U.S. House of Representatives: Committee on Energy and Commerce, RepublicansPrepared Witness Testimony: Johnson, Marvin

Subcommittee on Telecommunications and the Internet
April 4, 2001
10:00 AM
2322 Rayburn House Office Building

Mr. Marvin Johnson
Legislative Counsel
American Civil Liberties Union
122 Maryland Vaneue, NE
Washington, DC, 20002

I am Marvin J. Johnson,Legislative Counsel for the American Civil Liberties Union.

I appreciate theopportunity to testify before you today about the Children's InternetProtection Act (CHIPA) on behalf of the American Civil Liberties Union. TheACLU is a nation-wide, non-partisan organization of more than 275,000 membersdevoted to protecting the principles of freedom set forth in the Bill of Rightsand the Constitution.

The hearingtoday is to determine the effectiveness of the Children's Internet ProtectionAct. CHIPA was signed into law on December 21, 2000. It will become effectiveon April 20, 2001. §1712(b) (tobe codified at 20 U.S.C. §9134); §1721(h) (to becodified at 47 U.S.C. §254(h)). CHIPA requires that public libraries receivinge-rate discounts or funds under the Library Services Technology Act (LSTA)implement and enforce technology protection measures to block obscenity, childpornography and material harmful to minors.

Under thee-rate provisions, libraries that do not timely certify their compliance becomeineligible for further e-rate discounts. Where the library knowingly fails toinsure compliance, it may be required to reimburse any discounts received forthe period covered by the certification. Libraries receiving LSTA funds are notrequired to reimburse the government in the event they fail to comply withCHIPA.

CHIPA'srestrictions are not limited to library Internet access supported only by thefederal e-rate and LSTA programs. Both the e-rate restrictions in Section1721(b) and the LSTA restrictions in Section 1712 require libraries to certifythat technology protection measures are in place on "any of itscomputers with Internet access" and "during any use of suchcomputers." §1721(b) (to be codified at 47 U.S.C. §254(h)(6)(C)(i)-(ii));§1712.15 (to be codified at 20 U.S.C. §9134(f)(1)(B)(i)-(ii)) [Emphasis added].A library subject to CHIPA must install and enforce the operation of technologyprotection measures on all of its computers with Internet access even if thelibrary purchased the computers or paid for Internet access with money that isnot from federal programs.

While CHIPA is not yet ineffect, it will be ineffective. There is no reliable way to block out allobjectionable material, so any technological protection measure will beineffective in removing that material from view. Furthermore, all of thecurrent technological protection measures block significant amounts of materialthat deserve constitutional protection. This overbreadth is one of the reasons CHIPA is unconstitutional.

CHIPA will be ineffective because noavailable technology can implement its mandate.

CHIPA defines a "technologyprotection measure" as "a specific technology that blocks or filters Internetaccess to the material covered by a certification." 57 U.S.C. §254(h)(6)(H).CHIPA requires blocking of material that is obscene, child pornography, orharmful to minors. It is not possible to create a technology protection measurethat blocks access only to material that is "obscene," "child pornography," or"harmful to minors" as defined by CHIPA, or that blocks access to all materialthat meets those definitions.

In order to understand the reasonthese technological protection measures are destined to fail, one mustunderstand the nature of the technology.

The World Wide Web is now estimated tocontain over 1.5 billion pages. It continues to grow and change at a geometricrate. Thus, there is a massive amount of information to catalog, and thatinformation continues to change and grow every day.

Private companies produce technologythat is designed to block access to particular content on the web. Thetechnology is commonly referred to as "blocking software" or "blockingprograms." These programs are computer software that is designed to blockcontent on the Internet that would otherwise be available to all Internetusers.

Vendors of this software establishcriteria to identify specific categories of speech on the Internet. They thenconfigure the software to block web pages containing those categories ofspeech. Some programs block as few as six categories, while others block up totwenty-nine or more categories. These categories may include hate speech,criminal activity, sexually explicit speech, "adult" speech, violent speech orspeech using specific disfavored words. Some of the blocked categories expressdisapproval of a particular viewpoint, such as a category that blocks allinformation about "alternative" lifestyles including homosexuality.

The terms "obscenity," "childpornography" and "harmful to minors" as used in CHIPA are legal terms. None ofthe current vendors of blocking technology claim to block categories that meetthese legal definitions, nor do they employ attorneys or judges to make thosedeterminations. Leaving decisions of what constitutes obscenity, childpornography and material harmful to minors up to legally untrained personsleads to more information being blocked than is legally permissible.

