Public Internet Access and the Establishment Clause

In a lawsuit filed yesterday, a resident of Salem, Missouri, claims that a public library’s decision to bar her Internet access to “occult” web sites, as well as those that impart “criminal skills,” violates the Freedom of Speech and the Establishment Clause.  The ACLU is spearheading the law suit (h/t Religion Clause blog). 

Setting aside the Free Speech Clause, and as respects the Establishment Clause claim alone, the allegations are that the library’s screening policies block access to information about minority religions, and specifically “Native American spirituality and related spirituality” including the Wiccan Church, Druidism, Haitian Voodoo, and Neo-Paganism.  These policies have no secular purpose, have the principal effect of promoting some religions over others, and endorse “particular faiths and viewpoints,” according to the complaint.  This language is drawn from Lemon and the endorsement test decisions. 

I am having a difficult time seeing how, even if one agrees that these tests ought to be the standard, these facts make out an Establishment Clause violation.  There might be all sorts of reasons that websites about various religions are blocked by a public library: the overinclusiveness of the screening mechanism, the dangerousness of the content of the site, the links on a particular site (which themselves may go to dangerous content), and the untrustworthiness of the site (it may have viruses).  There are many other possibilities.  And it does not appear that web sites about other religious minorities have been blocked.  Is the claim that by blocking access, the library is endorsing Sikhism, Zoroastrianism, Wahhabism?  That can’t be right.  But if the claim is that the library is endorsing Christianity by blocking access, then how does the plaintiff account for the access that is granted to other minority religions?  And as for secular purpose, protecting the public from dangerous material on the Internet seems like it might fit the bill.  Consider the example of Satanism: it would be permissible for a library to block access to Satanic sites not because it was disfavoring Satanism in particular, but because of the dangerousness of Satanic practice.  Of course, the defendant will need to show that public safety or some similar secular reason grounds its Internet access decisions here.  

Note that saying that the policy does not seem to violate the Establishment Clause is perfectly compatible with the view that it is poorly conceived, closed-minded, obtuse, mindlessly bureaucratic, or even problematic under the Speech Clause.  It may be all of those things, of course, too.

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