Library Internet Filtering Issues to be Decided by Voters In Michigan

(December 16, 1999) Filtering proponents in Michigan are taking advantage of the state's initiative and referendum laws to put the issue directly to the voters. They seek to pass ordinances that require porn filtering software on all public library computers which can be used by patrons to access the Internet, save one, set aside for adults.

Michigan law provides for local initiatives and referenda. If a petition in support of a proposed ordinance is signed by at least ten percent of the number of people who voted in the last election, then the local city council or commission must either adopt the ordinance, or put it on the ballot in the next election.

Moreover, a statute passed by the Michigan legislature, and signed by its Governor in June, gives local jurisdictions the authority to require a wide range of Internet filtering alternatives, including filtering on all but one computer set aside for adults.

On December 6 petitioners in Hudsonville, Michigan, forced a recalcitrant city commission to adopt just such an ordinance. On Wednesday, December 15, voters in nearby Holland, Michigan, forced its city council to put the ordinance on the February 22 ballot.

The organization behind the effort is the American Family Association, a non-profit group which promotes traditional family values, focusing primarily on the influence of television and other media, including pornography. It was founded in 1977 by the Rev. Don Wildmon, an ordained minister of the United Methodist Church. The AFA is not affiliated with any church or denomination.

Many local library officials and city officials are aghast. They have attacked the proposed filtering ordinance, the AFA, and the challenge to their authority.

For example, the Gary Byker Memorial Library in Hudsonville published a Fact Sheet after the Hudsonville City Commission voted to adopt the ordinance. It stated that "The American Family Association gained local support for its efforts by engaging in very questionable tactics. They aroused public emotion with sensationalism, innuendoes and half-truths."

The Hudsonville Fact Sheet adds that "We believe the filtering process required is inferior and unconstitutional in that it violates First Amendment Rights (the Bill of Rights) assured under the U.S. Constitution."

"We will not lower our standards to those practiced by the American Family Association. We deplore its actions and its tactics and hope the community will recognize how it has harmed this community."

Melissa Huisman, the Library Director, spoke with Tech Law Journal. She is disturbed by the initiative and referendum process. She points out that there are only about 7,000 residents of Hudsonville. Also, since all of the candidates on the ballot ran unopposed in the last election, the turnout was low -- 200 voters. This means that only 20 signatures were needed.

Gary Glenn, the Michigan President of the AFA, also spoke with Tech Law Journal. He sees the process as direct democracy; officials are not above the will of the voters. He points out that while only 20 signatures were needed, they obtained over 100, in one day. Similarly, in the larger community of Holland, they needed 1,000 signatures, and easily obtained 2,500.

To Gary Glenn, this is a simple issue: he wants to protect children from the harmful consequences of pornography in public libraries. He adds that since the ordinance provides for an unfiltered computer for adults, this satisfies the requirements of the Constitution, and the opinion of U.S. District Court Judge Leonie Brinkema in Mainstream Loudoun v. Loudoun County Library.

While anti-filtering sentiment is prevalent in the federal judiciary, and big city libraries, filtering out pornography in public schools and libraries is a motherhood and apple pie issue with voters.

Huisman says that the Hudsonville City Commission members believed that had the matter been submitted for a public vote, the pro-filtering position would have prevailed. So, she says that the Commission choose the "lesser of two evils" and passed the AFA ordinance.

Gary Glenn concurs that the pro-filtering camp has the votes in both Hudsonville and Holland to prevail.

Hudsonville is a small suburb of Grand Rapids. Holland is a town on the Lake Michigan shore to the west of Grand Rapids. Rep. Vernon Ehlers (R-MI) represents Grand Rapids today. Gerald Ford was once its Congressman. Rep. Pete Hoekstra (R-MI) respresents Holland. Both towns are in staunchly conservative western Michigan Dutch country. This is likely to make the vote all the more pro-filtering.

But there is more working in the AFA's favor. The Holland referendum vote will be held on February 22, which is also the date of the Republican presidential primary vote.

Sen. John McCain (R-AZ) (Senate web site | campaign web site), a leading presidential candidate, is also the lead sponsor of legislation in the Senate to require porn filtering in schools and libraries receiving e-rate subsidies.

