The Debate on Internet Censorship in Public Schools - Fordham Intellectual Property, Media & Entertainment Law Journal
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The Debate on Internet Censorship in Public Schools

The Debate on Internet Censorship in Public Schools

Most people think of censorship in terms of books and other forms of print media. Many are already familiar with the American Library Association’s Banned Books Week, which celebrates the freedom to read and draws attention to efforts to ban books across the country, from traditionally controversial works like Lady Chatterley’s Lover by D.H. Lawrence to more modern classics like J.K. Rowling’s Harry Potter series. But, like everything else in our digital age, technology has transformed the debate. September 28, 2011 marked the first annual Banned Websites Awareness Day, organized by the American Association of School Librarians (AASL) as an offshoot of Banned Books Week to highlight the harmful effects of censorship in schools. The AASL argues that Internet filters in schools are overly restrictive and may actually impede students’ abilities to access legitimate educational information. Students increasingly rely on the Internet instead of traditional print sources for their research and study needs, and schools have tried to accommodate this shift by embracing new technology.

Banned Websites Awareness Day

Schools and libraries across the country took part in various campaigns to commemorate the first Banned Websites Awareness Day on September 28. The New York Times reported that one Colorado high school that held a “graffiti debate” on Internet filtering, while students and teachers in the Bronx sent emails to the Department of Education to protest the blocking of blogs and social media sites. Another school in Connecticut cut off access to Facebook, Twitter, and YouTube for the day to show solidarity with students who lacked more open access. For their part, the ACLU released a report called “Don’t Filter Me” on the excessive filtering of sites that contain information on LGBT issues, even when those sites are not sexually explicit.

What’s the Harm?

Many parents and educators are concerned that allowing students unfettered access to all the information on the Internet may do more harm than good. Advocates of Internet filtering in schools raise a number of very real concerns. Teachers frequently argue that open Internet access is a distraction in the classroom, with students browsing Facebook and Twitter instead of paying attention to the material. Others worry about children accessing obscene or pornographic material online.

Perhaps most troubling is the role the Internet has come to play in bullying and harassment, highlighted by the series of high-profile suicides in the last few years. For example, thirteen year-old Megan Meier committed suicide in 2006 after a classmate and the classmate’s mother created a fake MySpace account and posted hurtful messages. Just last month, a gay fourteen year-old boy, Jamey Rodemeyer, who had been tormented for the past 12 months by cyberbullies, killed himself coincidentally on the eve of the National Anti-Bullying Summit.* Advocates of Internet filters argue that blocking access to social media sites in schools could help prevent tragedies like these by setting the parameters for appropriate behaviors in school.

Introducing CIPA

Congressional efforts to address these concerns have often been hampered by the First Amendment’s protection of free speech. In the late 1990s, legislators passed the Communications Decency Act of 1996 and the Children’s Online Privacy Protection Act of 1998, to limit children’s exposure to child pornography and explicit content online. The Supreme Court struck down both of these laws as unconstitutional limitations on free speech. Then, in 2000, President Clinton signed the Children’s Internet Protection Act (“CIPA”) into law. CIPA achieves its goals, and circumvents the 1st Amendment, by attaching conditions to the universal service fund discounts (also called “E-rate discounts”) used by schools and libraries to purchase telecommunications and Internet services.  The law requires K-12 schools and libraries using E-Rate discounts to operate “a technology protection measure with respect to any of its computers with Internet access that protects against access through such computers to visual depictions that are (I) obscene, (II) child pornography, or (III) harmful to minors.” Each school or library to which CIPA applies must have an Internet safety policy in place to screen or block “inappropriate material” that may not be accessed by minors. Such filtering technology must be employed “during any use of such computers by minors.”

In some instances, CIPA explicitly defines the type of content that must be filtered. For example, the act defines material that is “harmful to minors” 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 suit able 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.” However, In other instances, the statute provides for broad discretion at the local level. For example, it provides that “a determination regarding what matter is inappropriate for minors shall be made by the school board, local educational agency, library, or other United States authority responsible for making the determination. No agency or instrumentality of the Government may – (a) establish criteria for making such determination; (b) review agency determination made by the certifying school, school board, local educational agency, library, or other authority; or (c) consider the criteria employed by the certifying school, school board, educational agency, library, or other authority in the administration” of the act. CIPA dictates what is “harmful” to minors, but not what is “inappropriate.” Thus, the extent of Internet filtering remains discretionary.

The American Library Association (ALA) and the American Civil Liberties Union (ACLU) were quick to challenge CIPA, on the grounds that the law required libraries to unconstitutionally block access to constitutionally protected information on the Internet. They argued that no filtering technology was sophisticated enough to differentiate between constitutionally protected speech and illegal speech on the Internet. A three judge panel of the U.S. District Court for the Eastern District of Pennsylvania agreed, noting that “in view of the severe limitations of filtering technology and the existence of these less restrictive alternatives [including making filtering software optional or supervising users directly], we conclude that it is not possible for a public library to comply with CIPA without blocking a very substantial amount of constitutionally protected speech, in violation of the First Amendment.”

On appeal, however, the Supreme Court upheld the law as a constitutional condition imposed in exchange for government funding. In United States v. American Library Association, Inc., 539 U.S. 194 (2003), Chief Justice William Rehnquist concluded that it was reasonable, given the quantity of material on the Internet and the library’s traditional role in identifying material suitable for inclusion, for a library to exclude certain categories of content, even though filtering software tended to erroneously block some constitutionally protected speech outside the categories intended to be blocked. If a patron encountered a blocked site, he or she could always ask a librarian to unblock it or, at least in the case of adults, disable the filter. Furthermore, the federal assistance programs were intended to help public libraries fulfill their traditional role of obtaining quality materials for educational and informational purposes. Therefore, Congress could validly insist that these public funds be spent for the purposes for which they were authorized.

CIPA Impacting Student Development

Despite this ruling, many remain critical of CIPA’s broad implementation in schools and libraries. The law does nothing to prohibit additional filtering that blocks Internet access beyond what its terms require. According to the American Association of School Librarians, “Students must develop skills to evaluate information from all types of sources in multiple formats, including the Internet. Relying solely on filters does not teach young citizens how to be savvy searchers or how to evaluate the accuracy of information.” Promoting free access to information is also essential to the development of young American citizens.  Critics point out that the Internet can serve as a valuable tool to enhance students’ educational experience. Social networking sites may foster collaboration on group projects for class and participation in extracurricular activities.

Further, the Internet and social media are playing an increasing role in shaping global affairs, particularly in light of the uprising of the Arab Spring in countries like Egypt. On the other hand, advocates of filtering may well point to the YouTube videos of Anwar Al-Awlaki to support their argument that the Internet can do just as much harm as good. Thus, as a simple Internet search will reveal, the debate over Internet filtering continues as students, teachers, and the rest of the world increasingly rely on online resources.

*For more on cyberbullying, be sure to read this month’s “From the Desk of the Editor” feature.

Diana DiLeonardo

Diana DiLeonardo is a second year student at Fordham Law. She grew up on Long Island and graduated from NYU in 2010 with degrees in history and politics. Her interests include singing, anything that involves chocolate, and the New York Yankees.