Hunter v. Salem, Missouri, City of et al

Filing 65

MEMORANDUM in Support of Motion re 54 MOTION for Summary Judgment filed by Plaintiff Anaka Hunter. (MCB)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION ANAKA HUNTER, Plaintiff, v. BOARD OF TRUSTEES, SALEM PUBLIC LIBRARY, et al., Defendants. ) ) ) ) ) No. 4:12-CV-4 ERW ) ) ) ) ) MEMORANDUM IN SUPPORT OF PLAINTIFF S MOTION FOR SUMMARY JUDGMENT I. Introduction of blocking Internet content based on viewpoint is unconstitutional under the Free Speech Clause and Establishment Clause of the First Amendment. In July 2010, the Plaintiff began researching Native American tribes and their spirituality at the Salem Public Library. While conducting Internet research on the libr she wanted to access were blocked by the filtering software as o SUMF at ¶ 19. websites criminal skills. Id. at ¶¶ 20-21. In contrast, patrons seeking access to websites about mainstream religions faced no such barriers. Id. at ¶¶ 105-108. Hunter brought the improper viewpoint-discriminatory filtering to the attention of Glenda Wofford and the Board of Trustees for the Salem Public Library. Id. at ¶¶ 22, 50-51. Her initial complaint elicited from Wofford and the Board a refusal to do anything. Id. at ¶¶ 23-24, 51-52. Subsequent efforts, including reaching out to the State Library, resulted in a visits to the library, research, complaints and interactions with people (id. 1 at ¶ 28), and temporary unblocking of some web pages. Id. at ¶¶ 35-38. Despite having the capability to permanently disable the entire web filtering system, the filters, websites, or web pages (id. at ¶¶ 33, 84, 87, 88, 91), Wofford never did so for Hunter. Id. at ¶ 33. Plaintiff challenges the policy, practice, and custom in effect when, beginning in July 2010, she conducted research at the Salem Public Library. She seeks nominal damages for the past violation of her constitutional rights and a permanent injunction preventing Defendants from employing an unconstitutional filtering policy, practice, or custom in the future. II. Summary judgment standard This Court should grant summary judgment to Plaintiff because, viewing the uncontroverted evidence in the light most favorable to Defendants, there is no genuine issue of material fact and Plaintiff is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Grey v. City of Oak Grove, 396 F.3d 1031, 1034 (8th Cir. 2005). The moving party has the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once that burden is met, the nonmoving party must come forward and establish specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. summary judgment has the burden of demonstrating the absence of any genuine issue of material fact, a nonmoving party may not rest upon mere denials or allegations, but must instead set forth Rose-Matson v. NME Hospitals, Inc., 133 F.3d 1104, 1107 (8th Cir. 1998). of Uncontroverted Material Facts, which is filed herewith, there are no disputed material facts in this case. As a result, this case turns on questions of law. 2 III. Count I Free Speech Clause ongress shall make no Neighborhood Enterprises, Inc. v. City of St. Louis, 644 F.3d 728, 736 (8th Cir. 2011)(quoting U.S. CONST. AMEND. I). The First Amendment applies to the states and their subdivisions through the Fourteenth Amendment. See Gitlow v. New York, 268 U.S. 652, 666 (1925); Lovell v. City of Griffin, Ga., 303 U.S. 444, 450 (1938). beyond what is required by the C or MO. REV. STAT. § 182.827.3, harmed Plaintiff because she was both prevented from accessing and deterred from seeking access to constitutionally protected content. The Supreme Court has recognized in a variety of contexts, including libraries, that the constitutional Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 866-67 (1982)(citing Stanley v. Georgia, 394 U.S. 557, 564(1969)); Kleindienst v. Mandel, 408 U.S. 753, 762-63 (1972)). It is that right Plaintiff seeks to vindicate here. Supreme Court precedent does not tolerate the use of filters to engage in intentional viewpoint discrimination. In ALA fractured Supreme Court r ls and libraries receiving certain federal funds use filtering software to block access to pornographic websites. A plurality opinion joined by four Justices concluded that Internet access at public libraries is not a traditional public forum, and, thus, the law was not subject to heightened judicial scrutiny. ALA, 539 U.S. at 205-06 (plurality). Instead, the plurality reasoned that the purpose of a library is to facilitate research, learning, and recreational pursuits by 3 furnishing materials of requisi to make content-based decisions in determining which materials meet those criteria. Id. at 206. itable and site individually. Id. at 208.1 The reasoning of the ALA decision in Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853 (1982) (plurality). n to make content-based judgments when selecting ALA, 539 at 211, is analogous to the discretion of a school official to remove books based on legitimate criteria Pico, 547 U.S. at 871. Just as in Pico, that discretion to make content-based decisions in applying legitimate selection criteria does not also empower school or public librarians to censor otherwise appropriate materials through viewpoint discrimination. See ALA, 539 U.S. at 236 because their authors are Democrats or their critiques of organized Christianity are see also Am. Council of the Blind v. Boorstin, 644 F. Supp. 811, 816 (D.D.C. 1986) (holding that 1 As described below, the post-ALA cases refer to the plurality opinion. The narrower concurring opinions of Justice Kennedy and Justice Breyer, which require that improperly blocked sites be unblocked immediately, would seem to be controlling. See Marks v. United States rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the 4 Librarian of Congress impermissibly removed Braille from member of Congress).2 Thus, although the ALA plurality upheld the constitutionality of reasonable and viewpoint-neutral web filtering, nothing in ALA supports the constitutionality of viewpoint-based web filters like those employed here. Unlike the removal decision in Pico, none of the filtering practices considered in ALA discriminated on the basis of viewpoint. As the Solicitor General basis o Br. of Solicitor General in ALA, 2003 WL 145228, at *31 (2003) (citation omitted); see also id ALA argued that those viewpoint-neutral filters for -pornographic websites, but there was no allegation that the filtering software treated websites about sexuality differently based on the viewpoints 2 The distinction between legitimate content-based selection criteria and illegitimate viewpoint discrimination is also reflected in the subsidized-speech cases cited in the plurality opinion. For example, the Court in , 524 U.S. 569 (1998), reaffirmed that Id. at 587 (internal quotation marks and citations omitted). The National Endowment for Arts may therefore use content-based criteria such as artistic merit Finley, 524 U.S. at 582-83. Similarly, in Arkansas Educational , 523 U.S. 666 (1998), the Supreme Court held that a public broadcaster can use editorial discretion to make content-based distinctions when deciding which candidate to allow Id. at 676; see also id. at 682. In each of these cases, he Court recognized that it was essential to the functioning and traditional missions of the organizations involved in American Library Association, Forbes, and Finley to allow them to make value-based, and thus content-based -but not, importantly, viewpoint-based-decisions. ACLU v. Mineta, 319 F. Supp. 2d 69, 85 (D.D.C. 2004). 5 they expressed. See ACLU v. Mineta, 319 F. Supp. 2d 69, 86 (D.D.C. 2004) (explaining that, in ALA -based, the restriction was viewpoint- In this case, the library drew distinctions between mainstream religious viewpoints and non-mainstream religious viewpoints. Here the blocking is viewpoint discriminatory and not accidental. Extending ALA to sanction a viewpoint-based filtering system would be a dramatic and unprecedented restriction of speech. The Supreme Court has warned that viewpoint government targets not subject matter, but particular views taken by speakers on a subject, the Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995); accord , 460 U.S. 37, 62 (1983) (Brennan, J., dissenting The government thus bears a much heavier burden when justifying viewpoint discrimination. The Supreme Court has even stated that a compelling governmental interest that justifies content-discrimination might not be enough to justify discrimination on the basis of viewpoint. See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 112-based 3 3 See also R.A.V. v. St. Paul, 505 U.S. 377, 391 (1992) (even when speech may be criminalized viewpoint); id. at 430 restrictions on expression based on subject matter and restrictions based on viewpoint, indicating Finley, 524 U.S. at 587 (allowing NEA to make content-based decisions when awarding grants but not to discriminate on the basis of viewpoint); 6 In short, ALA Miller v. NW Region Library Bd., 348 F. Supp. 2d 563, 569 (M.D.N.C. 2004). Web filtering must still satisfy the minimum requirements of reasonableness and viewpoint neutrality that apply to other library removal decisions. In the time since ALA, appellate courts in California and Washington and the United States District Court for the Western District of Missouri have considered the constitutionality of library policies restricting Internet access. Each court expressly adopted the reasoning of the ALA plurality while at the same time reaffirming that such policies must be reasonable and viewpoint-neutral. In Bradburn v. N , 231 P.3d 166 (Wash. 2010), the Washington Supreme Court considered an issue left open in ALA: whether a library must unblock the filter for pornography upon request. The library in Bradburn would unblock individual websites if the sites were accidentally blocked by the pornography filter, but the library refused to disable the entire pornography filter for individual users upon request. The Bradburn court endorsed the reasoning of the ALA plurality and held that the Washington Bradburn, 231 P.3d at 180 Id. (citing Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)). The court also reasoned that the pornography filte Id. In light of that traditional mission, the court concluded that a public Boos v. Barry, 485 U.S. 312, 319 (1988) (distinguishing between discrimination based on content and discrimination based on viewpoint). 7 clude adult-oriented material such as pornography in its collection. This same discretion continues to exist with Id. at 181. In Crosby v. South Orange County Cmty. Coll. Dist., 172 Cal. App. 4th 433 (2009), the California Court of Appeal applied the same standard when it considered the constitutionality of a library policy restricting Internet access court adopted the reasoning of the ALA Crosby, 172 Cal. App. 4th at 437; accord id. at 443 (concluding that the Most closely analogous to this case is Parents, Families, & Friends of Lesbians & Gays, Inc. v. Camdenton R-III Sch. Dist. PFLAG PFLAG, a school district maintained an Internet filter that blocked favorable information about LGBT issues to be viewed without interference. Id. at 891-92. The court held that Pico, not ALA, provides the correct standard of scrutiny because the library did not decide to exclude all resources on the subject of LGBT issues, but rather employed an Internet filter to exclude one viewpoint on the subject. Id. at 901. But the court also noted that, even under the ALA plurality , websites expressing a positive viewpoint toward LGBT individuals is reasonable in light of a Id. Further, the court determined that the availability of a procedure to request a website be unblocked did not cure the First Amendment problem, consistent with the plurality decision in ALA 8 a procedure, burdening only one viewpoint in a debate chills speech in a viewpoint- discriminatory fashion, which is the antithesis of the First Amendment. Id. at 898. Such a Id. These cases reflect the consensus view that restrictions on library Internet access must meet the basic requirements of reasonableness and viewpoint-neutrality. This Court should apply the same requirements when evaluating the filtering practices at issue here. The Netsweeper filters are different than the filtering systems previously considered by courts, other than PFLAG. Unlike other filters, but like the filter in PFLAG, occult filters that Defendants chose to employ (a) are not viewpoint-neutral, and (b) do not target content that is subject to CIPA. No court has upheld ering software with these two features, and this Court should not be the first. A. Salem Occult some viewpoints o Filter Is Not Viewpoint-Neutral Taxpayers for Vincent, 466 U.S. at 804; , 508 U.S. 384, 394 (1993); accord Bradburn, 231 P.3d at 180; PFLAG state actor is antithetical to the First Amendment, one of our country s most cherished a topic from [one] perspective, it may not shut out speech that discusses the same topic from [a Child Evangelism Fellowship of New Jersey Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 528 (3d Cir. 2004); cf. Byrne v. Rutledge, 623 F.3d 46, 56-57 (2d Cir. 2010) 9 operates not to restrict speech to certain subjects but instead to distinguish between those who seek to Many websites that Plaintiff attempted to access were blocked because of their inclusion in the c ies. SUMF at ¶ 21. ers used by Defendants systematically discriminate against websites supportive of minority religious views on the basis of viewpoint. Id. at ¶¶ 27, 40, 51, 104-111, 116-118. This viewpoint discrimination is different than the unintentional and viewpoint-neutral overblocking at issue in ALA. As explained above, in ALA the commercial filtering products used by public libraries dr[e]w distinctions based on whether the material f[ell] into a category such as Br. of Solicitor General in ALA, 2003 WL 145228, at *31(citation omitted); see also Bradburn, 231 P.3d at 180 (stating that perspective of . In contrast, Netsweeper, the Internet filtering solution used by Defendants, works by grouping large collections of websites together by category. SUMF at ¶¶ 73-75. Customers Id. at ¶¶ 78-79. When a category is blocked, users cannot view any website within that category. Only three Netsweeper categories are required to be blocked to comply with CIPA and Missouri law. Id. at ¶ 76. Defendants knew