A Recent Supreme Court Decision Allowing the Government to Force Public Libraries to Filter Users' Internet Access Is Less Significant Than It Might At First Appear

By JULIE HILDEN
julhil@aol.com
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Tuesday, Jul. 01, 2003

On June 23, the Supreme Court issued what had been anticipated to be a major First Amendment decision, United States v. American Library Ass'n. Inc.. There, the Court held, 6-3, that the First Amendment does not prohibit Congress from forcing public libraries - as a condition of receiving federal funding - to use software filters to control what patrons access online via library computers.

At first glance, the American Library Ass'n decision appears to be a major defeat for free speech, for it means the filters will stay in place - with the blessing of two-thirds of the Supreme Court. It also might seem to be a repudiation of the longstanding "unconstitutional conditions" doctrine - which holds that Congress can't force the states to violate rights in order to get funds.

But closer inspection reveals that in fact, the decision is relatively limited. In part for that reason, it is probably not a good predictor of what the Court will do in future First Amendment cases.

Moreover, closely read, the various opinions in the case do not actually abolish the unconstitutional conditions doctrine. At most, they suggest that the Court may someday adopt a more modified, moderate version of it.

The Filters' Problems, and The Decision to Block Legal Materials

The filters were installed to prevent patrons, both adult and minor, from accessing obscene or pornographic materials online. But patrons - and, indeed, libraries themselves - complained that the filters violated their free speech rights, for several reasons.

Having explained these reasons at greater length in an earlier column, I will only briefly summarize them here. First, while obscenity is illegal, pornography is not, when viewed by adults. These federally-funded public libraries were thus denying their patrons access to legal materials simply because they disapproved of their viewing them. And there is a First Amendment right not only to write and speak, but to read without censorship, as well. The filters arguably infringed that right.

Second, the filters did an extremely poor job of selecting out obscenity and pornography alone. They "underblocked" - defeating their purpose by leaving some of the materials they targeted fully accessible. And they also "overblocked" - blocking users' access to, for instance, educational materials about human sexuality.

Such materials, of course, are not only legal, but also valuable and informational. Indeed, they are exactly the type that public libraries could historically be counted on to provide. Yet because of the filters, users were often blocked from finding them in the majestic public library the Internet itself provides.

The Government's Concession That Filters Are Optional For Users Makes the Case a Minor One

The stakes of the American Library Ass'n case were significantly lowered when the government promised, in the course of litigation, that the libraries could, and would, remove the filters if users asked them to do so. It also promised that users would not have to explain why they were making the request.

Ironically, that concession may actually have promoted free speech - at least compared to the prior situation in which filters were in place, and users might not have known they could ask for their removal.

Indeed, I would advise anyone who believes in the First Amendment to march into his or her public library as soon as possible, ask for any such filters to be disabled, and then search the Internet. After all, it's much less embarrassing if everyone does it as a matter of free speech principle - instead of a few people doing it because their favorite porn site (or sexual health site, for that matter) won't appear on the screen.

Plainly, the "unblocking option" concession by the government softened the conflict at the heart of the case - between users who want to access certain content, and a government that requires federally-funded libraries to filter what the users can see or read. A user request will obviate that conflict.

In the end, then, filters are only a "default rule": They'll be there only unless and until you ask for their removal. That's not unusual: the law is full of "opt in/opt out" situations, in areas ranging from cable TV regulations to class action settlement agreements. And none of them is ever as serious as a situation in which the writer or reader has no option whatsoever - not even the option to opt.

The Plurality Opinion Allowing Filters Is Bad News, But It's Also Old News

Meanwhile, not only did the "unblocking" option significantly vitiate the decision's import, but the plurality opinion in favor of allowing filters to be imposed also did not reach as far as it might have. Instead, it merely reiterated a principle that the Court had affirmed only twelve years before, and thus was not likely to abandon.

The four-Justice plurality opinion was written by Chief Justice Rehnquist, and joined by Justices O'Connor, Scalia, and Thomas. It primarily rested upon this simple principle: "Congress has wide latitude to attach conditions to the receipt of federal assistance in order to further its policy objectives." And according to the Court, such objectives certainly could include helping public libraries fulfill their "worthy missions of facilitating learning and educational enrichment," rather than, say, providing free porn.

In adhering to this principle, the four Justices who joined the plurality opinion rejected the "unconstitutional conditions" doctrine. That doctrine - which came of age in the 1970's and has been on the decline ever since - suggests that even if Congress generally has the power to impose conditions on the receipt of federal funding, specific conditions that violate Constitutional rights are off limits.

That decline of the unconstitutional conditions doctrine is a shame. But it's also old news. After all, the doctrine was plainly already an endangered species by 1991, when the Court issued its decision in Rust v. Sullivan.

Finally, it's important to remember that the four-Justice plurality was just that: Four Justices, not five. And both Justice Kennedy and Justice Breyer concurred in only the plurality's judgment - not its opinion, and thus, not its reasoning.

Significantly, this means that the bell still may not have tolled for the unconstitutional conditions doctrine. It is not inconceivable that the Court (minus the four plurality Justices, of course) could revive the failing doctrine in the future.

Justice Kennedy's Concurrence: Ensuring Unblocking Will Be Prompt

In concurring with the plurality's result - and upholding the filters - Justices Kennedy and Breyer each went their own way. And, each chose an interesting way to go. Both Justices are, at times, strong First Amendment proponents. But both also have somewhat idiosyncratic approaches to free speech doctrines, as this case illustrated.

Justice Kennedy's concurrence focused on the point I have stressed above: Given the ability of users to request unblocking, Kennedy contended, "there is little to this case."

