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Title: Children's Internet Protection Act (CIPA) Ruling
Author: United States District Court For The Eastern District Of Pennsylvania
Language: English
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                 IN THE UNITED STATES DISTRICT COURT

               FOR THE EASTERN DISTRICT OF PENNSYLVANIA


AMERICAN LIBRARY ASSOCIATION,           :       CIVIL ACTION
INC., et al.                            :
                                        :
v.                                      :
                                        :
UNITED STATES, et al.                   :       NO. 01-1303
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
MULTNOMAH COUNTY PUBLIC                 :       CIVIL ACTION
LIBRARY, et al.                         :
                                        :
v.                                      :
                                        :
UNITED STATES OF AMERICA, et al.        :       NO. 01-1322


        Before: BECKER, Chief Circuit Judge,
        FULLAM and BARTLE, District Judges.

OPINION OF THE COURT

May 31, 2002

Becker, Chief Circuit Judge

CONTENTS

I.      Preliminary Statement
II.     Findings of Fact
A.      Statutory Framework
1.      Nature and Operation of the E-rate and LSTA Programs
2.      CIPA
a.      CIPA's Amendments to the E-rate Program
b.      CIPA's Amendments to the LSTA Program
B.      Identity of the Plaintiffs
1.      Library and Library Association Plaintiffs
2.      Patron and Patron Association Plaintiffs
3.      Web Publisher Plaintiffs
C.      The Internet
1.      Background
2.      The Indexable Web, the "Deep Web"; Their Size and
Rates of Growth and Change
3.      The Amount of Sexually Explicit Material on the Web
D.      American Public Libraries
1.      The Mission of Public Libraries, and Their
Reference and Collection Development Practices
2.      The Internet in Public Libraries
a.      Internet Use Policies in Public Libraries
b.      Methods for Regulating Internet Use
E.      Internet Filtering Technology
1.      What Is Filtering Software, Who Makes It, and What Does It Do?
2.      The Methods that Filtering Companies Use to
Compile Category Lists
a.      The "Harvesting" Phase
b.      The "Winnowing" or Categorization Phase
c.      The Process for "Re-Reviewing" Web Pages
After Their Initial Categorization
3.      The Inherent Tradeoff Between Overblocking and
Underblocking
4.      Attempts to Quantify Filtering Programs' Rates of
Over- and Underblocking
5.      Methods of Obtaining Examples of Erroneously
Blocked Web Sites
6.      Examples of Erroneously Blocked Web Sites
7.      Conclusion: The Effectiveness of Filtering Programs
III.    Analytic Framework for the Opinion: The Centrality of Dole
and the Role of the Facial Challenge
IV.     Level of Scrutiny Applicable to Content-based Restrictions
on Internet Access in Public Libraries
A.      Overview of Public Forum Doctrine
B.      Contours of the Relevant Forum: the Library's
Collection as a Whole or the Provision of Internet Access?
C.      Content-based Restrictions in Designated Public Fora
D.      Reasons for Applying Strict Scrutiny
1.      Selective Exclusion From a "Vast Democratic Forum"
2.      Analogy to Traditional Public Fora
V.      Application of Strict Scrutiny
A.      State Interests
1.      Preventing the Dissemination of Obscenity, Child
Pornography, and Material Harmful to Minors
2.      Protecting the Unwilling Viewer
3.      Preventing Unlawful or Inappropriate Conduct
4.      Summary
B.      Narrow Tailoring
C.      Less Restrictive Alternatives
D.      Do CIPA's Disabling Provisions Cure the Defect?
VI.     Conclusion; Severability
FOOTNOTES


1.        Preliminary Statement

This case challenges an act of Congress that makes the use
of filtering software by public libraries a condition of the
receipt of federal funding.  The Internet, as is well known, is a
vast, interactive medium based on a decentralized network of
computers around the world.  Its most familiar feature is the
World Wide Web (the "Web"), a network of computers known as
servers that provide content to users.  The Internet provides
easy access to anyone who wishes to provide or distribute
information to a worldwide audience; it is used by more than 143
million Americans.  Indeed, much of the world's knowledge
accumulated over centuries is available to Internet users almost
instantly.  Approximately 10% of the Americans who use the
Internet access it at public libraries.  And approximately 95% of
all public libraries in the United States provide public access
to the Internet.


While the beneficial effect of the Internet in expanding the
amount of information  available to its users is self-evident,
its low entry barriers have also led to a perverse result –
facilitation of the widespread dissemination of hardcore
pornography within the easy reach not only of adults who have
every right to access it (so long as it is not legally obscene or
child pornography), but also of children and adolescents to whom
it may be quite harmful.  The volume of pornography on the
Internet is huge, and the record before us demonstrates that
public library patrons of all ages, many from ages 11 to 15, have
regularly sought to access it in public library settings.  There
are more than 100,000 pornographic Web sites that can be accessed
for free and without providing any registration information, and
tens of thousands of Web sites contain child pornography.
Libraries have reacted to this situation by utilizing a
number of means designed to insure that patrons avoid illegal
(and unwanted) content while also enabling patrons to find the
content they desire.  Some libraries have trained patrons in how
to use the Internet while avoiding illegal content, or have
directed their patrons to "preferred" Web sites that librarians
have reviewed.  Other libraries have utilized such devices as
recessing the computer monitors, installing privacy screens, and
monitoring implemented by a "tap on the shoulder" of patrons
perceived to be offending library policy.  Still others, viewing
the foregoing approaches as inadequate or uncomfortable (some
librarians do not wish to confront patrons), have purchased
commercially available software that blocks certain categories of
material deemed by the library board as unsuitable for use in
their facilities.  Indeed, 7% of American public libraries use
blocking software for adults.  Although such programs are
somewhat effective in blocking large quantities of pornography,
they are blunt instruments that not only "underblock," i.e., fail
to block access to substantial amounts of content that the
library boards wish to exclude, but also, central to this
litigation, "overblock," i.e., block access to large quantities
of material that library boards do not wish to exclude and that
is constitutionally protected.


Most of the libraries that use filtering software seek to
block sexually explicit speech.  While most libraries include in
their physical collection copies of volumes such as The Joy of
Sex and The Joy of Gay Sex, which contain quite explicit
photographs and descriptions, filtering software blocks large
quantities of other, comparable information about health and
sexuality that adults and teenagers seek on the Web.  One
teenager testified that the Internet access in a public library
was the only venue in which she could obtain information
important to her about her own sexuality.  Another library patron
witness described using the Internet to research breast cancer
and reconstructive surgery for his mother who had breast surgery.
 Even though some filtering programs contain exceptions for
health and education, the exceptions do not solve the problem of
 overblocking constitutionally protected material.  Moreover, as
we explain below, the filtering software on which the parties
presented evidence in this case overblocks not only information
relating to health and sexuality that might be mistaken for
pornography or erotica, but also vast numbers of Web pages and
sites that could not even arguably be construed as harmful or
inappropriate for adults or minors.


The Congress, sharing the concerns of many library boards,
enacted the Children's Internet Protection Act ("CIPA"), Pub. L.
No. 106-554, which makes the use of filters by a public library a
condition of its receipt of two kinds of subsidies that are
important (or even critical) to the budgets of many public
libraries – grants under the Library Services and Technology Act,
20 U.S.C. Sec. 9101 et seq. ("LSTA"), and so-called "E-rate
discounts" for Internet access and support under the
Telecommunications Act, 47 U.S.C. Sec. 254.  LSTA grant funds are
awarded, inter alia, in order to: (1) assist libraries in
accessing information through electronic networks, and (2)
provide targeted library and information services to persons
having difficulty using a library and to underserved and rural
communities, including children from families with incomes below
the poverty line.  E-rate discounts serve the similar purpose of
extending Internet access to schools and libraries in low-income
communities.  CIPA requires that libraries, in order to receive
LSTA funds or E-rate discounts, certify that they are using a
"technology protection measure" that prevents patrons from
accessing "visual depictions" that are "obscene," "child
pornography," or in the case of minors, "harmful to minors."  20
U.S.C. Sec. 9134(f)(1)(A) (LSTA); 47 U.S.C. Sec. 254(h)(6)(B) & (C) (E-
rate).


The plaintiffs, a group of libraries, library associations,
library patrons, and Web site publishers, brought this suit
against the United States and others alleging that CIPA is
facially unconstitutional because: (1) it induces public
libraries to violate their patrons' First Amendment rights
contrary to the requirements of South Dakota v. Dole, 483 U.S.
203 (1987); and (2) it requires libraries to relinquish their
First Amendment rights as a condition on the receipt of federal
funds and is therefore impermissible under the doctrine of
unconstitutional conditions.  In arguing that CIPA will induce
public libraries to violate the First Amendment, the plaintiffs
contend that given the limits of the filtering technology, CIPA's
conditions effectively require libraries to impose content-based
restrictions on their patrons' access to constitutionally
protected speech.  According to the plaintiffs, these content-
based restrictions are subject to strict scrutiny under public
forum doctrine, see Rosenberger v. Rector & Visitors of Univ. of
Va., 515 U.S. 819, 837 (1995), and are therefore permissible only
if they are narrowly tailored to further a compelling state
interest and no less restrictive alternatives would further that
interest, see Reno v. ACLU, 521 U.S. 844, 874 (1997).   The
government responds that CIPA will not induce public libraries to
violate the First Amendment, since it is possible for at least
some public libraries to constitutionally comply with CIPA's
conditions.  Even if some libraries' use of filters might violate
the First Amendment, the government submits that CIPA can be
facially invalidated only if it is impossible for any public
library to comply with its conditions without violating the First
Amendment.


