MAINSTREAM LOUDOUN, et al. ) ) Plaintiffs ) v. ) Case No. CA-97-2049-A ) BOARD OF TRUSTEES OF THE ) LOUDOUN COUNTY LIBRARY, et al. ) ) Defendants. )
MEMORANDUM OPINION
BACKGROUND
At issue in this civil action is whether a public library may
enact a policy prohibiting the access of library patrons to certain
content-based categories of Internet publications. Plaintiffs are
a Loudoun County non-profit organization, suing on its own behalf
and on behalf of its members, and individual Loudoun County
residents who claim to have had their access to Internet sites
blocked by the defendant library board's Internet policy. They,
along with plaintiff-intervenors ("intervenors"), individuals and
other entities who claim that defendant's Internet policy has
blocked their websites or other materials they placed on the
Internet, allege that this Policy infringes their right to free
speech under the First Amendment. Defendant, the Board of Trustees
of the Loudoun County Library, contends that a public library has
an absolute right to limit what it provides to the public and that
any restrictions on Internet access do not implicate the First
Amendment.
The background of this action is fully summarized in this
Court's April 7, 1998 Memorandum Opinion and will not be repeated
in depth here. On October 20, 1997, defendant passed a "Policy on
Internet Sexual Harassment" ("Policy") stating that the Loudoun
County public libraries would provide Internet access to its
patrons subject to the following restrictions: (l) the library
would not provide e-mail, chat rooms, or pornography; (2) all
library computers would be equipped with site-blocking software to
block all sites displaying: (a) child pornography and obscene
material;1 and (b) material deemed harmful to juveniles; (3) all
library computers would be installed near and in full view of
library staff; and (4) patrons would not be permitted to access
pornography and, if they do so and refuse to stop, the police may
be called to intervene. See Pls. Ex. 1. It is the second
restriction in the Policy that lies at the heart of this action.
To effectuate the second restriction, the library has
purchased X-Stop, commercial site-blocking software manufactured by
Log-On Data Corporation. While the method by which X-Stop chooses
sites to block has been kept secret by its developers, see Pls. Ex.
16, Dep. of Michael S. Bradshaw ("Bradshaw Dep.") at 12-13, it is
undisputed that it has blocked at least some sites that do not
contain any material that is prohibited by the Policy.2
If a patron is blocked from accessing a site that she feels
should not be blocked under the Policy, she may request that
defendant unblock the site by filing an official, written request
with the librarian stating her name, the site she wants unblocked,
and the reason why she wants to access the site. See Intervs. Ex.
21, Request to Review Blocked Site. The librarian will then review
the site and manually unblock it if he determines that the site
should not be blocked under the Policy. There is no time limit in
which a request must be handled and no procedure for notifying the
patron of the outcome of a request. See Pls. Ex. 18, Deposition of
Cindy Timmerman at 93-94. All unblocking requests to date have
been approved. See Def. Ex. 15, Decl. of Douglas Henderson
("Henderson Decl.") at ¶ 18.
Plaintiffs and intervenors both allege that the Policy, as
written and as implemented, violates their First Amendment rights
because it impermissibly discriminates against protected speech on
the basis of content and constitutes an unconstitutional prior
restraint. In response, defendant contends: (1) intervenors do not
have standing; (2) the Policy does not implicate the First
Amendment and is reasonable; (3) the Policy is the least
restrictive means to achieve two compelling government interests;
and (4) the library has statutory immunity from this action.
In the motions now before the Court, plaintiffs, intervenors,
and defendant each ask the Court to grant summary judgement in
their favor. Intervenors also ask the Court to permit them to
substitute for three of their parties.3
ANALYSIS
I. Standing
Defendant alleges that all of the intervenors lack standing.
Intervenors include three websites (the Safer Sex Page, Banned
Books Online, and the Books for Gay and Lesbian Teens/Youth page),
two non-profit corporations with websites (the American Association
of University Women and the Renaissance Transgender Association),
one for-profit corporation with a website (The Ethical Spectacle)
one newspaper columnist whose articles are published on a website
(Rob Morse, writer for the San Francisco Examiner), and an artist
whose work is published on a website (Sergio Arau). See February
6, 1998 Mot. Intervene as Pls.
A. Non-Jural Persons
Defendant argues that the three website intervenors lack
standing because they are non-jural entities, being neither
individual persons nor corporations. While intervenors assert that
these three entities do have standing as alleged in their
complaint, they have filed a Motion to Substitute Parties to
resolve this dispute. In each case, they wish to replace the web
page with the individual who owns and operates it. Specifically.
intervenors would substitute Christopher Filkins for The Safer Sex
Page, John Ockerbloom for Banned Books Online, and Jeremy Meyers
for Books for Gay and Lesbian Teens/Youth. These individuals are
jural entities with a clear First Amendment interest in
communicating the speech they have published via these sites.
Defendant contends that the Motion to Substitute Parties
should be denied for two reasons. First, defendant alleges it
would be prejudiced by adding these individuals as named
intervenors at this late stage of the proceedings. All three
individuals, however, were named in the original complaint and
there has been no problem deposing them or obtaining discovery from
and about them. Defendant cannot point to any specific actual or
potential prejudice to its case and we find that there would be
none. Second, defendant contends that the real party in interest
in this litigation is the ACLU, which represents the Renaissance
Transgender Association, and that the dismissal of the website
intervenors would still leave the Renaissance Transgender
Association as an adequate nominal party through which the ACLU
could pursue this action. Defendant has not presented a single
piece of evidence to substantiate this allegation or to demonstrate
that these individuals have not asserted a real injury-in-fact that
could be redressed by this Court. Therefore, intervenors' motion
to substitute parties will be granted, which moots defendant's
argument that these three intervenors do not have standing because
they are non-jural entities.
B. Websites Never Blocked
Defendant next alleges that five of the intervenors, John
Ockerbloom d/b/a Banned Books Online, the American Association of
University Women, The Ethical Spectacle, Robert Morse, and Sergio
Arau, have no standing because there is no evidence in the record
that their websites were ever blocked. To the contrary,
intervenors have submitted the Declaration of Alpna Cassidy Sehgal,
a staff attorney for the ACLU. See Intervs. Decl. N ("Sehgal
Decl.") In the Declaration, Sehgal alleges that she visited the
Rust Branch at the Loudoun County Public Library on February 2,
1998 and, as a result of the Policy, was denied access, in whole or
in part, to the websites of each of the intervenors. See id. at ¶¶
2, 9-12, 14-16, 20.
Defendant first alleges that the Sehgal Declaration should be
disregarded pursuant to the lawyer-witness rule. Intervenors
respond that the lawyer-witness rule prohibits an attorney who may
be called as a witness only from acting as an advocate at trial
and not from assisting with trial preparation. See. e.g., Culebras
Enterprises Corp. v. Riviera-Rios, 846 F. 2d 94 (1st Cir.