this. Id. at ¶ 77. Yet, Defendants chose to employ additional Id. at ¶¶ 97, 101-118. Plaintiff does not challenge the use of viewpoint-neutral filters designed to block pornography or other CIPA-related content. Instead, Plaintiff challenges filters, neither of which purports to target pornographic content or be related in any way to compliance with CIPA. 10 The filters employed here are viewpoint discriminatory. o category blocks 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 ced in the Id. at ¶ 107. The -mainstream beliefs such as Wicca and Native American Spirituality. Id. at ¶ 106.4 Some websites that Plaintiff attempted to access Id. at ¶ 21. Websites about mainstream religious beliefs such as Christianity, Judaism, and Islam are were never blocked. Id. at ¶ 108. Furthermore, views about Netsweeper also categorizes Internet content discussing these mainstream minority religions, religious practices, and beliefs as ei . 5 Id. 4 Paranormal Phenomena (, a viewpoint-neutral portal to news and discussions of paranormal issues; (b) All About Spirituality (, a website discussing from a neutral viewpoint numerous topics in spirituality, including angels, astrology, meditation, paganism, shamanism, and yoga; (c) (, a website discussing astrology and offering horoscope readings and similar services; (d) The Church and School of Wicca (, the official homepage of the Wiccan Church; (e) Cult FAQ (, a viewpoint-neutral discussion of the cult phenomenon, including links to resources such as counseling and support for cult (ex-) members and their families; (f) Encyclopedia of Death and Dying (, containing viewpoint-neutral discussions of various cultures and religions ideas of death and death practices; (g) Wikipedia: Wicca (, a viewpoint-neutral discussion of the Wiccan Church; and (h) WitchVox (, an overview of pagan belief systems, such as Druidism, Haitian Voodoo, Neopaganism, and Wicca. SUMF at ¶ 105. 5 The viewpoint discrimination was especially insidious because, while blocking nonmainstream religious viewpoints about religion, Defendants did not block mainstream religious views about non-mainstream beliefs. Astrology and Horoscopes: The Bible and Christian View (, a discussion of astrology Catholic Encyclopedia: Paganism (, a discussion of Paganism from a Catholic viewpoint, 11 Therefore, b and viewpoint discrimination against non-mainstream religions and beliefs. Id. at ¶¶ 27, 40, 51, 104-111, 116-118. This viewpoint discrimination is like the unconstitutional viewpoint discrimination in . The public school in allowed its facilities to be used by outside organizations for films and lectures, but refused to allow a Christian group to show a film series that discussed family values from a Christian perspective. The Supreme Court held that the exclusion constituted viewpoint discrimination because the subject matter of family and child- Chapel, 508 U.S. at 393. Id. In this case, the roles are reversed but the viewpoint discrimination remains the same. religion Library patrons could Christian, Jewish, or Muslim perspectives, but were blocked from receiving information about non-mainstream religions. SUMF at ¶¶ 104-111. What is more, for example, library patrons were allowed to access the Catholic view of Paganism, but not a viewpoint-neutral discussion at Id. at ¶¶ 105, 108. Defendants engaged in viewpoint discrimination that was not necessary, and Defendants knew it was not necessary, to achieve a compelling government interest. Id. at ¶¶ 56-68, 76-77, 101-102, 113-114. Accordingly, Plaintiff should be granted summary judgment against Defendants on Count I. Christian Paranormal Answers What does the Bible say about Voodoo? (, a discussion of Voodoo from a Christian 108. 12 B. reasonable in light of the traditional role of libraries. Defendants decision to use the discriminatory filters is not reasonable in light of the traditional role of a library. See Legal Services Corp. v. Velazquez, 531 U.S. 533, 543 (2001) uses or attempts to regulate a particular medium, [courts] have been informed by its accepted usage in determining whether a particular restriction on speech is 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. SUMF at ¶ 16. 