Pursuant to CIPA, a three-judge Court was convened to try
the issues.  Pub. L. No. 106-554.  Following an intensive period
of discovery on an expedited schedule to allow public libraries
to know whether they need to certify compliance with CIPA by July
1, 2002, to receive subsidies for the upcoming year, the Court
conducted an eight-day trial at which we heard 20 witnesses, and
received numerous depositions, stipulations and documents.  The
principal focus of the trial was on the capacity of currently
available filtering software.  The plaintiffs adduced substantial
evidence not only that filtering programs bar access to a
substantial amount of speech on the Internet that is clearly
constitutionally protected for adults and minors, but also that
these programs are intrinsically unable to block only illegal
Internet content while simultaneously allowing access to all
protected speech.
As our extensive findings of fact reflect, the plaintiffs
demonstrated that thousands of Web pages containing protected
speech are wrongly blocked by the four leading filtering
programs, and these pages represent only a fraction of Web pages
wrongly blocked by the programs.  The plaintiffs' evidence
explained that the problems faced by the manufacturers and
vendors of filtering software are legion.  The Web is extremely
dynamic, with an estimated 1.5 million new pages added every day
and the contents of existing Web pages changing very rapidly.
The category lists maintained by the blocking programs are
considered to be proprietary information, and hence are
unavailable to customers or the general public for review, so
that public libraries that select categories when implementing
filtering software do not really know what they are blocking.


There are many reasons why filtering software suffers from
extensive over- and underblocking, which we will explain below in
great detail.  They center on the limitations on filtering
companies' ability to: (1) accurately collect Web pages that
potentially fall into a blocked category (e.g., pornography); (2)
review and categorize Web pages that they have collected; and (3)
engage in regular re-review of Web pages that they have
previously reviewed.  These failures spring from constraints on
the technology of automated classification systems, and the
limitations inherent in human review, including error,
misjudgment, and scarce resources, which we describe in detail
infra at 58-74.  One failure of critical importance is that the
automated systems that filtering companies use to collect Web
pages for classification are able to search only text, not
images.  This is crippling to filtering companies' ability to
collect pages containing "visual depictions" that are obscene,
child pornography, or harmful to minors, as CIPA requires.  As
will appear, we find that it is currently impossible, given the
Internet's size, rate of growth, rate of change, and
architecture, and given the state of the art of automated
classification systems, to develop a filter that neither
underblocks nor overblocks a substantial amount of speech.


The government, while acknowledging that the filtering
software is imperfect, maintains that it is nonetheless quite
effective, and that it successfully blocks the vast majority of
the Web pages that meet filtering companies' category definitions
(e.g., pornography).  The government contends that no more is
required.  In its view, so long as the filtering software
selected by the libraries screens out the bulk of the Web pages
proscribed by CIPA, the libraries have made a reasonable choice
which suffices, under the applicable legal principles, to pass
constitutional muster in the context of a facial challenge.
Central to the government's position is the analogy it advances
between Internet filtering and the initial decision of a library
to determine which materials to purchase for its print
collection.  Public libraries have finite budgets and must make
choices as to whether to purchase, for example, books on
gardening or books on golf.  Such content-based decisions, even
the plaintiffs concede, are subject to rational basis review and
not a stricter form of First Amendment scrutiny.  In the
government's view, the fact that the Internet reverses the
acquisition process and requires the libraries to, in effect,
purchase the entire Internet, some of which (e.g., hardcore
pornography) it does not want, should not mean that it is
chargeable with censorship when it filters out offending
material.
The legal context in which this extensive factual record is
set is complex, implicating a number of constitutional doctrines,
including the constitutional limitations on Congress's spending
clause power, the unconstitutional conditions doctrine, and
subsidiary to these issues, the First Amendment doctrines of
prior restraint, vagueness, and overbreadth.  There are a number
of potential entry points into the analysis, but the most logical
is the spending clause jurisprudence in which the seminal case is
South Dakota v. Dole, 483 U.S. 203 (1987).  Dole outlines four
categories of constraints on Congress's exercise of its power
under the Spending Clause, but the only Dole condition disputed
here is the fourth and last, i.e., whether CIPA requires
libraries that receive LSTA funds or E-rate discounts to violate
the constitutional rights of their patrons.  As will appear, the
question is not a simple one, and turns on the level of scrutiny
applicable to a public library's content-based restrictions on
patrons' Internet access.  Whether such restrictions are subject
to strict scrutiny, as plaintiffs contend, or only rational basis
review, as the government contends, depends on public forum
doctrine.


The government argues that, in providing Internet access,
public libraries do not create a public forum, since public
libraries may reserve the right to exclude certain speakers from
availing themselves of the forum.  Accordingly, the government
contends that public libraries' restrictions on patrons' Internet
access are subject only to rational basis review.
Plaintiffs respond that the government's ability to restrict
speech on its own property, as in the case of restrictions on
Internet access in public libraries, is not unlimited, and that
the more widely the state facilitates the dissemination of
private speech in a given forum, the more vulnerable the state's
decision is to restrict access to speech in that forum.  We agree
with the plaintiffs that public libraries' content-based
restrictions on their patrons' Internet access are subject to
strict scrutiny.  In providing even filtered Internet access,
public libraries create a public forum open to any speaker around
the world to communicate with library patrons via the Internet on
a virtually unlimited number of topics.  Where the state provides
access to a "vast democratic forum[]," Reno v. ACLU, 521 U.S.
844, 868 (1997), open to any member of the public to speak on
subjects "as diverse as human thought," id. at 870 (internal
quotation marks and citation omitted), the state's decision
selectively to exclude from the forum speech whose content the
state disfavors is subject to strict scrutiny, as such exclusions
risk distorting the marketplace of ideas that the state has
facilitated.  Application of strict scrutiny finds further
support in the extent to which public libraries' provision of
Internet access uniquely promotes First Amendment values in a
manner analogous to traditional public fora such as streets,
sidewalks, and parks, in which content-based restrictions are
always subject to strict scrutiny.


Under strict scrutiny, a public library's use of filtering
software is permissible only if it is narrowly tailored to
further a compelling government interest and no less restrictive
alternative would serve that interest.  We acknowledge that use
of filtering software furthers public libraries' legitimate
interests in preventing patrons from accessing visual depictions
of obscenity, child pornography, or in the case of minors,
material harmful to minors.  Moreover, use of filters also helps
prevent patrons from being unwillingly exposed to patently
offensive, sexually explicit content on the Internet.


We are sympathetic to the position of the government,
believing that it would be desirable if there were a means to
ensure that public library patrons could share in the
informational bonanza of the Internet while being insulated from
materials that meet CIPA's definitions, that is, visual
depictions that are obscene, child pornography, or in the case of
minors, harmful to minors.  Unfortunately this outcome, devoutly
to be wished, is not available in this less than best of all
possible worlds.  No category definition used by the blocking
programs is identical to the legal definitions of obscenity,
child pornography, or material harmful to minors, and, at all
events, filtering programs fail to block access to a substantial
amount of content on the Internet that falls into the categories
defined by CIPA.  As will appear, we credit the testimony of
plaintiffs' expert Dr. Geoffrey Nunberg that the blocking
software is (at least for the foreseeable future) incapable of
effectively blocking the majority of materials in the categories
defined by CIPA without overblocking a substantial amount of
materials.  Nunberg's analysis was supported by extensive record
evidence.  As noted above, this inability to prevent both
substantial amounts of underblocking and overblocking stems from
several sources, including limitations on the technology that
software filtering companies use to gather and review Web pages,
limitations on resources for human review of Web pages, and the
necessary error that results from human review processes.


