Bradburn et al v. North Central Regional Library District

Filing 111

MEMORANDUM re 109 Order, re Response to Certified Question by North Central Regional Library District. (Attachments: # 1 Exhibit, # 2 Exhibit)(Adams, Thomas)

Bradburn et al v. North Central Regional Library District

Doc. 111

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DEFENDANT NCRL'S MEMORANDUM REGARDING RESPONSE TO CERTIFIED QUESTION - 1
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Hon. Edward F. Shea Thomas D. Adams Celeste Mountain Monroe KARR TUTTLE CAMPBELL 1201 Third Avenue, Suite 2900 Seattle, Washington 98101-3028 [phone] Attorneys for North Central Regional Library District UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON AT SPOKANE SARAH BRADBURN, PEARL CHERRINGTON, CHARLES HEINLEN, and THE SECOND AMENDMENT FOUNDATION, ) ) ) ) ) Plaintiffs, ) ) v. ) ) NORTH CENTRAL REGIONAL ) LIBRARY DISTRICT, ) ) Defendant. ) ________________________________ )

NO. CV-06-327-EFS DEFENDANT NCRL'S MEMORANDUM REGARDING RESPONSE TO CERTIFIED QUESTION

The analysis of the Washington Supreme Court in Bradburn, et al. v. North Central Reg. Lib. Dist., 168 Wn.2d 789, 231 P.3d 166 (2010)

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(" radburn" answers all legal issues held in abeyance by this Court' B ) s September 30, 2008 order. (Dkt. 96). Neither Defendant North Central

Regional Library District (" CRL" nor Plaintiffs1 contend that genuine issues N ) of material fact remain unresolved. Accordingly, this Court should decide the pending cross-motions for summary judgment at this time based on Bradburn and the parties'previous submissions. I. Bradburn resolves Plaintiffs'Article I, Section 5 claim.

On May 6, 2010, the Washington State Supreme Court answered this Court' certified question, holding that: s a library can, subject to the limitations set forth in this opinion, filter Internet access for all patrons, including adults, without violating article I, section 5 of the Washington State Constitution. Bradburn, 168 Wn.2d at 793. The Bradburn court stated that it would conclude NCRL' filtering policy s does not violate article I, section 5, on the record presented but recognized this Court must apply the decision to the case. See Bradburn, 168 Wn.2d at 818. Because Bradburn unequivocally held that NCRL' filtering policy was s

See, e.g., Plaintiffs'Opposition to NCRL' Motion for Summary Judgment (Dkt. 53, s pg. 1, lns. 2-3): " he facts crucial to resolving this case are not in dispute... .." T DEFENDANT NCRL'S MEMORANDUM REGARDING RESPONSE TO CERTIFIED QUESTION - 2
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consistent with article I, section 5 of the Washington State Constitution, summary judgment should be entered for NCRL on this claim.2 II. Plaintiff' First Amendment claim is foreclosed by ALA s as explained in Bradburn

Although Bradburn literally deals with Plaintiffs' state constitutional claim, the court drew heavily upon First Amendment law in evaluating Plaintiffs'challenges to NCRL' filtering policy. Thus, the Bradburn Court' s s analysis is highly instructive in resolving Plaintiffs'federal claim. The First Amendment claim is based on two contentions: first, that NCRL' filtering policy is overbroad;3 and second, that NCRL' filtering policy s s is a constitutionally impermissible content-based restriction on speech. Both arguments fail in light of United States v. American Library Ass' , 539 U.S. n 194, 123 S. Ct. 2297, 156 L. Ed. 2d 221 (2003) (" LA" and other federal A ) precedent as explained in Bradburn.

In dealing with questions of state law, federal courts are bound by the decisions of the state' highest court. See LaFrance Corp. v. Werttemberger, 2008 LEXIS 98741 at *4 s (W.D. Wash. 2008) citing Glendale Assocs., Ltd. v. NLRB, 347 F.3d 1145, 1154 (9th Cir. 2003). Plaintiffs claim overbreadth in " ategorizat ions that fail to track constitutional c requirements, filtering errors, and NCRL' policy of blocking entire web sites when a single s page is deemed harmful to minors." Bradburn, 168 Wn.2d at 804. DEFENDANT NCRL'S MEMORANDUM REGARDING RESPONSE TO CERTIFIED QUESTION - 3
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A.

