No.CA-97-2049-A

In the
United States District Court
for the Eastern District of Virginia

Mainstream Loudoun, et al., Plaintiffs,

v.

Board of Trustees of the Loudoun County Library, et al., Defendants.

BRIEF IN SUPPORT OF MOTION TO INTERVENE AS PLAINTIFFS

INTRODUCTION

The Safer Sex Page, et al,. move, pursuant to Fed. R. Civ. Pro. 24 (a)(2) and 24(b)(2) for leave to intervene as plaintiffs. As required by Rule 23(c), a Proposed Intervenor Complaint accompanies the motion.

This case is a case of first impression involving important constitutional questions about the right to communicate and access constitutionally protected speech in the information age. It is the first case to consider whether the government can prevent Internet speakers from communicating valuable information on the Internet to citizens whose only access to online resources may be their local public library.

Plaintiffs are patrons of the Loudoun County Library, a public library system with six branches, which now provides access to the vast and worldwide educational resources of the Internet. Plaintiffs filed this case on December 23, 1997, alleging that the Internet access policy ("the Policy") enacted and implemented by defendants Board of Trustees of the Loudoun County Library ("the Board"), et al,. blocks them and other library patrons from access to constitutionally protected speech on the Internet. The Policy requires that "site-blocking software . . . be installed on all computers," and purports to use the blocking software to limit access to materials that are "pornographic" or "harmful to juveniles." The plaintiffs assert that the blocking software in fact blocks them from accessing a wide range of valuable, educational, and non-pornographic speech on the Internet.

Proposed intervenor plaintiffs ("intervenors") are speakers on the Internet's World Wide Web that are or have been recently blocked by defendants' use of blocking software in the libraries. Intervenors provide valuable, constitutionally protected speech free of charge on the Internet, including safer sex information, the full text of books that have subject to censorship attempts throughout history, newspaper columns and online magazines, educational and career resources for women, a list of books for gay and lesbian youth, and visual art. They seek to reach an audience that is worldwide, and that includes both adults and minors.

Defendants' Policy presumptively violates the First Amendment because it prevents Intervenors and other Internet speakers from communicating their constitutionally protected ideas and viewpoints to plaintiffs and other patrons of the Loudoun County Library. Defendants cannot meet their heavy burden to justify this blatant censorship. Even if defendants could establish a compelling interest in preventing certain patrons from accessing certain kinds of speech on the Internet, their use of blocking software is far from narrowly tailored to address this interest. Rather, defendants' use of blocking software results in exactly the kind of broad and crude censorship that the First Amendment was designed to prohibit.

The existing plaintiffs adequately represent the First Amendment interests of the patrons of the library. Intervenors seek to participate in this case in order to represent the First Amendment interests of the speakers whose speech is being blocked by defendants.

The Nature of the Internet

The Internet is a relatively new communications medium. In 1997, the Supreme Court affirmed the extensive findings of a three-judge court describing the Internet. Reno v. ACLU, __ U.S. __, 117 S. Ct. 2329 (1997) aff'g ACLU v. Reno, 929 F. Supp. 824 (ED Pa. 1996). The Internet is "an international network of networks." 117 S. Ct. at 2334. "It is a wholly new medium of worldwide human communication." Id., quoting 929 F. Supp. at 844. "The content on the Internet is a diverse as human thought." 117 S. Ct. at 2344, quoting 929 F. Supp. at 842.

The library offers its patrons access to "the best known category of communication over the Internet . . . the World Wide Web." 117 S. Ct. at 2335. In concrete terms, the Web consists of a vast number of documents published by millions of different speakers and stored in different computers all over the world. "The Web is thus comparable, from the reader's viewpoint, to . . . a vast library including millions of readily available and indexed publications." 117 S. Ct. at 2335.

Once a provider posts content on the Web, it is automatically available to all other Internet users worldwide. 929 F. Supp. at 844. The Supreme Court recognized that publishers have a somewhat different perspective on the Web from readers:

From the publishers' point of view, [the Web] constitutes a vast platform from which to address and hear from a world-wide audience of millions of readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can 'publish' information. Publishers include government agencies, educational institutions, commercial entities, advocacy groups, and individuals.

