53 Fed. Comm. L.J. 191, *
Copyright (c) 2001
Federal Communications Law Journal
Federal Communications Law Journal
March, 2001
53 Fed. Comm. L.J. 191
ARTICLE: Filth, Filtering,
and the First Amendment: Ruminations on Public Libraries' Use of Internet
Filtering Software
Bernard W. Bell*
* Professor,
Rutgers Law School. The Author gratefully acknowledges the financial support of
the Dean's Research Fund of Rutgers School of Law - Newark and the research
assistance of Virginia Cora, class of 2002. An earlier version of this paper was
delivered as a speech to the New Jersey Library Association on April 26, 2000.
SUMMARY:
... The Internet has, in many ways, moved society closer to
the ideal Justice Brennan set forth so eloquently in Sullivan. ... In
particular, this Article will argue that conventional approaches to analyzing
the constitutional issues raised by public libraries' increasing use of Internet
filtering software are flawed, because they focus on the interests of speakers
rather than the interests of their audiences, and that the interests of
recipients of information are paramount in the public library setting. ... The
Loudoun court, asserting that government could not make content distinctions in
designated public fora, prohibited the library from using filtering software.
... Board of Education v. Pico, perhaps the Supreme Court case most directly
relevant to the constitutionality of public libraries' use of filtering
software, provides a prime illustration of the Court's sometimes fractured and
confused nature when assessing actions governments take in their proprietary
capacity. ... Certainly, some of the justifications for public library use of
filtering software relate to protecting children from sexually explicit and
other forms of speech that may harm a child's emotional and psychological
development. ... Decisions in Pico and the American Council of the Blind v.
Boorstin suggest that courts might be particularly reticent about upholding
politically inspired book-banning or use of Internet-filtering software. ...
TEXT:
[*191]
I. Introduction
When First Amendment lawyers wax eloquent
about freedom of [*192] speech, they
almost invariably turn to New York Times v. Sullivan, 1
a decision that unquestionably qualifies as a First Amendment icon. Sullivan
involved a defamation claim against the New York Times and several civil rights
leaders for an advertisement printed in the Times that condemned the conduct of
the Montgomery, Alabama police force. 2
When free speech devotees mention Sullivan, they almost invariably quote the
following passage from Justice Brennan's opinion for the Court:
We consider this case against the background of a
profound national commitment to the principle that debate on public issues
should be uninhibited, robust, and wide-open. 3
The Sullivan case dealt primarily with a mass media entity, the
New York Times, 4
and media organizations have been the most zealous guardians of Sullivan and its
progeny - virtually every major United States Supreme Court defamation case has
involved a media defendant. Discussions in the mass media, such as newspapers,
television, radio, and magazines, may reflect a somewhat diverse array of
perspectives, but most of these channels of communication are controlled by
sizeable organizations. 5
Size often leads to expression of conventional viewpoints, not the "uninhibited,
robust, and wide-open" debate celebrated in Sullivan. 6
[*193] The Internet has, in many
ways, moved society closer to the ideal Justice Brennan set forth so eloquently
in Sullivan. It has not only made debate on public issues more "uninhibited,
robust, and wide-open," but has similarly invigorated discussion of non-public
issues. By the same token, the Internet has empowered smaller entities and even
individuals, enabling them to widely disseminate their messages and, indeed,
reach audiences as broad as those of established media organizations.
7
For example, in April 2000, a wildly inaccurate summary of New York Mets
Manager Bobby Valentine's comments to a group of students at the Wharton School
was posted on the Internet by one of the students. The student, who adopted
"Brad34" as his Internet name, had no journalistic training nor work experience
for any news organization that would attempt to ensure the accuracy of his
material. Brad34's concededly "inventive" summary of Valentine's remarks caused
such controversy that the Mets General Manager flew to Pittsburgh to confront
Valentine regarding his alleged statements. Sportswriter George Vecsey
succinctly described the incident's denouement - "After four days, the Mets
sorted out this foray into the wonderful world of the Web, where anybody with a
mouse can be Matt Drudge." 8
A second example involved renowned fashion designer Tommy Hilfiger.
Internet postings "reported" two appearances of the designer. During the first,
an interview on CNN's Style With Elsa Klensch, Hilfiger allegedly asserted that
Asians did not look good in his clothes. During the second interview, which
reportedly took place on an episode of Oprah, [*194] Hilfiger allegedly made a similar comment
regarding African Americans. Though the reports were widely disseminated and
ultimately prompted a public denial by Hilfiger, it turned out that not only had
Hilfiger not made the comments, but he had never appeared on either show.
9
The very "uninhibited, robust, and wide-open" nature of the Internet
illustrated by the previous episodes, as well as others, 10
has provoked varied attempts to control speech on the Internet. Among such
efforts is the promotion of filtering software, 11
for use not just by private individuals, but by public libraries as well.
12
The demand for filters mostly stems from [*195] concerns about sexually explicit material,
13
even though filters have been developed for other uses, such as blocking sites
containing racially and ethnically derogatory speech. 14
The controversy swirling around the use of filtering software by public
libraries raises issues that, as this Article will argue, have yet to be
resolved satisfactorily.
In particular, this Article will argue that
conventional approaches to analyzing the constitutional issues raised by public
libraries' increasing use of Internet filtering software are flawed, because
they focus on the interests of speakers rather than the interests of their
audiences, and that the interests of recipients of information are paramount in
the public library setting. This Article suggests that libraries are the
preeminent audience forum, and that librarians should have limited power in
precluding Internet access to materials that satisfy their patrons' intellectual
interests. This Article contends, however, that libraries can place lesser value
on materials that are not primarily focused on intellectual enlightenment, such
as sexually explicit material directed toward the audience's prurient interests.
Finally, this Article asserts that the courts should consider procedural
protection of First Amendment freedoms in the public library context.
[*196]
II. The
Constitutional Context
A. Government's Dual Role as Regulator and
Proprietor 15
Under the conception of government held by the Framers of the
Constitution and the Bill of Rights, government primarily acted as regulator,
limiting citizens' conduct for the public good. 16
The founding generation assumed that citizens could live their lives largely
without government assistance. 17
Citizens primarily expected government to prevent others from interfering with
their pursuit of happiness. 18
The men who crafted the Constitution most feared government when it acted as
regulator of private citizens' conduct. 19
Since the framing of the Constitution and the Bill of Rights, the
federal and state governments have grown into Goliaths that the founding
generation could scarcely have envisioned. 20
As federal, state, and local [*197]
governments have expanded, so have the resources - money, property, and
employees - at their command. In 1789, government expenditures were miniscule.
21
Today, government expenditures comprise twenty-nine percent of the gross
domestic product. 22
Government allocation of resources and use of property have a much greater
impact on the lives of private citizens today than in our nation's formative
years. 23
Justice Oliver Wendell Holmes illustrated the early judicial reaction to
government wielding its resources in ways that affected citizens' constitutional
rights in a quip found in his short majority opinion for the Massachusetts
Supreme Judicial Court in McAuliffe v. Mayor of New Bedford. 24
McAuliffe, a police officer, had been discharged for engaging in political
activities during his off-duty hours. He claimed that by discharging him, the
city had infringed upon his right to free speech. Holmes's reply was succinct
and memorable: "A person may have a right to talk politics, but not to be a
police officer." 25
In other words, the First Amendment placed limits on government control over
conduct of private citizens who use their own private resources, but it
permitted the government to decide who it will employ and how it will use public
money and property. Indeed, as Holmes further observed: "There are a few
employments for hire in which the servant does not agree to suspend the
constitutional right of free speech as well as [the constitutional right] of
idleness by the implied terms of his contract." 26
The obvious problem with Holmes's approach quickly manifested itself
after government expanded in the first half of the twentieth century. Once
government largesse becomes important to citizens, the government can subvert
constitutional rights by conditioning distribution of that largesse on citizens
relinquishing those rights. For example, if a government adopts a policy of
making unannounced visits to the homes of [*198] public assistance recipients to verify their
continued eligibility for the program, those recipients' Fourth Amendment rights
become meaningless. 27
Aid recipients can protect their rights to prevent government officials from
entering their homes without a warrant or probable cause only at the expense of
refusing desperately needed aid. As more and more people become dependent on
various forms of government aid - through grants-in-aid, government programs,
government employment, and the like - the pressure placed upon the exercise of
rights increases. 28
The Supreme Court has not crafted a coherent approach for resolving the
issues that arise when government penalizes the exercise of constitutional
rights by the manner in which it distributes its resources. 29
The government should have the power to use its resources in ways that support
its objectives. If courts constrained the government's use of public resources
to the same extent that they limit governmental regulatory authority, government
could not operate. At times, the Court allows government to take actions in its
proprietary capacity that it would forbid the government from taking in its
regulatory capacity. 30
For example, the government can refuse to provide Medicaid funding for indigent
women who use it to pay for abortions, because the government operates in its
proprietary capacity in determining the way public funds can be used, and can
reserve its medical assistance funding for the potential recipients it
[*199] deems most worthy.
