Judge: Library's Web 'Filter' Violates First Amendment

In an April 7 order, the judge also noted that public libraries are "places of freewheeling and independent inquiry" and are not governed by the same concerns as public schools, where officials have broad discretion to remove materials deemed "harmful to children." The library board's policy of using computer software to block access to Web sites considered pornographic or potentially "harmful to children" in public libraries, said the judge, violates the First Amendment by imposing a "content-based" restriction on speech of adults. Giving adults the option of filing a written request that a site be unblocked, said the judge, amounts to a "chilling" effect on their First Amendment rights.

The judge, Leonie Brinkema (a Clinton appointee) of the U.S. District Court for the Eastern District of Virginia, said the library board, in order to save the policy, must meet the legal system's most difficult requirement: showing that the policy meets a "compelling" need and that that need is accomplished by the most "narrowly drawn" restriction as possible.

In issuing the order last week, Brinkema denied the library board's request to dismiss the lawsuit brought by a number of civil rights groups. The case is expected to go to trial late this summer, giving the library board an opportunity to show its need for the policy.

"The library need not offer Internet access," wrote Brinkema in her 36-page ruling, "but, having chosen to provide it, must operate the service within the confines of the First Amendment."

The American Civil Liberties Union (ACLU) praised the ruling as "one of the strongest-ever defenses of online free speech." The ACLU joined as a plaintiff in the lawsuit originally brought by a local citizen's group called Mainstream Loudoun. The ACLU is representing parties with materials posted on the Internet that may be blocked by the library's filter. Among the eight specific parties which the ACLU is representing are operators of Web pages providing information about Gay youth, transgender people, and safer sex.

The ACLU, as well as several Gay civil rights groups, monitors the use of Internet filtering software in public libraries and schools around the country. Many Gay youth organizations believe the Internet is a prime resource for youth struggling with their sexual orientation and that many of the popular filtering software packages censure Web pages with Gay and safer sex content.

"We feel like we're in the best possible position [in proceeding to trial]," commented ACLU lead attorney Ann Beeson on Brinkema's ruling.

But Library Board Chair John Nicholas said the board is looking beyond the district court level.

"We will appeal," said Nicholas. "And so will [the plaintiffs]. Regardless of what comes out of [Brinkema's] court, there will be an appeal."

Nicholas acknowledged that the board will have a difficult challenge in trying to meet the requirements Brinkema laid out for trial, but he noted that the case will not stop with her court.

"We still think our case is that this is not a First Amendment issue," he added. "We don't believe that she is ruling on the Internet properly."

The board has argued that the Internet is analogous to a huge interlibrary loan system and that its use of the filtering software is analogous to a library's decision not to stock certain books or materials. As the argument goes, the library is not restricting speech but, rather, choosing not to serve as a conduit for certain speech.

"No prior judicial decision has compelled a party - whether a state agency or a private entity - to serve as an unwilling conduit of information, whether protected by the First Amendment or not," the board argued in its motion to dismiss the suit.

But Brinkema fully rejected the board's comparison of the Internet to an interlibrary loan system.

"By purchasing Internet access, each Loudoun library has made all Internet publications instantly accessible to its patrons," Brinkema wrote. "In effect, by purchasing one ... 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."

The policy in contention, adopted in November of last year, requires that the Library Edition of a computer software program called X-Stop be installed on all Internet terminals in the library system. The X-Stop filter blocks Web addresses containing pornography and other content deemed "harmful to children." The policy also requires that anyone wishing to use the Internet be at least 18 years of age or have written permission from an adult guardian. The stated purpose of the policy is to prevent sexual harassment that might occur through the availability of materials that "may intimidate patrons or staff, denying them equal access to public facilities."

The Gay and Lesbian Alliance Against Defamation lists the X-Stop software as among those that most often block Web sites with Gay-related content. In the ACLU's brief requesting the right to intervene in the lawsuit, three operators of Web sites with Gay or AIDS-related content charge that their sites are either currently blocked or have been blocked in the past by the library's use of the X-Stop software. But during a March visit to one of the Loudoun County library's branches, a Blade reporter was able to gain access to all eight Web sites listed in the ACLU's motion to intervene, as well as the Washington Blade's Web site and approximately 25 other sites containing Gay and AIDS-related information.

Library Services Director Doug Henderson explained that library administrators tested the X-Stop system before installing it and found that it blocked at least 57 sites that are "definitely protected speech." Gay and AIDS-related sites were among those, said Henderson, and all 57 sites have since been unblocked. Subsequently, the library established a system in which patrons who find a site blocked and believe it should be available can register an official request for the site to be unblocked. The request must be made in writing using the patron's name and address. The library board argues that even if the First Amendment does limit its ability to use Internet filtering software, this unblocking system ensures that no constitutionally protected speech will be filtered out.

But Brinkema rejected this argument as well.

"The unblocking policy forces adult patrons to petition the Government for access to otherwise protected speech," she wrote. "Indeed, the Loudoun County unblocking policy ... grants library staff standardless discretion to refuse access to protected speech."

Nicholas said he thinks last week's ruling makes it clear "what direction [Brinkema] is going in."

"I wish she would get on with the trial as soon as possible," he remarked, referring to the August date set for pre-trial conferences. "I see no reason for that kind of delay."

Nicholas said the library board, which originally approved the policy by a 5 to 4 vote, is committed to fighting the suit all the way to the U.S. Supreme Court if necessary. He said the board has redirected $45,000 of surplus funds from last year's budget to a legal fund and will meet Monday, April 20, to discuss requesting an additional $100,000 from the Loudoun County Board of Supervisors to challenge the suit.

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