"A library is a mighty resource in the free marketplace of ideas." Minarcini v. Strongsville City School Dist., 541 F.2d 577, 582 (6th Cir. 1976). The value of this resource has been greatly strengthened by the advent of the Internet, which the Supreme Court has compared to "a vast library including millions of readily available and indexed publications." Reno v. ACLU, 117 S. Ct. 2329, 2335 (1997). In this regard, it is quite telling that the Supreme Court, in connection with restrictions on libraries, has emphasized that "the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge." Board of Education v. Pico, 457 U.S. 853, 866 (1982) (plurality op.) (quoting Griswold v. Connecticut, 381 U.S. 479, 482 (1965)).

However, by adopting what Defendants proudly acknowledge to be the most restrictive Internet access policy in the United States, they are seeking to do just that. On its face, the Policy on Internet Sexual Harassment ("the Policy") intends to "block," and thus exclude, constitutionally-protected information that otherwise would be available, and to do so in a manner that reduces the adult population to reading even less than what is fit for children. Such content-based restrictions directly contravene well-established Supreme Court precedent. Additionally, in promulgating and implementing the Policy, Defendants ignored readily available less restrictive alternatives that would have achieved their stated objectives. Far from fulfilling the purported goals, the Policy actually undermines Defendants' interests, and simultaneously exacerbates the constitutional violations, by requiring library employees to read over patrons' shoulders and to enforce the Policy against proscribed materials.

Apart from the merits of the constitutional argument, Defendants' Rule 12(b)(6) motion is glaringly inappropriate in this case and should be denied. / It is well established that , in passing on a motion to dismiss for failure to state a cause of action, the allegations of the complaint must be taken as true and construed favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Dismissal of a complaint is not permitted unless the defendant can demonstrate that no set of allegations will support the complaint. District 28, United Mine Workers of America, Inc. v. Wellmore Coal Corp., 609 F.2d 1083 (4th Cir. 1979). Similarly, dismissal is inappropriate where Plaintiffs' legal conclusions are supported by the pleaded facts even if the facts are also consistent with some other legal conclusion. Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989).

Defendants fail to even cite the controlling legal standard for dismissal in their memoranda, much less attempt to meet it. Accordingly, they are not really seeking to dismiss the Complaint based on inadequate allegations, but rather based on their characterization of "the proper analogy to the traditional library environment." Def. Mot. to Dismiss at 3. Defendants do not argue, as they could not, that public libraries are immune from First Amendment commands. Instead, they argue that their actions would not violate the Constitution to the extent the policy at issue might be viewed as a neutral "inter-library loan system" or a book acquisition policy. Id. at 3, 10. As explained more fully below, not only is Defendants' analogy and application of Pico flatly wrong based on the very terms of the Policy at issue, the facts pleaded and the nature of the Internet as definitively recognized by the Supreme Court, but also Defendants completely ignore other well established Supreme Court precedents which clearly demonstrate that the Policy's restrictions and burdens on constitutionally protected speech violate the First Amendment.

I. Defendants' Policy Violates Well-Established First Amendment Principles
Defendants' Internet Policy severely restricts access to constitutionally protected materials in the Loudoun County public libraries. It mandates the use of blocking software at all times for all users, regardless of age, without exception or individual choice, and expressly threatens library patrons with criminal enforcement if they attempt to access information that the staff summarily decides is in violation of the rules. Complaint ¶ 3. It also requires that Internet access be provided in the "full view" of library staff (and other patrons), thus depriving users of the ability to conduct research on confidential or personally-sensitive topics, such as health-related matters. Id. at ¶¶ 5, 7, 16, 79, 113-116.

Because implementation of the Policy depends in part on proprietary, third-party software, its censorship decisions are beyond the control of the library and are unrelated to any known legal standard. This has led to what may charitably be characterized as bizarre results. Plaintiffs have used the Internet terminals in Loudoun County libraries on various occasions in November and December 1997, and in January 1998, and have had access blocked to well over 100 Web sites that bear absolutely no relationship to pornography. Examples include Web sites maitained by the American Association of University Women, the AIDS quilt site, the Atomic Books website, the San Francisco AIDS Foundation web page, the University of Chicago Censorship Fileroom, the Religious Society of Friends, Quality Resources Online Books,the National Journal of Sexual Orientation Law, theYale University Graduate Biology Program, and a site on Roe v. Wade, among numerous others. / See Complaint ¶¶ 6, 97, 100, 105.

