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

2 F. Supp. 2d 783 (E.D. Va. April 7, 1998)

The Board of Trustees of the Loudoun County Public Library System ("Board") enacted a policy which mandated the installation of blocking software on library computers. This software prevented library patrons from accessing Internet sites who's content was determined by the Board to be unacceptable. The prohibited sites purportedly contained child pornography, obscene material and material deemed harmful to juveniles under Virginia law. "X-Stop" was the blocking software chosen by the Board to effectuate its policy.

Complaining that this policy impermissibly violated their rights under the First Amendment, a number of library patrons brought suit against the Board and several of its individual members under 42 U.S.C. §1983. Defendants moved to dismiss the complaint for its alleged failure to state a claim. Defendants also sought a grant of summary judgment validating their actions.

The court determined that plaintiffs had, in fact, stated a valid claim and denied defendants' motion to dismiss and for summary judgment. While letting stand the claims against the Board, the court dismissed those brought against the individual Board members and the Director of Library Services on the ground that these parties were not necessary to an award of the complete relief sought by the plaintiffs.

The court rejected the defendant' argument that their decision to adopt content-based restrictions on library Internet access was immune from suit under Section 230(c)(2) of the Communications Decency Act ("CDA"). Section 230(c)(2) provides that:

no provider or user of an interactive computer service shall be held liable on account of ... any action voluntarily take in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

The act defines "interactive computer service" to include "a service or system that provides access to the Internet [that is] offered by libraries or educational institutions." 47 U.S.C. §230(e)(2). Nonetheless, the court held that the CDA did not prevent court review of the constitutionality of the Board's actions. Said the court:

[A]s its name implies, §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.

The court also held that plaintiffs had stated a valid claim under 42 U.S.C. §1983. In reaching this conclusion, the court determined that public libraries do not have unfettered discretion to place content-based restrictions on Internet access. The court stated:

[T]he First Amendment applies to, and limits, the discretion of a public library to place content-based restrictions on access to constitutionality protected materials within its collection. Consistent with the mandate of the First Amendment, a public library, "like other enterprises operated by the State, may not be run in such a manner as to 'prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.'"

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In sum, there is "no basis for qualifying the level of First Amendment scrutiny" that must be applied to a public library's decision to restrict access to Internet publications. Reno, 117 S. Ct. at 2344. We are therefore left with the First Amendment's central tenet that content-based restrictions on speech must be justified by a compelling governmental interest and must be narrowly tailored to achieve that end.

Public libraries are not obligated to provide Internet access to their patrons. "Having chosen to provide access, however, the Library Board may not thereafter selectively restrict certain categories of Internet speech because it disfavors their content."

The Court further held that the ability of a library patron, under the Board's policy, to apply for, and potentially obtain access to otherwise prohibited sites would not save an otherwise unconstitutional policy. Under this policy, a library patron could request access to a prohibited site by providing his name, telephone number and a detailed reason for seeking access. Library staff then had unfettered discretion to grant or deny the request. The chilling effect of this procedure, determined the court, barred it from saving a policy that otherwise ran afoul of the First Amendment.

Left for another day was the propriety of the actual restriction imposed by the Board on its patrons' Internet access. While acknowledging that regulation of obscenity and child pornography was permissible under the First Amendment, the court did not determine whether the Board's use of "X Stop" blocking software to effectuate its policy complied with the strictures of the First Amendment.

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

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