Thursday, April 12, 2012

Public Forum Doctrine in U.S. v. American Library Association

United States v. American Library Association was a 2003 Supreme Court case that examined the constitutionality of CIPA, the Children's Internet Protection Act.
"[CIPA] is a federal law enacted by Congress to address concerns about access to offensive content over the Internet on school and library computers. CIPA imposes certain types of requirements on any school or library that receives funding for Internet access or internal connections from the E-rate program – a program that makes certain communications technology more affordable for eligible schools and libraries." —
Basically: filter your Internet or miss out on federal funding.

The American Library Association led a lawsuit against CIPA on the grounds that filtering intended to block unprotected speech also inevitably blocks constitutionally protected speech, which violates the First Amendment rights of public library patrons. This legal argument had two critical points.
  1. Internet access in public libraries constitutes a public forum. Therefore content regulations are subject to strict scrutiny.
  2. CIPA fails under strict scrutiny because filtering is not narrowly tailored to the government's compelling interest in blocking unprotected speech ("obscenity, child pornography, or material harmful to minors"). 
Despite an earlier U.S. District Court ruling that CIPA was unconstitutional for these reasons, the Supreme Court ruled 6 to 3 in favor of CIPA. Unfortunately the breakdown of opinions was rather complicated:

Opinion of the Court (plurality) — Rehnquist, O'Connor, Scalia, and Thomas
Concurrence — Kennedy
Concurrence — Breyer
Dissent — Stevens
Dissent — Souter, Ginsberg

Since the Opinion of the Court represented a mere plurality rather than a majority, only its judgment — not its rationale on the whole — is authoritative. On the other hand, a plurality of four justices only needs one concurring justice to agree with part of its rationale for that part to count as a majority (authoritative) rationale. One such rationale for finding CIPA constitutional was simply this: Internet access in public libraries does not constitute a public forum.
"Internet access in public libraries is neither a 'traditional' nor a 'designated' public forum." — Opinion of the Court

"The public forum principles on which the District Court relied [...] are out of place in the context of this case. In determining whether the statute's conditions consequently violate the First Amendment, the plurality first finds the "public forum" doctrine inapplicable [...], and then holds that the statutory provisions are constitutional. I agree with both determinations." — Breyer's concurrence
Nothing more really needed to be said before reversing the District Court's ruling. Without classification as a public forum, Internet filtering isn't subject to strict scrutiny and so it doesn't need to be "narrowly tailored." For the sake of argument, however, the plurality went on to comment:
"Assuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled." — Opinion of the Court
This was important guidance for libraries or legislatures interested in avoiding any chance of "constitutional difficulties." Everyone could rest assured that strict scrutiny was off the table, but U.S. v. ALA did not settle the question of which lower standard of judicial review might apply. Breyer and the plurality did not agree on this point:
"Just as forum analysis and heightened judicial scrutiny are incompatible with the role of public television stations and the role of the NEA, they are also incompatible with the discretion that public libraries must have to fulfill their traditional missions. Public library staffs necessarily consider content in making collection decisions and enjoy broad discretion in making them." — Opinion of the Court

"Instead, I would examine the constitutionality of the Act's restrictions here as the Court has examined speech-related restrictions in other contexts where circumstances call for heightened, but not 'strict,' scrutiny--where, for example, complex, competing constitutional interests are potentially at issue or speech-related harm is potentially justified by unusually strong governmental interests. Typically the key question in such instances is one of proper fit." — Breyer's concurrence
So it's unclear whether the selection decisions of library staff are subject to heightened scrutiny or merely rational review. This uncertainty is compounded by the uncertainty of what would happen in any particular instance of applying heightened scrutiny; it's a vague standard.

The Other Four Justices

How did Kennedy's concurrence play into all this? He ignored the question of public forum doctrine and jumped straight into the plurality's hypothetical situation wherein strict scrutiny is applied and CIPA passes anyway because adults can request to have the filter disabled.

Both dissents treated Internet access in public libraries as a public forum then went on to characterize filtering as overly broad — rather than narrowly tailored — for the purpose of shielding children from unprotected speech.

Conflicting Interpretations Today

In the current edition of the American Library Association's Intellectual Freedom Manual, Theresa Chmara writes:
"In sum, public libraries must remain cautious about using filtering. Ultimately, the CIPA scheme was upheld because it was tied to funding and the government conceded that an adult’s request for disabling of the filter could never be denied and did not have to be justified. The Supreme Court also left no doubt that in a case challenging the application of filtering software, a library would be liable if it did not disable a filter to provide access to constitutionally protected material." (OIF, p. 345)
Despite this, a library system in rural Washington State has chosen to filter all computers without the option to entirely disable filtering on request, even when constitutionally protected material stays blocked as a result. Just this week, a U.S. District Court ruled in favor of the library system's choice of filtering policy. The District Court cites U.S. v. ALA to say that strict scrutiny is inappropriate; it also cites a Ninth Circuit decision in support of rational review when government services are allowed to make content choices. Notice how the plurality's support of rational review in the Supreme Court case was not used, because — as shown above — concurring justices did not elevate the plurality rationale to a majority rationale on this point.

On a careful reading of U.S. v. ALA, the constitutionality of refusing to disable filters for adults was left an open question. The plurality opinion and both concurrences brought up the issue of filter disabling only to say that prompt disabling would satisfy any level of judicial review. It's an unwarranted leap of logic to infer that slow disabling (or refusal to disable) would fail to satisfy some level of review. It might, but none of the six justices concurring in judgment actually said so. Breyer made this clear when he wrote:
"Perhaps local library rules or practices could further restrict the ability of patrons to obtain 'overblocked' Internet material. [...] But we are not now considering any such local practices. We here consider only a facial challenge to the Act itself." — Breyer's concurrence
The case from Washington State is likely to be appealed. Must filters be disabled on request? Can public libraries deliberately block constitutionally protected speech? Neither side has reason to give up just yet.


Office for Intellectual Freedom (OIF). (2010). Intellectual Freedom Manual (8th ed.). Chicago, IL: American Library Association.

United States v. American Library Association, 539 U.S. 194 (2003).

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