Last July, the city council of Hazelton, Pennsylvania passed several ordinances aimed at ridding the city of illegal immigrants, by penalizing employers who hire them and landlords who provide them with homes.  The ordinances were, in part, responses to an increase in violent crime, which town officials blamed on immigration. 

         The ACLU filed suit in federal court; a two week trial in the case concluded last week, and the city’s new rules are suspended pending the judge’s ruling, expected in May or June.  The closely watched case, Lozano v Hazleton, is one of several similar lawsuits recently filed by the ACLU, which reports that more than 80 cities and towns have passed anti-immigrant laws like the ordinances in Hazelton.

         Protesting the scape-goating of immigrants, ACLU attorneys raised numerous constitutional and statutory issues in the Hazelton case, including due process and equal protection claims; but the ACLU primarily argued that the local, anti-immigrant ordinances were pre-empted by federal law.  “Immigration is a federal responsibility and allowing every city and town across American to set their own immigration policies would create a dysfunctional set of dueling rules and regulations,” Vic Walczak, the lead ACLU attorney in the case asserted. The ACLU stressed that the Constitution locates the power to regulate immigration primarily in the federal government and that the Hazelton ordinances conflicted with numerous federal laws.

         In other words, the ACLU has framed this as a federalism case (a case involving the constitutional division of power between federal and state governments.)  But federalism claims often reflect political calculations, not constitutional principles.   Across the political spectrum, people tend to favor states rights when they support the particular state laws at issue and favor federal power, when they support the federal laws.

         So the Hazelton case prompts a question: if a state or locality enacted an immigration law designed to expand (not contract) the rights or services available to undocumented immigrants, would the ACLU oppose it too, arguing that regulation of immigration was an exclusive federal responsibility? Given the organization’s strong immigrant rights program (which I support), it’s hard to imagine the ACLU opposing a state or local law considered pro-immigrant, regardless of concerns about federalism.
   
         Consider this case:  in 2002, the ACLU registered its strong opposition to a rule issued by the Immigration and Naturalization Service that prohibited state and local facilities from releasing information about INS detainees in their custody.  The ACLU’s letter of protest relied primarily on the claim that the new rules were issued in violation of federal administrative law, but it also noted that federal law in this case did not preempt state authority.

         The Hazelton case and the 2002 controversy over INS rules are easily distinguished, and I’m not suggesting that the ACLU acted or argued improperly in either of them.  I am simply pointing out the pitfalls and politics of federalism arguments.  Take the gay marriage debate.  The federal government enacted an anti-gay marriage law in 1996 (the Defense of Marriage Act, or DOMA,) so naturally proponents of same-sex marriage are state's rights proponents, when marriage is at issue.  Gay rights and civil liberties groups worked hard to defeat a federal constitutional amendment that would have barred the states from legalizing same sex marriage.

         One result of the differences in state and federal law is a two tiered system of marriage in Massachusetts, which is arguably the sort of “dueling” legal scheme that the principle of preemption is supposed to avoid.   In Massachusetts, gay couples enjoy rights accorded all married couples by state law, but they do not enjoy the rights extended to heterosexual couples under federal law, like social security benefits.  In other words, because of the restrictions in federal law, Massachusetts can only offer separate and unequal marriages to gay couples.

         Of course, as a practical matter, a lesser form of marriage for gay people is preferable to no form of marriage at all.   And, as a practical matter, if the legal situation were reversed, with federal law favoring gay marriage and state law opposing it, you can be sure that pro-marriage groups would no longer favor state’s rights; instead they’d argue that state bans on gay marriage were preempted by federal law.  And who could blame them?  The “principle” of federalism is no match for the politics.

         The ACLU is no stranger to hypocrisy (to facilitate fundraising, it has voluntarily pledged to comply with federal blacklisting law that it otherwise opposes;) but it is not guilty of the inconsistencies that James Huffman imagines in his National Law Journal column. The ACLU’s criticism of Charles Stimson’s attacks on lawyers defending Guantanamo detainees was not at all inconsistent with its previous expressions of concern about the record of then Supreme Court nominee John Roberts.

