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Thursday, April 25, 2013

How to Filter Public Library Computers: Bradburn v NCRL Shows Libraries Need Not Approve Unblock Requests

It is legal to filter public library computers.  Libraries must unblock the filters upon request, in certain circumstances.  Must they do so unconditionally and without first ensuring compliance with library policy?  No.  Libraries may take the time needed to evaluate whether the site to be unblocked complies with library policy.


"Incredibly Important Decision for Public Libraries Throughout the Nation" - No Need to Unblock Porn Sites

 I publish below, for the first time anywhere, the full text of the court order allowing librarians to review computer filter unblock requests to ensure compliance with library policy.  It is "an incredibly important decision for public libraries ... throughout the nation."

In other words, public libraries may not only legally block pornography, but they need not unblock such Internet sites!  The Bradburn v. NCRL Order, shown below in full, evidences this very clearly.


ALA Claims Case Has Little Value

On the other hand, the American Library Association argues the Bradburn case is of little value and only applies to that one library district:
While the lawsuit was pending, the library changed its filtering software and amended its filtering policy.  Six years after the initial filing of the lawsuit, the federal district court ruled in an unpublished decision that the library's filtering policy did not violate the constitution, in part because the branch libraries are "relatively small in size and only one has a partition separating the children's portion of the library from the remainder of the library."  As an unpublished decision reviewing one particular set of facts in one library system, the decision has limited precedential value.


NCRL Director
Dean Marney
The Bradburn Case Gives Deep Insight on Judicial Thought

Yes, there may be limited precedential value, but it provides a deep insight into how courts might look at the issue.  Evidencing how well the judge analyzed the case, the ACLU would not even appeal its loss:
As the NCRL library director, Dean Marney, concluded:
Director Dean Marney said, "Common sense and taxpayers are the winners in this case.  The courts have affirmed that public libraries have the right to be libraries.  Libraries should never be forced to use public funds to provide access to child pornography or to become illegal casinos.  Libraries should be sanctuaries for people of all ages."
Source:


Winning Library Director Outs ALA "Dogma"

Further, the NCRL library director, Dean Marney, has specifically outed the ALA as promoting false "dogma" to push its way (similar to what CIPA author Ernest Istook exposed about ALA misleading communities).  See:


ALA Forced by Bradburn/Marney to Admit Library Filters Work

So effective was Dean Marney in making and winning his point that even the ALA itself was forced to admit he was right, library filtering software now works effectively, and false breast cancer blocking claims are old excuses.  Under the circumstances, seeing the ALA spinning again is no surprise.  See:


Dean Marney Takes On ALA Propaganda Directly

Perhaps the most authoritative voice on the Bradburn case was the very man who exposed the ALA dogma and forced the ALA to admit filters work and it is time to stop using the old excuses.  He had direct interaction with the ALA in its American Libraries magazine after ALA promoted its false message that the Bradburn case means very little, and ALA now makes it official diktat.  Quite the contrary, the case sets an example for municipalities throughout the entire nation.  As Dean Marney said, "To say the case doesn't matter now just doesn't make sense."

Let's hear from Dean Marney himself responding to the ALA's attorney Theresa Chmara who is trying to minimize the impact of the case.  (By the way, notice Dean Marney and I both responded to the ALA, and ALA censored my comments with ad hominem remarks about defamation and unsolicited advertising, which I did not do.  And "FTRF" is a creation of and part of the ALA.):
RESPONSE TO ‘WHY RECENT COURT DECISIONS DON’T CHANGE THE RULES O

Theresa Chmara's "Why Recent Court Decisions Don't Change the Rules on Filtering" is correct in stating that the courts in ALA v. CIPA and Bradburn et al v. North Central Regional Library have affirmed that "to fulfill their traditional missions, public libraries must have broad discretion to decide what material to provide to their patrons."

Bradburn et al v. NCRL is an incredibly important decision for public libraries in Washington State and throughout the nation.  The Washington State Supreme Court and the Federal District Court each affirmed that an Internet Use Policy, fairly applied and offering web site unblocking alternatives, is a reasonable approach to collection management and one that fully meets constitutional standards.  We at North Central Regional Library are proud to offer such a policy, indeed a policy that protects kids, adults, and employees from a hostile environment while offering quality resources to a wide range of patrons having diverse interests.

