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This article is based on the United States District Court for the Eastern District of Pennsylvania decision in ALA v. United States No. 01-1303/Multnomah County Public Library v. United States No. 01-1322 decided May 31, 2002. Please note that page numbers referenced in this article refer to the decision as published in pdf format (not the html format) and may not correspond to the official citation. The author's intent is to sift out and translate the most relevant parts of the decision into library-speak. Readers are strongly encouraged, however, to read the decision itself to answer any and all of the questions below. The decision is unusually well written and a delight to read.

Question 1: What is the gist of the Children's Internet Protection Act (CIPA) decision?

Answer: The special three-judge federal district court decision held that the Children's Internet Protection Act (CIPA) is unconstitutional with respect to libraries because filter programs "erroneously block a huge amount of speech that is protected by the First Amendment." (93) The court found extensive evidence that the four leading filter programs over-block thousands of web pages. The decision goes into great detail on the inherent flaws in the technology for this task. Filtering companies are unable to accurately collect, review, categorize and regularly re-review pages. (9) This decision applies only to public libraries. The portion of the law that applied to schools was not challenged, and remains as law.

Question 2: What are some examples of erroneously blocked web sites?

Answer: The opinion devotes five pages to sites that have been erroneously blocked, giving specific URLs, the software and erroneous categories used. For example, church and religious sites have been blocked, including those of the Knights of Columbus Council 4828, the California Jewish Community Center, and Orphanage Emmanuel. Political sites such as a Libertarian candidate's page, the Wisconsin Right to Life, and a site promoting federalism in Uganda have been blocked. Blocked health sites include a guide to allergies, a cancer treatment site, and a site on halitosis. Additionally, home schooling sites, career sites, travel sites, and sports sites have all been erroneously blocked. (88-92)

Question 3: Doesn't the federal government have the right to decide what tax money is spent on?

Answer: Yes, it does. The Supreme Court has said, however, that strings on federal money may not be used to "induce the States to engage in activities that would themselves be unconstitutional." South Dakota v. Dole, 483 U.S. 203, 210 (1987). (98) Also instructive is Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001)(declaring unconstitutional a federal law that restricted legal services providers who received federal funds from participating in litigation that challenged welfare laws). (102)

Question 4: What is the legal framework that the court used to analyze the Children's Internet Protection Act?

Answer: As in virtually any First Amendment case, the standard of review that the court uses has an enormous impact on the outcome of the case. Here the court determined that the "strict scrutiny" standard must be used. For the government to win under a "strict scrutiny" standard, it must show that a law is narrowly tailored to promote a compelling government interest and that no less restrictive alternative would further that interest. (105) Note: As soon as a court decides to use the "strict scrutiny" standard, it's almost a sure thing that a law will be found unconstitutional.

The government argued unsuccessfully that the court should apply a different, deferential standard, known as "rational review." (105) "Rational review," is often used when a law restricts speech on the government's own property. When "rational review" is used, a law is usually upheld.

Question 5: The part of the law that was challenged required that filters be used in public libraries. Even then, it only required libraries that received certain federal funds to filter. Why did the Court determine that Strict Scrutiny was the proper standard of review?

Answer: Even restrictions on government property generally receive strict scrutiny if a public forum has been created and the restrictions are based on content (as opposed to time, place and manner restrictions, which get an intermediate level of scrutiny). The court found that Internet Access in a public library constitutes a designated public forum. (106-137) A designated public forum is a space that the government dedicates to the public for expressive purposes. The court explained its reasoning that the broader the range of speech that is facilitated in a public forum, the less likely it is that content-based restrictions will be upheld. (116)

Question 6: Is it illegal, then, for librarians to choose to buy books based on content?

Answer: No. The court said that collection development policies are generally subject to the rational review standard. (120) A public library's decision to use the "last $100 of its budget" to purchase Shakespeare, even if more of its patrons would prefer John Grisham would be given great deference by the court. (p. 121) Library staff may exercise professional judgment using a variety of criteria, such as accuracy, the title's niche in relation to the rest of the collection, the authority of the author, the publisher, the work's presentation, and how it compares to other material in the same genre or on the same subject. (122-123).

Question 7: Why wouldn't the same analysis be used when a library filters Internet sites?

Answer: Several of the governments' witnesses testified that the same standards that govern the library's print collection should be applied to the Internet. The court, however, said that when a library offers Internet access, it opens its doors to vast amounts of speech that lack sufficient quality to ever be considered for the print collection. (123, 124). Filters do not consider quality, but at best aim for content categories. It would be different if a library affirmatively selected websites (using criteria such as accuracy etc.) and only allowed access to those preselected sites. Preselected sites might not be a feasible method, however, as the Westerville Ohio library's experience with The Library Channel showed. (44-45)

Question 8: Why should a library allow Internet sites that lack

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