The First Amendment's Limitations on the Use of Internet Filtering in Public and School Libraries: What Content Can Librarians Exclude?

Abstract

This article asserts that the First Amendment permits libraries to use private-sector software to filter Internet access as long as the filters do not attempt to favor one socio-political viewpoint over another. It challenges the 1999 federal court's finding in the Loudoun County Library case that libraries offering Internet access face no economic constraint on offering unlimited access. It criticizes that decision as faulty economic analysis as well as disputing the Loudoun court's public forum analysis. The article contends that librarians may use filters to manage patrons' use of the library's limited resources to maximize computer terminal availability for accessing the categories of content chosen by librarians to be in their collections. Thus, libraries are free to block access to websites providing material outside that scope, including "protected speech," e.g., shopping services and non-obscene photos advertised as XXX. Libraries may also use removable filters to empower parents to diminish their children's access to adult material. The article argues, however, that the First Amendment requires libraries using filters to 1) understand the criteria that the filter uses to exclude content, and 2) have the ability and resources to correct the viewpoint discrimination that filters are likely to generate. Furthermore, it concludes that the issue of library filtering of Internet access is not so much an issue of cyberspace law as one of the First Amendment's more general limitations on librarian discretion in the selection of content. In a nutshell, it finds that filters should be held to the First Amendment standards as the librarians who make purchase and removal decisions.