Bradburn et al v. North Central Regional Library District, No. 2:2006cv00327 - Document 96 (E.D. Wash. 2008)

Court Description: ORDER GRANTING AND DENYING IN PART DEFENDANT'S MOTION FOR CERTIFICATION AND HOLDING IN ABEYANCE THE MOTIONS FOR SUMMARY JUDGMENT; granting in part and denying in part 37 Motion for Certification of Questions of State Constitutional Law; granting in part, denying in part and holding in abeyance in part 28 Defendant NCRL's Motion for Summary Judgment; holding in abeyance 28 Plaintiffs' Motion for Summary Judgment. The remaining pretrial deadlines, pretrial conference and trial are STRICKEN. Signed by Judge Edward F. Shea. (CV, Case Administrator)

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Bradburn et al v. North Central Regional Library District Doc. 96 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 8 SARAH BRADBURN, PEARL CHERRINGTON, CHARLES HEINLEN, SECOND AMENDMENT FOUNDATION, 9 Plaintiffs, 10 v. 11 NORTH CENTRAL REGIONAL LIBRARY DISTRICT, 12 NO. CV-06-0327-EFS ORDER GRANTING AND DENYING IN PART DEFENDANT'S MOTION FOR CERTIFICATION AND HOLDING IN ABEYANCE THE MOTIONS FOR SUMMARY JUDGMENT Defendant. 13 14 15 A hearing was held in the above-captioned matter on April 23, 2008. 16 Catherine Crump and Duncan Manville appeared on behalf of Plaintiffs 17 Sarah Bradburn, Pearl Cherrington, Charles Heinlen, and the Second 18 Amendment Foundation (collectively referred to as "Plaintiffs"). 19 Adams appeared on behalf of Defendant North Central Regional Library 20 District (NCRL). 21 of Questions of State Constitutional Law (Ct. Rec. 37), NCRL's Motion for 22 Summary Judgment (Ct. Rec. 28), and Plaintiffs’ Motion for Summary 23 Judgment (Ct. Rec. 39). 24 relevant 25 informed. 26 ruling granting and denying in part NCRL's certification motion and Thomas Before the Court were NCRL's Motion for Certification authority and After reviewing the submitted material and hearing from counsel, the Court was fully This Order supplements and memorializes the Court's oral ORDER ~ 1 Dockets.Justia.com 1 holding in abeyance the motions for summary judgment, absent the standing 2 issues, until the the to-be-certified state constitution Article I, § 5 3 issue(s) are resolved. 5 6 Facts1 I. 4 A. Plaintiffs Sarah Bradburn, Pearl Cherrington, and Charles Heinlen are patrons 7 of NCRL. 8 available to the public by NCRL to access the Internet. 9 (Ct. Rec. 41 at 1-2.) Each uses, or has used, computers made Id. at 2. Ms. Bradburn is a resident of Republic, Washington, and primarily 10 uses NCRL’s Republic branch for Internet access and other purposes. 11 In October or November 2003, Ms. Bradburn attempted to conduct Internet 12 research regarding alcohol and drug-addiction topics in connection with 13 academic assignments. 14 certain Web sites relating to youth tobacco usage; she believes her 15 access was blocked by NCRL's Internet filter, but she cannot recall the 16 sites specifically. 17 completed her research in Spokane where she was attending school, and 18 she did not tell NCRL staff of her access difficulties before filing 19 suit. 20 opportunity to confirm that access was in fact blocked and, if so, 21 whether access was blocked by the Internet filter, a transient network 22 problem, or some other cause. Id. at 2. Id. Ms. Bradburn was unable to access Id. at 2-3; Ct. Rec. 57 at 21. (Ct. Rec. 41 at 3; Ct. Rec. 49 at 32.) Id. Ms. Bradburn NCRL has had no Ms. Bradburn seeks to have, on 23 24 25 26 1 This factual statement is based on the parties’ Joint Statement of Uncontroverted Facts. ORDER ~ 2 (Ct. Rec. 71.) 1 request, unfiltered Internet access for lawful purposes at her local NCRL 2 branch. 3 Ms. (Ct. Rec. 57 at 21.) Cherrington uses is NCRL’s a resident Twisp branch. of Twisp, (Ct. Washington, Rec. 41 at and 3.) she 4 primarily 5 Cherrington attempted to conduct Internet research on art and health- 6 related topics in the summer of 2005 through NCRL’s network using a 7 computer in the Twisp branch. 8 Internet filter denied Ms. Cherrington access to the Idaho art gallery 9 Web site and a site containing health information, but she cannot recall Id.; Ct. Rec. 57 at 21-22. Ms. NCRL’s 10 the specific Web sites. 11 Plaintiffs filed their Complaint, Ms. Cherrington attempted to access the 12 YouTube Web site. 13 current filter denied Ms. Cherrington access to YouTube. 14 at 3; Ct. Rec. 57 at 21-22.) NCRL no longer blocks access to YouTube. 15 (Ct. Rec. 29 at. 33.) 16 unfiltered Internet access for lawful purposes at her local NCRL branch. 17 (Ct. Rec. 57 at. 22.) 18 “Material Selection Review Form” – a form that NCRL made, and still 19 makes, available to patrons requesting to unblock specific Web sites. 20 Id. at 20. 21 (Ct. Rec. 41 at 3; Ct. Rec. 57 at 21-22.) After (Ct. Rec. 41 at 3; Ct. Rec. 57 at 21-22.) NCRL’s (Ct. Rec. 41 Ms. Cherrington seeks to have, on request, Ms. Cherrington denies ever having seen a Mr. Heinlen, a resident of Okanogan County, Washington, primarily 22 uses NCRL’s Omak and Okanogan branches. 23 attempted to use NCRL computers to conduct Internet research, communicate 24 with others via email, maintain a MySpace.com blog, obtain information 25 on firearms, and access various dating sites and other Web sites. 