CPPA, COPA, CIPA: Which Is Which?
“First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”—Supreme Court Justice Anthony M. Kennedy, Ashcroft V. Free Speech Coalition (00-795) 198 F.3d 1083, affirmed.
“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.”— The Freedom to Read Statement
The Supreme Court has handed down decisions on the constitutionality of two laws, one restricting child pornography (the Child Pornography Prevention Act, or CPPA) and one on Internet content (the Child Online Protection Act, or COPA). At the same time, the American Library Association, the Freedom to Read Foundation, and other plaintiffs were in court challenging the constitutionality of the Children’s Internet Protection Act (CIPA). Because there has been some confusion about these laws and the legal actions challenging them, OIF has prepared a brief summary distinguishing them:
Child Pornography Prevention Act
The Child Pornography Prevention Act (CPPA) expanded the definition of child pornography. CPPA criminalized the creation of what is called “virtual child pornography,” or “morphed” child pornography. Under CPPA images that appear to depict children but do not, including images of youthful-looking adults or images that are computer-generated would be illegal.
The Free Speech Coalition filed a lawsuit to overturn these provisions of the CPPA on the grounds that the restrictions violated the First Amendment. The U.S. Supreme Court agreed with the Free Speech Coalition, and in a decision handed down on April 16, 2002, found these parts of the CPPA unconstitutional on two grounds:
First, the law, as written, is overbroad, prohibiting otherwise legal, non-obscene images depicting teenagers engaging in sexual activity, such as filmed depictions of Romeo and Juliet or Lolita.
Second, the prohibition on child pornography is based on the link between the creation of the image and the sexual abuse of the children shown in the image. If an image is created by use of computer technology or by photographing adults pretending to be children, there is no basis in the law to ban the image.
The Child Pornography Prevention Act affected only those who create films and images. It did not affect libraries. The Freedom to Read Foundation, however, joined an amicus curae (friend of the court) brief in support of certain First Amendment arguments.
Child Online Protection Act
Congress passed The Child Online Protection Act (COPA) to replace the Communications Decency Act. (The Communications Decency Act was held unconstitutional in a 9–0 decision by the Supreme Court in 1997.) COPA prohibits the transmission of any material over the Internet deemed “harmful to minors,” if the communication was made for a commercial purpose.
The ACLU challenged COPA on behalf of a group of plaintiffs who provided commercial content for the Internet or who received such content. The trial court found the law unconstitutional on First Amendment grounds. The Third Circuit Court of Appeals agreed that the law was unconstitutional, but said it was unconstitutional because of its reliance on “contemporary community standards.” This made the law overbroad.
The U.S. Supreme Court reversed the Third Circuit’s decision on May 13, 2002, on very narrow grounds. The Supreme Court did not decide on the constitutionality of COPA, finding only that COPA’s reliance on “community standards” does not by itself make the law unconstitutional. As a result, the Supreme Court returned the matter to the Third Circuit Court of Appeals for a fuller consideration of the First Amendment issues raised by COPA’s restrictions on Internet speech. All nine justices agreed that the injunction preventing any enforcement of COPA must remain in place while the lower courts further examine COPA’s constitutionality.
Because COPA addresses only material sent over the Internet for commercial purposes, it does not directly affect libraries. FTRF joined an amicus curae brief in support of the parties’ First Amendment argument.
Children’s Internet Protection Act
The Children’s Internet Protection Act (CIPA) requires libraries and schools to install filters on their Internet computers to retain federal funding and discounts for computers and computer access. Because this law directly affected libraries and their ability to make legal information freely available to their patrons, the American Library Association and the Freedom to Read Foundation filed a lawsuit to overturn CIPA, but the Supreme Court on June 23, 2003, in a 6–3 decision, upheld the constitutionality of the Children’s Internet Protection Act (CIPA). Although it does not make the lose any easier to bear, the decision in United States v. American Library Association was a plurality decision. [According to “The Modern Problem of Supreme Court Plurality Decision: Interpretation in Historical Perspective” by Adam S. Hochschild, “problems arise when there is less than a clear majority speaking for the Court—when the leading opinion of the Court is a plurality opinion. A Supreme Court plurality decision holds ambiguous precedential value. . . . [A] plurality opinion, which represents the rationale of less than half of the Justices, is . . . problematic. A majority opinion may command more authority than a plurality decision, but precisely what authority does a plurality decision command? In other words, how should courts apply a plurality decision to subsequent controversies involving similar issues?]
