Вы находитесь на странице: 1из 8

Childrens Internet Protection Act and First Amendment Rights

Dawn Bish and Cyndi Atwell

Childrens Internet Protection Act and First Amendment Rights

LIS 666 Dawn Bish and Cyndi Atwell

1|Page

Childrens Internet Protection Act and First Amendment Rights

Dawn Bish and Cyndi Atwell

Introduction
Students writing about a school assignment of Huckleberry Finn on a blog were denied access to the blog from their school computers (Dobiga, S 2007). Teachers attempting to access Yahoo images for a biology class were denied access to the website at school (Dobiga, S 2007). A seven year old student, surfing the internet for information on Sonic X (the cartoon hedgehog) inadvertently landed on a pornographic website. (The computers in this school had filters in place to be CIPA compliant)

Congress shall make no law respecting establishment of religion, prohibiting the free exercise thereof, or abridging the freedom of speech, or the press or the right of people peacably to assemble and to petition the Government for redress of grievances. (Amendment 1, Constitution of the United States, 1791)

The First Amendment to the constitution of the United States has been interpreted time and time again as free speech but also freedom to acquire knowledge. This freedom of information can be implied as one cannot have free speech without knowing what one is speaking about. In order for one to exercise the right of free speech, one needs to have freedom to information on all points of view on a topic, to carefully review and propagate this knowledge to make informed decisions on what to speak on. However, as a whole, the protection of children from inappropriate materials such as obscenity, materials harmful to minors and pornography has prompted lawmakers to develop legislation to restrict the rights of minors when it comes to access of information especially when dealing with the internet and the World Wide Web. This is a direct violation of First Amendment rights. According to Kelsey, First Amendment rights ensure Unites States citizens have freedom of speech and of the press, among other freedoms relating to expressions of beliefs and ideas. The right o receive information has been interpreted as a corollary to the First Amendment, implying the right to read and think for oneself. This is an important right for K-12 students. To develop into informed citizens in a free society, they must be allowed to explore ideas in order to partake in free speech (N/D 2007)

2|Page

Childrens Internet Protection Act and First Amendment Rights

Dawn Bish and Cyndi Atwell

According to the Childrens Internet Protection Act, Study of Technology Protection Measures, by fall of 2001, 99 % of public schools will have internet access and 87% will have internet access in classrooms. (Children's Internet Protection Act Study of Technology Protection Measures, 2003). Although the founding fathers may not have foreseen the technologies of today such as radio, television, cell phones and the World Wide Web, these technologies are not excluded from the First Amendment. So how does one protect minors from inappropriate materials and still stay within the letter of the First Amendment rights of access to information and knowledge? Is it okay to prevent minors from viewing portraits of nudes even if it is under the auspices of art? Should access to sex education be limited to minors because they may find some things that could be portrayed as pornographic or harmful to minors? What about the child who is researching a topic for a paper and comes upon filters blocking the sites where he can get information? This paper will attempt to address these issues within the backing of legislation and First Amendment rights.

First Amendment Legislation Pertaining to Minors

There have been numerous First Amendment cases dealing with minors and freedom of expression and freedom of information. As a whole, the court system has reliably upheld minors First Amendment rights to freedom of expression and freedom of information. The following is a review of some of those court cases. Tinker v. Des Moines Several students wore black armbands to school in protest of the Vietnam War. The students were suspended as the armbands were seen as being disruptive to the school. The Supreme Court ruled on February 24, 1969 that: The wearing of an armband to express views is a symbolic act that is within the free speech clause of the First Amendment. First Amendment rights applied to the school environment are available to students and teachers. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate (Kelsey, N/D 2007). In this case, the Supreme Court upheld that the wearing of armbands was protected by the First Amendment right to freedom of expression and that this freedom of expression was not given up just because the students were in school.

