The one court case SafeLibraries cites more than any other is the 2003 US v. ALA decision by the US Supreme Court. This is an important censorship case, but nowhere near as important as SafeLibraries thinks. I've dealt with this case more than enough on this blog, so I'll try to keep this brief.
The US v. ALA decision tested the constitutionality of the Child Internet Protection Act, or CIPA. The CIPA is basically a set of strings attached to the acceptance of certain federal funds. The strings are that the federal government requires schools and libraries that take take those funds to implement internet filters on all computers, according to certain rules.
The ACLU and American Library Association fought this requirement as an infringement on Free Speech, but ultimately the Supreme Court ruled in favor of the federal government and the CIPA. Some of the key factors in the court's logic were: 1) the broad power of the federal government to impose conditions on the money it hands out, 2) a compelling state interest in protecting children from inappropriate materials, 3) that filters won't overblock too terribly minors' access to legitimate websites, and 4) the fact that the CIPA requires filters to be turned off if an adult user so requests. It is important to note that the court's reasoning is built on established precedents, which require restrictions to be narrowly tailored to the compelling state interest, and that the least restrictive available approach be taken.
If there is something new in this case, it is that there is some definition or clarity given here to the idea of restricting children's access to some materials that are less than obscene for adults, but are too sexually explicit for children. The basic idea is something that the Supreme Court has indicated elsewhere it is willing to allow, within certain limits. In this case we have a specific piece of legislation that implements such restrictions, and has been held by the court to be constitutional.
This did not fully settle the matter, however. The court specifically left open the possibility of "as applied challenges," meaning that the constitutionality of the CIPA was theoretically sound, but the details of actually implementing that theory are still subject to court review. Libraries, cities, and counties can still be sued if they block access to legitimate websites and fail to correct the problem. Such a suit could result from overblocking the legitimate access of either an adult or a child.
As I indicated in my post on Monday, SafeLibraries seems to mistake the meaning of this case, as if the Supreme Court were somehow imposing these restrictions on the entire country. That is, he doesn't understand the difference between a court decision that allows certain kinds of legislation to be applied, as apposed to a court decision that requires some specific action. I infer this from his description of the American Library Association as "defying the Supreme Court," or encouraging others to do so. There is, of course, nothing here to defy. If states or other entities want to try to implement restrictions on children's access to materials that are not obscene for adults, but are too explicit for children, they are free to try to work out legislation that will pass the kind of constitutional test that the CIPA underwent. One thing you can be certain of is that there will be a suit and the law will be tested.
Absent such legislation, SafeLibraries has no leg to stand on. The US v. ALA decision is not a law unto itself, but is the validation of one specific law, the CIPA. The CIPA, in turn, is quite narrow, applying only to internet access and only to libraries that take specific federal funds. It imposes no controls at all on libraries that don't take those funds, and it imposes no controls at all on books or other materials on any library shelves.
As I write this, it occurs to me that there might be a side-effect that arises from failing to understand the difference between allowing and requiring certain kinds of laws. SafeLibraries might have jumped to the conclusion that the US v. ALA decision allows some kind of executive action without supporting legislation. That is, for examples, that a library board could decide to restrict children's access to certain books without a state law in place to describe exactly what kinds of materials could be so restricted, by whom, and by what procedures. This is a serious misreading of the decision, and could explain some of the otherwise inexplicable positions SafeLibraries takes.
Again, if SafeLibraries wants to accomplish what he claims he wants to accomplish, he needs to shift his focus away from blaming the American Library Association for foiling his plans, and on to working toward the development of legislation that will work within the constitutional limits courts have already described. Mostly, this will have to be done at the state level, and may not be feasible at all in states with Free Speech protections in their own constitutions that are more expansive than those in the US Constitution. Continued misrepresentation of narrow court decisions as broad legislation, or as authorization to take censorious actions not specifically authorized by law, will accomplish exactly nothing.
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