         Put aside, for the moment, the factual elisions in Huffman’s column; Stimson’s comments about Guantanamo lawyers and the ACLU’s comments about Roberts are simply not analogous. Stimson was a government official who attacked the patriotism and ethics of lawyers representing people whom the government had summarily detained; he even urged that law firms involved in defending detainees be blackballed. The ACLU is a civil liberties organization (representing over a half million Americans) that expressed concerns about the civil liberties record of a Supreme Court nominee, who seemed poised to tip the balance of the Court. ACLU officials did not "impugn" Roberts, as Stimson impugned the integrity of Guantanamo lawyers; they raised serious questions (which they urged the Judiciary Committee to raise) about his stance on civil liberties.

         Huffman’s account of the ACLU’s opposition to Roberts is a little misleading. In fact the ACLU did not formally oppose Roberts as Huffman states, although it stressed concerns about his views on rights and liberties, after after carefully examining his record. The ACLU issued a comprehensive, 45 page report on Roberts’ record, as a judge, a Deputy Solicitor General, and a lawyer in private practice. That report was submitted to the Senate Judiciary Committee, along with a 10-page letter to Senators Specter and Leahy -- the letter that Huffman cites but, tellingly, does not supply (although it is posted on the ACLU website.)

The ACLU prides itself, perhaps more than any other organization, on the importance of standing on principle. But James L. Huffman, of Lewis & Clark Law School, has an arguable case for accusing the leading civil liberties organization of a glaring insistency this week in his op-ed on “Using Clients to Impugn Lawyers” in this week’s National Law Journal.

Huffman points out that Steven Shapiro, ACLU’s national Legal Director, in a January 12, 2007 statement, criticized now-former Deputy Assistant Secretary of Defense Charles D. “Cully” Stimson for his blast at major law firms for donating free legal services on behalf of detainees at Guantanamo Bay. Stimson, you will recall, urged corporate clients of large and prestigious law firms to consider whether they should use the services of firms that represent suspected “terrorists”, thereby casting aspersions on the patriotism of the firms and their lawyers and seeming to call for a boycott of those firms by corporate America. When virtually all sectors of the legal profession and countless other groups blasted Stimson for his attack on a fundamental basis of our legal system – that even the seeming worst among us is entitled to legal representation – Stimson apologized but, in the end, had to resign. (Good riddance.)

            Huffman does not defend Stimson, but he scolds the ACLU for what he deems its inconsistency in its earlier letter to Senators Patrick Leahy and Arlen Specter, opposing the confirmation of now-Chief Justice John G. Roberts, Jr. The ACLU’s objection was based, complains Huffman, on Roberts’ “briefs and appearances for Associated General Contractors in challenges to federal affirmative action programs and his successful argument before the Supreme Court that a federal statute protecting the privacy of student records was not privately enforceable.”  The ACLU, Huffman writes, should not have criticized Stimson’s tactic of confusing the lawyers at Guantanamo with their alleged-terrorist clients, while itself identifying Roberts with the clients and causes he represented when in private practice.

            Even though one can come up with distinctions between the two situations, Huffman seems to have a point. If the lawyers at Guantanamo should not be smeared by their clients’ alleged deeds, then perhaps a lawyer in private practice, nominated to high judicial position, should not be too closely identified by the positions taken by his clients in court.  The ACLU, which has defended more than its fair share of seedy clients in pursuit of important social and legal values, should know better than to tar a legal mind because of the causes he or she represented in court. All of us, it seems, including at times the ACLU, need to be reminded of the virtues of consistency – what’s sauce for the goose is sauce for the gander.

By Wendy Kaminer

“A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”1939 ruling

These are among the most disputed words in the U.S. Constitution. People who support gun control, or prohibition, generally argue that the Second Amendment conditions the right to bear arms on service in a state militia, merely establishing a “collective” right.  They focus on the prefatory phrase:  “A well-regulated militia being necessary to the preservation of a free state…” Opponents of gun control, or prohibition, argue that the Second Amendment, like other provisions in the Bill of Rights, guarantees an individual right – the right to bear arms independent of service in a militia.  They argue that the prefatory reference to state militias offers a reason for securing the right to bear arms, not a condition for exercising it.   (I’ve addressed this debate at some length here and here.

