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Computer underground Digest Tue Apr 14, 1998 Volume 10 : Issue 23
ISSN 1004-042X
Editor: Jim Thomas (cudigest@sun.soci.niu.edu)
News Editor: Gordon Meyer (gmeyer@sun.soci.niu.edu)
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Field Agent Extraordinaire: David Smith
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #10.23 (Tue, Apr 14, 1998)
File 1--Summary of Loudon County decision coverage
File 2--Text of Loudon County Decision
File 3--Cu Digest Header Info (unchanged since 7 April, 1998)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION ApPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
---------------------------------------------------------------------
Date: Fri, 10 Apr 1998 02:01:44 -0500
From: David Smith <david_smith@unforgettable.com>
Subject: File 1--Summary of Loudon County decision coverage
On Tuesday April 8th, Judge Brinkema released her first ruling on the
lawsuit against Loudon County for their filtering policy. The actual trial
has not been scheduled but will happen later this summer.
Background : Loudon County has a policy only slightly more restrictive than
the Austin Public Library and has been sued by the People for the American
Way and Mainstream Loudon (on behalf of library patrons seeking access to
information) and the American Civil Liberties Union (on behalf of website
owners who wish to provide information to library patrons).
I've appended links to media coverage, statements, etc. that I could find.
Unofficial text of the decision
http://www.techlawjournal.com/courts/loudon/80407mem.htm
COVERAGE & COMMENTARY
* ACLU Judge Sets Highest Legal Hurdle For Using Blocking Software in
Libraries http://www.aclu.org/news/n040798a.html
This is a summary of the NY Times article at
http://www.nytimes.com/library/tech/98/04/cyber/articles/09library.html)
* Infobeat "U.S. judge allows challenge to library Internet filtering"
http://www.infobeat.com/stories/cgi/story.cgi?id=2553663839-bc4
* News.com "Filtering lawsuit going forward"
http://www.news.com/News/Item/0,4,20920,00.html
* People for the American Way "Federal Judge Strikes Effort to Stop Lawsuit
Challenging Unconstitutional Internet Policy"
http://www.pfaw.org/press/loudoun2.htm
* Tech Law Journal "Judge Denies Motion to Dismiss Loudoun Blocking Software
Case"
http://www.techlawjournal.com/censor/80408.htm
* Washington Post, "Judge's Internet Ruling Seen As A Watershed"
http://www.washingtonpost.com/wp-srv/WPlate/1998-04/09/041l-040998-idx.html
* Wired News "Judge OKs Library Nannyware Suit"
http://www.wired.com/news/news/politics/story/11556.html
------------------------------
Date: Wed, 8 Apr 1998 22:35:07 -0500
From: jthomas3@SUN.SOCI.NIU.EDU(Jim Thomas)
Subject: File 2--Text of Loudon County Decision
((MODERATORS' NOTE: The following transcript is from a recent
in the continuing battle between libraries, censorship, and
the Internet.
Source: http://www.techlawjournal.com/courts/loudon/80407mem.htm
techlawjournal.com
Note: this document was creating by scanning and converting to html a
poor quality photocopy of the Court's hard copy original. There are
probably errors in this version.
_________________________________________________________________
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division MAINSTREAM LOUDOUN, et al.,
Plaintiffs,
v.
BOARD OF TRUSTEES OF THE
LOUDOUN COUNTY LIBRARY, et al.,
Defendants. )
)
)
)
)
)
)
) Civil Action No. 97-2049-A
)
)
MEMORANDUM OPINION AND ORDER
Before the Court are defendants' Motion to Dismiss the Individual
Defendants and Motion to Dismiss for Failure to State a Claim or, in
the Alternative, for Summary Judgment, in a case of first impression,
involving the applicability of the First Amendment's free speech
clause to public libraries, content-based restrictions on Internet
access.
I. Background
The plaintiffs in this case are an association, Mainstream Loudoun,
and ten individual plaintiffs, all of whom are both members of
Mainstream Loudoun and adult patrons of Loudoun County public
libraries. Defendants are the Board of Trustees of the Loudoun County
Public Library, five individual Board members, and Douglas Henderson,
Loudoun County's Director of Library Services. (start page 2) The
Loudoun County public library system has six branches and provides
patrons with access to the Internet and the World Wide Web. Under
state law, the "management and control" of this library system is
vested in a Board of Trustees (the "Library Board"). See Va. Code Ann.
'42.1-35. Library Board members are appointed by County officials and
are not elected. See id. In addition to their management and control
duties, Virginia Code '42.1-35 directs the Library Board to "adopt
such bylaws, rules and regulations for their own guidance and for the
government of the free public library system as may be expedient."
On October 20, 1997, the Library Board voted to adopt a "Policy on
Internet Sexual Harassment" (the "Policy"), which requires that
"[s]ite-blocking software ... be installed on all [library] computers"
so as to: "a. block child pornography and obscene material (hard core
pornography)"; and "b. block material deemed Harmful to Juveniles
under applicable Virginia statutes and legal precedents (soft core
pornography)." To implement the Policy, the Library Board chose
"X-Stop," a commercial software product intended to limit access to
sites deemed to violate the Policy.
Plaintiffs allege that the Policy impermissibly blocks their access to
protected speech such as the Quaker Home Page, the Zero (start page 3)
Population Growth website, and the site for the American Association
of University Women-Maryland. Complaint 6696-105. They also claim that
there are no clear criteria for blocking decisions and that defendants
maintain an unblocking policy that unconstitutionally chills
plaintiffs, receipt of constitutionally protected materials. Complaint
6692, 95, 127-129.
