Loudoun Library Moves for Summary Judgment

(September 6, 1998)  The Loudoun County Library filed a Motion for Summary Judgment in a blocking software case brought in federal court in Alexandria, Virginia.   The Library seeks to have the case dismissed on the grounds that its use of X-STOP blocking software is not unconstitutional, and that the Library has immunity under Section 230 of the Telecommunications Act of 1996.  The Library also seeks to have the Intervening-Plaintiffs dismissed for lack of standing to bring suit.

People for the American Way (PFAW) filed a lawsuit against the Loudoun County Public Library last December alleging that its use of X-STOP blocking software on library computers denies library patrons (ten of whom are PFAW's clients) freedom of speech.  The American Civil Liberties Union (ACLU) intervened in February on behalf of a group of websites, website operators, and individuals whose material is published on the web.  On September 3 and 4 the ACLU, PFAW, and the Library all filed motions for summary judgment.

The Plaintiffs all allege that their First Amendment free speech rights have been violated by the Loudoun County Library.  The Library's Summary Judgment brief disputes this.

The Library asserts in its brief that "The Intervenor-Plaintiffs' First Amendment claim is not only unsupported by precedent, it is contradicted by the 1982 decision of the Supreme Court in Board of Education v. Pico."

The Library elaborates that:

To our knowledge no court has ever held that libraries are required by the First Amendment to fulfill a publisher's request to provide a pornographic film – or any other information -- within its resource collection. In this case, the Intervenor-Plaintiffs seek to obtain such relief and assert such a right, but in the context of the world of electronic rather than physical publications.

The original Complaint was filed by People for the American Way (PFAW) on behalf of a group of Loudoun County residents, who go by the name Mainstream Loudoun.  Two months later the American Civil Liberties Union (ACLU) intervened in the suit on the basis that it represents a number of websites that have been blocked by the X-STOP software used by the Loudoun County Library.  The ACLU asserts that their constitutional right to freedom of speech is violated by being blocked.

The Library's argument in its Summary Judgment brief is that these intervening plaintiffs should be dismissed because they lack standing to bring suit.  In federal courts, standing is a constitutional doctrine.  Like so many other constitutional doctrines, it is not mentioned in the Constitution.  However, courts have inferred it from the Article III language that "The judicial Power shall extend to all Cases ... [and] Controversies ..."

The Library argues that:

"Because the Intervenor-Plaintiffs have suffered no "concrete injury in fact" or no longer suffer any "injury that could be redressed if the requested relief is granted," the Intervenor-Plaintiffs cannot meet their burden of establishing an actual case or controversy under Article III of the U.S. Constitution."

The Library's brief elaborates that "None of the materials published by or on behalf of any of the Intervenor-Plaintiffs has been blocked in the Loudoun County Library System at any time since their intervention."  While some where initially blocked, they have all been permanently unblocked by library staff.  Hence, they have nothing to gain from proceeding with the suit.

The Library next argues that several of the intervening plaintiffs are not even legal entities capable of bringing a lawsuit.  "Three of the Intervenor-Plaintiffs are not jural persons and hence cannot be a party to any litigation because they lack any legal capacity to sue or be sued."  The Library asserts that these cites are run by individuals, but the individuals have not sought to intervene.   "Specifically, neither the Safer Sex Page, the Banned Books Online page or the Books for Gay and Lesbian Teens/Youth are published by any legal entity."

However, the Library adds more arguments.  One website also was never even blocked by X-STOP software: Banned Books Online.  Another plaintiff, Robert Morse, does not own the website material which he alleges was blocked.  "Robert Morse is a writer employed as a columnist by the San Francisco Examiner. As such all intellectual property rights in the columns he writes have been assigned to the newspaper."

The Library's brief sticks to legal arguments pertaining to whether these plaintiffs satisfy the doctrine of standing.  It does not address why the intervening plaintiffs might lack standing.

The ACLU, not its purported clients, are the real party in interest in this case.   The ACLU has intervened in this case because it wants to use the courts to legislate its policy preferences in lieu those adopted by duly elected public officials and their employees -- the Congress which passed the Section 230 immunity clause, and the Library Board and employees which adopted the Policy and purchased the software. Finding "clients" is merely a legal formality.  Hence, they have only a very tenuous basis for intervening.

The Library also argues in its brief that it has immunity from this sort of suit under Section 230 of the Telecommunications Act of 1996.

The brief argues that "current federal law authorizes and protects the good faith use of filtering software to prevent acquisition, exhibition and distribution of material determined to be objectionable by a provider of any "interactive computer service.""

"Congress enacted the Communications Decency Act in part to eliminate the "threat of litigation element" that could deter libraries, schools, or businesses from using filtering software to screen, possibly constitutionally protected but objectionable, materials available over the Internet."

As plain and direct as the language of Section 230 may be, Judge Brinkema ruled in her April 7 Opinion that the Library does not have immunity in this case.  Judge Brinkema did not, however, rule Section 230 unconstitutional.