Filtering vs First Amendment

[Steve Hoffman]

Thought I'd post this stuff while we're debating whether anyone
should post this stuff.  Perhaps we should set up a non-SCN list for
those of you who are interested in receiving this stuff.  Anybody 
interested?

========================

Library Case Will Launch Simple but Powerful Argument

NY Times 1/15/98


A library patron has no constitutional right to require the local
library to carry a particular book, magazine or Web page. 

That, in a nutshell, is the simple but powerful legal argument
expected to be launched in the next few weeks by the defendants in a
closely watched federal lawsuit that could further define free speech
rights in cyberspace. 

Last month, 11 individuals joined a grassroots group called
Mainstream Loudoun to file a federal lawsuit aimed at stopping a
two-month-old Internet usage policy of the public library system of
Loudoun County, Va. The library's response to the lawsuit is due by
February 2. 

Loudoun's policy, which the library says is partly designed to combat
potential "sexual harassment" of library staff, requires that all
Internet terminals in the Loudoun library system contain filtering
software designed to block hard-core and soft-core pornographic
sites. 

Under the policy, library Internet terminals are fully visible to
other library patrons and library staff. Children are not allowed to
use the filtered Internet terminals without parental permission. 

Also, if a patron is caught viewing an inappropriate Web site that
somehow escaped the filter, he is asked to stop by the library staff.
If the patron refuses, he is asked to leave. If he refuses to leave,
he is subject to criminal trespassing charges. 

In legal papers filed in the Federal District Court for the Eastern
District of Virginia in Alexandria, opponents say that the library
policy is government activity that infringes the First Amendment
rights of library patrons, because it results in the removal from the
library of a substantial amount of speech that is not obscene or
otherwise constitutionally objectionable. The lawsuit also claims
that the location of terminals in the middle of the library floor may
result in chilling a patron's intention to view sensitive materials. 

Kenneth C. Bass 3d, a lawyer hired by Loudoun County to defend the
case, said in an interview last week that the claim asserted against
the Loudoun library system is "the first of its kind . . . a claim
unknown to constitutional litigators." 

He added later: "I think there is no prior litigation in the history
of the United States where someone has sought in the guise of the
First Amendment publicly funded access to private peep shows, which
is what the complaint seeks." 

Bass, 53, a partner at Venable, Baetjer, Howard & Civiletti, a law
firm with offices in Washington, D.C., that has handled some
high-profile Internet litigation, said that he supported the Supreme
Court's landmark decision last year in Reno v. ACLU, in which the
court struck down certain provisions of the Communications Decency
Act that sought to ban the dissemination of indecent material on the
Internet. 

"But," he said, "that is very different from asserting, as the
plaintiffs have done in this case, that a patron has a constitutional
right to compel a library to acquire anything the patron wants to
read. That is an unprecedented claim. . . . It is also an argument
that no one would have made before the development of Web
technology." 

According to Bass, there is at least one Supreme Court case that
favors Loudoun's position in the library filtering war. 

In Board of Education v. Pico, a 1982 case, the Board of Education of
Island Trees Union Free School District in Long Island ordered that
certain books, which the board characterized as "anti-American,
anti-Christian, anti-Semitic, and just plain filthy," be removed from
high school and junior high school libraries. 

Writing for a plurality, Justice William J. Brennan Jr. said that
local school boards may not "remove" books from library shelves
simply because they dislike the ideas contained in those books. But
the court added that its ruling affected only a librarian's
discretion to take books off shelves, not a library's wide latitude
in deciding which books to acquire. 

"Brennan's opinion stands for the proposition that the First
Amendment does not regulate a library's acquisition policy," Bass
said. "And this is an acquisition case. The library policy and
software are aimed at preventing the acquisition of material that is
reasonably vulgar or obscene. . . . Pico is good authority for the
proposition that what Loudoun has done is perfectly appropriate." 

Bass said he plans to make a motion to dismiss the case in the next
few weeks based on the argument that the plaintiff's have failed to
state a valid First Amendment claim. He added that he intends to make
technical arguments challenging the standing of certain plaintiffs to
sue, claiming immunity for certain individual defendants, and pointing
out factual errors in the complaint. 

Responding to the potential defense arguments, Robert Corn-Revere, a
lawyer for the library patrons, said that library's filtering policy
was a form of content removal, not acquisition, thus pulling the Pico
case on the side of the plaintiffs. 

"This goes far beyond any kind of acquisition policy and in fact is a
censorship policy," he said, adding that the filtering software
employed by the library, a product called X-STOP, doesn't acquire
anything, "it simply excludes." 

Corn-Revere characterized the library's use of filtering software as
analogous to "subscribing to a magazine and after the fact razoring
out articles you think are offensive." 

In any event, the lawsuit is not just about using software to exclude
condemned speech. "Their entire Internet policy is designed to limit
what people in the library read on the Internet," said Corn-Revere, a
partner at Hogan & Hartson, a Washington, D.C., law firm, referring
to the library system's policy of having librarians look over the
shoulders of people sitting at the filtered Internet terminals. 

In other developments in the Loudoun case, the American Civil
Liberties Union has expressed concern about how the Loudoun policy
could limit the rights of a different group of citizens -- Internet
content publishers. The group is currently examining whether to
intervene in the lawsuit on behalf of such contenet providers. A
decision is "imminent," a spokesman said. 

Also, the Loudoun case has already launched the political career of
at least one defendant. Richard Black, a Loudoun library trustee and
author of the Internet policy, announced on January 5 that he is
running for a vacant seat in Virginia's House of Delegates. If
elected, he would support a statewide library filtering policy, he
said in an interview last week. 

Copyright 1998 The New York Times Company
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