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A federal court has again proved what happens when the people lose the power to run the country and define the culture. Not only do we lose our freedom to govern ourselves, but the health and safety of our children is at risk.

On May 31, a three-judge federal court struck down the Children’s Internet Protection Act. To reach that result, the court treated a funding restriction like a content restriction, re-wrote the statute, applied the wrong legal standard, and invented a new constitutional right. That’s a lot of work product, even for federal judges. Their exercise in judicial lawmaking destroyed yet another tool for protecting children from the harms of pornography.

The court acknowledged that “the record before us demonstrates that public library patrons of all ages, many from ages 11 to 15, have regularly sought to access [pornography] in public library settings. There are more than 100,000 pornographic Web sites that can be accessed for free without providing any registration information, and tens of thousands of Web sites contain child pornography.” Some 95 percent of public libraries provide Internet access to the public, yet only seven percent use blocking technology to limit access to any category of content.

Like virtually every activity in America, the federal government subsidizes Internet access in public libraries. Congress enacted the CIPA to require that libraries accepting the subsidy use filtering technology to block three specific categories of material: obscenity, child pornography and material defined as harmful to minors. Access to the first two categories must be blocked for all viewers, the third for minors. The Supreme Court has ruled that each of these categories is without any constitutional protection.

This statute has at least two important goals. First, taxpayers should not be required to subsidize material so depraved that the First Amendment does not protect it. Folks who really want to feed their souls with such stuff should have to get it some other way. Second, children use public libraries all the time and should be protected from exposure – intentional or otherwise – to such harmful material.

The court’s first mistake was treating this funding statute as a content regulation. The CIPA does not directly regulate speech (if child porn can really be called speech) but is one of many strings Congress attaches to its funding. Any library wanting to provide access to obscenity and child pornography need only get off the federal dole. And the Supreme Court has in the past upheld funding restrictions, even those affecting real verbal speech.

Second, the court re-wrote the statute. The CIPA applies only to material with no constitutional protection. It may unintentionally affect protected material, but the statute itself applies to unprotected material. The court got it exactly backwards. Quoting an earlier Supreme Court decision, the court said: “The argument … that protected speech may be banned as a means to ban unprotected speech … turns the First Amendment upside down.” Well, the court describing the CIPA this way turns the statute upside down, converting an unintended consequence into an intended objective.

Third, because the court treated the CIPA as a regulation of protected material, it applied the wrong legal standard. In the law, labels often dictate results. When a statute applies to protected material, courts apply a strict standard that is nearly impossible to meet. When a statute applies to unprotected material, courts apply a lenient standard that is easy to meet. Every precedent the court cited involved protected material. The wrong label produced the wrong result.

Finally, the court created a new constitutional right. Congress knew that blocking technology is not completely effective. Under-exclusion, while not a constitutional problem, does not address the problem. Over-exclusion, while addressing the problem, can raise constitutional questions. The CIPA provides that library patrons can simply request that wrongly blocked material be unblocked. If someone really, really wants his porn in a public library, he just has to ask.

The court said that this step violates the Constitution. Many patrons, the court said, won’t ask “because they are embarrassed, or desire to protect their privacy or remain anonymous.” Want to protect their privacy? They are in a public library! The best way to keep one’s porn habits private would probably be to keep those habits in private. Last time I checked, the Constitution says nothing about a right not to be embarrassed. These “patrons” go to a public library and use a computer subsidized with public money. If they want taxpayer-subsidized porn, the least they can do is ask.

This is judicial activism, folks. These judges knew where they wanted to go and they would not let little obstacles like a statute and the Constitution get in their way. That’s what happens when judges rather than people run the country and define the culture.

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