ACLU Complaint in Mainstream Loudoun v. Board of Trustees

February 5, 1998

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

MAINSTREAM LOUDOUN, et al.,
Plaintiffs,

and

THE SAFER SEX PAGE; BANNED BOOKS ON-LINE, owned and operated by JOHN OCKERBLOOM; AMERICAN ASSOCIATION OF UNIVERSITY WOMEN MARYLAND; ROB MORSE; BOOKS FOR GAY AND LESBIAN TEENS/YOUTH PAGE, owned and operated by JEREMY MEYERS; SERGIO ARAU; RENAISSANCE TRANSGENDER ASSOCIATION, and THE ETHICAL SPECTACLE,
Plaintiffs-Intervenors,

v.

BOARD OF TRUSTEES OF THE LOUDOUN COUNTY LIBRARY, and its members in their official and personal capacities, JOHN J. NICHOLAS, JR., Chairman; SPENCER D. AULT, Vice Chairman; RICHARD H. BLACK; CHRIS HOWLETT; MARY ELLEN VANNEDERYNEN; and in his official capacity, DOUGLAS HENDERSON, Director of Library Services,
Defendants.
Case No. 97-2049-A

PLAINTIFFS-INTERVENORS
PROPOSED COMPLAINT
FOR DECLARATORY AND
INJUNCTIVE RELIEF

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Plaintiffs-Intervenors, through their attorneys, allege upon information and belief:

Preliminary Statement

1. Plaintiffs-Intervenors ("Intervenors"), who provide valuable information for free on the Internet, seek injunctive and declaratory relief against defendants for their enactment and implementation of an Internet access policy that prevents Intervenors from communicating their constitutionally protected speech to patrons in the Loudoun County Library. 

2. The Loudoun County Library is a public library in Loudoun County, Virginia that provides a wide range of books and other information resources to the public for free. The Loudoun County Library now provides access to the vast and valuable information resources of the Internet, which is fast becoming the library of the future as more of the world's information is put online. This case presents important constitutional questions concerning whether the government can prevent Internet speakers from communicating constitutionally protected information on the Internet to persons whose only access to online resources may be their local public library. 

3. Intervenors include individuals and organizations who communicate information free of charge on the Internet's World Wide Web ("Web"). Intervenors all provide valuable, constitutionally protected speech on the Internet, including safer sex information, the full text of books that have been subject to censorship attempts throughout history, resources promoting equal educational and career opportunities for women, a list of books of interest to gay and lesbian youth, an online magazine about politics and government, a daily newspaper column, and visual art work. Intervenors want to reach all interested Internet users world-wide, regardless of age, including patrons in the Loudoun County Library. 

4. On October 20, 1997, defendants, through the Board of Supervisors of the Loudoun County Library ("the Board"), passed by a vote of 5-4 a policy entitled "Policy on Internet Sexual Harassment" ("the Policy"). The Policy requires that "site-blocking software . . . be installed on all computers" for the purpose of limiting access to materials that are "pornographic" or "harmful to juveniles." The Policy's mandate to block all access to such materials, including access by adults, on its face suppresses speech that is unquestionably constitutionally protected for adults and for minors. By using blocking software to implement the Policy, 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. 

5. After passing the Policy, defendants purchased X-Stop, a blocking software produced by Log-On Data Corporation, and installed X-Stop on all of the Internet access terminals at the library. X-Stop is created by an outside computer software vendor that has developed a list of sites that it blocks on the Internet. Thus, although by using X-Stop defendants are blocking Internet speech that would otherwise be available to library patrons, defendants do not select the sites that X-Stop blocks. 

6. Blocking software cannot be "fixed" to block only speech that is unprotected by the Constitution. There is simply no way for a computer software program to make distinctions between protected and unprotected speech. Defendants' mandate that blocking software be used whenever a patron accesses the Internet, no matter what the software, will suppress ideas and viewpoints that are constitutionally protected from reaching willing patrons. 

7. On December 22, 1997, plaintiffs Mainstream Loudoun et al. filed this case. Plaintiffs, who include parents, citizens, and other public library users in Loudoun County, seek declaratory and injunctive relief against the Policy enacted by defendants, which severely limits plaintiffs' access to public information that would otherwise be available through the Internet in Loudoun County public libraries. 

