Quote of the Day: Jensen on Library Neutrality

"Take a simple example involving the common assumption in the United States that the capitalist economic system is the only rational and morally defensible way to organize an economy. There can be, and often is, much debate about how to structure and administer a capitalist economy, but the system itself is rarely contested, despite centuries of resistance to capitalism around the world and considerable intellectual work underlying that resistance. Now, imagine that a librarian wants to produce a display of the libraryʼs resources on economics to encourage patrons to think about the subject. In many libraries such a display would include no critiques of capitalism, but simply literature that takes capitalism as a given. Such a display that ignores critical material likely would produce no controversy (except perhaps a few complaints from anti-capitalists about the absence of critique, who could easily be dismissed as cranks). It is unlikely that school boards or city councils would take up the issue of the obvious bias against socialism and other non-capitalist economic systems. Consider what might happen if a librarian charged with this task actually produced a display that carefully balanced the amount of material from as many different perspectives as s/he could identify. In many places, that display would be denounced for its 'obvious' socialist politics. Now, imagine that a librarian, observing the way in which Americans are systematically kept from being exposed to anti-capitalist ideas in the schools and mass media, decides to organize materials that compensate for that societal failure by emphasizing critiques of capitalism. That librarian could be guaranteed not only criticism and charges of political bias, but likely disciplinary action.

My point is simply that all of those decisions have a political dimension, which is unavoidable. My concern here is not which one is the right decision, but that the librarian whose display is in line with the conventional wisdom likely will escape criticism while any other choices will raise questions about 'politicizing' what should be a professional decision. Unfortunately, this neutrality game will derail rather than foster serious discussion of the issues."

- from "The Myth of the Neutral Professional" by Robert Jensen in Progressive Librarian Issue #24.

On "Filtering and the First Amendment"

Since Deborah Caldwell-Stone's American Libraries article "Filtering and the First Amendment" covers similar ground to my earlier essay "Public Forum Doctrine in U.S. v. American Library Association," I'd like to do some friendly nit-picking.

Quick Background

In the United States, public and school libraries are bribed (rather than coerced) into filtering Internet access for minors. This is done through CIPA, the Children's Internet Protection Act. In 2003, the constitutionality of CIPA was challenged but upheld in U.S. v. American Library Association.

Clarity

Caldwell-Stone's article is helpful because misconceptions about the requirements of CIPA are indeed widespread:

"Often, it is because the institutions and individuals responsible for implementing these policies misunderstand or misinterpret CIPA and the Supreme Court decision upholding the law. Among these misunderstandings is a belief that an institution will lose all federal funding if it does not block all potentially inappropriate sites to the fullest extent practicable, or that the Supreme Court decision authorized mandatory filtering for adults and youths alike. Another mistaken belief is that it does not violate the First Amendment to impose restrictive filtering policies that deny adults full access to constitutionally protected materials online." (Caldwell-Stone, 2013)

I appreciate the way she raises awareness that CIPA policies aren't legal requirements and that no library's filtering has been judged too lax to qualify. If a library doesn't want to filter, they don't have to filter! If a library wants to filter lightly, they can still collect CIPA funds.

Not So Clear

My nit-picking concerns the last sentence of the quote above. Caldwell-Stone is correct that US v. ALA did not authorize mandatory filtering for adults, but the Supreme Court didn't forbid it either. Legally, it's an open question. Caldwell-Stone evidently feels strongly that such filtering violates the First Amendment (a very respectable position to have!), but it's easy for readers to be misled when legal facts and legal hopes are presented in parallel phrases.

This bit is also problematic:

"Does CIPA itself, or the 2003 Supreme Court opinion, actually authorize a library to limit an adult’s access to constitutionally protected speech? A close reading of the district court’s opinion reveals that it fails to address the Supreme Court’s directive: Libraries subject to CIPA should disable filters for adult users to assure their First Amendment rights." (Caldwell-Stone, 2013)

The Supreme Court gave no such "directive." There was no majority opinion (at all), and no such directive can be found in the plurality opinion. In fact, none of the six judges concurring in judgment said so. The Court's language is along these lines:

"Assuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled." (US v. ALA, Opinion of the Court)

Note the qualifier "assuming." The Court isn't taking a position on whether or not "such erroneous blocking presents constitutional difficulties." Suppose it were a problem for libraries to block constitutionally protected speech: easy disabling would be an antidote. Suppose it weren't a problem to block such speech: now it's an unnecessary antidote. Since this specific case didn't hinge on the constitutionality of "such erroneous blocking," the judges didn't—and couldn't—rule on the issue.

Another concurring judge wrote:

"If some libraries do not have the capacity to unblock specific Web sites or to disable the filter or if it is shown that an adult user’s election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge, not the facial challenge made in this case." (US v. ALA, Kennedy's concurrence)

It's entirely reasonable to conclude that a library with mandatory filtering for adults might be judged as violating First Amendment rights, just as a state denying same-sex marriage licenses might be judged (very soon, one hopes) to be violating equal protection rights. Then again, either of these situations might be judged to be constitutional.

One last concurring judge:

"Perhaps local library rules or practices could further restrict the ability of patrons to obtain 'overblocked' Internet material. [...] But we are not now considering any such local practices. We here consider only a facial challenge to the Act itself." (US v. ALA, Breyer's concurrence)

Hopefully it's clear at this point that mandatory Internet filtering for adults is not clearly unconstitutional or constitutional. I applaud Caldwell-Stone for her explanations and her advocacy; I just wish she would separate the two a little more explicitly.

References

Caldwell-Stone, D. (April 2, 2013). Filtering and the first amendment. American Libraries. Retrieved from http://americanlibrariesmagazine.org/features/04022013/filtering-and-first-amendment

United States v. American Library Association, 539 U.S. 194 (2003).

Quote of the Day: Moon on Parental Despotism

"We need to take a hard look at the rights of the young to access information. It is an issue we have avoided for far too long. And what seems to have become our traditional stance—that it is up to parents to control the reading and viewing of their offspring—may be politically expedient but it isn't particularly principled.

The arrival of compulsory education provided one escape route for those children whose parents seemed determined to establish a dynasty of ignorance. Some parents still struggle to protect their children from education but, by and large, society has come to accept education as among the rights of the young. Society usually does things for selfish reasons, however, and this may be no more than acceptance that the need for an educated next generation to continue or improve upon what we have wrought is so important that it must even supersede the rather despotic rights we have customarily accorded to parents.