1988) (finding that lawyers who did substantial pretrial work did
not violate lawyer-witness rule because they were not "advocates at
trial"). Intervenors' statement of the law is correct. It is
undisputed that Sehgal has not and will not act as an advocate in
this action. We find no reason to disregard her declaration.
In the alternative, defendant contends that there is a
material factual dispute as to whether these five sites were ever
blocked. Defendant alleges that it attempted to access the sites
of all eight intervenors on February 6, 1998, using a library
computer employing the X-Stop software, and that only The Safer Sex
Page, the Books for Gay and Lesbian Teens/Youth page, and the
Renaissance Transgender Association page were blocked at that time.
See Def. Ex. 15, Def. Answer to Intervs. Sec. Interrogs. Defendant
asserts that this evidence contradicts Sehgal's declaration and,
therefore, creates a dispute as to a material fact. Defendant's
own witnesses, however, demonstrate the dynamic nature of the
Internet, see Henderson Decl. at ¶ 14, and X-Stop, their filtering
software. See Bradshaw Dep. at 49-51. It is entirely possible
that these sites were blocked on February 2 but not blocked four
days later.4 Therefore, we find than the Sehgal declaration is
unrebutted evidence that the sites, in whole or in part, were
blocked by defendant on February 2, 1998, and therefore that these
intervenors will not be denied standing on this basis.
C. Websites That Were Unblocked
As noted above, defendant concedes that it blocked three of
the intervenors sites, The Safer Sex Page, the Books for Gay and
Lesbian Teens/Youth page, and the Renaissance Transgender
Association page, as of February 6, 1998 even though these sites
admittedly did not violate the Policy. See Def. Ex. 18, Def.
Answer Intervs. Sec. Interrogs. It is undisputed that by May 1998
defendant had unblocked these three sites, see id., and there is no
evidence that any of intervenors' sites have been blocked since
then. Defendant asserts that none of the intervenors have standing
to sue now because their sites are no longer blocked, they do not
contain "any material that would even be considered a candidate for
blocking," and "there is no reason to expect that any of these web
sites will ever be candidates for blocking under the Internet
Policy." Def. Mem. Support Motion Summ. J. at 6, 8. Therefore,
defendant contends, intervenors cannot meet the burden of
demonstrating that they have an "injury that could be redressed if
the requested relief is granted." Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992); see also, Simon v. Eastern Ky. Welfare
Rights Org., 426 U.S. 26, 45-46 (1976) (stating that a plaintiff
must demonstrate a "likelihood that the requested relief will
redress the alleged injury").
In response, intervenors allege that they have standing to sue
it there is a legitimate fear that the policy will be enforced
against them, or if defendant, having blocked intervenors' speech
on one occasion, is likely to do so again. See ACLU v. Reno, 929
F. Supp. 824, 851 (E.D. Pa. 1996), aff'd, 117 S. Ct. 2329 (1997)
(holding that plaintiffs had standing to bring pre-enforcement
facial challenge against the Communications Decency Act). One way
to demonstrate that a defendant is likely to block intervenors'
speech is to show that it retains unfettered discretion in
enforcing the Policy. See 11126 Baltimore Boulevard Inc. v.
Prince George's County, 58 F.3d 988, 993-94 (4th Cir. 1995)
(finding a facial challenge to an ordinance restricting speech
appropriate where a plaintiff alleges the ordinance does not
contain "specific standards to guide the decisionmaker" or
"appropriate procedural safeguards to ensure a prompt resolution").
Intervenors also argue that "'voluntary cessation of allegedly
illegal conduct does not deprive the tribunal of the power to hear
and determine the case.'" Commonwealth of Virginia v. Califano,
631 F.2d 324, 326 (4th Cir. 1980) (quoting United States v. W. T.
Grant Co. 345 U.S. 629, 632 (1953)). In W. T. Grant, the Supreme
Court warned that courts must "beware of efforts to defeat
injunctive relief by protestations of repentance and reform,
especially when abandonment seems timed to anticipate suit, and
there is a probability of resumption." Id. at 632 n.5. The Court
further explained that a voluntary cessation of wrongful activity
would only moot an action if "the defendant can demonstrate that
there is no reasonable expectation that the wrong will be
repeated. Id. at 633. To do otherwise, the Court opined, would
leave the defendant "free to return to his old ways." Id. at 632.
Defendant has failed to carry its burden of demonstrating that
the wrong will not be repeated. Douglas Henderson, defendant's
Director of Library Services, has acknowledged that the content
and imagery on websites frequently changes. See Henderson Decl. at
¶ 14 (acknowledging "the changing nature of the WorldWideWeb"). In
addition, the materials from one website also may be transferred to
another website located at a different address. See Intervs. Decl.
A, Decl of Sergio Arau ("Arau Decl.") at ¶ 5. Such changes could
lead X-Stop to block even previously unblocked material.
Therefore, intervenors are justified in having a reasonable
expectation that they may be blocked again in the future.
Furthermore, defendant's concession that none of the
intervenors' websites contain or likely will ever contain material
that violates the Policy does not prevent intervenors from having
standing given defendant's admissions that X-Stop blocks websites
that do not violate the Policy and that defendant does not even
know what websites X-Stop blocks or how it selects them. See
Henderson Decl. at ¶ 18 (stating that defendant is aware that X-Stop
blocks websites that defendant would not block "if we knew
about them"), Bradshaw Dep. at 12-13 (stating that Log-On Data
Corp. has refused to provide defendant with the criteria it uses to
censor websites); Pls. Ex. 2. Dep. of Douglas Henderson ("Henderson
Dep."), at 494 (stating that defendant has never seen a list of the
blocked sites). On this record, because defendant cannot
"demonstrate that there is no reasonable expectation that the wrong
will be repeated," and because a declaratory judgment would provide
intervenors with relief, we find that the fact they are currently
unblocked does not prevent intervenors from having standing to
pursue this action.5
D. Banned Books Online
Defendant next claims that one of the intervenors, John
Ockerbloom d/b/a Banned Books Online, lacks standing because
defendant has never blocked his website. Ockerbloom admits chat
there is no evidence that defendant has ever blocked his website,
but asserts that he has standing because defendant blocked a link6
from his website to a website providing the text of E for Ecstasy,
a book about the history of the drug MOMA. See Sehgal Decl. at ¶
15. Ockerbloom alleges that part of the mission at his website is
to provide users with access to censored materials, such as E for
Ecstacy. Therefore, blocking access to one of the links is a
concrete injury to his free speech rights.
