Rochester Library to extend Web ban as it writes policy

Authority
Does she really have that authority? Where I live the the independent board would simply remind her of the requirement to maintain continuity of funding. Failing to maintain her current level of funding to the library would place the county in violation of state law. Being in violation of state law means the county no longer qualifies for state money until they have an approved remediation plan. This protects independent agencies from tirades by funding bodies. What if she decided that the library would hire her husband as director and implied cutting funding to encourage the hire? Independent agencies must remain independent.

PS
SInce the library is in compliance with the law I further question her authority to supplant federal/state law with her own whims.

PSS
Wasn’t she a former employee of the tv station who brought this to her attention? Tit for tat?

Re:The county executive is right.
Calling it a majority opinion is unfair because it is only 4 justices in the opinion. Technically it is a plurality opinion.

That said, COPA has been overturned a number of times (most recently in 2002) and CIPA (the law at issue in ALA v. US) only mandates filtering for Federal grants, not library operation. It could easily be argued that shutting down the library is a violation of the residents First Amendment rights (library access being maintained in several cases to be a right).

It is indeed a slippery slope argument.

I would point out that pornography is protected speech where obscenity is not. Where is the line? Well, to quote Justice Potter Stewart “I know it when I see it.”

CIPA No Support for Mandatory Filtering

The CIPA decision does not stand for the proposition that a library can impose mandatory filtering on its patrons.

First, it is a plurality decision, which means that no one opinion gained 5 or more votes from the justices. For example, the Rehnquist quote cited by mdoneil (based on material from a 1930 text on librarianship) was only backed by four of the nine justices, and NONE of the remaining five justices adopted his reasoning in their concurrences or dissents. No court would treat it as binding precedent, especially if the law and the facts at issue dictated a contrary decision.

Moreover, Rehnquist himself noted that First Amendment concerns were addressed by the law’s provision that libraries unblock or disable the filter:

Assuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled. When a patron encounters a blocked site, he need only ask a librarian to unblock it or (at least in the case of adults) disable the filter. As the District Court found, libraries have the capacity to permanently unblock any erroneously blocked site, id., at 429, and the Solicitor General stated at oral argument that a “library may … eliminate the filtering with respect to specific sites … at the request of a patron.” Tr. of Oral Arg. 4. With respect to adults, CIPA also expressly authorizes library officials to “disable” a filter altogether “to enable access for bona fide research or other lawful purposes.” 20 U.S.C. s 9134(f)(3) (disabling permitted for both adults and minors); 47 U.S.C. s 254(h)(6)(D) (disabling permitted for adults). The Solicitor General confirmed that a “librarian can, in response to a request from a patron, unblock the filtering mechanism altogether,” Tr. of Oral Arg. 11, and further explained that a patron would not “have to explain … why he was asking a site to be unblocked or the filtering to be disabled,” id., at 4. The District Court viewed unblocking and disabling as inadequate because some patrons may be too embarrassed to request them. 201 F. Supp. 2d, at 411. But the Constitution does not guarantee the right to acquire information at a public library without any risk of embarrassment.4 (see U.S. v. ALA

Rehnquist’s language does not suggest that the library has the “option” of unblocking – it suggests that it must unblock Constitutionally-protected websites or disable the filter, or face a First Amendment challenge to its actions. Indeed, the FCC order mandating libraries to adopt filters in the wake of the CIPA decision instructs all libraries using e-rate to adopt policies to facilitate the unblocking of websites or disabling of the filter at the request of the patron:

9. On June 23, 2003, the Supreme Court issued its opinion reversing the judgment of the
District Court and finding that CIPA, on its face, is constitutional. The Supreme Court found
that CIPA does not induce libraries to violate the Constitution because public libraries’ Internet
filtering software can be disabled at the request of any adult user and, therefore, does not violate
their patrons’ First Amendment rights. In upholding CIPA, the Supreme Court emphasized “the ease with which patrons may have the filtering software disabled,” and that a patron who encounters a blocked site … need only ask a librarian to unblock it (or at least in the case of adults) disable the filter.” The plurality also highlighted the government’s acknowledgment at oral argument that “a patron would not ‘have to explain … why he was asking a site to be unblocked or the filtering to be disabled.'”27

