Filtering sexual material on the Internet.

Public Libraries Surf the Legal Morass

Public libraries now have little choice but to provide ready access to the World Wide Web. The scope of data is almost limitless; the cost is minimal after the initial hardware purchase; and access requires little staff assistance. For public libraries perpetually short on funds for staffing, an added advantage is that Internet data requires no cataloging, shelving, or updating.

But the Internet is also host to significant amounts of sexually explicit material--as many as 28,000 hard- and soft-core pornography sites.(1) Some of these adult sites can only be accessed with credit card numbers, but others can be inadvertently accessed by children or unsuspecting adults using innocuous search terms--"toy" or "women," for example. Concerned about the impact of exposing adult and child patrons, as well as their own staffs, to pornography, public libraries are turning in large numbers to software systems that block or filter sexually explicit and other "inappropriate" material.(2)

Not surprisingly, no such software is capable of making sophisticated, legal distinctions: Images and speech are targeted if they contain key words in their descriptors; websites are blocked if they are known to be adult in orientation. Educational, literary, and artistic material, as well as controversial viewpoints and other constitutionally protected speech, is often blocked in the process. As a result, a federal district court has ruled that a Virginia library's filtering of sexual material, using such blocking software, constitutes a violation of First Amendment guarantees of free speech.(3)

That opinion, Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 24 F. Supp. 2d 552 (E.D. Va. 1998), the only case to date that applies First Amendment principles to Internet access at public libraries, leaves libraries across the country in something of a quandary. More than half of all public libraries now offer Internet access, and approximately 15 percent--about 1,700 libraries--were using filters as of the summer of 1998. Of these, almost 900 libraries had filters on all computer workstations.(4)

The use of blocking software has proliferated despite the fact that library professionals traditionally have been philosophically opposed to censorship. Since 1939, the American Library Association (ALA) has advocated freedom of expression and the "corollary right to receive information."(5) As recently as 1996, the ALA issued an "interpretation" of its Library Bill of Rights supporting uncensored Internet access, stating that material should not be limited or denied because of its "allegedly controversial content."(6)

But cyberspace is a dynamic and unwieldy medium without the practical constraints that bind print publishing. Typically tolerant librarians are finding their belief systems challenged by the sexually graphic and often violent nature of the images flashing from library computer screens--and by the apparent indifference of those who view such material in public. "Can and should the Internet be censored by filtering is a question bedeviling thousands of public librarians who have rushed to embrace this seemingly limitless and economical information source only to find that it includes a distinctly dark and dirty side," wrote librarian Jeannette Allis Bastian, in an article published in the Internet journal, First Monday.(7)

Public libraries that offer Internet access are struggling to come up with workable policies that are true to their professional ideals and to the Constitution, but that protect children from unsuitable material. This article will attempt to sort through the legal and moral quagmire that Internet access has brought to public libraries. It will examine the principles contained within the Loudoun opinion and related First Amendment case law and suggest some strategies for avoiding the traps that ensnared Loudoun County, Virginia. It will also explore possible and proposed legislative solutions.

Mainstream Loudoun

In October 1997, the Loudoun County public library adopted a policy requiring the installation of software on the library's computers that would block out pornography. The policy stated that "Library pornography can create a sexually hostile environment for patrons or staff." It also suggested the need to protect children from "harmful" material. The library installed a version of the blocking software known as "X-Stop," designed to block certain offensive websites.

Two organizations, People for the American Way (PFAW) and the American Civil Liberties Union (ACLU), filed the initial complaint against Loudoun County on behalf of local residents and a handful of blocked information providers.(8) The plaintiffs alleged that the Loudoun County Library had violated the Civil Rights Act of 1964, 42 U.S.C. [sections] 1983, by denying its patrons access to protected speech. About one year later, on November 23, 1998, Judge Leonie M. Brinkema of the U.S. District Court for the Eastern District of Virginia ruled that the library could not continue to use the blocking software because it violated the First Amendment rights of both the patrons and the website providers.

