Comm 'n' Law


The Internet: Library or Encyclopedia?

by Edmund B. Burke


You can visit the Loudoun County, Virginia public library Web site at http://www.lcpl.lib.va.us and take a tour of the library. However, for reasons that will be apparent, you will not find a link to the recent decision of the Federal District Court in Virginia on the case of Mainstream Loudoun v. Board of Trustees of the Loudoun County Library.

The trustees of the Loudoun County public library concluded that "site-blocking software" should be installed on all library computers to block library patrons' access to materials that were deemed harmful to juveniles. The Board chose a commercial software product called "X Stop" to try to limit access to Web sites which were "unsuitable for children."

Several library patrons brought a lawsuit claiming a violation of their First Amendment rights. They claimed that the library's policy infringed their civil rights by impermissibly blocking their access to constitutionally protected speech on the Web. They claimed that "X Stop" unlawfully inhibited their access to sites such as the Quaker Home Page, the Zero Population Growth Web site, and the site for the American Association of University Women.

The library patrons also claimed that the blocking decisions implemented by the software were not based on clear criteria and that the library's established procedures for "unblocking" (requiring a patron to petition the library for a release of the block) further abridged their rights to receipt of constitutionally protected speech. As a first line of defense, the library claimed an immunity from suit under � 230(c)(2) of the Communications Decency Act. That section specifically provides that:

No provider . . . of an interactive computer service shall be held liable on account of . . . any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

However, the Court concluded that the purpose of � 230(c)(2) was to relieve Internet service providers from the risk of tort liabilities in connection with the ISP's facilitating the communications of others. In the Court's view, Congress was simply trying to protect ISPs and thereby to avoid another form of intrusive government regulation of speech. Judge Brinkema followed the recent decision of the Federal Circuit Court of Appeals in Zeran v. America Online Inc., in concluding that "� 230 was enacted, in part, to maintain the robust nature of Internet communication, and accordingly to keep government interference in the medium to a minimum." The Court concluded that the section was enacted to minimize state regulation of Internet speech, not to insulate government regulators from judicial review.

On the substance of the claim, the court noted that the plaintiffs had sufficiently raised the specter of an infringement of the First Amendment and that they accordingly had sufficient basis to avoid an early dismissal of their lawsuit. For instance, the library patrons claimed that they had attempted to access certain Internet publications but had discovered that the sites had been blocked. In its defense, the library pointed out that the plaintiffs had not asked for an "unblocking" and also pointed out that such a request would likely have been granted. However, the court found that such an "unblocking" procedure might itself be unlawful, and that plaintiffs had alleged a sufficient claim of First Amendment abridgment.

At the hearing, the library conceded that its policy did in fact prohibit access to speech based on its content. The library argued 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." The library also argued (somewhat remarkably) at the hearing that "a public library could constitutionally prohibit access to speech simply because it was authored by African Americans, or because it espoused a particular political viewpoint, for example pro-Republican." Clearly, Judge Brinkema was appalled by the implications of such a position, and the library probably injured its legitimate arguments by taking an extreme, and even outrageous, position on a largely hypothetical issue for rhetorical purposes.

In the Court's view, the library considered the Internet to be a "vast Interlibrary Loan System," and claimed that the decision to restrict Internet access to selected materials was similar to a decision not to acquire such materials, rather than a decision to remove them from the library's collection.

The plaintiffs argued instead that the Internet is a "single integrated system." The information on the Internet was, according to the library patrons, "a single body of knowledge." The plaintiffs therefore likened the Internet to a set of encyclopedias, and considered the library's policy to be equivalent to a decision to "black out" selected articles that the library considered "inappropriate" for certain classes of library patrons.

The Court concluded that the plaintiffs had the better end of the argument. It observed that the plaintiffs' characterization of the Internet was more accurate and the library's action was "more appropriately characterized as a removal decision." In the Court's view, interpreting applicable Supreme Court precedent, the First Amendment must apply to, and limit, the discretion of a public library to place content-based restrictions on access to constitutionally protected materials within its collection. The judge concluded that a "public library, like other enterprises operated by the State, may not be run in such a manner as to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."

While the library argued that its intent was to protect children, the Court noted that the plaintiffs in this case were adults, and not children.

As a result of its analysis, the Court concluded that the so-called "strict scrutiny" standard of First Amendment review would be applied to the library's censorship decision. Under strict scrutiny, the State must in effect show that the interest it seeks to protect is critical and that no less restrictive means of achieving the protection are feasible. This is a nearly impossible standard for any state agency to meet, as it is almost always possible to come up with a more flexible, and hence more speech-tolerant, standard. The Court bolstered its decision against the policy by observing that the "unblocking" policy instituted by the library effectively forces adult patrons to petition the government for access to otherwise protected speech. The Court suspected that this was simply another unacceptable form of censorship, and denied the library's motion to dismiss the lawsuit.

The federal courts will continue to be engaged in delicate questions of balancing legitimate government interests (such as protecting children from child pornography) with the right of adult citizens to access information, even information considered "inappropriate" by government officials. While this tension is only beginning to be played out on the communication medium of the Internet, we should expect to see more cases raising these issues. It seems likely that the Supreme Court will consider more of these Internet-related speech issues within the next few years.

Edmund B. (Peter) Burke is a partner in the Technology Practice Group of Powell, Goldstein, Frazer & Murphy LLP, a law firm with offices in Atlanta and Washington, D.C. This column is not legal advice. Legal issues are complex and require specific attention to particular facts. If you have a legal question, you should consult an attorney. [email protected]

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