Plaintiffs Move for Summary Judgment in Loudoun Library Blocking Software Case

(September 6, 1998)  The plaintiffs filed voluminous papers on Friday, September 4, in their lawsuit against the Loudoun County Library over its use of blocking software.  The suit was brought to establish a legal precedent that it is unconstitutional for a public library to install blocking software on its computers. The Motion for Summary Judgment, and Memorandum in Support, seek to have the matter decided without a trial.

A group of Loudoun County residents represented by People for the American Way (PFAW) filed a Complaint in December of 1997 in U.S. District Court in Alexandria, Virginia.  In February a group of Internet publishers represented by the ACLU intervened as additional plaintiffs.

The Loudoun County Library promptly moved to have the case dismissed, citing Section 230(c)(2)(A) of the Telecommunications Act of 1996.   Judge Brinkema refused to dismiss the case, and issued a lengthy opinion on the legal issues, on April 7, 1998.  (See also, 2 F.Supp.2d 783 (E.D. Va. 1998).)

Brinkema held in her April 7 opinion that a libraries' decision to use blocking software can only be upheld if it satisfies the "strict scrutiny test."   She wrote 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."

As a practical matter, once a court decides to apply the "strict scrutiny test,"  the government action is almost always held unconstitutional.

Since the April decision, the parties have been conducting pretrial discovery to learn facts relevant to the dispute.  The Memorandum begins with a lengthy section reciting the Plaintiff's version of the facts.  The Statement of Undisputed Material Facts states that the Library Board last year adopted a Policy on Internet Sexual Harassment that included restricting library patrons' access to certain material on the Internet when using the Libraries' computers.  The Memorandum further states that the Library uses X-STOP filtering software, which uses a confidential list of blocked sites.

The Plaintiffs assert that this software results in both overblocking and underblocking of information.  Finally, they argue that by using  X-STOP software, the Library failed to implement less restrictive measures.

In their legal arguments, the Plaintiffs rely heavily upon two cases: Urofsky v. Allen, 995 F. Supp. 634, 640 (E.D. Va. 1998) and  Mainstream Loudoun v. Board of Directors of Loudoun County Public Libraries, 2 F. Supp.2d at 795 (E.D. Va., April 7, 1998).  Both are opinions written by Judge Brinkema earlier this year.  The issue of whether, or under what circumstances, it is constitutional for the state to use blocking software, has not been addressed by any judge other than Leonie Brinkema.

In their legal arguments, the Plaintiffs first argue that the Policy fails to meet the First Amendment strict scrutiny test.  They argue both halves of the test: there is no compelling state interest in blocking Internet sites, and that by using X-STOP software, the Library has not used the least restrictive means to accomplish that end.

The Plaintiffs' second argument is that the Policy imposes an unconstitutional prior restraint on speech.  The Plaintiff's third argument is that the use of X-STOP software is unconstitutional because it is an imprecise method.

The Plaintiffs' fourth argument is that the Policy is unconstitutional because it is overbroad.  It impermissibly reduces adult Internet access to less than what is fit for children, and it restricts protected speech.  Finally, the Plaintiffs' argue in their brief that the Policy is unconstitutional void for vagueness.

The Congress has been actively considering legislation that would affect content on the Internet, as well as the use of blocking software by schools and libraries.