Purchase of Internet Blocking Software by Public Libraries Is Unconstitutional: A Briefing Paper
Wallace, Jonathan D., Australasian Public Libraries and Information Services
Abstract A summary of the legal precedents establishing that the installation of internet blocking software by US public libraries is unconstitutional under the First Amendment. It is contended that the blocking of a web site is analogous to the removal of a book from the shelf
The following is intended for use by free speech advocates to oppose the
installation of blocking
software such as Cyberpatrol, Surfwatch, NetNanny or Cybersitter in public
libraries. Permitted uses
include basing your own correspondence or documents upon the research
presented here, excerpting this
document, or presenting it in its entirety to the people you are trying to
influence. Please redistribute
Editor's note: Does any Aplis reader know of attempts to define the
legality of blocking software in
Australia and New Zealand?
Public libraries in Austin, Boston and elsewhere have decided to install blocking software on computers connected to the internet. Other libraries around the United States are considering purchasing such software. The purpose of this paper is to summarise, for readers who are not themselves attorneys, the legal precedents that establish that the installation of blocking software by public libraries is unconstitutional under the US First Amendment.
Blocking software is defined as software products published by commercial software publishers which do any of the following: block access to internet sites listed in an internal database of the product; block access to internet sites listed in a database maintained external to the product itself; block access to internet sites which carry certain ratings assigned to those sites by a third party, or which are unrated under such a system; scan the contents of internet sites which a user seeks to view and block access based on the occurrence of certain words or phrases on those sites. Blocking software products currently on the market include Safesurf, Surfwatch, NetNanny, CyberPatrol and Cybersitter.
It has been widely reported recently that these products go far beyond blocking pornography. In fact, most block sites containing speech which is clearly First Amendment protected, such as the National Organization for Women site (http://www.now.org), blocked by Cybersitter, and the Electronic Frontier Foundation archive (http://www.eff.org), blocked by CyberPatrol. More information on political and lifestyle sites blocked by these products is available on the Peacefire web pages , and in The ethical spectacle, maintained by the author of this paper -- both of these sites were themselves blocked by Cybersitter for their criticism of the product.
Public library as a branch of government Most advocates of the use of blocking software by libraries have forgotten that the public library is a branch of government, and therefore subject to First Amendment rules which prohibit content based censorship of speech. These rules apply to the acquisition or the removal of internet content by a library. Second, government rules classifying speech by the acceptability of content (in libraries or elsewhere) are inherently suspect, may not be vague or overbroad, and must conform to existing legal parameters laid out by the Supreme Court. Third, a library may not delegate to a private organisation, such as the publisher of blocking software, the discretion to determine what library users may see. Fourth, forcing patrons to ask a librarian to turn off blocking software has a chilling effect under the First Amendment. These points are each discussed at greater length, with citations to significant cases, below.
1 The Pico Case bans the use of blocking software in libraries In the leading case of Island Trees Board of Education v Pico, 457 US 853 (1982), the local board ordered removal from the school library of books including Bernard Malamud's The fixer and Richard Wright's Black boy. …