SUPERIOR COURT OF CALIFORNIA

COUNTY OF ALAMEDA, EASTERN DIVISION

TABLE OF CONTENTS

INTRODUCTION

This case is before the court because plaintiff's son sneaked out to the Livermore Public Library and downloaded some sexually explicit pictures from the Internet using the library's computers. Comp. ¶ 7-10. He then went to a relative's home and, again without letting any adult know what he was doing, printed out the pictures. Id. ¶ 12. Apparently, the boy repeated these actions on a number of occasions. Id. ¶ 14. Plaintiff now seeks to hold the Livermore Public Library responsible for her son's conduct.

Plaintiff's original complaint was based on three state tort law causes of action. It sought an injunction that would prohibit the library from providing Internet access unless the library could ensure that no patron would be able to obtain obscene material over the Internet and that no minor would ever view harmful matter. This court sustained the City's demurrer, holding that section 230 of the Communications Decency Act bars plaintiff's claims.

Plaintiff has now filed an amended complaint, raising a constitutionally-based claim. At its core, the complaint asserts that the Due Process Clause of the Constitution permits parents to abdicate their responsibility for supervising their children and, instead, shifts that responsibility to whatever publicly maintained facility a minor may choose to visit.

Even in an ordinary case, courts hesitate to impose on government agencies a substantive due process duty to protect from risks voluntarily encountered or harm inflicted by third parties. This is so even when a government entity may fairly be said to have contributed to the grievous harm suffered by a plaintiff. See, e.g., Collins v. City of Harker Heights, 503 U.S. 115 (1992); DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189 (1989). This, however, is no ordinary case. It is a case in which a parent seeks to cast a public library in the role of censor--a role forbidden by the First Amendment.

The Board of Trustees of the Livermore Public Library has adopted a policy on Internet use that informs patrons that material available over the Internet may be controversial, that the library does not supervise or monitor the Internet use of minors, and that parents are responsible for doing so. This policy enables each family to be sure that its children use the Internet in a manner that is consistent with its own values without imposing those values on others. By no stretch of the imagination can a policy that so carefully balances both the concerns of parents and the requirements of the First Amendment be said to violate the Due Process Clause of the Constitution.

ARGUMENT

I. PLAINTIFF'S COMPLAINT DOES NOT ALLEGE A SUBSTANTIVE DUE PROCESS VIOLATION.

In reviewing a claim that the government has deprived a plaintiff of her right to substantive due process, the court must first determine whether the facts allege a constitutional violation. Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992). Here, plaintiff alleges that allowing library patrons unrestricted access to the Internet violates principles of substantive due process.

Unlike a procedural due process claim, which rests on the assertion that the state has deprived an individual of life, liberty, or property without first following procedures to ensure that the decision is fair, the substantive component of the Due Process Clause bars certain government decisions "regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U.S. 327, 331 (1986); County of Sacramento v. Lewis, 523 U.S. ___, 140 L. Ed. 2d 1043, 1053 (1998). The Clause is "intended to secure the individual from the arbitrary exercise of the powers of government," serving "to prevent governmental power from being used for purposes of oppression." Daniels, 474 U.S. at 331 (internal citations omitted). Thus the Supreme Court has held that a substantive due process violation entails "an abuse of executive power so clearly unjustified by any legitimate objective of [government] as to be barred by the Fourteenth Amendment." Lewis, 140 L. Ed. 2d at 1054; see also id. at 1057 (due process guarantee protects against "the exercise of power without any reasonable justification in the service of a legitimate governmental objective). "[O]nly the most egregious official conduct can be said to be 'arbitrary in the constitutional sense' . . . ." Id. (quoting Collins, 503 U.S. at 129).

The Supreme Court has established an extremely high standard for making out a substantive due process claim. In particular the Court has cautioned that the Due Process Clause

is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State to deprive individuals of life, liberty or property without 'due process of law,' but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.

DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189, 195 (1989).

