By Jason Collum, AFA Journal staff writer

August 2002 – For the time being, public libraries around the United States will continue to become havens where children and adults can go and view pornographic Web sites, thanks to a ruling from a three-judge federal panel.

In May, the panel unanimously struck down the Children’s Internet Protection Act (CIPA), which would have withheld federal funding from libraries that failed to install Internet filtering software on public access computers to block sexually explicit Web sites. CIPA was signed into law in 2000, and was supposed to go into effect July 1 of this year.

The court said CIPA relies on filtering software that also blocks sites on politics, health, science and other topics that should not be suppressed.

AFA Center for Law and Policy attorney Brian Fahling said the federal judges’ ruling was flawed. “The federal panel’s decision is very bad, not only in its result, but in its reasoning as well,” Fahling said. “Any time a court takes 195 pages to explain itself, there is a problem. This is not rocket science. CIPA simply linked the receipt of federal funds for libraries to the installation of filters on computers for the laudable purpose of keeping librarians and patrons, especially children, from being exposed to obscene and pornographic material, including child pornography, and to protect them from those who would view such material. In other words, the feds said, ‘If you want our money, we are going to require you to keep smut off your computers.’”

Fahling said CIPA did not violate the First Amendment, as the judges said, and as the American Library Association (ALA), a proponent of unchecked Internet access in public libraries, had alleged.

“The law operated much like librarians normally operate when making acquisition decisions,” Fahling said. “Librarians don’t normally make a habit of collecting obscenity and child pornography for their collections. This is a legitimate form of censorship, especially since child pornography and obscenity have no First Amendment protection and pornography only marginally so, or at least that’s what the Supreme Court has said in the past.”

One reason the judges and the ALA were against CIPA was because filtering software sometimes tends to over-block Web sites, and as a result, if a library customer wanted to visit a site that was wrongly blocked, he or she might have to wait 24 hours to get a site unblocked.

“This is a particularly bizarre concern,” Fahling said. “If I go to a library and it does not carry a particular book I am looking for, it might be obtained through an inter-library loan. But I will have to wait at least 24 hours, probably more, to get the volume. This has never been viewed as a problem with constitutional contours. Similarly, a delay in access to an improperly blocked site is not a problem of constitutional magnitude. The court has never before required ‘mathematical precision’ in the drafting of legislation – until now.”

For now any effort to get filtering into public libraries appears dead, and this could potentially make libraries places parents might not want their children to visit.

“Libraries were once known as peaceful refuges where one could safely go for academic and intellectual enrichment. No more,” Fahling said. “They are quickly becoming little more than adult theaters with bookshelves. And we have the courts, together with the ALA, to thank for it.”