PHILADELPHIA -- Raunchy depictions of explicit sex punctuated a trial over library filtering on Monday when government attorneys argued the images were unsuitable for display on public terminals.
As part of its attempt to defend a library-filtering law from a legal challenge, the U.S. Justice Department unveiled a thick black binder stuffed with color printouts from sex sites.
Government attorney Tim Zick asked a librarian testifying in opposition to the law, 59-year-old Candace Morgan, to page through the images and say whether visitors to her public library would be permitted to view them.
"Is it your testimony that I have the right to look at these websites?" Zick asked.
"Yes, it is," replied Morgan, the steely-eyed associate director of the Fort Vancouver, Washington, regional library. Morgan is a witness for the ACLU, which is suing to overturn a federal law saying that libraries receiving cash from the government must install filters on all their computers.
The ACLU and the American Library Association have claimed that so-called smut-blocking software is problematic for two reasons: It doesn't do a good job of preventing access to porn, while it blocks many legitimate websites.
In March 2001, the groups sued to overturn a law called the Children's Internet Protection Act (CIPA), which denies federal "e-rate" and other funds to libraries that refuse to install smut-blocking technology.
By calling librarians as witnesses during the first day of the suit, the ACLU hopes to establish that there are alternatives to imposing mandatory filtering on all library patrons, as the law requires.
Morgan testified that her library, which received about $150,000 over three years from the feds, lets parents select filtered, unfiltered, or no Internet access for their children. Establishing an account is necessary before patrons can sign on to the computers in the Fort Vancouver branches.
Fort Vancouver has included books such as Madonna's Sex on its library shelves -- "it's no longer in the collection since it wore out," Morgan admitted -- in addition to Playboy, The Joy of Sex and The Joy of Gay Sex.
Edward Becker, the chief judge of the Third Circuit Court of Appeals and a member of the three-judge panel, asked Morgan if she would purchase or request "what we would all agree is hardcore pornography."
The librarian replied that she wouldn't base her decision on "content but on the item as a whole and the place it would play in the collection." Even Hustler, Morgan said, would be available by requesting a range of pages from a specific issue through inter-library loan.
When the Justice Department's Zick showed her the black smut-binder and asked if those items would be included in the library's collection, Morgan replied that some of the images were "similar" to items already owned by Fort Vancouver.
Zick wondered: "What are they similar to?"
Replied Morgan, with no sign of a blush: "Different ways of having sex. The hot teen pussy one. We have books on lesbian sex that might be similar... We do have books that show sex acts similar to that."
Other witnesses who testified on Monday include Ginnie Cooper, the director of the Multnomah County Public Library in Portland, Oregon, and Sally Reed, the past director of the Norfolk Public Library in Norfolk, Virginia.
Reed said that Norfolk, which has an endemic poverty problem, could not afford to give up federal funds. "We have most of our computers because we are so poor (we qualify for grants)," Reed said. "We would then be in a position to decide whether we want to impose economic censorship on our patrons or censorship through filtering software."
U.S. courts traditionally have treated with great skepticism any law aimed at restricting what Americans can or can't say. The ACLU successfully fought Congress' previous attempts -- the Communications Decency Act and the Child Online Protection Act -- by arguing that any law making it a crime to talk dirty online clearly violates the First Amendment.
But the free-speechers and librarians have a tougher battle this time: CIPA is not a criminal law, and nobody's forcing libraries to ask the federal government for cash. The Supreme Court has repeatedly said that the government can't prohibit speech just because someone might find it offensive, but has taken a far more relaxed view of speech that's tied to funding.
In the 1998 case of NEA v. Finley, the justices ruled 8-1 that a law requiring the National Endowment for the Arts to follow "general standards of decency and respect" when handing out grants was constitutional.
"In the context of selective subsidies, it is not always feasible for Congress to legislate with clarity. Indeed, if this statute is unconstitutionally vague, then so too are all government programs awarding scholarships and grants on the basis of subjective criteria such as 'excellence,'" the majority's opinion said.
Also on Monday, the judges abruptly kicked members of the public out of the courtroom. Filterware vendor N2H2 had filed an emergency request to intervene in the trial, arguing that testimony could divulge proprietary data about how the company trawls for sites to add to its list of off-color, gambling, prurient, and other verboten websites.
The trial, scheduled to last two weeks, resumes Tuesday morning.
