Libraries and the Internet, Part III:
Library Authority to Filter/Block Internet Sites

Internet access poses new issues regarding access to information and communication in library setting. It differs from book selection in that library boards traditionally have wide discretion in choosing the materials the library will provide to the public depending on financial and space constraints. Access to the Internet has no such constraints once a library offers Internet access. Thus, libraries arguably do not have the same discretion to pick and choose which Internet sites they want to offer. However, as a limited public forum, libraries may be able to block access to sites that do not conform to the purpose and nature of the library's activities. Moreover, a library may block access to protect children from harmful material, but such a policy must be narrowly tailored to the protection of children. It appears that adults must still have the ability to freely access the Internet, while children are not blocked out from legitimate Internet sites.

The difference between books and the Internet

"The administration of any library, whether it be a university," a public junior high school or a local library, "involves a constant process of selection and winnowing based not only on educational needs but financial and architectural realities." Minarcini v. Strongsville City School Dist., 541 F.2d 577, 581 (6th Cir. 1976). Some authorized person or body makes the determination as to what the library will hold given its financial and space limitations. President Council, Dist. 25 v. Community School Bd. No. 25, 457 F.2d 289 (2d Cir. 1972). Once the library places a book on the shelf, it does not have unfettered discretion to remove the book unless it is for some content-neutral purpose, i.e. book becomes obsolete or irrelevant or the book was initially improperly selected. Id.; see also Minarcini, 541 F.2d at 581. A librarian or whoever is responsible for the selection and removal of books, however, cannot remove a book for a reason solely related to the social or political tastes of an individual or of the board members. Minarcini, 541 F.2d at 583.

The access to Internet sites differs from that of books in a library. Courts have allowed libraries significant discretion as to the choice of materials they elect to make available to the public, based primarily on practical concerns. A library cannot, given its financial and space limitations, provide patrons with every single book in existence. But with the Internet, it can. Financial and space considerations are no longer a concern. Once a person logs on to the Internet, regardless of which Web site one may log on to, the price will remain the same except when a person has to subscribe before he or she can explore beyond the initial Web page. One view is that any blocking of access to sites on the Internet is more like ripping certain pages out of a magazine and then putting it on the shelf than it is like a failure to provide the magazine in the first place. However, an opposing viewpoint would be that libraries retain the authority to select what sites are offered, akin to selecting reading materials. However, blocking access to certain Internet sites does raise genuine constitutional issues for library districts. A library may be able to restrict Internet sites without violating a person's First Amendment rights in two ways.

The limited public forum nature of public libraries

First, a library is considered a limited public forum, rather than a traditional public forum. Kreimer v. Bureau of Police for the Town of Morristown, 958 F.2d 1242, 1259 (3rd Cir. 1992). (Public forum concepts were discussed in Part I of this series, which was published in the Fall 1997 issue of Illinois Libraries). A limited public forum is a public forum created for a limited purpose. For example, a university campus is designated public forum, but the campus need not make all its facilities equally available to students and nonstudents alike or grant free access to all its grounds or buildings. Widmar v. Vincent, 454 U.S. 263, 273 n.5 (1981). A library is a limited public forum in that the library is open to the public only for specified purposes, such as reading, studying and use of the library materials.

* Scott F. Uhler and Rinda Y. Allison are attorneys with the law firm of Klein, Thorpe & Jenkins, Ltd. in downtown Chicago, with offices in Orland Park as well. The authors would like to acknowledge the assistance of R. Mina Lee, a clerk with the firm, in the preparation of this article. Parts I and II of this article were published in the Fall 1997 and Winter 1998 issue of Illinois Libraries.

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Kreimer, 958 F.2d at 1260. The library has not opened its door to the public for the exercise of all First Amendment activities. Id.

"A library is a place dedicated to quiet, to knowledge and to beauty. Its very purpose is to aid in the acquisition of knowledge through reading, writing and quiet contemplation... As a limited public forum, the library is obligated only to permit the public to exercise rights that are consistent with the nature of the library and consistent with government's intent in designating the library as a public forum." (Kreimer, 958 F.2d at 1260-61)

Thus, as a limited public forum, the library may be able to block access to certain Internet sites on the basis that such sites are not consistent with the nature and purpose of the library. This argument is weakened, however, because the activities validly prohibited in Kreimer and Widmar were ones that, although speech related, interfered with other patrons' valid use of the library. One could argue that mere access of a Web site by a computer user would not affect other library users at all. Also citing the limited public forum concept, in Loving v. Boren, 956 F.Supp. 953, 955 (W.D. Okla. 1997), affirmed, 1998 WL 3261 (10th dr.), the federal district court found that action to block Internet sites due to possible criminal liability of the university was lawful because the University of Oklahoma was not a public forum and could, therefore, restrict Internet access to conform to the intended purpose of the institution, which was academic study and research. It is important to note, however, that while certain sites were blocked from the university's network access, by the time of trial the complaining professor also had access on his same university computer to the full Internet, and so the district court also stated that the plaintiff was not harmed by the university's action. The 10th Circuit affirmed the case on that ground only and did not reach the interesting First Amendment issues raised by the parties.