31
Government, however, may not prohibit women from using their own resources to
obtain abortions in the first trimester of pregnancy, because in doing so it
acts as a regulator, and thus infringes upon women's privacy rights as
established in Roe v. Wade. 32
Conversely, on some occasions, the Court invokes the "unconstitutional
conditions" doctrine, and refuses to accord government greater power when it is
acting in its proprietary capacity. 33
The Court asserts that government cannot condition provision of a benefit on
recipients' agreements to refrain from exercising their constitutional rights.
For example, a state may terminate an untenured college professor, but it may
not do so because of a disagreement with her political statements.
34
At other times, to put it simply, the Court is confused and fractured. The
question of public libraries' use of filters falls squarely in the middle of
this jurisprudential quagmire, in which the courts struggle with the question of
the Bill of Rights's application to governments' proprietary activities.
It is clear, especially after the Supreme Court's invalidation of the
Communications Decency Act of 1996 35
in Reno v. ACLU, 36
that the government can rarely prohibit private parties from posting material on
the Internet or prevent private individuals from accessing the Internet using
their own computers. 37
The First Amendment's commitment to "uninhibited, robust, and wide-open" debate
prohibits the government from restricting communications between private parties
on the Internet.
Public libraries, however, do not regulate private
individuals' use of their own resources, as Congress had attempted to do in the
Communications Decency Act. Rather, public libraries control government
resources, such as books purchased with government money and, more [*200] importantly, government-owned computer
terminals that allow users to access the Internet. A private individual could
exert dominion over his own computer terminal by placing a filter on that
terminal. Indeed, in Reno v. ACLU, the Court suggested just such a course of
action to parents concerned about sexually explicit material on the Internet. 38
The constitutional argument against the use of filters in public libraries may
appear weak; government is entitled, like any other property owner, to control
use of its own property. As Justice Holmes might say, a person may have a right
to see dirty photos, but he has no right to access them from a government
computer.
B. Forum Analysis
To address the use of
government property by citizens exercising their free speech rights, the Supreme
Court has developed distinctions among types of government property,
categorizing them as either traditional public, limited public, or non-public
fora. 39
Traditional public fora are government properties that have been dedicated to
speech "by long tradition or by government fiat." 40
Streets and parks provide the prime examples of such public fora.
41
Thus, though the government owns streets and parks, and can therefore
legitimately claim that it acts in a proprietary capacity when restricting
access to such public property, the courts have held that government must allow
the full range of speech protected by the First Amendment in those arenas. 42
The Court seems to rely heavily on the history of a site's openness to the
public in determining whether that site qualifies as a public forum.
43
The Court essentially requires the government to relinquish its
[*201] prerogatives as proprietor,
derived from its ownership of property, and limits it to regulating speech as if
the speaker using the government-owned property were not using government
resources at all. 44
It is hardly surprising, then, that few government properties exclusively
devoted to communications qualify as traditional public fora. Often, traditional
public fora are uniquely suited to provide a means of communication to the
general public. These public fora are in some sense monopolies - most speakers
have few alternative means to reach a large audience. Few effective, low-cost
alternatives to public demonstrations or public leafleting in streets and parks
are available to those who seek to reach a mass audience. 45
The need for effective, low-cost communication explains some states' expansion
of public forum doctrine to privately owned property. Thus, for instance, some
courts, such as the New Jersey Supreme Court, have accepted the argument that
their states' constitutions require private shopping centers to allow leafleting
in their facilities. 46
One major rationale underlying such decisions can be captured by paraphrasing
the popular, but apocryphal quip commonly attributed to bank robber Willie
Sutton. When asked why he robbed banks, Sutton allegedly responded, because
"that's where the money is." 47
Shopping centers must allow communication [*202] because that's where the people are.
48
In New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp.,
49
the New Jersey Supreme Court held that "where private ownership of property that
is the functional counterpart of the downtown business district has effectively
monopolized significant opportunities for free speech, the owners cannot
eradicate those opportunities by prohibiting it." 50
Limited public fora (sometimes referred to as "designated public fora")
are government-owned properties reserved for a limited set of communicative
purposes. 51
Thus, unlike traditional public fora, the government may, in its discretion,
close the forum. Government agency inter-office mail and public museums are
examples of such fora. 52
Designated public fora may be limited to discussion of particular subjects or
use by designated groups. While the courts will scrutinize content-based
limitations, "the necessities of confining a forum to the limited and legitimate
purposes for which it was created may justify the State in reserving it for ...
the discussion of certain topics." 53
For instance, in Rosenberger v. Rector & Visitors of the University
of Virginia, the Supreme Court suggested that a university could fund student
publications but exclude from the subsidy program any publication that addressed
the subject of religion. 54
Though the government may define the [*203] subject matter to be discussed in the forum,
courts will scrutinize the government's substantive description of the forum's
scope. The court will review exclusions from the forum to ensure that the
government applies its definition to the forum consistently. 55
It is not clear, however, whether a limited public forum may exclude a category
of speech, such as commercial speech, merely because the category of speech
enjoys diminished constitutional protection. 56
Non-public fora are government properties dedicated to non-communicative
uses, such as prisons and military bases, where government can exclude all
rallies, marches, leafleting, and the like. 57
Government must be free to reserve the property for the non-communicative uses
that the property has been designated to serve. This is true even though the
setting may provide uniquely effective means for reaching some segment of the
public. 58
Recently, even government fora dedicated to some communicative
activities have been classified as non-public fora where the government has not
affirmatively opened up the fora to general participation. For example, in
Cornelius v. NAACP Legal Defense and Education Fund, 59
the Court found that the Combined Federal Campaign, a program that allows
federal employees to make charitable contributions to select, listed
organizations, constituted a non-public forum. The Court explained that even
though the [*204] federal government
facilitated communication by some private groups, it did so by specific
invitation rather than a general invitation to all interested parties.
60
In none of the three types of fora - public, limited, and non-public -
can government engage in viewpoint discrimination. 61
That is, the government cannot limit speech on the basis of the viewpoint
expressed. For example, the government cannot allow Republicans to speak, but
not Democrats, or allow expression of pro-choice views on abortion, but not
pro-life views.
This tripartite forum analysis has been subjected to
cogent scholarly criticisms; 62
nevertheless, the Supreme Court has not abandoned it. Accordingly, courts and
commentators have used the Court's tripartite analysis to review public
libraries' powers to prevent their patrons from accessing certain Internet
sites. The major case addressing the issue of a public library's use of
filtering software, Mainstream Loudoun v. Board of Trustees, 63
relied upon just such an approach. Loudoun arose out of the Loudoun Public
Library's Board of Directors's order that the library staff install filters on
all of the library's computers so as to preclude patrons from accessing sexually
explicit Web sites. The District Judge categorized public libraries as limited
public fora, citing the Third Circuit opinion, Kreimer v. Bureau of Police, 64
involving a patron's right to enter a public library despite his habitually
offensive body odor. 65
The Loudoun court, asserting that government could not make content distinctions
in designated public fora, prohibited the library from using filtering software.
The Loudoun court did not, however, address the government's ability to limit
the subject matter of a designated public forum.
Public forum doctrine
might ultimately prove useful in analyzing public libraries' powers to employ
filtering software on their computers, but the doctrine cannot be applied to
public libraries in the conventional way. Conventional forum analysis focuses on
the interests of the speakers. 66
[*205] Groups that wish to disseminate
their views to their fellow citizens need parks, streets, and the like to reach
the general public at modest cost. 67
The audience for such demonstrations, on the other hand, might just as soon wish
to use parks and streets undisturbed. 68
Indeed, law enforcement officials have a constitutional obligation to protect a
speaker from a hostile crowd, even if the officers could keep the peace with
substantially less effort and risk by preventing the speaker from continuing.
