A rural library district was sued Thursday by the American Civil Liberties Union over its Internet filtering policy. The lawsuit, filed in U.S. District Court here, seeks an order directing the North Central Regional Library District to provide unblocked access to the Internet when adults request it. The ACLU of Washington brought suit on behalf of three individuals and the pro-gun Second Amendment Foundation over the library district's Internet filter on computers.
The lawsuit contends the library's policy of refusing to disable its Internet filters when requested for lawful purposes is unconstitutional and goes beyond what federal law requires. "Libraries should not deny adults using publicly available computers the opportunity to view research material and other lawful information," ACLU Legal Director Sarah Dunne said in a release.
Dean Marney, director of the library district based in Wenatchee, said he was surprised by the lawsuit. He said the library recently changed its filtering software that allows sites to be unblocked. However, federal law does not require that requests to remove filters be granted, he said. Doug Honig, an ACLU spokesman in Seattle, said new filtering software is "a step in the right direction," but does not change the underlying legal issue: whether libraries should act as gatekeepers of what adults do legally online.
Libraries that receive funds for Internet access under two specific federal programs are required to have the ability to block minors from seeing visual depictions of sexual activity. But the U.S. Supreme Court has interpreted the law to mean that libraries should disable those filters upon the request of an adult.
The plaintiffs include a Ferry County woman who wanted to do research on drugs and alcohol while studying at Eastern Washington University; a professional photographer blocked from researching art galleries and health issues; and an Okanogan man unable to access a Web log he maintains, as well information relating to gun use by hunters. The Second Amendment Foundation is another plaintiff. The Bellevue-based organization contends the library district blocked online access to Women & Guns, a magazine it sponsors covering topics such as self-defense, recreational shooting, new products and legal issues.
The district has 28 branch libraries in Chelan, Douglas, Ferry, Grant and Okanogan counties.
My, all this activity related to CIPA and COPA starting up again all at once. Very strange.
It will be interesting to see what happens with this. According to a Findlaw analysis of the CIPA decision at the time it was made, the library district may not have a legal leg to stand on:
On June 23, the Supreme Court issued what had been anticipated to be a major First Amendment decision, United States v. American Library Ass'n. Inc.. There, the Court held, 6-3, that the First Amendment does not prohibit Congress from forcing public libraries - as a condition of receiving federal funding - to use software filters to control what patrons access online via library computers. [...] The stakes of the American Library Ass'n case were significantly lowered when the government promised, in the course of litigation, that the libraries could, and would, remove the filters if users asked them to do so. It also promised that users would not have to explain why they were making the request. [...] Plainly, the "unblocking option" concession by the government softened the conflict at the heart of the case - between users who want to access certain content, and a government that requires federally-funded libraries to filter what the users can see or read. A user request will obviate that conflict.
In the end, then, filters are only a "default rule": They'll be there only unless and until you ask for their removal. That's not unusual: the law is full of "opt in/opt out" situations, in areas ranging from cable TV regulations to class action settlement agreements. And none of them is ever as serious as a situation in which the writer or reader has no option whatsoever...
UNITED STATES et al. v. AMERICAN LIBRARY ASSOCIATION, INC., et al.
No. 02-361. Argued March 5, 2003--Decided June 23, 2003
Chief Justice Rehnquist, joined by Justice O'Connor, Justice Scalia, and Justice Thomas, concluded:
1. Because public libraries' use of Internet filtering software does not violate their patrons' First Amendment rights, CIPA does not induce libraries to violate the Constitution, and is a valid exercise of Congress' spending power. [...]
2. CIPA does not impose an unconstitutional condition on libraries that receive E-rate and LSTA subsidies by requiring them, as a condition on that receipt, to surrender their First Amendment right to provide the public with access to constitutionally protected speech. Assuming that appellees may assert an "unconstitutional conditions" claim, that claim would fail on the merits. When the Government appropriates public funds to establish a program, it is entitled to broadly define that program's limits. [...] Justice Kennedy concluded that if, as the Government represents, a librarian will unblock filtered material or disable the Internet software filter without significant delay on an adult user's request, there is little to this case. [...]
[...] When a patron encounters a blocked site, he need only ask a librarian to unblock it or (at least in the case of adults) disable the filter. As the District Court found, libraries have the capacity to permanently unblock any erroneously blocked site, id., at 429, and the Solicitor General stated at oral argument that a "library may ... eliminate the filtering with respect to specific sites ... at the request of a patron." Tr. of Oral Arg. 4. With respect to adults, CIPA also expressly authorizes library officials to "disable" a filter altogether "to enable access for bona fide research or other lawful purposes." 20 U. S. C. §9134(f)(3) (disabling permitted for both adults and minors); 47 U. S. C. §254(h)(6)(D) (disabling permitted for adults). The Solicitor General confirmed that a "librarian can, in response to a request from a patron, unblock the filtering mechanism altogether," Tr. of Oral Arg. 11, and further explained that a patron would not "have to explain ... why he was asking a site to be unblocked or the filtering to be disabled," id., at 4. The District Court viewed unblocking and disabling as inadequate because some patrons may be too embarrassed to request them. 201 F. Supp. 2d, at 411. But the Constitution does not guarantee the right to acquire information at a public library without any risk of embarrassment....
It would seem fairly clear that the library does not, in fact, have the choice to say no when an adult asks them to disable the filters or allow access to sites for that particular session. Moreover, the library's legal representation should have known that; it's fairly plain in the language of the decision that not only can a patron ask for the software to be disabled while they're using the computer, they also don't have to give a reason.
It will be interesting to see how this decision goes forward. This would seem to represent on its face Justice Kennedy's "as-applied challenge" as noted in his concurrence: If some libraries do not have the capacity to unblock specific Web sites or to disable the filter or if it is shown that an adult user's election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge, not the facial challenge made in this case. Logically, the library district should lose at the district court level, and that will be an end to it.
The district did change its software filters -- there's a suggestion that the libraries were simply unable to turn filtering off because of the particular type of software used -- but it didn't change its policy. Frankly, the library district seems to have a losing case no matter how you look at it, and I'm kind of surprised that they didn't simply say, "Yes, you're right and we were wrong." The only thing I can think is that they're trying to fight for the right to make policy, no matter how wrongheaded.
Posted by iain at November 20, 2006 10:50 AM
