Court Overturns Law Mandating Internet Filters for Public Libraries
In a powerfully worded but sometimes wistful opinion, Chief Judge Edward R. Becker of the United States Court of Appeals for the Third Circuit, in Philadelphia, wrote that the three-judge panel hearing the case was "sympathetic" to the government's goal of using technology to protect children from the worst of the Internet.

But, he wrote in the 195-page opinion, "Ultimately this outcome, devoutly to be wished, is not available in this less than best of all possible worlds."

The law at issue, the Children's Internet Protection Act of 2001, was Congress's third effort since 1996 to shield children from pornography carried over the Internet. As with the two earlier versions, this one ran afoul of constitutional protections.

The act required schools and libraries to install a "technology protection measure," like Internet filters, to prevent access to child pornography and materials considered obscene or "harmful to minors." Libraries and schools that did not comply would lose federal subsidies for financing Internet access

The law included provisions for a special three-judge panel to hear any legal challenges to it. Along with Chief Judge Becker, Judges John P. Fullam and Harvey Bartle III of Federal District Court served on the panel. Judge Becker was appointed by President Ronald Reagan, Judge Bartle was appointed by President George H. W. Bush, and Judge Fullam was appointed by President Lyndon B. Johnson.

The decision comes a month before a Congressionally imposed deadline for libraries to install filters or lose the federal Internet financing.

The appellate court's decision addressed only the provisions of the law affecting libraries; schools are still subject to the law's provisions.

The libraries and other plaintiffs presented numerous examples of legitimate sites that had been erroneously blocked by the four most popular filtering programs. The three-judge panel mentioned many of those blocking errors in its opinion, including sites covering topics in education, medicine, politics and religion.

Other sites the filters blocked, the panel noted, included the Knights of Columbus Council 4828 in Fallon, Nev.; a site for Tenzin Palmo, a Buddhist nun; a site that promotes federalism in Uganda; and the Lesbian and Gay Havurah of the Jewish Community Center of Long Beach, Calif.

The panel called filters "blunt instruments" because of their propensity to overblock legitimate sites and underblock objectionable sites.

"We find that it is currently impossible, given the Internet's size, rate of growth, rate of change and architecture, and given the state of the art of automated classification systems, to develop a filter that neither underblocks nor overblocks a substantial amount of speech," the opinion stated.

The panel said that libraries could use less restrictive alternatives to filters, like setting policies on what users could view on the Internet, or offering parents filters for when their children use computers.

The government had argued that the filtering software was effective enough to block most of the objectionable material, and that the law did not require a perfect performance. Government lawyers also contended that libraries restrict all manner of materials in the normal course of buying books.

But the court ruled that mandating filters in a public forum like a library subjects the restrictions to a high degree of scrutiny under the First Amendment — far more than that which should apply to a library's budget-based purchasing decisions.
http://www.nytimes.com/2002/06/01/national/01LIBR.html?todaysheadlines