Fox Television Stations, Inc. v. FCC

On July 13^th a federal appeals court overturned the Federal Communication Commission’s  “Fleeting Expletive,” policy (see news coverage at the New York Times,  Fox News, and The First Amendment Center News)The policy, implemented in 2004, allowed the FCC to fine broadcasters for airing certain tabooed words and references, even if their use was rare and accidental.  The court found the policy to be unconstitutionally vague, and therefore an infringement on free speech.  The FCC has not yet announced whether it will appeal the decision to the U.S. Supreme Court or will rewrite the policy to pass constitutional scrutiny.

The court’s decision does not mean that television and radio broadcasters can suddenly air anything they want without restrictions. The decision was aimed at one particular regulation out of many, a regulation that was written too hastily, without careful consideration of its Free Speech implications. 

The decision has no direct bearing on library censorship, but reminds us of a legal principle that applies to all forms of Censorship, whether they affect expression in audio, video, or print formats: the need to be specific. Long-established jurisprudence says that restrictions on Free Speech must not only support legitimate governmental objectives, but must also be constructed as narrowly as possible to meet only those legitimate objectives.

This, of course, is a problem for wanna-be book-banners, who seem to have a severe disability when it comes to getting specific. Last summer, when the West Bend, WI, debacle was in progress, I pleaded repeatedly for the censors to come up with a set of standards they thought should be used to determine which books would be restricted and which wouldn’t. They steadfastly refused.  I reviewed many of their targeted books here on this blog, and could find no pattern, no rhyme or reason, to what was and wasn’t on their hit list. This was quickly repeated in Lake County, FL, with the hodgepodge of books challenged there, again without ever offering a set of censorship criteria. It’s going on right now in Fond du Lac, WI, where a censor has gone so far as to circulate a petition demanding that book acquisitions be reviewed by a committee, but has given no thought at all to how members would be selected for the committee, what their qualifications would be, nor the least inkling of what criteria the committee would use to make their decisions.

What these censors are asking for is the right to implement their personal, idiosyncratic prejudices as public policy. They are demanding a right to be capricious.

Even smaller-scale challenges, focused on as little as one title, can be surprisingly vague.  At first glance it might appear otherwise, because the challenger will say something like, “this book shouldn’t be used in the classroom because it contains the F-word,” or “this book shouldn’t be in a public library because it encourages homosexuality,” etc. These may sound specific, and perhaps in comparison to the larger-scale book challenges, they are.  But they still lack that critical detail: thinking in terms of process and procedure. If one book should be removed or restricted for containing a certain word or theme, should all such books be censored?  Can a book be censored because such a word or idea appears once, or does it have to have more than one?  How many times?  How will you measure?  If we apply the rule you’re developing, will it really censor all the books you want to censor, but leave uncensored all the books you think should be unrestricted?   What kind of library collection or classroom curriculum will your rules leave us with?

All of that, of course, is without even beginning to consider whether or not the proposed restrictions are even remotely legal. They rarely are. 

Click Here to see a PDF of the unanimous decision, known as Fox Television Stations, Inc. v. FCC, by the United States Court of Appeals for the Second Circuit (New York).

Tightening Delaware’s CIPA?

I wasn’t going to comment on Delaware’s recent attempt to “tighten” its own CIPA (Children’s Internet Protection Act), because I thought this was an unimportant story of minor changes to an already minor law. But since Safelibraries and some other sources are commenting on it, and are getting some key details wrong, I thought I might attempt a clarification.

The School Library Journal recently reported that the Governor of the state of Delaware has signed into law HB 340, which the journal describes as a “revision of CIPA” that “extends the law’s reach to wireless access in the public library.” The Journal quotes the governor as saying that the new law will “make it clear for the first time that even if it's on a personal laptop, public library network policies on acceptable use still apply.”

The Governor’s accurate summary of the law has been misinterpreted by some, who think it means that “WiFi will be filtered as well as the usual means of Internet access.” This is not the case. 

