To: Interested Persons
From: Marvin J. Johnson, Legislative Counsel, ACLU Washington National Office
Re: Analysis of Istook/McCain Internet Blocking Amendment to H.R. 4577
Date: October 2, 2000

The ACLU strongly opposes any mandatory Internet blocking/filtering requirements for schools and libraries receiving federal technology funding. The Istook/McCain Amendment proposes a complex, unwieldy, and unconstitutional federal scheme on schools and libraries to block obscenity, child pornography and material harmful to minors.

The First Amendment Applies to the Internet: In Reno v. ACLU, 521 U.S. 844 (1997)(Reno I), a unanimous Supreme Court held that the First Amendment applies to the Internet. The Court found the Internet should be afforded the highest protection under the First Amendment, equivalent to that provided books, newspapers, and magazines. Therefore, any attempted regulation of Internet speech is constitutionally suspect.

The Istook/McCain Amendment impermissibly subjects alleged obscenity to summary decision by Government bureaucrats. The proposed amendment requiring blocking and filtering seems to assume obscenity is something a government bureaucrat can know when they see it, and can summarily block access to such material. This assumption is constitutionally invalid.

Government agents cannot simply determine, on a whim, that expressive materials fall outside the protections of the First Amendment. Rather, in order to place certain speech into an unprotected category, such as obscenity, the government must provide a series of procedural safeguards. First, there must be a statute specifically defining the sexual conduct that may not be depicted or displayed, a requirement that helps guarantee that speakers (or in this case, patron Internet users) have fair notice of the prohibited material. Second, the material cannot be banned without a full adversarial trial. Finally, a jury must be available to apply the relevant "community standards" for obscenity to the challenged material. [ 1 ]

The fact that a governmental entity may use third-party software that decides what is "obscene" material does not save the policy. "[A] defendant cannot avoid its constitutional obligation by contracting out its decisionmaking to a private entity." [ 2 ]

As one can easily see, the determination of obscenity must be made on a local, community basis, with adequate procedural safeguards. Only after a judicial determination may that web site or page be constitutionally blocked. This would normally necessitate contacting the software company to have that information blocked. The consequences for the library or school budget are enormous. Instead of libraries using their budgets for providing information, the budgets will be devoted to litigation.

Additionally, the software companies are generally unable to comply with the legal requirements. Most companies who market software do so for a nationwide market. After all, the more software packages they sell, the greater the profit. By necessity, the packages are not tailored for specific localities. By requiring libraries and schools to implement blocking, the amendment attempts to impose a national standard on an issue the law has determined to be a uniquely local decision.

PUBLIC LIBRARIES

The amendment requires public libraries to install and use blocking software for any computers accessible to minors. Title I defines minors as less than 18 years old. Title II defines minors as less than 17 years old.[ 3 ] Titles I and II allow administrators to unblock adult access for "bona fide research or other lawful purpose." Title II, however, also requires mandatory blocking of obscenity and child pornography for adults.

The Istook/McCain Amendment interferes with the First Amendment right to receive information in a public library. It is well-settled that the First Amendment protects the fundamental right to receive information.[ 4 ] In Reno v. ACLU, 521 U.S. 844 (1997) ("Reno I"), the Supreme Court confirmed that the right to receive information applies without qualification to expression on the Internet, which is "as diverse as human thought" and is entitled to maximum constitutional protection.[ 5 ]

The Istook/McCain Amendment Imposes Unconstitutional Mandatory Blocking in Public Libraries.

The only case to consider mandatory blocking in public libraries is Mainstream Loudoun v. Loudoun County Library.[ 6 ] Although Mainstream Loudoun reflects only one courtıs view of the issues presented by library-wide mandatory blocking policies,[ 7 ] it offers a sound reading of the relevant First Amendment case law, including the Supreme Courtıs Reno I decision. Under these precedents, it is highly likely that the use of blocking software will be found unconstitutional, particularly if it prevents adults from accessing non-obscene, protected material.

In Mainstream Loudoun, a non-profit group and numerous private citizens sued the county library board of trustees, alleging that the Internet blocking software used in the Loudoun public libraries violated the patronsı First Amendment rights. The challenged policy required that "site-blocking software . . . be installed on all [library computers]" so as to block "child pornography and obscene material" and "material deemed Harmful to Juveniles under applicable Virginia statutes and legal precedents."[ 8 ] The library implemented the policy by installing the commercial filtering software X-Stop on all public library terminals in the county.

