Parents, Families, & Friends of Lesbians & Gays, Inc. v. Camdenton R-III School DistrictParents, Families, & Friends of Lesbians & Gays, Inc. v. Camdenton R-III School District
ORDER
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
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,
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
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 Camden-ton’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 BlacMist 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.
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 explaining that URL Blacklist’s “sexuality” filter systematically blocks websites that express a positive view toward LGBT individuals and that are not prohibited by CIPA. (Tr. 122-24). Although Camdenton agreed after the second letter to unblock four such websites that were specifically identified by the ACLU in those letters, Superintended Hadfield testified at the hearing that he “didn’t take any other steps to make sure that other LGBT-supportive information would be unblocked ...” (Tr. 124).
The Court’s conclusion is based in part on the demonstrated inability of URL Blacklist’s “sexuality” filter to effectively filter out content prohibited by CIPA, that is, visual depictions that are obscene, child pornography, or harmful to minors. This is important because Camdenton does not assert an interest in protecting its students from websites expressing a positive view toward LGBT individuals. Rather, Camdenton only asserts an interest in protecting its students from content prohibited by CIPA. Thus, Camdenton’s continued use of URL Blacklist, which does not effectively block content prohibited by CIPA, suggests an ulterior motive. David Hinkle, the developer of CIPAFilter — an internet filter system designed to assist school districts in complying with CIPA while maximizing student access to otherwise-appropriate websites — found that CIPAFilter only deemed 2.4% of the websites in URL Blacklist’s “sexuality” filter to be prohibited by CIPA. (Tr. 47). Further, when Mr. Hinkle tested 500 CIPA-prohibited websites on both internet filter systems, he found that URL Blacklist’s “sexuality” filter failed to block over 30% of CIPA prohibited sites, whereas CIPAFilter failed to block only 3.2% of the CIPA prohibited sites. (Tr. 52). Thus, CIPAFilter and its competitors are much more effective than URL Blacklist at achieving Camdenton’s stated goal of complying with CIPA, and do so without burdening websites that express a positive viewpoint toward LGBT individuals. Camdenton’s continued use of URL Blacklist in light of this demonstrated information shows an intent to discriminate based on viewpoint.
Camdenton’s continued use of URL Blacklist likewise suggests an intent to discriminate based on viewpoint because URL Blacklist does not comply with professional standards of librarianship. Dr. Stripling, the Director of School Library Services in New York City, testified at the hearing that URL Blacklist failed to meet professional standards for several reasons. First, URL Blacklist lacks clear criteria for categorizing websites. (Tr. 10). Second, URL Blacklist lacks credibility because it does not disclose the names or qualifications of the people making its categorization judgments. (Tr. 10). In fact, the creator of URL Blacklist operates under the pseudonym “Dr. Guardian” out of a small residence in the United Kingdom countryside. (Tr. 26-27). Third, Dr. Stripling did not find URL Blacklist to be viewpoint-neutral. (Tr. 11). Dr. Stripling also testified that Camdenton’s system of unblocking sites on an individual basis does not bring its system into compliance with professional standards. This, because students “can’t know what sites are unavailable if they’re blocked,” because of
Finally, the record contains direct evidence that Camdenton intended to discriminate based on viewpoint. Superintended Hadfield agreed at the hearing that school board member John Beckett has expressed “concern with students accessing websites saying it’s okay to be gay.” (Tr. 76). At a public school board meeting, Mr. Beckett stated that “the amended policy may not have gone far enough,” and that he would like to require parental consent before allowing students to access these sites. (Tr. 67). Superintendent Hadfield also testified that thirteen individuals from the community spoke at a public meeting and that all thirteen “were supportive of the school district’s stance” on keeping the current filter in place. (Tr. 64). This, despite the ACLU’s warnings that the current system discriminated based on viewpoint. One such parent remarked: “If the parent allows this in the house, that’s one thing, but to do it outside the family circle, you usurp the authority of the parents.” (Tr. 66). These statements are direct evidence that Camdenton continued to use URL Blacklist, despite it being ineffective and falling below professional standards, out of an intent to continue to burden websites expressing a positive viewpoint toward LGBT individuals.
