Thank you for sharing!

Your article was successfully shared with the contacts you provided.
For the third time, a law passed by Congress to protect children from smut on the Internet is going on trial in federal court in Philadelphia. In the first two cases, the courts struck down the laws — the Communications Decency Act and the Child Online Protection Act — as unconstitutional. The U.S. Supreme Court later agreed that the CDA was unconstitutional, and the justices are right now weighing whether COPA should also be struck down. In many ways, the current challenge to the Children’s Internet Protection Act, or CIPA, which goes on trial Monday before a three-judge panel, is very similar to the previous two cases. Quite a few of the players are the same. On the plaintiffs’ side, the lead lawyers are Ann Beeson and Christopher Hansen from the American Civil Liberties Union’s national headquarters in New York. A plaintiffs’ team from Jenner & Block in Washington is once again representing the American Library Association, this time led by attorneys Paul M. Smith and Theresa A. Chmara. But legally, the case is significantly different because CIPA was passed under the Spending Clause, a fact that Justice Department lawyers insist calls for a much more lenient court review. CIPA requires that all public libraries participating in certain federal programs install and enforce “technology protection measures,” in the form of “filtering” software, that protect against access to material that is obscene, child pornography and, on computers used by minors, harmful to minors. In court papers filed last week, the three teams of lawyers outlined their plans for presenting evidence in a nine-day trial before Chief Judge Edward R. Becker of the 3rd U.S. Circuit Court of Appeal and U.S. District Judges John P. Fullam and Harvey Bartle III of the Eastern District of Pennsylvania. (The case was originally assigned to Fullam, who put the law on hold within days, but the law calls for a three-judge panel to be convened, with one additional district judge and one appellate judge, both hand-picked by the circuit’s chief. Becker appointed himself and Bartle to join the panel.) The plaintiffs’ lawyers will call 14 witnesses: four librarians; three experts on the features and flaws of filtering software; four experts in librarianship; two library patrons who access the Internet at their libraries; and one Web publisher whose speech is blocked by blocking programs. In their pretrial brief, the plaintiffs’ lawyers say their witnesses “will establish that, if upheld, CIPA will prevent library patrons from receiving a substantial amount of protected speech published on the Internet.” As a result, they argue, CIPA “imposes an unconstitutional condition” on libraries that participate in federal programs that provide subsidies for Internet access and therefore “distorts the usual function of public libraries, which is to provide patrons with the broadest possible array of protected speech.” But a team of lawyers from the Justice Department — Rupa Bhattacharyya, Timothy Zick, Andrea Gacki and Lisa Bornstein — argue that libraries can simply choose not to take the federal subsidies if they don’t like the law. “Just as libraries have a right to determine the scope of their publicly funded offerings to patrons, so too does Congress have the right, for purposes of federal funding, to favor those libraries that exercise their choice not to provide unfettered access to the Internet in this manner,” they wrote. Libraries “may continue to provide pornography to their patrons,” they argue, but “cannot, however, demand that Congress pay the bills.” The government lawyers also insist that the CIPA must pass constitutional muster unless the plaintiffs can prove that it will force every participating library to violate its patrons First Amendment rights. “The mere possibility that a library can constitutionally apply a content filter is all that is required to defeat plaintiff’s facial challenges to CIPA,” they wrote. In their pretrial brief, the Justice Department lawyers say they will present evidence from four library systems that have chosen to adopt reasonable limits on the provision of Internet services in their libraries. That evidence, they say, “will demonstrate that the presumption that libraries choosing to implement filters will do so in good faith and in a constitutionally permissible manner is well warranted.” But the plaintiffs’ lawyers say they intend to put the filtering software on trial and that they can prove the software blocks access to significant amounts of protected speech, such as information on safe sex practices, breast cancer and legitimate art. As a result, they argue, “CIPA imposes a classic system of prior restraints that presumptively violates the First Amendment.” Public libraries, they argue, “are limited public forums, bound by the same First Amendment standards as any traditional public forum.” The plaintiffs’ lawyers say their experts “will prove that blocking programs function literally as automated censors, blocking speech in advance of any judicial determination that it is unprotected.” The software producers, they argue, “arbitrarily and irrationally block speech that is fully protected.” As examples of blocked speech, the plaintiffs cite AfraidToAsk.com, a site that provides online medical advice about highly personal health care issues, SaferSex.org, and several harmless but unfortunately named sites like the-strippers.com, which advertises wood furniture varnish removal services. But government lawyers say their experts will prove that filtering software can be tailored to allow access to any site that a library does not want blocked, and that most programs also allow librarians to monitor the blocking so that they can identify instances in which patrons were barred from seeing a site that is not obscene. Legally, the government argues, the filtering software does not need to be perfect. “Congress was well aware that filtering products cannot perfectly distinguish legal from illegal Web sites, but can, and do, serve to limit or restrict … access to bestiality sites, hardcore pornography sites, and other such material that has not traditionally been included in public library collections, and that may, under local, state, or federal law, constitute illegal content.” CIPA is constitutional, the Justice Department lawyers say, because it is “consistent with a long line of Spending Clause provisions through which Congress has encouraged federal funding recipients to take pragmatic steps to prevent some national ill, even if they cannot stop it altogether.” As an example, they cite the law requiring states that receive federal highway funds to raise the drinking age to 21 which survived a court challenge even though it did not eliminate underage drinking. “If perfect elimination of a national problem were required before a regulatory act of government were to withstand national scrutiny, few regulations would exist today.” One of the key battles in the trial will be over the test the court should employ in analyzing the challenge. The plaintiffs insist that CIPA must be subjected to “strict scrutiny” because it amounts to a “prior restraint.” But government lawyers argue that the plaintiffs’ claim to strict scrutiny has no legal basis since it “is premised entirely upon their assertion that patrons have a constitutional right to unfettered access to the Internet and that Web publishers have an absolute right to speak to a library audience.” Instead, they say, a library is a “limited public forum” and librarians have always had the power to carefully choose their collections. “The fact that libraries must take affirmative steps to exclude this material when it appears on the Internet is merely testament to the obvious fact that the Internet reverses the flow of information into the public library; whereas public librarians traditionally exercise great care in selecting material for inclusion in their physical collections, and consciously exclude pornographic materials, librarians can unwittingly receive potentially illegal material over the Internet, or they can take steps to exclude it,” they wrote.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.