26 at 3-4; Ct. Rec. 57 at 6. ORDER ~ 3 (Ct. Rec. 41 at 3.) Mr. Heinlen Id. NCRL’s Internet filter prevented him from 1 accessing images or photographs embedded in commercial emails sent to his 2 Hotmail and Yahoo! Accounts, and to the Web sites listed in his answer 3 to NCRL’s Interrogatory No. 5 and his Declaration in Opposition to 4 Defendant’s Motion for Summary Judgment. 5 at 6.) 6 branch, Mr. Heinlen found that NCRL’s Internet filter blocked access to 7 the following Web sites under the category Nudity and Risque (except 8 www.courting-disaster.com, which was blocked under the category "Adult 9 Materials"): (Ct. Rec. 41 at 4; Ct. Rec. 57 On February 23, 2008, while using an NCRL computer at the Omak 10 www.netnude.com 11 aanr.com 12 www.artenuda.com/paintings2.asp 13 gregfriedler.com 14 billbrandt.com 15 www.ryoung-art.com 16 www.courting-disaster.com 17 www.mapplethorpe.org/index.html 18 fineartnude.com/webring 19 (Ct. Rec. 57 at 6.) Mr. Heinlen also attempted to access the “personals” 20 section of craigslist.org on February 23, 2008, through an NCRL computer. 21 Id. 22 Heinlen wishes to access the Craigslist personals section. 23 Heinlen is the only person to have requested that NCRL's Internet filter 24 be disabled during his computer sessions prior to this lawsuit. 25 Rec. 29 at 10; Ct. Rec. 62 at 20.) 26 request to unblock a specific “personal Web site” in 2004 was denied. NCRL’s Internet filter prevented him from doing so. ORDER ~ 4 Id. Mr. Id. Mr. (Ct. Mr. Heinlen maintains that his 1 (Ct. Rec. 57 at 20.) Mr. Heinlen denies having seen a “Material 2 Selection Review Form.” Id. 3 unfiltered Internet access for lawful purposes at his local NCRL branch. 4 Id. at 23. 5 Second Amendment Mr. Heinlen seeks to have, on request, Foundation (“SAF”), a Washington non-profit 6 corporation headquartered in Bellevue, Washington, is dedicated to issues 7 associated with the constitutional right to keep and bear firearms. (Ct. 8 Rec. 29 at 30-31; Ct. Rec. 41 at 4.) 9 contributing members and supporters throughout the United States – 10 including about 1,000 in Chelan, Douglas, Ferry, Grant, and Okanogan 11 Counties. 12 and sponsors online publications, including Women & Guns (“The World’s 13 First Firearms Publication for Women”) at www.womenandguns.com. 14 4-5. 15 publications to Internet users in North Central Washington. 16 SAF 17 www.womenandguns.com was blocked on NCRL’s computers. 18 31; Ct. Rec. 41 at 5; Ct. Rec. 49 at 2.) 19 or 20 blocked. 21 Plaintifff Heinlen attempted to access www.womenandguns.com in November 22 2006, but was prevented from doing so by NCRL’s Internet filter. 23 Rec. 57 at 20.) 24 that access to www.womenandguns.com was blocked. 25 Access to www.womenandguns.com is not presently blocked, and NCRL does 26 not contend that it should be blocked. (Ct. Rec. 41 at 4.) SAF has approximately 650,000 SAF maintains the www.saf.org Web site Id. at SAF wishes to communicate the Web site's content and sponsored was advised experience ORDER ~ 5 by one confirming or that more of access its members that Id. at 5. access to (Ct. Rec. 29 at SAF has no personal knowledge to its sites were, in fact, (Ct. Rec. 29 at 31; Ct. Rec. 41 at 5; Ct. Rec. 49 at 2.) (Ct. Before this lawsuit, NCRL had not received any report Id. (Ct. Rec. 29 at 31.) SAF, however, is concerned 1 that NCRL will block that Web site (or another site sponsored by SAF) in 2 the future. 3 B. (Ct. Rec. 57 at 20.) NCRL 4 NCRL is an inter-county rural library district established in 1960 5 by the citizens of Chelan, Douglas, Ferry, Grant, and Okanogan Counties. 6 (Ct. Rec. 29 at 2; Ct. Rec. 41 at 5.) 7 RCW 27.12 et seq. and other statutes applicable to inter-county rural 8 library districts. 9 lifelong learning. 10 Id. NCRL was formed and operates under NCRL’s mission is to promote reading and (Ct. Rec. 29 at 6; Ct. Rec. 41 at 7.) NCRL also is committed to supporting public education. (Ct. Rec. 11 29 at 4.) Twenty-six (26) school districts operate within NCRL’s 12 territorial reach. Id. In fourteen (14) of those districts, NCRL branch 13 libraries serve as the de facto school library for children. Id. 14 NCRL, which maintains twenty-eight (28) branches and serves over 15 220,000 people, is funded by local property taxes, federal subsidies, 16 private grants, and endowments. (Ct. Rec. 29 at 2-3.) NCRL receives 17 federal E-Rate provides 18 discounted Internet access and other telecommunications services, and the 19 Library Services and Technology Act, which provides for grants to public 20 libraries. 21 assistance through the program, which for (Ct. Rec. 41 at 6.) NCRL is managed and controlled by a Board of Trustees (“the Board”), 22 which is responsible for issuing NCRL's policies. 23 The Board is comprised of two trustees from each of Chelan and Grant 24 Counties, and one trustee from each of Douglas, Ferry, and Okanogan 25 Counties. 26 appointed director. ORDER ~ 6 Id. (Ct. Rec. 29 at 2.) NCRL’s operations are overseen and managed by a BoardId. The director serves as liaison between the 1 Board and library employees. Id. Dean Marney, a NCRL employee since 2 1977, has served as NCRL’s Director since being appointed in 1990. Id. 3 NCRL maintains a collection exceeding 675,000 books and other 4 materials, all of which are available to patrons at any of NCRL’s twenty- 5 eight 6 www.ncrl.org. 7 mail order. Id. 8 mail services in the United States. 