I can only guess about the source of the confusion, but I think it comes from a failure to read carefully. There is, of course, a big difference between a “use policy,” a set of rules that tells people what they can and cannot do, and an “internet filter,” a set of software and hardware that actively prevents computer users from accessing web pages that are estimated to contain pornographic images. What Delaware HB 340 says is that the “use of any computer or mobile device at a library shall be governed by the library's acceptable use policy.”  This makes patron-owned computers subject to the library’s internet use policy; it does not make patron-owned computers subject to the library’s internet filter, if a given library even has one.

Some might also be confusing the requirements of two different CIPA laws, the federal and the state. HB 340 is a modification to Delaware state’s CIPA, which never required internet filters, only a usage policy.  It is the federal CIPA, an entirely separate matter, which requires libraries that get certain federal funds to implement filters. HB 340 changes only the state’s CIPA; it does nothing at all to the federal CIPA (nor could it).

So what problem does wimpy HB 340 address? The existing Delaware CIPA required libraries to have use policies for computers the library owned. The law didn’t empower library staff to take enforcement action against patrons who violated that internet use policy when the patrons were using their own computers at the library. HB 340 changes that, allowing library staff to deny library privileges to any patron who violates the internet use policy while at the library, regardless of who owns the computer the patron used.

Both the Delaware State CIPA (Title 29, Chapter 66C) and HB 340 are short and clear.  I recommend reading them.  As of 23 June, Title 29 has not yet been updated to reflect the changes established in HB 340, which are scheduled to go into effect in about 90 days.  

Censorship and Delusional Thought

Maybe I should call this one “Revolutionary Voices Part 4.” I wonder how many parts there will be!

My May 23^rd post on a challenge to a book called Revolutionary Voices recently generated a revealing exchange of comments with an “anonymous” correspondent. The correspondent supports the decision of the Rancocas Valley (NJ) school board to ban the book. At least in part, the correspondent takes this position because, he claims, the artwork in page 103 of the book shows “two adult men engaging in anal sex,” which is how the image is captioned in a blog post he cites, but not in the book itself (a clearer mage of the artwork can be seen HERE).

As with any art, much of the interpretation and meaning is in the mind of the viewer, and this image is, perhaps deliberately, fuzzy and ambiguous. Nonetheless, my correspondent’s interpretation is not merely wrong but delusional.

I wouldn’t ordinarily say “I’m right and you’re wrong,” about an interpretation of art.  I wouldn’t ordinarily call someone who disagreed with me “crazy,” and to be clear, I’m not calling this correspondent crazy merely because he disagrees me. I’m calling him crazy because his comments give evidence of cognitive dysfunction.

Exactly how is the correspondent delusional?

First, he asserts that he can interpret, with a clarity and certainty that other people lack, exactly what is going on in a grainy, indistinct drawing that simply does not contain sufficient detail to make the claim that he makes.

Second, he ignores the simple reality of what detail the image does contain, since a careful observer can plainly see that the participants are clothed.

Third, he claims to know better than the book’s editor what the image depicts. The editor, Amy Sonnie, told the Philadelphia Inquirer that “the drawing was actually a stock image of one man hiking a football to another.”

Fourth, he claims that my position in opposition to banning this book amounts to “anything goes in high school libraries.” To draw such a conclusion from my defense of this book is no more and no less than irrational, since the contents of this book are far, far from “anything goes.” In fact, I wouldn’t argue at all about removing from a school library any book that could be shown to meet the legal definition of obscenity, but Revolutionary Voices comes nowhere close to that.

While not all book challenges are so cut and dried, this example is not at all unusual. The plain facts are that Revolutionary Voices is a serious work of literature of great value to queer and questioning youth, but some adults don’t approve. Their disapproval is based in their social and political agendas, perhaps even a religious agenda, but they know they won’t be able to ban the book if they’re honest about that. So they have to exaggerate obscenity claims and hope nobody bothers to check their claims by actually opening the book.  None of that is crazy; it’s just devious, dishonest and treacherous.

But when one refuses to take personal responsibility for the meaning one gives to art, when one claims an ability to see what others cannot see, when one contradicts the plainly observable facts, that’s just plain nuts.

