QUEST KNOWLEDGE INTELLECTUAL FREEDOM ONLINE. Journal of the American Association of School Librarians

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1 KNOWLEDGE QUEST INTELLECTUAL FREEDOM ONLINE Journal of the American Association of School Librarians VOLUME 39, NO. 1 Sept/Oct 2010 ISSN American Association of School Librarians, a division of the American Library Association 50 E. Huron Chicago, IL aasl@ala.org , Ext. 4382

2 STAFF Editor Markisan Naso Consulting Editor Erin M. Larson Editorial Board Helen Adams, Consultant, Freemont, WI; Shannon Bomar, Colorado Springs Christian School, CO; Pat Dedicos, Twin Lakes Academy Elementary, FL; Megan Dolan, Sidwell Friends School, Washington, DC; Jami Jones, East Carolina University, NC; Ann Martin, Chair, Henrico County Public Schools, VA; Elizabeth Ridgway, Library of Congress, DC; Dorcas Hand, Ex-Officio Board Liaison, Annunciation Orthodox School, Houston, TX AASL President Nancy Everhart, Florida State University, Tallahasse, FL AASL Executive Director Julie A. Walker FEATURES "We need to advocate for regulations and laws that support education of young people rather than simply limiting their access to the Web." "Tag! You re it!" pg 80 Production and Design Design by Distillery Design, Madison, WI. Knowledge Quest Editor Debbie Abilock, Author Guidelines Would you like to write for Knowledge Quest? Author guidelines are available online at < under About Knowledge Quest. Advertising Bill Spilman, Innovative Media Solutions; ; fax (309) ; innovativemediasolutions.com>. Acceptance of an advertisement by Knowledge Quest does not imply product endorsement by A ASL. Knowledge Quest is read by building-level school librarians, supervisors, library educators and others concerned with the development of school library programs and services in elementary and secondary schools. Indexing and Abstracting Knowledge Quest is indexed in Academic Abstracts/CD-ROM; Book Review Index; Current Contents; Social & Behavioral Sciences; Current Index to Journals in Education; Exceptional Child Education Abstracts; Information Science and CSA Illumina. School Library Media Research, A ASL s online research journal, can be accessed at < aasl/aaslpubsandjournals/ slmrb/schoollibrary.cfm>. 16 Minors First Amendment Rights: CIPA and School Libraries Theresa Chmara 22 Censorship Online: One School Librarian s Journey to Provide Access to LGBT Resources Karyn Storts-Brinks 30 Filtering Texas-Style: An Interview with Michael Gras and Scott Floyd Helen R. Adams 38 Minors and Internet Interactivity: A New Interpretation of the LBOR Barbara Stripling, Connie Williams, Melissa P. Johnston & Holly Anderton 46 Internet Filtering 2.0: Checking Intellectual Freedom and Participative Practices at the Schoolhouse Door Barbara A. Jansen 54 Teach Them to Swim Nancy Willard 62 Everyone Does It: Teaching Ethical Use of Social Technology Annette Lamb 4 Knowledge Quest Intellectual Freedom Online

3 FEATURES cont. 68 Choose Privacy Week and School Libraries Angela Maycock 74 Teens and Privacy: Myths and Realities Frances Jacobson Harris COLUMNS & CAMEOS 80 CBC Column Tag! You re it! Playing on the Digital Playground Dianne de Las Casas "The majority of young people are making good choices online although we can reduce mistakes even further with better education An extremely effective instructional approach will be to use older students to teach younger students." Teach Them to Swim pg 54 DEPARTMENTS 6 President's Column Intellectual Freedom and You Nancy Everhart 82 Index to Advertisers 10 Guest Editor Intellectual Freedom Online: The New Battleground for Minors First Amendment Rights Helen R. Adams Knowledge Quest (ISSN ), is published bimonthly September through May by the American Library Association (ALA), 50 E. Huron St., Chicago, IL 60611; < It is the official publication of the American Association of School Librarians (AASL), a division of ALA. Subscription price to members of AASL, $20 a year, included in membership dues; to nonmembers, $50 in U.S., $60 in foreign countries. Single copies $12 from ALA. Periodicals postage paid at Chicago, Illinois, and at additional mailing offices. Change of address notices and subscription inquiries should be sent to the Subscription Dept., ALA, 50 E. Huron St., Chicago, IL POSTMASTER: Send address changes to Knowledge Quest, 50 E. Huron St., Chicago, IL The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences Permanence of Paper for Printed Library Materials, ANSI Z by the American Library Association. All materials in this journal subject to copyright by the American Library Association may be photocopied for the noncommercial purpose of scientific or educational advancement granted by Sections 107 and 108 of the Copyright Revision Act of For other reprinting, photocopying, or translating, address requests to the ALA Office of Rights and Permissions. Volume 39, No. 1 September/October

