SPRING 2008
Cyberlaw
Course No.: 9200 710 801
Course ID:  17261
Tu 6:30-9:30 p.m.
Room W-215
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
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dratler@neo.rr.com
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008   Jay Dratler, Jr.  
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United States v. American Library Association, Inc.

539 U.S. 194, *,123 S.Ct. 2297, 156 L.Ed. 2d 221 (2003)


Rehnquist, C. J., announced the judgment of the Court and delivered an opinion, in which O'Connor, Scalia, and Thomas, JJ., joined.  Kennedy, J., and Breyer, J., filed opinions concurring in the judgment.  Stevens, J., filed a dissenting opinion.  Souter, J., filed a dissenting opinion, in which Ginsburg, J., joined.

Rehnquist , J.: [*198]

To address the problems associated with the availability of Internet pornography in public libraries, Congress enacted [*199] the Children's Internet Protection Act (CIPA), 114 Stat. 2763A-335.  Under CIPA, a public library may not receive federal assistance to provide Internet access unless it installs software to block images that constitute obscenity or child pornography, and to prevent minors from obtaining access to material that is harmful to them.  The District Court held these provisions facially invalid on the ground that they induce public libraries to violate patrons' First Amendment rights.  We now reverse.

To help public libraries provide their patrons with Internet access, Congress offers two forms of federal assistance.  First, the E-rate program established by the Telecommunications Act of 1996 entitles qualifying libraries to buy Internet access at a discount.  110 Stat 71, 47 U.S.C. § 254(h)(1)(B).   In the year ending June 30, 2002, libraries received $58.5 million in such discounts.  Second, pursuant to the Library Services and Technology Act (LSTA), 110 Stat 3009-295, as amended, 20 U.S.C. § 9101 et seq., the Institute of Museum and Library Services makes grants to state library administrative agencies to "electronically link libraries with educational, social, or information services," "assist libraries in accessing information through electronic networks," and "pay costs for libraries to acquire or share computer systems and telecommunications technologies."  §§ 9141(a)(1)(B), (C), (E).  In fiscal year 2002, Congress appropriated more than $149 million in LSTA grants.  These programs have succeeded greatly in bringing Internet access to public libraries: By 2000, 95% of the Nation's libraries provided public Internet access. . . . [*200]

By connecting to the Internet, public libraries provide patrons with a vast amount of valuable information.  But there is also an enormous amount of pornography on the Internet, much of which is easily obtained.  The accessibility of this material has created serious problems for libraries, which have found that patrons of all ages, including minors, regularly search for online pornography. Some patrons also expose others to pornographic images by leaving them displayed on Internet terminals or printed at library printers.

Upon discovering these problems, Congress became concerned that the E-rate and LSTA programs were facilitating access to illegal and harmful pornography. S. Rep. No. 105-226, p 5 (1998).  Congress learned that adults "use library computers to access pornography that is then exposed to staff, passersby, and children," and that "minors access child and adult pornography in libraries."

But Congress also learned that filtering software that blocks access to pornographic Web sites could provide a reasonably effective way to prevent such uses of library resources. By 2000, before Congress enacted CIPA, almost 17% of public libraries used such software on at least some of their Internet terminals, and 7% had filters on all of them. . . . A library can [*201] set such software to block categories of material, such as "Pornography" or "Violence."   When a patron tries to view a site that falls within such a category, a screen appears indicating that the site is blocked. But a filter set to block pornography may sometimes block other sites that present neither obscene nor pornographic material, but that nevertheless trigger the filter. To minimize this problem, a library can set its software to prevent the blocking of material that falls into categories like "Education," "History," and "Medical."  A library may also add or delete specific sites from a blocking category, and anyone can ask companies that furnish filtering software to unblock particular sites[.]

Responding to this information, Congress enacted CIPA.  It provides that a library may not receive E-rate or LSTA assistance unless it has "a policy of Internet safety for minors that includes the operation of a technology protection measure . . . that protects against access" by all persons to "visual depictions" that constitute "obscenity" or "child pornography," and that protects against access by minors to "visual depictions" that are "harmful to minors."  20 U.S.C. §§ 9134(f)(1)(A)(i) and (B)(i); 47 U.S.C. §§ 254(h)(6)(B)(i) and (C)(i).  The statute defines a "technology protection measure" as "a specific technology that blocks or filters Internet access to material covered by" CIPA.  § 254(h)(7)(I).  CIPA also permits the library to "disable" the filter "to enable access for bona fide research or other lawful purposes."  20 U.S.C. § 9134(f)(3) [20 USCS § 9134(f)(3)]; 47 U.S.C. § 254(h)(6)(D).  Under the E-rate program, disabling is permitted "during use by an adult."  § 254(h)(6)(D).  Under the LSTA program, disabling is permitted during use by any person.  20 U.S.C. § 9134(f)(3).

