Libraries & filtering software

[Steve Hoffman]

Suit Against Library May Test Free Speech Rights

NY Times 12/24/97


A new lawsuit that accuses a public library system of violating
adults' First Amendment rights when it restricts their access to the
Internet could represent the next big battle in the war over free
speech in cyberspace. 

Earlier this week, 11 individuals joined a group called Mainstream
Loudoun to file a federal lawsuit aimed at blocking a two month old
Internet usage policy in the public library system of Loudoun County
in Virginia. 

The policy, among other things, requires that the library's public
computers, including those used by adults, be equipped with filtering
software that prevents viewing of material that is obscene, contains
child pornography or that is harmful to minors under Virginia
statutes. The suit says that this is an infringement of the free
speech rights of adults, especially because the blocking software used
has prevented access to legitimate material, not just sexually
explicit sites. 

Defenders of the policy counter that tax dollars should not be used to
pay for access to pornography, especially when that material could
prompt accusations of sexual harassment from library employees or
patrons who happen to view and be offended by the material. 

Whoever is right, the lawsuit is the first to raise the question of
whether public libraries, as government entities, engage in
impermissible censorship when they seek to limit what an adult can
view in the wide-ranging world of the Internet. It is also the first
major Internet free speech case to be filed since the United States
Supreme Court, in its landmark Reno v. ACLU decision issued last June,
struck down as unconstitutional a federal law that sought to restrict
arguably indecent material online. 

"I think the Loudoun County case is very significant," said Ann
Beeson, a lawyer for the American Civil Liberties Union and a member
of the team of attorneys who fought the indecency provisions of that
federal law, the Communications Decency Act. "This issue is the most
important free speech battle we will fight in the wake of Reno v.
ACLU." 

The case was filed in the Federal District Court for the Eastern
District of Virginia in Alexandria. Although it is the first of its
type, it might not be the last, as libraries all over the country
begin trying to figure out how to introduce the Internet. 

In the past, the physical limitations of bookshelf space have given
librarians a practical reason for to restrict their acquisitions. But
the boundless Internet provides no such excuse, and the material
contained within in it, everything from AIDS information to hard-core
pornography to sites about religion, foreign policy and hobbies, is
bound to contain something offensive to someone.

Beeson said the ACLU was closely monitoring the library policies in
several states, and could launch a suit of its own. In addition, she
said, the group might seek to intervene in the Loudoun County case to
represent the interests of online publishers.

The federal court in Alexandria, nicknamed the "rocket docket"
because of its reputation for handling cases with dispatch, is likely
to begin handling the case early in 1998.

The battle centers on an Internet policy, passed by the board of the
Loudoun County Library on Oct. 20, that the trustees said was
necessary to protect employees and patrons from sexual harassment.
Among other things, the policy required the use of filtering software
to prevent users from viewing sexually explicit material that could,
it was argued, be viewed by others who would be so offended by the
material that they would argue they had been subject to sexual
harassment. 

According to the complaint filed in court, however, the filtering
software being used in Loudoun , a product called X-STOP, has also
blocked access to an array of legitimate material, including sites put
up by the American Association of University Women, the Society of
Friends and publishers of the AIDS Quilt site.

Furthermore, the suit says, the plaintiffs object to an aspect of the
policy that apparently has resulted in terminals being placed in areas
where they can be seen by people other than the Internet surfer. Among
the plaintiffs is a technical writer with breast cancer. The library
policy harms her, according to the complaint, "by denying her full
access to valuable information that she would like to obtain and by
the lack of privacy of having terminals placed out in the open without
privacy screens which inhibits her ability to view sensitive medical
and other material." 

Lawrence S. Ottinger, one of the lawyers in the case and staff counsel
for People for the American Way, a free speech organization, said the
policy is a clear violation of the First Amendment because it prevents
adults from reaching material to which they have a constitutional
right. "The policy is very overbroad in that it would deny access to
patrons of a substantial amount of constitutionally protected,
valuable material," he said. 

"It amounts to reducing adults to the electronic equivalent of the
children's reading room."

Ottinger dismissed the sexual harassment argument as "a trumped-up
rationale" that trivializes what he characterized as true harassment
caused by an employer. "It's hard to see how a patron, not an
employer, could harass a librarian," he said.

A call to Douglas Henderson, director of library services for Loudoun
County, was referred yesterday to the Loudoun County attorney, John R.
Roberts. Efforts to reach Roberts were unsuccessful.

But a supporter of the law, Bruce A. Taylor, president and chief
counsel of the National Law Center for Children and Families in
Fairfax, Va., called the lawsuit "frivolous" and said that the
blocking software would give plaintiffs access to any legitimate
material they wanted. "On the facts, this case covers a narrow issue:
whether a library can provide Internet services to the public without
giving access to pornography," he said. "It would be a sad day for a
court to say anybody can demand that a library give them whatever they
want." 

Taylor said that if libraries are prevented from using filtering
software, they might not choose to carry the Internet at all. "It is
an infringement on the rights of the people in Loudoun and their board
members to have someone come in and demand that their tax dollars be
used to buy someone pornography," he said. 

The president of the company that makes X-STOP conceded that the
software had, indeed, at times blocked access to inoffensive sites.
But, Michael S. Bradshaw, president of the company, Log-On Data Corp.
in Anaheim, Calif., said that these were blunders that, once pointed
out, were corrected.

"We never said we don't make mistakes," he said. "But to make such a
hullabaloo about a site or two? Why doesn't the librarian just unblock
the site?" 
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