To: Jean Rhein, Library & Leisure Services Director
Suzy Goldman, Technical Support Services Manager

From: Harlan Wright, Assistant County Attorney

Date: June 18, 1996

RE: Ability of Library in Offering Internet Access to Patrons to Use Filtering Software to Limit Sites Accessed; Viewing Offensive Images and Text as "Disruptive" Behavior Requiring a Patron to Leave the Library.

The Seminole County Library System (Library) is planning to offer Internet access to Library patrons by placing terminals in its several branches. The Library has already developed a web page. This web page will become the graphical interface from which patrons will access various Internet services including the world wide web (WWW).[1]

The Library is concerned about the impact on other patrons near terminals if an Internet user access images and sites with profane language which other patrons find offensive. You ask if the Library may legally use filtering programs[2] , e.g. "NET NANNY", to limit those sites or the specific materials which the patron[3] could access in order to avoid offensive images or profane language. The Library would use the software not only to block sites and materials of a sexual nature, but also sites and materials objectionable on grounds that they were hate-related or violent. If the Library may not utilize filtering software, you ask, in the alternative, whether a patron who insists on accessing sites which cause a reaction by other patrons, could be characterized as engaging in disruptive behavior[4] and thus be asked to leave the Library.[5]

• Despite the formal exclusion of certain types of expression from the protection of the First Amendment (obscenity, fighting words, language evoking a "clear and present danger"), most expression is protected in reality since the United States Supreme Court narrowly interprets these exclusions.
• The Library's filtering software policy is most likely to be found constitutional in the context of sexually-oriented Internet sites, as opposed to sites involving violent or hate materials since the latter are more likely to contain political expression.
• Most materials popularly labelled as "obscene," do not meet the legal test for obscenity and, hence, are protected under the First Amendment. One reason why such materials are not legally obscene is because they have either artistic, literary or scientific merit.
• The Internet has been held to be a "public forum" which means that expression communicated through it enjoys the highest level of protection from government interference.
• Freedom of expression includes the right to receive a communication.
• A reviewing court would probably rule that the use of filtering software by the Library constitutes a content-based regulation and prior restraint. Such regulation of speech has rarely been upheld as being constitutional as it must serve a critical or compelling governmental interest and be narrowly tailored.
• Although protecting young children from obscenity has been held to be a compelling governmental interest, measures to protect children may not significantly infringe upon the ability of adults and older minors to receive expression. Filtering software is too crude and broad in its effect to avoid this problem, unless the library has the funds or staff to have multiple terminals segregated by users' ages.
• No case involving the use of filtering software by libraries exist. A United States Supreme Court opinion which held that the removal of books from a school library was unconstitutional strongly suggests that the use of filtering software in a public library would be found unconstutional.
• Even if the filtering software survived a constitutional challenge on prior restraint grounds, it would likely not survive a challenge under the overbreadth doctrine.
• Beyond First Amendment problems, the use of filtering software could be successfully attacked as a violation of right to equal protection by some patrons, unless the Library were very evenhanded about blocking or not blocking controversial sites involving ethnic conflict or heterosexual and homosexual matters.
• Although sovereign immunity provides the Library (County) some protection, the use of filtering software could cause a court to rule that the Library was a publisher and liable for defamatory statements or materials constituting an invasion of privacy which it permitted to reach patrons using Internet terminals. Negligent infliction of emotional stress also cannot be excluded if the Library promises to protect patrons from unsettling material, but then fails to do so.
• Even if viewing a screen in the Library is regarded by a court as a communication process distinct from the Internet communication process, public libraries are still "limited public fori", a classification which insures a high degree of protection of expression under the First Amendment.
• A policy of asking patrons to leave the Library for disruptive behavior if they view objectionable materials on an Internet terminal screen in an otherwise acceptable manner constitutes a content-based government regulation. To be upheld, such a regulation must serve a compelling governmental interest and be narrowly tailored.
• Mollifying unhappiness or disquiet expressed by other patrons regarding the materials viewed by a user of an Internet terminal does not constitute a legitimate, let alone a compelling governmental, interest under Supreme Court law. Asking the user to leave for disruption due to the materials he or she were otherwise properly viewing is also not a narrowly tailored measure. A policy against disruption would, therefore, not survive even if reviewed as a time, manner and place regulation of non-expressive conduct. The problem should be solved by partitioning-off Internet terminals to prevent conflicts over taste and preference.

