Court Holds Hearing in Loudoun Case

(February 27, 1998)  Federal Judge Leonie Brinkema held a hearing on pre-trial motions  in Mainstream Loudoun v. Loudoun County Public Libraries.   The Plaintiffs seek to prevent the library for using blocking software on its computers, while the Library wants to keep using the software to prevent library patrons from accessing obscene materials on the internet.  Both sides asked the judge to rule without going through to trial.  Brinkema heard lengthy arguments, but announced no decision.

This policy oriented suit is being pressed by two high profile liberal interest groups, the ACLU and People for the American Way.  This case brings together some of the same parties and attorneys who successfully challenged the CDA in ACLU v. Reno.  The ACLU opposes any bills, and vigorously challenges in court state and federal laws, which restrict the exchange of indecent content, or material which is harmful to minors.   To date, the ACLU has won four court decisions.

People for the American Way is representing a group of Loudoun County residents who claim that their free speech rights are violated if they are not able to view any website on the internet.  The ACLU is representing a group of website operators and content providers whose sites were blocked.  These include sites with political commentary, gay advocacy, sadomasochistic art, teenage gay literature, and safe sex advocacy.   The Library's attorney, Ken Bass, stated at the hearing the each of these sites has been "unblocked" by the Library by adjustment to the software.

Attorney Bass argued that Supreme Court precedent for the proposition that schools can control the content of their libraries should be controlling in this case.  However, Judge Brinkema suggested that public libraries should be treated differently from public schools.  "You are using what is harmful to juveniles as a standard for adults ... isn't that a problem?"

Ken Bass also argued that the Section 230 of the Telecommunications Act of 1996 protects the Library from suit in this case.  It provides in relevant part that,

"(2) CIVIL LIABILITY- No provider or user of an interactive computer service shall be held liable on account of--

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;"

People for the American Way's attorney, Robert Corn-Revere, argued that this clause was meant to protect private parties, such as America Online and Prodigy, but not state action.

Urofsky Case

The prospects for the County Library are not good.  Yesterday, in the case Urofsky v. Allen, Judge Brinkema held  unconsitutional a Virginia state statute which probihited state employees from using state owned computers from accessing sexually explicit materials.   

Whatever the outcome, this case is likely to be appealed to the Court of Appeals. 

Individual Defendants /  Attorney Fees.

The lawsuit also named a defendants the members of the Library Board who voted in favor of installing blocking software.  Brinkema did rule from the bench today that she would grant the Libraries' motion to dismiss the individual Defendants, on the grounds that officials are immune from suits arising out of thier exercise of their legislative responsibilties.  ACLU attorney Ann Beeson vigorously opposed this ruling.

The issue was significant because the Plaintiffs' attorneys will claim attorney fees if they win their case.  Six attorneys for the plaintiffs came to court.  Suing individual legislators and board members serves to intimidate local officials and librarians from using blocking software.

Blocking Software

The software at issue is named XSTOP.  Like most blocking software, it includes a large list of URLs which are blocked.  These lists are usually compiled by a process which relies heavily on computer searches of website text.

The Loudoun case involves claims that first amendment rights are violated when software blocks political, sexual, and artistic content on the internet.  None of the attorneys' court papers or oral arguments addressed the quesion of whether blocking commercial content, such as banner ads, violates the First Amendment.  None of the attorneys questioned by Tech Law Journal after the hearing had any opinion regarding commerical speech.