Independent Perspective News

By JOHN SCHWARTZ

This morning in a Philadelphia courtroom, a coalition of libraries, Web sites and library patrons will begin nine days of hearings in which they will ask three federal judges to help decide a seemingly simple question: What is a library for?

They argue that a law passed by Congress in December 2000 requiring schools and libraries to use Internet filtering software changes the nature of libraries from being places that provide information to places that unconstitutionally restrict it.

The law that the librarians and their allies are trying to overturn, the Children's Internet Protection Act, denies federal financing and technology discounts via the federal e-Rate program to schools and public libraries if they do not install a "technology protection measure" like filters to block access to Web sites deemed harmful to minors.

The coalition of plaintiffs includes the American Library Association, the American Civil Liberties Union and Jeffrey L. Pollock, a Republican Congressional candidate who favored mandatory filtering until he discovered that his own campaign's Web site was blocked by one of the most popular filtering programs.

They call the law a case of good intentions leading to a bad result, hamstringing the computers that are, for many people, the sole link to the Internet. They argue that the law pre-empts community control over libraries and the judgment of local librarians. They also point to the failings of the software, which can let objectionable material through and block constitutionally protected sites. The law constitutes "classic prior restraint on speech," said Ann Beeson, staff lawyer for the American Civil Liberties Union.

Those in favor of the filtering law say its opponents mischaracterize the law and the software. Senator John McCain, Republican of Arizona, who co-sponsored the bill, has said it "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."

Courts have, historically, given the government high hurdles when restricting speech, requiring strong proof that the restrictions are necessary and evidence that they have been designed with a finesse that makes them the least restrictive means of accomplishing the goal.

The government has moved toward a more limited approach, the Children's Internet Protection Act being only the latest effort by Congress to restrict the Internet to protect children.

The first major law, the Communications Decency Act of 1996, was struck down by the Supreme Court as unconstitutionally restrictive on First Amendment speech rights, in part, the court said, because it would reduce material that adults had a constitutional right to see "to only what is fit for children."

A more narrow follow-up law, the Children's Online Protection Act, was challenged before the Supreme Court last November; the decision is pending.

The new case will be heard in United States District Court for the Third Circuit, by a panel of three judges; under procedures set out in the filtering law, any appeals will go directly to the Supreme Court.

Donna Rice Hughes, an opponent of pornography who has supported mandatory filtering, said the law contained "a tremendous amount of flexibility." She noted that the precise technology to be used by libraries was not prescribed, and that a library patron with a "bona fide research or other lawful purpose" can get the library to temporarily turn off the filters.

Ms. Rice Hughes said the message to libraries was simple: "You've got to do your part — you've got to put these filters on or you've got to get your funding elsewhere."

Librarians and their allies say the simple message is complex in practice. Families might do well with filters as part of the close supervision of a child's Internet wanderings at home, opponents of the bill say, but the same technology is ill-suited for use in libraries. Turning off the filters, they say, is cumbersome, and having to prove a "bona fide" research purpose violates users' privacy.

"It is going to affect everyone's First Amendment right to get access to information that is perfectly legal," said Judith F. Krug, director of the American Library Association's Office for Intellectual Freedom.

Computers, the plaintiffs argue, cannot make the fine distinctions among online sites that are called for in the legislation, which defines material that is "harmful to minors" as images that appeal to "prurient interest in nudity, sex or excrement," depictions of sexual acts presented in a "patently offensive way" and material that, "taken as a whole, lacks serious literary, artistic, political or scientific value as to minors."

Some librarians say they would not understand how to apply such a broad definition.

Nancy Willard, director of the Center for Advanced Technology in Education at the University of Oregon, said there was a deeper issue that had been lost in the debate over filters: blocking access to what children see does not prepare them for the unrestricted world that awaits them when they turn 18. Ms. Willard recommends training children in responsible Internet use, and has developed a school program for doing so.

"We need to help kids develop effective filtering and software systems that will reside in the hardware that sits upon their shoulders,"
she said.