Notes and Questions on U.S. v. American Library Association, Inc.
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1. The relevant portion of the First Amendment reads, "Congress shall
make no law . . . abridging the freedom of speech, or of the press
. . . ." U.S. Const., Am. I. On their face, these words protect
speakers and the press (or, more broadly, the media). Is a library
a speaker or a medium of communication? Is it a part of the press
or media establishment, or is it an intermediary, like a bookseller? Does
it matter that most public libraries, unlike most booksellers (which
are privately owned) are run by government? Does it matter that, in
the words of Red Lion, "It is the right of the viewers and listeners,
not the right of
the [media], which is paramount"? Does it matter that some people—particular
those with low incomes—may not have computers and may have to rely on public
libraries to access the Internet? If everyone had his or her own personal
computer with Internet access, would the statute have any real restrictive
effect in practice?
2. Does Justice Breyer rely on the ambiguous status of libraries as
"speakers" or "the Press" when he implies that the statute does not restrict
the content of speech directly but is only a "‘selection' restriction (a
kind of editing)" that "affects the kinds and amount of materials that the
library can present to its patrons"? In refusing to apply strict scrutiny,
is he, in effect, analogizing the statutory restrictions to regulation of
the time, place and manner of speech, which First-Amendment doctrine generally
treats more leniently than regulation based upon content?
All the Justices but Breyer state or appear to assume that the statutory
restrictions are content-based. Who is right? Certainly the
statute will, in practice, restrict access to screened material only to
those audiences that have to use public libraries for Internet access, such
as the poor people mentioned in Point 1 above. But does that mean
that, as to those audiences, the statutory regulation is not content-based?
Does Justice Breyer conflate the line of demarcation between content
regulation and time-place-manner regulation with the question of the regulation's
universal effect or lack thereof?
3. Both the plurality and the dissenters appear to assume that the
statute would meet no constitutional objection if libraries could constitutionally
impose the same Internet-blocking restrictions on their own initiative.
An unspoken assumption behind this assumption is that many, if not
most, public libraries are owned or operated by state or local government,
and therefore their self-imposed restrictions would constitute"state action"
sufficient to invoke the First Amendment against the States and their municipalities
through the Fourteenth. (Private libraries can engage in whatever
censorship they see fit without constitutional objection.) Therefore
much of the argument addresses the question whether mandates for screening
software imposed by public libraries on themselves would violate the first-amendment
rights of library patrons.
4. As do most recent obscenity cases, this one focuses on whether
the challenged regulation impermissibly limits adult audiences' access to
material that is inappropriate for children but is constitutionally protected
for adults. In this case, however, there is yet another restrictive
factor: the tendency of screening software to block wholly "innocent" sites,
i.e. Websites whose content is appropriate for both adults and children
and therefore cannot be constitutionally restricted at all. Doesn't
this "overblocking" effect of screening software, which appears to be unavoidable,
add a whole new dimension to this case? Do the various opinions give
it proper emphasis?
5. Consider the practical effect of this statute. For people
who have their own computers, either at home or (assuming their employers
allow them to spend "personal" time browsing) at work, isn't this whole
case a tempest in a teapot? Can't those people have access to blocked
sites on their own computers any time they want? Aren't the "unwired,"
mostly poor people who have to rely on their local public libraries for
Internet access, really the crux of this case? If so, doesn't the
case boil down to the effect that a self-imposed library requirement for
blocking would have on those people? If that is so, isn't the library
patron's ability to have blocking turned off, either in general or for a
particular site, absolutely critical to first-amendment analysis?
The plurality accepts the Solicitor General's word that there is no real
impediment to unblocking on request. It does so, although the Solicitor
General is an advocate seeking to uphold the statute, in reliance upon the
Solicitor General's integrity and ethical and moral obligation not to misrepresent
facts. Justice Kennedy's concurrence seems to take the same approach.
In contrast, Justice Souter evaluates the evidence for himself. First,
he relies on the fact that the statute permits, but does not require,
libraries to offer unblocking on request (where appropriate). Then
he notes that the FCC refused to adopt a general policy to govern unblocking
requests. Finally, he, like other Justices, quotes the district court's
finding that unblocking "may" be delayed or unavailable, especially in understaffed
Is any of the evidence or reasoning on either side factually decisive? Should
the Court have sent the case back down to the district court to determine
whether unblocking on request is practically and widely available? Or
are the plurality and Justice Souter (in his footnote 1) right in implying
one can contest the practicability of unblocking only in connection with
a challenge to the statute as applied, not (as in this case) a general challenge
on the statute's face? Does requiring those whose access to protected
speech the statute adversely affects to bring an "as applied" challenge
improperly "chill" their freedom of speech as audience?
6. Screening software has two "overblocking" effects. Even if
it works as intended, it limits adults to what is appropriate for children,
as computers can't tell the age of their users. In practice, it often
fails to work as intended and blocks access to sites that are constitutionally
protected for both adults and children. Does the possibility of unblocking
on request solve both problems in practice?
Consider all the stars that must line up for a library patron to succeed
in having the library turn off blocking of a constitutionally protected
site. First, the patron must have sufficient interest and tenacity
to get up from his or her chair, find a library staffer (possibly after
standing in line to do so), and wait for the staffer to modify the software
settings. Second, the patron must do so without, as Justice Stevens
points out, knowing the blocked site's contents, and therefore without knowing
whether this effort is worthwhile. Third, the library has to have
sufficient staff to handle the patron's request in a reasonable time. Fourth,
the library staff must be well enough trained in unblocking to respond to
requests in a time period that will not lose patrons' interest. Fifth,
each library staffer must be trained and motivated to respond to such requests
and to ignore any feelings, personal moral scruples, or unspoken library
policies that unblocking is too much trouble (for example, because the staffer
will have to turn the blocking on again after the requesting patron has
departed) or inconsistent with the moral "culture" of the particularly library
(for example, one in a small rural town). Finally, unless the patron
is smart enough (and cognizant of the right) to unblock the computer generally,
the staffer may unblock just a single site, requiring the patron to go through
the same process again for each improperly blocked site.