The extent to which free speech protection reaches links on
the Internet has not been directly addressed by any court. In more
traditional contexts, individuals are frequently found to have
standing to challenge restrictions on speech in which they have a
sufficient interest even where that speech is not originally
theirs. For example, owners of adult bookstores can challenge
censorship of books they intend to sell,7 owners of adult movie
theaters have standing to protest censorship of movies they intend
to show,8 and library patrons have standing to challenge library
policies restricting their exercise of the First Amendment right to
receive information.9 In essence, intervenor Ockerbloom has sought
to intervene in this action because he claims to have an interest
in the E for Ecstacy page, material he explicitly and purposely has
made available for use by others.
While this argument is initially appealing its consequences
would be unmanageable. Because of the ease of establishing links
to any and every site on the Internet, if we find that Ockerbloom
has standing in this case it would be impossible to prevent anyone
from asserting standing to protest alleged Internet-related First
Amendment harms wherever, whenever, and to whomever they occur.
For example, by virtue of the ACLU having placed links to each of
the intervenors' web pages on its own Internet site, see Def. Ex.
18, thereby asserting an interest in the speech of the intervenors,
it would be able to assert the rights of each intervenor in a
lawsuit brought only in its own name. Such a result would make a
mockery of traditional standing principles. Therefore, we find
that John Ockerbloom d/b/a Banned Books On-Line, does not have
standing and should be dismissed from this action.
E. Sergio Arau
Defendant also asserts that intervenor Sergio Arau does not
have standing because he does not have any material published on
the Internet to block. Arau responds that some of his work was
blocked as of February 2, 1998, see Sehgal Decl. at ¶ 20, and that
similar artwork and music of his are currently available on the
Internet, although at a new website. See Arau Decl. at 5; Arau
Decl. Ex. 7. Defendant has not rebutted this evidence. Therefore,
we find that Arau's work is currently displayed on the Internet,
that it is potentially at risk of being blocked again by defendant,
and that he has standing to pursue this action.
F. Robert Morse
Lastly defendant argues that intervenor Robert Morse, a
columnist for the San Francisco Examiner, does not have standing
because he gave up any First Amendment right in his columns by
ceding the intellectual property rights in those columns to his
newspaper. Morse counters than there is no legal support for the
proposition that by relinquishing intellectual property rights in
his work an individual also surrenders his First Amendment interest
in that work. Indeed, authors and journalists who have given up
the copyright to their work can still be sued for defamation
resulting from that work and can still offer the First Amendment as
a defense to such lawsuits. See. e.g., Masson v. New Yorker, 501
U.S. 496, 499 (1991) (noting that "[t]he First Amendment protects
authors and journalists who write about public figures"). We find
no legal or logical support for defendant's position and,
therefore, find that Morse has standing to intervene in this
action.
II. Immunity
Defendant has requested that we reconsider our previous
finding that it is not immune from this litigation pursuant to a
provision of the 1996 Communications Decency Act granting absolute
immunity to good faith users of filtering software. See 47 U.S.C.
§ 230(c)(2)(A). In our previous opinion, we found that § 230
provides immunity from actions for damages; it does not, however,
immunize defendant from an action for declaratory and injunctive
relief. We see no reason to stray from our earlier decision, which
is the law of this case. If Congress had intended the statute to
insulate Internet providers from both liability and declaratory and
injunctive relief, it would have said so.
IV. Strict Scrutiny Standard
Defendant has also requested that we reconsider our earlier
findings (1) than the Policy implicates the First Amendment and (2)
that the appropriate standard of review is strict scrutiny.
A. Implicating the First Amendment
Defendant first contends than the Policy should really be
construed as a library acquisition decision, to which the First
Amendment does not apply,10 rather than a decision to remove library
materials. Plaintiffs and intervenors contend that this issue has
already been decided by this Court and is the law of the case. See
Mainstream Loudoun v. Board of Trustees of the Loudoun County
Library et al., 2 F. Supp. 2d 783, 794-95 (E.D. Va. 1998) ("[T]he
Library Board's action is more appropriately characterized as a
removal decision"; "[W]e conclude that [Pico] stands for the
proposition the First Amendment applies to, and limits, the
discretion of a public library to place content-based restrictions
on access to constitutionally protected materials within its
collection.").
We addressed the acquisition/removal argument at length in our
previous decision and defendant has not presented a single new
argument or authority to support its position. Indeed, defendant's
own expert, David Burt, undercuts its argument by acknowledging
that "[f]iltering cannot be rightly compared to 'selection', since
it involves an active, rather than passive exclusion of certain
types of content." Def. Ex. 21, Rep. of David Burt ("Burt Rep.")
at 15. Therefore. we decline to reconsider our earlier ruling on
this issue.
B. Forum Analysis
Next, defendant contends that even if the First Amendment does
apply, we should apply a less stringent standard than strict
scrutiny. Specifically defendant argues that because the library
is a non-public forum, the Policy should be reviewed by an
intermediate scrutiny standard, examining whether it is reasonably
related to an important governmental interest. Citing Kreimer v.
Bureau of Police, 958 F.2d 1242 (3d Cir. 1992), defendant argues
that public libraries are non-public fora and therefore, content-
based speech regulations are not subject to the strict scrutiny
standard. Rather, it asserts such regulations need only be
"reasonable and viewpoint neutral" to be upheld. Def. Brief in
Opp. at 34-37 (citing International Soc'y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 694 (1992) (Kennedy, J.
concurring)). Plaintiffs and intervenors respond that defendant
has misread Kreimer and moreover that the library is a limited
public forum in which content-based regulations are subject to
strict scrutiny.
Defendant concedes that the Policy is a content-based
regulation of speech and that content-based regulations of speech
in a limited public forum are subject to strict scrutiny. Def.
Brief in Opp. at 36-37. The only issue before us, then, is whether
the library is a limited public forum or a non-public forum. In
Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37,
45-46 (1983), the Supreme Court identified three categories of fora
for the purpose of analyzing the degree of protection afforded to
speech. The first category is the traditional forum, such as a
sidewalk or public park. These are "places which by long tradition
or by government fiat have been devoted to assembly and debate".
Id. at 45. Second is the limited or designated forum, such as a
school board meeting or municipal theater. This category consists
of "public property which the State has opened for use by the
public as a place for expressive activity". Id. The last category
is the non-public forum, such as a government office building or a
teacher's mailbox, which is not "by tradition or designation a
forum for public communication." Id. at 46. It is undisputed that
the Loudoun County libraries have not traditionally been open to
the public for all forms of expressive activity and, therefore, are
not traditional public fora.
A limited public forum is created when the government
voluntarily opens a particular forum to the public for expressive
activity. See id. at 45. The government can create a limited
public forum for all, some or only a single kind of expressive
activity. See, e.g., Kreimer, 958 F.2d at 1259 (finding that the
government had made the public library a limited public forum for
the expressive activity of "communication of the written word")
Even though it is not required to operate such a forum, once the
government does so it "is bound by the same standards as apply in
a traditional public forum " Perry, 460 U.S. at 46. Therefore,
content-neutral time, place and manner regulations on the
expressive activity or activities allowed are permissible if
narrowly tailored to serve a significant government interest while
leaving open ample alternative channels of communication, see
Kreimer, 958 F.2d at 1262. Any content-based restriction, however,
must be "narrowly drawn to effectuate a compelling state interest."