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, 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. Id. When the Supreme Court in ALA upheld the facial constitutionality of a statute requiring libraries to filter pornographic web content, the plurality noted that the filtering did not distort libraries have traditionally excluded ALA, 539 U.S. at 212 (plurality). Similarly, in Bradburn, the Washington Supreme Court 13 the authority . . . to legitimately decline to include adult-oriented material such as pornography in Bradburn, 231 P.3d at 817. There is no similar tradition of libraries censoring particular viewpoints or excluding materials that provide viewpoint-neutral or positive information about non-mainstream religions. SUMF at ¶¶ 16-17. content required by CIPA. Id. at ¶¶ 56-68, 76-77, 101-102, 113-114. The decision to track and to the accepted public library standard. Id. at ¶¶ 28-29. The American Library Library Bill of Rights reinforces this view.6 SUMF at ¶ 17. Article II of the Library Bill of Rights Id.; ALA, Library Bill of Rights (available at (last visited Feb. 22, 2013)). because of origin, age, Id. Indeed, rather than engaging in viewpoint ibraries should challenge censorship in the fulfillment of their responsibility SUMF at ¶ 17; Library Bill of Rights. Similarly, resources that reflect a diversity of political, economic, religious, social, minority, and sexual 6 Defendants recognize the validity of the ALA Library Bill of Rights. SUMF at ¶¶ 17-18. The Salem Public Library Statement on Intellectual Freedom incorporates the Library Bill of Rights into its own Bylaws. Id. 14 efforts that systematically exclude materials dealing with any subject matter, including sex, ALA. ALA Policy Manual (available at edom (last visited Feb. 22, 2013)). filters long after being given notice by Plaintiff of the viewpoint-discrimination. Plaintiff first brought the viewpoint-discriminatory blocking to the attention of Wofford in or about July 2010. SUMF at ¶¶ 22-23. Wofford responded websites by saying that there was nothing she could do and that it was up to the filtering system , and which websites library patrons could view. Id. at ¶ 24. she knew they were not true. Id. at ¶¶ 78-96.7 Hunter then called Barbara Reading at the Missouri State Library in October 2010 to complain about viewpoint- discriminatory web filtering. Id. at ¶ 25. Reading then called Wofford on October 29, 2010. Id. at ¶ 26. During this call Reading articulated to Wofford that Hunter complained about Salem Id. at ¶ 27. After receiving a call from Barbara Reading, Library Development Director at the Missouri State Library, Wofford met with Plaintiff in the library meeting room for approximately fifty minutes that same day and explained that Wofford could override the filter allowing Plaintiff to view websites currently 7 Wofford and the Board had policymaking authority to determine which categories to block or unblock. SUMF at ¶96. Wofford had the ability to permanently or temporarily change the blocked category list, permanently or temporarily unblock individual websites, and permanently or temporarily unblock web pages (and had done so previously). Id. at ¶¶ 78-96. The library and Wofford had complete control over filtering configuration and implementation, knew they had complete control, and had a policy that overblocked content well beyond what is required by CIPA that resulted in discrimination by unnecessarily filtering out specific viewpoints within topics or categories. Id. at ¶ 78-118. 15 blocked. RFA. Id. at ¶¶ 30-31. Subsequent to her discussion with Wofford, Plaintiff again sought to have particular websites pertaining to Native Americans unblocked. Id. at ¶ 32. Despite having the capability to permanently unblock the filters or websites or web pages, neither Wofford nor any other Salem Public Library employee Id. at ¶ 33. Despite having the capability to temporarily unblock entire websites for up to one hour, neither Wofford nor any unblock Internet content. Id. at ¶ 34. Instead, they only unblocked some websites for short periods. Id. at ¶¶ 35-37. Furthermore, i requests to unblock Internet content, Wofford or other Salem Public Library employees sometimes unblocked entire domains (e.g.,, but other times only unblocked single pages to some websites (e.g., and, which caused other sections of those same websites to remain blocked. Id. at ¶ 38. It was the custom, policy, and practice of Defendants to require Plaintiff to repeatedly request overblocked Internet content be unblocked. Id. at ¶ 39. It was also the Defendants policy, practice, and custom to impose substantial burdens for patrons seeking to unblock Internet content that was over blocked by the Salem Public Li . Id. at ¶ 119. Subsequently, Hunter raised the issue of filtering again with Wofford, telling Wofford that the viewpoint-discriminatory filtering of the Internet content she tried to view was improper and burdensome and that the classification of Native American cultural and religious history and Id. at ¶ 40. 