Hunter v. Salem, Missouri, City of et al

Filing 55

STATEMENT of Material Facts re 54 MOTION for Summary Judgment filed by Plaintiff Anaka Hunter. (Attachments: # 1 Exhibit Ex. P-1, # 2 Exhibit Ex. P-2, # 3 Exhibit Ex. P-3, # 4 Exhibit Ex. P-4, # 5 Exhibit Ex. P-4A, # 6 Exhibit Ex. P-5, # 7 Exhibit Ex. P-6, # 8 Exhibit Ex. P-7, # 9 Exhibit Ex. P-8, # 10 Exhibit Ex. P-9, # 11 Exhibit Ex. P-10, # 12 Exhibit Ex. P-11, # 13 Exhibit Ex. P-12, # 14 Exhibit Ex. P-13, # 15 Exhibit Ex. P-14, # 16 Exhibit Ex. P-15, # 17 Exhibit Ex. P-16, # 18 Exhibit Ex. P-17, # 19 Exhibit Ex. P-18, # 20 Exhibit Ex. P-19, # 21 Exhibit Ex. P-20, # 22 Exhibit Ex. P-21, # 23 Exhibit Ex. P-22 - Part 1 of 4, # 24 Exhibit Ex. P-22 - Part 2 of 4, # 25 Exhibit Ex. P-22 - Part 3 of 4, # 26 Exhibit Ex. P-22 - Part 4 of 4, # 27 Exhibit Ex. P-23, # 28 Exhibit Ex. P-24, # 29 Exhibit Ex. P-25, # 30 Exhibit Ex. P-26, # 31 Exhibit Ex. P-27, # 32 Exhibit Ex. P-28, # 33 Exhibit Ex. P-29, # 34 Exhibit Ex. P-30, # 35 Exhibit Ex. P-31)(Rothert, Anthony)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
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)
)
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) No. 4:12-CV-4 ERW
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ANAKA HUNTER,
Plaintiff,
v.
BOARD OF TRUSTEES, SALEM PUBLIC
LIBRARY, et al.,
Defendants.

PLAINTIFF’S STATEMENT OF UNCONTROVERTED MATERIAL FACTS
Pursuant to E.D.Mo. L.R. 4.01(E), the following are uncontroverted material facts
in support of Plaintiff’s Motion for Partial Summary Judgment:
1.

This Court has jurisdiction pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343,

and 42 U.S.C. § 1983. Defendant Board of Trustee’s Answer to Plaintiff’s Complaint,
March 5, 2012 (Doc. #16) at ¶ 4 (admitting corresponding allegation); Defendant Glenda
Wofford’s Answer to Plaintiff’s Complaint, March 5, 2012 (Doc. #17) at ¶ 4 (admitting
corresponding allegation).
2.

Venue in this Court is proper pursuant to 28 U.S.C. § 1391(b)(1) and E.D.

Mo. L.R. 2.07(A)(1), (B)(2) because at least one Defendant resides in Dent County,
Missouri, and the events giving rise to this Complaint occurred in Dent County, Missouri.
Doc. #16 at ¶ 5 (admitting corresponding allegation); Doc. #17 at ¶ 5 (admitting
corresponding allegation).
3.

Plaintiff Anaka Hunter is an adult resident of Salem, Missouri. 30(b)(6)

Deposition of Defendant Board of Trustees, Salem Public Library (Defendant Glenda
Wofford, Designee), September 4, 2012 (Ex. 1) at p. 136.
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4.

Hunter pays the library tax, which is based on property tax and personal

property tax. Id.
5.

Salem Public Library is a public library located in Salem, Missouri. Doc.

#16 at ¶ 7 (admitting corresponding allegation); Doc. #17 at ¶ 7 (admitting corresponding
allegation).
6.

The Salem Public Library was established pursuant to MO. REV. STAT. §

182.140. Doc. #16 at ¶ 7 (admitting corresponding allegation); Doc. #17 at ¶ 7 (admitting
corresponding allegation).
7.

The Salem Public Library’s primary source of funding is a library tax,

which is based on property tax and personal property taxes and is collected by City of
Salem, Missouri. Ex. 1 at p. 136.
8.

Defendant Board of Trustees of the Salem Public Library (“Board”) is a

body corporate that operates the Salem Public Library. Doc. #16 at ¶ 9 (admitting
corresponding allegation); Doc. #17 at ¶ 9 (admitting corresponding allegation).
9.

The Board is authorized by statute to sue and be sued. MO. REV. STAT. §

182.200; Doc. #16 at ¶ 9 (admitting corresponding allegation); Doc. #17 at ¶ 9 (admitting
corresponding allegation).
10.

Defendant Glenda Wofford is a resident of Dent County, Missouri. Doc.

#16 at ¶ 10 (admitting corresponding allegation); Doc. #17 at ¶ 10 (admitting
corresponding allegation).
11.

Wofford is the director of the Salem Public Library and was so at all

relevant times. Doc. #16 at ¶ 10 (admitting corresponding allegation); Doc. #17 at ¶ 10
(admitting corresponding allegation); Ex. 1 at pp. 9-10, 17.

