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The Internet Policy Challenge
Public library trustees are responsible under state law to adopt reasonable rules and regulations to govern use of the library and personnel concerns. These rules and regulations, known as policies, are enforceable only if they are in writing, adopted by the library board during an open meeting, and promulgated to the public.
Why do libraries need policies? Whenever you have competing legitimate interests, you need a policy. You would not need a circulation policy if you could supply an unlimited number of the same bestseller to everyone who requests it. You would not need a policy about the hours the library is open to the public, if your resources allowed you to keep the library open, fully-staffed, for 24 hours a day. Library policies always attempt to balance the mission and resources of the organization with the needs of the patrons.
One of the most difficult areas of policy development at this time is the formulation of an Internet access policy.
As a library board discusses this issue, trustees will review the four legal tests of good policy: legality, reasonableness, nondiscriminatory application, and measurability. Most probably, trustees will be immediately challenged by the requirement of legality. What is legal in regard to Internet access? What are the requirements of Michigan and federal law in this area? These questions may be easily answered in regard to other issues, such as accommodating seeing-eye dogs and other service animals in the library. Why is this such a difficult question to answer in regard to Internet access policy?
Internet access policy puts the public library squarely in touch with free-speech issues. The United States Constitution in the First Amendment prohibits Congress from passing any law infringing free speech. This prohibition has been extended to the states and public entities by virtue of the Fourteenth Amendment and Michigan's state constitution. The federal courts have consistently held that our constitutional right of free speech embraces not only our right to express, but our right of access to the printed word and information. Libraries, by definition, are the premier places for access to information.
The Supreme Court, in a number of cases, has held that adults have full access to speech, except for narrowly defined limits: obscenity, child pornography, and defamatory speech. Those materials are illegal in whatever format they appear. A library board's ability to restrict an adult's access to materials found on the Internet, as well as in print, will be limited to those three categories. However, the Supreme Court has also held that the constitutional rights of minors may be somewhat restricted because there is a recognized interest in protecting children. Most states, following the Supreme Court's guidance in this area, have enacted laws that prohibit the dissemination or sale to minors of materials deemed "harmful to minors." This category of materials is often referred to as being "obscene for minors" and it is very narrowly defined on the state level in order to pass constitutional muster.
In trying to strike a balance between what adults may have access to and what may be kept away from children, the Court has adopted a stringent level of review called "strict scrutiny." In order to pass Constitutional muster, Congress or the state legislatures must show that there is a compelling state interest to be protected by the law, such as the protection of children, and that the means used to restrict the constitutional right is the least restrictive available. This is an extremely difficult standard to meet as evidenced by the federal court's recent decisions on the Communications Decency Act, the Child On-Line Protection Act and library policies in Virginia and California.
So, what's a trustee to do? Certainly you must keep your eyes and ears open to what the courts decide in this area. Listen, too, to the library professionals and your patrons as they express their concerns. Take advantage of educational opportunities in this tricky area. Both the Michigan Library Association and the Library of Michigan will help you understand the issues and to stay current.
By Ellen Richardson
Library Law Specialist