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 16 to view the content. Id. at ¶ 41.8 Additionally, Wofford also told Plaintiff that Wofford had an blocked sites if she thought they would misuse the information they were attempting to access. Id. at ¶ 43. hat 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. Id. at ¶ 44.9 Plaintiff also notified the Board. At the Salem Library Board Meeting on November 8, 2010, Plaintiff voiced her concerns about the viewpoint-discriminatory filtering to the Board. Id. at ¶¶ 50-51. There Plaintiff raised the issue about the policies, practices, and customs that block religious content based upon its viewpoint. Id. at ¶ 51. She stated that the filtering was unfair. Id. A member of the Board responded to Plaintiff that the Library s Internet Content Filtering sy Id. at ¶ 52. In spite of knowledge, t place until August 1, 2011. Id. at ¶¶ 97-98. When a public library chooses to restrict Internet resources, it must select a reasonable and viewpoint-neutral method of doing so. Defendants cannot demonstrate that their decisions to 8 ernet system is a privilege which can be revoked by the library at any time for abusive conduct[,] [with the] Salem Public Library [as] the sole arbiter of what SUMF at ¶ 42. 9 On or about December 9, 2010, Wofford did call complaints regarding Internet filtering. SUMF at ¶ 45. When the police came to the Salem activities and research at the Salem Public Library between October and December 2010. Id. at ¶ 46. Prior to Wofford calling the Salem Police, Hunter had last visited the library on December 2, 2010. Id. at ¶ 47. After the Salem Police were called on December 9, 2010, Hunter has chosen not returned to the Salem Public Library. Id. at ¶ 48. 17 occult filters were reasonable methods of complying with CIPA and cannot demonstrate that it had a sufficiently compelling reason to justify viewpoint discrimination. Id. at ¶¶ 56-68, 76-77, 101-102, 113-114. Blocking websites that Netsweeper Act or by MO. REV. STAT. § 182.827.3. Id. traditional role of libraries, so Plaintiff is entitled to summary judgment on Count I. C. Sale Mainstream Religious Viewpoints Despite a Procedure Allowing Individual Webpages to Be Temporarily Unblocked Upon Request It is no defense for Defendants that they required a patron request before they temporarily unblocked individual websites. Requiring Plaintiff and others who seek positive information about non-mainstream religions to make repeated requests to the library for websites to be unblocked (and then only temporarily) stigmatizes and places a burden on Plaintiff s right to receive information. SUMF at ¶¶ 22-24, 32-48, 50-52 119; See PFLAG, 853 F. Supp. 2d at 89495. their audiences before advancing p Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 80 (1983) (Rehnquist, J., concurring); see also Watchtower Bible v. Vill. of Stratton, 536 U.S. 150, 166 (2002) (requiring a permit -- even one granted without cost or waiting period - as a prior condition on the exercise of the right to speak imposes a burden on speech); Lamont v. Postmaster General, 381 U.S. 301, 307 (1965) (requirement that individuals request permission to receive mail on disfavored subjects had an unconstitutio First Amendment right to receive information). Requiring library patrons to request special access to websites about non-mainstream religions sends a stigmatizing message that the 18 websites are somehow different or less acceptable than comparable websites that condemn nonmainstream religions. See Pratt, 670 F.2d at 779 (by restricting access to films, the school had contained in the films a Counts v. Cedarville Sch. Dist., 295 F. Supp. 2d 996, 999 (W.D. Ark. 2003) (requiring student to students should not read); PFLAG To be sure, the plurality in ALA mistakenly blocked non-pornographic content, there are no constitutional concerns if library patrons can request that the filter be turned off. But the intentional and avoidable viewpoint discrimination practiced by Defendants is very different than the unintentional and unavoidable over-blocking at issue in ALA. Unlike the pornography filters at issue in ALA, neither the criminal skills s targets pornographic content; rather, they operate in a manner that blocks content supportive of non-mainstream religions even though the content is not sexually explicit. Moreover, at the time ALA was decided, there was no alternative filtering technology that could efficiently block pornographic websites without over-blocking the protected content. See ALA presented any clearly superior or better fitting alternative id. at 207 n.3 (plurality). In light engaged in unavoidable over-blocking. Id. at 208. Unlike the libraries in ALA, Salem Public Library has readily available alternatives that would allow it to filter out sexually explicit 19 content, as required by CIPA, without posing the same First Amendment problems. SUMF at ¶ 76. ALA noted that an individual could request that a filter be disabled. Yet despite Plaintiff requests to conduct research into Native American spirituality without viewpoint filtering or the burden of having to repeatedly ask to have individual