Based on the above allegations, plaintiffs bring this action under 42
U.S.C. '1983 against the Library Board and against five individual
Library Board members in both their personal and official capacities,
and Director of Library Services Douglas Henderson in his official
capacity. Plaintiffs allege that the Policy imposes an
unconstitutional restriction on their right to access protected speech
on the Internet, and seek declaratory and injunctive relief, as well
as costs and attorneys' fees pursuant to 42 U.S.C. '1988. (FOOTNOTE 1)
II. Immunity Issues
In their Motion to Dismiss the Individual Defendants, the (start page
4) individual Library Board members (the "individual defendants")
argue that they are entitled to absolute and qualified immunity and
that suing them individually is redundant given plaintiffs, action
against the Board itself.
A. Legislative Immunity
The individual defendants argue that they are entitled to absolute
immunity for their decision to adopt the Policy. As defendants point
out, "[i]t is well established that federal, state, and regional
legislators are entitled to absolute immunity from civil liability for
their legislative activities." Bogan v.Scott-Harris, No. 96-1569, 1998
WL 85313, at *2 (S. Ct. Mar. 3, 1998); see Lake Country Estates v.
Tahoe Regional Planning Auth., 440 U.S. 391, 404 (1979). Legislative
immunity bars not only actions for damages but also 91983 actions for
declaratory and injunctive relief. See Supreme Ct. of Va. v. Consumers
Union, 446 U.S. 719, 732 (1980). Such immunity applies both to the
legislative body itself and to its individual members. See id. at
733-34. Legislative immunity is premised on the notion that "a private
civil action, whether for an injunction or damages, creates a
distraction and forces (legislators) to divert their time, energy, and
attention from their legislative tasks to defend the litigation."
Eastland v. United States Serviceman's (start page 5) Fund, 421 U.S.
491, 503 (1975). The Supreme Court has also recognized that the
threat of civil liability robs legislators of the courage necessary to
legislate for the public good. See Tenney v. Brandhove, 341 U.S. 367,
377 (1951); see also Lake Country, 391 U.S. at 405.
This term, in Bogan, the Supreme Court explicitly extended absolute
immunity to local government officials, finding that such officials
"are likewise absolutely immune from suit under '1983 for their
legislative activities." See Bogan, 1998 WL 85313, at *4; see also
Bruce v. Riddle, 631 F.3d 272 (4th Cir. 1980) (finding legislative
immunity for local legislators). Court held that city council members
acted in a legislative capacity when they voted to adopt an ordinance
eliminating the respondent's department, and were therefore entitled
to absolute immunity. See id.
Plaintiffs argue that Library Board members should not be entitled to
legislative immunity because they are appointed rather than elected,
and as such lack a direct electoral check on their actions. Plaintiffs
rely heavily on Justice Marshall's dissent in Lake Country, in which
he stated:
To cloak [appointed] officials with absolute protection where
control by the electorate is so attenuated subverts the very system
of checks and balances that (start page 6) the doctrine of
legislative privilege was designed to secure. Insulating appointed
officials from liability, no matter how egregious their
"legislative- misconduct, is unlikely to enhance the integrity of
the legislative process.
Lake Country, 440 U.S. at 407 (Marshall, J., dissenting). The Supreme
Court, however, rejected Justice Marshall's argument in both Lake
Country and Boga in favor of a functional analysis of legislative
immunity. See Lake Countr, 440 U.S. 391, 403-06 (granting legislative
immunity to decisions of unelected regional body); Bogan, 1998 WL
85313 at *6. Specifically, the Court explained in Bogan that
legislative immunity was premised on the notion that "the exercise of
legislative discretion should not be inhibited by judicial
interference or distorted-by the fear of personal liability," and that
this rationale applied equally to state, regional, and local
legislators. Bogan, 1998 WL 85313 at *6; see also Bruce, 631 F.2d at
277-80 (adopting functional analysis of Lake Country and finding that
absolute immunity applied to legislative decisions of local
officials). Based on this authority, we reject plaintiffs, argument.
It is clear in this case that the Library Board's decision to adopt
the Policy was legislative in nature. Virginia Code '42.1-35 gives
the Library Board legislative authority to create and adopt rules and
bylaws for the governance of the library (start page 7) system, and
the Policy was enacted pursuant to that authority. Moreover, the
Policy is prospective in nature, and of general application. In
contrast, the examples given by plaintiffs of non-legislative acts are
individual and adjudicative in nature and do not pertain here. See
Scott v. Greenville Co., 716 F.2d 1409, 1423 (4th Cir. 1983)
(wrongful withholding of building permit); Front Royal & Warren County
Indus. Park Corp. v. Town of Front Royal, Va., 865 F.2d 77, 79 (4th
Cir. 1989) (withholding of sewer service). Like the City Council's
adoption of an ordinance in Bogan, the Library Board's adoption of the
Policy was essentially a discretionary exercise of rulemaking
authority. As such, it is properly treated as legislative in nature.
Accordingly, under Bogan, the Library Board and its members are
entitled to absolute immunity for their decision to adopt the Policy.
However, in addition to promulgating Library rules and regulations,
the Library Board is also charged with the "management and control of
[the] free public library system." Va. Code Ann. '42.1-35. The
Library Board therefore has a prominent role in enforcing the policy
it has chosen to adopt. Plaintiffs, allegations specifically target
the Library Board's enforcement activities, in a section entitled
"Implementation of (start page 8) the Policy." Complaint 670. Indeed,
one aspect of the Board's enforcement role, its choice of the
filtering software used to block "pornography," is a central issue in
the instant action.
