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

 

MAINSTREAM LOUDOUN,                      )
                                                                        )
            Plaintiff                                                )
                                                                        )
                    v.                                                  )          Case No. CA-97-2049-A
                                                                        )
BOARD OF TRUSTEES OF THE                )
LOUDOUN COUNTY LIBRARY,                )
                                                                         )
            Defendant.                                            )

MEMORANDUM OF POINTS AND AUTHORITIES OF
NATIONAL ORGANIZATION FOR WOMEN--DULLES
and DELEGATE RICHARD H. BLACK, et al.,
AS Amici Curiae IN SUPPORT OF DEFENDANT

INTRODUCTORY STATEMENT

Much constitutional hay already has been made in this case based on the fact that a new and wondrous medium--or vehicle--for speech, the Internet, is before the court. Rather than focusing on what the law requires--that is, a fairly ordinary application of First Amendment principles that grant the Government, acting in its proprietary capacity as a county librarian, leeway to take reasonable steps to preserve the purpose and intended use of its property--instead the nature of the Internet is held up as the dispositive issue in this case. Indeed, Plaintiff, quite frankly, invites this court to abandon the application of well-settled legal principles altogether and instead, at bottom, to base its constitutional ruling on Plaintiff's description of the technological parameters of the Internet. See, e.g., Complaint at &#para;&#para;27-45. This invitation must be declined, and on several grounds.

Plaintiff's theories place great weight on the notion that "[t]he Internet is a medium of speech entitled to full First Amendment protection." Id. at &#para;44; id. at &#para;27 ("the Internet is a unique and wholly new medium of . . . communication"). Fundamentally, Plaintiff argues that the nature of the Internet, rather than the nature of the Library Board's interest in prohibiting displays of pornography in its libraries, controls the constitutional viability of the Internet Sexual Harassment Policy and, for Plaintiff, wins the day. Nothing, of course, could be more anti-constitutional than a theory such as this that elevates technological form over legal substance and scientific innovation over principled legal examination.

For this bold new theory, Plaintiff relies heavily on the district court's descriptions of the Internet in ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), aff'd 117 S. Ct. 2329 (1997). Reno, however, most certainly does not stand for the proposition that the medium itself--that is, the structure, scope and economics of Internet access--is constitutionally meaningful. Nor does Reno teach that the nature of the Internet morphs online speech into a sort of constitutional superspeech, such that all restrictions on it are content-based and subject to strict scrutiny. Rather, the lesson of Reno is that speech is speech and the usual rules apply. Reno, 117 S. Ct. at 2344.

Plaintiff, by stark contrast, and in direct opposition to the Supreme Court's holding in Reno, asserts the newly minted constitutional theory that, however vast is the Internet, there--at all times, places and under all manner of circumstances--are the bounds of one's rights under the First Amendment. In other words, Plaintiff demands that this court find that--public library or not--First Amendment free speech guarantees are coextensive with the technological parameters of the Internet, not with the jurisprudential parameters of the Constitution. Exchanging the analytical framework of the Constitution for a mainframe computer, in the end, not only is a poor deal, but a theory the Supreme Court already has rejected wholly in the context of the last great technological innovation--cable television.

In Turner Broadcasting System, Inc. v. FCC, 512 U.S. 639 (1994), the Supreme Court addressed the precise issue of whether the technology of cable television somehow transformed speech into a new constitutional entity. The Court quickly held that, "[W]hatever relevance [the unique physical characteristics of cable transmission] may have in the evaluation of particular cable regulations, they do not require the alteration of settled principles of First Amendment jurisprudence." Id. at 639. This common sense principle applies with equal force to the Internet.

Neither the nature of the Internet--nor of the next great technological innovation to come along--in any way limits, controls or even informs the Library Board's well-settled constitutional prerogatives to "reserve the forum[--the public library--]for its intended purposes, communicative or otherwise." Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 46 (1983). Rather, as always, it is not any characteristic of the medium, but rather the nature of the forum, as well as the nature of the expression, that determines the analytical framework to be applied under the Constitution. When this constitutional, rather than technological, framework is applied to the Internet Sexual Harassment Policy, the Policy readily survives judicial review.



ARGUMENT

I. The Internet Sexual Harassment Policy is a content-neutral regulation that readily survives constitutional scrutiny.

There is, in this case, one critical point on which the parties and the court agree: that the Loudoun County public libraries may not be compelled to, and, indeed, affirmatively can refuse to provide pornography to library patrons. Thus, a detailed discussion of the scope of the Library Board's Internet Sexual Harassment Policy--which accomplishes exactly that--may, at first blush, seem superfluous.

Indeed, it is clear that the epicenter of Plaintiff's constitutional claims lies, not, strictly speaking, in the Policy itself, but rather in the means the Board has chosen to implement its policy, that is, filtering software. Complaint, e.g., at &#para;85. To evaluate that means, however, close analysis of the interests served by the Policy is essential. For this reason, it is important not to collapse the distinction between the scope of the Policy and the operation of the means chosen to implement the Policy.

Simply put, the Internet Sexual Harassment Policy does not regulate protected speech. Attachment. In fact, it is arguable whether the Policy regulates speech at all. See, e.g., National Endowment for the Arts v. Finely, 66 LW 4586 (1998). Rather, by terms, the Policy regulates conduct: it proscribes the display of pornography in the public library. Moreover, this conduct cannot, by any stretch, be styled as protected expression. Cf. United States v. O'Brien, 391 U.S. 367 (1968) (even core political speech--protesting the war in Vietnam--was not sufficient to insulate proscribed conduct--burning one's draft card--from sanction).

Even assuming in arguendo that the Policy does implicate speech cognizable under the First Amendment, clearly it does so only to the extent the means chosen to implement the Policy, filtering software, may incidentally burden speech based on the potential for inaccurate blocking.