As you stated in your memorandum, the area of the Internet and the First Amendment[6] is new and unsettled law. The recently issued landmark opinion in ACLU v. Reno, -- F.3d - (3^rd Cir. 1996) is strongly suggestive, but does not directly control the issues you have raised. The Communications Decency Act which the court just held was unconstitutional dealt with criminal sanctions against the dissemination of patently offensive and indecent materials. The issues you have raised deal with a government agency's ability to restrict Internet access to specific information, once that agency decides to offer general access. To answer your questions, analogies to traditional first amendment cases involving library books must be used. The issues you have raised also not only involve the First Amendment[7], but also have ramifications under Florida tort and criminal law.

Since the area of the Internet law is unsettled, a cynical attorney might advise you to do as you please relative to filtering software until a court ruled otherwise. Since the law is still evolving in this area, it is doubtful that the County would be found to be liable for damages under 42 USC 1983 for violations of constitutional rights.[8] However, a policy to adopt filtering software at Library Internet sites is not legally viable[9] on the long term. It would most likely involve the County in litigation.

Although not all expression is protected by the First Amendment in theory, the range of expression not so protected in practice is very narrow.[10] Much of what commonly is criticized as being pornographic or obscene is legally "only" patently offensive or indecent and, thus, protected. The recent decision in ACLU v. Reno is the latest illustration of this legal reality. The court found that messages about graphic plays about homosexual life, graphic movies about the transmission of AIDS, graphic textual descriptions of prison rape, etc, were, at most, indecent, not obscene. Similarly, the United States Supreme Court has held that "depictions of nudity, without more, constitute protected expression". See Osborne v. Ohio, 109 L.Ed.2d 98 (1990). Consequently, Internet messages with such content enjoy protection under the First Amendment even when a (older) minor is making or receiving the communication.[11] See ACLU v. Reno.

The court in ACLU v. Reno also held that the Internet was a public forum.[12] This holding means any proposed regulation of communication on the Internet is subject to the highest level of relevant constitutional scrutiny. For direct government regulation of communication based on content to survive court scrutiny, such regulation must be a narrowly tailored measure and closely tied to a critical government interest which is independent of the content of the communication being regulated. For so called "content-neutral" time place and manner regulation of the non-communicative impacts of expression to survive, such regulation must serve an important governmental interest unrelated to the content of the communications being impacted, be narrowly tailored and permit alternative channels of communication.

Under the scenario your memorandum proposes, the Library will clearly be acting as governmental regulator. The use of filtering software would not simply deal with the timing or manner or place in which express communication occurs. The use of screening software to block access to certain Internet sites and materials from the Internet terminals it plans to provide would involve the Library in direct regulation of communications based on their content.[13] Moreover, filtering software blocks communication even before it is completed. This attribute makes the policy even more aggressive than the Communications Decency act which would only have prosecuted persons after they had communicated certain messages to minors. Freedom of expression includes both the right to make and the right to receive a communication. See Virginia State Bd. Of Pharmacy v. Virginia Citizens Council, Inc., 425 U.S. 748 (1976).

First Amendment protection of expression applies with especial force in cases where prior restraint is exercised by a governmental body. A court may very well determine that filtering software used by the Library under the instant facts is a form of prior restraint like prohibiting the publication and circulation of a newspaper or the broadcast of a television or radio program until cleared by a censor. Even when targeted material is arguably unprotected obscenity or pornography, informal prior restraint measures like filtering software almost never passes court review. For the screening software policy to be likely to survive constitutional muster, it must provided for court determination of whether the proposed sites and materials to be blocked are truly obscene or pornographic. See Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957). Of course, such an arrangement is not feasible for the Library. Moreover, even if it were, much of what screen software blocks, would not be found to be legally obscene. Hence, the filtering software policy would be gutted.[14]

Since the Internet is a new phenomenon, no appellate case involving a public library and screening software exists to specifically illustrate the foregoing legal analysis. A reasonable analogy may be found in an United States Supreme Court opinion involving a school library's removal of books as the result of partisan, religious, social, lifestyle or other "controversial political" preferences.