Perry, 460 U.S. at 46.
The only court to have examined whether a public library
constitutes a limited public forum is the Third Circuit in
Kreimer.11 In determining that the public library constituted a
limited public forum,12 the court considered three factors:
government intent; extent of use; and nature of the forum. See id.
at 1259. We agree that these are the crucial factors in
determining whether a forum is a limited or a non-public forum.
1. Government Intent
The record establishes than the Loudoun County government,
through defendant library board, intended to create a public forum
when it authorized its public library system. In a resolution it
adopted in 1995 and reaffirmed last year, defendant declared that
its "primary objective . . . [is] that the people have access to
all avenues of ideas." See Pls. Ex. 5, Loudoun County Library
Board of Trustees Resolution, Freedom For Ideas - Freedom From
Censorship, May 15, 1995 ("May 15 Resolution"). Furthermore, the
same resolution states that the public interest requires "offering
the widest possible diversity of views and expressions" in many
different media, not diminishing the library collection simply
because "minors might have access to materials with controversial
content," not excluding any materials because of the nature of the
intormation or views within, and not censoring ideas. Id. We find
that defendant intended to designate the Loudoun County libraries
as public fora for the limited purposes of the expressive
activities they provide, including the receipt and communication of
information through the Internet.13
2. Extent of Use
As to the extent of use the government has allowed, defendant
has designated the library for the use of "the people" and has
declared that "[l]ibrary access and use will not be restricted nor
denied to anyone because of age, race, religion, origin, background
or views. Id. Defendant has opened the library to the use of the
Loudoun County public at large and has significantly limited its
own discretion to restrict access, thus indicating that it has
created a limited public forum. See Kreimer, 958 F.2d at 1260
(finding that the extent of use inquiry favored concluding that the
library was a limited public forum because the library "does not
retain unfettered discretion governing admission").
3. Nature of the Forum
The final consideration is whether the nature of the forum is
compatible with the expressive activity at issue. While the nature
of the public library would clearly not be compatible with many
forms of expressive activity, such as giving speeches or holding
rallies, we find that it is compatible with the expressive activity
at issue here, the receipt and communication of information through
the Internet. Indeed, this expressive activity is explicitly
offered by the library.
All three of these factors indicate that the Loudoun County
libraries are limited public fora and, therefore, that defendant
must "permit the public to exercise rights that are consistent with
the nature of the Library and consistent with the government's
intent in designating the Library as a public forum." Id. at 1262.
The receipt and communication of information through the Internet
is consistent with both.
Because the Policy at issue limits the receipt and
communication of information through the Internet based on the
content of that information, it is subject to a strict scrutiny
analysis and will only survive if it is "necessary to serve a
compelling state interest and is narrowly drawn to achieve
that end." Perry, 460 U.S. at 45 (citing Carey v. Brown, 447 U.S.
455, 461 (1980)).14
C. Renton/Time, Place and Manner
Defendant also argues in the alternative that the strict
scrutiny standard should not apply because the Policy is more
appropriately viewed as a time, place, and manner restriction
pursuant to City of Renton v. Playtime Theatres. Inc., 475 U.S. 41
(1986), than as a traditional content-based restriction on speech.
Plaintiffs respond that this analysis is inapplicable to the
Policy, which is designed to address the primary effects of
Internet speech and which defendant admits restricts speech based
on content.
In Renton, the Supreme Court found that a zoning ordinance
prohibiting adult movie theaters from locating within 1000 feet of
residential neighborhoods, churches, and specific other structures
was a content-neutral time, place, and manner restriction because
it could be justified without reference to the content of the
speech in the theaters. The city justified the ordinance as
necessary to address the secondary effects of adult theaters in
certain neighborhoods, namely preventing crime, protecting retail
trade, maintaining property values, and preserving the quality of
the neighborhoods, districts, and Life. See id. at 48. The Court
found that none of these secondary effects were related to the
content of the movies shown at the theaters. Therefore, the Court;
found the ordinance to be constitutional. See id. at 54.
In a subsequent decision clarifying what it meant by
"secondary effects," the Supreme Court held that "[r]egulations
that focus on . . . [l]isteners' reactions to speech are not the
type of 'secondary effects' we referred to in Renton." Boos v.
Barry, 485 U.S. 312, 321 (1988). More recently in construing the
Communications Decency Act, the court stated that "content-based
blanket restrictions on speech . . . cannot be 'properly analyzed
as a form of time, place, and manner regulation'" Reno v. ACLU, 117
S. Ct. 2329, 2342 (1997).
Defendant contends than the Policy is designed to combat two
secondary effects: creating a sexually hostile environment and
violating obscenity, child pornography, and harm to juveniles laws.
Neither of these are secondary effects and neither can be justified
without reference to the content of the speech at issue. The
defendant's concern that without installing filtering software,
Internet viewing might lead to a sexually hostile environment is
solely focused on the reaction of the audience to a certain
category of speech. As the Supreme Court noted in Boos, this is
not a secondary effect. The defendant's second concern is the
possible violation of various criminal statutes that address
materials deemed to be obscene, involve child pornography, or are
harmful to juveniles. These criminal statutes define prohibited
speech only by and because of its content. Far from addressing
secondary effects of speech, these statutes focus on the very
speech itself.
Indeed, the Fourth Circuit has recently observed that content-
neutrality is a prerequisite to the constitutionality of time,
place, and manner restrictions on expressive conduct on public
grounds. See United States v. Johnson, No. 97-5023, 1998 WL
781215, *3 (4th Cir. Oct. 28, 1998). Therefore, defendant's
admission that the Policy discriminates against speech based on
content indicates that it would not be constitutional even if it
were a time, place, and manner restriction.
III. Constitutionality of the Policy
Defendant contends that even if we conclude that strict
scrutiny is the appropriate standard of review, the Policy is
constitutional because it is the least restrictive means to achieve
two compelling government interests: "1) minimizing access to
illegal pornography; and 2) avoidance of creation of a sexually
hostile environment . . . ." Def. Brief in Opp. at 25. Plaintiffs
and intervenors respond that there is no evidence that the Policy
is necessary to further these interests nor that it is the least
restrictive means available. Moreover, they argue that the Policy
imposes an unconstitutional prior restraint on speech.
