New York City Libraries: A Haven for Porn Users

Is porn protected by the First Amendment? Technically no. But the New York City libraries disagree.

“In deference to the First Amendment protecting freedom of speech,” said a library spokeswoman, “the New York Public Library cannot prevent adult patrons from accessing adult content that is legal.”

Okay. But the question nobody’s asking is: What adult content is actually legal?

Federally funded libraries must adhere to the Children’s Internet Protection Act. This law requires all public computer terminals in libraries that access the Internet to have filtering. Adults can request the filter be turned off “to enable access for bona fide research or other lawful purposes.”

Fair enough. But again, the critical question for libraries is this: When is looking at pornography in a public setting considered lawful?

No Easy Answers

The question cannot be solved merely by appealing to the First Amendment as if all forms of speech and press are protected rights. In 1957, Justice William Brennan of the Supreme Court said “[T]his Court has always assumed that obscenity is not protected by the freedoms of speech and press.” This is the very reason why sexual obscenity laws are constitutional and currently on the books.

Nor can the question be solved by saying libraries should not censor anything because it is their mission to be a forum for education. The fact is libraries censor all the time whenever their directors and boards sit down to decide how they spend their money: Should we subscribe to National Geographic or to Playboy this year? Choices like this are made all the time.

Who Defines Obscenity?

But who’s to say what is really “obscene”? One man’s obscenity is another man’s fetish, right?

Not exactly. Currently, the way the Supreme Court has interpreted the law, sexual obscenity is defined as “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.” The court added further that this test for true obscenity was intended to “isolate ‘hard core’ pornography from expression protected by the First Amendment” (Miller vs. California). Furthermore, the court has also made it clear who should make these judgments: “the average person, applying contemporary community standards” (Roth v. United States).

Making it practical, this means when a library is trying to decide what content to allow on their computer terminals, there are some basic questions they can ask:

• According to our community standards, is this material considered “hardcore” pornography?

• According to our community standards, does this material appeal to a prurient (unwholesome) interest in sex?

• According to our community standards, does this material portray sex in a patently offensive way?

• According to our community standards, does this material lack serious literary, artistic, or scientific value?

A good library Internet policy can answer these concerns. Coupled with good technology, libraries can make these policies into a practical reality, allowing public libraries to be places where real learning can happen and not safe havens for those interested in viewing material offensive to the community at large.

This also prevents other legal concerns. For instance, when female librarians or minors who are employed by the library continually need to interact with male porn users, this can amount to a sexually hostile work environment. This isn’t a phantom fear, either. The Minneapolis Public Library awarded librarians half a million dollars in damages and attorney’s fees for this very reason.

The plaintiffs in the Minneapolis case made their position very clear: “The American Library Association’s concern has been entirely with the rights of the person viewing obscene images, to the exclusion of the rest of the public.” The same is the case at the New York libraries: they are more concerned about stepping on the so-called rights of those who want to use the library to view porn than they are the rights of all those around them who do not.