New Legal Memo for Libraries on CIPA Implementation From The CWA

Anonymous Patron writes "The Concerned Women Of America have posted at memorandum of legal opinion on Library Procedures for Disabling Software Filtering and Unblocking Web Sites
By Janet M. LaRue, Chief Counsel, Concerned Women for America at
cwfa.org [PDF]"

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Censor's tactics

Bingo. Remember what I wrote earlier about the future of

censor's tactics
? Now we see it. For example:

Furthermore, libraries face paying significant damage awards
to library employees who prevail in hostile work environment claims
based on exposure to unrestricted Internet pornography. The
Minneapolis Public Library settled such a hostile work environment
claim with 12 library employees on August 15, 2003, in the amount of
$435,000:

Litigation-based fear, uncertainty, and doubt. Many people have an
inaccurate model of the desires of censors, thinking that they can
somehow be appeased. It's just not true. This is not a statement of
partisanship on my part. It's a statement of fact, based on reading
the censor's own material.
Their goal here is imposing
censorware as much as
possible, and they will keep pushing on various grounds to that end.

Re:Censor's tactics

Bingo? I thought we were playing Hangman ;-) This document is no different in purpose than ALA's was in telling libraries that the Loudoun decision exposed them to potential lawsuits if they filtered adult material. Why did ALA do this? Seth says it himself: "litigation-based fear, uncertainty, and doubt." The speech-related legal domain has very few certainties. The "tactic" of touting an organization's tendentious legal interpretation of a judgment for the purpose of warning others of possible liabilities isn't new, nor is it limited to one side.

Re:Censor's tactics

Using court rulings to establish law is unconstitutional and it has been going on far too long in the USA. The only way to have a stable society is to have the law established through duly elected representatives. They make the law. The courts apply it. The executive branch enforces it.

Remember the separation of powers? It is a great idea. This idea of using the courts to make precendence and intimidate everyone into a particular path is the road to tyranny.



In this regard it matters less right now whether the abuse of power goes in favor of the right or the left. Either way it is an abuse of constitutional limits. If we do not get a handle on this we will all be living at the whim of an a select and untouchable few.

The biggest problem isn't who controls the courts but that the courts control us. That is not the original intent and it becomes more obvious everyday that the people have less control over their lives that they should.

Re:Censor's tactics

The courts have to interpret what the words of the law mean before anybody can apply or enforce it. That the courts simply apply the law blindly is what the religious fascists want. You cannot call a system based on that kind of folly a system of justice.

Aside from that, CIPA and the ruling on it are both unconstitutional. The idea that I can only be permitted to look at materials for a lawful purpose and must seek permission to do so creates a presumption of guilt. Not to mention that the overwhelming majority of pornographic material that will be blocked does not constitute proscribable obscenity.

Re:Censor's tactics

This could open a can of worms. As an atheist can I claim a hostile work environment if there is exposure to religious Web sites? The separation of church and state might apply. As a veegan, exposure to cooking with meat sites? As a ... exposure to ... sites.

As far as I recall the sites were pornographic, not obscene. This is just folks being offended by what is in the library. If a library does not have something to offend every person walking through the door, it is not a public library.

Re:Censor's tactics

Dear Fang-face,

You seem to be of two minds. I mean you want the courts to not just apply the law but to also be able to create it from whole cloth. That is the first mind.

The second mind is that the CIPA decision is unconstitutional. Could you have made my point any clearer? It is unconstitutional? Says who? According to the court it is very constitutional. And according to your first assertion the court cannot be wrong.

Now based on your first mind, your second mind is wrong. Or, based on your second mind, your first mind it wrong.

Which is it?

You also say:

"That the courts simply apply the law blindly is what the religious fascists want. You cannot call a system based on that kind of folly a system of justice."

Well, if the courts are operating on laws made by duly elected representatives that must face the people and whose decisions can be overturned by elections - I would say that this is the best possible system of justice in the world. Remember the famous statue of a blind-folded lady holding the scales of justice?

