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

Filing 54

REPLY SUGGESTIONS to motion re 6 MOTION for preliminary injunction filed by Mark S. Sableman on behalf of Plaintiffs Campus Pride, Inc., Dignity, Inc., Jane Doe, Matthew Shepard Foundation, Parents, Families, and Friends of Lesbians and Gays, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1A, # 3 Exhibit 1B, # 4 Exhibit 1C, # 5 Exhibit 2A, # 6 Exhibit 2B, # 7 Exhibit 3, # 8 Exhibit 4, # 9 Exhibit 5, # 10 Exhibit 6, # 11 Exhibit 7, # 12 Exhibit 8, # 13 Exhibit 9, # 14 Exhibit 10)(Related document(s) 6 ) (Sableman, Mark)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
Parents, Families, and Friends of Lesbians
and Gays, Inc., et al.
Plaintiffs,
v.
Camdenton R-III School District, et al.
Defendants.

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]

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Case No. 2:11-cv-04212
PLAINTIFFS’ REPLY
IN SUPPORT OF
MOTION FOR PRELIMINARY
INJUNCTION

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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TABLE OF CONTENTS
I.

Plaintiffs Are Likely to Prevail on the Merits...............................................................2
A.
B.

The District May Not Use a Filtering Database That Is
Designed to Suppress Particular Viewpoints About LGBT
People..................................................................................................................3

C.

The District’s Filtering Is Not Reasonable in Light of the
Purposes of the School Library. ........................................................................9

D.

II.

Plaintiffs Have Standing. ...................................................................................3

The District’s Policy of Anonymously Unblocking Websites on
Request Does Not Mitigate Its Infringement of First
Amendment Rights. .........................................................................................14

The Remaining Dataphase Factors Favor Entry of a Preliminary
Injunction.....................................................................................................................17
A.

Irreparable Harm ............................................................................................17

B.

Balance of Harms .............................................................................................18

C.

Public Interest ..................................................................................................19

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TABLE OF AUTHORITIES

Cases
Adam-Mellang v. Apartment Search, Inc., 96 F.3d 297 (8th Cir. 1996)......................................18
Am. United for Separation of Church and State v. Prison Fellowship, 509 F.3d
406 (8th Cir. 2007) ..........................................................................................................5
Ass’n of Relatives & Friends of AIDS Patients v. Regulations & Permits Admin.,
740 F. Supp. 95 (D. P.R. 1990)........................................................................................6
Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853
(1982)........................................................................................................................9, 15
Borger by Borger v. Bisciglia, 888 F. Supp. 97 (E.D. Wis. 1995) ..............................................10
Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961) ..........................................................5
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) ...........................................6
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) ................................10
Counts v. Cedarville Sch. Dist., 295 F. Supp. 2d 996 (W.D. Ark. 2003) ....................................14
Dailey v. City of Lawton, 425 F.2d 1037 (10th Cir. 1970)............................................................5
Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109 (8th Cir. 1981) ..............................17
Denver Area Educ. Tel. Consortium, Inc. v. FCC, 518 U.S. 727 (1996).....................................15
Elrod v. Burns, 427 U.S. 347 (1976) .........................................................................................17
Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988) ......................................................10
J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011) ......................................................................17
John Doe No. 1 v. Reed, 130 S. Ct. 2811 (2010)........................................................................16
Lawrence v. Texas, 539 U.S. 558 (2003) .....................................................................................8
Lee v. Weisman, 505 U.S. 577 (1992)........................................................................................16
Mainstream Loudoun v. Bd. of Trustees of Loudoun County Library, 24 F. Supp.
2d 552 (E.D. Va. 1998)....................................................................................................6
Palmore v. Sidoti, 466 U.S. 429 (1984) .......................................................................................5

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Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir. 2008) ..........................................................17, 18
Pittsburgh League of Young Voters Educ. Fund v. Port Auth. of Allegheny
County, 2011 WL 3374079 (3d Cir. Aug 05, 2011)................................................ 8, 9, 14
Planned Parenthood v. Rounds, 530 F.3d 724 (8th Cir. 2008) .....................................................2
Pratt v. Indep. Sch. Dist. No. 831, Forest Lake, Minn. 670 F.2d 771 (8th Cir.
1982) .............................................................................................................................15
Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65 (1st Cir. 2004) ......................................... 8, 9, 14
Rogers v. Scurr, 676 F.2d 1211 (8th Cir. 1982) .........................................................................18
Sund v. City of Wichita Falls, Tex., 121 F. Supp. 2d 530 (N.D. Tex. 2000)................................15
Tucker v. State of Cal. Dep’t of Educ., 97 F.3d 1204 (9th Cir. 1996) .........................................13
United Coal. of Reason, Inc. v. Cent. Ark. Transit Auth., 2011 WL 3607580 (E.D.
Ark. Aug. 16, 2011).......................................................................................................18
United States v. American Library Ass’n, Inc., 539 U.S. 194 (2003)........................ 13, 15, 16, 17
Washington v. Davis, 426 U.S. 229 (1976) ..................................................................................8
Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150
(2002)............................................................................................................................14
Wickersham v. City of Columbia, Mo., 371 F. Supp. 2d 1061 (W.D. Mo. 2005)...........................5
Other Authorities
Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive
in First Amendment Doctrine, 63 U. Chi. L. Rev. 413 (1996) ..........................................8
Mark S. Nadel, The First Amendment’s Limitations on the Use of Internet
Filtering in Public and School Libraries: What Content Can Librarians
Exclude?, 78 Tex. L. Rev. 1117 (2000)...........................................................................6
Rules
L.2006, Mo. H.B. Nos. 1698, 1236, 995, 1362 & 1290, § A ........................................................8

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
Parents, Families, and Friends of Lesbians
and Gays, Inc., et al.
Plaintiffs,
v.
Camdenton R-III School District, et al.
Defendants.