9 (28) branches or by order placed through NCRL’s Web site, Id. NCRL also offers its patrons access to materials by NCRL’s mail order service is one of the few remaining Id. NCRL’s branches vary in physical size, with the average size being 10 approximately 2,865 square feet. 11 branch, which is about 12,000 square feet of public area; the smallest 12 is the Twisp branch, which is approximately 701 square feet of public 13 space. 14 branch, 15 separating the children’s section from the rest of the library. 16 Twenty (20) NCRL branches are staffed by one librarian. Id. Sixteen NCRL 17 branches offer only one or two computers for public use in accessing the 18 Internet. Id. Id. The largest is the Wenatchee While there is a designated children’s area in every NCRL only one branch has a wall or other partition physically Id. Id. 19 In furtherance of its mission, and to meet the diverse needs and 20 interests of its patrons, NCRL provides public Internet access at all of 21 its branches. 22 network is subject to two policies: 23 the Collection Development Policy (hereinafter, collectively referred to 24 as "the Policy"). 25 and Dan Howard, NCRL’s Director of Public Services, interpret and apply 26 the Policy. ORDER ~ 7 (Ct. Rec. 41 at 7.) Internet access through the NCRL the Internet Public Use Policy and (Ct. Rec. 29 at 6-9.) Dean Marney, NCRL’s Director, (Ct. Rec. 29 at 2-3, 17; Ct. Rec. 41 at 9, 15; Ct. Rec. 49 1 at 12-13; Ct. Rec. 57 at 1; Ct. Rec. 59 at 5-6; Ct. Rec. 62 at 2.) 2 NCRL’s Collection Development Policy states: 3 4 5 6 The North Central Regional Library District's Board of Trustees recognizes that the library was created to serve all of the people within the District's service area, regardless of race, age, creed, or political persuasions. The Board of Trustees further recognizes that within the District’s service area there are individuals and groups with widely disparate and diverse interests, cultural backgrounds, and needs. The Board of Trustees, therefore, declares as a matter of policy that: 7 1. The Collection Development Policy is based on and reflects the District's mission, goals, and values as stated in the current Strategic Plan 2. Library materials shall be selected and retained in the library on the basis of their value for the interest, information, and enlightenment of all the people of the community in conformance with the District's mission. Some of the factors which will be considered in adding to or removing materials from the library collection shall include: present collection composition, collection development objectives, interest, demand, timeliness, audience, significance of subject, diversity of viewpoint, effective expression, and limitation of budget and facilities. 8 9 10 11 12 13 14 15 No library materials shall be excluded because of the race, nationality, political, religious, or social views of the author. Not all materials will be suitable for all members of the community. 16 17 18 The District shall be responsive to public suggestion of titles and subjects to be included in the library collection. Gifts of materials may be accepted with the understanding that the same standards of selection are applied to gifts as to materials acquired by purchase, and that any gifts may be discarded at the District's discretion. 19 20 21 22 To ensure a vital collection of continuing value to the community, materials that are not well used may be withdrawn. 23 24 The Director is responsible to the Board of Trustees for collection development. 25 26 ORDER ~ 8 1 The Director may delegate collection development activities to members of the staff who are qualified by reason of education and training. 2 3 3. 4 5 6 The Board of Trustees believes that reading, listening to, and viewing library materials are individual, private matters. While individuals are free to select or to reject materials for themselves, they cannot restrict the freedom of others to read, view, or inquire. The Board of Trustees recognizes that parents have the primary responsibility to guide and direct the reading and viewing of their own minor children. 7 The Board of Trustees recognizes the right of individuals to question materials in the District collection. A library customer questioning material in the collection is encouraged to talk with designated members of the staff concerning such material. To formally state his or her opinion and receive a written response, a customer may submit the form provided for that purpose. 8 9 10 11 (Ct. Rec. 29 at 6-8.) NCRL’s Internet Public Use Policy states: 12 13 The mission of the North Central Regional Library is to promote reading and lifelong learning. Internet access is offered as one of many information resources supporting that mission. 14 15 16 17 18 19 The Internet is currently an unregulated medium. While the Internet offers access to materials that are enriching to users of all ages, the Internet also enables access to some materials that may be offensive, disturbing, or illegal. There is no guarantee that information obtained through the Internet is accurate or that individuals are who they represent themselves to be. The library district recognizes that it cannot fully control the amount of material accessible through the Internet but will take reasonable steps to apply to the Internet the selection criteria stated in the Collection Development Guidelines and Procedures 20 All Internet access on NCRL library computers is filtered. 