A content-based limitation on speech will be upheld only where
the state demonstrates that the limitation "is necessary to serve
a compelling state interest and that it is narrowly drawn to
achieve that end." Perry Educ. Ass'n. v. Perry Local Educators' Ass'n,
460 U.S. 37, 45 (1983) (citing Carey v. Brown, 447 U.S. 455,
46l (1980)). This test involves three distinct inquiries: (l)
whether the interests asserted by the state are compelling; (2)
whether the limitation is necessary to further those interests; and
(3) whether the limitation is narrowly drawn to achieve those
interests.
A. Whether the Defendant's Interests Are Compelling
Defendant argues that both of its asserted interests are
compelling. Although plaintiffs and intervenors argue that these
interests were not really the motivating factors behind the Policy
and that they are not furthered by the Policy, they do not argue
that the interests themselves are not compelling. For the purposes
of this analysis, therefore, we assume that minimizing access to
illegal pornography15 and avoidance of creation of a sexually
hostile environment16 are compelling government interests.
B. Whether the Policy is Necessary to Further Those Interests
To satisfy strict scrutiny, defendant must do more than
demonstrate that it has a compelling interest; it must also
demonstrate that the Policy is necessary to further that interest.
In other words, defendant must demonstrate that in the absence of
the Policy, a sexually hostile environment might exist and/or there
would be a problem with individuals accessing child pornography or
obscenity or minors accessing materials that are illegal as to
them. Defendant "must demonstrate that the recited harms are real,
nor merely conjectural, and that the regulation will in fact
alleviate these harms in a direct and material way." Turner Broad.
Sys., Inc. v. FCC, 512 U.S. 622, 664; see also Johnson. 865 F.
Supp. at 1439 ("[S]imply alleging the need to avoid sexual
harassment is not enough[;] . . . the defendant[] must show that
the threat of disruption is actual, materia1, and substantial.").
The defendant bears this burden because "[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. 2329, 2351 (1997).
The only evidence to which defendant can point in support of
its argument that the Policy is necessary consists of a record of
a single complaint arising from Internet use in another Virginia
library and reports of isolated incidents in three other libraries
across the country. In the Bedford County Central Public Library
in Bedford County, Virginia, a patron complained that she had
observed a boy viewing what she believed were pornographic pictures
on the Internet. See Pls. Ex. 15 at 4-7. This incident was the
only one defendant discovered within Virginia and the only one in
the 16 months in which the Bedford County public library system had
offered unfiltered public access to the Internet. After the
incident, the library merely installed privacy screens on its
Internet terminals which, according to the librarian, "work great".
Id. at 4.
The only other evidence of problems arising from unfiltered
Internet access is described by David Burt, defendant's expert, who
was only able to find three libraries that allegedly had
experienced such problems, one in Los Angeles County,17 another in
Orange County, Florida,18 and one in Austin, Texas.19 See Burt Rep.
at 14. There is no evidence in the record establishing that any
other libraries have encountered problems; rather, Burt's own
statements indicate that such problems are practically nonexistent.
See Burt Dep. at 253-55 (acknowledging that an e-mail requesting
information about sexual harassment complaints relating to Internet
use that he sent to "several thousand" librarians did not yield a
single serious response). Significantly, defendant has not pointed
to a single incident in which a library employee or patron has
complained that material being accessed on the Internet was
harassing or created a hostile environment. As a matter of law, we
find this evidence insufficient to sustain defendant's burden of
showing that the Policy is reasonably necessary. No reasonable
trier of fact could conclude that three isolated incidents
nationally, one very minor isolated incident in Virginia, no
evidence whatsoever of problems in Loudoun County, and not a single
employee complaint from anywhere in the country establish that the
Policy is necessary to prevent sexual harassment or access to
obscenity or child pornography.
C. Whether the Policy is Narrowly Tailored to Achieve the Compelling Government Interests
Even if defendant could demonstrate that the Policy was
reasonably necessary to further compelling state interests, it
would still have to show that the Policy is narrowly tailored no
achieve those interests. The parties disagree about several issues
relating to whether the Policy is narrowly tailored: (1) whether
less restrictive means are available; (2) whether the Policy is
overinclusive; and (3) whether X-Stop, the filtering software used
by defendant, is the least restrictive filtering software
available.20
1. Whether Less Restrictive Means Are Available
Defendant alleges than the Policy is constitutional because it
is the least restrictive means available to achieve its interests.
The only alternative to filtering, defendant contends, is to have
librarians directly monitor what patrons view. Defendant asserts
this system would be far more intrusive than using filtering
software. Plaintiffs and intervenors respond that there are many
less restrictive means available, including designing an acceptable
use policy, using privacy screens, using filters that can be turned
off for adult use, changing the location of Internet terminals,
educating patrons on Internet use, placing time limits on use, and
enforcing criminal laws when violations occur.
In Sable Communications of Calif., Inc. v. FCC, 492 U.S. 115,
126 (1989), the Supreme Court noted that "[t]he Government may . . .
regulate the content of constitutionally protected speech in
order to promote a compelling interest if it chooses the least
restrictive means to further the articulated interest." In Sable
the Court declared unconstitutional a statute banning all
"indecent" commercial telephone communications. The Court found
that the government could not justify a total ban on communication
that is harmful to minors, but not obscene by arguing that only a
total ban could completely prevent children from accessing indecent
messages. Id. at 128. The Court held that without evidence that
less restrictive means had "been tested over time," the government
had not carried its burden of proving that they would not be
sufficiently effective. Id. at 128-29.
We find that the Policy is not narrowly tailored because less
restrictive means are available to further defendant's interests
and, as in Sable, there is no evidence that defendant has tested
any of these means over time. First, the installation of privacy
screens is a much less restrictive alternative that would further
defendant's interest in preventing the development of a sexually
hostile environment. See Pls. Ex. 15 at 4, Letter from Tom Hehman
to Douglas Henderson (stating that privacy screens "work great").
Second, there is undisputed evidence in the record that charging
library staff with casual monitoring of Internet use is neither
extremely intrusive nor a change from other library policies. See
e.g., id. (noting no problems with the library staff being
responsible for "'shooing' people away from sites we know are
objectionable, just as we always have with prepubescent boys
giggling over gynecological pictures in medical books"); see
generally Pls. Ex. 15 (providing the Internet use policies of other
Virginia libraries, many of which threaten loss of library
privileges or prosecution for accessing illegal sites). Third,
filtering software could be installed on only some Internet
terminals and minors could be limited to using those terminals
Alternately, the library could install filtering software that
could be turned off when an adult is using the terminal. While we
find that all of these alternatives are less restrictive than the
Policy, we do not find that any of them would necessarily be
constitutional if implemented. That question is not before us.
2. Whether the Policy Is Overinclusive
Defendant contends that the Policy is neither overinclusive
nor underinclusive because it is the least restrictive means
available. Defendant also asserts that we should not focus on the
specifics of what the Policy does and does not cover because that
would detract from the broader issue of "whether a public library
can or cannot filter obscene materials on its public Internet
terminals and, if so, under what criteria and procedures." Def.