sites unblocked (id. at ¶¶ 22-24, 32, 35-40), and despite the library having the capability to permanently unblock the filters, neither Wofford nor any other Salem Public Library employees ever did so for Hunter. Id. at ¶ 33. Instead, Defendants imposed substantial burdens for patrons seeking to unblock Internet content that was over blocked by the Salem Public CF (id. at ¶ 119) and then, at best, access to specific websites was sporadically, and only temporarily, allowed. Id. at ¶¶ 35-38. * * * Defendants engaged in intentional viewpoint discrimination that did not further a compelling government interest. Accordingly, Plaintiff is entitled to summary judgment on Count I of her complaint. IV. Count II Establishment Clause aw U.S. CONST., AMDT. 1. The Religion Clauses apply to the States by incorporation into the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 8 fn.4. (2004); Americans United for Separation of Church & State v. Prison Fellowship Ministries, Inc., 509 F.3d 406, 423 (8th Cir. 2007)(citing Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301 (2000)); ACLU Nebraska Found. v. City of Plattsmouth, Neb., 419 F.3d 772, 775 (8th Cir. 2005). 20 In this case, Defendants intentionally maintained a filtering practice that blocked access to information about non-mainstream religions while permitting access to information about mainstream religions. SUMF at ¶¶ 27, 40, 51, 104-111, 116-118. In addition, Defendants imposed substantial burdens for patrons seeking to unblock Internet content that was over blocked by the Salem Public Lib . Id. at ¶ 119. These policies, practices, and customs gave preferential treatment to mainstream religions and disfavorable treatment to non- command of denomination with preference over others. , 4:12-CV-476 CEJ, 2012 WL 4481208, *9 (E.D. Mo. Sept. 28, 2012)(quoting Larson v. Valente, 456 U.S. 228, 244 (1982)). See, e.g., Awad v. Ziriax, 670 F.3d 1111, 1127 (10th Cir. 2012) (quoting Larson even meet the test of reasonableness, let alone satisfy strict scrutiny. It, therefore, fails under the Establishment Clause for that reason alone. s the traditional test from Lemon v. Kurtzman, 403 U.S. 602 (1971). A government practice is permissible for purposes of Establishment Clause analysis only if (1) it has a secular purpose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not foster an excessive entanglement Plattsmouth, 419 F.3d at 775 (citing Lemon, 403 U.S. at 612-13. Put another Lemon analysis, a statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause, must have a secular purpose; it must neither 21 advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive County of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 592 (1989). Lemon test a Commack Self-Serv. Kosher Meats, Inc. v. Hooker, 680 F.3d 194, 205 (2d Cir. 2012) -mainstream religious viewpoints while permitting mainstream religious viewpoints, including mainstream religious viewpoints about non-mainstream religions, and imposition of substantial burdens for patrons seeking to . violates the Establishment Clause. The undisputed facts here demonstrate that Defendants, with no valid, secular purpose, determined to advance mainstream religions and inhibit non-mainstream religions. Defendants have offered no secular purpose for their viewpoint-discriminatory blocking Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000)(citations omitted); see also, e.g., McCreary County, Ky. V. American Civil Liberties Union not merely seco . Here, the only evidence is that employment of or Missouri law. SUMF ¶¶ 56-68, 76-77, 101-102, 113-114. Wofford admits as much. Id. at ¶¶ 57-58, 6061, 76-77. In the absence of a non-sham secular purpose, the practice plainly violates the Establishment Clause. 22 Lemon see, e.g. Edwards v. Aguillard, 482 U.S Clause if it fails to satisfy any of [Lemon under Lemon The primary effect of the viewpoint-discriminatory filtering practice was both to advance mainstream religions and to inhibit non- through its own activities and influence. Am. Civil Liberties Union of Minnesota v. Tarek ibn Ziyad Acad., 788 F. Supp. 2d 950, 963 (D. Minn. 2011)(citing Stark v. Indep. Sch. Dist., No. 640, 123 F.3d 1068, 1074-75 (8th Cir. 1997)). Here the public library allowed patrons to access the When they accessed a website about a mainstream religion, patrons faced no barrier. Id. at ¶ 108. But when, like Plaintiff, they sought positive information about non-mainstream religions, they were blocked. Id. at ¶¶ 21, 105-107. Providing access to information about religion might be admirable as a general matter, but here Defendants were not neutral. The viewpoint-discriminatory blocking excessively entangled Defendants with religion. Agostini v. Felton, 521 U.S. 203, 233 (1997). Here, however, discretion was given to Wofford to mainstream religious viewpoint. SUMF at ¶¶ 11, 24, 31, 41-46, 80-96. Wofford had the authority and ability to permanently information with non-mainstream religious viewpoints could flow freely. Id. at ¶¶ 33, 84. She did not do so for Hunter. Id. at ¶ 33. Instead, Wofford warned Plaintiff that she had an blocked sites if she thought they would misuse the information they were attempting to access. 