69
Virtually every Supreme Court public forum case has been brought by speakers,
not those who seek to receive ideas. Even cases in which the Supreme Court has
ultimately characterized the government property as a designated public forum or
a non-public forum have been initiated by speakers, and the Court's analysis has
focused on the speakers' interests.
Public libraries, however, do not
primarily exist to assist those who wish to express their ideas; rather, public
libraries have been established to facilitate citizens' access to ideas.
70
The person most harmed when a library bans a book is not the author of the book,
but the library patron who wishes to read it. Thus, any complaint by a Web site
owner that his interests have been harmed because library blockage of his Web
site prevented him from communicating with patrons presents a fairly weak First
Amendment claim. The Web site owner's claim is surely much less substantial than
a patron's claim that her attempt to access the site has been frustrated.
[*206] For example, patrons of
the Loudoun Public Library had a much stronger First Amendment claim against the
library for using blocking software than did the Web site owners whose sites
were allegedly blocked by the filters. 71
Indeed, the Web site owners' position did not differ materially from that of the
charities complaining of the exclusion from the Combined Federal Campaign in
Cornelius. 72
Public libraries, like the Combined Federal Campaign, are non-public fora, at
least from the speaker's perspective. Librarians should be free to provide the
content they believe is in the best interest of their patrons without the
constraint of considering the interests of the creators of expressive materials.
The somewhat odd nature of the analysis in both Kreimer and AFSCME Local
2477 v. Billington, 73
a second case involving a patron's claim of a right of access to a government
library, stems from the failure to recognize that claims of people seeking
information might differ from those of speakers, and thus might require a
different analysis. In Kreimer, the court noted that the public library was the
quintessential locus for the exercise of the right to receive information,
suggesting a presumption that public libraries should qualify as traditional
public fora. 74
The court then retreated, deciding that the public library could not be
considered a traditional public forum because allowing library patrons to engage
in expressive activities, such as addressing their fellow patrons, would disrupt
the library. 75
Kreimer, however, did not wish to present a lecture to his fellow patrons; he
merely desired access to the quintessential place to receive information so that
he could read. The question was whether he could do so given his deleterious
hygiene. In AFSCME Local 2477, the [*207] court appeared to conclude that the Library
of Congress was a non-public forum because it was not open for expressive
activity. 76
Again, this conclusion would make sense if a patron wanted to use the library to
give a speech or distribute leaflets. If, however, a patron merely desires
access to obtain information, the sounder conclusion would be that the public
library is at least a limited public forum (and perhaps even a traditional
public forum for receiving information).
We must at least consider
whether the tripartite analysis the Court has employed when the concerns of
speakers predominate remains appropriate when the needs of audiences assume
paramount importance. The Supreme Court has recognized a citizen's interest in
receiving ideas as a right protected by the First Amendment, 77
but only in a few relatively unusual cases, 78
and often merely as a corollary to the rights of speakers. 79
As the Court has said on occasion, "The dissemination of ideas can accomplish
nothing if otherwise willing addressees are not free to receive and consider
them. It would be a barren marketplace of ideas that had only sellers and no
buyers." 80
This has led to the view that if no potential speaker has a First Amendment
right, then no potential listener can have a corresponding First Amendment
right. Justice Powell's dissent in Board of Education v. Pico 81
exemplifies this view. In Pico, the Court faced the question of whether a public
secondary school violated its students' rights when it removed certain books
from the school library. Justice Powell argued that student patrons of school
libraries could have no First Amendment right to prevent school authorities from
removing library books, because authors and publishers had no corresponding
First Amendment right to demand that books remain on school library shelves.
82
[*208] There is a place,
however, for a focus on citizens as listeners as well as speakers. As James
Madison eloquently observed, and the Court has sometimes acknowledged: "A
popular Government, without popular information, or the means of acquiring it,
is but a Prologue to a Farce or a Tragedy; or, perhaps both." 83
Indeed, on occasion, speakers and listeners might have somewhat incongruent
interests. With regard to regulation of the electromagnetic spectrum, for
example, the Supreme Court has recognized the potential conflict between
listeners and speakers, and declared the listener's interests paramount. The
Court has thus allowed the federal government to create and enforce obligations
on broadcasters that subordinate speakers' customary power to decide the content
of their speech to the public's broader need for "suitable access to social,
political, esthetic, moral, and other ideas and experiences." 84
Such conflicts between speakers and listeners are particularly likely to arise
when there is more than one speaker involved in the communication, as in the
library and broadcast situations. In such scenarios, a secondary speaker (like a
library) selects from among a group of primary speakers (like authors) who wish
to communicate with the secondary speaker's audience.
Thus, using
conventional public forum analysis in the library setting presents difficulty; a
"listener" perspective rather than a "speaker" perspective is required.
C. Prior Restraint
Another First Amendment doctrine that
some have utilized in analyzing the constitutionality of public libraries' use
of filtering software is the prohibition on prior restraints. 85
A legal requirement that speakers submit their expressive material to a
government official for approval before disseminating the materials to the
general public constitutes a prior restraint. The Defense Department's system
for reviewing correspondents' dispatches from combat zones provides one example
of such a system of prior restraint. 86
Since Near v. Minnesota 87
was decided in 1931, the courts [*209]
have also categorized judicial injunctions as prior restraints. 88
As the Supreme Court has observed on several occasions, a prior restraint is the
most serious and least tenable infringement on First Amendment rights. 89
Prior restraints are presumptively unconstitutional, 90
and, thus, almost never upheld. Courts have, however, permitted the use of prior
restraints to prohibit the distribution of obscene material, so long as the
procedures established by the government satisfy rigorous criteria.
91
In Loudoun, the court viewed the public library's use of filtering software as a
prior restraint and accordingly found the use of such software unconstitutional
(primarily because the manner in which the library used the filtering software
did not satisfy procedural guidelines that a system of prior restraints must
incorporate to be constitutional). 92
Traditionally, the courts have applied the prior restraint doctrine to
governmental regulatory actions. If the doctrine applies to actions governments
take in their proprietary capacities, it applies in a less rigorous manner.
Governments can often further the public good by using their resources to engage
in speech. If governments are either to communicate with citizens or effectively
operate government programs designed primarily to facilitate private citizens'
speech, government must have the power to consider content in selecting the
speech it will fund with public resources. For example, the government must have
the authority to determine the contents of government reports and publications.
Likewise, the federal government must possess the power to consider content in
deciding which among numerous competing proposals to support with grants from
the National Endowment for the Arts ("NEA"), and local governments must have the
power to consider content in selecting art for display in public museums.
[*210] The Supreme Court has at
most applied an extremely limited version of its prior restraint doctrine to
actions governments take in their proprietary capacity. Three cases - Alexander
v. United States, 93
Snepp v. United States, 94
and Gentile v. State Bar 95
- illustrate the Court's refusal to apply its conventional prohibitions on prior
restraint when the government acts in its proprietary capacity. In Alexander,
the federal government gained title to a bookstore and its contents pursuant to
the Racketeering Influenced and Corrupt Organization Act ("RICO"), 96
on the grounds that the owner had repeatedly used the store to sell obscene
books in violation of the applicable obscenity laws. Rather than selling the
books to some third party, the government destroyed the books, 97
including some that, while pornographic, were not obscene, and thus were
entitled to First Amendment protection. 98
To the majority, the question of whether the Constitution prohibited the
federal government's destruction of books once it had gained title to them did
not even warrant serious discussion. Chief Justice Rehnquist, for the majority,
observed off-handedly in a footnote: "Not wishing to go into the business of
selling pornographic materials - regardless of whether they were legally obscene
- the Government decided that it would be better to destroy the forfeited
expressive materials than sell them to members of the public." 99
The majority went on to hold that even the application of the civil RICO statute
to allow forfeiture of protected books because some of the books were not
protected did not qualify as a prior restraint. 100
The dissenters primarily expressed concern about the potential impact of such
government use of RICO upon free speech, expounding upon the First [*211] Amendment implication of allowing the
government to forfeit an entire bookstore because the owner knew that some of
his inventory was obscene. 101
Snepp v. United States 102
also illustrates the prior restraint doctrine's limited applicability when the
government acts as a proprietor controlling its own resources rather than as a
regulator seeking to control private entities' use of their own money. In Snepp,
the Court allowed the Central Intelligence Agency ("CIA") to establish a system
of prepublication review. 103
As a condition of employment, individuals joining the CIA must sign an agreement
requiring them to submit certain manuscripts they have authored to the CIA for
review prior to general publication. 104
In particular, any manuscript discussing the author's activities at the CIA
required clearance. 105
Not only did the Court uphold the CIA's system of prepublication review, it even
allowed the CIA to enforce the system by imposing a constructive trust upon any
profits earned on works authors had not submitted for clearance.
106
Indeed, the Court permitted the CIA to invoke the constructive trust remedy even
though the Agency conceded that the defendant's book did not reveal any
classified information. 107
The contrast with the Court's holding nine years earlier in New York
Times Co. v. United States (the "Pentagon Papers" case) 108
could hardly be sharper. The Court refused to enjoin the New York Times and the
Washington Post from publishing leaked classified defense documents, despite the
government's argument that publication of the documents would substantially
damage the United States's interests. 109
Because the [*212] government could not
demonstrate the type of immediate and serious harm resulting from publication of
the purloined documents that would justify imposing a prior restraint, the Court
denied the injunction. 110
The starkly contrasting results in Snepp and the Pentagon Papers case reflect
the difference in the government's role in the two cases. In Snepp, the
government acted as a proprietor, exercising its right to impose terms of
employment on its employees. In the Pentagon Papers case, the government
attempted to regulate the conduct of private entities - the New York Times and
the Washington Post.
The constraints that the Supreme Court has allowed
the federal and state judiciaries to impose upon lawyers, when contrasted with
the severe limitations the Court has placed on judicial efforts to control media
reporting about trials, also demonstrate that the prior restraint doctrine
either does not apply to the government in its proprietary capacity, or, at the
very least, applies much less rigorously. In Gentile v. State Bar,
111
the Court upheld restraints on the speech of defense attorneys, allowing the
Nevada Supreme Court to enforce a code of conduct proscribing attorney speech
that "has a substantial likelihood of materially prejudicing an adjudicative
proceeding." 112
By contrast, in Nebraska Press Association, 113
the Court prohibited entry of injunctions barring the press from publishing
matters that could prevent fair trials. Indeed, the Court suggested that
limiting the press's power to publish information regarding pending or potential
criminal litigation could rarely be justified. 114
The differences between the two cases reflect a broader pattern, in which the
treatment of various trial "participants" turns on the capacity in which the
government can exercise control over them. Courts and governmental entities can
impose the fewest restraints on the press, more restraints on defense attorneys,
and even more restraints on prosecutors, law enforcement officers, and court
personnel. Reporters, as private individuals over whom the government has no
authority in its proprietary capacity, generally enjoy immunity from prior
restraints, because the government's regulatory power to limit truthful speech
about crimes and trials is quite limited. 115
Prosecutors, on the other hand, are public officers over whom the government
unquestionably has authority in its proprietary capacity. Thus, the government
can restrict prosecutors' statements regarding pending or [*213] potential litigation, particularly statements
made while on the job. 116
Defense attorneys are subject to an intermediate range of limitations.
117
They are private citizens, yet at the same time they also have official
responsibilities, a status captured by the term "officer of the court." Thus,
the level of government control corresponds to the extent to which the
government exercises its proprietary rather than regulatory powers.
118
Public forum doctrine, however, alters the government's powers as a
proprietor to engage in prepublication review of speech. Though government can
claim that it acts in its proprietary capacity in regulating public property,
the designation of a piece of government property as a traditional public forum
strips the government of its proprietary powers to control the content of speech
in that forum (much as it does with respect to shopping center owners). Thus,
the prior restraint doctrine, which applies with full force to regulatory
actions, limits government exercise of content controls in public fora. For
example, the government may not review the content of speech or make content
determinations before approving permits for parades and demonstrations.
119
Moreover, the approval process is permissible only if clear noncommunicative
effects of speech will interfere with the noncommunicative uses of the
traditional public forum. 120
Assuming a public library might be characterized as a traditional public
forum, the need to view it as a forum for recipients of information instead of
speakers may have implications for prior restraint analysis. Prior restraint
doctrine would impose restrictions not on the governmental choice of materials,
as it would if it were a speaker forum, but instead on government review of
individuals' interests in obtaining materials. For [*214] instance, considerations similar to those
governing prior restraint doctrine would suggest that libraries may not require
users to seek permission on an individual basis to unblock certain Web sites or
establish a system in which library staff act as monitors empowered to order
patrons to desist if they begin viewing "inappropriate" sites. Many of the harms
of censorship regimes noted in Freedman v. Maryland 121
would exist in such circumstances. If libraries are fora that primarily function
as resources for individual citizens, such an approach is impermissible.
Thus, courts cannot facilely apply prior restraint doctrine to the
issues raised by public libraries' use of filtering software. Not only does this
difficulty have implications with regard to public libraries' ability to block
access to some Internet sites, it also has an impact on the procedures public
libraries can employ in carrying out their policies, as this Article discusses.
Moreover, to the extent that prior restraint doctrine does apply, an audience
perspective, rather than a speaker perspective, is appropriate.
D. Pico
Board of Education v. Pico, 122
perhaps the Supreme Court case most directly relevant to the constitutionality
of public libraries' use of filtering software, provides a prime illustration of
the Court's sometimes fractured and confused nature when assessing actions
governments take in their proprietary capacity. Pico involved school libraries
serving a public high school and junior high school in a Long Island, New York
school district. At the insistence of school board members, the libraries
removed eleven "dangerous" books from library shelves, including Slaughterhouse
Five by Kurt Vonnegut, Black Boy by Richard Wright, and Soul on Ice by Eldridge
Cleaver. 123
The Board's concern about the books stemmed from three boardmembers' attendance
at a conference sponsored by a politically conservative organization of parents.
124
At the meeting, the members obtained lists of books deemed "objectionable" or
"improper fare for school students." 125
A few months thereafter, the Board issued an unofficial directive to remove ten
of those books from library shelves and submit them to the Board for review.
126
When the Superintendent advised the Board that it had departed from established
procedures for considering whether books should be removed from library shelves,
the Board [*215] persisted.
127
Relenting somewhat at it its next meeting, however, the Board appointed an
advisory panel to read all of the books and determine their suitability for high
school students. 128
When the advisory committee concluded that many of the books should be retained,
the Board disregarded the committee's determination and ordered permanent
restrictions placed on all but one of the books. 129
The Supreme Court failed to produce a majority opinion, and thus the case
produced no holding that serves as binding precedent. Worse still, the case
resulted in six separate opinions. 130
The three-Justice plurality, acknowledging school authorities' power to remove
books on grounds of "educational suitability," held that educational authorities
could not remove books from school libraries merely because those books offended
authorities' views of "what shall be orthodox in politics, nationalism,
religion, or other matters of opinion." 131
The fact that the school was operating in its proprietary capacity when it
removed the books did not exempt it from First Amendment constraints, but
educators were nonetheless afforded substantial discretion based on their
educational judgment. 132
The plurality pointedly expressed concern that elected officials, not
professional educators, had made the decision to remove the books.
133
The four dissenters took up the mantra of Justice Holmes circa 1892,
arguing that the First Amendment simply did not constrain educators' decisions
about how they would use a school's resources, including its books.
134
They noted that students could gain access to such books by other means -
ironically mentioning public libraries as one source for such books.
135
The parallel between removing library books and installing filtering
[*216] systems on library computers is
obvious. When a library secures Internet access, it gains access to all Internet
sites. A filter removes some of the Web sites to which the library has a right
of access. 136
In effect, the library has acquired a set of materials and then refused to make
some of those materials available to its patrons. 137
Moreover, the role of the public library differs from that of the school
library in ways that make the former's filtering decision more difficult to
justify. First, as every Supreme Court Justice recognized in Pico, primary and
secondary schools exist, in part, to instill certain values in children.
Fulfilling that function requires educators' discretionary selections of content
with respect to books in the school library as well as with respect to
curriculum. 138
Public libraries do not seek to inculcate values in the same way.
139
Second, children form the dominant part of the audience in the school
library setting at issue in Pico, while patrons of public libraries include
large numbers of adults as well as children. Government may undoubtedly take
actions to shield children from sexually explicit material, even though it may
not seek to shield adults from the same material. Indeed, where audiences
include both children and adults, courts allow government to restrict speech in
ways that would ordinarily be prohibited if the speech only reached adults.