All of this presumes a moral public that is interested in justice to begin with. If they only want their way, then basically we are all down the tubes.

The point to drive home is this: do you want nine people (often far less in lower courts) to decide all of the most important issues in our country with no fear of reprisal? Or do you want the most important issues to be debated by hundreds of people at the federal level in congress with input from millions? Which will yield a stable society in the long run?

Didn't we have a revolution to guarantee the second option? We had a fine tyrant in the person of King George.

The Federalist

Re:Censor's tactics

You are right in that there is a big can of worms. All the better that it be decided by legislatures rather than courts. Courts and the use of precedence have proven to be very unstable.


Consider the recent sodomy decision. At one point the court declared no constitutional right to sodomy. Just 17 years or so later there is one. If we all changed our mind that quickly it would have sailed through the legislature. So obviously something is up. It doesn't matter which side you fall on - it is the process I am critiquing.


Better to let the legislatures make the laws and then let people work hard to elect their representatives. It won't mean that everyone gets their way. No system in any possible world can accomplish that. But our constitution, if followed, offers us all sorts of chances for smoother transitions than the whim of the court.



There should be a consideration of civility. We have to be able to live together in a city. That is a tough call - one that needs debate and easy correction.

The Federalist

Re:Censor's tactics

You seem to be of two minds.

That would explain the
voice in my head.

I mean you want the courts to not just apply the
law but to also be able to create it from whole cloth.

Hogwash.
The legislature makes laws but those laws must be tested by the courts. It's a
fair enough system and I have no objections to it.

The second mind
is that the CIPA decision is unconstitutional.

What else would you
call a law that violates the principles of the Bill of Rights?

It is
unconstitutional? Says who?

Me.

According to the court
it is very constitutional.

And yet the U.S. Supreme Court has made
questionable calls before. I reiterate: the provision that a person must state
an intent to act lawfully in surfing the net creates a presuppostion of guilt,
and that a person must basically seek permission to have access to information
through Big Brother controlled computers is an abridgment of free speech. If it
is not, kindly explain how it is not. The court ruling that CIPA is not
constitutionally infirm because it contains an opt out clause is something I
can agree with. The other aspects of its ruling I do not agree with.

We are
stuck with this decision whether we like it or not, whether it is a good
decision or not, but the fact that the Supreme Court made the decision is no
guarantee that the decision is entirely within the bounds of the Bill of Rights.

And according to your first assertion the court cannot be
wrong.

Oh? And where exactly do I make any such claim? Courts can
be wrong, whoever-you-are, including the various Supreme Courts of the free and
democratic countries around the world. I do not make the mistake of assuming
that just because they are qualified to sit on the bench that supreme court
justices are infallible. You have read far too much into whatever it is you
misinterpreted.

You also say: "That the courts simply apply the law
blindly is what the religious fascists want. You cannot call a system based on
that kind of folly a system of justice." Well, if the courts are operating on
laws made by duly elected representatives that must face the people and whose
decisions can be overturned by elections - I would say that this is the best
possible system of justice in the world.

How many laws, exactly,
have been repealed by general elections? An election is a chance to throw an
elected parasite out on his ass; it does not repeal any of the bad laws he has
gotten passed. Elections do not, alas, create any kind of incentive in the
remaining elected parasites to respect the human dignity and the rights of
individuals.

Remember the famous statue of a blind-folded lady
holding the scales of justice?

The one no one is allowed to look at because she
has a naked tit and has been hidden behind a curtain of self-righteous
indignation? A prime example of censorship and the attitudes of the current
administration.

All of this presumes a moral public that is
interested in justice to begin with.

What are you smoking? I'd
like to know because I've got a party on for this weekend.

If they
only want their way, then basically we are all down the tubes.

Listen, pal, if you think the overwhelming majority of individuals operate out
of some sense of higher purpose then you better get your meds checked. Most
people don't give a damn about anything more than putting food on the table and
keeping a roof over their heads. Most of the underwhelming minority, the
filthy rich, people like Ken Lay, Dick Cheney, and George Bush jr., care more
for grabbing every last cent they can. Lofty ideals such as justice do not
present any clear, immediate benefit to someone who is scrabbling to survive
unless he is in the process of getting screwed, and rich trash like the above
mentioned are pseudo-sociopathic and just don't care about ideals.

