Library Net filters violate free speech

In a precedent-setting decision, a federal court in Virginia rules that it is unconstitutional for a public library to filter Net access for all patrons.

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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 broad 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 it."

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 children.

"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.