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:
http://laws.findlaw.com/us/539/194.html
The FCC's administrative summary of the CIPA can be read at:
http://www.fcc.gov/cgb/consumerfacts/cipa.html
Thanks for posting this. I've been meaning to write a detailed post showing the flaws in Dan & Ginny's constant (mis)quoting of US v. ALA. You hit the nail on the head.
ReplyDeleteNon-Censor said, "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."
ReplyDeleteAnd you can clearly see Non-Censor making statements of law/fact based on losing arguments from US v. ALA. Losing arguments! Admittedly so! Non-Censor admits he sides with the losers, then says I'm wrong for siding with the winners!
I rest my case.
Concerned West Bend Citizen, Non-Censor's arguments are admittedly based on losing arguments. I am certain you can do better. If I'm wrong, I want to be wrong for legitimate reasons, not because someone has decided to relitigate US v. ALA in his or her mind.
Please continue working on your "detailed post showing the flaws in Dan['s] ... constant (mis)quoting of US v. ALA."
Dan apparently stopped reading when he found something he could twist. One paragraph down from what he quoted...
ReplyDelete"But my disagreement with the case is irrelevant. The decision stands and is legally applicable."
I wonder if Dan kept reading after the part he quoted?
And an aside to NonCensor. Love the blog. Your writing style reminds me of my brother. Keep it up!
SafeLibraries: you haven't sided with the "winners." You've sided with some group of judges that exists only in your fantasy world. The real-world winners did NOT say what you claim they said. If you had actually READ my post, you would see that while my opinions are similar to those of the "loosers," my arguments are based on what the "winners," said. For the thousandth time: READ IT.
ReplyDeleteAnyone who views Supreme Court opinions as "winning" vs "losing" arguments, and "winners" vs "losers" has little understanding of the nature of its rulings.
ReplyDeleteToo bad Dan's "Certificate of Completion" in "Presenting Internet Safety Programs to Teenagers" by the Morris County Fire Fighters and Police Training Academy (the one credential he highlights on his website) hasn't given him the proper legal training to make these arguments.
Non-Censor, thanks for making fun of my typo. That's a winning argument--since I can't type, obviously the US Supreme Court did not say is was "legitimate, and even compelling" to keep inappropriate material from children.
ReplyDeleteAnonymous, thanks for making fun of my lack of "proper legal training." The ALA's so-called Office for Intellectual Freedom acted in a possibly illegal and discriminatory fashion to investigate me, then block me out of one of its training classes on library law. So patron privacy and intellectual freedom obvious has nothing to do with the Office for Intellectual Freedom, but it sure gives people like you the chance to gloat. And again, making fun of my legal training is a winning argument--since I have no training, obviously the US Supreme Court did not say it was "legitimate, and even compelling" to keep inappropriate material from children.
I try to have a legitimate argument on this blog and I am met again and again with the politics of personal attack--so much so even the blog posts are written about me. The owner of the blog is the leader in this effort to attack, attack, and don't stop attacking. Attack the grammar, attack the training, attack the person, etc., etc. I'll try not to write here much since obviously personal attack is used to prove it is NOT "legitimate, and even compelling" to keep children from inappropriate material.
SafeLibraries: I am not engaging in any kind of personal attack, nor am I exploiting typos or grammar. I make plenty of these myself.
ReplyDeleteYour ideas, on the other hand, are fair game. You put them out in public to serve your political objectives, and so they are subject to public debate and scrutiny. You are obviously a literate person, therefore I assume you say what you mean or mean what you say.
As to your last comment here, I'm not sure what that's supposed to be about. You seem to have brought details from other blogs into this one, since I haven't said anything (yet) about "legitimate, and even compelling" interests or the ALA's Office for Intellectual Freedom.
Assuming your last comment has something to do with my blog, you seem to forget that I AGREE WITH YOU about filtering for children. What I wrote about was filtering for ADULTS. You even quoted that when you wrote, "it is pure propaganda to say filtering for adults is censorship."
A pattern I see here is that you tend not to read things carefully. You don't read so much as go fishing. You look for points that support your position or that you can make use of, and ignore the rest. The result is that you don't understand fully what people really said.
You did that with my post, which you seem to have read only halfway through, and as a result you seriously mischaracterized my argument as "siding with the losers," when in fact it is based on the words of the "winners." You've done the same with US v. ALA decision, ignoring the "ifs ands or buts," that make that decision nuanced rather than crude.