Parents, Families, and Friends of Lesbians and Gays, Inc. et al v. Camdenton R-III School District et al

Filing 28

MOTION for leave to file supplemental suggestions in support of motion for preliminary injunction filed by Anthony E. Rothert on behalf of All Plaintiffs. Suggestions in opposition/response due by 9/16/2011 unless otherwise directed by the court. (Attachments: # 1 Supplement Supplemental Suggestions in Support of Motion for Preliminary Injunction, # 2 Affidavit Declaration of Jane Doe)(Rothert, Anthony)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

Parents, Families, and Friends of Lesbians
and Gays, Inc., et al.,

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Plaintiffs,
v.
Camdenton R-III School District, et al.,
Defendants.

No. 2:11-cv-04212-NKL

SUPPLEMENTAL SUGGESTIONS IN SUPPORT OF
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
This action was originally brought by organizations that wish to communicate
with students through Internet websites that are blocked by Defendant Camdenton R-III
School District’s (“the District’s” or “Camdenton R-III’s”) viewpoint-discriminatory
filter for “sexuality.” In the Amended Complaint, Plaintiff Jane Doe also asserts that the
District’s viewpoint-discriminatory filter violates her own First Amendment rights as a
student at Camdenton High School. Plaintiffs submit the following Supplemental
Suggestions in Support of Plaintiffs’ Motion for Preliminary Injunction to explain Jane
Doe’s standing to bring her own constitutional claims and the independent First
Amendment harm she suffers as a result of Camdenton R-III’s viewpoint-based filtering
of websites supportive of lesbian, gay, bisexual, and transgender (“LGBT”) individuals
and their rights in the school library.

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I.

Jane Doe Has Standing To Challenge Camdenton R-III’s Viewpoint-Based
Censorship of Internet Materials.
As a student at Camdenton High School, Doe has standing to challenge the

district’s restriction of Internet resources and other library materials. See, e.g., Bd. of
Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 856 (1982)
(plurality) (noting that plaintiffs were students in the district’s high school and junior
high school); Pratt v. Indep. Sch. Dist. No. 831, Forest Lake, Minn., 670 F.2d 771,
773 (8th Cir. 1982) (same); Case v. Unified Sch. Dist. No. 233, Johnson County, Kan.,
895 F. Supp. 1463, 1468 (D. Kan. 1995) (finding standing for students enrolled in
schools in which library materials were removed).
Doe has used and plans to continue to use computers in the Camdenton High
School library to access information on the Internet. Doe Decl. ¶ 4. Although Doe is
straight, she has several friends who are gay or bi-sexual students. Id. at ¶ 6. Doe has
witnessed her friends being teased, taunted, and called names because other kids think
they might be gay, and she also has been taunted herself just for being supportive of her
gay friends. Id. at ¶ 8. Doe would like to be able to use computers in the library to
access information on the Internet that would help her support her friends, but many
websites that are supportive of gay and lesbian people are blocked at her school.
Id. at ¶ 10. More generally, Doe wants to be able to access information on diverse ideas
and issues, including information about lesbian, gay, bi-sexual, and transgender people,
but is prevented from doing so by the District’s software blocking sites on the Internet.
Id. at ¶ 11.

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II.

The Viewpoint-Discriminatory “Sexuality” Filter Violates Jane Doe’s Right
to Receive Ideas.
By discriminatorily blocking access to Internet websites based on viewpoint,

Camdenton R-III has unconstitutionally burdened the right of Doe and other Camdenton
R-III students to receive ideas. In Pico, the Supreme Court held that students have a First
Amendment right to receive ideas and that those rights are “directly and sharply
implicated by the removal of books from the shelves of a school library.” Pico, 457 U.S.
at 867 (plurality). Even before Pico was decided, students’ rights to receive information
had already been recognized by the Eighth Circuit in Pratt. The court in Pratt held that a
school district violated students’ First Amendment rights by censoring a film adaptation
of Shirley Jackson’s short story, “The Lottery.” The court explained: ““The Lottery” is
not a comforting film. But there is more at issue here than the sensibilities of those
viewing the films. What is at stake is the right to receive information and to be exposed
to controversial ideas -- a fundamental First Amendment right.” Pratt, 670 F.2d at 779.
Students’ First Amendment rights to receive ideas on a nondiscriminatory basis
are at their peak in the context of a school library. “[T]he special characteristics of the
school library make that environment especially appropriate for the recognition of the
First Amendment rights of students.” Pico, 457 U.S. at 868. The school library is “the
principal locus” of students’ freedom “‘to inquire, to study and to evaluate, to gain new
maturity and understanding.’” Id. at 869 (quoting Keyishian v. Bd. of Regents, 385 U.S.
589 (1967)); accord Minarcini v. Strongsville City School Dist., 541 F.2d 577, 583 (6th
Cir. 1976) (a school library “is a mighty resource in the free marketplace of ideas”).
Although public schools have wide discretion in deciding what ideas to communicate to
students as part of the school curriculum, that discretion does not extent “beyond the

