IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
MAINSTREAM LOUDOUN, et al.,
Plaintiffs,
v.
BOARD OF TRUSTEES OF THE
LOUDOUN COUNTY LIBRARY,
Defendant.
____________________________________
THE SAFER SEX PAGE, et al.,
Plaintiffs,
v.
BOARD OF TRUSTEES OF THE
LOUDOUN COUNTY LIBRARY,
Defendant.Case No. CA-97-2049-A
PLAINTIFF-INTERVENORS' STATEMENT OF UNDISPUTED FACTS
PLAINTIFF-INTERVENORS' REPLY BRIEF IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
Defendant's Brief in Opposition to Plaintiff/Intervenors' Motion for Summary Judgment (Def. Opp. Br.), though heavy on rhetoric, confirms that the essential facts of this case are not in dispute. Defendant's Policy on its face forbids adults, under any circumstances, from accessing speech on the Internet that is "harmful to minors.<1> Under the Policy, Defendant allows the developers of X-Stop, using their own criteria, to decide what speech will be blocked in the libraries.<2> There is no judicial determination that the speech is unprotected before Defendant blocks it from library patrons through the use of X-Stop. In fact, by using X-Stop, Defendant blocks speech from reaching library patrons without even knowing what or why the speech is blocked.<3> Defendant admits again that it has blocked and will continue to block speech that is clearly protected for adults and for minors.<4> Furthermore, Defendant admits that X-Stop fails to prevent patrons from deliberately accessing speech on the Internet that violates the Policy.<5> Given these undisputed facts and the longstanding First Amendment principles that apply to this case, Defendant's Policy must be struck down as a matter of law because it clearly violates the free speech rights of Intervenors and Plaintiffs.
I. Defendant Has Failed to Put Into Dispute Any Relevant and Material Facts
The requirements for summary judgment are clear; it is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgement as a matter of law." FRCP 56(c). In this case, Intervenors' and Plaintiffs' Motions for Summary Judgment are supported by competent and substantial evidence. In opposition, Defendant "may not rest upon mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." FRCP 56(e).
Rather than providing any specific facts to show a genuine issue for trial, Defendant's primary argument against summary judgment appears to a perceived need for "a complete record and comprehensive decision . . . through a full evidentiary hearing." Def. Opp. Br. at 2-3.<6> But "[s]ummary judgment . . . is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also Thompson Everett, Inc. v. National Cable Advertising, L.P., 57 F.3d 1317, 1322 (4th Cir. 1995) (holding that summary judgment is "particularly well-suited" for sorting out mixed questions of fact and law and is not disfavored simply because a case is complex).
None of the evidence submitted by Defendant in opposition to summary judgment creates a genuine question of material fact relevant to this case. "The mere existence of some disputed facts does not require a case to go to trial. The disputed facts must be material to an issue necessary for the proper resolution of the case". Thompson Everett Inc., supra at 1323 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). As discussed more fully below and in Intervenors' opening brief, the undisputed facts in this case clearly establish that Defendant's Policy violates the rights of Intervenors to communicate their constitutionally protected speech to patrons of the Loudoun County Library.
A. The Availability of Sexually Explicit Material on the Internet Does Not Create a Dispute of Material Fact.
Defendant contends that there is a dispute of material fact because Intervenors have not stipulated that there is legally obscene material available on the Internet.<7> Def. Opp. Br. at 5. But Intervenors' unwillingness to stipulate to a legal conclusion regarding whether certain content on the Internet is obscene creates no dispute of fact. Intervenors do not dispute that there is sexually explicit material available on the Internet. Ex. 1 to Def. Opp. Br. ( Plaintiff- Intervenor's Response to Defendant's First Request for Admissions). Likewise, Defendant does not dispute and has admitted that there are no cases in Virginia in which material on the Internet has been judicially determined to be obscene or harmful to minors. Ex.13 to Plaintiff- Intervenors' Motion for Summary Judgment (Int. S.J. Motion) (Def's Response to Pl. 1st Request for Admissions, ##20, 22, 24, 26, 29, 30).
