OLYMPIA, Wash.—In a 6-3 vote, the Supreme Court of Washington state ruled Thursday that internet filters used by libraries to filter undesirable content do not violate the state constitution. The opinion specifically mentioned pornography as a type of content that a library can decide to not make available to patrons, either in actual books or periodicals or on the internet.
"A public library can decide that it will not include pornography and other adult materials in its collection in accord with its mission and policies and, as explained, no unconstitutionality necessarily results," wrote Chief Justice Barbara Madsen, for the majority. "It can make the same choices about Internet access."
The plaintiffs in the case, however, argued that some internet searches were prevented by the FortiGuard Web Filtering Service maintained by The North Central Regional Library District (NCRL). The case—Bradburn v. N. Central Regional Library District—made its way to the state high court by way of the American Civil Liberties Union of Washington, which filed suit in 2006 against the five-county library district in Eastern Washington. The U.S. District Court in Spokane asked the state Supremes to review.
According to the opinion, the filtering system, which maintains a constantly updated database catalogue of over 43 million web sites and over 2 billion individual web pages, is configured by the NCRL to filter the following categories of content:
* Hacking: Websites that depict illicit activities surrounding the unauthorized modification or access to programs, computers, equipment and websites.
* Proxy Avoidance: Websites that provide information or tools on how to bypass Internet access controls and browse the web anonymously, includes anonymous proxy servers.
* Phishing: Counterfeit web pages that duplicate legitimate business webpages for the purpose of eliciting financial, personal or other private information from the users.
* Adult Materials: Mature content websites (18+ years and over) that feature or promote sexuality, strip clubs, sex shops, etc. excluding sex education without the intent to sexually arouse.
* Gambling: Sites that cater to gambling activities such as betting, lotteries and casinos, including gaming information, instruction and statistics.
* Nudity and Risqu[é]: Mature content websites (18+ years and over) that depict the human body in full or partial nudity without the intent to sexually arouse.
* Pornography: Mature content websites (18+ years and over) which present or display sexual acts with the intent to sexually arouse and excite.
* Web Chat: Websites that promote web chat services.
* Instant Messaging: Websites that allow users to communicate in "real-time" over the Internet.
* Malware: Sites that are infected with destructive or malicious software, specifically designed to damage, disrupt, attack or manipulate computer systems without the user's consent, such as a virus or trojan horse.
* Spyware: Sites that host software that is covertly downloaded to a user's machine, to collect information and monitor user activity, including spyware, adware, etc.
The opinion also says that NCRL blocks the Image Search, Video Search and Spam classifications, certain specific image search web sites, and the "personals" section of craigslist.org. NCRL also initially blocked but subsequently unblocked access to Youtube.com, Myspace.com and Craigslist.org (except for the "personals" section).
The plaintiffs included three patrons of the library who claimed that they were unable to access certain websites and also the Second Amendment Foundation (SAF), a Washington nonprofit devoted to issues associated with the right to keep and bear firearms. SAF had been told by members that access to its publication, www.womenandguns.com, was blocked on NCRL's computers.
“The plaintiffs claim that NCRL's Internet filtering policy is overbroad and, more specifically, so overbroad as to rise to the level of a prior restraint in violation of article I, section 5 [of Washington state’s constitution]. They also contend that the filtering policy is an impermissible content-based restriction on speech,” read the opinion.
NCRL, on the other hand, contended that the filtering criterion was designed to be “aligned with its mission and collection policy,” and that it was consistent with the state’s constitutional requirements.
A majority of the court agreed, arguing that because public libraries were not normally considered “a source of pornography and other adult material before the advent of the Internet (and the current dispute),” they should not therefore be “forced to become one just because it makes Internet access available to its patrons.”
Given its limited obligations and resources, they argued, neither is a public library “required to include a book with three pages of pornography and three hundred pages that are not pornographic,” or “access to an Internet site that contains some matter falling within a prohibited category even if other matter on the site does not.”
The filter also is not an agent of prior restraint, the opinion said, since “NCRL's filtering policy does not prevent any speech and in particular it does not ban or attempt to ban online speech before it occurs. Rather, it is a standard for making determinations about what will be included in the collection available to NCRL's patrons.”
In conclusion, the majority said because a public library has traditionally enjoyed broad discretion to select materials to add to its collection of printed materials, “the same discretion must be afforded a public library to choose what materials from millions of Internet sites it will add to its collection and make available to its patrons. A public library has never been required to include all constitutionally protected speech in its collection and has traditionally had the authority, for example, to legitimately decline to include adult-oriented material such as pornography in its collection. This same discretion continues to exist with respect to Internet materials.”
In a strongly worded dissent, Justice Tom Chambers—joined by Justices Richard Sanders and Debra Stephens—opined that the district’s filtering criteria does in fact restrict constitutionally protected speech, reasoning that censoring material on the Internet is not the same as declining to purchase a particular book for the library.
"It is more like refusing to circulate a book that is in the collection based on its content," he wrote.