In Board of Education v. Pico, 73 L.Ed.2d 435 (1982), the United States Supreme Court ruled in a decision with no one majority opinion that the removal of nine books from a school library violated students' First Amendment rights. The grounds for removal were a conservative[15] school board's determination that the books were "anti-American, anti-Christian, anti-Semitic and just plain filthy". The majority reached this result, although the court wrote that it strongly defers to local community control of education. An individual does not have a constitutional right to school or public library services. Nevertheless, once government decides to provide a library (or Internet access to information), First Amendment protections take effect for the patron's benefit. The court reasoned that school library use, as opposed to school curriculae, entail individual student decision-making and voluntary learning. Accordingly, First Amendment considerations had to be given greater weight than community control.

The court stressed that its ruling in Pico did not limit school boards' discretion as to the selection of books to school libraries since the facts of the case did not raise this issue. The tenor of the opinion suggests that the Supreme Court would afford a local school board greater discretion in the selection of books. However, the court probably would not uphold a selection policy which was overly restrictive due to decision-makers' dislike of ideas contained in works sought by responsible faculty and students and commonly available in other districts' school libraries.

Pico lends support to this memorandum's conclusion that a court would not uphold use of prescreening software by the Library. The use of screening software to prevent access to various Internet sites and materials, after the Library decides to offer Internet access, may be analogized to the furnishing of a library with books only to have some subsequently removed. Although the Library may have many minors as its patrons, the Library caters mainly to adults. A public library is also not so centrally involved in the inculcation of community values as is a public school library. Accordingly, a court need not defer to community control as in the case of a school library in determining the scope on individual patrons' First Amendment freedom to receive messages. Conversely, voluntary exposure to information and individual choice must be accorded greater weight in a public library setting that one involving a school library.[16] Even the use of a public library by minors is further removed from curriculum decisions. The one possible supportive aspect of Pico for a policy of screening Internet sites is that a reviewing court may take note of the Supreme Court's forbearance regarding original material selection. The court may hold that deciding which Internet sites or materials to block was the equivalent of deciding which new book to purchase and that a local decision-making body may set guidelines. However, this reasoning presumes that a public library is the equivalent of a school library as to the balancing of the interests of First Amendment values and community control values.

Assuming for the sake of analysis that a court found filtering software did not constitute prior restraint, the probability of a policy requiring the utilization of filtering software passing constitutional muster would still be low. The policy and the software are measures suffering from overbreadth and possibly "underbreadth". The doctrine of overbreadth is applied by courts to nullify statutes and regulations which are so broadly drawn that they not only prohibit constitutionally unprotected expression, but also protected expression. Under contemporary constitutional and standing law, the doctrine of overbreadth permits a patron to successfully challenge the filtering software policy, even though his or her own site(s) contained patently obscene or other constitutionally unprotected expression.

Courts do not apply the overbreadth doctrine lightly. A statute or regulation must be substantially overly broad as to the expression it prohibits before a court will declare the measure to be unconstitutional. See Broadrick v. Oklahoma, 413 U.S. 601 (1973). Nevertheless, a reviewing court would likely find the proposed filtering software policy overly broad. The software targets Internet sites and information which, although possibly offensive to many patrons, clearly lie within the ambit of First Amendment protection for adults and older minors. The fact that filtering software works in mysterious ways only worsens the problem. For example, a possible 'false positive" blocked by filtering software could be a Roman Catholic website addressing the veneration of the Blessed Virgin, i.a., her immaculate conception. Conversely, a truly obscene text-based[17] site which strategically utilized the words "buttofucco" or "funk" to describe certain activities could escape detection, at least if its operators frequently changed its address. This "underbreadth" reduces the policy's merit and the potential harm of nullifying it.

