In a precedent-setting decision, a federal court in Virginia today ruled that it is unconstitutional for a public library to filter Net access for all patrons.
Siding with civil liberties groups, U.S. District Judge Leonie Brinkema struck
down Loudoun County Public Library's policy to install X-Stop blocking software on every computer with a Net connection in an effort to bar access to sites deemed "harmful to minors."
A former librarian herself, Brinkema said that the library "has asserted a
right to censor the expressive activity of the receipt and communication of
information through the Internet with a policy that is not necessary to
further any compelling government interest; is not narrowly tailored;
restricts the access of adult patrons to protected material just because
the material is unfit for minors; provides inadequate standards for
restricting access; and provides inadequate procedural safeguards to ensure
prompt judicial review.
"Such a policy offends the guarantee of free speech in the First Amendment
and is, therefore, unconstitutional," she concluded.
The closely watched case was the first First Amendment challenge to library Net filtering, an issue that has been debated throughout the country.
"This is the first decision in the nation that fully applies First Amendment principles to the Internet in public libraries," said Elliot Mincberg, legal director of the People for the American Way Foundation, which filed the lawsuit. "The court agreed with us that a public library may not reduce adults to the electronic equivalent of the children's reading room."
Libraries have been pushed to the front lines of the online censorship battle since the Supreme Court last June struck down major parts of the Communications Decency Act, which made it a felony to provide "indecent" material to minors via the Net.
Libraries in Northern and Southern California, Boston, and Austin, Texas, all have been on free speech groups' radar because of their decisions to try to screen Net sites that contain pornography or other adult content.
Filtering products aren't perfect, and have been found to bar access to constitutionally protected material, which is why the American Library Association advises its members against the practice of using it on all library computers.
The American Civil Liberties Union, which has battled other libraries over filtering, joined as a party in the case against Loudoun in February. The case also includes plaintiffs such as the Safer Sex Page, Banned Books Online, the American Association of University Women Maryland, and Rob Morse, a columnist for the San Francisco Examiner.
The five trustees of the nine-member board that voted in favor of Loudoun's
filtering policy last October, argued that allowing Net surfers to pull up
obscene material could create a hostile work environment and would violate
state and federal laws.
The Loudoun library board hasn't decided whether it will appeal, but will
take the legal steps to protect its option. In the meantime, the board will
review the decision in search of a blueprint to help it hinder minors'
access to "harmful material" and adults' access to illegal content such as
obscenity or child pornography.
"What we were trying to achieve in our original Internet policy was to
treat Net access like our book and movie collections where there is
judgement involved in picking the materials," Chris Howlett, who is vice chair of the board of trustees and supported the policy, said today.
"We felt like we must do something about the library providing materials
that could be illegal for minors under state law or illegal for everybody
under federal law, so we looked for a way to restrict it, and we came up
with a library filter of some sort," he added. "If the decision gives us
legal guidance, I will be very happy--I'm hoping she says how we could do
But Brinkema said the policy is too broad, impedes adults' rights to
download a wide range
of content, and goes beyond the government's interest in protecting
"The policy itself
speaks only in the broadest terms about child pornography, obscenity, and
material deemed harmful to juveniles and fails to
include any guidelines whatsoever to help librarians determine what falls
within these broad categories," she wrote.
In her decision, Brinkema did lay out some less restrictive actions that
could be taken, such as installing privacy screens on library computers or
only limiting access on Net terminals designated for use by children. The
judge also suggested that "the library could install filtering software
that could be turned off when an adult is using the terminal."
This part of her ruling will no doubt be embraced by other communities that
are grappling with whether to offer unfettered Net access or to bar
children's entry to some sites. Just last night, the Plano City Council in
Texas discussed a plan to curb minors access to adult content or to install
filters on all of its computers.
"Any library that is currently doing what Loudoun did--that is censoring
material for adults in the guise of protecting children--the judge says
those libraries are acting unconstitutional and ought to change their
polices fairly quickly," Chris Hansen, an ACLU staff attorney, said today.
"I hope they don't appeal. I love libraries and don't want to spend my time
litigating against them," he added. "The First Amendment is implicated by
everything a library does."
The Supreme Court came to a similar conclusion last summer when it threw out parts of the CDA. Moreover, last Friday a federal judge in Philadelphia temporarily halted the enactment of a federal law that would require operators of commercial sites to confirm the identity and age of visitors or face up to $50,000 in fines and six months in prison for each time an underage surfer gets a hold of "harmful" material.