It is interesting that Ms. Chmara does not mention that the FTRF was involved in Bradburn virtually from inception.  Before the case was filed, the ACLU, representing Plaintiffs, briefed the FTRF.  The former president of the FTRF and a past Board Member were factual witnesses in the case.  To say the case doesn't matter now just doesn't make sense.

Ms. Chmara says the federal opinion wasn't published.  Does that matter?  The Washington Supreme court's opinion certainly was.  Does Ms. Chmara genuinely believe the federal decision will have no impact on the important national discussion occurring on the subject?  Both Bradburn decisions are extremely important and should inform the decisions of other libraries considering the deployment of filtering software.

People often ask why we fought the Bradburn case to affirm our Internet Policy.  I have no trouble telling them that it wasn't a choice–we care about our mission, we care about the people that use our libraries, and we care about our staff.

Dean Marney
Director
North Central Regional Library
Wenatchee, WA 98801

Submitted by Dean Marney (not verified) on Mon, 07/30/2012 - 12:43.

No Need for Governments to Pierce the Veil of Autonomy

To governmental leaders seeking to rein in their local libraries acting outside the law (by behaving as open public fora instead of quasi public fora, etc.), which you may certainly do without piercing the veil of autonomy, don't Dean Marney's words bring warmth to your hearts and ideas to your minds?  "Both Bradburn decisions are extremely important and should inform the decisions of other libraries considering the deployment of filtering software."


ALA Deception On "Years of Litigation and Significant Legal Expenses"

In another example of how deceptive is the ALA, look at the next paragraph in "Libraries and the Internet Toolkit;  Legal Issues: CIPA & Filtering" from the ALA:
In summation, libraries considering the use of filtering software should consult their legal counsel prior to any such deployment.  Libraries that employ filters that block constitutionally protected material deemed harmful to minors and do not allow adults to disable filters, or fail to provide an effective unblocking system, may open the door to years of litigation and significant legal expenses.
Well, that one NCRL case was years of litigation.  One.  But what the ALA does not advise is that there are considerably more cases that occur as a result of not filtering and the harm that the resultant pornography brings to the community, including—sexually harassed librarians.  Sadly, ALA never helps them.

By the way, the ALA attorney says libraries must "allow adults to disable filters."  CIPA does not allow that.  Only librarians may disable the filters.  It is just more deception.


Librarian Sexual Harassment Cases Mean Libraries Should Consider Using Filters

Such sexual harassment cases are more frequent and result in far greater harm and liability than someone who cannot get his porn at taxpayer expense.  But the ALA, seeking to mislead local governments, only fear mongers about "years of litigation and significant legal expenses" while completely leaving out much more frequent and serious librarian sexual harassment cases due to a lack of filtering.  See a few examples of the sexual harassment cases ALA does not reveal while it uses scare tactics on filtering cases:

So there we see a number of sexual harassment cases, and for big money, but the ALA does not disclose these when it threatens filtering lawsuits will be a drag.  Indeed, libraries should consider using filters just to prevent sexual harassment cases.


Conclusion

In conclusion, the Bradburn case sets a national example of the means by which public libraries may legally and effectively filter out pornography.  In contrast, ALA misleads by minimizing the effect of Bradburn and using fear tactics on municipal liability.

Most importantly, the message for municipalities, as Dean Marney says, is that you too can be "proud to offer ... a policy that protects kids, adults, and employees from a hostile environment while offering quality resources to a wide range of patrons having diverse interests."


Bradburn v. NCRL

Below is that Bradburn v. NCRL Order, published in full text here and nowhere else, hyperlinks removed and caption and footnotes repositioned.  (Here is a PDF version of the original Bradburn v. NCRL Order I have published below, also at tinyurl.com/DeanMarneyWins):
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON


 SARAH BRADBURN, PEARL 
CHERRINGTON, CHARLES HEINLEN, 
and SECOND AMENDMENT 
FOUNDATION,

                          Plaintiffs,

                v.

 NORTH CENTRAL REGIONAL LIBRARY 
DISTRICT,

                          Defendant.