4 president s COLUMN All materials in this journal subject to copyright by the American Library Association Electronic content has upped the ante when it comes to intellectual freedom. Not only are students constrained, but teachers are also prohibited from using some of the most exciting social networking tools that are just beyond their grasp. Intellectual Freedom and You Nancy Everhart, AASL President As a school librarian of fourteen years, I never had a materials challenge, but I was always prepared for one. The closest I got to dealing with intellectual freedom issues was during my stint as a high school librarian in a small town in Pennsylvania. One day, a freshman boy (who later claimed to have been bullied) stabbed another boy in the back at his locker, and he died. What does this have to do with intellectual freedom, you might wonder? The boy who did the stabbing was an avid school library user. He came in every day during lunch and after school, read voraciously, and checked out a copious number of books each week. In fact, he's the only student I remember ever using the catalog to locate an obscure 8-mm film loop and asking to view it for research he was doing personal research that some might find ''questionable.'' I was convinced that the school administration and law enforcement would grill me and ask to see his library records, so I braced myself. I went back and reread ALA's Privacy: An Interpretation of the Library Bill of Rights. I checked and rechecked the automated Judith Krug Advisor, author, and public servant, Judith Krug was a remarkable leader in the struggle to educate the public concerning the right to the free expression of ideas. Judy was an inspiration to all who knew her. system to make sure there was no way to bring up any kind of checkout history. And then I called the ALA Office for Intellectual Freedom (OIF). The indomitable Judith Krug, OIF director at the time, personally took my call, and I will never forget it. She instantly assuaged my fears, and we talked for close to an hour. Her advice was to say nothing and that probably nothing would happen. If I were questioned, she provided me with talking points and other strategies to handle the situation. Fortunately, she was right: In light of the tragedy that hit our school, the issue of what library materials this student used was trivial. I breathed a sigh of relief and silently thanked my library science professors and my professional association for how they prepared and supported me. Support from AASL and ALA As an AASL member, you are also an ALA member with access to the support and resources of the OIF < These resources range from programs at conferences to legal assistance to toolkits. Some toolkits have specific information dealing with children and young adult populations. For example, the Gay, Lesbian, Bisexual, and Transgender Toolkit contains bibliographies on Homophobia and Its Impact on Students, and Gay, Lesbian, Bisexual, and Transgender Literature in Schools. OIF activities are extended on Twitter, Facebook, MySpace, YouTube, and blip.tv. 6 Knowledge Quest Intellectual Freedom Online

5 ALA s resources also include a position statement on Access to Resources and Services in the School Library Program: An Interpretation of the Library Bill of Rights < ala/issuesadvocacy/intfreedom/librarybill/ interpretations/accessresources.cfm> and a policy on Confidentiality of Library Records < otherpolicies/policyconfidentiality.cfm>. In a variety of contexts, references to intellectual freedom are woven throughout AASL s Empowering Learners. It is specifically stated there that ''Intellectual freedom is a core value of the library profession and should be reflected in all school library policies. Learners have a right to a relevant, balanced, and diverse school library collection that represents all points of view. The [school librarian] assumes a leadership role in protecting minors' First Amendment right to read and receive information and ideas (2009, 37). Unblocking the Filter A Success Story The AASL Intellectual Freedom Award, sponsored by ProQuest, is given for upholding the principles of intellectual freedom as set forth by AASL and ALA. Recipients, who must be AASL members, are awarded $2,000, plus $1,000 for the school library of the their choice. I had the opportunity to listen to the personal saga of this year's winner, Karyn Storts-Brinks, at the AASL Awards Luncheon in Washington, DC. Her diligent efforts to have legitimate sexual orientation sites unblocked by Internet filters led to a successful ACLU lawsuit. I'm delighted and honored that Karyn has written about her experiences for this issue of Knowledge Quest. Many of you, like Karyn, have students' needs unnecessarily restricted by Internet filtering. You deal with tech coordinators and administrators who are rigid about making any adaptations to the filter. I recently had the privilege of cochairing the Library Media Standards Writing Committee for the National Board for Professional Teaching Standards. Our committee understood these challenges and wrote in the standard Integration of Technologies, ''Accomplished library media specialists understand technology issues and challenges and provide solutions to problems in a variety of settings. Within the unique environment of the school or district, the specialist uses evidence to make administrative decisions that optimize technology resources and MY PRESIDENTIAL YEAR A Vision of Excellence to Inspire Advocates By the time this is published, I will be well into my term as AASL president. I will be working toward my goal of bringing to the general public visual models of what good school libraries offer students and communities. My program is aligned with the AASL Initiative Learning4Life, particularly these two objectives: Objective 14: Identify exemplary models for implementation and transferable visual products for support for implementation at the local, district, state, and national levels (AASL 2008, 14). Objective 17: Develop a national roster of celebrity, well-known educators and organizations, and public figures as advocates for school library media specialists and programs (AASL 2008, 15). Check my website <outstandingschoollibraries.org> to see if the Vision Tour will be coming near you. If it is, I encourage you to contact the school librarian and join us. I hope to have a pep rally atmosphere at each site and to get local, state, and perhaps national people of influence involved. If you can t physically join us, follow along on the website, which I will be updating frequently. I look forward to serving as your president of AASL. Promoting and defending intellectual freedom can often be risky and painful. In today's economic climate, some school librarians don't want to take a risk that might cost them their jobs. Volume 39, No. 1 September/October

