to S.97, the Childrens Internet Protection Act introduced by senators John McCain and Ernest Hollings. The filtering amendment would have denied E-rate funding to schools and public libraries that did not install filters on computers connected to the Internet. 202 However, one section of the Senate version required Internet Service Providers (ISPs) with 50,000 or more subscribers to provide residential custom ers either with free filtering software or to offer it at cost. Violent and 269

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In July 1999, Rep. Ernest Istook, a Republic an from Oklahoma, introduced the Child Protection Act of 1999,203 his second attempt at filtering legislation.204 The bill was cosponsored by Bob Franks, who had introduced three filterin g bills and a filtering amendment earlier in the year.205 Istooks 1999 Child Protection Act would have required a ll public libraries and schools receiving any federal funding, not just E-rate funding, to install software on any computer accessible to minors to prevent minors from obtaining access to any obscene information or child pornography using that computer.206 In contrast to his 1998 bill, which contained only an obscenity provision,207 Istook added child pornography as a second category of content in his 1999 bill.208 He did not explain why he added child pornography to his 1999 bill. The bill required that the software be operational when minors were using the computer. However, the bill allowed minors to have unfiltered access to Inte rnet content that was not obscene or was not child pornography if the minors we re supervised by an adult desi gnated by the library or school. Repeat Juvenile Offender Accountability & Rehabilitation Act of 1999, S. 254, 1604, 106th Cong. (1st Sess. 1999). 203 H.R. 2560, 106th Cong. (1st Sess. 1999). 204 In 1998, Istook proposed a filtering amendment as part of an appropriations bill. Title VI, Child Protection Act of 1998, Depts. of Labor, Health & Human Servs., & Educ., & Related Agencies Appropriations Act, 1999, H.R.4274, 105th Cong. (2d Sess. 1998). The Istook amendment was not included in the final Omnibus Appropriations Act that Congress passed in 1998. 205 Safe Schools Internet Act of 1999, H.R. 368, 106th Cong. (1st Sess. 1999); Childrens [sic] Internet Protection Act, H.R. 543, 106th Cong. (1st Sess. 1999); Childrens [sic] Internet Protection Act, H.R. 896, 106th Cong. (1st Sess. 1999); Childrens Internet Protection Act of 1999, H. Amdt. 212/Title XIV/Sec. 1401 of Juvenile Justice Reform Act of 1999, H.R. 1501, 106th Cong. (1st Sess. 1999). Istooks bill was cosponsored by one Democrat and six Republicans, including Franks. 206 H.R. 2560, 106th Cong. (1st Sess. 1999). 207 Title VI, Child Protection Act of 1998, Depts. of Labo r, Health & Human Servs., & Educ., & Related Agencies Appropriations Act, 1999, H.R.4274, 105th Cong. (2d Sess. 1998). 208 Child Protection Act of 1999, H.R. 2560, 106th Cong. (1st Sess. 1999). 270

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Unlike McCains bills209 and Franks bills,210 Istooks Child Protection Act did not contain an inappropriate for minors or a harmful to minors clause. The bill Istook introduced in 1999 was similar to the bill he introduced in 1998.211 Both bills would have required libraries and schools to install filterin g software to receive any federal funding, not just to receive the universal service (E-rate) funds specified in McCains bills212 and Franks bills.213 Istooks bill did not provide for as much local control over filtering select ion as McCains bills214 and Franks bills had.215 Instead, under Istooks bill, the chief execu tive officer of each state would designate an agency or official to determine adequate design of filtering software for libraries and schools within a states jurisdiction. For libraries and schools not within the jurisdiction of any state, the U.S. Secretary of E ducation would determine what constituted adequate design of 209 Internet School Filtering Act, S.1619, 106th Cong. (2d sess. 1998) contained an inappropriate for minors provision. Childrens [sic] Internet Filtering Act, S.97, 106 th Cong. (2d Sess. 1999) contained a harmful to minors provision. 210 Safe Schools Internet Act of 1998, H.R. 3177, 105th Cong. (2d Sess. 1998) and Safe Schools Internet Act of 1999, H.R. 368, 106th Cong. (1st Sess. 1999) contained an inappropriate for minors provision. The Childrens [sic] Internet Protection Act, H.R. 543, 106th Cong. (1st Sess. 1999) and Childrens [sic] Internet Protection Act, H.R. 896, 106th Cong. (1st Sess. 1999) contained a harmf ul to minors provision. Franks filtering amendment, attached to the juvenile offender bill in 1999, also contained a harmful to minors provision. See Childrens Internet Protection Act of 1999, H. Amdt. 212/Title XIV/Sec. 1401 of Juvenile Justice Reform Act of 1999, H.R. 1501, 106th Cong. (1st Sess. 1999). 211 Title VI, Child Protection Act of 1998, Depts. of Labo r, Health & Human Servs., & Educ., & Related Agencies Appropriations Act, 1999, H.R.4274, 105th Cong. (2d Sess. 1998). 212 Internet School Filtering Act, S.1619, 106th Cong. (2d Se ss. 1998) and Childrens [sic] Internet Filtering Act, S.97, 106th Cong. (2d Sess. 1999). 213 Safe Schools Internet Act of 1998, H.R. 3177, 105th Cong. (2d Sess. 1998); Safe Schools Internet Act of 1999, H.R. 368, 106th Cong. (1st Sess. 1999); Childrens [sic] Internet Protection Act, H.R. 543, 106th Cong. (1st Sess. 1999); Childrens [sic] Internet Protection Act, H.R. 896, 106th Cong. (1st Sess. 1999); and Childrens Internet Protection Act of 1999, H. Amdt. 212/Title XIV/Sec. 1401 of Juvenile Justice Reform Act of 1999, H.R. 1501, 106th Cong. (1st Sess. 1999). 214Internet School Filtering Act, S.1619, 106th Cong. (2d Sess. 1998) and Childrens [sic] Internet Filtering Act, S.97, 106th Cong. (2d Sess. 1999). 215 Safe Schools Internet Act of 1998, H.R. 3177, 105th Cong. (2d Sess. 1998); Safe Schools Internet Act of 1999, H.R. 368, 106th Cong. (1st Sess. 1999); Childrens [sic] Internet Protection Act, H.R. 543, 106th Cong. (1st Sess. 1999); Childrens [sic] Internet Protection Act, H.R. 896, 106th Cong. (1st Sess. 1999); and Childrens Internet Protection Act of 1999, H. Amdt. 212/Title XIV/Sec. 1401 of Juvenile Justice Reform Act of 1999, H.R. 1501, 106th Cong. (1st Sess. 1999). 271

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filtering software.216 The House did not hold a hearing or e ngage in floor debate on Istooks bill. In written comments submitted to the Congressi onal Record, Istook urged his colleagues to cosponsor the bill and stated that a Congressional Research Service opinio n stated that his bill would be constitutional.217 However, Istooks bill died in the House Committee on Education and the Workforce. Istook next introduced his bill as an amendment to the Fiscal Year 2000 Labor, Health and Human Services, and Education appropriations budget. By a voice vote, the House Appropriations Subcommitt ee added Istooks filtering amendment to the appropriations bill on Sept. 23, 1999.218 However, members of the House and Senate appropriations committees dropped the Internet filtering amendment from that budget.219 The last filtering bill of 1999 was introduced in the U.S. Senate in August by Richard (Rick) Santorum, a Republican from Penns ylvania. The Neighborhood Childrens Internet Protection Act220 (NCIPA) would have required public lib raries and schools to do one of two things to receive universal (E-rate) funding: select and install a sy stem to block or filter Internet matter deemed inappropriate for minors,221 or adopt and implement an Internet use policy that addressed access by minors to inappropria te matter on the Internet and World Wide 216 H.R. 2560, 106th Cong. (1st Sess. 1999). 217 Memorandum from Henry Cohen, Legislative Attorney, Congressional Research Service, to Rep. Ernest J. Istook, Jr., U.S. House of Representa tive, Re: Constitutionality of Blocking URLs Containing Obscenity and Child Pornography (June 7, 1999), reprinted 145 CONG. REC. E 1602-03 (July 20, 1999) (on file with author of this dissertation and also available at http://www.techlawjournal.com/congress/blocking/80629crs.htm ). 218 News Release, Am. Library Assn, Filtering Ame ndment Added to Appropriations Bill (Oct. 4, 1999) available at http://www.ala.org/ala/alonline/currentnews/newsa rchive/1999/october1999/filteringamendment.cfm The author could find no primary authority on the subcommittees vote. 219 Id. The author could find no documentation on the two committees decision or rationale to drop Istooks amendment. 220 See Neighborhood Childrens Internet Protection Act, S.1545, 106th Cong. (1st Sess. 1999). Sen. Rod Grams (Rep.-Minnesota) cosponsored the bill. 221 Id. 272

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Web.222 Local school boards, school officials and li brary officials would be responsible for selecting and installing the filter223 or adopting and implementing an Internet use policy for minors.224 The term inappropriate for minors was not defined in the bill. Unlike the 1999 McCain-Hollings filtering bill225 and Rep. Franks filtering bills,226 Santorums proposal did not specify that libraries and schools had to activate or use the filtering software if they chose filtering as an option.227 In addition, local libraries and school boards would have been able to develop and implement their own user policie s rather than implement filtering technology. Santorums bill also did not contain provisions pertaining to obscenity or child pornography. Santorums bill would have amended the Communications Act of 1934 by requiring either a user policy or filtering technology. The bill was referr ed to the Senate Commerce Committee, where it died. Proposed Legislation in 2000 By 2000, Congress was addressing mandatory Internet blocking and filtering proposals for the third year in a row. Representatives Ernest Istook, a Republican from Oklahoma, and Charles Chip Pickering, a Republican from Mississ ippi, introduced filteri ng bills in the House, but both bills died in committee. 222 Id. 223 Id. 224 Id. 225 Childrens Internet Protection Act, S.97, 106th Cong. (1st Sess. 1999). 226 Safe Schools Internet Act of 1999, H.R. 368, 106th Cong. (1st Sess. 1999); Childrens [sic] Internet Protection Act, H.R. 543, 106th Cong. (1st Sess. 1999); Childrens [sic] Internet Protection Act, H.R. 896, 106th Cong. (1st Sess. 1999). 227 Neighborhood Childrens Internet Protection Act, S.1545, 106th Cong. (1st Sess. 1999). 273

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In May 2000, Rep. Ernest Istook introduced the Internet Minors Protection and Cyberspace Technology Act,228 which was cosponsored by Rep. Bob Franks and five other Republicans.229 The Internet Minors Protection and Cyberspace Technology Act230 was identical to the Child Protection Act, 231 the bill Istook introduced the previous year, except for a onephrase revision pertaining to universal service (E-rate) funding. The Inte rnet Minors Protection and Cyberspace Technology Act of 2000 would have applied to all public libraries and schools receiving any federal funds or universal service assistance under the Communications Act of 1934if those funds were used to acquire or operate any computer accessible to minors and if the computer had Internet access. In cont rast, Istooks Child Prot ection Act of 1999 would have mandated that libraries and schools ensure th at filtering is operationa l on all computers used by minors if those libraries and schools ha d received funding from any federal agency.232 However, Istooks Child Protec tion Act of 1999 did not specific ally list universal service funding. The Internet Minors Protection and Cybers pace Technology Act of 2000 would have only applied to minors and would have required libraries and schools to ensure that filtering software was installed and operational when minors were using computer s connected to the Internet.233 The software had to be adequately designed to prevent minors from obtaining access to any 228 Internet Minors Protection & Cyberspace Tech. Act, H.R. 4545, 106th Cong. (2d Sess. 2000). 229 The cosponsors were Jay Dickey, Rep.-Arkansas; Sue W ilkins Myrick, Rep.-North Carolina; Mark Souder, Rep.Indiana; Thomas Tancredo, Rep.-Colorado; and Lee Terry, Rep.-Nebraska, all of whom also cosponsored Istooks 1999 bill. Id. See also Child Protection Act of 1999, H.R. 2560, 106th Cong. (1st Sess. 1999). 230 Internet Minors Protection & Cyberspace Tech. Act, H. R. 4545, 106th Cong. (2d Se ss. 2000). Rep. Bob Franks, who sponsored filtering bills in prev ious years, cosponsored H.R. 4545. 231 Child Protection Act of 1999, H.R. 2560, 106th Cong. (1st Sess. 1999). 232 Id. 233 The bill did not define operational. 274

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obscene information or child pornography.234 However, the bill also allowed the software to be temporarily interrupted to allow minors access to information that is no t obscene, is not child pornography, or is otherwise unprotected by the Constitution when those minors were under the direct supervision of an adult de signate of the school or library.235 Unlike filtering proposals introduced by other representatives and senators, Istooks bill did not incl ude an inappropriate for minors or harmful to minors clause The House Committee on Education and the Workforce referred the bill to the Subcommittee on Early Childhood, Youth and Families in July, but the bill never made it out of committee. In June 2000, Rep. Charles Chip Picker ing introduced the Childrens Internet Protection Act.236 Ernest Istook and Bob Franks cosponsored the bill, along with sixteen other Republicans and two Democrats. Pickerings bill, the Childrens Internet Protection Act (H.R. 4600),237 would have applied only to libraries and schools receiving uni versal service, or E-rate, discounts. Pickerings bill would have ame nded the Communications Act of 1934 by requiring that libraries and schools receiving E-rate fundi ng to select and enforce a technology for computers with Internet access to filter or bl ock obscenity and child pornography. The bill did not specify software as a requirement. The bill al so would have required the technology to block material that is harmful to minors when a minor was using any computer connected to the Internet.238 A minor was defined as anyone under the age of seventeen. In cont rast to previous 234 The Internet Minors Protection & Cybe rspace Tech. Act, H.R. 4545, 106th Cong. (2d Sess. 2000). The bill did not define operational. 235 Id. 236 Childrens Internet Protection Act, H.R. 4600, 106th Cong. (2d Sess. 2000). 237 Id. The bill was cosponsored by three Democrats and eight een Republicans, including two Republicans who had previously sponsored filtering legislation: Bob Fra nks of New Jersey and Ernest Istook of Oklahoma. 238 Id. 275

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bills, H.R. 4600 defined the term harmful to minors. The bill defined harmful to minors as any communication, picture, imag e, graphic image file, articl e, recording, writing or other matter of any kind that (i) taken as a whole and with re spect to minors, appeals to a prurient interest in nud ity, sex, or excretion; (ii) depicts, describes, or repres ents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; (iii) taken as a whole, lacks seriou s literary, artis tic, political, or scientific value.239 Local library boards, school boards, or library or school officials woul d have selected the blocking technology. When adults in libraries an d schools were using computers connected to the Internet, an administrator, supervisor, or other authority could disable the filtering technology to enable unfiltered access for bona fide research or other lawful purpose.240 The terms bona fide research and other lawful purpose were not defined in the bill. The House Commerce Committee referred Pick erings bill to the Subcomm ittee on Telecommunications, Trade, and Consumer Protection, where it died. The Enactment of Mandatory Filtering Legislation in 2000 In December 2000, Congress adopted the text of the Childrens Internet Protection Act and the Neighborhood Childrens Internet Protecti on Act as two separate amendments to the Labor, Health and Human Services, and Education Appropriations Act.241 The text of Senator 239 Id. 240 Id. 241 Dept. of Labor, Health & Human Servs., & Educ. Appropriations Act, 2001, H.R. 4577, 106th Cong. (2d Sess. 2000), Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 20 U.S.C. 9134(f) and 47 U.S.C. 254(h)). 276

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John McCains amendment to the Consolidated Appropriations Act242 was based on S.97, the Childrens Internet Protection Act,243 a bill that he and Senator Er nest Hollings had cosponsored in 1999. The text of Senator Rick Santorums amendment244 was based on S.1545, the Neighborhood Childrens Internet Protecti on Act, which he had introduced in 1999.245 Representatives Ernest Istook of Oklahoma and Charles Pickering of Missouri, who had introduced their own filtering bills in the House in 2000, supported Senator McCains and Senator Santorums filtering amendments. The McCain Amendment Although the Childrens Internet Protection Act was based on a bill that Senator McCain had introduced in 1999,246 as well as the filtering amendmen t he had proposed in the Labor, Health and Human Services, and Appropriations bill in 2000, 247 his filtering amendment was modified in committee. McCains amendment would have amended the Communications Act of 1934 by requiring libraries and schools accepting E-rate fundi ng to certify to the federal government that they had selecte d a technology to filter or bl ock Internet access to three types of content: 1. material that is obscene; 2. child pornography; and 242 Childrens Internet Protection Act, S.Amdt. No. 3610 to H.R.4577, Consol. Appropriations Act, 2001, 106th Cong. (2d Sess. June 22, 2000). 243 S.97, 106th Cong. (1st Sess. 1999). 244 Neighborhood Childrens Internet Protection Act, S.Amdt. No. 3635 to H.R.4577, Consol. Appropriations Act, 2001, 106th Cong. (2d Sess. June 22, 2000). 245 Neighborhood Childrens Internet Protection Act, S.1545, 106th Cong. (1st Sess. 1999). 246 Childrens Internet Protection Act, S.97, 106th Cong. (1st Sess. 1999). 247 Childrens Internet Protection Act, S.Amdt. No. 3610 to H.R.4577, Consol. Appropriations Act, 2001, 106th Cong. (2d Sess. June 22, 2000). 277

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3. any other material (that the libra ry or school) determines to be inappropriate for minors.248 Sen. McCains amendment would have required libraries and schools to certify that they were enforcing a policy to ensure the operation of the technology.249 However, his amendment did not clearly state that adults would have been able to access material that was inappropriate for minors but was constitutional for adults. Th e amendment only stated that libraries and schools would be required to filter or block such material deemed inappropriate for minors. Sen. McCains filtering amendment in 2000 di ffered from S.97, the McCain-Hollings bill introduced in 1999. Under the McCain-Hollings b ill in 1999, public libraries and schools that wanted to receive or retain uni versal service funding would have been required to install and use a technology on computers connected to the Internet in order to filt er or block material deemed to be harmful to minors.250 The McCain-Hollings bill contained an additional provision for libraries with only one comput er connected to the Internett he library was not required to use filtering or blocking technology. However, if the library did not use filtering or blocking technology, the bill would have requ ired the library to certify to the F CC that the library employs a reasonably effective alternative means to keep minors from accessing material on the Internet that is deemed to be harmful to minors.251 The filtering amendment that McCain introduced in 2000 did not contain a separate pr ovision for libraries with only one computer connected to the Internet. McCains filtering amen dment required all librar ies to install and use 248 Id. 249 Id. 250 S.97IS, 106th Cong. (1st Sess. 1999). 251 Id. 278

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blocking or filtering technology on any computer connected to the Internet, including those libraries with only one computer connected to the Internet. The joint House-Senate Conference Comm ittee amended the content categories in McCains amendment. McCains 2000 amendmen t would have required the use of filtering technology to prohibit access to obscenity, child pornography, and any other material [that the library or school] determines to be inappropriate for minors. 252 In contrast, the CIPA prohibits access to three types of sexually explicit visual online content: access by all patrons to visual depictions that are obscene,253 access by all patrons to visual depictions that contain child pornography,254 and access by persons under the age of seventeen to visual depictions that are considered harmful to minors.255 Unlike McCains amendment, the CIPA covers only visual depictions.256 The proceedings of the joint House-Senate conference committee, in which the wording changes were made to include only visual depictions, were not made public.257 As stated above, the 1999 McCain-Hollings bill, S.9 7, would have required libraries and schools to install and use a technology on computers conn ected to the Internet in order to filter or block material deemed to be harmful to minors.258 252 Childrens Internet Protection Act, S.Amdt. No. 3610 to H.R.4577, Consol. Appropriations Act, 2001, 106th Cong. (2d Sess. June 22, 2000). 253 20 U.S.C. 9134(f)(1) and 47 U.S.C. 254(h)(5)(B) & (h)(5)(C) and 47 U.S.C. 254(h)(6)(B) & (h)(6)(C). 254 20 U.S.C. 9134(f)(1) and 47 U.S.C. 254(h)(5)(B) & (h)(5)(C) and 47 U.S.C. 254(h)(6)(B) & (h)(6)(C). 255 20 U.S.C. 9134(f)(1)(A) and 47 U.S.C. 254(h)(5)(B) and 47 U.S.C. 254(h)(6)(B). 256 20 U.S.C. 9134 (f)(1) and 47 U.S.C. 254(h)(5)(B) & (C) and (6)(B) &(C). 257 According to the American Library Associations Washin gton office, the compromise may never be reported out as an official document fr om the Conference Committee. See Appropriations Bill Mandates Filter, AM. LIBRARIES, Vol. 13, Issue 8 at p. 14 (September 2000). 258 S.97IS, 106th Cong. (1st Sess. 1999). 279

