Mainstream Loudoun v. Board of Trustees of the Loudoun County Library

MEMORANDUM OPINION AND ORDER

Before the Court are defendants’ Motion to Dismiss the Individual Defendants and Motion to Dismiss for Failure to State a Claim or, in the Alternative, for Summary Judgment, in a case of first impression, involving the applicability of the First Amendment’s free speech clause to public libraries’ content-based restrictions on Internet access.

I. Background

The plaintiffs in this case are an association, Mainstream Loudoun, and ten individual plaintiffs, all of whom are both members of Mainstream Loudoun and adult patrons of Loudoun County public libraries. Defendants are the Board of Trustees of the Lou-doun County Public Library, five individual Board members, and Douglas Henderson, Loudoun County’s Director of Library Services. The Loudoun County public library system has six branches and provides patrons with access to the Internet and the World Wide Web. Under state law, the “management and control” of this library system is vested in a Board of Trustees (the “Library Board”). See Va.Code Ann. § 42.1-35. Library Board members are appointed by County officials and are not elected. See id. In addition to their management and control duties, Virginia Code § 42.1-35 directs the Library Board to “adopt such bylaws, rules and regulations for their own guidance and for the government of the free public library system as may be expedient.”

On October 20, 1997, the Library Board voted to adopt a “Policy on Internet Sexual Harassment” (the “Policy”), which requires that “[s]ite-blocking software ... be installed on all [library] computers” so as to: “a. block child pornography and obscene material (hard core pornography)”; and “b. block material deemed Harmful to Juveniles under applicable Virginia statutes and legal precedents (soft core pornography).” To implement the Policy, the Library Board chose “X-Stop,” a commercial software product intended to limit access to sites deemed to violate the Policy.

Plaintiffs allege that the Policy impermissi-bly blocks their access to protected speech such as the Quaker Home Page, the Zero Population Growth website, and the site for the American Association of University Women-Maryland. Complaint ¶¶ 96-105. They also claim that there are no clear criteria for blocking decisions and that defendants maintain an unblocking policy that unconstitutionally chills plaintiffs’ receipt of constitutionally protected materials. Complaint ¶¶ 92, 95,127-129.

Based on the above allegations, plaintiffs bring this action under 42 U.S.C. § 1983 against the Library Board and against five individual Library Board members in both their personal and official capacities, and Director of Library Services Douglas Henderson in his official capacity. Plaintiffs allege that the Policy imposes an unconstitutional restriction on their right to access protected speech on the Internet, and seek declaratory and injunctive relief, as well as costs and attorneys’ fees pursuant- to 42 U.S.C. § 1988. 1

*788 II. Immunity Issues

In their Motion to Dismiss the Individual Defendants, the individual Library Board members (the “individual defendants”) argue that they are entitled to absolute and qualified immunity and that suing them individually is redundant given plaintiffs’ action against the Board itself.

A. Legislative Immunity

The individual defendants argue that they are entitled to absolute immunity for their decision to adopt the Policy. As defendants point out, “[i]t is well established that federal, state, and regional legislators are entitled to absolute immunity from civil liability for their legislative, activities.” Bogan v. Scott-Harris, — U.S. —, 118 S.Ct. 966, 969, — L.Ed.2d —(1998); see Lake Country Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 404, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979). Legislative immunity bars not only actions for damages but also § 1983 actions for declaratory and injunctive relief. See Supreme Ct. of Va. v. Consumers Union, 446 U.S. 719, 732, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980). Such immunity applies both to the legislative body itself and to its individual members. See id. 446 U.S. at 733-34. Legislative immunity is premised on the notion that “a private civil action, whether for an injunction or damages, creates a distraction and forces [legislators] to divert their time, energy, and attention from their legislative tasks to defend the litigation.” Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 503, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975). The Supreme Court has also recognized that the threat of civil liability robs legislators of the courage necessary to legislate for the public good. See Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); see also Lake Country, 440 U.S. at 405.

This term, in Bogan, the Supreme Court explicitly extended absolute immunity to local government officials, finding that such officials “are likewise absolutely immune from suit under § 1983 for their legislative activities.” See Bogan, 118 S.Ct. at 970; see also Bruce v. Riddle, 631 F.2d 272 (4th Cir.1980) (finding legislative immunity for local legislators). The Court held that city council members acted in a legislative capacity when they voted to adopt an ordinance eliminating the respondent’s department, and were therefore entitled to absolute immunity. See id.