The question for us, though, is do we then accept that the child's or young adult's right of access to knowledge stops when the school doors close? Do we believe that education happens only in school, that libraries are not educational, that they are less important, less relevant than schools? If we do not believe these things, then how come we do not protest as strongly when an individual parent bars the door of the library (or the adult section) to his or her child as when the governor of a state stands in the schoolhouse door and bars entry to children who seek nothing more dangerous than an equal crack at a decent education?"

— from Eric Moon's inaugural address as president for the American Library Association at the conference in Detroit in 1977, as quoted in Lillian Gerhardt's critical editorial on page 9 of the Sept. 1977 issue of School Library Journal.

Quote of the Day: Public Libraries as Literary Culture Incubators

"The third and last class of objections to public libraries to which I shall direct your attention relates to the kind and quality of the books circulated. These objections, which are usually made by educated and scholarly persons, are based on an entire misconception of the facts in the case. The objectors do not divest themselves of the old ideas that libraries are established for the exclusive benefit of scholars; whereas the purpose of these [i.e. public libraries] is to furnish reading for all classes in the community. On no other principle would a general tax for their support be justifiable.

The masses of a community have very little of literary and scholarly culture. They need more of this culture, and the purpose of the library is to develop and increase it. This is done by placing in their hands such books as they can read with pleasure and appreciate, and by stimulating them to acquire the habit of reading. We must first interest the reader before we can educate him; and, to this end, must commence at his own standard of intelligence.

The scholar, in his pride of intellect, forgets the progressive steps he took in his own mental development—the stories read to him in the nursery, the boy's book of adventure in which he revelled with delight, and the sentimental novel over which he shed tears in his youth. Our objector supposes that the masses will read books of his standard if they were not supplied with the books to which he objects; but he is mistaken. Shut up to this choice, they will read no books. When the habit of reading is once acquired, the reader's taste, and hence the quality of his reading, progressively improves."

Poole, WM. F. (1876). Some popular objections to public libraries. The American Library Journal 1(2), p. 48-49. [Paragraph breaks added for readability.]

Sex, Violence, and the First Amendment

The U.S. Supreme Court has ruled that states may pass laws restricting the sale of sexual materials to minors, but may not pass similar laws for violent materials. The difference lies in the Court's traditions regarding obscenity as an exception to First Amendment free speech rights.

Short version: obscenity has to do with sex, not violence.

Protected and Unprotected Speech

The First Amendment does not list exceptions for "the freedom of speech." Nevertheless, the Supreme Court has set aside certain kinds of speech as "unprotected" by the First Amendment. When speech is unprotected, state governments are effectively able to restrict it however they see fit. One major category of unprotected speech is obscenity. Here is the key authoritative text, now known as the Miller Test:

"[O]bscene material is unprotected by the First Amendment. 'The First and Fourteenth Amendments have never been treated as absolutes.' We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value."

— Miller v. California, 413 U.S. 15 (1973), edited for readability

Notice how obscenity is limited to "works which depict or describe sexual conduct." By definition, violence without sexual conduct can't be classified as legally obscene.

Variable Obscenity

In 1965, the owner of a Long Island lunch and periodicals business sold porn magazines to a 16 year old boy. New York had a law with wording similar to an earlier version of the Miller Test, with the addition of "for minors," "to minors," etc. The vendor was charged for violating this law and the case eventually made its way to the Supreme Court.

Can something be protected, non-obscene speech for adults and yet be obscene, unprotected speech for minors? The Courted decided: yes, it can!

"We do not regard New York's regulation in defining obscenity on the basis of its appeal to minors under 17 as involving an invasion of such minors' constitutionally protected freedoms. Rather [the New York law] simply adjusts the definition of obscenity 'to social realities by permitting the appeal of this type of material to be assessed in term of the sexual interests' of such minors. That the State has power to make that adjustment seems clear, for we have recognized that even where there is an invasion of protected freedoms 'the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.'"

— Ginsberg v. New York, 390 U.S. 629 (1968), edited for readability

This is a BIG DEAL. The Court is saying that New York can classify material that's not obscene for adults as obscene for minors because, in general, states can vary the definition of an unprotected speech category where minors are concerned.

Gov. Schwarzenegger vs. Kratos

In 2005, California passed a bill prohibiting the sale or rental of violent video games to minors, where:

"'Violent video game' means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that does either of the following:

(A) Comes within all of the following descriptions:

(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.
(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.
(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.

(B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim."

— California AB-1179, edited for readability

Section (A) should look familiar. It's similar to the Miller Test adjusted for minors, with two major differences. Part (i) drops the sexual requirement so that it can be applied to violence. Part (iii) completely inverts the serious value check. In the Miller Test, the presence of serious value overrides the other two parts and makes a work non-obscene no matter how offensive it is to a community. In the California law, the presence of offensive elements voids any value in the work. Section (B) puts a ban on additional games, just in case section (A) didn't throw a wide enough net. Altogether, this makes three likely grounds for questioning the law's constitutionality:

• Dropping the sexual requirement.
• Inverting the value check.
• Banning games that fall outside the Miller-esque framework.

Interestingly, the Supreme Court slapped down the law for the first and most basic reason: attempting to regulate violent content rather than sexual content.

The Limits of Control

In Ginsberg, the Court had decided that the obscenity exception for free speech rights could come in an adult version and a minor version. California's video game law raised another question:

Can there be free speech exceptions that only come in a minor version?

There isn't a free speech exception when it comes to violent content for adults, so (1) a brand new exception would be required and (2) it would only apply to minors. First, the Court pointed at precedent against introducing new free speech exceptions for adults:

"Last Term, in Stevens, we held that new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated. Stevens concerned a federal statute purporting to criminalize the creation, sale, or possession of certain depictions of animal cruelty. [...] We held that statute to be an impermissible content-based restriction on speech. There was no American tradition of forbidding the depiction of animal cruelty—though States have long had laws against committing it.

The Government argued in Stevens that lack of a historical warrant did not matter; that it could create new categories of unprotected speech by applying a 'simple balancing test' that weighs the value of a particular category of speech against its social costs and then punishes that category of speech if it fails the test. [...] We emphatically rejected that 'startling and dangerous' proposition.

— Brown v. Entertainment Merchants Association, 564 U.S. 08-1448 (2011)

Violence may not be a valid free speech exception for adults, but can't it be an exception that only applies to minors?

"[The California Act] does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. California does not argue that it is empowered to prohibit selling offensively violent works to adults —and it is wise not to, since that is but a hair’s breadth from the argument rejected in Stevens. Instead, it wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children.

