FALL 2010
Course No.: 9200-710 (& 810)-001
Course ID:  85723 & 85725
Time: M, W 4:45-6:15 p.m.
Room TBD
Professor Jay Dratler, Jr.
Across from Room 231D (IP Alcove)
Home: 330-835-4537
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008, 2010  Jay Dratler, Jr.  
For permission, see CMI.

Notes and Questions on U.S. v. American Library Association, Inc.

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 libraries.

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 something else?

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 support—a 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 statute valid?

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 effect—in addition to protecting children—likely 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?

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