Title: "The 'vexing' question of the state's interest in preventing minors' access to 'harmful to minors' material"

Author: Lee Tien, Senior Staff Attorney, EFF

It's widely accepted that the state has an interest in preventing minors' access to "harmful to minors" (HTM) material. EFF does not discuss whether the state interest in preventing minors' access to obscenity or child pornography is strong. Consequently, most First Amendment analyses of the problems posed by technological solutions focus on strict scrutiny's narrow tailoring prong -- that too much protected speech or too little HTM speech may be blocked, the Scylla and Charybdis^[1] of over- and under-inclusiveness.

In this White Paper, EFF argues that the state interest is much narrower than appears at first glance. EFF does not here challenge the proposition that the government has a legitimate interest of some sort, and we believe that such arguments are not specious. But in particular, EFF believes that the government has failed to establish that there exists a problem to be solved, as distinguished from a vague fear. See Catherine J. Ross, Anything Goes: Examining the State's Interest in Protecting Children from Controversial Speech, 53 Vand. L. Rev. 427 (2000). In the remainder of this essay, we will refer to the Supreme Court as the "Court." As the Court has observed, the extent of governmental power to regulate conduct of minors not constitutionally regulable when committed by adults is a "vexing" question, "perhaps not susceptible of precise answer."Carey v. Population Servs. Int'l, 431 U.S. 678, 692 (plurality opinion) (1977). EFF's general thesis is that the state interest disappears or weakens depending on the assertion of parental or minor claims. The interest is weakest when parents and minors, together, object to blocking. Furthermore, mature minors have a limited but significant constitutional right to receive information even against their parents' wishes. See generally Catherine J. Ross, An Emerging Right for Mature Minors to Receive Information, 2 U. Pa. J. Const. L. 223 (1999).

Our first point goes to the nature of this state interest. The Court has characterized it as substantial or compelling, but also as secondary to parents' interests.Reno v. ACLU, 521 U.S. 844 (1997); Ginsberg v. New York, 390 U.S. 629 (1968); Prince v. Massachusetts, 321 U.S. 158, 166 (1944). To a large extent, then, this state interest in protecting minors is derivative of parental choice. This characterization carries significant implications. It means that the state has no interest in blocking a minor's access to HTM material to which parents do not object. A technological solution that does not or cannot respect parental choice infringes the child's First Amendment rights as well as the parents' substantive due process rights. Thus, EFF believes that any technological solution based on this interest must be capable of respecting parental choice as to what their children may see or read, without subjecting either parent or child to undue burdens.We note further that parental wishes in this area need not conform to the categories used in technological solutions. Parents may object to violence but not nudity, or to nudity but not religious speech.

Our second point is that the case for state control over minors' access to Internet speech is not uniformly strong across all minors. On the one hand, common sense and caselaw tell us that there is a world of difference between 8- and 16-year-olds. As the Court recognized in Reno v. ACLU, "the strength of the Government's interest in protecting minors is not equally strong throughout the [age] coverage" of the Communications Decency Act (CDA).Reno, 521 U.S. at 878 (using examples of 17-year-olds); Am. Booksellers Ass'n v.Webb, 919 F.2d 1493, 1504-05 (11th Cir. 1990); Am. Booksellers Ass'n v. Virginia, 882 F.2d 125, 127 (4th Cir. 1989). On the other hand, minors "are 'persons' under our Constitution. . . . possessed of fundamental rights which the State must respect"Tinker v. Des Moines Indep. Cmty Sch. Dist., 393 U.S. 503, 511 (1969); see Planned Parenthood v. Casey, 505 U.S. 833, 899 (1992) (parental consent statute must contain method by which minor can obtain abortion without parental consent); see In re Gault, 387 U.S. 1, 13 (1967) (minors' right to criminal due process). and "are entitled to a significant measure of First Amendment protection."Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-213 (1975) (citation omitted). Minors' right to receive information has clearly been recognized in the school context.Tinker, 393 U.S. at 511; Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867, 872 (1982) (plurality opinion).

