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Free Expression

Library Filtering Rears its Head… And it’s Ugly Again

CDT and the Electronic Frontier Foundation filed a "friend of the court" brief late last week in a case in Washington State challenging a refusal by a local library system to "unblock" or remove content filtering software that blocks library users' access to lawful Internet websites. We argued that the refusal to unblock violates the First Amendment, as well as a key U.S. Supreme Court decision. We also explained in detail that Internet access in libraries is particularly important in the rural communities at issue in the Washington case.

Back in 2003, the Supreme Court upheld the Children's Internet Protection Act ("CIPA"), in which Congress required that libraries that receive federal funds must use filtering software to block content thought to be harmful to minors. CIPA was unclear, however, on whether adults would be able to avoid the filters. Three Justices thought that CIPA was unconstitutional in all instances, but the six Justices who voted to uphold CIPA had to strain to find a way to find the law to be constitutional. Since the text of the statute was unclear, the Justices instead – very unusually – directly relied on the statements of the U.S. Solicitor General in oral argument before the court, who assured the court that CIPA did in fact allow adults to avoid the filters.

According to the oral argument transcript, Solicitor General Olson told the Court that a "librarian can, in response to a request from a patron, unblock the filtering mechanism altogether," and that "the library patron would not have to explain any reason why he was asking a site to be unblocked or the filtering to be disabled." As we detailed in our brief, the Supreme Court expressly relied on these statements to avoid the clear constitutional problems that would be raised by a library blocking adults' access to lawful Internet content. So the legal upshot of the CIPA decision is that Congress could require the filtering, but the libraries must remove the filtering or unblock sites at the request of an adult patron.

And that is what the North Central Regional Library District refused to do. In a case brought by the ACLU, Sarah Bradburn and others challenged the library system's refusal to allow adults access to lawful content on the Internet. Among the Internet content that the plaintiffs could not access through the library was information needed for academic research assignments on drug abuse, health information, blogs on MySpace, and a website addressing the safe use of firearms.

As the brief argues, for many people in America (especially in rural areas), the public library provides the only access they have to the Internet. It is vital that their use of the Internet not be obstructed by overbroad and mandated filtering software. CDT has long argued that filtering software is useful for parents wanting to protect their children. But that same software, when imposed by a government that refuses to allow adults to avoid the blocks, can raise serious constitutional concerns.