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.
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...