3|Page

Childrens Internet Protection Act and First Amendment Rights

Dawn Bish and Cyndi Atwell

Board of Education v. Island Trees Union Free School District No. 26 v. Pico Two school board members removed 9 books from the school media center after reading a list of books believed to be unsuitable to students. The school board defended their actions as being not censors but protectors of children reflecting the values of the community (Kelsey, N/D 2007). In 1982 the Supreme Court found in favor of keeping the books on the auspices of the school board could not restrict access to material simply because they disagreed with the ideas of them (Kelsey, N/D 2007). Therefore, one could not censor reading material for minors just on the fact that one does not agree with the content or finds the content to be not appropriate for children. Ginsberg v. New York In Ginsberg v.New York, the courts upheld prosecution of a vendor for selling an adult magazine to a 16 year old. The court explained that, although the magazine was not obscene for adults, the state had acted within First Amendment bounds in adopting a distinct, broader definition of obscenity for minors. (Minors Rights to Recieve Informaiton Under the First Amendment, 2004). Since obscenity is not protected under the First Amendment, legislation may be made against what is deemed obscene for minors versus what is obscene for adults.

The Community Decency Act On February 8, 1996, President Clinton signed the Community Decency Act (CDA) (Lavell, N/D 2004). This was the first law pertaining to protection of minors and the Internet. This law made it a criminal offense with imprisonment and fines if found guilty of sending or displaying offensive material to persons under the age of eighteen. Offensive material was defined as: any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs (Lavell, N/D 2004) In order to prevent prosecution, one must restrict access of sites to minors by either requiring the use of credit card or having adult access codes. The American Civil Liberties Union (ACLU) and the ALA filed suit shortly after this bill was made into law. They argued that it violated First Amendment rights because its
4|Page

Childrens Internet Protection Act and First Amendment Rights

Dawn Bish and Cyndi Atwell

indecency or patently offensive provisions were vague and over broad. In July of 1996 a three judge panel ruled unanimously in favor of the ACLU and imposed a preliminary injunction (Lavell, N/D 2004). When the justice department appealed the decision and the case went to the Supreme Court, the injunction was upheld and it was determined that the CDA was too vague in its attempts to define obscenity and that this could mean prosecution of providers that offered material that could be deemed educational to minors including sex education and art history sites. Since the Supreme Court ruled that the CDA was unconstitutional due to the vagueness of the wording, the CDA remains unenforceable. The Child Online Protection Act (COPA) The second attempt by congress to protect and restrict access of the internet to minors was the Child Online Protection Act (COPA). This legislation attempted to define more effectively the vagueness of the CDA by including a more precise definition of offensive to minors. The words with respect to minors an actual or simulated sexual act or sexual conduct, an actual or simulated normal or perverted sexual act or a lewd exhibition of genitals or post pubescent female breasts (Lavell, N/D 2004). Again the ACLU challenged the law stating that COPA violated the First and Fourth Amendments in four ways: 1) it impeded on the protected speech of adults, 2) it interfered with the First Amendment rights of minors because it was overly prohibitive, 3) it violated the right to send and receive communication anonymously, which would result in self censorship and 4) it was unconstitutionally vague (Lavell, N/D 2004) Again, the courts imposed an injunction on COPA due to the results upheld in the case of the CDA. After many back and forth statements about the legality and constitutionality of the COPA, finally in 2003, the Third Circuits decision invalidated COPA as it restricted substantial amounts of lawful speech and therefore infringed upon the First Amendment rights of adults (Lavell, N/D 2004)

Childrens Internet Protection Act (CIPA) Introduction and Passage: In 1999, Sen. McCain introduced a bill requiring public and school libraries and which receive certain federal funds to use part of those funds the purchase internet filtering programs to filter out material that could be harmful to minors. In 2000, this law was ratified by both the House and Senate and in 2001 the Federal Communications Commission issued rules the implement the law.
5|Page

