Library Sex Site Case Goes to High Court

The Supreme Court agreed Tuesday to decide whether the nation’s public libraries can be required to screen sexually explicit Web sites from their computers in exchange for receiving federal money.

In May, federal judges in Philadelphia struck down this new requirement on the grounds that it violated the free-speech rights of library patrons.

But Bush administration lawyers appealed, arguing that it is wrong to say libraries have a legal duty to display all books, magazines and videos, or that patrons have a right to see it all.

It is the rare library that “collects Hustler magazine or XXX movie titles,” said U.S. Solicitor General Theodore B. Olson. “A library that refuses to make available to its patrons pornographic magazines or XXX videos may also refuse to make available comparable material through those computers,” he said.

He urged the court to revive the federal law, known as the Children’s Internet Protection Act.

The issue has been complicated by problems with the current filter technology, which may screen out pornography, but also can block sites that are not obscene. For instance, students researching breast cancer or sexual orientations have been blocked from useful sites.

This is the third Internet pornography case to reach the high court.

Five years ago, the justices unanimously struck down a sweeping law that made it a crime to post “indecent” material on the Internet. This year, the court blocked enforcement of a narrower law making it a crime to give minors access to commercial pornography. A lower court is studying how far that law would reach if put into effect.

The new law regulates only libraries that receive federal funds. Two years ago, lawmakers attached the law to a spending bill. They said the federal government should not subsidize the spread of hard-core pornography.

Public libraries that take federal money must install software filters on their computers with Internet access. The software is supposed to screen out “visual depictions” that are obscene or are “harmful to minors.”

Lawyers for the American Library Assn. challenged the measure as unnecessary and unconstitutional. They said local libraries have set policies to restrict the use of their computers, and they said there was no need for a mandatory national rule.

The federal law “takes a meat-ax approach to an area that requires far more sensitive tools,” the association said Tuesday.

But Jay Sekulow of the American Center for Law and Justice, the legal arm of the Christian Coalition, urged the court to revive the law. “The 1st Amendment should not be used as a shield for pornographers at the expense of our children,” he said.

So far, the legal battle has focused mostly on the flaws in the software filters. They scan for words, not images, resulting in dozens of peculiar exclusions. For example, during the trial in Philadelphia, it was revealed that filters screened out a site for aspiring dentists, a second site that promotes federalism in Uganda and a third that sells wooden wall hangings of scenes from the Bible.

Some of the excluded sites could be linked to sex, but they were not obscene or pornographic. For example, the filters blocked the site for the Lesbian and Gay Havuarah of the Jewish Community Center in Long Beach, while another screened out the home page of Wisconsin Right to Life.

The judges concluded that thousands of nonpornographic Web sites were wrongly excluded by the filters now on the market. Moreover, no technological solution was in sight, the judges said.

“No presently conceivable technology can make the judgment necessary to determine whether a visual depiction” is obscene or pornographic, the judges said. For that reason, they concluded the law violates the 1st Amendment because it would screen out too much material that is both harmless and useful.

In February, the justices will hear arguments in U.S. vs. American Library Assn. and issue a ruling by summer.

In the past, the high court has been closely split on cases involving free speech and federal funds.

In 1991, the court on a 5-4 vote said doctors in subsidized clinics can be barred from telling their pregnant patients that abortion is an option. But last year, the court, on another 5-4 vote, said government-subsidized lawyers cannot be barred from challenging welfare reforms in court.