The good news is that the Revolutionary Readings project I mentioned in my May 26^th post is proceeding as planned, and has even expanded its scope. In an effort to demonstrate the serious value of Revolutionary Voices, the contents of the book will be performed in Montclair, NJ, on June 27^th, Metuchen on July 8^th, East Rutherford on the 28^th, and back at Montclair on August 19^th.  They’ve even got a performance in New York City on July 12^th.  See http://www.revolutionaryreadings.com/ for details.

Following the lead of this enterprising and creative group, I’m going to ask that readings from Revolutionary Voices be included in the Banned Books Week observances we’ll be having in my area from 25 Sep through 02 Oct, 2010.

  

Nickel and Dimed?

An unusually honest book challenge is still under consideration in Easton, Pennsylvania, according to Lehigh Valley Live.com. I say unusually honest because many book challengers never admit that their objections are political or religious in nature, especially when they really are. Too often, challengers exaggerate -- or outright fabricate -- claims that a book contains sexually explicit materials or foul language, specifically to avoid revealing their true objections.  Not so in Easton.

The book in question is Barbara Ehrenreich’s Nickel and Dimed: On (Not) Getting by in America. This is a journalistic investigation into what it’s like for Americans earning the minimum wage to try to make ends meet.  Ehrenreich tried living this way herself, and wrote up her experiences from an eye-witness perspective. The results are less than kind to corporate America and even to some individuals with a higher standard of living.  At the Easton Area School District, the book was “part of the school's 11th-grade Advanced Placement English curriculum.”  As one administrator put it, “We read books like this to spark debate, get kids thinking about what they actually believe in, and stand up and defend it.”

Since the book is non-fiction and contains no sexually explicit material, the challenger had no choice but to be honest.  He accused the district of engaging in “political activism” by using the book, which he claims promotes economic fallacies, socialist ideas, and illegal drug use.  He also claims it belittles Christians.  The challenger has no children in the school district, but feels he has standing to make his claim as a tax-payer and as a graduate of the school district.

This kind of challenge is a waste of time for the school district and for the challenger, since even if the challenger’s claims are true, they do not constitute a legally defensible basis for removing a book.  In fact, removing books in an attempt to enforce political orthodoxy has been specifically tested and rejected by the U.S. Supreme Court (Board v. Pico, 1982). Nevertheless, waste time is just what the school district did, creating an 11-member committee to review the book. No harm done. The committee met in December and found the book pedagogically sound, voting to retain it.

The school board has yet to discuss the challenge. It could override the review committee’s recommendations, as School Boards have sometimes done in other book challenges. Let’s hope the board of the Easton Area School District are abler than those others.

The Bluest Eye, Again.

2 The Advocate.com reports yet another challenge to The Bluest Eye, a magnificent novel by author Toni Morrison, winner of a Pulitzer Prize and Nobel Prize for Literature. The news article says that a parent has challenged the inclusion of the book on an Advanced Placement reading list for high school (!) English students. A bone-headed parent claims to be challenging the book because of a graphic depiction of rape.

The challenge is being made at Lafayette High School, part of the Lafayette Parish School System (that’s a public school system, a Louisiana parish being the equivalent of a county in other states). School policy allows students to substitute an alternative reading if they object to a particular assignment, and The Bluest Eye is optional reading, not required. Of course, students at this school are in ninth through twelfth grades, and are old enough to have some idea of what life is really like out in the real world. That’s not enough to satisfy the parent, who is “asking that the book no longer be a recommended reading selection.” Existing school policy is more than enough to allow this parent to control his own child’s reading, but he’s insisting on also being able to control what other people’s children can read.

The article reports that “the teacher voluntarily removed the book as an option from the Advanced Placement reading list,” an unfortunate capitulation to the values of the dull-witted. It is also procedurally dubious, since the book has not yet been reviewed by a committee. A better procedure would have been to leave the book on the reading list until the review process was complete.

Speaking of review by committee, the district has stated it will do just that.  While the school is to be praised for having a procedure in place and following it, this really is a waste of time and resources. This book is of such high literary and social value that the challenge can hardly be taken seriously. It has been challenged many times in many schools, and is retained more often than not.

I reviewed The Bluest Eye and described some other challenges against it in my blog post of 31 Oct 2009.