Plaintiffs argue that Library Board members should not be entitled to legislative immunity because they are appointed rather than elected, and as such lack a direct electoral check on their actions. Plaintiffs rely heavily on Justice Marshall’s dissent in Lake Country, in which he stated:

To cloak [appointed] officials with absolute protection where control by the electorate is so attenuated subverts the very system of cheeks and balances that the doctrine of legislative privilege was designed to secure. Insulating appointed officials from liability, no matter how egregious their “legislative” misconduct, is unlikely to enhance the integrity of the legislative process.

Lake Country, 440 U.S. at 407 (Marshall, J., dissenting). The Supreme Court, however, rejected Justice Marshall’s argument in both Lake Country and Bogan in favor of a functional analysis of legislative immunity. See Lake Country, 440 U.S. 391, 403-06, 99 S.Ct. 1171, 59 L.Ed.2d 401 (granting legislative immunity to decisions of unelected regional body); Bogan, 118 S.Ct. at 971. Specifically, the Court explained in Bogan that legislative immunity was premised on the notion that “the exerdse of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability,” and that this rationale applied equally to state, regional, and local legislators. Bogan, 118 S.Ct. at 971; see also Bruce, 631 F.2d at 277-80 (adopting functional analysis of Lake Country and finding that absolute immunity applied to legislative decisions of local officials). Based on this authority, we reject plaintiffs’ argument.

It is clear in this case that the Library Board’s decision to adopt the Policy was legislative in nature. Virginia Code § 42.1-35 gives the Library Board legislative authority to create and adopt rules and bylaws for the governance of the library system, and the Policy was enacted pursuant to that authority. Moreover, the Policy is prospective in nature, and of general application. *789 In contrast, the examples given by plaintiffs of non-legislative acts are individual and adjudicative in nature and do not pertain here. See Scott v. Greenville Co., 716 F.2d 1409, 1423 (4th Cir.1983) (wrongful withholding of building permit); Front Royal & Warren County Indus. Park Corp. v. Town of Front Royal, Va., 865 F.2d 77, 79 (4th Cir.1989) (withholding of sewer service). Like the City Council’s adoption of an ordinance in Bogan, the Library Board’s adoption of the Policy was essentially a discretionary exercise of rulemaking authority. As such, it is properly treated as legislative in nature. Accordingly, under Bogan, the Library Board and its members are entitled to absolute immunity for their decision to adopt the Policy.

However, in addition to promulgating Library rules and regulations, the Library Board is also charged with the “management and control of [the] free public library system.” Va.Code Ann. § 42.1-35. The Library Board therefore has a prominent role in enforcing the policy it has chosen to adopt. Plaintiffs’ allegations specifically target the Library Board’s enforcement activities, in a section entitled “Implementation of the Policy.” Complaint ¶ 70. Indeed, one aspect of the Board’s enforcement role, its choice of the filtering software used to block “pornography,” is a central issue in the instant action.

In Consumers Union, the Court held that the Virginia Supreme Court acted in a legislative capacity when it promulgated the Virginia Code of Professional Responsibility, and was therefore entitled to absolute immunity for its legislative decisions. See 446 U.S. at 734. However, the Court allowed a § 1983 action for declaratory and injunctive relief to continue against the Virginia court because it found that the court also played a non-legislative role in enforcing the Code. As such, the Virginia Supreme Court could properly be enjoined from enforcing the rules it had promulgated. Id. at 736. 2 Following Consumers Union, we find that the Library Board and its members are not entitled to legislative immunity in their enforcement role. See id. at 734-36. Plaintiffs may therefore properly sue the Library Board and its individual members for declaratory and injunctive relief under § 1983 to prevent them from enforcing the Policy. 3 See id.

B. Communications Decency Act Immunity

Defendants also claim that they are immune from suit under section 509 of the Telecommunications Act of 1996, now codified at 47 U.S.C. § 230. Section 230 is entitled “Protection for private blocking and screening of offensive material,” and provides at § 230(c)(2) that:

No provider or user of an interactive computer service shall be held liable on account of ... any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

The Act defines “interactive computer service” to include “a service or system that provides access to the Internet [that is] offered by libraries or educational institutions.” 47 U.S.C. § 230(e)(2). Based on the above language, defendants argue that they are absolutely immune from suit for their decision to promulgate and enforce the Policy.

