Limiting Web access: the view from atop the fence

December 13, 2003

I rarely have difficulty taking sides in a matter of opinion, which is a good thing considering what my job is. But every now and again I find myself on both sides of a topic at once, which is like looking at one of those illusions that can be seen in more than one way, like the Necker cube or the picture of a pretty young woman who turns into an ugly crone.

The First Amendment Center at Vanderbilt University, a project of the Freedom Forum, has just reminded me of one such issue by sending along a report by David Sobel titled "Internet Filters and Public Libraries" (search for "Sobel" at www.firstamendmentcenter.org on the Web).

Sobel examines the history of congressional attempts to limit children's access to the parts of the Internet that aren't suitable for children -- there may be plenty of disagreement about where the lines should be drawn, but I suspect most parents of young children agree there oughta be a line.

The first restrictive attempt was the 1996 Communications Decency Act, overturned by the Supreme Court a year later on the grounds that it went too far in limiting what adults had a First Amendment right to read. I'm on board with that decision.

The second try was the Child Online Protection Act, passed in 1998, which bars commercial Web sites from displaying material harmful to minors. In 2002, the U.S. Supreme Court sent it back to the lower courts, leaving in place a ban on enforcing it. In March, the 3rd Circuit Court of Appeals again ruled it unconstitutional on the same grounds. Right, so far.

Meanwhile, Congress tried a different route. In 2000, it passed the Children's Internet Protection Act, which required libraries that received federal funds to install filtering software to block obscene materials, child pornography or content harmful to minors. By a 6-3 vote in June 2003, the U.S. Supreme Court said that was constitutional. I guess that's right (she says dubiously) but I am less sure that it is good policy.

You may know that I normally inhabit the absolutist end of the free-speech spectrum. Indeed, I'm of the opinion that the court's 5-4 decision to uphold most of the McCain-Feingold Campaign Suppression Act will one day be ranked as among its most misguided, on a par with Grutter v. Bollinger, about affirmative action at the University of Michigan Law School (and we have Sandra Day O'Connor's profound lack of principle to thank for both of them).

But there is a lot of genuinely vile stuff on the Internet, material that libraries would certainly not choose to obtain in any other way even though it was constitutionally protected. And parents who monitor their children's Internet use at home -- by the way, I hope that is all parents, at least until they're sure their children are old enough to cope with what is coyly called "mature content" -- quite reasonably are uncomfortable with the idea that there may be no restrictions on what children might see when they go to "story time" at the local library.

I tried out on myself the argument that it would be perfectly appropriate for libraries, on their own initiative, to decide to install filters, but that it is inappropriate to use funding threats to force a ban on them when they would prefer not to have one. Library groups, who opposed the act, made that argument. But constitutionally, the argument doesn't work; libraries, as much as Congress itself, are part of the government, so if a library can decide to have filters, then Congress can tell them they have to.

Now mostly I think funding threats are inappropriate, for instance withholding highway funds until states conform to federal nannying about blood-alcohol levels. But that's our own money they're refusing to give back to us; this is more like grants from the National Endowment for the Arts. The artist certainly has a First Amendment right to go on stage smeared in chocolate but no right to funding for it. Libraries don't have to apply for money for Internet services if they don't like the rules.

In upholding the filtering requirement, Chief Justice William Rehnquist observed that library patrons can gain access to filtered material by asking a librarian to unblock a site or disable the filter. If they're too embarrassed to do that, well, too bad. "The Constitution does not guarantee the right to acquire information at a public library without any risk of embarrassment," Rehnquist said.

One big problem is that the filters tend not to work very well, blocking not only material library patrons ought to be embarrassed about, but other entirely respectable sources for, say, medical information about certain body parts. Also, the user may not know what sites are being blocked, or what the criteria are, so he won't know enough to ask for the filters to be disabled.

And now I've written a whole column about this and I still don't know what I think.