FOR EDUCATIONAL USE ONLY
Copr.
© West 2000 No Claim to Orig. U.S. Govt. Works
45
WAYNLR 327
(Cite as: 45 Wayne L. Rev. 327)
Wayne
Law Review
Spring,
1999
Note
*327 THE FIRST AMENDMENT IMPLICATIONS
OF PLACING BLOCKING SOFTWARE ON PUBLIC
LIBRARY
COMPUTERS
Brigette
L. Nowak
©
Wayne State University; Brigette L. Nowak
I.
INTRODUCTION
The Internet has gained tremendous
popularity within recent years. By
1996, approximately forty million people used the Internet. [FN1] This number is expected to increase to two
hundred million by 1999. [FN2] The
Internet offers an avenue for the free exchange of ideas and information. A voluminous amount of information is
readily available with only a few key strokes.
The ease at which information is available
to an Internet user, however, is not without its disadvantages, as children can
easily access material that may or may not be appropriate for their viewing. The public's concern over the availability
of such material to children through the Internet prompted the adoption of the
Communications Decency Act of 1996 (CDA). [FN3] The CDA made it a criminal offense for an individual to make a
"knowing transmission" [FN4] of "obscene or indecent" [FN5]
material, or to use an interactive computer service in a manner as to make such
material available to persons under eighteen years of age. [FN6] In Reno v. ACLU, [FN7] the Supreme Court
ruled that the CDA violated the First Amendment because it was overly vague and
overly broad. [FN8]
The ease of obtaining information from the
Internet has also prompted public libraries to take certain steps to restrict
children's access to the Internet. Recently, on September 9, 1997, the City of
Warren, Michigan, passed a resolution to install blocking software *328 on all Warren public library
computers. [FN9] The blocking software
is intended to "den y access to
pornographic and/or obscene materials on public library computers." [FN10]
Such a resolution is illustrative of the public's concern over children's
access to harmful material.
A public library's installation of blocking
software on all of its computers is problematic for a variety of reasons. First, a public library or city may seek to
block material that is constitutionally protected by the First Amendment. The Constitution protects the rights of
adults to receive ideas and information, as well as the right of self‑expression.
[FN11] The Court's ruling in Reno
illustrates that communication through the Internet enjoys the same First
Amendment protection as self expression, magazines, and books. [FN12] As the Reno Court explained, restrictions on
adults' First Amendment rights, in order to protect children from potentially harmful
material available on the Internet, will not be tolerated by the Constitution.
[FN13] Second, while a policy put in
place by a city or library may not be aimed at blocking constitutionally
protected speech, the imprecision of blocking software can result in the
inaccessibility of protected information to patrons. [FN14]
*329 This Note focuses on the constitutional ramifications facing
those public libraries that utilize blocking software, which is intended to
prevent children from gaining access to certain material available on the
Internet. [FN15] The Background section
traces the history of public libraries, in order to provide a historical
context of the role of libraries vis‑a‑vis the First
Amendment. The Background section also
explores prior Supreme Court rulings regarding the First Amendment. This Note argues that use of blocking
software on all public library computers, in order to restrict children's
access to certain material, violates adults' First Amendment rights to view
and/or receive such material.
In the Analysis, this Note explores the
implication of the Supreme Court's ruling in Reno on public libraries'
implementation of blocking software. [FN16]
Furthermore, this Note will analyze past Supreme Court decisions, in
order to provide a constitutional framework for supporting the proposition that
blocking software on public library computers violates the First
Amendment. Finally, this Note will
propose ways that libraries can monitor children's access to the Internet in a
manner that does not violate adults' First Amendment rights.
II. BACKGROUND
A. American Library Association
The American Library Association (ALA)
strongly supports *330 intellectual
freedom. [FN17] The ALA has formulated
a handbook that outlines its position on intellectual freedom. [FN18] The handbook states in pertinent part that
intellectual freedom can exist only if the public has unrestricted access to
materials and information regardless of the content of the material.
[FN19] Thus, the ALA does not regard
libraries' role as one of gatekeepers of information. In fact, public libraries have traditionally taken the stance
that libraries, unlike schools, do not stand in loco parentis. [FN20] The ALA supports the proposition that public
libraries should effectuate the dissemination of information to all patrons.
[FN21] The ALA's Library Bill of Rights
explicitly states that libraries will not deny an individual access to
information on the basis of age. [FN22]
*331 With the advent of the Internet, the ALA has directly addressed
libraries' role in regulating patrons' access to the Internet. [FN23] In An Interpretation of the Library Bill of
Rights, the ALA states that libraries should not restrict individuals' access
to the Internet based upon age or based upon the content of the information.
[FN24] The *332 Interpretation illustrates the ALA's firm stance that
libraries are not the gatekeepers of information; patrons are responsible for
deciding which material is appropriate for their own viewing, and parents must
determine what material is suitable for their children. [FN25]
In 1997, the ALA directly addressed the
implication of blocking software on library computers. [FN26] In its Resolution on the Use of Internet
Filters, the ALA interpreted the Supreme Court's decision in Reno [FN27] as
holding "that libraries that make content available on the Internet can
continue to do so with the same constitutional protection that apply to the
books on libraries' shelves." [FN28]
The ALA concluded that libraries using blocking software that blocks
constitutionally protected speech may be subjected to legal liability for
restricting speech. [FN29] The ALA's
resolution further stated that the libraries' use of blocking software to
prevent access to constitutionally protected violates the Library Bill of
Rights. [FN30] Thus, the use of
blocking software by public libraries is not consistent with the ALA's
position.
*333 B. The First Amendment
The First Amendment provides that
"Congress shall make no law ... abridging the freedom of speech."
[FN31] The First Amendment guarantees
the right to freedom of speech, as well as the right to receive ideas and
information. [FN32] The Constitution,
however, does not equally protect all speech. [FN33] Governmental regulation of protected speech is subject to
different levels of scrutiny, depending upon whether the regulation is content‑based
or content‑neutral. [FN34]
1. Unprotected Speech
Certain types of speech are not protected by
the First Amendment. The government is
constitutionally permitted to completely ban unprotected speech. [FN35] Advocacy of illegal conduct, [FN36] child
pornography, [FN37] and fighting words [FN38] are examples of unprotected
speech. Obscene material also does not
enjoy protection by the First Amendment. [FN39] In Miller v. California, [FN40] the *334 Supreme Court addressed and remedied the inconsistencies
between its prior rulings in Roth v. United States [FN41] and Memoirs v.
Massachusetts [FN42] regarding obscenity.
The lack of concrete standards for determining what constituted
obscenity prompted the Supreme Court to formulate a new test. [FN43] The Miller Court formulated a three‑prong
test for identifying obscene material. [FN44]
This test rejects the Memoirs ruling that material was obscene only if
it was "utterly without redeeming social value." [FN45] According to
the Miller Court, material is obscene if the work lacked any literary,
artistic, scientific, or political value. [FN46] Also, the Miller test requires that the courts use the standards
of the community, rather than national standards, to determine whether material
is obscene. [FN47] Under the Miller
test, states can only ban material that depicts or describes "hard core
sexual conduct." [FN48]
*335 2. Government Regulation of Protected Speech
a. Content‑Based Restrictions on Speech
Governmental regulation of speech falls into
two separate categories. [FN49] In the first category, the regulation is
"aimed at the communicative impact" [FN50] of the speech and is thus
a content‑based restriction on speech.
