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The First Amendment and the Internet:

Loving v. Boren, 956 F. Supp. 953 W.D. Okla. 1997

Summary

In this case, the court rejected a claim by a professor that the University of Oklahomaís decision to restrict the use of one of the servers available to faculty and students to research and academic purposes violated the professorís First Amendment rights.

Analysis

At lease two cases have addressed the breadth of Internet access available to faculty and students through university computer facilities and the constitutional implications of limitations to such access. In Loving, the plaintiff, a professor at the University of Oklahoma (OU), argued that the defendant, the president of OU, violated the First Amendment in blocking news groups -- interactive Internet sites into which anyone with access may place graphic or text messages -- on the Internet from being accessed through the OU news server. The president of OU instituted the policy after a member of Oklahomaís House of Representatives informed him that some of the material accessed through the news groups may violate obscenity laws. The court determined that some of the news groups that were blocked did not contain obscene material and that OU did not undertake a systematic examination of the news groups before blocking their access.

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On the same day that OU blocked these news groups, it established a task force to devise a new policy "to walk the narrow line" between possible violations of state obscenity laws and obligations to observe the First Amendment. Subsequently, OU instituted a new policy in which the university maintained two news servers, the "A" server and the "B" server. The "A" server only allowed access to news groups approved by OU. The "B" server was restricted to users over the age of eighteen and required the user to click on a box that denoted acceptance of the specific terms governing use which required that the server be used for academic and research purposes. The court determined that this new policy allowed recreational use of the Internet through the "A" server and restricted the use of the "B" server for academic and research purposes.

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The plaintiff sought a declaration from the court that his constitutional rights had been violated, apparently by either or both the policy initially instituted by the president and the new policy, as well as an injunction that would require OU to return to its former policy of allowing unrestricted access to all news groups. The United States District Court for the Western District of Oklahoma denied the plaintiffís request for injunctive and declaratory relief. In denying the plaintiffís request for an injunction, the court found that he did not produce any evidence that he or anyone else had suffered irreparable harm such as would warrant an injunction. In denying his request for declaratory relief, the court held that the plaintiff had failed to show that the defendantís actions had affected him personally as is necessary to show the existence of the requisite actual case or controversy.

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Moreover, the court ruled that OUís new policy did not violate the First Amendment in restricting the use of the "B" server to academic and research purposes because OUís computer system was purchased for those exact purposes. In so doing the court held that the OU computer and Internet services were not a public forum because they are not open to the general public or used for public communication. OU had a right to preserve the property under its control for the use to which it was lawfully dedicated i.e., for academic and research uses within which uses an adultís access was "plenary." As the new policy did not violate the First Amendment rights of the plaintiff, the court denied the plaintiff relief, observing that, whatever the constitutional state of affairs may have been before the new policy was enacted, his claim had been rendered moot by the new policy.


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