Doesn't this elaborate process completely obliterate the convenience and
flexibility that are the essence of Web surfing? Moreover, because
others have alternative means of accessing the Web, doesn't it do so for
the most vulnerable members of our society, namely, those who have to rely
on public libraries for Web access? Is unblocking on request a practical
solution to the twin problems of overblocking or an "ivory tower" solution
with little real-world practical effect? As you answer these questions,
consider that typical screening software might erroneously block perfectly
harmless Websites containing, for example, images of classical graphic or
sculptural art, serious discussions of sexual morality or sexually transmitted
diseases, or classical literature that incidentally contains sexual language.
7. With so much inconvenience and inefficiency at stake, the level
of scrutiny to be applied is critical, isn't it? Federal statutes
nearly always pass muster under the "rational basis" test, but
"strict scrutiny" is a much toughter standard.
Which test did the plurality apply? Among other things, the plurality
refused to apply the "public-forum" doctrine to libraries' Internet access.
See 123 S.Ct. at 2305. "Internet access in public libraries,"
the plurality wrote "is neither a ‘traditional' nor a ‘designated' public
forum." 123 S.Ct. at 2304 (citations omitted; emphasis added.) It
noted that public libraries traditionally (and without First-Amendment objection)
have exercised discretion in their choice of collections. Excluding
pornographic material from Internet access, it reasoned, is no different
in principle from this traditional selectivity. Relying on earlier decisions
upholding public broadcasters' editorial discretion and allowing the National
Endowment for the Arts to make content-based decisions on what art to fund,
the plurality concluded:
"Just as [public] 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."
Is this analysis strict scrutiny, a "rational basis" test, or
With Justice Breyer concurring, see 123 S.Ct. at 2310, a majority of the
Court therefore rejected the notion that public libraries constituted a
"public forum" in which conditions on government funding affecting the content
of speech are prohibited. The plurality left open, however, whether
the Internet generally might be considered a public forum.
8. In contrast to the plurality and Justice Breyer, Justice Stevens
would apply strict scrutiny and the "least restrictive alternative" test
as the appropriate modes of analysis in this case. Doesn't the plurality's
choice of First-Amendment analysis in practice determine the result?
Quoting the district court, Justice Stevens cites several alternatives less
restrictive than the statute , including: (1) enforcing policies against
using library computers to access inappropriate material (whether for children
or adults) by penalties "ranging from a warning to notification of law enforcement[,]"
(2) "requiring parental consent to or presence during unfiltered access,
" (3) "restricting minors' unfiltered access to terminals within view of
library staff," and (4) (for avoiding children's inadvertent exposure) "optional
filtering, privacy screens, recessed monitors, and placement of unfiltered
Internet terminals outside of sight-lines[.]" How many, if any, of
these options are truly less restrictive than the mandatory screening that
the statute requires? How many, if any, are likely to be practically
effective? Is Justice Stevens right in concluding that the statute
fails the least-restrictive-alternative test?
Is the federal requirement for screening software more like a library's
normal collection process, as the plurality assumes, or more like censorship,
as the dissenters argue? Is the screening content-based? Should
the screening requirement be subject to a rational-basis test, as the plurality
concludes, to some sort of intermediate scrutiny, as Justice Breyer concludes,
or to strict scrutiny, as the dissenters argue?
9. Even if the screening would be unconstitutional if self-imposed
by public libraries, the plurality still has an "ace in the whole" in upholding
the statute. The statute, it reasons, does not impose a direct prohibition
on access to protected material but merely a condition on receiving federal
financial supporta distinction that had influenced First-Amendment
analysis in other contexts. See 123 S.Ct. at 2303, 2307-2308 &
n.4. As the plurality noted, "To the extent that libraries wish
to offer unfiltered access, they are free to do so without federal assistance."
123 S.Ct. at 2308.
There is a whole "mini-jurisprudence" under the First Amendment addressing
whether conditions on government funding impose a sufficient "burden" on
protected speech to suffer constitutional invalidation. That area
of First Amendment law is beyond the scope of this course. Yet if
the funding condition does not impose such a burden, then isn't the
There is another possible approach to this question. Think of yourself
as the manager of a public library. Your state or locality, like most
in these uncertain times, is facing record budget deficits and, at the same
time, the need to allocate money to prepare for terrorist attacks. Therefore,
you don't have enough money to acquire all the books and periodicals you
want in paper form, let alone on the Internet. You have the chance
to use federal money to buy computers to access the Internet, on the condition
that you buy and install screening software, too. Your alternative
is to replace the federal subsidy with part of your own limited resources,
cutting the budget for things other than computers and Internet access accordingly.
What will you do?
If this scenario is realistic, is the statute's condition on funding tantamount
to a federal mandate in practical effect? If so, should courts consider
this practical effect in assessing the statute's constitutional validity,
or should they look only at the statute's conditional form? Is the
statute's practical effectin addition to protecting childrenlikely
to be restricted Internet access, even to constitutionally protected sites,
for the most needy members of our society? If so, how should that
effect influence First-Amendment analysis?