In the case of a legal challenge, the distinction that Justice Brennan drew between a collection development decision and a removal decision can only be justified by erecting the necessary elements that would hold up the case to strict court scrutiny as Brennan did. The other side's position will hold up under a rational basis of scrutiny.

Brennan had to make the distinction between acquisition and removal because, as he wrote, "the action before us does not involve the acquisition of books....Rather, the only action challenged in this case is the removal from school libraries of books originally placed there by the school authorities, or without objection from them." There seemed to be no issue as to the board's discretion in choosing books to add to the libraries of their schools so that the substantive question before Brennan was "Does the First Amendment impose any limitations upon the discretion of petitioners to remove library books from the Island Trees High School and Junior High School? Could Brennan have restated the substantive question differently?

I don't know but in answering the substantive question, Brennan seemed to have tried to balance the discretionary rights of the school board and the students free speech rights but along the way seemed to have been building up arguments that will make the case hold up to strict scrutiny.

• he acknowledged the broad discretion of school boards to manage school affairs but pegged it on the students' constitutional rights to free speech "in light of the special characteristics of the school environment" and furthermore, within the "special characteristics of the school library." Brennan seemed to be drawing the narrow specificity that a strict scrutiny requires at this point.
• he acknowledged the school board's rightful claim to "absolute discretion in matters of curriculum by reliance upon their duty to inculcate community values in schools" but qualified that discretion by saying that the school board's "reliance upon that duty is misplaced where they attempt to extend their claim of absolute discretion beyond the compulsory environment of the classroom into the school library and the regime of voluntary inquiry that there holds sway." Brennan seemed to have declared the school library as a designated public forum at this point. A content-based scrutiny of the case is set in place.

• he acknowledged the school board's "significant discretion to determine the content of their school libraries" but again qualified it by writing that "that discretion may not be exercised in a narrowly partisan or political manner." The stage is then set for Brennan to define the students' right to receive and the principle of a suppression of ideas to justify a distinction between acquisition and removal.

Under a rational basis of scrutiny, the dissenting judges in the Pico case treated the constitutional question differently. They focused more on whether the removal of the books in question foreclosed any alternatives for their access. They determined that it was not the case in Pico, that the students still had access to these books in bookstores and other libraries and moreover, the students were still free to discuss the ideas in these books in their classrooms. Rehnquist reasons that "the denial of access to ideas inhibits one's own acquisitions of knowledge only when that denial is relatively complete. If the denied ideas are readily available from the same source in other accessible locations, the benefits to be gained from exposure to those ideas have not been foreclosed by the State." This makes any argument about suppression of ideas fallacious and shows that the right to receive is only tenable within the limits built around it by the plurality. One of these limits is the distinction made by Brennan between acquisition and removal and about which Burger writes, "Yet if the First Amendment commands that certain books cannot be removed, does it not equally require that the same books be acquired? Why does the coincidence of timing become the basis of a constitutional holding? According to the plurality, the evil to be avoided is the "official suppression of ideas." It does not follow that the decision to remove a book is less "official suppression" than the decision not to acquire a book desired by someone."

Yes, I find Rehnquist's distinction convincing. I will quote a full paragraph from Rehnquist's opinion because it explains more vividly than I could in my own words the circumstances under which he made his distinction. I will also compare and contrast Rehnquist's distinction with a distinction Brennan made regarding the role of the state as regards to education.

