Tech Law Journal

Capitol Dome
News, records, and analysis of legislation, litigation, and regulation affecting the computer, internet, communications and information technology sectors

TLJ Links: Home | Calendar | Subscribe | Back Issues | Reference
Other: Thomas | USC | CFR | FR | FCC | USPTO | CO | NTIA | EDGAR

ACLU's Motion for Summary Judgment.
Re: Mainstream Loudoun v. Bd. of Dir. of Loudoun County Library.
Case No. 97-2049, U.S. District Court, E.D.Va., Alexandria.
Date: September 3, 1998.
Source: ACLU.  This document has been edited for HTML, but not for content.

[caption omitted]


This case involves important constitutional questions about the right to communicate and access constitutionally protected speech in the information age. Last year, in Reno v. ACLU, 117 S. Ct. 2329 (1997), the Supreme Court decided the first case involving First Amendment rights in the online medium, and applied the highest level of First Amendment scrutiny in striking down a criminal statute that banned from the Internet "large amounts of . . . material with serious educational or other value." Id. at 2347. In the present battle to secure the tremendous speech- enhancing and equalizing qualities of the online medium, Plaintiff-Intervenors seek to prevent the government from using blocking software to prevent people from communicating valuable speech to others whose only access to the Internet may be their local public library.

Defendant, the Board of Trustees of the Loudoun County Public Library, passed a "Policy on Internet Sexual Harassment" ("the Policy"), which requires the use of blocking software on all public Internet access terminals at the library. Defendant has implemented the Policy by purchasing and installing a product called X-Stop, which is developed and maintained by a private company in California. Plaintiffs are patrons of the Loudoun County Library who challenge the Policy because it has blocked them and other library patrons from accessing constitutionally protected speech on the Internet. Plaintiff-Intervenors (hereinafter "Intervenors") are eight speakers who publish valuable information on the Internet and who have been blocked by Defendant's use of X-Stop from communicating with library patrons.

In denying Defendant's motion to dismiss this case, Judge Brinkema held that "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. 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." Mainstream Loudoun v. Board of Trustees, 2 F.Supp.2d 783, 795 (1998) ("Loudoun") (quoting Reno v. A.C.L.U., 117 S.Ct. at 2344).

That high standard must now be applied to the essential facts of this case, which are all undisputed. Defendant's Policy on its face forbids adults, under any circumstances, from accessing speech on the Internet that is "harmful to minors." Under the Policy, Defendant allows the developers of X-Stop, using their own criteria, to decide what speech will be blocked in the libraries. There is no judicial determination that the speech is unprotected before Defendant blocks it from library patrons through the use of X-Stop. In fact, by using X-Stop, Defendant blocks speech from reaching library patrons without even knowing what or why the speech is blocked. It is no surprise, then, that Defendant has blocked speech that it admits is clearly protected for adults and for minors. Furthermore, Defendant admits that X-Stop fails to prevent patrons from purposefully accessing speech on the Internet that violates the Policy. Finally, all blocking software, like X-Stop, will inevitably block protected speech and fail to block speech that it is developed to block.

Given these undisputed facts, Defendant's Policy violates the free speech rights of Intervenors and all other speakers who wish to make their speech available to interested patrons in the Loudoun County library. The Policy imposes an unconstitutional prior restraint on fully protected speech, and so presumptively violates the First Amendment. Even if the Policy were not clearly unconstitutional as a prior restraint, it must be struck down because it fails to meet the strict constitutional scrutiny required of content-based regulations of speech. Defendant cannot establish a compelling interest in blocking the valuable speech of Intervenors and many others, though that is clearly their burden. Instead, Defendant now asserts that the Policy is justified because it aims to prevent access to obscenity and child pornography. But Defendant's use of blocking software is far from narrowly tailored to address even that interest, because the Policy on its face blocks adults from receiving speech that is "harmful to minors," and as implemented the Policy has blocked and will continue to block a wide variety of speech on the Internet that is fully protected for adults and for minors. In addition, existing criminal laws are more narrowly tailored and much more effective at dealing with illegal speech, especially since the Policy fails to prevent patrons from accessing such materials.

In sum, Defendant's use of blocking software results in exactly the kind of broad and crude censorship that the First Amendment was designed to prohibit. Because there are no genuine issues of material fact in dispute, Intervenors ask the court to grant summary judgment against Defendant and to enter judgment as a matter of law to Intervenors and Plaintiffs.


A.  Public Libraries are Vital Access Points to the Internet

The Internet is fast becoming the library of the future as more of the world's information is put online. As the Supreme Court noted, "The Web is . . . comparable, from the reader's viewpoint, to a vast library including millions of readily available and indexed publications . . . ." Reno v. A.C.L.U., 117 S.Ct. at 2335. There are currently at least 320 million pages of material available on the World Wide Web. SUF at ¶¶150-152 (Welles Decl.). Librarians were among the first to recognize the tremendous potential of the Internet to expand the scope of information available to users in public libraries. Id. at ¶¶514-515 (Janes Decl.) Loudoun County Library Director Douglas Henderson believes that providing Internet access is crucial because it provides "the equivalent of $1 million or more of information that the library could not afford to buy." Id. at ¶479 (Henderson Decl.).

In the tradition of providing equal access to information, librarians are committed to providing access to the Internet to many people who otherwise have no access to this powerful information resource. Id. at ¶481 (Henderson Dep.); ¶559-562 (Reed Decl.); ¶581 (Murphy Decl.). A recent survey indicated that over 60% of public libraries now provide Internet access. Ex. 36 at 32 (Janes Dep.). For example, the Norfolk Public Library in Norfolk, Virginia serves a population that is nearly 50% African-American, the majority of whom live at poverty or near poverty levels. SUF at ¶560-562 (Reed Decl.). The Norfolk Public Library has developed computer labs with Internet access to assist young people living in poverty who are "at risk" for educational achievement in the 21st century. Id. at ¶562 (Reed Decl.).

In the strong tradition of promoting intellectual freedom and equal access to information, the American Library Association passed a policy opposing the mandatory use of blocking software in public libraries. Ex. 38 (ALA Resolution).