As these examples attest, Plaintiffs are not seeking to access obscene communications, or to demand, as Defendants quaintly describe it, "publicly financed peep shows in the Loudoun Library." Def. Mot. to Dismiss at 6. Indeed, Defendants' own survey of other Virginia libraries showed that there is no real threat of such a thing occurring. See e.g., Complaint at ¶¶ 64-65. In any event, Defendants' imagined horror stories notwithstanding, the Supreme Court has made clear that "[t]he interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship." Reno v. ACLU, 117 S. Ct. at 2351. The government is barred from restricting speech based upon an "'undifferentiated fear or apprehension of disturbance arising from such expression." Pico, 457 U.S. at 866 (quoting Tinker v. Des Moines School Indep. Community Dist., 393 U.S. 503, 507 (1969)).

A. The Policy Censors Constitutionally Protected Speech
Defendants' assertion that the Complaint fails to state a constitutional cause of action because "there is no case that sustains the right here claimed" / is plainly wrong. To the contrary, Defendants completely ignore a long line of Supreme Court precedents which are clearly applicable to the facts in this case and support Plaintiffs' claims. There is no requirement that a previous decision uphold the "exact right allegedly violated" for that right to be considered clearly established. / Quite to the contrary, "the absence of [many] reported case[s] with similar facts demonstrates nothing more than wide-spread compliance with well-recognized constitutional principles." Buonocore, 65 F.3d at 356-57 (quoting Eberhardt v. O'Malley, 17 F.3d 1023, 1028 (7th Cir. 1994)); see e.g., Complaint at ¶ 64 (none of the other libraries contacted by Defendants had adopted an Internet policy that required the use of blocking software); Ex. B, Krug Decl. at ¶¶ 11-12.

On its face, the Policy censors speech protected by the First Amendment. For more than four decades it has been the law of the land that "the government may not 'reduce the adult population . . . to reading only what is fit for children.'" Butler v. Michigan, 352 U.S. 380, 383 (1957). Ironically, Defendants' Policy purports to restrict Internet access by adults and children alike based on the Virginia "Harm to Juveniles" statute, despite the fact that it is clearly established that adults' rights cannot be so circumscribed. Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 389 (1988) (citations omitted); Commonwealth v. American Booksellers Ass'n, Inc., 372 S.E.2d 618, 622-623 (Va. 1988). More broadly, the Policy purports to ban from library Internet terminals any information that would violate Title VII of the Civil Rights Act, even though the Fourth Circuit has held that protected speech cannot be silenced on the analogous theory that it would create a "hostile learning environment." /

A motion to dismiss is particularly unsuitable in this case, where Defendants acknowledge that public libraries must comply with the First Amendment, see Def. Mot. to Dismiss at 8 ("Board of Education v. Pico, 457 U.S. 853 (1982) is . . . binding on this Court"), and that removing or restricting information may violate the Constitution. Numerous courts have affirmed that a First Amendment right to receive information is implicated by efforts to censor information in public libraries. / And, as is clear from the face of the Complaint, such censorship is taking place in the libraries of Loudoun County. E.g. Complaint ¶¶ 97, 100, 105, & 119.

Before June 1997, Defendants might have asserted that these bedrock First Amendment principles do not apply to the Internet. That, at least, was the theory upon which the federal government relied when it adopted the Communications Decency Act ("CDA"). But the Supreme Court struck down that law, holding that there is "no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium," and that the government could not justify "an unnecessarily broad suppression of speech addressed to adults" even though the CDA included statutory defenses based on "good faith, reasonable, effective and appropriate" actions to screen "harmful" material from minors. Reno v. ACLU, 117 S. Ct. at 2344, 2346, 2349 (1997). /

Moreover, the Policy fails to advance the Board majority's purported interests and Defendants rejected or ignored less restrictive alternatives to further their stated interests. For example, Defendants' primary stated objective of preventing "sexual harassment" of library employees or patrons is directly undermined by the Policy's requirement that the Internet computer terminals be placed "in close proximity to, and in full view" of library staff and by requiring library staff to monitor patrons' use of the Internet so as to identify, stop, and, if necessary, eject violators of the Policy by way of criminal trespass. See Complaint, ¶ 85. In addition, Defendants failed to consider any alternatives to address this concern such as placing the computer terminals in a private location or utilizing "privacy screens" and automatic "screen savers" that would prevent employees and patrons not using the Internet from viewing a user's computer screen. Id., at ¶¶ 65, 85. Defendants also have rejected or failed to consider less restrictive alternatives for addressing allegedly harmful material on the Internet, including Plaintiff Mainstream Loudoun's proposal to permit adults and families to decide whether or not to use an Internet filter in the library based on their own values and predilections.

