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+*** START OF THE PROJECT GUTENBERG EBOOK 5180 ***
+
+
+
+
+                 IN THE UNITED STATES DISTRICT COURT
+
+               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
+
+
+AMERICAN LIBRARY ASSOCIATION,           :       CIVIL ACTION
+INC., et al.                            :
+                                        :
+v.                                      :
+                                        :
+UNITED STATES, et al.                   :       NO. 01-1303
+- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
+MULTNOMAH COUNTY PUBLIC                 :       CIVIL ACTION
+LIBRARY, et al.                         :
+                                        :
+v.                                      :
+                                        :
+UNITED STATES OF AMERICA, et al.        :       NO. 01-1322
+
+
+        Before: BECKER, Chief Circuit Judge,
+        FULLAM and BARTLE, District Judges.
+
+OPINION OF THE COURT
+
+May 31, 2002
+
+Becker, Chief Circuit Judge
+
+CONTENTS
+
+I.      Preliminary Statement
+II.     Findings of Fact
+A.      Statutory Framework
+1.      Nature and Operation of the E-rate and LSTA Programs
+2.      CIPA
+a.      CIPA's Amendments to the E-rate Program
+b.      CIPA's Amendments to the LSTA Program
+B.      Identity of the Plaintiffs
+1.      Library and Library Association Plaintiffs
+2.      Patron and Patron Association Plaintiffs
+3.      Web Publisher Plaintiffs
+C.      The Internet
+1.      Background
+2.      The Indexable Web, the "Deep Web"; Their Size and
+Rates of Growth and Change
+3.      The Amount of Sexually Explicit Material on the Web
+D.      American Public Libraries
+1.      The Mission of Public Libraries, and Their
+Reference and Collection Development Practices
+2.      The Internet in Public Libraries
+a.      Internet Use Policies in Public Libraries
+b.      Methods for Regulating Internet Use
+E.      Internet Filtering Technology
+1.      What Is Filtering Software, Who Makes It, and What Does It Do?
+2.      The Methods that Filtering Companies Use to
+Compile Category Lists
+a.      The "Harvesting" Phase
+b.      The "Winnowing" or Categorization Phase
+c.      The Process for "Re-Reviewing" Web Pages
+After Their Initial Categorization
+3.      The Inherent Tradeoff Between Overblocking and
+Underblocking
+4.      Attempts to Quantify Filtering Programs' Rates of
+Over- and Underblocking
+5.      Methods of Obtaining Examples of Erroneously
+Blocked Web Sites
+6.      Examples of Erroneously Blocked Web Sites
+7.      Conclusion: The Effectiveness of Filtering Programs
+III.    Analytic Framework for the Opinion: The Centrality of Dole
+and the Role of the Facial Challenge
+IV.     Level of Scrutiny Applicable to Content-based Restrictions
+on Internet Access in Public Libraries
+A.      Overview of Public Forum Doctrine
+B.      Contours of the Relevant Forum: the Library's
+Collection as a Whole or the Provision of Internet Access?
+C.      Content-based Restrictions in Designated Public Fora
+D.      Reasons for Applying Strict Scrutiny
+1.      Selective Exclusion From a "Vast Democratic Forum"
+2.      Analogy to Traditional Public Fora
+V.      Application of Strict Scrutiny
+A.      State Interests
+1.      Preventing the Dissemination of Obscenity, Child
+Pornography, and Material Harmful to Minors
+2.      Protecting the Unwilling Viewer
+3.      Preventing Unlawful or Inappropriate Conduct
+4.      Summary
+B.      Narrow Tailoring
+C.      Less Restrictive Alternatives
+D.      Do CIPA's Disabling Provisions Cure the Defect?
+VI.     Conclusion; Severability
+FOOTNOTES
+
+
+1.        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 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. Sec. 9101 et seq. ("LSTA"), and so-called "E-rate
+discounts" for Internet access and support under the
+Telecommunications Act, 47 U.S.C. Sec. 254.  LSTA 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. Sec. 9134(f)(1)(A) (LSTA); 47 U.S.C. Sec. 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 (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 (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 (1997).   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.
+
+
+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 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 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 (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 (1997), open to any member of the public to speak on
+subjects "as diverse as human thought," id. at 870 (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.
+
+
+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.
+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 Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(3)),
+CIPA Sec.1721(b) (codified at 47 U.S.C. Sec. 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. Sec. 9134(f) and 47 U.S.C. Sec.
