Internet Filters, Public Libraries, and the First Amendment

Introduction

The First Amendment and the Fundamental Right to Free Speech

Conclusion: Strict Scrutiny in Action

Notes

This paper examines the legal controversy that surrounds the use of Internet filters in public libraries.[1] The analysis begins with a brief but necessary explanation of how Internet filters operate. Section two applies the First Amendment to the filtering issue. Moreover, the paper explores how the presence of minors on the Internet may affect the applicable First Amendment considerations. Finally, the analysis concludes that the Supreme Court will render the use of Internet filters unconstitutional in public libraries.

The Internet and the Internet filter represent opposite sides of the technology coin. The Internet provides society with the means to access an immense amount of information. The filter is an equally powerful way to render information inaccessible. Filters operate with a Web browser by blocking access to on-line materials deemed objectionable or unfit for a particular category of users.[2] While the means employed to accomplish such blocking may vary with each filtering program, there are two main types of filters available.[3]

Database filters represent the first developed[4] and most widely used filtering mechanism.[5] The vendors of database systems review Web pages and assign a rating to each page based on content.[6] Upon review, the vendor stores the "Uniform Resource Locator" (URL) and the corresponding rating of each page in a database system.[7] Vendors update their database as the amount of reviewed web pages increases.[8] The Internet user, in their effort to retrieve on-line materials, must first access the database. If the selected page exceeds the individual’s authorization level, the database prohibits the Web browser from displaying the site and therefore impedes the user’s ability to retrieve the information.[9]

Critics of database filters dismiss the systems as entirely ineffective. The sheer volume of Internet Web sites renders the reviewing process at least burdensome if not altogether unworkable.[10] The rigid nature of the database system aggravates the problem. The user cannot tailor the software to conform with personal beliefs about certain subjects and viewpoints.[11] The database simply denies access to all material deemed objectionable by the vendor. Although database filters effectively block some unfit materials, they often overlook other prohibited pages and even block non-objectionable Web sites.[12]

In response to the widespread criticism of database systems, software developers created the embedded filtering system.[13] Embedded filters differ from database systems in two respects. First, the responsibility to rate material rests with the page’s creator.[14] Thus, in theory, all Web content receives a rating when added to the Internet. Second, the actual rating appears in the page itself. Generally, embedded systems place the rating within the page’s "Metatags"[15] or in the URL.[16] Thus, embedded filters allow the user to determine why a particular page may be blocked.

Although embedded filters appear to present a reasonable alternative to the database system, their current existence remains more theoretical than practical. The success of an embedded system depends on an Internet environment where Web developers voluntarily rate all on-line materials.[17] While this statement fails to describe the Internet’s current state, there is no reason to believe that a universally rated Web will emerge in the near future.[18] Nonetheless, the possibility of an embedded friendly Internet may not make any difference from a legal standpoint. Although more technologically suitable, embedded filters, like database filters, may impede access to constitutionally protected speech.

The First Amendment provides, in part, that "Congress shall make no law...abridging the freedom of speech."[19] While the plain language of the Amendment establishes that an individual maintains the right to engage in speech activity, the Supreme Court has further interpreted the clause to incorporate the right to receive information.[20] "The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them."[21] Moreover, the Court recently extended this right to the Internet in Reno v. ACLU.[22] Internet filters directly infringe upon a Web user’s fundamental right to receive on-line material and therefore implicate the First Amendment. This section analyzes the various free speech clause considerations raised by the Internet filtering issue.

