South Dakota to require public schools, universities to filter Internet access

Thursday, March 11, 1999

South Dakota Gov. William J. Janklow has signed into law a bill that requires public schools — including state-owned universities — and libraries to protect minors from obscene materials on the Internet.

The law, which the governor signed earlier this month, provides that public schools in the state must either equip computers with blocking software or implement local policies to restrict children's access to obscene materials.

Another section of the law requires that public libraries “develop and implement by Jan. 1, 2001, a local policy that establishes measures to restrict minors from computer access to obscene materials.”

Under the law, any public library or public school that adopts an Internet access policy to protect minors cannot be held liable “for any damages” which result from a child accessing obscene materials through a public school or public library computer.

John Paulton, executive director of the South Dakota Family Policy Council, applauded both the Legislature and the governor. “With South Dakota schools among the most wired in the nation, it's important to take steps to protect our children from the harmful side of the Net,” he said in a news release.

“This really is a win-win bill for everyone involved,” Paulton said. “There has been great cooperation from virtually everyone to get this bill passed. It will take continued cooperation to make sure that it is effectively implemented. We look forward to working with parents, local libraries and schools to help make that happen.”

David Burt, president of Filtering Facts, also supports the legislation. “This is a good law because it changes the debate from whether filters work to whether schools and libraries should protect children from illegal materials.”

Burt said that the law's use of the “existing legal standard” of obscenity, rather than language such as “inappropriate,” should insulate it from attack by filtering opponents.

However, Jonathan Wallace, a founding member of the Censorware Project, a group that opposes the use of blocking software in public institutions, says the law is unconstitutional.

“Laws requiring public schools to install censorware will be held unconstitutional for two reasons,” Wallace said. “First, these laws mandate a one-size-fits-all solution that treats 17-year-olds the same as 6-year-olds.”

The second reason the law is unconstitutional, Wallace says, is the “weakness of censorware products,” which block too much and too little material simultaneously.

Filtering programs block material that minors, especially older minors, should have access to and don't block some material that younger minors should not see, he says.

Larry Ottinger, senior staff attorney with People for the American Way, agreed that the legislation posed First Amendment problems.

“The law is part of a disturbing trend in which legislators are not paying enough attention to the serious First Amendment and local control issues raised by these measures,” he said.

“This law is bad policy and usurps control from both local librarians and parents,” he said.

Rep. Roger Hunt, one of the measure's co-sponsors, says the law applies to public universities if they have minors on their campuses. “If there are minors on that state university campus, this law would apply,” he said.

However, Ottinger says that applying the law to state universities “certainly raises further First Amendment concerns.”

“Public access to information and the ability to research and discuss important issues of the day is an important facet of the public institution,” he said. “Applying this bill to state-owned universities makes it more egregious.”