Child Internet Protection Act case

[Bradley P Jacob]

A couple of comments below:

-----Original Message-----
From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Mark Tushnet

I'm afraid I don't get Brad Jacob's point here, particularly this one:  "A
government entity is providing a set of resources to its citizens; it is not
offering to fund or facilitate citizen speech."  I would think that the
government is indeed "offering to fund citizen speech" by creating the
library
budget to be expended on the purchase of books -- that is, to fund the
speech of
the person selling the books.  Or, put another, the author of a book (or the
operator of a web-site) "stands in [the position of] Ron Rosenberger."

==> Under your analysis, is it true that if my local library implements
internet filtering, a successful First Amendment challenge could be made not
by a local citizen, but by a distant (perhaps overseas) operator of an adult
website, since that is the person whose speech has been limited?  Would
there be standing?

On this:  "I have no constitutional right to walk into my library and demand
that they place a particular book on the shelves," I think that Rosenberger
and
Pico v. Island Trees indicate that, while true, the statement is largely
irrelevant when your claim is that they've refused to place a particular
book on
the shelves for content-based (Rosenberger) or viewpoint-based (Pico)
reasons.

==> Only, I think, if a public forum exists, and I am not persuaded that
this is true.

As to Rust, the standard argument, I thought, was that Rust involved speech
by
the government through its agents.  But that certainly can't be said of
books in
a library:  How can the government be speaking when it buys one book saying
that
William Shakespeare wrote Shakespeare's work, and another book saying that
the
Earl of Oxford (or whoever -- this isn't my field) did?  The government
sometimes speaks with a forked tongue, I suppose, but I wouldn't think that
that's the principle justifying Rust.

==> I had intended to answer this in my last post; please forgive me if it
was not clear.  A public library's message is indeed broad enough to cover
both "Shakespeare -- Yes" and "Shakespeare -- No," because the core of that
message is that it is a good thing for citizens to be well-educated, to be
challenged in their thinking, and to read a broad selection of high-quality
materials.  I know that my public library contains many books with which I
disagree; I accept that (as do citizens generally) because I/we see the very
positive value of reading, education and exchange of ideas.  However, even a
governmental message that broad has limits.