A governmental regulation on speech is deemed to be content‑based
"if on its face a governmental actions is targeted at ideas or information
that the government seeks to suppress" or if the governmental regulation,
though facially neutral, is "motivated by an intent to single out
constitutionally protected speech for control or penalty." [FN51] Content‑ based restrictions on speech
are subject to strict scrutiny. Thus,
the regulation must serve a compelling state interest and be narrowly drawn to
achieve that goal. [FN52]
b. Content‑Neutral Restrictions on Speech
The second category encompasses governmental
regulations that are aimed at restricting speech on the basis of its
"noncommunicative impact." [FN53] Content‑neutral regulations
"seek a goal independent of communicative content or impact, with the *336 indirect result that the flow of
information or ideas is in some significant measure constricted."
[FN54] The forum [FN55] in which speech
occurs is pivotal in determining if a content‑ neutral regulation is
constitutional, as courts apply different levels of scrutiny depending upon the
forum. [FN56]
Governmental regulations of speech that
occur in public fora will only pass constitutional muster if the regulations
"are narrowly tailored to serve a significant government interest, and
leave open ample alternative channels of communication." [FN57] Those places, which by "long tradition
or by government fiat," [FN58] that "have been devoted to assembly
and debate" [FN59] constitute public fora. [FN60] Public fora include streets, sidewalks, and
parks. [FN61]
The second type of a forum is a limited
public forum, which "consists of public property which the state has
opened for use by the public as a place for expressive activity."
[FN62] In determining if a *337 forum constitutes a limited
public forum, the courts assess the governmental intent, the extent of the use,
and nature of the forum. [FN63]
Municipal theaters, school board meetings, and public university meeting
places are considered limited public fora. [FN64] Public libraries have also been categorized as limited public
fora. [FN65] Regulations on limited
public fora are subject to the same levels of scrutiny as regulations on
traditional fora. [FN66] Thus, a
content‑neutral regulation on speech in a limited public forum will be
constitutionally permissible only if the regulation is "narrowly tailored
to serve a significant government interest, and leave s open ample alternative channels of
communication." [FN67] Likewise,
content‑based restrictions on speech in a limited public forum are
subject to strict scrutiny. [FN68]
The final category is non‑public fora.
[FN69] A non‑public forum is
public property that has not traditionally nor by designation been used for
public communications. [FN70] An
example of a non‑public forum is a school's internal mailing system.
[FN71] A governmental regulation of
speech at a non‑public forum must meet the following criteria: First, the
regulation must be reasonable in light of the function of the of the forum, and
second, the regulation must be viewpoint neutral. [FN72]
*338 C. Reno v. ACLU [FN73]
Two provisions of the Communications Decency
Act of 1996 [FN74] (CDA) were challenged in Reno. [FN75] The first provision of the CDA *339 held an individual criminally
liable for the use of a "telecommunications device" to transmit any
communications of an "obscene or indecent" nature to a person known
to be under eighteen years of age. [FN76]
The second provision made it a criminal offense for a person to use
computer service in a manner that made "patently offensive" material
or language available to an individual under eighteen years of age. [FN77]
The Supreme Court held that the CDA violated
the First Amendment. The Court found
the ambiguities surrounding the scope of the CDA problematic. [FN78]
Particularly troublesome for the Court were the different linguistic forms used
in the CDA. [FN79] One part of the CDA
used the term "indecent" to describe the material prohibited from
transmission through the Internet, [FN80] while another part referred to such
prohibited material as "patently offensive." [FN81] Because the CDA failed to define these
terms, the majority ruled that the use of the terms would prove problematic for
speakers, as they would not know the interrelationship between the standards or
the meanings of each of the standards. [FN82]
Accordingly, the ambiguity of the terms decreased the likelihood that
the CDA was "carefully tailored to the congressional" [FN83] aim of
shielding minor children from potentially harmful material available on the
Internet. [FN84]
According to the Court, the CDA's vagueness
was particularly problematic for two reasons. [FN85] First, the fact that the CDA was a "content‑based
regulation of speech" [FN86] implicated "special First *340 Amendment concerns" [FN87]
because of the possible chilling effect such a regulation could have on speech.
[FN88] The Court also noted that the
criminal nature of the CDA presented a concern because such criminal sanctions
could have a chilling effect on speech. [FN89]
The sanctions could cause people to refrain from lawful communication,
in order to avoid possible punishment. [FN90]
The Supreme Court also found the CDA to be
overly broad. [FN91] As written, the
CDA would "effectively suppress a large amount of speech that adults have
a constitutional right to receive and to address to one another." [FN92] According to the Court, such a "burden
on adult speech is unacceptable if less restrictive alternatives would be at
least as effective in achieving the legitimate purpose that the statute was
enacted to serve." [FN93] Although
obscene material may not enjoy First Amendment protection, the Court explained
that sexual expression deemed to be indecent does fall within the gamut of
speech protected under the First Amendment. [FN94] The Court stated that although the protection of children is a
governmental interest, such an interest does not justify overly broad
suppression of speech that is addressed to adults. [FN95] Accordingly, the government cannot
"'reduc e the adult population ...
to ... only what is fit for children."' [FN96] Thus, simply because the congressional purpose of a statute is
aimed at the protection of children from potentially harmful material does not
preclude an inquiry into the validity of
*341 a statute. [FN97]
D. Protection of Children and the Regulation of
Speech
It is within the constitutional power of
states to regulate the availability of sexually explicit material to children
in order to protect their well‑ being. [FN98] In Butler v. Michigan, [FN99] the court struck downa Michigan
statute that banned the sale of "adult" materials to adults.
[FN100] The state argued that the
statute was in place to "shield juvenile innocence." [FN101] The Court found the statute to be overly
broad. [FN102] According to the
majority, such a ban was tantamount to restricting adults to reading only that
material appropriate for children. [FN103]
In Ginsberg v. New York, [FN104] the Court
upheld a New York statute that banned the sale of materials to minors that was
deemed obscene to minors, even if the material was not obscene to adults.
[FN105] The appellant was charged with
selling "girlie" magazines to a sixteen year‑old boy, in
violation of the state statute. [FN106]
The majority stated that the statute did not violate the First Amendment
rights of adults, as the statute precluded only sales to *342 minors; thus, adults were not prohibited from receiving
constitutionally protected information. [FN107] The Court did not find the interest in protecting children from
potentially harmful material paramount to adults' First Amendment rights.
