Plaintiff
Mainstream Loudoun Association and ten members
Defendant
Board of Trustees of the Loudoun County Library and Douglas Henderson
Plaintiff's Claim
That the Loudoun County Library violated the Speech Clause of the First Amendment by restricting patrons' access to certain Internet sites.
Chief Lawyer for Plaintiff
Robert Corn-Revere
Chief Defense Lawyer
Kenneth C. Bass III
Judge
Leonie M. Brinkema
Place
Alexandria, Virginia
Date of Decision
7 April 1998
Decision
Ruled in favor of Mainstream Loudoun by finding that the Loudoun County Library must revise its Internet access policy to not violate the First Amendment's Speech Clause.
Significance
The ruling upheld constitutional rights of library users by affirming that First Amendment freedoms fully apply to public library Internet access. The decision set a legal standard for assessing Internet use restrictions in futurecases. With the clarification of First Amendment protections applied to public Internet use, libraries searched for legal means to control access, particularly for children who hold fewer First Amendment rights.
The rapid growth of the Internet in the 1990s and its use in public librariesraised new complex legal and policy questions. Clearly, the shear volume ofinformation on the Internet meant that much unreliable, illegal, and clearlydangerous material was more accessible to individuals. By the late 1990s, thecomputer industry had developed software capable of screening Internet material considered "inappropriate." About 15 percent of public libraries in the United States installed the filters on at least some their computer terminalsaccording to a survey by the American Library Association (ALA). Such filterprograms were immediately criticized by civil libertarians charging the programs, while ineffective in blocking out all undesirable materials, did block out much material considered appropriate for viewing. The ALA argued that users of the Internet in public libraries were the only ones who should determinewhat is appropriate for them to view. On the other hand, a Ohio library's funding was threatened by community members unless the library installed filters. Few libraries fully supported the ALA position.
The U.S. Supreme Court, in the unanimous 1997 Reno v. ACLU ruling striking down key provisions of the Communications Decency Act, noted the potential use of such software as a legally preferable alternative to legislation limiting speech. In response, various states considered legislation promoting the use of such software, or other means of content restriction in public schools and libraries.
The Internet Filtering Dilemma
In the wake of the Reno ruling, Senator John McCain, R-Arizona, sponsored The Internet School Filtering Act that would require schools and libraries to use filtering or blocking systems for publicly accessible computers. Theproposed law would restrict availability of certain telecommunications discounts and withhold funding support to public schools and libraries if filtering or blocking software were not used. Critics charged any legislation requiring all inappropriate material be blocked was not constitutionally feasible given software technology. All commonly available filtering technology would likely be over-inclusive in what it restricts. Additionally, constitutional tests used in courts to assess obscenity and indecency included a key "communitystandards" element. Consequently, any law requiring that access be blocked to "obscene," "indecent," or "illegal" material would require implementation based on local community standards of what was considered undesirable. With little legal guidance, including court decisions, libraries struggled to establish workable compromises.
Loudoun Chooses Restricted Access
The Loudoun County public library system in Virginia consisted of six branches and, like many public libraries, provided public access to the Internet andthe World Wide Web. A library board of trustees controlled and managed the library. Board members, appointed by county officials, adopted bylaws, rules and regulations to guide operation and use of the library system.
In October of 1997, the library board voted to adopt an Internet sexual harassment policy requiring Internet site-blocking software be installed on all library computers. The primary purpose was to block children's access to sexually explicit material. The policy also required blocking other material judged"harmful to juveniles" under Virginia law. The library board selected a commercial software product, X-Stop, to limit access to such sites.
Shortly afterwards, a local citizens' association known as Mainstream Loudounand ten adult members of Mainstream who were patrons of the Loudoun County public libraries filed suit against the Board of Trustees of the Loudoun County Public Library, including its five board members, and against Douglas Henderson, Loudoun County's director of library services. Mainstream sought a court-ordered injunction blocking further use of the blocking software and eliminating the policy.
Mainstream, represented by the American Civil Liberties Union, claimed the library blocked their access to such protected speech as the Quaker Home Page,the Zero Population Growth website, and a site for the American Association of University Women-Maryland. They also charged no clear criteria existed forthe blocking decisions, thus Mainstream's receipt of constitutionally protected materials on the Internet was illegally restricted.
The library policy was essentially asking the software to conduct a legal test to determine what material was inappropriate. Mainstream further argued that library policy requiring all computer terminals be placed in full view of others actually increased, rather than decreased, a risk that library patronsmight view material they may consider offensive. Such public placement of terminals might also pose a restrictive effect by discouraging patrons from viewing even unfiltered material. Mainstream charged that, ironically, the filtering software could potentially block material on the Internet that was actually available to library patrons on the library's shelves.
