The CIPA is, on its face, a law intended to keep material harmful to minors from being freely displayed on Internet terminals at libraries. <RealityCheck> The CIPA is a political tool in the ongoing culture wars. </RealityCheck> The decision last week in U.S. v. American Library Association, Inc., 539 U.S. ____ (2003) (slip opinion, 747kb PDF), looked at the wrong question. If this portends a trend, it could have serious implications for publishing.
The problem with ALA is that it looked only at the speech (in the constitutional sense of the word) being controlled. It missed the main point: that other speech is being forced down the throat of the libraries. Further, it is not even speech that allows the libraries to see it. What is it? The designation of a given piece of material on the Internet as "harmful to minors" and/or "obscene."
Libraries can't see it because the filtering software companies use proprietary methods of classifying material, and take extreme precautions to keep those methods from being made public or even available for good cause to customers. Whether particular material is "harmful to minors" and/or "obscene" is not an objectively verifiable inquiry. If, on the other hand, the CIPA was pointed at "religious" material, it would function identically, and could use the same basic engines in the filtering software. Since our elected representatives don't want to be painted as being in favor of kiddie porn, they chose a flawed regime (filtering by uncontrolled third parties) that is at least as political as was the Comstock Act.
This matters to writers and publishers. Or at least it should. It is not hard to imagine erotica with the phrase "my little girl/boy" somewhere in there that is not, in reality, referring to a person under the age of 18. Since we do not—and cannot—know whether filtering software would catch it if it was objectionable (or, conversely, block it even if it is not), neither do or can we determine whether literary work X that contains the material might be blocked. That is arbitrary and capricious censorship.