LJ BackTalk: All or Nothing: Hardly the Facts
Jan 15, 2011In Dean Marney’s curious article “The Internet Is Not All or Nothing” (BackTalk, LJ 11/1/10, p. 32) regarding the Internet, filters, yoga, and the North Central Regional Library (NCRL) court case in Washington State, he took aim at the basic foundations of libraries and information access, to wit, that as librarians we should provide unfettered access to constitutionally protected speech. Marney’s primary premise seems to be that “content matters” and that librarians should use “filtering technology” to manage access to content—for adults and children—regardless of whether the material is constitutionally protected or not. That belief is in direct opposition to the Supreme Court’s in the Children’s Internet Protection Act (CIPA) decision.
Marney certainly has the right to his opinion and beliefs regarding the use of Internet filtering in libraries. However, his article omits several critical facts and misrepresents the role of the Freedom To Read Foundation (FTRF) and the American Library Association (ALA) in the lawsuit filed against his library system. A summary of the facts in the Washington State library filtering case is warranted to correct these omissions.
The suit
In Sarah Bradburn et al. v. North Central Regional Library District, the American Civil Liberties Union (ACLU) of Washington in 2006 filed suit against the library on behalf of three patrons as well as the Second Amendment Foundation. Two of the authors, Kent Oliver and June Pinnell-Stephens, ALA members, were among those who served as expert witnesses for the ACLU and were deposed by the defendant’s attorneys. Neither the FTRF nor ALA is a participant in this lawsuit at this time. Oliver has never participated in the suit in his capacity as a former chair of ALA’s Intellectual Freedom Committee or as a member of the FTRF board.
The suit alleges that the library violated the plaintiffs’ First Amendment rights by refusing to disable Internet filters at the request of adult patrons. The library answered the complaint by denying the allegations. The library stated that it no longer used SmartFilter and denied that it refused requests to disable filters for adult patrons. The library alleged that it began using Fortiguard in October 2006 and that it “has and always has had a procedure in place for dealing with...inquiries” related to a patron’s failure in “gaining access to internet sites they may have found inaccessible.”
The motions
The plaintiffs filed a Motion for Summary Judgment in February 2008 alleging that the library’s filtering policy is unconstitutional—under both the federal and state constitutions—because the library will not disable filters for adult users of the library and the filters in use prevent adults from accessing constitutionally protected material. Plaintiffs argued that the library has the capability to unblock the filter for a single patron at a single computer but refuses to do so. Instead, if a patron requests unblocking of a site, the library will only do so if the library determines that the site would be appropriate for all patrons, including minors. An expert for the plaintiffs estimated that the filter blocked approximately 12 percent of .com sites in error and approximately 24 percent of .org sites. The plaintiffs interpreted the analysis provided by the expert for the library as demonstrating that between five percent and ten percent of sites were blocked in error.
NCRL opposed the motion, arguing that 1) the interpretation of the library expert’s data was wrong and only showed an error rate of .0333 percent; 2) the library is not required to disable at the request of an adult patron; 3) disabling at a single computer would be costly and inefficient; and 4) the analysis of the Washington State constitutional questions should be certified to the Washington Supreme Court and decided before the federal issues are considered. The different error rate calculations attributed to the defendants’ expert occur because the plaintiffs calculate the errors as a percentage of web sites (the higher rate) and the defendants calculate the errors as a percentage of web pages (the lower rate).
The defendants also filed a Motion for Summary Judgment in February 2008, alleging that the filtering system is constitutional for several reasons: 1) it is consistent with its collection policy; 2) it is consistent with its duty to work with schools; 3) it minimizes confrontations between staff and patrons; and 4) it minimizes the prospect of liability for hostile work environment claims. The library alleged that filtering is a form of content selection and it is entitled to filter out certain content consistent with its mission to provide “materials of requisite and appropriate quality” to “facilitate research, learning and recreational pursuits.” The library asserted that its filtering system is not unconstitutionally overbroad because it does not filter out a “substantial” amount of speech.
The outcome
On May 6, 2010, the Washington State Supreme Court held, in a 6–3 decision, that the NCRL filtering policy does not violate the state constitution of Washington. That decision leaves open the question of whether the NCRL filtering policy violates the U.S. Constitution. One justice concurred on the basis that the Washington state constitution protects free speech but not the receipt of information. Three justices strongly dissented on the grounds that the holding was inconsistent with the decision of the U.S. Supreme Court in United States v. American Library Association, 539 U.S. 194 (2003), the CIPA case that upheld a requirement to filter based on the understanding that filtering for adults would be disabled by request and without the need for adults to justify requests for access to particular sites.
Unfettering access
Based on the CIPA ruling, the ALA Office of Intellectual Freedom has counseled libraries that the refusal to disable a filter in a timely manner for adult library customers could subject the library to legal challenges. This has now happened. The federal district court in Washington will determine whether the NCRL filtering system violates the First Amendment of the U.S. Constitution. In particular, the court will decide whether the refusal of NCRL to disable filters for adults is unconstitutional and whether the unblocking procedure used by NCRL burdens the First Amendment rights of library patrons.
Despite Marney’s assertion that librarians should manage content through the use of filters, there is a difference between “pornography” and what is “legally obscene” in our legal system. Often, what many of us consider pornographic is constitutionally protected speech for adults. The First Amendment and subsequent court rulings support this. The FTRF serves to protect the First Amendment rights of libraries and their patrons. If there is a legal ruling somewhere that local public librarians are empowered to decide based on their own personal value system what their public may or may not read or view, we are not aware of it.
Marney’s assertion that “librarians daily deny patron access to valuable First Amendment–protected speech because it is subscription- and fee-based” is irrelevant to this debate. A decision to deny an adult access to particular material based on cost is a valid resource decision that is content neutral. A decision to deny an adult access to constitutionally protected speech because a particular librarian believes it is “pornographic” is content based and unconstitutional.
Filters overblock (deny access to material that is constitutionally protected) and underblock (fail to block access to material that may be deemed illegal by a court). The bottom line, however, is that no filter can be designed merely to block access to illegal speech. The U.S. Supreme Court made clear in the CIPA case that it was upholding the statute because adults would have unfettered access to all constitutionally protected material.
| Author Information |
| Kent Oliver is President, June Pinnell-Stephens is former President, and Barbara Jones is Executive Director, Freedom To Read Foundation We welcome opinion pieces for BackTalk. Please send them to ffialkoff@mediasourceinc.com |
