Amicus Curiae Brief — United States v. American Library Assn., Inc.

Supreme Court brief2003

Ask Donna

What actually matters in this document.

Text

No. 02-361

In the Supreme Court of the Hnited States

UNITED STATES OF AMERICA, ET AL., APPELLANTS

Vv.

AMERICAN LIBRARY ASSOCIATION, INC., ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BRIEF OF THE GREENVILLE, SC, KAYSVILLE, UT,

AND KENTON COUNTY, KY PUBLIC LIBRARIES AS

AMICI CURIAE IN SUPPORT OF THE APPELLANTS

Of Counsel KENNETH C. BASS, III

H. JOHANNES GALLEY Counsel of Record

DAVID CASTRO STERNE, KESSLER,

Center for the GOLDSTEIN & Fox, P.L.L.C.

Community Interest 1100 New York Avenue, NW

Suite 2112 Washington, DC 20005

The Lincoln Building (202) 218-7825

60 E. 42nd Street a

New York, NY 10165

January, 2003

QUESTION PRESENTED

Whether a public library’s use of filtering software in

an effort to reduce the ability of library patrons to access and

display illegal obscenity and child pornography violates the

First Amendment.

TABLE OF CONTENTS 7

Interests Of the AmsiCi............ccccccccccsccessescecssccsoocssees l

Summary Of Argument...............ccsccccscccrsesecssseseerees 3

PBI cecceneeceseseercessssessereeeeneneseeveconsvseevesnssnaceseases 3

I. The First Amendment Does Not Preclude Use of

Internet Filtering Systems in Public Libraries........ 3

A. This Court Has Never Held That The First Amendment

Applies to A Public Library’s Acquisition Decisions —

pk) ee 4

B. If The First Amendment Applies, The “Reasonable

Basis” Standard Applies, Not The “Strict Scrutiny” —

C. Internet Filtering Meets Both the “Reasonableness” and

the “Least Restrictive Means” Test ............:cc0sseseeesees 11

D. Libraries, Like the Postal Service, Are Not Compelled

to Transport Obscene Materials ...............::0sssssesseeeseees 13

II. Public Libraries Have a Duty, Not Merely a

Right, to Filter Internet Pornography to Avoid

Facilitating The Felonies That Are Committed

When Patrons Access Obscenity Or Child

TABLE OF AUTHORITIES

Page

Cases

Bethel School Dist. No. 403 v. Fraser,

Ee 11

Blount v. Rizzi,

Te 13,15

Board of Education v. Pico,

| ee 4, 5,6, 11

City of Boerne v. Flores,

A 12

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,

EE x

Denver Area Educational Telecommunications Consortium,

Inc. v. FCC,

a 11

General Media Comm. v. Cohen,

a 11

International Soc'y for Krishna Consciousness, Inc. v. Lee,

TT 8,9

Kennedy v. Mendoza- Martinez,

TL 21

Kreimer v. Bureau of Police,

| kee 9

Lamont v. Postmaster Gen.,

Ee ee 13, 15

Lee Art Theater, Inc. v. Virginia,

Te 10

Manual Enterprises v. Day,

Ee 14

National Endowment for the Arts v. Finley,

EE 7

Cases -- Continued

Paulsen v County of Nassau,

ee 10

Perry Educ. Assn v. Perry Local Educators’ Assn,

Cs On 8,9

Rosenberger v. Rector & Visitors of Univ. of Va.,

yy 10

Roth v. United States,

SO Ge creme 14

Smith v. United States,

0 ey 14

The Gay Guardian Newspaper v. Ohoopee Regional Library

System

ee Oe ae 7

United States v. Carmack,

910 F.2d 748 (11th Cir. 1990)... ccccceeeeeeeeeenenes 14

United States v. Kuennen,

901 F.2d 103 (8th Cir. 1990).............ccccecceesseseeenenees 14

United States v. Matthews,

11 F. Supp. 2d 656 (D. Md. 1998) ............cc-cessereerees 20

United States v. Reidel,

i ) o>» aaa 14

United States v. Schein,

ly 14

United States v. Thomas,

pA) U0 7) 20

Statutes

a) 13

J) 20

JU A) 20

Other References

Greenville County (SC) Library System Case Study for

N2H2, (June 2001), available

http://www.n2h2.com/pdf/library_case_study.pdf............. 19

Mark S. Nadel, The First Amendment's Limitations on the

Use of Internet Filtering in Public and School Libraries:

