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Author: United States District Court for the Eastern District of Pennsylvania
Edition: 10
Language: English
*** START OF THE PROJECT GUTENBERG EBOOK, CHILDREN'S INTERNET PROTECTION ACT
(CIPA) RULING ***
CONTENTS
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
Users may find content on the Web using engines that search
for requested keywords. In response to a keyword request, a
search engine will display a list of Web sites that may contain
relevant content and provide links to those sites. Search
engines and directories often return a limited number of sites in
their search results (e.g., the Google search engine will return
only 2,000 sites in response to a search, even if it has found,
for example, 530,000 sites in its index that meet the search
criteria).
A user may also access content on the Web by typing a URL
(Uniform Resource Locator) into the address line of the browser.
A URL is an address that points to some resource located on a
Web server that is accessible over the Internet. This resource
may be a Web site, a Web page, an image, a sound or video file,
or other resource. A URL can be either a numeric Internet
Protocol or "IP" address, or an alphanumeric "domain name"
address. Every Web server connected to the Internet is assigned
an IP address. A typical IP address looks like "13.1.64.14."
Typing the URL "http://13.1.64.14/" into a browser will bring the
user to the Web server that corresponds to that address. For
convenience, most Web servers have alphanumeric domain name
addresses in addition to IP addresses. For example, typing in
"http://www.paed.uscourts.gov" will bring the user to the same
Web server as typing in "http://204.170.64.143."
Every time a user attempts to access material located on a
Web server by entering a domain name address into a Web browser,
a request is made to a Domain Name Server, which is a directory
of domain names and IP addresses, to "resolve," or translate, the
domain name address into an IP address. That IP address is then
used to locate the Web server from which content is being
requested. A Web site may be accessed by using either its domain
name address or its IP address.
4. Summary
In sum, we reject a public library's interest in preventing
unlawful or otherwise inappropriate patron conduct as a basis for
restricting patrons' access to speech on the Internet. 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. We
believe, however, that the state interests 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, could all justify, for First Amendment
purposes, a public library's use of Internet filters, provided
that use of such filters is narrowly tailored to further those
interests, and that no less restrictive means of promoting those
interests exist. Accordingly, we turn to the narrow tailoring
question.
2. Narrow Tailoring
Reno, 521 U.S. at 865 (citation omitted); see also Ginsberg, 390
U.S. at 639 ("It is cardinal with us that the custody, care, and
nurture of the child reside first in the parents, whose primary
function and freedom include preparation for obligations the
state can neither supply nor hinder." (quoting Prince v.
Massachusetts, 321 U.S. 158, 166 (1944))).
United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 812,
826 (2000) (invalidating a federal law requiring cable television
operators to limit the transmission of sexually explicit
programming to the hours between 10:00 p.m. and 6:00 a.m.); see
also Fabulous Assocs., 896 F.2d at 785 ("[H]ere . . . there is no
outright prohibition of indecent communication. However, the
First Amendment protects against government inhibition as well as
prohibition.") (internal quotation marks and citation omitted).
Even if CIPA's disabling provisions could be perfectly
implemented by library staff every time patrons request access to
an erroneously blocked Web site, we hold that the content-based
burden that the library's use of software filters places on
patrons' access to speech suffers from the same constitutional
deficiencies as a complete ban on patrons' access to speech that
was erroneously blocked by filters, since patrons will often be
deterred from asking the library to unblock a site and patron
requests cannot be immediately reviewed. We therefore hold that
CIPA's disabling provisions fail to cure CIPA's lack of narrow
tailoring.
5. Conclusion; Severability
___________________________
Edward R. Becker, Chief Circuit
Judge
IN THE UNITED STATES DISTRICT COURT
ORDER
__________________________________
Ch. Cir. J.
__________________________________
J.
__________________________________
J.
FOOTNOTES
Look carefully at each of the Web sites on the list. Please make
a notation of any site that appears to meet any of the following
criteria:
or
or
531 U.S. at 543. By the same token, CIPA arguably distorts the
usual functioning of public libraries both by requiring libraries
to: (1) deny patrons access to constitutionally protected speech
that libraries would otherwise provide to patrons; and (2)
delegate decision making to private software developers who
closely guard their selection criteria as trade secrets and who
do not purport to make their decisions on the basis of whether
the blocked Web sites are constitutionally protected or would add
value to a public library's collection.
At all events, CIPA clearly does not seem to serve the
purpose of limiting the extent of government speech given the
extreme diversity of speech on the Internet. Nor can Congress's
decision to subsidize Internet access be said to promote a
governmental message or constitute governmental speech, even
under a generous understanding of the concept. As the Court
noted in Reno v. ACLU, 521 U.S. 844 (1997), "[i]t is no
exaggeration to conclude that the content on the Internet is as
diverse as human thought." Id. at 852 (internal quotation marks
omitted). Even with software filters in place, the sheer breadth
of speech available on the Internet defeats any claim that CIPA
is intended to facilitate the dissemination of governmental
speech. Like in Velazquez, "there is no programmatic message of
the kind recognized in Rust and which sufficed there to allow the
Government to specify the advice deemed necessary for its
legitimate objectives." Velazquez, 531 U.S. at 548.
In sum, we think that the plaintiffs have good arguments
that they may assert an unconstitutional conditions claim by
relying either on the public libraries' First Amendment rights or
on the rights of their patrons. We also think that the
plaintiffs have a good argument that CIPA's requirement that
public libraries use filtering software distorts the usual
functioning of public libraries in such a way that it constitutes
an unconstitutional condition on the receipt of funds. We do not
decide these issues, confident that our findings of fact on the
functioning of public libraries, their use of the Internet, and
the technological limitations of Internet filtering software, see
supra Sections II.D-E, would allow the Supreme Court to decide
the unconstitutional conditions claim if the Court deems it
necessary.
*** END OF THE PROJECT GUTENBERG EBOOK, CHILDREN'S INTERNET PROTECTION ACT (CIPA)
RULING ***
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