Porn Filter Challenge Heads to Court

WASHINGTON, D.C. -- It's now up to the U.S. Supreme Court: Do Internet filters intended to protect children from pornography violate the Constitution by limiting free speech?

The justices took up the question this week, hearing a challenge by the American Library Association of the Children's Internet Protection Act of 2000. Under that law, libraries and schools can receive federal funding and ISP discounts only if they install filters.

A lower court in Pennsylvania ruled last May that the filtering was too broad in the information it blocked--including information on sexuality and health--and that it allowed some pornography sites through.

The Supreme Court decision, expected by the court's recess in June, will determine whether the Children's Internet Protection Act is overturned. During the hearing, the justices questioned government lawyers on how the blocking was enforced, and questioned the ALA's attorneys about whether the Internet is truly a public forum.

Preventing Obscenity?

Soliciter General Theodore B. Olson presented the government's argument that the filters expand rather than inhibit freedom of speech, because they enable libraries to continue exercising discretion over their material.

Internet pornography is similar to books or magazines that librarians have historically chosen to keep off the shelves, he says. Olson argued that the government has a compelling interest to prevent obscenity--which is not constitutionally protected speech--when giving money to promote free speech.

Justice Antonin Scalia noted that the inevitable price of blocking is that more information is blocked than the law envisioned because of the imprecision of the technology.

The justices also questioned how the blocking could be removed, whether blocking extends to the library staff, and whether adults using the library PCs would have to say why they want the computer unblocked. Justice Stephen Breyer suggested libraries could set up a separate computer-viewing room with a different staff that did not receive federal funds.

Olson said that the consequences of not using filters could be strict scrutiny on librarians that prevented them from exercising their judgment.

Public Forum

The justices challenged an assertion by Paul Smith, an attorney for the American Library Association, that the Internet is a public forum, asking him whether it is indeed a place where the state may not exclude one disfavored category of speech based on its content.

They asked whether a library at an elementary school or a high school would be a public forum, and Smith responded that it would.

Scalia asked how the filter could be considered to end the public forum when public libraries already limit access to chat rooms, gaming, gambling, and e-mail.

Smith also argued that the "federal government had no business using its spending power to distort that medium [the Internet]." He said that of the 100,000 explicitly sexual sites on the Internet, about 90,000 are blocked by the filter, without evidence that they are obscene. He said tens of thousands of sites that are not sexually explicit also are blocked, concluding that 1 percent of the Internet is overblocked.

Smith also argued that the stigma of having to ask the librarian to unblock the Internet effectively represses speech.

Olson told the justices that 95 percent of all public libraries have some policy of acceptable access.