AGO 00-29.

Case Date:April 25, 2000
Court:South Carolina
South Carolina Attorney General Opinions 2000. AGO 00-29. 83April 25, 2000OPINION NO. 00-29The Honorable Michael L. Fair Senator District No. 6 501 Gressette Building Columbia, South Carolina 29202 Dear Senator Fair: You have asked for an opinion concerning the constitutionality of Internet filters. You state the following:
[t]he Greenville County Library has been trying to develop a policy that would protect children from exposure to pornography while not violating anyone's First Amendment rights.
I have suggested that the library put filters on their computers that screen pornography. These filters can be purchased and have been proven to be effective in screening pornography. Those who oppose filters use the First Amendment as leverage for their positions that libraries should not place filters on their computers.
The questions are: 1. Do public libraries have an obligation to provide computers? 2. Do public libraries have an obligation to provide Internet service? 3. Do public libraries have the right to use filters for any purpose including but not limited to filters to remove pornography?
Law / AnalysisTo our knowledge, only one case to date has addressed the constitutionality under the First Amendment of Internet filters. In Mainstream Loudoun v. Board of Trustees, 2 F.Supp.2d 783 (E.D. Va. 1998), an association of adult patrons sued the Board of Directors of the Loudoun County Public Library following the Library's installation of site-blocking software on all its computers, pursuant to its newly adopted "Policy on Internet Sexual Harassment." The policy required the filtering of all "child pornography and obscene material (hard core pornography)" and "material deemed Harmful to Juveniles under applicable Virginia statutes and legal precedents (soft core pornography)." Id. at 787. The Library Board purchased a software program known as "X-Stop," which used predetermined criteria for choosing which sites were blocked. The Library also implemented an unblocking policy in which patrons, after denied access to a site, would submit written requests which included their name, telephone number, and a detailed explanation of why they wanted access to the site. Id. at 797. The plaintiffs alleged that this policy blocked "access to protected speech, such as the Quaker Home Page, the Zero Population Growth website, and the site for the American Association of University Women-Maryland." Id. at 787. Plaintiffs also claimed that the blocking decisions were based upon no clear criteria and that the unblocking procedure "chills plaintiffs' receipt of constitutionally protected materials." Id. The Court rejected the Library's argument that restricting access to selected materials is merely a decision not to acquire materials rather than one to remove materials. The Court stated as follows:
[b]y purchasing Internet access, each Loudoun library has made all Internet publications instantly accessible to its patrons. Unlike an interlibrary loan or outright book purchase, no appreciable expenditure of time or resources is required to make a particular Internet publication available to a library patron. In contrast, a library must actually expend resources to restrict Internet access to a publication that is otherwise immediately available. In effect, by purchasing one such publication, the library has purchased them all. The Internet therefore more closely resembles plaintiffs' analogy of a collection of encyclopedias from which defendants have laboriously redacted portions deemed unfit for library patrons.
Id. at 793-94. The Court further distinguished the public library from a high school library motivated by curricular justifications to restrict access to certain information. In the view of the Court, the First Amendment applies to and limits the discretion of the Library to "place content based restrictions upon access to constitutionally protected materials within its collection." Id. at 794. The84 Court concluded that the Library could not place content-based restrictions on Internet speech (through the use of filtering software) "absent a compelling state interest and means narrowly drawn to achieve that end." Id. at 795. The State possessed a compelling interest, it was argued, in prohibiting the transmission of obscenity, child pornography, and material harmful to juveniles under applicable Virginia statutes. The Court noted that obscenity and child pornography find no protection in the First Amendment. However, the software restricted access to information that was neither obscene nor pornographic such as the Quaker's website. Furthermore, in...

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