Judge Sets Highest Legal Hurdle For Using Blocking Software in Libraries

PRIVACY Forum Digest      Sunday, 19 April 1998      Volume 07 : Issue 07

            Moderated by Lauren Weinstein (lauren@vortex.com)         
              Vortex Technology, Woodland Hills, CA, U.S.A.
                         http://www.vortex.com 

                       ===== PRIVACY FORUM =====              


                ------------------------------------

        Judge Sets Highest Legal Hurdle
        For Using Blocking Software in Libraries

FOR IMMEDIATE RELEASE
Tuesday, April 7, 1998

ALEXANDRIA, VA -- In the first major ruling on the use of Internet
blocking software in libraries, a federal district judge today
forcefully rejected a government motion to dismiss a lawsuit challenging
the use of such software in public libraries in Loudoun County,
Virginia.

The American Civil Liberties Union and the ACLU of Virginia, which
represent a diverse group of eight Internet speakers seeking to reach
library patrons, hailed the ruling as one of the strongest ever defenses
of online free speech.

"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 attorney who appeared before the court.

"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."

In a 36-page decision issued earlier today, Judge Leonie M. Brinkema of
the U.S. District Court for the Eastern District of Virginia said 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."

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, 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 today also rejected the notion that the use of blocking
software can be considered analogous to a librarian 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."

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

Beeson also said that the ruling should serve as a strong deterrent to
recent efforts in Congress to mandate the use of blocking software in
public schools and libraries.

In a unanimous voice vote last month, the Senate Commerce Committee
passed the Internet School Filtering Act, a bill that requires all
public libraries and schools that receive federal funds for Internet
access to use blocking software. Urging against the policy, the ACLU
said in a letter to the Committee that "the government may not condition
federal funding on unconstitutional requirements," emphasizing that
"parents and teachers, not the government, should provide minors with
guidance about accessing the Internet."

In the Loudoun case, the national ACLU and the ACLU of Virginia
intervened in the lawsuit on behalf of a diverse group of speakers
outside of the county -- and even outside the United States -- who want
to reach their intended worldwide audience, including library patrons in
Loudoun County.

The ACLU's plaintiffs are:

-- The Safer Sex Page, created by John Troyer.
-- Banned Books Online, created by John Ockerbloom.
-- American Association of University Women Maryland (AAUW Maryland).
-- Rob Morse, an award-winning columnist for the San Francisco Examiner.
-- Books for Gay and Lesbian Teens Youth Page, created by 18-year-old
Jeremy Myers.
-- Sergio Arau, the popular Mexican artist and rock singer known as "El
Padrino."
-- Renaissance Transgender Association, a group serving the
transgendered community.
-- The Ethical Spectacle, created by Jonathan Wallace.

In its complaint, the ACLU said that the library's Internet policy
purports to block access to materials that are "pornographic" or
"harmful to juveniles." But the ACLU's complaint charges that by using
blocking software to implement the policy, the library board is in fact
"removing books from the shelves" of the Internet with value to both
adults and minors in violation of the Constitution.

In objecting to the block on their clients' speech, the ACLU's complaint
noted that websites offering opposing views are not blocked. "For
example, Defendants do not block sites opposing homosexuality and
transgender behavior, opposing employment by women outside the home,
favoring Internet censorship, and promoting abstinence rather than safer
sex practices."

Representing the ACLU's clients are national ACLU lawyers Ann Beeson,
Chris Hansen and Marjorie Heins, and Mary Bauer, Legal Director of the
ACLU of Virginia.

        Complete information on the intervention, including the ACLU's 
complaint, links to plaintiffs' web pages, and related cyber-law cases,
can be found on the ACLU Freedom Network at 
http://www.aclu.org/issues/cyber/hmcl.html.

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