CIPA Ruling: No Effect on Schools

While many First Amendment advocates are celebrating the May 31 court decision to strike down a law requiring Internet filters in public libraries, the ruling will have no impact on schools. That means K–12 schools across the nation are still subject to the provisions of the Children's Internet Protection Act (CIPA), which, until the recent decision, required that schools and libraries install a "technology protection measure" to protect children from online smut. Schools failing to comply will lose federal subsidies (the government gives about $2.25 billion annually to schools and public libraries through its E-rate program of discounted technology and Internet access lines).

Judith Krug, director of the office for Intellectual Freedom of the American Library Association (ALA), hailed the three-judge district court ruling that CIPA is unconstitutional in public libraries. "It was an incredible ruling," Krug says. "Not only did the judges listen intently to the evidence, but they understood it. They have taken the issues, and they have in effect developed a primer for filtering—how it's done, when it's done, the benefits, and the drawbacks."

Last year, ALA and the American Civil Liberties Union led the challenge against CIPA on behalf of librarians, patrons, and Web sites, but school districts did not join the litigation. Krug explains that although ALA has no standing in court on behalf of schools, there's nothing stopping school districts from filing a similar suit, particularly since there's now extensive evidence proving "that filters just don't work." Currently, 74 percent of K–12 schools use filters.

In a 195-page decision, the judges said, "It is currently impossible, given the Internet's size, rate of growth, rate of change, and architecture, and given the state of the art of automated classification systems, to develop a filter that neither under blocks nor over blocks a substantial amount of speech." Libraries and other plaintiffs testified that legitimate sites, including those relating to churches and religious orders, had been erroneously blocked by four of the most popular filtering programs.

Krug, who is vehemently opposed to filters, says, "If I had kids in school, I would take these findings, and I'd raise holy hell if my schools used filters, because I think that they are violating the very reason that we have public education in this country." She does, however, admit that issues relating to children and schools tend to be complicated and volatile.

So far, no school districts have challenged CIPA, but Eugene Volokh, a professor of law at UCLA who specializes in free speech and cyberspace law, says the logic in this ruling could certainly be used as a basis of argument with regard to schools. Volokh says it's important not to cast this ruling as "Libraries are winners if filtering is prohibited and losers if filtering is allowed." He, like some school librarians, favors filters in schools. "As a constitutional matter, there is no doubt that school libraries have a lot more authority than public libraries because children are not treated exactly the same way by First Amendment jurisprudence," Volokh adds. He says older teenagers shouldn't be treated as adults in this case because they're generally not treated as adults under the law. If the government chooses to appeal, as is expected, a decision will likely come in early July 2003, Volokh says.

This marks the third time in recent years that similar laws have been overturned for violating First Amendment free speech protections. An appellate panel struck down the 1998 Children's Online Protection Act, which also sought to prevent children from exposure to online obscenity. But the Supreme Court reversed some parts of the decision and it was sent back for review. The Supreme Court also unanimously struck down the 1996 Communications Decency Act, which would have held Internet service providers responsible for online obscenity. That decision was cut and dry because the government simply passed a law criminalizing certain kinds of Internet material. The outcome of a CIPA appeal, however, is less certain because it deals with the government acting as librarian, Volokh says. Signed into law two years ago by President Bill Clinton, CIPA would have gone into effect for public libraries on July 1.