Childrens Internet Protection Act and First Amendment Rights

Dawn Bish and Cyndi Atwell

CIPA Requirements: Libraries and schools must meet certain requirements in order to receive E-rate funding, the discount program for obtaining state of the art technologies and services. In order to continue receiving these discounts, libraries and schools are required to implement internet filtering programs on computers used by minors to block or filter out materials which are deemed obscene, pornographic or harmful to minors. In addition to the filtering system, libraries and schools have to adopt and implement internet policies addressing all forms of access by minors including chat rooms, email, and hacking. Schools have an additional requirement to enact policies for monitoring online activities of minors. ALA and ACLU Challenges In 2001, the American Library Association voted to legally challenge CIPA on grounds that it was unconstitutional to block access to constitutionally allowed information on the internet. Working with the American Civil Liberties Union (ACLU), a challenge was filed and upheld by the Court of Appeals for the Eastern District of Pennsylvania. In its decision in 2002, the Court of Appeals noted that it would be a violation of the First Amendment because in order for libraries to comply with CIPA the filters would be blocking constitutionally protected speech. The decision was appealed to the United States Supreme Court in 2003 with the court upholding the law. The Solicitor General had argued that CIPA would not block constitutionally allowed speech because the filter could be unblocked by an authorized person in the library at the request of an adult. The Court agreed with this argument and stated that filtered sites could be either unblocked or the filter disabled with ease at the request of an adult patron. Conclusion Is CIPA Ethically Sound or Not?

Velazquez, et al provides one with five questions to determine if an issue/problem/law is ethical. These questions are as follows: What benefits and what harms will each course of action produce, and which alternative will lead to the best overall consequences? What moral rights do the affected parties have, and which course of action best respects those rights? Which course of action treats everyone the same, except where there is a morally justifiable reason not to, and does not show favoritism or discrimination? Which
6|Page

Childrens Internet Protection Act and First Amendment Rights

Dawn Bish and Cyndi Atwell

course of action advances the common good? Which course of action develops moral virtues? (Velasques) Libraries and library organizations are almost universally in agreement in their dislike and wish to have this law repealed. The filters have long been a bone of contention because they block out reasonable educational sites in addition to what the maker of the filter considers unacceptable for minors. More importantly, does the government have the right to decide what a child accesses on the internet? Although libraries have expressed dislike for the law, it is up to parents to show that the law isnt necessary. Ultimately, the parent has the final say on what his/her child accesses and why. Does CIPA treat everyone the same? Obviously it does not because it focuses on children. The common good is another question. Who decides the common good? Is it the government, the parents, the library, or a combination of them all? As for the moral virtues, those should be developed in the home. The moral virtues that one person has developed for their children may not be those of their neighbors, but that doesnt make the neighbors virtues immoral. In the end, the person who is in charge of the child, hopefully the parent, should have the ultimate decision on the internet access for their child. The authors may not have completely answered the questions they posed in the beginning of this paper, however much knowledge was gained about First Amendment rights as pertaining to minors. The authors believe that the issue with censorship and the internet lies more in the filters that mediate what material minors can or cannot access and not the CIPA law itself. Therefore, the authors will continue to search for answers to these questions in the next paper written.

7|Page

Childrens Internet Protection Act and First Amendment Rights

Dawn Bish and Cyndi Atwell

Children's Internet Protection Act Study of Technology Protection Measures. (2003, August). www.ntia.doc.gov. Retrieved February 7, 2010, from National Telecommunicaitons and Information Administration: http://ntia.doc.gov/ntiahome/ntiageneral/cipa2003/cipareport Dobija, J. (S 2007). The First Amendment Needs New Clothes. American Librarian, 38 no 8 , 50-53. FCC Consumer Facts, Childrens Internet Protection . (n.d.). Consumer Facts. Retrieved February 7, 2010, from FCC: http://www.fcc.gov/cgb/consumerfacts/cipa.html Kelsey, M. (N/D 2007). Are We Lucky for the First Amendment? A Brief History of Student's Right to Read. Knowledge Quest, 36, no2 , 26-29. Lavell, A. L. (N/D 2004). In the Name of In(ternet)decency Laws Attempting to Regulate Content Deemed Harmful to Children. Public Librarians , 353-359. Library Bill of Rights. (1996, January 23). Library Bill of Rights. Retrieved February 15, 2010, from ALA: Http://www.ala.org/aboutala/offices/oif/statementspols/statementsif/librarybillofrights.cfm Minors Rights to Recieve Informaiton Under the First Amendment. (2004, February 2). Minors' Rights to Receive Information Under the First Amendment. Retrieved February 15, 2010, from ALA: http:///www.ala.org/ala/aboutala/offices/issuresrelatedlinks/minorsrights.cfm Velasques, M. A. (n.d.). Thinking Ethically: A Framework for Moral Decision Making. Retrieved February 2010, from Marllula Center for Applied Ethics: http://www.scu.edu/ethics/publicatins/iie/v7n1/thinking.html

8|Page