Any First Amendment claim faces a significant threshold determination that governs the applicable standard of scrutiny. The court must categorize the state’s regulation of speech as either "content-neutral" or "content-based."[23] If deemed content-neutral, the court applies the "intermediate" or "mid-level" scrutiny analysis.[24] By contrast, content-based regulations trigger the more exacting "strict scrutiny" test.[25] This dichotomy[26] embodies immense practical significance. The Court’s choice may determine the outcome of a free speech case. Courts strike down speech restrictions at a considerably higher rate when the strict scrutiny test is used.[27]

Advocates for Internet filtering in public libraries, in an effort to benefit from intermediate scrutiny, rely on the "secondary effects" doctrine articulated by the Court in City of Renton v. Playtime Theatres, Inc.[28] The Renton Court[29] upheld a zoning ordinance that prohibited adult theaters from locating within 1,000 feet of a church, park, school, or residential area.[30] The Court rejected the argument that the zoning law resembled a content-based restriction on speech.[31] Rather, the Court characterized the law as content-neutral because the ordinance sought to eliminate what it called the secondary effects produced by adult theaters.[32] The majority applied intermediate scrutiny and sustained the ordinance as constitutional.[33] Therefore, Renton held that a state may enforce content-neutral laws to protect the neighborhood even if the regulations infringe upon the right to free speech.

Internet filters arguably operate by combating the secondary effects of objectionable Internet speech. For instance, the presence of violent or sexual material on the Internet may influence viewers to engage in violent criminal activity. This rationale appears to be even more persuasive when the Internet viewer is also a minor.[34] Justice O’Connor’s concurring opinion in Reno v. ACLU suggests that at least two Justices may support a secondary effects argument in the Internet context.[35] While O’Connor concurred in holding the Communications Decency Act (CDA) unconstitutional, she wrote separately to discuss the concept of "adult zones."[36] O’Connor insisted that a state could validly regulate on-line speech through the creation of adult zones on the Internet.[37] The zoning would function by denying minors access to the adult areas of the Web. O’Connor concurred with the majority, however, because the CDA infringed upon the free speech rights of adult users.[38]

While O’Connor’s opinion suggests that the Court could classify filters as content-neutral restrictions, other Supreme Court authority limits the argument’s vitality. In Boos v. Barry, the Court invalidated a District of Columbia statute that prohibited the display of any sign within 500 feet of a foreign embassy if the sign expressed critical ideas about that foreign government. The purpose of the law was to prevent the picketing of foreign embassies. The Court rejected the government’s secondary effects arguments and instead categorized the ordinance as content-based and applied strict scrutiny.[39] Boos held that a listener’s reaction to speech fails to constitute the type of secondary effect contemplated by the Renton court.[40] Similarly, a viewer’s reaction to on-line material likely falls outside the scope of Renton. In Reno, the majority cited Boos to refute the government’s secondary effects argument.[41] The Court rejected the contention that the CDA sought to combat the secondary effects created by objectionable Internet speech.[42] Rather, the "purpose of the CDA is to protect children from the primary effects" of such speech.[43] Reno categorized the CDA as content-based, applied strict scrutiny, and invalidated the law as an unconstitutional restriction on speech.[44]

In Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, the U.S. District court relied on Boos and Reno to dismiss a library’s secondary effects argument.[45] "The defendant’s concern that without installing filtering software, Internet viewing might lead to a sexually hostile environment is solely focused on the reaction of the audience to a certain category of speech."[46] The court classified filters as content-based, invoked the strict scrutiny standard, and declared that a library could not employ filters to regulate on-line speech.[47] Boos, Reno, and Mainstream Loudoun demonstrate that Internet filters cannot be justified under the Renton secondary effects doctrine. Filters operate by restricting full access to the Web in an effort to combat the primary effects allegedly caused by certain types of Internet speech. Thus, the Supreme Court must characterize Internet filters as content-based and invoke strict scrutiny.

