Filtering programs: Protecting people from porn or creating constitutional concerns?

Friday, February 20, 1998


To filter or not to filter? That’s the question public libraries confront in the cyberspace age. Will our libraries become intellectual safety zones if we filter or adult bookstores if we do not?


Public libraries that provide Internet access face these difficult questions and have become the latest forum for the struggle between those promoting cyber-liberties and those advocating for controls on indecent expression. Libraries from Boston to Seattle have addressed pornography concerns by considering the installation of software programs that separate “appropriate” from “inappropriate” speech.


However, the use of blocking software in these public places raises constitutional concerns about governmental restrictions on access to information. Citing the First Amendment, a group of citizens in Loudoun County, Va., has filed the first lawsuit against a library board of trustees over a policy of mandatory filters.


Filtering software programs—Cybersitter, X-Stop, Net Nanny, Surfwatch and CyberPatrol, to name a few—restrict access to certain objectionable content or web sites on the Internet.


Free-speech advocates deplore any attempt to close off access to information on this newest communications medium. The decency folk counter that the undeniably informative value of the Internet is sabotaged by the insidious spread of pornographic and other material inappropriate for children. The familiar zero-sum game of free speech versus protection of minors that long ago arose in both the print and broadcast media has resurfaced in cyberspace.


The free-speech crowd rejoiced last June after the U.S. Supreme Court struck down the flawed Internet indecency law known as the Communications Decency Act. That decision—Reno v. ACLU—was hailed without much exaggeration by one legal expert as the “legal birth certificate of the Internet.”


In the wake of this resounding defeat, several family organizations and government institutions have proposed the apparently constitutional solution of filtering software. For instance, the National Law Center for Children and Families argues that filtering software is “the only method” that “protects minors and unconsenting adults from exposure to pornographic materials, while still providing access to the Internet.”


Other groups, such as the American Library Association (ALA) and the American Civil Liberties Union (ACLU), contend that mandatory use of filtering software at public libraries presents First Amendment problems. The ALA points out that public libraries, as government institutions, must not unconstitutionally censor material based on viewpoint or content. In a briefing paper, the ACLU also opposes filtering programs in public libraries.


It is apparent that the installation of blocking software at public library terminals at the very least implicates the First Amendment.


First of all, public libraries are funded by the government and are, therefore, subject to the First Amendment prohibition against government abridgments of speech. Second, the First Amendment generally prohibits censorship of speech based on content.


Even indecent speech (unlike so-called “obscene” speech) is protected by the First Amendment. Furthermore, over 40 years ago the U.S. Supreme Court warned that the government may not “reduce the adult population to … only what is fit for children.”


Library policies which mandate the use of blocking software restrict speech based on its content. The appeal of filtering programs is that they appear to be a more palatable form of censorship than the CDA, which imposed criminal penalties for the display of indecent or patently offensive material.


Though filtering programs purport only to segregate adult-oriented material from material suitable for children, in fact they prohibit adults and minors from accessing information clearly protected by the First Amendment. Blocking programs block far more than pornographic web sites. According to cyberlaw expert Jonathon Wallace, the web sites of the National Organization for Women site and the Electronic Frontier Foundation are two prime examples of sites blocked by certain filtering programs. Because of this, attorney Robert Peck calls filters “crude tools that exclude … a vast range of material that may be offensive to some but remains constitutionally protected.”


The very purpose of a library argues against mandatory filtering restrictions on information. Libraries should serve as warehouses of knowledge, not tools of censorship.


In a 1982 First Amendment case, Board of Education v. Pico, the U.S. Supreme Court emphasized the “special characteristics” and “unique role of the library” as a “principal locus” of freedom. The Court ruled that school officials had violated the First Amendment by removing books from a school library because they disagreed with the ideas conveyed in the books.


Some contend the Pico case counsels against mandatory filtering programs at library Internet terminals. The reasoning goes like this: If the First Amendment prevents school officials from removing books from library shelves, it should also prevent public libraries—which should offer far more material than school libraries—from removing information from patrons.


Other groups, such as the National Law Center for Children and Families, counter that the Pico case “specifically supports the use of filtering software.” The NLC points out that the Pico case held that there would be no First Amendment violation if school officials removed books that were “pervasively vulgar.”


Perhaps the issue can be settled—as it has been at some libraries—by providing filtering software only at the request of a patron, or by providing both an unfiltered terminal and a filtered terminal. One public library in California recently removed filters in response to the threat of an ACLU lawsuit.


One lesson emerges from the filtering controversy: The battle between free speech and protection of minors has, if anything, escalated following the demise of the CDA’s Internet indecency provisions.


Before installing filtering software on all computer terminals, public librarians should recognize the special characteristics of libraries and of the Internet, a medium which federal Judge Stewart Dalzell called “the most participatory form of mass speech yet developed.” Our well-intentioned zeal to protect our children should not give license to unbridled censorship at the very places where information should be most available.


As the U.S. Supreme Court stated in the CDA case: “It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults.”