Mainstream Loudon v. Board of Trustees of the Loudon County Library
Chapter 04
Title Page
Email Listserve[NOTE: This case has been edited for classroom use by the omission of text, citations, and footnotes. See this alternate source for the full opinion.]
Leonie M. Brinkema, United States District Judge
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 a site-blocking software to block all sites displaying: (a) child pornography and obscene material; n1 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. 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, it is undisputed that it has blocked at last some sites that do do not contain any material that is prohibited by the Policy.
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. 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. All unblocking requests do date have been approved.
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 in their favor. Intervenors also ask the Court to permit them to substitute for three of their parties.
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 website (Sergio Arau).
. . . .
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. It is undisputed that by May 1998 defendant had unblocked these three sites, 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."
. . . .
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. In addition, the materials from one website also may be transferred to another website located at a different address. 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. 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.
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 link from his website to a website providing the text of E for Ecstasy, a book about the history of the drug MDMA. Ockerbloom alleges that part of the mission of his website is to provide users with access to censored materials, such as E for Ecstacy. 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 is not originally theirs. For example, owners of the adult bookstores can challenge censorship of books they intend to sell, owners of adult movie theaters have standing to protest censorship of movies they intend to show, and library patrons have standing to challenge library policies restricting their exercise of the First Amendment right to receive information. In essence, intervenor Ockerbloom has sought to intervene in this action because he claims to have an interest in the E for Ecstacy page, material be 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, 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.
. . . .
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 be sued for defamation resulting from that work and can still offer the First Amendment as a defense to such lawsuits. 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.
III. 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, 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.
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." Therefore, we decline to reconsider our earlier ruling on this issue.
B. Forum Analysis
Next, defendants 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), defendants 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 be upheld. 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. The only issue before us, then, is whether the library is a limited public forum or a non-public forum. [T]he Supreme Court [has] 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". Second is the limited or designated forum, such as a school board meeting or municipal theater. This category consists of "public property which the State has opened for use by the public as a place for expressive activity". The last category is the non-public forum, such as a government office building or a teacher's mailbox, which is not "by tradition or designation a forum for public communication." It is undisputed that the Loudon County libraries have not traditionally been open to the public for all forms of expressive activity and, therefore, are not traditional public fora.
A limited public forum is created when the government voluntarily opens a particularly forum to the public for expensive activity. The government can create a limited public forum for all, some, or only a single kind of expressive activity. Even though it is not required to operate such a forum, once the government does so it "is bound by the same standards as apply in a traditional public forum." Therefore, content-neutral time, place, and manner regulations on the expressive activity or activities allowed are permissible if narrowly tailored to serve a significant government interest while leaving open ample alternative channels of communication. Any content-based restriction, however, must be "narrowly drawn to effectuate a compelling state interest."
The only court to have examined whether a public library constitutes a limited public forum is the Third Circuit in Kreimer. In determining that the public library constituted a limited public forum, the court considered three factors: government intent; extent of use; and nature of the forum. We agree that these are the crucial factors in determining whether a forum is a limited or a non-public forum.
. . . .
We find that defendant intended to designate the Loudon County libraries as public fora for the limited purposes of the expressive activities they provide, including the receipt and communication of information through the Internet.
. . . .
As to the extent of use of the government has allowed, defendant has designated the library for the use of "the people" and has declared that "[l]ibrary access and use will not be restricted nor denied to anyone because of age, race, religion, origin, background or views."
. . . .
While the nature of the public library would clearly not be compatible with many forms of expressive activity, such as giving speeches or holding rallies, we find that it is compatible with the expressive activity at issue here, the receipt and communication of information through the Internet. Indeed, this expressive activity is explicitly offered by the library.
All three of these factors indicate that the Loudon County libraries are limited public fora and, therefore, that defendant must "permit the public to exercise rights that are consistent with the nature of the Library and consistent with the government's intent in designating the Library as a public forum." The receipt and communication of information through the Internet is consistent with both.
