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SAN FRANCISCO — Last month, the United States Supreme Court held as constitutional the section of the Children’s Internet Protection Act (CIPA) that requires public libraries to use Internet filtering software to block access to material that is “obscene, child pornography or harmful to minors” as a condition of receiving federal funding. The way some libraries plan to respond could set a precedent.

With a 6-3 majority judgment and a 5-4 majority opinion, the Supreme Court reversed the May 31, 2002, decision of a Pennsylvania district court, which held that the CIPA section in question violated the Spending Clause by inducing public libraries to violate the First Amendment rights of adult library patrons. The district court emphasized that Internet filtering software is imprecise in that it “overblocks” or prevents adult library patrons from accessing constitutionally protected information.

Like the district court, the Supreme Court acknowledged that Congress may not attach conditions to the receipt of federal money if those conditions would induce the recipients (public libraries in this case) to act unconstitutionally. However, the Supreme Court disagreed with the district court and held that public libraries do not violate the free speech rights of adult library patrons by using Internet filtering software.

The Supreme Court’s reasoning differed from the district court in that it held that a public library’s offering of Internet access is the same as the selection of its print collection. The Supreme Court cited Congress as stating that the Internet is “no more than a technological extension of the book stack.” This is important because a public library is given great deference in deciding what print content to offer its patrons.

In equating the offering of Internet access to the selection of print material, the Supreme Court focused on a public library’s “traditional missions” and stated that public libraries “pursue the worthy missions of facilitating learning and cultural enrichment.” The Supreme Court, therefore, held that the blocking of certain constitutionally protected Internet content, especially that which is sexually explicit, is not a violation of the free-speech rights of adult library patrons.

The Supreme Court also addressed the problem of “overblocking” that was emphasized by the district court. The Supreme Court stated that “assuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled.” While the district court “viewed unblocking and disabling as inadequate because some patrons may be too embarrassed to request them,” the Supreme Court stated, “the Constitution does not guarantee the right to acquire information at a public library without any risk of embarrassment.”

Both the Santa Cruz Public Library (SCPL) and the San Francisco Public Library (SFPL) balked at the Supreme Court’s CIPA decision. Anne Turner, director of the SCPL, said, “The staff of the Santa Cruz City County Library System is very disappointed with the Supreme Court ruling, which we think demonstrates a lack of understanding of the role of public libraries and the function of the Internet in making all kinds of information available to the people.”

The Santa Cruz Library Joint Powers Authority Board will meet on September 9, 2003, to make a decision regarding compliance with CIPA. “My recommendation will be that we not comply on the ground that the required software blocks access to free-speech protected information,” Turner said. Failure to comply with CIPA would cost the SCPL approximately $15,000 annually, but that would be a “small price to pay for protecting the civil liberties of the staff and the public.”

Susan Hildreth, city librarian of the SFPL, agreed. “I, along with librarians and civil liberty groups across the country disapprove of today’s Supreme Court decision to force libraries to install filters or else surrender their federal funding.” Hildreth explained that, although the SFPL stands to lose approximately $250,000 of federal support, the library does not intend to change its Internet Use Policy, which states, “The Library does not monitor or control the content of the material accessed through the Internet.” Hildreth said, “We remain deeply concerned at the government’s insistence to position our librarians to serve as information monitors.”

Librarians are right to be concerned about the Supreme Court’s ruling. Internet filtering is loaded with technical problems and has never been an adequate safeguard for children. The ruling highlights the reality, often ignored, that federal funds always come with strings attached. If they truly give up cash for principle, the Santa Cruz and San Francisco libraries will be setting an important example.

Sophia Cope is a PRI intern and student at University of California, Hastings College of the Law. For the full text of the Supreme Court’s CIPA decision (case no. 02-361) go to www.supremecourtus.gov.