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The Santorum Amendment Senator Rick Santorum also introduced an amendment in 2000 that required either filtering technology or an Internet user polic y. He introduced the text of the Neighborhood Childrens Internet Protection Act as an amendment to the Houses Miscellaneous Appropriations Act.259 Santorums amendment would have required libraries and schools accepting E-rate funding to certify to the federal government that they had either installed a system on computers to filter or block Internet access to matter considered to be inappropriate for minors or adopted and implemented an Inte rnet use policy that addresses access by minors to inappropriate matter on the Internet and World Wide Web.260 Santorums 2000 amendment, like his 1999 bill,261 only pertained to inappropriate matter and not obscenity or child pornography. Like his 1999 bill, Santorums 2000 amendment would have given libraries and schools a choice of installing a blocking or filtering system or implementing an Internet use policy.262 Unlike McCains 2000 amendment, Santorums amendment did not mandate the installation or us e of a blocking or filtering technology and did not include a provision to prevent adults or minors from accessing obscenity or child pornography.263 Santorum, in supporting his appropriations bi ll amendment, spoke out against mandatory filtering and blocking technology. He said that local communitiesnot the federal governmentshould decide how to deal in a co mprehensive way with minors access to 259 See Misc. Appropriation Act, H.R. 5666, 106th Cong. (2d Sess. 2000). 260 S. Amdt. No. 3635 to H.R. 4577, Consol. Appropria tions Act, 2001, 106th Cong. (2d Sess. June 27, 2000). 261 Neighborhood Childrens Internet Protection Act, S.1545, 106th Cong. (1st Sess. 1999). 262 S. Amdt. No. 3635 to H.R. 4577, Consol. Appropria tions Act, 2001, 106th Cong. (2d Sess. June 27, 2000). 263 Id. 280

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sexually explicit online material.264 McCain opposed Santorums amendment, calling it a status quo loophole that would allow schools and libr aries to implement an acceptable use policy instead of filtering.265 The House referred the Appropriations Act to the House Appropriations Committee, where the actand Santorums mandatory user policy amendmentdied. Santorum later added the text of the Neighborhood Childrens Internet Protection Act as an amendment to the Labor, Health and Human Services, and Education Appropriations Act in December 2000,266 which Congress enacted. However, Congress combined the language of Senator Santorums and Senator McCains amendments, thus requiring both an Internet use policy and a technology protection measure to prevent online access to visual depictions that are obscene, child pornography or harmful to minors.267 The Final Legislation The Childrens Internet Protection Act requir es public libraries, public schools and some nonpublic schools268 to use blocking or filtering technology on all computers with access to the Internet to receive discounts on Internet access and technology under the universal service, or E264 146 CONG. REC. S 5843 (June 27, 2000) (statement of Rick Santorum, Rep.-Pennsylvania). 265 146 CONG. REC. S 5866 (June 27, 2000) ( statement of John McCain, Rep.-Arizona). 266 Dept. of Labor, Health & Human Servs., & Educ. Appropriations Act, 2001, H.R. 4577, 106 Cong. (2d Sess. 2000), Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 20 U.S.C. 9134 (f) and 47 U.S.C. 254(h)). 267 Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 20 U.S.C. 9134 (f) and 47 U.S.C. 254(h)). 268 The Federal Communications Commission concluded that for a school to be eligible for universal service discounts, a school must meet the statutory definition of an elementary or secondary school found in the Elementary and Secondary Education Act of 1965, must not operate as a for-profit business, and must not have an endowment exceeding $50 million. Both pu blic and non-public elementary and secondary schools that meet these criteria will be eligible to receive discounts on eligible services. See Frequently Asked Questions on Universal Service and the Snowe-Rockefeller Amendment (released July 2, 1997) http://www.fcc.gov/learnnet/ (last visited July 20, 2009). 281

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rate, program.269 The E-rate provides li braries and schools with di scounts ranging from 20% to 90% to acquire telecommunications services, Internet services, internal systems, and equipment.270 The E-rate was established under the Telecommunications Act of 1996.271 Public libraries receiving funding under the Library Services and Technology Act also were required to install Internet filter s under the Childrens Internet Protection Act.272 The Library Services and Technology Act (LSTA) applie s only to libraries a nd not to schools. The LSTA provides funding to libraries so that they can expand services for learning, access to information and educational resources in a variety of formats.273 The LSTA allows libraries to use funds to access information electronically and to acquire or share computer systems and telecommunication technology, including the purchase of Internet access.274 The CIPA amended the LSTA, Title III of the Elemen tary and Secondary Education Act,275 by mandating that public libraries use Internet fi lters to receive funding.276 269 47 U.S.C. 254(h), mandating that blocking technology be installed on all computers connected to the Internet in schools and libraries receiving universal service or E-rate funding, even on those computers with Internet access not funded under the E-rate program. See also, Dept. of Labor, Health & Human Servs., & Educ. Appropriations Act, 2001, H.R. 4577, 106th Cong. (2d Sess. 2000). See also Telecommunications Act of 1996, Pub. L. No. 104-104, 47 U.S.C. 254. 270 Telecommunications Act of 1996, Pub. L. No. 104-104, 47 U.S.C. 254. See also United States v. Am. Library Assn, 539 U.S. 194, 199 (2003); Childrens Internet Protection Act, Report of the Comm. on Commerce, Science, & Transportation on S.97, S. REP. NO. 106-141 (1st Sess. 1999), at 2; Federal Communications Commission, E-rate, available at http://www.fcc.gov/learnnet/ (last visited July 20, 2009). 271 Telecommunications Act of 1996, 47 U.S.C. 254 272 See Childrens Internet Protection Act, 20 U.S.C. 9134(f); 47 U.S.C. 254(h)(6). 273 Library Servs. & Tech. Act, 20 U.S.C. 9141(a)(1)(C)(2003). 274 See United States v. Am. Library Assn, 539 U.S. 194, 199 (2003) (citing Library Servs. & Tech. Act, 20 U.S.C. 9141(a)(1)(C)(2003)). 275 20 U.S.C. 9121, 9134. 276 Childrens Internet Protection Act, 20 U.S.C. 9134(f). 282

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In addition to requiring Internet filtering technology, the Childrens Internet Protection Act required libraries and schools to implem ent an Internet safety policy for minors.277 The Internet safety policy includes monitoring the online activities of minor s and the operation of a technology protection measure with respect to any [library or sc hool] computers with Internet access that protects against access through such com puters to visual depictions that are obscene, child pornography, or harmful to minors. The safety policy must address minors access to inappropriate matter on the Internet and measures designed to restrict minors' access to materials harmful to minors. The policy also mu st address minors safety and security when using e-mail, chat rooms, and other forms of direct communications, as well as minors unauthorized access to the Internet, including hacki ng. Before implementing the Internet safety policy, libraries and schools were required to provide reasonable public notice and to hold at least one public hearing or one public meeting on the safety policy.278 The CIPA prohibits access to three types of sexually explicit visual content online: access by all patrons to visual depictions that are obscene,279 access by all patrons to visual depictions that contain child pornography,280 and access by persons under the age of seventeen to visual depictions that are considered harmful to minors.281 Both obscenity and child pornography fall under criminal law, and the Suprem e Court has held neither is protected by the First Amendment.282 277 20 U.S.C. 9134(f)(1)(A), 47 U.S.C. 2 54(h)(5)(A) and 47 U.S.C. 254(h)(6)(A). 278 47 U.S.C. 254 (l) (1). 279 20 U.S.C. 9134(f)(1) and 47 U.S.C. 254(h)(5)(B ) & (h)(5)(C) and 47 U.S.C. 254(h)(6)(B) & (h)(6)(C). 280 20 U.S.C. 9134(f)(1) and 47 U.S.C. 254(h)(5)(B) & (h)(5)(C) and 47 U.S.C. 254(h)(6)(B) & (h)(6)(C). 281 20 U.S.C. 9134(f)(1)(A) and 47 U.S.C. 254(h)(5)(B) and 47 U.S.C. 254(h)(6)(B). 282 See Roth v. United States 354 U.S. 476 (1957) (establishing that obscenity falls outside of First Amendment protection); Miller v. California 413 U.S. 15 (1973) (observing that the First Amendment does not protect obscenity 283

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The CIPA contains a disabling provision to allow unfiltered access to the Internet. Under the E-rate program, adults can request that the filte rs be disabled for adult use only for bona fide research or other lawful purpose,283 whereas under the LSTA program, anyone could request that the filters be disabled for bona fide research or ot her lawful purposes.284 However, libraries receiving LSTA funding would be proh ibited from turning off the filtering technology for minors if those libraries al so received E-rate funding beca use the disabling provision only applies to adults under the E-rate. The Childrens Internet Protection Act did not de fine bona fide resear ch or other lawful purpose(s). In addition, the CIPA did not define obscenity. Th e text of the CIPA indicated that the term obscene has been given the mean ing found in Section 1460 of Title 18 of the United States Code,285 but no obscenity definition is provide d in that section of U.S. Code. However, the Supreme Court developed a three-part test de fining obscenity in Miller v. California,286 a landmark case decided in 1973. In the CIPAs sections on child pornography, the legislation stated that it in corporated the definition of ch ild pornography found in Section 2256 and establishing the three-part obscenity test); New York v. Ferber 458 U.S. 747 (1982) (holding that the distribution of child pornography does not receive First Amendment protection). 283 United States v. Am. Library Assn, 539 U.S. at 201. See also Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 47 U.S.C. 254(h)(5)(D) and 47 U.S.C. 254(h)(6)(D)). Under 47 U.S.C. 254(h)(5)(D) and 254(h)(6)(D), the term lawful purpose is singular, whereas under 20 U.S.C. 9134(f)(3), the term lawful purposes is plural. 284 United States v. Am. Library Assn, 539 U.S. at 201. See also Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 20 U.S.C. 9134(f)(3)). Under 47 U.S.C. 254(h)(5)(D) and 254(h)(6)(D), the term lawful purpose is singular, whereas under 20 U.S.C. 9134(f)(3), the term lawful purposes is plural. 285 20 U.S.C. 9134(f)(7)D) and 47 U.S.C. 4(h)(7)(E). 286 413 U.S. 15, 24 (1973). In 1957, the Supreme Court held that obscenity was not protected by the First Amendment. Roth v. United States 354 U.S. 476 (1957). In Miller, the Court established the current three-part obscenity test: 1) whether the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest; 2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and 3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. Miller, 413 U.S. at 24. 284

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of Title 18 of the U.S. Code,287 which the legisla tion in fact did do.288 In defining harmful to minors, Congress modified the current threepart obscenity test th at the Supreme Court established in Miller .289 The CIPA legislation define d harmful to minors as any picture, image, graphic image file or other visual depiction that (i) taken as a whole and with respec t to minors, appeals to a prurient interest in nudity, sex, or excretion; (ii) depicts, describes, or represen ts, in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and (iii) taken as a whole, lacks serious lite rary, artistic, politic al, or scientific value as to minors.290 Conclusion From 1998 to 2000, the U.S. Senate and House had tried on several occasions to pass bills that would have required public libraries and most schools to install mandatory Internet filters to protect minors from accessing sexually e xplicit online material. However, most of the bills died in committee. In 2000, Congress pass ed Senator McCains mandatory filtering amendment and Senator Santorums mandatory user policy amendment as part of a major appropriations bill.291 After enacting McCains Childre ns Internet Protection Act and Santorums Neighborhood Childrens Internet Pr otection Act, Congress deleted neighborhood 287 Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 20 U.S.C. 9134 (f)(7)(A) and 47 U.S.C. 254(h)(7)(F)). 288 18 U.S.C. 2256(8). [C]hild pornography means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or pict ure, whether made or produced by electronic, mechanical, or other means, of sexually explicit co nduct, where(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct. Id. 289 For the text of the Miller obscenity test, see supra n. 286. 290 Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as 20 U.S.C. 9134(f)(7)(B)). 291 See H.R. 4577, Consol. Appropriations Act, 2001, 106th Cong. (2d Sess. June 27, 2000). 285

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286 from the title of the acts and referred to both pi eces of legislation as the Childrens Internet Protection Act, as did the two courts h earing challenges to the CIPA in 2002 and 2003.292 292 Both the U.S. District Court for the Eastern District of Pennsylvania and the United States Supreme Court referred to the enacted legislation as the Childrens Internet Protection Act. See Am. Library Assn v. United States, 201 F. Supp. 401 (2002) and United States v. Am. Library Assn 539 U.S. 194 (2003).

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CHAPTER 7 COURT DECISIONS ON THE CHILDR ENS INTERNET PROTECTION ACT Introduction After Congress enacted the Childrens Internet Protection Act in 2000, its constitutionality as applied to public libraries was challenged in lawsuits by the American Library Association (ALA), the American Civ il Liberties Union, state library associations, individual public libra ries, library patrons a nd Web site publishers.1 The plaintiffs argued that the Childrens Internet Protection Act (CIPA) was facially unconstitutional because the CIP induced libraries to violate the First Amendment rights of their patrons. Th e plaintiffs said the CIPA was overbroad because the law censored a substantial amount of protected speech and created a prior restraint. A 2 The plaintiffs also argued that th e legislation was unconstitutionally vague.3 Finally, the plaintiffs argue d that the CIPA required libr aries to give up their First Amendment rights in order to receive federal funding, thereb y making the Act impermissible under the doctrine of unconstitutional conditions.4 Federal District Court Holds the CIPA Unconstitutional In 2002, the U.S. District Court for the Eastern District of Pennsylvania consolidated the cases and held that the Childrens Internet Protection Act violated the First Amendment.5 The court said the law was content-based because Internet filters, by their very nature, would restrict 1 The plaintiffs did not challenge the application of the Ch ildrens Internet Protection Ac t to schools. The CIPA, as applied to schools, is beyond the scope of this dissertation. 2 Am. Library Assn v. U.S., 201 F. Supp. 2d 401, 452 (E.D. Pa. 2002) 3 Id. at 407 (citing City of Chicago v. Morales, 527 U.S. 41 (1999)). It is established th at a law fails to meet the requirements of the Due Process Clause if it is so vague a nd standardless that it leaves the public uncertain as to the conduct it prohibits . Morales 527 U.S. at 57 (quoting Giaccio v. Pennsylvania, 38 2 U.S. 399, 402-03 (1966)). 4 Am. Library Assn v. U.S., 201 F. Supp. 2d at 407. 5 Id. at 411. 287

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access to online material based on subject matter.6 The court said that filters block both protected and unprotected speech, thus resulting in unconstitutional content-based restrictions.7 The court found that because of limitations inherent in f iltering technology, public libraries adhering to the CIPAs conditions would be in violation of the First Amendment as the statute would restrict patrons' access to a substantial amount of protected speech.8 As a result of this finding, the court said it did not need to d ecide whether the CIPA would eff ect a prior restraint on speech or whether it was unconstitutionally vague.9 In reaching its decision, the district court analyzed the role of public libraries and librarians, the capacity and st atus of filtering technology, and the First Amendment and public forum doctrine. However, filtering technology was the primary focus of the trial, the court stated.10 6 Id. at 454. 7 Id. at 410-48. 8 Id. at 411. 9 Id The district court, in trying to explain why it did not have to decide the issues of prior restraint or vagueness, said it had invalidated the CIPA on the grounds that filteri ng software had severe limitations and less restrictive alternatives were available. For exam ple, the court said librarians could us e privacy screens or recessed monitors. Id. at 484. The court also said that librarians could monitor patrons and sanction patrons who violated the librarys Internet use policy. Id. at 490. The district court wrote: Hence, even under the stricter standard of facial invalidity proposed by the government, which would require us to uphold CIPA if only a single library can comply with CIPA's conditions without violating the First Amendment, we conclude that CIPA is facially invalid, since it will induce public libraries, as state actors, to violate the First Amendment. Because we hold that CIPA is invalid on these grounds, we need not reach the plaintiffs' alternative theories that CIPA is invalid as a prior restraint on speech and is unconstitutionally vague. Id. at 490. 10 Id. at 408. 288

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Role of Public Libraries In addressing public libraries, the court said that libraries provide information to patrons for educational, recreational, professional and other purposes.11 The mission of public librarians is to provide their patrons with a wide arra y of information, the district court wrote.12 Librarians adhere to professional standards and local acquisition developmen t policies when they purchase materials for the librarys collections, according to the court. Librarians also use selection aids, such as bibliographies and review journals, to acquire materials that meet the librarys collection development criteria.13 Librarians sometimes delegate thei r selection decisions to third-party vendors, who acquire print and video resources fo r the library based on the librarys collection development criteria, the court said.14 A public librarys collection development criteria typically reflect the librarys evaluation of the materi als quality and patrons demand for material.15 According to the court, Many pub lic libraries include sexually explicit materials in their print collection, such as The Joy of Sex and The Joy of Gay Sex.16 The court said that few libraries would carry graphic sexually explicit materials, such as Hustler Magazine or XXX-rated videos.17 The Use of Filtering Technology In discussing online pornography and Internet usage in public libraries, the district court acknowledged that the volume of online pornography is huge and th at public library patrons of 11 Id. at 420. 12 Id. at 421. 13 Id. For a complete discussion of the public librarys role in America, see Chapter 2. 14 Id 15 Id at 462. 16 Id. at 420. 17 Id. (emphasis added). 289

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all ages have sought access to it.18 The court said it was sympa thetic to the governments position in wanting to prevent library patrons fr om accessing visual depict ions that are obscene, child pornography or harmful to minors, which was the content specified under the Childrens Internet Protection Act.19 However, the court found that fi ltering technology both underblocked and overblocked content. Filtering software underblocked content because the filters failed to block a substantial amount of sp eech that the filters were designed to block, including sexually explicit Web pages and the cate gories of content defined by the CIPA, according to the court.20 The court also found that filtering programs ove rblocked content by preventing users from accessing a huge amount of speech that is covered by the First Amendment.21 Evidence introduced in the district court trial showed that between 6% and 15% of blocked Web pages contained no material that met the filtering comp anies definitions of se xually explicit content.22 Filtering software programs miscategorized a vari ety of legitimate sites, including those covering religious groups, government entities, health is sues, education, careers, travel and sports.23 Examples of overblocked Web sites included si tes hosted by the Knights of Columbus, Vision Art Online (which sells wooden religious wall hangings), Wisconsin Right to Life, a Jewish lesbian and gay group, an amputee support group, a California libertarian candidate, a bed and 18 Id at 406. 19 Id at 410. 20 Id. at 406, 410, 431, 448. 21 Id. at 448. 22 Id at 475-76. 23 Id at 446-50. 290

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breakfast resort, and a home schooling group.24 Most filtering companies do not re-review Web sites, resulting in both overbl ocking and underblocking of content as well, the court said.25 Filtering software designers do not seek input from legal scholars or attorneys before material is categorized as obscenity, child po rnography, or harmful to minors. In addition, filtering software designers do not include local community standards when categorizing content.26 The district court said the lack of legal standards and legal definitions that software developers used in analyzing content was problem atic because the filtering softwares blocking criteria or categories did not match the lega l definitions of obscenit y, child pornography, or harmful to minors. [T]he blocking software is (a t least for the foreseeable future) incapable of effectively blocking the majority of materials in the categories defined by CIPA without overblocking a substantial amount of materials, the court wrote.27 The court also pointed out that because of the nature of proprietary software, librarians do not participate in filtering decisions.28 Although librarians would be ab le to choose categories of content to block, such as nudity, violence or hate speech, they would not know exactly which Web sites had been blocked because software deve lopers made those determinations. Therefore, the district court found that the librarians use of filters is not a co llection decision because librarians and their third party delegates are not making selection decisions based on typical library standards and collection policies.29 For non-Internet collections, such as printed materials 24 Id at 446-47. 25 Id at 435. 26 Id at 429. 27 Id. at 410. 28 Id at 462. 29 Id at 462-64. For a discussion of library acquisition policies, see supra Chapter 2, pp. 50-52. 291

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and audio-video resources, librarians do particip ate in acquisition decisions, a process which is subject to rational basis review.30 A public librarys collection development criteria typically reflect the librarys evaluation of the materi als quality and patrons demand for material.31 Because of limited storage space and funding, libra rians routinely make content-based decisions when choosing some materials over others, a proce ss subject to rational basi s review, rather than strict scrutiny, the court said.32 The First Amendment and Public Forum Doctrine The district court determined that public fo rum analysis applied to public libraries, but then had to determine which type of forum applie d to which part or parts of the library. As the district court stated, the U.S. Supreme Court has defined three t ypes of fora. A traditional public forum consists of streets and parks have imme morially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and disc ussing public questions.33 A limited, or designated, public forum consists of public property whic h the State has opened for use by the public as a place for 30 Id. at 454, 462. Under the rational basis test, a court will hold a law valid if there is a reasonable relationship between a legitimate government objective and the means used to reach that objective. See Cornelius v. NAACP Legal Defense Fund, 473 U.S. 788, 808 (1985). The CIPA district court stated that librarians routinely make content-based decisions that adhere to professional standards and local acquisition development policies when acquiring materials. When librarians designate some of their acquisition decisions to third-party vendors, those vendors also adhere to the librarys acquisition policies. Id. at 421, 462. 31 Am. Library Assn v. U.S., 201 F. Supp. 2d 401, 462 (E.D. Pa. 2002) Librarians make acquisition decisions based on the librarys mission statement and community preferences. Id. at 420, 462. According to the American Li brary Association, No library can make everything available, and selection decisions must be made. Selection is an inclusive process, where the library affirmativ ely seeks out materials which will serve its mission of providing a broad diversity of points of view and subject matter. See Am. Library Assn, Intellectual Freedom and Censorship Q & A, http://www.ala.org/ala/aboutala/offices/oif/basics/ifcensorshipqanda.cfm (last visited July 20, 2009). 32 Am. Library Assn v. U.S., 201 F. Supp. 2d at 408-09 33 Id. at 454-55 (citing Hague v. CIO 307 U.S. 496, 515 (1939)). 292

