Federal Regulations and Guidance for CIPA and the Neighborhood Act

“Most attempts at suppression rest on a denial of the fundamental premise of democracy: that the ordinary citizen, by exercising critical judgment, will accept the good and reject the bad. The censors, public and private, assume that they should determine what is good and what
is bad for their fellow citizens.”—The Freedom to Read Statement

"CPPA, COPA, CIPA: Which One Is Which?." American Library Association. 2004.
18 May, 2004  http://www.ala.org/ala/oif/ifissues/issuesrelatedlinks/cppacopacipa.htm>

Brief History of CIPA

The three-judge panel sitting in the Eastern District of Pennsylvania issued a decision on May 31, 2002, holding that the CIPA statute is facially unconstitutional and violates the First Amendment. They held that “we are constrained to conclude that the library plaintiffs must prevail in their contention that CIPA requires them to violate the First Amendment rights of their patrons, and accordingly is facially invalid”; the three-judge panel ruled Sections 1712(a)(2) and 1721(b) of the Children's Internet Protection Act to be facially invalid under the First Amendment and permanently enjoined the government from enforcing those provisions.

Because the three-judge panel permanently enjoined the FCC and LSTA from withholding funds from public libraries who have chosen not to install filters on all terminals, public libraries thus are not required to install filters on their computers in order to receive funds from either agency.

The opinion was unanimous. The opinion was written by Chief Judge Becker of the Third Circuit and joined by U.S. District Judges Fullam and Bartle.

The Court held that the CIPA statute is unconstitutional because the mandated use of filtering on all computers will result in blocked access to substantial amounts of constitutionally protected speech.

The Court found that filters both overblock (block access to protected speech) and underblock (allow access to illegal or unconstitutional speech).

The Court held that less restrictive alternatives exist to allow public libraries to protect children from material that is illegal for them to access. The Court found that public libraries can—and indeed that many do—use the following less restrictive alternatives:

1. Filters offered as a choice for families to use for their own children at the public library;
2. Education and Internet training courses;
3. Enforcement of Internet Use policies by library staff; and
4. Placement of terminals, use of privacy screens or utilization of recessed monitors.

According to a Jenner & Block memorandum dated June 18, 2002, the three-judge panel in the CIPA case held that the FCC and IMLS cannot withhold funds on the ground that a public library has failed to install mandatory filters on every computer. The Court held that “[b]ecause of the inherent limitations in filtering technology, public libraries can never comply with CIPA without blocking access to a substantial amount of speech that is both constitutionally protected and fails to meet even the filtering companies’ own blocking criteria.” While this decision is directly binding only on the agencies and is not a directive to any particular library, the factual findings and legal conclusions of the Court may serve as useful precedents for other lower courts. ALA thus urges any library using mandatory filtering software to consult with legal counsel to reevaluate their Internet Use Policy and assess the risk of future litigation.

The Justice Department, acting on behalf of the Federal Communications Commission and the U.S. Institute of Museum and Library Sciences, formally notified the Supreme Court on June 20 that it would appeal this ruling.

"CPPA, COPA, CIPA: Which One Is Which?." American Library Association. 2004.
18 May, 2004  http://www.ala.org/ala/oif/ifissues/issuesrelatedlinks/cppacopacipa.htm>