You really have to hand it to U.S. Solicitor General Ted Olson. The man can say absolutely anything and still keep a straight face. Here he is in the Supreme Court today, arguing for a law that conditions federal funding to public libraries on their willingness to install wildly ineffective "smut filters," and he actually manages to argue—three times by my count—that these filters will enhance free speech.
Today's case, United States v. American Library Association, represents Congress' 2,000th (or so it feels) attempt to regulate Internet pornography, as it relates to children. This too takes some chutzpah because so far the Supreme Court has hated every previous attempt to regulate Internet smut, starting with Reno v. ACLU in 1997, when the court invalidated the 1996 Communications Decency Act, and last year when it sent parts of the narrower Children's Online Protection Act back to the lower courts for more work. So, CIPA followed on COPA, and in 2000 Congress enacted a third round of legislation, aimed at libraries and schools instead of Web-site operators. The Children's Internet Protection Act requires that public libraries receiving federal funds install filters for every computer connected to the Internet, whether used by adults or children. Almost immediately, a special three-judge panel in Philadelphia enjoined the government from enforcing it. The panel unanimously found CIPA facially invalid because it forced libraries, as state actors, to violate the First Amendment rights of the public. The provision relating to public schools was never challenged. Nobody, it seems, is actually for encouraging kids to access Internet porn from public libraries; the problem is that most of the current filtering software both "underblocks" and "overblocks," meaning, respectively, that lots of smut still gets through the filter and that lots of blocked Web sites contain constitutionally protected and educationally important material. (Sites banned by the porn filter include the Knights of Columbus Council 4828, the California Jewish Community Center, and Orphanage Emmanuel, the Republican National Committee's Web site, a juggling site, and health sites devoted to baldness and halitosis.) Plaintiffs in the suit include a teenager unable to research homosexuality on the Web and another who couldn't research his mother's breast cancer. As my colleague Julie Hilden has observed, it's silly to look to software to make determinations about what is obscene, patently offensive, or harmful to minors, given that humans can barely manage to do so either.
Now here is where my waitress at lunch points out that this doesn't sound like a lawsuit—it sounds like an IT problem. If the software companies could get the glitches out of the filtering programs, it seems the libraries wouldn't have much to complain about. Justice Sandra Day O'Connor (who sometimes reminds me of a slightly cranky waitress herself) makes this precise point at oral argument, saying, "The software isn't perfect. But should our doctrine take that into account?" In many ways, this case would just go away if the feds would just hire this guy I know at Microsoft for a few weeks ….
So, enter Ted Olson, arguing in defense of CIPA, and his case rests on proving that there is no difference between what libraries do when picking and choosing which books to shelve and picking between Web sites to block. This case, he says, involves "libraries simply declining to put on their shelves what has traditionally been kept off the shelves." Justice Anthony Kennedy, whose love of free speech borders on the obscene, asks whether library patrons—who are allowed to request that the filtering software be unblocked—can simply stroll up to the librarian and say "unblock it all," without explaining what he's researching. Olson says patrons can, and the justices seem to all take him on faith that this is so. Indeed they begin to cite it as certainty, which leads Justice John Paul Stevens to wondering "why the libraries are wasting a lot of money litigating, when they can just hire someone to come in every day and say 'switch off the blocking mechanism.' " He gets a big laugh, but it's a good point: If turning off the filters is as ho-hum as Olson contends, the libraries and the ACLU don't have much of a case.
Justice Kennedy also has a problem with Olson's simple analogy between libraries' collection decisions and the Internet, insisting that while librarians have to pick and choose which books to stock, the Web is a "whole new medium." And David Souter adds that unlike book-stocking decisions, librarians are cut out of the Web filtering decisions because only the software proprietors know what is being filtered. As a result, librarians are passive bystanders, "forced not to stock material, which they don't know what it is, and they have no way to find out."
Justice Ruth Bader Ginsburg wonders whether librarians are entitled under the law to unblock the filters for their own use, and Olson, refusing to answer directly, insists that they can do so if they need to make a decision about whether a site is "properly blocked." Later, Souter takes up this line of questions and becomes increasingly frustrated as Olson continues to not answer beyond saying that librarians can unblock filters "when performing administrative functions." (Which sounds like solicitor-general-speak for "no.")
A good question from Kennedy: Wouldn't it be a lot easier just to have two separate computers, a filtered one for children and an unrestricted one for adults—you, know, in the section behind the black curtain, with the bound back editions of Hustler and the very sticky floors? Olson replies that Congress could have done this lots of ways, but it chose a rational mechanism (the financial blackmail method) that is constitutionally sufficient. Olson then offers up the incredibly weird argument that this statute actually saves librarians from being inundated with lawsuits from authors suing because their book wasn't stocked. Because if the blocking software is unconstitutional, then "so are the types of decisions librarians have been making all along." This is part of Olson's whole "librarians love this" defense of a statute librarians seem to pretty universally detest—as evidenced by the fact that the named plaintiff in the case is, in fact, the American Library Association.
Paul Smith argues the case on behalf of the libraries and experiences a rather rough ride from a court that was supposed to hate any attempt to regulate Internet speech. Smith starts off by arguing public-forum doctrine—an ugly, rough-and-tumble universe of guesses as to whether any particular street, shopping mall, mailbox, or, in this case, library has traditionally been seen as open to all comers for speech purposes. Smith balances his whole case on the contention that libraries are no different from public thoroughfares when it comes to permitting free speech, and it's not clear at all that he has five votes to support that contention. Chief Justice William Rehnquist and Justice Antonin Scalia have no interest in hearing that libraries are public forums; in fact Scalia is of the opinion that libraries can and do censor what he calls "garbage" all the time. Justice Stephen Breyer worries that if you can't constitutionally filter porn in public-school libraries, public schools are all going to stop using computers for anything. And O'Connor makes it amply clear that she thinks it's way too premature to start "importing wholesale public forum analysis into libraries."
Breyer is seemingly convinced by Olson's assertion that all one needs to do to access a restricted site is politely ask to have it unblocked, and no one looks impressed when Smith argues that it's inconvenient to have to stop your research session to ask for the filter to be turned off. (It being inconvenient to stop your research session to urinate, as well.) And Smith ends up having to answer even Souter, querying whether Olson is right and this case is as simple as adults saying: Turn off the filter.
So, Olson somehow wins the paradigm today and will possibly also win the case. He convinces most of the bench that there's no difference between refusing to stock Henry Miller and flipping on the porn filter and goes so far as to say that this statute somehow "expands" free speech. While it's not at all clear to me how men attempting to research male-pattern baldness in public libraries can be stymied, while free speech wins the day, I'll hand this to Olson: He almost had me persuaded as well.