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compulsory environment of the classroom, into the school library and the regime of
voluntary inquiry that there holds sway.” Pico, 457 U.S. at 869.
Students’ rights to access ideas in a school library apply with full force even if
those viewpoints are about “sexuality.” Indeed, courts have repeatedly invalidated
attempts to restrict students and minors’ access to library materials simply because those
materials express support for LGBT people. See Sund v. City of Wichita Falls, Tex., 121
F. Supp. 2d 530, 549 (N.D. Tex. 2000) (city sought to restrict access to Heather Has Two
Mommies and Daddy’s Roommate); Case, 895 F. Supp. at 1468 (school district sought to
remove Annie on My Mind, a book about a romantic relationship between two 17-yearold girls). The First Amendment protects the right of Doe and other students to access
LGBT-supportive viewpoints just as strongly as it protects their right to access
information about other issues in the marketplace of ideas.
III.

The “Sexuality” Filter Unconstitutionally Burdens Jane Doe’s First
Amendment Rights Even if the District Unblocks Individual Websites Upon
Request.
In order to justify its viewpoint-based censorship of LGBT-supportive websites,

Camdenton R-III must “establish that a substantial and reasonable governmental interest
exists for interfering with the students’ right to receive information. Bare allegations that
such a basis existed are not sufficient.” Pratt, 670 F.2d at 777 (citations omitted); see
also Minarcini, 541 F.2d at 582 (explanation for removal must be “neutral in First
Amendment terms”). For the reasons set forth in Plaintiffs’ Suggestions in Support of
Plaintiffs’ Motion for Preliminary Injunction, there is no legitimate interest -- much less a
substantial and reasonable one -- served by Camdenton R-III’s filtering system, which

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discriminates on the basis of viewpoint and is inconsistent with the traditional role of
school libraries.
Camdenton R-III has indicated a willingness to unblock individual LGBTsupportive websites upon request. Doc. # 7-7, Letter of June 6, 2011, from B. Helfrich to
A. Rothert. But requiring Doe and other students to specifically request access to
particular viewpoints substantially burdens their First Amendment rights. The First
Amendment requires courts to apply “the most exacting scrutiny,” not only to outright
bans, but also “to regulations that suppress, disadvantage, or impose differential burdens
upon speech because of its content.” Turner Broadcasting, Inc. v. FCC, 512 U.S. 622,
641 (1994); see also Denver Area Educ. Tel. Consortium, Inc. v. FCC, 518 U.S. 727, 819
(1996) (Kennedy, J., concurring in part and dissenting in part) (“[F]ew of our First
Amendment cases involve outright bans on speech.”).
Courts have therefore repeatedly found that students’ right to receive information
is unconstitutionally burdened by partial restrictions on access as well as complete bans.
For example, in Sund, the court explained why removing children’s books with certain
objectionable viewpoints from the children section to the adult section of a library
unconstitutionally burdened minors’ First Amendments rights:
By authorizing the forced removal of children’s books to the adult section
of the Library, the [city’s resolution] places a significant burden on
Library patrons' ability to gain access to those books. Children searching
specifically for those books in the designated children's areas of the
Library will be unable to locate them. In addition, children who simply
wish to browse in the children's sections of the Library will never find the
censored books.
Sund, 121 F. Supp. 2d at 550. Similarly, in Counts v. Cedarville School Dist., 295 F.
Supp. 2d 996, 999 (W.D. Ark. 2003), the court held that the school district violated

