Agreeing that Net filtering at public libraries is like blacking out
passages in books, a federal court decision issued yesterday stated that
government mandates to screen online content will face the strictest
In a closely watched case unfolding in Virginia, U.S. District Judge Leonie
Brinkema has pushed forward a civil liberties lawsuit to overturn the Loudoun County Public Library's policy to use the program X-Stop to limit all patrons' online access to any
"material deemed harmful to juveniles."
More significantly, Brinkema's 36-page ruling rejecting the county's request to dismiss the case concluded that library Net filtering is not the same as a branch choosing which books to stock, and therefore the practice could violate free speech. Restricting adults' access to online content will be hard to justify, she added.
The Supreme Court came to a similar conclusion
last summer when it threw out the Communications Decency
Act, which made it a felony to send "indecent" content to minors over
Brinkema's decision marks only the first step in the case. Now the lawsuit
will go for a full trial, in which the county will have to meet the burden
of proof she laid out yesterday. The county's task is daunting, however,
as Brinkema already ripped apart most of its arguments.
Trustees who voted in favor of Loudoun's filtering policy said allowing Net surfers to pull up obscene material can create a hostile work environment.
"As trustees we have to be concerned about having damages levied against the library for sexual harassment cases," John Nicholas, chair of the library board, said today.
"This isn't political or about legislating morality," he added. "Anything displayed on the Net in the library that could create a sexually hostile environment has to be dealt with. If not for [the federal sexual harassment laws], we would just have limited minors' access by establishing adult terminals and child terminals."
The county also contends that filtering Net access is the same as its decision
not to buy certain paper-based materials. But Brinkema agreed with the civil
liberties groups that filtering is more like pulling materials from the
shelves--in other words, censorship.
"Plaintiffs analogize the Internet to a set of encyclopedias, and the
Library Board's enactment of the policy to a decision to 'black out'
selected articles considered inappropriate for adult and juvenile patrons,"
she wrote in the ruling.
"By purchasing Internet access, each Loudoun library has made all Internet
publications instantly accessible to patrons," she continued. "As such, the
Library Board's action is more appropriately characterized as a removal
The Library Board also argues that patrons can fill out a form to request
that certain sites be "unblocked," and the petitions will be reviewed by
library staff. Still, the county will not be able to use the "unblocking"
procedure as a defense for the policy, the judged countered, "because it
grants library staff standardless discretion to refuse access to protected
And citing the Supreme Court's ruling against the CDA, Brinkema said
the county can't "in the interest of protecting children, limit the speech
available to adults to what is fit for 'juveniles.'"
The federal judge recognized, however, 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."
The judge's ruling is not final, however. She noted that other questions
need to be more thoroughly examined by the court, such as the defendant's
justification for the policy; the actual sites blocked by X-Stop; and the
defendant's "knowledge of and control over the sites X-Stop blocks."
The outcome of the Loudoun case no doubt will serve as a litmus test for
other libraries that are filtering access to
certain sites, or those that are considering doing so. Most policies target sexually explicit content.
In addition, legislation
is making its way through Congress to
require public schools and libraries that get federal discounts on Net
access to install software on their computers to filter out material that
is "inappropriate for minors," as defined by the community
The People for the American Way and the
American Civil Liberties Union are suing
Loudoun on grounds that Net blocking programs often bar entry to
constitutionally protected sites with social value, such as newspaper
columns by Rob Morse of the San Francisco Examiner, who is a
plaintiff in the case. Morse covers an array of subjects, from the pains of filing
income tax returns to gay and lesbian issues. But his articles, as well as
the entire SF Gate newspaper site, is
allegedly blocked in Loudoun libraries.
"This policy can?t meet the standards set forth by the judge--so the writing
is on the wall for this policy," Larry Ottinger, senior staff attorney for
People for the American Way, said today.
The ACLU will leverage Brinkema's comments and decision to hear the case in
its fight to derail other policy makers who are mulling over Net filtering
"The judge has presumed that this is unconstitutional and now the
government will have to overcome that," Ann Beeson, the ACLU's staff attorney,
said today. "The precedent of this decision has sent a strong message to
other libraries that are grappling with this policy and Congress that
using filtering software brings up very serious First Amendment concerns."
Brinkema did not side with the civil liberties groups on all fronts,
however. She dismissed some of the plaintiffs in the case, such as library
patrons who never tried to access sites that were blocked by the policy.