*405 I. Preliminary Statement
This case challenges an act of Congress that
makes the use of filtering software by public libraries a condition of the
receipt of federal funding. The Internet, as is well known, is a vast,
interactive medium based on a decentralized network of computers around the
world. Its most familiar feature is the
World Wide Web (the "Web"), a network of computers known as servers
that provide content to users. The
Internet provides easy access to anyone who wishes to provide or distribute
information to a worldwide audience; it
is used by more than 143 million Americans.
Indeed, much of the world's knowledge accumulated over centuries is
available to Internet users almost instantly. Approximately 10% of the
Americans who use the Internet access it at public libraries. And approximately 95% of all public
libraries in the United States provide public access to the Internet.
While the beneficial effect of the Internet
in expanding the amount of information available to its users is self-evident,
its low entry barriers have also led to a perverse result--facilitation of the
widespread dissemination of hardcore pornography within the easy reach not only
of adults *406 who have every right to access it (so long as it is not
legally obscene or child pornography), but also of children and adolescents to
whom it may be quite harmful. The
volume of pornography on the Internet is huge, and the record before us
demonstrates that public library patrons of all ages, many from ages 11 to 15, have regularly sought to access it in
public library settings. There are more
than 100,000 pornographic Web sites that can be accessed for free and without
providing any registration information, and tens of thousands of Web sites
contain child pornography.
Libraries have reacted to this situation by
utilizing a number of means designed to insure that patrons avoid illegal (and
unwanted) content while also enabling patrons to find the content they
desire. Some libraries have trained
patrons in how to use the Internet while avoiding illegal content, or have
directed their patrons to "preferred" Web sites that librarians have
reviewed. Other libraries have utilized such devices as recessing the computer
monitors, installing privacy screens, and monitoring implemented by a "tap
on the shoulder" of patrons perceived to be offending library policy. Still others, viewing the foregoing
approaches as inadequate or uncomfortable (some librarians do not wish to
confront patrons), have purchased commercially available software that blocks
certain categories of material deemed by the library board as unsuitable for
use in their facilities. Indeed, 7% of
American public libraries use blocking software for adults. Although such programs are somewhat
effective in blocking large quantities of pornography, they are blunt
instruments that not only "underblock," i.e., fail to block access to
substantial amounts of content that the library boards wish to exclude, but
also, central to this litigation, "overblock," i.e., block access to large quantities of material that library
boards do not wish to exclude and that is constitutionally protected.
Most of the libraries that use filtering
software seek to block sexually explicit speech. While most libraries include in their physical collection copies
of volumes such as The Joy of Sex and The Joy of Gay Sex, which
contain quite explicit photographs and descriptions, filtering software blocks
large quantities of other, comparable information about health and sexuality
that adults and teenagers seek on the Web. One teenager testified that the
Internet access in a public library was the only venue in which she could
obtain information important to her about her own sexuality. Another library patron witness described using
the Internet to research breast cancer and reconstructive surgery for his
mother who had breast surgery. Even
though some filtering programs contain exceptions for health and education, the
exceptions do not solve the problem of overblocking constitutionally protected
material. Moreover, as we explain below, the filtering software on which the
parties presented evidence in this case overblocks not only information
relating to health and sexuality that might be mistaken for pornography or
erotica, but also vast numbers of Web pages and sites that could not even
arguably be construed as harmful or inappropriate for adults or minors.
The Congress, sharing the concerns of many
library boards, enacted the Children's Internet Protection Act
("CIPA"), Pub.L.
No. 106-554, which makes the use of filters by a public library a
condition of its receipt of two kinds of subsidies that are important (or even
critical) to the budgets of many public libraries--grants under the Library
Services and Technology Act, 20
U.S.C. § 9101 et seq.
("LSTA"), and so-called "E-rate discounts" for Internet
access and support under the Telecommunications Act, 47
U.S.C. § 254. LSTA *407 grant funds
are awarded, inter alia, in order to:
(1) assist libraries in accessing information through electronic
networks, and (2) provide targeted library and information services to persons
having difficulty using a library and to underserved and rural communities,
including children from families with incomes below the poverty line. E-rate
discounts serve the similar purpose of extending Internet access to schools and
libraries in low-income communities. CIPA requires that libraries, in order to
receive LSTA funds or E-rate discounts, certify that they are using a
"technology protection measure" that prevents patrons from accessing
"visual depictions" that are "obscene," "child
pornography," or in the case of minors, "harmful to minors." 20
U.S.C. § 9134(f)(1)(A) (LSTA); 47
U.S.C. § 254(h)(6)(B) & (C) (E-rate).
The plaintiffs, a group of libraries, library
associations, library patrons, and Web site publishers, brought this suit
against the United States and others alleging that CIPA is facially
unconstitutional because: (1) it
induces public libraries to violate their patrons' First Amendment rights
contrary to the requirements of South
Dakota v. Dole,
483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d
171 (1987);
and (2) it requires libraries to relinquish their First Amendment rights
as a condition on the receipt of federal funds and is therefore impermissible
under the doctrine of unconstitutional conditions. In arguing that CIPA will induce public libraries to violate the
First Amendment, the plaintiffs contend that given the limits of the filtering
technology, CIPA's conditions effectively require libraries to impose
content-based restrictions on their patrons' access to constitutionally
protected speech. According to the plaintiffs, these content-based restrictions
are subject to strict scrutiny under public forum doctrine, see Rosenberger
v. Rector & Visitors of Univ. of Va.,
515 U.S. 819, 837, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), and are therefore permissible only if they are narrowly
tailored to further a compelling state interest and no less restrictive
alternatives would further that interest, see Reno
v. ACLU,
521 U.S. 844, 874, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). [FN1] The government responds that CIPA will not
induce public libraries to violate the First Amendment, since it is possible
for at least some public libraries to constitutionally comply with CIPA's
conditions. Even if some libraries' use
of filters might violate the First Amendment, the government submits that CIPA
can be facially invalidated only if it is impossible for any public library to
comply with its conditions without violating the First Amendment.
FN1. Plaintiffs advance three other alternative, independent
grounds for holding CIPA facially invalid.
First, they submit that even if CIPA will not induce public libraries to
violate the First Amendment, CIPA nonetheless imposes an unconstitutional
condition on public libraries by requiring them to relinquish their own First
Amendment rights to provide unfiltered Internet access as a condition on their
receipt of federal funds. See infra
n. 36. Second, plaintiffs contend that
CIPA is facially invalid because it effects an impermissible prior restraint on
speech by granting filtering companies and library staff unfettered discretion
to suppress speech before it has been received by library patrons and before it
has been subject to a judicial determination that it is unprotected under the
First Amendment. See Southeastern
Promotions, Ltd. v. Conrad,
420 U.S. 546, 558, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). Finally,
plaintiffs submit that CIPA is unconstitutionally vague. See City
of Chicago v. Morales,
527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999).
Pursuant to CIPA, a three-judge Court was
convened to try the issues. Pub.L.
No. 106-554.
Following an intensive period of discovery on an expedited schedule *408
to allow public libraries to know whether they need to certify compliance with
CIPA by July 1, 2002, to receive subsidies for the upcoming year, the Court
conducted an eight-day trial at which we heard 20 witnesses, and received numerous depositions,
stipulations and documents. The
principal focus of the trial was on the capacity of currently available
filtering software. The plaintiffs
adduced substantial evidence not only that filtering programs bar access to a
substantial amount of speech on the Internet that is clearly constitutionally
protected for adults and minors, but also that these programs are intrinsically
unable to block only illegal Internet content while simultaneously allowing
access to all protected speech.
As our extensive findings of fact reflect,
the plaintiffs demonstrated that thousands of Web pages containing protected
speech are wrongly blocked by the four leading filtering programs, and these
pages represent only a fraction of Web pages wrongly blocked by the
programs. The plaintiffs' evidence
explained that the problems faced by the manufacturers and vendors of filtering
software are legion. The Web is
extremely dynamic, with an estimated 1.5 million new pages added every day and
the contents of existing Web pages changing very rapidly. The category lists maintained by the
blocking programs are considered to be proprietary information, and hence are
unavailable to customers or the general public for review, so that public
libraries that select categories when implementing filtering software do not
really know what they are blocking.
There are many reasons why filtering software
suffers from extensive over- and underblocking, which we will explain below in
great detail. They center on the
limitations on filtering companies' ability to: (1) accurately collect Web pages
that potentially fall into a blocked category (e.g., pornography); (2) review and categorize Web pages that
they have collected; and (3) engage in
regular re-review of Web pages that they have previously reviewed. These failures spring from constraints on
the technology of automated classification systems, and the limitations
inherent in human review, including error, misjudgment, and scarce resources,
which we describe in detail infra at 58- 74. One failure of critical importance is that the automated systems
that filtering companies use to collect Web pages for classification are able
to search only text, not images. This
is crippling to filtering companies' ability to collect pages containing
"visual depictions" that are obscene, child pornography, or harmful
to minors, as CIPA requires. As will
appear, we find that it is currently impossible, given the Internet's size,
rate of growth, rate of change, and architecture, and given the state of the
art of automated classification systems, to develop a filter that neither
underblocks nor overblocks a substantial amount of speech.
The government, while acknowledging that the
filtering software is imperfect, maintains that it is nonetheless quite
effective, and that it successfully blocks the vast majority of the Web pages
that meet filtering companies' category definitions (e.g., pornography). The government contends that no more is
required. In its view, so long as the
filtering software selected by the libraries screens out the bulk of the Web
pages proscribed by CIPA, the libraries have
made a reasonable choice which suffices, under the applicable legal principles,
to pass constitutional muster in the context of a facial challenge.Central to
the government's position is the analogy it advances between Internet filtering
and the initial decision of a library to determine which materials to purchase
for its print collection. Public
libraries have finite budgets and must make choices as to whether to purchase,
for example, books *409 on gardening or books on golf. Such content-based decisions, even the
plaintiffs concede, are subject to rational basis review and not a stricter
form of First Amendment scrutiny. In
the government's view, the fact that the Internet reverses the acquisition
process and requires the libraries to, in effect, purchase the entire Internet,
some of which (e.g., hardcore pornography) it does not want, should not mean
that it is chargeable with censorship when it filters out offending material.
The legal context in which this extensive
factual record is set is complex, implicating a number of constitutional
doctrines, including the constitutional limitations on Congress's spending
clause power, the unconstitutional conditions doctrine, and subsidiary to these
issues, the First Amendment doctrines of prior restraint, vagueness, and
overbreadth. There are a number of
potential entry points into the analysis, but the most logical is the spending
clause jurisprudence in which the seminal case is South
Dakota v. Dole,
483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987). Dole outlines four
categories of constraints on Congress's exercise of its power under the
Spending Clause, but the only Dole condition disputed here is the fourth and last, i.e.,
whether CIPA requires libraries that receive LSTA funds or E-rate discounts to
violate the constitutional rights of their patrons. As will appear, the question is not a simple one, and turns on
the level of scrutiny applicable to a public library's content-based
restrictions on patrons' Internet access.
Whether such restrictions are subject to strict scrutiny, as plaintiffs
contend, or only rational basis review, as the government contends, depends on
public forum doctrine.
The government argues that, in providing
Internet access, public libraries do not create a public forum, since public
libraries may reserve the right to exclude certain speakers from availing
themselves of the forum. Accordingly,
the government contends that public libraries' restrictions on patrons'
Internet access are subject only to rational basis review.
Plaintiffs respond that the government's
ability to restrict speech on its own property, as in the case of restrictions
on Internet access in public libraries, is not unlimited, and that the more
widely the state facilitates the dissemination of private speech in a given
forum, the more vulnerable the state's decision is to restrict access to speech
in that forum. We agree with the
plaintiffs that public libraries' content-based restrictions on their patrons'
Internet access are subject to strict scrutiny. In providing even filtered
Internet access, public libraries create a public forum open to any speaker around
the world to communicate with library patrons via the Internet on a virtually
unlimited number of topics. Where the
state provides access to a "vast democratic forum[ ]," Reno
v. ACLU,
521 U.S. 844, 868, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), open to any member of the public to speak on subjects
"as diverse as human thought," id.
at 870, 117 S.Ct. 2329 (internal quotation marks
and citation omitted), the state's decision selectively to exclude from the
forum speech whose content the state disfavors is subject to strict scrutiny,
as such exclusions risk distorting the marketplace of ideas that the state has
facilitated. Application of strict
scrutiny finds further support in the extent to which public libraries'
provision of Internet access uniquely promotes First Amendment values in a
manner analogous to traditional public fora such as streets, sidewalks, and
parks, in which content-based restrictions are always subject to strict
scrutiny.
*410 Under strict scrutiny, a public
library's use of filtering software is permissible only if it is narrowly
tailored to further a compelling government interest and no less restrictive
alternative would serve that interest.
We acknowledge that use of filtering software furthers public libraries'
legitimate interests in preventing patrons from accessing visual depictions of
obscenity, child pornography, or in the case of minors, material harmful to
minors. Moreover, use of filters also
helps prevent patrons from being unwillingly
exposed to patently offensive, sexually explicit content on the Internet.
We are sympathetic to the position of the
government, believing that it would be desirable if there were a means to
ensure that public library patrons could share in the informational bonanza of
the Internet while being insulated from materials that meet CIPA's definitions,
that is, visual depictions that are obscene, child pornography, or in the case
of minors, harmful to minors. Unfortunately this outcome, devoutly to be
wished, is not available in this less than best of all possible worlds. No category definition used by the blocking
programs is identical to the legal definitions of obscenity, child pornography,
or material harmful to minors, and, at all events, filtering programs fail to
block access to a substantial amount of content on the Internet that falls into
the categories defined by CIPA. As will appear, we credit the testimony of
plaintiffs' expert Dr. Geoffrey Nunberg that the blocking software is (at least
for the foreseeable future) incapable of effectively blocking the majority of
materials in the categories defined by CIPA without overblocking a substantial
amount of materials. Nunberg's analysis
was supported by extensive record evidence.
As noted above, this inability to prevent both substantial amounts of
underblocking and overblocking stems from several sources, including
limitations on the technology that software filtering companies use to gather
and review Web pages, limitations on resources
for human review of Web pages, and the necessary error that results from human
review processes.
Because the filtering software mandated by
CIPA will block access to substantial amounts of constitutionally protected
speech whose suppression serves no legitimate government interest, we are
persuaded that a public library's use of software filters is not narrowly tailored
to further any of these interests.
Moreover, less restrictive alternatives exist that further the
government's legitimate interest in preventing the dissemination of obscenity,
child pornography, and material harmful to minors, and in preventing patrons
from being unwillingly exposed to patently offensive, sexually explicit
content. To prevent patrons from
accessing visual depictions that are obscene and child pornography, public
libraries may enforce Internet use policies that make clear to patrons that the
library's Internet terminals may not be used to access illegal speech. Libraries may then impose penalties on
patrons who violate these policies, ranging from a warning to notification of
law enforcement, in the appropriate case.
Less restrictive alternatives to filtering that further libraries'
interest in preventing minors from exposure to visual depictions that are
harmful to minors include requiring parental consent to or presence during
unfiltered access, or restricting minors' unfiltered access to terminals within
view of library staff. Finally,
optional filtering, privacy screens, recessed monitors, and placement of
unfiltered Internet terminals outside of
sight-lines provide less restrictive alternatives for libraries to prevent
patrons from being unwillingly exposed to sexually explicit content on the
Internet.
*411 In an effort to avoid the
potentially fatal legal implications of the overblocking problem, the
government falls back on the ability of the libraries, under CIPA's disabling
provisions, see CIPA § 1712
(codified at 20
U.S.C. § 9134(f)(3)), CIPA § 1721(b)
(codified at 47
U.S.C. § 254(h)(6)(D)), to unblock a site that is patently proper yet improperly
blocked. The evidence reflects that
libraries can and do unblock the filters when a patron so requests. But it also reflects that requiring library
patrons to ask for a Web site to be unblocked will deter many patrons because
they are embarrassed, or desire to protect their privacy or remain anonymous. Moreover, the unblocking may take days, and
may be unavailable, especially in branch libraries, which are often less well
staffed than main libraries.
Accordingly, CIPA's disabling provisions do not cure the constitutional
deficiencies in public libraries' use of Internet filters.
Under these circumstances we are constrained
to conclude that the library plaintiffs must prevail in their contention that
CIPA requires them to violate the First Amendment rights of their patrons, and
accordingly is facially invalid, even under the standard urged on us by the government,
which would permit us to facially invalidate CIPA only if it is impossible for
a single public library to comply with
CIPA's conditions without violating the First Amendment. In view of the limitations inherent in the
filtering technology mandated by CIPA, any public library that adheres to
CIPA's conditions will necessarily restrict patrons' access to a substantial
amount of protected speech, in violation of the First Amendment. Given this conclusion, we need not reach
plaintiffs' arguments that CIPA effects a prior restraint on speech and is
unconstitutionally vague. Nor do we
decide their cognate unconstitutional conditions theory, though for reasons
explained infra at note 36, we discuss the issues raised by that claim
at some length.
For these reasons, we will enter an Order
declaring Sections 1712(a)(2) and 1721(b) of the Children's Internet Protection
Act, codified at 20
U.S.C. § 9134(f) and 47
U.S.C. § 254(h)(6), respectively, to be facially invalid under the First
Amendment and permanently enjoining the defendants from enforcing those
provisions.
II. Findings of Fact
A. Statutory Framework
1. Nature and Operation of the E-rate and LSTA Programs
In the Telecommunications Act of 1996
("1996 Act"), Congress directed the Federal Communications Commission
("FCC") to take the steps necessary to establish a system of support
mechanisms to ensure the delivery of affordable telecommunications service to
all Americans. This system, referred to
as "universal service," is
codified in section
254 of the Communications Act of 1934, as amended
by the 1996 Act. See 47
U.S.C. § 254. Congress specified several
groups as beneficiaries of the universal service support mechanism, including
consumers in high-cost areas, low-income consumers, schools and libraries, and
rural health care providers. See
47
U.S.C. § 254(h)(1). The extension of
universal service to schools and libraries in section
254(h) is commonly referred to as the Schools and
Libraries Program, or "E-rate" Program.
Under the E-rate Program, "[a]ll
telecommunications carriers serving a geographic area shall, upon a bona fide
request for any of its services that are within the definition of universal
service ..., provide such services to elementary schools, secondary schools,
and libraries for educational purposes at rates less than the amounts charged
for similar services to *412 other parties." 47
U.S.C. § 254(h)(1)(B). Under FCC
regulations, providers of "interstate telecommunications" (with
certain exceptions, see 47
C.F.R. § 54.706(d)), must contribute a portion of their revenue for
disbursement among eligible carriers that are providing services to those
groups or areas specified by Congress in section
254. To
be eligible for the discounts, a library must:
(1) be eligible for assistance from a State library administrative
agency under the Library Services and Technology Act, see infra; (2) be funded as an independent entity,
completely separate from any schools;
and (3) not be operating as a for-profit business. See 47
C.F.R. § 54.501(c). Discounts on services for eligible libraries
are set as a percentage of the pre-discount price, and range from 20% to 90%,
depending on a library's level of economic disadvantage and its location in an
urban or rural area. See 47
C.F.R. § 54.505. Currently, a library's level of economic disadvantage is
based on the percentage of students eligible for the national school lunch
program in the school district in which the library is located.
The Library Services and Technology Act
("LSTA"), Subchapter II of the Museum and Library Services Act, 20
U.S.C. § 9101 et seq., was enacted by Congress in 1996 as part of
the Omnibus Consolidated Appropriations Act of 1997,
Pub.L. No. 104-208. The LSTA establishes three grant programs to achieve the goal of
improving library services across the nation.
Under the Grants to States Program, LSTA grant funds are awarded, inter
alia, in order to assist libraries in accessing information through electronic
networks and pay for the costs of acquiring or sharing computer systems and
telecommunications technologies. See
20
U.S.C. § 9141(a). Through the
Grants to States program, LSTA funds have been used to acquire and pay costs
associated with Internet-accessible computers located in libraries.
2. CIPA
The Children's Internet Protection Act
("CIPA") was enacted as part of the Consolidated Appropriations Act
of 2001, which consolidated and enacted several appropriations bills, including
the Miscellaneous Appropriations Act, of
which CIPA was a part. See Pub.L.
No. 106-554.
CIPA addresses three distinct types of federal funding programs: (1) aid to elementary and secondary schools
pursuant to Title III of the Elementary and Secondary Education Act of 1965, see
CIPA § 1711 (amending Title
20 to add §
3601); (2) LSTA grants to states for support of libraries, see
CIPA § 1712 (amending the Museum and
Library Services Act, 20
U.S.C. § 9134); and (3)
discounts under the E-rate program, see CIPA § 1721(a) & (b) (both amending the Communications Act of 1934, 47
U.S.C. § 254(h)). Only sections
1712 and 1721(b) of CIPA, which apply to libraries, are at issue in this case.
As explained in more detail below, CIPA
requires libraries that participate in the LSTA and E-rate programs to certify
that they are using software filters on their computers to protect against
visual depictions that are obscene, child pornography, or in the case of
minors, harmful to minors. CIPA permits
library officials to disable the filters for patrons for bona fide research or
other lawful purposes, but disabling is not permitted for minor patrons if the
library receives E-rate discounts.
a. CIPA's Amendments to the E-rate Program
Section 1721(b) of CIPA imposes conditions on
a library's participation in the E-rate program. A library "having one or more computers with Internet access
may not receive services at discount rates," CIPA § 1721(b) (codified at 47
U.S.C. § 254(h)(6)(A)(i)), unless the library certifies *413 that it is "enforcing a policy of Internet safety
that includes the operation of a technology protection measure with respect to
any of its computers with Internet access that protects against access through
such computers to visual depictions that are--(I) obscene; (II) child pornography; or (III) harmful to minors," and that
it is "enforcing the operation of such technology protection measure
during any use of such computers by minors." CIPA § 1721(b) (codified
at 47
U.S.C. § 254(h)(6)(B)). [FN2] CIPA defines a "technology protection
measure" as "a specific technology that blocks or filters access to
visual depictions that are obscene, ... child pornography, ... or harmful to
minors." CIPA § 1703(b)(1) (codified at 47
U.S.C. § 254(h)(7)(I)).
FN2. CIPA defines
"[m]inor" as "any individual who has not attained the age of 17
years." CIPA § 1721(c) (codified at 47
U.S.C. § 254(h)(7)(D)). CIPA further
provides that "[o]bscene" has the meaning given in 18
U.S.C. § 1460, and "child pornography" has the meaning given
in 18
U.S.C. § 2256. CIPA § 1721(c) (codified at 47
U.S.C. § 254(h)(7)(E) & (F)). CIPA defines
material that is "harmful to minors" as:
any picture, image, graphic image file, or other visual
depiction that--(i) taken as a whole and with respect to minors, appeals to a
prurient interest in nudity, sex, or excretion; (ii) depicts, describes, or represents, in a patently offensive
way with respect to what is suitable for minors, an actual or simulated sexual act or sexual
contact, actual or simulated normal or perverted sexual acts, or a lewd
exhibition of the genitals; and (iii) taken as a whole, lacks serious literary,
artistic, political, or scientific value as to minors.
CIPA § 1721(c)
(codified at 47
U.S.C. § 254(h)(7)(G)).
CIPA prohibits federal interference in local determinations
regarding what Internet content is appropriate for minors:
A determination regarding what matter is appropriate for
minors shall be made by the school board, local educational agency, library or
other authority responsible for making the determination. No agency or instrumentality of the United
States Government may--(A) establish criteria for making such determination; (B) review the determination made by the
certifying [entity] ...; or (C)
consider the criteria employed by the certifying [entity] ... in the
administration of subsection (h)(1)(B).
CIPA § 1732
(codified at 47
U.S.C. § 254(l
)(2)).
To receive E-rate discounts, a library must
also certify that filtering software is in operation during adult use of the
Internet. More specifically, with
respect to adults, a library must certify that it is "enforcing a policy
of Internet safety that includes the operation of a technology protection
measure with respect to any of its computers with Internet access that protects
against access through such computers to
visual depictions that are--(I) obscene;
or (II) child pornography," and that it is "enforcing the
operation of such technology protection measure during any use of such
computers." CIPA § 1721(b) (codified at 47
U.S.C. § 254(h)(6)(C)). Interpreting the
statutory terms "any use," the FCC has concluded that "CIPA
makes no distinction between computers used only by staff and those accessible
to the public." In re Federal
State Joint Board on Universal Service:
Children's Internet Protection Act, CC Docket No. 96-45, Report and
Order, FCC 01- 120, ¶ 30 (Apr. 5,
2001).
With respect to libraries receiving E-rate
discounts, CIPA further specifies that "[a]n administrator, supervisor, or
other person authorized by the certifying authority ... may disable the
technology protection measure concerned, during use by an adult, to enable
access for bona fide research or other lawful purpose." CIPA §
1721(b) (codified at 47
U.S.C. § 254(h)(6)(D)).
b. CIPA's Amendments to the LSTA Program
Section 1712 of CIPA amends the Museum and
Library Services Act (*41420
U.S.C. § 9134(f)) to provide that no funds
made available under the Act "may be used to purchase computers used to
access the Internet, or to pay for direct costs associated with accessing the
Internet," unless such library "has in place" and is enforcing
"a policy of Internet safety that includes the operation of a technology protection measure
with respect to any of its computers with Internet access that protects against
access through such computers to visual depictions" that are
"obscene" or "child pornography," and, when the computers
are in use by minors, also protects against access to visual depictions that
are "harmful to minors." CIPA
§ 1712 (codified at 20
U.S.C. § 9134(f)(1)). Section 1712
contains definitions of "technology protection measure,"
"obscene," "child pornography," and "harmful to
minors," that are substantially similar to those found in the provisions
governing the E-rate program. CIPA
§ 1712 (codified at 20
U.S.C. § 9134(f)(7)); see also
supra note 2.
As under the E-rate program, "an
administrator, supervisor or other authority may disable a technology
protection measure ... to enable access for bona fide research or other lawful
purposes." CIPA § 1712 (codified at 20
U.S.C. § 9134(f)(3)). Whereas CIPA's
amendments to the E-rate program permit disabling for bona fide research or
other lawful purposes only during adult use, the LSTA provision permits
disabling for both adults and minors.
B. Identity of the Plaintiffs
1. Library and Library Association Plaintiffs
Plaintiffs American Library Association,
Alaska Library Association, California Library Association, Connecticut Library
Association, Freedom to Read Foundation, Maine Library Association, New England
Library Association, New York Library
Association, and Wisconsin Library Association are non-profit organizations
whose members include public libraries that receive either E-rate discounts or
LSTA funds for the provision of Internet access. Because it is a prerequisite to associational standing, we note
that the interests that these organizations seek to protect in this litigation
are central to their raison d'être.
Plaintiffs Fort Vancouver Regional Library
District, in southwest Washington state;
Multnomah County Public Library, in Multnomah County, Oregon; Norfolk Public Library System, in Norfolk,
Virginia; Santa Cruz Public Library
Joint Powers Authority, in Santa Cruz, California; South Central Library System ("SCLS"), centered in
Madison, Wisconsin; and the Westchester
Library System, in Westchester County, New York, are public library systems
with branch offices in their respective localities that provide Internet access
to their patrons.
The Fort Vancouver Regional Library District,
for over three years from 1999-2001, received $135,000 in LSTA grants and
$19,500 in E-rate discounts for Internet access. The Multnomah County Public Library received $70,000 in E- rate
discounts for Internet access this year, and has applied for $100,000 in E-rate
discounts for the upcoming year. The
Norfolk Public Library System received $90,000 in E-rate discounts for Internet
access this year, and has received a $200,000 LSTA grant to put computer labs
in eight of its libraries. The Santa Cruz Public Library Joint Powers Authority
received $20,560 in E-rate discounts for
Internet access in 2001-02. The SCLS
received between $3,000 and $5,000 this year in E-rate discounts for Internet
access.
The Fort Vancouver Regional Library District
Board is a public board whose members are appointed by elected county
commissioners. The Multnomah County
Library is a county department, whose *415 board is appointed by the
county chair and confirmed by the other commissioners. The SCLS is an aggregation of 51
independently governed statutory member public libraries, whose relationship to
SCLS is defined by state law. The
governing body of the SCLS is the Library Board of Trustees, which consists of
20 members nominated by county executives and ratified by county boards of
supervisors.
2. Patron and Patron Association Plaintiffs
Plaintiffs Association of Community
Organizations for Reform Now, Friends of the Philadelphia City Institute
Library, and the Pennsylvania Alliance for Democracy are nonprofit
organizations whose members include individuals who access the Internet at
public libraries that receive E-rate discounts or LSTA funds for the provision
of public Internet access. We note for
the purpose of associational standing that the interests that these
organizations seek to protect in this litigation are germane to their purposes.
Plaintiffs Emmalyn Rood, Mark Brown,
Elizabeth Hrenda, C. Donald Weinberg, Sherron Dixon, by her father and next
friend Gordon Dixon, James Geringer, Marnique Tynesha Overby, by her next
friend Carolyn C. Williams, William J. Rosenbaum,
Carolyn C. Williams, and Quiana Williams, by her mother and next friend Sharon
Bernard, are adults and minors who use the Internet at public libraries that,
to the best of their knowledge, do not filter patrons' access to the
Internet. Several of these plaintiffs
do not have Internet access from home.
Emmalyn Rood is a sixteen-year-old who uses
the Multnomah County Public Library.
When she was 13, she used the Internet at the Multnomah County Public
Library to research issues relating to her sexual identity. Ms. Rood did not use her home or school computer
for this research, in part because she wished her searching to be private. Although the library offered patrons the
option of using filtering software, Ms. Rood did not use that option because
she had had previous experience with such programs blocking information that
was valuable to her, including information relating to gay and lesbian issues.
Plaintiff Mark Brown used the Internet at the
Philadelphia Free Library to research breast cancer and reconstructive surgery
for his mother who had breast surgery.
Mr. Brown's research at the library provided him and his mother with
essential information about his mother's medical condition and potential
treatments.
3. Web Publisher Plaintiffs
Plaintiff Afraid to Ask, Inc., based in
Saunderstown, Rhode Island, publishes a health education Web site,
www.AfraidtoAsk.com. Dr. Jonathan Bertman, the president
and medical director of Afraid to Ask, is a family practice physician in rural
Rhode Island and a clinical assistant professor of family medicine at Brown
University. AfraidtoAsk.com's mission
is to provide detailed information on sensitive health issues, often of a
sexual nature, such as sexually transmitted diseases, male and female
genitalia, and birth control, sought by people of all ages who would prefer to
learn about sensitive health issues anonymously, i.e., they are "afraid to
ask." As part of its educational
mission, AfraidtoAsk.com often uses graphic images of sexual anatomy to convey
information. Its primary audience is
teens and young adults. Based on survey
data collected on the site, half of the people visiting the site are under 24
years old and a quarter are under 18.
AfraidtoAsk.com is blocked by several leading blocking products as
containing sexually explicit content.
*416 Plaintiff Alan Guttmacher
Institute has a Web site that contains information about its activities and
objectives, including its mission to protect the reproductive choices of women
and men. Plaintiff Planned Parenthood
Federation of America, Inc. ("Planned Parenthood") is a national
voluntary organization in the field of reproductive health care. Planned Parenthood owns and operates several
Web sites that provide a range of information about reproductive health, from
contraception to prevention of sexually transmitted diseases, to finding an
abortion provider, and to information about the drug Mifepristone. Plaintiff Safersex.org is a Web site that offers free educational information on how
to practice safer sex.
Plaintiff Ethan Interactive, Inc., d/b/a Out
In America, is an online content provider that owns and operates 64 free Web
sites for gay, lesbian, bisexual and transgendered persons worldwide. Plaintiff PlanetOut Corporation is an online
content provider for gay, lesbian, bisexual and transgendered persons.
Plaintiff the Naturist Action Committee ("NAC") is the nonprofit
political arm of the Naturist Society, a private organization that promotes a
way of life characterized by the practice of nudity. The NAC Web site provides information about Naturist Society
activities and about state and local laws that may affect the rights of
Naturists or their ability to practice Naturism, and includes nude photographs
of its members.
Plaintiff Wayne L. Parker was the Libertarian
candidate in the 2000 U.S. Congressional election for the Fifth District of
Mississippi (and is running again in 2002).
He publishes a Web site that communicates information about his campaign
and that provides information about his political views and the Libertarian
Party to the public. Plaintiff Jeffrey
Pollock was the Republican candidate in the 2000 U.S. Congressional election
for the Third District of Oregon. He
operates a Web site that is now promoting his candidacy for Congress in 2002. [FN3]
FN3. The government
challenges the standing of several of the plaintiffs
and the ripeness of their claims. These
include all of the Web site publishers and all of the individual library
patrons. Notwithstanding these
objections, we are confident that the "case or controversy"
requirement of Article
III, § 2 of the Constitution is met by the existence of the plaintiff libraries that
qualify for LSTA and E-rate funding and the library associations whose members
qualify for such funding. These
plaintiffs are faced with the impending choice of either certifying compliance
with CIPA by July 1, 2002, or foregoing subsidies under the LSTA and E-rate
programs, and therefore clearly have standing to challenge the
constitutionality of the conditions to which they will be subject should they
accept the subsidies. We also note that
the presence of the Web site publishers and individual library patrons does not
affect our legal analysis or disposition of the case.
C. The Internet
1. Background
As we noted at the outset, the Internet is a
vast, interactive medium consisting of a decentralized network of computers
around the world. The Internet presents
low entry barriers to anyone who wishes to provide or distribute
information. Unlike television, cable,
radio, newspapers, magazines or books, the Internet provides an opportunity for
those with access to it to communicate with
a worldwide audience at little cost. At
least 400 million people use the Internet worldwide, and approximately 143
million Americans were using the Internet as of September 2001. Nat'l Telecomm. & Info. Admin., A Nation Online: How Americans Are Expanding Their Use of the
Internet (February 2002), available at
http://www.ntia.doc.gov/ntiahome/dn/.
