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

Filing 9

SUGGESTIONS in support re 6 MOTION for preliminary injunction filed by Ann Elizabeth Blackwell on behalf of Plaintiffs Campus Pride, Inc., Dignity, Inc., Matthew Shepard Foundation, Parents, Families, and Friends of Lesbians and Gays, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit A-1, # 3 Exhibit A-2, # 4 Exhibit A-3, # 5 Exhibit A-4, # 6 Exhibit A-5, # 7 Exhibit B, # 8 Exhibit C, # 9 Exhibit D, # 10 Exhibit E, # 11 Exhibit F)(Related document(s) 6 ) (Blackwell, Ann)

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. 02:11-cv-04212
SUGGESTIONS 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]
* Pro Hac Vice Motion to Follow
Attorneys for Plaintiffs

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TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................................ i
TABLE OF AUTHORITIES..................................................................................................... iii
FACTUAL BACKGROUND......................................................................................................1
ARGUMENT..............................................................................................................................8
I.

Plaintiffs Are Likely to Succeed on the Merits of Their Claim that
Camdenton R-III’s Web Filtering Violates the First Amendment. .......................9
A.

Plaintiffs Have Standing to Challenge Camdenton R-III’s
Unconstitutional Web Filtering.................................................................9

B.

School Censorship of Internet Resources Must -- At a Minimum -Be Viewpoint-Neutral and Reasonable. ..................................................10
1.

2.

Under the Approach of the ALA Plurality, a
Library’s Filtering of Internet Materials Must Be
Viewpoint-Neutral and Reasonable in Light of the
Traditional Role of Libraries. ......................................................12

3.

C.

Under Pico and Pratt, School Censorship of Library
Materials Must Be Viewpoint-Neutral and Based on
Legitimate Criteria. .....................................................................10

Under Bradburn and Crosby, a Library’s Filtering
of Internet Materials Must Be Viewpoint-Neutral
and Reasonable in Light of the Traditional Role of
Libraries. ....................................................................................15

Camdenton R-III’s Web Filtering Is Not Viewpoint-Neutral or
Reasonable in Light of the Traditional Role of the School Library. .........16
1.
2.

D.

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Camdenton R-III’s “Sexuality” Filter Is Not
Viewpoint-Neutral ......................................................................17
Camdenton R-III’s “Sexuality” Filter Is Not
Reasonable in Light of the Traditional Role of
School Libraries..........................................................................24

Camdenton R-III Cannot Justify Its Decision To Use the
Discriminatory URL Blacklist System. ...................................................26

-i-

II.

Plaintiffs Will Suffer Irreparable Harm Without a Preliminary
Injunction...........................................................................................................30

III.

The Balance of Harms Favors an Injunction.......................................................30

IV.

An Injunction Will Serve the Public Interest ......................................................30

CONCLUSION.........................................................................................................................31

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- ii -

TABLE OF AUTHORITIES
Cases
ACLU v. Mineta, 319 F. Supp. 2d 69 (D.D.C. 2004)..................................................................14
ALA, 2003 WL 145228 (2003) ..................................................................................................13
Am. Council of the Blind v. Boorstin, 644 F. Supp. 811 (D.D.C. 1986) ................................13, 29
Ariz. Governing Comm. for Tax Deferred Annuity and Deferred Comp. Plans
v. Norris, 463 U.S. 1073 (1983).....................................................................................27
Arkansas Educational Television Comm’n v. Forbes, 523 U.S. 666 (1998)................................13
Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853
(1982).......................................................................................................... 10, 11, 12, 13
Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983)......................................................28
Boos v. Barry, 485 U.S. 312 (1988)...........................................................................................15
Borger by Borger v. Bisciglia, 888 F. Supp. 97 (E.D. Wis. 1995) ..............................................26
Bowler v. Town of Hudson, 514 F. Supp. 2d 168 (D. Mass. 2007) .............................................11
Bradburn v. N. Cent. Reg’l Library Dist., 231 P.3d 166 (Wash. 2010)................................passim
Burnham v. Ianni, 119 F.3d 668 (8th Cir. 1997) ........................................................................26
Byrne v. Rutledge, 623 F.3d 46 (2d Cir. 2010)...........................................................................17
Child Evangelism Fellowship of N.J. Inc. v. Stafford Tp. Sch. Dist., 386 F.3d
514 (3d Cir. 2004) ...................................................................................................10, 17
Counts v. Cedarville Sch. Dist., 295 F .Supp. 2d 996 (W.D. Ark. 2003) ..............................10, 28
Crosby v. S. Orange County Cmty. Coll. Dist., 172 Cal. App. 4th 433 (2009)................ 10, 15, 16
Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109 (8th Cir. 1981)............................................9
Doe v. S. Iron R-1 Sch. Dist., 453 F. Supp. 2d 1093 (E.D. Mo. 2006) ........................................30
Elrod v. Burns, 427 U.S. 347 (1976) .........................................................................................30
Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123 (1992)..........................................29
Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001).......................................................14
Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993)......................17, 19
Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001) ...........................................................24

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Mainstream Loudoun v. Bd. of Trustees of the Loudoun County Library, 2 F.
Supp. 2d 783 (E.D.Va. 1998).........................................................................................11
Marcus v. Iowa Pub. Television, 97 F.3d 1137 (8th Cir.1996) ...................................................30
Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984).............................15, 17
Miller v. NW Region Library Bd., 348 F. Supp. 2d 563 (M.D.N.C. 2004) ..................................15
Minarcini v. Strongsville City Sch. Dist., 541 F.2d 577 (6th Cir. 1976)......................................10
Nat’l Endowment for Arts v. Finley, 524 U.S. 569 (1998)....................................................13, 15
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) ...................................14
Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir. 2008) ............................................................9, 30
Planned Parenthood v. Rounds, 530 F.3d 724 (8th Cir. 2008) .....................................................9
Pratt v. Indep. Sch. Dist. No. 831, Forest Lake, Minn., 670 F.2d 771 (8th Cir.
1982) ................................................................................................................. 10, 11, 28
R.A.V. v. St. Paul, 505 U.S. 377 (1992) .....................................................................................14
Robb v. Hungerbeeler, 370 F.3d 735 (8th Cir. 2004) .................................................................26
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) ....................................14
Searcey v. Crim, 815 F.2d 1389 (11th Cir. 1987).........................................................................9
Shapiro v. Thompson, 394 U.S. 618 (1969) ...............................................................................29
United States v. Am. Library Ass’n (“ALA”), 539 U.S. 194 (2003).....................................passim
Va. State Bd. of Pharmacy v. Va. Citizens Consumers Council, Inc., 425 U.S.
748 (1976).......................................................................................................................9
Watchtower Bible v. Vill. of Stratton, 536 U.S. 150 (2002)........................................................28
Wickersham v. City of Columbia, Mo., 371 F. Supp. 2d 106 (W.D. Mo. 2005).......................9, 30
Other Authorities
ALA Policy Statement 53.1.11..................................................................................................24
Children’s Internet Protection Act (“CIPA”) .........................................................................2, 12

