[N.B.: This is a partial transcription of the Court's ruling -- approximately the last 15 pages. The earlier part of Judge Brinkema's opinion addressed non-constitutional issues involving standing and immunity.] 

No.CA-97-2049-A

In the
United States District Court
for the Eastern District of Virginia

Mainstream Loudoun, et al., Plaintiffs,

v.

Board of Trustees of the Loudoun County Library, et al., Defendants.

MEMORANDUM OPINION AND ORDER

IV. Plaintiffs' First Amendment Claim

In their Motion to Dismiss for Failure to State a Claim, or, in the Alternative, for Summary Judgment, defendants concede that the Policy prohibits access to speech on the basis of its content. See Def. Brief at 11. However, defendants argue 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." Def. Brief at 2. Indeed, at oral argument, defendants went so far as to claim 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. See Feb. 27, 1998 Hearing Transcript at 48. Thus, the central question before this Court is whether a public library may, without violating the First Amendment, enforce content-based restrictions on access to Internet speech.

No cases directly address this issue. However, the parties agree that the most analogous authority on this issue is Board of Education v. Pico, 457 U.S. 853 (1982), in which the Supreme Court reviewed the decision of a local board of education to remove certain books from a high school library based on the board's belief that the books were "anti-American, anti- Christian, anti-Sem[i]tic, and just plain filthy." Id. at 856. The Second Circuit had reversed the district court's grant of summary judgment to the school board on plaintiff's First Amendment claim. A sharply-divided Court voted to affirm the Court of Appeal's decision to remand the case for a determination of the school board's motives. However, the Court did not render a majority opinion. Justice Brennan, joined by three Justices, wrote what is commonly referred to as the "plurality" opinion. Justice Brennan held that the First Amendment necessarily limits the government's right to remove materials on the basis of their content from a high school library. See id. at 864-69 (plurality op.). Justice Brennan reasoned that the right to receive information is inherent in the right to speak and that "the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge." Id. at 866 (quoting Griswold v. Connecticut, 381 U.S. 479, 482 (1965)); see also Stanley v. Georgia, 394 U.S. 557, 564 (1969) ("the Constitution protects the right to receive information and ideas"). Justice Brennan explained that this principle was particularly important given the special role of the school's library as a locus for free and independent inquiry. See id. at 869. At the same time, Justice Brennan recognized that public high schools play a crucial inculcative role in "the preparation of individuals for participation as citizens" and are therefore entitled to great discretion "to establish and apply their curriculum in such a way as to transmit community values." Id. at 863-64 (quoting Ambach v. Norwick, 441 U.S. 68, 76-77 (1979) (internal quotation marks omitted)). Accordingly, Justice Brennan held that the school board members could not remove books "simply because they dislike the ideas contained [in them]," thereby "prescrib[ing] what shall be orthodox in politics, nationalism, religion, or other matters of opinion," but that the board might remove books for reasons of educational suitability, for example pervasive vulgarity. Id. at 872 (quoting West Va. Bd. Of Educ. v. Barnette, 319 U.S. 624, 642 (1943)) (internal quotation marks omitted).

In a concurring opinion, Justice Blackmun focused not on the right to receive information recognized by the plurality, but on the school board's discrimination against disfavored ideas. Justice Blackmun explicitly recognized that Pico's facts invoked two significant, competing interests: the inculcative mission of public high schools and the First Amendment's core proscription against content-based regulation of speech. See id. at 876-79 (Blackmun, J., concurring). Justice Blackmun noted that the State must normally demonstrate a compelling reason for content- based regulation, but that a more limited form of protection should apply in the context of public high schools. See id. at 877-78. Balancing the two principles above, Justice Blackmun agreed with the plurality that the school board could not remove books based on mere disapproval of their content but could limit its collection for reasons of educational suitability or budgetary constraint. See id. at 879.

