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TechNews.com: Challenging the Children's Internet Protection Act
Guest: Paul M. Smith, lead attorney representing the American Library Association

Wednesday, March 5, 2003, 3 p.m. ET

On Wednesday, March 5, the Supreme Court heard arguments in United States v. American Library Association, a case testing the constitutionality of a law designed to protect school children and library users from being exposed to pornography and other restricted speech.

The Children's Internet Protection Act requires public schools and libraries to install Internet filters on their computers so children and adults cannot view "inappropriate" information on the Internet. The law, originally passed in 2000, is being challenged by the American Library Association and others on the grounds that Internet filters could block access to First Amendment-protected information.

Paul Smith, the lead attorney representing the American Library Association, joined washingtonpost.com for a live online to discuss the case and how the justices reacted to his arguments and those of the government. Smith is a partner in Jenner & Block's Washington office.

Smith was online earlier today. Washingtonpost.com reporter David McGuire moderated the discussion.


Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.


David McGuire: We're joined today by Paul Smith, who earlier today gave an oral argument before the Supreme Court on behalf of the American Library Association (ALA), which is challenging the controversial Children's Internet Protection Act (CIPA). Thanks for being with us Paul. Would you mind telling us a little bit about what CIPA does, and why the ALA believes it to be unconstitutional?

Paul M. Smith: The statute attached conditions to two sources of federal subsidy for internet connections in public libraries. The libraries that accept the subsidy -- which at this point includes most public libraries in America -- are required to mandate use of filtering software by all patrons accessing the internet in their libraries. The only exception is where an adult patron goes to the supervisor and makes a case that he needs the filter turned off so he can use the internet unfiltered for a "bona fide research or other lawful purpose."

The ALA believes this law is unconstitutional because it asks libraries to treat their patrons in a manner that is itself constitutionally problematic. The internet, in our view, is a "public forum" within the meaning of the Court's First Amendment jurisprudence. That means that libraries cannot make it available and then edit out one area of disfavored content. The problem is particularly acute here because the software blocks not only sexually explicit material but also a large number of sites that are not sexually explicit at all.

In other words, we see a fundamental difference between book acquisition -- an area where librarians have to make content-based judgment calls -- and providing the Internet, where they don't.

Our second point is that even if the Internet in the library context is the same as book acquisition, the federal government has not business tampering with either one. Libraries, like public universities, ought to be immunized under the First Amendment from efforts by Congress to use the Spending Power to push them toward a particular policy choice about the information available to patrons.

Chicago, Ill.: Intellectual freedom is a basic right in a democratic society and a core value of the library profession. The American Library Association actively defends the right of library users to read, seek information, and speak freely as guaranteed by the First Amendment. The First Amendment protects LEGAL rights; is not sexually explicit/pornographic material received or sent electronically ILLEGAL? If I am mistaken, please clarify.

Paul M. Smith: Nearly all sexually explicit material is LEGAL for adults. The exceptions -- obscenity, child pornography -- are quite narrow. There is a broader category of speech that can constitutionally be banned for children, called harmful to minors speech. The filters, of course, also block lots of speech by mistake that is not about sex at all.

Tampa, Fla: I have heard one official from your association suggest that some libraries might want to put their Internet terminals in a private spot so people won't get offended by any pornographic material that might pop up. But doesn't this defeat the purpose of providing free Internet access to all who visit the library? Certainly it would not be a good idea for kids to come to this "private corner" if pornographic material can flash across a screen at any moment.

Paul M. Smith: The technique discussed at trial was using recessed monitors that allow only the user to see what's on the screen. That protects the user's privacy and the sensibilities of passers-by.

Alexandria, Va.: What does the ALA find so objectionable about local communities determining what is appropriate content for public computers to access on the Internet?

Paul M. Smith: Actually, the law at issue here attempts to impose a single national standard of restrictiveness. One of our arguments is that even if local librarians can constitutionally filter the internet, the feds shouldn't be able to impose that through a funding condition.

Chicago, Ill.: Do you think any constitutional means exist for prohibiting library patrons -- adult or minor -- from viewing obscene materials?

Paul M. Smith: It's already prohibited. As to enforcement -- either through filters or some other means -- the problem is that no one knows which sites cross the line from merely sexually explicit to obscene.

Melrose, Mass.: I am desperately interested in this case. What kinds of questions did the justices ask, and any speculations based on their arguments as to how any of them might rule?

