Internet Not Only Loser at Supreme Court

Fine for children, perhaps, but not fine for adults who use the same computer.

Blocking software is notoriously obtuse. It is virtually impossible to block child pornography without blocking innocent material.

For example, filtering software now available to libraries blocks access to the sites of political candidates, religious fellowships, hospitals and advocacy groups, including Wisconsin Right to Life.

Library, U.S. Money Yields Kids' Library

This law turned every library that took federal money into a children's library. Everything on the computer had to be fit for kids.

If an adult wanted to use the Net freely he or she would have to ask the librarian for special permission and the librarian would then unblock the filter.

The Supreme Court decided 6-3 the law would not violate the First Amendment.

Everyone agrees that children should not see pornographic material. The question is how to do it without limiting adult access at the same time.

In radio and broadcast TV (but not cable-TV), where First Amendment rights are limited, no indecent program is allowed from 6:00 p.m. to 10:00 p.m. ' children's hours.

This way children's programming and adult programs can co-exist without dumbing down all programming to the child's level, as is the case in libraries.

Even this compromise for radio and broadcast TV is unsatisfactory from a pure First Amendment point of view.

Broadcasters who wish to reach an adult audience in the daytime, cannot. Similarly, speakers on the Net who wish to reach adults in libraries unrestricted by filters, cannot.

The best solution from a First Amendment point of view, ie, the least-restrictive alternative, is to have parents supervise their children when they listen to the radio or use the Net.

When children use the Net in the library, such use would be supervised by the librarian, the child's surrogate parent there.

From time immemorial, librarians have supervised children's use of books in libraries, not the government.

Conservatives generally, and the Christian right in particular, want the government to control speech on the Net. For others, parental control is the solution. What is disappointing in the ALA case is that the court has sided with the government, not parents or their surrogates.

After all, the Net is supposed to have full First Amendment rights like newspapers, not like radio, or at least that is what the court said in its landmark case on the Net in 1997. See, ACLU v. Reno, 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997).

Why has the Supreme Court seemingly retreated from its earlier views and why did Congress even consider the law in question in the first place?

Ever since the World Wide Web came into our lives, the Christian right and like-minded persons have been attempting to control the use of sexual material on the Net.

Two previous laws, the Communications Decency Act (CDA) and the Children's On-Line Protection Act (COPA) have been declared unconstitutional. The first by the Supreme Court in Reno, supra, the second, recently, by a federal appeals court in Ashcroft vs. ACLU, 322 F.3d 240, 2003 U.S. App. LEXIS 4152 (3rd Cir., 3/6/03).

Representative Charles W. Pickering Jr. (R-MS) sponsored the library bill. He is the son of the embattled conservative nominee to the U.S. Court of Appeals for the Fifth Circuit, Charles Pickering Sr., whose appointment Democrats have blocked.

The bill was an end-run around the previous laws enacted to penalize speech on the Net.

Rather than outlawing all such speech on the Net as the previous laws did, it stated that if a library took federal money for its computers, it would have to install filters to filter all inappropriate speech out. If an adult wanted to remove the filter, he or she would have to persuade the librarian it was for a “bona fide research” purpose. And so this had the effect of turning this part of the library into a children's library. It was as though all books stacked in the open part of a library were fit for children. If an adult wanted an adult book he or she would have to prove it was for a bona fide research purpose.

A three-judge federal district court in Philadelphia did not have much trouble declaring the law unconstitutional.

'Merely Ask' a Librarian to Remove Filter

But a funny thing happened at the Supreme Court. Solicitor General Theodore B. Olson of Bush v. Gore fame told the Court that any adult who wanted a filter removed could do so merely by asking the librarian.

This answer confounded the librarians' lawyers, who were told in the lower court by a government lawyer, when asked the same question, that the filter could be removed only for a bona fide research purpose.

This answer had a decided impact on the case. Olson, effectively, had changed the law. It made it easy for the conservatives, Justices Antonin Scalia, William Rehnquist and Clarence Thomas, to vote along with Sandra Day O'Connor to uphold the law's constitutionality.

It also made it easier for Justices Stephen Breyer and Anthony Kennedy to go along with the first four. They concluded effectively, that if Olson's statement was true, the law may be not as burdensome as it seems. They left the door open for the libraries to come back before the court and show the system, as described by Olson, didn't work.

The dissenters, Justices David Souter, John Paul Stevens and Ruth Bader Ginsburg, were not impressed with Olson's concession and concluded the law was unconstitutional on its face as written.

In the meantime, Charles Pickering Jr., wins. All speech on computers in libraries that receive any funding for Internet services is censored, ie, filtered ' the first loss for the First Amendment and the Net at the Supreme Court.

The government handed the Internet its first ever loss this year in the Supreme Court in U.S. v. American Library Association , 123 S. Ct. 2297, 156 L. Ed. 2d 221 (2003).

