A controversial library filtering law is unconstitutional, a special three-judge court ruled on Friday.
The Philadelphia court unanimously said that a federal law designed to encourage the use of filtering software violated library patrons' rights to access legitimate, non-pornographic websites.
In a 195-page ruling, the court permanently barred the Federal Communications Commission from cutting off funds to libraries that don't filter. Under the Children's Internet Protection Act (CIPA), libraries only had until July 1 to pledge to filter if they wanted federal funds -- a date that handed the three-judge panel an unusually short deadline.
At the heart of the decision was one key point: Buggy software. In the most extensive courtroom analysis to date, the panel concluded that not only was current technology far too problematic, but its tendency to both overblock and underblock verboten sites won't go away: "Filtering products' shortcomings will not be solved through a technical solution in the foreseeable future."
"We find that, given the crudeness of filtering technology, any technology protection measure mandated by CIPA will necessarily block access to a substantial amount of speech whose suppression serves no legitimate government interest," the court ruled.
The special panel, created by Congress when enacting CIPA as part of a spending bill, consists of Third Circuit Judge Edward R. Becker, and U.S. District judges John P. Fullam and Harvey Bartle III.
Any appeal by the Justice Department in the case brought by the American Civil Liberties Union would go directly to the Supreme Court.
CIPA represents the third attempt by Congress to restrict online pornography. Its first attempt was the 1996 Communications Decency Act, which the Supreme Court tossed out as an unpalatable infringement of the First Amendment.
The second, the 1998 Child Online Protection Act, remains sidelined by an injunction handed down by the Second Circuit Court of Appeals and upheld by the Supreme Court. Both laws would have imposed criminal penalties on violators.
But the free-speechers and librarians had a tougher battle this time because CIPA is not a criminal law, and nobody's forcing libraries to ask the federal government for cash. The Supreme Court has repeatedly said that the government can't prohibit speech just because someone might find it offensive, but has taken a more relaxed view of speech that's tied to funding.
"There is no constitutional right to immediate, anonymous access to speech, for free, in a public library," Justice Department attorney Rupa Bhattacharyya said during the two-week trial that took place in March and April.
For guidance, the judges turned to a 1987 Supreme Court case, South Dakota v. Dole, where the justices said it was permissible for Congress to yank federal highway funds from any state with a drinking age below 21. A key part of that decision said that Congress' spending power "may not be used to induce the states to engage in activities that would themselves be unconstitutional."
Because filtering software is so flawed, its use necessarily violates the First Amendment's guarantees of freedom of speech and the related right to read, the judges said.
"Notwithstanding their 'artificial intelligence' description, automated text classification systems are unable to grasp many distinctions between types of content that would be obvious to a human," the court said. "And of critical importance, no presently conceivable technology can make the judgments necessary to determine whether a visual depiction fits the legal definitions of obscenity, child pornography, or harmful to minors."
The judges cited the extensive testimony from librarians, and expert reports commissioned from both sides, concluding: "The inaccuracies that result from these limitations of filtering technology are quite substantial.... Many erroneously blocked pages contain content that is completely innocuous for both adults and minors, and that no rational person could conclude matches the filtering companies’ category definitions, such as 'pornography' or 'sex.'"
In March 2001, the ACLU and the American Library Association sued to overturn CIPA, which denies federal "e-rate" and other funds to libraries that refuse to install smut-blocking technology. CIPA allows librarians to unblock specific websites for adult patrons, but not for minors.
