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Legal Issues in the Hillsborough Library Internet-Filtering Case
Protected Speech
The legal issue in this case is whether Hillsborough County's Internet
filtering is unconstitutional. The First Amendment to the United States
Constitution protects freedom of speech. The Supreme Court has held
that Internet communications are protected in the same manner that
the First Amendment protects other forms of speech.[Reno v. ACLU,
521 U.S. 844].
To determine whether restrictions on Internet access are unconstitutional, it must first be determined whether the information being restricted falls under the criteria of protected speech. One form of speech that does not receive constitutional protection is speech deemed to be obscene. However the definition of what is "obscene" is not abundantly clear. Courts have held that there is a distinction between speech that is "pornographic" and speech that is "obscene." For instance, sites providing information on reproduction or safe sex may be considered pornographic, without rising to a level of obscenity. Pornography that is not "obscene" is constitutionally protected. This year, the Supreme Court rendered a decision regarding the constitutionality of pornographic speech. The case challenged federal legislation that required Playboy adult-pay-per-view programming to be blocked from cable except for certain late night hours. The Court found that adults have a constitutional right to view such programming, even though many adults themselves would find it to be highly offensive. [ U.S. v. Playboy Entertainment Group, Inc., 529 U.S. ___, 120 S.Ct. 1878, 146 L. Ed. 2d 865 (2000)].
County Commissioners and the Library Board are well aware that in their attempt to restrict what they sometimes interchangeably refer to as pornographic or obscene material, they inevitably restrict access to constitutionally protected information as well.
Least Restrictive Means
It is unconstitutional to have a policy that censors adults under
the guise of protecting minors. Previous court decisions have found
that if a government entity wishes to limit speech in order to protect
minors, the method used must be that which is the least restrictive.
The least restrictive method is the one that interferes the least
with adults' freedom of speech in its effort to protect children.
The ACLU asserts that the system of Internet filtering in Hillsborough County is more restrictive than it needs to be. A test for determining least restrictive means has been established in a case brought against a public library system in Virginia. The Loudoun County Library's Board of Trustees had enacted a policy restricting access by library patrons to certain contentbased categories of Internet publications. The decision in this case marked the first time that a court applied First Amendment principles to Internet access at public libraries. In its decision the court defined requirements for determining the constitutionality of a library filtering policy. The main criteria is whether less restrictive means are available for accomplishing the protection of children. The Court suggested some methods which it thought would be less restrictive including, 1) installing privacy screens on unfiltered computers, 2) having library staff charged with "casual monitoring" of Internet use on unfiltered computers, 3) installing filtering software "on only some Internet terminals" to which minors are limited. [Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 2 F. Supp.2d 783 (E.D. Va. 1998)]
Prior Restraint
Lastly, a court will have to determine whether Hillsborough County's
Internet filtering constitutes a "prior restraint" of speech.
A prior restraint is a restriction placed upon speech before the speech
occurs. This is a very severe form of censorship that few courts have
allowed.
The ACLU is concerned that the libraries have too much discretion in deciding what speech can be prevented. The County did not define a clear standard for librarians to use in determining what Internet sites it choose to block. Furthermore, filtering decisions are left to WebSense employees with little or no training on the legal issues regarding censorship.
