The Great Change: Turning Cathy into a Lawyer

I'm not so sure its the same. Both you and the Iraqis get uncensored access to the internet if you pay for it (ie don't rely on a service paid for by a federal subsidy). If you go to a library, and use a federally subsidized internet program to access the web, then you get censored access unless you ask that the censoring be turned off. If an Iraqui goes into a library they discover that it no longer exists because it has been destroyed. How are they better off?

In 2 lines I wasn't able articulate a full argument, but see the June 23 post for more detail about my position on CIPA.

In the 2 lines I wanted to simply point out the irony for us to be lauding ourselves for having brought civil liberties to the Iraqis (which is itself debatable, but that's for another post another day), while at the same time we're hard at work undermining them at home.

Of course, there is also the subtext: if we think free and unfettered access to the Internet is a benchmark for freedom of expression, how can we justify not allowing free and unfettered access for all of our citizens? Yes (currently) people can pay an ISP and get free and unfettered access (more or less... but again, that's for another post another day) but what of the people who cannot afford to pay? Lots of poor people use the library as their only access, and why shouldn't they also be entitled to free and unfettered access?

And as my previous post discussed, I also think the imposition on free expression is particularly born by the publishers. The article didn't discuss the Iraqis' ability to self publish within Iraq, but on the other hand their sites would be subject to the same censorship in the US. Does their freedom of speech end at our borders?

I guess I still don't see the analogy... The article doesn't say that the Iraqi occupation government provides government subsidized internet access free of porn filtering requirements, only that the Iraqi occupation government (unlike the prior Iraqi regieme) does not censor private, unsubsidized, use of the internet.

However you might feel about CIPA, I don't think that you can read it to censor private, unsubdidized use of the internet in the United States. At most, it censors federally subsidized use of the internet (and, as limited by the Supreme Court opinions, I don't believe it even does that).

Thus, unless you read the article about Iraq to mean that the Iraqi Government provides uncensored publicly subsidized internet access, I don't think the main thrust of your thesis is correct.

As for your last comment-- No, I don't think an Iraqi publisher, or an American publisher for that matter, has a right to reach people in libraries. The only question is whether the library user's right to free speech (or more properly right to receieve free speech) is unduely burdened by a requirement that an adult user of a library ask the librarian to turn off a filter.

I'm not going to dwell on the comments about Iraq because I think we are talking (typing) past each other on that point and I think there are more important points to be made.

I'd rather respond to two things you wrote:

However you might feel about CIPA, I don't think that you can read it to censor private, unsubdidized use of the internet in the United States.

I think it does EXACTLY that, but before I go on let me apologize; I wrote two things about CIPA on the 23rd, my post and a separate email. In my last comment I referred to arguments that I actually made in the email (and how could you possibly know what they are!). I'll cite from my email to clarify some of my thinking:

... If public money was spent to connect libraries to the Internet but then someone's site was prohibited from being published* to the Internet then I think [that publisher] has a legitimate [1st Amendment complaint.]

* I would make the point ... that publishing to the Internet inherently implies being available to all nodes on the Internet. If the government disallows [someone] from publishing to nodes, particularly those that were publically funded, then [that person has] been effectively censored.

[...] It might be a stretch, but I keep having echoes of Near v. Minnesota rattling around in my head. It seems to me that people who are pre-emptively blocked without ever having been deemed "obscene" through any sort of due process are victims of prior restraint.

So, yes, I think it does censor "private, unsubsidized use of the Internet" because it clearly censors content published by individuals who paid for their own access. My 1st Amendment complaints are focused more on the publishers on the Internet, but in general I think that freedom of expression on the Internet requires that both publishers and surfers be able to publish and navigate without any government interference whatsoever.

No, I don't think an Iraqi publisher, or an American publisher for that matter, has a right to reach people in libraries.

The court decision made the analogy that librarians have no obligation to stock every publisher's work. Which is true. But this can be explained away by many logistical barriers that don't apply to online content: space limitations, limited funds, time available to research and evaluate all available materials, etc. None of these restrictions apply to the "stocking" of Internet content. Librarians in fact have no need to in any way be involved with the "stocking" of content on the Internet, but CIPA forces them to be anyway by requiring that they employ some means to evaluate the content on the Internet in order to decide whether it can be "stocked" in their library. (The fact that this may be automatable by filters doesn't change the underlying flaw in this arrangement, and in fact the defects in filters exacerbate the situation.)

CIPA calls for gatekeepers to monitor what can be published to nodes on the Internet, and that's where the Iraq comparison came in. There seems to be a consensus that when Hussein put gatekeepers on the Internet that it was a Bad Thing. So why would we not think that when the US government puts gatekeepers on the Internet it's not also equivilently bad? The small print about federal funds and the "saving the children" platitudes don't overcome or forgive the damage to free speech that any sort of gatekeeping causes. No children are actually saved by this technologically ignorant policy, and where in the Constitution does it say that the government can buy the right to censor?

Sorry... I don't think that the focus on the right of the publisher works.

