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Public libraries in the United States are under a great deal of pressure from community groups and others to "filter" or otherwise supervise Internet access for children. This demand has led a variety of libraries to take different approaches, leading to the American Library Association's recently developed strong policy against filtering mechanisms. In the absence of empirical evidence in a wide variety of libraries on information loss directly as a result of filters, librarians have worked towards compromises of both professional directives and community demands. Libraries and librarians recognize their allegiance to their communities and their profession by developing strategies that meet the concerns of both parents and colleagues, without compromising First Amendment guarantees of free speech.

Contents

Introduction
Statement of Facts in a Historical and American Context
Legal Issues and Analysis of Unfiltered Access to the World Wide Web
Legal Issues if the Library Uses Filters
The Role of the Library Director
Conclusion and Recommendations
Notes

I. Introduction

In the Fall of 1996 [1], the Cupertino and Gilroy public libraries added Netscape to their online catalogs. The libraries, as part of the Santa Clara County Library (the Library) centered in California's Silicon Valley, had offered Internet access to the public before. But this was different. Public Internet access in the past had meant text based, hard to maneuver browsers or single station sign-ups for graphic access. Now the World Wide Web using Netscape was a choice on catalogs throughout the buildings, glittering with stunning visuals at high-speed. Suddenly, library patrons throughout the county were a few mouse clicks away from Mars Exploration space shots, weather satellite loops, and reviews of family movies by the Movie Mom. Children were also a few mouse clicks away sites on white power, bomb making, playboy.com, hotpussy.com, and virtually any form of human expression.

In the Fall of 1997, the Library is embroiled in a battle between two groups of library supporters. One group - composed of Friends of the Library, library patrons, librarians, and library commissioners - support the Library's long held policy of open access to all library materials to patrons of all ages. The other group, based in Gilroy, is composed of Friends of the Library, library patrons, at least one library commissioner, and KIDS (Keep the Internet Decent and Safe). KIDS was specifically formed in response to the library's open access policy and advocates the protection of children from what KIDS labels as "cyberporn." The battle between the two groups has garnered considerable local media coverage [2] and some national media attention, including spots on CNN, NPR, and PBS Online [3]. The groups have grown increasingly polarized, and in September 1997, the Library asked the Santa Clara University Markkula Center for Applied Ethics to serve as a neutral third-party. A report on the groups found little common ground, and stated, "We believe opposing sides have such fixed and negative impressions of each other that the kind of openness required for a productive debate [outside the meetings of the Citizens Advisory Commission and the Joint Powers Authority] is precluded [4]."

Open any current newspaper or magazine in the United States and you will find endless debate on this conflict between free speech and a perceived need to protect children from certain features of the Internet. Although some Internet critics express concerns over commercialism, privacy, and hate speech, the rawest nerves are struck when it comes to children and pornography. The Supreme Court decided the seminal case on the issue, Reno v. ACLU [5], on June 26, 1997. The Reno decision scrutinized the portion of the Communications Decency Act of 1996 (CDA) that sought to criminalize "indecent" material that might be "display[ed] in a manner available" to minors [6]. Free speech advocates across the nation heaved a collective sigh of relief.

Yet a thornier issue was left in its wake for public libraries. The decision reaffirmed the Court's previous stance that protecting children's physical and psychological well-being is a compelling interest. The CDA's provision on obscenity was not challenged, and was left untouched. Its provision on indecency was struck. Unlike broadcast media, the Internet was found to be a "dynamic, multifaceted category of communication," entitled to the "highest protection from governmental intrusion [7]." Instead of muzzling the speaker, a technological fix was surely possible to protect the children. Software filters, blockers, and ratings services could protect children.

Where does that leave the Library? Is there a technological fix that can keep out certain kinds of speech? If a library doesn't screen out obscenity, is it liable under the CDA? Is it liable under the California Harmful Matters Act [8]? Cynthia Walker, a home school parent and founding member of KIDS, wrote an article for the Gilroy newspaper back in 1996, asking, "Why is it illegal for a private enterprise, such as the 7-11, to sell pornography to children, but legal for the library? [9]" She and others have persistently asked that question over the past year, in every possible forum, at meetings of library commissions, city councils, and the Library's ultimate governing authority, the Joint Powers Authority.

As a Cupertino Library Commissioner, a former public librarian, and a future library lawyer, I am a strong supporter of open access. Nevertheless, I believe that both sides of this issue present strong arguments, and a close examination of the issue is warranted.

In Part II, this paper will give the reader a glimpse behind the scenes at the Santa Clara County Library (SCCL), its history, policy and procedures. A brief history of public libraries in the U. S. will help place SCCL in context. The Library's policy of unrestricted access is well thought out and rooted in a strong tradition of "intellectual freedom," a fundamental tenet of state and national library associations.

In Part III, I will closely examine the legal issues raised by the Library's decision to provide unfiltered access to the Web. What are the legal differences between child pornography, obscenity, harmful matters, indecency and other types of offensive speech? Could the Library face criminal liability for displaying obscenity under the CDA? Could it face charges under California's Harmful Matters Statute, which criminalizes the knowing display of harmful matters to minors? What about challenges of sexual harassment?

In Part IV, I will turn to the legal issues the Library would face if it decided to restrict Internet access. This portion of the paper will offer an introduction to the technical aspects of filters and other blocking technologies. Then it will examine the scenario in which filters are ordered by the Library's governing authorities. The First Amendment flatly states, "Congress shall make no law ... abridging the freedom of speech..."[10] When a public library restricts the flow of Internet speech at the receiving end, does this constitute governmental regulation of speech? Is the public library a public forum, subject to the strictest First Amendment scrutiny? Would restricting Internet use at the library, in a rural area (where the library is the only place that children can use the Internet) represent a total medium ban? What are the rights of children to information in a public library? What are the rights of parents?

To date, the national debate has focuses on an either/or proposition: "To Filter or not to Filter [11]." All filters, however, are not the same, nor are they used in a uniform manner. In fact, a range of options is possible: blocking every terminal in the library (and requiring adults to identify themselves to bypass the filters); restricting all children unless they have parental permission; not restricting children unless they have parental objections on file; offering a restricted terminal for families who wish to use one, with no library enforcement of any kind. Other options include: no filters with librarians monitoring Internet use; no filters but children cannot use the Internet with parental permission; and a "tap-on-the shoulder" policy. The Library Channel model, in which librarians "select and catalog" Internet sites one-by-one, presents another model. Each option presents varying degrees of burdens on the speech of both children and adults.

In Part V, the paper will consider the role of the library director in this decision; first when she refuses to comply with a governing authority's decree to place filters in, and second when she voluntarily chooses to use filters, without compulsion by elected officials. Does her professional capacity as selector shifts the analysis? Are her daily decisions subject to judicial scrutiny, or is there something different about a decision to filter the Internet?

In Part VI, the paper will conclude with policy recommendations while noting considerations for differently situated libraries.

In Part VI, the paper will conclude with policy recommendations while noting considerations for differently situated libraries.

II. Statement of Facts in a Historical and American Context

Facts

The Cupertino and Gilroy libraries are both part of the Santa Clara County Library (SCCL). SCCL consists of nine community libraries and an administrative headquarters. The library system is funded principally by property assessments. In addition, the library receives some funds from state and federal government allocations, fines and fees, and gifts.

Materials selection is done both by headquarters and by branch staff. Professional librarians purchase library books and other materials based largely on reviews in journals such as Library Journal or Kirkus Reviews. Patron requests for materials are taken seriously, and librarians seek out materials that are not reviewed to meet that demand. Materials are "weeded" or withdrawn on a regular basis based on condition, usage, and currency. The occasional complaint by a patron about a book or video is taken seriously, but no materials have ever been taken off the shelf based on the ideas within, no matter how subjectively offensive. "If the library doesn't have something in it that offends you, I'm not doing my job," says Carol Jaech, Collection Development Coordinator [12]. Mein Kampf, The Anarchist's Cookbook, Heather has Two Mommies, and Playboy are some examples of controversial titles that the library owns.

Cupertino has 42,441 residents according to a 1994 population estimate [13]. Cupertino is the headquarters of Apple Computer, and has about 50 high tech firms. According to its city profile, "Many of the businesses, notably Apple and Tandem, have gotten behind the schools and work with the kids to make them computer sharp. The schools are loaded with Apples, in the classrooms, the libraries, the teacher conference rooms, and at times it seems that everything from city hall to the chamber of commerce is hooked into some kind of Apple network [14]." The profile notes that "[t]own is jammed with high-tech parents, and it is said that many Asian parents favor Cupertino because of its reputation for scholastic excellence. Asian-Pacific Island kids make up more than 40 percent of elementary school enrollment [15]." The general educational level of residents is high, with over 39 percent having completed sixteen or more years of school [16].

The Cupertino Library has three floors; the lower level is a children's room. The main and upper levels have collections for young adults and adults [17]. In the children's room, three of the computer catalogs use Netscape, and the rest of the catalogs offer text-based Web access. Young children generally head for the Children's Room; very young children are generally accompanied by their parents. By the time children are in junior high school, they tend to use the collections and tables on the adult floors. Nine of the computer catalogs on these two floors use Netscape Web access; the rest offer text-based Web access.

Gilroy has 32,264 residents according to a 1994 population estimate [18]. Known as the "Garlic Capital of the World," Gilroy is the fastest-growing city in the county, with a 46 percent increase in population in the last decade [19]. About twenty-five churches flourish in the area, some supporting their own schools [20]. Forty-five percent of the population is Hispanic [21]. The Gilroy library collection is on one floor, with one computer catalog in the Children's area with Netscape, and two with text-based access. On the other side of the floor is the adult area with additional computers with Netscape.

To date, the Cupertino Library has gotten highly enthusiastic reviews from patrons who love the high-speed Web access. The Gilroy Library community has also been enthusiastic about this new resource. Some say this is the only Internet access available to them, and even those who wish to limit it express delight with the Internet's possibilities [22].

Santa Clara County Library Policy on Children's Access

The Santa Clara County Library states in its mission statement:

The Santa Clara County Library promotes knowledge and cultural enrichment through free access to informational, educational, and recreational materials and services. The Library is an open forum for learning and ideas. To meet the need of the community, the Library provides materials on a wide variety of subjects and diverse points of view. The staff systematically develops, maintains, and circulates the collection, and helps use the Library's resources [23].

The Library has adopted the American Library Association's Library Bill of Rights (see below) in its own policies. The Library takes an especially strong stand on allowing full access for children. Children do not need a parent's signature to get a library card. Instead, parents are sent a letter (addressed "To the parents of CHILD CARDHOLDER,") letting them know that the child has a card, and that the library has controversial material.

The Santa Clara County Library's Dear Parent letter says,

You, as a parent or guardian, have the right and responsibility for yourself and your child. The Library does not take your place as a parent. An individual with a library card may check out any item in the collection. Library staff may not tell your child what he/she can or cannot borrow. We encourage you to set your own family rules and talk about them with your child . . . The Library protects you and your child's right to know and does not monitor or control the content of materials offered through the Internet. You are responsible for your child's use of the World Wide Web [24].

Unlike many libraries, SCCL does not inform parents about the titles a child has checked out, even when they are overdue [25]. The Library charges no fines on overdue children's materials (though it does charge fines on adult materials checked out on a child's card). It does bill for lost items, but holds the card holder, not her parent, responsible. If the child cannot pay the bill, she can work it out, perhaps by volunteering at the library [26].

In 1990, the Santa Clara County Library was challenged by a patron at the Milpitas branch who was upset by the library's open access policy. His specific objection was that he thought the library should restrict children from checking out R-rated videos. The library stood by its policy; reiterating that it does not act in loco parentis [27]. Parents were welcome to limit their children in any way, but the library would not do it for them. The complaint reached the County Board of Supervisors, which heard plentiful testimony from library access supporters who resisted restrictions and were especially concerned about heading down a slippery slope; R-rated video objections would would soon be followed by objections to offensive content in books, followed by even more restrictions. Indeed, proponents of the restrictions agreed. If successful, they had some more ideas of items that should be restricted. The Board voted 3-2 to keep open access in place [28].

In 1994, due to a state funding crisis, County Library governance shifted from the County Board of Supervisors to a Joint Powers Authority (JPA) [29]. The Santa Clara County Library Community Service Area is made up of the nine cities served by the County Library and the surrounding unincorporated area, and is now governed by the JPA. The JPA is composed of one elected official from each of the nine cities served by the library and two representatives from the Santa Clara County Board of Supervisors [30]. At the first meeting of the newly organized Joint Powers Library Board, The Library's open access policy, incorporating the American Library Association's Library Bill of Rights, was endorsed [31]. Cupertino and Gilroy are each represented on the Board by a member of their respective city councils, giving each one vote (out of eleven) on all policy decisions. If either city's council wished to change a policy and could not garner the votes from the other city and county representatives on the Board, it would need to either submit, or pull out of the system entirely, setting up an independent city library, with all its attendant costs of administration. The Joint Powers Authority is advised by a Citizens' Advisory Commission, which is composed of representatives from each of the community library's commissions.

A History of Public Libraries

The history of public libraries in America is filled with testimonials to the glorious access to a wide range of ideas and information. Public libraries today, like the Cupertino library, often have private origins predating local government involvement. Benjamin Franklin organized the first "subscription library," in 1731, in which members pooled their funds for books. Looking back on this enterprise, Franklin wrote in his autobiography, "These libraries have improved the general conversation of Americans, made the common tradesmen and farmers as intelligent as most gentlemen from other countries, and perhaps have contributed in some degree to the stand so generally made throughout the colonies in defense of their privileges [32]." Andrew Carnegie, renowned library philanthropist, credited the library with instilling in him a love of literature and with opening to him "the precious treasures of knowledge and imagination through which youth may ascend [33]." Carnegie, a self-made millionaire, built a private-public partnership. He gave funds for library buildings if local governments filled the buildings with staff and books. In the end, he donated some $56 million for the construction of more than 2500 library buildings.

Daniel Boorstin, Librarian of Congress Emeritus, captured the spirit of Carnegie and of American public libraries when he wrote, "[Carnegie's] vision and enthusiasm inspired the American public library movement. Luckily, it remained a `movement' and never became a 'system.' Few other movements in American history have been so continuously successful in enlisting local pride and energies. Now we have some 8,000 public libraries of every kind, circulating a billion items [34]."

Professional Library Associations

The American Library Association Statement on Intellectual Freedom

Today most American public libraries join academic, school, and other libraries in being part of the American Library Association (ALA), which was established in 1876. a ALA is a professional association that accredits library schools, publishes professional journals, and sets standards for the profession. Although the headquarters has a permanent staff, the ALA Council is an elected body of working librarians throughout the country. It maintains no actual authority over any library.

On July 2, 1997, the ALA Council adopted its Resolution on the Use of Filtering Software in Libraries. This document states that "The American Library Association affirms that the use of filtering software by libraries to block access to constitutionally protected speech violates the Library Bill of Rights [35].

ALA has always taken a strong anti-censorship position. Its Office for Intellectual Freedom (OIF) states in its current Handbook:

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 presented ...

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 [36].

In 1948 the American Library Association published the Library Bill of Rights, which was last revised in 1980. It says in part that, "A person's right to use a library should not be denied or abridged because or origin, age, background, or views [37]." With the introduction of videotapes and other new technology, the ALA addressed new issues in its "Access for Children and Young People to Videotapes and other Nonprint Formats: An Interpretation of the Library Bill of Rights," issued in 1989 (with a last revision in 1991) [38]. In this statement, the ALA says: "The interests of young people, like those of adults, are not limited by subject, theme, or level of sophistication. Librarians have a responsibility to ensure young people have access to materials and services that reflect diversity sufficient to meet their needs [39]." Further, it continues: "The 'right to use a library' includes free access to, and unrestricted use of, all the services, materials, and facilities the library has to offer. Every restriction on access to, and use of, library resources, based solely on the chronological age, educational level, or legal emancipation of users violates Article V [40]." The policy was expanded to cover cyberspace in 1996, explicitly reaffirming ALA's position that responsibility for a child's use of the Internet rests solely with his or her parents or legal guardians [41].

Equal access for minors is covered in Article V of the Library Bill of Rights, in which it reads in part "A person's right to use a library should not be denied or abridged because or origin, age, background, or views [42]."

California Library Association

The California Library Association (CLA) approved its current Intellectual Freedom Statement in 1991 [43]. The library profession, as a whole, defends intellectual freedom as "one of the safeguards of a democratic society [44]." The Association goes on to say,

"To defend this freedom, we must fight any attempts to limit access to library materials, meeting rooms, exhibits and programs. When censorship hits the library, in whatever form, from whatever source, we believe that the public's right of access to information and the right to choose for themselves what to read, what to see, even what to know is denied. Intellectual freedom continues to stand for freedom to think, to speak and to receive information. We hope that librarians everywhere will actively seek material which expresses different points of view, including the unpopular [45]."

