Internet & First Amendment in Speech - Topic FAQs


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.

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)

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)

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)

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)

Would filtering the Internet at public colleges and universities violate the First Amendment?

Unfortunately the answer to this is unclear. So far only one state — Virginia — has passed a law allowing public colleges and universities to filter the Internet.

In 1996, Virginia passed a law that “restricts access by state employees to lascivious sexually explicit material on computers owned or leased by the state.”

Access to such material may be allowed if it is part of an “agency approved research project” and permission is granted by a supervisor. The law was challenged by six state university professors on grounds that the law unconstitutionally interfered with their research and teaching.

The case was heard by the full 4th U.S. Circuit Court of Appeals, which in an 8-4 decision, held the statute to be constitutional. The court had to determine if the statute regulated speech made by public employees, in their role as private citizen, on matters of public concern. The critical determination, according to the court, “is whether the speech is made primarily in the [employee’s] role as citizen or primarily in his role as employee.” The court found in its 2000 ruling in Urofsky v. Gilmore, that the speech at issue — “access to certain materials using computers owned or leased by the state for the purpose of carrying out employment duties” — was clearly made in the employee’s role as employee. Therefore the statute “does not affect speech by [the professors] in their capacity as private citizens on matters of public concern” and thus “does not infringe the First Amendment rights of state employees.”

The professors in Urofsky had also argued that the statute was unconstitutional because it infringed on their First Amendment right to academic freedom. The 4th Circuit judges rejected this argument, saying that their review of the law lead them to conclude that the right to academic freedom was held by the university and not the individual.