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expressive activity.34 Examples of a limited public forum are a library meeting room, a state university meeting room, a municipal audito rium and a school board meeting. The third category, a nonpublic forum, consists of all remain ing public property that is not generally open to the public for expressive activities,35 such as jails, prisons, military bases and airports.36 The district court determined that a forum an alysis applied to Inte rnet access in public libraries and not to printed materials or other media, such as video recordings.37 The court cited three U.S. Supreme Court cases as support for a pplying public forum doctrine to a part of the library and not to the whole library. In Cornelius v. NAACP,38 the Supreme Court held that the relevant forum was a charity drive and not an entire federal workplace.39 In Perry Education Association v. Perry Local Educators Association,40 the Court found that the relevant forum was the school districts mail system and t eachers mailboxes and not the public school as a whole.41 In Widmar v. Vincent,42 the Supreme Court held that the relevant forum was a state 7, 46 (1983)). ntl Soc'y for Krishna Consciousness v. Lee 505 U.S. 672 (1992)). al n First endment. The government restrictions were viewpoint neutral and reasonable so as to avoid the appearance of Cornelius 473 U.S. at 809-12. EA nd 34 Id. at 455 (citing Perry Educ. Assn v. Perry Local Educators Assn 460 U.S. 335 Id (citing I36 Id at 457. 37 Id at 456. 38 Cornelius v. NAACP 473 U.S. 788 (1985). 39 Am. Library Assn v. U.S., 201 F. Supp. 2d at 456 (citing Cornelius, 473 U.S. at 801). Legal defense and politic advocacy organizations challenged the validity of a presidential order wh ich excluded such groups from participating in an annual charity drive aimed at federal employees and conducted in a federal workplace during working hours. The organizations said that the presiden tial order violated their First Amendment rights to solicit charitable contributions. In a 4-3 vote, with two justices not participating, the Supreme Court said that the campaig was a nonpublic forum and that access could be restricted on the basis of subject matter without violating the Am political favoritism and to avoid any potential controversy in the workplace40 Perry Educ. Assn v. Perry Local Educators Assn 460 U.S. 37 (1983). 41 Am. Library Assn v. U.S., 201 F. Supp. 2d at 456 (citing Perry 460 U.S. at 74). The PEA union was voted in as the exclusive bargaining repr esentative for the school districts teachers. The collective bargaini ng agreement stated that no other unions, including PLEA, a rival union, would have access to the schools mail system, although PL and other unions could use other school facilities to communi cate with teachers. PLEA, the rival union, challenged the mail system provision, arguing that the provision violated the First Amendment. PLEA argued that the mail system was a limited public forum because private groups that were not connected to the school used the system a 293

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universitys meeting facilities and not the campus as a whole.43 Although these cases dealt with a problem of identifying the relevant forum where speakers are claiming a right of access, we believe that the same approach applies to id entifying the relevant forum where the parties seeking access are listeners or readers, the CIPA district court wrote. in public libra ries as both a designated, or limited nt had 44 The CIPA district court labele d Internet access public forum and a traditional public fo rum. The court wrote, When the government provides Internet access in a public library, it has created a designated public forum.45 In labeling Internet access a designated public forum, the district court said that the governme opened Internet use in public lib raries for use by the public for expressive activity.46 The because PLEA had had prior un restricted access to the system before the collective bargaining vote. In a 5-4 vote, the Supreme Court ruled in favor of the PEA, the incumbent union, stating that the mail system provision did not violate the First Amendment. The Court said that the inter-school mail system was a nonpublic forum. The Court said that even though the mail system had been opened for periodic use by church and civic organizations and even though PLEA was allowed to use the mail system before the collective bargaining vote, the mail system could not be construed as a limited public forum. In authoring the Courts opinion, Justice Byron White wrote, Implicit in the concept of the nonpublic forum is the ri ght to make distinctions in access on the basis of subject matter and speaker identity. These distinctions may be impermissible in a public forum but are inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property. The touchstone for evaluating these distinctions is whether they are reasonable in light of the purpose which the forum at issue serves. Perry, 460 U.S. at 49. 42 Widmar v. Vincent 454 U.S. 263 (1981). 43 See id. at 277. A state university impl emented a regulation that banned religious groups from meeting in university meeting rooms that were open to other student groups. In an 8-1 decision, the Supreme Court held that the universitys policy violated the First Amendment because the policy was not content-neutral. Id. at 277. The Court said that the university had created a limited public forum by opening its meeting rooms to student groups. Id. at 267-68. Justice Lewis Powell wrote that, Having created a forum generally ope n to student groups, the University seeks to enforce a content-based exclusion of religious speech. Its exclusionary polic y violates the fundamental principle that a state regulation of speech should be contentneutral, and the University is unable to justify this violation under applicable constitutional standards. Id. at 277. 44 Am. Library Assn v. U.S., 201 F. Supp. 2d at 456 (emphasis in original). 45 Id. at 457 (citing Mainstream Loudoun v. Bd of Trustees of Loudoun County Library, 24 F. Supp. 2d 552, 563 (E.D. Va. 1998) & Kreimer v. Bureau of Police 958 F. 2d 1242, 1259 (3d Cir. 1992)). 46 Id. (quoting Perry 460 U.S. at 45). 294

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court said that libraries int entionally open their doors to vast amounts of speech when providing patrons with Internet access.47 The court said, in contrast to th e rational basis review that the district co urt said librarians were entitled to use when making deci sions on acquiring their print collections,48 strict scrutiny was applicable to mandatory Internet filtering in public libraries.49 In providing patrons even with filtered Internet access, a public library in vites patrons to access speech whose content has never been reviewed or recommended as particularly valuable by either a librarian or a third party to whom the library has delega ted collection development decisions.50 Where the government creates a designated public forum to facilitate private speech representing a diverse range of viewpoints, the governments decision to selectively single out pa rticular viewpoints for exclusion is subject to strict scrutiny, the court wrote.51 In labeling Internet access a trad itional public forum, the district court stated that public libraries provision of Internet access promotes First Amendment values in an analogous manner to traditional public fora, su ch as sidewalks and parks,52 where a principal purpose [is] the free exchange of ideas.53 Similarly, public libraries are designed for freewheeling inquiry54 47 Am. Library Assn v. U.S., 201 F. Supp. 2d at 463. 48 For an explanation of acquisition policies, see supra notes 11-17 and accompanying text. See also supra Chapter 2, pp. 50-52. 49 Am. Library Assn v. U.S., 201 F. Supp. 2d at 461, 470-71. 50 Id. at 421, 463. The court said that the rational basis test does not apply to Inte rnet access as it would when librarians use editorial discretion or delegate editorial discretion in se lecting books because librarians do not have control over which online resources to acquire when commercial filters ar e used. Third-party vendors typically follow libraries acquisition policies when selecting materials for the libraries. Id. at 421. 51 Id. at 460. 52 Id. at 466. 53 Id. (citing Cornelius v. NAACP 473 U.S. 788, 800 (1985)). 54 Id. at 466 (citing Bd. of Educ. v. Pico 457 U.S. 853, 915 (1982) (Rehnquist, J., dissenting)). 295

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and are a quintessential locus of the receipt of information, according to the CIPA district court.55 By providing patrons with Internet access, th e court said that libraries open their doors to an unlimited number of poten tial speakers around the world.56 The court acknowledged that public libraries [do] not share the historical pedigree of streets, sidewalks and parks as a vehicle of free expression.57 However, the court said that In ternet access shares many of the characteristics of these traditional public fora that uniquely promote First Amendment values, including the right to receive speech.58 For example, public libraries are like sidewalks and parks because they are generally ope n to anyone who wishes to re ceive speech through the print medium or through the Internet, the court said.59 Like a traditional forum, Internet access provides patrons with access to messages from an unlimited number of speakers, according to the court.60 The district court also said th at strict scrutiny applies when Internet access in a public library is considered a traditional public forum.61 The court wrote: Application of strict scrutiny to public libraries content-based restrictions on their pa trons access to the Internet finds further support in the analogy to traditional public fora, such as sidewalks, parks, and squares, in which cont ent-based restrictions are always 55 Id. (quoting Kreimer v. Bureau of Police for Morristown 958 F. 2d 1242, 1255 (3d Cir. 1992)). In Kreimer, the federal appellate court stated that a public library was a de signated public forum. The Third Circuit of the U.S. Court of Appeals wrote, [A] limited public forum, the Library is obligated only to permit the public to exercise rights that are consistent with the nature of the Library and consistent with the governments intent in designating the Library as a public forum. Other activities need not be tolerated. Kreimer, 958 F. 2d at 1262. 56 Am. Library Assn v. U.S., 201 F. Supp. 2d 401, 468 (E.D. Pa. 2002) 57 Id. at 466. 58 Id The court used the terms traditional public forum and non-traditional public forum interchangeably, though the court implied that a non-traditional public forum was a modern version of a traditional public forum. 59 Id. at 467. 60 Id. at 468. 61 Id. at 470. 296

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subject to strict scrutiny. Like thes e traditional public fora, Internet access in public libraries uniquely promotes First Amendment values, by offering low barriers to entry to speakers and listeners.62 Under strict scrutiny, a public librarys use of filtering software is permissible only if it is narrowly tailored to further a compelling intere st and no less restrictiv e alternative would serve that interest, the court wrote.63 In applying the strict scrutiny te st to Internet filtering in publ ic libraries, the district court first looked at the conten t prohibited by the Children s Internet Protection Act.64 The CIPA prohibited all patrons from accessing visual depictions that were obscene or child pornography. The CIPA also prohibited minors from accessing visual depictions deemed harmful to minors.65 The court acknowledged that public libra ries had an interest in preventing patrons from engaging in illegal conduct, such as viewing obs cenity or pornography.66 The court also recognized that the government has a compelling interest in protecting the well-being of its youth.67 The court said that it could justify the use of Internet filters if the filters were narrowly tailored to further the governments compelling interest and if no less restrictive means existed. However, the court could not justify the use of content-based regulations to fulfill the governments compelling interest. [W]e are constr ained to reject any compelling state interest 62 Id. at 489. 63 Id. at 410. 64 Id. at 474-75. 65 20 U.S.C. 9134(f)(1) and 47 U.S.C. 254(h)(6). 66 Am. Library Assn v. U.S., 201 F. Supp. 2d at 474. 67 Id. at 472. 297

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in regulating patrons co nduct as a justification fo r content-based restrictions on patrons Internet access, the court wrote.68 The court said that mandatory Internet filtering was not narrowly tailored to achieve the governments objective because filtering software overblocked a substantial amount of speech not covered under the Children s Internet Protection Act.69 In finding that filtering programs overblocked content, the court said that the software blocked t housands of pages that did not contain visual depictions th at contained obscenity, child pornography, or material deemed harmful to minors.70 The government may not justify rest rictions on constitutionally protected speech on the ground that such restrictions are necessary in order for the government effectively to suppress the dissemination of unprotected sp eech, such as obscenity and child pornography, the court wrote.71 The court also said filtering software underblocked content because the filters failed to block a substantial amount of sp eech that the filters were designed to block, including sexually explicit Web pages and the categorie s of content defined by the CIPA.72 No software exists that can automatically distinguish vi sual depictions that are obsce ne, child pornography, or harmful to minors, from those that are not, the court wrote.73 In addressing the least restrict ive means component of the stri ct scrutiny test, the district court stated that the government failed to show th at less restrictive alternatives were ineffective 68 Id. at 474. 69 Id. at 475-79. 70 Id. at 475. 71 Id. at 477. 72 Id. at 406, 410, 431, 448. 73 Id. at 476. 298

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at furthering the governments compelling in terest in preventing patrons from accessing obscenity, child pornography, and material deemed harmful to minors.74 The district court listed a number of less restrictive altern atives, including user policies, that could clearly state that patrons could not use Internet terminals to access illegal content.75 Or, if a patron violated the user policy, the librarian could issue a warning or revoke Intern et privileges. If the patron accessed obscenity or child pornography, th e librarian could notify the police.76 The court said librarians could monitor patrons usage of the Inte rnet and give them a t ap on the shoulder if they were accessing obscenity or child pornography.77 The court said minors could be required to use unfiltered terminals only in childrens rooms where staff had a direct view of the computers.78 The court said librarians could program minors library cards to allow filtered or unf iltered access to the Internet, based on parental consent.79 To help patrons avoid accidentally acce ssing sexually explicit content, librarians could offer guidance or turn on optional filtering software.80 To help patrons avoid seeing sexually explicit content on othe r patrons computer terminals, li brarians could install privacy 74 Id. at 484. 75 Id. at 480. 76 Id. at 475, 481. The court did not discuss how a librarian would determine if the content contained obscenity or child pornography. 77 Id. at 481-82. The court did not list material deemed harmful to minors when discussing the tap-on-the-shoulder technique. The court also stated that librarians might be uncomfortable monitoring patrons usage of computers. 78 Id. at 482. 79 Id. 80 Id. at 483. 299

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screens or recessed monitors. Librarians also could place unfiltered computers away from high traffic areas and away from filtered computers.81 Under the E-rate program, public libraries must have filtering software in operation even when adults are using computer s for Internet access. However, library personnel may disable but are not required to disablethe filtering so ftware when an adult requests access for bona fide research or other lawful purpose."82 The E-rate program prohibits librarians from disabling filters for patrons who are minors.83 The district court said that the disabling provision does not cure the constitutional deficiencies of the CIPA because the provision was not clear and was not narrowly tailored.84 The district court said the mean ing of the disabling provision was ambiguous because it was unclear whether libraria ns could disable the f ilters anytime an adult wished to access speech that is not restricted by the CIPA, or, in other words, to enable acc to all constitutionally protected material. ess n tatute: 85 The court faulted Congress for choosing language i the disabling provision of the statute that was inconsistent with the language in the banned content provision of the s If Congress intended CIPA's disabling provisions simply to permit libraries to disable the filters to allow access to speech falling outside of these categories, C ongress could have drafted the disabling provisions with greater precision, expressly permitting libraries to disable the filters to enable access for any material that is not obscene, child pornography, or in the case of minors, harmful to minors, rather than to enable access for bona fide 81 Id. However, the court correctly acknowledged that the Ch ildrens Internet Protection Act mandated that filtering software be installed on all computer s. Even the less restrictive alternativ e of allowing unfiltered access on only a single terminal, well out of the line of sight of other patrons, however, is not permitted under CIPA, which requires the use of a technology protection measure on every co mputer in the library, the district court wrote. Id. 82 Id. at 413 (citing Childrens Internet Protection Act 1721(b) (codified at 47 U.S.C. 254(h)(6)(D)). 83 Id. at 412-13. 84 Id. at 484-85, 489. 85 Id. at 485. 300

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research or other lawful purposes which is the language that Congress actually chose.86 The district court also faulted the disab ling provision because it required adults to identify themselves before gaining unfiltered ac cess to the Internet. The Supreme Court has made clear that content-based rest rictions that require recipients to identify themselves before being granted access to disfavored speech are subject to no less strict scrutiny than outright bans on access to such speech, th e district court wrote.87 Because the district court found the CIPA violated the First Amendment by blocking a very substantial amount of protected speech, th e court said it did not need to address the plaintiffs contention that th e CIPA was a prior restraint and was unconstitutionally vague.88 The plaintiffs had argued that the CIPA effected an impermissible prior restraint on speech by granting filtering companies and library staff unf ettered discretion to su ppress speech before it has been received by library patrons and before it has been subject to a judicial determination.89 Congress Spending Clause and Unco nstitutional Conditions Doctrine The court also said it did not need to deci de whether the CIPA violated the doctrine of unconstitutional conditions because the court had already reach ed its decision based on the plaintiffs First Amendment claims, the technolo gical limitations of filtering software, and the 86 Id. 87 Id. at 486 (citing Lamont v. Postmaster Gen. 381 U.S. 301, 307 (1965) (holding that a federal statute requiring the Postmaster General to halt delivery of communist propaganda unless the addressee affirmatively requested the material violated the First Amendment) and Denver Area Educ. Telecomm. Consortium v. FCC 518 U.S. 727, 73233 (1996) (holding unconstituti onal a federal law that required cable operat ors to allow access to patently offensive, sexually explicit programming only to those subscribers who requested access to the programming in advance and in writing)). 88 Id. at 411, 490. 89 Id. at 407. 301

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role of public libraries.90 However, the district court addr essed Congress spending power in relation to the unconstitu tional condition argument, stating, [ W]e are mindful of the need to frame the disputed legal issues and to develop a full factual record for th e certain appeal to the Supreme Court.91 The American Library Association and the othe r plaintiffs had argued that the Childrens Internet Protection Act posed an unconstitutiona l condition on libraries receiving E-rate and LSTA funds by requiring the libraries to surrende r their First Amendment right to provide library patrons with access to constitutionally protected speech.92 The government had contended that the unconstitutional conditions framework did no t apply to the CIPA. The government argued that although public libraries are th e recipient of the funds, libraries are state actors and therefore are not protected by the First Amendment. The g overnment further argued that although library patrons are protected by the Firs t Amendment, library patrons are not the recipient of the funds.93 Under the Spending Clause of the U.S. Constituti on, Congress has the power to tax and spend for the general welfare. 94 At the same time the court chose not to decide the issue of Congress use of its spending power in rela tionship to the Childrens Internet Protection Act, the district court said the question is not an easy one.95 90 Id. at 490-93. 91 Id. at 490. 92 Id. at 490-91. 93 Id. at 491. 94 U.S. CONST., art. I, 8, cl.1. The Congress shall have Po wer To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States. 95 Am. Library Assn v. U.S., 201 F. Supp. 2d 401, 493 (E.D. Pa. 2002) 302

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In 1987, in South Dakota v. Dole,96 the Supreme Court had upheld the constitutionality of Congressional conditions placed on the allocatio n of federal funds designated for government activities.97 Both the government and those challenging the CIPA case agreed that the Dole test provided the most appropriate framework because the CIPA case involved a challenge to Congress spending power.98 However, the government and ot her litigants disagreed on the application of one prong of the four-part Dole test.99 The fourth prong states that congressional sp ending power may not be used to induce the States to engage in activities that would themselves be unconstitutional.100 The government argued that because CIPAs opponents contended the statute was unconstitutional on its face, they had to show that it was not possible for public libraries to meet the requirements of the CIPA without violating the First Amendment.101 CIPAs challengers, on the other hand, contended that the law would i nduce public libraries to violate the First Amendment rights of Internet content providers to disseminate inform ation and the First Amendment rights of patrons 96 South Dakota v. Dole 483 U.S. 203 (1987). 97 Am. Library Assn v. U.S., 201 F. Supp. 2d at 450. In South Dakota v. Dole, the Supreme Court upheld the constitutionality of a federal statute that allowed Congress to withhold a percentage of highway funds from states in which persons under the age of twenty-one could legally buy alcoholic beverages. 483 U.S. at 207-08. The Dole Court said that the highway funding statute was a valid exercise of Congress spending power and the statute did not violate the twenty-first amendment as the statute did not induce the state to violate anyones constitutional rights. Dole, 483 U.S. at 209-11. 98 Am. Library Assn v. U.S., 201 F. Supp. 2d at 450. The Dole Court explained that if South Dakota had raised its drinking age to twenty-one, the state would not be violating anyones constitutional rights. Dole, 483 U.S. at 209-11. 99 Am. Library Assn v. U.S., 201 F. Supp. 2d at 450. According to the four-part Dole test, 1) the exercise of congressional spending power must be in pursuit of the general welfare; 2) conditions attached to federal funds that are allocated to states must be u nambiguous so that states understand the consequences of accepting funds; 3) conditions on federal grants are constitutional only if they rela te to the federal interest in particular national projects or programs (the Dole Court did not clarify this point or provide exam ples to illustrate this point); 4) conditions on the allocation of federal funds may be invalid if other constitutional provisions provide an independent bar to the enforcement of the conditions. Dole, 483 U.S. at 207-08. 100 Am. Library Assn v. U.S., 201 F. Supp. 2d at 450 (citing South Dakota v. Dole 483 U.S. 203, 210 (1987)). 101 Id. at 451. 303

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to access constitutionally-protected speech on the In ternet, and therefore violate the fourth prong of the Dole test.102 The district court said the government can make viewpoint-based funding decisions when the government is the speaker or when the gove rnment uses private speakers to discuss a government program.103 In Rust v. Sullivan ,104 the district court noted, the Supreme Court upheld, under the First Amendment, a federal law prohibiting hea lth care clinics from counseling patients on abortion if the clin ics accepted federal funding.105 However, the district court said that the CIPA case was not like Rust because the Childrens Internet Protection Act was not communicating a government message or auth orizing private speakers to communicate government information. Even with software f ilters in place, the shee r breadth of speech available on the Internet defeats a ny claim that CIPA is intended to facilitate the dissemination of governmental speech, the district court wrote.106 The CIPA district court said that the government could create public institutions, such as art museums, for the dissemination of privat e speech that the government believes to have particular merit.107 For example, the district court cited NEA v. Finley ,108 in which the Supreme Court upheld the use of content-based criteria in awarding grants to artists based on artistic excellence.109 However, the CIPA district court contrasted the Finley case with the CIPA case, 102 Id. at 450-51. 103 Id. at 458. 104 Rust v. Sullivan 500 U.S. 173 (1991). 105 Am. Library Assn v. U.S., 201 F. Supp. 2d 401, 453 (E.D. Pa. 2002). 106 Id. at 493. 107 Id. at 459. 108 Natl Endowment of the Arts v. Finley, 524 U.S. 569 (1998). 109 Am. Library Assn v. U.S., 201 F. Supp. 2d at 459. 304