Dissenting, Chief Justice Burger, joined by three Justices, concluded that any First Amendment right to receive speech did not affirmatively obligate the government to provide such speech in high school libraries. See id. at 888 (Burger, C.J., dissenting). Chief Justice Burger reasoned that although the State could not constitutionally prohibit a speaker from reaching an intended audience, nothing in the First Amendment requires public high schools to act as a conduit for particular speech. See id. at 885-89. Chief Justice Burger explained that such an obligation would be inconsistent with public high schools' inculcative mission, which necessarily requires schools to make content-based choices among competing ideas in order to establish a curriculum and educate students. See id. at 889.

Defendants contend that the Pico plurality opinion has no application to this case because it addressed only decisions to remove materials from libraries and specifically declined to address library decisions to acquire materials. See id. at 861- 63, 871-72 (plurality op.). Defendants liken the Internet to a vast Interlibrary Loan system, and contend that restricting Internet access to selected materials is merely a decision not to acquire such materials rather than a decision to remove them from a library's collection. As such, defendants argue, the instant case is outside the scope of the Pico plurality.

In response, plaintiffs argue that, unlike a library's collection of individual books, the Internet is a "single, integrated system." Pl. Brief at 14 (quoting ACLU v. Reno, 929 F. Supp. 824, 838 (E.D. Pa. 1996), aff'd, 117 S. Ct. 2329 (1997). As plaintiffs explain, "[t]hough information on the Web is contained in individual computers, the fact that each of these computers is connected to the Internet through [World Wide Web] protocols allows all of the information to become part of a single body of knowledge." Pl. Brief at 15 (quoting Reno, 929 F. Supp. at 836). Accordingly, plaintiffs analogize the Internet to a set of encyclopedias, and the Library Board's enactment of the Policy to a decision to "black out" selected articles considered inappropriate for adult and juvenile patrons.

After considering both arguments, we conclude that defendants have misconstrued the nature of the Internet. By purchasing Internet access, each Loudoun library has made all Internet publications instantly accessible to its patrons. Unlike an Interlibrary loan or outright book purchase, no appreciable expenditure of library time or resources is required to make a particular Internet publication available to a library patron. In contrast, a library must actually expend resources to restrict Internet access to a publication that is otherwise immediately available. In effect, by purchasing one such publication, the library has purchased them all. The Internet therefore more closely resembles plaintiffs' analogy of a collection of encyclopedias from which defendants have laboriously redacted portions deemed unfit for library patrons. As such, the Library Board's action is more appropriately characterized as a removal decision. We therefore conclude that the principles discussed in the Pico plurality are relevant and apply to the Library Board's decision to promulgate and enforce the Policy.

Plaintiffs also contend that the plurality's decision in Pico establishes a blanket rule that removal decisions by libraries may not be resolved on summary judgment. We find plaintiffs' reading of Pico to be oversimplistic. It is true that a majority of the Pico Court voted to remand the case for a determination of the school board's motives, impliedly rejecting the unfettered discretion defendants claim. See id. at 875. At the same time, however, a majority of the Court could not agree on the degree of discretion available to school libraries. See id. at 856 (plurality op.); 875 (Blackmun, J., concurring); cf. id. at 883 (White, J., concurring). Nor did any of the Pico Justices directly address the special circumstances that obtain in public libraries. It would therefore be inappropriate for this Court to deny defendants' Motion without first determining the scope of discretion available to the Library Board to remove materials on the basis of their content.

Defendants argue that any limitation on their discretion to remove materials would force them to act as an unwilling conduit of information, and urge this Court to adopt the position of the Pico dissent. Defendants interpret the dissent to mean that they are entitled to unfettered discretion in deciding what materials to make available to library patrons.

