Q1 What guidance does my library have to ensure patrons’ rights to information on the Internet?
The American Library Association has extensive resources on its website.
Pay particular attention to Libraries & the Internet Toolkitand the CIPA site at http://www.ala.org/cipa for updated information.2
Q2 Can libraries or librarians be criminally liable for having obscene, indecent, or controversial materials in their collections?
No. Obscenity law imposes liability on those who create and post illegal materials on the Internet, not on those who merely provide access to such content. Federal obscenity law prohibits obscenity on federal property, in the mail, on radio and television, in interstate commerce and on interstate highways and railroads, even when the obscene material is transported intrastate.3 State laws vary in specifying exactly what is defined as obscene, but it may not, in any case, be more restrictive than the limits set by the Miller case.
In Miller v.California in 1973, the U.S. Supreme Court formulated the constitutional standard for obscenity that is still in use today:
(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 appli- cable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.4
Furthermore, a provision of the federal Telecommunications Act of 1996 states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This provision prohibits holding interactive computer services liable for their failure to edit, withhold, or restrict access to offensive material.5
In 2001, a California appellate court explicitly found that this immu- nity applied to library Internet access.6 Even school libraries, which are subject to CIPA, are not criminally or civilly liable. The penalty for non- compliance is a cut in the applicable federal funds to the library.
Q3 Do patrons have a right to legal materials that are inappropriate?
Yes, both adults and children have First Amendment rights to materials that do not fall within the ambit of “illegal material.” Inappropriate, inde- cent, or sexually explicit materials that do not fit under federal or state stat- utes’ definitions of child pornography, obscenity, or “harmful to minors”
materials may not be restricted by a public library. Public libraries are gov- ernment entities, and the First Amendment restrains the government from making content-based speech restrictions, unless to do so would further a
“compelling need” and the method chosen was the least restrictive alter- native.
Q4 Do children have the same rights as adults to materials?
Not exactly. In a school library setting, the Supreme Court has limited minors’ right to receive information if the information is “educationally unsuitable”—but not based on a school’s disapproval of the content of the information.7
More broadly (inside and outside school settings), the Court has allowed restrictions on material that is “harmful to minors,”8though this material may not be restricted as to adults. Essentially, this is material that is considered “obscene” for minors even if the materials are protected for adults. Most states have enacted so-called “harmful to minors” obscenity statutes. The CIPA legislation and the Child Online Protection Act legis- lation (also struck down by the courts, but final status as yet unknown) unsuccessfully attempted to set a national standard for material “harmful to minors.” (See the appendix for definitions.)
A helpful legal analysis of minors’ rights to receive information under the First Amendment can be found at the ALA website.9
Q5 Who determines whether materials on the Internet are legal or illegal?
Only a court of law—not citizens’ groups, clergy, or librarians—can deter- mine the legal status of materials. The types of speech that courts have determined to fall outside the broad umbrella of the First Amendment are very narrowly defined. These categories are child pornography, obscenity, and material that is “harmful to minors.” Determinations as to whether a particular Internet site falls within these categories is determined by the legal definition and by an actual court decision examining the material.
It should be noted that in some states, even materials that may be
judged by a court to be obscene or “harmful to minors” may be permissi- ble in a library collection, or when used for bona fide research purposes per state law.10
Q6 Can you give examples of materials that have been judged obscene?
In practice, prosecuting obscenity cases is very difficult. 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, bestiality, necrophilia, incest, or any type of non-consensual sex. He notes that taken as a whole, language is important, and this is one of the reasons that all—or most—adult magazines have literary content.11 The adult industry has a growing number of web pages that offer legal information regarding the Internet distribution of adult materials.
According to one of them, “If you can prove that the content on your adult website has some literary, artistic, political, or scientific value, the criminal charges against you might be dismissed . . . In light of this, you might want to consider displaying or linking to content that has some- thing other than masturbatory value such as information about health care issues in the adult entertainment industry, safe sex information, a dis- cussion of fetishes, or political links to other websites.”12
Legal definitions of child pornography, obscenity, and “harmful to minors” material are found in the appendix at the end of this chapter.
Q7 Do patrons have a right to unfiltered Internet access in private school libraries or other private libraries?
Usually not. Generally, private institutions may make restrictions with regard to information access. The First Amendment is a restraint on gov- ernmentalactions, not on private actions. There are exceptions, however.
In California, for example, the state constitution’s First Amendment is stronger than the corresponding amendment in the U.S. Constitution13 and its laws extend free speech guarantees to students in private schools.14 Q8 Does the ALA’s Library Bill of Rightsguarantee access for
library patrons in any type of library?
The ALA’s Library Bill of Rightsis a professional code of ethics that bol- sters access to all kinds of library materials for patrons, regardless of age.
It has no force of law in and of itself. However, it is often adopted by libraries’ governing authorities, giving children’s access rights the force of law in public entities, and can serve as a governing directive for private entities that adopt it. See the ALA’s Libraries & the Internet Toolkit site for further information.15
Q9 May parents put restrictions on their children’s access to the Internet at a public library?