Defendant also attempts to create a dispute about the amount of sexually explicit material on the Internet. Defendant has not submitted any evidence of a problem with Loudoun County library patrons accessing such material, though it has admitted that such material is still available with X-Stop running. Ex. 6 to Int. S.J. Motion (Henderson Dep., 6/12/98, at 413-414, 504-505); Ex. 22 to Def. Opp. Br. (9/14/98 Memo from Timmerman regarding web sites which X-Stop did not block). The amount of such material available on the Internet generally is thus irrelevant to the central issue in this case, which is whether Defendant's Policy is narrowly tailored to achieve any compelling interest. Thus, there is no need for the court to view additional samples of material similar to that submitted by Defendant under seal, see Def. Opp. Br. at 10 and Exs. 4-14 (sealed), and such a display would be irrelevant, cumulative and unfairly prejudicial.<8>
Defendant also attempts to create a material factual dispute about whether or not a site identified by Intervenors' witness Alpna Cassidy Sehgal is "obscene." In her deposition Ms. Sehgal testified that twenty-six sites blocked by X-Stop on July 15, 1998 did not contain sexually explicit or pornographic material. Sehgal Dep. at 100 (Exhibit 1 attached). As Defendant points out, one of those websites in fact did contain sexually explicit material.<9> Def. Opp. Br. at 8-9. While immaterial to this case for the reasons stated above, Intervenors do not dispute that this site is sexually explicit, and have not proffered it as an example of valuable speech that is blocked by the Policy. See Statement of Undisputed Facts in Support of Plaintiff-Intervenors' Motion for Summary Judgment (Int. SUF) at ¶¶397-458.
B. It is Undisputed that X-Stop Blocks Speech Without Defendant's Knowledge or Participation.
Defendant next tries to create a factual dispute regarding its delegation of blocking decisions to X-Stop by referring to the library staff's ability to unblock a particular site if it comes to their attention. But the facts regarding X-Stop's role and the Defendant's ability to unblock a particular site are not in dispute. Library Director Douglas Henderson admits that "the blocking libraries downloaded from the X-Stop server may include blocks of certain URLs that, if we knew about them, we would not block." Ex. 15 to Def. Opp. Br. (Henderson Decl. ¶18). Far from being in conflict, the record is filled with uncontroverted evidence establishing conclusively that many web sites containing constitutionally protected speech are blocked without library staff ever being made aware that these sites exists. See Int. SUF at §§III.C.-D.; discussion at Int. S.J. Motion §I.E. The fact that Defendant has unblocked sites almost exclusively brought to its attention by this lawsuit does nothing to controvert the facts establishing the Policy's continuing impact on protected speech. See Int. S.J. Motion at §II.A.2.; Plaintiff-Intervenors' Opposition to Defendant's Motion for Summary Judgment ("Int. Opp. Br.") at 10-11.
C. There Is No Factual Dispute Relevant to the Court's Analysis of Whether the Policy Is Narrowly Tailored.
In its attempt to manufacture a factual dispute about whether the Policy is the least restrictive alternative, Defendant has revealed that the question is ultimately one of law, not of fact. Defendant claims that it has "decided to seek a prospective solution and prevent the problem rather than rely on retrospective punishment" while it complains that Intervenors "would instead deal with the problem after it occurred through means such as prosecution or eviction." Def. Opp. Br. at 13. Defendant largely ignores, and provides no evidence to controvert, any of the alternatives discussed in Dr. Janes's Declaration and the successful approaches to unfiltered Internet access discussed in the declarations of the three Virginia library directors. See Janes Decl.; Hehman Decl.; Murphy Decl.; Reed Decl. Intervenors do not dispute the relevant facts in Mr. Burt's report about the operation of X-Stop, but rather disagree with the legal conclusion Mr. Burt draws from those facts -- that the Policy is the least restrictive alternative. It is for the court to decide, considering the available and undisputed alternatives, whether an unreviewed prior restraint of constitutionally protected speech is the least restrictive means of achieving Defendant's alleged interests. See also infra at §III.B.