Moreover, when dealing with a claimed deprivation of substantive due process, it is of critical importance that the interest allegedly invaded be carefully described. Collins, 503 U.S. at 125 (court "must focus on the allegations in the complaint to determine how petitioner describes the constitutional right at stake and what the city allegedly did to deprive her . . . of that right."); see also Washington v. Glucksberg, 521 U.S. ___, 138 L. Ed. 2d 772, 788 (1997). It is only when that claimed interest is accurately understood that the court can determine whether a substantive due process violation has been alleged.

A. Plaintiff Has Failed to Allege the Deprivation of a Constitutionally Protected Interest.

Plaintiff alleges that the City of Livermore violated her right to substantive due process by failing to prevent her son from using the Internet to obtain material that she claims is either obscene or harmful to minors. In other words, plaintiff contends that the Constitution imposes on the library the affirmative duty to monitor and control the Internet use of minors. That is an astounding assertion indeed. The Due Process Clause does not authorize a parent to require that the State supervise her child so that she, herself, may be relieved of the obligation to do so.

Plaintiff's claim that the Constitution requires the Livermore library to maintain a safe environment for its patrons must be rejected in light of the Supreme Court's decision in Collins v. City of Harker Heights, 503 U.S. 115. The Collins Court unanimously held that allegations far more serious than those here were insufficient to state a claim under substantive due process. In Collins plaintiff's husband died of suffocation while working in a city sewer. Plaintiff alleged that the city was well aware of the danger of working in the sewers. Indeed, her husband's supervisor had some time earlier been rendered unconscious by the same sewer gas that caused her husband's asphyxiation. She therefore claimed that the city's failure to provide a reasonably safe work environment violated the Due Process Clause. Id. at 125-26.

In analyzing plaintiff's substantive due process claim, the Court noted that plaintiff had alleged only the failure "to provide . . . employees with minimal levels of safety and security in the workplace." Id. In the absence of allegations that the city had in some way compelled Collins to undertake his dangerous endeavor, the Court found plaintiff's claim to be "unprecedented." Id. at 127; see also id. at 128. Given this precedent, it is clear that Kathleen R. cannot maintain that either she or her son were deprived of a protectible liberty interest when Brandon P. voluntarily went to the library and used the Internet as he did. See also DeShaney v. Winnebago County Dep't of Social Services 489 U.S. at 200.¹

Plaintiff's allegations that the library knows that students go to the library to work on school assignments, Amended Comp. ¶ 39, that the library advertises itself as a place where children are welcome and puts on special programs for them, id. ¶ 40, or that it invites children to use the resources of the library, including its computers, id., do not save this complaint. See Carlton v. Cleburne County, 93 F.3d 505 (8th Cir. 1996). In Carlton, plaintiffs were injured when a county owned bridge collapsed. Plaintiffs alleged that the county had created the danger that caused them harm by assuring them that the bridge was safe and encouraging them to use it. Id. at 509. In holding that plaintiffs had failed to make out a substantive due process claim the court held:

Mere knowledge of danger to the individual does not create an affirmative duty to protect. Deshaney [v. Winnebago County Dep't of Social Services] 489 U.S. at 200. Simply offering a location as a tourist attraction is not the type of affirmative government action that creates a duty to protect under DeShaney. Appellants allege no affirmative act on the part of government officials directly placing them on the bridge. Nor did the County appellees' actions 'create the danger' causing the bridge to collapse. To the contrary, accepting the appellants' allegations as true, the bridge cables broke because of internal corrosion caused by rust. . . . [N]either the County appellees' actions or inaction placed these particular individuals in a position of danger. . . . Instead, any action on the part of the County appellees was directed toward members of the general public. There simply was no constitutional deprivation under § 1983 in this case.

Id.; see also Martinez v. California, 444 U.S. 277, 285 (1980) (" the parole board was not aware that appellants' decedent, as distinguished from the public at large, faced any special danger" from the release of the prisoner who killed her).

