CIPA Paper for 666

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Children’s Internet Protection Act and First Amendment Rights Dawn Bish and Cyndi Atwell

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Children’s Internet Protection Act and First

Amendment Rights

LIS 666

Dawn Bish and Cyndi Atwell




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Introduction

Students writing about a school assignment of Huckleberry Finn on a blog were denied

access to the blog from their school computers (Dobiga, S 2007).

Teachers attempting to access Yahoo images for a biology class were denied access to

the website at school (Dobiga, S 2007).

A seven year old student, surfing the internet for information on Sonic X (the cartoon

hedgehog) inadvertently landed on a pornographic website. (The computers in this

school had filters in place to be CIPA compliant)

Congress shall make no law respecting establishment of religion, prohibiting thefree exercise thereof, or abridging the freedom of speech, or the press or the right

of people peacably to assemble and to petition the Government for redress of

grievances. (Amendment 1, Constitution of the United States, 1791)

The First Amendment to the constitution of the United States has been interpreted time

and time again as free speech but also freedom to acquire knowledge. This freedom of

information can be implied as one cannot have free speech without knowing what one is

speaking about. In order for one to exercise the right of free speech, one needs to have

freedom to information on all points of view on a topic, to carefully review and propagate

this knowledge to make informed decisions on what to speak on.

However, as a whole, the protection of children from inappropriate materials such as

obscenity, materials harmful to minors and pornography has prompted lawmakers to

develop legislation to restrict the rights of minors when it comes to access of information

especially when dealing with the internet and the World Wide Web. This is a direct

violation of First Amendment rights. According to Kelsey,

First Amendment rights ensure Unites States citizens have freedom of speech and

of the press, among other freedoms relating to expressions of beliefs and ideas.The right o receive information has been interpreted as a corollary to the First

Amendment, implying the right to read and think for oneself. This is an important

right for K-12 students. To develop into informed citizens in a free society, they

must be allowed to explore ideas in order to partake in free speech (N/D 2007)




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According to the Children‟s Internet Protection Act, Study of Technology Protection

Measures, by fall of 2001, 99 % of public schools will have internet access and 87% will

have internet access in classrooms. (Children's Internet Protection Act Study of

Technology Protection Measures, 2003). Although the founding fathers may not have

foreseen the technologies of today such as radio, television, cell phones and the World

Wide Web, these technologies are not excluded from the First Amendment.

So how does one protect minors from inappropriate materials and still stay within the

letter of the First Amendment rights of access to information and knowledge? Is it okay

to prevent minors from viewing portraits of nudes even if it is under the auspices of „art‟?

Should access to sex education be limited to minors because they may find some things

that could be portrayed as pornographic or harmful to minors? What about the child who

is researching a topic for a paper and comes upon filters blocking the sites where he

can get information? This paper will attempt to address these issues within the backing

of legislation and First Amendment rights.

First Amendment Legislation Pertaining to Minors

There have been numerous First Amendment cases dealing with minors and freedom of

expression and freedom of information. As a whole, the court system has reliably

upheld minors First Amendment rights to freedom of expression and freedom of

information. The following is a review of some of those court cases.

Tinker v. Des Moines

Several students wore black armbands to school in protest of the Vietnam War. The

students were suspended as the armbands were seen as being disruptive to the school.

The Supreme Court ruled on February 24, 1969 that:

The wearing of an armband to express views is a symbolic act that is within the

free speech clause of the First Amendment. First Amendment rights applied to the

school environment are available to students and teachers. It can hardly be

argued that either students or teachers shed their constitutional rights to freedom

of speech or expression at the schoolhouse gate (Kelsey, N/D 2007).

In this case, the Supreme Court upheld that the wearing of armbands was protected by

the First Amendment right to freedom of expression and that this freedom of expression

was not given up just because the students were in school.




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Board of Education v. Island Trees Union Free School District No. 26 v. Pico

Two school board members removed 9 books from the school media center after

reading a list of books believed to be unsuitable to students. The school board defended

their actions as being „not censors but protectors of children reflecting the values of the

community‟ (Kelsey, N/D 2007). In 1982 the Supreme Court found in favor of keeping

the books on the auspices of the school board could not restrict access to material

simply because they disagreed with the ideas of them (Kelsey, N/D 2007). Therefore,

one could not censor reading material for minors just on the fact that one does not

agree with the content or finds the content to be „not appropriate for children‟.