*417 The World Wide Web is a part of
the Internet that consists of a network of computers, called "Web
servers," that host "pages" of content accessible via the
Hypertext Transfer Protocol or "HTTP." Anyone with a computer
connected to the Internet can search for and retrieve information stored on Web
servers located around the world.
Computer users typically access the Web by running a program called a
"browser" on their computers.
The browser displays, as individual pages on the computer screen, the
various types of content found on the Web and lets the user follow the
connections built into Web pages--called "hypertext links,"
"hyperlinks," or "links"--to additional content. Two popular browsers are Microsoft Internet
Explorer and Netscape Navigator.
A "Web page" is one or more files a
browser graphically assembles to make a viewable whole when a user requests
content over the Internet. A Web page
may contain a variety of different elements, including text, images, buttons,
form fields that the user can fill in, and links to other Web pages. A "Web site" is a term that can be
used in several different ways. It may
refer to all of the pages and resources
available on a particular Web server.
It may also refer to all the pages and resources associated with a
particular organization, company or person, even if these are located on
different servers, or in a subdirectory on a single server shared with other,
unrelated sites. Typically, a Web site
has as an intended point of entry, a "home page," which includes
links to other pages on the same Web site or to pages on other sites. Online
discussion groups and chat rooms relating to a variety of subjects are
available through many Web sites.
Users may find content on the Web using
engines that search for requested keywords.
In response to a keyword request, a search engine will display a list of
Web sites that may contain relevant content and provide links to those sites. Search engines and directories often return
a limited number of sites in their search results (e.g., the Google search
engine will return only 2,000 sites in response to a search, even if it has
found, for example, 530,000 sites in its index that meet the search criteria).
A user may also access content on the Web by
typing a URL (Uniform Resource Locator) into the address line of the
browser. A URL is an address that
points to some resource located on a Web server that is accessible over the
Internet. This resource may be a Web
site, a Web page, an image, a sound or video file, or other resource. A URL can be either a numeric Internet
Protocol or "IP" address, or an alphanumeric "domain name"
address. Every Web server connected to the Internet is assigned an
IP address. A typical IP address looks
like "13.1.64.14." Typing the URL "http://13.1.64.14
/" into a browser will bring the user to the Web server that corresponds
to that address. For convenience, most
Web servers have alphanumeric domain name addresses in addition to IP
addresses. For example, typing in
"http:// www.paed.uscourts.gov " will bring the user to the
same Web server as typing in "http://204.170.64.143."
Every time a user attempts to access material
located on a Web server by entering a domain name address into a Web browser, a
request is made to a Domain Name Server, which is a directory of domain names
and IP addresses, to "resolve," or translate, the domain name address
into an IP address. That IP address is
then used to locate the Web server from which content is being requested. A Web site may be accessed by using either
its domain name address or its IP address.
*418 A domain name address typically
consists of several parts. For example,
the alphanumeric URL http://www.paed.uscourts.gov/documents/opinions can
be broken down into three parts. The
first part is the transfer protocol the computer will use in accessing the
content (e.g., "http" for Hypertext Transfer Protocol); next is the name of the host server on which
the information is stored (e.g., www.paed.uscourts.gov ); and then the name of the particular file or
directory on that server (e.g., /documents/opinions ).
A
single Web page may be associated with more than one URL. For example, the URLs
http://www.newyorktimes.com and http://www.nytimes.com will both
take the user to the New York Times home page. The topmost directory in a Web site is often referred to as that
Web site's root directory or root URL. For example, in http://www.paed.uscourts.gov/documents,
the root URL is http:// www.paed.uscourts.gov. There may be hundreds or
thousands of pages under a single root URL, or there may be one or only a few.
There are a number of Web hosting companies
that maintain Web sites for other businesses and individuals, which can lead to
vast amounts of diverse content being located at the same IP address. Hosting services are offered either for a
fee, or in some cases, for free, allowing any individual with Internet access
to create a Web site. Some hosting
services are provided through the process of "IP-based hosting,"
where each domain name is assigned a unique IP number. For example, www.baseball.com
might map to the IP address "10.3.5.9" and www.XXX.com might
map to the IP address "10.0.42.5." Other hosting services are
provided through the process of "name-based hosting," where multiple
domain name addresses are mapped to a single IP address. If the hosting company were using this
method, both www.baseball.com and www.XXX.com could map to a
single IP address, e.g., "10.3.5.9." As a result of the "name-based
hosting" process, up to tens of thousands of pages with heterogeneous
content may share a single IP address.
2. The Indexable Web, the "Deep
Web"; Their Size and Rates of
Growth and
Change
The universe of content on the Web that could
be indexed, in theory, by standard search engines is known as the
"publicly indexable Web." The publicly indexable Web is limited to
those pages that are accessible by following a link from another Web page that
is recognized by a search engine. This
limitation exists because online indexing techniques used by popular search
engines and directories such as Yahoo, Lycos and AltaVista, are based on
"spidering" technology, which finds sites to index by following links
from site to site in a continuous search for new content. If a Web page or site is not linked by
others, then spidering will not discover that page or site.
Furthermore, many larger Web sites contain
instructions, through software, that prevent spiders from investigating that
site, and therefore the contents of such sites also cannot be indexed using
spidering technology. Because of the
vast size and decentralized structure of the Web, no search engine or directory
indexes all of the content on the publicly indexable Web. We credit current
estimates that no more than 50% of the content currently on the publicly
indexable Web has been indexed by all search engines and directories
combined. No currently available method
or combination of methods for collecting URLs can collect the addresses of all
URLs on the Web.
The portion of the Web that is not
theoretically indexable through the use of "spidering"
*419 technology, because other Web pages do not link to it, is called
the "Deep Web." Such sites or pages can still be made publicly
accessible without being made publicly indexable by, for example, using
individual or mass emailings (also known as "spam") to distribute the
URL to potential readers or customers, or by using types of Web links that
cannot be found by spiders but can be seen and used by readers. "Spamming" is a common method of
distributing to potential customers links to sexually explicit content that is
not indexable.
Because the Web is decentralized, it is
impossible to say exactly how large it is.
A 2000 study estimated a total of 7.1 million unique Web sites, which at
the Web's historical rate of growth, would have increased to 11 million unique
sites as of September 2001. Estimates of the total number of Web pages vary,
but a figure of 2 billion is a reasonable estimate of the number of Web pages
that can be reached, in theory, by standard search engines. We need not make a specific finding as to a
figure, for by any measure the Web is extremely vast, and it is constantly
growing. The indexable Web is growing
at a rate of approximately 1.5 million pages per day. The size of the un-indexable Web, or the "Deep Web,"
while impossible to determine precisely, is estimated to be two to ten times
that of the publicly indexable Web.
In addition to growing rapidly, Web pages and
sites are constantly being removed, or changing their content. Web sites or pages can change content without changing their domain name addresses or
IP addresses. Individual Web pages have
an average life span of approximately 90 days.
3. The Amount of Sexually Explicit Material on the Web
There is a vast amount of sexually explicit
material available via the Internet and the Web. Sexually explicit material on
the Internet is easy to access using any public search engine, such as, for
example, Google or AltaVista. Although
much of the sexually explicit material available on the Web is posted on
commercial sites that require viewers to pay in order to gain access to the
site, a large number of sexually explicit sites may be accessed for free and
without providing any registration information. Most importantly, some Web sites that contain sexually explicit
content have innocuous domain names and therefore can be reached
accidentally. A commonly cited example
is http://www.whitehouse.com. Other innocent-sounding URLs that
retrieve graphic, sexually explicit depictions include http://www.boys.com,
http://www.girls.com, http://www.coffeebeansupply.com, and http://www.BookstoreUSA.com.
Moreover, commercial Web sites that contain sexually explicit material often
use a technique of attaching pop-up windows to their sites, which open new
windows advertising other sexually explicit sites without any prompting by the
user. This technique makes it difficult for a user quickly to exit all of the
pages containing sexually explicit material, whether he or she initially
accessed such material intentionally or not.
The percentage of Web pages on the indexed Web containing sexually
explicit content is relatively small.
Recent estimates indicate that no more than 1-2% of the content on the
Web is pornographic or sexually explicit.
However, the absolute number of Web sites offering free sexually
explicit material is extremely large, approximately 100,000 sites.
D. American Public Libraries
The more than 9,000 public libraries in the
United States are typically funded (at least in large part) by state or local
governments. They are frequently
overseen *420 by a board of directors that is either elected or is
appointed by an elected official or a body of elected officials. We heard testimony from librarians and
library board members working in eight public library systems in different
communities across the country, some of whom are also plaintiffs in this
case. They hailed from the following
library systems: Fort Vancouver, Washington;
Fulton County, Indiana;
Greenville, South Carolina; a
regional consortium of libraries centered in Madison, Wisconsin; Multnomah
County, Oregon; Norfolk, Virginia; Tacoma, Washington; and Westerville, Ohio. The parties also took
depositions from several other librarians and library board members who did not
testify during the trial, and submitted a number of other documents regarding
individual libraries' policies.
1. The Mission of Public Libraries, and Their Reference and
Collection
Development Practices
American public libraries operate in a wide variety of
communities, and it is not surprising that they do not all view their mission
identically. Nor are their practices
uniform. Nevertheless, they generally
share a common mission-- to provide patrons with a wide range of information
and ideas.
Public libraries across the country have
endorsed the American Library Association's ("ALA") "Library
Bill of Rights" and/or "Freedom to Read Statement," including
every library testifying on behalf of the defendants in this case. The "Library Bill of Rights,"
first adopted by the ALA in 1948, provides, among other things, that
"[b]ooks and other library resources should be provided for the interest,
information, and enlightenment of all people of the community the library
serves." It also states that
libraries "should provide materials and information presenting all points
of view on current and historical issues" and that library materials
"should not be proscribed or removed because of partisan or doctrinal
disapproval."
The ALA's "Freedom to Read"
statement, adopted in 1953 and most recently updated in July 2000, states,
among other things, that "[i]t is in the public interest for publishers
and librarians to make available the widest diversity of views and expressions,
including those that are unorthodox or unpopular with the majority." It also states that "[i]t is the
responsibility of ... librarians ... to contest encroachments upon th[e]
freedom [to read] by individuals or groups seeking to impose their own
standards or tastes upon the community at
large."
Public libraries provide information not only
for educational purposes, but also for recreational, professional, and other
purposes. For example, Ginnie Cooper,
Director of the Multnomah County Library, testified that some of the library's
most popular items include video tapes of the British Broadcasting
Corporation's "Fawlty Towers" series, and also print and "books
on tape" versions of science fiction, romance, and mystery novels. Many public libraries include sexually
explicit materials in their print collection, such as The Joy of Sex and
The Joy of Gay Sex. Very few public libraries, however, collect more
graphic sexually explicit materials, such as XXX-rated videos, or Hustler
magazine. [FN4]
FN4. The OCLC
database, a cooperative cataloging service established to facilitate
interlibrary loan requests, includes 40 million catalog records from approximately
48,000 libraries of all types worldwide. Slightly more than 400 of the
libraries in the OCLC database are listed as carrying Playboy in their collections, while only eight subscribe to Hustler.
*421 The mission of public librarians
is to provide their patrons with a wide array of information, and they surely
do so. Reference librarians across America answer more than 7 million questions
weekly. If a patron has a specialized
need for information not available in the public library, the professional
librarian will use a reference interview to find out what information is needed
to help the user, including the purpose for which an item will be used. Reference librarians are trained to assist
patrons without judging the patron's purpose in seeking information, or the
content of the information that the patron is seeking.
Many public libraries routinely provide
patrons with access to materials not in their collections through the use of
bibliographic access tools and interlibrary loan programs. Public libraries typically will assist
patrons in obtaining access to all materials except those that are illegal, even
if they do not collect those materials in their physical collection. In order to provide this access, a librarian
may attempt to find material not included in the library's own collection in
other libraries in the system, through interlibrary loan, or through a
referral, perhaps to a government agency or a commercial bookstore. Interlibrary loan is expensive, however, and
is therefore used infrequently.
Public librarians also apply professional
standards to their collection development practices. Public libraries generally make material selection decisions and
frame policies governing collection development at the local level. Collection development is a key subject in
the curricula of Masters of Library Science
programs and is defined by certain practices.
In general, professional standards guide public librarians to build,
develop and create collections that have certain characteristics, such as
balance in its coverage and requisite and appropriate quality. To this end, the goal of library collections
is not universal coverage, but rather to find those materials that would be of
the greatest direct benefit or interest to the community. In making selection decisions, librarians
consider criteria including the content of the material, its accuracy, the
title's niche in relation to the rest of the collection, the authority of the
author, the publisher, the work's presentation, and how it compares with other
material available in the same genre or on the same subject.
In pursuing the goal of achieving a balanced
collection that serves the needs and interests of their patrons, librarians
generally have a fair amount of autonomy, but may also be guided by a library's
collection development policy. These collection development policies are often
drawn up in conjunction with the libraries' governing boards and with
representatives from the community, and may be the result of public hearings,
discussions and other input.
Although many librarians use selection aids,
such as review journals and bibliographies, as a guide to the quality of potential
acquisitions, they do not generally delegate their selection decisions to
parties outside of the public library or its governing body. One limited exception is the use of third-party vendors or approval plans to
acquire print and video resources. In such
arrangements, third-party vendors provide materials based on the library's
description of its collection development criteria. The vendor sends materials to the library, and the library
retains the materials that meet its collection development needs and returns
the materials that do not. Even in this
arrangement, however, the librarians still retain ultimate control over their
collection development and review all of the materials that enter their
library's collection.
*422 2.
The Internet in Public Libraries
The vast majority of public libraries offer
Internet access to their patrons.
According to a recent report by the U.S. National Commission on
Libraries and Information Science, approximately 95% of all public libraries
provide public access to the Internet.
John C. Bertot & Charles R. McClure, Public Libraries and the
Internet 2000: Summary Findings and
Data Tables, Report to National Commission on Libraries and Information
Science, at 3. The Internet vastly expands the amount of information available
to patrons of public libraries. The widespread availability of Internet access
in public libraries is due, in part, to the availability of public funding,
including state and local funding and the federal funding programs regulated by
CIPA.
Many libraries face a large amount of patron
demand for their Internet services. At
some libraries, patron demand for Internet access during a given day exceeds the supply of computer terminals
with access to the Internet. These libraries use sign-in and time limit
procedures and/or establish rules regarding the allowable uses of the
terminals, in an effort to ration their computer resources. For example, some of the libraries whose
librarians testified at trial prohibit the use of email and chat functions on
their public Internet terminals.
Public libraries play an important role in
providing Internet access to citizens who would not otherwise possess it. Of the 143 million Americans using the
Internet, approximately 10%, or 14.3 million people, access the Internet at a
public library. Internet access at
public libraries is more often used by those with lower incomes than those with
higher incomes. About 20.3% of Internet
users with household family income of less than $15,000 per year use public
libraries for Internet access.
Approximately 70% of libraries serving communities with poverty levels
in excess of 40% receive E-rate discounts.
a. Internet Use Policies in Public Libraries
Approximately 95% of libraries with public
Internet access have some form of
"acceptable use" policy or "Internet use" policy
governing patrons' use of the Internet.
These policies set forth the conditions under which patrons are
permitted to access and use the library's Internet resources. These policies vary widely. Some of the less restrictive policies, like
those held by Multnomah County Library and
Fort Vancouver Regional Library, do not prohibit adult patrons from viewing
sexually explicit materials on the Web, as long as they do so at terminals with
privacy screens or recessed monitors, which are designed to prevent other
patrons from seeing the material that they are viewing, and as long as it does
not violate state or federal law to do so. Other libraries prohibit their
patrons from viewing all "sexually explicit" or "sexually
graphic" materials.
Some libraries prohibit the viewing of
materials that are not necessarily sexual, such as Web pages that are
"harmful to minors," "offensive to the public,"
"objectionable," "racially offensive," or simply
"inappropriate." Other libraries restrict access to Web sites that
the library just does not want to provide, even though the sites are not
necessarily offensive. For example, the
Fulton County Public Library restricts access to the Web sites of dating
services. Similarly, the Tacoma Public
Library's policy does not allow patrons to use the library's Internet terminals
for personal email, for online chat, or for playing games.
In some cases, libraries instituted Internet
use policies after having experienced *423 specific problems, whereas in
other cases, libraries developed detailed Internet use policies and regulatory
measures (such as using filtering software) before ever offering public
Internet access. Essentially four
interests motivate libraries to institute Internet use policies and to apply the methods described above to regulate
their patrons' use of the Internet.
First, libraries have sought to protect
patrons (especially children) and staff members from accidentally viewing
sexually explicit images, or other Web pages containing content deemed harmful,
that other patrons are viewing on the Internet. For example, some librarians who testified described situations
in which patrons left sexually explicit images minimized on an Internet
terminal so that the next patron would see them when they began using it, or in
which patrons printed sexually explicit images from a Web site and left them at
a public printer.
Second, libraries have attempted to protect
patrons from unwittingly or accidentally accessing Web pages that they do not
wish to see while they are using the Internet.
For example, the Memphis Shelby County (Tennessee) Public Library's
Internet use policy states that the library "employs filtering technology
to reduce the possibility that customers may encounter objectionable content in
the form of depictions of full nudity and sexual acts."
Third, libraries have sought to keep patrons
(again, especially children) from intentionally accessing sexually explicit
materials or other materials that the library deems inappropriate. For example, a study of the Tacoma Public
Library's Internet use logs for the year 2000 showed that users between the
ages of 11 and 15 accounted for 41% of the filter blocks that occurred on library computers. The study, which we credit, concluded that children and young
teens were actively seeking to access sexually explicit images in the
library. The Greenville Library's Board
of Directors was particularly concerned that patrons were accessing obscene
materials in the public library in violation of South Carolina's obscenity
statute.
Finally, some libraries have regulated
patrons' Internet use to attempt to control patrons' inappropriate (or illegal)
behavior that is thought to stem from viewing Web pages that contain sexually
explicit materials or content that is otherwise deemed unacceptable.
We recognize the concerns that led several of
the public libraries whose librarians and board members testified in this case
to start using Internet filtering software.
The testimony of the Chairman of the Board of the Greenville Public
Library is illustrative. In December
1999, there was considerable local press coverage in Greenville concerning
adult patrons who routinely used the library to surf the Web for
pornography. In response to public
outcry stemming from the newspaper report, the Board of Trustees held a special
board meeting to obtain information and to communicate with the public
concerning the library's provision of Internet access. At this meeting, the Board learned for the
first time of complaints about children being exposed to pornography that was
displayed on the library's Internet terminals.
In late January to early February of 2000,
the library installed privacy screens and
recessed terminals in an effort to restrict the display of sexually explicit
Web sites at the library. In February,
2000, the Board informed the library staff that they were expected to be
familiar with the South Carolina obscenity statute and to enforce the policy
prohibition on access to obscene materials, child pornography, or other
materials prohibited under applicable local, state, and federal laws. Staff *424 were told that they were
to enforce the policy by means of a "tap on the shoulder." Prior to adopting its current Internet Use
Policy, the Board adopted an "Addendum to Current Internet Use
Policy." Under the policy, the
Board temporarily instituted a two-hour time limit per day for Internet use; reduced substantially the number of
computers with Internet access in the library;
reconfigured the location of the computers so that librarians had visual
contact with all Internet- accessible terminals; and removed the privacy screens from terminals with Internet
access.
Even after the Board implemented the privacy
screens and later the
"tap-on-the-shoulder" policy combined with placing terminals
in view of librarians, the library experienced a high turnover rate among
reference librarians who worked in view of Internet terminals. Finding that the policies that it had tried
did not prevent the viewing of sexually explicit materials in the library, the
Board at one point considered discontinuing Internet access in the
library. The Board finally concluded
that the methods that it had used to regulate
Internet use were not sufficient to stem the behavioral problems that it
thought were linked to the availability of pornographic materials in the
library. As a result, it implemented a
mandatory filtering policy.
We note, however, that none of the libraries
proffered by the defendants presented any systematic records or quantitative
comparison of the amount of criminal or otherwise inappropriate behavior that
occurred in their libraries before they began using Internet filtering software
compared to the amount that happened after they installed the software. The plaintiffs' witnesses also testified
that because public libraries are public places, incidents involving
inappropriate behavior in libraries (sexual and otherwise) existed long before
libraries provided access to the Internet.
b. Methods for Regulating Internet Use
The methods that public libraries use to
regulate Internet use vary greatly.
They can be organized into four categories: (1) channeling patrons' Internet use; (2) separating patrons so that they will not see what other
patrons are viewing; (3) placing
Internet terminals in public view and having librarians observe patrons to make
sure that they are complying with the library's Internet use policy; and (4) using Internet filtering software.
The first category--channeling patrons'
Internet use--frequently includes offering training to patrons on how to use
the Internet, including how to access the information that they want and to
avoid the materials that they do not
want. Another technique that some public
libraries use to direct their patrons to pages that the libraries have
determined to be accurate and valuable is to establish links to
"recommended Web sites" from the public library's home page (i.e.,
the page that appears when patrons begin a session at one of the library's
public Internet terminals). Librarians
select these recommended Web sites by using criteria similar to those employed
in traditional collection development.
However, unless the library determines otherwise, selection of these specific
sites does not preclude patrons from attempting to access other Internet Web
sites.
Libraries may extend the "recommended
Web sites" method further by limiting patrons' access to only those Web
sites that are reviewed and selected by the library's staff. For example, in 1996, the Westerville, Ohio
Library offered Internet access to children through a service called the
"Library Channel." This service was intended to be a means by which
the library *425 could organize the Internet in some fashion for
presentation to patrons. Through the
Library Channel, the computers in the children's section of the library were
restricted to 2,000 to 3,000 sites selected by librarians. After three years, Westerville stopped using
the Library Channel system because it overly constrained the children's ability
to access materials on the Internet, and because the library experienced
several technical problems with the system.
Public libraries also use several different
techniques to separate patrons during
Internet sessions so that they will not see what other patrons are
viewing. The simplest way to achieve
this result is to position the library's public Internet terminals so that they
are located away from traffic patterns in the library (and from other terminals),
for example, by placing them so that they face a wall. This method is obviously constrained by
libraries' space limitations and physical layout. Some libraries have also installed privacy screens on their
public Internet terminals. These
screens make a monitor appear blank unless the viewer is looking at it head-on.
[FN5] Although the
Multnomah and Fort Vancouver Libraries submitted records showing that they have
received few complaints regarding patrons' unwilling exposure to materials on
the Internet, privacy screens do not always prevent library patrons or
employees from inadvertently seeing the materials that another patron is
viewing when passing directly behind a terminal. They also have the drawback of making it difficult for patrons to
work together at a single terminal, or for librarians to assist patrons at
terminals, because it is difficult for two people to stand side by side and
view a screen at the same time. Some
library patrons also find privacy screens to be a hindrance and have attempted
to remove them in order to improve the brightness of the screen or to make the
view better.
FN5. Fort Vancouver
Regional Library, for example, combines the methods
of strategically placing terminals in low traffic areas and using privacy
screens. A section headed
"Confidentiality and Privacy" on the library's home page states: "in order to protect the privacy of the
user and the interests of other library patrons, the library will attempt to
minimize unintentional viewing of the Internet. This will be done by use of privacy screens, and by judicious
placement of the terminals and other appropriate means."
Another method that libraries use to prevent
patrons from seeing what other patrons are viewing on their terminals is the
installation of "recessed monitors."
Recessed monitors are computer screens that sit below the level of a
desk top and are viewed from above.
Although recessed monitors, especially when combined with privacy
screens, eliminate almost all of the possibility of a patron accidentally
viewing the contents on another patron's screen, they suffer from the same
drawbacks as privacy screens, that is, they make it difficult for patrons to
work together or with a librarian at a single terminal. Some librarians also testified that recessed
monitors are costly, but did not indicate how expensive they are compared to
privacy screens or filtering software.
A related technique that some public libraries use is to create a
separate children's Internet viewing area, where no adults except those
accompanying children in their care may use the Internet terminals. This serves
the objective of keeping children from inadvertently viewing materials
appropriate only for adults that adults may be viewing on nearby terminals.
A third set of techniques that public
libraries have used to enforce their Internet use policies takes the opposite
tack from the privacy screens/recessed monitors approach by placing all of the
library's *426 public Internet terminals in prominent and visible
locations, such as near the library's reference desk. This approach allows librarians to enforce their library's
Internet use policy by observing what patrons are viewing and employing the
tap-on-the-shoulder policy. Under this
approach, when patrons are viewing materials that are inconsistent with the
library's policies, a library staff member approaches them and asks them to
view something else, or may ask them to end their Internet session. A patron who does not comply with these
requests, or who repeatedly views materials not permitted under the library's
Internet use policy, may have his or her Internet or library privileges
suspended or revoked. But many
librarians are uncomfortable with approaching patrons who are viewing sexually
explicit images, finding confrontation unpleasant. Hence some libraries are reluctant to apply the
tap-on-the-shoulder policy.
The fourth category of methods that public
libraries employ to enforce their Internet use policies, and the one that gives
rise to this case, is the use of Internet filtering software. According to the June 2000 Survey of
Internet Access Management in Public Libraries, approximately 7% of
libraries with public Internet access had
mandated the use of blocking programs by adult patrons. Some public libraries provide patrons with
the option of using a blocking program, allowing patrons to decide whether to
engage the program when they or their children access the Internet. Other public libraries require their child
patrons to use filtering software, but not their adult patrons.
Filtering software vendors sell their
products on a subscription basis. The
cost of a subscription varies with the number of computers on which the
filtering software will be used. In
2001, the cost of the Cyber Patrol filtering software was $1,950 for 100
terminal licenses. The Greenville
County Library System pays $2,500 per year for the N2H2 filtering software, and
a subscription to the Websense filter costs Westerville Public Library
approximately $1,200 per year.
No evidence was presented on the cost of
privacy screens, recessed monitors, and the tap-on-the-shoulder policy,
relative to the costs of filtering software.
Nor did any of the libraries proffered by the government present any
quantitative evidence on the relative effectiveness of use of privacy screens
to prevent patrons from being unwillingly exposed to sexually explicit
material, and the use of filters, discussed below. No evidence was presented, for example, comparing the number of
patron complaints in those libraries that have tried both methods.
The librarians who testified at trial whose
libraries use Internet filtering software
all provide methods by which their patrons may ask the library to unblock
specific Web sites or pages. Of these,
only the Tacoma Public Library allows patrons to request that a URL be
unblocked without providing any identifying information; Tacoma allows patrons to request a URL by
sending an email from the Internet terminal that the patron is using that does
not contain a return email address for the user. David Biek, the head librarian at the Tacoma Library's main
branch, testified at trial that the library keeps records that would enable it
to know which patrons made unblocking requests, but does not use that
information to connect users with their requests. Biek also testified that he periodically scans the library's
Internet use logs to search for: (1)
URLs that were erroneously blocked, so that he may unblock them; or (2) URLs that should have been blocked,
but were not, in order to add them to a blocked category list. In the course of scanning the use logs, Biek
has *427 also found what looked like attempts to access child
pornography. In two cases, he
communicated his findings to law enforcement and turned over the logs in
response to a subpoena.
At all events, it takes time for librarians
to make decisions about whether to honor patrons' requests to unblock Web
pages. In the libraries proffered by the
defendants, unblocking decisions sometimes take between 24 hours and a
week. Moreover, none of these libraries
allows unrestricted access to the Internet pending a determination of the
validity of a Web site blocked by the
blocking programs. A few of the
defendants' proffered libraries represented that individual librarians would
have the discretion to allow a patron to have full Internet access on a staff
computer upon request, but none claimed that allowing such access was
mandatory, and patron access is supervised in every instance. None of these libraries makes differential
unblocking decisions based on the patrons' age. Unblocking decisions are usually made identically for adults and
minors. Unblocking decisions even for
adults are usually based on suitability of the Web site for minors.
It is apparent that many patrons are
reluctant or unwilling to ask librarians to unblock Web pages or sites that
contain only materials that might be deemed personal or embarrassing, even if
they are not sexually explicit or pornographic. We credit the testimony of Emmalyn Rood, discussed above, that
she would have been unwilling as a young teen to ask a librarian to disable
filtering software so that she could view materials concerning gay and lesbian
issues. We also credit the testimony of
Mark Brown, who stated that he would have been too embarrassed to ask a
librarian to disable filtering software if it had impeded his ability to
research treatments and cosmetic surgery options for his mother when she was diagnosed
with breast cancer.
The pattern of patron requests to unblock
specific URLs in the various libraries involved in this case also confirms our
finding that patrons are largely unwilling to make unblocking requests unless
they are permitted to do so
anonymously. For example, the Fulton
County Library receives only about 6 unblocking requests each year, the
Greenville Public Library has received only 28 unblocking requests since August
21, 2000, and the Westerville, Ohio Library has received fewer than 10
unblocking requests since 1999. In
light of the fact that a substantial amount of overblocking occurs in these
very libraries, see infra Subsection II.E.4, we find that the lack of
unblocking requests in these libraries does not reflect the effectiveness of
the filters, but rather reflects patrons' reluctance to ask librarians to
unblock sites.
E. Internet Filtering Technology
1. What Is Filtering Software, Who Makes It, and What Does It Do?
Commercially available products that can be
configured to block or filter access to certain material on the Internet are
among the "technology protection measures" that may be used to
attempt to comply with CIPA. There are numerous filtering software products
available commercially. Three
network-based filtering products--SurfControl's Cyber Patrol, N2H2's
Bess/i2100, and Secure Computing's SmartFilter--currently have the lion's share
of the public library market. The
parties in this case deposed representatives from these three companies. Websense, another network-based blocking
product, is also currently used in the public library market, and was discussed
at trial.
*428 Filtering software may be
installed either on an individual computer or on a computer network. Network-based filtering software products are designed for use on a network of computers
and funnel requests for Internet content through a centralized network
device. Of the various commercially
available blocking products, network-based products are the ones generally
marketed to institutions, such as public libraries, that provide Internet
access through multiple terminals.
Filtering programs function in a fairly
simple way. When an Internet user
requests access to a certain Web site or page, either by entering a domain name
or IP address into a Web browser, or by clicking on a link, the filtering
software checks that domain name or IP address against a previously compiled
"control list" that may contain up to hundreds of thousands of URLs.
The three companies deposed in this case have control lists containing between
200,000 and 600,000 URLs. These lists determine which URLs will be blocked.
Filtering software companies divide their
control lists into multiple categories for which they have created unique
definitions. SurfControl uses 40 such
categories, N2H2 uses 35 categories (and seven "exception"
categories), Websense uses 30 categories, and Secure Computing uses 30
categories. Filtering software customers choose which categories of URLs they
wish to enable. A user
"enables" a category in a filtering program by configuring the
program to block all of the Web pages listed in that category.
The following is a list of the categories
offered by each of these four filtering programs. SurfControl's Cyber Patrol offers the following categories:
Adult/Sexually Explicit;
Advertisements; Arts &
Entertainment; Chat; Computing &
Internet; Criminal Skills; Drugs, Alcohol & Tobacco;
Education; Finance &
Investment; Food & Drink; Gambling;
Games; Glamour & Intimate
Apparel; Government &
Politics; Hacking; Hate Speech; Health & Medicine;
Hobbies & Recreation;
Hosting Sites; Job Search &
Career Development; Kids' Sites; Lifestyle & Culture; Motor Vehicles; News; Personals & Dating;
Photo Searches; Real Estate; Reference;
Religion; Remote Proxies; Sex
Education; Search Engines; Shopping;
Sports; Streaming Media; Travel;
Usenet News; Violence; Weapons;
and Web-based Email.
N2H2 offers the following categories: Adults Only; Alcohol; Auction; Chat;
Drugs; Electronic Commerce; Employment Search; Free Mail; Free
Pages; Gambling; Games;
Hate/Discrimination;
Illegal; Jokes; Lingerie; Message/Bulletin Boards; Murder/Suicide; News; Nudity; Personal Information; Personals;
Pornography; Profanity; Recreation/Entertainment; School Cheating
Information; Search Engines; Search Terms; Sex; Sports; Stocks; Swimsuits;
Tasteless/Gross; Tobacco; Violence;
and Weapons. The
"Nudity" category purports to block only "non-pornographic"
images. The "Sex" category is
intended to block only those depictions of sexual activity that are not
intended to arouse. The
"Tasteless/Gross" category includes contents such as "tasteless
humor" and "graphic medical or accident scene photos."
Additionally, N2H2 offers seven "exception categories." These exception categories include Education, Filtered Search
Engine, For Kids, History, Medical, Moderated, and Text/Spoken Only. When an
exception category is enabled, access to any Web site or page via a URL
associated with both a category and an exception, for example, both
"Sex" and "Education," will be allowed, even if the
customer has enabled the product to otherwise*429 block the category
"Sex." As of November 15, 2001, of those Web sites categorized by
N2H2 as "Sex," 3.6% were also categorized as "Education,"
2.9% as "Medical," and 1.6% as "History."
Websense offers the following
categories: Abortion Advocacy; Advocacy Groups; Adult Material; Business
& Economy; Drugs; Education; Entertainment; Gambling;
Games; Government; Health;
Illegal/Questionable; Information Technology; Internet Communication;
Job Search; Militancy/Extremist;
News & Media; Productivity
Management; Bandwidth Management; Racism/Hate; Religion; Shopping; Society & Lifestyle; Special Events; Sports; Tasteless; Travel;
Vehicles; Violence; and Weapons. The "Adult" category includes "full or partial
nudity of individuals," as well as sites offering "light adult humor
and literature" and "[s]exually explicit language." The "Sexuality/Pornography"
category includes, inter alia, "hard- core adult humor and
literature" and "[s]exually explicit language." The "Tasteless" category includes
"hard-to-stomach sites, including offensive, worthless or useless sites,
grotesque or lurid depictions of bodily harm." The "Hacking" category blocks
"sites providing information on or promoting illegal or questionable
access to or use of communications equipment and/or software."
