February 18, 1998

Response to Opposition to Motion to Dismiss

15 min

Alexandria Division



Plaintiffs )

v. ) Case No. CA-97-2049-A




Defendants. )


The Defendants, by and through counsel, submit this response to discuss certain aspects of the Plaintiffs’ Opposition to the Motion to Dismiss for Failure to State a Claim. Counsel will address other aspects at the February 20 hearing.

I. Plaintiffs misread Pico and other First Amendment decisions in contending that this case must proceed to trial

The Plaintiffs seriously misread the Supreme Court decision in Board of Education v. Pico, 457 U.S. 853 (1982) when they argue that “[t]he unmistakable holding of Pico is that summary judgment cannot be granted in the government’s favor for a case in this posture.” Plaintiffs’ Opp. at 13 Only one of the Justices in Pico (Justice White) believed that the novelty of that case required a trial before the applicable law could be pronounced. Each of the eight remaining Justices was fully prepared to decide the applicable law in the absence of a trial. Thus Justice Brennan and three others decided – on the merits – that the First Amendment did apply to the library decision at issue in that case. The four Justices who joined the opinion authored by Chief Justice Burger also reached the merits, concluding that the First Amendment did not limit the decision on which materials the library should retain.

The Plaintiffs would have this Court treat Pico as some talismanic rule requiring denial of the Motion to Dismiss, regardless of the merits of Defendants’ arguments, simply because the Complaint alleges a First Amendment violation. That simplistic argument misconstrues entirely the decision on the propriety of summary judgment in Pico. The judgment in that case did not hinge on the mere fact that a First Amendment claim had been pled, but on the determination of the First Amendment law that was applicable and whether there were any facts that, if proven, would warrant relief. Four Justices said, “Yes, the First Amendment applies.” Four said, “No, it does not” and one said “I’ll decide later.” The lesson of that case, for purposes of deciding this Motion is that this Court needs to address and decide the significant and substantial First Amendment issues raised by the Motion to Dismiss and then to decide, in light of its conclusions, whether the Motion to Dismiss should be granted.

Plaintiffs’ misread Pico in other significant ways. They mistakenly state that “the [Pico] decision invalidated the board’s censorial policy.” Plaintiffs’ Opp. at 10.1/ There was no such holding and the case was remanded to determine whether the library’s decision rested on a permissible or impermissible ground. 2/

Plaintiffs also misread other First Amendment precedent they invoke. Citing Butler v. Michigan, 352 U.S. 380, 383 (1957), Plaintiffs contend that “[f]or more than four decades” it has been settled that “the government may not reduce the adult population . . . to reading what is fit for children.” Plaintiffs’ Opp. at 5. Neither that case nor any other decision dealing with the First Amendment rights of adults as compared to children is relevant here. Butler and other cases like it involve government prohibitions on speech, attempts to prevent – absolutely – certain speech from being uttered. This case involves no such censorship. Unlike the issues presented in Reno v. ACLU, ___ U.S. ___, 117 S.Ct. 2329 (1997)3/ , this litigation involves the ability of a library to remove itself from the chain of distribution of certain information, not a government effort to prevent that distribution in its entirety. The Loudoun County Library Internet Policy does not prohibit the Plaintiffs – or anyone else – whether an adult or a juvenile – from reading anything that is on the Internet. All the Policy does is to preclude use of Library terminals for the reception of materials deemed inconsistent with the Policy.
The Plaintiffs have not articulated a plain and consistent First Amendment theory of their case. They substitute rhetoric for reasoning. They substitute polemics for precedent. They acknowledge that they “supported an optional filtering policy in the library” Plaintiffs’ Opp. at 8. However, they fail to explain the neutral First Amendment analysis that would have permitted installation of their preferred filtering software, but prohibits use of the software installed in Loudoun.4/ The repeated invocation of the language of constitutional rights in the Complaint and now in the Opposition is not a substitute for reasoned analysis or application of precedent.