Because the filtering software mandated by CIPA will block
access to substantial amounts of constitutionally protected
speech whose suppression serves no legitimate government
interest, we are persuaded that a public library's use of
software filters is not narrowly tailored to further any of these
interests.  Moreover, less restrictive alternatives exist that
further the government's legitimate interest in preventing the
dissemination of obscenity, child pornography, and material
harmful to minors, and in preventing patrons from being
unwillingly exposed to patently offensive, sexually explicit
content.  To prevent patrons from accessing visual depictions
that are obscene and child pornography, public libraries may
enforce Internet use policies that make clear to patrons that the
library's Internet terminals may not be used to access illegal
speech.  Libraries may then impose penalties on patrons who
violate these policies, ranging from a warning to notification of
law enforcement, in the appropriate case.  Less restrictive
alternatives to filtering that further libraries' interest in
preventing minors from exposure to visual depictions that are
harmful to minors include requiring parental consent to or
presence during unfiltered access, or restricting minors'
unfiltered access to terminals within view of library staff.
Finally, optional filtering, privacy screens, recessed monitors,
and placement of unfiltered Internet terminals outside of sight-
lines provide less restrictive alternatives for libraries to
prevent patrons from being unwillingly exposed to sexually
explicit content on the Internet.
In an effort to avoid the potentially fatal legal
implications of the overblocking problem, the government falls
back on the ability of the libraries, under CIPA's disabling
provisions, see CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(3)),
CIPA Sec.1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(D)), to unblock
a site that is patently proper yet improperly blocked.  The
evidence reflects that libraries can and do unblock the filters
when a patron so requests.  But it also reflects that requiring
library patrons to ask for a Web site to be unblocked will deter
many patrons because they are embarrassed, or desire to protect
their privacy or remain anonymous.  Moreover, the unblocking may
take days, and may be unavailable, especially in branch
libraries, which are often less well staffed than main libraries.
 Accordingly, CIPA's disabling provisions do not cure the
constitutional deficiencies in public libraries' use of Internet
filters.


Under these circumstances we are constrained to conclude
that the library plaintiffs must prevail in their contention that
CIPA requires them to violate the First Amendment rights of their
patrons, and accordingly is facially invalid, even under the
standard urged on us by the government, which would permit us to
facially invalidate CIPA only if it is impossible for a single
public library to comply with CIPA's conditions without violating
the First Amendment.  In view of the limitations inherent in the
filtering technology mandated by CIPA, any public library that
adheres to CIPA's conditions will necessarily restrict patrons'
access to a substantial amount of protected speech, in violation
of the First Amendment.  Given this conclusion, we need not reach
plaintiffs' arguments that CIPA effects a prior restraint on
speech and is unconstitutionally vague.  Nor do we decide their
cognate unconstitutional conditions theory, though for reasons
explained infra at note 36, we discuss the issues raised by that
claim at some length.
For these reasons, we will enter an Order declaring Sections
1712(a)(2) and 1721(b) of the Children's Internet Protection
Act, codified at 20 U.S.C. Sec. 9134(f) and 47 U.S.C. Sec.
254(h)(6), respectively, to be facially invalid under the
First Amendment and permanently enjoining the defendants
from enforcing those provisions.II.
  Findings of Fact
1.        Statutory Framework
1.        Nature and Operation of the E-rate and LSTA
Programs
In the Telecommunications Act of 1996 ("1996 Act"), Congress
directed the Federal Communications Commission ("FCC") to take
the steps necessary to establish a system of support mechanisms
to ensure the delivery of affordable telecommunications service
to all Americans.  This system, referred to as "universal
service," is codified in section 254 of the Communications Act of
1934, as amended by the 1996 Act.  See 47 U.S.C. Sec. 254.  Congress
specified several groups as beneficiaries of the universal
service support mechanism, including consumers in high-cost
areas, low-income consumers, schools and libraries, and rural
health care providers.  See 47 U.S.C. Sec. 254(h)(1).  The extension
of universal service to schools and libraries in section 254(h)
is commonly referred to as the Schools and Libraries Program, or
"E-rate" Program.


Under the E-rate Program, "[a]ll telecommunications carriers
serving a geographic area shall, upon a bona fide request for any
of its services that are within the definition of universal
service . . ., provide such services to elementary schools,
secondary schools, and libraries for educational purposes at
rates less than the amounts charged for similar services to other
parties."  47 U.S.C. Sec. 254(h)(1)(B).  Under FCC regulations,
providers of "interstate telecommunications" (with certain
exceptions, see 47 C.F.R. Sec. 54.706(d)), must contribute a portion
of their revenue for disbursement among eligible carriers that
are providing services to those groups or areas specified by
Congress in section 254.  To be eligible for the discounts, a
library must: (1) be eligible for assistance from a State library
administrative agency under the Library Services and Technology
Act, see infra; (2) be funded as an independent entity,
completely separate from any schools; and (3) not be operating as
a for-profit business.  See 47 C.F.R. Sec. 54.501(c).  Discounts on
services for eligible libraries are set as a percentage of the
pre-discount price, and range from 20% to 90%, depending on a
library's level of economic disadvantage and its location in an
urban or rural area.  See 47 C.F.R. Sec. 54.505.  Currently, a
library's level of economic disadvantage is based on the
percentage of students eligible for the national school lunch
program in the school district in which the library is located.


The Library Services and Technology Act ("LSTA"), Subchapter
II of the Museum and Library Services Act, 20 U.S.C. Sec. 9101 et
seq., was enacted by Congress in 1996 as part of the Omnibus
Consolidated Appropriations Act of 1997, Pub. L. No. 104-208.
The LSTA establishes three grant programs to achieve the goal of
improving library services across the nation.  Under the Grants
to States Program, LSTA grant funds are awarded, inter alia, in
order to assist libraries in accessing information through
electronic networks and pay for the costs of acquiring or sharing
computer systems and telecommunications technologies.  See 20
U.S.C. Sec. 9141(a).  Through the Grants to States program, LSTA
funds have been used to acquire and pay costs associated with
Internet-accessible computers located in libraries.
2.        CIPA
The Children's Internet Protection Act ("CIPA") was enacted
as part of the Consolidated Appropriations Act of 2001, which
consolidated and enacted several appropriations bills, including
the Miscellaneous Appropriations Act, of which CIPA was a part.
See Pub. L. No. 106-554.  CIPA addresses three distinct types of
federal funding programs: (1) aid to elementary and secondary
schools pursuant to Title III of the Elementary and Secondary
Education Act of 1965, see CIPA Sec. 1711 (amending Title 20 to add
Sec. 3601); (2) LSTA grants to states for support of libraries, see
CIPA Sec. 1712 (amending the Museum and Library Services Act, 20
U.S.C. Sec. 9134); and (3) discounts under the E-rate program, see
CIPA Sec. 1721(a) & (b) (both amending the Communications Act of
1934, 47 U.S.C. Sec. 254(h)).  Only sections 1712 and 1721(b) of
CIPA, which apply to libraries, are at issue in this case.


As explained in more detail below, CIPA requires libraries
that participate in the LSTA and E-rate programs to certify that
they are using software filters on their computers to protect
against visual depictions that are obscene, child pornography, or
in the case of minors, harmful to minors.  CIPA permits library
officials to disable the filters for patrons for bona fide
research or other lawful purposes, but disabling is not permitted
for minor patrons if the library receives E-rate discounts.
1.        CIPA's Amendments to the E-rate Program


Section 1721(b) of CIPA imposes conditions on a library's
participation in the E-rate program.  A library "having one or
more computers with Internet access may not receive services at
discount rates," CIPA Sec. 1721(b) (codified at 47 U.S.C. Sec.
254(h)(6)(A)(i)), unless the library certifies that it is
"enforcing a policy of Internet safety that includes the
operation of a technology protection measure with respect to any
of its computers with Internet access that protects against
access through such computers to visual depictions that are – (I)
obscene; (II) child pornography; or (III) harmful to minors," and
that it is "enforcing the operation of such technology protection
measure during any use of such computers by minors."  CIPA Sec.
1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(B)).   CIPA defines a
"technology protection measure" as "a specific technology that
blocks or filters access to visual depictions that are obscene, .
. . child pornography, . . . or harmful to minors."  CIPA Sec.
1703(b)(1) (codified at 47 U.S.C. Sec. 254(h)(7)(I)).


To receive E-rate discounts, a library must also certify
that filtering software is in operation during adult use of the
Internet.  More specifically, with respect to adults, a library
must certify that it is "enforcing a policy of Internet safety
that includes the operation of a technology protection measure
with respect to any of its computers with Internet access that
protects against access through such computers to visual
depictions that are – (I) obscene; or (II) child pornography,"
and that it is "enforcing the operation of such technology
protection measure during any use of such computers."  CIPA Sec.
1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(C)).  Interpreting the
statutory terms "any use," the FCC has concluded that "CIPA makes
no distinction between computers used only by staff and those
accessible to the public."  In re Federal-State Joint Board on
Universal Service: Children's Internet Protection Act, CC Docket
No. 96-45, Report and Order, FCC 01-120,  30 (Apr. 5, 2001).
With respect to libraries receiving E-rate discounts, CIPA
further specifies that "[a]n administrator, supervisor, or other
person authorized by the certifying authority . . . may disable
the technology protection measure concerned, during use by an
adult, to enable access for bona fide research or other lawful
purpose."  CIPA Sec.1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(D)).
2.        CIPA's Amendments to the LSTA Program
Section 1712 of CIPA amends the Museum and Library Services
Act (20 U.S.C. Sec. 9134(f)) to provide that no funds made available
under the Act "may be used to purchase computers used to access
the Internet, or to pay for direct costs associated with
accessing the Internet," unless such library "has in place" and
is enforcing "a policy of Internet safety that includes the
operation of a technology protection measure with respect to any
of its computers with Internet access that protects against
access through such computers to visual depictions" that are
"obscene" or "child pornography," and, when the computers are in
use by minors, also protects against access to visual depictions
that are "harmful to minors."  CIPA Sec. 1712 (codified at 20 U.S.C.
Sec. 9134(f)(1)).  Section 1712 contains definitions of "technology
protection measure," "obscene," "child pornography," and "harmful
to minors," that are substantially similar to those found in the
provisions governing the E-rate program.  CIPA Sec. 1712 (codified
at 20 U.S.C. Sec. 9134(f)(7)); see also supra note 2.