Carlton is dispositive. The much more serious and concrete allegations of harm held insufficient in Carlton stand in sharp contrast to the allegations of the complaint here. Indeed, plaintiff, herself, acknowledges that the library has explicitly warned its patrons in its Access to Electronic Information, Services and Networks Policy that "Library patrons use the Internet at their own risk." Amended Comp. ¶ 44. Significantly, that policy, attached to the complaint as Exhibit B, makes it abundantly clear that the Internet contains controversial content, that the library is not responsible for that content, and that it is up to parents to supervise the Internet use of their children. It states:

The Internet has no federal, state or local control of its users or content. The Internet and its available resources may contain materials of a controversial nature. The Livermore Public Library does not monitor and has no control over the information accessed through the Internet and cannot be held responsible for its content. . . . Library patrons use the Internet at their own risk.

. . .

Parents are expected to monitor and supervise children's use of the Internet in selecting material that is consistent with personal and family values. The Livermore Public Library does not provide this monitoring or supervision.

Comp., Ex. B²; compare DeShaney, 489 U.S. at 197 (holding no substantive due process violation even though County had "specifically proclaimed, by word and by deed, its intention to protect [plaintiff]" from abuse by his father). The Livermore library was neither responsible for the content available on the Internet nor for Brandon P's actions in going to the library and using the Internet without his mother's supervision. The amended complaint fails to allege the deprivation of an interest protected by the Constitution.

B. Maintaining an Open Access Policy For Internet Use Does Not Constitute the Sort of Egregious Conduct that is Required to Give Rise to a Substantive Due Process Claim.

In its recent decision in County of Sacramento v. Lewis, 523 U.S. ___, 140 L. Ed. 2d 1043, the Supreme Court reaffirmed its holdings that "only the most egregious conduct" by government officials can result in a substantive due process violation. The Court emphasized that, to avoid placing improper limitations on the ability of government entities to carry out their functions, "for half a century now we have spoken of the cognizable level of executive abuse of power as that which shocks the conscience." Id. at 1057. Thus, "the due process guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm." Id. at 1059. "[O]ur concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience-shocking." Id. at 1060. Success on such a claim "requires [a showing of] an extraordinary departure from established norms." Dunn v. Fairfield Community High School Dist. No. 225, 158 F.3d 962, 966 (7th Cir. 1998).

Even before its decision in Lewis, the Supreme Court made clear that allegations such as those in the amended complaint here are plainly insufficient to allege arbitrary action by the government in a constitutional sense. See Collins v. Harker Heights, 503 U.S. at 115. In rejecting plaintiff's claim in Collins that the city had a constitutional obligation to provide a safe working environment for her husband, the Supreme Court noted: "Our refusal to characterize the city's alleged omission in this case as arbitrary in a constitutional sense rests on the presumption that the administration of Government programs is based on a rational decision-making process that takes account of competing social, political, and economic forces." 503 U.S. at 128. The city's conduct was therefore not conscience-shocking in constitutional terms. Id.; accord, Lewis, 140 L. Ed. 2d at 1057 (due process guarantee protects only against "the exercise of power without any reasonable justification in the service of a legitimate governmental objective); see also Glucksberg, 138 L. Ed. 2d at 810 (Souter, J., concurring) ( substantive due process claim requires absence of a substantively adequate justification for the state's action).

At the crux of plaintiff's complaint is her opposition to the library's open access policy. That policy, whether applied to books on the shelves or to Internet access, represents the considered judgment of the library's policy makers that "freedom of speech and expression are central to the successful maintenance of a free society" and that these interests, which are of constitutional dimension, are best served when "all members of the community have free and equal access to the entire range of library resources, regardless of content, approach, format or amount of detail." Access to Electronic Information Services and Networks Policy (Purpose), Ex. B to Complaint & App. A attached hereto. The library's Board of Trustees has determined that "[t]hese rights extend to all users of the public library including minors. Access to information is a fundamental right and helps guarantee an informed citizenry." Id. With respect to the provision of Internet access, the library has concluded that the Internet provides it with an "unprecedented opportunity" to fulfill its mission, and notes the growing importance of electronic resources "to students, workers and ordinary citizens." Id.

At the same time, the library's policy recognizes that the Internet may contain materials of a controversial nature, informs its patrons of that fact, and informs them that the library neither monitors nor has control over the information available on the Internet. Id. (Internet Access). The policy goes on to note that it is not technically feasible to prevent users "from accessing materials, messages or graphics that might be considered offensive to a user or inappropriate to minors . . . ." Id. "Library patrons use the Internet at their own risk." Id.

