Filtering *is* Constitutional, Part I

[Filtering Facts]

RE-Posted with permission.

The End of Librarianship?

A Discussion Paper  
from 
the National Coalition for the Protection of Children & Families
(www.nationalcoalition.org)
______________________________________________________________________________


There are good reasons why so many ordinary citizens simply expect Internet
access in libraries to be filtered.  After all, libraries have not
historically provided triple-X pornographic magazines or videos for the
amusement of patrons, and it is difficult to see why a new medium should
change their selection criteria.  

Libraries receive funding from their sponsoring communities to select and
purchase collections which are valuable informational and educational
resources, and to provide open access to the world of ideas.  The profession
of librarianship draws on formal educational training in library science to
assemble such collections on a principled and balanced basis with thought
and care.  Every other medium represented in the library - books, magazines,
newspapers, audiotapes, videotapes, etc. - is subjected to a judicious and
professional selection process. Logically, one would expect the same
professional considerations to apply on the Internet.

In July 1997, however, the American Library Association (ALA) passed a
controversial resolution that filtering software is inappropriate in
libraries.  This decision appears irresponsible and baffling to many
citizens. It is perhaps most easily understood in the context of the close
links between the ALA's Intellectual Freedom Office and the American Civil
Liberties Union (ACLU), which believes that even constitutionally-defined
obscenity and child pornography should be afforded First Amendment
protection.  Clearly, we are not dealing with mainstream views. 

More troubling, however, was the wording of the ALA's resolution that "the
use in libraries of filters which block constitutionally-protected speech is
inconsistent with the United States Constitution and federal law (emphasis
added)"  and "may lead to legal exposure for the library and governing
authorities."  These statements are troubling because they present one
interpretation of the law - theirs - with the force of fact.  They also
imply that there would be no legal exposure from not installing filters,
which is a distinctly open issue.

This paper is not written as a legal  opinion. However, in response to the
ALA's assertions, it is intended as a non-technical summary of issues raised
by lawyers who oppose the ALA's view.


Constitutional myths about Internet filters in libraries

The partisan view of the ACLU and the ALA that filtering in libraries would
be found unconstitutional is usually based on one or more of the following
assertions. 

ACLU /ALA Myth # 1 - The Supreme Court ruling on the Communications Decency
Act (CDA) said that filtering is unconstitutional in libraries.  

This statement is the most disingenuous in the entire debate, since the CDA
ruling didn't even consider the use of blocking software in libraries.  

The Supreme Court explicitly affirmed "the legitimacy and importance of the
congressional goal of protecting children from harmful materials" - a
concern which is shared by many professional librarians - while concluding
that certain of the CDA's provisions were the wrong means to this end.

ACLU /ALA Myth # 2 - Government should not act as censors, and the libraries
are a branch of government.

This sound-bite has a nice ring to it, until you realize that it would
entirely abandon the profession of librarianship.  If library selection
policies, procedures and criteria are automatically deemed to be
"censorship," we don't need librarians.  If the librarian's only constraint
is economic, the Internet has rendered the entire profession obsolete. We
just need purchasing agents to place the orders and filing clerks to stock
the shelves.   The issue is not censorship.  It is librarianship, and the
appropriate use of public funds.

Describing libraries as "government" is a vast over-simplification.  First
Amendment lawyers categorize a library as a "limited public forum" (as
compared to a "public forum" like a sidewalk or park).  The Supreme Court
ruled in Rosenberger (1995) that a limited public forum is justified in
discriminating based on subject or content in order to preserve its purpose,
provided it does not discriminate based on viewpoint.  There is no reason
why a library should have an affirmative obligation to provide access to
everything on the Internet, any more than in any other medium.

The attempt to frame the professional reponsibilities of librarians as
"censorship" is also argued by reference to the following three issues,
which are discussed below:
	-	removal of items from the library
	-	vagueness of filtering criteria
	-	retaining control of the selection process 

ACLU /ALA Myth # 3- The Internet is like an encyclopedia, and if a library
subscribes to an encyclopedia, it cannot "opt out" of parts of it.

This is a perfect example of the dangers of inaccurate metaphors.  The
Internet can't be likened to one encyclopedia, no matter how large.  A more
complete analogy in the print world would be every encyclopedia in print,
plus every non-fiction book in print, plus a significant number of the
fiction books in print, plus most of the magazines in circulation, plus  a
good number of the newspapers, and so forth.  

The Internet has many discrete parts - websites, chat rooms, e-mail,
newsgroups, etc. - each with different characteristics. Even in relation to
websites, for example, to say they are an indivisible whole would be like
saying that a library which does not carry every single book in print is
censoring. You cannot draw guidance for an entire medium like the Internet,
which can be used to access literally millions of separate publications,
from the rules for one individual publication like an encyclopedia.  

In addition, at the end of each day when the library closes,  the
encyclopedias are still there on the shelves.  The web sites are not.  When
a library patron logs off from a particular website, he severs the
connection he had made between the library and the site.  Should he return
next day to reaccess that site, it is physically a new selection -
particularly since the content of  the site may well have changed from the
previous day.  

ACLU /ALA Myth # 4 - Once a public library has provided access to particular
materials, it cannot simply stop providing access based on a dislike for the
content 

This argument is usually presented in the gleeful hope that, if a library
has already installed Internet access, but hasn't reached a filtering
decision, it  would then be barred from ever installing filters.  In other
words, Catch-22!  It would be difficult to believe that every library
providing as-yet unfiltered Internet access had made a conscious decision to
"select everything" on the Internet, which a filter would then "deselect."
But even if that were the case, it simply is not true that libraries can
never "deselect" material - it happens all the time for legitimate reasons.
The issues are motivation, process and the purposes of the library. 