D. The Evidence Is Undisputed That Defendant Has Blocked and Will Continue to Block A Wide Spectrum of Protected Online Speech
The Defendant has not presented any evidence to dispute its blocking of hundreds of web sites containing protected speech, including the online speech of all of the Intervenors. <10> See Int. SUF at §IV.A.; Int. Opp. Br. at §I.A. Rather, Defendant now attempts to explain away all of its errors as installation problems. Def. Opp. Br. at 18; Ex. 22 to Def. Opp. Br. (Timmerman Decl. at ¶¶ 5-7). There is voluminous and uncontroverted evidence about protected speech that Defendant has blocked. Int. SUF at §IV.A. There is undisputed evidence that sites were blocked long after the X-Stop "installation period" -- indeed, in the last two weeks. Id. at ¶¶422-458; Ex. 22 to Def. Opp. Br. (9/9/98 memo re unblocking sites attached to Timmerman Decl.). There is uncontroverted evidence that the Policy is likely to block protected speech in the future. Int. SUF at ¶¶12, 31, 47, 59, 78, 94, 113, 127. In light of this overwhelming evidence, whether Defendant's justification is adequate to explain its ongoing violation of the First Amendment is a legal question for the Court and not a material factual dispute.
E. There is No Genuine Issue of Fact Regarding Defendant's Conformance to Other Library Policies
There is no dispute of material fact created by Defendant's assertion that libraries do not acquire hard core pornography as part of their collection. Def. Opp. Br. at 21. Defendant has merely rephrased its legal argument that blocking software is akin to library acquisition rather than removal. This is not a question of fact, but one of law already settled by this Court. Mainstream Loudoun v. Bd of Trustees of the Loudoun County Library, 2 F. Supp. 2d 783, 794 (1998) ("the Library Board's action is more appropriately characterized as a removal decision").
F. The Ability of Library Patrons To Obtain Unfiltered Internet Access Elsewhere Is Irrelevant to This Case.
It is hornbook law that "one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised some other place." Schneider v. New Jersey, 308 U.S. 147, 163 (1939). Thus, Defendant's claim that the Fairfax County Library does not filter the Internet is wholly irrelevant. See discussion infra at 13-14.
G. There Is No Genuine Issue of Material Fact About Whether Unfiltered Internet Access Would Cause Problems For The Library.
Defendant's claim that "common sense and reality will convince any reasonable person" that unfiltered access to the Internet will create lawless behavior in the Library is not evidence that creates a dispute of material fact. Adams v. Drew, 906 F. Supp. 1050, 1060 (E.D. Va. 1995) (nonmoving party cannot create "a genuine issue of material fact through mere speculation" and an inference cannot be drawn from a claim that the "risk was obvious"). While Defendant cites anecdotal evidence of problems allegedly encountered elsewhere, the evidence is irrelevant because Defendant admits its Policy does not prevent access to sexually explicit material. See Ex. 21 to Def. Opp. Br. (Burt Rep. at 23); see discussion infra at 17. In addition, Defendant's evidence does nothing to contradict the evidence from three Virginia librarians about their successful approaches to unfiltered Internet access. See Reed Decl.; Murphy Decl.; Hehman Decl.