Indeed, minors' fundamental rights, including the right to receive information, strengthen as they grow older. As the Court has said, "constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority."Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976) (minors' right to abortion). Accordingly, government may not unduly burden older minors' right to receive information in certain situations, even with parental consent.

EFF's analysis does not in itself negate settings-based state interests. EFF merely argues that the state interest generally relied on here is subject to significant procedural and substantive constitutional constraints. Other interests may serve the state in particular settings. Within a public school^[2], for instance, the government may rely on independent state interests to justify restrictions on student access. Even so, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."Tinker, 393 U.S. at 506. Moreover, some high school students are 17 or 19, and thus not minors for HTM purposes.The HTM analysis applies only to those under the age of 17. Reno, 521 U.S. at 865-6 (distinguishing statute upheld in Ginsberg, supra, which defined minor as person under 17 from CDA, which applies to all under 18 and thus "includes an additional year of those nearest majority"). Finally, the state interest in libraries is considerably weaker than in schools.

I. Parents may authorize their children to receive HTM speech

In our first White Paper, EFF analyzed the constitutional definition of HTM speech. We explained that the Court has held that government may restrict minors' access to HTM speech, but has also significantly limited the category. Thus, "[s]peech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them."Erznoznik, 422 U.S. at 213-4. Here, we focus on the state interests that underlie this constitutional definition, in light of Ginsberg v. New York390 U.S. 629 (1968). and Reno.521 U.S. 844 (1997).

The Court has not directly questioned the substantiality of the government interest at issue here.Id. at 863 n. 30 ("compelling interest in protecting minors from 'indecent' and 'patently offensive' speech"); Sable, 492 U.S. at 126 ("compelling interest in protecting the physical and psychological well being of minors"). Reno, for instance, rested largely on the right of adults to receive information.Reno, 521 U.S. at 874 (statute suppressed speech "that adults have a constitutional right to receive"); cf. Butler v. Michigan, 352 U.S. 380, 383 (1957) (state cannot reduce the adult population to "reading only what is fit for children"). Nevertheless, we believe that there is significant justification for attacking the blanket assumption of a compelling state interest here.

The HTM category in Ginsberg was justified on two grounds: "parents' claim to authority in their own household to direct the rearing of their children," and "the State['s] . . . independent interest in the well-being of its youth."Ginsberg, 390 U.S. at 639-40. For EFF's purposes, there are two critical points here. First, these two seemingly distinct interests are served by the single HTM test.The Court tends not to apply these two apparently independent grounds independently: the first ground is emphasized in analyzing general restrictions on minors' access to speech, while the second is emphasized in analyzing access restrictions in special settings, such as schools. Second, the state's "independent" interest is legally subordinate to parents' interests.

Reno I is especially instructive here, because the Court there made clear that the state's interest is limited to assisting parents in controlling minors' access.Reno, 521 U.S. at 865 ("the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society"), quoting Ginsberg, 390 U.S. at 639; id. at 865 n. 31 ("It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."), quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944). While Reno I's discussion of Ginsberg speaks of "the State's independent interest in the well being of its youth," it immediately subordinates this interest to that of parents in directing the rearing of their children. Thus, the Court explicitly noted that a constitutional flaw of the CDA was that it applied even if parents consented to or participated in the speech, while the statute upheld in Ginsberg did "not bar parents who so desire from purchasing the magazines for their children."Reno, 521 U.S. at 865, quoting Ginsberg, 390 U.S. at 639 ("the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children"). Plainly, the Court views the state's "independent" interest in minors' well-being under Ginsberg as trumped by the parents' interest.See also United States v. Playboy Entertainment, 529 U.S. 803 (2000); Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 758-9 (1996) (rejecting substitution of congressional values for parental choices and noting that the existence of "inattentive parents" means that nothing short of a total ban can protect the "determined child").

It follows that the state has no interest in controlling minors' access to information when parents do not wish to do so. EFF therefore argues that technological solutions, whether applied in schools or libraries, must permit parents to authorize their children's access to HTM speech.