Finally, the library's governing board has addressed the question of who should assume responsibility for supervising the Internet use of minors. The policy explicitly informs its patrons that the library does not provide monitoring or supervision of minors' Internet use. The policy goes further, stating that it is the responsibility of parents to supervise their children's Internet use so that the material their children access is consistent with their own family's values. Id. (Responsibility of Users).

The library's decision to provide an environment that encourages intellectual growth and development free from the constraints of censorship can hardly be described as unrelated to legitimate governmental objectives. On the contrary, it serves to further core constitutional principles of freedom of expression. Nor can one quarrel with the library's conclusion that the obligation "to monitor and supervise children's use of the Internet in selecting material that is consistent with personal and family values" is most appropriately that of the parent, not the government. Parents hold wildly varying views about what is appropriate for their children, and what is not, at any given age. By leaving it to parents to supervise the Internet use of their children, the library has chosen a policy that allows for that diversity of viewpoint, rather than seeking a government-imposed decision that determines the range of materials available to minors.

The library's policy choice is supported by other sound reasons. For example, the library has correctly concluded that it is not technically feasible to prevent users from accessing "materials, messages or graphics that might be considered offensive to a user or inappropriate to minors." Id. (Internet Access). That conclusion is borne out by a recent federal court decision holding that a Virginia library's policy of requiring filters on library computers violates the First Amendment. Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 1998 U.S. Dist. LEXIS 18479 (E.D. Va. 1998). The Loudoun court noted that the filters blocked sites that indisputably did not contain material that was either obscene or harmful to minors. Id. at *14. Because software companies consider such information proprietary, the library did not even know what web sites were blocked or the criteria used in blocking them. Id.; see also Brief of Amici in Support of Defendant's Demurrer to Complaint at 2-3 (noting the impossibility of having librarians screen Internet sites and the severe flaws in blocking software that invariably blocks protected material while at the same time is incapable of eliminating all prohibited sites).³

Rather than being constitutionally prohibited, the library's open access policy is more likely constitutionally compelled. See, e.g., Reno v. American Civil Liberties Union, 521 U.S. ___, 138 L. Ed. 2d 874, 895, 897 (1997) (Internet entitled to very highest level of First Amendment protection); Pico v. Bd. of Educ., Island Trees Union Free Sch. Dist., 457 U.S. 853, 872 (1982) (plurality opinion) ("local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books"); Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-13 (1975) ("minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them"); Freedman v. Maryland, 380 U.S. 51 (1965) (requiring judicial determination of whether material is obscene); American Civil Liberties Union v. Reno, No. 98-5591 (E.D. Pa. Nov. 20, 1998) (issuing temporary restraining order against Child Online Protection Act which prohibits using the World Wide Web to make "any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors"); Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 1998 U.S. Dist. LEXIS at *29 (use of blocking software for library's Internet computers is content-based regulation of expression subject to strict scrutiny and therefore violates First Amendment). Rather than adopting a constitutionally suspect policy, the library chose a course of action that takes into account both the interests of parents and the First Amendment by simply requiring that parents undertake to supervise their children's Internet use. Such a choice is surely legitimate.

In the end, it was up to the policy-makers at the library to weigh the competing considerations at play here, including the risk that some parents might fail to supervise their children and that one of those children might abuse the trust placed in him by his parent. See Martinez v. California, 444 U.S. at 281 (fact that policy decision results in incremental increase in risk of harm "cannot be characterized as state action depriving a person of [substantive due process] just because it may set in motion a chain of events that ultimately leads to [harm to someone]."). Whatever may be the pros and cons of the library's decision to adopt an open access policy, one thing is certain: That decision cannot be said to have been "an abuse of executive power so clearly unjustified by any legitimate objective of [government] as to be barred by the Fourteenth Amendment." Lewis, 140 L. Ed. 2d at 1054; Martinez, 444 U.S. at 283 ("[w]hether one agrees or disagrees" with such a policy, "one cannot deny that it rationally furthers a policy reasonable lawmakers may favor."). The library's decision may not be second-guessed either by an irate parent or by this Court.