Justices Kennedy and Breyer, who joined in Reinquist’s conclusion, but not the reasoning behind it, may have given ALA “loopholes” to move forward.
The decision indicates that CIPA is constitutional for children, but not for adults. Kennedy was very specific in his opinion, saying he would not have voted to uphold CIPA if he had not been assured that CIPA does not apply for adults.
During the U.S. Supreme Court argument, Solicitor General Theodore Olsen opened his remarks by saying that anytime an adult patron wants unfiltered access to a computer, he or she may ask a librarian to disable the filter, and the librarian will do so. His statement was contrary to what CIPA states, which is that a librarian “may” disable a filter “for bona fide research or other lawful purpose.”
Kennedy also implied it is now incumbent on the filtering companies to develop a disabler that is both easily and quickly applied; he further implied that if the filtering companies do not do this, ALA may have a cause of action against the filtering companies. Kennedy also said that while CIPA may be constitutional on its face, it may not be constitutional in an “as applied” library setting.
Brief History of CIPA
The three-judge panel sitting in the Eastern District of Pennsylvania issued a decision on May 31, 2002, holding that the CIPA statute is facially unconstitutional and violates the First Amendment. They held that “we are constrained to conclude that the library plaintiffs must prevail in their contention that CIPA requires them to violate the First Amendment rights of their patrons, and accordingly is facially invalid”; the three-judge panel ruled Sections 1712(a)(2) and 1721(b) of the Children's Internet Protection Act to be facially invalid under the First Amendment and permanently enjoined the government from enforcing those provisions.
Because the three-judge panel permanently enjoined the FCC and LSTA from withholding funds from public libraries who have chosen not to install filters on all terminals, public libraries thus are not required to install filters on their computers in order to receive funds from either agency.
The opinion was unanimous. The opinion was written by Chief Judge Becker of the Third Circuit and joined by U.S. District Judges Fullam and Bartle.
The Court held that the CIPA statute is unconstitutional because the mandated use of filtering on all computers will result in blocked access to substantial amounts of constitutionally protected speech.
The Court found that filters both overblock (block access to protected speech) and underblock (allow access to illegal or unconstitutional speech).
The Court held that less restrictive alternatives exist to allow public libraries to protect children from material that is illegal for them to access. The Court found that public libraries can—and indeed that many do—use the following less restrictive alternatives:
- Filters offered as a choice for families to use for their own children at the public library;
- Education and Internet training courses;
- Enforcement of Internet Use policies by library staff; and
- Placement of terminals, use of privacy screens or utilization of recessed monitors.
According to a Jenner & Block memorandum dated June 18, 2002, the three-judge panel in the CIPA case held that the FCC and IMLS cannot withhold funds on the ground that a public library has failed to install mandatory filters on every computer. The Court held that “[b]ecause of the inherent limitations in filtering technology, public libraries can never comply with CIPA without blocking access to a substantial amount of speech that is both constitutionally protected and fails to meet even the filtering companies’ own blocking criteria.” While this decision is directly binding only on the agencies and is not a directive to any particular library, the factual findings and legal conclusions of the Court may serve as useful precedents for other lower courts. ALA thus urges any library using mandatory filtering software to consult with legal counsel to reevaluate their Internet Use Policy and assess the risk of future litigation.
The Justice Department, acting on behalf of the Federal Communications Commission and the U.S. Institute of Museum and Library Sciences, formally notified the Supreme Court on June 20 that it would appeal this ruling.