SCN: Filter fight

[Steve]

x-no-archive: yes

======================

Free-Speech Advocates Fight Filtering Software in Public Schools  

(Carl S. Kaplan, NY Times)---One month after Congress passed a law 
pressuring public schools and libraries to install blocking or filtering 
software on computer terminals to screen out Internet smut, three 
free-speech powerhouses are gearing up to slay the measure in 
federal court.  

"This law requires, for the first time in the nation's history, that local 
libraries censor speech for every adult and every child. That's got to 
present First Amendment problems," said Chris Hansen, a senior 
staff attorney with the American Civil Liberties Union, referring to the 
new federal statute, known as the "Children's Internet Protection 
Act."  

Hansen said that the A.C.L.U. will file a lawsuit within two months 
attacking the constitutionality of the law, possibly in federal district 
court in Philadelphia. He said the lawsuit's named plaintiffs will 
include several libraries, library patrons (adults and possibly 
children) and Web site publishers.  

Philadelphia is a charmed city for the civil liberties union. In recent 
years, the group successfully challenged in federal court there two 
other laws aimed at restricting online sexual content: the 
Communications Decency Act and the Children's Online Protection 
Act. Portions of the decency act were ultimately struck down in 1997 
by the United States Supreme Court in a landmark cyberlaw case, 
Reno v. A.C.L.U. More recently, the United States Court of Appeals 
for the Third Circuit, in Philadelphia, affirmed a lower court ruling 
that Children's Online Protectgion Act violated the First Amendment. 
The government is weighing an appeal to the Supreme Court in that 
case.  

In addition to the A.C.L.U.'s planned legal campaign, the executive 
board of the American Library Association gave the green light 
earlier this week to a lawsuit against the new filtering law, according 
Judith Krug, director of the library group's office for intellectual 
freedom. The library association, which strongly opposes library 
filtering schemes, participated in the widely-publicized legal 
challenge to the Communications Decency Act. Krug said the library 
group's suit would likely be separate from the A.C.L.U.'s, although 
the two lawsuits could later be consolidated by the courts.  

Meanwhile, the People for the American Way Foundation, another 
civil liberties group, is planning a legal attack on the new law as 
well, according to Larry Ottinger, a senior staff attorney for the 
organization. The group, along with the A.C.L.U., successfully 
defeated a mandatory library filtering policy in Loudoun, Va., in 
1998.  

The law in question, spearheaded through Congress by Senator 
John McCain and signed by President Clinton last month, is 
complex. But in simple terms it requires public libraries that receive 
E-rate funds -- money from a federal program that subsidizes 
Internet and other telecommunications expenses -- to install some 
sort of technology on computer terminals used by adults to block 
Internet access to visual images that are obscene or depict child 
pornography.  

For library computer terminals used by children under age 17, 
libraries have to screen out these two categories of material plus a 
third one: visual material that is "harmful to minors," such as 
sexually-explicit images without social or educational value that are 
obscene for children but legally protected for adults. Under the new 
law, a library staff member has authority to unblock any computer 
for a patron's legitimate research purposes.  

The law imposes an identical scheme of Internet blocking 
requirements and exceptions for public schools that use E-rate 
funds. School and library administrators are free to decide which 
filtering or blocking system best fits their community standards and 
local needs.  

Backers of the law point to the increased use of the Internet by 
children and the corresponding need for schools and libraries to 
embrace front-line protection policies.  

"While schools and libraries across the country increasingly use 
the Internet as a learning tool, we need to ensure that pervasive 
obscene and violent material is screened out and that our children 
are protected," Senator McCain said in a prepared statement last 
month after the law was passed. "This legislation allows local 
communities to decide what technology they want to use and what to 
filter out so that our children's minds aren't polluted."  

Opponents say that although the law's intentions may be laudable, it 
nonetheless tramples on important constitutional rights.  