8. Intervenors are Internet speakers who seek declaratory and injunctive relief against the Policy enacted by defendants which currently blocks or recently blocked them from communicating information on their Web sites to patrons in the library through the use of the blocking software X-Stop, in violation of the First, Fifth and Fourteenth Amendments of the United States Constitution. 

9. Defendants also block a wide variety of other Web sites that contain valuable and constitutionally protected speech, such as the entire Web site of Glide Memorial United Methodist Church, with over 2000 members located in San Francisco, California, and the entire Web site of The San Francisco Chronicle. 

10. Although defendants block intervenors' speech promoting safer sex practices, supporting gay and lesbian youth and transgendered persons, promoting career opportunities for women, opposing censorship of the Internet, and providing access to previously banned books, defendants do not block a variety of sites that express viewpoints contrary to the viewpoints expressed by Intervenors. For example, the Board does 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.

Jurisdiction and Venue

11. This case arises under the Constitution and laws of the United States and presents a federal question within this Court's jurisdiction under Article III of the Constitution and 28 U.S.C. ¤ 1331 and 28 U.S.C. ¤ 1343(3). This action is brought pursuant to 42 U.S.C. ¤ 1983.

12. The Court has the authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. ¤ 2201 et seq.

13. The Court has the authority to award costs and attorneys' fees under 42 U.S.C. ¤ 1988.

14. Venue is proper in this district under 28 U.S.C. ¤ 1391(b).

The Parties

15. Plaintiffs, who include parents, citizens, and other public library users in Loudoun County, Virginia, are described more fully in paragraphs 12-25 of Plaintiffs' Complaint for Declaratory and Injunctive Relief, filed December 22, 1997.

16. Intervenors are briefly described below. The impact of the Loudoun County Library Policy on the Intervenors' online communications is described more fully in paragraphs 92-160.

17. Intervenor THE SAFER SEX PAGE, owned and operated by JOHN TROYER, is a free World Wide Web site on the Internet that contains information and educational materials about safer sex, including articles about how to protect against HIV/AIDS. Mr. Troyer is a resident of Oakland, California.

18. Intervenor BANNED BOOKS ON-LINE, owned and operated by JOHN OCKERBLOOM, is a site on the World Wide Web which provides the full text of many books that have been the objects of censorship or censorship attempts throughout history. For example, Banned Books On-Line provides a full text copy of James Joyce's Ulysses, Voltaire's Candide, John Cleland's Fanny Hill, and Chaucer's Canterbury Tales. Mr. Ockerbloom is a doctoral student in computer science at Carnegie Mellon University, and resides in Pittsburgh, Pennsylvania.

19. Intervenor AMERICAN ASSOCIATION OF UNIVERSITY WOMEN MARYLAND (AAUW Maryland) is an unincorporated association founded in 1942 with twenty-five branches and over 1200 individual members. AAUW Maryland promotes equity, education, self-development over the life span, and positive societal change, for all women and girls. AAUW Maryland is an organizational unit of the national American Association of University Women, which also works to remove barriers and develop opportunities to enable women and girls to reach their full potential. AAUW Maryland has a free site on the World Wide Web which publicizes its activities, solicits new members, provides information about the national AAUW, and provides links to other Web sites with information about womenâs issues. AAUW Maryland sues on its own behalf and on behalf of its members.

20. Intervenor ROB MORSE is a lead columnist for The San Francisco Examiner, a mainstream newspaper with a circulation of 125,000 daily and 650,000 Sunday in the San Francisco metropolitan area. More than four hundred columns by Mr. Morse on subjects from urban violence to human cloning are available for free on a Web site for The San Francisco Examiner called The San Francisco Gate. Mr. Morse resides in Mill Valley, California.

21. Intervenor BOOKS FOR GAY AND LESBIAN TEENS/YOUTH PAGE, owned and operated by JEREMY MEYERS, is a free site on the World Wide Web which lists books that may be of interest to gay and lesbian youth. Mr. Meyers is an 18-year-old high school student who resides in New York City, New York.

22. Intervenor SERGIO ARAU is a Mexican painter, composer, and musician who lives in Los Angeles, California, and who has been called one of Mexico's most diversely talented artists. Several of his paintings are available for free viewing on the World Wide Web.

