The Volokh Conspiracy - ACLU Sues Library for Allegedly Blocking Access to Second Amendment Foundation Site

(among others). The the ACLU's Complaint claims that the libraries are using filters to block certain material, and refusing to manually unblock the material on the user's request:

[T]he NCRL has configured its SmartFilter software to block Web sites in the following categories, or in categories equivalent to the following categories: Alcohol, Anonymizers, Chat, Criminal Skills, Dating/Social, Drugs, Extreme, Gambling, Game/Cartoon Violence, Gruesome Content, Hacking, Hate Speech, Malicious Sites, Nudity, P2P/File Sharing, Personal Pages, Phishing, Pornography, Profanity, School Cheating Information, Sexual Materials, Spyware, Tobacco, Violence, Visual Search Engine and Weapons. [This is necessarily a tentative allegation, based on the ACLU's current information and belief; presumably discovery during litigation will confirm or correct this.]

Plaintiff Sarah Bradburn has attempted to use computers maintained by the NCRL to conduct Internet research --- particularly regarding alcohol and drug-addiction topics --- in connection with academic assignments. When Ms. Bradburn tried to access material and obtain information relating to youth tobacco usage, the Internet filters that the NCRL had installed on its computers prevented her from doing so....

Plaintiff Pearl Cherrington is a professional photographer, her work consisting mostly of landscapes and outdoor scenes. She has attempted to use computers maintained by the NCRL to conduct Internet research and obtain information regarding art topics -- including art galleries that might be interested in displaying her work. She has also attempted to use NCRL computers to conduct Internet research and obtain information about health topics. Her ability to conduct her research and obtain information via the Internet has been restricted by the filters that the NCRL has installed on its computers....

Plaintiff Charles Heinlen has attempted to use computers maintained by the NCRL to conduct Internet research and obtain information on topics relating to firearms. His ability to conduct research and access information related to firearms has been restricted by the Internet filters that the NCRL has installed on its computers. The filters have also denied Mr. Heinlen access to various dating sites, publications such as Soldier of Fortune Magazine (www.sofmag.com), the Web log (or "blog") that he maintains at www.myspace.com, and photographs embedded in commercial emails that are sent to his Hotmail and Yahoo! email accounts....

One of the publications that Plaintiff SAF sponsors is Women & Guns, a magazine with its own Web site, located at www.womenandguns.com. Women & Guns is written and edited by women, for women. It covers topics such as self-defense, personal protection, recreational shooting, new products and legal issues. Women & Guns' Web site has been blocked by the Internet filters that the NCRL has installed on its computers. The information contained in Women & Guns is protected by the First Amendment of the Unites States Constitution and by Article I, Section 5 of the Washington State Constitution. Because the NCRL's Internet filters have blocked access to www.womenandguns.com on the NCRL's computers, SAF has been prevented from communicating with Internet users in North Central Washington who rely on public library computers for Internet access.

Whether libraries have a First Amendment duty to disable filters on patron request is an unsettled question; the Court's United States v. American Library Ass'n (2003) left the matter unresolved. The ACLU's Web page also says that "the U.S. Supreme Court has interpreted the [federal library funding law that requires some filtering out of sexually explicit material] to mean that libraries should disable those filters upon the request of an adult," but in my view that's an overreading of ALA. Those who want to read my quick summary of the current state of the Supreme Court's law of government-funded speech can click below. (Note that the summary is from the relevant chapter of my First Amendment textbook; it is necessarily sketchy, since it's aimed at students who will read the summary and then [supposedly] read the cases that the summary refers to.)

(Show summary.)

Rules:

1. The government itself can say whatever it wants to (setting aside possible Establishment Clause constraints on pro- or anti-religious speech), even if this favors one viewpoint over another.

2. The government has largely unlimited power to control what is said in its official organs (newspapers, radio broadcasts, and the like) or in organs that it officially endorses, even if this control is exercised in a viewpoint-based way.

3. The government may also communicate its message by paying private parties to convey the message; and it may require that the payment be used only for the speech that it wants communicated (even if the restriction is viewpoint-based). Rust v. Sullivan (1991).

