The Washington State Supreme Court today held public libraries can filter Internet access for all patrons without violating the state Constitution. In a 5-1-3 decision the Court said filtering the Internet is not like removing books fromlibrary shelves, but rather more like selecting which books to purchase for the library’s collection. Had the Court found Internet filtering was more like removing books, the Court would have applied a stricter standard of scrutiny. The dissent argued censoring material on the Internet is not the same as declining to purchase a book, but rather more like refusing to circulate a book in the collection based on content.
The public library’s Internet access was filtered by FortiGurad, which used algorithms and human review to block 76 categories of websites. Some of the blocked content included Instant Messaging, “Adult Materials,” and “Nudity and Risque.” The program also blocked Image Search, Video Search, and Craigslist.com. Plaintiffs, who included library patrons and a nonprofit foundation sponsoring a website called womenandguns.com, alleged the library’s filtering policy was overbroad and therefore an unconstitutional prior restraint. The Court disagreed because the filtering did not prevent online speech before it occurred. Instead the Court said the policy was a standard for making determinations about what would be included in the libary’s collection available to patrons.
Article I, section 5 of the Washington State Constitution provides, “[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” The Court noted the Washington Constitution offers more speech protections than the First Amendment. For example, the Washington Constitution requires a “compelling government interest” to impose time, place, or manner restrictions on speech while the First Amendment only requires a “substantial government interest.” Nevertheless the Court decided the case based primarily on U.S. Supreme Court precedent including United States v. American Library Ass’n, 539 U.S. 194 (2003). In that decision the Court held public forum analysis (and therefore strict scrutiny) does not apply to public library decisions about Internet access.
The decision is Bradburn v. N. Cent. Reg’l Library Dist.
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