Filth, Filtering, and the First Amendment: Ruminations on Public Libraries' Use of Internet Filtering Software

I. INTRODUCTION When First Amendment lawyers wax eloquent about freedom of speech, they almost invariably turn to New York Times v. Sullivan,(1) a decision that unquestionably qualifies as a First Amendment icon. Sullivan involved a defamation claim against the New York Times and several civil rights leaders for an advertisement printed in the Times that condemned the conduct of the Montgomery, Alabama police force.(2) When free speech devotees mention Sullivan, they almost invariably quote the following passage from Justice Brennan's opinion for the Court: [W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.(3) The Sullivan case dealt primarily with a mass media entity, the New York Times,(4) and media organizations have been the most zealous guardians of Sullivan and its progeny--virtually every major United States Supreme Court defamation case has involved a media defendant. Discussions in the mass media, such as newspapers, television, radio, and magazines, may reflect a somewhat diverse array of perspectives, but most of these channels of communication are controlled by sizeable organizations.(5) Size often leads to expression of conventional viewpoints, not the "uninhibited, robust, and wide-open" debate celebrated in Sullivan.(6) The Internet has, in many ways, moved society closer to the ideal Justice Brennan set forth so eloquently in Sullivan. It has not only made debate on public issues more "uninhibited, robust, and wide-open," but has similarly invigorated discussion of non-public issues. By the same token, the Internet has empowered smaller entities and even individuals, enabling them to widely disseminate their messages and, indeed, reach audiences as broad as those of established media organizations.(7) For example, in April 2000, a wildly inaccurate summary of New York Mets Manager Bobby Valentine's comments to a group of students at the Wharton School was posted on the Internet by one of the students. The student, who adopted "Brad34" as his Internet name, had no journalistic training nor work experience for any news organization that would attempt to ensure the accuracy of his material. Brad34's concededly "inventive" summary of Valentine's remarks caused such controversy that the Mets General Manager flew to Pittsburgh to confront Valentine regarding his alleged statements. Sportswriter George Vecsey succinctly described the incident's denouement--"After four days, the Mets sorted out this foray into the wonderful world of the Web, where anybody with a mouse can be Matt Drudge."(8) A second example involved renowned fashion designer Tommy Hilfiger. Internet postings "reported" two appearances of the designer. During the first, an interview on CNN's Style With Elsa Klensch, Hilfiger allegedly asserted that Asians did not look good in his clothes. During the second interview, which reportedly took place on an episode of Oprah, Hilfiger allegedly made a similar comment regarding African Americans. Though the reports were widely disseminated and ultimately prompted a public denial by Hilfiger, it turned out that not only had Hilfiger not made the comments, but he had never appeared on either show.(9) The very "uninhibited, robust, and wide-open" nature of the Internet illustrated by the previous episodes, as well as others,(10) has provoked varied attempts to control speech on the Internet. Among such efforts is the promotion of filtering software,(11) for use not just by private individuals, but by public libraries as well.(12) The demand for filters mostly stems from concerns about sexually explicit material,(13) even though filters have been developed for other uses, such as blocking sites containing racially and ethnically derogatory speech.(14) The controversy swirling around the use of filtering software by public libraries raises issues that, as this Article will argue, have yet to be resolved satisfactorily. …