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US high court considers web porn filter

The US Supreme Court questioned on Wednesday whether a law requiring public libraries to filter out Internet pornography restricted free speech or simply extended the editorial control librarians have always exercised.

Just as librarians decide which books to stock on their shelves, they should filter out sexually explicit content deemed harmful to minors, argued a government lawyer in defense of a law that was struck down by a lower court last year.

But librarians should be able to decide whether filtering is appropriate, rather than having that decision forced on them by Congress, countered a lawyer representing a library group that challenged the law.

"The federal government has no business using its spending power to ... push librarians away from their professional judgment," said Paul Smith, who argued the case for the American Library Association.

Justices asked whether libraries should be forced to rely on a clumsy technology that sometimes blocked information on sex education and other legitimate subjects, but also noted that adult patrons could ask to have the filters removed.

"What is the great burden on speech?" Justice Stephen Breyer asked. "I grew up in a world where they kept certain materials in a separate place in the library and you had to go and ask for them."

"You still have the problem of going up to the librarian and saying, 'Please turn off the smut filter,'" Smith replied.

At issue is the Children's Internet Protection Act, which requires libraries that receive federal technology subsidies to use content filters such as Websense Inc. and N2H2 Inc. to screen out obscenity, child pornography, and sexually explicit material deemed harmful to minors.

The subsidies, which have totaled nearly $1 billion since 1999, can make up 90 percent of a library's technology budget.

Unlike previous congressional attempts to limit online pornography, CIPA does not restrict the First Amendment right to free speech because libraries that do not wish to use the filters can opt not to accept federal money, argued Solicitor General Theodore Olson. Patrons can also chose other places to go online, he said.

"The First Amendment does not require libraries to sponsor the viewing of pornography," Olson said, pointing out that few libraries opt to include pornographic movies or magazines in their collections.

Smith said that analogy did not work because while librarians buy books one at a time, a single phone line makes available all of the content on the Internet, including commercial sites, personal sites and other material that would not typically show up on a library's shelves. For that reason, an Internet connection is more akin to a public park or sidewalk, where few restrictions on speech apply.

"The library as a whole is not a public forum, as material is selected, but the Internet is," he said. "It is the most pure form of public forum you can imagine."

But librarians commonly block many Internet functions, such as chat rooms and e-mail, Justice Antonin Scalia said, leading him to wonder if they were public forums after all.


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