Child Internet Protection Act case
Michael Froomkin - U.Miami School of Law
froomkin at LAW.MIAMI.EDU
Tue Nov 12 15:06:43 PST 2002
But surely one distinction this account below ignores is what constitutes
the default. I.e. I start with an empty library, the default is 'no
books'. I buy the books one at a time. There is no cost or effort
involved in not having any given book; there is effort in acquiring one.
On the other hand, my original default is "no Internet". Then, once I get
access, I have "all Internet" (akin to "magically duplicate library of
congress"). Then I have to buy blocking/filtering -- akin to "throw out
some of the books"? Even if the block/filter software is donated, I still
have to make an affirmative decisions to remove things. If nothing else,
that means any justification based on scarcity of resources is gone -- now
I have to justify it some other way .... and in the absence of scarcity,
shouldn't that be a content-neutral way?
In case you wondered, I also disagree with this statement, which I find
>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.
Deciding to exclude certain types of speech which it would have no cost to
include on content-based grounds from public property is surely a first
amendment issue, however much you dress it up with process and democratic
values. To say it's a first amendment issue isn't necessarily to answer
the question, but it does define the relevant tests and analysis.
On Tue, 12 Nov 2002, Bradley P Jacob wrote:
> 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 listserv.ucla.edu]On Behalf Of Volokh, Eugene
> Sent: Tuesday, November 12, 2002 1:20 PM
> To: CONLAWPROF at listserv.ucla.edu
> 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.
Please visit http://www.icannwatch.org
A. Michael Froomkin | Professor of Law | froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm
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