6 opportunities for the learning community. In some instances, specialists may be supported by a wide array of technical staff; in others, specialists may be expected to fulfill these technical roles. In each situation, specialists leverage their expertise. For example, specialists may provide alternatives to websites that are blocked by filters, while they continue in their efforts to have those sites unblocked'' (NBPTS 2009). Electronic content has upped the ante when it comes to intellectual freedom. Not only are students constrained, but teachers are also prohibited from using some of the most exciting social networking tools that are just beyond their grasp. As one inventive school librarian I overheard in the halls of the DC conference exasperatedly tell another, ''I took my kids to Barnes & Noble to Skype with an author.'' What Does the Future Hold? Promoting and defending intellectual freedom can often be risky and painful. In today's economic climate, some school librarians don't want to take a risk that might cost them their jobs. In a recent School Library Journal survey, 70 percent of librarians said they wouldn't buy certain controversial titles simply because they re terrified of how parents will respond. Respondents also cited: potential backlash from the administration (29 percent), the community (29 percent), or students (25 percent), and personal objections (23 percent) as reasons for self-censorship (Whelan 2009). I was taken aback by these numbers. We must continue to fight the good fight. Helen Adams, the guest editor, has, and continues to, keep our profession on its collective toes in dealing with intellectual freedom issues. Her dedication is unparalleled, and I look forward to reading what she has in store for us in this issue. AASL President Nancy Everhart is an associate professor at the Florida State University College of Information where she directs the school library media program, Project LEAD, and the PALM (Partnerships Advancing Library Media) Center. Works Cited: American Association of School Librarians. 2008, Learning4Life: A National Plan for Implementation of Standards for the 21st-Century Learner and Empowering Learners: Guidelines for School Library Media Programs. < learning4life> (accessed July 17, 2010) Empowering Learners: Guidelines for School Library Media Programs. Chicago: ALA. National Board for Professional Teaching Standards Library Media Standards (unpublished draft). Arlington, VA: NBPTS. Whelan, Debra Lau ''A Dirty Little Secret: Self-Censorship.'' School Library Journal 55, no.2 (February), Knowledge Quest Intellectual Freedom Online

7 guest EDITOR All materials in this journal subject to copyright by the American Library Association State legislators continue to introduce filtering legislation to protect minors online with particular emphasis on the use of social technologies; however, except in rare instances such as Virginia, these legislators have overlooked the power of education, favoring the use of filters. Intellectual Freedom Online: The New Battleground for Minors First Amendment Rights Helen R. Adams The impetus for the themed issue Intellectual Freedom Online began with an from Doug Johnson. Although complimentary of the Knowledge Quest November/December 2007 themed issue Intellectual Freedom 101, he commented that the articles were focused primarily on print materials. What about intellectual freedom online, he asked? Long-time Knowledge Quest editor Debbie Abilock and I agreed, and we immediately began to plan for the issue. Later in 2008, Doug stated on his Blue Skunk blog during Banned Books Week, But ALA (and ISTE), if we are truly committed to "Freedom to Read" what we really need is... Blocked Bytes Week. Americans need the freedom to read more than just books (2008). Doug s nudge gave us even more incentive to spotlight minors rights online and intellectual freedom related to the use of the Internet in schools and school libraries. Since AASL has moved to an in-house editor for Knowledge Quest, Debbie and I were unable to finish our collaboration, but she is within the issue in spirit. The Online Intellectual Freedom Landscape The parameters of intellectual freedom online are evolving and continue to be in a state of flux. More than ten years after the passage of the Children s Internet Protection Act (CIPA) and the Neighborhood Children s Internet Protection Act (NCIPA), students, teachers, and school librarians in many schools are frustrated daily when they find legitimate educational websites blocked by their schools filters. The fight also extends to use of Web 2.0 tools. In many school districts filtering blocks students and teachers access to constitutionally protected speech and is so restrictive that it amounts to online censorship. ALA s Free Access to Libraries by Minors: An Interpretation of the Library Bill of Rights states, Children and young adults unquestionably possess First Amendment rights, including the right to receive information through the library in print, nonprint, or digital format. Constitutionally protected speech cannot be suppressed solely to protect children or young adults from ideas or images a legislative body believes to be unsuitable for them (ALA 2008). State legislators continue to introduce filtering legislation to protect minors online with particular emphasis on the use of social technologies; however, except in rare instances such as Virginia, state legislators have overlooked the power of education, favoring the use of filters. The statutes vary widely, so it is important for school librarians to know their individual state s filtering laws. One source for the information is the National Conference of State Legislatures website < 10 Knowledge Quest Intellectual Freedom Online