140
Certainly, some of the justifications for public library use of filtering
software relate to protecting children from sexually explicit and other forms of
speech that may harm a child's emotional and [*217] psychological development. 141
The problem of shielding children from inappropriate sexual material, however,
could be solved at least in larger public libraries by designating separate
terminals for children and adults. 142
Libraries could employ other methods to effect such a separation.
143
If separation is possible, maintaining filters on terminals accessible only to
adults could not be justified by the potential effects of the unfiltered
terminals on children. 144
Government may not restrict adults to the level of reading material fit for
children. 145
The response to this argument might be that librarians have always had
to decide which materials would be available to readers. Moreover, while the
Internet still requires librarians to fill that role, it has only substituted
one form of scarcity - limited acquisition budgets and spatial constraints - for
another form that is no less real - time at the available computers. That is, if
libraries do not have terminals to satisfy the demands of all who want to use
them, librarians will have to find some way to ration available computer time.
Thus, arguably, librarians retain the authority to decide which inquiries are
most worthwhile in order to prioritize the use of scarce computer time.
146
III. Public Libraries: A New Type of Forum
A. Dual Roles of
Government-Supported Speech
Government may act as a conventional
speaker, attempting to communicate a particular message in order to further a
government [*218] program. The
communication could provide largely factual information, such as safety
statistics regarding the airlines, 147
or could state an opinion, for example, that visitors to national parks should
not feed bears or that citizens should conserve energy. 148
Sometimes, however, the government funds expressive activity not to communicate
its own message, but to encourage citizens' self-expression. Programs such as
the NEA provide examples of the latter type of government program. Courts have
recognized this distinction in at least two contexts.
The Supreme Court
has distinguished government as speaker from government as facilitator in
considering governments' powers to make content judgments in allocating funding
for expressive activities. In Rosenberger v. Rector & Visitors of the
University of Virginia, the Court noted that when the government seeks to
communicate its own message by funding private speakers, it may impose
content-based limits on the private speech with government money and may make
content-based distinctions in deciding which private speakers to fund. 149
In other words, "when the government appropriates public funds to promote a
particular policy of its own it is entitled to say what it wishes."
150
The Court referred to its ruling in Rust v. Sullivan. 151
The program at issue in Rust, the Court observed, provided an example of
government use of private speakers to convey the government's message. The
Rosenberger majority explained that the Court had upheld the regulation at issue
in Rust v. Sullivan, prohibiting doctors from discussing the option of abortion,
because that regulation was part of a government effort to communicate its own
message. 152
The government was not seeking to facilitate the speech of medical personnel.
The means the government chooses to deliver its own message should not, said the
Court, limit the government's control over its message. 153
When government "expends funds to encourage a diversity of views from private
speakers," however, courts prohibit viewpoint discrimination and closely
scrutinize other content-based limitations on speech. 154
[*219] The distinction between
speaking and facilitating others' speech has a much longer tradition in the
defamation area. 155
Courts have traditionally distinguished publishers from distributors in setting
standards for defamation liability. 156
Publishers communicate their own ideas and can be held liable for the defamatory
nature of their assertions, even if they have merely repeated others' defamatory
statements. Distributors, such as bookstores, newsstands, and libraries, serve a
very different function. They make the expressive materials of others available
to the broader public. Moreover, given their role as a conduit connecting
publishers to readers, entities like bookstores, newsstands, and libraries
cannot reasonably be expected to ensure that a publication is not defamatory
before they offer it to the public. 157
Thus, courts have recognized that distributors deserve greater protection from
liability for defamation. 158
Indeed, Congress has by statute accorded online service providers complete
immunity from liability [*220] for
materials posted by others on their systems. 159
Such online service providers are a new type of distributor. This distinction
between government as speaker and government as facilitator can assist the
analysis of the status of public libraries.
B. Public Libraries' Roles
and Traditions
By establishing and maintaining public libraries,
the government acts as a facilitator of patrons in obtaining access to speech,
not as a speaker seeking to communicate its speech to library patrons. Courts
should view public libraries as places for wide-ranging inquiry that should make
available to the public the widest possible array of knowledge. 160
Public libraries are the archetypal institutions where citizens can access
information on the range of human endeavors. 161
Indeed, this has long been the mission of public libraries. The first libraries
in the colonies that would later become the United States were not public
libraries in the sense of being funded by the government, but were subscription
libraries that served as facilitators. In 1731, Benjamin Franklin founded the
first subscription library in the colonies, and, as he noted in his
autobiography, this library:
was the mother of all the
North American subscription libraries, now so numerous. It is become a great
thing itself, and continually increasing. These libraries have improved the
general conversation of the Americans, made the most 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. 162
Given the public library's role as facilitator rather than
channel for government speech, the government should not have the plenary
control over the material it makes available to patrons of a public library in
the same way that it may control fora in which the government seeks to
communicate its own message. In some ways, libraries are analogous to
[*221] universities as loci for
wide-ranging, free inquiry. 163
More generally, the role of libraries for listeners may be analogized to the
role of streets and parks for speakers. Libraries are the archetypal traditional
government-funded loci for acquiring knowledge, just as streets and parks are by
tradition archetypal government-funded loci for speaking. 164
If public libraries should be viewed as settings for wide-ranging inquiry, the
First Amendment should greatly restrain public libraries from blocking the
availability of Internet sites.
The recognition that public libraries
have a constitutional obligation to provide a forum for wide-ranging inquiry
should not, however, mean that librarians can exercise no discretion when making
public resources available. If the only permissible basis for imposing
restrictions were instrumentalist - reasons related to the harm that
unrestricted access would cause - libraries could advance few persuasive
justifications for installing blocking software on all Internet terminals.
Several instrumentalist reasons can be envisioned, including: (1) protecting
children from inappropriate materials; (2) preventing offense to other patrons
and library staff; (3) [*222] precluding
harmful secondary effects; and (4) enabling patrons to use the Internet more
efficiently.
As noted earlier, a library's interest in protecting
children from exposure to inappropriate materials probably provides the most
compelling instrumentalist justification for employing filters in a manner that
blocks children's access to sexually explicit sites. 165
If the library can restrict children's access to sexually explicit Internet
sites while allowing adults unfiltered access, however, the interest in
protecting children cannot justify installation of filters that limit every
patron's access to sexually explicit Internet sites. 166
A second instrumentalist argument contends that filters can prevent
Internet users from exposing library staff and other patrons to offensive
materials. Patrons may observe the content of a nearby computer screen and may
find that content offensive. Library officials could arrange the physical layout
of the library and placement of computers so that the computer screens are not
visible to other patrons. Alternatively, libraries could install privacy
screens, which preclude everyone but the user from seeing a computer screen.
167
Such efforts probably constitute an adequate response to the concern about
patrons' unwanted exposure to images being viewed by their fellow patrons.
168
Library employees' concern about unwanted exposure to sexually explicit
Web sites might, in some ways, present a more difficult problem. A patron using
the Internet might seek the assistance of a librarian, and the librarian, in
rendering such assistance, might have to view a screen that contains offensive,
sexually explicit material. The patron who requests assistance might or might
not intend to cause the librarian offense. Ultimately, however, even the library
staff problem does not justify installing filters on library computers. First,
any patron who places a sexually explicit image on the screen that would offend
most people and then calls a librarian over to assist him for the purpose of
offending the [*223] librarian may be
disciplined for intentionally causing distress to the library staff. Second, the
library could institute a rule that patrons must blank out the screen or go to a
screen without images before the library staff will assist them. Ultimately,
however, if none of these approaches fully ensures that library staff will not
find themselves confronted with offensive images, patrons' ability to examine
Web sites of their choice should take precedence over the desire to spare
library staff from suffering offense. Such potential exposure to offensive
material should be viewed as an unavoidable aspect of the librarian's job. 169
The Supreme Court's doctrine upholding zoning restrictions on sexually
explicit commercial enterprises suggests a potential third instrumentalist
argument in support of installing Internet filters. The Supreme Court has held
that a local government may regulate speech, especially sexually explicit
speech, to combat the speech's secondary effects. 170
Thus, the Court has allowed localities to use zoning laws to control the
location of businesses that offer sexually explicit materials because such
businesses tend to have negative effects on the surrounding neighborhoods -
effects which include increasing crime, producing blight, and reducing property
values. 171
Librarians might reasonably fear that the availability of Internet
pornography could change the character of the library. Instead of a place
visited by a broad cross-section of the community, the library might become a
publicly funded "peep show" for those interested in sexually explicit material.