Paul M. Smith: We had lots of questions about how the First Amendment applies in a library context -- whether it should be relaxed there so that editing the Internet can be treated like book-buying decisions. There were also lots of questions about whether the law has any real teeth, given the authorization to turn the filters off for adults on request.
I don't speculate about the outcome, although it's fair to say the Court will be divided.

Arlington, Va.: They say that American democracy is the worst system of government in the world with the exception of all the other systems. Doesn't this old saw apply to Internet filtering as well? If I had kids, I wouldn't want them to see porn online. I couldn't possibly take them to the library all the time, so I can't be a 100 percent supervisor on their activities. So what's a parent to do? Hope the library errs toward a conservative filter policy, or else just accept that my kid will know about bondage gear before he ought to?

Paul M. Smith: There are lots of ways to protect kids in the library short of mandating filtering for everyone. For one thing, the filters let through a great deal of sexually explicit speech, and thus tend to create a false sense of security.
Certainly we have pointed to systems under which parents can make the choice for their kids and where adults can make the choice for themselves. You can also have careful supervision and lots of training in the children's room, and try to shield the monitors of adults through recessed monitors, etc. The trial court found that these less restrictive options would be more effective.

Melrose, Mass.: Did the technological problems of filtering come up in the oral arguments? The problems of too many legal sites being blocked arbitrarily?

Paul M. Smith: That was a large part of the case and of our presentations.

Arlington, Va.: Did either of the most conservative judges -- Scalia and Thomas -- weigh in today?

Paul M. Smith: As often occurs, Justice Scalia was very active and Justice Thomas kept his own counsel.

David McGuire: You mentioned the government's assertion that placing filters on the Internet is similar to giving librarians discretion in deciding what books they buy. What about that argument? How is filtering the Internet different from simply saying 'we don't want to buy erotic novels?'"

Paul M. Smith: As a constitutional matter, there is a big difference between buying books one at a time and letting the whole universe of content on the internet into the library and then excluding one particular portion of disfavored content. That's the essence of the First Amendment public forum doctrine.
For example, the Court has held that if you allow school buildings to be used after hours, on a first-come-first-served based, for community group meetings, that becomes a public forum and you can't discriminate based on content.

Chicago, Ill.: If filters "perfectly" matched the terms of the statute (obscenity, child pornography, material harmful to minors) would they still pose a constitutional problem? What if they were required by individual, local libraries who can't hold subsidy money over librarians' heads?

Paul M. Smith: If the filters only excluded speech that is constitutionally unprotected for the user involved, that would eliminate the problem. But that is impossible for multiple reasons. The legal categories are too vague. And the Internet is constructed in such a way that if you block sexually explicit sites you will also block a lot more.
For example, a sex site might have the I.P. address Often, that same numeric address (which I made up) is used for hundreds of other web sites. To block one you have to block them all.

Columbia, Md.: Did the American Library Assn. poll its members before it decided to oppose this law, or is this a case of a national organization getting out ahead of its grassroots membership?

Paul M. Smith: I don't know about a poll. That may have occurred. But the ALA has been strongly on record on this issue for many years and gives its members regular opportunities to voice dissent. The library community clearly believes that the costs of the law outweigh its benefits, in light of the other techniques available.
Only 7% of libraries have chosen to require filtering on their own.

Detroit, Mich.: How old do you think children should be before they're allowed to look at online porn? Never mind the public library issue.

Paul M. Smith: I don't have a personal view on that. I think parents should play the leading role in deciding that question.

Washington DC: The Court in 1997 in the ACLU v. Reno case seemed to suggest that filters were not at the point yet where they were a viable alternative to Congressional legislation. Did the Court seem to have a more favorable view of filters today?

Paul M. Smith: We had extensive findings about the flaws with the filters. I didn't detect anyone disagreeing with those findings factually, although there was some discussion attempting to ascertain how serious the problem really is in practice.
The facts show that a large percentage of the blocks imposed on users by filters are inappropriate. The district court said an estimate of 6-15% is too low. The facts also show that filters let through a fair amount of the targeted material as well.

McLean, Va.: Are there companies that you know of that are trying to develop filters that recognize the difference between, say, a site warning of the possible defects of a condom used for anal sex vs. a porn site splattered with keywords like "anal sex?" Sorry for the salty terminology, but it seems like we have a creative enough high-tech sector to produce something like this.