Brief in Opp. at 4. In other words, the defendant asks this Court
to consider a hypothetical situation that is not before us. The
federal courts, however, may not provide advisory opinions; we may
rule only on the Policy before us. Defendant cannot save its
Policy by asking the Court to decide hypothetical questions for
which there is no case or controversy.
In examining the specific Policy before us, we find it
overinclusive because, on its face, it limits the access of all
patrons, adult and juvenile, to material deemed fit for juveniles.
It is undisputed that the Policy requires that "[i]f the Library
Director considers a particular website to violate . . . [the
Virginia Harmful to Juveniles Statute], the website should be
blocked under the policy for adult as well as juvenile patrons."
Pls. Ex. 10, Def. Resp. to Pls., First Req. for Admiss. 35. It has
long been a matter of settled law that restricting what adults may
read to a level appropriate for minors is a violation of the free
speech guaranteed by the First Amendment and the Due Process Clause
of the Fourteenth Amendment. See Reno v. ACLU, 117 S. Ct. 2329,
2346 (1997) ("It is true that we have repeatedly recognized the
governmental interest in protecting children from harmful materials
but that interest does not justify an unnecessarily broad
suppression of speech addressed to adults.") (citations omitted);
Butler v. Michigan, 352 U.S. 380, 383 (1957) (restricting adults to
what is appropriate for juveniles is "not reasonably restricted to
the evil with which it is said to deal").
At issue in Reno was a federal statute, the Communications
Decency Act ("CDA"), which established a criminal penalty for
providing on the Internet material deemed harmful to minors
although not obscene with the knowledge that such material could be
accessed by minors. The Supreme Court found that because there was
no way for an Internet provider to block minors from accessing such
material, this statute effectively prohibited such material from
being displayed at all. Reno at 2347. The Court held that
[i]n order to deny minors access to potentially harmful
speech, the CDA effectively suppresses a large amount of
speech that adults have a constitutional right to receive
and to address to one another. That burden on adult
speech is unacceptable if less restrictive alternatives
would be at least as effective in achieving the
legitimate purpose that the statute was enacted to serve.
Id. at 2346. Because we have found that less restrictive
alternatives are available to defendant and that defendant has not
sufficiently tried to employ any of them, see III.C.1., the
Policy's limitation of adult access to constitutionally protected
materials cannot survive strict scrutiny.
3.Whether X-Stop Is the Least Restrictive Filtering Software
Defendant claims that X-Stop is the least restrictive
filtering software currently available and, therefore, the Policy
is narrowly tailored as applied. Our finding that the Policy is
unconstitutional on its face makes this argument moot. A facially
overbroad government policy may nevertheless be saved if a court is
able to construe government actions under that policy's narrowly
along the lines of their implementation, if the policy's text or
other sources of government intent demonstrate "a clear line" to
draw. See Reno, 117 S. Ct. at 235O-51. We find no such clear line
here. Defendant has asserted an unconditional right to filter the
Internet access it provides to its patrons and there is no evidence
in the record that it has applied the Policy in a less restrictive
way than it is written. See Def. Resp. to Pl First Req. Admiss. 17
(denying that X-Stop does not block access to soft core
pornography, which is protected). Therefore, our finding that the
Policy is unconstitutional on its face makes any consideration of
the operation of X-Stop moot.
V. Prior Restraint
Plaintiffs and intervenors allege that even if the Policy were
to survive strict scrutiny analysis, the Court would have to find
in unconstitutional under the doctrine of prior restraint because
it provides neither sufficient standards to limit the discretion of
the decisionmaker nor adequate procedural safeguards. Defendant
responds that the Policy is not a prior restraint because it only
prohibits viewing certain sites in Loudoun County public libraries,
and not in the whole of Loudoun County.
Preventing prior restraints of speech is an essential
component of the First Amendment's free speech guarantee. See
Freedman v. Maryland, 380 U.S. 51, 58 (1965). "Permitting
government officials unbridled discretion in determining whether to
allow protected speech presents an unacceptable risk of both
indefinitely suppressing and chilling protected speech." 11126
Baltimore Boulevard, Inc. v. Prince George's County, 58 F.3d 988,
994 (4th Cir. 1995). In 11126, the Fourth Circuit found that
[t]he guarantee of freedom of speech afforded by the
First Amendment is abridged whenever the government makes
the enjoyment of protected speech contingent upon
obtaining permission from government officials to engage
in its exercise under circumstances that permit
government officials unfettered discretion to grant or
deny the permission. . . . Such discretion exists when
a regulation creating a prior restraint on speech fails
to impose adequate standards for officials to apply in
rendering a decision to grant or deny permission or when
a regulation fails to impose procedural safeguards to
ensure a sufficiently prompt decision.
[The following procedural safeguards have been required
by the Supreme Court:] "(1) any restraint prior to
judicia1 review can be imposed only for a specific brief
period during which the status quo must be maintained;
(2) expeditious judicial review of that decision must be
available; and (3) the censor must bear the burden of
going to court to suppress the speech and must bear the
burden of proof once in court."
Id. at 996 (quoting Freedman, 380 U.S. at 58-60 (1965)). In other
words, even unprotected speech cannot be censored by administrative
determination absent sufficient standards and adequate procedural
safeguards. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S.
546, 562 (1975) ("Whatever the reasons may have been for the
board's exclusion of the musical, it could not escape the
obligation to afford appropriate procedural safeguards. We need
not decide whether the . . . production is in fact obscene.").
Defendant argues that prior restraint cases are limited to
situations in which a government tries to restrict all speech
within its jurisdiction. Because Loudoun County residents are
still permitted to obtain unfiltered Internet access in their homes
or offices, defendant asserts, this situation is distinguishable
from those cases. We find no legal support for this argument. See
Reno, 117 S. Ct. at 2349 ("'[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.'") (quoting
Schneider v. New Jersey, 308 U.S. 147, 163 (1939)); Southeastern
Promotions, 420 U.S. 546. In Southeastern Promotions, a
municipality had denied the use of a public facility for the
production of the musical "Hair", which it deemed obscene. The
Court found that "it does not matter . . . that the board's
decision might not have had the effect of total suppression of the
musical in the community. Denying use of the municipal facility
under the circumstances present here constituted the prior
restraint." 420 U.S. at 556.
It is undisputed that the Policy lacks any provision for prior
judicial determinations before material is censored. See Pls. Ex.
10, Def. Res. to Pls. First Req. for Admiss. 31. We find that the
Policy includes neither sufficient standards nor adequate
procedural safeguards. As to the first issue, the defendant's
discretion to censor is essentially unbounded. The Policy itself
speaks only in the broadest terms about child pornography,
obscenity, and material deemed harmful to juveniles and fails to
include any guidelines whatsoever to help librarians determine what
falls within these broad categories. See Pls. Ex. 12, Def. Answer
to Pls. First Req. for Interrogs. 3 ("[T]here is no information
beyond the Policy itself that constitutes the 'criteria' used for
unblocking specific sites."). There are no standards by which a
reviewing authority can determine if the decisions made were
appropriate.