B.  Intervenors Publish Valuable Speech on the Internet

Intervenors publish valuable speech on the Internet, and want the widest possible audience for their speech. They want to be able to communicate their free information to interested people who may not have Internet access at home or at work, including people who are patrons of the Loudoun County Library. SUF at §I.B. (Int. Decls.). Intervenors include:

  • The Safer Sex Page, owned and operated by Christopher Filkins, which is a World Wide Web site on the Internet that contains information and educational materials about safer sex, including articles about how to protect against HIV/AIDS. SUF at ¶3 (Filkins Decl.).
  • Banned Books On-Line, owned and operated by John Ockerbloom, which is a site on the World Wide Web that provides links to the full text of many books that have been the object of censorship or censorship attempts throughout history, including James Joyce's Ulysses. Id. at ¶¶18, 23 (Ockerbloom Decl.).
  • American Association of University Women Maryland (AAUW Maryland), an organizational unit of the national American Association of University Women, which promotes equity and education for all women and girls, and has a site on the World Wide Web which publicizes its activities. Id. at ¶¶38-41 (Hapchuk Decl.).
  • Rob Morse, a daily columnist for The San Francisco Examiner, whose columns are also published on the World Wide Web. Id. at ¶¶53-56 (Morse Decl.).
  • Books for Gay and Lesbian Teens/Youth Page, owned and operated by Jeremy Meyers, which is a list published on the World Wide Web of books that may be of interest to gay and lesbian youth. Id. at ¶¶64-67 (Meyers Decl.).
  • Sergio Arau, an acclaimed Mexican painter, composer, and musician whose paintings are available for free viewing on the World Wide Web. Id. at ¶¶84-87 (Arau Decl.).
  • Renaissance Transgender Association ("Renaissance"), a non-profit corporation which provides public education about transgender issues, and support to transgendered individuals, and has a site on the World Wide Web which publicizes its activities. Id. at ¶¶100-101 (Gardner Decl.).
  • The Ethical Spectacle, a corporation that publishes a free online magazine on the World Wide Web called The Ethical Spectacle, which examines controversial issues of ethics, law and politics in America. Id. at ¶¶114-120 (Wallace Decl.).

Intervenors all provide speech that they believe to be constitutionally protected; none of the intervenors provide speech that they believe is obscene or otherwise illegal. Id. at ¶¶10, 25-26, 44, 57, 73-74, 92, 109, 125 ( Int. Decls.).

C.  Defendant's "Policy on Internet Sexual Harassment" Limits the Online Speech Available to Library Patrons

In preparing to offer Internet access at the Loudoun County Libraries, Library Director Douglas Henderson drafted a proposed Internet use policy in the spring of 1997. SUF at ¶¶170- 171 (Henderson Dep.). Mr. Henderson's draft policy did not require the use of blocking software, and he thought the policy was adequate to deal with Internet access in a library. SUF at ¶187 (Henderson Dep.). The Defendant Board of Trustees ultimately rejected Mr. Henderson's recommendation and instead passed the "Policy on Internet Sexual Harassment" ("the Policy"), which requires that "site-blocking software . . . will be installed on all computers . . . to prevent Internet sexual harassment." Ex. 7 (Policy). The Policy provides that the blocking software will be used "to the extent technically feasible . . . [to] a. Block child pornography and obscene material (hard core pornography); b. Block material deemed Harmful to Juveniles under applicable Virginia statutes and legal precedents (soft core pornography)." Id. The Policy states that library patrons who attempt to access any of the prohibited material will be told they are violating the Policy, and "will be told to leave the library. If they refuse, they will be considered in trespass, and police may be called to remove them." Id.

No patron, adult or minor, is allowed to access the Internet at any time without blocking software. Id. In addition, anyone under 18 must obtain permission from their parents before accessing the Internet at the library. Id. at §III.A.; Ex. 7 (Policy). Library staff, however, all have unrestricted access to the Internet on at least one computer. SUF at ¶189 (Henderson Dep.).

Library Director Douglas Henderson and the System-Wide Service Manager Cindy Timmerman are opposed to the Policy. Id. at ¶188 (Henderson Dep.) (Timmerman Dep.).

The Policy itself does not specify the blocking software to be used. Id. at ¶177 (Henderson Dep.); Ex. 7 (Policy). Mr. Henderson chose the X-Stop product without consulting the Board, and the library staff could decide to change to another blocking software product at any time without Board approval. SUF at ¶177 (Henderson Dep.).

D.  Blocking Software Inevitably Blocks Protected Speech and Fails to Block Speech that It Is Developed to Block

With current technology it is not possible to design blocking software that blocks only material that is outside the protection of the First Amendment. SUF at §V. (Welles Decl.); ¶266 (Henderson Dep.) (Timmerman Dep.). Software will, of necessity, both overblock (block protected speech) and underblock (fail to block speech that its is developed to block). Id. The huge size of the Web makes it impossible for a human being to review all sites or to keep up with the exponential number of new sites that come online and change daily. Thus, developers of blocking software must rely on automated search tools to identify sites for the product to block. These tools cannot block according to subject matter, and cannot evaluate pictures. They can only identify sites by searching for a particular word or string of words. SUF at §II.A., ¶492 (Welles Decl.). As a result, these tools inevitably identify sites that do not contain the subject matter the producers of the software want to block. Id. at ¶492 (Welles Decl.). As computer expert Michael Welles explains, "Not a computer exists that could understand and flag the fundamental differences between the phrases 'study in Jewish sexuality' and (for example) 'study live Jewish sex!,' while the average human would conclude that the former is more likely to include educational speech about sex and the latter to include 'pornography.'" Id.

In addition, automated search tools are unable to locate a large number of web pages, so blocking software will inevitably fail to block all material that the product is intended to block. SUF at §II.B. and ¶¶486-488 (Welles Decl.). Because of the dynamic nature of web content and the growth rate of the Web, any list of sites identified by an automated search tool is also out of date even before it is created. Thus, the technological and human limitations of blocking software will always cause it to overblock and underblock. Id. at ¶¶484, 501-502 (Welles Decl.). There is no indication that these limitations will change in the near future. SUF at §V. (Welles Decl.).

