PURCHASE OF BLOCKING SOFTWARE BY PUBLIC LIBRARIES IS UNCONSTITUTIONAL

A Briefing Paper by Jonathan D. Wallace, Esq.
jw@bway.net

(revised November 9, 1997)

The following is intended for use by free speech advocates to oppose the installation of blocking software such as Cyberpatrol, Surfwatch, NetNanny or Cybersitter in public libraries. Permitted uses include basing your own correspondence or documents upon the research presented here, excerpting this document, or presenting it in its entirety to the people you are trying to influence. Please redistribute freely.

Jonathan D. Wallace, Esq., is a New York City-based attorney, author and free speech advocate. He is the co-author, with Mark Mangan, of Sex, Laws and Cyberspace (Henry Holt 1996), and with Michael Green of two forthcoming law review articles, "Curing Metaphor Deficiency: The Internet, The Printing Press and Freedom of Speech" (Seattle University Law Review) and "Anonymity, Democracy and Cyberspace" (Hofstra Journal of Law and Legislation).

Public libraries in Austin, Boston and elsewhere have decided to install blocking software on computers connected to the Internet. Other libraries around the United States are considering purchasing such software. The purpose of this paper is to summarize, for readers who are not themselves attorneys, the legal precedents that establish that the installation of blocking software by public libraries is unconstitutional under the First Amendment.

Blocking software is defined as software products published by commercial software publishers which do any of the following: block access to Internet sites listed in an internal database of the product; block access to Internet sites listed in a database maintained external to the product itself; block access to Internet sites which carry certain ratings assigned to those sites by a third party, or which are unrated under such a system; scan the contents of Internet sites which a user seeks to view and block access based on the occurrence of certain words or phrases on those sites. Blocking software products currently on the market include Safesurf, Surfwatch, NetNanny, CyberPatrol and Cybersitter.

It has been widely reported recently that these products go far beyond blocking "pornography". In fact, most block sites containing speech which is clearly First Amendment protected, such as the National Organization for Women site (http://www.now.org), blocked by Cybersitter, and the Electronic Frontier Foundation archive (http://www.eff.org), blocked by CyberPatrol. More information on political and lifestyle sites blocked by these products is available on the Peacefire Web pages , and in The Ethical Spectacle, maintained by the author of this paper. (. (Please note that both of these sites were themselves blocked by Cybersitter for their criticism of the product.)

Most advocates of the use of blocking software by libraries have forgotten that the public library is a branch of government, and therefore subject to First Amendment rules which prohibit content-based censorship of speech. These rules apply to the acquisition or the removal of Internet content by a library. Secondly, government rules classifying speech by the acceptability of content (in libraries or elsewhere) are inherently suspect, may not be vague or overbroad, and must conform to existing legal parameters laid out by the Supreme Court. Third, a library may not delegate to a private organization, such as the publisher of blocking software, the discretion to determine what library users may see. Fourth, forcing patrons to ask a librarian to turn off blocking software has a chilling effect under the First Amendment. These points are each discussed at greater length, with citations to significant cases, below.

I. The Pico Case Bans The Use of Blocking Software in Libraries

In the leading case of Island Trees Board of Education v. Pico, 457 U.S. 853 (1982), the local board ordered removal from the school library of books including Bernard Malamud's The Fixer and Richard Wright's Black Boy. The Supreme Court held:

Our Constitution does not permit the official suppression of ideas.... In brief, we hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.".... Such purposes stand inescapably condemned by our precedents.

Although Pico dealt expressly with the removal of books, it governs the use of blocking software for two reasons. First, blocking a Web site is analogous to removing a book. Second, Pico strongly implies that even the acquisition of books must be carried out according to certain standards imposed by the First Amendment. Therefore, whether you compare blocking Internet sites to removing books from the library or simply failing to acquire them, Pico suggests that the blocking of First Amendment-protected Internet content is illegal.

i. The installation of blocking software by libraries constitutes an unconstitutional removal of materials from the library.

The blocking of a web site is analogous to the removal of a book from a shelf.