What Content Can Libraries Exclude?, 78 Tex. L. Rev. 1117

Ee 5

Operations Committee Report on Internet Use Policy to Full

act ne pmeseinr mr san hs

Opinion of the Oklahoma Attorney General, (1997) available

www.odl state ok.us/fyi/filtering pdf. ...................+- 20

SMOLLA AND NIMMER ON FREEDOM OF SPEECH § 8:8.... 9, 10

What Would Dewey Do? Libraries Grapple With Internet,

THE NEW YORK Times, Dec. 2, 2002. ...............c00000+ 16

No. 02-361

In the Supreme Court of the Anited States

UNITED STATES OF AMERICA, ET AL., APPELLANTS

Vv.

AMERICAN LIBRARY ASSOCIATION, INC., ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BRIEF OF THE GREENVILLE, SC, KAYSVILLE, UT,

AND KENTON COUNTY, KY PUBLIC LIBRARIES

AS AMICI CURIAE IN SUPPORT OF THE

APPELLANTS

Interests of the Amici

This brief is filed with the consent of the parties’ on

behalf of the Greenville, SC, County Library, the Kaysville,

UT, City Library and the Kenton County, KY, Public

Library. Each of the amici is a public library that wants to be

able to use filtering software on its Internet browsers without

' The parties’ letters of consent have been filed with the Clerk in

compliance with Rule 37.3. This brief was not authored in whole or in

part by counsel for any party. The Center for the Community Interest

provided funding for printing the brief.

becoming subject to judicial regulation under the First

Amendment. The decision of the three-judge district court in

this case rests on a conclusion that such filtering violates the

First Amendment rights of library patrons. Regardless of the

validity of the federal funding statutes directl; at issue, any

decision of this Court that reached the same conclusion

would prevent public libraries from voluntarily using

software filters to reduce the possibility that patrons would

access illegal obscenity and child pornography. Amici

therefore have an interest in having this Court reject the First

Amendment analysis employed by the district court.

Amici also wish to advise the Court that the position

taken by the American Library Association in this case is not

shared by all libraries. There are many public libraries that

believe the essence of a library’s selection process involves

precisely the form of content-based discriminativa that the

First Amendment normally prohibits. Amici believe that

many public libraries think they should be free to select

books without being subject to judicial review under the First

Amendment. We believe that this “freedom to choose” also

applies to the Internet and a decision to install filtering

software. There are other public libraries, in addition to

these amici, that share our views, but are inhibited from

taking a public position contrary to the shortsighted request

for judicial intervention that has been adopted by the ALA.

We believe the Court should consider the views of

the many libraries that do not support the ALA position,

especially with regard to the impact that prohibition of

filtering will have on the library environment and the adverse

precedential effect that applying traditional First Amendment

principles will have on the basic process of selecting

materials for inclusion in libraries.

Summary of Argument

The district court’s application of the Firs

Amendment is fundamentally inconsistent with the mission

and purpose of libraries. The task of every library is to select

material, based on its content, which will be made available

to the library patrons. Judicial regulation of those decisions

under the First Amendment would eliminate the traditional

freedom of libraries to make accession decisions without

external governmental control.

As the district court found, the Internet contains an

extensive amount of illegal obscenity and child pornography.

Unfiltered access to the Internet will inevitably allow library

patrons to display unprotected and illegal materials in a

public place. Libraries that have allowed unfiltered Internet

access have experienced significant problems with regard to

such illegal conduct. The district court’s decision in effect

requires public libraries to facilitate public display of illegal

obscenity and child pornography.

The Court should vacate the decision below and hold

that the First Amendment does not apply to accession

decisions of public libraries.

Argument

I. The First Amendment Does Not Preclude

Use of Internet Filtering Systems in Public

Libraries

The district court concluded that the First

General argues that if the First Amendment applies, the

proper standard is “rational basis review.” We submit that

the Court has not yet decided whether the First Amendment

has any application to a public library’s choice of materials

to be made available to its patrons. We further submit that

the Court should conclude that the First Amendment does

not govern a public library’s decision to acquire materials or

to make materials on the Internet available to patrons. To the

extent there is a constitutional constraint on those decisions,

it would be found in the Equal Protection Clause protection

against invidious discrimination, not in the First Amendment

protection of free speech.’

