Does using filters to block parts of the Internet violate the First Amendment?

Not if parents install the filters at home, because in that case the government is not involved. Constitutional violations require state action or governmental involvement. The question becomes whether public schools or public libraries violate the First Amendment when they install blocking software on computers accessible by the public. In June 2003, the U.S. Supreme Court ruled in United States v. American Library Ass’n, Inc. that mandatory filtering in public libraries does not violate the First Amendment. The Court’s decision overturned a lower court ruling that such filtering was unconstitutional.

  Internet filters give librarians control in order to protect children from harmful material. What’s the objection?

The U.S. Supreme Court has acknowledged that the protection of minors is a compelling government interest. But, the Court has also ruled that protecting minors does not mean that the government has carte blanche to suppress the free-speech rights of adults and older minors. The problem with filters is that they block too much legitimate, constitutionally protected material. A federal court had ruled that less-restrictive alternatives to filtering exist, so that speech is not banned in such a broad swath. The Supreme Court, however, overturned that ruling.

  Who is affected by the U.S. v. ALA ruling?

People without other Internet access — at work or at home — are most affected. They are primarily the poorer, the less educated and members of minority groups. Judith Klug, director of the American Library Association’s Office for Intellectual Freedom, believes many libraries will turn down federal funding to keep unfettered access. But libraries in poorer communities won’t have that option, she said. (Associated Press)

  Can’t patrons ask librarians to override filters when mistakes are made?

The Supreme Court ruling in U.S. v. ALA says librarians may do so, but critics are concerned that patrons may be embarrassed to ask if they are researching a sensitive topic, such as testicular cancer or sexually transmitted diseases. Having to ask, critics say, also delays research when many patrons’ time on library computers is already limited by demand. Also, patrons may not know information is being blocked and thus would not know to ask. (Associated Press)

  After U.S. v. ALA, are there any other legal options?

Though critics failed to convince the high court that the Children’s Internet Protection Act is unconstitutional, they may still file a lawsuit later if they find specific examples of harm, such as a patron’s not being able to get a legitimate site unblocked promptly or at all. (Associated Press)

  How much influence do private companies have over access?

Vendors of filtering software have generally kept their criteria secret for proprietary reasons, leading to complaints that they may be pushing social agendas with no oversight. Filtering companies say their products can be customized, so a library may choose to override certain settings. One vendor, N2H2 Inc., says it has created an online database so customers may determine whether a particular site is blocked, though it offers few details about specifically why. (Associated Press)

  Did the Supreme Court decide that there can be no book censorship in public school libraries?

Not exactly. In the Pico case, the Court ruled that books could not be removed from a public school library unless they were educationally unsuitable or "pervasively vulgar." The ruling did not extend to the acquisition of books — leaving schools to decide which books they would purchase.

  How does the Patriot Act involve the First Amendment?

Supporters of the USA Patriot Act contend that the law is a necessary response to the post-Sept. 11 world that contains very real threats of international and domestic terrorism. Detractors contend that at least some provisions of the Patriot Act infringe on constitutional rights. Though many provisions of the Patriot Act more directly affect Fourth Amendment freedoms (the right to be free from unreasonable searches and seizures), some provisions implicate the First Amendment.

For example, Section 215 of the Patriot Act gives the FBI broad powers to obtain records from libraries, bookstores, businesses and other entities. According to the American Civil Liberties Union, which is challenging this section in a federal court in Michigan, this provision directly affects political and religious expression. An Internet service provider might be asked to turn over records relating to individuals who engage in political speech highly critical of the government. A mosque might be forced to turn over records of members who are targeted by law enforcement. Another provision of the Patriot Act provides that it is illegal to provide “material support” for terrorist groups, but defines “material support” to include “expert assistance and advice.” This expert assistance might include advice about international law.

On March 9, 2006, President Bush signed the USA Patriot Improvement and Reauthorization Act of 2005 (H.R. 3199) and the USA Patriot Act Additional Reauthorizing Amendments Act of 2006 (S. 2271). Several provisions of the act were reauthorized along with stronger requirements that the government must meet before it can access information. Nonetheless, the act still authorizes the government to obtain secret court orders to get library, medical and business records.