The degree to which the Policy is completely lacking in
standards is demonstrated by the defendant's willingness to entrust
all preliminary blocking decisions -- and, by default, the
overwhelming majority of final decisions21 -- to a private vendor, Log-On
Data Corp. Although the defendant argues that X-Stop is the best
available filter, a defendant cannot avoid its constitutional
obligation by contracting out its decisionmaking to a private
entity. Such abdication of its obligation is made even worse by
the undisputed facts here. Specifically, defendant concedes that
it does not know the criteria by which Log-On Data makes its
blocking decisions. See Bradshaw Dep. at 12-13 (stating that Log-
On Data has refused to provide defendant with the criteria it uses
to block sites). It is also undisputed that Log-On Data does not
base its blocking decisions on any legal definition of obscenity or
even on the parameters of defendant's Policy. See Bradshaw Dep. at
36-37 (agreeing that "there is neither any attempt nor the ability
by [Log-On Data] to apply a legal test"). Thus, on this record, we
find that the defendant has not satisfied the first prong of prior
restraint analysis, establishing adequate standards.
In addition, the Policy also fails to include adequate
procedural safeguards. The three minimum procedural safeguards
required are (1) a specific brief time period of imposition before
judicial review; (2) expeditious judicial review; and (3) the
censor bearing the burden of proof. The Policy, even including the
alleged protections of the unofficial 'unblocking policy', is
inadequate in each of these respects.22 First, the Policy itself
contains no provision for administrative review, no time period in
which any review must be completed, and no provision for judicial
review. See Pls. Ex. 1, Policy. Under the unofficial 'unblocking
policy', a library patron who finds herself blocked from an
Internet site she believes contains protected speech is required to
request in writing that the librarians unblock the specified site.
See Pls. Ex. 4, Internet Procedures at ¶ 13. If the librarian
determines that the site does not fall within the policy's
prohibitions, he will unblock it, although there is no systematic
way in which this is done. See Henderson Dep. at 368-71. There is
no time period during which this review must occur and there is no
provision for notifying the requesting patron if and when a site
has been unblocked. See id.; Timmerman Dep. at 93-94 (stating that
neither patrons nor staff are informed when the defendant unblocks
a site).
The second required procedural safeguard is expeditious
judicial review after the administrative decision is made. There
is no provision whatsoever in the Policy for judicial review of any
blocks. See Pls. Ex. 1. Policy. This makes the question of who
carries the burden of proof in any judicial review proceeding, the
third required procedural safeguard, moot. Because the Policy has
neither adequate standards nor adequate procedural safeguards, we
find it to be an unconstitutional prior restraint.
VI. Severability
While neither party addresses the issue, the Policy includes
a provision that if a part of it is overruled, "remaining portions
remain in effect." Pls. Ex. 1 at 2. In Reno, the Supreme Court
severed provisions of the CDA, declaring its prohibition of
"indecent material" unconstitutional but allowing the prohibition
on obscene material to remain in effect "because [obscene
materials enjoy[] no First Amendment protection." l17 S. Ct. at
2350. The CDA, however, unlike the Policy, did not operate as an
unconstitutional prior restraint; rather, it provided for criminal
penalties only after a judicial determination that obscene material
had been furnished. Because we have concluded that section 2 under
the heading "Internet Services Provided" constitutes an
unconstitutional prior restraint on speech, and that section 2
permeates the rest of the Policy, we hold that defendant's Policy
on Internet Sexual Harassment is unconstitutional.
VII. Conclusion
Although defendant is under no obligation to provide Internet
access to its patrons, in has chosen to do so and is therefore
restricted by the First Amendment in the limitations it is allowed
to place on patron access. Defendant has asserted a broad right to
censor the expressive activity of the receipt and communication of
information through the Internet with a Policy that (1) is not
necessary to further any compelling government interest; (2) is not
narrowly tailored; (3) restricts the access of adult patrons to
protected material just because the material is unfit for minors;
(4) provides inadequate safeguards for restricting access; and (5)
provides inadequate procedural safeguards to ensure prompt judicial
review. Such a policy offends the guarantee of free speech in the
First Amendment and is, therefore, unconstitutional.
For these reasons, the intervenors' Motion to Substitute
Parties will be GRANTED; the plaintiffs' and intervenors' motions
for Summary Judgment will be GRANTED; and the defendant's Motion
for Summary Judgment will be GRANTED as to the standing of John
Ockerbloom d/b/a Banned Books On-Line and DENIED in all other
respects. Defendant will be permanently enjoined from enforcing
its Policy on Internet Sexual Harassment. An appropriate order
will issue.
The clerk is directed to forward a copy of this Memorandum
Opinion to counsel of record.
Entered this 23rd day of November, 1998.
/signed/
Leonie M. Brinkema
United States District Judge
Alexandria, Virginia
1 Although plaintiffs and intervenors have refused to admit
that the Internet contains child pornography and obscene
materials, defendant has provided unrebutted evidence strongly
suggesting that such materials can be found there. For purposes
of this opinion we will assume that such materials are accessible
through the Internet. See Def. Exs. 4-14; see also Reno v. ACLU,
117 S. Ct. 2329, 2336 (sexually explicit material on the
Internet includes text, pictures, and chat and 'extends from the
modestly titillating to the hardest-core.'") (citing ACLU v.
Reno, 929 F. Supp. 824, 844 (E.D. Pa. 1996)).
2 Defendant admits to having blocked The Safer Sex Page, the
Books for Gay and Lesbian Teens/Youth page, and the Renaissance
Transgender Association page, even though it recognizes that none
of them contain prohibited material. See Def. Ex. 18, Def.
Answer to Intervs. Sec. Interrogs.
3 We have also considered the Amici briefs filed by the
Commonwealth of Virginia and the National Organization for Women-Dulles,
et. al., on behalf of defendant. Because we find that
the issues raised in these briefs were adequately covered in the
briefs submitted by the parties, we do not address them
specifically in this Opinion.
4 Indeed, one of the websites defendant did find to be
blocked on February 6, 1998, the Books for Gay and Lesbian
Teens/Youth page, had not been blocked four days earlier when
Sehgal had tried to access it, although links from it to other
websites were blocked. See Sehgal Decl., ¶ 11.
5 Even absent the above analysis, intervenors would likely
have standing to pursue this action as a challenge to a
government action that is "capable of repetition, yet evading
review." See, e.g., Morse v. Republican Party of Virginia, 116
S. Ct. 1186, 1213 n.48 (1996). If defendant could evade court
challenges to its Policy by unblocking the protected speech only
of entities that filed lawsuits against it, it would be able to
continue indefinitely its unconstitutional censorship against
most of the now 80,000 websites it currently blocks. See Pls.