8 Thomas Jefferson wrote, A democratic society depends upon an informed and educated citizenry (Doyle 2010, 85). In reality, schools grow citizens who must develop skills to evaluate information from all types of sources in multiple formats, including the Web. Relying solely on filters does not teach young citizens how to be savvy searchers or how to evaluate the accuracy of information. Unless all families are using parental control software, filters protect minors only when they are using the Web in schools and libraries, not during their Web use at home, in the homes of friends, or on their personal web-enabled cell phones. At the national level, in 2008 President Bush signed the Broadband Data Improvement Act, which included in Title II the Protecting Children in the 21st Century Act. The law amended CIPA to require that each school or district that participates in the E-rate program "as part of its Internet safety policy is educating minors about appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms and cyberbullying awareness and response (Broadband Data Improvement Act 2008). The Federal Communications Commission is developing rules to implement the law s requirements, and when finally in place, districts will need to certify compliance as a prerequisite for receiving E-rate discounts. E-rate schools will finally be required to teach Internet safety in addition to filtering. The legal landscape for minors rights online is unsettled, and the courts are struggling to decide cases involving clashes between students off-campus free speech rights and school discipline when the acts affect school atmosphere. The rulings are contradictory at times, as evidenced by two nearly identical cases of student online parodies ridiculing their principals (Layshock v. Hermitage School District and J.S. v. Blue Mountain) that resulted in different verdicts at the trial and appeal levels. The cases were reargued in June 2010 before a panel of federal judges of the 3rd U.S. Circuit Court of Appeals, with no resolution announced as yet (Duffy 2010). Another case in federal district court in the state of Washington (Bradburn v. North Central Regional Library District) centers on an ACLU-initiated suit on behalf of three adult library patrons and the Second Amendment Foundation alleging that the patrons First Amendment rights were violated when library staff refused to disable Internet filters when requested. Theresa Chmara s article in this issue explains the case and its implications in more depth. ALA s Free Access to Libraries by Minors: An Interpretation of the Library Bill of Rights states, Children and young adults unquestionably possess First Amendment rights, including the right to receive information through the library in print, nonprint, or digital format. Constitutionally protected speech cannot be suppressed solely to protect children or young adults from ideas or images a legislative body believes to be unsuitable for them. < librarybill/interpretations/freeaccesslibraries.cfm> What s in This Issue? The Knowledge Quest September/October 2010 issue is devoted to the varying aspects of intellectual freedom online. In Minors First Amendment Rights: CIPA and School Libraries, Freedom to Read Foundation legal counsel Theresa Chmara carefully constructs the origin and basis for minors First Amendment rights online. She describes what CIPA requires and two lawsuits involving CIPA in public library settings, and suggests the need for a system in schools and school libraries to unblock sites that do not contain obscenity, child pornography, or material harmful to minors. Karyn Storts-Brinks is a high school librarian in Knoxville, Tennessee and was one of the plaintiffs in Franks v. Metropolitan Board of Public Education, a lawsuit filed by the Tennessee ACLU against the district in which she was employed. Her article recounts a lengthy fight to overcome her district s policy of blocking gay, lesbian, bisexual, and transgender (GLBT) informative websites but allowing access to sites with a negative slant toward GLBT issues. Volume 39, No. 1 September/October

9 ALA Intellectual Freedom Statements Supporting Minors Rights Online The Library Bill of Rights: < intfreedom/librarybill/index.cfm> The Code of Ethics of the American Library Association: < codeofethics/codeethics.cfm> Library Bill of Rights Interpretations: < librarybill/interpretations/default.cfm> Access for Children and Young Adults to Nonprint Materials Access to Digital Information, Services, and Network Access to Resources and Services in the School Library Media Program Economic Barriers to Information Access Free Access to Libraries for Minors Importance of Education to Intellectual Freedom Minors and Internet Interactivity Prisoners Right to Read Privacy Restricted Access to Library Materials Services to Persons with Disabilities Michael Gras and Scott Floyd are the chief of technology and instructional technologist, respectively, for the White Oak (TX) Independent School District. My interview with them, Filtering Texas-Style, provides insights into how CIPA s requirements can be satisfied while meeting the instructional and educational needs of faculty and students. Additionally, the two portray a positive, commonsense working relationship between technology staff and instructional staff that benefits students learning and teachers instruction. Responding to the needs of members who work with youth in school and public libraries, in 2009 the ALA Council approved a new interpretation to the Library Bill of Rights: Minors and Internet Interactivity: An Interpretation of the Library Bill of Rights, which gives support to minors right to use Web 2.0 social technologies as an extension of their First Amendment right to free expression. In the four-author article, Barbara Stripling, a former ALA Intellectual Freedom Committee member and one of the drafters of the document, introduces the interpretation s concepts and explains its careful crafting. California high school librarian Connie Williams and Georgia elementary school librarian Melissa Johnston describe their students use of Web 2.0 tools and how the interpretation can provide support to librarians in K 12 schools. Lastly, Holly Anderton, a youth services librarian in Pittsburgh, articulates use of the interpretation from a public library perspective. Barbara Jansen, Upper School Librarian at St. Andrew's School in Austin, Texas, suggests that students must become less passive and more collaborative learners. She advocates for the use of Web 2.0 participatory tools and sites, despite many schools blocking of access. She expresses intellectual freedom considerations, describes her examination of thirty public school Internet safety policies with respect to Web 2.0 use, and provides strategies for persuading the principal to support the use of participative Web resources with their positive effects on student learning. Nancy Willard, executive director of the Center for Safe and Responsible Internet Use, touches on a wide range of issues, from examining current problems associated with filters and schools reliance solely on filtering to misunderstandings about CIPA requirements, and from defining disabling and overriding a filter to strategies to effectively manage Internet use. Lastly, she explains the role school librarians can play in helping schools fully utilize Web 1.0 and 2.0 resources. 12 Knowledge Quest Intellectual Freedom Online