Because the Policy at issue limits the receipt and communication of information through the Internet based on the content of that information, it is subject to a strict scrutiny analysis and will only survive if it is "necessary to serve a compelling state interest and . . . is narrowly drawn to achieve that end."
C. Renton/Time, Place, and Manner
Defendant also argues in the alternative that the strict scrutiny standard should not apply because the Policy is more appropriately viewed as a time, place, and manner restriction pursuant to City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), than as a traditional content-based restriction on speech. Plaintiffs respond that this analysis is inapplicable to the Policy, which is designed to address the primary effects of Internet speech and which defendant admits restricts speech based on content.
In Renton, the Supreme Court found that a zoning ordinance prohibiting adult movie theaters from locating within 1000 feet of residential neighborhoods, churches, and specific other structures was a content-neutral time, place, and manner restriction because it could be justified without reference to the content of the speech in the theaters. The city justified the ordinance as necessary to address the secondary effects of adult theaters in certain neighborhoods, namely preventing crime, protecting retail trade, maintaining property values, and preserving the quality of the neighborhoods, districts, and life. See id. at 48. The Court found that none of these secondary effects were related to the content of the movies shown at the theaters. Therefore, the Court found the ordinance to be constitutional.
In a subsequent decision clarifying what it meant by "secondary effects," the Supreme Court held that "[r]egulations that focus on . . . [l]isteners' reactions to speech are not the type of 'secondary effects' we referred to in Renton." Boos v. Barry, 485 U.S. 312, 321 (1988). More recently, in construing the Communications Decency Act, the Court stated that "content-based blanket restrictions on speech . . . cannot be 'properly analyzed as a form of time, place, and manner regulation'"Reno v. ACLU, 117 S.Ct. 2329, 2342 (1997).
Defendant contends that the Policy is designed to combat two secondary effects: creating a sexually hostile environment and violating obscenity, child pornography, and harm to juveniles laws. Neither of these are secondary effects and neither can be justified without reference to the content of the speech at issue. The defendant's concern that without installing filtering software. Internet viewing might lead to a sexually hostile environment is solely focused on the reaction of the audience to a certain category of speech. As the Supreme Court noted in Boos, this is not a secondary effect. The defendant's second concern is the possible violation of various criminal statutes that address materials deemed to be obscene, involve child pornography, or are harmful to juveniles. These criminal statutes define prohibited speech only by and because of its content. Far from addressing secondary effects of speech, these statutes focus on the very speech itself.
Indeed, the Fourth Circuit has recently observed that content-neutrality is a prerequisite to the constitutionality of time, place, and manner restrictions on expressive conduct on public grounds. Therefore, defendant's admission that the Policy discriminates against speech based on content indicates that it would not be constitutional even if it were a time, place, and manner restriction.
III. Constitutionality of the Policy
Defendant contends that even if we conclude that strict scrutiny is the appropriate standard of review, the Policy is constitutional because it is the least restrictive means to achieve two compelling government interests: "1) minimizing access to illegal pornography; and 2) avoidance of creation of a sexually hostile environment . . . ." Plaintiffs and intervenors respond that there is no evidence that the Policy is necessary to further these interests nor that it is the least restrictive means available. Moreover, they argue that the Policy imposes an unconstitutional prior restraint on speech.
A content-based limitation on speech will be upheld only where the state demonstrates that limitation "is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." This test involves three distinct inquiries: (1) whether the interests asserted by the state are compelling; (2) whether the limitation is necessary to further those interests; and (3) whether the limitation is narrowly drawn to achieve those interests.
A. Whether the Defendant's Interests Are Compelling
Defendant argues that both of its asserted interests are compelling. Although plaintiffs and intervenors argue that these interests were not really the motivating factors behind the Policy and that they are not furthered by the Policy, they do not argue that the interests themselves are not compelling. For the purposes of this analysis, therefore, we assume that minimizing access to illegal pornography and avoidance of creation of a sexually hostile environment n16 are compelling government interests.
