FC: Libraries can legally filter the Internet, law review article says

[Declan McCullagh <declan () well com>]

See, as background:
http://www.politechbot.com/cgi-bin/politech.cgi?name=loudoun

----- Forwarded message from Msnadel () aol com -----

From: Msnadel () aol com
Subject: Texas Law Rev. article on Internet Filtering
To: declan () wired com
Date: Wed, 5 Jul 2000 22:43:34 EDT
X-Mailer: AOL 4.0 for Windows 95 sub 107

Declan
Just thought that some of those on your list might be interested in my 
just published Texas Law Review article

"The First Amendment's Limitations on the Use of Internet Filtering 
in Public and School Libraries: What Content Can Librarians Exclude?"  

A slightly revised version of it is available at 
<http://papers.ssrn.com/paper.taf?abstract_id=230834>.  

I've included an abstract of the 40-page piece below
Comments, criticisms, etc. are welcome.

mark nadel


ABSTRACT

This article asserts that the First Amendment permits libraries to use 
private-sector software to filter Internet access as long as the filters do 
not attempt to favor one socio-political viewpoint over another.  It 
challenges the 1999 federal court's finding in the Loudoun County Library 
case that libraries offering Internet access face no economic constraint on 
offering unlimited access.  It criticizes that decision as faulty economic 
analysis as well as disputing the Loudoun court's public forum analysis.  The 
article contends that librarians may use filters to manage patrons' use of 
the library's limited resources to maximize computer terminal availability 
for accessing the categories of content chosen by librarians to be in their 
collections.  Thus, libraries are free to block access to websites providing 
material outside that scope, including "protected speech," e.g., shopping 
services and non-obscene photos advertised as XXX.  Libraries may also use 
removable filters to empower parents to diminish their children's access to 
adult material.  The article argues, however, that the First Amendment 
requires libraries using filters 1) to retain "final say" over selection 
decisions, 2) to understand the criteria that the filter uses to exclude 
content, and 3) to have the resources to correct the viewpoint discrimination 
that filters are likely to generate.  Furthermore, it concludes that the 
issue of library filtering of Internet access is not so much an issue of 
cyberspace law as one of the First Amendment's more general limitations on 
librarian discretion in the selection of content.

----- End forwarded message -----

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