10 In Everyone Does It: Teaching Ethical Use of Social Technology author, educator, and presenter Annette Lamb makes a case for teaching young people about their rights and responsibilities as digital citizens. She ties her ideas to the AASL s Standards for the 21st-Century Learner and Lawrence Kohlberg s six stages of moral development. She provides a decision-making process and instructional strategies to use with students. Angela Maycock, assistant director of ALA s Office for Intellectual Freedom and the lead person directing ALA s Choose Privacy Week initiative, sets forth the ethical and legal responsibility all librarians bear for protecting patron privacy. She introduces Choose Privacy Week, discusses how school librarians can have a role in the annual celebration, and describes resources to assist school library professionals in teaching students and staff about privacy issues. High school librarian and author Frances Jacobson Harris tackles the topic of teen privacy in Teens and Privacy: Myths and Realities. Introducing the concept of technopanic, Harris debunks some media reports related to teens lack of common sense related to privacy, sets forth where educators concerns should be directed, and urges the creation of digital citizenship programs. The Children s Book Council column by Dianne de Las Casas, author of Cajun Cornbread Boy, Madame Poulet and Monsieur Roach, and Mama s Bayou, describes how today s children play in a digital playground and provides interesting examples of collaborative family projects using Web 2.0 technologies. Yet, she cautions that parents and schools have a responsibility to teach students to explore and connect safely. Education for Intellectual Freedom Online In 2009 ALA Council approved the Importance of Education to Intellectual Freedom: An Interpretation of the Library Bill of Rights. The new interpretation ties the need for education to intellectual freedom: Through educational programming and instruction in information skills, libraries empower individuals to explore ideas, access and evaluate information, draw meaning from information presented in a variety of formats, develop valid conclusions, and express new ideas. Such education facilitates intellectual access to information and offers a path to intellectual freedom (ALA 2009a). The importance of student instruction over reliance on filters cannot be over emphasized. As part of a school s K 12 information and technology literacy curriculum, the school librarian and other educators should focus on implementing a school-wide program centering on safe and ethical use of Web resources. In 2007 AASL introduced its four Standards for the 21st-Century Learner. Three standards relevant to online access to information and use of social technologies state, Learners use skills, resources, and tools to: Inquire, think critically, and gain knowledge. Draw conclusions, make informed decisions, apply knowledge to new situations, and create new knowledge. Share knowledge and participate ethically and productively as members of our democratic society [emphasis added] (AASL 2007, 3). These standards will not be met if school filters continue to block Web resources and Web 2.0 participative technologies out of fear and far beyond what is required by CIPA. Responsibility for Intellectual Freedom Online One person namely, the school librarian can make a critical difference in protecting and preserving minors First Amendment rights online. The school library professional is not alone. Pro-First-Amendment groups such as the ALA and the ACLU seek to educate and advocate for minors First Amendment rights including free speech and expression online. Although school librarians are most familiar with ALA s Office for Intellectual Freedom s support during book and other library resource challenges, OIF staff also will answer filtering and privacy questions about local situations facing librarians. The eighth edition of ALA s Intellectual Freedom Manual was published in spring 2010, and a companion website is available at < Watch for the Libraries and the Internet Toolkit to be posted in fall 2010 on the site under Challenges and Issues Today. Since it is unlikely that CIPA, NCIPA, or state filtering legislation will be repealed or changed substantially, living with a filtering system is a fact of life in K 12 schools. This does not mean, however, that school library professionals should accept that students and faculty be blocked from accessing worthwhile online educational resources. The school librarian must develop strategies and seek allies to advocate for use Volume 39, No. 1 September/October