117 S. Ct. at 2335. One of the virtues of the Internet is that anyone can be a publisher. The Internet provides very low barriers to entry. 929 F. Supp. at 877. "[A]ny person with a phone line can become a pamphleteer." 117 S. Ct. at 2346.

People who access the Internet must search for the information they want. 117 S. Ct. at 2335 (describing the principal methods of searching through use of Web "addresses," "links," or "search engines"). Thus, although sexually explicit material is available on the Internet,

[u]sers seldom encounter such content accidentally. 'A document's title or a description of the document will usually appear before the document itself. . . and in many cases the user will receive detailed information about a site's content before he or she need take the step to access the document. Almost all sexually explicit images are preceded by warnings as to the content.' For that reason, the 'odds are slim' that a user would enter a sexually explicit site by accident.

117 S. Ct. at 2336, quoting 929 F. Supp. at 848, 844-45.

The Internet is fast becoming the library of the future, as more of the world's information is put online in a single, seamless body of knowledge. The American Library Association has noted that "[e]lectronic resources provide unprecedented opportunities to expand the scope of information to users." Access to Electronic Information, Services, and Networks: An Interpretation of the Library Bill of Rights. Many documents, including a growing number of government publications, are now produced only in electronic form and not in print. The National Telecommunications and Information Administration has concluded that public institutions, including libraries, "will play a critical role in assuring public access to the economic and social benefits of the Information Age, especially for those who do not have computers at home." Connecting the Nation: Classrooms, Libraries, and Health Care Organizations in the Information Age (1995).

The Intervenors' Speech on the Internet

Intervenors all provide speech free of charge on the Internet that has educational, literary, artistic, or social value for both minors and adults. Intervenors all provide speech that is constitutionally protected; none of the intervenors provide speech that is legally obscene or otherwise illegal. More specifically, Intervenors include:

Although defendants block intervenors' speech, they do not block a variety of web sites that express viewpoints contrary to the viewpoints expressed by Intervenors. For example, defendants do not block sites opposing homosexuality and transgender issues, and promoting abstinence rather than safer sex practices.

Defendants' Enactment of the Policy and Installation of the Blocking Software

Defendants' actions are more fully described in the plaintiffs' Complaint and in Intervenors' Proposed Complaint. Briefly, on October 20, 1997, defendants adopted the current "Policy on Internet Sexual Harassment" ("the Policy"), which states that Internet blocking software designed to block specific sites on the Internet "will be installed on all computers." The Policy states that the blocking software will "to the extent technically feasible" block "child pornography and obscene material (hard core pornography)" and "material deemed Harmful to Juveniles" or "soft core pornography." The Policy does not allow any patron, adult or minor, to access the Internet without blocking software under any circumstances.

Pursuant to the Policy, the library director purchased X-Stop, a blocking software produced by Log-On Data Corporation, a for-profit corporation, and installed X-Stop on all of the Internet access terminals at the libraries. X-Stop is created by an outside computer software vendor that has developed software that blocks specific sites on the Internet. Both the Loudoun County Library Director and the President of X-Stop, as well as counsel for defendants in their Motion to Dismiss, have admitted that X-Stop blocks sites that do not contain anything objectionable. Declaration of Cindy Timmerman, February 2, 1998, at ¶6, attached to Defendants' Motion to Dismiss for Failure to State a Claim Or, In the Alternative, For Summary Judgment ("Defs. Motion to Dismiss"). Intervenors vividly illustrate the deficiencies of the blocking software. None provide information that is "obscene" or otherwise unprotected. All provide information with educational, literary, artistic or social value for both minors and adults. All are or have been recently blocked by Defendants. Blocking software cannot be "fixed" to block only speech that is unprotected by the Constitution. There is simply no way for a computer software program to make distinctions between protected and unprotected speech.