As under the E-rate program, "an administrator, supervisor
or other authority may disable a technology protection measure .
. . to enable access for bona fide research or other lawful
purposes."  CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(3)).
Whereas CIPA's amendments to the E-rate program permit disabling
for bona fide research or other lawful purposes only during adult
use, the LSTA provision permits disabling for both adults and
minors.
2.        Identity of the Plaintiffs
1.        Library and Library Association Plaintiffs
Plaintiffs American Library Association, Alaska Library
Association, California Library Association, Connecticut Library
Association, Freedom to Read Foundation, Maine Library
Association, New England Library Association, New York Library
Association, and Wisconsin Library Association are non-profit
organizations whose members include public libraries that receive
either E-rate discounts or LSTA funds for the provision of
Internet access.  Because it is a prerequisite to associational
standing, we note that the interests that these organizations
seek to protect in this litigation are central to their raison
d'être.


Plaintiffs Fort Vancouver Regional Library District, in
southwest Washington state; Multnomah County Public Library, in
Multnomah County, Oregon; Norfolk Public Library System, in
Norfolk, Virginia; Santa Cruz Public Library Joint Powers
Authority, in Santa Cruz, California; South Central Library
System ("SCLS"), centered in Madison, Wisconsin; and the
Westchester Library System, in Westchester County, New York, are
public library systems with branch offices in their respective
localities that provide Internet access to their patrons.
The Fort Vancouver Regional Library District, for over three
years from 1999-2001, received $135,000 in LSTA grants and
$19,500 in E-rate discounts for Internet access.  The Multnomah
County Public Library received $70,000 in E-rate discounts for
Internet access this year, and has applied for $100,000 in E-rate
discounts for the upcoming year.  The Norfolk Public Library
System received $90,000 in E-rate discounts for Internet access
this year, and has received a $200,000 LSTA grant to put computer
labs in eight of its libraries.  The Santa Cruz Public Library
Joint Powers Authority received $20,560 in E-rate discounts for
Internet access in 2001-02.  The SCLS received between $3,000 and
$5,000 this year in E-rate discounts for Internet access.
The Fort Vancouver Regional Library District Board is a
public board whose members are appointed by elected county
commissioners.  The Multnomah County Library is a county
department, whose board is appointed by the county chair and
confirmed by the other commissioners.  The SCLS is an aggregation
of 51 independently governed statutory member public libraries,
whose relationship to SCLS is defined by state law.  The
governing body of the SCLS is the Library Board of Trustees,
which consists of 20 members nominated by county executives and
ratified by county boards of supervisors.
2.        Patron and Patron Association Plaintiffs


Plaintiffs Association of Community Organizations for Reform
Now, Friends of the Philadelphia City Institute Library, and the
Pennsylvania Alliance for Democracy are nonprofit organizations
whose members include individuals who access the Internet at
public libraries that receive E-rate discounts or LSTA funds for
the provision of public Internet access.  We note for the purpose
of associational standing that the interests that these
organizations seek to protect in this litigation are germane to
their purposes.
Plaintiffs Emmalyn Rood, Mark Brown, Elizabeth Hrenda, C.
Donald Weinberg, Sherron Dixon, by her father and next friend
Gordon Dixon, James Geringer, Marnique Tynesha Overby, by her
next friend Carolyn C. Williams, William J. Rosenbaum, Carolyn C.
Williams, and Quiana Williams, by her mother and next friend
Sharon Bernard, are adults and minors who use the Internet at
public libraries that, to the best of their knowledge, do not
filter patrons' access to the Internet.  Several of these
plaintiffs do not have Internet access from home.
Emmalyn Rood is a sixteen-year-old who uses the Multnomah
County Public Library.  When she was 13, she used the Internet at
the Multnomah County Public Library to research issues relating
to her sexual identity.  Ms. Rood did not use her home or school
computer for this research, in part because she wished her
searching to be private.  Although the library offered patrons
the option of using filtering software, Ms. Rood did not use that
option because she had had previous experience with such programs
blocking information that was valuable to her, including
information relating to gay and lesbian issues.


Plaintiff Mark Brown used the Internet at the Philadelphia
Free Library to research breast cancer and reconstructive surgery
for his mother who had breast surgery.  Mr. Brown's research at
the library provided him and his mother with essential
information about his mother's medical condition and potential
treatments.
3.        Web Publisher Plaintiffs
Plaintiff Afraid to Ask, Inc., based in Saunderstown, Rhode
Island, publishes a health education Web site,
www.AfraidtoAsk.com.  Dr. Jonathan Bertman, the president and
medical director of Afraid to Ask, is a family practice physician
in rural Rhode Island and a clinical assistant professor of
family medicine at Brown University.  AfraidtoAsk.com's mission
is to provide detailed information on sensitive health issues,
often of a sexual nature, such as sexually transmitted diseases,
male and female genitalia, and birth control, sought by people of
all ages who would prefer to learn about sensitive health issues
anonymously, i.e., they are "afraid to ask."  As part of its
educational mission, AfraidtoAsk.com often uses graphic images of
sexual anatomy to convey information.  Its primary audience is
teens and young adults.  Based on survey data collected on the
site, half of the people visiting the site are under 24 years old
and a quarter are under 18.  AfraidtoAsk.com is blocked by
several leading blocking products as containing sexually explicit
content.


Plaintiff Alan Guttmacher Institute has a Web site that
contains information about its activities and objectives,
including its mission to protect the reproductive choices of
women and men.  Plaintiff Planned Parenthood Federation of
America, Inc. ("Planned Parenthood") is a national voluntary
organization in the field of reproductive health care.  Planned
Parenthood owns and operates several Web sites that provide a
range of information about reproductive health, from
contraception to prevention of sexually transmitted diseases, to
finding an abortion provider, and to information about the drug
Mifepristone.  Plaintiff Safersex.org is a Web site that offers
free educational information on how to practice safer sex.
Plaintiff Ethan Interactive, Inc., d/b/a Out In America, is
an online content provider that owns and operates 64 free Web
sites for gay, lesbian, bisexual and transgendered persons
worldwide.  Plaintiff PlanetOut Corporation is an online content
provider for gay, lesbian, bisexual and transgendered persons.
Plaintiff the Naturist Action Committee ("NAC") is the nonprofit
political arm of the Naturist Society, a private organization
that promotes a way of life characterized by the practice of
nudity.  The NAC Web site provides information about Naturist
Society activities and about state and local laws that may affect
the rights of Naturists or their ability to practice Naturism,
and includes nude photographs of its members.


Plaintiff Wayne L. Parker was the Libertarian candidate in
the 2000 U.S. Congressional election for the Fifth District of
Mississippi (and is running again in 2002).  He publishes a Web
site that communicates information about his campaign and that
provides information about his political views and the
Libertarian Party to the public.  Plaintiff Jeffrey Pollock was
the Republican candidate in the 2000 U.S. Congressional election
for the Third District of Oregon.  He operates a Web site that is
now promoting his candidacy for Congress in 2002.
3.        The Internet
1.        Background
As we noted at the outset, the Internet is a vast,
interactive medium consisting of a decentralized network of
computers around the world.  The Internet presents low entry
barriers to anyone who wishes to provide or distribute
information.  Unlike television, cable, radio, newspapers,
magazines or books, the Internet provides an opportunity for
those with access to it to communicate with a worldwide audience
at little cost.  At least 400 million people use the Internet
worldwide, and approximately 143 million Americans were using the
Internet as of September 2001.  Nat'l Telecomm. & Info. Admin., A
Nation Online: How Americans Are Expanding Their Use of the
Internet  (February 2002), available at
http://www.ntia.doc.gov/ntiahome/dn/.


