The Children's Internet Protection Act of 2000

1.                  As a funding incentive, CIPA can require schools and libraries that accept federal subsidies for discount Internet services (i.e., "e-rate" funds) to use filters to attempt to restrict access by minors under 17 to that kind of pornography that is legally "Harmful To Minors", as well as to restrict minors' access to visual pornography that is legally "Obscene" or "Child Pornography", and thus illegal even for adults.

A.        CIPA only applies to grade schools and high schools, not colleges.

B.        CIPA only applies to public libraries that accept federal Internet subsidies, not college libraries or private libraries that do not accept federal funds.

C.        Internet subsidies are not an "entitlement" program for libraries and schools. Conversely, federal subsidies for free Internet access in public schools and libraries are an important factor in the intent of Congress to make Internet access safe and educational for minor students in their schools and for minor children who are entitled to use public libraries without being exposed to illegal and harmful pornography or exposed to adults who are viewing such pornography on publicly accessible computer terminals in taxpayer supported libraries.

2.         CIPA provides local determination of what the filter will attempt to block by allowing the

receiving school or library to decide what could constitute the three types of pornography that

their filtering software attempts to block, guided by the scope of the legal definitions used in

federal law:

A.   "Harmful To Minors" (as defined in CIPA to be "obscene for minors");

and

B.    "Obscenity" (as limited to visual images in 18 U.S.C. § 1460 and defined by the Supreme Court, see Miller v. California, 413 U.S. 15, at 24-25 (1973), Smith v. United States, 431 U.S. 291, at 300-02, 309 (1977), Pope v. Illinois, 481 U.S. 497, at 500-01 (1987), providing the constitutional criteria for federal and state laws and courts);

and

C.    "Child Pornography" (as defined in18 U.S.C. § 2256 (8), i.e., visual depictions that are or appear to be of actual minors under age 18 engaging in "sexually explicit conduct").

3.         These three classes of pornography are unprotected under the First Amendment for minors and obscenity and child pornography are unprotected for adults, including on the Internet. The courts have defined these categories of unprotected pornography as "legal terms of art" so as to limit them to narrow classes of pornographic materials that do not include serious works of literature, art, political speech, or scientific or medical information.  No adult has the right to gain access to obscenity or child pornography in a school or public library and no child has a right to access pornography that is "obscene for minors" or "harmful to minors" in those settings and no school or library has any duty to provide access to such materials on Internet terminals. 

The three classes of pornography that Congress requires schools and libraries to attempt to filter out of their Internet access in exchange for the massive federal subsidies that make such Internet access available to all students and members of the public in libraries are:

A.  Child Pornography: Consists of an unprotected visual depiction of a minor child (federal age is under 18) engaged in actual or simulated sexual conduct, including a lewd or lascivious exhibition of the genitals.  See 18 U.S.C. § 2256; New York v. Ferber, 458 U.S. 747 (1982), Osborne v. Ohio, 495 U.S. 103 (1990), United States v. X-Citement Video, Inc., 115 S. Ct. 464 (1994).  See also United States v. Wiegand, 812 F.2d 1239 (9^th Cir. 1987), cert. denied, 484 U.S. 856 (1987), United States v. Knox, 32 F.3d 733 (3^rd Cir. 1994), cert. denied, 115 S. Ct. 897 (1995).  Note: In 1996, 18 U.S.C. § 2252A was enacted and § 2256 was amended to include "child pornography" that consists of a visual depiction that "is or appears to be" of an actual minor engaging in "sexually explicit conduct".  Section 2252A was upheld in United States v. Hilton, 167 F.3d 61 (1^st Cir. 1999), and United States v. Acheson, 195 F.3d 645 (11^th Cir. 1999). But see Free Speech Coalition v. Reno, 198 F.3d 1083 (9^th Cir. 1999) (declaring statute invalid as applied to child pornography that is wholly generated by means of computer), cert. granted, sub nom Ashcroft v. Free Speech Coalition (2001).

B.  Obscenity (hard-core adult pornography):  "This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment." Miller v. California, 413 U.S. 15, 23 (1973).  This is true even for "consenting adults." Paris Adult Theatre v. Slaton, 413 U.S. 49, 57-59 (1973).  "Transmitting obscenity and child pornography, whether via the Internet or other means, is already illegal under federal law for both adults and juveniles." Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, at 2347, n. 44 (1997). The "Miller Test" can apply to actual or simulated sexual acts and lewd genital exhibitions.  See Miller v. California, 413 U.S. 15, at 24-25 (1973); Smith v. United States, 431 U.S. 291, at 300-02, 309 (1977); Pope v. Illinois, 481 U.S. 497, at 500-01 (1987), providing the three-prong constitutional criteria for federal and state laws and court adjudications:

(1)  whether the average person, applying contemporary adult community standards, would find that the material, taken as a whole, appeals to a prurient interest in sex (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion); and

(2)  whether the average person, applying contemporary adult community standards, would find that the work depicts or describes, in a patently offensive way, sexual conduct(i.e., "ultimate sexual acts, normal or perverted, actual or simulated; ... masturbation, excretory functions, and lewd exhibition of the genitals"; and sadomasochistic sexual abuse); and

(3)  whether a reasonable person would find that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