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students’ First Amendment rights by requiring that students obtain parental permission
before accessing copies of Harry Potter books in the school library.
Even more importantly, restricting access to library materials based on viewpoint
imposes a stigma on the disfavored viewpoints and chills students from accessing those
materials. As the Eighth Circuit explained in Pratt, the “symbolic effect” of removing
materials can be just as effective as an outright ban: “The board has used its official
power to perform an act clearly indicating that the ideas contained in the films are
unacceptable and should not be discussed or considered. This message is not lost on
students and teachers, and its chilling effect is obvious.” Pratt, 670 F.2d at 779; accord
Sund, 121 F. Supp. 2d at 551 (restriction on access “attaches unconstitutional stigma to
the receipt of fully-protected expressive materials”); Counts, 295 F. Supp. 2d at
999 (restriction on access sends stigmatizing message that Harry Potter is “a ‘bad’
book”).
The chilling effect of this stigma is especially severe in the context of LGBTsupportive materials. Students have a constitutionally protected privacy interest in not
being forced to disclose information about their sexual orientation: “It is difficult to
imagine a more private matter than one’s sexuality and a less likely probability that the
government would have a legitimate interest in disclosure of sexual identity.” Sterling v.
Borough of Minersville, 232 F.3d 190, 196 (3d Cir. 2000). Yet, by requiring students to
specifically request access to LGBT-supportive websites, Camdenton R-III effectively
requires students to surrender that privacy interest in order to access information they are
already entitled to receive. Students could reasonably fear that requesting access to an

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LGBT-supportive website would effectively “out” them as LGBT to school
administrators -- and possibly to their peers as well.
Indeed, even Jane Doe, who is straight, states that she would not feel comfortable
requesting access to a website that is supportive of LGBT people to be unblocked
because she is afraid doing so will draw attention to her and make her the subject of
further taunting. Doe Decl. ¶ 12. By declaring “sexuality” websites to be presumptively
off-limits, Camdenton R-III marginalizes students like Jane Doe who wish to access
LGBT-supportive viewpoints and makes it more likely that such bullying or teasing will
take place. Cf. Denver Area Educ. Tel. Consortium, Inc. v. FCC, 518 U.S. 727, 754
(1996) (explaining in the context of access to cable television that requiring customers to
submit “written notice” in order to access certain channels “will further restrict viewing
by subscribers who fear for their reputations should the operator, advertently or
inadvertently, disclose the list of those who wish to watch the ‘patently offensive’
channel”). Imposing these unequal burdens and stigma on selected viewpoints is just as
invidious as complete ban.
CONCLUSION
For all these reasons, and for the reasons set forth in Plaintiffs’ Suggestions in
Support of Plaintiffs’ Motion for Preliminary Injunction, this Court should issue a
preliminary injunction to prevent the irreparable harm that Camdenton R-III’s
discriminatory filtering system is causing to the First Amendment rights of Jane Doe and
the other plaintiffs in this action.

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Respectfully Submitted,

By

/s/ Anthony E. Rothert
Mark Sableman #36276
A. Elizabeth Blackwell #50270
THOMPSON COBURN LLP
One U.S. Bank Plaza
St. Louis, Missouri 63101
314-552-6000
FAX [phone]
[e-mail]
[e-mail]

Anthony E. Rothert, # 44827
Grant R. Doty, # 60788
American Civil Liberties Union of Eastern Missouri
454 Whittier Street
St. Louis, Missouri 63108
314-652-3114
FAX [phone]
[e-mail]
[e-mail]
Joshua A. Block
James Esseks
LGBT Project
ACLU Foundation
125 Broad Street, Floor 18
New York, New York 10004
[phone]
FAX [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE
I hereby certify that on August 30, 2011, I electronically filed the foregoing with
the Clerk of the Court using the CM/ECF system, which sent notification of such filing to
the following:
Thomas A. Mickes
Betsey A. Helfrich
MICKES GOLDMAN O’TOOLE, LLC
555 Maryville University Drive
Suite 240
St. Louis, Missouri 63141
Attorneys for Defendants
Camdenton R-III School District
and Timothy E. Hadfield

/s/ Anthony E. Rothert

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