Kennedy also wisely suggested that if it turned out that, in practice, unblocking was slow or difficult, and impeded users' computer access, then patrons would not be prevented from suing the government, or perhaps the libraries, a second time. (Thus, if you actually go down to your federally-funded public library and demand unblocking, and they either refuse or make you wait a long time, under Kennedy's theory you may just have become a potential First Amendment plaintiff.)

Kennedy plainly won't stand for slow responses to unblocking requests - and he probably has four other Justices behind him on that (Breyer and the three dissenters: Stevens, Ginsburg, and Souter, who wrote a particularly eloquent defense drawing on history as well as law.). So libraries that don't hop to it when patrons ask for unblocking may be in serious trouble - and may quickly find themselves in court.

Justice Breyer's Concurrence: Advocating an Intermediate Level of Scrutiny

Like Justice Kennedy's concurrence, Justice Breyer's concurrence also relies heavily on the user's ability to request unblocking - deeming it an "important exception" to the statute. But Justice Breyer's concurrence also potentially has wider significance, for it takes the opportunity to propose an intermediate First Amendment doctrine that I will refer to, in this column, as "unconstitutional conditions lite."

Under Breyer's theory, "a form of heightened scrutiny," short of "strict scrutiny," would sometimes apply to certain Congressional statutes - those that "directly restrict[ed] the public's receipt of information," and affected "critically important sources of information," such as the filters partially blocking access on the Internet.

Unlike the original unconstitutional conditions doctrine, Breyer's "unconstitutional conditions lite" would apply only a medium level of scrutiny. Also, it would not apply to all laws that forced the First-Amendment-rights-for-federal-funding trade, but only to the set of particularly troubling laws Breyer describes.

In Breyer's view, the statutory provisions at issue in United States v. American Library Ass'n. Inc. would survive this medium level of scrutiny for several reasons. First, as noted above, they allow unblocking. Second, there were apparently no superior filters available that were free from the overblocking and underblocking problems that plagued the filters the libraries used.

And finally, Breyer pointed out, the provisions that mandated the filters serve the legitimate objective of limiting access to illegal obscene material; illegal child pornography; and pornography that, while legal, is not suitable for minors - who might gain access to it if filters were not employed.

The Future: A World In Which Breyer's Standard May Yet Win the Day

The only real news in the American Library Ass'n case, in short, is Justice Breyer's proposed new standard for certain instances in which federal statutes condition funding on free speech restrictions. And this news might turn into big news - if other Justices agree with this standard in the future.

Might they do so? All it would take to forge a new majority would be Breyer himself, the American Library Ass'n dissenters (Souter, Ginsburg, and Stevens), and Justice Kennedy. And for several reasons, this coalition someday might actually coalesce.

First, Breyer's own application of the test, to permit the challenged filters, should reassure the still-conservative Justice Kennedy that if he signs onto his intermediate scrutiny test, he won't be compelled to constantly strike down Congress's funding conditions. Such moderate scrutiny would allow the Justices to retain a significant amount of discretion in deciding when they would, and would not, strike down such conditions.

Second, the Court could arguably adopt Breyer's test without overruling Rust v. Sullivan. For a Justice like Kennedy, who cares about stare decisis, that matters a lot.

Why might Rust survive Breyer's test? First, Rust allowed a gag rule that said that to receive funds, family planning groups could not discuss the abortion alternative. The Court upheld it. The traditional unconstitutional conditions doctrine might have spelled its death. But Breyer's unconstitutional conditions lite might let the rule stand - for its primary worry is access to information, not the right to speak.

Breyer's test would apparently apply only when "critical" sources of information like the Internet are at issue. Federally-funded family planning clinics are certainly an important source of information on abortion - but are they truly critical? Private clinics, nonprofits, pro-choice hotlines and, now - ironically - the Internet can offer such information as well. Thus, the abortion gag rule - as objectionable as it might be - might still pass Breyer's test, because it's not putting a monolithic wall between citizens and needed information.

Third, Breyer's "heightened scrutiny" test would also allow the Court to reasonably monitor "Your Money or Your Free Speech" scenarios in which Congress forces states to harm free speech, or else lose federal funds. Even thought the Court might not want to strike down every such condition, it probably does not want to cede power in this area entirely.

The War on Terrorism May Well Lead to Unconstitutional Conditions

After all, particularly in the age of the war on terrorism, such scenarios become all the more concerning. For instance, suppose Congress began conditioning states' federal funding on their willingness to ban cybercafes - on the theory that by offering anonymity, the cafes facilitate terrorism. Presumably, under Breyer's logic, the medium level of scrutiny of "unconstitutional conditions lite" would, at a minimum, apply.

Yet that doesn't mean cybercafes would survive: Are they a "critical" information source ? Only for people who cannot access computers at home, or at libraries, it seems. And it's not clear whether the Court would find that access that is critical only for some, to be truly "critical."

Ideally, in my opinion, the Court should return to the classic unconstitutional conditions doctrine. But short of that, the "unconstitutional conditions lite" approach Breyer advocates is not a bad compromise solution.

The Court should therefore certainly consider Breyer's alternative test before it gives up all power in this area - and consequently loses a large part of its ability to protect First Amendment rights from government incursions. .


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. She was a clerk for now-Justice Stephen G. Breyer in 1992-93, when he was the Chief Judge of the U.S. Court of Appeals for the First Circuit. Her first novel, 3, is forthcoming from Plume Books in the U.S., and Bantam in the U.K. on July 29, 2003. It will also be published, in French translation, by Actes Sud. Kirkus Reviews wrote about 3, "When tragedy intervenes, it's no surprise but shocking nonetheless -- testament to Hilden's rather uncanny abilities." Hilden maintains a website at www.juliehilden.com that include MP3 and text downloads of the novel's first chapter.

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