Viewpoint-based library filtering,as to adults and as to children

[wasserma at fiu.edu]

Libraries are strange First Amendment entities--part government speaker, part 
public forum.  I think Justice Brennan tried to accommodate that nature in 
distinguishing selection from removal in Pico (a school library, but the library 
advocates had adopted the framework).  It generally became accepted amon 
librarians that they had unlimited discretion as to initial selection--although 
decisions were couched in neutral terms such as space and resource 
considerations or considerations of "excellence."  But it was generally believed 
that a library could choose not to initially carry something for just about any 
reason.  Pico added the wrinkle (and librarians tended to like it) that First 
Amendment limitations (including the prohibition on viewpoint discrimintation) 
kicked once a purchase was made as to whether that material can remain on the 
shelves.

Of course, the line between selection and removal blurs as to internet material. 
The lower court in ALA (and an earlier district court in Virginia) tried to maintain 
some distinction, but the Supreme Court in ALA largely ignored it and spoke of 
broad editorial control over internet material.

One thing that I did not notice from the article--are libraries unblocking the site 
on request?  Part of the filtering argument is that people still can access these 
sites, they simply have to request the material.  If the site is blocked (even for 
viewpoint-discriminatory reasons) but a patron can request the site, has there 
been any violation?


Howard Wasserman
FIU College of Law


>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
Tim Zick wrote: 


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.   

 

Tim Zick            

St. John’s University School of Law

718-990-6633

zickt at stjohns.edu

   

-----Original Message-----
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 children

 

      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.