ARGUMENT

I. INTERVENOR PLAINTIFFS HAVE A RIGHT TO INTERVENE PURSUANT TO RULE 24(a).

Rule 24 (a) provides that:

Upon timely application anyone shall be permitted to intervene in an action: . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

The Rule thus requires proposed intervenors to show that (1) the motion is timely; (2) intervenors have an interest in the case; (3) intervenors' interests may be impaired by the disposition; and, (4) existing parties will not adequately represent those interests. United Guar. Res. Ins. Co. V. Philadelphia Sav. Fund, 819 F.2d 473, 474 (4th Cir. 1987); see generally 3B Moore's Federal Practice, ¶24.07[1]. Considerations of judicial economy are afforded "no weight" by Rule 24(a).1 In re Sierra Club, 945 F.2d 776, 779 (4th Cir. 1991). Similarly, the court may not consider whether it believes intervenors will be helpful in addressing the issues in the case. Id. In this case, intervenors meet all four of the standards of Rule 24(a).

Timeliness:
There is no specific time within which a motion to intervene must be filed. See 3B Moore's Federal Practice, ¶24.13. In determining whether a motion is timely, the court should look at "how far the suit has progressed, the prejudice which delay might cause other parties, and the reason for the tardiness in moving to intervene." Gould v. Alleco, Inc., 883 F.2d 281, 286 (4th Cir. 1989). This motion is being filed within six weeks of the filing of the Complaint. Defendants have not yet answered. They have filed a motion to dismiss but that motion was filed only a few days ago. Although intervenors were aware that plaintiffs were considering litigation, intervenors did not learn until shortly before the Complaint was filed that plaintiffs would not include Internet speakers as well as library patrons. As soon as that fact became known, intervenors began immediately and diligently to determine the identity of potential intervenors and their interest in participating in this action. Under these circumstances, it is difficult to imagine an intervention motion that could be more timely or less prejudicial to existing parties. Accordingly, to the extent that timeliness is a factor independent of the other Rule 24(a) factors, 3B Moore's Federal Practice, ¶24.13, this motion must be considered timely.

Interest of intervenors:
The interests of the intervenors in this action are direct and obvious. Intervenors' speech has been censored by defendants. This interest would provide the basis for intervenors to bring a separate action against the library.2 Reno v. ACLU, 117 S. Ct. 2339; ALA v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997). It is thus more than adequate under the more relaxed standards of Rule 24(a). See Purnell v. Akron, 925 F.2d 941, 948 (6th Cir. 1991).

Intervenors' interests may be impaired:
The potential impairment of intervenors' interests is equally obvious. This case will determine whether it is constitutional for defendants to block intervenors' protected speech from reaching patrons in the Loudoun County Library. Intervenors' interests, and the interests of other Internet speakers, would obviously be impaired by a decision that defendants could continue to censor protected speech in the library. Such a decision would give wide latitude to Defendants to suppress viewpoints and ideas on the Internet with which they disagree, including the ideas of intervenors. The potential impairment of the interests of intervenors, as speakers whose ideas are currently barred, is evident. See Bantam Books v. Sullivan, 372 U.S. 58 (1963).

Intervenors' interests may not be adequately represented by existing parties:
In order for intervention to be granted, the court need not find that existing parties will not adequately represent the interests of the intervenors, only that they "may" not do so. In re Sierra Club, 945 F.2d at 779; Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10 (1972). The burden on prospective intervenors to meet that standard is "minimal." Trbovich, 404 U.S. at 538, n.10; Commonwealth of Virginia v. Westinghouse Elec. Corp., 542 F.2d 214 (4th Cir. 1976). That standard is easily met in this case.

First, intervenors represent entirely different parties than plaintiffs. Plaintiffs are patrons of the library; intervenors are Internet speakers. Second, although plaintiffs seek access to Internet sites that have been blocked, there is no way for Intervenors to ensure that plaintiffs would support access to all of their sites. Intervenors also lack any means to challenge the blocking of their sites at the library itself, because unlike plaintiffs they are not local residents.