II. THE INJUNCTION PLAINTIFF SEEKS IS AN UNLAWFUL PRIOR RESTRAINT PROHIBITED BY THE FIRST AMENDMENT.

In her Prayer for Relief on her new cause of action, plaintiff seeks an injunction prohibiting the Livermore Public Library "from maintaining library premises at which children have the ability to access . . . obscene, sexual, and/or other material harmful to Brandon P. and other minors." Amended Comp. at 3 (emphasis added). This is an extraordinary request. First, the proposed injunction applies to all facets of the library's collection, not just to its provision of Internet services. Thus librarians would be required to monitor and supervise minors in the library at all times.

Moreover, the proposed injunction is not limited to material that is alleged to be illegal obscenity or harmful matter. Rather, it would apply to any material, regardless of its content, if that material is "harmful to Brandon P. and other minors." This undefined, standardless prohibition plainly trespasses on the First Amendment rights of minors, as well as the rights of adults. See Erznoznick v. City of Jacksonville, 422 U.S. at 212-13 ("minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them."). It includes a vast array of material that some would consider inappropriate for minors either because of its political content (e.g., hate speech, speech advocating the reform of drugs laws, speech on the topic of abortion), its depiction of violence, its depiction of what some might consider immoral conduct (e.g., novels portraying adulterous relationships or the relationship of a gay or lesbian couple), or any number of other topics deemed "harmful" for the consideration of minors. Plainly this Court may not issue such an injunction.

Even had plaintiff requested an injunction limited to obscenity or harmful matter, as those terms are defined by the Penal Code, it would still be impermissible. "[P]ermanent injunctions--i.e., court orders that actually forbid speech activities--are classic examples of prior restraints." Alexander v. United States, 509 U.S. 544, 550 (1993). As such, they come before the court bearing a heavy presumption against their constitutional validity. Vance v. Universal Amusement Co., 445 U.S. 308, 316 n.13 (1980) (quoting Bantam Books v. Sullivan, 372 U.S. 58, 70 (1963)).

The rule that injunctions prohibiting speech are unlawful prior restraints finds its origin in the Supreme Court's decision in Near v. Minnesota ex rel. Osborn, 283 U.S. 697 (1931). In Near, a newspaper publisher was found to have violated the state's public nuisance statute by publishing defamatory material. Id. at 704. In accordance with the statute, the court therefore enjoined the publisher from producing any future "malicious, scandalous or defamatory" publication. Id. at 706. Thus like the injunction plaintiff seeks here, "Near . . . involved a true restraint on future speech--a permanent injunction." Alexander v. United States, 509 U.S. at 550. Such injunctions are prohibited by the First Amendment. Near, 283 U.S. 697; cf. Vance v. Universal Amusement Co., 445 U.S. 308 (1980) (invalidating injunction enjoining exhibition of films without providing procedures for determining that they were obscene).

The vice in the injunction invalidated in Near, like the vice in the injunction plaintiff would have the court impose in this case, is that it enjoins the dissemination of expressive materials before there has been a judicial determination that those materials are unprotected by the First Amendment. Alexander v. United States, 509 U.S. at 551. While the state may punish those who are found to have violated its obscenity laws, courts may not enter a general injunction enjoining the violation of those laws. People ex rel. Busch v. Projection Room Theater, 17 Cal. 3d 42, 59, cert. denied sub nom Van de Kamp v. Projection Room Theater, 429 U.S. 922 (1976). In this sense, the United States Supreme Court has "interpreted the First Amendment as providing greater protection from prior restraints [in the form of injunctions] than from subsequent punishments [under the criminal laws]." Alexander v. United States, 509 U.S. at 554.