Adopting defendants' position, however, would require this Court to ignore the Pico plurality's decision to remand the case, as discussed above. Moreover, all of the Pico Justices, including the dissenters, recognized that any discretion accorded to school libraries was uniquely tied to the public school's role as educator. See id. at 863-64, 869-71 (plurality op.); 875-76, 879 (Blackmun, J., concurring) ("Certainly, the unique environment of the school places substantial limits on the extent to which official decisions may be restrained by First Amendment values."); cf. id. at 889-92 (Burger, C.J., dissenting) ("Whatever role the government might play as a conduit of information, schools in particular ought not be made a slavish courier of the material of third parties ... . How are 'fundamental values' to be inculcated except by having school boards make content-based decisions about the appropriateness of retaining materials in the school library and curriculum[?]"); 909-10 (Rehnquist, J., dissenting) ("When it acts as an educator ... the government is engaged in inculcating social values and knowledge in relatively impressionable young people ... . In short, actions by the government as educator do not raise the same First Amendment concerns as actions by the government as sovereign."); 921 (O'Connor, J., dissenting) (stating that "in this case the government is acting in its special role as educator"). Of even more significance to our case is Justice Rehnquist's observation that high school libraries must be treated differently from public libraries. See id. at 915 (Rehnquist, J., dissenting) ("Unlike university or public libraries, elementary and secondary school libraries are not designed for freewheeling inquiry."). Indeed, Chief Justice Burger and Justice Rehnquist justified giving public schools broad discretion to remove books in part by noting that such materials remained available in public libraries. See id. at 892 (Burger, C.J., dissenting) ("Books may be acquired from ... public libraries, or other alternative sources unconnected with the unique environment of the local public schools."); 915 (Rehnquist, J., dissenting) ("[T]he most obvious reason that petitioners' removal of the books did not violate respondents' right to receive information is the ready availability of the books elsewhere. ... The books may be borrowed from a public library."). Accordingly, neither the dissent nor the plurality of Pico can be said to support defendants' argument that public libraries enjoy unfettered discretion to remove materials from their collections.

To the extent that Pico applies to this case, we conclude that it stands for the proposition that the First Amendment applies to, and limits, the discretion of a public library to place content-based restrictions on access to constitutionally protected materials within its collection. Consistent with the mandate of the First Amendment, 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.'" Id. at 876 (Blackmun, J., concurring) (quoting Barnette, 319 U.S. at 642).

Furthermore, the factors which justified giving high school libraries broad discretion to remove materials in Pico are not present in this case. The plaintiffs in this case are adults rather than children. Children, whose minds and values are still developing, have traditionally been afforded less First Amendment protection, particularly within the context of public high schools. See Tinker v. Des Moines Sch. Dist., 393 U.S. 503, 506 (1969). In contrast, adults are deemed to have acquired the maturity needed to participate fully in a democratic society, and their right to speak and receive speech is entitled to full First Amendment protection. Accordingly, adults are entitled to receive categories of speech, for example "pervasively vulgar" speech, which may be inappropriate for children. See Reno v. ACLU, 117 S. Ct. 2329, 2346 (1997); Sable Communications v. FCC, 492 U.S. 115, 126 (1989).

More importantly, the tension Justice Blackmun recognized between the inculcative role of high schools and the First Amendment's prohibition on content-based regulation of speech does not exist here. See Pico, 457 U.S. at 876-80 (Blackmun, J., concurring). Public libraries lack the inculcative mission that is the guiding purpose of public high schools. Instead, public libraries are places of freewheeling and independent inquiry. See id. at 914 (Rehnquist, J., dissenting). Adult library patrons are presumed to have acquired already the "fundamental values" needed to act as citizens, and have come to the library to pursue their personal intellectual interests rather than the curriculum of a high school classroom. As such, no curricular motive justifies a public library's decision to restrict access to Internet materials on the basis of their content.

Finally, the unique advantages of Internet speech eliminate any resource-related rationale libraries might otherwise have for engaging in content-based discrimination. The Supreme Court has 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." Reno, 117 S. Ct. at 2335. Unlike more traditional libraries, however, there is no marginal cost associated with acquiring Internet publications. Instead, all, or nearly all, Internet publications are jointly available for a single price. Indeed, 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. Nor do Internet publications, which exist only in "cyberspace," take up shelf space or require physical maintenance of any kind. Accordingly, considerations of cost or physical resources cannot justify a public library's decision to restrict access to Internet materials. Cf. Pico, 457 U.S. at 909 (Rehnquist, J., dissenting) (budgetary considerations force schools to choose some books over others); 879 n.1 (Blackmun, J., concurring) (same).

In sum, there is "no basis for qualifying the level of First Amendment scrutiny" that must be applied to a public library's decision to restrict access to Internet publications. Reno, 117 S. Ct. at 2344. We are therefore left with the First Amendment's central tenet that content-based restrictions on speech must be justified by a compelling governmental interest and must be narrowly tailored to achieve that end. See Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 118 (1991). This principle was recently affirmed within the context of Internet speech. See Reno, 117 S. Ct. at 2343-48. Accordingly, we hold that the Library Board may not adopt and enforce content-based restrictions on access to protected Internet speech absent a compelling state interest and means narrowly drawn to achieve that end.

This holding does not obligate defendants to act as unwilling conduits of information, because the Library Board need not provide access to the Internet at all. Having chosen to provide access, however, the Library Board may not thereafter selectively restrict certain categories of Internet speech because it disfavors their content. In accord with this holding is Lamont, discussed supra, in which the Court held that the Post Office could not constitutionally restrict access to speech it considered "communist propaganda," stating that "'[t]he United States may give up the post-office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues.'" Lamont, 381 U.S. at 305 (quoting Milwaukee Soc. Dem. Pub. Co. v. Burleson, 255 U.S. 407, 437 (1921) (Holmes, J., dissenting)); see id. at 310 ("If the Government wishes to withdraw a subsidy or a privilege, it must do so by means and on terms which do not endanger First Amendment rights.") (Brennan, J., concurring). Similarly, in this case, the Library Board need not offer Internet access, but, having chosen to provide it, must operate the service within the confines of the First Amendment.

A. Obscenity, Child Pornography, and Speech "Harmful to Juveniles"

Having determined that a public library must satisfy strict scrutiny before it may engage in content-based regulation of protected speech, we now consider the speech regulated by the Policy. The Policy prohibits access to three types of speech: obscenity, child pornography, and materials deemed "[h]armful to [j]uveniles." Complaint Ex. 1. Obscenity and child pornography are not entitled to the protections of the First Amendment, and the government may legitimately restrict access to such materials. See New York v. Ferber, 458 U.S. 747 (1982) (child pornography); Miller v. California, 413 U.S. 15 (1973) (obscenity). Indeed, "[t]ransmitting obscenity and child pornography, whether via the Internet or other means, is already illegal under federal law for both adults and juveniles." Reno, 117 S. Ct. at 2348 n.44. In the instant case, however, plaintiffs allege that the X-Stop filtering software chosen by defendants restricts many publications which are not obscene or pornographic, including materials unrelated to sex altogether, such as the Quaker's website. See Complaint ¶¶96-105. Moreover, plaintiffs allege that X-Stop fails to block access to pornographic materials arguably covered by the Policy. See Complaint ¶127. Most importantly, plaintiffs allege that the decision as to which materials to block is made by a California corporation based on secret criteria not disclosed even to defendants, criteria which may or may not bear any relation to legal definitions of obscenity or child pornography. See Complaint ¶¶95, 128-29. As such, plaintiffs argue that the means called for by the Policy are not narrowly tailored to any legitimate interest defendants may have in regulating obscenity and child pornography.

The Policy also prohibits access to materials which are "deemed Harmful to Juveniles under applicable Virginia statutes and legal precedents." This appears to be a reference to Virginia Code §18.2-390, which defines materials "Harmful to Juveniles" to include sexual content that:

(a) predominately appeals to the prurient, shameful or morbid interest of juveniles, (b) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for juveniles, and (c) is, when taken as a whole, lacking in serious literary, artistic, political or scientific value for juveniles.