11 Where to Find Help with Specific Local Filtering & Privacy Concerns ALA Office for Intellectual Freedom phone: (800) , ext (OIF office) hours: 8:30 a.m. to 4:30 p.m. Central Time, Monday Friday ALA/AASL membership is not required for consultation or assistance. of the Internet in an educationally sound manner that ensures students and staff access to legally permissible information and the social technology skills vital to living and working in a global society. Beyond filtering, equity issues affect minors access to information online and the use of participative Web 2.0 tools. School librarians have both legal and ethical responsibilities to ensure students with physical, cognitive, and learning disabilities, as well as chronic illnesses and disorders, can access online resources. Services to Persons with Disabilities: An Interpretation of the Library Bill of Rights states: When information in libraries is not presented in formats that are accessible to all users, discriminatory barriers are created.the library should offer different, necessary modes of access to the same content using equipment, electronics, or software. All information resources provided directly or indirectly by the library, regardless of technology, format, or method of delivery, should be readily, equally and equitably accessible to all library users (ALA 2009c). The Digital Divide has not disappeared, and school librarians must advocate with administrators, teachers, and the school board or other governing body to guarantee that students without home access to computers or the Internet can use the school s technology assets with sufficient time to complete academic assignments and projects, as well as address personal information needs such as job seeking, or college and financial aid applications. Economic Barriers to Access to Information: An Interpretation of the Library Bill of Rights, advises librarians: All information resources that are provided directly or indirectly by the library, regardless of technology, format, or methods of delivery, should be readily, equally and equitably accessible to all library users [emphasis added] (ALA 1993). Some school librarians also serve incarcerated minors in juvenile detention facilities or prisons. Youthful offenders have a critical need for information in a digital format. According to the Prisoners Right to Read: An Interpretation of the Library Bill of Rights, the newest of the 20+ interpretations of the Library Bill of Rights and approved by ALA Council in June 2010: Participation in a democratic society requires unfettered access to current social, political, economic, cultural, scientific, and religious information. Information and ideas available outside the prison are essential to prisoners for a successful transition to freedom. Learning to be free requires access to a wide range of knowledge, and suppression of ideas does not prepare the incarcerated of any age for life in a free society. Correctional libraries should provide access to computers and the Internet (ALA 2010). Although state and federal laws will continue to require filtering as a condition of receiving specific types of funding, ensuring students access to information and freedom of expression on the Web remains critical. When the school community works cooperatively, the negative effects of filtering may be lessened, and students will learn Web research skills and interactive communication skills useful throughout their lives. A former school librarian and technolog y coordinator in Wisconsin, Helen R. Adams is currently an online instructor for Mansfield University in Mansfield, Pennsylvania and serves as chair of the AASL Intellectual Freedom Committee and AASL s liaison to the Freedom to Read Foundation Board. She is coauthor of Privacy in the 21st Century: Issues for Public, School, and Academic Libraries (Libraries Unlimited 2005) and author of Ensuring Intellectual Freedom and Access to Information in the School Library Media Program (Libraries Unlimited 2008). 14 Knowledge Quest Intellectual Freedom Online

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13 FEATURE All materials in this journal subject to copyright by the American Library Association Minors First Amendment Rights: CIPA AND SCHOOL LIBRARIES 16 Knowledge Quest Intellectual Freedom Online

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15 Author s disclaimer: This article does not constitute a legal opinion. Readers should consult their own legal counsel for legal advice regarding their particular situation. The United States Supreme Court has long recognized that minors enjoy some degree of First Amendment protection. Students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate (Tinker v. Des Moines Independent Community School District 1969). As one appellate court (American Amusement Machine Association v. Kendrick 2001) posited so aptly, [p]eople are unlikely to become well-functioning, independentminded adults and responsible citizens if they are raised in an intellectual bubble. Recognizing that access to information is fundamentally necessary as a corollary to the right to speak, courts have held that minors First Amendment rights include the right to receive information and extend beyond the classroom. For example, in Board of Education v. Pico (1982), the United States Supreme Court held that a school board s attempt to remove controversial titles such as Slaughterhouse-Five and Soul on Ice from the school library was unconstitutional. The Court stated that the right to receive ideas is a necessary predicate to the recipient s meaningful exercise of his own rights of speech, press, and political freedom (853, 867). The Court emphasized that students too are beneficiaries of this principle (868). Through the years, the Supreme Court has recognized that [s]peech...cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them (Erznoznik v. City of Jacksonville 1975). Recognizing, however, that minors exercise of First Amendment rights must be applied in light of the special characteristics of the school environment (Pico 1982, 868, quoting Tinker 1969, 506), the Court has acknowledged that the rights of minors are not equal to the rights of adults. The Court thus has permitted school boards to restrict speech or access to information for minors in two circumstances. First, school boards may restrict materials if they are motivated to do so because the materials are educationally unsuitable or pervasively vulgar. School boards may not, however, censor materials if the removal is politically motivated and the restriction is based on disagreement with the ideas contained in the material. Second, school boards may restrict materials that are obscene, harmful to minors, or child pornography. Whether material is obscene, harmful to minors, or child pornography generally is defined by state or local law. Definitions do vary from state to state. Moreover, a determination of whether material is obscene or harmful to minors is governed by community standards that may differ from state to state and town to town. Material deemed obscene or harmful to minors by a jury in one town might not necessarily be found to fit the definition of unprotected speech in another town. The jury must determine whether the material would be harmful to older minors, not all minors. For example, material cannot be deemed harmful to minors unless it fits the definition of obscenity for a seventeen-year-old. Material also cannot be deemed harmful to minors if it has any serious literary, artistic, political, or scientific value when evaluated as a whole. Curriculum vs. Voluntary Inquiry Courts have also distinguished between the discretion accorded school boards in the realm of curriculum decisions as opposed to extra-curricular activities. School boards have broad discretion with respect to curriculum decisions (Hazelwood v. Kuhlmeier 1988). For example, in Virgil v. School Board of Columbia County (1989), the court of appeals affirmed a school board s decision to remove selected portions of The Miller s Tale and Lysistrata from a humanities course curriculum, stating that [i]n matters pertaining to the curriculum, educators have been accorded greater control over expression than they may enjoy in other spheres of activity (1517, 1520). In upholding the removal of material, the court emphasized that the disputed materials remained in the school library, which unlike a course curriculum, was a repository for voluntary inquiry (1523, n.8 and 1525). The Internet at School Internet access has posed the greatest challenge for educators and school libraries as they attempt to balance minors First Amendment rights against concerns over the breadth of material that is posted and accessible online. There certainly are websites that would fit the definitions of obscenity, child pornography, 18 Knowledge Quest Intellectual Freedom Online

