Legal Currents

Listen to this article

“In theory, there is no difference between theory and practice. But in practice, there is.”
— Yogi Berra
Therein lies the dilemma: In theory, banning access to Internet pornography on computers at branches of the Monroe County Public Library System sounds like a perfectly reasonable idea. It’s difficult to argue with the assertion that public libraries aren’t an appropriate forum for perusing porn.
In practice, however, it’s virtually impossible to restrict access to pornographic Web sites without restricting access to information on an array of perfectly legitimate subjects, since Internet filtering software is an imperfect science. Accordingly, results for searches for information on, for example, “breast cancer” or “Super Bowl XXX,” are filtered or blocked entirely.
My gut instinct when I first learned of this issue was that the library should be able to restrict Web sites that its users access, just as it restricts the content available in the books and magazines available to its patrons, and that doing so would not necessarily infringe upon the constitutional rights of its patrons.
I have yet to stumble upon an issue of Penthouse magazine in my local library, and I don’t see how the library’s refusal to provide access to Penthouse violates my constitutional rights. Likewise, at first glance, it’s difficult to envision how First Amendment rights are implicated by restricting access to pornographic Web sites.
After some cursory research, I learned that my gut reaction on this issue conforms with the majority’s opinion in a recent U.S. Supreme Court decision that considered the issue of whether the federal government may condition a library’s receipt of federal funding on its mandatory use of Internet filtering software.
In United States v. American Library Association, Inc., 539 US 194 (2003), the majority concluded that a library’s use of computer software to filter online pornography is no different than a library’s decision to exclude pornography from print collections. Accordingly, the federal statute at issue was upheld.
Justice David Souter raised an interesting counterpoint in his dissenting opinion, however, and compared the filtration of content on the Internet to censorship of books already in the library’s collection by refusing access to certain books or by tearing out objectionable pages from others.
It seems, then, that this issue really boils down to a debate regarding how the use of this particular technology is viewed.
In other words, is restricting access to the Internet in public libraries akin to censoring books already on the library’s shelves, or is it similar to the decision of whether to purchase a particular book for inclusion in the library’s collection in the first instance≠ Is the whole Internet the sum of its parts, or is there a Constitutional guarantee to view only some parts≠
The answers to questions like these will become increasingly important as rapid technological advancements defy traditional categorization. It remains to be seen whether our legal system — still firmly rooted in the common law of generations past — will be willing or able to accommodate the rapid changes in technology.
Reasonable judicial minds are unable to reach a consensus as to how to define pornography, a concept that has been around since the dawn of time. Is it at all surprising that our finest judicial minds are also having difficulty agreeing upon a working definition of the fledgling Internet≠
One thing I think we can all agree on is that viewing pornography in public libraries is inappropriate, and quite possibly offensive — in theory, at least.
But in practice, how does one effectively filter pornographic pages found on the Internet when the concepts at issue defy definition≠ Quite frankly, I’m not sure if it can be done.
Nicole Black is of counsel to Fiandach & Fiandach and also provides legal research and writing services, including appeals, on a contract basis to attorneys throughout New York State. In addition, she publishes a New York law blog, Sui Generis, online at nylawblog.typepad.com.