Once blocking program vendorsestablish the criteria for information they intend to block, they establish amethod of identifying the web pages that meet that criteria. Generally, theyconduct automated searches based on words or strings of words, similar tosearches done by standard search engines. Web pages are usually blocked intheir entirety if any content on the web page fits the vendors' contentcategories, regardless of whether the content on the page is textual, visual,or both.

No technology currently availableallows vendors to conduct automated searches for visual images that fit theircontent categories, or that are communicated through email, chat, or onlinediscussion groups. As a result, any implementation of this technology isunder-inclusive, allowing access to material that CHIPA intends to block.

After using this technology toidentify web sites to block, the blocking program vendors add these pages to amaster list of web pages to block ("blocked sites list"). Some vendors claim tohave employees review individual web sites before adding them to the blockedsite list. These employees, however, are not lawyers or judges, and receive nolegal training. There is a great deal of employee turnover in these jobs. As aresult, untrained employees are making what are essentially legal decisions andexcluding constitutionally protected material.

An operational blocking program thenblocks users from accessing web pages on the program's blocked sites list.Vendors normally treat their blocked sites list as a trade secret, and refuseto reveal this information to their customers, prospective customers, or to thepublic.

Two blocking techniques canbe used by program vendors to block access to email, chat, and onlinediscussion groups. First, the blocking programs may block access to all email,chat, and online discussion groups. Second, the programs may selectively blockout particular words communicated through email, chat, or discussion groups.For example, the programs may replace supposedly objectionable words with "xxx"regardless of the context in which the word was used. Hence Marc Rotenberg's[i]blocked version of the First Amendment: "Congress shall make no law abridgingthe freedom of sXXXch, or the right of the people peaceably to XXXemble, and topeXXXion the government for a redress of grievances."

Because of the way these blockingprograms work, they inherently rely upon the exercise of subjective humanjudgment by the vendor to decide what is objectionable and what is not. Thevendor, rather than librarians, other government officials, adult patrons, or parentsdecide what gets placed on the "blocked sites" list.

Furthermore, because of the massiveamounts of information available on the web, and its constantly changingcontent, no company can keep up with all the information or changes. It isestimated that even the most sophisticated search techniques find less than 20%of the web. Therefore, the idea that blocking technology will block out all ofthe objectionable information on the web is an impossibility. Although blockingprogram vendors provide updates to their blocked sites list, it is impossiblefor them to find all of the content on the Internet that meets their criteria,or to keep up with the rapidly increasing and changing content available.

In March, 2001, Consumer Reportstested blocking software, and found that most failed to block at least 20% ofobjectionable material. Consumer Reports, March 1, 2001, "Digital Chaperonesfor kids" found at http://www.consumerreports.org/Special/ConsumerInterest/Reports/0103fil0.html

Not only does blocking software failto block all material meeting the legal definitions of "obscenity," "childpornography" and material "harmful to minors," it also blocks much materialwhich is not objectionable, and protected under the First Amendment. Because ofthis overbreadth, CHIPA will be found unconstitutional, and therefore,ineffective.

The federal government and others haverepeatedly documented the failures and flaws of blocking programs. The UnitedStates Attorney General has said that blocking programs inescapably fail toblock objectionable speech because they are unable to screen for images. Brieffor the Appellants, Reno v. ACLU, No. 96-511 (January 1997) at 40-41.Congress itself has repeatedly noted these flaws. A House report found thatsuch software is "not the preferred solution" because of the risk that"protected, harmless, or innocent speech would be accidentally orinappropriately blocked." H.R. Rep. No. 105-775 (1998) at 19.

In October 1998, Congress appointedthe Child Online Protection Act Commission ("COPA Commission"), and charged itwith "identify[ing] technological or other methods that will help reduce accessby minors to material that is harmful to minors on the Internet." In October2000, the Commission reported that blocking "technology raises First Amendmentconcerns because of its potential to be over-inclusive in blocking content.Concerns are increased because the extent of blocking is often unclear and notdisclosed, and may not be based on parental choices." The Commissionspecifically did not recommend any government-imposed mandatory use of blockingtechnologies.