In Consumers Union, the Court held that the Virginia Supreme Court
acted in a legislative capacity when it promulgated the Virginia Code
of Professional Responsibility, and was therefore entitled to absolute
immunity for its legislative decisions. See 446 U.S. at 734. However,
the Court allowed a '1983 action for declaratory and injunctive relief
to continue against the Virginia court because it found that the court
also played a nonlegislative role in enforcing the Code. As such, the
Virginia Supreme Court could properly be enjoined from enforcing the
rules it had promulgated. Id. at 736. (FOOTNOTE 2) Following Consumer
Union, we find that the Library Board and its members are not
entitled to legislative immunity in their enforcement role. See id. at
73436. Plaintiffs may therefore properly sue the Library Board and its
individual members for declaratory and injunctive relief (start page
9) under '1983 to prevent them from enforcing the Policy. (FOOTNOTE 3)
See id.
B. Communications Decency Act Immunity
Defendants also claim that they are immune from suit under section 509
of the Telecommunications Act of 1996, now codified at 47 U.S.C. '230.
Section 230 is entitled "Protection for private blocking and screening
of offensive material," and provides at '230(c)(2) that:
No provider or user of an interactive computer service shall be held
liable on account of ... any action voluntarily taken in good faith
to restrict access to or availability of material that the provider
or user considers to be obscene, lewd, lascivious, filthy,
excessively violent, harassing, or otherwise objectionable, whether
or not such material is constitutionally protected.
The Act defines "interactive computer service" to include "a service
or system that provides access to the Internet [that is] offered by
libraries or educational institutions." 47 U.S.C. '230(e)(2). Based on
the above language, defendants argue that they are absolutely immune
from suit for their decision to promulgate and enforce the Policy.
(start page 10) Although defendants' interpretation of '230(a)(2) is
facially attractive, it is not supported by that section's legislative
history or relevant case law. At the beginning of '230, Congress
states that "[i]t is the policy of the United States ... to preserve
the vibrant and competitive free market that presently exists for the
Internet and other interactive computer services, unfettered by
federal or state regulation." 47 U.S.C. '230(b)(2). Interpreting '230,
the Fourth Circuit has explained that:
The purpose of ['230] statutory immunity is not difficult to
discern. Congress recognized the threat that tort-based lawsuits
pose to freedom of speech in the new and burgeoning Internet medium.
The imposition of tort liability on service providers for the
communications of others represented, for Congress, simply another
form of intrusive government regulation of speech. Section 230 was
enacted, in part, to maintain the robust nature of Internet
communication and, accordingly, to keep government interference in
the medium to a minimum.
Zeran v. America Online Inc., 129 F.3d 327, 330 (4th Cir. 1997). The
Fourth Circuit went on to explain that "[a]nother important purpose of
'230 was to encourage service providers to self-regulate the
dissemination of offensive materials over their services." Id. at 331.
Thus, as its name implies, '230 was enacted to minimize state
regulation of Internet speech by encouraging private content providers
to self-regulate against (start page 11) offensive material; '230 was
not enacted to insulate government regulation of Internet speech from
judicial review. Even if '230 were construed to apply to public
libraries, defendants cite no authority to suggest that the
"tort-based" immunity to "civil liability" described by '230 would bar
the instant action, which is for declaratory and injunctive relief.
See 47 U.S.C. '230(a)(2); Zeran, 129 F.3d at 330. We therefore hold
that 47 U.S.C. '230 does not bar this action.
C. Eleventh Amendment Immunity
Although the issue was not raised in the pleadings, at oral argument
the parties raised the possibility that plaintiffs, suit might be
barred by the Eleventh Amendment to the United States Constitution.
The Eleventh Amendment bars federal claims against states and state
officials for money damages and other retrospective relief. See
Edelman v. Jordan, 415 U.S. 651, 66667 (1974); Republic-of Paraguay
v. Allen, No. 96-2770, 1998 WL 19933 (4th Cir. Jan. 22, 1998). "A
state and its officers are not entitled to Eleventh Amendment
protection, however, where a plaintiff seeks only prospective,
injunctive relief." Gray v. Laws, 51 F.3d 426, 430 n.1 (4th Cir.
1995); see Edelman, 415 U.S. at 664-68. The same is true for awards of
costs and attorneys' fees made pursuant to 42 U.S.C. '1988. See Hutto
v. Finney, 437 (start page 12) U.S. 678, 694 (1978). Accordingly, in
the instant case, the Eleventh Amendment does not bar plaintiffs'
'1983 action for declaratory and injunctive relief and attorneys' fees
against the Library Board or its individual members.
D. Qualified Immunity
In the alternative, the individual defendants argue that, promulgating
and enforcing the Policy, they are entitled to qualified immunity
against the present suit. Public officials are entitled to qualified
immunity from liability for acts that do not "violate clearly
established statutory or constitutional principles of which a
reasonable person would have known." Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). However, as defendants concede, qualified immunity
does not apply to actions for prospective, injunctive relief like the
one at issue here, see id. (qualified immunity shields public
officials from civil damages liability), nor does it prevent an award
of attorneys' fees pursuant to 42 U.S.C. '1988 against public
officials acting in their official capacity. See Pulliam v. Allen, 466
U.S. 522, 543-44 (1984). Therefore, given the relief sought by
plaintiffs, the individual defendants are not entitled to qualified
immunity for the promulgation and enforcement of the Policy.
