Member of U of Oklahoma faculty challenge to university's computer use policy limiting access to certain newsgroups.
"The OU computer and Internet services do not constitute a public forum. There was no evidence at trial that the facilities have ever been open to the general public or used for public communication. "[T]he state, no less than a private owner of property, has the right to preserve the property under its control for the use to which it is lawfully dedicated."
Filed January 28, 1997 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMABILL LOVING, ) )Plaintiff ) )v. ) No. CIV-96-657-A )DAVID BOREN, President of the )University of Oklahoma ) )Defendant ) FINDINGS OF FACT AND CONCLUSIONS OF LAWThis matter comes before the Court on Plaintiff's complaint forinjunctive and declaratory relief. Plaintiff is a professor atthe University of Okahoma. Defendant is the President of theUniversity of Oklahoma (OU). Plaintiff alleges that Defendant hasviolated his rights of free speech guaranteed by the FirstAmendment. Trial was held on January 17, 1997. On that date, theCourt took the matter under advisement and now makes thefollowing findings and conclusions.Sometime prior to March 29, 1996, President Boren was visited byRepresentative Peary of the Oklahoma House of Representatives.Representative Peary brought to President Boren's attention thatmaterial which he considered clearly obscene was available innews groups that were carried on OU's news server. He raisedconcerns that OU might be violating state law by distributingobscene material. Oklahoma law makes it a felony to "distribute... any obscene or indecent writing, paper, book, picture,photograph, motion picture, figure, form or any description ofany type of obscene material." 21 O.S. 1021. It was suggestedthat OU was acting as a distributor by allowing obscene materialto be downloaded via the news server owned and operated by OU.On March 29, 1996, President Boren, through his staff, blocked anumber of news groups from being accessed through the OU newsserver. News groups are interactive "places" on the Internet intowhich anyone with access, anywhere in the world, may placegraphic or text messages. These messages may then be read, lookedat or added to, by anyone else whith access. Prior to March 29,1996, users of the OU news server had unlimited access to allnews groups available on the Internet. After March 29, 1996,users of the OU news server no longer had any access to theblocked groups through that server, although computer-savvfyusers could get to the same news groups through other, perhapsless convenient, routings.President Boren resolved to block certain groups because hebelieved that they arguably contained obscene material thedissemination of which would violation state law. The violation[sic] could result in institutional and personal criminalpenalties, and perhaps forfeiture of the OU computers. It isunclear from testimony at trial how the blocked groups werechosen. It is clear that there was no systematic examination ofthe groups before they were blocked, and that some groups thatdid not contain obscene material were blocked.On the same day that the groups were blocked, the Universityundertook to devise a new policy that would attempt to walk thenarrow line that OU officials perceived, a line between possibleviolations of state law and obligations to observe the FirstAmendment. In the nature of academic communities, this change inpolicy required the assembly of a task force and theparticipation of several committees, the faculty senate, and theBoard of Regents. The process was necessarily slow. Sometime inthe first week of January, 1997, shortly before trial, OU put itsnew policy in place. PLAINTIFF'S CLAIMPlaintiff seeks a declaration that his constitutional rights wereviolated and an injunction that would require OU to return to itsformer policy of allowing access to all news groups via anunrestricted news server. In order to merit an injunction, aplaintiff must demonstrate that he will be irreparably harmed ifthe injunction is not granted. See Country Kids 'N City Slicks,Inc. v. Sheen, 77 F.3d 1280 (10th Cir. 1996).The Plaintiff, representing himself, rested his case withoutdemonstrating an essential element. Plaintiff called as witnessesPresident Boren and the Director of Computing Services at OU, buthe did not testify himself. He did not present any evidence attrial that he was harmed by the actions of Plaintiff or that hewill suffer any harm if no injunction is granted. There was nospecific, substantial evidence at trial that Plaintiff waseffected by the blocking. Indeed, there was no evidence that anyperson ever attempted to reach the news groups that were blockedduring the period that they were blocked. Material that wasdiscussed by Plaintiff in his argument is not evidence. Onlytestimony under oath or exhibits entered into evidence may beconsidered as evidence by the Court. Plaintiff has failed toestablish facts that would merit an injunction.Similarly, Plaintiff has not made out a claim for declaratoryrelief. He has not shown that Defendant's actions