Ginsberg v. New York

In Ginsberg v.New York, the courts upheld prosecution of a vendor for selling an adult

magazine to a 16 year old. The court explained that, although the magazine was not

„obscene‟ for adults, the state had acted within First Amendment bounds in adopting a

distinct, broader definition of „obscenity‟ for minors. (Minors Rights to Recieve

Informaiton Under the First Amendment, 2004). Since obscenity is not protected under

the First Amendment, legislation may be made against what is deemed „obscene‟ for

minors versus what is „obscene‟ for adults.

The Community Decency Act

On February 8, 1996, President Clinton signed the Community Decency Act (CDA)

(Lavell, N/D 2004). This was the first law pertaining to protection of minors and the

Internet. This law made it a criminal offense with imprisonment and fines if found guilty

of sending or displaying offensive material to persons under the age of eighteen.

Offensive material was defined as:

“any comment, request, suggestion, proposal, image, or other communication that,

in context, depicts or describes, in terms patently offensive as measured by

contemporary community standards, sexual or excretory activities or organs”(Lavell, N/D 2004)

In order to prevent prosecution, one must restrict access of sites to minors by either

requiring the use of credit card or having adult access codes.

The American Civil Liberties Union (ACLU) and the ALA filed suit shortly after this bill

was made into law. They argued that “it violated First Amendment rights because it‟s




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indecency or „patently offensive‟ provisions were vague and over broad. In July of 1996

a three judge panel ruled unanimously in favor of the ACLU and imposed a preliminary

injunction (Lavell, N/D 2004). When the justice department appealed the decision and

the case went to the Supreme Court, the injunction was upheld and it was determined

that the CDA was too vague in its attempts to define obscenity and that this could mean

prosecution of providers that offered material that could be deemed educational to

minors including sex education and art history sites. Since the Supreme Court ruled that

the CDA was unconstitutional due to the vagueness of the wording, the CDA remains

unenforceable.

The Child Online Protection Act (COPA)

The second attempt by congress to protect and restrict access of the internet to minors

was the Child Online Protection Act (COPA). This legislation attempted to define more

effectively the vagueness of the CDA by including a more precise definition of offensive

to minors. The words “with respect to minors an actual or simulated sexual act or sexualconduct, an actual or simulated normal or perverted sexual act or a lewd exhibition of

genitals or post pubescent female breasts” (Lavell, N/D 2004).

Again the ACLU challenged the law stating that COPA violated the First and Fourth

Amendments in four ways:

1) it impeded on the protected speech of adults, 2) it interfered with the First

Amendment rights of minors because it was overly prohibitive, 3) it violated the

right to send and receive communication anonymously, which would result in

self censorship and 4) it was unconstitutionally vague (Lavell, N/D 2004)

Again, the courts imposed an injunction on COPA due to the results upheld in the case

of the CDA. After many back and forth statements about the legality and constitutionality

of the COPA, finally in 2003, the Third Circuit‟s decision invalidated COPA as it

“restricted substantial amounts of lawful speech and therefore infringed upon the First

Amendment rights of adults” (Lavell, N/D 2004)

Children’s Internet Protection Act (CIPA)

Introduction and Passage:

In 1999, Sen. McCain introduced a bill requiring public and school libraries and which

receive certain federal funds to use part of those funds the purchase internet filtering

programs to filter out material that could be harmful to minors. In 2000, this law was

ratified by both the House and Senate and in 2001 the Federal Communications

Commission issued rules the implement the law.




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CIPA Requirements:

Libraries and schools must meet certain requirements in order to receive E-rate funding,

the discount program for obtaining state of the art technologies and services. In order

to continue receiving these discounts, libraries and schools are required to implement

internet filtering programs on computers used by minors to block or filter out materials

which are deemed obscene, pornographic or harmful to minors. In addition to the

filtering system, libraries and schools have to adopt and implement internet policies

addressing all forms of access by minors including chat rooms, email, and hacking.

Schools have an additional requirement to enact policies for monitoring online activities

of minors.