Third, intervenors need only show that there are at least potential conflicts between plaintiffs and intervenors. United Guar. Res. Ins. Co. v. Philadelphia Sav. Fund, 819 F.2d at 476 ("while the interests of the Bank and Philadelphia may turn out to be the same, they may not be, and although the Bank's representation of Philadelphia's interest may be adequate, it may also be inadequate.") That potential exists in this case. Plaintiffs and intervenors both argue that the Policy is unconstitutional because it blocks access to speech that is constitutionally protected for adults, but plaintiffs' Complaint suggests that a less restrictive alternative to the Policy would be a requirement that parents give consent before their children access the Internet. Complaint at ¶69. The case potentially raises the issue of the rights of minors to access certain information without their parents' consent, and Intervenors seek to communicate with minors as well as adults. For example, it may be literally a matter of life or death for minors who are sexually active to obtain access to the type of safer sex information available on The Safer Sex Page. ACLU v. Reno, 929 F. Supp. at 871. The Books for Gay and Lesbian Youth Page is directly aimed at books of interest to minors who are gay or lesbian or who want more information about those subjects. Because the Policy challenged by plaintiffs and intervenors governs both adults and minors, any difference in addressing the question of minors' rights may prove irrelevant. Rule 24(a) is satisfied, however, by the mere potential for a difference to emerge between plaintiffs and intervenors.

Even if plaintiffs and intervenors end up supporting the same ultimate legal positions in this case, that would be insufficient to justify denial of intervention. The Fourth Circuit found that a district court abused its discretion when it denied intervention on the grounds that intervenors would adopt the same ultimate position on the merits as plaintiffs. In re Sierra Club, 945 F.2d at 780, citing Trbovich v. United Mine Workers, 404 U.S. 528, 538-39 (1972). In this case, even if intervenors and plaintiffs both ultimately seek the same remedy, they will do so from the different perspectives of speakers and listeners. See, e.g., FCC v. League of Women Voters, 468 U.S. 364, 377-78 (1984); Virginia State Board of Pharmacy v. Virginia Citizens' Consumer Council, Inc., 425 U.S. 748, 756 (1976); Procunier v. Martinez, 416 U.S. 396, 408-09 (1974); Kleindienst v. Mandel, 408 U.S. 753, 762-63 (1972).

II. THE COURT SHOULD EXERCISE ITS DISCRETION TO PERMIT INTERVENTION PURSUANT TO RULE 2 (b).

Rule 24 (b) provides that:

Upon timely application anyone may be permitted to intervene in an action: . . . (2) when an applicant's claim or defense and the main action have a question of law or fact in common. . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

Permissive intervention is largely within the discretion of the trial court. In exercising that discretion, the Rule requires the court to consider three factors. The first, whether the application is timely, has been addressed above. The second, whether intervenors have a question of law or fact in common, is clearly met in this case for the reasons stated above. The third requirement is that the intervention not "unduly delay or prejudice the adjudication of the rights of the original parties." This motion is being filed only a little over a month after the filing of the Complaint. Although a motion to dismiss has been filed by defendants, it raises many of the same issues that will be raised by intervenor's Complaint. Accordingly, the defendants will not be prejudiced by the granting of the motion. Indeed, because intervenors would be able to file a second case and pursue it independently from this case, it would be more efficient and less prejudicial to defendants to have both matters heard together.3 Accordingly, if the court finds that mandatory intervention is not appropriate, the court should exercise its discretion to permit intervention pursuant to Rule 24 (b).

III. DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' COMPLAINT RAISES SIMILAR ISSUES TO A LIKELY MOTION TO DISMISS INTERVENORS' COMPLAINT AND SHOULD BE DENIED.