SmartFilter offers the following
categories: Anonymizers/Translators; Art & Culture; Chat; Criminal
Skills; Cults/Occult; Dating;
Drugs; Entertainment;
Extreme/Obscene/Violence;
Gambling; Games; General News; Hate Speech; Humor;
Investing; Job Search; Lifestyle;
Mature; MP3 Sites; Nudity; On-line Sales; Personal Pages; Politics,
Opinion & Religion; Portal
Sites; Self Help/Health; Sex;
Sports; Travel; Usenet News; and Webmail.
Most importantly, no category definition used
by filtering software companies is identical to CIPA's definitions of visual
depictions that are obscene, child pornography, or harmful to minors. And
category definitions and categorization decisions are made without reference to
local community standards. Moreover,
there is no judicial involvement in the creation of filtering software
companies' category definitions and no judicial determination is made before
these companies categorize a Web page or site.
Each filtering software company associates
each URL in its control list with a "tag" or other identifier that
indicates the company's evaluation of whether the content or features of the
Web site or page accessed via that URL meets one or more of its category
definitions. If a user attempts to
access a Web site or page that is blocked by the filter, the user is
immediately presented with a screen that
indicates that a block has occurred as a result of the operation of the
filtering software. These "denial
screens" appear only at the point that a user attempts to access a site or
page in an enabled category.
All four of the filtering programs on which
evidence was presented allow users to customize the category lists that exist
on their own PCs or servers by adding or removing specific URLs. For example,
if a public librarian charged with administering a library's Internet terminals
comes across a Web site that he or she finds objectionable that is not blocked
by the filtering program that his or her library is using, then the librarian
may add that URL to a category list that exists only on the library's network,
and it would thereafter be blocked under that category. Similarly, a customer may remove individual
URLs from category lists. Importantly,
however, no one but the filtering companies has access to the complete list of *430
URLs in any category. The actual URLs
or IP addresses of the Web sites or pages contained in filtering software
vendors' category lists are considered to be proprietary information, and are
unavailable for review by customers or the general public, including the
proprietors of Web sites that are blocked by filtering software. [FN6]
FN6. Indeed, we
granted leave for N2H2's counsel to intervene in order to object to testimony
that would potentially reveal N2H2's trade secrets, which he did on several
occasions.
Filtering software companies do not generally
notify the proprietors of Web sites when they block their sites. The only way to discover which URLs are
blocked and which are not blocked by any particular filtering company is by
testing individual URLs with filtering software, or by entering URLs one by one
into the "URL checker" that most filtering software companies provide
on their Web sites. Filtering software
companies will entertain requests for recategorization from proprietors of Web
sites that discover their sites are blocked.
Because new pages are constantly being added to the Web, filtering
companies provide their customers with periodic updates of category lists. Once
a particular Web page or site is categorized, however, filtering companies
generally do not re-review the contents of that page or site unless they
receive a request to do so, even though the content on individual Web pages and
sites changes frequently.
2. The Methods that Filtering Companies Use to Compile Category
Lists
While the way in which filtering programs
operate is conceptually straightforward--by comparing a requested URL to a
previously compiled list of URLs and blocking access to the content at that URL
if it appears on the list-- accurately compiling and categorizing URLs to form
the category lists is a more complex process that is impossible to conduct with
any high degree of accuracy. The
specific methods that filtering software companies use to compile and categorize control lists are, like
the lists themselves, proprietary information.
We will therefore set forth only general information on the various
types of methods that all filtering companies deposed in this case use, and the
sources of error that are at once inherent in those methods and unavoidable
given the current architecture of the Internet and the current state of the art
in automated classification systems. We
base our understanding of these methods largely on the detailed testimony and
expert report of Dr. Geoffrey Nunberg, which we credit. The plaintiffs offered, and the Court
qualified, Nunberg as an expert witness on automated classification systems. [FN7]
FN7. Geoffrey Nunberg
(Ph.D., Linguistics, C.U.N.Y.1977) is a researcher at the Center for the Study
of Language and Information at Stanford University and a Consulting Full
Professor of Linguistics at Stanford University. Until 2001, he was also a principal scientist at the Xerox Palo
Alto Research Center. His research
centers on automated classification systems, with a focus on classifying
documents on the Web with respect to their linguistic properties. He has published his research in numerous
professional journals, including peer-reviewed journals.
When compiling and categorizing URLs for
their category lists, filtering software
companies go through two distinct phases.
First, they must collect or "harvest" the relevant URLs from
the vast number of sites that exist on the Web. Second, they must sort through
the URLs they have collected to determine under which of the company's
self-defined categories (if any), they should be classified. These tasks necessarily result in a tradeoff
between overblocking (i.e., the blocking of content *431 that does not
meet the category definitions established by CIPA or by the filtering software
companies), and underblocking (i.e., leaving off of a control list a URL that
contains content that would meet the category definitions defined by CIPA or
the filtering software companies).
a. The "Harvesting" Phase
Filtering software companies, given their
limited resources, do not attempt to index or classify all of the billions of
pages that exist on the Web. Instead, the set of pages that they attempt to
examine and classify is restricted to a small portion of the Web. The companies
use a variety of automated and manual methods to identify a universe of Web
sites and pages to "harvest" for classification. These methods include: entering certain key words into search
engines; following links from a variety
of online directories (e.g., generalized directories like Yahoo or various
specialized directories, such as those that provide links to sexually explicit
content); reviewing lists of newly-registered
domain names; buying or licensing lists
of URLs from third parties; "mining" access logs maintained by
their customers; and reviewing other
submissions from customers and the public.
The goal of each of these methods is to identify as many URLs as
possible that are likely to contain content that falls within the filtering
companies' category definitions.
The first method, entering certain keywords
into commercial search engines, suffers from several limitations. First, the Web pages that may be
"harvested" through this method are limited to those pages that
search engines have already identified.
However, as noted above, a substantial portion of the Web is not even
theoretically indexable (because it is not linked to by any previously known
page), and only approximately 50% of the pages that are theoretically indexable
have actually been indexed by search engines.
We are satisfied that the remainder of the indexable Web, and the vast
"Deep Web," which cannot currently be indexed, includes materials
that meet CIPA's categories of visual depictions that are obscene, child
pornography, and harmful to minors.
These portions of the Web cannot presently be harvested through the
methods that filtering software companies use (except through reporting by
customers or by observing users' log files), because they are not linked to
other known pages. A user can, however,
gain access to a Web site in the unindexed Web or the Deep Web if the Web
site's proprietor or some other third party informs the user of the site's URL.
Some Web sites, for example, send out mass email advertisements containing the
site's URL, the spamming process we have
described above.
Second, the search engines that software
companies use for harvesting are able to search text only, not images. This is of critical importance, because
CIPA, by its own terms, covers only "visual depictions." 20
U.S.C. § 9134(f)(1)(A)(i); 47
U.S.C. § 254(h)(5)(B)(i). Image recognition
technology is immature, ineffective, and unlikely to improve substantially in
the near future. None of the filtering
software companies deposed in this case employs image recognition technology
when harvesting or categorizing URLs. Due to the reliance on automated text
analysis and the absence of image recognition technology, a Web page with
sexually explicit images and no text cannot be harvested using a search
engine. This problem is complicated by
the fact that Web site publishers may use image files rather than text to
represent words, i.e., they may use a file that computers understand to be a
picture, like a photograph of a printed word, rather than regular text, making
automated review of their textual content impossible. *432 For example, if the Playboy Web site displays its
name using a logo rather than regular text, a search engine would not see or
recognize the Playboy name in that logo.
In addition to collecting URLs through search
engines and Web directories
(particularly those specializing in sexually explicit sites or other
categories relevant to one of the filtering companies' category definitions),
and by mining user logs and collecting URLs submitted by users, the filtering companies expand their list of harvested URLs
by using "spidering" software that can "crawl" the lists of
pages produced by the previous four methods, following their links downward to
bring back the pages to which they link (and the pages to which those pages
link, and so on, but usually down only a few levels). This spidering software uses the same type of technology that
commercial Web search engines use.
While useful in expanding the number of
relevant URLs, the ability to retrieve additional pages through this approach
is limited by the architectural feature of the Web that page-to-page links tend
to converge rather than diverge. That
means that the more pages from which one spiders downward through links, the
smaller the proportion of new sites one will uncover; if spidering the links of 1000 sites retrieved through a search
engine or Web directory turns up 500 additional distinct adult sites, spidering
an additional 1000 sites may turn up, for example, only 250 additional distinct
sites, and the proportion of new sites uncovered will continue to diminish as
more pages are spidered.
These limitations on the technology used to
harvest a set of URLs for review will necessarily lead to substantial
underblocking of material with respect to both the category definitions
employed by filtering software companies and CIPA's definitions of visual
depictions that are obscene, child pornography, or harmful to minors.
b. The "Winnowing" or
Categorization Phase
Once the URLs have been harvested, some
filtering software companies use automated key word analysis tools to evaluate
the content and/or features of Web sites or pages accessed via a particular URL
and to tentatively prioritize or categorize them. This process may be characterized as "winnowing" the
harvested URLs. Automated systems currently used by filtering software vendors
to prioritize, and to categorize or tentatively categorize the content and/or
features of a Web site or page accessed via a particular URL operate by means
of (1) simple key word searching, and (2) the use of statistical algorithms
that rely on the frequency and structure of various linguistic features in a
Web page's text. The automated systems
used to categorize pages do not include image recognition technology. All of the filtering companies deposed in
the case also employ human review of some or all collected Web pages at some
point during the process of categorizing Web pages. As with the harvesting process, each technique employed in the
winnowing process is subject to limitations that can result in both
overblocking and underblocking.
First, simple key-word-based filters are
subject to the obvious limitation that no string of words can identify all
sites that contain sexually explicit content, and most strings of words are
likely to appear in Web sites that are not properly classified as containing
sexually explicit content. As noted
above, filtering software companies also use more sophisticated automated classification systems for the statistical
classification of texts. These systems
assign weights to words or other textual features and use algorithms to
determine *433 whether a text belongs to a certain category. These algorithms sometimes make reference to
the position of a word within a text or its relative proximity to other
words. The weights are usually
determined by machine learning methods (often described as "artificial
intelligence"). In this procedure,
which resembles an automated form of trial and error, a system is given a
"training set" consisting of documents preclassified into two or more
groups, along with a set of features that might be potentially useful in
classifying the sets. The system then
"learns" rules that assign weights to those features according to how
well they work in classification, and assigns each new document to a category
with a certain probability.
Notwithstanding their "artificial
intelligence" description, automated text classification systems are
unable to grasp many distinctions between types of content that would be
obvious to a human. And of critical
importance, no presently conceivable technology can make the judgments necessary
to determine whether a visual depiction fits the legal definitions of
obscenity, child pornography, or harmful to minors.
Finally, all the filtering software companies
deposed in this case use some form of human review in their process of
winnowing and categorizing Web pages, although one company admitted to
categorizing some Web pages without any human review. SmartFilter states that "the final
categorization of every Web site is done by a human reviewer." Another filtering company asserts that of
the 10,000 to 30,000 Web pages that enter the "work queue" to be
categorized each day, two to three percent of those are automatically
categorized by their PornByRef system (which only applies to materials
classified in the pornography category), and the remainder are categorized by human
review. SurfControl also states that no
URL is ever added to its database without human review.
Human review of Web pages has the advantage
of allowing more nuanced, if not more accurate, interpretations than automated
classification systems are capable of making, but suffers from its own sources
of error. The filtering software
companies involved here have limited staff, of between eight and a few dozen
people, available for hand reviewing Web pages. The reviewers that are employed by these companies base their
categorization decisions on both the text and the visual depictions that appear
on the sites or pages they are assigned to review. Human reviewers generally focus on English language Web sites,
and are generally not required to be multi-lingual.
Given the speed at which human reviewers must
work to keep up with even a fraction of the approximately 1.5 million pages
added to the publicly indexable Web each day, human error is inevitable. Errors are likely to result from boredom or
lack of attentiveness, overzealousness, or a desire to "err on the side of
caution" by screening out material that might be offensive to some customers, even if it does not fit within any
of the company's category definitions.
None of the filtering companies trains its reviewers in the legal
definitions concerning what is obscene, child pornography, or harmful to
minors, and none instructs reviewers to take community standards into account
when making categorization decisions.
Perhaps because of limitations on the number
of human reviewers and because of the large number of new pages that are added
to the Web every day, filtering companies also widely engage in the practice of
categorizing entire Web sites at the "root URL," rather than engaging
in a more fine-grained analysis of the individual *434 pages within a
Web site. For example, the filtering
software companies deposed in this case all categorize the entire Playboy Web
site as Adult, Sexually Explicit, or Pornography. They do not differentiate between pages within the site
containing sexually explicit images or text, and for example, pages containing
no sexually explicit content, such as the text of interviews of celebrities or
politicians. If the "root" or
"top-level" URL of a Web site is given a category tag, then access to
all content on that Web site will be blocked if the assigned category is
enabled by a customer.
In some cases, whole Web sites are blocked
because the filtering companies focus only on the content of the home page that
is accessed by entering the root URL. Entire Web sites containing multiple Web
pages are commonly categorized without human review of each individual page on
that site.
Web sites that may contain multiple Web pages and that require
authentication or payment for access are commonly categorized based solely on a
human reviewer's evaluation of the pages that may be viewed prior to reaching
the authentication or payment page.
Because there may be hundreds or thousands of
pages under a root URL, filtering companies make it their primary mission to
categorize the root URL, and categorize subsidiary pages if the need arises or
if there is time. This form of
overblocking is called "inheritance," because lower-level pages
inherit the categorization of the root URL without regard to their specific
content. In some cases, "reverse inheritance" also occurs, i.e.,
parent sites inherit the classification of pages in a lower level of the
site. This might happen when pages with
sexual content appear in a Web site that is devoted primarily to non-sexual
content. For example, N2H2's Bess
filtering product classifies every page in the Salon.com Web site, which
contains a wide range of news and cultural commentary, as "Sex,
Profanity," based on the fact that the site includes a regular column that
deals with sexual issues.
Blocking by both domain name and IP address
is another practice in which filtering companies engage that is a function both
of the architecture of the Web and of the exigencies of dealing with the
rapidly expanding number of Web pages.
The category lists maintained by filtering software companies can
include URLs in either their human-readable domain name address form, their numeric IP address form, or both. Through "virtual hosting"
services, hundreds of thousands of Web sites with distinct domain names may
share a single numeric IP address. To
the extent that filtering companies block the IP addresses of virtual hosting
services, they will necessarily block a substantial amount of content without
reviewing it, and will likely overblock a substantial amount of content.
Another technique that filtering companies
use in order to deal with a structural feature of the Internet is blocking the
root level URLs of so- called "loophole" Web sites. These are Web sites that provide access to a
particular Web page, but display in the user's browser a URL that is different
from the URL with which the particular page is usually associated. Because of this feature, they provide a
"loophole" that can be used to get around filtering software, i.e.,
they display a URL that is different from the one that appears on the filtering
company's control list.
"Loophole" Web sites include caches of Web pages that have
been removed from their original location, "anonymizer" sites, and
translation sites.
Caches are archived copies that some search
engines, such as Google, keep of the Web pages they index. The cached copy *435 stored by Google
will have a URL that is different from the original URL. Because Web sites
often change rapidly, caches are the only way to access pages that have been
taken down, revised, or have changed their URLs for some reason. For example, a magazine might place its current stories under a given
URL, and replace them monthly with new stories. If a user wanted to find an article published six months ago, he
or she would be unable to access it if not for Google's cached version.
Some sites on the Web serve as a proxy or
intermediary between a user and another Web page. When using a proxy server, a user does not access the page from
its original URL, but rather from the URL of the proxy server. One type of proxy service is an
"anonymizer." Users may
access Web sites indirectly via an anonymizer when they do not want the Web
site they are visiting to be able to determine the IP address from which they
are accessing the site, or to leave "cookies" on their browser. [FN8] Some proxy servers can be used to attempt to
translate Web page content from one language to another. Rather than directly accessing the original
Web page in its original language, users can instead indirectly access the page
via a proxy server offering translation features.
FN8. A
"cookie" is "a small file or part of a file stored on a World
Wide Web user's computer, created and subsequently read by a Web site server,
and containing personal information (as a user identification code, customized
preferences, or a record of pages visited)." Merriam Webster's Collegiate Dictionary, available at http://www.m-w.com/dictionary.htm.
As
noted above, filtering companies often block loophole sites, such as caches,
anonymizers, and translation sites. The
practice of blocking loophole sites necessarily results in a significant amount
of overblocking, because the vast majority of the pages that are cached, for
example, do not contain content that would match a filtering company's category
definitions. Filters that do not block
these loophole sites, however, may enable users to access any URL on the Web
via the loophole site, thus resulting in substantial underblocking.
c. The Process for "Re-Reviewing" Web Pages After Their
Initial Categorization
Most filtering software companies do not
engage in subsequent reviews of categorized sites or pages on a scheduled
basis. Priority is placed on reviewing
and categorizing new sites and pages, rather than on re-reviewing already
categorized sites and pages. Typically,
a filtering software vendor's previous categorization of a Web site is not re-reviewed
for accuracy when new pages are added to the Web site. To the extent the Web site was previously
categorized as a whole, the new pages added to the site usually share the
categorization assigned by the blocking product vendor. This necessarily results in both over- and
underblocking, because, as noted above, the content of Web pages and Web sites
changes relatively rapidly.
In addition to the content on Web sites or
pages changing rapidly, Web sites themselves may disappear and be replaced by
sites with entirely different content.
If an IP address associated with a particular Web site is blocked under a particular category and the Web site
goes out of existence, then the IP address likely would be reassigned to a
different Web site, either by an Internet service provider or by a registration
organization, such as the American Registry for Internet Numbers, see http://www.arin.net.
In that case, the site that received the reassigned IP address would likely be
miscategorized. Because filtering companies
do not engage in systematic re- review of their category lists, such a site
would likely remain miscategorized *436 unless someone submitted it to
the filtering company for re-review, increasing the incidence of over- and
underblocking.
This failure to re-review Web pages primarily
increases a filtering company's rate of overblocking. However, if a filtering company does not re- review Web pages
after it determines that they do not fall into any of its blocking categories,
then that would result in underblocking (because, for example, a page might add
sexually explicit content).
3. The Inherent Tradeoff Between Overblocking and Underblocking
There is an inherent tradeoff between any
filter's rate of overblocking (which information scientists also call
"precision") and its rate of underblocking (which is also referred to
as "recall"). The rate of
overblocking or precision is measured by the proportion of the things a
classification system assigns to a certain category that are appropriately classified. The plaintiffs' expert, Dr. Nunberg,
provided the hypothetical example of a classification system that is asked to pick out pictures of dogs from a
database consisting of 1000 pictures of animals, of which 80 were actually
dogs. If it returned 100 hits, of which
80 were in fact pictures of dogs, and the remaining 20 were pictures of cats,
horses, and deer, we would say that the system identified dog pictures with a
precision of 80%. This would be analogous
to a filter that overblocked at a rate of 20%.
The recall measure involves determining what
proportion of the actual members of a category the classification system has
been able to identify. For example, if
the hypothetical animal-picture database contained a total of 200 pictures of
dogs, and the system identified 80 of them and failed to identify 120, it would
have performed with a recall of 40%.
This would be analogous to a filter that underblocked 60% of the
material in a category.
In automated classification systems, there is
always a tradeoff between precision and recall. In the animal-picture example, the recall could be improved by
using a looser set of criteria to identify the dog pictures in the set, such as
any animal with four legs, and all the dogs would be identified, but cats and
other animals would also be included, with a resulting loss of precision. The same tradeoff exists between rates of
overblocking and underblocking in filtering systems that use automated
classification systems. For example, an automated system that classifies any
Web page that contains the word "sex" as sexually explicit will
underblock much less, but overblock much more,
than a system that classifies any Web page containing the phrase "free
pictures of people having sex" as sexually explicit.
This tradeoff between overblocking and
underblocking also applies not just to automated classification systems, but
also to filters that use only human review.
Given the approximately two billion pages that exist on the Web, the 1.5
million new pages that are added daily, and the rate at which content on
existing pages changes, if a filtering company blocks only those Web pages that
have been reviewed by humans, it will be impossible, as a practical matter, to
avoid vast amounts of underblocking.
Techniques used by human reviewers such as blocking at the IP address
level, domain name level, or directory level reduce the rates of underblocking,
but necessarily increase the rates of overblocking, as discussed above.
To use a simple example, it would be easy to
design a filter intended to block sexually explicit speech that completely
avoids overblocking. Such a filter
would have only a single sexually explicit Web site on its control list, which
could be re-*437 reviewed daily to ensure that its content does not
change. While there would be no
overblocking problem with such a filter, such a filter would have a severe
underblocking problem, as it would fail to block all the sexually explicit
speech on the Web other than the one site on its control list. Similarly, it would also be easy to design a
filter intended to block sexually explicit speech that completely avoids
underblocking. Such a filter would operate by permitting users to
view only a single Web site, e.g., the Sesame Street Web site. While there would be no underblocking
problem with such a filter, it would have a severe overblocking problem, as it
would block access to millions of non-sexually explicit sites on the Web other
than the Sesame Street site.
While it is thus quite simple to design a
filter that does not overblock, and equally simple to design a filter that does
not underblock, it is currently impossible, given the Internet's size, rate of
growth, rate of change, and architecture, and given the state of the art of
automated classification systems, to develop a filter that neither underblocks
nor overblocks a substantial amount of speech.
The more effective a filter is at blocking Web sites in a given
category, the more the filter will necessarily overblock. Any filter that is reasonably effective in
preventing users from accessing sexually explicit content on the Web will
necessarily block substantial amounts of non- sexually explicit speech.
4. Attempts to Quantify Filtering Programs' Rates of Over- and
Underblocking
The government presented three studies, two
from expert witnesses, and one from a librarian fact witness who conducted a
study using Internet use logs from his own library, that attempt to quantify
the over- and underblocking rates of five different filtering programs. The plaintiffs presented one expert witness
who attempted to quantify the rates of over- and underblocking for various programs. Each of these attempts to quantify rates of over- and
underblocking suffers from various methodological flaws.
The fundamental problem with calculating
over- and underblocking rates is selecting a universe of Web sites or Web pages
to serve as the set to be tested. The
studies that the parties submitted in this case took two different approaches
to this problem. Two of the studies,
one prepared by the plaintiffs' expert witness Chris Hunter, a graduate student
at the University of Pennsylvania, and the other prepared by the defendants'
expert, Chris Lemmons of eTesting Laboratories, in Research Triangle Park,
North Carolina, approached this problem by compiling two separate lists of Web
sites, one of URLs that they deemed should be blocked according to the filters'
criteria, and another of URLs that they deemed should not be blocked according
to the filters' criteria. They compiled
these lists by choosing Web sites from the results of certain key word
searches. [FN9] The problem with this selection *438
method is that it is neither random, nor does it necessarily approximate the
universe of Web pages that library patrons visit.
FN9. Hunter drew
three different "samples" for his test. The first consisted of "50 randomly generated Web pages from
the Webcrawler search engine." The
"second sample of 50 Web pages was drawn from searches for the terms
'yahoo, warez, hotmail, sex, and MP3,' using the AltaVista.com search engine." And the "final sample of 100 Web sites was drawn from the
sites of organizations who filed amicus briefs in support of the ACLU's
challenges to the Community [sic] Decency Act (CDA) and COPA [the Children's
Online Protection Act], and from Internet portals, political Web sites,
feminist Web sites, hate speech sites, gambling sites, religious sites, gay
pride/homosexual sites, alcohol, tobacco, and drug sites, pornography sites,
new sites, violent game sites, safe sex sites, and pro and anti-abortion sites
listed on the popular Web directory, Yahoo.com."
Lemmons testified that he compiled the list of sexually
explicit sites that should have been blocked by entering the terms "free
adult sex, anal sex, oral sex, fisting lesbians, gay sex, interracial sex, big
tits, blow job, shaved pussy, and bondage" into the Google search engine
and then "surfing" through links from pages generated by the list of
sites that the search engine returned.
Using this method, he compiled a list of 197 sites that he determined
should be blocked according to the filtering programs' category definitions. Lemmons also attempted to compile a list of
"sensitive" Web sites that, although they should not have been
blocked according to the filtering programs' category definitions, might have
been mistakenly blocked. In order to do
this, he used the same method of entering terms into the Google search engine
and surfing through the results. He
used the following terms to compile this list:
"breast feeding, bondages,
fetishes, ebony, gay issues, women's health, lesbian, homosexual, vagina,
vaginal dryness, pain, anal cancer, teen issues, safe sex, penis, pregnant,
interracial, sex education, penis enlargement, breast enlargement, ... and
shave."
The two other studies, one by David Biek,
head librarian at the Tacoma Public Library's main branch, and one by Cory
Finnell of Certus Consulting Group, of Seattle, Washington, chose actual logs
of Web pages visited by library patrons during specific time periods as the
universe of Web pages to analyze. This
method, while surely not as accurate as a truly random sample of the indexed
Web would be (assuming it would be possible to take such a sample), has the
virtue of using the actual Web sites that library patrons visited during a
specific period. Because library
patrons selected the universe of Web sites that Biek and Finnell's studies
analyzed, this removes the possibility of bias resulting from the study
author's selection of the universe of sites to be reviewed. We find that the Lemmons and Hunter studies
are of little probative value because of the methodology used to select the
sample universe of Web sites to be tested.
We will therefore focus on the studies conducted by Finnell and Biek in
trying to ascertain estimates of the rates of over- and underblocking that
takes place when filters are used in public libraries.
The government hired expert witness Cory Finnell
to study the Internet logs compiled by the
public libraries systems in Tacoma, Washington; Westerville, Ohio; and
Greenville, South Carolina. Each of
these libraries uses filtering software that keeps a log of information about
individual Web site requests made by library patrons. Finnell, whose consulting firm specializes in data analysis, has
substantial experience evaluating Internet access logs generated on networked
systems. He spent more than a year
developing a reporting tool for N2H2, and, in the course of that work, acquired
a familiarity with the design and operation of Internet filtering products.
The Tacoma library uses Cyber Patrol
filtering software, and logs information only on sites that were blocked. Finnell worked from a list of all sites that
were blocked in the Tacoma public library in the month of August 2001. The Westerville library uses the Websense
filtering product, and logs information on both blocked sites and non-blocked
sites. When the logs reach a certain
size, they are overwritten by new usage logs.
Because of this overwriting feature, logs were available to Finnell only
for the relatively short period from October 1, 2001 to October 3, 2001. The Greenville library uses N2H2's filtering
product and logs both blocked sites and sites that patrons accessed. The logs
contain more than 500,000 records per day.
Because of the volume of the records, *439 Finnell restricted his
analysis to the period from August 2, 2001 to August 15, 2001.
Finnell calculated an overblocking rate for
each of the three libraries by examining
the host Web site containing each of the blocked pages. He did not employ a sampling technique, but
instead examined each blocked Web site.
If the contents of a host Web site or the pages within the Web site were
consistent with the filtering product's definition of the category under which
the site was blocked, Finnell considered it to be an accurate block. Finnell and three others, two of whom were
temporary employees, examined the Web sites to determine whether they were
consistent with the filtering companies' category definitions. Their review was, of course, necessarily
limited by: (1) the clarity of the filtering companies' category definitions; (2) Finnell's and his employees'
interpretations of the definitions; and
(3) human error. The study's
reliability is also undercut by the fact that Finnell failed to archive the
blocked Web pages as they existed either at the point that a patron in one of
the three libraries was denied access or when Finnell and his team reviewed the
pages. It is therefore impossible for
anyone to check the accuracy and consistency of Finnell's review team, or to
know whether the pages contained the same content when the block occurred as
they did when Finnell's team reviewed them.
This is a key flaw, because the results of the study depend on
individual determinations as to overblocking and underblocking, in which
Finnell and his team were required to compare what they saw on the Web pages
that they reviewed with standard definitions provided by the filtering company.
Tacoma library's Cyber Patrol software blocked 836 unique Web
sites during the month of August.
Finnell determined that 783 of those blocks were accurate and that 53
were inaccurate. [FN10] The error rate for
Cyber Patrol was therefore estimated to be 6.34%, and the true error rate was
estimated with 95% confidence to lie within the range of 4.69% to 7.99%. [FN11] Finnell and
his team reviewed 185 unique Web sites that were blocked by Westerville
Library's Websense filter during the logged period and determined that 158 of
them were accurate and that 27 of them were inaccurate. He therefore estimated
the Websense filter's overblocking rate at 14.59% with a 95% confidence
interval of 9.51% to 19.68%. Additionally, Finnell examined 1,674 unique Web
sites that were blocked by the Greenville Library's N2H2 filter during the
relevant period and determined that 1,520 were accurate and that 87 were
inaccurate. This yields an estimated
overblocking rate of 5.41% and a 95% confidence interval of 4.33% to 6.55%.
FN10. If separate
patrons attempted to reach the same Web site, or one or more patrons attempted
to access more than one page on a single Web site, Finnell counted these
attempts as a single block. For
example, the total number of blocked requests for Web pages at Tacoma Library
during the logged period was 2,812, but Finnell counted this as only 895 blocks
of unique Web sites. Of the 895 unique
blocked sites, Finnell was unable to access
59, yielding 836 unique blocked sites for his team to review.
FN11. The confidence
intervals that Finnell calculated represent the range of percentages within
which we can be 95% confident that the actual rate of overblocking in that
particular library falls. We note that
these confidence intervals assume that the time period for which the study
assessed the library's internet logs constitutes a random and representative
sample.
Finnell's methodology was materially flawed
in that it understates the rate of overblocking for the following reasons. *440 First, patrons from the three
libraries knew that the filters were operating, and may have been deterred from
attempting to access Web sites that they perceived to be "borderline"
sites, i.e., those that may or may not have been appropriately filtered
according to the filtering companies' category definitions. Second, in their cross- examination of
Finnell, the plaintiffs offered screen shots of a number of Web sites that,
according to Finnell, had been appropriately blocked, but that Finnell admitted
contained only benign materials.
Finnell's explanation was that the Web sites must have changed between
the time when he conducted the study and the time of the trial, but because he
did not archive the images as they existed when his team reviewed them for the
study, there is no way to verify this. Third, because of the way in which Finnell
counted blocked Web sites--i.e., if separate patrons attempted to reach the
same Web site, or one or more patrons attempted to access more than one page on
a single Web site, Finnell counted these attempts as a single block, see supra
note 10--his results necessarily understate the number of times that patrons
were erroneously denied access to information.
At all events, there is no doubt that
Finnell's estimated rates of overblocking, which are based on the filtering
companies' own category definitions, significantly understate the rate of
overblocking with respect to CIPA's category definitions for filtering for
adults. The filters used in the Tacoma,
Westerville, and Greenville libraries were configured to block, among other things,
images of full nudity and sexually explicit materials. There is no dispute, however, that these
categories are far broader than CIPA's categories of visual depictions that are
obscene, or child pornography, the two categories of material that libraries
subject to CIPA must certify that they filter during adults' use of the
Internet.
Finnell's study also calculated underblocking
rates with respect to the Westerville and Greenville Libraries (both of which
logged not only their blocked sites, but all sites visited by their patrons),
by taking random samples of URLs from the list of sites that were not
blocked. The study used a sample of 159
sites thatwere accessed by Westerville patrons and determined that only one of them should have been blocked
under the software's category definitions, yielding an underblocking rate of
0.6%. Given the size of the sample, the 95% confidence interval is 0% to 1.86%.
The study examined a sample of 254 Web sites accessed by patrons in Greenville
and found that three of them should have been blocked under the filtering
software's category definitions. This results in an estimated underblocking
rate of 1.2% with a 95% confidence interval ranging from 0% to 2.51%.
We do not credit Finnell's estimates of the
rates of underblocking in the Westerville and Greenville public libraries for
several reasons. First, Finnell's
estimates likely understate the actual rate of underblocking because patrons,
who knew that filtering programs were operating in the Greenville and Westerville
Libraries, may have refrained from attempting to access sites with sexually
explicit materials, or other contents that they knew would probably meet a
filtering program's blocked categories.
Second, and most importantly, we think that the formula that Finnell
used to calculate the rate of underblocking in these two libraries is not as
meaningful as the formula that information scientists typically use to
calculate a rate of recall, which we describe above in Subsection II.E.3. As
Dr. Nunberg explained, the standard method that information scientists use to
calculate a rate of recall is to sort a set of items into two groups, those
that fall into a particular category (e.g., those that *441 should have
been blocked by a filter) and those that do
not. The rate of recall is then
calculated by dividing the number of items that the system correctly identified
as belonging to the category by the total number of items in the category.
In the example above, we discussed a database
that contained 1000 photographs. Assume
that 200 of these photographs were pictures of dogs. If, for example, a classification system designed to identify
pictures of dogs identified 80 of the dog pictures and failed to identify 120,
it would have performed with a recall rate of 40%. This would be analogous to a filter that underblocked at a rate
of 60%. To calculate the recall rate of
the filters in the Westerville and Greenville public libraries in accordance
with the standard method described above, Finnell should have taken a sample of
sites from the libraries' Internet use logs (including both sites that were
blocked and sites that were not), and divided the number of sites in the sample
that the filter incorrectly failed to block by the total number of sites in the
sample that should have been blocked.
