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.

 

END OF DOCUMENT