The First Amendment's Limitations on the Use of Internet Filtering in Public and School Libraries: What Content Can Librrians Exclude?
Nadel, Mark S., Texas Law Review
The explosion of the Internet-with its cornucopia of free information-has presented libraries with the opportunity to offer their patrons access to the most current and relevant information on thousands of important subjects. Among the millions of useful pages posted on the World Wide Web, however, a small percentage contain material that is obscene1 or libelous, promotes fraud, or is considered inappropriate for children.
Many libraries have sought to screen out "adult" material-often in response to local pressure-by purchasing software filters to control which web pages can be viewed on their Internet terminals.2 About a dozen have policies of providing only filtered access.3 Meanwhile, a number of federal and state legislators and local authorities have introduced bills that would require schools and libraries to use filters on Internet access links.' The American Library Association (ALA), however, finds that "the use of filtering software by libraries to block access to constitutionally protected speech violates the Library Bill of Rights, "5 and the American Civil Liberties Union (ACLU) contends that "in the hands of government, blocking software is nothing more than censorship in a box. "6
Meanwhile, in the 1998 case Mainstream Loudoun v Board of Trustees of the Loudoun County Library,7 a federal district court in Virginia found that a library's use of a software filter violated the First Amendment.8
This Article contends that the First Amendment permits libraries to use filters as long as those filters are not employed to favor one sociopolitical viewpoint over another. Librarians may install filters to help their patrons use the library's computer terminals and Internet links to gain easier access to those categories of content the librarians choose to include in their collections. Thus, if patron use of terminals to monitor baseball games or to view websites advertised as XXX significantly inhibits access by researchers, libraries may use filters to screen out such sport play-byplay and XXX websites.9 Libraries may also use filters to help diminish children's access to adult material for children whose parents do not grant permission for such viewing.10
To prevent filters from being used to exclude viewpoints opposed by the software designers or other third parties, the First Amendment should be read to require that libraries using filters meet three standards. Libraries should have to (1) retain final say over selection decisions, (2) understand the criteria that the filter software uses to exclude content, and (3) have the resources to correct the viewpoint discrimination that the filters are likely to generate.
The Article reaches these conclusions by explaining why the same budgetary constraints that justify library selection decisions among books also justifies the use of Internet filters. Contrary to the rationale used in the Loudoun decision, there is no constitutionally significant difference between the library's discretion to manage its bookshelves and its discretion to manage its Internet access terminals. The First Amendment permits a librarian to purchase multiple copies of popular books to make preferred content more easily accessible to patrons, even though that necessarily entails declining to purchase even a single copy of many other books and thus "denying" patrons access to the latter. This same rationale permits a librarian to use filters to help ensure that preferred content will be more easily accessible to patrons, even if it necessarily involves denying them access to other constitutionally protected Internet content.
There are three kinds of filters that can be used to restrict Internet access. Content on the world wide web is posted on websites that have addresses called URLs (uniform resource locators). Each posting (whether of one or more "pages") usually has its own specific URL. The content of airy URL, meanwhile, can change dramatically from day to day. …