Loudoun County Library Board Votes to Preserve Appeal in Internet Filtering Case

(December 2, 1998)  The Loudoun County Library Board voted at the end of a long and sometimes stormy public meeting Tuesday night to "direct our attorneys to take all steps necessary to preserve the right to appeal."  Last week Judge Brinkema held unconstitutional the Library's policy mandating Internet filtering software on all computers used by library patrons.  The Library Board also approved a new Internet Use Policy that provides for filtering software, but allows adult patrons to decide whether or not to use it, and allows parents to decide for their minor children.

On November 23 U.S. District Court Judge Leonie Brinkema issued her controversial decision which held that the Library's previous policy of installing blocking software on all computers violated the First Amendment.   Immediately after that ruling the Loudoun libraries ceased providing Internet access to patrons.

The Board passed a motion to preserve its appeal rights.  However, there was no debate or explanation.  The Chairman of the Library Board, John Czaplewski, declined to elaborate on the vote after the meeting.  He referred questions to the Library's attorney, Ken Bass, who in turn declined to elaborate either, other than to say; "we have some open issues that we need to discuss with the other side."

The vote was 7 to 1.  Linda Conti-White, a staunch opponent of the policy struck down by Judge Brinkema, cast the only negative vote.

The Board's vote stopped short of deciding to carry through with the appeal.  It leaves until later the decision of whether or not to proceed.  The Library Board must file a Notice of Appeal with the U.S. Court of Appeals within 30 days of the date of Judge Brinkema's decision if it is to preserve its right to proceed with an appeal.  The Board's decision has the effect of instructing its attorneys to file this Notice.

This is a case of first impression.  Hence, the decision regarding whether or not to appeal is of great consequence throughout the country.

The new Internet Use Policy provides that the Library will continue to provide Internet access.  Many witnesses at the hearing had urged the Board not to provide Internet access until and unless Judge Brinkema's opinion is reversed.  Two Board members voted against the new Policy: Chris Howlett and Ken Welch.

The new Policy states that the Library will provide both "filtered"and "unfiltered" access to the Internet.  Adults will decide which type of access they will use.  Also, parents or legal guardians will make the decision for their minor children.

The new Policy also provides that the Library staff may install screens on computers which only allow a person sitting directly in front of the computer to see what is on the screen.  Library Director Doug Henderson stated during the discussion of this Policy that the Library is acquiring screens.

The Library Board meeting lasted from 7:30 PM ET until midnight.  The Board first heard a report from its lead attorney, Ken Bass, of the law firm of Venable Baejter & Howard. He summarized Judge Brinkema's opinion, and the options open to the Board.   The Board next heard public testimony from almost 40 local residents.  Next, individual Board members made public statements.  The Board then went into executive session with its attorneys.  When the Board came out of its closed session it proceeded to vote on a new Internet use policy, and on instructions to its attorneys regarding appeal.

There were about 150 people in the hearing room during the first two hours.  Almost everyone, except the Board members, library staff, and journalists, wore large label tags identifying their position.  Those supporting filtering software wore square tags with the words "No Porn".  The opponents of filtering software wore large circular tags.  Their tags had the word "censorship" inside a circle, with a diagonal line drawn through, thus resembling a "no entry" traffic sign.  The "No Porn" tags were in the majority.  Also, about three quarters of those who testified were from the "No Porn" camp.

There was little common ground between the two groups of witnesses.  The groups were sharply divided ideologically, and often hostile towards each other.

The "No Porn" witnesses supported the original filtering policy, and advocated appealing Judge Brinkema's decision.  Many argued that with mandatory filtering, children would be at risk, and men using pornographic websites would create a sexually hostile atmosphere for women.  Some of these witnesses also sharply criticized Judge Brinkema.

The witnesses from the "No Censorship" camp generally praised Judge Brinkema's decision and the First Amendment, decried censorship, argued that filtering software does not work, and opposed its use, except on a voluntary basis.

Loudoun County is inhabited by a variety of citizens.  Until recently, it was predominantly rural.  However, as the Washington DC metropolitan area has grown, the outer suburbs have extended into Loudoun County.  It is now home to many high tech companies and posh surburbs.  It is also the home of many of Washington's political elite.

The witnesses at the hearing reflected this mix.  Some of the "no porn" advocates wore blue jeans and quoted from their Bibles, while others sported slick suits and power ties.

Several political players who reside in the County testified.  These included Mike Ferris, a recent candidate for Virginia State Attorney General on the Republican ticket, Richard Block, a former library board member and now Virginia state legislator, and Bob Knight, of the Family Research Council.  However, the witness who ignited the faithful was Linda Chavez, former director of the U.S. Commission on Civil Rights, and currently a nationally syndicated political columnist and TV pundit.  Chavez's statement began:

"Judge Brinkema's decision goes far beyond any reasonable interpretation of the 'free speech' clause of the First Amendment and sets dangerous legal precedent that if left unchallenged will debase the political freedoms of citizens in a democracy to enact sensible policies designed both to protect children and uphold community standards of decency and decorum in public places."

In addition to reviewing first amendment law, Chavez attacked Brinkema's judgment and competence.

"Judge Brinkema's judgment on issues related to pornography is highly suspect. In 1995, for example, she sentenced a defendant convicted of collecting child pornography to probation, because she believed his behavior did not threaten others. A few months later, the defendant was arrested after failing to report to his probation officer an incident in which he was found watching young boys shower at a recreational center."

Chavez concluded: "Judge Brinkema's record of reversal on appeal -- she has been overturned 10 times on drug sentencing cases alone -- and the novel views she espouses in her opinion in Mainstream Loudoun suggest that the Board of Trustees would likely prevail in the Fourth Circuit. It is your duty to defend the Board's policy by appealing Judge Brinkema's baseless and dangerous decision."

The "No Porn" crowd applauded and cheered wildly.  The rest sat in stony silence.

Jeri McGiverin read a statement on behalf of the group named Mainstream Loudoun, which was the original Plaintiff in the lawsuit.  She opposes requiring adults to use computers with filtering software.  She continued:

"Whether Internet access for minors should be with or without filtering software is a decision best left to each parent. Because filtering software often fails to block what it is intended to block, parents must be included as much as possible in decisions regarding their children's Internet use. Unfortunately, some filtering proponents speak of filters as though they were failsafe programs, creating a false sense of security for parents, who may then erroneously assume that as long as filters are present, their guidance is not necessary."

Similarly, Mark Dowson, who is a graduate of M.I.T., argued that filtering software does not work.  "Filters do not work very well.  They let through things that they are not supposed to.  They block things that they are not supposed to. ...  It is inevitable."

Supporters of filtering software were adamant.  Meg Brown argued that without the filtering policy, "it would turn our library into a high tech peep show."   Bob Knight worried aloud that "it will destroy what we have right now, and that is decent family libraries."  Kenetta Ross said that without filtering, men come to libraries to view Internet pornography: "there are people we don't normally see in the library."  Women have a "right to work in an atmosphere free of pornography," said Deborah Gallard.  "Pornography on the Internet constitutes a sexually hostile environment."

Meanwhile, Ken Phillips offered that "before there were radical judges, there was a Jesus Christ."  After explaining the relevance of Matthew, Chapter 18, to filtering software, he admonished the Board: "Take it to the Supreme Court if necessary, because Jesus Christ is with you."