Thus, the key inquiry regarding the Policy's constitutionality centers on the reasonableness of the Library Board's practical solution to the practical problems associated with publicly displayed, and publicly-funded access to, pornography. It is true there are no precedents precisely on point, but that fact, ultimately, is beside the point. See Procunier v. Martinez, 416 U.S. 396, 411-412 (1974) (in reviewing censorship of prisoner mail, the Court noted that although cases such as O'Brien, Tinker, and Healy did not "directly control[] the instant case . . . In broader terms, however, these precedents involved incidental restrictions on First Amendment liberties by governmental action in furtherance of legitimate and substantial state interests other than suppression of expression. In this sense these cases are generally analogous to our present inquiry.") (citations omitted) (emphasis added).

In short, with or without involvement of the Internet, a wide and well-settled body of caselaw pertains to the real, and, in fact, quite ordinary issues before the court--i.e., the appropriate application of constitutional tests for regulations that incidentally burden speech. Plaintiff's attempts to fashion a new constitutional test for "Internet speech"--grounded in the chimera that the Internet, as a "medium," implicitly creates a sort of superspeech under the Constitution, Complaint at &#para;44--fail.

While Plaintiff focuses on the form of the speech it claims is at issue in this case, the law turns on the substance of the Library Board's policy interests. Indeed, Plaintiff's entire theory rests on a pervasive confusion of the standards applicable to the government acting in its capacity as Sovereign with standards applicable to the government acting in its proprietary capacity as county librarian. E.g., Pl. Memo. at 12, 16). Plaintiff does not, and cannot, address the large body of caselaw which, beyond cavil, establishes that the Government has greater leeway under the First Amendment to protect its interests and advance its mission when, as here, it is acting in its proprietary capacity as county librarian.

This body of caselaw is ordered loosely according to the type of speech at issue, for example, commercial speech, speech in non-public forums (time, place, or manner restrictions), and--as seen in O'Brien, 391 U.S. 367--mixed speech and nonspeech. Nevertheless, the Court has not bound its analysis of First Amendment guarantees to strict categories based on the type of speech. Rather, regarding regulations that incidentally burden speech, the Court has distilled its jurisprudence to a single--though variously articulated--test. See Cincinnati v. Discovery Network, 507 U.S. 410, 441 (1993) (Rehnquist, C.J., dissenting) ("our test for reviewing the validity of 'time, place, or manner' restrictions on noncommercial speech . . . is 'substantially similar' to the Central Hudson analysis [of commercial speech]"); R.A.V. v. St. Paul, 505 U.S. 377, 389 (1992) (citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 (1984)) ("the O'Brien test [for mixed speech and nonspeech] differs little from the standard applied to time, place, or manner restrictions"). At bottom, this test turns on the government interests underlying the regulation and the scope--not the mere fact--of any incidental burden on speech.

In Kokinda, for example, the Court examined a Postal Service policy prohibiting solicitation on post office grounds, beginning with analysis of the forum. But the Court grounded its holding in the fact that "the Postal Service has never intimated that it intends to suppress the views of any 'disfavored or unpopular political advocacy group.' [Rather,] it is the inherent nature of solicitation itself, a content-neutral ground, that the Service justifiably relies upon when it concludes that solicitation is disruptive of its business." 497 U.S. at 736 (citation omitted) (emphasis added).

Likewise, under the Internet Sexual Harassment Policy, it is the inherent nature of the conduct itself--display of pornography in a public library--that is disruptive of the library's business and its employees' work environment. This excerpt from the online magazine Netizen is instructive:

Here's a situation, unfortunately not hypothetical, to be pondered by those who, like me, sometimes grow smug in our attitudes toward censorship and free speech and access to information. This is a real-life puzzle, complex and confounding, emailed to me by a real-life librarian named Dan who experienced it.

"Yesterday, I was walking across my department (the children's section) and some guy [sitting at an Internet terminal] has a huge picture of an erect penis on his screen. I asked him to turn it off, and he refused, saying he had a First Amendment right to look at it, and if I didn't like it, it was my problem. . . . We had a pedophile researching the other day." . . .

In recent months, I've been getting more and more messages from librarians like Dan. . . . Not long ago, librarians ordered the books they wanted, and thus could precisely control the materials they lent. Aside from kids sneaking peeks at bare breasts in National Geographic, librarians were far removed from most pornography worries.

Jon Katz, The Librarian's Dilemma, http://www.netizen.com/netizen/97/12/index3a.html.

The above article documents a type of conduct that would not be permitted even in a no-holds barred public forum, which the library certainly is not. Clearly, as Justice Blackmun pointed out, a public library, like the post office and military bases, is no Hyde Park. Lehman v. City of Shaker Heights, 418 U.S. 298, 304 (1974). Libraries are not traditional public forums, nor are they places dedicated to assembly, debate or other speech activity. Grayned v. City of Rockford, 408 U.S. 104, 116 (1972) (citing Brown v. Louisiana, 383 U.S. 131 (1966)). Therefore, the threshold question in determining the standard of review is whether the regulation is content-based or content-neutral.

This court, in its previous order, suggested the Internet Sexual Harassment Policy is content-based and, therefore, subject to strict scrutiny. That opinion was grounded in a finding that Defendant conceded the Policy was content-based. Mainstream Loudoun v. Bd. of Trustees, No. 97-2049-A (E.D. Va. Apr. 7, 1998) (memorandum opinion and order) at 17-18. With or without such concession, however, it is incumbent on the court to make its own review of the Policy. This is particularly true where, as here, the court indicated that the Library Board's justification for its Internet Sexual Harassment Policy--a critical element in determining whether the Policy is content-based or content-neutral--was not yet clear. Memo. and Order at 36. Indeed, the Supreme Court repeatedly has affirmed that "when deciding whether a speech restriction is content-based or content-neutral, '[t]he government's purpose is the controlling consideration.'" Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). In sum, to determine the appropriate standard of review, the court must first examine more closely the Board's justification for the Policy.

