ACLU Requests to Intervene in Loudoun Library Case

(February 6, 1998)  The American Civil Liberties Union filed a motion to intervene in Mainstream Loudoun v. Board of Directors of the Loudoun County Public Libraries on behalf of eight individuals and organizations who publish on the Internet whose web pages are blocked by X-STOP software.

The underlying suit was brought on December 22, 1997 by a group of Loudoun County Virginia residents against their County library system.  They allege that the use of blocking software violates their Constitutional right to freedom of speech.

ACLU is not a party, but acting as attorney for a group of clients are who are "internet speakers".  These include people who publish web pages for safe sex, a transgender association, and gay and lesbian teenagers.  Jonathan Wallace's, whose Ethical Spectacle is blocked, is also a party. 

ACLU, as well as Jonathan Wallace, were plaintiffs in ACLU v. Reno, the suit which resulted in the Communications Decency Act being held unconstitutional by the U.S. Supreme Court.

The ACLU's Motion to Intervene and supporting papers were filed with the U.S. District Court for the Eastern District of Virginia at Alexandria on February 6, 1998.  A hearing on several motions is scheduled for February 20, 1998.

Legal Claims

The ACLU argues that Loudoun County has violated its clients' right to freedom of speech by installing software that blocks access to their web pages.  ACLU further argues that the strict scrutiny test should be applied by the Court.

The ACLU's objection is not limited to X-STOP's blocking of its clients' sites; it attacks the Constitutionality of the entire technology of blocking software.   "Blocking software cannot be "fixed" to block only speech that is unprotected by the Constitution.  There is simply no way for a computer program to make distinctions between protected and unprotected speech.  Defendant's mandate that blocking software be used whenever a patron accesses the Internet, no matter what the software, will suppress ideas and viewpoints that are constitutionally protected from reaching willing patrons."  (Complaint, at paragraph 6.)

In addition, the "Good Samaritan clause" of the Telecom Act of 1996 offers no protection to Loudoun County, according to the ACLU.  47 U.S.C. 230(c)(2)(a) provides that "[n]o provider . . . of an interactive computer service shall be held liable on account of . . . any action voluntarily undertaken in good faith to restrict access to or availability of material that the provider . . . considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected."  The ACLU pleads that it is either inapplicable or unconstitutional.  (Complaint, at paragraph 162.)

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