III. Legal Issues and Analysis of Unfiltered Access to the World Wide Web

In choosing to allow all patrons full access to the Web, the Santa Clara County Library is safe from charges that it is violating the First Amendment. Nevertheless, it faces liability from the surviving obscenity portion of the Communications Decency Act. In addition, it faces potential claims that it is violating California's "Harmful Matters Law" and sexual harassment laws.

While some library patrons decry a broad range of "offensive" sites as unfit for young eyes, Internet sites fall into separate categories treated differently by the law. Child pornography, obscenity, and harmful matters, have each lost some First Amendment protection over the years. Indecent speech has generally been protected, although it is subject to some regulation in broadcasting (and when it is the source for some secondary effects. [46]) Other offensive, distasteful, disgusting, and violent speech has enjoyed broad protection by the First Amendment.

First Amendment Protection and Standard of Review

Many open-access advocates in libraries argue that any restrictions put the Library at the edge of a slippery slope towards censorship. Cyberporn today, Goosebumps tomorrow [47]. While there is political truth to this argument, the courts make clear distinctions between the two.

In the absence of federal, state, or local laws, speech is fully protected (in computer lingo, the "default" status of speech is that it is free.) However there are situations in which laws governing speech are upheld. Notably, the Court has carved out different standards of review, giving strict scrutiny (often "fatal in fact" [48]) to laws that restrict speech in some arenas, intermediate scrutiny (some laws survive and others are struck) in others, and rational review (most laws are upheld) in still others. The Court looks to a number of considerations such as the type of speech that is regulated, the type of restriction, and the setting of the restriction. For example, the government has greater latitude (often given rational review) to speech restrictions that it makes in a non-public forum, such as a curricular setting, than in a public forum, (often given strict scrutiny) such as a public street. The government has greater latitude, even in a public forum, if the restriction is content-neutral, [49] but not if the restriction presents a total medium ban. In recent years, the type of media (is it more like print or is it invasive like broadcast?) can shift the analysis. These different factors result in varying court-applied balancing tests which determine the value of free speech contrasted with other societal interests.

First Amendment Protection and Type of Speech on Library Internet Terminals

"Cyberporn" or "pornography" are not legal terms. According to the dictionary, "pornography" consists of "written, graphic, or other forms of communication intended to excite lascivious feelings [50]." Each individual could differ on what that means.

"Child pornography" has been deemed outside of First Amendment protection since the Court decided to uphold New York regulations prohibiting it in New York v. Ferber [51]. A strong factor in Ferber was the physical protection of the children used as subjects in child pornography. The Court "sustained legislation aimed at protecting the physical and well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights [52]." Child pornography is prohibited by federal law, 18 U.S.C. Sections 2252, 2252A et al. A new federal has broadly extended the definition of child pornography to include computer-simulated images that appear to be children, the Child Pornography Prevention Act of 1996 [53]. This law was immediately challenged at the federal district court level, in Free Speech Coalition v. Reno, where it was upheld against claims of vagueness, overbreadth, and impermissible content-specific regulations, prior restraint [54]. It is expected to be appealed [55].

"Obscenity," is a legal term, and is defined by the Miller standard. In Miller v. California [56] the Court states:

"a work may be subjected to state regulation if (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 [57]."

In Brockett v. Spokane Arcades, a Washington state "moral nuisance" law was struck down as overbroad (more infra) because it defined "prurience" to mean "that which incites lasciviousness or lust." This was held to unduly restrict protected material that appealed to only the 'healthy, wholesome, human reaction common to millions of well-adjusted persons in our society,' rather than to any shameful or morbid desire [58]." In Reno, the Court emphasized the critical element in the second prong - the applicability of state law. Further, it distinguished Miller from the CDA, "Moreover, the Miller definition is limited to "sexual conduct," whereas the CDA extended also to include "(1) excretory activities" as well as (2) "organs of both a sexual and excretory nature [59]."

In practice, prosecuting obscenity cases is very tough. The well-known "community standards" criteria is severely limited by the "taken as a whole, appeals to the prurient interest" and the "lacking serious value" prongs [60]. Jeffrey Douglas, a Santa Monica lawyer, has tracked nationwide obscenity prosecutions since 1987. He found that of the materials that have been judged obscene - by a judge or a jury - there are several common elements: explicit showing of excretion [61], bestiality, necrophilia, incest, or any type of non-consensual sex. He notes that the "taken as a whole" language is important, and "that is one of the reasons that all - or most - adult magazines have literary content [62]." How a lonely GIF, downloaded from an Internet-based server, will be judged is unknown - will it stand on its own, or will it be judged in the context of the other files linked to the same page?

In addition to the federal statute prohibiting the transportation of obscene matters for sale or distribution [63], California has its own obscenity statutes [64]. While it is far from clear what "community standards" mean in cyberspace, recall that the Communications Decency Act was not challenged on its obscenity provision [65]. This builds on the Court's holding in Sable Communications of California v. FCC which upheld a federal statute prohibiting the interstate transmission of obscene commercial telephone messages [66]. The Miller requirement of "contemporary community standards" was not a barrier, the Court said in Sable. [67]. The fact that "distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials does not render a federal statute unconstitutional because of the failure of application of uniform national standards of obscenity [68]."

"Harmful Matters" is a carved-out category of speech that is not protected when it is seen or heard by children. "Harmful Matters" are state statutes that derive their authority to circumscribe speech that is not obscene as to adults from Ginsberg v. New York [69]. In Ginsburg, the Supreme Court upheld the constitutionality of a New York statute that prohibited selling to minors under 17 years of age material that was considered obscene as to them even if not obscene as to adults.

"Indecent Speech" is a slippery term that generally evades regulation, but not always. In Reno, Justice Stevens evaluated prior jurisprudence that has given less protection to "indecent speech" in broadcast media. He compared two seminal cases on the issue, Pacifica and Sable. In Pacifica, the Court upheld an FCC regulation that allowed "indecent" speech only in the late evenings, when children were unlikely to be present [70]. In Sable Communications, a federal statute which banned "indecent dial-a-porn" was struck down [71]. The Court applied strict scrutiny and, upholding the constitutionality of the statute insofar as it applied to obscene messages, struck down the prohibition of indecent speech. Critically, as Justice Stevens points out in Reno, [the Court in Sable] agreed that "there is a compelling interest in protecting the physical and psychological well-being of minors which extended to shielding them from indecent messages that are not obscene by adult standards, but distinguished our 'emphatically narrow holding' in Pacifica because it did not involve a complete ban and because it involved a different medium of communication. We explained that 'the dial-it medium required the listener to take affirmative steps to receive the communication. Placing a telephone call,' we continued, 'is not the same as turning on a radio and being taken by surprise by an indecent message [citations omitted] [72]."

Other "offensive speech" including instructions on bomb making, and drug-taking generally enjoys full First Amendment protection. In Brandenberg v. Ohio, the Court overturned a Ku Klux Klan leader's conviction for saying "...[if] our Supreme Court continues to suppress the white, Caucasian race, it's possible there might have to be some vengeance taken [73]." As long as the speech merely advocates or teaches, and does not incite imminent lawless action, it is protected.

The key case examining the extent of this protection today is Rice v. Paladin Enterprises. In Rice, the families of three murder victims brought wrongful death and survival actions against the publisher of Hit Man: a Technical Manual for Independent Contractors. James Perry, the actual killer, meticulously followed the book's instructions in carrying out the murders [74].

The lower court wrote that " . . . however loathsome one characterizes the publication, Hit Man simply does it not fall within the parameters of any of the recognized exceptions to the general First Amendment principles of freedom of speech . . .[75]" On November 10, 1997, the Fourth Circuit Court of Appeals disagreed. It reversed and remanded the District Court's decision. It stated that the First Amendment is not an absolute defense for a narrow category of factually detailed instructional blocks devoted exclusively to teaching the techniques of violent criminal activities. The court distinguished the case from hypothetical books which might or might not be used for unlawful activities. It emphasized some "startling stipulations," that Paladin press made - specifically that it intended Hit Man to be put to immediate used by criminals, and that Hit Man "assisted" Perry in the perpetration of the triple murders [76].

Reno v. ACLU and the Communications Decency Act

After Congress passed the Communications Decency Act (CDA), as Title V of the Telecommunications Act of 1996 [77], the Act was immediately challenged by the American Civil Liberties Union and by the American Library Association [78]. On June 16, 1997, part of CDA was struck down by the U. S. Supreme Court in Reno v. ACLU. [79]. The "indecent transmission" and "patently offensive display" provisions were held to abridge "the freedom of speech" protected by the First Amendment [80].

Interested readers should find no difficulty in gaining information about the case. I will summarize the highlights here, with particular focus on the implications for library filters.

Reno v. ACLU
1. The Internet is Analogous to Print not Broadcast Media

The Court found that the Internet as a medium was like print rather than broadcast. This is significant because radio and television broadcasters, in contrast to print media, have from the beginning been subjected to substantial regulation of the content of their speech. In FCC v. Pacifica, the Court justified its lower scrutiny of First Amendment concerns by stating, "the broadcast media have established a uniquely pervasive presence in the lives of all Americans [81]."

In Reno, Justice Stevens accepted the lower court's findings that users seldom encounter [sexually explicit] content accidentally. "A document's title or a description of the document will usually appear before the document itself ... and in many cases the user will receive detailed information about a site's content before he or she need take the step to access the document. Almost all sexually explicit images are preceded by warning as to the content [82]." With respect to children, he wrote: "the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. A child requires some sophistication and some ability to read to retrieve material and thereby to use the Internet unattended [83]."

"Legal time" necessarily lags behind "technology time." Is the Reno finding on this still valid? The National Law Center for Children and Families argues that it is not. "Using a search engine or browser, it is possible for any user to 'quite frequently' encounter 'such content accidentally.' All anyone need do is do a search for 'toy' or 'pet' or 'woman' or 'girl' or almost any innocent subject. Some pornography sites display free 'teaser' pictures and sell thousands of hard-core images that defy the 1996 'findings' as to inadvertency. In addition, because of a child's lack of sexual sophistication, the pornographers' so-called 'warnings' fall on 'deaf ears' and actually act as an attractive nuisance that invites an immature youngster to venture further ... [84]"

KIDS members make a similar point. They note that the innocent searches on Bambi, bunny, and girls' names can result in an instant list of pornographic sites. Children may not carefully read the descriptions, and just "click, click, click" on the choices. And although commercial porn sites generally post warnings, the lion's share also give "free samples" to entice users. Further, KIDS members say that children may be inadvertently exposed to cyberporn by walking past another patron's terminal, or by depressing the wrong button a keyboard, revealing the last user's images [85].

David Early's article in the San Jose Mercury News is particularly compelling on this point. A "card-carrying liberal," Early spoke to KIDS leader Sandy Zappa, who told him, "I think it's sad that nowhere else in California can a child walk in and walk out with pornography except the public library [86]." He went to the library "to prove Zappa wrong." He typed in "toys" and found a site for his favorite store, Kay-Bee Toys. Nearby, he also found "Big Stiffy," "Busty Dusty," "Crazy-pages Hardsex Amsterdam," and "Crotchshots Unlimited." He typed in "Little Women" and to his misery, found seven hard-core pictures plus three moving images. He gives pages of examples, and writes that he felt "a lifetime of affection for the library to hiss out of me like a slow leak." Early "reluctantly concluded that until a better answer is available, minors should have only limited access to the Internet at the library. And all terminals in the children's areas of libraries should be filtered [87]."

Librarians testifying at the JPA and CAC meetings, on the other hand, consistently assert that children rarely, if ever, stumble across such images [88].

Reno v. ACLU
2. The CDA Still Criminalizes Obscenity

Could the Santa Clara County Library be liable under the CDA? Does the Library display obscenity? Or does the library merely provide a terminal that is hooked up to the outside world, like the telephone in the front lobby? "I think a kid could go in with a quarter and use a pay phone there and maybe talk to one of those sex lines, too," said Santa Clara County Assistant District Attorney Karyn Sinunu [89].

As written, the CDA provides a defense for libraries that don't post their own pages to the Web. The statute provides that no person shall be punished under the statute "solely for providing access to or from a facility, system, or network not under that person's control, including the transmission, downloading, intermediate storage, access software, or other related capabilities that are incidental to providing such access or connection that does not include the creation of the content of the communication [90]."

The CDA, and other child pornography and obscenity statutes, may have a chilling effect on any Web publishing that a library might participate in, such as publishing potentially "obscene" pictures on its Web site. Under the narrow definition of "obscenity" described supra, this is not likely to pose a problem. The newly broadened definition of "child pornography," supra, is more likely to have a chilling effect.

Reno v. ACLU
3. Harmful Matters and Indecency

In Reno, Justice Stevens notes four ways to distinguish the CDA from the Harmful Matters statute in Ginsberg: 1) Ginsberg did not prohibit parents from buying magazines for their children, 2) the New York statute applied only to commercial transactions, 3) the New York statute defined material that was harmful to minors with the requirement that it be "utterly without redeeming social importance for minors," [91] whereas the CDA failed to define "indecent" and omitted the requirement that "patently offensive" lack serious literary, artistic, political or scientific value, and 4) the New York statute defined a minor as a person under the age of 17, whereas the CDA included an additional year of those nearest majority [92].

Looking at the decision through a librarian's lens, it is particularly noteworthy that Justice Stevens is affirming parents' rights not to shield their children, and that the Court makes a fine distinction between minors who are a year apart in age. Both determinations underscore the important notion that not all children are alike, and a one-size-fits-all option for all children is not a sure-fire solution.

Reno v. ACLU
4. Filters as Less Restrictive Alternatives

In accepting the lower court's findings that it would be prohibitively expensive for noncommercial - as well as some commercial - Web sites to verify that their users are adults, the Reno decision contrasted the CDA with a less restrictive alternative. Under the strict scrutiny standard of review, the Court requires that the government entity responsible for the restriction on speech show a compelling government interest, and that it's using the least restrictive means to satisfy that interest [93]. While acknowledging that protecting children meets the "compelling interest" requirement, the Court affirmed the lower court, in large part due to the non-narrowly tailored CDA and its overly restrictive means. "Despite its limitations, currently available user-based software suggests that a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material which parents may believe is inappropriate for their children will soon be widely available [94]."

In his oral argument before the Supreme Court, Bruce Ennis, attorney for the American Library Association, advanced the argument that filters offered an effective alternative to meet the objectives of the CDA.

"Question: Well, Mr. Ennis, the Government says that these programs aren't effective. And that's pretty much what the District Court concluded too.

Mr. Ennis: Justice O'Connor, with respect, I don't think that's a fair characterization. If you look at page 42a of the joint appendix, the District Court summarized by saying that these were effective, and there was reason to believe they would soon be more widely available [95]."

David Burt, a vocal filter advocate and founder of Filtering Facts, has argued that "the ALA has done a complete reversal and claims that filters are not effective [96]." For parents, at home, filters can be reasonably effective. At the private, individual level, a customer may choose from an ever-growing number of filtering options. She can aim to find one that most closely matches her values, and then tweak it (sometimes extensively) to add and subtract keywords or sites. The parent is not a state actor and may even choose to block campaign sites ("core political speech") without infringing the First Amendment. This option is a far less restrictive alternative than the CDA, in which the government restricted speakers from protected, albeit indecent, speech.

Harmful Matters Suits in California

The KIDS group claim that the Santa Clara County Library is in violation of California Penal Code at Sec. 313.1 et seq. also known as the Harmful Matters Statute. The group escorted a Gilroy police officer into the Library and watched as he downloaded X-rated pictures. The officer filed a report, but prosecutors said no crime had been committed [97].

What would happen if the officer had seen a child downloading pictures? A librarian helping a child? The harmful matters statute makes it a criminal violation to offer for distribution any harmful matter to minors.

The California Harmful Matters Statute reads in part:

"Any person who knowingly displays, sells, or offers to sell in any coin-operated or slug-operated vending machine or mechanically or electronically controlled vending machine that is located in a public place, other than a public place from which minors are excluded, any harmful matter displaying to the public view photographs or pictorial representations of the commission of any of the following acts shall be punished as specified in Section 313.4: Sodomy, oral copulation, sexual intercourse, masturbation, bestiality, or a photograph of an exposed penis in an erect and turgid state [98]."

A number of states exempt public libraries from harmful-to-minors laws; others exempt them from obscenity standards [99]. In California, libraries and librarians, have been held to be exempt from that statute since Moore v. Younger [100], in which librarians challenged the harmful matters act on its face and as applied. The statute took effect in September 1969. In 1971, two Los Angeles Public Library (LAPL) staff members published an article reviewing "the ridiculous service problems and aura of self-censorship beginning to permeate their library and others in the state [101]." They asked the California Library Association to pursue a test case in the courts.

In May 1972, a class action suit was filed by Everett T. Moore, then associate librarian of UCLA and vice-president of the Freedom to Read Foundation (FTRF). FTRF was joined by the LAPL Board of Commissioners and LAPL Staff Association, the California Library Association, and the American Library Association. Evelle Younger, the California Attorney General, was the defendant. The suit asked for declaratory relief, specifically asking for an injunction against law enforcement agents in order to prevent prosecution of librarians for distributing "harmful matter." The librarians argued that their First Amendment rights were violated because the statute was vague and overbroad and that, under the threat of criminal penalty, the statute forced librarians into prior restraint, thus escaping judicial review as required by law [102].