Defendants disingenuously mischaracterize Plaintiffs' position as an "attack on the use of filtering software as an intrusion into parental rights." Defs.' Mot. to Dismiss at 25 n.27. Not only does Mainstream Loudoun fully support the use of such software as a matter of parental discretion in the home, but it also supported an optional filtering policy in the library which would have given parents and families the right to decide whether or not to use a filter consistent with their own values, not that of the Board majority. Id., at ¶ 85. Additionally, that Defendants' Policy does not further governmental interests is demonstrated by the fact that Defendants' Policy directly contravenes the Library Board's prior existing policies, for example, to guarantee that all ideas are available to all who seek them, to offer the widest possible diversity of views, to not exclude materials from the collection because of the nature of the information, and to ensure that the rights of parents will not be abridged or assumed by the library system. See ¶¶ 57-59.

In sum, Defendants completely ignore these well-established First Amendment precedents which directly support Plaintiffs' challenge to Defendants' Policy. Unlike Pico, which as discussed below also supports Plaintiffs' claims, these precedents attack Defendants' Policy as a government mandated policy of general applicability rather than as a decision to remove a specific book or books and thus need not inquire into whether Defendants' actions were based on suppressing particular ideas or views. Rather the terms of the Policy and its implementation themselves demonstrate the constitutional violation. Thus, Defendants' motion is without merit and should be denied.

B. Pico Fully Supports Plaintiffs' Constitutional Claims
Defendants' constitutional argument boils down to a single point: that under Pico, the library's selective exclusion of protected speech can be analogized either to a book acquisition or to an inter-library loan policy. But in light of Pico's facts, the resulting legal standard and the procedural posture of that case, Defendants could not have chosen a precedent less supportive of their position. The Supreme Court's decision in Pico highlights the illegality of Defendants' actions here.

First, the factual similarities between Pico and this case are striking. In Pico, over the advice of teachers and librarians in the school system, the school board decided to remove books that it concluded "'ontain obscenities, blasphemies, brutality, and perversion beyond description'." / In doing so, the school board ignored its existing library policies. 457 U.S. at 874-875. Moreover, implementation of its decision was not very precise, and the board's decision included one book -- A Reader for Writers -- that "contained no such [obscene] language." Id. at 873. Here, contrary to the recommendation of the Director of Library Services, the Library Board adopted a highly restrictive Internet policy that restricts constitutionally protected information. / As in Pico, the Internet policy here is inconsistent with established library policies. Complaint at ¶¶ 57-58, 61. Similarly, implementation is quite imprecise, and the Policy restricts access to a large number of informational resources that have nothing to do with its purported rationale. Id. at ¶¶ 6, 96-97, 105, 119-126.

Second, despite Defendants discourse on which of the opinions in Pico might properly be called the "plurality," Def. Mot. to Dismiss at 8, they acknowlege, as they must, that the decision invalidated the board's censorial policy. As a result, following Pico, it is clear that government bodies cannot exert control over public libraries in "a narrowly partisan or political manner" or impose "a political orthodoxy to which petitioners and their constituents adhered." 457 U.S. at 870, 875. Various courts have understood and applied the teaching of Pico. /

Defendants' pretextual references to blocking "pornography" or speech that transgresses Title VII notwithstanding, the Complaint makes clear that the Policy blocks a broad range of constitutionally protected expression. And contrary to Defendants' mischaracterization, the Complaint does not "acknowledge" content-neutral purposes for the Policy. See Def. Mot. to Dismiss at 10. Here, as in Pico, Defendants' motivations in adopting the policy are squarely at issue. / See, e.g.,Complaint at ¶ 62 (author of Policy expressing an interest in suppressing information on various subjects). Indeed, County Supervisor (and ex-officio Library Board Member) James Burton expressed his concern that "pornography has been merely used as an excuse to establish the structure by which this censorship can be imposed, with that structure being software controlled by unnamed individuals with unknown political, social, cultural and moral beliefs in a company in California." Id. at ¶ 99. / Indeed, the list of blocked Web sites, and even the criteria used for selecting sites to block, are treated as trade secrets by the software company, and are not disclosed to librarians in Loudoun County, even upon request. Complaint at ¶ 92; Ex. C, Bradshaw Dep. Tr. at 12-15.