C. The Court Finds That Camdenton’s Internet-Filter System Stigmatizes, or at Least Burdens, Websites Expressing a Positive View Toward LGBT Individuals, Despite Its Procedure for Requesting That Individual Websites be Unblocked
First, it is not clear that Camdenton’s process for requesting that a website be opened is truly anonymous. In order to submit a request, students must fill out a form that pops up whenever they attempt to access a blocked site. There is a space on the request form for students to include their “Username.” Camdenton’s Network Administrator, Randal Cowen, testified at the hearing that students could enter any information they want in this space, such as their dog’s name or a number, and their request would be processed. (Tr. 101). But the form itself appears to require, or at least encourage, students to enter a username that is a derivation of their real name:
Please use your Novell Username Below. (Example: jdoe for John Doe, otherwise you will not receive email responses!)
Exh. D1 at 2.
Further, Mr. Cowan testified that students could visit a website where they could enter the “username” they had entered on the request form and see the status of all requests made under that username. (Tr. 101). But a student would have to enter the same username every time they made a request to take advantage of this system. Thus, if Camdenton became aware of the identity of a student using a computer when any single request was made, Camdenton would be aware of all the requests ever made by that student. Camdenton could become aware of which student made a particular request either through faculty monitoring of which student was present at a computer at a given time, or by encouraging students to sign on to computers using a user ID. In fact, Mr. Cowan testified that unless students sign on using a user ID assigned to them by the school, they will be limited to the strictest set of internet filters, designed for kindergartners. (Tr. at 108). There is little doubt that Camdenton can trace any student with a user ID to every request made by that student if it elects to do so. Finally, Camdenton’s
Second, for the reasons discussed immediately above, some students will likely perceive Camdenton’s unblocking process as not anonymous and be deterred from using it for that reason. Thus, even if Camdenton’s process for requesting that a website be opened is, in fact, anonymous, it still stigmatizes websites' expressing a positive viewpoint toward LGBT individuals. This finding is supported by Plaintiff Jane Doe’s testimony in her affidavit that she is “afraid” that requesting to have a site unblocked “will draw attention to [her] and make [her] the subject of further taunting.” [Doc. # 28-2 at 2].
Third, even if Camdenton’s unblocking process is, in fact, anonymous and is perceived by students as such, it still unnecessarily stigmatizes and burdens a single viewpoint on LGBT issues. Dr. Stripling testified that when a student is required to ask permission to access information, “even if it’s anonymous that still the stu-. dent feels stigmatized, that he’s less than worthy, and the information that he’s seeking is less than worthy.” (Tr. 11). Further, Camdenton’s internet-filter system is viewpoint discriminatory by design, so the unblocking process burdens only one viewpoint on LGBT issues by imposing a twenty-four hour wait and the risk of exposing one’s identity only on access to information expressing the discriminated-against viewpoint. Thus, students may be deterred from accessing websites expressing a positive view toward LGBT individuals either by the inconvenience of having to wait twenty-four hours for access or by the stigma of knowing that viewpoint has been singled out as less worthy by the school district and the community.
