It is the position of this paper that the public library in the United States today is an essential avenue for the development of debate on the entire range of topics - political, social, economic, and recreational - that engage the American public. In order to fulfill that function the public library must be immune to the imposition of any particular orthodoxy of belief. The public librarian, functioning as a professional, is fully equipped to determine the policies and practices that will ensure that function. The public library patron must be unencumbered by apprehension when approaching a librarian for assistance in research.Through an investigation of U.S. Supreme Court decisions that may determine the legality of the recent Children's Internet Protection Act, this paper investigates the strengths and weaknesses of the position of the public library in executing its historical charge to present viewpoint free materials to enhance the independent investigations of any user of any public library.
Contents
Towards a Legal Definition of the American Public Library
The Children's Internet Protection Act: Ring Around the First Amendment
Go Ask Alice
Towards a Legal Definition of the American Public Library
There is no single U.S. Supreme Court decision that determines the role of the modern public library in American society. However, by stitching a handful of decisions together we can begin to address that function, and determine the fit with our own understanding of that function.
The first Supreme Court case to address the role of the public library was Brown v. Louisiana (1966) that found for five Negro males, members of CORE, who staged a non-violent sit-in at the Audubon (La.) Regional Library. Justice Fortas determined that the men had a First Amendment right of access to the library [1].
The public library is first and always a government agency, supported by federal, state, and local funds. Even without its traditional function, the public library would be subject to challenge when any practice or policy would interfere with the rights of users to assert any First Amendment rights. As a public agency the library is a public forum.
"When the government has dedicated its property to a use traditionally associated with open debate, or when the government has dedicated its property specifically for the purpose of public debate, the Supreme Court has continually labeled that property a 'public forum' and applied heightened scrutiny to governmental regulation of speech in that forum." [ 2].Perry Education Association v. Perry Local Educators' Association (1983) determines three categories to assist in the identification of public fora and what restrictions apply to them. All public fora are public property:
- traditional public forum - a long tradition as locations of assembly and debate, severe restrictions on government rights to limit expressive activity;
- limited public forum - the state has opened the space for expressive activity; and,
- non-public forum - not by tradition or proclamation a place for public communication.
Where public libraries - owned by the government, staffed by government employees, and traditionally dedicated to open access to the materials of public debate and communication - fall within that system has never actually been determined at the national level. While not a location available for expressive conduct, it is by traditional practice and active policy engaged in fostering the free exchange of ideas. Justice Rhenquist, dissenting in Board of Education v. Pico (1982) wrote: "[Unlike] university or public libraries, elementary and secondary school libraries are not designed for free-wheeling inquiry ..." (italics mine). One of the factors in justifying the right of the school board to remove books from the school library was the fact that the very same titles were available in the public library. There is, in Pico, a very clear differentiation between the public library and the school library. Pico deals exclusively with school libraries and the removal of materials from the shelves. Justice Brennan, writing for the majority, states clearly that the decision does not address the acquisition of materials.
Libraries have developed a strong tradition of non-discriminatory acquisition. Collection development for libraries may not be based on the viewpoint of the individual librarian, but professionally responsive to a range of needs for the community. This ethic is outlined in a number of professional documents, but most clearly the American Library Association's Library Bill of Rights [ 3]. Most succinctly, policy number II states: "Libraries should provide materials and information presenting all points of view on current and historical issues." The application of these principles has been further discussed in two classic articles by Lester Asheim: "Not Censorship But Selection" and "Selection and Censorship: a reappraisal" [ 4]. Interestingly, this ban against viewpoint discrimination was sidestepped by the Librarian of Congress, Daniel Boorstin, based on a demand by U.S. Congress that the budget for the Library of Congress be reduced by the amount required to continue the transposition into Braille of articles in Playboy. The Supreme Court, in American Council for the Blind v. Boorstin (1986), found the policy indicative of viewpoint discrimination, and directed the Library of Congress to return to transposing the material.