23. Intervenor RENAISSANCE TRANSGENDER ASSOCIATION ("Renaissance") is a non-profit corporation which provides support to transgendered individuals and those close to them, and comprehensive public education about transgender behavior. Renaissance has approximately 350 members, four chapters, and eleven affiliates in ten states. Renaissance has a free site on the World Wide Web which provides information about the organization and its activities, educational material about transgender issues, and information about how to start a local support group. Renaissance is incorporated in Pennsylvania, and its principal place of business is in Wayne, Pennsylvania. Renaissance sues on its own behalf and on behalf of its members.

24. Intervenor THE ETHICAL SPECTACLE is a non-profit corporation that publishes a free online magazine called The Ethical Spectacle on the World Wide Web. The Ethical Spectacle examines controversial issues of ethics, law and politics in America, including articles opposing online censorship laws such as the Communications Decency Act, and opposing the use of blocking software in public libraries. The Ethical Spectacle is incorporated in New York, and has its principal place of business in New York City.

25. Defendant Board of Trustees of the Loudoun County Public Library ("the Board") is a government entity responsible for oversight of the Loudoun County Public Library ("the Library") and which adopted the Policy at issue in this case. Defendants John J. Nicholas, Jr., Spencer D. Ault, Richard H. Black, Chris Howlett and Mary Ellen VanNederynen are members of the Board who voted to adopt the Policy. Defendant Nicholas is the Boardâs Chairman. Defendant Douglas Henderson is the Director of Library Services and is responsible for the operation of the Library and implementation of the Policy. The individual Board members are sued here in their official and personal capacities. Defendant Henderson is sued here in his official capacity.

Facts

The Nature of the Internet

26. The Internet is "an international network of interconnected computers . . . which enable[s] tens of millions of people to communicate with one another and to access vast amounts of information from around the world." 117 S. Ct. at 2334. It "may well be the premier technological innovation of the present age." American Library Ass'n v. Pataki, 969 F. Supp. 160, 161 (S.D.N.Y. 1997). In 1997, the Supreme Court affirmed a three-judge court's extensive findings of fact about the Internet. Reno v. ACLU, ___ U.S. ___, 117 S. Ct. 2329 (1997), aff'g ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996). The majority of the facts about the Internet asserted in this Complaint are taken from the findings of fact in Reno v. ACLU.

27. While estimates are difficult due to its constant and rapid growth, the Internet is currently believed to connect more than 159 countries and over 100 million users.

28. The Internet presents extremely low entry barriers to anyone who wishes to provide or distribute information. Unlike television, cable, radio, newspapers, magazines or books, the Internet provides the average citizen with an affordable means for communicating with a worldwide audience.

29. Any person with access to the Internet may communicate and retrieve information on almost any conceivable subject. The content on the Internet is as diverse as human thought.

30. The Internet is an invaluable information source and communication tool which is used by millions of users in innumerable ways. Minors, for example, use the Internet to do school homework and to seek information about extracurricular interests and hobbies.

31. The best known category of communications over the Internet is the World Wide Web, which allows users to search for and retrieve information stored in remote computers. In concrete terms, the Web consists of a vast number of documents stored in different computers all over the world.

32. The Web currently contains over 100 million documents, with thousands of documents added to the Web each day. Because of the ease with which content is added and manipulated on the Web, the content on existing Web sites is constantly changing.

33. Unlike most computer database systems, the computers on the Internet are linked together into a single whole. Links from one computer to another and from one document to another across the Internet, are what unify the Web into a single body of knowledge, and what makes the Web unique.

34. From the publishers' point of view, the Web constitutes a vast platform from which to address and hear from a world-wide audience of millions of readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can "publish" information. Publishers include government agencies, educational institutions, commercial entities, advocacy groups, and individuals. On the Internet, any person with a phone line can become a pamphleteer.

35. Once a provider posts content on the Internet, it is available to all other Internet users worldwide.

36. To gain access to the information available on the Web, a person uses a Web "browser" -- software such as Netscape Navigator or Microsoft's Internet Explorer -- to display, print and download documents. Each document on the Web has an address that allows users to find and retrieve it.

37. Most Web documents also contain "links." These are short sections of text or image that refer and link to another document. Typically the linked text is blued or underlined when displayed, and when selected by the user on the computer screen, the referenced document is automatically displayed, wherever in the world it actually is stored.

38. A variety of systems allow users of the Web to search for particular information among all of the public sites that are part of the Web. Services such as Yahoo, Magellan, Alta Vista, Webcrawler, Lycos and Infoseek provides tools called "search engines." Once a user has accessed the search service she simply types a word or string of words as a search request and the search engine provides a list of sites that match the search string.