Although defendants’ interpretation of § 230(a)(2) is facially attractive, it is not supported by that section’s legislative history or relevant case law. At the beginning of § 230, Congress states that “[i]t is the policy of the United States ... to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by *790 federal or state regulation.” 47 U.S.C. § 230(b)(2). Interpreting § 230, the Fourth Circuit has explained that:

The purpose of [§ 230] statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.

Zeran v. America Online Inc., 129 F.3d 327, 330 (4th Cir.1997). The Fourth Circuit went on to explain that “[a]nother important purpose of § 230 was to encourage service providers to self-regulate the dissemination of offensive materials over their services.” Id. at 331. Thus, as its name implies, § 230 was enacted to minimize state regulation of Internet speech by encouraging private content providers to self-regulate against offensive material; § 230 was not enacted to insulate government regulation of Internet speech from judicial review. Even if § 230 were construed to apply to public libraries, defendants cite no authority to suggest that the “tort-based” immunity to “civil liability” described by § 230 would bar the instant action, which is for declaratory and injunctive relief. See 47 U.S.C. § 230(a)(2); Zeran, 129 F.3d at 330. We therefore hold that 47 U.S.C. § 230 does not bar this action.

C. Eleventh Amendment Immunity

Although the issue was not raised in the pleadings, at oral argument the parties raised the possibility that plaintiffs’ suit might be barred by the Eleventh Amendment to the United States Constitution. The Eleventh Amendment bars federal claims against states and state officials for money damages and other retrospective relief. See Edelman v. Jordan, 415 U.S. 651, 666-67, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Republic of Paraguay v. Allen, No. 96-2770, 1998 WL 19933 (4th Cir. Jan.22, 1998). “A state and its officers are not entitled to Eleventh Amendment protection, however, where a plaintiff seeks only prospective, injunctive relief.” Gray v. Laws, 51 F.3d 426, 430 n. 1 (4th Cir.1995); see Edelman, 415 U.S. at 664-68. The same is true for awards of costs and attorneys’ fees made pursuant to 42 U.S.C. § 1988. See Hutto v. Finney, 437 U.S. 678, 694, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). Accordingly, in the instant ease, the Eleventh Amendment does not bar plaintiffs’ § 1983 action for declaratory and injunctive relief and attorneys’ fees against the Library Board or its individual members.

D. Oualified Immunity

In the alternative, the individual defendants argue that, in promulgating and enforcing the Policy, they are entitled to qualified immunity against the present suit. Public officials are entitled to qualified immunity from liability for acts that do not “violate clearly established statutory or constitutional principles of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). However, as defendants concede, qualified immunity does not apply to actions for prospective, injunctive relief like the one at issue here, see id. (qualified immunity shields public officials from civil damages liability), nor does it prevent an award of attorneys’ fees pursuant to 42 U.S.C. § 1988 against public officials acting in their official capacity. See Pulliam v. Allen, 466 U.S. 522, 543-44, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984). Therefore, given the relief sought by plaintiffs, the individual defendants are not entitled to qualified immunity for the promulgation and enforcement of the Policy.

E. The Real Party in Interest

Finally, defendants argue that plaintiffs’ suit against the individual defendants is redundant because the Library Board itself is already a party. We agree. As the Supreme Court has recognized, “official capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent.” Monell v. Department of Soc. Servs., 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Here, plaintiffs’ suit against the Library Board itself, if successful, will provide plaintiffs with full relief against enforcement *791 of the Policy. Moreover, the nine-person Library Board appears to act only by the consensus decisions of its members. As such, plaintiffs’ suit against the five Board members who voted to adopt the Policy is impractical as a means to enjoin the Library Board from enforcing the Policy. This Court therefore concludes that the individual Library Board members are unnecessary parties to this action and should be dismissed. Plaintiffs’ suit against Douglas Henderson, Director of Library Services, is similarly unnecessary because Henderson is sued solely as a surrogate for the Board itself; moreover, a judgment against him cannot be expected to provide plaintiffs with complete relief against enforcement of the Policy. Accordingly, he will be dismissed as well.