A library installing computers with full Internet access has, in effect, acquired the entire contents of the Internet. Blocking software which screens out sites based on their inclusion in a database of impermissible sites, or blocks them based on the occurrence of banned words or phrases, is effectively removing these resources from the library. Just as the board of education did in Pico, someone has gone through a thought process which resulted in the removal of materials based on their disfavored content.

A court scrutinizing the constitutionality of blocking software in public libraries will certainly look closely at the process a software publisher follows in deciding to add a site to the blocked list. A site may be scanned for keywords by a software "spider" and then reviewed by a human being, or a human being may look at the site as a matter of first instance after hearing about it from another source or finding it in a search engine. In either case, the person reviewing the page is likely to be a low-compensated or part-time worker who spends only a few moments looking at a particular page before adding it to the blocked list. This accounts for the blocking by every available product of numerous pages pertaining to freedom of speech, AIDs, safe sex and other matters, as the presence of a keyword like "sex", "condoms", "gay" or "pornography" on a Web page is usually sufficient to cause it to be added to the blocked list.

The thought process followed by the worker deciding to add a site to the blocked list bears no resemblance to that of a trained professional, the librarian, deciding to acquire a book for the library. It is, however, identical to the thought process of a harried censor rapidly scanning a printed work for suspect words or phrases, without taking the time to understand the work or place the suspect terms in context.

Therefore, the installation of blocking software in a public library directly violates Pico's ban on the content-based removal of works from the library.

ii. Pico also implies that the First Amendment governs the acquisition of content by the library.

The pro-blocking forces rely on the Court's statement in Pico that:

As noted earlier, nothing in our decision today affects in any way the discretion of a local school board to choose books to add to the libraries of their schools. Because we are concerned in this case with the suppression of ideas, our holding today affects only the discretion to remove books.

Advocates of blocking argue that a library has no legal obligation to buy any particular book or to allow the viewing of any particular Web site. However, this reliance on Pico is misplaced. In limiting its decision to the facts before it, the Court was clearly not holding that a librarian could legally follow any imaginable agenda in the selection of books for acquisition.

For example, it would not be constitutional for a public librarian to refuse to purchase anything by Malamud or Wright, based on the concerns of the Pico schoolboard. Similarly, a public librarian could not decide only to purchase books approved by the Christian Coalition.

Pico's subtext is that only the librarian, and not anyone else, should decide what the library is to offer, and that the librarian is expected to do so pursuant to the standards of his or her profession. When a library installs blocking software, it chooses to exclude First Amendment-protected, socially valuable sites based on the obscure criteria or political agenda of the blocking software publisher. This point is further discussed in the next two sections.

II. The Criteria Used By Blocking Product Publishers Are Vague and Overbroad and May Not Legally Be Adopted by Public Libraries

While certain speech, such as obscenity, is considered outside the protection of the First Amendment and can be barred at will, the Constitution provides significant barriers to rules pertaining to protected speech. When a library installs blocking software, it is enforcing a set of rules determining which protected speech its users can access . These rules are inherently suspect under First Amendment principles and are likely to be held unconstitutional. In general, government rules regulating protected speech must be narrowly tailored to serve a compelling government interest. Rules that are overbroad or vague, and which attack too much speech, will almost inevitably fail.

There is a certain irony in the failure of many commentators to draw the appropriate parallel between last June's ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996) , aff'd __ U.S. ____ (1997), decision holding the Communications Decency Act (CDA) unconstitutional, and today's library controversy. The CDA banned speech on the Internet "depicting or describing" sexual "acts or organs", even if that speech otherwise had significant social value. A panel of three federal judges held the CDA to be over-broad, in that it would ban much valuable speech online. The examples given by the court included newsworthy reporting of female genital circumcision in Africa, and the dissemination of safe sex information. Advocates of the use of blocking software by libraries have failed to explain why, if the government could not directly ban the National Organization for Women pages via the CDA, it can do so indirectly through the use of blocking software. A public library's installation of blocking software in effect circumvents the ACLU v. Reno ruling, by creating a customized Communications Decency Act applicable to the library's users.

