UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
MAINSTREAM LOUDOUN, et al. )
)
Plaintiffs )
v. ) Case No. CA-97-2049-A
)
BOARD OF TRUSTEES OF THE )
LOUDOUN COUNTY LIBRARY, et al. )
)
Defendants. )
DEFENDANT’S ANSWER TO INTERVENORS’ COMPLAINTCOMES NOW Defendant Board of Trustees of the Loudoun County Library and as and for its Answer to the Complaint states as follows:
ANSWER
1. In response to the allegations of paragraph 1, Defendant states that the paragraph sets forth the Intervenor-Plaintiffs theory of the case and as such does not require an answer.
2. In response to the allegations of paragraph 2, Defendant admits that the Loudoun County Library is a public library in Loudoun County, Virginia, that provides its patrons access to a wide range of books and other information resources through funding allocated to the Defendant from the Loudoun County Board of Supervisors. Defendant further admits that it presently provides patrons access to the Internet. All other allegations of paragraph 2 are denied.
3. In response to the allegations of paragraph 3, Defendant denies knowledge or information concerning the Intervenor Plaintiffs sufficient to form a belief as the accuracy of the allegations.
4. In response to the allegations of paragraph 4, Defendant admits that the Policy was adopted on October 20, 1997, and refers to the Policy itself for the terms thereof. Defendant denies the legal conclusions in paragraph 4 and denies that it is, in effect, “removing books from bookshelves.”
5. In response to the allegations of paragraphs 5 and 6, Defendant states that after a diligent search of the available filtering software, the Director of Library Services advised Defendant that the X-Stop Library Edition software was the software best suited to implement the Policy. Defendant denies that the selection of sites to be filtered is under the control of an outside computer software vendor and states that the selection of sites to be filtered rests ultimately with Library personnel. Defendant further states that the procedures it has adopted for modifying the X-Stop software as furnished by the vendor “fix” the software to accomplish, to the extent technically possible, the ultimate goal of the Policy which is to preclude access to materials on the Internet that are not constitutionally protected.
6. Defendant admits the allegations of paragraph 7 except the last clause beginning “which severely”. The allegation in that clause is denied.
7. In response to the allegations of paragraphs 8 through 10, Defendant states that in the absence of specific Uniform Resource Locators (“URLs”) it lacks sufficient information to form a belief as to whether access to a specific Website is or is not filtered. Answering further, Defendant states that it is not knowingly fltering any Website the contents of which are protected by the First Amendment. Answering further Defendant states that it permits access to Websites that promote safer sex practices, that support gay and lesbian youth and transgendered persons, that promote career opportunities for women, that oppose censorship of the Internet, that provide access to previously banned books, that oppose homosexuality and transgender behavior, that oppose employment by women outside the home, that favor Internet censorship and that promote abstinence rather than safer sex practices, assuming that there are sites available on the Internet that fir in those categories, as long as a particular site does not also publish material that is within the categories to be filtered under the Policy.
8. Defendant admits the jurisdictional allegations of paragraphs 11 through 14, but denies that the Complaint asserts a cause of action that arises under the Constitution and laws of the United States.
9. In response to the allegations of paragraphs 15 and 16, Defendant refers to and incorporates its answers to the paragraphs cited in those paragraphs.
10. In response to the allegations of paragraphs 17 through 24, Defendant lacks knowledge or information sufficient to form a belief as to the accuracy of the allegations regarding World Wide Web publications since the paragraphs do not contain URLs. Answering further, Defendant lacks knowledge or information sufficient to form a belief as to the allegations regarding the individuals mentioned in those paragraphs. Defendant accordingly denies the allegations of those paragraphs.
11. In response to the allegations of paragraph 25, Defendant admits that is it a governmental entity responsible for oversight of the Loudoun County Public Library and that it adopted the Policy. All remaining allegations need not be answered in light of this Court’s order of April 7, 1998, dismissing the individual defendants and the agreement of counsel for the Intervenor-Plaintiffs that that order applies equally to the status of the individual defendants named in this Complaint.
12. In response to the allegations of paragraphs 26 through 44, Defendant states that the Internet is an international network of interconnected computers, that the content on the Internet includes substantial amounts of material that is obscene, constitutes child pornography or material deemed harmful to minors, all of which is not protected by the First Amendment, that the World Wide Web enables users of individual computers connected to the Internet to request and, if permitted, obtain information from other computers connected to the Internet, that the content on the Web is constantly changing, that the “publishers” of information on the Internet include government agencies, educational institutions, commercial entities, advocacy groups and individuals, among others, that Web “browsers” are used to request and, if permitted, receive specific documents from other computers using a document-specific URL, that many Web documents contains “links” to other Web documents, that so-called “search engines” enable persons connected to the Internet to obtain the URLs for specific documents in a manner functionally equivalent to the use of the Inter Library Loan System or a card catalogue, that sexually explicit material that is not outside the protection of the First Amendment is on the Internet, that the Internet provides information on topics that might be considered offensive or harmful by some, and that the Internet provides information on topics that some may consider sensitive or personal. With respect to any reference to the Supreme Court decision in ACLU v. Reno, Defendant refers to the published opinion for the contents thereof. All remaining allegations of those paragraphs are denied.
