Academic Computer Users Committee 3/25/99
What is the grand principle involved here? Some will argue that it is
total and unrestrained liberty. That has been the flavor of the debate
so far on campus. I say what is involved here is the burning desire of
our founders to have local control over our moral and cultural environment.
Our revolutionaries did not fight for absolutes because absolutes result
in anarchy. They talked in terms of "unalienable rights" in order to get
their guys to shot a lot of red coats. But once they won the war they did
not jump for joy and yell "Hurrah! We have anarchy." They shouted "Hurrah"
for the right to determine their own political and moral destinies through
local control of the decision making process.
Most, if not all, of the principle figures from that period were members
of colonial legislatures or served in some other area of government. Surely
they understood, like George Washington, that "Individuals entering society
must give up a share of liberty to preserve the rest." They were not extremists
but rather, pragmatists. The constitution they crafted was a document of
balance. It both granted liberties and constrained them as well.
Unfortunately through ignorance, we have forgotten what they fought
for. They created a system of government where powers were not only separated
within a particular level of government, but also between the various levels
of government. State and local sovereignty was a dearly prized possession
that people were not willing to give up except where it was absolutely
necessary.
A little over two centuries later, we have, by degrees and over a long
period of time, given up what they fought to achieve. We have changed for
the worse the delicate political structure that was handed down to us.
You and I have grown up in an era of seemingly unlimited federal power
and very weak state governments. Unfortunately some of you think that this
must necessarily be so and are willing to give up, with hardly a whimper,
one of the last great bastions of state and local control - our educational
system.
I have tried to give you some of our history in my position paper that
built upon my letter to the editor published last Monday. I hope you all
took the time to read my web page and ponder the points made there. If
you have not, then you should postpone your vote until you have done so.
I have seen some of the criticisms leveled at us and am unimpressed.
Already the pleasing yet deceptive sound-bites are appearing. Things like:
"they want to save civilization from the 'anarchy and violence [that] would
reign' from, for example, lewd descriptions of nipples." Such statements
are designed to persuade the unthinking mind. This my friends, is the power
of rhetoric and sophistry on display.
"Socrates prophesied in the Gorgias that a true teacher would
have no more chance of holding his own against the smooth-talking Sophists
with their easy but flashy and pretentious instruction, than an honest
physician would have of winning child patients in competition with a pastry
cook
who prescribed nothing but dessert. Rhetoric was the ruin of all hard
and honest thinking in the ancient world, but it paid big returns [to the
sophist] and swept all before it...." (The Ancient State, Hugh Nibley,
p. 220)
In his classic closing argument in the recent Senate impeachment trial,
Rep. Henry Hyde said something to the effect that: "every man, before he
dies, should be involved in some great cause for humanity in order to justify
his existence." We each have an opportunity to do so here -- for our moral
and cultural environment is on the line.
Our beautiful library can either remain a monument to the highest intellectual
aspirations of humanity, or it can become a giant adult book store to debase
us and rob us of true human dignity.
In thinking further about the issue at hand, I believe that we should
not even have a bona fide research exception. We should install filtering
software and prohibit the willful use of our facilities to access sexually
explicit materials that would offend the community's sense of decency.
We would be free to decide to refuse space on our shelves for all such
materials in book or magazine form and surely we can refuse space on our
cyber-shelves for similar materials transmitted over the Internet.
What is involved here is a library acquisition decision which carries
wide constitutional latitude. See Board of Education v. Pico, 457
U.S. 853 (1982). Unlike other library acquisitions whose contents are fixed,
the Internet is a constantly mutating animal. It is already different than
it was a second ago. Thus every second we are effectively making a new
decision regarding the acquisition of materials through that medium. The
filtering software acts as a cyber-acquisitions person in the library to
aid our staff in making decisions they would constitutionally be free to
make on an item by item basis regarding books, etc.
If we are totally free to choose to have all or none of the Internet
(and we are), it makes no logical sense that these have to be our only
two alternatives. Surely we can choose some but not all of what is there.
Again, do not confuse all of the various cases dealing with point-of-source
censorship. The government is far more restricted in acting in this sovereign
capacity. But as we saw in NEA v. Finley, when the government
acts as a "patron" or sponsor, it has much more constitutional leeway in
deciding what it will promote.
What is at stake here is an attempt to dress up a mere political demand
in the noble robes of "rights." Do you really think the Supreme Court
will create a new and perverse "right" to the free access to pornography
at taxpayer expense even against the wishes of the community served?
I don't think they will. But they won't even have to address the issue
if our opponents win by default because you are too afraid to stand up
for your true and legitimate right to local self-determination on this
issue.
Picture the fight - David versus Goliath! If we win, just imagine the
heaps of praise that will rise from every community across the nations
as they collectively heave a sigh of relief from some of the crushing burden
they feel from federal tyranny.
For each argument made against us, I believe there are stronger counter-arguments
in our favor. None of the opposition I have seen to date scares me. Is
there a case already against us regarding the use of filtering software?
Yes - Mainstream Loudoun. But that is only a district court case
- the lowest level of federal courts. Also, it should be noted that the
judge in that case was also the judge in the district court version of
Urofsky. In that case, she ruled that the Virginia law prohibiting
state employees from accessing sexually explicit materials over state owned
or leased equipment was an unconstitutional violation of the professors'
right to free speech. However, she was overruled by the 4th
Circuit Court of Appeals just last month. You should also note that when
Mainstream Loudoun was first decided, the Supreme Court had not
yet issued its NEA v. Finley decision so she did not have the benefit
of that case to guide her ruling.
Are we guaranteed a victory? -- of course not, but I think that we can
win. And if we ultimately lose - so what! It will be for a great cause.
Either way we win.
The other side will, no doubt, scoff at such sentiments and belittle
them. They will try to cast us as the extremists when theirs is truly the
extreme position when considered from the perspective of civil society.
They will suggest that giving any ground will lead to total repression
of speech and thought. But don't be fooled by them.
Consider the following parable: How do you cook a frog? Answer: you
put him in a kettle of cool water and then turn up the heat. As the temperature
rises degree by degree, the frog takes little notice. Finally the water
gets so hot that the frog decides to jump out but it is too late - his
energy and strength are spent. He was not wise enough to see what was happening
to him by degrees along the way.
We are that frog and the opposition has been cooking us by degrees for
a long time but it is not too late to jump out if we have the courage to
do so. But it is up to you. Are issues of right and wrong and good and
evil involved here? Have you intellectually screened out such considerations?
(If so, then a screening mechanism is already in place that is far more
dangerous to society than anything we could supply.) Is our culture and
the right of local self-determination worth fighting for or aren't they?
These are questions that each of you has to answer individually. I hope
you choose wisely.
Thank you.