Appellees are a group of libraries, library associations, library patrons, and Web site publishers, including the American Library Association (ALA) and the Multnomah County Public Library in Portland, Oregon (Multnomah).  They [*202] sued the United States and the Government agencies and officials responsible for administering the E-rate and LSTA programs in District Court, challenging the constitutionality of CIPA's filtering provisions.  A three-judge District Court convened pursuant to § 1741(a) of CIPA * * * [*203 * * * [and held the statute unconstitional.]  We noted probable jurisdiction . . . and now reverse.

Congress has wide latitude to attach conditions to the receipt of federal assistance in order to further its policy objectives. South Dakota v. Dole, 483 U.S. 203 (1987).  But Congress may not "induce" the recipient "to engage in activities that would themselves be unconstitutional." Id., at 210 . . . To determine whether libraries would violate the First Amendment by employing the filtering software that CIPA requires, we must first examine the role of libraries in our society.  

CIPA does not directly regulate private conduct; rather, Congress has exercised its Spending Power by specifying conditions on the receipt of federal funds.  Therefore, Dole provides the appropriate framework for assessing CIPA's constitutionality.

* * * [*204] * * * To fulfill their traditional missions, public libraries must have broad discretion to decide what material to provide to their patrons. Although they seek to provide a wide array of information, their goal has never been to provide "universal coverage." Instead, public libraries seek to provide materials "that would be of the greatest direct benefit or interest to the community."  To this end, libraries collect only those materials deemed to have "requisite and appropriate quality." . . .

We have held in two analogous contexts that the government has broad discretion to make content-based judgments in deciding what private speech to make available to the public.  In Arkansas Ed. Television Comm'n v. Forbes, 523 U.S. 666, 672-673 (1998), we held that public forum principles do not generally apply to a public television station's editorial judgments regarding the private speech it presents to its viewers.  "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." Recognizing a broad right of public access "would [also] risk implicating the courts in judgments that should be left to the exercise of journalistic discretion." [*205]  Similarly, in National Endowment for Arts v. Finley, 524 U.S. 569 (1998), we upheld an art funding program that required the National Endowment for the Arts (NEA) to use content-based criteria in making funding decisions.  We explained that "any content-based considerations that may be taken into account in the grant-making process are a consequence of the nature of arts funding." In particular, "the very assumption of the NEA is that grants will be awarded according to the ‘artistic worth of competing applicants,' and absolute neutrality is simply inconceivable." (some internal quotation marks omitted).  We expressly declined to apply forum analysis, reasoning that it would conflict with "NEA's mandate . . . to make esthetic judgments, and the inherently content-based ‘excellence' threshold for NEA support."

The principles underlying Forbes and Finley also apply to a public library's exercise of judgment in selecting the material it provides to its patrons.  Just as forum analysis and heightened judicial scrutiny are incompatible with the role of public television stations and the role of the NEA, they are also incompatible with the discretion that public libraries must have to fulfill their traditional missions.  Public library staffs necessarily consider content in making collection decisions and enjoy broad discretion in making them.  The public forum principles on which the District Court relied, are out of place in the context of this case.  Internet access in public libraries is neither a "traditional" nor a "designated" public forum.  See Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 802, 87 L. Ed. 2d 567, 105 S. Ct. 3439 (1985) (describing types of forums).  First, this resourcewhich did not exist until quite recently— has not "immemorially been held in trust for the use of the public and, time out of mind, . . . been used for purposes of assembly, communication of thoughts between citizens, and discussing public questions." International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (internal quotation [*206] marks omitted).  We have "rejected the view that traditional public forum status extends beyond its historic confines." Forbes, supra, at 678.  The doctrines surrounding traditional public forums may not be extended to situations where such history is lacking.