[From Rehnquist's opinion in the Pico case] "With these differentiated roles of government in mind, it is helpful to assess the role of government as educator, as compared with the role of government as sovereign. When it acts as an educator, at least at the elementary and secondary school level, the government is engaged in inculcating social values and knowledge in relatively impressionable young people. Obviously there are innumerable decisions to be made as to what courses should be taught, what books should be purchased, or what teachers should be employed. In every one of these areas the members of a school board will act on the basis of their own personal or moral values, will attempt to mirror those of the community, or will abdicate the making of such decisions to so-called "experts." In this connection I find myself entirely in agreement with the observation of the Court of Appeals for the Seventh Circuit in Zykan v. Warsaw Community School Corp., 631 F.2d 1300, 1305 (1980), that it is "permissible and appropriate for local boards to make educational decisions based upon their personal social, political and moral views." In the very course of administering the many-faceted operations of a school district, the mere decision to purchase some books will necessarily preclude the possibility of purchasing others. The decision to teach a particular subject may preclude the possibility of teaching another subject. A decision to replace a teacher because of ineffectiveness may by implication be seen as a disparagement of the subject matter taught. In each of these instances, however, the book or the exposure to the subject matter may be acquired elsewhere. The managers of the school district are not proscribing it as to the citizenry in general, but are simply determining that it will not be included in the curriculum or school library. In short, actions by the government as educator do not raise the same First Amendment concerns as actions by the government as sovereign."

Compare this to Brennan's distinction between the role of the school board in the classroom environment and the role of same in the school library environment:

"Petitioners emphasize the inculcative function of secondary education, and argue that they must be allowed unfettered discretion to "transmit community values" through the Island Trees schools. But that sweeping claim overlooks the unique role of the school library. It appears from the record that use of the Island Trees school libraries is completely voluntary on the part of students. Their selection of books from these libraries is entirely a matter of free choice; the libraries afford them an opportunity at self- education and individual enrichment that is wholly optional. Petitioners might well defend their claim of absolute discretion in matters of curriculum by reliance upon their duty to inculcate community values. But we think that petitioners' reliance upon that duty is misplaced where, as here, they attempt to extend their claim of absolute discretion beyond the compulsory environment of the classroom, into the school library and the regime of voluntary inquiry that there holds sway."

Both opinions place limits on the state by virtue of the nature of the place where the state exercises its functions but Rehnquist's opinion makes a connection between the different roles of the state and the different natures of elementary, secondary, and tertiary schools and argues that the First Amendment speaks in a different voice in each context. Brennan, on the other hand, does not differentiate any roles of the school board, only makes a distinction between the nature of the classroom and the nature of the school library, then applies the First Amendment as a transcendent right only in the school library. I find Brennan's treatment of the First Amendment disembodied and therefore meaningless in its supposed transcendence. It defies reason and logic, it defies life and freedom itself. Rehnquist puts the First Amendment within the broader context of the workings of democracy - the only context in which fundamental rights like free speech can have true meaning. Rehnquist's distinction both honors the institution of representative government as exemplified in this case by the school board and the expression of "personal social, political and moral views" in the exercise of duty that is mandated and monitored by the processes of representative government. I find that freedom of speech can be more protected and better expressed within the constraints of governance and citizenship than in disconnected compartments created by an assumed transcendence of this most fundamental right in a democracy. And so, I will let Rehnquist speak one more time in yet another quote from his opinion:

"I think the Court will far better serve the cause of the First Amendment jurisprudence by candidly recognizing that the role of government as sovereign is subject to more stringent limitations than is the role of government as employer, property owner, or educator. It must also be recognized that the government as educator is subject to fewer strictures when operating an elementary and secondary school system than when operating an institution of higher learning."

Rehnquist' distinction also makes Brennan's distinction illogical since the government as property owner can decide to close down a school which includes the school library.

I see the librarian's role as coming into focus where the legitimate objectives of a law like CIPA must be balanced against the First Amendment rights of patrons. Where CIPA is applicable (libraries receiving federal assistance under the E-rate and LSTA programs), there is no question that librarians have a legal responsibility to comply with the requirement of the law to have some type of filter or blocking technology on all of its computers with Internet access to protect against access to visual depictions that are not protected by the First Amendment (obscene or pornographic, child pornography, and harmful to minors). However, at the point of making judgments between legitimate state interests in children and the legitimate rights of patrons to protected speech, CIPA puts the professional responsibility of a librarian under pressure. Is this an undue burden on librarians or is it an opportunity to exercise what has always been the professional role of a librarian and to further define that role in the new environment of the Internet?