A. The Internet Sexual Harassment Policy is content-neutral.

In Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994), the Court observed that "[d]eciding whether a particular regulation is content-based or content-neutral is not always a simple task." Id. at 642. Nevertheless, the principal inquiry is clear: "whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys." Ward, 491 U.S. at 791.

Stated another way, the Court held that the "fundamental principle that underlies . . . concern about 'content-based' speech regulations [is] that 'government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views." Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986). Thus, content-neutral regulations are "those that 'are justified without reference to the content of the regulated speech.'" Id.

The Policy, as discussed above, proscribes public, publicly-funded, displays of pornography in the library. At most, then, the Policy can be described as "content-defined." See, e.g., R.A.V., 505 U.S. at 389. The fact that the policy proscribes displays of content-defined classes of speech--i.e., pornography--does not, however, prove the Policy is content-based (much less a content-based regulation of speech). Id. See note 2, ante.

On this point, the Court has explained that a restriction on speech is content-based if it is explained solely by reference to content. See, e.g., Ward, 491 U.S. at 791; Renton, 475 U.S. at 48 (quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 71, n. 34 (1976) (plurality opinion). If, on the other hand, the restriction is justified by legitimate government interests unrelated to the suppression of expression, the restriction is content-neutral. United States v. O'Brien, 391 U.S. 367, 377 (1968).

The terms and scope of the Policy make clear that the Policy is justified by the Board's good faith effort to further its legitimate and substantial interests in:

(1) preventing sexual harassment and the establishment of a hostile workplace for employees and patrons, including but not limited to violations within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. &#sect; 2000; Attach. at GENERAL, &#para;1. Cf. Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993) (Title VII is a permissible content-neutral regulation of conduct). The guidance developing in Title VII cases focuses, not only who (or what entities) may be liable under Title VII--e.g., Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) and Burlington Industries, Inc. v. Ellerth, 66 LW 4634 (1998)--but also on the employer's responsibilities to "exercise[] reasonable care to prevent and correct promptly any sexually harassing behavior." Ellerth, 66 LW at 4640.

The Library Board's responsibility on this point may extend, logically, even if not at law, to the activities of library patrons. If, for example, a patron directed pornographic displays at a librarian in order to abuse him or her on the basis of sex, or to unreasonably interfere with the librarian's work performance, to some degree the librarian is in the same situation as when abused by a co-worker with supervisory authority. Cf. Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998 (1998). That is, the librarian may have little recourse but to rely on the Library Board to take remedial (or prophylactic) action to stop the abuse. Ellerth, 66 LW at 4640; cf. Katz, The Librarian's Dilemma, ante. At the minimum, "[a]n employer is negligent, and therefore subject to liability under [Title VII], if it knew or should have known about sexual harassment [by a person over whom it could exercise authority or control] and failed to stop it." Id. at 4638; cf. also Gebser v. Lago Vista Independent School District, 66 LW 4501 (under Title IX, damages for student-teacher sexual harassment may lie against the school district if officials with authority to institute corrective measures on the district's behalf had actual notice of, and were deliberately indifferent, to the harassing conduct).

(2) avoiding situations where displays of pornography "may intimidate patrons or staff, denying them equal access to public facilities;" Attach. at GENERAL, &#para;1. See Kokinda, 497 U.S. at 736 (the likelihood of hostile reactions, that people would avoid post offices, and "the Postal Service's realistic concern with losing postal business because of the uncomfortable atmosphere created by aggressive solicitation" justified banning such speech); Waters v. Churchill, 511 U.S. 661, 680 (1994) ("[d]iscouraging people from coming to work for an department certainly qualifies as a disruption" that justified regulating speech); Second clerk quits over library policies, Medina (Ohio) Sun, Apr. 17, 1997;

(3) ensuring the library environment is not "transform[ed] . . . from one of reading and scholarship to one which invites unwelcome sexual advances and sexual harassment." Attach. at GENERAL, &#para;1. Cf., e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 582 (1991) (Souter, J. concurring) (the State has a "substantial interest in combating the secondary effects of adult entertainment establishments . . . [because they] 'encourag[e] prostitution, increas[e] sexual assaults, and attract[] other criminal activity.") (emphasis added); Renton, 475 U.S. at 48 (finding that a zoning ordinance on adult movie theaters "is designed to prevent crime, protect the city's retail trade, maintain property values, and generally 'protec[t] and preserv[e] the quality of life of [the city's] neighborhoods, commercial districts, and the quality of urban life,' not to suppress the expression of unpopular views.").

(4) foreclosing the possibility that pornographic Internet displays might be used to discriminate against persons on the basis of sex, Attach. at GENERAL, &#para;1. See Ellerth, 66 LW at 4638, 3640 (discussing the employer's responsibility to control the work environment to facilitate the goals of Title VII); cf., e.g., United States v. Edge Broadcasting, 509 U.S. 418, 431 (1993) (quoting Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 464 (1978) ("the State 'had a u interest in adopting and enforcing rules of conduct designed to protect the public.'").

(5) providing "patrons a secure environment against sexual harassment when using the Internet;" Attach. at INTERNET SERVICES PROVIDED, &#para;3b. See, e.g., Osborne v. Ohio, 495 U.S. 103, 126 n.7 & 148 (noting the Attorney General's Commission on Pornography found that adult as well as child pornography "is often used as part of a method of seducing child victims. A child who is reluctant to engage in sexual activity with an adult or to pose for sexually explicit photos can sometimes be convinced by viewing other children having 'fun' participating in the activity.").

