Child Internet Protection Act case

[M. Pollack]

Professor Jacob's response turns on looking for a "speaker."  As he
points out, if CIPA turns on a "speaker," the speaker is the government
& Rust seems to require holding the act constitutional. But IMHO,
libraries are the perfect spot to actually consider basic First
Amendment principles-- the need for an informed populace for a
Madisonian democracy. The central concern in libraries is not some
"speaker's" choice of messages, but the public's access to information &
opinions.  A library is a resource for "listeners", not an outlet for
"speakers."  Of course, the Court recently has not been very accepting
of the speakers' First Amendment  in the communication media cases, but
hopefully, the absence of a "speaker" in libraries will come to the
Court's attention.

Bradley P Jacob wrote:
>
> Rosenberger turned on the fact that UVA created a limited public forum for
> speech by students and student groups.  It did this by providing funding to
> these student groups to communicate various messages.  Since the
> governmental body had created this forum, the Court held that it was
> unconstitutional to restrict access to the forum based on the religious
> content of the speech.
>
> In the public library context, there is no speaker to stand in analogy to
> Ron Rosenberger.   I would argue that Rust is a better precedent than
> Rosenberger for public libraries.  A government entity is providing a set of
> resources to its citizens; it is not offering to fund or facilitate citizen
> speech.  That set of resources is usually pretty expansive, because the
> message that the public body intends to communicate is a broad one -- the
> importance of having a well-educated, literate citizenry.  But there are
> limits.  The library's collection is still a governmentally-chosen message
> rather than a public forum.  I have no constitutional right to walk into my
> library and demand that they place a particular book on the shelves.  And if
> it is not a public forum, then, as I suggested before, scarcity (or
> non-scarcity) of resources shouldn't matter.
>
> This is also my response to Prof. Froomkin's point:  I will freely concede
> that the "defaults" on books and internet filtering are completely
> different.  Yes, filtering requires an affirmative act, while failing to
> purchase a book is passive.  But if a library is a Rust-type government
> resource rather than a public forum for free speech, I don't see why that
> makes any difference.
>
> -----Original Message-----
> From: Discussion list for con law professors
> [mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Mark Tushnet
> Sent: Tuesday, November 12, 2002 2:54 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Child Internet Protection Act case
>
> In response to Brad Jacob:  In light of Rosenberger, it seems to me that
> all the work in his analysis is done by this -- "internet filtering to
> eliminate offensive or adult materials does not implicate any
> constitutional concerns."  I wonder if he could spell out the reasons
> for this conclusion.  That is, it seems to me, at least initially, that
> "eliminating offensive or adult materials" is the kind of content-based
> decision that Rosenberger says governments can't make when they allocate
> (even limited) funds.  What's the argument the other way?

--
Malla Pollack
Visiting Associate Professor
University of Memphis, Law
mpollack at memphis.edu