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

MAINSTREAM LOUDOUN, et. al., Plaintiffs, v. BOARD OF TRUSTEES OF THE LOUDOUN COUNTY LIBRARY, Defendant.

Civil Action No. 97-2049-A

MEMORANDUM OPINION

BACKGROUND

At issue in this civil action is whether a public library may enact a policy prohibiting the access of library patrons to certain content-based categories of Internet publications. Plaintiffs are a Loudoun County non-profit organization, suing on its own behalf and on behalf of its members, and individual Loudoun County residents who claim to have had their access to Internet sites blocked by the defendant library board's Internet policy. They, along with plaintiff-intervenors ("intervenors"), individuals and other entities who claim that defendant's Internet policy has blocked their websites or other materials they placed on the Internet, allege that this policy infringes their right to free speech under the First Amendment. Defendant, the Board of Trustees of the Loudoun County Library, contends that a public library has an absolute right to limit what it provides to the public and that any restrictions on Internet access do not implicate the First Amendment.

The background of this action is fully summarized in this Court's April 7, 1998 Memorandum Opinion and will not be repeated in depth here. On October 20, 1997, defendant passed a "Policy on Internet Sexual Harassment" ("Policy") stating that the Loudoun County public libraries would provide Internet access to its patrons subject to the following restrictions: (1) the library would not provide e-mail, chat rooms, or pornography; (2) all library computers would be equipped with site-blocking software to block all sites displaying: (a) child pornography and obscene material;¹ and (b) material deemed harmful to juveniles; (3) all library computers would be installed near and in full view of library staff; and (4) patrons would not be permitted to access pornography and, if they do so and refuse to stop, the police may be called to intervene. See Pls. Ex. 1. It is the second restriction in the Policy that lies at the heart of this action.

To effectuate the second restriction, the library has purchased X-Stop, commercial site-blocking software manufactured by Log-On Data Corporation. While the method by which X-Stop chooses sites to block has been kept secret by its developers, see Pls. Ex. 16, Dep. of Michael S. Bradshaw ("Bradshaw Dep.") at 12-13, it is undisputed that it has blocked at least some sites that do not contain any material that is prohibited by the Policy.²

If a patron is blocked from accessing a site that she feels should not be blocked under the Policy, she may request that defendant unblock the site by filing an official, written request with the librarian stating her name, the site she wants unblocked, and the reason why she wants to access the site. See Intervs. Ex. 21, Request to Review Blocked Site. The librarian will then review the site and manually unblock it if he determines that the site should not be blocked under the Policy. There is no time limit in which a request must be handled and no procedure for notifying the patron of the outcome of a request. See Pls. Ex. 18, Deposition of Cindy Timmerman at 93-94. All unblocking requests to date have been approved. See Def. Ex. 15, Decl. of Douglas Henderson ("Henderson Decl.") at ¶ 18.

Plaintiffs and intervenors both allege that the Policy, as written and as implemented, violates their First Amendment rights because it impermissibly discriminates against protected speech on the basis of content and constitutes an unconstitutional prior restraint. In response, defendant contends: (1) intervenors do not have standing; (2) the Policy does not implicate the First Amendment and is reasonable; (3) the Policy is the least restrictive means to achieve two compelling government interests; and (4) the library has statutory immunity from this action.

In the motions now before the Court, plaintiffs, intervenors, and defendant each ask the Court to grant summary judgement their favor. Intervenors also ask the Court to permit them to substitute for three of their parties.³

ANALYSIS

I.  Standing

Defendant alleges that all of the intervenors lack standing. Intervenors include three websites (the Safer Sex Page, Banned Books Online, and the Books for Gay and Lesbian Teens/Youth page), two non-profit corporations with websites (the American Association of University Women and the Renaissance Transgender Association), one for-profit corporation with a website (The Ethical Spectacle), one newspaper columnist whose articles are published on a website (Rob Morse, writer for the San Francisco Examiner), and an artist whose work is published on a website (Sergio Arau). See February 6, 1998 Mot. Intervene as Pls.

A.  Non-Jural Persons

Defendant argues that the three website intervenors lack standing because they are non-jural entities, being neither individual persons nor corporations. While intervenors assert that these three entities do have standing as alleged in their complaint, they have filed a motion to Substitute Parties to resolve this dispute. In each case, they wish to replace the web page with the individual who owns and operates it. Specifically, intervenors would substitute Christopher Filkins for The Safer Sex Page, John Ockerbloom for Banned Books Online, and Jeremy Meyers for Books for Gay and Lesbian Teens/Youth. These individuals are jural entities with a clear First Amendment interest in communicating the speech they have published via these sites.