E.  Defendant Blocks Protected Speech Through Its Use of X-Stop

The undisputed limitations of blocking software are aptly illustrated by X-Stop, the blocking software chosen by Library Director Douglas Henderson after he and his staff evaluated six blocking software products. SUF at ¶280 (Henderson Dep.). X-Stop is produced by Log-On Data Corporation, a California company. Id. at ¶204 (Bradshaw Dep.). Log-On uses an automated method, called the MudCrawler, to select "suspect" web sites for possible inclusion on the X-Stop list of blocked web sites. When a user accesses the Internet with X-Stop running, the software prevents him or her from accessing any web site that is on the blocked site list. Instead of displaying the web site, X-Stop flashes a message on the screen that says "X-Stop: Violation: Access to this site has been blocked by X-Stop" SUF at ¶413 (Sehgal Decl.).

X-Stop generally states that the purpose of its software is to block access to "genitalia, penetration," and "xxx material." Id. at ¶¶210, 215 (Bradshaw Dep.). The President of X-Stop stated that the product would not block all images or descriptions of "genitalia" or "penetration," but was unable to provide any definition of the material that the product is intended to block. Id. at ¶¶208, 211-216 (Bradshaw Dep.). The product does not purport to block according to legal standards. Id. at ¶217 (Bradshaw Dep.). In order to avoid the inevitable overblocking that would result from blocking every site that the MudCrawler identifies, X-Stop claims that it has an employee review every site before it is added to the list of blocked sites. It is undisputed, however, that in addition to blocking all of Intervenors' speech, X-Stop has blocked sites such as the Dachshund Information web site, the web site for the Center for Reproductive Law and Policy, and a fantasy football web site; none of these sites contain the categories of speech that X-Stop intends to block. Id. at ¶¶206-207; §IV.A.

The MudCrawler, the formula it uses to locate sites, and the list of blocked sites are treated by Log-On as trade secrets. Id. at ¶219 (Bradshaw Dep). Thus, Defendant does not know in advance, and has no way of learning, the full list of sites X-Stop will block. Id. at ¶¶219, 222- 225 (e.g. Bradshaw Dep.).

Log-On adds new web sites to its blocked site list and makes these updates available to its customers, including the Loudoun County Library, six days a week. These updates generally add hundreds of newly blocked websites to the X-Stop database. Id. at ¶223 (Bradshaw Dep.). When the library logs onto the Internet from each Internet access terminal every morning, the updated X-Stop list of blocked sites is supposed to automatically download onto each library computer terminal. Id. at ¶¶222-223 (e.g. Bradshaw Dep.).

Through its use of X-Stop, Defendant has blocked literally hundreds of sites that do not violate the Policy and that clearly contain constitutionally protected speech. Id. at §IV.A. When it evaluated X-Stop for use under the Policy, the Library staff counted how many web sites were blocked in searches conducted in response to a list of questions, and how many of the blocked sites contained "protected speech." Id. at §IV.A.3.; see also Ex. 18 (Def. Response to Pl. First Interrogs.). Of the 97 web sites found to be blocked in this test, 65 sites were considered to constitute protected speech. These sites included The National Journal of Sexual Orientation Law, the AIDS Quilt Info & Links, the Heritage Foundation, Fairness and Accuracy in Reporting, the Quaker site, Community United Against Violence, a WICCA web site, and the Center for Reproductive Law and Policy. Id. In addition, patrons have submitted at least eleven "Requests to Review Blocked Site" forms to the library in order to access speech including the web site of the Yale Biology Graduate Program, a Beanie Babies web page, and a site that provides tax forms for the state of Kentucky. SUF at §IV.A.4.

Defendant has blocked all of the Intervenor web sites through its use of X-Stop.2 Id. at §IV.A.6. In addition, Intervenors have found many other sites that contain clearly protected speech that Defendant has blocked. These sites include the speech of Glide Memorial Methodist Church; the entire web site of the San Francisco Chronicle; two fan pages about the television star Ellen DeGeneres; a site about Gay Mardigras; a women's humor site called "Heartless;" a bibliography of psychiatry, madness and insanity; the Wesleyan University Phillippines Mass Communication Society; and several personal home pages, including the Barker Family home page and a personal page containing photos of National Parks. Id. at IV.A.7. (Sehgal Decl.). Plaintiffs have been blocked from accessing speech on yet another long list of sites that contain clearly protected speech. Id. at §IV.A.5.

Although Defendant blocks Intervenors' speech, it does not block a variety of web sites that express viewpoints contrary to the viewpoints expressed by Intervenors. For example, defendants do not block sites opposing homosexuality and transgender issues, and promoting abstinence rather than safer sex practices. Id. at §IV.A.9. (Sehgal Decl.).

F.  Because of Overblocking, the Library Director Implemented a "Request to Review Blocked Site" Procedure

Because Library Director Douglas Henderson knew that overblocking would occur, he implemented a procedure that allows a patron to request access to a site that is improperly blocked by X-Stop. The patron can only obtain access to a blocked site by filling out a form made available at the library, called the "Request to Review Blocked Site" form, with his or her name, library bar code number and telephone number, and the URL of the blocked site. The form requires patrons to provide a reason for wanting access to the blocked site. SUF at §III.D.; Ex. 21 (Request to Review Blocked Site Forms). Loudoun County librarians who receive a patron request to unblock a site may first review the site using their computer terminals, which do not have blocking software. SUF at ¶243 (Henderson Dep.). They then forward the unblocking request to Doug Henderson or Cindy Timmerman, who decide whether to unblock the site. Id. at ¶229 (e.g. Henderson Dep.).

Defendant has provided no guidelines about the time in which a request must be decided, whether a decision can be appealed, or even whether the patron must be informed of the decision made by the library. SUF at §III.C.2., III.D. Eleven patrons have filled out the form. Ex. 22 (Patron requests to unblock sites).