Much like the speech restriction evaluation considered above, the forum analysis further influences what level of scrutiny applies to a given free speech scenario. However, the forum analysis confronts the scrutiny question by isolating the issue of where the speech restriction occurs. The Supreme Court has established the trichotomy forum analysis to answer the question.[48] Any given location may be categorized as a traditional public forum, a limited public forum, or a non-public forum.[49] Traditional public forums and limited public forums are subject to the same standards: Content-neutral restrictions warrant intermediate scrutiny; content-based regulations trigger strict scrutiny.[50] By contrast, the Court abides by less stringent standards in the non-public forum context. Content-neutral regulations require a mere rational basis review.[51] Moreover, content-based restrictions that do not discriminate on the basis of viewpoint also warrant the rational basis standard.[52] Conversely, viewpoint based regulations trigger strict scrutiny.[53]

Filtering advocates portray the library as a non-public forum to benefit from a lower level of scrutiny[54] If the court accepts the classification, filters will face the rational basis test and stand a good chance of passing constitutional muster. This conclusion assumes, however, that filters are content-neutral restrictions or at least non-viewpoint based. The Supreme Court has yet to issue a definite holding regarding the public library’s forum status. Thus, this section focuses on how the Court defines each forum category. Further, the analysis explores the approach adopted by the Third Circuit.

Traditional public forums are places that "have immemorially been held in trust for the use of the public, and time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions."[55] Common examples include public parks, sidewalks, and public thoroughfares.[56] Although libraries are open to the public at large, they embody certain characteristics that distinguish their makeup from the "quintessential" traditional public forum. The public library may be visited by citizens to prepare for assembly and debate; however, "a library patron cannot be permitted to engage in most traditional First Amendment activities in the library, such as giving speeches or engaging in any other conduct that would disrupt the quiet and peaceful library environment."[57] While the public library embraces certain First Amendment activities, the environment in no way resembles a park or a city street. Thus, any attempt to categorize a library as a traditional public forum would be entirely unjustified.

The Court defines the non-public forum as "public property which is not by tradition or designation a forum for public communication."[58] In essence, non-public forums retain a relatively private feel because the state has not opened them up for use by the general public. Military bases, municipal buses, and inter-school mail facilities have all been deemed non-public forums by the Court.[59] Although the library prohibits some First Amendment activity, the arena nonetheless remains open to the public for limited purposes. Thus, the public library will likely be analyzed under the limited public forum doctrine.

A limited public forum emerges as a result of direct action by the state. In essence, the state takes an otherwise non-public forum and dedicates the venue for a particular type of expressive activity.[60] The state does not have any obligation to preserve the forum’s "open character."[61] However, if it does, any regulation of speech must be analyzed according to the traditional public forum standards.[62] Examples of the limited public forum include municipal theaters, school board meetings, and university facilities designated for student use.[63]

In Kreimer v. Bureau of Police, the Third Circuit developed a three pronged test to categorize a public library as a limited public forum.[64] The court examined the government’s intent, the extent of the forum’s use, and the nature of the forum.[65] The Mainstream Loudoun Court applied the Kreimer test to reach a similar conclusion.[66]

Kreimer and Mainstream Loudoun focused on library regulations to determine if the state intended to designate a forum for speech related activity.[67] The Kreimer court based its holding on two factors. First, the court found it significant that the state of New Jersey did not require a municipality to provide a public library.[68] Moreover, the court cited the expansive nature of the library’s access policy which allowed library patrons "to use its facilities to the maximum extent possible during its regularly scheduled hours."[69] Similarly, the Mainstream Loudoun court examined the Loudoun County library’s access policy which sought to provide patrons with "the widest possible diversity of views and expression."[70] Both courts concluded that the state intended to designate the library as a forum for some expressive activity.

The Kreimer intent prong clearly requires the fact finder to dissect a given library’s regulations. As each policy may differ, so too will the results. Rather than examining the regulations of individual libraries, this paper instead analyzes the American Library Association’s Library Bill of Rights.[71] Ideally, all libraries should draft their regulations in accordance with the governing body’s Library Bill of Rights. Article I of the Library Bill of Rights embodies language identical in nature to the access policies cited in Kreimer and Mainstream Loudoun. Article I states "books and other library resources should be provided for the interest, information, and enlightenment of all people of the community the library serves."[72] Further, Article VI stresses that meeting rooms, if provided by the library, must be available on an "equitable basis."[73] The Library Bill of Rights demonstrates that the American Library Association intended for the public library to exist as a limited public forum.