The First Amendment does not hinder parents in any way from restricting their children’s access to information. The First Amendment restricts gov- ernment,e.g., a public library, from imposing restrictions. The CIPA dis- trict court has suggested (without evaluating their constitutionality) that policies that require parental approval are less restrictive than the CIPA law that required blocking software.16
If the constitutionality of such policies were to be evaluated, one ques- tion would likely concern how involved the government is in creating those restrictions. The difference between “opt-in” and “opt-out” alter- natives could be significant. If a library’s policy allows open access, but allows parents to “opt-in” a restriction for their child, that shows the parents are making the decision to restrict. If, on the other hand, a library’s policy defaults to restrictions on children, but allows parents to
“opt-out” of the restrictions by signing a permission slip, that evinces a far greater degree of government restriction. If parents are required to sign in person at the library, the burden becomes even greater, since many parents work full time or are otherwise not available, even if their intent is to secure open access for their children.
Types of Internet Access Restrictions
1.Restrictions on content. Public libraries and public academic libraries may not deny access to “inappropriate” or “offensive” sites, since those terms have no legal meaning under state, federal, or constitutional law as described above. Contrast this with most school libraries, in which mate- rials may be restricted to those that are deemed by the school board to be
“educationally suitable.”
2.Restrictions on games and chat.These are protocolrestrictions, not content restrictions per se. As such, they would likely be judged at a lower standard than content restrictions. Courts would likely use either an inter-
mediate scrutiny standard or a “rational review” standard—in either case, a court is likely to uphold such restrictions if uniformly and fairly applied.
3.Restrictions on conduct.These restrictions do not invoke the First Amendment. Rules of patron conduct while using the Internet are not free speech issues, and librarians should not hesitate to use rules of conduct similar to other conduct rules in place in the library. Note that only the conduct may be restricted. The mere tendency of certain Internet sites to encourage unlawful acts is insufficient reason for banning it. The proper method to deter harassment, masturbation, etc., is to remove the patron from the library, revoke library privileges, or call the police.17
Q10 Is it legal to have the librarian determine appropriate sites, e.g., use a “tap on the shoulder” policy?
It’s not clear. The library would need to come up with objective standards to define what is “inappropriate,” “sexually explicit,” or whatever term it chose. In addition to failing to match the legal categories of materials that may be prohibited (“child pornography,” “obscenity,” and “harmful to minors” material), this could raise the serious legal issue of “unbridled discretion in a government official.”
In the Mainstream Loudoun case, the federal district court looked at a library that had placed filters on all library computers. Its policy allowed patrons to request the library to unblock sites. Patrons had to submit written requests that included their names, telephone numbers, and detailed explanations of why they desired access to the blocked site. The library staff then would decide whether the request should be granted.18
The court noted that the unblocking policy amounted to a “standard- less discretion” by library staff. This imposed an unconstitutional chilling of the patrons’ rights to free speech. It cited the Supreme Court case Lamont v. Postmaster General, in which a federal statute directed the postmaster general not to deliver “communist propaganda” without a written request from the customer.19 The requirement that citizens pub- licly petition the government for access to disfavored speech was found to have a “severe chilling effect.”20In Loudoun, library patrons needed not only to petition, but to seek discretionary approval, unlike the automatic approval in Lamont.The court saw this as more chilling of the public’s right to free speech than the LamontSupreme Court case.
In 1992, the Supreme Court examined a case in which a county admin- istrator was empowered to determine how much to charge for parade permits, based on his own judgment of what would be reasonable to pay
for police protection and administrative costs. The Court determined that in the absence of objective factors, the First Amendment prohibited the
“vesting of such unbridled discretion in a government official.”21
The CIPA district court acknowledged that a “tap on the shoulder”
delegates to librarians substantial discretion to determine which websites a patron may view. It noted that this discretion was no less problematic when a library delegates the decisions to a filtering company. The court mentioned that one alternative for libraries that are experiencing problems would be to review Internet history log files, and then track down abuses to a particular patron. Taps on children’s shoulders when children are observed viewing material that is likely to be “harmful to minors” would be a less restrictive alternative to the use of filters. The constitutionality of such “taps” was not at issue in the case, however.
Q11 Do public school libraries have a different responsibility than public libraries?
Yes. Teachers have a different legal relationship with their students than public librarians have with their patrons. In the landmark Supreme Court case Board of Education v. Pico, students brought suit when the school board removed books that it characterized as “anti-American, anti- Christian, anti-[Semitic], and just plain filthy.”22 Schools serve in loco parentis, unlike public libraries, and courts allow greater latitude in school-issued restrictions on student speech than in other public institu- tions that do not serve “in place of the parent.” A plurality of the justices found that a school board must be permitted “to establish and apply their curriculum in such a way as to transmit community values,” but that it may not remove school library books in order to deny access to ideas with which it disagrees for political reasons. Instructively, a Picodictum 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.23