On October 23, 2000, Peacefire[ii]issued a report of blocking technology which found error rates anywhere from20% to 80%. Error rates were based on sites being blocked as "pornography" whenthey were, in fact, not pornographic. Study of Average Error Rates forCensorware Programs, October 23, 2000, found at http://www.peacefire.org/error-rates/

On November 7, 2000,Peacefire issued its report Blind Ballots: Web Sites of U.S. PoliticalCandidates Censored by Censorware. (http://www.peacefire.org/blind-ballots/).The report found numerous political candidates' sites were blocked by thissoftware. Jeffery Pollock, Republican candidate for Congress in Oregon's ThirdCongressional District, had originally favored blocking software. After hearingthat his site was one of those blocked, he reversed his position. The site ofCongressman Markey, the Ranking Minority member of this subcommittee was alsoblocked by one of the programs that characterized his site as "Hate, Illegal, Pornography,and/or Violence."

Proponents of blocking often claimthat even if some web sites are blocked, there are others available on thetopic that may be unblocked so the information will ultimately be available.This position makes little sense, particularly when discussing candidate websites. Should a Republican candidate be soothed by the fact that his blockedviews may be found and discussed at his Democratic opponent's unblocked website?

On December 12, 2000, Peacefirepublished a report demonstrating that sites of human rights groups were beingblocked by this software. Amnesty Intercepted: Global human rights groupsblocked by Web censoring software, December 12, 2000, found at: http://www.peacefire.org/amnesty-intercepted/

Consumer Reports in March 2001 foundthat blocking software varied from 20% to 63% in its over-blocking.

Despite protestations from blockingsoftware supporters that instances of over-blocking are all "old" examplesremedied by newer versions, these examples are all recent. The flaws ofblocking programs are not a matter of individual flaws in individual products.These flaws are inevitable given the task and the limitations of thetechnology.

As a result of these problems,blocking software fails to protect because it cannot block all material thatmeets the CHIPA criteria. Furthermore, it blocks a huge amount of informationthat should not be considered objectionable, and is clearly protected under theFirst Amendment.

While CHIPA purports to protect minorsby blocking their access to the Internet, it also blocks adult access. Bysweeping so broadly, CHIPA violates the Constitution.

Section1721(b) of CHIPA requires public libraries that participate in the federale-rate program to certify to the FCC that they are "(i) enforcing a policy ofInternet safety that includes the operation of a technology protection measurewith respect to computers with Internet access that protects against accessthrough such computers to visual depictions that are (I) obscene; or (II) childpornography; and (ii) is enforcing the operation of such technology measureduring any use of such computers." §1721 (to be codified at 47 U.S.C.§254 (h)(6)(C)). [Emphasis added.]

Section1712 of CHIPA applies to libraries that do not receive the e-rate discount butreceive funds pursuant to 20 U.S.C. §9134(b), the Library Services andTechnology Act (LSTA), "to purchase computers used to access the Internet, orto pay for direct costs associated with accessing the Internet." §1712 (to becodified at 20 U.S.C. 9134(f)(1)).

Section 1712 requires the same installation andenforcement of technology protection measures as is required by Section 1721(b).§1712 (to be codified at 20 U.S.C. 9134(f)(1)(A) and (B)).

Thus, whileCHIPA is commonly referred to as a "child protection measure," it goes furtherand operates to block adult access as well. In doing so, CHIPA will follow theCDA and COPA along the trail of unconstitutional attempts to censor theInternet.

CHIPA Further Accentuates the Digital Divide

CHIPA willhave little effect on the rich. They can afford their own computers withunfiltered access. The poor who have to rely upon library access to perform jobsearches, school homework, and general research are the ones who will bepenalized by CHIPA.

Publiclibraries play a crucial role in affording access to the economic and socialbenefits of the Internet to those who do not have computers at home. Librariesassure that advanced information services are universally available to allsegments of the American population on an equitable basis.

For manypeople who cannot afford a personal computer or network connections, Internetaccess at public libraries may be their only means of accessing the Internet.Minorities, low-income persons, the less educated, children of single-parenthouseholds, and persons who reside in rural areas are less likely than othersto have home Internet access. For example, Whites are more likely to haveaccess to the Internet from home than Blacks or Latinos have from anylocation. Black and Latino households are less than half as likely to have homeInternet access as White households.[iii]According to the National Telecommunications and Information Administration,this "digital divide" is growing. CHIPA will only worsen the situation withthese unintended consequences.

CHIPA Overrides Local Control and Decision-making

Manycommunities spent a lot of time studying the issue of Internet access and howto deal with it in their public libraries. Kalamazoo, Michigan, Holland,Michigan, and Multnomah County Public Library are a few such examples. In eachcase, they decided blocking software was inappropriate for their libraries, andthey opted for other, less restrictive measures to protect their children.

