Burning the House

Filtering Software in Public Libraries…

  1. Let’s begin by reviewing some general legal principles regulating cyberspace
Of course, the basic principles are those underlying the First Amendment’s protection of expressive freedom. Government may not suppress ideas based upon their content, even if a majority of citizens favor the suppression. (One of my sons–in a somewhat elitist formulation–says that this limit on majoritarianism arises from the Founders recognition of the rule "Never underestimate the power of stupid people in large groups.")

The application of those basic principles to the new medium called cyberspace has been developed in a series of recent cases.


    1. CDA
      The first major challenge to free speech on the internet came with the passage of the Communications Decency Act. While there were many important aspects to that decision, the most important for purposes of our discussion today is the Court’s recognition that cyberspace is not a broadcast medium.


    2. That brings us to the Child Online Protection Act
      Politicians who need to demonstrate their opposition to sin and smut don’t give in easily.The Child Online Protection Act, sometimes lovingly referred to as "Son of CDA," imposed, among other things, a 50,000 fine and/or six months in jail for any commercial transmission of "material that is harmful to minors." Every day the material was available was to considered as a separate violation.

      Those challenging the Act argued that the affirmative defenses provided for–requiring the use of credit cards or other age verification–imposed an unwarranted and significant economic burden on speakers, and required loss of anonymity for users which would inevitably result in loss of business. (Give em your credit card and pretty soon you get mail from the Sado-Masochist Society, asking for money..)

      Important to note that, as with CDA, no one challenged the Act’s constitutionality with respect to obscenity or child pornography. Their illegality is unaffected by the mode of transmittal. Obscene pictures are obscene pictures whether downloaded or purchased in a plain brown wrapper.

      On February 1st of this year, the U.S. District Court for the Eastern District of Pennsylvania extended the temporary restraining order issued earlier, and enjoined enforcement of the Act pending a full decision on the merits. The law is highly unlikely to survive.

    3. Principles that have emerged
    1. There is no basis for qualifying the level of First Amendment protection
      accorded to this medium.

    2. Nonobscene sexual expression is protected
    3. Free speech rights of adults may not be reduced to allow them to read only what is acceptable for children. "Burning the house to roast the pig."
    4. Speech that is legally obscene remains unprotected & can be prosecuted. (Of course, you all know the definition of obscenity: if it turns you on, it’s obscene; if it turns me on, it’s erotic literature.)
    1. The cases have also focused upon the difficulty of censoring this particular medium.
    1. Country/state of origination
    2. Lack of any central control point–decentralization of Web
    3. Articles or sites that contain some materials that may be inappropriate, but are overall nonobjectionable or even valuable.

  1. Specific cases w/application to filtering
    1. Urofsky v. Allen: Virginia statute prohibited downloading of sexually explicit materials on a government owned computer without first obtaining approval. The court struck statute down, but worth noting that–as with CDA & progeny–the emphasis is all on sex. Presumably, the same computers could be used to download Nazi propaganda, or racist diatribes. This is not to suggest that censorship should be extended, merely to note that what is "pornographic" will vary, and that our culture’s seeming obsession with sex, and its widespread use of "morality" and "sexual conduct" as interchangable terms, may be more telling than the various self-appointed guardians of our morality realize. The case has limited relevance to libraries, since the statute was invalidated primarily as an impermissable restriction on employee rights. The case has, however, prompted scholarly criticism on the grounds that it should have been decided by reference to our First Amendment right to receive information–a basis that would have far more relevance to the issue of filtering.
    2. Mainstream Loudoun v. Loudoun County Library.
The Loudoun County Library passed a policy restricting its provision of internet access: no chat rooms, email or pornography; all computers equipped with site-blocking software; all computers within view of librarians. If any patron was caught accessing pornography & refused to stop, police would be called. The filtering software chosen was X-Stop, and it was undisputed that it had blocked at least some sites that contained no material that would have violated the policy.

In November of 1988, the Virginia District Court invalidated the policy, finding that it was not "narrowly tailored" because less restrictive means were available to accomplish the Library’s stated purposes, and those means had never been tested. The court–in a truly unhelpful paragraph–said that less intrusive means might include casual monitoring by staff, installation of filters on some, but not all, of the computers, or installation of software that could be turned off when adults used the computers, and concluded "we do not find that any of them would necessarily be constitutional if implemented. That question is not before us." So much for judicial guidance.

The court did say, unambiguously, that limiting the access of all patrons to materials deemed fit for juveniles is automatically overinclusive and thus unconstitutional. The policy was also held to constitute a prior restraint. And in language most important to those of you making such decisions, the court held it improper for the Library to entrust all preliminary blocking decisions to a private vendor, saying "a defendant cannot avoid its constitutional obligation by contracting out its decisionmaking to a private entity."

III.?Thus far, the Courts have not explicitly decided whether filtering is an acquisition decision or a removal decision, and it may be that they will not decide these cases in that sort of framework. But advocates of filtering are likely to argue that libraries make content-based decisions when they buy materials, and should be allowed to do so in this context. Opponents of filtering will undoubtedly draw parallels to demands for removal of books already on the shelves–demands that are almost never upheld.

IV.?There will undoubtedly be a lot more litigation on this issue. The ACLU is pursuing a number of cases at the trial court level across the country, and groups like "Family Friendly Libraries" can be counted on to continue their efforts to dictate policy through political intimidation and even litigation. Unless the issue is conclusively resolved in favor of filtering and against open access, I would suggest following the Library Bill of Rights, which states, in relevant part, "Materials should not be proscribed or removed because of partisan or doctrinal disapproval" and "A person’s right to use a library should not be denied or abridged because of origin, age, background or views."