That is unprecedented and mistaken. '[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.' Erznoznik v. Jacksonville [...]. No doubt a State possesses legitimate power to protect children from harm [...], but that does not include a free-floating power to restrict the ideas to which children may be exposed. 'Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.' Erznoznik"

— Brown v. EMA, 564 U.S. 08-1448 (2011)

In other words, minors are only subject to the same basic free speech exceptions as adults, though these exceptions may be applied differently to minors. There is no basic free speech exception that has to do with depictions of violence, therefore violent video games are constitutionally protected speech for Americans of all ages.

This applies to books too, if anyone is still reading those things. I do recommend reading the whole majority opinion in Brown v. EMA. It makes excellent points about moral panics, censorship, and violence in children's literature.

Quote of the Day: Mill on Intellectual Freedom

"He who knows only his own side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion. The rational position for him would be suspension of judgment, and unless he contents himself with that, he is either led by authority, or adopts, like the generality of the world, the side to which he feels most inclination. Nor is it enough that he should hear the arguments of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. This is not the way to do justice to the arguments, or bring them into real contact with his own mind. He must be able to hear them from persons who actually believe them; who defend them in earnest, and do their very utmost for them. He must know them in their most plausible and persuasive form; he must feel the whole force of the difficulty which the true view of the subject has to encounter and dispose of, else he will never really possess himself of the portion of truth which meets and removes that difficulty. Ninety-nine in a hundred of what are called educated men are in this condition, even of those who can argue fluently for their opinions. Their conclusion may be true, but it might be false for anything they know: they have never thrown themselves into the mental position of those who think differently from them, and considered what such persons may have to say; and consequently they do not, in any proper sense of the word, know the doctrine which they themselves profess."

— John Stuart Mill, On Liberty


And even more relevant to yesterday's quote:

"[The Catholic Church] makes a broad separation between those who can be permitted to receive its doctrines on conviction, and those who must accept them on trust. Neither, indeed, are allowed any choice as to what they will accept; but the clergy, such at least as can be fully confided in, may admissibly and meritoriously make themselves acquainted with the arguments of opponents, in order to answer them, and may, therefore, read heretical books; the laity, not unless by special permission, hard to be obtained. This discipline recognizes a knowledge of the enemy's case as beneficial to the teachers, but finds means, consistent with this, of denying it to the rest of the world: thus giving to the élite more mental culture, though not more mental freedom, than it allows to the mass. By this device it succeeds in obtaining the kind of mental superiority which its purposes require; for though culture without freedom never made a large and liberal mind, it can make a clever nisi prius advocate of a cause. But in countries professing Protestantism, this resource is denied; since Protestants hold, at least in theory, that the responsibility for the choice of a religion must be borne by each for himself, and cannot be thrown off upon teachers.

— John Stuart Mill, On Liberty


Yes, "at least in theory." The same applies to voters who trust political teachers to tell them all they need to know about other views, without exposing themselves directly.

Quote of the Day: Craig on Intellectual Freedom

"Be on guard for Satan’s deceptions. Never lose sight of the fact that you are involved in a spiritual warfare and that there is an enemy of your soul who hates you intensely, whose goal is your destruction, and who will stop at nothing to destroy you. Which leads me to ask: why are you reading those infidel websites anyway, when you know how destructive they are to your faith? These sites are literally pornographic (evil writing) and so ought in general to be shunned. Sure, somebody has to read them and refute them; but why does it have to be you? Let somebody else, who can handle it, do it. Remember: Doubt is not just a matter of academic debate or disinterested intellectual discussion; it involves a battle for your very soul, and if Satan can use doubt to immobilize you or destroy you, then he will."

— William Lane Craig, "Q&A #29: Faith and Doubt" from http://www.reasonablefaith.org/faith-and-doubt

Pope v. Illinois — Serious Value According to Whom?

Obscenity is an exception to First Amendment free speech protection. This doesn't mean obscenity is automatically illegal; it means states can choose to restrict it. For example, the following is a misdemeanor in Nebraska:

"It shall be unlawful for a person knowingly to (a) print, copy, manufacture, prepare, produce, or reproduce obscene material for the purpose of sale or distribution, (b) publish, circulate, sell, rent, lend, transport in interstate commerce, distribute, or exhibit any obscene material, (c) have in his or her possession with intent to sell, rent, lend, transport, or distribute any obscene material, or (d) promote any obscene material or performance."
— Nebraska Revised Statute 28-813

Where "obscene" is defined as meaning:

"(a) that an average person applying contemporary community standards would find that the work, material, conduct, or live performance taken as a whole predominantly appeals to the prurient interest or a shameful or morbid interest in nudity, sex, or excretion,
(b) the work, material, conduct, or live performance depicts or describes in a patently offensive way sexual conduct specifically set out in sections 28-807 to 28-829, and
(c) the work, conduct, material, or live performance taken as a whole lacks serious literary, artistic, political, or scientific value;"
— Nebraska Revised Statute 28-807 (emphasis added)

This language is taken from the Supreme Court's Miller Test for obscenity. What's interesting about the Miller Test is that all three parts must hold to classify material as "obscene." A photograph could, for example, be judged by "contemporary community standards" to appeal to sexual interest as a whole, it could depict state-defined sexual conduct in a "patently offensive way," yet if it contains "serious literary, artistic, political, or scientific value" it would not be legally obscene.

Pope v. Illinois was a 1987 Supreme Court case which looked at the "serious value" test. Specifically:

"whether, in a prosecution for the sale of allegedly obscene materials, the jury may be instructed to apply community standards in deciding the value question."

Why is this important? Suppose there's a novel with sexual elements that most people would find offensive. In Oregon, it's legal because people in Oregon still see literary value in it. In Alabama, it's obscenity and you can go to jail for selling the book because people in Alabama don't see literary value in it. I'm picturing Burt Reynolds hauling banned books across state lines.

Case Background

Rockford, Illinois in 1983. Police arrest two part-time clerks in an adult book store for selling porn mags. The clerks are convicted for selling obscenity. (This makes me wonder what officials thought adult bookstores normally sold.)

In both trials, the jury was instructed to decide the question of value according to how "ordinary adults in the whole State of Illinois" would view these magazines. Both clerks were convicted. Both lost Appellate Court appeals. The Illinois Supreme Court passed, but the U.S. Supreme Court took up the issue.

In a majority decision, the Supreme Court decided:

"Just as the ideas a work represents need not obtain majority approval to merit protection, neither, insofar as the First Amendment is concerned, does the value of the work vary from community to community based on the degree of local acceptance it has won. The proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole." — Opinion of the Court (emphasis added)

The Supreme Court also decided to send the case back to the Appellate Court to determine whether convictions based on constitutionally faulty jury instructions would be upheld. (See the text of the case for a lively debate about "harmless error.") I had trouble finding out the ultimate fate of the clerks.