II. The Policy Imposes a Prior Restraint on Protected Speech
Defendant has not challenged any of the facts which clearly establish that the Policy imposes a prior restraint on protected speech. See Brief in Support of Plaintiff-Intervenors' Motion for Summary Judgment ("Int. S.J. Br.") at §§I.D. - I.E.; II.A. In fact, Defendant admits again that X-Stop continues to block speech that is protected by the Constitution. See Ex. 15 to Def. Opp. Br. (Henderson Decl. at ¶18) ("We are, of course, aware that the blocking libraries downloaded from the X-Stop server may include blocks of certain URLs that if we knew about them, we would not block."); Ex. 22 to Def. Opp. Br. (Timmerman Decl. Ex. A: 9/9/98 memo from Timmerman requesting that library staff unblock another 16 sites). Defendant's Opposition Brief argues instead -- incorrectly -- that Intervenors and Plaintiffs have the law wrong. First, Defendant argues that a public library, like the postal service, can refuse to carry obscene material, citing Roth v. United States, 354 U.S. 476 (1957).<11> Def. Opp. Br. at 30. But Roth merely upheld the constitutionality of a criminal obscenity statute -- it did not authorize the post office to restrain publications that had not yet been judged obscene. Directly on point is the later case of Blount v. Rizzi, 400 U.S. 410 (1971), in which the Court explicitly overturned a federal statute which authorized the Postmaster General to "halt use of the mails . . . for commerce in allegedly obscene materials" because the law violated the First Amendment prohibition against prior restraints. Just as Intervenors have pointed out that Defendant's Policy does not come close to providing adequate procedural safeguards, see Int. S.J. Br. at §II.A.2., the Court in Blount v. Rizzi noted that the scheme authorizing the Postmaster General to halt allegedly obscene mail "has no statutory provision requiring governmentally initiated judicial participation in the procedure which bars the magazines from the mails, or even any provision assuring prompt judicial review." Blount v. Rizzi at 417-18. As the Court stated, "Our insistence that regulations of obscenity scrupulously embody the most rigorous procedural safeguards . . . is . . . but a special instance of the larger principle that the freedoms of expression must be ringed about with adequate bulwarks." Id. at 416 (quoting Bantam Books v. Sullivan, 372 U.S. 58, 66 (1963)). Defendant's Policy censors much more speech than the law struck down in Blount v. Rizzi, because it admittedly blocks valuable speech that is nowhere close to the line of unprotected speech; it is thus unquestionably an invalid prior restraint. See Int. SUF at §IV.A.;<12> Int. S.J. Br. at §II.A.
Defendant next tries to narrow the prior restraint doctrine in order to exclude the Policy from coverage. For example, Defendant suggests the doctrine applies only if "a government body tires [sic] to prevent, or license, speech before it can be uttered within the jurisdiction of that government" or if a government uses "its police power to suppress absolutely certain utterances and to seize all copies of the publication in that jurisdiction." Def. Opp. Br. at 40.<13> This narrow reading ignores several important Supreme Court cases and misunderstands the central purpose of the doctrine. For example, Defendant conveniently ignores Bantam Books, 372 U.S. at 69, in which the Supreme Court applied the prior restraint doctrine to invalidate a censorship scheme with facts strikingly similar to the present case. See also Int. S.J. Br. at 16-20. In Bantam Books, book publishers challenged the actions of a Rhode Island morality commission whose purpose was to recommend prosecution of obscenity; the commission sent notices to booksellers to warn them that the Commission had found certain books they sold to be "objectionable." Bantam Books, 372 U.S. at 62-63. The State argued that there was no First Amendment violation because the commission "d[id] not regulate or suppress obscenity but simply exhort[ed] booksellers and advise[d] them of their legal rights." Id. at 66. In response, the Court wrote, "It is true that appellants' books have not been seized or banned by the State . . . . But . . . the record amply demonstrates that the Commission deliberately set about to achieve the suppression of publications deemed 'objectionable' and succeeded in its aim." Id. at 67. The Court went on to reject the commission's actions as an unconstitutional prior restraint:
What Rhode Island has done, in fact, has been to subject the distribution of publications to a system of prior administrative restraints, since the Commission is not a judicial body and its decisions to list particular publications as objectionable do not follow judicial determinations that such publications may lawfully be banned. Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.
