Bradburn et al v. North Central Regional Library District
Filing
120
ORDER GRANTING NCRL'S MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, AND CLOSING FILE; denying 39 Plaintiffs' Motion for Summary Judgment; granting 28 Defendant's Motion for Summary Judgment. Case closed. Signed by Judge Edward F. Shea. (CV, Case Administrator)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
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SARAH BRADBURN, PEARL
CHERRINGTON, CHARLES HEINLEN,
and SECOND AMENDMENT
FOUNDATION,
ORDER GRANTING NCRL'S MOTION
FOR SUMMARY JUDGMENT, DENYING
PLAINTIFFS' MOTION FOR SUMMARY
JUDGMENT, AND CLOSING FILE
Plaintiffs,
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v.
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NO. CV-06-0327-EFS
NORTH CENTRAL REGIONAL LIBRARY
DISTRICT,
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Defendant.
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Following the Washington Supreme Court's certification ruling, the
question remaining from the parties' summary judgment motions, ECF Nos.
28 & 39, is whether Defendant North Central Regional Library District's
(NCRL)
internet-filtering
restriction
Constitution.
thereby
policy
violating
is
the
overbroad
First
or
a
Amendment
content-based
to
the
U.S.
After reviewing the submitted materials, considering the
relevant authority, and hearing from counsel during an October 25, 2011
hearing,1 the Court is fully informed.
For the reasons given below, the
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Duncan Manville appeared on behalf of Plaintiffs Sarah Bradburn,
Pearl Cherrington, Charles Heinlen, and the Second Amendment Foundation.
Thomas Adams appeared on NCRL's behalf.
ORDER ~ 1
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Court
grants
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judgment.
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A.
NCRL
summary
judgment
and
denies
Plaintiffs
summary
Facts2
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With the assistance of federal funding, NCRL provides Internet
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access at its twenty-eight libraries.
Because Congress mandates that a
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library receiving federal funds in order to provide Internet access must
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restrict patrons' Internet access to obscene and child pornographic
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materials, NCRL utilizes a filter (FortiGuard) to restrict its patrons'
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Internet access to such materials.
See 20 U.S.C. § 9134(f) (Children's
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Internet Protection Act (CIPA), which also permits a library to restrict
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additional materials).
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and Collection Development Policy (collectively, "Policy"), NCRL sets
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FortiGuard's filtering parameters to filter web pages and sites that
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depict hacking, phishing, proxy avoidance, malware, and spyware; display
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nudity; promote sexuality; or allow gambling. Not all of the blocked web
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pages and sites contain constitutionally-unprotected speech. Therefore,
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as a result of the FortiGuard filter, constitutionally-protected speech
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is blocked and patrons, even adult patrons, are unable to view the
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material.
According to both its Internet Public Use Policy
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To help reduce the number of mis-blocked web pages and sites, NCRL
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allows patrons to submit requests to unblock a specific web page or site.
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If NCRL believes that a blocked web page or site is appropriate for
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The parties agree that the detailed undisputed facts contained in
the Court's prior Order, ECF No. 96, still apply. Accordingly, the Court
only provides the basic facts herein.
ORDER ~ 2
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viewing by all of its patrons, it adjusts FortiGuard's parameters so that
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the web page or site is unblocked for future Internet use.
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Through this lawsuit, Plaintiffs challenge the constitutionality of
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the Policy
under
both the
Washington
and
U.S. Constitutions.
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September 30, 2008, the Court certified the Washington-constitutional
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question to the Washington Supreme Court.
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the Washington Supreme Court answered the certified question, finding
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that "a public library may, consistent with article I, section 5 of the
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Washington State Constitution, filter Internet access for all patrons
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without disabling the filter to allow access to web sites containing
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constitutionally protected speech upon the request of an adult library
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patron."
ECF No. 97.
On
On June 7, 2010,
ECF No. 110 at 31.
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Now remaining for the Court to address is whether NCRL's decision
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to not disable the Internet filter at the request of an adult patron
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violates the First Amendment to the U.S. Constitution.
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B.
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Authority and Analysis
The First Amendment commands:
"Congress shall make no law . . .
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abridging the freedom of speech, or of the press; or of the right of the
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people peaceably to assemble, and to petition the Government for a
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redress of grievance." U.S. Const. amend. I. The government can violate
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the First Amendment in many ways, including enacting a statute that is
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overbroad or impermissibly regulates the content of speech.3
Ashcroft,
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The freedom of speech has limits as certain types of speech, such
as defamation, obscenity, and pornography produced with children, are
unprotected by the First Amendment.
ORDER ~ 3
Ashcroft v. Free Speech Coal., 535
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535 U.S. at 244.
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itself or restrict access to the speech:
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violate the First Amendment.
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529 U.S. 803, 812 (2000).
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The government restriction may either restrict speech
both forms of restrictions may
United States v. Playboy Entm't Gp., Inc.,
The parties agree that NCRL, a government entity, restricts its
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patrons' access to speech on the Internet.
