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CIPA

September 15, 2003

Last week, I had occasion to read a recent Supreme Court decision that affects some libraries. Local high school teacher Ed Lambert happened to have been there on a summer fellowship when the decision was announced, so we’ll have to chat.

The case tested the constitutionality of the Children’s Internet Protection Act (CIPA).

When I met last week with a committee to discuss CIPA and the needs of Colorado libraries, a friend suggested that the opinions were quite fascinating for what they got right — both the plurality and the dissenters — about the nature of public libraries.

So, I downloaded a copy of the opinion from Findlaw.com. There is some good reading in Supreme Court decisions.

The legal style might put you off, but much of the analysis is quite straightforward and insightful.

It’s not necessarily commonsensible, and good thing, too, since “common sense” can be nonsensical upon inspection. For many people, “common sense” really applies only to a small world — their world. The world of the Supreme Court is very much larger.

The CIPA case looks at legislation that requires recipients (schools and libraries) of certain federal aid to use “technological” measures to block obscene or pornographic images from being displayed on Internet workstations.

A district court ruled that the law abridged First Amendment rights in several ways and was thus unconstitutional. The Supreme Court reversed this judgment.

The justices, both for and against, offered a variety of opinions on the matter. I enjoyed finding that both concurring and dissenting justices recognized that libraries rightfully enjoy a broad discretion to select materials. Then, both sides used this fact to their advantage in their arguments.

I also enjoyed the discussions about whether or not Internet blocking is in principle equivalent to book selection and thus business as usual.

The attempt to balance the degree of “speech-related harm” with the “legitimate objective of the act” made an interesting argument. There are no absolute and inarguable rights. Thus, we argue.

The concurring justices saw that the “speech-related harm” was small in proportion to the successful accomplishment of the law’s objective. Dissenters saw it as disproportionate, especially given the success of other options in use for accomplishing the objective of protecting children, as well as the imperfect ability of current technology to accomplish the objective.

The plurality upheld the law based on a vital point of interpretation: that the filters, whatever they are, can be turned off upon request, thus protecting access to constitutionally protected content that might be improperly blocked.

In this opinion, library users are not unduly burdened anymore than when they are required to use interlibrary loan or to have librarians retrieve materials from closed stacks.

I found the dissenting opinions more interesting, and not because I have a strong opinion about the constitutionality, which is a complicated argument. CIPA may well be constitutional by any account. I just think it’s a poor law, as well as unnecessary.

The discussions included insightful comments about the place of libraries in our society and on the nature of the work done in them.

By the way, Findlaw.com features selected cases Supreme Court cases. When I looked, the featured case was “The Amistad, 40 U.S. 518 (1841),” which concerned slaves who took over their captors’ ship in 1839 and were eventually seized off Long Island. Good stuff, certainly enough to make a movie, and it’s solidly American history.

I can’t imagine they’ll ever make a movie about CIPA, but who knows? In 160 years, it might make good conversation.

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