A. This Court Has Never Held That The First

Amendment Applies to A Public Library’s

Acquisition Decisions — Amici Submit It Does Not

The district court decision rests on an assumption that

the First Amendment applies to public libraries when they

decide what information to make available to patrons. The

assumption is not founded on any controlling precedent’. No

prior opinion of this Court has decided whether the First

Amendment applies to a library acquisition decision. The

Court has considered the issue only once. In Board of

Education v. Pico, 457 U.S. 853 (1982), the Court

considered whether the First Amendment applied to a public

? If a library were to limit its acquisitions in a manner that amounted to

discrimination against a race, gender, religion or political party, a court

might properly conclude that the policy was unconstitutional under the

Equal Protection Clause.

> The district court passed on the issue in a footnote: “Because we find

that the plaintiff public libraries are funded and controlled by state and

local governments, they are state actors, subject to the constraints of the

First Amendment, as incorporated by the Due Process Clause of the

Fourteenth Amendment.” (J.S. App. 96a; 201 F.Supp.2d at 451, n 20)

school library’s decision to remove certain books from its

shelves. There was no opinion for the Court. Four Justices

concluded that the removal violated the First Amendment,

while four concluded that it did not. The deciding vote to

remand for trial was cast by Justice White who believed the

issue was not ripe for summary judgment and hence did not

address the First Amendment issue. Justice Brennan’s

opinion concluding that the removal was unconstitutional

pointedly distinguished a decision to acquire a book. Jd. at

872-73. Internet filtering involves the acquisition process,

not the removal of information that has already been

acquired. There are no subsequent reported decisions and the

Pico issue has not been considered here in the past 20 years.

We suggest that a principal reason behind the deeply

divided decision of the Court in Pico was an awareness by

several of the Justices of the consequences of holding that -

the First Amendment applied to decisions by a library

concerning its holdings. The essence of sound librarianship

with respect to acquisition and de-selection decisions is

content-based discrimination. Librarians necessarily

choose to allocate their limited resources‘ to materials they

deem most appropriate for the patrons they serve. The

process inherently requires library officials to make choices

of what to offer based on the content of those materials.

* The district court correctly rejected the argument that unfiltered

Internet access did not affect allocation of scarce resources. (J.S. App.

126a; 201 F.Supp.2d at 465, n 25) “The same budget concerns

constraining the number of books that libraries can offer also limits the

number of terminals, Internet accounts, and speed of access links that can

be purchased, and thus the number of Web pages that patrons can view.

This is clear to anyone who has been denied access to a Website because

no terminal was unoccupied.” Mark S. Nadel, The First Amendment's

Limitcxions on the Use of Internet Filtering in Public and School

Libraries: What Content Can Libraries Exclude?, 78 Tex. L. Rev. 1117,

1128 (2000).

The essence of librarianship is, in short, inconsistent

with one of the basic tenets of traditional First Amendment

jurisprudence that content-based decisions regarding speech

are suspect.’ If the Court adopts the district court’s

conclusion, Chief Justice Berger’s concern that “this Court

would come perilously close to becoming a ‘super censor’ of

.. . library decisions” would become a reality. Pico, supra,

at 885. Given the heightened awareness of library

acquisitions that this case has spawned, it would not be

possible to limit any decision applying the First Amendment

in this case to the narrow issue of Internet filtering.

Application of the First Amendment here will be an open

invitation to further federal litigation on any public library

acquisition or de-selection decision that any patron, author or

publisher disagrees with. The Court should not expand the

judiciary’s role by rendering a decision that the First

Amendment applies. Such a decision would fundamentally

alter the allocation of responsibility for control of library

accession decisions. Affirmance of the district court’s

> This traditional principle does not apply if the government entity is not

a traditional public forum. In such cases, content-based decisions are

permissible. In addition, the Supreme Court has in recent years clarified

that the essence of the traditional judicial antipathy to content-based

decisions needs to be re-formulated to clarify that the area of judicial

concern is really with “viewpoint” discrimination as distinguished from

this case does not involve any “viewpoint discrimination” (Juris.

Statement at 22).

decision would, in effect, make the federal judiciary the

national Supreme Librarian. °

There is no textual or historical basis for applying

First Amendment limitations to public library acquisition

decisions. The First Amendment provides that “Congress

shall make no law . . . abridging the freedom of speech.”