The Supreme Court has never clearly ruled on this collective vs. individual rights debate, but it may soon get the chance.  (The Court’s previous ruling, on the Second Amendment, U.S. v Miller, is about as open to interpretation as the Amendment itself.)  On March 9^th the U.S. Court of Appeals for the District of Columbia issued a ruling long sought by libertarians and other advocates of individual gun rights, and long feared by advocates of stringent gun control.  With one dissent, a three judge panel ruled that the Second Amendment does indeed confer an individual right to keep and bear arms, striking down the District of Columbia’s virtual ban on gun ownership, which extended even to guns kept in the home for self-defense.

 Writing for the majority, Judge Laurence Silberman reviewed the scholarly debate about the Founder’s intent and the meaning of the Second Amendment today. As Judge Silberman observed, if the right to bear arms was intentionally conditioned on militia service, if its sole purpose was insuring the survival of state militias as checks on federal power, then it is essentially “dead letter” today -- as opponents of gun rights like to believe. 

Indeed, for many years the Second Amendment was an effective anachronism; it may have been the favorite constitutional provision of right-leaning scholars and NRA members, but it was generally slighted by legal scholars and the courts, as well as most liberal civil libertarians.  The ACLU has long treated the Second Amendment as an irrelevancy, siding with proponents of strict gun control who insist that the Constitution establishes only a collective right to bear arms in a state militia.  (ACLU policy provides, in part, that “the individual’s right to bear arms applies only to the preservation or efficiency of a well-regulated militia.  Except for lawful police and military purposes, the weapons by individuals are not constitutionally protected.”)

This “collective rights” position lost some legitimacy in recent years, however, even among liberals.  In 1989, University of Texas law professor Sanford Levinson revitalized the gun rights debate with an influential law review article “The Embarrassing Second Amendment.”  Levinson, a liberal, “card-carrying” ACLU member, challenged the orthodox liberal view of the Second Amendment as a guarantee of effectively defunct, collective rights.  This was not “a wholly implausible reading,” Levinson observed; but “one might ask why the Framers did not simply say something like ‘Congress shall have no power to prohibit state-organized and directed militias.’” 

The most compelling argument in favor of individual gun rights is contextual:  The Bill of Rights protects individuals from abuses of government power, framing some freedoms as fundamental and inviolate: the right to assemble, the right to speak, the right to keep law enforcement from invading your home without a warrant, and fair trials rights, (among others) are all conferred upon individuals.  Or so the ACLU would argue – except when the right to own a gun is at issue.  Years ago I was unable to persuade the ACLU of Massachusetts merely to establish a committee to consider the nature of Second Amendment rights.

The opposition of liberal civil libertarians to individual gun rights may reflect some ideological inconsistency, but it’s not hard to understand culturally or politically.  Liberals tend to treat gun rights the way social issue conservatives treat the right to read pornography.   They tend not to empathize with the visceral sense of gun owners that the right to bear arms is an essential component of individual autonomy.  Instead, they regard gun rights as insuperable obstacles to gun control.

That is an arguably faulty assumption, reflecting the stereotypical view of gun owners as phallo-centric maniacs irrevocably opposed to gun regulations.  Some advocates of gun rights argue that acknowledging a basic, individual right to bear arms would actually ease opposition to measured gun control – which many gun owners now regard (not unreasonably) as incremental steps toward prohibition.   Given the sorry history of efforts to prohibit conduct in which millions of Americans indulge, advocates of regulating guns might consider the recognition of Second Amendment rights by the Court of Appeals less a setback than an opportunity.

Having spent decades fighting in the trenches on the front lines of the battle over campus censorship, and having co-founded a nonprofit that seeks to remedy these widespread violations of academic freedom, I can vouch for the fact that the spirit of censorship is more alive in higher education, among administrators and faculty members, than anywhere else in our society. These folks operate on the dubious theory that in order to protect members of “historically disadvantaged groups,” it is necessary to censor any words or thoughts that might lessen their “self-esteem” or otherwise “harass” them. It is as demeaning and destructive to members of these groups as it is to free speech and academic freedom. And the way these groups are defined, there is hardly anyone who doesn’t arguably fall into one or another. We are all, alas, vulnerable to insult. What a surprise!

            This disturbing trend is mostly limited to academics in the humanities — English, history, social science, or "gender and race studies" departments. It is unusual to see professors of the hard sciences succumbing to this culture of censorship. The late, great astronomer Carl Sagan explained the reason for this in a brilliant lecture that he gave to the ACLU of Illinois some years before his untimely death in 1996. The scientific method, he said, is very much akin to the First Amendment.