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Case No. 2:11-cv-04212
PLAINTIFFS’ REPLY
IN SUPPORT OF
MOTION FOR PRELIMINARY
INJUNCTION

PLAINTIFFS’ REPLY IN SUPPORT OF
MOTION FOR PRELIMINARY INJUNCTION
The District frames this case as a false choice between either presumptively blocking all
LGBT-supportive websites or else exposing students to a wide range of sexually explicit
websites. These may be the two options available when the District uses the strange,
inappropriate, and discriminatory set of blacklists created by URL Blacklist. But they are not the
only two options facing the District. Thousands of other school districts filter sexually explicit
content without blocking informational LGBT-supportive websites. Indeed, there are at least
five reputable filtering companies that do not block any of Plaintiffs’ websites or the other
LGBT-supportive websites listed in the Amended Complaint. See Ex. 1 (Decl. of D. Hinkle) at ¶
5-6. Instead of using these mainstream viewpoint-neutral filtering systems, the District has gone
out of its way to use a filtering system with an unusual “sexuality” category that targets the
Internet’s most valuable, credible, and popular LGBT informational content and unnecessarily
groups those websites together with sexually explicit websites. Defendants insist that this

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viewpoint discrimination is justified by the District’s overriding need to protect students from
sexually explicit content under the Children’s Internet Protection Act (“CIPA”). But URL
Blacklist -- which never purports to comply with CIPA and apparently operates out of a home in
the English countryside1 -- actually is less effective at blocking pornography than the viewpointneutral software sold by mainstream filtering companies. See Ex. 1 (Decl. of D. Hinkle) at ¶¶
11-14.
Each day that the District continues to censor websites in this viewpoint-discriminatory
and palpably unreasonable manner, Plaintiffs continue to suffer irreparable harm. The District,
in contrast, only stands to benefit from being ordered to purchase a filtering system that does a
better job of blocking sexually explicit content without engaging in invidious and unnecessary
discrimination against LGBT-supportive viewpoints. The Court should issue a preliminary
injunction.
I.

Plaintiffs Are Likely to Prevail on the Merits.
A party seeking a preliminary injunction without invalidating a duly enacted statute need

only show a “fair chance” of prevailing on the merits. See Planned Parenthood v. Rounds, 530
F.3d 724, 732-33 (8th Cir. 2008). Here, Plaintiffs are likely to prevail because, under clearly
established precedent, the Constitution forbids the kind of viewpoint-based discrimination
caused by Defendants’ use of the URL Blacklist filtering database.

1

The URL Blacklist website contains no contact information for its operator. However, a WHOIS search
of the registration of the domain name urlblacklist.com reveals that the address associated with the
domain name registration is “49 Lipizzaner Fields\r\nWhiteley,” in Fareham, United Kingdom. A Google
Map search for “49 Lipizzaner Fields, Fareham, United Kingdom” turns up a pretty two-story brick home
with a two-car garage and a small playground or swimming pool.

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A.

Plaintiffs Have Standing.

Plaintiffs’ response to Defendants’ arguments about standing are set forth in Section I of
Plaintiff’s Suggestions in Opposition to Defendants’ Motion to Dismiss, incorporated herein by
reference.
B.

The District May Not Use a Filtering Database That Is Designed to Suppress
Particular Viewpoints About LGBT People.

The discriminatory “sexuality” category created by URL Blacklist groups together two
very different groups of websites. As designed by URL Blacklist, the category collects all
LGBT-supportive websites and places them together with unrelated websites about fetishes,
swinging, and other sexually explicit content. Instead of making any attempt to differentiate
between sites like PFLAG and pornography, URL Blacklist simply states that the new
“sexuality” category it has created “possibly includ[es] adult material.” This methodology is a
little like placing X-rated performances by comedians like George Carlin and Lenny Bruce
together in the same category as Captain Kangaroo and I Love Lucy and then claiming that the
whole category must be blocked because it includes adult content. Or, given the apparent
political bias of the “sexuality” category, it is like deliberately categorizing Michael Moore’s
left-leaning documentaries together with violent R-rated movies, while classifying right-leaning
documentaries like “Hillary: the Movie” together with G-rated movies.
Using a neutral-sounding title like “sexuality” cannot cure the inherent viewpoint
discrimination of this blacklist. By design, informational content about LGBT issues, including
even organizations that discuss religion from an inclusive and LGBT-supportive perspective, are
grouped together with fetish and sexually explicit websites. In contrast, websites from groups
like the Alliance Defense Fund (one of the amici for the District), which condemn the “radical
homosexual agenda” and oppose legal protections for LGBT people, are not included in the

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“sexuality” category. Such websites are instead placed in URL Blacklist’s “religion” category,
where their anti-LGBT viewpoints are made freely available to students. 2
The viewpoint discrimination against LGBT-supportive websites does not disappear
simply because those sites have been grouped with unrelated sexually explicit content. If any
viewpoint may be censored simply by intentionally grouping it together with sexually explicit
content, then any school or outside interest group could design a filtering system to suppress
disfavored viewpoints in the name of blocking access to pornography. For example, under the
District’s theory, if URL Blacklist made a viewpoint-based decision to systematically group
fetish websites together with websites supporting women’s rights or evolution, the District could
suppress the entire group of websites and its actions would be immune from constitutional
review. Viewpoints that could not be suppressed directly could thus be suppressed indirectly by
gerrymandering how the categories are drawn.3
The District never says whether it believes that websites should be presumptively
suppressed based on their LGBT-supportive viewpoint. Instead, the District argues that it has
unlimited discretion to select whatever filtering system it chooses, no matter how dramatically