ALA and ACLU Challenges

In 2001, the American Library Association voted to legally challenge CIPA on grounds

that it was unconstitutional to block access to constitutionally allowed information on theinternet. Working with the American Civil Liberties Union (ACLU), a challenge was filed

and upheld by the Court of Appeals for the Eastern District of Pennsylvania. In its

decision in 2002, the Court of Appeals noted that it would be a violation of the First

Amendment because in order for libraries to comply with CIPA the filters would be

blocking constitutionally protected speech.

The decision was appealed to the United States Supreme Court in 2003 with the court

upholding the law. The Solicitor General had argued that CIPA would not block

constitutionally allowed speech because the filter could be unblocked by an authorized

person in the library at the request of an adult. The Court agreed with this argumentand stated that filtered sites could be either unblocked or the filter disabled with ease at

the request of an adult patron.

Conclusion

Is CIPA Ethically Sound or Not?

Velazquez, et al provides one with five questions to determine if an issue/problem/law is

ethical. These questions are as follows:

“What benefits and what harms will each course of action produce, and which

alternative will lead to the best overall consequences? What moral rights do the

affected parties have, and which course of action best respects those rights?

Which course of action treats everyone the same, except where there is a morally

justifiable reason not to, and does not show favoritism or discrimination? Which




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course of action advances the common good? Which course of action develops

moral virtues?” (Velasques)

Libraries and library organizations are almost universally in agreement in their dislike

and wish to have this law repealed. The filters have long been a bone of contention

because they block out reasonable educational sites in addition to what the maker ofthe filter considers unacceptable for minors. More importantly, does the government

have the right to decide what a child accesses on the internet? Although libraries have

expressed dislike for the law, it is up to parents to show that the law isn‟t necessary.

Ultimately, the parent has the final say on what his/her child accesses and why. Does

CIPA treat everyone the same? Obviously it does not because it focuses on children.

The common good is another question. Who decides the common good? Is it the

government, the parents, the library, or a combination of them all? As for the moral

virtues, those should be developed in the home. The moral virtues that one person has

developed for their children may not be those of their neighbor‟s, but that doesn‟t make

the neighbor‟s virtues immoral.

In the end, the person who is in charge of the child, hopefully the parent, should have

the ultimate decision on the internet access for their child.

The authors may not have completely answered the questions they posed in the

beginning of this paper, however much knowledge was gained about First Amendment

rights as pertaining to minors. The authors believe that the issue with censorship and

the internet lies more in the filters that mediate what material minors can or cannot

access and not the CIPA law itself. Therefore, the authors will continue to search for

answers to these questions in the next paper written.




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Children's Internet Protection Act Study of Technology Protection Measures. (2003, August).

www.ntia.doc.gov.Retrieved February 7, 2010, from National Telecommunicaitons and Information

Administration: http://ntia.doc.gov/ntiahome/ntiageneral/cipa2003/cipareport

Dobija, J. (S 2007). The First Amendment Needs New Clothes. American Librarian, 38 no 8 , 50-53.

FCC Consumer Facts, Children’s Internet Protection . (n.d.). Consumer Facts. Retrieved February 7, 2010,

from FCC: http://www.fcc.gov/cgb/consumerfacts/cipa.html

Kelsey, M. (N/D 2007). Are We Lucky for the First Amendment? A Brief History of Student's Right to

Read. Knowledge Quest, 36, no2 , 26-29.

Lavell, A. L. (N/D 2004). In the Name of In(ternet)decency Laws Attempting to Regulate Content Deemed

Harmful to Children. Public Librarians , 353-359.

Library Bill of Rights. (1996, January 23). Library Bill of Rights. Retrieved February 15, 2010, from ALA:

Http://www.ala.org/aboutala/offices/oif/statementspols/statementsif/librarybillofrights.cfm

Minors Rights to Recieve Informaiton Under the First Amendment. (2004, February 2). Minors' Rights to

Receive Information Under the First Amendment. Retrieved February 15, 2010, from ALA:

http:///www.ala.org/ala/aboutala/offices/issuresrelatedlinks/minorsrights.cfm

Velasques, M. A. (n.d.). Thinking Ethically: A Framework for Moral Decision Making. Retrieved February

2010, from Marllula Center for Applied Ethics:

http://www.scu.edu/ethics/publicatins/iie/v7n1/thinking.html

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