Viewpoint-based library filtering,
as to adults and as to children
zickt at stjohns.edu
Mon Mar 20 09:48:55 PST 2006
I'm actually surprised there are not more reports of this sort of
satellite litigation with respect to filtering, especially in light of
the Court's decision in American Library Ass'n. That case permitted the
government to condition federal funding for internet services in the
public libraries on the libraries' filtering for certain categories --
obscenity, child pornography, and HTM materials. As many know, the
filters can be set to filter categories like "hate" and "tasteless and
gross" (autopsy pictures and the like), as well as varieties of sexually
explicit speech. The ALA Court relied on the principle that librarians
have a certain degree of editorial discretion to make acquisition
decisions, and in particular to deny access to pornography (which they
have never collected in print). The Court also noted that the libraries
do not create a public forum by providing Internet access.
That legal framework and treatment of Internet access may apply with
respect to filtering an entire category, like "pornography," that does
not necessarily convey a viewpoint and has not typically been included
in print collections. But the example seems to suggest that the
libraries may be engaged in site-specific viewpoint discrimination.
That is, they have filtered by category and then refused to permit
access to the site based upon its content. This of course is not
permissible even in a non-public forum. I'm not sure that ALA speaks to
the scenario at hand. Thus, it would seem that the libraries must
permit access -- by both children and adults.
St. John's University School of Law
zickt at stjohns.edu
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, March 20, 2006 12:18 PM
To: CONLAWPROF at lists.ucla.edu
Subject: Viewpoint-based library filtering, as to adults and as to
Any thoughts on this? I'm not at all sure myself what the rules
should be as to library filtering, especially of material accessible to
children, but I thought this was an interesting example to use in
thinking about this.
St. Louis Post-Dispatch (Missouri)
March 18, 2006 Saturday
SECTION: NEWS; Pg. A6
HEADLINE: Group charges libraries filtered out Web site
BYLINE: By Peter Shinkle ST. LOUIS POST-DISPATCH
The Council of Conservative Citizens, a nationwide group that has been
portrayed as racist, is suing four libraries in the St. Louis area for
allegedly blocking patrons from viewing its Web site. . . .
The site, cofcc.org, does not feature the racial epithets commonly used
by racist groups. It does, however, provide a slate of news stories
about crime by blacks or immigrants. It also offers for sale a T-shirt
with the words, "White Pride," "Deutschland" and "Save Our Culture." . .
Baum filed a suit in U.S. District Court on Monday claiming the
Maplewood City Library, University City Public Library, Valley Park
Community Library and Festus Public Library had violated his
constitutional right to free speech by blocking access to the Web site.
At least two of the libraries say they now permit patrons to view the
site. . . .
Maplewood City Library Director Terrence Donnelly sent the group a
letter replying that the Internet filter service the library uses had
blocked the site after tagging it as being in "the categories of Hate
On Friday, however, Donnelly said that changed after the library's board
discussed the issue on Wednesday and he consulted with a lawyer.
Donnelly said the Web site is now accessible at the library. . . .
The University City Library stopped blocking the group's Web site after
it received a letter from Baum in November, said the library's director,
"We have turned off the hate speech filters for the adult machines, but
they're still in place for the children's machines," she said.
It was unclear whether the two other libraries block the site. . . .
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