The Third Circuit has determined in Kreimer v. Bureau of Police for the Town of Morristown (1992) that public libraries are "limited-purpose public forums". The point in question was a library right to require certain levels of behavior of library patrons. While designating the public library as a limited public forum, it did re-affirm the "right of some access to a public library, the quintessential locus of the receipt of information" (italics mine).
The right to receive speech has been established by the Court. Justice Black, writing in Martin v. City of Struthers (1943) on the issue of restrictions on hand-bill distribution stated: "This freedom embraces the right to distribute literature and necessarily protects the right to receive it. The privilege may not be withdrawn even if it creates the minor nuisance for the community of cleaning litter from its streets" [ 5]. The Court finds that society has a right to even commercially motivated speech. Justice Blackmun, writing the decision for the Court in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976): "As to the particular consumer's interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day's most urgent political debate" [ 6]. He goes on to explain that the state cannot "protect" the consumer from decisions: "It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for [us]" [7].
The key elements we can extract from previous Supreme Court decisions relevant to an understanding of the role of public libraries characterizes them as open forums that cannot restrict access, that play a key role in the free exchange of ideas within our society, and that must not become engaged in viewpoint discrimination even at the direction of its funding agency. Not only are libraries enjoined from viewpoint discrimination but they are involved in the promotion of access - the protection of the rights of end users to receive ideas.
The Children's Internet Protection Act: Ring Around the First Amendment
"If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence." Justice Brandeis, Whitney v. California (1927).The Children's Internet Protection Act was signed by President Clinton on 21 December 2000 as part of the Omnibus Consolidated Appropriations. The Children's Internet Protection Act (CIPA) and its companion legislation, the Neighborhood Children's Internet Protection Act, require that schools and libraries receiving federal funding through either the Universal Service (E-rate) subsidy of network access, Library Services and Technology Act (LSTA) or title III of the Elementary and Secondary Education Act (ESEA), now meet certain requirements in order to continue to receive funds.
In summary, it requires libraries and schools receiving any element of funding which supports networked Internet access to address the following:
- Internet safety policies addressing minor access to "inappropriate matter" (to be defined by local agency);
- Minor safety when using electronic communications provided through the local agency;
- Unauthorized access;
- Unauthorized disclosure of personal information about minors; and,
- Restriction of minor access to harmful materials.
Agencies receiving funds must conduct a public hearing on the Internet Safety Policy. They also must certify they have implemented use of a "technology protection measure" that blocks or limits Internet visuals that are obscene, child pornography, or harmful to minors (when used by minors) [ 8].
Agencies that do not receive such funding are not required to adhere to these regulations.
Despite the title of the legislation, the filtering of visuals so defined is required for children and adults. The filters may be disabled for "bona fide research or other lawful purposes". If an agency receives E-rate funding, only adults are entitled to "bona fide research"; if an agency receives only ESEA or LSTA funds there appear to be no age restrictions on who may conduct "bona fide research". If a library receives E-rate funds and LSTA the library should assume only adults have the right to request the filter be disabled. The act provides no definition of "bona fide research or other lawful purposes." The act does not extend any protections to the authorized staff person allowing such access if the end user is offended by any material encountered accidently. The lack of protection, common for librarians affected by local Harmful to Minors legislation [ 9], coupled with the vague expression "bona fide research" would certainly produce a chilling effect on active professional practice. A similar chilling effect would impact the library patron required to justify their right to research any particular topic unencumbered by a particular viewpoint.
Another variation based on the source of the funds (E-rate or ESEA) is related to the actual monitoring of computer use. E-rate funding requires the active monitoring of computer use by children, particularly their online activities; ESEA funding has no such requirement. The legislation does not indicate if such monitoring is intended to be physical, i.e., over the shoulder monitoring, or electronic, which would involve secretive monitoring of behavior.
The legislation does not differentiate between use by the public and use by staff; the restrictions apply "during any use of such computers."