Communities and Reasonable Persons

When reading Pope, I kept wondering, "How is 'community' defined? The state, the city, or what?" So I went back and skimmed through Miller v. California. In that case, it's made clear that the "forum community" is meant, i.e. for a California state law the forum community would be the whole state of California. Presumably for a city ordinance, it would be that whole city.

If a state-wide community doesn't get to decide whether a work has "serious literary, artistic, political, or scientific value," who does decide? One answer might be: the entire community of the United States of America. This would make decisions more consistent across state lines, but we could have situations where the people of Oregon see value in a work that Americans as a whole might not esteem. And there may be works of great artistic value to a broadly scattered fanbase that aren't esteemed by any one geographic community as a whole.

Happily, the Court rejected "community standards" outright when it comes to determining value (see the bold text I quoted above). Unhappily, the replacement standard of what "a reasonable person" would find valuable isn't very helpful. Ask a jury to decide whether a reasonable person would find value in a "patently offensive" film and — I suspect — they would take themselves to epitomize reasonable people, note that they themselves don't see value in it, and answer accordingly.

What is Beauty?

In a concurring opinion, Justice Scalia questions the entire notion of legally judging artistic value:

"I must note, however, that in my view it is quite impossible to come to an objective assessment of (at least) literary or artistic value, there being many accomplished people who have found literature in Dada, and art in the replication of a soup can. Since ratiocination has little to do with esthetics, the fabled "reasonable man" is of little help in the inquiry, and would have to be replaced with, perhaps, the "man of tolerably good taste" - a description that betrays the lack of an ascertainable standard. If evenhanded and accurate decision making is not always impossible under such a regime, it is at least impossible in the cases that matter. I think we would be better advised to adopt as a legal maxim what has long been the wisdom of mankind: De gustibus non est disputandum. Just as there is no use arguing about taste, there is no use litigating about it. For the law courts to decide "What is Beauty" is a novelty even by today's standards."

I'm not used to wholeheartedly agreeing with Scalia! Another approach with similarly broad results comes from Justice Stevens' dissent. Referring again to the bold text I quoted above, Stevens writes:

"The problem with this formulation is that it assumes that all reasonable persons would resolve the value inquiry in the same way. In fact, there are many cases in which some reasonable people would find that specific sexually oriented materials have serious artistic, political, literary, or scientific value, while other reasonable people would conclude that they have no such value. The Court's formulation does not tell the jury how to decide such cases.

In my judgment, communicative material of this sort is entitled to the protection of the First Amendment if some reasonable persons could consider it as having serious literary artistic, political, or scientific value."

You can guess by now that both Scalia and Stevens are questioning the utility of having obscenity laws at all, at least as far as consenting adults are concerned. Stevens goes even farther and argues that such laws are unconstitutional because the difference (in this case) between legal pornography and illegal obscenity is not something the clerks could have been expected to know before being charged and convicted:

"Under ordinary circumstances, ignorance of the law is no excuse for committing a crime. But that principle presupposes a penal statute that adequately puts citizens on notice of what is illegal. The Constitution cannot tolerate schemes that criminalize categories of speech that the Court has conceded to be so vague and uncertain that they cannot 'be defined legislatively.' [...] If a legislature cannot define the crime, Richard Pope and Michael Morrison should not be expected to. Criminal prosecution under these circumstances 'may be as much of a trap for the innocent as the ancient laws of Caligula.'"

(You can't see it, but I'm applauding here.)

Finally, Stevens points out that mere possession of obscenity is legal and he characterizes laws against selling or distributing obscenity as an "insult" to a citizenry that has the "right to read and possess material which it may not legally obtain."

I agree and consider obscenity laws — "absent some connection to minors, or obtrusive display to unconsenting adults" — to be outdated relics of a less tolerant age.

Text of Pope v. Illinois, 481 U.S. 497 
Text of Miller v. California, 413 U.S. 15

Impurity and Total Value

I don't remember much about school before high school, but I do remember my seventh grade Reading class and the city-wide furor that came out of it. I think of that class in two parts. In the first, I was surprised that something as fun as reading fiction could be a class in school. My teacher, Ms. L., had a positive attitude and was great at helping individual students find books that interested them. I hope these kind of classes are still popular beyond the standard English Lit curriculum.

Then the crisis. Sticking to the public record, let's just say my mother objected to some of the material that was read out loud in my classroom, then in other Reading classrooms, then in the school library. What followed was a typical book challenge followed by a not-so-typical political movement culminating in her election to the school board. Some challenged books were moved to the high school library and some were reviewed and remained where they were. Emotions were high on both sides, to put it mildly. The whole ordeal changed more in terms of the people involved than the availability of the books in question. I'm intentionally being vague about other people, but I was pulled out of public school.

Fast forward two decades. I'm a card carrying member of the ACLU and about one-third of the way through a Master of Library and Information Science program. One of my personal goals is to reduce the kind of antagonism I witnessed back in junior high. I'm sure there are some irresolvable points of difference, but I'm also sure there is substantial room for improvement. In this post, I want to highlight one way challengers and defenders talk past each other.

Of Cake and Hair

A frequently used metaphor in the Harry Bosch noir detective series is "hair on the cake." This refers to the way one little legal problem with a criminal case can screw the whole thing up. No matter how great 99.99% of the cake may be, the hair ruins it.

Some people take the same approach to books, movies, music, etc. One rude word and the whole work is "trash" so far as they're concerned. One depiction of sex or violence and it's "unsuitable for minors." (Well, in America, it takes violence at the level of Cormic McCarthy rather than John Wayne. Meanwhile, mentioning female sexuality at all is sufficient.)

98% Fat Free!

A very different approach is to focus on the value of a work on the whole. A person who takes this approach might not approve of every element, but still believes the book/movie/album/etc. is worthwhile for its overall message, or its social importance, or a greater proportion of good bits. For example, one of my favorite books is John Stuart Mill's On Liberty, despite some rather disgusting cultural bigotry near the beginning.

The Disconnect

When two people who take these different approaches argue about whether X is a good book, or Y is a good movie, or Z is a good album, they're going to think the other person is totally daft in the very common case where the material has a little objectionable content.

The objector will point at this rude word or that sexual passage as if they're hairs on a cake; since it has these elements at all, the work in question is therefore bad. Meanwhile, the defender will ask, "Did you read the whole thing?" Since the answer is usually "no," the defender is baffled; how could the objector possibly have a valid opinion about the goodness or badness of the work as a whole? And so it goes.