B. Whether the Policy is Necessary to Further Those Interests
To satisfy strict scrutiny, defendant must do more than demonstrate that it has a compelling interest; it must also demonstrate that the Policy is necessary to further that interest. In other words, defendant must demonstrate that in the absence of the Policy, a sexually hostile environment might exist and/or there would be a problem with individuals accessing child pornography or obscenity or minors accessing materials that are illegal as to them. Defendant "must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Turner Broad, Sys., Inc. v. FCC, 512 U.S. 622, 664. The defendant bears this burden because "[t]he interest in encouraging freedom of expression in a democratic society outweighs any thoeretical but unproven benefit of censorship." Reno v. ACLU, 117 S.Ct. 2329, 2351 (1997).
The only evidence to which defendant can point in support of its argument that the Policy is necessary consists of a record of a single complaint arising from Internet use in another Virginia library and reports of isolated incidents in three other libraries across the country. In the Bedford County Central Public Library in Bedford County, Virginia, a patron complained that she had observed a boy viewing what she believed were pornographic pictures on the Internet. This incident was the only one defendant discovered within Virginia and the only one in the 16 months in which the Bedford County public library system had offered unfiltered public access to the Internet. After the incident, the library merely installed privacy screens on its Internet terminals which, according to the librarian, "work great".
The only other evidence of problems arising from unfiltered Internet access is described by David Burt, defendant's expert, who was only able to find three libraries that allegedly had experienced such problems, one in Los Angeles County, another in Orange County, Florida, and one in Austin, Texas. There is no evidence in the record establishing that any other libraries have encountered problems; rather, Burt's own statements indicate that such problems are practically nonexistent. Significantly, defendant has not pointed to a single incident in which a library employee or patron has complained that material being accessed on the Internet was harassing or created a hostile environment. As a matter of law, we find this evidence insufficient to sustain defendant's burden of showing that the Policy is reasonably necessary. No reasonable trier of fact could conclude that three isolated incidents nationally, one very minor isolated incident in Virginia, no evidence whatsoever of problems in Loudoun County, and not a single employee complaint from anywhere in the country establish that the Policy is necessary to prevent sexual harassment or access to obscenity or child pornography.
C. Whether the Policy Is Narrowly Tailored to Achieve the Compelling Government Interests
Even if defendant could demonstrate that the Policy was reasonably necessary to further compelling state interests, it would still have to show that the Policy is narrowly tailored to achieve those interests. The parties disagree about several issues relating to whether the Policy is narrowly tailored: (1) whether less restrictive means are available; (2) whether the Policy is overinclusive; and (3) whether X-Stop, the filtering software used by defendant, is the least restrictive filtering software available.
1. Whether Less Restrictive Means Are Available
Defendant alleges that the Policy is constitutional because it is the least restrictive means available to achieve its interests. The only alternative to filtering, defendant contends, is to have librarians directly monitor what patrons view. Defendant asserts this system would be far more intrusive than using filtering software. Plaintiffs and intervenors respond that there are many less restrictive means available, including designing an acceptable use policy, using privacy screens, using filters that can be turned off for adult use, changing the location of Internet terminals, educating patrons on Internet use, placing time limits on use, and enforcing criminal laws when violations occur.
. . . .
We find that the Policy is not narrowly tailored because less restrictive means are available to further defendant's interests and, as in [Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989)], there is no evidence that defendant has tested any of these means over time. First, the installation of privacy screens is a much less restrictive alternative that would further defendant's interest in preventing the development of a sexually hostile environment. Second, there is undisputed evidence in the record that charging library staff with casual monitoring of Internet use is neither extremely intrusive nor a change from other library policies. Third, filtering software could be installed on only some Internet terminals and minors could be limited to using those terminals. Alternately, the library could install filtering software that could be turned off when an adult is using the terminal. While we find that all of these alternatives are less restrictive than the Policy, we do not find that any of them would necessarily be constitutional if implemented. That question is not before us.