Nor does Internet access in a public library satisfy our definition of a "designated public forum." To create such a forum, the government must make an affirmative choice to open up its property for use as a public forum. * * *

* * * A public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of books to speak.  It provides Internet access, not to "encourage a diversity of views from private speakers," but for the same reasons it offers other library resources: to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality. . . . [*207] . . . .  As Congress recognized, "the Internet is simply another method for making information available in a school or library."  S. Rep. No. 106-141, p 7 (1999).  It is "no more than a technological extension of the book stack."(1)

* * * [*208] * * * A library's failure to make quality-based judgments about all the material it furnishes from the Web does not somehow taint the judgments it does make.  A library's need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worthwhile material; it is no less entitled to play that role when it collects material from the Internet than when it collects material from any other source.  Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion.  We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries' judgments to block online pornography any differently, when these judgments are made for just the same reason.

Moreover, because of the vast quantity of material on the Internet and the rapid pace at which it changes, libraries cannot possibly segregate, item by item, all the Internet material that is appropriate for inclusion from all that is not.  While a library could limit its Internet collection to just those sites it found worthwhile, it could do so only at the cost of excluding an enormous amount of valuable information that it lacks the capacity to review.  Given that tradeoff, it is entirely reasonable for public libraries to reject that approach and instead exclude certain categories of content, without making individualized judgments that everything they do make available has requisite and appropriate quality.

Like the District Court, the dissents fault the tendency of filtering software to "overblock"—that is, to erroneously block access to constitutionally protected speech that falls outside the categories that software users intend to block.  Due to the software's limitations, "many erroneously blocked [Web] pages contain content [*209] 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.'" Assuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled.  When a patron encounters a blocked site, he need only ask a librarian to unblock it or (at least in the case of adults) disable the filter.  As the District Court found, libraries have the capacity to permanently unblock any erroneously blocked, and the Solicitor General stated at oral argument that a "library may . . . eliminate the filtering with respect to specific sites . . . at the request of a patron."   With respect to adults, CIPA also expressly authorizes library officials to "disable" a filter altogether "to enable access for bona fide research or other lawful purposes." 20 U.S.C. § 9134(f)(3) (disabling permitted for both adults and minors); 47 U.S.C. § 254(h)(6)(D) (disabling permitted for adults).  The Solicitor General confirmed that a "librarian can, in response to a request from a patron, unblock the filtering mechanism altogether," and further explained that a patron would not "have to explain . . . why he was asking a site to be unblocked or the filtering to be disabled[.]" The District Court viewed unblocking and disabling as inadequate because some patrons may be too embarrassed to request them.  But the Constitution does not guarantee the right to acquire information at a public library without any risk of embarrassment.(2)  [*210]

Appellees urge us to affirm the District Court's judgment on the alternative ground that CIPA imposes an unconstitutional condition on the receipt of federal assistance.  Under this doctrine, 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. [(quotation marks and citations omitted)]  * * *

We need not decide this question because, even assuming that appellees may assert an "unconstitutional conditions" claim, this claim would fail on the merits.  Within broad limits, "when the Government appropriates public funds to establish a program it is entitled to define the limits of that program." Rust v. Sullivan, 500 U.S. 173 (1991).  In Rust, Congress had appropriated federal funding for family planning services and forbidden the use of such funds in programs that provided abortion counseling.  Recipients of these funds challenged this restriction, arguing that it impermissibly conditioned the receipt of a benefit on the relinquishment of their constitutional right to engage in abortion counseling.  We rejected that claim, recognizing that "the Government [was] not denying a benefit to anyone, but [was] instead simply insisting that public funds be spent for the purposes for which they were authorized."

The same is true here.  The E-rate and LSTA programs were intended to help public libraries fulfill their traditional role of obtaining material of requisite and appropriate quality for educational and informational purposes.  Congress [*212] may certainly insist that these "public funds be spent for the purposes for which they were authorized."  Especially because public libraries have traditionally excluded pornographic material from their other collections, Congress could reasonably impose a parallel limitation on its Internet assistance programs.  As the use of filtering software helps to carry out these programs, it is a permissible condition under Rust .

