Thursday, April 4

Britney Gone Wild: I Won't Defend to the Death Your Right To See It.

Now, I'm not foolish enought to get dragged into a constitutional law debate with Lane McFadden, but I would like to respond to his most recent post about the censoring of pornography in public libraries. The language of the Children's Internet Proctection Act ("CIPA"), particularly that defining material harmful to minors in Sec.1703(C)(2), is substantially the same as language approved by multiple Supreme Court decisions upholding anti-child pornography statutes and will therefore, as Lane noted, probably pass Constitutional muster under current doctrine. The deeper question, as always, is whether the original meaning of the First Amendment itself actually allows for such censorship. Of course it does. The broad protection afforded to pornography, nude dancing, and other expressive images and conduct would have been appalling to the authors of the First Amendment and no one alive at the time would have interpreted the Amendment as applying to those forms of expression.

There is also the interesting problem of the article "the," which precedes the words "freedom of speech, or of the press." As others more learned than I have argued before, the phrase Congress shall make no law . . . abridging the freedom of speech, or of the press" did not foreclose government censorship at all, it merely codified the existing level of free speech as a Constitutionally mandated minimum. Under this reading, which I find very persuasive in light of the context surrounding the enactment of the original Constitution and the Bill of Rights, there can be no doubt that viewing pornography in public libraries, which was not an established freedom in 1791, can be prohibited. Whether Congress can do so under its narrowly enumerated powers is another question.

None of this, however, answers the policy question of whether the law is a good or a bad idea. I favor the broad protection of speech, but don't have a particular problem with preventing library patrons from taking up computer space by ogling porn on taxpayer funded computers. I certainly don't think that crying "totalitarianism" or "oppression," as librarian Anne Lipow apparently did, to be at all helpful. Comparing this sort of legislation to Soviet-style repression is just ludicrous and undermines any credibility she may have had before she opened her mouth.

Lane, however, raises a more relevant and important point. The inability of current software filters to distinguish a legitimate medical website from hard-core pornography that would embarrass an ex-president is a real problem. Until that problem is solved, filters in libraries are probably overkill, but CIPA recognizes this possibility and, therefore, provides for 18 months during which the NTIA will study this and related problems. (Sec. 1703). In the mean time, I question why the government needs to waste money on software filters when it is already employing able librarians. A periodic patrol of the computer stations by a fusty octogenarian should do the job nicely.