23 Id. at ¶¶ 43, 119. The employment of the filters by Defendants guaranteed an excessive entanglement between the government and religion. mainstream religious viewpoints and disfavorable treatment for other viewpoints. Id. at ¶¶ 101-118. Defendants have advanced no non-sham secular purpose for the practice, the practice had the effect of advancing mainstream religious viewpoints while inhibiting non-mainstream religious viewpoints, and the practice required Wofford to be excessively entangled with religion. For these reasons, Plaintiff is entitled to summary judgment on Count II of her complaint. V. Relief ght of every individual to Marbury v. Madison, 1 Cranch 137, 163 (1803). A. Nominal Damages An award of nominal damages is appropriate in this case. awarded wh Lowry ex rel. Crow v. Watson Chapel Sch. Dist., 540 F.3d 752, 762 (8th Cir. 2008)(internal citations omitted). violation of the , 416 F.3d 1216, 1222 (10th Cir. 2005). A party is entitled to an award of nominal damages when a constitutional right is violated Carey v. Piphus, 435 U.S. 247, 266 (1978); see also Farrar v. Hobby, 506 U.S. 103, 112 (1992) Carey obligates a court to award nominal damages when a plaintiff establishes the violation of his [constitutional] ri 24 B. Permanent Injunction To obtain a permanent injunction, Plaintiff must show the following: (1) actual success on the merits; (2) that she faces irreparable harm; (3) that the harm to her outweighs any harm to others; and (4) that an injunction serves the public interest. Bank One, Utah v. Guttau, 190 F.3d same as for a preliminary injunction, except that to obtain a permanent injunction the movant Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (preliminary injunction standards). 1. Actual Success on the Merits As explained, supra, Plaintiff is entitled to summary judgment on Counts I and II of her complaint. A grant of summary judgment constitutes actual success on the merits. 2. Irreparable Harm Plaintiff, and others, will suffer irreparable harm if an injunction does not issue. on August, 1, 2011, this was SUMF at ¶¶ 97-98. The change on August 1, 2011, was because MOREnet emailed Defendants to notify them that absent specific step by Defendants the filters would no longer be effective. Id. at ¶ 98. Absent an injunction, nothing prevents Defendants from reemploying the viewpoint-discriminatory filters. Id. at ¶¶ 97-100. It is well- of First Amendment freedoms, for even minimal periods Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion). Because Plaintiff has established success on the merits of her First Amendment claim, she has also established irreparable harm as a result of the deprivation. See Marcus v. Iowa Pub. Television, 97 F.3d 1137, 1140-41 (8th Cir.1996). 25 3. Balance of Harms nown others who were chilled. -protected Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008) overruled on other grounds by Phelps-Roper v. City of Manchester, Mo., 697 F.3d 678 (8th Cir. 2012). There is no harm to Defendants. Even though it took longer than a year, the offending filters have, for now, been disabled and not yet re-enabled. Prohibiting Defendants from returning to their unconstitutional conduct would impose no harm on them. 4. Public Interest Nixon, 545 F.3d at 689. Because Plaintiff has demonstrated that she is entitled to succeed on the merits, the public interest is served by preventing enforcement of the unconstitutional practice. The public interest supports an injunction that is necessary to prevent a government entity from violating the Constitution. Doe v. South Iron R-1 School Dist., 453 F.Supp.2d 1093, 1103 (E.D.Mo. 2006), aff'd 498 F.3d 878 (8th Cir. 2007). VI. Conclusion For the foregoing reasons, Plaintiff is entitled to summary judgment on Counts I and II of her complaint, an award of nominal damages, and a permanent injunction. Nominal damages should be in the amount of $1.00. The permanent injunction should prohibit Defendants from weeper so long as the content of those categories does not include sexually explicit material. 26 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: 314/652-3114 Fax: 314/652- 3112 DANIEL MACH AMERICAN CIVIL LIBERTIES FOUNDATION 915 15th Street NW Washington, DC 20005 Phone: (202) 675-2330 FAX: (202) 546-0738 UNION Attorneys for Plaintiff 27 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 28

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