Under the reauthorization of Section 215, the FBI can obtain library records of anyone if the agency shows it has “reasonable grounds” to believe the records are “relevant” for an authorized investigation to “protect against international terrorism.” If a library merely provides Internet access, it cannot be asked to hand over information regarding a patron’s Internet use. However, if a library is an Internet service provider, the government can request such information. A person, such as a librarian, who receives a Section 215 order to disclose information, is limited to disclosing the receipt of the order to an attorney or to a “person to whom disclosure is necessary to comply with such order.” The reauthorization also allows those receiving a Section 215 order to challenge the “gag order” that accompanies all requests for information. However, those wanting to challenge the nondisclosure requirement of the order must wait a year to begin proceedings. A sunset provision for Section 215 sets it to expire Dec. 31, 2009.

At the signing of the act’s reauthorization, President Bush issued a signing statement saying that despite the law’s requirement for disclosure about government investigations, he would allow the executive branch to withhold information if he decided it would “impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive’s constitutional duties.” The Senate Judiciary Committee opened hearings in June 2006 regarding presidential signing statements.

  Have there been measures in Congress that would limit the Patriot Act?

Yes, numerous bills have been introduced in Congress either to revoke or modify certain powers granted to law enforcement by the Patriot Act. These have included:

  • S. 1695 — Patriot Oversight Restoration Act of 2003 (introduced Oct. 1, 2003, by Sen. Patrick Leahy, D-Vt.).
  • H.R. 3171 — Benjamin Franklin True Patriot Act (introduced Sept. 24, 2003, by Rep. Dennis Kucinich, D-Ohio).
  • S. 1507 — Library, Bookseller, and Personal Records Privacy Act (introduced July 21, 2003, by Sen. Russ Feingold).
  • S. 1709 — Security and Freedom Ensured Act of 2003 (introduced Oct. 2, 2003, by Sen. Larry Craig, R-Idaho).

Although none of the measures to curtail the Patriot Act have ever received congressional approval, some of the ideas outlined in them were incorporated into the bill Congress passed in March 2006 to renew the act. Members of Congress debated renewing provisions of the Patriot Act for more than six months before a compromise could be reached that balanced the concerns of supporters and opponents of the law. For example, individuals receiving Section 215 orders to disclose information are now able to challenge the “gag order” that accompanies it. This requirement is in line with court decisions that held that the gag orders were unconstitutional.

  If a public library allows groups to meet in its building, must it allow groups like the Ku Klux Klan? Can it set guidelines?

While no cases have dealt directly with the KKK and public libraries, similar cases have dealt with the underlying issue of whether individuals affiliated with religious or groups may have access to public facilities for meeting purposes. These cases demonstrate how courts will often look to see what kind of groups the public facility has allowed access to in the past. If the facility has allowed access to similar groups but has denied the current group’s request, then the court will often hold that viewpoint discrimination has been committed and that the denial violates the First Amendment.

For example, a case decided in 2006 dealt with religious worship services in rooms in a public library. The 9th U.S. Circuit Court of Appeals ruled in Faith Center Church Evangelistic Ministries v. Glover that city libraries can refuse to allow religious groups to worship in public meeting rooms. In this case, the Bush administration filed a friend-of-the-court brief on behalf of the Faith Center Church Evangelistic Ministries, stating that the government “has an interest in enforcement of First Amendment principles providing equal treatment of persons irrespective of their religious beliefs.”

In the 2001 decision Good News Club v. Milford Central School, the U.S. Supreme Court held that Milford, N.Y., school officials violated the Christian Bible club’s First Amendment rights by not allowing them to use school facilities for after-school meetings. The Court reasoned that the school committed viewpoint discrimination against the Bible club since the school had previously allowed other community and school groups to use the facilities.

In Moore v. City of Van, 238 F. Supp. 2d 837 (E.D. Tex. 2003), a group of individuals wanted to use a portion of the town’s public community center for a meeting that would involve religious songs and prayers. The federal district court held that the city violated the First Amendment rights of these individuals by denying them the right to use the community center for such purposes. The court explained that, on its face, the facilities-use policy did not contain exclusions, therefore making the center a public forum. However, in the past “the City has been consistent in denying use of the Center for religious purposes.” This is viewpoint discrimination and is in violation of the First Amendment.

In the 2005 decision Bronx Household of Faith v. NYC Board of Education¸ a federal district court ruled that the city of New York must allow religious groups to rent space in public schools for meetings. The court held that preventing the Bronx Household of Faith from meeting at the school was in violation of the group’s right to free expression. The group had wanted to hold Sunday meetings in a public school, and according to the U.S. District Court’s ruling, the city must allow them to do so.