Filtering *is* Constitutional, Part II

[Filtering Facts]

RE-Posted with permission.

NATIONAL LAW CENTER
FOR CHILDREN AND FAMILIES

NLC MEMORANDUM OF LAW
available on legal issues involving
USE OF FILTERING SOFTWARE BY LIBRARIES AND SCHOOLS
TO BLOCK ACCESS TO SEXUALLY EXPLICIT MATERIAL ON
THE INTERNET IS CONSTITUTIONAL

The following is part of an educational series concerning law and the
Internet, with a focus on the subjects of obscenity and child pornography
law, regulation of material harmful to minors, and the Constitutional
rights of the individual and the community

        The National Law Center for Children and Families (NLC) is a
non-profit educational organization which specializes in assisting and
advising prosecutors and law enforcement agents in issues and cases
involving the unlawful distribution of pornography and related speech
cases. The legal staff has extensive experience in the prosecution of
obscenity violations, child sexual abuse, and child pornography in state
and federal courts. After reviewing the relevant state and federal
statutory and case law, we believe that the use of filtering software by
public libraries and schools is both constitutional and lawful. An NLC
Memorandum of Law is being made available to the public which sets forth
the reasons for our opinion and discusses related issues, including the
following:

1. FEDERAL AND STATE LAWS BAN THE USE OF CYBERSPACE TO DISSEMINATE
OBSCENITY. CHILD PORNOGRAPHY. AND MATERIAL HARMFUL TO MINORS

        Obscenity and child pornography are not protected by the First
Amendment. There is an absolute and enforceable criminal prohibition under
current federal laws against the transmission of obscene material and child
pornography over the Inter net (World Wide Web), Usenet, and Bulletin Board
Systems. Reno  v. ACLU, 521 U.S. _, 117 S.Ct. 2329 (June 26, 1997). Federal
law bans the cyberspace distribution of obscene matter over "interactive
computer services," defined under federal law as "any information service
system or access software provider that provides or enables computer access
by multiple users to a computer server, including specifically a service or
system,, that provides access to the Inter net and such systems operated or
services offered by libraries or educational institutions." See Title 18 of
the United States (Criminal) Code, Sections 1462 and 1465. It is unlawful
to transmit obscenity and child pornography by computer transmissions and
services which use phones lines and common carriers, just as it is by mail
or any other method of interstate or foreign commerce. Such illegal acts
also constitute racketeering predicates under the RICO Act (18 U.S.C.. §
1961, et seq.). State laws, likewise, make it illegal to bring into or
distribute obscenity or child pornography within a state. The universal
judgment that obscenity and child pornography should be restrained is also
reflected in the international Treaty, adopted first in 1911, and now
administered by the United Nations on behalf of the United States and over
100 nations. See Agreement for the Suppression of the Circulation of
Obscene Publications, 37 Stat. 1511, Treaties in Force 209 (U.S. Dept.
State), cited in Roth v. United States, 354, U.S. 476, 495 n. 15 (1957).
                Where children are involved, there are special governmental
restrictions on the dissemination of sexually explicit material legally
defined as "harmful to minors,"because of the legitimate concern for the
safety of children -a matter of "surpassing" public importance. Most states
have enacted "harmful to minors" legislation, patterned after the U.S.
Supreme Court case of Ginsberg v. New York, 390 U.S. 629 (1968), which
upheld controls on the dissemination of harmful matter to minors even
though that matter may not be obscene for adults. In Ginsberg,, the Supreme
Court definitively held that the scope of the constitutional freedom of
expression secured to a citizen to read or see material concerned with sex
can be made to depend on whether the citizen is an adult or a minor, and
that protecting children from exposure to obscene or harmful material
satisfies a compelling state interest. This was reaffirmed by the Court in
Reno v.. ACLU, supra, which recognized the legitimacy and importance of the
goal of protecting children from harmful materials (even though it struck
the indecency provisions of the Communications Decency Act). Reno left the
right of states to enforce such "harmful to minors" laws undisturbed. See
Court Slip Opinion at p. 18 [majority opinion], and at p. 3, footnote 2, 

COPYRIGHT NATIONAL LAW CENTER FOR CHILDREN AND FAMILIES 1997

[Concurring and Dissenting Opinion, listing a number of Ginsberg-type state
statutes]. In addition to the approach taken in Ginsberg, the Supreme Court
has uniformly ruled that governmental regulations may act to facilitate
parental control over children's access to sexually explicit material. See
Action for Children's Television v. FCC, 932 F.2d 1504 (D.C.. Cir. 1991),
cert. denied, 112 S.Ct.. 1282 (1992); and Sable v. FCC, 492 US 115 (1989).