For a relatively recent example, check out this letter to the editor. Scroggins, the objector, writes of the novel Speak:

"As the main character in the book is alone with a boy who is touching her female parts, she makes the statement that this is what high school is supposed to feel like. The boy then rapes her on the next page. Actually, the book and movie both contain two rape scenes."

Scroggins is complaining about the inclusion of any sexual elements in a book about dealing with rape. He doesn't seem to care about the book's impact on helping young people avoid dangerous situations and, especially, helping them deal with life after rape. It mentions sexuality in relation to *gasp* high schoolers, so it has to go. (The author's response is worth a read.)

A Tactic For Reconnecting

Now I do think it's appropriate to respond to objections by listing a work's virtues and weigh them against whatever content people find objectionable, but if it's clear that the objector is of the "hair on the cake" variety, this difference in philosophy needs to be directly addressed. No matter how many virtues a defender lists, the objector can still wave around the "bad bits" as if they settle the matter. By explicitly and repeatedly refocusing the question on whether — in general principle — the presence of bad bits makes a work bad, one of three things might happen:

• The objector refuses to acknowledge the question, which will cause the objector to lose credibility with onlookers who understand the question.
• The objector affirms that the presence of bad bits makes any work bad. The defender can then highlight respected works with bad bits to, again, cause the objector to lose credibility with many onlookers.
• The objector affirms that the presence of bad bits doesn't necessarily make a work bad. Now the objector is publicly committed to weighing the various elements of any given work. Differences in judgment may still occur, but at least a conversation about overall value has become possible.

I hope that greater awareness of these two approaches of "It's impure!" vs. "It has positive total value!" can help everyone in such disputes understand each other better and pin down any essential points of disagreement more quickly. Disagreements happen, but misdiagnosing the disagreement makes resolution unnecessarily difficult.

I'll leave you with a quote from the 1950's that could have been written this year:

"The major characteristic which makes for the all-important difference seems to me to be this: that the selector's approach is positive, while that of the censor is negative. This is more than a verbal quibble; it transforms the entire act and the steps included in it. For to the selector, the important thing is to find reasons to keep the book. Given such a guiding principle, the selector looks for values, for strengths, for virtues which will over shadow minor objections. For the censor, on the other hand, the important thing is to find reasons to reject the book; his guiding principle leads him to seek out the objectionable features, the weaknesses, the possibilities for misinterpretation. The positive selector asks what the reaction of a rational intelligent adult would be to the content of the work; the censor fears for the results on the weak, the warped, and the irrational. The selector says, if there is anything good in this book let us try to keep it; the censor says, if there is anything bad in this book, let us reject it. And since there is seldom a flawless work in any form, the censor's approach can destroy much that is worth saving." — Lester Asheim, Not Censorship But Selection

Public Forum Doctrine in U.S. v. American Library Association

United States v. American Library Association was a 2003 Supreme Court case that examined the constitutionality of CIPA, the Children's Internet Protection Act.

"[CIPA] is a federal law enacted by Congress to address concerns about access to offensive content over the Internet on school and library computers. CIPA imposes certain types of requirements on any school or library that receives funding for Internet access or internal connections from the E-rate program – a program that makes certain communications technology more affordable for eligible schools and libraries." — http://www.fcc.gov/guides/childrens-internet-protection-act

Basically: filter your Internet or miss out on federal funding.

The American Library Association led a lawsuit against CIPA on the grounds that filtering intended to block unprotected speech also inevitably blocks constitutionally protected speech, which violates the First Amendment rights of public library patrons. This legal argument had two critical points.

1. Internet access in public libraries constitutes a public forum. Therefore content regulations are subject to strict scrutiny.
2. CIPA fails under strict scrutiny because filtering is not narrowly tailored to the government's compelling interest in blocking unprotected speech ("obscenity, child pornography, or material harmful to minors"). 

Despite an earlier U.S. District Court ruling that CIPA was unconstitutional for these reasons, the Supreme Court ruled 6 to 3 in favor of CIPA. Unfortunately the breakdown of opinions was rather complicated:

Opinion of the Court (plurality) — Rehnquist, O'Connor, Scalia, and Thomas
Concurrence — Kennedy
Concurrence — Breyer
Dissent — Stevens
Dissent — Souter, Ginsberg

Since the Opinion of the Court represented a mere plurality rather than a majority, only its judgment — not its rationale on the whole — is authoritative. On the other hand, a plurality of four justices only needs one concurring justice to agree with part of its rationale for that part to count as a majority (authoritative) rationale. One such rationale for finding CIPA constitutional was simply this: Internet access in public libraries does not constitute a public forum.

"Internet access in public libraries is neither a 'traditional' nor a 'designated' public forum." — Opinion of the Court

"The public forum principles on which the District Court relied [...] are out of place in the context of this case. In determining whether the statute's conditions consequently violate the First Amendment, the plurality first finds the "public forum" doctrine inapplicable [...], and then holds that the statutory provisions are constitutional. I agree with both determinations." — Breyer's concurrence

Nothing more really needed to be said before reversing the District Court's ruling. Without classification as a public forum, Internet filtering isn't subject to strict scrutiny and so it doesn't need to be "narrowly tailored." For the sake of argument, however, the plurality went on to comment:

"Assuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled." — Opinion of the Court

This was important guidance for libraries or legislatures interested in avoiding any chance of "constitutional difficulties." Everyone could rest assured that strict scrutiny was off the table, but U.S. v. ALA did not settle the question of which lower standard of judicial review might apply. Breyer and the plurality did not agree on this point:

"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 making collection decisions and enjoy broad discretion in making them." — Opinion of the Court

"Instead, I would examine the constitutionality of the Act's restrictions here as the Court has examined speech-related restrictions in other contexts where circumstances call for heightened, but not 'strict,' scrutiny--where, for example, complex, competing constitutional interests are potentially at issue or speech-related harm is potentially justified by unusually strong governmental interests. Typically the key question in such instances is one of proper fit." — Breyer's concurrence

So it's unclear whether the selection decisions of library staff are subject to heightened scrutiny or merely rational review. This uncertainty is compounded by the uncertainty of what would happen in any particular instance of applying heightened scrutiny; it's a vague standard.

The Other Four Justices

How did Kennedy's concurrence play into all this? He ignored the question of public forum doctrine and jumped straight into the plurality's hypothetical situation wherein strict scrutiny is applied and CIPA passes anyway because adults can request to have the filter disabled.

