Bradburn v. North Central Regional Library District case [right now there is a problem with the Court's website, I'll supply links to the opinions when I can be certain that they'll work] has been decided by the Washington Supreme Court. On the one hand, it’s a credit to the US legal system that these cases are heard and issues surrounding freedom of speech are examined as if it’s an important legal concept - in contrast to Australia, where there’s no constitutionally enshrined freedom of speech. On the other hand, I am disappointed with the majority’s opinion and line of reasoning. I hope there will be a different result when the case returns to the Federal Court system.
The majority of the Washington Supreme Court applied the decision in United States v. American Library Association 539 U.S. 194 (2003). But as the dissenting opinion pointed out, one key fact was very different in Bradburn v. NCRL:
I respectfully disagree with the majority that United States v. American Library Ass'n, 539 U.S. 194, 123 S. Ct. 2297, 156 L. Ed. 2d 221 (2003), supports upholding the policy's constitutionality under either the federal or state constitution. Even accepting for the moment that these libraries are not a limited public forum, eight justices found the ability of a patron to disable the filter constitutionally critical. Writing for a four justice plurality upholding CIPA, Justice Rehnquist noted constitutional concerns about the software blocking "are dispelled by the ease with which patrons may have the filtering software disabled. When a patron encounters a blocked site, he need only ask a librarian to unblock it or (at least in the case of adults) disable the filter." Id. at 209. Justice Kennedy was even more pointed, beginning his concurrence by saying, "If, on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay, there is little to this case." Id. at 214 (Kennedy, J., concurring).
But the NCRL’s practice, as presented in the arguments and the opinions, does not include unblocking material “without significant delay”.
The other thing that troubles me about these cases is the argument that internet filtering is a collection development decision. The argument follows that just as a library has the right to develop and maintain a collection development policy that does not include pornography, then it is exactly the same thing for a library to implement a filter to exclude pornography from its library. I don’t think that web filtering is another aspect of collection development. As the minority opinion explains:
But censoring material on the Internet is not the same thing as declining to purchase a particular book. It is more like refusing to circulate a book that is in the collection based on its content.
The collection development analogy breaks down when its leads to active exclusion via web filtering. It’s been interesting to see parallels between the apologists for both the NCRL’s policy and mandatory web filtering in Australia: they both say, “this is not a free speech issue”, and use something else to justify the curtailment of free speech. But now I’m digressing onto the subject of my next post.
A few other posts on this subject:
Washington Supreme Court, 6-3, Backs Library System's Full Filtering Policy, Library Journal
Library's Internet filter does not violate Washington Constitution, Supreme Court of Washington Blog
Internet filtering: Bradburn et al v. North Central Regional Library District, informed community (not an official Timberland Regional Library blog)
