Academic journal article Texas Journal on Civil Liberties & Civil Rights

"Please Disable the Entire Filter": Why Non-Removable Filters on Public Library Computers Violate the First Amendment

Academic journal article Texas Journal on Civil Liberties & Civil Rights

"Please Disable the Entire Filter": Why Non-Removable Filters on Public Library Computers Violate the First Amendment

Article excerpt

I. INTRODUCTION

On August 11, 2004, police in Phoenix, Arizona arrested Charlton Glenn Ward, a convicted child molester on parole, on six counts of sexual exploitation of a minor.' During their investigation police officers discovered that Ward possessed child pornography, which he claimed he downloaded and printed from a computer at the Phoenix Public Library.2 In the days after this revelation, citizens of Phoenix understandably were distressed that a public library's computer could be used so easily for such an illicit purpose. In response, Phoenix Mayor Phil Gordon quickly announced plans for a new policy which would require Internet filters to be installed on all Phoenix public library computers.3

Mayor Gordon's idea quickly became a reality; on September 8, 2004, the Phoenix City Council unanimously voted to bar both minors and adults from unrestricted Internet access on all public library computers.4 Under this new policy, which "appears to be the first of its kind among the nation's largest cities,"5 not only are unfiltered computers unavailable at Phoenix public libraries, but librarians cannot remove Internet filters from library computers upon an adult patron's request. Phoenix's policy is significant, not only because of the lack of comparable policies in other large cities (although that soon may change),6 but also because it is at odds with the 2003 Supreme Court decision, United States v. American Library Association.1 In American Library, the majority opinion suggests that, while conditioning federal grants on the presence of library filters is constitutional, removing a librarian's discretion to disable a filter upon an adult patron's lawful request is impermissible.8

The crux of the controversy focuses on the civic role that libraries play in communities. While some view libraries as public spaces with a duty to be "family-friendly," others view libraries as research centers obligated to provide constitutionally protected9 information.10 At the center of the melee is the librarian-the gatekeeper of library materials. Phoenix's new mandatory Internet filtering policy raises a fundamental question: Do policies such as this unduly remove librarians' discretion to disable filters upon an adult patron's lawful request?

This question has more than mere theoretical importance because of the realities of Internet filtering technology. Even if library Internet filters could adequately block materials that are not constitutionally protected (such as obscenity, child pornography, or, in the case of minors, material that is "harmful to children")," a critical weakness of filters is their pervasive tendency to "overblock" 12 -that is, to deny users access to materials that are constitutionally protected by the First Amendment.13 When an Internet filtering system blocks "pornographic" or "sexual" content, the subsequent over-blocking of materials wrongly placed in these categories impairs patrons' ability to conduct lawful research.14 Particularly at risk are materials of significance to women, teenagers, and sexual minorities, such as Web sites offering information on women's health, safe sex, sexually transmitted diseases, and homosexuality.15 Indeed, one of the most oft-repeated fears of over-blocking is the potential denial of access to information about breast cancer.16 Further, future improvements in filtering technology will not solve over-blocking, since automated filtering cannot function as a complete replacement for individualized human judgment.17

Using Phoenix's new library Internet filtering policy as an illustration of one that other cities may choose to follow in the near future, this Note argues that mandatory, non-removable Internet filters in public libraries are unconstitutional under the Supreme Court's current jurisprudence. Specifically, this Note argues that: (1) Phoenix's new policy violates essential assumptions voiced by the Supreme Court in United States v. …

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