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Library Internet Filtering and Free Speech Protections in Washington State:

I just learned that two weeks ago a federal district court certified a question to the Washington Supreme Court:

The Court finds it is necessary to ascertain Washington law with respect to a library's public computer Internet filtering because Article 1, § 5 [of the Washington Constitution] provides broader coverage from an overly broad governmental policy than the First Amendment. Washington law does not clearly define what role a state library’s mission and functions play in analyzing whether a library’s Internet-filtering policy violates Article 1, § 5. Therefore, the Court exercises its discretion to certify the state constitutional issue(s) to the Washington Supreme Court.

The district court opinion (Bradburn v. North Central Regional Library Dist. also has more about the factual submissions so far in this case, one of the few to have actually reached the courts. ("[T]here are only three reported cases addressing Internet filter use in public libraries: United States v. American Library Association, 539 U.S. 94 (2003); Miller v. NW Region Library Bd., 348 F. Supp. 2d 563, 569-70 (M.D.N.C. 2004); and Mainstream Loudoun v. Board of Trustees of the Loudoun County Public Library, 24 F. Supp. 2d 552 (E.D. Va. 1998).)

As you may recall, the American Library Association decision didn't resolve even the First Amendment question of whether a library could continue to block adult users' access to nonobscene Internet materials. Justice Kennedy's and Justice Breyer's concurrences stressed that the Court was deciding only whether the federal law mandating filters was constitutional so long as "on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay" (that's from the Kennedy opinion). In this case, the allegation is that librarians did not promptly unblock certain constitutionally protected material that was sought by adults, so even the First Amendment issue is still open -- as is the Washington Constitution issue that the district court is asking the Washington Supreme Court to explore.

DrGrishka (mail):
Here's my question.

I take it that a public library is not obligated to stock any particular set of books. I also take it that a public library is not obligated to participate in an inter-library loan program to get books that it does not carry. If both of those are true, why is the library then required to provide access to particular web pages?

It seems to me that it is an uncontroversial proposition that a library may choose not to carry pornographic (though not obscene) magazines. It seems to me that it could also choose not provide access to pornographic (though not obscene) websites.

In choosing how to restrict access to such websites, it seems to me that a library should be able to purchase whatever software it feels will do the job. If the software is not too sophisticated, it may well block more sites than necessary, but I don't think that that is tantamount to an unconstitutional restriction on speech. The restriction is merely incidental. I suppose it would be similar to a library choosing not to carry "men's magazines" and some clearinghouse lumping Hustler together with Maxim and then not sending either to the library. I think that that would be permissible.

Am I wrong?
10.14.2008 6:13pm
pete (mail) (www):
As much as I have researched filters I have yet to find one that does not block perfectly fine sites. I have had three different employer filters (corporate, university, and local government) that blocked sites that were harmless or that I needed to access for work related reasons. One of my favorites was the corporate one that at first blocked the website of another business that we were launching a joint venture with.

I do not know the law in Washington, but in Texas it is a class C misdemeanor to show obscene materials in public (section 43.22 of the Texas penal code). Which is why our library system bans pornography on our computers, although we do not have a filter for the adult computers.
10.14.2008 6:18pm
js (mail):
yes

why, because libraries are some citizens only source of access to the internet. and often the cruder software blocks sexual education of all kinds and information that is not pornographic at all (for example political commentary with indecent language) that would not be suitable for a child but is perfectly permissible for an adult.

and a public library is not obligated to stock all books, they are discouraged from removing them on ideological grounds or any grounds other than obscenity (removing tropic of cancer for example would not be considered acceptable, though keeping it out of childrens hands would) therefore, blocking software is acceptable, but if an adult wants access to information you have to give it to them, as long as it isn't obscene.
10.14.2008 6:21pm
pete (mail) (www):
Here is the FCC summary of The Children's Internet Protection Act, which requires that libraries receiving federal funding have filters to block minors from viewing pornography. And here is the text of the act.

I honestly do not know how the FCC inforces this since I do not think that many libraries follow this and I know where I work children have access to unfiltered internet. I know we get some federal funding, but I do not know if we get the funding described in the act.
10.14.2008 6:34pm
Houston Lawyer:
I don't buy the argument that a public library must provide unfiltered content on the internet. Part of setting up any library is to give access to some content, not to all. If you want to look at porn, go buy it yourself.
10.14.2008 6:37pm
Jay Myers:
One major category error that people seem to have is that it is government censorship when a public library doesn't include certain materials in its collection or filters certain internet sites. Since the library *is* the government, who is being censored?

The government not providing a nonobligatory service is different from the government preventing private citizens from doing that same thing on their own. If Boston decides to ban private ownership of a book, that is one thing but Boston deciding not to use tax money to provide that same book to the public is another thing altogether.

The Washington State Constitution says "Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right." Nowhere does that obligate the state to provide the means for people to speak, write and publish. Nor does it entail an obligation for the state to provide people access to any information they might want (I am excluding from this discussion information that the government itself generates and which the people have a right to obtain in order to exercise their sovereignty over the government).

