Several libraries have been sued recently on the grounds that their internet filtering programs are unconstitutional, raising questions in the library community about whether the rules have changed about blocking software.
The short answer is no.
These fact-specific cases arise from the ruling in the 2003 decision in United States v. American Library Association, in which the Supreme Court upheld the Children’s Internet Protection Act. CIPA requires that public libraries receiving certain federal funds use internet filters on public computers to block materials deemed to be visually obscene, child pornography, or harmful to minors; the high court upheld the statute with the caveat that adults would still be able to access constitutionally protected material.
In writing for the majority, Chief Justice Rehnquist explained:
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. . . . The Solicitor General confirmed that a “librarian can, in response to a request from a patron, unblock the filtering mechanism altogether,” and further explained that a patron would not “have to explain … why he was asking a site to be unblocked or the filtering to be disabled.”
Since then, federal court cases have addressed a narrower issue: whether the implementation of a particular library’s filtering policy is constitutional. In November 2006 the ACLU of Washington filed suit against the North Central Regional Library District (NCRL), alleging that the library violated the First Amendment by refusing to disable blocking software at the request of adult patrons (as stipulated in the CIPA decision). After six years of litigation, the federal district court held on April 10 that NCRL’s filtering policy does not violate the US Constitution, partly because the branch libraries are “relatively small in size and only one has a partition separating the children’s portion of the library from the remainder of the library.”
This court decision, however, has little impact beyond that particular library. The decision was by one district judge reviewing one particular set of facts in one library system, and was not published by the court, which further reduces the weight of the ruling.
What does this mean for other libraries that are considering filtering? The fact that the district court in one case upheld an internet filtering system does not mean that other libraries can be assured of a similar result.
In another recent case involving a school library, the US District Court for the Eastern District of Missouri reached a different conclusion. The court held on February 15 that the school district in Camdenton, Missouri, had unconstitutionally blocked websites that support or advocate on behalf of lesbian, gay, bisexual, and transgender (LGBT) people while permitting students access to websites that condemn homosexuality or oppose legal protections for LGBT people.
The district court held that the library’s use of an “anonymous” system for requesting that sites be unblocked was stigmatizing and ineffective if students did not know what had been blocked. After the court’s finding of unconstitutionality, the school district agreed to stop blocking LGBT websites, submit to monitoring for 18 months, and pay $125,000 in attorneys’ fees.
Libraries should continue to be wary of using internet filtering systems that block constitutionally protected material for adults or minors. CIPA only requires filters that block access to visual images of obscenity, child pornography, and, for minors, material deemed harmful to minors. If libraries use filters that block constitutionally protected material deemed harmful to minors and do not allow adults to disable filters, or fail to provide an effective unblocking system, those libraries may open the door to years of litigation and significant legal expenses.
THERESA CHMARA is an attorney in Washington, D.C., who is general counsel of the Freedom to Read Foundation and a board member of the American Booksellers Foundation for Free Expression. She is author of Privacy and Confidentiality Issues: A Guide for Libraries and their Lawyers published by ALA Editions. She emphasizes that this article does not constitute a legal opinion and advises readers to consult their own legal counsel for legal advice regarding their particular situation.