Because intervenors have not yet been granted leave to file the proposed Complaint, defendants have obviously not filed a motion to dismiss intervenors' complaint. However, because defendants have filed a motion to dismiss plaintiffs' complaint, and it seems likely that many of the same issues would be raised in a motion to dismiss intervenors' complaint,4 intervenors would like briefly to emphasize two points of relevance to speaker-intervenors.5

First, defendants would have the Court believe that the First Amendment does not limit in any way the decisions of a public library to make information available to patrons. See Defs. Motion to Dismiss, at 3. The inescapable consequence of defendants' assertion would be that no constitutional violation would be stated if, as a matter of policy, a public library decided that only Democrats had valid ideas and therefore bought only books by Democrats; or if the library purged all books by non-Christians because no religion other than Christianity is valid. To borrow a phrase from defendants, "to state such a proposition is to refute it.6

Defendants misunderstand the fundamental First Amendment issue in this case. The issue in this case is not whether the First Amendment requires a public library to offer Internet access; the Loudoun County library system has chosen to offer that access. The issue is also not whether the First Amendment requires public libraries to purchase and stock every book ever written. Access to the Internet automatically provides library patrons with the ability to access to all of the information published on it, on every conceivable subject, by speakers all over the world. That is the power of the Internet.7 The issue is whether a public library can overcome the presumption of unconstitutionality that arises from its decision to block the communication of constitutionally protected speech on the Internet to library patrons.

To the extent that defendants retreat from their absolute view of the irrelevance of the Constitution to public libraries, they must concede that facts concerning the Policy, blocking software in general, and implementation of X-Stop are relevant to the issues in this case. For example, if there were a product that could reliably distinguish legally determined obscenity from other material, this case would raise different issues. Intervenors deny that such a product exists or could be created, but given defendants' rationale for their Policy, defendants would appear to have to argue the contrary. The inevitable factual disputes would make it inappropriate to grant the motion to dismiss.8

Defendants also rely on 42 U.S.C. § 230(c)(2)(A) (hereinafter §230). See Defs. Motion to Dismiss, at 12. That section states that a "provider . . . of an interactive computer service" may not be held "liable" for restricting access to material on the Internet "whether or not such material is constitutionally protected." Defendants suggest that this statute was an amendment to 42 U.S.C. §1983 and therefore has extinguished any cause of action that might exist under that statute. They further suggest that it is constitutional for Congress to abolish a statutory cause of action that enables individuals to sue for violation of constitutional rights. Finally, defendants imply that without the statutory cause of action, no cause of action would exist.

The Supreme Court has suggested that serious constitutional questions would arise if Congress were to attempt to extinguish a cause of action for violation of constitutional rights. Webster v Doe, 486 U.S. 592, 603 (1988).9 For that reason, the courts should presume that Congress has not done so, and should avoid interpretations of statutes that would preclude constitutional claims. Califano v. Sanders, 430 U.S. 99, 109 (1977); Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967); Johnson v. Robison, 415 U.S. 361, 373 (1973); Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 681 (1986). A showing of clear and convincing congressional intent is required to overcome the presumption that Congress did not intend to extinguish all causes of action and all remedies for violation of constitutional rights. Id. In this case, there is no legislative history suggesting that Congress intended such a drastic result.

In addition, there are at least three interpretations of the statute that avoid the constitutional issue. First, section 230 should be interpreted to permit suits for prospective injunctive relief when constitutional rights are violated even if Congress could preclude liability for damages -- a question this court need not resolve since neither plaintiffs nor intervenors are seeking damages. In that fashion, a cause of action is preserved even if all remedies would not be available.

Second, to avoid a constitutional question, section 230(e)(2) should be read to apply only to private libraries, and not to public libraries such as the Loudoun County Library. Third, the statute should not be read to immunize members of the board acting in their official capacity, even if it were read to immunize the library board as an entity. See Ex Parte Young, 209 U.S. 123 (1908).

If the court concluded that section 230 would not permit any of these interpretations, then the court would be required to address the very complex and difficult questions raised by Congress' attempt to extinguish any cause of action for violation of constitutional rights. First, the court would have to examine whether section 1983 is necessary for a cause of action to enforce constitutional rights. In Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), the Supreme Court held that even in the absence of §1983, which by its terms is inapplicable to federal defendants, a cause of action exists to enforce constitutional rights against federal defendants. If Congress were to attempt to repeal §1983, in whole or in part, an analogy to Bivens would suggest that a similar cause of action would exist to enforce the Constitution even in the absence of §1983. In the alternative, the court would have to determine if it was constitutional for Congress to extinguish any cause of action for violation of constitutional rights. Prior to reaching that conclusion, the court would also have to notify the Department of Justice and convene a three judge court to determine if section 230 is unconstitutional as applied to this case. Pub. L. No. 104-104, §561(a); Fed. R. Civ. Pro. 24(c); Reno v. ACLU, 117 S. Ct. 2339, n.29.

