Quick Summary of CIPA Decision
United States v. American Library Association, No. 02-361 (June 23, 2003).
The Supreme Court issued its opinion in the CIPA case today. The Court reversed the lower court's ruling and upheld the federal law in a very narrow plurality opinion.
Five justices plainly agreed with the lower court that filtering software blocks access to a significant amount of constitutionally protected speech. Justices Stevens, Souter and Ginsburg dissented from the judgment on the ground that the blocking software blocks access to an enormous amount of constitutionally protected speech. Justices Breyer and Kennedy, each of whom filed concurring opinions, joined only in the judgment of the plurality and not the opinion. They agreed with Justices Stevens, Souter and Ginsburg that the filters block access to constitutionally protected speech.
Nonetheless, Justices Breyer and Kennedy joined in the judgment that the law should be upheld on the ground that the disabling provision of the statute can be applied without significant delay to adult library patrons and without the need for the patron to provide a reason for the request to disable.
For example, Justice Breyer made clear in his concurring opinion that he only joined the plurality's judgment because "[a]s the plurality points out, the Act allows libraries to permit any adult patron access to an 'overblocked' Web site; the adult patron need only ask a librarian to unblock the specific Web site or, alternatively, ask the librarian, "Please disable the entire filter." Concurring Opinion of Justice Breyer, at 5.
Additionally, Justice Kennedy cautioned that "[i]f some libraries do not have the capacity to unblock specific Web sites or to disable the filter or if it is shown that an adult user's election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge." Concurring Opinion of Justice Kennedy at 1. There is no doubt, therefore, that libraries that refuse to disable filters at the request of an adult patron or that impose substantial burdens on a patron's ability to have the filter disabled risk an individual litigation in which the library will be a defendant.