[FN108] Rather, the Court ruled that
the governmental interest in protecting children was well‑founded, and
the means employed by the state in restricting the access of such material to
children did not violate adults' rights to receive such material. [FN109]
In FCC v. Pacifica Foundation, [FN110] a
plurality ruled that the FCC could regulate the time of day that indecent,
though not obscene, radio broadcasts could be aired. [FN111] In reaching its holding, the Court
considered the context in which the program was broadcasted. [FN112] The Court based its decision on the fact that
radio broadcastings were very accessible to children, and also upon the fact
that such broadcast could enter the home by surprise. [FN113] The Court now narrowly construes Pacifica to
apply only to those communications not completely banned by the regulation in
place, and also to those communications that are "uniquely
pervasive," such that they can enter the home without warning. [FN114]
In Sable Communications of California, Inc.
v. FCC, [FN115] the Supreme Court ruled a federal statute banning "dial‑a‑porn" *343 messages violated the
Constitution. [FN116] While the ban on
obscene messages was constitutional, the ban on indecent messages violated the
First Amendment. [FN117] The Court
recognized that a compelling interest in protecting the well‑being of
children existed. This compelling
interest, however, did not justify a complete ban on such messages.
[FN118] The majority stated that there
were less restrictive means available to achieve the congressional goals of
protecting children from indecent communications. [FN119] The Court distinguished its ruling in
Pacifica. [FN120] First, the ban in
Pacifica was not a total ban, as was the ban in Sable. [FN121] Second, the
Court stated the telephone and the radio were different mediums; dialing a
phone number requires a person to take affirmative actions, while a radio
broadcast could intrude upon a listener's privacy without warning. [FN122]
E. Public Libraries and the First Amendment
1. The Right to Receive Information
Public libraries are considered governmental
actors, and thus, First Amendment suits can be brought against them.
[FN123] The First Amendment protects
individuals' rights "to receive information and ideas." [FN124] While
a library is not legally obligated to select certain books for circulation,
First Amendment concerns do arise when a
*344 library takes affirmative steps to remove books from its collection.
[FN125] The Supreme Court's decision in
Board of Education v. Pico [FN126] is illustrative of such concerns. In Pico, a public school board removed
certain books from the school's library that it characterized as "'anti‑American,
anti‑Christian, anti‑Semitic, and just plain filthy."'
[FN127] The school board justified its
action on the basis that it had a duty and moral obligation to protect the
students from the "moral danger" posed by the books. [FN128] A group of students brought suit alleging
that the books' removal violated their constitutional rights. The plaintiffs requested that the books be
returned to the library and that the school board refrain from removing books.
[FN129]
Justice Brennan, writing for the plurality,
stated that although the Court has recognized that schools possess rather broad
discretion concerning school affairs, the First Amendment imposes certain
restrictions on the government's discretion. [FN130] The Court explained that the First Amendment imposes limitations
on the government's discretion to remove books from a school library, [FN131]
because the First Amendment guarantees "public access to discussion,
debate, and the dissemination of information and ideas." [FN132] The special characteristics of a school
library "make s that environment especially appropriate for the
recognition of" [FN133] students' First Amendment rights. [FN134] The plurality held that local school boards
could not remove books from school libraries merely because "they dislike
the ideas contained in the books," [FN135] and thus "seek by their
removal to 'prescribe what shall be orthodox in *345 politics, nationalism, religion, or other matters of
opinion."' [FN136] The school
board, however, could remove books that were not educationally suitable.
[FN137] The Court remanded the case in
order to determine the motive of the school board in removing the books.
[FN138]
Justice Blackmun, in his concurrence, stated
that the issue presented before the Court was not the right to receive
information. Instead, the issue was how
to reconcile the First Amendment with the state's "authority to regulate
education." [FN139] After
balancing the competing interests, Justice Blackmun agreed with the plurality
that books could not be removed from a school library simply because the
administration did not approve of the ideas conveyed in the materials. [FN140]
Then Chief Justice Burger, in his dissent,
rejected the idea that public schools "must be the courier" [FN141]
of a speaker's ideas. [FN142] According to Justice Burger, a school board, in
inculcating fundamental values, [FN143] must make content‑based decisions
regarding the suitability of retaining books in a school library. [FN144] Accordingly, this role is contrary to the
plurality's view that a school library must be the courier of ideas. [FN145] Justice Burger concluded that discretion
should be exercised by the appropriate school authorities, not by judges.
[FN146] In concluding that no
restraints were placed on *346
students by the school's decision to remove books from the school library,
Justice Burger emphasized the point that the books banned by the school were
still available to students at public libraries. [FN147]
Then Justice Rehnquist, in his dissent,
stated that the government as educator is charged with the role of inculcating
knowledge and social values in young people. [FN148] As such, it is acceptable for schools to make educational
decisions on the basis of personal moral, political, and social views.
[FN149] Justice Rehnquist further
stated that school libraries were a supplement to the inculcative role of
elementary and secondary schools. [FN150]
He explained that " u nlike university or public libraries,
elementary and secondary school libraries are not designed for freewheeling
inquiry; they are tailored, as the public school curriculum is tailored, to the
teaching of basic skills and ideas." [FN151] Justice Rehnquist concluded that the government's actions as an
educator do not implicate the same constitutional concerns as the government's
actions as sovereign. [FN152]
Justice Rehnquist also stated that precedent
did not support the assertion that junior high and high school students were
constitutionally guaranteed a right to receive information; rather, students
are only guaranteed the right to expression. [FN153] The Justice did acknowledge that the denial to access of ideas
only inhibits a person's own acquisition of knowledge when the denial is
complete. He further explained that if
the denied ideas were easily available at another location, then the benefit
that could be gained from the exposure to those ideas were not foreclosed by
the government's actions. [FN154]
Justice Rehnquist noted that the books removed from the school were
readily available at the public *347
library. [FN155]
2. Public Libraries as a Limited‑Public
Forum
The degree to which the government is
permitted to limit access to ideas and information, as well as the extent to
which the government can regulate an individual's own speech, is dependent on
the forum. [FN156] Kreimer v. Bureau of
Police [FN157] is the only case addressing which type of forum constitutes a
public library. In Kreimer, the
appellee was a homeless man who was expelled from a public library on various
occasions for violating rules that governed patrons' conduct. [FN158] Kreimer brought suit alleging in pertinent
part that the library's rules were violative of his First Amendment rights.
[FN159] Specifically, he alleged that
the rules violated his right to receive ideas and information. [FN160]
The Kreimer court concluded that the library
constituted a limited public forum. [FN161]
In reaching its decision, the court evaluated the following factors:
governmental intent, extent of use, and the
*348 nature of the forum. [FN162]
In concluding that the government intentionally opened the library to
the public, the court took into consideration that the city was not obligated
to open a public library, that a state statute required that the establishment
of a public library be agreed to by a majority voters in the municipality, and
that the purpose of the rules in question was to allow patrons to use the
library to maximum extent. [FN163] The
court concluded that the library was open to the public for the following three
purposes: "reading, studying,
and using the Library
materials." [FN164] The library,
however, was not available for every First Amendment activity. [FN165] Finally, the court concluded that the nature
of the forum was compatible with certain expressive activity. [FN166] Libraries are places dedicated to beauty, to
quiet, and to knowledge. [FN167]
Therefore, First Amendment activities that are interactive are contrary
to the library's nature. [FN168] Thus,
a library, as a limited public forum, is required to allow only the exercise of
rights that are consistent with the library's nature and the government's
intent. [FN169]
F. Blocking Software
A library can purchase a variety of blocking
software. String‑ recognition
software operates in such a way that a Web page containing a prohibited word in
its URL is blocked. [FN170] There are
also Internet rating services, such as CYBERSitter. [FN171] CYBERSitter generates a list of
"objectionable sites." [FN172]
For instance, *349
CYBERSitter blocks the web site for the National Organization of Women.
