NOTE: The January, 2002 issue of Searcher has an article I wrote, "My Rules of Information" (http://infotoday.com/searcher/jan02/block.htm), which elaborates on the series of brief articles I've published here about my rules.
WHY I'M AGAINST MANDATORY PORN FILTERS
by Brian Smith, .
Brian Smith is a librarian who has worked in public and law libraries. He is the creator of filteReality (http://www.filtereality.net/), an independent website on the topic of mandatory filtering, as well as The Laughing Librarian humor site (http://www.laughinglibrarian.com/) and librarism.com. He is not an attorney, and this article should not be considered to be legal advice.
This past fall, the National Coalition Against Censorship (http://www.ncac.org/issues/internetfilters.html) and a plaintiffs' expert in the CIPA litigation reported on errors found in filtering software blacklists (see http://cyber.law.harvard.edu/people/
edelman/mul-v-us/); both reports were covered by librarian blogs and other publications. While it's always fun to read about the websites of Boy Scout troops or pro-filter politicians being categorized as pornography by filters, and it's a nice public service and good PR strategy to point out that the products don't quite work as advertised, I don't think the occurrence (or even the inevitability) of overblocking is essential to the case against mandatory filtering in public libraries.
A more important factor is that the basic nature of Internet access provided by a library is different from that of the library's collection of books, magazines, database subscriptions, etc. With a few exceptions, such as access that's restricted to a whitelist of pre-selected sites, libraries have created a much more open forum for publishers in their public Internet service than they have in their stacks. Thus, an argument frequently voiced by advocates of filters -- that the library doesn't collect pornography in print, so it shouldn't allow access to it via the Web -- is an irrelevant attempt to compare apples and salad bars.
United States law recognizes that a government property may be one of several types of forum, each providing the public with different rights of access for speech or other forms of expression. Rights are broadest in a traditional public forum, such as a street corner or public park, and most narrow in a non-public forum, such as an agency's newsletter.
In between is a designated public forum, which the government intentionally creates for purposes of public expression. Drawing a line between designated public and non-public forums, the Supreme Court has said that a designated forum is made generally available to a class of speakers, while more individualized approval is given applicants to use a non-public forum.
A determinative question in analyzing the government's intent for a forum seems to be: Is the government's selective activity limited to defining the forum's scope and purpose, or does the government retain greater discretion over choosing speakers and their speech? (See my filteReality site for excerpts from and links to Supreme Court opinions on this distinction and other issues.)
For a writer or publisher of books, a library's collection is obviously a non-public forum. The library is petitioned for access to a bit of shelf space through advertisements, catalogs, the submission of books to reviewers, etc., and approval is granted when something is selected for acquisition. A writer has no general right to have her work made available as a part of the library's collection, even if she donates a copy; every decision about whether something is added to the library shelves is made by the library.
On the other hand, the library probably has made its public Internet facilities generally available to website owners by allowing authors and publishers to display their work at the direct request of a patron, without first asking the library for approval. The library has thus opened a public forum in its provision of Internet access.
This doesn't mean that libraries must take an "anything goes" approach to the Internet. A library may place time limits on patron Internet use, prohibit the use of its equipment and connection for illegal activities (many people are unaware that ALA recommends that libraries prohibit illegal access to obscenity and child pornography), open the forum only to certain file formats (e.g., nothing but HTML and text files may be viewed), refuse to install media players or other software, and establish other viewpoint-neutral restrictions on Internet access (see http://www.ala.org/alaorg/oif/
internet.html).
In short, the library may limit the scope and purpose of its designated public forum of Internet access, as long as those limits don't discriminate based on the views presented by the authors.
There's nothing wrong with making filtering software available as a patron-selected option (other than a possible waste of money), and filter technology implemented with tremendous care and attention might be used to enforce viewpoint-neutral restrictions.
However, it's another matter for legislation or library policy to require patrons to use a filter designed to block sexually explicit content. It seems likely that courts will continue to find mandatory porn filtering unconstitutional, as the federal trial court in the Loudoun case did a few years ago (see http://techlawjournal.com/courts/loudon/
81123op.htm), considering that ...
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sex-related material which isn't obscene, child pornography, or harmful to minors (as defined by statute) is protected by the Constitution;
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judicial (or at least quasi-judicial) proceedings are required to determine that a publication falls into a category of unprotected speech, and convenience is not an excuse to restrain speech prior to that determination;
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a good argument can be made that blocking out non-obscene sexually-explicit material is a form of illegal viewpoint discrimination: sex, like the religion discussed in Rosenberger v. University of Virginia, provides "a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered" (see http://caselaw.lp.findlaw.com/scripts/getcase.pl?
court=US&vol=000&invol=u10270);
Pro-filter arguments all lead to dead ends: A library would have difficulty pushing a claim that the viewing of sex-related content isn't consistent with the broad purpose it intended for Internet access, and it would be laughable to argue that the library's Internet connection is intended to be used only to view content similar to that in the print collection. Sexual harassment of library staff is a genuine concern, but it's one the library must address in the manner which places the least restriction on patrons' and authors' rights of free expression.
The availability of other venues isn't a valid reason to deny access to a public forum, so the argument that patrons can go somewhere else to view blocked content won't fly. Alternatives such as allowing patrons to ask that the filter be turned off on a case-by-case basis, or to request that specific sites be removed from the filter's blacklist still place a discriminatory burden on protected speech. Also questionable is the underlying premise of filtering: that a library is permitted to farm out the initial decision that a website is inconsistent with the library's purposes.
All the documented instances of filters erroneously classifying websites as pornography are just icing. The cake is the fact that few of the sex sites "correctly" blocked by filters (according to their own criteria) have been ruled unprotected speech in court. The core of the constitutional argument against mandatory filtering doesn't depend on the shortcomings of current filtering technology, but on the right of access to a designated public forum.
COOL QUOTE
I think it's fair to ask how parents who feel that reading a review before driving their kids to a movie theater is too much work ever manage to pull off the greater responsibilities that parenthood entails. What amazed me during this discussion was that the parents seemed completely willing to abandon their responsibility to be informed about the culture their kids were growing up in to some anonymous watchdog.
Charles Taylor. "The Morality Police." Salon, June 11, 2001 http://salon.com/books/feature/2001/06/11/
children/index.html
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Copyright, Marylaine Block, 1999-2001.
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