Defendant contends that the Motion to Substitute Parties should be denied for two reasons. First, defendant alleges it would be prejudiced by adding these individuals as named intervenors at this late stage of the proceedings. All three individuals, however, were named in the original complaint and there has been no problem deposing them or obtaining discovery from and about them. Defendant cannot point to any specific actual or potential prejudice to its case and we find that there would be none. Second, defendant contends that the real party in interest in this litigation is the ACLU, which represents the Renaissance Transgender Association, and that the dismissal of the website intervenors would still leave the Renaissance Transgender Association as an adequate nominal party through which the ACLU could pursue this action. Defendant has not presented a single piece of evidence to substantiate this allegation or to demonstrate that these individuals have not asserted a real injury-in-fact that could be redressed by this Court. Therefore, intervenors' motion to substitute parties will be granted, which moots defendant's argument that these three intervenors do not have standing because they are non-jural entities.

B.  Websites Never Blocked

Defendant next alleges that five of the intervenors, John Ockerbloom d/b/a Banned Books Online, the American Association of University Women, The Ethical Spectacle, Robert Morse, and Sergio Arau, have no standing because there is no evidence in the record that their websites were ever blocked. To the contrary, intervenors have submitted the Declaration of Alpna Cassidy Sehgal, a staff attorney for the ACLU. See Intervs. Decl. N ("Sehgal Decl."). In the Declaration, Sehgal alleges that she visited the Rust Branch of the Loudoun County Public Library on February 2, 1998 and, as a result of the Policy, was denied access, in whole or in part, to the websites of each of the intervenors. See id. at ¶¶ 2, 9-12, 14-16, 20.

Defendant first alleges that the Sehgal Declaration should be disregarded pursuant to the lawyer-witness rule. Intervenors respond that the lawyer-witness rule prohibits an attorney who may be called as a witness only from acting as an advocate at trial, and not from assisting with trial preparation. See, e.g., Culebras Enterprises Corp. v. Riviera-Rios, 846 F.2d 94 (1st Cir. 1988) (finding that lawyers who did substantial pretrial work did not violate lawyer-witness rule because they were not "advocates at trial"). Intervenors' statement of the law is correct. it is undisputed that Sehgal has not and will not act as an advocate in this action. We find no reason to disregard her declaration.

In the alternative, defendant contends that there is a material factual dispute as to whether these five sites were ever blocked. Defendant alleges that it attempted to access the sites of all eight intervenors on February 6, 1998, using a library computer employing the X-Stop software, and that only The Safer Sex Page, the Books for Gay and Lesbian Teens/Youth page, and the Renaissance Transgender Association page were blocked at that time. See Def. Ex. 18, Def. Answer to Intervs. Sec. Interrogs. Defendant asserts that this evidence contradicts Sehgal's declaration and, therefore, creates a dispute as to a material fact. Defendant's own witnesses, however, demonstrate the dynamic nature of the Internet, see Henderson Decl. at ¶ 14, and X-Stop, their filtering software. See Bradshaw Dep. at 49-51. It is entirely possible that these sites were blocked on February 2 but not blocked four days later.⁴  Therefore, we find that the Sehgal declaration is unrebutted evidence that the sites, in whole or in part, were blocked by defendant on February 2, 1998, and therefore that these intervenors will not be denied standing on this basis.

C.  Websites That Were Unblocked

As noted above, defendant concedes that it blocked three of the intervenors' sites, The Safer Sex Page, the Books for Gay and Lesbian Teens/Youth page, and the Renaissance Transgender Association page, as of February 6, 1998, even though these sites admittedly did not violate the Policy. See Def. Ex. 18, Def. Answer Intervs. Sec. Interrogs. It is undisputed that by May 1998 defendant had unblocked these three sites, see id., and there is no evidence that any of intervenors' sites have been blocked since then. Defendant asserts that none of the intervenors have standing to sue now because their sites are no longer blocked, they do not contain "any material that would even be considered a candidate for blocking," and "there is no reason to expect that any of these web sites will ever be candidates for blocking under the Internet Policy." Def. Mem. Support Motion Summ. J. at 6, 8. Therefore, defendant contends, intervenors cannot meet the burden of demonstrating that they have an "injury that could be redressed if the requested relief is granted." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).  See, Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 45-46 (1976) (stating that a plaintiff must demonstrate a "likelihood that the requested relief will redress the alleged injury").