Moreover, the Library Board was well within its constitutional authority to institute the Internet Sexual Harassment Policy prophylactically. In a similar context in Barnes, 501 U.S. 560 (1991), Justice Souter observed, "legislation seeking to combat the secondary effects of adult entertainment need not await localized proof of those effects . . .. [A] State is [not] required affirmatively to undertake to litigate this issue repeatedly in every case." Id. at 584 (Souter, J., concurring) (emphasis added); cf. Harris, 510 U.S. at 22 ("Title VII comes into play before the harassing conduct leads to a nervous breakdown"); Ellerth, 66 LW at 4640 (whether the employer had promulgated an antiharassment policy is one factor determining whether the employer has an affirmative defense against vicarious liability for Title VII violations). Plaintiff's repeated arguments to the contrary, Pl. Memo., e.g., at 5, are wholly without merit.

Plainly, the Internet Sexual Harassment Policy is not explained by reference to content or viewpoint. (Indeed, pornography is not a viewpoint.) See also General Media Communications, Inc. v. Cohen, 1997 U.S.App. LEXIS 33869, 1997 WL 732329 (2d. Cir. 1997) (lasciviousness is not a viewpoint).; cf. New York v. Ferber, 458 U.S. 747, 763 (1982) (proscriptions on child pornography raised no "question . . . of censoring a particular literary theme."); Barnes, 501 U.S. at 585 (Souter, J., concurring) (finding a statute banning nude dancing was "'unrelated to the suppression of free expression,'" [O'Brien,] 391 U.S., at 377, [because] on its face, the governmental interest in combating prostitution and other criminal activity is not at all inherently related to expression.").

Manifestly, the Library Board's purpose in promulgating the Internet Sexual Harassment Policy had nothing to do with suppressing expression, Kokinda, 497 U.S. at 736, with the Board's agreement or disagreement with, favor or disfavor of, any message, Ed. Assn. of Perry v. Perry Local Educators' Assn., 460 U.S. 37, 48 (1983), or with advancing one viewpoint over another, City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984). There is exactly no chance that what is barred (pornography) and not barred (everything else) by the Policy hinges on whether the Sovereign agrees with the speaker. Metromedia, Inc. v. San Diego, 453 U.S. 490, 555 (1981) (Stevens, J., dissenting in part). Nor does the Policy have any impact on public debate on any subject. Leathers v. Medlock, 499 U.S. 439 (1991). Indeed, it is not the Library Board that disfavors the regulated speech, but the law itself. See, e.g., Maryland v. Craig, 497 U.S. 836 (1990).

Most telling on the question of whether the Policy is content-based or content-neutral, it is plain the Library Board could have accomplished its policy goals by explicitly proscribing conduct, rather than styling the Policy in terms of "access" to "Internet services."

The Board, for example, could have stated the purposes it set out in the Policy's general provision, Attach. at GENERAL, &#para; 1, and then simply pronounced--without saying one word about the Internet--that library patrons were prohibited from displaying pornography while in the library. Surely this conduct regulation would not suddenly become a speech regulation--particularly an impermissible content-based regulation of speech--simply because a patron brought pornography into the library through the Internet, rather than in a briefcase or backpack, and the patron displayed it on a computer screen, rather than by leaving a magazine open on a table or posting an obscene "joke" on the library bulletin board.

Indeed, while complainants invite this court to treat the library as if it were a public forum in which Plaintiff has an unlimited right to receive speech and Intervenors have an unlimited right to provide it, the Court's holding in Perry is instructive. Applied to the instant facts, it is clear that "[i]t is difficult to conceive of any reason why this Court should treat a [teacher] letterbox [or a library computer screen] differently for First Amendment access purposes than it has in the past treated the military base in Greer . . ., the jail or prison in Adderley . . . or the advertising space made available in city rapid transit cars in Lehman." Perry, 460 U.S. at 55 (citations omitted); Lehman, 418 U.S. at 304 (Blackmun, J., concurring) (the library is no Hyde Park). The Court rejected a public forum analysis (and hence strict scrutiny) for teacher letterboxes and, as to library computer screens, this court should follow suit.

Moreover, Plaintiff does not deny, and this court agrees, that the Library Board, without constitutional moment, can do what it has done--that is, proscribe displays of pornography in the library. Memo and Order at 31. At bottom, Plaintiff simply quarrels with the means the Board has chosen to implement its important and substantial interests. See Complaint at, e.g., &#para;85.

It is patent that nothing about the terms of the Policy is explained by reference to the content of the regulated speech. Quite the opposite, the Library Board's Internet Sexual Harassment Policy, which prohibits patrons from displaying pornography while in the library, amply is justified by important and substantial government interests unrelated to the suppression of expression. Therefore, the Policy is content-neutral.

B. The Internet Sexual Harassment Policy is subject to intermediate scrutiny.

Since the Internet Sexual Harassment Policy is content-neutral, the Policy certainly is not subject to strict scrutiny. In fact, one of the great unifying themes of First Amendment jurisprudence is that when the Government is acting not in its capacity as Sovereign--for example, when it is acting as educator, postmaster, employer, park ranger, commander, warden and, we submit, librarian--the Government, in its proprietary capacity, has the prerogative under the Constitution to take reasonable steps to preserve the purpose and use of the place under its authority, even if that action implicates free speech guarantees. Plainly, "[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated." Perry, 460 U.S. at 46 (quoting United States Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. 114, 129-130 (1981)).

Indeed, unless there were further findings that the library constituted a traditional public forum or a place dedicated to assembly, debate and similar speech activity--findings that, on no less authority than Justice Blackmun writing in Lehman, 418 U.S. at 304, would break new constitutional ground indeed--the Policy would be "examined only for reasonableness." Kokinda, 497 U.S. at 720.

Here, however, the argument is made that the Policy incidentally burdens speech. The Library Board took reasonable steps to preserve the purpose and intended use of the Loudoun County libraries--which, however articulated, patently does not encompass public displays of pornography. To that end, the Board promulgated the Internet Sexual Harassment Policy. To implement that Policy, the Board chose the practical solution of installing filtering software on library computers. At least presently, filtering software may have the potential for some degree of inaccurate blocking. It is this potential for inaccurate blocking that Plaintiff alleges implicates the First Amendment.

