The Right Rides Again
With a topless club case stalled in court, anti-pornography activists take on the library -- and win.
By Jim Hanas
OCTOBER 11, 1999: As rallies go, it was staid. Demonstrators -- 150 or so men, women, and children -- fanned out along the intersection of Peabody and McLean holding red, white, and blue balloons and signs reading "No Tax $ Money For Pornography," "Filter Computer Filth," and "Keep Libraries Safe For Children."
Two stories up, a meeting of the Memphis/Shelby County Public Library and Information Center Board of Trustees was called to order. After two months of study, and under threat of losing a quarter of the system's funding, library staffers presented a plan to install Internet filters on the library system's network "to reduce the possibility that customers may encounter objectionable content in the form of depictions of full nudity and sexual acts."
With an array of speakers audibly holding forth on the evils of pornography below, the board voted unanimously to adopt the proposal. Their decision put the Memphis library system alongside just three of twenty-three urban library systems of comparable size that have adopted Internet filtering on all of its computers and alongside two other libraries in the state of Tennessee that could face court challenges to their Internet policies.
"We're concerned about what we see coming out of Memphis," says Hedy Weinberg, executive director of the ACLU of Tennessee, who says her organization is currently monitoring similar policies in Cleveland and Oak Ridge. "We will be looking at the policy and its implementation, and urge the county not to be implementing policies that the courts have clearly found to be unconstitutional."
The vote was a victory for the Citizens for Community Values of Memphis (CCV), the group that lobbied the Shelby County Commission to tie its continued funding of the library to filtering and which organized the rally to show its support for such a proposal.
And, of course, to send a message to the library board members convening inside.
"But nicely," says Randy Baker of Thompson & Baker, the Memphis public relations firm that provides its services to CCV free of charge. "Haven't you ever heard of killing them with kindness? That's what this is."
While the board's vote was an all but total victory for the group, which claims 3,000 members in the Memphis area, it was also one the CCV badly needed. The prosecution of eight area topless clubs by anti-porn crusader Larry Parrish -- funded with donations solicited by the group -- sputtered in the courts for almost three years before grinding to a halt this March, when a state appellate court agreed to reinstate charges against the clubs but disqualified Parrish from the prosecution, ruling that his freelance arrangement violated both the Tennessee and the U.S. constitutions. Both sides have appealed portions of the ruling.
Although the CCV's mission remains the same, the organization is different today from when it took aim at topless clubs three years ago. Now with a full-time executive director, it is better organized. With pledges of support over the next four years totalling $1.4 million -- almost three times the amount marshalled to finance Parrish -- it is better funded. And with sympathetic ears seated in local government, it is more effective.
Effective enough, as the group's latest victory proves, to unilaterally determine public policy.
"I think it's a victory for the people of Memphis, I truly do," said CCV executive director George Kuykendall upon applauding the library for taking a first step.
In other words: This is for you.
Local news coverage of the filtering controversy has portrayed the pro-filtering movement as a ground-swell, a spontaneous outcry from local citizens about how their tax dollars are being spent. And while the outcry may be genuine, the movement has been far from spontaneous, or even local. Instead, it has been a concerted campaign led by the CCV and other groups, including the Cincinnati-based National Coalition for the Protection of Children and Families and the local family-values group FLARE (Family, Life, America, Responsible Education).
George Kuykendall, the CCV's first full-time executive director, hadn't been at his new post a month when he appeared before the Shelby County Commission's already-behind-schedule budget hearings in June, urging commissioners to use their funding leverage to address the library's Internet policy.
A career naval officer and former marketing director for ITT Technical Institute, Kuykendall says he became active against pornography in Collierville, which successfully fought the opening of a topless club there via zoning ordinances late last year, thanks to consulting provided by the National Law Center, a partner of the National Coalition in Cincinnati.
The CCV's latest battle stems from an incident at the Germantown branch library in which a woman complained that another patron was viewing pornography within view of her children. While library officials say that was an isolated incident covered by existing appropriate-use policies -- the patron was banned from the branch -- Kuykendall says he believes that many more incidents go unreported.
"Up until this point, we have found that dealing individually with people who don't understand how to behave has worked well for us," director of libraries Judith Drescher told the commission in a July meeting, elaborating on the appropriate use and behavior policies that have been used to govern Internet use in public libraries for the last three years.
But Kuykendall and others urged the use of filters, offering first-hand testimony of patrons accessing pornographic images and reports on the history files on library terminals that revealed visits to sex sites.