+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
+1.        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. Sec. 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. Sec. 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 other
+parties."  47 U.S.C. Sec. 254(h)(1)(B).  Under FCC regulations,
+providers of "interstate telecommunications" (with certain
+exceptions, see 47 C.F.R. Sec. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 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 Sec. 1711 (amending Title 20 to add
+Sec. 3601); (2) LSTA grants to states for support of libraries, see
+CIPA Sec. 1712 (amending the Museum and Library Services Act, 20
+U.S.C. Sec. 9134); and (3) discounts under the E-rate program, see
+CIPA Sec. 1721(a) & (b) (both amending the Communications Act of
+1934, 47 U.S.C. Sec. 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.
+1.        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 Sec. 1721(b) (codified at 47 U.S.C. Sec.
+254(h)(6)(A)(i)), unless the library certifies 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 Sec.
+1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(B)).   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 Sec.
+1703(b)(1) (codified at 47 U.S.C. Sec. 254(h)(7)(I)).
+
+
+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 Sec.
+1721(b) (codified at 47 U.S.C. Sec. 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 Sec.1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(D)).
+2.        CIPA's Amendments to the LSTA Program
+Section 1712 of CIPA amends the Museum and Library Services
+Act (20 U.S.C. Sec. 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 Sec. 1712 (codified at 20 U.S.C.
+Sec. 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 Sec. 1712 (codified
+at 20 U.S.C. Sec. 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 Sec. 1712 (codified at 20 U.S.C. Sec. 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.
+2.        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 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.
+
+
+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.
+3.        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/.
+
+
+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.
+
+
+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" 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.
+4.       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 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.
+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.
+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.
+1.        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 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 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.
+2.        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 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.   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.
+
+
+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 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 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.
+5.        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.
+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 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 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.
+
+
+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.
+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 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).
+1.        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. Sec. 9134(f)(1)(A)(i); 47 U.S.C. Sec.
+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.  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.
+2.        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 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 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 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.
+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.
+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.
+3.        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 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-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.   The problem with this selection method is that it is
+neither random, nor does it necessarily approximate the universe
+of Web pages that library patrons visit.
+
+
+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, 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.
+ 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%.   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%.
+Finnell's methodology was materially flawed in that it
+understates the rate of overblocking for the following reasons.
+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 that were 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 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.
+
+
+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
+Policy and 2% of all pages with respect to Cyber Patrol's own
+category definitions.
+
+
+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.
+ 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.
+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, 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.   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.
+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 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.
+
+
+
+
+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.   Due to the inability of a member 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%.
+
+
+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, 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/rfb_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 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 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: (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.   In sum, filtering products are currently
+unable to 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.
+2.        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 (1987), supplies the proper threshold analytic
+framework.  The constitutional source of Congress's spending
+power is Article I, Sec. 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.  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.  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.  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.
+
+
+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.
+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.  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 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.
+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; see id. at 211 ("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.
+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
+(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 (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 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, 122 S. Ct. 1389, 1399 (2002); see also
+Broadrick v. Oklahoma, 413 U.S. 601, 612 (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 (1965); see also Brockett v. Spokane Arcades, Inc., 472
+U.S. 491, 503 (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. Freedom of Speech Coalition, 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. Sec. 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 (2001) (declaring unconstitutional on its
+face a federal 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 (1991), the Court
+rejected a First Amendment facial challenge to federal
+regulations prohibiting federally funded healthcare clinics from
+providing counseling concerning the use 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 (internal quotation marks, alterations, and citation
+omitted).  In contrast, NEA v. Finley, 524 U.S. 569 (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.
+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, 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.
+3.        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 (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 (1985).
+
+
+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 ("[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.
+1.        Overview of Public Forum Doctrine
+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 (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 (1976), jail grounds, see Adderley v. Florida, 385 U.S. 39
+(1966), or public airport terminals, see Int'l Soc'y for Krishna
+Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), than to
+restrictions on speech in state universities, see Rosenberger v.
+Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995), or
+streets, sidewalks and public parks, see Frisby v. Schultz, 487
+U.S. 474 (1988); Hague v. CIO, 307 U.S. 496 (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 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.  "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 (1983); see also Int'l Soc'y for Krishna Consciousness,
+505 U.S. at 678 ("[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
+("[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.  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.  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.  Examples of designated fora
+include university meeting facilities, see Widmar v. Vincent, 454
+U.S. 263 (1981), school board meetings, see City of Madison Joint
+School Dist. v. Wisc. Employment Relations Comm'n, 429 U.S. 167
+(1976), and municipal theaters, see Southeastern Promotions, Ltd.