E. The Real Party in Interest
(start page 13) Finally, defendants argue that plaintiffs' suit
against the individual defendants is redundant because the Library
Board itself is already a party. We agree. As the Supreme Court has
recognized, "official capacity suits generally represent only another
way of pleading an action against an entity of which an officer is an
agent." Monell v. Department of Soc. Servs., 436 U.S. 658, 690 n.55
(1978). Here, plaintiffs' suit against the Library Board itself, if
successful, will provide plaintiffs with full relief against
enforcement of the Policy. Moreover, the nine-person Library Board
appears to act only by the consensus decisions of its members. As
such, plaintiffs, suit against the five Board members who voted to
adopt the Policy is impractical as a means to enjoin the Library Board
from enforcing the Policy. This Court therefore concludes that the
individual Library Board members are unnecessary parties to this
action and should be dismissed. Plaintiffs, suit against Douglas
Henderson, Director of Library Services, is similarly unnecessary
because Henderson is sued solely as a surrogate for the Board itself;
moreover, a judgment against him cannot be expected to provide
plaintiffs with complete relief against enforcement of the Policy.
Accordingly, he will be dismissed as well.
III. Standing
(start page 13) Defendants argue that plaintiffs lack standing to
pursue this action because neither the individual plaintiffs nor
Mainstream Loudoun have suffered an actual injury as a result of the
Policy. Specifically, defendants allege that no member of Mainstream
Loudoun has attempted to access blocked Internet materials in Loudoun
County libraries, or petitioned a library to unblock a blocked site.
An association has standing to sue on behalf of its members when: "(1)
its own members would have standing to sue in their own right; (2) the
interests the organization seeks to protect are germane to the
organization's purpose; and (3) neither the claim nor the relief
sought requires the participation of the individual members in the
lawsuit." Maryland Highways Contractors v. Maryland, 933 F.2d 1246,
1250 (4th Cir. 1991); see Hunt v. Washington State Apple Adver.
Comm'n, 432 U.S. 333, 343 (1977). Defendants contend that the first
requirement is not met here because none of the individual plaintiffs
has alleged the actual injury necessary to sue on his own behalf.
Defendants' argument is contradicted by plaintiffs, Complaint, which
alleges that several Mainstream Loudoun members have attempted to
access Internet publications at Loudoun County libraries but
discovered that the sites had been blocked. See (start page 15)
Complaint 6619, 20, 23. In evaluating a motion to dismiss the Court
must treat the allegations in plaintiffs' Complaint as true. See
Scheur v. Rhodes, 416 U.S. 232, 236 (1974). Because these plaintiffs
have alleged that their access to particular Internet sites was
blocked pursuant to the Policy, their claims survive dismissal.
Defendants also allege that no individual plaintiff Claims to have
requested that a site be unblocked and had that Request denied;
however, we find that no such allegation is necessary to confer
standing. See Lamont v. Postmaster General, 381 U.S. 301 (1943). In
Lamont, the plaintiff sued to invalidate a federal statute that
directed the Postmaster General not,. to deliver a publication deemed
"communist propaganda" without a written request from the plaintiff.
See id. at 302-04. Plaintiff refused to make such a written request,
claiming that the requirement imposed an unconstitutional burden on
his First Amendment right to receive protected speech. See id. at
304-O5. Despite plaintiff's refusal to seek access to restricted
materials, the Supreme Court allowed him to maintain his First
Amendment claim. See id. In accordance with Lamont, the plaintiffs in
this case need not allege that they actually requested that a
particular site be unblocked. Instead, (start page 16) plaintiffs need
only allege that they were unable to access otherwise protected
materials as a result of the Policy. Because the Complaint contains
such allegations, the first requirement of Maryland Highways
Contractors is satisfied here. See 933 F.2d at 1250.
Defendants also allege that Mainstream Loudoun does not satisfy the
third requirement of Maryland Highways Contractors because the
interests of individual members may be in conflict with Mainstream
Loudoun's interest in pursuing this action. The Fourth Circuit has
held that associations lack standing where "there are actual conflicts
of interest which would require that the individual members come into
the lawsuit to protect their interests." Id. at 1252-53. As evidence
of an actual conflict, defendants point to Mainstream Loudoun's
allegation that: "We reflect countless races, religions and
lifestyles, and we often differ on questions of morality and
behavior." Complaint 612. However, defendants ignore Mainstream
Loudoun's additional claim that its unifying goal is "to ensur[e] a
free and open society that preserves religious and personal freedom as
established by the U.S. Constitution." Complaint 612. That Mainstream
Loudoun has a diverse membership does not, by itself, demonstrate the
existence of an actual conflict of interest in this case. (start page
17) Moreover, plaintiffs have alleged that a judgment invalidating the
Policy will completely satisfy the interests of the association's
members. As such, Mainstream Loudoun appears to satisfy all of the
elements needed to have standing. For these reasons, Mainstream
Loudoun will not be dismissed from this action.
Finally, defendants correctly note that several plaintiffs fail to
allege that they ever attempted to access an Internet site blocked
pursuant to the Policy. See Complaint 6615-18, 21 22, 24-25
(plaintiffs Judy Coughlin, Henry Taylor, Ann Curley, Judith Hines,
Kathryn Kern-Levine, Michael Clay, Jerome Smith, and Mary Adams).
Without that allegation, these individual plaintiffs cannot claim that
they were ever denied access to constitutionally protected speech. As
such, they have not alleged an actual injury sufficient to maintain
standing. See Northeastern Fla. Contractors v. Jacksonville, 508 U.S.
656, 663 (1993). These individual plaintiffs must therefore be
dismissed from this action.
IV. Plaintiffs' First Amendment Claim
In their Motion to Dismiss for Failure to State a Claim, or, in the
Alternative, for Summary Judgment, defendants concede that the Policy
prohibits access to speech on the basis of its (start page 18)
content. See Def. Brief at 11. However, defendants argue that the
"First Amendment does not in any way limit the decisions of a public
library on whether to provide access to information on the Internet."
