Burning Cyberbooks in Public Libraries: Internet Filtering Software vs. the First Amendment
Semitsu, Junichi P., Stanford Law Review
INTRODUCTION: BURNING LIBRARY BOOKS WITHOUT CREATING SMOKE
Imagine your local public library, like many of the 15,718 public libraries in the United States,(1) has adopted the American Library Association's (ALA) Library Bill of Rights, which reflects a strong anti-censorship position.(2) Despite this strong "freedom of ideas" creed, however, the local library board, strapped with limited resources, has generally refrained from ordering books or materials deemed sexually explicit or otherwise offensive under community standards. Accordingly, The Anarchist's Cookbook, Madonna's Sex, Mein Kampf, or Hustler cannot be found on any of the shelves. While a few patrons have complained about the board's refusal to order various materials, the city attorney, relying upon Justice Blackmun's language in Board of Education v. Pico, continues to defend the library's right to make "politically neutral" decisions in "choos[ing] one book over another"(3) and maintains that the First Amendment is only implicated if the library removes books from the shelves.
Suddenly, the local library, which has never faced any serious controversy or litigation, ends its tranquil existence when it decides to expand into cyberspace. The library has obtained government funding to purchase several computers to function as Internet access terminals. Consequently, library patrons can use the World Wide Web to gain access to new virtual libraries. They view live photos of NASA space exploration, research new scientific topics in Encyclopedia Britannica On-Line, and check the status of proposed congressional legislation through government websites.
However, the librarians discover that several young children, teenagers, and adults alike use these computers to view and download significant amounts of pornography and other indecent material. Indeed, the library's usage statistics suggest that users do not visit the White House website as frequently as they visit the Penthouse website. Some patrons, including children, visit sites about everything from masturbation to the Aryan Nation to "Reenacting Columbine" to "How to Get a Concubine" to fake nude photos of Britney Spears. In some cases, patrons are unintentionally assaulted with obscene images after a prankster switches the web browser's default "home" page so that Netscape opens with a live video feed of bestiality.
Nonetheless, the library defends its open-access policy, stating that the library does not act in loco parentis. But within days, community members bombard the library and other city officials with an avalanche of complaints. The local newspaper editorial points out that the public library is the only place in town to view the pornographic film Pocahotass and read instructions on how to make a Molotov cocktail. The local Jewish Community Center expresses outrage that an unknown patron tampered with the library web browsers so it automatically opened with a website devoted to Adolf Hitler's writings. One parent even threatens to file suit for providing harmful materials to her children.
Under significant pressure, the library decides to install commercial blocking software on all of its computers, despite the violation of American Library Association policy. The library sets the filtering program at the most restrictive level so as to block out websites that contain "sexual acts" and "nudity," as well as those sites that involve "intolerance," "alcohol and tobacco," and "illegal gambling." The library proclaims that its computers are now family-friendly.
Within a few hours of installation, many library users cry censorship. Patrons find themselves banned from substantial portions of cyberspace, including fairly innocuous areas--sites providing information on breast cancer, a site offering updates on upcoming gatherings of the local Gay and Lesbian Country-Western Line-Dancing Club, and any site involving the town of Intercourse, Pennsylvania. …