13. In response to the allegations of paragraphs 45 through 52, Defendant states that the practices of public libraries with respect to access to the Internet are varied and are continually changing. Defendant lacks knowledge or information sufficient to form a belief as to the accuracy of the numerous conclusions of fact stated in these paragraphs without supporting references and with respect to any specific documents that are mentioned, refers to those documents for an accurate statement of the contents thereof. Defendant accordingly denies all factual allegations of these paragraphs not specifically admitted.
14. In response to the allegations of paragraphs 53 through 59, Defendant states that there exists software designed to filter access to Internet materials, that a variety of technical means are used to accomplish that result, that some filtering software uses a pre-defined list of URLs, that some filtering software attempts to filter on the basis of content, and that some vendors of filtering software treat their filtering technology as a proprietary trade secret. the remaining allegations of these paragraphs are too vague and indefinite to permit Defendant to form a belief as to the accuracy of the statements and the remaining statements are therefore denied.
15. In response to the allegations of paragraphs 60 through 69, Defendant states admits the allegations of paragraphs 60 and 61, states that it did hold a meeting on October 20, 1997, at which the Policy was adopted, and refers to the Policy and the official minutes of that meeting as its answer to all remaining allegations of those paragraphs except that defendant specifically denies that the police will be called to remove patrons who violate the Policy and do not leave voluntarily.
16. In response to the allegations of paragraphs 70 through 80, Defendant states that
a) The Library Director, after a thorough and diligent search, recommended that the Board purchase and install the Library Edition of X-Stop software since it was the best available software to implement the Policy;
b) Defendant does not employ any form of search engine filtering software. All library patrons are able to use the same unfiltered search engines that are available to any other user of the Internet;
as to all remaining allegations Defendant lacks knowledge or information sufficient to form a belief and therefore denies those allegations. To the extent that any allegation refers to a published document, Defendant refers to that document for an accurate statement of the terms thereof.
17. In response to the allegations of paragraphs 81 through 160, Defendant states that in the absence of specific URLs it is not possible to answer the allegations. Answering further, Defendant states that if these allegations refer to the URLs that have been published on the Website maintained by counsel for the Intervenor-Plaintiffs, those URLs, to the extent that the URLs “point” to operating Websites, are not filtered by the Loudoun County Library and library patrons can fully “browse” the sites maintained by the Intervenor-Plaintiffs. Defendants deny that any of the sites maintained by the Intervenor-Plaintiffs have been knowingly filtered by the Defendant. Defendant further states that any inadvertent filtering of those sites has been promptly eliminated. As long as the Intervenor-Plaintiffs do not publish material that comes within the categories of information in the Policy, access to their Websites will not be filtered by the Defendant. As to all remaining allegations of those paragraphs, Defendant lacks knowledge or information sufficient to form a belief and therefore denies the allegations.
18. To the extent not otherwise answered, all allegations of the Complaint that are not specifically admitted are denied.
AFFIRMATIVE DEFENSES
1. The Complaint fails to state a claim on which relief may be granted.
2. Defendant is entitled to the absolute immunity provided in 47 U.S.C. &#sect; 230.
3. Defendant is entitled to absolute immunity under the doctrine of legislative immunity.
4. Plaintiffs lack standing to pursue this litigation.
5. Assuming, without admitting, that the First Amendment applies to this matter, the appropriate standard is not “strict scrutiny,” but minimal scrutiny and the Policy adopted and implemented by the Defendant is a reasonable and the least restrictive means of accomplishing a lawful end, prevention of the interstate transmission of obscene materials, child pornography and material harmful to minors.
WHEREFORE, having fully answered, Defendant prays that the Complaint be dismissed and Defendants awarded their costs and attorney’s fees to the extent authorized by law.
Respectfully submitted,
BOARD OF TRUSTEES OF THE LOUDOUN
COUNTY LIBRARY.
By:
Kenneth C. Bass, III (VSB #1021)
VENABLE, BAETJER AND
HOWARD, LLP
2010 Corporate Ridge, Suite 400
McLean, Virginia 22012
(703) 760-1600
Counsel for Defendants
April 20, 1998