Federal Judge Bans Public Library from Filtering Out Net Porn

(November 24, 1998) U.S. District Court Judge Leonie Brinkema ruled yesterday that the Loudoun County Library can no longer continue its policy of running software on its public use computers that blocks access to Internet pornography. 

See, summary of Mainstream Loudoun v. Board of Trustees of the Loudoun County Public Libraries.  Case No. 97-2049, U.S. District Court, E.D. Virginia.

People for the American Way (PFAW) and the American Civil Liberties Union (ACLU) sued the Loudoun County Library, nominally on behalf of local residents and blocked websites.  They claimed that the use of X-STOP blocking software on the Libraries' computers violates the First Amendment rights of both library patrons and websites.

The presiding Judge, Leonie Brinkema, agreed, and granted the plaintiffs' motions for summary judgment.  The only issue left for this Judge to decide is whether (and how much) attorneys fees must be paid by the library to PFAW and ACLU.

Judge Brinkema's Rulings

Memorandum Opinion, 11/23/98.
Order, 11/23/98.
Opinion, 4/7/98.

Judge Brinkema released a two page Order granting the plaintiffs' motions for summary judgment, and a 46 page Memorandum Opinion explaining her decision.   Brinkema decided that the Library's Policy is unconstitutional for many reasons.  She wrote:

"Although defendant is under no obligation to provide Internet access to its patrons, it has chosen to do so and is therefore restricted by the First Amendment in the limitations it is allowed to place on patron access. Defendant has asserted a broad right to censor the expressive activity of the receipt and communication of information through the Internet with a Policy that (1) is not necessary to further any compelling government interest; (2) is not narrowly tailored; (3) restricts the access of adult patrons to protected material just because the material is unfit for minors; (4) provides inadequate standards for restricting access; and (5) provides inadequate procedural safeguards to ensure prompt judicial review. Such a Policy offends the guarantee of free speech in the First Amendment and is, therefore, unconstitutional."  (See, page 45.)

The plaintiffs' lawyers are pleased.  "This is the first decision in the nation that fully applies First Amendment principles to the Internet in public libraries," said Elliot Mincberg, legal director of PFAW, in a press release issued immediately after the ruling.  "The court agreed with us that a public library may not reduce adults to the electronic equivalent of the children's reading room."

Ann Beeson, the lead ACLU attorney, stated in a press release that "The court clearly agreed that mandatory filtering blocks adult library patrons from accessing important online speech on issues ranging from safer sex to fine art to popular news columns."

The Library Board of Directors has not yet decided whether or not to appeal the decision.


This case of first impression is pending in federal court in Alexandria, Virginia, just across the Potomac River from Washington DC.  The presiding Judge, Leonie Brinkema, is a liberal judicial activist and Clinton appointee.

In October of 1997 the Loudoun County Public Library adopted a Policy on Internet Sexual Harassment which required the library staff to install blocking software on the computers which patrons use to access the Internet.  This Policy stated that:

"Library pornography can create a sexually-hostile environment for patrons or staff.  Pornographic internet displays may intimidate patrons or staff, denying them equal access to public facilities. Such displays would transform the library environment from one of reading and scholarship to one which invites unwelcome sexual advances and sexual harassment."

The Policy further calls for software to "block child pornography and obscene material ... [and] block material deemed Harmful to Juveniles."

The initial Complaint was filed in December of 1997 by PFAW on behalf of Mainstream Loudoun, a small group of Loudoun County residents.  However, soon after, the ACLU filed an an intervenors' Complaint on behalf of several websites.  The defendant promptly filed a motion dismiss and motion for summary judgment, and brief in support, in part on the grounds that it was granted immunity under the Telecommunications Act of 1996 from suits arising out of blocking access to obscene websites.

In a preliminary Opinion released on April 7, Judge Brinkema ruled that the constitutional standard of "strict scrutiny" would be applied to the Library's actions.  Since "strict scrutiny" is such a difficult standard to meet, Judges almost always hold state actions unconstitutional when this test is applied.  Judge Brinkema also ruled in that Opinion that Section 230 of the 1996 Act does not apply in this type of case.

The parties then proceeded to conduct discovery of facts.  In September, the parties filed cross-motions for summary judgment.


Brinkema devoted a considerable amount of her Memorandum Opinion to the subject of standing.  (See, Section I, at pages 5-16.)

Standing. In the federal system, litigants must satisfy constitutional standing requirements in order to create a legitimate case or controversy within the meaning of Article III of the Constitution.  In construing this language the courts have held that the gist of the question of standing is whether the party seeking relief has alleged a personal stake in the outcome of the controversy so as to insure that real, rather than remote or possible, adverseness exists to sharpen the presentation of issues. Barron's Dictionary of Legal Terms, 2nd ed.

