The First Amendment in Schools: Resource Guide: Access to Information on the Internet

The Internet is a powerful source of information and forum for free expression. It is, in the words of the Supreme Court, a venue where “any person can become a town crier with a voice that resonates farther than it could from any soapbox.” It is also a technology that permits the dissemination of all kinds of ideas, including some that are hateful, dangerous, and threatening. With its increasingly widespread use have come efforts to regulate it, in the name of preventing harm to minors from material sexual, violent, or objectionable content.

In 1997, the Supreme Court struck down parts of the Communications Decency Act (“CDA”), which prohibited the transmission of “indecent” material to minors over the Internet on First Amendment grounds. ACLU v. Reno, 521 U.S. 844 (1997). Since then, Congress has enacted other laws intended to prevent minors from exposure to sexual and violent content on the Internet. The Child Online Protection Act (“COPA”) and the Children’s Internet Protection Act (“CIPA”) are the two most recent examples. COPA made it a federal crime to use the Internet to transmit material thought to be “harmful to minors” for commercial purposes. Like its predecessor CDA, COPA has been held to violate the First Amendment and it is no longer good law. American Civil Liberties Union v. Ashcroft, 322 F.3d 240 (3rd Cir. 2003).

In December 2000, Congress passed CIPA, requiring all public libraries and schools that receive federal funds for Internet access to install blocking software. On June 23, 2003, the Supreme Court held that the CIPA provision requiring public libraries to install blocking software is constitutional, reversing a lower court decision that held CIPA unconstitutional on First Amendment grounds. U.S. v. American Library Assoc., Inc., 539 U.S. (2003). Although no one has contested CIPA’s provisions requiring elementary and secondary schools to install blocking software, it is almost certain that a constitutional challenge would fail.

Specifically, CIPA requires schools and libraries that receive federal funds for Internet access under the E-rate Program of the Universal Services Program and the LSTA to adopt and implement Internet safety policies. CIPA requires schools to (1) monitor the online activities of students under 17 years of age and (2) restrict access of minors and adults to visual depictions that are obscene, child pornography, or “harmful to minors.” Adult Internet-users, including students age 17 and older, may request that the blocking software be disabled in order to conduct bona fide research or simply to view material that is otherwise protected by the First Amendment. Libraries must also restrict access to visual depictions that are obscene, child pornography, or harmful to minors and may disable filtering software upon request. However, libraries are not required to monitor the Internet activity of their patrons.

Standards for Filtering Internet Content: Filtering software that has been developed to block restricted material is imperfect and costly. Therefore, schools and libraries are advised to weigh the costs and benefits of installing the software and maintaining it with the amount of federal subsidy received — some libraries have chosen not to install the software because it costs more than the federal subsidy forgone as a result. If the choice is made to install filtering software, it is important to understand the criteria that the software uses to exclude content, to retain control over what kind of material is blocked, and to have procedures in place to bypass the system or to correct any viewpoint discrimination that the filters may generate. Among its flaws, filtering software has a tendency to block access to sites that do not contain restricted material (such as sites about Mars exploration, Super Bowl XXX, and sextants); it may allow access to material that, by its own standards, should be blocked; it often fails to distinguish between “good” and “bad” information about sex, violence, etc.; and it may restrict access to controversial topics that are appropriate subjects for research. (The flaws in such software have been documented by Consumer Reports, Computer Professionals for Social Responsibility, and other groups.) Some students have reported that they are unable to do research assignments at school, access information about health or learn how to do computer research effectively because of the effects of overly restrictive filters. Thus, students who do not have home computers may be at a competitive disadvantage in such situations.

There are three kinds of filtering software that can be used to restrict Internet access. Online content is posted on Web sites that have addresses called URLs (uniform resource locators). Internet filters may be characterized as either “blacklists,” “whitelists,” or word-rule blocking. Blacklists block access to a specific list of “inappropriate” URLs, as determined by individuals who evaluate them based on a specific standard. They leave access open to everything else. Whitelists limit access to a selected list of URLs, blocking entry to all other sites. Word-rule filters block URLs that fit a certain rule, such as those which block the letter combinations “sex” or “breast”, and leave other URLs unblocked. These filtering methods might be used separately or in combination. That is, a software vendor could design a filter to block out sites according to a word-rule standard, but provide an automatic override that unblocked any URLs that are on a specific whitelist.

Acceptable Use Policies: School librarians may plainly create lists of recommended sites and search engines, to guide students toward educationally valuable material, and they can create menus that direct students to these sites. Schools may also clearly implement “Acceptable Use Policies” (AUP’s) to instruct students in standards and procedures governing use of school computers. These may restrict students to use of computers for “educational” purposes, instruct students in good research practices, alert them to the presence of fraudulent and illegal information, advise about the risks of communicating with unknown persons