CHIPAignores and overrides those local decisions, instead opting for a "one sizefits all" scheme that is unworkable and unconstitutional.

CHIPAIs Unconstitutional Because it Limits Free Speech

CHIPAwill further be ineffective to protect children because it will be stricken asunconstitutional.

Asyou know, on March 20, 2001, the ACLU and the American Library Association eachfiled a lawsuit in the Eastern District of Pennsylvania against the Children'sInternet Protection Act (CHIPA). Under the Act, any challenge will be heard bya panel of three judges, and appeals from any decision of the panel will godirectly to the United States Supreme Court. The three judges were justrecently appointed.

The First Amendment Applies to the Internet

In Reno I,[iv]a unanimous Supreme Court held that the First Amendment applies to theInternet. The Court found the Internet should be afforded the highestprotection under the First Amendment, equivalent to that provided books,newspapers, and magazines.[v]Therefore, any attempted regulation of Internet speech such as CHIPA isconstitutionally suspect.

The First Amendment includes the rightto receive information as well as to speak.

While the First Amendmentdiscusses the freedom of speech, the Supreme Court has made it clear that italso encompasses the fundamental right to receive information.[vi]In Reno I, the Supreme Courtconfirmed that the right to receive information applies without qualificationto expression on the Internet.[vii]Thus, attempts such as CHIPA to restrict information affect the constitutionalrights not only of the speaker, but the recipient as well. For example,blocking a web site on safe sex violates the rights of the web site operator(the speaker) but also the rights of the one who wishes to review that material(the recipient).

CHIPAIs a Content-Based Restriction on Speech That Fails the Strict Scrutiny Test

CHIPA purports to restrictspeech based on its content (obscenity, child pornography, and material harmfulto minors). Additionally, many blocking software vendors block sites they findpolitically objectionable, for example, sites that discuss or condemnhomosexuality. "Content-based regulations are presumptively invalid."[viii]In order to overcome the presumption of unconstitutionality, content-basedrestrictions must meet the strict scrutiny standard[ix]and survive an exacting test. The strict scrutiny test requires that thechallenged statute or regulation is necessary to serve a compellinggovernmental interest, and is narrowly drawn to achieve that end.[x]"It is not enough to show that the Government's ends are compelling; the meansmust be carefully tailored to achieve those ends."[xi]

Under the strict scrutinyanalysis, the government has the burden of establishing that a regulation isthe least restrictive means and narrowly tailored to its objective.[xii]In other words, the Government is not allowed to use a nuclear bomb when asmall side arm would suffice.

Government regulation of theInternet often fails because it attempts to "burn the house to roast the pig."[xiii]For example, in Reno, the Court noted

"[we] are persuaded thatthe CDA lacks the precision that the First Amendment requires when a statuteregulates the content of speech. In order to deny minors access to potentiallyharmful speech, the CDA effectively suppresses a large amount of speech thatadults have a constitutional right to receive and to address to one another.That burden on adult speech is unacceptable if less restrictive alternativeswould be at least as effective in achieving the legitimate purpose that thestatute was enacted to serve."

Because there were lessrestrictive alternatives available that would be at least as effective as theCDA, the Court found the act unconstitutional.

Likethe CDA, CHIPA restricts far more speech than is targeted. As noted above, notechnology available today reliably blocks only obscenity, childpornography and material harmful to minors. Thus, a broad range of speechprotected under the First Amendment gets sidelined, while the filters alsoallow objectionable speech to get through.

In passing CHIPA, Congress failed to consider less restrictivealternatives. It also failed to heed the report of the COPA Commission whichdid not recommend mandatory blocking programs, and recommended variousless restrictive alternatives.

CHIPA IsOverbroad

Overbreadth is a test thatis used when an otherwise legitimate regulation also affects speech that maynot be lawfully restricted.

An example of anoverbroad statute appears in Reno I,where the Court reviewed the constitutionality of the Communications DecencyAct (CDA)[xiv], Congress'first attempt to regulate content on the Internet. In invalidating the CDA, theCourt noted the act's breadth was unprecedented,[xv]and that it suppressed a large amount of speech that adults have aconstitutional right to send and receive. Therefore, even though the intent maybe to protect children, a law or regulation that burdens speech which adultshave a constitutional right to receive is unconstitutional "if less restrictivealternatives would be at least as effective in achieving the Act's legitimatepurposes."[xvi]

Becausethe effect of CHIPA is to suppress more speech than is necessary to achieve thegovernment's objective, it is fatally overbroad.