Def. Brief at 2. Indeed, at oral argument, defendants went so far as
to claim that a public library could constitutionally prohibit access
to speech simply because it was authored by African-Americans, or
because it espoused a particular political viewpoint, for example
pro-Republican. Feb. 27, 1998 Hearing Transcript at 48. Thus, the
central question before this Court is whether a public library may,
without violating the First Amendment, enforce content-based
restrictions on access to Internet speech.
No cases directly address this issue. However, the parties agree that
the most analogous authority on this issue is Board of Education v.
Pico, 457 U.S. 853 (1982), in which the Supreme Court reviewed the
decision of a local board of education to remove certain books from a
high school library based on the board's belief that the books were
"anti-American, anti-Christian, anti-Sem[i]tic, and just plain
filthy." Id. at 856. The Second Circuit had reversed the district
court's grant of summary judgment to the school board on plaintiff's
First Amendment claim. A sharply-divided Court voted to affirm the
(start page 19) Court of Appeal's decision to remand the case for a
Determination of the school board's motives. However, the Court did
not render a majority opinion. Justice Brennan, joined by three
Justices, wrote what is commonly referred to as the "plurality"
opinion. Justice Brennan held that the First Amendment necessarily
limits the government's right to remove materials on the basis of
their content from a high school library. See id. at 864-69 (plurality
op.). Justice Brennan reasoned that the right to receive information
is inherent in the right to speak and that "the State may not,
consistently with the spirit of the First Amendment, contract the
spectrum of available knowledge." Id. at 866 (quoting Griswold v.
Connecticut, 381 U.S. 479, 482 (1965)); see also Stanley v. Georgia,
394 U.S. 557, 564 (1969) ("the Constitution protects the right to
receive information and ideas"). Justice Brennan explained that this
principle was particularly important given the special role of the
school's library as a locus for free and independent inquiry. See id.
at 869. At the same time, Justice Brennan recognized that public high
schools play a crucial inculcative role in "the preparation of
individuals for participation as citizens" and are therefore entitled
to great discretion "to establish and apply their curriculum in such a
way as to transmit community values." Id. (start page 20) at 863-64
(quoting Ambach v. Norwick, 441 U.S. 68, 76-77 (1979) (internal
quotation marks omitted)). Accordingly, Justice Brennan held that the
school board members could not remove books "simply because they
dislike the ideas contained [in them]," thereby "prescrib[ing] what
shall be orthodox in politics, nationalism, religion, or other matters
of opinion," but that the board might remove books for reasons of
educational suitability, for example pervasive vulgarity. Id. at 872
(quoting West Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943))
(internal quotation marks omitted).
In a concurring opinion, Justice Blackmun focused not on the right to
receive information recognized by the plurality, but on the school
board's discrimination against disfavored ideas. Justice Blackmun
explicitly recognized that Pico's facts invoked two significant,
competing interests: the inculcative mission of public high schools
and the First Amendment's core proscription against content-based
regulation of speech. See id. at 876-79 (Blackmun, J., concurring).
Justice Blackmun noted that the State must normally demonstrate a
compelling reason for content based regulation, but that a more
limited form of protection should apply in the context of public high
schools. See id. At 877-78. Balancing the two principles above,
Justice Blackmun (start page 21) agreed with the plurality that the
school board. could not remove books based on mere disapproval of
their content but could limit its collection for reasons of
educational suitability or budgetary constraint. See id. at 879.
Dissenting, Chief Justice Burger, joined by three Justices, concluded
that any First Amendment right to receive speech did not affirmatively
obligate the government to provide such speech in high school
libraries. See id. at 888 (Burger, C.J., dissenting). Chief Justice
Burger reasoned that although the State could not constitutionally
prohibit a speaker from reaching an intended audience, nothing in the
First Amendment requires public high schools to act as a conduit for
particular speech. See id. at 885-89. Chief Justice Burger explained
that such an obligation would be inconsistent with public high
schools, inculcative mission, which necessarily requires schools to
make content-based choices among competing ideas in order to establish
a curriculum and educate students. See id. at 889.
Defendants contend that the Pico plurality opinion has no application
to this case because it addressed only decisions to remove materials
from libraries and specifically declined to address library decisions
to acquire materials. See id. at 861 63, 871-72 (plurality op.).
Defendants liken the Internet to a (start page 22) vast Interlibrary
Loan system, and contend that restricting Internet access to selected
materials is merely a decision not to acquire such materials rather
than a decision to remove them from a library's collection. As such,
defendants argue, the instant case is outside the scope of the Pico
plurality.
In response, plaintiffs argue that, unlike a library's collection of
individual books, the Internet is a "single, integrated system." Pl.
Brief at 14 (quoting ACLU v, Reno, 929 F. Supp. 824, 838 (E.D. Pa.
1996), aff'd, 117 S. Ct. 2329 (1997). As plaintiffs explain, "[t]hough
information on the Web is contained in individual computers, the fact
that each of these computers is connected to the Internet through
[World Wide Web] protocols allows all of the information to become
part of a single body of knowledge." Pl. Brief at 15 (quoting Reno,
929 F. Supp. at 836). Accordingly, plaintiffs analogize the Internet
to a set of encyclopedias, and the Library Board's enactment of the
Policy to a decision to "black out" selected articles considered
inappropriate for adult and juvenile patrons.