21 22 23 24 25 26 The library district does not host customer e-mail accounts or provide access to chat rooms. The library district cannot guarantee privacy for individuals using library public access computers to search the Internet and computer screens may be visible to people of all ages, backgrounds, and sensibilities. Customers are requested to exercise appropriate discretion in viewing materials or submitting sensitive personal information. Minors, in particular, are discouraged from sharing personal information online. ORDER ~ 9 1 Hacking and other unlawful online activities are prohibited. 2 The District’s director is responsible procedures to carry out this policy. for establishing 3 Id. at 8-9. 4 Pursuant to the Policy, public Internet access through the NCRL 5 network is filtered and has been filtered continuously since access began 6 in the late 1990s. Id. at 5-6; Ct. Rec. 41 at 8. NCRL does not and will 7 not disable the filter at the request of an adult patron. (Ct. Rec. 29 8 at 6; Ct. Rec. 41 at 8.) 9 C. Internet Filtering at NCRL 10 1. How Filtering is Accomplished 11 Prior to October 2006, NCRL filtered Web content using a software 12 product called SmartFilter, Bess edition. (Ct. Rec. 41 at 13.) In 13 October 2006, as part of a comprehensive network and cataloguing system 14 upgrade, NCRL replaced its SmartFilter product with a Web-based filtering 15 solution offered by Fortinet called the FortiGuard Web Filtering Service 16 (“FortiGuard”). (Ct. Rec. 29 at 11; Ct. Rec. 41 at 13.) The FortiGuard 17 service has two primary components: the FortiGuard Rating Server and the 18 FortiGate firewall/proxy unit. (Ct. Rec. 35 at 2; Ct. Rec. 41 at 13.) 19 The FortiGuard Rating Server is a database maintained by Fortinet 20 that catalogues more than 43 million Web sites and over two (2) billion 21 individual Web pages. (Ct. Rec. 29 at 11; Ct. Rec. 35 at 2; Ct. Rec. 41 22 at 13) Using a combination of proprietary algorithms and human review, 23 Fortinet sorts sites and pages into seventy-six (76) categories based on 24 predominant content, and also assigns Web sites to one (1) of seven (7) 25 classifications based on media types and sources. 26 ORDER ~ 10 (Ct. Rec. 29 at 11; 1 Ct. Rec. 35 at 2-3; Ct. Rec. 41 at 12.) 2 Fortinet review its classification of a particular Web site or page by 3 using an electronic form available on the Fortinet site. 4 at 12.) 5 Any one may request that (Ct. Rec. 29 A FortiGate unit is installed at each of NCRL’s 28 branches. (Ct. 6 Rec. 41 at 13.) The FortiGate unit is an appliance that acts as an 7 intermediary between a user’s computer browser and the servers. Id. All 8 Internet traffic to and from NCRL’s public use computers is routed 9 through the FortiGate unit, which filters Web content in accordance with 10 information provided by the Fortinet Rating Server and settings 11 established by NCRL that define which categories and classifications of 12 Web sites to block. 13 access to a Web site or page is denied, the computer user receives a 14 message to that effect. 15 image is denied, the user receives no message; instead, a blank image is 16 substituted for the blocked image. Id. (Ct. Rec. 29 at 13-15; Ct. Rec. 41 at 13-15.) (Ct. Rec. 41 at 15.) If If access to an embedded 17 2. 18 The Internet site categories that NCRL’s FortiGuard filter is 19 configured to block – along with category descriptions provided by 20 Fortinet – are listed below: 21 22 23 24 NCRL’s FortiGuard Configuration Hacking Websites that depict illicit activities surrounding the unauthorized modification or access to programs, computers, equipment and websites. Proxy AvoidanceWebsites that provide information or tools on how to bypass Internet access controls and browse the Web anonymously, includes anonymous proxy servers. 25 26 ORDER ~ 11 1 Phishing Counterfeit web pages that duplicate legitimate business webpages for the purpose of eliciting financial, personal or other private information from the users. Adult MaterialsMature content websites (18+ years and over) that feature or promote sexuality, strip clubs, sex shops, etc. excluding sex education, without the intent to sexually arouse. Gambling Sites that cater to gambling activities such as betting, lotteries, casinos, i n c l u d ing gamin g information, instruction, and statistics. Nudity a n dMature content websites (18+ years and Risque over) that depict the human body in full or partial nudity without the intent to sexually arouse. Pornography Mature content websites (18+ years and over) which present or display sexual acts with the intent to sexually arouse and excite. Web Chat Websites that promote Web chat services. I n s t a n tWebsites that allow users to communicate Messaging in “real-time” over the Internet. Malware Sites that are infected with destructive or malicious software, specifically designed to damage, disrupt, attack or manipulate computer systems without the user’s consent, such as virus or trojan horse. Spyware Sites that host software that is covertly downloaded to a user’s machine, to collect information and monitor user activity, including spyware, adware, etc. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Id. at 16-17. NCRL also blocks the Image Search, Video Search, and Spam 20 URL classifications of Web sites, as well as certain specific sites and 21 pages within those sites.2 22 23 24 25 26 2 Web NCRL blocks netvue.com and pixsy.com, and certain pages within sites, including: ask.com/images, ask.com/pictures, search.live.com/images, images.google.com and images.search.yahoo.com (image search ORDER ~ 12 engines); and craigslist.org/cgi-bin/personals.cgi (a 1 3. Accessibility of Blocked Internet Sites 2 If a NCRL patron wishes to access a Web site or page that is blocked 3 by FortiGuard, the patron may ask NCRL to manually override the filter 4 by sending an email to NCRL administrators. 5 41 at 8-9.) 6 is reviewed to determine whether allowing access would be consistent with 7 NCRL’s mission, its Policy, and the Childrens Internet Protection Act's 8 (CIPA) requirements. 9 at 4, 8.) (Ct. Rec. 29 at 17; Ct. Rec. When a request is submitted, the Web site or page at issue (Ct. Rec. 29 at 17; Ct. Rec. 41 at 8; Ct. Rec. 49 If the request is approved, access is allowed on all public 10 computers in all branches. (Ct. Rec. 41 at 8.) If, on the other hand, 11 NCRL deems the request to be inconsistent with its mission, its Policy, 12 or CIPA, the request is denied. 13 Ct. Rec. 49 at 4, 8.) 14 sites (including 90 automated requests) between October 1, 2007, and 15 February 20, 2008. 16 NCRL responded as follows: (Ct. Rec. 29 at 17; Ct. Rec. 41 at 8; NCRL received 92 requests to unblock access to Web (Ct. Rec. 57 at 7.) Of those 90 automated requests, 17 • within less than an hour to eight (8) of the requests; 18 • within the same day to nineteen (19) of the requests; 19 • the day after twenty-nine (29) of the requests; 20 21 22 personals site). 23 FortiGuard filter, NCRL initially blocked but susquently unblocked the 24 YouTube, MySpace, and Craigslist Web sites (excluding the personals 25 26 (Ct. Rec. 41. at 17.) Since it implemented the section of the Craigslist site). 18.) ORDER ~ 13 (Ct. Rec. 29 at 33; Ct. Rec. 41 at 17- 1 • 2 more than twenty-four (24) hours, but less than three days, after twenty (20) of the requests 3 • more than three (3) days after five (5) of the requests; and 4 • there is no evidence in the record if NCRL responded to the 5 6 remaining eleven (11) requests. Since October 1, 2007, NCRL unblocked sites upon request on twelve 7 (12) occasions. Id. Examples of sites unblocked at a patron’s request 8 include: www.keyartpromotions.com, artbyjohndan.com (described by the 9 requestor as “non-offensive, mostly abstract art”), www.pcthandbook.com 10 (erroneously blocked as Pornography), www.firstthings1st.com (described 11 by the requestor as a nonprofit ministry but erroneously blocked as 12 Gambling), and www.ourfamily-web.com (erroneously blocked as Malware). 13 Id. at 7-8. 14 site under the “Gambling” category, even though the site did not itself 15 allow any online gambling; upon a patron's request, NCRL unblocked access 16 to the tribe's Web site while the patron was in the library researching 17 employment opportunities. FortiGuard also blocked access to the Kalispel tribe’s Web (Ct. Rec. 57-3 at 210-13.) 18 4. The FortiGuard Filter’s Error Rates 19 Like all Internet filters, the FortiGuard filter makes mistakes. 20 (Ct. Rec. 41 at 18.) In some instances, NCRL patrons were able to 21 obtain pornographic, sexually explicit, child pornographic, or obscene 22 materials online at NCRL branch libraries. 23 41 at. 18.) 24 that should not be blocked. (Ct. Rec. 29 at 23; Ct. Rec. In other instances, NCRL patrons were unable to access sites (Ct. Rec. 41 at 18-19.) 25 Plaintiffs’ expert Bennett Haselton tested the FortiGuard filter's 26 accuracy, describing his methodology and results in an expert report. ORDER ~ 14 1 Id. at 19. Mr. Haselton determined that of 100,000 randomly-selected 2 .com domains, FortiGuard blocked 536 “real” Web pages as Pornography or 3 Adult Materials, and that of those blocked sites 64 were blocked in 4 error, for an error rate of 11.9%. 5 100,000 randomly-selected .org domains, FortiGuard blocked 207 “real” Web 6 pages as Pornography or Adult Materials, and that of those blocked sites 7 49 were blocked in error, for an error rate of 23.6%. Id. Mr. Haselton determined that of Id. 8 NCRL’s expert, Dr. Paul Resnick, conducted his own study based on 9 the URLs that were actually visited or requested at NCRL branch libraries 10 during the week of August 23-29, 2007. (Ct. Rec. 29 at 28; Ct. Rec. 57 11 at. 17.) 12 or requested during the week of August 23-29, 2007, 2,180 URLs were 13 blocked by the FortiGuard filter under NCRL’s filtering policy; and that 14 of those 2,180 URLs: Dr. Resnick found that, of the 60,000 URLs that were visited ! 289 complete Web pages were blocked, with 20 of those blocked in 15 16 error; 17 ! 1,406 “helper images” (that is, “little images that are parts of 18 web pages”) were blocked, with 744 of those blocked in error; 19 ! 194 “other images” were blocked, with 24 of those blocked in 20 error; and ! 110 URLs were not “ratable” – meaning that Dr. Resnick could not 21 22 determine whether they had been correctly blocked. 23 (Ct. Rec. 57 at 17-19; Ct. Rec. 62 at 17-18.) 