In the first ever federal court decision on the constitutionality of using Internet filtering software in public libraries, the censors lost. U.S. District Court Judge Leonie M. Brinkema, a former librarian herself, ruled in a Virginia case that any restriction on Internet access in public libraries had to be justified by a compelling governmental interest, the most difficult standard for the government to meet.
Both the Hillsborough County Commission and the U.S. Congress should heed the judge's ruling and reconsider plans that put them on a collision course with the First Amendment.
The Hillsborough library system, at the County Commission's direction, is about to implement Internet filtering on its public library computers. Congress, meanwhile, is considering the "Internet School Filtering Act," which would require filtering software on all computers in libraries and schools that receive federal funds.
Judge Brinkema held that expression on the Internet has the same constitutional protection as newspapers, books and movies; and any attempt to filter it to keep minors from exposure to sexually explicit material will have to be done without blocking that material for adults.
The Virginia case involved the filtering software "X-Stop," which was installed on public library computers in Loudoun County. The software blocked sites with sexually explicit material and discussions, including safe sex sites, sites on books for gay and lesbian teens and, oddly, some sites without sexual material. A number of adult library patrons sued the library Board of Trustees and its director for violating their free speech right to access all legal material on the Internet. If the library chooses to offer Internet access, they asserted, it can't pick and choose which parts of the Internet to make available.
The judge agreed. She said the library's decision to restrict portions of the Internet from its adult patrons was not, as the library argued, like choosing books for acquisition based on space and resource considerations. She noted that it costs more to filter the Internet than to leave it whole. Instead, she analogized the filtering to "a collection of encyclopedias from which (the library staff) have laboriously redacted portions deemed unfit for library patrons."
No doubt the ruling will be appealed, but so far every federal appellate court to rule on the degree of constitutional protection to be afforded speech on the Internet has given it the First Amendment's most rigorous protections.
Hillsborough County plans to install WebSense on its library computers for a one-year trial run this fall. Although that filtering system is not as ham-handed as X-Stop, it still blocks material that, though sexual in nature, is not legally obscene. Even more troubling, however, is the library's strict code of conduct for its patrons. It prohibits the use of the Internet to access pornography, chat rooms and games. All those restrictions are just as constitutionally suspect as is electronic filtering, opening the library system to legal action.
The library should not be in the business of second-guessing a patron's use of its Internet access. Under the rules, patrons can't access a chat room that might contain an important discussion on clinical depression, yet they can go to clothing and car company sites. Does the library cut the crossword puzzle out of the newspaper for fear patrons will "play games" while using the limited resource? If the library is having trouble with some people hogging the machines, they should enforce a per-patron time limit.
Hopefully, Brinkema's sage ruling will usher in a new calm, where libraries offer Internet access without electronic censoring or personnel nosing into a patron's choice of reading. Hillsborough County Library Director Joe Stines said the problem of patrons accessing pornography on their computers has been "minuscule," with only 21 "incidents" occuring in more than a year. There is no reason for the county to be buying $30,000 worth of filtering software, and possibly buying itself a lawsuit, when it's really all a non-issue.