May 11, 2010
Internet Filtering: Censorship or Collection Development?
That question, more or less, came before the Washington Supreme Court. Public libraries in that state may filter results without running afoul of the Washington State Constitution’s equivalent of the First Amendment:
SECTION 5 FREEDOM OF SPEECH. Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.
The Court describes the Washington Constitution provision as offering greater speech protections in some circumstances compared to the Federal Constitution. The case started when three individuals and a gun rights organization sued the North Central Regional Library District (NCRL), a public library, because the NCRL blocked Internet access to some sites that are constitutionally protected speech. NCRL filters access to the Internet guided by two stated policies, one covering collection development and the second an acceptable use policy. NCRL added filters to library computers to meet their policy objectives as well as their obligations under the Child Internet Protection Act. The Court noted 76 categories of information that NCRLs filters block. These include adult oriented entertainment sites, hacking sites, IM, gambling sites, spyware sites, and others. Site blocking applied to all patrons regardless of age.
The blocked site specifically mentioned by the Court in its opinion is www.womenandguns.com. The site content is consistent with views held by Second Amendment enthusiasts and could not be mistaken for anything but protected speech. There is evidence by the plaintiff in the record that false positives for the filters range between 11% and 23%. (The library shows smaller figures.) The plaintiffs argue that under these circumstances the filters are overly broad for their purpose and as such, unconstitutional. The Court noted that the women and guns site is not currently blocked nor had NCRL contended that it should be blocked.
The Washington Court first decided that prior restraint law should not apply to the situation, citing U.S. v. American Library Association, 539 U.S. 194 (2003), for the proposition that prior restraint jurisprudence should not extend to collection development decisions. The Court likens the filtering policy to a standard as to what the library will and will not add to the collection. It cites this provision from A.L.A. in support:
“A library’s need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worthwhile material; it is no less entitled to play that role when it collects material from the Internet than when it collects material from any other source.”
Because the amount of content available on the Internet is so vast, it is impossible for a library to review it. As such, it is permissible to ban content by category, especially if the idea is to view the action as adding to the collection rather than removing material from it. The Court then states that a library is under no obligation to make available any or all protected speech simply because it exists, and that principle extends to the Internet. Even further, the Court notes that should the library have unlimited space and money, it still would not be obligated to make all protected speech available.
As to the high number of false positives, the Court noted that patrons could request unblocking of specific URLs. The methodology is a bit cumbersome as it requires a patron to send an email and the page is reviewed against the two policies and CIPA. Unblocking occurs after the review provided it is a false positive. The response time could be within a few hours or a few days. The application of the process as a whole, in spite of its limitations, does not make it overbroad and unconstitutional.
The Court also rejected the notion that the filters effectively reduced available Internet content to that safe for children. It’s a collection development issue:
Most importantly, just as a public library has discretion to make content-based decisions about which magazines and books to include in its collection, it has discretion to make decisions about Internet content. A public library can decide that it will not include pornography and other adult materials in its collection in accord with its mission and policies and, as explained, no unconstitutionality necessarily results. It can make the same choices about Internet access.
So, what to make of all this? I actually think the decision is a good one, if for no other reason that it gives a public library (albeit confined to one state) the discretion over what materials it collects and what materials it does not collect. It is easy to argue that the Internet is self contained and by its nature, one has access to all of it if one has access at all. The Washington Supreme Court’s reliance on A.L.A.is not necessarily misplaced in making the assumption that selecting online content is a collection development issue if it is viewpoint neutral and not arbitrary. Filtering is not exactly a science. Web content is fluid, and while it would be desirable to filter no more material than necessary, filters will always lean to more than less. In this case, the Court noted the reporting system for unblocking otherwise constitutional speech. A report may not be resolved on the spot, but it is resolvable within a reasonable amount of time.
I think a decision to the contrary would unnecessarily complicate collection development for print materials just on the principle that public libraries would have a legal obligation to make available all or as much protected speech as possible. That may not be a practical approach, and courts may say as much. However, saying that won’t stop someone from suing because the library didn’t buy their book or a book that supports their ideas. I realize that some public library patrons rely on free Internet access at a library. This should not mean that a library should duplicate whatever access that person could have at home. The opinion neither requires libraries to offer maximum Internet content nor stop them from doing so subject to the requirements of CIPA. From my perspective, the fact that public libraries have that discretion and can still meet their mission is a good thing.