On November 23, Judge Brinkema issued a summary judgment that declared unconstitutional the Internet use policy adopted by the Loudoun County Library Board. As the first case of its kind, it set a precedent for Internet access in public libraries across the United States.

Ruling the policy unconstitutional in every respect, Brinkema's 48 page opinion concluded that the Board's policy "offends the guarantee of free speech in the First Amendment."

INTERNET POLICY FAILS CONSTITUTIONALITY TESTS

In her decision, Brinkema points out how the board’s policy fails several tests used to determine constitutionality:

1) The Policy Is Not Necessary to Further Any Compelling Government Interest.
Brinkema concludes that “three isolated incidents nationally, one very minor isolated incident in Virginia, no evidence whatsoever of problems in Loudoun County, and not a single employee complaint from anywhere in the country” are not proof “that the Policy is necessary to prevent sexual harassment or access to obscenity or child pornography....Burt’s [the defendant’s expert witness] own statements indicate that such problems are practically nonexistent.”

2) The Policy Is Not Narrowly Tailored.
Brinkema finds that “less restrictive means are available to further defendant’s interests and,...there is no evidence that defendant has tested any of these means over time.”

3) The Policy Is Overinclusive.
Brinkema states that the policy “on its face,...limits the access of all patrons, adult and juvenile, to material deemed fit for juveniles....It has long been a matter of settled law that restricting what adults may read to a level appropriate for minors is a violation of the free speech guaranteed by the First Amendment and the Due Process Clause of the Fourteenth Amendment.”

4) The Policy Provides Inadequate Standards for Restricting Access.
Brinkema declares the policy “unconstitutional under the doctrine of prior restraint because it provides [in]sufficient standards to limit the discretion of the decisionmaker.” Because “the Policy lacks any provision for prior judicial determinations before material is censored....the defendant’s discretion to censor is essentially unbounded.”

Failing to provide guidelines to help librarians and reviewing authorities determine if their decisions are appropriate demonstrates “the defendant’s willingness to entrust all preliminary blocking decisions – and, by default, the overwhelming majority of final decisions – to a private vendor” who “does not base its blocking decisions on any legal definition of obscenity or even on the parameters of defendant’s policy.”

“A public library, Judge Brinkema ruled, cannot delegate such decisions about content-based restriction to a commercial third party, let alone one that makes its decisions without open review.” [Washington Post Editorial, 11/28/98]

5) The Policy Provides Inadequate Procedural Safeguards to Ensure Prompt Judicial Review.
The Policy has no provisions for administrative review, no time period for such a review, no provision for notifying a library patron when a site has been unblocked at the patron’s request, and no provision for judicial review of an administrative decision with which the patron disagrees.

The full decision is posted at People for the American Way.

FAMILY RESEARCH COUNCIL REACTS

Robert H. Knight, director of cultural studies for the Family Research Council, a religious right lobbying group, reacted. “She’s [Brinkema] declared a new constitutional right to tax-supported-pornography, even to children,” he declared with characteristic overstatement and inaccuracy. “It’s one of the most outrageous examples of judicial tyranny.” [Washington Times, 11/25/98]