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- iv -

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
SUGGESTIONS IN SUPPORT OF
MOTION FOR PRELIMINARY
INJUNCTION

PLAINTIFFS’ SUGGESTIONS IN SUPPORT OF
MOTION FOR PRELIMINARY INJUNCTION
This matter involves Defendant Camdenton R-III School District’s (the “District’s”) use
of Internet filtering software that impermissibly discriminates on the basis of viewpoint.
Specifically, the District’s Internet filtering software blocks students from accessing websites
that are supportive of lesbian, gay, bisexual, and transgender (“LGBT”) individuals and their
rights while allowing students to access websites that espouse an anti-LGBT viewpoint.
Plaintiffs seek injunctive relief, prohibiting the District from continuing to block student access
to non-sexual web content with LGBT-supportive viewpoints, while it permits access to web
content espousing anti-LGBT viewpoints.
FACTUAL BACKGROUND
Defendant Camdenton R-III School District’s Internet Filtering System
Defendant Camdenton R-III School District is a public school district that uses Internet
filtering software to block student access to selected categories of websites. The District claims

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the purpose of its software is to assure compliance with the Children’s Internet Protection Act
(“CIPA”), which requires that schools receiving federal funds through the E-rate program use
filtering software to block websites with visual depictions that are obscene or pornographic.
Plaintiffs do not challenge the District’s use of Internet filtering software for this purpose.
The District’s software, however, is not limited to blocking pornographic or obscene
websites. It also blocks hundreds of educational, non-pornographic websites that advocate for
LGBT rights and/or provide useful information and advice for LGBT individuals. At the same
time, the District’s software permits students to access websites that condemn homosexuality or
take positions opposing LGBT rights. Thus, the District uses filtering software to censor only
websites with an LGBT-supportive viewpoint while allowing access to comparable websites
with an anti-LGBT viewpoint.
To understand how the District engages in such viewpoint discrimination, it is necessary
to understand how the District’s software works. The District custom-built its software using a
database of categorized URL addresses from a website called “URLBlacklist.com.” URL
Blacklist is not a typical commercial Internet filtering company. It is a website with no physical
address or phone number. It creates blacklists by collecting and aggregating other lists. URL
Blacklist specifically warns that “[t]he blacklist does contain sites which are wrongly categorized
which is due to the bulk of the entries being collecting using automatic scripts.” It also states
that “[t]he blacklist does not only contain sites that are considered ‘bad’ but it also contains many
other categories. . . . Being listed does not infer that the site is ‘bad’—these are just lists of
sites.”1
The URL Blacklist database sorts websites into approximately 70 different categories of
content. Once the database is downloaded, the District selects what categories it wishes to block.
1

http://www.urlblacklist.com.

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2

If the District chooses to block a category, then any website listed in that category will be
blocked on school computers.
URL Blacklist uses two categories designed to block vulgar and pornographic content.
The “adult” category includes websites “containing adult material such as swearing but not
porn.” The “porn” category lists websites containing “pornography.” These categories appear to
generally filter content in a viewpoint-neutral manner.
URL Blacklist also uses a separate category called “sexuality.” That category is defined
as “[s]ites dedicated to sexuality, possibly including adult material.” The “sexuality” category
does not capture websites solely based on pornographic content, but, rather, it captures websites
“dedicated to sexuality,” regardless of whether the websites are sexually explicit.
The “sexuality” category includes some websites that are also included in the “adult”
and/or “porn” categories, but it also captures hundreds of websites that qualify for inclusion in
neither of those categories. Some of those websites contain explicit sexual content. Others,
however, are educational websites that are not sexually explicit, contain no “adult” material, and
are addressed entirely to religious, legal, political, personal, and social issues relating to
sexuality. A true and correct copy of the “sexuality” blacklist, sent to the American Civil
Liberties Union Foundation (“ACLU”) by the District, is attached hereto as Exhibit A-5.
The “sexuality” blacklist is not consistent as to LGBT-related content. It does not
include websites that discuss sexual orientation and gender identity from a point of view that
does not express support for LGBT people or advocate for their equal treatment. For example,
the “sexuality” category does not include numerous websites that condemn homosexuality,
oppose protections for LGBT people, or encourage LGBT people to attempt to change their
sexual orientation through so-called reparative therapy.

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Camdenton R-III can block pornographic and sexually explicit content without using the
discriminatory “sexuality” filter. To the extent the “sexuality” category includes websites that
are also categorized as “adult” or “porn,” the District could unblock the “sexuality” category and
still block the “adult” and “porn” sites by using the “adult” and “porn” filters. To the extent the
“sexuality” category includes sexually explicit websites that are not categorized as “adult” or
“porn,” the District could block those sites individually. The District could also use a better,
more reputable Internet filtering service that distinguishes websites with sexually explicit content
from websites that discuss religious, legal, political, and social issues relating to sexuality. The
District has chosen none of these options.
Each of the Plaintiffs has informational, non-sexually explicit websites that are included
in URL Blacklist’s “sexuality” category. URL Blacklist’s “sexuality” category includes
www.pflag.org, the website for Plaintiff Parents, Families, & Friends of Lesbians and Gays, Inc.
(“PFLAG”), along with the websites of a number of PFLAG’s affiliates. Exhibit A-5
(“sexuality” blacklist). PFLAG is a national non-profit organization that promotes the health
and well-being of LGBT persons, their families and friends. Its website provides information
about PFLAG chapters and resources, provides links for LGBT persons and families and friends
of LGBT persons, and offers advice aimed at keeping families together. PFLAG’s websites do
not contain pornography or sexually explicit content. More detailed information about PFLAG
and its websites can be found in Paragraphs 1 and 33-37 of the Complaint and in the Declaration
of Jody M. Huckaby, PFLAG’s Executive Director, attached hereto as Exhibit B.
URL Blacklist’s “sexuality” category also includes dignityusa.org, the website for
Plaintiff DignityUSA. Exhibit A-5 (“sexuality” blacklist). DignityUSA is a national lay
movement of LGBT Catholics that advocates for change in the Catholic Church’s teachings on

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homosexuality. Its website provides information regarding the organization and its ministries,
answers frequently asked questions regarding Catholicism and homosexuality, and provides
resources for those visiting the site, including a Young Adult Caucus for gay and lesbian youth
on its blog. DignityUSA’s website does not contain pornography or sexually explicit content.
More detailed information about DignityUSA and its websites can be found in Paragraphs 2 and
38-39 of the Complaint and in the Declaration of Marianne Duddy-Burke, Executive Director of
DignityUSA, attached hereto as Exhibit C.
URL Blacklist’s “sexuality” category also includes www.matthewshepard.org and
www.MatthewsPlace.com, Exhibit A-5 (“sexuality” blacklist), websites maintained by Plaintiff
Matthew Shepard Foundation, which is an organization that encourage respect for human dignity
and difference by raising awareness, opening dialogues, and promoting positive change.
MatthewsPlace.com is an online community and resource center for LGBT and allied youth that
provides resources about LGBT youth-friendly shelters, outreach centers and empowerment
programs across the country. More detailed information about the Matthew Shepard Foundation
and its websites can be found in Paragraphs 3 and 40-43 of the Complaint and in the Declaration
of its Executive Director, Jason Marsden, attached hereto as Exhibit D. Neither of the Matthew
Shepard Foundation’s websites contains pornography or sexually explicit content.
URL Blacklist’s “sexuality” category also includes www.campuspride.net, one of two
web addresses for the website for Plaintiff Campus Pride, Inc. (“Campus Pride”). Exhibit A-5
(“sexuality” blacklist). Campus Pride is a national nonprofit organization for student leaders and
campus groups working to create a safer college environment for LGBT students. Campus
Pride’s website provides information about Campus Pride events and conferences, newsletters, a
blog, and a discussion board. Additionally, Campus Pride maintains three other websites with