In a 46-page opinion, Judge Brinkema wrote that the policy was unconstitutional based upon a "strict scrutiny" analysis because it was not narrowly tailored to further a compelling government interest.(9) The judge found that Loudoun County had restricted adult access to protected material simply because it was unsuitable for children.(10) She also found that the policy failed to provide adequate due process: The standards for determining which sites to block were insufficient, as were the procedural safeguards for contesting specific incidents of blocking. In light of the decision, the county's library board has removed the filters.

Restricting Internet Speech

To date, regulations that attempt to restrict or limit speech on the Internet have not fared well with the courts. In Reno v. American Civil Liberties Union, 117 S. Ct. 2329 (1997), the U.S. Supreme Court struck down as unconstitutional two provisions of the Communications Decency Act of 1996(11) (known as CDA I) that sought to protect minors from harmful material on the Internet. One provision made it a crime to knowingly transmit "obscene or indecent" messages to anyone under 18.(12) Another section went further, making it a crime to knowingly send or display a message that depicted or described sexual or excretory activities or organs in terms considered "patently offensive" by community standards.(13)

The Supreme Court held in Reno that speech found on the Internet should receive full First Amendment protection, and that a "time, place, and manner" analysis was inappropriate because the regulation in question was "content based.(14) The court stated that, while the government has an interest in protecting children from potentially harmful materials, it cannot violate adults" constitutional rights to achieve its goals when less restrictive means are available to them.(15)

Acquisition or Removal?

Following the lead of the Justices, Judge Brinkema opined that libraries that use filters are engaged in "content-based" censorship, not a "time, place, and manner" restriction. The judge likened the filtering of the Internet to the removal of books from library shelves--and "(p)ublic libraries do not enjoy unfettered discretion to remove materials from their collection."(16)

Libraries freely make decisions about which materials to acquire. Deciding against the purchase of, say, Hustler magazine, would not likely invoke a prior restraint or censorship challenge; First Amendment safeguards simply have not and would not be construed to mandate acquisitions. Yet, arguably, the Loudoun decision does just that by requiring libraries to acquire pornography and other materials that they would never purchase in print. This reasoning confounds librarians who believe they have a responsibility to winnow and refine their collections so as to make them appropriate for their communities.

In making comparisons between print and cyberspace, the judge, a former librarian, appears not to fully consider the uniqueness of each medium. For example, the judge minimizes the impact that monitoring Internet usage would have on a library's staff, likening it to "shooing" giggling, prepubescent boys away from gynecological pictures in medical books.(17) Clearly, the sheer volume of sexual material, the graphic nature of that material, and the ease with which it can be accessed make that comparison less than apt.

The Loudoun opinion suggests several less restrictive means to accomplish the library's goal of protecting children from obscene material on the Internet, although the judge stops short of giving any approach not under review the court's imprimatur.(18) These include: 1) establishing a use policy; 2) setting time limits on usage; 3) educating patrons; 4) turning filters off for adult use or using filters on only some machines; 5) relocating terminals; 6) enforcing criminal laws; and 7) using privacy screens.(19)

Private Viewing

Privacy screens--devices that attach to the computer screen and make viewing from afar difficult--are a somewhat effective method of protecting patrons and staff from casual observations of obscene material. But screens do nothing to discourage pornography viewers from monopolizing the computers. Nor do they protect the unsuspecting patron who sits down at the computer to discover a pornographic image on the screen, downloaded by a previous patron or prankster. But perhaps even more unsettling to some is the mere notion of providing what amounts to publicly financed virtual peep shows. The irony that some local governments that operate libraries are, at the same time, struggling to zone adult bookstores out of many sections of their communities is not lost on librarians.

Other means suggested by the Loudoun court present similar dilemmas. For example, the court suggested the filtering of one or more, but not all, terminals.(20) Some librarians wonder how this approach would play out: Would this necessitate labeling machines as unfiltered ("rated x"?) or filtered ("rated PG")? Would this require that library staff monitor all computer use to prevent use of an unfiltered machine by a child? And would children be required to bring in a signed permission slip from parents before being allowed to use an unfiltered computer terminal?(21)

