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Virginia Libraries
Volume 46, Number 1

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Censoring the New Millennium

by Edwin S. Clay

The following remarks were delivered as part of the Gunston Hall 2000 Liberty Lecture Series. The series is funded by the Virginia Foundation for the Humanities. Gunston Hall was the home of George Mason, Father of the Bill of Rights.

Isn't it ironic? It's the year 2000- the new millennium-and yet we, the "we" being very parochial, meaning the United States, the most progressive, enlightened society ever, what subject are we addressing tonight? Censorship.

The U.S. Constitution's First Amendment, which protects free speech, is George Mason's legacy to the nation. As we sit within the walls of his home, we need to examine the significance of that 200-year-old legacy in an age where information is the new currency in the marketplace of ideas, a world the authors of the Bill of Rights could not have begun to imagine.

Robert Peck, author of Libraries, the First Amendment and Cyberspace, may have said it best: "When the United States enshrined the concept of free speech in the Constitution in 1791, it embarked on a potentially dangerous and unprecedented experiment in self-government." Government would no longer control the information available to its citizenry. This was a radical concept.

Only a century earlier, the colonial governor of Virginia, Sir William Berkely, had issued this paternalistic declaration:

I thank God, there are no free schools nor printing [in Virginia], and I hope we shall not have these for a hundred years; for learning has brought disobedience, and heresy, and sects into the world and printing has divulged them, and libels against the best government. God keep us from both.

Free schools (and public libraries) and printing did come to Virginia. And then came film, television and, most recently, cyberspace. I believe Governor Berkeley's concerns have far from disappeared. As long as there are human beings, there will be a perceived need for censorship. I contend that it is a part of human nature to want to present only access to thoughts that are considered "right" or "correct."

What has happened, however, is the advent of the information age. Traditional censorship must now try to catch up with technology. As there are now new types of non-print communication mediums, there are also now available new types of forms of censorship.

As Robert Peck succinctly puts it, "For the first time since the Constitutional Convention, information technology has provoked a fundamental debate about the structures of our national information policy." How much government regulation of free speech is necessary?

The public library is at the center of these debates and it is from this perspective that I can provide some insight on the nature of censorship in the new millennium and new methods necessary to protect freedom of speech. But, let's first define the term censorship, which is an elusive concept, meaning many different things to different people.

The Original Censors

I imagine the original Roman censors would be surprised at the modern pejorative interpretation of their job description. Ancient Rome established the office of censor in 443 BCE. Originally Roman censors were tasked with gathering information-keeping track of the population. In fact, modern-day census takers will begin the task next month for Census 2000. Over time, however, the Roman censor, who was well-regarded, became the keeper of public morals and the prosecutor of corrupt Roman senators. Here's where the slippery slope began.

In 212 BCE, the Chinese emperor, Shih Huang-ti, burned all the books he could find, so that history would start over with him; circa 1350 the Aztecs did the same thing to their conquered enemies; in 1501 onlookers stoned Michelangelo's statue David because of its nudity. And so on and so on, until in 1873, the United States passed the "Comstock Law" or Federal Anti-Obscenity Act. In addition to banning the sale of items "for the prevention of contraception," the law also banned such works of literature as Aristophanes' Lysistrata, Chaucer's Canterbury Tales, Boccaccio's Decameron, Defoe's Moll Flanders, and some editions of the Arabian Nights from being distributed through the U.S. mail.

Constitutional law has struck down much of the "Comstock Law" and we may now find it quaint, but it is significant that the law was passed 82 years after freedom of speech was first protected in the Bill of Rights. Over the years, the courts defined types of speech not protected by the First Amendment, including obscenity (which differs from pornography), "fighting words" and libel. But, by 1930, a member of Congress still protested from the House floor that a national survey found most children learned about sex from a number of books in wide circulation. The guilty books were the Bible, the dictionary, the encyclopedia, the novels of Charles Dickens, and the plays of Shakespeare. We are all familiar with the censorship fights over the publication of Joyce's Ulysses and the works of Henry Miller, or more recent battles in the 1960s over J.D. Salinger's Catcher in the Rye and Joseph Heller's Catch-22. The censors will probably never disappear.

The role of public libraries in the heated debate over the nation's access to information is a well-known and long-running one. A controversy over Mark Twain's Adventures of Huckleberry Finn, which began in 1885 when the Concord, Massachusetts Public Library banned it as "the veriest trash," still rages today. As recently as 1998, the U.S. Court of Appeals for the Ninth Circuit ruled on an attempt to remove the same book from a mandatory high school reading list in Tempe, Arizona because it supposedly contributed to a racially hostile learning environment. The court ruled it could not be removed.

