by Kathleen T. Henn and Gregory T. Smith

In the first and second parts of our series on the First Amendment in libraries, we discussed how the First Amendment impacts your library’s ability to regulate patron speech. In this part of the series we will discuss the First Amendment’s role in censorship and filtering. Censorship and filtering are First Amendment issues because if your library makes a mistake in drafting or applying the rules discussed below, there is a potential for legal liability for infringement of a patron’s First Amendment rights.

Insofar as censorship and filtering are concerned, there are two main problems with unrestricted Internet access at libraries: first, the federal government has stated that as a matter of policy children should be protected from offensive content online. Second, unrestricted Internet access at a library can lead to lawsuits against the library if a patron is unwittingly exposed to sexually explicit material or if a library employee is exposed to such material and claims that a hostile workplace environment exists.

Congress enacted the Children’s Internet Protection Act, also known as “CIPA” in 2000 to address these problems. Under the terms of CIPA, a public library may not receive federal assistance to provide Internet access unless it installs software to block images that constitute obscenity or child pornography, and to prevent minors from obtaining access to material that is harmful to them. Congress, using its power to distribute money to libraries, became concerned that it’s E-rate and the Library Services and Technology Act (“LSTA”) programs were facilitating access to illegal and harmful pornography. Because Congress controls the allocation of E-rate and LSTA funds, it can subject libraries that participate in these programs to federal laws that may not otherwise apply. Congress learned that adults use library computers to access pornography that is then exposed to staff, passersby, and children.

CIPA requires that when computers in federally funded libraries are used by minors, a filter must block visual depictions that are obscene, constitute child pornography or other depictions harmful to them. Under the E-rate program, the filter can be disabled if an adult is using the computer. Under the LSTA program, the filter can be disabled during use by any person. In both cases, the filter may be disabled to enable access to bona fide research or for other lawful purposes. Library staff may disable filter for “bona fide research” or “other lawful purpose” when the computer is being used by an adult. 47 U.S.C. § 254(h)(6).

If your library filters digital content, be aware that if your filters are overly sensitive, or if your policies regarding disabling of the filters are not properly drafted or obeyed, First Amendment violations could be occurring. For example, courts are willing to allow lawsuits to proceed against libraries that refuse to disable an internet filter when properly requested by an adult. Bradburn v. North Central Regional Library District, 2008 WL 4460018 (E.D. Wash. 2008). In Bradburn, a number of patrons sued their library after the internet filter denied them access to certain web pages. The blocked web pages included YouTube, pages about youth smoking, nude art, firearms, and Craigslist personals. The patrons asked the library to allow them to access the blocked pages, and the library refused to do so. The patrons sued, claiming that their right to access information via the internet was unconstitutionally infringed by the library’s acts due to over-filtering and refusal to disable the filter. The court denied the library’s motion to dismiss the lawsuit, and allowed the patrons to proceed with their case.

If your library uses filtering software, in addition to enacting and properly enforcing a filtering policy, we recommend that you take further steps to minimize potential liability related to Internet usage by:

1. having computer use sessions end a certain number of minutes before the next user begins and have an automatic three-minute shut-off after no activity;
2. using privacy screens;
3. facing monitors away from easy view;
4. prohibiting computer use by more than one person at a time; and
5. requiring patrons to sign a waiver/disclaimer, especially for use by minors.

The next portion of this series on First Amendment issues will address material selection and minors’ access to library materials.

About the Authors

Kathleen Henn is a partner and Gregory Smith is an associate attorney with Klein, Thorpe & Jenkins, Ltd., an Illinois law firm with offices in the Civic Opera Building at 20 North Wacker Drive in Chicago and at 15010 S. Ravinia, Orland Park. The firm concentrates in the representation of local libraries, Library districts and Library systems, along with other units of local government.

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Published March 24, 2010 in vol.4, iss. 6 [View]