The notion won fast friends on the commission, including Tommy Hart, who invited Kuykendall to speak, and Marilyn Loeffel, past president of FLARE and the chair of the commission's education and libraries committee. By late June, the commission had agreed to withhold $4 million worth of funding from the library until it had reviewed its Internet use policy. And by a July 7th meeting, both Hart and Loeffel had drafted separate proposals tying the commission's $4 million of library funding to Internet filtering. While Hart's proposal called for filtering to be placed only on computers used by minors, Loeffel's advocated them on all library terminals. Neither measure was taken to a vote, but instead both were presented to library officials as guidelines for study. As a result, the library board instructed director of libraries Drescher to review the library's current policy and deliver a proposal in late September.
"Putting a filter on the system is not unconstitutional," Kuykendall told the commission at the early July meeting. "It's not interfering with First Amendment rights. It's not censorship."
There are some who disagree, including the American Civil Liberties Union, the American Library Association, and a federal judge.
"Clearly there are some First Amendment problems with their use of filters on the computers in the public libraries," says the ACLU of Tennessee's Weinberg. "What we'll be doing now is collecting some information about the type of software that they use and what their procedures are and share with them our position. The courts have been very clear that public libraries cannot place software filters on their computer systems and mandate use of only those computers."
Early last year, the threat of an ACLU lawsuit led one California public library to immediately remove all filtering from its computers, and in a landmark case last November, a federal judge in Virginia found that the Internet filtering policy of the Loudoun County Library system in suburban Washington, D.C., constituted prior restraint and was therefore unconstitutional. The ruling also concluded that filtering was not the least restrictive means available to achieve the end of protecting minors. Less restrictive means advocated by the ACLU include placing privacy screens around terminals, establishing Internet use policies, and allowing optional filtering on terminals used by children.
"Clearly every member of the library board who considered and voted to support Internet blocking should read the decision out of Virginia," says Weinberg, "Because it will remind them of why we have libraries. The Internet provides a wealth of information. The important thing is that filters don't discern between legal and illegal material."
While Kuykendall stresses that the CCV's aim is not to enact new laws but to enforce laws that are already on the books, filtering critics argue that blocking decontextualized images blocks both content that is obscene, and therefore not protected, and content that is not obscene and therefore legal and protected by the First Amendment.
"You can think of all sorts of reasons there might be frontal nudity on a screen," says Weinberg. "If they're talking about sex education, if they're talking about body development."
And the issue gets even thornier because obscenity is legally defined, in part, as a function of community standards, something automated filtering programs cannot grasp and something that raises the age-old free speech question: Who gets to decide?
"Community standards certainly play an important role," says Weinberg, "but I'm not sure that you can say this particular group represents community standards, that they're the group that gets to choose what the community standard is."
Ironically, the group that has taken the lead in defining community standards for the Memphis/Shelby County Public Library receives much of its tactical and financial support from outside the community. CCV's new organizational efforts have been aided greatly by assistance from the National Coalition for the Protection of Children and Families, a Cincinnati-based anti-pornography organization that declared Memphis along with San Diego, South Bend, Indiana, and Atlanta one of its "model cities" in the early days of Parrish's battle against the topless clubs.
In fact, the National Coalition was the single largest donor to Parrish's war chest, contributing $300,282. In addition, the group has given the local CCV $90,000 in start-up funds -- roughly half of the group's net assets at the end of 1998 -- and pledges of support for the next four years in amounts yet to be determined. "They are active as a coalition now, as before they were preparing to become a coalition," says Darcy Taylor, vice president for operations in model cities for the National Coalition. "They have the funding. They have the program. They have the strategy, and they're actually moving forward in all those areas." Taylor himself attended the CCV's pro-filtering rally at the main library, and another representative from the National Coalition, executive vice president Rick Schatz, sits on the group's board of directors.
"We bring seed money," says Taylor. "And then we bring the expertise of being able to lend our knowledge, our staff, free of charge, to help a local CCV move their strategy forward."
The CCV's strategy quickly moved forward in the Shelby County Commission. After Hart's and Loeffel's resolutions were drafted, Drescher appeared before the commission several times to report on the library's progress on the matter.
The Shelby County Commission is not the natural forum for airing grievances about the library system. The system's immediate governing body is the Board of Trustees, a group of seven citizens -- five from within the city limits, two from the county -- who are ultimately appointed by the Memphis City Council. The commission's $4 million share of the system's $16 million operating budget, furthermore, is less than half of the $10 million appropriated by the council.
But as political expediency goes, pro-filtering advocates could hardly have picked a more sympathetic forum.
