ACLU and PFAW Seek $488,601.10 in Attorneys Fees in Filtering Suit

(February 10, 1999) The ACLU and People for the American Way have requested a total of $488,601.10 in attorneys fees and costs in their suit against the Loudoun County public library for using software that filters out Internet pornography. Last November Judge Binkema ruled against the library, on motions for summary judgment, without a trial.

Almost all of the money claimed is for time spent by eight attorneys, working at hourly rates as high as $240 per hour, for as much as 16.66 hours in one day. One $240 per hour lawyer billed 1.7 hours for "downloading" a program, and another 2.3 hours for a "lunch" -- a $552 lunch.

"It is not at all outside the range of normal legal fees," said Ann Beeson, of the ACLU. "It is fairly standard."

People for the American Way (PFAW) and the American Civil Liberties Union (ACLU) both sued the Loudoun County Library, nominally on behalf of local residents and blocked websites, respectively. They claim that the use of X-Stop filtering software on the Libraries' computers violates the First Amendment rights of both library patrons and websites. Judge Brinkema issued her decision in favor of the Plaintiffs on November 23, 1998.

Constitutional questions grab the headlines, and dominate the legal and public rhetoric. But when it comes to the case dynamics, and the motivations of the local library officials, interest groups, and lawyers, the most important issue could be attorneys fees. The lawyers who bring constitutional challenges to the decisions of local libraries stand to recover massive attorneys fees awards. This provides the lawyers a huge incentive to bring suit, and a financial sword with which to threaten local officials. These awards can be way out of proportion to a library's ability to pay. Sometimes, fear of these awards, more than constitutional issues, intimidate local officials from making decisions that they and their communities think best, lest they offend distant public interest lawyers. On the other hand, without generous attorneys fees awards, many citizens who feel constitutionally aggrieved by their local governments, would not be able to secure legal representation.

Both the ACLU and PFAW filed bulky motions and exhibits with the U.S. District Court in Alexandria, Virginia, on January 22, 1999. The exhibits detail the attorneys' professional qualifications, and itemize their time spent working on the case. For example, time records show that another attorney, who researched and drafted pleading for the first oral argument last February, then billed another 80 hours to prepare for that oral argument.

"Frankly, it seems like they are trying to intimidate other libraries," said David Burt, a librarian who heads Filtering Facts, a group that supports the use of filtering software in public libraries. "The people who are going to suffer are the librarians, who are going to have to make drastic cuts in services."

Burt was deposed as an expert witness in this case. "Book purchases are really a small part of its budget," said Burt. Instead "personnel and maintenance" make up most of library budgets. Hence, "evening hours and Sundays are usually the first things to go."

Doug Henderson, the director of the Loudoun County libraries said that "it will impact us heavily. That is over ten percent of our budget." The current budget is $4.6 Million. The largest component is personnel. Book acquisition accounts for about $700,000. The library spends about $1400 per year to provide patrons with Internet access. Loudoun is a large and rapidly growing county in the Virginia suburbs of Washington DC.

Ken Bass, the attorney for the library, opposes the motions, for many reasons. The work by the ACLU was redundant, and therefore, the library should not have to pay for it. The bills are excessive. Moreover, Section 230 of the Telecommunications Act of 1996 provides that the library has statutory immunity from any attorneys fees awards. Ken Bass, whose own billing records add up to $133,000, but who is only being paid $55,000, argues that even if the judge awards attorneys fees, it should not exceed $125,000.

Both PFAW and the ACLU filed separate complaints; both submitted huge bills. Their efforts were largely redundant. PFAW brought suit first on behalf of a group of residents of Loudoun County. PFAW put Elliot Mincberg and Larry Ottinger on the case. Both have sterling legal trainings and backgrounds, and vast experience in civil rights and First Amendment litigation. Moreover, they were backed up by the highly competent legal staff of PFAW. Mincberg and Ottinger alone would have briefed and argued all constitutional issues before the Court with distinction.

However, they also brought in Robert Corn-Revere and other lawyers from the prestigious Washington DC firm of Hogan and Hartson. Corn-Revere is an authority on cyberlaw issues, and recently served as counsel to the Chairman of the Federal Communications Commission. At this point, the plaintiff's side had a legal dream team.

But then, the ACLU intervened in the case. The ACLU's Chris Hansen is an outstanding lawyer. Ann Beeson is young, but highly competent at what she does. But their addition to the case was overkill.  Their work duplicated that of the lawyers already in the case. Their involvement has done much to advance the reputation of the ACLU and its attorneys. The award of attorneys fees would go a long way in funding future ACLU activities. But, their actions added almost nothing to the legal process. The ACLU now motions the Court to have the people of Loudoun County pay $187,890.73 for their superfluous legal work.

Ann Beeson, of course, sees the matter differently. PFAW represents Loudoun County residents, who are "listeners." The ACLU represents people associated with websites, who are "speakers." "There were free speech interests that were not being represented," said Beeson. For example, hypothetically, there could have been a conflict between listeners and speakers; they could not be certain that library patrons would represent the interests of all Internet speakers.

Supporters of library filtering accuse the ACLU and PFAW of using attorneys fees to intimidate library board members. For example, Bruce Watson of Enough is Enough, had this to say about the motions in the Loudoun case: "I would interpret it as being pure intimidation." Moreover, "this to me is a distortion of the legal system." Donna Hughes, also of Enough is Enough, was sarcastic: "Oh, they really care about libraries, don't they."

"They certainly are not hesitating to put that right up front," said Watson. He also finds it "ironic" that a group that professes to espouse free speech is using threats of attorneys fees awards "to chill free speech."

The ACLU and PFAW do not see their actions as intimidation. Instead, any attorneys fees award would be the fault of the members of the library board who voted for the filtering policy. "We worked with Mainstream Loudoun to stop this policy," said Larry Ottinger of PFAW. "You had a few board members who had a political agenda," he continued. "They put this above the Constitution and the County taxpayers." Jeri McGiverin, the head of Mainstream Loudoun, advanced a similar argument in an op-ed published in the Loudoun Times-Mirror on February 3.

Nevertheless, the actions of the ACLU and PFAW in the Loudoun case lend support to the allegations of intimidation. They initially sued the both the library, and the individual board members who voted for the policy. This would have left these people personally liable for the attorneys fees payment. Moreover, when Ken Bass, the attorney for the library, moved to have them dismissed, on the grounds that they have immunity from suits for their official actions, the ACLU objected vociferously.

Judge Brinkema dismissed the individual board members from the suit. However, going after these people personally served no legal purpose. Suing the library alone is sufficient to strike down its policy. But, this sent a signal to public officials that if you vote against the ACLU and PFAW, they will try to ruin you financially.

Similarly, the ACLU and PFAW have advertised the attorneys fees issue. For example, on the day that Judge Brinkema ruled in favor of the Plaintiffs, Chris Hansen stated in an ACLU press release: "Let's allow the librarians get on with the business of providing information to the public rather than spending taxpayer money on further litigation."

Similarly, Elliot Mincberg said in a PFAW press release dated January 29, 1999 that "It is our fervent hope that Wichita Falls city council members will avoid the costly and divisive litigation that will almost certainly result if this policy is adopted." A public library in Wichita Falls, Texas, is considering adoption of a policy opposed by PFAW.

Finally, Ann Beeson had this to say about the attorneys fees rules: "they exist partly as a deterrent." When asked if the ACLU is telling other libraries about attorneys fee awards, she said that "we have done that already." For example, before the ACLU filed suit against the Loudoun library, "we tried to use that to dissuade the Library." She added, "I am sure we will say the same thing to other library boards around the country."

Opponents of Internet filtering in public libraries proudly proclaim that Judge Brinkema's decision has resolved the dispute in their favor. However, advocates of filtering, such as David Burt, argue that Judge Brinkema's constitutional analysis is having little persuasive effect on other library boards; and as a result, filtering opponents are resorting to the attorneys fees issue.

Several recent studies shed a little light on this subject."A survey of Ohio libraries suggests that some 17% are filtering -- close to the national average reported in other studies ..." wrote Susan Hagloch, the Director of the Tuscarwas County Public Library, in the February 1 issue of the Library Journal.  Similarly, a survey conducted by the Oregon Library Association, and published in January, found that 8% of Oregon public libraries filter both children's and adults' Internet access, and another 11% filter only for children.

However, Hagloch also wrote that 84% of libraries place computers in high profile locations, "where, presumably, the awareness of passers-by deters inappropriate use." Also, 74% use "the informal 'tap on the shoulder' method, in which a staff member tells users to leave a site they consider inappropriate. This policy has long been criticized by the American Civil Liberties Union and by Judith Krug ..." (of the American Library Association).

David Burt says that "the ironic result of all these threats about suits about filters is that libraries have adopted a policy that is more restrictive, and that is the 'tap on the shoulder'."

Burt says that surveys show that there are currently about 1,000 libraries with filtering policies similar to the one struck down by Judge Brinkema. However, "there has not been a big impact" since the ruling. "It has not prompted libraries to changed their policies." Now, he believes that the ACLU and PFAW's request for attorneys fees "is clearly an attempt to intimidate," by "using economic coercion to try to intimidate libraries."

A lot of people, particularly the sort who favor filtering out porn, do not believe Judge Brinkema's opinion should be given any weight. For example, Linda Chavez, who is the former director of the United States Commission on Civil Rights, and current President of the Center for Equal Opportunity, testified to the Loudoun library board in December:

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.

Chavez is also a nationally syndicated newspaper columnist, a TV commentator, and a resident of Loudoun County. She urged the library board to appeal Judge Brinkema's decision.

The high level of respect and deference that most Americans have for judicial decision making erodes when they perceive that judges are engaging in functions that are legislative in nature. Brinkema's decisions in the Loudoun case have defied two legislative bodies: the Loudoun library board (by striking down its filtering policy) and the U.S. Congress (by refusing to apply the plain language of Title 47, Section 230(c)(2).) Moreover, many ordinary citizens consider that setting policies for dealing with obscenity entails a resort to moral and community values, which are the province of legislative bodies, not a resort to laws, which are the province of the courts. So, the dozens of Loudoun County residents who testified about Judge Brinkema and her decision in very unflattering terms at the December 1, 1998 library board meeting are probably not in the habit of bashing federal judges. And probably, if they were called as jurors, would respect without question Judge Brinkema's rulings on evidence and jury instructions in lawsuit involving a contract dispute between two businesses. But, for this "no porn" crowd in Loudoun County, and their ilk around the country, Brinkema's porn filtering decision lacks legitimacy.

The Loudoun library board has not yet decided whether to pursue its appeal. According to Ken Bass, "the Board's appeal decision is going to be affected by the Judge's decision" on attorneys fees.

Continue to part 2, Billing Records Reveal Details of Case.