In November 1973, a three judge federal panel agreed that a substantial constitutional question had been raised, but decided to withhold a decision until the matter was settled in the California courts. In January 1975, Los Angeles County Superior Court Judge Robert P. Schifferman held that librarians acting in fulfillment of their duties could not be prosecuted and that the statute's affirmative support of "distribution for educational purposes" created an absolute exemption for librarians.

Judge Schifferman's decision, though not drawing on constitutional grounds, was highly praised by the library profession and by the press, as in this comment from The Sacramento Bee:

"How could any librarian carry out his or her duties in an atmosphere of such ambiguity as to what is "harmful matter" when, as experience has shown, there are those who regard even a photographic book of famous Greek or Roman statuary harmful to minors? And the law, by using the catchall term "harmful matter," could be construed to go beyond obscenity. For some, it could include capriciously deemed dangerously radical, or objectionable to religious doctrinaires. ... As far as it went, however, Schifferman's decision is a victory for reason and common sense and for the freedom of libraries to serve their ultimate purpose - the widest dissemination of knowledge and information. The public, too, can take satisfaction that librarians are thus left free to exercise prudential judgment in their professional duties [103]."

Litigation continued at the state and federal level for almost five more years. The California Attorney General refused to accept the Superior Court ruling as binding upon the State of California in all its jurisdictions. In January 1976, the California Court of Appeals upheld the trial court ruling, but refused to deal with the constitutional issue since librarians had relief [104]. Justice Kaus wrote in Moore:

"1. The court declares that it was the intention of the Legislature to provide librarians with exemption from application of the Harmful Matter Statute when acting in the discharge of their duties.

2. The court declares alternatively that the availability and distribution of books at public and school libraries is necessarily always in furtherance of legitimate educational and scientific purposes ... And accordingly, librarians are not subject to prosecution under the Harmful Matter Statute for distributing library materials to minors in the course and scope of their duties as librarians [105]."

Nevertheless, in May 1977, Attorney General Younger reaffirmed his opinion "... that libraries, librarians, and library employees are not exempt from prosecution under the 'harmful matter statute' [106]."

Finally, in December 1979, under bench order of U. S. District Court Harry Pregerson, the California Attorney General issued a formal letter to California State Librarian Ethel Crockett indicating a grudging acceptance of the Superior Court ruling. The letter states: "While the Attorney General continues, as previously indicated, to disagree with the interpretation of the California "Harmful Matter Statute" California Penal Code Sections 313-313.5, rendered by the Superior Court in Moore v. Younger, L.A. Sup. Ct. C85493, the State of California is nevertheless bound by that decision in all respects [107]." The agreement by the Attorney General binds all district attorneys in the State of California under Cal. Gov. Code Sec. 12550.

Protection advocates can argue that although librarians and libraries are covered by the Moore decision, it is implicit that Moore did not contemplate the Web nor the content, including cyberporn. Thus, a determined attorney general could relitigate the issue, given the new facts.

During the last legislative session, California Assemblyman Pete Frusetta, who represents Gilroy, tried several times to pass a hostile amendment to unrelated library bills [108]. Could such an amendment pass constitutional scrutiny? It is possible that a carefully drafted bill, aimed solely at unprotected speech, could on its face stand up to such scrutiny. However, the problem is in the application. As discussed below, even the filters that aim to target only unprotected speech, fail miserably, sweeping away more speech that is constitutionally protected than not.

Sexual Harassment Suits

In addition to the risk of violating obscenity and (rewritten) Harmful Matters statutes, there's also the risk that library employees could file lawsuits under federal and state sexual harassment statutes. Offended patrons are not covered by sexual harassment laws; patrons are not a captive audience, and may leave or simply avert their eyes [109].

Employees, however, have a possible claim under Title VII and Cal. Civ. Code Sec. 51.9 [110]. Sexual harassment can be direct or indirect. According to the Equal Employment Opportunity Commission, "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment [111]."

It is the hostile working environment challenge that concerns us here. Could library employees be subjected to an intimidating, hostile or offensive work environment? The Library Board of Loudoun County, Virginia voted 5-4 in October 1997 to equip all its computers with filters. It based its decision, in part, on its policy against sexual harassment [112]. If challenged, how will such a policy be evaluated?

In the Supreme Court case, Harris v. Forklift Systems [113], Justice O'Connor, citing Meritor Savings Bank v. Vinson[114], describes the hostile work environment standard: "When the workplace is permeated with discriminatory intimidation, ridicule, and insult [that is] sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment [115]." Justice O'Connor continues, "This standard, which we reaffirm today, takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury [116]." The test is not mathematically precise, Justice O'Connor continues, "But we can say that whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct, its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance [117]."

The courts look at the totality of the circumstances, and each inquiry is highly fact specific. This leads many employers to err on the side of caution, and heavily restricting employee's speech in the workplace. The Robinson v. Jacksonville Shipyards [118] "pin-up" case has left employers particularly scared of any visual displays. In Robinson, it should be noted, however, that the employee was subject to 40 locations with pornographic pictures, and male coworkers made suggestive remarks in front of the pictures, such as, "Hey pussycat, come here and give me a whiff [119]."

The California Civil Code holds a defendant liable in a cause of action for sexual harassment when the plaintiff proves a business, service, or professional relationship, the plaintiff is unable to easily terminate the relationship without tangible hardship, and the defendant has made sexual advances, solicitations etc. that were unwelcome and persistent or severe, continuing after a request by the plaintiff to stop [120].

Sexual harassment claims have traditionally been filed against an employer due to the employers actions, or due to an employee's actions when the employer does not take immediate, corrective action. The situation here is quite different: the behavior is that of the public, not of employees who are under the library director's control. The question here becomes whether the conduct (by the library director in advocating an open access policy) reaches the level of unreasonably interfering with the individual's work or of creating an intimidating, hostile or offensive environment as measured from the perspective of a reasonable person of the victim's gender [121].

What if the alleged harassment is caused by a patron and not by the employer? This is the attenuated circumstance that is at issue in the public library. There is little precedent for such a cause of action, but a recent 9th Circuit case did recently consider a similar case in Kelbi Folkerson v. Circus Circus [122]. Kelbi Folkerson worked as a professional mime, performing a "Living Doll" act as a strolling entertainer at a casino restaurant. She dressed as a wind-up doll with a large key on her back. She had often fended off male customers, and on the day in question, a male customer said he would "prove if she's real," touched her shoulder, and appeared ready to hug her. Folkerson punched him in the mouth, was fired, and sued under Title VII, claiming that she was opposing an unlawful employment practice, that is sexual harassment imputed to Circus Circus.

The 9th Circuit acknowledged a legal claim, stating that "an employer may be held liable for sexual harassment on the part of a private individual such as a casino patron, where the employer neither ratifies nor acquiesces in the harassment by not taking immediate and/or corrective actions when it knew or should have known of the conduct." Nevertheless, it affirmed summary judgment for the employer. It found that the employer had taken reasonable steps to minimize the harassment. The steps taken were: Folkerson had been given a sign to wear that said, "Stop, Don't Touch," she had been give a phone number to call security, she had a large man in a clown outfit with her much of the time (although not that day), and the employer had installed a closed-circuit video camera to record any incidents. Folkerson did not know about the camera until she was shown the video of herself punching the customer in the mouth [123].

What factual situations could arise in the public library? The factual situations here could range from occasional naked-lady images left on a screen for limited periods of time, to habitual harassment by a patron, requesting help from his or her favorite librarian in accessing hard core pornography. Libraries might consider instituting automated screen time outs, making it less likely that employees would be captive audiences. Similarly, privacy screens could help prevent the passerby from seeing offensive images. Behavior policies, have been found to be enforceable in the 3rd Circuit under Kreimer v Bureau of Police [124]. They must be reasonable, clear, and enforced fairly.

At this writing, the Gilroy and Cupertino branches of the Santa Clara County Library have moved their furniture and installed privacy screens [125]. The intent is to offer the patron privacy when researching a topic, such as divorce laws or information related to personal health. The Santa Clara County Library's defense is strengthened in that employees are told when they are hired that they will be required to handle materials that may be offensive to them (for example, Playboy or Robert Maplethorpe's work). They should also be told that if anyone engages in abusive behavior the employee should report the problem and the library will take "immediate and appropriate corrective action [126]." Nevertheless, the claim of sexual harassment often revolves around factual questions, and the library should be aware that a claim might be filed.

IV Legal Issues if the Library Uses Filters

What if the Santa Clara County Library wished to avoid the potential challenges outlined above and chose to install filters? This won't curtail the library's exposure to lawsuits, and thus we must analyze the legal consequences of putting filters on library terminals. To do so, we need some technical understanding of how filters work and their impact on the flow of information. Then we should consider a range of options a library has in using filtering technology, if it makes that choice. To carefully analyze these options, we should examine the status of the public library as a government agency, including its role as proprietor, subsidizer, and public forum. We should also consider the emerging status of the Web as a forum within a forum, and of the constitutionality of filters that restrict protected, as well as unprotected, speech. Finally, we should evaluate the Web within the public library as subject to a total medium ban challenge with respect to the information poor.

A Technical Description of Filters and their Limitations

At first blush, the use of filters may seem like a flexible solution that could suit librarians and parents alike. If only we could screen out unprotected speech and let protected speech flow freely through. The problem is that no technological solution is possible. Such a technology would warrant a hypothetical Nobel Prize for artificial intelligence for its ability to make closely reasoned and complex legal judgments [127].

Software filters operate in a variety of ways. Keyword blocking provides a shotgun approach, aiming at words such as "sex" or "breast" and taking out Marsexploration and chicken breasts [128]. In fact, the English language bursts with words and phrases with double and triple meanings, supplying the country's comics with endless double entendre material for their nightly performances. Even a highly sophisticated algorithm that intelligently searches words in close proximity will miss images labeled simply, "Dolly Does Dave," while effectively blocking sites on the prevention of AIDS. The Playboy Forum tested SurfWatch and found search results riddled with inconsistencies [129].

Host blocking targets specific sites. Human monitors evaluate sites, somewhat similarly to the early history of motion picture review when censors watched reels of film, to make sure enamored couples always kept one foot on the floor. In the case of the popular filter, SurfWatch, developed in Santa Clara County, students at Stanford University are hired to stay glued to their computers, marking out sites deemed inappropriate according to a predetermined list of criteria. One popular campus joke refers to the filtering industry as the full employment act for Stanford students - while some screen out objectionable sites, the rest create and relocate them. Human monitors are part of Curtis Sliwa's Cyberangels patrol, in which 5000 volunteers in 60 countries surf the Net "to protect children from online predators, teach Internet crime prevention and awareness, help stop the online trade in child pornography, and support and advise victims of online stalking and harassment [130]."

Protocol blocking is an attempt to block Internet protocols such as email, Internet relay chat, FTP sites and newsgroups. Sophisticated users can generally circumvent these blocks. For example, numerous Web-based sites offer free email accounts to any user [131].

Many products are now an amalgamation of keyword and site blocking. Karen Schneider, author of A Practical Guide to Internet Filters, has taken a look at various filters and their applicable use in a public library. Schneider organized a study for the library community of how filters perform, called The Internet Filter Assessment Project (TIFAP) [132]. TIFAP has thus far found that in over 35% of the cases, filters blocked out some information that librarians needed to answer a question [133].

Most computer software filters on the market today aim at a broad spectrum of "offensive" speech. Parents' concerns for their children extend beyond legally defined obscenity, harmful matters, or even indecency, and may include, for example violence, bomb making, and racial hatred. The author of a cautionary article in Internet World, "Who Will Watch The Watchmen," [134] requested a filter company's "block" lists, and wrote, "We were surprised, to say the least, at what we found and called a couple of these companies to see whether they had completely lost their minds [135]." The typical attitude was summarized by a spokesperson for Cybersitter, who said, "we'd rather block more than less." Cybersitter's hit list includes "fascism," "Ku Klux Klan," and "Sinn Fein." Also excluded is "Adolph Hitler," and anything by Ernst Zundel, who denies that the Holocaust ever happened [136].

Nevertheless, some filters aim to fill the state agency "market niche," to block only what they call, "illegal speech." For example, X-Stop, by LOG-ON claims on its Web site: "Our 'librarian' blocked sites list is created according to the Miller standard as defined by the Supreme Court: blocked sites show sexual acts, bestiality, and child pornography. Legitimate art or education sites are not blocked by the library edition, nor are so-called 'soft porn' or 'R' rated sites like lingerie, sex toys, and nudity where no sexual act is shown [137]."

Though aiming to fill a real need, such a product can never live up to such a claim. "This is a completely absurd claim," says First Amendment attorney James S. Tyre of Biegelow, Moore & Tyre in Pasadena, California. "LOG-ON is setting itself up as judge, jury, and executioner when it makes unilateral decisions about what is obscene under the Miller standard - and there is ample reason to believe that the owners of the company have little knowledge about how to apply the standard. The X-Stop 'felony load' blocks a great number of sites which no reasonable person would consider obscene, including Web sites for print publications carried by most all public libraries [138]."

A third alternative is third-party rating systems. In 1996, the World Wide Web Consortium launched PICS ("Platform for Internet Content Selection"). PICS technology is a value-neutral infrastructure that allows for a new model of filter control. Using PICS, sites voluntarily tag their sites with header information that allows a third party to actually make the ratings. PICS technology is analogous to saying where on a package a label should appear, and in what font, without specifying what the label should say [139]. Essentially, it splits the functions of current filtering software companies into two: software and ratings systems. The PTA, churches, and Klanwatch can fairly easily use the technology to rate the Net. This helps overcome the "one size fits all" approach endemic to off-the-shelf filtering software. Groups can screen for any rated issue, such as violence, sex, or drug-use. The site proprietor answers a series of objective or subjective self-rating questions, and the third party sets limits to exclude certain answers.

PICS is gaining significant support from the White House and the online information industry. After the Reno decision, President Clinton called industry leaders, educators, and politicians to the White House to hammer out solutions to protecting children in cyberspace [140].

Netscape and Microsoft have agreed to include PICS support in their browsers, which account for 90 percent of the U.S. browser market. Search engines and directories Yahoo, Lycos, and Excite have pledged to request self-ratings by the WebSites they index [141].

Free speech advocates are split on PICS. On the one hand, self-ratings could help ward off "Son of CDA" or "CDA 2.0" attempts at further governmental regulation, while giving tools to individuals and parents who wish to use them. On the other hand, no rating system can be truly neutral, and may give censors tools to block information for others [142].

Law Professor Jonathan Weinberg analyzes a number of difficulties inherent in the rating system framework. The questions designed for self-raters can be based on subjective "standards" or objective "rules." The standards approach asks the Web site proprietor questions as SafeSurf does, such as whether nudity onsite is "artistic," "erotic," "pornographic," or "explicit and crude" pornographic [143]. The rules approach asks yes/no questions. The RSAC system attempts to be rule-based. In coding its violence levels, for example, to include "harmless conflict; some damage to objects"; "creatures injured or killed; damage to objects, fighting"; "humans injured or killed with small amount of blood"; "humans injured or killed; blood and gore"; and "wanton and gratuitous violence; torture; rape," its designers have striven to devise simple, hard- edged rules, with results turning mechanically on a limited number of facts [144].

Both approaches ask Web site proprietors to check off certain boxes, which may not fit [145]. Major news organizations, including CNN, the New York Times, and the Wall Street Journal, have gone on record stating that they would rather "go dark" than self-rate their news stories for sex and violence [146].

Sites that don't self-rate risk exclusion from search engines and from any PICS-based system. If all unrated sites are let in, there's little point in screening in the first place. Instead, rating systems have two options: either they resort to keyword blocking or they simply block all unrated sites.

A Range of Options in Using Filters

Just as there are a range of options in filtering technologies, there is also a range of options on how to use them in a library. The most restrictive scenario places a heavy hitting restrictive filter (which takes aim at self-defined "offensive" speech, such as some sites on drugs and violence) at the server (or system) level. All users must ask permission to get through to blocked sites, which will include many "innocent" sites such as Marsexploration. Further down the chain, a library can install filters and give everyone a password, except for children who don't have parental permission. The library is acting as a surrogate parent, until the real parent steps in. Further down, the library can impose filter-use (at the terminal level) only for children who have parental objections on file (an administrative puzzle), with the library enforcing the parent's wishes. Finally, a library can offer filters as one option at a terminal that a parent could choose to use with her child, with no library enforcement of any kind. In evaluating these options, we must look further at the role of the library as a state actor.

Libraries Are Local Government Agencies

Libraries are Not Parents

The American Library Association was invited to the White House Summit [147]. The ALA stressed the role of the parent, and showed the President its educational efforts, including the Librarian's Guide to Cyberspace [148].