This case — like the government grants considered in

National Endowment for the Arts v. Finley, 524 U.S. 569

(1998) — does not involve any governmental action to

suppress or prevent anyone from speaking or receiving any

speech. All that Internet filtering does is to restrict use of

government resources for transmission of ceriain speech

through a specific channel. No speaker whose website is

blocked by an Internet filter is precluded from publishing

that same speech in any form, using any medium. No patron

of any library that uses filtering is precluded from having

access to that speech through other Internet facilities. As

such, this case fits Justice Scalia’s observation in NEA v.

Finley that denial of public resources to support or provide

an outlet for speech is not by any means an abridgment of

that speech. Jd. at 2182-85 (concurring opinion).

Because a library’s Internet filtering system does not

suppress any communication, but merely closes one discrete

* This characterization is not rhetorical exaggeration. Last October the

ACLU filed a complaint in the Southern District of Georgia to compel a

public library to provide space for distribution of free publications. See

The Gay Guardian Newspaper v. Ohoopee Regional Library System, 02-

Cv-i08 ne — The Complaint is available online at

. i id=10850. The district court in

Si casanaeae ead: te tedine axtnenes tiasten tum 0

library decision to include or exclude a particular book. The Solicitor

General argues persuasively that this distinction is untenable. But the

existence of that extended discussion in the district court’s opinion

illustrates the fundamental inconsistency between core First Amendment

jurisprudence and the core mission of libraries.

pathway involving certain specific government-owned

facilities, it is not a abridgment of speech within the

protection of the First Amendment.’

B. If The First Amendment Applies, The

“Reasonable Basis” Standard Applies, Not The

“Strict Scrutiny” Standard

The district court concluded that the “strict scrutiny”

standard applies to library filtering. We agree with the

Solicitor General that if the First Amendment applies at all,

the “rational basis” test is the appropriate standard.

For purposes of the First Amendment, this “Court

[has] identified three types of fora: the traditional public

forum, the public forum created by government designation,

and the nonpublic forum.” Cornelius v. NAACP Legal Def.

& Educ. Fund, Inc., 473 U.S. 788, 802 (1985). “Traditional”

public fora include those places which “by long tradition or

by government fiat have been devoted to assembly and

debate.” Perry Educ. Assn. v. Perry Local Educators’ Assn.,

460 U.S. 37, 45 (1983). They include “streets and parks

which have immemorially been held in trust for the use of

the public and, time out of mind, have been used for

purposes of assembly, communicating thoughts between

citizens, and discussing public questions.” Jd. at 45 (internal

quotation marks and citations omitted). Computers are

devices of very recent origin. They are manifestly not in the

category of traditional public fora.’

7 There is no historical basis for extending First Amendment protections

to public libraries. The first public library was established in Boston in

1854, more than 60 years after adoption of the First Amendment.

*See International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S.

672, 694 (1992) (“Airports are of course public spaces of recent vintage,

and so there can be no time-honored tradition associated with airports of

permitting free speech”) (Kennedy, J. concurring).

A “designated” public forum “consists of public

property which the State has opened for use by the public as

a place for expressive activity.” Jd. at 45 (emphasis added).

Moreover, in order to be a “designated” public forum, the

property must be open to “indiscriminate use by the general

public.” Jd. at 47 (emphasis added). Thus this Court has

explained that “[t]he mere fact that an instrumentality is used

for the communication of ideas does not make a public

forum .... Were we to hold to the contrary, display cases in

public hospitals, libraries, office buildings, military

compounds, and other public facilities, immediately would

become Hyde Parks open to every would-be pamphleteer and

politician. This the Constitution does not require.” Perry,

460 U.S. at 49, n.9 (internal quotation marks and citations

omitted). No library has opened its doors for indiscriminate

use by the public at large for all communication purposes.

Libraries accordingly are not properly characterized as

“designated” public fora. But see Kreimer v. Bureau of

Police, 958 F.2d 1242, (3d Cir. 1992)(concluding that a

library is a designated public forum and upholding library

regulations on patron behavior).

A “non-public forum” (sometimes called a “non-

forum”) consists of “publicly-owned facilities that have been

dedicated for either communicative or non-communicative

purposes, but that have never been designated for

indiscriminate expressive activity by the general public.”

SMOLLA AND NIMMER ON FREEDOM OF SPEECH § 8:8.

Libraries fall into this category and are subject to the broad

authority that government may exercise over such property.