Truth in science is dependent upon a process where error is detected by the unfettered search for truth, and where no idea is dismissed by fiat, but rather is either proven or disproven by uninhibited exploration and solid evidence — i.e. “the free marketplace of ideas” that we hear so much about but rarely, if ever, see. This is why great science has historically been achieved in the freest societies, rather than in totalitarian ones.

            Unfortunately, Tufts physics professor Gary Goldstein apparently has gotten in touch with his inner totalitarian and now feels that purveyors of "offensive" (or challenging?) ideas should be denied from having the stage. That isn't exactly a formula for winning the Nobel Prize in Physics, nor in Academic Freedom.

         Harvey chides me for “glossing over” the “rights” of parents who sued the Lexington school district for exposing their elementary kids to sympathetic books about gay families. They lost their case in federal court, when Judge Wolf dismissed their federal constitutional claims and their claims under state law. As Harvey notes, the parents are free nonetheless to press their state law claims in state courts: these claims were dismissed without prejudice –- not because this is a hard case, as Harvey suggests -- but because state courts are the appropriate arbiters of novel state statutory claims. Judge Wolf also suggested that disagreements between individual parents and their communities over controversial public school curricula would be best resolved by the political process, (or mediation) not the courts.

         What are the statutory rights of parents in this case? As Judge Wolf observed, Massachusetts law provides an opt out for parents who do not want their kids exposed to sex ed in the public schools: They must be given prior notice and a chance to exempt their children from curriculum that “primarily involves human sexual education or human sexuality.” Harvey thinks that a book portraying a married, same-sex couple sympathetically might well fall into this category of “human sexual education.” I disagree, but it’s sweet that he still associates marriage with sex.

           Wendy Kaminer too readily glosses over the rights of the parents who lost their case against the Lexington school authorities in early March when United States District Judge Mark L. Wolf dismissed their complaint seeking to exempt their elementary school children from a curriculum promoting tolerance of homosexuality in general and same-sex marriage in particular.

            Judge Wolf was correct in dismissing the lawsuit on the ground that the program did not interfere with the parents’ freedom, under the First Amendment’s religious liberty clause, to supervise their children’s religious education. It may be true, as Judge Wolf observed, that the parents’ religion contains an injunction against gay sex and same-sex marriage, but since tolerance of gay sex and marriage is the official policy of Massachusetts such education must be seen as the kind of civic education that has been the province of schools throughout the ages. Wolf, a judge more literate than most, quoted Ralph Waldo Emerson’s journal: “I pay the school master, but ‘tis the school boys that educate my son.”

            But there was another half of the case that Judge Wolf did not decide and that Kaminer ignores. He told the parents to take it to the state courts because it involved the interpretation of a state statute. That statute, while it does not give a parent a right to veto portions of the state-mandated curriculum promoting same-sex conduct and marriage or any other controversial social or civic topic, does take the step – even though not required to do so by the Constitution – of requiring that parents be given notice and an opportunity to exempt their children from any curriculum that “primarily involves human sexual education or human sexuality issues.”

That statute may very well have given the parents a right to keep their kids out of that particular class. In this case, however, the Lexington school authorities did not notify the parents, because they took the dubious position that giving young children books about gay family life (in one book, King and King, two royals of the same gender married, kissed in the accompanying illustration, and lived happily ever after). Judge Wolf decided that, while the First Amendment did not give the parents the right to keep their children out of that particular class, the state courts should decide whether the statute gave the parents the right to be notified in advance and to keep their kids home. The Lexington school authorities, remarkably, took the position that classes on gay family life do not involve “human sexual education or human sexuality issues” and that they therefore were not required to give parental notice and an opportunity to skip the class.

The school authorities’ disregard for the statute is, at the very least, a highly debatable proposition. Put the shoe on the other foot: If the Lexington School Committee were controlled by a “traditional family values” majority that insisted on a class very different from the “diversity education” currently taught in Lexington, wouldn’t pro-gay rights parents want advance notice and an opportunity either to keep their kids home or to explain to the kids that they were being exposed to attitudinal education (which some might call indoctrination or even thought reform) that conflicts with their upbringing?

It’s not quite the easy case that my friend Wendy Kaminer makes it seem. It we are truly interested in tolerance, we need to extend it even to those people we view as intolerant. That’s what life in a truly diverse society requires.