Reasons and even court decisions may change, but controversies over access to information are intrinsic to a democratic society and its culture.

Who Is Accused of Censorship?

The list of local, state and national political organizations that have been accused of censorship is an odd assortment. It includes organizations associated with the Religious Right, such as The Family Research Council, a Judeo-Christian organization dedicated to preserving the family unit; the Christian Action Network, a grassroots lobbying group which opposes the discussion of homosexuality and sexual education in schools; and Family Friendly Libraries, co-founded by a local Fairfax County homemaker, after a well-publicized controversy over the distribution in Fairfax County Public Library branches of The Blade, a free newspaper for the local gay community. But, groups associated with left-wing or liberal politics also represent challenges to educational materials. The National Association for the Advancement of Colored People as well as the Council on International Books for Children have challenged material in educational settings. CIBC seeks to eliminate all books from libraries considered racist or sexist, including Little Black Sambo, Little Red Riding Hood, and Cinderella.

The Fairfax County Public Library is not immune to such challenges. In 1999, local library users protested the presence of five adult fiction books and two children's books on our shelves. The concerns of these readers were not as easy to dismiss as the challenges to classics that anti-censorship advocates decry. In each of the adult book cases, library users objected to graphic sex/and or violence. In the case of the children's books, one title was objected to because it is contained the words "shit" and "damn" and the other was challenged because it was felt to be sick and violent.

Our library system, like most throughout the country, has an established procedure for dealing with challenges to titles. A panel of three librarians reads and reviews each challenged title and recommends whether the book should be kept on the shelf, removed, or reclassified. Last year, in only one case, a children's book was moved from juvenile fiction to a fairy tale section. All the others remained in the same location on the shelves.

This process has come under increasing attack from groups such as Family Friendly Libraries, which believe parental participation in a child's education is too often seen as censorship. According to statistics gathered by the American Library Association's Office of Intellectual Freedom, parents initiate more than twice as many challenges to educational material as any other group. So what rights do parents have in the public arena?

Parental Rights, the First Amendment and the Internet

With the arrival of the Information Age, parental rights and the First Amendment have clashed more directly than at any other time in the history of this nation. Nobody would argue that the Internet doesn't have a dark side, so it is natural that parents would want to shield their children from its worst content. There are certainly many places on the information highway I would not want my teenage daughter to visit. In my own home, I can set the standards for her, but what many parents do not understand is that the Bill of Rights does not guarantee this same right in the public arena. Neither public librarians nor school officials can make the kind of subjective decisions that parents can. The First Amendment provides little protection for parental objection to materials, nor do parents have the right to force government assistance for their desires. To many, this seems a position hostile to community values and the authority of parents.

So, what is the constitutional status of public libraries that find themselves thrown into this electronic censorship fray? One court has called a public library "a unique sanctuary of the widest possible spectrum of ideas." More importantly, a federal Third Circuit Court decision has declared that a public library is a "limited public forum" where the public can exercise free speech rights, including the right to receive information, as long as they are exercised in a manner "consistent with the nature of the Library." No rowdy soapbox orators, please.

But, since Internet access now reaches an estimated 73 percent saturation point in public libraries, how about the rights of minors? You may be surprised to learn that while the rights of adults and children are not equal under First Amendment law, some rights for minors are still protected. Courts have declared that minors cannot be protected solely from "ideas or images that a legislative body thinks unsuitable for them." And courts have also ruled that distinctions need to be made between material unsuitable for near adults and young children. Your fifteen-year-old may be afforded more free speech protection than your five-year-old.

The most recent Supreme Court ruling to protect children's free speech rights was Reno vs. ACLU, which overturned the Communications Decency Act (CDA) of 1996. The act made it illegal to display any "indecent" material on a computer network unless an attempt was made to restrict access to anyone under the age of 18. Court cases have determined that different types of media are afforded different levels of First Amendment protection. Commercial television has different restrictions than cable television, based on a user's accessibility, or right to choose. The CDA imposed harsher regulations on the Internet than are set for other media. Someone who posted Catcher in the Rye on the Internet could potentially be prosecuted for obscenity charges, even though the print version of the book was protected by the First Amendment. The act was immediately challenged and in June 1997, the Supreme Court ruled that the CDA violated the First Amendment because it restricted free speech on the Internet. The Court also suggested that filtering was a better method for protecting minors than government supervision of Internet access. But, the controversy over the right to free speech versus the protection of children continues. Congress passed the Child Online Protection Act shortly after the CDA was negated. The same groups which fought the CDA have challenged the law and, in January 1999, a U.S. district judge issued a preliminary injunction against its enforcement.

