Decision in library filtering case: either a ‘landmark’ or a ‘landmine’

Wednesday, November 25, 1998

The federal court decision striking down a public library board's policy of mandating filtered Internet access for all its patrons is either a “landmark” or a “landmine,” depending on whom you ask.

In Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, Federal Judge Leonie Brinkema ruled that the library's policy “offends the guarantee of free speech in the First Amendment.”

Filtering opponents contend Brinkema's decision properly protects the First Amendment value of full access to information and ideas. However, filtering proponents counter that the decision could lead some libraries to pull the plug on Internet access.

“This is a landmark decision for public libraries and mainstream citizens who want to decide for themselves and their families what to read on the Internet in public libraries,” Larry Ottinger, senior staff attorney for the People for the American Way Foundation, said. The People for the American Way Foundation serves as co-counsel for Mainstream Loudoun, the civil liberty group challenging the policy.

Steven Herb, chairman of the American Library Association's Intellectual Freedom Committee, said: “This decision confirms the protections of the First Amendment for the public library. Filtering all computers at a public library is no longer an option.”

However, Ken Bass, lead attorney for the Loudoun County Library, says the decision is not a landmark but something else altogether.

“This is a landmine decision because, if it stands, it could disrupt, if not destroy, public access to the Internet through publicly supported terminals,” he said.

“The net result of the decision is that there is no Internet access at any Loudoun County public library,” Bass said.

David Burt, president of the pro-filtering group Filtering Facts and an expert witness for the Loudoun County library board in the case, agreed. “This decision will keep libraries from offering Internet access at all,” he said. “Look at what has happened in Loudoun County.”

James Tyre, a California attorney and founding member of The Censorware Project, a group which opposes filtering on public computers, says it is “highly doubtful” that this decision will result in other libraries pulling the plug on Internet access. “The policy in the Loudoun County case is one of the most restrictive Internet access policies in the country,” he said. “Most public libraries don't use filtering software, and many of the libraries that do, do so in much more limited circumstances.”

The library adopted its “Policy on Internet Sexual Harassment” in order to serve two interests: (1) to minimize access to illegal pornography and (2) to avoid the creation of sexually hostile environments in public libraries.

Brinkema assumed these two interests were “compelling,” but ruled that to survive judicial scrutiny, the defendants must show that the limitation on speech was necessary to further the compelling interests and was narrowly drawn.

Brinkema ruled that there was scant evidence of library patrons accessing illegal pornography and creating sexually hostile environments in public libraries. “The only evidence to which defendant can point in support of its argument that the Policy is necessary consists of a record of single complaint arising from Internet use in another Virginia library and reports of isolated incidents in three other libraries across the country,” wrote Brinkema.

According to the judge, this shows that the policy was not necessary to further the library's stated stated interests. “The judge ruled that this was an unconstitutional solution in search of a problem,” Ottinger said.

The judge also said that “Burt's own statements indicate that such problems are practically nonexistent.” Burt disagreed with the judge's reasoning: “This is not a practically nonexistent problem; it is a pervasive problem.”

Bass agrees the judge's reasoning was flawed. “The volumes of complaints in public libraries is a growing, not a shrinking, problem,” he said. “It was big mistake for the judge to rest her opinion on anecdotal evidence without full exploration of the issues in a trial.

“It just does not make good sense to require a public library to allow access to material that is not protected under the First Amendment,” Bass said. “The decision was an illogical, unprecedented application of the First Amendment. No court has ever held that the First Amendment requires a public body to facilitate a felony.”

However, what this reasoning ignores, says Tyre, is that “the remedy which Loudoun County sought to impose — mandated installation of grossly defective filtering software for all patrons on all terminals — is overkill to solve the alleged problems.”

Tyre points to his group's recent report, which shows that X-Stop, the filtering software product approved by the Loudoun library board, “still blocks an incredible amount of constitutionally protected material.”

Bass said that the library board will hold an emergency meeting on Dec. 1 to determine what course of action to take now.

“The board will take one of four approaches: keep the same policy and appeal, adopt a new policy and appeal, adopt a new policy and not appeal or shut Internet access down altogether,” Bass said.

Burt says that several members of the board who approved the policy have been replaced with new members, a fact which may influence the board not to appeal.

In the meantime, the library board filed a motion yesterday asking Brinkema to issue a stay of her ruling for 15 days. At a hearing yesterday afternoon, Brinkema refused to grant a stay over the objection of the plaintiffs' attorneys. Bass said that “the net effect of the latest ruling is that there will be no Internet access at all until a new policy is issued.”

Whatever course of action the board takes, virtually all interested observers agree the issue of filtering is still unresolved. “I expect this will remain a live issue for quite a while,” Bass said.

Herb said the debate will now continue over whether there should be some filtering in public libraries, particularly for minors, or none at all.

Opponents of filtering hope the decision will make government officials and legislators leery of adopting policies or laws that restrict material on the Internet. “We hope this decision will send a message to Congress and state and local legislators to keep the government out of the business of requiring filtering for the public library and its patrons,” Ottinger said.

“We hope the library board members will focus time and energy on improving the library and its facilities to meet the critical needs of patrons rather than engaging in an ideological battle,” Ottinger said.