Why Recent Court Decisions Don’t Change the Rules on Filtering

Dean Marney, Director of the North Central Regional Library, posted a comment challenging some of the statements in my article. I respond to reiterate the message of my article and to clarify that Mr. Marney and I are evaluating the recent decision in the Bradburn case from very different perspectives. Mr. Marney is a library director and views the case from a policy perspective. I am an attorney evaluating the case from a legal perspective. Those are two very distinct conversations.

First, Mr. Marney states that Bradburn is “an incredibly important decision for public libraries in Washington State and throughout the nation.” In fact, from the standpoint of legal precedent the Bradburn case has no precedential value in any other court. Another district court judge could reach a completely different conclusion. That was precisely the point of my article: libraries must consult their legal counsel prior to the adoption of any filtering policies and cannot rely on the opinion of one judge in one case that a filtering policy such as the one adopted by NCRL is constitutional. A library in another jurisdiction – even in Washington State – could adopt the exact same policy as NCRL and still have no assurance that a different judge would reach the same conclusion. Whether an internet filtering policy in a particular library is being applied constitutionally is a fact-based inquiry and the decision in one case is not binding in another case. Libraries must seek their own legal counsel for their own library policies.

Second, Mr. Marney posits: “Ms. Chmara says the federal opinion wasn’t published. Does that matter?” It does. An unpublished opinion from a district court judge has even less precedential value than one that is published.

Third, Mr. Marney points out that the opinion of the Washington State court related to Bradburn was published. The Washington State Court opinion merely addressed the issue of whether the library filtering policy violated the state constitution. It has no reach beyond Washington State. Additionally, the Washington State court did not address the federal constitutional issues. It thus has no impact on challenges in Washington State that allege a violation of the federal constitution, as opposed to the state constitution.

Fourth, Mr. Marney claims that “[b]oth Bradburn decisions are extremely important and should inform the decisions of other libraries considering the deployment of filtering software.” Mr. Marney is making a policy argument. In fact, however, libraries considering the use of filtering software cannot simply rely on these decisions as assurance that they will not be sued or a guarantee that another court will not find their practices unconstitutional. Libraries considering the use of filtering software must consult their legal counsel prior to any such deployment.

[This response does not constitute a legal opinion. Readers should consult their own legal counsel for legal advice regarding their particular situation.]

Theresa Chmara’s “Why Recent Court Decisions Don’t Change the Rules on Filtering” is correct in stating that the courts in ALA v. CIPA and Bradburn et al v. North Central Regional Library have affirmed that “to fulfill their traditional missions, public libraries must have broad discretion to decide what material to provide to their patrons.”

Bradburn et al v. NCRL is an incredibly important decision for public libraries in Washington State and throughout the nation. The Washington State Supreme Court and the Federal District Court each affirmed that an Internet Use Policy, fairly applied and offering web site unblocking alternatives, is a reasonable approach to collection management and one that fully meets constitutional standards. We at North Central Regional Library are proud to offer such a policy, indeed a policy that protects kids, adults, and employees from a hostile environment while offering quality resources to a wide range of patrons having diverse interests.

It is interesting that Ms. Chmara does not mention that the FTRF was involved in Bradburn virtually from inception. Before the case was filed, the ACLU, representing Plaintiffs, briefed the FTRF. The former president of the FTRF and a past Board Member were factual witnesses in the case. To say the case doesn’t matter now just doesn’t make sense.

Ms. Chmara says the federal opinion wasn’t published. Does that matter? The Washington Supreme court’s opinion certainly was. Does Ms. Chmara genuinely believe the federal decision will have no impact on the important national discussion occurring on the subject? Both Bradburn decisions are extremely important and should inform the decisions of other libraries considering the deployment of filtering software.

People often ask why we fought the Bradburn case to affirm our Internet Policy. I have no trouble telling them that it wasn’t a choice–we care about our mission, we care about the people that use our libraries, and we care about our staff.

Dean Marney
Director
North Central Regional Library
Wenatchee, WA 98801

This statement by Theresa Chmara continues to propagate the “dogma” the ALA uses to mislead libraries. In reality, a public library may legally filter out constitutionally protected material such as pornography from public libraries. The ALA/ACLU knows this and if they bring suit again after losing in the US Supreme Court and Washington state and federal courts, a countersuit for vexatious litigation should be considered. I will be writing a much larger comment on this elsewhere.