Filth, filtering, and the First Amendment: ruminations on public libraries' use of Internet filtering software.

• Author: Bell, Bernard W.

1. INTRODUCTION

   When First Amendment lawyers wax eloquent about freedom of speech, they almost invariably turn to New York Times v. Sullivan,(1) a decision that unquestionably qualifies as a First Amendment icon. Sullivan involved a defamation claim against the New York Times and several civil rights leaders for an advertisement printed in the Times that condemned the conduct of the Montgomery, Alabama police force.(2) When free speech devotees mention Sullivan, they almost invariably quote the following passage from Justice Brennan's opinion for the Court:

   [W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.(3) The Sullivan case dealt primarily with a mass media entity, the New York Times,(4) and media organizations have been the most zealous guardians of Sullivan and its progeny--virtually every major United States Supreme Court defamation case has involved a media defendant. Discussions in the mass media, such as newspapers, television, radio, and magazines, may reflect a somewhat diverse array of perspectives, but most of these channels of communication are controlled by sizeable organizations.(5) Size often leads to expression of conventional viewpoints, not the "uninhibited, robust, and wide-open" debate celebrated in Sullivan.(6)

   The Internet has, in many ways, moved society closer to the ideal Justice Brennan set forth so eloquently in Sullivan. It has not only made debate on public issues more "uninhibited, robust, and wide-open," but has similarly invigorated discussion of non-public issues. By the same token, the Internet has empowered smaller entities and even individuals, enabling them to widely disseminate their messages and, indeed, reach audiences as broad as those of established media organizations.(7)

   For example, in April 2000, a wildly inaccurate summary of New York Mets Manager Bobby Valentine's comments to a group of students at the Wharton School was posted on the Internet by one of the students. The student, who adopted "Brad34" as his Internet name, had no journalistic training nor work experience for any news organization that would attempt to ensure the accuracy of his material. Brad34's concededly "inventive" summary of Valentine's remarks caused such controversy that the Mets General Manager flew to Pittsburgh to confront Valentine regarding his alleged statements. Sportswriter George Vecsey succinctly described the incident's denouement--"After four days, the Mets sorted out this foray into the wonderful world of the Web, where anybody with a mouse can be Matt Drudge."(8)

   A second example involved renowned fashion designer Tommy Hilfiger. Internet postings "reported" two appearances of the designer. During the first, an interview on CNN's Style With Elsa Klensch, Hilfiger allegedly asserted that Asians did not look good in his clothes. During the second interview, which reportedly took place on an episode of Oprah, Hilfiger allegedly made a similar comment regarding African Americans. Though the reports were widely disseminated and ultimately prompted a public denial by Hilfiger, it turned out that not only had Hilfiger not made the comments, but he had never appeared on either show.(9)

   The very "uninhibited, robust, and wide-open" nature of the Internet illustrated by the previous episodes, as well as others,(10) has provoked varied attempts to control speech on the Internet. Among such efforts is the promotion of filtering software,(11) for use not just by private individuals, but by public libraries as well.(12) The demand for filters mostly stems from concerns about sexually explicit material,(13) even though filters have been developed for other uses, such as blocking sites containing racially and ethnically derogatory speech.(14) The controversy swirling around the use of filtering software by public libraries raises issues that, as this Article will argue, have yet to be resolved satisfactorily.

   In particular, this Article will argue that conventional approaches to analyzing the constitutional issues raised by public libraries' increasing use of Internet filtering software are flawed, because they focus on the interests of speakers rather than the interests of their audiences, and that the interests of recipients of information are paramount in the public library setting. This Article suggests that libraries are the preeminent audience forum, and that librarians should have limited power in precluding Internet access to materials that satisfy their patrons' intellectual interests. This Article contends, however, that libraries can place lesser value on materials that are not primarily focused on intellectual enlightenment, such as sexually explicit material directed toward the audience's prurient interests. Finally, this Article asserts that the courts should consider procedural protection of First Amendment freedoms in the public library context.

2. THE CONSTITUTIONAL CONTEXT

   1. Government's Dual Role as Regulator and Proprietor(15)

      Under the conception of government held by the Framers of the Constitution and the Bill of Rights, government primarily acted as regulator, limiting citizens' conduct for the public good.(16) The founding generation assumed that citizens could live their lives largely without government assistance.(17) Citizens primarily expected government to prevent others from interfering with their pursuit of happiness.(18) The men who crafted the Constitution most feared government when it acted as regulator of private citizens' conduct.(19)

      Since the framing of the Constitution and the Bill of Rights, the federal and state governments have grown into Goliaths that the founding generation could scarcely have envisioned.(20) As federal, state, and local governments have expanded, so have the resources--money, property, and employees--at their command. In 1789, government expenditures were miniscule.(21) Today, government expenditures comprise twenty-nine percent of the gross domestic product.(22) Government allocation of resources and use of property have a much greater impact on the lives of private citizens today than in our nation's formative years.(23)

      Justice Oliver Wendell Holmes illustrated the early judicial reaction to government wielding its resources in ways that affected citizens' constitutional rights in a quip found in his short majority opinion for the Massachusetts Supreme Judicial Court in McAuliffe v. Mayor of New Bedford.(24) McAuliffe, a police officer, had been discharged for engaging in political activities during his off-duty hours. He claimed that by discharging him, the city had infringed upon his right to free speech. Holmes's reply was succinct and memorable: "A person may have a right to talk politics, but not to be a police officer."(25) In other words, the First Amendment placed limits on government control over conduct of private citizens who use their own private resources, but it permitted the government to decide who it will employ and how it will use public money and property. Indeed, as Holmes further observed: "There are a few employments for hire in which the servant does not agree to suspend the constitutional right of free speech as well as [the constitutional right] of idleness by the implied terms of his contract."(26)

      The obvious problem with Holmes's approach quickly manifested itself after government expanded in the first half of the twentieth century. Once government largesse becomes important to citizens, the government can subvert constitutional rights, by conditioning distribution of that largesse on citizens relinquishing those rights. For example, if a government adopts a policy of making unannounced visits to the homes of public assistance recipients to verify their continued eligibility for the program, those recipients' Fourth Amendment rights become meaningless.(27) Aid recipients can protect their rights to prevent government officials from entering their homes without a warrant or probable cause only at the expense of refusing desperately needed aid. As more and more people become dependent on various forms of government aid--through grants-in-aid, government programs, government employment, and the like--the pressure placed upon the exercise of rights increases.(28)

      The Supreme Court has not crafted a coherent approach for resolving the issues that arise when government penalizes the exercise of constitutional rights by the manner in which it distributes its resources(29) The government should have the power to use its resources in ways that support its objectives. If courts constrained the government's use of public resources to the same extent that they limit governmental regulatory authority, government could not operate. At times, the Court allows government to take actions in its proprietary capacity that it would forbid the government from taking in its regulatory capacity.(30) For example, the government can refuse to provide Medicaid funding for indigent women who use it to pay for abortions, because the government operates in its proprietary capacity in determining the way public funds can be used, and can reserve its medical assistance funding for the potential recipients it deems most worthy.(31) Government, however, may not prohibit women from using their own resources to obtain abortions in the first trimester of pregnancy, because in doing so it acts as a regulator, and thus infringes upon women's privacy rights as established in Roe v. Wade.(32)

      Conversely, on some occasions, the Court invokes the "unconstitutional conditions" doctrine, and refuses to accord government greater power when it is acting in its proprietary capacity.(33) The Court asserts that government cannot condition provision of a benefit on recipients' agreements to refrain from exercising their constitutional rights. For example, a state may terminate an untenured college professor...