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resources for LGBT youth: www.Stophate.org, www.Lambda10.org, and
www.CampusClimateIndex.org. The “sexuality” category blocks all three of those websites,
along with www.campuspride.net, Exhibit A-5 (“sexuality” blacklist), even though none of them
contains pornography or sexually explicit content. More detailed information about Campus
Pride and its websites can be found in Paragraphs 4 and 44-45 of the Complaint and in the
Declaration of Shane Windmeyer, Campus Pride’s Executive Director, attached hereto as
Exhibit E.
In addition to Plaintiffs’ websites, the District’s filtering software blocks access to
hundreds of other LGBT educational and advocacy websites, a number which are described in
detail in Paragraph 46, Subparagraphs a-oo of the Complaint.
While URL Blacklist’s “sexuality” category blocks Plaintiffs’ websites and other
websites that support LGBT rights, it allows access to numerous websites that condemn
homosexuality, oppose protections for LGBT people, or encourage LGBT people to attempt to
change their sexual orientation through so-called reparative therapy. Those websites are
described in detail in Paragraph 50, Subparagraphs a-k of the Complaint and include, but are not
limited to, the websites for the Christian Coalition (www.cc.org), the National Organization for
Marriage (www.nationformarriage.org), the Family Research Council (www.frc.org), and
Exodus International (www.exodusinternational.org).
Thus, because of the District’s use of URL Blacklist’s “sexuality” filter, students in the
Camdenton R-III School District are permitted to access websites with an anti-LGBT viewpoint
but are prohibited from accessing websites that are supportive of LGBT people and/or provide
information and advice for LGBT individuals.

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The District’s Refusal to Unblock the Viewpoint-Discriminatory “Sexuality” Filter or,
Alternatively, to Change to a Different, Viewpoint-Neutral Filtering Service.
During last school year, the ACLU of Eastern Missouri submitted a public records
request to the District asking what categories of content were being blocked on the District’s
software. In response, the District informed the ACLU of Eastern Missouri that one of the
categories it blocked was “sexuality.” Exhibit A-1 (Letter of May 19, 2011 from T. Hadfield to
M. Hill).2
After receiving the District’s response, the ACLU and the ACLU of Eastern Missouri
requested that the District deactivate the “sexuality” filter and restore students’ access to
websites containing LGBT-supportive content and resources. Alternatively, they suggested that
the District use a different, viewpoint-neutral screening filter that did not discriminate against
non-sexual LGBT material. Exhibit A-2 (Letter of May 24, 2011 from A. Rothert to
T. Hadfield).
Initially, the District denied that its filtering system relies on URL Blacklist. Exhibit A-3
(Letter of May 26, 2011 from T. Mickes to A. Rothert). Upon further inquiry, Exhibit A-4
(Letter of May 31, 2011 from A. Rothert to T. Mickes), the District acknowledged that it did, in
fact, “utilize[] the URL Blacklist filtering system as a base for devising a custom filtering system
for the District.” Exhibit A-5 (Letter of June 6, 2011 from B. Helfirch to A. Rothert). The
District then agreed to unblock four websites that the ACLU and the ACLU of Eastern Missouri
had mentioned in their letters to the District: gsanetwork.org, glsen.org, dayofsilence.org, and
thetrevorproject.org. Id. The District, however, stated that it “will not deactivate the ‘sexuality’
filter from the District’s network.” Id.
2

In contrast, some of the content categories not blocked by the District are: astrology, childcare,
cleaning, clothing, culinary, ecommerce, entertainment, games, gardening, home repair, jewelry, job
search, online games, pets, shopping, sports, and vacation.
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Classes at Camdenton R-III School District start on August 18, 2011. Unless the District
unblocks the “sexuality” filter or, alternatively, changes to a viewpoint-neutral filtering service,
students in the District will be blocked from accessing the websites of Plaintiffs and many other
organizations that provide useful information for students in general and LGBT students in
particular based solely on the LGBT-supportive viewpoints those websites express. The District
has indicated its unwillingness to agree to either of those alternatives. In fact, recently, on
August 12, 2011, the District reaffirmed that it would refuse to make any additional changes to
its discriminatory filtering software. Exhibit F (Article from Lake News Online). Consequently,
absent a court order, Plaintiffs’ websites will be censored on the basis of their viewpoints.
ARGUMENT
As explained below, the URL Blacklist filter for “sexuality” is different than the filtering
systems previously considered by other courts. Previous challenges to filtering software have
involved viewpoint-neutral filtering software that was designed to target pornography. But the
“sexuality” filter used by Camdenton R-III is unprecedented in two key respects: (a) the filter is
not viewpoint-neutral, and (b) the filter does not target only pornography. No court has upheld a
public school or library’s use of filtering software with these two critical features. This Court
should issue a preliminary injunction to prevent the irreparable harm that Plaintiffs will suffer
each day their websites are blocked by the District’s viewpoint-based censorship.
The Eighth Circuit has instructed that courts should consider four factors in determining
whether to issue a preliminary injunction:
(1) the probability of success on the merits; (2) the threat of
irreparable harm to the movant; (3) the balance between this harm
and the injury that granting the injunction will inflict on other
interested parties; and (4) whether the issuance of an injunction is
in the interest of the public.

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Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981); accord Wickersham v.
City of Columbia, Mo., 371 F. Supp. 2d 106, 1076 (W.D. Mo. 2005). “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).
I.

Plaintiffs Are Likely to Succeed on the Merits of Their Claim that Camdenton
R-III’s Web Filtering Violates the First Amendment.
The first factor to consider on a motion for preliminary injunction is whether the movants

have a “fair chance of prevailing” on the merits of their claims. This standard applies “where a
preliminary injunction is sought to enjoin something other than [. . .] a state statute.” Planned
Parenthood v. Rounds, 530 F.3d 724, 732-33 (8th Cir. 2008). The “fair chance of prevailing”
standard is less “rigorous” than the standard applied “where a preliminary injunction is sought to
enjoin the implementation of a duly enacted state statute.” Id. Because the injunction requested
here does not involve a state statute, a fair chance of success on Plaintiffs’ constitutional claims
will satisfy this prong of the preliminary-injunction test.
A.

Plaintiffs Have Standing to Challenge Camdenton R-III’s Unconstitutional
Web Filtering.

“Freedom of speech presupposes a willing speaker. But where a speaker exists, as is the
case here, the protection afforded is to the communication, to its source and to its recipients
both.” Va. State Bd. of Pharmacy v. Va. Citizens Consumers Council, Inc., 425 U.S. 748, 756
(1976) (footnote omitted). By blocking access to their websites, Camdenton R-III has interfered
with Plaintiffs’ ability to communicate their messages to students at Camdenton R-III. Plaintiffs
have standing to challenge this interference with their free speech rights under the First
Amendment. See Searcey v. Crim, 815 F.2d 1389 (11th Cir. 1987) (upholding preliminary
injunction in favor of peace activist group that sought to communicate with public school
students through school career fair and bulletin boards); Child Evangelism Fellowship of N.J.