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stating that the more broadly that government fa cilitates private speech, such as in creating a designated public forum for Internet access in pub lic libraries, any speech restrictions must pass the strict scrutiny test.110 The district court said the CIPA case was not like Rust or Finley but was instead analogous to FCC v. League of Women Voters ,111 Arkansas Writers Project v. Ragland ,112 and Legal Services v. Velazquez .113 In League of Women Voters, the Supreme Court held that the federal government violated the First Amendmen t by imposing a contentbased regulation that prohibited public broadcasters from editorializin g if they received federal funds.114 In Arkansas Writers Project, the Supreme Court rejected as unconstitu tionally content-based a state law that selectively applied sales tax to some types of publications and not others.115 In Velazquez the Supreme Court held unconstitutional a funding rest riction on Legal Services Corporation, that prevented attorneys from representing clients trying to challenge existing welfare law and disrupted the ordinary func tion of the court system.116 Similarly, the district court said that the Ch ildrens Internet Protec tion Act violated the First Amendment by interfering with the public libraries role in provi ding the public with 110 Id. at 460-61. 111 FCC v. League of Women Voters 468 U.S. 364 (1984). 112 Ark. Writers Project v. Ragland 481 U.S. 221 (1987). 113 Legal Servs. Corp. v. Velazquez 531 U.S. 533 (2001). 114 Am. Library Assn v. U.S., 201 F. Supp. 2d at 492-93 (citing FCC v. League of Women Voters 468 U.S. 364, 366, 402 (1984)). 115 Id. (citing Ark. Writers Project v. Ragland, 481 U.S. 221, 223 (1987)). The Supreme Court held that the Arkansas state government violated the First Amendment by subsidizing newspaper [sic] and religious, professional, trade, and sports journals and not subsidizing general interest magazines. Id. (quoting Ragland 481 U.S. at 223). 116 Velazquez, 531 U.S. at 542. In authoring the Velazquez opinion, Justice Anthony Kennedy wrote that the LSC program was designed to facilitate private sp eech, not to promote a governmental message. 305

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controversial, yet constitu tionally protected material.117 The court also said the CIPA distorts the usual functioning of public libraries because the CIPA re quired libraries to 1). Deny patrons access to constitutionally protected speech that libraries would otherwise provide to patrons; and 2). Delegate decision making to pr ivate software developers who closely guard their selection crite ria as trade secrets and who do not purport to make their decisions on the basis of whether the blocked Web sites are constitutio nally protected or would add value to a public librarys collection.118 Although the district court did not decide the unconstitutional conditions issue, it said the American Library Association and others cha llenging the CIPA had good arguments to support their claim. They had good arguments they co uld assert on appeal by relying on the First Amendment rights of either the public libraries or their patrons, according to the court. They also had a good argument that the CIPAs requirement that public libraries use filtering software distorted the usual functioning of public librari es to the extent that the law constituted an unconditional condition on the receipt of funds, the district court said.119 Supreme Court Upholds the CIPA In an expedited review in 2003, the U.S. S upreme Court reversed the judgment of the federal district court on a 6-3 vote and upheld the Childrens Internet Protection Act.120 Although the justices were not able to agree on one opinion, six agreed that the Childrens Internet Protection Act did not violate the Constitution.121 117 Am. Library Assn v. U.S., 201 F. Supp. 2d 401, 493 (E.D. Pa. 2002) 118 Id. 119 Id 120 United States v. Am. Library Assn, 539 U.S. 194, 198 (2003). The Childrens Internet Protection Act provided for expedited review; thus, the parties losing in federal dist rict court could directly ap peal their case to the United States Supreme Court, which they did. See 47 U.S.C. 54 (2000). 121 United States v. Am. Library Assn 539 U.S. at 214. 306

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Chief Justice William Rehnquist authored the plurality opinion122 and was joined by Justices Sandra Day OConnor, Ant onin Scalia and Clarence Thomas.123 Justices Anthony Kennedy and Stephen Breyer concurred in the judgment only, and each wrote a separate concurring opinion.124 Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg dissented. Stevens wrot e one dissenting opinion125 and Souter, joined by Ginsburg, wrote a separate dissenting opinion.126 In the plurality opinion, Chief Justice Rehnqui st explained that Congress enacted two types of federal assistance to aid schools and public libraries with ac quiring technology: the universal service, or E-rate program, and the Library Services Technology Act. The E-rate program, established under the Telecommunicati ons Act of 1996, allows qualifying libraries to purchase Internet access at a discounted rate.127 The Library Services and Technology Act (LSTA) provides funding to libraries so that they can access information electronically and fund acquisition or sharing of computer systems and telecommunication technology.128 According to a Senate Conference Report quot ed by Justice Rehnquist, the purpose of the LSTA is to stimulate excellence and promote access to learni ng and information resources in all types of libraries for individuals of all ages.129 In authoring the Supreme Courts opinion on the CIPA, 122 Id. at 198. Only four justices signed onto the Courts op inion. Two other justices agreed with the judgment only and wrote separate concurring opinions. Three justices dissented. Id. at 215, 220. 123 Id. at 198. 124 Id. at 214 (Kennedy, J., concurring) & 215 (Breyer, J., concurring). 125 Id. at 220 (Stevens, J., dissenting). 126 Id. at 231 (Souter, J., dissenting). 127 Id at 199 (plurality opinion). 128 Id. 129 Id. at 212 (quoting S. REP. NO. 105-226 at 5 (1998)). 307

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Rehnquist wrote, Congress became concerned th at the E-rate and LSTA programs were facilitating access to ille gal and harmful pornography in public libraries.130 The Use of Filtering Technology Rehnquist disagreed with the dist rict courts assessment that congressional goals needed to be met with less restrictive alternatives to filtering or blocking software. The goals of the CIPA were to restrict all library patrons from accessing visual images that constituted obscenity and child pornography and to restrict minors from accessing visual images that would be harmful to minors.131 We require the Government to employ the least restrictive means only when the forum is a public one and strict scrutiny applies and such is not the case here, Rehnquist wrote.132 In addressing the filtering softwares problem of ove rblockingthat is, blocking access to constitutionally-protected speechthe S upreme Court said if erroneous blocking did present constitutional difficulties, adult patrons could ask a librarian to unblock a Web site. Adult patrons also could ask a librarian to disab le a filter altogether t o enable access for bona fide research or ot her lawful purposes.133 The Court did not see a pr oblem with patrons having to identify themselves when asking for unfiltere d access to the Internet. The Constitution does not guarantee the right to acquire informati on at a public library without any risk of embarrassment, Rehnquist wrote.134 130 Id. at 200. 131 Am. Library Assn v. United States, 201 F. Supp. 2d 401, 410 (E.D. Pa. 2002). 132 United States v. Am. Library Assn, 539 U.S. 194, 207 (2003). 133 Id. at 209 (citing 20 U.S.C. 9134 (f)(3)). 134 Id. at 209. 308

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The Congressional Spending Clause The Supreme Court held that the Childrens In ternet Protection Act di d not violate library patrons First Amendment rights and did not plac e an unconstitutional burden on public libraries. The Court held that the CIPA was a valid exer cise of Congress spe nding powers and did not impose an unconstitutional condition on public libraries.135 The Court stated the CIPA did not directly regulate private conduct; rather, Congress has exercised its Spending Power by specifying conditions on the receipt of federal funds.136 Historically the Supreme Court has interpreted Congress spending power broadly.137 The Court stated that it is within Congress spending power granted in the Constituti on to pass laws such as the CIPA.138 The Court said that the government can define the parame ters of the programs that it funds139 and insist that public funds be spent for the purposes for which they were authorized.140 Rehnquist wrote that Congress has wide latitude to attach conditions to the receipt of federal assistance in order to 135 Id. at 214. 136 Id. at 203. 137 See Janelle A. Weber, The Spending Clause: Funding a Filth-Free Internet or Filtering out the First Amendment? 56 FLA. L. REV. 471, 472 (2004). 138 United States v. Am. Library Assn 539 U.S. at 203. The Court pointed to previous holdings as support, including: Rust v. Sullivan, 500 U.S. 173, 194 (1991) (p rohibiting the use of federal funds in family planning services that provided abortion counseling) ; Natl Endowment for the Arts v. Finley 524 U.S. 569 (1998) (upholding an art funding program requiring the NEA to make funding decisions based on content-based criteria); Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 542 (2001) (holding that a funding restriction on Legal Services Corporation, which prevents attorneys from representing clients in an attempt to amend or challenge existing welfare law, violated the First Ame ndment.) Justice Kennedy wrote for the Velazquez Court that, As we have pointed out, it does not follow that viewpoint-based restrictions are proper when the [government] does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers . [T]he LSC program was desi gned to facilitate private speech, not to promote a governmental message. 139 United States v. Am. Library Assn 539 U.S. at 211. 140 Id. (citing Rust v. Sullivan, 500 U.S. 173, 194 (1991) (holding that the government could prohibit federallyfunded family planning providers from using such funds for abortion counseling)). 309

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further its policy objectives141 but Congress may not induce the recipient to engage in activities that would themse lves be unconstitutional.142 Justice Rehnquist compared the CIPA case with previous decisions that upheld congressional spending power. In Rust v. Sullivan143 the Court upheld a law that prohibited the use of federal funds in family planning se rvices that provided abortion counseling.144 In Rust, the Supreme Court held that the government [w as] not denying a benef it to anyone, but [was] instead simply insisting that public funds be spent for the purposes for which they were authorized, Rehnquist wrote in the CIPA opinion.145 Rehnquist said the CIPA case was analogous to Rust Rehnquist said, The E-rate and LSTA programs were intended to help public libraries fulfill their traditional role of obtaining material of requisite and appropriate quality for educational and informational purposes.146 Rehnquist wrote: Congress may certainly insist that these public funds be spent for the purposes for which they were authorized . [B]ecause public libraries have traditionally excl uded pornographic material from their other collections, Congress could reasonably impose a parallel limitation on its In ternet assistance programs.147 In contrast, in Legal Services Corporation v. Velazquez,148 the Supreme Court had held unconstitutional a funding restric tion on Legal Services Corporat ion preventing attorneys from representing clients trying to amend or chal lenge existing welfare law. In authoring the 141 Id. at 203 (citing South Dakota v. Dole, 483 U.S. 203, 206 (1987)). 142 Id. (citing Dole 483 U.S. at 210). 143 Rust v. Sullivan, 500 U.S. 173 (1991). 144 Id. at 194. 145 United States v. Am. Library Assn 539 U.S. at 211 (citing Rust v. Sullivan 500 U.S. 173, 194 (1991)). 146 Id. at 211. 147 Id. at 211-12. 148 Legal Servs. Corp. v. Velazquez 531 U.S. 533 (2001). 310

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Velazquez opinion, Justice Anthony Kennedy wrote th at the LSC program was designed to facilitate private speech, not to promote a governmental message.149 In the CIPA opinion, Rehnquist said that the Velazquez Court concluded that the rest riction on advocacy in such welfare disputes would distort th e usual functioning of the legal profession and the federal and state courts before which the lawyers appeared.150 Rehnquist contrasted the Velazquez case to the CIPA case, stating that public libr aries have no comparable role that pits them against the government, and there is no comparable assumption th at they must be free of any conditions that their [government] benefactors might attach to the use of donated funds or other assistance.151 However, even given Congresss broad sp ending authority it may not induce the recipient of government funds to engage in activities that would themselves be unconstitutional, Rehnquist wrote on behalf of the Courts plurality.152 Rehnquist said Congress did not force libraries to install the filtering software but rather refused to subsidize unfiltered Internet access.153 He said libraries must have bro ad discretion in deciding on what material to acquire for patrons.154 The traditional role for public libraries is identifying suitable and worthwhile material; it is no less entitled to play that role when it collects material from the Internet than when it collects ma terial from any other source, Rehnquist wrote.155 Rehnquist referred to two an alogous contexts where governme nt has broad discretion to make content-based judgments in deciding what speech to make available to the public. In 149 Id. at 542. 150 United States v. Am. Library Assn 539 U.S. at 213. 151 Id. 152 Id. at 203 (quoting South Dakota v. Dole 483 U.S. 203, 210 (1987)). 153 Id. at 212. 154 Id. at 204. 155 Id. at 208. 311

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Arkansas Educational Tel evision Commission v. Forbes ,156 the Supreme Court held that a political debate on public television was a nonpublic forum.157 The Arkansas Educational Television Commission (AETC), a state agency that owned and operated a network of noncommercial television stations had excluded an independent candidate from the debate based on time constraints.158 The Supreme Court said that th e AETCs decision to exclude the candidate was a reasonable, viewpoint-neutral exercise of its journalistic discretion.159 In National Endowment for the Arts v. Finley,160 the Supreme Court upheld the NEAs discretion in making content-base d decisions for funding artists.161 In discussing the NEA case in the CIPA opinion, Rehnquist wrote that content-based decisions are a consequence of gran funding for the arts. t 162 The Finley Court did not apply public foru m analysis because it would conflict with NEAs manda te to make esthetic judgments, and the inherently content-based excellence threshold for NEA s upport, Rehnquist wrote in the CIPA opinion.163 The First Amendment and Public Forum Doctrine In CIPA, Rehnquist said that public libraries, like televised debates and arts funding, are not public forums. Re hnquist wrote, The principles underlying Forbes and Finley also apply to a public librarys exercise of judgment in selecting material it provides its patrons . Public library staffs necessarily consider content in 156 Ark. Educ. Television Commn v. Forbes, 523 U.S. 666 (1998). 157 United States v. Am. Library Assn 539 U.S. at 204 (citing Forbes 523 U.S. at 672-73). 158 Forbes 523 U.S. at 670. 159 Id. at 676. 160 Natl Endowment for the Arts v. Finley 524 U.S. 569 (1998). 161 United States v. Am. Library Assn 539 U.S. at 205 (citing Finley, 524 U.S. at 585). 162 Id. 163 Id. (quoting Finley, 524 U.S. at 586). 312

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making collection decisions and enjoy broad discretion in making them.164 Rehnquist said that public forum analysis is incompatible with the di scretion that public libraries must have to fulfill their traditional missions165 of choosing which material to make available to their audiences. The public librarys goal has never been to provide universal coverage, Rehnquist wrote.166 Rehnquist disagreed with the district courts public foru m analysis. Rehnquist said Internet availability in a public library is not a traditional public forum because the Internet has not immemorially been held in trust for the us e of the public and used for the purposes of assembly, communication of t houghts between citizens, and di scussing public questions.167 Rehnquist wrote, We have rejected the view that traditional public forum status extends beyond its historic confines.168 The Internet, as a recent resource, has not been held in trust as a place for the public to assemble and communicate, he said.169 Internet access in a public li brary is not a designated or limited public forum either, said the chief justice in the plurality opinion. 170 To create such a forum, the government must make an affirmative choice to open up its property for use as a public forum, Rehnquist wrote.171 A public library does not acquire Internet terminal s in order to create a public forum for Web 164 Id. 165 Id. 166 Id. at 204. 167 Id. at 205 (citing Intl Socy for Krishna Consciou sness v. Lee, 505 U.S. 672, 679 (1992)). 168 Id. at 206 (citing Ark. Educ. Television Commn v. Forbes, 523 U.S. 666, 678 (1998) (holding that public forum doctrine does not apply to the editorial judgments made by public television stations)). 169 Id. at 205. 170 Id. 171 Id. at 206 (paraphrasing Cornelius v. NAACP, 473 U.S. 788, 802-03 (1985) (describing the types of forums)). 313

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publishers to express themselves any more than it collects books in or der to provide a public forum for the authors of books to speak.172 Rehnquist said public libraries did not establish Internet access to allow private speakers to shar e diverse views. In cont rast, a library provides Internet access to facilitate research, learning, and recreational pur suits by furnishing materials of requisite and appropriate quality.173 Concurrences In a concurring opinion, Jus tice Anthony Kennedy agreed with the judgment of the Court, stating, The statute is not unconstitution al on its face.174 Kennedy wrote that there is little to this case because adults could obtai n unfiltered Internet access by requesting that a librarian disable the filter.175 He said that the district courts statement that unblocking could take days did not appear to be a specific finding.176 However, if some libra ries could not disable the filter or unblock specific Web sites, or if an adult user would be burdened by not being able to view constitutionally protected material, a plaintiff could file an a s applied challenge to the law, Kennedy wrote.177 172 Id. 173 Id. 174 Id. at 215 (Kennedy, J., concurring). 175 Id. at 214 (Kennedy, J., concurring). Kennedy wrote: If, on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay, there is little to this case. The Government represents this is indeed the fact . The interest in protecting young library users from material inappropriate for minors is legitimate, and even compelling, as all Members of the Court appear to agree. Given this interest, and the failure to show that the ability of adult library users to have access to the material is burdened in any significant degree, the statute is not unconstitutional on its face. Id. 176 Id. at 214 (Kennedy, J., concurring). 177 Id. at 215. 314

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In a separate concurring opinion, Justice Step hen Breyer agreed w ith the pluralitys judgment that the CIPA did not violate the Fi rst Amendment and theref ore was constitutional.178 He also agreed with the pluralitys reasoning th at Internet access in public libraries was not a public forum.179 Breyer acknowledged that filtering software could both overblock and underblock content. However, Breyer said, No one has presented any clearly superior or better fitting alternatives.180 In addition, Breyer, like Rehnquist and Kennedy, noted that the CIPA contained a disabling provision. Breyer said the disabling pr ovision provided an important exception that limits the speech-related harm th at overblocking might cause, allowing libraries to permit any adult patron access to an overblocked site.181 Justice Breyer stated that the disabling request process is no mo re onerous than other library practices, such as requiring patrons to file requests for books in closed stacks182 or to file requests for interlibrary loan materials.183 Although Breyer agreed with the plurality in its judgment, he said that he reached his decision in a different way.184 Breyer applied a form of height ened scrutiny to the CIPA to determine whether the act was constitutional. Brey er said that heightened scrutiny supplements strict scrutiny with an approach that is more flexible but nonetheless provides the legislature 178 Id. at 215-16, 220 (Breyer, J., concurring). 179 See id. at 215-16. 180 Id. at 219. 181 Id. 182 Closed stacks are bookshelves and/or rooms not open to the public. Usually a patron receives requested material by giving a librarian sufficient information to get the book for the patron. Closed stacks ordinarily are a security measure, designed to protect expensiv e, rare, or vulnerable parts of a co llective. Sometimes stacks are closed because of limit space for patron browsing. 183 Id. at 219. 184 Id. at 215-16. 315

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with less than ordinary leeway in light of the fact that constitutionally protected speech is at issue.185 Breyer said that heightened scruti ny was useful when complex, competing constitutional interests are potentially at issue or speech-related harm is potentially justified by unusually strong government interests.186 Breyer said the First Amendment did not requir e the application of th e strict scrutiny test to the CIPA because the use of filtering was similar to tr aditional collection development.187 Breyer said the mandatory filtering requirement was a kind of selection restriction, a kind of editing. It affects the kinds and amount of materials that the li brary can present to its patrons.188 Breyer said that libraries often make selec tion decisions, sometimes because it is necessary because of a scarcity of resources, for ex ample, or because of a collection policy.189 Breyer said the two competing interests at stake in the CI PA were protecting minors from accessing material deemed harmful to minors and a llowing adults access to material that would be deemed harmful to minors but not to adults. Br eyer said the CIPA met his heightened scrutiny test because government has a legitimate, and i ndeed often compelling interest in restricting minors from accessing material deemed harmful to minors. In addition, Breyer wrote, the government had a legitimate, and indeed often co mpelling interest in restricting all library patrons from accessing obscenity and child pornography.190 185 Id. at 218. 186 Id. at 217. 187 Id. at 216-17. 188 Id. at 216. 189 Id. at 217. 190 Id. at 218. Although the filtering laws apply only to vis ual depictions that are obscene, child pornography or harmful to minors, Breyer did not make that distinction in his opinion. 316

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Dissents In a dissenting opinion, Justice David Souter, joined by Ruth Bader Ginsburg, stated that the Childrens Internet Protection Act violated the First Amendment because adults would be denied access to nonobscene material harmful to children but lawful for adult examination.191 If the CIPA had applied to only minors, Souter said, he would ha ve upheld the law. He said the Supreme Courts decision in Reno v. ACLU192 established that the government interest in shielding children from exposure to indecent material is compelling.193 However, Souter said, the CIPA would deny access to a substa ntial amount of constitutionally-protected speech.194 Souter said the Childrens Internet Protect ion Act imposed an unconstitutional condition on the Governments subsidies to local libr aries for providing access to the Internet.195 He stated that the CIPAs blocking mandate was an invalid exercise of Congress spending power because the CIPA mandates action by recipien t libraries that would violate the First Amendments guarantee of free sp eech if the libraries took that action entirely on their own.196 If a public library blocked adults Internet access to material harm ful to children, the act would 191 Id. at 233-24 (Souter, J., dissenting). 192 Reno v. ACLU, 521 U.S. 844 (1997). 193 United States v. Am. Library Assn, 539 U.S. 194, 232 (2003) (Souter, J., dissenting) (citing Reno v. ACLU, 521 U.S. 844, 869-70 (1997)). In Reno the Supreme Court struck down two provisions of the Communications Decency Act. The first provision made the knowing transmissi on of obscene or indecent messages to anyone under eighteen a crime. See 47 U.S.C. 223(a)(1). The second provisio n prohibited the knowing sending or displaying to anyone under eighteen of any message that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs. See 47 U.S.C. 223(d). The Court said the CDA was vague because it did not defi ne the terms indecent and patently offensive. The Court also found the Act overbroad and stated that [the CDA] lacks th e precision that the First Amendment requires when a statute regu lates the content of speech. See Reno, 521 U.S. at 874. For a complete discussion of Reno see Chapter 5. 194 Id. at 233-24 (Souter, J., dissenting). 195 Id. at 231. 196Id 317