Privacy, of adults and minors, should be a significant issue in the review of this case, but does not fall within the scope of this paper.
Obscene Speech, Child Pornography and Harmful to Minors
CIPA introduces a new class of unprotected speech: images defined as harmful to minors. The Harmful to Minors definition is an adaptation of the Ginsberg test, as corrected in the Reno v. ACLU (1997) ruling on the CDA definition and restrains access to images that:
"(i) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion;
(ii) depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and,
(iii) taken as a whole, lacks serious literary, artistic, political, or scientific value to minors."While CIPA includes filtering practice based on two legally recognized concepts (obscenity and child pornography) it attempts to extend the reach of those definitions. While Roth v. U.S. (1957) concluded that "obscenity [is] utterly without redeeming social importance" and "not within the area of constitutionally protected speech or press" the revised standard determined in Miller v. California (1973) has achieved defining status:
"The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value" [10].Brockett v. Spokane Arcades (1985) further clarified the Supreme Court's position, holding that "appeals to prurient interest could not be taken to include appeals to 'normal' interests in sex" [ 11]. And while New York v. Ferber (1982) established child pornography as a new category of unprotected speech, Justice Brennan, writing in dissent on Osborne v. Ohio (1990), indicates that all Ferber achieved was to place child pornography on the same plane as obscene adult pornography, "meaning that its production and distribution could be proscribed." When, however, Ohio attempts to expand the area of definition, to include "lewd exhibitions of nudity" Brennan comments further that the regulation is overbroad. Reno v. ACLU also challenges the expansion of the Miller test, pointing out that the "Miller definition is limited to 'sexual conduct', whereas the CDA extends also to include (1) excretory activities as well as (2) 'organs' of both a sexual and excretory nature." These examples would indicate that the Supreme Court may consider the "harmful to minors" definition as not narrowly tailored and too far afield from the Miller standard, even for children. Again, referencing Reno v. ACLU the court indicated concern that the proscribed material be "specifically defined by the applicable state law." CIPA does notevolve from state law, and the definition process is scheduled to be post-legislative, which requires the Supreme Court to operate on trust.
Finally, in paralleling the Miller standard, the definition of Harmful to Minors includes the phrase "depicts, describes or represents." The use of the verb 'describes' indicates verbal communication, while speech is supposedly not a target of this legislation.
It is true, however, that given the means of restriction - filtering technology - verbal communication will have to be involved.
In Young v. American Mini Theatres (1976) the Court referenced O'Brien in order to establish the right of government to fashion regulations that did impact on First Amendment interests "if it is within the constitutional power of the Government; if it furthers an important government interest; if the government interest is unrelated to the suppression of free expression; and if the incidental restriction [on] First Amendment freedoms is no greater than is essential to the furthering of that interest."
Note that the O'Brien test requires that the Government's regulation be unrelated to the suppression of free expression, and the restriction on First Amendment freedoms must be 'incidental.' CIPA appears to violate both of those narrow requirements.
Overbreadth and Vagueness
The pivotal element in this legislation is the use of "technology protection measures" - filtering software. Filtering products currently on the market work in one of three ways:
- They limit access to material based on verbal identification of that material;
- They limit access to material based on URLs - Internet addresses; these lists are created and maintained by the producer of the product and are kept secret even from the purchaser of the product; and,
- They utilize algorithms that analyze pictoral blends of color and texture in order to identify skin tone or the presence of other objectionable materials.
These products function in one of three ways:
- They are client-based products, meaning they are installed and run on each machine separately;
- They are server-based products, meaning they intercept traffic as it comes across the network and block it before it reaches the workstation itself; and,
- They utilize an Internet Service Provider that delivers a pre-filtered service.