The California Supreme Court's decision in Busch is dispositive here. In Busch, law enforcement officers brought a civil action under the state's public nuisance statute to enjoin the exhibition of obscene books and films. 17 Cal. 3d at 47. In holding that the lower court erred in sustaining defendants' demurrers, the court ruled that plaintiffs' complaints stated proper causes of action to enjoin the exhibition and sale of specific materials once they had been adjudged obscene. Id. at 58. However, the court soundly rejected the notion that a finding that the bookstores had exhibited or sold some obscene materials would justify a broad injunction closing down the bookstores or generally prohibiting the sale of obscene materials:

While we have concluded that a court of equity, having determined particular magazines or films to be obscene, after a full adversary hearing, may enjoin the exhibition or sale thereof by those responsible, we emphasize that the closing of such bookstores or theaters, either temporarily or permanently, or the enjoining of the exhibition or sale on said premises of magazines or films not specifically so determined to be obscene, constitutes an impermissible prior restraint in violation of the First and Fourteenth Amendments to the United States Constitution.

Id. at 59. (emphasis added); see also Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 1998 U.S. Dist. LEXIS at *46-53 (use of filters constitutes unconstitutional prior restraint because of absence of sufficient standards for determining which sites may be blocked and absence of adequate procedural safeguards, including absence of provision for prompt judicial review of blocking decisions).

The amended complaint here is based on the theory that if plaintiff can prove that the web sites her son accessed at the library constitute obscene or harmful matter, she is entitled to the sort of broad injunction condemned in Busch: an injunction prohibiting the library from allowing access to any obscene or harmful matter without obtaining a prior adjudication that those materials, whether in printed or electronic format, in fact violate the state's obscenity and harmful matter statutes. As such, the complaint ignores the teachings of Busch.⁴

CONCLUSION

For the foregoing reasons, defendant's demurrer must be sustained and plaintiff's First Amended Complaint must be dismissed with prejudice.

Dated: December __, 1998 Respectfully submitted,

 

Ann Brick
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN CALIFORNIA

Christopher A. Hansen
Ann Beeson
AMERICAN CIVIL LIBERTIES UNION FOUNDATION

Elliot M. Minceberg
Lawrence S. Ottinger
PEOPLE FOR THE AMERICAN WAY FOUNDATION

 

By __________________________________

ANN BRICK

Attorneys for Amici Curiae

 

 

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1 In DeShaney, Joshua DeShaney was temporarily removed from his father’s custody after the Department of Social Services received complaints that he was being physically abused by his father. After investigating the matter, the Department returned Joshua to his father. During the next six months, Joshua’s social worker noticed suspicious injuries and the Department was notified by a hospital emergency room that it believed Joshua had again been physically abused. The Department took no action. A few months later, Joshua’s father again beat him, this time inflicting permanent and severe brain damage. Joshua and his mother sued the Department of Social Services claiming that it had deprived him of his liberty without due process of law by promising to protect Joshua but failing to come to his aid when it knew or should have known that his father was continuing to abuse him. The Supreme Court rejected Joshua’s claim, holding that the state had no constitutionally imposed duty to protect him from his father’s abuse. If the extreme facts in DeShaney did not give rise to a constitutional violation, there is no way that plaintiff’s allegations here can be construed to do so.

2 For the convenience of the Court, a copy of the Access to Electronic Information, Services and Networks Policy is also attached hereto as Appendix A.

3 For the convenience of the Court, a copy of our original brief is attached hereto as Appendix B.

4 In her response to our original amicus brief, plaintiff suggested that an injunction limiting the library’s provision of materials to its patrons would not implicate the First Amendment because the proposed injunction would affect only the actions of the library. Opposition to Demurrer of Defendant City of Livermore at 9. This argument misses the mark. The First Amendment protects both the right to disseminate expression, including the rights of those whose web sites would be blocked as a result of the proposed injunction, and the right to receive it. See Pico v. Bd. of Educ., Island Trees Union Free Sch. Dist., 457 U.S. at 866-67; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756-57 (1976). The undeniable effect of the proposed injunction here would be to deny library patrons access to presumptively protected material. Thus, the injunction "would tend to restrict the public’s access to forms of the printed [and electronic] word which the State could not constitutionally suppress directly. The [library’s] self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being [the result of a court-ordered injunction.]" Smith v. California, 361 U.S. 147, 154 (1959).