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Sex, the Constitution and the Net

The Supreme Court is considering a new twist on the restriction of sexually explicit material. At the center of the battle is Judith Krug, a director at the American Library Association.

The U.S. Supreme Court on Wednesday considered a new twist on the old question of restricting sexually explicit material while preserving First Amendment rights. At issue is a 2000 law called the Children's Internet Protection Act (CIPA), which says that schools and public libraries receiving federal funds must filter the Internet. In May, a special three-judge panel unanimously ruled the CIPA was unconstitutional and blocked it from taking effect for libraries. The Justice Department appealed to the Supreme Court in June.

In the center of this high-stakes legal struggle is Judith Krug, a lifelong First Amendment advocate and director of the American Library Association's Office for Intellectual Freedom since it was founded in 1968. The ALA sued to overturn the law last year but because only the library-related sections of CIPA were challenged, it remains in effect for schools.

CNET News.com caught up with Krug in Washington, D.C., to discuss the case and the proliferation of Internet filtering throughout the nation's libraries.

Q: The three-judge panel in Philadelphia last year based its reasoning on the technological problems of the current crop of blocking software. Even if you win this case, might you lose a future case if the technology improves?
A: The problem with filtering software that is never going to be solved is the fact that it's a mechanical device. It's a thing. No matter how good they make the thing, it's never going to be able to think or to make judgments or to discern between the various meanings of words and contexts. The fact that any mechanical device is ever going to do that on its own is ludicrous.

You and the American Library Association have been active in two other lawsuits challenging Congress' efforts to restrict Internet pornography. So far judges haven't viewed these laws very kindly, but Congress keeps passing more of them.
I don't think they are going to give up. If one thing doesn't work, Congress will take what the court says and try to craft legislation that fulfills whatever requirements or concerns are laid down.

What percentage of libraries in the U.S. are filtering their Internet connections?
The latest figure that we have is 21 percent. The problem with that figure is that I personally don't think it's accurate. I think many libraries either use some kind of filter in a children's room but not in any other place in the library. They do this because of community concerns about children accessing material on the Internet.

I think the trend is to make filters available if people want to use them.
But a growing number of libraries are providing choices. They have some machines that are filtered and some that are not, and the individual chooses what they want to use or what they want their children to use. What is also interesting are the figures we have for one library that provides choice, the Fort Vancouver (Washington state) regional library. There, 22 percent requested filtered Internet while 78 percent requested no filters at all.

What's the trend? Is it toward more or less filtering?
That is a hard question because I think the trend is to make filters available if people want to use them. That's what I see.

What percentage of libraries receive federal funds from the three sources that CIPA covers?
I don't know the percentage of libraries. But even major public libraries, like Chicago public, receive some e-rate funding (that provides discounted Internet access). Most libraries, however, would probably give up that funding if it meant filtering their computers, which is the requirement of CIPA. When Sally Reed (formerly of the Norfolk, Va., public library) testified, she was right up front. She said her entire budget for Norfolk is $5 million. Sally's comment was if we don't have e-rate funding, we wouldn't have Internet access. Period. The end. Those kind of libraries in the less affluent areas just can't have access to the Internet without e-rate. There's something like $800 million at stake in e-rate funding alone.

You've been a librarian. If you were running a library right now, what would you do?
Given who I am and what I believe, I'd do anything and everything I had to do so that people I was serving got the information they wanted. I wouldn't have a filter anywhere near my library.

Remember that every single library in this country has some kind of policy to deal with the Internet and has undertaken libraries. The policies almost uniformly say that the computers in this library will not be used for illegal purposes. When you're accessing obscenity, child pornography, or for minors accessing "harmful to minors" materials, those are illegal activities.

Why do you think you won in Philadelphia? What made those judges so leery of the Justice Department's defense of CIPA?
I think we had a really solid case. I think that we're not pulling any punches. We're saying this is the reality of libraries today, to provide ideas and information. What the government wants to do is put on devices that will limit access to information on the Internet. The people who are going to be most affected will be the very people who most need the information and most need the library to secure the information.

What I keep coming back to is that the First Amendment provides the mechanism that allows us to govern ourselves effectively. In this post-9/11 environment, when so many people are trying to limit the amount of information and ideas that are readily accessible because these ideas and information may be misused, it becomes even more important that libraries stand their ground.

The Justice Department's brief to the Supreme Court says that libraries always make "content-based judgments in selecting material for their collections" and that CIPA is nothing new.
It seems that whoever was writing the brief hasn't been in a public library for years. Their idea of what a public library is for is so far removed from reality. They're going back to what we call material selection or collection development. Every library has a material selection policy that determines what kind of material should be in the collection, given who they're serving, where they're serving and so on.

Just because the government says certain things doesn't make them true.

The problem is that these collection development policies and procedures arose because libraries, up until the beginning of the 1990s, have always been limited in terms of money and bricks and mortar. In other words, every librarian had a certain amount of money to spend on physical materials and this was tempered by the amount of space they had in which to keep these physical materials. Now, for the first time in the history of the world, we have access to information that is not dependent on either (funding) or a physical space.

The government argues that "The Joy of Sex" and "The Joy of Gay Sex" may be available in libraries, but XXX videos and Hustler magazine usually aren't. Yet it's not difficult to find that content on the Internet, right?
Yes, but so what? It goes back to the fact that there are graphic materials in libraries--but the government may or may not want to recognize this. They mention "The Joy of Sex" and "The Joy of Gay Sex," and there are a lot of materials that talk about sexual relations. I imagine the Kama Sutra is available in many libraries.

Just because the government says certain things doesn't make them true. I guarantee you that the government has not looked at every library in the U.S. I guarantee you they have not tried to get materials via interlibrary loan if they're making that kind of statement.

The Philadelphia judges suggested that libraries could use less restrictive alternatives that would not violate the First Amendment, such as privacy screens. How well do they work in practice?
I think that they work well if people understand how to use them. I think the recessed screens work better, but they're a little more expensive.

This is an unusual case because the government is imposing filtering requirements only on libraries that choose to take federal money, in the same way that Congress forces states taking highway dollars to set a minimum drinking age of 21. If conditions from Congress are inevitable, doesn't that mean library funding should be left up to state and local governments instead?
The truth is the federal government funds 1 to 2 percent of money in libraries while 98 or 99 percent of funding to libraries in the U.S. comes from state and local governments. The feds have very little money involved.

CIPA author Rep. Ernest Istook, R-Okla., described your lawsuit last fall as a challenge "filed by liberal activists who chose a court where they expected liberal activist judges to side with them."
I find it amazing that a congressman has so little understanding of the First Amendment and our form of government and what it means to have access to information that we can govern ourselves effectively. The Istooks of this world sometimes amaze me with their lack of understanding of how our form of government works.