II. Plaintiffs’ discussion of Section 230 of the CDA confuses two distinctly different provisions of that Section

Plaintiffs implicitly acknowledge that section 230(c)(2)(A) of the Communications Decency Act, 47 U.S.C. &#sect; 230(c)(2(A) applies to the actions challenged in the Complaint. They do, however, dispute the effect of that law. Despite the unambiguous language statement that no library “shall be held liable on account of . . . any action voluntarily undertaken in good faith to restrict access to or availability of material that the [library] . . . considers to be . . . objectionable, whether or not such material is constitutionally protected," Plaintiffs contend that this suit may proceed.5/ That argument is wrong.
Plaintiffs apparently confuse several of the distinct provisions in Section 230. They say that when Congress “adopted Section 230, [t]he purpose of the section was to immunize online service providers from tort liability for content that they did not produce, such as in a defamation claim.” Plaintiffs’ Opp. at 18. That argument confuses the “content provider” immunity of &#sect; 230(c)(1) with the “filtering provider” immunity of &#sect; 230(c)(2)(A) on which Defendants rely. The former provision, at issue in Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), was indeed passed to overrule decisions such as Stratton Oakmont, Inc. v. Prodigy, 1995 WL 323710 (N.Y. Sup. Ct. 1995). The provision at issue here, however, has an entirely different purpose. As previously noted by this Court:

Section 230(c) creates two distinct forms of immunity. Subsection (c)(1) . . . immunizes interactive computer service providers and users from defamation liability premised on theories similar to that proposed in Stratton-Oakmont and, indeed, in this case . . . . On the other hand, subsection (c)(2) precludes holding an interactive computer service provider or user liable on account of (i) actions taken in good faith to restrict access to material that the provider or user deems objectionable, and (ii) actions taken to provide others with the technical means to restrict access to objectionable material.

Zeran v. America Online, Inc., 958 F. Supp. 1124, 1135, n. 22 (E.D.Va. 1997) (Ellis, J.)

The immunity of subsection 1 was admittedly intended to avoid financial liability for service providers in the context of tort suits. The subsection 2 immunity, however, was founded on a different policy:

Congress' clear objective in passing &#sect; 230 of the CDA was to encourage the development of technologies, procedures and techniques by which objectionable material could be blocked or deleted either by the interactive computer service provider itself or by the families and schools receiving information via the Internet.

Id. at 1134.

That policy is directly implicated by the decision in this case. Failure to recognize and effectuate the immunity would be plainly inconsistent with congressional policy.6/

Plaintiffs suggest that the statutory immunity is not absolute, but is limited to preclusion of an award of damages and does not bar a suit for declarative or injunctive relief.7/ Plaintiffs’ Opp. at 19. That argument, while superficially attractive, overlooks the practical aspects of litigation involving library filtering.

The likelihood of damage litigation against libraries for installation of Internet filtering software is slim, if not non-existent. This Court is well aware of the economics of contemporary litigation. That reality effectively precludes damage litigation over library filtering. By definition, library patrons do not pay to see Internet materials and the loss of access to specific websites simply cannot cause economic damage to providers. Absent economic injury, there can be no damage litigation.

The only litigation that is realistic in this context is the litigation that has materialized here – litigation instigated and apparently funded by public interest organizations and pro bono counsel. The fact that such suits may seek only declaratory and injunctive relief does not lessen the burden such suits impose on public institutions. Indeed the practical cost of defending litigation like this case has already led at least one local government to capitulate to ACLU demands that the county libraries allow unfiltered access to the Internet.8/ Such litigation plainly provides a disincentive to use filters in public libraries. Failure to recognize absolute immunity in this case would frustrate congressional policy and fail to implement the unambiguous provision in 47 U.S.C. &#sect; 230(c)(2)(A).

