Rochester Library to extend Web ban as it writes policy


The Battle Continues in Rochester NY. The Central Library of Rochester today is expected to extend a ban on viewing explicit Web sites there as it grapples with establishing an Internet policy that appeases Monroe County Executive Maggie Brooks and saves millions in county aid from the chopping block.

The library has been under fire from Brooks over a longstanding policy that let patrons, upon request, unblock potentially inappropriate or pornographic Web sites. The library says the policy complies with federal law and free speech.

Yet Brooks counters that the library isn't required by federal law to unblock Web sites deemed inappropriate. She is threatening to strip $6.6 million in county aid to the Central Library, a cut that would likely force it to close. Brooks' response was spurred by a television report that showed people viewing pornography on the library's computers.


Does she really have that authority? Where I live the the independent board would simply remind her of the requirement to maintain continuity of funding. Failing to maintain her current level of funding to the library would place the county in violation of state law. Being in violation of state law means the county no longer qualifies for state money until they have an approved remediation plan. This protects independent agencies from tirades by funding bodies. What if she decided that the library would hire her husband as director and implied cutting funding to encourage the hire? Independent agencies must remain independent.PSSInce the library is in compliance with the law I further question her authority to supplant federal/state law with her own whims.PSSWasn't she a former employee of the tv station who brought this to her attention? Tit for tat?

The CIPA decision does not stand for the proposition that a library can impose mandatory filtering on its patrons.

First, it is a plurality decision, which means that no one opinion gained 5 or more votes from the justices. For example, the Rehnquist quote cited by mdoneil (based on material from a 1930 text on librarianship) was only backed by four of the nine justices, and NONE of the remaining five justices adopted his reasoning in their concurrences or dissents. No court would treat it as binding precedent, especially if the law and the facts at issue dictated a contrary decision.

Moreover, Rehnquist himself noted that First Amendment concerns were addressed by the law's provision that libraries unblock or disable the filter:

Assuming that such erroneous blocking presents constitutional difficulties, any such concerns 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. As the District Court found, libraries have the capacity to permanently unblock any erroneously blocked site, id., at 429, and the Solicitor General stated at oral argument that a "library may ... eliminate the filtering with respect to specific sites ... at the request of a patron." Tr. of Oral Arg. 4. With respect to adults, CIPA also expressly authorizes library officials to "disable" a filter altogether "to enable access for bona fide research or other lawful purposes." 20 U.S.C. s 9134(f)(3) (disabling permitted for both adults and minors); 47 U.S.C. s 254(h)(6)(D) (disabling permitted for adults). The Solicitor General confirmed that a "librarian can, in response to a request from a patron, unblock the filtering mechanism altogether," Tr. of Oral Arg. 11, and further explained that a patron would not "have to explain ... why he was asking a site to be unblocked or the filtering to be disabled," id., at 4. The District Court viewed unblocking and disabling as inadequate because some patrons may be too embarrassed to request them. 201 F. Supp. 2d, at 411. But the Constitution does not guarantee the right to acquire information at a public library without any risk of embarrassment.4 (see U.S. v. ALA

Rehnquist's language does not suggest that the library has the "option" of unblocking - it suggests that it must unblock Constitutionally-protected websites or disable the filter, or face a First Amendment challenge to its actions. Indeed, the FCC order mandating libraries to adopt filters in the wake of the CIPA decision instructs all libraries using e-rate to adopt policies to facilitate the unblocking of websites or disabling of the filter at the request of the patron:

9. On June 23, 2003, the Supreme Court issued its opinion reversing the judgment of the
District Court and finding that CIPA, on its face, is constitutional. The Supreme Court found
that CIPA does not induce libraries to violate the Constitution because public libraries' Internet
filtering software can be disabled at the request of any adult user and, therefore, does not violate
their patrons' First Amendment rights. In upholding CIPA, the Supreme Court emphasized "the ease with which patrons may have the filtering software disabled," and that a patron who encounters a blocked site ... need only ask a librarian to unblock it (or at least in the case of adults) disable the filter." The plurality also highlighted the government's acknowledgment at oral argument that "a patron would not 'have to explain ... why he was asking a site to be unblocked or the filtering to be disabled.'"27
11. ...In order to comply with the statute's Internet filtering requirement, many libraries must prepare a budget for the purchase of software and related costs, design, procure and/or order software appropriate for their systems, install the software and implement a procedure for unblocking the filter upon request by an adult. See FCC Order 03-188, In the Matter of Federal-State Joint Board on Universal Service Children's Internet Protection Act, July 23, 2003