All products designed to filter Internet sites also filter any Web-based service provided through the network, so online library catalogs, bibliographic databases, and digital professional services are also affected. This means that if a library patron were to search the term "sexual revolution" the offending term 'sex' would be eliminated from the search, 'ual' would be eliminated as a meaningless term, and the search would proceed on the term 'revolution', which returns an entirely different hit list than anticipated. This is a clear example of overbreadth, sweeping protected speech up with the unprotected. However, these products do not affect individual messages delivered via e-mail or chat rooms, meaning that sexually explicit images could be transmitted to a child via e-mail without ever intercepting the filtering software. This seriously affects the ability of the professionals involved to carry out the requirements of the Neighborhood Act: ("safety and security of minors when using electronic mail, chat rooms, and other forms of direct electronic communications") without actively invading the privacy of the minors, or directly and constantly monitoring their use.
The inability of the technology to perform as required - filtering a very narrow class of "speech" - subjects the legislation to challenge. As Fallon points out: "When speech or expressive activity forms a significant part of a law's target, the law is subject to facial challenge and invalidation if (i) it is "substantially overbroad" - that is, if its illegitimate applications are too numerous 'judged in relation to the statute's plainly legitimate sweep' and (ii) no constitutionally adequate narrowing construction suggests itself" [ 12].
While obscenity and child pornography are not protected speech, the harmful to minors definition would include areas of heretofore protected speech. But, given the unsophisticated nature of the filtering software, it cannot discriminate between obscenity and protected speech, or child pornography and protected speech, if the particular images are not verbally identified in some way as obscene or depicting children engaged in sexually explicit activity, or if the source is not identified as a source of sexually explicit materials. Protected speech is obviously (a) included in the legislation and (b) swept up in the exercise of the restrictions. This appears to characterize CIPA as facially invalid. What is the government interest in promoting this legislation?
While Ginsberg v. New York (1968) appears to parallel CIPA in intent - keeping sexually explicit materials out of the hands of children - Ginsberg did not include a ban on distribution to adults. Reno v. ACLU addresses this very same issue in its discussion of FCC v. Pacifica Foundation (1978). While the Court agreed there was a compelling government interest in protecting children from some materials that could be called "indecent" the Court considers Pacifica a "very narrow holding" that again did not enforce a ban on the communication but restricted it by time [ 13]. Neither did Ginsberg establish government employees as gatekeepers to access.
While the government may be able to make a case, as it did in Ginsberg and Pacifica v. FCC, that the protection of children from particular elements of American culture may override protection of speech, the Supreme Court has not found a compelling government interest in protecting adults from adult behavior. Justice Stevens, writing for the majority in Reno v. ACLU notes: "It is true we have repeatedly recognized the governmental interest in protecting children from harmful materials. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. [R]egardless of the government's interest in protecting children, the level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox."
However, even in considering the sandbox Erzoznik v. Jacksonville (1975) extends some protection to children's access to materials, stating "[s]peech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them."
Least Restrictive Means
"[When] a plausible, less restrictive alternative is offered to a content-based speech restriction, it is the Government's obligation to prove that the alternative will be ineffective to achieve its goals." - Justice Anthony M. Kennedy, U.S. v. Playboy Entertainment Group (2000).Most public libraries currently offer evaluated selections of Web pages related to a range of topics of interest to adults and children and these resources are available through the library Web site. Libraries also publish on their Web sites the Internet use policies and child safety policies recommended by this legislation. Currently all Web-based search engines offer the choice of use of a filter at the host location. So, any parent wishing to assist a child in the public library with Internet searches can either make use of the pre-selected, pre-evaluated links provided by professional library staff, or make a more generic use of the search engine based filters available as an option on all services such as AltaVista, Lycos, Google, and others. This is then already in keeping with the Rowan v. Post Office Department (1970) decision, whereby a resident may request certain materials not be delivered to a certain identified address. It does not violate the premise of Lamont v. Postmaster General (1965), which would have required a postal customer to request access to certain materials.
The public library does not operate in loco parentis, but professional librarians are usually available to provide direction in the use of library resources. As staff scheduling is directed towards a library's busiest hours the public can assume that professional assistance is available to the child user if the parent is unable to accompany the child to the library.