III. Plaintiffs have not established standing

Plaintiffs have not established their standing to litigate these claims. The failure is particularly glaring with respect to the first-named Plaintiff, Mainstream Loudoun. The Plaintiffs do not take issue with any of the cases relied on in our opening Memorandum and essentially repeat the boilerplate allegations in the Complaint without supporting affidavits. Those unsupported allegations are legally insufficient. Once standing has been put in issue, the burden rests with the plaintiffs to establish standing, not simply allege it or argue through counsel that they have it. Cf., Maryland Highways Contractors v. State of Maryland, 933 F.2d 1246, 1250-51 (4th Cir.), cert. denied, 502 U.S. 939 (1991) (insufficient evidence of standing to defeat motion for summary judgment).9/ The absence of any effort to show that the standing requirements established by the Fourth Circuit have been met requires the dismissal of Mainstream Loudoun as a party.

As to the standing of the individuals named in the Complaint, Plaintiffs now invoke Lamont v. Postmaster General, 381 U.S. 301 (1965).10/ Plaintiffs now claim that the mere submission of a request to unblock a website is “a second (sic) First Amendment injury.” Plaintiffs’ Opp. at 25. That claim is, quite frankly, surprising and borders on specious. In effect Plaintiffs now claim that it is unconstitutional for a library to require patrons to present a library card in order to check out books because such identification procedures might “chill research,” impose a “stigma,” create an “inconvenience” and is “annoying.” Plaintiffs’ Opp. at 26.

If Plaintiffs are serious in attempting to litigate the “unblocking request” procedure, then we acknowledge they could allege sufficient facts to give them standing to litigate that issue. But we had not understood this case to involve such trivial matters. We had thought – and still understand – that the Plaintiffs seek absolute access to all Internet materials, not simply to invalidate the “unblocking” procedure. Since the goal is actual unlimited access, Plaintiffs are required to demonstrate that one or more of them have actually been denied access to a specific site before they can establish standing. None of them has done so. 11/


For the reasons stated in our opening Memorandum, this Memorandum and to be stated at the hearing, the Complaint should be dismissed for failure to state a claim.
Respectfully submitted,


Kenneth C. Bass, III (VSB #1021)

