June 1, 2001
Cyber Law Journal: Controversial Ruling on
Library Filters
By CARL S. KAPLAN
In early 1997, the Minneapolis Public
Library began giving its patrons unfettered
and unlimited access to the Internet. The
library's First Amendment-inspired policy
was intended to provide a needed service to
the community. But Wendy Adamson, a
reference desk librarian at the library's central
branch, said it effectively made her working
life a nightmare, and federal officials appear
poised to agree with her.
Acting on complaints from Adamson and
other librarians at the city's central branch
library, the Equal Employment Opportunity
Commission's Minneapolis office ruled last
week that the library, by exposing its staff to
sexually explicit images on unrestricted
computer terminals, may have allowed for a
hostile work environment. The blockbuster
finding, issued on May 23 following an
investigation by the agency, came in response
to complaints filed a year ago by Adamson
and 11 of her colleagues.
Free speech advocates quickly expressed
concern that the E.E.O.C.'s decision is a
dangerous precedent that could pressure
libraries to aggressively monitor patrons'
viewing habits or install filtering software as a
means to ward off potential discrimination
suits. But Adamson and Bob Halagan, the
lawyer for the librarians, hailed the
commission's finding as a victory for common
sense.
Adamson said the complaints were filed only
after she and other librarians repeatedly
notified library officials about their concerns
and detailed what they said were the new
policy's negative impact on staff and patrons.
"Our downtown library became a club for a
large number of men who were viewing pornography all day,"
Adamson, who has
been a librarian for over 30 years, said in an interview.
"I'd see these men at the
door at 9 a.m. and some of them would still be there at 9 at
night."
Adamson said that while she was sitting at her workplace and
doing her job, she
would look up and see "horrible" stuff on the screens of
nearby terminals. "I'm
talking about torture and sex with animals," she said. It
was "really demoralizing and
depressing."
Computer printouts of sexually explicit pictures littered
the library, Adamson said.
She said she saw some men at computer terminals engage in
what appeared to her
to be masturbation and that computer users would verbally
abuse her when she tried
to enforce time limits.
The worst part of her day, she said, was watching,
helplessly, as members of the
public -- including children -- encountered unwanted sexual
images on terminals.
Often, she said, a patron who wanted to do conventional
research would approach
a terminal and find that it was locked onto a sexually
explicit site -- owing to a
"quicksand" feature some porn sites use that prevents users
from leaving the site.
She said she repeatedly had to calm the patrons and reset
the terminal's browser.
"We were told [by administrators] to avert our eyes. But we
were surrounded by it,"
she said, adding that library officials did not respond to
staff complaints about the
policy.
The director of the Minneapolis Public Library, Mary L.
Lawson, did not return
telephone calls. The library's spokesperson released a
statement, attributed to
Lawson, stating that the library would not comment on the
E.E.O.C.'s finding until it
had the opportunity to consult with its lawyer and trustees.
The statement noted, however, that last spring the library
adopted revised guidelines
for Internet use. Among other things, the new guidelines
include time limits, sign-up
procedures requiring identification, posted notices
prohibiting illegal Internet activity
and enforcement procedures.
The E.E.O.C.'s ruling, called a "determination," is a
preliminary conclusion by the
agency that there is reason to believe discrimination
occurred. The commission will
next attempt to resolve the matter through mediation.
Adamson said the E.E.O.C.
had privately suggested to the library that it pay each of
the 12 employees $75,000
in damages.
If the agency's mediation efforts fail -- if the library
declines to enter settlement
discussions or if the E.E.O.C. is unable to secure an
acceptable settlement -- the
matter may be sent to the Department of Justice for possible
prosecution. In
addition, the librarians may elect to directly sue the
library in court.
David Rucker, an enforcement supervisor for the E.E.O.C.'s
Minneapolis office,
declined to confirm or deny the E.E.O.C.'s investigation of
the library, citing his
office's policy of confidentiality.