III. Discussion
Courts weigh the following factors when considering a plaintiffs motion for preliminary injunction: (1) whether the plaintiff is likely to succeed on the merits, (2) whether the plaintiff is likely to suffer irreparable harm in the absence of preliminary relief, (3) whether the balance of equities tips in the plaintiffs favor, and (4) whether an injunction is in the public interest. Dataphase Sys., Inc. v. C L Sys., Inc.,
A. Whether Plaintiffs Are Likely to Succeed on the Merits 1. Likelihood of Success Needed
A party seeldng a preliminary injunction regarding the implementation of anything but a “duly enacted state statute” must demonstrate a “fair chance” that it will succeed on the merits, “meaning something less than fifty percent.” Planned Parenthood v. Rounds,
Camdenton argues its case under the assumption that the “likely to prevail” standard applies, but does not address PFLAG’s argument that the “fair chance” standard applies. The Court concludes that PFLAG must only show a fair chance of success on the merits because a school board’s selection of an internet filter does not appear to “represent ] the full play of
2. Standing-
In order to meet Article III standing requirements, a plaintiff must show that she suffered “injury-in-fact,” that is, injury that is concrete and particularized, as well as actual or imminent. See Lujan v. Defenders of Wildlife,
a. Standing of Organizational Plaintiffs
Camdenton argues that the organizational Plaintiffs have no standing because they do not have a constitutional right ensuring that their websites reach students in a school library. Camdenton, in making this argument, relies heavily on the Supreme Court’s holding in ALA that public libraries are not public forums. United States v. Am. Library Ass’n (“ALA”),
Camdenton also appears to argue that the right to challenge decisions regarding school-library materials is a right that belongs exclusively to the students. This argument is unpersuasive. Camdenton has not pointed to an analogous case that excludes webpublisher plaintiffs on standing grounds. In ALA, the plurality reached the merits of a claim by plaintiffs, some of whom were website publishers who challenged the filtering out of their websites from the non-public forum of library internet “collections.” ALA
Camdenton also argues that the organizational Plaintiffs lack standing because they cannot show injury in fact. Specifically, Camdenton argues that PFLAG has not alleged that any student has attempted to access the organizational Plaintiffs’ websites, as would be required to confer standing. Camdenton also argues that “there is not even a minimal guarantee that any student will ever seek access” to the organizational Plaintiffs’ websites. [Doc. # 34 at 10-11]. Camdenton’s argument is not persuasive. First, the injury claimed by organizational Plaintiffs is their exclusion on the basis of viewpoint, which logically exists independent of students’ desire to access the excluded resource. Regardless, Plaintiff Jane Doe, a student at Camdenton, has testified: “I want to be able to access information ... but I am prevented from doing so by the software blocking sites on the Internet.” [Doc. # 28-2], The most natural conclusion to draw from this statement is that Jane Doe would have accessed the organizational Plaintiffs’ websites but for her knowledge that such websites were blocked. It is not reasonable to require that a student actually try to access a website that they know to be blocked in order for the website’s publisher to be able to bring suit. This conclusion draws support from Camdenton’s inability to identify precedent that would support
b. Standing of Jane Doe
Even if the organizational Plaintiffs did not have standing to sue, the lawsuit would still proceed because Jane Doe, a Camdenton student, also has standing to sue. Camdenton argues that Jane Doe lacks standing because she has not alleged any particular website that she wished to access, has attempted to access, or for which she has petitioned to gain access. But this argument only demonstrates the breadth of Jane Doe’s injury. Camden-ton’s filter system deterred Jane Doe from even trying to access in her school library, websites expressing a positive viewpoint toward LGBT individuals, because she knew they were blocked. Camdenton’s system thus chilled Jane Doe’s search for information on that viewpoint. The Eighth Circuit has recognized this type of broader, stigmatie injury:
The symbolic effect of removing the films from the curriculum is more significant than the resulting limitation of access to the story. The board has 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. This message is not lost on students and teachers, and its chilling effect is obvious.
Pratt v. Indep. Sch. Dist. No. 831,
Camdenton argues that Jane Doe does not have standing to sue because Camden-ton’s filter system allows access to some websites expressing a positive viewpoint toward LGBT individuals. Camdenton appears to argue that because an attempt by Jane Doe to access any particular website expressing a positive viewpoint toward LGBT individuals might be successful, her injury is too speculative to satisfy Article III requirements. This argument also fails in light of the Eighth Circuit’s statement in Pratt that the stigmatizing effect of condemning an idea by limiting access to it is more significant than the actual limitation of access. See Pratt,
c. Effect of Camdenton’s Unblocking Procedure on Standing
Finally, Camdenton argues that its system allowing students to request that sites be unblocked renders PFLAG’s injuries too hypothetical to satisfy standing requirements and also moots the lawsuit. Camdenton argues that in order to have standing, Jane Doe would have had to exhaust her remedies by requesting access to a site and being denied under that system. This argument does not defeat standing for the organizational Plaintiffs because Camdenton’s act of filtering the organizational Plaintiffs’ websites based on viewpoint stigmatized a particular viewpoint. This is an injury by itself, regardless of whether students are eventually able to access any particular website ex
As for the effect of Camdenton’s procedure for unblocking a website on Jane Doe’s standing, the Court is aware of two cases dealing with such a procedure — neither of which supports Camdenton’s argument. In the first such ease, ALA, the plurality considered the effects of an unblocking procedure in its discussion on the merits, but never indicated that the procedure was an obstacle to standing.
