Face Free-Speech Test
The San Francisco Public Library, a large gray edifice that stands across from the city's sparkling City Hall, hardly seems like ground zero for a constitutional war over Web content.
But inside the library, where backpack-toting students can slip in to study and homeless people can duck the rain and surf the Web, a battle is brewing over what people--children and adults--can view on public, Internet-connected computers.
As a result of a new federal law, the San Francisco Public Library and thousands of other libraries across the country are facing a conundrum: filter Internet content against their will or risk losing federal funds.
The law, called the Children's Internet Protection Act (CIPA), forces schools and libraries that receive government money to block Web images deemed harmful to minors.
San Francisco, long a bastion of free love and free speech, is taking a stand against what officials there see as censorship by refusing to filter content.
"Putting filters on the Internet sometimes blocks constitutionally protected speech," said Marcia Schneider, public affairs director of the San Francisco Public Library system. "Many librarians feel that filters don't protect children from porn, that they lead to a false sense of security."
The filtering law--which is facing legal challenges from groups including the America Civil Liberties Union (ACLU), the American Library Association (ALA) and an organization of California libraries that includes San Francisco--is the latest in a long line of attempts to regulate Web content. Although the founders of the Web envisioned a freewheeling community where people of all persuasions could communicate without the legal constraints of the real world, the self-appointed moral keepers of society have had a different idea.
Fearing that easy access to a flurry of pornographic and violent content could taint Net users in general and children in particular, some groups have set out to restrict what people can see and read on the Web. The results so far have been largely unsuccessful: Two major federal legislative attempts have been tossed out because of First Amendment violations. And most efforts at the state level have failed as well.
However, proponents of a content crackdown are learning from their experiences and tailoring successive rounds of legislation more narrowly in efforts to avoid the constitutional blunders of the past.
The local method of filtering has been the preferred approach in the United States and differs from steps taken in more oppressive countries, where governments have tried to use state-run Internet service providers and other methods to block content.
Of course, the debate over censorship is as old as the written word. But the Web has opened a new chapter of the debate by providing access to a world of content larger than any library could ever house, a world where sites catering to people's most-primal fantasies are just a mouse click away.
In some ways, peddlers of porn and other vices have become more insidious. After all, Web pages catering to fetishes of all stripes can be found at sites containing seemingly innocuous words such as "whitehouse," "Barbie" or "childrensbiblestories." What's more, once people stumble onto such a site--either unwittingly or intentionally--they often are trapped there by countless technological tricks including misleading metatags and a disabled back button.
It is this phenomenon of porn on demand--available anytime to people of all ages--that's alarmed individuals such as Donna Rice Hughes, an Internet safety advocate and former leader of the anti-porn group Enough is Enough. For years, Hughes, the Gary Hart love interest turned born-again Christian, has been on a crusade to combat the seedy side of the Net through regulation, a battle that has culminated with the latest filtering bill.
Hughes promotes government intervention because, she said, "parents...can't be expected to shoulder the entire burden."
Her targets these days are those she calls "pornapreneurs": businesspeople looking to make a buck by capitalizing on the underbelly of the Web.
Next came the Child Online Protection Act (COPA), which was attached to a budget bill in 1998 and dubbed the "son of CDA." Though less restrictive than its predecessor--the law targeted only commercial sites, preventing them from purveying sexually explicit material to children--a federal appeals court again tossed out major parts of it on First Amendment grounds. However, the Justice Department recently filed an appeal in an attempt to revive COPA.
What's more, a commission was impaneled in fall 1999 to submit recommendations to Congress on dealing with Web material that's harmful to minors. In a report released in October, the commission recommended parental education and self-regulation for the porn industry, but it refused to promote filters.
Despite that, CIPA, the law that mandates filtering, passed in December. Introduced by Sen. John McCain, R-Ariz., it represents a more tailored attempt at regulating content. Unlike the two previous acts, it restricts only visual depictions, affects only schools and libraries, and ties restrictions to federal funds.
"What we learned is that we had to try to find a way to extend the protections children have in the real world, to find a way to siphon off the material from kids without impeding on the rights of adults," said Hughes, who's also a COPA commissioner and a consultant to FamilyClick.com. "You need a targeted approach. You can't do everything all at once."
The major federal attempts to regulate content have had many similarities: All were more narrowly tailored than their predecessors; all were attached to sweeping bills in an effort to avoid public debate over the matter; and all have been challenged in court.
In the latest round of the cultural war over Internet content, the ACLU and ALA sued on grounds that the latest filtering bill violates the First Amendment by restricting content in libraries. What's more, the groups argue that the bill further accelerates the digital divide by forcing people who don't have computers at home to surf a filtered Web.
"The problem is just blocking out the illegal stuff," said Nika Herford, a spokesman for filtering company Net Nanny Software International. For example, how will a computer program distinguish between the nude, reclining figure in Jean-Auguste-Dominique Ingres' "La Grand Odalisque" and a porn star poised for prurience?
"They think they are going to win because they've made the law so narrow, but the technology maybe can't deliver that," Herford warned.
To complicate matters, the U.S. Supreme Court has just agreed to hear arguments regarding the Child Pornography Prevention Act of 1996, a law that makes it illegal to possess digital images of sexual acts featuring people who "appear to be" minors, even if they aren't. A federal appeals court in California has struck down that portion of the law, but three other district courts have upheld it, despite warnings from free-speech groups that it could make owning a digital copy of movies such as "Lolita" or "Romeo and Juliet" punishable by years in prison.
In addition to the federal attempts, several states have tried to clamp down on Internet porn. However, most have not succeeded.
Then there are court battles in Virginia and California regarding specific libraries and their filtering habits, or lack thereof. Courts in both states have ruled in favor of free-speech advocates. A Virginia court has ordered a Loudoun County library to stop filtering, and a California court has sided with a library that refused to filter.
So far, librarians are cheering their court victories.
"We continue to prevail in court, and we expect to do so again," said Susan Gallinger, director of the Livermore Library in California, which so far has fended off a court challenge by a mother who wants the library to filter. "It's the typical practice of trying to impose their values on everybody else. Librarians don't want to be put in that role."
Whatever the outcome of the filtering challenges, one thing is certain. The debate over Web content regulation will rage for years to come. When overturning parts of the CDA, Judge Stewart Dalzell called the Internet a "never-ending worldwide conversation" that should be protected from government intervention.
Still, James Schmidt, a San Jose State University professor and COPA commissioner at the opposite end of the spectrum from Hughes, predicted filtering proponents won't back off anytime soon, even if their latest bill doesn't pass constitutional muster.
"Until and unless that school of thought is satisfied that appropriate government regulation is being taken to protect kids, this debate will go on and on and on," he said.
Source: ZDnet April 19, 2001