Both dissents treated Internet access in public libraries as a public forum then went on to characterize filtering as overly broad — rather than narrowly tailored — for the purpose of shielding children from unprotected speech.

Conflicting Interpretations Today

In the current edition of the American Library Association's Intellectual Freedom Manual, Theresa Chmara writes:

"In sum, public libraries must remain cautious about using filtering. Ultimately, the CIPA scheme was upheld because it was tied to funding and the government conceded that an adult’s request for disabling of the filter could never be denied and did not have to be justified. The Supreme Court also left no doubt that in a case challenging the application of filtering software, a library would be liable if it did not disable a filter to provide access to constitutionally protected material." (OIF, p. 345)

Despite this, a library system in rural Washington State has chosen to filter all computers without the option to entirely disable filtering on request, even when constitutionally protected material stays blocked as a result. Just this week, a U.S. District Court ruled in favor of the library system's choice of filtering policy. The District Court cites U.S. v. ALA to say that strict scrutiny is inappropriate; it also cites a Ninth Circuit decision in support of rational review when government services are allowed to make content choices. Notice how the plurality's support of rational review in the Supreme Court case was not used, because — as shown above — concurring justices did not elevate the plurality rationale to a majority rationale on this point.

On a careful reading of U.S. v. ALA, the constitutionality of refusing to disable filters for adults was left an open question. The plurality opinion and both concurrences brought up the issue of filter disabling only to say that prompt disabling would satisfy any level of judicial review. It's an unwarranted leap of logic to infer that slow disabling (or refusal to disable) would fail to satisfy some level of review. It might, but none of the six justices concurring in judgment actually said so. Breyer made this clear when he wrote:

"Perhaps local library rules or practices could further restrict the ability of patrons to obtain 'overblocked' Internet material. [...] But we are not now considering any such local practices. We here consider only a facial challenge to the Act itself." — Breyer's concurrence

The case from Washington State is likely to be appealed. Must filters be disabled on request? Can public libraries deliberately block constitutionally protected speech? Neither side has reason to give up just yet.

References

Office for Intellectual Freedom (OIF). (2010). Intellectual Freedom Manual (8th ed.). Chicago, IL: American Library Association.

United States v. American Library Association, 539 U.S. 194 (2003).

Instrumental Free Speech

Do we value free speech as a good in itself, or do we value free speech because it is a means to some further good? The latter is what we might call an instrumental (or consequentialist) view of the importance of free speech. Stanley Fish writes:

"Any such view will require that you specify the 'good' whose protection or emergence will be promoted by a regime of free speech; but once such a good has been specified—be it the discovery of truth, or the realization of individual cognitive potential, or the facilitation of democratic process (the three most popular candidates put forward in the literature)—it becomes possible to argue that a particular form of speech, rather than contributing to the realization, will undermine and subvert it. This is so because in a consequentialist argument freedom of speech is not identical with the good but is in the service of the good; it is not a prime but a subordinate value, and when its claims conflict with those of its superior, it must give way. What this means is that insofar as you hold to a consequentialist view of free speech—insofar as you have an answer to the question 'What is free speech for?'—you are already committed to finding in a particular situation that speech with certain undesirable effects should not be tolerated; and what that means in turn is that there is no such thing as free speech[....]"¹

What about the first option of valuing free speech for its own sake? Fish acknowledges this as a logical possibility, but claims free speech defenders in practice always end up appealing to the instrumental view. If so, then there wasn't much reason for John Durham Peters to write a whole book criticizing modern liberals for valuing free speech for its own sake. 

Fish's point is that "free speech" is a lofty and pure-sounding concept, but implementations of free speech always exclude categories of speech. We see this in the way the First Amendment to the U.S. Constitution mentions no exceptions, yet legal practice involves a complicated mess of exceptions. Free speech is a label that political victors get to apply to the mix of free and non-free speech they prefer. Fish isn't offering his own "pure" theory of free speech. Rather, he wants readers to realize that every free speech brand is a mongrel.


1. Fish, S. (1994). There's no such thing as free speech: and it's a good thing too. New York, NY: Oxford University Press. p. 13

American Libraries and Young Patrons

[A paper for my Intellectual Freedom class.]

American Libraries and Young Patrons

According to the American Library Association's (the ALA's) Library Bill of Rights, "A person’s right to use a library should not be denied or abridged because of origin, age, background, or views [emphasis added]" (1996). This policy of age non-discrimination has several controversial consequences: minors may view any materials adults may access, parents must take full responsibility for restricting their own children, and librarians may not hesitate to select materials they personally consider inappropriate for minors or adults.

Full Access for Minors

"Constitutionally protected speech cannot be suppressed solely to protect children or young adults from ideas or images a legislative body believes to be unsuitable for them. Librarians and library governing bodies should not resort to age restrictions in an effort to avoid actual or anticipated objections, because only a court of law can determine whether material is not constitutionally protected." (ALA, 2008)

Before examining what counts and what doesn't count as "constitutionally protected speech," it's important to notice the uniqueness of the ALA's position: libraries may not restrict materials for minors unless that material is constitutionally unprotected. Movie theaters routinely deny unaccompanied minors admission to R-rated films even though these films are constitutionally protected speech. Same goes for selling M-rated video games to minors. These industries voluntarily restrict direct access by minors to keep the public from demanding that all films and video games be "content appropriate" for minors (Scales, 2009). The American library industry — so to speak — has deliberately decided not to apply such a policy.

What counts as constitutionally protected speech? That's a complicated issue. The First Amendment itself does not mention exceptions, but there is a long history of Supreme Court cases deciding what counts as speech (more than verbal expression!) and what counts as protected speech: most things except obscenity, libel, fighting words, and incitement to immediate crime (Chaplinsky v. New Hampshire, 1942). Unprotected speech isn't necessarily illegal speech; it's just that the Constitution isn't interpreted as stopping legislatures from passing laws against unprotected speech, so legislatures usually do.

There is one more major complication: the same materials can be classified as protected, non-obscene speech for adults but unprotected, obscene speech for minors. In a late 60's Supreme Court case, it was decided that pornographic magazines could be denied by law to minors while allowed by law to adults (Ginsberg v. New York, 1968). However, as seen in the long quote above, the ALA insists on waiting for a court of law to classify materials as "obscene" — for everyone — before libraries may deny access to minors.