In the traditional forum content-based regulations of

citizen speech are subject to strict scrutiny. Such regulations

will survive challenge only if “narrowly drawn to achieve a

compelling state interest.” International Soc'y for Krishna

Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). Ina

“designated” forum the government may dedicate it to

certain purposes and impose limitations that are “reasonable

in light of the purpose served by the forum,” as long as the

regulation does not result in “viewpoint discrimination.”

Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.

819, 829 (1995) (quoting Cornelius, 473 U.S. at 406). By

contrast, in a non-public forum “the state has maximum

control over communicative behavior since its actions are

most analogous to that of a private owner.” Paulsen v.

County of Nassau, 925 F.2d 65, 69 (2nd Cir. 1991).

“(G]overnment imposed restrictions of speech in [non-public

fora] will be upheld so long as reasonable and viewpoint

neutral.” Lee Art Theater, Inc. v. Virginia, 505 U.S. 636,

694. (Kennedy, J. concurring). As Smolla and Nimmer have

pointed out:

The government “may reserve the forum for

its intended purposes communicative or

otherwise, as long as the regulation of speech

is reasonable and not an effort to suppress

expression merely because public officials

opposed the speaker's view. Entire classes of

speech thus may be excluded from a non-

forum. Those classes may be identified by

content, as long as the exclusion is reasonable

in light of the purpose of the forum and there

is no discrimination upon viewpoints within a

class.

SMOLLA AND NIMMER § 8:8 (quoting Perry, 460 U.S. at 47

with emphasis added by Smolla and Nimmer).

The communications that are the target of the

filtering software mandated by the federal statute are

websites containing obscenity, child pornography or material

harmful to minors. This restriction is manifestly the sort of

content-based regulation that is permissible under the First

Amendment standard that governs “designated” fora or non-

public fora. This restriction has nothing to do with point of

view.’

C. Internet Filtering Meets Both the

“Reasonableness” and the “Least Restrictive

Means” Tests

The Solicitor General and other amici have shown

why filtering software is a reasonable restriction on Internet

access in a public place. We submit that current obscenity

filtering software is the least restrictive means of precluding

access to illegal pornography, despite the acknowledged

inherent inaccuracies in filtering technology.

The filtering software considered by the district court

here is intended to reduce access to materials that are

obscene, constitute child pornography or contain material

harmful to minors. There is no doubt that the public interest

in limiting that access is a compelling government interest.

Six present members of this Court have agreed that the

“interest of protecting children [from seeing patently

offensive sex-related material on TV] is compelling.”

Denver Area Educational Telecommunications Consortium,

Inc. v. FCC, 518 U.S. 727, 747 (1996) (opinion of Justice

Breyer, ond by Justices Stevens, O’Connor and Souter,

stating view is shared Justices and

: by Kennedy

* See General Media Comm. v. Cohen, 131 F.3d 273, 282 (2nd Cir.

1997), 1997 U.S. App. LEXIS 40571 *23 (corrected Mar. 25, 1998)

(rejecting as “linguistic overreaching” claim that “lasciviousness” is a

viewpoint); Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 683

(1986) (rejecting claim that “offensively lewd and indecent speech” was

related to political viewpoint); Board of Educ. v. Pico, 457 U.S. 853, 871

(1982) (plurality opinion) (an “unconstitutional motivation could not be

demonstrated” if school board removed library books because they were

“pervasively vulgar” rather than because of “disfavored ideas”).

The district court held that filtering software was not

the least restrictive means for protecting the government's

interest. That holding is based on a misapplication of the

least restrictive means doctrine. The doctrine requires an

restriction of protected speech. “[TJhere must be a

congruence between the means used and the ends to be

achieved ” City of Boerne v. Flores, 521 U.S. 507, 530

(1977).

The district court concluded that filtering software

blocked too much protected speech in comparison with other

alternative procedures. The flaw in that comparison was that

the district court failed to focus on the legitimate goal —

reducing patron’s access to unprotected obscenity and child

pornography. None of the alternatives that the district court

considered reduced access to illegal materials. All that most

of the alternatives did was to reduce the risk that someone

other than the patron who was using the Internet terminal

would be exposed to the materials. The “tap on the

shoulder” and “report it to the police” alternatives do not

reduce the probability of access; they are “after-the-fact”

sanctions. Similarly installation of privacy screens cannot

reduce the probability of illegal access. Those less restrictive

alternatives relied upon by the district court are simply not

comparable to filtering software because they do not block

access to the illegal material.