— But this is limited to situations where the program is genuinely "designed ... to promote a governmental message" (such as the "programmatic message recognized in Rust") rather than just "to facilitate private speech," Legal Servs. Corp. v. Velazquez (2001)….

6. Also, the government may not impose viewpoint-based restrictions when it "create[s] a program to encourage private speech" that "indiscriminately 'encourage[s] a diversity of views from private speakers'" (NEA v. Finley (1998); see also Rosenberger v. Rector (1995); Velazquez) -- for instance, when it offers a subsidy to any student group that wants to start its own non-university-endorsed newspaper.

— These programs may be treated as designated public fora, or at least nonpublic fora (where there would still be a viewpoint-neutrality requirement).

— Rosenberger and Velazquez are the classic examples of this; Rust and Finley are the classic examples of the opposite; when deciding whether a program is seen as constituting "government speech" or as "encourag[ing] a diversity of views from private speakers," you should compare and contrast with these cases.

7. What if the government creates a program to encourage private speech, but the program allocates scarce resource on the basis of some judgment of "quality," e.g., the artistic excellence judgment in Finley, rather than "indiscriminately" to an entire class of speakers (as in Rosenberger)?

— The Court suggests that "invidious viewpoint discrimination" in this context may be impermissible, but the government may certainly discriminate in part based on "decency and respect," and the government may "selectively fund a program to encourage certain activities it believes to be in the public interest."

— What "invidious viewpoint discrimination" means is not well-defined, though perhaps future cases will clear it up. For now, all we know from Finley is that a preference for "decency and respect" is not invidious viewpoint discrimination, but an attempt to "suppress[] ... dangerous ideas" probably would be.

(Hide.)

Nonetheless, while the ACLU's First Amendment argument is far from an obvious winner, the case is important and interesting (and will be even more so if it ends up leading to an appellate decision, rather than just settling). And it's good that the ACLU is exposing such practices on the library's part, practices that strike me as bad service to Washington residents, even if they are ultimately found to be constitutionally permissible.

