IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

BILL LOVING, Plaintiff v.
DAVID BOREN, President of the
University of Oklahoma, Defendant

Filed January 28, 1997
No. CIV-96-657-A

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This matter comes before the Court on Plaintiff's complaint for
injunctive and declaratory relief. Plaintiff is a professor at
the University of Okahoma. Defendant is the President of the
University of Oklahoma (OU). Plaintiff alleges that Defendant has
violated his rights of free speech guaranteed by the First
Amendment. Trial was held on January 17, 1997. On that date, the
Court took the matter under advisement and now makes the
following findings and conclusions.

Sometime prior to March 29, 1996, President Boren was visited by
Representative Peary of the Oklahoma House of Representatives.
Representative Peary brought to President Boren's attention that
material which he considered clearly obscene was available in
news groups that were carried on OU's news server. He raised
concerns that OU might be violating state law by distributing
obscene 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 of
any type of obscene material." 21 O.S. 1021. It was suggested
that OU was acting as a distributor by allowing obscene material
to be downloaded via the news server owned and operated by OU.

On March 29, 1996, President Boren, through his staff, blocked a
number of news groups from being accessed through the OU news
server. News groups are interactive "places" on the Internet into
which anyone with access, anywhere in the world, may place
graphic or text messages. These messages may then be read, looked
at or added to, by anyone else whith access. Prior to March 29,
1996, users of the OU news server had unlimited access to all
news groups available on the Internet. After March 29, 1996,
users of the OU news server no longer had any access to the
blocked groups through that server, although computer-savvfy
users could get to the same news groups through other, perhaps
less convenient, routings.

President Boren resolved to block certain groups because he
believed that they arguably contained obscene material the
dissemination of which would violation state law. The violation
[sic] could result in institutional and personal criminal
penalties, and perhaps forfeiture of the OU computers. It is
unclear from testimony at trial how the blocked groups were
chosen. It is clear that there was no systematic examination of
the groups before they were blocked, and that some groups that
did not contain obscene material were blocked.

On the same day that the groups were blocked, the University
undertook to devise a new policy that would attempt to walk the
narrow line that OU officials perceived, a line between possible
violations of state law and obligations to observe the First
Amendment. In the nature of academic communities, this change in
policy required the assembly of a task force and the
participation of several committees, the faculty senate, and the
Board of Regents. The process was necessarily slow. Sometime in
the first week of January, 1997, shortly before trial, OU put its
new policy in place.

PLAINTIFF'S CLAIM

Plaintiff seeks a declaration that his constitutional rights were
violated and an injunction that would require OU to return to its
former policy of allowing access to all news groups via an
unrestricted news server. In order to merit an injunction, a
plaintiff must demonstrate that he will be irreparably harmed if
the 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 without
demonstrating an essential element. Plaintiff called as witnesses
President Boren and the Director of Computing Services at OU, but
he did not testify himself. He did not present any evidence at
trial that he was harmed by the actions of Plaintiff or that he
will suffer any harm if no injunction is granted. There was no
specific, substantial evidence at trial that Plaintiff was
effected by the blocking. Indeed, there was no evidence that any
person ever attempted to reach the news groups that were blocked
during the period that they were blocked. Material that was
discussed by Plaintiff in his argument is not evidence. Only
testimony under oath or exhibits entered into evidence may be
considered as evidence by the Court. Plaintiff has failed to
establish facts that would merit an injunction.

Similarly, Plaintiff has not made out a claim for declaratory
relief. He has not shown that Defendant's actions affected him
personally. "In the trial court, of course, a party seeking
declaratory judgment has the burden of establishing the existence
of an actual case or controversy." Cardinal Chemical Company v.
Morton International, Inc., 508 U.S. 83, 95 (1993). Plaintiff has
failed to meet that burden. Without reaching any conclusions
about the actions of the defendant, the Court determines that
Plaintiff has not shown that his constitutional rights were
violated.

THE NEW POLICY

The new policy for access to news servers at OU meets
constitutional standards. Under the new policy, put in place by
OU in January of 1987, OU maintains two news servers. The "A"
server allows access to only those news groups approved by OU, or
rather, those groups that have not been disapproved. The "B"
server allows access to all news servers, including those
previously blocked. Use of the "B" server is restricted; to acces
the "B" server, a user must be over eighteen years of age, and
must "click" on a box that denotes acceptance of specific terms
governing the use of the "B" server. According to the terms of
use, the "B" server may only be used for academic and research
purposes.

The result of this policy is to allow recreational use of
Internet services on the "A" server, but to restrict the use of
certain news groups to academic and research purposes. A
university is by its nature dedicated to research and academic
purposes. The limitation of OU Internet services is to research
and academic purposes on the "B" server is not an [sic] violation
of the First Amendment, in that those purposes are the very ones
for which the system was purchased.

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. In this
case, the OU computer and Internet services are lawfully
dedicated to academic and research uses. Within these uses,
access by an adult is plenary.

Whatever the constitutional stat of affairs may have been before
the new policy was enacted, the current situation meets
constitutional requirements. Thus, by enacting the new policy, OU
has effectively mocked Plaintiff's claim.

ALTERNATIVE ROUTES

OU makes a second argument for mootness. Evidence at trial showed
that during the period when certain news groups were blocked on
the OU news server, those news groups could still be reached
using OU computers, via the Internet or the World Wide Web. The
Court is puzzled by this argument. According to the testimony of
President Boren, news groups were blocked from the OU news server
because of concerns that OU arguably could be regarded as
"distributing" obscene material found in some of those news
groups, through that news server, in violation of state law. Yet
OU argues that the same obscene material could have been reached
at any time in other ways, using OU computers.

Neither argument at trial nor the briefs give an indication of
whether OU is liable to state prosecution when users reach
obscene material through the alternative route on the Internet or
Web using OU computers. However, the Court agrees that the fact
of alternative routes to reach the blocked news groups does make
Plaintiff's claim moot.

CAPABLE OF REPETITION, YET EVADING REVIEW

Courts will consider issues that are moot, but "capable of
repetition, yet evading review." Norman v. Reed, 502 U.S. 279,
288 (1992); Moore v. Oglivie, 394 U.S. 814, 816 (1969). Plaintiff
argueds that his case is capable of repetition. He argues that OU
could block all Internet access and thus block the alternative
routes to news groups. There is no indication that this will
occur. The new policy put in place by OU does not provide for
further blocking of access. Federal courts may not "give opinions
upon 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 Internet
access, there is no case or controversy for the Court to
consider.

Plaintiff also argues that, theoretically, every server in the
world could choose to block a particular news group and then that
group could not be reached via the Internet or the the Web. This
is theoretically true, but so impossibly remote that the Court
will not consider the argument.

CONCLUSION

The Court finds that Plaintiff's constitutional rights were not
violated 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

JUDGMENT

Pursuant to the Findings of Fact and Conclusions of Law issued
January 28, 1997, judgment is entered in favor of defendant,
David Boren, President of the University of Oklahoma, and against
the plaintiff, Bill Loving.

WAYNE E. ALLEY
United States District Judge

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