Sunday, February 1, 2009


Libraries in the Rehnquist Decision
United States v. American Library Association 539 US 194 (2003)

*Note: The following presents collapsed statements from the Rehnquist decision upholding the Child Internet Protection Act (CIPA) and are given here without quotation marks or ellipses. Quotation marks and ellipses are used in the dissents. CIPA required all schools and public libraries that received certain federal assistance programs to install filters against pornography.

Rehnquist for the 6 to 3 plurality begins.

To determine whether libraries would violate the First Amendment by employing the filtering software that CIPA requires, we must first examine the role of libraries in our society.

Public libraries pursue the worthy missions of facilitating the learning and cultural enrichment. Libraries should provide books and other resources for the interest, information, and enlightenment of all people of the community the library serves.[1]

To fulfill their traditional missions, public libraries must have broad discretion to decide what material to provide to their patrons. Their goal has never been to provide universal coverage. To this end, libraries collect those materials deemed to have requisite and appropriate quality.[2]

The librarian’s responsibility … is to separate out the gold from the garbage, not to preserve everything.[3]

Public library staffs necessarily consider content in making collection decisions and enjoy broad discretion in making them.

Internet access in public libraries in neither a traditional nor a designated public forum.[4] Firstly, the Internet did not exist until quite recently, nor been held in trust for the purposes of assembly, communication of thoughts between citizens, and discussing public questions.[5] We have ‘rejected the view that traditional public forum status extends beyond its historic confines.’[6] Nor does Internet access in a public library satisfy our definition of a designated public forum. To create such a forum, the government must make an affirmative choice to open up is property for use as a public forum.

A public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to prove a public forum for the authors of books to speak. It provides Internet access, not to encourage a diversity of views from private speakers,[7] but for the same reasons it offers other library resources; to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality. …As Congress recognized. the Internet is simply another method for making information available in a school or library.[8] It is no more than a technological extension of the book stack.[9]

Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. It would make little sense to treat libraries’ judgments to block online pornography any differently. Moreover, because of the vast quantity of material on the Internet and the rapid pace at which it changes, libraries cannot possibly segregate, item by item, all the Internet material that is appropriate from all that is not. Neither can it provide access to only those it chooses without excluding an enormous amount of valuable material. Given that tradeoff, it is entirely reasonable for public libraries to instead exclude certain categories of content.

Stevens dissenting
“Rather than allowing local decisionmakers to tailor their responses to local problems, [CIPA] operates as a blunt nationwide restraint on adult access to ‘an enormous amount of valuable information’ that libraries cannot possible review.[10] Most of that information is constitutionally protected speech. In my view, this restraint is unconstitutional.

“The unchallenged findings of fact made by the District Court reveal fundamental defects in the filtering software. …The effect of the overblocking is the functional equivalent of a host of individual decisions excluding hundreds of thousands of individual constitutionally protected messages from Internet terminals located in public libraries throughout the nation. …The District Court expressly found that a variety of alternatives less restrictive are available at the local level. …These findings are consistent with scholarly comment on the issue arguing that local decisions tailored to local circumstances are more appropriate than a mandate from Congress. The plurality does not reject any of these findings.”

Instead the plurality “relies on the Solicitor General’s assurance that the statute permits individual librarians to disable filtering mechanisms whenever a patron so requests. …Until a blocked site or group of sites is unblocked, a patron is unlikely to know what is being hidden and therefore whether there is any point in asking for the filter to be removed.”

Souter dissenting joined by Ginzburg

“I agree in the main with Justice Stevens. …I also agree with the library appellees on a further reason to hold the blocking rule invalid. …The rule mandates action by recipient libraries that would violate the First Amendment’s guarantee of fee speech if the libraries took that action entirely on their own. I respectfully dissent on this further ground.”

Prepared by Roger Sween.

I welcome substantive comments on the contents of this blog. Personal comments may be made to me at the email address given above.

[1] This is a quote from ALA’s Library Bill of Rights.
[2] William Katz, Collection Development (1980) 6.
[3] F. Drury, Book Selection (1930) xi.
[4] As defined in Cornelius v. NAACP Legal Defense and Education Fund, Inc. 473 U.S. 788, 802 (1985).
[5] International Society for Krishna Consciousness, Inc. v. Lee 505 U.S. 672, 679 (1992).
[6] Arkansas Ed. Television Comm’n v.Forbes, 523 U.S. 678.
[7] Rosenberger v. Rector and Visitors of University of Virginia 515 U.S. 834. (1995).
[8] United States Senate, Report No. 106-141 (1999) 7.
[9] Ibid.
[10] Ante, at 11.