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12.

David R. Hinkle is qualified with the knowledge, skill, experience, training,

and education to offer expert testimony on the matters relating to Internet filtering about
which he has been designated to opine to help the trier of fact to understand the evidence
or to determine a fact in issue in this case. Affidavit and Expert Report of David R. Hinkle,
September 28, 2012 (Ex. 5) at pp. 2, 9.
13.

Hinkle has the knowledge, skill, experience, and training of a software

developer in Internet filtering business, and his opinions are reliable. Ex. 5 at p. 9.
14.

Dr. Joyce M. Latham is qualified with the knowledge, skill, experience,

training, and education to offer expert testimony on the matters relating to Library Science
about which she has been designated to opine to help the trier of fact to understand the
evidence or to determine a fact in issue in this case. Affidavit and Expert Report of Dr.
Joyce M. Latham, September 27, 2012 (Ex. 6) at pp. 4-6.
15.

Latham has the knowledge, skill, experience, education, and training of a

librarian, and her opinions are reliable. Ex. 6.
16.

The American Library Association Code of Ethics, passed initially in

January 1939, and amended over time, is the most critical document articulating the
principals and values affecting the practice of librarianship. Those principles which stand
out relative to the delivery of services to library users are:
We provide the highest level of service to all library users through
appropriate and usefully organized resources; equitable service policies;
equitable access; and accurate, unbiased, and courteous responses to all
requests.
We uphold the principles of intellectual freedom and resist all efforts to
censor library resources.
We protect each library user's right to privacy and confidentiality with
respect to information sought or received and resources consulted,
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borrowed, acquired or transmitted.
We distinguish between our personal convictions and professional duties
and do not allow our personal beliefs to interfere with fair representation of
the aims of our institutions or the provision of access to their information
resources.
Ex. 6 at pp. 6-7.
17.

Later that same year (1939), the American Library Association membership

passed by popular acclimation at their annual meeting the Library Bill of Rights, a
foundational document for public library acquisition policies. It states that libraries are
“forums for information and ideas.” The principles which stand out relative to library
users and their access to resources are:
Books and other library resources should be provided for the interest,
information, and enlightenment of all people of the community the library
serves. Materials should not be excluded because of the origin, background,
or views of those contributing to their creation.
Libraries should provide materials and information presenting all points of
view on current and historical issues. Materials should not be proscribed or
removed because of partisan or doctrinal disapproval.
Libraries should challenge censorship in the fulfillment of their
responsibility to provide information and enlightenment (see Appendix for
full document).
Id. at p. 6.
18.

Defendants recognize the validity of the ALA Library Bill of Rights because

the Salem Public Library Statement on Intellectual Freedom incorporates the ALA Library
Bill of Rights into its own policy. Id. at p. 12; Salem Public Library Bylaws [authenticated
by Wofford in Ex. 1 at p. 20] (Ex. 16).
19.

Beginning in or about July 2010, Hunter conducted research at the Salem

Public Library on Native American tribes and their spirituality. Ex. 1 at p. 134; Affidavit,

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February 15, 2013 (Ex. 4), Attachment to Affidavit (Attachment A) at p. 1; Ex. 1 at p. 134;
Wofford’s Log of Hunter’s Activities and Research (October 28, 2010 – December 9, 2010)
[See Ex. 2 at ¶ B.6; authenticated by Wofford in Ex. 1 at pp. 162, 172, 195] (Ex. 24) at pp.
1-2; Salem Public Library’s Computer Sign-in Logs (July 5, 2010 – December 6, 2010)
[See Ex. 2 at ¶ B.13; authenticated by Wofford in Ex. 1 at pp. 185-186] (Ex. 25) at pp. 1, 3,
6-11, 13-14, 17, 19-21, 24-26, 28-38, 40.
20.

Hunter’s research methods included accessing the Internet from computers

made available for public use by the Salem Public Library. Ex. 1 at p. 134; Ex. 4.A at p. 1;
Ex. 24 at pp. 1-2; Ex. 25 at pp. 1, 3, 6-11, 13-14, 17, 19-21, 24-26, 28-38, 40.
21.

Hunter discovered that the Internet sites she wanted to access for

information about Native American spirituality and related spirituality were blocked by the
Salem Public Library’s Internet Filter because the content she tried to view was classified
as “Occult” or “Criminal Skills.” Ex. 1 at p. 134; Ex. 4.A at p. 1; Ex. 24 at p. 1-2; Blocked
Website Notices Printed by Plaintiff [authenticated by Wofford in Ex. 1 at pp. 105-106]
(Ex. 26).
22.

Hunter first brought the improper blocking to the attention of Wofford in or

about July 2010. Ex. 4.A at p. 2.
23.

When Hunter first brought the improper blocking to the attention of

Wofford, Hunter requested that the Internet sites she tried to view on Native American
cultural and religious history and the Wiccan Church be unblocked for her research. Id.
24.