2

To support its claims that its filtering system does not discriminate against LGBT-supportive
viewpoints, the District points to 41 obscure website addresses about LGBT people that are not blocked
by the District. Cowen Decl. at Ex. 1. Of those 41 website addresses, 40 are not blocked simply because
they have not yet been added to the URL Blacklist database. See Exs. 2A and 2B (URL Blacklist
screenshots) (showing “[n]o matches” for 40 of the 41 websites). The only reason why these websites are
not blocked is that URL Blacklist has not yet gotten around to adding those websites to its database. If
they are eventually categorized by URL Blacklist, they almost certainly will be placed in the “sexuality”
category along with all the other LGBT-supportive websites. The remaining website on the District’s list
— www.rainbowdomesticviolence.itgo.com — is labeled by URL Blacklist as “sexuality,” and has been
manually unblocked by the District. See Exs. 2A and 2B (URL Blacklist screenshots); Cowen Decl. at ¶
16.
3

This is not a hypothetical possibility, According to a study published in 2002, several of the leading
filtering companies in existence at that time either had formal partnerships with religious organizations or
actively marketed themselves to those institutions by advertising that their software provided filtering in
accordance with Christian values. See Ex. 3, Nancy Willard: Filtering Software: The Religious
Connection (2002).

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that system discriminates against disfavored viewpoints, and that its actions are immune from
First Amendment scrutiny so long as the District employees are not themselves motivated by a
desire to suppress the viewpoints that are targeted by the filtering software. Even if the Court
were to accept the District’s self-serving statements about its own motivations, the District’s
argument rests on the faulty premise that the government is free to enforce the invidious
viewpoint discrimination designed by private parties. “Private biases may be outside the reach
of the law, but the law cannot, directly or indirectly, give them effect.” Palmore v. Sidoti, 466
U.S. 429, 433 (1984); see also Burton v. Wilmington Parking Auth., 365 U.S. 715, 725 (1961)
(holding that when government participates in conduct with a third party, it may not “effectively
abdicate its responsibilities by either ignoring them or by merely failing to discharge them
whatever the motive may be”); Dailey v. City of Lawton, 425 F.2d 1037, 1039 (10th Cir. 1970)
(“[I]t is enough for the complaining parties to show that the local officials are effectuating the
discriminatory designs of private individuals.”).
The District cannot nullify students’ First Amendment rights by contracting out
decisionmaking to a private entity and then claiming it is not responsible for that entity’s biased
decisions. This Court rejected a similar attempt to contract around the First Amendment in
Wickersham when a city sought to delegate to a private party the authority to determine who may
be permitted on public property: “Can a city avoid its constitutional obligation merely by the
formality of a contract without in fact disengaging itself from the substance of the event? A
wink and a nod should not be enough to eliminate the protections of the Constitution.” See
Wickersham v. City of Columbia, Mo., 371 F. Supp. 2d 1061, 1082 (W.D. Mo. 2005); cf. Am.
United for Separation of Church and State v. Prison Fellowship, 509 F.3d 406 (8th Cir. 2007).
This Court’s statement in Wickersham is equally applicable to this case. For purposes of the

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First Amendment, it makes no difference whether disfavored viewpoints are being suppressed by
employees or an independent contractor because the District “cannot avoid its constitutional
obligation by contracting out its decisionmaking to a private entity.” See Mainstream Loudoun
v. Bd. of Trustees of Loudoun County Library, 24 F. Supp. 2d 552, 569 (E.D. Va. 1998); see
generally Mark S. Nadel, The First Amendment’s Limitations on the Use of Internet Filtering in
Public and School Libraries: What Content Can Librarians Exclude?, 78 Tex. L. Rev. 1117,
1149 (2000) (explaining that “the First Amendment would prohibit a library from avoiding
constitutional scrutiny of intentional or unconscious viewpoint discrimination by abdicating full
control over the filter it used to a private sector entity outside the state action domain”).
In any event, even if the District was initially ignorant of the way that URL Blacklist is
designed to block LGBT-supportive viewpoints, the District has given absolutely no explanation
for why it chose to continue using the discriminatory filter once the issue was brought to its
attention. One possibility is that the District in fact agrees with the designers of URL Blacklist
that any websites that support the rights of LGBT people should presumptively blocked.
Another possibility suggested by recent events is that the District fears that if it stops
discriminating against LGBT websites it will incur a backlash from some of its constituents.
“[I]f an official act is performed simply in order to appease the discriminatory viewpoints of
private parties, that act itself becomes tainted with discriminatory intent even if the
decisionmaker personally has no strong views on the matter.” Ass’n of Relatives & Friends of
AIDS Patients v. Regulations & Permits Admin., 740 F. Supp. 95, 104 (D. P.R. 1990); see also
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (holding that the
government “may not avoid the strictures of [the Equal Protection Clause] by deferring to the
wishes or objections of some fraction of the body politic”).