As is often the case with policy oriented litigation brought by special interests groups, the actual plaintiffs have very little at stake in the suit, and a tenuous claim that there is a genuine case or controversy.

None of the intervening website plaintiffs are being blocked.  Indeed, the Library argued that several had never been blocked.  Hence, the Library claimed that none of the plaintiffs is being harmed by the Library's Policy.

Brinkema ruled that the websites that had been blocked, but are now unblocked, have standing, both because they could be blocked again in the future, and because this suit falls under the "capable of repetition, yet evading review" doctrine.   (See, page 12.)

However, one plaintiff's only claim was that his website had a link to a website that was blocked by X-Stop software.  This was too tenuous a connection, even for Judge Brinkema, and the Library's Motion for Summary Judgment was granted as to him (and only him).

First Amendment

Brinkema then devoted the bulk of her opinion to a discussion of First Amendment free speech principles.  (See, pages 17-45.)

She first confirmed again that this case involves a "content-based" "prior restraint" of speech, and hence, the appropriate standard of review is "strict scrutiny."  Brinkema rejected the Library's arguments that this was not a speech case at all, and that even if it were, it involves regulation of the "time, place, and manner" of speech, rather than regulation of content, and should thus be subject to the lower standard of review of intermediate scrutiny.

The "strict scrutiny" test in this case, wrote Brinkema, entails that to pass constitutional muster, the restraint must be "necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end."

She then proceeded to analyze the many ways it failed to meet this test.  First, she began by allowing that the Library did have compelling interests.  "For the purposes of this analysis, therefore, we assume that minimizing access to illegal pornography and avoidance of creation of a sexually hostile environment are compelling government interests."  But, that was all she conceded.

She then found that the Library's Policy was not necessary to achieve those interests.

Next, she found that the Policy was not narrowly tailored.  She wrote:

"We find that the Policy is not narrowly tailored because less restrictive means are available to further defendant's interests and ... there is no evidence that defendant has tested any of these means over time. First, the installation of privacy screens is a much less restrictive alternative that would further defendant's interest in preventing the development of a sexually hostile environment. ... Second, there is undisputed evidence in the record that charging library staff with casual monitoring of Internet use is neither extremely intrusive nor a change from other library policies. ... Third, filtering software could be installed on only some Internet terminals and minors could be limited to using those terminals. Alternately, the library could install filtering software that could be turned off when an adult is using the terminal."

However, Brinkema wrote that even if the Library were to follow these policies, it might still be in violation of the constitutional.  She added:

"While we find that all of these alternatives are less restrictive than the Policy, we do not find that any of them would necessarily be constitutional if implemented.  That question is not before us."  (See, pages 34-35.)

She also found the Library's Policy constitutionally infirm because it restricts the access of adults to material that is fit for children.  She wrote:

"In examining the specific Policy before us, we find it overinclusive because, on its face, it limits the access of all patrons, adult and juvenile, to material deemed fit for juveniles."  (See, page 36.)

Finally, she also found that the Policy provides inadequate standards for restricting access, and provides inadequate procedural safeguards to ensure prompt judicial review.

230 Immunity

Brinkema very briefly disposed of the Loudoun Library's argument that it is immune from this sort of suit under Section 230 of the Telecom Act of 1996.

47 U.S.C. 230(c) (excerpts)

(1) TREATMENT OF PUBLISHER OR SPEAKER- No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) CIVIL LIABILITY- No provider or user of an interactive computer service shall be held liable on account of--

(A) 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;

This section provides immunity from civil suit for restricting access to obscene material, regardless of whether the material is constitutionally protected.  Brinkema did not hold this section unconstitutional.  Instead, she read into the statute a distinction between suits for damages and suits for injunction relief.  Then, she further read into the statute the principle that there is no immunity from the injunctive suits.

She wrote: "In our previous opinion, we found that 230 provides immunity from actions for damages; it does not, however, immunize defendant from an action for declaratory and injunctive relief. We see no reason to stray from our earlier decision, which is the law of this case. If Congress had intended the statute to insulate Internet providers from both liability and declaratory and injunctive relief, it would have said so."  (See, Section II, pages 16-17.)

Related Stories

ACLU Requests to Intervene in Loudoun Case, 2/6/98.
Court Holds Hearing in Loudoun Case, 2/27/98.
Judge Strikes Down Law In Urofsky Case, 2/27/98.
Brinkema Rules on Defendants' Motion to Dismiss, 4/8/98.
Plaintiffs File Motion for Summary Judgment, 9/6/98.
Loudoun Library Files Motion for Summary Judgment, 9/6/98.
Judge Hears Arguments on Motions for Summary Judgment, 9/28/98.
Judge Cancels Trial in Net Filtering Case, 10/3/98.