III. Standing

Defendants argue that plaintiffs lack standing to pursue this action because neither the individual plaintiffs nor Mainstream Loudoun have suffered an actual injury as a result of the Policy. Specifically, defendants allege that no member of Mainstream Loudoun has attempted to access blocked Internet materials in Loudoun County libraries, or petitioned a library to unblock a blocked site. An association has standing to sue on behalf of its members when: “(1) its own members would have standing to sue in their own right; (2) the interests the organization seeks to protect áre germane to the organization’s purpose; and (3) neither the claim nor the relief sought requires the participation of - the individual members in the lawsuit.” Maryland Highways Contractors v. Maryland, 933 F.2d 1246, 1250 (4th Cir.1991); see Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Defendants contend that the first requirement is not met here because none of the individual plaintiffs has alleged the actual injury necessary to sue on his own behalf.

Defendants’ argument is contradicted by plaintiffs’ Complaint, which alleges that several Mainstream Loudoun members have attempted to access Internet publications at Loudoun County libraries but discovered that the sites had been blocked. See Complaint ¶¶ 19, 20, 23. In evaluating a motion to dismiss the Court must treat the allegations in plaintiffs’ Complaint as true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Because these plaintiffs have alleged that their access to particular Internet sites was blocked pursuant to the Policy, their claims survive dismissal.

Defendants also allege that no individual plaintiff claims to have requested that a site be unblocked and had that request denied; however, we find that no such allegation is necessary to confer standing. See Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1943). In Lamont, the plaintiff sued to invalidate a federal statute that directed the Postmaster General not to deliver a publication deemed “communist propaganda” without a written request from the plaintiff. See id. 381 U.S.at 302-04. Plaintiff refused to make such a written request, claiming that the requirement imposed -an unconstitutional burden on his First Amendment right to receive protected speech. See id. at 304-05. Despite plaintiffs refusal to seek access to restricted materials, the Supreme Court allowed him to maintain his First Amendment claim. See id. In accordance with Lamont, the plaintiffs in this case need not allege that they actually requested that a particular site be unblocked. Instead, plaintiffs need only allege that they were unable to access otherwise protected materials as a result of the Policy. Because the Complaint contains such allegations, the first requirement of Maryland Highways Contractors is satisfied here. See 933 F.2d at 1250.

Defendants also allege that Mainstream Loudoun, does not satisfy the third requirement of Maryland Highways Contractors because the interests of individual members may be in conflict with Mainstream Loudoun’s interest in pursuing this action. The Fourth Circuit has held that associations lack standing where “there are actual conflicts of interest which would require that the individual members come into the lawsuit to protect their interests.” Id. at 1252-53. As evidence of an actual conflict, defendants point to Mainstream Loudoun’s allegation that: “We reflect countless races, religions and lifestyles, and we often differ on ques *792 .tions of morality and behavior.” Complaint ¶ 12. However, defendants ignore Mainstream Loudoun’s additional claim that its unifying goal is “to ensur[e] a free and open society that preserves religious and personal freedom as established by the U.S. Constitution.” Complaint ¶ 12. That Mainstream Loudoun has a diverse membership does not, by itself, demonstrate the existence of an actual conflict of interest in this case. Moreover, plaintiffs have alleged that a judgment invalidating the Policy will completely satisfy the interests of the association’s members. As such, Mainstream Loudoun appears to satisfy all of the elements needed to have standing. For these reasons, Mainstream Loudoun will not be dismissed from this action.

Finally, defendants correctly note that several plaintiffs fail to allege that they ever attempted to access an Internet site blocked pursuant to the Policy. See Complaint ¶¶ 15-18, 21-22, 24-25 (plaintiffs Judy Coughlin, Henry Taylor, Ann Curley, Judith Hines, Kathryn Kern-Levine, Michael Clay, Jerome Smith, and Mary Adams). Without that allegation, these individual plaintiffs cannot claim that they were ever denied access to constitutionally protected speech. As such, they have not alleged an actual injury sufficient to maintain standing. See Northeastern Fla. Contractors v. Jacksonville, 508 U.S. 656, 663, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). These individual plaintiffs must therefore be dismissed from this action.