In conclusion to this subsection, Florida law clearly states that shielding minors from obscene communications is a compelling governmental interest. See Sections, 847.001 (Definitions of "Harmful to Minors", "Obscene", i.a.), 847.011 (Prohibition of Certain acts in Connection with Obscene, Lewd, etc., Materials), 847.012 (Prohibition of Sale or Other Distribution of Harmful Materials to Persons Under 18 Years of Age), 847.0133 ( Protection of Minors), 847.0135 (Computer Pornography). The courts have upheld this goal as an important legitimate governmental interest which may be realized by narrowly tailored restrictions on the manner of communications distribution. Unfortunately, the Library's proposal to use screening software is not such a narrowly tailored measure. Filtering software is too broad and too preemptive and prevents often constitutionally protected communications from reaching not only minors, but also adults. Contrast the proposed filtering software policy with presumably constitutional Section 847.0135, Florida Statutes. The statute narrowly focuses upon computer transmissions knowingly made for the purposes of obtaining information (including visual depictions) regarding or facilitating or soliciting sexual conduct with a minor. For the proposed filtering software policy to have any change of legal viability, the Library must find the funds for separate terminals for use by separate age groups. Filtering software should probably not be used at all at terminals reserved for adults and sparingly for minors over fifteen years of age.

In the contingency that a court upheld the use of filtering software at Library Internet sites, the use of such software still entails legal risk for the County. Promising patrons that they or their children will not be exposed to certain Internet sites or material, and then failing to deliver on such promises could subject the Library to tort liability for negligent infliction of emotional distress. Undertaking to select which messages reach its patrons through the Internet could also subject the Library to liability for the intentional torts of defamation and invasion of privacy.[18] This memorandum does not address potential tort liability for damage to software due to the importation of computer viruses, first encountered by a patron at a Library Internet terminal, to other networks or computers. This memorandum also does not discuss tort liability for illegal or unauthorized copying of software or other intellectual property. These two assumptions rest, in turn, upon the assumption that the Library will not offer patrons Internet terminals with disk drives.

Liability for the negligent infliction of emotional or mental distress will lie under Florida law even if the only physical harm (a necessary element for this tort) present is the byproduct or result of emotional trauma. See Gonzalez v. Metro, Dade County, 651 So.2d 673 (Fla. 1995). The likelihood of County liability for negligent infliction of emotional distress is not great. However, the risk of liability, combined with the costs of even unsuccessful litigation by plaintiffs, is sufficiently great to be a factor in Library decision-making about whether to adopt filtering software.

Emotional distress is not the only tort liability which could resort from the Library's adoption of filtering software. Under a second scenario, liability could emerge from the very fact that the Library was undertaking to screen the sites and materials its patrons could access. Libraries normally are classified as "distributors" of information. As a result, they may not be held liable for the obscene or defamatory contents of books and other publications they select for their collections. See Smith v. California, 361 U.S. 147 (1959). Pre-selecting sites and materials could turn the Library into a "publisher" for the purposes of defamation and invasion of privacy laws. Unlike distributors, publishers may be held liable for obscene or defamatory content of communications they disseminate or for invasion of privacy. In essence, the Library would be falling into the same trap as Prodigy did in Stratton Oakmont, Inc. v. Prodigy Services. Co. - NY --, -- A.2d - (NY App. Ct. 1995), where the court held the computer service liable for defamatory comments posted on it.

If it uses screening software, reinforced by staff guidelines, the Library would be exercising editorial control over the specific content of information it was disseminating as does the board of editors of a newspaper or encyclopedia. By holding itself out to its patrons as being able to control the content of sites accessible through its Internet terminals, the library would only exacerbate the situation. These factors were the ones that led a New York court to declare Prodigy a publisher and liable for defamatory statements.[19] The same analysis for the intentional tort of invasion of privacy.

Admittedly, the County and its agencies usually may not be held liable for intentional torts. Section 768.28, Florida Statutes, does not waive for sovereign immunity for acts by employees which are outside the scope of employment, or committed in bad faith or in a wanton and willful manner. See Williams v. City of Minneola II, 619 So.2d 983 (Fla. 5^th DCA 1993). Local governments are, however, not completely immunized from liability for intentional torts since some acts could be committed within the scope of employment and without bad faith or malicious purpose or a willful disregarding of human safety or rights. See Richardson v. City of Pompano Beach, 511 So. 2d 1121 (Fla. 4^th DCA 1987) and Hennegan v. Dept. of Highway Safety, 467 So. 2d 748 (Fla. 1^st DCA 1985). One must recall that the word "intentional" in the phrase "intentional tort" may refer to a mere half-conscious decision to act, and not, just the common sense meaning of consciously acting to effect a malicious purpose. Accordingly, the Library's provision of Internet terminals and its selection of which messages which users are intentional acts.

