of Access to Information
In a small school
in Winter, Wisconsin, 16 year old Burklin Nielsen was using the Internet during
after school computer lab to look up information on the Wiccan religion. She
was told by a lab monitor that she could not look at such information. The student
and her family filed a complaint with the state Department of Public Instruction.
The matter was resolved when the Superintendent wrote a letter to the student
admitting that an error had been made .
The issue of students'
rights to access information and ideas may arise in two situations:
and Supervision. District staff may indicate to a student whether or not the
student can view certain material or use certain material in the context of
class work. If the staff restricts access to information based on viewpoint
discrimination, such as the example set forth above, this would be a violation
of the student's rights.
- Technology Protection
Measure. A district may select, configure, and/or implement the use of a Technology
Protection Measure in a manner that imposes on students' rights to access
information within an educational environment.
What are Students'
Rights of Access to Information?
The leading case
student's right to access information is the case of Board of Education, Island
Trees Union Free School District No. 26 v Pico . The Pico case involved a school
board's decision to remove some books from the school library after receiving
a list of "objectionable" books from a politically conservative organization.
The board failed to follow district procedure in the determination of the appropriateness
of the materials for optional reading in the school library. In this context,
the Court stated:
may not, consistent with the spirit of the First Amendment, contract the spectrum
of available knowledge. In keeping with this principle, we have held that
is a variety of contexts the Constitution protects the right to receive information
In our system,
students may not be regarded as closed-circuit recipients of only that which
the State chooses to communicate. ...[School] officials cannot suppress 'expressions
of feeling with which they do not wish to contend.
(J)ust as access
to ideas makes it possible for citizens generally to exercise their rights
of free speech and press in a meaningful manner, such access prepares students
for active participation in the pluralistic, often contentious society in
which they will soon be adult members. ...
always be free to inquire, to study and to evaluate, to gain new maturity
and understanding. The school library is the principle locus of such freedom.
... In the school library, a student can literally explore the unknown, and
discover areas of interest and thought not covered by the prescribed curriculum.
(W)e do not deny
that local school boards have a substantial legitimate role to play in the
determination of school library content. We thus must turn to the question
of the extent to which the First Amendment places limitations upon the discretion
of (the school board) to remove books from their libraries. ...
If there is any
fixed star in our constitutional constellation, it is that no official, high
or petty, can prescribe what shall be orthodox in politics, nationalism, religion,
or other matters of opinion ... If there are any circumstances which permit
an exception, they do not now occur to us. ...
has been reaffirmed in later cases involving education. ... (T)he First Amendment
... does not tolerate laws that cast a pall of orthodoxy over the classroom
to the present case, the message of these precedents is clear. (The school
board) rightly possess(es) significant discretion to determine the content
of their school libraries. But that discretion may not be exercised in a narrowly
partisan or political manner. ... Our Constitution does not permit the official
suppression of ideas. ...
In brief, we
hold that local school boards may not remove books from school library shelves
simply because they dislike the ideas contained in those books and seek by
their removal to "prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion." Such purposes stand inescapably
condemned by our precedents .
There are potential
constitutional problems related to the installation of Technology Protection
Measures in schools, especially those products that Block by URL Lists. A recent
case involving a public library, Mainstream Loudoun v. Board of Trustees of
the Loudoun County provides an excellent basis upon which to evaluate district
protections of student rights.
In Loudoun, the
public library had placed blocking software on all computers. This decision
was challenged in court by residents in the community and owners of web sites
that were blocked, with support from free speech advocacy groups. The Court
found that the implementation of the blocking software on all computers in the
library violated the constitutional rights of library patrons to access material
and ideas. Issues that were raised in this trial have direct application to
the school environment. Clearly, school officials have greater discretion in
the determination of the appropriateness of material for students, however,
as established in Pico, this discretion may not be exercised in a manner that
fails to demonstrate appropriate respect for the First Amendment rights of students.
In Loudoun, the court addressed the issue of prior restraints, a situation in
which the government has control over the access of individuals to information.
restraints of speech is an essential component of the First Amendment's free
speech guarantee. ... "Permitting government officials unbridled discretion
in determining whether to allow protected speech presents an unacceptable
risk of both indefinitely suppressing and chilling protected speech."
... In ..., the Fourth Circuit found that
of freedom of speech afforded by the First Amendment is abridged whenever
the government makes the enjoyment of protected speech contingent upon obtaining
permission from government officials to engage in its exercise under circumstances
that permit government officials unfettered discretion to grant or deny
the permission. . . . Such discretion exists when a regulation creating
a prior restraint on speech fails to impose adequate standards for officials
to apply in rendering a decision to grant or deny permission or when a regulation
fails to impose procedural safeguards to ensure a sufficiently prompt decision.
procedural safeguards have been required by the Supreme Court:] "(1)
any restraint prior to judicial review can be imposed only for a specific
brief period during which the status quo must be maintained; (2) expeditious
judicial review of that decision must be available; and (3) the censor must
bear the burden of going to court to suppress the speech and must bear the
burden of proof once in court."...
In other words,
even unprotected speech cannot be censored by administrative determination absent
sufficient standards and adequate procedural safeguards. ...
It is undisputed
that the Policy lacks any provision for prior judicial determinations before
material is censored. ...We find that the Policy includes neither sufficient
standards nor adequate procedural safeguards. As to the first issue, the defendant's
discretion to censor is essentially unbounded. The Policy itself speaks only
in the broadest terms about child pornography, obscenity, and material deemed
harmful to juveniles and fails to include any guidelines whatsoever to help
librarians determine what falls within these broad categories.... There are
no standards by which a reviewing authority can determine if the decisions made
The degree to which
the Policy is completely lacking in standards is demonstrated by the defendant's
willingness to entrust all preliminary blocking decisions -- and, by default,
the overwhelming majority of final decisions -- to a private vendor, Log-On
Data Corp. Although the defendant argues that X-Stop is the best available filter,
a defendant cannot avoid its constitutional obligation by contracting out its
decisionmaking to a private entity. Such abdication of its obligation is made
even worse by the undisputed facts here. Specifically, defendant concedes that
it does not know the criteria by which Log-On Data makes its blocking decisions.
See Bradshaw Dep. ... (stating that LogOn Data has refused to provide defendant
with the criteria it uses to block sites). It is also undisputed that Log-On
Data does not base its blocking decisions on any legal definition of obscenity
or even on the parameters of defendant's Policy. See Bradshaw Dep. ... (agreeing
that "there is neither any attempt nor the ability by [Log-On Data] to
apply a legal test"). Thus, on this record, we find that the defendant
has not satisfied the first prong of prior restraint analysis, establishing
In addition, the
Policy also fails to include adequate procedural safequards. The three minimum
procedural safeguards required are (1) a specific brief time period of imposition
before judicial review; (2) expeditious judicial review; and (3) the censor
bearing the burden of proof. The Policy, even including the alleged protections
of the unofficial unblocking policy, is inadequate in each of these respects.
First, the Policy itself contains no provision for administrative review, no
time period in which any review must be completed, and no provision for judicial
review. ... Under the unofficial unblocking policy,, a library patron who finds
herself blocked from an Internet site she believes contains protected speech
is required to request in writing that the librarians unblock the specified
site. ... If the librarian determines that the site does not fall within the
Policy's prohibitions, he will unblock it, although there is no systematic way
in which this is done. There is no time period during which this review must
occur and there is no provision for notifying the requesting patron if and when
a site has been unblocked. ...
The second required
procedural safeguard is expeditious judicial review after the administrative
decision is made. There is no provision whatsoever in the Policy for judicial
review of any blocks.... This makes the question of who carries the burden of
proof in any judicial review proceeding, the third required procedural safeguard,
moot. Because the Policy has neither adequate standards nor adequate procedural
safeguards, we find it to be an unconstitutional prior restraint .
How many districts
have established an environment where there are no clear standards regarding
material that students may or may not access, where all preliminary blocking
decisions and the overwhelming majority of final decisions have been entrusted
to a private vendor without full knowledge of the criteria by which this vendor
makes its decisions, and with no mechanism in place to ensure rapid and fair
review of the blocking actions of the product?
Recall that the
case of Pico, the Court was especially concerned that the list of 'books that
should be banned' had been provided to the board members by a conservative political
organization. The Court reaffirmed the right of the board and school officials
to make decisions about materials to provide to students. In fact, the principal
objection set forth in dissenting opinion in the case argued strenuously that
school board officials, administrators, and teachers should be responsible for
making decisions about the appropriateness of certain material for students,
not the courts.
The library in
Loundon also argued that use of the filtering software was the least restrictive
alternative. The court addressed this issue as follows:
Restrictive Means Are Available
that the Policy is constitutional because it is the least restrictive means
available to achieve its interests. The only alternative to filtering, defendant
contends, is to have librarians directly monitor what patrons view. Defendant
asserts this system would be far more intrusive than using filtering software.
Plaintiffs and intervenors respond that there are many less restrictive means
available, including designing an acceptable use policy, using privacy screens,
using filters that can be turned off for adult use, changing the location
of Internet terminals, educating patrons on Internet use, placing time limits
on use, and enforcing criminal laws when violations occur.
Court noted that "[t]he Government may regulate the content of constitutionally
protected speech in order to promote a compelling interest if it chooses the
least restrictive means to further the articulated interest ."
There are newer
Technology Protection Measures coming onto the market that provide a less restrictive
alternative to the products that are in most schools. Should these products
be considered a less restrictive alternative?
Neither CIPA, nor
any other law, will provide immunity to district against a claim that it has
selected, configured, or manages its Technology Protection Measure in a manner
that is restricting student access to constitutionally protected information
or ideas. The public library in Loudoun sought to dismiss the action based on
47 U.S.C. § 230(c)(2)(A) . I the final opinion the court stated:
requested that we reconsider our previous finding that it is not immune from
this litigation pursuant to a provision of the 1996 Communications Decency
Act granting absolute immunity to good faith users of filtering software.
See 47 U.S.C. § 230(c)(2)(A). In our previous opinion, we found that
§ 230 provides immunity from actions for damages; it does not, however,
immunize defendant from an action for declaratory and injunctive relief. We
see no reason to stray from our earlier decision, which is the law of this
case. If Congress had intended the statute to insulate Internet providers
from both liability and declaratory and injunctive relief, it would have said
The primary focus
of free speech advocates at the time of the writing of this document is the
case filed by the American Civil Liberties Union and the American Libraries
Association that is challenging the constitutionality of CIPA in the context
of public libraries. This case is scheduled to be heard in early 2002. Evidence
presented in this case will further demonstrate the concerns related to over-blocking.
After this case is tried, free speech advocacy groups may seek other means to
address concerns about over-blocking. It is likely that school districts that
have not selected, configured, and implemented their Technology Protection Measures
in a manner that respects students' First Amendment rights of access to information
and ideas will come under increased scrutiny.
seek to implement CIPA in a manner that does not interfere with the constitutional
rights of students to receive information and ideas. The Internet is considered
by some to be the world's greatest library. Schools do a substantial disservice
to students if they allow a private company to make the sole determination about
the availability of access to materials in this library. Districts should not
dismiss the importance of student's First Amendment rights with a rationalization
that since students have access to more information than they did before the
Internet, the fact that they are prevented from getting to some material is
of no concern.