April 9, 1998

In Rejecting Dismissal of Filtering Case,
Judge Sets High Standard for Libraries

By JERI CLAUSING

ASHINGTON -- In the first major ruling on the use of Internet filtering software in public libraries, a federal judge in Virginia has rejected efforts to dismiss a challenge to the use of such software in Loudoun County, Va.

Judge Leonie M. Brinkema of U.S. District Court for the Eastern District of Virginia said in a forceful 36-page opinion on Tuesday that the government had "misconstrued the nature of the Internet" and held that "the Library Board may not adopt and enforce content-based restrictions on access to protected Internet speech" unless it meets the highest level of constitutional scrutiny.

The American Civil Liberties Union hailed the opinion as one of the strongest ever defenses of online free speech, and one it hopes will help slow the movement of legislation at the federal state, and local level to require filters on school and library computers.

"We are thrilled that the judge in this case, a former librarian, recognized the Internet as the ultimate library resource," said Ann Beeson, an ACLU staff lawyer on the case who also was on the team that successfully fought theCommunications Decency Act.

Beeson said that although the case will still go to trial, the unequivocal language of the ruling gave the government a very high burden to meet in its defense of the blocking policy.

"Blocking software is nothing more than CDA in a box," Beeson said. "With today's ruling, the court correctly applied the same level of First Amendment scrutiny that the Supreme Court used in rejecting the CDA."

“We are of the view that when she hears all the evidence and has a full trial on how filtering works, the volume of obscenity out there, she will be persuaded that this is the only practical way to do it.”
Ken Bass, a lawyer defending Loudoun County, speaking of Judge Leonie M. Brinkema

Ken Bass, a Washington, D.C., lawyer defending Loudoun County, agreed that the opinion set the "highest First Amendment hurdle for the Loudoun County Board to clear. But I think they are wrong in saying we can't clear it."

Bass said the judge acknowledged that obscenity is not protected by the First Amendment, and he said that's what the Loudoun policy is about: not providing access to obscenity. "She acknowledges that," he said.

"The nature of the Internet ... compels you to use filtering software to not deliver obscenity to the public library," said Bass, of the firm Venable, Baetjer, Howard & Civiletti. "You have to filter. If you don't filter obscenity will come through. The issue then becomes how do you design the filter. We are of the view that when she hears all the evidence and has a full trial on how filtering works, the volume of obscenity out there, she will be persuaded that this is the only practical way to do it."

Eugene Volokh, a law professor at the University of California Los Angeles who specializes in free speech and cyber issues, emphasized that the opinion is "an early battle" in a contentious issue.

"My sense is that one district judge does not a legal trend make or even a legal doctrine," Volokh said. "I though this was a good opinion. ... It certainly came out in favor of the ACLU, although it does gloss over the fact that there are resource issues."

In refusing to dismiss the case, Brinkema said library boards are not immune from such suits, a point Bass indicated would be appealed.

But for now, the ACLU is relishing in what it considers an initial victory from Brinkema.

Cassidy Seghal, a lawyer in the ACLU's Washington, D.C., office, said the opinion should provide a tremendous boost to its Congressional lobbying effort against a bill by Senator John McCain, an Arizona Republican, that would require all schools and libraries that receive federal money to hook up to the Internet to use filtering software.

"The bottom line is that this decision is really what we were waiting for in terms of going back to the Senate and fighting Senator McCain on his bill," Seghal said.

McCain's office declined to comment on the Loudoun ruling or on what effect it might have on the movement of his bill, tentatively scheduled for a May vote, saying it had not seen the Brinkema ruling.

Related Article Library's 'Internet User's Agreement' Violates Rights, Group Says (April 3, 1998)

A number of states and localities are also considering filtering policies for school and public libraries.

"Every member of every library board considering an Internet-blocking policy ought to read the judge's ruling," said Kent Willis, executive director of the ACLU of Virginia. "It will remind them of why we have libraries and why an unfettered Internet serves the fundamental purpose of libraries better than any invention since the printing press."

I refusing to dismiss the case, Brinkema did said library boards are not immune from such suits -- a point Bass indicated would be appealed -- but she did release board members from personal liability.

Indeed, Bass said there were a number of cases around the country in which libraries have been deterred from carrying out policies similar to Loudoun's because of the threat of costly litigation.

Calling public libraries places of "freewheeling and independent inquiry," Judge Brinkema quoted extensively from Reno v. ACLU, the landmark Supreme Court decision on Internet free speech that stuck down the Communications Decency Act, noting that the Court "analogized the Internet to a 'vast library including millions of readily available and indexed publications,' the content of which 'is as diverse as human thought.'"

The court also rejected the notion that the use of blocking software can be considered analogous to a librarian's selecting certain materials, noting that Internet publications "exist only in 'cyberspace,'" and do not "take up shelf space or require physical maintenance of any kind."

Nor do such publications cost money, the judge said, noting that in fact, "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."

The lawsuit challenging the Internet policy was filed in December by Mainstream Loudoun and a number of residents of Loudoun County. People For the American Way Foundation and the Washington, D.C., law firm of Hogan and Hartson L.L.P. are representing the plaintiff as co-counsel.

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Related Sites
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• American Civil Liberties Union
• CyberTimes Communications Decency Act Home Page

• Mainstream Loudoun

• People For The American Way

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Jeri Clausing at jeri@nytimes.com welcomes your comments and suggestions.

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