Justice Stevens asserts the premise that "[a] federal statute penalizing a library for failing to install filtering software on every one of its Internet-accessible computers would unquestionably violate [the First] Amendment."  But— assuming again that public libraries have First Amendment rights—CIPA does not "penalize" libraries that choose not to install such software, or deny them the right to provide their patrons with unfiltered Internet access.  Rather, CIPA simply reflects Congress' decision not to subsidize their doing so.  To the extent that libraries wish to offer unfiltered access, they are free to do so without federal assistance. * * *

* * * [*214]


Because public libraries' use of Internet filtering software does not violate their patrons' First Amendment rights, CIPA does not induce libraries to violate the Constitution, and is a valid exercise of Congress' spending power.  Nor does CIPA impose an unconstitutional condition on public libraries.  Therefore, the judgment of the District Court for the Eastern District of Pennsylvania is reversed.


Justice Kennedy, concurring in the judgment.

If, on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay, there is little to this case.  The Government represents this is indeed the fact.

The District Court, in its "Preliminary Statement," did say that "the unblocking may take days, and may be unavailable, especially in branch libraries, which are often less well staffed than main libraries."  That statement, however, does not appear to be a specific finding.  It was not the basis for the District Court's decision in any event, as the court assumed that "the disabling provisions permit public libraries to allow a patron access to any speech that is constitutionally protected with respect to that patron."  [*215]  If some libraries do not have the capacity to unblock specific Web sites or to disable the filter or if it is shown that an adult user's election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge, not the facial challenge made in this case.  

* * *


Justice Breyer, concurring in the judgment.

* * *
In determining whether the statute's conditions consequently violate the First Amendment, the plurality first finds the "public forum" doctrine inapplicable, and then holds that the statutory provisions are constitutional.  I agree with [*216] both determinations.  But I reach the plurality's ultimate conclusion in a different way.

In ascertaining whether the statutory provisions are constitutional, I would apply a form of heightened scrutiny, examining the statutory requirements in question with special care.  The Act directly restricts the public's receipt of information. . . .  And it does so through limitations imposed by outside bodies (here Congress) upon two critically important sources of information—the Internet as accessed via public libraries. . . . For that reason, we should not examine the statute's constitutionality as if it raised no special First Amendment concern—as if, like tax or economic regulation, the First Amendment demanded only a "rational basis" for imposing a restriction.  Nor should we accept the Government's suggestion that a presumption in favor of the statute's constitutionality applies.

At the same time, in my view, the First Amendment does not here demand application of the most limiting constitutional approach—that of "strict scrutiny."  The statutory restriction in question is, in essence, a kind of "selection" restriction (a kind of editing).  It affects the kinds and amount of materials that the library can present to its patrons.  [*217] And libraries often properly engage in the selection of materials, either as a matter of necessity (i.e., due to the scarcity of resources) or by design (i.e., in accordance with collection development policies).  To apply "strict scrutiny" to the "selection" of a library's collection (whether carried out by public libraries themselves or by other community bodies with a traditional legal right to engage in that function) would unreasonably interfere with the discretion necessary to create, maintain, or select a library's "collection" (broadly defined to include all the information the library makes available). . . .  That is to say, "strict scrutiny" implies too limiting and rigid a test for me to believe that the First Amendment requires it in this context.

Instead, I would examine the constitutionality of the Act's restrictions here as the Court has examined speech-related restrictions in other contexts where circumstances call for heightened, but not "strict," scrutiny—where, for example, complex, competing constitutional interests are potentially at issue or speech-related harm is potentially justified by unusually strong governmental interests.  Typically the key question in such instances is one of proper fit [between means and interests] . . . . [citations omitted]

In such cases the Court has asked whether the harm to speech-related interests is disproportionate in light of both the justifications and the potential alternatives.  It has considered the legitimacy of the statute's objective, the extent [*218] to which the statute will tend to achieve that objective, whether there are other, less restrictive ways of achieving that objective, and ultimately whether the statute works speech-related harm that, in relation to that objective, is out of proportion. * * * This approach does not substitute a form of "balancing" for less flexible, though more speech-protective, forms of "strict scrutiny."  Rather, it supplements the latter with an approach that is more flexible but nonetheless provides the legislature with less than ordinary leeway in light of the fact that constitutionally protected expression is at issue. . . .

The Act's restrictions satisfy these constitutional demands.  The Act seeks to restrict access to obscenity, child pornography, and, in respect to access by minors, material that is comparably harmful. These objectives are "legitimate," and indeed often "compelling."  See, e.g., Miller v. California, 413 U.S. 15, 18 (interest in prohibiting access to [*219] obscene material is "legitimate"); Reno, supra, at 869-870 (interest in "shielding" minors from exposure to indecent material is "‘compelling'") . . .  As the District Court found, software filters "provide a relatively cheap and effective" means of furthering these goals.  Due to present technological limitations, however, the software filters both "overblock," screening out some perfectly legitimate material, and "underblock," allowing some obscene material to escape detection by the filter. But no one has presented any clearly superior or better fitting alternatives.