Even if Defendants were serious about blocking access only to material that violates Virginia law or Title VII, it is not possible to do so using the means chosen by the Policy. Despite previous claims to the contrary, the vendor of the X-Stop Librarian software now disavows the ability -- or even the attempt -- to block only material proscribed by law. / Evidently conceding the impossibility of implementing the Internet Policy as written, Defendants now assert that Pico permits them to censor any materials that they consider to be "pervasively vulgar." Def. Mot. to Dismiss at 10. However, in addition to the fact that Defendants established a higher burden for themselves by writing statutory references into their Policy, "vulgarity" cannot be considered a sufficiently precise standard for regulating speech in the wake of Reno. See117 S. Ct. at 2344-2346 (describing constitutional infirmities of the "indecency" standard). And in any event, the Pico plurality's reference to "vulgarity" was applied to the specific context of a school library, as even the dissent acknowledged. 457 U.S. at 915 (Rehnquist, C.J. dissenting) ("Unlike university or public libraries, elementary and secondary school libraries are not designed for freewheeling inquiry").

Whatever else might be said about the complex nature of Pico, one aspect of the decision is crystal clear and supported by a majority -- the fact that summary judgment (or dismissal) in favor of the government is not permitted. Pico, 457 U.S. at 872-873 (Brennan, J.); id. at 882 (Blackmun, J., concurring in part and concurring in the judgment); id. at 883 (White, J., concurring in the judgment). Plaintiffs argue that the Policy as a government mandated policy of general applicability is unconstitutional for a variety of reasons, including the fact that it reduces adults to reading what is less than fit for children, is unsupported by a compelling governmental interest, is overbroad and vague, and fails to implement the least restrictive means of furthering the government's asserted interests. But it also is unconstitutional, under a Pico analysis, because of the improper motivations detailed in the Complaint. The unmistakable holding of Pico is that summary judgment cannot be granted in the government's favor for a case in this posture.

Finally, Defendants assert that there is no constitutional violation under Pico because of the library's asserted ability to unblock sites. However, to the extent "non-pornographic" or "non-discriminatory" Web sites were blocked as alleged in the Complaint, Defendants' voluntary cessation of a challenged practice does not deprive a federal court from its power to determine the legality of the practice. City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982); Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690, 696 (4th Cir. 1989). Nor does the asserted procedure for lifting an inappropriate block salvage the Policy's constitutionality. See Lamont v. Postmaster General, 381 U.S. 301 (1965); Finlator v. Powers, 902 F.2d 1158 (4th Cir. 1990). As described more fully below, the procedure described presents constitutional problems of its own. And, because Defendants have automated the censorship process and placed the initial decisions outside their control, the procedure for removing incorrect blocks can never keep up with the deluge of newly censored material. /

C. The Library's Policy is One of Censorship -- Not Selection
Defendants' all-or-nothing reliance on the facile comparison of their Internet Policy to a "typical" book acquisition or inter-library loan policy overstates the conceptual precision of the distinction, particularly in the Internet context. / But more troubling is their failure to show that the analogy is applicable to any library, much less the ones in Loudoun County.

Defendants' suggestion that they decided to allow selected portions of the Internet to enter Loudoun County libraries is untenable, both because of the nature of the medium and because of the way in which the Policy operates. The Internet is a "single, integrated system." Unlike most computer database systems, the computers on the World Wide Web are "linked together into a single whole." ACLU v. Reno, 929 F. Supp. 824, 838 (E.D. Pa. 1996), aff'd, 117 S. Ct. 2329 (1997); see Complaint at ¶ 35. "Though information on the Web is contained in individual computers, the fact that each of these computers is connected to the Internet through [World Wide Web] protocols allows all of the information to become part of a single body of knowledge." ACLU v. Reno, 929 F. Supp. at 836; Complaint at ¶ 31. The Loudoun County library system has acquired that body of knowledge and then selectively -- and arbitrarily -- deleted access to portions of it. / Indeed, specifically on point here, the Supreme Court properly found that the Internet's World Wide Web is "comparable, from the readers' viewpoint, to . . . a vast library including millions of readily available and indexed publications. . . ." 117 S. Ct. 2329, 2335. In purchasing basic Internet access, the Loudoun libraries and the County's residents obtained access to this vast library of materials. The Library Board then chose to purchase additional software in order to block out and exclude otherwise available, constitutionally protected information on the Internet that the Board majority found offensive and objectionable to them. Thus, the nature of the Internet as recognized by the Supreme Court and Defendants' Policy and actions clearly demonstrate that this Policy is not one of selection but rather of blocking and exclusion of disfavored materials.