In response, intervenors allege that they have standing to sue if there is a legitimate fear that the policy will be enforced against them, or if defendant, having blocked intervenors' speech on one occasion, is likely to do so again. See ACLU v. Reno, 929 F. Supp. 824, 851 (E.D. Pa. 1996) , aff'd, 117 S. Ct. 2329 (1997) (holding that plaintiffs had standing to bring pre-enforcement facial challenge against the Communications Decency Act). One way to demonstrate that a defendant is likely to block intervenors' speech is to show that it retains unfettered discretion in enforcing the Policy. See 11126 Baltimore Boulevard, Inc. v. Prince George's County, 58 F.3d 988, 993-94 (4th Cir. 1995) (finding a facial challenge to an ordinance restricting speech appropriate where a plaintiff alleges the ordinance does not contain "specific standards to guide the decisionmaker" or "appropriate procedural safeguards to ensure a prompt resolution").

Intervenors also argue that "'voluntary cessation of allegedly illegal conduct does not deprive the tribunal of the power to hear and determine the case.'" Commonwealth of Virginia v. Califano, 631 F.2d 324, 326 (4th Cir. 1980) (quoting United States v. W.T. Grant Co. 345 U.S. 629, 632 (1953)). In W.T. Grant, the Supreme Court warned that courts must "beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is a probability of resumption." Id. at 632 n.5. The Court further explained that a voluntary cessation of wrongful activity would only moot an action if "the defendant can demonstrate that there is no reasonable expectation that the wrong will be repeated." Id. at 633. To do otherwise, the Court opined, would leave the defendant "free to return to his old ways." Id. at 632.

Defendant has failed to carry its burden of demonstrating that the wrong will not be repeated. Douglas Henderson, defendant's Director of Library Services, has acknowledged that the content and imagery on websites frequently changes. See Henderson Decl. at ¶ 14 (acknowledging "the changing nature of the WorldWideWeb"). In addition, the materials from one website also may be transferred to another website located at a different address. See Intervs. Decl. A, Decl. of Sergio Arau ("Arau Decl.") at ¶ 5. Such changes could lead X-Stop to block even previously unblocked material. Therefore, intervenors are justified in having a reasonable expectation that they may be blocked again in the future.

Furthermore, defendant's concession that none of the intervenors' websites contain or likely will ever contain material that violates the Policy does not prevent intervenors from having standing given defendant's admissions that X-Stop blocks websites that do not violate the Policy and that defendant does not even know what websites X-Stop blocks or how it selects them. See Henderson Decl. at ¶ 18 (stating that defendant is aware that X-Stop blocks websites that defendant would not block "if we knew about them"); Bradshaw Dep. at 12-13 (stating that Log-On Data Corp. has refused to provide defendant with the criteria it uses to censor websites); Pls. Ex. 2, Dep. of Douglas Henderson ("Henderson Dep."), at 494 (stating that defendant has never seen a list of the blocked sites). On this record, because defendant cannot "demonstrate that there is no reasonable expectation that the wrong will be repeated," and because a declaratory judgment would provide intervenors with relief, we find that the fact they are currently unblocked does not prevent intervenors from having standing to pursue this action.⁵

D.  Banned Books Online

Defendant next claims that one of the intervenors, John Ockerbloom d/b/a Banned Books online, lacks standing because defendant has never blocked his website. Ockerbloom admits that there is no evidence that defendant has ever blocked his website, but asserts that he has standing because defendant blocked a link⁶ from his website to a website providing the text of E for Ecstasy, a book about the history of the drug MDMA. See Sehgal Decl. at ¶ 15. Ockerbloom alleges that part of the mission of his website is to provide users with access to censored materials, such as E for Ecstasy. Therefore, blocking access to one of the links is a concrete injury to his free speech rights.

The extent to which free speech protection reaches links on the Internet has not been directly addressed by any court. In more traditional contexts, individuals are frequently found to have standing to challenge restrictions on speech in which they have a sufficient interest even where that speech is not originally theirs. For example, owners of adult bookstores can challenge censorship of books they intend to sell,⁷ owners of adult movie theaters have standing to protest censorship of movies they intend to show,⁸ and library patrons have standing to challenge library policies restricting their exercise of the First Amendment right to receive information.⁹ In essence, intervenor Ockerbloom has sought to intervene in this action because he claims to have an interest in the E for Ecstasy page, material he explicitly and purposely has made available for use by others.

While this argument is initially appealing, its consequences would be unmanageable. Because of the ease of establishing links to any and every site on the Internet, if we find that Ockerbloom has standing in this case it would be impossible to prevent anyone from asserting standing to protest alleged Internet-related First Amendment harms wherever, whenever, and to whomever they occur. For example, by virtue of the ACLU having placed links to each of the intervenors' web pages on its own Internet site, see Def. Ex. 18, thereby asserting an interest in the speech of the intervenors, it would be able to assert the rights of each intervenor in a lawsuit brought only in its own name. Such a result would make a mockery of traditional standing principles. Therefore, we find that John Ockerbloom d/b/a Banned Books On-Line, does not have standing and should be dismissed from this action.