The Istook/McCain Amendment does not serve a compelling government interest, nor it is narrowly tailored to achieve the asserted interest. "Content-based regulations are presumptively invalid."[ 9 ] In order to be found constitutional, content-based restrictions must meet the strict scrutiny standard.[ 10 ] The strict scrutiny test requires that the statute or regulation at issue is necessary to serve a compelling governmental interest, and is narrowly drawn to achieve that end.[ 11 ] In Mainstream Loudoun, the court concluded the blocking policy was a content-based restriction on speech, and therefore must meet strict scrutiny.

• The Istook/McCain Amendment does not further any compelling government interest. The Mainstream Loudoun court assumed that the libraryıs asserted interests in "minimizing access to illegal pornography" and the "avoidance of creation of a sexually hostile work environment" were compelling, and moved on to the remaining prongs of the strict scrutiny inquiry. [ 12 ] The court rejected the defendantsı claim that the blocking policy was necessary to further the asserted interests, noting the absence of any substantial evidence in the record of actual complaints or incidents relating to library Internet use. [ 13 ]

• The Istook/McCain Amendment is not narrowly tailored to achieve any compelling government interest. On the question of narrow tailoring, the policy in Mainstream Loudoun failed in two key respects. First, the court held that the library had not even considered less restrictive means. Here, as in Mainstream Loudoun, Congress has failed to adequately consider alternatives to blocking as a means to achieve the asserted interest.

  Second, broad-based blocking policies like that in Mainstream Loudoun and the Istook/McCain Amendment violate the First Amendment because they are overbroad and overinclusive. As the Mainstream Loudoun court reasoned, even if blocking software could somehow be tailored to exclude only materials that fall within the legal definition of "harmful to minors,"[ 14 ] it unconstitutionally "limit[s] the access of all patrons, adult and juvenile, to material deemed fit for juveniles." [ 15 ]

It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not "reduc[e] the adult population . . .to . . . only what is fit for children." [ 16 ]

Istook/McCain goes far beyond limiting the rights of minors. It also limits the right of adults to view constitutionally protected information. Most libraries do not have the funds to provide an "adults only" section. Therefore, adults and children may use the computer terminals. If all of a libraryıs Internet terminals contain software that blocks access to materials that are "harmful to minors" but fully protected for adults, adult patronsı right to receive information will be impermissibly infringed.

Istook/McCain constitutes a prior restraint. The court in Mainstream Loudoun also relied on the First Amendmentıs prohibition on "prior restraints" in striking down the countyıs blocking policy. Under that doctrine, the government may not restrain protected speech without the benefit of clear objective standards or adequate procedural safeguards, including provisions for administrative review, time limitations on the review process, and provisions for prompt judicial review.[ 17 ] Mandatory blocking policies that rely on commercial blocking software constitute prior restraints because, as in Mainstream Loudoun, they "entrust all . . . blocking decisions . . . to a private vendor" whose standards and practices cannot be monitored by the blocking library.[ 18 ] All substantive blocking decisions by commercial suppliers necessarily lie outside the control of the government; consequently, each blocking decision inherently lacks the requisite procedural safeguards. In fact, in Mainstream Loudoun, the blocking software provider refused to provide the defendants with the criteria it used to block sites, let alone the names of the actual sites blocked.[ 19 ] Mandatory blocking policies like Loudounıs and Istook/McCain thus confer unbridled discretion on commercial software providers, allowing them to restrict access indiscriminately and without any administrative or judicial review.

Istook/McCain violates the rights of older minors. With certain limitations, minors enjoy the First Amendment right to receive information.[ 20 ] Blocking software that broadly blocks access to content would almost certainly prevent minors from accessing material that has serious value and would be constitutionally protected for older minors, even if that material might be considered harmful and unprotected for younger minors. As the Supreme Court noted in Reno I regarding the Communications Decency Act (CDA), "[I]t is at least clear that the strength of the Governmentıs interest in protecting minors is not equally strong throughout the coverage of this broad statute."[ 21 ] There are almost certainly less restrictive means of keeping harmful material from young minors. Applying a uniform standard of "harmful to minors" which applies alike to five year-olds and seventeen year-olds is unlikely to withstand constitutional challenge.

