Porn is ok but safety of children is not.

[Ravi]

Nice, Reilly. A very murky issue indeed.

 

[jillian]

To clear up some issues, I thought it would be good to look at what the USSC said in 2003. I just skimmed the case, so this may not be 100% accurate. Regardless, it doesn’t clear up many issues.

The US government and the First Amendment are most clearly implicated by the fact that the federal government subsidizes internet use in libraries. It is also generally agreed that the US government cannot use its spending power to facilitate other entities (e.g., libraries) in their restricting of constitutional liberties. After that, it gets hazy.

Four justices (Rehnquist, Scalia, Thomas, O’Connor) said that libraries can decide what they want to keep in the library and suggest (but don’t go quite so far as to state unabashedly) that libraries just have to be rational in their selection of library materials. Libraries and the internet they provide do not rise to the level of a public forum (like a park) so there is no special First Amendment protection.

Kennedy doesn’t want to get into any serious constitutional issues. For him, it is enough that libraries can unblock internet sites quickly at the behest of patrons, so even if there is a First Amendment issue (which he declines to decide), no First Amendment protection is denied in this case.

Breyer says the libraries are bound by the heightened restrictions of the 1st Amendment, but here the ability to unblock materials is adequate, no 1st Amendment violation.

Stevens, Ginsberg and Souter don’t think the government can condition giving money on the basis of a library limiting the 1st Amendment.

Anyway, there we have it.

Are libraries on their own allowed to restrict view-point materials and face no 1st Amendment constraints? It isn’t clear. 4 say yes. 1 says nothing. 1 says not really. 3 say probably not.

Can the government use its spending power to compel libraries to block certain materials without 1st amendment concern? It isn’t clear. 4 say yes. 1 says nothing. 4 say no.

Can libraries use filtering technology even if it captures perfectly innocuous information? 4 say yes. 2 say yes, provided the filters can be turned off when asked. 3 say no.

Anway, I am sure that my skimming overlooked important issues, but this is what the case seems to say to me.

http://www.cdt.org/speech/cipa/030623decision.pdf

O'Connor really said that libraries don't rise to the level of a public forum? I expected that from Scalia, Thomas and Rehnquist, but not her. Interesting. I haven't seen the case(s), but is that because libraries grant a license by way of a library card and one isn't automatically able to take out materials?

Just wondering what the logic was if anyone knows. (That or if there's a case name, that would be great).

 

[jillian]

To clear up some issues, I thought it would be good to look at what the USSC said in 2003. I just skimmed the case, so this may not be 100% accurate. Regardless, it doesn’t clear up many issues.

The US government and the First Amendment are most clearly implicated by the fact that the federal government subsidizes internet use in libraries. It is also generally agreed that the US government cannot use its spending power to facilitate other entities (e.g., libraries) in their restricting of constitutional liberties. After that, it gets hazy.

Four justices (Rehnquist, Scalia, Thomas, O’Connor) said that libraries can decide what they want to keep in the library and suggest (but don’t go quite so far as to state unabashedly) that libraries just have to be rational in their selection of library materials. Libraries and the internet they provide do not rise to the level of a public forum (like a park) so there is no special First Amendment protection.

Kennedy doesn’t want to get into any serious constitutional issues. For him, it is enough that libraries can unblock internet sites quickly at the behest of patrons, so even if there is a First Amendment issue (which he declines to decide), no First Amendment protection is denied in this case.

Breyer says the libraries are bound by the heightened restrictions of the 1st Amendment, but here the ability to unblock materials is adequate, no 1st Amendment violation.

Stevens, Ginsberg and Souter don’t think the government can condition giving money on the basis of a library limiting the 1st Amendment.

Anyway, there we have it.

Are libraries on their own allowed to restrict view-point materials and face no 1st Amendment constraints? It isn’t clear. 4 say yes. 1 says nothing. 1 says not really. 3 say probably not.

Can the government use its spending power to compel libraries to block certain materials without 1st amendment concern? It isn’t clear. 4 say yes. 1 says nothing. 4 say no.

Can libraries use filtering technology even if it captures perfectly innocuous information? 4 say yes. 2 say yes, provided the filters can be turned off when asked. 3 say no.

