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)

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

About.com:
Paranormal Phenomena (paranormal.about.com), a viewpoint-neutral portal to news and
discussions of paranormal issues; (b) All About Spirituality (www.allaboutspirituality.org), a
website discussing from a neutral viewpoint numerous topics in spirituality, including angels,
astrology, meditation, paganism, shamanism, and yoga; (c) Astrology.com
(www.astrology.com), a website discussing astrology and offering horoscope readings and
similar services; (d) The Church and School of Wicca (www.wicca.org), the official homepage
of the Wiccan Church; (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; (f) Encyclopedia of Death and Dying (www.deathreference.com),
containing viewpoint-neutral discussions of various cultures and religions ideas of death and
death practices; (g) Wikipedia: Wicca (en.wikipedia.org/wiki/Wicca), a viewpoint-neutral
discussion of the Wiccan Church; and (h) WitchVox (www.witchvox.com), 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 (http://www.northforest.org/ChristianTopics/Astrology.html), a discussion of astrology
Catholic Encyclopedia: Paganism
(www.newadvent.org/cathen/11388a.htm), 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
www.witchvox.com. 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? (www.gotquestions.org/voodoo-Bible.html), 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
http://www.ala.org/ala/issuesadvocacy/intfreedom/librarybill/index.cfm (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
http://www.ala.org/aboutala/governance/policymanual/updatedpolicymanual/section2/53intellfre
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., www.witchcraft.com), but other times only unblocked single pages to some websites (e.g.,
www.deathrefrence.com/Me-Nu/Native-American-Religion.html and
www.crystalinks.com/sundance.html), 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: [phone]
Fax: [phone]
DANIEL MACH
AMERICAN CIVIL LIBERTIES
FOUNDATION
915 15th Street NW
Washington, DC 20005
Phone: [phone]
FAX: [phone]

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