The point to drive home is this: do you want nine people (often far
less in lower courts) to decide all of the most important issues in our country
with no fear of reprisal?

Ultimately, yes. Any court that cannot
operate with full judicial independence is too subject to the political climate.
And your intimation that cases are tried by fewer than nine justices in lower
courts is an argumentum ad numerum. A ruling is not a good one just because
nine people say it is when three people say it isn't. The nine can still be
wrong.

Furthermore, while appeals are commonly heard by a panel of three
justices, petitioners can ask that the ruling by the panel of three be heard by
a full panel of fifteen. Then the petitioner can appeal to the Supreme Court.

Or do you want the most important issues to be debated by hundreds
of people at the federal level in congress with input from
millions?

Hundreds of people who care only about how their opinion
is going to affect their standing in the polls? Hundreds who are swayed by the
political climate; by fearmongering such as with the USA [un]PATRIOT Act?

No.
I expect more from them. Unfortunately, I also know that it is irrational to
expect more from them. These are the people who should be operating out of a
higher sense of purpose. Unfortunately, most of them are deluded fools who
believe that their petty prejudices constitute a sound foundation for justice
and liberty for all.

However, the system works well enough and I'll settle
for that.

Didn't we have a revolution to guarantee the second
option? We had a fine tyrant in the person of King George.

And you
have a fine tyrant in the person of the present King George.

L'Chaim

Re:Censor's tactics

I mean you want the courts to not just apply the law but to also be able to create it from whole cloth.


Hogwash. The legislature makes laws but those laws must be tested by the courts. It's a fair enough system and I have no objections to it.


*But then the legislatures are limited to passing what the courts will approve. Hate CIPA all you want but it is the direct result of judicial review. There were two runs at it before CIPA and each time the court instructed the legislature as to what it could and could not do. Therefore the court made the CIPA to begin with – no wonder it approved it.


The second mind is that the CIPA decision is unconstitutional.


What else would you call a law that violates the principles of the Bill of Rights?



The Bill of Rights is a collar around the federal governments throat to preserve freedom. But when the government is passing out free money (taken from those who earned it) then it can and will attach strings to it. Expect no less. If you don’t want the string don’t take the money – it is not a violation of any rights because you are not entitled to the money to begin with. Now, whether the government should be in this business to begin with is another discussion.


It is unconstitutional? Says who?


Me.


According to the court it is very constitutional.
And yet the U.S. Supreme Court has made questionable calls before. I reiterate: the provision that a person must state an intent to act lawfully in surfing the net creates a presuppostion of guilt, and that a person must basically seek permission to have access to information through Big Brother controlled computers is an abridgment of free speech. If it is not, kindly explain how it is not. The court ruling that CIPA is not constitutionally infirm because it contains an opt out clause is something I can agree with. The other aspects of its ruling I do not agree with.


First of all remember that these are Big Brother’s computers and not yours. Only libraries completely under local control can be run as the community desires. If you really want no strings then buy your own. Community property can and most often does require certain civil considerations. If you don’t believe me try sun bathing on the basketball court down at the city park.


We are stuck with this decision whether we like it or not, whether it is a good decision or not, but the fact that the Supreme Court made the decision is no guarantee that the decision is entirely within the bounds of the Bill of Rights.


On the contrary, the supreme court is the final arbiter of what the Bill of Rights means – thanks to unconstitutional judicial reviews. Since it enjoys that right, your criticism (and mine!) is meaningless.


And according to your first assertion the court cannot be wrong.


Oh? And where exactly do I make any such claim? Courts can be wrong, whoever-you-are, including the various Supreme Courts of the free and democratic countries around the world. I do not make the mistake of assuming that just because they are qualified to sit on the bench that supreme court justices are infallible. You have read far too much into whatever it is you misinterpreted.


