Shelf-Censorship - The Supreme Court finds a library porn filter it can love. By Dahlia Lithwick: Today's case, United States v. American Library Association, represents Congress' 2,000th (or so it feels) attempt to regulate Internet pornography, as it relates to children. [...] The Children's Internet Protection Act requires that public libraries receiving federal funds install filters for every computer connected to the Internet, whether used by adults or children. Almost immediately, a special three-judge panel in Philadelphia enjoined the government from enforcing it. The panel unanimously found CIPA facially invalid because it forced libraries, as state actors, to violate the First Amendment rights of the public. The provision relating to public schools was never challenged. Nobody, it seems, is actually for encouraging kids to access Internet porn from public libraries; the problem is that most of the current filtering software both "underblocks" and "overblocks," meaning, respectively, that lots of smut still gets through the filter and that lots of blocked Web sites contain constitutionally protected and educationally important material. (Sites banned by the porn filter include the Knights of Columbus Council 4828, the California Jewish Community Center, and Orphanage Emmanuel, the Republican National Committee's Web site, a juggling site, and health sites devoted to baldness and halitosis.) Plaintiffs in the suit include a teenager unable to research homosexuality on the Web and another who couldn't research his mother's breast cancer. As my colleague Julie Hilden has observed, it's silly to look to software to make determinations about what is obscene, patently offensive, or harmful to minors, given that humans can barely manage to do so either. [...] Chief Justice William Rehnquist and Justice Antonin Scalia have no interest in hearing that libraries are public forums; in fact Scalia is of the opinion that libraries can and do censor what he calls "garbage" all the time. Justice Stephen Breyer worries that if you can't constitutionally filter porn in public-school libraries, public schools are all going to stop using computers for anything. And O'Connor makes it amply clear that she thinks it's way too premature to start "importing wholesale public forum analysis into libraries."
Interesting. At the moment, it looks like CIPA will actually survive court review.
To be sure, Scalia isn't wrong about how a library functions, although it's somewhat incorrectly stated. After all, a library doesn't "censor", as such; it doesn't refuse to allow people to write and publish. It simply declines to stock certain books that its bibliographers deem unworthy, for whatever reason. And to the outside viewer, those reasons probably seem fairly arcane. That said, most libraries have a written bibliographic selection plan, outlining the specific points of consideration for each subject area, detailing how selection is done. If a patron/author asks, the bibliographer will write a letter, telling them point by point exactly why a given book was not included in the collection. For that matter, it may be a simple case of being unaware that the material exists; it's not possible to know about everything, after all. Thus, one of the points of comparison fails: although libraries do select materials, it's possible not only to find out how and why, but also sometimes to get a decision changed or to alter the selection criteria within the library itself. The blocking software is not only patented, and its lists of criteria and sites closely guarded, but even when the librarians discover that a site should be accessable to all, they have no means of enforcing that decision.
CIPA surviving the Court would not be a terribly surprising result. The Court has traditionally given great deference to Congress' ability to condition how the national funds are spent. Technically speaking, if any library were willing to forego federal grants and subsidies, they could provide unfiltered computers without violating the law. Of course, Congress knows full well that no public library or public school system is in any financial state to forego federal funds (or was even when the law was first passed), so in some ways, it's something of a deception. However, when it comes to strings attached to financial aid, the Court has generally been quite happy to let Congress speak with a forked tongue.
If anything makes the Court overturn this law, I suspect it will be the fact that it restricts access to constitutionally protected materials without allowing the librarians or the public at large to know exactly what is being restricted, or how it's being done. (Halitosis? What on earth is sexual or obscene about bad breath? Are there some bad breath fetish sites out there that only the porn filter companies know about?) But frankly, given the apparent hostility of the majority to the "open forum" argument, I don't expect any free-speech type of argument to have swayed them.
Eh. CIPA will survive on a 5-4 or 6-3 vote. I would expect that Souter, Ginzberg and Stevens will all likely oppose the law; the only question is whether or not Kennedy, "whose love of free speech borders on the obscene", will side with them.
Posted by iain at March 06, 2003 12:28 PMComments