+v. Conrad, 420 U.S. 546 (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.
+2.        Contours of the Relevant Forum: the Library's
+Collection as a Whole or the Provision of Internet
+Access?
+
+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 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 (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.  Similarly, in Perry Education Association v. Perry Local
+Educators' Association, 460 U.S. 37 (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 (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 (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 (identifying the Combined
+Federal Campaign charity drive as the relevant unit of analysis
+for application of public forum doctrine).
+3.        Content-based Restrictions in Designated Public Fora
+
+
+Unlike nonpublic fora such as airport terminals, see Int'l
+Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672
+(1992), military bases, see Greer v. Spock, 424 U.S. 828 (1976),
+jail grounds, see Adderley v. Florida, 385 U.S. 39 (1966), the
+federal workplace, see Cornelius v. NAACP Legal Def. & Educ.
+Fund, 473 U.S. 788, 805 (1985), and public transit vehicles, see
+Lehman v. City of Shaker Heights, 418 U.S. 298 (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 (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 (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 (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 (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
+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
+(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 (plurality opinion); see also
+Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 572-73
+(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?").
+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. Sec. 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 (1991); see also
+Velazquez, 531 U.S. at 541 ("[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 ("As
+this suit involves a 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 (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 (internal quotation marks and citation omitted).
+Similarly, as Justice Stevens explained in his concurring
+opinion in Widmar v. Vincent, 454 U.S. 263 (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 (Stevens, J., concurring in the judgment).
+
+
+
+
+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 (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 ("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 (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 (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 (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 (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 (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:
+In FCC v. League of Women Voters of Cal., 468 U.S. 364
+(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.
+
+
+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 ("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 . . . .").
+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 (2000);
+see also Denver, 518 U.S. at 782 (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 (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 (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 (1987),
+and Minneapolis Star & Tribune Co. v. Minnesota Commissioner of
+Revenue, 460 U.S. 575 (1983), which we explain in the margin.
+4.        Reasons for Applying Strict Scrutiny
+
+1.        Selective Exclusion From a "Vast Democratic
+Forum"
+
+
+
+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, but also 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
+(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 (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 Arkansas Educational Television
+Commission v. Forbes, 523 U.S. 666 (1998), the public broadcaster
+specifically reviewed and approved each speaker permitted to
+participate in the debate.  See id. at 673 ("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 ("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); see also Cornelius v. NAACP Legal Def. & Educ.
+Fund, 473 U.S. 788, 804 (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, 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 (1983).
+ "[M]ost Internet forums – including chat rooms, newsgroups, mail
+exploders, and the Web – are open to all comers."  Reno v. ACLU,
+521 U.S. 844, 880 (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 a public 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,  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.
+
+
+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[]," Reno, 521 U.S. at 868, open to any member of
+the public to speak on subjects "as diverse as human thought,"
+id. at 870, 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.
+
+
+
+
+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 (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 (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 (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
+(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
+(1998), the Supreme Court has applied heightened scrutiny where
+the 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 (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 (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 (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 (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 (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 (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 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 (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.
+
+
+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
+(1943) ("Door to door distribution of circulars is essential to
+the poorly financed causes of little people."); Laurence H.
+Tribe, American Constitutional Law  Sec. 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.").
+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 (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.  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.   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:
+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 .  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
+the Internet is enormous and far exceeds the volume of speech
+available to audiences in traditional public fora.  See id. at
+868 (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 (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, and "is thus comparable, from the
+reader's viewpoint, to . . . a vast library including millions of
+readily available and indexed publications," id. at 853.  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.
+
+
+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 ("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 (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 (1965) (invalidating
+a content-based prior restraint on the use of the mails); see
+also Blount v. Rizzi, 400 U.S. 410 (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.
+
+
+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.   Moreover, 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 (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 ("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.").
+
+
+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
+(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, which facilitates
+speech that is "as diverse as human thought," id. at 870,
+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.
+4.        Application of Strict Scrutiny
+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
+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
+(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.
+1.        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 Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(1)(A) & (B)), Sec.
+1721(b) (codified at 47 U.S.C. Sec. 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").