At the same time, the Act contains an important exception that limits the speech-related harm that "overblocking" might cause.  As the plurality points out, the Act allows libraries to permit any adult patron access to an "overblocked" Web site; the adult patron need only ask a librarian to unblock the specific Web site or, alternatively, ask the librarian, "Please disable the entire filter."

The Act does impose upon the patron the burden of making this request.  But it is difficult to see how that burden (or any delay associated with compliance) could prove more onerous than traditional library practices associated with segregating library materials in, say, closed stacks, or with interlibrary lending practices that require patrons to make requests that are not anonymous and to wait while the librarian obtains the desired materials from elsewhere.  Perhaps local library rules or practices could further restrict the ability of patrons to obtain "overblocked" Internet material. . . .  But we are not now considering any such local practices.  We here consider only a facial challenge to the Act itself.

Given the comparatively small burden that the Act imposes upon the library patron seeking legitimate Internet materials, I cannot say that any speech-related harm that the Act may cause is disproportionate when considered in relation to the Act's legitimate objectives.  I therefore agree with the plurality that the statute does not violate the First Amendment, and I concur in the judgment.


Justice Stevens, dissenting.

* * *  I agree with the plurality that it is neither inappropriate nor unconstitutional for a local library to experiment with filtering software as a means of curtailing children's access to Internet Web sites displaying sexually explicit images.  I also agree with the plurality that the 7% of public libraries that decided to use such software on all of their Internet terminals in 2000 did not act unlawfully.  Whether it is constitutional for the Congress of the United States to impose that requirement on the other 93%, however, raises a vastly different question.  Rather than allowing local decisionmakers to tailor their responses to local problems, the Children's Internet Protection Act (CIPA) operates as a blunt nationwide restraint on adult access to "an enormous amount of valuable information" that individual librarians cannot possibly review. Most of that information is constitutionally protected speech.  In my view, this restraint is unconstitutional. [*221]

I

The unchallenged findings of fact made by the District Court reveal fundamental defects in the filtering software that is now available or that will be available in the foreseeable future.  Because the software relies on key words or phrases to block undesirable sites, it does not have the capacity to exclude a precisely defined category of images. * * * [*222]

Given the quantity and ever-changing character of Web sites offering free sexually explicit material,(3) [and filters' inability to block images] it is inevitable that a substantial amount of such material will never be blocked.  Because of this "underblocking," the statute will provide parents with a false sense of security without really solving the problem that motivated its enactment.  Conversely, the software's reliance on words to identify undesirable sites necessarily results in the blocking of thousands of pages that "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.'" [quoting district court]  In my judgment, a statutory blunderbuss that mandates this vast amount of "overblocking" abridges the freedom of speech protected by the First Amendment.

* * * Neither the interest in suppressing unlawful speech nor the interest in protecting children from access to harmful materials justifies this overly broad restriction on adult access to protected speech.  "The Government may not suppress lawful speech as the means to suppress unlawful speech." Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002).(4) [*223]

Although CIPA does not permit any experimentation, the District Court expressly found that a variety of alternatives less restrictive are available at the local level:
    "* * *  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."
Those findings are consistent with scholarly comment on the issue arguing that local decisions tailored to local circumstances are more appropriate than a mandate from Congress. [*224] The plurality does not reject any of those findings.  Instead, "assuming that such erroneous blocking presents constitutional difficulties," it relies on the Solicitor General's assurance that the statute permits individual librarians to disable filtering mechanisms whenever a patron so requests. In my judgment, that assurance does not cure the constitutional infirmity in the statute.  