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Inc. v. Stafford Tp. Sch. Dist., 386 F.3d 514 (3d Cir. 2004) (ruling in favor of community
organization that sought to communicate with public school students through program in which
teachers distributed flyers to students at end of class).
B.

School Censorship of Internet Resources Must -- At a Minimum -- Be
Viewpoint-Neutral and Reasonable.

Although the Supreme Court has not definitively resolved what standard of scrutiny
applies to school censorship of Internet websites, under any possible standard of scrutiny such
censorship must -- at a minimum -- satisfy the bedrock requirements of reasonableness and
viewpoint neutrality. See Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457
U.S. 853 (1982) (plurality); United States v. Am. Library Ass’n (“ALA”), 539 U.S. 194 (2003)
(plurality); Bradburn v. N. Cent. Reg’l Library Dist., 231 P.3d 166 (Wash. 2010); Crosby v. S.
Orange County Cmty. Coll. Dist., 172 Cal. App. 4th 433 (2009).
1.

Under Pico and Pratt, School Censorship of Library Materials Must
Be Viewpoint-Neutral and Based on Legitimate Criteria.

It is well-established that the First Amendment prohibits public schools from censoring
school library resources in a manner that discriminates against disfavored viewpoints. See Pico,
457 U.S. at 868 (plurality); accord Pratt v. Indep. Sch. Dist. No. 831, Forest Lake, Minn., 670
F.2d 771, 776 (8th Cir. 1982); Minarcini v. Strongsville City Sch. Dist., 541 F.2d 577, 581-82
(6th Cir. 1976); Counts v. Cedarville Sch. Dist., 295 F .Supp. 2d 996, 1002-05 (W.D. Ark. 2003).
The Supreme Court in Pico explained that school officials “rightly possess significant discretion
to determine the content of their school libraries. But that discretion may not be exercised in a
narrowly partisan or political manner.” Pico, 457 U.S. at 871 (plurality). School officials may
therefore make content-based decisions based on legitimate criteria such as “educational
suitability,” or “appropriateness to age and grade level,” but they may not remove otherwise

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appropriate books based on “disagreement with constitutionally protected ideas in those books.”
Id. at 875.
First Amendment concerns are heightened in the context of a school library because a
school library is “the principal locus” of students’ right to receive information and “prepares
students for active and effective participation in the pluralistic, often contentious society in
which they will soon be adult members.” Id. at 868. Thus, the wide leeway of school officials in
determining which materials should be included in a school curriculum does not extend “beyond
the compulsory environment of the classroom, into the school library and the regime of
voluntary inquiry that there holds sway.” Id. at 869.3
A school’s censorship of Internet websites in a school library is subject to at least the
same constitutional restraints as a school’s censorship of physical library resources in Pico. In
this context, “the Internet is simply another method for making information available in a school
or library” and “a technological extension of the book stack.” ALA, 539 U.S. at 207 (plurality)
(internal quotation marks and citations omitted). Blocking a website on a school library
computer is analogous to removing a book from a library shelf or clipping a page out of a library
encyclopedia. See id. at 237 (Souter, J., dissenting); Mainstream Loudoun v. Bd. of Trustees of
the Loudoun County Library, 2 F. Supp. 2d 783, 794-95 (E.D.Va. 1998); Bowler v. Town of
Hudson, 514 F. Supp. 2d 168, 180 (D. Mass. 2007). As with the removal of school library

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Although Pico was a plurality decision, the Eighth Circuit reached the same conclusion in Pratt, which
is binding precedent in this Circuit. In Pratt, the Eighth Circuit held that a school board could not censor
student access to a film adaption of Shirley Jackson’s story “The Lottery” and an accompanying “trailer
film” discussing the story because members of the school board “objected to the ideas expressed in them”
or because they “considered the films’ ideological and religious themes to be offensive.” Pratt, 670 F.2d
at 777. By banning the films, the school had impermissibly “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.” Id. at 779.
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books, schools have discretion to filter websites based on legitimate educational criteria but may
not censor websites in a manner that is based on the viewpoints or ideas those websites contain.
2.

Under the Approach of the ALA Plurality, a Library’s Filtering of
Internet Materials Must Be Viewpoint-Neutral and Reasonable in
Light of the Traditional Role of Libraries.

Besides Pico, the only other Supreme Court decision discussing the censorship of library
materials is American Library Association. A fractured Supreme Court in ALA rejected a facial
challenge to the Children’s Internet Protection Act (“CIPA”), 114 Stat. 2763A-335, which
requires public schools and libraries receiving certain federal funds to 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 furnishing materials of requisite and appropriate quality,” and that libraries have wide
discretion to make content-based decisions in determining which materials meet those criteria.
Id. at 206. The plurality concluded that in light of a library’s “traditional role in identifying
suitable and worthwhile material” and the fact that “[m]ost libraries already exclude pornography
from their print collections,” it was “entirely reasonable” for libraries to block categories of
content categorized as “pornography” without reviewing each website individually. Id. at 208.
The reasoning of the ALA plurality is fully consistent with the Supreme Court’s earlier
decision in Pico. A public librarian’s discretion to make content-based judgments when
selecting “material of requisite and appropriate quality for educational and informational
purposes,” id. at 211, is analogous to the discretion of a school official to remove books based on
legitimate criteria such as “educational suitability,” or “appropriateness to age and grade level,”
Pico, 547 U.S. at 871 (plurality). Just as in Pico, that discretion to make content-based decisions
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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 (Souter, J., dissenting) (noting without contradiction that a library’s practice of “excluding
books because their authors are Democrats or their critiques of organized Christianity are
unsympathetic” would be something that “even the plurality would consider to be illegitimate”);
see also Am. Council of the Blind v. Boorstin, 644 F. Supp. 811, 816 (D.D.C. 1986) (holding that
Librarian of Congress impermissibly removed braille version of magazine that had “consistently
met the selection criteria established by the Library of Congress” because of political pressure
from member of Congress).4
Thus, although the ALA plurality upheld the constitutionality of reasonable and
viewpoint-neutral web filtering, nothing in ALA supports the constitutionality of a viewpointbased web filter. Unlike the removal decision in Pico, none of the filtering practices considered
in ALA discriminated on the basis of viewpoint. As the Solicitor General explained to the
Supreme Court, “the commercial filtering products used by public libraries draw distinctions
based on whether the material falls into a category such as ‘Pornography,’ not on the basis of any
viewpoint about sexuality.” Br. of Solicitor General in ALA, 2003 WL 145228, at *31 (2003)
4

