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- Children's Internet Protection Act (CIPA) Ruling - 1/32 -



AMERICAN LIBRARY ASSOCIATION, : CIVIL ACTION INC., et al. : : v. : : UNITED STATES, et al. : NO. 01-1303 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MULTNOMAH COUNTY PUBLIC : CIVIL ACTION LIBRARY, et al. : : v. : : UNITED STATES OF AMERICA, et al. : NO. 01-1322

Before: BECKER, Chief Circuit Judge, FULLAM and BARTLE, District Judges.


May 31, 2002

Becker, Chief Circuit Judge


I. Preliminary Statement II. Findings of Fact A. Statutory Framework 1. Nature and Operation of the E-rate and LSTA Programs 2. CIPA a. CIPA's Amendments to the E-rate Program b. CIPA's Amendments to the LSTA Program B. Identity of the Plaintiffs 1. Library and Library Association Plaintiffs 2. Patron and Patron Association Plaintiffs 3. Web Publisher Plaintiffs C. The Internet 1. Background 2. The Indexable Web, the "Deep Web"; Their Size and Rates of Growth and Change 3. The Amount of Sexually Explicit Material on the Web D. American Public Libraries 1. The Mission of Public Libraries, and Their Reference and Collection Development Practices 2. The Internet in Public Libraries a. Internet Use Policies in Public Libraries b. Methods for Regulating Internet Use E. Internet Filtering Technology 1. What Is Filtering Software, Who Makes It, and What Does It Do? 2. The Methods that Filtering Companies Use to Compile Category Lists a. The "Harvesting" Phase b. The "Winnowing" or Categorization Phase c. The Process for "Re-Reviewing" Web Pages After Their Initial Categorization 3. The Inherent Tradeoff Between Overblocking and Underblocking 4. Attempts to Quantify Filtering Programs' Rates of Over- and Underblocking 5. Methods of Obtaining Examples of Erroneously Blocked Web Sites 6. Examples of Erroneously Blocked Web Sites 7. Conclusion: The Effectiveness of Filtering Programs III. Analytic Framework for the Opinion: The Centrality of Dole and the Role of the Facial Challenge IV. Level of Scrutiny Applicable to Content-based Restrictions on Internet Access in Public Libraries A. Overview of Public Forum Doctrine B. Contours of the Relevant Forum: the Library's Collection as a Whole or the Provision of Internet Access? C. Content-based Restrictions in Designated Public Fora D. Reasons for Applying Strict Scrutiny 1. Selective Exclusion From a "Vast Democratic Forum" 2. Analogy to Traditional Public Fora V. Application of Strict Scrutiny A. State Interests 1. Preventing the Dissemination of Obscenity, Child Pornography, and Material Harmful to Minors 2. Protecting the Unwilling Viewer 3. Preventing Unlawful or Inappropriate Conduct 4. Summary B. Narrow Tailoring C. Less Restrictive Alternatives D. Do CIPA's Disabling Provisions Cure the Defect? VI. Conclusion; Severability FOOTNOTES

1. Preliminary Statement

This case challenges an act of Congress that makes the use of filtering software by public libraries a condition of the receipt of federal funding. The Internet, as is well known, is a vast, interactive medium based on a decentralized network of computers around the world. Its most familiar feature is the World Wide Web (the "Web"), a network of computers known as servers that provide content to users. The Internet provides easy access to anyone who wishes to provide or distribute information to a worldwide audience; it is used by more than 143 million Americans. Indeed, much of the world's knowledge accumulated over centuries is available to Internet users almost instantly. Approximately 10% of the Americans who use the Internet access it at public libraries. And approximately 95% of all public libraries in the United States provide public access to the Internet.

While the beneficial effect of the Internet in expanding the amount of information available to its users is self-evident, its low entry barriers have also led to a perverse result facilitation of the widespread dissemination of hardcore pornography within the easy reach not only of adults who have every right to access it (so long as it is not legally obscene or child pornography), but also of children and adolescents to whom it may be quite harmful. The volume of pornography on the Internet is huge, and the record before us demonstrates that public library patrons of all ages, many from ages 11 to 15, have regularly sought to access it in public library settings. There are more than 100,000 pornographic Web sites that can be accessed for free and without providing any registration information, and tens of thousands of Web sites contain child pornography. Libraries have reacted to this situation by utilizing a number of means designed to insure that patrons avoid illegal (and unwanted) content while also enabling patrons to find the content they desire. Some libraries have trained patrons in how to use the Internet while avoiding illegal content, or have directed their patrons to "preferred" Web sites that librarians have reviewed. Other libraries have utilized such devices as recessing the computer monitors, installing privacy screens, and monitoring implemented by a "tap on the shoulder" of patrons perceived to be offending library policy. Still others, viewing the foregoing approaches as inadequate or uncomfortable (some librarians do not wish to confront patrons), have purchased commercially available software that blocks certain categories of material deemed by the library board as unsuitable for use in their facilities. Indeed, 7% of American public libraries use blocking software for adults. Although such programs are somewhat effective in blocking large quantities of pornography, they are blunt instruments that not only "underblock," i.e., fail to block access to substantial amounts of content that the library boards wish to exclude, but also, central to this litigation, "overblock," i.e., block access to large quantities of material that library boards do not wish to exclude and that is constitutionally protected.

Most of the libraries that use filtering software seek to block sexually explicit speech. While most libraries include in their physical collection copies of volumes such as The Joy of Sex and The Joy of Gay Sex, which contain quite explicit photographs and descriptions, filtering software blocks large quantities of other, comparable information about health and sexuality that adults and teenagers seek on the Web. One teenager testified that the Internet access in a public library was the only venue in which she could obtain information important to her about her own sexuality. Another library patron witness described using the Internet to research breast cancer and reconstructive surgery for his mother who had breast surgery. Even though some filtering programs contain exceptions for health and education, the exceptions do not solve the problem of overblocking constitutionally protected material. Moreover, as we explain below, the filtering software on which the parties presented evidence in this case overblocks not only information relating to health and sexuality that might be mistaken for pornography or erotica, but also vast numbers of Web pages and sites that could not even arguably be construed as harmful or inappropriate for adults or minors.

The Congress, sharing the concerns of many library boards, enacted the Children's Internet Protection Act ("CIPA"), Pub. L. No. 106-554, which makes the use of filters by a public library a condition of its receipt of two kinds of subsidies that are important (or even critical) to the budgets of many public libraries grants under the Library Services and Technology Act, 20 U.S.C. Sec. 9101 et seq. ("LSTA"), and so-called "E-rate discounts" for Internet access and support under the Telecommunications Act, 47 U.S.C. Sec. 254. LSTA grant funds are awarded, inter alia, in order to: (1) assist libraries in accessing information through electronic networks, and (2) provide targeted library and information services to persons having difficulty using a library and to underserved and rural communities, including children from families with incomes below the poverty line. E-rate discounts serve the similar purpose of extending Internet access to schools and libraries in low-income communities. CIPA requires that libraries, in order to receive LSTA funds or E-rate discounts, certify that they are using a "technology protection measure" that prevents patrons from accessing "visual depictions" that are "obscene," "child pornography," or in the case of minors, "harmful to minors." 20

Children's Internet Protection Act (CIPA) Ruling - 1/32

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