Indeed, people uninterested in sexually explicit material might come to view the
library as a place to be avoided, just as a wide segment of the public avoids
the "red-light" districts that exist in many cities. In short, if sexually
explicit materials can be accessed at a public library, the library's clientele
might change in undesirable ways.
A secondary effects argument in the
library context, however, seems strained. A public library might find it
difficult to demonstrate that making sexually explicit material available to
patrons will either produce criminal activity in or around the library or
adversely affect the library's aesthetic [*224] qualities. 172
Moreover, the library can presumably address any concrete harms by implementing
specific rules directed at those harms. More fundamentally, a secondary effects
argument based on concern about the exodus of patrons offended by the
availability of sexually explicit materials in the library parallels secondary
effects arguments that the Supreme Court has rejected in the past.
173
In Boos v. Barry, 174
the Supreme Court overturned a decision upholding a District of Columbia
ordinance that prevented the display of signs "bringing a foreign government
into public odium or public disrepute" within 500 feet of foreign embassies. 175
The District of Columbia Circuit had upheld the ordinance using the secondary
effects rationale. 176
The Supreme Court explained, however, that its secondary effects doctrine could
not justify the ordinance because the reactions of people to speech and the
emotive impact of speech on audiences cannot be considered secondary effects of
speech. 177
Boos suggests that a secondary effects argument would be rejected in the public
library context. In particular, any exodus from the library as a result of the
availability of sexually explicit material via the Internet would ultimately
result from the reactions of some patrons to communications between Web site
owners and willing library patrons. 178
As a fourth instrumentalist justification, libraries could assert that
Internet filters may further public libraries' mission of helping the readers
[*225] negotiate a vast array of
materials on subjects that vary greatly in quality. 179
Librarians have traditionally assisted patrons in negotiating a wealth of
materials on various subjects. Some have suggested that this function will
become more, not less, critical with the Internet's arrival. 180
There is little reason, however, to prevent those who wish to access the
Internet without filters from doing so if filters are justified only as a means
for assisting patrons in winnowing material.
A public library should not
be restricted to such instrumentalist justifications for employing filtering
software. Even public librarians should possess the authority to prefer speech
regarding intellectual inquiry to sexually explicit speech because of their
conception of the library as a forum, regardless of whether librarians can point
to any concrete injury that would result from reconceptualizing the library's
mission. Libraries engage in a wide range of activities. Sexually explicit
materials may differ from traditional library materials in a way that should
simply allow librarians to prefer traditional materials. Historically, libraries
have been viewed as places that offer material to provide intellectual
stimulation and enlightenment, although this view may contain some elements of
myth. Certainly, contemporary public libraries contain materials other than
those dedicated to intellectual inquiry. Libraries seek to provide entertainment
by offering materials embodying popular culture, such as videotapes of popular
movies and romance novels - materials not necessarily intended to enlighten or
stimulate the intellect. 181
Indeed, some have suggested that libraries' efforts to cater to popular tastes
undermine the vital role of libraries in a democracy. 182
That debate need not be resolved to conclude that libraries should be allowed to
prefer intellectual inquiries to the satisfaction of other patron interests.
Librarians should have the discretion to decide that the library is
committed to intellectual inquiry, not to the satisfaction of the full range of
human desires. 183
They should also have the authority to decide that scarce [*226] computer resources should be devoted to
intellectual inquiry rather than the pursuit of entertainment. Thus, a librarian
can decide that he wishes to reserve Internet terminals for intellectual
inquiry, rather than for engaging in electronic communication with other
individuals, shopping, playing computer games, or satisfying prurient interests.
Libraries should be able to limit recreational uses as a symbolic
matter, without showing any kind of nonspeech danger the library seeks to avoid.
With regard to recreational materials, public libraries should have the power to
limit such material simply because that is the way in which the polity wishes to
define the forum, much like the federal government could decide, in Alexander,
that it did not wish to sell sexually explicit material that had been forfeited
to the federal government, or, as in General Media, that it would not sell
sexually explicit material in military post-exchanges. 184
Libraries should be required to treat all materials for intellectual inquiry
equally (at least in terms of allowing patrons to access such materials on the
Internet), but be permitted to treat some or all categories of recreational
material less favorably by precluding patrons from using valuable computer time
to engage in such recreational pursuits.
Within the sphere of material
that provides knowledge or intellectual stimulation, public libraries should be
required to justify limitations on the range of inquiry. Thus, unlike designated
public fora, where the government can set the substantive bounds of the debate,
185
public libraries should presumptively be open to all intellectual inquiries.
Because libraries are the archetypal fora for listeners, library patrons should
have access to any speech protected by the First Amendment, just as speakers can
access streets or parks to engage in any expressive activity protected by the
First Amendment. Such a presumption is consistent with the history of public
libraries in this country.
Moreover, perhaps counterintuitively, courts
should take a much more jaundiced view of library policies that block Internet
access to a very limited array of subjects than they take of library policies
that reserve Internet terminals for very limited use. Intuitively, the fewer
restrictions on the intellectual inquiries that can be pursued by use of the
Internet-accessible terminals, the better. For example, a policy that allows
access to everything except sites devoted to discussion of religious doctrine
may seem much less objectionable than a policy that reserves Internet-accessible
terminals to those who wish to access government information.
[*227] The more widespread the
limitation on Internet use in public libraries, however, the more likely that
political processes will ensure that the limitations on such use are no broader
than necessary. In particular, in the second situation posited above (in which
Internet-accessible terminals could be used only to access government Web
sites), a large portion of the general public is treated unfavorably with
respect to the subjects they wish to explore by way of the Internet. Thus, it
will take a strong justification for the library to maintain a severely
restrictive policy governing use of Internet-accessible computers because of the
wide scope of unfavorable treatment. On the other hand, if patrons can explore
all of the subjects that they wish to explore by Internet-accessible terminals,
and only a small segment of the public is denied use of the Internet terminals
for their preferred inquiries, political pressure from such a small segment of
patrons will likely have less effect.
Indeed, the Supreme Court has
noted in several contexts that requiring the general application of rules
intended to apply only to small segments of the populace provides a particularly
practical and effective method of discouraging arbitrary and unreasonable
restrictions on political minorities. 186
Supreme Court doctrine regarding taxation of the news media reflects just such
an approach. The Court has held that the news media may be subjected to taxes
applicable to business enterprises in general, but that states may not tax media
entities more heavily than other business entities, nor may states single out a
small segment of the media for heavier taxation than the remainder of the media.
187
Yet, at the same time, the Court has permitted states to accord especially
favorable treatment to a small segment of the media by exempting that segment
from a general tax paid by most businesses, including many other media entities.
188
Allowing favorable treatment of only a small segment of the media resembles a
library's policy [*228] of providing a
very limited range of access to the Internet. In both circumstances, a limited
range of speech interests are favored, and such favoritism is not troubling
because of the political constraints on such favoritism. 189
IV. Who Decides and How?: Professionalism, Insulation, Delegation, and
Process
Government may further constitutional principles not only
through the application of substantive doctrines, such as the listener-focused
"public forum" doctrine, but by structural and procedural requirements limiting
the manner in which government adopts actions that have implications for
constitutional rights. 190
This section of the Article explores structural and procedural constraints that
courts might consider placing upon libraries that seek to employ filtering
software on their computers. The question of the authority to determine which
sites warrant blocking merits analysis. The contours of the process by which a
patron can seek to unblock a site also merit attention.
Any government
effort to limit undesirable speech will likely produce at least one of two
consequences. First, the government may inadvertently prohibit some speech that
does not actually bear the relevant deleterious characteristics. Second, in an
effort to make more refined judgments that reduce the blockage of appropriate
speech, the government may rely on discretionary, case-by-case judgments to
distinguish permissible from impermissible speech. Such judgments carry the risk
of inconsistent or potentially biased decisionmaking. Often the government's
effort to limit speech will suffer from both of the above maladies. Such
problems may become magnified in the filtering context because of imperfections
in current filtering software. Filters will invariably be overinclusive; they
will block some sites that do not produce the relevant harms. 191
For instance, filters designed to block only pornographic sites also block
numerous sites that in no way appeal to the prurient interest. If the standards
for blocking [*229] sites are narrowly
tailored so that few sites are erroneously blocked, the software also will
likely permit access to many sexually explicit sites that the library seeks to
block. In short, any filtering program designed to block sexually explicit sites
will almost certainly prove substantially underinclusive or overinclusive. At
the same time, many filtering programs involve blocking sites on the basis of
some person's or group's determination that the sites are inappropriate. This,
of course, means that highly fact-specific determinations are made on a
case-by-case basis - determinations subject to significant hidden biases.