Id. at 69. Thus, the fact that Defendant has not "seized" Intervenors' speech in no way cures the Policy's defects. Just as the commission's "warnings" in Bantam Books led booksellers to stop distributing certain books in Rhode Island, the Policy in this case is an invalid prior restraint because it has prevented and will inevitably continue to prevent Intervenors and others from communicating their speech to library patrons. See Int. S.J. Br. at 16-20.
In fact, Defendant's Policy "is indistinguishable in its censoring effect from the official actions consistently identified as prior restraints in a long line of [Supreme] Court[] decisions." Southeastern Promotions v. Conrad, 420 U.S. 546, 552 (1975). The Policy suffers the central vice of a prior restraint identified in previous cases: it gives "public officials the power to deny use of a forum in advance of actual expression." Id. at 553. Thus, the Supreme Court condemned as a prior restraint a municipal board's denial of permission for performance of the rock musical "Hair" at a city auditorium. Id. at 552; see also id. at 552-555 and cases cited therein; Shuttlesworth v. Birmingham, 394 U.S. 147 (1969) (invalidating standardless parade permit ordinance); Cantwell v. Connecticut, 310 U.S. 296 (1940) (invalidating law that proscribed charitable solicitation absent a permit).<14>
Finally, Defendant says the Policy is not a prior restraint because "Loudoun residents can view the blocked materials in Loudoun in their homes, offices or indeed in any other location...." Def. Opp. Br. at 40-41. But, as the Supreme Court noted in Southeastern Promotions, "Whether petitioner might have used some other, privately owned, theater in the city for the production is of no consequence. . . . '[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Id. at 556 (quoting Schneider v. State, 308 U.S. at 163).
III. Defendant's Policy Is Clearly Subject to Strict Scrutiny
A. Defendant's Reliance on Other Legal Standards is Misplaced
In yet another attempt to ignore the law of this case -- that Defendant's Policy "must be justified by a compelling governmental interest and must be narrowly tailored to achieve that end," Mainstream Loudoun v. Bd of Trustees of the Loudoun County Library, 2 F. Supp. 2d 783, 795 (1998) -- Defendant flings several new legal theories into its Opposition Brief, all of which are inapplicable and merely confuse the real issues in this case.
First, Defendant argues that the Policy does not suppress speech but merely "restrict[s] use of government resources for transmission of certain speech through a specific channel." Def. Opp. Br. at 31-32 (citing National Endowment for the Arts v. Finley, 118 S. Ct. 2168 (1998)). But this case does not involve the allocation of limited government funds.<15> As this court has already held, "by purchasing Internet access, each Loudoun library has made all Internet publications instantly accessible to its patrons." Mainstream Loudoun, 2 F. Supp. 2d 793. Thus, although "the Library Board need not provide access to the Internet at all," id. at 795, . . . "[h]aving chosen to provide access . . . the Library Board may not thereafter selectively restrict certain categories of Internet speech because it disfavors their content." Id. at 795-796.
Next, Defendant argues that strict scrutiny does not apply because the library is a non- public forum, wrongly citing Kreimer v. Bureau of Police, 958 F.2d 1242, 1248 (3d Cir. 1992) (upholding regulation that prevented patrons from "harass[ing] or annoy[ing] others through noisy or boisterous activities"). But Kreimer rightly held that a public library is a limited public forum, whose very purpose "is to aid in the acquisition of knowledge.<16> 958 F.2d at 1261. And as the Supreme Court has held on several occasions, and Defendant itself notes, see Def. Opp. Br. at 37, content-based regulations of speech in limited public fora are subject to strict scrutiny. See International Soc'y for Krishna Consciousness v. Lee, 505 U.S. 672, 678 (1992).<17> The court in Kreimer applied a "reasonableness" standard rather than strict scrutiny only because the challenged regulation prohibited behavior that was inconsistent with "the purpose for which the Library was opened." Id. at 1262. In contrast, the Policy challenged in the present case directly suppresses the kind of speech that public libraries were created to facilitate -- the communication of valuable speech between willing speakers and willing listeners. See Janes Decl., ¶¶5, 8; Hehman Decl., ¶4; Reed Decl., ¶4. For the reasons discussed in Intervenors' opening brief, strict scrutiny applies, and the Policy clearly fails the test.<18> See Int. S.J. Br. at §II.B.