 __________________________________________
NO. CV-06-0327-EFS
ORDER GRANTING NCRL'S MOTION 
FOR SUMMARY JUDGMENT, DENYING 
PLAINTIFFS' MOTION FOR SUMMARY 
JUDGMENT, AND CLOSING FILE

 __________________________________________

      Following the Washington Supreme Court's certification ruling, the question remaining from the parties' summary judgment motions, ECF Nos. 28 & 39, is whether Defendant North Central Regional Library District's (NCRL) internet-filtering policy is overbroad or a content-based restriction thereby violating the First Amendment to the U.S. Constitution.  After reviewing the submitted materials, considering the relevant authority, and hearing from counsel during an October 25, 2011 hearing,[1] the Court is fully informed.  For the reasons given below, the Court grants NCRL summary judgment and denies Plaintiffs summary judgment.

 A.  Facts[2]

      With the assistance of federal funding, NCRL provides Internet access at its twenty-eight libraries.  Because Congress mandates that a library receiving federal funds in order to provide Internet access must restrict patrons' Internet access to obscene and child pornographic materials, NCRL utilizes a filter (FortiGuard) to restrict its patrons' Internet access to such materials.  See 20 U.S.C. § 9134(f) (Children's Internet Protection Act (CIPA), which also permits a library to restrict additional materials).  According to both its Internet Public Use Policy and Collection Development Policy (collectively, "Policy"), NCRL sets FortiGuard's filtering parameters to filter web pages and sites that depict hacking, phishing, proxy avoidance, malware, and spyware; display nudity; promote sexuality; or allow gambling.  Not all of the blocked web pages and sites contain constitutionally-unprotected speech.  Therefore, as a result of the FortiGuard filter, constitutionally-protected speech is blocked and patrons, even adult patrons, are unable to view the material.

      To help reduce the number of mis-blocked web pages and sites, NCRL allows patrons to submit requests to unblock a specific web page or site.  If NCRL believes that a blocked web page or site is appropriate for viewing by all of its patrons, it adjusts FortiGuard's parameters so that the web page or site is unblocked for future Internet use.

      Through this lawsuit, Plaintiffs challenge the constitutionality of the Policy under both the Washington and U.S. Constitutions.  On September 30, 2008, the Court certified the Washington-constitutional question to the Washington Supreme Court.  ECF No. 97.  On June 7, 2010, the Washington Supreme Court answered the certified question, finding that "a public library may, consistent with article I, section 5 of the Washington State Constitution, filter Internet access for all patrons without disabling the filter to allow access to web sites containing constitutionally protected speech upon the request of an adult library patron."  ECF No. 110 at 31.

      Now remaining for the Court to address is whether NCRL'S decision to not disable the Internet filter at the request of an adult patron violates the First Amendment to the U.S. Constitution.

 B. Authority and Analysis

      The First Amendment commands:  "Congress shall make no law . . . abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievance."  U.S. Const. amend. I.  The government can violate the First Amendment in many ways, including enacting a statute that is overbroad or impermissibly regulates the content of speech.[3]  Ashcroft, 535 U.S. at 244.  The government restriction may either restrict speech itself or restrict access to the speech:  both forms of restrictions may violate the First Amendment.  United States v. Playboy Entm't Gp., Inc., 529 U.S. 803, 812 (2000).

      The parties agree that NCRL, a government entity, restricts its patrons' access to speech on the Internet.  The parties disagree as to what level of judicial scrutiny the Court is to apply to NCRL's access-to-speech restriction.  As explained below, based on U.S. Supreme Court and Ninth Circuit decisions, the Court concludes it must apply rational review to the Policy.

      First, a majority of the Supreme Court ruled that public-forum analysis is not used to determine whether a public library has appropriately exercised its collection-decision-making authority.  United States v. Am. Library Ass'n, 539 U.S. 94, 205 & 215-16 (2003) (hereinafter "ALA").  Second, the Ninth Circuit held that rational review is used where the "government provides a public service that, by its nature, requires evaluations of and distinctions based on the content of speech."  Ass'n of Christian Sch. Int'l v. Stearns, 362 Fed. Appx. 640, 643 (9th Cir. 2010) (unpublished opinion).