Wofford responded that there was nothing she could do and that it was up to

the filtering system what Internet content library patrons could view. Ex. 4.A at p. 2; Ex.
Salem Public Library’s Content Filtering Account Change Log (April 30, 2009 - January

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10, 2012) [See Ex. 2 at ¶ B.18; authenticated by Wofford in Ex. 1 at pp. 124-125; and
authenticated by MOREnet at Ex. 3 at pp. 60-61] (Ex. 23) at p. 35 (showing no changes in
Internet content filtering in June or July 2010).
25.

Hunter called Ms. Barbara Reading at the State Library in October 2010 to

complain about, among other things, Salem Public Library’s web filtering practice. Ex. 1
at pp. 165-166; Wofford’s Log of Hunter’s Activities and Research (October 28, 2010 –
December 9, 2010) [See Ex. 2 at ¶ B.6; authenticated by Wofford in Ex. 1 at pp. 162, 172,
195] (Ex. 24) at p. 1.
26.

Reading then called Wofford. Ex. 1 at pp. 165-166; Ex. 24 at p. 1.

27.

During this call Reading articulated to Wofford, among other things, that

Hunter complained about Salem Public Library’s web filtering discriminating based on
viewpoint. Ex. 1 at pp. 165-166; Ex. 24 at p. 1.
28.

The day before this call from Reading (October 28, 2010), Wofford began

maintaining a log of Hunter’s visits to the library, research, complaints, and interactions
with library employees and patrons. The log was maintained until December 9, 2010 (the
day Wofford called the police and turned over the log to them). Ex. 24; See supra at ¶¶ 4546.
29.

Wofford's decision to track and Hunter’s visits to the library, research,

complaints, and interactions with library employees and patrons and ultimately provide
this information to the police without subpoena is contrary to accepted public library
standards. Ex. 6 at pp. 10, 11, 18.
30.

After receiving the call from Reading, on or about October 29, 2010,

Wofford met with Hunter in the Salem Public Library meeting room for approximately 50

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minutes. Ex. 24 at p. 1; Ex. 4.A at p. 2.
31.

During this meeting with Hunter on or about October 29, 2010, Wofford

explained that she could override the filter to allow Hunter to view Internet content
currently blocked. Ex. 24 at p. 1; Ex. 4.A at p. 2.
32.

Subsequent to her discussion with Wofford on or about October 29, 2010,

Hunter again complained about viewpoint discrimination and sought to have Internet
content pertaining to Native Americans unblocked. Ex. 4.A at p. 2; Ex. 23 at pp. 35-37;
Ex. 24 at pp. 1-2.
33.

Despite having the capability to permanently unblock entire categories (e.g.,

“occult” or “criminal skills”), websites, or web pages, Wofford or other Salem Public
Library employees never did so in response to Hunter’s post-October 29, 2010, requests to
unblock Internet content. Ex. 23 at pp. 35-37.
34.

Despite having the capability to temporarily unblock entire categories (e.g.,

“occult” or “criminal skills”), websites, or web pages for up to one hour, Wofford or other
Salem Public Library employees never did so in response to Hunter’s post-October 29,
2010, requests to unblock Internet content. Ex. 23 at pp. 35-37.
35.

On three occasions, in response to Hunter’s post-October 29, 2010, requests

to unblock Internet content, Wofford or other Salem Public Library employees unblocked
websites for only one minute. Ex. 23 at p. 37.
36.

On one occasion, in response to a Hunter post-October 29, 2010, request to

unblock Internet content, Wofford or other Salem Public Library employees unblocked a
website for only five minutes. Ex. 23 at p. 35.
37.

On six occasions, in response to Hunter’s post-October 29, 2010, requests to

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unblock Internet content, Wofford or other Salem Public Library employees unblocked
web pages or websites for only 10 minutes. Ex. 23 at pp. 35-37.
38.

In response to Hunter’s post-October 29, 2010, requests to unblock Internet

content, Wofford or other Salem Public Library employees sometimes unblocked entire
domains (e.g., www.witchcraft.com), but other times only unblocked single pages to some
websites (e.g., www.deathreference.com/Me-Nu/Native-American-Religion.html and
www.crystalinks.com/sundance.html), but other sections of those same websites (e.g.,
www.deathrefrence.com and www.crystalinks.com) remained blocked. Ex. 4.A at p. 3; Ex.
24 at pp. 1-2; Ex. 23 at pp. 36-37.
39.

It was the custom, policy, and practice of Defendants to require Plaintiff to

repeatedly request over blocked Internet content be unblocked. See infra at ¶¶ 32-38.
40.

Subsequently, Hunter raised the issue of filtering again with Wofford,

stating that she thought the filtering of the Internet content she tried to view was improper
and the classification of Native American cultural and religious history and practices as the
“occult” and “criminal skills” was misleading and derogatory. Ex. 4.A at p. 3.
41.

Wofford responded that it was up to the filtering system which Internet

content library patrons could view and that she only allows people to view blocked Internet
content if it pertains to their job, if they are writing a paper, or if she determined that they
otherwise have a legitimate reason to view the content. Ex. 4.A at p. 3.
42.