At first glance, this assertion is surprising, especially because it is in schools that the state's independent interest is strongest. But despite the state's interest being strongest in schools, both schools and courts have still been receptive to parental claims about their children's exposure to material. Accordingly, mechanisms that accommodate parental wishes must apply in all settings.

While the state's interest in the school setting is strong, it is constitutionally bounded. One such bound is the First Amendment itself. "In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate."Tinker, 393 U.S. at 511; see West Virginia. v. Barnette, 319 U.S. 624, 633 (1943) (schools' responsibility to "educate the young for citizenship" includes transmitting respect for "scrupulous protection of Constitutional freedom for the individual"). Another constitutional bound is the parental zone of autonomy: the "primary role of parents in the upbringing of their children is now established beyond debate as an enduring American tradition."Wisconsin v. Yoder, 406 U.S. 205, 232 (1972); Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925) (requirement that all children between eight and sixteen attend public schools unconstitutionally interfered with parents' right to direct education of their children); cf. Moore v. City of E. Cleveland, 431 U.S. 494 (1977) (protecting extended family members' rights to live together).

Furthermore, schools often accommodate or try to accommodate parental wishes as to the exposure of their children in school to undesired material,See Ross, Minors' Right to Receive, at 247 n. 119 ("nearly every school district in the country allows parents 'to opt their own children out of sexuality and AIDS education, as well as out of specific activities or assignments that conflict with their religious beliefs.'"), quoting People for the American Way, A Right Wing and a Prayer: The Religious Right and Your Public Schools 60 (1997). even when the material is part of the school's chosen curriculum.Under prevailing law, the state interest is especially strong with respect to curricular material. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (upholding teacher's censorship of articles destined for newspaper prepared by journalism class). Nevertheless, courts have held that students "may be excused from any part that conflicts with the parents' religious beliefs." Citizens for Parental Rights v. San Mateo County Bd. of Educ., 51 Cal. App. 3rd 1, 19 (1975). In some states, such accommodation with respect to all or specified categories of curricular materials is required.See Minn. Stat. Ann. ¤ 126.699 (West 1994) (schools must allow parents to review curricular materials and must provide alternative materials to replace those that parents find objectionable for any reason); Mass. Gen. Laws Ann. ch. LXXI 32A (West 1998) (requiring that school districts notify parents of the content of any curriculum primarily involving "human sexual education or human sexuality" and afford parents a flexible way of exempting their children from such curricula upon written notice to the school); Va. Code Ann. ¤ 22.1-207-2 (Michie 1998) (giving public school parents the right to review "the complete family life curricula [sic], including all supplemental materials"). Perhaps the most accommodating situation is under the school voucher system in Milwaukee, Wisconsin, where a parent may use public funds to send a child to a parochial school and then demand that the religious school allow that child to "opt out" of any curricular material that offends the parent. See Jackson v. Benson, 578 N.W.2d 602, 609 (Wis. 1997), cert. denied, 119 S. Ct. 466 (1998). Thus, one scholar concludes that "this practice of parents 'opting out' on behalf of their children generally goes unquestioned."Ross, Minors' Right to Receive at 248 and n. 123 (citing cases). But see Altman v. Bedford Cent. Sch. Dist., 45 F.Supp.2d 368, 383, 385-6, 396 (S.D.N.Y. 1999) (holding that parents do not have the right to remove their children from required classes covering such topics as Indian culture and the Hindu religion, the life of Buddha, or Quezacoatl, and that there is no constitutional basis for a blanket "parental opt-out" privilege). The major limit on school accommodation is when parents go beyond seeking to control what their children receive and "seek removal of material of which they disapprove from circulation to any students within the school."Ross, Minors' Right to Receive at 248 n. 124 (citing cases).