B. There is No Factual Dispute Relevant to the Court's Analysis of Whether the Policy is Narrowly Tailored
Finally, Defendant argues against Summary judgment by attempting to create a factual dispute about whether the Policy is narrowly tailored to achieve its alleged interest. Intervenors agree that this issue will require the Court to consider both the facts regarding available alternatives to the Policy and the law of strict scrutiny. While the parties clearly disagree on the legal conclusion that should be drawn from the facts, see Int. S.J. Br. at §II.B., there is no genuine issue in dispute regarding the relevant facts. Importantly, Defendant does not contradict any of the alternatives discussed in Dr. Janes's Declaration nor the successful approaches to unfiltered Internet access discussed in the declarations of the three Virginia library directors. See Janes Decl.; Hehman Decl.; Murphy Decl.; Reed Decl.
Defendant asserts that the purpose of the Policy is to prevent access to illegal material, Def. Opp. Br. at 26, but Defendant still fails to provide any evidence that patrons have ever attempted to access potentially illegal speech in the Loudoun libraries, and fails to explain why existing criminal laws are not more narrowly tailored to deal with such a problem.<19> See Int. S.J. Br. at 27. In any event, the facts establish that the Policy is woefully ineffective at preventing deliberate access of sexually explicit speech because blocking software fails to block many sites that contain such speech. See Int. SUF at §IV.B. To the extent that sexually explicit material is available on the Internet, a determined user will have no problem finding it even with the blocking software running. Id. at ¶¶476-477 (Sehgal Decl.) Defendant's own witness, David Burt, admits that "what [he] found most striking about X-Stop Librarian II is the large amount of sexually explicit material that the viewer was allowed to see". Ex. 21 to Def. Opp. Br. (Burt Rep. at 23). Internet use policies that prohibit disruptive behavior are a more effective and less restrictive alternative to the Policy's wholesale blocking of protected speech before any problem occurs. See Janes Decl., ¶¶47-48; Hehman Decl., ¶¶7, 10; Murphy Decl. Ex. 1; Reed Decl., ¶¶13-14.
To the extent that Defendant is concerned about inadvertent access to sexually explicit materials, Def. Opp. Br. at 23, it has provided no evidence to support that concern. Mr. Burt's anecdotes involve a few unconfirmed press reports of patrons deliberately accessing sexually explicit material at libraries, which, as discussed above, the Policy would do nothing to eliminate. See Def. Opp. Br at 23-24. Defendant has not disputed any of Intervenors' evidence regarding librarian-developed alternatives to help library patrons avoid unwanted content. See Int's S.J. Br. at §II.B.3.; Janes Decl., ¶¶13-50; Murphy Decl., ¶¶6-11. Intervenors do not dispute the relevant facts in Mr. Burt's report about the operation of X-Stop, but rather disagree with the legal conclusion Mr. Burt draws from those facts -- that the Policy is the "least restrictive alternative." Intervenors believe that it is for this court to decide, weighing the undisputed alternatives, whether Defendant's Policy meets the rigorous standard the First Amendment requires when protected speech is at stake.
Because there are no genuine issues of material fact in dispute, and because the Policy's broad and crude censorship scheme is far from narrowly tailored to achieve any compelling government interest, Intervenors ask the court to grant Summary judgment to Intervenors and Plaintiffs as a matter of law.
Respectfully submitted,
________________________________
Mary Bauer
AMERICAN CIVIL LIBERTIES UNION
OF VIRGINIA
6 North 6th Street Suite 400
Richmond, Virginia 23219-2419Ann Beeson
Christopher A. Hansen
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street
New York, New York 10004Attorneys for Plaintiffs-Intervenors
<1>" Ex. 7 to Brief in Support of Plaintiff-Intervenors' Motion for Summary Judgment (Int. S.J. Br.) (Policy on Internet Sexual Harassment); Ex. 15 to Def. Opp. Br. (Henderson Decl. at ¶¶11-12) (library staff has distinguished between sites that are blocked because they are "harmful to minors" and sites that violate other provisions of the Policy).