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The factual circumstances of this case strongly support the inference that the District has
left the discriminatory filter in place in order to appease -- or curry favor with -- constituents who
believe LGBT-supportive materials should be excluded from public schools.4 According to
media reports, at the school board meeting in which the District’s board members voted to
authorize defending this litigation, about fifty people from the Lake Area Conservative Club
(“LACC”) attended to voice their support for blocking LGBT websites and to demand that that
they be notified if a student attempts to access such information.5 Members of the LACC, which
has dedicated a section of its website to coverage of the lawsuit, 6 attended an additional meeting
the following week where the attorney for the District gave assurances that the District would not
“roll over” by fixing the discriminatory filter.7 The LACC has warned the school board that an
election will be held in the spring and that LACC members will vote against school board
members who failed to uphold their values. 8 The LACC has also incorrectly argued that
allowing access to LGBT-supportive websites would encourage students to engage in illegal

4

Indeed, the District’s amicus Alliance Defense Fund has long sought to prevent students from accessing
information from PFLAG, GLSEN, and other “radical homosexual activists [who] are targeting children
in public schools to accept, affirm, and be recruited into homosexual behavior.” See Ex. 4, Excerpt from
ADF’s The Homosexual Agenda.
5

Ex. 5, Joanna Small, “Camdenton Parents React to Lawsuit Over Blocked Homosexuality Websites at
Schools,” KSPR (Aug. 31, 2011) (quoting parent at meeting as saying: "If this is something the child
wants to get into they should really talk to their parents”); Ex. 6, KRMS radio broadcast (Sept. 2, 2011)
(LACC President Cliff Luber stating in a radio interview that probably fifty people from the LACC
attended the meeting and that the majority of attendees were probably from the LACC).
6

See Ex. 7, http://www.lakeareaconservativeclub.org/camdenton-r-iii-school-district-vs-the-aclu/.

7

See Ex. 8, Deanna Wheeler, “Camdenton School Board Attorney Plans to Fight ACLU Lawsuit,
Citizens Offer Opinions,” LakeNewsOnline (Sept. 9, 2011) (“‘There’s no rollover in this board and
there’s no rollover in me,’ Mickes said”). See also Ex. 9, Joanna Small, “Camdenton Addresses Internet
Policy in Light of ACLU Federal Lawsuit,” KSPR (Sept. 7, 2011) (quoting parents at meeting as saying
that access to LGBT-supportive websites “shouldn't even be a part of education,” and that “"When I was
in high school I found myself on my own time, not on school time”).
8

See Ex. 6, KRMS radio broadcast (Sept. 2, 2011) (interview with president of LACC).

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activity because Missouri statutes criminalize “sodomy.”9 In fact, criminal bans on consensual
intimate conduct for same-sex couples were declared unconstitutional by the Supreme Court in
Lawrence v. Texas, 539 U.S. 558 (2003), but students at Camdenton R-III may have difficulty
learning that information because one of the websites blocked by URL Blacklist is a URL link to
the Lawrence decision. See First Amended Complaint at ¶ 52.10
Even without this additional evidence, the unconstitutional motivation of government
decision makers can be inferred from their objectively discriminatory conduct. Because “‘[t]he
government rarely flatly admits it is engaging in viewpoint discrimination,’” the government’s
motivation must be inferred from objective evidence. Pittsburgh League of Young Voters Educ.
Fund v. Port Auth. of Allegheny County, 2011 WL 3374079, *5 (3d Cir. Aug 05, 2011) (quoting
Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 86 (1st Cir. 2004)); see generally Elena Kagan,
Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment
Doctrine, 63 U. Chi. L. Rev. 413, 452-53 (1996) (“The distinctions among viewpoint-based
laws, other content- based laws, and content-neutral laws . . . create a set of presumptive
conclusions about when improper motive has tainted a restriction on speech.”). One of the
strongest indications that the District intends to block LGBT websites based on their LGBTsupportive viewpoints is that they have insisted on using a filtering system that is designed to
discriminate in that manner. “Frequently the most probative evidence of intent will be objective
evidence of what actually happened rather than evidence describing the subjective state of mind
of the actor. For normally the actor is presumed to have intended the natural consequences of his
deeds.” Washington v. Davis, 426 U.S. 229, 253 (1976) (Stevens, J., concurring). Another

9

Id.

10

In addition to being unenforceable under Lawrence, Missouri’s sodomy statute was repealed in 2006.
See L.2006, Mo. H.B. Nos. 1698, 1236, 995, 1362 & 1290, § A.

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indicator of unconstitutional motivation is the government’s different treatment of similarly
situated speakers: “‘[W]here the government states that it rejects something because of a certain
characteristic, but other things possessing the same characteristic are accepted, this sort of underinclusiveness raises a suspicion that the stated neutral ground for action is meant to shield an
impermissible motive.’” Pittsburgh League of Young Voters Educ. Fund, 2011 WL 3374079, at
*5 (quoting Ridley, 390 F.3d at 87). Similarly, “‘suspicion arises where the viewpoint-neutral
ground is not actually served very well by the specific governmental action at issue; where, in
other words, the fit between means and ends is loose or nonexistent.’” Pittsburgh League of
Young Voters Educ. Fund, 2011 WL 3374079, at *5 (quoting Ridley, 390 F.3d at 87). Improper
motive can also be inferred from government’s failure to use more sensitive tools that are
capable of distinguishing between protected and unprotected content: “[T]he State must employ
‘sensitive tools’ in order to achieve a precision of regulation that avoids the chilling of protected
activities . . . [T]he presence of such sensitive tools in [the school board’s] decisionmaking
process would naturally indicate a concern on their part for the First Amendment rights of
[students]; the absence of such tools might suggest a lack of such concern.” Bd. of Educ., Island
Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 874 n.26 (1982) (plurality).
All of these factors create a strong presumption in this case that the District has retained
its discriminatory filtering software at least in part because district officials feared that
constituents who disapprove of homosexuality would object if the District was perceived to be
making LGBT-supportive material more accessible to students.
C.