11. …In order to comply with the statute’s Internet filtering requirement, many libraries must prepare a budget for the purchase of software and related costs, design, procure and/or order software appropriate for their systems, install the software and implement a procedure for unblocking the filter upon request by an adult. See FCC Order 03-188, In the Matter of Federal-State Joint Board on Universal Service Children’s Internet Protection Act, July 23, 2003

A more proper interpretation is that CIPA is constitutional solely because it requires libraries to unblock or disable the filter for adult users. And given that the two concurring votes to uphold CIPA did so on the grounds that the law, as represented and interpreted by the Solicitor General, requires libraries to promptly unblock sites or disable filters at the request of the patron, it’s a facile misrepresentation to say that the CIPA decision endorses mandatory internet censorship in the library. Read Justice Kennedy’s concurring opinion, that all but invites a new lawsuit should a library fail to unblock or disable the filter:

If, on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay, there is little to this case. The Government represents this is indeed the fact… If some libraries do not have the capacity to unblock specific Web sites or to disable the filter or if it is shown that an adult user’s election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge, not the facial challenge made in this case. See US v ALA, Kennedy Concurrence.

Indeed, the North Central Public Library System in Washington State is presently being used precisely because it refused to provide access to Constitutionally protected materials blocked by its filter.

One should note that the only court decision that evaluated the Constitutionality of a public library’s mandatory filtering policy, Mainstream Loudon v. Board of Trustees of Loudon County Library found mandatory filtering unconstitutional. That decision was NOT overturned by the CIPA decision.

Anyone who would contend that it is legal for publicly funded libraries to censor Constitutionally protected material published on the Internet might usefully explain why it is illegal and unconstitutional for public libraries to place books like “Daddy’s Roommate” and “Heather Has Two Mommies” on restricted shelves (see Sund v. City of Wichita Falls) or illegal and unconstitutional for a school library to require a child to have a parent’s written permission to see “Harry Potter” (see Counts v. Cedarville School District) and why it is constitutional to block access to legal Internet sites that are otherwise freely available through the library’s existing Internet access at no additional cost to the library, especially in the absence of a reasoned decision to exclude the materials based on a written collections development policy.

None of this is to say that filtered Internet access shouldn’t be available as a choice for both children and adults. But a public library that blocks users’ access to Internet materials solely because some commercial software company says that the content might fall into a category of illegal speech or even potentially controversial LEGAL speech, is not only risking a lawsuit and practicing censorship, it’s abandoning its professional responsibility.

Re:CIPA No Support for Mandatory Filtering
Isn’t it a collection decision itself to offer access to the Internet as a whole? Does the library sit down and approve each and every article or image contained in a purchased database? Do you slice out photographs from magazines and books that you consider unsuitable?

If, in fact, the libraries were making reasoned decisions about websites, I might be willing to agree that decisions to block (“not acquire”) certain websites would be appropriate. But libraries aren’t doing this – they’re ceding decisionmaking (“collection development”) to commercial filtering companies that often work openly with groups like American Family Association and Focus on the Family to set up their censorship categories, which go far beyond sexually explicit websites (many of which, by the way, are legitimate sources of information about contraception and sexual health.)

And I flatly disagree that Rehnquist’s four justice opinion serves to justify mandatory filtering in the library (go search Lexis – there’s at least 8-10 recent law review articles criticizing his reasoning and explaining why it’s unsupported in the law.) As a plurality decision, the narrowest interpretation is the one that will be used by the courts. The library may not be a public forum for a particular author or speaker (Rehnquist’s theory) but it is certainly a designated public forum for the receipt of information and ideas for patrons, whose own Constitutional right to receive information cannot be burdened by state censorship (not considered by Rehnquist at all.) That’s what Kennedy was saying – when the library user can show that the public agency is preventing access to Constitutionally protected materials that would otherwise be available, it is likely that the agency will be held responsible for violating the user’s Constitutional rights (just as the libraries in Wichita Falls and Cedarville were held liable for “hiding books.”) Thus, to avoid liability under the Constitution, the library must have in place policies that allow for unblocking or disabling the filter, as the FCC itself recognized and required.

