From Surf to Surfing:How a NJ Court might rule on Filters & Libraries

[Thomas W. Perrin]

For those of you who didn't get it, what follows is a memorandum that I
wrote to my boss.  The Court of Appeals opinion cited at 
http://www-camlaw.rutgers.edu/courts/appellate/a0846-96.opn.html
supports paragraph three below, which has been both affirmed and denied
by members of this list. The assertions made in paragraph three below
have been the subject of an opinion of the San Diego (CA) City Counsel,
and now are affirmed by the New Jersey Court of Appeals.  What's
interesting is that it's local, state law, but applied on principles
that seem to this non-legal scholar to be prevalent from coast to coast. 


"The use of internet filters may offer additional legal problems rather
than solutions to inappropriate use of the internet by the library’s
younger patrons.

The American Library Association and the American Civil Liberties Union
both have a policy that demands unrestricted public access to the
Internet by public library patrons, regardless of age.  In the recent
past, they have both gone to court to enforce those policies under the
First Amendment. There is every expectation that either they, or a
private citizen will do so again.

There seems to be some concern on the internet that if a filtering
program fails to weed out the bad stuff, or is bypassed by a patron, the
library could be held secondarily liable. Filtering could constitute
making a contract with the public through an offer of a guarantee
against "bad" sites being made available in the library.  If a bad site
nonetheless got through the filter, and it were claimed that a child was
damaged from using it, then the library could be held liable for damages
due to negligence. Employing filters might constitute making a promise
to our public that we could not hope to keep, with the clear danger that
having accepted the responsibility, we also accept the liability.
Relying on a use policy may put the library on safer legal ground.
Certainly, any public use policy should be seen by the County’s
attorneys.  

A survey of some 100 public and academic library use policies show that
the overwhelming majority of libraries favor unrestricted use of the
internet, with a clear, unambiguous caveat assigning any censorship
responsibility to the parent. Many of these libraries also have clear
rules for public use of the internet. These rules would do much to
alleviate any parental concerns about their children using or seeing
material the parents deem inappropriate.

Among my personal concerns in this matter is the clear and present
danger that library staff, from top to bottom, will be made
inappropriate objects of public attention by those with religious or
political agendas. "

Tom Perrin