CHIPA Is An Unconstitutional Prior Restraint

Under the priorrestraint doctrine, the government may not restrain protected speech withoutthe benefit of clear objective standards or adequate procedural safeguards,including provisions for administrative review, time limitations on the reviewprocess, and provisions for prompt judicial review.[xvii]

CHIPA implicitly assumes,for example, that a blocking software vendor can legitimately determine whetherexpression is unprotected by the Constitution. From a legal standpoint, thatassumption is incorrect.

In 1973, theSupreme Court in Miller v. California,[xviii]crafted the definition of obscenity still used today. Known as the Miller test, it requires that a trier offact (a judge or jury) examine the work and determine:

1. Whether "the average person, applying contemporary communitystandards" would find that the work taken as a whole, appeals to the prurientinterest;

2. Whether the work depicts or describes, in a patently offensiveway, sexual conduct specifically defined in the applicable state law; and

3. Whether the work, taken as a whole, lacks serious literary,artistic, political or scientific value.

Only if the answer to all of thesequestions is "yes" can a work be judged "obscene" and only then does it lose its protection under the First Amendment.

In order to placecertain speech into the category of obscenity, the government must initiallyprovide a series of procedural safeguards. First, there must be a statutespecifically defining the sexual conduct that may not be depicted or displayed.This requirement helps guarantee that speakers have fair notice of what isprohibited.[xix] Second,the material cannot legitimately be banned without a full adversarial trial.Finally, a jury must be available to apply the relevant "community standards"for obscenity to the challenged material.

Thefact that a school or library uses third-party software that decides what is"obscene" material exacerbates the policy's unconstitutionality. "[A] defendantcannot avoid its constitutional obligation by contracting out itsdecisionmaking to a private entity."[xx]

Mandatoryblocking policies that rely on commercial blocking software constitute priorrestraints because they "entrust all . . . blocking decisions . . . to aprivate vendor" whose standards and practices cannot be monitored by theblocking library.[xxi] Allsubstantive blocking decisions by commercial suppliers necessarily lie outsidethe control of the government; consequently, each blocking decision inherentlylacks the requisite procedural safeguards. In fact, in Mainstream Loudoun,the blocking software provider refused to provide the defendants with thecriteria it used to block sites, let alone the names of the actual sitesblocked.[xxii]Mandatory blocking policies like CHIPA thus confer unbridled discretion oncommercial software providers, allowing them to restrict accessindiscriminately and without any administrative or judicial review.

Inshort, no speech is unprotected by the Constitution until a court determines itto be so. CHIPA attempts to bypass legal requirements and thus runs afoul ofthe Constitution.

CHIPA Is Unconstitutionally Vague

It is a general principle oflaw that "laws [must] give the person of ordinary intelligence a reasonableopportunity to know what is prohibited, so that he may act accordingly."[xxiii]If a law is too vague to give this "reasonable opportunity," it is deemed voidfor vagueness. When a law interferes with the right of free speech, the courtsapply a more stringent variation of the vagueness test.[xxiv]The Supreme Court has recognized that First Amendment "freedoms are delicateand vulnerable, as well as supremely precious in our society. The threat of sanctionsmay deter their exercise almost as potently as the actual application ofsanctions. Because First Amendment freedoms need breathing space to survive,government may regulate in the area only with narrow specificity."[xxv]

In order to avoid the vice ofvagueness, the law or regulation "must provide explicit standards for those whoapply them. A vague law impermissibly delegates basic policy matters topolicemen, judges, and juries for resolution on an ad hoc and subjective basis,with the attendant dangers of arbitrary and discriminatory application."[xxvi]Therefore, the law must provide an "ascertainable standard for inclusion andexclusion."[xxvii] Whenthat standard is missing, the law unconstitutionally produces a chilling effecton speech, inducing speakers to "steer far wider of the unlawful zone" than ifthe boundaries were clearly marked.[xxviii]It forces people to conform their speech to "that which is unquestionablysafe."[xxix]

CHIPA provides that "[a]nadministrator, supervisor, or other person authorized by the certifyingauthority . . . may disable the technology protection measure concerned, duringuse by an adult, to enable access for bona fide research or other lawfulpurpose." No definition of "bona fide research or other lawful purpose" isprovided. §1721 (to be codified at 47 U.S.C. §254 (h)(6)(D)). Section 1712provides that "[a]n administrator, supervisor, or other authority may disable atechnology protection measure. to enable access for bona fide research or otherlawful purposes." §1712 (to be codified at 20 U.S.C. §9134(f)(3)). Unlikethe comparable e-rate section, this provision appears to apply to minors aswell as adults. Again, no definition is provided for "bona fide research orother lawful purpose." The phrase is left to the interpretation of eachlibrarian or staff person tasked with making that determination.