G.  Intervenors Have No Feasible Way to Ensure that their Sites Are Not Blocked

Intervenors have no feasible way to fill out the "Request to Unblock" form because they are not Loudoun County residents. SUF at ¶¶12-17, 31-36, 47-52, 59-63, 78-83, 94-99, 113-118, 127-133 (Int. Decls.). Defendant has no other procedure by which any person can request that a site be unblocked because it does not violate the Policy. Intervenors do not have the time or money required to monitor constantly the blocking or unblocking of their sites at the library. Id. In addition, Intervenors fear that patrons who want access to their sites will be deterred from filling out the form. Id. Finally, if libraries are allowed to use blocking software, Intervenors will be unable to monitor the thousands of libraries around the country to determine whether their speech is being blocked from interested patrons.

H.  X-Stop Fails to Block Speech that Violates the Policy

X-Stop also fails to block material that violates the Policy. SUF at §IV.B. It is relatively simple for a person deliberately seeking material that violates the Policy to locate such material, even when X-Stop is running. Id. at ¶476 (Sehgal Decl.).

I.  There are Many Less Restrictive and More Effective Ways to Assist Library Patrons in Avoiding Unwanted Content

Many other libraries, in Virginia and elsewhere, offer access to the Internet without blocking software. SUF at §VI.B. (Libr. Decls.); Ex. 39 (VLA Internet Policy Responses). These libraries have developed other means to minimize Internet access concerns. Graduate schools of Library Science teach courses to prepare librarians to meet the challenges and opportunities of the information age. Id. at ¶¶522-524 (Janes Decl.). Libraries now offer Internet classes to teach patrons online search techniques that will maximize access to valuable resources and minimize exposure to unwanted content. Id. at ¶¶550-552 (Janes Decl.); ¶566 (Reed Decl.); ¶595 (Hehman Decl.). Libraries have also developed educational brochures and have provided links to sites about online safety. Id. at ¶552 (Janes Decl.). Many libraries, including Loudoun, develop lists of recommended online resources that they have reviewed and evaluated, and which are often available as links on library home pages. Id. at ¶547 (Janes Decl.); ¶565 (Reed Decl.). To provide guidance about authorized and unauthorized computer use, and to inform patrons that some content on the Internet may be illegal, many libraries have developed content-neutral Internet Use Policies. Id. at ¶568, 578, 588 (Libr. Decls.). Finally, some libraries have offered blocking software as a voluntary option for patrons who wish to use it. Id. at ¶578 (Murphy Decl.).


"Under Rule 56(c), summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Cray Communications v. Novatel Computer Systems, Inc., 33 F.3d 390, 393 (4th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-3 (1986)). Under this standard, summary judgment for the plaintiffs is clearly warranted.

A.  The Policy Imposes an Unconstitutional Prior Restraint on Protected Speech

1. The Policy Is a Classic Prior Restraint

As this court has held, "[b]y purchasing Internet access, each Loudoun library has made all Internet publications instantly accessible to its patrons." Loudoun, 2 F.Supp.2d at 793. By requiring the use of blocking software on all of its Internet access terminals, Defendant stifles communication that would otherwise occur between willing speakers and willing listeners. Defendant delegates the decision about whose speech to block to a private third party that will not even reveal to Defendant what speech it is blocking. To top it all off, Defendant fails to provide any administrative or judicial review before blocking the speech.

Defendant's censorship system is a classic prior restraint which presumptively violates the First Amendment. Thus, in passing the Policy, Defendant appears to have forgotten the mission of public libraries as well as "the essential purpose and history of the First Amendment." New York Times Co. v. U.S., 403 U.S. 713, 715 (1971) (Black, J., concurring). As the Supreme Court held over fifty years ago, and has confirmed on numerous occasions, "the chief purpose of the [First Amendment] is to prevent previous restraints upon publication." Near v. Minnesota, 283 U.S. 697, 713 (1931) (striking down statute that permitted a perpetual injunction against "a malicious, scandalous and defamatory newspaper, magazine or other periodical").

It is particularly antithetical to the values underlying the First Amendment for the government to impose a prior restraint on material at a public library, which is "the quintessential locus for the receipt of information." Kreimer v. Bureau of Police for Morristown, 958 F.2d 1242, 1255 (3d. Cir. 1992); see also SUF at ¶¶516-517 (Janes Decl.); ¶559 (Reed Decl.); ¶586 (Hehman Decl.). Yet the use of blocking software in a public library is a blatant form of prior restraint. Blocking software functions literally as an automated censor, blocking speech in advance of any judicial determination that it is unprotected. It arbitrarily and irrationally blocks speech that is fully protected, by speakers such as a high school student who posts an online book list for gay and lesbian youth, the Mexican painter Sergio Arau, the American Association of Women Maryland, a columnist with the San Francisco Examiner, and Glide Memorial Methodist Church -- speech that is not even close to the line between protected and unprotected speech. See SUF at ¶¶401, 402, 403, 408, 411 (Sehgal Decl.). Despite the long tradition of libraries offering equal access to information resources, Defendant has prevented citizens who have no other access to the Internet from using this valuable speech. In the Supreme Court's words, "This is . . . the essence of censorship." Near v. Minnesota, 283 U.S. 697, 713 (1963).

A postmaster who opened all letters and refused to deliver letters with the word "sex" in them would clearly be violating the First Amendment's rule against prior restraints. See Blount v. Rizzi, 400 U.S. 410 (1971) (striking down statute that allowed Postmaster General to halt use of mail for commerce in allegedly obscene materials). As the Supreme Court has explained, "The 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." Blount, 400 U.S. at 416 (citations omitted). Similarly, "Having chosen to provide [Internet] access, the Library Board may not thereafter selectively restrict certain categories of Internet speech because it disfavors their content." Loudoun, 2 F.Supp.2d at 795-796.

"[A]ny system of prior restraints of expression comes to [the court] bearing a heavy presumption against its constitutional validity." Bantam Books v. Sullivan, 372 U.S. 58, 70 (1963) (morality commission, whose purpose was to recommend prosecution of obscenity, imposed unconstitutional prior restraint by sending notices to booksellers that certain books were objectionable). The Supreme Court has warned that "[e]ven where questions of allegedly urgent national security, or competing constitutional interests, are concerned, we have imposed this 'most extraordinary remed[y] only where the evil that would result from the reportage is both great and certain and cannot be militated by less intrusive measures.'" CBS Inc. v. Davis, 510 U.S.1315, 1317 (citing Bantam to stay injunction by South Dakota state court that would have prevented CBS from airing investigative news footage on meat packing industry).

