Case documents are available from the Timeline, below.

It's now official: according to a federal judge in Virginia, the mandatory use of censorware on library Internet terminals used by adults is unconstitutional.

Ruling in a lawsuit brought by local parents and other residents against the Loudoun County library board, judge Leonie Brinkema held that "Although defendant is under no obligation to provide Internet access to its patrons, it has chosen to do so and is therefore restricted by the First Amendment in the limitations it is allowed to place on patron access." She found that the Loudoun library board's policy restricted "the access of adult patrons to protected material just because the material is unfit for minors."

In October of 1997, the board had voted in the nation's most restrictive Internet filtering policy, mandating the use of censorware on adult terminals, and piously reciting the need to protect library users and employees against sexual harassment as a rationale. The policy stated that:

"Site-blocking software (software that blocks by specific site, rather than by suspect-word category) will be installed on all computers. To the extent technically feasible, such software will.....[among other criteria] block material deemed Harmful to Juveniles under applicable Virginia statutes..."

The board then selected X-Stop, from Log On Data Corporation of California, despite the revelation a few weeks before that the product (which claimed to block only illegal obscenity) blacklisted the Quaker web page and the American Association of University Women, among numerous other innocent sites. (Jonathan Wallace, The X-Stop Files.)

After Mainstream Loudoun, an organization of local residents, filed suit, the ACLU moved to intervene, representing a group of twenty small Web publishers whose work was blocked by X-Stop. Jonathan Wallace of the Censorware Project was one of them; the product blacklisted portions of his webzine The Ethical Spectacle specializing in the intersection, or collision, of ethics, law and politics in our society---and lacking any pornographic material whatsoever.

An important feature of the case was the court's determination of the right test to apply to determine whether the Loudoun libraries' use of censorware violated the First Amendment. The plaintiffs argued that the court should apply "strict scrutiny", the most exacting test possible. In order to survive "strict scrutiny", the law or policy under review must be "narrowly tailored" to serve a "compelling government interest". Relatively few laws survive strict scrutiny; the test is harsh enough that very few government actions restricting speech pass it, since few policy-makers take into consideration the hurdles that must be met before speech can be restricted. The Loudoun Board of Trustees was no exception.

Judge Brinkema confirmed that strict scrutiny was the appropriate test of the Loudoun use of censorware. The library board had argued that blocking Internet content was equivalent to a decision not to purchase a book, rather than being similar to a decision to remove one from the shelves. The purpose of this argument was to differentiate Board of Education v. Pico, a 1982 case in which the Supreme Court had ruled that a school board's removal of books from library shelves violated the First Amendment. In an earlier ruling, Judge Brinkema had determined that installing censorware is like removing books from shelves, because the whole Internet is admitted but for the sites selected for blacklisting.

"By purchasing Internet access, each Loudoun library has made all Internet publications instantly accessible to its patrons. Unlike an Interlibrary loan or outright book purchase, no appreciable expenditure of library time or resources is required to make a particular Internet publication available to a library patron. In contrast, a library must actually expend resources to restrict Internet access to a publication that is otherwise immediately available."

By contrast, libraries have very wide discretion to decide not to purchase particular books, and a court would be far less likely to apply strict scrutiny to purchasing decisions.

The judge next analyzed and rejected two other arguments made by the defendant. First, the board argued that the library was not a "public forum." Prior constitutional cases have held that a lesser standard than strict scrutiny is applicable when the speech occurs in a non-public forum. Judge Brinkema held that the library falls into a category known as a "limited public forum" because one of its express missions is "receipt and communication of information through the Internet. Indeed, this expressive activity is explicitly offered by the library." Since the Loudoun board's policy "limits the receipt and communication of information through the Internet based on the content of that information", strict scrutiny was the appropriate test.

The board also argued that its use of censorware was a "time, place and manner" restriction, like a zoning ordinance intended to prevent the creation of a "sexually hostile environment" in the library. Judge Brinkema noted that "time, place and manner" restrictions are meant to be content-neutral (for example, ordinances regulating the time and manner of demonstrations, without regard to the ideas being expressed). According to Brinkema, the board had argued that "a public library could constitutionally prohibit access to speech simply because it was authored by African-Americans....", an argument that Brinkema rejected entirely. She said: "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."

