I.    STATEMENT OF JURISDICTION 1

II.   STATEMENT OF THE ISSUE PRESENTED FOR REVIEW 1

III.  STANDARD OF REVIEW 1

IV.  STATEMENT OF THE CASE 2

A.  NATURE OF THE CASE 2

B.  COURSE OF PROCEEDINGS AND DISPOSITION BELOW 3

V.  STATEMENT OF FACTS 3

VI.  SUMMARY OF ARGUMENT 5

VII. RESPONSE TO ARGUMENT 7

A.  The District Court Correctly Held that Plaintiff Failed to Prove Any Policy That Violated Its First Amendment Rights 7

B.  No First Amendment Rights Were Ever Implicated In This Case  10

C.  A Fiber Network is Not A Public Forum 13

VIII. CONCLUSION 18

TABLE OF AUTHORITIES

American Civil Liberties Union v. City of Las Vegas, 333 F.3d 1092 (9th Cir. 2003) 1

Arkansas Educational Television Comm. v. Forbes, 523 U.S. 666,118 S.Ct. 1633,140 L. Ed. 2d 875 (1998) 14

Arizona Life Coalition, Inc. v. Stanton, __F.3d ___ (9th Cir. 2008) 17

Bantam Books v. Sullivan, 372 U.S. 58, 83S. Ct. 631, 9 L. Ed. 2d 584 (1963) 16

Block v. City of Los Angeles, 253 F.3d 410 (9th Cir. 2001) 1

Board of County Com 'rs of Bryan County, Okla v. Brown, 520 U.S. 397, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997) 8

Burlington Ins. Co. v. Oceanic Design & Construction, Inc., 383 F.3d 940 (9th Cir. 2004) 1

City of Canton v. Harris, 487 U.S. 378,109 S. Ct. 1197,103 L. Ed. 2d 412 (1989) 9

Cogswell v. City of Seattle, 347 F.3d 809 (9th Cir. 2003) 15

Committee of Independent P-I v. The Hearst Corp., 704 F.2d 467 (9th Cir. 1983) 11

Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 105 S. Ct. 3439,87 L. Ed. 2d 567 (1985) 14

Cornhusker Casualty Ins. Co. v. Kachman, 514F.3d977(9th Cir. 2008) 7

Currier v. Potter, 379 F.3d 716(9th Cir. 2004) 17

Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965) 17

Ellwest Stereo Theaters v. Wenner, 681 F.2d 1243 (9th Cir. 1982) 11

Greer v. Spock, 424 U.S. 828,96 S. Ct. 1211,47 L. Ed. 2d 505 (1976) 15

Hazelwood v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562,98 L. Ed. 2d 592 (1988) 15

Monell v. Dept. of Soc. Servs., 436 U.S. 658,98 S. Ct. 2018,56 L. Ed. 2d 611 (1978) 6, 7

Oviatt v. Pearce, 954 F.2d 1470 (9th Cir. 1992) 10

Perry Educ. Ass 'n v. Perry Local Educ. Ass'n, 460 U.S. 37, 103 S. Ct. 948,74 L. Ed. 2d 794 (1983) 13,14

Putnam Pit, Inc. v. City of Cookeville, Tennessee, 221 F.3d 834 (6th Cir. 2000) 13

Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995) 14

Saia v. People of New York, 334 U.S. 558, 68 S. Ct. 1148, 92 L. Ed. 2d 1574 (1948) 17

United States v. American Library Association, Inc., 539 U.S. 194, 123 S. Ct. 2297, 156L. Ed. 2d 221 (2003) 13,16

United States v. City of Tacoma, 332 F.3d 574 (9th Cir. 2003) 1

United States v. Kokinda, 497 U.S. 720,110 S. Ct. 3115, 111 L. Ed. 2d 571 (1990) 17

Statutes

42 U.S. C. § 1983 6, 7

BRIEF OF APPELLEE

I. STATEMENT OF JURISDICTION.

Defendant agrees with the Plaintiffs Statement of Jurisdiction.