Anway, I am sure that my skimming overlooked important issues, but this is what the case seems to say to me.

http://www.cdt.org/speech/cipa/030623decision.pdf

O'Connor really said that libraries don't rise to the level of a public forum? I expected that from Scalia, Thomas and Rehnquist, but not her. Interesting. I haven't seen the case(s), but is that because libraries grant a license by way of a library card and one isn't automatically able to take out materials?

Just wondering what the logic was if anyone knows. (That or if there's a case name so I can check out the case, that would be great).

 

[Ravi]

I don't know if you'd call it a license. The only requirement is proof that you live in the county or city.

 

[jillian]

I don't know if you'd call it a license. The only requirement is proof that you live in the county or city.

I don't know what their reasoning was. That's the only thing I can think of.

 

[ReillyT]

O'Connor really said that libraries don't rise to the level of a public forum? I expected that from Scalia, Thomas and Rehnquist, but not her. Interesting. I haven't seen the case(s), but is that because libraries grant a license by way of a library card and one isn't automatically able to take out materials?

Just wondering what the logic was if anyone knows. (That or if there's a case name so I can check out the case, that would be great).

Here is most of the excerpt of the Rehnquist, O'Connor, Scalia, Thomas opinion on this issue.

The principles underlying Forbes and Finley also apply to a public library’s exercise of judgment in selecting the material it provides to its patrons. Just as forum analysis and heightened judicial scrutiny are incompatible with the role of public television stations and the role of the NEA, they are also incompatible with the discretion that public libraries must have to fulfill their traditional missions. Public library staffs necessarily consider content in mak-ing collection decisions and enjoy broad discretion in making them.
The public forum principles on which the District Court relied, 201 F. Supp. 2d, at 457–470, are out of place in the context of this case. Internet access in public libraries is neither a “traditional” nor a “designated” public forum. See Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 802 (1985) (describing types of forums). First, this resource—which did not exist until quite re-cently—has not “immemorially been held in trust for the use of the public and, time out of mind, . . . been used for purposes of assembly, communication of thoughts between citizens, and discussing public questions.” International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672, 679 (1992) (internal quotation marks omitted). We have “rejected the view that traditional public forum status ex-tends beyond its historic confines.” Forbes, supra, at 678. The doctrines surrounding traditional public forums may not be extended to situations where such history is lacking.
Nor does Internet access in a public library satisfy our definition of a “designated public forum.” To create such a forum, the government must make an affirmative choice to open up its property for use as a public forum. Cornelius, supra, at 802–803; Perry Ed. Assn. v. Perry Local Educa-tors’ Assn., 460 U. S. 37, 45 (1983). “The government does not create a public forum by inaction or by permitting lim¬ited discourse, but only by intentionally opening a non-traditional forum for public discourse.” Cornelius, supra, at 802. The District Court likened public libraries’ Internet terminals to the forum at issue in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995). 201 F. Supp. 2d, at 465. In Rosenberger, we considered the “Student Activity Fund” established by the University of Virginia that subsidized all manner of student publica-tions except those based on religion. We held that the fund had created a limited public forum by giving public money to student groups who wished to publish, and therefore could not discriminate on the basis of viewpoint.
The situation here is very different. A public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of books to speak. It provides Inter-net access, not to “encourage a diversity of views from private speakers,” Rosenberger, supra, at 834, but for the same reasons it offers other library resources: to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality.

I don't really like the reasoning, but... what the hell do I know?

 

[AllieBaba]

O'Connor really said that libraries don't rise to the level of a public forum? I expected that from Scalia, Thomas and Rehnquist, but not her. Interesting. I haven't seen the case(s), but is that because libraries grant a license by way of a library card and one isn't automatically able to take out materials?

Just wondering what the logic was if anyone knows. (That or if there's a case name so I can check out the case, that would be great).

Probably has something to do with what I've been saying all along. Libraries are individual entities, funded by a variety of sources, and as such aren't "required" to provide anything.

 

[ReillyT]

Probably has something to do with what I've been saying all along. Libraries are individual entities, funded by a variety of sources, and as such aren't "required" to provide anything.

Funding by a variety of sources is a meaningless component, unless you are just noting that they are publicly funded by government.

In general, you misunderstand the decision of the court.

 

[jillian]

Here is most of the excerpt of the Rehnquist, O'Connor, Scalia, Thomas opinion on this issue.



I don't really like the reasoning, but... what the hell do I know?

