Libraries & First Amendment horizon

Monday, February 3, 2003

Washington State’s highest court is set to rule on whether a public library may refuse to turn off its Internet filters when asked.

Patrons of a Wenatchee-based library system argue the practice violates both the Washington and U.S. constitutions, and that the filters must be disabled upon request from an adult.

The federal Children’s Internet Protection Act requires libraries to install filtering software as a condition of receiving federal funds. The language of CIPA allows — but does not require — librarians to turn the filters off when an adult requests it. This case, Bradburn v. North Central Regional Library District, appears to be the first in which a library policy of refusing to disable filters has been challenged on free-speech grounds.

The case originated in federal district court. The district judge, however, asked the Washington Supreme Court to rule on the state constitutional claim before he took up the federal First Amendment issue.

Washington’s Constitution has been interpreted to provide greater protection against overbroad restrictions on speech than does the First Amendment. It provides that, “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.”

If the Wenatchee policy is found not to violate the state constitution, the case will return to federal court to determine whether the policy runs afoul of the First Amendment.

The U.S. Supreme Court has found that CIPA itself does not violate the First Amendment, in United States v. American Library Association (2003). Justices Anthony Kennedy and Stephen Breyer wrote concurring opinions saying they thought it was important to allow filter disabling.

“Perhaps local library rules or practices could further restrict the ability of patrons to obtain ‘overblocked’ Internet material,” Breyer wrote. “But we are not now considering any such local practices. We here consider only a facial challenge to the Act itself.”

The Washington Supreme Court heard oral arguments June 23, 2009.