The board claimed that its policy should survive strict scrutiny because it was narrowly tailored to serve a compelling interest. The court assumed (and the plaintiffs did not choose to contest) that "minimizing access to illegal pornography" is a compelling government interest, as is "avoidance of creation of a sexually hostile environment". [However, the Judge noted that the "legal concept of a sexually hostile work environment has traditionally been limited to the employment context", suggesting that if the Plaintiffs had chosen to contest the Defendant's assertions here, they may well have succeeded.] Judge Brinkema went on to hold the board's filtering policy unconstitutional because it was not "narrowly tailored" and because there was doubt the policy was "reasonably necessary" to serve the government's interest. In other words, the abstract necessity of protecting people against obscenity did not spare the board from showing that a real problem existed in the Loudoun libraries, which the board did not and could not do.

Judge Brinkema held that no such problem needed to be addressed in Loudoun. "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."

She said that the policy was not "narrowly tailored" because the library board had not tried any "less restrictive alternatives" to its comprehensive blocking scheme. This failure weighed heavily against the library, because established law requires that even if the government has a compelling interest in restricting certain speech, it must do so in a manner which is the least restrictive possible, and the library had made no attempt to do so.

The judge found that the Loudoun policy was "overinclusive" because it blocked adults from reading protected speech on the grounds it was unfit for minors. "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."

Because the board's policy was "unconstitutional on its face", the judge declined to consider the question of whether X-Stop was the best or "least restrictive" filtering software available. The Policy itself was so flawed that the software used to implement it did not need to be examined. [However, we at the Censorware Project have done so quite extensively. See The X-Stop Files: Deja Voodoo.] Nothing in the opinion suggests that the use of censorware in a public forum could under any circumstances pass the strict scrutiny test.

Judge Brinkema also held that the policy was an unconstitutional "prior restraint", quoting a case which said that the First Amendment is violated when "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."

"Prior restraints" are disfavored by the First Amendment even when used against patently illegal speech. The underlying idea is that only judges are to determine the legality or protected status of speech, not administrators. When an administrative prior restraint is exercised (an example might be the police ordering a store not to carry a particular magazine) the First Amendment requires that the restriction be exercised for a brief time period, during which speedy judicial review is sought. Also, "the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court."

The board argued that its installation of X-Stop was not a prior restraint because unfettered Internet access could still be obtained by users at home or elsewhere than the library. Judge Brinkema brushed the argument aside. "'[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,'" she said, quoting language from a Supreme Court case. As a prior restraint, the board's policy failed to respect the procedural safeguards required by the First Amendment. "[T]he Policy includes neither sufficient standards nor adequate procedural safeguards...[T]the defendant's discretion to censor is essentially unbounded."

(Though Judge Brinkema didn't say so, prior restraint seems to be exactly what the proponents of censorware in public libraries are trying to accomplish: "We ban it indefinitely, we don't go to court, we don't prove it should be suppressed, we make you sue us!". One of the greatest protections of the First Amendment in the U.S.A. is not merely being protected from being punished for many sorts of speech, but also protection from arbitrary, non-judicial, suppression of speech. If people are arrested, they are entitled to a prompt hearing in front of a judge. If speech is to be suppressed, it too is entitled to a prompt judicial hearing - which, with any sort of censorship software, it never gets. Public institutions which use censorware should not delude themselves that new software will solve all their problems - failings such as these are common to any usage of censorware products.)

Opponents of censorware in libraries had long argued that the librarian should not delegate decisionmaking about the appropriateness of content to a private company using vague, undisclosed standards. Judge Brinkema agreed: "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 decisions -- to a private vendor, Log-On Data Corp." She noted the final explosion of Log On Data's claim that its product blocked only illegal speech: "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."

After issuance of Judge Brinkema's order on November 23, the Loudoun libraries briefly suspended all Internet access while formulating a new policy and deciding whether to appeal. After a charged and well-attended meeting of the Board of Trustees, where several national censorship groups testified in favor of the previous policy restricting adult access, Loudoun was back online, with a new policy which made filtering optional for adults and allowed parents to decide whether to require it for children.

On April 1, 1999, Judge Brinkema awarded legal fees to the plaintiffs in the case. In a stated desire to avoid creating budgetary problems for the library, she substantially reduced the awarded amounts, to a total of $106,918 for the two sets of plaintiff attorneys. On April 19, the Loudoun Board of Trustees voted not to appeal Brinkema's ruling, effectively finalizing the case.

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