"To admit authorities into our libraries and let them tell us how to read, what to read, what value to place upon what we read, is to destroy the spirit of freedom which is the breath of those sanctuaries." Virginia Woolf

JUDGE BRINKEMA GRANTS MAINSTREAM'S MOTION FOR SUMMARY JUDGMENT

On September 25, Judge Brinkema heard oral arguments for and against a summary judgment, and on October 2 issued the following order that stated no trial will be needed in the case.

"Having reviewed the voluminous pleadings and exhibits submitted in this case with great care and agreeing with the parties, all of whom have submitted motions for summary judgment, that the current record is sufficient to allow the court to decide summary judgment, the Court has determined that an evidentiary hearing is not required. The Court will decide the motions currently pending on the papers and issue a memorandum opinion within the next few weeks."

Mainstream Loudoun is pleased with the decision to render summary judgment and remains confident we will prevail.

INTERNET POLICY LAWSUIT UPDATES

"Unlike Justice Potter Stewart who said he could not intelligibly define obscenity but that 'I know it when I see it,' the Board of Trustees of the Loudoun County Public Library claims it knows what is obscene without ever having to look at it." (from Mainstream's Motion for Summary Judgment)

The Motion for Summary Judgment summarizes Mainstream's arguments:
"The Loudoun County Internet policy imposes prior restraint on Internet information, reduces adult access to information to less than what is fit for children, imposes broad and vague restrictions on speech, vests library staff with unbridled discretion to enforce the policy, and fails to serve a compelling government interest by the least restrictive means."

Mainstream's attorneys have further developed our case with additional arguments in PLAINTIFF'S MEMORANDUM IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT:

1. The current Internet policy goes against the Library Board's standing policies.

The library's policy entitled "Freedom For Ideas -- Freedom From Censorship" states: "The selection and development of the Library collection is not to be diminished because minors might have access to materials with controversial content;" and "[T]he rights and responsibilities of parents or legal guardians will neither be abridged nor assumed by the library system."

The Library's "Policy on Collection Development" states that "[i]ndividual use of library materials is a private and personal matter. …no citizen may restrict the freedom of use and access for others." The policy adds that "[r]esponsibility for the reading, listening, and viewing of library materials by children rests with their parents or legal guardians and not with the library staff. Selection of library materials is not inhibited by the possibility that materials may come into the possession of children."

The Library's "Policy on Confidentiality" provides that "[c]onfidentiality of all patrons' library use will be maintained."

2. There is no record of findings that unfiltered access to the Internet posed a significant problem in public libraries.

The Library Board's expert witness, David Burt, received no responses from a request for accounts of sexual harassment sent to an estimated 10,000 librarians.

The library director's correspondence with 16 other Virginia and area public libraries that do not require the use of filtering software on the terminals reported no significant problems associated with Internet access (only one minor complaint which was quickly resolved).

Indeed, the principal problem reported by the Fairfax County Public Library director was that "Family Friendly Libraries, Enough Is Enough, and the Christian Coalition had basically set them up to create a problem" by staging a situation "implying that this kid [and his family] had come across [a pornographic website] when in fact the child and that family weren't even there."

3. The policy is designed to inhibit library patrons' Internet usage.

The purpose and effect of the Policy is to inhibit library patron's usage of the Internet access terminals by creating an atmosphere of surveillance. The defendant's expert has conceded that patrons likely would never visit sensitive but legal sites out of fear and embarrassment in a situation where library staff were looking over the patron's shoulder, and that patrons might feel intimidated.

The Internet Policy puts patrons on notice that their usage of the Internet will be monitored and that they could be arrested if they try to access the "wrong" websites. The Library Director has even been in contact with Loudoun County police authorities, alerting them that they may be called upon to enforce the Policy.

4. The unblocking policy reinforces the policy's chilling effect.

Patrons must fill out an unblocking request form providing their name, phone number, and reason why they want the site unblocked. No written guidelines are provided to library staff to determine whether or not a site is "pornographic," and so the decision of whether or not to request X-STOP to unblock a site is left to the staff's discretion.

