April 28, 2011

New York Public Library: Out of Touch with the Public and the Law, Statement by Donna Rice Hughes, President, Enough Is Enough®
 

 A fistfight between an impatient person and a porn-viewing patron at the Brooklyn Public Library has reignited an old debate regarding whether adults should have free and easy access to hardcore pornography, or illegal adult pornography, known under the law as obscenity, at their local public library.  A spokesperson for the library has explained that the library is complying with patrons’ First Amendment rights, and thus provides Internet access to pornography to adult patrons.

While libraries do not stock obscene videos of “Where the Girls Sweat” or “Fetish Fanatic 8″, patrons at the New York Public Library has easy access to this hardcore content through taxpayer-funded Internet access. Why? Because this particular library doesn’t understand the laws pertaining to this issue.

The library spokesperson stated: “We comply with CIPA (Children’s Internet Protection Act) and our policy forbids users to access materials that are legally defined as obscene, as child pornography, or, in the case of persons under 17, as harmful to minors. The library is committed to creating a positive experience for everyone, and we expect those who use the library to do so with respect to our policies and to others.”

As indicated by her statement, the Brooklyn library spokesperson has apparently confused both the definition of CIPA and the legal definitions of obscenity and child pornography covered by CIPA. Hence, the library’s feeble attempt to comply with CIPA has left adult and child library patrons unprotected.

At this point, three lessons are in order, which will hopefully benefit this particular library and others operating under the same misguided misunderstanding of these laws.

First, a history lesson: This is déjà vu for Enough Is Enough (EIE).  In the mid-nineties EIE realized that schools and libraries were not protecting students and library patrons from the deluge of obscenity and child pornography available online. As an early pioneer of Internet safety efforts since 1994, EIE sprang into action.  I personally prepared a briefing book, containing news stories and pictures of the types pornography available in both schools and libraries, for Senator John McCain, then head of the Senate Commerce Committee, and other Senators and asked: Should taxpayers pay for our schools and libraries to be pornography outlets?  Congress didn’t think so. The Children’s Internet Protection Act (CIPA) passed with overwhelming bipartisan support in both the House and Senate and was signed into law by President Clinton. The American Library Association (ALA), the American Civil Liberties Union (ACLU) and other groups immediately launched a legal challenge, questioning the constitutionality of the Children’s Internet Protection Act. Fortunately for the sake of children and families, with the leadership of EIE and other groups, the U.S. Supreme Court upheld the constitutionality of CIPA.  As a result, schools and libraries that implement CIPA as intended by Congress are better able to ensure the Internet is safely accessed.

Second, a CIPA law lesson: CIPA requires schools and libraries using federal “e-rate” subsidies to dedicate some of those funds to install software that filters out pornography. Specifically, child pornography, obscenity, and soft-core content, legally defined as “harmful to minors”, must be filtered for those aged 17 or under. For adult library users, both child pornography and online obscenity should be filtered, since neither of these is constitutionally protected under current federal statutes. There exists a common misconception that the only type of illegal pornography for adults is child pornography. Nothing could be further from the truth. In layman’s terms, the First Amendment does not protect obscenity for adults period, whether in the library, or anywhere else. Although CIPA was written to be idiot proof, common misunderstandings emerge from confusion over the legal definitions of pornography, specifically obscenity.

Hence, the third and final lesson:  Pornography Law 101: There are three types of pornography legally defined by the Supreme Court, and CIPA refers to all three:

  1. Child pornography: Child pornography is material that visually depicts children under the age of 18 engaged in actual or simulated sexual activity, including lewd exhibition of the genitals.
  2. Obscenity:  Obscenity is graphic material that focuses on sex and/or sexual violence. It includes close-ups of graphic sex acts, lewd exhibition of the genitals, and deviant activities such as group sex, bestiality, incest and excretory functions.  For clarification, obscenity is not to be confused with soft-core pornography, known under the law as harmful to minors/indecent content.
  3. Harmful to Minors (HTM) material: Harmful to minors material represents nudity or sex that has prurient appeal for minors, is offensive and unsuitable for minors, and lacks serious value for minors. There are “harmful to minors” laws in every state

For libraries attempting to correctly implement CIPA, they must not confuse the laws above, which distinctly refer to different types of content (the legal definitions are provided in the above links). Obscenity is not protected under the First Amendment for children or adults, however, it is available in abundance, both online and offline. People often ask: If it’s illegal, why is it everywhere?  Simply put, obscenity laws have not been aggressively enforced, even though the U.S. Supreme Court has repeatedly upheld federal obscenity laws.

Additionally, individuals should not equate the widespread availability of illegal adult material with community acceptance of hardcore content. In October, 2009, a national poll by Harris Interactive found that 76% of individuals surveyed “totally disagreed” that viewing hardcore adult pornography on the Internet was morally acceptable.  Likewise, 74% “totally disagreed” that viewing hardcore adult pornography on the Internet was generally harmless entertainment.

The New York Public Library seems to have been shaped by the misguided (and radical) position of the ACLU, whom we successfully battled in the mid-nineties and early 2000s.  While they may be claiming to uphold CIPA in principle, they are failing to uphold CIPA in practice.  Several patrons have testified that they regularly witness individuals viewing hardcore content.  While computer terminals include privacy extensions, many individuals are not using these screens, and even when individuals do use the screens, patrons have complained they can still partake audibly in the hardcore content.  It is clear that the New York Public Library is not in full compliance of CIPA and, as a result, is not fulfilling its responsibility to protect children and adult library patrons.

As the overwhelming majority of Americans understand, the problem with pornography, as with many things, is that it affects more than those who just look at it.  For some individuals, pornography is progressively addictive in nature.  Research shows that pornography affects attitudes, values and behaviors, and pornography has been linked to sex crimes against women and children, innocent victims who did not view pornography.  A number of federal legal precedents have also found that pornography was used as a tool in sexual harassment, and the New York Library should do more to implement responsible policies to protect themselves and taxpayers from legal liability.

Four Action items:

  1. EIE will send a complimentary copy of our Internet Safety 101SM program to any public library requesting our material on a first-come first-served basis.  You can contact us here.  The Internet Safety 101SM® program educates, equips and empoweres adults with the information and resources necessary to protect children from pornography, sexual predators, cyberbullies and other dangers associated with social networking, online gaming and mobile devices.  Additionally it includes clear definitions of pornography and its harm to children. The program is a strong resource both for library staff and patrons.
  2. Get your own copy of the 101 program for yourself and/or your public library.
  3. Join us in the War on Illegal Pornography to get our nation’s obscenity laws enforced.
  4. Support our work with your financial gift. EIE remains on the cutting edge of Internet safety efforts nationally, but we need your help to continue to sound the alarm about the need to protect children from this content.