The District’s Filtering Is Not Reasonable in Light of the Purposes of the
School Library.

In addition to engaging in unconstitutional viewpoint discrimination, the District’s
filtering policy is also unconstitutional because its reliance on URL Blacklist is not reasonable in

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light of the purposes of the school library. 11 The District makes the circular argument that it is
reasonable to block the “sexuality” category because URL Blacklist states that the category
includes “adult” content. But the District offers no reason why it is reasonable for the District to
use URL Blacklist in the first place. As the District notes, reasonableness must be assessed in
light of “all the surrounding circumstances,” Cornelius v. NAACP Legal Def. & Educ. Fund,
Inc., 473 U.S. 788, 808 (1985), which include not only the decision to activate the “sexuality”
filter, but also the underlying decision to use a discriminatory filtering database. To be sure, the
District is not required to adopt “the most” reasonable method of filtering, but URL Blacklist
falls below even the most minimal standards. Indeed, URL Blacklist never represents that it
complies with CIPA or is suitable for an educational environment, and its website specifically
warns users that URL Blacklist does not provide any warranty or guaranty of service. See Ex. 1
(Hinkle Decl.) at ¶ 11.
Although the District asks this Court to defer to its judgment that URL Blacklist is a
reasonable method for excluding websites from the District’s library, the District apparently
lacks basic information about how the database operates. Indeed, its argument that the filtering
is reasonable appears to be premised on the faulty assumption that URL Blacklist does not block
LGBT-supportive content on the basis of its viewpoint, because a handful of obscure LGBTsupportive websites are not blocked by the software. As explained above, the websites listed by
11

See United States v. American Library Ass’n, Inc., 539 U.S. 194, 208 (2003) (plurality) (“ALA”)
(holding that use of viewpoint-neutral filter for pornography is “entirely reasonable” in light of libraries’
traditional practice of excluding pornographic materials for their collections); id. at 218 (Breyer, J.,
concurring in judgment) (“What our decisions require is a ‘fit’ between the legislature’s ends and the
means chosen to accomplish those ends -- a fit that is not necessarily perfect, but reasonable” (internal
quotation marks omitted)). Indeed, even under the more deferential test for school-sponsored speech, the
government must show that a restriction is “reasonably related” to legitimate pedagogical concerns.
Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988); see Borger by Borger v. Bisciglia, 888
F. Supp. 97, 100-01 (E.D. Wis. 1995) (requiring school board to present evidence demonstrating that
relying on MPAA ratings “is a reasonable way of determining which movies are more likely to contain
harsh language, nudity, and inappropriate material for high school students”).

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the District are not blocked because they have not yet been added to URL Blacklist’s database.
See supra n.3 & Exs. 2A and 2B (URL Blacklist screenshots). The fact that a handful of less
prominent LGBT websites are not yet categorized by URL Blacklist does not negate the
invidious discrimination that occurs when the most prominent LGBT-supportive websites are
blocked as a result of being placed in the “sexuality” category.12 Moreover, the less prominent
LGBT websites identified by the District may well be added to the URL Blacklist database in the
future; all we know is that they have not yet been so categorized. If URL Blacklist ever gets
around to categorizing those websites, there is every reason to expect that they will be placed in
the “sexuality” category along with all the other LGBT-supportive websites. The District’s
refusal to acknowledge the viewpoint-discriminatory design of URL Blacklist severely
undermines its claim that the Court should defer to its assertion that URL Blacklist is a
reasonable filtering method.
Indeed, although the District and its amici ask the Court to defer to the professional
judgment of school librarians, the District provides no indication that librarians or educational
12

Camdenton has essentially (1) made anti-LGBT sites freely available, (2) classified the leading LGBT
informational websites together with different material (swinging, bondage and fetish sites) under the title
“sexuality,” and (3) argued to excuse that classification by noting that a few peripheral non-sexual LGBT
informational sites are (at least so far) not so classified. By analogy, that would be similar to arranging
American political website references in the following manner:


Sites of Republicans in Congress, such as Speaker John Boehner and Senate Minority Leader
Mitch McConnell, would be classified together with Nazis, skinheads and white supremacists,
under a “rightist” category, and all such classified sites would be presumptively blocked,
available only if a student made a special request to unblock particular sites and that request was
granted.



Sites of Democrats in Congress, including Senate Majority Leader Harry Reid and House
Minority Leader Nancy Pelosi, would be unclassified and freely available to all students.



Because a few Republican sites, such as that of a Kansas State Representative, and the mayor of
West Palm Beach, Florida, were not blocked, the District would argue that it really did not
discriminate against Republican politicians.

As this analogy shows, clearly such an ideologically biased classification cannot be justified, nor can the
blocking of leading sites on a particular subject and point of view be justified simply because a few
peripheral sites with a similar point of view are not blocked.