The World Wide Web is a part of the Internet that consists
of a network of computers, called "Web servers," that host
"pages" of content accessible via the Hypertext Transfer Protocol
or "HTTP."  Anyone with a computer connected to the Internet can
search for and retrieve information stored on Web servers located
around the world.  Computer users typically access the Web by
running a program called a "browser" on their computers.  The
browser displays, as individual pages on the computer screen, the
various types of content found on the Web and lets the user
follow the connections built into Web pages – called "hypertext
links," "hyperlinks," or "links" – to additional content.  Two
popular browsers are Microsoft Internet Explorer and Netscape
Navigator.
A "Web page" is one or more files a browser graphically
assembles to make a viewable whole when a user requests content
over the Internet.  A Web page may contain a variety of different
elements, including text, images, buttons, form fields that the
user can fill in, and links to other Web pages.  A "Web site" is
a term that can be used in several different ways.  It may refer
to all of the pages and resources available on a particular Web
server.  It may also refer to all the pages and resources
associated with a particular organization, company or person,
even if these are located on different servers, or in a
subdirectory on a single server shared with other, unrelated
sites.  Typically, a Web site has as an intended point of entry,
a "home page," which includes links to other pages on the same
Web site or to pages on other sites.  Online discussion groups
and chat rooms relating to a variety of subjects are available
through many Web sites.


Users may find content on the Web using engines that search
for requested keywords.  In response to a keyword request, a
search engine will display a list of Web sites that may contain
relevant content and provide links to those sites.  Search
engines and directories often return a limited number of sites in
their search results (e.g., the Google search engine will return
only 2,000 sites in response to a search, even if it has found,
for example, 530,000 sites in its index that meet the search
criteria).
A user may also access content on the Web by typing a URL
(Uniform Resource Locator) into the address line of the browser.
 A URL is an address that points to some resource located on a
Web server that is accessible over the Internet.  This resource
may be a Web site, a Web page, an image, a sound or video file,
or other resource.  A URL can be either a numeric Internet
Protocol or "IP" address, or an alphanumeric "domain name"
address.  Every Web server connected to the Internet is assigned
an IP address.  A typical IP address looks like "13.1.64.14."
Typing the URL "http://13.1.64.14/" into a browser will bring the
user to the Web server that corresponds to that address.  For
convenience, most Web servers have alphanumeric domain name
addresses in addition to IP addresses.  For example, typing in
"http://www.paed.uscourts.gov" will bring the user to the same
Web server as typing in "http://204.170.64.143."
Every time a user attempts to access material located on a
Web server by entering a domain name address into a Web browser,
a request is made to a Domain Name Server, which is a directory
of domain names and IP addresses, to "resolve," or translate, the
domain name address into an IP address.  That IP address is then
used to locate the Web server from which content is being
requested.  A Web site may be accessed by using either its domain
name address or its IP address.


A domain name address typically consists of several parts.
For example, the alphanumeric URL
http://www.paed.uscourts.gov/documents/opinions can be broken
down into three parts.  The first part is the transfer protocol
the computer will use in accessing the content (e.g., "http" for
Hypertext Transfer Protocol); next is the name of the host server
on which the information is stored (e.g., www.paed.uscourts.gov);
and then the name of the particular file or directory on that
server (e.g., /documents/opinions).
A single Web page may be associated with more than one URL.
 For example, the URLs http://www.newyorktimes.com and
http://www.nytimes.com will both take the user to the New York
Times home page.  The topmost directory in a Web site is often
referred to as that Web site's root directory or root URL.  For
example, in http://www.paed.uscourts.gov/documents, the root URL
is http://www.paed.uscourts.gov.  There may be hundreds or
thousands of pages under a single root URL, or there may be one
or only a few.


There are a number of Web hosting companies that maintain
Web sites for other businesses and individuals, which can lead to
vast amounts of diverse content being located at the same IP
address.  Hosting services are offered either for a fee, or in
some cases, for free, allowing any individual with Internet
access to create a Web site.  Some hosting services are provided
through the process of "IP-based hosting," where each domain name
is assigned a unique IP number.  For example, www.baseball.com
might map to the IP address "10.3.5.9" and www.XXX.com might map
to the IP address "10.0.42.5."  Other hosting services are
provided through the process of "name-based hosting," where
multiple domain name addresses are mapped to a single IP address.
 If the hosting company were using this method, both
www.baseball.com and www.XXX.com could map to a single IP
address, e.g., "10.3.5.9."  As a result of the "name-based
hosting" process, up to tens of thousands of pages with
heterogeneous content may share a single IP address.
2.        The Indexable Web, the "Deep Web"; Their Size
and Rates of Growth and Change

The universe of content on the Web that could be indexed, in
theory, by standard search engines is known as the "publicly
indexable Web."  The publicly indexable Web is limited to those
pages that are accessible by following a link from another Web
page that is recognized by a search engine.  This limitation
exists because online indexing techniques used by popular search
engines and directories such as Yahoo, Lycos and AltaVista, are
based on "spidering" technology, which finds sites to index by
following links from site to site in a continuous search for new
content.  If a Web page or site is not linked by others, then
spidering will not discover that page or site.


Furthermore, many larger Web sites contain instructions,
through software, that prevent spiders from investigating that
site, and therefore the contents of such sites also cannot be
indexed using spidering technology.  Because of the vast size and
decentralized structure of the Web, no search engine or directory
indexes all of the content on the publicly indexable Web.  We
credit current estimates that no more than 50% of the content
currently on the publicly indexable Web has been indexed by all
search engines and directories combined.  No currently available
method or combination of methods for collecting URLs can collect
the addresses of all URLs on the Web.
The portion of the Web that is not theoretically indexable
through the use of "spidering" technology, because other Web
pages do not link to it, is called the "Deep Web."  Such sites or
pages can still be made publicly accessible without being made
publicly indexable by, for example, using individual or mass
emailings (also known as "spam") to distribute the URL to
potential readers or customers, or by using types of Web links
that cannot be found by spiders but can be seen and used by
readers.  "Spamming" is a common method of distributing to
potential customers links to sexually explicit content that is
not indexable.
Because the Web is decentralized, it is impossible to say
exactly how large it is.  A 2000 study estimated a total of 7.1
million unique Web sites, which at the Web's historical rate of
growth, would have increased to 11 million unique sites as of
September 2001.  Estimates of the total number of Web pages vary,
but a figure of 2 billion is a reasonable estimate of the number
of Web pages that can be reached, in theory, by standard search
engines.  We need not make a specific finding as to a figure, for
by any measure the Web is extremely vast, and it is constantly
growing.  The indexable Web is growing at a rate of approximately
1.5 million pages per day.  The size of the un-indexable Web, or
the "Deep Web," while impossible to determine precisely, is
estimated to be two to ten times that of the publicly indexable
Web.


In addition to growing rapidly, Web pages and sites are
constantly being removed, or changing their content.  Web sites
or pages can change content without changing their domain name
addresses or IP addresses.  Individual Web pages have an average
life span of approximately 90 days.
3.        The Amount of Sexually Explicit Material on the
Web
There is a vast amount of sexually explicit material
available via the Internet and the Web.  Sexually explicit
material on the Internet is easy to access using any public
search engine, such as, for example, Google or AltaVista.
Although much of the sexually explicit material available on the
Web is posted on commercial sites that require viewers to pay in
order to gain access to the site, a large number of sexually
explicit sites may be accessed for free and without providing any
registration information.  Most importantly, some Web sites that
contain sexually explicit content have innocuous domain names and
therefore can be reached accidentally.  A commonly cited example
is http://www.whitehouse.com.  Other innocent-sounding URLs that
retrieve graphic, sexually explicit depictions include
http://www.boys.com, http://www.girls.com,
http://www.coffeebeansupply.com, and http://www.BookstoreUSA.com.
 Moreover, commercial Web sites that contain sexually explicit
material often use a technique of attaching pop-up windows to
their sites, which open new windows advertising other sexually
explicit sites without any prompting by the user.  This technique
makes it difficult for a user quickly to exit all of the pages
containing sexually explicit material, whether he or she
initially accessed such material intentionally or not.


The percentage of Web pages on the indexed Web containing
sexually explicit content is relatively small.  Recent estimates
indicate that no more than 1-2% of the content on the Web is
pornographic or sexually explicit.  However, the absolute number
of Web sites offering free sexually explicit material is
extremely large, approximately 100,000 sites.
4.       American Public Libraries
The more than 9,000 public libraries in the United States
are typically funded (at least in large part) by state or local
governments.  They are frequently overseen by a board of
directors that is either elected or is appointed by an elected
official or a body of elected officials.  We heard testimony from
librarians and library board members working in eight public
library systems in different communities across the country, some
of whom are also plaintiffs in this case.  They hailed from the
following library systems: Fort Vancouver, Washington; Fulton
County, Indiana; Greenville, South Carolina; a regional
consortium of libraries centered in Madison, Wisconsin; Multnomah
County, Oregon; Norfolk, Virginia; Tacoma, Washington; and
Westerville, Ohio.  The parties also took depositions from
several other librarians and library board members who did not
testify during the trial, and submitted a number of other
documents regarding individual libraries' policies.
1.        The Mission of Public Libraries, and Their
Reference and Collection Development Practices



American public libraries operate in a wide variety of
communities, and it is not surprising that they do not all view
their mission identically.  Nor are their practices uniform.
Nevertheless, they generally share a common mission – to provide
patrons with a wide range of information and ideas.
Public libraries across the country have endorsed the
American Library Association's ("ALA") "Library Bill of Rights"
and/or "Freedom to Read Statement," including every library
testifying on behalf of the defendants in this case.  The
"Library Bill of Rights," first adopted by the ALA in 1948,
provides, among other things, that "[b]ooks and other library
resources should be provided for the interest, information, and
enlightenment of all people of the community the library serves."
 It also states that libraries "should provide materials and
information presenting all points of view on current and
historical issues" and that library materials "should not be
proscribed or removed because of partisan or doctrinal
disapproval."
The ALA's "Freedom to Read" statement, adopted in 1953 and
most recently updated in July 2000, states, among other things,
that "[i]t is in the public interest for publishers and
librarians to make available the widest diversity of views and
expressions, including those that are unorthodox or unpopular
with the majority."  It also states that "[i]t is the
responsibility of . . . librarians . . . to contest encroachments
upon th[e] freedom [to read] by individuals or groups seeking to
impose their own standards or tastes upon the community at
large."