C.  Pornography Harmful To Minors (soft-core and hard-core pornography): Known as "variable obscenity" or the "Millerized-Ginsberg Test" for what is "obscene for minors".  See Ginsberg v. New York, 390 U.S. 629 (1968); as modified by Miller, Smith, Pope, supra.  It is illegal to sell, exhibit, or display "HTM/OFM" pornography to minor children, even if the material is not obscene or unlawful for adults.  See also Commonwealth v. American Booksellers Ass'n, 372 S.E.2d 618 (Va. 1988), followed, American Booksellers Ass'n v. Commonwealth of Va., 882 F.2d 125 (4^th Cir. 1989),  Crawford v. Lungren, 96 F.3d 380 (9^th Cir. 1996), cert. denied, 117 S. Ct. 1249 (1997).   Under CIPA, pornography that is "Harmful To Minors" or "Obscene For Minors" is defined for Internet purposes to mean pornographic visual images ("picture, image, graphic image file, or other visual depiction"), judged in reference to the age group of minors in the intended and probable recipient audience, that could meet the following three prong test:

(1)  taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion (as judged by the average person, applying contemporary adult community standards with respect to what prurient appeal it would have for minors in the probable or recipient age group of minors);  and

(2)  depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals (as judged by the average person, applying contemporary adult community standards with respect to what would be patently offensive for minors in the probably or recipient age group of minors); and

(3)  taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors (as judged by a reasonable person with respect to what would have serious value for minors in the intended and probable recipient audience). 

4.            Congress can also require these federally subsidized schools and libraries to use filters to attempt to restrict adult access to visual images of Obscenity (hard-core pornography) and Child Pornography (sexually explicit images of minors), especially since such pornography is contraband and unprotected even for "consenting adults" and because the transmission or transportation of which by phone lines or common carriers is a felony under existing federal laws (see 18 U.S.C. § 1462, smuggling or any common carrier transport of obscenity, even for private use; § 1465, transportation, for sale or distribution, of obscenity across state lines or by any means or facility of interstate or foreign commerce; §§ 2252 & 2252A, transporting, receiving, or possessing child pornography within, into, or out of the United States by any means, including computer; § 1961, et seq., RICO crime for using an enterprise in a pattern of obscenity or child exploitation offenses.

5.         The power of Congress to act by tax subsidy incentive is greater than its police power to criminalize or provide civil liability for unprotected conduct.  CIPA is not a criminal or civil law and places no restrictions on the citizens or public.

6.         Library patrons who are adults are not entitled to access any particular materials of their own choice in a public library or via the Internet and even "consenting adults" have no First Amendment right to obtain Obscenity or Child Pornography, especially at taxpayer expense in federally supported public libraries or schools.   Students or library patrons who are minor children under age 17 are not entitled to access pornography that is "obscene for minors", "obscene" for adults, or child pornography.

7.            Congress may encourage children to use Internet computers in schools and libraries by subsidizing the use of pornography filtering technology so that minors will be protected from exposure to such illegal and unprotected images during their educational and entertainment use of the Internet and computer services.

8.         This Act requires K-12 schools and public libraries to provide filtered Internet access to minors and patrons, but allows the determinations and delegation of the filter process to be made by local school and library administrative personnel, without federal interference or federal judicial review.

9.         CIPA allows for unfiltered Internet use for bona fide research or other lawful purposes and makes those determinations totally within the local administrators' discretion.

10.            Congress already granted immunity to libraries and schools, as providers of Internet access, for voluntary actions to restrict access to illegal and objectionable materials, even if the materials are constitutionally protected, as part of the "Good Samaritan" protections in the CDA, 47 U.S.C. § 230(c), so they will be free to accept the e-rate funds and use filters without fear of legal liability or harassment by users, special interest advocacy groups, or even pornographers.

11.       CIPA has a future-looking, beneficial purpose of encouraging the development of filter technologies, thus furthering the mass communications and Internet development goals of Congress.  By subsidizing Internet facilities in schools and libraries and asking them to employ filter devices to try to restrict pornography from reaching their computer terminals, Congress can create a market for filter programs, foster research & development in the private sector Internet industry for better and more customizable filter devices, and re-evaluate the safety, policies, and performance of such "technology protection measures" in light of the extreme scrutiny and competent review that could be gathered from school and library administrators and Internet access professionals who will be directing and evaluating the filters, even when they personally or philosophically disagree with or oppose the use of such filtering technologies in their institutions.  The virulence of their opposition can be the strength of their constructive criticism, as Congress intends.

12.       Without CIPA, many libraries and schools would continue to provide unrestricted access by minors and adults to Internet terminals that regularly expose them to illegal and unprotected pornography, though many others will continue to provide filtered Internet access to minor children and reduce the exposure of their students and patrons to harmful pornography.  This Act seeks to make all tax supported school and library terminals open, freely accessible, and safe.  

13.       CIPA does not require subsidized schools or libraries to restrict or filter any other materials other than what they themselves think is Obscene, Child Pornography, or Harmful To Minors.  The Act requires no more, but does not interfere, on the other hand, with the local school or library's choice, if they so choose, to try to filter out violence, hate speech, or other dangerous and inappropriate materials under their right to be "Good Samaritans" under the CDA's immunity protection, either for minor children or for adults.

Bruce A. Taylor

President & Chief Counsel

National Law Center for Children and Families