By Norman Oder

A month after the board of the Monroe County Library System, NY, agreed to tighten its Internet policy, the board of the Rochester Public Library (RPL), which is funded by the county and serves both systems, accepted the policy as well. Monroe County executive Maggie Brooks threatened to deny $6.6 million to Rochester’s Central Library if Internet pornography were not banned.

The recommendation of a joint task force has the following provisions: "web sites identified by the library’s filtering product as pornographic will be blocked on all Rochester Public Library computers; users 17 and older may request in writing that a blocked site be reviewed if they believe a site has been blocked in error; and the Library Director or his or her designee will review the site and make a judgment based on the library’s collection development policy that will determine whether the site can be accessed in the library."

"This was a difficult decision, which was arrived at following careful review of the First Amendment, state law and censorship concerns," the board said in a statement. "The Board concluded that the Central Library is too valuable to the community to allow any disruption of service."

The policy raises questions regarding implementation of the<Children’s Internet Protection Act (CIPA). While CIPA authorizes library officials to "disable" a filter altogether "to enable access for bona fide research or other lawful purposes," the Supreme Court’s four-member plurality opinion did not suggest that a library user asking for a site to be unblocked must have it tested against a collection development policy. The opinion noted that the "Solicitor General confirmed that a ‘librarian can, in response to a request from a patron, unblock the filtering mechanism altogether,’… 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.’"

Joining the judgment, but not the opinion, Justice Anthony Kennedy wrote, "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." Justice Stephen Breyer, who also joined the judgment but not the opinion, similarly noted that "any adult patron access can ask… a librarian to unblock the specific Web site or, alternatively, ask the librarian, ‘Please disable the entire filter.’" 

Unlike the four justices in the plurality, Kennedy and Breyer did not set up an analogy between the decision to filter the Internet and a library’s collection policy, though Breyer did suggest that a request for unblocking is no more onerous than segregating library materials in closed stacks or interlibrary lending processes. There are further complications; the print analogy to Internet pornography is hardly collected by libraries, but CIPA refers to obscenity, not pornography, and much of the latter is constitutionally protected.