Gary Bauer, another candidate, is the former head of the Family Research Counsel, a group which actively supported filtering in Loudoun County, Virginia. Moreover, Bauer has campaign production offices in Holland.

The Bauer for President 2000 web site contains the following policy statement: "Pornography is an attack on women and children that leads to harmful and violent behavior. Our nation made great progress in fighting the illegal obscenity business under the Reagan-Bush Administration; but under the Clinton Administration, not one new obscenity case has been opened. As a result, the pornography industry is back, especially on the Internet ..."

Republicans, and particularly conservative pro-filtering Republicans, will turn out to vote for their favorite Presidential candidate. Then they will turn around and vote for the filtering ordinance.

But there is yet another factor that may drive pro-filtering voters to the polls. Last month, in the town of Muskegon, just to the north of Holland, a 10 year old girl was raped in a public library with unfiltered Internet access. No arrest was made, so the connection between unfiltered access and the rape is unproven.

Gary Glenn of the AFA insists that it is just a coincidence that the first vote will come in Holland. It just happens that the local activists were ready to move first in Holland, and nearby Hudsonville.

Glenn says that the main goal of the AFA is to place its porn filtering ordinance on the August and November 2000 ballots in communities all over Michigan.

No one is predicting that the February 22 referendum will reject the filtering ordinance. The hopes of the opponents lie solely in a court challenge.

Helissa Huisman says that three "patrons intimated that they were real angry about the petition," and said they would challenge the AFA plan in court. She added that one is married to a lawyer, and the couple had talked to the ACLU. However, Huisman adds that no anti-filtering groups, such as People for the American Way, the American Civil Liberties Union, or the American Library Association, has threatened litigation.

Nevertheless, Huisman believes that there is a credible threat of litigation. On the other hand, the AFA anticipates litigation, and has offered to represent for free any Michigan jurisdiction which adopts its proposed ordinance if it is challenged in court.

There is only one case which has addressed the constitutionality of filtering policies of public libraries. Moreover, in this, the Loudoun case, the facts were different. In Loudoun all Internet access was filtered -- for both children and adults. In contrast, the Michigan statute requires that at least one unfiltered computer be available for adults; the AFA backed ordinance follows the Michigan statute by mandating one unfiltered computer.

Judge Brinkema wrote in her Loudoun opinion that

"... restricting what adults may read to a level appropriate for minors is a violation of the free speech guaranteed by the First Amendment ..." (at page 36)

She added that a

".. Policy that ... restricts the access of adult patrons to protected material just because the material is unfit for minors ... offends the guarantee of free speech in the First Amendment and is, therefore, unconstitutional." (at page 45)

While she cited the Library's policy of filtering of adult access as a grounds for opining its unconstitutionality, she went on say that her opinion did not address whether a policy to filter only children's access would be constitutional. She wrote:

"Third, filtering software could be installed on only some Internet terminals and minors could be limited to using those terminals. Alternately, the library could install filtering software that could be turned off when an adult is using the terminal. While we find that all of these alternatives are less restrictive than the Policy, we do not find that any of them would necessarily be constitutional if implemented. That question is not before us." (at page 35)

In addition, the Loudoun case was never tested on appeal. The Library's attorney advised the Library that Brinkema would be overturned on appeal. However, the Library decided to drop the matter.

It may be pertinent that Judge Brinkema decided a similar case which was unanimously overturned earlier this year by a three judge panel of the U.S. Court of Appeals for the 4th Circuit. In that case Brinkema held unconstitutional a Virginia state statute that prohibits state employees from accessing sexually explicit material on computers owned or leased by the Commonwealth, without permission.

"Except for the Loudoun decision, we have nothing to go by," said Huisman. "We really need some case law or something to help us."

The Hudsonville City Commission not only voted to adopt the pro-filtering ordinance. It then decided to terminate Internet access for library patrons. Huisman cited the possibility of litigation as a reason.

Gary Glenn sees the decision to cut off Internet access differently. "I think that was just juvenile gamesmanship."

He added that it was "an act of spite, they they were compelled by the citizens to do something that they did not want to do."

He said that the Commission wanted "to punish the citizens. I don't think that will last all that long."

Similarly, after the Holland City Council voted to put the proposed ordinance on the February 22, 2000 ballot, several members stated that even if adopted by the voters, they would oppose enforcement of the ordinance, citing legal and fiscal arguments.