Selection<Internet is neither acquired nor a single work>

[Burt, David]

Wallace makes three arguments why filtering is unconstitutional: "While
libraries have discretion in determining what materials to acquire, the
First Amendment prevents government from removing materials from library
shelves based on official disapproval of content. Secondly, government
rules classifying speech by the acceptability of content (in libraries
or elsewhere) are inherently suspect, may not be vague or overbroad, and
must conform to existing legal parameters laid out by the Supreme Court.
Third, a library may not delegate to a private organization, such as the
publisher of blocking software, the discretion to determine what library
users may see." (Wallace, Purchase of Blocking Software by Public
Libraries is Unconstitutional: Http://www.spectacle.org/library.html)

Most of Wallace's reasoning is based on the idea that once a library
offers access to the Internet, said library has acquired the entire
contents of the Internet, and that blocking software amounts to the
removal of materials from the library.  Closer examination reveals this
to be a weak analogy, and thus Wallace's arguments pretty much collapse.

Providing access to the Internet means providing the potentiality of
access to materials which do not exist in the library.  This is clearly
not the same as selecting and acquiring materials.  This is more closely
analogous to providing inter library loan or television broadcasts. When
I attended the University of Washington, the Undergraduate Library had
several television sets for viewing news and educational programming.
All channels except CNN and PBS were blocked.  I asked Mr. Wallace if he
thought this would be illegal, and he admitted that he thought, "it
would be too much of a stretch to call this illegal under Pico".
Filtering means restricting the potentiality of access to materials that
do not exist within the library.  That is no more censorship than is the
non-selection of materials.  Restricting the potentiality of access to
materials that do not exist in the library simply cannot be shoehorned
into being analogous with the removal of existing materials.

Wallace's second argument, that government rules classifying speech by
the acceptability of content may not be vague or overbroad, obviously
doesn't apply to library selection policies, or nearly every library in
the country would be violating the Constitution.  Library selection
policies are intentionally written in a broad, vague manner, so as to be
more inclusive.

Wallace's third argument, that a library may not delegate to a private
organization the discretion to determine what library users may see, if
applied to libraries would doubtless include pre-approval plans, which
are not uncommon in libraries.   Indeed, the Hawaii State Public Library
System has "delegated to a private organization" nearly all of "the
discretion to determine what library users may see".



  ***********************************************************
          David Burt, Information Technology Librarian 
          The Lake Oswego Public Library 
          706 Fourth Street, Lake Oswego, OR 97034
          URL:          http://www.ci.oswego.or.us/library/library.htm
          Phone:     (503) 675-2537 
          Fax:           (503) 635-4171 
          E-mail:      dburt at ci.oswego.or.us 
 ----------
From: andrew mutch
To: Burt, David
Cc: Multiple recipients of list
Subject: Re: Selection<Internet is neither acquired nor a single work>
Date: Monday, July 07, 1997 7:28AM

For those librarians interested in the legal reasons why using Intenet
filters is unconstitutional, see the Ethical Spectical at:
http://www.spectacle.org/cs/library.html

This presents the counter-argument, based on case law, to the position
presented by David and others, re: selection and filtering.

Also, note that this site is blocked by several of the software products
that have been discussed on this list.  And why is it blocked?  Because
of its criticism of those products.  That should make you think twice
before you turn these products on your public.

Andrew Mutch