My Thoughts on CIPA

Now that everyone has had a chance to digest the Supreme Court's ruling on the constitutionality of the Children's Internet Protection Act, I wanted to get my conflicting view in order. In brief:

• It is a very unfortunate law.
• The issue before the court was not local control, the quality of filters or free speech.
• The issue before the court was to what extent the library (or a library providing the Internet) is a public forum.
• CIPA was properly ruled constitutional and its impact on adults minimized.
• The ruling follows federal, state and local legislation, the actions of many library boards and public opinion.

An Unfortunate Law
Despite its name, the law goes far beyond protecting children. The law requires filters on ALL computers in libraries that use e-rate or LSTA funds to pay for Internet connections. This is a sledgehammer approach to the problem presented.

• All staff machines would have to be filtered, even those (in cataloging or at the circulation desk) that never use the Internet and at the reference desk, where filters would get in the way of doing legitimate work. After paying for these filters, they could be turned off. On staff computers, when filters are turned on, they would not prevent unauthorized uses (playing games, bidding on ebay, shopping at Amazon). 
• Most libraries can evade the requirement and will. The cost of implementing filters exceed the potential Federal funding for most libraries. The law is largely symbolic, except for libraries that most need the funding. In those cases, the benefit of Federal funds will be diminished by the cost of meeting the filtering requirements.
• As written the law applies to adults as well as children. Even a station dedicated to adults would require a filter. This shows how misnamed the law is.
• Filters are inherently flawed tools. Every filter on the market both over and under blocks. The use of keyword blocking makes this inevitable. There is no fix for this flaw. Filters will not get significantly better in the future.

The Issue was not:

• If filters are flawed. Everyone acknowledges they are.
• If the government can attach strings to funding. They can, unless those strings violate constitutional protections.
• Local control. Libraries retain local control. No library is required to filter under the law. On the other hand, ALA and ACLU have not stood for local control in the past. In a 1997 resolution (still in force), ALA said: "the use of filtering software by libraries to block access to constitutionally protected speech violates the Library Bill of Rights." Libraries that exercised their local control and decided to filter have been told in no uncertain terms that they were in violation of ALA policies. Other libraries were sued by ACLU for exercising such local control.
• If minors have a right to view everything not legally obscene for adults. Minors do not have all the rights of adults. That is why they are designated minors. Though some librarians and absolutists may object to this as age discrimination, it is law and common sense. In our society, women having sex with horses might be legal, but viewing it is considered to be "harmful to minors." This is state law in most of the country. That there is a sliding scale (harmful to seven year olds is not the same as harmful to sixteen year olds) does not mean that this is an invalid concept, merely a flexible one.

The Issue before the Supreme Court was: Is the concept of a public forum applicable to the provision of Internets services in public libraries?

The words "public forum" have a nice ring in a democracy and used by many organization in a variety of ways. In a court of law, the words have a specific meaning. In a public forum, all constitutionally protected speech is allowed and any limitation is subject to "strict scrutiny", another phrase with a closely defined meaning. Context and intent is everything in determining is a site is a public forum. The courthouse steps can be a public forum, but that does not make a courtroom one. 

In the district court, the anti-CIPA forces actually argued that the public library is a public forum. After all, ALA "affirms that all libraries are forums" and has for the last two decades. Now, this was a legal fiction. If libraries really were public forums (it is more properly "fora", but I will follow ALA's usage in this matter) , they would be required at accept every piece of print, video, etc. that showed up on their door, limited only by the amount of space available. They would be forbidden from making judgments on what to keep or discard based on quality, timeliness, usefulness to the community or any standard, since in a public forum those do not count. This was rejected by the district court, but they ruled that the Internet is a public forum and when provided in a public library, limitations on it should be subject to strict scrutiny. While they ruled out filters, they approved librarians monitoring use visually. That was considered to be stricter (more narrowly tailored). Though the legal argument that libraries are public forums was discarded in court, ACLU lawyers continued to use it in the media.

On appeal, the Supreme Court had a much narrower task than the district court. In providing Internet access, did public libraries establish a public forum within their institution? If so, many means of regulating its use were still appropriate (e.g. visual monitoring by staff, parental permission forms, banning minors) but filters were not narrowly enough tailored to pass muster. In that case, the court could have ruled that the use of filters in any circumstance in a public library was unconstitutional. If libraries did not intend to establish a public forum or if this service could not be carved out from the rest of the library, then no public forum existed and filters could be used if a local library so decided. Note that the court could have eliminated local control by striking down the law and upholding the concept that libraries are public forums.

The Supreme  Court gets it right

In their decision, the court  agreed with the district court that public libraries were not public forums. Though public libraries had used the word "forum" quite often, it was clear that libraries did not exist for the purpose of providing access to all existing speech, but to selected parts of it. Library have selection policies. They have a historical mission. They have an educational purpose. Making them into public forums would deform them beyond recognition and usefulness. 

It also was clear that library boards and local government did not intend to change the purpose of libraries. They funded and operated libraries for many reasons, but providing a public forum was not one of them. Without intent, no public forum exists.

The idea that bringing the Internet into the library created a public forum was also dismissed. The judges were noticeably disturbed by the concept. Schools have the Internet - does that make them public forums? ACLU would certainly have been back before the court to make that argument. As communications channels improve, does every government building with a network connection become a public forum? As more information becomes available electronically, does the public library slowly turn into a public forum? Rather than create such present and future chaos, the judges ruled 6-3 that the library remains a library even if it provides Internet access.

The court also got it right in limiting the effects on adults. Strings on funding have to be constitutional and placing limits on adults goes too far. Since the library is not a public forum, strict scrutiny does not apply, but limitations do have to meet looser standards. Adults can request filters be disabled and libraries better do it quickly or ACLU will be on hand to sue them.

This is the only time that the Supreme Court has addressed public libraries directly. They correctly identified them as educational institutions with an historic social mission. If they had failed to do so, it could have been catastrophic for the institution. The rest is details.

Local Control?

Oddly enough, the ruling is a victory for local control. The Congress has providing funding with strings attached that local libraries can accept or reject. Some states are doing the same. Many local government are requiring local libraries to filter. Many library board are choosing to filter some or all of the stations. This may not be the result you want, but it is local control. Our democracy in action.

It is also in accord with the vast majority of public opinion. That may be understating the situation. Except for librarians, virtually no one is in favor of using public funding to provide kids with access to smut. Many would be in favor of restrictions that would be unconstitutional. Librarians often talk about giving people what they want, but not if what they want is a library that is not a public forum or that doesn't create imaginary rights for minors.

When social conservative raised the issue of "harmful to minors", librarians mainly ignored them. It is a real issue.  No doubt, conservatives used the issue, but that did not mean we should not have been more engaged. By blowing them off, we removed ourselves from the process and ended up with a series of laws that culminated in CIPA. Taking an absolutist stance meant arguing that we have no purpose or mission and don't deserve to receive public funding. We let others frame the issue and meekly accepted our role as sacrificial lambs for ACLU. Next time we need to be more engaged, to play well with others and to get better legal advice.

Through this all, libraries have advanced some pretty shaky legal arguments on public forums and the rights of minors. These play well at conventions, when we are talking to each other. They are total losers in the courts of law and public opinion. It is not that we haven't explained ourselves. It is not that the Supreme Court doesn't care about the First Amendment. We evolved a subculture that went astray and this has been a reality check. Maybe now Schools of Information Science will begin to cover the mission of the public library and make it clear that libraries have a purpose. It is a lesson we should all know and remember.