Parents, Families, & Friends of Lesbians & Gays, Inc. v. Camdenton R–III Sch. Dist.

• Decision Date: 15 February 2012
• Docket Number: Case No. 2:11–CV–04212.
• Citation: 853 F.Supp.2d 888,283 Ed. Law Rep. 261
• Parties: PARENTS, FAMILIES, AND FRIENDS OF LESBIANS AND GAYS, INC., et al., Plaintiffs, v. CAMDENTON R–III SCHOOL DISTRICT, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

853 F.Supp.2d 888

283 Ed. Law Rep. 261

PARENTS, FAMILIES, AND FRIENDS OF LESBIANS AND GAYS, INC., et al., Plaintiffs,

v.CAMDENTON R–III SCHOOL DISTRICT, et al., Defendants.

Case No. 2:11–CV–04212.

United States District Court,

W.D. Missouri,

Central Division.

Feb. 15, 2012.

Anthony E. Rothert, Grant R. Doty, American Civil Liberties Union of Eastern Missouri, Jeffrey R. Fink, Mark S. Sableman, Allison N. Manger, Ann Elizabeth Blackwell, Thompson Coburn LLP, St. Louis, MO, Leslie Cooper, ACLU, James D. Esseks, Joshua A. Block, New York, NY, for Plaintiffs.

Thomas A. Mickes, Elizabeth A. Helfrich, Mickes Goldman O'Toole, LLC, St. Louis, MO, David A. Cortman, Alliance Defense Fund, Lawrenceville, GA, Jeremy D. Tedesco, Alliance Defense Fund, Scottsdale, AZ, Michael K. Whitehead, Whitehead Law Firm, LLC, Kansas City, MO, Travis C. Barham, Alliance Defense Fund, Columbia, TN, for Defendants.

ORDER

NANETTE K. LAUGHREY, District Judge.

Pending before the Court is Plaintiff Parents, Families, and Friends of Lesbians and Gays's (“PFLAG”), and others', Motion for Preliminary Injunction [Doc. # 6] pursuant to Federal Rule of Civil Procedure 65(a). PFLAG claims that Defendant Camdenton School District, and others, implemented internet filtering software that systematically blocks websites expressing a positive viewpoint toward lesbian, gay, bisexual, and transgender (“LGBT”) individuals, in violation of PFLAG's freedom of expression under the First Amendment. The Court held a hearing on October 27, 2011. For the following reasons, the Court GRANTS the motion.

I. Background

Plaintiffs are PFLAG, DignityUSA, the Matthew Shepard Foundation, and Campus Pride—all publishers of websites that provide supportive resources directed at LGBT youth. Jane Doe, a student at Camdenton school district proceeding under a pseudonym, is also a Plaintiff. Defendants are Camdenton School District and Timothy Hadfield, as Superintendent of Camdenton School District.

Camdenton uses a custom internet-filter system based around a free product called URL Blacklist. URL Blacklist comprises several “filters”—lists of blocked websites arranged by subject matter—each of which network administrators can enable or disable to control the subject matter that their network users can access on the internet. Camdenton's internet-filter system enables the following URL Blacklist filters: advertisements, pornography, mixed adult, and sexuality. Camdenton claims that it uses the URL Blacklist to comply with the Children's Internet Protection Act's (“CIPA's”). This requires schools to protect children using school computers from viewing visual depictions that are obscene, child pornography, or harmful to minors. 47 U.S.C. § 254(h)(6)(B)(i).

Camdenton also claims that its computer system is customized because its IT staff has manually created white lists and black lists to open or close certain websites. However, the URL Blacklist program is the default filter blocking all URL Blacklist sites until Camdenton's staff intervenes. So Camdenton's customization is only triggered once a student or school official asks to open or close a specific website. Otherwise, the URL Blacklist controls a student's access to the internet. However, once a website is put on the white list by Camdenton, the URL Blacklist filter no longer controls and access is automatic thereafter.

Camdenton has two procedures in place by which a student can request access to a website that is blocked by a URL Blacklist filter. The first is to send an email to the school superintendent requesting permission to access the website. The second is through a request template presented to the user each time the user tries to access a blocked website. This template has a space for a username and a space for any comments. Camdenton responds to these requests by manually checking the requested site for appropriateness and then granting or denying access within twenty-four hours of the request. During the five or six years this procedure has been in place, Camdenton has received around 2,000 requests, and has granted around 80% of them. (Tr. 95).

PFLAG asserts that this system, as currently configured, systematically burdens websites expressing a positive viewpoint toward LGBT individuals. PFLAG requests: “An injunction prohibiting Defendants from continuing to use Internet filtering software that blocks access to LGBT-supportive viewpoints while permitting access to anti-LGBT viewpoints.” [Doc. # 1 at 35].