[FN173] Other Internet rating services
include SafeSurf and RSACi, whose content providers rate their own web sites
based on algorithms. [FN174] The RSACi
system is "rule‑ based," [FN175] in that the algorithms are
made entirely of "simple focused questions" based on "yes"
or "no" answers. [FN176]
SafeSurf, on the other hand, is based upon "standards."
[FN177] For example, content providers
rate their sites along a continuum. [FN178]
These different types of filtering software all serve to limit access to
a variety of Internet sites. While some certainly would filter out
"obscene" material, they would also filter out more benign material
because the standard for obscenity cannot be programed into a computer.
III. ANALYSIS
In light of past Supreme Court rulings, the
installation of blocking software on all library computers violates adults'
First Amendment rights to receive information and ideas. Although it is constitutional for blocking
software to bar access to "obscene" material, [FN179] the regulation
of protected speech has First Amendment implications. Thus, if libraries install blocking software, then they may be
subject to lawsuits as a result.
A. Denial of Full Internet Access Is Akin to
Removal of Books from Library Shelves
The restriction of Internet access is akin
to a library removing books from its shelves.
The Internet is not a disjointed network, but rather it is a system of
interconnected computers. The Reno *350 Court compared the Internet to
"a vast library including millions of readily available and indexed
publications." [FN180] It is an
"international network of interconnected computers." [FN181] As a connection to the Internet makes
available every public document within computers linked to the Internet, a
library's installation of blocking software positively limits access to information. As such, First Amendment concerns arise when
a library installs blocking software on all of its computers.
Pico is the only Supreme Court case that
addresses the implications of removing books from a library's collection. Though the decision is a plurality, it does
support the proposition that the removal of books from a public library
implicates the First Amendment.
According to the Court, the removal of books from a school library
implicated the First Amendment because the Constitution guarantees individuals
public access to debate, discussion, and the dissemination of various ideas and
information. [FN182] Therefore, the use
of blocking software, which is analogous to removing books from a library,
raises First Amendment concerns because the blocking software denies adults the
right to receive information. Removing
books from a library's shelf is a positive step taken by the library to deny
access to information once available to the public. Similarly, installing blocking software is a positive step by the
library that denies information to patrons.
Like a book on a shelf, the Web pages and documents that make up the
Internet are available as soon as the library establishes a connection to the
Internet. By blocking access to certain
Web pages with blocking software, the library essentially takes information it
once provided and removes it, like a book removed from a library shelf.
The dissenting Justices' opinions also
support the argument that removing books from a public library implicates the
First Amendment. The arguments of the
dissenters were inextricably linked to the fact that the schools had a duty to
educate children, *351 and,
therefore, had discretion to decide what material was suitable to inculcate
fundamental values. [FN183] Such an
argument would not be applicable to public libraries. Public libraries, unlike
schools, are not empowered with the duty of inculcating ideas. Instead, as Justice Rehnquist stated in his
dissent, public libraries are "designed for freewheeling inquiry."
[FN184] The use of blocking software on
all of a public library's computers drastically hinders such "freewheeling
inquiry." Furthermore, adults enjoy
more First Amendment protection than do children. As the Reno Court stated, the government is precluded from
"'reduc ing the adult population
... to ... only what is fit for children."' [FN185]
B. Blocking Software as a Content‑Based
Restrictions on Speech
The use of blocking software on a library's
computers constitutes a content‑ based restriction on speech, as it is
aimed at the "communicative impact" of the speech. [FN186] Libraries install blocking software
specifically to restrict patrons' access to certain *352 information based upon the content of that information. The library, in choosing what Internet sites
are to be blocked, is making a value‑judgment as to what material is
appropriate and inappropriate for patrons.
For instance, the City of Warren wanted to install blocking software in
order to deny patrons access to material deemed pornographic. [FN187]
Prohibition of protected speech on the basis
of its content is presumptively unconstitutional. [FN188] Thus, a content‑based regulation of
protected speech is subject to strict scrutiny. [FN189] The burden is on the government to
demonstrate a compelling state interest and to prove that the regulation at
issue is narrowly drawn. [FN190]
Although there is a compelling state
interest in protecting children from potentially harmful information, [FN191]
any regulations on Internet access must be narrowly drawn. [FN192] The implementation of blocking software on
all of a library's computers is not the narrowest method of obtaining the
government's objective to protect children, because there are other less
restrictive alternatives that are equally as effective in achieving the state's
goal. [FN193]
C. Implications of Reno v. ACLU [FN194] on
Library Blocking Software
In Reno, the Court discussed its concern
with the overly broad scope of the Communications Decency Act (CDA).
[FN195] The Court pondered the CDA's
potential to chill adults' speech. [FN196]
The vagueness of the CDA could forestall speech, as people would not *353 know what speech violated the
CDA. [FN197] Also, the criminal
sanctions of the CDA could deter people from speech activities, rather than
communicate ideas, words, and images that may be arguably unlawful. [FN198] Furthermore, the CDA was not narrowly
tailored. [FN199] The Court stated that
"the CDA effectively suppress ed a
large amount of speech that adults have a constitutional right to receive and
to address to one another." [FN200]
The Court further stated that such a restriction on adult speech was
unconstitutional "if less restrictive alternatives would be at least as
effective in achieving the legitimate purpose" of the statute.
[FN201] While the Court has recognized
the government interest in protecting children from potentially harmful material,
the Court has unequivocally held that this interest does not justify "an
unnecessarily broad suppression" of adult speech. [FN202]
The Court's holding in Reno illustrates that
communication through the Internet receives the same constitutional protection
that is afforded to magazines, books, and self‑expression. Thus, the use of blocking software raises
concerns, as libraries may seek to block access to information that adults have
a constitutional right to receive. [FN203]
For instance, the City of Warren's Resolution states that blocking
software will be used to block access to pornographic material. [FN204] This is problematic, as pornographic
material is protected speech. [FN205]
Library blocking policies that target
protected speech, such as Warren's, must satisfy strict scrutiny. [FN206] The government must demonstrate that the
regulation furthers a compelling state interest *354 and is narrowly tailored to achieve that goal. [FN207] The protection of children from harmful
material is recognized as a compelling state interest. [FN208] A library or city's policy of using blocking
software on all public library computers, however, is not narrowly drawn if
there are less restrictive alternatives available that would be equally as
effective in achieving the legitimate goal. [FN209]
For instance, a less restrictive alternative
is monitoring of children's use of the Internet by library personnel. Library personnel could be stationed in
close proximity to the computer terminals, in order to supervise children's use
of the Internet. Another alternative is
that blocking software could be activated when the computers are used by
children and then deactivated when used by adult patrons. Finally, a library could utilize blocking
software on a limited number of computers that are designated for children's
use only.
