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