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be considered censorship, Souter said. The library itself would be imposing an unconstitutional content-based restricti on on adults access to lib rary holdings, he said.197 Souter wrote: [W]e can smell a rat when a library blocks material already in its control, just as we do when a library removes books from its shelves for reasons having nothi ng to do with wear and tear, obsolescence, or lack of dema nd. Content-based blocking and removal tell us something that mere absence from the shelves does not.198 Souter disagreed with the plur alitys treatment of Internet filtering as a selection decision. The Internet blocking here defies co mparison to the process of acquisition, Souter said. Although, he said, libraries traditionally have made choices about what to acquire based on funding, space, and quality and demand of material,199 mandatory filtering is unrelated to limitations of money or space because blocking deci sions are made after th e resource already has been acquired.200 In looking at the quality and dema nd aspects of acquisition decisions, Souter said that mandatory filtering is an unc onstitutional content-based restriction because Internet filtering would deny adul ts access to a part of a library s holdingsonline materials that have already been purchased and are available to patrons. Libraries do not refuse materials to adult patrons on account of their content, he said.201 Souter wrote: The proper analogy therefore is not to passing up a book that might have been bought; it is either to buying a book and then keeping it from adults lacking an acceptable purpose, or to buying an 197 Id. at 234-35. 198 Id. at 241. 199 Id. at 236. 200 Id. at 237. 201 Id. at 238. Libraries have limited patrons access to holdings by imposing constitutional content-neutral regulations, Souter said. For example, libraries commonly li mit access to rare or valuable materials in order to preserve those materials. Id. 318

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encyclopedia and then cutting out pages with anything thought to be unsuitable for adults.202 Souter said librarians would not even be ma king an acquisition or selection decision in choosing the blocking and filtering software. Becaus e the software is proprietary, he said, only software developers know exactly which mate rial has been blocked. Even though librarians could select categoriessuch as nudity or violenceto block, they would not know the actual content blocked in each category.203 Souter said the provision in the CIPA that permitted librarians to disable blocking and filtering for research or other lawful purposes still denied adults access to a substantial amount of unconstitutionally protected speech.204 He said that the disabling provision was superfluous and onerous because of the uncer tainty of its terms. Souter said charging librarians with determining whether a request for information was for lawful purposes would violate the First Amendment because it gran ted librarians unduly broad discretion.205 Souter said librarians dont ask patrons the reason or purpose for requesting other materials in a librarys collection or requesting ma terials through interlibrary loan.206 In a separate dissent, Justice John Paul Stev ens agreed with the pl urality on one point, stating that it is neither inappropriate nor unc onstitutional for a local library to experiment with filtering software as a means of curtailing childrens access to Internet Web sites displaying sexually explicit images.207 However, Stevens argued that the law mandating filtering for all 202 Id. at 237. 203 Id. at 234. 204 Id. at 233-34 (citing 20 U.S.C. 9134 (f)(3) & 47 U.S.C. 254 (h)(6)(d)). 205 Id. at 233. 206 Id. at 235, 241. 207 Id. at 220 (Stevens, J., dissenting) (emphasis added). 319

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library patrons would create a significant prior restraint on adult access to pr otected speech.208 He described mandatory Internet filtering as a law that prohib its reading without official consent.209 Chief Justice Rehnquist, in the opinion for the Court, disagreed with the contention that the CIPA imposed a prior restraint. Rath er, Rehnquist said, a libra rys decision to use filtering software was a collection decision. He sa id public libraries are not required to add material to their collections just because the material is constitutionally protected.210 Neither Rehnquist nor Stevens cited precedent in their comments. Stevens also said the CIPA violated the First Amendment because it required filters to be installed on all computers with Internet access, not just those com puters funded with E-rate discounts.211 He argued that Neither th e interest in suppressing unlaw ful speech nor the interest in protecting children from access to harmful mate rials justified the overly broad federallyfunded restriction on adult access to unprotected speech. 212 He pointed to the Supreme Courts 2002 opinion in Ashcroft v. Free Speech Coalition ,213 in which the Court affirmed that the ban on virtual child pornography214 was unconstitutional. Stevens reminded the Court that it had said 208 Id. at 225 (emphasis added). 209 Id. at 225. 210Id. at 209 (plurality opinion). 211 Id. at 226, 230-31 (Stevens, J., dissenting) (emphasis by Stevens). See also 47 U.S.C. 254(h)(6) and 20 U.S.C. 9134 (f)(1)(b), stating that a public library must enforce the operation of a technology protection measure during patrons use of any computers connected to the Internet. 212 Id. at 222. 213 Ashcroft v. Free Speech Coalition 535 U.S. 234 (2002). 214 Virtual child pornography uses computer-generat ed characters that look like real children. 320

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in Ashcroft that The Government may not suppress lawful speech as the means to suppres unlawful speech. s 215 Justice Stevens argued that overblocking will reduce the ad ult population to reading only what is fit for children.216 Stevens argued that some lib rary patrons would not make specific unblocking requests and therefore the inte rest of authors of bloc ked Internet material in reaching the widest possible audience would be abridged. In response, Rehnquist, in the plurality opinion said that a public librarys purpo se in acquiring Internet access is to provide its patrons with materials of requis ite and appropriate quality, not to create a public forum for Web publishers to express themselves.217 Rehnquist challenged the premise that the CI PA violated the First Amendment because it required public libraries to insta ll filtering software on all comput ers connected to the Internet. Rehnquist wrote that the CIPA doe s not penalize libraries that choose not to install such software, or deny them the right to provide thei r patrons with unfiltered Internet access. Rather, CIPA simply reflects Congress deci sion not to subsidize their doing so.218 Stevens also disagreed with the Courts inte rpretations of three significant cases. Stevens cited the 2001 decision Legal Services Corp. v. Velazquez ,219 when the Supreme Court 215 United States v. Am. Library Assn, 539 U.S. at 222 (Stevens, J., disse nting) (citing Ashcroft v. Free Speech Coal., 535 U.S. 234, 255 (2002)). In Ashcroft the Court upheld the ban on actual child pornography and struck down the ban on virtual child pornography. 216 Id. (Stevens, J., dissenting) (quoting Butler v. Michigan, 352 U.S. 380, 383 (1957)). Stevens also cited Ashcroft v. Free Speech Coalition, 535 U.S. 234, 252 (2002) and U.S. v. Playboy Entertainment Group, 529 U.S. 803, 814 (2000), in which the Supreme Court stated that a blanket ban on constitutionally protected speech cannot be upheld if a less restrictive alternative is available. Stevens also cited Reno v. ACLU 521 U.S. 844, 875 (1997), in which the Supreme Court stated, The governmental interest in protecting children from harmful materials does not justify an unnecessarily broad suppression of speech addressed to adults. Id. at 222 (Stevens, J., dissenting). 217 United States v. Am. Library Assn, 539 U.S. at 209 (plurality opinion). 218 Id. at 212. 219 Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001). 321

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held unconstitutional a funding re striction preventing attorneys from representing clients who wanted to challenge existing welfare law.220 The Velazquez Court said that federal funding that limited the nature of the arguments a nonprofit legal corporation could make on behalf of indigent clients was viewpoint-bas ed content discrimination that violated the First Amendment. The Court had said that the government could not control expression in a way that distorts the functioning of the law.221 In CIPA, Stevens said that the requirement that filtering software be installed on all computers connected to the Internet distorts the role of libraries because filters both overblock and underblock content.222 Stevens stated that the fede ral district court correctly pointed out that filtering tec hnology was imprecise and unable to screen images, a problem that the lower court said was not likely to be remedied in the foreseeable future.223 Because patrons would not even know what has been blocked, they would not know whether to ask for the filtering software to be disabled, Stevens wrote.224 Stevens said the Supreme Court plurality in the CIPA case interpreted Velazquez225 too narrowly. Velazquez is not limited to instances in which the recipient of Government funds might be pitted against the government, Stevens wrote.226 220 United States v. Am. Library Assn, 539 U.S. at 227-28 (Stevens, J., dissenting) (citing Velazquez, 531 U.S. at 543. 221 Id. 222 Id. 223 Id. at 221-22. 224 Id. at 224. 225 Legal Servs Corp. v. Velazquez, 531 U.S. 533 (2001). 226 United States v. Am. Library Assn, 539 U.S. at 227-28 (Stevens, J., dissenting). In Velazquez the Court held unconstitutional a funding restriction on Legal Services Corporation (LSC) preventing attorneys from representing clients trying to amend or challenge existing welfare law. The Velazquez Court said that the LSC program was designed to facilitate private speech, and not to promote a government message. In the CIPA opinion, Chief Justice Rehnquist said that the Velazquez Court concluded that the restriction on advocacy in such welf are disputes would distort the usual functioning of the legal profession and the federal and state courts before which the lawyers 322

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Stevens also argued that the plurality in the CIPA case did not properly interpret Rust v. Sullivan or National Endowment for the Arts v. Finley. The plurality had relied upon Rust v. Sullivan227 for precedent that the Court had allowed Congress to limit funds it allowed, in that case funds for the discussion of means of birth control.228 However, Stevens said, Rust only applies to government speec hthat is, situations in wh ich the government seeks to communicate a message.229 In contrast, Stevens argued, the E-rate and LSTA programs do not subsidize government messages, but rather are designed to provide access to a vast amount and wide variety of private speech.230 Stevens noted that in Rosenberger v. Rector ,231 the Supreme Court stated that Rust would not be applicable in in stances in which the government does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers.232 The Rosenberger court held that a public universitys guideline against funding a re ligious organizations publications constituted viewpoint discrimination and therefore violated the First Amendment.233 appeared. United States v. Am. Library Assn, 539 U.S. at 213. Rehnquist said that, unlike LSC in Velazquez, public libraries have no comparable role th at pits them against the government, and there is no comparable assumption that they must be free of any conditions that their [government] benefactors might attach to the use of donated funds or other assistance. United States v. Am. Library Assn, 539 U.S. at 213. 227 Rust v. Sullivan, 500 U.S. 173 (1991). 228 Id. 229 United States v. Am. Library Assn, 539 U.S. at 228 (Stevens, J., dissenting). 230 Id. at 228-29. 231 Rosenberger v. Rector, 515 U.S. 819, 834-35 (1995) (holding that a public universitys guideline against funding a religious organizations publications constituted viewpoint discrimination and therefore violated the First Amendment). 232 United States v. Am. Library Assn, 539 U.S. at 229 (Stevens, J. dissenting) (citing Rosenberger v. Rector, 515 U.S. 819, 834 (1995)). 233 Rosenberger 515 U.S. at 834-35, 845-46. 323

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Justice Stevens said that Finley234 was not analogous to CIPA because library patrons themselves were not challenging federally impos ed restrictions on thei r access to a federal program. In Finley artists who were denied grants ch allenged as unconstitutional a statute setting forth criteria on how experts administered a fede ral grant program.235 The Finley Court held that the National Endowment for the Arts grant-making process di d not violate the First Amendment, stating, Any content-based considerat ions that may be taken into account in the grant-making process are a conseque nce of the nature of arts funding.236 In Justice Stevens dissent in CIPA, he wrote that, If this were a case in which library patrons had challenged a librarys decision to install and use filter ing, it would be in the same posture as Finley. Because it is not, Finley does not control this case.237 In contrast, under the CIPA Justice Stevens said, the government was imposing restrictions on th e administration of a federal program.238 Stevens also disagreed with the plurality opinion that a federal mandate was the best solution to addressing the problem of online material deemed harmful to children. Stevens said that libraries should be able to make decisi ons on the local level and develop their own approaches,239 thus allowing local officials to ta ilor their responses to local problems.240 To support his argument, Stevens cited a law review article that stated that By allowing the nations libraries to develop their own approaches, they may be able to develop a better understanding of 234 Natl Endowment for the Arts v. Finley, 524 U.S. 569 (1998). 235 United States v. Am. Library Assn, 539 U.S. at 230 (Stevens, J., dissenting) (citing Finley, 524 U.S. at 577). 236 Finley 524 U.S. at 585 (1998). 237 United States v. Am. Library Assn, 539 U.S. at 230 (Stevens, J., dissenting). 238 Id 239 Id. at 224. 240 Id. at 220. 324

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what methods work well and what methods add little or nothing.241 Stevens noted that the district court cited examples of less restrictive local alte rnatives public libraries could implement in place of filtering. Among those id eas was the implementation of local use or parental permission policies, requiring that a pare nt or librarian be present when a child was using an unfiltered computer, or allowing a lib rarian to program a childs library card for unfiltered Internet access, based on a parents written consent. Other options included the installation of privacy screens and recessed monitors. The lower c ourt said local libraries could impose penalties, such as issuing a warning to patrons who violated In ternet use policies or notifying law enforcement officials if patr ons accessed obscenity or child pornography.242 Rehnquist, in the plurality opinion, countered the lower courts and Stevens suggested alternatives to f iltering, stating that they have their own drawbacks. He said that having librarians monitor computer users would be far more intrusive and would risk transforming the librarian from a professional to whom patrons turn to assistance into a compliance officer whom many patrons might wish to avoid.243 Rehnquist said some of the other options discussed by the lower court, such as installing priv acy screens and moving computers to secluded locations in the library, would encour age library patrons to view pornography.244 Justice Rehnquist disagreed w ith Justice Stevens analysis of Congress spending power in the context of the CIPA. Stevens had asked if it would be constitutional for Congress to require mandatory filtering in public libraries rather than allow local libraries to make their own 241 Id. at 224 (citing Gregory Laughlin, Sex, Lies, and Library Cards: The First Amendment Implications of the Use of Software Filters to Control Access to Inte rnet Pornogra phy in Public Libraries, 51 DRAKE L. REV. 213, 279 (2003)). 242 Id. at 223 (citing 201 F. Supp. 2d at 410). 243 Id. at 207 (plurality opinion). 244 Id 325

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decisions that were tailored to local problems. Stevens also had st ated that the pluralitys reliance on Finley245 was misplaced because in Finley unlike in the CIPA, the government was not imposing restrictions on the admi nistration of a federal program.246 In countering Stevens dissent, Rehnquist said that St evens did not ask the right que stion. As the District Court correctly recognized, we must ask whether the condition that Congress re quires would be unconstitutional if performed by the library itself, Rehnquist wrote in the CIPA opinion.247 Therefore, he said, the Dole case provided the appropriate framework because the filtering legislation did not directly re gulate private conduct; rather, C ongress has exercised its Spending Power by specifying conditions on the receipt of federal funds.248 Stevens wrote that in Finley artists who were denied grants challenged a statute setting forth criteria on how experts administered a federal grant program.249 In his dissent in the CIPA case, Justice Stevens wrote, If this were a case in which li brary patrons had challenged a libra rys decision to install and use filtering, it would be in the same posture as Finle y. Because it is not, Finley does not control this case.250 In contrast, under the Childrens Internet Protection Act, the government was imposing restrictions on the administration of a federal program, Stevens said.251 Rehnquist said the Finley case was useful when examining the selection pro cess that libraries use in acquiring materials, 245 Natl Endowment for the Arts v. Finley, 524 U.S. 569 (1998). 246 United States v. Am. Library Assn, 539 U.S. at 229 (Stevens, J., dissenting). 247 Id. at 203 (plurality opinion). 248 Id. 249 Id. at 230 (Stevens, J ., dissenting) (citing Finley, 524 U.S. at 577). The Finley Court held that the National Endowment for the Arts grant-making process did not violate the First Amendment, stating, Any content-based considerations that may be taken into account in the gran t-making process are a conseque nce of the nature of arts funding. Finley, 524 U.S. at 585. 250 United States v. Am. Library Assn, 539 U.S. at 230 (Stevens, J., dissenting). 251 Id. 326

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however. Like the role of the NE A in awarding art grants, libraria ns enjoy broad discretion in making acquisitions decisions, Rehnquist said.252 However, for the use of Congress spending power, Rehnquist said the Dole framework applied.253 Conclusion In 2003, three years after Congr ess enacted the Childrens Internet Protection Act, the U.S. Supreme Court, on a 6-3 vote, reversed a fe deral district courts decision and upheld the act.254 The CIPA requires public libraries and schoo ls receiving federal E-rate and LSTA funds to install filtering tec hnology on all computers conn ected to the Internet.255 The goals of the CIPA were to restrict all library patrons from accessing visual images that were obscene or child pornography and to restrict minors from accessing visual images that would be harmful to minors.256 The Supreme Court disagreed w ith the district courts a ssessment that congressional goals needed to be met with less restrictive alte rnatives to filtering or blocking software. The Supreme Court held that the Childrens Internet Protection Act did not violate library patrons First Amendment rights and did not place an un constitutional burden on public libraries. The Court said that the CIPA was a valid exercise of Congress spending powers.257 Six years after the Supreme Court upheld the Childrens Internet Protection Act, an important question remains: Is the regulatory and technological system established by the CIPA 252 Id. at 205 (plurality opinion). 253 Id. at 203. 254 Id. at 214. 255 Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 20 U.S.C. 9134(f), 47 U.S.C. 254(h)(6)), mandating that a blocking technology measur e be installed on any computer connected to the Internet at libraries receiving E-ra te funding and Library Services and Technology Act (LSTA) funding. 256 United States v. Am. Library Assn, 539 U.S. at 410. 257 Id. at 214. 327

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328 capable of doing what Congress is asking of it ? The next chapter will examine this issue and identify the gaps between law and technology.

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CHAPTER 8 BRIDGING THE GAP BETWEEN LAW AND TECHNOLOGY Introduction In a third attempt to protect minors fr om online pornography, Congress enacted the Childrens Internet Protection Act in 2000.1 Congress first attempted to regulate sexually explicit online content when it passed the Communicatio ns Decency Act of 1996, one portion of the Telecommunications Act of 1996.2 The CDA criminalized the intentional online transmission of child pornography and obscene, indecent,3 and patently offensive material4 to anyone under the age of 18.5 The Supreme Court struck down the statute as unconstitutional in 1997, stating that the CDA was overbroad and vague.6 A year later, Congress passed the Child Online Protection Act of 1998,7 which would have prevented commercial Web site operators from intentionally making sexually explicit Web content available to minors,8 including material that the COPA defined as harmful to minors. 9 In contrast to the CDA, the COPA would have applied only to those materials found on the World Wide Web and not to material located in ot her places on the Internet, such as in e-mail 1 Pub. L. No. 106-554, signed into law on Dec. 21, 2000, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 20 U.S.C. 9134(f) and 47 U.S.C. 254(h)). 2 Communications Decency Act of 1996, Pub. L. No. 104-104, 551; 110 Stat. 56, 133-39 (1996). For a discussion of the CDA, see Chapter 5. 3 47 U.S.C. 223(a)(1)(b). 4 47 U.S.C. 223(d)(1). 5 47 U.S.C. 223 (d)(1)(b) (1996). See Commcns Decency Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, 133-39 (1996); Telecomm. Act of 1996, Pub. L. No. 104-104 551, 110 Stat. 56, 139 (1996). 6 Reno v. ACLU 521 U.S. 844, 864 (1997). 7 Pub. L. 105-277, 112 Stat. 2681 (1998) (codified at 47 U.S.C. 231). 8 Id. 9 See 47 U.S.C. 231(a)(1). 329

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messages, listservs, news groups or live chat rooms.10 The COPA also would have only applied to commercial Web sites,11 whereas the CDA would have applied to commercial, noncommercial and nonprofit online communicatio ns, as well as individuals online communications.12 After a series of court challenges, a U. S. District Court, in 2007, held that the COPA facially violated the Firs t Amendment because the statute was a content-based statute that did not meet the strict scruti ny testthat is, the COPA was not narrowly tailored to meet the compelling government interest of protecti ng minors from material deemed harmful.13 The Childrens Internet Protection Act 14 requires public libraries and most schools receiving federal technology f unds to implement an Internet safety policy and install a technology protection measure, such as blocki ng or filtering software, on all computers connected to the Internet to prevent access to sexually explicit images.15 The safety policy requires libraries and schools to monitor minors online activities and to monitor the operation of a technology protection measure.16 As of 2009, the only technology protection measure available was blocking and filtering software.17 In 2002, a federal district court held that the 10 H.R. REP. NO. 775, 105th Cong. (2d Sess. 1998) at 12. 11 Id. 12 47 U.S.C. 223(d). 13 ACLU v. Gonzales, 478 F. Supp. 2d 775, 809-10, 821 (E.D. Pa. 2007). For a discussion of the district courts opinion, see Chapter 5. 14 Pub. L. No. 106-554, signed into law on Dec. 21, 2000, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 20 U.S.C. 9134 (f) and 47 U.S.C. 254 (h). 15 Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 20 U.S.C. 9134 (f), 47 U.S.C. 254 (h)(6)), mandating that a blocking technology measur e be installed on any computer connected to the Internet at libraries receiving E-ra te funding and Library Services and Technology Act (LSTA) funding. 16 20 U.S.C. 9134(f)(1)(A) and (B), 47 U.S.C. 4( h)(5)(A) and 47 U.S.C. 254(h)(6)(A). For a detailed discussion of the Childrens Internet Protection Act, see Chapter 7. 17 For a discussion of filtering technolo gy, terminology, strengths and limitations, see Chapter 3. 330

