April 19,2002

Since the last report, there is very little to report. Although the Greensboro Public Library had an issue with the “Why the Knights” video, it was more of a selection issue rather than a challenged issue. Therefore, there are no reports of any material being challenged during this quarter.

Everyone is anxious on the outcome of the CIPA trial being held in Philadelphia. Testimonies have concluded and the proposed findings of fact and legal briefs were due to the court by April 11. Each of the parties will have one opportunity to respond to these findings and briefs by April 18. The judges will likely rule by early May so libraries will have time to prepare before E-rate and LSTA deadlines fall. The special three-judge panel has expressed skepticism about the CIPA. It is expected that the losing side will appeal to the Supreme Court and there is no guarantee that they will hear the case. You can keep current on this issue at the ALA website: http://www.ala.org/cipa/

In a related decision, the Supreme Court ruled on another free speech issue. In Ashcroft v. Free Speech Coalition, The U.S. Supreme Court Tuesday struck down a 6-year-old law that prohibits the distribution and possession of virtual child pornography that appears to -- but does not -- depict real children. The 6-3 ruling says the law violates the First Amendment guarantee of freedom of speech. While this decision could be seen as a positive sign that the court could see CIPA in the same light, one should not conclude that this would be the case. The Supreme Court opinions can be found at: http://www.supremecourtus.gov/opinions/01pdf/00-795.pdf Additional information can be found at http://www.cnn.com/2002/LAW/04/16/scotus.virtual.child.porn/index.html

Note: "The European Parliament has voted overwhelmingly to oppose the use of"blocking" as a way of regulating content on the Internet. The vote (460in favour, 0 against and 3 abstentions) on March 11 means that ISPswill not be forced to restrict access to Web sites."

In another decision, Tattered Cover, Inc. v. City of Thornton, was widely watched as it dealt with the First Amendment. Charles Levendosky, editorial page editor of the Casper (Wyo.) Star-Tribune wrote the following:

“On April 8, the Colorado Supreme Court issued a decision that dramatically changes the landscape of First Amendment jurisprudence in its state by granting greater protection to bookstores and the people who buy books.

In its unanimous ruling, the court rejected the reasons given by police for seeking a bookstore's sales records as a part of a drug investigation, but the court went much further. The decision outlines a two-part test to determine the proper balance between legitimate law enforcement needs and the First Amendment rights of bookstores and their customers.

Now, law enforcement officials in Colorado can no longer obtain a search warrant seeking a bookstore's records of customer purchases without a hearing in a court of law. The bookstore and law enforcement officials will both be represented at the hearing to determine whether the government has a compelling need for the warrant.

In the ruling, the Colorado high court recognized that both the U.S. Constitution and the Colorado Constitution protect the people's right to purchase books anonymously -- without government agents peering over their shoulders. However, the court rested its ground breaking decision solely on the state constitution.

The Colorado high court has a long tradition of interpreting Article II, Section 10 (the free speech and free press provisions) of the state's constitution expansively. Under the high court's rulings, the Colorado Constitution grants greater free speech rights than the U.S. Supreme Court's current interpretation of the First Amendment.”

This decision is going to be on a collision path with the USA PATRIOT Act that was passed last Fall. Certainly we will be watching as it develops.

Finally, there is another issue that is being followed: the FBI Carnivore. A federal judge has ordered the FBI to provide more information on the Carnivore, also known as the DCS 1000, technology that is installed at Internet service providers to monitor e-mail from criminal suspects. The court denied a motion for summary judgement and ordered the FBI to produce within in 60 days (from March 27) “a further research” of its records pertaining to Carnivore as well as the device called EtherPeek which manages traffic network. This is a follow up from the last report regarding this issue.

Michael Sawyer

Director