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Julie Hilden

Can a Public School's Library Block Pro-Gay Websites? An ACLU Lawsuit Says No


Friday, June 5, 2009

Late last month, the American Civil Liberties Union (ACLU) sued to challenge two Tennessee public school districts' policy of using certain Internet filtering software in their libraries. The company selling the software is ENA Services LLC ("ENA"). The "LGBT" (lesbian, gay, bisexual and transgender) filter in ENA's software -- if activated by the client via a check-off, as was the case in Tennessee – blocks students' access to pro-LGBT sites, and only pro-LGBT sites, not anti-LGBT sites.

As the basis for the suit, the ACLU invoked both a federal statute enabling the direct federal-court enforcement of constitutional rights – here, First Amendment rights – and the Equal Access Act, which grants public high school student groups a right to equal access to school resources.

The Equal Access Act was initially backed by groups seeking to give public-school students the right to convene Bible study groups on campus during lunch breaks and through on-campus afterschool clubs. Now, the Act is also being invoked by student LGBT and Gay-Straight Alliance clubs that face hostility from public-school administrations to their own wishes to meet on-campus.

The ACLU's suit was brought on behalf of a set of teenage students, with their parents serving as "next friends," and on behalf of a school librarian. In light of the fact that only a little more than half of Tennessee households have home Internet access, the ACLU has pointed out that school-library Internet access is absolutely vital for many Tennessee students – for it is the only Internet access they have.

Earlier this month, the two Tennessee school districts at issue capitulated, and unblocked the pro-LGBT sites. Moreover, the change was made statewide across all Tennessee districts, and throughout Indiana, where the same ENA filtering software is used. However, the lawsuit reportedly will not be withdrawn until the ACLU is satisfied that the Tennessee districts' change is permanent, and thus that a court injunction is unnecessary.

This was an important win for the ACLU, and for LGBT teenagers and their parents. But, as I will explain, this was also a relatively easy case, because of the nature of the filters involved.

Viewpoint Discrimination Versus Subject-Matter Censorship

First, this case was relatively easy because it involved clear viewpoint censorship, not simply censorship of a particular subject matter. Pro-LGBT viewpoints were blocked; anti-LGBT viewpoints were completely accessible.

In contrast, a hypothetical filtering system that blocked both points of view -- on the rationale that such topics purportedly were not appropriate for high school students -- might have led to a more protracted court battle.

How A Separate Filter Neatly Mooted Any Issue Regarding Sexual Images

This case was also an easy one because, according to ENA's filtering scheme, sexual content was separately addressed by a different "Pornography" filter, the application of which the ACLU did not challenge. The existence of these two separate filters – "LGBT" and "Pornography" -- allowed the ACLU to narrowly focus the case on "non-sexual pro-LGBT content" alone.

This narrow focus served, in turn, to keep the ACLU's case clear of the complex, and often arbitrary, set of First Amendment rules that have been devised to police sexual speech (including – and especially – sexual images).

This focus also ensured that the leading pro-LGBT sites at issue in the lawsuit were mainstream political advocacy sites -- rather than edgier or more explicit sites that were not expressly political. That was an advantage from a litigation perspective, because political advocacy is at the very heart of the First Amendment and, accordingly, is stringently protected by the Supreme Court.

The existence of the separate "Pornography" filter also mooted out potential subtleties and complexities that might have otherwise made the lawsuit more difficult to win. A federal law – the Children's Internet Protection Act (CIPA) -- requires public schools to block "visual depictions" that constitute obscenity or child pornography, or that are "harmful to minors," a phrase the statute separately defines. (The "harmful to minors" standard is related to case law allowing the government to use a broader definition of what is "obscene as to minors" when minors are the audience.) But for the purposes of this litigation, CIPA was not relevant. While CIPA might have reached some of the visual material blocked by the "Pornography" filter, it surely did not reach the primarily written material on the mainstream LGBT advocacy websites that ENA's "LGBT" filter had blocked.

According to the ACLU's complaint, ENA tried, late in the day, to claim that its LGBT category actually did encompass "adult content" after all. But when the categories were defined by defendants' counsel after the complaint was filed, the line drawn was different, and quite clear: The "LGBT" category did not cover sexual content.

Should Public Schools Be Using the Services of a Company that Offers a Discriminatory Filter?

Finally, at the same time that this was a somewhat straightforward case, it was also, in a way, a very disturbing one: Imagine, by comparison, if public schools were to patronize a Website filtering company that offered an "AFRAM" checkoff, by which schools could block only those websites taking a pro-African-American viewpoint, while at the same time leaving anti-African-American websites unblocked.

The school districts may have changed their checkoffs, but they apparently still do business with a company – ENA Services LLC ("ENA") -- that public school offers districts the service of cutting off access to pro-LGBT content if they so choose.

School districts should boycott ENA until it stops offering this discriminatory service. Like a discriminatory "AFRAM" checkoff, a discriminatory "LGBT" checkoff has no place in a software product purchased by a government entity.

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden, a FindLaw columnist, is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes free MP3 and text downloads of the novel's first chapter.

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