Until a blocked site or group of sites is unblocked, a patron is unlikely to know what is being hidden and therefore whether there is any point in asking for the filter to be removed.  It is as though the statute required a significant part of every library's reading materials to be kept in unmarked, locked rooms or cabinets, which could be opened only in response to specific requests.  Some curious readers would in time obtain access to the hidden materials, but [*225] many would not.  Inevitably, the interest of the authors of those works in reaching the widest possible audience would be abridged.  Moreover, because the procedures that different libraries are likely to adopt to respond to unblocking requests will no doubt vary, it is impossible to measure the aggregate effect of the statute on patrons' access to blocked sites.  Unless we assume that the statute is a mere symbolic gesture, we must conclude that it will create a significant prior restraint on adult access to protected speech. * * *


II

The plurality incorrectly argues that the statute does not impose "an unconstitutional condition on public libraries."  On the contrary, it impermissibly conditions the receipt of Government funding on the restriction of significant First Amendment rights.  

* * *

A federal statute penalizing a library for failing to install filtering software on every one of its Internet-accessible computers would unquestionably violate that Amendment.  Cf. Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).   I think it equally clear that the First Amendment protects libraries from being denied funds for refusing to [*227] comply with an identical rule.  An abridgment of speech by means of a threatened denial of benefits can be just as pernicious as an abridgment by means of a threatened penalty.  

* * * [*231] * * *

This Court should not permit federal funds to be used to enforce this kind of broad restriction of First Amendment rights, particularly when such a restriction is unnecessary to accomplish Congress' stated goal.  The abridgment of speech is equally obnoxious whether a rule like this one is enforced by a threat of penalties or by a threat to withhold a benefit.  

I would affirm the judgment of the District Court.


Justice Souter, with whom Justice Ginsburg joins, dissenting.

* * *

I

Like the other Members of the Court, I have no doubt about the legitimacy of governmental efforts to put a barrier between child patrons of public libraries and the raw offerings [*232] on the Internet otherwise available to them there, and if the only First Amendment interests raised here were those of children, I would uphold application of the Act.  We have said that the governmental interest in "shielding" children from exposure to indecent material is "compelling," Reno v. American Civil Liberties Union, 521 U.S. 844, 869-870 (1997), and I do not think that the awkwardness a child might feel on asking for an unblocked terminal is any such burden as to affect constitutionality.

Nor would I dissent if I agreed with the majority of my colleagues that an adult library patron could, consistently with the Act, obtain an unblocked terminal simply for the asking. * * * But the Federal Communications Commission, in its order implementing the Act, pointedly declined to set a federal policy on when unblocking by local libraries would be appropriate under the statute. . . .  Moreover, the District Court expressly found that "unblocking may take days, and may be unavailable, especially [*233] in branch libraries, which are often less well staffed than main libraries."

In any event, we are here to review a statute, and the unblocking provisions simply cannot be construed, even for constitutional avoidance purposes, to say that a library must unblock upon adult request, no conditions imposed and no questions asked.  First, the statute says only that a library "may" unblock, not that it must.  20 U.S.C. § 9134(f)(3); see 47 U.S.C. § 254(h)(6)(D).  In addition, it allows unblocking only for a "bona fide research or other lawful purposes," 20 U.S.C. § 9134(f)(3); see 47 U.S.C. § 254(h)(6)(D), and if the "lawful purposes" criterion means anything that would not subsume and render the "bona fide research" criterion superfluous, it must impose some limit on eligibility for unblocking, see, e.g., Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253 (1992) ("Courts should disfavor interpretations of statutes that render language superfluous").  There is therefore necessarily some restriction, which is surely made more onerous by the uncertainty of its terms and the generosity of its discretion to library staffs in deciding who gets complete Internet access and who does not. . . .(5)

We therefore have to take the statute on the understanding that adults will be denied access to a substantial amount of nonobscene material harmful to children but lawful for [*234] adult examination, and a substantial quantity of text and pictures harmful to no one.  As the plurality concedes, this is the inevitable consequence of the indiscriminate behavior of current filtering mechanisms, which screen out material to an extent known only by the manufacturers of the blocking software, [citing district court:] ("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").  

We likewise have to examine the statute on the understanding that the restrictions on adult Internet access have no justification in the object of protecting children.  Children could be restricted to blocked terminals, leaving other unblocked terminals in areas restricted to adults and screened from casual glances.  And of course the statute could simply have provided for unblocking at adult request, with no questions asked.  The statute could, in other words, have protected children without blocking access for adults or subjecting adults to anything more than minimal inconvenience, just the way (the record shows) many librarians had been dealing with obscenity and indecency before imposition of the federal conditions.  Instead, the Government's funding conditions engage in overkill to a degree illustrated by their refusal to trust even a library's staff with an unblocked terminal, one to which the adult public itself has no access.