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Childrens Internet Protection Act was unconstitutional,18 a ruling that the Supreme Court reversed in 2003.19 However, the Supreme Court ruled that the CIPA could be challenged on an as applied basis,20 which would allow a library patron to file a lawsuit alleging that the law was improperly administered under a specific set of circumstances.21 The overarching purposes of this dissertation are to further public understanding of the role of the public library, analyze the legal and practical aspects of implementing mandatory Internet filtering in public libra ries, and examine the technological and regulatory scheme of the CIPA to determine if it is capable of doing what Congress is asking of it. To that end, this chapter will examine the First Amendment and the role of the public library in providing access to information. Second, this chapter will offer a critique of Internet filtering as it is applied to public libraries. Third, this chapter will evaluate the Supreme Courts efforts and use of tests in balancing three compelling and sometimes competi ng interests: protectin g minors from material deemed harmful, upholding adults access to co nstitutionally protected speech, and upholding the parental right in childrearing. Finally this chapter will offer suggestions for future research. The First Amendment Right to Receive Inform ation and the Role of the Public Library Several theories of the First Amendmen t apply to accessing information in public libraries, as discussed in Chapter 2. The righ t to receive ideas and information and self18 Am. Library Assn v. United States, 201 F. Supp. 2d 401 (E.D. Pa. 2002). See Chapter 6 for a legislative history of the Childrens Internet Protection Act and Chapter 7 for a discussion of the two court cases on the CIPA. 19 United States v. Am. Library Assn, 539 U.S. 194 (2003), revg Am. Library Assn v. United States 201 F. Supp. 2d 401 (E.D. Pa. 2002). 20 United States v. Am. Library Assn 539 U.S. at 215 (Kennedy, J., concurring). 21 The CIPA contains a disabling provision that allows librarians to disable the filter for adults for bona fide research or other lawful purposes. See 47 U.S.C. 254(h)(5)(D) and 47 U.S.C. 254(h)(6)(D)). For a discussion of the Childrens Internet Protection Act and its disabling provision, see Chapter 7. 331

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fulfillment theories are, perhaps, the two most a pplicable theories because they can be applied solely to the recipient of information. William E. Lee stated that the right to r eceive information doctrine is important and useful because it restricts the governments power to interfere with the recipient of the communication.22 Lee said that the Supreme Court has failed to tie the right to receive information and ideas to the recipi ent, independent of the speaker.23 Lee argued it would make more sense to recognize the right to receive information only in situations where a speaker has a right to speak.24 Lee most likely would not apply the ri ght to receive information to public libraries because speakers do not have the right to speak in that venue.25 In contrast, First Amendment scholar Thom as Emerson said that there is a First Amendment right to receive and obtain communica tion, independent of or supplemental to the right of the speaker to communicate information.26 He has argued that th e right to read, listen, or see is so elemental that it de serves full First Amendment protection.27 This right to know is of vital importance in a democratic society28 and is an affirmative right, in contrast to the 22 William E. Lee, The Supreme Court and The Right to Receive Expression, 1987 SUP. CT. REV. 303, 343 (1987). 23 Id. 24 Id. at 344. 25 See Brown v. Louisiana 383 U.S. 131, 142 (1966) (overturning the convictions of five African-American men who were convicted of breach of p eace after staging a peaceful and sile nt protest against segregation). 26 Thomas I. Emerson, Symposium, The First Amendment and the Right to KnowLegal Foundations of the Right to Know, 1976 WASH. U. L. Q. 1, 2 (1976). 27 Id. at 6. 28 Id at 1. 332

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negative right of being free from government interference.29 In Emersons view, the right to know is necessary for self-fulfillment and s hould receive direct constitutional protection.30 Emersons right to know argument31 is applicable to Internet access in public libraries, even though his 1976 seminal article was published more than a decade before Internet access was available to the public. He maintained that the listeners interests may not always coincide with the speakers interests, and therefore the listeners or recipient s interests would have greater weight when they are ba sed upon an independent legal foundation.32 Emerson wrote, The right to read, listen or see is so elemental, so close to the source of all freedom, that one can hardly conceive of a system of free expr ession that does not extend it full protection.33 The Supreme Court has twice applied the right to receive ideas and information doctrine to public libraries in Court plur ality decisions, but did not men tion it when eval uating the CIPA. In Brown v. Louisiana,34 in 1966, Justice Abe Fortas, authorin g the plurality opinion, wrote that a public library [is] a place dedicated to quiet, to knowledge, and to beauty.35 Although Justice Fortas statement did not directly refer to the right to receive information, his reference to knowledge implies the right to receive information and ideas in public libraries. 29 Id. at 2. 30 Id. at 2, 6. 31 Id. at 2. 32 Id 33 Id at 6. 34 Brown v. Louisiana, 383 U.S. 131 (1966) (overturning the convictions of five African-American men who were convicted of breach of peace after staging a p eaceful and silent protest against segregation.) 35 Id at 142. 333

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Nearly two decades later, in 1982, a Supreme Court plurality used the right to receive information doctrine in a case involving a public school library. In Board of Education v. Pico,36 the Court voted 5-4 in holding th at a school board violated the First Amendment when it ordered the removal of books from a junior high school library and senior high school library. Justice William Brennan, who authored the plurality opinion, referred to public libraries and the right to receive ideas and information when he wrote, A school library, no less than any other public library, is a place dedicated to quiet, to knowledge, and to beauty (where) students must always remain free to inquire, to study a nd to evaluate, to gain new maturity and understanding.37 Justice William Rehnquists dissent in Pico supported the public librarys mission in providing access to a wide variety of information and ideas, the very information and ideas that filtering software limits. Rehnquist wrote, Unlike university or public librari es, elementary and secondary school libraries are not designed for freewheeling inquiry; they are tailored, as the public school curric ulum is tailored, to the teaching of basic skills and ideas.38 Lower federal courts also have applied the First Amendment right to receive information doctrine to public libraries.39 In the holding of Kreimer v. Bureau of Police ,40 in 1992, the Third Circuit for the U.S. Court of Appeals found that the local government in Morristown and Morris Township, New Jersey, had made the library a limited public forum for the right to receive 36 Bd. of Educ. v. Pico 457 U.S. 853 (1982). 37 Pico 457 U.S. at 868-69 (citing Brown v. Louisiana 383 U.S. 131, 142 (1966) and Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)). 38 Id. at 915 (Rehnquist, J., dissenting). 39 Kreimer v. Bureau of Police 958 F. 2d. 1242 (3d Cir. 1992); Mainstream Loudoun v. Bd. of Trustees of Loudoun County 24 F. Supp. 2d. 552 (E.D. Va. 1998 ); Am. Library Assn v. United States, 201 F. Supp. 2d 401 (E.D. Pa. 2002). For a discussion of public forum doctrine, see Chapter 2. 40 Kreimer, 958 F. 2d. at 1242. 334

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information, but not for personal ex pression, such as making speeches.41 In Mainstream Loudoun v. Board of Trustees of Loudoun County,42 in 1998, a federal district court judge in Virginia held that library buildings and Intern et access inside the libraries were limited public fora,43 and that patrons had a right to r eceive information through the Internet.44 In Am Library Association v. U.S., erican o a case.48 45 in 2002, the federal district cour t that struck down the Childrens Internet Protection Act st ated that the right to receive information and ideas is fundamental t free society46 and to the role of the public library.47 The Supreme Court, which reversed the district courts ruling in 2003 and upheld the Childrens Internet Protection Act, did not address the right to receive information in the CIPA For more than seventy years, public libraries have supported the patr ons right to receive information. Libraries have encouraged public inquiry by providing open access to all patrons.49 One goal of public libraries is to fight censorship50 in all formats or media.51 For example, the American Library Associations Library Bill of Rights states that libraries should challenge 41 Id. at 1256-63. 42 Mainstream Loudoun, 24 F. Supp. 2d. at 552. 43 Id. at 563. 44 Id. 45 Am. Library Assn v. United States, 201 F. Supp. 2d 401 (E.D. Pa. 2002). 46 Id. at 451 (citing Stanley v. Georgia, 394 U.S. 557, 564 (1969)). 47 Id. at 466. 48 United States v. Am. Library Assn 539 U.S. 194 (2003). 49 See AM. LIBRARY ASSN, LIBRARY BILL OF RIGHTS, available at http://www.ala.org/ala/aboutala/offices/oif/sta tementspols/statementsif/librarybillrights.cfm and http://www.ala.org/ala/aboutala/offices/oif/state mentspols/statementsif/librarybillofrights.pdf 50 See id. 51 See Am. Library Assn, Access to Electronic Information, Services, and Networks: An Interpretation of the Library Bill of Rights, available at http://www.ala.org/ala/aboutala/offices/oif/stateme ntspols/statementsif/interpretations/default.cfm 335

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censorship in the fulfillment of their responsibility to provide information and enlightenment52 and libraries should cooperate with all persons and groups concerned with resisting abridgment of free expression and free access to ideas.53 In addressing minors access to public library materials, the ALAs Library Bill of Rights states that a persons right to use a public library should not be denied or abridged because of age.54 In addressing minors right to receive info rmation, historian and attorney Catherine Ross has stated that, despite the Supreme Courts recognition of minor s First Amendment rights, the Court has not provided much guidance concerni ng the age and circumstances under which a minor may receive information.55 Professor Ross and other comment ators have argued that older minors, which they define as teenagers, ha ve a greater First Amendment rights than younger ones.56 Ross said that teenagers have the right to receive information,57 with or without parental approval,58 and that Internet filters in public libraries interfere with that right.59 According to 52 AM. LIBRARY ASSN, LIBRARY BILL OF RIGHTS, art. III, available at http://www.ala.org/ala/aboutala/offices/oif/sta tementspols/statementsif/librarybillrights.cfm and http://www.ala.org/ala/aboutala/offices/oif/state mentspols/statementsif/librarybillofrights.pdf 53 AM. LIBRARY ASSN, LIBRARY BILL OF RIGHTS, art. IV, available at http://www.ala.org/ala/aboutala/offices/oif/sta tementspols/statementsif/librarybillrights.cfm and http://www.ala.org/ala/aboutala/offices/oif/state mentspols/statementsif/librarybillofrights.pdf 54 See AM. LIBRARY ASSN, LIBRARY BILL OF RIGHTS, available at http://www.ala.org/ala/aboutala/offices/oif/sta tementspols/statementsif/librarybillrights.cfm and http://www.ala.org/ala/aboutala/offices/oif/state mentspols/statementsif/librarybillofrights.pdf 55 Catherine J. Ross, An Emerging Right for Mature Minors to Receive Information, 2 U. PA. J. CONST. L. 223, 22326 (1999). 56 Id. at 224-25. See also Amitai Etzioni, Symposium, Do Children Have the Same First Amendment Rights as Adults?: On Protecting Children from Speech 79 CHI.-KENT. L. REV. 3, 43 (2004); Sidne Koenigsberg, Print Symposium Contract Options for Individual Artists: Library Records Open to Parental Scrutiny: A New Set of Internet Access Controls for Minors?, 29 COLUM. J.L. & ARTS 361, 376 (2006); Gregory Laughlin, Sex, Lies and Library Cards: The First Amendment Im plications of the Use of Software Filters to Cont rol Access to Internet Pornography in Public Libraries, 51 DRAKE L. REV. 253, 254 (2003); Dawn Nunziato, Symposium, Do Children Have The Same First Amendment Rights as Adults?: Toward a Constitutional Regulation of Minors' Access To Harmful Internet Speech, 79 CHI.-KENT. L. REV. 121, 121-22 (2004). 57 Ross, An Emerging Right for Mature Minors, supra note 55, at 224-25. 58 Ross, An Emerging Right for Mature Minors, supra note 55, at 275. 336

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Ross, minors right to receive in formation is most applicable wh en they have autonomy rights regardless of parental preferences. Ross explained that minors have autonomy rights in instances in which they legally are able to make their own decisions without parental permission. Examples of these autonomy rights include the ri ght to exercise individual religious beliefs and the right to contracep tion and sexuality choice.60 Ross and commentator Dawn Nunziato said that although the right to receive does not seem to fully apply to minors, mature minors in particular still need access to diverse information for individua l self-exploration, to develop values and autonomy, and to acquire the tools they will need for self-governance when t reach adultho hey od.61 Columbia University law student Sidne Koenigsberg argued that Ross analysis, while doctrinally sound, is too limited. Koenigsberg stat ed that minors should have freedom in more mundane circumstances, such as when they want to read books or visit Internet sites that advocate ideas or beliefs their parents do not share.62 In 1997, a year before mandatory Internet filte ring bills were introduced in Congress, the American Library Association passe d an anti-filtering resolution, st ating that the use of filtering software to block constitutionally protected speech violates the Library Bill of Rights.63 The American Library Association views Internet fi ltering as censorship, rather than acquisition.64 As 59 Ross, An Emerging Right for Mature Minors, supra note 55, at 262. 60 Ross, An Emerging Right for Mature Minors, supra note 55, at 253-54. 61 Ross, An Emerging Right for Mature Minors, supra note 55, at 223-26 (1999). See also Nunziato, supra note 56, at 155, 161-62. See also Laughlin, supra note 56, at 254. 62 Koenigsberg, supra note 56, at 376. 63 See Am. Library Assn, Resolution on the Use of Filtering Software in Libraries, available at http://www.ala.org/ala/aboutala/offices/oif/sta tementspols/ifresolutions/resolutionuse.cfm 64 See Am. Library Assn, Filters and Filtering, available at http://www.ala.org/ala/aboutala/offi ces/oif/ifissues/filtersfiltering.cfm 337

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discussed in Chapter 2, a major responsibility of li brarians is to acquire materials to add to the librarys collection, including online resources.65 However, because Internet filtering software is proprietary, librarians do not have input into the selection de cisions as they do with other materials. Most software companies do not e xplain what they filter or how they filter,66 and therefore, unlike in th e book selection process, librarians do not know what they are excluding from the online collection of resources. The Supreme Court missed an opportunity to apply the right to receive ideas and information doctrine to Internet access in public libraries when the Court struck down the CIPA in 2003. Prior to the advent of Inte rnet access in libraries, the S upreme Court applied the right to receive information doctrine to school libraries in Board of Education v. Pico.67 Although the Court was evaluating a decision by a school board to remove books from the library, the Courts right to receive information reasoning applies to public libraries as well, as can be seen in the plurality opinion and a dissenting opinion. The plurality emphasized the right to receive information and ideas, stating that the right to receive ideas follows ineluctably from the sender's First Amendment right to send them and is a necessary predicate to the recipient's meaningful exercise of his own rights of speech, press, and politic al freedom. In authoring the plurality opinion, Justice William Brennan wrote, [T]he special characte ristics of the school library make that environment especially appropriate for the rec ognition of the First Amendment rights of students.68 65 See AM. LIBRARY ASSN, LIBRARY BILL OF RIGHTS, available at http://www.ala.org/ala/aboutala/offices/oif/sta tementspols/statementsif/librarybillrights.cfm and http://www.ala.org/ala/aboutala/offices/oif/state mentspols/statementsif/librarybillofrights.pdf 66 See WALT CRAWFORD, BEING ANALOG 227. 67 Bd. of Educ. v. Pico 457 U.S. 853 (1982). 68 Id. at 867 (emphasis of Justice Brennan). 338

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Justice William Rehnquist disagreed with the decision reached in Pico, but his statements supported the public librarys mission in providi ng access to a wide variety of information and ideas. Rehnquist wrote, Unlike university or public librari es, elementary and secondary school libraries are not designed for freewheeling inquiry; they are tailored, as the public school curric ulum is tailored, to the teaching of basic skills and ideas.69 Although the Supreme Court decided Pico prior to the availability of the Internet to libraries, the right to receive in formation applies to Internet access in public libraries and school libraries, just as it applies to books and other resources. Internet reso urces, like books, provide library patrons with access to a vast array of in formation, including some information that is only available online. Patrons using the Internet in public libraries have the same right to receive information through Internet resour ces as through books in order to find a variety of information, including intellectual, political, soci al and entertainment materials. In the CIPA case, the Supreme Court did not addre ss the right to receive information doctrine. The Court also refused to apply public fora doctrine to Internet access in public libraries, perhaps in part because the Court ha s been using a nineteenth century public fora paradigm.70 The Internet should be considered a metaphysical public forum, according to law professor Stephen Gey. Although the Internet do es not have a physical presence, unlike a traditional public forum, Gey said that the Intern et operates as a centralized place where people go to discuss issues, trade information, and peruse words, images, and music. The Internet is, 69 Id. at 915 (Rehnquist, J., dissenting). 70 For a discussion of public fora doctrine, see Chapter 2. 339

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therefore, a forum, Gey wrote.71 As Gey stated in his article Supreme Court Justice Anthony Kennedy had advocated expanding public forum doctrine in 1992.72 Justice Kennedy said the Court should adopt a more modern and objective standard to the public forum doctrine, one that extends beyond the historical designation of streets, parks and sidewalks because their role is diminishing.73 Justice Kennedy wrote that: [w]ithout this recognition our forum doctrine reta ins no relevance in times of fast-changing tec hnology and increasi ng insularity [and] our failure to recognize the possibility that new types of government property may be appropriate forums for speech will lead to a serious curtailment of our expressive activity.74 In 2004, law student Derrick Stomberg said th at the inherently public forum may need to be added as a fourth type of forum.75 This designation would provide protection to new types of properties whose principle purpose is to promote free speech, as Gey and Justice Kennedy stated. The Internet should then be classified as an inherently public fo ra because the Internet is a centralized place where people can look for information and discuss ideas.76 Stomberg argued that the Internet has become the mode rn public forum as it provides speakers and recipients with a primary way of exchanging ideas and information in a centralized place.77 The role of the public library is to provide patrons with access to information, regardless of format or technology, and to challenge censorship in the fulfillment of that responsibility. First 71 Stephen Gey, Reopening the Public Forum-From Sidewalks to Cyberspace, 58 OHIO ST. L.J. 1535, 1618 (1998). 72 Id at 1535, 1555-66. 73 Intl Socy for Krishna Consciousness v. Lee, 505 U.S. 672, 697-98 (1992) (Kennedy, J., concurring in the judgment). 74 Id. 75 Derrick Stomberg, Note, United States v. American Library Association, Inc.: The Internet as an Inherently Public Forum, 45 JURIMETRICS J. 59, 70 (2004). 76 Id. at 71-73. 77 Id. at 71; see also Gey, supra note 71, at 1618. 340

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Amendment jurisprudence supports the role of the library as the S upreme Court and lower federal courts have specifically applied the right to receive information doctrine to public libraries. In addition, the expansion of public fo rum doctrine to apply to Internet access would support the intent of the traditi onal public forum as a place wher e ideas and information can be exchanged. Internet Filtering and Public Libraries To comply with the Childrens Internet Protection Act, librarians must use filtering software on all computers connected to the Internet in an effort to block sexually explicit Internet material. The CIPA focuses on receivers, not senders, and covers images, not words.78 The Communications Decency Act of 1996 a nd the Child Online Protection Act of 1998 were both criminal statutes that focused on the se nders of information and applied to all types of content, not just visual images. The CDA, a part of the Telecommunications Act of 1996, was initiated as a result of the concerns of Sen. James Exon with what he viewed as the ready availability of pornography and indecency on the Internet79 and his desire to protect children from such content.80 A House Conference Report on th e Telecommunications Act of 1996 stated that the federal government has a compelling interest in shielding minors from indecency.81 The CDA criminally prohibited the in tentional transmission, by means of an interactive computer service, any communication cont aining child pornography and obscene or indecent material to anyone under the age y of 18.82 78 Pub. L. No. 106-554, signed into law on Dec. 21, 2000, 114 Stat. 2763, 2763A-335 (2000) (codified as amended at 20 U.S.C. 9134(f) and 47 U.S.C. 254(h). 79 141 CONG. REC. 15503 (June 9, 1995) (statement of Sen. Exon). 80 Id. 81 H. Conf. Rep. on the Telecomm. Act of 1996, H. CONF. REP. 104-458 (2d Sess. 1996) at 188. 82 47 U.S.C. 223. 341

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The Supreme Court struck down the CDAs provi sions that would have restricted minors from accessing online pornography. The Court found the provisions overbroad and vague, and therefore in violation of the First Amendment.83 The Court acknowledged that the government has a compelling interest in protect ing children from harmful materials,84 but said that the government has a heavy burden in explaining why a less restrictive law would not be as effective.85 The Court said that the CDA was not narrowly tailored to meet the government interest.86 In an attempt to remedy the deficiencies of the Communications Decency Act, Congress enacted the Child Online Protection Act87 in 1998. Congress passed the COPA in an effort to restrict minors access to se xually explicit commercial materials on the World Wide Web,88 and to prohibit the sale of sexually explicit materials to minors.89 A 1998 House report stated that minors had ready access to pornographic materials online,90 and parental control protections91 and self-regulation had not provided a natio nal solution to protect minors from online pornography.92 After seven challenges in federal courts, a federal district court, in 2007, granted 83 Reno v. ACLU 521 U.S. 844, 864 (1997). 84 Id. at 875. 85 Id. at 879. 86 Id 87 Child Online Protection Act, Pub. L. No. 105-277, 112 Stat. 2681 (1998) (codified at 47 U.S.C. 231). 88 H. REP. NO. 105-775 (2d Sess. 1998) at 10. 89 Id. at 5, 12. 90 Id. at 8-10. 91 Id. at 9. 92 See H. REP. NO. 105-775 (2d Sess. 1998) at 17. 342