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what level of judicial scrutiny the Court is to apply to NCRL's access-
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to-speech restriction.
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and Ninth Circuit decisions, the Court concludes it must apply rational
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The parties disagree as to
As explained below, based on U.S. Supreme Court
review to the Policy.
First, a majority of the Supreme Court ruled that public-forum
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analysis
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appropriately exercised its collection-decision-making authority. United
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States
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(hereinafter "ALA"). Second, the Ninth Circuit held that rational review
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is used where the "government provides a public service that, by its
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nature, requires evaluations of and distinctions based on the content of
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speech."
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643 (9th Cir. 2010) (unpublished opinion).
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As
is
v.
not
Am.
used
Library
to
determine
Ass'n,
539
whether
U.S.
94,
a
public
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&
library
215-16
has
(2003)
Ass'n of Christian Sch. Int'l v. Stearns, 362 Fed. Appx. 640,
a
public
library,
NCRL
pursues
the
"worthy
missions"
of
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facilitating learning, research, and recreational pursuits.
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U.S. at 203.
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not required to provide "universal coverage" and enjoys "broad discretion
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to decide what material to provide to [its] patrons."
It is undisputed that to fulfill these missions, NCRL is
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U.S. 234, 245-56 (2003).
ORDER ~ 4
ALA, 539
Id. at 204
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(internal
citation
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discretion is limited to its written materials because the grant of this
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discretion
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However, these limitations are not the only rationale for granting a
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library broad discretion to make "content-based judgments when deciding
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what private speech to make available to the public."
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library's "need to exercise judgment in making collection decisions
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depends [also] on its traditional role in identifying suitable and
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worthwhile material; [and] it is no less entitled to play that role when
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it collects material from the Internet than when it collects material
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from any other source."
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almost unlimited amount of information available on the Internet, the
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Supreme Court recognized that "libraries cannot possibly segregate, item
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by item, all the Internet material that is appropriate for inclusion from
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all that is not."
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patrons' Internet access based on the speech's content.
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Court subjects NCRL's filtering process to rational review.
is
removed).
based
on
Id.
a
Plaintiffs
library's
Id. at 208.
space
argue
and
that
NCRL's
fiscal
broad
limitations.
Id. at 204.
A
Given the vast, ever changing, and
Accordingly, NCRL is required to evaluate its
Therefore, the
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Scrutinizing the undisputed facts under rational review, the Court
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finds NCRL's use of FortiGuard to filter its patrons' Internet access and
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its decision to not disable the filter upon an adult patron's request
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complies with the First Amendment.
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an Internet policy that can be implemented consistently throughout its
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twenty-eight libraries, and it did so by implementing the Policy. NCRL's
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libraries are relatively small in size and only one has a partition
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separating the children's portion of the library from the remainder of
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the
library.
ORDER ~ 5
Blocking
It is reasonable for NCRL to develop
Internet
sites
and
pages
that
contain
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constitutionally-protected material deemed suitable only for adults helps
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ensure that the environment at NCRL libraries is consistent with its
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mission of providing learning and research opportunities for individuals
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of all ages.
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And
This is a legitimate government interest.
NCRL's
practice
of
requiring
a
patron to
request
that a
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particular web site or page be unblocked is an efficient and rationale
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way for NCRL to determine whether that web site or page is consistent
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with its policies and mission, especially in light of the Internet's
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continuous change.
NCRL simply does not have the resources to have its
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staff review the vast and limitless amount of sites and pages on the
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Internet to determine whether they are consistent with its policies and
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mission.
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policies and mission, while at the same time complying with CIPA.
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NCRL's unblocking-request process reasonably accomplishes its
The Court acknowledges that this process may frustrate some adult
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patrons.
However, without the funding provided by CIPA, NCRL likely
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could not provide any Internet access to its patrons.
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great disservice to the NCRL patrons, many of whom live in rural areas
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where reliable, affordably-priced Internet access may be difficult to
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obtain.
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C.
This would be a
Conclusion
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Because NCRL's Policy, including not disabling the Internet filter
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at the request of an adult patron, is reasonable, there is no overbreadth
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or impermissible content-based First Amendment violation. For the above-
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given reasons, IT IS HEREBY ORDERED:
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1.
NCRL’s Motion for Summary Judgment, ECF No. 28, is GRANTED.
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2.
Plaintiffs’ Motion for Summary Judgment, ECF No. 39, is DENIED.
ORDER ~ 6
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3.
Judgment is to be entered in NCRL's favor with prejudice.
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4.
This file shall be CLOSED.
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IT IS SO ORDERED. The District Court Executive is directed to enter
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this Order and provide copies to counsel.
DATED this
10th
day of April 2012.
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s/ Edward F. Shea
EDWARD F. SHEA
United States District Judge
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Q:\Civil\2006\0327.post.certif.frm
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ORDER ~ 7
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