<2> Ex. 21 to Def. Opp. Br. (Burt Rep. at 20) (blocking technology "relies on employees of a software company to select" sites for blocking).
<3> Ex. 15 to Def. Opp. Br. (Henderson Decl. at ¶¶18) ("We are, of course, aware that the blocking libraries downloaded from the X-Stop server may include blocks of certain URLs that, if we knew about them, we would not block.").
<4> Id.; Ex. 22 to Def. Opp. Br. (Timmerman Decl., Ex. A) (9/9/98 memo from Timmerman asking library staff to unblock an additional 16 sites). Defendant's assertion that Intervenors' summary judgment motion "focus[es] almost entirely on whether public libraries can use the same filtering policy for adults as for children," Def. Opp. Br. at 3, flatly misstates Intervenors' longstanding position in this case. Defendant's Policy -- not some hypothetical other policy -- violates the First Amendment rights of Intervenors and many other Internet speakers to communicate their valuable information to adult and minor patrons of the library.
<5> Ex. 21 to Def. Opp. Br. (Burt Rep. at 23) (noting sexually explicit material that X-Stop does not block).
<6> Defendant has not explained the contradiction between its present position in support of a "full record" and its objection to Intervenors' separate Statement of Undisputed Facts as a needless "papering of the record."
<7> Intervenors believe that Defendant's reference to proposed stipulations between the parties is improper because the negotiations are still in progress. Since Defendant has raised it, however, Intervenors feel compelled to disclose to the court that it was willing to stipulate that there is material on the Internet that might be determined by a court of law to be unprotected by the First Amendment; Defendant rejected that stipulation.
<8> If Defendant believed that the evidence it submitted was inadequate, it should have filed a Rule 56(f) affidavit explaining way it was unable to produce sufficient evidence at this time.
<9> Contrary to Defendant's claim, however, Ms. Sehgal never testified about whether any particular site she researched was or was not legally obscene. See Def. Opp. Br. at 8-9. Because such a determination calls for a legal conclusion, neither Ms. Sehgal nor Defendant is qualified to make such a judgment.
<10> Ms. Sehgal's testimony is clearly admissible, and in any case the admissability of evidence is a question of law and not of fact. It is unconverted that Ms. Sehgal was employed by that ACLU when she investigated Defendant's blocking of Intervenors' websites, that she was not admitted to practice law, and that she has never and will never act as an advocate on behalf of Intervenors. Sehgal Dep. at 6, 30 (Exhibit 1 attached). Since Ms. Sehgal has never acted as an advocate on behalf of Intervenors, and could not do so legally because she is not admitted to practice, her fact testimony is admissable. There is no rule which precludes an individual from acting as a fact witness merely because they hold a law degree. The lawyer-witness rule is meant to prevent an advocate at trial from being put in the untenable position of being both witness and advocate. Estate of Andrews, 804 F.Supp. 820, 823 (E.D. Va. 1992); Culebras Enterprises Corp. v. Rivera-Rios, 846 F.2d 94 (1st Cir. 1988) (lawyers who did substantial pretrial work could serve as fact witness because lawyers were not "advocates at trial"); Massachusetts School of Law v. American Bar Association, 1994 WL 711840 (rule disqualified witness lawyers from acting as trial counsel but not from "attending any and all depositions, acting as a consultant or making 'the snowballs for somebody else to throw.'").
<11> As Intervenors have previously pointed out, these existing obscenity laws are more narrowly tailored to address Defendant's alleged concern about access to unlawful materials. See Int. S.J. Br. at 27.