CHIPA ViolatesConstitutionally Protected Anonymity and Privacy

CHIPA requires adults (and perhaps minors in the case ofLSTA funds) to seek permission from a government official in order to obtainunblocked access. In doing so, a patron requesting such access loses his or heranonymity and privacy. The Constitution protects anonymity and privacy incommunications and the ability to receive information anonymously.[xxx]

Broadlyspeaking, the unconstitutional conditions doctrine holds that Congress may notcondition receipt of federal funds upon the waiver of a constitutional right.Under CHIPA, Congress conditions receipt of federal money (except in the caseof the e-rate) on the condition that libraries violate the First Amendment.

Duringdebates on the Children's Internet Protection Act (CHIPA), some proponentsclaimed there was no constitutional infirmity in conditioning receipt of federalmoney on acquiring and using blocking software. Even if mandatory blockingitself violated the First Amendment, it was claimed this was circumventedbecause schools and libraries only had to block if they received federal funds.Since they were under no obligation to receive those funds, there was noviolation.

TheSupreme Court's decision in LegalServices Corporation v. Velasquez[xxxi]reaffirms the long-standing principle that the government may not require thesacrifice of constitutional rights as a condition for receiving a governmentbenefit.[xxxii]In Velasquez, Congress required thatfunds distributed to the Legal Services Corporation not be used to challengeexisting welfare laws. Legal Services attorneys therefore could not representclients in welfare benefits cases if the constitutionality of the welfare lawsbecame an issue. Thus, both the attorney and the client were prohibited fromchallenging these laws; the attorney because of the funding restrictions, andthe client because they could not afford another attorney. The Court thus hadto decide "whether one of the conditions imposed by Congress on the use of LSCfunds violates the First Amendment rights of LSC grantees and their clients."The majority of the Court concluded that it did.

Whileconcluding that the government may, in certain circumstances, use funding as atool to mold speech, the Court noted "'[i]t does not follow. . .thatviewpoint-based restrictions are proper when the [government] does not itselfspeak or subsidize transmittal of a message it favors but instead expends fundsto encourage a diversity of views from private speakers.'"

Thesubsidies involved in CHIPA are made to encourage schools and libraries toconnect to the Internet. The funds thus are not intended to facilitate a specificmessage, but rather to encourage the populace to engage in the diversity ofviews that is the Internet. Also, like in Velasquez,the money was given to one entity for the benefit of a third party. In Velasquez, the money was given to LSCfor the benefit of the clients. In CHIPA, the money is given to schools andlibraries for the benefit of the patrons and students.

Thesituation in Velasquez and CHIPA isdifferent than that in National Endowmentfor the Arts v. Finley.[xxxiii]In Finley, the Court found thechallenged provision only required that the NEA take into account "decency andrespect" in making its grants. It was not a determinative factor, but one ofseveral considerations. Thus, Congress had not disallowed any particularviewpoints in subsidizing the arts.

TheCourt specifically noted the situation might be different if the NEA engaged inviewpoint discrimination:

If the NEA were to leverage its power to award subsidieson the basis of subjective criteria into a penalty on disfavored viewpoints,then we would confront a different case. We have stated that, even in theprovision of subsidies, the Government may not "aim at the suppression ofdangerous ideas, [citation omitted] and if a subsidy were "manipulated" to havea "coercive effect," then relief could be appropriate. [citation omitted][xxxiv]

Velasquezis the latest pronouncement in this area of the law. Since Congress is usingfederal money to force libraries to violate the First Amendment, Velasquezdeclares that, under these circumstances, CHIPA is unconstitutional.

Constitutional Alternatives That are Less RestrictiveMeans of Accomplishing Congress' Goal

Congress passed CHIPA with theintent to protect children. For all the reasons noted above, CHIPA isunconstitutional and will be stricken, in addition to being ineffective.

As noted above, many libraries havealready implemented options that do not involve blocking software and are atleast as effective as blocking. These options include library web sites,educational programs, and Internet Use Policies.