While a library's policy may not be aimed at
prohibiting access to constitutionally protected speech, the imprecision of
blocking software can result in protected speech being blocked. [FN210] For instance, some blocking software blocks
Web pages simply because they are closely located to pages with "adult
content." [FN211] Thus, libraries
may be subject to lawsuits for information that they did not intend to block.
IV. CONCLUSION
While the Internet has been heralded as one
the best technological advances in the twentieth century, it has also raised
many legal issues that the law has previously never had to address. One such issue is the role of the government
in monitoring children's access to the Internet. In Reno, the Supreme Court found *355 that communications through the Internet enjoy the same First
Amendment protection as self‑expression, books, and magazines. The Court acknowledged that while protecting
children from any potential harm associated with the Internet is an important
governmental interest, efforts to protect children must be narrowly drawn in
order to preserve the First Amendment rights of adults. Prior Supreme Court decisions support the
proposition that libraries are subject to the First Amendment when they choose
to remove books from circulation. Such
content‑based restrictions on speech are subject to strict scrutiny.
The utilization of blocking software is
analogous to a library removing books from its shelves. Consequently, the library must satisfy the
strict scrutiny standard of review. A
library's behavior in implementing blocking software on all of its computers,
in order to protect children from potentially harmful materials, does not
satisfy strict scrutiny, as there are more narrowly tailored alternatives
available to satisfy the same compelling government interest.
V. ADDENDUM
In 1998, the Federal District Court for the
Eastern District of Virginia directly addressed the constitutionality of
blocking software on public library computers.
In Mainstream Loudoun v. Board of Trustees of the Loudoun County
Library, [FN212] the court ruled that the First Amendment was applicable to a
public library's restriction on Internet access. In Mainstream Loudoun, the court decided that the use of blocking
software on a public library's computers was a content‑based restriction
on speech. [FN213] As such, the library
was required to satisfy strict scrutiny.
The court ruled that the plaintiffs stated a valid claim and were thus
permitted to go forward with their claim. [FN214] In a later proceeding, the court ruled that the library's
restriction was content‑based, rather than content‑*356 neutral. [FN215] The court found that the library did not
satisfy the strict scrutiny standard of review. According to the court, the library's policy was not narrowly
tailored to achieve a compelling interest. [FN216] Thus, the court ruled that the use of blocking software violated
the First Amendment. This Note was authored prior to the aforementioned court
decisions.
[FN1].
See Reno v. ACLU, 521 U.S. 844, 850 (1997).
[FN2].
See id.
[FN3].
Communications Decency Act of 1996, Pub. L. No. 104‑104, 110 Stat. 133
(relevant portion amended 47 U.S.C. § 223).
[FN4].
47 U.S.C. § 223 (a)(1)(B)(ii) (Supp. II 1996).
[FN5].
47 U.S.C. § 223 (a)(1)(B) (Supp. II 1996).
[FN6].
See 47 U.S.C. § 223 (d)(B) (Supp. II 1996).
[FN7].
521 U.S. 844 (1997).
[FN8].
See id.
[FN9].
Warren, Mich., Council Resolution (Sept. 9, 1997) (on file with The Wayne Law
Review). The resolution states, in
part, the following:
WHEREAS, the Warren City Council, being
concerned with juveniles accessing pornographic and/or obscene materials via
public library computer terminals; and
WHEREAS, the Warren City Council,
recognizing that access to such material may be restricted by utilizing
blocking software.
NOW, THEREFORE, BE IT RESOLVED that the
Council of the City of Warren shall support the implementation of software at
all Warren libraries approved by the Library Cooperative of Macomb and the City
of Warren Library Commission ....
Id.
[FN10].
Id.
[FN11].
See Stanley v. Georgia, 394 U.S. 557 (1969).
[FN12].
See Reno, 521 U.S. at 844.
[FN13].
See id. at 875; see generally FCC v. Pacifica Foundation, 438 U.S. 726 (1978);
Ginsberg v. New York, 390 U.S. 629 (1968).
[FN14].
See infra Part II.F.
[FN15].
This Note will not explore the possible constitutional implications that
blocking software may have on children's First Amendment rights.
[FN16].
This Note will not explore in detail the First Amendment implications of the
Communications Decency Act. For a
detailed analysis of the Communications Decency Act, the following articles
will provide such insight: David Kusher, The Communications Decency Act and the
Indecent Indecency Spectacle, 19 HASTINGS COMM. & ENT. L.J. 87 (1996); Alan
Lewine, Making Cyberspace Safe for Children(?): A First Amendment Analysis of
the Communications Decency Act of 1996, 18 HAMLINE J. PUB. L. & POL'Y 78
(1996); Paul J. McGeady, The Communications Decency Act of 1996: Keeping On‑Line
Providers on the Hook, 11 ST. JOHN'S J. LEGAL COMMENT. 733 (1996).
[FN17].
See OFFICE FOR INTELLECTUAL FREEDOM, AMERICAN LIBRARY ASSOCIATION, INTELLECTUAL
FREEDOM MANUAL xiv (5th ed. 1996).
[FN18].
The handbook states the following:
Intellectual freedom can exist only where
two essential conditions are met: first, that all individuals have the right to
hold any belief on any subject and to convey their ideas in any form they deem
appropriate; and second, that society makes an equal commitment to the right of
unrestricted access to information and ideas regardless of the communication
medium used, the content of the work, and the viewpoints of both the author and
receiver of information. Freedom to
express oneself through a chosen mode of communication becomes virtually meaningless
if access to that information is not protected. Intellectual freedom implies a circle, and the circle is broken
if either freedom of expression or access to ideas is stifled.
Intellectual freedom is freedom of the
mind, and as such, it is both a personal liberty and a prerequisite for all
freedoms leading to action. Moreover, intellectual freedom, protected by the
guarantees of freedoms of speech and press in the First Amendment, forms the
bulwark of our constitutional republic.
Id.
at xiii.
[FN19].
See id.
[FN20].
See Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969), for
a discussion of schools standing in loco parentis.
[FN21].
See AMERICAN LIBRARY ASSOCIATION, LIBRARY BILL OF RIGHTS (1996)) (visited Jan. 29, 1998)
<http://www.ala.org/work/freedom/lbr.html>.
[FN22].
See id. The Library Bill of Rights sets
forth the following criteria for providing materials and information to the
public:
The American Library Association affirms
that all libraries are forums for information and ideas, and that the following
basic policies should guide their services.
I. Books and other library resources
should be provided for the interests, information, and enlightenment of all
people of the community the library serves.
Materials should not be excluded because of the origin, background, or
views of those contributing to their creation.
II. Libraries should provide materials and
information presenting all points of view on current and historical
issues. Materials should not be
proscribed or removed because of partisan or doctrinal disapproval.
III. Libraries should challenge censorship
in the fulfillment of their responsibility to provide information and
enlightenment.