affected himpersonally. "In the trial court, of course, a party seekingdeclaratory judgment has the burden of establishing the existenceof an actual case or controversy." Cardinal Chemical Company v.Morton International, Inc., 508 U.S. 83, 95 (1993). Plaintiff hasfailed to meet that burden. Without reaching any conclusionsabout the actions of the defendant, the Court determines thatPlaintiff has not shown that his constitutional rights wereviolated. THE NEW POLICYThe new policy for access to news servers at OU meetsconstitutional standards. Under the new policy, put in place byOU in January of 1987, OU maintains two news servers. The "A"server allows access to only those news groups approved by OU, orrather, those groups that have not been disapproved. The "B"server allows access to all news servers, including thosepreviously blocked. Use of the "B" server is restricted; to accesthe "B" server, a user must be over eighteen years of age, andmust "click" on a box that denotes acceptance of specific termsgoverning the use of the "B" server. According to the terms ofuse, the "B" server may only be used for academic and researchpurposes.The result of this policy is to allow recreational use ofInternet services on the "A" server, but to restrict the use ofcertain news groups to academic and research purposes. Auniversity is by its nature dedicated to research and academicpurposes. The limitation of OU Internet services is to researchand academic purposes on the "B" server is not an [sic] violationof the First Amendment, in that those purposes are the very onesfor which the system was purchased.The OU computer and Internet services do not constitute a publicforum. There was no evidence at trial that the facilities haveever been open to the general public or used for publiccommunication. "[T]he state, no less than a private owner ofproperty, has the right to preserve the property under itscontrol for the use to which it is lawfully dedicated. In thiscase, the OU computer and Internet services are lawfullydedicated to academic and research uses. Within these uses,access by an adult is plenary.Whatever the constitutional stat of affairs may have been beforethe new policy was enacted, the current situation meetsconstitutional requirements. Thus, by enacting the new policy, OUhas effectively mocked Plaintiff's claim. ALTERNATIVE ROUTESOU makes a second argument for mootness. Evidence at trial showedthat during the period when certain news groups were blocked onthe OU news server, those news groups could still be reachedusing OU computers, via the Internet or the World Wide Web. TheCourt is puzzled by this argument. According to the testimony ofPresident Boren, news groups were blocked from the OU news serverbecause of concerns that OU arguably could be regarded as"distributing" obscene material found in some of those newsgroups, through that news server, in violation of state law. YetOU argues that the same obscene material could have been reachedat any time in other ways, using OU computers.Neither argument at trial nor the briefs give an indication ofwhether OU is liable to state prosecution when users reachobscene material through the alternative route on the Internet orWeb using OU computers. However, the Court agrees that the factof alternative routes to reach the blocked news groups does makePlaintiff's claim moot. CAPABLE OF REPETITION, YET EVADING REVIEWCourts will consider issues that are moot, but "capable ofrepetition, yet evading review." Norman v. Reed, 502 U.S. 279,288 (1992); Moore v. Oglivie, 394 U.S. 814, 816 (1969). Plaintiffargueds that his case is capable of repetition. He argues that OUcould block all Internet access and thus block the alternativeroutes to news groups. There is no indication that this willoccur. The new policy put in place by OU does not provide forfurther blocking of access. Federal courts may not "give opinionsupon moot questions or abstract propositions." Calderon v. Moore,116 S.Ct. 2066, 2067 (1996); Mills. v. Green, 159 U.S. 651, 653(1895). Until OU takes action to block Plaintiff's Internetaccess, there is no case or controversy for the Court toconsider.Plaintiff also argues that, theoretically, every server in theworld could choose to block a particular news group and then thatgroup could not be reached via the Internet or the the Web. Thisis theoretically true, but so impossibly remote that the Courtwill not consider the argument. CONCLUSIONThe Court finds that Plaintiff's constitutional rights were notviolated and that he is not entitled to injunctive relief.Judgment is entered for the Defendant. WAYNE E. ALLEY United States District Judge Filed January 28, 1997 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMABILL LOVING, ) )Plaintiff ) )v. ) No. CIV-96-657-A )DAVID BOREN, President of the )University of Oklahoma ) )Defendant ) JUDGMENTPursuant to the Findings of Fact and Conclusions of Law issuedJanuary 28, 1997, judgment is entered in favor of defendant,David Boren, President of the University of Oklahoma, and againstthe plaintiff, Bill Loving. WAYNE E. ALLEY United States District Judge
