Filtering

[Steve Hoffman]

In Rejecting Dismissal of Filtering Case, 
Judge Sets High Standard for Libraries

Jeri Clausing
NY Times 4/9/98


In the first major ruling on the use Internet filtering software in
public libraries, a federal judge in Virginia has rejected efforts to
dismiss a challenge to the use of such software in Loudoun County,
Va.

Judge Leonie M. Brinkema of U.S. District Court for the Eastern
District of Virginia said in a forceful 36-page opinion on Tuesday
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.

The American Civil Liberties Union hailed the opinion as one of the
strongest ever defenses of online free speech , and one it hopes
will help slow the movement of legislation at the federal state, and
local level to require filters on school and library computers.

"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 lawyer on the case who also was on the team
that successfully fought the Communications Decency Act.

Beeson said that although the case will still go to trial, 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." 

Ken Bass, a Washington, D.C., lawyer defending Loudoun County,
agreed that the opinion set the "highest First Amendment hurdle for
the Loudoun County Board to clear. But I think they are wrong in
saying we can't clear it."

Bass said the judge acknowledged that obscenity is not protected by
the First Amendment, and he said that's what the Loudoun policy is
about: not providing access to obscenity. "She acknowledges that,"
he said.

"The nature of the Internet ... compels you to use filtering
software to not deliver obscenity to the public library," said Bass,
of the firm Venable, Baetjer, Howard & Civiletti. "You have to
filter. If you don't filter obscenity will come through. The issue
then becomes how do you design the filter. We are of the view that
when she hears all the evidence and has a full trial on how filtering
works, the volume of obscenity out there, she will be persuaded that
this is the only practical way to do it."

Eugene Volokh, a law professor at the University of California Los
Angeles who specializes in free speech and cyber issues, emphasized
that the opinion is "an early battle" in a contentious issue. 

"My sense is that one district judge does not a legal trend make or
even a legal doctrine," Volokh said. "I though this was a good
opinion. ... It certainly came out in favor of the ACLU, although it
does gloss over the fact that there are resource issues." 

In refusing to dismiss the case, Brinkema said library boards are
not immune from such suits, a point Bass indicated would be appealed.

But for now, the ACLU is relishing in what it considers an initial
victory from Brinkema.

Cassidy Seghal, a lawyer in the ACLU's Washington, D.C., office,
said the opinion should provide a tremendous boost to its
Congressional lobbying effort against a bill by Senator John McCain,
an Arizona Republican, that would require all libraries that receive
federal money to hook up to the Internet to have filtering software
on at least one computer for minors.

"The bottom line is that this decision is really what we were
waiting for in terms of going back to the Senate and fighting Senator
McCain on his bill," Seghal said.

McCain's bill originally called for filters on all computers at
schools also getting federal money for Internet hookups, but that
was amended to only require that schools adopt some sort of policy to
protect children from adult content. Such policies could include
simple supervision.

McCain's office declined to comment on the Loudoun ruling or on what
effect it might have on the movement of his bill, tentatively
scheduled for a May vote, saying it had not seen the Brinkema
ruling.

A number of states and localities are also considering filtering
policies for school and public libraries.

"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."

I refusing to dismiss the case, Brinkema did said library boards are
not immune from such suits -- a point Bass indicated would be
appealed -- but she did release board members from personal
liability.

Indeed, Bass said there were a number of cases around the country in
which libraries have been deterred from carrying out policies
similar to Loudoun's because of the threat of costly litigation.

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 that stuck
down the Communications Decency Act, 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 also rejected the notion that the use of blocking software
can be considered analogous to a librarian's 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."

The lawsuit challenging the Internet policy was filed in December by
Mainstream Loudoun and a number of residents of Loudoun County.
People For the American Way Foundation and the Washington, D.C., law
firm of Hogan and Hartson L.L.P. are representing the plaintiff as
co-counsel. 

Copyright 1998 The New York Times Company




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