Here's the cite, btw...

http://www.supremecourtus.gov/opinions/02pdf/02-361.pdf

The reasoning seems goofy ... the Court basically said that the internet is not a "traditional forum" for the exchange of ideas. That's just bizarre. It might not be a "traditional" means, but my understanding was that wasn't what the First Amendment was intended to protect.

I'm hopful the decision isn't long for this world... as it were.

 

[ReillyT]

Here's the cite, btw...

http://www.supremecourtus.gov/opinions/02pdf/02-361.pdf

The reasoning seems goofy ... the Court basically said that the internet is not a "traditional forum" for the exchange of ideas. That's just bizarre. It might not be a "traditional" means, but my understanding was that wasn't what the First Amendment was intended to protect.

I'm hopful the decision isn't long for this world... as it were.

That doesn't bother me so much as the notion that because a venue isn't provided specifically for expression, first amendment requirements are somehow compromised. This makes little sense once one acknowledges that the freedom to receive information is as much a part of the first amendments as the freedom to express, which the court has.

However, the Rehnquist decision was just a plurality. It isn't actually the law on this point.

 

[jillian]

That doesn't bother me so much as the notion that because a venue isn't provided specifically for expression, first amendment requirements are somehow compromised. This makes little sense once one acknowledges that the freedom to receive information is as much a part of the first amendments as the freedom to express, which the court has.

However, the Rehnquist decision was just a plurality. It isn't actually the law on this point.

You're correct, of course, about both the decision being a plurality and on the venue being provided for "expression". I think I was more surprised by the internet as not being a means of communication. I could almost hear them in my head saying "newfangled gadget... people don't use it for ideas...that's just silly"..

heh...

In all seriousness, I've always found the reasoning of both Rehnquist and Scalia to be flawless. I've also always found that they always start from the absolute incorrect basic premise, IMHO.

 

[Shogun]

To clear up some issues, I thought it would be good to look at what the USSC said in 2003. I just skimmed the case, so this may not be 100% accurate. Regardless, it doesn’t clear up many issues.

The US government and the First Amendment are most clearly implicated by the fact that the federal government subsidizes internet use in libraries. It is also generally agreed that the US government cannot use its spending power to facilitate other entities (e.g., libraries) in their restricting of constitutional liberties. After that, it gets hazy.

Four justices (Rehnquist, Scalia, Thomas, O’Connor) said that libraries can decide what they want to keep in the library and suggest (but don’t go quite so far as to state unabashedly) that libraries just have to be rational in their selection of library materials. Libraries and the internet they provide do not rise to the level of a public forum (like a park) so there is no special First Amendment protection.

Kennedy doesn’t want to get into any serious constitutional issues. For him, it is enough that libraries can unblock internet sites quickly at the behest of patrons, so even if there is a First Amendment issue (which he declines to decide), no First Amendment protection is denied in this case.

Breyer says the libraries are bound by the heightened restrictions of the 1st Amendment, but here the ability to unblock materials is adequate, no 1st Amendment violation.

Stevens, Ginsberg and Souter don’t think the government can condition giving money on the basis of a library limiting the 1st Amendment.

Anyway, there we have it.

Are libraries on their own allowed to restrict view-point materials and face no 1st Amendment constraints? It isn’t clear. 4 say yes. 1 says nothing. 1 says not really. 3 say probably not.

Can the government use its spending power to compel libraries to block certain materials without 1st amendment concern? It isn’t clear. 4 say yes. 1 says nothing. 4 say no.

Can libraries use filtering technology even if it captures perfectly innocuous information? 4 say yes. 2 say yes, provided the filters can be turned off when asked. 3 say no.

Anway, I am sure that my skimming overlooked important issues, but this is what the case seems to say to me.

http://www.cdt.org/speech/cipa/030623decision.pdf

looks like the MAJORITY ruling to me, eh?


Hell, there are dissenters in damn near every Scotus case, yes? Do dissenting opinions trump majority DECISIONS?

 

[Shogun]

I don't think they should provide the dvd or provide the player to watch it. There's nothing of value in the dvd, there is much of value on the internet. Like I said before, I agree keeping porn from kids is the right thing to do, I just disagree with your solution.