II. STATEMENT OF THE ISSUE PRESENTED FOR REVIEW.

The issue in this case is whether the district court correctly held that
plaintiff failed to show any constitutional violation as a result of its internet
service being disconnected for one hour.

III. STANDARD OF REVIEW.

The district court granted summary judgment to defendant the City of
Ashland on all claims. This court's review of a summary judgment is de novo.
United States v. City of Tacoma, 332 F.3d 574,578 (9th Cir. 2003); Burlington Ins.
Co. v. Oceanic Design and Construction, Inc., 383 F.3d 940,941 (9th Cir. 2004).
This court, like the district court, only considers the facts in the record, and the
judgment may be affirmed on any grounds supported by the record. American
Civil Liberties Union v. City of Las Vegas, 333 F.3d 1092,1097 (9th Cir. 2003).
Any evidentiary rulings made in the context of summary judgment are reviewed
for abuse of discretion. Block v. City of Los Angeles, 253 F.3d 410,416 (9th Cir.
2001).

IV. STATEMENT OF THE CASE.

A. NATURE OF THE CASE

The City of Ashland operates the Ashland Fiber Network (ER-21). The
Ashland Fiber Network ("AFN") in turn enters into contracts with internet service
providers for access to AFN's telecommunications systems (ER-33). AFN
contracts with internet service providers, and the internet service provider in turn
enters into contracts to provide internet service to customers (ER-33).

In August of 2006, a City employee, Richard Holbo, disconnected a modem
which provided internet access to plaintiffs website. Approximately one hour
later, the modem was turned back on (ER-33). The disconnection of the modem
was due to a copyright infringement claim Holbo had received (ER-22).

Plaintiff then brought this lawsuit against the City of Ashland, alleging that
its First Amendment free speech rights had been violated because the fiber
network is a "public forum" and its internet access had been terminated without
notice or an opportunity to be heard prior to the deprivation (ER-10, 11). Plaintiff
alleged that the disconnection was due to the City's disagreement with its website
content (ER-10). Plaintiff also brought a procedural due process claim (ER-10).

B.  COURSE OF PROCEEDINGS AND DISPOSITION BELOW

The City of Ashland moved for summary judgment on the claims brought by
plaintiff on the basis that: (1) Plaintiff had no contract with the City of Ashland,
and therefore had no procedural due process rights; and (2) No First Amendment
considerations existed, as the City of Ashland does not regulate access to the
network based on content that might be posted on websites of customers of the
internet service providers (ER-24-25).

The district court entered judgment in favor of the City of Ashland. The
court held that plaintiff failed to establish any official policy or custom that had
deprived it of any constitutional right (ER-171). The court also held, in response
to an argument about a "failure to train" claim first raised by plaintiff in its
response to the motion for summary judgment that plaintiff failed to establish that
the City engaged in any "deliberate indifference" to the rights of plaintiff by
disconnecting the modem (ER-172). This appeal followed.

V. STATEMENT OF FACTS.

Appellee does not accept plaintiffs Statement of Facts. Plaintiff assumes
that there was a policy in place that regulated speech on the internet. This was the
threshold question which the court found that plaintiff did not prove.

The City of Ashland operates the Ashland Fiber Network (" AFN") (ER-33).
AFN has contracts with various internet service providers permitting those
providers to access AFN's telecommunication system (ER-33). The internet
service providers that have contracts with AFN in turn offer internet services with
individual end-users, like plaintiff (ER-33).

The City of Ashland never had a contract with plaintiff to provide it internet
access (ER-34). The only contracts AFN has are with internet service providers,
not with those internet service providers' customers (ER-34).