The implications of this practice and the cases should be clear: schools traditionally, and sometimes by statute, accommodate parental wishes as to their children's exposure to material in school. EFF therefore argues that parents enjoy at least as much right to insist that their children not be blocked from objectionable speech. Indeed, parents may have more right to opt out of blocking.See Linmark Ass'n v. Township of Willingsboro, 431 U.S. 85, 96 (1977); Griswold v. Connecticut, 381 U.S. 479, 482 (1965) ("the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge"). As the Ninth Circuit recently observed, "that a student is required to read a book does not mean that he is being asked to agree with what is in it. . . . a necessary component of any education is learning to think critically about offensive ideas - without that ability one can do little to respond to them."Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1031 (9th Cir. 1998) (describing school decision that allowed plaintiff African-American student to leave class discussion of Huckleberry Finn and another book that used the derogatory term "nigger").

The only remaining question is how parental wishes would be accommodated. As a threshold matter, parents must have enough information at the right time in order to be able to exercise their right to choose. At a minimum, schools must tell parents that blocking exists and what is being blocked, e.g. blacklists and blocking criteria. Schools must therefore themselves acquire this knowledge in order to inform parents. EFF contends that under Pico, schools have a First Amendment duty to understand what is blocked in order to maintain blocking within constitutional limits.See Pico, 457 U.S. at 874 (suppression of information in school libraries must be based on "established, regular and facially unbiased procedures for the review of controversial materials"). Thus, schools will already have this knowledge.

It is also necessary to assure that parental choice can be accommodated. Such parental determinations need not be "blanket." Parents may object to violence but not nudity, or to nudity but not religious speech. Thus, any technological solution that depends on this interest in assisting parents must be implemented so as to respect parental determinations of what their children may see or read, without subjecting either parent or child to undue burdens. This implies that technological blocking mechanisms must be adjustable for individual students.

Furthermore, EFF argues that schools must minimize the burdens associated with the parental decision process. The general principle here is that government may not impose affirmative obligations on one to receive information,Lamont v. Postmaster Gen., 381 U.S. 301, 307 (1965). which suggests that schools cannot put the burden on parents to opt out of blocking.

II. The state interest, measured against minors' independent rights.

In this section EFF argues that in some cases minors are entitled to receive information even absent parental authorization, by virtue of their own constitutional rights. The most obvious case is schools with children 17 years of age and older, because such children are not minors for purposes of HTM doctrine. High-school students 17 years of age and older are, of course, not minors. Even younger schoolchildren, however, possess constitutional rights,"[C]onstitutional rights do not mature and come into being magically only when one attains the state-defined age of majority." Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976). which may ripen at different times and in different contexts.See, e.g., Erznoznik v. City of Jacksonville, 422 U.S. 205, 214 n.11 (1975) (discussing how age is a significant factor in deciding "whether a minor has the requisite capacity for individual choice") (quoting Tinker, 393 U.S. at 513); Peck v. Upshur County Bd. of Educ., 155 F.3d 274, 287-8 (4th Cir. 1998) (anticipating that Supreme Court would distinguish young elementary school students from older children in terms of their ability to distinguish private religious speech from government speech); In re Andrew R., 454 N.Y.S.2d 820 (Fam. Ct. 1982) (finding that Andrew's commitment to treatment center for seven months based solely on parents' petition violated his fundamental liberty interest in absence of review by neutral factfinder); Davis v. Page, 385 F.Supp. 395, 398 (D. N.H. 1974) (rights of children distinguishable from those of their parents under First Amendment).

Of particular significance for this discussion is the concept of the "mature minor" recognized in Bellotti v. Baird,443 U.S. 622 (1979) (plurality opinion). under which certain minors have a constitutional right to obtain abortions without parental consent under certain circumstances. Id. at 640-3; Planned Parenthood v. Casey, 505 U.S. 833, 899 (1992); Lambert v. Wicklund, 520 U.S. 292 (1997). Here we focus on the situation where a mature minor wants information that is generally available on the Internet, but the minor's parents object to such Internet access. Public efforts to enforce parental restrictions on a mature minor's effort to receive speech necessarily involve state action. EFF argues that under certain conditions, state restrictions in service of parental censorship violate a minor's independent individual right to receive information and ideas.