<12> Intervenors note that Intervenors' Motion for Leave to File a Separate Statement of Undisputed Facts was granted by Order dated September 6, 1998.
<13> Of course, even under Defendant's narrow definition the Policy imposes a prior restraint both because Defendant's "Request to Unblock" system is an invalid prior licensing system and because the relevant government body in this case -- the Library Board -- has blocked speech from being "uttered within the jurisdiction of that government," i.e., the Loudoun County libraries.
<14> Defendant's narrow reading ignores many more cases in which the Supreme Court invalidated licensing schemes as prior restraints. Although plaintiffs in those cases were not prevented absolutely from speaking or receiving speech -- they could always ask for a license -- the Court nevertheless held that the schemes constituted unconstitutional prior restraints. See generally Int. S.J. Brief, at §II.A.2.; see also Lamont v. Postmaster General, 381 U.S. 301, 381 (1965) (invalidating statute that directed the postmaster not to deliver communist propaganda unless patrons returned a card specifically requesting the material); Freedman v. Maryland, 380 U.S. 51, 58-59 (1965) (invalidating movie censorship board); City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 758-759 (1988) (invalidating newsrack permit ordinance); Forsyth County v. The Nationalist, 505 U.S. 123, 131 (1992) (invalidating parade permit ordinance).
<15> Defendant misstates the holding of Finley by quoting from Justice Scalia's concurrence rather than from the majority opinion. Def. Opp. Br. At 32. The majority opinion, although it ultimately rejected plaintiffs' facial challenge, noted that "even in the provision of subsidies, the Government may not 'aim at the suppression of dangerous ideas.'" Finley, 118 S. Ct. at __, (citations omitted).
<16>" Thus, Defendant's reliance on non-public forum cases, see Def. Opp. Br. at 37-38, is entirely misplaced.
<17> Other government facilities found by the Court to be limited public fora subject to strict scrutiny include university meeting facilities, Widmar v. Vincent, 460 U.S. 37 (1981); school board meetings, City of Madison Joint Sch. Dist. v. Wisconsin Employment Relations Comm'n, 429 U.S. 167 (1976); and municipal theaters, Southeastern Promotions v. Conrad, 420 U.S. 546 (1975).
<18> Defendant also argues that this case should be analyzed by analogy to the adult zoning cases, citing Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986). Def. Opp. Br. at 41. But the Supreme Court flatly rejected that analogy in striking down the CDA in Reno v. ACLU, and it should be rejected here for the same reason. As the Court explained, zoning ordinances aimed at adult businesses have been upheld because their aim was to eliminate the "secondary effects" of the businesses, "such as crime and deteriorating property values." Reno v. ACLU, 138 L.Ed.2d 874, 895 (1997). In contrast, the CDA was intended to protect from "the primary effects of 'indecent' and 'patently offensive' speech, rather than any 'secondary' effect of such speech." Similarly, Defendant's rationale for the Policy is to protect patrons from the "primary effects" of sexually explicit material, and the Policy is therefore "a content-based blanket restriction on speech . . . [that] cannot be 'properly analyzed as a form of time, place, and manner regulation." Id., 138 L.Ed.2d 874 (1997) (citing Renton, 485 U.S. at 46; Boos v. Barry, 485 U.S. 312, 321 (1988) ("Regulations that focus on the direct impact of speech on its audience" are not properly analyzed under Renton).
<19> Defendant also continues to argue that the Policy is intended to prevent sexual harassment. See Def. Opp. Br. at 28. For the reasons discussed in Int. S.J. Br. at §II.B.2.a., the Policy is invalid because it is both underinclusive and overinclusive at meeting that objective. Defendant presents nothing in support of its Opposition Brief to dispute the fact that library staff themselves do not even have blocking software installed on their computers, see Int. SUF at ¶186. Defendant admits that the Policy requires library employees Douglas Henderson and Cindy Timmerman to review blocked sites. Ex. 15 to Def. Opp. Br. (Henderson Decl at ¶9).