IV. Libraries should cooperate with all
persons and groups concerned with resisting abridgement of free expression and
free access to ideas.
V. A person's right to use a library
should not be denied or abridged because of origin, age, background, or views.
VI. Libraries which make exhibit spaces
and meeting rooms available to the public they serve should make such
facilities available on an equitable basis, regardless of the beliefs or
affiliations of individuals or groups requesting their use.
Id.
[FN23].
See AMERICAN LIBRARY ASSOCIATION, ACCESS TO ELECTRONIC INFORMATION, SERVICES,
AND NETWORKS: AN INTERPRETATION OF THE LIBRARY BILL OF RIGHTS (1996)) (visited
Jan. 29, 1998) <http://www.ala.org/alaorg/oif/electacc.html> [hereinafter
INTERPRETATION]; AMERICAN LIBRARY ASSOCIATION, RESOLUTION ON THE USE OF
FILTERING SOFTWARE IN LIBRARIES AMERICAN (July 2, 1997) (visited Jan. 29, 1998)
<http://www.ala.org/alaorg/iif/filt_res.html>; LIBRARY ASSOCIATION &
INTELLECTUAL FREEDOM COMMITTEE, STATEMENT ON INTERNET FILTERING (July 1, 1997)
(visited Jan. 29, 1998) <http://www.ala.org/alaorg/oif/filt_stm.htmp>.
[FN24].
See INTERPRETATION, supra note 23. The
ALA requires that information resources and access to those resources are
available to all patrons, without limitations based on content or age of the
patron:
Providing connections to global
information, services, and networks is not the same as selecting and purchasing
material for a library collection.... Some information accessed electronically
may not meet a library's selection or collection development policy. It is, therefore, left to each user to
determine what is appropriate. Parents
and legal guardians who are concerned about their children's use of electronic
resources should provide guidance to their own children.
Libraries and librarians should not deny
or limit access to information available via electronic resources because of
its allegedly controversial content or because of the librarian's personal
beliefs....
Libraries ... must support access to
information on all subjects that serve the needs or interests of each user,
regardless of the user's age or content of the material.
Id.
[FN25].
See supra note 24.
[FN26].
See AMERICAN LIBRARY ASSOCIATION, RESOLUTION ON THE USE OF FILTERING SOFTWARE
IN LIBRARIES (July 2, 1997) (visited Jan. 29, 1998) <http://
www.ala.org/alaorg/oif/filt_res.html> [hereinafter RESOLUTION]; AMERICAN
LIBRARY ASSOCIATION, STATEMENT ON INTERNET FILTERING (July 1, 1997) (visited
Jan. 29, 1998) <http://www.ala.org/alaorg/oif/filt_stm.html>.
[FN27].
521 U.S. 844 (1997).
[FN28].
See RESOLUTION, supra note 26.
[FN29].
See id.
[FN30].
See id.
[FN31].
U.S. Const. amend. I.
[FN32].
See First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978); Kleindienst v. Mandel, 408 U.S. 753 (1972);
Stanley v. Georgia, 394 U.S. 557 (1969).
[FN33].
See New York v. Ferber, 458 U.S. 747 (1982) (concluding that the child
pornography is not protected by the First Amendment); Miller v. California, 413
U.S. 15 (1973) (holding that obscene material is not protected by the First
Amendment); Brandenburg v. Ohio, 395 U.S. 444 (1969) (ruling that advocacy of
illegal conduct, which is directed at producing imminent lawless action and is
likely to incite imminent lawless action, is not afforded constitutional
protection); Terminiello v. City of Chicago, 337 U.S. 1 (1949) (ruling that
fighting words are not protected speech).
[FN34].
See infra Part II.B.2., for a discussion of content‑based and content‑neutral
regulations and the appropriate levels of scrutiny.
[FN35].
See supra note 33. But see R.A.V. v.
City of St. Paul, 505 U.S. 377 (1992) (ruling that there is a limitation on
regulating unprotected speech).
[FN36].
See Brandenburg, 395 U.S. at 444.
[FN37].
See Ferber, 458 U.S. at 747.
[FN38].
See Terminiello, 337 U.S. at 1.
[FN39].
See Miller v. California, 413 U.S. 15 (1973).
[FN40].
413 U.S. 15 (1973).
[FN41].
354 U.S. 476 (1957).
[FN42].
383 U.S. 413 (1966).
[FN43].
See Miller, 413 U.S. at 20.
[FN44].
See id. at 24. The Court set forth the
following test:
(a) whether 'the average person, applying
contemporary community standards' would find that the work, taken as a whole,
appeals to the prurient interest; (b) whether the work depicts or describes, in
a patently offensive way, sexual conduct specifically defined by the applicable
state law; and (c) whether the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value.
Id.
(citations omitted).
[FN45].
Memoirs, 383 U.S. at 419.
[FN46].
See Miller, 413 U.S. at 24.
[FN47].
See id. at 24, 31‑32.
[FN48].
Id. at 27. The Court set forth the
following examples of material that states could lawfully ban as obscene:
"(a) Patently offensive representations or descriptions of ultimate sexual
acts, normal or perverted, actual or simulated. (b) Patently offensive representation or descriptions of
masturbation, excretory functions, and lewd exhibition of the genitals."
Id. at 25.
[FN49].
See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12‑2, at 789‑
91 (2d ed. 1988).
[FN50].
Id. at 790 (emphasis omitted).
[FN51].
Id. § 12‑3, at 794 (emphasis omitted).
[FN52].
See Widmar v. Vincent, 454 U.S. 263 (1981); see also Boos v. Barry, 485 U.S.
312 (1988). In Boos, the Supreme Court,
applying strict scrutiny, struck down a statute that prohibited the display of
signs within five hundred feet of a foreign embassy if the sign "tend[ed]
to bring a foreign government into public odium or public disrepute." Id. at 316.
Because the law was not content‑neutral, as only those signs that
brought a foreign embassy under "public odium" or "public
disrepute" were prohibited, it was subject to strict scrutiny. See id. at 321. The law did not pass the strict scrutiny test because more
narrowly drawn measures could have been advanced to protect the governmental
interest. See id. at 321‑29.
[FN53].
TRIBE, supra note 49, § 12‑2, at 790.
[FN54].
Id. § 12‑23, at 977‑78; see also id. § 12‑23, at 977‑86. For example, the government can ban the
burning of draft cards because the regulation is aimed at ensuring the
maintenance of draft records and the smooth operation of the draft; the
regulation is not aimed at curbing anti‑war speech. See United States v. O'Brien, 391 U.S. 367
(1968).
[FN55].
In Perry Education Ass'n v. Perry Local Educators' Ass'n, the Supreme Court set
forth a "forum" analysis in the following manner:
[1] Public forums are defined as areas
such as parks, sidewalks and streets which "have immemorially been held in
trust for the use of the public and, time out of mind, have been used for
purposes" of public discourse; [2] a limited or designated public forum is
an area that the government has "opened for use by the public as a place
for expressive activity;" [3] and nonpublic forum is government property
"not by tradition or designation a forum for public communication."