Criticism of Full Access for Minors

Do libraries have a legal obligation to offer minors access to all materials which are constitutionally protected for adults? Despite the ALA's age-agnostic presentation of the issue, the answer appears to be: no, libraries are not legally obligated to provide full access to minors:

"The interest in protecting young library users from material inappropriate for minors is legitimate, and even compelling, as all Members of the Court appear to agree. Given this interest, and the failure to show that adult library users' access to the material is burdened in any significant degree, the statute is not unconstitutional on its face." (United States v. American Library Association, 2003)

This does leave open the question of whether libraries may restrict materials more narrowly than local legislative limits, but the simplistic principle of equal access does not stand up to scrutiny.

All Responsibility on Parents

"Librarians and library governing bodies cannot assume the role of parents or the functions of parental authority in the private relationship between parent and child.  Librarians and governing bodies should maintain that only parents and guardians have the right and the responsibility to determine their children's—and only their children’s—access to library resources." (ALA, 2008)

To use a film example again, it's common for video rental stores to deny R-rated rentals to minors by default, unless a parent adds an authorization to the family account to permit a particular child to rent R movies on his or her own. Librarians following the ALA's code will allow minors to check out any materials from the library by default. Can parents ask the library to not allow their own children to check out R-rated movies? The ALA says "no." Or put more positively, "Visit the library with your children. If that’s not possible, ask to see the materials your children bring home. Set aside a special shelf for library materials. If there are materials on it you don’t approve of, talk with your children about why you would rather they not read or view them" (ALA, 1999).

Criticism of All Responsibility on Parents

Some parents consider the ALA's stance too "retroactive" to give parents informed control over their own children's library access. Relying on children to hand over all materials to their parents for approval is, well, unrealistic. Parents Against Bad Books in Schools (PABBIS) proposes a system of "Upfront-Informed Parental Consent" for assigned readings as well as school library collections. In this system, parents would be given a write-up describing the content and justification for using each book, along with possible alternatives. Parents would need to sign off on the book or pick an alternative for their own children (PABBIS, n.d.).

While this may work for assigned classroom readings, it's unclear how such a system would work for a library as a whole. Perhaps parents could give blanket pre-approval for their children to read materials with certain ratings, but require specific consent on anything beyond those ratings. It would be interesting to know the degree to which librarian opposition to such a scheme is a matter of convenience versus a matter of principle.

Unrestricted Selection

"Libraries should not limit the selection and development of library resources simply because minors will have access to them. Institutional self-censorship diminishes the credibility of the library in the community, and restricts access for all library users." (ALA, 2008)

Given the policy of full access to library resources for minors, it might be tempting to limit minors by limiting the entire library. It would be like allowing minors to rent any movie at a video store without parental permission, while simply not carrying anything rated higher than PG-13. Some parents would no doubt appreciate the existence of such a video store, but our society would be poorer if every video store were of this kind.

Internet access really brings the question of restrictions to the forefront. While it's possible to subtly limit local resources out of a consideration for minors, the full diversity of the Internet comes as a single package unless librarians take the additional step of applying a filter. The ALA opposes such filtering:

"So, just as librarians do not monitor the books or periodicals people bring into or check out of the library, allowing people to decide for themselves what they wish to read and study, the Internet empowers users to choose for themselves the information they wish to view. Librarians can—and do—help guide searches, but they do not advocate limiting access to legal speech, because blocking access to constitutionally protected speech is unconstitutional." (ALA, 2003)

The ALA's position has been that public libraries, as public organizations, are bound by the First Amendment in ways that private organizations — like video stores — are not.

Criticism of Unrestricted Selection

Once again there is an absolutist legal question to clear up before discussing matters of degree. Can libraries self-impose content restrictions on constitutionally protected materials for adults? A judgment by Washington state's Supreme Court touched on this in the context of Internet filtering for adults:

"The principle that a library has no obligation to provide universal coverage of all constitutionally protected speech applies to Internet access just as it does to the printed word in books, periodicals, and other material physically collected and made available to patrons." (Bradburn et al v. North Central Regional Library District, 2010)

It remains to be seen whether a higher court will affirm or overturn this decision. A strong answer either way would be helpful because the ALA insists that restrictions on protected speech are unconstitutional, while the ALA's critics want local communities to have a say in where to draw the line for public libraries.

Conclusion

Extremes are easy. Conservative patrons worry about a policy of "anything goes." The ALA worries about a policy of "anything someone doesn't like goes away." It can seem like the only way to avoid one extreme is to embrace the other. This makes the status quo unstable and contentious. Sacrificing the principle of absolute age equality may be a necessary step toward keeping libraries free for adults and as open for children as their parents want them to be.

References

American Library Association. (1996). Library bill of rights. Retrieved from http://www.ala.org/advocacy/intfreedom/librarybill

American Library Association. (1999). Strategies and tips for dealing with challenges to library materials. Retrieved from http://www.ala.org/advocacy/banned/challengeslibrarymaterials/copingwithchallenges/strategiestips

American Library Association. (2003). Libraries and the Internet toolkit. Retrieved from http://www.ala.org/advocacy/intfreedom/iftoolkits/litoolkit/sampleanswers

American Library Association. (2008). Free access to libraries for minors. Retrieved from http://www.ala.org/advocacy/intfreedom/librarybill/interpretations/freeaccesslibraries

Bradburn et al v. North Central Regional Library District, No. 82200-0 D. Washington. (2010). Retrieved from http://caselaw.findlaw.com/wa-supreme-court/1523482.html

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

Ginsberg v. New York, 390 U.S. 629 (1968).

Parents Against Bad Books in Schools. (n.d.) Upfront-informed parental consent. Retrieved from: http://www.pabbis.com/upfront.html

Scales, P.R. (2009). Protecting intellectual freedom in your school library: Scenarios from the front lines. Chicago, IL: ALA Publishing.

United States v. American Library Association, 539 U.S. 194 (2003).

Traditional Remedies For Contemporary Liberalism

[This is a paper for my intellectual freedom class.]

Traditional Remedies For Contemporary Liberalism

"Many liberals today have a profound respect for autonomy and liberty and a shallow understanding of human nature, social order, and mass media. The intellectual tradition, however, fortunately provides strong medicine against such recent flattening of vision" (Peters, 2005, k. 149).

In his book, Courting the Abyss: Free Speech and the Liberal Tradition, John Durham Peters diagnoses contemporary liberalism as having lost something of its soul. Historically, the values of free speech and expression did not bring themselves into existence, rather they were born of prior values to serve and be justified by those other values. When we forget the roots of modern liberalism, we allow the child to trample its parents. Peters wants to remind us of those roots so we can return to a richer understanding of the liberal tradition.

This paper will examine three writers Peters invokes to make his point.