2. PORNOGRAPHY CAN BE BANNED FROM THE WORKPLACE

        In addition to the above considerations, whether exposure occurs in
a public library. school, or business, workplace "cyberporn" is a source of
potential legal liability for those vested with legal control over the
respective work environments.   The viewing of pornography in public places
can create an uncomfortable and humiliating environment for women
co-workers. regardless of their age (this liability is in addition to the
legal penalties for unlawfully exposing or displaying such "harmful"
material to minors). Pornography in the workplace can create a hostile
environment constituting sexual harassment in violation of state and
federal civil rights laws. See 42 U.S.C.. § 2000e-2;: 29 CFR § 1604.11: 18
U.S.C.. § 242; 42 U.S.C.. §§ 1981, 1982. See Robinson v. Jacksonville
Shipyards. 760 F. Supp.. 1486 (M.D. Fla.. 1991); "Pornography, Equality,
and a Discrimination-Free Workplace: A Comparative Perspective," 106
Harvard Law Review pp. 1075-1092 (1993).

3. THE USE OF FILTERING SOFTWARE BY LIBRARIES. SCHOOLS. AND BUSINESSES IS
CONSTITUTIONAL.

        It is lawful and fully consistent with the Constitution for
libraries and schools (both public and private). as well as for private
companies and institutions, to use filtering or screening software: (1) to
prevent the acquisition of illegal and objectionable pornography from the
various interactive computer services available through the Internet and
other online databases: (2) to restrict access to sexually explicit
pornographic material on computer terminals.  A school or library must be
classified as a "limited public forum."  It is constitutionally permissible
and appropriate for the governing board of a school or public library to
employ a software filtering device for library or school computers that
provide access to the Internet, Usenet, or other online services.

        Libraries and schools have the right and the privilege of making
use of software programs and services to avoid public, semi-public, and
private property from being used to improperly access material which
(judged according to its mission statement) is unsuitable, offensive, or
otherwise  undesirable, including, but not limited to, accessing matter
that: (1) meets the definition of "obscenity" as expressed in Miller v.
California and its progeny (so-called "hard-core pornography"); (2) meets
the definition of "child pornography," as defined in New York v. Ferber,
and 18 U.S.C.. §§ 2252, 2256 (minors engaged in sexually explicit conduct
or lewd/lascivious genital exhibitions); (3) meets the definition of
harmful to minors, as defined by the "Millerized" Ginsberg test (which
includes so-called "soft-core pornography"); (4) is found by a governing
board (in keeping with its respective mission statement) to be
"educationally unsuitable" for minor school children; or (5) creates a
hostile work environment or constitutes sexual harassment under applicable
State or Federal law.

        The value of the Internet as an educational and business asset can
only be realized if it is responsibly managed. Cyberporn doesn't belong in
a public library, school, or business. Blocking software can help keep it
out. Libraries, in particular, have no legal justification for providing
(1) minor children with access to hard-core or soft-core pornography or to
child pornography, or (2) adults with access to obscenity or child
pornography. Libraries, schools, and businesses making good faith use of
access restriction software to protect children or to avoid illegal
materials for adults are protected from liability by the "Good Samaritan"
immunity, provided by federal law, See 47 U.S.C. Section 230(e)(2), 110
Stat. 133, at 139 (1996).

The NLC memorandum of law discusses several of these related issues and is
available from the National law Center by contacting us at:

        Bruce A. Taylor, Chief Counsel          Janet R. LaRue, Senior
Counsel
        J. Robert Flores, Senior Counsel                Carol A. Clancy, Of
Counsel
        NLC National Office             NLC West Coast Office
        4331 Chain Bridge Road Ste. 410         3000 W. MacArthur Blvd.
Ste. 426
        Fairfax, VA 22030-4105          Santa Ana, CA 92704-6916
        (703) 691-4626, Fax: -4669              (714) 435-9090, Fax: -0019
        NationalLawCenter at compuserve com

        COP YRIGHT I NATIONAL LAW CENTER FOR CHILDREN AND FAMILIES 1997 2

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David Burt, Filtering Facts, HTTP://WWW.FILTERINGFACTS.ORG
David_Burt at filteringfacts.org