Viewpoint Discrimination in K-12 School Library Filtering

As I’ve said before, the Supreme Court has never decided whether K-12 schools may remove books from school libraries based on their viewpoints, or may filter out Web sites based on their viewpoints. The Court’s cases dealing with this question, Board of Ed. v. Pico and U.S. v. American Library Ass’n were badly splintered and provided basically no majority on the subject.

Pico, for instance, split 4-4 on the book removal issue, with the deciding vote (Justice White) expressing no opinion and sending the case down for more factfinding. (“The plurality seems compelled to go further and issue a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point. When findings of fact and conclusions of law are made by the District Court, that may end the case.”) Likewise, ALA yielded no useful conclusion.

This makes yesterday’s Parents, Families & Friends of Lesbians & Gays, Inc. (PFLAG) v. Camdenton R-III School Dist. (C.D. Mo. Jan. 15, 2012) especially interesting: The court issued a preliminary injunction against a school district’s use of a filter that apparently generally filtered out pro-homosexuality sites — including ones that weren’t sexually explicited — but not anti-homosexuality sites. (“URL Blacklist systematically allows access to websites expressing a negative viewpoint toward LGBT individuals by categorizing them as ‘religion’, but filters out positive viewpoints toward LGBT issues by categorizing them as ‘sexuality’.”) The court held that government’s continued use of this filter, especially given the availability of other filters that did better both at blocking outright porn and at not blocking commentary on homosexualiy, was likely viewpoint discriminatory and therefore unconstitutional, which led it to issue a preliminary injunction. The standard for issuing such an injunction was (in part) that plaintiffs showed “a ‘fair chance’ that [their claim] will succeed on the merits”; but the court’s reasoning suggests that the court is even more persuaded on the merits than that.

This might prove to be the correct result, but the court’s reasoning strikes me as conclusory. Here, as best I can tell, is the heart of the court’s analysis:

Camdenton’s internet access system in its library is neither a traditional nor a designated public forum. United States v. Am. Library Ass’n (“ALA”), 539 U.S. 194, 205 (2003) (plurality opinion) (internal quotes omitted). It is a nonpublic for[um]. “Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and viewpoint neutral.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 806 (1985). But “the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.” Id.

Yet the statement that the system “is a nonpublic forum” is unsupported. School-provided Internet access indeed isn’t a traditional or designated public forum, but that just means that it’s either a nonpublic forum or not a forum at all. This last category, described in Arkansas Educ. Television Comm’n v. Forbes, involves situations where the government chooses to use its property to present speech that it likes and not speech that it dislikes. A government-run public television station, for instance, may air anti-racism programs but not pro-racism programs without violating the First Amendment; a school-provided bulletin board can display messages the school favors but not ones the school opposes; the government may accept for park display monuments that celebrate some things but not others.

Now the scope of this not-a-forum-at-all doctrine is not clear, and it might be that when it comes to government provision of access to a vast range of others’ material, in a situation where few people would see the government as endorsing all that material, the “nonpublic forum” category — with its prohibition on viewpoint discrimination — is more fitting than a “not a forum at all” category. But that conclusion has to be supported; as best I can tell, the district court instead just asserts it.

The district court does cite to Pratt v. Indep. School. Dist. No. 831 (8th Cir. 1982), which held unconstitutional the exclusion of material even from a school curriculum — given this, exclusion of material from library access would be even more clearly unconstitutional. But Pratt (which strikes me as very badly wrong) seems to me not to survive Hazelwood School Dist. v. Kuhlmeier (1988), which held that the government had very broad control over school curriculum. That control (controversially, though I think correctly) was held to include control over a student newspaper produced as part of a journalism class. Even more clearly, it would include control over what movies are shown as part of the school curriculum, the issue in Pratt. So while Hazelwood doesn’t dispose of the library filtering question, since it’s not clear whether it should be treated as a “curriculum” matter, Hazelwood does mean that Pratt is no longer a viable precedent.

Finally, one twist: According to the court in PFLAG, the school denied that it was engaged in viewpoint discrimination, and thus didn’t argue that the viewpoint discrimination was justifiable. “Camdenton has repeatedly said that its goal is not to protect its students from websites expressing a positive view toward LGBT individuals, or that such websites interfere with the requirements of appropriate discipline. Rather, Camdenton has argued that its internet-filter system does not discriminate based on viewpoint.” So perhaps the case could be decided just on that ground — but the court’s reasoning, as I understand it, goes further and says that all viewpoint discrimination in library filtering is presumptively unconstitutional, whether or not it is a deliberate and substantively defended decision on the school’s part. The case thus strikes me as an interesting and important decision, though vulnerable on the grounds I mentioned.