Friday, May 7, 2010
The Washington Supreme Court has upheld a policy that allows public libraries to filter Internet content for all patrons.
The plaintiffs claim that NCRL's Internet filtering policy is overbroad and, more specifically, so overbroad as to rise to the level of a prior restraint in violation of article I, section 5. They also contend that the filtering policy is an impermissible content-based restriction on speech. NCRL maintains that use of the FortiGuard filter makes it possible to provide its patrons access to vast amounts of constitutionally protected material while ensuring that on-line resources are aligned with its mission and collection policy, the interests of public education are advanced, and a safe and appropriate environment for staff and patrons is maintained. NCRL maintains that its filtering policy is constitutional under article I, section 5.
The foundations of the plaintiffs' overbreadth challenge are the presumption that a public library must make accessible all constitutional speech on the Internet and the contention that a policy that applies so broadly that it excludes any constitutionally protected speech violates article I, section 5. But a public library has no obligation to make available any and all constitutionally protected material, and the goal of libraries has never, as the plurality in A.L.A. noted, been to provide "'universal coverage.'" A.L.A., 539 U.S. at 204 (quoting Am. Library Ass'n v. United States, 201 F. Supp. 2d 401, 421 (E.D. Pa. 2002)). Rather, "'[t]he librarian's responsibility . . . is to separate out the gold from the garbage, not to preserve everything.'" Id. (quoting William A. Katz, Collection Development: The Selection of Materials for Libraries 6 (1980)). "'[I]t is the aim of the selector to give the public, not everything it wants, but the best that it will read or use to advantage.'" Id. (quoting Francis K.W. Drury, Book Selection xi (1930)). The principle that a library has no obligation to provide universal coverage of all constitutionally protected speech applies to Internet access just as it does to the printed word in books, periodicals, and other material physically collected and made available to patrons. "The Internet is simply another method for making information available in a
. . . library'" and "is 'no more than a technological extension of the book stack.'" A.L.A., 539 U.S. at 207 (quoting S. Rep. No. 106-141, at 7 (1999)). Just as it is entitled to exercise its acknowledged discretion in amassing a collection of printed materials physically placed on the shelves in order to carry out its mission, it is entitled to exercise discretion when it comes to Internet access involving its facilities and equipment. The discretion that public libraries enjoy in selecting materials for their collections
is not merely a function of what a library can afford in terms of costs and space, contrary to the position taken in Mainstream Loudoun I, 2 F. Supp. 2d at 795. Even if one were to assume a public library with unlimited funds and space, that library would be under no obligation to make all constitutionally protected printed materials available. For example, regardless of its resources a library need not place pornographic materials on its shelves, although such materials are constitutionally protected. It need not place children's comic books on its shelves, although these, too, are constitutionally protected. As another
example, if a private collector offered a library a collection of books at an attractive set price for the entire collection and the library purchased the collection, it would not have to include all of the books in its own
collection and would not have to make them all available to its patrons. In any event, it is simply not true that there are no costs or physical restrictions attendant to access to the Internet via a public library. Although generally purchase of Internet access includes all of the Internet's free sites, making the Internet accessible to patrons requires devoted library space and frequently scarce computer terminals and
resources. Given the traditional and necessary discretion lodged in public libraries with respect to acquisition of materials, we do not agree that the overbreadth doctrine applies to a public library's decisions about what materials to place in its collections. For example, if a public library decides, in accord with its written policies, not to acquire pornography for its collection, can it be said that its policies are unconstitutionally overbroad? To the contrary, exclusion of this type of constitutionally protected speech is within the discretion that libraries traditionally enjoy. We do not believe there is any
good reason to treat the material available on the Internet any differently. In short, a library simply does not have to include all constitutionally protected materials in its collection and it follows that no overbreadth problem necessarily results under article I, section 5 as a result of a public library's Internet filtering policy under which access to certain categories of constitutionally protected materials is denied.
The case is Bradburn v. North Central Regional Library District, Docket No. 82200-0, decided May 6, 2010.