Libraries may be adverse to any approaches that require staff to monitor computer usage. "Libraries don't want to police and they certainly don't want to censure," said a University of Akron librarian, who added that most libraries don't have the resources to enforce Internet restrictions anyway.(22) Ultimately, some sort of monitoring--of time on the computer, of usage by children, of material itself--may be inevitable. The Loudoun court found evidence "undisputed" that "charging library staff with casual monitoring of Internet use is neither extremely intrusive nor a change from other library policies."(23) Regardless of the practical implications, filtering some, but not all, computers may strike some as judicial hairsplitting that satisfies neither those who oppose filtering nor those who advocate it--something conservative George F. Will might liken to adding snowmen and elves to a municipal nativity scene to make it pass constitutional muster.(24)

Preventing Prior Restraint

First Amendment free speech principles are abridged when government officials require citizens to obtain permission prior to engaging in free speech activities and when the officials have unbridled discretion to grant or deny that permission.(25) To avoid such "prior restraint" of speech, a policy restricting speech must contain adequate standards for officials to apply in rendering a decision, as well as procedural safeguards to ensure a prompt decision.(26)

Loudoun County's policy contained "neither sufficient standards nor adequate procedural safeguards."(27) The court found the county's discretion to censor "essentially unbounded" because the policy spoke only in broad terms about "child pornography, obscenity, and material deemed harmful to juveniles." It also failed to "include any guidelines whatsoever to help librarians determine what falls within these broad categories."(28) Moreover, the policy had little connection to the actual criteria used to block sites--criteria determined solely by the software vendor. The court found it particularly egregious that the library had, in essence, turned decisionmaking regarding such criteria over to a private entity.(29)

According to the court, the policy also failed to contain procedural safeguards for preventing unlawful restraint. Loudoun's policy contained no formal procedures for "unblocking" software. (The informal policy was that, if a library patron wanted access to a blocked site, he or she must put such a request to the librarian, in writing.) The court suggests that, to meet the requirements of the law, a policy should contain a provision for formal administrative review, a time period for conducting a review, and a requirement that such applicants receive formal notice of administrative action.

Further, the court indicated the need to include in such a policy a process for judicial review, i.e., a method of appealing the administrative decision in a judicial forum, at which time the standard of review would require the government to carry the burden of proof.

Effects of Loudoun

Although Loudoun is binding only in its federal district, libraries across the country began reviewing their policies to determine if changes were in order following the ruling.(30) Perhaps the most difficult principle contained within the opinion is the notion that local libraries must actively determine criteria for blocking material, and that such criteria would have to pass constitutional requirements. Given that most libraries now use an "off-the-shelf" product, as opposed to a customized piece of software, it is not clear how this would be accomplished.

It is likely that most libraries using blocking software utilize the categories constructed by the software publisher. (For example, one software vendor allows users to block all sites containing "pornography" or "sexuality/lifestyles."(31)) Until Loudoun, few libraries would have actively defined the parameters of those categories. Loudoun suggests that libraries need to understand the criteria or basis on which blocking determinations are made. In addition, libraries should review the list of key words or other criteria for blocking sites and make determinations as to the appropriateness of the criteria, using as a guide the U.S. Supreme Court's definition of obscenity. Unfortunately, such a mandate is fraught with difficulties given the technological limitations, the dynamic nature of the Internet, the massive amounts of information contained within it, and the complex legal requirements under which such determinations must be made.

One approach would be to review all blocked sites that were "hit" by patrons to ensure no constitutionally protected speech is being blocked. Although such an approach is after-the-fact, it does suggest a good faith effort to adhere to First Amendment principles. Moreover, it is perhaps the only way a library staff could narrow the number of sites it is reviewing to a manageable number. This approach still requires library officials and boards to make decisions as to what does and does not constitute obscenity, something that has confounded even the land's highest court. One can only hope that, like Justice Potter Stewart, library officials and boards will "know it when they see it."(32)

Liability for Libraries

What are the legal risks for libraries that choose to filter the Internet but fail to establish a constitutional filtering policy and process? What defenses are available to them should they be named in a lawsuit brought by patrons or providers? Based on Loudoun County's experience, sexual discrimination laws are not an adequate defense.