In this case, Defendant has no evidence that there is any "evil" needing to be fixed that is not addressed by more effective and less restrictive means.3 The Policy restrains a great quantity of speech that is fully protected by the Constitution. SUF at §IV.A. Furthermore, Defendant's Policy fails to prevent determined users from accessing speech that violates the Policy. Id. at §IV.B. Finally, Defendant has allowed a third party thousands of miles away to determine what speech will be blocked from library patrons in Loudoun County without even informing Defendant, let alone the speakers who are blocked. Id. at §III.C.2. This system comes nowhere close to the judicial review that is required when First Amendment rights are at stake. Freedman v. Maryland, 380 U.S. 51 (1965). Given these undisputed facts, there is no way that Defendant can overcome the presumption that the Policy is an unconstitutional prior restraint.

Even assuming that blocking software were available that blocked only obscenity and child pornography -- and Defendant admits there is none, SUF at ¶266 (Henderson Dep.) (Timmerman Dep.); §V. (Welles Decl.) -- the use of blocking software by a public institution is still undoubtedly an unconstitutional prior restraint. As the Supreme Court reminds us, "a free society prefers to punish those few who abuse rights of speech after they break the law than to throttle them and all others beforehand." Southeastern Promotions v. Conrad, 420 U.S. 546, 559 (1975) (municipal board's denial of permission for performance of the rock musical "Hair" at a city auditorium, because of reports that the musical was "obscene," was an unconstitutional prior restraint). Recognizing this cardinal First Amendment principal, the Fourth Circuit in Drive In Theatres, Inc. v. Huskey denounced as an "unconstitutional prior administrative restraint" a sheriff's practice of seizing and terminating exhibition of movies that were rated "R" by the Motion Picture Association: "Apparently the sheriff undertook the censorship activity in the belief that obscene movies are without constitutional protection and that he was himself authorized by law to make the determination of obscenity in any manner he saw fit, including reliance upon ratings of the motion picture industry. He is mistaken." 435 F.2d 228, 230 (4th Cir. 1970). If a local sheriff cannot decide for himself what is legally obscene, a local library board certainly cannot constitutionally allow a private company to make secret decisions about what Internet sites a library patron may view. By doing so, Defendant "eliminate[s] the safeguards of the criminal process. Criminal sanctions may be applied only after a determination of obscenity has been made in a criminal trial hedged about with the procedural safeguards of the criminal process." Bantam Books v. Sullivan, 372 U.S. at 69.4

There is no question that X-Stop's "decisions to list particular publications as objectionable do not follow judicial determinations that such publications may lawfully be banned." Bantam Books, 372 U.S. at 70. As the Supreme Court has said, unlike a criminal penalty, "A prior restraint, . . . has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint ?freezes' it at least for the time." CBS Inc. v. Davis, 510 U.S. at 1317. Defendant unquestionably "freezes" speech that willing speakers could otherwise communicate to willing listeners in Loudoun County libraries.

2.  The "Request to Review Blocked Site" Form Does Not Save the Policy, But Merely Exacerbates its Unconstitutionality

Defendant's practice of allowing patrons to submit requests to unblock sites they wish to access does nothing to overcome the policy's unconstitutionality. Most importantly, the Policy on its face forbids adult patrons from accessing or asking the library to unblock a site with speech that is "harmful to minors," even though such speech is clearly protected for adults. Ex. 7 (Policy).

Although the Policy itself contains no procedure for appeal of any blocked site, regardless of the content, the Library Director knew that overblocking would occur and implemented a procedure whereby patrons can fill out a "Request to Review Blocked Site" form. SUF at §III.D. (Henderson Dep.); Ex. 21 (Request to Review Blocked Site Form). The Director's attempt to remedy the inevitable blocking of valuable speech under the Policy is valiant, but is "radically deficient" under the Constitution. Bantam Books, 372 U.S. at 71. Requiring patrons to ask for permission from a government agency before reading words or viewing images on a computer screen reverses the First Amendment presumption that speech is free. In Lamont v. Postmaster General, 381 U.S. 301, 381 (1965), the Supreme Court held unconstitutional a statute that directed the Postmaster General not to deliver communist propaganda to postal patrons unless they first returned to the Post Office a card bearing their names and addresses and specifically requesting that such materials be sent to them, id. at 302-04, "because it require[d] an official act [returning the reply card] as a limitation on the unfettered exercise of the addressees' First Amendment rights." Id. at 305. As this court has held, here, as in Lamont, "the unblocking policy forces adult patrons to petition the Government for access to otherwise protected speech." Loudoun, 2 F.Supp.2d at 797. The Policy is "more chilling" than the statute 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." Id. at 797.

Such a system of prior restraint is never tolerated unless "it operate[s] under judicial superintendence and assure[s] an almost immediate judicial determination of the validity of the restraint." Bantam Books, 372 U.S. at 70; see also Freedman v. Maryland, 380 U.S. at 58-59 (1965); Drive In Theatres, Inc. v. Huskey, 435 F.2d 228, 230 (4th Cir. 1970). Beyond the vague terms of the Policy itself, librarians have been given no instructions or criteria on how to determine whether a site should be unblocked. SUF at §III.C.2. Library Director Douglas Henderson stated that it would be "extremely difficult" under the Policy to determine whether to unblock a particular site, and it would involve "very subjective" standards. The unblocking request form thus lacks even the minimally necessary procedural safeguards, including any "narrow, objective and definite standards" by which the request will be granted or denied. Shuttlesworth v. Birmingham, 394 U.S. 146 , 150-51 (1960) (striking down standardless parade permit requirement).5

The procedure also fails to provide any guarantees as to how the request will be considered, within what time frame, subject to what appeal process, or pursuant to any other minimal procedural safeguards. See Freedman at 58-59; Blount v. Rizzi, 400 U.S. 410, 417 (1971). Only about eleven forms have been submitted. Ex. 22 (Patron requests to review blocked site forms). There is no specific time period in which the request must be decided upon, and it has taken anywhere from one day to two months for the sites to get unblocked. Id. There is not even a system for informing patrons whether or not their request has been granted. SUF at ¶261 (Timmerman Dep.).

