Filtering of Hard-core Pornography,

Filtering of Hard-Core Pornography,
Child Pornography, And Obscene Sexually
Explicit Material As Defined by State and Federal
Statute from Entering Southern Utah University’s Information
Infrastructure Through the Internet is Constitutionally Defensible

Court cases challenging First Amendment rights and efforts to quash hard-core pornography, child pornography, and obscene sexually explicit material as defined by state and federal statute, is legally and constitutionally defensible and strengthened when argued along these premises:

1^st Amendment Free Speech Lives On—No Agenda, Idea, Message, or Viewpoint Blocking Being Promulgated Here!

Our effort is to have a very limited content-based restriction in SUU’s non-public fora. The hard-core pornography content or material we desire to be filtered are materials not covered by 1^st Amendment free speech domain. See Bethel School District No. 403 v. Fraser, 478 U.S. 675, 685 (1986). Filtering decisions premised upon distinctions based on "prurience" or "lascivious[ness]" are not viewpoint discriminatory—thus not covered by 1^st Amendment free speech domain.

The minimum filtering objective for SUU should be not accept hard-core pornography, child pornography, and obscene sexually explicit material, as defined by state and federal statute, which intent is to protect children under the age of 18 and women from a hostile workplace environment.

We are not trying to filter free speech agendas, ideas, messages, or viewpoints, rather we desire to specifically not accept lewd, lascivious hard-core pornography, child pornography, and obscene sexually explicit material as defined by state and federal statute, just because it is placed on the internet.

There is absolutely no constitutional protection for child pornography, yet child pornography is on the Internet. As the Supreme Court held in Osborne v. Ohio, 495 U.S. 105, 111 (1989):

First, as Ferber recognized, the materials produced by child pornographers permanently records the victim’s abuse. The pornographer’s continued existence causes the child victims continuing harm by haunting the children in years to come. The State’s ban on possession and viewing encourages the possessors of these materials to destroy them.

Second, encouraging the destruction of these materials is also desirable because evidence suggests that pedophiles use child pornography to seduce other children into sexual activity.

If the Supreme Court allows states to ban possession and viewing of such obscene material why not simply and narrowly filter this material?
Desired Filtering Mechanism Can Meet the Criteria of the Miller Test The Supreme Court defines that "obscenity" does not have any 1st Amendment protection.

"Obscenity", by the Miller Test, is that which,

an average person, applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest,
depicts or describes, in a patently offensive way, sexual conduct specifically defined in the applicable state statute, and
the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

X-STOP filtering software is able to screen out pornography that meets the Supreme Court’s definition. Material not covered by 1^st Amendment free speech doctrine can easily be filtered. X-STOP specifically filters by http, ftp, ip and url site designations.

The process X-STOP uses to identify obscene material is as follows: a crawler software identifies 700 to 1,000 new "hard-core pornography" sites every day. The X-STOP personnel then review the site for content and if the site content meets the definition of "hardcore pornography" the site location is entered in a library file designation, a second mandatory verification and sometimes third verification takes place that very day for each site identified to ensure proper classification.

Misguided professor claims of broad filtering and innocent material being "censored" are specious and inflammatory. The technology to filter "hard-core" pornography is available and very affordable for the university. The X-STOP filtering hardware costs about $4,000 and an annual fee of $2,500.

Distinquished from Mainstream Loudon v. Bd of Trustees of the Loudoun County Library24 F. Supp.2^nd 552 (1998) This lower court ruling does not set the "law of the land". The Mainstream Loudoun case confused access to publicly available rooms in the library with the library collection itself. Publicly available meeting rooms can easily become public fora, whereas the library collection cannot. As a result of using the wrong forum analysis, the court also erroneously required the library to show a compelling justification for its use of the Internet filtering software. See, Jay Alan Sekulow, Esq, The American Center for Law and Justice, On the Constitutionality of S.97—a bill to require the installation and use by schools and libraries of internet filtering software, p. 6 of 28.

Mainstream Loudon, 24 F.Supp. at 565, did hold that "minimizing access to illegal pornography and avoidance of creation of a sexually hostile environment are compelling interests," which are bedrock exceptions to 1^st Amendment free speech discrimination.

However, we wish to distinguish SUU proposal from the Mainstream Loudoun case and strictly filter hard-core pornography, child pornography, and obscene sexually explicit material as defined by state and federal statute. We believe the Mainstream Loudoun case is inapposite and irrelevant in the determination concerning the types of aesthetic judgments SUU can make about its own receiving of information from the Internet—specificially because the judge confused public forum from non-public forum.

SUU’s Internet acquisition and receiving decisions do not have to follow the Mainstream Loudoun case concerns, specifically, SUU can stipulate that their "filtering" decision is an "acquisition" decision and see to that no library acquisition policy states a contrary-wise position.

By the way, the Judge Brinkema, of Mainstream Loudoun case, has been reversed by the 4^th Circuit Court of Appeals on another more pervasive 1^st Amendment free speech case involving the restricted use of accessing sexually obscene material on the Internet. Yes, her judgment and constitutional reasoning was trumped by a higher court. See Urofsky v. Gilmore (1999 US App. Lexis 1937).

Also, another very important fact regarding the evolution and creation lower-court ruling that look up to the Supreme Court for guidance regarding their holdings, when the Mainstream Loudoun case was first decided, the US Supreme Court had not yet rendered its NEA v. Finley decision, that Professors Lewis and Barnes rely upon in our arguments. So, Judge Brinkema did not have the benefit of that Supreme Court case in rendering her decision. See National Endowment for the Arts v. Finley, 118 S.Ct. 2168 (1998).

Sponsorsihip v. Censorship

Your Choice is Based Upon Your True Underlying Motivation

Proponents for pornography on the Internet will have you believe that this is only an issue of censorship. Opponents against pornography will have you believe that this is an important, constitutional matter of sponsorship. The decision you must make is what are you really for? Should SUU become the regional XXX adult porno shop or should SUU and its library be known as an safe environment—freer of sexual predators, freer of a sexually hostile work environment, freer of illegal material being viewed—unwittingly—by our children, where all peoples, can safely research, study, and enlighten themselves.

I say, "let right be done," let us not sponsor hard-core pornography, child pornography, and obscene sexually explicit material as defined by state and federal statute. We can win this culture battle!

As stated above, X-STOP can filter using their machine to identify URL sites and after visual review, if it meets "hard-core" definition, the URL site is blocked. A good faith, good samaritan effort to block illegal material is safeguarded by

47 U.S.C. sec. 230 (c) (2).

The university can delegate its prerogative to filter hard-core pornography to

X-STOP because of the needed technological assistance in quashing the devious means being used to introduce hard-core pornography to the public.

Let’s Not Make Our Institutions of Higher

Education and University Libraries Local Pornography Shops

Our university labs and buildings and university library are considered non-public fora. They do not carry with them "public forum" designation, which carries with it a higher-level scrutiny for allowing varying viewpoints, ideas, and messages. These state-owned facilities carry with them the legal designation of "non-public." The non-public fora designation allows for greater lattitude for "aesthetic decisions" to be made that would not infringe upon 1^st Amendment free speech. SUU’s library and university could make aesthetic decisions on what material it will accept.

Universities and libraries are designated to "provide authorized patrons" with articles necessary for educational and "convenience" purposes. To further those goals, libraries choose certain materials for purchase and offer these materials to authorized patrons. Libraries do not open their shelves to every "magazine, book, film, or speaker who seeks access to [their] shelves."

Utah’s pornography statutes compel state institutions to take affirmative action to restrict access to obscene material.

Go back to the Internet pornography page