When the Internet and the First Amendment lose at the Supreme Court, it is time to stop, look and listen.

In 2001, Congress passed a law limiting access to the Net in libraries. If a library took federal money to support its computers, it was required to use filtering software that had the effect of blocking all material not fit for children.

Fine for children, perhaps, but not fine for adults who use the same computer.

Blocking software is notoriously obtuse. It is virtually impossible to block child pornography without blocking innocent material.

For example, filtering software now available to libraries blocks access to the sites of political candidates, religious fellowships, hospitals and advocacy groups, including Wisconsin Right to Life.

Library, U.S. Money Yields Kids' Library

This law turned every library that took federal money into a children's library. Everything on the computer had to be fit for kids.

If an adult wanted to use the Net freely he or she would have to ask the librarian for special permission and the librarian would then unblock the filter.

The Supreme Court decided 6-3 the law would not violate the First Amendment.

Everyone agrees that children should not see pornographic material. The question is how to do it without limiting adult access at the same time.

In radio and broadcast TV (but not cable-TV), where First Amendment rights are limited, no indecent program is allowed from 6:00 p.m. to 10:00 p.m. ' children's hours.

This way children's programming and adult programs can co-exist without dumbing down all programming to the child's level, as is the case in libraries.

Even this compromise for radio and broadcast TV is unsatisfactory from a pure First Amendment point of view.

Broadcasters who wish to reach an adult audience in the daytime, cannot. Similarly, speakers on the Net who wish to reach adults in libraries unrestricted by filters, cannot.

The best solution from a First Amendment point of view, ie, the least-restrictive alternative, is to have parents supervise their children when they listen to the radio or use the Net.

When children use the Net in the library, such use would be supervised by the librarian, the child's surrogate parent there.

From time immemorial, librarians have supervised children's use of books in libraries, not the government.

Conservatives generally, and the Christian right in particular, want the government to control speech on the Net. For others, parental control is the solution. What is disappointing in the ALA case is that the court has sided with the government, not parents or their surrogates.

After all, the Net is supposed to have full First Amendment rights like newspapers, not like radio, or at least that is what the court said in its landmark case on the Net in 1997. See , ACLU v. Reno , 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997).

Why has the Supreme Court seemingly retreated from its earlier views and why did Congress even consider the law in question in the first place?

Ever since the World Wide Web came into our lives, the Christian right and like-minded persons have been attempting to control the use of sexual material on the Net.

Two previous laws, the Communications Decency Act (CDA) and the Children's On-Line Protection Act (COPA) have been declared unconstitutional. The first by the Supreme Court in Reno, supra, the second, recently, by a federal appeals court in Ashcroft vs. ACLU, 322 F.3d 240, 2003 U.S. App. LEXIS 4152 (3rd Cir., 3/6/03).

Representative Charles W. Pickering Jr. (R-MS) sponsored the library bill. He is the son of the embattled conservative nominee to the U.S. Court of Appeals for the Fifth Circuit, Charles Pickering Sr., whose appointment Democrats have blocked.

The bill was an end-run around the previous laws enacted to penalize speech on the Net.

Rather than outlawing all such speech on the Net as the previous laws did, it stated that if a library took federal money for its computers, it would have to install filters to filter all inappropriate speech out. If an adult wanted to remove the filter, he or she would have to persuade the librarian it was for a “bona fide research” purpose. And so this had the effect of turning this part of the library into a children's library. It was as though all books stacked in the open part of a library were fit for children. If an adult wanted an adult book he or she would have to prove it was for a bona fide research purpose.

A three-judge federal district court in Philadelphia did not have much trouble declaring the law unconstitutional.

'Merely Ask' a Librarian to Remove Filter

But a funny thing happened at the Supreme Court. Solicitor General Theodore B. Olson of Bush v. Gore fame told the Court that any adult who wanted a filter removed could do so merely by asking the librarian.

This answer confounded the librarians' lawyers, who were told in the lower court by a government lawyer, when asked the same question, that the filter could be removed only for a bona fide research purpose.

This answer had a decided impact on the case. Olson, effectively, had changed the law. It made it easy for the conservatives, Justices Antonin Scalia, William Rehnquist and Clarence Thomas, to vote along with Sandra Day O'Connor to uphold the law's constitutionality.

It also made it easier for Justices Stephen Breyer and Anthony Kennedy to go along with the first four. They concluded effectively, that if Olson's statement was true, the law may be not as burdensome as it seems. They left the door open for the libraries to come back before the court and show the system, as described by Olson, didn't work.

The dissenters, Justices David Souter, John Paul Stevens and Ruth Bader Ginsburg, were not impressed with Olson's concession and concluded the law was unconstitutional on its face as written.

In the meantime, Charles Pickering Jr., wins. All speech on computers in libraries that receive any funding for Internet services is censored, ie, filtered ' the first loss for the First Amendment and the Net at the Supreme Court.