Even though the First Amendment contains what appears to be a total ban on laws that abridge the freedom of speech, the Supreme Court has upheld various abridgements that Congress and the states have imposed. This section of this chapter considers some restrictions on speech that affect libraries, including obscenity, child pornography, and material that is ‘‘indecent’’ or ‘‘harmful to minors.’’ It also examines how the Supreme Court has dealt with government attempts to regulate speech in libraries—attempts such as banning certain books, requiring filtering of sexual material on the Internet, and limiting the use of library meeting rooms, exhibit spaces, bulletin boards, and giveaway racks. This section includes a brief mention of how not only the First Amend- ment, but also the Commerce Clause, limits state regulation of the Internet.
A. Free Expression
The First Amendment to the US Constitution provides, ‘‘Congress shall make no law y abridging the freedom of speech, or of the press.’’ The
Supreme Court has interpreted this restriction, however, to apply not only to Congress, but to every governmental entity (federal, state, or local) includ- ing, of course, public libraries, public school libraries, and any other gov- ernment-run library. The Supreme Court has also found that ‘‘no law’’ should not be taken literally, and no one ever has taken it literally. No one believes that the government may not prohibit speech that consists of threatening to kill someone, conspiring to commit a crime, offering a bribe (other than a campaign contribution), engaging in perjury, treason, or false advertising, or, to cite Oliver Wendell Holmes’ famous example, falsely shouting fire in a theater. There are no First Amendment absolutists, even if some people claim to be absolutists.
Other exceptions to the First Amendment are more controversial. These include the exceptions the Supreme Court has created for two types of por- nography: obscenity and child pornography, thereby enabling them to be banned by federal and state law. Libraries have not traditionally collected obscenity or child pornography, but critics complain that, in the Internet age, libraries disseminate such material through public access terminals.
They also complain that libraries disseminate material that, even though protected by the First Amendment with respect to adults, is inappropriate for minors. These include material, that is ‘‘indecent,’’ ‘‘harmful to minors,’’
or violent. Let us run through all these types of speech in order.
1. Obscenity
Obscenity is a small subset of hardcore pornography. Pornography, hardcore or otherwise, is, for the most part, protected by the First Amendment. This means that the government may not totally ban it, although it may forbid its distribution to minors. Pornography is not a legal term, so the law does not define it; it’s simply a form of speech that, under the First Amendment, the government may not abridge. Obscenity, by contrast, is a legal term, and, as the Supreme Court has said that the government may ban it, it must define it, and has done so.
In Miller v. California, the Supreme Court held that, to be obscene, pornography must, at a minimum, ‘‘depict or describe patently offensive
‘hard core’ sexual conduct’’ (Miller v. California, 1973: 27). The Court in Miller created a three-part test, known as the Miller test, to determine whether a work is obscene. The Miller test asks: (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.
Obscenity, incidentally, may consist of words or pictures, though it is hard to imagine an obscenity prosecution today being brought against mere words.
The Supreme Court has clarified that only ‘‘the first and second prongs of the Miller test—appeal to prurient interest and patent offensiveness—are issues of fact for the jury to determine applying contemporary community standards’’ (Pope v. Illinois, 1987: 15). As for the third prong, ‘‘[t]he proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.’’
Note that nothing in the Miller test requires that a publication be harmful to be deemed obscene, and obscenity may be the only type of speech to which the Supreme Court has denied First Amendment protection with- out regard to whether it is harmful. The Court has found simply ‘‘that any benefit that may be derived from [obscenity] is clearly outweighed by the social interest in order and morality,’’ and that there is evidence that, at the time of the adoption of the First Amendment, obscenity ‘‘was outside the protection intended for speech and press’’ (though Justice William O. Douglas, dissenting, wrote that ‘‘there is no special historical evidence that literature dealing with sex was intended to be treated in a special manner by those who drafted the First Amendment’’) (Roth v. United States, 1957: 483, 485).