While it would be difficult to think the Supreme Court would find the public library as other than a limited public forum, the Court found in International Society for Krisha Consciousness v. Lee (1992) that there must be a clear government intent to designate a location as a nontraditional public forum. In Hazelwood School District v. Kuhlmeier (1988) the Court again restricted the public forum designation, requiring a clear demonstration of intent to create a public forum.
We can certainly argue whether the government ever intends to actually create a public forum, but must ask the question of whether the public forum evolves from some other government decisions, such as making parks public space, allowing residents to walk on sidewalks, or licensing open air bazaars. In Grayned v. City of Rockford (1972) the determination turned on whether the manner of expression is incompatible with the normal activity of the location. Justice O'Connor, concurring in International Society of Krishna Consciousness v. Lee and attempting to limit the impact of public forum doctrine states: "[C]onsideration of a forum's special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in light of the characteristic nature and function of the particular forum involved" [ 14]. However, this statement can serve as a foundation piece for allowing the specific definition of public library function to evolve from its traditional function within community.
Public libraries have been in the forefront in delivering Internet access to their communities, often preceding any other level of government access. It is readily apparent that delivering such access to the public is a normal activity of the location, that it is not an add-on service. For centuries libraries have been involved in delivering access to information via whatever media was available or common. Electronic media is another publishing medium. There is also the question of whether the public library-based network is not itself a "quintessential public forum" requiring strict scrutiny of any content-based regulation. Goldstone identifies criteria for determining a limited public forum on the Net: government-owned or government-controlled forums that are non-profit with unlimited access to recipients and viewpoint-neutral access to a large number of senders [ 15]. While the Court has indicated in Reno that the Internet should enjoy the broadest protection of speech, the court has not actually established the nature of the Internet itself.
If we accept the Internet as a designated public forum, the government is again required to demonstrate a compelling interest in requiring content regulation that cannot achieve its goals by a less restrictive procedure.
Children and Protection
The CIPA legislation implies a focused concern for the well-being of children, and children are a large class of public library users.
The most explicit legislation directed at the protection of children from sexual exploitation is found in New York v. Ferber (1982), which was developed to "prevent the abuse of children who are made to engage in sexual conduct for commercial purposes." This legislation eliminates a class of speech from any type of First Amendment protection, in order to extend personal and individual protection to minors unable to determine the full scope of their activity for themselves. It is the clearest demonstration of an overriding government interest in restricting speech, even as that speech is restricted to visual depictions: "Here the nature of the harm to be combated requires that the state offense be limited to works that visually depict sexual conduct by children below a specified age. The category of 'sexual conduct' proscribed must also be suitably limited and described."
Ginsberg v. New York is another piece of legislation devised to protect children from exposure to obscenity even when the material would not be considered obscene by adults. This legislation restricted the dissemination of some sexually explicit materials to minors.
These two particular pieces of legislation are obvious models for CIPA, and while Ferber does affect adult access to a class of material, the final intent of the legislation is not to restrict speech, but to eliminate the exploitation of children.
However, attempts at broad sweeps of speech in the name of child protection have failed. FCC v. Pacifica, which restricted broadcasts based on potentially offensive content, based its restrictions on the "sudden contact" that can occur in the broadcast media and the time of day children are likely to accidently encounter near obscene speech. Sable Communications of California v. FCC (1989) disallowed a Congressional ban on 'indecent' interstate telephone messages to protect minors; the Court was unconvinced of the need to so much reach within the legislation.
While Hazelwood School District v. Kuhlmeier (1988) found a school newspaper a pedagogical instrument and so a nonpublic forum, allowing the school administration to censor content within the paper, Tinker v. Des Moines Independent Community School District (1969) recognized that students do have constitutional rights and freedom of speech and expression is one of them.
