Judge Sets Highest Legal Hurdle For Using Blocking Software in Libraries

April 7, 1998 12:00 am

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ALEXANDRIA, VA — In the first major ruling on the use of Internet blocking software in libraries, a federal district judge today forcefully rejected a government motion to dismiss a lawsuit challenging the use of such software in public libraries in Loudoun County, Virginia.

The American Civil Liberties Union and the ACLU of Virginia, which represent a diverse group of eight Internet speakers seeking to reach library patrons, hailed the ruling as one of the strongest ever defenses of online free speech.

“We are thrilled that the judge in this case, a former librarian, recognized the Internet as the ultimate library resource,” said Ann Beeson, an ACLU staff attorney who appeared before the court.

“Every member of every library board considering an Internet-blocking policy ought to read the judge’s ruling,” said Kent Willis, Executive Director of the ACLU of Virginia. “It will remind them of why we have libraries and why an unfettered Internet serves the fundamental purpose of libraries better than any invention since the printing press.”

In a 36-page decision issued earlier today, Judge Leonie M. Brinkema of the U.S. District Court for the Eastern District of Virginia said that the government had “misconstrued the nature of the Internet” and held that “the Library Board may not adopt and enforce content-based restrictions on access to protected Internet speech” unless it meets the highest level of constitutional scrutiny.

Calling public libraries places of “freewheeling and independent inquiry,” Judge Brinkema quoted extensively from Reno v. ACLU, the landmark Supreme Court decision on Internet free speech, noting that the Court “analogized the Internet to a ‘vast library including millions of readily available and indexed publications,’ the content of which ‘is as diverse as human thought.'”

The court today also rejected the notion that the use of blocking software can be considered analogous to a librarian selecting certain materials, noting that Internet publications “exist only in ‘cyberspace,'” and do not “take up shelf space or require physical maintenance of any kind.”

Nor do such publications cost money, the judge said, noting that in fact, “it costs a library more to restrict the content of its collection by means of blocking software than it does for the library to offer unrestricted access to all Internet publications.”

Beeson said that although the case will still go forward, the unequivocal language of the ruling gave the government a very high burden to meet in its defense of the blocking policy.

“Blocking software is nothing more than CDA in a box,” Beeson said. “With today’s ruling, the court correctly applied the same level of First Amendment scrutiny that the Supreme Court used in rejecting the CDA.”

Beeson also said that the ruling should serve as a strong deterrent to recent efforts in Congress to mandate the use of blocking software in public schools and libraries.

In a unanimous voice vote last month, the Senate Commerce Committee passed the Internet School Filtering Act, a bill that requires all public libraries and schools that receive federal funds for Internet access to use blocking software. Urging against the policy, the ACLU said in a letter to the Committee that “the government may not condition federal funding on unconstitutional requirements,” emphasizing that “parents and teachers, not the government, should provide minors with guidance about accessing the Internet.”

In the Loudoun case, the national ACLU and the ACLU of Virginia intervened in the lawsuit on behalf of a diverse group of speakers outside of the county — and even outside the United States — who want to reach their intended worldwide audience, including library patrons in Loudoun County.

The ACLU’s plaintiffs are:

In its complaint, the ACLU said that the library’s Internet policy purports to block access to materials that are “pornographic” or “harmful to juveniles.” But the ACLU’s complaint charges that by using blocking software to implement the policy, the library board is in fact “removing books from the shelves” of the Internet with value to both adults and minors in violation of the Constitution.

In objecting to the block on their clients’ speech, the ACLU’s complaint noted that websites offering opposing views are not blocked. “For example, Defendants do not block sites opposing homosexuality and transgender behavior, opposing employment by women outside the home, favoring Internet censorship, and promoting abstinence rather than safer sex practices.”

Representing the ACLU’s clients are national ACLU lawyers Ann Beeson, Chris Hansen and Marjorie Heins, and Mary Bauer, Legal Director of the ACLU of Virginia.

Complete information on the intervention, including the ACLU’s complaint, links to plaintiffs’ web pages, and related cyber-law cases, can be found on the ACLU Privacy & Technology home page at /Privacy/PrivacyMain.cfm

Highlights of Judge Brinkema’s ruling concerning filtering and the 1st Amendment are available at: /node/35301
Or read the entire decision at: http://www.techlawjournal.com/courts/loudon/80407mem.htm

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