St. Paul

"To those not having the law I became like one not having the law (though I am not free from God’s law but am under Christ’s law), so as to win those not having the law. To the weak I became weak, to win the weak. I have become all things to all people so that by all possible means I might save some. I do all this for the sake of the gospel, that I may share in its blessings." 1 Cor 9:21-23

Paul had a definite, deep goal in his heart which drove his philosophy of accepting disagreement about the small stuff. Tolerating, and even participating in pluralism, was a means to an end. Not an end in itself. According to Peters (2005), "Paul gives us almost everything that recent civil libertarians do-respect for autonomy and appreciation for liberty-without the nihilism or moral thinness" (k. 514). I take this to mean that 'freedom!', taken in isolation, is a thin creed. Simplistic political libertarianism comes to mind, with its motto of 'freedom at any cost!' Freedom for a purpose and freedom sometimes constrained for that purpose is richer.

Situational constraint is clearly demonstrated in the case of meat at Corinth. There is nothing intrinsically wrong with eating meat sacrificed to false gods, but it can become wrong when it causes distress to others. "The other's conscience pollutes my meat. For Paul the limit of my liberty is the other's conscience-harder doctrine than the liberal notion that the private conscience is impregnable to regulation from without" (Peters, 2005, k. 539). Paul isn't setting aside meat for the sake of just any offense; he's concerned for the souls of new Christians from a background that associates this kind of meat with the worship of other gods. Freedom and limitation spring from the same source.

Yet for all of its lessons, Paul's approach to freedom is one of self-limitation. It's hard to see how it could be applied straightforwardly as legal policy. "He seems to authorize a contradictory range of policies from anything-goes absolutism to protectionist decency aimed to shelter the weak" (Peters, 2005, k. 578). Doing all things "for the sake of the gospel" is not an appropriate guideline to decide when to limit others in a secular society. Perhaps we should be looking for a more universally shared purpose to underlie and sometimes limit our legal notion of liberty.

Milton

"They are not skillful considerers of human things, who imagine to remove sin by removing the matter of sin" (Milton, 2010).

In Areopagitica, his famous essay in opposition to state licensing of books, John Milton appeals to two key Biblical passages. First, he counters the attitude that people are better off without "provoking objects," i.e. things which tempt us to do evil:

"God therefore left [Adam] free, set before him a provoking object, ever almost in his eyes; herein consisted his merit, herein the right of his reward, the praise of his abstinence. Wherefore did he create passions within us, pleasures round about us, but that these rightly tempered are the very ingredients of virtue?" (Milton, 2010)

The idea here is that virtue requires more than mere lack of vice; it requires an understanding of vice, then a willful and informed choice of virtue instead. "Freedom's fruit is perversity and rebellion-and also, Milton hopes, love and obedience" (Peters, 2005, k. 1083). So while Paul's underlying justification for freedom was the advancement of the gospel, Milton's justification is the space freedom creates for human virtue.

Still, couldn't the state license only the books it deems most likely to advance virtue? No, Milton argues, as in the Parable of the Wheat and Tares (Matthew 13:24-30), "Good and evil we know in the field of this world grow up together almost inseparably; and the knowledge of good is so involved and interwoven with the knowledge of evil [...]" (Milton, 2010). Any attempt to remove only the bad will unavoidably destroy much good. And, besides, even truly wicked books can be read and responded to in a way that serves virtue. "For Milton nothing is off limits to the imagination since it is not exposure to evil but the choice to act on it that corrupts" (Peters, 2005, k. 1148).

Milton's justification is more readily adapted to other religious views than Paul's justification, since every culture has a concern for moral development in one way or another. The difficulty in applying Milton to free speech and expression issues is that we're interested in a wider scope than the freedom of adults to write and read what their consciences will bear. What about children? What about unavoidable public offensiveness? I don't fault Milton for his narrow focus, but we will have to look elsewhere for answers to these questions.

Mill

"We can never be sure that the opinion we are endeavouring to stifle is a false opinion; and if we were sure, stifling it would be an evil still" (Mill, 2012).

John Stuart Mill was less concerned with good and evil as he was with truth and falsity. Pressure to conform to popular opinion was both the enemy to discovering new truth and a disservice to known truth. "[H]owever true it may be, if it is not fully, frequently, and fearlessly discussed, it will be held as a dead dogma, not a living truth" (Mill, 2012). Free speech is justified by its enlightening and invigorating effects on the mind:

"A belief, once discussed, can no longer remain a 'mere' belief; it is raised from prejudice to reason and alters its place in the human soul. Discussion, like the philosopher's stone, changes our opinions from base into nobler stuff" (Peters, 2005, k. 1846).

Nor is this a one-time event. The door to opposing arguments must always be kept open because there is no assurance truth will be convincing on its first hearing. Peters (2005) compares Mill's faith in truth to a "batting average" (k. 1809); truth has a real but fragile edge over error. If the conditions are kept fair, truth will win in the long run, but it may be a very long run and conditions are not usually fair.

Peters expresses doubts about the stability of Mill's vision. If everyone were to constantly question their deepest beliefs, who would be left to play the zealot? A few with "single-minded conviction of their own rightness" are needed to play both "the engine and the enemy of the public sphere" (Peters, 2005, k. 1862). If everyone were a John Stuart Mill, no one would bring the heat needed to catalyze the process. 

It is this style of "self-suspension" Peters spend so much of his book condemning. He believes modern liberalism has taken Mill's exercise of self-critical examination as an end in itself, without Mill's justification of finding and reinforcing truth, Milton's justification of making room for virtue, or Paul's justification of winning souls.

"To say, simply, that liberalism is about openness and freedom is to risk succumbing to the vacuum of emptiness or formalism. The best theorists of liberalism always manage to identify some other principle at its heart" (Peters, 2005, k. 1901).

I think this is the right way to approach issues of free speech and censorship. What are the other principles at stake which might either limit or justify freedom? By making these principles explicit, we can reason about how they apply in different circumstances. This may lead us to revise specific policies, revise the relative weighting of our principles, or both. Peters doesn't give many answers in his book, but he does help us learn to ask better questions.

References

Mill, J.S. (2012, Feb 6). On liberty. Wikisource. (Original work published 1869). Retrieved from http://en.wikisource.org/wiki/On_Liberty/Chapter_2

Milton, J. (2010, Apr 17). Aeropagitica. Wikisource. (Original work published 1644). Retrieved from http://en.wikisource.org/wiki/Areopagitica

Peters, J.D. (2005). Courting the abyss: Free speech and the liberal tradition (Kindle edition). Chicago, Illinois: University Of Chicago Press.