Although the court mentioned blocking software in its statement of fact, nothing in the decision can be construed to imply that the use of blocking software by a library or any other government entity would be constitutional.

It is a constant of First Amendment cases that speech rules, in order to be constitutionally acceptable, must be clear enough to communicate to citizens which speech is legal and which is not. There is no consistent set of standards followed by blocking products, and almost all of the publishers refuse to disclose their database of blocked sites. Several have published the rules they follow in determining which sites to block; here is one example:

"CYBERsitter Site Blocking Policies

The CYBERsitter filter may block web sites and/or news groups that contain information that meets any of the following criteria not deemed suitable for pre-teen aged children by a general consensus of reports and comments received from our registered user

- Adult and Mature subject matter of a sexual nature.

- Pornography or adult oriented graphics.

- Drugs or alcohol.

- Illegal activities.

- Gross depictions or mayhem.

- Violence or anarchy.

- Hate groups.

- Racist groups.

- Anti-semitic groups.

- Advocating of intolerance.

- Computer hacking.

- Advocating violation of copyright laws.

- Any site that publishes information interfering with the legal rights and obligations of a parent or our customers.

- Any site maintaining links to other sites containing any of the above content.

- Any domain hosting more than one site containing any of the above content.

The above criteria is subject to change without notice."

These criteria, if adopted by government to determine which speech to ban, would be struck down as unconstitutional just as quickly as a civil liberties organization could race into court and get a decision. These criteria as written ban speech about the listed items, in most cases even if the speech opposes the subject matter. For example, the ban on information about "drugs or alcohol" is so broadly written as to include sites maintained by anti-drug organizations or by Alcoholics Anonymous. Note that almost all of the criteria pertain to speech that, though disfavored by most people, is clearly constitutionally protected, and may legitimately be the subject of a child's research project: hate speech, speech about intolerance, and speech about illegal activities are three examples. None of the criteria make any exception for materials with social value. Thus the criteria would not permit a teenager to research a report about the Holocaust, which might fall under the ban on "gross depictions or mayhem", antisemitism or hate speech. If this seems unlikely, it isn't; CyberPatrol at one point blocked Nizkor, an important Holocaust archive, because it contained "hate speech." In fact, the criteria made available by every publisher of blocking software are equivalently vague. As the Supreme Court said in a leading case involving a Dallas movie rating scheme, " the restrictions imposed cannot be so vague as to set 'the censor....adrift upon a boundless sea...' In short, as Justice Frankfurter said, 'Legislation must not be so vague, the language so loose, as to leave to those who have to apply it too wide a discretion.'" Interstate Circuit v. Dallas, 390 U.S. 676 (1968).

In summary, the criteria followed by every existing blocking product are far too vague and broad to meet the exacting standards of ACLU v. Reno and decades of Supreme Court precedents, even if the library had adopted these criteria itself. As we will see in the next section, the delegation by the library of its decision-making to private parties--the publishers of blocking software--is also unconstitutional.

III. A Library Cannot Relegate to Private Parties The Authority to Determine What Its Users Can See

Although the installation of blocking software by a library may be a politically expedient solution, it involves an illegal delegation of the library's authority to third parties. Since the library itself, as we established in the section above, could not validly enforce vague rules, it does not avoid the exacting requirements of the First Amendment by abdicating responsibility to the blocking software publisher.

For example, federal courts have established that government cannot enact laws granting legal enforcement to the private ratings of the Motion Picture Association of America (MPAA). In MPAA v. Spector, 315 F.Supp. 824 (ED Pa. 1970), the court dealt with a Pennsylvania law making it a crime to permit a child to see a movie rated "R" or "X" under the MPAA scheme. The court held the law unconstitutional:

The evidence clearly established that the Code and Rating Administration of the Association has itself no defined standards or criteria against which to measure its ratings. ...[I]t is manifest from a reading of Act No. 100 that, however well-intended, it is so patently vague and lacking in any ascertainable standards and so infringes upon the plaintiffs' rights to freedom of expression, as protected by the First and Fourteenth Amendments to the Federal Constitution, as to render it unconstitutional....[T]the attempted recourse to Association ratings is of no avail.