The only alternative considered by the district court

that has any prophylactic potential is the “proper use policy”

approach. But no one would contend that a paper policy is as

effective as filtering software in actually preventing access to

illegal materials." The First Amendment does not require a

government entity to use a less effective restriction in order

to achieve a legitimate end. Before a particular restriction

can be held unconstitutional, the court must find that there is

an alternative that is less restrictive with respect to protected

speech, but equally effective at regulating the unprotected

speech. The district court failed to apply this basic principle.

Filtering software is imperfect. All observers agree

on that. But no one has yet suggested any equally effective —

but less restrictive — means of reducing access to the vast sea

of unprotected illegal materials that is on the Internet. The

Internet filtering software available today is the least

restrictive means available for achieving the legitimate goal

of libraries that wish to limit access to such materials.''

D. Libraries, Like the Postal Service, Are Not

Compelled to Transport Obscene Materials

The district court rested its decision, in part, on an

analogy to the postal service. It cited Lamont v. Postmaster

Gen., 381 U.S. 301 (1965) and Blount v. Rizzi, 400 U.S. 410

(1971), two decisions regarding restrictions on access to

postal services. While analogies to the Postal Service are not

perfect, there is some legitimacy in considering practices in

that communications channel in this context. Both the Postal

Service and public libraries act as conduits for information.

The actual experience of amicus Greenville County Library as

described below shows how ineffective “tap on the shoulder” and proper

use policies are in deterring access.

'' We recognize that application of a “least restrictive means” analysis

might preclude use of specific filtering software that failed to conform to

“best practices” in the industry and blocked far more protected speech

and far less unprotected speech than available alternative software. But

that possibility does not justify the blanket conclusion of the district

court that edi filtering software is unconstitutional.

But it is well established that the Postal Service cannot be

used to carry obscene materials. Section 1461 of Title 18 of

the United States Code specifically provides that “[e}very

obscene, lewd, lascivious, indecent or filthy article . . . is

declared to be nonmailable matter and shall not be conveyed

in the mails or delivered by any letter carrier.” The Court

has repeatedly held that the statute is constitutional. Roth v.

United States, 354 U.S. 476 (1957); United States v. Reidel,

402 U.S. 351 (1971); Smith v. United States, 431 U.S. 291

(1977). Prosecutions under that statute are not uncommon.”

If the Postal Service — a nationwide government

monopoly — cannot be used to carry obscene material, then

certainly a local library can refuse to disseminate obscene

material, whether in print or on the Internet.” This

conclusion is particularly appropriate in light of the fact that

closing the mails to obscene material represents a

government refusal to allow a unique and irreplaceable

government asset to be used by citizens to communicate

materials that are not protected by the First Amendment. As

" See, e.g, United States v. Schein, 31 F.3d 135 (3rd Cir. 1994); United

States v. Carmack, 910 F.2d 748 (llth Cir. 1990); United States v.

Kuennen, 901 F.2d 103 (8th Cir. 1990), certiorari denied, 498 U.S. 958.

Each case was a prosecution under 18 U.S.C. § 1461.

"Nothing in the Court’s subsequent decision in Manual Enterprises v.

Day, 370 U.S. 478 (1962) undercuts this argument. In that case a

publisher of magazines sued to overturn an administrative refusal to

accept certain magazines for mailing. A divided seven-Justice Court set

the refusal aside. Justices Harlan and Stewart concluded that the

magazines in question “cannot be deemed legally ‘obscene."” /d at 482.

criminal statute did not authorize administrative action to refuse to accept

matter for mailing. /d at 495-519. Justice Clark dissented and would

have upheld the administrative exclusion against the First Amendment

challenges. Justice Black concurred in the judgment without joining or

expressing any opinion. /d at 495. Justices White and Frankfurter did

not participate in the decision. /d

noted above, closing a public library’s Internet terminals to

obscenity leaves library patrons free to access that ma‘erial

through other terminals.

The administrative scheme invalidated in Blount v.

Rizzi as an unconstitutional limitation of First Amendment

rights allowed the Postmaster General to detain al] mail sent

to individuals believed to be using the postal system for

commerce in obscene materials. The regulatory scheme was

comprehensive and affected all incoming mail, without

regard to whether the specific item was obscene material.