Parents, and other private parties, are not restricted by the First Amendment. In a recent book examining children, television, and the first amendment, Newton Minow and Craig LaMay pleaded with broadcasters, programmers, advertisers, and viewers of television, to use responsibility in programming. Principally, violence shown on television, though constitutionally untouchable, has been documented as harmful to children in study after study. "The truth is, if we really care about our children, invocations of the First Amendment should mark the beginning, not the end, of our discussion about children and television [149]."

Minow and LaMay laud the V-chip proposal, but clearly note that "from a First Amendment standpoint it clearly makes a difference who does the rating, and it should not be the federal, state, or local government. But churches, PTAs, and other organizations could rate programs, giving parents a variety of private rating schemes to choose from [150]."

The tension between parents and libraries crystallizes in one question: Who is restricting the child? Unlike the parent, a church, PTA, or Klanwatch, the library is a state agency. It's actions are subject to the First Amendment whenever it restricts speech. If it merely offers a variety of tools to parents to rate and restrict speech, is it restricting speech? What if it offers access at an available unrestricted terminal?

Libraries as Governmental Proprietors or Subsidizers

As a government agency, does the public library acts in the capacity of a proprietor or subsidizer? If so, the agency may be considered to be the speaker, and as such, one that chooses not to speak, or in this case, receive certain information. Such an analysis could ratchet the issue down to rational review, in which the government need only show a legitimate state interest and that the regulation is rationally related to that interest. As a subsidizer, the Government can argue that it is not restricting speech, but simply not paying for public access [151].

In Rust v. Sullivan [152] the Court concluded that federal regulations banning the giving of advice regarding abortions at any facility subsidized by federal funds was a constitutional application of the government's power to grant subsidies (one of the actions of the Clinton Administration was to overturn the regulation with an Executive Order). Attorney Gordon B. Baldwin argued, in his legal critique of the Library Bill or Rights, " ... the right to read, or the right to distribute literature, does not embody a duty of the government to buy books or to help in the distribution of literature [153]." Government imposed filters at the public library do not preclude the public from accessing blocked sites which are available at any other equipped computer, at one's home, or at an Internet cafe down the road.

Selection

However, a distinction has been made by the Supreme Court between selecting and deselecting information.

In Board of Educ. v. Pico, Justice Brennan notes explicitly, "Respondents have not sought to compel their school board to add to the school library shelves any books that students desire to read. Rather, the only action challenged in this case is the removal from school libraries of books originally placed there by the school authorities, or without objection from them [154]."

Is a filter a way of "not selecting" items in the first place, or is it a method of "removing" items. First Amendment attorney Jonathan Wallace argues that filtering is a deselection process, constituting an unconstitutional removal of materials from the library. "... a library installing computers with full Internet access has, in effect, acquired the entire contents of the Internet. Blocking software which screens them based on the occurrence of banned words or phrases, is effectively removing these resources from the library. Just as the board of education did in Pico, someone has gone through a thought process which resulted in the removal of materials based on their disfavored content [155]." A librarian or governmental official (though probably delegating the of the task to a private company) essentially is deciding, or trying to control, what not to get.

A stronger case can be made when librarians actually select sites for use in the library. The Library Channel [156] is a product that creates a customized Internet collection, by which librarians select and catalog Internet sites, one by one. Although such a system probably evades judicial review, it severely limits the rich resources available on the Net.

Deselection

The agency is under no obligation to provide Internet access at all. However, at Santa Clara County Library, the service is already in existence. Thus, even if the governing agency is seen as merely as a proprietor or a subsidizer, "deselecting" is highly suspect. It is well established under existing doctrines that the government is forbidden under the First Amendment from administering public programs in a manner that discriminates against unpopular viewpoints. This principle was applied at the district court level to the Library of Congress in American Council of the Blind v. Boorstin [157]. The Librarian of Congress, acting in apparent acquiescence to the wishes of Congress, ceased producing Playboy in Braille. The Court held that even though the action took place in a nonpublic forum (the Braille publishing program) the deselection was by viewpoint unconstitutional: "Although individuals have no right to a government subsidy or benefit, once one is conferred, as it is here through the allocation of funds for the program, the government cannot deny it on a basis that impinges on freedom of speech [158]."

Public Libraries are Public Forums

Public libraries have opened themselves up as public forums, shifting governmental restrictions from a proprietor relationship to a regulator. A brief chronology clearly shows that public libraries have been established as limited, designated public forums.

Brown v. Louisiana: The Public Library is a Limited Public Forum

Over the years, we have witnessed an expansion and a refinement of the public forum doctrine. The traditional American public forums are: streets, parks, and sidewalks. Public forums, places where the Government is acting more like its role as a public sovereign than in a private capacity, ratchets up the scrutiny the Court will give to Government restrictions on First Amendment protections. Essentially, a public forum designation requires a strict scrutiny of State action in restricting expression: compelling state interests, measures narrowly drawn and shown to be the least restrictive alternative [159].

Is the public library a public forum? The first and only time the issue reached the U. S. Supreme Court was in 1966 in Brown v. Louisiana [160]. In that case, "[f]ive young Negro males" went into the adult reading room of the Audubon Regional Library. The Librarian briefly helped the men and then asked them to leave (on account of their race). They remained and were arrested by the sheriff. Justice Fortas wrote in his opinion that there was no disturbance of others, and that a State must regulate in a reasonable and nondiscriminatory manner, equally applicable to all [161]. In the absence of disruptive conduct, the court held that the men had a First Amendment right of access to the public library [162].

Pico: The Student's Right to Receive Ideas in a School Library

The next relevant Supreme Court decision involves children, school libraries, and the right to read, or receive ideas. Unfortunately, despite lengthy discussion, Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico [163], written by Justice Brennan, was decided by a plurality and has been universally decried as enigmatic. It not only produced no majority opinion, but seven separate opinions, three from justices in the majority and four from the dissent. Further, it is concerned exclusively with a school library, which serves a very different purpose than a public library. Schools are places that serve in loco parentis, and attempt to inculcate societal values. Instructively, Pico dicta notes that the challenged books in the school library were not entirely banned to the children, inasmuch as they were available at the local public library, which had in fact put the books on display [164].

Brennan's plurality claimed that a student's "right to receive ideas" was infringed when the school board voted to remove certain books that were considered "anti-American, anti-Christian, anti-Semitic, and just plain filthy [165]." In Pico, the Court evaluated the "unofficial direction" by a school board that nine books be removed from the school library shelves for reconsideration [166]. Brennan wrote that the "right to receive" follows "ineluctably from the sender's First Amendment right to speak ... (and) is a necessary predicate to the recipient's meaningful exercise of his own rights of speech, press, and political freedom [167]."

Brennan's statements were questioned by his brethren. Chief Justice Burger dissented, stating that there is no "right" to have the government provide continuing access to certain books, or to be made a "slavish courier of the materials of third parties [168]." Nevertheless, the "right to receive information" predates Pico. In Martin v. City of Struthers, Justice Black wrote: "The authors of the First Amendment knew that novel and unconventional ideas might disturb the complacent, but they chose to encourage a freedom which they believed essential if vigorous enlightenment was ever to triumph over slothful ignorance. This freedom embraces the right to distribute literature, and necessarily protects the right to receive it. The privilege may not be withdrawn even if it creates the minor nuisance for a community of cleaning litter from its streets [169].

Further support for the right to receive information comes in the Court's seminal case concerning commercial speech, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, which declared, "Freedom of speech presupposes a willing speaker. But where a speaker exists as in the case here, the protection afforded is to the communication, to its source and to its recipients both [170]."

Later support in the lower courts can be found in Kreimer, which strongly supports the "right to receive information" in a public library.

Kreimer: Libraries Are Limited Purpose Public Forums

On March 23, 1992, the 3rd Circuit explicitly held in Kreimer v. Bureau of Police for the Town of Morristown [171], that libraries are 'limited-purpose public forums;' that is, libraries enjoy public forum status so far as the "right to receive information," though not so far as expression e.g. making speeches in the reading room. Richard Kreimer, a homeless man, challenged the constitutionality of the Patron Behavior Policy of the Joint Free Public Library of Morristown and Morris Township in New Jersey. The court adopted the reasoning presented in separate amicus curiae briefs filed by the Freedom to Read Foundation and the New Jersey Library Association [172]. The court held that public libraries are designated limited public forums for access to information. The court also upheld the right of libraries to make reasonable rules to facilitate access for all library patrons [173]. The 3rd Circuit wrote that:

Our review of the Supreme Court's decisions confirms that the First Amendment does not merely prohibit the government from enacting laws that censor information, but additionally encompasses the positive right of public access to information and ideas. Pico signifies that, consistent with other First Amendment principles, the right to receive information is not unfettered and may give way to significant countervailing interests. At the threshold, however, this right, first recognized in Martin and refined in later First Amendment jurisprudence, includes the right to some level of access to a public library, the quintessential locus of the receipt of information [citations omitted] [174].

Interestingly enough, the Kreimer case strongly supports the notion that library patrons have the right to receive all that the public library has to offer (in our case, unfiltered Web access), while at the same time acknowledging that library patrons may be required by the library to maintain a certain level of acceptable behavior in order to enter the door. Thus, what constitutes unreasonable standards of library behavior, e.g. staring, continually leaving up pornographic sites for staff to log out, are still a matter of library discretion, subject to challenges of being overly broad or vague.

The Web as a Public Forum within the Library Public Forum

The Web as a Public Forum

When the Santa Clara County Library opened up the terminals in the library to provide access to the Web, it created a limited public forum within the library. The three types of forums outlined in Perry Educational Association v. Perry Local Education Association, supra, are: a public forum, a limited public forum, and a non-public forum. If the site in question falls into either of the first two categories, in order for the State to enforce a content-based restriction in such a forum, "it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end [175]."

The Internet has been recognized as perhaps one of the most public and democratic forums for public discussion now available - anyone, anywhere in the world, with access to a computer, a modem, and an online connection can literally reach millions of people. The Internet is the public forum of the 21st Century. As President Clinton said, in his second inaugural speech, "As the Internet becomes our new town square, a computer in every home - a teacher of all subjects, a connection to all cultures - this will no longer be a dream, but a necessity [176]."

Judge Dalzell wrote in ACLU v. Reno:

The Internet is a far more speech-enhancing medium than print, the village green, or the malls. Because it would necessarily affect the Internet itself, the CDA would necessarily reduce the speech available for adults on the medium. This is a constitutionally intolerable result [177]."

The Web as a Public Forum within another Forum

The conception of the Internet as a public forum within a forum is beginning to be tested in the lower courts. In the first two months of 1997, two courts, both examining Internet use at public universities, have come to two very different conclusions.

Landers v. Trustees of the California State University System

In Landers v. Trustees of the California State University System [178], the Los Angeles Superior Court said the Internet is a designated, limited public forum, granting a preliminary injunction enjoining California State University, Northridge, (CSUN) from prohibiting the use of the University's server in a political manner. Chris Landers, a CSUN student, had spent over 100 hours developing a Web site in support of Democratic candidate John Birke. The site was critical of incumbent Republican Senator Cathie Wright, featuring animation that changed her face into a grinning skull [179]. The University pulled Landers' site without notice, and Landers sued. The Court's tentative ruling noted, " ... it is clear that the CSUN server is a designated public forum. The Internet and World Wide Web communication are indisputably "nontraditional" places for public discourse. The policy of the University to make its computer server and systems available to its students and employees created a public forum for their use [Citations omitted.] [180]." The Court thus applied strict scrutiny, and found that the University guidelines were not narrowly tailored to achieve a compelling state interest, noting that the exclusion of political expression from the CSUN server was content-based discrimination. The Court noted that CSUN opened a forum for students for academic and personal use.

In the Santa Clara County Library situation, the Library has opened the Web for all manners of use. Inasmuch as the public library is open to all members of the public, the case for Web access - defined as a public forum - is even stronger. While it is true that obscenity is granted lesser protection than the political speech at issue in Landers, the problem, as outlined above, is that far more speech is limited than obscene speech. The filters on the market today aim at a host of other "objectionable" speech from "indecency" to "hate speech" and other topics and subjects. Even a filter narrowly tailored to keep out "obscene" speech runs into the problem of vagueness - today's definition of obscenity is rooted in community standards. A definite chilling effect would take place if the whole nation was reduced to the strictest community standard. Even this restriction would be ineffective since the medium is worldwide.

One could argue that the Landers arguments could be limited to expressive activity. Library patrons, on the other hand are by and large recipients of information (with some growing exceptions, as technologically savvy patrons find ways to use the Web to delve into chat rooms and enter their own information onto Web screens). However, as argued above, the right to free expression necessarily encompasses the right to receive information, and thus the Landers arguments are valid here.

Loving v. Boren

In Loving v. Boren [181], the federal district court in the Western District of Oklahoma ruled that University of Oklahoma (OU) President David Boren did not violate Professor Bill Loving's First Amendment rights by controlling access to Internet sites. Professor Loving had asked for injunctive and declaratory relief when the University blocked sex-related news groups in March 1996. President Boren said he believed dissemination of the news groups could result in criminal penalties, due to violation of state obscenity laws. The Court notes that "It is clear that there was no systematic examination of the groups before they were blocked, and that some groups that did not contain obscene material were blocked [182]." This is not surprising, given the inherent problems in effectively screening out content.

Judge Wayne E. Alley noted that the plaintiff represented himself, and rested his case without giving any evidence at trial that he was harmed or would suffer harm [183]. Certainly, Professor Loving could have done better with an attorney.

Judge Alley went on to write as dicta, "The OU computer and Internet services do not constitute a public forum. There was no evidence at trial that the facilities have ever been open to the general public or used for public communication [184]." While this does not address the university setting as a designated or limited public forum, as in Landers and as in the situation at the Santa Clara County Library, it is nonetheless distinguishable from the Santa Clara County situation, which is most assuredly open to the general public.

The Loving defendant set forth an interesting argument for mootness. The University showed evidence at trial that the blocked news groups could still be reached by the OU computers through more circuitous routes. The Court notes the inconsistencies of this argument with President Boren's testimony that OU's concerns center on liability for "distributing" obscene material [185]. This anomaly goes to underscore the inconsistencies and impractical goals to regulate decency on the Internet.

First Amendment Rights of Children and Public Library Filters

Inside the Schoolhouse Gate

Most Court cases concerning children's First Amendment rights have taken place in the school setting [186]. Thus, despite the significant differences between schools and public libraries, the cases serve as a starting point in evaluating children's rights. During the Vietnam War, the Supreme Court upheld the right of pupils to wear black armbands as a sign of protest, in Tinker v Des Moines Independent Community School Dist [187], noting memorably that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate [188]." Nevertheless, this right was balanced against the school's need for good order and discipline which was not threatened, with only "a silent, passive expression of opinion, unaccompanied by any disorder or disturbance [189]."

In 1982, Justice Brennan wrote the Pico plurality, infra, which balances rationales for book removal from the school library. Justice Brennan speculated that it would be permissible in Pico had the school board removed the books due to obscenity or vulgarity [190]. In fact, school library policies to exclude books on the grounds of obscenity or vulgarity have passed judicial review [191]. Alternatively, the book Voodoo and Hoodoo, detailing descriptions of recipes for voodoo spells was found to be protected, even in the school library context, by a District Court in Louisiana [192]. The Court noted that the board removed the whole book, and did not simply restrict circulation to "the younger students whose safety the Board purported to be concerned with [193]."

In 1986, the Supreme Court heard Bethel School Dist. No. 403 v. Fraser [194]. A 17-year-old high school senior, Matthew Fraser, made a nominating speech on behalf of a classmate, using humorous sexual innuendoes. Some students hooted and hollered and simulated sexual actions during the speech. Fraser was suspended for three days. Fraser sued, claiming that the school violated the First Amendment; the Court disagreed. A strong theme in the opinion was the school's educational mission, and that the speech occurred at a school-run assembly.

In 1988, in Hazelwood School District v. Kuhlmeier [195], the Supreme Court upheld the authority of school principals to censor school-sponsored student newspapers so long as the censorship served valid educational purposes. Two articles were in dispute; one discussed teenage pregnancy at the high school, and the other discussed divorce and criticized the writer's father. Without notice, the principal deleted the stories. Justice White found that the newspaper was a part of the curriculum, and thereby lacking in full First Amendment protections. He emphasized that the school had not by policy or by practice created a limited public forum, but that the paper was in fact a nonpublic forum, which merely required a reasonable, viewpoint neutral reason for restriction.

Outside the Schoolhouse Gate

Outside the Public Library

The school cases are relevant as a starting point because children's rights under the First Amendment are at their most circumscribed in that setting. Outside the schoolhouse gate, we find Erzoznik v. Jacksonville [196]. The Supreme Court struck an ordinance that prohibited drive-in movie theaters from showing films containing nudity visible from a public street. To avoid prosecution, theater owners were required either to "restrict their movie offerings or [to] construct adequate protective fencing which may be extremely expensive or even physically impracticable [197]." The Court held that: "Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them [198]."