Plaintiff, moreover, treats this mere potential for inaccurate blocking as if that fact, standing alone, is dispositive of this case. The argument, essentially, is that because some protected speech may be blocked by the library's use of filtering software, the First Amendment puts the Board to the Hobbsian choice of either seriously undermining its legitimate interests by taking less effective measures to preclude the display of pornography in the library, or refusing to provide library patrons with access to the literally millions and millions of bytes of information--on every conceivable subject, from every conceivable viewpoint--that would never be blocked by filtering software.

The First Amendment, plainly, is not so draconian. Plaintiff's theory simply misperceives the law. The First Amendment always has countenanced policies that incidentally burden speech, even core political speech, and, in constitutional terms, incidentally burdening speech is all the Internet Sexual Harassment Policy possibly might effect. When content-neutral policies incidentally burden speech, the Court reviews such policies under various articulations of intermediate scrutiny.

C. The Internet Sexual Harassment Policy amply fulfills the factors set out in United States v. O'Brien.

As set out above, the Supreme Court has developed lines of precedent that loosely correlate with three categories of speech--loosely, because the Court readily and seamlessly applies precedent across the categories. See, e.g., Edge Broadcasting Co., 509 U.S. at 430 (time, place and manner test applied to commercial speech); Turner Broadcasting, 512 U.S. at 662 (time, place and manner test and mixed speech and nonspeech test applied to commercial speech); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 (1984) (noting the mixed speech and nonspeech test was substantially similarly to the time, place and manner test); see also Procunier, 416 U.S. at 411-412.

Indeed, the Supreme Court repeatedly and explicitly has noted that the various tests applying intermediate scrutiny under the First Amendment are substantially similar. See, e.g., Discovery Network, 507 U.S. at 441 (Rehnquist, C.J., dissenting) and R.A.V, 505 U.S. at 386. An excellent example of this point in practice is Board of Trustees, State Univ. of N.Y. v. Fox, 492 U.S. 469 (1989). Fox involved commercial speech, thus the Court began its review by applying Central Hudson Gas & Elec. v. Public Serv. Comm'n, 447 U.S. 557 (1980). The Court, however, also applied O'Brien's mixed speech and nonspeech analysis and Ward's framework for reviewing time, place, and manner restrictions. Fox, 492 U.S. at 475-476.

With this understanding of the broad caselaw that applies, to the extent, if any, the Internet Sexual Harassment Policy implicates speech at all, it implicates mixed speech and nonspeech under the purview of United States v. O'Brien, 391 U.S. 367, 377 (1968). O'Brien, then, will be considered the appropriate starting point for analyzing the Policy's constitutionality. See, e.g., Barnes, 501 U.S. at 528 (Souter, J., concurring).

Under O'Brien, a regulation, such as the Internet Sexual Harassment Policy, that incidentally burdens speech is constitutionally permissible if the regulation--

(1) is within the constitutional power of the government;

(2) furthers an important or substantial government interest;

(3) is unrelated to the suppression of free expression; and,

(4) any incidental burden on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest.

391 U.S. at 377.

We already have addressed the third factor in detail and concluded the Policy is not related to the suppression of free expression. Rather, the Policy is explained by the Library Board's conclusion that pornographic displays would undermine and be antithetical to the purpose and intended use of the library. Specifically, as seen in a by-terms review of the Policy, the Board was deeply concerned about the detrimental secondary effects reasonably associated with public displays of pornography, including those effects that might constitute violations of--or, at the very least, seriously jeopardize the important goals of--Title VII provisions intended to protect individuals from sex discrimination and sexual harassment. O'Brien's three remaining factors will be discussed.

1. The Policy is within the constitutional power of the Library Board.

The Internet Sexual Harassment Policy is within the constitutional power of the Library Board, as required by the first O'Brien factor, on several grounds.

First, there can be no doubt that the government, through agencies such as the Library Board, has the power--and, in some instances, the affirmative duty--to regulate pornography, as well as its employees' work environment. See Ellerth, 66 LW at 4640; see also Ferber, 458 U.S. at 763 & 775 (O'Connor, J., concurring) (regulating pornography does not raise a "question . . . of censoring a particular literary theme . . . [nor is there an] attempt to suppress the communication of particular ideas."); cf. Osborne, 495 U.S. at 109 (the government permissibly may put its full force and authority into completely destroying the market for child pornography).

Secondly, it always is within the Government's limits of power to protect, as the Library Board has done here, "the integrity of the purposes to which it has dedicated the property." Kokinda, 497 U.S. at 739. The Supreme Court repeatedly has recognized that agencies, such as the Library Board, have room under the First Amendment to formulate policies "in light of the special characteristics of the . . . environment." Procunier, 416 U.S. at 409 (quoting Tinker, 393 U.S. at 506); Edge Broadcasting, 509 U.S. at 435. Indeed, it bears repeating that "the State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated." Perry, 460 U.S. at 46.

Thirdly, it clearly is within the constitutional power of the government to "selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternate program which seeks to deal with the problem another way. In doing so, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other." Rust v. Sullivan, 500 U.S. 173, 193 (1991); see also Webster v. Reproductive Health Services, 492 U.S. 490 (1989).

It is patent, therefore, that the Library Board may selectively support public access to non-pornographic materials on the Internet, instead of supporting an alternate program--e.g., unlimited or no access to the Internet--which seeks to deal with the problems associated with public display of pornography in another way. Rust, 500 U.S. at 193. Indeed, relying on Rust, the Court recently held in National Endowment for the Arts v. Finely, "'decency and respect' criteria [for government grants] do not silence speakers by expressly 'threaten[ing] censorship of ideas.'" Id., 66 LW at 4589. Here, similarly to the statute at issue in Finely, there is no "realistic danger that [the Internet Sexual Harassment Policy] will compromise First Amendment values." Id.