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 Nat’l Endowment for Arts v. Finley, 524 U.S. 569 (1998), reaffirmed that “even in the
provision of subsidies, the Government may not “ai[m] at the suppression of dangerous ideas.” Id. at 587
(internal quotation marks and citations omitted). The National Endowment for Arts may therefore use
content-based criteria such as artistic merit when funding private speech but cannot use criteria that are
“utilized as a tool for invidious viewpoint discrimination” or that “in practice, would effectively preclude
or punish the expression of particular views.” Finley, 524 U.S. at 582-83. Similarly, in Arkansas
Educational Television Comm’n v. Forbes, 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 to participate in a televised debate, but the broadcaster “cannot grant or deny access to
a candidate debate on the basis of whether it agrees with a candidate’s views.” Id. at 676; see also id. at
682. In each of these cases, “[t]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).
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(citation omitted); see also id at *12 (noting that “there is no allegation of viewpoint
discrimination here”). The plaintiffs in ALA argued that those viewpoint-neutral filters for
pornography accidentally “over blocked” non-pornographic websites, but there was no allegation
that the filtering software treated websites about sexuality differently based on the viewpoints
they expressed. See ACLU v. Mineta, 319 F. Supp. 2d 69, 86 (D.D.C. 2004) (explaining that, in
ALA, “[t]he blocking of protected material was an unintended side effect of the application of the
filter” and that “[t]hough content-based, the restriction was viewpoint-neutral”).
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
discrimination is the most “egregious” type of speech restriction because “[w]hen the
government targets not subject matter, but particular views taken by speakers on a subject, the
violation of the First Amendment is all the more blatant.” Rosenberger v. Rector & Visitors of
Univ. of Va., 515 U.S. 819, 833 (1995); accord Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 62 (1983) (Brennan, J., dissenting) (stating that “[v]iewpoint discrimination
is censorship in its purest form”). 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 may not be enough to justify
discrimination on the basis of viewpoint. See Good News Club v. Milford Cent. Sch., 533 U.S.
98, 112-13 (2001) (“We have said that a state interest in avoiding an Establishment Clause
violation ‘may be characterized as compelling,’ and therefore may justify content-based
discrimination. However, it is not clear whether a State’s interest in avoiding an Establishment
Clause violation would justify viewpoint discrimination.” (citation omitted)).5
5

See also R.A.V. v. St. Paul, 505 U.S. 377, 391 (1992) (even when speech may be criminalized as
obscene or unprotected “fighting words,” government still may not discriminate on basis of viewpoint);
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In short, ALA “does not stand for the proposition that no constitutional protections apply
to Internet computers at public libraries.” 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.
3.

Under Bradburn and Crosby, a Library’s Filtering of Internet
Materials Must Be Viewpoint-Neutral and Reasonable in Light of the
Traditional Role of Libraries.

In the time since ALA, appellate courts in California and Washington have considered the
constitutionality of library policies restricting Internet access. Both courts expressly adopted the
reasoning of the ALA plurality while at the same time reaffirming that such policies must be
reasonable and viewpoint-neutral.
The Washington Supreme Court in Bradburn 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 Constitution “is not violated by a public library’s Internet filtering policy if it is
reasonable when measured in light of the library’s mission and policies, and is viewpoint
neutral.” Bradburn, 231 P.3d at 180. The court held that the library’s pornography filter “is
viewpoint neutral because it makes no distinctions based on the perspective of the speaker.” Id.
(citing Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)). The court
also reasoned that the pornography filter was reasonable in light of the library’s “mission is to
id. at 430 (Stevens, J., dissenting) (“[W]e have implicitly distinguished between restrictions on expression
based on subject matter and restrictions based on viewpoint, indicating that the latter are particularly
pernicious.”); 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); Boos v. Barry, 485 U.S. 312, 319 (1988)
(distinguishing between discrimination based on content and discrimination based on viewpoint).
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promote reading and lifelong learning.” Id. In light of that traditional mission, the court
concluded that a public library “has traditionally had the authority . . . to legitimately decline to
include adult-oriented material such as pornography in its collection. This same discretion
continues to exist with respect to Internet materials.” Id. at 181.
The California appellate court applied the same standard when it considered the
constitutionality of a library policy restricting Internet access in Crosby. The plaintiff challenged
a state college’s policy of limiting “computer use to educational and employment purposes.”
The court adopted the reasoning of the ALA plurality and held that the college’s restriction was
constitutional because the restriction was “reasonable and not an effort to suppress expression
contrary to the views of school officials.” Crosby, 172 Cal. App. 4th at 437; accord id. at 443
(concluding that the restriction “does not represent a public official’s effort to silence opposing
viewpoints”).
Although neither Bradburn or Crosby is binding on this Court, they reflect a consensus
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
Camdenton R-III’s filtering practices.
C.

Camdenton R-III’s Web Filtering Is Not Viewpoint-Neutral or Reasonable in
Light of the Traditional Role of the School Library.

As explained above, the URL Blacklist filter for “sexuality” is different than the filtering
systems previously considered by other courts. Unlike other filters, the “sexuality” filter (a) is
not viewpoint-neutral, and (b) does not target only pornography. No court has upheld a public
school or library’s use of filtering software with these two critical features.

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1.

Camdenton R-III’s “Sexuality” Filter Is Not Viewpoint-Neutral

“[T]he First Amendment forbids the government to regulate speech in ways that favor
some viewpoints or ideas at the expense of others.” Taxpayers for Vincent, 466 U.S. at 804;
accord Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993).
Bradburn, 231 P.3d at 180. Viewpoint neutrality means that “if government permits the
discussion of a topic from [one] perspective, it may not shut out speech that discusses the same
topic from [a different] perspective.” Child Evangelism Fellowship of N.J., 386 F.3d at 528; cf.
Byrne v. Rutledge, 623 F.3d 46, 56-57 (2d Cir. 2010) (explaining that Vermont had engaged in
“facially impermissible viewpoint discrimination” in its policy for issuing vanity license plates
because “[w]hatever its stated intent, Vermont’s ban on religious messages in practice operates
not to restrict speech to certain subjects but instead to distinguish between those who seek to
express secular and religious views on the same subjects”).
The blacklist of “sexuality” websites used by Camdenton R-III systematically
discriminates against supportive LGBT websites on the basis of viewpoint. 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 ‘Pornography,’
not on the basis of any viewpoint about sexuality.” Br. of Solicitor General in ALA, 2003 WL
145228, at *31(citation omitted); see also Bradburn, 231 P.3d at 180 (stating that library’s
pornography filter “is viewpoint neutral because it makes no distinctions based on the
perspective of the speaker”). Here, in contrast, Plaintiffs are not challenging the District’s use of
viewpoint-neutral filters designed to block pornography. Instead, Plaintiffs are challenging the
use of the “sexuality” filter, which does not purport to target only pornographic content.
Websites that express a particular “viewpoint about sexuality” are placed in the sexuality
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category regardless of whether they are pornographic, while websites that express an opposing
“viewpoint about sexuality” are left off the “sexuality” blacklist. Camdenton R-III’s filtering
thus engages in precisely the sort of viewpoint discrimination that the Solicitor General in ALA
conceded would be unconstitutional.
Viewpoint Discrimination Against PFLAG. The censorship of Plaintiffs’ websites
illustrates the invidious viewpoint discrimination inherent in Camdenton R-III’s decision to
block URL Blacklist’s “sexuality” category. As discussed above, the “sexuality” category
blocks websites for PFLAG, which supports LGBT persons, their families and friends.
PFLAG’s websites provide information about PFLAG chapters and resources, provide links for
LGBT persons and for families and friends of LGBT persons, and offer advice aimed at keeping
families together. Ex. B (PFLAG Decl.). Such advice includes information for young people
looking for supportive resources and guidance on how to talk to a family member about their
sexual orientation and/or gender identity; resources for LGBT students on how they can claim
their federal civil rights if they have experienced bullying, harassment and/or discrimination; and
resources offering ways that school community members can take action to build safer schools.
Id.
While URL Blacklist’s “sexuality” category blocks PFLAG’s website, which supports
LGBT families, it does not block the website for the National Organization for Marriage
(www.nationformarriage.org), which opposes same sex marriage and includes a page that “lays
out the social scientific reasons why marriage between one man and one woman is best for
children and society.”6 The “sexuality” category also does not block the website for the
American Family Association (www.afa.net), which describes that organization’s efforts to