Even Reno indicates that not all sexually explicit materials are forbidden to minors; there are non-pornographic educational materials and other items of value that children may access. Reno also points out that there are age ranges within childhood that may affect what is reasonable for a minor to view.
E-rate and LSTA as Subsidies
CIPA may be similar to the restrictions demonstrated in Rust v. Sullivan (1991), which disallowed use of Title X funds in family planning projects which offered either abortion counseling or services. Chief Justice Rehnquist, writing for the majority, states that "The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest ... ." This decision appears to contradict the decision in FCC v. League of Women Voters (1984) which overturned a regulation denying federal funds to stations engaging in editorial comment. However, while finding against the petitioners in Rust, they go on to explain the direction of their decision-making process:" ... our 'unconstitutional conditions' cases involve situations in which the government has placed a condition on the recipient of the subsidy rather that [sic] on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program ... Similarly, we have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government's ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment." Keyishian v. Board of Regents.Public libraries are no less traditional spheres of free expression, often called the "people's university" and are arguably just as "fundamental to the functioning of our society." O'Neill states "Indeed, the first amendment responsibility of a tax supported library system to its patrons would seem at least as broad as the responsibility of a company town to its residents or a broadcast licensee to its listeners." (referencing Columbia Broadcasting System, Inc. v. Democratic National Committee (1973)) [ 16]. With American Council for the Blind v. Boorstin the Court has also indicated that once a service is available it cannot be withdrawn based on viewpoint discrimination.
Prior Restraints
"The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment" [ 17].Lovell v. Griffin (1938) ruled invalid on its face a Griffin, Georgia statute prohibiting the distribution of printed literature without the permission of the City Manager. Justice Hughes wrote "... liberty of the press became initially a right to publish 'without a license what formerly could only be published with one.' ... the liberty of the press is not confined to newspapers and periodicals ... The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion." Today, the press is as often digital as it is print, and the Internet is certainly a source of information and opinion. As discussed above, there are a number of ways filtering technology can work, but all involve preventing information, based on some particular set of characteristics, from reaching the person requesting information about a subject that may include at least one of those characteristics. Further, in many cases the use of the technology may actually place challenges beyond the reach of the law, as commercial vendors would not be required to respond to First Amendment issues.
Justice Burger states, in Hynes v. Mayor (1976): "A narrowly drawn ordinance, that does not vest in municipal officials the undefined power to determine what messages residents will hear, may serve ... important interests without running afoul of the First Amendment."
CIPA not only requires active blocking of requested information, but it involves government employees - civil servants - in the determination of who may have full access to requested information. CIPA allows a librarian, or some designated substitute, to disable the filtering software in pursuit of "bona fide research." This violates Justice Burger's prohibition of empowering municipal officials with the option of discrimination.
However, the petitioner in Times Film Corp v. Chicago (1961) lost his challenge that the law requiring submission of a film to preview before release was an illegal prior restraint. The Court states that the petitioner has no claim of "absolute privilege against prior restraint under the First Amendment." Justice Clark points to Near v. Minnesota (1931) and the exceptional case noted by Chief Justice Hughes: "the primary requirements of decency that may be enforced against obscene publications." The decision also points to Joseph Burstyn Inc. v. Wilson (1952) which stated that motion pictures "were not necessarily subject to the precise rules governing any other particular method of expression. Each method ... tends to produce its own peculiar problems." As Chief Justice Warren points out in his dissent: "... in this case the Court gives its blessing to the censorship of all motion pictures in order to prevent the exhibition of those it feels to be constitutionally unprotected."
While Freedman v. Maryland (1965) set out procedures to reduce the impact of prior restraint, it effectively recognizes the right of the government of engage in the practice of prior restraint. However, if CIPA does pass the strict scrutiny of the Supreme Court, Freedman does establish a mechanism for challenging each disputed block on a site.
In turn, this could produce quite a flurry of legal activity.
