Showing posts with label TheresaChmara. Show all posts
Showing posts with label TheresaChmara. Show all posts

Sunday, November 10, 2013

ALA Admits Libraries Have Never Been Sued for Blocking Porn

The American Library Association [ALA] has tacitly admitted that no library has been sued for blocking pornography despite its past warnings, thereby clearing the way for libraries to freely block pornography at will.  I am the catalyst in forcing ALA to make this admission, so my analysis of the issue will be key to many communities and libraries considering blocking Internet porn.


Legal Background

The Children's Internet Protection Act was authored by Ernest Istook.  It requires libraries accepting certain federal funding to block certain material from public library computers.  It was signed into law by President Clinton in 2000.  ALA and the American Civil Liberties Union [ACLU] brought suit to prevent the use of Internet filters in public libraries.  Initially, they won.  But in US v. ALA, 539 US 194 (2003), the US Supreme Court ruled that libraries are not open public fora so they have the right to limit content, libraries have traditionally blocked pornography with book selection policies so using an Internet filter to accomplish the same goal is perfectly legal, the use of Internet filters does not violate First Amendment rights, using filters obviates the need for librarians to make individualized decisions, and, based on all that, the Court found CIPA to be constitutional.  In 2013, the Federal Communications Commission sought comments on the entire program and I submitted a comment mainly detailing significant fraud by libraries illegally obtaining CIPA funding that comes from the Universal Service Charge on our telephone utility bills.


Bridling at Losing US v. ALA, ALA Misleads People to Get the Ultimate Win

Bridling at the loss in US v. ALA, ALA has to this day worked to mislead people about CIPA so that they think they are doing the right thing by setting aside CIPA's benefits and instead allowing unlimited pornography in libraries.  This is essentially what the CIPA author himself said:




One Means ALA Misleads is to Claim Lawsuit If Libraries Filter Porn

One of the many means by which ALA misleads is to advise that if libraries choose to filter porn, they may be sued in court.  That has never happened, and ALA has finally admitted as much in response to what was reported about me in the Chicago Tribune:

ALA directly responded to my statement that libraries have never been sued for blocking porn:
  • "ALA Reply to ‘ALA Supports Orland Park Public Library Stance on Viewing Porn," by Sean O'Connor, Chicago Libraries Examiner, 7 November 2013, reprinting in its entirety a response the author received from ALA's Deborah Caldwell-Stone, Esq., the Deputy Director and former Acting Director of the ALA's Office for Intellectual Freedom [OIF], italics in original:
    Notably, materials some consider "pornographic" or "indecent" do not meet the standard for obscene material and are thus fully protected by the First Amendment.
    .... 
    You further quote the article written by Chicago Tribune reporter Taylor Anderson as stating that "No library has ever been sued because someone said 'you blocked my pornography.'"  But schools and libraries have been sued for employing filters to block access to what some deem "pornography," on the grounds that the filters block materials that are not obscene and are constitutionally protected.

    For example, the plaintiffs in PFLAG, Inc. v. Camdenton R-III School District sued their school district because the filters used by the school library unconstitutionally blocked access to web content that promoted gay rights and affirmed gay identity that was not sexually explicit, while allowing access to sites that opposed civil rights for LGBT persons and promoted "ex-gay" ministries.  The school district argued that it had an obligation to protect students from "inappropriate" and "pornographic" material and had broad discretion to choose which materials students may access in the school library.  The court ruled that the school district's use of the discriminatory "sexuality" filter in its library violated the students' First Amendment rights to access information.  The school district agreed to entry of a judgment that required it to stop blocking LGBT websites, submit to monitoring for 18 months and pay $125,000 in attorneys’ fees to the plaintiffs.

    You also say that the article written by Mr. Anderson states that "[t]he ALA's position is that a public library that does not allow an adult visitor to view pornographic photographic stills or videos on a public computer risks being sued."

    This is inaccurate.  In fact, Mr. Anderson stated that "the association says that libraries that restrict the ability to view certain images or videos online put themselves at risk of lawsuits."  Mr. Anderson does not mention pornography, and as the PFLAG v Camdenton case demonstrates, libraries have been sued for blocking access to constitutionally protected materials published online.


ALA Tacitly Admits Libraries Will Not Be Sued For Filtering Out Porn

In responding as she did, ALA OIF Deputy Director Deborah Caldwell-Stone tacitly admitted I was right while tripping over herself to make it appear otherwise.  I will explain below in detail, but basically PLAG v. Camdenton R-III School District stands for the exact opposite of how ALA misrepresents it–in reality, the case was not about filtering out pornography and indeed permits doing so.  ALA also exposes how it will completely misrepresent legal holdings as a means of misleading people into making harmful decisions.  It is an excellent example of how ALA intentionally misleads people on the law.