Many libraries have implemented theirown "home" pages to help patrons identify high-quality and useful sites. Inaddition to providing its own content, a library may provide indexes of otherlinks it has evaluated and can recommend. Cataloging and organizing thisinformation helps lead users to resources in the subject areas of interest andconsequently helps them avoid unwanted resources. Descriptions on the pages canassist users in deciding whether to visit a particular site.

The same philosophy can be applied tolibrary sites designed specifically for children. The site can provide childrenwith a safe Internet experience by visiting sites reviewed by the librarian.

Many libraries educate patrons aboutInternet use. Through education, librarians assist patrons in finding usefulinformation and avoiding unwanted information. Many public libraries offerclasses on the use of the library, the catalog, indexes and systems. In manylibraries, patrons are required to take such classes before they can use publicconnections. These classes cover the library's use policies. Topics forInternet classes often include: kinds of information and subjects which arelikely to be found on the Internet; how to construct effective, high-qualitysearch strategies taking advantage of features of directories and searchengines (truncation, Boolean searching, searching on phrases); when to usevarious kinds of search aids; how to evaluate resources found; and theadvantages of using library-approved Web sites and other sites known to collectquality resources.

Education was one of therecommendations made by the COPA Commission in its report of October 20, 2000.

Libraries also may offer classes andresources to help parents assist their children in using the Internet safelyand productively. Most reinforce the importance of parental supervision andinvolvement with children when using the Internet. Parents should teachchildren to be educated consumers of information and to talk to their parentsabout what they find online. Parents may be advised to consider settingboundaries on how much time children can be on the Net, and on the kinds ofinformation they look at. Children may also be instructed about the importanceof not giving their names, passwords, credit card numbers, or other personallyidentifying information, or arranging to meet anyone they talk to onlinewithout discussing it with their parents. A good example of these guides is theLibrarian's Guide to Cyberspace for Parents and Kids, from the American LibraryAssociation. (www.ala.org/parentspage/greatsites/safe.html)

Another method libraries use toeducate patrons about Internet use is the development of Internet Use Policies.These policies can remind users about expected use of the library and oflibrary resources in general. The American Library Association has establishedgeneral guidelines for the development of library policies.

Many libraries require patrons to signan Internet Use Policy before they can access the Internet. These policies mayexplain the diversity of information on the Internet, and point patrons to thelibrary-approved resources on the library web page. A substantial number ofpolicies discuss the decentralized, uncontrolled nature of the Internet andwarn patrons that they may encounter material they find objectionable. Thepolicy may explain that beyond the library web page, the library does notmonitor or control the information on the Internet, and that patrons use it attheir own risk. The policy may inform parents that they are responsible fordeciding what library resources are appropriate for their children. The policymay also set rules for Internet use, and can impose sanctions for violations,including losing Internet access privileges, and reporting illegal conduct tolaw enforcement authorities. In many cases, these policies are tied togetherwith educational programs.

There are numerous ways libraries canand do work with parents and children to protect children while they use theInternet. These methods are at least as effective as blocking technologywithout the side-effect of blocking much material that is constitutionallyprotected.

Protecting children is a laudablegoal. CHIPA, however, fails to protect children. No blocking mechanism orsoftware is completely effective. At the same time, CHIPA results in blocking alarge segment of constitutionally protected speech to adults as well as minors.Since there are less restrictive alternatives, CHIPA is constitutionallyinfirm.

The First Amendment is part of thefoundation of our society and a bedrock of our principles. Emasculating theFirst Amendment in the name of protecting children only teaches our childrenthat principles are elastic and suggests to them that when those principlesbecome inconvenient, they should be discarded. Such a lesson leaves a child'smoral compass spinning. "Indeed, perhaps we do the minors in this country harmif First Amendment protections, which they will with age inherit fully, arechipped away in the name of their protection."[xxxv]

Wecan, and must, protect our founding principles as well as our children. It isnot an "either-or" situation. With thoughtful consideration, both can beachieved.

Blind Ballots: Web Sites of U.S.Political Candidates Censored by Censorware, November 7, 2000 http://www.peacefire.org/blind-ballots/

Filtering Programs Block CandidateSites, November 8, 2000 (verifying results of "Blind Ballots" report onCyberPatrol) http://www.zdnet.com/zdnn/stories/news/0,4586,2651471,00.html

Amnesty Intercepted: Global human rights groups blocked byWeb censoring software, December 12, 2000 http://www.peacefire.org/amnesty-intercepted/

[i] MarcRotenberg is the Director of the Electronic Privacy Information Center (EPIC)in Washington, D.C. The quote is found at: http://www.peacefire.org/info/about-peacefire.shtml

[ii]Peacefire.org was created in August 1996 to represent the interests of peopleunder 18 in the debate over freedom of speech on the Internet. It has been anactive opponent of mandatory blocking software.