         Last month, the religious right lost a local skirmish in the culture war when federal district court Judge Mark Wolf ruled that Lexington school officials did not violate the Constitution by distributing two books about gay families in a Lexington elementary school.  Wolf dismissed a case brought by 4 parents who regard homosexuality as sinful and argued that the effort to teach tolerance and respect for gay people and families interfered with their First Amendment rights to raise their children according to their own religious beliefs.  

         The offended parents had common sense as well as legal precedent against them: it’s hard to imagine how the public schools might function if every parent had a constitutional right to preview every book distributed to their children.  Parents have other options, as Judge Wolf, observed: they can seek political, not judicial solutions, by lobbying or trying to elect sympathetic school committees; they can enroll their kids in private religious schools or home school them.  

         Taking your child out of the public school system is a constitutional right.  Requiring public schools to teach your sectarian religious beliefs is an unconstitutional power.  That’s the implicit and essential lesson of Parker v Hurley.  Advocates of official, public school prayer or the teaching of creationism or abstinence only sex ed, among other articles of faith, have cleverly used the language of religious rights to disguise their demands for religious power.   The prohibition on official school prayer, for example, has long been cast as a violation of the right to pray – as if it included the right to subject captive audiences to publicly broadcasted prayer.  Students have never lost the right to pray.  What they lack is the power to impose their prayers on others.  The Lexington parents have not lost the right to control the religious education of their children.   They simply haven’t gained the power to control the religious education of their community.

           It is said that the history of war is written by the victor. But history written by governments, or by pressure groups, is notoriously unreliable. This is where scholars come in handy.

         It was with this in mind – not to mention that I’m currently litigating a case involving the censorship, from Massachusetts state curricular materials, of any dissident views on whether the Ottoman Turks committed a Genocide on their Armenian population during and after World War One – that I attended a lecture at Harvard on March 13^th by Guenter Lewy, professor emeritus of political science at University of Massachusetts Amherst. He lectured to a standing-room-only audience at the John F. Kennedy School, making a plea for the warring political camps – those insisting that the world accept the “genocide” label for the tragic deaths suffered by the Armenian population in that conflict, and those insisting that the tragedy did not rise to the level of genocide as international law defines the term – to allow scholars, rather than politicians and pressure groups, to resolve the dispute.

         In a world where, it seems, fundamentalism of all sorts has taken over, and where various fanatical political, religious, and ideological groups are all convinced that theirs is the only acceptable point of view (“denial of the Armenian Genocide” is being made a crime in various countries in Europe, advocating the position that it was a genocide can land one in the criminal dock in Turkey for the crime of “insulting Turkishness,” and in this country, Armenian-Americans are pressuring Congress to adopt their position, while those of Turkish ancestry want Congress to keep its nose out of it – as if the Congress is qualified to make such a judgment one way or the other.), Prof. Lewy’s plea seemed as quaint as it was urgent. The author of the recently published scholarly examination, The Armenian Massacres in Ottoman Turkey: A Disputed Genocide Prof. Lewy must have expected that he would be free, in giving a lecture at Harvard, from the warring ideological camps where the sides appear intent on resolving the question by political and power plays as well as by intimidation. Instead, Prof. Lewy was continually harangued by members of the audience more concerned with thrashing the guest lecturer than asking a legitimate question.

         The Q&A at Harvard likely would have unnerved a less confident scholar than Prof. Lewy. Many of the audience’s “questions” accused him of aiding and abetting genocide by refusing to accept the label preferred by certain pressures groups and governments. As audience members arose to tell how their relatives were murdered by the Ottoman Turks, Prof. Lewy calmly asserted that many died on both sides but that the “genocide” label must be the result of scholarly research, not pressure groups. Harvard must have had other experiences with this hot-button emotional topic, since a uniformed Harvard University Police officer stood at all times just a few feet from the lecturer, with a pistol visibly strapped into its holster. If governments should not write history, neither should mobs, I suppose. The “free marketplace of ideas” so often spoken of in free speech and academic freedom court opinions needs to be taken more seriously in some quarters.

   Given all the reasons to fear that the end might be near (global warming and the spectre of nuclear or biological terrorism to name just a few,) you might expect people to gain some sense of perspective about the “dangers” of free speech.  You would be wrong.

