Libraries and first amendment

[Steve Hoffman]

Virginia Library Lawsuit Seen As Litmus Test for Internet Freedom

NY Times 3/2/98


When patrons of the Loudoun County, Va., public library try to view
sexually explicit material on any of nine computers newly connected
to the Internet, a software program responds with an unambiguous
message: "Violation!! Violation!! Violation!! Access to this site
has been blocked. Please click on your bookmark or go to some other
Web site." 

The library's board had the filtering program installed in November
and if the software had zapped only obscene material it probably
would not have provoked debate. 

The software program chosen by the county for its six library
branches, X-Stop, purports to purify the Internet. But library users
complain that X-Stop, produced by the Log-On Data Corp. of Anaheim,
Calif., is imperfect at best. Library users complain that they have
been denied access to information on sex education, breast cancer
and gay and lesbian rights, among other things, because the software
cannot discriminate between obscene materials and other information
about sexual topics. 

Patrons say they have even been barred from a Quaker site on the
World Wide Web and from the home page of Yale University's biology
department. At the same time, they say, graphic sexual images
sometimes manage to evade the software. 

Charging that the library's policy is an unconstitutional form of
government censorship, a group of citizens has filed a lawsuit. The
case is expected to serve as a litmus test of a library's First
Amendment obligation to its patrons in an age when its collection is
no longer limited by budgets or shelf space. 

The case is being closely watched as public libraries across the
nation add cyberspace to their collections and confront its
contradictions. 

As a tool, the Internet would seem to embody the traditional
library's commitment to the free flow of ideas. But the Internet
also strips libraries of their role as information arbiters. 

With more than three-quarters of the nation's public libraries
connected to the Internet, up from fewer than half in 1996, many
Americans now count libraries as their sole source of Internet
access. 

"The library is a place where you should be able to get all
different views," said Jeri McGiverin, a retired school teacher and
president of Mainstream Loudoun, a local civil liberties organization
involved in the lawsuit. "Some software company in California should
not be making the decisions about what we can and cannot see." 

Still, many Loudoun County residents agree with the library's board
that the occasional blackout of a worthwhile site is an acceptable
price to pay to maintain the library's traditional community values.
Under the policy, patrons have the option of submitting a written
request that the library staff consider unblocking a particular Web
site. A handful of petitions have succeeded. 

"I'm not going to be forced by some perceived new right to display
pornography in our library," said John J. Nicholas Jr., 49, the
chairman of the library board. "We never have, and we're not going
to start now." 

Last week a Federal District Court judge in Alexandria, Leonie M.
Brinkema, heard arguments on a motion by the library board to
dismiss the case. The American Civil Liberties Union has joined the
suit on behalf of several nonprofit groups and a newspaper columnist
whose Internet material was rendered inaccessible by the software. 

The case comes at a time when lawmakers are seeking new ways to
regulate on-line sexual content. Last year, in a victory for the
ACLU, the Supreme Court overturned the Communications Decency Act, a
federal law that would have made it illegal to transmit indecent
material to minors on line. Holding that the potential harm to
constitutionally protected adult speech outweighed the government's
interest in protecting children from inappropriate material, the
Court compared the Web to "a vast library including millions of
readily available and indexed publications." 

How those publications are packaged is at issue in the Loudoun case.
Because there is no direct precedent, legal experts say that a
decision may hinge largely on what real-world metaphor for the
electronic library the court accepts. 

The library board likens clicking on a link to a Web site to a book
request via inter-library loan, which a library is under no First
Amendment obligation to satisfy. The plaintiffs argue that cordoning
off certain parts of the Internet is like purchasing an encyclopedia
and cutting out the articles that do not meet with a librarian's
approval. 

"It does raise novel issues," said Ken Bass, a lawyer representing
the library's board of trustees. "The Internet makes available at no
increased marginal cost a realm of information once you have the
technology to acquire part of it. But that still does not mean you
can require the library to be a transmission mechanism for that
information." 

ACLU lawyers contend that the Supreme Court's concern for the
hypothetical harm to adult speech in overturning the Communications
Decency Act should serve as a guide in the Loudoun library case. 

"All of those rights that were safeguarded by the Court's decision
are in jeopardy again," said Ann Beeson, an ACLU lawyer who led
opponents of the Communications Decency Act. "The democratic nature
of the medium could be completely destroyed if only the 'haves' have
access to the medium. That's why we feel it is very important to
preserve full public access at libraries." 

But proponents of the library policy say that the federal
government's failure to come up with a law to regulate indecency in
cyberspace makes it all the more crucial for local governments to
adopt their own safeguards. And they note that no law has ever
required a library to purchase a particular book or subscription that
it did not want. 

Whichever way the legal dispute is resolved, the case reflects the
Internet's remarkable capacity to animate ordinary Americans around a
discussion of fundamental values. In Loudoun County, where the
Constitution was temporarily housed during the War of 1812 -- exactly
where is a matter of some dispute -- the collision of technology and
traditional institutions is not taken lightly. 

"I believe in discipline," said Jerome Smith, 46, a high school
football coach who is one of the eight plaintiffs in the lawsuit
against the library board. "I believe in setting parameters. But I
have a daughter who is an honors student, and I also believe she
should be able to get access to anything she needs in the library." 

But the library board, which approved the policy on a vote of 5 to 4,
clearly has its supporters. Richard H. Black, the board member who
wrote the policy, won a seat in the Virginia House of Delegates in a
special election earlier this month after a campaign that made the
policy a centerpiece. 

"I don't want my tax dollars paying for my kids to see pornography in
the library," said Pamela L. Grizzle, 32, a lawyer in Leesburg, where
the Loudoun County library is located. 

Similar disputes are taking place in communities from Austin, Texas
-- where all 52 computers use software filters -- to rural Kern
County, Calif., which under threat of a lawsuit by the ACLU recently
agreed to provide two computers in each branch, one with a filter
program activated and one without. 

Several libraries have emulated the Boston Public Library, which
after public outcry installed filter programs only on computers in
children's rooms. 

Last summer, the American Library Association adopted a resolution
condemning the use of filter programs to block constitutionally
protected speech. 

"I would like to see a precedent set so that library boards and
others who are considering filtering will be able to see the big
picture," said Steven Herb, chairman of the association's
Intellectual Freedom Committee. 

That precedent may well be set in Loudoun County, where library users
logged more than 1,000 hours on the Internet in the first two months
that it was available, library statistics show. 

None of those hours were logged by Henry Taylor, a professor of
creative writing at American University who grew up in Loudoun County
and later won a Pulitzer Prize for his poetry. Mistrustful of the
library's computers, Taylor saves his searches -- a recent one, drawn
from a line of poetry, was for "hotheaded naked ice borers," -- for
the days he travels 60 miles to his campus office. 

"Over the long haul," Taylor said, "I owe that library a lot. And it
feels bad to think that its policies are being guided by people who
would have been less help to me when I was a kid." That is why, he
said, he interrupted his own poetry reading at the library branch in
Lovettsville last fall. 

"I am sorry to report that this next poem is being prevented from
reaching you by software over which you have no control," Taylor told
his audience. "So we will have a few minutes of silence."

Copyright 1998 The New York Times Company
* * * * * * * * * * * * * *  From the Listowner  * * * * * * * * * * * *
.	To unsubscribe from this list, send a message to:
majordomo at scn.org		In the body of the message, type:
unsubscribe scn
END