Obscenity is unique among exceptions to the First Amendment in other respects as well. Defining it in part on the basis of whether it is patently offensive according to community standards means that a majority of the population in a given community may prevent the minority from viewing what it wants, and that seems contrary to the very purpose of the First Amendment. Furthermore, because there is no way that a publisher or library can know what any particular community’s standards are—until after a jury convicts or acquits it of publishing or distributing obscenity—theMillertest denies publishers and libraries notice of when they commit a crime. In almost any other context, this would violate the Constitution’s guarantee of due process of law. On top of that, theMillertest is incoherent in requiring that a publication simultaneously appeal to the prurient interest of, and be patently offensive to, one and the same community. As law professor Kath- leen M. Sullivan succinctly put it, the first two parts of the Miller test
‘‘require the audience to be turned on and grossed out at the same time’’
(Sullivan, 1992).
The notion of community standards has been problematic since the Supreme Court adopted it in 1973, but it became more problematic with the advent of the Internet. It was problematic before because the Court never defined ‘‘community,’’ except to note that it was not any precise geographic area, though it might be less than an entire state, and that a trial judge who directs a jury to apply community standards need not specify what com- munity he means (Hamling v. United States, 1974; Jenkins v. Georgia, 1974).
This makes it impossible for the publisher of a national magazine to instruct its distributors not to sell it to retailers in any particular community whose standards it fears the magazine might not meet. Even if this were possible, a publisher could not prevent a purchaser of its magazine from bringing it or mailing it into a disapproving community.
Then we come to the age of the Internet. When someone posts material on the Internet, he posts it on a server and does not send it to any com- munity. Rather, any community that has a computer and a means to connect to the Internet may obtain access to the material. Web publishers cannot, therefore, even in theory, restrict access to their material based on the locale of the site visitor. This means that, under the Miller test, the most puri- tanical community in the nation may prevent the entire nation (and the world) from gaining access to material that it finds patently offensive. Yet the Supreme Court held that this fact did not render unconstitutional a statute that used ‘‘community standards’’ in defining a crime committed via the Internet (Ashcroft v. American Civil Liberties Union, 2002). In 1994, a husband and wife in Milpitas, California, were convicted and sentenced to prison for transmitting obscenity over the Internet, after a Tennessee un- dercover Postal agent, in a sting operation, downloaded images they had posted (United States v. Thomas, 1996).
The good news for free-speech advocates is that the ‘‘community stand- ards’’ requirement makes it is difficult for the government to get convictions for obscenity, and, as a consequence, the government brings relatively few obscenity prosecutions. The difficulty arises because pornography is so prev- alent in the United States that the defense can usually call a witness, such as the proprietor of a local video shop, to testify that the allegedly obscene material on trial is similar to what members of the community buy or rent on a regular basis. This may have been a factor that prompted a comment by an anonymous Federal Bureau of Investigation (FBI) agent, when, in the summer of 2005, Attorney General Alberto Gonzales announced that he would divert eight FBI agents, a supervisor, and assorted support staff to gather evidence against manufacturers and purveyors of adult pornography.
The reportedly ‘‘exasperated’’ FBI agent said, ‘‘I guess this means we’ve won the war on terror’’ (Gellman, 2005).
2. Child Pornography
Libraries are increasingly contending with the unhappy fact that some pa- trons use their public terminals to download child pornography. Because child pornography, like obscenity, is unprotected by the First Amendment, the Supreme Court has had to define it too, and has defined it as material that
‘‘visuallydepicts sexual conduct by children below a specified age’’ (New York v. Ferber, 1982: 764). The ‘‘sexual conduct’’ that may not be depicted is defined by federal law to include not only sex acts but also the ‘‘lascivious exhibition of the genitals or pubic area of any person,’’ even when clothed.
Child pornography is unprotected by the First Amendment even when it is not legally obscene; in other words, child pornography need not meet the Millertest to be banned—it need not be prurient, patently offensive, or lack serious artistic value. The fact that child pornography may be artistic, after all, is no defense to child molestation.
A free-speech advocate might argue that, though the government may certainly prohibit adults from having sex with minors, the First Amendment should preclude the government from banning photographs of the activity.
After all, the First Amendment ordinarily protects photographs of crimes being committed. The difference with child pornography, however, is that the crime—child abuse—is committedfor the sake ofthe photograph, and, as the Supreme Court wrote, it would be ‘‘difficult, if not impossible, to halt the exploitation of children by pursuing only those who produce the pho- tographs and movies,’’ and not also by pursuing the photographs and movies themselves and those who possess them.