   Speech phobias are on the rise. They're partly related to sex phobias, and they partly reflect widespread liberal abandonment of civil liberty when it makes previously subordinated groups uncomfortable.  (Liberals often treat whatever they consider anti-gay or racist speech the way neo-puritans treat whatever they consider pornography.) Consider these recent cases:
   
    In Westchester, three 16-year-old high school girls were suspended for using the word “vagina” during a recitation of The Vagina Monologues after they had been warned not to use the V-word. The students were not censored, school officials claimed: they were punished for “insubordination.”
   
    In Santa Rosa California, a student was disciplined (a note was placed in her file) when she uttered the phrase “that’s so gay.”
The student, Rebekah Rice, a Mormon was being teased by her classmates about her religion and responded, “That’s so gay,” when asked if she had “10 moms.”  (Her parents are suing the school.) 
   
    In Merton College, Oxford (of all places) students have been also been chastised for using the term gay as an all purpose put-down, thereby creating “an uncomfortable atmosphere in college.” This ruling came in response to a complaint by a student who was offended by language used in a pool game: “You missed that shot you big gay.”  Students were officially warned not to “use terms like ‘gay” and ‘poof’ as joking insults.  Please be aware that using language like this is unacceptable and extremely offensive, even if you are not being intentionally malicious and think you are being ironic or witty in some way.”
   
    In Pasadena, California, a high school student was disciplined for wearing a tee-shirt expressing his religious objections to homosexuality.  (The federal court of appeals for the 9th circuit upheld the school’s power to censor anti-gay speech, in an aggressively anti-libertarian opinion that the Supreme Court subsequently vacated.
   
    In New York City, (supposedly a land of tolerance and freethought) the City Council unanimously approved a resolution declaring “a symbolic moratorium on the use of the n-word in New York City.” Civil libertarians who naively expected the ACLU to object must have been disappointed:  Donna Lieberman, Executive Director of the New York Civil Liberties Union shrugged off the resolution: “The Council is entitled to a point of view,” she explained.  “It would be an entirely different matter if the Council was considering a law to ban use of the n-word.”  If Lieberman’s statement seems reasonable to you, try to imagine her issuing a similar statement of support for a symbolic moratorium on flag-burning, criticism of the President, or use of the V-word.
  
    “Schools should be encouraging students to express themselves freely, not silencing dialogue." Lieberman stated, in her predictable defense of the Westchester Three.

   What is it about pornography that drives sane people crazy?  And by "people," I mean law enforcement agents, legislators, and judges, in particular.  This week the Supreme Court turned down an appeal from an Arizona man who was sentenced to a mandatory 200 years in prison merely for downloading child porn. Morton Berger was prosecuted for 20 seperate counts of sexual exploitation of a minor for possessing (and by possessing, they mean downloading) 20 images of child porn (and by child porn, they mean "any visial depiction in which a minor is enagged in exploitative exhibition or other sexual conduct.") Arizona law treats possession of each image as a seperate felony punishable by a mandatory minimum sentence of 10 years, without parole; the law also requires that sentences for posession be served consequently.

   So all the trial court had to do in this case was the math; the legislature left it no discretion to impose a sensible lesser sentence on Mr. Berger, a 57-year-old first offender now doomed to spend the rest of his life in prison for looking at 20 dirty pictures. The Arizona Court of Appeals, however, did have discretion to strike down this horrific sentence under the 8th Amendment's prohibiton of cruel and unusual punishment; but it managed not to do so, partly by focusing on each sentence of 10 years instead of the culmulative sentence of 200 years. The Supreme Court, which had previously upheld a 25 year to life sentence imposed on a repeat offender for stealing three golf clubs, was apparently unmoved by Mr. Berger's plight or its obligations to enforce the 8th Amendment, which now seems merely horatory.

   Meanwhile, in Connecticut, substitute teacher Julie Amero is awaiting sentencing for her conviction for risking injury to a child by exposing students in her middle school class to images of pornography on the web.  She could receive a 40 year prison sentence.   (Update: On June 6, 2007, Amero was granted a new trial.) Amero, who described herself as technophobic, claimed that the class computer was bombarded by ads for porn sites that she was unable to control.  Students testified that she tried to keep them away from the presumptively injurious images, not entirely successfully.

   The children have not been turned to salt yet by viewing pornography; but grown-ups' minds are turned to mush merely by the thought of it.