Twenty Years of the Children’s Internet Protection Act
by Anthony Aycock
Last year, I wrote about the first—and, to date, only—U.S. Supreme Court case about book banning (“ ‘The Right to Receive Ideas’: Island Trees Union Free School District v. Pico, 40 Years Later,” from the November/December 2022 issue). The case dates to 1976, when a New York school board, acting on a complaint from the conservative group Parents of New York United, removed several books from the high school library that it thought were “anti-American, anti-Christian, anti-Sem[i]tic and just plain filthy.”
Many of the books were about racial and ethnic minorities—Richard Wright’s Black Boy, Eldridge Cleaver’s Soul on Ice, and Piri Thomas’ Down These Mean Streets. In addition were the anonymously published Go Ask Alice, about a teen girl with a drug addiction, and Desmond Morris’ The Naked Ape, which compared humans to animals. There was also Kurt Vonnegut’s Slaughterhouse-Five, one of America’s most-banned books.
A group of students led by senior Steven Pico sued over the removals. The case made it to the Supreme Court, which in 1982 ruled in favor of the students, saying, in essence, that a school board can’t censor books just because it doesn’t like them. Twenty-one years later, the Supreme Court decided another case, United States v. American Library Association, involving children and information. Unlike Pico, the court in this case ruled in favor of government censorship. What’s going on here?
The origin of this case lies in the 1996 Communications Decency Act (CDA), a law that made it a crime for anyone to engage in online speech that was “indecent” or “patently offensive” if that speech could be viewed by a minor. The American Civil Liberties Union (ACLU) sued, arguing that the CDA was unconstitutionally vague and that it criminalized expression protected by the First Amendment.
The Supreme Court agreed and struck down the CDA. In his opinion, Justice John Paul Stevens wrote that “the interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.” Congress tried again in 1998 with the Child Online Protection Act (COPA), which narrowed the range of prohibited material. (Note: This is not to be confused with COPPA, the Children’s Online Privacy Protection Act. Passed in 1998, this law, which is still in effect, limits websites in the services they can offer children younger than 13 without parental consent.) Again, the courts said no.
In 2000, Congress made a third attempt with the Children’s Internet Protection Act (CIPA), which requires entities that rely on E-rate—a federal program that discounts broadband internet for K−12 schools and libraries—to install “a technology protection measure” on each of its computers with internet capability. In other words, these schools and libraries have to block access to websites that are obscene (as defined by the 1973 case Miller v. California), child pornography (as defined by Title 18, Section 2256 of the U.S. Code, a federal statute), or content that is harmful to minors, defined by Title 20, Section 9134 of the U.S. Code as:
any picture, image, graphic image file, or other visual depiction that—(i) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion; (ii) 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; and (iii) taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors.
THE COURT CASE
As with its predecessors, CIPA became the subject of a lawsuit, this time by the American Library Association, which argued that the law was unconstitutional because it “induces public libraries to violate their patrons’ First Amendment rights” and it “requires libraries to relinquish their First Amendment rights as a condition of the receipt of federal funds.”
This time, the Supreme Court did not strike down the law. In 2003, a 6-3 decision upheld CIPA’s constitutionality. The court ruled that the act does not violate a library patron’s First Amendment rights. “To fulfill their traditional missions of facilitating learning and cultural enrichment,” wrote Chief Justice William Rehnquist, “public libraries must have broad discretion to decide what material to provide to their patrons.”
This goes for books as well as the internet, Justice Rehnquist reasoned. (Justice David Souter didn’t buy this argument, comparing internet filters to cutting pages out of an encyclopedia.) Justice Rehnquist also observed that there could be no infringement of a library’s free speech rights when it could just refuse the federal funds.
CHILDREN AND THE INTERNET
As with the Pico case, there are definite parallels between the CIPA era of the early 2000s and now. It isn’t the internet per se whose use by children is the biggest worry. Rather, it is social media, which kids turn to for entertainment and self-expression, as well as for gathering news. However, social media use has a downside. The Mayo Clinic, for example, points out that social media can distract teens, disrupt their sleep, and expose them to “bullying, rumor spreading, unrealistic views of other people’s lives and peer pressure.” Other studies link Facebook and similar sites to rises in teen depression, anxiety, and suicide.
Not every social canker has a legislative balm, but one state, Utah, is making an effort. On March 23, Governor Spencer Cox signed two bills into law, H.B. 311 and S.B. 152, that together form the Utah Social Media Regulation Act. Under this new law, those younger than age 18 will need explicit permission from their parents to create social media accounts. This will require companies to do a more thorough job of verifying users’ ages. Parents will also be able to monitor the content their kids are seeing and posting. Most crucial, the law will mandate a curfew: Accounts for minors won’t be accessible between 10:30 p.m. and 6:30 a.m. unless parents grant permission.
Greater parental oversight is the supposed impetus behind the last couple years’ worth of book banning and classroom bills. Reading is the wrong place to flex parental muscles, which is why those bills are being vehemently fought. The internet, however, is the perfect place for this. In his court opinion, Chief Justice Rehnquist noted that public libraries don’t offer internet access to “encourage a diversity of views from private speakers” but do so for the same reason they offer books, movies, and any other resource: for research and learning. Thus, he wrote, the internet “is simply another method for making information available.”
That may have been true of Web 1.0, but it isn’t true now. The current internet, rather than a passive information repository, is a living thing, a conduit for social interaction. And haven’t we always regulated our children’s interactions? We regulate them because kids, with their lack of worldliness, are no match for ill intentions. Heck, even well-intentioned interactions can leave bruises. If you have read my articles in this magazine over the years, you know that I am no fan of censorship. I don’t subscribe to protecting children from ideas. But I am in favor of protecting them from people—those from whom they need protecting, anyway.
The Supreme Court was right to invalidate pre-CIPA bills that skewed too heavily toward compromising First Amendment liberties. And it was right to recognize that, in CIPA, Congress finally achieved the correct balance.