Burning Cyberbooks in Public Libraries: Internet Filtering Software vs. The First Amendment

Posted: 3 May 2010 Last revised: 18 May 2014

See all articles by Junichi P. Semitsu

Junichi P. Semitsu

University of San Diego School of Law

Date Written: April 30, 2010

Abstract

The decision whether to install internet filters is currently bedeviling many of the approximately 11,600 public libraries that currently provide Internet access. Those that choose to install filters find every patron and her mother decrying censorship, as patrons are blocked from innocuous, important, and educational sites. Indeed, it is conceivable that a library patron would be completely blocked from discovering why the House of Representatives impeached President Clinton since the words “oral sex” beg to be blocked by most filters.

But those that choose not to install filters face equally serious consequences. The risk posed by unfiltered computers increases with the growing amount of “dangerous” and illegal material on the Internet, as well as the increasing likelihood that a web surfer could unwittingly encounter pornographic images. For example, a Portuguese hacker recently hijacked twenty-five million web pages, including the Harvard Law Review page, causing visitors to these sites to be instantly bounced to seamy images of “lurid sex scenes” offered by an Australian pornography company; the offended web surfer had no choice but to turn off the computer to eliminate the pornographic images. Even though this was a rare incident and even though no library patron may ever visit the Harvard Law Review web site, documented incidents of exposure to obscene images has prompted a pro-filtering organization to announce that the public library has become “a place of dangerous access to hard-core pornography, child pornography and pedophiles.”

This controversy leaves librarians in a lose-lose situation. Worse yet, several libraries that chose to install filters, as well as some that refused to limit access, have been sued by outraged patrons. These embattled libraries found themselves dragged into a judicial arena without clear precedent: until recently, no federal court had reached a decision on the merits of this issue.

This piece explores the First Amendment issues raised by filtering software in public libraries. Part I offers a brief introduction to how filtering technology works. Part II provides a cursory overview of the legal battles resulting from the policy routes that various libraries have chosen. Then, Part III discusses how current First Amendment jurisprudence might apply to public libraries that install filtering software on their computers. In particular, this part explores whether these filters operate as an invalid prior restraint and whether they are the least restrictive means of furthering a compelling government interest. This part also explores whether the public forum analysis and the overbreadth doctrine apply. Finally, Part IV discusses the options available to a library attempting to respond to parents’ concerns over minors’ access to “harmful materials.” Part IV presents a draft library policy that goes as far as possible to respond to these concerns without violating the First Amendment.

Keywords: filters, Internet, cyberlaw, First Amendment, free speech, libraries

Suggested Citation

Semitsu, Junichi P., Burning Cyberbooks in Public Libraries: Internet Filtering Software vs. The First Amendment (April 30, 2010). Stanford Law Review, Vol. 52, No. 509, 2000. Available at SSRN: https://ssrn.com/abstract=1598496

Junichi P. Semitsu (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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