After considering both arguments, we conclude that defendants have
misconstrued the nature of the Internet. By purchasing Internet
access, each Loudoun library has made all Internet publications
instantly accessible to its patrons. (start page 23) Unlike an
Interlibrary loan or outright book purchase, no appreciable
expenditure of library time or resources is required to make a
particular Internet publication available to a library patron. In
contrast, a library must actually expend resources to restrict
Internet access to a publication that is otherwise immediately
available. In effect, by purchasing one such publication, the library
has purchased them all. The Internet therefore more closely resembles
plaintiffs' analogy of a collection of encyclopedias from which
defendants have laboriously redacted portions deemed unfit for library
patrons. As such, the Library Board's action is more appropriately
characterized as a removal decision. We therefore conclude that the
principles discussed in the Pico plurality are relevant and apply to
the Library Board's decision to promulgate and enforce the Policy.
Plaintiffs also contend that the plurality's decision in Pico
establishes a blanket rule that removal decisions by libraries may not
be resolved on summary judgment. We find plaintiffs, reading of Pico
to be oversimplistic. It is true that a majority of the Pico Court
voted to remand the case for a determination of the school board's
motives, impliedly rejecting the unfettered discretion defendants
claim. See id. at 875. At (start page 24) the same time, however, a
majority of the Court could not agree on the degree of discretion
available to school libraries. See id. at 856 (plurality op.); 875
(Blackmun, J., concurring); cf. id. at 883 (White, J., concurring).
Nor did any of the Pico Justices directly address the special
circumstances that obtain in public libraries. It would therefore be
inappropriate for this Court to deny defendants' motion without first
determining the scope of discretion available to the Library Board to
remove materials on the basis of their content.
Defendants argue that any limitation on their discretion to remove
materials would force them to act as an unwilling conduit of
information, and urge this Court to adopt the position of the Pico
dissent. Defendants interpret the dissent to mean that they are
entitled to unfettered discretion in deciding what materials to make
available to library patrons.
Adopting defendants, position, however, would require this Court to
ignore the Pico plurality's decision to remand the case, as discussed
above. Moreover, all of the Pico Justices, including the dissenters,
recognized that any discretion accorded to school libraries was
uniquely tied to the public school's role as educator. See id. at
863-64, 869-71 (plurality op.); 875-76, 879 (Blackmun, J., concurring)
("Certainly, the unique (start page 25) environment of the school
places substantial limits on the extent to which official decisions
may be restrained by First Amendment values."); cf. id. at 889-92
(Burger, C.J., dissenting) ("Whatever role the government might play
as a conduit of information, schools in particular ought not be made a
slavish courier of the material of third parties ... . How are
'fundamental values, to be inculcated except by having school boards
make content-based decisions about the appropriateness of retaining
materials in the school library and curriculum[?]"); 909-10
(Rehnquist, J., dissenting) ("When it acts as an educator ... the
government is engaged in inculcating social values and knowledge in
relatively impressionable young people . In short, actions by the
government as educator do not raise the same First Amendment concerns
as actions by the government as sovereign."); 921 (O'Connor, J.,
dissenting) (stating that "in this case the government is acting in
its special role as educator"). of even more significance to our case
is Justice Rehnquist's observation that high school libraries must be
treated differently from public libraries. See id. at 915 (Rehnquist,
J., dissenting) ("Unlike university or public libraries, elementary
and secondary school libraries are not designed for freewheeling
inquiry."). Indeed, Chief Justice (start page 26) Burger and Justice
Rehnquist justified giving public schools broad discretion to remove
books in part by noting that such materials remained available in
public libraries. See id. at 892 (Burger, C.J., dissenting) ("Books
may be acquired from ... public libraries, or other alternative
sources unconnected with the unique environment of the local public
schools."); 915 (Rehnquist, J., dissenting)("[T]he most obvious reason
that petitioners' removal of the books did not violate respondents'
right to receive information is the ready availability of the books
elsewhere. ... The books may be borrowed from a public library.").
Accordingly, neither the dissent nor the plurality of Pico can be said
to support defendants' argument that public libraries enjoy unfettered
discretion to remove materials from their collections.
To the extent that Pico applies to this case, we conclude that it
stands for the proposition that the First Amendment applies to, and
limits, the discretion of a public library to place content-based
restrictions on access to constitutionally protected materials within
its collection. Consistent with the mandate of the First Amendment, a
public library, "like other enterprises operated by the State, may not
be run in such a manner as to 'prescribe what shall be orthodox in
politics, (start page 27) nationalism, religion, or other matters of
opinion."' Id. at 876 (Blackmun, J., concurring) (quoting Barnette,
319 U.S. at 642).
Furthermore, the factors which justified giving high school libraries
broad discretion to remove materials in Pico are not present in this
case. The plaintiffs in this case are adults rather than children.
Children, whose minds and values are still developing, have
traditionally been afforded less First Amendment protection,
particularly within the context of public high schools. See Tinker v.
Des Moines Sch. Dist., 393 U.S. 503, 506 (1969). In contrast, adults
are deemed to have acquired the maturity needed to participate fully
in a democratic society, and their right to speak and receive speech
is entitled to full First Amendment protection. Accordingly, adults
are entitled to receive categories of speech, for example "pervasively
vulgar" speech, which may be inappropriate for children. See Reno v.
ACLU, 117 S. Ct. 2329, 2346 (1997); Sable Communications v. FCC, 492
U.S. 115, 126 (1989).