What Finnell did instead was to take a sample of sites that were not
blocked, and divide the total number of sites in this sample by the number of
sites in the sample that should have been blocked. This made the denominator that
Finnell used much larger than it would have been had he used the standard
method for calculating recall, consequently making the underblocking rate that
he calculated much lower than it would have been under the standard method. [FN12]
FN12. To illustrate
the two different methods, consider a random sample of 1010 web sites taken
from a library's Internet use log, 10 of which fall within the category that a
filter is intended to block (e.g., pornography), and suppose that the filter
incorrectly failed to block 2 of the 10 sites that it should have blocked and
did not block any sites that should not have been blocked. The standard method of quantifying the rate
of underblocking would divide the number of sites in the sample that the filter
incorrectly failed to block by the number of sites in the sample that the
filter should have blocked, yielding an underblocking rate in this example of
20%. Finnell's study, however,
calculated the underblocking rate by dividing the number of sites that the
filter incorrectly failed to block by the total number of sites in the sample
that were not blocked (whether correctly or incorrectly) yielding an
underblocking rate in this example of only .2%.
Moreover, despite the relatively low rates of
underblocking that Finnell's study found, librarians from several of the
libraries proffered by defendants that use blocking products, including
Greenville, Tacoma, and Westerville, testified that there are instances of
underblocking in their libraries. No
quantitative evidence was presented comparing the effectiveness of filters and other alternative methods used
by libraries to prevent patrons from accessing visual depictions that are
obscene, child pornography, or in the case of minors, harmful to minors.
Biek undertook a similar study of the
overblocking rates that result from the Tacoma Library's use of the Cyber
Patrol software. He began with the
3,733 individual blocks that occurred in the Tacoma Library in October 2000 and
drew from this data set a random sample of 786 URLs. He calculated two rates of
overblocking, one with respect to the Tacoma Library's policy on Internet use--
that the pictorial content of the site may not include "graphic materials
depicting full nudity and sexual acts which are portrayed obviously and
exclusively for sensational or pornographic purposes"--and the other with
respect to Cyber Patrol's own category definitions. He estimated that Cyber Patrol overblocked 4% of all Web pages in
October 2000 with respect to the definitions of the Tacoma Library's Internet *442
Policy and 2% of all pages with respect to Cyber Patrol's own category
definitions. [FN13]
FN13. According to
Biek, the sample size that he used yielded a 95% confidence interval of plus or
minus 3.11%.
It is difficult to determine how reliable
Biek's conclusions are, because he did not keep records of the raw data that he
used in his study; nor did he archive images of the Web pages as they looked
when he made the determination whether they were properly classified by the
Cyber Patrol program. Without this
information, it is impossible to verify his conclusions (or to undermine
them). And Biek's study certainly
understates Cyber Patrol's overblocking rate for some of the same reasons that
Finnell's study likely understates the true rates of overblocking used in the
libraries that he studied.
We also note that Finnell's study, which
analyzed a set of Internet logs from the Tacoma Library during which the same
filtering program was operating with the same set of blocking categories
enabled, found a significantly higher rate of overblocking than the Biek study
did. Biek found a rate of overblocking
of approximately 2% while the Finnell study estimated a 6.34% rate of
overblocking. At all events, the
category definitions employed by CIPA, at least with respect to adult
use--visual depictions that are obscene or child pornography--are narrower than
the materials prohibited by the Tacoma Library policy, and therefore Biek's
study understates the rate of overblocking with respect to CIPA's definitions
for adults.
In sum, we think that Finnell's study, while
we do not credit its estimates of underblocking, is useful because it states
lower bounds with respect to the rates of overblocking that occurred when the
Cyber Patrol, Websense, and N2H2 filters were operating in public
libraries. While these rates are
substantial--between nearly 6% and 15%--we think, for the reasons stated above,
that they greatly understate the actual
rates of overblocking that occurs, and therefore cannot be considered as
anything more than minimum estimates of the rates of overblocking that happens
in all filtering programs.
5. Methods of Obtaining Examples of Erroneously Blocked Web Sites
The plaintiffs assembled a list of several
thousand Web sites that they contend were, at the time of the study, likely to
have been erroneously blocked by one or more of four major commercial filtering
programs: SurfControl Cyber Patrol
6.0.1.47, N2H2 Internet Filtering 2.0, Secure Computing SmartFilter 3.0.0.01,
and Websense Enterprise 4.3.0. They
compiled this list using a two- step process.
First, Benjamin Edelman, an expert witness who testified before us,
compiled a list of more than 500,000 URLs and devised a program to feed them
through all four filtering programs in order to compile a list of URLs that
might have been erroneously blocked by one or more of the programs. [FN14] Second, Edelman
forwarded subsets of the list that he compiled to librarians and professors of
library science whom the plaintiffs had hired to review the blocked sites for
suitability in the public library context.
FN14. Edelman is a
Harvard University student and a systems administrator and multimedia
specialist at the Berkman Center for Internet and Society at Harvard Law
School. Despite Edelman's young age, he
has been doing consulting work on Internet-related issues for nine years, since
he was in junior high school.
Edelman assembled the list of URLs by
compiling Web pages that were blocked by the following categories in the four
programs: Cyber Patrol: Adult/Sexually Explicit; N2H2:
Adults Only, Nudity, *443 Pornography, and Sex, with
"exceptions" engaged in the categories of Education, For Kids,
History, Medical, Moderated, and Text/Spoken Only; SmartFilter: Sex, Nudity,
Mature, and Extreme; Websense: Adult Content, Nudity, and Sex.
Edelman then assembled a database of Web
sites for possible testing. He derived
this list by automatically compiling URLs from the Yahoo index of Web sites,
taking them from categories from the Yahoo index that differed significantly
from the classifications that he had enabled in each of the blocking programs
(taking, for example, Web sites from Yahoo's "Government"
category). He then expanded this list
by entering URLs taken from the Yahoo index into the Google search engine's
"related" search function, which provides the user with a list of
similar sites. Edelman also included
and excluded specific Web sites at the request of the plaintiffs' counsel.
Taking the list of more than 500,000 URLs
that he had compiled, Edelman used an automated system that he had developed to
test whether particular URLs were blocked by each of the four filtering
programs. This testing took place
between February and October 2001. He recorded the specific dates on which particular sites were blocked by particular
programs, and, using commercial archiving software, archived the contents of
the home page of the blocked Web sites (and in some instances the pages linked
to from the home page) as it existed when it was blocked. [FN15] Through this process, Edelman, whose
testimony we credit, compiled a list of 6,777 URLs that were blocked by one or
more of the four programs. Because
these sites were chosen from categories from the Yahoo directory that were
unrelated to the filtering categories that were enabled during the test (i.e.,
"Government" vs.
"Nudity"), he reasoned that they were likely erroneously
blocked. As explained in the margin,
Edelman repeated his testing and discovered that Cyber Patrol had unblocked
most of the pages on the list of 6,777 after he had published the list on his
Web site. His records indicate that an employee of SurfControl (the company
that produces Cyber Patrol software) accessed his site and presumably checked
out the URLs on the list, thus confirming Edelman's judgment that the majority
of URLs on the list were erroneously blocked. [FN16]
FN15. The archiving
process in some cases took up to 48 hours from when the page was blocked.
FN16. In October
2001, Edelman published the results of his initial testing on his Web
site. In February and March 2002 he
repeated his testing of the 6,777 URLs
originally found to be blocked by at least one of the blocking products, in
order to determine whether and to what extent the blocking product vendors had
corrected the mistakes that he publicized.
Of those URLs blocked by N2H2 in the October 2001 testing, 55.10% remained
blocked when tested by Edelman in March 2002.
Of those URLs blocked by Websense in the October 2001 testing, 76.28%
remained blocked when tested by Edelman in February 2002. Of those URLs blocked by SurfControl's Cyber
Patrol product, only 7.16% remained blocked, i.e., Cyber Patrol had unblocked
almost 93% of the Web pages originally blocked. Because the results posted to his Web site were accessed by an
employee of SurfControl (as evidenced by Edelman's records of who was accessing
his Web site), we infer that Cyber Patrol had determined that 93% of all 6,777
pages, or 6,302 Web pages, were originally wrongly blocked by the product.
Edelman forwarded the list of blocked sites
to Dr. Joseph Janes, an Assistant Professor in the Information School of the
University of Washington who also testified at trial as an expert witness. Janes reviewed the sites that Edelman
compiled to determine whether they are consistent *444 with library
collection development, i.e., whether they are sites to which a reference
librarian would, consistent with professional standards, direct a patron as a
source of information. [FN17]
FN17. Two other
expert witnesses reviewed subsets of the list of Web pages that Edelman
compiled. Dr. Michael T. Ryan, Director
of the Rare Book and Manuscript Library and of the Center for Electronic Text
and Image at the University of Pennsylvania, reviewed a list of 204 sites that
Edelman forwarded to him in order to determine their appropriateness and
usefulness in the library setting.
Because the sites that Ryan reviewed were not selected randomly (i.e.,
they were chosen by plaintiffs' counsel), his study says little about the
character of the set of 6,777 sites that Edelman compiled, or the total amount
of overblocking by the four filtering programs that Edelman used.
Anne Lipow, a practicing librarian for more than 30 years
and the director of a library consulting firm, also reviewed the same list of
204 URLs from the set that Edelman had collected for their appropriateness for
a library's collection. She categorized
sites in four different levels according to their appropriateness for a public
library's collection. Again, because these URLs were not selected randomly,
Lipow's study is not particularly relevant to the total set that Edelman
compiled, or to the total amount of overblocking by the four filtering programs
that Edelman used.
Although the methodology used to select the list of Web
pages that was forwarded to Ryan and Lipow
is problematic, Ryan's and Lipow's testimony established that many of the
erroneously blocked sites that Edelman identified would be useful and
appropriate sources of information for library patrons.
Edelman forwarded Janes a list of 6,775 Web
sites, almost the entire list of blocked sites that he collected, from which
Janes took a random sample of 859 using the SPSS statistical software
package. Janes indicated that he chose
a sample size of 859 because it would yield a 95% confidence interval of plus
or minus 2.5%. Janes recruited a group of 16 reviewers, most of whom were
current or former students at the University of Washington's Information
School, to help him identify which sites were appropriate for library use. We describe the process that he used in the
margin. [FN18] Due to the inability of a member *445
of Janes's review team to complete the reviewing process, Janes had to cut 157
Web sites out of the sample, but because the Web sites were randomly assigned
to reviewers, it is unlikely that these sites differed significantly from the
rest of the sample. That left the
sample size at 699, which widened the 95% confidence interval to plus or minus
2.8%.
FN18. All of the
reviewers that Janes recruited had some relevant experience in library
reference services or library collection development. Janes divided the reviewers into two groups,
a group of 11 less experienced reviewers, and a group of five more experienced
reviewers. Janes assigned the less
experienced group to do a first-round review with the purpose of identifying
the most obviously overblocked sites.
The more experienced group was to review the remaining sites (i.e.,
those that were not obviously overblocked) and to make final decisions
regarding these sites.
In the first round, each person evaluated two sets of
around 80 sites, and each group was evaluated by two different people. Each set of sites included the following
instructions:
Look carefully at each of the Web sites on the list. Please make a notation of any site that
appears to meet any of the following criteria:
a. Contains information similar to that already found in
libraries,
or
b. Contains information a librarian would want in the
library if s/he had unlimited funds to purchase information and unlimited shelf
space,
or
c. You would be willing to refer a patron (of any age) to
the site if the patron appeared at a reference desk seeking information about
the subject of the site. For this last
criterion, we recognize that you might not refer a young child to a Calculus
site just because it would not be useful to
that child, but you should ignore that factor.
Informational sites, such as a Calculus site, should be noted. A site that is purely erotica should not be
noted.
Sites that received "Yes" votes from both
reviewers were determined to be of sufficient interest in a library context and
removed from further analysis. Sites
receiving one or two "No" votes would go to the next round. In the first round, 243 sites received
"Yes" votes from both reviewers, while 456 sites received one or more
"No" votes or could not be found.
These 456 sites were sent forward to the second round of judging.
The instructions for the second-round reviewers were the
same as those given to the first-round reviewers, except that in section c, the
following sentence was added:
"Sites that have a commercial purpose should be included here if
they might be of use or interest to someone wishing to buy the product or
service or doing research on commercial behavior on the Internet, much as most
libraries include the Yellow Pages in their collections." The second round of review produced the
following results: 60 sites could not be found (due to broken links, 404
"not found" errors, domain for sale messages, etc.), 231 sites were
judged "Yes," and 165 judged "No."
Of the total 699 sites reviewed, Janes's team
concluded that 165 of them, or 23.6%
percent of the sample, were not of any value in the library context (i.e., no
librarian would, consistent with professional standards, refer a patron to
these sites as a source of information).
They were unable to find 60 of the Web sites, or 8.6% of the
sample. Therefore, they concluded that
the remaining 474 Web sites, or 67.8% of the sample, were examples of
overblocking with respect to materials that are appropriate sources of
information in public libraries.
Applying a 95% confidence interval of plus or minus 2.8%, the study
concluded that we can be 95% confident that the actual percentage of sites in
the list of 6,775 sites that are appropriate for use in public libraries is
somewhere between 65.0% and 70.6%. In other words, we can be 95% certain that
the actual number of sites out of the 6,775 that Edelman forwarded to Janes
that are appropriate for use in public libraries (under Janes's standard) is
somewhere between 4,403 and 4,783.
The government raised some valid criticisms
of Janes's methodology, attacking in particular the fact that, while sites that
received two "yes" votes in the first round of voting were determined
to be of sufficient interest in a library context to be removed from further
analysis, sites receiving one or two "no" votes were sent to the next
round. The government also correctly
points out that results of Janes's study can be generalized only to the
population of 6,775 sites that Edelman forwarded to Janes. Even taking these criticisms into account,
and discounting Janes's numbers appropriately, we credit Janes's study as confirming that Edelman's set of 6,775 Web
sites contains at least a few thousand URLs that were erroneously blocked by
one or more of the four filtering programs that he used, whether judged against
CIPA's definitions, the filters' own category criteria, or against the standard
that the Janes study used. Edelman
tested only 500,000 unique URLs out of the 4000 times that many, or two
billion, that are estimated to exist in the indexable Web. Even assuming that
Edelman chose the URLs that were most likely to be erroneously blocked by
commercial filtering programs, we conclude that many times the number of pages
that Edelman identified are erroneously blocked by one or more of the filtering
programs that he tested.
Edelman's and Janes's studies provide
numerous specific examples of Web pages that were erroneously blocked by one or
more filtering programs. The Web pages
that were erroneously blocked by one or more of the filtering programs do not
fall into any neat patterns; they range
widely in subject matter, and it is difficult to tell why they may have been
overblocked. The list that Edelman
compiled, for example, *446 contains Web pages relating to religion,
politics and government, health, careers, education, travel, sports, and many other
topics. In the next section, we provide
examples from each of these categories.
6. Examples of Erroneously Blocked Web Sites
Several of the erroneously blocked Web sites
had content relating to churches, religious
orders, religious charities, and religious fellowship organizations. These
included the following Web sites: the
Knights of Columbus Council 4828, a Catholic men's group associated with St.
Patrick's Church in Fallon, Nevada, http:// msnhomepages.talkcity.com/
SpiritSt/ kofc4828, which was blocked by Cyber Patrol in the
"Adult/Sexually Explicit" category;
the Agape Church of Searcy, Arkansas, http://www.agapechurch.com,
which was blocked by Websense as "Adult Content"; the home page of the Lesbian and Gay Havurah
of the Long Beach, California Jewish Community Center, http://
www.compupix.com/gay/havurah. htm, which was blocked by N2H2 as
"Adults Only, Pornography," by Smartfilter as "Sex," and by
Websense as "Sex"; Orphanage
Emmanuel, a Christian orphanage in Honduras that houses 225 children, http://
home8.inet.tele.dk/rfb5y(2)27 viva, which was blocked by Cyber Patrol in
the "Adult/Sexually Explicit" category; Vision Art Online, which sells wooden wall hangings for the home
that contain prayers, passages from the Bible, and images of the Star of David,
http://www.visionartonline.com, which was blocked in Websense's
"Sex" category; and the home
page of Tenzin Palmo, a Buddhist nun, which contained a description of her
project to build a Buddhist nunnery and international retreat center for women,
http://www.tenzinpalmo.com, which was categorized as "Nudity"
by N2H2.
Several blocked sites also contained
information about governmental entities or specific political candidates, or
contained political commentary. These included:
the Web site for Kelley Ross, a Libertarian candidate for the California
State Assembly, http://www.friesian.com/ross/ ca40, which N2H2
blocked as "Nudity"; the Web
site for Bob Coughlin, a town selectman in Dedham, Massachusetts, http://www.bobcoughlin.org,
which was blocked under N2H2's "Nudity" category; a list of Web sites containing information
about government and politics in Adams County, Pennsylvania, http://
www.geocities.com/adamscopa, which was blocked by Websense as
"Sex"; the Web site for
Wisconsin Right to Life, http://www.wrtl.org, which N2H2 blocked as
"Nudity"; a Web site that
promotes federalism in Uganda, http://federo.com, which N2H2 blocked as
"Adults Only, Pornography";
"Fight the Death Penalty in the USA," a Danish Web site
dedicated to criticizing the American system of capital punishment, http://www.fdp.dk,
which N2H2 blocked as "Pornography"; and "Dumb Laws," a
humor Web site that makes fun of outmoded laws, http:// www.dumblaws.com,
which N2H2 blocked under its "Sex" category.
Erroneously blocked Web sites relating to
health issues included the following: a
guide to allergies, http://www.x-sitez.com/allergy, which was
categorized as "Adults Only, Pornography" by N2H2; a health question and answer site sponsored
by Columbia University, http:// www.goaskalice.com.columbia.edu, which
was blocked as "Sex" by N2H2, and as "Mature" by
Smartfilter; the Western Amputee
Support Alliance Home Page, http://www.usinter.net/wasa, which
was *447 blocked by N2H2 as "Pornography"; the Web site of the Willis-Knighton Cancer
Center, a Shreveport, Louisiana cancer treatment facility, http://cancerftr.wkmc.com,
which was blocked by Websense under the "Sex" category; and a site dealing with halitosis, http://
www.dreamcastle.com/tungs, which was blocked by N2H2 as "Adults,
Pornography," by Smartfilter as "Sex," by Cyber Patrol as
"Adult/Sexually Explicit," and by Websense as "Adult
Content."
The filtering programs also
erroneously blocked several Web sites having to do with education and
careers. The filtering programs blocked
two sites that provide information on home schooling. "HomEduStation--the Internet Source for Home
Education," http://www.perigee.net/mcmullen/homedustation/,
was categorized by Cyber Patrol as "Adult/Sexually Explicit." Smartfilter blocked "Apricot: A Web site made by and for home
schoolers," http://apricotpie.com, as "Sex." The
programs also miscategorized several career-related sites. "Social Work
Search," http://www.socialworksearch.com/, is a directory
for social workers that Cyber Patrol placed in its "Adult/Sexually
Explicit" category. The "Gay
and Lesbian Chamber of Southern Nevada," http:// www.lambdalv.com,
"a forum for the business community to develop relationships within the
Las Vegas lesbian, gay, transsexual, and bisexual community" was blocked
by N2H2 as "Adults Only, Pornography." A site for aspiring dentists, http://www.vvm.com/bond/home.
htm, was blocked by Cyber Patrol in its "Adult/Sexually Explicit"
category.
The
filtering programs erroneously blocked many travel Web sites, including: the Web site for the Allen Farmhouse Bed
& Breakfast of Alleghany County, North Carolina, http://planet-nc.com/Beth/index.html,
which Websense blocked as "Adult Content"; Odysseus Gay Travel, a travel company serving gay men, http://www.odyusa.com,
which N2H2 categorized as "Adults Only, Pornography"; Southern
Alberta Fly Fishing Outfitters, http://albertaflyfish.com, which N2H2
blocked as "Pornography"; and
"Nature and Culture Conscious Travel," a tour operator in Namibia, http://www.trans-namibia-tours.
com, which was categorized as "Pornography" by N2H2.
The filtering programs also miscategorized
a large number of sports Web sites.
These included: a site devoted
to Willie O'Ree, the first African American player in the National Hockey
League, http://www.missioncreep.com/ mw/oree.html, which Websense
blocked under its "Nudity" category;
the home page of the Sydney University Australian Football Club, http://
www.tek.com.au/suafc, which N2H2 blocked as "Adults Only, Pornography,"
Smartfilter blocked as "Sex," Cyber Patrol blocked as
"Adult/Sexually Explicit" and Websense blocked as
"Sex"; and a fan's page
devoted to the Toronto Maple Leafs hockey team, http://www.torontomapleleafs.atmypage.com,
which N2H2 blocked under the "Pornography" category.
7. Conclusion: The
Effectiveness of Filtering Programs
Public libraries have adopted a variety of
means of dealing with problems created by
the provision of Internet access. The
large amount of sexually explicit speech that is freely available on the
Internet has, to varying degrees, led to patron complaints about such matters
as unsought exposure to offensive material, incidents of staff and patron
harassment by individuals viewing sexually explicit content on the *448
Internet, and the use of library computers to access illegal material, such as
child pornography. In some libraries,
youthful library patrons have persistently attempted to use the Internet to
access hardcore pornography.
Those public libraries that have responded to
these problems by using software filters have found such filters to provide a
relatively effective means of preventing patrons from accessing sexually
explicit material on the Internet. Nonetheless, out of the entire universe of
speech on the Internet falling within the filtering products' category
definitions, the filters will incorrectly fail to block a substantial amount of
speech. Thus, software filters have not
completely eliminated the problems that public libraries have sought to address
by using the filters, as evidenced by frequent instances of underblocking. Nor is there any quantitative evidence of
the relative effectiveness of filters and the alternatives to filters that are
also intended to prevent patrons from accessing illegal content on the
Internet.
Even more importantly (for this case),
although software filters provide a relatively cheap and effective, albeit
imperfect, means for public libraries to prevent
patrons from accessing speech that falls within the filters' category
definitions, we find that commercially available filtering programs erroneously
block a huge amount of speech that is protected by the First Amendment. Any currently available filtering product
that is reasonably effective in preventing users from accessing content within
the filter's category definitions will necessarily block countless thousands of
Web pages, the content of which does not match the filtering company's category
definitions, much less the legal definitions of obscenity, child pornography,
or harmful to minors. Even Finnell, an
expert witness for the defendants, found that between 6% and 15% of the blocked
Web sites in the public libraries that he analyzed did not contain content that
meets even the filtering products' own definitions of sexually explicit
content, let alone CIPA's definitions.
This phenomenon occurs for a number of
reasons explicated in the more detailed findings of fact supra. These include limitations on filtering
companies' ability to: (1) harvest Web
pages for review; (2) review and
categorize the Web pages that they have harvested; and (3) engage in regular re-review of the Web pages that they
have previously reviewed. The primary
limitations on filtering companies' ability to harvest Web pages for review is
that a substantial majority of pages on the Web are not indexable using the
spidering technology that Web search engines use, and that together, search
engines have indexed only around half of the Web pages that are theoretically
indexable. The fast rate of growth in the
number of Web pages also limits filtering companies' ability to harvest pages
for review. These shortcomings
necessarily result in significant underblocking.
Several limitations on filtering companies'
ability to review and categorize the Web pages that they have harvested also
contribute to over- and underblocking.
First, automated review processes, even those based on "artificial
intelligence," are unable with any consistency to distinguish accurately
material that falls within a category definition from material that does
not. Moreover, human review of URLs is
hampered by filtering companies' limited staff sizes, and by human error or
misjudgment. In order to deal with the
vast size of the Web and its rapid rates of growth and change, filtering
companies engage in several practices that are necessary to reduce
underblocking, but inevitably result in overblocking. These include: *449
(1) blocking whole Web sites even when only a small minority of their pages
contain material that would fit under one of the filtering company's categories
(e.g., blocking the Salon.com site because it contains a sex column); (2) blocking by IP address (because a single
IP address may contain many different Web sites and many thousands of pages of
heterogenous content); and (3) blocking loophole sites such as translator sites
and cache sites, which archive Web pages that have been removed from the Web by
their original publisher.
Finally, filtering companies' failure to engage in regular
re-review of Web pages that they have already categorized (or that they have
determined do not fall into any category) results in a substantial amount of
over- and underblocking. For example,
Web publishers change the contents of Web pages frequently. The problem also arises when a Web site goes
out of existence and its domain name or IP address is reassigned to a new Web
site publisher. In that case, a
filtering company's previous categorization of the IP address or domain name would
likely be incorrect, potentially resulting in the over- or underblocking of
many thousands of pages.
The inaccuracies that result from these
limitations of filtering technology are quite substantial. At least tens of thousands of pages of the
indexable Web are overblocked by each of the filtering programs evaluated by
experts in this case, even when considered against the filtering companies' own
category definitions. Many erroneously
blocked pages contain content that is completely innocuous for both adults and
minors, and that no rational person could conclude matches the filtering
companies' category definitions, such as "pornography" or
"sex."
The number of overblocked sites is of course
much higher with respect to the definitions of obscenity and child pornography
that CIPA employs for adults, since the filtering products' category
definitions, such as "sex" and "nudity," encompass vast
amounts of Web pages that are neither child pornography nor obscene.
Thus, the number of pages of constitutionally protected speech blocked
by filtering products far exceeds the many thousands of pages that are
overblocked by reference to the filtering products' category definitions.
No presently conceivable technology can make
the judgments necessary to determine whether a visual depiction fits the legal
definitions of obscenity, child pornography, or harmful to minors. Given the state of the art in filtering and
image recognition technology, and the rapidly changing and expanding nature of
the Web, we find that filtering products' shortcomings will not be solved
through a technical solution in the foreseeable future. [FN19] *450 In
sum, filtering products are currently unableto block only visual depictions
that are obscene, child pornography, or harmful to minors (or, only content
matching a filtering product's category definitions) while simultaneously
allowing access to all protected speech (or, all content not matching the
blocking product's category definitions).
Any software filter that is reasonably effective in blocking access to
Web pages that fall within its category definitions will necessarily
erroneously block a substantial number of Web pages that do not fall within its
category definitions.
FN19. Although it
was not proffered as evidence in this trial, (and hence we do not rely on it to
inform our findings), we note that Youth, Pornography, and the Internet,
a congressionally commissioned study by the National
Research Council, a division of the National Academies of Science, see Pub.L.
105-314, Title X, Sec. 901, comes to a conclusion
similar to the one that we reach regarding the effectiveness of Internet
filters. The commission concludes that:
All filters--those of today and for the foreseeable
future--suffer (and will suffer) from some degree of overblocking (blocking
content that should be allowed through) and some degree of underblocking (passing
content that should not be allowed through).
While the extent of overblocking and underblocking will vary with the
product (and may improve over time), underblocking and overblocking result from
numerous sources, including the variability in the perspectives that humans
bring to the task of judging content.
Youth, Pornography, and the Internet (Dick Thornburgh & Herbert S. Lin,
eds., 2002), available at http://bob.nap.edu/html/youth--internet/.
III. Analytic
Framework for the Opinion: The Centrality
of Dole and the
Role of the Facial
Challenge
Both the plaintiffs and the government agree
that, because this case involves a challenge to the constitutionality of the
conditions that Congress has set on state actors' receipt of federal funds, the
Supreme Court's decision in South
Dakota v. Dole,
483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987),
supplies the proper threshold analytic
framework. The constitutional source of
Congress's spending power is Article I, §
8, cl. 1, which provides that "Congress shall have Power ... to pay
the Debts and provide for the common Defence and general Welfare of the United
States." In Dole, the Court upheld the constitutionality of a federal
statute requiring the withholding of federal highway funds from any state with
a drinking age below 21. Id.
at 211-12, 107 S.Ct. 2793. In sustaining the provision's
constitutionality, Dole articulated four general constitutional limitations on
Congress's exercise of the spending power.
First, "the exercise of the spending
power must be in pursuit of 'the general welfare.' " Id.
at 207, 107 S.Ct. 2793. Second, any conditions that Congress sets on states' receipt of
federal funds must be sufficiently clear to enable recipients "to exercise
their choice knowingly, cognizant of the consequences of their
participation." Id. (internal quotation marks and citation omitted). Third, the conditions on the receipt of
federal funds must bear some relation to the purpose of the funding
program. Id. And finally, "other constitutional provisions may
provide an independent bar to the conditional grant of federal funds."Id.
at 208, 107 S.Ct. 2793. In particular, the spending power "may not be used to induce
the States to engage in activities that would themselves be
unconstitutional. Thus, for example, a
grant of federal funds conditioned on invidiously discriminatory state action or the infliction of cruel and unusual
punishment would be an illegitimate exercise of the Congress' broad spending
power." Id.
at 210, 107 S.Ct. 2793.
[1] Plaintiffs do not contend that CIPA runs afoul of the
first three limitations. However, they
do allege that CIPA is unconstitutional under the fourth prong of Dole because it will induce public libraries to violate the
First Amendment. [FN20] Plaintiffs therefore submit that the First
Amendment "provide[s] an independent bar to the conditional grant of
federal funds" created by CIPA. Id.
at 208, 107 S.Ct. 2793. More specifically, they argue that by conditioning public
libraries' receipt of federal funds on the use of software filters, CIPA will
induce public libraries to violate the First Amendment *451 rights of Internet
content-providers to disseminate constitutionally protected speech to library
patrons via the Internet, and the correlative First Amendment rights of public
library patrons to receive constitutionally protected speech on the Internet. [FN21]
FN20. Because we
find that the plaintiff public libraries are funded and controlled by state and
local governments, they are state actors, subject to the constraints of the
First Amendment, as incorporated by the Due Process Clause of the Fourteenth
Amendment.
FN21. The Supreme Court has recognized that the First Amendment
encompasses not only the right to speak, but also the right to receive information. See Reno
v. ACLU,
521 U.S. 844, 874, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (invalidating a statute because it "effectively
suppresses a large amount of speech that adults have a constitutional right to
receive and to address to one another");
Stanley
v. Georgia,
394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) ("[The] right to receive information and ideas,
regardless of their social worth ... is fundamental to our free
society."); see also Bd.
of Educ. v. Pico,
457 U.S. 853, 867-68, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982) (plurality opinion) ("[T]he right to receive ideas
follows ineluctably from the sende'sr First Amendment right to send
them.").
The government concedes that under the Dole framework, CIPA is facially invalid if its conditions will
induce public libraries to violate the First Amendment. The government and the plaintiffs disagree,
however, on the meaning of Dole's "inducement" requirement in the context of a
First Amendment facial challenge to the conditions that Congress places on
state actors' receipt of federal funds.
The government contends that because plaintiffs are bringing a facial
challenge, they must show that under no circumstances is it possible for a
public library to comply with CIPA's conditions without violating the First Amendment. The plaintiffs respond that even if it is
possible for some public libraries to comply with CIPA without violating the First
Amendment, CIPA is facially invalid if it "will result in the
impermissible suppression of a substantial amount of protected speech."
Because it was clear in Dole that the states could comply with the challenged
conditions that Congress attached to the receipt of federal funds without
violating the Constitution, the Dole Court did not have occasion to explain fully what it means
for Congress to use the spending power to "induce [recipients] to engage
in activities that would themselves be unconstitutional." Dole,
483 U.S. at 210, 107 S.Ct. 2793; see id.
at 211, 107 S.Ct. 2793 ("Were South Dakota
to succumb to the blandishments offered by Congress and raise its drinking age
to 21, the State's action in so doing would not violate the constitutional
rights of anyone."). Although the
proposition that Congress may not pay state actors to violate citizens' First
Amendment rights is unexceptionable when stated in the abstract, it is unclear
what exactly a litigant must establish to facially invalidate an exercise of
Congress's spending power on this ground.
[2] In general, it is well-established that a court may
sustain a facial challenge to a statute only if the plaintiff demonstrates that
the statute admits of no constitutional application. See United
States v. Salerno,
481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ("A facial challenge to a legislative Act is, of course, the most
difficult challenge to mount successfully, since the challenger must establish
that no set of circumstances exists under which the Act would be
valid."); see also Bowen
v. Kendrick,
487 U.S. 589, 612, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988) ("It has not been the Court's practice, in
considering facial challenges to statutes of this kind, to strike them down in
anticipation that particular applications may result in unconstitutional use of
funds.") (internal quotation marks and citation omitted).
First Amendment overbreadth doctrine creates
a limited exception to this rule by permitting facial invalidation of a statute
*452 that burdens a substantial amount of protected speech, even if the
statute may be constitutionally applied in particular circumstances. "The Constitution gives significant
protection from overbroad laws that chill speech within the First Amendment's
vast and privileged sphere. Under this
principle, [a law] is unconstitutional on its face if it prohibits a
substantial amount of protected expression." Ashcroft
v. Free Speech Coalition,
--- U.S. ----, 122 S.Ct. 1389, 1399, 152 L.Ed.2d 403 (2002); see also Broadrick
v. Oklahoma,
413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). This more liberal
test of a statute's facial validity under the First Amendment stems from the
recognition that where a statute's reach contemplates a number of both
constitutional and unconstitutional applications, the law's sanctions may deter
individuals from challenging the law's
validity by engaging in constitutionally protected speech that may nonetheless
be proscribed by the law. Without an
overbreadth doctrine, "the contours of regulation would have to be
hammered out case by case--and tested only by those hardy enough to risk criminal
prosecution to determine the proper scope of regulation." Dombrowski
v. Pfister,
380 U.S. 479, 487, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); see also Brockett
v. Spokane Arcades, Inc.,
472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985) ("[A]n individual whose own speech or expressive
conduct may validly be prohibited or sanctioned is permitted to challenge a
statute on its face because it also threatens others not before the
court--those who desire to engage in legally protected expression but who may
refrain from doing so rather than risk prosecution or undertake to have the law
declared partially invalid.").