The question for me, then, is whether a local library could itself constitutionally impose these restrictions on the content otherwise available to an adult patron through an Internet connection, at a library terminal provided for public use.  The answer is no. * * * [*235] * * *  This would simply be censorship.  True, the censorship would not necessarily extend to every adult, for an intending Internet user might convince a librarian that he was a true researcher or had a "lawful purpose" to obtain everything the library's terminal could provide.  But as to those who did not qualify for discretionary unblocking, the censorship would be complete and, like all censorship by an agency of the Government, presumptively invalid owing to strict scrutiny in implementing the Free Speech Clause of the First Amendment. * * *


II

The Court's plurality does not treat blocking affecting adults as censorship, but chooses to describe a library's act in filtering content as simply an instance of the kind of selection from available material that every library (save, perhaps, the Library of Congress) must perform.   But this position does not hold up.(6) [*236]


A

Public libraries are indeed selective in what they acquire to place in their stacks, as they must be. * * *

. . . .  [H]owever, the Internet blocking here defies comparison to the process of acquisition.  Whereas traditional scarcity of money and space require a library to make choices about what to acquire, and the choice to be made is whether or not to spend the money to acquire something, blocking is the subject of a choice made after the money for Internet access has been spent or committed. [*237] Since it makes no difference to the cost of Internet access whether an adult calls up material harmful for children or the Articles of Confederation, blocking (on facts like these) is not necessitated by scarcity of either money or space.(7)  In the instance of the Internet, what the library acquires is electronic access, and the choice to block is a choice to limit access that has already been acquired. * * * The proper analogy therefore is not to passing up a book that might have been bought; it is either to buying a book and then keeping it from adults lacking an acceptable "purpose," or to buying an encyclopedia and then cutting out pages with anything thought to be unsuitable for all adults.


B

* * *  The plurality . . . argues, in effect, that the traditional responsibility of public libraries has called for denying adult access to certain books, or bowdlerizing the content of what the libraries let adults see.  But, in fact, the plurality's conception of a public library's mission has been rejected by the libraries themselves.  And no library that chose to block adult access in the way mandated by the Act could claim that the history of public library practice in this country furnished an implicit [*238] gloss on First Amendment standards, allowing for blocking out anything unsuitable for adults.

* * * [*241] * * *

    [Justice Souter outlines the history of early instances of censorship, followed by the ALA's more recent attempts to fight censorship, including the use of "closed stacks" based on content.]
There is not a word [in the ALA's postwar statements] about barring requesting adults from any materials in a library's collection, or about limiting an adult's access based on evaluation of his purposes in seeking materials.  If such a practice had survived into the latter half of the 20th century, one would surely find a statement about it from the ALA, which had become the nemesis of anything sounding like censorship of library holdings, as shown by the history just sampled.(8)  The silence bespeaks an American public library that gives any adult patron any material at hand, and a history without support for the plurality's reading of the First Amendment as tolerating a public library's censorship of its collection against adult enquiry.  


C

Thus, there is no preacquisition scarcity rationale to save library Internet blocking from treatment as censorship, and no support for it in the historical development of library practice.  To these two reasons to treat blocking differently from a decision declining to buy a book, a third must be added.  Quite simply, we can smell a rat when a library blocks material already in its control, just as we do when a library removes books from its shelves for reasons having nothing to do with wear and tear, obsolescence, or lack of demand.  Content-based blocking and removal tell us something that mere absence from the shelves does not.

* * * [*242] * * *

After a library has acquired material in the first place, . . . the variety of possible reasons that might legitimately support an initial rejection are no longer in play.  Removal of books or selective blocking by controversial subject matter is not a function of limited resources and less likely than a selection decision to reflect an assessment of esthetic or scholarly merit.  Removal (and blocking) decisions being so often obviously correlated with content, they tend to show up for just what they are, and because such decisions tend to be few, courts can examine them without facing a deluge.  The difference between choices to keep out and choices to throw out is thus enormous, a perception that underlay the good sense of the plurality's conclusion in Board of Ed., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853 (1982), that removing classics from a school library in response to pressure from parents and school board members violates the Speech Clause.  