More importantly, the tension Justice Blackmun recognized between the
inculcative role of high schools and the First Amendment's prohibition
on content-based regulation of speech does not exist here. See Pico,
457 U.S. at 876-80 (Blackmun, J., concurring). Public libraries lack
the inculcative mission that (start page 28) is the guiding purpose of
public high schools. Instead, public libraries are places of
freewheeling and independent inquiry. See id. at 914 (Rehnquist, J.,
dissenting). Adult library patrons are presumed to have acquired
already the "fundamental values" needed to act as citizens, and have
come to the library to pursue their personal intellectual interests
rather than the curriculum of a high school classroom. As such, no
curricular motive justifies a public library's decision to restrict
access to Internet materials on the basis of their content.
Finally, the unique advantages of Internet speech eliminate any
resource-related rationale libraries might otherwise have for engaging
in content-based discrimination. The Supreme Court has analogized the
Internet to a "vast library including millions of readily available
and indexed publications," the content of which "is as diverse as
human thought." Reno, 117 S. Ct. at 2335. Unlike more traditional
libraries, however, there is no marginal cost associated with
acquiring Internet publications. Instead, all, or nearly all, Internet
publications are jointly available for a single price. Indeed, it
costs a library more to restrict the content of its collection by
means of blocking software than it does for the library to offer
unrestricted access to all Internet publications. Nor do Internet
publications, which exist (start page 29) only in "cyberspace," take
up shelf space or require physical maintenance of any kind.
Accordingly, considerations of cost or physical resources cannot
justify a public library's decision to restrict access to Internet
materials. Cf. Pico, 457 U.S. at 909 (Rehnquist, J., dissenting)
(budgetary considerations force schools to choose some books over
others); 879 n.1 (Blackmun, J., concurring) (same).
In sum, there is "no basis for qualifying the level of First Amendment
scrutiny" that must be applied to a public library's decision to
restrict access to Internet publications. Reno, 117 S. Ct. at 2344. We
are therefore left with the First Amendment's central tenet that
content-based restrictions on speech must be justified by a compelling
governmental interest and must be narrowly tailored to achieve that
end. See Simon & Schuster, Inc. v. Members of the N.Y. State Crime
Victims Bd., 502 U.S. 105, 118 (1991). This principle was recently
affirmed within the context of Internet speech. See Reno, 117 S. Ct.
at 2343-48. Accordingly, we hold that the Library Board may not adopt
and enforce content-based restrictions on access to protected Internet
speech absent a compelling state interest and means narrowly drawn to
achieve that end.
This holding does not obligate defendants to act as (start page 30)
unwilling conduits of information, because the Library Board need not
provide access to the Internet at all. Having chosen to provide
access, however, the Library Board may not thereafter selectively
restrict certain categories of Internet speech because it disfavors
their content. In accord with this holding is Lamont, discussed supra,
in which the Court held that the Post office could not
constitutionally restrict access to speech it considered "communist
propaganda," stating that "'[t]he United States may give up the
post-office when it sees fit, but while it carries it on the use of
the mails is almost as much a part of free speech as the right to use
our tongues.'" Lamont, 381 U.S. at 305 (quoting Milwaukee Soc. Dem.
Pub. Co. v. Burleson, 255 U.S. 407, 437 (1921) (Holmes, J.,
dissenting)); see id. at 310 ("If the Government wishes to withdraw a
subsidy or a privilege, it must do so by means and on terms which do
not endanger First Amendment rights.") (Brennan, J., concurring).
Similarly, in this case, the Library Board need not offer Internet
access, but, having chosen to provide it, must operate the service
within the confines of the First Amendment.
A. Obscenity, Child Pornography and Speech "Harmful to Juveniles"
Having determined that a public library must satisfy strict (start
page 31) scrutiny before it may engage in content-based regulation of
protected speech, we now consider the speech regulated by the Policy.
The Policy prohibits access to three types of speech: obscenity, child
pornography, and materials deemed "[h]armful to [j]uveniles."
Complaint Ex. 1. obscenity and child pornography are not entitled to
the protections of the First Amendment, and the government may
legitimately restrict access to such materials. See New York v.
Ferber, 458 U.S. 747 (1982) (child pornography); Miller v.
California, 413 U.S. 15 (1973) (obscenity). Indeed, [t]ransmitting
obscenity and child pornography, whether via the Internet or other
means, is already illegal under federal law for both adults and
juveniles." Reno, 117 S. Ct. at 2348 n.44. In the instant case,
however, plaintiffs allege that the X-Stop filtering software chosen
by defendants restricts many publications which are not obscene or
pornographic, including materials unrelated to sex altogether, such as
the Quaker's website. See Complaint 696-105. Moreover, plaintiffs
allege that X-Stop fails to block access to pornographic materials
arguably covered by the Policy. See Complaint 6127. most importantly,
plaintiffs allege that the decision as to which materials to block is
made by a California corporation based on secret criteria not
disclosed even to (start page 32) defendants, criteria which may or
may not bear any relation to legal definitions of obscenity or child
pornography. See Complaint 6695, 128-29. As such, plaintiffs argue
that the means called for by the Policy are not narrowly tailored to
any legitimate interest defendants may have in regulating obscenity
and child pornography.
The Policy also prohibits access to materials which are "deemed
Harmful to Juveniles under applicable Virginia statutes and-legal
precedents." This appears to be a reference to Virginia Code
'18.2-390, which defines materials "Harmful to Juveniles" to include
sexual content that:
(a) predominately appeals to the prurient, shameful or morbid
interest of juveniles, (b) is patently offensive to prevailing
standards in the adult community as a whole with respect to what is
suitable material for juveniles, and (c) is, when taken as a whole,
lacking in serious literary, artistic, political or scientific value
for juveniles.