[iii]National Telecommunications and Information Administration, FallingThrough the Net: Toward Digital Inclusion, October 2000

[iv] Reno v. ACLU, 521 U.S. 844 (1997)(RenoI)

[v] Id. at 871

[vi] See, e.g., Reno v. ACLU, 521 U.S. 844,874 (1997) ("Reno I"); Board of Educationv. Pico, 457 U.S. 853, 867-68 (1982); Tinkerv. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 511 (1969); Campbell v. St. Tammany Parish Sch. Bd.,64 F.3d 184, 190 (5th Cir. 1995).

[vii] 521 U.S.844 (1997) ("Reno I")

[viii] R.A.V. v. City of St. Paul, 505 U.S.377, 382 (1992); see also Regan v. Time,Inc., 468 U.S. 641 (1984)

[ix] Turner Broadcasting System v. FederalCommunications Commission, 114 S.Ct. 2445 (1994).

[x] Arkansas Writers' Project, Inc. v. Ragland,481 U.S. 221, 231 (1987)

[xi] Sable Communications of California, Inc. v.FCC, 492 U.S. 115, 126 (1989)

[xii] Elrod v. Burns, 427 U.S. 347, 362 (1976)

[xiii] Butlerv Michigan, 352 U.S. 380, 383 (1957)

[xiv]Communications Decency Act of 1996. 47 U.S.C. §223

[xv] Reno I. at 878

[xvi] Id. at 875

[xvii] See,e.g., FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225-29 (1990); Freedman v.Maryland, 380 U.S. 51, 58 (1965).

[xviii] Miller v. California, 413 U.S. 15(1973).

[xix] This is animportant requirement the Government overlooked in its enactment of theCommunications Decency Act (CDA). In Renov. ACLU, 521 U.S. 844 (1997)(Reno I), the Government argued the statute wasnot vague because it parroted one of the Millerprongs (the material "in context, depicts or describes, in terms patentlyoffensive as measured by contemporary community standards, sexual or excretoryactivities or organs."). The Court disagreed, noting that the second prong of Miller contained a critical elementomitted from the CDA: that the proscribed material be "specifically defined bythe applicable state law." The Court also noted the CDA went beyond Miller's application to sexual conductto include "excretory activities" as well as "organs" of both a sexual andexcretory nature. Finally, the Court concluded that "just because a definitionincluding three limitations is not vague, it does not follow that one of thoselimitations, standing by itself, is not vague."

[xx] Mainstream Loudoun v. Loudoun County Library,24 F.Supp. 2d 552 (E.D. Va. 1998) (Mainstream Loudoun II).

[xxi] MainstreamLoudoun II, 24 F. Supp. 2d at 569.

[xxii] Id.

[xxiii] Grayned v. City of Rockford, 408 U.S.104, 108 1972)

[xxiv] Village of Hoffman Estates v. Flipside,Hoffman Estates, Inc., 455 U.S. 489, 499 (1982)

[xxv] NAACP v. Button, 371 U.S. 415, 433(1963)

[xxvi] Grayned, 408 U.S. at 108-109

[xxvii] Smith v. Grayned, 415 U.S. 566, 578(1974)

[xxviii] Id.

[xxix] Baggett v. Bullitt, 377 U.S. 360, 372(1964)

[xxx] SeeTalley v. California, 362 U.S. 60 (1960); McIntyre v. Ohio Elections Commission, 115 S.Ct. 1511 (1995); ACLUv. Johnson, 4 F.Supp.2d 1029 (D.N.M. 1998); ACLU v. Miller, 977F.Supp. 1228 (N.D.Ga. 1997)

[xxxi] No.99-603, February 28, 2001. The decision is available at: http://laws.findlaw.com/us/000/99-603.html

[xxxii] See,for example, Rosenberger v. Rector and Visitors of the University of Virginia,515 U.S. 819 (1995). There, the Court "reaffirmed the requirement of viewpointneutrality in the Government's provision of financial benefits."

[xxxiii] National Endowment for the Arts v. Finley,524 U.S. 569 (1998)

[xxxiv] Id. at 588

[xxxv] ACLU v.Reno, 31 F.Supp.2d 473 (E.D. Pa. 1999)

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