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Mainstream Loudoun et al. v. Board of Trustees of the Loudoun County Library et al.

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 the Internet 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 rights of library users by affirming that freedom of speech fully applied to library Internet 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 publications are jointly available for a single price. Indeed, it costs a library more to restrict the content of its collection by means of blocking software than it does 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 could not 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 that end." Therefore, "the Library Board may not thereafter selectively restrict certain 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 blocking access 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.

Additional topics

Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1995 to PresentMainstream Loudoun et al. v. Board of Trustees of the Loudoun County Library et al. - Significance, The Internet Filtering Dilemma, Loudoun Chooses Restricted Access, Protection By Subtraction, Impact