The Board responded that the new policy was patterned after an existing policy restricting the library from obtaining certain objectionable materials whenrequested by patrons. The Board argued that accessing material by computer at an Internet site was the same as using library facilities to request an interlibrary loan of the material. The Board contended that as far as they knew"no court has ever held that libraries are required by the First Amendment tofulfill a patron's request to obtain a pornographic film through an interlibrary loan." Furthermore, they argued the Supreme Court in Board of Education v. Pico (1982) held that school boards should have the freedom to decide what materials to add to their library collections.
Protection by Subtraction
Judge Leonie M. Brinkema wrote that "the central question before this court is whether a public library may, without violating the First Amendment, enforce content-based restrictions on access to Internet speech." The Board had sought to portray the Internet as a vast interlibrary loan system. Restricting Internet access to selected materials was merely a decision not to acquire such materials, not a decision to remove them from a library's collection. On the other hand, Mainstream considered the Internet a set of electronic encyclopedias. The board's policy essentially "blacked out" selected articles they, or a computer software company, considered inappropriate for adult and juvenile patrons.
Brinkema found the Board's interlibrary loan argument unpersuasive since theInternet connection and its benefits were already present within the library.Library staff was not needed to arrange for the transfer of any material already available to an Internet-connected library computer. Brinkema wrote that, to the contrary, software restricting access to certain material actually removed access to material already available in the library.
Brinkema, coincidentally a former librarian, thus found in favor of Mainstream Loudoun. The judge's strongly worded opinion upheld First Amendment rightsof library users by affirming that freedom of speech fully applied to libraryInternet access. Brinkema concluded the Board distorted the nature of the Internet. She held that the Internet more clearly resembled Mainstream's analogy to encyclopedias, and the library board's action was more of a removal decision. Brinkema wrote,
Brinkema characterized public libraries as places encouraging freewheeling inquiry. Consequently, library boards did not enjoy the same discretion in removing or restricting materials as public school boards. In fact, Brinkema noted the Court in Pico"justified giving public schools broad discretion to remove books in part by noting that such materials remained available in public libraries."
Brinkema concluded the First Amendment clearly applied to and limited a public library's discretion to place content-based restrictions on the access to constitutionally protected materials in its collection. A public library couldnot determine what was acceptable in politics, nationalism, religion, or other matters of opinion. Brinkema wrote, "Adults are deemed to have acquired the maturity needed to participate fully in a democratic society, and their right to speak and receive speech is entitled to full First Amendment protection." The judge continued, "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 thatend." Therefore, "the Library Board may not thereafter selectively restrictcertain categories of Internet speech because it disfavors their content."
Brinkema noted that "plaintiffs allege that the X-Stop filtering software chosen by defendants restricts many publications which are not obscene or pornographic." They also noted that X-Stop was not completely effective at blockingaccess to pornographic materials addressed in the policy. The relationship of a California corporation's criteria for blocking materials to legal definitions of obscenity or child pornography was unknown. Brinkema, noting the policy included prohibition of materials considered harmful to juveniles, ruled the Board could not, in the interest of protecting children, limit speech available to adults to only what is considered fit for children.
Impact
The Loudoun decision was the first major court case challenging publiclibrary use of Internet filters. The decision in issuing a permanent injunction against the filtering policy supported unrestricted access to the Internet in public libraries. The Virginia library's policy was considered a form ofprior restraint on the distribution of speech. Following the ruling, the Loudoun library board voted to allow adults unfiltered Internet access and parental permission slips for children to use unfiltered computers.
Though the Board was concerned that the Loudoun decision undercut thetraditional role of librarians in deciding what materials a library should acquire, the court was clear that the decision only applied to the unique worldof the Internet. In the realm of books, librarians continued to make acquisition choices. In the Internet world, all information is equally available atno additional cost with the click of a mouse.
Though the decision only applied to eastern Virginia, the effects were felt throughout the nation as libraries began to reassess their own policies towardInternet use. Left unanswered by the decision was whether it was constitutionally acceptable to use such filters on terminals set aside for children. TheLoudoun decision reinforced the principle that minors hold fewer constitutionally protected rights than adults. Many public schools already required parental permission before allowing students access to the Internet on school computers.
Libraries also considered use of other measures, such as using privacy screens or optional filter by-pass codes. Another option was for public libraries to purchase some form of limited Internet access identifying only particular sites desired. The Internet served in the 1990s to test the constitutional notions of freedom of speech and press in ways that were previously unimaginable.
Related Cases
Mainstream Loudoun Association and ten members
Defendant
Board of Trustees of the Loudoun County Library and Douglas Henderson
Plaintiff's Claim
That the Loudoun County Library violated the Speech Clause of the First Amendment by restricting patrons' access to certain Internet sites.
