Judge Hears Summary Judgment Arguments in Loudoun Library Case

(September 28, 1998)  U.S. District Court Judge Leonie Brinkema heard oral arguments on Friday, September 25, regarding the constitutionality of the Loudoun County Library's use of blocking software on library computers.  Judge Brinkema made no rulings at the hearing, but stated that she would rule by early next week on whether the case would go to trial on October 14.

This case of first impression is pending in federal court in Alexandria, Virginia, just across the Potomac River from Washington DC.  The presiding Judge Leonie Brinkema is a liberal judicial activist and Clinton appointee.

Last October the Loudoun County Public Library adopted a Policy on Internet Sexual Harassment which required the library staff to install blocking software on the computers which patrons use to access the Internet.  This Policy stated that:

"Library pornography can create a sexually-hostile environment for patrons or staff.  Pornographic internet displays may intimidate patrons or staff, denying them equal access to public facilities. Such displays would transform the library environment from one of reading and scholarship to one which invites unwelcome sexual advances and sexual harassment."

The Policy further calls for software to "block child pornography and obscene material ... [and] block material deemed Harmful to Juveniles."

Two large Washington interests groups, the American Civil Liberties Union (ACLU) and People for the American Way (PFAW), promptly sued the Library, nominally on behalf of blocked websites and local residents.  They claim that the use of blocking software on the libraries' computers violates the First Amendment rights of both websites and library patrons.

The plaintiffs came to court Friday with more lawyers than Microsoft or the government have been fielding in their landmark antitrust suit.  However, only two were allowed to participate in the oral argument.  Robert Corn-Revere, of the law firm of Hogan & Hartson, argued the case for PFAW.  Ann Beeson, of the New York City office of the ACLU, also participated.

Ken Bass, a partner in the law firm of Venable Baejter & Howard, argued the case for the Loudoun County Library.  He was accompanied by one associate.  Melissa Wells-Petry, an attorney for a local chapter of the National Organization for Women (NOW), argued as an amicus curiae.  This NOW chapter supports the Library's Policy on Internet Sexual Harassment, and its use of X-STOP to weed out pornography.

According to the summary judgment briefs, and oral argument of counsel, the Library Director selected a blocking software product called X-Stop, which is developed and sold by Log-On Data Corporation.  (Log-On is not a party to the lawsuit.)  This company uses an automated method, called "MudCrawler," to search and select suspect websites for possible inclusion on the list of blocked websites.  These sites are then viewed by a person to determine whether they should be added to the list of sites which the software blocks.  Log-On continually updates this list, and distributes software updates to its customers.  However, the actual URLs and website names on this list is a closely guarded trade secret.  Also, the customers, such as the Loudoun Library, have the ability to both add to, and delete from the list of blocked sites.  It is the practice of the Library to accept requests for unblocking from patrons, then review such sites, and make a determination regarding whether or not to unblock them.

Ken Bass, attorney for the Loudoun County Public Libraries, argued first.  He urged Judge Brinkema to reverse the ruling in her April 7 Opinion that the "strict scrutiny standard" applies to the Library in this case.

"Strict scrutiny" is one of those constitutional standards that is not mentioned in the Constitution. It is one of several standards of review that the courts apply when determining whether a statute which creates classifications is Constitutional.  Other standards of review are the "rational basis" test, and "intermediate scrutiny", which are likewise inventions of the judiciary.

The determination of which standard of review to apply to a case usually controls who wins the case.  When "strict scrutiny" is applied, the government action is almost always held unconstitutional.  When the "rational basis" test is applied, the government action is almost always held constitutional.

In the present case the government action under review is the Loudoun County Public Libraries' adoption of its Policy on sexual harassment, which requires the use on blocking software on the computers in the public libraries, and the implementation of that policy.

Ken Bass argued that strict scrutiny is applied where there is a content based prior restraint of protected speech.  However, he argued that in the present case the Library is merely restricting the "time, place and manner" of speech, to which the courts apply an intermediate standard, rather than strict scrutiny.

