LIBRARY INTERNET LAWSUIT: JUDGE BRINKEMA'S DECISION

On April 7, 1998, Judge Leonie M. Brinkema of the US District Court for the Eastern District of Virginia handed down a 36-page decision on the suit filed by MAINSTREAM LOUDOUN and eleven other plaintiffs against the Loudoun County Library Board of Trustees. (Mainstream Loudoun had filed suit to strike down as unconstitutional the Library Board's overly restrictive Internet use policy.)

The key issues of this case were decided in Mainstream's favor. Brinkema's strongly worded opinion upholds the First Amendment rights of library users by affirming that First Amendment freedoms fully apply to library Internet access and by holding the county to the strictest constitutional test.

Judge Brinkema's ruling (quoting Reno v. ACLU) states: "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."

Because no other case directly addresses this issue, this decision sets a legal standard for determining Internet use in our public libraries.

In her decision, Judge Brinkema states that "the central question before this Court is whether a public library may, without violating the First Amendment, enforce content-based restrictions on access to Internet speech."

Regarding the Nature of the Internet

The defendants "liken the Internet to a vast Interlibrary Loan system, and contend that restricting Internet access to selected materials is merely a decision not to acquire such materials rather than a decision to remove them from a library's collection."

On the other hand, the "plaintiffs analogize the Internet to a set of encyclopedias, and the Library Board's enactment of the Policy to a decision to 'black out' selected articles considered inappropriate for adult and juvenile patrons."

Judge Brinkema concludes that the "defendants have misconstrued the nature of the Internet." The Internet resembles more closely plaintiffs' analogy and the board's action "is more appropriately characterized as a removal decision."

She later points out that "…all, or nearly all, Internet publications are jointly available for a single price. Indeed, it costs a library more to restrict the content of its collection by means of blocking software than it does for the library to offer unrestricted access to all Internet publications.... Accordingly, considerations of cost or physical resources cannot justify a public library's decision to restrict access to Internet materials."

Regarding the Scope of Discretion Available to the Library Board
to Remove Materials on the Basis of their Content

Brinkema finds that public libraries are designed for freewheeling inquiry, and that the Library Board does not have the same scope of discretion in removing materials as does a public school board. In fact, Justices Burger and Rehnquist (School Board v. Pico) "justified giving public schools broad discretion to remove books in part by noting that such materials remained available in public libraries."

Brinkema concludes: "…the First Amendment applies to, and limits, the discretion of a public library to place content-based restriction on access to constitutionally protected materials within its collection." She continues, quoting from Pico, that a public library "may not be run in such a manner as to 'prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.'"

Regarding First Amendment Rights

Brinkema states, "Adults are deemed to have acquired the maturity needed to participate fully in a democratic society, and their right to speak and receive speech is entitled to full First Amendment protection."

Brinkema continues, "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." Therefore, "the Library Board may not thereafter selectively restrict certain categories of Internet speech because it disfavors their content."

Addressing how "narrowly tailored" the Policy is, Brinkema notes the following: "plaintiffs allege that the X-Stop filtering software chosen by defendants restricts many publications which are not obscene or pornographic;" and "…X-Stop fails to block access to pornographic materials arguably covered by the Policy;" and "the decision as to which materials to block is made by a California corporation based on secret criteria not disclosed even to defendants, criteria which may or may not bear any relation to legal definitions of obscenity or child pornography."

Referring to the fact the Policy also prohibits access to materials which are "deemed harmful to Juveniles," Brinkema quotes from ACLU v. Reno and concludes that "defendants may not, in the interest of protecting children, limit the speech available to adults to what is fit for 'juveniles.'"

Regarding the Unblocking Policy

Finally, because the unblocking policy forces adult patrons to petition the Government for access to otherwise protected speech and because it grants library staff standardless discretion to refuse access to protected speech, Brinkema describes it as having a "chilling" effect on First Amendment rights.

The county must file its answer by April 20.

MAINSTREAM LOUDOUN believes Judge Brinkema's strongly worded decision sets a clear standard for Internet access in public libraries which will protect our First Amendment right to access information. We are most grateful for the fine work done by our attorneys: Robert Corn-Revere of Hogan & Hartson and Larry Ottinger of People for the American Way Foundation.