by Mary Minow rev. 4/20/97
You've probably heard a lot of legal jargon bandied about lately regarding software filters in public libraries. Terms like "state action," "strict scrutiny," "public forum" "least restrictive means," and "unprotected speech." This article is an attempt to help explain what these terms mean, and why they are important to libraries that offer the Internet to their patrons.
What is state action?
State action means government action such as laws, regulations, ordinances etc. This is the absolute starting point in any First Amendment challenge. When a parent, a video store, a motion picture industry, or any private party, chooses to restrict speech, that is their prerogative. Many people misunderstand this, crying out "First Amendment!" when no federal, state or local government has restricted speech. When a private Cyber Cafe or a parent uses filters, there is no First Amendment violation.
Are public libraries State actors? Clearly, mandates by city and county governments restricting speech (e.g. by requiring filters) constitute state action. Less clear are actions by library directors. Although they are also State actors (hired and paid by government), they are professionals paid to exercise their expertise in selecting and weeding materials.
Isn't obscenity illegal? I heard that obscenity is "unprotected speech" . . .
Not all speech enjoys equal protection under the Constitution. Speech, by default, enjoys "freedom" under the constitution, but over the past hundred years or so, the Court has crafted a series of balancing tests in order to uphold laws that restrict speech in a number of areas such as child pornography, advocacy of illegal conduct, and incitement. The Court keeps dividing speech into new categories, such as obscenity, indecency, commercial, "core political" and many others. As case law has evolved, these different categories of speech have different "levels" of protection by the Court.
Child pornography enjoys no constitutional protection; thus every state is free to legislate against it.
"Obscenity" is considered "unprotected speech," subject to "rational review" by the courts. That doesn't mean it's illegal. Obscenity is legal in the absence of state or local laws to the contrary. (That's why there are pockets of flourishing activity, such as New York City and San Francisco.) However, if a state (or local government) chooses to restrict obscenity, it may do so, subject to the Miller test. That is, obscene speech cannot wrap itself in full constitutional protection, but the government must have a rational basis for restricting the speech. This contrasts with more "protected speech." "Core" political speech enjoys the strongest "protection," and "strict scrutiny review" by the courts. "Indecent speech," a lower value speech, has been treated with a sliding scale of "intermediate review" by the courts and will be discussed below.
The issue of defining obscenity remains. In 1964, Justice Potter Stewart tried to define hard-core pornography but gave up, saying infamously, "I know it when I see it."
In 1973, the Court decided Miller v. California, setting forth the familiar three part obscenity test we have today:
a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest
b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. This last element is not based on a community standard -- for example, Maplethorpe's posthumous exhibit of sadomasochistic-theme photographs were found to have serious value.
What is this "strict scrutiny" and "rational review" you're talking about?
In a simplified hierarchy, they're not hard to understand. The gist of this goes back to state action. When the government makes a law, that law can be challenged as unconstitutional if a plaintiff claims it violates the First Amendment. The level of scrutiny the Court gives to that law is decided at the threshold, and to a large extent, this determines the result.
Simplified hierarchy of First Amendment standards of review:
Strict Scrutiny: The government must show that the law is necessary to achieve a compelling governmental interest (such as the protection of children), and that the law uses the least restrictive means necessary to advance that interest. It's often called "strict in scrutiny, fatal in fact," referring to the tiny percentage of laws that are upheld when strict scrutiny is applied.
Intermediate Scrutiny: The government must show that the law is necessary to achieve a substantial, or important governmental interest, and that the law is narrowly tailored to that interest. This is a real sliding scale, adjusted up and down based on the court's philosophy, composition, and whim.
Rational Review (or Weak Scrutiny): The government need only show a legitimate state interest and that the law is rationally (or sometimes even might be rationally) related to that interest. Only a tiny percentage of laws are struck down when rational review is applied.
What level scrutiny do filters in the public library get?
