February 16, 2016

First Amendment Hysterics: A Look at the ALA and Its Obstinate Opposition to Internet Filters on Public Library Computers

The Legal Context

The American Library Association (ALA) has been on a campaign to prevent the use of Internet filtering systems on library computers since the 1990s.[1] This campaign is carried out in the name of the First Amendment but in analyzing the ALA’s statements on the matter I find myself questioning the validity of their claims.

The ALA vehemently opposes utilization of Internet filters in opposition to the Supreme Court decisions allowing for them, which is especially ironic as the Supreme Court is the arbiter of the parameters of the First Amendment freedom they claim is at stake. In 2003, the ALA was in fact, the challenger to the Children’s Internet Protection Act (CIPA), legislation passed by Congress which allows the federal government to require use of Internet filters on computers at libraries receiving federal funds.[2] The Supreme Court upheld this statute as constitutional. The ALA’s most recent statement on this issue, “Internet Filtering: An Interpretation of the Library Bill of Rights,[3] is further wrought with inaccuracies and hysterical claims of censoring that completely disregard the health and safety of children.

First, the content restricted by Internet filters is either unprotected as to minors (“harmful to minors” material) or illegal content completely excluded from First Amendment protection (obscenity and child pornography). The Supreme Court made it clear in Ginsberg v. the State of New York,[4] that the State has such a “transcendent” interest in protecting children from harm that it may restrict materials that it reasonably believes are harmful to them. This case established the “harmful to minors” test which allows for the restriction of “any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it predominately appeals to the prurient, shameful or morbid interest of minors and is patently offensive to prevailing standards and is utterly without redeeming social importance for minors.”[5]

This test was later applied to allow for the restriction of indecent material in public broadcasting available to both children AND adults in FCC v. Pacifica Foundation.[6] The Court held that “[t]he ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.” This means that even content that is protected for adults may be restricted on public broadcasting because the need to protect children from exposure is so great.

Obscenity on the other hand, is completely excluded from First Amendment protection and the standard for obscenity was established in Miller v. California.[7] Further, in New York v. Ferber,[8] the Supreme Court held that the interest in protecting children was so vital as to require the prohibition of all child pornography (i.e. child sexual abuse images), even that which is not obscene.

Considering this case law, and even setting aside U.S. v. ALA (which allows the Federal government to require Internet filters in libraries receiving funds) why would the ALA object so strongly to illegal and harmful content being filtered in libraries?

If the Supreme Court has categorically excluded 2 out of 3 of these materials (i.e. obscenity and child pornography) from any First Amendment protection, making them illegal to buy or sell, and in the case of child pornography to even possess, advertise or solicit,[9] and the protection of children so great as to require public broadcasting (a free and important mode of education and news for the public) to be free of material that is harmful to minors, why is the ALA so concerned about these restrictions in libraries offending the First Amendment?

Why is the ALA not concerned about libraries being misused for illegal activity and becoming unsafe environments for children to learn and research? Libraries pick and choose what books they will offer, yet when it comes to the Internet there can be no limitations? It is difficult to understand why the ALA is coming to this conclusion but one thing is clear: the ALA does not believe children are truly harmed by obscene, pornographic material (or they do not care if they are) and they do not respect laws restricting access to illegal content. If the ALA truly cared about the traumatization and the possible entry into abuse and addiction that can occur when a child is exposed to pornography, they would advocate for filters to be used in order to keep libraries safe for children and to maintain an environment of public pride and learning.

It would be understandable for the ALA to advocate for the best, most accurate filters to be used and for procedures to be in place that minimize over-blocking of information, but to completely refuse to support/recommend any filtering of any kind[10] is irresponsible and disregards federal law and the Supreme Court’s consistent rulings in regard to obscenity and the First Amendment.

 


 

[1] American Library Association, “Statement on Library Use of Filtering Software,” (July 1, 1997; Rev. November 17, 2000) http://www.ala.org/Template.cfm?Section=IF_Resolutions&Template=/ContentManagement/ContentDisplay.cfm&ContentID=13090 (accessed February 16, 2016).

[2] See U. S. v. A.L.A., 539 U.S. 194 (2003).

[3] American Library Association, “Internet Filtering: An Interpretation of the Library Bill of Rights,” (ALA Council, June 30, 2015) http://www.ala.org/advocacy/intfreedom/librarybill/interpretations/internet-filtering (accessed February 16, 2015).

[4] 390 U.S. 629 (1968).

[5] Id.

[6] 438 U.S. 726 (1978).

[7] This standard is a three part test: “(a) whether the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller v. California, 413 U.S. at 24 (1973).

[8] 458 U.S. 747 (1982).

[9] See U.S. v. Williams, 553 U.S. 285 (2008).

[10] http://www.ala.org/advocacy/intfreedom/librarybill/interpretations/internet-filtering (June 30, 2015).

Dani Pinter, Esq.

Senior Legal Counsel for the NCOSE Law Center

Dani Pinter, Esq. serves as Legal Counsel for NCOSE and its Law Center. In this role, she drafts and consults on state legislation to help unravel the complex web of sexual exploitation. Dani also serves as a voice for human dignity in precedent-setting legal cases by authoring legal briefs and providing research and advice to attorneys and will launch litigation on behalf of victims of sexual abuse and exploitation. Dani speaks regularly on a variety of exploitation topics, with a special focus protecting youth in a digital age and on legal solutions to curb the demand for prostituted and sex trafficked individuals.

Dani Pinter originally joined the NCOSE Law Center at its inception in August of 2015. Dani was instrumental in reinvigorating the law center and traveled the country building relationships and raising awareness. Notably, she drafted the first piece of legislation recognizing the public health impacts of  pornography. This innovative piece of legislation has since been adopted in more than a dozen states. Dani also authored a key legal brief in a case involving a child predator who claimed a constitutional right to find children online and talk to them about sex in an arousing and exploitive manner. Her legal brief helped convince the Georgia Supreme Court to rule against the child predator and shut down the agenda of pro-child exploitation forces to go state by state trying to toss out such laws.

In 2016. Dani moved back to her home state of Florida to start a family and there joined the State of Florida’s Department of Children and Families as a Senior Attorney in Children’s Legal Services. In that role, Dani litigated cases involving child abuse, abandonment, and neglect. She worked tirelessly to serve the children and families in need in her home state. During this time, Dani saw first-hand the devastation that sexual abuse inflicts on children and families and the cycle of abuse and trauma it creates.

Throughout her time with Children’s Legal Services, Dani brought the knowledge she gained from NCOSE to every one of her cases. She could not help but note the policy changes and education that were needed in this field. So, when an opportunity to work with NCOSE again arose – Dani seized it without hesitation. Dani rejoined the NCOSE law center in 2019 as Legal Counsel.

Dani has always had a passion for human rights issues especially those affecting women and children. This passion is what led her to Regent University School of Law. Upon acceptance, Dani received the Wilberforce Award, a full academic scholarship for those with human rights interests. While at Regent, Dani was in the Honors Program, a member of the Moot Court Board, the Journal of Global Justice and Public Policy, and the Student Bar Association. During her studies Dani interned with the American Center for Law and Justice (ACLJ) and the Florida Attorney General’s Office of Statewide Prosecution.

Prior to law school Dani worked as a government relations intern for multiple DC policy organizations and graduated from the University of Central Florida with dual degrees in Psychology and Marketing.

Further Reading

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