From Erzoznik, which followed Ginsburg by six years, we find that mere nudity is protected, even as to children, at least in regards to a drive-in movie theater visible from the road. In 1978, the Court heard FCC v. Pacifica [199]. In Pacifica, the Court agreed that "there is a compelling interest in protecting the physical and psychological well-being of minors" which extended to shielding them from the broadcast of indecent messages that were not obscene by adult standards [200]. Reno reiterates the court's "emphatically narrow holding" in Pacifica because it did not involve a complete ban (programming was channeled to evening hours when children were less likely to be present) and because it involved an invasive medium of communication, by which one can be "taken by surprise by an indecent message [201]."

Does Reno suggest that children have an independent right to material that is not considered harmful? Reno finds the CDA's prohibition on material that is "indecent" or "patently offensive" vague and overly broad. "[The CDA's] open-ended prohibitions embrace all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors. The general, undefined terms 'indecent' and 'patently offensive' cover large amounts of nonpornographic material with serious educational or other value ... Under the CDA, a parent allowing her 17-year-old - to use the family computer to obtain information on the Internet that she, in her parental judgment, deems appropriate could face a lengthy prison term [202]." In discussing the vagueness of the CDA, Reno points out that even laws that are not so vague as to be unconstitutional tend to make speakers cautious [203]. UCLA Law Professor Eugene Volokh extrapolates that "[a] seller might well be reluctant to sell to a minor any material that's at all sexually themed, even if a jury would ultimately conclude that this material wasn't "harmful to minors." Minors might therefore find it hard to get material that they're in theory entitled to read ... [204]."

Inside the Public Library

What are a child's rights to information in a public library? What are the child's rights to indecent, offensive, tasteless, and "innocent" information that is inadvertently blocked by filters? As for indecency, Pacifica and Reno show us that when children are likely to inadvertently stumble across it, (and if adults are not overly burdened in their pursuit of it), the information may be regulated, not banned. In the library, this raises factual questions. How do children in the library use the Internet? Do children in the library inadvertently stumble across indecent sites? How are indecent sites defined by the library (or its chosen filter)? As for other offensive, tasteless and "innocent" information, in the absence of legal authority to the contrary, such information is protected, even as to children.

The more intricate question, is what are the child's rights to such information in the face of parental opposition? Parents can, and do, come into the library with their children and tell them (often loudly) that they may not check out a certain book for any number of reasons. The library does not get involved, leaving the resolution of the dispute between parent and child [205].

If a parent asks the library to enforce such a restriction, a dramatically different issue is raised. The mission of the public library is to promote knowledge and cultural enrichment through free access to informational, educational, and recreational materials and services. It is not to inculcate societal values, and, in Santa Clara County, it explicitly does not act in loco parentis. The Library Bill of Rights grants equal status to all patrons, regardless of age. The Library Bill of Rights, as a professional code, expresses the role of the public library in society as one of open access for patrons of all ages.

At least one state, Colorado, guarantees "equal access to information without regard to age ..." by state law [206]. This guarantee may be in jeopardy, if parental rights groups succeed in passing new legislation [207].

Children's Rights in California are Stronger than the Federal Minimum

When the Supreme Court evaluates the constitutionality of governmental restrictions on speech, it is only setting the outer limits on what may be restricted by laws, regulations and government policies. States may be more liberal, and offer greater freedoms. California's courts have interpreted its state constitution to guarantee broader free speech guarantees than under the federal First Amendment [208]. Moreover, even in the school setting, the California Education Code explicitly gives students the right to exercise fee speech in large measure, including expression supported financially by the school or by use of school facilities [209]. The Code further states that schools shall not sanction students to disciplinary action based on "conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution [210]."

As far as Harmful Matters, it is noteworthy that California is one of the states that explicitly exempts parents and legal guardians from the prohibitions of the law [211].

Total Ban Analysis

The Reno decision resurrects the Schneider "total medium ban" analysis, which uses closer than intermediate scrutiny when an entire medium of communication is restricted, even when the restriction is content neutral. In Schneider v. State (Town of Irvington) [212], town ordinances forbidding distribution of leaflets were struck down. Although the bans were content neutral, they were considered a total medium ban on a particular type of expression, and thus subject to stricter scrutiny. Justice Stevens, in Reno, analyzes the CDA's effect of censorship on the different modalities on the Internet - such as chat groups, newsgroups, and mail exploders. The Government contended that this loss was constitutional because speakers still had the "reasonable opportunity" to speak on the Web [213]. The Court disagreed, comparing it to the argument that "a statute could ban leaflets on certain subjects as long as individuals are free to publish books. In invalidating a number of laws that banned leafleting on the street regardless of their content - we explained that one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place [214]."

In the event that a local government chooses not to grapple with the constitutional complexities of filters, they may instead choose to simply take Internet access out of the Library entirely. This presents the Boorstin problem, supra, once a government provides a benefit, it cannot deny it on an unconstitutional basis. A wholesale ban on the Internet lands the case into content neutral territory, it is no longer the message, but the medium that is restricted.

The open access advocate may then need to argue that such a removal constitutes a total medium ban, ratcheting court scrutiny away from legitimate time, place and manner restrictions commonly upheld with content neutral material, and up to a level just below strict scrutiny. The library may need to show that it is the sole provider of Internet access to a large, identifiable segment of society. The Gilroy library could make a stronger case here than the Cupertino library, but both could point to the information-poor in their communities.

The analysis changes if a library had never hooked up to the Web. Given the vast resources of the Web, it is fast becoming a vital library resource, and will render the library that isn't wired obsolete.

Overbreadth, Narrow Tailoring, and Least Restrictive Alternatives

Overbreadth and "least restrictive alternatives" are conceptually distinct, and both may apply to the library that restricts materials. A library that implements restrictions should be careful to analyze its policy on both levels.

The overbreadth doctrine reaches the letter of the law, ordinance, regulation, or library policy. "[A] governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms [215]." In 1985, the Supreme Court used the overbreadth doctrine in Brockett v. Spokane Arcades to strike a Washington moral nuisance statute. The statute declared any place "where lewd films are publicly exhibited as a regular course of business" and any place of business "in which lewd publications constitute a principal part of the stock in trade" to be a "moral nuisance [216]." In its definition of "lewd matter," the statute used the word "prurient" to mean "that which incites lasciviousness or lust [217]." The law was struck as overly broad, in that it restricted protected materials (or those that merely appealed to normal sexual appetites) as well as materials that met the Miller definition of obscenity (which requires an appeal to a shameful, morbid lust) [218].

A city ordinance or library policy that restricts constitutionally protected speech, on its face, would be subject to an overbreadth challenge. For example, a policy restricting Internet speech, regarding drugs, violence, or racial supremacy, could readily be challenged.

"Least Restrictive Alternative" analysis, as discussed supra, is part of the legal standard used when a court gives strict scrutiny to restrictions on speech. The policy might pass constitutional muster on its face, (e.g. "The library uses filters to ensure that no child pornography is displayed on library computers) but the court, as in Reno, will look to see if the restriction chosen is the least restrictive alternative and that the restrictions are narrowly tailored to meet a compelling government interest. Does the library aim only at excluding unprotected speech, but in actuality excludes a good deal of protected speech? For example, if the aim is to protect children from child pornography, obscenity, and even Harmful Matters, are filters on every terminal the least restrictive alternative? Do adults (including 18 year olds) need to identify themselves to gain access? Reno reiterates the Court's long held dislike for suppressing speech that is addressed to adults, "It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. [citations omitted] But that interest does not justify an unnecessarily broad suppression of speech addressed to adults ... '[R]egardless of the strength of the government's interest' in protecting children, '[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox' [219]."

As a less restrictive alternative, a library could consult an attorney and devise a warning sign near the computer terminals, stating that illegal activity is prohibited in the library.

V. The Role of the Library Director

The Director Who Refuses to Comply with a Government Order to Use Filters

There is much precedent on the rights of public employees who refuse to commit unconstitutional acts. The threshold question here is whether or not the demand by local government to use filters rises to the level of unconstitutionality.

Speaking out against censorship challenges is a matter of public concern. Thus, public employees should be protected from dismissal. For example, in Montgomery v. Boshears [220], the court said that even a non-tenured public employee cannot be denied renewal on account of the exercise of the employee's rights. The plaintiff had criticized verbally and in writing the appointment of her supervisor and the implementation of the library computer system. Assuming these to be statements on matters of public concern, the court considered the claim [221].

The Supreme Court outlined the test for protection of government employee's speech in Pickering v. Board of Educ. [222]. To receive protection, the speech must be on a matter of public concern, and the employee's interest in expressing herself on this matter must not be outweighed by any injury that the speech could cause to the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees [223].

"Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record [224]."

Courts have carved out a public policy exception to the standard rule that at-will employees can be dismissed for any reason. What is not so clear is what falls into the public policy exception. Would a court defer to the ALA Library Bill of Rights? In Pierce v. Ortho Pharmaceutical Corp. [225], Dr. Pierce opposed a project developing loperamide, a drug containing saccharin, due to the medical controversy over the safety of saccharin. The court suggested it would defer to a "recognized code of ethics of the employee's profession," but distinguished Dr. Pierce's interpretation of the Code as merely personal morals.

The ALA Office for Intellectual Freedom administers the LeRoy C. Merritt Humanitarian Fund, which was established in recognition of the need for financial support at the moment an individual is in jeopardy or is fired in the cause of intellectual freedom [226].

The Library Director Who Voluntarily Uses Filters

In evaluating the constitutional issues that a governing body of a library faces when considering restrictions in the library, the foundation rests on state action. Restrictions on speech by the Joint Powers Authority (or city, county government, or an elected library board) sends up a red flag, inviting investigation into First Amendment jurisprudence. A more complicated question arises when a library chooses voluntarily to put on a filter. Is the library director is a state actor? When I pose the question to law professors and attorneys, the quick response is a resounding yes [227]. She is hired, paid, and serves at the pleasure of the State.

Nevertheless, as a former librarian, I would delve further into the question. The library director and her subordinates, make content-based purchasing and withdrawal decisions on a daily basis. A director simply cannot do her job, getting library books and materials to the public, if she cannot rely on her trained professional judgment in making those decisions. There is extensive debate and self-critique in the library literature about the librarian's role as selector/censor as she does her work of continually selecting and withdrawing materials from the library's collection. Professional standards are set (circulation, currency, authority of author, professional reviews etc.), but much remains eternally subjective.

Rodney Smolla examines the principle of "professionalism" in library selection procedures [228]. He derides the "relatively primitive state of development [of First Amendment principles] with regard to the freedom of libraries funded with public money [229]." He argues that the courts should develop First Amendment doctrines to specifically protect the intellectual neutrality of libraries, and proposes a realistic view of the role of librarians (and museum curators) as decision-makers concerning the contents of their collections. "At first blush then, the notion that the First Amendment might actually require leaving the choices of what museum paintings to display or library books to keep on shelves seems farfetched. These are, after all, public repositories of culture. Public librarians and museum curators do not own their collections, they are owned by the people, who presumably have the ultimate authority to make decision concerning the contents of the collections through their duly elected representatives [230]." Smolla continues, "On closer examination, however, the professionalism principle is not farfetched at all ... There is always reason to be highly suspicious of interference by elective bodies in the details of content-based regulation of speech concerning governmental programs [231]."

On a practical level, imagine the Joint Powers Board selecting which novels to select and deselect for the mystery collection! The State must defer to the professionals. It pays for their expertise. Pico is good authority for the deference to the library professional by the State.

I would suggest that the same general parameters for First Amendment analysis be applied to the library professional, yet that a somewhat greater deference be given to her decisions. While wholesale restrictions, such as heavy-handed filters at the server level, should receive the same strict scrutiny as if the elected authority imposed them, the panoply of lesser options be more or less appropriate, given factors that the library director is in the best position to understand. Most importantly, in returning to the broadcast/print distinction, the library director is in the best position to know how children use the Internet in her library. Do they use library-created menus to browse the Web, or do they use search engines? Which search engines do they use, and what do the engines search by default - the Web, the Usenet, or both? Is the placement of furniture and privacy screens such that children and staff are unlikely to walk past offensive sites? Not all libraries will start with the same facts, nor should they reach identical solutions.

VI. Conclusion and Recommendations

Based on the legal framework and arguments above, I offer a brief analysis of the varied options the library could consider. No solution will satisfy all parties. Given that, I believe the steps taken should match the dangers as closely as possible. My personal thoughts, as they have developed over the course of this study, mirror the values that I see developed by the courts: strict scrutiny insofar as children need to make deliberate "mouse clicks" to seek out obscene, harmful, and indecent sites, but a lower scrutiny, permitting zoning, not banning of the Library's Web if children are frequently inadvertently exposed to obscene, harmful, and even indecent sites.

As discussed, there is a discrepancy of views on the frequency of inadvertent exposure. I urge librarians to take a close look, recognizing that children will not necessarily report such events. I recommend that librarians seriously study the patterns of Internet use in their children's areas, as closely as possible, limited by respecting user's privacy. I also recommend an academic study be undertaken on the issue, to provide some data.

In the interim, in the absence of data on how children use the Internet in the public library, I think it wise to give the benefit of the doubt to those on the scene when they say that is not a problem. However, in order to best accommodate both parents who wish to maintain open access, and parents who wish to have tools to restrict their children, I believe the library should offer at least one filtered, blocked, or rating-equipped terminal in the children's area. I call this a pro-choice position. Since resources are always tight, the ideal situation allows computers to serve as both open and restricted terminals. The library patron chooses to search either a fettered or unfettered Net. For an example of the concept, see the Magellan search engine, currently available at www.mckinley.com I would advise close contact with Silicon Valley firms in developing options.

The pro-choice option gives parents who bring their small children into the children's room a tool that they can use to "more safely" navigate. Full warnings about the limitations of any filtering system and the dangers of the Net must still be in place, to dispel any false sense of security. The pro-choice position allows older children to continue to enjoy their freedom of information in the library. They may obey or disobey parental limits, just as they do with other library materials. The library must stay away from any enforcement mechanisms (parental permissions, barcode readers etc.) or face strict scrutiny as they restrict information in a public forum, in place of parents.

My analysis on options that libraries consider:

1) Filters on all terminals used by children under 18 (or under 13)

Analysis: The library, as a government agency, is the restricting agency, not the parent. Probable First Amendment violation, unless filters closely match unprotected speech (not technically feasible). ALA Bill of Rights violation.

2) Filters on all terminals used by children under 18, unless the child has parental permission to use the full Internet

Analysis: The library, as a government agency, is restricting use. Many, if not most, parents will not take affirmative action to lift the restrictions, even if they believe in open access. Parents are busy, and the burden of "opting in" will leave many children without access, by government design. Possible First Amendment violation (the closer the library is to imposing restrictions, the more probable the violation). ALA Bill of Rights violation.

3) Filters on terminals in the children's room, but no library-imposed restrictions. Parents have the option of requesting that their child's card is coded for filtered terminals only. Thus library enforcement is required, though only at the time of issuing cards. Librarians are not expected to monitor use.

Analysis: The library, as a government agency, is not directly responsible for restricting use. Many, if not most, parents will not take affirmative action to impose restrictions, because they are busy, and it is a burden to "opt out" of the default. Although older children will easily circumnavigate the restriction - by using a friend's card, for example - parents who wish to protect their younger children from accidentally calling up cyberporn will have a tool, albeit imperfect. Librarians, however, will be put in the untenable position of assisting different children differently (e.g., a child can't find information on the Republic of Georgia on the filtered terminal, or on the library's shelves). Does the librarian risk searching the unfiltered Internet, to circumvent these limitations? What if a site that a parent doesn't approve of shows up?

Probably not a First Amendment violation, as the parents are responsible for the restrictions. Informing the parents on what is being restricted would be advisable. ALA Bill of Rights violation (restricting material based on age).

4) Filters on one or more terminals in the children's room, but no library-imposed restrictions, nor enforcement. Parents may direct their children to use only these terminals, but the issue is purely between parent and child, with no library intervention.

Analysis: The library, as a government agency, is not restricting use. Children who wish to use an unfiltered terminal are not denied access by the library. No First Amendment violation. Arguably, no ALA Bill of Rights violation, since patrons are not restricted use of library materials on the basis of age. However, ALA has issued a strong resolution against the use of filtering software in libraries.

5) Pro-choice position: filters on terminals that can be turned on or off by the patron. The default setting is off. At least one search engine, Magellan, which is available as a free site on the Internet, gives the user a chance to search only "green light sites." Use this (or another with the same principle) as the default search engine, at least in the children's room.

Analysis: The library, as a government agency, is not restricting use. Users who choose to search only "green light sites," are depending on Magellan's definitions. No First Amendment violation. Arguably, no ALA Bill of Rights violation, since patrons are not restricted use of library materials on the basis of age. However, ALA has issued a strong resolution against the use of filtering software in libraries

6) Open Access Without Filters

Analysis: Children run the risk of inadvertently being exposed to obscenity, harmful matters, indecent, and other offensive material. For example, searches on the words "toys," "Barbie," and other terms or names can result in the display of inappropriate Web-based graphics. The most sexually explicit title that the Library owns is probably Playboy, and it does not shelve centerfolds in the middle of picture books.

As noted, the frequency of children "stumbling," which could downgrade First Amendment protection to a broadcast standard is in dispute. No First Amendment violation. No ALA Bill of Rights violation.