Immediate unblocking is not possible. One patron was blocked from accessing MotherNet, a local non-profit dedicated to helping unwed mothers. She was not able to get the information that she needed for a job interview because the site could not be unblocked for several days. It is not unusual for the unblocking process to take two days.

5. Filters overblock and underblock.

When the library staff first reviewed blocked sites on their terminals, they found that 67% of the sites blocked should not have been. In addition, some unblocked sites have been re-blocked.

X-STOP claimed that as of April, 1998, the filtering software "glitches" had been eliminated. Checks on library terminals on July 25 and as late as September 2, 1998, found numerous (at least 15) constitutionally-protected sites blocked, including the Edinburgh Scotland home page, Let's Have an Affair Catering, Eyeland Opticians, several gay and lesbian news sites, soccer and economics, Indiana sports, and pictures of clothed Japanese women, to name a few. With no way of knowing what 300 to 500 sites are blocked each day, keeping track of wrongly blocked sites is akin to counting stars in a cloudy sky.

REPORT ON THE HEARING ON MAINSTREAM'S MOTION FOR SUMMARY JUDGMENT

On September 25, Judge Brinkema heard oral arguments for and against a summary judgment. Judge Brinkema opened the hearing by denying defendant's request that she reconsider her legal conclusions from the April decision.

The defendant's attorney, Ken Bass, argued that since the information blocked in Loudoun's libraries is still accessible elsewhere (e.g. libraries in neighboring counties or private computers), the restrictions are reasonable, referencing a case which dealt with limiting the location of adult stores. Robert Corn-Revere disagreed, pointing out that the decision in that case was not based on the content of the videos or books.

Other points were made by Mr. Bass which, even as lay people, we found surprisingly weak:
1) Since the genuine intent is not to suppress protected speech, blocking protected speech is acceptable.
2) "Harmful to juveniles" is not protected speech for adults [Corn-Revere disagreed, adding that it presumes speech is unprotected with no safeguards to insure such].
3) X-STOP is "the best of the worst of the lot."
4) We will turn libraries into police states, which is what the ALA wants.
5) There is no proof that any Loudoun citizen wants to see any of the blocked sites.
6) Sites are not blocked…it's only "delayed access."

The defendants requested an evidentiary presentation in order to demonstrate how the filters work. Corn-Revere opposed, stating the record is adequate. Only .02% of the blocked sites have been reviewed by library staff, since these sites are almost always discovered only by patrons or litigants.

Ann Beeson (ACLU-Intervenor), representing Internet publishers who have been blocked in Loudoun County, made the point that Internet publishers do not know if they are blocked and cannot find out. She also found a bias toward gay groups based on the larger number of gay sites that were blocked, which suggests viewpoint discrimination.

According to the testimony of the library director, 99% of patrons neither inadvertently nor advertently come across or look for "pornography." A robust enforcement of existing laws is what is needed.

Delegate Dick Black, author of the policy, and Dulles NOW have filed a "friend of the court brief," and the Dulles NOW attorney also presented oral arguments. She stated that we need to focus on the millions of sites that are available, not the ones that are blocked. Judge Brinkema, apparently not impressed by the attorney's suggestion of sacrificing just some protected speech, asked her how she would feel if she discovered that Dulles NOW was one of the sites that had been blocked. She was unable to provide a coherent answer.

[NOTE: National and Virginia NOW have designated Dulles NOW as a renegade chapter since their positions have become consistently at odds with each other. No information is available regarding the Dulles chapter's membership or meetings.]

AMICUS BRIEF

Besides Dick Black and Dulles NOW, other signers of the amicus brief include 13 local churches or ministers, the All Dulles Area Muslim Society, Delegate Robert Marshall (who tried last year to promote Internet censorship at the state level), Family Friendly Libraries, Virginia Eagle Forum, The Family Foundation, Citizens for the Protection of Children, and Concerned Women for America. The participation of these religious right political organizations demonstrates that the policy reflects their pro-censorship agenda.

Mainstream Loudoun opposes Loudoun County taxpayers being forced to subsidize the religious right's nation-wide efforts to promote Internet censorship.