Appeal Still Possible in Loudoun Case

(February 10, 1999) Its has been nearly three months since U.S. District Court Judge Leonie Brinkema issued her decision which held unconstitutional the Loudoun Country library's Internet porn filtering policy. However, the question of whether the library will pursue an appeal is still up in the air, largely because of an irreconcilable dispute over how much attorneys fees the ACLU and People for the American Way should get. They want $488,601.10.

The Library Board of Trustees decided on December 1, 1998 to "direct our attorneys to take all steps necessary to preserve the right to appeal." They did not decide to proceed with the appeal.

The first step in appealing a judgment in federal court is the filing of a Notice of Appeal. A Notice of Appeal must be filed within 30 days of entry of judgment, which took place on November 23. However, recognizing that disposition of the attorneys fees matter would likely determine whether the Library would pursue an appeal to completion, Judge Brinkema ordered on December 10 that "this Court's order disposing of (Plaintiffs' attorney) fee applications will be deemed the final order for the purpose of determining the time periods for appeal." Also, the Library filed a Notice of Appeal on December 23, 1998, which contained the statement, "this Notice shall not become effective until the Court disposes of all timely Motions for Attorneys Fees."

The American Civil Liberties Union (ACLU) and People for the American Way (PFAW) filed their demands for $488,610.10 on January 22, 1999. The library filed its opposition on February 8. Judge Brinkema has not yet decided how much, if any, attorneys fees should be awarded.

There is a considerable divergence of opinion in Loudoun County over whether or not to appeal, as evidenced by the range of public testimony at the library board's public hearing on December 1. There is divergence on the board itself. However, it is likely that the board would not pursue the appeal to completion, if it does not get hit with an exorbitant attorneys fees award.

Indeed, the reason for preserving the right to appeal, and having Judge Brinkema delay sending the case to the Fourth Circuit Court of Appeals, is to retain some leverage in negotiations, and with Judge Brinkema.

However, if Judge Brinkema were to award the ACLU and PFAW the $488,601.10 they have requested, or something similar, it could provoke the Library to pursue the appeal. In this case, they would likely appeal not only the attorneys fees award, but the underlying decision as well.

They would probably win an appeal.

In most cases it is not important which judge is assigned to the case. They all wear the same floppy black robes. They all go about applying the same laws in the same manner. However, when it comes to several areas of constitutional and statutory interpretation, including the meaning of the free speech clause of the First Amendment, judges vary greatly.

The Plaintiffs had the good fortune of having a Judge assigned to the case who shares their views on free speech and how to interpret the Constitution and statutes. Many other judges probably would have ruled the same way. However, many other judges would have ruled for the library, and either upheld its policy, or dismissed the suit on the grounds that the library has statutory immunity from this sort of suit.

The appeal would be decided by a panel of three judges on the Fourth Circuit Court of Appeals. It is not known which three would be assigned. Some members of the Fourth Circuit generally share Brinkema's views on these issues. Some do not. To a certain extent, the plaintiffs won the first coin flip. If the library pursues the appeal, the parties would flip again. Only this this it would be best two out of three.

Moreover, Judge Brinkema's decision is vulnerable to reversal on several grounds.

Ken Bass, the attorney for the library, believes that Judge Brinkema would be reversed if the case were appealed. He states that there are many grounds for appeal, but the three most prominent are as follows:

• "The First Amendment does not limit a library's decision as to what material to provide to its patrons."
• "Section 230(c)(2) explicitly immunizes libraries" from this type of suit.
• "It is illegal under state and federal law to access obscene materials and the library has a right to prevent it, and that includes filtering software."

Other actions by Judge Brinkema that an appeals court could find to be erroneous would include her ruling that the strict scrutiny standard of review applies to the library's policy, and her ruling that the ACLU's clients (a group of Internet "speakers") has standing to challenge the library policy.

Also, the library does not need to win on all issues. It could have Judge Brinkema's decision overturned on any one of several different appeal issues. And of course, if the underlying decision is overturned, so that the ACLU and PFAW are no longer the prevailing parties, so too would the award of attorney's fees.

So why don't the ACLU, PFAW and the Loudoun library board compromise, like most parties do at some point in litigation? The Library could drop its appeal and agree not to adopt a filtering policy that affects adults, while the ACLU and PFAW could agree not to take attorneys fees, or take something much less than what they have requested.

The parties have not only not settled. They are not even close. Larry Ottinger states that we made "several attempts to set up meetings to discuss possible settlement." However, "Ken Bass," says Ottinger, "refused to meet with us to talk about them." Ottinger says that they have made dollar figure offers, but he refused to disclose the figures to Tech Law Journal. Ann Beeson likewise said that the ACLU would not reveal dollar figures, because it is "confidential." Nor would Robert Corn-Revere talk money with Tech Law Journal.

The Library sees things differently. Bass said that "we did have discussions, and they made some offers outside the range of what" the Library can afford. "The gap between what they were offering and what the Board could afford were too great," Bass concluded. However, he too would not discuss specific dollar figures.

"We don't have any money to negotiate with," said Doug Henderson, the library's director. "We don't have the money to extend an offer to them with."

Most cases settle. Indeed, most parties are elated to win a case on summary judgment (without having to go through with a trial), and are happy to drop or greatly compromise any claim for attorneys in return for cutting off any prospect for appeal.

Settlement may be illusive in the Loudoun case for four reasons. First, neither the ACLU nor PFAW has a real client, in the sense of a client who directs their actions. In most cases the attorneys are hired by clients who tell them what to do. Attorneys are happy, so long as they get paid. The clients are usually anxious to get the ordeal of litigation behind them, and get on with their lives. But for the ACLU and PFAW, who are essentially both client and lawyer, this litigation is not an ordeal. It is their lives. There are not anxious to put anything behind them.

Second, the only hope of financial recovery for the ACLU and PFAW is the library. Most victorious attorneys who negotiate settlements have already been paid by their clients, or have a reasonable expectation of getting paid, usually by their client, an insurer, or through a contingent fee. An attorneys fees award merely shifts the source of payment. The victorious lawyers who have already been paid are happy to negotiate a settlement that calls for each side bearing their own attorneys fees and costs. In this case, the ACLU and PFAW, as lawyers, want to get paid for what they have done. They have no client on the hook for attorneys fees; their only recourse is the Library.

Third, the suit, while nominally against the Loudoun library, has very little to do with the Loudoun library. The ACLU and PFAW are national organizations which want to compel libraries around the country to follow their agenda for libraries. They have won a decision from a local judge. The local library board will follow this judge's order.

But to the sort of people around the country who care passionately about keeping pornography out of their libraries, and who go to their town and library board meetings, Judge Brinkema is not a lawgiver. To these people, she is liberal activist judge. These people tend to believe that Brinkema's opinion is as legally binding upon them as an op-ed in the Washington Post. Many library boards are responsive to this group of people. Indeed, many board members around the country are a part of this crowd.

The ACLU and PFAW recognize that their victory is not the end; it is only the beginning. Without a large awards of attorneys fees, they cannot coerce or punish school boards that ignore the pronouncements of judges like Leonie Brinkema. A huge attorneys fees award would be very useful as an enforcement mechanism. But even this is not enough.

Fourth, Brinkema is just a federal trial court judge. Federal judges do have god-like authority over the parties and attorneys before them, which is all that counts in most cases. But their decisions have little precedential value around the rest of the country. It is the libraries around the country that are the real object of this lawsuit. Federal District Court judges sit at the bottom rung of a three tiered federal judiciary. Another federal judge in another district might hear an almost identical case, and reach the opposite decision -- and not care.

The cause of the ACLU and PFAW would be advanced if a federal appeals court panel were to affirm Judge Brinkema's decision. They would be ecstatic if the Supreme Court did. However, they won in Brinkema's court, so they cannot take the basic issues of the case up on appeal. Only the loser can. And absent a huge attorneys fees award, the library board is not likely to pursue their appeal. Ironically, as many members of the library board now just want this whole case to go away, the ACLU and PFAW have an incentive to provoke them into an appeal. Demanding and winning an unreasonably large attorneys fees award -- say, $488,000 -- just might do the trick.

So, this is what it boils down to. If the ACLU and PFAW were to drop their attorneys fees request, they could keep Judge Brinkema's decision. But this would not be much for them. The people who are likely to follow her opinion are the people who agree with her outlook in the first place. People who disagree with her opinion are likely to ignore it. And without any record of having collected a huge attorneys fees award, there is nothing with which to coerce or intimidate these people. On the other hand, if the ACLU and PFAW stick to their demand for nearly half a million dollars, and Brinkema denies it, they would be no worse off. They are in the same place they would have been if they had settled for little or no attorneys fees. If Brinkema grants it, they probably will provoke an appeal. The chances are good that they would lose the appeal, and Brinkema would be reversed.  But if they were to win, the rewards, both in terms of attainment of policy goals, and notoriety, would be tremendous. Moreover, they could add a few hundred thousand dollars more onto their bills.

So, from the perspective of the ACLU and PFAW, there is a reason to be unreasonable. The considerations that usually lead parties to settle their disputes are just not present in this case.