Libraries and the Internet, Part II:
Legally Speaking, What is the Internet?

Sometimes we take for granted that when conflicts arise our legal system is prepared to deal with those conflicts pursuant to the applicable laws. Although there are exceptions, our legal system is generally able to cope with most disputes over various rights and obligations under our current laws. However, like all aspects of our society, our legal system is not static. The legal rules and principles by which our courts analyze and resolve disputes can change and evolve over time. Relative to certain developments in our society, (test-tube babies, cloning, same-sex parenting, etc.) we lack established philosophical, societal or legal consensus on what guidelines to apply to ensure that those practices, new and unfamiliar to us, but with potential significant impact on our lives, ultimately benefit society as a whole.

The rapid emergence of and easy access to a new form of communication, the Internet, does not comfortably fit any existing philosophical or legal framework. In Part I of this article, we explore some of the existing rules of law that relate to freedom of speech in this country. Although our First Amendment freedoms are broad, they are not unlimited. While political speech is entitled to the highest protection under our First Amendment, there is other "speech" that enjoys no First Amendment protection, such as, child pornography and obscenity. The Internet has no accepted standards for use and no established guidelines about who can use it, or when, or what information in what form can be made available. Therefore, this new mechanism has created a certain amount of concern and confusion over how to best ensure that the benefits of its communication are available to all members of our society, as well as how the potential abuse of this mechanism or its harmful effects can be appropriately limited.

In the federal Communications Decency Act, and in various attempts by state legislatures across the country, we have witnessed piecemeal attempts to address what some legislators feel are the harmful or potentially harmful effects of the Internet. Most of these attempts have centered around issues of pornographic materials on the Internet — child pornography, access by minors to pornography or access by anyone to pornographic materials in a setting (like a school or library) where such access may be considered inappropriate. The most recent federal initiative to regulate certain access to and posting of child pornography on the Internet came in the form of the Communications Decency Act.

In 1996, a legal challenge was leveled against numerous provisions of the Communications Decency Act by a variety of groups ranging from the ACLU to the American Library Association to large private computer companies in the U.S. The essential claim was that the Act's sweep was too broad, purported to criminalize too much behavior and was too vague to determine who it applied to and what conduct was being made illegal. As the case worked its way through the federal judicial system to the U.S. Supreme Court, it became apparent that both Congress and the federal courts had no easy answers to what type of communication medium the Internet is, and what type or degree of regulation of this communication mode is lawful. The initial struggle for both Congress and the courts was in trying to define what exactly the Internet is.

In enacting the Communications Decency Act, Congress borrowed from the existing legal analyses that apply to the regulation of certain current mediums of communication — i.e. print media, television and radio. The legal standards that govern our newspapers and magazines, television and radio broadcasts have developed over decades of judicial scrutiny, legislative enactments and federal administrative oversight of the acceptable limits of censorship. Application of those existing standards seems to be sensible and logical. On its face, the Internet appears to be analogous to our existing communication methods like TV, radio and the print media. However, it is the function

* Scott F. Uhler is a partner and Rinda Y. Allison is an associate with the law firm of Klein, Thorpe and Jenkins, Ltd. with offices in downtown Chicago and Orland Park. The firm represents libraries and library districts in Illinois as well as other local governmental units. "Libraries and the Internet, Part I" was published in the Fall 1997 issue of Illinois Libraries.

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and obligation of our courts in examining conflicts that arise under the U.S. Constitution in this case the permissible type and degree of regulation of the Internet under the First Amendment to the Constitution, to apply an exacting analysis to governmental regulations that impinge on our First Amendment freedoms. When our Supreme Court examined the Communications Decency Act's regulations, it did not agree that existing legal standards could be directly applied. The role of the courts in this area can become somewhat complex and not always consistent. Although the Supreme Court found the purposes of the Communications Decency Act to be laudatory and significant, they did not find the regulatory attempts of Congress in the Communications Decency Act to be lawful under our First Amendment.

In litigation over the provisions of the Communications Decency Act, the Supreme Court examined the essential nature of the Internet and did not agree that the Internet could be seen as a means of communication comparable to television and radio. In its most significant aspects, the Internet is a communication vehicle we have not experienced before. The court characterized the Internet as "a unique and wholly new medium of worldwide human communication." Reno v. ACLU. 117 S. Ct. 2329 (1997). The Supreme Court emphasized the recent explosion of this medium into our society by pointing out that it had grown from 300 host computers in 1981 to 9.4 million in 1996. There were an estimated 40 million individual users in 1996. The anticipated growth in users is expected to exceed 200 million by the year 1999. The Supreme Court found the pace of growth and technology in this area to be unprecedented.

In searching for a legal framework that could be applied to the regulation of this "wholly new medium," the Supreme Court borrowed from numerous other areas, but did not find our existing legal standards for television, radio, newspapers or magazines to be a good fit. One of the analogies the court used was that, from the readers' viewpoint, the Internet was both "a vast library" of information and "a sprawling mall offering goods and services." Reno v. ACLU, 117 S. Ct. 2329 (1997). From a publishers' viewpoint, the court found the Internet to represent a vast platform to address millions, but that no single, identifiable organization controls membership in the World Wide Web. Generally accepted judicial or legislative rules to be applied to the posting and management of information of this library and these services and access to them on the Internet have yet to develop.

The regulation and understanding of the Internet as a communication medium is in its infancy. Our judiciary and legislatures have had little experience to date with the beneficial or harmful effects of the Internet, or with how to promote or limit such effects. Further, the limited judicial scrutiny of appropriate Internet use at this point has been narrowly focused. The issues before the courts in their examination of the Communications Decency Act were very specific. The courts were not called upon to determine whether regulation of material on the Internet is lawful, whether filtering or other regulation of material by a governmental unit is permissible or, if so, what the nature of that regulation could lawfully be. Rather, the courts examined whether the particular provisions of the Communications Decency Act that criminalized certain actions related to the use of the Internet were lawful under the U.S. Constitution. In fact, the courts referenced the fact that screening software is expected to soon be available and could serve as one possible solution to the need to protect minors from exposure to improper material on the Internet. The Supreme Court only determined that the Communications Decency Act lacked the precision that the First Amendment requires when the government regulates the content of speech. Although promoting the legitimate and important societal purpose of protecting children from potentially harmful material, the Communications Decency Act went too far by also suppressing too much speech that adults otherwise have a constitutional right to send and receive.

The fact that our vast and legally sophisticated court system has been unable to determine what species of animal the Internet is and how its use is (or is not) to be regulated has provided scant guidance to libraries as they wrestle with the same questions. However, libraries are not alone. Multiple levels of educational, governmental and judicial institutions are also struggling with these same issues.

While the process of more thoughtful evaluation and assessment of the Internet as a communication tool and the limits regarding the regulation of its harmful effects has begun, the development of a societal or legal consensus on the parameters of such regulation is in its early stages. In the final part of this series Part III, we will examine what the current state of the law in this area means on a practical level for libraries, i.e. what are the potential risks and liabilities of regulating Internet access and use or not regulating at all. We also will address those issues that have most frequently arisen to date regarding regulation, such as the appropriate use of filtering software, Internet policies and liability under local criminal statutes or ordinances for disseminating child pornography or obscene material or the creation of a hostile work environment for certain employees unwillingly exposed to sexually offensive material in the library setting.

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