As the Supreme Court has consistently found, such standardless licensing schemes inevitably impose delays, invite arbitrary and discriminatory enforcement, and otherwise chill the free exercise of speech. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 758- 759 (1988); Forsyth County v. The Nationalist, 505 U.S. 123, 131 (1992). In this case, patrons are likely to be deterred from filling out the form, for several reasons. First, the system makes it difficult if not impossible for a patron to know whether he or she wants access to a blocked site. SUF at ¶33 (Ockerbloom Decl.). For example, a patron seeking information about a particular book that has been banned may conduct a search that reveals a link to the web site of Intervenor Banned Books Online. The site description provided by the search engine may indicate that the site is relevant to the patron's research, but the patron has no way of judging the value of the site to determine whether he or she wants to access it because X-Stop has blocked the patron from viewing the site. In addition, patrons interested in Intervenors' speech may be deterred from filling out the "Request to Review Blocked Site" form because the sites contain sensitive, controversial or personal information, or because of the stigma of filling out a form that seeks access to a site that violates the Policy. Id. at ¶¶14, 33, 49, 80, 96, 115, 129 (Int. Decls.). They may also be inhibited from having to justify why they need access to the site. Finally, they may not bother with the form because they need the information immediately. Id.

Intervenors themselves are unable to take advantage even of the deficient unblocking procedure available. Because intervenors -- like millions of other online speakers -- have no feasible way to determine whether their speech is blocked at any given time from reaching patrons in Loudoun County, they have no feasible way to challenge the blocking of their sites.6 Intervenors all reside in other states, and even if they traveled to Virginia they could not get a library card to enable them to access the Internet at the library. Id. at ¶¶ 15, 34, 50, 60, 81, 97, 116, 130 (Int. Decls.) In addition, if all libraries are allowed to use blocking software, Intervenors would be faced with the impossible task of monitoring thousands of libraries around the country to determine whether their speech is being blocked from interested patrons. Id. at ¶¶16, 35, 51, 62, 82, 98, 117, 131 (Int. Decls.).

B.  The Policy is Far From the Least Restrictive Means of Establishing Any Compelling Government Interest

1.  On its Face and As Applied, The Policy Bans Adults from Viewing Speech that is Constitutionally Protected

Even if not clearly invalid as a prior restraint, the Policy must fall because it fails to meet the strict constitutional scrutiny required of content-based regulations of speech. Reno v. A.C.L.U., 117 S. Ct. at 2343-48; Simon & Schuster, Inc. v. N.Y. State Crime Victims Bd., 502 U.S. 105, 118 (1991). Like the Communications Decency Act struck down by the Supreme Court in Reno v. A.C.L.U., 117 S. Ct. at 2329, the Policy is constitutionally fatal because it "limit[s] the speech available to adults to what is fit for 'juveniles.'" Loudoun, 2 F.Supp. 2d at 797 (citing Reno). Unlike the CDA, the Policy does not even purport to restrict materials only to minors, but on its face "suppresse[s] speech adults [a]re constitutionally entitled to send and receive." Loudoun, 2 F.Supp.2d at 796; see also Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983); Denver Area Telecomm. Cons. v. FCC, 116 S.Ct. 2374, 2393 (1995); Butler v. Michigan, 352 U.S. 380 (1957).

In addition, Defendant admits that the Policy has caused Intervenors' and other protected sites to be blocked from reaching patrons in the library through the use of X-Stop. SUF at §IV.A.1. Because of the technological limitations of blocking software, Defendant has also admitted that the use of blocking software will always cause protected speech to be blocked. Id. at §§268 (Burt Dep.). Thus, Defendant admits that the Policy has blocked, and will continue to block, willing speakers from communicating protected speech to interested library patrons.7 Under Defendant's own admissions, then, the Policy's content-based restriction on speech presumptively violates the First Amendment and, as this court has observed, can be justified only "by a compelling governmental interest [that is] . . . narrowly tailored to achieve that end." Loudoun, 2 F.Supp 2d. at 795.

2.  The Government Has No Compelling Interest8

The Supreme Court in Reno found that the "odds are slim" that an Internet user will come across sexually explicit material by accident. Reno v. A.C.L.U, 117 S. Ct. at 2336. Sexually explicit content is usually preceded by warnings as to content. Id. Defendant conducted no investigations to determine whether offering full access to the Internet led to any significant problems in libraries. SUF at ¶198 (Czaplewski Dep.). The library director himself conducted an informal survey of other libraries and learned of no significant problems of any kind. Id. at ¶190 (Henderson Dep.). The vast majority of Virginia libraries that offer Internet access do not require mandatory filtering. Ex. 39 (VLA Internet Policy Responses). Not surprisingly, then, Defendant's purported interest in a system that overblocks and underblocks has been less than pellucid.

a.  The Policy Cannot Be Justified By An Interest In Preventing "Internet Sexual Harassment"

The Policy itself is entitled the "Policy on Internet Sexual Harassment" and states that it "seeks to prevent Internet sexual harassment." Ex. 7 (Policy). This rationale for the Policy has been largely -- and wisely considering its weakness -- ignored by Defendant since this lawsuit was filed , though the Board Members who passed the Policy clearly saw it as a primary purpose. Id. First, Defendant failed to provide any definition of "Internet sexual harassment" in the Policy, and there is confusion among Board Members and library staff alike about what precisely it prohibits. SUF at §III.C.2.9 It is unclear whether Defendant's primary concern is harassment of patrons, or harassment of library employees.