Chief Lawyer for Plaintiff
Robert Corn-Revere
Chief Defense Lawyer
Kenneth C. Bass III
Judge
Leonie M. Brinkema
Place
Alexandria, Virginia
Date of Decision
7 April 1998
Decision
Ruled in favor of Mainstream Loudoun by finding that the Loudoun County Library must revise its Internet access policy to not violate the First Amendment's Speech Clause.
Significance
The ruling upheld constitutional rights of library users by affirming that First Amendment freedoms fully apply to public library Internet access. The decision set a legal standard for assessing Internet use restrictions in futurecases. With the clarification of First Amendment protections applied to public Internet use, libraries searched for legal means to control access, particularly for children who hold fewer First Amendment rights.
The rapid growth of the Internet in the 1990s and its use in public librariesraised new complex legal and policy questions. Clearly, the shear volume ofinformation on the Internet meant that much unreliable, illegal, and clearlydangerous material was more accessible to individuals. By the late 1990s, thecomputer industry had developed software capable of screening Internet material considered "inappropriate." About 15 percent of public libraries in the United States installed the filters on at least some their computer terminalsaccording to a survey by the American Library Association (ALA). Such filterprograms were immediately criticized by civil libertarians charging the programs, while ineffective in blocking out all undesirable materials, did block out much material considered appropriate for viewing. The ALA argued that users of the Internet in public libraries were the only ones who should determinewhat is appropriate for them to view. On the other hand, a Ohio library's funding was threatened by community members unless the library installed filters. Few libraries fully supported the ALA position.
The U.S. Supreme Court, in the unanimous 1997 Reno v. ACLU ruling striking down key provisions of the Communications Decency Act, noted the potential use of such software as a legally preferable alternative to legislation limiting speech. In response, various states considered legislation promoting the use of such software, or other means of content restriction in public schools and libraries.
The Internet Filtering Dilemma
In the wake of the Reno ruling, Senator John McCain, R-Arizona, sponsored The Internet School Filtering Act that would require schools and libraries to use filtering or blocking systems for publicly accessible computers. Theproposed law would restrict availability of certain telecommunications discounts and withhold funding support to public schools and libraries if filtering or blocking software were not used. Critics charged any legislation requiring all inappropriate material be blocked was not constitutionally feasible given software technology. All commonly available filtering technology would likely be over-inclusive in what it restricts. Additionally, constitutional tests used in courts to assess obscenity and indecency included a key "communitystandards" element. Consequently, any law requiring that access be blocked to "obscene," "indecent," or "illegal" material would require implementation based on local community standards of what was considered undesirable. With little legal guidance, including court decisions, libraries struggled to establish workable compromises.
Loudoun Chooses Restricted Access
The Loudoun County public library system in Virginia consisted of six branches and, like many public libraries, provided public access to the Internet andthe World Wide Web. A library board of trustees controlled and managed the library. Board members, appointed by county officials, adopted bylaws, rules and regulations to guide operation and use of the library system.
In October of 1997, the library board voted to adopt an Internet sexual harassment policy requiring Internet site-blocking software be installed on all library computers. The primary purpose was to block children's access to sexually explicit material. The policy also required blocking other material judged"harmful to juveniles" under Virginia law. The library board selected a commercial software product, X-Stop, to limit access to such sites.
Shortly afterwards, a local citizens' association known as Mainstream Loudounand ten adult members of Mainstream who were patrons of the Loudoun County public libraries filed suit against the Board of Trustees of the Loudoun County Public Library, including its five board members, and against Douglas Henderson, Loudoun County's director of library services. Mainstream sought a court-ordered injunction blocking further use of the blocking software and eliminating the policy.
Mainstream, represented by the American Civil Liberties Union, claimed the library blocked their access to such protected speech as the Quaker Home Page,the Zero Population Growth website, and a site for the American Association of University Women-Maryland. They also charged no clear criteria existed forthe blocking decisions, thus Mainstream's receipt of constitutionally protected materials on the Internet was illegally restricted.
The library policy was essentially asking the software to conduct a legal test to determine what material was inappropriate. Mainstream further argued that library policy requiring all computer terminals be placed in full view of others actually increased, rather than decreased, a risk that library patronsmight view material they may consider offensive. Such public placement of terminals might also pose a restrictive effect by discouraging patrons from viewing even unfiltered material. Mainstream charged that, ironically, the filtering software could potentially block material on the Internet that was actually available to library patrons on the library's shelves.
