Mainstream Loudoun v. Bd. of Trustees of Loudoun, Civ.A. 97-2049-A.

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Citation24 F.Supp.2d 552
Decision Date23 November 1998
Docket NumberNo. Civ.A. 97-2049-A.,Civ.A. 97-2049-A.
24 F.Supp.2d 552
MAINSTREAM LOUDOUN, et al., Plaintiffs,
No. Civ.A. 97-2049-A.
United States District Court, E.D. Virginia, Alexandria Division.
November 23, 1998.

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Robert Corn-Revere, Ronald J. Wiltsie, Mary Ellen Callahan, Hogan & Hartson, L.L.P., Washington, DC, Elliot M. Mincberg, Lawrence S. Ottinger, People for the American

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Way Foundation, Washington, DC, for plaintiff.

Kenneth C. Bass, III, Damon W.D. Wright, Venable, Baetjer and Howard, LLP, McLean, VA, for defendant.

Richard Ferris, American Civil Liberties Union of Virginia, Richmond, VA, Ann Beeson, Christopher A. Hansen, American Civil Liberties Union Foundation, New York City, NY, for plaintiff-intervenors.


BRINKEMA, District Judge.


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

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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 in their favor. Intervenors also ask the Court to permit them to substitute for three of their parties.3


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

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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 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. Rivera-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,...

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