Mainstream Loudoun and the future of internet filtering for America's public libraries.

• Author: Rosales, Geraldine P.
• Position: Mainstream Loudoun v. Board of Trustees of Loudoun County Library

1. INTRODUCTION

   The First Amendment guarantee of free speech is under heavy fire today. Everyone, from Congress to local librarians, is arguing over how best to protect young people from potentially harmful online information. Our public libraries face the difficult decision of whether or not to install filters to block Internet sites that the libraries, and/or the communities in which they are situated, deem inappropriate for young persons. Supporters of free speech oppose the use of filters because, sometimes accidentally and sometimes intentionally, filters block many sites containing constitutionally protected speech. Additionally, opponents of filters in public libraries lament the fact that filters take the traditionally parental role of monitoring what children see and hear and relinquish that control to librarians and law-makers.

   Since the Internet's creation there has been an explosive increase in the number and type of Internet sites.(1) Concomitantly, concern has grown about how best to shield young people from inappropriate information available on the Internet. On the federal level, Congress has demonstrated its concern by proposing rights-constricting legislation that would require schools and libraries receiving federal funding for Internet access to install filtering software.(2) Many states have already passed similar legislation. On the local level, some libraries have taken the initiative and installed filters. In some cases this has led to public outcry.

   This note will explore Mainstream Loudoun v. Board of Trustees of Loudoun County Library, a case of first impression in the Eastern District of Virginia, in which concerned citizens successfully challenged their library's decision to install Internet filters.(3) The main issue in Mainstream Loudoun was whether a public library violated the First Amendment rights of its patrons by enacting a policy that prevented patrons' access "to certain content-based categories of Internet publications" through the installation of blocking software on library computers.(4) This case, and others like it, may have far reaching effects on the ability of libraries, schools, state universities and government offices to install blocking software on their computers and thus limit and control what their patrons, students and employees can access on the Internet.

   Part II will provide background for Mainstream Loudoun, present the procedural history and analyze the court's holding. Part III will survey recent federal and state Internet filtering legislation and discuss how groups, including the American Library Association and the American Civil Liberties Union ("ACLU"), have spoken out against it. This legislation may dim the victory of Mainstream Loudoun by requiring public libraries to install Internet filters in exchange for federal funding. The libraries would be able to choose what type of software to install, but no filter is completely effective.

   Part IV will introduce the Clinton Administration's views on the regulation of Internet content. Part V will explain how filters work and how they often fail. Part VI will address the dilemma of the public librarians who must decide whether to install these inadequate filters or expose themselves to possible liability at the hands of angry parents. Librarians facing this difficult decision can look to recent U.S. Supreme Court rulings, discussed in Part VII, on related constitutional issues that may help predict how the Internet filtering issue will be resolved.

   There are other possible solutions, as seen in Part VIII -ones that may take a little more work than hastily-passed legislation or easily-installed filters, but that have greater hope for protecting minors from possibly harmful material while securing the rights of adults. These causes are worth the effort because:

   [T]he peculiar evil of silencing the expression of an opinion is, that it is robbing the human race ... those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose ... the clearer perception and livelier impression of truth, produced by its collision with error.(5) II. THE MAINSTREAM LOUDOUN CASE

   1. Background

      Loudoun County is situated, rather ironically, in northern Virginia, home to many computer and Internet companies, including America Online.(6) On October 20, 1997, the Loudoun County Library Board of Directors adopted an Internet filtering policy that has been called the "most restrictive" in the United States.(7) The Loudoun County Library "Policy on Internet Sexual Harassment" ("the Policy") requires that "[s]ite-blocking software ... be installed on all [library] computers" to "block child pornography and obscene material (hard core pornography)" and "material deemed Harmful to Juveniles ... (soft core pornography)."(8) The Board had the library edition of Log-On Data Corporation's X-Stop blocking software installed on all of its Internet-connected computers,(9) citing as a rationale the need to protect library users and employees from sexual harassment.(10)