Loudoun County had argued that it had a compelling interest in protecting staff and patrons from a sexually hostile environment precipitated by exposure to pornographic images. The court dismissed this defense as theoretical. Loudoun County had no evidence--no complaints from patrons or staff--that the exposure was creating a harassing or hostile environment.(33)

One provision contained within the CDA I which was not struck down as unconstitutional in the original Reno case does offer some protection for public libraries should a patron or provider file a complaint alleging the inappropriate blocking of materials.(34) The provision grants immunity from civil suits to those libraries or educational institutions that, in good faith, block access to obscene material, regardless of whether such material is constitutionally protected,(35) Loudoun County argued that this provision provided absolute immunity from suit for their decision to promulgate and enforce the filtering policy.(36) Judge Brinkema ruled that this provision "was not enacted to insulate government regulation of Internet speech from judicial review."(37) Furthermore, the judge stated, even if [sections] 230 were construed to apply to public libraries, the provision did not apply to this case because the plaintiffs sought declaratory and injunctive relief, not civil damages.(38)

Are government operators of libraries liable for damages to patrons if they do not filter computer terminals? Pro-family groups have argued as much, as has a plaintiff in California whose child brought home reams of pornography after visiting the public library.(39) The National Law Center for Children and Families stated in a memorandum of law that government entities that "refuse" to install filters expose themselves to criminal and civil liability.(40) But, based on Loudoun, the risks appear to be greater for those that choose to filter.

Will Congress Step in?

Across the Potomac from Loudoun County, in Washington, D.C., the U.S. Senate has begun holding public hearings regarding the controversial issue of filtering Internet usage at public and school libraries. Both the Senate and House of Representatives are considering bills that require schools and libraries to filter one or more of their computers offering Internet access or face the loss of certain federal funds related to telecommunications services.(41) The proposed legislation, named the Children's Internet Protection Act, failed to win approval in the last Congressional session but was reintroduced this year.(42) As drafted, the act would require the local library or school to be responsible for determining what material is deemed harmful to minors.

Conclusion

Public libraries that choose to filter the Internet can minimize their legal risks by constructing and posting a written policy that contains standards based on U.S. Supreme Court doctrine. The policy must direct the actual functioning of the filter: Libraries should not allow the software vendor to unilaterally decide which material to block. Finally, libraries must establish policies that contain appropriate procedural safeguards.

In summary, a moderate approach may prove to be the most preventative approach, discouraging lawsuits from both sides of the political spectrum. A mix of methods may also prove to be the most effective, i.e., an approach that utilizes some (limited) filtering, some monitoring by staff, and some use of privacy screens. Regardless of the approach, public libraries must be vigilant in developing and effectuating its policies given the dynamic and ongoing public debate surrounding Internet filtering.

(1) Report 105-226, 105th Congress, 2d Session, Internet Filtering Systems, citing WIRED magazine as the source.

(2) See The 1998 National Survey of U.S. Public Library Outlet Internet Connectivity, a survey conducted for the American Library Association Office for Information Technology Policy, May and June of 1998. The survey found that 14.6 percent of public libraries offering Internet access were using filtering software on some or all of their public computers. Results were based on a survey of 2,500 of the nation's 14,945 public libraries.

(3) See Mainstream Loudoun, et al. v. Board of Trustees of the Loudoun County Library, 24 F. Supp. 2d 552 (E.D. Va. 1998).

(4) The 1998 National Survey of U.S. Public Library Outlet Internet Connectivity. The survey found that seven percent had filters on some workstations while 7.6 percent, or 878 libraries, had filters on all workstations.

(5) American Library Association, "Access to Electronic Information, Services, and Networks: an Interpretation of the Library Bill of Rights," adopted by the ALA Council Jan. 24, 1996.

(6) Id. The interpretation stated: "Libraries and librarians should not deny or limit access to information available via electronic resources because of its allegedly controversial content or because of the librarian's personal beliefs or fear of confrontation. Information retrieved or utilized electronically should be considered constitutionally protected unless determined otherwise by a court of appropriate jurisdiction."

(7) Jeannette Allis Bastian, Filtering the Internet in American Public Libraries: Sliding Down the Slippery Slope, FIRST MONDAY (1997). Bastian is the Territorial Librarian and Director of Libraries, Archives and Museums in the U.S. Virgin Islands.