Someone must make substantive decisions about the contents of the public
library. At first glance, it may appear that librarians would determine the
sites that will be filtered out and set the standards for making such
determinations. The locus of decisionmaking power is somewhat more diffuse, and
identifying the true locus of decisionmaking power requires consideration of the
role of filtering software providers, as well as the elected officials to whom
the head librarians report.
Currently, software providers play a large
role in deciding which sites patrons may not access using libraries' computers.
Almost invariably, private entities make the decisions regarding the methodology
used to determine which sites are blocked because they create and design the
blocking software. 192
Moreover, such companies often express hesitancy about divulging the
methodologies that they have incorporated into the software, or even divulging
the particular sites that their software packages block. 193
Library officials make the initial decision to purchase a particular filtering
software from among competing products and could decide to change software at
any time. Otherwise, the specific blocking decisions are made by software
producers, not library staff, unless library officials retain the power to
unblock sites by overriding the filtering software.
Frequently, library
officials' decisions regarding filtering software reflect pressure from another
source, namely the influence of elected officials expressing either their own
concerns or those of their constituents regarding the materials available in
publicly funded libraries. It is noteworthy that decisionmaking by elected
officials, rather than unelected librarians, troubled the Pico plurality. 194
More generally, much of the pressure to remove books, use filters, or prohibit
art exhibitions comes not [*230] from
professional librarian-curators, but from elected officials seeking to ensure
that government resources do not support expressive materials that conflict with
community values (or at least the official's conception of those community
values). Thus, the pressure for filters in the Loudoun and Boston Public
Libraries - the settings of two celebrated filtering controversies - came not
from librarians, but from elected officials. 195
The pressure to limit the use of other government-owned computers also
originates from elected officials, not lower-level administrators. Thus, the
limitation on computer use by university faculty in Oklahoma and the statewide
restriction on use of computers by government employees in Virginia began with
pressure from elected leaders. 196
The conflict between Mayor Rudolph W. Giuliani and the curators of the Brooklyn
Museum with regard to the "Sensations" exhibit provides another dramatic example
outside of the library context. 197
Similarly, the attacks on the exhibition of Robert Mapplethorpe's works and the
NEA's financial support for such exhibitions came largely from elected
officials, rather than professional artists and museum curators.
198
Two values compete for dominance in this and other First Amendment
contests: insulation and political accountability. Sometimes the normal
political process will produce unsound decisions, either because public
officials refuse to pursue the public interest rather than their own divergent
electoral interests, or because popular majorities prove insensitive to
important interests. Insulating decisionmaking from the influence of elected
officials can diminish this democratic pathology. The majority's tendency to
undervalue the rights of minorities suggests one reason to adopt such an
approach; the electorate establishes governmental institutions to protect those
rights. The most obvious example of such an institution is the federal
judiciary, which the Constitution insulates from political pressure by granting
judges life tenure and salary protection, so judges may determine the rights of
private citizens without being influenced either by the interests of elected
officials or majoritarian concerns. 199
Similarly, by statute and custom, law enforcement officials [*231] enjoy considerable insulation from elected
officials on both a national and state level. Such insulation frustrates
attempts to use law enforcement processes, which have a significant effect upon
the lives of individuals, for political purposes, and limits the effect of
public passions upon the exercise of law enforcement discretion.
200
Professor Mark G. Yudof has made the argument that government speech
should receive some insulation. He argues that giving teachers greater
independence than other government employees, by granting them tenure, ensures
that government's power to indoctrinate primary and secondary school students
cannot be used for political gain. 201
Courts will almost certainly refuse to compel the political branches of
government to insulate library professionals so that those professionals may
make their decisions regarding public libraries' filtering software absent
political pressure. Courts, however, could adopt the less dramatic approach of
according special deference to the decisions of library professionals while
viewing with skepticism those decisions reflecting exertion of political
pressure on library professionals. Indeed, the Court, in a somewhat oblique
fashion, has on at least one occasion noted that the importance of colleges and
universities in ensuring wide diffusion of knowledge depends on the relative
autonomy the faculties have in making hiring and tenure decisions.
202
Moreover, scholars have suggested that recent First Amendment cases involving
government-funded speech may reflect a view that insulated decisions merit more
deference, and many applaud this [*232]
trend. 203
In the public library context, this would suggest that courts focus on whether
elected officials or patrons have exerted political influence, rather than
whether a librarian has properly exercised discretion, and on whether the
library has established and followed routine procedures for identifying sites
that patrons cannot access. Decisions in Pico and the American Council of the
Blind v. Boorstin 204
suggest that courts might be particularly reticent about upholding politically
inspired book-banning or use of Internet-filtering software.
Delegating
filtering decisions to private software providers arguably increases the
insulation of those decisions from elected officials. 205
Delegations of government power to private individuals, however, may be
problematic. 206
Courts have noted that the federal Constitution and many [*233] state constitutions may limit delegations of
governmental power to private entities, 207
even though several scholars have argued, to the contrary, that both federal and
state governments regularly delegate power to private entities without any
constitutional challenge. 208
Indeed, the federal government has delegated substantial decisionmaking
authority to private entities regarding one important public resource - the
electromagnetic spectrum. 209
The authority granted to broadcasters is particularly striking because the First
Amendment insulates broadcasters from government pressure to a certain extent.
In this way, broadcasters act as private entities exercising both free speech
rights and power over public property delegated to them by the federal
government. 210
Political accountability lives in tension with insulation as a means for
furthering constitutional values. Sometimes political accountability and public
pressure may well enhance liberty. For example, the Supreme Court relies on the
political process to constrain taxation of mass media outlets in a way the
judiciary would find difficult to do directly. The Court merely requires that
any tax applicable to the media apply broadly to nonmedia entities as well.
211
The Court presumes that broadly applicable taxes are unlikely to impose
unnecessarily harsh burdens because the large segments of the public to whom the
tax applies will exert political pressure to keep such taxes to a reasonable
level. 212
A similar principle can be discerned in the jurisprudence regarding media access
to official proceedings and governmental institutions. The primary protection
springs not from a substantive doctrine under which courts identify the specific
proceedings [*234] and institutions open
to the press, but rather a requirement that the government treat the press no
worse than it would treat the general public. The courts then rely upon the
political process to ensure that government carefully considers limiting
citizens' rights to gain access to proceedings and institutions. 213
One legitimate criticism of the ethos of noninterference with law
enforcement rests on the argument that majoritarian influence can, in some
instances, enhance liberty. 214
As long as the electorate seeks to exert influence at the level of broad
policies rather than particular situations, the majoritarian process may have a
constraining effect on law enforcement. For example, some of the limitations on
police officers' authority to engage in intrusive and harmful activities that
threaten citizen's life and liberty, such as the use of life-threatening force,
the high-speed pursuit of lawbreakers, and the conduct of strip searches when
arrestees are placed in detention facilities, have resulted, at least in part,
from political pressure. 215
At times, the Court may require elected officials to make certain
decisions because those officials will likely prove more protective of rights
than the appointed officials to whom the elected officials have delegated
decisionmaking power. For example, in Hampton v. Mow Sung Wong, 216
several resident aliens challenged a regulation barring noncitizens from federal
government employment, asserting that the regulation violated the Equal
Protection and Due Process Clauses. The Court acknowledged that the federal
government's power over aliens is "subject only to narrow judicial review," 217
because of "the political character of the power over immigration and
naturalization." 218
The Court also acknowledged that the Civil Service Commission "has identified
several interests which the Congress or the President might deem sufficient to
justify the exclusion of non-citizens from the federal service." 219
Nevertheless, the Court invalidated the provision, reasoning that only Congress
or the President could invoke the interests justifying such an exclusion from
employment, [*235] and that the Civil
Service Commission could point to no congressional or presidential consideration
of the issue. 220
Moreover, the Civil Service Commission's responsibilities did not include the
type of foreign affairs and naturalization concerns that could justify such a
limitation on employment. 221
The Court concluded that:
since these residents were
admitted as a result of decisions made by the Congress and the President,
implemented by the Immigration and Naturalization Service acting under the
Attorney General of the United States, due process requires that the decision to
impose the deprivation of an important liberty interest [in potential federal
employment] be made at a comparable level of government or, if it is to be
permitted to be made by the Civil Service Commission, that it be justified by
reasons which are properly the concern of the agency. 222
Thus, in an area where substantive constitutional doctrines
provided little vindication of constitutional principles 223
(because the issues involved political questions dedicated to other branches of
government), the Court encouraged adherence to those principles by requiring
Congress and the President to explicitly consider the need to contravene those
principles. Similarly, the Supreme Court views federal agencies' preemption of
state law much more skeptically than congressional preemption of state law.