Regardless, Defendant's interest in preventing sexual harassment is not a compelling justification for the Policy because it both underinclusive and overinclusive. See Carey v. Brown, 447 U.S. 455, 465 (1980) ("The apparent overinclusiveness and underinclusiveness of the statute's restriction would seem largely to undermine [the] claim that the prohibition . . . can be justified by reference to the State's interest."); Urofsky v. Allen, 995 F.Supp 634, 139 (1998). The Policy is clearly overinclusive because it blocks access to a variety of materials which Defendant admits could under no stretch of the imagination be considered "sexually harassing" to women, including the speech of the American Association of University Women Maryland, Women's Net, the Quakers, and fans of the television star Ellen Degeneres. SUF at ¶¶ 361, 377, 403, 417. If Defendant's interest is in protecting patrons from harassment, that interest is more narrowly and effectively addressed by content-neutral policies, long enforced by libraries, that prohibit any harassing or disruptive behavior in the library. Id. at ¶571 (Reed Decl.); ¶592 (Hehman Decl.).

To the extent the Policy seeks to prevent sexual harassment of library employees, it is also fatally underinclusive. The library staff themselves do not even have blocking software installed on their computers.(10) Id. at ¶186 (Henderson Dep.). In addition, the Policy requires library staff to monitor Internet access and to review blocked sites that patrons have asked to access. The Policy is also underinclusive because it "fails to address racially, ethnically or religiously offensive material, which would also give rise to [work discrimination] claims." Urofsky v. Allen, 995 F.Supp. at 640. In any event, Defendant's interest in preventing a sexually hostile work environment is already addressed by much less intrusive (and more narrowly tailored) existing laws addressing sexual hostility. See, e.g., 42 U.S.C. §2000e-2(a)(1) (federal statute prohibiting employers from discriminating on the basis of sex which has been used to sustain sexually hostile work environment claims); 29 C.F.R. §1604.11(a) (federal regulation prohibiting creating a hostile work environment through unwelcome sexual conduct).

b.  The Policy is Ineffective and Far From Narrowly Tailored To Prevent Access to Illegal Materials

Finally, Defendant tries to justify the Policy by asserting a need to prevent access to obscene materials and child pornography. Defs. Answer to Pls' Complaint, Affirmative Defenses ¶5. But as this court has noted, it is not enough for the Board to justify the Policy by reference to criminal laws governing obscene or child pornographic material if the Policy overinclusively blocks access to other materials. Loudoun, 2 F.Supp.2d at 796; see alsoBrandenburg v. Ohio, 395 U.S. 444, 447 (1969) (the government may not restrict constitutionally protected speech on the mere speculation that such censorship may help prevent lawless conduct). And it is now undisputed that the Policy clearly blocks access to many non-obscene and non-pornographic materials. SUF at §IV.A.

Defendant fails to clarify whether it is concerned primarily with deliberate or inadvertent access of obscenity and child pornography, but neither concern justifies the Policy. First, the Policy is woefully ineffective at preventing deliberate access to sexually explicit speech, because blocking software fails to block many sites that contain such speech.11 SUF at §IV.B. To the extent that sexually explicit material is available on the Internet, a determined user will have no problem finding it even with the blocking software running. Id. at ¶¶476-477 (Sehgal Decl.). As this court noted, "even when government regulation of content is undertaken for a legitimate purpose . . . the means it uses must be a ?reasonable response to the threat' which will alleviate the harm 'in a direct and material way.'" Loudoun v, 2 F.Supp.2d at 797 (quoting Turner Broadcasting v. FCC, 512 U.S. 622, 624 (1994).

Defendant also fails to explain how the Policy further deters conduct which is already illegal under federal and Virginia law. See Reno v. A.C.L.U., 117 S. Ct. at 2347 n.44 ("Transmitting obscenity and child pornography, whether via the Internet or other means, is already illegal under federal law for both adults and juveniles."); Va. Code Ann. §§18.2-372 et seq. Under the Board's rationale, the Policy's noncriminal ban will somehow deter activity which criminal fines and prison sentences cannot. There is no evidence that anyone has ever attempted to access illegal materials in a Loudoun County library. Even if there were such a problem, existing obscenity and child pornography laws are much more narrowly tailored than the Policy at deterring would-be intentional violators, and these laws contain the procedural protections that the Policy lacks. Libraries can also assist by advising patrons in their Internet Use Policies that some content may be illegal, and can cooperate with law enforcement if a patron violates the law. SUF at ¶554 (Janes Decl.); ¶¶568, 579 (Libr. Decls.).

Defendant also lacks any evidence that patrons may inadvertently stumble across illegal materials. As noted, almost all sexually explicit content is preceded by warnings as to content, and is unlikely to be accessed accidentally. Reno v. A.C.L.U. at 2336. Finally, there are many much less restrictive and more effective ways to assist patrons in avoiding unwanted content of all kinds, including content that could be illegal. See section II.B.3. infra.

3.  There Are Much More Effective and Less Restrictive Alternatives Available to Help Library Patrons Avoid Unwanted Content

Librarians, who have advanced degrees in library science, are already applying their skills to help library patrons maximize access to materials they want or need, and minimize access to unwanted materials (including materials that some may find offensive). SUF at ¶¶550-552 (Janes Decl.). Graduate schools of Library Science prepare librarians to meet the challenges and opportunities of the electronic age, including courses in how to develop library web pages and how to assist patrons in an electronic environment. Id. at ¶¶522-524. These methods, which are devised and implemented by trained librarians, are both more effective and less restrictive than the Policy at preventing inadvertent access to unwanted materials. Libraries can offer Internet classes and one-on-one instruction to teach patrons online search techniques to maximize targeted results and minimize exposure to unwanted content. Id. at ¶¶550-552 (Janes Decl.); ¶566 (Reed Decl.); ¶595 (Hehman Decl.). Libraries can also provide patrons with educational brochures or links to sites about online safety. Id. at ¶552 (Janes Decl.). Librarians can also develop lists of recommended online resources that they have reviewed and evaluated. Many library home pages now offer extensive lists of links by subject matter (akin to an online card catalog) to assist patrons in finding Internet sites that meet their interests. Id. at ¶547 (Janes Decl.); ¶565 (Reed Decl.). There are also several collections of links on the Internet of sites pre- selected by librarians. For example, the Internet Public Library has numerous and continually updated links on a variety of subjects, including special links to resources for youth and teens. SUF at 547 (Janes Decl.). The American Library Association has developed a list of 700 great sites for kids. Id. at ¶566 (Reed Decl.).

