Amicus Curiae Brief — United States v. American Library Assn., Inc.

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Supreme Ceurt

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wy, JAN 1 0 2003

In The

Supreme Court of the Gnited States

UNITED STATES OF AMERICA, ET AL.,

Appellants,

AMERICAN LIBRARY ASSOCIATION, INC., ET AL.

On Appeal From The United States District Court

For The Eastern District Of Pennsylvania

BRIEF AMICI CURIAE OF SENATOR TRENT LOTT,

CONGRESSMAN CHARLES W. “CHIP” PICKERING,

CONGRESSMAN MARK SOUDER, AND

CONGRESSMAN ROGER F. WICKER

IN SUPPORT OF APPELLANTS

BRIAN FAHLING

Senior Trial Attorney

(Counsel of Record)

STEPHEN M. CRAMPTON

Chief Counsel

MICHAEL J. DEPRIMO

Senior Litigation Counsel

AFA CENTER FOR LAW & POLICY

100 Parkgate Dr.

Ste. 2-B

P.O. Drawer 2440

Tupelo, MS 38803

Tel: 662.680.3886

Fax: 662.844.4234

COCKLE LAW BRIEF PRINTING UO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

THE PROBLEM CONGRESS SOUGHT TO

A. Sexually Explicit Images in Public Li-

B. Alternative Measures to Filtering Have

Been Tried and Have Failed.....................

CIPA IS A CONSTITUTIONAL TIME, PLACE

AND MANNER REGULATION INTENDED TO

PROTECT LIBRARY PATRONS, STAFF, AND

CHILDREN FROM THE ADVERSE SECON-

DARY EFFECTS OF SEXUALLY EXPLICIT

MATERIAL DISPLAYED ON MONITORS IN

A CIPAIs Not a Content Based Regulation.....

B. Delay Is Not Denial, and There Is No

Constitutional Right to Be Free From

Embarrassment When Checking Out a

Book or Requesting Assistance From a

Librarian to Unblock a Website...............

CORFCLAIGIOIN ...cccccscosorescccccsccscccsccsccosesesossssscssssoseoes

i lai

TABLE OF AUTHORITIES TABLE OF AUTHORITIES - Continued

Page Page

CASES: Library Services and Technology Act (LSTA), 20

American Library Ass’n v. United States, 201 CF 2

F. Supp.2d 401 (E.D. Pa. 2002)...........ccceeeeeeeeeees passim Didecememmemietions Act, 67 UBC. © BBE ccccxeceesseccocescseeon 2

Brown v. Louisiana, 383 U.S. 131 (1966).............cccceeeeeeeees i)

Denver Area Educational Telecommunications

Consortium, Inc. v. FCC, 518 U.S. 727 (1996).............+. 12

Fabulous Assocs., Inc. v. Pa. Pub. Util. Comm'n,

896 F.2d 780 (Sd Cir. 1900) ..........sssccrcrrcccccrrccccccceeeeseseees 12

Ginsberg v. New York, 390 U.S. 629 (1968) ..........ccceeeeeeees 10

Grayned v. City of Rockford, 408 U.S. 104 (1972)..........+++. 4

Lamont v. Postmaster General, 381 U.S. 301 (1965)......... ll

Miller v. California, 413 U.S. 15 (1973) ...........ccceeeneeeeeeees 10

New York v. Ferber, 458 U.S. 747(1982) ............:ceeeeeeeeeeeeees 9

Reno v. ACLU, 521 U.S. 844 (1997)........:ccccccceeeeeeeeeeeeeerenees i)

Renton v. Playtime Theatres, Inc., 475 U.S. 41

i ath hase india ahiiaieaeenrnteandgeneincnnecenl i oatelasiiataeains 10

Roth v. United States, 354 U.S. 476 (1957) ........ccccccceeeeeees 10

Sable Communications v. FCC, 492 U.S. 115 (1989) ........ 10

Young v. American Mini Theatres, Inc., 427 U.S. 50

ata la ccaarignmnneincnnenneseniell 10, 11, 14

OTHER AUTHORITIES:

5 passim

Children’s Internet Protection Act (CIPA), Pub. L. No.

| ae passim

INTEREST OF AMICI’

Amici Curiae are Senator Trent Lott, who represents

the State of Mississippi in the United States Senate;

Congressman Charles W. “Chip” Pickering, who represents

the Third District of Mississippi in the United States

House of Representatives; Congressman Mark Souder,

who represents the Fourth District of Indiana in the

United States House of Representatives; and Congress-

man Roger F. Wicker, who represents the First District of

Mississippi in the United States House of Representatives.