A more proper interpretation is that CIPA is constitutional solely because it requires libraries to unblock or disable the filter for adult users. And given that the two concurring votes to uphold CIPA did so on the grounds that the law, as represented and interpreted by the Solicitor General, requires libraries to promptly unblock sites or disable filters at the request of the patron, it's a facile misrepresentation to say that the CIPA decision endorses mandatory internet censorship in the library. Read Justice Kennedy's concurring opinion, that all but invites a new lawsuit should a library fail to unblock or disable the filter:

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. The Government represents this is indeed the fact... If some libraries do not have the capacity to unblock specific Web sites or to disable the filter or if it is shown that an adult user's election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge, not the facial challenge made in this case. See US v ALA, Kennedy Concurrence.

Indeed, the North Central Public Library System in Washington State is presently being used precisely because it refused to provide access to Constitutionally protected materials blocked by its filter.

One should note that the only court decision that evaluated the Constitutionality of a public library's mandatory filtering policy, Mainstream Loudon v. Board of Trustees of Loudon County Library found mandatory filtering unconstitutional. That decision was NOT overturned by the CIPA decision.

Anyone who would contend that it is legal for publicly funded libraries to censor Constitutionally protected material published on the Internet might usefully explain why it is illegal and unconstitutional for public libraries to place books like "Daddy's Roommate" and "Heather Has Two Mommies" on restricted shelves (see Sund v. City of Wichita Falls) or illegal and unconstitutional for a school library to require a child to have a parent's written permission to see "Harry Potter" (see Counts v. Cedarville School District) and why it is constitutional to block access to legal Internet sites that are otherwise freely available through the library's existing Internet access at no additional cost to the library, especially in the absence of a reasoned decision to exclude the materials based on a written collections development policy.

None of this is to say that filtered Internet access shouldn't be available as a choice for both children and adults. But a public library that blocks users' access to Internet materials solely because some commercial software company says that the content might fall into a category of illegal speech or even potentially controversial LEGAL speech, is not only risking a lawsuit and practicing censorship, it's abandoning its professional responsibility.

This board is independent. Accepting money does not equate to loss of independence. I accepted my army pay check and have never supported the ridiculous war. Your talking point on the US Attorneys is not really relevant here, but kudos for trying to slip it in and confuse the issue. Sheesh even Ashcroft told the US Attorneys to never put politics before justice. Forgive me my liberal friends for longing for the days of Ashcroft.I have no idea what the county board is in favor of nor do you so again stop trying to confuse the issue. Thats how it works you insert a comment that obviously must be true and proceed to build upon it. Sort of like links to non-authoritative sites to support your point.Let me break this down for you. The library board represents the community not the elected officials. So many people fail to understand that distinction. I had a police officer on my board who wanted to record the names of all who use computers at the library to aid in fighting crime. Bright fellow, just unable to seperate himself from his day job to his new role. Luckily the other board members realized who they served. While I'm at it US Attorneys serve the law not the President.Just started my gander at NYSL (New York State Law). First thing that jumps out:
      § 267. Local neglect. If the local authorities of any library
    supported wholly or in part by state money fail to provide for the
    support of such library and the public usefulness of its books, the
    regents shall in writing notify the trustees of said library what is
    necessary to meet the state's requirements, and on such notice all said
    library's rights to further grants of money or books from the state
    shall be suspended until the regents certify that the requirements have
    been met; and if said trustees shall refuse or neglect to comply with
    such requirements within sixty days after service of such notice, the
    regents may remove them from office and thereafter all books and other
    library property wholly or in part paid for from state moneys shall be
    under the full and direct control of the regents who, as shall seem best
    for public interests, may appoint new trustees to carry on the library,
    or may store it, or distribute its books to other libraries.I think refusing to fund the library to the tune of 6+ million dollars could be construed as neglect. Will the county really decide to serve the citizenry by having the library system closed? I'm betting somewhere I find a section that requires the county to provide library service.