Moreover, the fact that the Policy by its terms is to be enforced against library patrons who "access" material "violating the Policy" shows that the nature of the Policy is one of exclusion not selection. As Defendants have acknowledged, their chosen software will not block all the material prohibited by the Policy and thus they included the provisions forbidding library users to retrieve such materials under threat of potential criminal trespass sanctions. See ¶¶ 82-83.

Importantly, the Policy cannot legitimately be characterized as an "acquisition" or "selection" policy because the blocking software at issue "selects" nothing -- it only functions to censor material. Moreover, unlike any "traditional" book acquisition policy, the library in this case hasn't a clue which Web sites have been deleted, because the master blocking list is proprietary to Log-On Data Corp. Complaint at ¶ 92. Even if the library could gain access to the list at any given time, approximately 300 new blocked sites are added to the list each day, and there is no way for librarians in Loudoun County to determine what Web sites have been added to the "delete" list. Bradshaw Dep. at 135. Not only is the library completely ignorant of which sites are on the list, Log-On Data will not even disclose the criteria used to select Web sites for exclusion. /

For the same reasons, Defendants' novel comparison of this process to a "traditional inter-library loan" system breaks down. Where, as here, the library is utterly unaware which sites are blocked, it cannot be said to have exerted a choice about the material. In addition, the blocking Policy does not serve the same function as an inter-library loan policy. See Ex. E, Schneider Decl. at ¶  15 (Inter-library loan policies are not content based. Librarians do not to intercept and examine inter-library loan requests to see if they comply with the librarian's personal sense of appropriate reading, and do not arrange such services so that the patron's choice of reading material is on display for the world to see. Materials, as they are processed in and out of the library, are treated with a focus on patron confidentiality.).

It is not surprising, then, that Defendants' theories are repudiated by the American Library Association ("ALA"), the nation's premier organization of professional librarians, and by librarians most knowledgeable about the operation of blocking software. See generally Krug Decl. ¶¶ 10-12; Schneider Decl. ¶¶ 15-16. On July 2, 1997, the ALA Council adopted a Resolution on the Use of Filtering Software in Libraries, which affirmed that the use of filtering software by libraries to block access to constitutionally protected speech violates the Library Bill of Rights. Krug Decl. ¶ 11. In a related statement, issued on July 1, 1997, the ALA's Intellectual Freedom Committee listed some of the major problems with Internet filtering in public libraries. Among other problems, the statement pointed out that software filters impose content and viewpoint discrimination in violation of the First Amendment, that they can impose the producer's viewpoint on the community, that the criteria used to block Internet content are vaguely defined and subjectively applied, that such filters are products of exclusion rather than selection and that blocking Internet sites using such software is antithetical to the traditional mission of libraries. Id. at ¶ 12.

It also is striking that Defendants' litigation position of comparing the Internet blocking policy with other "traditional" policies is inconsistent with Loudoun County's own "traditional" policies. For example, it contradicts the policy entitled "Freedom for Ideas -- Freedom From Censorship" adopted by the Board. Complaint at ¶ 57. It also conflicts with the Board's "Policy on Collection Development," as well as the "Policy on Confidentiality," which, among other things provides that "[c]onfidentiality of all patrons' library use will be maintained." Complaint ¶¶ 58-59.

II. SECTION 230 OF THE COMMUNICATIONS DECENCY act does not immunize defendants' unconstitutional actions
The "Good Samaritan" provision of the 1996 Communications Decency Act, 47 U.S.C. § 230 (c)(2)(A), does not apply to the government's unconstitutional actions, does not preclude a cause of action brought under 42 U.S.C. § 1983, and does not eliminate the judicial review inherent to a request for injunctive or declaratory relief from a constitutional violation. Accordingly, the Court should summarily reject Defendants' assertion that when a local library board violates the Constitution, Section 230 provides an "absolute immunity for all defendants" from a cause of action. Def. Motion at 12.

A. Section 230 Does Not Immunize Government Censorship
Congress did not immunize governmental blocking of constitutionally protected speech when it adopted Section 230. / The purpose of the section was to immunize online service providers from tort liability for content that they did not produce, such as in a defamation claim. Thus, the legislative history states that Section 230 overrules cases such as Stratton-Oakmont Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup. Ct. 1995), in which a non-governmental interactive computer service had to pay damages after being found liable for the tort of defamation when it did not restrict information posted by a third party. See H.R. Conf. Rep. 458, 104th Cong., 2d Sess. 194. Because such burdens of litigation were limiting the efforts of private companies to edit content on the Internet, Congress concluded that "imposition of tort liability" was "another form of intrusive government regulation of speech." Zeran, 129 F.3d at 330. Given this backdrop, Defendants are mistaken when they assert that Congress intended for Section 230 to immunize government censorship of constitutionally protected information on the Internet. /