There court cannot be wrong if it is the final arbiter of the meaning of the constitution – going so far as to claim it often means the opposite of what was intended. So if you want judicial review you have to live with the consequences. We will all live at their whim as this trend continues.


You also say: "That the courts simply apply the law blindly is what the religious fascists want. You cannot call a system based on that kind of folly a system of justice." Well, if the courts are operating on laws made by duly elected representatives that must face the people and whose decisions can be overturned by elections - I would say that this is the best possible system of justice in the world.


How many laws, exactly, have been repealed by general elections? An election is a chance to throw an elected parasite out on his ass; it does not repeal any of the bad laws he has gotten passed. Elections do not, alas, create any kind of incentive in the remaining elected parasites to respect the human dignity and the rights of individuals.


Plenty of laws are repealed by a variety of processes. If you haven’t noticed there was welfare reform in the mid 90’s directly thanks to elections. That’s just one example.


Remember the famous statue of a blind-folded lady holding the scales of justice?
The one no one is allowed to look at because she has a naked tit and has been hidden behind a curtain of self-righteous indignation? A prime example of censorship and the attitudes of the current administration.


A clever dodge of my point. Justice has to be blind. We can’t have laws that only apply to certain classes of people. The law must be the same for everyone and applied to individual circumstances.


All of this presumes a moral public that is interested in justice to begin with.
What are you smoking? I'd like to know because I've got a party on for this weekend.


So let me get this straight. You think the Court did a bad thing – but at the same time you think there are no bad things?


If they only want their way, then basically we are all down the tubes.


Listen, pal, if you think the overwhelming majority of individuals operate out of some sense of higher purpose then you better get your meds checked. Most people don't give a damn about anything more than putting food on the table and keeping a roof over their heads. Most of the underwhelming minority, the filthy rich, people like Ken Lay, Dick Cheney, and George Bush jr., care more for grabbing every last cent they can. Lofty ideals such as justice do not present any clear, immediate benefit to someone who is scrabbling to survive unless he is in the process of getting screwed, and rich trash like the above mentioned are pseudo-sociopathic and just don't care about ideals.


Then let’s hope that trend reverses. If we don’t expect moral behavior we might as well pack it in. Actually the very fact that you object to the court means that you think there is some sort of rule out there and our laws are reaching for it. The court messed up (I gather) according to your thoughts on universal law. Otherwise they are just messing with your will and not your rights. That is, those rights that derive from being created. Otherwise you have no rights.

The Federalist

Re:Censor's tactics

*But then the legislatures are limited to passing what the courts will approve.

No, no, no. You have a thorough misunderstanding of the situation. Legislatures are limited to passing what the Bill of Rights allows. The Bill of Rights is a metalaw; it's on a whole different level from standard laws. Standard laws must conform to the metalaw, metalaws do not conform to standard laws. The court system has a two fold purpose. One is to test laws to see how they conform to the Bill of Rights, and the other is to apply them once non-conformity has been weeded out.

However, the Supreme Court doesn't always get it right. The Equal Rights Act of 1867 or so, for instance, was supposed to grant equal rights to everybody. It did grant them to the former slaves, but Amerindians were excluded. Despite that, it passed into amendment. The 14th, if I recall correctly. Sure, that law was "legal" -- but it wasn't right or constitutional.

Better Check With the Library's Own Attorney

Anyone who would like to rely on this memo should check with their local attorney and have them vet this memo.The memo's author neglects to note that there is no private right of action for CIPA - that is, no individual can sue the public library for "insufficient" enforcement - the only remedy is a complaint to the FCC, just like the complaints filed against television networks for their prime-time programming. The only possible financial penalty is a mandated refund of the e-rate discount, if it is found that the library failed to install a "technological protection measure."Per the new FCC commentary on the revised CIPA regs, the one thing that makes CIPA constitutional is the adult patron's right to request (and receive!) unfiltered Internet access. Per Justice Kennedy, any significant burden or block on that right can lead to an "as-applied" challenge to the law (with the individual library as the defendant.) Something to consider in light of the memo's advice.

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