Monday, March 03, 2003

S.Ct. prediction

On Wednesday, the Supreme Court will hear arguments in US v. American Library Ass'n. The case is about the Children's Internet Protection Act (who could possibly oppose protecting children??), by which the Congress decreed that local libraries would be eligible for certain federal benefits (lower telecom rates on internet access, and certain grants) only if they installed internet-filtering mechanisms to keep people from looking at pictures that are "obscene", are "child pornography," or are (if the internet-user is a minor) "harmful to minors". See subsection (f) of this section of the U.S. Code.

This is not the Supreme Court's first foray into Congressional efforts to combat internet porn. For earlier decisions, see Reno v. ACLU (1997) (holding unconstitutional two provisions of the Communications Decency Act of 1996); Ashcroft v. ACLU (2002) (not deciding the constitutionality of the Child Online Protection Act, but keeping in place the injunction against enforcement of the law until the matter is finally decided).

Sometimes, when the Congress knows that it's pushing the constitutional envelope on a hot-button issue, it provides for a special procedure to test the constitutionality of the statute: a three-judge panel at the trial-court level, followed immediately by review in the Supreme Court. That's what they did here. The three-judge District Court held the law unconstitutional under the First Amendment (see opinion here), essentially on the theory that it forced (or, rather, cajoled by monetary pressure) local libraries to violate the First Amendment rights of their patrons. After all, we all know that internet filters are lousy technologically, in that they block lots of stuff that's not obscene (not only very useful non-obscene information that has to do with sex, but also various popular and definitely non-obscene blogs).

You can read the Government's brief to the Supreme Court here. The Government argues, first, that the use of an internet filter by a library isn't really materially different from a library's decision as to what books to buy and put on the shelves – just a "collection acquisition" decision that's not subject to any real searching First Amendment scrutiny. And the Government argues, second, that even if this is subject to any searching level of First Amendment scrutiny, it passes --- given (the Government says) the important interests served by the law, and the fact that it allows library officials to override the filters if a library patron's got a legitimate non-prurient reason to look at the blocked stuff. I am, of course, severely summarizing and paraphrasing; read the brief if you want the detail.

What will the Supreme Court do? I start with the hunch that if there were an affirmance, it would probably only be 5-4, with a combination that's not quite like the "usual" (e.g. Bush v. Gore) 5-4. In other words, the libraries win only if they keep Justices Ginsburg, Kennedy, Souter, Stevens & Thomas, who have on occasion banded together in First Amendment cases. But I don't think that group can hold together on this one; at least one of them (and perhaps many more) will say either that internet filtering by libraries is not much different from deciding what books to buy (an argument that is unconvincing to me) or that the law gives libraries and their patrons enough wiggle room so as to avoid running afoul of the First Amendment.

So, bottom line, REVERSE: no more dirty pictures at the public library for you! Thanks very much to the for-now-anonymous reader who talked with me about this by email so that I would at least have some idea what I was talking about.

posted by sam 1:56 PM 0 comments

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