All were proponents and/or co-sponsors of the Childrens

Internet Protection Act.

As citizens and Members of Congress, Mr. Lott, Mr.

Pickering, Mr. Souder, and Mr. Wicker have an abiding

interest in ensuring appropriate protection for children,

adults, and staff in our public libraries. These members of

Congress thus have a strong interest in this case and

submit that the Children’s Internet Protection Act is a

constitutional means to attain that worthy object.

SUMMARY OF ARGUMENT

This case marks with stunning clarity the previously

undefined intersection between government regulated

Internet access in public libraries and First Amendment

jurisprudence. A collision. was inevitable, and when it

finally occurred in the court below, undifferentiated

' The parties have consented to the filing of this brief.

Counsel for a party did not author this brief in whole or in part. No

person or entity, other than the Amici Curiae, its members, or its

counsel made a monetary contribution to the preparation and submis-

sion of this brief.

Internet access appears to have been the only survivor.

The wooden application of traditional First Amendment

law to the extraordinary dynamics and problems pre-

sented by patrons who access sexually explicit material via

the Internet in public libraries strips government of the

ability to protect children and others from the adverse

secondary effects of such material. Congress sought to

require such protection when it adopted the Children’s

Internet Protection Act (CIPA), Pub. L. No. 106-554,

whose principal object was to prevent the adverse

secondary effects that arise from the introduction of

material that is obscene, child pornography, or harmful to

minors into federally funded public libraries.

It has long been recognized that government may

constitutionally protect the public by regulating obscenity,

material harmful to minors, and sexually oriented busi-

nesses. After the ruling of the court below, however,

Congress cannot provide the same protection to its citi-

zens, especially children, in public libraries. First Amend-

ment jurisprudence must be adapted to the realities of

technology in the twenty-first century if libraries are to

remain places “dedicated to quiet, to knowledge, and to

beauty,” and if Congress is to be permitted to provide

library patrons and staff protection from the adverse

secondary effects arising from exposure to sexually explicit

material. The ruling of the court below should be reversed.

, +

* CIPA makes the use of filters by a public library a condition of its

receipt of two kinds of subsidies, grants under the Library Services and

Technology Act, 20 U.S.C. § 9121 et seg. (LSTA), and so-called “E-rate

discounts” for Internet access and support under the Telecommunica-

tions Act, 47 U.S.C. § 254.

ARGUMENT

This case highlights the difficulties that attend First

Amendment questions presented in the context of spectacu-

lar, and until recently, unimaginable technological advances

that have revolutionized our society. The Internet has

become ubiquitous, and with its manifold benefits come

significant questions about the right of government to

protect its citizens in public places where the Internet is

made available. Specifically, the introduction of the Internet

has brought with it the introduction into public libraries of

material that is obscene, child pornography, and harmful

to minors.’ Library staff and patrons, including children,

are now regularly confronted by sexually explicit images,

the exhibiting of which in any other public setting is

subject to outright prohibition under obscenity statutes, ~

and strict regulation under harmful to minor statutes,

public nudity ordinances, and zoning restrictions such as

those placed upon sexually oriented businesses. CIPA was

designed to ensure that public libraries receiving federal

funding provide similar protection to their patrons and

staff. See H. Con. Res. 441 (2002) (expressing the sense of

* When an individual logs onto the Internet, he has at his finger-

tips the largest data base in the world. In addition to literally billions of

millions of pages of material that is obscene, child pornography, and/or

harmful to minors. American Library Ass'n v. United States, 201

F. Supp.2d 401, 406 (E.D. Pa. 2002) (noting there are more than

100,000 pornographic Web sites that can be accessed for free without

providing any registration information). In public libraries, adults,

adolescents, and children regularly seek Internet access to hard-core

pornography. Id. at 405-406, 423. And library staff and patrons are

regularly exposed to obscene images left on computer terminal screens.

