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Washington Post

June 24, 2003

Ruling Backs Porn Filters In Libraries

Author: Charles Lane; Washington Post Staff Writer

Edition: F
Section: A Section
Page: A1

Estimated printed pages: 4

Article Text:

The Supreme Court yesterday upheld a federal law that seeks to prevent Internet users at public libraries from gaining access to pornography, a decision that could affect the online choices available to millions of Americans who use the World Wide Web at libraries.

By a vote of 6 to 3, the court said the Children's Internet Protection Act, which requires libraries that receive federal aid for Internet technology to use anti-pornography filtering software, does not violate the Constitution's guarantee of free speech.

The law had been opposed by the American Library Association and a group of Internet users and Web sites. They argued that filtering software is so imprecise that, in aiming at obscene material, it also blocks a large amount of constitutionally protected sexual material, such as medical information and avant-garde art. Less restrictive means would work better, they said.

"While a library could limit its Internet collection to just those sites it found worthwhile, it could do so only at the cost of excluding an enormous amount of valuable information that it lacks the capacity to review," Chief Justice William H. Rehnquist wrote in an opinion that was joined by three other justices, Sandra Day O'Connor, Antonin Scalia and Clarence Thomas. "Given that tradeoff, it is entirely reasonable for public libraries to reject that approach and instead to exclude certain categories of content, without making individualized judgments. . . . "

The decision was something of a departure for a Supreme Court that has generally taken an expansive view of the First Amendment. In two previous reviews of recent congressional attempts to regulate sexually explicit material in cyberspace, the court struck down one law and issued a mixed ruling on a second.

But, in this case, Rehnquist wrote, the law was not an abuse of Congress's power to control how federal money is spent. The Internet law "does not violate [library] patrons' First Amendment rights, [and] does not induce libraries to violate the Constitution" themselves, he wrote.

The other two votes for the court's judgment came from two strong supporters of free speech, Justices Anthony M. Kennedy and Stephen G. Breyer.

In a separate concurring opinion, Kennedy wrote that he was satisfied that adults could have the filtering software removed simply by asking librarians to do so. Breyer, also writing separately, said that he would have subjected the law to a higher degree of constitutional scrutiny than Rehnquist's plurality, but would have found that the harm it caused to free speech was not disproportionate to its benefits.

Justice John Paul Stevens wrote a dissenting opinion, as did Justice David H. Souter, who was joined by Justice Ruth Bader Ginsburg.

"There is no good reason . . . to treat blocking of adult enquiry as anything different from the censorship it presumptively is," Souter wrote.

Maurice J. Freedman, president of the American Library Association, said the court had imposed an "unseemly burden" by asking librarians to handle requests by library users who want the filtering software turned off. "Libraries are given no guidance about what they are blocking. Filtering companies set their own criteria and don't tell the libraries what sites are being blocked," Freedman said.

But congressional sponsors hailed the court's decision. "Parents can now feel secure that when they entrust their children to a public school or library there is some level of safety for their children when they go online," said Sen. John McCain (R-Ariz.).

Of the 143 million Americans who use the Internet regularly, 10 percent rely on access at a public library. Some 95 percent of all U.S. libraries offer Internet access, and federal aid has been a crucial factor in this expansion.

The aid comes through two separate programs: One program administered by the Federal Communications Commission requires Internet service providers to give discounts to libraries; this was worth $58.5 million to libraries in the year ending June 2002, according to the Justice Department. Another provides direct federal grants to link libraries to the Internet; the grants totaled more than $149 million in fiscal 2002.

In Montgomery County, which does not take the federal funds at issue in the case, filters are placed only on terminals in children's areas. Kay Ecelbarger, chief of collections for the system, said that when a question is raised about a blocked site, the library contacts the filter provider, but any changes to the system can't be immediately made for the patron.

The D.C. libraries depend on federal funds. The system, which opposed filtering because it said information choices should be made by parents and patrons, not libraries, will now have to decide how to implement the ruling, said assistant library director Rita Thompson-Joyner.

Loudoun County library director Douglas Henderson said that his system takes librarians out of the equation by requiring every computer user to become a member of the library. At the time users register, they choose whether to have Internet filtering turned on. When the users sign onto library computers, their filtering preference is automatically deployed.

Opponents filed their suit shortly after the Internet law took effect in December 2000. In May 2002, a panel of three federal judges sitting in Philadelphia ruled unanimously that the law was unconstitutional. The court noted that, in one case, filtering software blocked a Massachusetts town selectman's Web site.

However, a recent study by the Henry J. Kaiser Family Foundation in partnership with researchers at the University of Michigan, found that, when set at the least restrictive level, filters correctly block 87 percent of pornography while incorrectly blocking an average of only 1.4 percent of sites with legitimate health information.

Under special provisions in the law calling for expedited constitutional review, the Bush administration appealed directly to the Supreme Court, arguing that the software was the best available means of preventing taxpayer money from subsidizing the dissemination of material that is obscene or inappropriate for children.

The software's automatic screening of Web material, the administration argued, is no different from the decisions libraries make each day about which books are appropriate to keep on their shelves.

The law represents the third time since 1996 that Congress, responding to parents' concerns about the powerful new medium's potential influence on children, has attempted to limit what can be seen, heard and read on the World Wide Web.

The Supreme Court struck down the 1996 Communications Decency Act, which made it a crime to put sexually explicit material on the Web within reach of minors. Congress passed a revised version of the law in 1998, called the Child Online Protection Act. In 2002, the court partially upheld the new law but asked lower courts to review key provisions; meanwhile, enforcement of the act remains blocked.

The case is U.S. v. American Library Association Inc., et al., No. 02-361.

Staff writer Jonathan Krim contributed to this report.

Copyright 2003 The Washington Post
Record Number: 062403XA01Ru490548