On August 1, 2006, Richard Holbo, an employee of AFN, received an e
mail from Kathleen Parker, a syndicated columnist, complaining that a website
known as " American Buddha" had taken her column picture and "doctored" it to
create a pornographic picture (ER-41). Parker claimed that the image was a
copyright violation (ER-41). Holbo contacted Infostructure, the internet service
provider hosting that particular website (ER-34). Holbo told Infostructure about
the copyright violation claim, and the name of the website of which Parker was
complaining (ER-34).

The next day, after speaking with an Infostructure employee, John Dowd,
Holbo disconnected the modem which provided internet access to the American
Buddha web site (ER-34). The modem was reconnected approximately one hour
later (ER-34). The disconnection of the service was not due to the content of the
American Buddha web site (ER-34). The disconnection was done because of the
copyright infringement claim (ER-34). The contracts between the City and
internet service providers, like Infostructure, do not include any content-based
limitations (ER-34, 35-38).

Holbo had in the past been using a procedure to deal with alleged copyright
infringement claims (ER-169). The process, as recorded by Holbo, was as
follows:

1. Received notice of copyright infringement.

2.  Attempt to contact downstream customer (phone, with follow-
Up e-mail).

3.  If infringing material is still available after eight hours, attempt
to notify customer (phone, if possible, follow-up with e-mail).

4. Place modem in local modem's file on DHCP servers with a
disabled.modem config file with notations as to who/what/why
then reset the modem.

5.  When downstream customer calls back and assures the material
is not any longer available, comment out of local.modem's file
and reset modem.

(ER-169).

VI. SUMMARY OF ARGUMENT.

The trial court properly granted summary judgment because plaintiff failed
to establish the City had any policy which provided for the disconnection of
modems due to the content of websites. Plaintiff failed to sue any individual, and
instead chose to sue only the municipality. As a result, plaintiff was required to
show that there was evidence of a policy on the part of the City to violate First
Amendment rights. The City as a matter of law cannot be liable for Holbo's
actions even if improper, because there is no vicarious liability for an employee's
actions under 42 U.S.C. § 1983. Monell v. Dept. ofSoc. Servs., 436 U.S. 658,690,
98 S.Ct. 2018,56 L.Ed.2d 611 (1978). Plaintiff failed to offer any evidence
whatsoever that the disconnection of the modem resulting in the shutdown of its
website was related to any content on the website.

The claims plaintiff made at the trial court were that: (1) The disconnection
violated its procedural due process rights, a claim abandoned after defendant filed
its motion for summary judgment; (2) that the disconnection violated its First
Amendment rights because the decision to disconnect was based on "content" of
its website. (Complaint, ¶¶ 12-14, ER-10, 11).

In its response to defendant's motion for summary judgment, plaintiff for
the first time raised a "retaliation" claim under the First Amendment (ER-140).
Plaintiff also claimed that it had an action against the City under the Digital
Millennium Copyright Act (ER-49, 50).

None of the "prior restraint" arguments that plaintiff makes in its
Appellant's Brief, or its argument about the publishing of "digital pamphlets,"
were made in the court below, and this court should not consider those arguments
on appeal for the first time. Cornhusker Casualty Ins. Co. v. Kachman, 514 F .3d
977, 981 (9th Cir. 2008).

For the reasons set forth below, the district court's decision should be
affirmed.

VII. RESPONSE TO ARGUMENT. [1]

A. The District Court Correctly Held that Plaintiff Failed to Prove
Any Policy that Violated Its First Amendment Rights.

To bring a 42 U.S.C. § 1983 claim against a municipality alone, plaintiff
had to demonstrate that the execution of a government's official policy deprived
plaintiff of rights, privileges or immunities secured by the Constitution. Monell,
supra at 436 U.S. 694. There is no vicarious liability for an employee's action
under 42 U.S.C. § 1983. Monell, supra at 690 U.S.

Plaintiff offered no evidence before the trial court of any policy adopted by
the municipality regarding the disconnection of the website, much less a policy
that required disconnection of a modem due to the content of a website. As the
trial court correctly held, it is not enough for a Section 1983 plaintiff merely to
identify conduct attributable to the municipality .Instead, the plaintiff must also
demonstrate that through its deliberate conduct, the municipality was a "moving
force" behind the injury alleged. Board of County Com'rs. of Bryan County, Okla.
v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997).

