Filtering = Banning ... or Not?

Ira Socol makes a great point on his blog today, that filtering websites equates to banning books. I agree with the general concept, but I want to try to make a distinction (no idea if I'll succeed).

Photocredit: DML East BranchFirst, here's the downside of that comparison ... school boards legally have nearly limitless power when it comes to banning books (which is why a PR campaign like Banned Books Week is all that is left). A few legal standards (may) apply to banning books: (1) if they have procedures they must follow the procedures, (2) the banning must not be viewpoint discriminatory or violate a constitutional right, and (3) there should be a legitimate pedagogical reason. I say (may) apply because the Supreme Court has not ruled in this area since 1982 and the courts have sort of done their own thing for a while. For instance, courts have been using (3) above from the Hazelwood case, even though Hazelwood came after Pico. Anyway, while these standards may apply, they almost always don't as courts generally rule for schools in any challenges to the school curriculum generally and to banning books specifically.

But, let's say that someone brings a case similar to Pico (hopefully without the procedural nonsense that Pico had) but instead of being about books, it is about Internet filtering in schools. Using Ira's example, let's say it is about banning Wikipedia. In order for the outcome to be different, the Justices would have to be able to distinguish between banning books and filtering the Internet. In effect, in order to get a different outcome we need to be able to articulate the differences. This is important because advocates of stopping the broad filtering of the Internet in schools, such as Ira, may still have legal avenues open to them and they may not be limited to solely PR campaigns.

So, let's try to legally distinguish the two.

(1) The intakes are different. A point made by the Courts is that because schools have the power to decide which books are bought, they should also have the power to decide which books are banned. Well the Internet doesn't work that way and the school doesn't "buy" anything, nor does it make intake decisions. Everything is potentially taken in as soon as they flip on the power switch.

(2) The library v. classroom distinction doesn't hold. The Courts have made a distinction between books in the classroom and books in the library ... seeming to give a little more flexibility to schools in banning library books than classroom books (and sometimes the other way around too). Again, the Internet is both a library and a classroom all the time. It is like a library in that there is a wealth of information, but it is also like a classroom because much of the curriculum is either directly on the Internet or tangentially on the Internet. So, let's throw this distinction out the window.

(3) Hazelwood shouldn't apply. It's not super clear that it should apply to banning books anyway, but the reasoning behind applying Hazelwood is that a book in the school may bear the imprimatur of the school (it is approved by the school because it is in the school). I think that is a stretch anyway, but to say that the school endorses a website because a student pulls it up on the school computer is more than a stretch. Thus, the curricular part of Hazelwood shouldn't apply (I wouldn't complain if it is still used to keep the First Amendment out of this). 

(4) Vague and Overbroad takes on a whole new meaning. Courts strike down laws as unconstitutional when they are deemed vague and overbroad. Now, lest you get too excited about your local jay-walking ordinance, this argument very seldomly succeeds. It really wasn't a useful argument in the banning books scenario because a specific book was being banned from a specific place. But, because filtering works differently (broad, sweeping blocking) the opportunity for a vague and overbroad argument seems reasonable. This is strengthened when one considers that the Supreme Court has already used this doctrine to strike down mulutiple filtering laws (see COPA + Reno v. ACLU). While these have been Congressional statutes, I am not sure a similar concept couldn't work in local schools as well.

(5) There already are procedures and clarity on what must be banned. Whereas with banning books there is a lack of statutory procedure for boards to follow, with electronic materials CIPA requires both filtering and procedures for making those decisions. Thus, there is much less discretion at the school board level. In fact, CIPA contains specific language about what may be blocked (anything that is "obscene, child pornography, or harmful to minors.") And while "harmful to minors" may seem amazingly vague and all encompassing, the essential purpose of the courts is to provide meaning to such meaningless terms (even "harmful to minors" is defined, thanks @budtheteacher). In effect, courts will determine themselves perfectly capable of determining what is "harmful to minors" if a website ban is challenged (i.e. - is Wikipedia really harmful to minors? - a judge may well say "no"). Anyway, the point here is that the absence of statutory law in relation to book banning gives school boards much more legal flexibility in the courts, and I don't think such flexibility is warranted in relation to Internet filters because there is a greater legislative framework. (Odd that CIPA may wind up being a helpful thing in this scenario.)

Anyway, that's a start in distinguishing banning books from Internet filtering. While I whole-heartedly agree with Ira's broad point, I think legally it makes a lot of sense to treat these two cases very differently ... which can only be good for those folks who seek to limit the school board's filtering power. Thus, I don't think the legal avenues are closed yet to specific, local challenges to school filtering decisions.