Id. at 423.

Congress that CIPA “simply regulates the time, place and

manner of speech in a reasonable way”).

The unique nature of the Internet and the problems

posed by it to public libraries have no real analogue in

First Amendment jurisprudence. Prior to the ruling by the

court below, decisions about what materials are made

available to library patrons rested in the editorial discre-

tion of public libraries. There is no principle of law that

can be pressed into service to require, for example, that a

library carry Penthouse or other sexually explicit material.

There is no constitutional right to require public libraries,

paid for by public funds, to provide unrestricted access to

sexually explicit material.‘

The unique characteristics of the Internet, however, as

amplified by the lower court’s reasoning, remove decision-

making authority from libraries and place it directly in the

hands of library patrons. American Library Ass'n, 201

F. Supp.2d at 464. The fundamental question presented,

then, is whether public libraries, merely by providing

Internet access, are constitutionally required to relinquish

all editorial discretion over what is permitted in the

library, even when it involves material that is obscene,

child pornography, and/or material harmful to minors,

simply because current technology does not permit them to

exclude such material with mathematical precision. See

Grayned v. City of Rockford, 408 U.S. 104, 110 (1972)

‘ The constitutional right to receive indecent materials does not

correspond to a right of government provision. There is simply no legal

basis to assume that government libraries are required to provide

pornography to their patrons. Thus, the fundamental presupposition

upon which the lower court rested its decision is invalid.

(“Condemned to the use of words, we can never expect

mathematical certainty from our language.”).

I. THE PROBLEM CONGRESS SOUGHT TO

ADDRESS WITH CIPA

With CIPA, Congress sought to deal with the wide-

spread problem of sexually explicit images being displayed

on computer terminals in public libraries that provide

Internet access. Congress determined that preventing

access to the images was the most effective way to accom-

plish the goal of avoiding the adverse secondary effects

associated with the viewing of such images by children,

non-consenting adults, and library staff. “Less restrictive”

alternative measures identified by the court below become

operative only after the sexually explicit image appears on

the computer screen, the very evil CIPA was designed to

avoid.

A. Sexually Explicit images in Public Libraries.

Sexually explicit material on the Internet is easily

accessed using any public search engine, such as Google or

AltaVista. American Library Ass’n, 201 F. Supp.2d at 419.

And although much of the sexually explicit material

available on the Web is posted on commercial sites that

require viewers to pay in order to gain access to the site, a

large number of sexually explicit sites may be accessed for

free and without providing any registration information.

Id. Some Web sites that contain sexually explicit content

seek to lure the unwitting user with innocuous domain

names that can be reached accidentally.’

Inadvertent access to sexually explicit sites by patrons

is just one problem that libraries face. Libraries are also

confronted, for example, with situations in which patrons

leave sexually explicit images on an Internet terminal so

that the next patron will see them when they begin using

it, or in which patrons print sexually explicit images from

a Web site and leave them at a public printer. Jd. at 423. A

study of the Tacoma Public Library's Internet use logs for

the year 2000 (a study credited by the court below) showed

that users between the ages of 11 and 15 accounted for

41% of the filter blocks that occurred on library computers.

The study concluded that children and young teens were

actively seeking to access sexually explicit images in the

library. Id.

The problem of library patrons surfing the Web for

pornography was captured in the testimony of the Chair-

man of the Board of the Greenville, South Carolina Public

Library.’ In December 1999, there was considerable local

* One commonly cited example is http//www.whitehouse.com. Other

innocent-sounding URLs that retrieve graphic, sexually explicit

depictions include http//www.boys.com, http//www.girls.com, http://www.

coffeebeansupply.com, and http://www. BookstoreUSA.com. Moreover,

commercial Web sites that contain sexually explicit material often use a

technique of attaching pop-up windows to their sites, which open new

windows advertising other sexually explicit sites without any pro apt-

ing by the user. This technique makes it difficult for a user to quickly

exit all of the pages containing sexually explicit material, whether he or

she initially accessed such material intentionally or not. Id. at 419.