As a past president of FLARE of Memphis and current public relations committee chair of the "anti-pornography, pro-family, pro-life" organization, Commissioner Loeffel shares not only many of the CCV's views, but many of its donors. Several of the CCV's 19 board members contributed to Loeffel's successful election campaign last year, and it was her proposal, not Hart's, that garnered the widest support from the CCV and others.
Not only was Hart's proposal brushed to the side, but he was repeatedly asked to withdraw it by those who, like Loeffel, argue that the library should not be in the "pornography business" at all.
"I was somewhat taken aback when I received the first call about withdrawing my resolution," says Hart. "I did get three or four calls of that nature."
One such call came in a commission meeting, from Lee Ann McNinch, who, as the current president of FLARE, sits on the board of that organization with Loeffel.
"If Commissioner Hart would please hear my message," McNinch told a meeting of the commission's education and libraries committee in late July, "that I would like for him to maybe withdraw his resolution, since it addresses just strictly the filtering on computers for children."
In many ways, the forum created by the Internet issue looked more like a meeting of the organized suburban right than of concerned citizens representing a cross-section of the community. Of five people who addressed the issue before the committee on July 26th, for example, one was CCV executive director Kuykendall, one was FLARE president McNinch, while another was CCV board member Nick Clark, who also contributed to Loeffel's election campaign.
And the discussion was by no means restricted to the library's Internet policy. Using the Commission's newfound leverage, Loeffel took the opportunity to air many other complaints about the system's allegedly left-leaning policies.
"I have no agenda to hurt the library system," Loeffel told Drescher. "I love our free public library system. I have a lot of concerns about the way decisions are made."
Among her concerns were the "inordinate amount of liberal information" being distributed by local organizations at library branches and a supposed underrepresentation of conservative material in the library's collection.
"If your policy is open and free information to anyone at any age," she said, "then the conservative viewpoint should also be available just as readily as anything else."
Loeffel also expressed concern about the distribution of a "feminist" newsletter that contained a condom "three or four feet from the children's section" while others questioned the library's distribution of two free gay and lesbian periodicals, Family & Friends and the Triangle Journal News.
It was clear who would be calling the shots on filtering, as Loeffel threatened to reappropriate the library's funding to the school system if the board did not act promptly.
"This is not something that this commission sprung on you or that the community sprung on the library board or you as a library director," she told Drescher. "It's something that everyone's been concerned about and that I know has been brought to your attention by the media as well as by individuals in the county. So if that's the incentive that the library needs to go ahead and make a decision, to make sure that the taxpayers are heard and that our children, and in fact our society, is protected, then perhaps that will be a suggestion I will make to the budget committee."
Such drastic measures became unnecessary with the library board's adoption of system-wide filtering two weeks ago. Installation of the new technology, which library officials say will take about three weeks, began last Monday, while the Shelby County Commission intends to meet later this month to vote on whether or not to restore the system's funding.
"I don't see any problem," said Loeffel after the board's vote. "There would have to be a catastrophe before we would hold that money any longer."
Although Drescher says she doesn't know if the library would have eventually adopted filtering were it not for the commission's activism, she says the products that are available have improved considerably since the issue was last considered.
"Nobody's tried it the way we're going to try it," she says. "I'm sure that lots of organizations are going to be in touch with us saying, 'How'd it go?' We're going to try it."
But the controversy may not be over.
On the one hand, there is the possibility of a court challenge. As the ACLU's Weinberg observes: "There are just a plethora of constitutional issues that arise and I think they're going to find those serious stumbling blocks."
On the other hand, the library board's new policy could just be a preview of things to come. The new plan does not address all the concerns of those in the pro-filtering movement. Kuykendall, for example, had advocated the filtering now in use in Tennessee public schools, which filters many more categories than depictions of "full nudity" and "sexual acts" and which he says is "99 percent instead of 90 percent" safe, as the new library plan claims to be. And concerns have already been expressed to the library and to the commission about availability of chat rooms -- which the library decided not to filter because of their value as information resources -- and the filtering of written material that might be offensive.
"Hopefully, the library has taken some pretty big steps right now," says Kuykendall. "Some giant steps. What we're here to do is help them. Their attitude and approach to this has been absolutely wonderful and we're just going to volunteer what we have to offer. ... I want to see what it does. If it doesn't do it, I'll be hollerin'. I'll be standing in the gap. But if it does what we need it to do, then great."
Loeffel, for her part, sees the new proposal as just the first step.
"While we're moving, let's keep up the momentum," she says, adding that she would eventually like to see chat-rooms blocked as well.
As she said at the close of a committee meeting last Monday: "We'll eat the elephant one bite at a time."
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