To this extent, child pornography law is uncontroversial. Controversy arises where non-sexual pictures of children are prosecuted as child pornog- raphy, and where pictures produced without the use of real children are prosecuted as child pornography. The Supreme Court heard a case on each of these controversies, though, in the first, it didn’t decide anything.
InMassachusetts v. Oakes, the Supreme Court considered a Massachusetts statute that made it a crime to knowingly permit a child under 18 years ‘‘to pose or to be exhibited in a state of nudity y for purpose of visual rep- resentation or reproduction in any book, magazine, pamphlet, motion pic- ture film, photograph, or picture’’ (Massachusetts v. Oakes, 1989: 579). The defendant in the case had been convicted for taking topless photographs of his 14-year-old stepdaughter, but the Massachusetts Court reversed on the ground that the statute was overbroad (which means that its proscription encompassed speech that was protected by the First Amendment) because it would make ‘‘a criminal of a parent who takes a frontal view picture of his or her naked 1-year-old running on a beach or romping in a wading pool.’’
While the case was pending before the US Supreme Court, the statute was amended to allow convictions only where nude pictures are taken ‘‘with lascivious intent.’’ Because the statute no longer existed in the form it had when the defendant was convicted under it, the Court chose not to decide whether the statute in that form was overbroad or whether the defendant’s conduct was protected by the First Amendment.
In Ashcroft v. Free Speech Coalition, the Supreme Court held that child pornography that is produced without using an actual minor is protected by the First Amendment (Ashcroft v. Free Speech Coalition, 2002). This case was a challenge to a federal statute that banned child pornography, including any
‘‘visual depiction [that] is, or appears to be, of a minor engaging in sexually explicit conduct.’’ The statute thus applied to computer-generated child pornography, to cartoons and other drawings where it was obvious that no minor was used, and to child pornography in which adult actors looked like minors. The Supreme Court noted that statutes that prohibit child pornog- raphy that use real children are constitutional because they target ‘‘[t]he production of the work, not its content.’’ The statute banning child por- nography not produced with a real child, by contrast, targeted the content, not the means of production. ‘‘Virtual child pornography is not ‘intrinsically related’ to the sexual abuse of children,’’ as is child pornography produced with real children.
The government’s rationales for the statute included that ‘‘[p]edophiles might use the materials to encourage children to participate in sexual ac- tivity’’ and might ‘‘whet their own sexual appetites’’ with it, ‘‘thereby in- creasingythe sexual abuse and exploitation of actual children.’’ The Court found these rationales inadequate because ‘‘[t]he government may not pro- hibit speech because it increases the chance an unlawful act will be com- mitted ‘at some indefinite future time.’’’ This was not, in other words, a case of falsely shouting fire in a theater.
The government also argued that the existence of ‘‘virtual’’ child por- nography ‘‘can make it harder to prosecute pornographers who do use real minors,’’ because, ‘‘[a]s imaging technology improvesy, it becomes more difficult to prove that a particular picture was produced using actual chil- dren.’’ ‘‘This analysis,’’ the Court found, ‘‘turns the First Amendment upside down. The Government may not suppress lawful speech as the means to suppress unlawful speech.’’ Though child pornography produced without a real child may cause harm, many types of speech, such as racist speech, may cause harm, yet are protected by the First Amendment.
The Court also noted that, because child pornography, unlike obscenity, may include material with serious literary, artistic, political, or scientific value, it includes ‘‘[a]ny depiction of sexually explicit activity, no matter how
it is presented.’’ The statute therefore ‘‘applies to a picture in a psychology manual, as well as a movie depicting the horrors of sexual abuse. y [T]eenage sexual activity and the sexual abuse of childrenyhave inspired countless literary works,’’ and some movie versions of Shakespeare’s Romeo and Juliet‘‘suggest that the teenagers consummated their relationship.’’
Ashcroft v. Free Speech Coalitionnevertheless caused an uproar in Congress (What politician is going to vote against banning child pornography, how- ever it is defined?), and in 2003 it enacted a new statute. The new one does not go as far as the one that the Supreme Court struck down, in that it covers only computer-generated images that appear indistinguishable from that of a minor engaging in sexually explicit conduct. It thus covers neither cartoons and drawings nor photographs of adults who look like minors. Nevertheless, its constitutionality is questionable.