III

There is no good reason, then, to treat blocking of adult enquiry as anything different from the censorship it presumptively is.  For this reason, I would hold in accordance with conventional strict scrutiny that a library's practice of blocking would violate an adult patron's First and Fourteenth Amendment right to be free of Internet censorship, when unjustified (as here) by any legitimate interest in screening children from harmful material.  On that ground, [*243] the Act's blocking requirement in its current breadth calls for unconstitutional action by a library recipient, and is itself unconstitutional.  



Footnotes


1.   [Court's footnote 3]  Even if appellees had proffered more persuasive evidence that public libraries intended to create a forum for speech by connecting to the Internet, we would hesitate to import "the public forum doctrine . . . wholesale into" the context of the Internet. Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996) (opinion of Breyer, J.).  "We are wary of the notion that a partial analogy in one context, for which we have developed doctrines, can compel a full range of decisions in such a new and changing area."

The dissents agree with the District Court that less restrictive alternatives to filtering software would suffice to meet Congress' goals.  But we require the Government to employ the least restrictive means only when the forum is a public one and strict scrutiny applies.  For the reasons stated above, such is not the case here.  In deciding not to collect pornographic material from the Internet, a public library need not satisfy a court that it has pursued the least restrictive means of implementing that decision.  

In any case, the suggested alternatives have their own drawbacks.  Close monitoring of computer users would be far more intrusive than the use of filtering software, and would risk transforming the role of a librarian from a professional to whom patrons turn for assistance into a compliance officer whom many patrons might wish to avoid.  Moving terminals to places where their displays cannot easily be seen by other patrons, or installing privacy screens or recessed monitors, would not address a library's interest in preventing patrons from deliberately using its computers to view online pornography.  To the contrary, these alternatives would make it easier for patrons to do so.
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2.   [Court's footnote 4]  The dissents argue that overblocking will "reduce the adult population . . . to reading only what is fit for children." [See] . . . Reno v. American Civil Liberties Union, 521 U.S. 844, 875 (1997).  But these cases are inapposite because they addressed Congress' direct regulation of private conduct, not exercises of its Spending Power.

The dissents also argue that because some library patrons would not make specific unblocking requests, the interest of authors of blocked Internet material "in reaching the widest possible audience would be abridged." But this mistakes a public library's purpose for acquiring Internet terminals: A library does so to provide its patrons with materials of requisite and appropriate quality, not to create a public forum for Web publishers to express themselves.

Justice Stevens further argues that, because some libraries' procedures will make it difficult for patrons to have blocked material unblocked, CIPA "will create a significant prior restraint on adult access to protected speech."  But this argument, which the District Court did not address, mistakenly extends prior restraint doctrine to the context of public libraries' collection decisions.  A library's decision to use filtering software is a collection decision, not a restraint on private speech.  Contrary to Justice Stevens' belief, a public library does not have an obligation to add material to its collection simply because the material is constitutionally protected.
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3.   [Justice Stevens' footnote 1] "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." [quoting district court]

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4.   [Justice Stevens' footnote 2]  We have repeatedly reaffirmed the holding in Butler v. Michigan, 352 U.S. 380, 383(1957), that the State may not "reduce the adult population . . . to reading only what is fit for children." . . .

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5.   [Justice Souter's footnote 1]  If the Solicitor General's representation turns out to be honored in the breach by local libraries, it goes without saying that our decision today would not foreclose an as-applied challenge.

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6.   [Justice Souter's footnote 2]  Among other things, the plurality's reasoning ignores the widespread utilization of interlibrary loan systems.  With interlibrary loan, virtually any book, say, is effectively made available to a library's patrons.  If, therefore, a librarian refused to get a book from interlibrary loan for an adult patron on the ground that the patron's "purpose" in seeking the book was not acceptable, the librarian could find no justification in the fact that libraries have traditionally "collected only those materials deemed to have ‘requisite and appropriate quality.'" [quoting plurality opinion]  In any event, in the ensuing analysis, I assume for the sake of argument that we are in a world without interlibrary loan.  

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7.   [Justice Souter's footnote 3]  Of course, a library that allowed its patrons to use computers for any purposes might feel the need to purchase more computers to satisfy what would presumably be greater demand, but the answer to that problem would be to limit the number of unblocked terminals or the hours in which they could be used.  In any event, the rationale for blocking has no reference whatever to scarcity.  

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8.   [Justice Souter's footnote 7]  Thus, it is not surprising that, with the emergence of the circumstances giving rise to this case, the ALA has adopted statements opposing restrictions on access to adult patrons, specific to electronic media like the Internet.

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