ALA Needs to Change Your Thinking So You'll Do What It Wants

ALA does not have the power to act in the stead of local interests, so instead it misleads people into thinking whatever it takes to get them to voluntarily sidestep CIPA and US v. ALA.  None other than the CIPA author detailed exactly how and why ALA misleads people.  Definitely read what he said.  In short, "they couch it in different language so you don't fully understand what they truly mean":

In this case ALA wants people to think libraries will get sued if they use Internet filters in libraries to block porn.  The truth is that has never happened and it basically never will.


In the Past, ALA Described Camdenton Differently Than Now and 
Warned of Possible Lawsuit If Libraries Filter Out Porn

For example, a previous time ALA responded within hours to what I exposed about it was when my work was used as support for listing ALA as one of the nation's leading facilitators of pornography:

Within days ALA responded with this which describes the Camdenton case:
  • "Filtering and the First Amendment," by Deborah Caldwell-Stone, Esq., American Libraries, 2 April 2013, hyperlink in original (and corrected):
    Recent court filings, news reports [NOTE: that would be international news that ALA was a leading porn facilitator thanks to my research], and online posts, however, have begun to shine a spotlight on libraries’ filtering policies and practices.  According to legal complaints, some libraries are denying users access to websites that discuss Wicca and Native American spirituality; blacklisting websites that affirm the lesbian, gay, bisexual, and transgender (LGBT) communities while whitelisting sites that advocate against gay rights and promote "ex-gay" ministries; and refusing to unblock webpages that deal with youth tobacco use, art galleries, blogs, and firearms.  School librarians, teachers, and even Department of Education officials are openly complaining that the overzealous blocking of online information in schools is impairing the educational process.
    ....
    Theresa Chmara, general counsel for ALA's Freedom to Read Foundation, has explained why librarians and trustees should not rely on the Bradburn decision for guidance in crafting their internet policies.
And that in turn links to another ALA attorney, Theresa Chmara, who again describes the Camdenton case and who threatens the possibility of lawsuit for blocking porn or, as ALA calls it, "constitutionally protected material."  Notice too how she defines CIPA to exclude obscenity and child pornography but not pornography:
  • "Blocking Access to Protected Speech Can Lead to Litigation and Legal Fees," by Theresa Chmara, Esq., American Libraries, 24 July 2012:
    In another recent case involving a school library, the US District Court for the Eastern District of Missouri ... held on February 15 that the school district in Camdenton, Missouri, had unconstitutionally blocked websites that support or advocate on behalf of lesbian, gay, bisexual, and transgender (LGBT) people while permitting students access to websites that condemn homosexuality or oppose legal protections for LGBT people.

    The district court held that the library's use of an "anonymous" system for requesting that sites be unblocked was stigmatizing and ineffective if students did not know what had been blocked.  After the court's finding of unconstitutionality, the school district agreed to stop blocking LGBT websites, submit to monitoring for 18 months, and pay $125,000 in attorneys' fees.

    Libraries should continue to be wary of using internet filtering systems that block constitutionally protected material for adults or minors.  CIPA only requires filters that block access to visual images of obscenity, child pornography, and, for minors, material deemed harmful to minors.  If libraries use 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, those libraries may open the door to years of litigation and significant legal expenses.


ALA Creates New Theory On Blocking What Is "Deemed" To Be Pornography

With that history in mind, let's turn back to the recent ALA response.  ALA's Deborah Caldwell-Stone cites that Camdenton case where material about homosexuality and/or gay rights was filtered out in a school.  She argues the people merely "deemed" that they were blocking porn:
You further quote the article written by Chicago Tribune reporter Taylor Anderson as stating that "No library has ever been sued because someone said 'you blocked my pornography.'"  But schools and libraries have been sued for employing filters to block access to what some deem "pornography," on the grounds that the filters block materials that are not obscene and are constitutionally protected.
For example, the plaintiffs in PFLAG, Inc. v. Camdenton R-III School District sued their school district because the filters used by the school library unconstitutionally blocked access to web content that promoted gay rights and affirmed gay identity that was not sexually explicit, while allowing access to sites that opposed civil rights for LGBT persons and promoted 'ex-gay' ministries.
But that is a case about blocking, as she admits, "gay rights and affirmed gay identity that was not sexually explicit," not about blocking pornography!  And filtering manufacturers claiming gay rights sites were pornographic as a means to discriminate does not make them pornographic.


ALA Claims Libraries Sued For What Is "Deemed" To Be Pornography; Cites Camdenton

Notice how she now claims "schools and libraries have been sued for employing filters to block access to what some deem 'pornography'" using Camdenton as the example when she needs to mislead people about my saying libraries are never sued for blocking porn.