When a library uses filtering, it does not prevent any

individual from accessing the Internet. The filters do not

delay or deny access to the total Internet universe, but instead

limit access by blocking a relatively miniscule segment of

that vast sea of Internet information. An administrative

detention of all incoming mail is markedly different from a

selective denial of access to a limited amount of material.

Lamont vv. Postmaster General involved an

administrative interference with delivery of mail believed to

be communist propaganda, material that was protected by the

First Amendment. That administrative scheme was based on

shares neither of those characteristics. Obscenity and child

pornography is not protected by the First Amendment and

the filtering software used by libraries does not involve any

discrimination against a particular viewpoint.

II. Public Libraries Have a Duty, Not Merely a

Right, to Filter Internet Pornography to Avoid

Facilitating The Felonies That Are Committed

When Patrons Access Obscenity Or Child

Pornography In A Public Place

It is indisputable that there is a vast amount of

obscenity and child pornography on the Internet that is not

protected by the First Amendment and is illegal under state

and federal laws. The material of concern is not “soft core

pornography” but plainly obscene material. The

Government put examples of some of that material in the

trial court record. E.g. Def. Ex. 185A. Other examples of

material that is even more “hardcore” than the trial exhibits

can be found with ease using a common Internet search

engine. It is also indisputable that when a library offers

unfiltered access to the WorldWideWeb, library patrons can

and will access and display illegal material.'* See, e.g., What

Would Dewey Do? Libraries Grapple With Internet, THE

New YorK Times, Dec. 2, 2002. Well-publicized

proceedings across the nation prove that access to illegal

obscenity on the Web is not a theoretical problem, but a real

“ A January 2603 search for Internet sites using the term “anal sex” and

the www.google.com search engine produced more 2,000,000 “hits”.

While not all those sites contain illegal obscene material, many of them

do. A few examples of the numerous sites that are plainly obscene are:

Serial No. 106-115), at 30; see also Defts’ Ex. 8 (“Dangerous Access”

Report) (available at http://www frc.org/get/b1063 cfm).

one that has caused a significant re-allocation of law

enforcement resources. Indeed the Department of Justice has

created a special component for investigating and

prosecuting Internet child pornography. '®

The experiences of each of the amici illustrate the

extent of the problem. The Kenton County Library initially

Offered access to the Internet on an unfiltered basis. They

found that patron demand for their terminals exceeded their

expectations. The sole interest of a significant number of

patrons appeared to be pornography. Parents complained

that their children had seen pornography on terminal screens,

including one instance where the default desktop image on a

terminal had been changed to a pornographic picture.

Pictures of sex acts were left in the output trays of library

printers. Eventually the library installed filtering software to

reduce the incidence of such problems. If the district court’s -

decision were affirmed, Kenton County could no longer use

a software, regardless of any receipt of federal

The Kaysville Utah Library has a “proper use” policy

that advises patrons that the library terminals are for

reference research and that pornography does not qualify as a

reference tool. Patrons are advised that violation of the

policy can lead to loss of library privileges. Reviews of the

logs of Internet access have disclosed frequent violations of

the stated policy. The library believes a possible pedophile

has used the terminals for contacting potential victims.

Some patrons have altered terminal settings to leave

objectionable images on the screen. The problems have been

so extensive that the library decided to re-locate all terminals

'* Child Exploitation and Ohscenity Section, DOJ Criminal Division. See

hep:// , criminal/=¢08/' )

into the main body of the library so the staff could see all the

screens and monitor use better.

The Greenville County Library first offered unfiltered

Internet access in the summer of 1998. While the written

policy included a provision that users could not “display

obscene materials, child pornography, and/or other materials

prohibited under applicable local, state, and federal laws,”

the former Executive Director told the staff that they should

never interfere with a patron’s use of the terminals,

regardless of what was displayed on the terminals." In

February 2000 the library instituted a “tap on the shoulder”

policy and installed “privacy desks” around the majority of

Internet terminals. Those changes did not, however,

significantly reduce access to improper materials. A library

staff member estimated that 20-25% of patrons used the

Internet to access pornography and/or obscenity. A June 27,

2000 review of the log file from one terminal revealed that at

least 20% of the sites visited were pornographic or obscene.

