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Mainstream Loudoun, et al. v. Board of Trustees of the Loudoun County Library, et al.

24 F. Supp. 2d 552 (E.D. Va., November 23, 1998)

The Board of Trustees of the Loudoun County Public Library System ("Board") enacted a policy ("Policy") designated to prevent library patrons from accessing Internet sites that contain child pornography, obscene material or material deemed harmful to juveniles under Virginia law. To effectuate this policy, the Board had "X-Stop", a blocking software, installed on all library computers offering Internet access. "X-Stop" prevented library patrons from accessing various sites on the Internet. Concededly, some of the sites blocked by X-Stop do not contain any materials prohibited by the Board's policy.

A library patron could request access to a blocked site by providing library staff with his name, telephone number and a detailed reason for seeking access to the blocked site. The Library staff then had unfettered discretion to grant or deny the request. The Policy neither set a time limit in which this decision was to be made, nor mandated that the patron be informed of the Library's decision.

On the parties' cross-motions for summary judgment, the court determined that this Policy impermissibly violated plaintiffs' rights under the First Amendment, and was accordingly unconstitutional. The court began its analysis by reaffirming its April 7, 1998 decision that the Library's actions were not rendered immune from First Amendment scrutiny either by Section 230 of the Communications Decency Act, or by virtue of the fact that the actions constituted a library acquisition decision (not subject to First Amendment review) as opposed to a library removal decision (subject to First Amendment review).

The Court next determined that the Policy's restrictions on speech were subject to "strict scrutiny." Content-based limitations on speech in a limited public forum are subject to strict scrutiny by the courts and will be upheld only when the limitations are both necessary to further a compelling state interest and narrowly drawn to achieve that end. Defendants argued that a Library is not a limited public forum, but rather a non-public forum in which the government has greater freedom to regulate speech. The court disagreed, and found that the Library system was a public forum because the public at large had been invited to use the Library system to engage in expressive activity, such as communications over the Internet.

The Policy failed to pass constitutional muster under a strict scrutiny analysis. While the court determined that the Policy was enacted to further the compelling state interests of preventing minors from accessing illegal pornography and avoiding the creation of a sexually hostile environment, the Policy was neither necessary, nor sufficiently narrowly tailored, to achieve those goals. The evidence before the court, which consisted of but a handful of incidents, was insufficient to establish either that minors would utilize Library computers to access pornographic materials, or that the availability of prohibited materials would create a sexually hostile work environment. Moreover, there were more narrowly tailored means available to defendants to achieve their goals that they had failed to try, such as the use of privacy screens, casual supervision of computer use by library personnel, use of blocking software only on those Library computers designated for use by minors, or use of blocking software that could be turned off by adults. The Policy was also flawed because it restricted adults access only to material suitable for minors.

The court further found that the Policy constituted an impermissible prior restraint on speech. The Policy afforded Library personnel unbridled discretion to regulate speech without any prior judicial review, or without sufficient procedural safeguards. The court found the Policies' lack of adequate standards evidenced by the defendants' decision to employ "X-Stop" as the blocking software even though its developers would not reveal the system it utilized to block sites. The lack of procedural safeguards was evidenced by the Policy's failure to provide for appropriate review.

The court accordingly declared the Policy unconstitutional and enjoined its enforcement.

Of interest was the court's determination that John Ockerbloom lacked standing to challenge the Policy. Mr. Ockerbloom operated a website that contained a link to a site blocked by X-Stop. He argued that his First Amendment rights were thereby implicated sufficiently to allow him to bring suit challenging the Policy. While recognizing that individuals have standing to challenge restrictions prohibiting the speech of others if they have sufficient interest therein, the court held that such interest was not created solely by a hyperlink to a website containing challenged speech. A contrary decision would allow almost anyone to challenge on First Amendment grounds restrictions on Internet speech simply by creating a hyperlink to the site containing the speech at issue.

The full text of the court's decision can be found on a website maintained by the Tech Law Journal.

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