2. Whether the Policy is Overinclusive
Defendant contends that the Policy is neither overinclusive nor under inclusive because it is the least restrictive means available. Defendant also assets that we should not focus on the specifics of what the Policy does and does not cover because that would detract from the broader issue of "whether a public library can or cannot filter obscene materials on its public Internet terminals and, if so, under what criteria and procedures." In other words, the defendant asks this Court to consider a hypothetical situation that is not before us. The federal courts, however, may not provide advisory opinions; we may rule only on the Policy before us. Defendant cannot save its Policy by asking the Court to decide hypothetical questions for which there is no case or controversy.
In examining the specific Policy before us, we find it overinclusive because, on its face, it limits the access of all patrons, adult and juvenile, to material deemed fit for juveniles. It is undisputed that the Policy requires that "[i]f the Library Director considers a particular website to violate . . . [the Virginia Harmful to Juveniles Statute], the website should be blocked under the policy for adult as well as juvenile patrons." It has long been a matter of settled law that restricting what adults may read to a level appropriate for minors is a violation of the free speech guaranteed by the First Amendment and the Due Process Clause of the Fourteenth Amendment.
At issue in [Reno v. ACLU , 117 S.Ct. 2329 (1997),] was a federal statute, the Communications Decency Act ("CDA"), which established a criminal penalty for providing on the Internet material deemed harmful to minors although not obscene with the knowledge that such material could be accessed by minors. The Supreme Court found that because there was no way for an Internet provider to block minors from accessing such material, this statute effectively prohibited such material from being displayed at all. Reno at 2347. The Court held that
[i]n order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.
Id. at 2346. Because we have found that less restrictive alternatives are available to defendant and that defendant has not sufficiently tried to employ any of them, the Policy's limitation of adult access to constitutionally protected materials cannot survive strict scrutiny.
3. Whether X-Stop Is the Least Restrictive Filtering Software
Defendant claims that X-Stop is the least restrictive filtering software currently available and, therefore, the Policy is narrowly tailored as applied. Our finding that the Policy is unconstitutional on its face makes this argument moot. A facially overbroad government policy may nevertheless be saved if a court is able to construe government actions under that policy narrowly along the lines of their implementation, if the policy's text or other sources of government intent demonstrate "a clear line" to draw. See Reno, 117 S.Ct. at 2350-51. We find no such clear line here. Defendant has asserted an unconditional right to filter the Internet access it provides to its patrons and there is no evidence in the record that it has applied the Policy in a less restrictive way than it is written. Therefore, our finding that the Policy is unconstitutional on its face makes any consideration of the operation of X-Stop moot.
V. Prior Restraint
Plaintiffs and intervenors allege that even if the Policy were to survive strict scrutiny analysis, the Court would have to find it unconstitutional under the doctrine of prior restraint because it provides neither sufficient standard to limit the discretion of the decisionmaker nor adequate procedural safeguards. Defendant responds that the Policy is not a prior restraint because it only prohibits viewing certain sites in Loudoun County public libraries, and not in the whole of Loudoun County.
Preventing prior restraints of speech is an essential component of the First Amendment's free speech guarantee.
. . . .
Defendant argues that prior restraint cases are limited to situations in which a government tries to restrict all speech within its jurisdiction. Because Loudoun County residents are still permitted to obtain unfiltered Internet access in their homes or offices, defendant asserts, this situation is distinguishable form those cases. We find no legal support for this argument. In Southeastern Promotions, a municipality had denied the use of a public facility for the production of the musical "Hair", which it deemed obscene. The Court found that "it does not matter . . . that the board's decision might not have had the effect of total suppression of the musical in the community. Denying use of the municipal facility under the circumstances present here constituted the prior restraint." 420 U.S. at 556.
It is undisputed that the Policy lacks any provision for prior judicial determinations before material is censored. We find that the Policy includes neither sufficient standards nor adequate procedural safeguards. As to the first issue, the defendant's discretion to censor is essentially unbounded. The Policy itself speaks only in the broadest terms about child pornography, obscenity, and material deemed harmful to juveniles and fails to include any guidelines whatsoever to help librarians determine what falls within these broad categories. There are no standards by which a reviewing authority can determine if the decisions made were appropriate.