2010 Corporate Ridge, Suite 400
McLean, Virginia 22012
(703) 760-1600
(202) 962-4800

February 18, 1998

1/ Plaintiffs do not cite anything in our memorandum to support their contention.
2/ The decisions of courts in other circuits that have attempted to apply Pico (cases cited in Plaintiffs’ Opp. at 10, n. 10) do not alter the fact that there was no majority decision on the applicability of the First Amendment to library accession decisions in that case. If other courts have mistakenly treated Justice Brennan’s opinion as controlling, there is no reason why this Court should so treat it. The fact remains that under the Supreme Court precedent that governs this Court, there is no decision holding that the First Amendment applies to the claim asserted here, much less a decision that invalidates the Loudoun County Library Internet Policy.
3/ In Reno the issue was the constitutionality of a complete ban on the transmission of certain information over the Internet.
4/ Plaintiffs dwell on alleged deficiencies of the X-Stop filtering software. That discussion ignores the important fact that the filtering software is only an initial screen used by the Library as a tool to attain the ends set out in the Policy itself. What the Library Board has decided to exclude from the Loudoun libraries is information that meets the criteria set out in the Policy. The filtering software is a first step – not the last – in making decisions on what material to exclude. The final step, as Plaintiffs at times recognize, is the decision made by the Library staff on a case-by-case basis when they review specific websites. What is at issue here is not X-Stop, or any other software, but the basic concept of a Library’s freedom to choose what material it will display. Under Plaintiffs’ Complaint, the Loudoun County Library would still violate the First Amendment if they removed the filtering software and instead blocked objectionable websites on a case-by-case basis alone.
5/ In footnote 21 of their Opposition, Plaintiffs suggest that they question the good faith of the individual Defendants in adopting the Internet Policy. No allegation of bad faith was made in the Complaint. We submit that Plaintiffs’ counsel cannot in good faith contend that the individual defendants acted in bad faith. This case involves an honest difference of opinion on an open and novel First Amendment issue. There is no place in this case for aspersions as to the motives, morals, politics or philosophy of the individual Defendants.
6/ Plaintiffs make the curious argument that &#sect; 230(c)(2)(A) should be interpreted as a shield against Title VII liability. Plaintiffs’ Opp. at 19, n. 19. That argument is plainly wrong. The threat of Title VII liability arises if the library does not filter its Internet terminals and thus exposes patrons and staff to the possibility of viewing materials that could be harassing under Title VII. Section 230(c)(2)(A) does not provide any immunity for entities that do not filter Internet access. Thus, it is logically impossible for that section to function as a shield against Title VII liability.
7/ Plaintiffs’ counsel mistakenly states that they are not seeking damages here. Plaintiffs’ Opp. at 19. Unless they expressly waive the prayer for attorneys’ fees, Plaintiffs are seeking damages, as that term has been interpreted in the context of civil immunity.
8/ The Kern County, California, library had initially decided to offer only filtered access to the Internet. The ACLU threatened the county with litigation and the county decided to install unfiltered terminals. According to published reports, the county decided to pay $40,000 to purchase additional Internet hardware rather than defend the threatened litigation that the county attorney estimated would cost $80,000, separate from any damage claim. See D. Zapata, “County to Remote Internet Restrictions”, Bakersfield Californian, (Jan. 28, 1998), see also C|Net article published at http://www.news.com/News/Item/0,4,18567,00.html (The county “‘board decided it would be less expensive to implement the new computers than to fight a lawsuit.’”) In expressly claiming “victory” for this result, the ACLU acknowledged that the county’s decision was made in response “to a warning from the ACLU.” An ACLU attorney was quoted in the ACLU press release as being “relieved that this issue has been resolved swiftly and without a lengthy and costly legal battle.” See http://www.aclu.org/news/n012898d.html. Clearly organizations are using the threat of costly litigation to cause libraries to avoid filtering or spend additional funds for unfiltered access.
9/ Plaintiffs state that the Timmerman Declaration was not “submitted to support [Defendants’] standing argument.” Plaintiffs’ Opp. at 23, n. 25. That position is plainly wrong. In the standing section of our memo, we note that “none of these Plaintiffs have ever attempted to exercise the Internet Policy's ‘Request to Review Blocked Site’ procedure to request that the websites be unblocked” and argued that absent submission of such a request, no individual plaintiff had suffered cognizable injury. To support those positions we specifically cited the Timmerman Declaration. See Defendants’ Memo at 19, n. 18 and 24, n. 24.
10/ It was the alleged unconstitutionality of the notification procedures itself that was sufficient to establish standing in Lamont. In that case the Supreme Court began its analysis with the principle that receipt of mail was a First Amendment right that must remain “unfettered” as long as the United States decided to run a postal service. Lamont, supra, at 305. In this case, however, the existence of the constitutional right asserted in the complaint is very much at issue. Unlike the right to use the mails, there is no established right to receive all information through the vehicle of a public library. In Lamont the submission of the required request would result in the automatic transmission of the detained mail. In this case submission of an unblocking request is only a step in the process of determining whether access to the designated site is or is not consistent with the Internet Policy. Thus Lamont involved only a procedural limitation on an established right, while here the unblocking process is an aspect of the very right of access at issue. Because the request procedure itself was the target of the litigation, the Lamont plaintiffs had standing to litigate that claim. Because the goal of this suit is to attain unlimited access to the Internet, it is necessary for the Plaintiffs to allege and prove an actual denial of access, not simply an unblocking process they find objectionable.
11/ The Declaration submitted by Plaintiff Kronpat does not establish standing. He acknowledges that he has not submitted any unblocking requests. His claim that he would have felt “intimidated” by filling out a request form is facially incredible. He has filed a public declaration listing numerous sites that were allegedly blocked, sites that he presumably had to try to access from a Library terminal in order to determine they were unblocked. He was plainly not "intimidated" by the prospect of becoming a Plaintiff here or filing that Declaration. Filing a “Request To Review Blocked Site” form in no way implies the requestor has tried to visit a “pornographic” site or is attempting to inflict “sexual harassment” as Mr. Kropat suggests. Such a submission suggests – and on its face states – that the requestor believes the site is inappropriately blocked and that it does not contain improper material under the Internet Policy. See Ex. 2 to the Timmerman Declaration.