ALA's Previous Statements on Camdenton Made No Such Claim of Anything "Deemed" Pornography

Contrast that with her own previous writing on Camdenton where pornography is not the issue; instead the issue is described by her as "blacklisting websites that affirm the lesbian, gay, bisexual, and transgender (LGBT) communities while whitelisting sites that advocate against gay rights and promote 'ex-gay' ministries."

Confirming this is the description of Camdenton she links to fellow attorney Theresa Chmara.  Again, pornography is not the issue.  Instead it is "websites that support or advocate on behalf of lesbian, gay, bisexual, and transgender (LGBT) people."


"Years of Litigation and Significant Legal Expenses"

Chmara defines CIPA to exclude protection from pornography then goes on to threaten suit for blocking porn: "If libraries use 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, those libraries may open the door to years of litigation and significant legal expenses."  And she says more than just open the door to litigation.  No, she uses scare tactics, "years of litigation and significant legal expenses," for nonexistent legal cases.  She completely leaves out that libraries that do not filter really do face years of litigation and significant legal expenses for librarians who are sexually harassed as a result of unfettered porn viewing occasioned by library policy direct from the ALA.  I'll be addressing that issue in a separate post.


The Height of Deception

Deborah Caldwell-Stone knows the true issue in Camdenton is blocking LGBT sites because she said so in the past.  She can produce no other case to support her view that libraries have been sued for blocking porn.  So she suddenly recasts Camdenton as a suit against blocking pornography and claims "schools and libraries have been sued for employing filters to block access to what some deem 'pornography.'"  Is this the height of deception or what?  This in response to my accurately reporting that no library has been sued for blocking porn.


Past Camdenton Media Reports Show Exactly the Opposite of What ALA Is Now Claiming

Here is some press on the matter.  Notice ALA's Deborah Caldwell-Stone is dead wrong.  Pornography was not the issue, in fact blocking "explicit material" and "pornography"was perfectly acceptable, even to the ACLU:
  • "School District Told to Replace Web Filter Blocking Pro-Gay Sites," by Michael Winerip, The New York Times, 26 March 2012:
    this particular filter, which along with blocking obscenity also discriminates against content supportive of gay people....
  • "Camdenton School District Required to Remove LGBT Web Filters," by Rachel Lichtman, PFLAG, 13 April 2012:
    The lawsuit was filed after multiple warnings that the district's website filtering software discriminated against LGBT content, including the websites of the plaintiffs.  If a student tried to access a site related to LGBT support such as gay-straight alliances or local PFLAG chapters, they were treated as if they were attempting to access explicit material.  However, anti-LGBT sites such as the National Organization for Marriage were allowed to be viewed.
  • "Court Orders Missouri School District to Stop Censoring LGBT Websites," by media@aclu.org, American Civil Liberties Union, 15 February 2012:
    A federal district court ruled today that the Camdenton R-III School District must stop censoring web content geared toward the lesbian, gay, bisexual and transgender (LGBT) communities through discriminatory filtering software. The ruling orders the district to not block content based on the viewpoints expressed by the website.
    ....
    “The court correctly recognized the constitutional rights of all students to viewpoint-neutral access to information,” said Joshua Block, staff attorney with the ACLU LGBT Project. “It is absolutely possible to protect children from sexually explicit content while also protecting their First Amendment rights. Like thousands of other school districts across the country, Camdenton R-III will now begin using a filtering system that blocks pornography without discriminating against LGBT-related content.”
In a case ALA cites to counter my statement in the Chicago Tribune that no library has ever been sued for blocking porn, ACLU LGBT Project's attorney said, "It is absolutely possible to protect children from sexually explicit content while also protecting their First Amendment rights."  The exact opposite of what ALA falsely argues.  As the ACLU put it, "Like thousands of other school districts across the country, Camdenton R-III will now begin using a filtering system that blocks pornography without discriminating against LGBT-related content."  So in a case ALA cites to say blocking pornography resulted in a legal suit, the ACLU attorney says blocking pornography is perfectly acceptable as long as non-pornographic LGBT-related content is not blocked.

Camdenton does not support the ALA's argument that I was wrong and that libraries have been sued for blocking porn.  Rather, it is the opposite.  It evidences the accurate information I provided that no library has been sued for blocking porn nor is it likely to.  Such suits are extremely unlikely given legal precedent and common sense.


If Inapposite Camdenton Is ALA's Only Case to Show For Its Lawsuit Claim, Then It Has Tacitly Admitted No Library Has Yet Been Sued For Blocking Pornography

So if Camdenton is the only evidence ALA can produce to try to support its false claim that libraries might be sued for blocking porn, and if it supports that assertion by deceptively rewriting history including its own, then it has just tacitly admitted no library had yet been sued for blocking porn.  So let's say loud and proud what ALA does not want people to know, namely, LIBRARIES HAVE NEVER BEEN SUED FOR BLOCKING PORN.  BLOCK PORN AND HISTORY SHOWS YOU WILL NEVER BE SUED DESPITE ALA OR ACLU CLAIMS OR THREATS OTHERWISE.