Plaintiffs argue that the overbreadth
doctrine is applicable here, since CIPA
"threatens to chill free speech--because it will censor a
substantial amount of protected speech, because it is vague, and because the
law creates a prior restraint...." Unlike the statutes typically
challenged as facially overbroad, however, CIPA does not impose criminal
penalties on those who violate its conditions.
Cf. Free
Speech Coalition,
--- U.S. at ----, 122 S.Ct. at 1398 ("With
these severe penalties in force, few legitimate movie producers or book
publishers, or few other speakers in any capacity, would risk distributing images in or near the uncertain reach of this
law."). Thus, the rationale for
permitting facial challenges to laws that may be constitutionally applied in
some instances is less compelling in cases such as this, which involve
challenges to Congress's exercise of the spending power, than in challenges to
criminal statutes.
Nonetheless, "even minor punishments can
chill protected speech," id., and absent the ability to challenge CIPA on its face, public
libraries that depend on federal funds may decide to comply with CIPA's terms,
thereby denying patrons access to substantial amounts of constitutionally
protected speech, rather than refusing to comply with CIPA's terms and
consequently losing the benefits of federal funds. See 47
C.F.R. § 54.520(e)(1) ("A school or library that knowingly fails to ensure
the use of computers in accordance with the certifications required by this
section, must reimburse any funds and discounts received under the federal
universal support service support mechanism for schools and libraries for the
period in which there was noncompliance."). Even in cases where the only penalty for failure to comply with a
statute is the withholding of federal funds, the Court has sustained facial
challenges to Congress's exercise of the spending power. See, e.g., Legal
Servs. Corp. v. Velazquez,
531 U.S. 533, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001)
(declaring unconstitutional on its face a federal *453 statute
restricting the ability of legal services providers who receive federal funds to engage in activity protected by the First
Amendment).
The Court's unconstitutional conditions
cases, such as Velazquez, are not strictly controlling, since they do not require a
showing that recipients who comply with the conditions attached to federal
funding will, as state actors, violate others' constitutional rights, as is the
case under the fourth prong of Dole. However, they are highly instructive.
The Supreme Court's pronouncements in the
unconstitutional conditions cases on what is necessary for a plaintiff to mount
a successful First Amendment facial challenge to an exercise of Congress's
spending power have not produced a seamless web. For example, in Rust
v. Sullivan,
500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991), the Court rejected a First Amendment facial challenge to federal
regulations prohibiting federally funded healthcare clinics from providing
counseling concerning theuse of abortion as a method of family planning,
explaining that:
Petitioners are challenging the facial validity of
the regulations. Thus, we are concerned
only with the question whether, on their face, the regulations are both
authorized by the Act and can be construed in such a manner that they can be
applied to a set of individuals without infringing upon constitutionally
protected rights. Petitioners face a
heavy burden in seeking to have the regulations invalidated as facially
unconstitutional.... The fact that the regulations might operate unconstitutionally
under some conceivable set of circumstances
is insufficient to render them wholly invalid.
Id.
at 183, 111 S.Ct. 1759 (internal quotation marks,
alterations, and citation omitted). In
contrast, NEA
v. Finley,
524 U.S. 569, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998), which also involved a facial First Amendment challenge to an exercise
of Congress's spending power, articulated a somewhat more liberal test of
facial validity than Rust, explaining that "[t]o prevail, respondents must
demonstrate a substantial risk that application of the provision will lead to
the suppression of speech." Id.
at 580, 118 S.Ct. 2168.
Against this background, it is unclear to us
whether, to succeed in facially invalidating CIPA on the grounds that it will
"induce the States to engage in activities that would themselves be
unconstitutional," Dole,
483 U.S. at 210, 107 S.Ct. 2793, plaintiffs must
show that it is impossible for public libraries to comply with CIPA's
conditions without violating the First Amendment, or rather simply that CIPA
will effectively restrict library patrons' access to substantial amounts of
constitutionally protected speech, therefore causing many libraries to violate
the First Amendment. However, we need
not resolve this issue. Rather, we may
assume without deciding, for purposes of this case, that a facial challenge to
CIPA requires plaintiffs to show that any public library that complies with
CIPA's conditions will necessarily violate the First Amendment and, as
explained in detail below, we believe that
CIPA's constitutionality fails even under this more restrictive test of facial
validity urged on us by the government.
Because of the inherent limitations in filtering technology, public
libraries can never comply with CIPA without blocking access to a substantial
amount of speech that is both constitutionally protected and fails to meet even
the filtering companies' own blocking criteria. We turn first to the governing legal principles to be applied to
the facts in order to determine whether the First Amendment permits a library
to use the filtering technology mandated by CIPA.
*454 IV.
Level of Scrutiny Applicable to Content-based Restrictions on
Internet Access in Public Libraries
In analyzing the constitutionality of a
public library's use of Internet filtering software, we must first identify the
appropriate level of scrutiny to apply to this restriction on patrons' access
to speech. While plaintiffs argue that
a public library's use of such filters is subject to strict scrutiny, the
government maintains that the applicable standard is rational basis
review. If strict scrutiny applies, the
government must show that the challenged restriction on speech is narrowly
tailored to promote a compelling government interest and that no less restrictive
alternative would further that interest.
United
States v. Playboy Entm't Group, Inc.,
529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). In contrast,
under rational basis review, the challenged restriction need only be
reasonable; the government interest that the restriction
serves need not be compelling; the
restriction need not be narrowly tailored to serve that interest; and the restriction "need not be the
most reasonable or the only reasonable limitation." Cornelius
v. NAACP Legal Def. & Educ. Fund,
473 U.S. 788, 808, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985).
[3] Software filters, by definition, block access to speech on
the basis of its content, and content-based restrictions on speech are
generally subject to strict scrutiny. See
Playboy,
529 U.S. at 813, 120 S.Ct. 1878 ("[A]
content-based speech restriction ... can stand only if it satisfies strict
scrutiny."). Strict scrutiny does
not necessarily apply to content-based restrictions on speech, however, where
the restrictions apply only to speech on government property, such as public libraries. "[I]t is ... well settled that the government
need not permit all forms of speech on property that it owns and
controls." Int'l
Soc'y for Krishna Consciousness, Inc. v. Lee,
505 U.S. 672, 678 (1992). We perforce turn to a discussion of public
forum doctrine.
A. Overview of Public Forum Doctrine
[4] The government's power to restrict speech on its own
property is not unlimited. Rather,
under public forum doctrine, the extent to which the First Amendment permits
the government to restrict speech on its own property depends on the character
of the forum that the government has created.
See Cornelius
v. NAACP Legal Def. & Educ. Fund, Inc.,
473 U.S. 788, 105 S.Ct. 3439,
87 L.Ed.2d 567 (1985). Thus, the First Amendment affords greater deference to
restrictions on speech in those areas considered less amenable to free
expression, such as military bases, see Greer
v. Spock,
424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976),
jail grounds, see Adderley
v. Florida,
385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966),
or public airport terminals, see Int'l
Soc'y for Krishna Consciousness, Inc. v. Lee,
505 U.S. 672, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992), than to restrictions on speech in state universities, see Rosenberger
v. Rector & Visitors of Univ. of Va.,
515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), or streets, sidewalks and public parks, see Frisby
v. Schultz,
487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988); Hague
v. CIO,
307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939).
The Supreme Court has identified three types
of fora for purposes of identifying the level of First Amendment scrutiny
applicable to content-based restrictions on speech on government property: traditional public fora, designated public
fora, and nonpublic fora. Traditional
public fora include sidewalks, squares, and public parks:
[S]treets and parks ... have immemorially been held in
trust for the use of the *455 public and, time out of mind, have been
used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions. Such use
of the streets and public places has, from ancient times, been a part of the
privileges, immunities, rights, and liberties of citizens.
Hague,
307 U.S. at 515, 59 S.Ct. 954. "In these quintessential public forums,
... [f]or the State to enforce a content-based exclusion it must show that its
regulation is necessary to serve a compelling state interest and that it is
narrowly drawn to achieve that end."
Perry
Educ. Ass'n v. Perry Local Educs. Ass'n,
460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); see also Int'l
Soc'y for Krishna Consciousness,
505 U.S. at 678, 112 S.Ct. 2701
("[R]egulation of speech on government property that has traditionally
been available for public expression is subject to the highest
scrutiny."); Frisby,
487 U.S. at 480, 108 S.Ct. 2495 ("[W]e have
repeatedly referred to public streets as the archetype of a traditional public
forum.").
A second category of fora, known as
designated (or limited) public fora,
"consists of public property which the State has opened for use by
the public as a place for expressive activity." Perry,
460 U.S. at 46, 103 S.Ct. 948. Whereas any
content-based restriction on the use of traditional public fora is subject to
strict scrutiny, the state is generally permitted, as long as it does not
discriminate on the basis of viewpoint, to limit a designated public forum to
certain speakers or the discussion of certain subjects. See Perry,
460 U.S. at 45 n. 7, 103 S.Ct. 948. Once it has
defined the limits of a designated public forum, however, "[r]egulation of
such property is subject to the same limitations as that governing a
traditional public forum." Int'l
Soc'y for Krishna Consciousness,
505 U.S. at 678, 112 S.Ct. 2701. Examples of designated
fora include university meeting facilities, see Widmar
v. Vincent,
454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981),
school board meetings, see City
of Madison Joint School Dist. v. Wisc. Employment Relations Comm'n,
429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976),
and municipal theaters, see Southeastern
Promotions, Ltd. v. Conrad,
420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975).
The third category, nonpublic fora, consists
of all remaining public property.
"Limitations on expressive activity conducted on this last category
of property must survive only a much more limited review. The challenged regulation need only be
reasonable, as long as the regulation is not an effort to suppress the
speaker's activity due to disagreement with the speaker's view." Int'l
Soc'y for Krishna Consciousness,
505 U.S. at 679, 112 S.Ct. 2701.
B. Contours of the Relevant Forum: the Library's Collection as a Whole or the
Provision of Internet Access?
[5] To apply public forum doctrine to this case, we must first
determine whether the appropriate forum for analysis is the library's
collection as a whole, which includes both print and electronic resources, or
the library's provision of Internet access.
Where a plaintiff seeks limited access, for expressive purposes, to
governmentally controlled property, the Supreme Court has held that the
relevant forum is defined not by the physical limits of the government property at issue, but rather by
the specific access that the plaintiff seeks:
Although ... as an initial matter a speaker must seek
access to public property or to private property dedicated to public use to
evoke First Amendment concerns, forum analysis is not completed merely by
identifying the government *456 property at issue. Rather, in defining the forum we have
focused on the access sought by the speaker.
When speakers seek general access to public property, the forum encompasses
that property. In cases in which limited
access is sought, our cases have taken a more tailored approach to ascertaining
the perimeters of a forum within the confines of the government property.
Cornelius
v. NAACP Legal Def. & Educ. Fund, Inc.,
473 U.S. 788, 801, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985).
Thus, in Cornelius, where the plaintiffs were legal defense and political
advocacy groups seeking to participate in the Combined Federal Campaign charity
drive, the Court held that the relevant forum, for First Amendment purposes,
was not the entire federal workplace, but rather the charity drive itself. Id.
at 801, 105 S.Ct. 3439. Similarly, in Perry
Education Association v. Perry Local Educators' Association,
460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983),
which addressed a union's right to access a public school's internal mail
system and teachers' mailboxes, the Court identified the relevant forum as the school's mail system, not the public
school as a whole. In Widmar
v. Vincent,
454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981),
in which a student group challenged a state university's restrictions on use of
its meeting facilities, the Court identified the relevant forum as the meeting
facilities to which the plaintiffs sought access, not the state university
generally. And in Christ's
Bride Ministries, Inc. v. SEPTA,
148 F.3d 242 (3d Cir.1998), involving a First
Amendment challenge to the removal of advertisements from subway and commuter
rail stations, the Third Circuit noted that the forum at issue was not the rail
and subway stations as a whole, but rather the advertising space within the stations. Id.
at 248.
Although these cases dealt with the problem of identifying the relevant
forum where speakers are claiming a right of access, we believe that the
same approach applies to identifying the relevant forum where the parties
seeking access are listeners or readers.
In this case, the patron plaintiffs are not
asserting a First Amendment right to compel public libraries to acquire certain
books or magazines for their print collections. Nor are the Web site plaintiffs claiming a First Amendment right
to compel public libraries to carry print materials that they publish. Rather,
the right at issue in this case is the specific right of library patrons to
access information on the Internet, and the specific right of Web publishers to
provide library patrons with information via the Internet. Thus, the
relevant forum for analysis is not the library's entire collection, which
includes both print and electronic media, such as the Internet, but rather the
specific forum created when the library provides its patrons with Internet
access.
Although a public library's provision of
Internet access does not resemble the conventional notion of a forum as a
well-defined physical space, the same First Amendment standards apply. See Rosenberger
v. Rector & Visitors of Univ. of Va.,
515 U.S. 819, 830, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (holding that a state university's student activities fund
"is a forum more in a metaphysical than a spatial or geographic sense, but
the same principles are applicable");
see also Cornelius,
473 U.S. at 801, 105 S.Ct. 3439 (identifying the
Combined Federal Campaign charity drive as the relevant unit of analysis for
application of public forum doctrine).
C. Content-based Restrictions in Designated Public Fora
[6] Unlike nonpublic fora such as airport terminals, see *457Int'l
Soc'y for Krishna Consciousness, Inc.
v. Lee,
505 U.S. 672, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992), military bases, see Greer
v. Spock,
424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976),
jail grounds, see Adderley
v. Florida,
385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966),
the federal workplace, see Cornelius
v. NAACP Legal Def. & Educ. Fund,
473 U.S. 788, 805, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985), and public transit vehicles, see Lehman
v. City of
Shaker Heights,
418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974),
the purpose of a public library in general, and the provision of Internet
access within a public library in particular, is "for use by the public
... for expressive activity," Perry
Educ. Ass'n v. Perry Local Educs. Ass'n,
460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), namely, the dissemination and receipt by the public of a
wide range of information. We are
satisfied that when the government provides Internet access in a public
library, it has created a designated public forum. See Mainstream
Loudoun v. Bd. of Trustees of the Loudoun County Library,
24 F.Supp.2d 552, 563 (E.D.Va.1998); cf. Kreimer
v. Bureau of Police,
958 F.2d 1242, 1259 (3d Cir.1992) (holding that a
public library is a limited public forum).
Relying on those cases that have recognized
that government has leeway, under the First Amendment, to limit use of a
designated public forum to narrowly specified purposes, and that content-based
restrictions on speech that are consistent with those purposes are subject only
to rational basis review, the government argues for application of rational
basis review to public libraries' decisions about which content to make
available to their patrons via the Internet.
See Rosenberger,
515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) ("The necessities of confining a forum to the limited
and legitimate purposes for which it was created may justify the State in
reserving it for certain groups or for the discussion of certain
topics."); Perry,
460 U.S. at
46 n. 7, 103 S.Ct. 948 (1983) ("A public
forum may be created for a limited purpose such as use by certain groups ... or
for the discussion of certain subjects.").
In particular, the government forcefully
argues that a public library's decision to limit the content of its digital
offerings on the Internet should be subject to no stricter scrutiny than its
decisions about what content to make available to its patrons through the
library's print collection. According to the government, just as a public
library may choose to acquire books about gardening but not golf, without
having to show that this content- based restriction on patrons' access to
speech is narrowly tailored to further a compelling state interest, so may a
public library make content-based decisions about which speech to make
available on the Internet, without having to show that such a restriction
satisfies strict scrutiny.
Plaintiffs respond that the government's
ability to restrict the content of speech in a designated public forum by
restricting the purpose of the designated public forum that it creates is not
unlimited. Cf. Legal
Servs. Corp. v. Velazquez,
531 U.S. 533, 547, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001) ("Congress cannot recast a condition on funding as a
mere definition of its program in every case, lest the First Amendment be
reduced to a simple semantic exercise.").
As Justice Kennedy has explained:
If Government has a freer hand to draw content-based
distinctions in limiting a forum than in
excluding someone from it, the First Amendment would be a dead letter in
designated public forums; every
exclusion could be recast as a limitation.... The power to limit or redefine
forums for a specific legitimate *458 purpose does not allow the
government to exclude certain speech or speakers from them for any reason at
all.
Denver
Area Telecomm. Consortium, Inc. v. FCC,
518 U.S. 727, 801, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (Kennedy, J., concurring in the judgment).
Although we agree with plaintiffs that the
First Amendment imposes some limits on the state's ability to adopt
content-based restrictions in defining the purpose of a public forum, precisely
what those limits are is unclear, and presents a difficult problem in First
Amendment jurisprudence. The Supreme
Court's "cases have not yet determined ... that government's decision to
dedicate a public forum to one type of content or another is necessarily
subject to the highest level of scrutiny.
Must a local government, for example, show a compelling state interest
if it builds a band shell in the park and dedicates it solely to classical
music (but not to jazz)? The answer is
not obvious." Denver,
518 U.S. at 750, 116 S.Ct. 2374 (plurality
opinion); see also Southeastern
Promotions, Ltd. v. Conrad,
420 U.S. 546, 572-73, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (Rehnquist, J., dissenting) ("May an opera house
limit its productions to operas, or must it also show rock musicals? May a municipal theater devote an entire
season to Shakespeare, or is it required to
book any potential producer on a first come, first served basis?").
[7] We believe, however, that certain principles emerge from
the Supreme Court's jurisprudence on this question. In particular, and perhaps somewhat counterintuitively, the more
narrow the range of speech that the government chooses to subsidize (whether
directly, through government grants or other funding, or indirectly, through
the creation of a public forum) the more deference the First Amendment accords
the government in drawing content-based distinctions.
At one extreme lies the government's decision
to fund a particular message that the government seeks to disseminate. In this context, content-based restrictions
on the speech that government chooses to subsidize are clearly subject to at
most rational basis review, and even viewpoint discrimination is
permissible. For example, "[w]hen
Congress established a National Endowment for Democracy to encourage other
countries to adopt democratic principles, 22
U.S.C. § 4411(b), it was not constitutionally required to fund a program to
encourage competing lines of political philosophy such as communism and
fascism." Rust
v. Sullivan,
500 U.S. 173, 194, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991); see also Velazquez,
531 U.S. at 541, 121 S.Ct. 1043
("[V]iewpoint-based funding decisions can be sustained in instances in
which the government is itself the speaker, or in instances, like Rust, in which the government used private speakers to transmit
information pertaining to its own
program.") (internal quotation marks and citation omitted).
Although not strictly controlling, the
Supreme Court's unconstitutional conditions cases, such as Rust and Velazquez, are instructive for purposes of analyzing content-based
restrictions on the use of public fora. This is because the limitations that
government places on the use of a public forum can be conceptualized as
conditions that the government attaches to the receipt of a benefit that it
offers, namely, the use of government property. Public forum cases thus
resemble those unconstitutional conditions cases involving First Amendment
challenges to the conditions that the state places on the receipt of a
government benefit. See Velazquez,
531 U.S. at 544, 121 S.Ct. 1043 ("As this
suit involves a *459 subsidy, limited forum cases ... may not be
controlling in the strict sense, yet they do provide some instruction.").
Even when the government does not fund the
dissemination of a particular government message, the First Amendment generally
permits government, subject to the constraints of viewpoint neutrality, to
create public institutions such as art museums and state universities,
dedicated to facilitating the dissemination of private speech that the
government believes to have particular merit.
Thus, in NEA
v. Finley,
524 U.S. 569, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998), the Court upheld the use of content-based restrictions in a federal
program awarding grants to artists on the basis of, inter alia, artistic
excellence. "The very assumption of the NEA is that grants will be
awarded according to the artistic worth of competing applications, and absolute
neutrality is simply inconceivable."
Id.
at 585, 118 S.Ct. 2168 (internal quotation marks
and citation omitted).
Similarly, as Justice Stevens explained in
his concurring opinion in Widmar
v. Vincent,
454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981),
the First Amendment does not necessarily subject to strict scrutiny a state
university's use of content-based means of allocating scarce resources,
including limited public fora such as its meeting facilities:
Because every university's resources are limited, an
educational institution must routinely make decisions concerning the use of the
time and space that is available for extracurricular activities. In my judgment, it is both necessary and
appropriate for those decisions to evaluate the content of a proposed student
activity. I should think it obvious,
for example, that if two groups of 25 students requested the use of a room at a
particular time--one to view Mickey Mouse cartoons and the other to rehearse an
amateur performance of Hamlet--the First Amendment would not require that the
room be reserved for the group that submitted its application first. Nor do I see why a university should have to
establish a "compelling state interest" to defend its decision to
permit one group to use the facility and not the other.
Id.
at 278, 102 S.Ct. 269 (Stevens, J., concurring in
the judgment). [FN22]
FN22. Indeed, if the First Amendment subjected to strict
scrutiny the government's decision to dedicate a forum to speech whose content
the government judges to be particularly valuable, many of our public
institutions of culture would ceaseto exist in their current form:
From here on out, the National Gallery in Washington, D.C.,
for example, would be required to display the art of all would-be artists on a
first- come-first-served basis and would not be able to exercise any content
control over its collection through evaluations of quality. Such a conclusion, of course, strikes us as
absurd, but that is only because we feel that the government should be free to
establish public cultural institutions guided by standards such as
"quality."
. . . . .
While the First Amendment articulates a deep fear of
government intervention in the marketplace of ideas (because of the risk of
distortion), it also seems prepared to permit state--sponsored and-- supported
cultural institutions that exercise considerable control over which art to
fund, which pictures to hang, and which courses to teach. That these choices
necessarily involve judgments about favored and disfavored content--judgments clearly
prohibited in the realm of censorship--is indisputable.
Lee C. Bollinger, Public
Institutions of Culture and the First Amendment: The New Frontier,
63 U. Cin. L.Rev. 1103, 1110-15 (1995).
*460 [8] The more broadly the government facilitates private
speech, however, the less deference the First Amendment accords to the
government's content-based restrictions on the speech that it facilitates. Thus, where the government creates a
designated public forum to facilitate private speech representing a diverse
range of viewpoints, the government's decision selectively to single out
particular viewpoints for exclusion is subject to strict scrutiny. Compare Rosenberger,
515 U.S. at 834, 115 S.Ct. 2510 (applying
heightened First Amendment scrutiny to viewpoint-based restrictions on the use
of a limited public forum where the government "does not itself speak or
subsidize transmittal of a message it favors but instead expends funds to
encourage a diversity of views from private speakers"), with Finley,
524 U.S. at 586, 118 S.Ct. 2168 ("In the
context of arts funding, in contrast to many other subsidies, the Government
does not indiscriminately encourage a diversity of views from private
speakers.") (internal quotation marks and citation omitted).
Similarly, although the government may create
a designated public forum limited to speech
on a particular topic, if the government opens the forum to members of the
general public to speak on that topic while selectively singling out for
exclusion particular speakers on the basis of the content of their speech, that
restriction is subject to strict scrutiny.
For instance, in City
of Madison Joint School District No. 8 v. Wisconsin Employment Relations
Commission,
429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976),
the Court held that where a school board opens its meetings for public
participation, it may not, consistent with the First Amendment, prohibit
teachers other than union representatives from speaking on the subject of
pending collective-bargaining negotiations.
See id.
at 175, 97 S.Ct. 421 (noting that the state
"has opened a forum for direct citizen involvement"); see also Ark.
Educ. Television Comm'n v. Forbes,
523 U.S. 666, 680, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998) (distinguishing, for purposes of determining the appropriate
level of First Amendment scrutiny, a televised debate in which a public
broadcasting station exercises editorial discretion in selecting participating
candidates from a debate that has "an open-microphone format").
Finally, content-based restrictions on speech
in a designated public forum are most clearly subject to strict scrutiny when
the government opens a forum for virtually unrestricted use by the general
public for speech on a virtually unrestricted range of topics, while
selectively excluding particular speech whose content it disfavors. Thus, in Conrad, the Court held that a local government violated the First Amendment when
it denied a group seeking to perform the rock musical "Hair" access
to a general-purpose municipal theater open for the public at large to use for
performances. See also Denver,
518 U.S. at 802, 116 S.Ct. 2374 (Kennedy, J.,
concurring in the judgment) (suggesting that strict scrutiny would not apply to
a local government's decision to "build[ ] a band shell in the park and
dedicate[ ] it solely to classical music (but not jazz)," but would apply
to "the Government's creation of a band shell in which all types of music
might be performed except for rap music").
Similarly, in FCC
v. League of Women Voters of Cal.,
468 U.S. 364, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984),
the Court subjected to heightened scrutiny a federal program that funded a wide
range of public broadcasting stations that disseminated speech on a wide range
of subjects, where the federal program singled out for exclusion speech whose
content amounted to editorializing. As
the Court later explained:
*461
In FCC
v. League of Women Voters of Cal.,
468 U.S. 364, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984)
the Court was instructed by its understanding of the dynamics of the broadcast
industry in holding that prohibitions against editorializing by public radio
networks were an impermissible restriction, even though the Government enacted
the restriction to control the use of public funds. The First Amendment forbade the Government from using the forum
in an unconventional way to suppress speech
inherent in the nature of the medium.
Velazquez,
531 U.S. at 543, 121 S.Ct. 1043.
In sum, the more widely the state opens a
forum for members of the public to speak on a variety of subjects and
viewpoints, the more vulnerable is the state's decision selectively to exclude
certain speech on the basis of its disfavored content, as such exclusions
distort the marketplace of ideas that the state has created in establishing the
forum. Cf. Velazquez,
531 U.S. at 544, 121 S.Ct. 1043
("Restricting LSC attorneys in advising their clients and in presenting
arguments and analyses to the courts distorts the legal system by altering the
traditional role of the attorneys in much the same way broadcast systems or
student publication networks were changed in the limited forum
cases....").
[9] Thus, we believe that where the state designates a forum
for expressive activity and opens the forum for speech by the public at large
on a wide range of topics, strict scrutiny applies to restrictions that single
out for exclusion from the forum particular speech whose content is
disfavored. "Laws designed or
intended to suppress or restrict the expression of specific speakers
contradict basic First Amendment principles." United
States v. Playboy Entm't Group, Inc.,
529 U.S. 803, 812, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000); see also Denver,
518 U.S. at 782, 116 S.Ct. 2374 (Kennedy, J.,
concurring in the judgment) (noting the flaw in a law that "singles out
one sort of speech for vulnerability to
private censorship in a context where content-based discrimination is not
otherwise permitted"). Compare Forbes,
523 U.S. at 679, 118 S.Ct. 1633 (holding that the
state does not create a public forum when it "allows selective access
for individual speakers rather than general access for a class of
speakers") (emphasis added), with Police
Dep't of the City of Chicago v. Mosley,
408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) ("Selective exclusions from a public forum may
not be based on content alone, and may not be justified by reference to content
alone.") (emphasis added).
We note further that to the extent that the
government creates a public forum expressly designed to facilitate the
dissemination of private speech, opens the forum to any member of the public to
speak on any virtually any topic, and then selectively targets certain speech
for exclusion based on its content, the government is singling out speech in a
manner that resembles the discriminatory taxes on the press that the Supreme
Court subjected to heightened First Amendment scrutiny in Arkansas
Writers' Project, Inc. v. Ragland,
481 U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987),
and Minneapolis
Star & Tribune Co. v. Minnesota Commissioner of Revenue,
460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983),
which we explain in the margin. [FN23]
FN23. In both of
these cases, the taxation scheme at issue effectively
subsidized a vast range of publications, and singled out for penalty only a
handful of speakers. See Arkansas
Writers' Project,
481 U.S. at 228-29, 107 S.Ct. 1722 (noting that
"selective taxation of the press--... [by] targeting individual members of
the press--poses a particular danger of abuse by the State" and explaining
that "this case involves a more disturbing use of selective taxation than Minneapolis
Star, because the basis on which Arkansas
differentiates between magazines is particularly repugnant to First Amendment
principles: a magazine's tax status
depends entirely on its content "); Minneapolis
Star,
460 U.S. at 591, 103 S.Ct. 1365
("Minnesota's ink and paper tax violates the First Amendment not only
because it singles out the press, but also because it targets a small group of
newspapers."); see also Turner
Broad. Sys., Inc. v. FCC,
512 U.S. 622, 660, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) ( "The taxes invalidated in Minneapolis
Star and Arkansas
Writers' Project ... targeted a small number
of speakers, and thus threatened to distort the market for ideas.")
(internal quotation marks and citation omitted).
*462 D.
Reasons for Applying Strict Scrutiny
1. Selective
Exclusion From a "Vast Democratic Forum"
[10] Applying these principles to public libraries, we agree
with the government that generally the
First Amendment subjects libraries' content-based decisions about which print
materials to acquire for their collections to only rational review. In making these decisions, public libraries
are generally free to adopt collection development criteria that reflect not
simply patrons' demand for certain material, butalso the library's evaluation
of the material's quality. See
Bernard W. Bell, Filth,
Filtering, and the First Amendment:
Ruminations on Public Libraries' Use of Internet Filtering Software,
53 Fed. Comm. L.J. 191, 225 (2001)
("Librarians should have the discretion to decide that the library is
committed to intellectual inquiry, not to the satisfaction of the full range of
human desires."). Thus, a public
library's decision to use the last $100 of its budget to purchase the complete
works of Shakespeare even though more of its patrons would prefer the library
to use the same amount to purchase the complete works of John Grisham, is not,
in our view, subject to strict scrutiny.
Cf. NEA
v. Finley,
524 U.S. 569, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (subjecting only to rational basis review the government's decision to
award NEA grants on the basis of, inter alia, artistic excellence).
Nonetheless, we disagree with the
government's argument that public libraries' use of Internet filters is no
different, for First Amendment purposes, from the editorial discretion that
they exercise when they choose to acquire certain books on the basis of
librarians' evaluation of their quality. The
central difference, in our view, is that by providing patrons with even
filtered Internet access, the library permits patrons to receive speech on a
virtually unlimited number of topics, from a virtually unlimited number of
speakers, without attempting to restrict patrons' access to speech that the
library, in the exercise of its professional judgment, determines to be
particularly valuable. Cf. Rosenberger
v. Rector & Visitors of Univ. of Va.,
515 U.S. 819, 834, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (applying strict scrutiny to viewpoint-based restrictions
where the state "does not itself speak or subsidize transmittal of a
message it favors but instead expends funds to encourage a diversity of views
from private speakers"). See
generally supra Section IV.C.
In those cases upholding the government's
exercise of editorial discretion in selecting certain speech for subsidization
or inclusion in a state-created forum, the state actor exercising the editorial
discretion has at least reviewed the content of the speech that the forum
facilitates. Thus, in Finley the NEA examined the content of those works of art that it
chose to subsidize, and in *463Arkansas
Educational Television Commission v. Forbes,
523 U.S. 666, 118 S.Ct. 1633, 140 L.Ed.2d 875
(1998), the public broadcaster
specifically reviewed and approved each speaker permitted to participate in the
debate. See id.
at 673, 118 S.Ct. 1633 ("In the case of
television broadcasting, ... broad rights of access for outside speakers would be antithetical, as a general rule, to the
discretion that stations and their editorial staff must exercise to fulfill
their journalistic purpose and statutory obligations."); Finley,
524 U.S. at 586, 118 S.Ct. 2168 ("The NEA's
mandate is to make esthetic judgments, and the inherently content-based
'excellence' threshold for NEA support sets it apart from the subsidy at issue
in Rosenberger--which was available to all student organizations that
were 'related to the educational purpose of the University ....' ")
(quoting Rosenberger,
515 U.S. at 824, 115 S.Ct. 2510); see also Cornelius
v. NAACP Legal Def. & Educ. Fund,
473 U.S. 788, 804, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) ("The Government's consistent policy has been to
limit participation in the [Combined Federal Campaign] to 'appropriate'
voluntary agencies and to require agencies seeking admission to obtain
permission from federal and local Campaign officials.... [T]here is no evidence
suggesting that the granting of the requisite permission is merely
ministerial."). The essence of
editorial discretion requires the exercise of professional judgment in
examining the content that the government singles out as speech of particular
value.
This exercise of editorial discretion is
evident in a library's decision to acquire certain books for its
collection. As the government's experts
in library science testified, in selecting a book for a library's collection,
librarians evaluate the book's quality by reference to a variety of criteria
such as its accuracy, the title's niche in relation to the rest of the collection, the authority of the author, the
publisher, the work's presentation, and how it compares with other material
available in the same genre or on the same subject. Thus, the content of every book that a library acquires has been
reviewed by the library's collection development staff or someone to whom they
have delegated the task, and has been judged to meet the criteria that form the
basis for the library's collection development policy. Although some public
libraries use "approval plans" to delegate the collection development
to third-party vendors which provide the library with recommended materials
that the library is then free to retain or return to the vendor, the same
principle nonetheless attains.
In contrast, in providing patrons with even
filtered Internet access, a public library invites patrons to access speech
whose content has never been reviewed and recommended as particularly valuable
by either a librarian or a third party to whom the library has delegated
collection development decisions.
Although several of the government's librarian witnesses who testified
at trial purport to apply the same standards that govern the library's
acquisition of print materials to the library's provision of Internet access to
patrons, when public libraries provide their patrons with Internet access, they
intentionally open their doors to vast amounts of speech that clearly lacks
sufficient quality to ever be considered for the library's print
collection. Unless a library allows
access to only those sites that have been preselected
as having particular value, a method that, as noted above, was tried and
rejected by the Westerville Ohio Public Library, see supra
at 46- 47, 103 S.Ct. 948, even a library that
uses software filters has opened its Internet collection "for
indiscriminate use by the general public." Perry
Educ. Ass'n v. Perry Local Educs. Ass'n,
460 U.S. 37, 47, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). "[M]ost
Internet forums--including chat rooms, newsgroups, mail exploders, and the
Web--are open to *464 all comers."