I believe that different solutions are appropriate for different communities. In Cupertino, I personally recommend the pro-choice position. This option does not impose a burden on any user, but does give parents tools to use with small children. Ideally, a range of filtering choices will be available at the user level, including some which use PICS. In a community in which a library finds children inadvertently stumbling upon obscenity, harmful matters, and even indecent speech, I recommend library-chosen filters installed on terminals that young children are most likely to use. Even though all filters are overinclusive in their screening, as long as children are not restricted from open terminals that are reasonably available elsewhere, I do not believe that free speech freedoms are compromised.

Other options include turning computer screens away from foot traffic and installing privacy screens. This has been done at Santa Clara County library, for the most part. Other libraries, grappling with the same issue, have come to the opposite determination that such placement encourages Cyberporn viewing. Still others are experimenting with a "tap on the shoulder" policy. Should a library offer its users privacy, or should their searches be displayed to passersby? I believe that these options raise significant privacy issues which merit further study. Nevertheless, my general recommendation is to follow library tradition in safeguarding patrons' privacy as much as possible. Further, privacy measures can reduce the chances of inadvertent exposure to both children and adults of offensive screens.

Finally, I recommend proactive approaches, such as working with the public, training parents on Internet use, working with the media, and continuing to study emerging technology. Libraries should identify their needs, and communicate them to a software and hardware developers, many of which are based in the Santa Clara Valley.

Santa Clara County Library Decision: The Never-ending Story

On October 15, 1997, in a North County-South County split, the Citizens Advisory Commission voted 7-3 to reaffirm the Library's open access policy, and to urge the Joint Powers Authority to do the same. On October 23, 1997 the Joint Powers Authority, met to finally vote on the issue. The Library and its supporters urged the JPA to reaffirm its policy; KIDS and their supporters urged it to mandate filters or other safeguards for children, allowing full access only with parental permission. During the four hours of testimony and deliberation, the JPA examined the consequences of taking no action. After discussion indicating that taking no action would keep the open access policy in place, while signaling that the matter was not closed, the JPA followed that route. It supported library recommendations concerning education, CD-ROM alternatives and printed materials concerning safety issues. It also accepted a recommendation from the CAC to establish a technology subcommittee of the JPA. The JPA subcommittee will continue to study the issue, new technology, and report back quarterly to the JPA. Further, the JPA directed Counsel to seek an opinion from the court regarding the issue, seeking declaratory relief. The JPA should be commended for their understanding of the complexity of the issues and their willingness to continue the conversation with all sides, in lieu of quick, problematic solutions.

About the Author

Mary received her undergraduate degree from Brown University and then graduated from the University of Michigan's library school. She worked as a reference and young adult librarian at the Ann Arbor (Michigan) Public Library. She then moved to California and worked at the Riverside City and County Public Library as Bilingual Librarian and Branch Head at the Sun City and Moreno Valley Branch Libraries.

At Santa Clara County Library, she was in charge of the Bookmobile and Outreach Services, which traveled from Stanford University to the Ochoa migrant labor camp in Gilroy. Mary has worked as an online database consultant at Dialog Information Services in Palo Alto, and as an adult program librarian at the Cupertino Library.

She graduated in June from Stanford Law School. As a law student, Mary was appointed to the Cupertino Library Commission and was later elected Chair. She is the Intellectual Freedom Advisor to the California Association of Library Trustees and Commissioners.

She currently works for a public interest law firm in Oakland, Disability Rights Advocates, where she does legal research and writing on disability issues.

She has a strong interest in advocacy for libraries and plans to pursue a career in library law. Next Fall she will teach a class in Library Law at San Jose State University School of Library and Information Science.

E-mail:minow@alumni.stanford.org

Notes

1. This version of the paper was completed on November 10, 1997. I would like to thank Professor Barbara Babcock, Jennifer Drobac, Professor Gerald Gunther, Josephine Minow, Professor Martha Minow, Mira Judith Minow Singer, Nell Minow, Benjamin Apatoff, Rachel Apatoff, Professor Newton Minow, Professor Margaret Jane Radin, Doug Rees, Richard Reuben, James Robenolt, Professor Kathleen Sullivan, and Professor Deborah Weiss for their invaluable help with this paper.

2. Any library's nightmare article, appeared recently as the cover story of the San Jose Mercury News Sunday magazine. Complete with a sleazy barker guiding young children into a Web of CyberSuzy, Digital Doris and lusty.com, the cover screams "Are Your Kids Safe on the Net? David E. Early on the Controversy over Libraries and Porn on the Web" See David Early, "The Information Age: Has it Run Amok when Children can call up Pornography at the Public Library," San Jose Mercury News, October 12, 1997. Available for $1 at http://newslibrary.infi.net/sj/ Other local articles available online include: "Porn vs. Censorship on the Internet," Los Altos Town Crier, August 6, 1997 available at http://www.losaltosonline.com/latc/arch/9732/Comment/leditor/leditor.htmland "How Much Access? Local Libraries, Schools Scrutinized as Online Porn Tempts Young Net Users," Los Altos Town Crier, August 6, 1997 available at http://www.losaltosonline.com/latc/arch/9732/CoverSto/cover/cover.html

3. "Easy Access? Should on-line porn be available at local libraries?" Spencer Michels Online NewsHour, August 7, 1997. Transcript available at http://www.pbs.org/newshour/bb/cyberspace/July-dec97/library_8-7.html

4. Thomas E. Shanks and Barry Stenger, Access, Internet, and Public Libraries: A Report to the Santa Clara County Libraries (October 9, 1997) available at http://www.scu.edu/Ethics/practicing/focusareas/technology/libraryaccess/

The reports recommendations included:

"Apart from the public meetings which are already part of the CAC and JPA's planned procedures, we do not recommend convening any public deliberations with the goal of seeking common ground and a compromise solution. We believe opposing sides have such fixed and negative impressions of each other that the kind of openness required for a productive debate is precluded."

Id. At 51.

5. Reno v. ACLU, ___ U.S. ____ (1997), available at http://www.findlaw.com/casecode/supreme.html

6. Reno v. ACLU, ___ U.S. ____ (1997), available at http://www.findlaw.com/casecode/supreme.html

7. Reno v. ACLU, ___ U.S. ____ (1997), available at http://www.findlaw.com/casecode/supreme.html

8. The patron, a lawyer, had difficulty locating objectionable sites when he sat down at the computer. He asked for assistance from a couple of teenage boys in the library in finding some cyberporn. To date, he has evidently decided not to sue. Informal interview with Catherine Fouts, Morgan Hill Community Library Supervisor, November, 1996.

9. Cynthia Walker, "Net Access and Porn at the Library," Gilroy Dispatch (1996).

10. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances," United State Constitution, Amendment I (1791).

11. "To Filter or not to Filter" has been the title of a recent article in the American Library Association's magazine, American Libraries (June/July, 1997); the title of a program at the American Library Association conference on June 28 1997 (ALA Cognotes wrap-up issue - July, 1997); and, the title of a Friday Forum at the University of California at Los Angeles Graduate School of Education and Information Studies that the author spoke at on an October 24, 1997. In addition, the Santa Clara County Library hired the Markkula Center for Applied Ethics at Santa Clara University as a neutral mediator between advocates of the two positions. On September 22, 1997 "pro-filter" advocates were invited to participate in a panel. On September 24, 1997, only "open-access" advocates were invited to participate. The author attended both meetings and was a panelist in the second.

12. Informal interview with Carol Jaech, Collection Development Coordinator, Santa Clara County Library, November, 1996.

13. Population estimate by Census and Demographic Research Unit of the California Dept. of Finance, Jan. 1, 1994 as shown in Don McCormack and Allen Kanda, Santa Clara County `95, (1995) at 12.

14. McCormack, Santa Clara County at 130.

15. McCormack, Santa Clara County at 138.

16. Susan Fuller, Carol Jaech, and Janice Yee, Santa Clara County Library Profile and Projections 1990-1995 at 56.

17. Id. at 60.

18. Population estimate by Census and Demographic Research Unit of the California Dept. of Finance, Jan. 1, 1994 as shown in Don McCormack and Allen Kanda, Santa Clara County `95 (1995) at 12.

19. McCormack, Santa Clara County at 140.

20. Fuller, Santa Clara County Library at 65.

21. Id. at 65.

22. The author has attended numerous community forums on this issue, and this is her appraisal. She attended the Gilroy Library Commission, on April 9, 1997, and May 8, 1997, when it addressed the issue, with considerable community input. She participated in the Cupertino Library Commission's discussions, and successfully initiated a motion to endorse the Library's open access policy. She served as an alternate in the July 2, 1997 Citizen's Advisory Commission and she attended the Joint Powers Authority meeting in July 1997 where she spoke as a citizen in favor of open access. She attended the Markulla forum on restricted access, September 24, 1997 and participated in its forum on open access, September 26, 1997. In addition, she has had numerous conversations with players on all sides of the issue since the Fall of 1996.

23. Fuller, Santa Clara County Library at 6.

24. Susan Fuller, County Librarian, Dear Parent or Guardian, revised August 1996.

25. Legal county counsel for SCCL stated that "minors have a constitutional right to unrestricted access to the library."; Kathy Kretchmer, Deputy County Counsel memo to Susan Fuller, September 28, 1990. Contra Costa County Library legal counsel offers the opinion that because the California Government Code, Sec 6267 (part of the Public Records Act), does not specify age, it therefore applies to all ages of card holders. "...Absent a person's written authorization, or an order of the Superior Court, no one, including a minor's parents, has a right to know what a person checks out of a public library." Furthermore, "There is no legal authority establishing an age at which the right of confidentiality begins, and there is no legal authority granting the library the right to establish such an age." Id. at 6-7.

26. Informal interview with Janice Yee, Deputy County Librarian, Santa Clara County Library, November, 1996.

27. According to the Webster's New World Dictionary of the American Language, College edition. Cleveland: World Publishing, 1966, p. 753, in loco parentis means "in the place of a parent; said of a person acting temporarily with parental authority."

28. Author attended hearing, 1991.

29. This reorganization, a herculean effort, was widely admired throughout the California public library community. In 1994, voters endorsed a new benefit assessment for the Library with a 68.9 percent mandate. The assessment was intended to help replace revenues lost by state legislated property tax shifts which caused losses of 40 percent in the County Library. The County Service Area provides about one-third of the County Library's revenues. Figures cited are from Santa Clara County Library Financial Overview, available at http://www-lib.co.santa-clara.ca.us/fin_over.html

30. Santa Clara County Library History, available at http://www-lib.co.santa-clara.ca.us/scchistory.html

31. Minutes of the Joint Powers Authority, 1994.

32. Cited in Whitney North Seymore, Jr. and Elizabeth N. Layne, For the People: Fighting for Public Libraries 7 (1979).

33. Andrew Carnegie,Autobiography of Andrew Carnegie (1920),46-7 cited in Id. At 8-9.

34. Abigail A. Van Slyck, Free to All: Carnegie Libraries & American Culture 1890-1920 2 (1995)

35. Resolution on the Use of Filtering Software in Libraries; in its entirety, it states:

"WHEREAS, On June 26, 1997, the United States Supreme Court issued a sweeping re-affirmation of core First Amendment principles and held that communications over the Internet deserve the highest level of Constitutional protection; and
WHEREAS, The Court's most fundamental holding is that communications on the Internet deserve the same level of Constitutional protection as books, magazines, newspapers, and speakers on a street corner soapbox.The Court found that the Internet "constitutes a vast platform from which to address and hear from a world-wide audience of millions of readers, viewers, researchers, and buyers," and that "any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox"; and
WHEREAS, For libraries, the most critical holding of the Supreme Court is that libraries that make content available on the Internet can continue to do so with the same Constitutional protections that apply to the books on libraries' shelves; and
WHEREAS, The Court's conclusion that "the vast democratic fora of the Internet" merit full constitutional protection will also serve to protect libraries that provide their patrons with access to the Internet; and
WHEREAS, The Court recognized the importance of enabling individuals to receive speech from the entire world and to speak to the entire world. Libraries provide those opportunities to many who would not otherwise have them; and
WHEREAS, The Supreme Court's decision will protect that access; and
WHEREAS, The use in libraries of software filters which block Constitutionally protected speech is inconsistent with the United States Constitution and federal law and may lead to legal exposure for the library and its governing authorities; now, therefore, be it
RESOLVED, That the American Library Association affirms that the use of filtering software by libraries to block access to constitutionally protected speech violates the Library Bill of Rights.

Adopted by the ALA Council, July 2 1997"

Available at http://www.ala.org/alaorg/oif/filt_res.html

In addition, the American Library Association Intellectual Freedom Committee issued a Statement on Library Use of Filtering Software on July 1, 1997. It is available at http://www.ala.org/alaorg/oif/filt_stm.html

36. Office for Intellectual Freedom of the American Library Association, Intellectual Freedom Manual xiii (5th ed. 1996).

37. X. ALA Intellectual Freedom Statements. Library Bill of Rights. The American Library Association affirms that all libraries are forums for information and ideas, and that the following basic policies should guide their services:

1. Books and other library resources should be provided for the interest, 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.
2. 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.
3. Libraries should challenge censorship in the fulfillment of their responsibility to provide information and enlightenment.
4. Libraries should cooperate with all persons and groups concerned with resisting abridgment of free expression and free access to ideas.
5. A person's right to use a library should not be denied or abridged because of origin, age, background, or views.
6. 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.

Adopted June 18, 1948; amended February 2, 1961, and January 23, 1980, by the ALA Council.

38. Access for Children and Young People to Videotapes and other Nonprint Formats: An Interpretation of the Library Bill of Rights, in 1989 (with last revision in 1991).

39. Id.

40. Id.

41. ALA Library Bill of Rights in Cyberspace 1996:

Electronic information, services and networks provided by libraries should be readily, equally, and equitably accessible to all library users.
Libraries and librarians should not deny or limit access to information available via electronic resources because of its any conceivable topic from any conceivable topic from controversial content or because of personal beliefs or fears of confrontation
Information retrieved or utilized electronically should be considered constitutionally protected unless determined otherwise by a court with appropriate jurisdiction.
Responsibility for, and any restriction of, a child's use of the Internet rests solely with his or her parents or legal guardians.

42. Library Bill of Rights, Article V.

43. California Library Association, Intellectual Freedom Committee, California Intellectual Freedom Handbook (1992).

44. Id. at 1.

45. Id.

46. Renton v. Playtime Theaters, 475 U.S. 41 (1986).

47. Goosebumps won first place in the most-challenged books survey done by the American Library Association Office for Intellectual Freedom in 1996. More titles and information available at http://www.ala.org/bbooks/challeng.html

48. Professor Gerald Gunther, Constitutional Law Class, Stanford University Law School, Spring, 1995. For a simplified introduction, see Mary Minow, "Filtering the First Amendment for Public Libraries," California Libraries, (June 1997). The article is substantially available at http://www.best,com/~tstms/filte.html

49. This allows public libraries to limit meeting room use on the basis of time, place and manner considerations. For example, a few years ago, the Potrero Branch of the San Francisco Public Library found its fifteen minutes of fame when an undercover reporter went into the library's meeting room with a lipstick-size miniature camera and did an expose of NAMBLA meetings on KRON. NAMBLA, the North American Man-Boy Love Association, espouses the liberation of children's sexuality. Mere discussion of this pursuit is protected, and would not likely rise to illegality unless the men started conspiring to break the law or began to actually solicit children in the library. The library instituted some content-neutral time, place, and manner restrictions, such as posting meeting room schedules 72 hours in advance and occassional staff monitoring of all meeting room activities. Reportedly, this resolved the situation without imposing content-based restrictions (or viewpoint based, presuming groups discussing sexual abuse of children were not similarly banned). Ken Hoover, "Man-Boy Group Strains S.F. Tolerance," San Francisco Chronicle, A17, January 18, 1992. Incidentally, this is a good example of attacking speech with more speech. KRON then brought in a reporter and cameraman, and "[t]he 10 men present reacted the way cockroaches do when the kitchen light comes on." Scott Harris, "A Victory for Shadowly Crusader as Persistent as a Nazi Hunter and as Duplicitous as a Con Man, Mike Echols `Stings' Pedophile Group and Stirs a Tempest in San Francisco," Los Angeles Times, Part-E, March 10, 1992.

[50]. William Morris, (editor), American Heritage Dictionary of the English Language, (1976).

51. New York v. Ferber, 458 U.S. 747, (1982).

52. Ferber, 458 U.S. at 757.

53. 18 U.S.C. 2256 (8) defines child pornography as: "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where - (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; (C) such visual depiction has been created, adapted, or modified to appear that such an identifiable is engaging in sexually explicit conduct; or (D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction or a minor engaging in sexually explicit conduct ... ."

18 U.S.C. 2256(2) defines "sexually explicit conduct" as actual or simulated: "(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (B) bestiality; (C) masturbation; (D) sadistic or masochistic abuse; or (E) lascivious exhibition of the genitals or public area of any person.