In the 1982 Pico case concerning a school library the Supreme Court said "if
[the board] intended by their removal decision to deny [students] access to
ideas with which [the board] disagreed, and if this intent was the decisive
factor in [their] decision, then [they are] in violation of the Constitution."  

There is a critical emphasis on the library's intent or motivation.
Obviously, a library authority cannot abuse its position to suppress ideas
with which it happens to disagree.  The court noted that: "This would be a
very different case if the record demonstrated that [the board] had employed
regular and facially unbiased procedures for the review of controversial
materials.  But the actual record in the case.. suggests the exact opposite."

The court noted, however, that the challengers had conceded that "an
unconstitutional motivation would not be demonstrated if it were shown that
the [board] had decided to remove the books at issue because those books
were pervasively vulgar" and "if it were demonstrated that the removal
decision was based upon the 'educational suitability' of the books in
question, then their removal would be 'perfectly permissible.'" 

The court also noted that:
-	"we do not deny that local school boards have a substantial legitimate
role to play in the determination of school library content"; and
-	criteria such as the books' 'educational suitability,' 'good taste,'
'relevance,' and 'appropriateness to age and grade level' "appear on their
face to be permissible."

ACLU /ALA Myth # 5 - The criteria used by filtering companies are vague and
overbroad.

While some still argue the tired old routine that blocking the word "sex"
eliminates "Earl of Sussex," etc., market pressures have led better products
like X-Stop, WebSense, Bess and CyberPatrol to substantially eliminate or
minimize such occurences. Particularly with manual override available to the
librarian, this is fast becoming de minimis - a non-issue.  

As the practical issue is solved, however, filtering opponents have
endeavored to retread it as a legal issue. One argument is that most filter
companies protect their "blocked list" as a trade secret, since that is what
they are selling.  The analogy is to court rulings that MPAA movie ratings
could not be used to criminalize access by underage viewers to R- and
X-rated movies, because the methods of setting the ratings were unclear.
Libraries, however, are not seeking to criminalize anyone - they are merely
using filters as an aid, with reasonable selection and override, to achieve
their objectives in building a collection based on appropriate qualitative
judgments guided by library science.

Another argument from filtering opponents is that current filters inevitably
block information protected by the First Amendment.  The implication is that
libraries have an affirmative obligation to provide patrons with anything
protected by the First Amendment, which is clearly untrue.  And as already
discussed, even if filters are regarded as "deselection" rather than
"non-addition," this is still within the professional competence of
appropriate library authorities to do.

ACLU /ALA Myth # 6 - Filters take selection decisions out of the hands of
the librarian and place them in the hands of a company with no experience in
library science.

Conversely, of course, the absence of filters simply abandons the need for
any "library science" in relation to the Internet.  If everything is
available there are no librarianship decisions to take and we don't need
librarians, just computer service technicians.  

Libraries routinely use services which sub-contract selection of magazines,
best-sellers, etc., subject to a general and ongoing after-the-fact
assessment of the adequacy of performance.  Filters are one more selection
service, enabling librarians to select the benefits of the Internet without
having to accept material which conflicts with the library's particular
mission.   Even if there are borderline anomalies, filters can place the
library much closer to "preserving its purpose" than unfiltered access.  And
particularly with the librarian's manual override, it simply is not true to
say that the process is "out of the hands" of the librarian.   

ACLU /ALA Myth # 7 - If a library installs filters, it exposes itself to
legal liability for objectionable materials which still slip through.

In other words, do not act responsibly in case you are sued for not being
perfect. Besides representing extremely cynical advice, the advice is
ill-founded.  

If the concern is being sued by a parent if, for example, her child is
confronted with objectionable material which slipped through, it is an easy
matter to ensure (1) that all parents sign an acknowledgment that, although
the library uses such-and-such filtering service, no filters are perfect,
and (2) that all filtered terminals carry the same disclaimer.

More broadly, the "Good Samaritan" provisions of the CDA provide civil
immunity for "any action taken voluntarily or 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."    It is the person who has taken no such steps who has legal
exposure.

*  *  * * *  * *  * 

The ACLU and the ALA appear to have orchestrated a scare campaign so that
individual librarians and boards will fear "legal exposure" if they install
filters.  This begs the question of the legal exposure of not installing
filters.  Some of the factors which librarians should consider include:

o	A private policy document such as the "Library Bill of Rights" provides no
defense against state or federal laws.  Thus it should not be relied on to
protect against laws such as those proscribing obscenity or protecting
minors from exposure to harmful material.

o	While many of the harms of pornography affect relationships or attitudes,
in some cases the consequences are more drastic.  Where harm is experienced
as a result of pornography obtained at a library terminal,  what is the
civil exposure in a litigious society for negligence or irresponsibility in
refusing to install filtering software?

o	The law of sexual harassment has expanded in the last five to ten years,
particularly in the area of what constitutes a "hostile environment."  The
display of Playboy centerfolds in common areas has been found to constitute
sexual harassment, and such images are mild by comparison to what is easily
found on the Internet. Many business corporations are already installing
Internet filters to protect against this legal exposure. 

It has been well written by a concerned librarian that "[Librarians] are
confusing our communities by simultaneously claiming professional authority
to develop collections for them and denying any responsibility for what they
might find in cyberspace."  

In addition to the professional responsibility, thought should be given to
the legal responsibility - unless the Internet has already brought an end to
professional librarianship.  


by Bruce Watson
Last updated September 22, 1997

© The National Coalition for the Protection of Children 

*****************************************************************************
David Burt, Filtering Facts, HTTP://WWW.FILTERINGFACTS.ORG
David_Burt at filteringfacts.org