Washington Supreme Court says it’s okay for state libraries to restrict access to the internet from library computers.
There is no right, in Washington, for an adult to walk into a public library and have unrestricted use of a library computer to surf the internet.
That’s the controversial upshot of the Washington Supreme Court’s 6-3 decision today in a case involving the policy of the state’s North Central Regional Library District (28 libraries in five counties) to use a web filtering service to block internet user access by censoring ten categories of web content.
The court majority, led by Chief Justice Barbara A. Madsen, reasoned that the censorship was legal because it is rooted in the rights that librarians have traditionally exercised to use their discretion in selecting materials to circulate among library users.
“The principle that a library has no obligation to provide universal coverage of all constitutionally protected speech applies to Internet access just as it does to the printed word in books, periodicals, and other material collected and made available to patrons,” Justice Madsen wrote for the majority.
Just as libraries are not required to purchase copies and make available all copies of constitutionally protected printed materials, Justice Madsen reasoned, “we do not believe there is any good reason to treat the material available on the internet any differently.”
Today’s controversial decision was an advisory opinion solicited from the Washington Supreme Court by Federal District court Judge Edward Shea, in whose court the library district is being sued. The opinion specifically looked at whether restricting web content in searches from library computers violated Article I, Section 5 of the Washington Constitution:
SECTION 5 FREEDOM OF SPEECH. Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.
The plaintiffs in the case are three individual library district patrons and the Second Amendment Foundation, a Washington non-profit organization created to promote the rights of gun owners. They argued that the use of the filters–specifically software known as the “FortiGuard Web Filtering Service”–amounts to unconstitutional “prior restraint” because it is over-broad and represents an unlawful, content-based restriction on speech. In the specific instance of the Second Amendment Foundation, the organization became a plaintiff after it learned that two of the websites it maintains had been blocked by the FortiGuard filter.
Much of what was at issue in the case has to do with that part of the NCRL policy that categorically denies requests from adult patrons of the library computers to disable the filter so that they can have unfettered access to the internet. Instead, the NCRL policy is to determine whether the filter erred in blocking access to sites–such as the websites maintained by the Second Amendment Foundation–that should not be blocked according to the NRCL policy.
The NRCL policy is to use the FortiGuard software to block eleven categories of content:
(1) Hacking, (2) Proxy Avoidance, (3) Phishing, (4) Adult Materials, (5) Gambling, ( 6) Nudity and Risqué content, (7) Pornography, (8) Web chat, (9) Instant Messaging, (10) Malware, (11) Spyware.
Among other things, the NRCL policy also blocks the image search, and video search functions of the library system’s computers. Among the factual arguments in the case is the regularity with which the filter mistakenly blocks content that is permissible under the library’s policy.
Justice Tom Chambers authored a vigorous dissent in the case in which he cited recent U.S. Supreme Court rulings in which a majority of the justices have either flatly declared or indicated that, under the federal First Amendment, “content filtering in libraries is only constitutional if the filter can be removed at the request of an adult patron”–something the NRCL policy does not allow.
“I agree with the majority that public libraries have no responsibility to have any particular text in their collection,” Justice Chambers wrote, “though of course the decision to exclude a text cannot be made for a constitutionally prohibited reason. But censoring material on the Internet is not the same thing as declining to purchase a particular book. It is more like refusing to circulate a book that is in the collection based on content.”
“Simply put,” Justice Chamber wrote in his conclusion for the minority, “the State has no interest in protecting adults from constitutionally protected materials on the Internet. These policies do exactly that. The filter should be removed on the request of an adult person. Concerns that a child might see something unfortunate on the screen must be dealt with in a less draconian manner.”
In a separate concurrence, Justice James Johnson took issue with a common premise in both the majority and minority opinions–which is that the state Constitution protects not just the right to speech, but a right to receive information and ideas.
“This court may believe that access to information and ideas is important to a free and well-informed society, but we do not amend our state constitution via judicial opinion, especially an advisory opinion on a certified question. That power is entrusted to the people of Washington.”
Justice Johnson nevertheless concurred with the majority’s view that the NRCL policy was constitutional because it involves the exercise of “quality-based collection judgments” that “are viewpoint neutral.
–CFJ
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