224
Some commentators and jurists have long held the view that the primary
protections of state authority lie not in substantive constitutional law, but in
the political protections provided by virtue of Congress's composition.
225
Indeed, prior to recent efforts to reinvigorate substantive constitutional
limits on congressional power vis-a-vis the states, much of the Supreme
[*236] Court's approach to federal-state
relations consisted of ensuring that the states' political protections worked
effectively by requiring Congress to address federalism issues in a highly
visible manner. 226
Agency structure and composition would appear to provide states with
substantially less political protection. Courts' reluctance to grant agencies
broad authority to interpret statutes in ways that mandate or allow preemption
of state law could in part be attributed to a judicial concern that agencies
bear much less accountability to states than Congress (and, thus, that the scope
of preemption will be far more constrained if Congress must explicitly provide
for preemption than if agencies can construe ambiguous statutes as preemptive).
227
This principle would suggest a limitation on delegation of authority to
private entities. The kinds of political constraints that cabin public
officials' actions do not similarly constrain actions by private entities.
Moreover, private entities may use public resources for their own private
purposes, 228
and inhibit speech in ways that serve those private purposes, thus posing no
less of a threat to First Amendment values than do public actors. Overall, it
seems most likely that courts' encouragement of librarians to make decisions
about blocked sites will protect libraries' ability to accommodate wide-ranging
inquiry. Courts provide such encouragement by giving librarians' judgments
greater deference when there is no evidence of political or patron pressure and
by requiring libraries to learn filtering software providers' methodology for
determining which sites to block. Courts could also require public libraries to
retain the power to unblock sites by overriding the filtering software
altogether. 229
[*237] Another procedural issue
arises primarily because of the fallibility of filters. The First Amendment
might grant some leeway to a public library in blocking sites that do not pose
the relevant problems, but there must be some way in which patrons can learn
which sites are blocked and contest the legitimacy of the blocking. Part of the
"delegation" problem, a lack of public accountability, stems from the fact that
allowing a library to purchase blocking software without securing the power to
remove the block threatens to prevent a patron from getting inappropriate blocks
removed.
A private software provider's decision to design its product to
block certain sites may not constitute state action, constrained by the demands
of the First Amendment. Moreover, a software provider is not necessarily focused
on First Amendment concerns, because households, as well as public libraries,
use such software. Heads of households are not subjected to the same First
Amendment analysis as public libraries. The courts could hold that blocking
decisions should be considered governmental decisions constrained by the First
Amendment even when they are made for a public library by private software
providers, and thus allow patrons to contest the software provider's blocking
decisions. The courts, however, would then be in the business of addressing
questions of the correctness of blocking decisions in the first instance.
Requiring libraries to learn the methodologies underlying filtering software and
to determine the validity of specific blocking reduces judicial involvement,
and, at the same time, places such determinations in the hands of those who can
reasonably be expected to make sound decisions.
V. Conclusion
Constitutional constraints on public libraries' installation of Internet
filtering software confronts the courts yet again with a dilemma that has long
bedeviled the federal judiciary - the precise contours of government power when
the government affects popular behavior by the manner in which it expends
resources. The traditional approach to resolving this issue, at least with
regard to speech on government property, must be reevaluated in the context of
public libraries. Libraries represent a unique type of forum heretofore
unrecognized by the courts. They are a forum for the receipt of information, not
for speaking. Courts must recognize the constitutional implications of this
difference, and only when they do so can they properly address the issues raised
by Internet access in public libraries.
FOOTNOTES:
n1.
376 U.S. 254 (1964).
n2.
Id. at 256-59.
n3.
Id. at 270. Perhaps a precursor to this statement was the earlier observation
that "it has long been a basic tenet of national communications policy that "the
widest possible dissemination of information from diverse and antagonistic
sources is essential to the welfare of the public.'" Turner Broad. Sys., Inc. v.
FCC, 512 U.S. 622, 633 (1994) (quoting U.S. v. Midwest Video Corp., 406 U.S.
649, 668 n.27 (1972) (quoting Associated Press v. U.S., 326 U.S. 1, 20 (1945))).
See Yochai Benkler, From Consumers to Users: Shifting the Deeper Structures of
Regulation Toward Sustainable Commons and User Access, 52 Fed. Comm. L.J. 561,
563, 565 (2000) (highlighting the Supreme Court's statement in Associated
Press).
n4.
There were non-media defendants involved in Sullivan, though they were only
defendants because they had placed an advertisement in the New York Times. Of
course, the case had implications for non-media entities and individuals even
when they did not utilize the mass media. See Bernard W. Bell, Byron R. White,
Kennedy Justice, 51 Stan. L. Rev. 1373, 1405 (1999).
n5.
Patricia Aufderheide, Communications Policy and the Public Interest 88-94
(1999); Benkler, supra note 3, at 564-65; David Waterman, CBS-Viacom and the
Effects of Media Mergers: An Economic Perspective, 52 Fed. Comm. L.J. 531,
540-42 (2000); Paul Wellstone, Growing Media Consolidation Must Be Examined to
Preserve Our Democracy, 52 Fed. Comm. L.J. 551, 552 (2000) ("Today fewer than
ten multinational media conglomerates - Time/Warner, Disney, Rupert Murdoch's
NewsCorp, Viacom, Sony, Seagram, AT&T/Liberty Media, Bertelsmann, and GE -
dominate most of the American mass media landscape.").
n6.
See Aufderheide, supra note 5, at 94; Ben H. Bagdikian, The Media Monopoly 37,
39, 41-43, 46-47, 103, 226 (1983); Benkler, supra note 3, at 564-65, 576. At
least one scholar has theorized that a more concentrated broadcast market might
provide greater programming diversity than would a more disaggregated industry.
Peter O. Steiner, Program Patterns and Preferences, and the Workability of
Competition in Radio Broadcasting, 66 Q.J. Econ. 194 (1952); Thomas G.
Krattenmaker, Telecommunications Law and Policy 88-91 (2d ed. 1998).
n7.
Reno v. ACLU, 521 U.S. 844, 870 (1997) (stating that "through the use of chat
rooms, any person with a phone line can become a town crier with a voice that
resonates farther than it could from any soapbox. Through the use of Web pages,
mail exploders, and newsgroups, the same individual can become a pamphleteer.");
Stephen C. Jacques, Comment, Reno v. ACLU: Insulating the Internet, the First
Amendment, and the Marketplace of Ideas, 46 Am. U. L. Rev. 1945, 1989 (1997)
(internal citations omitted) (observing that "the Internet, however, breaks down
these barriers, offering an egalitarian form of communication where the cost is
little or nothing and an opinion is instantaneously distributed worldwide. In
many ways, the Internet embodies the essences of democracy: equal
participation."); Amy Harmon, Ideas & Trends: Anarchic E-Commerce: Online
Davids vs. Corporate Goliaths, N.Y. Times, Aug. 6, 2000, 4, at 1 (discussing
individuals' ability to "upset the status quo" with copyrights); but see Los
Angeles Times v. Free Republic, No. CV 98-7840, 2000 U.S. Dist. LEXIS 5669, at 1
(C.D. Cal. Sept. 28, 1998) (granting summary judgment for plaintiffs, stating
that defendant's fair use defense would not apply to its copying of news
articles onto its Web site).
n8.
George Vecsey, Sports of The Times: Can a Fish Bring Peace to Metland?, N.Y.
Times, Apr. 19, 2000, at D1; see also Tyler Kepner, Valentine's Comments Prompt
a Visit From Phillips, N.Y. Times, Apr. 15, 2000, at D1.
n9.
Designer Hilfiger Disputes Net Rumors of Racism, USA Today, Feb. 28, 1999,
ava