* The Chairman's testimony is illustrative of other librarians and

board members who testified in the trial court below. Id. at 423.

press coverage in Greenville concerning adult patrons who

routinely used the library to surf the Web for pornography.

Id. In response to public outcry stemming from the news-

paper report, the Trustees held a special board meeting.

Id. At the meeting, the Trustees learned for the first time

of complaints that children were being exposed to pornog-

raphy that was displayed on the library's Internet termi-

nals. Id.

B. Alternative Measures to Filtering Have

Been Tried and Have Failed.

The court below identified three “less restrictive”

alternatives to filtering to deal with the problem of

Internet pornography in libraries. Jd. at 424. The three

alternative measures were (1) channeling patrons’ Inter-

net use; (2) separating patrons so that they will not see

what other patrons are viewing (this method includes the

installation of privacy screens and recessed monitors); and

(3) placing Internet terminals in public view and having

librarians observe patrons to make sure that they are

complying with the library’s Internet use policy. Id. Sig-

nificantly, all of the alternative methods suffer significant

drawbacks, not the least of which is their failure to pre-

vent patrons from accessing sexually explicit images and

the corresponding failure to prevent inadvertent viewing

of the images. Jd. at 424-426. In short, the “alternative”

methods are really not alternatives at all because they

permit precisely what CIPA seeks to prevent — the display

of sexually explicit material on library monitors.

The experience of the Greenville library is illustrative

of the failure of the alternative measures to protect

against the problem of Internet pornography in libraries.

Early in 2000, the Greenville library installed privacy

screens and recessed terminals in an effort to restrict the

display of sexually explicit Web sites at the library. Staff

were also told that they were to enforce the library’s policy

prohibiting access to obscenity, child pornography, etc., by

means of a “tap on the shoulder.” Jd. at 423-424. The

library later removed the privacy screens and reconfigured

the location of the computers so that librarians had visual

contact with all Internet-accessible terminals, and re-

moved the privacy screens from terminals with Internet

access. Id. Even after the Board implemented the privacy

screens and later the “tap-on-the-shoulder” policy com-

bined with placing terminals in view of librarians, the

library experienced a high turnover rate among reference

librarians who worked in view of Internet terminals. Jd.

The Board found that the policies_it had tried failed to

prevent the viewing of sexually explicit materials in the

library. Id. The Board finally concluded that the methods

it had used to regulate Internet use were not sufficient to

stem the problems linked to the availability of porno-

graphic materials in the library. Id.

Each of the alternative measures identified by the

court below fails to accomplish the object intended by

CIPA. Unlike filters, which are designed to prevent prohib-

ited content from being imported into the library in order

to prevent adverse secondary effects such as the impact on

children who are exposed to sexually explicit images, the

alternative measures, as a practical matter, become

operative only after such material is present on the com-

puter monitor, and so can be inadvertently viewed by

children, non-consenting adults, and library staff, thereby

causing the very harmful secondary effects CIPA was

intended to prevent.

Il. CIPA IS A CONSTITUTIONAL TIME, PLACE

AND MANNER REGULATION INTENDED TO

PROTECT LIBRARY PATRONS, STAFF, AND

CHILDREN FROM THE ADVERSE SECON-

DARY EFFECTS OF SEXUALLY EXPLICIT

MATERIAL DISPLAYED ON MONITORS IN

PUBLIC LIBRARIES.

This Court has observed that a library is “a place

dedicated to quiet, to knowledge, and to beauty.” Brown v.

Louisiana, 383 U.S. 131, 142 (1966). CIPA was an unmis-

takable Congressional effort to preserve and perpetuate

this idea in the face of clear evidence that access to the

Internet is rapidly transforming public libraries into

publicly funded adult bookstores where children, as well

as unwitting adults, are exposed to sexually explicit

material. The ruling of the court below will, unfortunately,

ensure that the noble quiddity of the library will become

little more than a faint memory. The court below should

therefore be reversed.

A. CIPA Is Not a Content Based Regulation.

CIPA, by its very name, underscores the fact that

Congress sought, not to regulate content, but to protect

against the adverse secondary effects of children being

exposed to sexually explicit material in public libraries,

among others. In order to accomplish this goal, CIPA

requires that libraries block or filter visual depictions that

are obscene, child pornography, or harmful to minors.

CIPA, §1721(b). Transmission of obscenity and child

pornography, whether via the Internet or other means, is

illegal under federal law both for juveniles and adults and

thus has no protection under the First Amendment. Reno

v. ACLU, 521 U.S. 844, 877 n.44 (1997); New York v.

Ferber, 458 U.S. 747, 764 (1982); Miller v. California, 413

U.S. 15, 20 (1973); Roth v. United States, 354 U.S. 476,

484-485 (1957).

This Court has likewise recognized that states have a

compelling interest in protecting the physical and psycho-

logical well-being of minors from the harmful effects of

sexually explicit material. See, e.g., Sable Communications

v. FCC, 492 U.S. 115 (1989). In Ginsberg v. New York, 390

U.S. 629 (1968), this Court upheld a conviction for selling

to a minor magazines which were concededly not “obscene”

if shown to adults. Furthermore, it was pointed out in

Young v. American Mini Theatres, Inc., 427 U.S. 50, 71

(1976) (plurality opinion), that even members of the Court

who accorded the greatest protection to such materials

repeatedly indicated that the State could prohibit their

distribution or exhibition to juveniles and unconsenting

adults. Jd. at 69. CIPA is intended to prohibit such materials.

There is a dramatic, if not perfect correspondence

between the issues raised in this case and those extant in

traditional “secondary effects” cases. In American Mini

Theatres, for instance, a city determined that a concentra-

tion of “adult” movie theaters caused an area of the city to

deteriorate and become a focus of crime, effects which

were not attributable to theaters showing other types of

films. This Court upheld the ordinances regulating adult

theaters because it was the secondary effects which the

zoning ordinances attemped to avoid, not the dissemina-

tion of “offensive” speech. Id. at 71; see also Renton v.

Playtime Theatres, Inc., 475 U.S. 41 (1985).

Similarly, CIPA is based on Congress’ determination

that sexually explicit images on a computer terminal in a

public library cause adverse secondary effects which are

not attributable to other images that might appear on a

computer monitor in a library. It is the adverse secondary

effects of the sexually explicit images that CIPA seeks to

prohibit, not the dissemination of “offensive” speech.

Indeed, CIPA’s filter requirement is unaffected by what-

ever social, political, or philosophical message an image

may be intended to communicate; whether an image

ridicules or characterizes one point of view or another, the

effect of the ordinances is exactly the same. Cf. American

Mini Theatres, 427 U.S. at 70. Just as the city’s “interest

in attempting to preserve the quality of urban life is one

that must be accorded high respect,” id. at 71, so Congress’

interest in protecting library patrons and in preserving the

quality of federally funded libraries must be afforded

s:milar respect. =

It is also important that the wisdom of Congress’

chosen means to deal with the problem not be questioned.

In American Mini Theatres, this Court observed, “i]t is

not our function to appraise the wisdom of [the city’s]

decision to require adult theaters to be separated rather

than concentrated in the same areas... . [The] city must

be allowed a reasonable opportunity to experiment with

solutions to admittedly serious problems.” Jd. (brackets in

original). Congress must also be given a reasonable oppor-

tunity to deal with the admittedly serious problem caused

by sexually explicit images on the Internet.

B. Delay Is Not Denial, and There Is No Con-

stitutional Right to Be Free From Embar-

rassment When Checking Out a Book or

Requesting Assistance From a Librarian

to Unblock a Website.

The lower court went so far as to find constitutionally

impermissible CIPA’s provisions permitting a patron

to request that a site be unblocked. Citing Lamont v.

Postmaster General, 381 U.S. 301 (1965) (federal statute

which required Postmaster General to halt delivery of

communist propaganda unless the addressee affirmatively

requested the material held unconstitutional), Denver

Area Educational Telecommunications Consortium, Inc. v.

FCC, 518 U.S. 727 (1996) (federal law requiring cable

operators to allow access to patently offensive, sexually

explicit programming only to those subscribers who

requested access in advance and in writing held unconsti-

tutional), and Fabulous Assocs., Inc. v. Pa. Pub. Util.