6

http://www.nationformarriage.org/site/c.omL2KeN0LzH/b.5075687/apps/s/content.asp?ct=4509235

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defeat gay marriage initiatives and to combat what it refers to as “the homosexual agenda.”7 Nor
does it block the website for Parents and Friends of Ex-Gays & Gays (PFOX), which claims to
be a “national non-profit organization that supports families and educates the public on sexual
orientation & the ex-gay community” and asserts that “[e]ach year thousands of men and women
with unwanted same-sex attractions make the personal decision to leave homosexuality . . . .”8
This viewpoint discrimination is the mirror image of the unconstitutional viewpoint
discrimination that took place in Lamb’s Chapel. The public school in Lamb’s Chapel 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 from James Dobson (the founder of Focus on the Family)
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 childrearing “is not one that the District has placed off limits to any and all speakers.” Lamb’s
Chapel, 508 U.S. at 393. Rather, “all views about family issues and child rearing except those
dealing with the subject matter from a religious standpoint.” Id.
At Camdenton R-III, the roles are reversed but the viewpoint discrimination remains the
same. Students may generally access viewpoints about “family and childrearing” from Focus on
the Family and other anti-gay organizations such National Organization for Marriage, Family
Research Council, and the Ruth Institute, whose websites preach that families must be limited to
marriage between a man and a woman. But students may not access viewpoints about “family
and childrearing” from PFLAG and similar organizations such as Families Like Ours, Family
Equality Council, PFLAG and COLAGE, which discuss families and child-rearing from the

7
8

http://www.afa.net/Detail.aspx?id=31
http://pfox.org/ex-gay-q-a.html

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perspective of families with LGBT parents and LGBT children. See Paragraph 46,
Subparagraphs a-oo of the Complaint.
Viewpoint discrimination against Dignity USA. As demonstrated by the blocking of
DignityUSA, the URL Blacklist database even discriminates between different religious
organizations based on those organizations’ positions on homosexuality and LGBT people.
Students may generally access religiously oriented websites, including websites that condemn
homosexuality as a sin, but religious websites are censored if the group preaches acceptance of
LGBT people from a religious perspective. For example, the “sexuality” category blocks
websites for DignityUSA, Ex. A-5 (“sexuality” blacklist), which advocates for change in the
Catholic Church’s teachings on homosexuality and provides support for LGBT Catholics, Ex. C
(Decl. of Dignity USA), but it does not block the website for the Knights of Columbus
(www.kofc.org), which states that “[t]he [Catholic] Church must condemn homosexual acts
because they are contrary to God’s plan expressed in natural law and divine revelation.”9
Similarly, the “sexuality” category does not block the website for the Christian Coalition
(cc.org), which lists “Protecting the Defense of Marriage Act” as one of its top agenda items for
2011, and states that it “will aggressively oppose any efforts to overturn the Defense of Marriage
Act.”10 Nor does the “sexuality” category block the website for Exodus International
(www.exodusinternational.org), which describes itself as the “world’s largest ministry to
individuals and families impacted by homosexuality.”11 Its website states: “Exodus upholds
heterosexuality as God’s creative intent for humanity, and subsequently views homosexual
expression as outside of God’s will….Exodus upholds redemption for the homosexual person as
the process whereby sin’s power is broken, and the individual is freed to know and experience
9

http://kofc.org/un/en/columbia/detail/255760.html
http://www.cc.org/2011_legislative_agenda
11
http://exodusinternational.org/about-us/
10

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their true identity, as discovered in Christ and His Church. That process includes the freedom to
grow into heterosexuality.”12
If Dignity USA condemned homosexuality instead of supporting LGBT people, it
apparently would be placed in URL Blacklist’s category for “religion.” The websites for the
Knights of Columbus, the Christian Coalition, and Exodus International are categorized under
“religion,” as are numerous other websites that condemn homosexuality or oppose gay marriage
from a religious perspective, including the websites for the American Family Association
(www.afa.net) and the Family Research Council (www.frc.org). Each of these websites
categorized by URL Blacklist as “religion” is accessible to students at Camdenton R-III.
Yet, the website for Dignity USA, which “envisions and works for a time when Gay,
Lesbian, Bisexual and Transgender Catholics are affirmed and experience dignity through the
integration of their spirituality with their sexuality, and as beloved persons of God participate
fully in all aspects of life within the Church and Society”13 is placed in the “sexuality” category
and blocked from students. Ex. A-5 (“sexuality” blacklist).
Other religious websites that preach acceptance and love of LGBT people are similarly
removed from the “religion” category and placed in the “sexuality” category simply because of
their LGBT-supportive viewpoint, including the websites for Affirmation
(www.affirmation.org), an organization of gay and lesbian Mormons who seek understanding
and acceptance of gays and lesbians as full and equal members of society and church; Claiming
the Blessing (www.claimingtheblessing.org), an unincorporated coalition of Episcopal
organizations and individuals advocating for full inclusion of all the baptized in all sacraments of
the church; Evangelicals Concerned (www.ecwr.org), a nationwide ministry that encourages and
12
13

http://exodusinternational.org/about-us/
http://dignityusa.org/

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affirms lesbian, gay, bisexual and transgender Christians in their faith; and Catholic Lesbians
(www.cclonline.org), an online support and spiritual community for women who seek to
integrate their lesbian and Catholic identity in their lives. Ex. A-5 (“sexuality” blacklist).
Viewpoint discrimination against Matthew Shepard Foundation and Campus Pride. The
“sexuality” category also discriminates against pro-LGBT websites aimed at young people. It
blocks websites maintained by Matthew Shepard Foundation, including
www.MatthewsPlace.com, which is an online community and resource center for LGBT and
allied youth that provides articles and links on coming out, talking to friends and family,
emergency hotlines, local and national services and centers, faith and spirituality, tips on healthy
living, youth blogs, interviews, and topical online chats. Ex. A-5 (“sexuality” blacklist); Ex. D
(Decl. of Matthew Shepard Foundation). URL Blacklist’s “sexuality category” also blocks
websites maintained by Campus Pride, which provide resources to help LGBT youth find LGBTfriendly colleges; share valuable research on LGBT college campus issues; list activities and
events to teach leadership skills and awareness for LGBT and allied youth; provide information
on scholarships that Campus Pride offers for LGBT and allied youth; list LGBT-friendly college
fairs; provide resources for LGBT and allied youth to feel supported, safe, and welcome on
campus; and provide resources and training opportunities regarding bias and hate crime
prevention on campus. Ex. A-5 (“sexuality” blacklist); Ex. E (Decl. of Campus Pride).
On the other hand, the “sexuality” category does not block the website maintained by
Day of Dialogue (www.dayofdialogue.com), which asks young people, “As a high school or
college student, do you wish your classmates could hear more of the story – like the truth about
God’s deep love for us and what the Bible really says about His redemptive design for marriage
and sexuality? Wouldn’t it be nice if a deeper and freer conversation could happen when