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professionals had any role in evaluating URL Blacklist’s suitability for the school library
environment. Far from reflecting legitimate collection-management criteria used by school
librarians, “[t]he broad strokes of categorization of websites employed by URL Blacklist, with
no criteria for determining quality or more precise subcategories, effectively remove a librarian’s
ability to apply professional collection development criteria.” Ex. 10 (B. Stripling Decl.) at 4.
As explained in the attached declaration of Dr. Barbara Stripling, an expert in school libraries,
the lack of any neutral criteria or quality controls makes URL Blacklist a particularly
unreasonable method of library collection management:
No librarian would have the capacity to evaluate individually the vast quantity of
resources and information available through websites on the Internet; therefore,
librarians must depend on reliable categories, criteria, and reviews to determine
the appropriateness of the resources for their student population. In other words,
for categorization to be acceptable, it must be based on professional judgment.
URL Blacklist appears to use no professional oversight or judgment in
establishing its broad categories or assigning websites to categories.
Id. at 3; see also id. at 12-14 (providing additional details about various flaws in URL Blacklist’s
design). Unlike a viewpoint-neutral filter for pornography, a viewpoint-based filter of websites
that are LGBT-supportive is not consistent with the traditional role of school libraries or basic
principles of library collection management. See id. at 8-9 (explaining librarians’ responsibility
to ensure a “balanced collection” that “reflect[s] a diversity of political, economic, religious,
social, minority, and sexual issues” (internal quotation marks omitted)).
Instead of using the discriminatory URL Blacklist database, the District could have
purchased viewpoint-neutral filtering software from a reputable company. See Ex. 1 (Hinkle
Decl.) at ¶¶ 3, 5-8. Most Internet filtering programs today either classify LGBT-supportive
websites under neutral categories for health, education, and social opinion, or they have a
category for non-sexual LGBT websites that is kept completely separate from the categories for

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adult and sexual content. See Ex. 1 (Decl. of D. Hinkle) at ¶ 6 and Exs. A-C thereto. Indeed, the
District has at least five different types of viewpoint-neutral software to choose from that would
block sexually explicit content without blocking any of Plaintiffs’’ websites or the other LGBTsupportive websites cited in the Amended Complaint. See Ex. 1 (Decl. of D. Hinkle) at ¶¶ 5-6.13
The District has given absolutely no explanation for why it has decided not to use
viewpoint-neutral software; indeed, the District has failed to provide any indication that it has
considered using viewpoint-neutral alternatives at any point in time. “The government need not
choose the least restrictive alternative when regulating speech in a nonpublic forum. . . .
Nevertheless, the availability of simple alternatives which infringe much less on the First
Amendment rights . . . further supports [the] conclusion that the challenged [restriction] is
unreasonable.” Tucker v. State of Cal. Dep’t of Educ., 97 F.3d 1204, 1216 (9th Cir. 1996)
(citations omitted); cf. ALA, 539 U.S. at 219 (Breyer, J., concurring in judgment) (concluding
that it was reasonable for library to use software that accidentally overblocked because, in light
of the current state of technology, “no one has presented any clearly superior or better fitting
alternatives”).14

13

The District’s amici note that, as part of its “Don’t Filter Me” campaign, the ACLU has contacted
school districts using other software programs that have improperly configured their software to block the
category for non-sexual LGBT websites. Amicus Br. at 2. Those school districts have been able to
respond to the problem simply by adjusting the settings on their software to stop blocking the non-sexual
LGBT category. In contrast, URL Blacklist requires a user to block non-sexual LGBT materials in order
to block access to sexually explicit fetish websites.
14

No filtering software is 100% accurate. Even the most reputable software may from time to time
incorrectly classify a non-sexual website as pornography or incorrectly classify a pornographic website as
non-sexual. Ex. 1 (Hinkle Decl.) at ¶14 But if the underlying categories are viewpoint-neutral, those
errors can be reported to the software company and then corrected. In contrast, URL Blacklist
intentionally groups non-sexual LGBT-supportive websites together with sexually explicit content. When
a non-sexual LGBT website is blocked by the “sexuality” filter, there is no “error” to report because,
under the discriminatory design of URL Blacklist, the “sexuality” category is where non-sexual LGBT
websites are supposed to be classified.

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The District’s claim that its overriding concern is to block all sexually explicit material,
moreover, is belied by the facts. URL Blacklist’s methodology for blocking pornographic
websites is far less effective at preventing student access to sexually explicit content than the
filtering technology used by reputable professional filtering providers. See Ex. 1 (Hinkle Decl.)
at ¶¶ 12-14. The District’s use of the discriminatory URL Blacklist database is thus the worst of
both worlds. It imposes a severe burden on students’ First Amendment rights without any
corresponding benefit in protecting them from actual pornography or other sexually explicit
content. Such an ineffective and discriminatory system cannot be reasonable under any standard.
And by using a demonstrably inadequate filter of sexually explicit websites, thereby acting
against its own stated interests, the District has raised serious questions as to its motives.
Pittsburgh League of Young Voters Educ. Fund, 2011 WL 3374079, at *5 (“‘[S]uspicion arises
where the viewpoint-neutral ground is not actually served very well by the specific governmental
action at issue; where, in other words, the fit between means and ends is loose or nonexistent.’” )
(quoting Ridley, 390 F.3d at 87).
D.

The District’s Policy of Anonymously Unblocking Websites on Request Does
Not Mitigate Its Infringement of First Amendment Rights.

Even if the District were to unblock non-sexual LGBT websites upon request, requiring
students to request special permission to access websites about particular disfavored viewpoints
significantly impairs their freedom to receive ideas.15 The LACC’s demands for parental

15

See generally Plaintiffs’ Suggestions in Opposition to Defendants’ Motion to Dismiss; Counts v.
Cedarville Sch. Dist., 295 F. Supp. 2d 996, 999 n.2 (W.D. Ark. 2003) (explaining that restriction of
access on Harry Potter books burdens access because “browsers will not find the book on the shelves and
those unaware of its existence would not know to ask for permission to check it out”); Sund v. City of
Wichita Falls, Tex., 121 F. Supp. 2d 530, 550 (N.D. Tex. 2000) (explaining that removing books from the
children’s section burdened right to receive ideas because, even though books could still be located in the
adult section, “they can only be located if a patron knows in advance that she wants those specific titles or
authors”); Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 166 (2002);
Denver Area Educ. Tel. Consortium, Inc. v. FCC, 518 U.S. 727, 754 (1996).