Comm’n, 896 F.2d 780 (3d Cir. 1990) (state law requiring

telephone users who wish to listen to sexually explicit

telephone messages to apply for an access code to receive

such messages held unconstitutional), the court below

found that “even if [CIPA’s] disabling provisions permit

public libraries to allow patrons to access speech that is

constitutionally protected yet erroneously blocked .. . the

requirement that library patrons ask a state actor's

permission to access disfavored content violates the First

Amendment.” American Library Ass’n, 201 F. Supp.2d at

486. The cases relied upon by the court below are clearly

inapposite, as they have nothing to do with conduct in a

public setting that causes adverse secondary effects on

others with an equal right to be there; rather, they deal

with an individual’s right to receive mail, to view pornog-

raphy in his home, and to listen to sexually explicit mes-

sages over the telephone.

Nevertheless, reasoning from those cases, the lower

court found CIPA’s disabling provisions constitutionally

flawed for two reasons. First, the court thought the provi-

sions would deter patrons from asking permission to

access constitutionally protected but sensitive information.

Id. For example, the lower court believed that a patron

who was too embarrassed to request assistance from a

librarian would suffer constitutional injury as a result. Jd.

at 487. And second, the lower court found that even where

requests could be made anonymously, delay in acting on

the request would likewise inflict constitutional injury on

the patron. Jd. at 487-488.

In the absence of any affinity between the cases cited

by the lower court and the instant case, it is unclear why

the lower court relied on them in reaching its conclusions

that delay in access to an Internet site, and deterrence

arising from embarrassment in requesting assistance

amount to constitutional violations. The most obvious and

apropos analogues suggest a different conclusion. Inter-

library loans, for example, have never been found to be

unconstitutional (as it apparently never occurred to

anyone that inter-library loans are unconstitutional), though

the patron who is denied access to a desired book because of

its unavailability at his library must patiently await its

arrival from another library. And if the desired book is of a

“sensitive” nature so as to cause embarrassment to the

patron who must now request it via an inter-library loan,

she must overcome her embarrassment or forgo the

desired tome — but she will have suffered no constitutional

injury.

The inconveniences of inter-library loans and delayed

access to a blocked Internet site, then, are identical in

quality (although access to a blocked Internet site may be

delayed considérably less than an inter-library loan), only

the means of acquisition differs. In each case, delay and

potential embarrassment confront the library patron. The

Joy of Sex in the form of a book carries with it no constitu-

tional right to be free from embarrassment nor a constitu-

tional right to immediate acquisition by adult library

patrons; however, if The Joy of Sex is available on the

Internet but is inadvertently blocked by a public library's

filtering software, there immediately arises, under the

lower court’s reasoning, a constitutional right for adult

library patrons not to be delayed in acquiring it or embar-

rassed in having to request assistance in acquiring it.

Such distinctions defy logic.

As this Court has observed,

though we recognize that the First Amendment

will not tolerate the total suppression of erotic

materials that have some arguably artistic value,

it is manifest that society's interest in protecting

this type of expression is of a wholly different,

and lesser, magnitude than the interest in un-

trammeled political debate. . .. Whether political

oratory or philosophical discussion moves us to

applaud or to despise what is said, every school-

child can understand why our duty to defend the

right to speak remains the same. But few of us

would march our sons and daughters off to war to

preserve the citizen’s right to see ‘specified Sexua!

Activities’ exhibited in the theaters of our choice.

American Mini Theatres, Inc., 427 U.S. at 70. CIPA is a

constitutional time, place and manner regulation intended

to address the serious problem occasioned by sexually

explicit materials on the Internet in public libraries.

CONCLUSION

Whatever may be the right of a public library patron

to receive and view sexually explicit materials, it should

not be permitted to trump the right of Congress to impose

reasonable restrictions on the use of the Internet in order

to protect innocent children and others from the poten-

tially devastating secondary effects of accidentally con-

fronting hardcore pornographic images on a computer

screen. CIPA is a valid time, place and manner regulation

targeting harmful secondary effects. The lower court

should be reversed.

Respectfully submitted,