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Civil Rights Round Up

Is There a First Amendment Right to Access Porn at the Public Library?

An interesting constitutional issue has made the news here in Rochester.  A local tv station did an "expose" based on library patrons using computers at the public library to access porn in full view of anyone and everyone, kids included.  As explained in this article, the County Executive, Maggie Brooks, took a stand on the issue:

This all started last week after an I-Team 10 hidden camera investigation showed library patrons at the central branch viewing on-line sexual content. Library policy allows adults to have unfiltered access to the Internet, but County Executive Maggie Brooks responded to our investigation and wrote a letter to the library director threatening to de-fund the library if it didn't change its policy.

Not having researched the applicable law, my gut instinct was that the library could restrict the web sites that its users accessed, just as it restricts the content available in the books and magazines available to its patrons.  And doing so would not necessarily infringe upon the constitutional rights of its patrons.  For example, I have yet to stumble upon Penthouse magazine in my local library (but then again, maybe I'm looking in the wrong place!)  And,I don't see how the library's refusal to provide me with access to Penthouse violates my constitutional rights.  Likewise, I simply don't see how First Amendment rights are implicated by restricting access to pornographic web sites.

So, I was surprised to read this statement from the chair of a committee that was established to look into the issue:

Lovenheim says they are caught in the middle of two positions, the county executive's which comes with a hefty financial consequence and the U.S. supreme court, which he says ruled that unfiltered access is required for adults.

I was truly surprised to read that the Supreme Court had ruled that unfiltered internet access in public libraries was constitutionally required, so I did a little research.  And, surprise, surprise--I discovered that just the opposite was true.

In 2003, the Supreme Court held that the federal government may condition a library's receipt of federal funding on its mandatory use of Internet filtering software in United States v. American Library Association, Inc., 539 U.S. 194.  After giving the decision a quick read, I was pleased to note that my gut reaction was correct.  From the majority decision:

A library’s need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worth-while material; it is no less entitled to play that role when it collects material from the Internet than when it collects material from any other source. Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries’ judgments to block on line pornography any differently, when these judgments are made for just the same reason.

Thus, it seems to me that, contrary to the chairperson's assertions, there's no First Amendment issue here and the library can constitutionally filter the web sites accessible on its computers.

That being said, I haven't researched this issue fully, other than to confirm on Westlaw that the above decision hasn't been overruled.  Any constitutional scholars out there care to elaborate or disagree with my take on this issue? 


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Justin Walsh

I know that this issue is a hefty one. A friend of mine on Law Review recently wrote an article based on filtering of content such as myspace and facebook at schools, a similar issue in terms of the constitutional arguments. His first draft clocked in at 110 pages, with 30 of that being the rules surrounding First Amendment issues in this area. Definitely not an easy issue to tackle for any public entity.


Librarians, though sometimes scholarly, are not Consititutional scholars.

P.S. Did you know that not only are they required to give you access to whatever you want on the computers, they are also required to obtain whatever book you demand? (Just kidding.)


Dag, I insulted librarians, but I capitalized constitutional!

David Nieporent

That's an overstatement of what the Supreme Court said in the ALA case. It upheld a federal law requiring blocking software, based in part on the fact that the law (CIPA) specifically allowed libraries to disable filters for adults. It did not hold that it was okay to block legal content for adults.

(Rehnquist's opinion implied that it was, but Rehnquist's opinion only picked up 4 votes. Kennedy separately concurred, conditioned on the premise that libraries would unblock the filters for adults.)

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