Referring to the Library Board and staff, he said: "They have not said you can't speak, and they have not said to their patrons you cannot listen."   They have only said "Not here."

Bass further argued that this case is not like the Communications Decency Act, because there the "entire universe" of speech on the Internet was restricted.  In contrast, this case only involves speech inside of the Loudoun County Public Libraries.   Hence, Bass argued, Judge Brinkema should not apply the CDA case, Reno v. ACLU, 117 S.Ct. 2329 (1997).

Rather, Bass urged that the applicable precedent is an earlier case, Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986).  In that case a town restricted where adult theatres and bookstores could be located.  Playtime Theatres contended their free speech rights were violated, but the Supreme Court upheld the ordinance as a time, place, and manner restriction.  Bass argued that the city of Renton was not attempting to restrict the content of speech, but rather was attempting to avoid the "secondary effects" of porn stores in residential neighborhoods.

Bass said that in the Loudoun Library case, "we are concerned with secondary effects," including "harassment."  Therefore, the court should not apply the "strict scrutiny" test.

Judge Brinkema told Ken Bass that the Library was restricting access to "protected speech."  Bass vehemently denied this.  He said that this case only deals with "unprotected speech."

Robert Corn-Revere argued second.  He disputed Ken Bass's "strict scrutiny" arguments.  He argued that this is a "content based" case, and a "prior restraint" case, and hence, "strict scrutiny" should apply.

He argued that the Renton case is inapplicable in this case because it was a content neutral restriction on speech whereas this is a content based restriction case.

Corn-Revere also criticized the X-STOP software.  He explained that it blocks sites that should not be blocked.

Moreover, he said, "even when they do discover bad blocks, the level of discretion they have is excessive, and we believe, unconstitutional."

Corn-Revere refrained from using the sort of derogatory language that PFAW has been using outside of the courtroom.  For example, Carol Shields, President of PFAW, referred to the Library Board in a press release earlier this month as "thought police," and its efforts as "ludicrous" and a "fiasco."

Judge Brinkema is a former librarian.

Ann Beeson of the ACLU then argued on behalf the website plaintiffs.  She argued that the X-STOP software blocks too many sites that should not be blocked, and it continually adds to the block list.  She said that the Library staff's attempts to unblock sites at patrons requests is insufficient.

She quipped about trying to unblock sites that should not be blocked: "This policy is like I Love Lucy in the candy factory."  However, "but here what we are talking about is constitutionally protected speech." 

She concluded that "there is no way to fix this policy."

She also pointed out that "our clients have no way to even know that they are blocked."  Short of going to the Library and using a computer with the blocking software, "there is no way to keep up with it on a day to day basis."

Melissa Wells-Petry argued briefly as an amicus curiae, or friend of the court.   She represents the Dulles chapter of the National Organization for Women.  She argued in support of the Library's Policy.

However, Judge Brinkema did not appear impressed. She asked her how she would react to her website being blocked.  "You don't think your Chapter would be upset about that?"   (The Dulles Chapter of NOW has no website.)

Ken Bass was allowed to argue again in rebuttal.  He argued that if a website is improperly blocked, there is not a constitutional problem, because the site can be unblocked.  He stressed that "delay in access is not a deprivation of access."

As for Beeson's arguments that website operators do not know if their sites have been blocked, he said there is no problem unless as Library patron is actually blocked.   He stated that "there is no deprivation in the absolute."   Moreover, "there is no speech without listeners."

According to Bass, once a library patron requests a site to be unblocked, it is reviewed, and if it was improperly blocked, the library staff unblocks it. Hence, "no protected speech has been blocked by Loudoun County" said Bass, "that any Loudoun patron wants to see."

He conceded that there are technological problems with X-STOP, but this does not mean that libraries have to "be publicly financed peep shows."

Judge Brinkema made no rulings from the bench.  She did not alter the currently scheduled trial date of October 14.  However, she stated that she would decide within a few days whether a trial or evidentiary hearing would proceed on October 14.