In the Bryan County case, the plaintiff sued the sheriffs office for the
"wrongful" hiring ofa deputy, alleging that this one-time hiring decision resulted
in her own personal injuries after the deputy used excessive force during an arrest.
Id. at 1388.

The court rejected the plaintiffs argument that a single hiring decision,
which was legal, somehow amounted to a "policy" adopted by the County to
deprive plaintiff of any constitutional right, or amounted to "deliberate
indifference" to plaintiffs rights. Id. at 1394. The court held that "Congress did
not intend municipalities to be held liable unless deliberate action attributable to
the municipality directly caused a deprivation of federal rights." Id.

Here, the only reason Ho1bo disconnected the modem was because of the
copyright infringement claim, a legal act. This single legal act cannot, as a matter
of law, be the basis of liability under Section 1983.

The trial court stated that plaintiff had two possible avenues to establish a
claim against the City. First, plaintiff could show that the policy followed by
Holbo represented the City's "official policy" or, plaintiff could show that the City
of Ashland caused a violation of plaintiffs free speech rights by failing to train its
employees, which amounted to a "deliberate indifference" to plaintiffs rights.
City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197,103 L.Ed.2d 412 (1989).

Plaintiff established neither. There was no factual dispute below that the
only reason the modem was disconnected was because of the copyright
infringement claim made against plaintiff by Kathleen Parker. The only "policy"
ever referenced was Holbo's memory of the copyright infringement procedure,
which plaintiff complained Holbo did not follow. There was no evidence of any
adoption of any policy by the City to disconnect a modem due to website content.

Plaintiff offers no argument as to why the trial court erred in holding that as
a threshold matter, no official municipal policy to violate plaintiffs rights existed
in the first place. Since plaintiff fails to address this issue, and the undisputed
facts established no official policy mandating the violation of plaintiff s First
Amendment rights, the district court's decision should be affirmed for that reason
alone.

Further, the trial court correctly held that municipal liability can only attach
under a "failure to train" theory if there is a deliberate choice to follow a course of
action, selected from among various alternatives by City policymakers (ER-172).

Plaintiff offered no evidence that any of its constitutional rights were
violated because the City was deliberately indifferent to plaintiffs civil rights.
Plaintiffs reliance on Oviatt v. Pearce, 954 F.2d 1470 (9th Cir. 1992) is misplaced.
The decision in that case hinged on the fact that plaintiff had an established liberty
interest under the Fourteenth Amendment to not be incarcerated without a prompt
pretrial court appearance. Id. at 1474 75. Here, there is no evidence of any
"deliberate indifference" to any established constitutional right. Plaintiff fails to
explain to the court why violating copyright law is a constitutionally protected
right, so as to make Holbo's actions based on the infringement claim somehow
constitutionally impermissible.

B. No First Amendment Rights Were Ever Implicated in this Case.

As discussed above, there was no ordinance or rule enacted by the City
which imposes content-based restrictions on the internet service providers with
whom it contracts. Further, there was no ordinance or rule enacted or enforced by
the City which imposed content-based restrictions on internet access or website
content.

Plaintiff claimed that the act of disconnection violated the First Amendment
because the decision to disconnect was based on the website's content (Complaint,
¶ 12, ER-10).

The undisputed facts at the trial court were that the only reason the modem
was disconnected was due to the copyright infringement claim by Parker (ER-34).
Even assuming that the City's disconnection amounted to "state action" and the
plaintiffs website posting of Parker's doctored photograph without her permission
constituted "speech," there was no First Amendment violation because no action
was taken based on the content of the website.

