[This opinion piece is presented by SOIS PhD student, Jeremy Mauger]

On April 10th, the United States District Court for the Eastern District of Washington upheld a ruling that allows filtering software to deny adults the ability to access constitutionally protected speech in public libraries. TheCourt’s opinion suggests that the libraries in question are serving a “legitimate government interest” (1 at p. 6) by blocking adult access to protected speech, and are justified in doing so in order to comply with the requirements of the Children’s Internet Protection Act (CIPA).

Passed in 2000, CIPA requires that public libraries install filtering software in order to protect minors from harmful content while accessing the Internet. Specifically, CIPA mandates that any public library which receives federal funding for computers and Internet service must implement “…a technology protection measure with respect to any of its computers with Internet access that protects against…visual depictions that are obscene, child pornography, or harmful to minors” (2 at pp. 6-7). Fearing that this requirement would hinder the right of adult patrons to access constitutionally protected speech, the American Library Association filed a challenge to this law – a challenge that eventually came before the Supreme Court in 2003.

Although the Supreme Court did not find CIPA to be unconstitutional, it did acknowledge that such filtering may harm the right of adults to access protected speech if implemented incorrectly. Justice Kennedy “…concluded that if…a librarian will unblock filtered material or disable the Internet software filter without significant delay on an adult user’s request, there is little to this case…If some libraries do not have the capacity to un-block specific Web sites or to disable the filter or if it shown that an adult user’s election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge” (3 at pp. 3-4).

[Ed – changes have been made to this paragraph for clarification; see comments below] The opportunity for such a challenge arose in 2006 when Sarah Bradburn, an adult patron adult patrons of the North Central Regional Library District (NCRL) was were denied access to a websites containing constitutionally protected material. The NCRL, an association of 28 participating libraries, currently employs FortiGuard filtering software in order to comply with the requirements of CIPA and has previously used SmartFilter (Bess edition). In this instance, FortiGuard blocked Ms. Bradburn from viewing the website of the Among others, the filter blocked plaintiff Charles Heinlen’s access to “womenandguns.com”. This website is published by the Second Amendment Foundation, a “Washington nonprofit corporation dedicated to issues associated with the constitutional right to keep and bear arms” (4 at p. 7). The content of this site is undoubtedly protected by the constitution but does not fall within the NCRL’s definition of material that is suitable for minor patrons in the context of CIPA and was blocked accordingly.

Ms. Bradburn and three other plaintiffs (including the Second Amendment Foundation) sued the library system, alleging that the NCRL’s filtering policy violated the First Amendment rights of its adult patrons. However, despite the Supreme Court’s explicit suggestions to the contrary, on May 6, 2010 the Supreme Court for the State of Washington ruled that the NCRL had no obligation to disable Internet filters and allow access to constitutionally protected material. Specifically, the Washington Court ruled that “

…a public library may… filter Internet access for all patrons without disabling the filter to allow access to web sites containing constitutionally protected speech upon the request of an adult patron” (4 at pp. 29-30, Emphasis Added).

This decision, as noted above, was recently upheld by the Federal Court. The Circuit Court concluded that “Blocking Internet sites and pages that contain constitutionally-protected material deemed suitable only for adults helps ensure that the environment at NCRL libraries is consistent with its mission of providing learning and research opportunities for individuals of all ages. This is a legitimate government interest…The Court acknowledges that this process may frustrate some adult patrons…[However,] because NCRL’s Policy, including not disabling the Internet filter at the request of an adult patron, is reasonable, there is no overbreadth or impermissible content-based First Amendment violation” (1 at pp. 5-6).

This is an extraordinary extension of the Supreme Court’s ruling. It bears repeating that the Supreme Court’s decision requires that the constitutional application of CIPA must include the immediate unblocking of Internet filters at the request of an adult patron. As Justice Kennedy noted, the law ceases to be constitutional “…if it is shown that an adult user’s election to view constitutionally protected material is burdened in some…substantial way” (3 at p. 4).

It seems clear in this instance that adult access to protected speech has been substantially burdened. The NCRL has misinterpreted the requirements of CIPA while the courts have extended and misapplied the law. The NCRL’s filtering policy and subsequent rulings in the Bradburn case have limited the ability of adult patrons to access constitutionally protected material on public library computers. It has also confined adult access to only those materials deemed to be suitable for children within the constraints of CIPA. Internet filtering through CIPA was never intended to constrict adult access in this manner. It was solely meant to shield minors from harmful content, not to create a burden on the right of adults to freely receive constitutionally protected speech.

References

1. Bradburn et al v. North Central Regional Library District, 2:06-cv-00327-EFS (2006). United States District Court for the Eastern District of Washington; April 10, 2012.
2. Children’s Internet Protection Act (CIPA), Title XVII, Pub. L. No. 106-554 (2000).
3. United States v. American Library Association, 539 U.S. 194 (2003).
4. Bradburn et al v. North Central Regional Library District, 2:06-cv-00327-EFS (2006). Washington State Supreme Court, No. 82200-0; May 6, 2010.