Kids on Internet: Controls or no controls?

In a quiet courtroom tucked away in a federal building here, a titanic battle is pitting free speech against government efforts to protect children from the seemingly limitless pages of pornography in cyberspace.

Titled innocuously enough, the American Library Association v. the United States of America, the trial will determine the constitutionality of the Children's Internet Protection Act (CIPA). In doing so, it could also reshape Americans' notions of free speech well into the technology-driven 21st century.

Passed by Congress in December 2000, the law requires all libraries that receive federal technology funds to install "protection measures" on all computers that have access to the Internet. In other words, they must have blocking software to prevent youngsters from accidentally, or even intentionally, getting a peek at the myriad of hard-core sites available with just a few well-placed clicks on a computer terminal.

To free-speech advocates, from librarians to the American Civil Liberties Union, it's a well-intentioned but dangerous assault on America's First Amendment freedoms. They argue that even the best blocking software is so flawed that it would also limit adult access to a wide array of constitutionally protected speech.

"It's very easy to suggest that 'we all believe in the First Amendment, we just want to keep our kids safe,' " says John Berry, president of the American Library Association in Chicago. "But as soon as you start making those kind of concessions, you begin to undermine one of our founding principles, and you can't sacrifice those kinds of things for a little temporary security."

Supporters of the Internet-filtering law say that Mr. Berry and the other plaintiffs are missing the target. They argue that the First Amendment has nothing to do with CIPA because it's nothing more than a funding bill.

If libraries have objections, they simply don't have to accept the federal funds upon which the blocking software's use is conditioned.

"Congress has broad authority over the use of federal monies, and as long as they're acting to promote the general welfare of the people in the United States, the courts tend to defer," says Jan LaRue, the director of legal studies at the Family Research Council, a conservative advocacy group in Washington. "It's like requiring states that accept federal highway funds to have a 21-year-old drinking age."

That's just a taste of a series of complex issues this mostly silver-haired and sometimes droll three-judge federal panel will decide in the coming weeks. In fact, the two sides cover so much ground that it's easy to wonder if they're even discussing the same law.

For instance, from the librarians' point of view, Congress's decision to tie the use of federal technology funds to mandatory blocking software was just a "crafty" end run around the Constitution.

The Supreme Court has already rejected an earlier attempt to keep pornography off the Internet on First Amendment grounds, and it's weighing an appeal of yet another. The librarians argue that this latest effort – making funds dependent on censoring the Internet – is just as serious a constitutional violation as the earlier outright bans.

The law's supporters dismiss that as nonsense. They contend that blocking software is no different from the judgment the librarians themselves use when deciding what to buy for their collections.

Then there's the whole issue of the blocking software itself: Does it work or not? On Tuesday, the librarians presented several expert witnesses and their studies showing that even the best blocking software couldn't filter out all the porn. And those that did that most successfully also had the worst rates of "overblocking" – the term used for filtering out legitimate, constitutionally protected speech.

One study of more than 7,000 websites that had been blocked by the various software companies found that between 65 and 70 percent of the sites were "deemed to have potential value" to a library user.

"It's a lovely, self-assuring thought to think this kind of software is going to achieve the goals we want, but it's a fallacy. It will never happen," says Joseph Janes, a professor at the Information School of the University of Washington in Seattle.

But the law's supporters argue that the technology has advanced so far so fast, those concerns have become moot. They presented experts that found that of 26 tests of filtering software, 19 were found to be "effective," four were of "mixed effectiveness" and only three were found to be ineffective.

As to worries about over-blocking, they note the law allows adults to ask a librarian to turn off the blocking software.

"It's the same as when people ask to see the rare or valuable books that are kept in a research or reference section," says Bruce Taylor, president of the National Law Center for Children and Families in Fairfax, Va. "It doesn't take the information out of circulation. It just needs to be requested."

But the librarians argue that the mandatory filter does take discretion away from librarians and their communities, which pay for about 80 percent of the average library's budget, and gives it to the federal government.

They point out that most libraries around the country have already set policies – created with their communities – about how to deal with the problem of Internet porn. Indeed, 43 percent already offer the use of some kind of filtering device. But they believe it should be up to the local communities, not the federal government, to make such decisions.

After this three-judge panel rules, one side or the other is expected to file an appeal, and that will go directly to the Supreme Court.