Kreimer and Mainstream Loudoun, in their application of the extent of use prong, returned to an examination of the library regulations. Both courts found the requirement satisfied because neither library assumed "unfettered discretion governing admission."[74] Libraries, although they limit the type of First Amendment activity that occurs within, remain accessible to all. The Library Bill of Rights, affirming this principle, states "a person’s right to use a library should not be denied or abridged because of origin, age, background, or views."[75] The use of a library, although not broad enough to render it a traditional public forum, still permits a wide range of expressive activity including the receipt of information via the Internet.

The final requirement of the Kreimer test, the nature of the forum prong, appears to be an incorporation of the Supreme Court’s compatible use doctrine.[76] Thus, a court must examine the activity at issue to determine if the conduct is compatible with the forum maintained by the state.[77] Clearly, a state may legitimately prohibit the use of libraries for oral assembly or debate. While this type of discourse may be compatible with a sidewalk or a park, the conduct conflicts with the library setting, "a place dedicated to quiet, to knowledge, and to beauty."[78] The library is an environment where one uses the resources to gather information. Certainly, the use of the Internet to acquire information remains entirely compatible with the goals of a library.

Tinker v. Des Moines Independent Community School District and Board of Education v. Pico suggest that minors have a First Amendment right to access the Internet.[79] In Tinker the Court invalidated a school regulation that prohibited students from wearing black armbands in opposition to the Vietnam War.[80] In stating "students in school as well as out of school are ‘persons’ under our Constitution", the Court clearly established that minors enjoy First Amendment protection.[81] Supporting the holding was the fact that the student’s display of an armband failed to cause any in school disturbance. Rather, students used the bands to silently display their political views about the Vietnam conflict.[82]

Pico extended Tinker to incorporate a minor’s First Amendment right to receive information.[83] "Just as access to ideas makes it possible for citizens generally to exercise their rights in a meaningful manner, such access prepares students for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members."[84] Pico invalidated a school board’s policy that allowed for the "removal"[85] of objectionable books from the school library. The Court noted that school libraries, like public libraries, are "especially appropriate" venues to protect a minor’s First Amendment rights.[86] While a school board maintains the authority to determine the library collection, the Court cautioned that a board could not remove books because of a general "dislike" for the material.[87]

Although Tinker and Pico appear to protect the minor’s use of the Internet as speech related activity, Ginsberg v. New York and FCC v. Pacifica Foundation may authorize the library to validly restrict this right.[88] In Ginsberg, the Court upheld a criminal statute that prohibited the sale of material to minors if the material was deemed "harmful to minors" although not legally obscene.[89] Further, the Court reached this conclusion by applying the rational basis standard of scrutiny.[90] In Pacifica, the Court held that the FCC could, without violating the First Amendment, sanction a radio station that aired an "indecent" yet non-obscene mid-day radio program.[91] Ginsberg and Pacifica initially suggest that a library may be able to restrict a minor’s access to on-line speech. However, the factual scenario presented by a library that uses filtering systems may be distinguishable from Ginsberg and Pacifica.

The Ginsberg holding, at least in part, rested on the fact that the statute did not prevent parents from purchasing, for their children, material deemed "harmful to minors."[92] However, library computers with filters do not allow for such parental intervention. Filters, in their current technological state, lack the capacity to determine a given user’s age; filters simply block access to objectionable sites. The Pacifica Court found significance in the nature of the radio medium. "Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content."[93] The idea of avoiding unexpected speech distinguishes the Internet from the Pacifica radio medium. The Internet user gains information by actively seeking material through Web searches. In other words, the Internet search constitutes more than "tuning in and out."