In the absence of content-based restrictions, there can be no First
Amendment violation. Committee of Independent P-I v. The Hearst Corp., 704
F.2d 467,483 (9th Cir. 1983) (Anti-trust exemption in Newspaper Preservation Act
which did not affect the content of newspapers, but was an economic regulation,
did not invoke First Amendment protections); Ellwest Stereo Theaters, Inc. v.
Wenner, 681 F.2d 1243, 1246 (9th Cir. 1982) (ordinance requiring open booths in
picture arcade of theater which did not prohibit showing of films based on content
did not invoke First Amendment analysis).

The modem was disconnected by the City due to the copyright infringement
claim by Parker. Although plaintiff claimed below that the network was "silenced
in retaliation for its publication of political speech" plaintiff offered no admissible
facts supporting this assertion. Instead, plaintiff simply argued that its publication
of unpopular speech "must" have been a substantial motivating factor in the
decision to disconnect. Plaintiff offered no facts supporting this, or that the reason
that the modem was disconnected was not in fact due to the copyright
infringement claim, but was instead due to the content of plaintiffs website.

Specifically, plaintiff offered no admissible, factual evidence contradicting
the testimony of Holbo that the copyright infringement claim, not any website
content, led to the disconnect. There was no evidence of any ordinance requiring
that the modem be disconnected due to the content of the website, there was no
evidence that Holbo disconnected the website because of the content of the
website, and there was no evidence supporting a claim that Holbo's disconnection
of the modem was somehow a "pretextual" reason to disconnect the modem.

In short, plaintiff offered no factual evidence at the trial court level
supporting its claim that the real reason for the modem disconnection was due to
the content of the American Buddha website. Further, plaintiff failed to offer any
evidence of any ordinance, regulation, law or policy enacted by the City of
Ashland that allowed for the disconnection of modems based on the content of
what individual end-users might be posting on their websites. Plaintiff failed to
establish any facts supporting a claim that its First Amendment rights were
violated. The trial court correctly dismissed the case.

C.  A Fiber Network is Not A Public Forum.

Even assuming that the City's action was somehow a restriction on speech,
it was permissible under First Amendment "forum" analysis in any event.

The constitutionality of government restriction on free speech activity
depends on the nature of the forum and on the type of restriction. Perry Educ.
Ass 'n. v. Perry Local Educ. Ass 'n., 460 U.S. 37, 44-46, 103 S.Ct. 948,74 L.Ed.2d
794 ( 1983 ). There are three distinct categories of government "fora" recognized
for free speech activities: (1) Traditional public fora; (2) Designated public fora;
and (3) Non-public fora. Perry, supra, 460 U.S. at 45-47.

No case has yet held that the operation of a fiber network by a municipality
establishes a "public forum" for purposes of the First Amendment. However, as a
matter of law, a governmental entity does not create a public forum when it
establishes an internet connection, even if that internet connection is accessed in a
public building, and open for use by the public. United States v. American Library
Association, Inc., 539 U.S. 194,205, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003)
(internet access in libraries is neither re a "traditional" nor a "designated" public
forum); Putnam Pit, Inc. v. City of Cookeville, Tennessee, 221 F.3d 834,843 (6th
Cir.2000). (City's website, which established links to other websites, was a non
public forum under the First Amendment). In this case, the City of Ashland
simply provides access to its fiber network to internet service providers, who in
turn sell access to the internet to end-users like plaintiff. Since this is steps
removed from providing internet access at a public building for public use, such as
a library, or establishing a website specifically controlled by the City, the fiber
network is a non-public forum (ifit is a forum at all) for purposes of the First
Amendment.

In a non-public forum, the government can restrict free speech, so long as
any restrictions are reasonable in light of the functions served by the forum and are
viewpoint neutral. Perry, supra, 460 U.S. at 49. In reviewing the reasonableness
of any restrictions, a court does not impose its view regarding the ideal use of the
forum. The government's decision to restrict access need not be the most
reasonable, or the only reasonable, limitation. Cornelius v. The NAACP Legal
Defense and Educational Fund, Inc., 473 U.S. 788,808, 105 S.Ct. 3439,87
L.Ed.2d 567 (1985). A non-public forum can restrict speech based on content, so
long as the restriction is viewpoint neutral. Rosenberger v. Rector and Visitors of
the Univ. of Virginia, 515 U.S. 819,829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995)
(a non-public forum may prohibit speech on certain subjects, but may not prohibit
the expression of particular views about such subjects).

