ABA Family Legal Guide

Computer Law

Child Protection and the Internet

How have courts ruled?

In the battle between Congress and the Constitution, the First Amendment has won some battles, but Congress has won the most recent one.

The Supreme Court in 1997 struck down provisions of the federal Communications Decency Act designed to protect children. These provisions outlawed the "knowing" transmission of "obscene or indecent" messages to recipients under age eighteen and knowingly sending or displaying a message "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."

The Court ruled that the law's restrictions were too broad, and encroached on the constitutional rights of computer users.

"The general, undefined terms 'indecent' and 'patently offensive' cover large amounts of non-pornographic material with serious educational or other value," the Court said in Reno v. American Civil Liberties Union. "It [the law] may also extend to discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalogue of the Carnegie Library."

However, in a 2003 case, United States v. American Library Association, the Court ruled that the Children's Internet Protection Act, which provides that public libraries that receive federal assistance to provide Internet access must install software to block images that constitute obscenity or child pornography, does not induce public libraries to violate patrons' First Amendment rights and is a valid exercise of Congress's spending power. The Court held that Congress has wide latitude to attach conditions to the receipt of federal assistance to further its policy objectives.

According to the majority opinion, "a public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of books to speak. It provides Internet access . . . for the same reasons it offers other library resources: to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality."