Can Congress restrict minors’ access to social networking websites?

The Childrens Internet Protection Act (“CIPA”) curbs federal funding for any public library or school that will not employ software filters to prohibit minors from accessing pornographic materials. There is a bill [H.R. 5319] before Congress called the Deleting Online Predators Act (DOPA for short) that seeks to expand the scope of CIPA. The Bill calls for restricting federal funding for public libraries and schools that do not block minors’ access to chat rooms and social networking sites (such as MySpace.com).

CIPA withstood a constitutional challenge before the United States Supreme Court in 2003. [U.S. v. American Library Assn., 539 U.S. 194 (2003)] If DOPA is enacted, it will likely face First Amendment scrutiny as well. Might the analysis be different this time around?

In the American Library Association case, the Supreme Court observed that “most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries’ judgments to block online pornography any differently, when these judgments are made for just the same reason.” Accordingly, it does not violate library partrons’ First Amendment rights for there to be filters on the computers at the library.

In blocking access to chat rooms and social networking sites, aren’t libraries going a step futher, inasmuch as they are literally obstructing the “speech” of library patrons? Perhaps. But a court hearing such a challenge would once again have a ready analogy from real-world library experience: when was the last time you saw a successful constitutional challenge to a librarian enforcing the library’s quiet rule?

[News.com's coverage]