As routinely happens, this topic of libraries “having to allow customers access to pornography” on their Internet access computers has reared its ugly head, unfortunately on LISNews Blog this time. And, as also consistently happens, peoples’ opinions are unbelievably skewed by their personal morals and lack of knowledge. (I’ll clearly state up front that my own personally held opinion is that while pornography may be protected under the First Amendment of the Constitution – that’s the Supreme Court’s fault – NOT the library’s, and libraries should do whatever is necessary and legal to uphold every customer’s rights, but not facilitate one customer’s rights over the rights of others, unless they happen to be in a special class of protected citizen.)
City libraries say ‘checking out’ porn protected by First Amendment according to The New York Post article published today. The writer goes on to quote (or more likely misquote) the Brooklyn Public Library spokeswoman Malika Granville who supposedly stated “Customers can watch whatever they want on the computer,” … describing the anything-goes philosophy that’s the rule at the city’s 200-plus branches.” Anyone who knows anything about CIPA or libraries knows this is not true, assuming BPL is making any effort to comply with the law, assuming also that they receive federal funding. (If not, as is the case in a surprising number of public libraries, CIPA does not apply to them, and “Customers can watch whatever they want on the computer,” at their own peril of law suits from offended customers.)
In the last lines of the article, the writer correctly quotes New York Public Library spokeswoman Angela Montefinise as stating “In deference to the First Amendment protecting freedom of speech, the New York Public Library cannot prevent adult patrons from accessing adult content that is legal,” which is no doubt what Ms. Granville said, or meant. The emphasis is on “legal”, and believe it or not, not all sexually overt materials are protected viewing.
CIPA
One of the issues that seldom gets coverage in these articles (no doubt intended to stimulate peoples’ fears and moral outrage on whichever side of the issue) is the fact that Congress passed the Children’s Internet Protection Act (CIPA) to protect minors from the liberty granted to adults by the Supreme Court to indulge in pornography. AND, even more importantly, the law makes clear distinctions between sexual depictions that are “pornographic”, “obscene” and “harmful to minors”.
Most people don’t know that “obscene” material is prohibited, even for adults, and sexually oriented depictions that are considered “harmful to minors” are prohibited in the library, but not to adults, thus the filters to prevent minors from viewing such material. (If one wanted to get more deeply into the “harmful to minors” aspect of the law, there is a vast multitude of hate crime, white supremacy, anti-almost everything Internet sites that could easily qualify as “harmful to minors”. I suggest these are issues for local jurisdictions to address.)
The full text of the FCC Rule implementing CIPA states in relevant part ( TITLE XVII–CHILDREN’S INTERNET PROTECTION);
(2) Libraries. The billed entity for a library that receives discounts for Internet access and internal connections must certify, on FCC Form 486, that an Internet safety policy is being enforced. If the library is an eligible member of a consortium but is not the billed entity for the consortium, the library must instead certify on FCC Form 479 (“Certification to Consortium Leader of Compliance with the Children’s Internet Protection Act”) that an Internet safety policy is being enforced.
(i) The Internet safety policy adopted and enforced pursuant to 47 U.S.C. § 254 (h) must include a technology protection measure that protects against Internet access by both adults and minors to visual depictions that are obscene, child pornography, or, with respect to use of the computers by minors, harmful to minors.
(ii) The Internet safety policy adopted and enforced pursuant to 47 U.S.C. § 254(l) must address all of the following issues:
(A) access by minors to inappropriate matter on the Internet and World Wide Web;
(B) the safety and security of minors when using electronic mail, chat rooms, and other forms of direct electronic communications;
(C) unauthorized access, including so-called “hacking,” and other unlawful activities by minors online;
(D) unauthorized disclosure, use, and dissemination of personal information regarding minors; and
(E) measures designed to restrict minors’ access to materials harmful to minors.
Most interesting is 2(i) “a technology protection measure that protects against Internet access by both adults and minors to visual depictions that are obscene, child pornography, or, with respect to use of the computers by minors, harmful to minors.” [Emphasis added.] Which BEGS the question; “OK, so what’s the distinction between “obscene” that is prohibited to adults as well as minors, and “pornography” that is not addressed, but we all know is not prohibited to adults?
“(G) OBSCENE.–The term `obscene’ has the meaning given such term in section
1460 of title 18, United States Code.” And FINDLaw (Copyright © 2011 FindLaw, a Thomson Reuters business ) website 20 U.S.C. § 9101: US Code, General Definitions states:
As used in this chapter:
(1) Determined to be obscene
The term “determined to be obscene” means determined, in a final judgment of a court of record and of competent jurisdiction in the United States, to be obscene.
…
(7) Obscene
The term “obscene” means, with respect to a project, that –
(A) the average person, applying contemporary community standards, would find that such project, when taken as a whole, appeals to the prurient interest;
(B) such project depicts or describes sexual conduct in a patently offensive way; and
(C) such project, when taken as a whole, lacks serious literary, artistic, political, or scientific value.
So, the bottom line of this whole “pornography in the library” debate is basically that the definitions, implementations and enforcement of Internet protection standards for any specific public library’s customers, both children and adults, are largely local.
Virtually all states have adopted their own CIPA laws, but they tend to mirror the federal law. Most jurisdictions also have community standards ordinances for decency and obscenity and public displays of pornography. Smart and innovative library directors and boards have already implemented policies that use every legal resource at their assistance to control pornography and obscenity within their library to protect all of their customers’ legal rights – both legal access to information, as well as legal right to freedom from an uncomfortable (some might use the term ‘hostile’) library environment.
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RESOURCES:
18 USC Chapter 110 – Sexual Exploitation And Other Abuse Of Children
Privacy Online: A Report to Congress 1998. Covers the essential notices that should be given to consumers who use online services.
21st Century Library Blog 