Wofford’s belief that she had the authority to allow, or not allow, patrons to

view websites was consistent with the Defendants’ written “Public Access Microcomputer
Policy” which states that states that “[t]he use of the Internet system is a privilege which
can be revoked by the library at any time for abusive conduct[,] [with the] Salem Public

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Library [as] the sole arbiter of what constitutes abusive conduct.” Ex. 1 at pp. 65-75;
Salem Public Library Public Access Microcomputer Policy [See Ex. 2 at ¶ B.3;
authenticated by Wofford in Ex. 1 at p. 58] (Ex. 17) at p. 2.
43.

Wofford additionally asserted that she had an obligation to call the proper

authorities to report those who were attempting to access blocked sites if she thought they
would misuse the information they were attempting to access. Ex. 4.A at p. 4.
44.

Wofford’s assertion that she would be obligated to notify authorities caused

Plaintiff to be reasonably concerned that she would be reported to the police if she
continued to attempt to access Internet content about Native American cultural and
religious history and the Wiccan Church.
45.

On or about December 9, 2010, Wofford did call the Salem City Police

about Plaintiff’s complaints regarding Internet filtering. Ex. 1 at pp. 172-189; Police
Report from Wofford’s Complaint, December 9, 2010 [produced by Defendants in
Response to Plaintiff’s Request for Production #14; authenticated by Wofford in Ex. 1 at
pp. 188-189] (Ex. 29) at p. 1.
46.

When the police came to the Salem Public Library, Wofford disclosed the

log that she had maintained describing in detail Hunter’s activities and research at the
Salem Public Library between October and December 2010. Ex. 1 at pp. 172-189; Ex. 29
at pp. 1-7; see also supra at ¶¶ 28-29.
47.

Prior to Wofford calling the Salem Police, Hunter had last visited the library

on December 2, 2010. Ex. 1 at p. 174; Ex. 25 at p. 40.
48.

Since the Salem Police were called on December 9, 2010, Hunter has not

yet returned to the Salem Public Library. Ex. 1 at p. 174; Ex. 25 at pp. 40 ff.

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49.

It did not bother Wofford that Hunter never returned to the Salem Public

Library after she called the Salem Police and disclosed the log of Hunter’s activities and
research. Id. at p. 179.
50.

Hunter attended a meeting of the Board of Trustees for the Salem Public

Library on November 8, 2010. Doc. #16 at ¶ 23 (admitting corresponding allegation);
Doc. #17 at ¶ 23 (admitting corresponding allegation); Ex. 1 at pp. 132-138; Salem Public
Library Board of Trustees Meeting Minutes for November 2010 Meeting [See Ex. 2 at ¶
B.2; authenticated by Wofford in Ex. 1 at pp. 132-133] (Ex. 27); Ex. 4.A at p. 4.
51.

At the Board meeting, Hunter voiced her concerns about the filtering and

the policies, practices, and customs that block religious content based upon its viewpoint
and noted that it was unfair. Ex. 1 at pp. 132-138; Ex. 27; Ex. 4.A at p. 4.
52.

A member of the Board responded that the Salem Public Library’s Internet

Content Filtering (“ICF”) system would not change, adding, “If that’s all, we have
business to discuss.” Ex. 4.A at p. 5.
53.

Internet filtering was also discussed at Board of Trustees for the Salem

Public Library on December 9, 2010. Ex. 1 at pp. 139-145; Salem Public Library Board of
Trustees Meeting Minutes for December 2010 Meeting [See Ex. 2 at ¶ B.2; authenticated
by Wofford in Ex. 1 at p. 139] (Ex. 28).
54.

Wofford and the Board knew that their filtering policies, practices, and

customs resulted in unnecessary and over blocking of Internet content Plaintiff tried to
view. Ex. 1 at pp. 132-145; Ex. 27; Ex. 28.
55.

The Salem Public Library receives federal Library Services and Technology

Act (“LSTA”) grants. Doc. #16 at ¶ 27 (admitting corresponding allegation); Doc. #17 at ¶

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27 (admitting corresponding allegation); Wofford’s Sunshine Act Response to ACLU
Request, July 19, 2011 [authenticated by Wofford in Ex. 1 at pp. 183-184] (Ex. 30) at pp.
8-9.
56.

Because it receives LSTA grants, the Salem Public Library is obligated to

comply with CIPA. Doc. #16 at ¶ 28 (admitting corresponding allegation); Doc. #17 at ¶
28 (admitting corresponding allegation); Ex. 1 at pp. 49, 57, 148; Ex. 30 at pp. 8-9.
57.

CIPA requires that libraries maintain a policy and ICF systems to prevent

children from accessing “visual depictions” that are obscene, child pornography, or
harmful to minors. Ex. 5 at p. 5; Ex. 6 at pp. 6-9; See also Ex. 1 at pp. 50-51 (identifying
only [p]ornography [and] nudity” as the only things libraries must filter); Federal
Communications Commission Consumer Facts Summary of CIPA [See Ex. 2 at ¶ B.11]
(Ex. 31).
58.

CIPA applies only to visual depictions; it does not apply to text. Ex. 5 at p.

5; Ex. 6 at pp. 8-9; Ex. 31.
59.