Tinker, Pico, Ginsberg, and Pacifica should make both sides of the filtering controversy somewhat uneasy. The Supreme Court appears to have developed two competing doctrines that are difficult to reconcile. Clearly, the state does have some degree of authority to infringe upon the First Amendment rights of minors. However, the case law fails to provide much insight on where the state’s right ceases to exist. As filters affect all Internet users, the issue will likely turn on how much filters infringe upon the adult user’s free speech rights.[94] In Ginsberg, adult readers could legally buy the materials.[95] Moreover, the Pacifica Court concluded that adult listeners could purchase the on-air program at the local record store.[96] By contrast, the adult who relies on the public library for Internet access does not have this opportunity. The filter simply forecloses access to the information.

Based on the above analysis, this paper concludes that the Supreme Court should apply strict scrutiny to determine if a public library’s use of Internet filters violates the Constitution. Strict scrutiny functions as a two pronged analysis. First, the state must demonstrate that a particular restriction on speech stems from a compelling governmental interest.[97] Second, the test requires the state to show that the regulation represents the least restrictive alternative.[98] In other words, strict scrutiny obligates the state to prove that the chosen regulation infringes upon the right to free speech in the slightest possible manner.[99]

Internet filters certainly pass the compelling interest prong of the strict scrutiny test. Filtering advocates justify their argument by referring to the substantial minor presence on the Internet.[100] Moreover, the Supreme Court has firmly established that the protection of minors constitutes a compelling state interest.[101] In fact, the Reno Court extended the state’s protection power to the Internet medium.[102] Although filters may embody a compelling governmental interest, the speech restriction must still pass the Court’s least restrictive alternative prong.

If a public library could demonstrate that there are no less restrictive means, other than filters, to protect minors from objectionable on-line materials, then the least restrictive alternative prong would be satisfied. However, less intrusive alternatives do exist. In Mainstream Loudoun, the court noted that a library could purchase privacy screens to achieve the compelling governmental objective.[103] Moreover, the library could implement a policy where librarians "casually" monitor Internet use.[104] These alternatives present means that, unlike filters, intrude far less on the fundamental right to free speech.

Even if one assumes that filters represent the least restrictive alternative, the filter may still fail the second prong of the strict scrutiny test. In Sable Communications of California, Inc. v. FCC, the Court suggested that strict scrutiny requires the state to show that other alternatives have been "tested over time."[105] Thus, the state cannot justify filters by simply concluding that less restrictive alternatives are ineffective. Instead, the state satisfies strict scrutiny only if it shows that the alternatives have been given an adequate opportunity to fulfill the compelling governmental objective. The Sable decision becomes increasingly significant in the Internet filtering context because of the issue’s recent development. Whether privacy screens or computer monitors effectively satisfy the compelling state interest may be questionable. However, the alternatives must first be "tested over time" to evaluate their effectiveness.

[1] The Internet filtering issue arises in a variety of different contexts. Corporations may use filters to prevent employees from accessing the Internet for non-work related purposes. Parents employ filters at home to monitor their children’s Internet use. School boards and even university administrators may purchase filters to limit the on-line materials that reach students. Although this paper focuses on filtering in public libraries, the above scenarios must be mentioned. Each situation may yield a different result under the First Amendment.

[2] See Kimberly S. Keller, From Little Acorns Great Oaks Grow: The Constitutionality of Protecting Minors from Harmful Internet Materials in Public Libraries, 30 St. Mary’s L.J. 549, 562 (1999); See also PLA Tech Note, Filtering: No Easy Answer (visited Feb. 19, 2000) http://www.pla.org/filtering.html.

[3] See generally R. Polk Wagner, Filters and the First Amendment, 83 Minn. L. Rev. 755 (1999).

[4] The early database models simply created a limited "mini-Web" of acceptable web pages and foreclosed any access to the remainder of the Internet. See Keller, supra note 2 at 565.

[5] Wagner, supra note 3 at 761.

[6] PLA Tech Note, supra note 2; See also Wagner, supra note 3 at 761-762.

[7] Id.

[8] Popular versions of the database filter include Cyber Patrol, X-Stop, and Cybersitter. See Cyber Patrol (visited Apr. 6, 2000) http://www.cyberpatrol.com; X-Stop, (visited Apr. 3, 2000) http://www.xstop.com ; Cybersitter (visited Apr. 6, 2000) http://www.cybersitter.com.