And frankly, the problem with saying “porn” all the time is that your porn may be my sex ed and information website, or my fine art website. We see this all the time – I doubt that even you would dispute that Toni Morrison’s “Beloved” is literature, yet there was that group that filed a complaint with local and federal prosecutors complaining that it was obscene. Should that group’s values dictate the library’s “collection development” policy, or should there be a broader policy in place that recognizes the vast range of interests and opinions of library users?

The Internet is a resource that the Supreme Court itself has granted full First Amendment protection. With appropriate policies in place, the presumption should be that library patrons are capable of using it to find the information they need without a nanny standing over them, and that it’s a good thing to have such a vast resource available for the library’s users.

Re:CIPA No Support for Mandatory Filtering

Sorry that “my overlong posts” which provide the underlying basis for my statements bother you. I try to avoid making unsupported arguments; I assure you that I do know what I am talking about.

You said: The Internet can no more be granted First Amendment Rights than my cat. The FCC is not the arbiter of law.

Well, good thing for those of us who believe in the Bill of Rights that the Supreme Court disagrees with you. It was a 9-0 unanimous decision, Reno v. ACLU, that granted full First Amendment protection to the Internet:

“…the Internet can hardly be considered a “scarce” expressive commodity. It provides relatively unlimited, low cost capacity for communication of all kinds. The Government estimates that “[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999.” This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, “the content on the Internet is as diverse as human thought.” We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.

— Reno v. ACLU,117 U.S. 2329 (1997)

And whether you like it or not, Congress explicitly gave the FCC authority to implement and administer CIPA, that, is, to be the “arbiter” of the law.

You also said earlier: “It is important to note that the library, may, but not shall nor must, unblock.” Forgive me for assuming, based on this statement and others like it, that you believe that publicly funded libraries are free to block access to Constitutionally-protected websites on the Internet, whether the blocking takes place under CIPA or otherwise.

My point is that unblocking or disabling the filter on request is NOT an option for the publicly-funded library under the First Amendment, whether under CIPA or otherwise. Materials published on the Internet get the same protection as books. Libraries that block access without providing the option of disabling risk lawsuits – and, as demonstrated by the investigation in Rhode Island and the lawsuit in Washington State, the ACLU is willing, no, eager, to go after libraries that fail to unblock or disable filters.

We appear to agree that the public library has a binary option: provide access to the Internet, or not. But given the weight of legal authority, once the library provides access to the Internet, content-based censorship of protected materials on the Internet is Constitutionally problematic. Claiming that libraries can censor Internet access under the rubric of “collection development” is intellectually dishonest when, in fact, the library is not making any collection development decisions at all, but instead passing the buck to a privately owned filtering company that doesn’t make decisions under any kind of professional standard (and indeed, often fails to provide any rationale for its blocking decisions because that’s “proprietary information.”)

And unfortunately, too many people CAN’T or WON’T distinguish between sex ed materials and Hustler, and try to make their views policy in the public library, relying on over-generalized statements like yours to back up their demands.

Finally, as long as hands are on the keyboard and eyes are on the screen, I don’t give a damn what a person is reading on his or her computer. It’s the same money if they’re reading CNN or not. If I can’t tell what he or she is reading and he or she looks like any other computer user in the library, it’s fine by me, until they start engaging in illegal activity.

Re:CIPA No Support for Mandatory Filtering
You are the one so invested in your viewpoint that you attribute arguments to those who disagree with you that they never make. At least I provide actual support for my statements.

As for the rest, go quarrel with the nine Supremes; they’re the ones who said the Internet has full First Amendment protection. I am precise: I noted that the First Amendment protects library users’ access to Constitutionally protected materials on the Internet. Obscenity is not constitutionally protected. But sexually explicit content does fall into the category of protected speech, as the Supremes noted in the Sable Communications decision. Unless and until a court declares materials obscene, they’re protected. Look how often the Supreme Court’s struck down laws trying to prohibit or regulate sexually explicit content on the Internet as plainly unconstitutional.

Filters are not fine in the public library; it’s a public agency obligated to operate under the First Amendment (and any free speech clause in the State’s constitution, as well.) Go tell someone that they can’t access “Women and the Second Amendment” because the filtering software company you use to block access to the dreaded “porn” says it’s a bad site, and see how that argument holds up in front of a court.