Plaintiffs Move for Summary Judgment in Loudoun Library Blocking Software Case

(September 6, 1998)  The plaintiffs filed voluminous papers on Friday, September 4, in their lawsuit against the Loudoun County Library over its use of blocking software.  The suit was brought to establish a legal precedent that it is unconstitutional for a public library to install blocking software on its computers. The Motion for Summary Judgment, and Memorandum in Support, seek to have the matter decided without a trial.

See case summary of Mainstream Loudoun, et. al. v. Board of Trustees of the Loudoun County Public Libraries, et. al.  Case Number CV 97-2049.  United States District Court for the Eastern District of Virginia, at Alexandria, Virginia. 

A group of Loudoun County residents represented by People for the American Way (PFAW) filed a Complaint in December of 1997 in U.S. District Court in Alexandria, Virginia.  In February a group of Internet publishers represented by the ACLU intervened as additional plaintiffs.

47 USC 230(c)(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;"

The Loudoun County Library promptly moved to have the case dismissed, citing Section 230(c)(2)(A) of the Telecommunications Act of 1996.   Judge Brinkema refused to dismiss the case, and issued a lengthy opinion on the legal issues, on April 7, 1998.  (See also, 2 F.Supp.2d 783 (E.D. Va. 1998).)

Brinkema held in her April 7 opinion that a libraries' decision to use blocking software can only be upheld if it satisfies the "strict scrutiny test."   She wrote 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."

As a practical matter, once a court decides to apply the "strict scrutiny test,"  the government action is almost always held unconstitutional.

The Intervening Plaintiffs, represented by the ACLU, and the
Loudoun County Library also filed Motions for Summary
Judgment, and supporting Briefs on September 3 and 4.

Related Documents

Loudoun County's Library Policy, 10/20/97.
PFAW's Complaint/Brief, 12/22/97.
ACLU Complaint/Brief, 2/6/98.
Loudoun County's Summary Judgment Brief, 2/2/98.
Judge Brinkema's Decision, 4/7/98.
Plaintiff's (ACLU) Summary Judgment Brief, 9/3/98.
Plaintiffs' (PFAW) Summary Judgment Brief, 9/4/98.
Loudoun Library's Summary Judgment Brief, 9/4/98.

Since the April decision, the parties have been conducting pretrial discovery to learn facts relevant to the dispute.  The Memorandum begins with a lengthy section reciting the Plaintiff's version of the facts.  The Statement of Undisputed Material Facts states that the Library Board last year adopted a Policy on Internet Sexual Harassment that included restricting library patrons' access to certain material on the Internet when using the Libraries' computers.  The Memorandum further states that the Library uses X-STOP filtering software, which uses a confidential list of blocked sites.

The Plaintiffs assert that this software results in both overblocking and underblocking of information.  Finally, they argue that by using  X-STOP software, the Library failed to implement less restrictive measures.

In their legal arguments, the Plaintiffs rely heavily upon two cases: Urofsky v. Allen, 995 F. Supp. 634, 640 (E.D. Va. 1998) and  Mainstream Loudoun v. Board of Directors of Loudoun County Public Libraries, 2 F. Supp.2d at 795 (E.D. Va., April 7, 1998).  Both are opinions written by Judge Brinkema earlier this year.  The issue of whether, or under what circumstances, it is constitutional for the state to use blocking software, has not been addressed by any judge other than Leonie Brinkema.

In their legal arguments, the Plaintiffs first argue that the Policy fails to meet the First Amendment strict scrutiny test.  They argue both halves of the test: there is no compelling state interest in blocking Internet sites, and that by using X-STOP software, the Library has not used the least restrictive means to accomplish that end.

The Plaintiffs' second argument is that the Policy imposes an unconstitutional prior restraint on speech.  The Plaintiff's third argument is that the use of X-STOP software is unconstitutional because it is an imprecise method.

The Plaintiffs' fourth argument is that the Policy is unconstitutional because it is overbroad.  It impermissibly reduces adult Internet access to less than what is fit for children, and it restricts protected speech.  Finally, the Plaintiffs' argue in their brief that the Policy is unconstitutional void for vagueness.

Related Loudoun 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 Motion to Dismiss, 4/8/98.
Loudoun Library Moves for Summary Judgment, 9/6/98.

The Congress has been actively considering legislation that would affect content on the Internet, as well as the use of blocking software by schools and libraries.

Related Stories on Pending Legislation

Senate Holds Hearing on Internet Indecency, 2/10/98.
Blocking Software Bills Introduced in Congress, 2/12/98.
Two Internet Bills Approved by Senate Committee, 3/12/98.
Gore on Safe Schools Internet Act, 3/24/98.
Istook Internet Bill Requires Blocking Software, 7/2/98.
Blocking Software Bill Passes Senate Committee, 7/22/98.
Senate Passes CDA II and Safe Schools Internet Act, 7/26/98.


Contents of Plaintiffs' (PFAW) Summary Judgment Brief

I. Background.
II. Statement of Undisputed Material Facts.
A. Generally, Library Policies in Loudoun County Seek to Protect Patrons From Censorship and From Breaches of Confidentiality.
B. The Loudoun County Policy on Internet Sexual Harassment Governs Patrons’ Access to Information on Library Internet Terminals.
C. The Policy Does Not Apply a Legal Standard to Govern its Enforcement.
D. The Filtering Software Selected to Implement the Policy Employs a Confidential List of Blocked Sites That is Not Disclosed to Defendant.
E. The Use of Filtering Software Results in Both Overblocking and Underblocking of Information on the Internet.
F. Defendant Declined to Implement Less Restrictive Measures Than the Policy on Internet Sexual Harassment.
III. The Loudoun County Internet Policy is Unconstitutional.
A. The Policy Fails to Meet Strict First Amendment Scrutiny.
B. The Policy Imposes an Unconstitutional Prior Restraint on Speech.
C. Automating Censorship by Mandating the Use of Inherently Imprecise Filtering Software is Plainly Unconstitutional.
D. On its Face the Policy Imposes Overly Broad Restrictions on Access to Information.
1. The Policy Impermissibly Reduces Adult Internet Access to Less Than What is Fit for Children.
2. The Policy’s Purpose to Block Websites Characterized as "Sexual Harassment" Restricts Protected Speech.
E. The Policy is Vague and Vests Unbridled and Arbitrary Discretion on the Library Staff to Restrict Speech in Violation of the First Amendment.
1. The Policy Lacks Substantive and Procedural Standards.
2. The Policy is Designed to Inhibit Library Patrons’ Internet Usage.
F. The Unblocking Policy Reinforces the Policy’s Chilling Effect.