Other federal courts have agreed that " it is well-established that the Motion Picture ratings may not be used as a standard for a determination of constitutional status", Swope v. Lubbers, 560 F.Supp. 1328 (W.D. Mich. 1983). As one judge tartly observed in Engdahl v. Kenosha, 317 F.Supp. 1133 (E.D. Wis. 1970):

This determination as to what is proper for minors in Kenosha is made by a private agency, the Motion Picture Association of America. It was conceded at the hearing upon the present motion that if the Motion Picture Association utilized any standards whatsoever in reaching its judgments as to what is an 'adult' movie, the defendants are not aware of what these standards are.

Similarly, most public libraries buying blocking software will do so with only a vague awareness, at best, of the standards (if any) followed by the software publisher.

Under these clear legal precedents, a library cannot block its users from accessing Internet sites based upon a vague or undisclosed set of standards implemented by the publisher of the blocking software.

IV. Requiring a Patron To Ask The Librarian To Turn Off Blocking Software Causes an Unconstitutional Chilling Effect

Some blocking software allows the user to turn off particular categories of blocking, or to permit access selectively to blocked sites. Pro-blocking advocates argue that even when a product blocks a site erroneously, no harm is done, as the library user can request that the librarian grant access to it.

This argument ignores significant Supreme Court precedents which hold that forcing someone who wishes to read controversial speech to request access to it chills the dissemination of such speech and is therefore is a violation of the First Amendment.

In the case of Lamont v. Postmaster General 381 U.S. 301, 85 S.Ct. 1493 (1965), the Supreme Court invalidated section 305(a) of the Postal Service and Federal Employees Salary Act of 1962, 76 Stat. 840, which required postal patrons receiving "communist political propaganda" to specifically authorize the delivery of each such piece of mail. The Court found the Act to be unconstitutional "because it require[d] an official act (viz., returning the reply card) as a limitation on the unfettered exercise of the addressee's First Amendment rights." Id., at 304, 85 S.Ct. at 1495. The Court recognized the chilling effect such legislation would have on the exercise of freedom of expression by postal patrons, who may become dissuaded from accessing socially disfavored media:

This requirement is almost certain to have a deterrent effect, especially as respects those who have sensitive positions. Their livelihood may be dependent on a security clearance. Public officials like schoolteachers who have no tenure might think they would invite disaster if they read what the Federal Government says contains the seeds of treason. Apart from them, any addressee is likely to feel some inhibition in sending for literature which federal officials have condemned as 'communist political propaganda.' The regime of this Act is at war with the 'uninhibited, robust, and wide-open' debate and discussion that are contemplated by the First Amendment.

Justices Brennan and Goldberg, in a concurring opinion, said that "[T]he right to receive publications is....a fundamental right. The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them."

More recently, the Court was asked to decide a similar issue related to cable programming, in Denver Area Educational Telecommunications Consortium v. FCC, 116 S.Ct. 2374 (1996). In question was the constitutionality of section 10(b) of the Cable Television Consumer Protection and Competition Act of 1992, 106 Stat. 1486, 47 U.S.C. 532(h), 532(j), which required cable providers to segregate and block indecent programming, sending it only to subscribers who requested it in writing. The Court found that the section was overly restrictive, "'sacrificing' important First Amendment interests for too 'speculative a gain.'" The Court found that the "written notice" requirement would discourage viewers concerned with their reputations from accessing such channels for fear that their names might be disclosed to others.

Requiring librarians to drop what they are doing and unblock a site for a user is also an imposition on them. In Denver, the Court noted that the segregate and block requirement imposed "added costs and burdens....upon a cable system operator", encouraging the latter to ban the speech entirely to avoid the burden of unblocking it.

Conclusion

The installation of blocking software by a public library is clearly unconstititutional under relevant First Amendment case law.

Please contact Jonathan Wallace at jw@bway.net with any comments or questions. For more information and for updated copies of this document, check the Censorware page.