The First Amendment and the Internet
Mainstream Loudoun, et al. v. Board of Trustees of the Loudoun County Library, United States District Court for the Eastern District of Virginia, Civil Action Number 97-2049-A.Summary
On November 23, 1998, the United States District Court for the Eastern District of Virginia permanently enjoined the policy of Loudoun County Library to block access by library patrons to certain Internet publications on the ground that the policy violated the First Amendment.
On November 23, 1998, the United States District Court for the Eastern District of Virginia granted summary judgment in favor of the plaintiffs and intervenors (the Safer Sex Page, Banned Books Online, the Books for Gay and Lesbian Teens/Youth page, the American Association of University Women, Renaissance Transgender Association, The Ethical Spectacle and two individuals) and against the Board of Trustees defendant, finding that the library’s use of X-Stop blocking software on its Internet connected computers, violated the First Amendment..
In their motion, the plaintiffs and intervenors claimed that the blocking policy violated their First Amendment rights because it impermissibly discriminates against protected speech on the basis of content and constitutes an unconstitutional prior restraint. The defendant, who also sought summary judgment, defended its blocking policy by claiming that the policy did not implicate the First Amendment and, if it did, the policy was reasonable. The defendant claimed further that this policy was the least restrictive means of achieving compelling government interests. The defendant also asserted that none of the plaintiffs had standing to bring the action and that the library had statutory immunity. The standing arguments were rejected for the most part and the court refused to revisit the immunity issue which it had previously decided against the defendant.
The court again rejected the defendant’s contention that the policy did not implicate the First Amendment because it was simply a “library acquisition decision” rather than a decision to remove library materials. Moreover, the court held that because the library was limited public forum, the appropriate standard to review the policy was under that of “strict scrutiny,” the most difficult level of review for a statute, regulation or policy. For the policy to pass constitutional muster then, the defendant carried the burden of demonstrating that its policy was “narrowly tailored” or the least restrictive means available of protecting a compelling state interest.
The defendant articulated two “compelling government interests” - minimizing access to illegal pornography and avoidance of creation of a sexually hostile environment. Since the plaintiffs did not argue that these reasons were not compelling state interests, the court assumed they were. Instead, the plaintiffs claimed that the evidence offered by the defendant failed to demonstrate that the policy was necessary to further these interests or that it was the least restrictive means available. The plaintiffs further contended that the policy imposed an unconstitutional prior restraint on speech.
To support the assertion that the policy was necessary to further the stated compelling interests, the defendant offered three incidents from around the country involving alleged problems with unfiltered Internet access in libraries. However, given the number of public libraries across the country and the fact that none of these three incidents involved a claim that unfiltered access created a hostile environment, one of the compelling interests intended to be protected by the policy, the court found the evidence insufficient as a matter of law.
Moreover, the court went on, even had the defendant marshaled sufficient evidence to support its argument, in order for the policy to be upheld, the defendant would also have to show that the policy was the least restrictive means of protecting these interests and was not overinclusive.
The court agreed with the plaintiffs that less restrictive means were available to protect the stated interests. The court specifically found that installing privacy screens, or charging library staff with casual monitoring of Internet use, or installing filtering software on only some Internet terminals and limiting minors to those terminals, or installing filtering software that could be turned off when an adult is using the terminal, were all less restrictive, although not necessarily constitutional, means of protecting these interests.
Citing Reno v. ACLU, the court also agreed that the policy was overinclusive because it suppressed access by adults to adult addressed speech. The First Amendment and Due Process Clause of the Fourteenth Amendment guarantee adults access to certain adult materials. As implemented, the policy operated to limit access of all patrons, adult and juvenile, to material only deemed fit for juveniles. Finally, the court found that even if the policy survived the strict scrutiny anlayis, it was an unconstitutional prior restraint on speech because provides insufficient standards to limit the discretion of the librarian or contractor assigned with determining whether a site should be blocked and because the policy did not include adequate procedural safeguards, including a lack of judicial review of blocking decisions.
Our analysis of the court's earlier ruling can be foundhere.