24 D. Filtering Alternatives 25 NCRL installed privacy screens on terminals in its Wenatchee branch 26 when Internet access was first provided in approximately 1999, but ORDER ~ 15 1 removed the screens shortly thereafter. (Ct. Rec. 41 at 20; Ct. Rec. 49 2 at 16.) 3 full-time Internet filtering, such as recessed desks or a tap-and-tell 4 policy. 5 librarians to monitor and respond to complaints of inappropriate public 6 computer use. 7 E. Since 1999, NCRL has not considered any other alternatives to (Ct. Rec. 41 at 21; Ct. Rec. 49 at 17.) NCRL expects branch (Ct. Rec. 29 at 23.) The Complaint 8 Plaintiffs challenge the Policy's constitutionality - in particular, 9 NCRL's decisions to not disable the Internet filter at the request of an 10 adult. 11 U.S. Constitution and Article I, § 5 of the Washington Constitution. 12 They seek permanent injunctive relief requiring NCRL to turn off Internet 13 filtering upon an adult patron's request. 14 15 16 II. Plaintiffs claim the Policy violates the First Amendment of the Defendant North Central Regional Library District’s Motion for Certification of Questions of State Constitutional Law (Ct. Rec. 37) The threshold motion before the Court is NCRL’s certification 17 motion. NCRL asks the Court to certify standing and constitutional 18 issues 19 Plaintiffs oppose the motion because certification is an unnecessary to the Washington Supreme Court pursuant to RCW 2.60.020.3 20 21 3 22 1. Whether Plaintiffs have standing to challenge on state constitutional grounds NCRL’s Internet Use Policy and practice pursuant to which NCRL elects not to disable internet filtering upon the request of library adult patrons. 2. If Plaintiffs have standing, whether NCRL’s Internet Use Policy and practice is permissible under Article 1, § 5 of the Washington State Constitution. The two certification questions posed by NCRL are: 23 24 25 26 ORDER ~ 16 1 complication that will burden this Court, the state court, and the 2 parties. 3 A. Standard 4 RCW 2.60.020 states: 5 When in the opinion of any federal court before whom a proceeding is pending, [1] it is necessary to ascertain the local law of this state in order to dispose of such proceeding and [2] the local law has not been clearly determined, such federal court may certify to the supreme court for the answer the question of local law involved and the supreme court shall render its opinion in answer thereto. 6 7 8 9 10 RCW 2.60.020 (2008) (emphasis added). B. State Constitutional Issue(s) 11 NCRL asks the Court to certify to the Washington Supreme Court 12 Plaintiffs' Washington Article 1, § 5 constitutional challenge to the 13 Policy. 14 1. “Necessary to ascertain the local law of this state in order to dispose of such proceeding” 15 Plaintiffs challenge NCRL's Policy on both state and federal 16 constitutional grounds. Defendants highlight the federal “doctrine that 17 federal courts should not decide federal constitutional issues when 18 alternative grounds yielding the same relief are available.” Kuba v. 1-A 19 Agr. Ass’n, 387 F.3d 850, 856 (9th Cir. 2004); Barnes-Wallace v. City of 20 San Diego, 471 F.3d 1038, 1046-47 (9th Cir. 2007) (citing to City of 21 Mesquite v. Aladdin’s Castle, 455 U.S. 282, 295 (1982)). In compliance 22 with this directive, the First Amendment issue need not be reached if 23 Washington Article 1, § 5 provides Plaintiffs with the relief they 24 request - invalidation of the Policy. 25 26 ORDER ~ 17 1 In their motion for summary judgment, Plaintiffs argue Article 1, 2 § 5 is more protective than the First Amendment with respect to overly 3 broad governmental policies. 4 overbroad that it leads to a prior restraint. 5 109 Wn. 2d 796, 804 (1988). 6 section 5 categorically rules out prior restraints on constitutionally 7 protected speech under any circumstances.” 8 9 10 11 12 This is correct if the policy is so See O’Day v. King County, “Unlike the First Amendment, [A]rticle 1, Id. Chilling of free speech is the product of state action, which exists if “the conduct allegedly causing the deprivation of a federal right [is] fairly attributable to the State.” This court has concluded that the Washington Constitution is less tolerant of overly broad restrictions on speech than the Federal First Amendment and that “regulations that sweep too broadly chill protected speech prior to publication, and thus may rise to the level of a prior restraint”, while the United States Supreme Court “considers the overbreadth doctrine ‘strong medicine’, employing it only as a ‘last resort.’ 13 Soundgarden, 123 Wn.2d at 764-65; see also Voter Educ. Comm. v. Public 14 Disc. Comm., 161 Wn. 2d 470, 496 (2007).4 15 Because Plaintiffs argue that the Policy is overbroad, and 16 Washington Constitution Article 1, § 5 provides greater protection 17 against policies that rise to the level of a prior restraint, the Court 18 19 4 20 The Washington Supreme Court determined that Article 1, § 5 21 disallows prior restraints and, therefore, a 22 Wn.2d 54, 58 (1986), analysis is not needed to determine whether the 23 Washington Constitution provides a separate and independent grounds of 24 decision as compared to the federal constitution. See Voters Educ. Comm. 25 v. Wash. State Public. Disclosure Comm’n, 161 Wn.2d 470, 494 n.16 (2007); 26 Washington v. Gunwall, 106 Ino Ino Ino v. City of Bellevue, 132 Wn.2d 103, 114-22 (1997). ORDER ~ 18 1 finds that a ruling in Plaintiffs’ favor on Article 1, § 5 will provide 2 Plaintiffs with the relief requested. 