Because of overbreadth, Istook/McCain violates the rights of younger minors. Blocking software would prevent younger minors from accessing constitutionally protected material that is neither obscene nor "harmful" to any minors.[ 22 ] Commercially available software often restricts very broad categories of material. Thus, blocking software often blocks sites with the name "sex" or "breast." As a result, sites with information on "breast cancer" and "safe sex" might be blocked--even though such sites plainly would not be "obscene," or "indecent," or "patently offensive" (under most definitions) and plainly would contain constitutionally protected material for everyone. [ 23 ]

Istook/McCain violates the rights of parents to determine what is best for their children. Parents have the right and responsibility to determine what is in the best interests of their children.[ 24 ] For many low-income families, public libraries may be the only means of accessing the Internet. This amendment removes any ability of parents to override the blocking decisions. The amendment requires any computer used by a minor in a public library to have and use blocking software. Thus, parents have no ability to unblock access to constitutionally protected material for their minor children, particularly where the public library is the sole means of Internet access for that child.

Istook/McCain violates adultsı rights to unblocked access. The amendment requires that blocking be on every computer during use by a minor, while allowing the blocking to be turned off upon adult request for "bona fide research or other lawful purpose." While this distinguishes the amendment from the policy in Mainstream Loudoun, it does not save the amendment from unconstitutionality.

Istook/McCain now enshrines the government as the ultimate censor. In order to receive unblocked access, a patron must convince the librarian that his request is for "bona fide research or other lawful purpose." The patron will have to discuss with the librarian what he intends to research, which will deter some patrons from even asking for unblocked access. For example, a patron with AIDS is unlikely to request unblocked access to sites that could provide him with more information about the disease.

Courts have suggested in some instances that it is unconstitutional to require recipients to affirmatively request protected, albeit stigmatized, speech.[ 25 ] Proponents of blocking argue no stigma attaches if the adult must simply ask for unfiltered access rather than for access to a particular site. Librarians, however, have reported that patrons in their libraries plainly would be stigmatized by having to request unfiltered access, especially if they have to request access to particular sites. Accordingly, in Mainstream Loudoun, the district court rejected the Library Boardıs argument that the ability of patrons to submit a written request to have a site unblocked eliminates any First Amendment problems. Noting that the Supreme Court has invalidated policies that have "the severe chilling effect of forcing citizens to publicly petition the Government for access to speech it clearly disfavored," the court held that Loudounıs unblocking policy did just that. [ 26 ]

SCHOOLS AND SCHOOL LIBRARIES

Istook/McCain fails to prepare children to act as responsible Internet citizens. Local school boards traditionally have broad discretion in the management of school affairs,[ 27 ] although that discretion is not unfettered. The United States Supreme Court has "acknowledged that public schools are vitally important Œin the preparation of individuals for participations as citizens,ı and as vehicles for Œinculcating fundamental values necessary to the maintenance of a democratic political system.ı"[ 28 ]

Blocking teaches nothing. It merely removes certain sites from access, without explaining why those sites are inaccessible. Responsibility implies choice, something entirely lacking when blocking is in place.

Because most of these students will eventually have unfiltered Internet access, perhaps in their own homes, it is far better to teach them how to use the Internet in a responsible manner. In a letter to Senator McCain opposing S. 97, the Catholic Conference described one of their most effective tools which both Senator McCainıs bill and this amendment disallow:[ 29 ] Ethical Internet Use Policies. "These policies outline the ethical responsibilities of each party involved in Internet use. Under a typical Ethical Internet Use Policy, students are granted ŒInternet Licensesı after signing contracts or taking courses in ethical and responsible behavior. If a student violates the terms of the license by viewing inappropriate material, that student is denied the privileges of Internet access." While these tools are effective, this amendment disallows their use as an alternative to blocking.