Jan LaRue, senior director of legal studies for the
conservative Family Research
Council, which has consistently lobbied for governmental
regulation of Internet
decency, said that the E.E.O.C.'s finding will make
libraries across the country "sit
up and take notice."
"When libraries face up to the fact that they face a loss of
revenues" from potential
discrimination suits, they will begin to restrict patrons'
access to sexually explicit
material on the Internet, she said. LaRue said that she
believed nothing less than
filtering software will solve the problem of a library's
hostile work environment.
"The Minneapolis Public Library's current policy is to tell
people, 'Don't touch the
paint,'" LaRue said. "But people still touch the paint. It's
much more effective to
keep [sexually explicit images] from coming up on the screen
as much as possible."
Eugene Volokh, a law professor at U.C.L.A. who has written
extensively about the
Internet, free speech and workplace harassment law, agreed
that the E.E.O.C.'s
finding would put pressure on library trustees to adopt
filtering. He added, however,
that he disagreed with the government's policy of forcing
libraries, under the threat of
discrimination law penalties, to restrict the freedom of
library users to view legally
protected but offensive material.
Of course, a library that uses filtering software on all its
terminals risks inviting -- and
losing -- a First Amendment lawsuit, Volokh said, alluding
to a 1998 federal district
court decision declaring that the filtering policy of a
public library in Loudoun
County, Va., was unconstitutional.
But losing a First Amendment lawsuit will subject a library
to "nominal damages,"
Volokh said. Losing a Title VII discrimination lawsuit can
result in damages "with
lots of zeros in it," he said. Faced with the choice between
two equally hazardous
legal alternatives, library trustees will logically opt to
install filters and ward off
harassment suits with potentially massive damages, he said.
Ann Beeson, a lawyer with the American Civil Liberties Union
who specializes in
cyberlaw cases, said that a charge of sexual harassment is
often used as a pretext to
justify library filtering. The Loudoun County library's
filtering scheme was cast in the
form of anti-harassment policy, she said. But the judge in
that case found that there
was no hard evidence that any librarian was at substantial
risk of harassment from
viewing sexual images. Beeson said that, even today,
millions of library patrons use
unrestricted Internet terminals without harming librarians.
In any case, she said, there
are better ways to avoid a hostile environment for
librarians than the use of filtering.
Acceptable means include the use of blinders or "privacy
screens" on terminals.
A new law that requires public libraries and schools that
receive federal
telecommunications funds to install Internet blocking
software goes into effect in
July, 2002. The federal law was challenged on First
Amendment grounds in March
by the ACLU and the American Library Association. Still,
Halagan, the librarians'
lawyer in the Minneapolis matter, said that it is a mistake
for people to reduce the
Minneapolis controversy to a filtering vs. non-filtering
debate. "As a matter of fact,
my clients are split on the subject," he said.
"What this determination will do is cause other libraries to
think about what
obligations they have [to their employees] and to balance
that with the First
Amendment," he said. "The answer could be separate computers
for children,
filtering, limiting printer access, posting notices or
working with local police. It's a
complex issue." Halagan said that the Minneapolis library's
revised policy, which
went into effect shortly after his clients filed their
complaints, has resulted in a
much-improved work climate, but that more needed to be done.
For her part, Adamson said that she hopes the ruling will
empower other librarians
who feel harassed to speak up.
"Our experience will be felt by other people in other
libraries," she predicted. She
said that when speaking about this subject, she could not
help recalling an incident
when she was helping 12-year old girl with a term paper. She
said they were
standing by a bookcase, their backs to a computer terminal.
Adamson said that,
when she turned and saw that the user of the nearby computer
was looking at a
picture of a "naked woman tied up," she thought up a ruse to
escort the girl to
another part of the library so she would not see the
picture. "This happened all the
time. It was so stressful."
-----------------------------------------------------------------------------------
Carl S. Kaplan
"Cyber Law Journal"
Web site of The New York Times (www.nytimes.com)
e-mail: [EMAIL PROTECTED]
tel.: (212) 666-0407
******************************************************************