Public libraries provide information not only for
educational purposes, but also for recreational, professional,
and other purposes.  For example, Ginnie Cooper, Director of the
Multnomah County Library, testified that some of the library's
most popular items include video tapes of the British
Broadcasting Corporation's "Fawlty Towers" series, and also print
and "books on tape" versions of science fiction, romance, and
mystery novels.  Many public libraries include sexually explicit
materials in their print collection, such as The Joy of Sex and
The Joy of Gay Sex.  Very few public libraries, however, collect
more graphic sexually explicit materials, such as XXX-rated
videos, or Hustler magazine.
The mission of public librarians is to provide their patrons
with a wide array of information, and they surely do so.
Reference librarians across America answer more than 7 million
questions weekly.  If a patron has a specialized need for
information not available in the public library, the professional
librarian will use a reference interview to find out what
information is needed to help the user, including the purpose for
which an item will be used.  Reference librarians are trained to
assist patrons without judging the patron's purpose in seeking
information, or the content of the information that the patron is
seeking.


Many public libraries routinely provide patrons with access
to materials not in their collections through the use of
bibliographic access tools and interlibrary loan programs.
Public libraries typically will assist patrons in obtaining
access to all materials except those that are illegal, even if
they do not collect those materials in their physical collection.
 In order to provide this access, a librarian may attempt to find
material not included in the library's own collection in other
libraries in the system, through interlibrary loan, or through a
referral, perhaps to a government agency or a commercial
bookstore.  Interlibrary loan is expensive, however, and is
therefore used infrequently.
Public librarians also apply professional standards to their
collection development practices.  Public libraries generally
make material selection decisions and frame policies governing
collection development at the local level.  Collection
development is a key subject in the curricula of Masters of
Library Science programs and is defined by certain practices.  In
general, professional standards guide public librarians to build,
develop and create collections that have certain characteristics,
such as balance in its coverage and requisite and appropriate
quality.  To this end, the goal of library collections is not
universal coverage, but rather to find those materials that would
be of the greatest direct benefit or interest to the community.
In making selection decisions, librarians consider criteria
including the content of the material, its accuracy, the title's
niche in relation to the rest of the collection, the authority of
the author, the publisher, the work's presentation, and how it
compares with other material available in the same genre or on
the same subject.


In pursuing the goal of achieving a balanced collection that
serves the needs and interests of their patrons, librarians
generally have a fair amount of autonomy, but may also be guided
by a library's collection development policy.  These collection
development policies are often drawn up in conjunction with the
libraries' governing boards and with representatives from the
community, and may be the result of public hearings, discussions
and other input.
Although many librarians use selection aids, such as review
journals and bibliographies, as a guide to the quality of
potential acquisitions, they do not generally delegate their
selection decisions to parties outside of the public library or
its governing body.  One limited exception is the use of third-
party vendors or approval plans to acquire print and video
resources.  In such arrangements, third-party vendors provide
materials based on the library's description of its collection
development criteria.  The vendor sends materials to the library,
and the library retains the materials that meet its collection
development needs and returns the materials that do not.  Even in
this arrangement, however, the librarians still retain ultimate
control over their collection development and review all of the
materials that enter their library's collection.
2.        The Internet in Public Libraries


The vast majority of public libraries offer Internet access
to their patrons.  According to a recent report by the U.S.
National Commission on Libraries and Information Science,
approximately 95% of all public libraries provide public access
to the Internet.  John C. Bertot & Charles R. McClure, Public
Libraries and the Internet 2000: Summary Findings and Data
Tables, Report to National Commission on Libraries and
Information Science, at 3.  The Internet vastly expands the
amount of information available to patrons of public libraries.
The widespread availability of Internet access in public
libraries is due, in part, to the availability of public funding,
including state and local funding and the federal funding
programs regulated by CIPA.
Many libraries face a large amount of patron demand for
their Internet services.  At some libraries, patron demand for
Internet access during a given day exceeds the supply of computer
terminals with access to the Internet.  These libraries use sign-
in and time limit procedures and/or establish rules regarding the
allowable uses of the terminals, in an effort to ration their
computer resources.  For example, some of the libraries whose
librarians testified at trial prohibit the use of email and chat
functions on their public Internet terminals.
Public libraries play an important role in providing
Internet access to citizens who would not otherwise possess it.
Of the 143 million Americans using the Internet, approximately
10%, or 14.3 million people, access the Internet at a public
library.   Internet access at public libraries is more often used
by those with lower incomes than those with higher incomes.
About 20.3% of Internet users with household family income of
less than $15,000 per year use public libraries for Internet
access.  Approximately 70% of libraries serving communities with
poverty levels in excess of 40% receive E-rate discounts.
1.        Internet Use Policies in Public Libraries


Approximately 95% of libraries with public Internet access
have some form of "acceptable use" policy or "Internet use"
policy governing patrons' use of the Internet.  These policies
set forth the conditions under which patrons are permitted to
access and use the library's Internet resources.  These policies
vary widely.  Some of the less restrictive policies, like those
held by Multnomah County Library and Fort Vancouver Regional
Library, do not prohibit adult patrons from viewing sexually
explicit materials on the Web, as long as they do so at terminals
with privacy screens or recessed monitors, which are designed to
prevent other patrons from seeing the material that they are
viewing, and as long as it does not violate state or federal law
to do so.  Other libraries prohibit their patrons from viewing
all "sexually explicit" or "sexually graphic" materials.
Some libraries prohibit the viewing of materials that are
not necessarily sexual, such as Web pages that are "harmful to
minors," "offensive to the public," "objectionable," "racially
offensive," or simply "inappropriate."  Other libraries restrict
access to Web sites that the library just does not want to
provide, even though the sites are not necessarily offensive.
For example, the Fulton County Public Library restricts access to
the Web sites of dating services.  Similarly, the Tacoma Public
Library's policy does not allow patrons to use the library's
Internet terminals for personal email, for online chat, or for
playing games.
In some cases, libraries instituted Internet use policies
after having experienced specific problems, whereas in other
cases, libraries developed detailed Internet use policies and
regulatory measures (such as using filtering software) before
ever offering public Internet access.  Essentially four interests
motivate libraries to institute Internet use policies and to
apply the methods described above to regulate their patrons' use
of the Internet.


First, libraries have sought to protect patrons (especially
children) and staff members from accidentally viewing sexually
explicit images, or other Web pages containing content deemed
harmful, that other patrons are viewing on the Internet.  For
example, some librarians who testified described situations in
which patrons left sexually explicit images minimized on an
Internet terminal so that the next patron would see them when
they began using it, or in which patrons printed sexually
explicit images from a Web site and left them at a public
printer.
Second, libraries have attempted to protect patrons from
unwittingly or accidentally accessing Web pages that they do not
wish to see while they are using the Internet.  For example, the
Memphis-Shelby County (Tennessee) Public Library's Internet use
policy states that the library "employs filtering technology to
reduce the possibility that customers may encounter objectionable
content in the form of depictions of full nudity and sexual
acts."


Third, libraries have sought to keep patrons (again,
especially children) from intentionally accessing sexually
explicit materials or other materials that the library deems
inappropriate.  For example, a study of the Tacoma Public
Library's Internet use logs for the year 2000 showed that users
between the ages of 11 and 15 accounted for 41% of the filter
blocks that occurred on library computers.  The study, which we
credit, concluded that children and young teens were actively
seeking to access sexually explicit images in the library.  The
Greenville Library's Board of Directors was particularly
concerned that patrons were accessing obscene materials in the
public library in violation of South Carolina's obscenity
statute.
Finally, some libraries have regulated patrons' Internet use
to attempt to control patrons' inappropriate (or illegal)
behavior that is thought to stem from viewing Web pages that
contain sexually explicit materials or content that is otherwise
deemed unacceptable.
We recognize the concerns that led several of the public
libraries whose librarians and board members testified in this
case to start using Internet filtering software.  The testimony
of the Chairman of the Board of the Greenville Public Library is
illustrative.  In December 1999, there was considerable local
press coverage in Greenville concerning adult patrons who
routinely used the library to surf the Web for pornography.  In
response to public outcry stemming from the newspaper report, the
Board of Trustees held a special board meeting to obtain
information and to communicate with the public concerning the
library's provision of Internet access.  At this meeting, the
Board learned for the first time of complaints about children
being exposed to pornography that was displayed on the library's
Internet terminals.


