UNITED STATES V. AMERICAN LIBRARY ASS'N: THE CHILDREN'S INTERNET PROTECTION ACT, LIBRARY FILTERING, AND INSTITUTIONAL ROLES

摘要

In order to determine the constitutionality of regulations on government spaces, courts must draw lines between spaces for public discourse and spaces for government speech, and between constraints on government and constraints on private speakers. This line drawing involves inevitably normative judgments, but an analysis of institutions can expose these judgments for further debate and should constrain them. The social roles of relevant spaces and relevant government entities limits the plausible characterizations that a court might give to the speech and the regulation at issue. An understanding of the roles of libraries, of Internet access, and of the federal government suggests that library filtering is unconstitutional and that such filtering cannot be a constitutional condition of federal funding, contrary to the result in ALA II. The need for institutional analysis is particularly keen in the context of regulation of the Internet. Appeals to precedent invite courts to minimize the differences between new media and old. The Internet becomes nothing more than a very large library, or perhaps a very comprehensive encyclopedia. Courts must be careful to notice the differences, to discuss them, and to consider the ways in which they matter. If courts fail to engage in this analysis, at best, they may make rulings that are inconsistent with the social roles of relevant institutions, and at worst, they risk undermining these roles in hidden ways. As Professor Lawrence Lessig points out, the Internet has no inherent nature, it is what we make of it. The plurality in ALA II crafts its holding under the assumption that the Internet is a oneway conduit of information subject to centralized control. If courts continue to uphold Internet regulation under the same assumption, this assumption may become reality. While the merits of such a shift are certainly open to debate, at the very least, courts and society should engage the debate in an open and transparent manner. After all, that is what the First Amendment is about.