The Board responded that the new policy was patterned after an existing policy restricting the library from obtaining certain objectionable materials whenrequested by patrons. The Board argued that accessing material by computer at an Internet site was the same as using library facilities to request an interlibrary loan of the material. The Board contended that as far as they knew"no court has ever held that libraries are required by the First Amendment tofulfill a patron's request to obtain a pornographic film through an interlibrary loan." Furthermore, they argued the Supreme Court in Board of Education v. Pico (1982) held that school boards should have the freedom to decide what materials to add to their library collections.
Protection by Subtraction
Judge Leonie M. Brinkema wrote that "the central question before this court is whether a public library may, without violating the First Amendment, enforce content-based restrictions on access to Internet speech." The Board had sought to portray the Internet as a vast interlibrary loan system. Restricting Internet access to selected materials was merely a decision not to acquire such materials, not a decision to remove them from a library's collection. On the other hand, Mainstream considered the Internet a set of electronic encyclopedias. The board's policy essentially "blacked out" selected articles they, or a computer software company, considered inappropriate for adult and juvenile patrons.
Brinkema found the Board's interlibrary loan argument unpersuasive since theInternet connection and its benefits were already present within the library.Library staff was not needed to arrange for the transfer of any material already available to an Internet-connected library computer. Brinkema wrote that, to the contrary, software restricting access to certain material actually removed access to material already available in the library.
Brinkema, coincidentally a former librarian, thus found in favor of Mainstream Loudoun. The judge's strongly worded opinion upheld First Amendment rightsof library users by affirming that freedom of speech fully applied to libraryInternet access. Brinkema concluded the Board distorted the nature of the Internet. She held that the Internet more clearly resembled Mainstream's analogy to encyclopedias, and the library board's action was more of a removal decision. Brinkema wrote,
all, or nearly all, Internet publicationsare jointly available for a single price. Indeed, it costs a library more torestrict the content of its collection by means of blocking software than itdoes for the library to offer unrestricted access to all Internet publications . . . Accordingly, considerations of cost or physical resources cannot justify a public library's decision to restrict access to Internet materials.
Brinkema characterized public libraries as places encouraging freewheeling inquiry. Consequently, library boards did not enjoy the same discretion in removing or restricting materials as public school boards. In fact, Brinkema noted the Court in Pico"justified giving public schools broad discretion to remove books in part by noting that such materials remained available in public libraries."
Brinkema concluded the First Amendment clearly applied to and limited a public library's discretion to place content-based restrictions on the access to constitutionally protected materials in its collection. A public library couldnot determine what was acceptable in politics, nationalism, religion, or other matters of opinion. Brinkema wrote, "Adults are deemed to have acquired the maturity needed to participate fully in a democratic society, and their right to speak and receive speech is entitled to full First Amendment protection." The judge continued, "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 thatend." Therefore, "the Library Board may not thereafter selectively restrictcertain categories of Internet speech because it disfavors their content."
Brinkema noted that "plaintiffs allege that the X-Stop filtering software chosen by defendants restricts many publications which are not obscene or pornographic." They also noted that X-Stop was not completely effective at blockingaccess to pornographic materials addressed in the policy. The relationship of a California corporation's criteria for blocking materials to legal definitions of obscenity or child pornography was unknown. Brinkema, noting the policy included prohibition of materials considered harmful to juveniles, ruled the Board could not, in the interest of protecting children, limit speech available to adults to only what is considered fit for children.
Impact
The Loudoun decision was the first major court case challenging publiclibrary use of Internet filters. The decision in issuing a permanent injunction against the filtering policy supported unrestricted access to the Internet in public libraries. The Virginia library's policy was considered a form ofprior restraint on the distribution of speech. Following the ruling, the Loudoun library board voted to allow adults unfiltered Internet access and parental permission slips for children to use unfiltered computers.
Though the Board was concerned that the Loudoun decision undercut thetraditional role of librarians in deciding what materials a library should acquire, the court was clear that the decision only applied to the unique worldof the Internet. In the realm of books, librarians continued to make acquisition choices. In the Internet world, all information is equally available atno additional cost with the click of a mouse.
Though the decision only applied to eastern Virginia, the effects were felt throughout the nation as libraries began to reassess their own policies towardInternet use. Left unanswered by the decision was whether it was constitutionally acceptable to use such filters on terminals set aside for children. TheLoudoun decision reinforced the principle that minors hold fewer constitutionally protected rights than adults. Many public schools already required parental permission before allowing students access to the Internet on school computers.
Libraries also considered use of other measures, such as using privacy screens or optional filter by-pass codes. Another option was for public libraries to purchase some form of limited Internet access identifying only particular sites desired. The Internet served in the 1990s to test the constitutional notions of freedom of speech and press in ways that were previously unimaginable.
Related Cases
- Board of Education v. Pico, 457 U.S. 853 (1982).
- Reno v. American Civil Liberties Union, 512 U.S. 844 (1997).
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