The Salem Public Library, like all other public libraries in Missouri, is also

obligated to comply with MO. REV. STAT § 182.827.3. Ex. 1 at pp. 48-57.
60.

MO. REV. STAT. § 182.827.3 requires that libraries “limit minors’ ability to

gain access to material that is pornographic for minors.”
61.

Wofford understood the filtering requirements of CIPA and Missouri state

law were limited to content such as pornography. Ex. 1 at pp. 50-51; Ex. 30 at pp. 8-9.
62.

To comply with CIPA, the Salem Public Library must utilize a “technology

protection measure.” 20 U.S.C. § 9134(f); 47 U.S.C.A. § 254.

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63.

To comply with Missouri law, the Salem Public Library must either equip

its publicly accessible Internet-connected computers with ICF software or purchase
Internet connectivity from an Internet service provider that provides ICF filter services to
limit access to material that is pornographic for minors. MO. REV. STAT. § 182.827.3.
64.

The Salem Public Library purchases Internet connectivity from MOREnet,

an Internet service provider, that provides ICF services. Ex. 1 at pp. 49-50; Deposition of
Missouri Research & Education Network (MOREnet) (Connie Stickney, Designee), August
30, 2012 (Ex. 3) at pp. 24-36.
65.

None of the Internet content Plaintiff was prevented from accessing or

desires to view contains visual depictions that are obscene, child pornography, or harmful
to minors. Ex. 1 at pp. 149-151; Ex. 4.A at p. 5.
66.

None of the Internet content that Plaintiff was prevented from accessing or

desires to view contains material that is pornographic for minors. Ex. 1 at pp. 149-151; Ex.
4.A at p. 5.
67.

There is no reasonable basis to believe that any of the Internet content

Plaintiff was prevented from accessing or desires to view contains visual depictions that
are obscene, contain child pornography, or harmful to minors. Ex. 1 at pp. 149-151; Ex.
4.A at p. 5.
68.

There is no reasonable basis to believe that any of the Internet content

Plaintiff was prevented from accessing or desires to view contains material that was
pornographic for minors. Ex. 1 at pp. 149-150; Ex. 4.A at pp. 5-6.
69.

The Salem Public Library, through its Internet service provider, employs an

ICF program known as Netsweeper and has done so since 2009. Ex. 1 at p. 79; Ex. 3 at pp.

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24-36; Ex. 4.A at p. 6; MOREnet Announcement Regarding Change to Netsweeper Internet
Content Filtering, March 16, 2009 [authenticated by Wofford in Ex. 1 at pp. 191-192] (Ex.
9); Salem Public Library’s MOREnet Renewal, April 6, 2009 [authenticated by Wofford in
Ex. 1 at pp. 83-84; and authenticated by MOREnet at Ex. 3 at p. 27] (Ex. 10); Salem Public
Library’s MOREnet Renewal, April 6, 2010 [See Ex. 2 at ¶ B.7; authenticated by Wofford
in Ex. 1 at pp. 83-84; and authenticated by MOREnet at Ex. 3 at pp. 27-28] (Ex. 12); Salem
Public Library’s MOREnet Renewal, April 21, 2011 [See Ex. 2 at ¶ B.7; authenticated by
Wofford in Ex. 1 at pp. 193-194] (Ex. 13).
70.

The Salem Public Library has expended identifiable amounts of taxpayer

funds to provide Internet access to the public. Doc. #16 at ¶ 38 (admitting corresponding
allegation); Doc. #17 at ¶ 10 (admitting corresponding allegation); Ex. 1 at pp. 84-85; Ex.
10; Ex. 12; Ex. 13.
71.

The Salem Public Library has expended identifiable amounts of taxpayer

funds for the purchase of Internet service from MOREnet that includes Netsweeper
filtering software and associated services. Doc. #16 at ¶ 38 (admitting corresponding
allegation); Doc. #17 at ¶ 10 (admitting corresponding allegation); Ex. 1 at pp. 84-85; Ex.
10; Ex. 12; Ex. 13.
72.

Early Internet filtering solutions were first developed for parents and private

schools and therefore over blocked based on viewpoint – something Netsweeper continues
to do. Ex. 5 at pp. 2-3.
73.

Netsweeper assigns Internet content to categories. Ex. 1 at p. 110-111; Ex.

4.A at p. 6; Ex. 5 at p. 3; Ex. 6 at pp. 15-17; Netsweeper Web Admin Guide, 2009
[authenticated by MOREnet at Ex. 3 at p. 71] (Ex. 22) at p. 47.

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74.

Netsweeper provides more than 50 different URL categories users may

select from in filtering Internet content. Ex. 22 at p. 47.
75.

Netsweeper’s categories include “adult image,” “criminal skills,”

“extreme,” “general,” “IWF” (Internet content tagged by the Internet Watch Foundation as
likely to contain images of child abuse), “occult,” “pornography,” and “religion.” Ex. 3 at
pp. 68-69; Ex. 4.A at p. 6; Ex. 5 at pp. 3, 5-7; Ex. 22 at pp. 48-60.
76.