Illinois statutes, like Oklahoma's, also make it a criminal offense for a person to knowingly expose children younger than 18 to harmful materials. 720 ILCS 5/11-21 (1996). The statute defines material as harmful "if to the average person, applying contemporary standards, its predominant appeal, taken as a whole, is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion..." Moreover, 720 ILCS 670/1 makes it unlawful for a person to show any minor printed material that is "devoted to the publication or principally made up of criminal news, police reports or accounts of criminal deeds, or pictures and stories of deeds of bloodshed, lust or crime." Because of these criminal implications on library staff, and because states do have a legitimate interest in protecting children from sex and violence, a library may be able to block access to certain Internet sites if such blocking is narrowly tailored to meet this governmental interest.

Our Illinois Library System Act specifically states that the State Librarian shall administer rules and regulations for the purpose of "[providing] adequate library materials to satisfy the reference and research needs of the people of this state." 75 ILCS 10/3(c). If any constitutional challenges were brought to regulations blocking access to certain Internet sites, libraries could argue that the purpose of the library, based on 75 ILCS 10/3(c), reinforces its characterization as a limited public forum, because libraries exist to provide reference and research needs to Illinois citizens and that the Internet sites that have been blocked do not fit this purpose. However, this argument is weakened to some extent because libraries do in fact provide books for leisure as opposed to only reference and research, and also provide records, tapes, videos and magazines that could be considered nonreference or nonresearch material.

The libraries' governmental interest in protecting children

The second theory under which library districts may be able to legitimately block access to certain Internet sites is for the protection of the many children who request the library. As discussed in Part I of this series, when a governmental body attempts to restrict a person's first amendment rights, it must demonstrate that at least a legitimate governmental interest exists for doing so. Moreover, any restrictions must be narrowly tailored to meet that governmental interest. One of the governmental interests for a library is to maintain and protect the welfare of the children.

In determining what is narrowly tailored, however, one must also consider the interests of the adults who use the library. The U.S. Supreme Court, when it struck down the Communication Decency Act as unconstitutional, ruled that the law impermissibly infringed the free speech rights of adults in the name of protecting children. (See Reno v. American Civil Liberties Union, 117 S.Ct 2329 (1997). The Supreme Court, however, did not rule out parents' ability to install blocking software to protect their children. Id. Thus, while a library can rely on the significant public interest related to protecting children when using screening software for children, that same rationale would not support the use of such software with adults.

The rights of adults to greater access on the Internet, even to certain indecent material, was upheld in ACLU v. Reno and recently reaffirmed in Urofsky v. Allen, a case decided on Feb. 26, 1998, by the federal district court for the eastern district of Virginia. The state of

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Virginia had passed a law prohibiting state employees from accessing sexually explicit material over state-owned computer networks, except in certain approved circumstances. The state argued that the law was necessary to promote efficiency in the workplace and to prevent a sexually hostile work environment. But the court found that the law was unconstitutional because it was both too broad and, at the same time, too narrow. It was too broad in that it would prohibit even research and debate on sexual themes in art or history and many sex related medical discussions, and it was too narrow in that it did not prohibit many other behaviors that could contribute to a lack of workplace efficiency or contribute to a sexually hostile work environment.

A court may conceivably consider the current use of blocking software on all Internet terminals as too broad a screening mechanism to properly address a library's asserted interest in protecting children. As libraries know, much of the blocking software available is work sensitive. For example, a program may block access to all Internet sites that use the term "breast," but this may also block out sites informing people about breast cancer. This prevents children from gaining access to such information. Although blocking software can contain a feature where blocks on certain sites can be manually overridden, because the software is blocking out legitimate sites a court could rule that use of blocking software is not narrowly tailored to meet the governmental interest. Public libraries may have to develop a policy where librarians would periodically check the sites for blocks on legitimate sites and such policy for removing blocks should be akin to the policy the library uses in choosing materials made available to the public. Unfortunately, this simply may not be economically feasible. Given the available technology courts may rule that libraries cannot narrowly tailor the restriction any further. The newest technology on the horizon is a system for rating all Internet sites and only allowing access to age-appropriate sites. But this appears to present problems because of who rates the sites, whether the sites are accurately rated, and what happens with unrated sites or sites that originate overseas, which sites might not be included in the rating system.

Possible solutions to the tough question

Where are libraries left when all the above issues are taken into consideration? As discussed in Part II of this article in the Winter 1998 issue of Illinois Libraries, the Internet does not fit neatly into any of the categories that the law has previously created in assessing First Amendment freedoms and lawful limits on such freedoms. Nevertheless, several concepts have been carved out in the few court cases that have analyzed disputes arising over the use of, or restriction of, access to the Internet in certain governmental and employment settings. While it is possible, it may be difficult given the current state of technology for a library to withstand a court challenge to a policy blocking specified Internet sites or applying word filters to computers for adult users. It is more likely that courts would uphold such a policy as it applied to children. This policy could be bolstered by a mechanism for children to access unfiltered Internet use, such as in the company of their parents, or by individual written permission from the parents. Numerous court decisions have upheld the rights of parents to make educational decisions for their children, which could include Internet access decisions. If a library determines to grant unfiltered Internet access to all patrons regardless of age, again written permission from minors' parents could offer added protection to the library.

Certainly there is no lack of legislative discussion in both national and state arenas on the issue of Internet use and the protection of children from inappropriate materials. Congress continues to consider possible Internet regulations like rating systems, "V-chip" technology and library and school "E-rate" discount regulations requiring filtering. As we have said throughout the three parts of this discussion of the Internet, everything about Internet use is evolving. However, as either legislative or judicial guidance in the area becomes clearer, libraries will be able to be more confident in their decisions regarding Internet use by library patrons of all ages.

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