+
+
+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.
+ See Miller v. California, 413 U.S. 15, 18 (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 (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 (1957) ("We hold that obscenity is not within
+the area of constitutionally protected speech of press.").
+The First Amendment also permits the state to prohibit the
+distribution to minors of material that, while not obscene with
+respect to adults, is obscene with respect to minors.  See
+Ginsberg v. New York, 390 U.S. 629, 637 (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 (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 (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
+("The State . . . has an independent interest in the well-being
+of its youth.").
+
+
+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 (1990) (holding that a
+state "may constitutionally proscribe the possession and viewing
+of child pornography"); Ferber, 458 U.S. at 757, 763 (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 (2000) (internal quotation marks and citation omitted); see
+also Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (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.").
+For example, in Cohen v. California, 403 U.S. 15 (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.  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.  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 (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 (internal quotation marks and citation omitted);
+see also Miller, 413 U.S. at 18-19 ("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."  Erznoznik, 422 U.S. at 209
+(citations omitted).  Thus, in FCC v. Pacifica Foundation, 438
+U.S. 726 (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 (citation omitted); accord Frisby v. Schultz, 487 U.S.
+474, 485 (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 (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").
+
+
+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 ("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.
+
+
+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, 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 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 (1969) (per curiam).  "The mere tendency of
+speech to encourage unlawful acts is insufficient reason for
+banning it."  Ashcroft, 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 (1959) (quoting Whitney v. Cal., 274 U.S. 357,
+378 (1927) (Brandeis, J., concurring)); see also Bartnicki v.
+Vopper, 532 U.S. 514, 529 (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.
+2.        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 (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 (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 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
+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 ("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 (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 Sec. 1712 (codified at 20 U.S.C. Sec. 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.
+
+
+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, 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.
+
+
+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 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, 122 S.
+Ct. at 1404; see also Stanley, 394 U.S. at 567-58 (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 (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.   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.
+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 more such examples in our findings of fact, see
+supra, and find that such erroneously blocked sites number in at
+least the thousands.
+
+
+Although we have 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 ("[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 ("[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 (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 (1967) (internal quotation marks and
+citation omitted); see also Bantam Books, Inc. v. Sullivan, 372
+U.S. 58, 66 (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.
+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.
+3.        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 ("If a less restrictive alternative
+would serve the Government's purpose, the legislature must use
+that alternative."); Sable, 492 U.S. at 126 ("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.").
+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; see also Reno, 521 U.S. at 879
+("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 logs to law enforcement in response to a subpoena.
+
+
+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; cf. Denver Area Educ. Telecomm. Consortium, Inc.
+v. FCC, 518 U.S. 727, 759 (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 ("[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 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.   "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.
+In contrast to the "harmful to minors" statute upheld in
+Ginsberg v. New York, 390 U.S. 629 (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 (citation omitted); see also Ginsberg, 390
+U.S. at 639 ("It is cardinal with us that the custody, care, and
+nurture 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 (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.  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 (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 Sec.
+1721(b)(6)(C) (codified at 47 U.S.C. Sec. 254(h)(6)(C)), CIPA Sec. 1712
+(codified at 20 U.S.C. Sec. 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 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.
+4.        Do CIPA's Disabling Provisions Cure the Defect?
+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 Sec. 1712(a)(2)
+(codified at 20 U.S.C. Sec. 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 Sec. 1721(b) (codified at 47 U.S.C. Sec. 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
+provisions permit libraries to disable the software filters.
+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.
+
+
+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, 121 S. Ct. 2271, 2279 (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
+(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 Sec. 1712(a) (codified at
+20 U.S.C. Sec. 9134(f)(1)(A)(i)(I)-(III)); CIPA Sec. 1721(b) (codified
+at 47 U.S.C. Sec. 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
+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.
+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 (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.
+
+
+Similarly, in Denver Area Educational Telecommunications
+Consortium, Inc. v. FCC, 518 U.S. 727 (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.  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; 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 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.   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.
+ 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.").
+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 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.  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 (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 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.
+5.        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.  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.
+
+
+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.
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+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.
+"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 (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 may be dropped if what is left is
+fully operative as a law."  Buckley v. Valeo, 424 U.S. 1, 108
+(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.   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.
+
+
+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 (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 (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. Sec. 9134(f) and 47
+U.S.C. Sec. 254(h)(6), respectively, to be facially invalid under
+the First Amendment and permanently enjoining the defendants from
+enforcing those provisions.