Simply put, it is inescapable that the Library Board "has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other." Rust, 500 U.S. at 193. In short, the Library Board has the constitutional prerogative to support, and only support, "program[s] . . . [and] activities it believes to be in the [library's] interest." Id.

A fourth basis for the Library Board's policymaking authority is its constitutional power to "avoid creating the appearance that the [Board] is supporting" activities it has determined would undermine important and substantial interests of the library, its patrons and employees. See, e.g., Rust, 500 U.S. at 188; Buckley v. Valeo, 424 U.S. 1, 27 (1976) ("Congress could legitimately conclude that the avoidance of the appearance of improper influence 'is also critical . . ..'"); see also Kokinda, 497 U.S. at 736 (the likelihood of hostile reactions, that people would avoid post offices, and "the Postal Service's realistic concern with losing postal business because of the uncomfortable atmosphere created by aggressive solicitation" justified banning such speech); Waters v. Churchill, 511 U.S. at 680 ("[d]iscouraging people from coming to work for an department certainly qualifies as a disruption" that justified regulating speech).

Clearly the Board reasonably could conclude that even the appearance that the library supports or facilitates pornographic displays would undermine and be antithetical to the library's purpose and intended use, including the Board's commitment to the protections safeguarded under Title VII. Cf. Harris, 510 U.S. at 22 ("a discriminatorily abusive work environment . . . can and often will . . . discourage employees from remaining on the job").

Finally, the constitutional authority of the Library Board to prohibit the display of pornography in Loudoun County public libraries is seen in the analogous power to zone. In Renton, for example, the Supreme Court examined a zoning law that prohibited locating adult motion picture theaters "within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, or park and within one mile of any school." Renton. 475 U.S. at 44. Relying on O'Brien and Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976), the Court held that "the Renton ordinance represents a valid governmental response to the 'admittedly serious problems' created by adult theaters.'" Renton, 475 U.S. at 54.

Like the Library Board, the Renton County zoning authority relied on the common sense knowledge and experience that pornography in public establishments is associated with detrimental secondary effects. See Renton, 475 U.S. at 49; Barnes, 501 U.S. at 584 (Souter, J., concurring). In short, it is well-settled that, under the Constitution, Loudoun County has authority to prohibit the sale of pornography--even to adults--in a shop next door to the library. Surely the Library Board has similar constitutional authority, in effect, to legislate the interior confines of its public libraries as "porn-free zones."

On these several bases it is clear the Internet Sexual Harassment Policy was well within the constitutional power of the Library Board to promulgate.

2. The Policy furthers important and substantial government interests.

As to the second O'Brien factor, there can be no dispute that avoiding displays of pornography in the library, precluding the secondary effects reasonably associated with public displays of pornography, and foreclosing the possibility that displays of Internet-obtained pornography would be used to create a hostile workplace--or otherwise to discriminate on the basis of sex--certainly are important and substantial government interests.

An overview of the Supreme Court's findings on government interests provides a helpful comparison. The Court has found, for example, that the government had important and substantial interests in "prevent[ing] crime, protect[ing] the city's retail trade, maintain[ing] property values, and generally 'protect[ing] and preserv[ing] the quality of [] neighborhoods, commercial districts, and the quality of urban life" by zoning restrictions on adult theaters; "promoting the health, safety, and welfare of its citizens by reducing their demand for gambling;" maintaining "efficient employment decision-making," even when that process punished protected speech; avoiding "hostile reactions [that would] cause people to avoid post offices;" taking steps to address a "realistic concern with losing postal business because of the uncomfortable atmosphere created by aggressive solicitation;" preventing "visual blight;" "maintaining [public] parks . . . in an attractive and intact condition;" "avoiding congestion and maintaining the orderly movement" of persons using a public forum; "limiting sound volume" in a city amphitheater; "promoting an educational rather than commercial atmosphere on [state] campuses, promoting safety and security, preventing commercial exploitation of students, and preserving residential tranquility;" preserving "fair and effective government" by restricting federal employees' rights to political association; and avoiding "the appearance of improper influence . . . [in] representative Government." In each of these cases, the Court went on to uphold restrictions that incidentally burdened speech.

Plainly, the interests underlying the Internet Sexual Harassment Policy compare favorably, if not, in some instances, surpass, those the Court already has found sufficient to justify an incidental burden on speech. That, however, is only the initial inquiry under the second O'Brien factor. This factor also requires that the Policy further the Board's substantial interests.

This brings the discussion to a review of the means chosen by the Board to implement its Policy--that is, filtering software. Plaintiff, in a variety of formulations, complains that the Board's choice of means falls so short of furthering the Board's important and substantial interests that the Internet Sexual Harassment Policy violates the Constitution.

a. The Policy is constitutional even if its operation may be over- and under-inclusive.

One alleged deficiency in the Board's choice of means, which Plaintiff claims creates constitutional infirmity in the Policy, is the potential for some degree of inaccurate blocking inherent in filtering software. In particular, Plaintiff alleges that the Internet Sexual Harassment Policy--in terms of its actual operation--is over- and under-inclusive in that filtering software may block some non-pornographic web sites and fail to block some pornographic web sites. Similar arguments were raised regarding the operation of the statute at issue in United States v. Edge Broadcasting Co., 509 U.S. 418, 426-435 (1993).

In Edge Broadcasting, a North Carolina radio station located near the Virginia border complained that a statute proscribing lottery ads in non-lottery states was unconstitutional because the law failed to further the Government's interests. Specifically, the radio station pointed to the fact that, while North Carolina was a non-lottery state, many North Carolina residents living near the state line received radio broadcasts from Virginia, including broadcast ads for the Virginia lottery. In determining whether the Government's chosen means--prohibiting lottery ads on stations located in non-lottery states--furthered the Government's important and substantial interests in supporting non-lottery States' antigambling policies, id. at 426-427, the Supreme Court held that "[i]t is readily apparent that this question cannot be answered by limiting the inquiry to whether the governmental interest is directly advanced as applied to a single person or entity." Id. at 427.