39. Sexually oriented material is available on the Internet, but such material includes far more than what might be characterized colloquially as "pornography." As the Supreme Court noted, it includes nudes by Edward Weston and Robert Mapplethorpe, safer sex instructions, the seven "dirty words" used in the FCC v. Pacifica monologue, discussions about prison rape and human rights abuses, and arguably the card catalogue of the Carnegie Library. 117 S. Ct. at 2336, 2344, 2348.

40. Sexually oriented material on the Internet also includes the speech of intervenor The Safer Sex Page, which provides detailed information about safer sex, written in language that teenagers will understand; Banned Books On-Line, which provides the full text of books that have in the past been subject to censorship efforts, such as Fanny Hill: Memoirs of a Woman of Pleasure; and intervenor Sergio Arau, who exhibits paintings on the Web that contain some partially nude figures.

41. Internet users seldom encounter content accidentally. A document's title or a description of the document will usually appear before the document itself, and in many cases the user will receive detailed information about a site's content before he or she need take the step to access the document. Almost all sexually oriented images are preceded by warnings as to content. For that reason, the odds are slim that a user would enter a sexually oriented site by accident.

42. The Internet provides information on topics that might be considered offensive or harmful by some. For example, intervenor Jeremy Meyers has a Web site listing "Books for Gay and Lesbian Teens/Youth." Intervenor The Ethical Spectacle is an online magazine that discusses controversial issues such as human experimentation conducted at Auschwitz, the Nazi extermination camp.

43. The Internet also provides information on topics that are sensitive or involve personal information. For example, intervenor Renaissance Transgender Association has a Web site that discusses transgender issues. In addition, the Internet provides information about mental health, drug dependency, and medical conditions such as infertility and impotency.

44. Just like printed books, the Internet is a medium of speech entitled to full First Amendment protection. In Reno v. ACLU, the Supreme Court struck down on First Amendment grounds the "indecency" provisions of the Communications Decency Act. Applying strictest constitutional scrutiny, the Court held that there was "no basis for qualifying the level of First Amendment scrutiny that should be applied" to the Internet. 117 S. Ct. at 2344.

Internet Access at Public Libraries

45. The Internet is becoming the library of the future. As the Supreme Court noted, "The Web is . . . comparable, from the reader's viewpoint, to a vast library including millions of readily available and indexed publications . . . ." 117 S. Ct. at 2335.

46. Electronic resources provide unprecedented opportunities to expand the scope of information available to users in public libraries.

47. For the many people who cannot afford a personal computer, Internet access terminals at public libraries may be their only means of accessing the Internet. Despite the low cost barriers to Internet access, the Internet is still primarily used by the affluent, with only eighteen percent of users making less than $25,000.

48. In 1995, the National Telecommunications and Information Administration (NTIA) of the United States Department of Commerce concluded that "public institutions will play a critical role in assuring public access to the economic and social benefits of the Information Age, especially for those who do not have computers at home." The NTIA report concluded that "public libraries can play a vital role in assuring that advanced information services are universally available to all segments of the American population on an equitable basis. Just as libraries have traditionally made available marvels and imagination of the human mind to all, libraries of the future are planning to allow everyone to participate in the electronic renaissance."

49. There are many documents which are now produced only in electronic form and not in print. A growing number of government documents are no longer available in paper form but are accessible on the Internet. For such documents, accessibility by the public requires Internet access. Most government publications that would otherwise only be available to the public in federal depository libraries are now available to all Internet users as a result of the 1993 Government Printing Office Electronic Access Act. 

50. Libraries are used by a large segment of Americans. Almost forty-five percent of all U.S. households visited a public library within the last month. Among households with children under the age of eighteen, nearly sixty-one percent visited a library within that time.

51. A recent survey revealed that more than 60 percent of the nation's 8,900 libraries now offer public access to the Internet (up from nearly 28 percent in 1996).

52. People who may have Internet access elsewhere may nevertheless prefer to access sensitive, controversial, and personal information on the Internet at the library to reduce the possibility that their online research may be tracked to them personally and to obtain privacy and anonymity that they may not have when accessing the Internet at home or at work.

Internet Blocking Software

53. Blocking software is computer software that is configured to block certain Internet sites that would otherwise be accessible by all Internet users.