Reno
v. ACLU,
521 U.S. 844, 880, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997).
The fundamental difference between a
library's print collection and its provision of Internet access is illustrated
by comparing the extent to which the library opens its print collection to
members of the public to speak on a given topic and the extent to which it
opens its Internet terminals to members of the public to speak on a given
topic. When a public library chooses to
carry books on a selected topic, e.g. chemistry, it does not open its print
collection to any member of the public who wishes to write about chemistry.
Rather, out of the myriad of books that have ever been written on chemistry,
each book on chemistry that the library carries has been reviewed and selected
because the person reviewing the book, in the exercise of his or her
professional judgment, has deemed its content to be particularly valuable. In contrast, when apublic library provides
Internet access, even filtered Internet access, it has created a forum open to
any member of the public who writes about
chemistry on the Internet, regardless of how unscientific the author's methods
or of how patently false the author's conclusions are, regardless of the
author's reputation or grammar, and regardless of the reviews of the scientific
community.
Notwithstanding protestations in CIPA's
legislative history to the contrary, [FN24] members
of the general public do define the content that public libraries make
available to their patrons through the Internet. Any member of the public with Internet access could, through the
free Web hosting services available on the Internet, tonight jot down a few musings
on any subject under the sun, and tomorrow those musings would become part of
public libraries' online offerings and be available to any library patron who
seeks them out.
FN24. [P]atrons at a library do not have the
right to make editorial decisions regarding the availability of certain
material. It is the exclusive authority
of the library to make affirmative decisions regarding what books, magazines,
or other material is placed on library shelves, or otherwise made available to
patrons. Libraries impose many
restrictions on the use of their systems which demonstrate that the content of
the library's offerings are not determined by the general public.
S. Rep. No. 106-141, at 8-9 (1999).
In
providing its patrons with Internet access, a public library creates a forum
for the facilitation of speech, almost none of which either the library's
collection development staff or even the filtering companies have ever
reviewed. Although filtering companies
review a portion of the Web in classifying particular sites, the portion of the
Web that the filtering companies actually review is quite small in relation to
the Web as a whole. The filtering companies' harvesting process, described in
our findings of fact, is intended to identify only a small fraction of Web
sites for the filtering companies to review.
Put simply, the state cannot be said to be exercising editorial
discretion permitted under the First Amendment when it indiscriminately
facilitates private speech whose content it makes no effort to examine. Cf. Bell, supra, at 226
("[C]ourts should take a much more jaundiced view of library policies that
block Internet access to a very limited array of subjects than they take of
library policies that reserve Internet terminals for very limited use.").
While the First Amendment permits the
government to exercise editorial discretion in singling out particularly
favored speech for subsidization or inclusion in a state-created forum, we
believe that where the state provides access to a "vast democratic forum[
]," *465Reno,
521 U.S. at 868, 117 S.Ct. 2329, open to any member of the public to speak on subjects
"as diverse as human thought," id.
at 870, 117 S.Ct. 2329, and then selectively
excludes from the forum certain speech on
the basis of its content, such exclusions are subject to strict scrutiny. These exclusions risk fundamentally
distorting the unique marketplace of ideas that public libraries create when
they open their collections, via the Internet, to the speech of millions of
individuals around the world on a virtually limitless number of subjects. [FN25]
FN25. In
distinguishing restrictions on public libraries' print collections from
restrictions on the provision of Internet access, we do not rely on the
rationale adopted in Mainstream
Loudoun v. Board of Trustees of the Loudoun County Library,
2 F.Supp.2d 783 (E.D.Va.1998). The Loudoun Court reasoned that a library's decision to block certain
Web sites fundamentally differs from its decision to carry certain books but
not others, in that unlike the money and shelf space consumed by the library's
provision of print materials, "no appreciable expenditure of library time
or resources is required to make a particular Internet publication
available" once the library has acquired Internet access. Id.
at 793-94.
We disagree. Nearly
every librarian who testified at trial stated that patrons' demand for Internet
access exceeds the library's supply of Internet terminals. Under such circumstances, every time library
patrons visit a Web site, they deny other patrons waiting to use the terminal access to other Web sites. Just as the scarcity of a library's budget
and shelf space constrains a library's ability to provide its patrons with
unrestricted access to print materials, the scarcity of time at Internet
terminals constrains libraries' ability to provide patrons with unrestricted
Internet access:
The same budget concerns constraining the number of books
that libraries can offer also limits the number of terminals, Internet
accounts, and speed of access links that can be purchased, and thus the number
of Web pages that patrons can view.
This is clear to anyone who has been denied access to a Website because
no terminal was unoccupied.
Mark S. Nadel, The First
Amendment's Limitations on the Use of Internet Filtering in Public and School
Libraries: What Content Can Libraries
Exclude?,
78 Tex. L.Rev. 1117, 1128 (2000).
[11] A public library's content-based restrictions on patrons'
Internet access thus resemble the content-based restrictions on speech
subsidized by the government, whether through direct funding or through the
creation of a designated public forum, that the Supreme Court has subjected to
strict scrutiny, as discussed above in Section IV.C. Although the government
may subsidize a particular message representing the government's viewpoint
without having to satisfy strict scrutiny, see Rust
v. Sullivan,
500 U.S. 173, 111 S.Ct.
1759, 114 L.Ed.2d 233 (1991), strict scrutiny
applies to restrictions that selectively exclude particular viewpoints from a
public forum designed to facilitate a wide range of viewpoints, see Rosenberger
v. Rector & Visitors of Univ. of Va.,
515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). Similarly, although the state's exercise of editorial discretion in
selecting particular speakers for participation in a state-sponsored forum is
subject to rational basis review, see Ark.
Educ. Television Comm'n v. Forbes,
523 U.S. 666, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998), selective exclusions of particular speakers from a forum otherwise
open to any member of the public to speak are subject to strict scrutiny, see
City
of Madison Joint School Dist. No. 8 v. Wis. Employment Relations Comm'n,
429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976).
And while the government may, subject only to
rational basis review, make content-based decisions in selecting works of
artistic excellence to subsidize, see NEA
v. Finley,
524 U.S. 569, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998), the Supreme Court has applied heightened scrutiny where the *466
government opens a general-purpose municipal theater for use by the public, but
selectively excludes disfavored content, see Southeastern
Promotions, Ltd. v. Conrad,
420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975),
where the government facilitates the speech of public broadcasters on a
virtually limitless number of topics, but prohibits editorializing, see FCC v.
League of Women Voters of Cal.,
468 U.S. 364, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984),
and where the government funds a wide range of legal services but restricts
funding recipients from challenging welfare laws, see Legal
Servs. Corp. v. Velazquez,
531 U.S. 533, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001).
Similarly, where a public library opens a forum to an unlimited number of
speakers around the world to speak on an unlimited number of topics, strict
scrutiny applies to the library's selective exclusions of particular speech
whose content the library disfavors.
2. Analogy to Traditional Public Fora
Application of strict scrutiny to public
libraries' use of software filters, in our view, finds further support in the
extent to which public libraries' provision of Internet access promotes First
Amendment values in an analogous manner to traditional public fora, such as
sidewalks and parks, in which content-based restrictions on speech are always
subject to strict scrutiny. The public library, by its very nature, is
"designed for freewheeling inquiry."
Bd.
of Education v. Pico,
457 U.S. 853, 915, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982) (Rehnquist, J., dissenting). As such, the library is a "mighty resource in the free
marketplace of ideas," Minarcini
v. Strongsville City Sch. Dist.,
541 F.2d 577, 582 (6th Cir.1976), and represents
a "quintessential locus of the receipt of information." Kreimer
v. Bureau of Police for Morristown,
958 F.2d 1242, 1255 (3d Cir.1992); see also Sund v. City of Wichita Falls, 121 F.Supp.2d
530, 547 (N.D.Tex.2000) ("The right to receive information is vigorously
enforced in the context of a public library ...."); cf.
Int'l
Soc'y for Krishna Consciousness, Inc. v. Lee,
505 U.S. 672, 681, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992) ("[A] traditional public forum is property that has
as 'a principal purpose ... the free exchange of ideas.' ") (quoting Cornelius
v. NAACP Legal Def. & Educ. Fund,
473 U.S. 788, 800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)).
We acknowledge that the provision of Internet
access in a public library does not enjoy the historical pedigree of streets,
sidewalks, and parks as a vehicle of free expression. Nonetheless, we believe that it shares many of the
characteristics of these traditional public fora that uniquely promote First
Amendment values and accordingly warrant application of strict scrutiny to any
content-based restriction on speech in these fora. Regulation of speech in streets, sidewalks, and parks is subject
to the highest scrutiny not simply by virtue of history and tradition, but also
because the speech-facilitating character of sidewalks and parks makes them
distinctly deserving of First Amendment protection. Many of these same speech-promoting features of the traditional
public forum appear in public libraries' provision of Internet access.
First, public libraries, like sidewalks and
parks, are generally open to any member of the public who wishes to receive the
speech that these fora facilitate, subject
only to narrow limitations. See Kreimer,
958 F.2d at 1260 (noting that a public library
does not retain unfettered discretion "to choose whom it will permit to
enter the Library," but upholding the library's right to exclude patrons
who harass patrons or whose offensive personal hygiene precludes the library's
use by other patrons). Moreover, like
traditional *467 public fora, public libraries are funded by taxpayers
and therefore do not charge members of the public each time they use the
forum. The only direct cost to library
patrons who wish to receive information, whether via the Internet or the
library's print collection, is the time spent reading.
By providing Internet access to millions of
Americans to whom such access would otherwise be unavailable, public libraries
play a critical role in bridging the digital divide separating those with
access to new information technologies from those that lack access. See generally National
Telecommunications and Information Administration, U.S. Department of Commerce,
Falling Through the Net: Defining
the Digital Divide (1999), available at http://
www.ntia.doc.gov/ntiahome/fttn99/ contents.html. Cf. Velazquez,
531 U.S. at 546, 121 S.Ct. 1043 (invalidating a
content-based restriction on the speech of federally funded legal services
corporations and noting that given the financial hardship of legal services
corporations' clients, "[t]he restriction on speech is even more
problematic because in cases where the attorney withdraws from a
representation, the client is unlikely to find other counsel"). Public libraries that provide Internet access greatly expand the
educational opportunities for millions of Americans who, as explained in the
margin, would otherwise be deprived of the benefits of this new medium. [FN26]
FN26. We have found
that approximately 14.3 million Americans access the Internet at a public
library, and Internet access at public libraries is more often used by those
with lower incomes than those with higher incomes. We found that about 20.3% of Internet users with household family
income of less than $15,000 per year use public libraries for Internet access,
and approximately 70% of libraries serving communities with poverty levels in
excess of 40% receive E-rate discounts.
The widespread availability of Internet access in public libraries is
due, in part, to the availability of public funding, including state and local
funding and the federal funding programs regulated by CIPA.
Just as important as the openness of a forum
to listeners is its openness to speakers.
Parks and sidewalks are paradigmatic loci of First Amendment values in
large part because they permit speakers to communicate with a wide audience at
low cost. One can address members of
the public in a park for little more than the cost of a soapbox, and one can
distribute handbills on the sidewalk for
little more than the cost of a pen, paper, and some photocopies. See Martin
v. City of Struthers,
319 U.S. 141, 146, 63 S.Ct. 862, 87 L.Ed. 1313 (1943) ("Door to door distribution of circulars is essential
to the poorly financed causes of little people."); Laurence H. Tribe, American
Constitutional Law § 12-24 at 987
(2d ed. 1988) ("The 'public forum'
doctrine holds that restrictions on speech should be subject to higher scrutiny
when, all other things being equal, that speech occurs in areas playing a vital
role in communication--such as in those places historically associated with
first amendment activities, such as streets, sidewalks, and parks--especially
because of how indispensable communication in these places is to people who
lack access to more elaborate (and more costly) channels."); Daniel A. Farber, Free
Speech without Romance: Public Choice
and the First Amendment,
105 Harv. L.Rev. 554, 574 n. 86 (1991) (noting
that traditional public fora "are often the only place where less affluent
groups and individuals can effectively express their message"); Harry Kalven, Jr., The Concept of the
Public Forum: Cox v. Louisiana, 1965 Sup.Ct. Rev. 1, 30 ("[T]he
parade, the picket, the leaflet, the sound truck, have been the media of
communication exploited by those with little access to the more genteel means
of communication.").
*468 Similarly, given the existence of
message boards and free Web hosting services, a speaker can, via the Internet,
address the public, including patrons of public libraries, for little more than
the cost of Internet access. As the Supreme Court explained in Reno
v. ACLU,
521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), "the Internet can hardly be considered a 'scarce' expressive
commodity. It provides relatively
unlimited, low-cost capacity for communication of all kinds." Id.
at 870, 117 S.Ct. 2329. Although the cost of a home computer and Internet access
considerably exceeds the cost of a soapbox or a few hundred photocopies,
speakers wishing to avail themselves of the Internet may gain free access in
schools, workplaces, or the public library.
As Professor Lessig has explained:
The "press" in 1791 was not the New York Times
or the Wall Street Journal. It did not comprise large organizations of
private interests, with millions of readers associated with each
organization. Rather, the press then
was much like the Internet today. The
cost of a printing press was low, the readership was slight, and anyone (within
reason) could become a publisher--and in fact an extraordinary number did. When the Constitution speaks of the rights
of the "press," the architecture it has in mind is the architecture
of the Internet.
Lawrence Lessig, Code 183 (1999).
While public libraries' provision of Internet
access shares many of the speech-promoting qualities of traditional public
fora, it also facilitates speech in ways that traditional public fora cannot. [FN27] In particular, whereas the architecture of
real space limits the audience of a pamphleteer or soapbox orator to people
within the speaker's immediate vicinity, the Internet renders the geography of speaker and listener
irrelevant:
FN27. We acknowledge
that traditional public fora have characteristics that promote First Amendment
values in ways that the provision of Internet access in public libraries does
not. For example, a significant virtue
of traditional public fora is their facilitation of face-to-face
communication. "In a face-to-face
encounter there is a greater opportunity for the exchange of ideas and the
propagation of views...." Cornelius,
473 U.S. at 798, 105 S.Ct. 3439. Face-to-face
exchanges also permit speakers to confront listeners who would otherwise not
actively seek out the information that the speaker has to offer. In contrast, the Internet operates largely
by providing individuals with only that information that they actively seek
out. Although the Internet does not
permit face-to-face communication in the same way that traditional public fora
do, the Internet, as a medium of expression, is significantly more interactive
than the broadcast media and the press.
"[T]he Web makes it possible to establish two-way linkages with
potential sympathizers. Unlike the unidirectional nature of most mass media,
websites, bulletin boards, chatrooms, and email are potentially
interactive." Seth F. Kreimer, Technologies
of Protest: Insurgent Social Movements
and the First Amendment in the Era of the Internet, 150 U. Pa. L.Rev. 119,
130 (2001).
Through the use of chat rooms, any person with a phone line
can become a town crier with a voice that resonates farther than it could from
any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the
same individual can become a pamphleteer.
Reno,
521 U.S. at 870, 117 S.Ct. 2329. By providing patrons with Internet access,
public libraries in effect open their doors to an unlimited number of potential
speakers around the world, inviting the speech of any member of the public who
wishes to communicate with library patrons via the Internet.
Due to the low costs for speakers and the
irrelevance of geography, the volume of speech available to library patrons on *469
the Internet is enormous and far exceeds the volume of speech available to
audiences in traditional public fora. See
id.
at 868, 117 S.Ct. 2329 (referring to "the
vast democratic forums of the Internet").
Indeed, as noted in our findings of fact, the Web is estimated to
contain over one billion pages, and is said to be growing at a rate of over 1.5
million pages per day. See id.
at 885, 117 S.Ct. 2329 (noting "[t]he
dramatic expansion of this new marketplace of ideas"). This staggering volume of content on the
Internet "is as diverse as human thought," id.
at 870, 117 S.Ct. 2329, and "is thus
comparable, from the reader's viewpoint, to ... a vast library including
millions of readily available and indexed
publications," id.
at 853, 117 S.Ct. 2329. As a result of the Internet's unique speech-facilitating
qualities, "it is hard to find an aspiring social movement, new or old, of
left, right, or center, without a website, a bulletin board, and an email list." Kreimer, supra n. 27, at 125. "[T]he growth of the Internet has been
and continues to be phenomenal." Reno,
521 U.S. at 885, 117 S.Ct. 2329.
This extraordinary growth of the Internet
illustrates the extent to which the Internet promotes First Amendment values in
the same way that the historical use of traditional public fora for speaking,
handbilling, and protesting testifies to their effectiveness as vehicles for
free speech. Cf. Martin,
319 U.S. at 145, 63 S.Ct. 862 ("The
widespread use of this method of communication [door-to-door distribution of
leaflets] by many groups espousing various causes attests its major
importance."); Schneider
v. State,
308 U.S. 147, 164, 60 S.Ct. 146, 84 L.Ed. 155 (1939) ("[P]amphlets have proved most effective instruments in the
dissemination of opinion.").
The provision of Internet access in public
libraries, in addition to sharing the speech-enhancing qualities of fora such
as streets, sidewalks, and parks, also supplies many of the speech-enhancing
properties of the postal service, which is open to the public at large as both
speakers and recipients of information, and provides a relatively low-cost
means of disseminating information to a geographically dispersed audience. See Lamont
v. Postmaster
Gen.,
381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965)
(invalidating a content-based prior restraint on the use of the mails); see
also Blount
v. Rizzi,
400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971)
(same). Indeed, the Supreme Court's
description of the postal system in Lamont seems equally apt as a description of the Internet
today: "the postal system ... is
now the main artery through which the business, social, and personal affairs of
the people are conducted...." 381
U.S. at 305 n. 3, 85 S.Ct. 1493.
In short, public libraries, by providing
their patrons with access to the Internet, have created a public forum that
provides any member of the public free access to information from millions of
speakers around the world. The unique
speech-enhancing character of Internet use in public libraries derives from the
openness of the public library to any member of the public seeking to receive
information, and the openness of the Internet to any member of the public who
wishes to speak. In particular,
speakers on the Internet enjoy low barriers to entry and the ability to reach a
mass audience, unhindered by the constraints of geography. [FN28] Moreover, *470 just as the
development of new media "presents unique problems, which inform our
assessment of the interests at stake, and which may justify restrictions that
would be unacceptable in other contexts," United
States v. Playboy Entm't Group, Inc.,
529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000), the development of
new media, such as the Internet, also presents unique possibilities for
promoting First Amendment values, which also inform our assessment of the
interests at stake, and which we believe, in the context of the provision of
Internet access in public libraries, justify the application of heightened
scrutiny to content-based restrictions that might be subject to only rational
review in other contexts, such as the development of the library's print
collection. Cf. id.
at 818, 120 S.Ct. 1878 ("Technology expands
the capacity to choose; and it denies
the potential of this revolution if we assume the Government is best positioned
to make these choices for us.").
FN28. We acknowledge
that the Internet's architecture is a human creation, and is therefore subject
to change. The foregoing analysis of
the unique speech-enhancing qualities of the Internet is limited to the
Internet as currently constructed.
Indeed, the characteristics of the Internet that we believe render it
uniquely suited to promote First Amendment values may change as the Internet's
architecture evolves. See
Lawrence Lessig, Reading
the Constitution in Cyberspace,
45 Emory L.J. 869, 888 (1996) ("Cyberspace
has no permanent nature, save the nature of a place of unlimited
plasticity. We don't find
cyberspace, we build it."); see also Lawrence Lessig, The Death
of Cyberspace,
57 Wash. & Lee L.Rev. 337 (2000).
A faithful translation of First Amendment
values from the context of traditional public fora such as sidewalks and parks
to the distinctly non- traditional public forum of Internet access in public
libraries requires, in our view, that content-based restrictions on Internet
access in public libraries be subject to the same exacting standards of First
Amendment scrutiny as content-based restrictions on speech in traditional
public fora such as sidewalks, town squares, and parks:
The architecture of the Internet, as it is right now, is
perhaps the most important model of free speech since the founding.... Two
hundred years after the framers ratified the Constitution, the Net has taught
us what the First Amendment means.... The model for speech that the framers
embraced was the model of the Internet--distributed, noncentralized, fully free
and diverse.
Lessig, Code, at 167, 185. Indeed, "[m]inds are not changed in
streets and parks as they once were. To
an increasing degree, the more significant interchanges of ideas and shaping of
public consciousness occur in mass and electronic media." Denver
Area Educ. Telecomms. Consortium, Inc. v. FCC,
518 U.S. 727, 802-03, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (Kennedy, J., concurring in the judgment).
In providing patrons with even filtered
Internet access, a public library is not exercising editorial discretion in
selecting only speech of particular quality
for inclusion in its collection, as it may do when it decides to acquire print
materials. By providing its patrons
with Internet access, public libraries create a forum in which any member of
the public may receive speech from anyone around the world who wishes to
disseminate information over the Internet.
Within this "vast democratic forum[ ]," Reno,
521 U.S. at 868, 117 S.Ct. 2329, which
facilitates speech that is "as diverse as human thought," id.
at 870, 117 S.Ct. 2329, software filters single
out for exclusion particular speech on the basis of its disfavored
content. We hold that these
content-based restrictions on patrons' access to speech are subject to strict
scrutiny.
V. Application of Strict Scrutiny
[12] Having concluded that strict scrutiny applies to public
libraries' content-based restrictions on patrons' access to speech on the
Internet, we must next determine whether a public library's use of Internet
software filters can survive strict *471 scrutiny. To survive strict scrutiny, a restriction on
speech "must be narrowly tailored to promote a compelling Government
interest. If a less restrictive
alternative would serve the Government's purpose, the legislature must use that
alternative." United
States v. Playboy Entm't Group, Inc.,
529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) (citation omitted);
see also Fabulous
Assocs., Inc. v. Pa. Pub. Util. Comm'n,
896 F.2d 780, 787 (3d Cir.1990) (holding that a
content-based burden on speech is
permissible "only if [the government] shows that the restriction serves a
compelling interest and that there are no less restrictive alternatives").
The application of strict scrutiny to a
public library's use of filtering products thus requires three distinct
inquiries. First, we must identify
those compelling government interests that the use of filtering software
promotes. It is then necessary to
analyze whether the use of software filters is narrowly tailored to further
those interests. Finally, we must
determine whether less restrictive alternatives exist that would promote the
state interest.
A. State Interests
We begin by identifying those legitimate
state interests that a public library's use of software filters promotes.
1. Preventing the Dissemination of Obscenity, Child Pornography,
and Material
Harmful to Minors
On its face, CIPA is clearly intended to
prevent public libraries' Internet terminals from being used to disseminate to
library patrons visual depictions that are obscene, child pornography, or in
the case of minors, harmful to minors. See
CIPA § 1712 (codified at 20
U.S.C. § 9134(f)(1)(A) & (B)), § 1721(b)
(codified at 47
U.S.C. § 254(h)(6)(B) & (C)) (requiring any library that receives E-rate discounts to
certify that it is enforcing "a policy of Internet
safety that includes the operation of a technology protection measure with
respect to any of its computers with Internet access that protects against
access through such computers to visual depictions" that are
"obscene" or "child pornography," and, when the computers
are in use by minors, also protects against access to visual depictions that
are "harmful to minors").
[13] The government's interest in preventing the dissemination
of obscenity, child pornography, or, in the case of minors, material harmful to
minors, is well-established. Speech
that is obscene, under the legal definition of obscenity set forth in the margin,
is unprotected under the First Amendment, and accordingly the state has a
compelling interest in preventing its distribution. [FN29] See Miller
v. California,
413 U.S. 15, 18, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) ("This Court has recognized that the States have a
legitimate interest in prohibiting dissemination or exhibition of obscene
material."); Stanley
v. Georgia,
394 U.S. 557, 563, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) ("[T]he First and Fourteenth Amendments recognize a
valid governmental interest in dealing with the problem of
obscenity."); Roth
v. United States,
354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) ("We hold that obscenity is not within the area of
constitutionally protected speech of press.").
FN29. For First
Amendment purposes, obscenity is "limited to works which, taken as a whole, appeal to the
prurient interest in sex, which portray sexual conduct in a patently offensive
way, and which, taken as a whole, do not have serious literary, artistic,
political, or scientific value." Miller
v. California,
413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).
[14] The First Amendment also permits the state to prohibit the
distribution to minors of material that, while not obscene *472 with
respect to adults, is obscene with respect to minors. See Ginsberg
v. New York,
390 U.S. 629, 637, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) (holding that it is constitutionally permissible "to
accord minors under 17 a more restricted right than that assured to adults to
judge and determine for themselves what sex material they may read or
see"). Proscribing the
distribution of such material to minors is constitutionally justified by the
government's well-recognized interest in safeguarding minors' well-being. See Reno
v. ACLU,
521 U.S. 844, 869-70, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) ("[T]here is a compelling interest in protecting the
physical and psychological well-being of minors which extend[s] to shielding
them from indecent messages that are not obscene by adult standards ....")
(internal quotation marks and citation omitted); New
York v. Ferber,
458 U.S. 747, 756-57, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) ("It is evident beyond the need for elaboration that
a State's interest in safeguarding the
physical and psychological well-being of a minor is compelling.")
(internal quotation marks and citation omitted); Ginsberg,
390 U.S. at 640, 88 S.Ct. 1274 ("The State
... has an independent interest in the well-being ofits youth.").
[15] The government's compelling interest in protecting the
well- being of its youth justifies laws that criminalize not only the
distribution to minors of material that is harmful to minors, but also the
possession and distribution of child pornography. See Osborne
v. Ohio,
495 U.S. 103, 111, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (holding that a state "may constitutionally proscribe
the possession and viewing of child pornography"); Ferber,
458 U.S. at 757, 763, 102 S.Ct. 3348 (noting that
"[t]he prevention of sexual exploitation and abuse of children constitutes
a government objective of surpassing importance," and holding that
"child pornography [is] a category of material outside the protection of
the First Amendment").
Thus, a public library's use of software
filters survives strict scrutiny if it is narrowly tailored to further the
state's well-recognized interest in preventing the dissemination of obscenity
and child pornography, and in preventing minors from being exposed to material
harmful to their well-being.
2. Protecting the Unwilling Viewer
Several of the libraries that use filters
assert that filters serve the libraries' interest in preventing patrons from
being unwillingly exposed to sexually
explicit speech that the patrons find offensive. Nearly every library proffered by either the government or the
plaintiffs received complaints, in varying degrees of frequency, from library
patrons who saw other patrons accessing sexually explicit material on the
library's Internet terminals.
In general, First Amendment jurisprudence is
reluctant to recognize a legitimate state interest in protecting the unwilling
viewer from speech that is constitutionally protected. "Where the designed benefit of a
content-based speech restriction is to shield the sensibilities of listeners,
the general rule is that the right of expression prevails, even where no less
restrictive alternative exists. We are
expected to protect our own sensibilities simply by averting our eyes." Playboy,
529 U.S. at 813, 120 S.Ct. 1878 (2000) (internal
quotation marks and citation omitted); see
also Erznoznik
v. City of Jacksonville,
422 U.S. 205, 209, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) ("[W]hen the government, acting as censor, undertakes
selectively to shield the public from some kinds of speech on the ground that
they are more offensive than others, the First Amendment strictly limits its
power.").
*473 For example, in Cohen
v. California,
403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971),
the Supreme Court reversed defendant's conviction for wearing, in a municipal
courthouse, a jacket bearing the inscription "Fuck the Draft." The Court noted that "much has been
made of the claim that Cohen's distasteful mode of expression was thrust upon
unwilling or unsuspecting viewers, and that
the State might therefore legitimately act as it did in order to protect the
sensitive from otherwise unavoidable exposure to appellant's crude form of
protest." Id.
at 21, 91 S.Ct. 1780. This justification for suppressing speech failed, however,
because it "would effectively empower a majority to silence dissidents
simply as a matter of personal predilections." Id. The Court concluded that "[t]hose in the Los Angeles
courthouse could effectively avoid further bombardment of their sensibilities
simply by averting their eyes." Id.
Similarly, in Erznoznik, the Court invalidated on its face a municipal ordinance
prohibiting drive-in movie theaters from showing films containing nudity if
they were visible from a public street or place. The city's "primary argument [was] that it may protect its
citizens against unwilling exposure to materials that may be offensive." 422
U.S. at 208, 95 S.Ct. 2268. The Court soundly rejected this interest in
shielding the unwilling viewer:
The plain, if at times disquieting, truth is that in our
pluralistic society, constantly proliferating new and ingenious forms of
expression, we are inescapably captive audiences for many purposes. Much that we encounter offends our esthetic,
if not our political and moral, sensibilities. Nevertheless, the Constitution
does not permit government to decide which types of otherwise protected speech
are sufficiently offensive to require protection for the unwilling listener or viewer. Rather, absent ... narrow circumstances ...
the burden normally falls upon the viewer to avoid further bombardment of his
sensibilities simply by averting his eyes.
422
U.S. at 210-11, 95 S.Ct. 2268 (internal quotation
marks and citation omitted).
The state's interest in protecting unwilling
viewers from exposure to patently offensive material is accounted for, to some
degree, by obscenity doctrine, which originated in part to permit the state to
shield the unwilling viewer. "The Miller standard, like its predecessors, was an accommodation
between the State's interests in protecting the sensibilities of unwilling
recipients from exposure to pornographic material and the dangers of censorship
inherent in unabashedly content-based laws." Ferber,
458 U.S. at 756, 102 S.Ct. 3348 (internal
quotation marks and citation omitted); see
also Miller,
413 U.S. at 18-19, 93 S.Ct. 2607 ("This
Court has recognized that the States have a legitimate interest in prohibiting
dissemination or exhibition of obscene material when the mode of dissemination
carries with it a significant danger of offending the sensibilities of
unwilling recipients or of exposure to juveniles.") (citation
omitted). To the extent that speech has
serious literary, artistic, political, or scientific value, and therefore is
not obscene under the Miller test of obscenity, the state's interest in shielding
unwilling viewers from such speech is tenuous.
Nonetheless, the Court has recognized that in certain limited
circumstances, the state has a legitimate interest in protecting the public
from unwilling exposure to speech that is not obscene. This interest has justified restrictions on
speech "when the speaker intrudes on the privacy of the home, or the
degree of captivity makes it impractical for the unwilling viewer or auditor to
avoid exposure." *474Erznoznik,
422 U.S. at 209, 95 S.Ct. 2268 (citations omitted).
Thus, in FCC
v. Pacifica Foundation,
438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978),
the Court relied on the state's interest in shielding viewers' sensibilities to
uphold a prohibition against profanity in radio broadcasts:
Patently offensive, indecent material presented over the
airwaves confronts the citizen, not only in public, but also in the privacy of
the home, where the individual's right to be left alone plainly outweighs the
First Amendment rights of an intruder.
Because the broadcast audience is constantly tuning in and out, prior
warnings cannot completely protect the listener or viewer from unexpected
program content.
Id.
at 748, 98 S.Ct. 3026 (citationomitted); accord Frisby
v. Schultz,
487 U.S. 474, 485, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) ("Although in many locations, we expect individuals
simply to avoid speech they do not want to hear, the home is
different."); see also Lehman
v. City of Shaker Heights,
418 U.S. 298, 302, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974) (plurality opinion)
(upholding a content-based restriction on the sale of advertising space in
public transit vehicles and noting that "[t]he streetcar audience is a
captive audience").
[16] Although neither the Supreme Court nor the Third Circuit
has recognized a compelling state interest in shielding the sensibilities of
unwilling viewers, beyond laws intended to preserve the privacy of individuals'
homes or to protect captive audiences, we do not read the case law as
categorically foreclosing recognition, in the public library setting, of the
state's interest in protecting unwilling viewers. See Pacifica,
438 U.S. at 749 n. 27, 98 S.Ct. 3026
("Outside the home, the balance between the offensive speaker and the
unwilling audience may sometimes tip in favor of the speaker, requiring
the offended listener to turn away.") (emphasis added). Under certain circumstances, therefore a
public library might have a compelling interest in protecting library patrons
and staff from unwilling exposure to sexually explicit speech that, although
not obscene, is patently offensive.
3. Preventing Unlawful or Inappropriate Conduct
Several of the librarians proffered by the
government testified that unfiltered Internet access had led to occurrences of
criminal or otherwise inappropriate conduct by library patrons, such as public
masturbation, and harassment of library staff and patrons, sometimes rising to
the level of physical assault. As in
the case with patron complaints, however, the government
adduced no quantitative data comparing the frequency of criminal or otherwise
inappropriate patron conduct before the library's use of filters and after the
library's use of filters. The sporadic
anecdotal accounts of the government's library witnesses were countered by
anecdotal accounts by the plaintiffs' library witnesses, that incidents of
offensive patron behavior in public libraries have long predated the advent of
Internet access.
[17] Aside from a public library's interest in preventing
patrons from using the library's Internet terminals to receive obscenity or
child pornography, which constitutes criminal conduct, we are constrained to
reject any compelling state interest in regulating patrons' conduct as a
justification for content-based restrictions on patrons' Internet access. "[T]he Court's First Amendment cases
draw vital distinctions between words and deeds, between ideas and
conduct." Ashcroft,
--- U.S. at ----, 122 S.Ct. at 1403. First Amendment jurisprudence makes clear
that speech may not be restricted on the ground that restricting speech will
reduce crime or other *475 undesirable behavior that the speech is
thought to cause, subject to only a narrow exception for speech that "is
directed to inciting or producing imminent lawless action and is likely to
incite or produce such action." Brandenburg
v. Ohio,
395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam).
"The mere tendency of speech to encourage unlawful acts is
insufficient reason for banning it."
Ashcroft,
--- U.S. at ----, 122 S.Ct. at
1403.
