Intellectual Property Law

Public schools in Tennessee are filtering access to online websites discussing lesbian, gay, bisexual and transgender issues, but are not blocking sites advocating "reparative" therapy to change their lifestyle.

Nobody is disputing the existence of the filters in the Knox County Schools and Metro Nashville Public Schools. But the schools are blaming their internet and filtering service for what the American Civil Liberties Union is decrying as viewpoint discrimination in violation of the First Amendment. The internet service, Education Networks of America, says the schools choose which websites to block.

The brouhaha comes amid the backdrop of gay marriage picking up steam across the United States, with the Iowa Supreme Court and Vermont lawmakers just approving of it, while the California Supreme Court is expected to rule any day now on whether to legalize it in that state.

Jason Callen, an ENA attorney, said the company does not have a say in what is filtered.

"The decisions on whether to block certain websites are made solely by the school districts. ENA does not participate in these decisions in any way and is instead simply told which websites to block," ENA attorney Jason Callen said (.pdf) in response to a state Public Records Act request by the ACLU.

Olivia H. Brown, a spokeswoman for the Metropolitan Nashville Public Schools, said it was up to ENA to determine how to abide by the Children's Internet Protection Act.

"The vendor is responsible for the interpretation of the CIPA requirements and ensuring compliance.  Under the contract MNPS can request additional sites to be reviewed for blocking or unblocking," Brown wrote ACLU attorney Tricia Herzfeld in this e-mail:

The ACLU, in a tersely worded letter, told the schools Wednesday it would sue them if the sites don't come back online. The blocked sites include the Human Rights Campaign, Marriage Equality USA, the Gay Lesbian Straight Education Network, the Lesbian Alliance Against Defamation and Dignity USA.

"The filtering scheme engages in impermissible viewpoint discrimination by blocking sites that express acceptance and tolerance towards LGBT individuals but permitting sites that condemn homosexuality and sites that urge LGBT persons to change their sexual orientation or gender identity through so-called 'reparation therapy,'" the letter said.

Those sites include National Association for Research and Therapy of Homosexuality, People Can Change, The Americans For Truth Against Homosexuality and the Traditional Values Coalition.

"When I found out about this web-filtering software, I wasn't looking for anything sexual or inappropriate, I was looking for information about scholarships for LGBT students, and I couldn't get to it because of this software," said Andrew Emitt, a 17-year-old Central High senior in Knoxville.

Russ Oaks, a spokesman for the Knox County Schools, which has some 55,000 students, declined comment, other than to say the ACLU's demands were forwarded to the district's lawyers. Brown did not return telephone messages.