CIPA and Missouri law require libraries using Netsweeper to block only

three of Netsweeper’s categories: “adult image,” “IWF,” or “pornography,” which are the
categories that might contain visual depictions that are obscene, child pornography,
harmful to minors, or are pornographic for minors. Ex. 4.A at p. 6; Ex. 5 at pp. 5-6; Ex. 6
at pp. 15-16.
77.

Wofford knows federal and state law require the blocking of two or three

categories only. Ex. 1 at 54-55.
78.

Netsweeper allows library ICF administrators to determine which categories

are allowed and which are blocked. Ex. 1 at 87-94; Ex. 3 at pp. 40; Ex. 4.A at p. 6; Ex. 5 at
p. 3; Ex. 6 at pp. 15-18.
79.

The MOREnet Service Policy provides that each library is responsible for

determining the categories and specified websites that are allowed or blocked. Ex. 3 at pp.
40, 43-44, 96-99; MOREnet Announcement Regarding Netsweeper Internet Content
Filtering, January 22, 2009 [authenticated by Wofford in Ex. 1 at p. 183] (Ex. 8);
MOREnet Email to Wofford Regarding Initial Netsweeper Content Filtering Configuration,
April 30, 2009 [authenticated by Wofford in Ex. 1 at pp. 96-97; and authenticated by
MOREnet at Ex. 3 at p. 95](Ex. 11); MOREnet Email Regarding Change to Default

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Internet Content Filtering Configuration, August 1, 2011 [authenticated by Wofford in Ex.
1 at p. 183](Ex. 14) at p. 1; Salem Public Library’s Completed MOREnet-hosted Internet
Content Filtering Order Form, August 1, 2011 [See Ex. 2 at ¶ B.16; authenticated by
Wofford in Ex. 1 at pp. 92-93; and authenticated by MOREnet at Ex. 3 at pp. 38-39](Ex.
15).
80.

At all relevant times, Wofford was the Salem Public Library’s ICF

administrator and determined which categories of content were allowed and which are
blocked. Ex. 1 at pp. 87-94, 96; Ex. 11; Ex. 15; Wofford-MOREnet Email Exchange
Regarding Unblocking Websites, February 26, 2010 [authenticated by Wofford in Ex. at pp.
90-91; and authenticated by MOREnet at Ex. 3 at pp. 41, 77, 86] (Ex. 20).
81.

Netsweeper allows library ICF administrators to temporarily disable

blocking entirely. Ex. 4.A at p. 8.
82.

Wofford has temporarily disabled blocking entirely. Ex. 23 at p. 37.

83.

Netsweeper allows library ICF administrators to permanently enable or

disable blocking for specified categories. Ex. 1 at pp. 78-79, 87-94, 96; Ex. 3 at p. 40; Ex.
4.A at p. 8; Ex. 11; Ex. 20; Ex. 15; Ex. 22.
84.

Wofford has (and prior to Hunter’s requests had) permanently enabled and

disabled blocking for specified categories. Ex. 1 at pp. 78-79, 87-94, 96; Ex. 11; Ex. 15;
Ex. 20; Ex. 23 at pp. 34, 38-44.
85.

Netsweeper allows library ICF administrators to temporarily disable

blocking for specified categories. Ex. 1 at pp. 87-94, 96; Ex. 3 at pp. 36-54; Ex. 4.A at p.
7.

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86.

Wofford has (and prior to Hunter’s requests had) temporarily disabled

blocking for specified categories. Ex. 3 at pp. 65-66; Ex. 23 at pp. 4.
87.

Netsweeper allows library ICF administrators to permanently block or

unblock specified domains (i.e., entire websites). Ex. 1 at pp. 78-79, 94-96; Ex. 3 at pp.
47-48, 55-67; Ex. 4.A at pp. 7-8; FAQs for MOREnet migrating to Netsweeper, March 12,
2009 [See Ex. 2 at ¶ B.15; authenticated by Wofford in Ex. 1 at p. 54; and authenticated by
MOREnet at Ex. 3 at p. 37] (Ex. 7) at pp. 1-2; Ex. 20; MOREnet Instructions on
Unblocking Websites, February 26, 2010 [authenticated by Wofford in Ex. 1 at pp. 90-91;
and authenticated by MOREnet at Ex. 3 at pp. 41, 77, 86] (Ex. 21); Ex. 22 at pp. 47, 61.
88.

Wofford has (and prior to Hunter’s requests had) permanently unblocked

specified domains. Ex. 1 at pp. 78-79, 94-96, 118-119; Ex. 3 at pp. 55-59; Ex. 4.A at pp. 78; Ex. 23 at pp. 3, 6-7, 9, 11-14, 16, 34.
89.

Netsweeper allows library ICF administrators to temporarily disable

blocking for specified domains. Ex. 1 at pp. 94-96; Ex. 3 at pp. 36-67; Ex. 4.A at p. 7.
90.

Wofford has (and prior to Hunter’s requests had) temporarily disabled

blocking for specified domains. Ex. 1 at pp. 94-96; Ex. 23 at pp. 1-46.
91.