Even if the Court were to conclude, contrary to legislative intent, that Section 230 immunizes certain government violations of the First Amendment, Defendants' argument that such immunity is "absolute" is absolutely wrong. / Tellingly, Defendants cite no language from the statute or legislative history that supports a broad claim of absolute immunity, nor could they. As the Fourth Circuit has recognized, Section 230 "civil liability" immunity is intended, at most, to limit liability for tort-type damages arising out of actions taken in good faith. Zeran, 129 F.3d at 330. This limited immunity is utterly inapplicable to requests for declaratory or injunctive relief that do not seek damages (such as Plaintiffs') and to action not taken in good faith (such as Defendants'). 

B. Plaintiffs are Entitled to Relief Under Section 1983
Defendants' specific argument that Section 230 bars a claim brought under 42 U.S.C. § 1983 is without merit. Section 1983 provides a remedy for violations of federally protected civil and constitutional rights, and courts have limited its availability as a method of protecting constitutional guarantees quite narrowly, and only when Congress expressly foreclosed its use. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28 (1981); Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 19 (1981). Far from the required express limitation, Section 230 and its legislative history demonstrate that the type of civil liability it immunizes is distinct from the civil and constitutional rights violations redressable by Section 1983.

When the government violates constitutional rights, Section 1983 provides a remedial cause of action "unless the state actor demonstrates by express provision or other specific evidence from the statute itself that Congress intended to foreclose such private enforcement" of the right. Playboy Enters. v. PSC of Puerto Rico, 906 F.2d 25, 32 (1st Cir. 1990) (emphasis added) (quoting Wright v. City of Roanoke Redev. & Housing Auth., 479 U.S. 418, 423 (1987)) (finding that the Cable Act of 1984 did not expressly or impliedly preclude actions brought under § 1983). Congress is explicit when it precludes relief under Section 1983. For example, in the Cable Act of 1992, when Congress limited Section 1983 liability for First Amendment violations by cable television franchising authorities it expressly identified Section 1983 in the legislative history as its focus. Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 385, 102d Cong., 2d Sess., § 24, 106 Stat. 1460, 1500 (1992); S. Conf. Rep. No. 92, 102d Cong., 1st Sess. 49-50 (1991) reprinted in 1992 U.S.C.C.A.N. 1182-83. The Cable Act of 1992's detailed discussion of the limited form of Section 1983 immunity is utterly absent in Section 230 of the Communications Decency Act.

Contrary to Defendants' assertion that congressional intent to limit Section 1983 liability is "clearly expressed in unambiguous statutory language," Def. Motion at 13, there is no express or implied indication that Congress loaded Section 230 with the broad immunity from Section 1983 that Defendants claim. Absent an indication of clear congressional intent to restrict a private enforcement mechanism that protects constitutional liberties, the Court should not conclude that Congress intended to empower a municipality with unfettered discretion to censor the Internet. /

C. Section 230 Does Not Trump the Constitution
Defendants' most outrageous assertion is that Section 230 provides an "absolute immunity" that allows the Library Board to adopt and maintain a policy that violates constitutional rights. / Defendants' argument would turn the legal supremacy of the Constitution on its head by defining First Amendment rights by the terms of a local policy that a federal statute makes "absolutely immune" from judicial review.

Defendants' overreaching argument is undermined by the Supreme Court's recognition that any congressional action that would preclude adjudication of colorable constitutional claims is likely to violate Article III and the Due Process Clauses. A statute that eliminates all fora for review would violate Article III of the Constitution because it would circumscribe the federal courts' essential review functions under the constitutional mandate of separation of powers. See, e.g., Estep v. United States, 327 U.S. 114, 127 (1946) (Murphy, J., concurring); United States v. Nixon, 418 U.S. 683, 707 (1974). Likewise such a statute would deprive an individual of liberties without due process of law. Bartlett v. Bowen, 816 F.2d 695, 699 (D.C. Cir. 1987). Finally, the argument of absolute immunity under Section 230 impossibly assumes that when the Supreme Court reviewed the Communications Decency Act in Reno v. ACLU, it allowed Section 230 to survive as an end-run around the very First Amendment protections for Internet speech that the opinion established. /

III. Defendants' Standing Argument is Frivolous
Defendants' suggestion that Plaintiffs lack standing to bring this suit ignores First Amendment precedent and continues their improper reading of the Complaint. By barring Plaintiffs from some protected speech and imposing additional burdens on their ability to access other protected speech, Defendants have injured and will continue to injure Plaintiffs. Plaintiffs undoubtedly have standing in this case.