16 and harmful to minors. There plainly is material on the Web that is educationally unsuitable and pervasively vulgar. At the same time, however, the Internet has become a powerful tool for educators and students in extending their reach for knowledge. The Web offers students a vast array of educational, cultural, and challenging learning experiences. Lawmakers, school boards, and school administrators must be cautious in limiting access to this powerful tool. Statutory restrictions on Internet access such as the Children s Internet Protection Act (CIPA) of 2001 and similar state provisions have limited access to material far beyond the categories the Supreme Court has held can be restricted. Filters restrict access to vast amounts of material that would be deemed educationally suitable for minors and could not be categorized as pervasively vulgar, obscene, harmful to minors, or child pornography. CIPA provides that schools applying for certain funds for Internet access available in accordance with provisions of the Communications Act of 1996 (E-rate discounts) or the Elementary and Secondary Education Act of 1965 (ESEA) may not receive such funds unless the schools administrators certify that they have in place a policy of Internet safety that includes the use of technology protection measures, such as filtering or blocking software, that protect against access to certain visual depictions available on the Web. Specifically, the school district seeking funds must certify that it has filtering or blocking software in place that will block access for minors to visual depictions that are obscene, child pornography, or harmful to minors. The school district must also certify that it has filtering or blocking software in place that will block access for adults to visual depictions that are obscene or child pornography. The technology protection measure must be placed on all computers, including those computers used by staff. The statute, codified at 20 U.S.C. 9134(f)(3) and 47 U.S.C. 254(h)(6)(D), provides that an administrator, supervisor, or other authorized person may disable the filtering software for adults, but only to enable access for bona fide research or other lawful purposes (CIPA 2001). Federal law thus mandates use of a filter only if funds are accepted under these statutes. The CIPA statute does not mandate use of a particular filter. However, no existing filters can precisely block only visual depictions of child pornography, obscenity, and material harmful to minors. Thus, any filter used in a school necessarily will both over-block and under-block. CIPA was challenged in two lawsuits filed in the Eastern District of Pennsylvania. Both lawsuits alleged that application of CIPA in the context of the public library violated the First Amendment. On May 31, 2002, a three-judge panel held unanimously that the statute was unconstitutional. The court s holding was premised on the finding that [b]ecause of the inherent limitations in filtering technology, public libraries can never comply with CIPA without blocking access to a substantial amount of speech that is both constitutionally protected and fails to meet Given that minors have explicit First Amendment rights, it would be prudent for schools and particularly school libraries to have a system in place to unblock sites that do not constitute obscenity, child pornography, or material harmful to minors. Volume 39, No. 1 September/October

17 Statutory restrictions on Internet access such as the Children s Internet Protection Act (CIPA) and similar state provisions have limited access to material far beyond the categories the Supreme Court has held can be restricted. Filters restrict access to vast amounts of material that would be deemed educationally suitable for minors and could not be categorized as obscene, harmful to minors, or child pornography. even the filtering companies own blocking criteria (American Library Association v. United States 2002). The court also concluded that the disabling provision did not cure the unconstitutionality of the statute because requiring a patron to request access to constitutionally protected speech was stigmatizing and significantly burdened the patron s First Amendment rights. In June 2003 the Supreme Court reversed the holding of the district court in a plurality opinion, with no majority opinion agreeing on all aspects of the reasoning in support of the reversal. The reversal was premised on the fact that six of the nine justices of the Supreme Court accepted the Solicitor General s assurance during oral argument that adults could ask that filtering be disabled without specifying any reason for the request. Thus, in the plurality opinion, Chief Justice Rehnquist (joined by Justices O Connor, Scalia, and Thomas) concluded that the statute was not unconstitutional because [t]he Solicitor General confirmed that a librarian can, in response to a request from a patron, unblock the filtering mechanism altogether and further explained that a patron would not have to explain...why he was asking a site to be unblocked for the filtering to be disabled. The Court s plurality opinion contemplated that [w]hen a patron encounters a blocked site, he need only ask a librarian to unblock it or (at least in the case of adults) disable the filter (United States v. American Library Association 2003, 194, 209). The case left open the question of whether denying access to a particular person in a particular case would be unconstitutional. That challenge currently is pending in a case in the state of Washington. 20 Knowledge Quest Intellectual Freedom Online