E.  Sergio Arau

Defendant also asserts that intervenor Sergio Arau does not have standing because he does not have any material published on the Internet to block. Arau responds that some of his work was blocked as of February 2, 1998, see Sehgal Decl. at ¶ 20, and that similar artwork and music of his are currently available on the Internet, although at a new website. See Arau Decl. at 5; Arau Decl. Ex. 7. Defendant has not rebutted this evidence. Therefore, we find that Arau's work is currently displayed on the Internet, that it is potentially at risk of being blocked again by defendant, and that he has standing to pursue this action.

F.  Robert Morse

Lastly, defendant argues that intervenor Robert Morse, a columnist for the San Francisco Examiner, does not have standing because he gave up any First Amendment right in his columns by ceding the intellectual property rights in those columns to his newspaper. Morse counters that there is no legal support for the proposition that by relinquishing intellectual property rights in his work an individual also surrenders his First Amendment interest in that work. Indeed, authors and journalists who have given up the copyright to their work can still he sued for defamation resulting from that work and can still offer the First Amendment as a defense to such lawsuits. See, e.g., Masson v. New Yorker, 501 U.S. 496, 499 (1991) (noting that "[t]he First Amendment protects authors and journalists who write about public figures"). We find no legal or logical support for defendant's position and, therefore, find that Morse has standing to intervene in this action.

II.  Immunity.

Defendant has requested that we reconsider our previous finding that it is not immune from this litigation pursuant to a provision of the 1996 Communications Decency Act granting absolute immunity to good faith users of filtering software. See 47 U.S.C. § 230(c)(2)(A). In our previous opinion, we found that § 230 provides immunity from actions for damages; it does not, however, immunize defendant from an action for declaratory and injunctive relief. We see no reason to stray from our earlier decision, which is the law of this case. If Congress had intended the statute to insulate Internet providers from both liability and declaratory and injunctive relief, it would have said so.

IV.  Strict Scrutiny Standard

Defendant has also requested that we reconsider our earlier findings (1) that the Policy implicates the First Amendment and (2) that the appropriate standard of review is strict scrutiny.

A.  Implicating the First Amendment

Defendant first contends that the Policy should really be construed as a library acquisition decision, to which the First Amendment does not apply,¹⁰ rather than a decision to remove library materials. Plaintiffs and intervenors contend that this issue has already been decided by this Court and is the law of the case. See Mainstream Loudoun v. Board of Trustees of the Loudoun county Library, et al., 2 F.Supp. 2d 783, 794-95 (E.D. Va. 1998) ("[T]he Library Board's action is more appropriately characterized as a removal decision"; "[W]e conclude that [Pico] stands for the proposition 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.").

We addressed the acquisition/removal argument at length in our previous decision and defendant has not presented a single new argument or authority to support its position. Indeed, defendant's own expert, David Burt, undercuts its argument by acknowledging that "[f]iltering cannot be rightly compared to 'selection', since it involves an active, rather than passive exclusion of certain types of content." Def. Ex. 21, Rep. of David Burt ("Burt Rep.") at 15. Therefore, we decline to reconsider our earlier ruling on this issue.

B.  Forum Analysis

Next, defendant contends that even if the First Amendment does apply, we should apply a less stringent standard than strict scrutiny. Specifically, defendant argues that because the library is a non-public forum, the Policy should be reviewed by an intermediate scrutiny standard, examining whether it is reasonably related to an important governmental interest. Citing Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992), defendant argues that public libraries are non-public fora and, therefore, content-based speech regulations are not subject to the strict scrutiny standard. Rather, it asserts, such regulations need only be "reasonable and viewpoint neutral" to he upheld. Def. Brief in Opp. at 34-37 (citing International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 694 (1992) (Kennedy, J. concurring)). Plaintiffs and intervenors respond that defendant has misread Kreimer and moreover that the library is a limited public forum in which content-based regulations are subject to strict scrutiny.

Defendant concedes that the Policy is a content-based regulation of speech and that content-based regulations of speech in a limited public forum are subject to strict scrutiny. Def. Brief in Opp. at 36-37. The only issue before us, then, is whether the library is a limited public forum or a non-public forum. In Perry Education Ass'n v. Perry Local Ass'n, 460 U.S. 37, 45-46 (1983), the Supreme Court identified three categories of fora for the purpose of analyzing the degree of protection afforded to speech. The first category is the traditional forum, such as a sidewalk or public park. These are "places which by long tradition or by government fiat have been devoted to assembly and debate". Id. at 4 5. Second is the limited or designated forum, such as a school board meeting or municipa