Netsweeper allows library ICF administrators to permanently disable the

blocking for specified pages. Ex. 3 at pp. 53; Ex. 4.A at p. 8; Ex. 22 at pp. 47, 61.
92.

Netsweeper allows library ICF administrators to temporarily disable the

blocking for specified pages. Ex. 3 at pp. 36-67; Ex. 4.A at pp. 7-8; Ex. 22 at pp. 47, 61.
93.

Wofford has (and prior to Hunter’s requests had) temporarily disabled

blocking for specified pages. Ex. 23 at pp. 1-46.
94.

None of the Netsweeper configuration changes requires substantial time,

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effort, or expertise on the part of library ICF administrators. Ex. 1 at pp. 123-124; Ex. 4.A
at pp. 8-9; Ex. 5 at p. 3.
95.

Wofford was at all relevant times, and remains, the Salem Public Library’s

ICF administrator with the ability to change Netsweeper’s settings on the Salem Public
Library’s publicly accessible computer terminals. Ex. 1 at pp. 87-96; Ex. 4.A at p. 9.
96.

Wofford and the Board were at all relevant times, and remain, the

policymakers who determine Salem Public Library’s policies, practices, and customs,
including which categories to block or unblock. Ex. 1 at pp. 13-26, 48-57, 149-151; Ex.
4.A at p. 9; Ex. 16; Ex. 17; Salem Public Library’s Public Access Microcomputer User
Agreement [See Ex. 2 at ¶ B.3; authenticated by Wofford in Ex. 1 at pp. 180-181] (Ex. 18);
Salem Public Library’s Computer Use Waivers for Children [See Ex. 2 at ¶ B.3;
authenticated by Wofford in Ex. 1 at pp. 181-182] (Ex. 19).
97.

Until August 1, 2011, it was the policy, practice, and custom of Defendants

to block Internet content categorized as “occult” and “criminal skills.” Ex. 1 at pp. 13-26,
48-57, 141-143, 149-151; Ex. 4.A at p. 9; Ex. 11; Ex. 15.
98.

Salem Public Library took no action to cause the change of August 1, 2011,

that resulted in the unblocking of the “occult” and “criminal skills” categories. Ex. 1 at pp.
91-94; Ex. 14; Ex. 15.
99.

The “occult” or “criminal skills” filters could again become enabled if

MOREnet makes changes to its defaults and Salem Public Library takes not action to
prevent the filters from being re-enabled. Ex. 14; Ex. 15.
100.

Salem Public Library can reactivate the “occult” or “criminal skills” filters

at any time. See supra at ¶¶ 78-80, 83-84, 96; Ex. 14, Ex. 15.

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101.

Blocking Internet content that Netsweeper categorizes as “occult” is not

required CIPA. Ex. 1 at p. 142; Ex. 4.A at pp. 6, 13; Ex. 5 at pp. 5-6; Ex. 6 at pp. 15-16.
102.

Blocking Internet content that Netsweeper categorizes as “occult” is not

required by Missouri state law. Ex. 1 at pp. 55, 142; Ex. 4.A at pp. 6, 13; Ex. 5 at pp. 5-6;
Ex. 6 at pp. 15-16.
103.

The policy, practice, and custom of Defendants of blocking Internet content

categorized as “occult” over blocked a substantial amount of web content. Ex. 5 at pp. 5-8;
Ex. 6 at pp. 15-18.
104.

Defendants know that the “occult” category substantially over blocks

Internet content, including those the Plaintiff tried to view related to Native American
cultural and religious history and the Wiccan Church. Ex. 1 at pp. 55, 122-123, 141-143,
150-151; Ex. 4.A at p. 9; Ex. 27; Ex. 28.
105.

Netsweeper categorizes Internet content discussing minority religions,

religious practices, and beliefs from a positive or neutral viewpoint as “occult,” including
but not limited to:
a.

About.com: Paranormal Phenomena (paranormal.about.com), a
viewpoint-neutral portal to news and discussions of paranormal
issues [Ex. 4.A at p. 10];

b.

All About Spirituality (www.allaboutspirituality.org), discussing
from a neutral viewpoint numerous topics in spirituality, including
angels, astrology, meditation, paganism, shamanism, and yoga [Ex.
4.A at p. 10];

c.

Astrology.com (www.astrology.com), discussing astrology and

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offering horoscope readings and similar services [Ex. 4.A at p. 10];
d.

The Church and School of Wicca (www.wicca.org), the official
homepage of the Wiccan Church [Ex. 4.A at p. 10];

e.

Cult FAQ (www.cultfaq.org), a viewpoint-neutral discussion of the
cult phenomenon, including links to resources such as counseling
and support for cult (ex-)members and their families [Ex. 4.A at pp.
10-11];

f.

The Encyclopedia of Death and Dying (www.deathreference.com),
containing viewpoint-neutral discussions of various cultures’ and
religions’ ideas of death and death practices [Ex. 4.A at p. 11];

g.

Wikipedia: Wicca (en.wikipedia.org/wiki/Wicca), a viewpointneutral discussion of the Wiccan Church [Ex. 4.A at p. 11]; and

h.