Plaintiffs allege that the Policy improperly limits adult Internet speech to what is fit for children. In support, plaintiffs cite Reno, 117 S. Ct. at 2329. In Reno, the Supreme Court held that a content-based Internet regulation intended to prevent the transmission of material harmful to minors was unconstitutional because it suppressed speech adults were constitutionally entitled to send and receive. The Court stated:

It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not "reduc[e] the adult population ... to ... only what is fit for children."

Id. at 2346 (quoting Denver Area Telecomm. Consortium v. FCC, 116 S.Ct. 2374, 2393 (1996)) (citations omitted). The Court went on to cite Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), for the proposition that: "'[R]egardless of the strength of the government's interest' in protecting children, '[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.'" Reno, 117 S. Ct. at 2346 (quoting Bolger, 463 U.S. at 74-75). Applying Reno to the instant case, it is clear that defendants may not, in the interest of protecting children, limit the speech available to adults to what is fit for "juveniles." As plaintiffs point out, even when government regulation of content is undertaken for a legitimate purpose, whether it be to prevent the communication of obscene speech or materials harmful to children, the means it uses must be a "reasonable response to the threat" which will alleviate the harm "in a direct and material way." Turner Broadcasting v. FCC, 512 U.S. 622, 624 (1994). Plaintiffs have adequately alleged a lack of such reasonable means here. As such, plaintiffs have stated a valid First Amendment claim which may go forward.

B. The Unblocking Policy

Defendants contend that, even if the First Amendment limits the Library Board's discretion to remove materials, the unblocking procedure ensures the constitutionality of the Policy because it allows library staff to make certain that only constitutionally unprotected materials are blocked. Under the unblocking policy, library patrons who have been denied access to a site may submit a written request which must include their name, telephone number, and a detailed explanation of why they desire access to the blocked site. The library staff then "decide[s] whether the request should be granted." Def. Brief at 3. ⁴

Plaintiffs argue that the unblocking procedure constitutes an unconstitutional burden on the right of library patrons to access protected speech, citing Lamont, 381 U.S. at 301. The statute at issue in Lamont directed the Postmaster General not to deliver "communist propaganda" to postal patrons unless they first returned to the Post Office a card bearing their names and addresses and specifically requesting that such materials be sent to them. See id. at 302-04. The Supreme Court held the statute to be "unconstitutional because it require[d] an official act (viz., returning the reply card) as a limitation on the unfettered exercise of the addressees' First Amendment rights." Id. at 305. In particular, the Court noted the severe chilling effect of forcing citizens to publicly petition the Government for access to speech it clearly disfavored. See id. at 307.

Here, as in Lamont, the unblocking policy forces adult patrons to petition the Government for access to otherwise protected speech, for example speech "Harmful to Juveniles." Indeed, the Loudoun County unblocking policy appears more chilling than the restriction at issue in Lamont, because it grants library staff standardless discretion to refuse access to protected speech, whereas the statute at issue in Lamont required postal employees to grant access requests automatically. As such, defendants' alleged unblocking procedure does not in any way undercut plaintiffs' First Amendment claim.

V. Conclusion

For the reasons set forth above, defendants' Motion to Dismiss the Individual Defendants will be GRANTED, and their Motion to Dismiss for Failure to State a Claim will be GRANTED IN PART as to certain plaintiffs and DENIED in all other respects. As to defendants' Motion in the Alternative for Summary Judgment, this Court holds that several material factual issues remain which mandate against summary judgment at this time. These include, but are not limited to, defendants' justification for the Policy, the Internet sites blocked by X-Stop, and the degree of defendants' knowledge of and control over the sites X-Stop blocks. Accordingly, defendants' Motion in the Alternative for Summary Judgment will also be DENIED. An appropriate order will issue.

The Clerk is directed to forward copies of this Memorandum Opinion to counsel of record.

Entered this 7th day of April, 1998.

Leonie M. Brinkema
United States District Judge
Alexandria, Virgina

4For purposes of defendants' Motion to Dismiss for Failure to State a Claim or, in the Alternative, for Summary Judgment, the Court accepts plaintiffs' description of the unblocking policy as accurate. See Complaint ¶¶127-29.