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a permanent injunction prohibiting the government from enforcing the Child Online Protection Act.93 Judge Lowell Reed, who authored the court s opinion, applied the strict scrutiny test, stating that the COPA was content-based.94 He wrote that although the protection of minors from online pornography was a compelling government in terest, the government failed to show that the COPA was narrowly tailored to meet that interest.95 He stated the COPA was overinclusive in that it prohibited more speech than necessary and underinclusive in that it would not apply to sexually explicit content originating outside the Un ited States that would be available to minors in the U.S.96 Reed wrote that the COPA was overly vague because some of the terms were not clearly defined97 and overbroad because protected speech was prohibited.98 93 ACLU v. Gonzales, 478 F. Supp. 2d 775, 821 (E.D. Pa. 2007). 94 Id. at 809. 95 Id. at 810-15. 96 Id. at 810-11. 97 Id. at 816-19. Judge Reed said the terms knowingly and with knowledge of the character of the material and intentionally were not clearly defined. In part, the COPA reads: (a) Requirement to restrict access. (1) Prohibited conduct. Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communicatio n for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $ 50,000, imprisoned not more than 6 months, or both. (2) Intentional violations. In add ition to the penalties under paragraph (1), whoever intentionally violates such paragraph shall be subject to a fine of not more than $ 50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation. See 47 U.S.C. 231(a)(1) & (2). 98 Id. at 819-20. Judge Reed wrote that although the COPA defined a minor as any person under 17 years of age, material that would be patently offensive for an eight-year-old would not be patently offensive for a sixteen-yearold. Similarly, he stated that material that would not have serious literary, artistic, political, or scientific value for a toddler could have such value for a teenager. 343

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Six years after the Supreme Court upheld the CIPA, filtering technology still is not equipped to adequately block access to images. In addition, filters are not able to block all sexually explicit text that may be used as descriptors for sexua lly explicit images. The focus on images only in the CIPA resulted from a joint House-Senate conference committee meeting in 2000. Earlier bills included language aiming to protect minors from all types of content, not just visual images. For example, most of the b ills stated that filtering needed to be used to prevent minors from accessing matte r or material that was inappropriate for or harmful to minors.99 In 2000, the year the CIPA was enact ed, early versions of the CIPA amendment did not specify images only, but rath er would have required the filtering technology to block material that is harmful to minors.100 McCains filtering amendment, introduced in 2000 and upon which the CIPA is based, was modified in committee. His original filter ing amendment, introduced as part of a major appropriations bill, was based on the McCain-Ho llings 1999 bill and would have required the filtering technology to filter or block material deemed to be harmful to minors. Committee action modified the wording to prohibit online acce ss to three types of content: obscenity, child pornography, and any other material inappropriate for minors,101 but the focus was on a broader range of content than just visual images. A joint House-Senate conference committee made additional changes to the filtering proposal. The committee changed material to visual depictions and inappropriate for minors to harmful to minors. The proceedings of the committee meeting were not made 99 See Chapter 6 for a discussion of the legislative hi story of the Childrens Internet Protection Act. 100 Childrens Internet Protection Act, H.R. 4600, 106th Cong. (2d Sess. 2000). 101 Childrens Internet Protection Act, S.Amdt. No. 3610 to H.R.4577, Consol. Appropriations Act, 2001, 106th Cong. (2d Sess. June 22, 2000). 344

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public, and therefore the committees rationale is not on record. However, based on House and Senate concerns with minors access to on line pornography, it is qui te possible that the committee changed the wording to visual depicti ons to deal with congr essional concerns about graphic pornographic videos and images that were readily available online.102 Another major change in the 2000 filtering amendm ent, in contrast to previous bills, was the addition of a definition for th e harmful to minors phrase. Earlier bills did not define the term. The CIPA legislation defined harmful to minors as any picture, image, graphic image file or other visual depiction that (i) taken as a whole and with respec t to minors, appeals to a prurient interest in nudity, sex, or excretion; (ii) depicts, describes, or represen ts, in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and (iii) taken as a whole, lacks serious lite rary, artistic, politic al, or scientific value as to minors.103 Although filtering technology has improved since the enactment of the CIPA, filtering software continues to block conten t that would not be considered sexually explicit or harmful to minors and fails to block content that is sexually explicit or harmful to minors.104 A 2008 study on Internet filters showed that filters still underblocked and over blocked content. The better that the filtering software was at blocking access to h armful material, the worse the software was at allowing access to harmless material.105 The researchers also addr essed the impact of user102 For a discussion of committee hearings and reports on filtering bills, see Chapter 6. 103 Pub. L. No. 106-554, 114 Stat. 2763, 2763A-335 (2000) (codified as 20 U.S.C. 9134(f)(7)(B)). 104 See DELOITTE ENTERPRISE RISK SERVICES, SAFER INTERNET: SYNTHESIS REPORT at 27 (2008). According to the Deloitte study, overblocking occurs when the filter blocks good content, and underblocking occurs when the filter does not block unwanted content. See also MARJORIE HEINS ET AL., BRENNAN CENTER FOR JUSTICE AT N.Y. UNIV. SCHOOL OF LAW, INTERNET FILTERS: A PUBLIC POLICY REPORT 45 (2d ed., 2006); Filtering Software: Better, But Still Fallible, CONSUMER REPORTS, at 36 (June 2005). 105 DELOITTE ENTERPRISE RISK SERVICES, SAFER INTERNET, supra note 104, at 5-10. 345

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generated online content on the effectiveness of filtering software programs. Because Internet users can post photos, videos and other content on interactive sites nearly instantaneously, such as on YouTube and MySpace, filtering software vendors cannot keep up with the changes, the researchers said.106 A major problem with all filtering software is that software vendors, rather than librarians, are making the filtering decisions because filtering software is proprietary.107 When librarians select Internet filtering software, they are not able to base their choices on the librarys collection development policies, as they do in acquiring books and other materials.108 In choosing commercial filtering software, librarians are not able to determine if the filters meet their needs because software compan ies do not disclose their standards.109 Therefore, librarians have no way of knowing which content has been blocked, as the district court noted in its opinion on the Childrens Internet Protection Act of 2000.110 In 2008, the Deloitte researchers suggested that Internet filter s would be more effective if software designers developed a way for the prod ucts users to classify content according to family, religious or social group values, classifi cations that could be shared among users with 106 DELOITTE ENTERPRISE RISK SERVICES, SAFER INTERNET, supra note 104, at 14. 107 Am. Library Assn v. United States, 201 F. Supp. 2d 401, 462-64 (E.D. Pa. 2002). See also Legislative Proposals to Protect Children from Inappropriate Materials on the Internet: Hearing before the Subcomm. on Telecomm., Trade, & Consumer Protection of the H. Comm. on Commerce 105th Cong. 119 (Sept. 11, 1998) at 40 (statement of Jerry Berman, executive director fo r the Center for Democracy a nd Technology, referring to S.1619, the Internet School Filtering Act). 108 See AM. LIBRARY ASSN, BEST PRACTICES IN PUBLIC LIBRARIES, available at http://www.ala.org/ala/shadows/pla/resources/bestpractices.cfm For a discussion of libra ry collection decisions, see Chapter 2. 109 See Legislative Proposals to Protect Children from Inappropriate Materials on the Internet: Hearing before the Subcomm. on Telecomm., Trade, & Consumer Protection of the H. Comm. on Commerce 105th Cong. 119 (Sept. 11, 1998) at 40 (statement of Jerry Berman, executive director for the Center for Democracy and Technology, referring to S.1619, the Internet School Filtering Act). 110 See Am. Library Assn v. United States, 201 F. Supp. 2d 401, 462-64 (E.D. Pa. 2002). For a discussion of the court cases deciding the Childre ns Internet Protection Act, see Chapter 7. 346

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similar beliefs and values.111 However, while a user-classification system might work well for families and schools that potentially share a set of values, the system would not be consistent with the values of public libraries whose patrons may have a broad range of values and beliefs. Another problem with commercial filtering software is that legal scholars and attorneys do not write the filtering software programs. More over, filter software designers do not get input from legal scholars or attorneys before materi al is categorized as obscenity, child pornography, or harmful to minors. In addition, filtering software designers develop products for a national market and do not include local community standards when categorizing content.112 The lack of legal standards and legal definitions that soft ware developers use in analyzing content is especially problematic because the filtering softwares blocking criteria or categories do not match the legal definitions of obscenity, child pornography, or harmful to minors contained in the Childrens Internet Protection Act.113 Although several different companies have developed software packages,114 the filters may give parents and the government a false sens e of security because they do not block all sexually explicit sites and/ or they block perfectly innocent and useful sites.115 Filtering software blocks constitutionally pr otected speech as well. 111 DELOITTE ENTERPRISE RISK SERVICES, SAFER INTERNET, supra note 104, at 5, 15. 112 Am. Library Assn v. United States 201 F. Supp. 2d at 429. 113 For a discussion of filtering technology, see Chapter 3. 114 See Am. Library Assn v. United States 201 F. Supp. 2d at 427-29. 115 See HEINS ET AL., supra note 104; Filtering Software: Better, But Still Fallible, supra note 104 at 36; Leah Wardak, Note, Internet Filters and the First Amendment: Public Libraries After United States v. Am. Library Association, 35 LOY. U. CHI. L.J. 657, 735 (2004); Am. Library Assn, Libraries & the Internet Toolkit (last updated Dec. 9, 2003), at 10, http://www.ala.org/oif/iftoolkits/internet (last visited July 20, 2009); Richard J. Peltz, Use the Filter You Were Born With: The Unconstitutionality of Mandatory Internet Filtering for the Adult Patrons of Public Libraries, 77 WASH. L. REV. 397 (2002); Am. Civil Liberties Union, Censorship in a Box: Why Blocking Software Is Wrong for Public Libraries (Sept. 16, 2002), http://www.aclu.org/privacy /speech/14915pub 20020916.html (last visited July 20, 2009); Kathleen Conn, Commentary: Protecting Children from Internet Harm (Again): Will the Childrens Internet Protection Act Survive 347

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Prior to the adoption of the CIPA, public lib raries had the option of providing unfiltered computer access or installing filtering software on computers. They could have chosen to install filters on only some computers, thus allowing fu ll Internet access on other computers. Under such a system, parents could have chosen whether they wanted their children to have filtered or unfiltered access to the Internet at public librari es. However, the CIPA mandates that filtering technology be installed on all com puters connected to the Internet thus impeding the role of librarians and parents, as well as adults acce ss to some constitutionally-protected speech. The Supreme Court, the Protection of Minors, and Competing Interests In upholding the Childrens Internet Protec tion Act in 2003, the Supreme Court could have taken the opportunity to develop objective criteria for balancing the three competing interests represented in that case: protecting minors from material deemed harmful, protecting adults rights to constitutionally-protected speech, and protecting parents rights to raise children as they see fit. The Court did not try to explain how to balance th e competing interests or if any interests trumped under certain circumstances. An analysis of the competing issues would have been useful to legislators and lower courts in enacting and deciding laws, respectively. Instead, the Court relied on the congressiona l spending clause in upholding the CIPA, stating that the CIPA was a valid exercise of Congress spending powers and did not impose an unconstitutional condition on public libraries.116 In authoring the pl urality opinion, Justice William Rehnquist wrote that the CIPA did not directly regulate private conduct; rather, Judicial Scrutiny? 153 ED. LAW. REP. 469 (July 5, 2001); Adam Horowitz, The Constitutionality of the Childrens Internet Protection Act, 13 ST. THOMAS L. REV. 425 (2000). 116 See United States v. Am. Library Ass'n, 539 U.S. at 214. 348

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Congress has exercised its Spending Power by speci fying conditions on the receipt of federal funds.117 In addressing the First Amendment in the CIPA case, Justice Rehnquist said that public forum analysis and heightened judicial scruti ny were incompatible with public libraries discretion in deciding on what materials to acquire for their collections.118 He likened the Courts applicability of forum analysis in public libraries to its forum decisions involving public television and funding for the arts, where he said forum doctr ine does not apply.119 Rehnquist also said that concerns over filters blocking ac cess to constitutionally pr otected speech could be remedied by a provision in the CIPA that allows adult patrons to ask librarians to disable the filtering software. In contrast, the Supreme Court applied the st rict scrutiny standard to the Communications Decency Act in Reno.120 Justice John Paul Stevens, who aut hored the decision, said that while some other media, including broadcasting, rece ived a lower level of scrutiny for various reasonssuch as the history of extensive governme nt regulation, the scarcity of access, and its "invasive" naturethose factors we re not present in cyberspace.121 Stevens wrote that the CDA was overbroad and suppressed a large amount of constitutionally-protected speech in order to prevent minors from accessing potentially harmful speech.122 Justice Stevens said that the CDA 117 Id. at 203. 118 Id. at 205-06. 119 See Chapter 7 for the Supreme Courts appli cation of the forum doctrine to the CIPA. 120 Reno v. ACLU, 521 U.S. 844, 868-69 (1997). 121 Reno v. ACLU 521 U.S. at 868-69 (1997). According to the Court, in contrast to a time/place/manner regulation, [T]he CDA is a content-based blanket restrictio n on speech that requires t he application of the most stringent review of its provisions. Id. at 868. 122 Id. at 874. 349

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was vague because it did not define the terms i ndecent and patently offensive. Stevens said that the lack of precision in the statutes wo rding could lead to a chilling effect on speech, which would violate the First Amendment. Precise wording is needed when a regulation restricts speech, Stevens wrote.123 Chief Justice Rehnquist agreed in part and dissented in part with the Courts judgment in Reno. He agreed that the CDA was unconstitutional because adult speech could not yet be zoned in cyberspace. However, he said that he woul d have upheld the CDA as it applied to indecent speech between adults and minors when the adults knew they were communicating with minors.124 Despite the government interest in protecti ng children from materials deemed harmful, parentsnot the governmenthave the primary responsibility of rais ing their children, according to the Supreme Court.125 For example, the Court ha s upheld parents rights in educating their childre n as they see fit and in choosi ng books, magazines and television programming for their children, including sexuall y explicit content if they so desire. On the other hand, the Supreme Court has clea rly stated that the physical, psychological and emotional well-being of minors has been viewed as a compelling government interest,126 while a federal appellate court has held that the government has a compelling government interest in helping parents supervise their children.127 Congress also has re cognized that while 123 Id at 871-72. 124 Id at 897 (OConnor, J., dissenting, joined by Rehnquist, C.J.) 125 See Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Pierce v. Socy of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 403 (1923). 126 See Ginsberg v. New York 390 U.S. 629, 639, 640 (1968); New York v. Ferber, 458 U.S. 747, 756-57 (1982); Prince v. Massachusetts, 321 U.S. 158, 167 (1944). 127 See Action for Childrens Television v. FCC 11 F.3d 170, 177 (D.C. Cir. 1993). 350

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parents are primarily responsible for childrearing, par ental control or guidance cannot always be provided and societys transcende nt interest in protecting th e welfare of children justify reasonable regulation of the sale of material to them.128 The government has a history of protecting mi nors from sexually explicit content. One such Supreme Court decision, directly on point for this disserta tion, upheld a states variable obscenity standard. The case involved a Long Is land luncheonette owners sale of girlie magazines to a sixteen-year-old boy on two separate occasions. In Ginsberg v. New York ,129 the Court held that material that is obscene for minors may not nece ssarily be obscene for adults.130 The Court stated that New Yorks harm to mino rs statute, which barred the sale of sexually explicit materials to persons under the age of seventeen, was constitutional.131 However, the Court did not prohibit parents from purchasing sexually explicit material for their children. Justice William Brennan, in authoring the Courts opinion in Ginsberg, cited an article by legal scholars William Lockhart and Robert McClure, the first authors to articulate the concept of a variable obscenity standard.132 In a 1960 seminal law review article, Lockhart and McClure advocated the two-part variable obsceni ty standard, stating th at some material is obscene for adults and minors both, while other material is obscene for minors but not for adults.133 128 H.R. REP. NO. 105-775 (2d Sess. 1998) at 12 (citing People v. Kahan 15 N.Y.2d 311, 312, 206 H.E.2d 333, 334 (1965), as cited in Ginsberg v. New York, 390 U.S. 629, 640 (1968)). 129 Ginsberg v. New York, 390 U.S. 629 (1968). 130 Id. at 645-66. 131 Id. at 645. 132 Id. at 636. 133 William Lockhart & Robert McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 MINN. L. REV. 5, 77 (1960). 351

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The Supreme Court recognized the governme nts compelling interest in protecting minors from sexually explicit or indecent content in the electronic media, too. In Pacifica,134 the Court held that the Federal Co mmunications Commission had the au thority to regulate the airing of indecent programming in the broadcast media to times when children most likely would not be in the audience. The Court cited Ginsberg135 in reaffirming the governments compelling interest in the well-being of ch ildren. The Court also supported the parental right to childrearing by stating that parents have aut hority in their own household to determine which messages their children are exposed to. In Sable,136 the Court held that the First Amen dment protects indecent dial-a-porn messages but not those that are obscene. Th e Court again reaffirmed the governments compelling interest in protecting children from nonobscene material deemed harmful to them,137 while at the same time stating that regulations must be narrowly dr awn so as to not interfere with the First Amendment freedoms of adults.138 In United States v. Playboy,139 the Court held as unconstitutional a statute140 that required cable operators to either scramble or block chan nels primarily dedicate d to sexually-oriented programming or to broadcast those channels duri ng the safe-harbor hours of 10 p.m. to 6 a.m. 134 FCC v. Pacifica Found., 438 U.S. 726 (1978). 135 Ginsberg v. New York, 390 U.S. 629 (1968). 136 Sable Commcns, Inc. v. FCC, 492 U.S. 115 (1989). 137 Id. at 126. The Court wrote, There is a compelling interest in protecting the physical and psychological wellbeing of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards. 138 Id. (citing Schaumburg v. Citizens for Better Env't 444 U.S. 620, 637 (1980)). 139 United States v. Playboy Entm't Group, Inc., 529 U.S. 803 (2000). 140 Telecommunications Act of 1996, Pub. L. No. 104-104, Title V, Subtitle A, 505(b), 110 Stat. 136 (1996) (codified at 47 U.S.C. 561). 352

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when young children were not likely to be watching.141 Despite its ruli ng, the Court again reinforced the protection of minors when it said that there is a problem that the government must address if television programming can expose child ren to the real risk of harmful exposure to indecent materials, even in their own home and without parental consent.142 The Court said the government must find a way to protect minors from indecency in a way that is consistent with the First Amendment.143 Despite their support of the governments comp elling interest in protecting minors from obscenity and other material deemed harmful, Congress and the Supreme Court have not done a good job of defining what is obscene or what is harmful to minors. Although defining terminology is more of a congressional issue than a court issue, Congress does not seem able to deal rationally with all of the issues involved. The definition of obscenity and the definition of harmful to minors,144 which is based on the Miller obscenity test,145 are difficult to clarify and even more difficult to apply. In addition, Congr ess and the Supreme Court have not squarely faced the definitional issues in light of the Internet. The Court also has not done a good job of de termining how best to balance competing interests; nor has the Court been cons istent in doing so. For example, in Ginsberg, 146 the Court said that parents could purchase sexually explic it material for their ch ildren, thus supporting the 141 Playboy 529 U.S. at 806, 826-27. 142 Id. 143Id.. 144 For the definition of harmful to minors, see supra note 103 and accompanying text. 145 The Supreme Court defined obscenity in 1973 in Miller v. California as works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual c onduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or sc ientific value. Miller v. California, 413 U.S. 15, 24 (1973). 146 Ginsberg v. New York, 390 U.S. 629 (1968). 353

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parental role in childr earing. In contrast, in U.S. v. American Library Association,147 the CIPA case, the Court did not question the congressional mandate that required minors (and adults, for that matter) to use filtered computers even if parents preferred that their children use unfiltered computers in public libraries. The CIPA, in general, imposes government values on the family. In addition, the same filtering soft ware and setting for all library users results in an imposition of the software developers standards over parental views. The use of consistent software settings in public libraries treats young grade school students and teenagers the same way. The Supreme Court, in its opinion in the CIPA case, did not addre ss the ambiguity or vagueness of the terms in the statute, such as bona fide research, technology protective measure, and harmful to minors. At the time Congress enacted the CI PA, a law student said that filtering technology was incap able of blocking visual depi ctions deemed obscene, child pornography or harmful to minors,148 which were terms used in the CIPA.149 Moreover, filtering technology software descri ptions did not match these three definitions, according to an attorney who advised the House Committee on Science and Technology.150 The Court did not question Congress use of the term bona fide research or other lawful purpose. Moreover, the Court did not question w ho would determine if an adults purpose was bona fide or lawful. 147 United States v. Am. Library Assn, 539 U.S. 194 (2003). 148 See Jared Chrislip, Filtering the Internet Like a Smokestack: How the Children's Internet Protection Act Suggests a New Internet Regulation Analogy, 5 J. HIGH TECH. L. 261, 278-79 (2005). 149 For a discussion of more recent Internet filtering technology, see Chapter 3. 150 See Mitchell Goldstein, Congress And The Courts Battle Over The First Amendment: Can The Law Really Protect Children From Pornography On The Internet? 21 J. MARSHALL J. COMPUTER & INFO. L. 141, 187 (2003). Examples of filtering categories are adults only, sexually explicit, sex education, nudity and violence. For a discussion of how filtering software works, see Chapter 3. 354