A. Plaintiffs Have Been Directly and Concretely Injured By Defendants' Policy
It is well settled that standing to pursue a claim requires that the plaintiff show an actual or threatened injury, traceable to the defendant, and redressable by the Court. Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) (quotations omitted). Equally well settled is that, as with the other arguments raised in Defendants' Motion to Dismiss, / the Court must accept as true all material allegations of standing in the Complaint and construe the allegations in the light most favorable to Plaintiffs. Pennell v. San Jose, 485 U.S. 1, 7 (1988) (quotations omitted). Standing should not be denied unless it appears beyond a doubt that no set of facts could establish standing. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Against this standard, Plaintiffs have more than adequately plead standing.

First, the Complaint specifically alleges, contrary to Defendants' assertions, that each of the individual plaintiffs ,/ and Plaintiff Mainstream Loudoun / have used and will continue to use the Library's Internet facilities and, thus, have been and will continue to be subject to the Policy. Consequently, if the Complaint alleges that the Policy causes injury, Plaintiffs have standing.

In fact, the Complaint alleges several First Amendment injuries caused directly by the Policy. First, the Complaint alleges that the Policy deprives Plaintiffs of access to protected speech, a classic First Amendment injury. E.g. Pico, 457 U.S. at 867 (the "right of freedom of speech and press . . . necessarily protects the right to receive it") (internal quotation omitted). Allegations of protected speech blocked by the Policy include the Quaker home page, Complaint ¶¶ 97, 100, the Yale University biology web site, id. ¶ 105, the Zero Population Growth web site, id., a Massachusetts Institute of Technology web site for "Ethics and Law on the Electronic Frontier, id., the Safer Sex Education web site, id., a Mormon Church web site, id., the Atomic Books web site, id. ¶ 119, and the National Journal on Sexual Orientation Law web site, id. Moreover, despite attempts by Defendants to forestall this suit by unblocking some or all of these protected sites as they learn of them from the Complaint or other sources, further allegations assert that additional protected speech remains blocked. / These additional allegations more than adequately plead First Amendment injury, especially in light of the Supreme Court's recognition that, "[a]t the pleading stage, general factual allegations of injury resulting from defendant's conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support a claim." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (quotation omitted).

Implicitly acknowledging that their policy blocks protected speech, Defendants argue that no injury occurs because, if presented with a formal written request, the Library will consider whether to unblock a specific site. But this mechanism, in and of itself, constitutes a second First Amendment injury. Requiring a party to take affirmative steps to receive protected material when such steps are not generally required constitutes First Amendment injury and, so, confers standing. See Lamont v. Postmaster General, 381 U.S. 301 (1965); Finlator v. Powers, 902 F.2d 1158 (4th Cir. 1990).

Lamont demonstrates Plaintiffs' injury here. Lamont held unconstitutional a statute that required the Postmaster General to detain certain disfavored speech (communist propaganda), notify the addressee of the detention, and deliver the mail only if the addressee returned a reply card requesting delivery. 381 U.S. at 301-302. The Court concluded that requiring this extra affirmative request to receive mail violated the addressee's First Amendment rights. Id. at 305. Notably, the Lamont plaintiffs did not request that their mail be released before they brought suit, id. at 304-05, but the Court neverthess found that they had suffered a concrete injury, id. at 305.

Lamont establishes that, rather than depriving Plaintiffs of standing, the Policy's unblocking request provision actually confirms it. The parallels between that case and this one are striking: the Library's blocking software matches Lamont's detention of mail; the Library's flashing violation screen equals Lamont's notification from the post office; and the Library's required unblocking request mirrors Lamont's required request that the detained mail be delivered. Thus, just as the mail detention procedure in Lamont, the Defendants' unblocking procedure -- even if not attempted by Plaintiffs -- is a concrete First Amendment injury.

Significantly, the Fourth Circuit has rejected the precise argument put forward by Defendants here, namely that for a plaintiff to have standing, it must follow a readily available procedure "guaranteed" to remove a content-based restriction on speech. Finlator, 902 F.2d at 1161-62. Reaching the same conclusion as Lamont, the court held that the additional burdens imposed by the procedure injure First Amendment rights and, so, confer standing. Id. at 1162. Id.

