I was hoping not to have to go into this kind of legal detail, but it now seems drearily unavoidable
In yesterday's post I supported, with some limitations, internet filters on library computers used by children. In that post, I listed nine stumbling blocks I felt could easily derail a project to implement such filters. So far, I've gotten pushback from commentators on only one of those nine items, which has me feeling pretty good.
But I'm surprised, and a little nonplussed, about WHICH of the nine stumbling blocks raised somebody's hackles. It was item four: "It'll fail if you try to deny the plain fact that limiting what adults can find on the internet is censorship."
Frankly, I thought this was the least controversial and least assailable of the nine problems I mentioned. I want to make it clear that I'm not trying to be clever or split legalistic hairs here. That's not my style. My item number four was based on plain English and common sense.
A commentator going by SafeLibraries believes I'm in error and that "it is pure propaganda to say filtering for adults is censorship." S/he believes the US v. ALA Supreme Court decision says so. I guess we disagree, then, on two things: 1) the plain meaning of the word censorship, and 2) the meaning of the US v. ALA decision.
For the record, I do disagree with the Supreme Court's decision in this case. I side with the District Court and the three dissenting Supreme Court Justices who found that internet filters for adults do amount to censorship. I feel that the court applied very crabbed logic to permit federal authority over local library content, with the effect of restricting free speech. My non-expert opinion is that the court was correct in asserting that a library is not a public forum (in the sense of the speaker on the public square), but what the old-fashioned Justices failed to grasp is that in the 21st century the internet IS the public square.
But my disagreement with the court is irrelevant. The decision stands and is legally applicable.
So what does US v. ALA say? Does it say what SafeLibraries would have us believe? I'm no lawyer, but I strongly doubt it.
The US v. ALA decision is about the Child Internet Protection Act (CIPA). It is important to understand that the CIPA is not an amendment to the U.S. Constitution, nor is it even a broad federal law affecting all libraries. The CIPA is a set of strings that are attached to the acceptance of federal funds under certain specific programs (E-rate and LSTA). A library taking those funds is required to implement internet filters to protect children from obscene and otherwise harmful materials. The CIPA has no impact on libraries that don't accept those particular funds.
The American Library Association and others sued the federal government, claiming that the CIPA strings infringed free speech. They won in District Court, but that decision was overturned by the Supreme court in US v. ALA. In that decision, the court affirmed that the federal government has a significant state interest in protecting children from obscene and harmful materials, and that, if properly managed, filters do not impose too serious a restriction on adults.
Trying to generalize US v. ALA beyond those libraries bound by funding to the CIPA, as SafeLibraries is trying to do, is a legal swamp. It'll be years before case law clarifies that.
But more importantly, go back and look at what I said. I said that limiting adult access to information amounts to censorship. Both the original CIPA and US v. ALA support that position. The FCC's summary of the CIPA states that in a library subject to the CIPA "an authorized person may disable the blocking or filtering measure during any use by an adult to enable access for bona fide research or other lawful purposes." In US v. ALA the Supreme Court affirmed that detail, writing, "if, as the Government represents, a librarian will unblock filtered material or disable the Internet software filter without significant delay on an adult user's request, there is little to this case." Both the CIPA and US v. ALA, then, acknowledge that the ability of an adult to bypass internet filters is essential to keeping the CIPA constitutional.
I call the reader's attention to one particular phrase in the US v. ALA decision: "if some libraries do not have the capacity to unblock specific Web sites or to disable the filter or if it is shown that an adult user's election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge." The court has deliberately left open the possibility of litigation should it happen that a library can't provide an adult with unfiltered internet access.
The position taken by SafeLibraries touches two of the other nine stumbling blocks I listed in yesterday's post. In item eight I said, "it'll fail if you let political hacks hijack a legitimate interest in children's safety and turn it into an attempt to control public discourse." That is clearly what is happening here, as SafeLibraries tries to take a relatively narrow ruling and turn it into a general repudiation of the First Amendment. I also warned, in item seven, that "it'll fail if you create a situation where the library/city/county gets sued and looses, forcing the entire project back to square one and leaving the taxpayer on the hook for the legal bills." SafeLibraries will get you there in a hurry.
The US v. ALA decision can be read at:
The FCC's administrative summary of the CIPA can be read at: