Libraries and the Internet, Part I:
Some Constitutional Background

Rinda Y. Allison and Scott F. Uhler

The availability of Internet access to public libraries has raised a host of concerns regarding free speech rights and library liabilities related to providing or denying full Internet access to library patrons. This article, which examines the constitutional background for free speech and Internet provision, is the first of a three-part series which will be concluded in 1998. The second article will address possible library liability issues relating to the Internet and the restriction of Internet access for minors or adults. Finally, the third part will address what steps can be taken or what options are available for libraries regarding Internet access, including recommendations for best practice.

1776 AND ALL THAT

When the framers of the Constitution and their immediate critics, the framers of the Bill of Rights, were assigning rights and powers, they mentioned only three entities: the federal government, the states and the people. There is no U.S. Constitutional mention of cities, villages, school districts, drainage districts or even public libraries. These and other units of local government were created by the states and are, thus, sometimes referred to as "creatures of the state." Creatures of the state have only the powers granted to them by law or the Constitution.

A Constitution is a grant of rights by a people to a government. It establishes the powers of the government, provides a framework for the exercise of those powers and sets limits on the government's powers. Because many of our founding fathers felt that the original Constitution did not contain enough guarantees of personal rights, the Bill of Rights also was drafted and came into effect just two years after the Constitution.

The First Amendment of the Constitution, "Congress shall make no law... abridging the freedom of speech...," applies to the states as well as to Congress through the action of the Fourteenth Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States... nor deny to any person within its jurisdiction the equal protection of the laws." What applies to the states generally, of course, also applies to the local governments created by the states. Thus, all public libraries in Illinois are subject to the First Amendment's strictures.

But remember that the First Amendment does not guarantee free speech, nor is all "speech" protected by the First Amendment. The First Amendment merely guarantees that governments (Congress, states, local governments) shall not abridge the freedom of speech. Non-governmental bodies such as clubs, churches and families are free to limit speech at their own discretion. To show the applicability of the First Amendment, it is necessary to show governmental involvement, sometimes referred to as "state action."

NOT ALL "SPEECH" IS WORDS

"Speech", of course, refers to more than the spoken word. The written words in books are speech. So also are a number of expressive activities, wearing a black arm band to protest the Vietnam war (Tinker v. DeMoines, 393 U.S. 503 (1969)), picketing (Police Department v. Mosely, 408 U.S. 92 (1972)), remaining silent during the pledge to the flag (West Virginia v. Barnette, 319 U.S. 624 (1943)). Even burning the American flag (U.S. v. Eichman, 496 U.S. 310 (1990)) and nude dancing (Barnes v. Glen Theater, 501 U.S. 1030 (1991)) have been considered by the U.S. Supreme Court as expressive activities protected as speech. Relative to the Internet, the words and images that appear on a computer screen also constitute speech.

NOT ALL SPEECH IS EQUALLY PROTECTED

Despite the First Amendment's guarantee that government will not abridge the freedom of speech, some limitations are constitutional, and some words have no protection at all. Shouting "Fire!" in a crowded theater, words spoken to incite riot, and defamatory statements are not protected speech. Obscenity is not protected

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speech. Commercial speech has only limited protection; "core political" speech has the fullest protection possible. While the First Amendment limits governmental interface with what speech is appropriate or acceptable, speech may be regulated by "content-neutral" laws that apply to the "time, place and manner" of the speech. It is time, place and manner restrictions that allow cities to regulate things like the size and placement of billboards or the time of day charitable solicitors may call at homes to request contributions.

Moreover, the protection granted to speech depends not only on the kind of speech it is, but also on who is spoken to and where the speech occurs. For example, speech directed at or available to minors may be subjected to more regulation than speech to adults because of the state's significant interest in protecting children. Therefore, regulation of the sale of certain magazines considered indecent for children was considered constitutional despite the protected nature of the magazines themselves. Ginsberg v. New York, 390 U.S. 629 (1968). Similarly, regulation of radio broadcasts to prevent use of certain "dirty words" at times when children were likely to be listening was upheld. FCC v. Pacifica Foundation, 438 U.S. 726 (1978). But even the laudable goal of protecting children from indecency did not save the recent federal legislative initiative known as the Communications Decency Act.

The protection of speech may also depend on where the speech occurs. Certain locations are considered public forums, intended for the fullest, most open exchange of ideas. Streets, sidewalks and public parks are traditional public forums. Speech in a public forum is granted the fullest constitutional protection. Other locations may be designated as public forums when a governmental body opens the location for multiple uses. Locations like public libraries, however, are generally designated as "limited public forums." A limited public forum is one operated by a government or governmental agency for a specific purpose, and speech in a limited public forum may be regulated to a certain extent consistent with the governmental purpose. For example, a homeless person did not have the right to remain in a public library when his behavior (considered nonverbal "speech") was inconsistent with and disrupted the purpose of the library (considered to be the obtaining of information and quiet contemplation). Kreimer v. Bureau of Police, 958 F.2d. 1242 (3rd Cir. 1992).

The conclusion to be drawn from all this is that when courts consider the degree of protection that certain speech is entitled to, they will consider who is being spoken to (minors or adults), where the speech is made (public forum or not), what kind of speech it is (political, commercial, etc.) and how it is being "abridged" or regulated (time, place, manner restrictions are permissible).

COURT ANALYSIS OF SPEECH REGULATIONS

When a government acts to regulate or restrict speech and is sued over the constitutionality of that action, courts examine the regulations in one of three ways, depending on the answers to the who, where, what and how questions. The court may apply what is known as a "strict scrutiny" test, which requires that the government show that the imposed regulation is necessary to achieve a compelling governmental interest and does so using the least restrictive means possible to achieve that interest. Strict scrutiny is applied to any content-based regulation of speech in a public forum. The court may apply an "intermediate scrutiny" test, in which the government must show a substantial governmental interest and a regulation narrowly tailored to meet that interest. Speech in a limited public forum like a library would likely be analyzed in this way, as would content-neutral time, place and manner regulations, even in a public forum. Or, the court may apply "rational review" (i.e., slight scrutiny), where the government must only show a legitimate interest and a law rationally related to that interest. Few regulations can survive strict scrutiny, and not many fail to pass the rational relationship test. Therefore, the level of scrutiny often determines the outcome of a case. Intermediate scrutiny gives the court considerable flexibility in analyzing regulations; it is harder to predict a case's outcome when intermediate scrutiny is applied by a court.

Two other analyses are made by the courts when reviewing state action regulating speech. These consider whether a regulation is "overbroad" (a regulation banning "all First Amendment activity" in the central terminal of Los Angeles Airport was overbroad, the court said Airport Comm. v. Jews for Jesus, 107 S.Ct. 2568 (1987) and whether a regulation is so vague that a person cannot know whether he is violating it or not. Overbroad regulations prohibit more speech than is necessary to meet any of the three levels of review discussed previously. Vague regulations run the risk of preventing people from uttering protected speech because they fear they will be violating the law. Vague regulations also run the risk of giving those enforcing the law too much discretion to decide who they will enforce the law against and who they won't enforce against.

Characterizing and properly addressing the who, what, where and how of the speech in a library setting with unlimited Internet access, and the precision of Internet regulations presents some interesting challenges and some issues that have no settled answers yet. Some of these issues and the regulation of Internet access will be the focus of the next article in the series, to be published in Illinois Libraries in 1998.

* Scott F. Uhler is a partner and Rinda Y. Allison is an associate with the law firm of Klein, Thorpe and Jenkins, Ltd. with offices in downtown Chicago and in Orland Park. The firm concentrates in the representation of libraries and library districts in Illinois as well as other local governmental units.

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