3 constitutional issue(s) must be resolved before the First Amendment 4 issue(s). Accordingly, the Washington state RCW 2.60.020's first requirement is satisfied. 5 2. “Local law has not been clearly determined” 6 NCRL contends Washington law has not clearly determined a state 7 library's discretionary authority to filter public Internet access. 8 Plaintiffs contend Washington constitutional law is clearly determined 9 and that this Court is in just as good of a position as the Washington 10 Supreme Court to analyze the state constitutional issue(s). 11 cases cited by Plaintiffs set forth Washington’s overbreadth principles 12 but do not clearly address whether a library's public Internet filter use 13 violates Article 1, § 5: 14 and O’Day v. King County, 109 Wn.2d 796, 803-04 (1988). 15 The two Soundgarden v. Eikenberry, 123 Wn. 2d 750, 764, In fact, there are only three reported cases addressing Internet 16 filter use in public libraries: United States v. American 17 Association, 539 U.S. 94 (2003); Miller v. NW Region Library Bd., 348 F. 18 Supp. 2d 563, 569-70 (M.D.N.C. 2004); and Mainstream Loudoun v. Board of 19 Trustees of the Loudoun County Public Library, 24 F. Supp. 2d 552 (E.D. 20 Va. 1998) - none are Washington decisions. 21 decision in American Library Association indicates that the nature of the 22 library’s mission and functions are critical components to consider when 23 determining whether a library’s Internet-filtering system violates free 24 speech rights. 25 Congress’ spending power). 26 will balance a library’s mission and functions with an adult’s free ORDER ~ 19 Library The U.S. Supreme Court’s 539 U.S. 94 (upholding CIPA following a challenge under But, it is presently unclear how Washington 1 speech rights under Article 1, § 5, especially in light of CIPA, 20 2 U.S.C. § 9134(f). 3 of RCW 2.60.020 is met. Accordingly, the Court finds the second requirement 4 3. “May Certify” 5 The parties disagree as to whether certification is best. NCRL 6 contends certification will promote state and federal comity; Plaintiffs 7 contend that certification will burden the state court and cause delay 8 and expense. 9 The Court acknowledges that certification is not required; rather, 10 it is a within this Court's discretion. 11 Court is in a better position than this Court to determine what role a 12 state library’s mission and functions play in the Article 1, § 5 13 analysis, the Court finds certification appropriate. 14 by certification is not of great concern to the Court given that this 15 case, which was filed in November 2006, advanced to the summary-judgment 16 stage slowly at the parties' request. 17 Plaintiffs’ request for Order requiring NCRL to bear the costs associated 18 with certification. 19 C. 20 Since the Washington Supreme Any delay caused Therefore, the Court denies Standing Issues NCRL argued that standing is intertwined with the constitutional 21 issues; the Court disagrees. 22 suffered an injury in 23 violates either the First Amendment or Article 1, § 5. Therefore, below, 24 the Court will consider the standing issues under the clearly-established 25 federal standing principles. 26 U.S. 555, 560 (1992). ORDER ~ 20 The Court can determine whether Plaintiffs fact without determining whether the Policy See Lujan v. Defenders of Wildlife, 504 1 D. Conclusion 2 The Court finds it is necessary to ascertain Washington law with 3 respect to a library's public computer Internet filtering because Article 4 1, § 5 provides broader coverage from an overly broad governmental policy 5 than the First Amendment. 6 role a state library’s mission and functions play in analyzing whether 7 a 8 Therefore, the Court exercises its discretion to certify the state 9 constitutional issue(s) to the Washington Supreme Court. library’s Washington law does not clearly define what Internet-filtering policy violates Article 1, § However, 5. the 10 Court denies NCRL's request to certify standing issues, which the Court 11 addresses below. III. 12 13 Motions for Summary Judgment The parties filed cross-motions for summary judgment. elects 14 Court 15 Washington Supreme Court, the Court holds in abeyance the motions for 16 summary judgment pertaining to the constitutionality of NCRL's Internet- 17 filtering system. 18 the 19 constitutional challenges. 20 standing 21 constitutionality, the Court addresses that portion of NCRL's motion. 22 A. Court to is to certify the state constitutional Because the issue(s) to the NCRL's motion for summary judgment preliminarly asked find that separate Plaintiffs lack standing to raise the Because the Court finds the question of and apart from the filtering system's Summary Judgment Standard 23 Summary judgment is appropriate if the “pleadings, depositions, 24 answers to interrogatories, and admissions on file, together with the 25 affidavits, if any, show that there is no genuine issue as to any 26 material fact and that the moving party is entitled to judgment as a ORDER ~ 21 1 matter of law.” FED . R. CIV . P. 56(c). 2 summary judgment, the opposing party must point to 3 establishing that there is a genuine issue for trial. 