IV. Plaintiffs’ First Amendment Claim

In their Motion to Dismiss for Failure to State a Claim, or, in the Alternative, for Summary Judgment, defendants concede that the Policy prohibits access to speech on the basis of its content. See Def. Brief at 11. However, defendants argue that the “First Amendment does not in any way limit the decisions of a public library on whether to provide access to information on the Internet.” Def. Brief at 2. Indeed, at oral argument, defendants went so far as to claim that a public library could constitutionally prohibit access to speech simply because it was authored by African-Americans, or because it espoused a particular political viewpoint, for example pro-Republican. See Feb. 27, 1998 Hearing Transcript at 48. Thus, the central question before this Court is whether a public library may, without violating the First Amendment, enforce content-based restrictions on access to Internet speech.

No cases directly address this issue. However, the parties agree that the most analogous authority on this issue is Board of Education v. Pico, 457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982), in which the Supreme Court reviewed the decision of a local board of education to remove certain books from a high school library based on the board’s belief that the books were “anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy.” Id. 457 U.S. at 856. The Second Circuit had reversed the district court’s grant of summary judgment to the school board on plaintiff’s First Amendment claim. A sharply-divided Court voted to affirm the Court of Appeal’s decision to remand the case for a determination of the school board’s motives. However, the Court did not render a majority opinion. Justice Brennan, joined by three Justices, wrote what is commonly referred to as the “plurality” opinion. Justice Brennan held that the First Amendment necessarily limits the government’s right to remove materials on the basis of their content .from a high school library. See id. at 864-69 (plurality op.). Justice Brennan reasoned that the right to receive information is inherent in the right to speak and that “the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge.” Id. at 866 (quoting Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)); see also Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) (“the Constitution protects the right to receive information and ideas”). Justice Brennan explained that this principle was particularly important given the special role of the school’s library as a locus for free and independent inquiry. See id. 457 U.S. at 869. At the same time, Justice Brennan recognized that public high schools play a crucial inculcative role in “the preparation of individuals for participation as citizens” and are therefore entitled to great discretion “to establish and apply their curriculum in such a way as to transmit community values.” Id. at 863-64 (quoting Ambach *793 v. Norwick, 441 U.S. 68, 76-77, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979) (internal quotation marks omitted)). Accordingly, Justice Bren.nan held that the school board members could not remove books “simply because they dislike the ideas contained [in them],” thereby “preserib[ing] what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” but that the board might remove books for reasons of educational suitability, for example pervasive vulgarity. Id. 457 U.S. at 872 (quoting West Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943)) (internal quotation marks omitted).

In a concurring opinion, Justice Blackmun focused not on the right to receive information recognized by the plurality, but on the school board’s discrimination against disfavored ideas. Justice Blackmun explicitly recognized that Pico’s facts invoked two significant, competing interests: the inculcative mission of public high schools and the First Amendment’s core proscription against content-based regulation of speech. See id. 457 U.S. at 876-79 (Blackmun, J., concurring). Justice Blackmun noted that the State must normally demonstrate a compelling reason for content-based regulation, but that a more limited form of protection should apply in the context of public high schools. See id. at 877-78. Balancing the two principles above, Justice Blackmun agreed with the plurality that the school board could not remove books based on mere disapproval of their content but could limit its collection for reasons of educational suitability or budgetary constraint. See id. at 879.

Dissenting, Chief Justice Burger, joined by three Justices, concluded that any First Amendment right to receive speech did not affirmatively obligate the government to provide such speech in high school libraries. See id. at 888 (Burger, C.J., dissenting). Chief Justice Burger reasoned that although the State could not constitutionally prohibit a speaker from reaching an intended audience, nothing in the First Amendment requires public high schools to act as a conduit for particular speech. See id. at 885-89. Chief Justice Burger explained that such an obligation would be inconsistent with public high schools’ inculcative mission, which necessarily requires schools to make content-based choices among competing ideas in order to establish a curriculum and educate students. See id. at 889.

Defendants contend that the Pico plurality opinion has no application to this ease because it addressed only decisions to remove materials from libraries and specifically declined to address library decisions to acquire materials. See id. at 861-63, 871-72 (plurality op.). Defendants liken the Internet to a vast Interlibrary Loan system, and contend that restricting Internet access to selected materials is merely a decision not to acquire such materials rather than a decision to remove them from a library’s collection. As such, defendants argue, the instant ease is outside the scope of the Pico plurality.

In response, plaintiffs argue that, unlike a library’s collection of individual books, the Internet is á “single, integrated system.” PL Brief at 14 (quoting ACLU v. Reno, 929 F.Supp. 824, 838 (E.D.Pa.1996)), aff’d, — U.S. —,