Discriminatory Filtering: CIPA's Effect on Our Nation's Youth and Why the Supreme Court Erred in Upholding the Constitutionality of the Children's Internet Protection Act

I. INTRODUCTION II. LEGAL HISTORY OF THE CHILDREN'S INTERNET PROTECTION ACT A. What is CIPA? 1. What is a Filter and How Does It Work? a. Disabling Filters 2. Obscenity 3. Government Interest in the Well-Being of Youth 4. Levels of Scrutiny B. The District Court's Decision in American Library Association v. United States C. The Supreme Court's Decision in United States v. American Library Association III. THE REAL CONSEQUENCES OF CIPA A. Implementation of CIPA IV. LESS RESTRICTIVE ALTERNATIVES A. What is a Less Restrictive Alternative? B. United States v. Playboy Entertainment Group, Inc C. Filtering Improvements V. CIPA AND ITS EFFECTS ON OUR YOUTH VI. CONCLUSION I. INTRODUCTION Most attempts at suppression rest on a denial of the fundamental premise of democracy: that the ordinary citizen, by exercising critical judgment, will accept the good and reject the bad. The censors, public and private, assume that they should determine what is good and what is bad for their fellow citizens. In a country where we are slowly being stripped of our constitutional freedoms through complex government action such as the USA PATRIOT ACT (2) and Homeland Security regulations, (3) it is essential that we retain the basic First Amendment freedoms of disseminating and accessing information. (4) Recent legislation affecting two large sources of information, the Internet (5) and public libraries, threatens these essential freedoms. Congress's objective is to filter obscene and indecent material in response to a perceived threat by members of the public, specifically to minors, who are using computer terminals at public libraries and schools to access pornographic sites on the Internet. To meet this objective, Congress introduced the Children's Internet Protection Act ("CIPA"). (6) The provisions of CIPA have provoked tension between two competing interests: protecting minors from "cyberpornography" and safeguarding First Amendment rights. The effect of the Act is an overly broad bar limiting access to two of this country's invaluable resources. (7) The public "library is a mighty resource in the free marketplace of ideas," (8) and a "forum for silent speech." (9) Libraries across the country have endorsed or adopted the Library Bill of Rights, (10) the Freedom to Read Statement, (11) and other policies protecting First Amendment rights. (12) Because of the stringent new policies required under CIPA, libraries are now unable to retain their historically liberal dissemination of resources. In justifying these policies, the Supreme Court erroneously applied a rational basis standard of review, which neglected to recognize the Act's inability to safeguard First Amendment freedoms. Internet access is available free of charge at virtually each of the 16,000 public libraries across the country. (13) The Internet is growing at a rate close to 50 percent annually and connects millions of computers in more than 250 countries. (14) Over 14 million people in the United States use their public libraries for Internet access. (15) In fact, "[a]s numerous government studies have demonstrated, the 'digital divide' persists, and many groups, including minorities, low-income persons, the less-educated, and the unemployed, are far less likely to have home Internet access." (16) While CIPA considerably limits Internet access for our nation's youth, (17) the problem is compounded for the socio-economically disadvantaged. For the substantial portion of America's population that cannot afford a computer or home Internet access, public schools and libraries provide the only means of accessing such technology. (18) Therefore, while wealthier Americans are able to access the full range of resources that the Internet offers on their home computers, the economically disadvantaged are limited to the restricted Internet access available in their local public libraries. …