On "Filtering and the First Amendment"

Since Deborah Caldwell-Stone's American Libraries article "Filtering and the First Amendment" covers similar ground to my earlier essay "Public Forum Doctrine in U.S. v. American Library Association," I'd like to do some friendly nit-picking.

Quick Background

In the United States, public and school libraries are bribed (rather than coerced) into filtering Internet access for minors. This is done through CIPA, the Children's Internet Protection Act. In 2003, the constitutionality of CIPA was challenged but upheld in U.S. v. American Library Association.

Clarity

Caldwell-Stone's article is helpful because misconceptions about the requirements of CIPA are indeed widespread:

"Often, it is because the institutions and individuals responsible for implementing these policies misunderstand or misinterpret CIPA and the Supreme Court decision upholding the law. Among these misunderstandings is a belief that an institution will lose all federal funding if it does not block all potentially inappropriate sites to the fullest extent practicable, or that the Supreme Court decision authorized mandatory filtering for adults and youths alike. Another mistaken belief is that it does not violate the First Amendment to impose restrictive filtering policies that deny adults full access to constitutionally protected materials online." (Caldwell-Stone, 2013)

I appreciate the way she raises awareness that CIPA policies aren't legal requirements and that no library's filtering has been judged too lax to qualify. If a library doesn't want to filter, they don't have to filter! If a library wants to filter lightly, they can still collect CIPA funds.

Not So Clear

My nit-picking concerns the last sentence of the quote above. Caldwell-Stone is correct that US v. ALA did not authorize mandatory filtering for adults, but the Supreme Court didn't forbid it either. Legally, it's an open question. Caldwell-Stone evidently feels strongly that such filtering violates the First Amendment (a very respectable position to have!), but it's easy for readers to be misled when legal facts and legal hopes are presented in parallel phrases.

This bit is also problematic:

"Does CIPA itself, or the 2003 Supreme Court opinion, actually authorize a library to limit an adult’s access to constitutionally protected speech? A close reading of the district court’s opinion reveals that it fails to address the Supreme Court’s directive: Libraries subject to CIPA should disable filters for adult users to assure their First Amendment rights." (Caldwell-Stone, 2013)

The Supreme Court gave no such "directive." There was no majority opinion (at all), and no such directive can be found in the plurality opinion. In fact, none of the six judges concurring in judgment said so. The Court's language is along these lines:

"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." (US v. ALA, Opinion of the Court)

Note the qualifier "assuming." The Court isn't taking a position on whether or not "such erroneous blocking presents constitutional difficulties." Suppose it were a problem for libraries to block constitutionally protected speech: easy disabling would be an antidote. Suppose it weren't a problem to block such speech: now it's an unnecessary antidote. Since this specific case didn't hinge on the constitutionality of "such erroneous blocking," the judges didn't—and couldn't—rule on the issue.

Another concurring judge wrote:

"If some libraries do not have the capacity to unblock specific Web sites or to disable the filter or if it is shown that an adult user’s election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge, not the facial challenge made in this case." (US v. ALA, Kennedy's concurrence)

It's entirely reasonable to conclude that a library with mandatory filtering for adults might be judged as violating First Amendment rights, just as a state denying same-sex marriage licenses might be judged (very soon, one hopes) to be violating equal protection rights. Then again, either of these situations might be judged to be constitutional.

One last concurring judge:

"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." (US v. ALA, Breyer's concurrence)

Hopefully it's clear at this point that mandatory Internet filtering for adults is not clearly unconstitutional or constitutional. I applaud Caldwell-Stone for her explanations and her advocacy; I just wish she would separate the two a little more explicitly.

References

Caldwell-Stone, D. (April 2, 2013). Filtering and the first amendment. American Libraries. Retrieved from http://americanlibrariesmagazine.org/features/04022013/filtering-and-first-amendment

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