Paul M. Smith: Actually, the only method they've come up with so far is to look at the sites one by one. But despite claiming they do that, a remarkably high number of safe sex sites show up on the block list. They appear to be blocked at 10 times the rate of other health sites.
As for the future, our expert suggested that trying to come up with software that can screen effectively without human review is an almost insuperable problem. Certainly it won't happen anytime soon.

Chicago, IL: Did your arguments address the concern that filtering companies consider their URL lists proprietary, and may actually be engaging in viewpoint discrimination under the guise of child-friendly filters?

Paul M. Smith: Sure. We noted that they often block sites of critics of filtering. We also noted that the lists are secret, so the libraries who install the software don't actually know what's blocked until a block occurs.

David McGuire: The Supreme Court has heard previous challenges against laws seeking to prevent children from seeing obscene material online, but those laws have been directed at adult content providers, rather than schools and libraries. How does CIPA differ from those measures? In your opinion is it more or less damaging to First Amendment rights?

Paul M. Smith: It's difficult to say which kind of law has a worse impact. On the one hand, the Communications Decency Act, which required internet SPEAKERS to segregate all "indecent" material behind screens requiring adult IDs or credit cards, was very burdensome on speech because lots of speakers could not comply as a practical matter and would have been forced to stop speaking altogether. On the other hand, the CIPA law interferes with receipt of information in the library setting -- a primary locus for First Amendment activity dedicated to free inquiry. Moreover, the filters are sufficiently imperfect that a large percentage of what they block is not sexually explicit speech.

stillwater, minnesota: If you told your teenaged child you didn't want him or her to read "Queer" or "The Soft Machine" by Burroughs, that's your choice as a parent. Then let's say your kid goes to the library and uses the Internet to get to excerpts from the book. How, besides filters, can you insure that your kid will obey your orders instead of going behind your back?

Paul M. Smith: Frankly, filters wouldn't help with that kind of parental choice. They wouldn't be likely to filter the material at issue. Ultimately, parents have to supervise and train their kids to stick with the family's views about access to content. Technology is no substitute for that.

Harrisburg, PA: If the law is upheld, a library that does not filter its Internet would be ineligible for Federal funds for its internet programs. How important are these funds to most libraries?

Paul M. Smith: They are a relatively small part of overall library budgets. However, in these times of fiscal stress at the state and local level, it is quite predictable that some libraries will feel that need to comply to keep the subsidy.
In any event, our argument is that as a matter of principle, federal funds should not be tied to conduct that improperly restricts the information flow to patrons.

Washington, D.C.: Seems like this issue is also one of states rights and local control over how federal money is spent. As I understand it, libraries would not be able to use federal e-rate funds to purchase filtering products and services. Did you address this issue in your arguments before the court, or did you focus solely on the constitutional issues?

Paul M. Smith: The law goes further than just limiting how federal funds could be spent. It says that if you get the federal funds, you can't, even with your own money, establish an unfiltered internet connection in the same library.
We didn't make a pure federalism argument. But we did argue that under the First Amendment, some institutions of state and local government like libraries and colleges -- which are established to promote free expression and run by professionals with that goal in mind -- ought to be immune from efforts by Congress to impose its particular views about curricula or collection development or internet access.

Annandale, Va.: Doesn't the law merely state that libraries should provide SOME computers with filters, not necessarily all - for e.g., for very young kids? Is keeping kids from inadvertently viewing hardcore porn pop-up ads all that bad of thing?

Paul M. Smith: The law requires filters for all computers for all users.
The only "exception" is that adults can contact a supervisor and request that a site be unblocked or that the filter be disabled so they can have unfiltered access for a "bona fide research or other lawful purpose." But the basic rule is that adults are covered too.
As for protecting kids, it's a trade-off between denying them information and protecting them from some possible inadvertent contact with adult material. We advocate parental choice as a much better way to make that decision.

Pittsburgh, Pa.: A big part of the CIPA law rests on each community applying their own standards for how filters should be applied. But hasn't this been a hard standard to establish with any matter relating to First Amendment rights? So will a library in San Francisco have no filters in place, for example, with a conservative town barring any mention of sex from appearing on a library computer? Help me understand how community standards would work, if filtering does get upheld by the Supreme Court.

Paul M. Smith: It's hard to say where the law will be if CIPA is upheld. You have to see what the Court says. But it seems likely that such a decision would leave room for a fair amount of community-by-community variation in how restrictive to be.

