The First Amendment and the Internet:
Mainstream Loudoun v. Bd. Of Trustees of the Loudoun County Library, 2 F. Supp.2d 783 E.D. Va. April 7, 1998
In this case, the court decided that a library’s trustees were not entitled to immunity under the CDA against a lawsuit arising out of their decision to block access to certain on line materials through the use of blocking software. The court also decided that because the blocking software appeared to be over-inclusive in the materials it filtered, there was a triable question as to whether unreasonable means had been employed.
This case explores the limits on the immunity offered by another provision of the CDA, § 230 (c)(2), as well as the ability of a public library to block Internet access to certain sites. Section 230(c)(2) provides that:
No provider or user 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.
The CDA defines an "interactive computer service" to include " a service or system that provides access to the Internet [that is] offered by libraries or educational institutions."
In Mainstream Loudoun, an association consisting of patrons of a public library and individual patrons brought suit against a public library and its officials alleging that its "Policy on Internet Sexual Harassment" which required site-blocking software to be installed on all library computers so as to block child and hard core pornography and material deemed harmful to juveniles under Virginia law impermissibly blocked their access to protected speech in violation of the First Amendment. The plaintiffs also alleged that the unblocking policy unconstitutionally chilled plaintiffs’ receipt of constitutionally protected materials.
The defendants first argued that they were entitled to immunity under § 230(c)(2). The United States District Court for the Eastern District of Virginia reject this argument, noting that, despite its facial appeal, the argument ignored Congress’ purpose in enacting this provision. That purpose was to minimize state regulation of Internet speech by encouraging private content providers to self-regulate against offensive material and not to insulate government regulation of Internet speech from judicial review.
Having determined that the defendants were not entitled to this type of immunity, the court next considered the substance of the plaintiffs’ First Amendment claims. The court noted that the central question before it in this regard was whether a public library may, without violating the First Amendment, enforce content-based restrictions on access to Internet speech and ruled that it could not absent a compelling state interest and means narrowly tailored toward that end.
In doing so, the court was guided by the Supreme Court’s decision in Bd. Of Educ. v. Pico, 457 U.S. 853 (1982) in which the Supreme Court held that a high school library could not remove books from its collection based on the mere disapproval of their content. The defendants argued that Pico had no application because this case involved a library’s decision not to "acquire" new materials via the Internet. The court disagreed on the ground that the library’s purchasing of Internet access made all Internet publications instantly available to patrons; the availability of the targeted materials had to be affirmatively denied by the library’s blocking software. The court concluded that Pico demonstrates that the First Amendment limits the discretion of a public library to place content-based restrictions on access to constitutionally protected materials within its collection including all information available on the Internet. The court also noted that, given that the library at issue was a public library serving adults, and not a high school library serving children, the library had even less discretion in this case than in Pico. In short, the court found no reason not to strictly scrutinize any restriction that the library placed on Internet access.
Turning to an examination of the materials to which access had been denied, the court noted that child pornography and obscenity were not entitled to First Amendment protection and that the library could therefore restrict access to them. However, the allegations that the filtering software was over-inclusive, denying access to such sites as the home pages of the Quakers and the Association of University Women-Maryland; that the blocking decisions were made by the California designer of the software based on secret criteria not even known to the defendants; and that only material fit for children to view was not blocked; were sufficient to allege that unreasonable means had been employed such that the law suit could go forward. The court also held that the defendants’ unblocking procedure, which the plaintiffs alleged required patrons to identify themselves and provide a detailed, written explanation of why they desire access to a blocked site, did not undercut the plaintiffs’ First Amendment claim. The court therefore denied the defendants’ motion to dismiss and, in the alternative, for summary judgment and permitted the case to go forward.