In what promises to be an important free speech case, the justices appeared to reserve their most pointed questions for the American Library Association, asking why Congress should not be able to order libraries receiving federal funds to use filters. The library group sued to overturn the law, the Children's Internet Protection Act (CIPA), last year.
Paul Smith, an attorney from Jenner and Block who represented the librarians, said that all filters violate the First Amendment and have no place in a library because they erroneously block tens of thousands of Web sites that are nonpornographic and include useful information.
In addition, Smith said, asking a librarian to unblock sites stigmatizes a person who's doing legitimate research. "You've got to go up and say, 'Please turn off the porn filter.'"
Justice Stephen Breyer suggested that this case was problematic because a ruling by the Supreme Court that filters are inappropriate for libraries might curb their use in schools as well. CIPA restricts federal money to both schools and libraries, but only librarians have sued to challenge it.
Breyer asked whether a ruling against CIPA would imply that a teacher or principal "has to let the worst possible pornography" into a classroom. "I suppose a lot of schools wouldn't have computers at all in their libraries," he said.
In May, a three-judge panel in Philadelphia ruled 3-0 that CIPA library patrons' rights to access legitimate, nonpornographic Web sites. CIPA represents the third attempt by the federal government to restrict online pornography.
Congress' first attempt was the 1996 Communications Decency Act, which the Supreme Court tossed out as an unacceptable infringement of the First Amendment. The second, the 1998 Child Online Protection Act (COPA), remainsby an injunction handed down by the Second Circuit Court of Appeals and upheld by the Supreme Court.
The Bush administration has urged the Supreme Court to overturn the lower court's decision and uphold CIPA. Ted Olson, the Justice Department's solicitor general, told the justices on Wednesday that librarians "are simply declining to put on their computer systems the kind of content they have chosen not to put on their bookshelves...The First Amendment does not require libraries to sponsor the viewing of pornography."
Justice David Souter suggested that CIPA was different, because it turns over decisions about which Web sites to block to software companies that view their blocklists, or lists of off-limit sites, as trade secrets. "The companies that do prepare them (blocklists) will not even disclose what they are blocking," Souter said. "When libraries have historically made these decisions, they have known what they're blocking."
"Libraries have known that they don't stock pornography," Olson countered.
At stake for the nation's 40,000 public libraries are hundreds of millions of dollars in subsidies, which are used to automate services and pay for Internet access. Under CIPA, libraries are constrained to install filtering software only if they choose to accept federal funds.
"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 Philadelphia court said last May.