+
+
+
+___________________________
+Edward R. Becker, Chief Circuit
+Judge
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+                 IN THE UNITED STATES DISTRICT COURT
+
+               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
+
+
+AMERICAN LIBRARY ASSOCIATION,           :       CIVIL ACTION
+INC., et al.                            :
+                                        :
+v.                                      :
+                                        :
+UNITED STATES, et al.                   :       NO. 01-1303
+- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
+MULTNOMAH COUNTY PUBLIC                 :       CIVIL ACTION
+LIBRARY, et al.                         :
+                                        :
+v.                                      :
+                                        :
+UNITED STATES OF AMERICA, et al.        :       NO. 01-1322
+
+        ORDER
+
+AND NOW, this        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 Sec.Sec. 1712(a)(2) and 1721(b)
+of the Children's Internet Protection Act, 20 U.S.C. Sec. 9134(f)
+and 47 U.S.C. Sec. 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 Sec.Sec. 1712(a)(2)
+and 1721(b) of the Children's Internet Protection Act, 20 U.S.C.
+Sec. 9134(f) and 47 U.S.C. Sec. 254(h)(6).
+BY THE COURT:
+
+
+
+        __________________________________
+        Ch. Cir. J.
+
+
+
+        __________________________________
+        J.
+
+
+
+        __________________________________
+        J.
+
+
+FOOTNOTES
+
+       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 (1975).  Finally, plaintiffs submit that CIPA is
+unconstitutionally vague.  See City of Chicago v. Morales, 527
+U.S. 41 (1999).
+       CIPA defines "[m]inor" as "any individual who has not
+attained the age of 17 years."  CIPA Sec. 1721(c) (codified at 47
+U.S.C. Sec. 254(h)(7)(D)).  CIPA further provides that "[o]bscene"
+has the meaning given in 18 U.S.C. Sec. 1460, and "child
+pornography" has the meaning given in 18 U.S.C. Sec. 2256.  CIPA Sec.
+1721(c) (codified at 47 U.S.C. Sec. 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 Sec. 1721(c) (codified at 47 U.S.C. Sec. 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 Sec. 1732 (codified at 47 U.S.C. Sec. 254(l)(2)).
+        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, Sec. 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.
+        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.
+        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."
+        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.
+        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.
+        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.
+        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."
+        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.
+        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.
+        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%.
+       According to Biek, the sample size that he used yielded a
+95% confidence interval of plus or minus 3.11%.
+        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.
+        The archiving process in some cases took up to 48 hours
+from when the page was blocked.
+        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.
+        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.
+        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."
+        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/.
+
+       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.
+       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 (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 (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 (1982) (plurality opinion) ("[T]he right to receive ideas
+follows ineluctably from the sender's First Amendment right to
+send them.").
+       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 cease to 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).
+       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, 460 U.S. at 228-29 (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 ("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 (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).
+         [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 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).
+        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.
+       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.  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).
+       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).
+       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 (1973).
+       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 (citation omitted).
+       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.
+       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
+. . . .").
+       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.
+       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."
+       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.
+       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, 2002 U.S. LEXIS 3421 (May
+13, 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 (1996) (quoting Perry v.
+Sindermann, 408 U.S. 593, 597 (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
+(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 ("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 (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 (1978); Moor v.
+County of Alameda, 411 U.S. 693, 717-18 (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 (1939); Williams v. Mayor
+& City Council of Baltimore, 289 U.S. 36, 40 (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, 380 N.E.2d 628,
+637-38 (Mass. 1978), appeal dismissed for want of a
+substantial federal question, 439 U.S. 1060 (1979), and
+another to hold that a municipality has no rights
+against the federal government or another state.
+Township of River Vale 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 (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 (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.  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.  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.
+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 (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 (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 (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;
+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 (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 (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.  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; 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 (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 (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 ("[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 ("[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 ("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 (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.  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 (1997), "[i]t is no
+exaggeration to conclude that the content on the Internet is as
+diverse as human thought."  Id. at 852 (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.
+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.
+
+       CIPA Sec. 1712(a)(2) contains a provision titled
+"Separability," which is codified in the Library Services and
+Technology Act, 20 U.S.C. Sec. 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 Sec. 1721(e).
+
+
+*** END OF THE PROJECT GUTENBERG EBOOK 5180 ***