Judge Denies Motion to Dismiss
Loudoun Blocking Software Case

(April 8, 1998)   U.S. District Court Judge Leonie Brinkema denied the Defendant's Motion to Dismiss in the Loudoun Library case on Tuesday, notwithstanding §230 of the Telecom Act of 1996.  The plaintiffs have challenged the constitutionality of the Loudoun County Library's Policy to use blocking software.  The Judge also ruled that the use of blocking software by a public library constitutes a prior restraint of speech to which the standard of "strict scrutiny" must be applied.   This is a strong indication that this Judge will ultimately rule that the blocking software Policy is unconstitutional.

Larry Ottinger, an attorney for People for the American Way, stated that "the writing is on the wall for this Policy."  Ottinger's organization represents ten Loudoun County residents who claim that their right to freedom of speech has been violated by the Library's Policy of using blocking software.  (See also, PFAW Press Release | ACLU Press Release | ACLU Opinion Highlights.)

§230 Immunity

Leonie Brinkema's decision is strongly supported by civil liberties groups.  However, it also flies in the face of the §230 of the Telecommunications Act of 1996.

This section was enacted in the "Communications Decency Act," which in turn was a part of the huge Telecom Act.  This "act" had several major provisions.  One section prohibited "indecent" communications on the Internet.  The Supreme Court struck that down last year in Reno v. ACLU.  A second, §230(c)(1), immunized interactive computer services from liability (particularly defamation suits) for material provided by others.  A third, §230(c)(2), immunizes those who use blocking software. 

This section protects "interactive computer service" which is defined to include "a service or system that provides access to the Internet [that is] offered by libraries or educational institutions."

Judge Brinkema ruled that §230 did not bar this suit.  She relied on the Fourth Circuit's ruling in Zeran v. America Online, 129 F.3d 327, 330 (4th Cir. 1997).  However, Zeran was a case applying §230(c)(1) to a defamation action against AOL for the postings of an AOL subscriber.  §230(c)(2) was not at issue in Zeran.

Judge Brinkema wrote in her opinion that:

§230 was enacted to minimize state regulation of Internet speech by encouraging private content providers to self-regulate against offensive material; §230 was not enacted to insulate government regulation of Internet speech from judicial review. Even if §230 were construed to apply to public libraries, defendants cite no authority to suggest that the "tort-based" immunity to "civil liability" described by §230 would bar the instant action, which is for declaratory and injunctive relief.   We therefore hold that 47 U.S.C. §230 does not bar this action.  (citations omitted)

According to defense attorney Ken Bass, "the Judge confused two separate functions of the Communications Decency Act."

However, while the Judge refused to dismiss the case, or the individual members of the Library Board, on §230 grounds, she did dismiss the individual defendants on the grounds that since the Library was already a Defendant, it was unnecessary to also name individuals who sit on the Board.  The issue is significant because if opponents of blocking software can sue individuals who vote for blocking software, they can intimidate them with threats of lawsuits and hefty personal financial loss.

Freedom of Speech

Brinkema also used her opinion on Defendant's Motion to Dismiss to rule on the application of the First Amendment "free speech" clause.  It states: "Congress shall make no law ... abridging the freedom of speech."  She ruled that the free speech clause does apply to decisions by state public libraries; that blocking software constitutes a "content based restriction" on free speech; that it is a "prior restraint"; and that the standard of review is "strict scrutiny."

She concluded that the "Library Board may not adopt and enforce content-based restrictions on access to protected Internet speech absent a compelling state interest and means narrowly drawn to achieve that end."  Once a court decides to apply the "strict scrutiny" test,  the government action is almost always held unconstitutional.

Nevertheless, Ken Bass, the Library's attorney, does not does not think that the case is lost.  "This is a first judicial ruling on the issues," he said after the denial of his Motion to Dismiss.  "When she has all of the testimony, ... She will find that use of filtering software, so long as it is supplemented by a means for unblocking (websites), is Constitutional."

"Unfiltered access is not an answer," said Bass.  "Unfiltered access is going to allow access to illegal material."

Other Cases, Proceedings, and Pending Legislation

This case marks yet another instance of a judge substituting a court ruling for the legislative compromises worked out by the Congress in 1996.  For example:

• Last December a U.S. District Court Judge in Texas ruled unconstitutional §271, which bars Bell Operating Companies from providing in region long distance service without FCC permission.  (Related Page: SBC Communications v. FCC.)
• Last July the U.S. 8th Circuit Court of Appeals ruled that the FCC does not have authority under §§251 and 252 to regulate long distance company entry into local markets.  (Related Page: ATT v. Iowa Utilities Board.)
• The U.S. Supreme Court ruled unconstitutional the "indecent communications" section of the CDA in Reno v. ACLU.
• While §230(c)(1) has not been held unconstitutional, it is under review by two courts.  U.S. District Court Judge Paul Friedman in Washington DC has under advisement a Motion for Summary Judgment on this issue in the case Sidney Blumenthal v. Matt Drudge and America Online.  Also, in Zeran v. AOL, the lower courts have upheld and applied §230(c)(1), but Zeran has appealed to the Supreme Court.  (Related Pages: Blumenthal v. AOL and Zeran v. AOL.)

Meanwhile many Congressional critics of the Federal Communications Commission have accused it of not following its mandates under the Act:

• The FCC has not yet granted one request from a Bell Operating Company to provide in region long distance service.
• The FCC, which has a authority under §254(h) to subsidize schools and libraries, has created a corporation under its control, but beyond Congressional oversight, with $2.5 Billion per year in funding, to run its Schools and Libraries program.  A General Accounting Office Report has called the FCC's corporation "illegal".

Whatever happens in this case, the issue is not likely to go away.  The losing party might appeal.  Also, Congress is considering legislation that would mandate the use of blocking software on computers which are subsidized by the Schools and Libraries program.  See for example, S. 1619 and H.R. 3177.  S. 1619 has already been approved by the Senate Commerce Committee, and a watered down version has been endorsed by Al Gore.  These bills also include language which some will argue limits judicial review.  (Related Page: Summary of Blocking Software Bills.)