Istook/McCain in school libraries runs afoul of the First Amendment. As noted above, local school boards do not have unfettered discretion to run school affairs. The "comprehensive authority. . .of school officials" must be exercised "consistent with fundamental constitutional safeguards."[ 30 ]

In Board of Education v. Pico, the Court examined the removal of books from a school library because the books "offended [the Boardıs] social, political and moral tastes."[ 31 ] A plurality of the Court believed "the First Amendment rights of students may be directly and sharply implicated by the removal of books from the shelves of a school library."[ 32 ] While the Court held that the school board had significant discretion to determine the content of school libraries, that discretion could not be exercised in a "narrowly partisan or political manner." [ 33 ]

In Mainstream Loudoun II, the court examined the libraryıs blocking program in light of Pico, and determined that blocking was similar to the removal of books. Essentially, acquiring the Internet is akin to acquiring a set of encyclopedias. Blocking is similar then to removing "objectionable" portions of the encyclopedia. [ 34 ]

As noted above, blocking programs often operate to block access to partisan or political viewpoints with which the software company disagrees. For example, blocking software has blocked sites dealing with gay and lesbian issues, as well as anti-gay sites. Recently, America Onlineıs child filters blocked Democratic sites while allowing access to Republican sites.[ 35 ]

Because blocking is similar to removing library books from the shelves, and because these decisions are often made in a "narrowly partisan or political manner," blocking sites in school libraries may well run afoul of the First Amendment.[ 36 ] As the plurality decision in Pico noted:

Our Constitution does not permit the suppression of ideas. . .If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitionersı decision, then petitioners have exercised their discretion in violation of the Constitution.

CONCLUSION

The Internet in some form is here to stay. As children learn to function as responsible citizens in the twenty-first century, they will be faced with much information. They will need to make ethical decisions about the quality of the information as well what information they should access.

Finally, we do our children harm by steadily chipping away at the First Amendment. As the court in ACLU v. Reno II noted in granting a preliminary injunction against the Child Online Protection Act: "Indeed, perhaps we do the minors in this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection."

We urge all members of Congress to reject this well-intentioned but misguided amendment.

For further information contact:
Marvin J. Johnson, 202-675-2334

1. See, e.g., Miller v. California, 413 U.S. 15, 24-25, 27, 28, 31-35 (1973). To be classified as obscene, the trier of fact must determine: (1) Whether "the average person, applying contemporary community standards" would find that the work taken as a whole, appeals to the prurient interest; (2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined in the applicable state law; and (3) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. Relying on Miller, lower courts have invalidated speech regulations that permit administative officials to determine whether or not the regulated expression is obscene. See, e.g., Bella Lewitzky Dance Found. v. Frohnmayer, 754 F.Supp. 774, 882 (C.D. Cal. 1991) (holding unconstitutional, in context of federal arts grants, "obscenity" certification where obscenity determination left in hands of administrative agency).

2. Mainstream Loudoun v. Loudoun County Library, 24 F.Supp. 2d 552 (E.D. Va. 1998) (Mainstream Loudoun II).

3. As a practical matter, if a library receives funds from two different funding schemes, it may be faced with inconsistent requirements.

4. See, e.g., Reno v. ACLU, 521 U.S. 844, 874 (1997) ("Reno I"); Board of Education v. Pico, 457 U.S. 853, 867-68 (1982); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 511 (1969); Campbell v. St. Tammany Parish Sch. Bd., 64 F.3d 184, 190 (5th Cir. 1995).

5. Reno I, 521 U.S. at 870.

6. 2 F.Supp. 2d 783 (E.D. Va. 1998) (Loudoun I); Mainstream Loudoun v. Loudoun County Library, 24 F.Supp. 2d 552 (E.D. Va. 1998) (Loudoun II)

7 After the district court ruled in Mainstream Loudoun, the parties reached a settlement agreement foreclosing the possibility of appeal. To date, no federal Court of Appeals has ruled on the issue of Internet filtering in libraries.

8. Mainstream Loudoun I, 2 F. Supp. 2d at 787.

9. R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). See also, Regan v. Time, Inc., 468 U.S. 641 (1984).

10. Turner Broadcasting System v. Federal Communication Commission, 114 S.Ct. 2445 (1994).

11. Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987).

12. Id. at 565

13. Id. at 565-66. Since the Mainstream Loudoun case was decided, proponents of mandatory blocking requirements have been obtaining further anecdotal evidence of complaints and incidents. Even if some complaints are found to be valid, this development is unlikely to save overly restrictive filtering policies. As the Mainstream Loudoun court explained, "[e]ven if defendant could demonstrate that the Policy was reasonably necessary to further compelling state interests, it would still have to show that the Policy is narrowly tailored to achieve those interests." Mainstream Loudoun II, 24 F. Supp. 2d at 566.