Outside of the narrow "incitement"
exception, the appropriate method of deterring unlawful or otherwise
undesirable behavior is not to suppress the speech that induces such behavior,
but to attach sanctions to the behavior itself. "Among free men, the deterrents ordinarily to be applied to
prevent crime are education and punishment for violations of the law, not
abridgement of the rights of free speech." Kingsley
Int'l Pictures Corp. v. Regents of the Univ. of the State of New York,
360 U.S. 684, 689, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959) (quoting Whitney
v. Cal.,
274 U.S. 357, 378, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring)); see also Bartnicki
v. Vopper,
532 U.S. 514, 529, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001) ("The normal method of deterring unlawful conduct is
to impose an appropriate punishment on the person who engages in it.").
4. Summary
In sum, we reject a public library's interest
in preventing unlawful or otherwise inappropriate patron conduct as a basis for
restricting patrons' access to speech on the Internet. The proper method for a library to deter
unlawful or inappropriate patron conduct, such as harassment or assault of
other patrons, is to impose sanctions on such conduct, such as either removing
the patron from the library, revoking the patron's library privileges, or, in
the appropriate case, calling the police.
We believe, however, that the state interests
in preventing the dissemination of obscenity, child pornography, or in the case
of minors, material harmful to minors, and in protecting library patrons from
being unwillingly exposed to offensive, sexually explicit material, could all
justify, for First Amendment purposes, a public library's use of Internet
filters, provided that use of such filters is narrowly tailored to further
those interests, and that no less restrictive means of promoting those
interests exist. Accordingly, we turn
to the narrow tailoring question.
B. Narrow Tailoring
Having identified the relevant state
interests that could justify content- based restrictions on public libraries'
provision of Internet access, we must determine whether a public library's use
of software filters is narrowly tailored to further those interests. "It is not enough to show that the
Government's ends are compelling; the
means must be carefully tailored to achieve those ends." Sable
Communications of Cal., Inc. v. FCC,
492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). "[M]anifest
imprecision of [a] ban ... reveals that its proscription is not sufficiently
tailored to the harms it seeks to prevent to justify ... substantial
interference with ... speech." FCC
v. League of Women Voters of Cal.,
468 U.S. 364, 392, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984).
The commercially available filters on which
evidence was presented at trial all block many thousands of Web pages that are
clearly not harmful to minors, and many
thousands more pages that, while possibly harmful to minors, are neither
obscene nor child pornography. See
supra, Subsection II.E.7. Even the defendants' own expert, after analyzing
filtering products' performance in public libraries, concluded that of the
blocked Web pages to which library patrons sought access, between 6% and 15%
contained no content *476 that meets even the filtering products' own
definitions of sexually explicit content, let alone the legal definitions of
obscenity or child pornography, which none of the filtering companies that were
studied use as the basis for their blocking decisions. Moreover, in light of the flaws in these
studies, discussed in detail in our findings of fact above, these percentages
significantly underestimate the amount of speech that filters erroneously
block, and at best provide a rough lower bound on the filters' rates of
overblocking. Given the substantial
amount of constitutionally protected speech blocked by the filters studied, we
conclude that use of such filters is not narrowly tailored with respect to the
government's interest in preventing the dissemination of obscenity, child
pornography, and material harmful to minors.
To be sure, the quantitative estimates of the
rates of overblocking apply only to those four commercially available filters
analyzed by plaintiffs' and defendants' expert witnesses. Nonetheless, given the inherent limitations
in the current state of the art of automated classification systems, and the limits of human review in relation to the
size, rate of growth, and rate of change of the Web, there is a tradeoff
between underblocking and overblocking that is inherent in any filtering
technology, as our findings of fact have demonstrated. We credit the testimony of plaintiffs'
expert witness, Dr. Geoffrey Nunberg, that no software exists that can
automatically distinguish visual depictions that are obscene, child pornography,
or harmful to minors, from those that are not.
Nor can software, through keyword analysis or more sophisticated
techniques, consistently distinguish web pages that contain such content from
web pages that do not.
In light of the absence of any automated
method of classifying Web pages, filtering companies are left with the
Sisyphean task of using human review to identify, from among the approximately
two billion web pages that exist, the 1.5 million new pages that are created
daily, and the many thousands of pages whose content changes from day to day,
those particular web pages to be blocked.
To cope with the Web's extraordinary size, rate of growth, and rate of
change, filtering companies that rely solely on human review to block access to
material falling within their category definitions must use a variety of
techniques that will necessarily introduce substantial amounts of
overblocking. These techniques include
blocking every page of a Web site that contains only some content falling
within the filtering companies' category definitions, blocking every Web site
that shares an IP-address with a Web site whose
content falls within the category definitions, blocking "loophole
sites," such as anonymizers, cache sites, and translation sites, and
allocating staff resources to reviewing content of uncategorized pages rather
than re-reviewing pages, domain names, or IP-addresses that have been already
categorized to determine whether their content has changed. While a filtering company could choose not
to use these techniques, due to the overblocking errors they introduce, if a
filtering company does not use such techniques, its filter will be ineffective
at blocking access to speech that falls within its category definitions.
Thus, while it would be easy to design, for
example, a filter that blocks only ten Web sites, all of which are either
obscene, child pornography, or harmful to minors, and therefore completely
avoids overblocking, such a filter clearly would not comply with CIPA, since it
would fail to offer any meaningful protection against the hundreds of thousands
of Web sites containing speech in these categories. As detailed in our findings of fact, any filter that blocks
enough speech to protect against access to visual depictions that are obscene,
child *477 pornography, and harmful to minors, will necessarily
overblock substantial amounts of speech that does not fall within these
categories.
This finding is supported by the government's
failure to produce evidence of any filtering technology that avoids
overblocking a substantial amount of protected speech. Where, as here, strict scrutiny applies to a
content-based restriction on speech, the
burden rests with the government to show that the restriction is narrowly
tailored to serve a compelling government interest. See Playboy,
529 U.S. at 816, 120 S.Ct. 1878 ("When the
Government restricts speech, the Government bears the burden of proving the
constitutionality of its actions.");
see also R.A.V.
v. City of St. Paul,
505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) ("Content-based regulations are presumptively
invalid."). Thus, it is the
government's burden, in this case, to show the existence of a filtering
technology that both blocks enough speech to qualify as a technology protection
measure, for purposes of CIPA, and avoids overblocking a substantial amount of
constitutionally protected speech.
Here, the government has failed to meet its
burden. Indeed, as discussed in our
findings of fact, every technology protection measure used by the government's
library witnesses or analyzed by the government's expert witnesses blocks
access to a substantial amount of speech that is constitutionally protected
with respect to both adults and minors.
In light of the credited testimony of Dr. Nunberg, and the inherent
tradeoff between overblocking and underblocking, together with the government's
failure to offer evidence of any technology protection measure that avoids
overblocking, we conclude that any technology protection measure that blocks a
sufficient amount of speech to comply with CIPA's requirement that it
"protect[ ] against access through such computers
to visual depictions that are--(I) obscene;
(II) child pornography; or (III) harmful to minors" will
necessarily block substantial amounts of speech that does not fall within these
categories. CIPA § 1712 (codified at 20
U.S.C. § 9134(f)(1)(A)). Hence, any
public library's use of a software filter required by CIPA will fail to be narrowly
tailored to the government's compelling interest in preventing the
dissemination, through Internet terminals in public libraries, of visual
depictions that are obscene, child pornography, or harmful to minors.
[18] Where, as here, strict scrutiny applies, the government
may not justify restrictions on constitutionally protected speech on the
ground that such restrictions are necessary in order for the government
effectively to suppress the dissemination of constitutionally unprotected
speech, such as obscenity and child pornography. "The argument ... that protected speech may be banned as a
means to ban unprotected speech .... turns the First Amendment upside down. The Government may not suppress lawful
speech as the means to suppress unlawful speech." Ashcroft,
--- U.S. at ----, 122 S.Ct. at 1404. This rule
reflects the judgment that "[t]he possible harm to society in permitting
some unprotected speech to go unpunished is outweighed by the possibility that
protected speech of others may be muted...." Broadrick
v. Oklahoma,
413 U.S. at 612, 93 S.Ct. 2908.
Thus, in Ashcroft, the Supreme Court rejected the government's argument that a statute criminalizing the
distribution of constitutionally protected "virtual" child
pornography, produced through computer imaging technology without the use of
real children, was necessary to further the state's interest in prosecuting the
dissemination *478 of constitutionally unprotected child pornography
produced using real children, since "the possibility of producing images
by using computer imaging makes it very difficult for [the government] to prosecute
those who produce pornography using real children." Ashcroft,
--- U.S. at ----, 122 S.Ct. at 1404; see also Stanley,
394 U.S. at 567-58, 89 S.Ct. 1243 (holding that
individuals have a First Amendment right to possess obscene material, even
though the existence of this right makes it more difficult for the states to
further their legitimate interest in prosecuting the distribution of
obscenity). By the same token, even if
the use of filters is effective in preventing patrons from receiving
constitutionally unprotected speech, the government's interest in preventing
the dissemination of such speech cannot justify the use of the technology
protection measures mandated by CIPA, which necessarily block substantial
amounts of constitutionally protected speech.
CIPA thus resembles the Communications
Decency Act, which the Supreme Court facially invalidated in Reno
v. ACLU,
521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). Although on its face, the CDA
simply restricted the distribution to minors of speech that was
constitutionally unprotected with respect
to minors, as a practical matter, given Web sites' difficulties in identifying
the ages of Internet users, the CDA effectively prohibited the distribution to
adults of material that was constitutionally protected with respect to adults. [FN30] Similarly,
although on its face, CIPA, like the CDA, requires the suppression of only
constitutionally unprotected speech, it is impossible as a practical matter,
given the state of the art of filtering technology, for a public library to
comply with CIPA without also blocking significant amounts of constitutionally
protected speech. We therefore hold
that a library's use of a technology protection measure required by CIPA is not
narrowly tailored to the government's legitimate interest in preventing the
dissemination of visual depictions that are obscene, child pornography, or in
the case of minors, harmful to minors.
FN30. The Supreme
Court in Reno explained:
The District Court found that at the time of trial existing
technology did not include any effective method for a sender to prevent minors
from obtaining access to its communications on the Internet without also
denying access to adults. The Court
found no effective way to determine the age of a user who is accessing material
through e-mail, mail exploders, newsgroups, or chat rooms. As a practical matter, the Court also found
that it would be prohibitively expensive for noncommercial--as well as some commercial--speakers who have Web sites to
verify that their users are adults.
These limitations must inevitably curtail a significant amount of adult
communication on the Internet.
Reno,
521 U.S. at 876-77, 117 S.Ct. 2329 (citation
omitted).
For the same reason that a public library's
use of software filters is not narrowly tailored to further the library's
interest in preventing its computers from being used to disseminate visual
depictions that are obscene, child pornography, and harmful to minors, a public
library's use of software filters is not narrowly tailored to further the
library's interest in protecting patrons from being unwillingly exposed to
offensive, sexually explicit material.
As discussed in our findings of fact, the filters required by CIPA block
substantial numbers of Web sites that even the most puritanical public library
patron would not find offensive, such as http://federo.com, a Web site
that promotes federalism in Uganda, which N2H2 blocked as "Adults Only,
Pornography," and http://www.vvm.com/bond/home.htm, a site for
aspiring dentists, which was blocked by Cyberpatrol as "Adult/Sexually
Explicit." We list many *479
more such examples in our findings of fact, see supra, and find that
such erroneously blocked sites number in at least the thousands.
Although wehave found large amounts of
overblocking, even if only a small percentage of sites blocked are erroneously
blocked, either with respect to the state's
interest in preventing adults from viewing material that is obscene or child
pornography and in preventing minors from viewing material that is harmful to
minors, or with respect to the state's interest in preventing library patrons
generally from being unwillingly exposed to offensive, sexually explicit
material, this imprecision is fatal under the First Amendment. Cf. Reno,
521 U.S. at 874, 117 S.Ct. 2329 ("[T]he CDA
lacks the precision that the First Amendment requires when a statute regulates
the content of speech."); League
of Women Voters,
468 U.S. at 398, 104 S.Ct. 3106 ("[E]ven if
some of the hazards at which [the challenged provision] was aimed are
sufficiently substantial, the restriction is not crafted with sufficient
precision to remedy those dangers that may exist to justify the significant abridgement
of speech worked by the provision's broad ban....").
While the First Amendment does not demand
perfection when the government restricts speech in order to advance a
compelling interest, the substantial amounts of erroneous blocking inherent in
the technology protection measures mandated by CIPA are more than simply de
minimis instances of human error. "The line between speech
unconditionally guaranteed and speech which may legitimately be regulated,
suppressed, or punished is finely drawn.
Error in marking that line exacts an extraordinary cost." Playboy,
529 U.S. at 817, 120 S.Ct. 1878 (internal
quotation marks and citation omitted).
Indeed, "precision of regulation must be the touchstone in an area
so closely touching our most precious
freedoms." Keyishian
v. Bd. of Regents of the Univ. of the State of N.Y.,
385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) (internal quotation marks and citation omitted); see also Bantam
Books, Inc. v. Sullivan,
372 U.S. 58, 66, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963)
( "The separation of legitimate from illegitimate speech calls for
sensitive tools.") (internal quotation marks and citation omitted). Where the government draws content-based
restrictions on speech in order to advance a compelling government interest,
the First Amendment demands the precision of a scalpel, not a
sledgehammer. We believe that a public
library's use of the technology protection measures mandated by CIPA is not
narrowly tailored to further the governmental interests at stake.
[19] Although the strength of different libraries' interests in
blocking certain forms of speech may vary from library to library, depending on
the frequency and severity of problems experienced by each particular library,
we conclude, based on our findings of fact, that any public library's use of a
filtering product mandated by CIPA will necessarily fail to be narrowly
tailored to address the library's legitimate interests. Because it is impossible for a public
library to comply with CIPA without blocking substantial amounts of speech
whose suppression serves no legitimate state interest, we therefore hold that
CIPA is facially invalid, even under the more stringent standard of facial
invalidity urged on us by the government, which would require upholding CIPA if it is possible
for just a single library to comply with CIPA's conditions without violating
the First Amendment. See supra
Part III.
*480 C.
Less Restrictive Alternatives
The constitutional infirmity of a public
library's use of software filters is evidenced not only by the absence of
narrow tailoring, but also by the existence of less restrictive alternatives
that further the government's legitimate interests. See Playboy,
529 U.S. at 813, 120 S.Ct. 1878 ("If a less
restrictive alternative would serve the Government's purpose, the legislature
must use that alternative."); Sable,
492 U.S. at 126, 109 S.Ct. 2829 ("The Government
may ... regulate the content of constitutionally protected speech in order to
promote a compelling interest if it chooses the least restrictive means to
further the articulated interest.").
[20] As is the case with the narrow tailoring requirement, the
government bears the burden of proof in showing the ineffectiveness of less
restrictive alternatives. "When a
plausible, less restrictive alternative is offered to a content-based speech
restriction, it is the Government's obligation to prove that the alternative
will be ineffective to achieve its goals." Playboy,
529 U.S. at 816, 120 S.Ct. 1878; see also Reno,
521 U.S. at 879, 117 S.Ct. 2329 ("The
breadth of this content-based restriction of speech imposes an especially heavy
burden on the Government to explain why a less restrictive provision would not be as
effective...."); Fabulous
Assocs., Inc. v. Pa. Pub. Util. Comm'n,
896 F.2d 780, 787 (3d Cir.1990) ("We focus
... on the more difficult question whether the Commonwealth has borne its heavy
burden of demonstrating that the compelling state interest could not be served
by restrictions that are less intrusive on protected forms of
expression.") (internal quotation marks and citation omitted).
We find that there are plausible, less
restrictive alternatives to the use of software filters that would serve the
government's interest in preventing the dissemination of obscenity and child
pornography to library patrons. In
particular, public libraries can adopt Internet use policies that make clear to
patrons that the library's Internet terminals may not be used to access illegal
content. Libraries can ensure that
their patrons are aware of such policies by posting them in prominent places in
the library, requiring patrons to sign forms agreeing to comply with the policy
before the library issues library cards to patrons, and by presenting patrons,
when they log on to one of the library's Internet terminals, with a screen that
requires the user to agree to comply with the library's policy before allowing
the user access to the Internet.
Libraries can detect violations of their
Internet use policies either through direct observation or through review of
the library's Internet use logs. In
some cases, library staff or patrons may directly observe a patron accessing obscenity and child pornography. Libraries' Internet use logs, however, also
provide libraries with a means of detecting violations of their Internet use
policies. These logs, which can be kept
regardless whether a library uses filtering software, record the URL of every
Web page accessed by patrons. Although ordinarily the logs do not link
particular URLs with particular patrons, it is possible, using access logs, to
identify the patron who viewed the Web page corresponding to a particular URL,
if library staff discover in the access logs the URL of a Web page containing
obscenity or child pornography. For
example, David Biek, Director of Tacoma Public Library's main branch, testified
that in the course of scanning Internet use logs he has found what looked like
attempts to access child pornography, notwithstanding the fact that Tacoma uses
Websense filtering software. In two
cases, he communicated his findings to law enforcement and turned over the *481
logs to law enforcement in response to a subpoena. [FN31]
FN31. To the extent
that filtering software is effective in identifying URLs of Web pages
containing obscenity or child pornography, libraries may use filtering software
as a tool for identifying URLs in their Internet use logs that fall within
these categories, without requiring patrons to use filtering software. As the study of Benjamin Edelman, an expert
witness for the plaintiffs, demonstrates, it is possible to develop software that automatically tests a
list of URLs, such as the list of URLs in a public library's Internet use logs,
to determine whether any of those URLs would be blocked by a particular
software filter as falling within a particular category. Alternatively, library staff can review the
Internet use logs by hand, skimming the list of URLs for those that are likely
to correspond to Web pages containing obscenity or child pornography, as is the
practice of Tacoma's David Biek, who testified as a government witness. Under either method, public libraries can
assure patrons of their privacy by tracing a given URL to a particular patron
only after determining that the URL corresponds to a Web site whose content is
illegal.
Once a violation of a library's Internet use
policy is detected through the methods described above, a library may either
issue the patron a warning, revoke the patron's Internet privileges, or notify
law enforcement, if the library believes that the patron violated either state
obscenity laws or child pornography laws.
Although these methods of detecting use of library computers to access
illegal content are not perfect, and a library, out of respect for patrons'
privacy, may choose not to adopt such policies, the government has failed to
show that such methods are substantially less effective at preventing patrons
from accessing obscenity and child pornography than software filters. As detailed in our findings of fact, the
underblocking that results from the size, rate of change, and rate of growth of
the Internet significantly impairs the software filters from preventing patrons
from accessing obscenity and child pornography. Unless software filters are themselves perfectly effective at
preventing patrons from accessing obscenity and child pornography, "[i]t
is no response that [a less restrictive alternative] ... may not go perfectly
every time." Playboy,
529 U.S. at 824, 120 S.Ct. 1878; cf.
Denver
Area Educ. Telecomm. Consortium, Inc. v. FCC,
518 U.S. 727, 759, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) ("No provision ... short of an absolute ban, can
offer certain protection against assault by a determined child.").
The government has not offered any data
comparing the frequency with which obscenity and child pornography is accessed
at libraries that enforce their Internet use policies through software filters
with the frequency with which obscenity and child pornography is accessed at
public libraries that enforce their Internet use policies through methods other
than software filters. Although the government's library witnesses offered
anecdotal accounts of a reduction in the use of library computers to access
sexually explicit speech when filtering software was mandated, these anecdotal
accounts are not a substitute for more robust analyses comparing the use of library
computers to access child pornography and material that meets the legal
definition of obscenity in libraries that use blocking software and in
libraries that use alternative
methods. Cf. Playboy,
529 U.S. at 822, 120 S.Ct. 1878 ("[T]he
Government must present more than anecdote and supposition.").
We acknowledge that some library staff will
be uncomfortable using the "tap- on-the-shoulder" method of enforcing
the library's policy against using Internet terminals to access obscenity and
child pornography. The Greenville
County Library, for example, experienced high turnover among library staff when
staff were required to enforce the library's Internet *482 use policy
through the tap-on-the-shoulder technique.
Given filters' inevitable underblocking, however, even a library that uses
filtering will have to resort to a tap-on-the-shoulder method of enforcement,
where library staff observes a patron openly violating the library's Internet
use policy, by, for example, accessing material that is obviously child
pornography but that the filtering software failed to block. Moreover, a library employee's degree of
comfort in using the tap-on-the-shoulder method will vary from employee to
employee, and there is no evidence that it is impossible or prohibitively
costly for public libraries to hire at least some employees who are comfortable
enforcing the library's Internet use policy.
We also acknowledge that use of a tap on the
shoulder delegates to librarians substantial discretion to determine which Web
sites a patron may view. Nonetheless,
we do not believe that this putative "prior restraint" problem can be
avoided through the use of software filters, for they effectively delegate to the filtering company
the same unfettered discretion to determine which Web sites a patron may
view. Moreover, as noted above,
violations of a public library's Internet use policy may be detected not only
by direct observation, but also by reviewing the library's Internet use logs
after the fact, which alleviates the need for library staff to directly confront
patrons while they are viewing obscenity or child pornography.
Similar less restrictive alternatives exist
for preventing minors from accessing material harmful to minors. First, libraries may use the tap-on-the-
shoulder method when minors are observed using the Internet to access material
that is harmful to minors. Requiring
minors to use specific terminals, for example in a children's room, that are in
direct view of library staff will increase the likelihood that library staff
will detect minors' use of the Internet to access material harmful to
minors. Alternatively, public libraries
could require minors to use blocking software only if they are unaccompanied by
a parent, or only if their parent consents in advance to their child's
unfiltered use of the Internet. [FN32] "A court
should not assume that a plausible, less restrictive alternative would be
ineffective; and a court should not
presume parents, given full information, will fail to act." Playboy,
529 U.S. at 824, 120 S.Ct. 1878.
FN32. We need not
decide whether these less restrictive alternatives would themselves be constitutional. See Fabulous
Assocs., Inc. v. Pa. Pub. Util. Comm'n,
896 F.2d 780, 787 n. 6 (3d Cir.1990) ("We
intimate no opinion on the constitutionality of [a less restrictive alternative
to the challenged law] ..., inasmuch as we consider merely [its] comparative
restrictiveness....").
In contrast to the "harmful to
minors" statute upheld in Ginsberg
v. New York,
390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968),
which permitted parents to determine whether to provide their children with
access to material otherwise prohibited by the statute, CIPA, like the
Communications Decency Act, which the Court invalidated in Reno, contains no exception for parental consent:
[W]e noted in Ginsberg that "the prohibition against sales to minors does
not bar parents who so desire from purchasing the magazines for their
children." Under the CDA, by
contrast, neither the parents' consent--nor even their participation--in the
communication would avoid the application of the statute.
Reno,
521 U.S. at 865, 117 S.Ct. 2329 (citation
omitted); see also Ginsberg,
390 U.S. at 639, 88 S.Ct. 1274 ("It is
cardinal with us that the custody, care, and nurture *483 of the child
reside first in the parents, whose primary function and freedom include
preparation for obligations the state can
neither supply nor hinder." (quoting Prince
v. Massachusetts,
321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944))).
The Court in Playboy acknowledged that although a regime of permitting parents
voluntarily to block cable channels containing sexually explicit programming
might not be a completely effective alternative to the challenged law, which
effectively required cable operators to transmit sexually explicit programming
only during particular hours, the challenged law itself was not completely
effective in serving the government's interest:
There can be little doubt, of course, that under a
voluntary blocking regime, even with adequate notice, some children will be
exposed to signal bleed; and we need
not discount the possibility that a graphic image could have a negative impact
on a young child. It must be
remembered, however, that children will be exposed to signal bleed under time
channeling as well.... The record is silent as to the comparative effectiveness
of the two alternatives.
Playboy,
529 U.S. at 826, 120 S.Ct. 1878. Similarly, in this case, the government has
offered no evidence comparing the effectiveness of blocking software and
alternative methods used by public libraries to protect children from material
harmful to minors.
Finally, there are other less restrictive
alternatives to filtering software that further public libraries' interest in
preventing patrons from unwillingly being exposed to patently offensive,
sexually explicit content on the Internet. To the extent that public libraries are
concerned with protecting patrons from accidentally encountering such material
while using the Internet, public libraries can provide patrons with guidance in
finding the material they want and avoiding unwanted material. Some public libraries also offer patrons the
option of using filtering software, if they so desire. Cf. Rowan
v. Post Office Dept.,
397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970)
(upholding a federal statute permitting individuals to instruct the Postmaster
General not to deliver advertisements that are "erotically arousing or
sexually provocative").
With respect to protecting library patrons
from sexually explicit content viewed by other patrons, public libraries have
used a variety of less restrictive methods.
One alternative is simply to segregate filtered from unfiltered
terminals, and to place unfiltered terminals outside of patrons' sight-lines
and areas of heavy traffic. Even the
less restrictive alternative of allowing unfiltered access on only a single
terminal, well out of the line of sight of other patrons, however, is not
permitted under CIPA, which requires the use of a technology protection measure
on every computer in the library. See CIPA § 1721(b)(6)(C) (codified at 47
U.S.C. § 254(h)(6)(C)), CIPA § 1712
(codified at 20
U.S.C. § 9134(f)(1)(A)) (requiring a public library receiving E-rate discounts or
LSTA grants to certify that it "has in place a policy of Internet safety
that includes the operation of a technology protection
measure with respect to any of its computers with Internet access
...." (emphasis added)); In re
Federal State Joint Board on Universal Service: Children's Internet Protection Act, CC Docket No. 96-45,
Report and Order, FCC 01-120, ¶ 30
(Apr. 5, 2001) ("CIPA makes no distinction between computers used only by
staff and those accessible to the public.").
Alternatively, libraries can use privacy
screens or recessed monitors to prevent patrons from unwillingly being exposed
to material viewed by other patrons. We
*484 acknowledge that privacy screens and recessed monitors suffer from
imperfections as alternatives to filtering.
Both impose costs on the library, particularly recessed monitors, which,
according to the government's library witnesses, are expensive. Moreover, some libraries have experienced
problems with patrons attempting to remove the privacy screens. Privacy screens
and recessed monitors also make it difficult for more than one person to work
at the same terminal.
These problems, however, are not
insurmountable. While there is no doubt
that privacy screens and recessed terminals impose additional costs on
libraries, the government has failed to show that the cost of privacy screens
or recessed terminals is substantially greater than the cost of filtering
software and the resources needed to maintain such software. Nor has the government shown that the cost
of these alternatives is so high as to make their use prohibitive. With respect to the problem of patrons
removing privacy screens, we find, based on
the successful use of privacy screens by the Fort Vancouver Regional Library
and the Multnomah County Public Library, that it is possible for public
libraries to prevent patrons from removing the screens. Although privacy screens
may make it difficult for patrons to work at the same terminal side by side
with other patrons or with library staff, a library could provide filtered
access at terminals that lack privacy screens, when patrons wish to use a
terminal with others. Alternatively, a
library can reserve terminals outside of patrons' sight lines for groups of
patrons who wish unfiltered access.
We therefore conclude that the government has
failed to show that the less restrictive alternatives discussed above are
ineffective at furthering the government's interest either in preventing
patrons from using library computers to access visual depictions that are
obscene, child pornography, or in the case of minors, harmful to minors, or in
preventing library patrons from being unwillingly exposed to patently
offensive, sexually explicit speech.
D. Do CIPA's Disabling Provisions Cure the Defect?
[21] The Government argues that even if the use of software
filters mandated by CIPA blocks a substantial amount of speech whose
suppression serves no legitimate state interest, and therefore fails strict
scrutiny's narrow tailoring requirement, CIPA's disabling provisions cure any
lack of narrow tailoring inherent in filtering technology. The disabling provision applicable to libraries receiving LSTA grants states that
"[a]n administrator, supervisor, or other authority may disable a
technology protection measure ... to enable access for bona fide research or
other lawful purposes." CIPA
§ 1712(a)(2) (codified at 20
U.S.C. § 9134(f)(3)). CIPA's disabling
provision with respect to libraries receiving E-rate discounts similarly states
that "[a]n administrator, supervisor, or other person authorized by the
certifying authority ... may disable the technology protection measure
concerned, during use by an adult, to enable access for bona fide research or
other lawful purpose." CIPA § 1721(b) (codified at 47
U.S.C. § 254(h)(6)(D)).
To determine whether the disabling provisions
cure CIPA's lack of narrow tailoring, we must first determine, as a matter of
statutory construction, under what circumstances the disabling provisionspermit
libraries to disable the software filters. [FN33] *485 It is
unclear to us whether CIPA's disabling provisions permit libraries to disable
the filters any time a patron wishes to access speech that is neither
obscenity, child pornography, or in the case of a minor patron, material that
is harmful to minors. Whether CIPA
permits disabling in such instances depends on the meaning of the provisions'
reference to "bona fide research or other lawful purpose." On the one hand, the language "to
enable access for bona fide research or other lawful purpose" could be interpreted
to mean "to enable access to all constitutionally protected
material." As a textual matter,
this reading of the disabling provisions is
plausible. If a patron seeks access to
speech that is constitutionally protected, then it is reasonable to conclude
that the patron has a "lawful purpose," since the dissemination and
receipt of constitutionally protected speech cannot be made unlawful.
FN33. Whereas the
disabling provision applicable to libraries that receive LSTA grants permits
disabling for both adults and minors, the disabling provision applicable to
libraries that receive E-rate discounts permits disabling only during adult
use. Thus, the disabling provision
applicable to libraries receiving E-rate discounts cannot cure the
constitutional infirmity of CIPA's requirement that libraries receiving E- rate
discounts use software filters when their Internet terminals are in use by
minors.
[22][23] Moreover, since a narrower construction of the disabling
provision creates more constitutional problems than a construction of the
disabling provisions that permits access to all constitutionally protected
speech, the broader interpretation is preferable. "[I]f an otherwise acceptable construction of a statute
would raise serious constitutional problems, and where an alternative
interpretation of the statute is fairly possible, we are obligated to construe
the statute to avoid such problems." INS
v. St. Cyr,
533 U.S. 289, 121 S.Ct. 2271, 2279, 150 L.Ed.2d 347 (2001) (internal quotation marks and citations omitted). On the other hand, interpreting CIPA's
disabling provisions to permit disabling for access to all constitutionally
protected speech presents several problems.
First, if "other lawful purpose" means "for the purpose
of accessing constitutionally protected speech," then this reading renders
superfluous CIPA's reference to "bona fide research," which clearly
contemplates some purpose beyond simply accessing constitutionally protected
speech. In general, "courts should
disfavor interpretations of statutes that render language
superfluous." Conn.
Nat'l Bank v. Germain,
503 U.S. 249, 253, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992).
Furthermore, Congress is clearly capable of
explicitly specifying categories of constitutionally unprotected speech, as it
did when it drafted CIPA to require funding recipients to use technology
protection measures that protect against visual depictions that are
"obscene," "child pornography," or, in the case of minors,
"harmful to minors." CIPA
§ 1712(a) (codified at 20
U.S.C. § 9134(f)(1)(A)(i)(I)-(III)); CIPA § 1721(b) (codified at 47
U.S.C. § 254(h)(6)(B)(i)(I)-(III)). If Congress
intended CIPA's disabling provisions simply to permit libraries to disable the
filters to allow access to speech falling outside of these categories, Congress
could have drafted the disabling provisions with greater precision, expressly
permitting libraries to disable the filters "to enable access for any
material that is not obscene, child pornography,
or in the case of minors, harmful to minors," rather than "to enable
access for bona fide research or other lawful purposes," which is the
language that Congress actually chose.
At bottom, however, we need not definitively
construe CIPA's disabling provisions, since it suffices in this case to assume
without deciding that the disabling provisions permit libraries to allow a
patron access to any speech that is constitutionally *486 protected with
respect to that patron. Although this interpretation raises fewer
constitutional problems than a narrower interpretation, this interpretation of
the disabling provisions nonetheless fails to cure CIPA's lack of narrow
tailoring. Even if the disabling
provisions permit public libraries to allow patrons to access speech that is
constitutionally protected yet erroneously blocked by the software filters, the
requirement that library patrons ask a state actor's permission to access
disfavored content violates the First Amendment.
[24] The Supreme Court has made clear that content-based
restrictions that require recipients to identify themselves before being
granted access to disfavored speech are subject to no less scrutiny than
outright bans on access to such speech. In Lamont
v. Postmaster General,
381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965),
for example, the Court held that a federal statute requiring the Postmaster
General to halt delivery of communist propaganda unless the addressee
affirmatively requested the material violated
the First Amendment:
We rest on the narrow ground that the addressee in order to
receive his mail must request in writing that it be delivered. This amounts in our judgment to an
unconstitutional abridgment of the addressee's First Amendment rights. The addressee carries an affirmative
obligation which we do not think the Government may impose on him. This requirement is almost certain to have a
deterrent effect, especially as respects those who have sensitive positions.
Id.
at 307, 85 S.Ct. 1493.
Similarly, in Denver
Area Educational Telecommunications Consortium, Inc. v. FCC,
518 U.S. 727, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996), the Court held unconstitutional a federal law requiring cable
operators to allow access to patently offensive, sexually explicit programming
only to those subscribers who requested access to the programming in advance
and in writing. Id.
at 732- 33, 116 S.Ct. 2374. As in Lamont, the Court in Denver reasoned that this content-based restriction on
recipients' access to speech would have an impermissible chilling effect: "[T]he written notice requirement will
... restrict viewing by subscribers who fear for their reputations should the
operator, advertently or inadvertently, disclose the list of those who wish to
watch the 'patently offensive' channel."
Id.
at 754, 116 S.Ct. 2374; see also Fabulous
Assocs., Inc. v. Pa. Pub. Util. Comm'n,
896 F.2d 780, 785 (3d Cir.1990) (considering the
constitutionality of a state law requiring telephone users who wish to listen to sexually explicit
telephone messages to apply for an access code to receive such messages, and
invalidating the law on the ground that "[a]n identification requirement
exerts an inhibitory effect").