      As a public library, NCRL pursues the "worthy missions" of facilitating learning, research, and recreational pursuits.  ALA, 539 U.S. at 203.  It is undisputed that to fulfill these missions, NCRL is not required to provide "universal coverage" and enjoys "broad discretion to decide what material to provide to [its] patrons."  Id. at 204 (internal citation removed).  Plaintiffs argue that NCRL's broad discretion is limited to its written materials because the grant of this discretion is based on a library's space and fiscal limitations.  However, these limitations are not the only rationale for granting a library broad discretion to make "content-based judgments when deciding what private speech to make available to the public."  Id. at 204.  A library's "need to exercise judgment in making collection decisions depends [also] on its traditional role in identifying suitable and worthwhile material; [and] it is no less entitled to play that role when it collects material from the Internet than when it collects material from any other source."  Id. at 208.  Given the vast, ever changing, and almost unlimited amount of information available on the Internet, the Supreme Court recognized that "libraries cannot possibly segregate, item by item, all the Internet material that is appropriate for inclusion from all that is not."  Id.  Accordingly, NCRL is required to evaluate its patrons' Internet access based on the speech's content.  Therefore, the Court subjects NCRL's filtering process to rational review.

      Scrutinizing the undisputed facts under rational review, the Court finds NCRL's use of FortiGuard to filter its patrons' Internet access and its decision to not disable the filter upon an adult patron's request complies with the First Amendment.  It is reasonable for NCRL to develop an Internet policy that can be implemented consistently throughout its twenty-eight libraries, and it did so by implementing the Policy.  NCRL'S libraries are relatively small in size and only one has a partition separating the children's portion of the library from the remainder of the library.  Blocking Internet sites and pages that contain constitutionally-protected material deemed suitable only for adults helps ensure that the environment at NCRL libraries is consistent with its mission of providing learning and research opportunities for individuals of all ages.  This is a legitimate government interest.

      And NCRL's practice of requiring a patron to request that a particular web site or page be unblocked is an efficient and rationale way for NCRL to determine whether that web site or page is consistent with its policies and mission, especially in light of the Internet's continuous change.  NCRL simply does not have the resources to have its staff review the vast and limitless amount of sites and pages on the Internet to determine whether they are consistent with its policies and mission.  NCRL'S unblocking-request process reasonably accomplishes its policies and mission, while at the same time complying with CIPA.

      The Court acknowledges that this process may frustrate some adult patrons.  However, without the funding provided by CIPA, NCRL likely could not provide any Internet access to its patrons.  This would be a great disservice to the NCRL patrons, many of whom live in rural areas where reliable, affordably-priced Internet access may be difficult to obtain.

 C. Conclusion

      Because NCRL's Policy, including not disabling the Internet filter at the request of an adult patron, is reasonable, there is no overbreadth or impermissible content-based First Amendment violation.  For the above given reasons, IT IS HEREBY ORDERED:

      1.   NCRL's Motion for Summary Judgment, ECF No. 28, is GRANTED.
     2.   Plaintiffs' Motion for Summary Judgment, ECF No. 39, is DENIED.
     3.   Judgment is to be entered in NCRL's favor with prejudice.
     4.   This file shall be CLOSED.

      IT IS SO ORDERED.  The District Court Executive is directed to enter this Order and provide copies to counsel.

      DATED this   10th      day of April 2012.

             s/ Edward F. Shea            
            EDWARD F. SHEA 
            United States District Judge


      [1] Duncan Manville appeared on behalf of Plaintiffs Sarah Bradburn, Pearl Cherrington, Charles Heinlen, and the Second Amendment Foundation.  Thomas Adams appeared on NCRL's behalf.

      [2] The parties agree that the detailed undisputed facts contained in the Court's prior Order, ECF No. 96, still apply.  Accordingly, the Court only provides the basic facts herein.

      [3] The freedom of speech has limits as certain types of speech, such as defamation, obscenity, and pornography produced with children, are unprotected by the First Amendment.  Ashcroft v. Free Speech Coal., 535 U.S. 234, 245-56 (2003).

 Q:\Civil\2006\0327.post.certif.frm

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