In 2008, Andrew Emitt searched for Lesbian, Gay, Bisexual and Transgender (LGBT) scholarship opportunities on a computer at his high school in Knoxville, Tenn., only to discover that the websites he was looking for were blocked by his school’s filtering software. In 2009, lawyers from the American Civil Liberties Union filed Franks v. Metropolitan Board of Public Education, contending that two Tennessee public school districts were unconstitutionally blocking students’ access to LGBT websites whose content is protected by the First Amendment.
According to the ACLU, public school students all over the country are denied access to educational and LGBT-friendly websites for groups such as the Gay Straight Alliance Network and the Gay, Lesbian, Straight Education Network. Attempts to gain access to these sites sometimes even yield stop sign graphics and warnings that administrators are watching. In response, the ACLU LGBT Project, in conjunction with the Yale Law School LGBT Litigation Clinic, has launched a campaign called “Don’t Filter Me,” which, according to a Feb. 15 ACLU press release, will assess web censorship in public schools.
Don’t Filter Me urges students to check if their schools are blocking LGBT websites. The four-step-intake form, which can be found on the ACLU website, first asks them to try visiting five LGBT websites, including the “It Gets Better Project” and the “Gay-Straight Alliance Network.” Next, it tells students to try three anti-gay websites, such as “People Can Change.” The survey instructs students to take screenshots of the blocked websites, then asks them to fill out information about themselves and their schools. Once the information has been collected, the ACLU lawyers, with the help of Yale Law School students, send a letter of demand to the school district explaining why what it’s doing is unconstitutional. If the school district refuses to comply, the team explores further legal action.
Many schools use filtering software to block certain websites, and, as the ACLU discovered, some of the software programs come with a filter labeled “LGBT.” According to Joshua Block, YLS ’05, a staff attorney at the ACLU LGBT Project working on Don’t Filter Me, this filter is “designed specifically to filter out websites that are related to LGBT issues, that don’t otherwise fall under the separate category for adult or sexually explicit content. They’re being filtered out solely because of their perceived pro-LGBT content.”
In addition to blocking access to LGBT-friendly websites, the schools still allow access to “anti-gay sites,” which, according to the ACLU press release, include “websites that urge LGBT persons to change their sexual orientation or gender identity through so-called ‘reparative therapy’ or ‘ex-gay’ ministries.” The lawyers argue that this is illegal viewpoint discrimination. According to Steven Shapiro, Legal Director of the ACLU, “One of the cardinal principles of the First Amendment is that the government may not engage in viewpoint discrimination, which simply means that the government may not penalize or censor speech because it disagrees with the speaker’s point of view.” In this case, he says, “The censorship of LGBT websites is based on disagreement with their message. That is not a permissible basis for censorship under the First Amendment.”
The first goal of Don’t Filter Me is to raise the public profile of this issue. “This is something that is occurring in school districts across the country,” says Block, “and not everyone knows that it happens, or that it’s unconstitutional.” Project Supervisor Alexia Koritz, YLS ’12, says Don’t Filter Me is “just as much about public education and raising awareness as it is going after individual schools.” She acknowledges that some schools might simply hope no one notices, but adds that, in most cases, it is likely that schools are using the LGBT filter without understanding that it is illegal.
“We’ve known that this is a problem at a lot of schools,” says Block, “and we’ve gotten anecdotal reports from schools around the country.” Before launching Don’t Filter Me, he explains, the ACLU had written letters to individual school districts, but was only able to address it in a “piecemeal fashion.” Although the group would have liked to take a comprehensive approach to the issue, it did not have the resources to do so.
Enter Koritz and Yale Law School’s LGBT Litigation Clinic. Co-president of OutLaws, the law school’s LGBT student organization, Koritz interned at the ACLU LGBT Project last semester. While the Clinic was looking for projects for the spring semester, Koritz was helping to draft a letter for students to give to school officials to explain the unconstitutionality of blocking LGBT websites on school browsers. Koritz recognized that the ACLU wanted to address the issue on a broader scale, but said that, before now, it “simply didn’t have the capacity to investigate all the potential cases and go after individual school districts.” Koritz saw the project as a “perfect fit” for the Clinic.
David Lamb, YLS ’13, is one of three students, in addition to Koritz, working on Don’t Filter Me. In his view, the most important thing the law students contribute to organizations like the ACLU is free labor. The relationship between the Clinic and the ACLU is mutually beneficial, according to Lamb: “We get to work on this amazing project and they get to delegate some of their work to people that they have reason to believe are passionate about the project and will do a good job.”
On this particular project, Lamb says, “The law students’ big role involves reaching out to the survey responders and acting as a liaison between them and the ACLU lawyers for the first steps of the project.” The Yale students make it possible, Block explains, for Don’t Filter Me to “reach a whole bunch of students at once and try to address this issue on a national level… They are the first line of day-to-day contact with the high school students.” The Yale students also help to draft demand letters and freedom of information requests and process the information from those requests. Projects like this one, Block says, take “a lot of manpower.”
The campaign is still in its early phases, but those working on it seem to agree it is going well thus far. Although he could not provide an exact figure, Block reported that they have already received intake forms alerting them to dozens of schools across the country that block LGBT websites. Lamb foresees the biggest obstacle will be finding students who are willing to go further than just fill out the intake form. “A bunch of these students,” he says, “are facing pressure from both their administration and their parents. So filling out a survey online is one thing, but being willing to actually speak with ACLU representatives and maybe even be represented could be pretty scary.”
The issues addressed by the Don’t Filter Me campaign seem, legally speaking, fairly straightforward. Taylor Asen, YLS ’12, who is co-student director of the LGBT Litigation Clinic, calls these cases “clear-cut examples of what the First Amendment is about.” For anyone who sees a political agenda behind the project, he or she should note the ACLU’s long history of defending, as Shapiro says, “the free speech rights of people across the political spectrum. He adds, “Free speech rights are indivisible,” and the ACLU is “unwilling to grant the government the power to decide what speech is worth expressing.”