Applying the Court's reasoning in Edge Broadcasting to the instant case, the Court explained that "[e]ven if there were no advancement as applied . . . [to a particular web site]--there would remain the matter of the regulation's general application to others--in this case, to all other [web sites]. The court[] . . . thus ask[s] the wrong question" if the court limits its inquiry to the software's impact on individual web sites--such as those alleged by Plaintiff to be inaccurately unblocked--as opposed to reviewing the overall effect the software has on the amount of pornography that otherwise would be available for display in the public library. See id. at 427; see also Ward, 491 U.S. at 801 ("the validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government's interests in an individual case.").

On this point, again Edge Broadcasting is instructive. The Court held:

Nor do we require that the Government make progress on every front before it can make progress on any front. If there is an immediate connection between advertising and demand, and the federal regulation decreases advertising, it stands to reason that the policy of decreasing demand for gambling is correspondingly advanced. Accordingly, the Government may be said to advance its purpose by substantially reducing lottery advertising, even where it is not wholly eradicated.

 

Edge Broadcasting, 509 U.S. at 434.

Clearly, applying the above reasoning to the instant case, there is an immediate connection between Internet pornography and increased displays of pornography in the library. Since the Internet Sexual Harassment Policy's use of filtering software decreases the availability of Internet pornography, it stands to reason that the policy of decreasing the potential for displays of pornography in the library correspondingly is advanced. Accordingly, the Library Board advances its purpose by using filtering software to substantially reduce the availability of Internet pornography, even where such pornography is not wholly eradicated. Id.

In sum, as seen in Ward, it is clear that the Internet Sexual Harassment Policy "is valid so long as the [Library Board] could reasonably have determined that its interests overall would be served less effectively without the [use of filtering software] than with it." Ward, 491 U.S. at 801 (emphasis added). Thus, regardless that the operation of the software may be over- or under-inclusive, both the Policy and the means chosen to implement the Policy further the Library Board's important and substantial interests. This amply meets the second factor of O'Brien.

Plaintiff, however, counter-argues that, even if use of filtering software furthers the Board's interests in proscribing displays of pornography in the library, the Policy still is constitutionally infirm because: the Board has not adopted the least restrictive means since, in Plaintiff's view, better alternatives to the use of filtering software exist; it is impermissible for the Board to designate a software corporation as its agent for implementing the Policy; and the First Amendment requires an "all-or-nothing" approach to Internet access.

b. The Policy is not subject to a least restrictive means test.

Plaintiff's overarching complaint regarding the Library Board's use of filtering software boils down to the argument that the Internet Sexual Harassment Policy is unconstitutional because the Board did not attempt to further its underlying interests by the least restrictive means.

Plaintiff complains, for example, that the Board violates library patrons' privacy by not purchasing privacy screens instead of filtering software and by placing computers where their use is more easily overseen by the librarians; that the Board relies on criminal trespass ordinances; and, finally, that the Board expends resources to filter the Internet while Plaintiff contends it would be cheaper to permit unlimited access.

First, Plaintiff posits that the Board should have relied on privacy screens (which theoretically prevent anyone but the computer user from viewing the screen) and a separate, out-of-the-way place for computer use as means to prevent the display of pornography in the library, instead of choosing to use filtering software. Plaintiff's solution, however, is no solution at all. As a practical matter, it does nothing to address the myriad ways pornography could pervade the library and be exposed to other patrons, the librarians, staff members and building personnel. See, e.g., Katz, ante. And certainly it exacerbates, rather than resolves, the Board's common sense concerns with the detrimental "secondary effects" reasonably associated with public displays of pornography. Cf. Barnes, 501 U.S. at 584 (Souter, J., concurring) ("legislation seeking to combat the secondary effects of adult entertainment need not await localized proof of those effects.").

Next, Plaintiff objects that the Board relies on criminal trespass ordinances, albeit as a last resort, to sanction patrons who display pornography in the library. Again, Plaintiff fundamentally objects to the Board's chosen means to enforce its Policy, namely, trespass laws. Cf. Library calls police about man viewing nude boys on Internet, Akron (Ohio) Beacon Journal, July 11, 1997. This objection, however, does not rise to the level of a constitutional violation. See, e.g., Board of Trustees, State Univ. of N.Y. v. Fox, 492 U.S. 469 (1989) (upholding a SUNY policy that directly regulated commercial speech and activities in student dormitories by, among other means, charging violators with trespass, soliciting without a permit, and loitering.) Plainly, the Board's action to enforce its Policy presents no constitutional impediment to its implementation.

Finally, Plaintiff claims that the means chosen by the Library Board to implement its Internet Sexual Harassment Policy do not further that Policy because the use of filtering software is not supported by a resource-related rationale. In other words, Plaintiff complains that the Board expends resources to filter the Internet when, according to Plaintiff, it would be cheaper to permit unlimited access.

As a first matter, Plaintiff's factual assumptions regarding resources consumed by providing Internet access are not sound. It is too simplistic to view the cost to the library of filtering versus not filtering the Internet in terms of X-Stop's purchase price. For example, the Bellevue, Ohio, library did not install filtering software, but it did end up hiring "uniformed security staff member[s] [to] check[] over patrons' shoulders for Web smut. . . . Five to six people . . . have been hired part-time to . . . maintain proper behavior, including ensuring that obscene material stays off the library's monitors." Library back on line, Sandusky (Ohio) Register, Mar. 18, 1997.

