Burning cyberbooks in public libraries: Internet filtering software vs. the First Amendment.

• Author: Semitsu, Junichi P.

INTRODUCTION: BURNING LIBRARY BOOKS WITHOUT CREATING SMOKE

Imagine your local public library, like many of the 15,718 public libraries in the United States,(1) has adopted the American Library Association's (ALA) Library Bill of Rights, which reflects a strong anti-censorship position.(2) Despite this strong "freedom of ideas" creed, however, the local library board, strapped with limited resources, has generally refrained from ordering books or materials deemed sexually explicit or otherwise offensive under community standards. Accordingly, The Anarchist's Cookbook, Madonna's Sex, Mein Kampf, or Hustler cannot be found on any of the shelves. While a few patrons have complained about the board's refusal to order various materials, the city attorney, relying upon Justice Blackmun's language in Board of Education v. Pico, continues to defend the library's right to make "politically neutral" decisions in "choos[ing] one book over another"(3) and maintains that the First Amendment is only implicated if the library removes books from the shelves.

Suddenly, the local library, which has never faced any serious controversy or litigation, ends its tranquil existence when it decides to expand into cyberspace. The library has obtained government funding to purchase several computers to function as Internet access terminals. Consequently, library patrons can use the World Wide Web to gain access to new virtual libraries. They view live photos of NASA space exploration, research new scientific topics in Encyclopedia Britannica On-Line, and check the status of proposed congressional legislation through government websites.

However, the librarians discover that several young children, teenagers, and adults alike use these computers to view and download significant amounts of pornography and other indecent material. Indeed, the library's usage statistics suggest that users do not visit the White House website as frequently as they visit the Penthouse website. Some patrons, including children, visit sites about everything from masturbation to the Aryan Nation to "Reenacting Columbine" to "How to Get a Concubine" to fake nude photos of Britney Spears. In some cases, patrons are unintentionally assaulted with obscene images after a prankster switches the web browser's default "home" page so that Netscape opens with a live video feed of bestiality.

Nonetheless, the library defends its open-access policy, stating that the library does not act in loco parentis. But within days, community members bombard the library and other city officials with an avalanche of complaints. The local newspaper editorial points out that the public library is the only place in town to view the pornographic film Pocahotass and read instructions on how to make a Molotov cocktail. The local Jewish Community Center expresses outrage that an unknown patron tampered with the library web browsers so it automatically opened with a website devoted to Adolf Hitler's writings. One parent even threatens to file suit for providing harmful materials to her children.

Under significant pressure, the library decides to install commercial blocking software on all of its computers, despite the violation of American Library Association policy. The library sets the filtering program at the most restrictive level so as to block out websites that contain "sexual acts" and "nudity," as well as those sites that involve "intolerance," "alcohol and tobacco," and "illegal gambling." The library proclaims that its computers are now family-friendly.

Within a few hours of installation, many library users cry censorship. Patrons find themselves banned from substantial portions of cyberspace, including fairly innocuous areas--sites providing information on breast cancer, a site offering updates on upcoming gatherings of the local Gay and Lesbian Country-Western Line-Dancing Club, and any site involving the town of Intercourse, Pennsylvania. In fact, because the filtering program blocks sites containing the words "affair" and "cocaine," nobody can read news about the Republican candidate for president. In response, the library agrees to accept requests to "un-block" specific websites, which will be considered on a case-by-case basis. Nonetheless, the local civil liberties organization has filed a First Amendment suit challenging the constitutionality of the public library's policies and use of the filter.

What should the library do?

Although these facts are mostly fictional, this issue is not confined to a hypothetical constitutional law exam question or a law review note. The decision whether to install filters is currently bedeviling many of the approximately 11,600 public libraries (or 73.3 percent of all public libraries) that currently provide Internet access.(4) Those that choose to install filters find every patron and her mother decrying censorship, as patrons are blocked from innocuous, important, and educational sites. Indeed, it is conceivable that a library patron would be completely blocked from discovering why the House of Representatives impeached President William Jefferson Clinton since the words "oral sex" beg to be blocked by most filters.

But those that choose not to install filters face equally serious consequences. The risk posed by unfiltered computers increases with the growing amount of "dangerous" and illegal material on the Interact, as well as the increasing likelihood that a web surfer could unwittingly encounter pornographic images. For example, a Portuguese hacker recently hijacked twenty-five million web pages, including the Harvard Law Review page, causing visitors to these sites to be instantly bounced to seamy images of "lurid sex scenes" offered by an Australian pornography company; the offended web surfer had no choice but to turn off the computer to eliminate the pornographic images.(5) Even though this was a rare incident and even though no library patron may ever visit the Harvard Law Review web site, documented incidents of exposure to obscene images has prompted a pro-filtering organization to announce that the public library has become "a place of dangerous access to hard-core pornography, child pornography and pedophiles."(6) Dr. Laura Schlessinger, a popular radio show host, has called on her daily listeners to picket libraries that supply children with pornography;(7) incidentally, some of the pornographic images available on the Internet happen to be nude photos of Dr. Laura herself that were taken by an ex-lover and sold to an X-rated website.(8)

The controversy seems to leave librarians in a lose-lose situation. Worse yet, several libraries that chose to install filters, as well as some that refused to limit access, have been sued by outraged patrons. These embattled libraries found themselves dragged into a judicial arena without clear precedent: until recently, no federal court had reached a decision on the merits of this issue.

However, in November 1998, a United States district court in Virginia handed down a landmark decision, striking down a county library policy requiting filtering software on all computers connected to the Internet.(9) Judge Leonie Brinkema, a former librarian,(10) ruled that the policy violated the First Amendment(11) because adults were unnecessarily blocked from accessing constitutionally protected materials.(12) While this ruling serves as a strong precedent, it is of course not binding in most areas of the country. The library did not appeal.(13)

A public library's decision whether to filter is significant beyond the legal ramifications. Jeanne Hurley Simon, chairperson of the National Commission on Libraries and Information Science, notes that "Libraries are helping to bridge the digital divide"(14) by providing Internet access to many rural and impoverished areas where patrons often lack alternative methods of access. As the library provides the exclusive source of Internet access to millions of Americans, a particularly restrictive filtering policy could deny a substantial percentage of the population access to important and useful materials. On the other hand, unrestricted access might transform the public library into the pornographic arcade for the twenty-first century.

This note explores the First Amendment issues raised by filtering software in public libraries. Part I offers a brief introduction to how filtering technology works. Part II provides a cursory overview of the legal battles resulting from the policy routes that various libraries have chosen.

Then, Part III discusses how current First Amendment jurisprudence might apply to public libraries that install filtering software on their computers. In particular, this part explores whether these filters operate as an invalid prior restraint and whether they are the least restrictive means of furthering a compelling government interest. This part also explores whether the public forum analysis and the overbreadth doctrine apply.

Finally, Part IV discusses the options available to a library attempting to respond to parents' concerns over minors' access to "harmful materials." Part IV presents a draft library policy that goes as far as possible to respond to these concerns without violating the First Amendment.

1. HOW FILTERS WORK AND WHY THEY BLOCK SUPER BOWL XXX SCORES

   Current software filtering technology falls into two general categories: site-specific and ratings-based. Each will be discussed, in turn, below.

   1. Predetermined Blocking Filters

      Filters work to block the reception of speech. The currently available filtering software uses technology known as "predetermined blocking." These filters rely on one or more of five methods: "blacklists," "allow lists," "word-blocking," "image-blocking," and the blocking of entire categories.(15)

      At the moment, most filtering software screens offensive content by using the blacklist method: blocking access to any site or newsgroup contained within a predetermined database of prohibited...