Further non-public forums can totally ban certain speech activities.
Arkansas Educational Television Comm. v. Forbes, 523 U.S. 666,682, 118 S.Ct.
1633, 140 L.Ed.2d 875 (1998) (television station could exercise broad discretion
and exclude certain candidates from televised debates based on a determination by
station executives so long as exclusion was not based on speakers' viewpoint);
Hazelwood v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562,98 L.Ed.2d 592 (1998)
(high school newspaper non-pub1ic forum; control of published materials by
school officials was reasonable); Greer v. Spock, 424 U.S. 828,840, 96 S.Ct.
1211,47 L.Ed.2d 505 (1976) (military base is a non-public forum, military
commander had discretion to disapprove of literature distributed on military base
due to content); Cogswell v. City of Seattle, 347 F.3d 809,818 (9th Cir. 2003) (City
restriction of candidates' statements and voters' pamphlets was constitutional;
voter pamphlet was a non-public forum, and the City was not required to allow
free exchange of ideas). Under these cases, the only relevant inquiry is whether
the exclusion of the speech is based on the speaker's viewpoint on a subject, not
the subject itself.

In this case, the sole reason that the modem was disconnected was because
of a copyright infringement claim. The modem was not turned off because of the
content of plaintiff s website. Plaintiff points to no evidence offered at the trial
court that the modem was disconnected to prevent it from engaging in "digital
pamphleteering." Holbo took action because of a claim of violation of federal
copyright law.

Plaintiff offers no law supporting any claim that a violation of copyright law
is somehow protected speech under the First Amendment, and that any "policy"
about how to deal with a copyright infringement claim is either unreasonable, or
viewpoint based. Even if the court assumes that the City created a "forum" by
owning a fiber network and allowing internet service providers to contract for its
use, a disconnection due to a copyright infringement claim is reasonable. It was
based solely on a claim of violation of federal law and nothing else. No First
Amendment violation occurred, even if this court goes so far as to determine that
the fiber network is a "forum", and the actions of Holbo constituted a "policy".

Plaintiffs arguments regarding "strict scrutiny," and "compelling interest"
analysis only apply to public forums. Plaintiff fails to explain to this court why it
should reject the analysis of the United States Supreme Court in American Library
Assoc., supra, which held that an internet connection provided at a public library
was not a public forum. Here, the City simply provides the fiber network; internet
service providers provide the actual access. All of the cases relied on by plaintiff
have to do with actual ordinances or statutes, enacted by governmental entities
directly affecting the use of a public forum, or viewpoint based limitations on
speech. None of them are applicable to this case. [2]

A non-public forum need not show any "compelling state interest;" it need
only show that a restriction is reasonable in light of the purpose of the forum.
United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990)
( complete ban on distribution of political literature by Post Office deemed
reasonable under non-public forum analysis); Currier v. Potter, 379 F.3d 716,730
(9th Cir. 2004) cert. den. 125 S.Ct. 2935 (2005) (when a forum is non-public, court
reviews government restrictions under reasonableness standards; the governments
decision to restrict access to a non-public forum need only be reasonable; it need
not be the most reasonable or the only reasonable limitation). To the extent that
Holbo's actions constituted a "policy", it was reasonable because there are no First
Amendment rights associated with copyright infringement, and plaintiff points to
none.

VIII. CONCLUSION

For the above reasons, the district court's decision dismissing plaintiffs
claims on summary judgment should be affirmed.

Respectfully submitted this 12th day of March, 2008.

