Saturday, May 8, 2010

A Bizarre Decision

A recent internet censorship case took an odd turn in Washington State on May 6th. The state Supreme Court decision is actually part of a suit that is being decided by a U.S. District court (a federal court), so the May 6th decision has not yet settled the matter.  An AP article explains that the next step is back to the federal court. 

The case, known as Bradburn v. North Central Regional Library District, is actually about a very narrow issue:  whether or not a public library has to unblock access to a legitimate website blocked by an internet filter upon demand by an adult. It’s not at all about obscenity or minors.  What the federal court asked the state Supreme Court to evaluate was whether or not such unblocking was required by the Free Speech provisions of the Washington state constitution.  The federal court will take the state court’s findings into consideration in a separate decision that will also consider the implications of federal law.

In a split decision, the majority of the justices on the state Supreme Court decided that the state constitution allowed the library to ignore an adult’s demand for unblocking.  Five justices wrote the prevailing opinion, with one justice agreeing with them, but writing a separate opinion. Three of the Supreme Court justices disagreed, writing a dissenting opinion.

It’s no surprise that I disagree with the majority’s decision.  But it’s not just a question of disagreement.  The court’s decision is nothing less than bizarre, bordering on the incomprehensible. And its incomprehensibility is not a question of legalese.  It’s a question of basic logic. The decision makes little sense.

To make their decision work, the majority treated internet filtering like “selection,” the process by which a library selects and acquires books and other materials.  A library does not (in fact, cannot) house every constitutionally-protected book, and so, the court reasoned, a library does not have to provide access to every constitutionally-protected web page.  Somehow, according to the court, this means that a library doesn't have to unblock a blocked web page just because an adult asks for it, even if the blocked page is clearly within the bounds of protected speech.

There are many quantum leaps of illogic in the court’s line of reasoning, and I’ll bore everybody to tears if I try to pick every detail apart. The main point is that the analogy between selection and internet filters is irrational.  Following the court’s logic, a library could subscribe to the New York Times, but could cut pages out of selected issues for any reason, or for no reason at all.  By the court’s logic, the library could buy ten books and decide keep two of them under lock and key.

I am not alone in holding this opinion. Three justices on the Washington state Supreme Court also took the majority to task.  Short and to the point, the dissenting opinion’s opening sentence speaks volumes:
“The question before this court is whether, consistent with our state constitution's free speech protections, a public library can actively restrict adult access to web sites containing constitutionally protected speech.  The question is easy to answer: of course it cannot.”
The dissenting opinion also says:
“There is simply no reason . . . to install a system to protect children that cannot be disabled when used by adults.”
“But censoring material on the Internet is not the same thing as declining to purchase a particular book. It is more like refusing to circulate a book that is in the collection based on its content. That would raise serious constitutional concerns.”
“Simply put, the State has no interest in protecting adults from constitutionally protected materials on the Internet.  These policies do exactly that.  The filter should be removed on the request of an adult patron.”
The problem with the court’s reasoning is not (at least not entirely) with its analysis of the law. That is, after all, their area of expertise. But in this decision, as in some others, the judges have demonstrated a lack of comprehension of what the internet is or what filters do.  The split in the decision on this case probably reflects different levels of technical understanding.  Some things the majority seems not to have grasped are:
  • The internet itself is a public forum. It is, in many ways, the ultimate public forum. As such, infringements upon internet Free Speech should always be subject to “strict scrutiny,” the most rigorous protection of Free Speech that courts can provide. 
  • When a library connects to the internet, it automatically has access to countless web pages.  Few libraries, if any, engage in any kind of selection process regarding internet sites.  In the absence of planned action, the library and its patrons have access to the entire internet, not just portions of it. 
  • Internet filters do not equate to selecting books to put on a library shelf.  Internet filters actively prevent access to materials that library patrons would otherwise have access to. Internet filters are much more like removing books from the shelves than they are like any kind of selection process. 
How this case will turn out remains to be seen.  The Washington State Supreme Court’s decision is only one of the pieces of information that the U.S. District Court will consider.  Of course, however that District Court decision turns it, it might also be appealed.  I suspect that in the long run decisions like this one one will be overturned, not because of any change in law or ideology, but because judges and justices will  become more internet savvy over time.  Sadly, this process could take another decade or two.


  1. It's pretty pathetic that people in their position would make such an illogical decision. I hope law schools include or start including classes on law and the Internet, then in the future this might not happen.

    I still wonder why censorship doesn't seem to be as much of a problem in Canada as it is in the States. Thoughts?

  2. You ask a complex question, and I think I'm just beginning to understand parts of the answer. One factor appears to me that Canada suffers far less from the mythology that it was founded by and for Christian fundamentalists. In terms of forming the U.S. national identity, the story of the puritans (pilgrims) who fled England to find "religious freedom" has been so romanticized that it overshadows all other elements of real history. Secondly, I think Canada is more consciously and purposefully a pluralistic society. Many citizens of the U.S. are working actively to limit pluralism on many fronts. They want to close the borders, declare English the only legal language,and give Christianity some kind of official status. Thirdly, in the U.S., many who identify as "conservative" in one or another sense are working to control public discourse. That means telling libraries what books to put on the shelves, as well as teaching creationism in the schools, banning sex education, putting prayer back in the schools, etc. Fourthly, we have a powerful mythology about the "natural innocence" of childhood, which we try to extend for many years beyond what is remotely reasonable. So we have parents claiming that the slightest mention of sex or profanity in a book is "too adult" even for their fifteen-to-eighteen-year-old kids.

    Whew! Now if I had time to really thin about it . . .

  3. I appreciate your answer, it was very well thought out. Sorry for overworking your grey matter ;)!

    Being Canadian myself(I've yet to even leave the province on a trip, I bleed maple syrup :) I agree with you on all points. Also, we tend to be very passive, especially politically. I'm sure there's a long, complicated explanation that has to do with our national identities and will involve lots of historical research to figure out. I'm sure someone's written a book on it. Another thing is that there isn't a Liberal/Conservative dichotomy in Canada. No one identifies themselves by their political philosophies unless they're politicians. There seems to be a giant gap between "liberals" and "conservatives" in the States, am I correct?

    Not that I can actually figure out what a liberal or a conservative is. Liberal seems to be an insult meaning "I disagree with you, you dumb hippie." Conservative seems like some vague thing having to do with "family values"(an even more vague concept in of itself).

  4. There is a giant gap between liberals and conservatives, even though those terms are very difficult to define. They've changed their meanings quite a bit over the last 30 years, too. "Family Values," an even fuzzier term, are often claimed by people who call themselves conservatives, to the point that they accuse liberals of trying to destroy the family. The term liberal can have the meaning you describe, especially if used as an insult by a conservative. Switching the perspectives, "liberal" places value on individual liberty and self-determination, while conservatives want giant corporations to rule the world for upper-class white heterosexual males.

  5. Ah, I see. Thank you, I was completely drawing a blank on that issue.

    Liberal seems to be a misused term, though. I see it thrown around so much as an insult on a few blogs I read. I guess namecalling is okay when you're debating with people different from yourself. Sheesh. Second graders behave better than most adults I see on political blogs.