The Filtering Controversy

Some public libraries use filtering programs -seither by choice or local government edicts-on all or some of their public Internet access computer stations. Anti-censorship groups have objected, not just to filtering, which often blocks legitimate sites, but to private companies determining what will or will not be censored in a public place.

A landmark Federal court decision in nearby Loudon County may lead the way for constitutional law on filtering. The Loudon County Library Board decided to install X-Stop, one of the best filtering programs available at the time, on the public library's computer terminals. Adults could override the system with the permission of a librarian, and children could have uncensored access with the permission of their parents. The filters were mandated because the Library Board and a group that supported the program, the National Law Center for Children and Families, believed taxpayers should not have to pay for pornography. In November 1998, however, a Federal judge ruled that the filtering software on public library computers violated the First Amendment.

Questioning ALA'S Library Bill of Rights

That public libraries sometimes find themselves in an awkward position defending unfettered Internet access is demonstrated by a flurry of attacks on the American Library Association's Library Bill of Rights. Adopted in 1948, the Bill of Rights has been amended several times, but in part it states:

Books and other library resources should be provided for the interest, information and enlightenment of all people of the community the library serves. Materials should not be excluded because of the origin, background or views of those contributing to their creation.

Critics of this "right to read" have argued that public libraries and public school educators also have a responsibility to inculcate values. As one critic says, "If a publication lacks legal protection, e.g. obscenity, it is hard to justify the freedom to read it. Freedom to read does not imply a duty of government to supply the reading material."

Lessons Learned from the Censorship Wars

This argument became familiar during a number of years in the 1990s when the Fairfax County Public Library Board weathered a storm of protest over the decision to allow a free hand-out published for the local gay community to be distributed in library branches. Critics suggested that the Library would not allow hand-outs on bomb-making or neo-Nazi publications to be distributed. A vocal minority, when protestors failed to persuade the Board to remove the publication, they attempted to convince local officials to set up "adult" restricted areas in libraries and forced the library to purchase anti-gay material to "balance" its "pro-gay" collection.

I learned something interesting during this timer-fthat despite all the talk about "intellectual freedom" and "parental rights," censorship is actually about power-who controls the access to information.

The Constitution's Bill of Rights evolved from its Federalist authors' Enlightenment beliefs that "knowledge is a public good that leads to invention, truth and social progress." This is not an idea shared by all. Some conservative thinkers argue that truth does not necessarily follow from access to information. As an example, they suggest allowing the Flat Earth Society to exist does not affect the truth of the shape of the planet. As you can see, the free speech debate is far from simple.

So, where does this debate put those of us, such as myself, who fervently believe in Mason's legacy and the protection of freedom of speech in an era where cyberspace has drastically changed the playing field? If the architecture of a public library creates community space for the free exchange of ideas, can the similar architecture of virtual space create a space for community dialogue as well? I believe we need to understand that the key to regulating free speech lies with those who have the access to the information. Today, it is those who structure the gateways to that information. Lawrence Lessig, a Harvard law professor, has argued in a recent book, Code and Other Laws of Cyberspace, that government must get closer to the machine to maintain democratic values. It is no longer politicians and the judiciary who regulate free access to information, but the technocrats who design the programs. "How the code regulates, who the code writers are, and who controls the code writers- these are the questions that any practice of justice must focus on," Lessig concludes.

John Stuart Mill may have best understood the power and responsibility of information brokers in the 21st century when he said in the 19th:

If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he...would be justified in silencing mankind.

I think Mr. Mason would have agreed.

Bibliography

Christiansen, Peter G. Justifying the Freedom to Read: From Democratic Right to Human Right. Public Library Quarterly, v. 17(2) 1999, pp. 18-31. Godwin, Mike. Free Speech 1, Censorship 0. Wired. September 1997, p. 94.

Hull, Mary E. Censorship in America: A Reference Handbook. ABC-CLIO, Inc. Santa Barbara, CA. 1999.

Mason, Marilyn Gill. Sex, Kids and the Public Library. American Libraries. June/July 1997, pp. 104-105.

Peck, Robert. Libraries, the First Amendment and Cyberspace: What You Need To Know. American Library Association. Chicago, IL. 2000.

Shumate, T. Daniel, ed. The First Amendment: The Legacy of George Mason. George Mason University Press. Fairfax, VA. 1987.

Stover, Mark. Libraries, Censorship, and Social Protest. American Libraries. November 1994, pp. 914-916.

Symons, Ann K. and Sally Gardner Reed. Speaking Out! Voices in Celebration of Intellectual Freedom. American Library Association. Chicago, IL. 1999.


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