Library filtering foes lose high court’s war of words

Tuesday, June 24, 2003

WASHINGTON — The job of the Supreme Court, it has been said, is to pour new wine into old bottles — to fit new circumstances into familiar categories and precedents.

So it was no surprise that the justices, in ruling yesterday in United States v. American Library Association, searched for and found conflicting metaphors to describe what happens when public libraries offer Internet access to the populace — and then limit that access with blocking software, required by Congress as a condition for receiving federal library funds. Unfortunately for First Amendment advocates, the metaphors that made the blocking sound harmless carried the day, and the law, known as the Children’s Internet Protection Act, was upheld by a 6-3 vote.

Is the blocking requirement of the law akin to the decisions librarians make every day about which books to buy and which not to? Chief Justice William Rehnquist thought so. “Most libraries already exclude pornography from their print collections because they deem it inappropriate,” he wrote on behalf of himself and Justices Sandra Day O’Connor, Antonin Scalia and Clarence Thomas. “It would make little sense to treat libraries’ judgment to block pornography any differently.”

Or was the proper metaphor the practice in many libraries of keeping certain materials behind the desk or in closed stacks and requiring patrons to ask for them? That is the analogy that worked for Justice Stephen Breyer and, by implication, for Justice Anthony Kennedy, in light of government assurances that under the law, adult library users can ask librarians to turn off the blocking software. Kennedy and Breyer joined the majority as a result.

Forcing adults to make that “unblocking” request imposes a burden on them, Breyer said, but he added, “it is difficult to see how that burden … could prove more onerous than traditional library practices associated with segregating library materials in, say, closed stacks, or with interlibrary lending practices that require patrons to make requests that are not anonymous and to wait while the librarian obtains the desired materials from elsewhere.”

The dissenting justices offered contrary analogies, but to no avail. To Justice John Paul Stevens, requiring adults to request the unblocking of their Internet terminals at the library is like requiring “a significant part of every library’s reading materials to be kept in unmarked, locked rooms or cabinets, which could be opened only in response to specific requests.” That, to Stevens, amounts to an unconstitutional law that “prohibits reading without official consent.”

Similar concerns animated Justice David Souter’s search for the right comparison in his dissent. “The proper analogy therefore is not to passing up a book that might have been bought,” Souter wrote. “It is either to buying a book and then keeping it from adults lacking an acceptable purpose, or to buying an encyclopedia and then cutting out pages with anything thought to be unsuitable for all adults.”

To Souter and Justice Ruth Bader Ginsburg, who joined his dissent, the fact that this censorship, as he labeled it, occurs because of strings attached to federal library funding, makes it no less unconstitutional.

But the funding aspect was crucial for the majority, enabling those justices to scrutinize the law less closely than if the law imposed criminal penalties on certain Web site operators. The Court, in decisions ranging from Rust v. Sullivan to National Endowment for the Arts v. Finley, has said that when the government is footing the bill, it is entitled to favor certain speech over other speech.

Rehnquist rejected the line of cases that cut the other way, cases that arise when government creates a public forum and then discriminates against certain speakers. Reaching for another analogy, Rehnquist wrote, “A public library does not acquire Internet terminals in order to provide a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of books to speak.”

In the end, yesterday’s war of the metaphors will likely leave First Amendment advocates longing for the early days of the Court’s Internet jurisprudence, when the justices’ drew on more expansive comparisons.

Almost exactly six years ago, the Court, by a 7-2 vote, embraced a more ennobling, perhaps more innocent vision of the Internet in Reno v. ACLU.

“Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox,” Stevens wrote then. “Through the use of Web pages, mail exploders and newsgroups, the same individual can become a pamphleteer.”

Since 1997, many chat rooms and Web pages have become the denizens of stalkers and pornographers, and mail exploders have become spammers. By becoming a meaner, cruder place, the Internet itself has invited the use of less soaring metaphors and, as a result, has opened the door to regulation. Yesterday, a majority of the Court walked through that door for the first time — and probably not for the last time.

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