And, people have access to the INTERNET. but, not NET PORN. it's fun to make you dance like this Ravi. If you cannot fathom why a public library should provide the machinery to watch an external source of porn then how do you figure they should be responsible for providing you with an electronic version of the same? Don't confuse the INTERNETE with PORN. They are not synonymous.

 

[ReillyT]

looks like the MAJORITY ruling to me, eh?


Hell, there are dissenters in damn near every Scotus case, yes? Do dissenting opinions trump majority DECISIONS?

A majority decision requires 5 votes. Any position that attains 5 votes is the law, and any position that attains less than 5 votes is not the law.

Here, 6 justices agreed that filtering technology doesn't violate the 1st amendment, provided that it can be unblocked relatively quickly if requested. That is the law, based on 4 + 2. It is the reasoning of the narrowest position of the one of the two which puts the 4 over the top that is controlling. It sounds more complicated than it really is. Essentially, Kennedy sets the rule.

Whether libraries are bound to follow the 1st Amendment remains an open issue. 4 justices say no. 4 justices say yes. 1 justice (Kennedy) says that he isn't going to deal with that question because he doesn't have to.

 

[Ravi]

And, people have access to the INTERNET. but, not NET PORN. it's fun to make you dance like this Ravi. If you cannot fathom why a public library should provide the machinery to watch an external source of porn then how do you figure they should be responsible for providing you with an electronic version of the same? Don't confuse the INTERNETE with PORN. They are not synonymous.

I'm beginning to think you're a dope, no offense. There's a difference between providing something and not censoring something. Try to wrap your brain around the concept.

 

[Shogun]

What was to purpose of “Piss Christ”? Put a crucifix in a jar of urine and take a photograph? What news is there in that? What mental stimulation is there or need there be? It is to provoke and stimulate. People have different tastes, interests, likes, and dislikes. What does it matter? Art and contribution is in the eye of the beholder. It is all relative. Images, as well as books, bring up different emotions in people (anger, hate, love, lust, appreciation, etc. Perhaps one sees beauty in porn. It just doesn’t matter.

um, do millions of people log onto the net to jack off to piss christ? Is it art to create a video where one gal shits in a cup and the other eats it? I'd say that, abhorrent as some find it, pist christ has social relevance in comparing and contrasting how christians recieve and react to blasphemy when compared to, say, theo van gogh. We are not talking about art. We are talking about PORN.

porn is not relative. If you think so, then surf the net at home. The public is not responsible for providing you with erotic stimulation.

 

[Shogun]

A majority decision requires 5 votes. Any position that attains 5 votes is the law, and any position that attains less than 5 votes is not the law.

Here, 6 justices agreed that filtering technology doesn't violate the 1st amendment, provided that it can be unblocked relatively quickly if requested. That is the law, based on 4 + 2. It is the reasoning of the narrowest position of the one of the two which puts the 4 over the top that is controlling. It sounds more complicated than it really is. Essentially, Kennedy sets the rule.

Whether libraries are bound to follow the 1st Amendment remains an open issue. 4 justices say no. 4 justices say yes. 1 justice (Kennedy) says that he isn't going to deal with that question because he doesn't have to.

and yet, beyond the jargonish mumbo jumbo meant to downplay the FACT of the SCOTUS ruling, how many precedents have ever been set by a majority decision?

 

[Shogun]

I'm beginning to think you're a dope, no offense. There's a difference between providing something and not censoring something. Try to wrap your brain around the concept.

it's cool.. i'd run to ad hominems if I were you too. You clearly have the mental capacity to wade this far into this river of conversation.


Hey, you can blame my balls too if you need to.

 

[jillian]

looks like the MAJORITY ruling to me, eh?


Hell, there are dissenters in damn near every Scotus case, yes? Do dissenting opinions trump majority DECISIONS?

Not as to the reasoning, just as to the result in the particular case. Therefore, the case offers guidence, but mostly as dicta.

 

[ReillyT]

and yet, beyond the jargonish mumbo jumbo meant to downplay the FACT of the SCOTUS ruling, how many precedents have ever been set by a majority decision?

All precendents are set by a majority decision. It can't be precedential (at least bindingly so) unless 5 justices agree to it.

If what you are asking is what percentage of cases are decided by an straight majority vs. minority (dissenting) breakdown - i.e., what percentage of cases are not decided by plurality- then the percentage is very high, probably upwards of 90-95%.