For analysis of its constitutionality, see Richard Adelman, "The Constitutionality of Congressional Efforts to Ban Computer-Generated Child Pornography: A First Amendment Assessment of S. 1237," 14 J. Marshall J. Computer & Info. L. 483 (Spring 1996). Adelman compares the compelling governmental interest in actual harm to the subjects to the paternalistic interest in regulating the possessor's mind.

54. The Free Speech Coalition v. Reno, U.S.D.C. (N.D. of Ca.) No. C 97-0281.

55. First Amendment Legal Center at Vanderbilt University. First Amendment Legal Watch Vol II, No. 33, available upon free subscription to lwadmin@fac.org

56. Miller v. California, 413 U.S. 15, 24 (1973). In Miller, the Court reviewed a criminal conviction against a commercial vendor who mailed brochures containing pictures of sexually explicit activities to individuals who had not requested such materials.

57. Miller, 413 U.S. at 24. The decision offers some further clarification: "Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct specifically defined by the regulating state law, as written or construed." Id. 413 U.S. at 27. Later, in Jenkins v. Georgia, 418 U.S. 153 (1974), the Supreme Court reversed the conviction of a movie theater owner for showing the film, Carnal Knowledge. The Court held that the First Amendment would not allow the materials to be labeled obscene unless they "depict or describe patently offensive `hard-core' sexual conduct."

58. Brockett 472 U.S. 491 citing the 9th Circuit Court of Appeals 725 F. 2d 482 (1984) decision which it upheld.

59. Reno v. ACLU, ___ U.S. ____ (1997), available at http://www.findlaw.com/casecode/supreme.html

60. Reno v. ACLU, ___ U.S. ____ (1997), available at http://www.findlaw.com/casecode/supreme.html

61. Presumably, he refers to excretion in relation to sex.

62. Kristen Delguzzi, "Flynt Uncovering All the Bases: Hustler Publisher Unable to Bait Local Authorities," The Cincinnati Inquirer, May 19, 1997.

63. 18 U.S.C.A. Section 1465

64. CA Penal Code 311 et.seq. On September 30, 1997, Governor Pete Wilson signed into law a new provision which states: "Every person who, with knowledge that a person is a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by electronic mail, the Internet, or a commercial online service any harmful matter to a minor - with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent, or for the purpose of seducing a minor - is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail." CA Penal Code 288.2. Some opponents of the Communications Decency Act say that this new California also has terms that could be deemed unconstitutionally vauge. Courtney Macavinta, "Wilson Signs Net Sex Predator Law," The Net, October 1, 1997, available at http://www.news.com/News/Item/0,4,14801,00.html

65. In fact, in a most noteworthy case to date, a couple in Milpitas, California (a part of the Santa Clara County Library jurisdiction) was tried on obscenity charges in Tennessee, even though they had not left Milpitas. The couple had uploaded an index of sexual images on a bulletin board, and had even checked with the local police to ensure that these images were not legally "obscene." Nevertheless, they were called into court in Memphis, Tennessee and convicted; discussion with Tom Nolan, attorney for the Thomases, Legal Issues in Cyberspace, Stanford Law School, Spring, 1997. For a riveting account of their story, see Jonathan Wallace and Mark Mangan, Sex, Lies and Cyberspace (1996).

66. Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989).

67. Sable was free to tailor its messages, on a selective basis, if it so chose, to the communities it chose to serve. Sable could hire operators to determine the source of the calls, or engage the telephone company to arrange for screening and blocking out-of-area calls or find another means for providing messages compatible with community standards. Sable, 492 U.S. at 125.

68. Hamling v. United States, 418 U.S. 87, 106 cited in Sable, 492 U.S. at 125.

69. Ginsberg v. New York, 390 U.S. 629 (1968).

70. Pacifica, 438 U.S. 726 (1978). In Pacifica, a father and son were driving home in the middle of the afternoon, and heard George Carlin's 12-minute monologue entitled "Filthy Words" on a New York radio station. The father complained to the station, which was subject to regulation by the FCC, which spoke of the law of nuisance where the "law generally speaks to channeling behavior more than actually prohibiting it ... ." Pacifica, 438 U.S. at 748-749. Justice Stevens wrote the majority opinion, upholding FCC sanctions because of the "pervasive presence" of broadcasting in the afternoon when children were likely to be in the audience. " ... Pacifica's broadcast could have enlarged a child's vocabulary in an instant." The appendix to the opinion gives a verbatim transcript of "Filthy Words." It starts out: "Aruba-du, ruba-tu, ruba-tu. I was thinking about the curse words and the swear words, the cuss words, and the words that you can't say, that you're not supposed to say all the time, cause words or people into words want to hear your words and sell them back to you if they can, (laughter) listen in on the telephone, write down what words you say ... so I have to figure out which ones you couldn't and ever and it came down to seven but the list is open to amendment, and in fact, has been changed, uh, by now, ha, a lot of people pointed things out to me, and I noticed some myself. The original seven words were, shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. Those are the ones that will curve your spine, grow hair on your hands and (laughter) maybe, even bring us, God help us, peace without honor (laughter) um, and a bourbon ... ." Pacifica, 438 U.S. at 751. Note to reader: The paper you are reading is hereby screened out by any good keyword-based filter.

71. Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989). Justice White said, "Sexual expression which is indecent but not obscene is protected by the First Amendment."

72. Reno v. ACLU, ___ U.S. ____ (1997), available at http://www.findlaw.com/casecode/supreme.html

73. Brandenburg v. Ohio, 395 U.S. 444, 446 (1969), cited in Rice v. Paladin Enterprises, 940 F. Supp. 836, 845.

74. As instructed, Perry replaced a tag on his rental car, set up base in a motel, drilled out the serial number on an AR-7 rifle and shot his victims through the eyes from three feet away to avoid blood splatter on his clothes. Rice v. Paladin Enterprises, No. 96-2412 (4th Cir. 1997) available at http://www.law.emory.edu/4circuit/nov97/962412.p.html; to track updates on the case, try http://www.fac.org

75. Paladin, 940 F. Supp. at 849.

76. Rice v. Paladin Enterprises, No. 96-2412 (4th Cir. 1997).

77. 47 U.S.C. Sec. 223(a) to (h) (1996).

78. In February 1996, both the American Civil Liberties Union and the American Library Association filed suits to enjoin the Communications Decency Act. The suits were consolidated in Reno v. ACLU.

79. Reno v. ACLU, ___ U.S. ____ (1997), available at http://www.findlaw.com/casecode/supreme.html

80. The first, 47 U. S. C. A. SS223(a) (Supp. 1997), prohibits the knowing transmission of obscene or indecent messages to any recipient under 18 years of age. It provides in pertinent part:

"(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 permits 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."

The second provision, SS223(d), prohibits the knowing sending or displaying of patently offensive messages in a manner that is available to a person under 18 years of age. It provides:

"(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."

The breadth of these prohibitions is qualified by two affirmative defenses. See SS223(e)(5) (26). One covers those who take "good faith, reasonable, effective, and appropriate actions" to restrict access by minors to the prohibited communications. SS223(e)(5)(A). The other covers those who restrict access to covered material by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number or code. SS223(e)(5)(B). Reno.

81. FCC v. Pacifica, 438 U.S. 726, 748 (1978).

82. Justice Stevens relies heavily on the 410 findings of the lower court, including 356 paragraphs of the parties' stipulation and 54 findings based on evidence received in open court. 929 F. Supp. at 830 at 844-845 (finding 88) cited in Reno v. ACLU, ___ U.S. ____ (1997), at n.15, and available at http://www.findlaw.com/casecode/supreme.html

83. Reno, at n. 17, citing ACLU v. Reno, 929 F. Supp.at 845 (finding 89).

84. National Law Center for Children and Families, NLC Memorandum of Law on Legal Issues Involving Use of Filtering Software by Libraries, Schools, and Businesses to Restrict Access to Internet Pornography is Constitutional (1997) available at http://www.filteringfacts.org/nlc.htm

85 Various persons, mentioned at CAC and JPA and Markulla Center meetings in Summer, 1997, which author attended.

86. Early, Information Age, at 10. Early went to the San Jose Public Library, which is located in Santa Clara County, but which is governed by the City of San Jose. The City Council reaffirmed its "no-filters" policy in an 8-3 vote on September 23, 1997. Author attended meeting.

87. Id. at 10, 23.

88. Author's attendance at JPA and CAC meetings, supplemented by consistent statements by librarians at Santa Clara County Library made to the author personally.

89. Mark Simon, "Internet Porn at Library Pushes Buttons in Gilroy," San Francisco Chronicle, (June 10, 1997).

90. 47 U.S.C. Sec 223 (d)(1)(B).

91. Ginsberg, 390 U.S. 629 at 639 cited in Reno.

92. Reno v. ACLU, ___ U.S. ____ (1997), and available at http://www.findlaw.com/casecode/supreme.html

93. For a simplified look at the standards, see Mary Minow, "Filtering the First Amendment for Public Libraries: A Look at the Legal Landscape," California Libraries, 1, (June 1997), also available at http://www.best.com/~tstms.filte.html

94. Reno v. ACLU, ___ U.S. ____ (1997), and available at http://www.findlaw.com/casecode/supreme.html, with emphasis on parentsadded by the Supreme Court to the District Court opinion.

95. "Question: Mr. Ennis, you did say - in your opening that you were going to tell us about a less restrictive, more effective means. And I was intrigued by that, and I hope, before your time is up, you will be able to do that.
Mr. Ennis: Yes. I'd be very happy to turn to that.
Mr. Ennis: Chief Justice Rehnquist, the basic ones don't cost a thing. Everyone - all of the 12 million Americans who subscribe to the Internet through the major online service providers get, at no additional cost, the parental control options that all of the major online service providers offer. Using those options, by clicking one box, you can completely prevent all access to the Internet, including to foreign speech on the Internet, which this law will not deter.
Question: So, there will be no cost involved in any part of this alternative to the parents?
Mr. Ennis: Not if the listener uses those software programs, some of which are available for free and some of which cost perhaps $30, which parents can use to filter content in different ways. The -
Question: Well, Mr. Ennis, the Government says that these programs aren't effective. And that's pretty much what the District Court concluded too.
Mr. Ennis: Justice O'Connor, with respect, I don't think that's a fair characterization. If you look at page 42a of the joint appendix, the District Court summarized by saying that these were effective, and there was reason to believe they would soon be more widely available. Even the Government, if you look at pages 13 and 9 of the Government's reply brief, the Government concedes, at page 13, that parents today, using these software controls, can effectively prevent their children from having access to any indecent speech, including indecent speech posted abroad. The Government's response to that, however, is to say, well, yes, if parents want to be really safe and secure, they can completely protect their children; but that might deprive the children of access to some parts of the Internet they should have access to."

Oral Argument of Bruce J. Ennis, On behalf of the Appellees, Reno v ACLU, March 19, 1997.

96. Filtering: Myth vs. Fact available at Filtering Facts Web site at http://www.filteringfacts.org/myths.htm

97. Mark Simon, "Internet Porn at Library Pushes Buttons in Gilroy," San Francisco Chronicle, (June 10, 1997).

98. California Penal Code SS 313.1(c)(1) available at http://www.leginfo.ca.gov/calaw.html

99. For a thorough analysis of statutory exemptions, see Ian. L. Saffer, "Note. Obscenity Law and the Equal Protection Clause: May States Exempt Schools, Libraries, and Museums from Obscenity Statutes?" 70 N.Y.U.L. Rev. 397 (May 1995). Saffer examines statutory exemptions and distinguishes different characteristics: display of materials v. distribution of materials, and obscenity v. harmful matters.

100. Moore v. Younger, 54 Cal. App. 3d 1122 (1976).

101. Sara Goerke and Betty Gay, "Harm - In the Mind or In the Matter," 32 California Librarian 98-99 (April-July 1971), cited in Ronald F. Sigler, "Librarians Win Relief in "Harmful Matter" Law," Sightlines 5 (Spring 1980).

102. Sigler, supra, at 5.

103. "Victory for Common Sense," Sacramento Bee, (28 February, 1975), cited in Dr. Ronald F. Sigler, "Librarians Win Relief in "Harmful Matter" Law," Sightlines at 5 n6 (Spring 1980).

104. "Appeals Panel Says Librarians have Relief," Freedom to Read Fdn News, 5 (Spring 1976) cited in Sigler, supra, at 5.

105. Moore v. Younger, 54 Cal. App.3d at 1125.

106. "Foundation Supports Long Island Suit, Two Actions in California," Newsletter on Intellectual Freedom, XXVI 128 (September 1977) cited in Sigler, supra, at 5.

107. George Deukmejian, Attorney General by Carol Wendelin Pollack, Deputy Attorney General to Ethel S. Crockett, California State Librarian, December 31, 1979, Sacramento, California; William D. North to Judith F. Krug, Exec. Director, Freedom to Read Foundation (FTRF), 10 January, 1980, Chicago, IL cited in Sigler, supra, at 5-6.

108. Mike Dillon and Christina Dillon, "Our Legislative Year in Review," California Libraries, 2 (October 1997).

109. Cohen v. California, 403 U.S. 15 (1971) in which the defendant wore a jacket that said "Fuck the Draft" in a public courthouse. The Court found the expression did not pose an imminent danger and there was no captive audience.

110. Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352) (Title VII), as amended, as it appears in volume 42 of the United States Code, beginning at section 2000e, and Cal. Civ. Code Sec. 51.9 (West 1997).

111. The U. S. Equal Employment Opportunity Commission, "Facts About Sexual Harassment," available at http://www.eeoc.gov/facts/fs-sex.html (italics added by author).

112. Wendy R. Leibowitz, "Lawyers and Technology: Is There Hope for Any Cease-Fire in Heated High-Tech Holy Wars?" National Law Journal, (November 3, 1997) at B7. The Loudoun policy is available at http://www.filteringfacts.org/black.htm

113. Harris v. Forklift Systems, Inc., 510 U. S. 17 (1993).

114. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).

115. Harris, 510 U.S. at 19.

116. Harris, 510 U.S. at 19.

117. Harris, 510 U.S. at 19.

118. Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486 (M.D. Fla. 1991).

119. Robinson, 760 F. Supp. 1486.

120. Cal. Civ. Code Sec. 51.9 (West 1997).

121. Ellison v. Brady, 924 F.2d 872 (1991) and Harris, 510 U.S. 17.

122. Kelbi Folkerson v. Circus Circus, (9th Cir. 1997) WL71763.

123. Folkerson.

124. Kreimer v. Bureau of Police for the Town of Morristown, 958 F.2d 1242 (3rd Cir.1992).

125. The screens obscure whatever the patron is looking at, unless the third party is looking directly at the screen. The librarians' feedback to date is mixed, with many pointing out the unfortunate effect that it is difficult for them to assist patrons in their searches. Informal conversations with Santa Clara County Librarians, August-October, 1997. The devices, of course, may encourage some patrons to browse the cyberporn sites as well. Anecdotally, I have noticed that at the Stanford Law Library, the computers with Web access in areas with greater privacy have more evidence of cyberporn site visits - the sites are "bookmarked" than the computers in high traffic areas which do not.

126. CA Govt Code Sec 12940 et seq (West 1997).

127. Seth Finkelstein, "The X-Stop Files: The Truth Isn't Out There," cited and reprinted in the ALA Membership Discussion Forum digest 9, received October 19, 1997 from member-forum@ala.org

128. Jeannette Allis Bastian describes blocking."This 'search and destroy' tactic only results in throwing away both the good and the bad." Bastian surveys the rapidly proliferating filtering products industry, with a special focus on the filters (and their limitations) used in public libraries today. Jeannete Allis Bastian, "Filtering the Internet in American Public Libraries: Sliding Down the Slippery Slope" First Monday, (last modified October 6, 1997), available at http://www.firstmonday.org/issues/issue2_10/bastian/index.html

129. " ... We were able to view assorted nude photos; the program can be updated only monthly, so new sites fall through the cracks. Surfwatch also has its idiosyncrasies: When we tested it, addresses that contained the words shit, piss, cocksucker and blow job (as two words) were not blocked. Boobs was restricted; tits, breasts and mammary glands were not. Asshole was filtered; ass was not. Nude was forbidden; naked was not. Surfwatch allows access to a list of abortion clinics, but blocks sites that describe safe sex. We were able to download Lady Chatterley's Lover (from the Banned Books site), study the cover of the Dead Kennedys album Too Drunk to Fuck and memorize George Carlin's list of 2443 "dirty words and phrases ... . The problem with the idea that someone can be kept innocent by blocking access to "bad" words was best expressed by Carlin, who for years has railed against the absurdity of language taboos ("You can prick your finger, but you can't finger your prick")." Chip Rose, "Lust-free libraries (Playboy Forum," 43 Playboy 5 (May 1, 1996). For more humorous and not-so-humorous examples, see various LISTSERVs such as fight-censorship, filt4lib, and ALAOIF. To subscribe to fight-censorship-digest, send majordomo@vorlon.mit.edu this message in the body of the e-mail: "subscribe fight-censorship-digest" Back issues are available at ftp://vorlon.mit.edu/pub/f-c/ To subscribe to filt4lib, send a message in the subject line of the e-mail filt4lib@public.ci.escondido.ca.us. To subscribe to ALAOIF, send listproc@ala1.ala.org this message in the body of the e-mail: "subscribe ALAOIF"

130. Cyberangels Web site (an excellent resource) is available at http://www.cyberangels.com/

131. Robin Whittle, "'Refused Access Lists'? Why Internet Communications Cannot Be Reliably Blocked," First Principles Consulting, May 29, 1996, available at http://www.ozemail.com.au/~firstpr/contreg/refused.htm

132. For more findings, see TIFAP available at http://www.bluehighways.com/tifap/ Schneider also has a forthcoming book, A Practical Guide to Internet Filters (October, 1997).