Perry
Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45‑46 (1983).
[FN56].
See TRIBE, supra 49, §§ 12‑23, 12‑24, at 977‑97.
[FN57].
Perry Educ. Ass'n, 460 U.S. at 45; see also Ward v. Rock Against Racism, 491
U.S. 781, 791 (1989); TRIBE, supra note 49, § 12‑24, at 992.
[FN58].
Perry Educ. Ass'n, 460 U.S. at 45.
[FN59].
Id.
[FN60].
See id.
[FN61].
See id.; see also Hague v. Committee for Indus. Org., 307 U.S. 496 (1939).
[FN62].
Perry Educ. Ass'n, 460 U.S. at 45; see also Kreimer v. Bureau of Police, 958
F.2d 1242, 1255 (3d Cir. 1992).
[FN63].
See Kreimer, 958 F.2d at 1259‑62 (applying the test set forth in Cornelius v. NAACP Legal Defense and
Educational Fund, Inc., 473 U.S. 788 (1990)).
[FN64].
See Widmar v. Vincent, 454 U.S. 263 (1981); Madison Joint Sch. Dist. v.
Wisconsin Employment Relations Comm., 429 U.S. 167 (1976); Southeastern
Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975).
[FN65].
See Kreimer, 958 F.2d at 1259.
[FN66].
See Perry Educ. Ass'n, 460 U.S. at 45‑46.
[FN67].
Id. at 45.
[FN68].
See id. at 46.
[FN69].
See id.
[FN70].
See id.
[FN71].
See id. at 47.
[FN72].
See International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672,
678‑79 (1992).
[FN73].
521 U.S. 844 (1997).
[FN74].
Communications Decency Act of 1996, Pub. L. No. 104‑104, 110 Stat. 133
(relevant portion amended 47 U.S.C. § 223).
[FN75].
Reno, 521 U.S. at 844. Sections
223(a)(1)(B)(ii) and (d) of the Communications Decency Act provide in pertinent
partthat:
(a) Whoever‑
(1) in interstate or foreign
communications‑
....
(B) by means of a telecommunications
device knowingly‑
(I) makes, creates, or solicits, and
(ii) initiates the transmission of, any
comment, request, suggestion, proposal, image, or other communication which is
obscene or indecent, knowing that the recipient of the communication is under
18 years of age, regardless of whether the maker of such communication placed
the call or initiated the communication;
....
(2) knowingly permit any
telecommunications facility under his control to be used for any activity
prohibited by paragraph (1) with the intent that it be used for such activity,
shall be fined under Title 18, or imprisoned not more than two years, or both.
....
(d) Whoever‑
(1) in interstate or foreign
communications knowingly‑
(a) uses an interactive computer service
to send to a specific person or persons under 18 years of age, or
(B) uses any interactive computer service
to display in a manner available to a person under 18 years of age, any
comment, request, suggestion, proposal, image, or other communication that, in
context, depicts or describes, in terms patently offensive as measured by
contemporary community standards, sexual or excretory activities or organs,
regardless of whether the user of such service placed the call or initiated the
communication; or
(2) knowingly permits any
telecommunications facility under such person's control to be used for an
activity prohibited by paragraph (1) with the intent that it be used for such
activity, shall be fined under Title 18, or imprisoned not more than two years,
or both.
47
U.S.C. §§ 223(a)(1)(B)(ii), (d) (Supp. II 1996).
[FN76].
47 U.S.C. § 223(a) (Supp. II 1996).
[FN77].
47 U.S.C. § 223(d).
[FN78].
See Reno, 521 U.S. at 870‑71.
[FN79].
See id. at 871.
[FN80].
See 47 U.S.C. § 223(a).
[FN81].
47 U.S.C. § 223(d), discussed in Reno, 521 U.S. at 871.
[FN82].
See Reno, 521 U.S. at 871.
[FN83].
Id.
[FN84].
See id.
[FN85].
See id.
[FN86].
Id.
[FN87].
Id. at 872.
[FN88].
See id.
[FN89].
See id.
[FN90].
See id. The Court feared that
"[t]he severity of criminal sanctions may well cause speakers to remain
silent rather than communicate even arguable unlawful words, ideas, and
images." Id.
[FN91].
See id. at 874.
[FN92].
Id.
[FN93].
Id.
[FN94].
See id. (quoting Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126
(1989)).
[FN95].
See id. at 875.
[FN96].
Id. (quoting Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727,
759 (1996)).
[FN97].
See id. (citing Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 129
(1989) (ruling that a ban on "dial‑a‑porn," which was
enacted to protect children, was unconstitutional because the ban was overly
broad)).
[FN98].
See Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989); City of Renton v. Playtime Theatres,
Inc., 475 U.S. 41 (1986); Ginsberg v. New York, 390 U.S. 629 (1968); Butler v.
Michigan, 352 U.S. 380 (1957); see also Reno v. ACLU, 521 U.S. 844 (1997).
[FN99].
352 U.S. 380 (1957).
[FN100].
See id. at 383.
[FN101].
Id.
[FN102].
See id.
[FN103].
See id. The Court stated that
"[w]e have before us legislation not reasonably restricted to the evil
with which it is said to deal. The
incidence of this enactment is to reduce the adult population of Michigan to
reading only what is fit for children."
Id.
[FN104].
390 U.S. 629 (1968).
[FN105].
See id. at 636.
[FN106].
See id. at 630.
[FN107].
See id. at 634‑35. The Court also
stated that the "well‑being of its children is of course a subject
within the State's constitutional power to regulate ...." Id. at 639.
The Court found that the state's actions had a rational relationship to
the state's desire toprevent children's exposure to harmful material. See id. at 641‑42.
[FN108].
The Court emphasized the fact that the New York statute did not seek to ban the
sale of such material to adults; rather, the statute banned sales only to
minors. See id. at 634‑35.
[FN109].
See id. at 635‑36.
[FN110].
438 U.S. 726 (1978).
[FN111].
See id. at 750.
[FN112].
See id. at 744‑48.
[FN113].
See id. at 732.
[FN114].
See Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 127‑28
(1989).
[FN115].
492 U.S. 115 (1989).
[FN116].
See id. at 130‑31.
[FN117].
See id. at 126. The medium of
communication was also pertinent to the Court's ruling. See id. at 127‑28. The Court ruled that the affirmative steps a
listener takes to receive a message via telephone distinguished this medium
from television and radio. Television
and radio do not require similar affirmative steps and thus may take a person
by surprise. See id. at 128.
[FN118].
See id. at 126.
[FN119].
See id. at 129.
[FN120].
428 U.S. 726 (1978).
[FN121].
See Sable, 492 U.S. at 127.
[FN122].
See id. at 127‑28.
[FN123].
See Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992).
[FN124].
Stanley v. Georgia, 394 U.S. 557, 564 (1969).
[FN125].
See Board of Educ. v. Pico, 457 U.S. 853 (1982).
[FN126].
457 U.S. 853 (1982).
[FN127].
See id. at 857.
[FN128].
See id.
[FN129].
See id. at 859.
[FN130].