NCRL' filtering policy is not overbroad. s In evaluating Plaintiffs'overbreadth arguments for, the Bradburn court

followed First Amendment methodology: Accordingly, in deciding whether the filtering policy suffers from overbreadth under article I, section 5, our analytical approach aligns with the approach taken under the First Amendment. Bradburn, 168 Wn.2d at 801. In doing so, the Bradburn court noted that a majority (not a plurality) of the U.S. Supreme Court reached agreement in ALA on several key points, including: · " ublic forum analysis is inappropriate in determining whether a library p can constitutionally filter certain Internet content." Bradburn, 168 Wn.2d at 804; · " trict scrutiny does not apply [to a library' collection decisions]." Id. s s at 805; and · libraries must exercise discretion when building and maintaining a collection and filtering policies aid in the collection of materials, not the removal of materials after having been selected. Id. (emphasis supplied). Based on these and other rulings from ALA, the Bradburn court concluded that " library simply does not have to include all constitutionally protected a

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materials in its collection" and that a filtering policy that denies access to particular categories of material is not necessarily overbroad. Bradburn, 168 Wn.2d at 808. Nothing in ALA or other federal First Amendment law warrants a different analysis and conclusion than that reached by the Bradburn court. B. NCRL' filtering policy is not an impermissible content restriction under s the First Amendment. The Bradburn court also drew upon federal First Amendment principles in rejecting the contention that NCRL' filtering policy is an unconstitutional s content-based restriction on speech. The Bradburn court began its analysis of

this issue by rejecting Plaintiffs' assertion that content-based restrictions are presumptively invalid and subject to strict scrutiny. Bradburn, 168 Wn.2d at 812 citing National End. for Arts v. Finley, 524 U.S. 569, 585, 118 S. Ct. 2168, 141 L. Ed. 2d 500 (1998)(" ontent-based considerations that may be taken into c account in the grant-making process are a consequence of the nature of arts funding" and Arkansas Educ. Tele. Comm. v. Forbes, 523 U.S. 666, 672-73, ) 118 S. Ct. 1633, 140 L. Ed. 2d 875 (1998). Instead, the Bradburn court agreed with ALA that Internet access in a public library is not subject to public forum analysis or heightened scrutiny. In light of the historical civic role of the public library, and the discretion a library must have to make judgments about the
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makeup of its collection, the Bradburn court held that a filtering policy is constitutionally-permissible if it is reasonable in light of the library' mission s and policies and is viewpoint neutral. See Bradburn, 168 Wn.2d at 811. The Bradburn court determined that NCRL' filtering policy met that s standard, noting that: · NCRL' essential mission is to promote reading and lifelong learning. s Thus, it is reasonable to restrict Internet access to maintain an environment conducive to study and contemplative thought; · NCRL serves as the de facto school library in more than half of its branches. Unfiltered Internet access is not well-suited to the education of

children and may adversely affect other patrons and library staff as well; · NCRL patrons have practical alternatives when content is blocked; and · NCRL' filtering policy draws no distinctions based on the speaker' s s viewpoint. Bradburn, 168 Wn.2d at 816-17. The Bradburn court correctly applied ALA and other First Amendment principles in evaluating Plaintiffs'state constitutional claim. The operative facts surrounding Plaintiffs' First Amendment claim, and the rational basis test against which the facts are judged, are no different. Plaintiffs may advocate for