Well, at present, this is an untested case. Since the level of review is so important to the case, the categorization is really the crux of the issue. Free speech advocates want to fit the question into the strict scrutiny review. Filter advocates want to get down to intermediate or rational review. Here's a little more detail on the standards and my analysis:
Strict Scrutiny and filters
With the CDA, free speech advocates argued strenuously that prohibiting speech that may be made available to minors was NOT the least restrictive means to meet the government interest in protecting children. The ALA and others argued that filters are less restrictive than the wholesale banning of speech in the CDA case. Certainly they are. The important thing to remember is that today's state-of-the-art filters are still restricting protected speech, even if unintentionally. (not to mention that all the ones I've ever seen DO intend to restrict protected speech, e.g. information on cocaine, white power, indecent speech etc.)
Examples of when Strict scrutiny is applied:
Note: there are notable exceptions to strict scrutiny applied to content-based laws. When the Government is "proprietor," "educator," "employer," or "patron(subsidizer)," scrutiny ratchets down to "rational review." For example, in Rust v. Sullivan (1991), the Court found upheld a gag order which forbid doctors from speaking about abortion at federally funded clinics. It is not overly restrictive since the doctors are not forbidden from speaking; it's just that the Government doesn't have to subsidize that speech. On the other hand, public libraries are public forums (ratchet back up to strict scrutiny.) Further, filters arguably restrict speech based on viewpoint (ratchet back up to strict scrutiny.)
Examples of when Intermediate Scrutiny is applied:
Examples of when Rational Review is applied
Tell me more about the public library and the public forum.
The traditional public forum includes just three places: streets, parks and sidewalks. As noted above, government restrictions on speech in public forums are subject to strict scrutiny.
Over the years, additional places have been added to "public forum" status; these are called "designated public forums." When Government property is opened up in a public capacity, such as a public library (contrasted with Government as proprietor, educator, employer or patron) the resulting "designated public forum" enjoys the same status as the traditional public forum.
The issue of whether or not public libraries are public forums actually reached the Supreme Court in Brown v. Louisiana (1966) when "five young Negro males" went into the Audubon Regional Library in Louisiana, and sat quietly even when they were asked to leave on account of their race. The Court held that they had the right to engage in a silent vigil in the public library, a limited public forum.
Libraries are considered "limited public forums." Libraries have opened themselves up to expressive activity -- specifically the activity of RECEIVING information. This does not mean that the public has full First Amendment rights of expressive activity, such as making public speeches in the reading room. (Expressive activity is protected in library meeting rooms.)
Thus, public libraries today are considered designated limited public forums. For an recent appellate court analyzing the public library as a designated, limited public forum, see Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992).
You said you'd discuss "indecent speech."
"Indecent speech" does not fit into the Court's hierarchy of speech well at all. It is sometimes defined as the first two prongs of the Miller obscenity definition, without the serious prong (serious literary, artistic, political or scientific value.) The Court has dealt with non-obscene sexually explicit speech inconsistently. In Young v. American Mini Theatres (1976), and in Renton v. Playtime Theatres (1986) it upheld zoning ordinances to regulate (not prohibit) "adult" entertainment. Different rationales were given, such as "secondary effects" of crime. This category of speech is susceptible to some regulation. The famous George Carlin "seven dirty words" case, FCC v. Pacifica (1978) upheld a regulation against broadcasting indecent material during hours when children were likely to be present. Broadcasting, as a medium, has been given less protection than print, because it "invades the home."
What about time, place and manner restrictions -- where do these fit in?
When the government applies restrictions on speech on a content neutral basis, it may apply time, place and manner restrictions. For example, loud noise at night may be regulated, but loud political speech cannot take place if loud partying speech cannot. This doesn't really apply to filters, which restrict on the basis of content.
Are there other considerations in the analysis?
Even unprotected speech, such as obscenity, has safeguards against laws that are overbroad, vague, or (in some cases) use prior restraint.
Mary Minow is a Stanford law student, hoping to graduate in June. She is a CLA member, a Commissioner of the Cupertino Public Library, and a former public librarian. She can be reached at email@example.com
Note: All cases listed above are U.S. Supreme Court cases unless otherwise indicated.
.One of Clinton's first actions in office was an executive order overturning this policy.