And now, an actual library-related posting...

Recent news regarding the Supreme Court's decision regarding the Child Pornography Prevention Action may have people confused as to which particular law was addressed. There are other laws in effect, one of which, the Children's Internet Protect Act, calls for libraries to filter information on their machines. The American Library Association is challenging the latter not because they are supporting child access to pornography, but because filtering in inexact and can deny access to crucial information (i.e., info on breast cancer) for people seeking unrelated information. But you know, librarians and their crusades are often misunderstood, which is why the ALA prepared a summary to dispel some of the confusion:

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The following information from ALA's Office of Intellectual Freedom might clarify questions you have had regarding the Child Pornography Prevention Action and the Child Online Protection Act. There is also summary information about the Children's Internet Protection Act.

In the last month, the Supreme Court handed down decisions on the constitutionality of two laws, one restricting child pornography (the
Child Pornography Prevention Act, or CPPA) and one on Internet content (the Child Online Protection Act, or COPA). At the same time, the American Library Association, the Freedom to Read Foundation, and other plaintiffs were in court challenging the constitutionality of the Children's Internet Protection Act (CIPA). Because there has been some confusion about these laws and the legal actions challenging them, OIF has prepared a brief summary distinguishing them:

Ashcroft v. Free Speech Coalition (Child Pornography Prevention Act)

The Child Pornography Prevention Act (CPPA) expanded the definition of child pornography. CPPA criminalized the creation of what is called
virtual child pornography," or "morphed" child pornography. Under CPPA images that appear to depict children but do not, including images of youthful-looking adults or images that are computer-generated would be illegal.

The Free Speech Coalition filed a lawsuit to overturn these provisions of the CPPA on the grounds that the restrictions violated the First Amendment. The U.S. Supreme Court agreed with the Free Speech Coalition, and in a decision handed down on April 16, 2002, found these parts of the CPPA unconstitutional on two grounds:

First, the law, as written, is overbroad, prohibiting otherwise legal, non-obscene images depicting teenagers engaging in sexual activity, such as filmed depictions of Romeo and Juliet or Lolita.

Second, the prohibition on child pornography is based on the link between the creation of the image and the sexual abuse of the children shown in the image. If an image is created by use of computer technology or by photographing adults pretending to be children, there is no basis in the law to ban the image.

The Child Pornography Prevention Act affected only those who create films and images. It did not affect libraries. The Freedom to Read Foundation, however, joined an amicus curae (friend of the court) brief in support of certain First Amendment arguments.

Ashcroft v. ACLU (Child Online Protection Act)

Congress passed The Child Online Protection Act (COPA) to replace the Communications Decency Act. (The Communications Decency Act was held
unconstitutional in a 9-0 decision by the Supreme Court in 1997.) COPA prohibits the transmission of any material over the Internet deemed "harmful to minors," if the communication was made for a commercial purpose.

The ACLU challenged COPA on behalf of a group of plaintiffs who provided commercial content for the Internet or who received such content. The trial court found the law unconstitutional on First Amendment grounds. The Third Circuit Court of Appeals agreed that the law was unconstitutional, but said it was unconstitutional because of
its reliance on "contemporary community standards." This made the law overbroad.

The U.S. Supreme Court reversed the Third Circuit's decision on May 13, 2002, on very narrow grounds. The Supreme Court did not decide on the
constitutionality of COPA, finding only that COPA's reliance on "community standards" does not by itself make the law unconstitutional. As a result, the Supreme Court returned the matter to the Third Circuit Court of Appeals for a fuller consideration of the First Amendment issues raised by COPA's restrictions on Internet speech.
All nine justices agreed that the injunction preventing any enforcement of COPA must remain in place while the lower courts further examine COPA's constitutionality.

Because COPA addresses only material sent over the Internet for commercial purposes, it does not directly affect libraries. FTRF joined an amicus curae brief in support of the parties' First Amendment argument.

ALA v. United States (Children's Internet Protection Act)

The Children's Internet Protection Act (CIPA) requires libraries and schools to install filters on their Internet computers to retain federal funding and discounts for computers and computer access. Because this law directly affects libraries and their ability to make legal information freely available to their patrons, the American Library
Association and the Freedom to Read Foundation filed a lawsuit to overturn CIPA.

The CIPA lawsuit is currently pending before the federal District Court in the Eastern District of Pennsylvania. In March 2002, a trial was held before a panel of three judges. The parties are now waiting for the panel to issue their decision. It is likely that the losing party will appeal the panel's decision to a higher court. Because Congress
designated CIPA as a law subject to the "fast track" provisions of federal law, any appeal will be made directly to the U.S. Supreme Court.
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Judith F. Krug
American Library Association

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Let me just add that while I understand the legal issues that led to the ruling regarding CPPA, I think it is now the duty of lawmakers to go back and legislate a more specific law for the protection of children. Also, while I understand the legal issue of creating images without using a child being considered "victimless", I think that doing so does lead to an environment where child pornography is tolerated. Note that you can be arrested for having hemostats or other "drug paraphenalia", even if they cannot prove you were using them for drugs (although I think that's necessarily a good thing). There must be a way to address this issue more clearly in a law to discourage child pornography and allow law enforcement to do their job. It is so difficult these days to determine what images are real and what images are created. On a related note, using a person's image, say, all those "nude pictures" of so-and-so, that have been cobbled together from various sources, is also wrong, and certainly damages the person's reputation, but at least that could lead to civil action (if you can find the person doing it, that is). Unfortunately to deal with these issues we need laws that are clear and do not overstep rights of free access to information.

So, if you encounter someone who says "librarians are supporting pornography" let them know that that is not the case, and point them to places like ALA.