The American Civil Liberties Union seems to be furthest along in its 
legal preparation for the lawsuit. In an interview, Hansen sketched 
out the lines of his group's planned legal assault, which will focus 
on the law's filtering scheme for libraries. He said the said the 
A.C.L.U. has not yet decided whether to challenge the school-based 
filtering program. Schools, he conceded, have a legally recognized 
teaching function and quasi-parental function that public libraries 
don't have. Working with Hansen on the brief will be Ann Beeson, 
staff counsel for the A.C.L.U. and a veteran of past Internet speech 
cases, and possibly some private lawyers participating on a pro 
bono basis.  

In Hansen's eyes, the law is flawed for many reasons. For one 
thing, he said, it is subject to the high standard of "strict scrutiny" 
under the First Amendment and thus can only survive if it is 
necessary to serve a compelling state interest and is narrowly 
drawn to achieve that end. Even assuming that there is a compelling 
and real state interest at stake -- which Hansen said he doubts -- he 
asserted that the law is not narrowly tailored. Filtering software by 
its nature will always "over block" protected speech that is "not 
even in the ballpark" of sexually explicit material, he said, recalling 
that in the Loudoun library filtering case of 1998 the court found that 
the software program used by the library blocked such innocuous 
sites as the Center for Reproductive Law and Policy and a Quaker 
home page.  

There's a different type of over blocking that Hansen is worried 
about as well. Obscene speech is speech that has been declared 
obscene by a court, he said. "A policeman can't walk into a 
bookstore and seize all the books he thinks are obscene. The cop 
has to buy one book, take it to court and get the judge to declare it 
obscene," Hansen said. Yet no filtering software is designed to 
block out sites that local courts have declared to be obscene.  

Another First Amendment problem with the law is that it relies on 
"automatic censorship" by software filters, which are programmed 
by employees at commercial companies, Hansen said. "We think 
these kind of judgments need to be made by judges," he said. 
Because filtering lists maintained by companies are secret and 
there are no adequate procedures for appealing blocking decisions, 
the law is an unconstitutional prior restraint on speech, Hansen 
said.  

Beyond the First Amendment issues, Hansen sees other flaws. 
Many people who use libraries for Internet access are those not rich 
enough to own a home computer, he observed. The law's effect 
would therefore be to create a kind of second- class passport to the 
Internet for these citizens, many of whom may be minorities. "That 
may be a violation of the equal protection clause" of the 
Constitution, he said.  

Finally, although the new law "pays lip service" to local control of 
filtering decisions, Hansen said, the statue in essence "requires a 
uniform, national book-removal policy." That creates a "federalism 
problem," he explained, adding that there are certain situations 
where the federal government does not have the authority to impose 
requirements on local communities.  

David Crane, a staffer at the Senate Commerce Committee who 
helped shepherd the new law through Congress, is quick to predict 
that the statute will pass constitutional muster.  

As a general matter, he took issue with those who characterize the 
law as a form of government censorship. He maintained that it is a 
lawful funding statute that places reasonable conditions on those 
who accept E-rate monies. "If the government passes a criminal 
statute, it is mandating that people behave in a certain way," he 
said. "In this case, it's a voluntary program. The school or library 
can choose not to take the money" and not be part of the program, 
he said.  

Rebutting the A.C.L.U. charge that filtering software blocks more than 
it should, Crane said that "to make that categorical statement is 
reckless and irresponsible." He said that the Commerce Committee 
heard testimony from software manufacturers that pinpoint filtering 
was feasible.  

Crane also disagreed with the claim that the law gives rise to 
automated blocking. He said that under the law, local school and 
library administrators were responsible for putting a filtering policy 
into place, based on local standards, and for choosing the 
appropriate software tools. "The community is making all these 
decisions," he said. "There is no prior restraint."  

One thing the opposing sides agree upon is that any lawsuit filed in 
Philadelphia won't end there. "We anticipated a legal challenge and 
the law itself provides for expedited review," said Crane. "The final 
arbiter on this will be the Supreme Court."  

Copyright 2001 The New York Times Company  





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