- The Washington Times - Wednesday, November 13, 2002

The Supreme Court yesterday agreed to review the constitutionality of a federal law that punishes public libraries that don't block Internet access to more than 100,000 pornography sites.
Justices will hear arguments early next year on an order striking down the Children's Internet Protection Act of 2000 (CIPA) as unconstitutional.
The case was decided by a special three-judge District Court in Philadelphia, and the Bush administration used an unusual fast-track provision to appeal directly to the Supreme Court.
The high court has blocked enforcement, on First Amendment grounds, of two other federal laws passed since 1996 to shield children from adult-oriented sexual material on the Internet.
This latest appeal by the American Library Association and public libraries contests a law that has similar goals but different methods, wielding the threat of losing federal funds.
Lawyer Janet M. Larue, who supported the law in the Philadelphia case for the Family Research Council, yesterday called that method the key difference from decisions that struck down the 1996 Communications Decency Act and continued an injunction against enforcing the 1998 Child Online Protection Act.
The CIPA challenge in effect attacks the federal right to cut off funding by taxpayers, even though it does not remove any material from the Internet or prosecute anyone for accessing it. The act affects benefits worth $100,000 or more to some libraries under the Library Services and Technology Act, and discounted Internet rates provided by the Telecommunications Act.
"There's no First Amendment right to access obscenity and child pornography with taxpayer funds," said Mrs. Larue, now chief counsel of Concerned Women for America.
"The court said adult patrons might be embarrassed to ask a librarian to unblock filtered sites. They created a First Amendment right not to be embarrassed, and applied the scrutiny reserved for constitutionally protected speech to speech that has no constitutional protection obscenity and child porn," she said.
U.S. Solicitor General Theodore Olson echoed her words, telling the justices the lower court derailed a congressional effort to assure that federal spending "for educational and other purposes does not facilitate access to the enormous amount of illegal and harmful pornography on the Internet."
An estimated 14.3 million Americans access the Internet from public libraries, and 95 percent of all libraries provide access, said the three-judge panel that ruled the law unconstitutional.
"In view of the limitations inherent in the filtering technology mandated by CIPA, any public library that adheres to CIPA's conditions will necessarily restrict patrons' access to a substantial amount of protected speech, in violation of the First Amendment," said the ruling, written by Chief Circuit Judge Edward R. Becker, a Nixon appointee.
Judge Becker's opinion was joined by District Judges John P. Fullam, the only Johnson appointee still serving, and Harvey Bartle III, a 1991 Bush nominee.
The libraries drew support from the American Civil Liberties Union and People for the American Way, both of which prefer the term "blocking software" to "filtering software," which is used by the court and the law's proponents.
The American Library Association argued that CIPA "takes a meat-ax approach to an area that requires far more sensitive tools."
ACLU lawyers said, "Librarians are forced to block a list of sites without even knowing what sites are blocked," because filters "overblock" nonsexual material and shut out text as well as pictures.
"No product exists that will block the categories of speech listed in the law without also blocking huge amounts of speech that everyone agreed was valuable, constitutionally protected speech. Most importantly, no product even claims to do the job," the ACLU said.
The lower court agreed with the challengers, and identified less restrictive methods to control Internet use. They include allowing youths to use unfiltered computers only with parental consent or a parent present.
"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," the court said.
The state of Texas filed a Supreme Court brief supporting the law.
"Parents should not be afraid to send their children to the library, either because they might be exposed to such materials or because the library's free, filterless computers might attract people with a propensity to victimize children," said the Texas brief filed by Attorney General John Cornyn, a Republican who won a U.S. Senate seat in last week's election.

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