You said:"I think refusing to fund the library to the tune of 6+ million dollars could be construed as neglect.

It does not matter what you think. That is most assuredly not neglect, failing to maintain the physical plant, failing to protect the collection from damage, those are most assuredly neglect. Withholding discretionary funding is not neglect.

Getting you knickers in a twist over restricting perverts' access to porn at the public library does a disservice to the profession. This is not a First Amendment issue, a collection development issue, or any such thing. It is about keeping dirty pictures and their attendant perverts and public masturbators out of the library.

Librarians censor every day. It is called collection development, not to do so is abandoning a librarian's professional responsibility.

So as not to make this any longer than it already is, I don't see where anyone said CIPA or the Court's review of CIPA requires mandatory filtering of all Internet access.

I mentioned those cases it because the County Executive said it does not require libraries to unblock access, they may but they are not required to, as the County Executive noted.

If you cannot see the difference between the decisions regarding books, and those regarding Internet access perhaps I can explain it simply (and in a few words). Books have gone through a collection development process; it is not possible to do the same with all Internet sites, thus their different treatment.

Try reading Rehnquist's ALA opinion again it makes the difference quite clear.

Yes there are opinions from subordinate Courts that seem to conflict with the SCOTUS rulings, and this is not unusual. v. Louden only applies to that particular case, and the library board only declined to appeal because of the cost, a most unfortunate circumstance being forced to decide between funding the library or letting the perverts have their pornography.

Internet access at the library is not a public forum.

Why do you want people looking at pornography at your library?

Isn't it a collection decision itself to offer access to the Internet as a whole? Does the library sit down and approve each and every article or image contained in a purchased database? Do you slice out photographs from magazines and books that you consider unsuitable?If, in fact, the libraries were making reasoned decisions about websites, I might be willing to agree that decisions to block ("not acquire") certain websites would be appropriate. But libraries aren't doing this - they're ceding decisionmaking ("collection development") to commercial filtering companies that often work openly with groups like American Family Association and Focus on the Family to set up their censorship categories, which go far beyond sexually explicit websites (many of which, by the way, are legitimate sources of information about contraception and sexual health.)And I flatly disagree that Rehnquist's four justice opinion serves to justify mandatory filtering in the library (go search Lexis - there's at least 8-10 recent law review articles criticizing his reasoning and explaining why it's unsupported in the law.) As a plurality decision, the narrowest interpretation is the one that will be used by the courts. The library may not be a public forum for a particular author or speaker (Rehnquist's theory) but it is certainly a designated public forum for the receipt of information and ideas for patrons, whose own Constitutional right to receive information cannot be burdened by state censorship (not considered by Rehnquist at all.) That's what Kennedy was saying - when the library user can show that the public agency is preventing access to Constitutionally protected materials that would otherwise be available, it is likely that the agency will be held responsible for violating the user's Constitutional rights (just as the libraries in Wichita Falls and Cedarville were held liable for "hiding books.") Thus, to avoid liability under the Constitution, the library must have in place policies that allow for unblocking or disabling the filter, as the FCC itself recognized and required.And frankly, the problem with saying "porn" all the time is that your porn may be my sex ed and information website, or my fine art website. We see this all the time - I doubt that even you would dispute that Toni Morrison's "Beloved" is literature, yet there was that group that filed a complaint with local and federal prosecutors complaining that it was obscene. Should that group's values dictate the library's "collection development" policy, or should there be a broader policy in place that recognizes the vast range of interests and opinions of library users?The Internet is a resource that the Supreme Court itself has granted full First Amendment protection. With appropriate policies in place, the presumption should be that library patrons are capable of using it to find the information they need without a nanny standing over them, and that it's a good thing to have such a vast resource available for the library's users.

This is pointless, you make things up and have no clue what you are talking about.

