Several libraries across the United States have been sued—or threatened with law suits—for filtering the Internet access of library patrons. Loudoun County, Virginia was the first test case for mandatory information filters in public libraries. The plaintiffs in the Loudoun County case charge that filtering software on all of the library’s computers violates adult citizens’ First Amendment rights.
On November 23, 1998, U.S. District Judge Leonie Brinkema found Loudoun County, Virginia Public Library’s policy of installing filtering software on every computer with Internet access a violation of free speech provisions of the U.S. Constitution. “Such a policy offends the guarantee of free speech in the First Amendment and is therefore unconstitutional,” said Judge Brinkema in her ruling.
Judge Brinkema, a former librarian, went on to write in her 46-page decision that the use of commercial filtering software constituted a form of prior restraint on protected speech and that the library “cannot avoid its constitutional obligation by contracting out its decision making to a private entity.”
On November 24, 1998, rather than abide Judge Brinkema’s order to cease the use of filtering software on its computers, the Loudoun County, Virginia officials removed all publicly-accessible computers in its public library from service. An attorney representing Loudoun County said that any changes to the library’s Net access policy must be approved in a public meeting of the library board.
In early June, 1998 the first lawsuit was filed against a public library for failing to restrict Internet access by young patrons. An anonymous woman, identified only as “Kathleen P.” in court papers, filed suit in Alameda County, California seeking to bar the city of Livermore, California from spending public money on public library computer systems that allow minors to access sexual material that could be considered “harmful to minors” under California law.
The Livermore city attorney said the library would defend its open access policy in keeping with the American Library Association‘s position that there is no way to restrict access to arguably offensive material without violating free speech rights. “There is no effective way of screening the Internet without interfering with First Amendment rights,” Daniel Sodergren, assistant city attorney for Livermore told the New York Times. “Filters take out material protected by the First Amendment.”
In July 1998, civil rights groups including the American Civil Liberties Union and People for the American Way, field a “friend of the court” brief on behalf of the Livermore public library asserting that public libraries are protected from legal actions seeking to force the restriction of access to information on the Internet.
Section 230 of the Communications Decency Act (CDA) was left intact when the U.S. Supreme Court found most of the CDA unconstitutional in 1997. Section 230 of the law states that “no provider of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider.” This section of the statute gives Internet service providers immunity from liability for the information they carry; Internet service providers are seen more like common carriers than publishers. In the Livermore public library case, the library can’t be held accountable for information it carried but did not publish.
Another part of Section 230 states that the law—and its provision of immunity from liability—also applies to Internet services “offered by libraries or educational institutions.” According to the “friend of the court” brief, “the immunity provisions of the Communications Decency Act flatly prohibit imposing liability on a library for providing access to material that was transmitted over the Internet by others.”
Michael Millen, the lawyer for the woman who filed the suit against Livermore, told the New York Times that the Livermore public library and the ACLU were misinterpreting Section 230. Millen said that the purpose of the statute was to allow the use of filters to block objectionable material without fearing that the use of such software would be seen as a publishing activity. “What the ACLU is doing is taking a section which was supposed to protect libraries using filtering software and instead using it as a justification to not use filtering software,” Millen said in a New York Times article.
On January 14, 1999 Alameda County Superior Court Judge George Hernandez Jr. dismissed the case against the Livermore public library.
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