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controversial sexual topics are brought up in your school?”14 Ex. A-5 (“sexuality” blacklist). It
also states, “So God designed us male and female, and intended marriage between a man and a
woman to reflect His image…”15 Day of Dialogue’s website includes anti-LGBT pieces written
by Jeff Johnston, who is described as “a gender and homosexuality analyst for Focus on the
Family.”16 The “sexuality” category also does not block the website for the National
Association for Research & Therapy of Homosexuality, Ex. A-5 (“sexuality” blacklist), which
links to a document stating that “homosexuality is not a healthy, natural alternative to
heterosexuality.”
Moreover, while LGBT students are blocked from accessing Campus Pride’s information
about LGBT-friendly colleges, students can freely access other college guides. For example, the
“sexuality” filter does not prevent students from accessing Hillel’s guide to Jewish life on
campus (www.hillel.org), or a guide for historically black colleges
(www.blackcollegesearch.com), or a survey of top Christian colleges
(www.topchristiancolleges.org). Only college guides for LGBT students are off limits.
These examples of viewpoint discrimination are not isolated instances. The long list of
websites blocked by the “sexuality” filter shows an unmistakable pattern of websites being
blocked solely because they are supportive of LGBT people while comparable websites with
anti-LGBT viewpoints remain accessible. Further examples can be found in Paragraph 46,
Subparagraphs a-oo and Paragraph 50, Subparagraphs a-k of the Complaint.

14

http://www.dayofdialogue.com/
http://www.dayofdialogue.com/2011/01/13/gods-design-for-sexuality/
16
http://www.dayofdialogue.com/2011/01/13/gods-design-for-sexuality/
15

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2.

Camdenton R-III’s “Sexuality” Filter Is Not Reasonable in Light of
the Traditional Role of School Libraries.

Camdenton R-III’s decision to select URL Blacklist and use the discriminatory URL
Blacklist filter for “sexuality” is not reasonable in light of Camdenton R-III’s educational
mission in general and the role of the school library in particular. See Legal Services Corp. v.
Velazquez, 531 U.S. 533, 543 (2001) (“Where the government 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 necessary for the program’s purposes and limitations.”).
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
the usual functioning of the library “because public libraries have traditionally excluded
pornographic material from their other collections.” ALA, 539 U.S. at 212 (plurality). Similarly,
in Bradburn, the Washington Supreme Court reasoned that a public library “has traditionally had
the authority . . . to legitimately decline to include adult-oriented material such as pornography in
its collection. This same discretion continues to exist with respect to Internet materials.”
Bradburn, 231 P.3d at 817.
There is no similar tradition of school libraries censoring particular viewpoints or
excluding materials that provide support to LGBT people. To the contrary, Article II of the
American Library Association’s Library Bill of Rights states that “[l]ibraries should provide
materials and information presenting all points of view on current and historical issues.”
Similarly, ALA Policy Statement 53.1.11 provides that library collections should include
“materials and resources that reflect a diversity of political, economic, religious, social, minority,
and sexual issues,” and ALA Policy Statement 53.1.15 provides that “librarians have an

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obligation to resist efforts that systematically exclude materials dealing with any subject matter,
including sex, gender identity or expression, or sexual orientation.”17
The District asserts that it provides Internet access in order to fulfill the educational
mission of the school. Yet the school allows free access to topics with only a tenuous connection
at most to educational research, such as astrology, entertainment, games, jewelry, online games,
pets, shopping, sports, and vacation. At the same time, the District’s “sexuality” filter blocks
access to important resources that have a far closer connection to student learning and personal
development. Indeed, the topics of minority groups and changing social institutions are critical
components of the Camdenton R-III school curriculum at all levels.18 The social studies
department at Camdenton High School is charged with the responsibility for helping students
“succeed in a culturally diverse workplace” and “develop tolerance for other beliefs, values and
attitudes.” http://camdentonschools.schoolwires.net/2144203111292777/site/default.asp. Far
from furthering the educational mission of the school library, the web filtering at Camdenton R-

17

http://www.ala.org/ala/aboutala/governance/policymanual/updatedpolicymanual/section2.pdf.

18

Under curricular standards set by the Missouri Department of Education, students in grades K though 8
must be able to discuss: constitutional principles of majority rule and minority rights; respect for the
rights of others and treating others fairly; how individual rights are protected; and how the rights and
responsibilities of individuals relate to events in US history and everyday life. See
http://dese.mo.gov/divimprove/curriculum/GLE/documents/cur-ss-gle-0907.pdf. Similarly, high school
students must study: “the evolution of American democracy, its ideas, institutions and political
processes,” including the “struggle for civil rights,” “the changing character of American society and
culture” in “arts and literature, education and philosophy, religion and values, and science and
technology,” “major social institutions” such as “family, education, religion, economy and government”
and “how they fulfill human needs,” “the causes, consequences and possible resolutions of cultural
conflicts,” the “[e]ffect of laws and events on relationships,” the “effect of personal and group
experiences on perceptions,” and the “relationships of the individual and groups to institutions and
cultural traditions.” See http://dese.mo.gov/divimprove/curriculum/GLE/documents/cur-ss-cle-0907.pdf.

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III directly undermines the District’s educational goals by systematically excluding LGBT
resources.19
D.

Camdenton R-III Cannot Justify Its Decision To Use the Discriminatory
URL Blacklist System.

When a public school chooses to restrict Internet library resources it must select a
reasonable and viewpoint-neutral method of doing so. Instead of purchasing a filtering system
from a professional company that does not engage in viewpoint discrimination, Camdenton R-III
made the deliberate choices to download the database from URL Blacklist and block all websites
categorized by URL Blacklist as “sexuality.” Camdenton R-III cannot demonstrate that its
decisions to select URL Blacklist and enable the “sexuality” filter were reasonable methods of
complying with CIPA and cannot demonstrate that it had a sufficiently compelling reason to
justify viewpoint discrimination.
It is no defense for Camdenton R-III to argue that the viewpoint-discriminatory
categories in its web-filtering software are being created by URL Blacklist and not directly by
the school district. The First Amendment does not allow public schools to use any private rating
or filtering system that is assembled by a third party without indicia of reliability or viewpoint
neutrality. For example, when students in Borger by Borger v. Bisciglia, 888 F. Supp. 97 (E.D.
Wis. 1995), challenged a school district’s decision to ban all movies rated “R” by the Motion
Picture Association of America (“MPAA”), the court required the district to “establish[], through
literature on the MPAA, that relying on the ratings is a reasonable way of determining which
movies are more likely to contain harsh language, nudity, and inappropriate material for high
19