(8) The plaintiffs included: Mainstream Loudoun, Judy Coughlin, Henry Taylor, Ann Curley, Judith Randal Hines, Loren Kropat, Mary C. Duchateau, Kathryn Kern-Levine, Michael M. Clay, John S. White, Jerome J. Smith, and Mary Adams.

(9) Loudoun, 24 F. Supp. 2d at 567.

(10) Id. at 567.

(11) The CDA is part of the Telecommunications Act of 1996, Pub. L. No. 104104, 110 Stat. 56 (1996).

(12) 47 U.S.C.A. [sections] 233(a)(1)(B)(ii) (Supp. 1997).

(13) 47 U.S.C.A. [sections] 233(d) (Supp. 1997).

(14) Reno v. ACLU, 117 S. Ct. 2329 (1997).

(15) Id. at 2346. Another Congressional attempt to regulate Internet speech may meet a similar fate. In February, a federal judge issued a preliminary injunction to stop the enforcement of the On-Line Child Protection Act, which provides both criminal and civil penalties for those who "for commercial purposes" make communication available that is harmful to minors. Known as "CDA II," this act may suffer from the same constitutional malady as "CDA I," i.e., it appears to deny adults the right to access constitutionally protected material.

(16) See Board of Education v. Pico, 457 U.S. 853,866 (1982) (The right to receive information is inherent in the right to speak and "the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge.").

(17) Loudoun, 24 F. Supp.2d at 567.

(18) Id. at 567.

(19) Id. at 566.

(20) Id. at 567.

(21) Loudoun County's Library Board now allows minors to use unfiltered machines with parental approval.

(22) Justine Kavanaugh-Brown, Libraries Adapt to the Internet Age, 12 GOVERNMENT TECHNOLOGY 36 (Jan. 1999).

(23) Loudoun, 24 F. Supp. 2d at 567.

(24) See column by George F. Will, NEWSWEEK, Dec. 21, 1998.

(25) Loudoun, 24 F. Supp. 2d at 568, citing 11126 Baltimore Boulevard, Inc. v. Prince George's County, 58 F.3d 988, 994 (4th Cir. 1995).

(26) Id.

(27) Id. at 569.

(28) Id. at 569.

(29) Id. at 569.

(30) See Reviews Follow Ban on Library Internet Filter, NEW YORK TIMES, Nov. 25, 1998.

(31) See NetPartners Internet Solutions, <http://www.netpartners.com/products/ sites.html>.

(32) Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).

(33) "Simply alleging the need to avoid harassment is not enough(;) ... the defendant() must show the threat of disruption is actual, material and substantial." Loudoun, 24 F. Supp. 2d at 565 (11) citing Johnson v. Los Angeles Fire Dept., 865 F. Supp. 1430,1439 (C.D. Cal. 1994).

(34) See 47 U.S.C. [sections] 230 (Supp. 1997): "Protection for private blocking and screening of offensive material." Subsection c(2) provides: No provider or user of an interactive computer service shall be liable on account of ... any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected."

(35) Id. The act defines "interactive computer service" to include "a service or system that provides access to the Internet (that is) offered by libraries or educational institutions." 47 U.S.C. [sections] 230(e)(2) (Supp. 1997).

(36) Loudoun, 24 F. Supp. 2d at 561.

(37) Loudoun, 2 F. Supp. 2d 783, 790 (E.D. Va. 1998) (Memorandum Opinion and Order issued April 7, 1998, in response to a defendant's motion to dismiss).

(38) Id. See also Loudoun, 24 F. Supp. 2d at 561.

(39) Kathleen R. v. City of Livermore, Case No. V-015266-4 (E.D. Cal. filed May 28, 1998)

(40) See National Law Center Memo, <http://www.filteringfacts.org/nlc.htm>.

(41) See S. 1619, 105th Cong., 2d Sess. (1998), H.R. 896, 106th Cong., 1st Sess. (1999)

(42) Introduced by Senator John McCain and Representative Bob Franks.

Sarah E. Warren is an assistant county attorney for the Sarasota County Office of the County Attorney, where she practices primarily in the area of contract law. She received her J.D. in 1994 from Stetson University College of Law. The author thanks Rolando Santiago, Scott Goldberg, and Kimberly Doud for their assistance with research for this article.