BY FACSIMILE to (xxx) xxx-xxxx
AND BY REGULAR MAILJanuary 21, 1998B.C. Barmann
Office of the County Counsel
County of Kern
1115 Truxtun Avenue, Fourth Floor
Bakersfield, California 93301
Dear Mr. Barmann:
We have had several phone conversations over the past few months about the Kern County Board of Supervisors' decision in July 1996 to require the use of filtering software on county library computers that provide Internet access.<1> On the phone, and in your letter of December 17, 1997, you have expressed the commitment of the Kern County Board of Supervisors to comply with the First Amendment. The time has come for the Board to demonstrate that commitment by removing the filters, which block access to a wide range of valuable and constitutionally protected speech on the Internet.
Your recent letter notes that the Board has "repeatedly" instructed N2H2, the company that produces the BESS filter used in the libraries, to block access only to material defined as harmful under California Penal Code section 313.1(c). See Letter of December 17, 1997. However, the Board has known for more than a year that it is impossible for BESS or any other software program to make distinctions between protected and unprotected speech.
On September 19, 1996, in response to a request from the Director of Libraries, the President of N2H2, stated: "I am afraid that we cannot customize Kern County Library's Purchase Order to 'filter "harmful matter" by web site as defined in the California Penal Code section 313.' It seems that this is in part a legal matter and we do not have the legal expertise in house to make that judgment." See 9/19/96 Letter from Peter H. Nickerson to Diane Duquette; 8/29/96 memo from Diane Duquette to Natalina Davis, General Services.
Over a year later, N2H2 sent another letter to the County which makes no mention of any effort to tailor BESS to block access only to "harmful" material as defined by the Code. See 11/19/97 Letter from Peter Nickerson to John Irby, Deputy Counsel. Thus, today, despite the Board's year-long efforts to have the BESS filter "fixed," our research indicates that BESS continues to block access to a wide variety of sites with text and graphics that contain no "harmful" material. For over a year the County has been blocking access to many sites on the Internet that are valuable and constitutionally protected both for adults and for minors.
The use of filters also cannot be justified by the desire of some library patrons to avoid speech they find disagreeable. It has long been the law that the perceived "offensiveness" of speech or other forms of communication may not be a ground for censorship. Texas v. Johnson, 491 U.S. 397 (1989) (flag burning may not be prohibited, despite argument that many are offended by it). The censorship of online resources through the use of filters violates the First Amendment rights of adult and minor patrons of the library, as well as the First Amendment rights of the Internet speakers whose sites are blocked.
In short, the use of filtering software is simply inconsistent with both constitutional mandates and good policy. Recognizing this, the San Jose City Council recently voted not to install filters at their public libraries, and in Santa Clara the governing body of the county library system rebuffed attempts to end the library's open access policy. The American Library Association forcefully condemns the use of filtering software in libraries. See Resolution adopted by ALA Council, July 2, 1997.
Given the facts and the law, the Board of Supervisors of Kern County is obligated under the Constitution to remove the filters from the libraries. If necessary, we are prepared to challenge the Kern County Internet policy on First Amendment grounds in federal court. As you know, if we prevail on our claims, Kern County would be liable for attorneys' fees. In order to avoid the need to resolve this issue through costly litigation, the County must remove the filters from the libraries within ten days of the date of this letter.
Very truly yours,
National Legal Department
American Civil Liberties Union
<1>The Board of Supervisors passed Resolution 96-341, "to restrict access by minors over the Internet at County public libraries to harmful material as defined in the California Penal Code," on July 30, 1996. Shortly thereafter, the County contracted with N2H2 to provide BESS Internet filtering software at over 50 Internet access terminals in the Kern County library system.