The degree to which the Policy is completely lacking in standards is demonstrated by the defendant's willingness to entrust all preliminary blocking decisions--and, by default, the overwhelming majority of final decision--to a private vendor, Log-On Data Corp. Although the defendant argues that X-Stop is the best available filter, a defendant cannot avoid its constitutional obligation by contracting out its decisionmaking to a private entity. Such abdication of its obligation is made even worse by the undisputed facts here. Specifically, defendant concedes that it does not know the criteria by which Log-On Data makes its blocking decisions. It is also undisputed that Log-On Data does not base its blocking decisions on any legal definition of obscenity or even on the parameters of defendant's Policy. Thus, on this record, we find that the defendant has not satisfied the first prong of prior restraint analysis, establishing adequate standards.
In addition, the Policy also fails to include adequate procedural safeguards. The three minimum procedural safeguards required are (1) a specific brief time period of imposition before judicial review; (2) expeditious judicial review; and (3) the censor bearing the burden of proof. The Policy, even including the alleged protections of the unofficial 'unblocking policy', is inadequate in each of these respects.n22 First, the Policy itself contains no provision for administrative review, no time period in which any review must be completed, and no provision for judicial review. Under the unofficial 'unblocking policy', a library patron who finds herself blocked from an Internet site she believes contains protected speech is required to request in writing that the librarians unblock the specified site. If the librarian determines that the site does not fall within the Policy's prohibitions, he will unblock it, although there is no systematic way in which this done. There is no time period during which this review must occur and there is no provision for notifying the requesting patron if and when a site has been unblocked.
The second required procedural safeguard is expeditious judicial review after the administrative decision is made. There is no provision whatsoever in the Policy for judicial review of any blocks. This makes the question of who carries the burden of proof in any judicial review proceeding, the third required procedural safeguard, moot. Because the Policy has neither adequate standards nor adequate procedural safeguards, we find it to be an unconstitutional prior restraint.
. . . .
VII. Conclusion
Although defendant is under no obligation to provide Internet access to its patrons, it has chosen to do so and is therefore restricted by the First Amendment in the limitations it is allowed to place on patron access. Defendant has asserted a broad right to censor the expressive activity of the receipt and communication of information through the Internet with a Policy that (1) is not necessary to further any compelling government interest; (2) is not narrowly tailored; (3) restricts the access of adult patrons to protected material just because the material is unfit for minors; (4) provides inadequate standards for restricting access; and (5) provides inadequate procedural safeguards to ensure prompt judicial review. Such a policy offends the guarantee of free speech in the First Amendment and is, therefore, unconstitutional.
For these reasons, the intervenors' Motion to Substitute Parties will be GRANTED; the plaintiffs' and intervenors' motions for summary judgment will be GRANTED; and the defendant's Motion for Summary Judgment will be GRANTED as to the standing of John Ockerbloom d/b/a Banned Books On-Line and DENIED in all other respects. Defendant will be permanently enjoined from enforcing its Policy on Internet Sexual Harassment. An appropriate order will issue.
Footnotes
1 Although plaintiffs and intervenors have refused to admit that the Internet contains child pornography and obscene materials, defendant has provided unrebutted evidence strongly suggesting that such materials can be found there. For purposes of this opinion we will assume that such materials are accessible through the Internet.
16 We note, however, that the legal concept of a sexually hostile work environment has traditionally been limited to the employment context, and, more recently, the education context.
22 The defendant relies on the undisputed evidence that it has not denied any of the eleven unblocking requests it has received thus far to save the Policy. This is insufficient because, as we noted in our previous opinion, "forcing citizens to publicly petition the Government for access to" disfavored speech has a "severe chilling effect." Mainsteam Loudoun, 2 F.Supp. 2d at 797 (citing Lamont v. Postmaster General, 381 U.S. 301, 307 (1965)). At least one patron has stated that he failed to request access to a blocked site he believed was improperly blocked because he was "intimidated to have to go through that procedure."
Top of Page Chapter 04 Title Page Email Listserve