A third injury alleged by Plaintiffs includes the "stigma" harms created by the Policy. These range from inconvenient (requiring a second form of identification to access the Internet, Complaint ¶ 108) to annoying (requiring users to surrender their library cards, id. ¶ 109) to intrusive (recording users names, id. ¶ 111; and placing the terminals in locations where all research is visible, id. ¶ 113). As alleged, these Policy provisions chill research into highly personal matters such as health care, mental illness, personal finance, divorce, and bankruptcy. None of these additional burdens are placed on patrons who merely peruse the stacks, conduct research from books, or even check books out.

Lastly, the Complaint also alleges that the Policy interferes with parents' rights to determine what their children may view on the Internet, / thereby interfering with the parents constitutional right to decide what information their children receive. See Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925) (constitution protects liberty of parents and guardians to direct upbringing and education of their children). And, again contrary to Defendants' assertion, the Complaint specifically alleges that these children have and will continue to use the Library's Internet facilities. /

In light of these injuries, the Plaintiffs have standing in this case.

B. Mainstream Loudoun Has Standing To Sue In Both Its Own And Its Representative Capacity
As set out above, Mainstream Loudoun has asserted that it uses the Library's Internet facilities, is subject to the Policy, and, so, incurs the same First Amendment injury as the other Plaintiffs. This First Amendment injury suffices to confer standing on Mainstream Loudoun on its own behalf, so further allegations of economic injury as suggested by Defendants are not required. Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 262-63 (1977) (noneconomic injuries to associations confer standing).

Nevertheless, Mainstream Loudoun also has standing to sue on behalf of its members. This "representative" standing requires that (a) the association's members have standing to sue; (b) the interests that association seeks to protect are germane to its purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Washington Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). All these requirements are easily met here.

First, contrary to Defendants' assertion, the Complaint does allege that "[m]any members already have attempted to use, or intend to use the Internet . . . at the public library . . .." Complaint ¶ 13. Thus, they are subject to the Policy and are injured in the same manner set out above. Accordingly, just as Plaintiffs have standing, so would Mainstream Loudoun's members. Second, the Complaint alleges that the interests of Mainstream Loudoun are fully consistent with the objectives of this suit. Paragraph 12 states that Mainstream Loudoun's purpose is to "ensure that the public libraries continue to provide information and resources to serve the diverse needs of the entire community of Loudoun County residents in their quest for knowledge, inspiration, enjoyment, and excellence." This mission statement is fully in line with the relief sought here to increase the availability of diverse views in the Library.

Finally, nothing in this suit requires the participation of Mainstream Loudoun's individual members. If the required relief is granted, all its members will benefit from the increased availability of divergent views, a result consistent with Mainstream Loudoun's purpose as set out in the Complaint: "to ensur[e] a free and open society that preserves religious and personal freedom as established by the U.S. Constitution." Complaint ¶ 12. Thus, while Mainstream Loudoun's members may have divergent ideas on various social issues, they believe (and joined Mainstream Loudoun to ensure) that public institutions -- including libraries -- should give voice to all these views, not just a chosen few. And that is consistent with the purpose of this suit.

Thus, the divergent views cited by Defendants create, rather than defeat, Mainstream Loudoun's representative standing here. Far from evidencing a conflict, as asserted by Defendants, those views bind the membership together. Consequently, this is not a case such as Maryland Highways Contractors Ass'n v. State of Maryland, 933 F.2d 1246 (4th Cir. 1991), where the plaintiff association sought to disadvantage certain members at the expense of others. Here, the interest sought to be furthered by Mainstream Loudoun in this action is its reason to exist. Thus, no conflict exists and success by Mainstream Loudoun would further the goals of its entire membership.

Accordingly, Mainstream Loudoun has standing both on its own or its representative capacity to maintain this action.

Respectfully submitted,

___________________________
Robert Corn-Revere
Ronald J. Wiltsie (VSB #30389)
Eric H. Loeb
HOGAN & HARTSON L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600

Elliot M. Mincberg
Lawrence S. Ottinger
PEOPLE FOR THE AMERICAN WAY FOUNDATION
2000 M Street, N.W., Suite 400
Washington, D.C. 20036
(202) 467-4999

Counsel for Plaintiffs

Dated: February 13, 1998

I hereby certify that a copy of the foregoing Plaintiffs' Opposition to Defendants' Motion to Dismiss For Failure To State A Claim Or, In The Alternative, For Summary Judgment, was served by hand this 13th day of February, 1998 on Kenneth C. Bass, Venable, Baetjer and Howard, L.L.P., 1201 New York Avenue, N.W., Washington, D.C. 20005, counsel for Defendants.

___________________________
Ronald J. Wiltsie