April 12, 2012
Federal District Court Says OK To Library Blocking Internet Content To Adults
Judge Edward Shea of the Eastern District of Washington issued an opinion on Tuesday in the long simmering case of Bradburn v. North Central Library Regional Library District (NCLR) (NO. CV-06-0327-EFS, via a link to PACER). The case involves the constitutionality of filters set up on Internet accessible computers in the 28 NCRL branches. These are mandated by the Children’s Internet Protection Act (CIPA) in circumstances where a library receives federal funding. The library system has a policy where it will not automatically unblock web sites for adult patrons and reserved the right to block or unblock sites. That policy resulted in a federal lawsuit filed in 2006.
The District Court initially certified the question to the Washington Supreme Court for a ruling under the Washington State Constitution. That Court answered the question by stating that the filtering practice does not violate Washington’s free speech guarantees. Previous LLB coverage of that decision is here, along with details of what kinds of materials were blocked.
The Washington Supreme Court, in essence, said that filtering is part of collection development and is reasonable. The library is not obligated to provide complete access to protected speech just because it exists. The only question remaining before the District Court is whether the practice of blocking content for adults is a violation of the First Amendment.
The Court states up front that not all the speech blocked is “constitutionally unprotected” (its terms) and that adult patrons are unable to view it with filters in place. The library does have a policy where adults can request a page to be unblocked and the library uses its own discretion to unblock the site or not. The Court, in this context, decided that it should use the rational review standard in deciding the case. It quoted United States v. Am. Library Ass'n, 539 U.S. 194 for the concept that the library is not to be considered a public forum under the First Amendment, even if it is government funded. On that basis it found the discretion to block or unblock does not violate the First Amendment:
Scrutinizing the undisputed facts under rational review, the Court finds NCRL's use of FortiGuard to filter its patrons' Internet access and its decision to not disable the filter upon an adult patron's request complies with the First Amendment. It is reasonable for NCRL to develop an Internet policy that can be implemented consistently throughout its twenty-eight libraries, and it did so by implementing the Policy. NCRL's libraries are relatively small in size and only one has a partition separating the children's portion of the library from the remainder of the library. Blocking Internet sites and pages that contain constitutionally-protected material deemed suitable only for adults helps ensure that the environment at NCRL libraries is consistent with its mission of providing learning and research opportunities for individuals of all ages. This is a legitimate government interest.
And NCRL's practice of requiring a patron to request that a particular web site or page be unblocked is an efficient and rationale way for NCRL to determine whether that web site or page is consistent with its policies and mission, especially in light of the Internet's continuous change. NCRL simply does not have the resources to have its staff review the vast and limitless amount of sites and pages on the Internet to determine whether they are consistent with its policies and mission. NCRL's unblocking-request process reasonably accomplishes its policies and mission, while at the same time complying with CIPA.
The Court acknowledges that this process may frustrate some adult patrons. However, without the funding provided by CIPA, NCRL likely could not provide any Internet access to its patrons. This would be a great disservice to the NCRL patrons, many of whom live in rural areas where reliable, affordably-priced Internet access may be difficult to obtain.
I wrote at the time of the Washington Supreme Court decision that I agreed with the idea that libraries should not be required to make collection development decisions with the First Amendment looming in the background. I agree with the District Court that a library’s collection development strategies encompass online access. The library is a source for Internet access. It’s not the only possible source. As such, the library should be able to decide on its own how liberal or conservative its online access policies should be, even if it receives funding from the government. I would rather see this than a Court dictating what information should or should not be in the collection.
The plaintiffs wanted a ruling that limited a library’s discretion to the physical collection. I’m sure they are disappointed and I would expect them to appeal to the Ninth Circuit. We’ll see how this plays out. As of now, NCLR was granted summary judgment with this opinion and order. [MG]