Will Sex Harassment Laws Colonize Cyberspace?
With the Internet coming to America's libraries, civil libertarians and traditional-values types are skirmishing over how much access to allow children.
In Loudoun County, Va., the library board recently decided to restrict everyone's access to the Net's red-light district, which predictably produced a lawsuit.
But what appears at first glance to be a mundane battle over censorship has an eye-catching twist. The library board didn't write a policy on cyberporn, but a "Policy on Internet Sexual Harassment."
Loudoun's library isn't restricting Internet access so that children won't be exposed to sexual displays. It's restricting access so that the library staff and patrons won't be exposed to sexual displays and thus a "sexually hostile environment."
Call it a case of censorship for sensitivity's sake.
The policy states: "Permitting pornographic displays may constitute unlawful sex discrimination in violation of Title VII of the ('64) Civil Rights Act." Title VII bars employment discrimination.
The statute has been used already to ban cheesecake pin-ups from shipyards and Goya's "Naked Maja" from Pennsylvania State University. Loudoun is now applying it to ban portions of the Internet from its libraries.
This is not a surprising development, says Eugene Volokh, who teaches constitutional law at the University of California, Los Angeles, and who has published widely on the threat posed to free speech by Title VII.
Volokh maintains that Title VII is becoming a nationwide speech code through which the government punishes politically incorrect statements by people in private institutions. The problem, Volokh believes, is that every place is SOMEBODY'S workspace. Give the government the right to restrict speech where welders toil, and it will eventually assert the same right where librarians work, too.
Policies like Loudoun's don't sit well with members of what Volokh calls the "intellectual left." They see a difference between the highbrow speech in the libraries they frequent and what they regard as the less important speech of the shipyard, construction site or corporate office.
Professor Deborah Epstein of Georgetown Law Center defends the distinction between libraries and shipyards. "The fundamental purpose of a university—the same goes for the library—is about the free exchange of ideas. I think this makes the freedom-of-speech interest stronger."
Ann Beeson, an American Civil Liberties Union lawyer specializing in free speech and cyberspace, dismisses the Loudoun policy as "totally worthless in terms of legal theory."
Is it? Or is the library's policy the logical extension of liberal speech correctness, now exploited by religious conservatives in the interest of maintaining traditional values.
Volokh, though opposed to Loudoun's Net filtering, thinks the logic of Title VII doesn't support any legal distinction between speech in shipyards and speech in libraries. Any employer could claim that open exchange is vital to his or her business. Yet employers and employees are frequently found in violation of Title VII rules against harassing speech.
And Title VII has been applied often in settings where information and the free exchange of ideas are purportedly paramount. At the University of Nebraska, a graduate student was forced to remove a picture of a woman in a bikini—his wife, as it happened—from his desk after a harassment complaint was filed.
There's already a precedent for applying the law in a library; one librarian was forced to take down a New Yorker cartoon containing the word "penis," a reference to the Bobbitt affair.
The Loudoun case, though, promises to break new speech-code ground. Loudoun's library board claims not only to be protecting its staff, but library patrons as well.
"Loudoun's policy doesn't just talk about hostile work environment," notes Volokh, "but also hostile public accommodations." The speech implications for such a precedent are significant. Says Volokh, "If harassment in the workplace is illegal, then harassment in education is illegal, and harassment in public accommodations is also illegal."
Should the Loudoun library board prevail, there may soon be no interaction that is not subject to government scrutiny about what is permissible speech, an astounding reversal of American tradition.