II. Findings of Fact

The Court finds the following facts for purposes of this motion. These facts are not binding at trial on the merits. Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). But evidence received during the hearing for preliminary injunction “that would be admissible at trial becomes part of the trial record and need not be repeated at trial.” Fed.R.Civ.P. 65(a)(2).

A. The Court Finds That URL Blacklist Discriminates Against Websites That Express a Positive View Toward LGBT Individuals

The Court finds that URL Blacklist systematically blocks websites that express a positive view point toward LGBT issues.

The URL Blacklist website states that it compiles its lists of blacklisted internet domain names from other websites. The one website that URL Blacklist explicitly states that it draws from is dmoz.org. DMOZ is a volunteer-compiled directory of the highest quality informational websites, organized by subject matter. DMOZ is not designed for the purpose of blacklisting websites. DMOZ contains a “society” category of websites that contains a subcategory labeled “sexuality” and a separate subcategory labeled “gay, lesbian, and bisexual.” The “gay, lesbian, and bisexual” subcategory has sub-subcategories such as “history,” “law,” “media,” “politics,” and “religion and spirituality.” The Court finds that URL Blacklist drew its list of blocked websites for its “sexuality” filter from both the websites in DMOZ's “sexuality” subcategory and the websites in DMOZ's “gay, lesbian, and bisexual” subcategory. Over 99% of the websites included in DMOZ's “sexuality” subcategory appear in URL Blacklist's “sexuality” filter. (Tr. 43). Over 99% of the websites included in DMOZ's “gay, lesbian, and bisexual” subcategory appear in URL Blacklists's “sexuality” filter. (Tr. 43).

Sexuality filters are normally used to filter out pornographic material, but the URL Blacklist filter has the affect of filtering out positive material about LGBT issues as well as pornographic material. PFLAG has identified forty-one websites blocked by URL Blacklist's “sexuality” filter that express a positive viewpoint toward LGBT individuals. (Tr. 33). PFLAG tested these forty-one websites on five different internet filter systems designed to help schools comply with CIPA. None of these five filter systems blocked any of these forty-one websites as prohibited by CIPA. (Tr. 34–35). On the other hand, URL Blacklist generally categorizes websites expressing a negative view toward LGBT individuals in its “religion” category, and does not block them with its “sexuality” filter. (Tr. 37). Thus, URL Blacklist systematically allows access to websites expressing a negative viewpoint toward LGBT individuals by categorizing them as “religion”, but filters out positive viewpoints toward LGBT issues by categorizing them as “sexuality”.

The Court's finding of viewpoint discrimination is not undermined by Camdenton's small list of websites expressing a positive view toward LGBT individuals that are currently “open,” or not blocked by any of URL Blacklist's filters. (Tr. 99). First, Camdenton has not presented any evidence of the informational quality of the sites left open by URL Blacklist. In contrast, PFLAG has demonstrated that URL Blacklist, through its manipulation of DMOZ categories, systematically targets the highest-quality informational sites that express a positive viewpoint toward LGBT individuals. Second, Camdenton's list of open websites does not refute PFLAG's evidence that when URL Blacklist assigns a category to websites, it assigns websites expressing a positive view toward LGBT individuals to its “sexuality” category, which Camdenton blocks, while assigning websites expressing a negative view toward LGBT individuals to its “religion” category, which Camdenton does not block. In fact, the record reflects that when a website identified as religious—such as Evangelicals Concerned—expresses a positive viewpoint toward LGBT individuals, URL Blacklist categorizes that website in its “sexuality” filter, rather than its “religion” filter. (Tr. 136); [Doc. # 1 at 15]. Third, Camdenton's list of “open” websites could just as easily be explained by URL Blacklist's general ineffectiveness at identifying and categorizing some websites. The record supports this interpretation because when tested on a random sample of 500 sexually explicit websites, URL Blacklist's sexuality filter categorized thirty percent of them as “open,” even though they were sexually explicit. (Tr. 52). In contrast, CIPAFilter, an internet filter designed to help schools comply with CIPA, only failed to block 3.2% of these sites. (Tr. 52). Thus, although URL Blacklist allows access to some websites expressing a positive view toward LGBT individuals, whether by design or by error, it is clear that URL Blacklist systematically burdens access to this viewpoint, especially with regard to the highest quality information on the internet as defined by the industry standard DMOZ.

B. The Court Finds That by Continuing to use URL Blacklist, Despite Notice that URL Blacklist Discriminates Based on Viewpoint, Camdenton has Itself Intentionally Discriminated Based on Viewpoint

The Court finds Camdenton intended to discriminate based on viewpoint because Camdenton continues to use URL Blacklist despite being given notice by the ACLU of URL Blacklist's viewpoint-discriminatory effects. The ACLU sent two letters to Camdenton officials...