In Bellotti, the Court listed three factors that justify distinguishing the rights of minors from those of adults: (i) the "peculiar vulnerability" of children; (ii) their presumed "inability to make critical decisions in an informed, mature manner"; and (iii) the significance of the "parental role in child rearing."443 U.S. at 634. Accordingly, "mature minors" possess greater rights under the Constitution than their immature counterparts.Id. at 640-3.

The clearest example is that of sexually active minors, who often need information about reproductive health, sexually-transmitted diseases, contraception and abortion. A characteristic of a mature minor is the "ability to make critical decisions in an informed . . . manner."Id. at 634. Conversely, mature minors possess close to the "full capacity for individual choice which is the presupposition of First Amendment guarantees."Id. at 635 n.13 (quoting Ginsberg, 390 U.S. at 649).

It follows that such minors have a right to information about abortion; otherwise, they cannot receive precisely the information that would enable them to make informed decisions about abortion. No bright-line test exists here, but girls as young as 13 have sought judicial bypass of parental consent to abortion.In re Anonymous 1, 558 N.W.2d 784, 788 (Neb. 1997) (pregnant ninth grader failed to demonstrate maturity by clear and convincing evidence because she "was unable to communicate to the judge a sufficient understanding of the medical procedure involved, [or] the associated risks" of an abortion). Obviously, not all 13-year-olds will qualify as "mature minors." But the depth of this incursion into Ginsberg's sweeping application of the HTM concept to minors under 17 - devised in 1968 - should give us considerable pause today.

The case is as strong, if not stronger, for information about contraception, sexually transmitted diseases, and reproductive health. The Court held in Carey v. Population Services International431 U.S. 678 (1977) (plurality opinion). that minors have privacy rights concerning reproductive choices, including contraception.Id. at 715. Although Carey was a plurality opinion, the holding that teenagers have privacy rights regarding procreation commanded five votes. See 431 U.S. at 681 (plurality opinion) (Brennan, J., joined by Stewart, Marshall and Blackmun, JJ.); Id. at 693, 702 (White, J., concurring) (agreeing with plurality in result and including "with respect to Part IV" in which plurality recognized privacy interests of minors in contraception). Thus, a blanket prohibition on the distribution of contraceptives to minors is unconstitutional.Id. at 694. Lower federal courts have expressly held that teenagers possess protected privacy interests in contraception as a means of avoiding pregnancy and of preventing disease.See Doe v. Irwin, 615 F.2d 1162, 1166 (6th Cir. 1980) (minor's right of privacy includes right to obtain contraceptives and sex counseling without parental consent). Indeed, the Court in Reno used the specific example of a parent wishing to send information about birth control to a child to criticize the CDA's restrictiveness.Reno, 521 U.S. at 878.

If mature minors are entitled to information about abortion, they are also entitled to information about contraception, which may prevent the need for an abortion.See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 69 (1983) (upholding right of contraceptive manufacturer to mail to the public unsolicited "informational" pamphlets about availability of prophylactics generally and prevention of sexually transmitted diseases) (importance of conveying "truthful information relevant to important social issues"; "the First Amendment interest served by such speech [is] paramount"). While Bolger v. Youngs Drug Products Corp. focused on the right of parents to receive information that might help them in carrying out some of their most difficult responsibilities, the Court also noted that "the statute also quite clearly denies information to minors, who are entitled to "a significant measure of First Amendment protection.'"Id. at 74-5 n.30 (quoting Erznoznik, 422 U.S. at 212). The Court also noted that "adolescent children apparently have a pressing need for information about contraception."Id. at 74-5 n. 30. Lower courts have recognized that state HTM statutes create a risk that "discussions would be stifled to the point that a teenager seeking answers to curious questions concerning a subject foremost on their mind, could not find answers via this medium [creating a risk of] greater numbers of teenage pregnancy or sexually transmitted diseases [which would be] contrary to the interests of the State."Cyberspace Communications v. Engler, 55 F.Supp.2d 737, 749 (E.D. Mich. 1999) (overturning Michigan statute that redefined obscenity as "sexually explicit ... material harmful to minors" knowingly disseminated to them). Recognizing mature minors' rights to receive abortion information raises the issue of gender-based limitations. It might be argued that mature male minors do not need such information. But while gender is not a proscribed classification like race subject to strict judicial scrutiny, United States v. Virginia, 518 U.S. 515, 532-3 (1996), it is sufficiently suspect to require of the state an "exceedingly persuasive justification." Id. at 531. EFF believes that denying mature male minors access to abortion information would fail intermediate scrutiny. See Craig v. Boren, 429 U.S. 190, 197 (1976) ("to withstand constitutional challenge. . . classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives"). Moreover, such gender-based discrimination might be statutorily barred under Title IX of the Education Amendments of 1972. 20 U.S.C. ¤ 1681(a) (no person shall "be subjected to discrimination under any education program" receiving federal funds "on the basis of sex").