Because Congress did not provide clear and convincing intent to extinguish a cause of action for injunctive relief for violations of constitutional rights, and because interpretations of section 230 exist that would permit such a cause of action, the court should reject defendants' argument that section 230 precludes this case.

CONCLUSION

Intervenors urge the court to hear and decide the motion to intervene before defendants' Motion to Dismiss the Plaintiffs' Complaint, so that the interests of speakers as well as listeners can be heard in this case. For the reasons stated above, intervenors ask that their motion for intervention be granted.

Respectfully submitted,

Mary Bauer
AMERICAN CIVIL LIBERTIES UNION
OF VIRGINIA
6 North 6th Street, Suite 400
Richmond, Virginia 23219-2419

Ann Beeson
Christopher A. Hansen
Marjorie Heins
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street
New York, New York 10004
Attorneys for Plaintiffs-Intervenors

February 5, 1998

NOTES

1 In any event, considerations of judicial economy favor granting intervenors' motion. Intervenors have a sufficient interest that they could file their own, separate case. Economy would be served by one rather than two cases addressing the very similar issues.

2In reversing a district court for denying intervention, the Fourth Circuit noted that "without expressing any opinion on the question, it is at once apparent that a judgment in this case in favor of the insurance companies might be devastating as a practical matter to Philadelphia's own litigation on its own policies, even though in the last analysis, and years later, a judgment here might turn out not to bar Philadelphia's claim." United Guar. Res. Ins. Co. V. Philadelphia Sav. Fund, 819 F.2d 473, 478, n. 1 (4th Cir. 1987). The same might be said of the effect of requiring intervenors to file a separate action, that proceeded separately. As the Fourth Circuit suggested, this is not a desirable approach.

3 In a related context, the Supreme Court indicated its view of the burdensomeness of intervention in an appropriate case: "Intervention. . . subjects the union to relatively little additional burden. The principal intrusion. . . has already been accomplished, in that the union has already been summoned into court . . . Intervention in the suit. . . will not subject the union to burdensome multiple litigation, nor will it compel the union to respond to a new and potentially groundless suit." Trbovich v. United Mine Workers, 404 U.S. at 536.

4 If the court grants the motion to intervene, and defendants then move to dismiss intervenors' Complaint, intervenors will address these issues more fully in their response brief.

5 There is no question that intervenors have standing as speakers to contest policies and actions that result in suppression of their speech. See Virginia v. American Booksellers Ass'n, 484 U.S. 383 (1988); Reno v. ACLU, 117 S. Ct. 2329 (1997).

6 Intervenors agree with defendants that this is largely a case of first impression. Board of Education v. Pico is not directly on point, because Pico is heavily dependent on the broad discretion granted to school officials to prescribe and control school conduct in order to inculcate fundamental values in students. 457 U.S. 853, 863 (1982) (holding that school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books). The mission of a public library is very different that the mission of a public school. Pico nevertheless directly refutes defendants' argument that the First Amendment places no limits on library decisions.

7 The public library has been called "the quintessential locus for the receipt of information." Kreimer v. Bureau of Police for Morristown, 958 F.2d 1242, 1255 (3d. Cir. 1992). The very purpose of a library is to provide access to the widest possible range of information. When selecting books and other printed materials, the library is limited by its budget and shelf space, and must select and deaccession books accordingly. These limitations to not apply to the libraries' provision of access to the Internet.

8 Of course, on the motion to dismiss, the court must assume the facts as stated by the plaintiffs. Thus, the court must assume that the library is blocking constitutionally protected speech.

9 See also Bartlett v. Bowen, 816 F.2d 695, 699 (DC Cir. 1987)("a statutory provision precluding all judicial review of constitutional issues. . . would be an unconstitutional infringement of due process.")