      An organization of local residents called "Mainstream Loudoun" filed a complaint against the library board in the Eastern District of Virginia on December 22, 1997, under 42 U.S.C. [sections] 1983.(11) The group was soon joined in the suit by seven intervening website operators whose Web pages were blocked by the library's filtering software.(12) The plaintiffs sought a permanent injunction prohibiting the library from using such software on its public access computers.(13)

      The Mainstream Loudoun plaintiffs contended that the software blocked their access to protected speech.(14) They argued that the X-Stop software that the library had installed is typical of all Internet filters in that it is clumsy and ineffective, often blocking innocuous sites, such as the Quaker Home Page and the Zero Population Growth web site, while letting through ones with obscene content.(15)

      The complaint further alleged that filter blocking is not contentneutral, that the library's Policy lacked clear criteria for blocking decisions, and that the library's unblocking policy "unconstitutionally chills plaintiffs' receipt of constitutionally protected materials."(16) The complaint stated that "[defendants] are in effect `removing books from the shelves' of the Internet by blocking many Internet sites with valuable educational, political, literary, artistic, social, and religious speech that would otherwise be available to library patrons."(17) Plaintiffs therefore claimed a violation of their First Amendment right of free speech.(18)

   2. Defendants' Immunity Claims

      On February 2, 1998, the defendants filed a Motion to Dismiss and a Motion for Summary Judgment, claiming alternatively legislative immunity, immunity under the Communications Decency Act, and qualified immunity.(19) Defendants based their claim to legislative immunity on Bogan v. Scott-Harris in which the Supreme Court explicitly extended [sections] 1983 absolute immunity to local government officials for their legislative activities.(20) Plaintiffs argued that the library board members were not entitled to legislative immunity because they were appointed rather than elected and thus there is no direct electoral check on the board members' actions.(21)

      The presiding United States District Court Judge, Leonie Brinkema, found that the library board and its members were entitled to absolute immunity for their decision to adopt the Policy, under "a discretionary exercise of rulemaking authority."(22) However, under the Virginia Code, the library board is charged with the "management and control of [the] free public library system," and therefore the board's choice of the filtering software was an act of enforcement, not legislation or administration.(23) Based on Virginia case law, the judge held that the library board was not entitled to legislative immunity in its enforcement role.(24)

      Defendants also claimed immunity under section 509 of the Telecommunications Act of 1996, now codified at 47 U.S.C. [sections] 230, "Protection for private blocking and screening of offensive material."(25) Judge Brinkema ruled that the defendants' reliance on this was not supported by the section's legislative history or relevant case law.(26) The Judge pointed to a Fourth Circuit opinion stating that Congress enacted [sections] 230 to minimize state regulation of Internet speech, not to shield government regulation of Internet speech from judicial review.(27)

      Judge Brinkema denied the defendants' immunity claims in her April 7 Memorandum of Opinion and Order. She also made a ruling that would come to be one of the most significant results of the case. Judge Brinkema ruled that the constitutional standard of strict scrutiny would be used to evaluate the Board's decision to install filters on library computers.(28) On October 2, 1998, the judge announced that she would decide the case on summary judgment pleadings and evidence submitted by both sides, thus canceling the trial which had been scheduled to begin on October 14, 1988.(29)

   3. The First Amendment Question and the Pico Precedent

      Defendants conceded that the Board's Policy prohibited access to speech on the basis of its content.(30) They argued, however, that the First Amendment does not limit the decisions of a public library regarding the provision of public access to information on the Internet.(31) Thus, the question before the court was "whether a public library may, without violating the First Amendment, enforce content-based restrictions on access to Internet speech."(32)

      The court stated that there were no cases directly on point, but all parties agreed that the most analogous authority was Board of Education v. Pico, 457 U.S. 853 (1982).(33) In Pico, the Supreme Court reviewed the case of a local board of education that removed books from a high school library...