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notification of unblocking requests only illustrates how the preemptive blocking of all LGBTsupportive websites stigmatizes those websites and sends the message that there is something
improper about requesting access to these websites. This stigma reflects the chilling effect that
courts have warned about: “Actions such as these can too easily lead to suppression. They signal
to the students and the teachers an official message that the ideas presented in those books are
unacceptable, are wrong, and should not be discussed or considered. The chilling effect of this
message on those who would express the idea is all too apparent.” Pico, 638 F.2d 404, 434
(Newman, J., concurring); accord Pratt v. Indep. Sch. Dist. No. 831, Forest Lake, Minn. 670
F.2d 771, 779 (8th Cir. 1982) (“The symbolic effect of removing the films from the curriculum is
more significant than the resulting limitation of access to the story.”); Sund, 121 F. Supp. 2d at
551 (restriction on access to book about gay and lesbian parents places “unconstitutional stigma
to the receipt of fully-protected expressive materials”).
Despite the burdens and stigma caused by the prior restraint of access to LGBTsupportive websites, the District argues that its unblocking procedure is immune from challenge
under the plurality opinion in ALA. But the websites in ALA were being accidentally blocked by
viewpoint-neutral software, so the overblocking did not place any uneven burdens or stigmas on
particular disfavored viewpoints. In contrast, the blocking of LGBT-supportive websites at
Camdenton R-III is part of the design of the “sexuality” blacklist. It imposes a unique burden on
LGBT-supportive viewpoints and stigmatizes those viewpoints as presumptively dangerous and
harmful. See Denver Area Educ. Tel. Consortium, Inc., 518 U.S. at 754 (1996); Sund, 121 F.
Supp. 2d at 551.
In any event, even if ALA applied to viewpoint-discriminatory blocking practices, ALA
was decided in the context of a facial challenge, and the Justices specifically acknowledged that

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although the statute was not facially invalid, requiring users to request that sites be unblocked
could pose an unconstitutional burden on speech in particular cases. See ALA, 539 U.S. at 215
(Kennedy, J., concurring in the judgment); id. at 220 (Breyer, J., concurring in the judgment).
The Supreme Court has repeatedly explained in the context of such facial challenges that
“upholding the law against a broad-based challenge does not foreclose a litigant's success in a
narrower one.” John Doe No. 1 v. Reed, 130 S. Ct. 2811, 2821 (2010).16 In this case -- unlike in
ALA -- the unblocking requests concern materials about sexual orientation that could risk
“outing” a student to teachers or classmates or may subject a vulnerable group of students to
additional peer harassment. Cf. id. at 2822-24 (Alito, J., concurring) (arguing that citizens who
signed petition to repeal law providing protections to same-sex domestic partners would
experience a greater chilling effect from disclosure than people who sign less controversial
petitions). Moreover, unlike in ALA, this case involves unblocking requests made by adolescent
students, who may be more vulnerable to chilling effects than an adult would be. The Supreme
Court has noted that “[r]esearch in psychology supports the common assumption that adolescents
are often susceptible to pressure from their peers towards conformity, and that the influence is
strongest in matters of social convention.” Lee v. Weisman, 505 U.S. 577, 593-94 (1992)
(holding that adolescent was unconstitutionally coerced by prayer held at school graduation even
though prayer may not have been coercive for an adult in similar circumstances); see also J.D.B.
16

The plaintiffs in Reed challenged the constitutionality of a Washington statute that required public
disclosure of the names of people who sign petitions to put popular initiatives on the ballot. Reed, 130 S.
Ct. at 2815. The plaintiffs had signed the petition for R-17, which would have repealed Washington’s law
recognizing civil unions for same-sex couples. Id. at 2816. The plaintiffs argued that disclosing their
names would unconstitutionally burden their speech by subjecting them to harassment and reprisals. Id.
The Court rejected the plaintiffs’ claim that the statute’s disclosure requirements were facially invalid, but
explained that the plaintiffs could bring a separate challenge arguing that the statute was unconstitutional
as applied to the anti-LGBT ballot initiative they signed. Id. at 2821. “The question before us . . . is not
whether [the] disclosure violates the First Amendment with respect to those who signed the R-71 petition,
or other particularly controversial petitions. The question instead is whether such disclosure in general
violates the First Amendment rights of those who sign referendum petitions.” Id. at 2820-21.

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v. North Carolina, 131 S. Ct. 2394, 2402-2406 (2011) (holding that a reasonable minor may feel
that he or she is not free to leave for purposes of triggering the protections of Miranda even
though a reasonable adult would have felt free to leave in similar circumstances). In the context
of adolescents requesting access to information about sensitive issues concerning sexual
orientation, the District’s unblocking procedures impose a significantly greater burden on access
to information than the hypothetical unblocking requests considered in ALA. See Ex. 10 (B.
Stripling Decl.) at 14-16 (describing how LGBT youth may be deterred from requesting access).
The District’s assurances that it will unblock individual websites upon request do not
cure URL Blacklist’s invidious viewpoint discrimination. To the contrary, it perpetuates that
discrimination by placing special burdens and stigma on a set of disfavored viewpoints.
II.