In late January to early February of 2000, the library
installed privacy screens and recessed terminals in an effort to
restrict the display of sexually explicit Web sites at the
library.  In February, 2000, the Board informed the library staff
that they were expected to be familiar with the South Carolina
obscenity statute and to enforce the policy prohibition on access
to obscene materials, child pornography, or other materials
prohibited under applicable local, state, and federal laws.
Staff were told that they were to enforce the policy by means of
a "tap on the shoulder."  Prior to adopting its current Internet
Use Policy, the Board adopted an "Addendum to Current Internet
Use Policy."  Under the policy, the Board temporarily instituted
a two-hour time limit per day for Internet use; reduced
substantially the number of computers with Internet access in the
library; reconfigured the location of the computers so that
librarians had visual contact with all Internet-accessible
terminals; and removed the privacy screens from terminals with
Internet access.
Even after the Board implemented the privacy screens and
later the "tap-on-the-shoulder" policy combined with placing
terminals in view of librarians, the library experienced a high
turnover rate among reference librarians who worked in view of
Internet terminals.  Finding that the policies that it had tried
did not prevent the viewing of sexually explicit materials in the
library, the Board at one point considered discontinuing Internet
access in the library.  The Board finally concluded that the
methods that it had used to regulate Internet use were not
sufficient to stem the behavioral problems that it thought were
linked to the availability of pornographic materials in the
library.  As a result, it implemented a mandatory filtering
policy.


We note, however, that none of the libraries proffered by
the defendants presented any systematic records or quantitative
comparison of the amount of criminal or otherwise inappropriate
behavior that occurred in their libraries before they began using
Internet filtering software compared to the amount that happened
after they installed the software.  The plaintiffs' witnesses
also testified that because public libraries are public places,
incidents involving inappropriate behavior in libraries (sexual
and otherwise) existed long before libraries provided access to
the Internet.
2.        Methods for Regulating Internet Use
The methods that public libraries use to regulate Internet
use vary greatly.  They can be organized into four categories:
(1) channeling patrons' Internet use; (2) separating patrons so
that they will not see what other patrons are viewing; (3)
placing Internet terminals in public view and having librarians
observe patrons to make sure that they are complying with the
library's Internet use policy; and (4) using Internet filtering
software.
The first category – channeling patrons' Internet use –
frequently includes offering training to patrons on how to use
the Internet, including how to access the information that they
want and to avoid the materials that they do not want.  Another
technique that some public libraries use to direct their patrons
to pages that the libraries have determined to be accurate and
valuable is to establish links to "recommended Web sites" from
the public library's home page (i.e., the page that appears when
patrons begin a session at one of the library's public Internet
terminals).  Librarians select these recommended Web sites by
using criteria similar to those employed in traditional
collection development.  However, unless the library determines
otherwise, selection of these specific sites does not preclude
patrons from attempting to access other Internet Web sites.


Libraries may extend the "recommended Web sites" method
further by limiting patrons' access to only those Web sites that
are reviewed and selected by the library's staff.  For example,
in 1996, the Westerville, Ohio Library offered Internet access to
children through a service called the "Library Channel."  This
service was intended to be a means by which the library could
organize the Internet in some fashion for presentation to
patrons.  Through the Library Channel, the computers in the
children's section of the library were restricted to 2,000 to
3,000 sites selected by librarians.  After three years,
Westerville stopped using the Library Channel system because it
overly constrained the children's ability to access materials on
the Internet, and because the library experienced several
technical problems with the system.


Public libraries also use several different techniques to
separate patrons during Internet sessions so that they will not
see what other patrons are viewing.  The simplest way to achieve
this result is to position the library's public Internet
terminals so that they are located away from traffic patterns in
the library (and from other terminals), for example, by placing
them so that they face a wall.  This method is obviously
constrained by libraries' space limitations and physical layout.
 Some libraries have also installed privacy screens on their
public Internet terminals.  These screens make a monitor appear
blank unless the viewer is looking at it head-on.   Although the
Multnomah and Fort Vancouver Libraries submitted records showing
that they have received few complaints regarding patrons'
unwilling exposure to materials on the Internet, privacy screens
do not always prevent library patrons or employees from
inadvertently seeing the materials that another patron is viewing
when passing directly behind a terminal.  They also have the
drawback of making it difficult for patrons to work together at a
single terminal, or for librarians to assist patrons at
terminals, because it is difficult for two people to stand side
by side and view a screen at the same time.  Some library patrons
also find privacy screens to be a hindrance and have attempted to
remove them in order to improve the brightness of the screen or
to make the view better.


Another method that libraries use to prevent patrons from
seeing what other patrons are viewing on their terminals is the
installation of "recessed monitors."  Recessed monitors are
computer screens that sit below the level of a desk top and are
viewed from above.  Although recessed monitors, especially when
combined with privacy screens, eliminate almost all of the
possibility of a patron accidentally viewing the contents on
another patron's screen, they suffer from the same drawbacks as
privacy screens, that is, they make it difficult for patrons to
work together or with a librarian at a single terminal.  Some
librarians also testified that recessed monitors are costly, but
did not indicate how expensive they are compared to privacy
screens or filtering software.  A related technique that some
public libraries use is to create a separate children's Internet
viewing area, where no adults except those accompanying children
in their care may use the Internet terminals.  This serves the
objective of keeping children from inadvertently viewing
materials appropriate only for adults that adults may be viewing
on nearby terminals.
A third set of techniques that public libraries have used to
enforce their Internet use policies takes the opposite tack from
the privacy screens/recessed monitors approach by placing all of
the library's public Internet terminals in prominent and visible
locations, such as near the library's reference desk.  This
approach allows librarians to enforce their library's Internet
use policy by observing what patrons are viewing and employing
the tap-on-the-shoulder policy.  Under this approach, when
patrons are viewing materials that are inconsistent with the
library's policies, a library staff member approaches them and
asks them to view something else, or may ask them to end their
Internet session.  A patron who does not comply with these
requests, or who repeatedly views materials not permitted under
the library's Internet use policy, may have his or her Internet
or library privileges suspended or revoked.  But many librarians
are uncomfortable with approaching patrons who are viewing
sexually explicit images, finding confrontation unpleasant.
Hence some libraries are reluctant to apply the tap-on-the-
shoulder policy.


The fourth category of methods that public libraries employ
to enforce their Internet use policies, and the one that gives
rise to this case, is the use of Internet filtering software.
According to the June 2000 Survey of Internet Access Management
in Public Libraries, approximately 7% of libraries with public
Internet access had mandated the use of blocking programs by
adult patrons.  Some public libraries provide patrons with the
option of using a blocking program, allowing patrons to decide
whether to engage the program when they or their children access
the Internet.  Other public libraries require their child patrons
to use filtering software, but not their adult patrons.
Filtering software vendors sell their products on a
subscription basis.  The cost of a subscription varies with the
number of computers on which the filtering software will be used.
 In 2001, the cost of the Cyber Patrol filtering software was
$1,950 for 100 terminal licenses.  The Greenville County Library
System pays $2,500 per year for the N2H2 filtering software, and
a subscription to the Websense filter costs Westerville Public
Library approximately $1,200 per year.
No evidence was presented on the cost of privacy screens,
recessed monitors, and the tap-on-the-shoulder policy, relative
to the costs of filtering software.  Nor did any of the libraries
proffered by the government present any quantitative evidence on
the relative effectiveness of use of privacy screens to prevent
patrons from being unwillingly exposed to sexually explicit
material, and the use of filters, discussed below.  No evidence
was presented, for example, comparing the number of patron
complaints in those libraries that have tried both methods.