Considering that 5 justices agreed that filtering blocks access to a significant amount of constitutionally protected speech, yes, CIPA, as applied, shifts the burden on libraries to determine if its requirements are unconstitutional. As Sutton raised some questions in his lecture, how will librarians make unblocking decisions only for "bona fide research or other lawful purposes" when all purposes are lawful "except to retrieve and view obscene materials, child pornography and materials 'harmful to minors'"? Will a librarian know "if something is obscene (and therefore not protected) particularly before viewing when the decision to unblock must be made"? Will the Miller test be enough of a guidance "to determine whether an expression is merely indecent (protected by the First Amendment) or obscene (not protected by the First Amendment)? I find these questions challenging but do not find them to put an undue burden on librarians. Rather, these questions should challenge librarians to become more aware of the ethics of librarianship and to create standards of practice to which library professionals should be held accountable. I also think that the Miller test requires the librarian to exercise his/her discretion by being more aware of his/her community's contemporary standards as to the "requisite and appropriate quality" of a work, taken as a whole. This awareness should inform the librarian when making decisions to unblock. I think this comports very well with the plurality's description of the traditional mission of a public library. I think the librarian should be able to unblock and view material in question to be able to apply his/her professional judgment as to whether such material is not protected by the law and to be able to do this as a matter of professional duty (not subjecting the librarian nor the patron to violations of the law). In this case, it appears that librarians have the freedom to exercise their professional judgment as they are supposed to do and be able to do it without fear that they are infringing on their patrons' First Amendment rights.

Also, as suggested in the discussion forums in class, one avenue for libraries and librarians to get around the inadequacies of filtering software is to face it by perhaps working closely with commercial producers of filtering software in carefully constructing and using meta-data that will make filters better distinguish obscene (unprotected) from indecent (protected) material on the Internet. Libraries or a consortium of libraries can also develop non-commercial filtering software. However, I have since thought more about these technical solutions and I think now that these could have the same effect as the argument of the dissenting opinion that filters can only lull parents and other concerned parties to thinking that technical measures can fully protect children from obscene, pornographic, and harmful materials on the Internet. Also, the issues around First Amendment rights that CIPA and other similar laws raise involve complex human judgment around fundamental issues of freedom and democracy. Extreme care must be taken not to shift the burden to technology. But as technology is increasingly becoming both the tool and the environment for the flow of information, libraries and librarians still have a huge responsibility to actively see what role they must play at the nexus of law, technology, and society. At which points in the flow of information in both electronic and print form in social contexts can librarians be most proactive?

The plurality opinion in the Supreme Court decision on CIPA states that "to fulfill their traditional missions, public libraries must have broad discretion to decide what material to provide to their patrons. Although they seek to provide a wide array of information, their goal has never been to provide 'universal coverage.' Instead, public libraries seek to provide materials 'that would be of the greatest direct benefit or interest to the community.' To this end, libraries collect only those materials deemed to have 'requisite and appropriate quality.'" To support this description of the traditional mission of a library, the plurality opinion quoted some sources which include some describing the librarian's traditional responsibility - "The librarian's responsibility is to separate out the gold from the garbage, not to preserve everything " (W. Katz, Collection Development: The Selection of Materials for Libraries). "It is the aim of the selector to give the public, not everything it wants, but the best that it will read or use to advantage" (F. Drury, Book Selection xi). It's hard to quarrel with such a "traditional" role of libraries and librarians. I don't find anything "moralistic" or outdated about it. But how does it translate with the materials available on the Internet? Here again, Sutton's models of service where the roles of the librarian as technician, author, and consultant converge can be most helpful.

Lastly, in facing the challenges of CIPA, as applied, librarians still have the opportunity to bring CIPA back to the Court, if in the assiduous exercise of their professional duty, they find CIPA to violate constitutional rights. In a sense, librarians still have enormous opportunities to influence laws that affect the core of their profession.