Cf. Burnham v. Ianni, 119 F.3d 668, 676 (8th Cir. 1997) (“Since the purpose of the [display] case was
the dissemination of information about the history department, the suppression of exactly that type of
information was simply not reasonable.”); Robb v. Hungerbeeler, 370 F.3d 735, 743 (8th Cir. 2004)
(“Considering the purpose of the [Adopt a Highway] program . . . there is simply no rationale for
excluding the diverse array of groups from the program that the regulation permits the State to bar from
participation.”).
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school students.” Id. at 100-01. Similarly, in this case, the District has the burden of
establishing that URL Blacklist is a reasonable and viewpoint-neutral method of filtering
sexually explicit content. If the school district selects a filtering system that engages in
viewpoint discrimination, the district is responsible for justifying that choice. Cf. Ariz.
Governing Comm. for Tax Deferred Annuity and Deferred Comp. Plans v. Norris, 463 U.S.
1073, 1089 (1983) (holding that when government employer selects private annuity plans to
offer to its employees, the government is “legally responsible for the discriminatory terms on
which annuities are offered by the companies”).
In this case, instead of purchasing software from a commercial filtering company,
Camdenton R-III has chosen to use a filtering system that falls far below professional standards.
As discussed above, URL Blacklist is not a typical commercial Internet filtering company. It is a
website with no physical address or phone number, and it creates its blacklists by collecting and
aggregating other lists. URL Blacklist does not purport to categorize websites according to their
educational content or the pedagogical needs of students. Moreover, URL Blacklist specifically
warns that “[t]he blacklist does contain sites which are wrongly categorized which is due to the
bulk of the entries being collecting using automatic scripts.” It also states that “[t]he blacklist
does not only contain sites that are considered ‘bad’ but it also contains many other categories. . .
. Being listed does not infer that the site is ‘bad’—these are just lists of sites.” URL Blacklist’s
“sexuality” category captures websites in a manner that is not viewpoint-neutral by blocking
websites that are supportive of LGBT rights but not those that oppose LGBT rights.
Professional filtering companies do not engage in the same viewpoint-discrimination
against LGBT websites by grouping LGBT-supportive websites together with sexually explicit
content. Better, more reputable Internet filtering services are able to distinguish websites with

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sexually explicit content from websites that discuss religious, legal, political, and social issues
relating to sexuality. They are able to screen websites in a viewpoint-neutral manner.
Camdenton R-III has the option of using such services.
It is also no defense for Camdenton R-III to unblock individual websites upon request.
The URL Blacklist database is revised and updated on a continuing basis, and, as a result, new
pages and new content will likely be blacklisted and blocked in the future. Moreover, requiring
Plaintiffs and other organizations with pro-LGBT websites to make requests with the District for
their websites to be unblocked places a burden on Plaintiffs’ speech that is not placed on antiLGBT websites. “First Amendment freedoms would be of little value if speakers had to obtain
permission of their audiences before advancing particular viewpoints.” 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). Moreover, requiring students to request special access to Plaintiffs’ websites sends a
stigmatizing message that the websites are somehow different or less acceptable than comparable
websites that condemn homosexuality. See Pratt, 670 F.2d at 779 (by restricting access to films,
the school had impermissibly “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”);
Counts, 295 F .Supp. 2d at 999 (requiring student to affirmatively request access to Harry Potter
book sends a message that it is “a ‘bad’ book” that students should not read).
To be sure, the plurality in ALA stated that, even though the “pornography” filters
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

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discrimination adopted by Camdenton R-III is very different than the unavoidable over-blocking
at issue in ALA. Unlike the pornography filters at issue in ALA, the “sexuality” filter does not
target only pornographic content; rather, it operates in a manner that blocks content supportive of
LGBT people regardless of whether the content is 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, 539 U.S. at 209
(Breyer, J., concurring in judgment) (“[N]o one has presented any clearly superior or better
fitting alternatives.”); id. at 207 n.3 (plurality). In light of these technological limitations, it was
“reasonable” for libraries to use filtering software that engaged in unavoidable over-blocking.
Id. at 208. Unlike the libraries in ALA, Camdenton R-III has readily available alternatives that
would allow it to filter out sexually explicit content without posing the same First Amendment
problems.
Moreover, a mere desire to reduce costs cannot justify the use of a filtering system that
engages in invidious viewpoint discrimination. Cf. Boorstin, 644 F. Supp. at 816 (Librarian of
Congress cannot respond to budget cutbacks by removing library items in a viewpointdiscriminatory manner); Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 135-36
(1992) (government may not discriminate on the basis of content in order to recoup cost or raise
revenue); Shapiro v. Thompson, 394 U.S. 618, 633 (1969) (government “may legitimately
attempt to limit its expenditures” but “may not accomplish such a purpose by invidious
distinctions between classes of its citizens”). Even if using a viewpoint-neutral filter is more
expensive than using a viewpoint-discriminatory one, Camdenton R-III must select a filtering
system that allows the District to comply with its constitutional obligations.

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II.

Plaintiffs Will Suffer Irreparable Harm Without a Preliminary Injunction
Plaintiffs will suffer irreparable harm if an injunction is not issued. Absent an injunction,

students will be prevented from accessing Plaintiffs’ websites that are supportive of LGBT rights
and individuals and/or provide useful information and advice for LGBT individuals, while, at the
same time, students are given access to websites that take anti-LGBT positions. This
discrimination against Plaintiffs’ protected free speech constitutes irreparable harm. It is wellsettled 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 opinion). Because Plaintiffs have established they are likely to succeed on the merits
of their First Amendment claim, they have also established irreparable harm as the result of the
deprivation. See Marcus v. Iowa Pub. Television, 97 F.3d 1137, 1140-41 (8th Cir.1996).
III.

The Balance of Harms Favors an Injunction
“The balance of equities … generally favors the constitutionally-protected freedom of

expression.” Nixon, 545 F.3d at 690. Although it is presumed that Plaintiffs will suffer
irreparable harm absent an injunction, there is no harm to Defendants if an injunction issues.
IV.

An Injunction Will Serve the Public Interest
“It is always in the public interest to protect constitutional rights.” Nixon, 545 F.3d at

689; accord Wickersham 371 F. Supp. 2d at 1076 (explaining that “[t]he public has an interest in
preventing constitutional violations, particularly ones involving speech”). The public interest
thus supports an injunction that is necessary to prevent a government entity from violating the
Constitution. Doe v. S. Iron R-1 Sch. Dist., 453 F. Supp. 2d 1093, 1103 (E.D. Mo. 2006).
Because Plaintiffs have demonstrated the likelihood that they will succeed on the merits, the
public interest is served by preventing the continuation of likely unconstitutional censorship of
Plaintiffs’ speech.

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CONCLUSION
The District’s Internet filtering software discriminates against websites with a LGBTsupportive viewpoint while allowing students access to websites that take anti-LGBT positions.
Because the Supreme Court has held that viewpoint-based discrimination violates the free speech
clause of the U.S. Constitution, Plaintiffs are likely to succeed on the merits of this action. The
loss of their First Amendment freedom constitutes irreparably injury to Plaintiffs, while
Defendants will not be harmed if the Court issued an injunction barring the District from
violating Plaintiffs’ First Amendment rights. Moreover, protecting Plaintiffs’ constitutional
rights serves the public interest. Accordingly, this Court should issue a preliminary injunction to
prevent the District from continuing to use Internet filtering software that blocks access to
LGBT-supportive web content while permitting access to anti-LGBT web content.
Respectfully Submitted,
THOMPSON COBURN LLP
By

/s/ A. Elizabeth Blackwell
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]

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[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]
* Pro Hac Vice Motion to Follow
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE
I hereby certify that on August 16, 2011, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF system, and I hereby certify that this document has been
mailed by United States Postal Service to the following non CM/ECF participants:
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/ A. Elizabeth Blackwell

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