Updated: Washington Supreme Court, 6-3, Backs Library System's Full Filtering Policy

No disabling but willingness to unblock sites; case still in federal court

Norman Oder -- Library Journal, 05/06/2010

• Filtering is collection development
• First decision to back full filtering
• Dissent points to need for disabling
• Rural county
• State Librarian: it's about community needs, not free speech

(Updated May 7 with statement from Washington State Librarian Jan Walsh)

In a decision that may lead some libraries to adopt more stringent Internet filtering policies, the Supreme Court of Washington, in a 6-3 decision has agreed that a public library can filter Internet access for all patrons without disabling the filter on request of an adult library patron to allow access to websites with constitutionally protected material.

It is the first court to make such a ruling. The court essentially agreed that the decision to filter is a collection development decision rather than the removal of content acquired by the library, and that it's okay for the library to unblock sites on a case-by-case basis, perhaps taking more than a day to do so.

"The filtering policy, appears to us, as NCRL [North Central Regional Library] contends, to be a reasonable measure that sets minimal restrictions on Internet access so that the Internet is used by all of NCRL's patrons in a way that advances the duty of education and fulfills NCRL's mission and traditional role," the court majority said.

The three-judge dissent, however, pointed to the U.S. Supreme Court’s fractured 2003 ruling in the case challenging the Children’s Internet Protection Act (CIPA) and noted, "Thus, four United States Supreme Court justices stated explicitly and four other justices hinted strongly that content filtering in libraries is only constitutional if the filter can be removed at the request of an adult patron."

The case, known as Bradburn vs. North Central Regional Library District, was decided under state law. It now returns to federal court.

Reactions and predictions
"To my mind, it practically decides the case, although not procedurally," library attorney Tom Adams told LJ, noting that a federal court can apply the state Supreme Court's ruling to a pending motion for summary judgment.

North Central Regional Library District director Dean Marney called the decision "an affirmation for libraries, common sense, civility, and the appropriate use of public funds." 

"This case is about whether Sarah Bradburn can use the Internet to complete her school assignments and whether Pearl Cherrington, a professional photographer, can use the Internet to access galleries that want to view her work--activities that are protected by the Constitution," said Catherine Crump, staff attorney with the ACLU Speech, Privacy and Technology Project. We are disappointed that the majority failed to recognize that library filters that block adults from accessing constitutionally protected material are unlawful. The good news is that the decision only addresses the state law claims, and our clients can still vindicate their rights under the U.S. Constitution. This case is not over, and we are confident that  the damage will one day be reversed."

(The Seattle Post-Intelligencer summarized the decision under the headline State Supreme Court: Libraries can block Internet porn. Here is LJ's coverage of the June 23, 2009 oral argument; note that the Washington Library Association remained neutral on the case.)

Rural district
As the majority opinion in Bradburn noted, in 14 of the 26 school districts operating in NCRL, the branch libraries act as school libraries, with only one having a wall or partition separating the children's section. Of 28 total branches, 20 are staffed by one librarian at each site.

The library uses the FortiGuard filter to block much more than the obscenity, child pornography, and “harmful to minors” categories mandated by CIPA. It blocks websites in the following categories: Hacking; Proxy Avoidance; Phishing; Adult Materials; Gambling; Nudity and Risque; Pornography; Malware; Spyware; Image Search; Video Search; Spam URL. 

It initially blocked but subsequently unblocked YouTube, MySpace, and Craiglist (except the "personals" section).

Plaintiffs said they'd sought information on alcohol and drug-addiction topics, as well as an art gallery website and another containing health-related information. Only one plaintiff, Charles Heinlen, who was blocked from a personals site and MySpace, among other sites, requested disabling.

The Second Amendment Foundation was advised by a member that its publication Women and Guns was blocked, but the library had not previously received a report that the site was blocked and does not contend it should be blocked.

Overbroad?
While the plaintiffs, represented by the ACLU of Washington, called the policy overbroad and thus violative of the state constitution (which can, in some contexts be more protective than the federal one), the court noted that each side's experts made "vastly different statements about the degree of overblocking."

Speed of unblocking
The court noted that, of 92 unblocking requests, 27 were responded to in the same day, 29 the next day, 20 in three days, and five in a longer period. (There was no evidence about the other 11 requests.)

The court did not express an opinion regarding the delay, saying that the ability to request and obtain unblocking meant there was no overbreadth problem. The dissent, however, noted how some on the U.S. Supreme Court had cited the importance of speedy unblocking.

Presumably this might be a bigger deal at library in which a higher volume of requests took several days; the dissent pointed to decisions in the CIPA case regarding the ease of disabling the software.

As for blocking Google's image search, the majority opinion pointed out that there are image databases accessible via NCRL's home page and Google's main search engine.

Concurrence: Internet is limited resource
The majority opinion included five justices. Another justice concurred, saying the majority "overcomplicates the analysis."

The concurrence noted that 16 branches have only one or two computer terminals, and that "public libraries are necessarily empowered with discretion to make quality-based judgments on how to allocate their limited resources," and that collection decisions to allocate scarce resources are not subject to strict judicial scrutiny.

Dissent: alternatives not considered, Internet more like a book
Three justices dissented. While the dissent acknowledged that the vast majority of what is filtered "is low value speech," the library has not considered alternatives such as privacy screens or requiring librarians to enforce a code of conduct.

"There is simply no reason that withstands [the state constitution] to install a system to protect children that cannot be disabled by adults," the dissent states.

In contrast with the majority opinion, the dissent stated that "censoring material on the Internet is not the same thing as declining to purchase a particular book. It is more like refusing to circulate a book that is in the collection based on its content."

Reactions

“I know that the library community is divided over this issue and certainly as a veteran librarian I understand the points of view about unfettered access versus policies that protect our school children and others from pornography and other objectionable and potentially harmful material.  I believe this 6-3 Supreme Court ruling, and the federal ruling that we expect will follow, provides public libraries with permission to adopt a reasonable filter system if that fits the needs of their community. We support libraries listening to their patrons. If that value is to have no filter, then that’s fine.

“From the beginning, I felt the North Central Regional Library was being responsive to the values of their community. How can you argue with that?  They have 28 branches and serve as the de facto library service for 14 school districts in Chelan, Douglas, Ferry, Grant and Okanogan counties – an area larger than Connecticut, and they serve as de facto school libraries.   

“This is not a free speech issue, in my mind. It is about what your community needs. It is about the use of our taxpayers’ limited resources and our libraries’ limited resources.  

“We have filters on our Washington State Library computers. As today’s majority rules notes, public libraries have long enjoyed broad discretion to select materials for their collections, and it makes sense that the same discretion would apply to the vast amount of materials on the Internet."

State Librarian Jan Walsh said in a statement: