Judge Awards ACLU and PFAW $106,918.25 in the Loudoun Library Case

(April 13, 1999) Judge Leonie Brinkema awarded the ACLU and People for the American Way $106,918.25 in attorneys fees and costs in their suit against the Loudoun County Library for using software to filter out Internet porn. They had asked for over $488,000.00. The decision may lead the library board to decide not to pursue an appeal when it next meets on April 19.

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 web sites, respectively. They claimed that the use of X-Stop filtering software on the libraries' computers violates the First Amendment rights of both library patrons and web sites. U.S. District Court Judge Leonie Brinkema issued her decision in favor of the Plaintiffs on November 23, 1998.

Both the ACLU and PFAW filed bulky motions and exhibits with the District Court in Alexandria, Virginia, on January 22, 1999. The exhibits detailed the attorneys' professional qualifications, itemized their time spent working on the case, and listed out of pocket expenses. The combined requests came to over $488,000.00.

The Loudoun Library argued in its brief, filed on February 8, that no award of attorneys fees should be made. It presented two arguments: first, since the suit was was addressed to defendant's legislative activities, it is immune from all monetary liability; and second, it has immunity under 47 U.S.C. §230(c)(2)(A). Judge Brinkema rejected both of these arguments.

The Loudoun Library also argued that even if attorneys fees were awarded, the nearly one half million dollars requested was excessive. The Library suggested that fees should be similar to the $133,932 billed (but not entirely collected) by its attorney, Ken Bass. The Library prevailed on this argument. Judge Brinkema scaled back the award to less than one quarter of the requested amount.

Judge Brinkema disallowed many items, but the biggest paring was a 75% reduction in attorneys fees, on the basis that a large award would only hurt the people the suit was brought to protect. She reasoned that:

"any large award of attorneys' fees will likely result in a decrease in the resources and services available to library patrons, possibly including Internet services. This could result in significant harm to the interests of library patrons, whose access to materials was being championed by plaintiffs, and to the interests of those who seek to communicate with library patrons through library materials, whose rights were being championed by intervenors. Where an award of attorneys' fees might serve to undermine the interests of the very parties who prevailed in the litigation, it is appropriate to reduce the award." (at pages 13-14.)

Said Ken Bass, "we are quite pleased." However, he would not speculate on the likelihood of an appeal. He would only state that "the client will be meeting on the 19th."

Judge Brinkema's decision reflects a change of course. In a similar case, Urofsky v. Allen, Judge Brinkema awarded the ACLU $291,000, which was substantially what it had requested. However, a three judge panel of the 4th Circuit Court of Appeals issued an opinion reversing her underlying decision by a vote of 3 to 0 on February 10, 1999.

In that suit, the ACLU brought a very similar First Amendment challenge to Virginia's statute forbidding state employees from using their office computers to surf for pornography. Specifically, Section 2.1-804-806 of the Virginia Code prevented state employees from using their computers to download, post, or transmit sexually explicit materials. Judge Brinkema was also the Judge in that case. She ruled that the First Amendment had been violated. And, she granted the ACLU's motion for attorneys fees.

The Loudoun Library Board of Directors has put off making a decision whether to proceed with an appeal in its case, pending the outcome of the attorneys fees decision. Some of the Board Members are willing to drop the case, and agree not to use filtering software, but scoff at the notion of paying a huge attorneys fees award. Judge Brinkema's ruling may have reduced the request sufficiently to ensure that the decision will not be appealed.

The Library Board's next meeting is on April 19 at 7:30 PM. The library director, Doug Henderson, told Tech Law Journal that "my board will next meet April 19 and decide what they want to do." The meeting is open to the public, and any decision must be made in public. However, Henderson predicted that the board would conduct its deliberations in an executive session which is not open to the public. Henderson also stated that the meeting has a public comment period, but he has not heard of much interest in testifying.