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The Supreme Court also ignored Congress in consistent use of terminology within the CIPA itself. The lower court had faulted C ongress for choosing language in the disabling provision of the statute that was inconsistent with the language in the banned content provision of the statute. The district court wrote: If Congress intended CIPA's disabling provisions simply to permit libraries to disable the filters to allow access to speech falling outside of these categories, C ongress could have drafted the disabling provisions with greater precision, expressly permitting libraries to disable the filters to enable access for any material that is not obscene, child pornography, or in the case of minors, harmful to minors, rather than to enable access for bona fide research or other lawful purposes which is the language that Congress actually chose.151 In deciding the CIPA case, the Supreme Court also di d not explain how to determine whether content met the harmful to minors standard. Even with a dvances in filtering technology, filters still do not do a good job of di fferentiating between content that is obscene and that which is harmful to minors, an importa nt distinction since ad ults legally would be allowed to access the nonobscene mate rial that could be considered harmful to minors. To this authors knowledge, no court has ye t distinguished those terms. Two law professors proposed an aged-based Internet filtering solution to address concerns about minors access to inappropriate materials in public libraries. Libraries could implement three tiers of filtering: 1) the most restrictive setting would apply to those aged 12 and under; 2) a less restricted setting would a pply to minors aged thirteen through sixteen; and 3) a much less restricted or unrestricted set ting would apply to adu lts aged seventeen and older.152 151 Am. Library Assn v. United States 201 F. Supp. 2d 401, 485 (E.D. Pa. 2002). 152 See Etzioni, supra note 56, at 43-44 (2004); Nunziato, supra note 56, at 163-64. 355

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Although Congress and the courts have presumed that pornography is harmful to adults and minors, social science studies on the effects of pornography are inconclusive and contradictory, as discussed in Chapter 4.153 Kathleen Conn, a legal expert and educator, wrote that empirical research has tr aditionally failed to establish a link between exposure of children to sexually explicit materials and delinquent or criminal behavior.154 Historian and attorney Catherine Ross stated that proponents of government regulation have not justified the compelling interest of protecting minors from harm because they have not articulated any specific harms that would come to children,155 while social scientist Ernest Giglio said that anecdotal evidence carries little, if any, em pirical weight and is made up largel y of impressionistic and subjective experiences.156 Because of the presumed psychological, moral, or developmental harm to minors that would result from their exposure to sexually explic it material, it has been considered unethical for researchers to intentionally expose children to pornography. Ther efore, virtually no empirical studies have been done, according to researchers.157 153 See Azy Barak & William A. Fisher, Effects of Interactive Computer Erotica on Mens Attitudes and Behavior Toward Women: An Experimental Study, 13 COMPUTERS IN HUMAN BEHAVIOR 353, 354 (1997). See also Aletha C. Huston, Ellen Wartella & Edward Donnerstein, Measuring the Effects of Sexual Content in the Media: A Report to the Kaiser Family Foundation at 4 (May 2003), http://www.kff.org/entmedia/1389-content.cfm and http://www.kff.org/entmedia/loader.cfm?url=/commonspot/security/getfile.cfm&PageID=14624 (last visited July 20, 2009); John S. Lyons, Rachel L. Anderson & David B. Larson, A Systematic Review of the Effects of Aggressive and Nonaggressive Pornography, in MEDIA, CHILDREN, AND THE FAMILY: SOCIAL SCIENTIFIC, PSYCHODYNAMIC, & CLINICAL PERSPECTIVES 301 (Dolf Zillmann & Aletha C. Huston, ed s., 1994); Azy Barak, William A. Fisher, Sandra Belfry & Darryl R. Lashambe, Sex, Guys & Cyberspace: Effects of Internet Pornography and Individual Differences on Mens Attitudes Toward Women, 11 J. PSYCHOLOGY & HUMAN SEXUALITY 63, 65 (1999). 154 Conn, supra note 115, at 479. 155 See Catherine J. Ross, Anything Goes: Examining the States Interest in Protecting Children from Controversial Speech, 53 VAND. L. REV. 427, 494 (2000). 156 See Ernest Giglio, Pornography in Denmark: A Public Policy Model for the United States, 8 COMP. SOC. RESEARCH 281, 296 (1985). 157 See Kimberly J. Mitchell, David Finkelhor & Janis Wolak, The Exposure of Youth to Unwanted Sexual Material on the Internet: A National Survey of Risk, Impact, and Prevention, 34 YOUTH & SOCY 330, 334 (2003). See also Huston, Wartella & Donnerstein, supra note 153. 356

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Other research studies, conduc ted on the effects of sexua lly explicit material on young adults and mature adults, ha ve yielded mixed results. One study, conducted in the mid-1980s, suggested that sexually explicit films only had undesirable e ffects on actions when violence was included.158 At least five studies, conducted in the 1980s, indicated that men developed negative attitudes toward women and engage d in aggressive behavior toward them after being exposed to sexually explicit material that portrays wome n as receptive, nondiscriminating and available sexual objects.159 On the other hand, another six stud ies, conducted in the 1980s and 1990s, indicated that men were not easily influenced or affected by such sexually explicit materials and therefore did not develop negative attitudes and be haviors toward women as a result of exposure to explicit materials.160 Most social science studie s on the effects of exposure to pornography were conducted prior to the advent of the In ternet. Research into the cont ent, use and effects of online 158 See EDWARD DONNERSTEIN, DANIEL LINZ & STEVEN PENROD, THE QUESTION OF PORNOGRAPHY: RESEARCH FINDINGS AND POLICY IMPLICATIONS 176 (1987). See also Edward Donnerstein & Leonard Berkowitz, Victim Reactions in Aggressive Erotic Films as a Factor in Violence Against Women, 41 J. PERSONALITY & SOC. PSYCHOLOGY 710 (1981); Margaret E. Thompson, Steven H. Chaffee & Hayg H. Oshagan, Regulating Pornography: A Public Dilemma, 40 J. COMM. 73, 74 (1990). 159 See J.V.P. Check & T.H. Guloien, Reported Proclivity for Coercive Sex Following Repeated Exposure to Sexually Violent Pornography, Nonviolent Dehumanizing Pornography, and Erotica, in PORNOGRAPHY: RESEARCH ADVANCES AND POLICY CONSIDERATIONS 159-84 (Dolf Zillman & Jennings Bryant, eds., 1989); E. Donnerstein, Pornography: Its Effect on Violence Against Women, in PORNOGRAPHY AND SEXUAL AGGRESSION 53-81 (N.M. Malamuth & E. Donnerstein, eds., 1984); N.M. Malamuth & J.V.P. Check, The Effects of Mass Media Exposure On Acceptance of Violence Against Women, 15 J. RESEARCH IN PERSONALITY 436-46 (1981); R.S. Wyer, G.V. Bodenhausen & T.F. Gorman, Cognitive Mediators of Reactions to Rape, 48 J. PERSONALITY AND SOC. PSYCHOLOGY 324-38 (1984); and D. Zillmann, Effects of Prolonged Consumption of Pornography, in PORNOGRAPHY: RESEARCH ADVANCES AND POLICY CONSIDERATIONS 127-57 (Dolf Zillman & Jennings Bryant, eds., 1989). 160 See Barak & Fisher, supra note 153 at 353-69; J. Becker & R.M. Stein, Is Sexual Erotica Associated With Sexual Deviance in Adolescent Males? 14 INTL J. L. & POLY 85-95 (1991); W.A. Fisher & G. Grenier, Violent Pornography, Antiwoman Thoughts, and Anti Woman Acts: In Search of Reliable Effects. 31 J. SEX RESEARCH 2338 (1994); R. Langevin et al., Pornography and Sexual Offenses, 1 ANNALS OF SEX RESEARCH 335-62 (1988); N.M. Malamuth & J. Ceniti, Repeated Exposure to Violent and Nonviolent Pornography: Likelihood of Raping Ratings and Laboratory Aggression Against Women, 12 AGGRESSIVE BEHAVIOR 129-37 (1986); V.R. Padgett, J.A. BrislinSlutz & J.A. Neal, Pornography, Erotica, and Attitudes Toward Women: The Effects of Repeated Exposure 26 J. SEX RESEARCH 479-91 (1989). See generally I.L. REISS, JOURNEY INTO SEXUALITY: AN EXPLORATORY VOYAGE (1986). 357

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pornography is still in the early stages, and therefore not much is known about the behaviors and attitudes of people who access pornography online.161 Even with the interactive environment of computer pornography, researchers reported in 1 997 that males use of computer pornography did not affect their attitude s and behavior toward women.162 In 2000, another group of researchers argued that further research needs to be conducte d to study whether interactive pornography has a more negative impact on cons umers than non-interactive pornography or even non-interactive obscenity.163 In an article releas ed in 2000, a team of researchers who conducted a meta-analysis reported that exposure to pornography produces a va riety of substantial negative outcomes.164 The researchers stated that them es of aggression, gratification and objectification may reinforce and/or justify sim ilar attitudes and behaviours [sic] in everyday human-life contacts.165 The team reported, however, that the relationship between the consumption of pornography and subsequent be havior does not exist in a vacuum. The researchers wrote, While likely not a solitary influence, it appears that exposure to pornography is one important factor which contributes direc tly to the development of sexually dysfunctional attitudes and behaviours. [sic]166 161 See Patricia Goodson, Deborah McCormick & Alexandra Evans, Searching for Sexually Explicit Materials on the Internet: An Exploratory Study of College Students Behaviors and Attitudes, 30 ARCHIVES OF SEXUAL BEHAVIOR 101, 103, 115 (2001); see also Azy Barak & Fisher, supra note 153, at 353. 162 See Barak & Fisher, supra note 153, at 357-66. 163 See Chad Mahood, Sriram Kalyan araman & S. Shyam Sundar, The Effects of Erotica and Dehumanizing Pornography in an Online Interactive Environment, paper presented at annual convention of the Association for Education in Journalism and Mass Communication, Phoenix, Ariz. (Aug. 2000). 164 Elizabeth Oddone-Paolucci, Mark Genuis & Claudio Violato, A Meta-Analysis of the Published Research on the Effects of Pornography, in THE CHANGING FAMILY AND CHILD DEVELOPMENT 52 (Claudio Violato, Elizabeth Oddone-Paolucci & Mark Genuis, eds., 2000). 165 Id. 166 Id. 358

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With the advent and expansion of the In ternet, researchers ha ve questioned whether Internet pornography can be con ceptualized as traditional po rnography viewed through a new medium167 or if online pornography is quite diffe rent than that found in other media.168 For instance, some researchers view Internet pornography as unique from other media because of the interactivity.169 With the emergence of social networking sites and 3-D sites with avatars, such as Second Life, further studies on the effect s of interactive pornogr aphy would be useful. Suggestions for Future Research Further study is needed on seve ral issues related to mandatory Internet filtering in public libraries. First, legal scholars could investigate as applied challenges170 to the Childrens Internet Protection Act. An as applied challeng e would allow a library patron to file a lawsuit alleging that the law was improperly administ ered under a specific set of circumstances.171 For example, if a librarian refused to disable the filter or was unable to disable the filter in a timely manner, or if an adult patrons access to const itutionally-protected online content was burdened in some other substantial way, the patron woul d be able to challenge the CIPA on an as applied basis.172 167 See Michael D. Mehta & D. Plaza, Content Analysis of Pornographic Images Available on the Internet, 13 THE INFO. SOCY 153, 154, 161 (1997). 168 See Mahood, Kalyanaraman & Sundar, supra note 163; S. S. Sundar, Technological Issues in Internet Pornography, paper presented at annual convention of the Association for Education in Journalism and Mass Communication, New Orleans, La. (Aug. 1999). 169 See Ven-hwei Lo & Ran Wei, Third-Person Effect, Gender, and Pornography on the Internet, 46 J. BROAD. & ELEC. MEDIA 13, 13-14 (2002); Marty Rimm, Marketing Pornography on the Information Superhighway, 83 GEORGETOWN L.J. 1849, 1852 (1995). 170 See United States v. Am. Library Assn 539 U.S. 194, 215 (2003) (Kennedy, J., concurring). 171 The CIPA contains a disabling provision that allows librarians to disable the filter for adults for bona fide research or other lawful purposes. See 47 U.S.C. 254(h)(5)(D) and 47 U.S.C. 254(h)(6)(D)). 172 See United States v. Am. Library Assn, 539 U.S. at 215 (Kennedy, J., concurring). 359

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Second, legal scholars could st udy the use of age-specific regulationsfor example, grouping minors into several groups, such as 6-year s-old and below, 7to 12-year-olds, and 13to 16-year-olds. The filtering se ttings could be set at the most restrictive leve l for young children, a somewhat restrictive level for elementary school children, and the least restrictive level for teenagers. Such an approach would be a less restri ctive alternative for filtering Internet content in public libraries and more in line with the missi on and role of public libraries. Legal scholars could collaborate with child development experts on the study. Third, additional social science studies are n eeded to study the potential harm of sexually explicit images on minors. The CIPA presumes th at sexually explicit images would be harmful to minors. Although researchers have stated that it would be unethica l to conduct experiments that would subject minors to se xually explicit videos, researcher s could target a group of minors who had already been exposed to sexually explic it images and use a longitudinal study or case studies to try to determine the impact of thos e images on minors. In addition, researchers could, in an effort to measure the effects of sexually e xplicit videos on minors, seek parental permission to show minors sexual videos, just as resear chers would seek parental permission to expose minors to violent videos. Fourth, research is lacking on the capability of current fi ltering software to correctly identify images, which is the only type of content covered under the Childrens Internet Protection Act. Social science researchers c ould conduct quantit ative and qualitative content analyses of the most common filtering programs used in public libraries to determine their effectiveness at preventing access to pornogr aphic images and at allowing access to nonpornographic images. 360

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Fifth, a study of the CIPAs effect on public libraries and libraria ns would be useful. Social science researchers could conduct a national random survey of librarians to determine if their libraries use filters, how they are using filters, and what they are telling patrons about the use of filters. Researchers also could ask about any self-perceived changes in their role as librarians after the enactment of the CIPA. In the same survey, researchers could collect data to help them evaluate any changes in public libra ries participation in the E-rate and Library Services and Technology Act programs (and reas ons for the changes), librarians compliance with the CIPA, and librarians experiences w ith Internet filters a nd disabling requests. Conclusion The Childrens Internet Protection Act requir es public libraries to install filtering technology on all computers connecte d to the Internet in order to receive federal funding. The mission and role of the public library is to provide patrons with acce ss to a broad array of information, not to withhold information, which o ccurs with mandatory filtering. Because a great deal of information is available online, Intern et access supports the pub lic librarys role in making information accessible to patrons, albeit in a different format than printed resources, while the CIPA hinders the librarys role as information provider. The First Amendment right to receive inform ation doctrine is directly applicable to Internet access in public libraries because the library is a pl ace to pursue knowledge. As First Amendment scholar Thomas Emerson said, there is a First Amendment right to receive and obtain communication, independent of or suppl emental to the right of the speaker to communicate information.173 The public library should be a place for research and exploration, where patrons can access a wide variety of inform ation and viewpoints. The right to read, listen 173 See Emerson, supra note 26, at 2. 361

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and see deserves full First Amendment protectio n. The Childrens Inte rnet Protection Act, however, is a move away from th e right to receive ideas and information that the Supreme Court and lower federal courts recognized in earlier library decisions. The right to receive ideas and information doctrine supports the ma rketplace of ideas, self-fulfillment, self-government and checking value theories ofte n mentioned as pillars of the First Amendment. A public librarys collection inhe rently serves as a marketplace of ideas. The library is one place where visitors should be able to choose exposure to as many ideas as possible, including political and social ideas, in their search for knowledge and truth. In the search for knowledge, library patrons should not be faced with obstacles, such as filtered Internet access. The marketplace and the search for truth suffer when ideas are stifled. Moreover, without a right to receive information and ideas, the role of the speaker becomes meaningless, as do the self-fulfillment, marketplace, self-government a nd checking values of the First Amendment. The First Amendment self-ful fillment theory also supports online access in public libraries. Patrons, in using the Internet, can find information that leads to self-fulfillment and autonomy. First Amendment scholar C. Edwin Baker ha s stated that the sol itary uses of speech contribute to self-fulfillment.174 Such solitary use, in acquiri ng knowledge and information, is the major function of a public library and In ternet access in the pub lic library. The CIPA impedes the publics pursuit of self-fulfillment. The current First Amendment public forum doctrine does not seem to fit Internet access in public libraries as it is inadequate for new and emer ging technologies. A new category of public fora, such as an inherently public foru m or a metaphysical public forum, needs to be 174 C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. REV. 964, 995-96 (1978). 362

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developed for the Internet. The metaphysical public forum would be equivalent to the traditional public forum because the Internet has replaced stre ets, parks and sidewalks for the free exchange of ideas between speakers and listeners. In a metaphysical public forum, any content-ba sed regulation would be subject to strict scrutiny. The government would need to show that any content-based regulation, such as Internet filtering, would be narrowly tailored to meet th e compelling interest of protecting minors from harm. The government would face two obstacles. Fi rst, social science st udies on the effects of pornography have been inconclusive. Second, there are less restrictive wa ys to prevent minors from accessing sexually explicit material online. Fo r example, libraries could offer both filtered and unfiltered computers. However, if minors were restricted to using filtered computers, the parental role in childrearingby choosing whethe r their children should or should not have open access to the Internetwould be usurped. In the current paradigm, where the Supreme Cour t has held the Internet in a public library is not a traditional or designa ted public forum, the Childrens Internet Protection Act cannot do what Congress expected of it. First, filtering tech nology is not sophisticated enough to block sexually explicit images without blocking a grea t deal of constitutiona lly-protected speech. Second, because filtering technolog y is proprietary, there is no wa y to determine if filtering software uses the legal terminology of obscenit y, child pornography, and harmful to minors, the language contained in the CIPA. Typically, filtering products bloc k categories of content based on such factors as nudity, sex, violence, and hate speech.175 Third, even if filtering software companies tried to incorporate the three categories of content contained in the CIPA, the 175 For a discussion of filtering technology, see Chapter 3. 363

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software developers are not trai ned in law and therefore would not be precise in applying the definitions to the software programs. Instead of mandating Internet filtering in publ ic libraries, Congress could have enacted a statute that gave public libraries more flexibilit y. Local libraries then would have been able to develop local solutions to local problems, such as providing filtered computers for children and unfiltered computers for adults, setting up an adul t computer room with unfiltered computers, or allowing parents to decide whet her their children shoul d use filtered or unfiltered computers. The Supreme Court, in decidi ng to uphold the Childrens Inte rnet Protection Act, seemed to ignore the role of the public library, the parent al role in childrearing, and the flaws in filtering technology. The Court could have reaffirmed the ri ght to receive information in public libraries, but it did not address the issue. The Court coul d have assessed how to balance the competing interests of protecting minors from harm, upholding the rights of adults to view constitutionallyprotected speech, and supporting the rights of parents to raise thei r children however they saw fit, but the Court did not do so. The Court also could have discussed how lower courts could determine what constitutes harm to minors, which it did not do. Congress and the courts need to address the definitional issues in the context of the Internet because they will not go away unless more sophisticated filtering technology is developed. The development of f iltering technology that can apply legal definitions to content of the CIPAvisual images that are obscene, child pornography, or harmful to minorsis unlikely, however. First, obscenity is defined by local standards, and filtering software designers cannot incorporate local standard s in products that are distribu ted nationally. Second, actual child pornography, which is not protected, is difficult to distinguish from vi rtual child pornography,176 176 Virtual child pornography uses computer-g enerated actors that look like children. 364

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365 which is protected. Filters would likely do a worse job than humans in trying to distinguish the two. Third, the definition of harm to minors is open to interpretation and difficult to apply to specific circumstances, especia lly in borderline instances. By focusing on the congressional spending pow er in deciding the Childrens Internet Protection Act, the Supreme Court missed the opport unity to clarify existing law. The Court also failed to allow public libraries come up with thei r own solutions that coul d be better geared to solving problems with Internet access on the lo cal level. In upholding the Childrens Internet Protection Act of 2000, the Supreme Court did not address the disconnect between law and technology.

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BIOGRAPHICAL SKETCH Barbara Helena Smith was born on Long Island, New York and later moved to the Midwest, where she graduated from Lumen Ch risti High School in Jackson, Michigan. She earned a BA degree in telecommuni cations and an MA degree in journalism from Michigan State University. She has professional ex perience as a broadcast, print a nd online journalist, and as an announcer and disk jockey in both commercial and public radio. She also more than a decade of experience in higher education, se rving as a college administrator and faculty member. Included among the positions she held in higher education we re Director of Admissions at Adrian College in Michigan, Assistant Professor of Journalism at Olivet College in Michigan, instructor in journalism and mass communications at Kansas State University, and Assistant Professor of Communication at Rochester Institute of Technol ogy in Rochester, New York. She received her Ph.D. from the University of Florida in the fall of 2009.