The Remaining Dataphase Factors Favor Entry of a Preliminary Injunction.
Because Plaintiffs have demonstrated a likelihood of success on the merits, the Plaintiffs

have also satisfied the remaining factors set forth in Dataphase Systems, Inc. v. C.L. Systems,
Inc., 640 F.2d 109, 114 (8th Cir. 1981). “In a First Amendment case …, the likelihood of
success on the merits is often the determining factor in whether a preliminary injunction should
issue.” Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008). Even if examined separately,
however, the remaining Dataphase factors also weigh in favor of a preliminary injunction in this
case.
A.

Irreparable Harm

It is well-settled law that a “loss of First Amendment freedoms, for even minimal periods
of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976)
(plurality). “If [a plaintiff] can establish a sufficient likelihood of success on the merits of her
First Amendment claim, she will also have established irreparable harm as the result of the

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deprivation.” Nixon, 545 F.3d at 690; accord United Coal. of Reason, Inc. v. Cent. Ark. Transit
Auth., 2011 WL 3607580, at *5 (E.D. Ark. Aug. 16, 2011).
Defendants do not cite any cases in which a plaintiff who showed a likelihood of success
on the merits of a First Amendment claim was not also found to have satisfied the irreparable
harm factor of Dataphase. The two cases they cite are inapposite. Rogers v. Scurr, 676 F.2d
1211 (8th Cir. 1982), involved First Amendment claims in a prison context. The Court held
injunctive relief was improper because the plaintiff failed to establish that any constitutional
violation occurred. Here, this Court has not ruled against Plaintiffs on the merits. AdamMellang v. Apartment Search, Inc., 96 F.3d 297 (8th Cir. 1996), was an employmentdiscrimination case in which the plaintiff did not allege any constitutional violations and suffered
only money damages, which could be fully compensated at a later date. Here, Plaintiffs are
suffering an ongoing infringement of First Amendment rights.
B.

Balance of Harms

The District argues that the balance of harms tips in its favor because removing the
“sexuality” filter would expose students to sexually explicit content. As explained above, that is
a false choice. There are numerous filtering systems available that neither engage in the
viewpoint discrimination that harms Plaintiffs nor allow students access to harmful material. See
Ex. 1 (Hinkle Decl.) at ¶¶ 3, 5-8. These alternative filtering systems could be purchased and
installed in as little as two or three hours. See Ex. 1 (Hinkle Decl.) at ¶ 8. Alternatively, if
Defendants insist on continuing to use the discriminatory URL Blacklist database, then the
District has the option of manually blocking any websites that should be blocked to comply with
CIPA. This would permit Defendants to keep any harmful material from students without
violating the First Amendment. Defendants cannot show that the burden caused by either of

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these alternatives outweighs the ongoing harm caused by the violation of Plaintiffs’ First
Amendment rights.
Moreover, switching to a viewpoint-neutral filtering system from a reputable company
would provide greater protection against pornography than currently provided by URL Blacklist.
In addition to causing the viewpoint discrimination alleged in this case, URL Blacklist fails to
block large amount of sexually explicit material. See Ex. 1 (Hinkle Decl.) at ¶¶ 12-14. To the
extent that the Court considers the risk of exposing students to pornography when balancing the
relative harms, that risk weighs in favor of a preliminary injunction, not against it.17
C.

Public Interest

Defendants cannot demonstrate how the public interest favors allowing them to engage in
viewpoint discrimination. The District does not have to choose between complying with the
First Amendment and blocking access to pornography. Defendants can disable the sexuality
filter on URL Blacklist and manually block sexually explicit sites, or the District can use a
viewpoint-neutral filtering system from a reputable company. See Ex. 1 (Hinkle Decl.) at ¶¶ 3,
5-8.
By using URL Blacklist, the District is currently engaging in viewpoint discrimination
and failing to protect students from pornography. See Ex. 1 (Hinkle Decl.) at ¶¶ 12-14. The
public interest is best served if Defendants are required to comply with both CIPA and the First
Amendment.

17

To be sure, no filtering software is perfect. Even the highest quality filtering software may fail to block
some pornographic websites or may incorrectly classify a pornographic website in a non-pornographic
category. But URL Blacklist is significantly less effective at blocking pornographic websites than the
available alternatives. See Ex. 1 (Hinkle Decl.) at ¶¶ 12-14.

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Conclusion
For the reasons set forth above and in Plaintiff’s initial memorandum, and based on the
submitted declarations and further evidence that Plaintiffs are prepared to present at hearing, a
preliminary injunction should be issued.

Respectfully Submitted,
THOMPSON COBURN LLP

By

/s/ Mark Sableman
Mark Sableman #36276
A. Elizabeth Blackwell #50270
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

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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 September 27, 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

Michael Whitehead
WHITEHEAD LAW FIRM, LLC
City Center Square
1100 Main Street, Suite 2600
Kansas City, Missouri 64105-5194

Attorneys for Defendants
Camdenton R-III School District
and Timothy E. Hadfield

Jeremy D. Tedesco
ALLIANCE DEFENSE FUND
15100 North 90th Street
Scottsdale, Arizona 85260
David A. Cortman
ALLIANCE DEFENSE FUND
1000 Hurricane Shoals Rd., N.E.
Suite D-600
Lawrenceville, GA 30043
Travis C. Barham
ALLIANCE DEFENSE FUND
12 Public Square
Columbia, Tennessee 38401
Attorneys for Amici Curiae
Alliance Defense Fund and
Missouri Family Policy Council

/s/ Mark Sableman

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