The publisher does have the right to (essentially) unfettered speech on (i) property he owns or controls, (ii) private property on which he or she has a license to speak (i.e. where he or she is a guest and is permitted on the property for that purpose) and (iii) public property that is a public forum.

A publisher has a right to publish whatever he or she wishes on his or her own computer (his property) and then may allow anyone access to that publication via whatever mechanism he or she chooses (ie via internet connections). However, the publisher has no right to make his or her publication anywhere where he or she does not have the right to speak. An individual may. for example, legally exclude the publishers's publication from the individual's private computer, for example. Why? Because the publisher has no right to speak on that privately owned computer.

Likewise, unless a libarary is a public forum, the publisher has no right to speek there, and, consequently, no right to publish on a computer which is a part of a library. A library is not a public forum-- it is a place where information is shared, but only as authorized by the experts who determine the library's programs, acquisitions and activities. Therefore, the publisher has no right to speak there.

That's why the question is whether the patron has a right to use the public terminal to access the information, rather than whether the publisher has a right to place his information on the public terminal.

This is not to say that I think this was an especially good policy choice on the part of the government. But I do believe it is a constitutional one. My principal concern, shared by the two concurring justices whose opinions were required to reach the holding, is that any adult user can have the filter turned off upon request without stating a reason for the request. That is how the Court interpreted the law to apply (which is an odd interpretation of the language of the law, but is, nonetheless, binding), so my concerns about the rights of a reader to reach uncensored materials are met. If a library is, in fact, making it hard to turn off the filter, then that library should be challenged, the plaintiff should win that challenger, and that opinion will create more law.

I don't think we are going to reach consensus because there's too many points and assumptions we disagree on. I'm not a lawyer yet (no kidding) and my breadth of knowledge is still limited in this area, but what I have learned so far does not jive with your analysis.

But I want to comment on one particular point you made about the library:

A library is not a public forum-- it is a place where information is shared, but only as authorized by the experts who determine the library's programs, acquisitions and activities.

Given that the experts themselves, the American Library Association, were the people appealing this law, then shouldn't they have had the final discretion in deciding whether or not to use the filters?

A wise legislature might let that be so, but unless there is a constitutional requirement that speach be allowed at a location (ie unless the location is a public forum), I'd say the government has a right to ban speech at that location.

Just as I don't have a right (as a publisher) to force a library to take my book into its collection (even if I donate it), I don't have a right to force a library to display my web site.

The argument by analogy (that internet access on a library computer is akin to the books on the shelves; if you can’t force the library to take a book you can’t force them to display a web page) seem fallacious to me. The two situations are just too different to be comparable. First, practically, a library can’t store all published books, whereas they can provide complete access to the internet. Secondly, a library with physical books is taking part in actively lending and making the content available to the public – however, the action of having a PC tied to the internet is a different activity altogether – it is providing an access point (for many people their only access point) to a critical forum of communication and exchange. The internet is not just a collection of written and other physical materials, but a dynamic communications medium that hosts live conversations, provides mail services, and other functions that quite differ from what a book on a shelf offers. These content and practical differences mean that the rights and rules for libraries and publishers of hard copy content can not be easily translated (as you attempt to do in your analogy) to providing internet access.

The thrust of your argument seems to be that freedom of speech in libraries only extends to the viewer of the content (the patron) and not the publishers of internet content. We disagree in two ways: first the publisher of internet content has a right to publish their material without government censorship if it is not obscene. Secondly, you miss the nuances of the public forum issue with respect to libraries. True they are not public forums, but rather ‘semi-public forums’ – which means that you look at the different library areas to determine if they are traditionally intended for free speech or not. In the case of the internet, this is clearly a venue that is centrally used for the expression of ideas, and as such I think should be treated as a public forum. Just as public meeting rooms in libraries have been declared public forums so too should internet enabled PC’s in a library be declared public forums.

Finally, in stating that the publisher’s rights are not relevant you fail to address what appears to me to be the glairing prior restrain problem here (previously cited by Cathy.) Specifically, do filters in libraries have the effect of preventing protected speech prior to it occurring? This can certainly be so if I want to have a conversation on-line that is hosted on a web site that is blocked by filtering software. You have to take into account that the internet is not just a static repository of information, but a venue where millions of people actively exchange ideas in web-based forums, consult with doctors through medical web sites, and establish and maintain personal relationships. Blocking access to web sites though filters can directly interfere with speech – can directly effect a prior restraint on the exchange of protected speech, in a manner that is both vague and overbroad.

This is where the analogy to publishers of books breaks down – the internet is not just a repository of book-like content but a forum where speech is being created with both the providers of content and the viewers of content. To survive the level of strict scrutiny associated with prior restraint speech restrictions the government has the burden to show that the harm that will result is very specific and very harmful – like disclosing troop movements in a time of war, but not merely that showing that the speech MIGHT have a negative impact on society generally (like having a discussion that is critical of policy decisions in a time of war.)

Sorry for the huge post - you two were having an interesting conversation so I thought I would provide my view on the situation.