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

The Istook/McCain proposed amendment to H.R. 4577 is a complex, unwieldy, and unconstitutional federal scheme requiring schools and libraries to block obscenity, child pornography and material harmful to minors.

The First Amendment clearly applies to the Internet. While obscenity is not protected under the First Amendment, it is not subject to summary removal by Government bureaucrats who think they "know it when they see it." To deem material obscene, the law requires the government prove it so in an adversarial trial in which a jury applies the relevant "community standards."

Public Libraries

Istook/McCain is by design based on blocking certain content. Because such legislation is content-based, it is presumptively unconstitutional, and must be judged by the "strict scrutiny" standard. This standard requires that such a statute be necessary to serve a compelling governmental interest, and be narrowly drawn to achieve that end.

The only court to consider the issue of mandatory blocking found that mandatory blocking was unnecessary to further any compelling government interest and was not narrowly tailored to achieve that interest. See Mainstream Loudoun v. Loudoun County Library, 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). Blocking is both overbroad and overinclusive in that it blocks many sites which should not be blocked, and limits the access of all patrons, both adult and juvenile, to material deemed fit only for juveniles.

Istook/McCain also constitutes a prior restraint. Reliance on commercial blocking software entrusts all blocking decisions to a private vendor whose standards and practices cannot be monitored by the blocking library. All substantive blocking decisions by commercial suppliers therefore lie outside the control of the government. Consequently, each blocking decision lacks the requisite procedural safeguards required by the First Amendment.

Istook/McCain violates the rights of older minors by treating them the same as younger minors. The Supreme Court has recognized that the governmentıs interest in protecting minors is not the same throughout the range of minority.

Because of overbreadth, Istook/McCain violates younger minorsı rights. The software is not sophisticated enough to block only objectionable sites. It therefore also blocks constitutionally protected material that is neither obscene nor "harmful" to any minors.

The Istook/McCain amendment violates the rights of parents to determine what is best for their children. There is no provision for a "parental override" should a parent disagree with the blocking decision for their child.

Finally, Istook/McCain violates adultsı rights to unblocked access. If the computer can be used by a minor, it must have blocking installed. An adult can have unblocked access only upon request for "bona fide research or other lawful purpose." The government must now act as the ultimate censor: unless the adult explains why he or she wants unblocked access and the government is satisfied with that explanation, access remains blocked. This policy is like requiring an adult to get government permission before he or she can check out a book from the library.

Schools and School Libraries

Istook/McCain fails to prepare our children to act responsibly as Internet citizens. Responsibility implies choice, but blocking removes all choice. Ethical Internet Use Policies have proven effective in teaching children how best to use the Internet responsibly. Rather than blocking access, the children are taught how to evaluate sites and which sites are appropriate. They are given consequences if they violate the policy. Despite the effectiveness of these policies, Istook/McCain disallows the use of these policies in favor of the blunt instrument of blocking software.

Istook/McCain may also violate the First Amendment as it relates to public schools and libraries. School boards may not remove books from libraries in a "narrowly partisan or political manner." Blocking programs often operate to block access to partisan or political viewpoints with which the software company disagrees. 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.

For all of these reasons, the ACLU urges Congress to reject this amendment.

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

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