54. Although there are several types of blocking software, one popular type is known as stand-alone proprietary blocking software. This software is installed on computers that have access to the Internet, and works in conjunction with a Web browser to block information and sites on the Internet that would otherwise be available. Most stand-alone blocking software blocks sites based on criteria provided by the blocking software vendor.

55. To conduct site-based blocking, a software vendor establishes criteria to identify specified categories of speech on the Internet and configures the blocking software to block sites containing those categories of speech. Some Internet blocking software blocks as few as six categories of information, while others block up to 29 or more categories. Blocked categories may include hate speech, criminal activity, sexually explicit speech, "adult" speech, and violent speech. Some of the blocked categories express disapproval of a particular viewpoint, such as a category that blocks all information about "alternative" lifestyles such as homosexuality.

56. Using the criteria, the software vendor compiles and maintains lists of ãunacceptableä sites. Some software blocking vendors employ individuals who browse the Internet for sites to block. Other blocking software vendors use automated searching tools to identify which sites to block. These methods may be used in combination.

57. Blocking software vendors generally treat their blocking criteria as a trade secret. Accordingly, most vendors do not reveal their list of blocked sites. Blocking software vendors must update their list of blocked sites constantly to keep up with the rapidly increasing and changing content available on the Internet. Many blocking software vendors charge an additional fee to provide regular updates of the software to customers.

58. All blocking software depends on the exercise of subjective human judgment by the software vendor to decide what speech is acceptable and what is unacceptable.

59. Blocking software blocks speech on the Internet in advance of any judicial test of the legal status of the blocked speech and without any assessment by a court or jury as to local community standards.

Development of The Loudoun County Library's Internet Policy

60. The Loudoun County public library system serves the population of Loudoun County, Virginia through six branches as well as outreach services. Library branches are located in Leesburg, Cascades, Purcellville, Sterling, Lovettsville and Middleburg. In 1997, approximately 966,000 citizens visited Loudoun County libraries and checked out more than 1.7 million books, magazines, videos, audio cassettes and compact discs.

61. In November 1997, the Library began to offer Internet access through nine public terminals located at the six branches.

62. On October 20, 1997, the Board voted to adopt the current "Policy on Internet Sexual Harassment" ("the Policy"). The Policy was adopted by a vote of 5 to 4. A copy of the Policy is attached hereto.

63. The Policy provides that Internet blocking software designed to block specific sites on the Internet "will be installed on all computers."

64. The Policy states that the blocking software will "to the extent technically feasible" block "child pornography and obscene material (hard core pornography)" and "material deemed Harmful to Juveniles under applicable Virginia statutes and legal precedents (soft core pornography)." It also states that "Patrons will not be permitted to use the Internet to access pornography."

65. The Policy does not define the terms "child pornography," "obscene material," "hard core pornography," "material Harmful to Juveniles," or "soft core pornography," or "pornography."

66. The Policy states that the Library's computers will be placed "in close proximity to, and in full view of, library staff" so that staff can monitor use of the Internet by Library patrons.

67. The Policy asserts that allowing Library patrons unrestricted access to the Internet could create a sexually hostile environment in violation of Title VII of the Civil Rights Act of 1964.

68. The Policy does not allow any patron, adult or minor, to access the Internet without blocking software under any circumstances. Even with the blocking software, library users under age 18 must obtain written permission before using the library Internet terminals.

69. Library patrons who seek to access prohibited information under the Policy will be told by library staff that they are in violation, and if they continue, will be told to leave the library. If such patrons do not leave, the Policy states that they will be considered in trespass and police will be called to remove them from the premises.

Implementation of the Policy

70. In late November 1997, the Library Director selected a vendor for blocking software and installed the software on library computers before making Internet access available to the public in the Loudoun County Library system.

71. The library administration installed blocking software called X-Stop. X-Stop is a product created and sold by Log-On Data Corporation ("Log-On"), whose principal place of business is located at 4175 East La Palma Avenue, Suite 130, Anaheim, CA 92807. Promotional material for Log-On Data Corporation states that all management personnel of the company are graduate engineers, scientists, or researchers.

72. The version of X-Stop installed on library computers is designated "X-Stop 95/NT v.3.0."

73. X-Stop blocks speech on the Internet through site-based blocking. According to promotional material, Log-On adds Web sites to its blocking list for X

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