diff options
Diffstat (limited to '5180-0.txt')
| -rw-r--r-- | 5180-0.txt | 6273 |
1 files changed, 6273 insertions, 0 deletions
diff --git a/5180-0.txt b/5180-0.txt new file mode 100644 index 0000000..e414ef3 --- /dev/null +++ b/5180-0.txt @@ -0,0 +1,6273 @@ +*** 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 filtersthose of today and for the foreseeable +futuresuffer (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 residentsis, indeed, a megaphone +amplifying voices that might not otherwise be audiblea +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 *** |