Plaintiffs allege that the Policy improperly limits adult Internet
speech to what is fit for children. In support, plaintiffs cite Reno,
117 S. Ct. at 2329. In Reno, the Supreme Court held that a
content-based Internet regulation intended to prevent the transmission
of material harmful to minors was unconstitutional because it
suppressed speech adults were constitutionally entitled to send and
receive. The Court stated: (start page 33)
it is true that we have repeatedly recognized the governmental
interest in protecting children from harmful materials. But that
interest does not justify an unnecessarily broad suppression of
speech addressed to adults. As we have explained, the Government may
not "reduc[e] the adult population ... to ... only what is fit for
children."
Id. at 2346 (quoting Denver Area Telecomm. Consortium v. FCC, 116
S.Ct. 2374, 2393 (1996)) (citations omitted). The Court went on to
cite Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), for the
proposition that: "'[R]egardless of the strength of the government's
interest' in protecting children, '[t]he level of discourse reaching a
mailbox simply cannot be limited to that which would be suitable for a
sandbox.'" Reno, 117 S. Ct. at 2346 (quoting Bolger, 463 U.S. at
74-75). Applying Reno to the instant case, it is clear that defendants
may not, in the interest of protecting children, limit the speech
available to adults to what is fit for "juveniles." As plaintiffs
point out, even when government regulation of content is undertaken
for a legitimate purpose, whether it be to prevent the communication
of obscene speech or materials harmful to children, the means it uses
must be a "reasonable response to the threat" which will alleviate the
harm "in a direct and material way." Turner Broadcasting v. FCC, 512
U.S. 622, 624 (1994). Plaintiffs have adequately alleged a lack of
such reasonable means here. As (start page 34) such, plaintiffs have
stated a valid First Amendment claim which may go forward.
B. The Unblocking Policy
Defendants contend that, even if the First Amendment limits the
Library Board's discretion to remove materials, the unblocking
procedure ensures the constitutionality of the Policy because it
allows library staff to make certain that only constitutionally
unprotected materials are blocked. Under the unblocking policy,
library patrons who have been denied access to a site may submit a
written request which must include their name, telephone number, and a
detailed explanation of why they desire access to the blocked site.
The library staff then "decide[s] whether the request should be
granted." Def. Brief at 3. (FOOTNOTE 4)
Plaintiffs argue that the unblocking procedure constitutes an
unconstitutional burden on the right of library patrons to access
protected speech, citing Lamont, 381 U.S. at 301. The statute at issue
in Lamont directed the Postmaster General not to deliver "communist
propaganda" to postal patrons unless they (start page 35) first
returned to the Post Office a card bearing their names and addressess
and specifically requesting that such materials be sent to them. See
id. at 302-04. The Supreme Court held the statute to be
"unconstitutional because it require [d] an official act (viz.,
returning the reply card) as a limitation on the unfettered exercise
of the addressees' First Amendment rights." Id. at 305. In particular,
the Court noted the severe chilling effect of forcing citizens to
publicly petition the Government for access to speech it clearly
disfavored. See id. at 307.
Here, as in Lamont, the unblocking policy forces adult patrons to
petition the Government for access to otherwise protected speech, for
example speech "Harmful to Juveniles." Indeed, the Loudoun County
unblocking policy appears more chilling than the restriction at issue
in Lamont, because it grants library staff standardless discretion to
refuse access to protected speech, whereas the statute at issue in
Lamont required postal employees to grant access requests
automatically. As such, defendants' alleged unblocking procedure does
not in any way undercut plaintiffs' First Amendment claim.
V. Conclusion
For the reasons set forth above, defendants' Motion to Dismiss the
Individual Defendants will be GRANTED, and their (start page 36)
Motion to Dismiss for Failure to State a Claim will be GRANTED IN PART
as to certain plaintiffs and DENIED in all other respects. As to
defendants' Motion in the Alternative for Summary Judgment, this Court
holds that several material factual issues remain which mandate
against summary judgment at this time. These include, but are not
limited to, defendants, justification for the Policy, the Internet
sites blocked by X-Stop, and the degree of defendant's knowledge of
and control over the sites X-Stop blocks. Accordingly, defendants'
Motion in the Alternative for Summary Judgment will also be DENIED. An
appropriate order will issue.
The Clerk is directed to forward copies of this Memorandum Opinion to
counsel of record.
Entered this 7th day of April, 1998.
_______________________
Leonie M. Brinkema
United States District Judge
Alexandria, Virginia
_________________________________________________________________
Footnotes
1. In a February 24, 1998 Order, this Court granted a Motion to
Intervene as Plaintiffs made by several individuals and organizations
which publish speech on the Internet. Intervenors argue that
defendants have unconstitutionally interfered with their First
Amendment rights as speakers to communicate with Loudoun County
library patrons. The intervenors, claim is not explicitly at issue in
the motions now before the Court.
2. Although the Court allowed the action to continue, it held that an
award of costs and attorneys' fees pursuant to 42 U.S.C. '1988 was
inappropriate because any such award was premised on the Virginia
court's legislative activities, for which they enjoyed absolute
immunity. See id. at 738-39.
3. As in Consumer Union, plaintiff's request for costs and attorneys'
fees pursuant to 42 U.S.C. '1988 may be inappropriate if premised on
the Library Board's decision to adopt the Policy, a decision made in
its legislative capacity. See Consumers Union, 446 U.S. at 738-39. We
need not and do not make such a determination at this early stage in
the litigation.
4. For purposes of defendants' Motion to Dismiss for Failure to State
a Claim or, in the Alternative, for Summary Judgment, the Court
accepts plaintiffs' description of the unblocking policy as accurate.
See Complaint 66127-29.
------------------------------
Date: Thu, 7 May 1997 22:51:01 CST
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