Zoning
"The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good." - Justice Stevens, Liquormart, Inc. v. Rhode Island (1996).The Government, arguing for the Communications Decency Act, pointed to Renton v. Playtime Theatres, Inc. (1986) as a content based zoning decision and promoted the CDA as "cyberzoning" legislation. However, Justice Stevens pointed out that Young v. American Mini Theatres, Inc. was directed at the secondary effects of the locations of these theatres; the CDA was designed to protect children from the "primary" effects of indecent and patently offensive speech, rather than any secondary effects. In light of such content-based regulation, there could be no type of "time, place or manner" analysis of the law.
However, CIPA restricts the limitations on access to specific locations - public libraries and schools accepting federal funds. The government could conceivably argue that this restriction indicates a "time, place or manner" regulation, and does not affect access to the resources as a whole.
It does affect access for those who use the school and library as their only points of access to the Internet. Web access is not ubiquitous, although it sometimes feels that way. Although there is evidence that the 'digital divide' is narrowing, equity of access is still an issue in all communities.
Go Ask Alice
"The presumption against viewpoint discrimination, relied upon in Hudnut and further strengthened in R.A.V., has come to serve as the very keystone of First Amendment jurisprudence" [18].As the Director of Information Technology for the Chicago Public Library I participated in a hearing before the City of Chicago Education Committee challenging the library policy of open access to the Internet for all patrons of the library. It became obvious during the hearing that issues raised by Dr. Laura Schlesinger - a radio talk-show host - were the precipitants for the hearing.
For me, however, the most telling event was when the Chair of the Committee directed the Commissioner of the Library to have the American Library Association break its link to the Columbia University's Web site, Go Ask Alice. Go Ask Alice is a teen health Web site, which supports non-judgmentally and honestly, any question regarding any particular sexual practice that a human being may entertain. While I am a strong proponent of the Web site, as well as the book (which was not challenged), I was struck by the alderman's belief that she had the authority to restrict access to "bona fide research" materials.
I was struck, in a hallway conversation following the hearing, how little people understand about what we as professionals already know, what we as professionals have already addressed, what we as professionals value as our ethics.
This is, in part, because of stereotypes about the library profession that still affect the image of the profession. It is also, in part, because librarians have allowed that image to influence the conversations about the role of libraries within society. It is a political ploy, influence gained through the apparent surrender of power. It may well have been influenced by the dominant gender and their adaptive strategies, but that's another paper.
Besides, the Internet has changed everything.
I also had the unique opportunity to be part of the team that developed and implemented the SAILOR Project, which, through the University of Maryland and the public libraries of the state of Maryland linked all communities - from the Alleghanies to the Eastern Shore - to the Internet before the World Wide Web. There are many similar initiatives which brought libraries and librarians out of the political closet. We may not have been prepared for the impact, however. Being in a position of obvious power within our communities has made us an obvious target. Assuming positionsof leadership has made us subject to the libelous charge of being 'child pornographers.'
Talk about a change in image!
The Children's Internet Protection Act is a concretization of that challenge. The opposition has crafted a direct assault on the meaning and practice of public librarianship within this country. It is not simply an attack on what we do, it is an attack on the profession directly. The librarian, with her viewpoint neutral position, is actually more threatening to proponents of orthodoxy than any alternative viewpoint; it is hard to get a handle for the attack.
The strategy is to attack the right, the commitment, to be neutral, to turn it into a crime, to make it too expensive to maintain.
But the Children's Internet Protection Act also presents us with an opportunity to talk about who we are ... really. I once did a radio interview where I surprised the host by proclaiming that librarianship was one of the truly radical professions. Our neutrality, our commitment to balance, positions us as the only agents capable of assisting the patron with the discovery of appropriate resources, because the intellectual filter which we employ is based on our evaluation of what is most useful for the patron, regardless of who the patron is, what they want, or how they want to use it. CIPA, in requiring the librarian to determine who does and does not get full access - as long as it isn't everybody - strips us of our viewpoint independence, makes us judges of who does or does not have a valid research question. And, makes us worry about the decision we make.