Effect of ALA Propaganda on Local Libraries

The effect of ALA propaganda is evident in the damage it is causing in local libraries and resultant harm being done in local communities.  Take Orland Park Public Library [OPPL], for example, right in the shadow of Chicago-based ALA.  As revealed by Megan Fox and Kevin DuJan, the library refuses to block porn claiming there's a First Amendment right to view porn on library computers, as if US v. ALA didn't exist.

And, right in line with Deborah Caldwell-Stone trying to counteract what I said in the Chicago Tribune with her newly made up and knowingly false legal analysis of the Camdenton decision, the library believed it would be sued if it blocked porn with filters.

"She said that they could get sued like other libraries that had been sued in the past and lost."  Who said that?  Let's look at one OPPL employee/whistleblower's statement and detailed description of the unfettered porn in the OPPL, the false claim that the library would be sued if it blocked porn, and her own investigation finding out that was completely false.  Here's just her realization she's been lied to about lawsuits for blocking porn, but take the time to read her entire post–it is sadly enlightening:
  • "Liars and Tigers and Porn... Oh My!," by Linda Zec, Life According to Linda, 9 November 2013, emphasis and hyperlink in original:
    The next time I was there early enough I went in to talk to Director Wsol, and I remember sitting in her office.  I told her about what I had seen, she told me there was nothing that could be done.  Regardless of our thoughts of these individuals, Freedom of Speech prevails.  I told her they should put a filter on the computers in the Adult area, but she explained they could not.  She said that they could get sued like other libraries that had been sued in the past and lost.  She was nice about it, but said that that was how it was going to have to stay...unfiltered.  If I felt uncomfortable, my only other option was to quit, but she said it nicely.  I was dumbfounded, but walked out believing her about the legality of porn in the library.  (Now to this day, I am unsure if Director Wsol actually believed that there were actual cases of libraries being sued, or just used that line to shut me up and make me go away.)

    This is from one of the Birmingham Public Library
    librarian sexual harassment cases but it's similar
    to what is being revealed about OPPL.
    I went home and began to internet research about porn and the legality of it on the library computers.  Keeping in mind that this online research was almost 10 yrs. ago, I found no lawsuits regarding freedom of speech and not allowing a patron to watch porn on the library premises.  Granted, the internet was not as filled with information as it is now, but still after all of my online hunting I found nothing online that said libraries had been sued.  I went to talk to Mary Weimar (whom I tried so hard to be friendly with, but I was told by other co-workers "watch your back, Linda").

    I appealed to Mary about what I had seen and told her that I found nothing on the internet about libraries being sued.  She said the same as Sharon (I am convinced that the two had talked about this and me possibly being a problem), and she assured me it was out there, and if I was uncomfortable with it, I could leave my position. (She did not tell me to quit directly, but nicely suggested that there would not be any hard feelings, and don't let the door hit ya where the Good Lord split ya, basically.)  I told her that I did not think that taxpayers were aware of what they were paying for, that the public had no idea and that they should know.  She "in her nice way" basically told me to leave it alone.  I got up and returned to the computer area once again feeling defeated.  But if libraries had been sued as she and Sharon told me, then it MUST be true??  (According to Safelibraries.org, I found out with this current media fodder that NO library has ever been sued, period.  Never.  Not once.  So now I think: Was I intentionally lied to by Director Sharon Wsol and Asst Director Mary Weimar to just shut me up and make me (and the porn issued) go away??)


Challenge to Debate ALA's Caldwell-Stone or Chmara

Any Chicago media want me to debate ALA's Deborah Caldwell-Stone or Theresa Chmara directly on live media?  I'm game.  And I'm the perfect person to do it–the CIPA author called me a "trusted source" on exposing ALA propaganda.  There's a lot of propaganda to expose.  I'll be writing many more posts about OPPL and ALA's recent false statements.  Please follow along on any of my social media sites for the latest revelations and follow Megan Fox @IntolerantFox.


NOTE ADDED 11 NOVEMBER 2013:

Minor update to account for recent name change by someone named in my post.


NOTE ADDED 12 NOVEMBER 2013:

Picture removed in respect of first comment.



On Twitter:  @ACLU @ACLULGBT @FTRF @IntolerantFox @Istook @LindaZec @OIF @OrlandPkLibrary @PFLAG @Porn_Harms @TaylorWAnderson

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Location: Chicago, IL, USA

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).

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