Ex. 13, Dep. of Def. Expert David Burt ("Burt Dep."), at 222.
6 "Links" are text, icons, or images located on a web page
that allow the user by the click of a mouse, to switch to
another specific document "located anywhere on the Internet."
See Reno v. ACLU, 117 S. Ct. 2329, 2336 (1997); see also ACLU v.
Reno, 929 F. Supp. 824, 836-37 (E.D. Pa. 1996) (finding that
links "are short sections of text or image which refer to another
document. Typically the linked text is blue or underlined when
displayed, and when selected by the user, the referenced document
is automatically displayed, wherever in the world it actually is
stored. Links for example are used to lead from overview
documents to more detailed documents, from tables of contents to
particular pages, but also as cross-references, footnotes, and
new forms of information structure. . . . These links . . . are
what unify the Web into a single body of knowledge, and what
makes the Web unique.").
7 See 11126 Baltimore Boulevard v. Prince George's County,
58 F.3d 994 (4th Cir. 1995).
8 See Drive In Theatres Inc. v. Huskey, 435 F.2d 228 (4th
Cir. 1970).
9 See Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir.
1992).
10 Defendant has consistently relied on Board of Education v.
Pico, 457 U.S. 853, 889 (1982) (Burger, J. dissenting) ("[T]here
is not a hint in the First Amendment, or in any holding of this
Court, of a 'right' to have the government provide continuing
access to certain books.") . Pico, however, was limited to the
context of school libraries. It is notable that even Justice
Rehnquist's dissent in that case explicitly recognized the
difference between school libraries, which serve unique education
purposes, and public libraries, which are "designed tor
freewheeling inquiry." Pico, 457 U.S. at 915 (Rehnquist, J.
dissenting).
11 At issue in Kreimer was a First Amendment challenge to
content-neutral library rules that addressed only conduct, not
access to specific materials. The rules: (l) required persons
who were not engaged in "reading, studying, or using library
materials" to leave the library; (2) prohibited patrons from
engaging in various forms of behavior that would harass or annoy
other patrons; and (3) required patrons "whose bodily hygiene is
offensive so as to constitute a nuisance to other persons" to
leave the library. Kreimer, 358 F.2d at 1262-64.
12 Defendant's assertion that the Kreimer court found the
public library to be a non-public forum is simply wrong. See
Kreimer, 958 F.2d at 1262 ("Hence, as a limited public forum, the
Library is obligated only to permit the public to exercise rights
that are consistent with the nature of the Library and consistent
with the government's intent in designating the Library as a
public forum.").
13 This includes both the right to provide information and
the right to receive information. See Kreimer 958 F.2d at
1250-55 (citing, inter alia, Martin v. City of Struthers, 319 U. S. 141
(1943); Lamont v. Postmaster General, 381 U.S. 301 (1965);
Griswold v. Connecticut, 381 U.S. 479, 482 (1965) ("The right of
freedom of speech and press includes not only the right to utter
or to print but the right to distribute, the right to receive,
the right to read . . . ")).
14 In Kreimer, the Third Circuit determined that none of the
regulations at issue were subject to strict scrutiny review
because none of them were content-based limitations on the kind
of expressive activity permitted in the library. Kreimer, 958
F.2d at 1262 ("Significantly, the parties do not contend that any
of the challenged regulations purport to restrict First Amendment
activities on the basis of content or viewpoint.").
15 See Protection of Children Against Sexual Exploitation
Act, 18 U.S.C. §§ 2251-2260 (1984 & Supp. 1998) (criminalizing
activities related to child pornography); 18 U.S.C. § 1465 (1984
& Supp. 1998) (criminalizing transportation of obscene materials
in interstate commerce). However, to the extent defendant's
concern is with its own criminal liability, the Fourth Circuit
has clearly stated that service providers are not liable "for
information originating with a third-party user of the service."
See Zeran v. America Online Inc., 129 F.3d 327, 330 (4th Cir.1997).
16 We note, however, that the legal concept of a sexually
hostile work environment has traditionally been limited to the
employment context, see e.g. Title VII of the Civil Rights Act
of 1964, 42 U.S.C §§ 2000e et. seq. (1994); Johnson v. Los
Angeles Fire Dept., 865 F. Supp. 1430, 1439 (C.D. Cal. 1994)
("There is no doubt that the prevention of sexual harassment is a
compelling government interest."), and, more recently, the
education context, see Gebser v. Lago Vista Independent School
District, 118 S. Ct. 1989, 2000 (1998).
17 Quoting a newspaper article, Burt reported that library
computers "are regularly steered to online photos of naked women,
digitized videos of sex acts and ribald chat-room discussions."
causing legitimate researchers to have to wait in line while
others read "personal ads or X-rated chat rooms." Burt Rep. at
14 (quoting Public Libraries Debating How to Handle Net Porn,
August Chron., July 3, 1997).
18 Burt alleges that filters had to be installed in Orange
County libraries after patrons were accessing hard-core porn
sites "for hours on end." Id. (quoting Pamela Mendels, A Library
That Would Rather Block Than Offend, N.Y. Times, Jan. 18, 1997).
19 The Austin library installed filters after two incidents.
In the first, a librarian caught a patron printing child
pornography on the library printer. In the second incident, at a
different branch, an adult patron was caught teaching children
how to access pornography on the Internet. See id. at l4-l5
(citing Mark Smith, Meeting the Pressure to Filter, Tex. Library
J., Feb. 1997).
20 Although they dispute the legal conclusion to be drawn
from the facts in the record, the parties do not dispute the
facts themselves. Therefore, summary judgment remains the
appropriate vehicle for resolving this dispute.
21 Defendant claims that the library staff has reviewed "more
than 172" websites, see Henderson Decl. at ¶¶ 9-10, out of the
approximately 80,000 that X-Stop currently blocks. See Burt Dep.
at 222.
22 The defendant relies on the undisputed evidence that it
has not denied any of the eleven unblocking requests it has
received thus far to save the Policy. See Henderson Decl. at ¶
16. This is insufficient because, as we noted in our previous
opinion, "forcing citizens to publicly petition the Government
for access to" disfavored speech has a "severe chilling effect."
Mainstream Loudoun, 2 F. Supp. 2d at 797 (citing Lamont v.
Postmaster General, 381 U.S. 301, 307 (1965)); see also Elrod v.
Burns, 427 U.S. 347, 373-74 (1976) ("[T]he loss of First
Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury."). At least one
patron has stated that he failed to request access to a blocked
site he believed was improperly blocked because he was
"intimidated to have to go through that procedure." Pls. Ex. 19.
Kropat First Decl. at ¶ 7.