133. Id.

134. Eric Berlin, "The Surfboard: Who Will Watch the Watchmen?," Internet World, 30 (November 1996).

135. Id.

136. Id.

137. Jonathan Wallace, "The X-Stop Files:Self-Proclaimed Library-Friendly Product Blocks Quakers, Free Speech and Gay Sites," available at http://www.spectacle.org/cs/xstop.html

138. Id. A few examples of sites blocked by X-Stop (from a version distributed by the company at the end of July, 1997) include: The University of Chicago's Fileroom project, which tracks acts of censorship around the world; The National Journal of Sexual Orientation Law, which describes itself as devoted to "legal issues affecting lesbians, gay men and bisexusals," and the Banned Books page at Carnegie Mellon University, which gives a historical account of the travails of books such as Candide and Ulysses; and the American Association of University Women, which describes itself as a national organization that "promotes education and equity for all women and girls." Id.

139. Scientific American Web site at http://www.sciam.com/0397issue/10397resnick1.html

140. Press Briefing by Mike McCurry and Don Gips, Domestic Policy Adviser to the Vice President, July 16, 1997 available at http://www.whitehouse.gov/WH/New/Ratings/19970716-7030.html

141. Joseph D. Lasica, "Ratings Today, Censorship Tomorrow," Salon Magazine (July 1997), available at http://www.salonmagazine.com/july97/21st/article.html

142. For example, employers, countries such as China or Singapore may find PICS a tool for "robust censorship." See Lawrence Lessig, "Tyranny in the Infrastructure: The CDA Was Bad - but PICS May Be Worse," CyberRights Now, (July 1997), available at http://www.wired.com/wired/5.07/cyber_rights.html

143. For an excellent article on ratings limitations, see Jonathan Weinberg, "Rating the Net," 19 Hastings Comment L.J. 453 (1997), available at http://www.msen.com/~weinberg/rating.htm

139. Id. at 463-464.

145. Weinberg notes refers to an article by Jonathan Wallace, "Why I Will Not Rate My Site," asks how he is to rate "An Auschwitz Alphabet." The work contains descriptions of violence done to camp inmates' sexual organs. A self- rating system, Wallace fears, would likely force him to choose between the unsatisfactory alternatives of labeling the work as suitable for all ages, on the one hand, or "lump[ing it] together with the Hot Nude Women page" on the other." Weinberg, "Rating the Net" at 462-463. He refers to Wallace's article at http://www.spectacle.org/cda/rate.html#report

146. Elizabeth Waserman, "The Net Ratings Game," San Jose Mercury-News, November 3, 1997.

147. Barbara Ford, "When the White House Calls ...," at http://222.uic.edu/~nrj/Journal_WH.html

148. Id. For the Librarians' Guide to Cyberspace, see http://www.ssdesign.com/parentspage/greatsites/

149. Newton N. Minow and Craig L. LaMay, Abandoned in the Wasteland: Television, Children and the First Amendment ,112 (1996).

150. Minow, supra, at 110.

151. One could argue that it is cheaper for the agency to provide unfiltered access, because filters cost money. On the other hand, one could argue that the agency is paying for the facilities and thus has control over its use.

152. Rust v. Sullivan, 500 U.S. 173 (1991).

153. Gordon B. Baldwin, "The Library Bill of Rights - A Critique," 7 Library Trends, 12 (1996) WL 9422495.

154. Pico, 457 U.S. at 862.

155. Jonathan D. Wallace, "Purchasing of Blocking Software by Public Libraries in Unconstitutional: A Briefing Paper," available at http://www.spectacle.org/cs/library.html

156. More information is available at http://www.vimpact.net/tlc/index.htm

157. American Council of the Blind v. Boorstin, 644 F. Supp. 811 (D.D.C. 1986).

158. Boorstin, 644 F. Supp. at 815.

159. First Amendment analysis distinguishes three types of forums: 1) a public forum, an area "which time out of mind has been used for public discourse" such as parks, streets and sidewalks; 2) a designated public forum, an area which the government has "opened for use by the public as a place for expressive activity,"; and 3) a nonpublic forum, a "government property which is not by tradition or designation a forum for public communication." - Perry Education Association v. Perry Local Education Association, 460 U.S. 37,45 (1983). If the place in question is a public forum, or a designated public forum, the State may not enforce content based restrictions unless it can "show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end " - Perry 460 U. S. at 45.

160. Brown v. Louisiana, 383 U. S. 131, 136-138 (1966). "Five young Negro males, all residents of East or West Feliciana Parishes, went into the adult reading or service room of the Audubon Regional Library at Clinton. The branch assistant, Mrs. Katie Reeves, was alone in the room. She met the men 'between the tables' and asked if she 'could help.' Petitioner Brown requested a book, 'The Story of the Negro' by Arna Bontemps. Mrs. Reeves checked the card catalogue, ascertained that the Branch did not have the book, so advised Mr. Brown, and told him that she would request the book from the State Library, that he would be notified upon its receipt and that 'he could either pick it up or it would be mailed to him.' She told him that 'his point of service was a bookmobile or it could be mailed to him.' Mrs. Reeves testified that she expected that the men would then leave; they did not, and she asked them to leave. They did not. Petitioner Brown sat down and the others stood near him. They said nothing; there was no noise or boisterous talking. Mrs. Reeves called Mrs. Perkins, the regional librarian, who was in another room. Mrs. Perkins asked the men to leave. They remained. Neither Mrs. Reeves nor Mrs. Perkins had called the sheriff, but in '10 to 15 minutes' from the time of the arrival of the men at the library, the sheriff and deputies arrived. The sheriff asked the Negroes to leave. They said they would not. The sheriff then arrested them. The sheriff had been notified that morning that members of the Congress of Racial Equality 'were going to sit-in' at the library. Ordinarily, the sheriff testified, CORE tells him when they are going to demonstrate or picket. The sheriff was standing at his 'place of business' when he saw 'these 5 colored males coming down the street.' He saw them enter the library. He called the jail to notify his deputies, and he reached the library immediately after the deputies got there. When the sheriff arrived, there was no noise, no disturbance. He testified that he arrested them 'for not leaving a public building when asked to do so by an officer.' The library obtained the requested book and mailed it to Mr. Brown on March 28, 1964. An accompanying card said, 'You may return the book either by mail or to the Blue Bookmobile.' The reference to the color of the vehicle was obviously not designed to facilitate identification of the library vehicle. The blue bookmobile is for Negroes and for Negroes only."

161. Brown, 383 U.S. at 143.

162. "Petitioners' deportment while in the library was unexceptionable. They were neither loud, boisterous, obstreperous, indecorous nor impolite. There is no claim that, apart from the continuation - for ten or fifteen minutes - of their presence itself, their conduct provided a basis for the order to leave, or for a charge of breach of the peace. We come, then, to the barebones of the problem. Petitioners, five adult Negro men, remained in the library room for a total of ten or fifteen minutes." - Brown, 383 U.S. at 139.

163. Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853 (1982).

164. Pico, 457 U.S. at 915.

165. Pico, 457 U.S. at 857-58.

166. The nine books: SlaughterHouse Five, by Kurt Vonnegut, Jr.; The Naked Ape, by Desmond Morris; Down These Mean Streets, by Piri Thomas; Best Short Stories of Negro Writers, edited by Langston Hughes; Go Ask Alice, of anonymous authorship; Laughing Boy, by Oliver LaFarge; Black Boy, by Richard Wright; A Hero Ain't Nothin' But A Sandwich, by Alice Childress; and, Soul on Ice, by Eldridge Cleaver. A Reader for Writers, edited by Jerome Archer and The Fixer, by Bernard Malamud, were also under consideration. Pico, 457 U.S. at 857 n3.

167. Pico, 457 U.S. at 867.

168. Pico, 457 U.S. at 888-889.

169. Martin v. City of Struthers, 319 U.S. 141,143 (1943) (citations omitted). In Martin, a ban on door-to-door solicitation was found to be unconstitutional, impeding the flow of information to the public.

170. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 756 (1976).

171. Kreimer v. Bureau of Police for the Town of Morristown, 958 F.2d 1242 (3rd Cir. 1992).

172. Office for Intellectual Freedom of the American Library Association, supra, at 329.

173. For a fascinating account of the court's clear designation of public libraries as limited public fora while it upholds the denial of that forum to a homeless man, see Drew Patrick Gannon, Note, "First Amendment Public Forum Analysis: Restrictions of the Right to Receive Information Upheld in Kreimer v. Bureau of Police," 97 Dick. L. Rev. 411 (Winter, 1993).

174. Kreimer, 958 F.2d at 1256.

175. Perry, 460 U.S. at 45.

176. "Text of President Clinton's State of the Union Message to Congress," New York Times, A14 (February 5, 1997) (emphasis added).

177. ACLU v. Reno, 929 F. Supp. at 882.

178. Landers v. Trustees of California State University System, Tentative Ruling Granting motion for Preliminary Injunction, in part; February, 1997, Los Angeles Superior Court.

179. Stacy Finz, "Student Wins Round for Free Speech," Los Angeles Daily News, (February 15, 1997), supplemented by e-mail with Landers, April, 1997.

180.Landers at 2-3.

181. Loving v. Boren, 1997 WL 125924 (W.D. Oklahoma 1997).

182. Loving at 1.

183. Loving at 2.

184. Loving at 3.

185. Loving at 3.

186. Informal interview with children's rights scholar, Martha Minow, Law Professor, Harvard University, July, 1997.

187. Tinker, 393 U.S. 503.

188. Tinker, 393 U.S. at 506.

189. Tinker, 393 U.S. at 508.

190. Pico, 457 U.S. at 861-862.

191. Several such cases are cited by Baldwin, supra, such as Thomas v. Board of Education, 607 F. 2d 1043,1053 (2d Cir. 1979), Frison v. Franklin County Board of Education, 596 F. 2d 1192)4th Cir. 1979); Brubaker v. Board of Education, 502 F. 2d 973 (7th Cir.1974). Moreover, a school library serving young children may exclude sexually explicit materials, even if the materials passed the constitutional test of "obscenity" - Bicknell v. Vergennes Union High School Board, 683 F. 2d 438 (2d Cir. 1980).

192. Delcarpio v. St. Tammany Parish School Board, 865 F. Supp. 350 (D. Ct. E.D. La. 1994) cited in Baldwin, supra at 8.

193. Delcarpio, 865 F. Supp. 350 cited in Baldwin, supra at 8.

194. Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).

195. Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).

196. Erzoznik v. Jacksonville, 422 U.S. 205 (1975).

197. Erzoznik, 422 U.S. at 217.

198. Erzoznik, 422 U.S. at 213-14.

199. FCC v Pacifica Foundation, 438 U.S. 726 (1978).

200. Pacifica, 492 U.S. at 126, cited in Reno.

201. Reno, citing Pacifica 492 U.S. at 127-128.

202. i>Reno v. ACLU, ___ U.S. ____ (1997), available at http://www.findlaw.com/casecode/supreme.html

203. i>Reno v. ACLU, ___ U.S. ____ (1997), available at http://www.findlaw.com/casecode/supreme.html

204. Volokh, Freedom of Speech, citing Reno, "Given the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection."

205. Author's experience working in a variety of public library settings. Naturally, I do not speak for every library.

206. Col. 24-90-102. Legislative declaration. The general assembly hereby declares that it is the policy of this state, as a part of its provision for public education, to promote the establishment and development of all types of publicly-supported free library service throughout the state to ensure equal access to information without regard to age, physical or mental health, place of residence, or economic status, to aid in the establishment and improvement of library programs, to improve and update the skills of persons employed in libraries through continuing education activities, and to promote and coordinate the sharing of resources among libraries in Colorado and the dissemination of information regarding the availability of library services. Available at http://web.intellinetusa.com/cgi-dos/statdspf.exe?W&srch=words+LIKE+%27libraries%27+ANDwords+LIKE+%27age%27&i=0&cat=FFFFFFFFFFF800&m=19&r=10&s=27644&cr=10

207. In Colorado, voters rejected a proposed Parental Rights Amendment (PRA) to their state constitution on November 5, 1996. Critics warn that if the PRA were to pass, "A chilling effect could also descend on public libraries. Colorado law and the Library Bill of Rights require equal access to all information and services in the library regardless of age. Records of research and borrowing are kept confidential ... But under the PRA, a child entering a library without a parent would be a lawsuit waiting to happen. Even if the child never left the children's section in the library, a parent's right to control the child's education and values could be infringed by library policy and the ready availability of books and other library materials. If the child looked at a book of art by Michelangelo or Mapplethorpe, could the parents sue the library? Should libraries police children's activities, or require parental accompaniment or consent?" - Patrick Steadman and Fofi Mendez, "What's Wrong with Parental Rights?," The World & I, 310 May 1, 1997.

208. This is most notable in the Pruneyard case, in which the California Supreme Court held that a private shopping center could be required to grant access for expressive activity, including the distribution of pamphlets, despite objections by the shopping center owners. The California court treated the shopping center as a public forum, and this was upheld by the Supreme Court in PruneYard Shopping Center v. Robins 447 U.S. 74 (1980). Justice Rehnquist wrote the opinion for the Court concluding that "state constitutional provisions, which permit individuals to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, [do not] violate the shopping center owner's [federal] property rights [or] his free speech rights." He noted that there was nothing preventing the shopping center owners from disavowing their connection with the message.

209. California Education Code Section 48907, available at http://www.leginfo.ca.gov

210. California Education Code Section 48950 available at http://www.leginfo.ca.gov The California Constitution reads in part

Article 1. Declaration of Right Sec. 2. (a) Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press. Available at http://www.leginfo.ca.gov/const-toc.html

211. California Penal Code Section 313.2 reads: (a) Nothing in this chapter shall prohibit any parent or guardian from distributing any harmful matter to his child or ward or permitting his child or ward to attend an exhibition of any harmful matter if the child or ward is accompanied by him. (b) Nothing in this chapter shall prohibit any person from exhibiting any harmful matter to any of the following: (1) A minor who is accompanied by his parent or guardian. (2) A minor who is accompanied by an adult who represents himself to be the parent or guardian of the minor and whom the person, by the exercise of reasonable care, does not have reason to know is not the parent or guardian of the minor. Available at http://www.leginfo.ca.gov/calaw.htm ...l

212. Schneider v. State (Town of Irvington), 308 U.S 147 (1939).

213. Reno, citing Brief for Appellants 39.

214. The opinion discusses at some length the District Court's findings as to the nature of the Internet. Principally, the problem of age verification differs for different uses of the Internet. The District Court "categorically determined that there 'is no effective way to determine the identity or the age of a user who is accessing material through e-mail, mail exploders, newsgroups or chat rooms.'" Reno, citing ACLU 929 F. Supp at 845 (finding 90).

215. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).

216. Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985).

217.Wash.Rev.Code Section 7.48A.010-7.48A.900 (1983) (now invalid) cited in Brockett, 472 U.S. 491.

218. Brockett, 472 U.S. 491.

219. Reno, citing Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74-75 (1983).

220. Montgomery v. Boshears, 698 F.2d 739 (5th Cir. 1983).

221. However it denied the claim, holding that she failed to show that those expressions were a motivating cause for non-renewal. Mary Hutchings Reed, Employment Discrimination and Related Litigation in Libraries in Legal Issues for Library and Information Managers, Haworth Press, 64 (1987). Reed discusses Lambert v. Richard 59 F.3d 134 (9th Cir. June 6, 1995) in which a library employee, Barbara Lambert, was reprimanded for insubordination following her appearance before the Santa Ana City Council in which she criticized the library director's management on behalf of the union was held to address a matter of public concern and thus was entitled to protection. Summary judgment was reversed.

222. Pickering v. Board of Educ., 391 U.S. 563 (1968).

223. Pickering, 391 U.S. at 572-74.

224. Connick v. Myers, 461 U.S.138, 147-48 (1983).

225. Pierce v. Ortho Pharmaceutical Corp., 417 A. 2d 505 (N.J. 1980).

226. California Library Association, Intellectual Freedom Committee, Intellectual Freedom Handbook: A Manual for California Librarians, 21 (1992).

227. I have asked the question informally to members of the Stanford Law School community.

228. Rodney A. Smolla, "Freedom of Speech for Libraries and Librarians," 85 Law Libr. J. 71.

229. Id. at 71.

230. Rodney Smolla, Free Speech in an Open Society, 196 (1992).

231. Id.

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