The Court finds the reasoning in Counts both persuasive and consistent with the plurality decision in ALA. It would strain common sense for the Court to allow Camdenton to create a procedure, burdening only one viewpoint in a debate, and then require administrative exhaustion before a federal Court could consider the merits of the challenge. Such an approach would chill speech in a viewpoint-discriminatory fashion, which is the antithesis of the First Amendment.
This is especially true where the record supports a finding that the procedure to be exhausted stigmatizes protected speech. Although Camdenton argues that its procedure cannot stigmatize speech because it is anonymous, the Court has found that students will likely fear that Camdenton’s unblocking procedure will not protect their anonymity. Thus, Jane Doe’s testimony that she is “afraid” that requesting to have a site unblocked “will draw attention to [her] and make [her] the subject of further taunting” is justified. [Doc. # 28-2 at 2], This fear is similar to that in Roe v. City of New York, where the court found a plaintiffs fear of arrest for attending a needle exchange reasonable, and also considered, for standing purposes, “that the fear itself cause[d] a distinct and palpable injury” by decreasing the use of needle exchanges and increasing the transmission of diseases.
d. Applicability of Censorship Cases
Camdenton also claimed at oral argument that the censorship cases cited by the ACLU in support of standing are inapplicable to this case because they all involved the removal of a book previously included in a library collection. Camden-ton apparently argues that the Court should extend ALA’s holding — that libraries do not violate the First Amendment by
Regardless, the injury alleged in this case is more analogous to the injury in book-removal censorship cases than to the injury in ALA. The Supreme Court in ALA did not deal with viewpoint discrimination, but rather considered a librarian’s decision to “exclude certain categories of content.” ALA,
3. The Merits of PFLAG’s Claim
Camdenton’s internet access system in its library is neither a traditional nor a designated public forum. United States v. Am. Library Ass’n (“ALA”),
Alternatively, Camdenton’s decision to deny its students access to websites expressing a positive viewpoint toward LGBT individuals could be analyzed under the “right to receive information and ideas.” Bd. of Ed., Island Trees Un. Free Sch. Dist. No. 26 v. Pico,
PFLAG is likely to succeed in challenging Camdenton’s internet-filter policy under either form of exacting scrutiny. First, Camdenton has repeatedly said that its goal is not to protect its students from websites expressing a positive view toward LGBT individuals, or that such websites interfere with the requirements of appropriate discipline. Rather, Camdenton has argued that its internet-filter system does not discriminate based on viewpoint. The Court has found otherwise. Thus, Camdenton’s only possible governmental objective is compliance with CIPA; i.e, protecting its students from viewing, on school computers, images that are obscene, child pornography, or harmful to minors. The Court assumes that this interest is a compelling one, but Camden-ton’s internet-filter system is not narrowly tailored to achieve that interest. Rather, the record clearly demonstrates that Camdenton could either use a product like CIPAFilter or reconfigure its own system to achieve viewpoint neutrality, and that doing so would maintain, if not increase, its effectiveness at blocking CIPA-regulated content. As shown by the evidence, URL Blacklist failed to block out 30 per cent of material forbidden by CIPA. Indeed, this evidence supports the Court’s conclusion that Camdenton has continued to use the URL Blacklist as its primary filter because it discriminates against websites that discuss LGBT from a positive viewpoint.
Camdenton appears to argue that because it has in place a system for requesting that websites be unblocked, its internet-filter system is narrowly tailored to its interest in complying with CIPA. But the Court has explained elsewhere that Camdenton’s unblocking procedure, as currently configured, burdens a particular viewpoint and thus has a stigmatizing effect. It is thus distinguishable from the unblocking system that the plurality in ALA found to be effective at curing the overbreadth of an internet filter in public libraries.
Camdenton argues that because this case involves the filtering out of websites, rather than the removal of books, that the Court should apply the “reasonableness” standard of ALA rather than the more exacting scrutiny applied in Pico and Pratt.
Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries’ judgments to block online pornography any differently, when these judgments are made for just the same reason.
Id. at 208,
This conclusion is consistent with the plurality decision in Pico. There, having earlier noted that “the action before us does not involve the acquisition of books,”
nothing in our decision today affects in any way the discretion of a local school board to add to the libraries of their schools. Because we are concerned in this case with the suppression of ideas, our holding today affects only the discretion to remove books. In brief, we hold that the local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion. Such purposes stand inescapably condemned by our precedents.
Id. at 871-72,
Thus, if the Court were examining a decision by Camdenton to exclude all resources on the subject of LGBT issues, whether by employing an internet filter or by book selection or removal, the Court would examine that decision under the standard articulated in ALA. But because here, the Court is examining Camdenton’s decision to exclude websites expressing a viewpoint that is positive toward LGBT individuals, the Court must examine the decision under the exacting scrutiny of Pico and Pratt.
Finally, even if the Court were to examine Camdenton’s decision under the standard of ALA, PFLAG would likely prevail on the merits. Camdenton has not argued that its decision to systematically block access to websites expressing a positive viewpoint toward LGBT individuals is reasonable in light of a librarian’s “traditional role in identifying suitable and worthwhile material.” Rather, Camdenton has consistently denied that it discriminates on the basis of viewpoint. Because the Court has found otherwise, PFLAG is likely to succeed on the merits of its claim.
B. Whether PFLAG Will Suffer Irreparable Harm if Camdenton is not Enjoined
Injunctive relief in the federal courts is based on the threat of irreparable
C. Whether the Balance of Hardships Tips in PFLAG’s Favor
The balance of hardships tips in PFLAG’s favor. The Court’s failure to enjoin Camdenton’s internet-filter system, as currently configured, will lead to an ongoing violation of the First Amendment rights of website publishers and students. Camdenton argues that requiring it to disable its “sexuality” filter will expose children to pornography and bring Camdenton into noncompliance with CIPA. But PFLAG does not ask that Camdenton merely disable its “sexuality” filter. Rather, 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].
The record reflects several viewpoint-neutral options that would allow Camden-ton to continue its compliance with CIPA. For example, Camdenton could reconfigure its system, such as by adding to its white list all websites in DMOZ’s “gay, lesbian, and bisexual” subcategory that would not be regulated by CIPA. Camden-ton has presented no evidence that this would be a hardship. Or Camdenton could employ one of the many filter services suggested by PFLAG that effectively filter pornography without discriminating based on viewpoint. Although such a service would presumably cost more than Camdenton’s URL Blacklist implementation, Camdenton has not presented evidence that this cost would be overly burdensome on Camdenton’s financial resources. In fact, the record reflects that a thousand school districts currently employ CIPAFilter alone, which suggests that the cost of these products would not be overly burdensome on Camdenton. (Tr. 60). Further, the record indicates that Camden-ton’s adoption of one of these services would substantially improve its ability to shield children materials prohibited by CIPA. Any small increase in price should be justified if Camdenton is concerned about filtering out pornographic material. The balance of hardships thus weighs in favor of PFLAG.
D. Whether an Injunction is in the Public Interest
“[I]t is always in the public interest to protect constitutional rights.” Phelps-Roper v. Nixon,
IV. Conclusion
For the foregoing reasons, the Court finds that PFLAG has established the requirements necessary for a preliminary injunction on its claim under the First Amendment of the U.S. Constitution. Accordingly, it is hereby ORDERED that Plaintiffs’ Motion for Preliminary Injunction [Doc. # 6] is GRANTED. The Court orders Camdenton to discontinue, within 30 days, its internet-filter system as currently configured, and any new system selected must not discriminate against
Notes
. Because Camdenton consistently asserts that it does not discriminate based on viewpoint, it is unclear whether Camdenton would argue that ALA should provide the standard for this case despite the Court having found viewpoint discrimination. Because Camden-ton's counsel at oral argument insisted that this is not a book "taking” or classic censorship case and that ALA controls, the Court addresses the following argument. (Tr. 145).