WitchVox (www.witchvox.com), an overview of pagan belief
systems, such as Druidism, Haitian Voodoo, Neopaganism, and
Wicca [Ex. 4.A at p. 11].

106.

Choosing to filter the “occult” category blocks non-mainstream religious

beliefs such as Wicca and Native American Spirituality. Ex. 5 at p. 7.
107.

In the Netsweeper manual, “occult” is described as a “category” that

“includes websites involving the study of secret or hidden knowledge such as: cults,
supernatural forces and events, occult lore, vampires, astrology, witchcraft, mysterious
symbols, and other phenomena beyond ordinary understanding. It includes websites about
these topics that are historical or factual in nature and/or promote such practices.”
Examples given include websites on Wicca. Ex. 5 at p. 7 (citing to Exhibit 22 at p. 42).

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108.

At the same time, Netsweeper categorizes Internet content discussing

mainstream religions (e.g., Christianity, Judaism, and Islam) and these mainstream
religions' views about minority religions, religious practices, and beliefs as either
“religion” or “general” (categories unblocked by Salem Public Library), including but not
limited to:
a. Astrology and Horoscopes: The Bible and Christian View
(http://www.northforest.org/ChristianTopics/Astrology.html), a
discussion of astrology from a Christian viewpoint [Ex. 4.A at pp. 1112];
b. Catholic Encyclopedia: Paganism
(www.newadvent.org/cathen/11388a.htm), a discussion of Paganism
from a Catholic viewpoint [Ex. 4.A at p. 12];
c. Christian Paranormal Answers (christianparanormalanswers.com), a
site that describes itself as “Answers about the Paranormal from a
Christian viewpoint” [Ex. 4.A at p. 12]; and
d. What does the Bible say about Voodoo?
(www.gotquestions.org/voodoo-Bible.html), a discussion of Voodoo
from a Christian viewpoint; [Ex. 4.A at p. 12];
109.

Blocking websites related to non-mainstream religious beliefs such as

Wicca and Native American Spirituality, but allowing websites related to mainstream
religious beliefs such as Christianity, Judaism and Islam, is viewpoint-based
discrimination. Ex. 5 at p. 7.

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110.

The policy, practice, and custom of Defendants to block Internet content

categorized as “occult” resulted in viewpoint-based discrimination. Ex. 5 at pp. 7-8; Ex. 6
at pp. 7, 15-19.
111.

Defendants knew that blocking the “occult” category resulted in viewpoint-

discrimination against non-mainstream religions and beliefs. Ex. 4.A at p. 12.
112.

Until August 2011, it was the policy, practice, and custom of Defendants to

block Internet content categorized as “criminal skills.” Ex. 1 at pp. 13-26, 48-57, 142-143,
150-151; Ex. 4.A at p. 13; Ex. 11; Ex. 15.
113.

Blocking Internet content that Netsweeper categorizes as “criminal skills” is

not required by CIPA. Ex. 1 at p. 142; Ex. 4.A at p. 13; Ex. 5 at pp. 5-6; Ex. 6 at pp. 15-16.
114.

Blocking Internet content that Netsweeper categorizes as “criminal skills” is

not required by Missouri law. Ex. 1 at pp. 55, 142; Ex. 4.A at p. 13; Ex. 5 at pp. 5-6; Ex. 6
at pp. 15-16.
115.

The policy, practice, and custom of Defendants to block Internet content

categorized as “criminal skills” over blocked a substantial amount of web content. Ex. 5 at
pp. 5-8; Ex. 6 at pp. 15-18.
116.

Defendants knew that blocking of the “criminal skills” category resulted in

viewpoint-discrimination against non-mainstream religions and beliefs.
117.

Defendants know that the “criminal skills” category over blocked Internet

content, including the sites and pages the Plaintiff tried to view related to Native American
cultural and religious history and the Wiccan Church. Ex. 1 at pp. 55, 142-143, 150-151;
Ex. 4.A at p. 13.
118.

The policy, practice, and custom of Defendants to block Internet content

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categorized as “criminal skills” resulted in viewpoint-based discrimination. Ex. 5 at pp. 78; Ex. 6 at pp. 7, 15-19.
119.

At all relevant times, it was Defendants’ policy, practice, and custom to

impose substantial burdens for patrons seeking to unblock Internet content that was over
blocked by the Salem Public Library’s ICF. See surpa at ¶¶ 22-24, 32-48, 50-52.
Respectfully submitted,
/s/ Anthony E. Rothert
ANTHONY E. ROTHERT, #44827MO
GRANT R. DOTY, #60788MO
AMERICAN CIVIL LIBERTIES
UNIONOF EASTERN MISSOURI
454 Whittier Street
St. Louis, Missouri 63108
Phone: [phone]
Fax: [phone]
DANIEL MACH
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
915 15th Street NW
Washington, DC 20005
Phone: [phone]
FAX: [phone]
Attorneys for Plaintiff

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CERTIFICATE OF SERVICE
I hereby certify that on February 25, 2013, I electronically filed the foregoing with
the Clerk of the Court using the CM/ECF system and a copy was made available
electronically to all electronic filing participants.
/s/ Anthony E. Rothert

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