You said: And I flatly disagree that Rehnquist's four justice opinion serves to justify mandatory filtering in the library

However my previous post noted: I don't see where anyone said CIPA or the Court's review of CIPA requires mandatory filtering of all Internet access.

I have no idea with whom you are disagreeing. Frankly your posts are too long to read in their entirety.

The Internet can no more be granted First Amendment Rights than my cat. The FCC is not the arbiter of law.

So why do you want people in your library looking at porn? If you think a legitimate sexual health or sexual education website is porn you have less of a clue than I granted you. is not a legitimate site for patrons in a public library to access no matter how authoratative its reproductive health information may be.

Sorry that "my overlong posts" which provide the underlying basis for my statements bother you. I try to avoid making unsupported arguments; I assure you that I do know what I am talking about.

You said: The Internet can no more be granted First Amendment Rights than my cat. The FCC is not the arbiter of law.

Well, good thing for those of us who believe in the Bill of Rights that the Supreme Court disagrees with you. It was a 9-0 unanimous decision, Reno v. ACLU, that granted full First Amendment protection to the Internet:

"...the Internet can hardly be considered a "scarce" expressive commodity. It provides relatively unlimited, low cost capacity for communication of all kinds. The Government estimates that "[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999." This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, "the content on the Internet is as diverse as human thought." We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.

-- Reno v. ACLU,117 U.S. 2329 (1997)

And whether you like it or not, Congress explicitly gave the FCC authority to implement and administer CIPA, that, is, to be the "arbiter" of the law.

You also said earlier: "It is important to note that the library, may, but not shall nor must, unblock." Forgive me for assuming, based on this statement and others like it, that you believe that publicly funded libraries are free to block access to Constitutionally-protected websites on the Internet, whether the blocking takes place under CIPA or otherwise.

My point is that unblocking or disabling the filter on request is NOT an option for the publicly-funded library under the First Amendment, whether under CIPA or otherwise. Materials published on the Internet get the same protection as books. Libraries that block access without providing the option of disabling risk lawsuits - and, as demonstrated by the investigation in Rhode Island and the lawsuit in Washington State, the ACLU is willing, no, eager, to go after libraries that fail to unblock or disable filters.

We appear to agree that the public library has a binary option: provide access to the Internet, or not. But given the weight of legal authority, once the library provides access to the Internet, content-based censorship of protected materials on the Internet is Constitutionally problematic. Claiming that libraries can censor Internet access under the rubric of "collection development" is intellectually dishonest when, in fact, the library is not making any collection development decisions at all, but instead passing the buck to a privately owned filtering company that doesn't make decisions under any kind of professional standard (and indeed, often fails to provide any rationale for its blocking decisions because that's "proprietary information.")

And unfortunately, too many people CAN'T or WON'T distinguish between sex ed materials and Hustler, and try to make their views policy in the public library, relying on over-generalized statements like yours to back up their demands.

Finally, as long as hands are on the keyboard and eyes are on the screen, I don't give a damn what a person is reading on his or her computer. It's the same money if they're reading CNN or not. If I can't tell what he or she is reading and he or she looks like any other computer user in the library, it's fine by me, until they start engaging in illegal activity.

So obscene content on the Internet is protected?

You have no clue.

I give up; you are too emotionally invested in letting perverts use library computers it is not worth providing a substantive response.

Chalk this up to another reason I don't practice law in this country, everybody thinks they can too, no matter if they read law at university or not.

Filters are fine, the county exec can require a strict policy before she gives discretionary funds, libraries are not required to unblock internet sites.

You are the one so invested in your viewpoint that you attribute arguments to those who disagree with you that they never make. At least I provide actual support for my statements.As for the rest, go quarrel with the nine Supremes; they're the ones who said the Internet has full First Amendment protection. I am precise: I noted that the First Amendment protects library users' access to Constitutionally protected materials on the Internet. Obscenity is not constitutionally protected. But sexually explicit content does fall into the category of protected speech, as the Supremes noted in the Sable Communications decision. Unless and until a court declares materials obscene, they're protected. Look how often the Supreme Court's struck down laws trying to prohibit or regulate sexually explicit content on the Internet as plainly unconstitutional.Filters are not fine in the public library; it's a public agency obligated to operate under the First Amendment (and any free speech clause in the State's constitution, as well.) Go tell someone that they can't access "Women and the Second Amendment" because the filtering software company you use to block access to the dreaded "porn" says it's a bad site, and see how that argument holds up in front of a court.