Other resource issues are raised by the fact that "[a]t public libraries across the nation, Internet computer terminals intended for research are . . . being hogged by patrons searching for another kind of education. In the Los Angeles Central Library, for instance, the machines are regularly steered to online photos of naked women, digitized videos of sex acts and ribald chat-room discussions." http://augustachronicle.com (Public libraries debating how to handle access to net porn, Los Angeles Times), July 3, 1997. See also Censoring web sites, www.nytimes.com, Mar. 9, 1997 ("'A number of people were coming into the library and accessing . . . hard-core porn.' . . . Patrons, as well as employees, could glimpse the sites when they passed by the terminals. . . . In addition, patrons who wanted to use computers for more conventional library research had difficulty finding an available terminal."); PBS Online NewsHour, www.pbs.org, Aug. 7, 1997 ("As soon as we came up live on the Internet, we began to observe a number of people coming in the library and standing at our computers for hours on end, viewing . . . hard core pornography.").

Manifestly, the less effectively pornography is filtered, see Ward, 491 U.S. at 798, the greater the potential pornographic displays will impinge not only librarians' and patrons' time and work environment, but also on the availability of the research and learning services that are integral to the library's intended purpose and use in the first place. Quite plainly, there do exist resource rationales that fully support the use of filtering software. Indeed, even Plaintiff's alternatives--privacy screens, separate, out-of-the-way computer viewing areas, the provisions for patrons to print documents in "private"--cost something.

Finally, however, the issue is not how much a particular policy choice "costs," even if that cost could be determined comprehensively. Cost considerations, such as shelf space and other expenses, for example, might be relevant to the policy options available to the Library Board, but it is hard to see how they help Plaintiff's cause much. Even if Plaintiff's suggested alternative policies might be imposed on the Library Board free-of-additional-charge, that fact would not make those suggestions extra worthy under the Constitution. Indeed, apart from normal citizen oversight, and absent specific statutory authority or perhaps some whistleblower claim, it is hard to see how library patrons ever could claim a constitutional prerogative to second-guess the spending decisions of the Library Board. See Finely, 66 LW at 4591 ("Congress has wide latitude to set spending priorities.").

Each of these arguments fails ultimately, however, because it merely asserts variations on Plaintiff's general theme that the Library Board must pursue its policy interests by the least restrictive means. The Supreme Court, however, emphatically has held, over and over again, that no least restrictive means test inheres in its First Amendment jurisprudence on regulations that incidentally burden speech. The Court never has "insisted that there be no conceivable alternative, but only that the regulation not 'burden substantially more speech than is necessary to further the government's legitimate interests.'" Fox, 492 U.S. at 477 (quoting Ward, 491 U.S. at 799). Further, even a requirement that a particular policy be narrowly tailored "is satisfied 'so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." Ward, 491 U.S. at 798.

As already demonstrated, the Internet Sexual Harassment Policy, and the Library Board's chosen means, "promote[] a substantial government interest." Id. That the use of filtering software promotes the Board's interest more effectively than would be achieved absent the software is beyond cavil. And certainly the Library Board is entitled to conclude that it would not be more efficient--and, moreover might constructively alter the terms and conditions of library staff's employment, see, e.g., Ellerth, 66 LW at 4636--to require librarians to deal with displays of pornography on a case-by-case basis, rather than for the Board to take steps to avoid those incidents in the first place. Cf. Barnes, 501 U.S. at 584 (Souter, J., concurring) ("legislation seeking to combat the secondary effects of adult entertainment need not await localized proof of those effects.").

Finally, it is instructive that, in rejecting application of a least restrictive means test under intermediate scrutiny, the Supreme Court went on to observe in Ward that "the Court of Appeals erred in sifting through all the available or imagined alternative means of" furthering the government's interest in a particular regulation. Ward, 491 U.S. at 797 (emphasis added). "Instead," the Court held, "our cases quite clearly hold that restrictions [that incidentally burden] protected speech are not invalid 'simply because there is some imaginable alternative that might be less burdensome on speech.'" Id. (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)).

Indeed, in another context, the Court uly admonished that, having established an appropriate nexus between a regulation and substantial government interests, government officials are not required to "set up and shoot down every conceivable alternative method of accommodating [a] constitutional complaint." O'Lone, 482 U.S. at 350 (quoting Turner v. Safley, 482 U.S. 78, 90-91 (1978)). Nor, quite plainly, should this court engage such an enterprise.

In sum, Plaintiff's theory that the Policy must be subjected to a least restrictive means test fails. The Library Board has no constitutional imperative to do more than it has done under the Internet Sexual Harassment Policy: that is, create a legislative fit between its interests and its chosen means "that is not necessarily perfect, but reasonable." Fox, 492 U.S. at 480.

c. The Library Board constitutionally may designate a software corporation, instead of librarians, as its agent to implement the Policy.

Plaintiff also argues that, even if use of filtering software furthers the Library Board's interests in proscribing displays of pornography in the library, the Policy still is constitutionally infirm because it is impermissible for the Board to designate a software corporation, rather than librarians, as its agent for implementing the Internet Sexual Harassment Policy. Plaintiff argues that corporate employees apply "secret" and "proprietary" criteria. See Complaint &#para;&#para;92-95, 128-29. Therefore, Plaintiff claims, the use of filtering software constitutes an unconstitutional delegation of the authority to make collection decisions usually made by librarians.

Upon close review, it is not too u to say that this theory simply has no footing in reality. The factual assumption underlying Plaintiff's theory is that librarians, and only librarians, understand the Constitution, correctly assess and faithfully implement community standards, recognize obscenity "when [they] see it," Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring), and, in fact, arbitrate what materials end up inside the library. Therefore, Plaintiff claims, no one but librarians have the necessary constitutional credentials to make library acquisition decisions. With all due respect to library professionals, nevertheless it must be said that nothing could be farther from the truth.

The fact is, as a practical matter and despite professional protestations to the contrary, in some sense librarians themselves make acquisition decisions based on "secret" and "proprietary" criteria. Cf. Complaint &#para;&#para;95, 128-29. T