Using filtering software might also cause the Library to commit a criminal violation. Many Internet filtering applications keep records of the sites and materials accessed by a user, unbeknownst to that user. Not to avoid or, at least, disable software with this monitoring function could violate Section 257.261, Florida Statutes. This section prohibits the release of and the permanent maintenance of patron borrowing records. Even if criminal liability did not lie under these facts, Section 257.261 may be relied upon as persuasive authority in tort litigation by a patron seeking relief for invasion of reasonable privacy expectations. At the very least, the Library should inform patrons of the monitoring functions existence. If the Library were to offer its patrons Internet telephone capability in the future, such monitoring could also lead to violations to Section 934.03 Florida Statutes. This section prohibits monitoring or disclosure of aural telephone communications outside the normal courts of business of a telephone company.

A policy of asking patrons to leave the Library for being disruptive simply because another patron did not like the constitutionally protected graphic or test message the first patron was receiving through the proper use of County-provided Internet sites would be no more legally viable than the screen software proposal. A court would likely rule that a patron's simple viewing of an image or text message at a terminal provided by the Library was part of the constitutionally protected Internet communication process. To reiterate, the third circuit held in ACLU v. Reno that the Internet is a pure public forum subject to the highest level of protection under the First Amendment. The disruption policy fails like the filtering software policy because it prevents protected communication through the Internet for reason of that communication's content.

Even if a court ruled that viewing a message received over the Internet at a Library terminal constituted a different state of communication, public libraries are themselves "limited public fori". See Kreimer. This classification insures that the making and receipt of communication in a manner normally compatible with the operation of a Library receives significant protection from government regulation. Past pretextual use by libraries of local ordinances prohibiting disorderly conduct, loitering and trespass to discriminate against minorities and holders of unpopular viewpoints guarantees that the Library's use of a policy against disruptive behavior will receive very strict scrutiny as a matter of practice, if not of law. See Georgia v. Rachel, 16 L.Ed.2d 925 (1966) and Achtenberg v. Mississippi, 303 F.2d 468 (5^th Cir. 1968).

Preventing disruptive behavior, content-related as your memorandum defines it, would be held not to be a legitimate governmental goal. The right to receive expressive communication, as well as its making, is protected by the First Amendment. Once again, see Virginia State Bd. Of Pharmacy v. Virginia Citizens Council, Inc. The United States Supreme Court has held that unhappiness on the part of observers or bystanders with the content of a speaker's message is not a legitimate ground for police to interfere with the delivery of that message by invoking a breach of the peace statute, even when the bystanders threaten violence. See Terminiello v. Chicago, 93 L.Ed. 1131 (1949), and Edwards v. South Carolina, 9 L.Ed.2d 697 (1963). These holdings surely apply even more so to the orderly receipt of information in a library setting where the chance of violence is remote. Admittedly, Kreimer held that Library enforcement of policies to prevent a patron from annoying or harassing other patrons did not violate the First Amendment. However, the annoyance and harassment present in the Kreimer fact pattern involved physical and verbal behavior by a patron directed at other patrons. Nothing in Kreimer dealt with unhappiness or indignation felt by one patron in response to the content of communication voluntarily being received by another in the ordinary course of library operations.

Even if a policy against disruption were treated by a court as being a time, manner and place regulation, as opposed to a measure directly affecting expression, the policy still would very probably not pass constitutional muster. To reiterate, for so called "content-neutral" time place and manner regulation of the non-communicative impacts of expression to survive, such regulation must serve an important governmental interest unrelated to the content of the communications being impacted, be narrowly tailored and permit alternative channels of communication. The purpose of the proposed policy against disruption, preventing other patrons' unhappiness over controversial images or text being displayed, is not a legitimate governmental interest unless such images and text do not come under the protection of the First Amendment. In addition to not being a legitimate governmental interest, such a broad application of a policy against disruption would fail constitutional muster for not being content neutral. The proposed policy would also not be narrowly tailored. For example, an Internet computer terminal could be screened from general view as a means to lessen public offense at controversial sites, sounds and texts.