3. Material that is ‘‘Indecent’’ or ‘‘Harmful to Minors’’
Material that is legally ‘‘indecent’’ or ‘‘harmful to minors’’ is protected by the First Amendment, and the government therefore may not totally ban it, although it may forbid its distribution to minors. Federal law prohibits
‘‘indecent’’ material on radio and broadcast (not cable or satellite) television from 6 a.m. to 10 p.m.; Congress chose these hours, after a court had overturned a total ban, as the hours when children would most likely be in the audience. In applying this statute, the Federal Communications Com- mission has defined ‘‘indecent’’ material as material that, in a manner that is
‘‘patently offensive as measured by contemporary community standards for the broadcast medium,’’ ‘‘describe[s] or depict[s] sexual or excretory organs or activities’’ (In the Matter of Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C.Section 1464and Enforcement Policies Regarding Broad- cast Indecency, 2001). ‘‘Indecent’’ material thus includes the seven dirty words that George Carlin repeated in his famous monologue, as well as pictures of nude bodies, including even Janet Jackson’s breast as exposed during the Superbowl halftime show in 2004.
Part of another federal law, the Communications Decency Act of 1996, which was struck down by the Supreme Court before it took effect, would have made it a crime to use a telephone, fax machine, or e-mail to transmit an ‘‘indecent’’ communication to a minor, or to display such material on a web site available to a minor. The Court held unconstitutional the provision that banned transmitting ‘‘indecent’’ communications to a minor because it was so broad that ‘‘a parent who sent his 17-year-old college freshman in- formation on birth control via e-mail could be incarcerated even though neither he, his child, nor anyone in their home community found the
material ‘indecent’ or ‘patently offensive,’ if the college town’s community thought otherwise’’ (Reno v. American Civil Liberties Union, 1997: 878). The Court held unconstitutional the provision that banned similar material on web sites that are available to minors because, except on web sites that may be accessed only upon showing proof of age, to make material unavailable to minors means to remove it entirely, and the government, the Court wrote, may not ‘‘reduc[e] the adult population y to y only what it fit for children.’’
Congress tried again in 1998 by enacting the Child Online Protection Act (COPA). It has not yet been held unconstitutional, but it has never taken effect because its constitutionality was challenged and a federal district court issued a preliminary injunction against its enforcement pending trial, find- ing that the plaintiffs were likely to prevail in their challenge. The gov- ernment appealed, and, in 2004, the Supreme Court affirmed the injunction and sent back the case for trial (American Civil Liberties Union v. Reno, 2004).
COPA differs from the Communications Decency Act in two main re- spects: (1) it prohibits communication to minors only of material that is
‘‘harmful to minors,’’ rather than material that is indecent and (2) it applies only to communications for commercial purposes on publicly accessible web sites, and not to telephone, fax, or e-mail communications. The concept of
‘‘harmful to minors’’ is narrower than the concept of ‘‘indecent’’; it derives from state statutes that prohibit the sale to minors of what the Supreme Court once called ‘‘girlie’’ magazines (Ginsberg v. New York, 1968: 634).
‘‘Harmful to minors,’’ as defined in COPA and in state statutes generally, parallels theMillertest for obscenity, and, therefore, like the Millertest, is incoherent. Material that is ‘‘harmful to minors’’ is material that, with re- spect to minors, appeals to the prurient interest and is patently offensive, and that lacks serious literary, artistic, political, or scientific value for minors.
Note that the definition of ‘‘harmful to minors’’ does not require that the material be harmful to minors. If it did, then one might wonder how the same material could be harmful to minors in one community but not in another.
In its 2004 decision upholding the preliminary injunction against the government’s enforcement of COPA, the Supreme Court found that the lower court had not abused its discretion in finding that the plaintiffs who had challenged the statute were likely to prevail. This was because there were alternatives to COPA that would be as effective in accomplishing COPA’s goal yet would restrict speech less than COPA would. The primary alter- native to COPA, the Court noted, is filtering software. Filters are less re- strictive than COPA because ‘‘[t]hey impose selective restrictions on speech at the receiving end, not universal restrictions at the source.’’ In addition