During one nine month period the Greenville Library

documented more than 100 such incidents including:

e A live video of people engaging in heterosexual and

homosexual sex.

e A live video of people engaging in sex with animals,

including a girl with a strapped on plastic penis

having sex with a dog and a man having sex with a

chicken.

e A live video of men having oral sex with boys.

e A live video of a male ejaculating onto the face of a

woman.

e Live videos of male and female masturbation.

’ That individual is no longer with the library. His policy was consistent

with — if not strongly influenced by -- the policy of the Appellee

Library staff also reported several instances of adults

exposing children to pornography and/or obscenity using the

Internet terminals. Many more examples, including access to

child pornography and access by minors, are documented in

the Report of the Greenville Operations Committee.'* The

reported incidents are believed to represent merely a fraction

of the actual number incidents that have occurred.

The Greenville Library Committee concluded that the

“proper use,” “tap on the shoulder” and “privacy desk”

policies were ineffective. The majority of the incidents

reported had occurred after those measures had been

implemented. The Library ultimately installed filtering

software. (J.S. App. 40a; 201 F.Supp.2d at 424) In the year

following “installation of the [filtering software] in July of

2000, there [had] been no Internet related incidents involving

library security staff, no complaints by the public and only

twelve (12) web sites have had to be blocked locally and

twelve (12) sites have been unblocked locally.” Greenville

County (SC) Library System Case Study for N2H2, (June

2001) available through the Internet at

. / oy

Public libraries are government agencies. As such it

is especially important that they not only act lawfully, but

also avoid actions that will facilitate unlawful actions of their

patrons. No reasonable person would suggest that a library

has a responsibility to provide not only information on drugs,

but also the means for patrons to make drugs in the library.

Yet that is precisely what the proponents of “no filters” in

essence urge. The position advanced here by the Appellees -

and accepted by the district court — is that once a library

tip: // WWW .COD: commissior wUill/ DADC! S/ BT COT fi PIS VVUIL. DU:

Chairman of the Greenville Library Board testified at the trial below.

decides to allow any access to the Internet, it is compelled by

the First Amendment to give its patrons all the tools they

need in order that they might commit felonies in a public

place using public facilities. That position, we submit, defies

logic, common sense and any reasonable interpretation of the

core concepts of the Constitution and the Rule of Law.

In most of the states public display or obscene

material is illegal. In many it is a felony.” Interstate

transmission of child pornography, including viewing files

over the Internet, is a federal crime.” The Oklahoma and

Tennessee Attorneys General have opined that if library

personnel knowingly allowing a minor library patron to view

material that is harmful to minors they could expose

themselves to criminal liability." The Tennessee Attorney

General advised that implementation of filtering software

would be a defense to any such charge, if filtering is -

constitutional. But regardless of any criminal liability for

library employees, intentional access and display of obscene

materials or child pornography by a library patron would be

2 18 U.S.C. $§ 2252, 252A: see also 18 US.C. § 1465 (interstate

transportation of obscenity); United States v. Thomas, 74 F.3d 701 (6th

Cir. 1996) (conviction for transmitting obscenity using personal

computers and telephones upheld); United States v. Matthews, 11 F.

Supp. 2d 656 (D. Md. 1998) (prosecution of a seasoned reporter for

receiving and transmitting child pornography over the Internet; denial of

First Amendment defense)

2! The February 22, 2000 opinion of the Tennessee Attorney General is

available from the Tennessee rer General's website at

16, 1997 opinion of the Oklahoma Attomey General is available as a part

of a March 2000 guide for libraries published by the Oklahoma

Department of Libraries and available over the Internet at

http://www.odl.state.ok.us/fyi/filtering.pdf-

criminal conduct under many state laws. The crime would

be committed using equipment made available by a state

agency, knowing that the equipment could be — and likely

would be — used to view illegal materials.

We submit that this Court has not previously

construed the First Amendment to require a government

agency to facilitate the commission of criminal offenses. We

do not believe the First Amendment should be so construed

now. As Justice Goldberg wrote for the Court almost 40

years ago, “while the Constitution protects against invasions

of individual rights, it is not a suicide pact.” Kennedy v.

Mendoza-Martinez, 372 U.S. 144, 160 (1963). It is also not

a basis for compelling a public library to aid and abet

criminal conduct.

Conclusion

For the reasons stated in this and other briefs, the

Court should vacate the decision of the district court and

hold that the First Amendment does not preclude use of

Internet filtering software by public libraries.

Respectfully submitted,

Of Counsel KENNETH C. BAss, III