The issue is pornography, the independence of an independent agency ceased when they accepted money from the county. If they feel that strongly about it reject the county's money. Sure that will piss off many, many library patrons and tax payers, but the principle of independence of the library board (which indeed is appointed by the legislature and can be removed like a US Attorney, so really independence is not possible) to run the library and its six books and one employee will be sacrosanct.

That board is appointed by the same county legislature that hired the county manager. Do you think the board is in favor of porn in the libraries?

This isssue happens time and time again and it makes libraraians look like idiots when they try to force the concept of everything on the internet should be available to anyone who wants to see it at the library. No one, save radical librarians and perverts, wants anyone to be able to look at dirty pictures at the library.

Library access to the Internet is not a Right. Library access to pornography (or pictures of cute fuzzy puppies) is not a right. Internet access at the library does not constitute a public forum.

It is the county's money if they say no dirty pictures on the Internet or you don't get our money that is perfectly legal.

There is no splitting hairs over pornography vs. obscenity. It is not a question of protected speech or not, the county can and is setting rules about how its money can be spent. If it were fifty bucks the library would tell them to forget it, but more than six million dollars apparently is important to the MCLS.

Whims???If you think she's having an attack of "whims," then you need to drop your ideological blinders and look at the huge, ever-building public anger over this issue. All across the country, local TV stations are re-doing this porn-in-the-library story, reporting on their own library systems and -guess what? - having no difficulty getting the video evidence!She isn't violating state and federal law. On the contrary, she is absolutely right: "Yet Brooks counters that the library isn't required by federal law to unblock Web sites deemed inappropriate." It sure isn't, and librarians shouldn't be unblocking pornographic sites in a taxpayer funded public library. Ya'll are going to pay a terrible price and gut the profession over this one.

It sure isn't, and librarians shouldn't be unblocking pornographic sites in a taxpayer funded public library.Okay so no porn sites, fine. What about excplicit books? Should we buy books with graphic sex scenes in them? How graphic is too graphic? Are the Harelquin Blaze novels too graphic? What about The Story of O? I'm sure the mind could conjur up far more lurid images than could ever be photographed and posted online. So where do you draw the line?Explicit movies? Well, we probably shouldn't have copies of Cannibal Holocaust in the collection, but what about Boys Don't Cry? It's got nudity and a fairly graphic rape scene. It also won an Oscar and a Golden Globe. There's plenty of movies out there that many would consider "explicit" or even pornographic which also won major awards and thus make them fodder for any decent library media collection.What's pornographic? Pictures of naked people? What about anatomy books and sexual health books? They're full of pictures of naked people, some of them in sexual situations. Taxpayers bought those books too. And if we're going to get so hung up on what taxpayers buy, then I think we should probably save the library for last. Taxpayers buy a lot of things they don't agree with and they get little to no say in the matter. My police department bought new Chevy Impala cruisers. I thought they should go with a Ford model.Not offensive enough? Okay, my tax dollars helped to buy ammunition which was used to kill Pat Tillman in a "friendly fire" incident. I find that far more offensive than anything in any library anywhere. I got no say in it, no vote, no note, nothing.Some folks shout about what the etherial "taxpayers" want. Then they point at sensationalized news stories about porn at the library. Folks, almost any filter can be defeated by leaving the country and finding foreign porn sites, especially if they're not rendered in an ASCII code set. It's not hard, and at worst it's merely time consuming. Besides, a good friend of mine is a journalist. He's seen it time and time again where, if you can't find a story, go make one. Preferrably, make it something about sex or children. If you want to lead the news that night, make it something about sex and children.Going back to one more question about porn and the slippery slope, what's porn? I know of a book. It's full of naked children. Some of them are laying next each other, and in some cases, multiple children are piled next to each other. Some are kissing, most all of them are nude.Child porn? Nope, it's an Anne Geddes book. Context is king.

