Child Internet Protection Act case

Bradley P Jacob bradjac at REGENT.EDU
Tue Nov 12 14:27:22 PST 2002

Child Internet Protection Act caseI disagree with the trial court and
Eugene, because I don't buy the distinction between internet and print

The decision about which books to buy, the court said, is necessarily a
selective decision, in which only a small fraction of all possible books are
chosen (based on quality, topicality, accuracy, and so on). It's not a
situation where "the government opens a forum for virtually unrestricted use
by the general public for speech on a virtually unrestricted range of
topics"; a library's possible collection is, sadly, all too restricted. But
the decision to provide Internet access is generally a decision to provide a
vast range of material, without any up-front selection -- except for the
prohibited selection process of choosing which material to then exclude.

Eugene, suppose hypothetically the existence of a local public library with
unlimited space and finances; perhaps an unbelievably wealthy sugar daddy
who agreed to pay for all materials that the library would ever want to
purchase (and additions to the building to house them, if necessary).  Every
book in the Library of Congress, every periodical known to man --
everything.  Would it follow from that that the library must include
everything on its shelves; specifically, that it must carry Playboy as well
as Newsweek?

I believe that the library clearly has discretion to not acquire some
materials, even if money is not limited, and that the list of what it may
reject is not limited to constitutionally-unprotected obscenity or child
pornography.  Why?  Because a library's provision of resources is not a
function of free speech.  Authors of books, publishers of periodicals, and
creators of websites have no constitutional right to have the government
place their products in front of citizens.  And citizens have no right to be
provided free access by the government to their chosen form of
entertainment.  There is a big difference between being free to purchase
Playboy and read it in my home, and being able to require the government to
provide Playboy at the public library -- and the difference is much more
fundamental than limited funds.  In establishing a library, a community
chooses to make certain resources available to all at public expense because
of a shared belief that access to those resources benefits the community.
And the community, through appropriate public process, may make decisions
about what kinds of materials benefit the community without raising First
Amendment concerns.  A library is not a free speech forum.

I am willing to consider the possibility that SOME choice-of-resource
decisions by a public library might be unconstitutional -- if, for example,
the library board systematically chose materials to advance a racist agenda
or establish a particular religion.  But internet filtering to eliminate
offensive or adult materials does not implicate any constitutional concerns.

It's similar to issues raised in the debate over NEA funding for "art" in
the crucifix-in-urine genre:  The right to create it does not suggest the
right to have the government pay for it, and it is not censorship for a
community to refuse to sponsor that which most citizens find offensive.
Library patrons have free speech rights if they stand on the sidewalk
outside the building and share their views, but they do not have "free
speech rights" in what is provided in the library's shelves and computers --
regardless of financial limitations.

BTW, Mike Farris and I offered to represent the Loudoun County Library pro
bono if it would appeal the Mainstream Loudoun decision to the 4th Circuit,
where we fully expected to win.  The library board, for whatever its
reasons, declined our offer.


-----Original Message-----
From: Discussion list for con law professors
[mailto:CONLAWPROF at]On Behalf Of Volokh, Eugene
Sent: Tuesday, November 12, 2002 1:20 PM
Subject: Child Internet Protection Act case

        The Supreme Court has just noted probable jurisdiction in the Child
Internet Protection Act case, U.S. v. American Library Ass'n, see
602A for a brief description and a link to the decision.

        Any thoughts on what the result should be?  Recall that the question
is whether the federal government may mandate that public libraries filter
Internet access when the access is provided using federal funds; the lower
court said that it may not, and that in fact public libraries themselves
couldn't filter access, at least except on child-only computers.


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