We believe that CIPA's disabling provisions
suffer from the same flaws as the restrictions on speech in Lamont, Denver, and Fabulous
Associates. By requiring library patrons affirmatively to request permission
to access certain speech singled out on the basis of its content, CIPA will
deter patrons from requesting that a library disable filters to allow the
patron to access speech that is constitutionally protected, yet sensitive in
nature. As we explain above, we find
that library patrons will be reluctant and hence unlikely to ask permission to
access, for example, erroneously blocked Web sites containing information about
sexually transmitted diseases, sexual identity, certain medical conditions, and
a variety of other topics. As discussed
in our findings of fact, software filters block access to a wide range of
constitutionally protected speech, including *487 Web sites containing
information that individuals are likely to wish to access anonymously.
That library patrons will be deterred from
asking permission to access Web sites containing certain kinds of content is
evident as a matter of common sense as well as amply borne out by the trial
record. Plaintiff Emmalyn Rood, who
used the Internet at a public library to research information relating to her
sexual identity, testified that she would have been unwilling as a young teen to ask a librarian to disable filtering
software so that she could view materials concerning gay and lesbian issues. [FN34] Similarly, plaintiff Mark Brown stated that
he would have been too embarrassed to ask a librarian to disable filtering
software if it had impeded his ability to research surgery options for his
mother when she was treated for breast cancer. [FN35] As explained in
our findings of fact, see supra at Subsection II.D.2.b, the reluctance
of patrons to request permission to access Web sites that were erroneously
blocked is further established by the low number of patron unblocking requests,
relative to the number of erroneously blocked Web sites, in those public
libraries that use software filters and permit patrons to request access to
incorrectly blocked Web sites. Cf. Fabulous
Assocs.,
896 F.2d at 786 ("On the record before us,
there is more than enough evidence to support the district court's finding that
access codes will chill the exercise of some users' right to hear protected
communications.").
FN34. Software
filters sometimes incorrectly block access to, inter alia, Web sites
dealing with issues relating to sexual identity. For example, the "Gay and Lesbian Chamber of Southern
Nevada," http:// www.lambdalv.com, "a forum for the business
community to develop relationships within the Las Vegas lesbian, gay
transsexual, and bisexual community" was blocked by N2H2 as "Adults Only,
Pornography." The home page of the Lesbian and Gay Havurah of the
Long Beach, California Jewish Community Center, http://www.
compupix.com/gay/havurah.htm, was blocked by N2H2 as "Adults Only,
Pornography," by Smartfilter as "Sex," and by Websense as
"Sex."
FN35. Among the
types of Web sites that filters erroneously block are Web sites dealing with
health issues, such as the Web site of the Willis Knighton Cancer Center, a
Shreveport, Louisiana cancer treatment facility, http://cancerftr.wkmc.com,
which was blocked by Websense under the "Sex" category.
To be sure, the government demonstrated that
it is possible for libraries to permit patrons to request anonymously that a
particular Web site be unblocked. In particular, the Tacoma Public Library has
configured its computers to present patrons with the option, each time the
software filter blocks their access to a Web page, of sending an anonymous
email to library staff requesting that the page be unblocked. Moreover, a library staff member
periodically scans logs of URLs blocked by the filters, in an effort to
identify erroneously blocked sites, which the library will subsequently
unblock. Although a public library's ability
to permit anonymous unblocking requests addresses the deterrent effect of
requiring patrons to identify themselves before gaining access to a particular Web site, we believe
that it fails adequately to address the overblocking problem.
In particular, even allowing anonymous
requests for unblocking burdens patrons' access to speech, since such requests
cannot immediately be acted on. Although the Tacoma Public Library, for
example, attempts to review requests for unblocking within 24 hours, requests
sometimes are not reviewed for several days.
And delays are inevitable in libraries with branches that lack the staff
necessary immediately to review patron unblocking requests. Because*488 many Internet users
"surf" the Web, visiting hundreds of Web sites in a single session
and spending only a short period of time viewing many of the sites, the
requirement that a patron take the time to affirmatively request access to a
blocked Web site and then wait several days until the site is unblocked will,
as a practical matter, impose a significant burden on library patrons' use of
the Internet. Indeed, a patron's time
spent requesting access to an erroneously blocked Web site and checking to
determine whether access was eventually granted is likely to exceed the amount
of time the patron would have actually spent viewing the site, had the site not
been erroneously blocked. This delay is especially burdensome in view of many
libraries' practice of limiting their patrons to a half hour or an hour of
Internet use per day, given the scarcity of terminal time in relation to patron
demand.
The burden of requiring library patrons to
ask permission to view Web sites whose
content is disfavored resembles the burden that the Supreme Court found
unacceptable in Denver, which invalidated a federal law requiring cable systems
operators to block subscribers' access to channels containing sexually explicit
programming, unless subscribers requested unblocking in advance. The Court reasoned that "[t]hese
restrictions will prevent programmers from broadcasting to viewers who select
programs day by day (or, through 'surfing,' minute by minute)...." Denver,
518 U.S. at 754, 116 S.Ct. 2374. Similarly, in Fabulous
Associates, the Third Circuit explained that
a law preventing adults from listening to sexually explicit phone messages
unless they applied in advance for access to such messages would burden adults'
receipt of constitutionally protected speech, given consumers' tendency to
purchase such speech on impulse. See Fabulous
Assocs.,
896 F.2d at 785 (noting that officers of two
companies that sell access to sexually explicit recorded phone messages
"testified that it is usually 'impulse callers' who utilize these types of
services, and that people will not call if they must apply for an access
code").
In sum, in many cases, as we have noted above,
library patrons who have been wrongly denied access to a Web site will decline
to ask the library to disable the filters so that the patron can access the Web
site. Moreover, even if patrons
requested unblocking every time a site is erroneously blocked, and even if
library staff granted every such request, a public library's use of blocking software would still impermissibly burden
patrons' access to speech based on its content. The First Amendment jurisprudence of the Supreme Court and the
Third Circuit makes clear that laws imposing content-based burdens on access to
speech are no less offensive to the First Amendment than laws imposing content-
based prohibitions on speech:
It is of no moment that the statute does not impose a
complete prohibition. The distinction between laws burdening and laws banning
speech is but a matter of degree. The
Government's content-based burdens must satisfy the same rigorous scrutiny as
its content-based bans.... When the purpose and design of a statute is to
regulate speech by reason of its content, special consideration or latitude is
not afforded to the Government merely because the law can somehow be described
as a burden rather than outright suppression.
United
States v. Playboy Entm't Group, Inc.,
529 U.S. 803, 812, 826, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) (invalidating a federal law requiring cable television
operators to limit the transmission of sexually explicit programming to the
hours between 10:00 p.m. and 6:00 a.m.);
see also Fabulous
Assocs.,
896 F.2d at 785 ("[H]ere ... there is no
outright prohibition of indecent *489 communication. However, the First Amendment protects
against government inhibition as well as prohibition.") (internal
quotation marks and citation omitted).
Even if CIPA's disabling provisions could be
perfectly implemented by library staff
every time patrons request access to an erroneously blocked Web site, we hold
that the content-based burden that the library's use of software filters places
on patrons' access to speech suffers from the same constitutional deficiencies
as a complete ban on patrons' access to speech that was erroneously blocked by
filters, since patrons will often be deterred from asking the library to
unblock a site and patron requests cannot be immediately reviewed. We therefore hold that CIPA's disabling
provisions fail to cure CIPA's lack of narrow tailoring.
VI. Conclusion;
Severability
Based upon the foregoing discussion, we hold
that a public library's content- based restriction on patrons' access to speech
on the Internet is subject to strict scrutiny.
Every item in a library's print collection has been selected because
library staff, or a party to whom staff delegates the decision, deems the
content to be particularly valuable. In
contrast, the Internet, as a forum, is open to any member of the public to
speak, and hence, even when a library provides filtered Internet access, it
creates a public forum in which the vast majority of the speech has been
reviewed by neither librarians nor filtering companies. Under public forum doctrine, where the state
creates such a forum open to any member of the public to speak on an unlimited
number of subjects, the state's decision selectively to exclude certain speech
on the basis of its content, is subject to strict scrutiny, since such
exclusions risk distorting the marketplace
of ideas that the state has created.
Application of strict scrutiny to public
libraries' content-based restrictions on their patrons' access to the Internet
finds further support in the analogy to traditional public fora, such as
sidewalks, parks, and squares, in which content-based restrictions on speech
are always subject to strict scrutiny. Like these traditional public fora,
Internet access in public libraries uniquely promotes First Amendment values,
by offering low barriers to entry to speakers and listeners. The content of speech on the Internet is as
diverse as human thought, and the extent to which the Internet promotes First
Amendment values is evident from the sheer breadth of speech that this new
medium enables.
To survive strict scrutiny, a public
library's use of filtering software must be narrowly tailored to further a
compelling state interest, and there must be no less restrictive alternative that
could effectively further that interest. We find that, given the crudeness of
filtering technology, any technology protection measure mandated by CIPA will
necessarily block access to a substantial amount of speech whose suppression
serves no legitimate government interest.
This lack of narrow tailoring cannot be cured by CIPA's disabling
provisions, because patrons will often be deterred from asking the library's
permission to access an erroneously blocked Web page, and anonymous requests
for unblocking cannot be acted on without delaying the patron's access to the blocked Web page, thereby impermissibly
burdening access to speech on the basis of its content.
Moreover, less restrictive alternatives exist
to further a public library's legitimate interests in preventing its computers
from being used to access obscenity, child pornography, or in the case of
minors, material harmful to minors, and in preventing patrons from being
unwillingly exposed to patently offensive, sexually explicit speech. *490 Libraries may use a variety of
means to monitor their patrons' use of the Internet and impose sanctions on
patrons who violate the library's Internet use policy. To protect minors from material harmful to
minors, libraries could grant minors unfiltered access only if accompanied by a
parent, or upon parental consent, or could require minors to use unfiltered
terminals in view of library staff. To
prevent patrons from being unwillingly exposed to offensive, sexually explicit
content, libraries can offer patrons the option of using blocking software, can
place unfiltered terminals outside of patrons' sight lines, and can use privacy
screens and recessed monitors. While
none of these less restrictive alternatives are perfect, the government has
failed to show that they are significantly less effective than filtering
software, which itself fails to block access to large amounts of speech that
fall within the categories sought to be blocked.
[25] In view of the severe limitations of filtering technology
and the existence of these less restrictive alternatives, we conclude that it
is not possible for a public library to
comply with CIPA without blocking a very substantial amount of constitutionally
protected speech, in violation of the First Amendment. Because this conclusion derives from the
inherent limits of the filtering technology mandated by CIPA, it holds for any
library that complies with CIPA's conditions.
Hence, even under the stricter standard of facial invalidity proposed by
the government, which would require us to uphold CIPA if only a single library
can comply with CIPA's conditions without violating the First Amendment, we
conclude that CIPA is facially invalid, since it will induce public libraries,
as state actors, to violate the First Amendment. Because we hold that CIPA is invalid on these grounds, we need
not reach the plaintiffs' alternative theories that CIPA is invalid as a prior
restraint on speech and is unconstitutionally vague. Nor need we decide whether CIPA is invalid because it requires
public libraries, as a condition on the receipt of federal funds, to relinquish
their own First Amendment rights to provide the public with unfiltered Internet
access, a theory that we nonetheless feel constrained to discuss (at length) in
the margin. [FN36]
FN36. Although in
light of our disposition of the plaintiffs' Dole claim, we do not rule upon plaintiffs' contention that
CIPA's conditioning of funds on the installation of filtering software violates
the doctrine of unconstitutional conditions, we are mindful of the need to
frame the disputed legal issues and to
develop a full factual record for the certain appeal to the Supreme Court. Cf. Ashcroft
v. ACLU,
--- U.S. ----, 122 S.Ct. 1700, 152 L.Ed. 2d 771 (2002) (remanding the case to the Court of Appeals to review the
legal and factual bases on which the District Court granted plaintiffs' motion
for a preliminary injunction after vacating its opinion that relied on a
different ground from the ones used by the District Court). Although we do not decide the plaintiffs'
unconstitutional conditions claim, we think that our findings of fact on public
libraries, their use of the Internet, and the technological limitations of
Internet filtering software, see supra Subsections II.D E, and our
framing of the legal issue here, would allow the Supreme Court to decide the
issue if it deems it necessary to resolve this case.
The doctrine of unconstitutional conditions "holds
that the government 'may not deny a benefit to a person on a basis that
infringes his constitutionally protected ... freedom of speech' even if he has
no entitlement to that benefit." Bd.
of County Comm'rs v. Umbehr,
518 U.S. 668, 674, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996) (quoting Perry
v. Sindermann,
408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972)). In this case,
the plaintiffs argue that CIPA imposes an unconstitutional condition on
libraries who receive E-rate and LSTA subsidies by requiring them, as a
condition on their receipt of federal funds, to surrender their First Amendment right to provide the public
with access to constitutionally protected speech. Under this theory, even if it does not violate the First
Amendment for a public library to use filtering software, it nonetheless
violates the First Amendment for the federal government to require public
libraries to use filters as a condition of the receipt of federal funds.
The government contends that this case does not fall under
the unconstitutional conditions framework because: (1) as state actors, the recipients of the funds (the public
libraries) are not protected by the First Amendment, and therefore are not being
asked to relinquish any constitutionally protected rights; and (2) although library patrons are
undoubtedly protected by the First Amendment, they are not the funding
recipients in this case, and libraries may not rely on their patrons' rights in
order to state an unconstitutional conditions claim.
It is an open question in this Circuit whether Congress may
violate the First Amendment by restricting the speech of public entities, such
as municipalities or public libraries.
The only U.S. Supreme Court opinion to weigh in on the issue is a concurrence
by Justice Stewart, joined by Chief Justice Burger and Justice Rehnquist, in
which he opined that municipalities and other arms of the state are not
protected by the First Amendment from governmental interference with their
expression. See Colum.
Broad. Sys., Inc. v. Democratic Nat'l Comm.,
412 U.S. 94, 139, 93 S.Ct.
2080, 36 L.Ed.2d 772 (1973) (Stewart, J.,
concurring) ("The First Amendment protects the press from governmental
interference; it confers no analogous
protection on the Government.");
see also id.
at 139 n. 7, 93 S.Ct. 2080 ("The purpose of
the First Amendment is to protect private expression and nothing in the
guarantee precludes the government from controlling its own expression or that of
its agents.") (quoting Thomas Emerson, The System of Freedom of
Expression 700 (1970) (internal quotation marks omitted)). The Court has subsequently made it clear,
however, that it considers it to be an open question whether municipalities
acting in their capacity as employers have First Amendment rights, suggesting
that the question whether public entities are ever protected by the First
Amendment also remains open. See City
of Madison Joint Sch. Dist. No. 8 v. Wisc. Employment Relations Comm'n,
429 U.S. 167, 175 n. 7, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976) ("We need not decide whether a municipal corporation
as an employer has First Amendment rights to hear the views of its citizens and
employees.").
Several courts of appeals have cited Justice Stewart's
concurrence in Columbia Broadcasting Systems and have, with little
discussion or analysis, concluded that a "government ... speaker is not
itself protected by the first amendment."
Warner
Cable Communications, Inc. v. City of Niceville,
911 F.2d 634, 638 (11th Cir.1990); see also NAACP
v. Hunt, 891
F.2d 1555, 1565 (11th Cir.1990) ("[T]he
First Amendment protects citizens' speech only from government regulation; government speech itself is not protected by
the First Amendment."); Student
Gov't Ass'n v. Bd. of Trustees of the Univ. of Mass.,
868 F.2d 473, 481 (1st Cir.1989) (concluding that
the legal services organization run by a state university, "as a state
entity, itself has no First Amendment rights"); Estiverne
v. La. State Bar Ass'n,
863 F.2d 371, 379 (5th Cir.1989) (noting that
"the first amendment does not protect government speech").
We do not think that the question whether public libraries
are protected by the First Amendment can be resolved as simply as these cases
suggest. This difficulty is
demonstrated by the reasoning of the Seventh Circuit in a case in which that
court considered whether municipalities are protected by the First Amendment
and noted that it is an open question that could plausibly be answered in the
affirmative, yet declined to decide it:
Only a few cases address the question whether
municipalities or other state subdivisions or agencies have any First Amendment
rights.... The question is an open one in this circuit, and we do not consider
the answer completely free from doubt.
For many purposes, for example diversity jurisdiction and Fourteenth
Amendment liability, municipalities are treated by the law as if they were
persons. Monell
v. Department of Social Services,
436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Moor
v. County of Alameda,
411 U.S. 693, 717-18, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). There is at least
an argument that the marketplace of ideas would be unduly curtailed if
municipalities could not freely express themselves on matters of public
concern, including the subsidization of housing and the demographic makeup of
the community.
To the extent, moreover, that a municipality is the voice
of its residents--is, indeed, a megaphone amplifying voices that might not
otherwise be audible--a curtailment of its right to speak might be thought a
curtailment of the unquestioned First Amendment rights of those residents. See Meir Dan Cohen, "Freedoms
of Collective Speech: A Theory of
Protected Communications by Organizations, Communities, and the State," 79
Calif. L.Rev. 1229, 1261-63 (1991); cf. Student
Government Ass'n v. Board of Trustees, supra,
868 F.2d at 482.
Thus if federal law imposed a fine on municipalities that passed
resolutions condemning abortion, one might suppose that a genuine First
Amendment issue would be presented. Against
this suggestion can be cited the many cases which hold that municipalities lack
standing to invoke the Fourteenth Amendment against actions by the state. E.g., Coleman
v. Miller,
307 U.S. 433, 441, 59 S.Ct. 972, 83 L.Ed. 1385 (1939); Williams
v. Mayor & City Council of Baltimore,
289 U.S. 36, 40, 53 S.Ct. 431, 77 L.Ed. 1015 (1933); City
of East St. Louis v. Circuit Court for the Twentieth Judicial Circuit,
986 F.2d 1142, 1144 (7th Cir.1993). But it is one thing to hold that a
municipality cannot interpose the Fourteenth Amendment between itself and the
state of which it is the creature, Anderson
v. City of Boston,
376 Mass. 178, 380 N.E.2d 628, 637-38 (1978),
appeal dismissed for want of a substantial federal question, 439
U.S. 1060, 99 S.Ct. 822, 59 L.Ed.2d 26 (1979),
and another to hold that a municipality has no rights against the federal
government or another state. River
Vale Tp. v. Town of Orangetown,
403 F.2d 684, 686 (2d Cir.1968), distinguishes
between these two types of cases.
Creek
v. Village of Westhaven,
80 F.3d 186, 192-93 (7th Cir.1996).
We also note that there is no textual support in the First
Amendment for distinguishing between, for example, municipal corporations, and
private corporations, which the Court has recognized have cognizable First
Amendment rights. First
Nat'l Bank of Boston v. Bellotti,
435 U.S. 765, 775-76, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978). Unlike other
provisions in the Bill of Rights, which the Supreme Court has held to be
"purely personal" and thus capable of being invoked only by
individuals, the First Amendment is not phrased in terms of who holds the
right, but rather what is protected. Compare
U.S.
Const. amend v. ("No person shall be
held to answer ...") (emphasis added) with U.S.
Const. amend I ("Congress shall make no law ... abridging the freedom of
speech, or of the press ...."); see also United
States v. White,
322 U.S. 694, 698-701, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944) (holding that the privilege against self-incrimination applies
only to natural persons).
The Supreme Court relied on this distinction (i.e., that
the First Amendment protects a class of speech rather than a class of speakers)
in a similar context in Bellotti. There, the Court
invalidated a Massachusetts statute that prohibited corporations from spending
money to influence ballot initiatives that did not bear directly on their
"property, business or assets."
Id.
at 768, 98 S.Ct. 1407. In so holding, the Court rejected the argument that the First
Amendment protects only an individual's expression. The Court wrote:
The Constitution often protects interests broader than
those of the party seeking their vindication.... The proper question therefore
is not whether corporations "have" First Amendment rights and, if so,
whether they are coextensive with those of natural persons. Instead, the question must be whether [the
government is] abridg[ing] expression that the First Amendment was meant to
protect.
Id.
at 776, 98 S.Ct. 1407. The Court thus concluded that corporations are entitled to assert
First Amendment claims as speakers, noting that "[t]he inherent worth of
the speech in terms of its capacity for informing the public does not depend upon the identity
of its source, whether corporation, association, union, or
individual." Id.
at 777, 98 S.Ct. 1407.
In view of the foregoing, the notion that public libraries
may assert First Amendment rights for the purpose of making an unconstitutional
conditions claim is clearly plausible, and may well be correct. But even if it is not, we think it plausible
that they could rely on their patrons' rights, even though their patrons are
not the ones who are directly receiving the federal funding. In similar cases, the Supreme Court has
entertained unconstitutional conditions claims both by the organizations that
receive federal funding and by their constituents. See Legal
Servs. Corp. v. Velazquez,
531 U.S. 533, 537, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001) ( "Lawyers employed by New York City LSC grantees,
together with private LSC contributors, LSC indigent clients, and various state
and local public officials whose governments contribute to LSC grantees,
brought suit ... to declare the restriction [on LSC lawyers' ability advocate
the amendment of or to challenge the constitutionality of existing welfare law]
... invalid."); Rust
v. Sullivan,
500 U.S. 173, 181, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) ("Petitioners are Title X grantees and doctors who
supervise Title X funds suing on behalf of themselves and their patients....
Petitioners challenged the regulations on the grounds that ... they violate the First and Fifth Amendment
rights of Title X clients and the First Amendment rights of Title X health
providers."); FCC
v. League of Women Voters of Cal.,
468 U.S. 364, 370 n. 6, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984) (reviewing a First Amendment challenge to conditions on public
broadcasters' receipt of federal funds, in which the plaintiffs included not
only the owner of a public television station, but also viewers of the
station's programs, including the League of Women Voters, and "Congressman
Henry Waxman, ... a regular listener and viewer of public broadcasting").
The question whether CIPA's requirement that libraries use
filtering software constitutes an unconstitutional condition is not an easy
one. The Supreme Court has held that it
violates the First Amendment for the federal government to require public
broadcasting stations that receive federal funds not to editorialize, see League
of Women Voters,
468 U.S. at 366, 402, 104 S.Ct. 3106; for states to subsidize "newspaper and
religious, professional, trade, and sports journals," but not
"general interest magazines," Ark.
Writers' Project, Inc. v. Ragland,
481 U.S. 221, 223, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987); for a state
university to subsidize student publications only on the condition that they do
not "primarily promote[ ] or manifest[ ] a particular belief in or about a
deity or an ultimate reality," Rosenberger
v. Rector & Visitors of Univ. of Va.,
515 U.S.
819, 823, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); and for the federal government to prevent
legal services providers who receive federal funds from seeking to "amend
or otherwise challenge existing welfare law." Velazquez,
531 U.S. at 537, 121 S.Ct. 1043. On the other hand, the Supreme Court has
held that it does not violate the First Amendment for the federal government to
require healthcare providers who receive federal funds not to "encourage,
promote or advocate abortion as a method of family planning," Rust,
500 U.S. at 180, 111 S.Ct. 1759; for the federal government to subsidize
charitable organizations only if they do not engage in lobbying activity, see
Regan
v. Taxation with Representation,
461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983); and for the National Endowment for the Arts,
in awarding grants on the basis of artistic excellence, to "take into
consideration general standards of decency and respect for the diverse beliefs
and values of the American Public."
NEA
v. Finley,
524 U.S. 569, 572, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998).
In light of the facts that we discuss above regarding the
operation of public libraries, and the limits of Internet filtering software, see
supra Sections II.D E, we believe that the plaintiffs have a good argument
that this case is more analogous to League
of Women Voters, Arkansas
Writers' Project, and Velazquez than it is to Rust, Finley and Taxation
with Representation. Like the law invalidated in League
of Women
Voters, which targeted editorializing, and
the law invalidated in Arkansas
Writers' Project, which targeted general
interest magazines but not "religious, professional, trade, and sports
journals," the law in this case places content-based restrictions on
public libraries' possible First Amendment right to provide patrons with access
to constitutionally protected material.
See Arkansas
Writers' Project,
481 U.S. at 229, 107 S.Ct. 1722 ("[T]he
basis on which Arkansas differentiates between magazines is particularly
repugnant to First Amendment principles:
a magazine's tax status depends entirely on its content. Above all else, the First Amendment means
that government has no power to restrict expression because of its message, its
ideas, its subject matter, or its content.") (internal quotation marks and
citations omitted); League
of Women Voters,
468 U.S. at 383, 104 S.Ct. 3106 ("[T]he
scope of [the challenged statute's] ban is defined solely on the basis of the
content of the suppressed speech."). See generally Rosenberger,
515 U.S. at 828, 115 S.Ct. 2510 ("It is
axiomatic that the government may not regulate speech based on its substantive
content or the message it conveys.").
Because of the technological limitations of filtering software described
in such detail above, Congress's requirement that public libraries use such
software is in effect a requirement that public libraries block a substantial
amount of constitutionally protected speech on the basis of its content. Plaintiffs' argument that the federal
government may not require public libraries who receive federal funds to
restrict the availability of constitutionally protected Web sites solely on the
basis of the sites' content finds further support in the role that public
libraries have traditionally served in maintaining First Amendment values. As evidenced by the many public libraries
that have endorsed the Freedom to Read Statement and the Library Bill of
Rights, see supra Subsection II.D.1, public libraries seemingly have a
duty to challenge prevailing orthodoxy and make available to the public
controversial, yet constitutionally protected material, even if it means
drawing the ire of the community. See Bd.
of Educ. v. Pico,
457 U.S. 853, 915, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982) (Rehnquist, J., dissenting) (noting that "public
libraries" are "designed for freewheeling inquiry").
By interfering with public libraries' discretion to make
available to patrons as wide a range of constitutionally protected speech as
possible, the federal government is arguably distorting the usual functioning
of public libraries as places of freewheeling inquiry. The Velazquez Court, in invalidating the federal government's
restrictions on the ability of federally funded legal services providers to
challenge the constitutionality of welfare laws, relied on the manner in which
the restrictions that the federal government placed on legal services' attorneys' speech distorted the usual
functioning of the judicial system:
[T]he Government seeks to use an existing medium of
expression and to control it, in a class of cases, in ways which distort its
usual functioning.... The First Amendment forb[ids] the Government from using
the forum in an unconventional way to suppress speech inherent in the nature of
the medium.
531
U.S. at 543, 121 S.Ct. 1043. By the same token, CIPA arguably distorts
the usual functioning of public libraries both by requiring libraries to: (1) deny patrons access to constitutionally
protected speech that libraries would otherwise provide to patrons; and (2) delegate decision making to private
software developers who closely guard their selection criteria as trade secrets
and who do not purport to make their decisions on the basis of whether the
blocked Web sites are constitutionally protected or would add value to a public
library's collection.
At all events, CIPA clearly does not seem to serve the
purpose of limiting the extent of government speech given the extreme diversity
of speech on the Internet. Nor can
Congress's decision to subsidize Internet access be said to promote a
governmental message or constitute governmental speech, even under a generous
understanding of the concept. As the
Court noted in Reno
v. ACLU,
521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), "[i]t is no exaggeration to
conclude that the content on the Internet is as diverse as human
thought." Id.
at 852, 117 S.Ct. 2329 (internal quotation marks
omitted). Even with software filters in
place, the sheer breadth of speech available on the Internet defeats any claim
that CIPA is intended to facilitate the dissemination of governmental
speech. Like in Velazquez, "there is no programmatic message of the kind
recognized in Rust and which sufficed there to allow the Government to
specify the advice deemed necessary for its legitimate objectives." Velazquez,
531 U.S. at 548, 121 S.Ct. 1043.
In sum, we think that the plaintiffs have good arguments
that they may assert an unconstitutional conditions claim by relying either on
the public libraries' First Amendment rights or on the rights of their
patrons. We also think that the
plaintiffs have a good argument that CIPA's requirement that public libraries
use filtering software distorts the usual functioning of public libraries in
such a way that it constitutes an unconstitutional condition on the receipt of
funds. We do not decide these issues,
confident that our findings of fact on the functioning of public libraries,
their use of the Internet, and the technological limitations of Internet
filtering software, see supra Sections II.D E, would allow the Supreme
Court to decide the unconstitutional conditions claim if the Court deems it
necessary.
*494 [26] Having determined that CIPA violates the First Amendment,
we would usually be required to determine whether CIPA is severable from the
remainder of the statutes governing LSTA and E-rate funding. Neither party,
however, has advanced the argument that CIPA is not severable from the
remainder the Library Services and Technology Act and Communications Act of
1934 (the two statutes governing LSTA and E-rate funding, respectively), and at
all events, we think that CIPA is severable.
[27] "The inquiry into whether a statute is severable is
essentially an inquiry into legislative intent." Minn.
v. Mille Lacs Band of Chippewa Indians,
526 U.S. 172, 191, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999). "Unless it
is evident that the legislature would not have enacted those provisions which
are within its power, independently of that which is not, the invalid part *495
may be dropped if what is left is fully operative as a law." Buckley
v. Valeo,
424 U.S. 1, 108, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (internal quotation marks and citation omitted). There is no doubt that if we were to strike
CIPA from the sections of the United States Code where it is currently
codified, the remaining statutory sections, providing eligible public libraries
with E-rate discounts and LSTA grants, would be fully operative as law. Indeed, the LSTA and E-rate programs existed
prior to the enactment of CIPA in substantially the same form as they would
exist were we to strike CIPA and leave the
rest of the programs intact.
The second question, whether Congress would
in this case have chosen to repeal the LSTA and E-rate subsidy programs instead
of continuing to fund them if it had known that CIPA's limitations on these
programs were constitutionally invalid, is less clear. CIPA contains "separability"
clauses that state that if any of its additions to the statutes governing the
LSTA and E-rate programs are found to be unconstitutional, Congress intended to
effectuate as much of CIPA's amendments as possible. [FN37] We interpret these clauses to mean, for
example, that if a court were to find that CIPA's requirements are
unconstitutional with respect to adult patrons, but permissible with respect to
minors, that Congress intended to have the court effectuate only the provisions
with respect to minors. These
separability clauses do not speak to the situation before us, however, where we
have found that CIPA is facially unconstitutional in its entirety.
FN37. CIPA § 1712(a)(2) contains a provision titled "Separability,"
which is codified in the Library Services and Technology Act, 20
U.S.C. § 9134(f)(6), and provides:
"If any provision of this subsection is held invalid, the remainder
of this subsection shall not be affected thereby." CIPA section 1721(e)
also contained a similar provision that applied to E- rate funding, although it
was not codified in the Communications Act. That section, also titled "Separability,"
provided: "If any provision of
paragraph (5) or (6) of section
254(h) of the Communications Act of 1934, as
amended by this section, or the application thereof to any person or
circumstance is held invalid, the remainder of such paragraph and the
application of such paragraph to other persons or circumstances shall not be
affected thereby." CIPA § 1721(e).
Nevertheless, the government has not pointed
to anything in the legislative history or elsewhere to suggest that Congress
intended to discontinue funding under the LSTA and E-rate programs unless it
could effectuate CIPA's restrictions on the funding. And Congress's decision, prior to CIPA's enactment, to subsidize
Internet access through the LSTA and E-rate programs without such restrictions,
counsels that we reach the opposite conclusion. At bottom, we think that it is unclear what Congress's intent was
on this point, and in the absence of such information, we exercise a
presumption in favor of severability. Regan
v. Time, Inc.,
468 U.S. 641, 653, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984) ("[T]he presumption is in favor of
severability."); cf. Velazquez
v. Legal Servs. Corp.,
164 F.3d 757, 773 (2d Cir.1999), aff'd 531
U.S. 533, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001)
(applying a presumption in favor of severability in the face of uncertainty
whether Congress intended to fund the Legal Services Corporation even if a
restriction on the funding was to be
declared invalid).
For the foregoing reasons, we will enter a
final judgment declaring Sections 1712(a)(2) and 1721(b) of the Children's
Internet Protection Act, codified at 20
U.S.C. § 9134(f) and 47
U.S.C. § 254(h)(6), respectively, to be facially invalid under the First
Amendment and permanently enjoining the defendants from enforcing those
provisions.
*496 ORDER
AND NOW, this 31st day of May, 2002, based on
the foregoing findings of fact and conclusions of law, it is hereby ORDERED
that:
(1) judgment is entered in favor of the
plaintiffs and against the defendants, declaring that § § 1712(a)(2) and 1721(b) of the Children's
Internet Protection Act, 20
U.S.C. § 9134(f) and 47
U.S.C. § 254(h)(6), are facially invalid under the First Amendment to the
United States Constitution; and
(2) the United States, Michael Powell, in his
official capacity as Chairman of the Federal Communications Commission, the
Federal Communications Commission, Beverly Sheppard, in her official capacity
as Acting Director of the Institute of Museum and Library Services, and the
Institute of Museum and Library Services are permanently enjoined from
withholding federal funds from any public library for failure to comply with §
§ 1712(a)(2) and 1721(b) of the
Children's Internet Protection Act, 20
U.S.C. § 9134(f) and 47
U.S.C. § 254(h)(6).
201 F.Supp.2d 401
END OF
DOCUMENT
82(5)
254(2)
48(4.1)
90(3)
90.1(4)
90.1(4)
90.1(4)
90.1(1)
90.1(4)
90(3)
90.1(4)
90.1(1)
90.1(9)
90(3)
90.4(1)
90.4(1)
2.5
90.4(1)
717
90(3)
90.1(1)
90(3)
90.4(1)
90.1(9)
90.4(3)
82(2)
90(3)
90.1(9)
90.4(3)
717
48(1)
206
90(3)
90.1(1)
64(8)
64(1)