Brooklyn, NY: Did the Court have anything to say about alternative, less restrictive means of enforcing CIPA?

Paul M. Smith: We talked a lot about alternative methods of protecting kids. There was also some discussion of interpreting the "disabling" provision in the statute so loosely that it would be very easy for an adult to get the filter turned off. But that's hard to square with the statutory text and raises a new question -- if it's very easy to turn the filter off, what's the point of requiring that it be on in the first place in every library accepting money?

Frederick Md.: I'm not sure I buy your assertion that libraries can't view lists of blocked sites from the the filtering companies. Don't filtering vendors offer their lists and/or offer you the ability to search their lists? From what I understand it is very easy to tell what is blocked, before you attempt to block it.

Paul M. Smith: The lists can't be accessed. It is possible to test any one site to see if it's blocked. But you can't see the list as a whole.

Washington, D.C.: You mentioned earlier that you argued Congress has no business using its spending power to enforce its views on public libraries. Isn't this decision just a form of "government speech?" Could you explain when Congress' spending authority is an expression of its own viewpoint as opposed to when it is an unconstitutional abridgement of a recipient's free speech rights?

Paul M. Smith: No. Libraries exist to promote private expression and private receipt of expression. A library installing a filter is not speaking; it is interfering with the ability of patrons to receive speech they want to access. Concomitantly, when the federal government funds the internet in the library and mandates filtering as a condition, it is not communicating a governmental message. It is interfering with a forum devoted to private speech.

Olney, Md.: Do you think that a majority of the justices are sympathetic to complaints about filtering software blocking sexual and health education material as lewd, or do they see that as a plus for filtering software?

Paul M. Smith: I don't know that I can speak for the Justices on this. In the trial court, the judges were very sympathetic concerning the importance of "sexual and health education material," even if it was sometimes sexually explicit. We had compelling testimony from young people about their need to be able to access such material. We also had a witness who operates a medical web site providing answers to questions people are afraid to ask. He was blocked because some of the information provided deals with sexuality. The trial court did not seem to think that was appropriate. Indeed quite the contrary.

Arlington, Va.: So, what kind of questions did Scalia ask, and how did you respond?

Paul M. Smith: He was primarily asking about the basics of the public forum doctrine and whether, once a library installs blocking software, it has taken the internet terminal out of the category of a public forum. I suggested that the doctrine does not allow the government to make a forum available to all the content under the sun EXCEPT a disfavored category.

Frederick MD: Opponents of filtering seem to be averse to suggesting ways to improve filters. What would be the problem with offering to help make it better, as opposed to claiming that filtering is flawed and should not be used at all? You make it sound like an all or nothing, when it is not.

Paul M. Smith: Actually our very first witness was from a library that decided to make the filter available to any patron at their option. We have no problem with that. As for making it better, the fact is that the Internet is growing and changing so fast that it's very difficult to come up with a method of accurately categorizing it. Added to that is the problem with multiple web sites having identical I.P addresses. Added to that is the fact that the legal standards for what's protected speech are so difficult to apply. So it's not as if there's any magic answer.

Baltimore: When CIPA first went through Congress, was there any sort of vocal opposition among lawmakers?

Paul M. Smith: I don't think there was much. It was attached to one of those omnibus appropriations bills, passed in late December 2000. So it wasn't really debated on the floor of the Congress I don't think.

Washington, D.C.: Was the ACLU involved in this case?

Paul M. Smith: The ACLU brought one of the two lawsuits -- as counsel for a number of library groups, web speakers, and patrons. The ALA brought a second suit on behalf of itself, other library associations, some patron groups, etc. The two cases ended up being tried together and both are in the Supreme Court now. I was counsel in the ALA case.

David McGuire: One of the core notions behind the ALA's argument seems to be that librarians are having their rights trampled by federal edicts, but haven’t some librarians spoken out in favor of filtering technology, complaining that the ready availability of pornography on library terminals puts them at risk of harassment and worse?

Paul M. Smith: There have been some librarians who dislike having to deal with sexually explicit imagery appearing on terminal screens and enforcing appropriate rules of conduct. In a small number of cases, librarians have complained about the creation of a "hostile work environment" -- a form of sexual harassment.

David McGuire: Unfortunately, we're out of time. I'd like to thank Paul Smith for taking time out of what has been a very busy day to join us. Thanks also to our viewers for submitting so many thoughtful questions

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