14 This is impossible, both as a legal matter--in light of, among other things, the inability to provide the requisite procedural safeguards--and as a factual, practical matter--given the diverse and rapidly changing nature of the Internet.

15. Mainstream Loudoun II, 24 F. Supp. 2d at 567.

16. Reno I, 521 U.S. at 875 (citations omitted). Following Reno I, Congress enacted the Child Online Protection Act ("COPA") in another attempt to regulate Internet materials that are purportedly "harmful to minors." COPA differs from the Communications Decency Act ("CDA") invalidated in Reno in a number of respects: (1) COPA applies to material that is "harmful to minors," while the CDA applied to "indecent" speech; (2) COPA applies to persons 17 or under while CDA applied to persons 18 or under; and (3) COPA applies only to persons engaged in the "commercial" distribution of material on the World Wide Web. Nonetheless, a federal district court preliminarily has determined that the new statute suffers from many of the same constitutional infirmities as its predecessor. See ACLU v. Reno ("Reno II"), 31 F. Supp. 2d 473 (E.D. Pa. 1999). Once again, after assuming that the interest in protecting children from "harmful" materials is a compelling one, the court concluded that COPA was not the least restrictive means available to achieve the goal of restricting minorsı access to those materials. Id. at 496-97. As in Reno I, the court explained that the use of "filtering and blocking technology" might serve as a viable alternative to the outright ban prescribed in COPA. Id. The preliminary injunction was upheld by the Third Circuit in ACLU v. Reno (Reno III), 194 F.3d 1149 (3rd Cir. 2000).

The lower courtıs reference to filtering as a less restrictive alternative, however, was by no means a broad endorsement of mandatory filtering. In fact, the court was careful to point out that "blocking and filtering software is not perfect, in that it is possible that some appropriate sites for minors will be blocked while inappropriate sites may slip through the cracks." Id. at 497. And while the court did not specifically address the legality of mandatory filtering, it made clear that "[t]he responsibility for making [blocking or filtering decisions] is where our society has traditionally placed it--on the shoulders of the parent." Id. at 496 (quoting Fabulous Associates, Inc. v. Pennsylvania Pub. Util. Commın, 896 F.2d 780, 785 (3d Cir. 1990)).

17. See, e.g., FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225-29 (1990); Freedman v. Maryland, 380 U.S. 51, 58 (1965).

18. Mainstream Loudoun II, 24 F. Supp. 2d at 569.

19. Id.

20. Board of Education v. Pico, 457 U.S. 853 (1982). See also Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975), and Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983).

21 The Court was referring to the CDAıs blanket prohibition on all "indecent" and "patently offensive" messages communicated to a 17 year-old, no matter how much value the message may contain and regardless of parental approval.

22. See, e.g., Reno II, 31 F. Supp. 2d at 497 (noting that "blocking and filtering software is not perfect, in that it is possible that some appropriate sites for minors will be blocked while inappropriate sites may slip through the cracks").

23 A recent example of this overbreadth was brought to the attention of the COPA Commission, charged to investigate ways to protect minors from harmful material on the Internet. Blocking software blocked access to all biographies of COPA Commissioners who had graduated magna cum laude.

24. Troxel v. Granville, 120 S.Ct. 2054 (2000).

25. See, e.g., Denver Area Educ. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 754 (1996); Lamont v. Postmaster General, 381 U.S. 301, 307 (1965).

26. See Mainstream Loudoun I, 2 F. Supp. 2d at 797 (quoting Lamont, 381 U.S. at 307).

27. Board of Education v. Pico, 457 U.S. 853 (1982).

28. Id.

29. United States Catholic Conference letter, dated March 22, 1999 to Senator McCain. While this amendment requires acceptable use policies be considered, those policies are implemented only as an adjunct to blocking.

30. Board of Education v. Pico, supra. 31. Id.

32. Id.

32. Id.

34. Mainstream Loudoun II

35. We understand that has since been remedied.

36. Even though the decision may have been made by the software company instead of the school board, that does not save the policy. "[A] defendant cannot avoid its constitutional obligation by contracting out its decisionmaking to a private entity." Mainstream Loudoun II.

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