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First Post-CIPA Lawsuit Filed Against a Library For Refusing to Dismantle Filtering Software

(November 21, 2006) - The ACLU of Washington has filed the first post-"CIPA" lawsuit against a library district for refusing to dismantle Internet filters. CIPA, or the "Children's Internet Protection Act," passed in 2000, requires filters on all computers in schools and libraries that receive federal aid for Internet connections.

A coalition of libraries and civil liberties groups challenged CIPA as a violation of the First Amendment rights of library patrons. A three-judge federal district court struck down the law, citing evidence of extensive overblocking of valuable Web sites, thousands of which had nothing to do with the sexual content that Congress was aiming at when it passed CIPA.

But in 2003, the Supreme Court reversed the district court and upheld CIPA. The majority opinion, by then-Chief Justice Rehnquist, said that filtering the Internet is no different from book selection decisions that libraries make every day, and that because the government is providing funds for Internet access, it has free rein to determine the scope of the information to be provided.

But there was an important caveat to the Supreme Court decision. Rehnquist said that to the extent that "erroneous" blocking of "completely innocuous" sites raises a constitutional problem, "any such concerns are dispelled" by CIPA's provision giving libraries the discretion to disable the filter upon request from an adult.

Concurring opinions by Justices Kennedy and Breyer went farther. Focusing especially on this "disabling" provision in voting to uphold CIPA. Kennedy said that if libraries fail to unblock, or adults are otherwise burdened in their Internet searches, then a lawsuit challenging CIPA "as applied" to that situation might be appropriate.

The ACLU of Washington has now filed such a lawsuit. According to an Associated Press report, the plaintiffs include a woman seeking to do research on drugs and alcohol; a professional photographer blocked from researching art galleries and health issues; and the Second Amendment Foundation, which says that the library's filters blocked access to Women & Guns, a magazine covering such topics as self-defense, recreational shooting, and new products.

The defendant in the case is the North Central Regional Library District, which operates 28 community libraries in five rural Washington counties. According to the ACLU's press release, the district has used SmartFilter, Bess edition software to filter Internet content on all public computers at its branch libraries. "Bess blocks a very broad array of lawful information," according to the ACLU, and the district "has refused to unblock sites for patrons."


Update: After many twists and turns, the U.S. District Court in April 2012 rejected the plaintiffs' constitutional challenge to the library district's policy of refusing to unblock filtered sites upon request. The court ignored the fact that the Supreme Court's decision upholding CIPA turned precisely on the ability to unblock access to constitutionally protected sites.

According to the American Library Association's September 2012 Newsletter on Intellectual Freedom, the plaintiffs decided not to appeal, in part because the library district had already modified its policies, and in part because "the court thought so little of its own opinion that it refused to allow the opinion to be published. As an unreported, unpublished opinion, the case has little or no precedential value in other courts."

The Newsletter reported on two other challenges to Internet filtering. In one, a school district agreed to stop using a filter that blocked web sites with positive information about gay, lesbian, bisexual, and transgender issues, while allowing sites that oppose LGBT rights. In the second, a library patron is challenging the use of a filter that blocks websites discussing minority religions by categorizing them as “occult” or “criminal.” In April 2012, the court refused to dismiss the case and scheduled a trial on the question of whether the library director and board violated the patron's First Amendment rights by refusing to unblock sites discussing astrology and the Wiccan religion. That trial is scheduled for June 2013.

See FEPP's Fact Sheet on Internet Filters for background, and "Ignoring the Irrationality of Internet Filters, the Supreme Court Upholds CIPA" for more on the Supreme Court's CIPA decision. Read Internet Filters: A Public Policy Report for more on the dangers of filtering software.

The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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