See id. at 863‑64.
[FN131].
See id. at 864‑65.
[FN132].
Id. at 866.
[FN133].
Id. at 868.
[FN134].
See id.
[FN135].
Id. at 872.
[FN136].
Id. (quoting West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)).
[FN137].
See id. at 871.
[FN138].
See id. at 875.
[FN139].
Id. at 879 (Blackmun, J., concurring).
[FN140].
See id. at 879‑80 (Blackmun, J., concurring).
[FN141].
Id. at 887 (Burger, Powell, Rehnquist, & O'Connor, JJ., dissenting).
[FN142].
See id. Justice Burger stated that
schools "ought not be made a slavish courier of the material of third
parties." Id. at 889 (Burger,
Powell, Rehnquist, & O'Connor, JJ., dissenting).
[FN143].
Justice Burger explained that a school "must have broad discretion,"
in order to fulfill its obligation of "'inculcating fundamental values
necessary to the maintenance of a democratic political system."' Id.
[FN144].
See id. at 888 (Burger, Powell, Rehnquist, & O'Connor, JJ., dissenting).
[FN145].
See id.
[FN146].
See id. at 890‑91 (Burger, Powell, Rehnquist, & O'Connor, JJ.,
dissenting).
[FN147].
Id. at 886 (Burger, Powell, Rehnquist, & O'Connor, JJ., dissenting).
[FN148].
See id. at 909 (Rehnquist, Burger, & Powell, JJ., dissenting).
[FN149].
See id.
[FN150].
See id. at 915 (Rehnquist, Burger, & Powell, JJ., dissenting).
[FN151].
Id. (emphasis added).
[FN152].
See id. at 910 (Rehnquist, Burger, & Powell, JJ., dissenting).
[FN153].
See id. at 910‑12 (Rehnquist, Burger, & Powell, JJ., dissenting).
[FN154].
See id. at 912‑13 (Rehnquist, Burger, & Powell, JJ., dissenting).
[FN155].
See id. at 913 (Rehnquist, Burger, & Powell, JJ., dissenting). Justice Rehnquist explained that "the
most obvious reason that petitioners' removal of the books did not violate
respondents' right to receive information is the ready availability of the
books elsewhere." Id. (emphasis
added).
[FN156].
See TRIBE, supra note 49, §§ 12‑23, 12‑24, at 977‑97.
[FN157].
958 F.2d 1242 (3d Cir. 1992).
[FN158].
See id. at 1246. The library had
received several complaints concerning Kreimer's behavior, which included
staring at patrons, following patrons, and talking aloud in a disruptive
manner. See id. at 1247. Consequently,
the library decided to enact rules that prohibited certain behavior, and
empowered librarians to expel those patrons who violated the rules. See id.
The rules required that: patrons engage in "normal activities
associated with the use of a public library," such as studying, reading,
or using the library's materials; patrons not engage in disruptive behavior,
such as staring, following others, or talking to oneself; and patrons'
"hygiene shall conform to the standard of the community for public
places." Id. Kreimer was
subsequently expelled on several occasions for violating the rules.
[FN159].
See id.
[FN160].
See id. at 1251.
[FN161].
See id. at 1259.
[FN162].
See id. at 1259‑62.
[FN163].
See id. at 1259.
[FN164].
Id. at 1260.
[FN165].
See id.
[FN166].
See id.
[FN167].
See id. at 1261.
[FN168].
See id.
[FN169].
See id. at 1262.
[FN170].
See Jonathan Weinberg, Rating the Net, 19 HASTINGS COMM. & ENT. L.J. 453,
457 (1997).
[FN171].
See id. at 459.
[FN172].
Id.
[FN173].
See id. at 460.
[FN174].
See id. at 462‑63.
[FN175].
See id. at 463.
[FN176].
See id.
[FN177].
See id. at 464.
[FN178].
See id.
[FN179].
See supra Part II.B.1.
[FN180].
Reno v. ACLU, 521 U.S. 844, 853 (1997).
[FN181].
Id. at 849.
[FN182].
See id. at 866.
[FN183].
See id. at 888 (Burger, Powell, Rehnquist, & O'Connor, JJ., dissenting),
909 (Rehnquist, Burger, & Powell, JJ., dissenting).
[FN184].
Id. at 915 (Rehnquist, Burger, & Powell, JJ., dissenting).
[FN185].
Reno, 521 U.S. at 875 (quoting Denver Area Educ. Telecomms. Consortium, Inc. v.
FCC, 518 U.S. 727,759 (1996)).
[FN186].
TRIBE, supra note 49, § 12‑2, at 790.
Libraries have argued that they constitute non‑public fora, but
they have not been successful. See
Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992). A library may not constitute a non‑public
forum for the purpose of obtaining access to the Internet. Such an argument, however, does not appear
to be persuasive in most situations. In
determining whether a forum is a limited public forum, courts take into
consideration the government intent, the extent of use, and the nature of the
forum. See id. at 1259‑62. Most libraries would meet the
"government intent" prong, which requires that the government
intended to open the library to the public; it would be difficult to imagine a
scenario in which a public library was not opened to the public at large. As to the "extent of use" prong,
libraries are opened to the public in order to allow access to a variety of
materials in its collection. The third
prong of the test, which is the "nature of the forum," would also be
satisfied, as the library's provision of Internet service demonstrates that the
use of the Internet is not contrary to the expressive activities associated
with a library.
[FN187].
See supra note 9.
[FN188].
See Widmar v. Vincent, 454 U.S. 263 (1981).
[FN189].
See id.
[FN190].
See id.
[FN191].
See Reno v. ACLU, 521 U.S. 844, 875 (1997); Sable Communications of Cal., Inc.,
v. FCC, 492 U.S. 115, 119 (1989).
[FN192].
See infra Part III.C.
[FN193].
See infra Part III.C., for proposals for monitoring children's use of the
Internet that do not violate adults' constitutional rights.
[FN194].
521 U.S. 844 (1997).
[FN195].
See id. at 871‑72.
[FN196].
See id.
[FN197].
See id. at 872.
[FN198].
See id.
[FN199].
See id. at 874.
[FN200].
Id.
[FN201].
Id.
[FN202].
Id. at 875.
[FN203].
See supra Part II.F., for a discussion of the different types of available
blocking software.
[FN204].
See supra note 9.
[FN205].
See Miller v. California, 413 U.S. 15 (1973).
[FN206].
See Widmar v. Vincent, 454 U.S. 263 (1981).
[FN207].
See id.
[FN208].
See Reno v. ACLU, 521 U.S. 844, 875 (1997).
[FN209].
See id. at 874.
[FN210].
See Weinberg, supra note 170, at 459‑70, for a discussion on the accuracy
of blocking software.
[FN211].
See id. at 459.
[FN212].
2 F. Supp. 2d 783 (E.D. Va. 1998).
[FN213].
See id. at 794‑95.
[FN214].
See id. at 797.
[FN215].
See Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 24
F. Supp. 2d 552, 562‑64 (E.D. Va. 1998).
[FN216].
See id. at 566‑68.
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OF DOCUMENT