	[Eugene Volokh, November 17, 2006 at 12:47pm] Trackbacks ACLU Sues Library for Allegedly Blocking Access to Second Amendment Foundation Site (among others). The the ACLU's Complaint claims that the libraries are using filters to block certain material, and refusing to manually unblock the material on the user's request: [T]he NCRL has configured its SmartFilter software to block Web sites in the following categories, or in categories equivalent to the following categories: Alcohol, Anonymizers, Chat, Criminal Skills, Dating/Social, Drugs, Extreme, Gambling, Game/Cartoon Violence, Gruesome Content, Hacking, Hate Speech, Malicious Sites, Nudity, P2P/File Sharing, Personal Pages, Phishing, Pornography, Profanity, School Cheating Information, Sexual Materials, Spyware, Tobacco, Violence, Visual Search Engine and Weapons. [This is necessarily a tentative allegation, based on the ACLU's current information and belief; presumably discovery during litigation will confirm or correct this.] Plaintiff Sarah Bradburn has attempted to use computers maintained by the NCRL to conduct Internet research --- particularly regarding alcohol and drug-addiction topics --- in connection with academic assignments. When Ms. Bradburn tried to access material and obtain information relating to youth tobacco usage, the Internet filters that the NCRL had installed on its computers prevented her from doing so.... Plaintiff Pearl Cherrington is a professional photographer, her work consisting mostly of landscapes and outdoor scenes. She has attempted to use computers maintained by the NCRL to conduct Internet research and obtain information regarding art topics -- including art galleries that might be interested in displaying her work. She has also attempted to use NCRL computers to conduct Internet research and obtain information about health topics. Her ability to conduct her research and obtain information via the Internet has been restricted by the filters that the NCRL has installed on its computers.... Plaintiff Charles Heinlen has attempted to use computers maintained by the NCRL to conduct Internet research and obtain information on topics relating to firearms. His ability to conduct research and access information related to firearms has been restricted by the Internet filters that the NCRL has installed on its computers. The filters have also denied Mr. Heinlen access to various dating sites, publications such as Soldier of Fortune Magazine (www.sofmag.com), the Web log (or "blog") that he maintains at www.myspace.com, and photographs embedded in commercial emails that are sent to his Hotmail and Yahoo! email accounts.... One of the publications that Plaintiff SAF sponsors is Women & Guns, a magazine with its own Web site, located at www.womenandguns.com. Women & Guns is written and edited by women, for women. It covers topics such as self-defense, personal protection, recreational shooting, new products and legal issues. Women & Guns' Web site has been blocked by the Internet filters that the NCRL has installed on its computers. The information contained in Women & Guns is protected by the First Amendment of the Unites States Constitution and by Article I, Section 5 of the Washington State Constitution. Because the NCRL's Internet filters have blocked access to www.womenandguns.com on the NCRL's computers, SAF has been prevented from communicating with Internet users in North Central Washington who rely on public library computers for Internet access. Whether libraries have a First Amendment duty to disable filters on patron request is an unsettled question; the Court's United States v. American Library Ass'n (2003) left the matter unresolved. The ACLU's Web page also says that "the U.S. Supreme Court has interpreted the [federal library funding law that requires some filtering out of sexually explicit material] to mean that libraries should disable those filters upon the request of an adult," but in my view that's an overreading of ALA. Those who want to read my quick summary of the current state of the Supreme Court's law of government-funded speech can click below. (Note that the summary is from the relevant chapter of my First Amendment textbook; it is necessarily sketchy, since it's aimed at students who will read the summary and then [supposedly] read the cases that the summary refers to.) (Show summary.) Rules: 1. The government itself can say whatever it wants to (setting aside possible Establishment Clause constraints on pro- or anti-religious speech), even if this favors one viewpoint over another. 2. The government has largely unlimited power to control what is said in its official organs (newspapers, radio broadcasts, and the like) or in organs that it officially endorses, even if this control is exercised in a viewpoint-based way. 3. The government may also communicate its message by paying private parties to convey the message; and it may require that the payment be used only for the speech that it wants communicated (even if the restriction is viewpoint-based). Rust v. Sullivan (1991). — But this is limited to situations where the program is genuinely "designed ... to promote a governmental message" (such as the "programmatic message recognized in Rust") rather than just "to facilitate private speech," Legal Servs. Corp. v. Velazquez (2001)…. 6. Also, the government may not impose viewpoint-based restrictions when it "create[s] a program to encourage private speech" that "indiscriminately 'encourage[s] a diversity of views from private speakers'" (NEA v. Finley (1998); see also Rosenberger v. Rector (1995); Velazquez) -- for instance, when it offers a subsidy to any student group that wants to start its own non-university-endorsed newspaper. — These programs may be treated as designated public fora, or at least nonpublic fora (where there would still be a viewpoint-neutrality requirement). — Rosenberger and Velazquez are the classic examples of this; Rust and Finley are the classic examples of the opposite; when deciding whether a program is seen as constituting "government speech" or as "encourag[ing] a diversity of views from private speakers," you should compare and contrast with these cases. 7. What if the government creates a program to encourage private speech, but the program allocates scarce resource on the basis of some judgment of "quality," e.g., the artistic excellence judgment in Finley, rather than "indiscriminately" to an entire class of speakers (as in Rosenberger)? — The Court suggests that "invidious viewpoint discrimination" in this context may be impermissible, but the government may certainly discriminate in part based on "decency and respect," and the government may "selectively fund a program to encourage certain activities it believes to be in the public interest." — What "invidious viewpoint discrimination" means is not well-defined, though perhaps future cases will clear it up. For now, all we know from Finley is that a preference for "decency and respect" is not invidious viewpoint discrimination, but an attempt to "suppress[] ... dangerous ideas" probably would be. (Hide.) Nonetheless, while the ACLU's First Amendment argument is far from an obvious winner, the case is important and interesting (and will be even more so if it ends up leading to an appellate decision, rather than just settling). And it's good that the ACLU is exposing such practices on the library's part, practices that strike me as bad service to Washington residents, even if they are ultimately found to be constitutionally permissible.