Of course none of this addresses the touchy question of who gets a say in what materials the government does provide via libraries.
10.14.2008 7:01pm
c.gray (mail):

I also take it that a public library is not obligated to participate in an inter-library loan program to get books that it does not carry.



The correct analogy is more along the lines of:

The library DOES participate in an inter-library loan program.

The library refuses to submit your loan request to the program because a private third-party has alerted it that the title you have requested contains a words from a list of forbidden words prepared by that third-party, or that the source is on a similarly prepared list of forbidden sources.

The library administration has no idea what the list of forbidden words and/or sources contains.

The third-party refuses to share information about why your request ought to be denied with you, because its a "trade secret" (not to mention potentially defamatory to a great many other parties with lawyers at the ready).
10.14.2008 7:27pm
pete (mail) (www):

One major category error that people seem to have is that it is government censorship when a public library doesn't include certain materials in its collection or filters certain internet sites. Since the library *is* the government, who is being censored?


It is censorship when a government library filters a public use library computer. Not all censorship is a bad thing and unless you are an anarchist you are probably in favor of some form of censorship.


Nowhere does that obligate the state to provide the means for people to speak, write and publish. Nor does it entail an obligation for the state to provide people access to any information they might want


Most library charters or mission statements say something to the effect that it is the libraries job to provide as much information to the public as is reasonably possible. Often times that is written into a local government approved policy statement. That does not mean they have to under the first ammendment, but most libraries are at least somewhat legally obligated to operate under that principal.
10.14.2008 7:29pm
Jay Myers:

It is censorship when a government library filters a public use library computer. Not all censorship is a bad thing and unless you are an anarchist you are probably in favor of some form of censorship.

Broadly speaking censorship is the suppression of information (the information is sometimes in the form of pictures or audio). The information on the internet is not being suppressed in this case. It is still out there and available. What is happening is that the government is declining to provide that information. The first case is a negative action and the second case is the absence of a positive action.

If the government doesn't feed you that isn't the same as starving you by preventing you from obtaining food yourself. You can say that the government should commit the positive action but you cannot properly say that the absence of the positive action is the same as committing the negative action.
10.14.2008 7:55pm
KJJ:
The information on the internet is not being suppressed in this case. It is still out there and available. What is happening is that the government is declining to provide that information. The first case is a negative action and the second case is the absence of a positive action.



What if the federgovernment blocked library access to JohnMccain.com? According to you reasoning this would be acceptable becasue the site is still accessable elsewhere.

The government should block *any* content unless it invovles child pornography.
10.14.2008 8:46pm
DrGrishka (mail):
JS- Well, the fact that library may be the only way for some people to access the Net doesn't convince me. I think it is uncontroversial that a library does not have to have an internet connection. So it is under no obligation to be that source. The library may also be the only source to access the Wall Street Journal, yet I don't think it is required to subscribed to it.

C.Gray- I don't think that that is a correct analogy. Letting people browse the web, seems to me to be analogous to letting people browse the items you have on shelves. Except that in the case of the web, you only "virtually" have those items. But there is no obligation to have every page available, just like there is no obligation to have every book available (or to facilitate your access to books that are not available).
10.14.2008 10:04pm
Jay Myers:

What if the federgovernment blocked library access to JohnMccain.com? According to you reasoning this would be acceptable becasue the site is still accessable elsewhere.

They would not be censoring John McCain's political speech. However if they still permitted access to other politicians' websites then they would be guilty of using government resources to selectively promote the political campaigns of John McCain's opponents for the office of President. Their affirmative act is enabling access to the websites of Obama and the other candidates, not failing to provide access to McCain's website.

It's no different than if a Congressman used his office staff to work on his campaign. You wouldn't think to say that he is censoring his opponent by not having his staff also work on their campaign.
10.15.2008 4:29am
David Burt (mail) (www):
I've got nearly all the Bradburn legal documents on my website here http://filteringfacts.org/legal/bradburn/

I don't agree that the Supreme Court interpreted CIPA so as to "require" disabling the filter. From Justice Rehnquist's plurality opinion:

Assuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled. When a patron encounters a blocked site, he need only ask a librarian to unblock it or (at least in the case of adults) disable the filter.

And from Justice Kennedy's concurring opinion:

If some libraries do not have the capacity to unblock specific Web sites or to disable the filter or if it is shown that an adult user's election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge, not the facial challenge made in this case.

While the Supreme Court seems to be suggesting disabling or unblocking of websites as a way to avoid First Amendment problems, it does not appear to be "requiring" it. Further, even if one does assume this is a legal requirement, note how both the plurality and concurring opinion both specifically state that either unblocking of specific websites or disabling the filter meet the same ends. So the library concerned about First Amendment considerations can unblock specific sites request by patrons if they don't want to disable the filter.

Note the policy implications for unblocking sites vs removing the fitler are huge, hence the disagreement.
--David burt
10.16.2008 10:54am