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Filtering lawsuit going forward

A federal judge will hear a civil liberties lawsuit over the Loudoun County Public Library's policy to filter "material deemed harmful to juveniles."

Agreeing that Net filtering at public libraries is like blacking out passages in books, a federal court decision issued yesterday stated that government mandates to screen online content will face the strictest constitutional scrutiny.

In a closely watched case unfolding in Virginia, U.S. District Judge Leonie Brinkema has pushed forward a civil liberties lawsuit to overturn the Loudoun County Public Library's policy to use the program X-Stop to limit all patrons' online access to any "material deemed harmful to juveniles."

More significantly, Brinkema's 36-page ruling rejecting the county's request to dismiss the case concluded that library Net filtering is not the same as a branch choosing which books to stock, and therefore the practice could violate free speech. Restricting adults' access to online content will be hard to justify, she added.

The Supreme Court came to a similar conclusion last summer when it threw out the Communications Decency Act, which made it a felony to send "indecent" content to minors over the Net.

Brinkema's decision marks only the first step in the case. Now the lawsuit will go for a full trial, in which the county will have to meet the burden of proof she laid out yesterday. The county's task is daunting, however, as Brinkema already ripped apart most of its arguments.

Trustees who voted in favor of Loudoun's filtering policy said allowing Net surfers to pull up obscene material can create a hostile work environment.

"As trustees we have to be concerned about having damages levied against the library for sexual harassment cases," John Nicholas, chair of the library board, said today.

"This isn't political or about legislating morality," he added. "Anything displayed on the Net in the library that could create a sexually hostile environment has to be dealt with. If not for [the federal sexual harassment laws], we would just have limited minors' access by establishing adult terminals and child terminals."

The county also contends that filtering Net access is the same as its decision not to buy certain paper-based materials. But Brinkema agreed with the civil liberties groups that filtering is more like pulling materials from the shelves--in other words, censorship.

"Plaintiffs analogize the Internet to a set of encyclopedias, and the Library Board's enactment of the policy to a decision to 'black out' selected articles considered inappropriate for adult and juvenile patrons," she wrote in the ruling.

"By purchasing Internet access, each Loudoun library has made all Internet publications instantly accessible to patrons," she continued. "As such, the Library Board's action is more appropriately characterized as a removal decision."

The Library Board also argues that patrons can fill out a form to request that certain sites be "unblocked," and the petitions will be reviewed by library staff. Still, the county will not be able to use the "unblocking" procedure as a defense for the policy, the judged countered, "because it grants library staff standardless discretion to refuse access to protected speech."

And citing the Supreme Court's ruling against the CDA, Brinkema said the county can't "in the interest of protecting children, limit the speech available to adults to what is fit for 'juveniles.'"

The federal judge recognized, however, that there is "no basis for qualifying the level of First Amendment scrutiny that must be applied to a public library's decision to restrict access to Internet publications."

The judge's ruling is not final, however. She noted that other questions need to be more thoroughly examined by the court, such as the defendant's justification for the policy; the actual sites blocked by X-Stop; and the defendant's "knowledge of and control over the sites X-Stop blocks."

The outcome of the Loudoun case no doubt will serve as a litmus test for other libraries that are filtering access to certain sites, or those that are considering doing so. Most policies target sexually explicit content.

In addition, legislation is making its way through Congress to require public schools and libraries that get federal discounts on Net access to install software on their computers to filter out material that is "inappropriate for minors," as defined by the community

The People for the American Way and the American Civil Liberties Union are suing Loudoun on grounds that Net blocking programs often bar entry to constitutionally protected sites with social value, such as newspaper columns by Rob Morse of the San Francisco Examiner, who is a plaintiff in the case. Morse covers an array of subjects, from the pains of filing income tax returns to gay and lesbian issues. But his articles, as well as the entire SF Gate newspaper site, is allegedly blocked in Loudoun libraries.

"This policy can?t meet the standards set forth by the judge--so the writing is on the wall for this policy," Larry Ottinger, senior staff attorney for People for the American Way, said today.

The ACLU will leverage Brinkema's comments and decision to hear the case in its fight to derail other policy makers who are mulling over Net filtering at libraries.

"The judge has presumed that this is unconstitutional and now the government will have to overcome that," Ann Beeson, the ACLU's staff attorney, said today. "The precedent of this decision has sent a strong message to other libraries that are grappling with this policy and Congress that using filtering software brings up very serious First Amendment concerns."

Brinkema did not side with the civil liberties groups on all fronts, however. She dismissed some of the plaintiffs in the case, such as library patrons who never tried to access sites that were blocked by the policy.