Posted by Eugene Volokh:
ACLU Sues Library for Allegedly Blocking Access to Second Amendment Foundation
Site
http://volokh.com/archives/archive_2006_11_12-2006_11_18.shtml#1163789232
(among others). The [1]the ACLU's Complaint claims that the libraries
are using filters to block certain material, and refusing to manually
unblock the material on the user's request:
[T]he NCRL has configured its SmartFilter software to block Web
sites in the following categories, or in categories equivalent to
the following categories: Alcohol, Anonymizers, Chat, Criminal
Skills, Dating/Social, Drugs, Extreme, Gambling, Game/Cartoon
Violence, Gruesome Content, Hacking, Hate Speech, Malicious Sites,
Nudity, P2P/File Sharing, Personal Pages, Phishing, Pornography,
Profanity, School Cheating Information, Sexual Materials, Spyware,
Tobacco, Violence, Visual Search Engine and Weapons. [This is
necessarily a tentative allegation, based on the ACLU's current
information and belief; presumably discovery during litigation will
confirm or correct this.]
Plaintiff Sarah Bradburn has attempted to use computers maintained
by the NCRL to conduct Internet research -� particularly regarding
alcohol and drug-addiction topics -� in connection with academic
assignments. When Ms. Bradburn tried to access material and obtain
information relating to youth tobacco usage, the Internet filters
that the NCRL had installed on its computers prevented her from
doing so....
Plaintiff Pearl Cherrington is a professional photographer, her
work consisting mostly of landscapes and outdoor scenes. She has
attempted to use computers maintained by the NCRL to conduct
Internet research and obtain information regarding art topics �
including art galleries that might be interested in displaying her
work. She has also attempted to use NCRL computers to conduct
Internet research and obtain information about health topics. Her
ability to conduct her research and obtain information via the
Internet has been restricted by the filters that the NCRL has
installed on its computers....
Plaintiff Charles Heinlen has attempted to use computers maintained
by the NCRL to conduct Internet research and obtain information on
topics relating to firearms. His ability to conduct research and
access information related to firearms has been restricted by the
Internet filters that the NCRL has installed on its computers. The
filters have also denied Mr. Heinlen access to various dating
sites, publications such as Soldier of Fortune Magazine
(www.sofmag.com), the Web log (or �blog�) that he maintains at
www.myspace.com, and photographs embedded in commercial emails that
are sent to his Hotmail and Yahoo! email accounts....
One of the publications that Plaintiff SAF sponsors is Women &
Guns, a magazine with its own Web site, located at
www.womenandguns.com. Women & Guns is written and edited by women,
for women. It covers topics such as self-defense, personal
protection, recreational shooting, new products and legal issues.
Women & Guns� Web site has been blocked by the Internet filters
that the NCRL has installed on its computers. The information
contained in Women & Guns is protected by the First Amendment of
the Unites States Constitution and by Article I, Section 5 of the
Washington State Constitution. Because the NCRL�s Internet filters
have blocked access to www.womenandguns.com on the NCRL�s
computers, SAF has been prevented from communicating with Internet
users in North Central Washington who rely on public library
computers for Internet access.
Whether libraries have a First Amendment duty to disable filters on
patron request is an unsettled question; the Court's [2]United States
v. American Library Ass'n (2003) left the matter unresolved. [3]The
ACLU's Web page also says that "the U.S. Supreme Court has interpreted
the [federal library funding law that requires some filtering out of
sexually explicit material] to mean that libraries should disable
those filters upon the request of an adult," but in my view that's an
overreading of ALA. Those who want to read my quick summary of the
current state of the Supreme Court's law of government-funded speech
can click below. (Note that the summary is from the relevant chapter
of my First Amendment textbook; it is necessarily sketchy, since it's
aimed at students who will read the summary and then [supposedly] read
the cases that the summary refers to.)
([4]Show summary.)
Rules:
1. The government itself can say whatever it wants to (setting aside
possible Establishment Clause constraints on pro- or anti-religious
speech), even if this favors one viewpoint over another.
2. The government has largely unlimited power to control what is said
in its official organs (newspapers, radio broadcasts, and the like) or
in organs that it officially endorses, even if this control is
exercised in a viewpoint-based way.
3. The government may also communicate its message by paying private
parties to convey the message; and it may require that the payment be
used only for the speech that it wants communicated (even if the
restriction is viewpoint-based). Rust v. Sullivan (1991).
� But this is limited to situations where the program is genuinely
�designed ... to promote a governmental message� (such as the
�programmatic message recognized in Rust�) rather than just �to
facilitate private speech,� Legal Servs. Corp. v. Velazquez (2001)��.
6. Also, the government may not impose viewpoint-based restrictions
when it �create[s] a program to encourage private speech� that
�indiscriminately �encourage[s] a diversity of views from private
speakers�� (NEA v. Finley (1998); see also Rosenberger v. Rector
(1995); Velazquez) -- for instance, when it offers a subsidy to any
student group that wants to start its own non-university-endorsed
newspaper.
� These programs may be treated as designated public fora, or at least
nonpublic fora (where there would still be a viewpoint-neutrality
requirement).
� Rosenberger and Velazquez are the classic examples of this; Rust and
Finley are the classic examples of the opposite; when deciding whether
a program is seen as constituting �government speech� or as
�encourag[ing] a diversity of views from private speakers,� you should
compare and contrast with these cases.
7. What if the government creates a program to encourage private
speech, but the program allocates scarce resource on the basis of some
judgment of �quality,� e.g., the artistic excellence judgment in
Finley, rather than �indiscriminately� to an entire class of speakers
(as in Rosenberger)?
� The Court suggests that �invidious viewpoint discrimination� in this
context may be impermissible, but the government may certainly
discriminate in part based on �decency and respect,� and the
government may �selectively fund a program to encourage certain
activities it believes to be in the public interest.�
� What �invidious viewpoint discrimination� means is not well-defined,
though perhaps future cases will clear it up. For now, all we know
from Finley is that a preference for �decency and respect� is not
invidious viewpoint discrimination, but an attempt to �suppress[] ...
dangerous ideas� probably would be.
([5]Hide.)
Nonetheless, while the ACLU's First Amendment argument is far from an
obvious winner, the case is important and interesting (and will be
even more so if it ends up leading to an appellate decision, rather
than just settling). And it's good that the ACLU is exposing such
practices on the library's part, practices that strike me as bad
service to Washington residents, even if they are ultimately found to
be constitutionally permissible.
References
1. http://new.aclu-wa.org/document.cfm?id=558
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=539&invol=194
3. http://www.aclu-wa.org/detail.cfm?id=557
4. file://localhost/var/www/powerblogs/volokh/posts/1163789232.html
5. file://localhost/var/www/powerblogs/volokh/posts/1163789232.html
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