INTERNET LAW - Constitutionality of Certain Internet-Filter Systems

Public and private organizations and schools use Internet-filter systems to block certain websites that contain harmful and obscene materials, among others.  The use of internet-filter systems is legitimate and even necessary to comply with some legislation such as the CIPA (the Children's Internet Protection Act).  These internet-filter systems, however, may also block websites that bring positive, but controversial, information. For instance, some filters may block websites about gays and lesbians that have decent and positive information about this group; is this blocking constitutional?  

A district court in Missouri found that the use of Internet-filter systems that blocked certain gays and lesbians websites violated these groups" freedom of expression under the First Amendment to the United States Constitution. In Parents, Families, and Friends of Lesbians and Gays, Inc, et al., v. Camdenton R-III School, et al., Case No. 2:11-cv-04212 (hereafter PFLAG v. Camdenton), a district court in Missouri had to decide on a motion for preliminary injunction filed by plaintiffs against Camdenton, a Missouri school. 

Camdenton used an internet-filter system based on a free product called URL Blacklist.  The URL Blacklist compiles internet websites arranged by subject matter, and then certain websites may be blocked depending on their subject matter.  For instance, websites indexed under the word "pornography,” “sexuality,” etc. will be blocked by most schools’ filters, including Camdenton’s.  Plaintiffs PFLAG filed a motion for preliminary injunction under Federal Rule of Civil Procedure 65(a).  PFLAG claimed that Camdenton violated PFLAG’s freedom of expression under the First Amendment by the use of this Internet-filter system that “blocks websites expressing a positive viewpoint toward lesbian, gay, bisexual and transgender individuals” (LGBT).   Apparently, the URL Blacklist indexed these groups’ websites under the word “sexuality,” although this word had a sub-categories such as “law,” “history,” “politics,” media,” etc.  During court proceedings, it was also found that URL Blacklist subject-matter-groups were taken from another website called DMOZ.org.  DMOZ.org organizes websites by subject matter, but not for the purpose of blacklisting websites. URL Blacklist blocked LGBT websites, even those with positive material about these groups’ issues. 

The district court granted preliminary injunction for the plaintiff.  First, the court found that Camdenton’s continuous use of the URL Blacklist intentionally discriminates based on viewpoint.  It was clear in the record that Camdenton was given notice by ACLU that URL Blacklist had discriminatory effects. ACLU informed Camdenton that URL Blacklist filter blocked websites that express positive views toward LGBT individuals and that are not prohibited by CIPA. Second, the court found that Camdenton’s internet-filter system “stigmatizes, or at least burdens, Websites expressing a positive view toward LGBT individuals.”  It seemed that although students and users could request the school to unblock those websites, that request was not perceived as completely anonymous. Thus, some students were deterred from using the unblocking process.  Based on the above, the court found that PFLAG were likely to prevail on the merits of its claim. Also, the court found that PFLAG had standing to bring this suit as a group because the state, by the school, violates the First Amendment right of speakers when “it denies them access to even a non-public forum if the states does so based on the speakers’ viewpoint.”   On the merits of the PFLAG’s claim, the court held that “because the court has found that Camdenton’s internet filter system discriminates based on viewpoint, that system is invalid unless Camdenton can demonstrate that is narrowly designed to serve a compelling state interest.” Lastly, the court held that enjoining this action is in the public interest because it is “always in the public interest to protect constitutional rights.”

Therefore, the court found that “PFLAG has established the requirements necessary for a preliminary injunction on its claim under the First Amendment of the U.S. Constitution. Accordingly, it is hereby ORDERED that Plaintiffs' Motion for Preliminary Injunction is GRANTED. The Court orders Camdenton to discontinue, within 30 days, its internet-filter system as currently configured, and any new system selected must not discriminate against websites expressing a positive viewpoint toward LGBT individuals.”

This Missouri case concluded that internet-filter systems that discriminate based on viewpoint may violate the First Amendment to the United States Constitution.  Internet-filter systems must be configured carefully to avoid violation of the Constitutional right of freedom of expression.      

Martha L. Arias; Attorney at Law; IBLS Editor

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