4 Catrett, 477 U.S. 317, 324 (1986). 5 such a showing for any of the elements essential to its case for which 6 it bears the burden of proof, the trial court should grant the summary 7 judgment motion. 8 burden of [showing that it is entitled to judgment as a matter of law], 9 its opponent must do more than show that there is some metaphysical doubt Id. at 322. Once a party has moved for specific facts Celotex Corp. v. If the nonmoving party fails to make “When the moving party has carried its 10 as to material facts. In the language of [Rule 56], the nonmoving party 11 must come forward with ‘specific facts showing that there is a genuine 12 issue for trial.’” 13 475 U.S. 574, 586-87 (1986) (citations omitted) (emphasis in original 14 opinion). Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 15 When considering a motion for summary judgment, a court should not 16 weigh the evidence or assess credibility; instead, “the evidence of the 17 non-movant is to be believed, and all justifiable inferences are to be 18 drawn in his favor.” 19 (1986). 20 made by the non-moving party that are flatly contradicted by the record. 21 See Scott v. Harris, 127 S. Ct. 1769, 1776 (2007). 22 B. 23 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 This does not mean that a court will accept as true assertions Standing NCRL argues Plaintiffs do not have standing to bring “as applied” 24 challenges. 25 traditional standing rules apply: a litigant must establish injury in 26 ORDER ~ 22 To bring an “as applied” challenge to a statute, the 1 fact, causation, and redressability.5 2 504 U.S. 555, 560 (1992). 3 traditional standing rules to permit First Amendment facial overbreadth 4 attacks on a statute. 5 Vincent, 466 U.S. 789, 798 (1984); Broadrick v. Oklahoma, 413 U.S. 61, 6 612 (1973). Lujan v. Defenders of Wildlife, The Supreme Court, however, has altered its City Council of Los Angeles v. Taxpayers for 7 The Court finds SAF has standing to bring an “as applied” challenge. 8 Although SAF does not have evidence that their Web sites were/are blocked 9 by the filter, Plaintiff Heinlen testified that he tried to access one 10 of SAF’s Web sites and was denied access by the filter. Accordingly, the 11 Policy caused an injury in fact to SAF, as it is uncontested that this 12 site should not be blocked. 13 Next, the Court finds Ms. Cherrington also presented sufficient 14 evidence that she suffered an injury in fact due to NCRL's Policy. The 15 Court concludes it is not necessary that Plaintiffs identify the URL of 16 the Web site that the filter blocked, but rather allege that they 17 experienced an inability to access a Web site due to the filter. 18 Cherrington did so. 19 the cause of her inability to view the desired Web site. 20 the Court finds Ms. Bradburn failed to present sufficient evidence of an Ms. Ms. Bradburn, however, was unable to testify as to Accordingly, 21 22 23 24 25 26 5 “Injury in fact” requires evidence of “an invasion of a legally- protected interest which is concrete and particularized and actual or imminent, not conjectural or hypothetical.” ORDER ~ 23 Lujan, 504 U.S. at 560. 1 injury caused by the Policy to have standing to bring an “as applied” 2 challenge to the Policy; she may, however, pursue a facial challenge.6 3 Lastly, the Court finds Mr. Heinlen has standing to bring an “as 4 applied” challenge to the Policy. 5 variety of Web sites that he was not able to view because of the filter. 6 These Web sites are currently unblocked; however, “[i]t is well settled 7 that a defendant’s voluntary cessation of a challenged practice does not 8 deprive a federal court of its power to determine the legality of the 9 practice.” 10 Mr. Heinlein was able to list a Aladdin’s Castle, 455 U.S. at 289; see also Loudoun, 24 F. Supp. 2d at 558-59. 11 Accordingly, NCRL’s motion is granted (Ms. Bradburn may only bring 12 a facial challenge) and denied in part (all other Plaintiffs may bring 13 an as applied challenge). IV. CONCLUSION 14 15 For the reasons given above, IT IS HEREBY ORDERED: 16 1. Defendant North Central Regional Library District’s Motion for 17 Certification of Questions of State Constitutional Law (Ct. Rec. 37) is 18 GRANTED (constitutional issue(s)) AND DENIED (standing) IN PART. 19 20 2. Defendant NCRL’s Motion for Summary Judgment (Ct. Rec. 28) is GRANTED (Ms. Bradburn may only bring a facial challenge), DENIED (all 21 22 23 6 In a facial challenge, the court looks only at the language of 24 the policy to determine whether it violates the constitution. 25 v. City of Seattle, 126 Wn.2d 1, 3 (1995) 26 ORDER ~ 24 JJR, Inc. 1 other Plaintiffs have standing to bring as applied challenge), AND HELD 2 IN ABEYANCE IN PART (constitutional issues). Plaintiffs’ Motion for Summary Judgment (Ct. Rec. 39) is HELD 3 3. 4 IN ABEYANCE. 5 4. 6 7 8 9 The remaining pretrial deadlines, pretrial conference, and trial are STRICKEN. IT IS SO ORDERED. The District Court Executive is directed to enter this Order and provide copies to counsel. DATED this 30th day of September 2008. 10 11 s/ Edward F. Shea EDWARD F. SHEA United States District Judge 12 13 Q:\Civil\2006\0327.certif.msj.frm 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER ~ 25

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