Ideological blinders? You didn't read my comment, was that because of your own blinders. I stepped over the pornography issue to ask a more reaching question regarding the independence of an independent agency. My question is simple: Does a county executive have the authority to place conditions on funding for an independent agency? Just because the issue raising this question is pornography does not make the executives action just if it is authority they do not have. If someone with knowledge of the applicable New York laws would answer that I would be grateful. I don't think you know New York state law so I'll have to brush off your assertation.As for the pornography argument address the ideological blinders comment to the person who responded to your poorly thought-out attack on my question. They mostly certainly are ideologically blind but made a wonderful argument to counter your familly value based attack.

The County Executive can withhold the funds from the libraries. The libraries are independent entities and the county funding is discretionary. ( Read more at their website.)

The County Executive is also correct that there is no duty to make porn on the Internet available, indeed there is no duty to make the Internet available. CJ Rehnquist noted (US v ALA,539 U.S. 194) that libraries offer their resources"[T]o facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality."

Furthermore on the concept of unblocking Rehnquist's majority opinion noted

To minimize this problem, a library can set its software to prevent the blocking of material that falls into categories like "Education," "History," and "Medical." Id., at 428—429. A library may also add or delete specific sites from a blocking category, id., at 429, and anyone can ask companies that furnish filtering software to unblock particular sites, id., at 430.

It is important to note that the library, may, but not shall nor must, unblock. If a patron wants a site unblocked it may be unblocked. That may embarass the patron who wants to look at dirty pictures, but as the Opinion states (and my favorit part indeed): "The Constitution does not guarantee the right to acquire information at a public library without any risk of

It seems simple to me, set a no porn policy, or set filters acceptable to the county executive, or do away with Internet access if you want that $6+MM. If you want to be the public porno theatre do it without the county's money.

Seems simple to me, but what do I know I am just a librarian.

You ask: Does a county executive have the authority to place conditions on funding for an independent agency?

Yes. Library funding is not a mandated service. Please see the Monroe County Tax Information here

It has long been established that goverments may attach conditions on funds they provide. "When the Government appropriates public funds to establish a program it is entitled to define the limits of that program.†Rust v. Sullivan, 500 U.S. 173,

So to succinctly answer your question, yes the county executive can withold funds, or place restrictions on the use of those funds by the libraries.

A librarian can help you find that information if you need assistance.

Calling it a majority opinion is unfair because it is only 4 justices in the opinion. Technically it is a plurality opinion.That said, COPA has been overturned a number of times (most recently in 2002) and CIPA (the law at issue in ALA v. US) only mandates filtering for Federal grants, not library operation. It could easily be argued that shutting down the library is a violation of the residents First Amendment rights (library access being maintained in several cases to be a right).It is indeed a slippery slope argument.I would point out that pornography is protected speech where obscenity is not. Where is the line? Well, to quote Justice Potter Stewart "I know it when I see it."

At best a tertiary source, not authoritative. Sort of like making a argument off of a USA Today Infographic. Just because the county webmaster didn't include the library doesn't mean it's not a mandated service. I'm betting it is. Still doesn't answer my question of continuity of funding requirements, if they exist in New York State. Establish vs continuation.

I agree. And ACLU v. Gonzales, ED Pa, 3/2007 is also relevant.

"The Monroe County Library System is governed by an 11-member board of trustees appointed by the County Legislature."Sounds like an independent board to me. Then what do I know, I'm just a librarian. No where on the library website do I see where the county executive has authority to withold funding. I really think the answer is going to be found in New York State Law, not on a county or library website. When I get sometime I'll gander the state code and see if I can find an authoritative answer.The issue is not pornography. Pornography is the lightning rod used by local news to make a story out of nothing. The independence of an independent agency is the issue.Sure the library should review the pornography policy. All policies are fair game for review and should be continuously reviewed and discussed. The library board meeting is the proper place. The county executive is playing a war of soundbytes.

Withhold funding is neglect. End of story.