HOFFMAN HART & WAGNER LLP

By Karen O'Kasey, OSB No 87069
Of Attorneys for Appelee

STATEMENT OF RELATED CASES

Pursuant to Circuit Rule 28.2-6, Defendant-Appellee is not aware of any
related cases pending in this court.

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

I, the undersigned attorney for Appellee, hereby certify as follows:

1. This Brief of Appellee complies with the type-volume limitation of
Fed. R. App. P. 32(a)(7)(B) because it contains 3843 words, excluding the parts of
the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii); and

2. Brief of Appellee complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)
because the brief has been prepared in a proportionally spaced typeface using
WordPerfect 12, in 14 point typeface, Times New Roman font.

DATED: March 12th, 2008.

Karen O'Kasey
Attorney for Defendant Appellee

CERTIFICATE OF FILING AND SERVICE BY FIRST-CLASS MAIL

I hereby certify that on the 12th day of March, 2008, I filed the foregoing
STATEMENT OF RELATED CASES by mailing the original and the appropriate
number of copies by first-class mail to the following address, via U.S. Mail,
postage prepaid:

Clerk
United States Court of Appeals
PO Box 193939
San Francisco, CA 94119-3939

I also certify that on the 12th day of March, 2008, I served the foregoing
STATEMENT OF RELATED CASES on the following person at the following
address:

Charles Carreon
Online Media Law, PLLC
2165 S. Avenida Planeta
Tucson, AZ 85710

by sending to him by U.S. Mail, postage prepaid, two true and correct copies
thereof, placed in a sealed envelope addressed to him at the address set forth
above.

Karen O'Kasey

CERTIFICATE OF FILING BY FIRST-CLASS MAIL

I hereby certify that on the 12th day of March, 2008, I filed the foregoing
BRIEF OF APPELLEE by mailing the original and the appropriate number of
copies by first-class mail to the following address:

Clerk
United States Court of Appeals
PO Box 193939
San Francisco, CA 94119-3939

by depositing it in the United States Post Office with postage paid. I also hereby
certify that the attached is a true copy of the original document, as so filed.

Karen O'Kasey
Attorney for Defendant Appellee

CERTIFICATE OF SERVICE

I hereby certify that on the 12th day of March, 2008, I served the foregoing
BRIEF OF APPELLEE on the following person at the following addresses:

Charles Carreon
Online Media Law, PLLC
2165 S. Avenida Planeta
Tucson, AZ 85 710
Via First-Class Mail
Postage prepaid

by sending him two true and correct copies thereof, placed in a sealed envelope
addressed as set forth above, and deposited in the U.S. Post Office at Portland,
Oregon on said day.

Karen O'Kasey
Attorney for Defendant Appellee

_______________

1. Since the majority of the arguments that Appellant makes in its opening
brief were not made at the trial court level, Appellee will address the correctness
of the district court's decision based on the fact that plaintiff did not prove any
policy; and will then address why the disconnection of the modem did not violate
plaintiff's First Amendment rights.

2. Bantam Books, Inc. v. Sullivan, 372 U.S. 58,83 S.Ct. 631,9 L.Ed.2d 584
(1963) (Law creating commission that labeled certain books "obscene" without a
notice, hearing or challenge provision unconstitutional); Dombrowski v. Pfister,
380 U.S. 479, 85 S.Ct. 1116,14 L.Ed.2d 22 (1965); (Subversive Activities and
Communist Control Law found void for vagueness); Saia v. People of State of
New York, 334 U.S. 558,68 S. Ct. 1148, 92 L.Ed.2d 1574 (1948); (Ordinance
giving complete discretion to police chief about whether applicant could use
loudspeaker on unconstitutional prior restraint on speech under the First
Amendment analysis); Arizona Life Coalition, Inc. v. Stanton, __F .3d __(9th
Cir. 2008) (License plate is limited public forum, decision to deny certain license
plate message held to be viewpoint discrimination against anti-abortion group).