18 A challenge to the application of filtering software to adults in public libraries is the issue in the case of Bradburn v. North Central Regional Library District, still pending in the federal court. In November 2006 the American Civil Liberties Union of Washington filed suit against the North Central Regional Library District on behalf of three library patrons and the Second Amendment Foundation. The suit alleges that the library violated the plaintiffs First Amendment rights under both the federal and state constitutions by refusing to disable Internet filters at the request of adult patrons. The case was removed from the federal court to the Washington State Supreme Court for an initial determination of whether the library s refusal to disable filters (with no questions asked as to why the adult is requesting unfiltered access) violates the Washington State Constitution (Bradburn v. North Central Regional Library District, ). Although it does not specifically address the issue of minors rights, the Washington case is an important test of the reach of CIPA and the obligations imposed on libraries to disable filters. In May 2010 the Washington Supreme Court held that the Washington State Constitution does not prohibit filtering. The case will now return to the federal district court for a determination of whether the particular library filtering policy in place at North Central Regional Library violates the First Amendment of the United States Constitution. To date, no challenge to the application of CIPA to schools, school libraries, or minors in any library setting has been made. The United States Supreme Court appeared to contemplate, however, that minors could ask for sites to be unblocked if they did not fit within the definitions of unprotected speech, i.e., sites that are obscene, child pornography, or material harmful to minors. Given that minors have explicit First Amendment rights, it would be prudent for schools and particularly school libraries to have a system in place to unblock sites that do not constitute obscenity, child pornography, or material harmful to minors. Although there has been no challenge to date of a school library filtering system, schools must remain cognizant of minors rights to receive information protected by the First Amendment. No filter can block accurately. Even with a filtering system in place, minors will be able to access material that is obscene, child pornography, or harmful to minors. Conversely, minors also will be blocked from accessing important educational and research materials when filters are used. Internet use policies should be drafted to balance these interests. Protecting minors First Amendment rights and fulfilling the educational mission of promoting the greatest access to educational and research materials counsels for a system that allows school librarians and teachers to unblock sites with constitutionally protected material. Works Cited: American Amusement Machine Association v. Kendrick, 244 F.3d 572 (7th Cir. 2001). American Library Association v. United States, 201 F. Supp. 2d 401 (E.D. Pa. 2002), reversed, American Library Association v. United States, 539 U.S. 194 (2003). Board of Education v. Pico, 457 U.S. 853 (1982). Bradburn v. North Central Regional Library District, (E.D. Wash.) (Pending.) (Wash.) (May 2010). Children s Internet Protection Act (CIPA), codified at 20 U.S.C. 9134(f)(3) and 47 U.S.C. 254(h)(6)(D). (April 2001). Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975). Hazelwood v. Kuhlmeier, 484 U.S. 267 (1988). Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). United States v. American Library Association, 539 U.S. 194 (2003). Virgil v. School Board of Columbia County, 862 F.2d 1517 (11th Cir. 1989). Theresa Chmara is an attorney in Washington, DC. She is the general counsel of the Freedom to Read Foundation and a board member of the American Booksellers Foundation for Free Expression. She is the author of Privacy and Confidentiality Issues: A Guide for Libraries and their Lawyers (ALA 2009). Volume 39, No. 1 September/October

19 FEATURE All materials in this journal subject to copyright by the American Library Association Censorship Online: 22 Knowledge Quest Intellectual Freedom Online

20 Karyn Storts-Brinks Volume 39, No. 1 September/October

21 It seems that most school librarians have encountered problems with and railed against CIPA-mandated filters on school computers. My own career has seen a full range of filtering experiences, from no filter at all to an over-filtering situation so egregious that its resolution required an ACLU lawsuit, Franks v. Metropolitan Board of Public Education, against the school district that employs me. The Knox County, Tennessee, school district is vast; it is comprised of fifty elementary schools, fourteen middle schools, and thirteen high schools, as well as other types of schools and centers. As of May 2009, it served 56,516 students of diverse racial and socioeconomic backgrounds. Despite these statistics, Knoxville and its surrounding areas still feel like a quiet hometown community, but the filtering situation that I challenged garnered national media attention before it was all over. Discovery The journey toward resolution began many months before involving civil rights attorneys. In August 2007 I first became aware of websites that seemed inappropriately and unnecessarily blocked by our filtering system, Education Networks of America (ENA). While helping students in the Fulton High School Library with persuasive essays on contemporary topics, I was surprised by our inability to access the sites of both the Human Rights Campaign (HRC) < org> and the Gay Lesbian Straight Education Network (GLSEN) <www. glsen.org>. Of note is the fact that GLSEN is an organization that is fully endorsed by the National Education Association (NEA). Among the tools NEA provides on its website is a link to GLSEN and an online guide Strengthening the Learning Environment: A School Employee's Guide to Gay, Lesbian, Bisexual, and Transgender Issues that cites GLSEN's School Climate Survey, includes GLSEN among its list of "Additional Resources," and features this message from former NEA President Reg Weaver: "We're pleased that these schools are finally living up to their legal obligation to allow the free and open exchange of ideas and information. Schools that censor educational information out of some misguided assumption that anything about LGBT people is automatically sexual or inappropriate are doing a disservice to their students." - ACLU Legal Counsel Tricia Herzfeld My concern over these blocked websites was underscored by my role as the faculty sponsor of Fulton High s Gay Straight Alliance (GSA). GLSEN's tools and research are unmatched when it comes to providing information and rationale that supports the existence of GSAs in schools. From the powerful statistics gleaned from the National School Climate Survey to the Jump-Start Guide for Gay Straight Alliances, this organization's website offers a wealth of information for students, 24 Knowledge Quest Intellectual Freedom Online