Challenge of library’s Internet policy survives motion to dismiss

Wednesday, April 8, 1998

A federal judge in Virginia on Tuesday refused to dismiss the first lawsuit filed against a library board for a mandatory Internet filtering policy.

In Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, federal district court Judge Leonie Brinkema ruled that the Loudoun County Library Board may not “selectively restrict certain categories of Internet speech because it disfavors their content.”

The controversy, which all parties agree is the first test of mandatory blocking software in libraries, arose in October 1997 when the Loudoun County Public Library Board adopted a “Policy on Internet Sexual Harassment.” It required all library computer terminals be equipped with blocking software.

In December, Mainstream Loudoun, a self-described “nonprofit grassroots membership organization dedicated to ensuring a free and open society,” and several individuals challenged the law on First Amendment grounds.

In their complaint, the plaintiffs asserted that the library's Internet policy “is a content-based restriction upon speech subject to strict scrutiny under the First Amendment.” The library board countered that “the First Amendment does not in any way limit the decisions of a public library on whether to provide access to information on the Internet.”

Brinkema agreed with Mainstream Loudoun that the First Amendment was implicated by the library's policy. The judge ruled that “the Library Board may not adopt and enforce content-based restrictions on access to protected Internet speech absent a compelling state interest and means narrowly drawn to achieve that end.”

The judge concluded: “In this case, the Library Board need not offer Internet access, but, having chosen to provide it, must operate the service within the confines of the First Amendment.”

Brinkema reserved judgment as to whether the library board met the high standard of First Amendment review.

Larry Ottinger, senior staff attorney for the People for the American Way and co-counsel in the case for Mainstream Loudoun, told free!: “We are very, very pleased with this opinion. This important decision affirms the vital role of public libraries as centers of public learning to which First Amendment freedoms fully apply.”

Ottinger said: “The writing is on the wall for this restrictive Internet policy in Loudoun County, which falls far short of meeting traditional First Amendment standards.”

Robert Corn-Revere, lead attorney for the Mainstream Loudoun, agreed. He said: “I am elated with the judge's decision. Even though this is just round one in the lawsuit, the decision is important because it establishes the appropriate First Amendment standard of review: strict scrutiny.

“The judge correctly saw the mandatory filtering policy as a book removal policy rather than a book acquisition policy,” he said.

However, the attorney for the library board, Ken C. Bass, thinks the decision was incorrect. He said: “The judge made a number of rulings that are reviewable. Obviously, this is a case of first impression with difficult issues. …

“The case presents a very important issue that transcends the Internet: do the courts have a regulatory role with respect to the library content? Libraries always have to make content-based decisions with respect to the acquisition of books.”

The judge ordered the county to file an answer to the complaint within 11 days of her ruling.