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heightened scrutiny but federal law does not support them. Indeed, in Ass' . of n Christian Schools v. Stearns, No. 08-56320, 2010 U.S. App. LEXIS 745, at *3 (9th Cir. Jan. 12, 2010),4 the Ninth Circuit recently cited ALA, Finley, and Forbes (as did the Bradburn court) in recognizing that content-based restrictions on speech are subject only to rational basis scrutiny when the government is performing a function requiring subjective judgment. The Court wrote: The Supreme Court has rejected heightened scrutiny where, as here, the government provides a public service that, by its nature, requires evaluations of and distinctions based on the content of speech. Similarly, a Texas district court recently relied upon ALA and Finley for the same principle: when a public service requires the drawing of content-based distinctions, the decisions that are made are subject to rational basis review. Institute for Creation for Research Graduate School v. Texas Higher Educ. Coordinating Bd., No. A-09-CA-382-SS, 2010 U.S. Dist. LEXIS 60699, at *4647 (W.D. Tex. June 18, 2010). As these decisions demonstrate, Bradburn' application of a rational basis s review to NCRL' filtering policy follows from a correct interpretation of ALA s
In Stearns, the court affirmed a district court' determination that the University of s California' admission policy met First Amendment and Equal Protection standards on its s face and as applied. DEFENDANT NCRL'S MEMORANDUM REGARDING RESPONSE TO CERTIFIED QUESTION - 7
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and First Amendment principles. Plaintiffs nevertheless urge this Court to strike down NCRL' filtering policy because of their view that ALA requires filtering s to stop when an adult patron requests it. ALA does not stand for this proposition. Instead, ALA supports libraries'use of filtering in making collection decisions as long as a mechanism exists for adult patrons to seek the unblocking of erroneously blocked content consistent with the library' legitimate collection s development policies. mechanism in place. 539 U.S. at 214-19. NCRL has precisely such a Nothing in ALA

See Bradburn, 168 Wn.2d at 798.

empowers an adult patron to override the reasonable decisions of a library about the access to internet content. Indeed, in his concurring opinion Justice Breyer specifically noted that libraries might, by local law or practice, restrict the ability of patrons to obtain overblocked internet material. 539 U.S. at 219-220.5 ALA, in any event, is less about the nuances of the concurring and plurality opinions than the central idea that public libraries have broad discretion to shape their collection and their reasonable decisions are not subject to heightened scrutiny. As the Bradburn court observed, "he crux of the issue is t NCRL' discretion regarding what will be added to its collection." Bradburn, s
Like the plurality, Justice Breyer observed pragmatically that although filtering software is imperfect, " o one has presented any clearly superior or better fitting alternatives." 539 U.S. at 219. n
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168 Wn.2d at 810. As to that issue, there simply is no imperative that a public library provide adult patrons access to all constitutionally-protected content available on the internet. Under ALA, libraries may appropriately use internet filtering for collection development if mechanisms exist for patrons to obtain access to material inadvertently blocked. The Bradburn court applied this

essential principle from ALA and this Court should do the same. III. Unpublished Authorities

Pursuant to LR 7.1(g)(3), NCRL attaches copies of Ass' . of Christian n Schools v. Stearns, 2010 Lexis 745 (9th Cir. 2010) and Institute for Creation for Research v. Texas Higher Educ., 2010 Lexis 60699 (W.D. Tex. 2010). IV. Conclusion

For these reasons, and for the reasons set forth in its earlier summary judgment submissions, NCRL asks this Court to enter summary judgment in its favor on Plaintiffs'claims under article I, section 5 of the Washington State Constitution and the First Amendment to the U.S. Constitution. // // // //
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DEFENDANT NCRL'S MEMORANDUM REGARDING RESPONSE TO CERTIFIED QUESTION - 10
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DATED this 2nd day of July, 2010 KARR TUTTLE CAMPBELL By:/s/ Thomas D. Adams Thomas D. Adams, WSBA #18470 E-mail ­[e-mail] Celeste Mountain Monroe, WSBA #35843 E-mail ­[e-mail] Attorneys for Defendant North Central Regional Library District KARR TUTTLE CAMPBELL 1201 Third Ave., Ste. 2900 Seattle, WA 98101 Telephone: [phone] Facsimile: 206.682.7100

K AR R T UTT LE C AMP BE LL
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Duncan Manville Savitt Bruce & Willey, LLP 1325 Fourth Ave., Ste. 1410 Seattle, WA 98101 Catherine Crump American Civil Liberties Union Foundation 125 Broad Street, 17th Floor New York, NY 10004

CERTIFICATE OF SERVICE I hereby certify that on July 2, 2010, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the persons listed below:

Aaron Caplan Loyola Law School Los Angeles 919 Albany St. Los Angeles, CA 90015 Sarah A. Dunne American Civil Liberties Union of Foundation 705 Second Ave., Ste. 300 Seattle, WA 98103 Washington

KARR TUTTLE CAMPBELL

By: /s/ Heather L. White Heather L. White [e-mail]

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1201 Third Avenue, Suite 2900, Seattle, Washington 98101-3028 Telephone [phone], Facsimile [phone]