[9] Keller, supra note 2 at 565.

[10] See PLA Tech Note, supra note 2 (stating that "it is clearly not possible for anyone or any group to review the estimated 25 new Web pages added to the Internet—every second").

[11] Further complication arises from the fact that vendors perceive their filtering methodology to be proprietary information. Therefore, a user may not know why the software blocks any given page. See Wagner, supra note 3 at 763; See also PLA Tech Note, supra note 2.

[12] Thus, from a legal standpoint, database filter systems are both overbroad and underinclusive.

[13] Wagner, supra note 3 at 763.

[14] Id at 761.

[15] See Adam H. Fleischer, What a Tangled Web: The New Legal Liabilities Created by the Internet, 4 NO. 18 Mealey's Emerging Ins. Disp. 29 (stating "Meta tags are key words embedded in the background code for each web page by its creator. They are the hooks ‘behind the scenes’ that reels a user to certain Web sites").

[16] Keller, supra note 2 at 567.

[17] Wagner, supra note 3 at 767.

[18] See generally John Perry Barlow, The Economy of Ideas, (visited Feb. 12,2000) http://www.wired.com/wired/archive/ 2.03/economy.ideas_pr.html (stressing the unconstrained or free nature of Cyberspace).

[19] U.S. CONST. Amend. I.

[20] See generally Martin v. City of Struthers, 319 U.S. 141 (1943).

[21] Lamont v. Postmaster General, 381 U.S. 301, 308 (1965) (Brennan, J., concurring).

[22] See Reno v. ACLU, 521 U.S. 844, 870 (1997) (stating that there is "no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium").

[23] Compare Police Dept. v. Mosley, 408 U.S. 92 (1972) (applying strict scrutiny to a content-based speech restriction), with United States v. O’Brien, 391 U.S. 367 (1968) (invoking intermediate scrutiny to uphold a content-neutral speech restriction).

[24] O’Brien, 391 U.S. at 369.

[25] Mosley, 408 U.S. at 95.

[26] While the reference to the speech restriction as a "dichotomy" is accepted among scholars, there may in fact be a third category. See Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986) (suggesting that content-neutral restrictions with an "incidental" effect on speech only require a rational basis review).

[27] See Simon & Schuster, Inc. v. Members of New York State Crime Victims Board, 502 U.S. 105, 125 (1991) (Kennedy, J., concurring) (arguing that content-based restrictions on speech are presumed to be unconstitutional).

[28] See Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 24 F.Supp.2d 552, 564(E.D. Va. 1998).

[29] The secondary effects doctrine applied in Renton evolved from Young v. American Mini Theatres, 427 U.S. 50, 71 (1976). In a footnote, Justice Stevens stated "the Common Council’s determination was that a concentration of ‘adult’ movie theaters causes the area to deteriorate and become a focus of crime, effects which are not attributable to theaters showing other types of films. It is this secondary effect which this zoning ordinance attempts to avoid, not the dissemination of offensive speech".

[30] City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 43 (1986).

[31] Id.

[32] Id.

[33] Id.

[34] See infra Section C.

[35] Justice Rehnquist joined in the O’Connor opinion. See Reno v. ACLU, 521 U.S. 844, 886 (1997).

[36] Id.

[37] Id at 888.

[38] Id at 889.

[39] Boos v. Barry, 485 U.S. 312, 321 (1988).

[40] Id.

[41] Reno v. ACLU, 521 U.S. 844, 868 (1997).

[42] Id.

[43] Id.

[44] Id at 879.

[45] Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 24 F.Supp.2d 552, 564 (E.D. Va. 1998).

[46] Id.

[47] Id at 565.

[48] See generally Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37 (1983).

[49] Id.

[50] Id at 46.

[51] Id.

[52] Id.

[53] Id.