In addition, libraries can develop content-neutral Internet Use Policies to educate patrons and inform them of rules and guidelines for Internet use. Internet use policies may explain the diversity of information on the Internet, and point patrons to the library-approved resources on the library Web page. Id. at ¶¶553-554 (Janes Decl.); ¶¶568, 578, 588 (Libr. Decls.) The policy may discuss the decentralized, uncontrolled nature of the Internet and warn patrons that they may encounter material they find objectionable. The policy may explain that beyond the library Web page, the library does not monitor or control the information on the Internet, and that library patrons use it at their own risk. Id. The policy may also set rules for Internet use, including rules that prevent invading the privacy of others, and prevent use of the Internet for any illegal activity, including violation of copyright, obscenity or child pornography laws. Id. at ¶554. The policy may impose sanctions for violations, including losing Internet access privileges, and reporting illegal conduct to law enforcement authorities. Id. at ¶¶568, 578, 588 (Libr. Decls.).

Finally, libraries can make blocking software available as a voluntary option for patrons who wish for themselves or their children to use it. For example, the Prince William County Library has software on computers in the children's section that provides access only to pre- selected web sites. In Prince William county, librarians do not prevent minors from checking out books in the adult section of the library, and will not restrict any patron, adult or minor, from using the unrestricted Internet terminals in the adult section. Just as parents are responsible for supervising their children's choice of other reading materials, parents are responsible for deciding whether to set rules regarding their children's Internet access. Id. at ¶¶577-78 (Murphy Decl.).

Given all of the useful practices librarians have developed so far, and their expertise in dealing with information issues, allowing librarians to assist patrons in avoiding unwanted content is both more effective and less restrictive than allowing non-librarian employees of a California corporation to automatically block materials from reaching patrons in the library "based on secret criteria not disclosed even to defendants," Loudoun, 2 F.Supp.2d at 796.


For the foregoing reasons, Plaintiff-Intervenors respectfully ask the court to grant their Motion for Summary Judgment.

Respectfully submitted,

Mary Bauer
6 North 6th Street, Suite 400
Richmond, Virginia 23219-2419

Ann Beeson
Christopher A. Hansen
125 Broad Street
New York, New York 10004

Attorneys for Plaintiffs-Intervenors

Dated: September 3, 1998


1This section summarizes Intervenors' Statement of Undisputed Facts ("SUF"), which is filed separately with the Motion for Summary Judgment. (Other facts will be mentioned in the course of the Argument).

2Although Intervenors' sites have been accessible on some days in the library, SUF at ¶410 (Sehgal Decl.), Intervenors legitimately fear that they will be blocked in the future at the library, for several reasons. First, the content on Intervenors' sites changes constantly, and Intervenors fear that their new but similar content, often located on web pages with new addresses, will be blocked by X-Stop. Second, some of Intervenors' sites have moved, and Intervenors fear that while X-Stop may not re-block their previous address, the product may block their new address because it contains similar content. Third, Intervenors fear that Defendant may switch blocking products to another blocking software that blocks their speech. Finally, Intervenors fear that Defendant's decision to unblock their sites was motivated by this lawsuit. Because Defendant has no control over what X-Stop will block, and does not have the time to check continually for sites that should not be blocked by X-Stop, Intervenors fear that they could be blocked again absent a ruling in their favor. Id. at ¶¶12-17, 31-36, 47-52, 59-63, 78-83, 94-99, 113-118, 127-133 (Int. Decls.).

3See Section II.B. infra for a discussion of the government's failure to assert a compelling interest to justify the Policy.

4See also Vance v. Universal Amusement Co., Inc., 445 U.S. 308, 316 (1980) ("[P]rior restraints would be more onerous and more objectionable than the threat of criminal sanctions after a film has been exhibited, since nonobscenity would be a defense to any criminal prosecution.") (striking down Texas nuisance statute which authorized prior restraints of indefinite duration on the exhibition of motion pictures that had not been finally adjudicated to be obscene).

5The Policy as implemented undoubtedly fails to provide Intervenors and other Internet speakers with any definitions that would allow a "person of ordinary intelligence to know what is prohibited." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); Smith v. Goguen, 415 U.S. 566, 572 (1974). If they were forced to self-censor to reach library patrons, they have no way of knowing what speech to remove from their sites to avoid being blocked in the future. The Policy's own vague terms are not even used by X-Stop. SUF at §III.C.2. To the extent that X- Stop has explained any of the criteria they use to block sites, the definitions have changed over time, have never conformed to the terms of the Policy, and are equally vague. Id. See Reno v. ACLU, 117 S.Ct. at 2344 (in discussing vagueness of statute that used two different standards, the Court noted that "this difference in language will provoke uncertainty among speakers about how the two standards relate to each other and just what they mean.").

6See note 2 supra regarding Intervenors' fear of being blocked in the future.

7There is also no doubt that the Policy as applied bans speech clearly protected even for minors. All of Intervenors believe their speech is of value at least to older minors, and all of intervenors were blocked. SUF at ¶¶8, 25, 43, 57, 70, 92, 110, 125 (Int. Decls.).

8The government bears the burden of establishing a compelling government interest capable of justifying the Policy. ACLU v. Reno, 929 F. Supp. 824, 866 (E.D.Pa. 1998); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding that, on motion for summary judgment, parties bear the burden of establishing all elements of a case on which they would bear the burden at trial).

9In addition to undermining Defendant's interest in preventing sexual harassment, the lack of definition makes the Policy unconstitutionally vague. See Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) ("It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.")

10Even if the Policy were not fatally overinclusive and underinclusive, "existing case law recognizes that the mere presence of sexually explicit materials in the workplace does not foster a hostile work environment or otherwise violate gender discrimination laws." Urofsky v. Allen, 995 F.Supp. at 640.

11Of course, common sense would assume that few would-be violators of obscenity and child pornography laws would choose a public place such as a public library, where they must provide identification for Internet access, to commit such a crime.


Subscriptions | FAQ | Notices & Disclaimers | Privacy Policy
Copyright 1998-2008 David Carney, dba Tech Law Journal. All rights reserved.
Phone: 202-364-8882. P.O. Box 4851, Washington DC, 20008.