Does the public really want that?
We need to emphasize our viewpoint neutrality, and our commitment to delivering the full range of resources at our disposal. The public should not wonder if there is a place for their particular query at the public library.
I believe that CIPA will be struck because of vagueness and overbreadth, but I also believe that the authors of CIPA will use the Court's objections to draft another version and that we will be required to deal with "Grandson of CDA." I hope the Supreme Court takes the opportunity presented by CIPA to address the role of the public library in this country, and to commit to the maintenance of a vigorous and robust intellectual venue that is open to all.
About the Author
Joyce M. Latham has served as the Director of Information Technology for the Chicago Public Library and Assistant Director for Automated Services at the Southern Maryland Regional Library. A practicing librarian for over twenty years, she is now a doctoral student in the Graduate School of Library and Information Science at the University of Illinois at Urbana-Champaign. E-mail: latham1@uiuc.edu
Notes
2. Goldstone (1995), pp. 358-359.
3. http://www.ala.org/work/freedom/lbr.html
4. Lester Asheim, 1953. "Not censorship but selection," Wilson Library Bulletin, volume 28, number 1, pp. 63-67; Lester Asheim, 1983. "Selection and Censorship: A Reappraisal," Wilson Library Bulletin, volume 58, number 3, pp. 180-184.
8. http://www.ala.org/cipa/regulations.html
15. David J. Goldstone, 1995. "The Public Forum Doctrine in the Age of the Information Superhighway (Where Are thePublic Forums on the Information Superhighway?)," Hastings Law Journal, volume 46, number 2 (January), pp. 335-403.
References
American Library Association, "Children's Internet Protection: An Analysis," prepared by legal counsel for the American Library Association, at http://www.ala.org/cipa/legislation.html
Lester Asheim, 1983. "Selection and Censorship: A Reappraisal," Wilson Library Bulletin, volume 58, number 3, pp. 180-184.
Lester Asheim, 1953. "Not censorship but selection," Wilson Library Bulletin, volume 28, number 1, pp. 63-67.
Children's Internet Protection Act (Pub. Law 106-554), at http://www.ifea.net/cipa.html or http://thomas.loc.gov/cgi-bin/query/z?c106:S.97.IS:
Richard H. Fallon, Jr., 1991. "Making Sense of Overbreadth," Yale Law Journal, volume 100, number 4 (January), pp. 853-908.
David J. Goldstone, 1995. "The Public Forum Doctrine in the Age of the Information Superhighway (Where Are the Public Forums on the Information Superhighway?)," Hastings Law Journal, volume 46, number 2 (January), pp. 337-403.
Elena Kagan, 1993. "Regulation of Hate Speech and Pornography after R.A.V.," University of Chicago Law Review, volume 60, pp. 873-902.
William B. Lockhart et al., 1996. Constitutional Law: Cases, Comments, Questions. 8th edition. St. Paul, Minn.: West Publishing.
Mary Minow, 1997. "Filters and the Public Library: A Legal and Policy Analysis," First Monday, volume 2, number 12 (December), at http://firstmonday.org/issues/issue2_12/minow/
James C. O'Brien, 1988. "The Promise of Pico: A New Definition of Orthodoxy," Yale Law Journal, volume 97, pp. 1805-1825.
Robert M. O'Neill, 1975. "Libraries, Librarians and the First Amendment," Human Rights, volume 4, mumber 3 (summer), pp. 295-312.
Reno v. American Civil Liberties Union (1997), at http://www.ciec.org/SC_appeal/opinion.shtml
Editorial history
Paper received 13 June 2001; accepted 1 July 2001.
Copyright ©2001, First Monday
Positioning the Public Library in the Modern State: The Opportunity of the Children's Internet Protection Act (CIPA) by Joyce M. Latham
First Monday, volume 6, number 7 (July 2001),
URL: http://firstmonday.org/issues/issue6_7/latham/index.html