A harder case is minors' right to receive information about religious beliefs. As discussed above, schools often accommodate parental wishes regarding their children's exposure to beliefs with which parents disagree on religious grounds. The Court has recognized both the right of parents to remove their children from school, as against compulsory education requirements,Wisconsin v. Yoder, 406 U.S. 205 (1972). and the rights of parents and children as to free exercise of religion.West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 629-31 (1943) (Jackson, J.) (emphasizing that the religious exercise rights being asserted belong to the children as well as the parents, and reflect the children's own beliefs); Pierce v. Soc'y of Sisters, 268 U.S. 510, 520 (1925) (parents have liberty interest in choosing whether to send their children to public or parochial schools). It has also recognized that the family is not beyond regulation in the public interest, even in the face of a religious exercise claim.Prince v. Massachusetts, 321 U.S. at 166 (state may limit parents' religious and parental rights by, among other requirements, requiring school attendance so that parents may not make "martyrs" of their children); Id. at 171 (Murphy, J., dissenting) (recognizing "genuine religious" beliefs of nine-year-old); In re Green, 292 A.2d 387, 392 (Pa. 1972) (remanding for inquiry into teenage patient's views regarding mother's religious objection to blood transfusions). But the Court has not addressed the issue of whether the state should accommodate the religious preferences of parents whose children do not share their religious beliefs.See Yoder, 406 U.S. at 241-3 (Douglas, J., dissenting in part) (noting that even for a youth, religion is a matter of individual conscience); id. at 245 (asserting that "it is the future of the student, not the future of the parents, that is imperiled"); id. at 244 (arguing that "the children [are] entitled to be heard").

Given these limits on blocking in schools, the case for blocking in libraries is even weaker. Libraries are "the quintessential locus of the receipt of information" in our society.Kreimer v. Bureau of Police, 958 F.2d 1242, 1255 (3d Cir. 1992). In Pico, even the dissenters took the view that while school libraries had special characteristics, public libraries were intended "for freewheeling inquiry."Pico, 457 U.S. at 915 (Rehnquist, J., dissenting). Indeed, the dissents partly justified restrictions on receipt of information in school libraries because public libraries were an adequate alternative.Id. at 892 (Burger, C.J., dissenting); Id. at 915 (Rehnquist, J., dissenting) ("The books may be borrowed from a public library").

Conclusion

The debate over minors' access to Internet speech has largely been framed in terms of regulatory "spillover" effects on adult rights to speak and to read. This framing effectively concedes that the state generally has a legitimate and strong interest in controlling minors' access. Ginsberg and Reno, however, demonstrate that the government interest is significantly derivative of parental choice about their children's exposure, while traditional school practice demonstrates that schools often accommodate parental wishes. It follows that technological means of regulating minors' Internet access must also accommodate meaningful choice by parents as to what their children can read.

Equally important, the debate over minors' access has all but ignored minors' own rights. We have shown, however, that mature minors have signifcant constitutional rights that can take trump parental control in areas like abortion and contraception. At the very least, mature minors must be recognized as having a strong First Amendment right to receive information relevant to the exercise of these substantive rights.

[1] A proverbial choice between equally dreadful alternatives.

[2] For brevity's sake, we will in the remainder of this essay refer to public schools as "schools" and public libraries as "libraries."

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