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Filters and freedom: Why the Supreme Court upheld library limits
Inside the First Amendment

By Ken Paulson
First Amendment Center executive director

Lost amid the news coverage and talk-radio buzz concerning last week’s U.S. Supreme Court decisions on affirmative action was another important case, decided the same day.

You may have seen a headline along these lines: “Supreme Court Upholds Filters on Online Porn in Libraries.”

Not much of a surprise there. No matter how you view the Supreme Court, no one would expect these nine robed jurists to allow 8-year-olds to access pornography on computers at a public library.

Yet the scope of the Internet-filtering law passed by Congress and the path that the Supreme Court took to reach this decision may surprise you.

At issue was a congressional mandate conditioning federal funds for Internet access in public libraries upon the installation of filtering software on all library computers. The software — developed by private companies that do not disclose exactly which sites they target — is supposed to block obscene pornographic images.

However, as the Supreme Court acknowledged, the software is flawed. It blocks content that is neither obscene nor pornographic. Because it operates through a text search, it may block a Web site referring to Super Bowl XXX at the same time it blocks XXX entertainment. Educational sites about court cases involving pornography can be blocked, along with sexually explicit sites.

America’s librarians have struggled with these issues for some time and didn’t need the intervention of Congress. Many had already struck a middle ground and placed filters on terminals for children, while providing full Internet access to adults using terminals in a separate section of the library.

It’s a common-sense solution that Congress rejected. Instead, lawmakers insisted that all computers be filtered and that the only way an adult can have the filter removed is by explaining that he or she needs the filter turned off for “bona fide research or other lawful purposes.”

Consider for a moment what this means. An adult library patron who seeks access to a Web site that is not obscene but is still blocked by the filter would have to explain to a government employee what he is researching and why this information is important. In the words of dissenting Justice John Paul Stevens, this is “a law that prohibits reading without official consent.”

The end result of the law is tantamount to a public library having a locked room containing hundreds of thousands of books identified by a private corporation as being inappropriate for library patrons. Many of the books in the library are lawful and constitutionally protected, but the private corporation doesn’t know how to keep those books out of the room. In order for an adult patron to look through that room, he has to explain his motives to a government official.

In a pivotal 1997 case, the Supreme Court declared that content on the Internet is protected by the First Amendment. Many hoped that respect for the Internet would carry over to this case and either leave local library decisions to local librarians, or force Congress to come up with a rational scheme.

That didn’t happen. Instead, the Court upheld the law for two basic reasons.

First, the Court concluded that Congress has a right to place conditions on its funding and that libraries could avoid this restriction by simply turning down federal funds.

Second, and possibly more important, the Supreme Court ignored what the law actually said and instead relied on the arguments made by the government’s lawyers. The lawyers assured the Court that libraries would remove filters any time and every time an adult patron asks.

“If, on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay, there is little to this case,” Justice Anthony Kennedy wrote in his concurring opinion.

But that’s not what the law says. The real question is whether the government will require a librarian to follow the letter of the law or simply meet the standards set by government lawyers as they tried to reassure the Court and win this case.

We’ll know soon. This case was taken to the Supreme Court by the American Library Association — an organization that remains vigilant in its defense of First Amendment freedoms and the rights of library patrons everywhere. If the government engages in heavy-handed efforts to keep adults from accessing constitutionally protected material on the Internet, the federal courts will soon see new test cases.

No one believes that children should be exposed to online pornography, but we can’t allow clumsy regulatory efforts to short-circuit Americans’ access to the most extraordinary information resource in the history of the world. We need to protect this vibrant and global marketplace of ideas.


High court backs use of Net filters in libraries

Justices rule 6-3 that software doesn't violate First Amendment even though it shuts off some legitimate Web sites. 06.23.03

Librarians to filter vendors: Tell us how they work

In public libraries around the country, uncertainty follows Supreme Court's ruling in United States v. American Library Association. 07.04.03

Library filtering foes lose high court's war of words

By Tony Mauro The metaphors that made blocking software sound harmless carried the day. 06.24.03

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