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Striking down key provisions of the Children’s Internet Protection Act as unconstitutional, a special three-judge U.S. District Court in Philadelphia has ruled that Congress went too far when it threatened to pull certain federal funds from any public library that failed to install “filtering” software to block access to sexually explicit Web sites. The judges found that the law runs afoul of the First Amendment because filtering software simply blocks too much and that mandating its use would therefore force libraries to censor the speech of millions of Internet speakers. “Commercially available filtering programs erroneously block a huge amount of speech that is protected by the First Amendment,” Chief Judge Edward R. Becker of the 3rd U.S. Circuit Court of Appeals wrote in a 198-page decision in American Library Association v. United States. (Decision in Word format.) Becker, who was joined by U.S. District Judges John P. Fullam and Harvey Bartle III, found that the government failed to show the law was “narrowly tailored.” “The First Amendment demands the precision of a scalpel, not a sledgehammer,” Becker wrote. In a rarely used provision, Congress mandated that any appeal of Friday’s decision will go directly to the U.S. Supreme Court which is required under the law to take up the case. The ruling was applauded by the American Library Association and the American Civil Liberties Union, who had argued that the law would make it tougher for people without home computers to get information on topics such as breast cancer and homosexuality, which are sometimes accidentally blocked by the filters. Stefan Presser, the ACLU’s legal director in Pennsylvania, said he hopes the ruling will convince Congress to give up its effort to regulate speech on the Internet since the courts have also struck down two previous laws — the 1996 Communications Decency Act and the 1998 Child Online Protection Act. “It is certainly my hope that now that Congress has taken three strikes it will get out of the business,” Presser said. ANALYSIS OF FILTERING SOFTWARE Becker’s opinion opens with a three-page table of contents which shows that about half the decision is devoted to fact-finding. One of the largest sections in the fact-finding focuses on the technology of filtering software — who makes it, what it does and how it works. The court concluded that all filtering software suffers from two key flaws — “overblocking,” in which the software blocks access to protected speech, and “underblocking,” in which it fails to block sites that include material that is obscene or harmful to minors. And since the Internet keeps expanding everyday, the court concluded that the software will never be good enough. “No presently conceivable technology can make the judgments necessary to determine whether a visual depiction fits the legal definitions of obscenity, child pornography, or harmful to minors. Given the state of the art in filtering and image recognition technology, and the rapidly changing and expanding nature of the Web, we find that filtering products’ shortcomings will not be solved through a technical solution in the foreseeable future,” Becker wrote. Government lawyers urged the court to uphold the law unless the plaintiffs could show that any public library that complies with CIPA’s conditions will necessarily violate the First Amendment. Plaintiffs’ lawyers insisted that the test was not so strict and that they were required only to show that CIPA would effectively restrict library patrons’ access to “substantial amounts” of constitutionally protected speech, therefore causing many libraries to violate the First Amendment. Becker took the easy way out, saying the government lost even under the stricter test. “We believe that CIPA’s constitutionality fails even under this more restrictive test of facial validity urged on us by the government. Because of the inherent limitations in filtering technology, public libraries can never comply with CIPA without blocking access to a substantial amount of speech that is both constitutionally protected and fails to meet even the filtering companies’ own blocking criteria,” Becker wrote. LIBRARY AS PUBLIC FORUM One of the key battles in the case was over whether a public library is a public forum. Government lawyers argued that librarians already exercise considerable discretion in choosing a library’s collection of books. As a result, they said, a public library is a “limited public forum” whose content-based decisions are constitutional so long as they are “rational.” But plaintiffs’ lawyers insisted that the court should subject CIPA to “strict scrutiny” since it attempts to regulate the Internet, a forum that is separate from the library’s book collection and more closely resembles the town square. Becker sided with the plaintiffs, saying “the relevant forum for analysis is not the library’s entire collection, which includes both print and electronic media, such as the Internet, but rather the specific forum created when the library provides its patrons with Internet access.” The Internet, Becker said, has been described by the U.S. Supreme Court as a “vast democratic forum” that is open to any member of the public to speak on subjects “as diverse as human thought.” As a result, Becker said, if a public library provides Internet access and then “selectively excludes” certain speech on the basis of its content, courts must employ the strict scrutiny test. “These exclusions risk fundamentally distorting the unique marketplace of ideas that public libraries create when they open their collections, via the Internet, to the speech of millions of individuals around the world on a virtually limitless number of subjects,” Becker wrote. “When public libraries provide their patrons with Internet access, they intentionally open their doors to vast amounts of speech that clearly lacks sufficient quality to ever be considered for the library’s print collection. Unless a library allows access to only those sites that have been preselected as having particular value … even a library that uses software filters has opened its Internet collection for indiscriminate use by the general public,” Becker wrote. Government lawyers argued that one of CIPA’s goals was to protect library patrons from being harassed by other patrons who wanted to use the Internet access for sexually explicit or even illegal material. But Becker found there were better ways of solving the problem. “The proper method for a library to deter unlawful or inappropriate patron conduct, such as harassment or assault of other patrons, is to impose sanctions on such conduct, such as either removing the patron from the library, revoking the patron’s library privileges, or, in the appropriate case, calling the police,” Becker wrote. Becker agreed, however, that the government has a legitimate interest in “preventing the dissemination of obscenity, child pornography, or in the case of minors, material harmful to minors, and in protecting library patrons from being unwillingly exposed to offensive, sexually explicit material.” But even such a valid goal can’t save a law that isn’t “narrowly tailored,” Becker said. On that point, Becker said, CIPA is fatally flawed. “Given the substantial amount of constitutionally protected speech blocked by the filters studied, we conclude that use of such filters is not narrowly tailored with respect to the government’s interest in preventing the dissemination of obscenity, child pornography, and material harmful to minors,” Becker wrote. “Given the inherent limitations in the current state of the art of automated classification systems, and the limits of human review in relation to the size, rate of growth, and rate of change of the Web, there is a tradeoff between underblocking and overblocking that is inherent in any filtering technology,” Becker wrote. Related decision: American Library Association v. United States (Word format, 198 pages).

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