Filtering *is* Constitutional, Part III

[Filtering Facts]

  Re-Posted with Permission    

  MEMORANDUM OF LAW: 
                                                                      USING
PORNOGRAPHY FILTERING SOFTWARE
                                                            ON INTERNET
COMPUTERS IN PUBLIC LIBRARIES
                                                                           
 September 21, 1997 Copyright Colonel Richard N. Black (USA Ret .)

HARD CORE PORNOGRAPHY: Federal law criminalizes the transmission or
dissemination of obscene material (hard core pornography) and child
pornography.  Reno et al. v. American Civil Liberties Union, et. al., 521
U.S.  (June 26, 1997), [hereafter the CDA ruling]. The CDA ruling struck
down parts of the CDA for vagueness and overbreadth – specifically parts
that may have prohibited transmission of mere nudity and profanity It did
not prohibit any receiver from blocking or refusing to receive hard or soft
core pornography.

SOFT CORE PORNOGRAPHY:  A long line of precedents allows restrictions on
display of material considered harmful to minors ( soft core pornography).
[Ginsberg v. New York, 390 U.S. 629 (1968)] Virginia has implemented
Ginsberg by enactment of Va. Code Sect. 18.2-390, which contains criminal
prohibitions on knowingly providing soft core pornography to minors.
Virginia's law was upheld: [Commonwealth v. American Booksellers Assn., 372
S.E.. 2d 618 (Va. 1988), followed, 882 F.2nd 125 (4th Cir. 1989)]. Although
librarians are exempt from criminal prosecution for violations, the law
leaves no doubt it is legal to establish procedures to prevent minors from
viewing such materials.

CIVIL RIGHTS LIABILITY: There is substantial . liability risk for allowing
hard or soft core pornography into the library. Pornography In the
workplace may be prohibited under Title VII for creating a hostile,
sexually harassing environment. (See. "Pornography, Equality, and a
Discrimination-Free Workplace: A Comparative Perspective:" 106 Harvard Law
Review (March 1993). In Robinson v. Jacksonville Shipyards, 760 F. Supp.
1486 (M.D. Fla. 1991), the court found it reasonable for a woman -- whose
workplace was plastered with "sexually frank" images -- to feel sexually
harassed as a result. Title VII may be violated whenever a librarian is
forced to endure frequent exposure to explicit, degrading sexual images at
her workplace. Soft core pornography such as Playboy centerfolds may
suffice [Lipsett v. University of Puerto Rico, 846 F. 2d 104, 106 (5th Cir.
1988)]. A class action lawsuit could, if successful, entail significant
financial injury to the County.

GOOD SAMARITAN IMMUNITY: Congress has granted the County substantial legal
protection from suit for installing filters. 47 U.S.C.. § 230(c)(2) states:
(c) Protection for 'Good Samaritan' Blocking and Screening of Offensive
Material.... (2) Civil Liability.--No provider or user of ap interactive
computer service shall be held liable on account of . . . (A) any action
voluntarily taken in good faith to restrict access to or availability of
materiel that the provider or user considers to be obscene, lewd,
lascivious, filthy, excessively violent, harassing, or otherwise
objectionable, whether or not such material is constitutionally protected.

NO REQUIREMENT TO STOCK PORNOGRAPHY: No case law has ever required a
library to include pornography in its collection Board of Education v.
Pico, 457 U.S. 853 (1982), dealt with whether a school library could remove
certain books because of their social, political, or moral tastes. Although
the case was not a decision on the merits, the court did observe that
"[R]espondents implicitly concede that an unconstitutional motivation would
not be demonstrated if it were shown that petitioners had decided to remove
the books at issue because those books were pervasively vulgar." [Id. at
871].

CONCLUSION: Blocking pornography from the internet avoids legal liability,
enhances workplace genderequity, protects children from harmful material,
excludes material prohibited by state and federal criminal statutes, and
deters unsavory elements from threatening the public safety of women and
children who visit libraries alone or at night since our libraries do not
stock pornography in film or print at this time, blocking pornography will
provide consistency within our library collection. Accomplishing the above
goals requires software to screen out soft and hard core pornography.

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