[54] See Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 24 F.Supp.2d 552, 561-562 (E.D. Va. 1998).

[55] Hague v. CIO, 307 U.S. 496, 515 (1939).

[56] Id.

[57] Kreimer v. Bureau of Police, 958 F.2d 1242, 1256 (3d Cir. 1992).

[58] Perry, 460 U.S. at 46.

[59] See Flower v. United States, 407 U.S. 197 (1972) (military bases); Lehman v. Shaker Heights, 418 U.S. 298 (1974) (city buses); Id (school mail system).

[60] Perry, 460 U.S. at 46.

[61] Id.

[62] Id.

[63] See Southeastern Promotions, Ltd. V. Conrad, 420 U.S. 546 (1975) (city theaters); City of Madison Joint School District v. Wisconsin Public Employment Relations Comm’n, 429 U.S. 167 (1976) (school board meetings); Widmar v. Vincent, 454 U.S. 263 (1981) (student facilities).

[64] Kreimer, 958 F.2d at 1259-1262.

[65] Id.

[66] Mainstream Loudoun, 24 F.Supp.2d. at 562-563.

[67] See Kreimer, 958 F.2d. at 1259; Id at 563.

[68] Kreimer, 958 F.2d at 1259.

[69] Id.

[70] Mainstream Loudoun, 24 F.Supp.2d. at 563.

[71] American Library Association, Library Bill of Rights (visited Mar. 20, 2000) http://www.ala.org/work/freedom/lbr.html.

[72] Id.

[73] Id.

[74] Kreimer, 958 F.2d at 1260; Mainstream Loudoun, 24 F.Supp.2d at 563 (quoting from the Kreimer opinion).

[75] American Library Association, supra note 64.

[76] For a classic example of the compatible use approach, See generally Brown v. Louisiana, 383 U.S. 131 (1966).

[77] Kreimer, 958 F.2d at 1261.

[78] Brown, 383 U.S. at 142.

[79] See Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969); Board of Education v. Pico, 457 U.S. 853 (1982).

[80] Tinker, 393 U.S. at 513.

[81] Id at 511.

[82] Id at 508.

[83] Pico, 457 U.S. at 868.

[84] Id.

[85] The Court’s holding in Pico pertains to book removal rather than acquisition. The First Amendment rights of minors in the acquisition context are very limited. See Pico, 457 U.S. at 862. Thus, Internet filtering in public libraries could be deemed constitutional under the theory that librarians use filters to acquire some on-line materials instead of others. However, this argument must be rejected. See Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 2 F.Supp.2d 783, 794 (E.D. Va. 1998) (arguing that filters resemble a "collection of encyclopedias from which defendants have laboriously redacted portions deemed unfit for library patrons. As such, the Library Board’s action is appropriately characterized as a removal decision").

[86] Id at 869.

[87] Id at 871.

[88] See Ginsberg v. New York, 390 U.S. 629 (1968); FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

[89] Ginsberg, 390 U.S. at 641.

[90] Id.

[91] Pacifica, 438 U.S. at 750.

[92] Ginsberg, 390 U.S. at 639.

[93] Pacifica, 438 U.S. at 748.

[94] See e.g., Reno v. ACLU, 521 U.S. 844 (1997) (O’Connor, J., concurring).

[95] Ginsberg, 390 U.S. at 631.

[96] Pacifica, 438 U.S. at 750.

[97] See e.g., Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 46-47 (1983).

[98] Id.

[99] See generally Ward v. Rock Against Racism, 491 U.S. 781 (1989) (discussing the difference between the narrow tailoring requirement and the least restrictive alternative).

[100] See Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 24 F.Supp.2d 552, 564-565 (E.D. Va. 1998).

[101] See supra Section C.

[102] See Reno v. ACLU, 521 U.S. 844, 865-867 (1997).

[103] Mainstream Loudoun, 24 F.Supp.2d. at 567.

[104] Id.

[105] Sable Communications, Inc. v. FCC, 492 U.S. 115, 122 (1989).