The librarians who testified at trial whose libraries use
Internet filtering software all provide methods by which their
patrons may ask the library to unblock specific Web sites or
pages.  Of these, only the Tacoma Public Library allows patrons
to request that a URL be unblocked without providing any
identifying information; Tacoma allows patrons to request a URL
by sending an email from the Internet terminal that the patron is
using that does not contain a return email address for the user.
 David Biek, the head librarian at the Tacoma Library's main
branch, testified at trial that the library keeps records that
would enable it to know which patrons made unblocking requests,
but does not use that information to connect users with their
requests.  Biek also testified that he periodically scans the
library's Internet use logs to search for: (1) URLs that were
erroneously blocked, so that he may unblock them; or (2) URLs
that should have been blocked, but were not, in order to add them
to a blocked category list.  In the course of scanning the use
logs,  Biek has also found what looked like attempts to access
child pornography.  In two cases, he communicated his findings to
law enforcement and turned over the logs in response to a
subpoena.
At all events, it takes time for librarians to make
decisions about whether to honor patrons' requests to unblock Web
pages.  In the libraries proffered by the defendants, unblocking
decisions sometimes take between 24 hours and a week.  Moreover,
none of these libraries allows unrestricted access to the
Internet pending a determination of the validity of a Web site
blocked by the blocking programs.  A few of the defendants'
proffered libraries represented that individual librarians would
have the discretion to allow a patron to have full Internet
access on a staff computer upon request, but none claimed that
allowing such access was mandatory, and patron access is
supervised in every instance.  None of these libraries makes
differential unblocking decisions based on the patrons' age.
Unblocking decisions are usually made identically for adults and
minors.  Unblocking decisions even for adults are usually based
on suitability of the Web site for minors.


It is apparent that many patrons are reluctant or unwilling
to ask librarians to unblock Web pages or sites that contain only
materials that might be deemed personal or embarrassing, even if
they are not sexually explicit or pornographic.  We credit the
testimony of Emmalyn Rood, discussed above, that she would have
been unwilling as a young teen to ask a librarian to disable
filtering software so that she could view materials concerning
gay and lesbian issues.  We also credit the testimony of Mark
Brown, who stated that he would have been too embarrassed to ask
a librarian to disable filtering software if it had impeded his
ability to research treatments and cosmetic surgery options for
his mother when she was diagnosed with breast cancer.
The pattern of patron requests to unblock specific URLs in
the various libraries involved in this case also confirms our
finding that patrons are largely unwilling to make unblocking
requests unless they are permitted to do so anonymously.  For
example, the Fulton County Library receives only about 6
unblocking requests each year, the Greenville Public Library has
received only 28 unblocking requests since August 21, 2000, and
the Westerville, Ohio Library has received fewer than 10
unblocking requests since 1999.  In light of the fact that a
substantial amount of overblocking occurs in these very
libraries, see infra Subsection II.E.4, we find that the lack of
unblocking requests in these libraries does not reflect the
effectiveness of the filters, but rather reflects patrons'
reluctance to ask librarians to unblock sites.
5.        Internet Filtering Technology
1.        What Is Filtering Software, Who Makes It, and
What Does It Do?


Commercially available products that can be configured to
block or filter access to certain material on the Internet are
among the "technology protection measures" that may be used to
attempt to comply with CIPA.  There are numerous filtering
software products available commercially.  Three network-based
filtering products – SurfControl's Cyber Patrol, N2H2's
Bess/i2100, and Secure Computing's SmartFilter – currently have
the lion's share of the public library market.  The parties in
this case deposed representatives from these three companies.
Websense, another network-based blocking product, is also
currently used in the public library market, and was discussed at
trial.
Filtering software may be installed either on an individual
computer or on a computer network.  Network-based filtering
software products are designed for use on a network of computers
and funnel requests for Internet content through a centralized
network device.   Of the various commercially available blocking
products, network-based products are the ones generally marketed
to institutions, such as public libraries, that provide Internet
access through multiple terminals.
Filtering programs function in a fairly simple way.  When an
Internet user requests access to a certain Web site or page,
either by entering a domain name or IP address into a Web
browser, or by clicking on a link, the filtering software checks
that domain name or IP address against a previously compiled
"control list" that may contain up to hundreds of thousands of
URLs.  The three companies deposed in this case have control
lists containing between 200,000 and 600,000 URLs.  These lists
determine which URLs will be blocked.


Filtering software companies divide their control lists into
multiple categories for which they have created unique
definitions.  SurfControl uses 40 such categories, N2H2 uses 35
categories (and seven "exception" categories), Websense uses 30
categories, and Secure Computing uses 30 categories.  Filtering
software customers choose which categories of URLs they wish to
enable.  A user "enables" a category in a filtering program by
configuring the program to block all of the Web pages listed in
that category.
The following is a list of the categories offered by each of
these four filtering programs.  SurfControl's Cyber Patrol offers
the following categories:  Adult/Sexually Explicit;
Advertisements; Arts & Entertainment; Chat; Computing & Internet;
Criminal Skills; Drugs, Alcohol & Tobacco; Education; Finance &
Investment; Food & Drink; Gambling; Games; Glamour & Intimate
Apparel; Government & Politics; Hacking; Hate Speech; Health &
Medicine; Hobbies & Recreation; Hosting Sites; Job Search &
Career Development; Kids' Sites; Lifestyle & Culture; Motor
Vehicles; News; Personals & Dating; Photo Searches; Real Estate;
Reference; Religion; Remote Proxies; Sex Education; Search
Engines; Shopping; Sports; Streaming Media; Travel; Usenet News;
Violence; Weapons; and Web-based Email.


N2H2 offers the following categories:  Adults Only; Alcohol;
Auction; Chat; Drugs; Electronic Commerce; Employment Search;
Free Mail; Free Pages; Gambling; Games; Hate/Discrimination;
Illegal; Jokes; Lingerie; Message/Bulletin Boards;
Murder/Suicide; News; Nudity; Personal Information; Personals;
Pornography; Profanity; Recreation/Entertainment; School Cheating
Information; Search Engines; Search Terms; Sex; Sports; Stocks;
Swimsuits; Tasteless/Gross; Tobacco; Violence; and Weapons. The
"Nudity" category purports to block only "non-pornographic"
images.  The "Sex" category is intended to block only those
depictions of sexual activity that are not intended to arouse.
The "Tasteless/Gross" category includes contents such as
"tasteless humor" and "graphic medical or accident scene photos."
 Additionally, N2H2 offers seven "exception categories."  These
exception categories include Education, Filtered Search Engine,
For Kids, History, Medical, Moderated, and Text/Spoken Only.
When an exception category is enabled, access to any Web site or
page via a URL associated with both a category and an exception,
for example, both "Sex" and "Education," will be allowed, even if
the customer has enabled the product to otherwise block the
category "Sex."  As of November 15, 2001, of those Web sites
categorized by N2H2 as "Sex," 3.6% were also categorized as
"Education," 2.9% as "Medical," and 1.6% as "History."


Websense offers the following categories: Abortion Advocacy;
Advocacy Groups; Adult Material; Business & Economy; Drugs;
Education; Entertainment; Gambling; Games; Government; Health;
Illegal/Questionable; Information Technology; Internet
Communication; Job Search; Militancy/Extremist; News & Media;
Productivity Management; Bandwidth Management; Racism/Hate;
Religion; Shopping; Society & Lifestyle; Special Events; Sports;
Tasteless; Travel; Vehicles; Violence; and Weapons.  The "Adult"
category includes "full or partial nudity of individuals," as
well as sites offering "light adult humor and literature" and
"[s]exually explicit language."  The "Sexuality/Pornography"
category includes, inter alia, "hard-core adult humor and
literature" and "[s]exually explicit language."  The "Tasteless"
category includes "hard-to-stomach sites, including offensive,
worthless or useless sites, grotesque or lurid depictions of
bodily harm."  The "Hacking" category blocks "sites providing
information on or promoting illegal or questionable access to or
use of communications equipment and/or software."
SmartFilter offers the following categories:
Anonymizers/Translators; Art & Culture; Chat; Criminal Skills;
Cults/Occult; Dating; Drugs; Entertainment;
Extreme/Obscene/Violence; Gambling; Games; General News; Hate
Speech; Humor; Investing; Job Search; Lifestyle; Mature; MP3
Sites; Nudity; On-line Sales; Personal Pages; Politics, Opinion &
Religion; Portal Sites; Self-Help/Health; Sex; Sports; Travel;
Usenet News; and Webmail.
Most importantly, no category definition used by filtering
software companies is identical to CIPA's definitions of visual
depictions that are obscene, child pornography, or harmful to
minors.  And category definitions and categorization decisions
are made without reference to local community standards.
Moreover, there is no judicial involvement in the creation of
filtering software companies' category definitions and no
judicial determination is made before these companies categorize
a Web page or site.


Each filtering software company associates each URL in its
control list with a "tag" or other identifier that indicates the
company's evaluation of whether the content or features of the
Web site or page accessed via that URL meets one or more of its
category definitions.  If a user attempts to access a Web site or
page that is blocked by the filter, the user is immediately
presented with a screen that indicates that a block has occurred
as a result of the operation of the filtering software.  These
"denial screens" appear only at the point that a user attempts to
access a site or page in an enabled category.
All four of the filtering programs on which evidence was
presented allow users to customize the category lists that exist
on their own PCs or servers by adding or removing specific URLs.
 For example, if a public librarian charged with administering a
library's Internet terminals comes across a Web site that he or
she finds objectionable that is not blocked by the filtering
program that his or her library is using, then the librarian may
add that URL to a category list that exists only on the library's
network, and it would thereafter be blocked under that category.
 Similarly, a customer may remove individual URLs from category
lists.  Importantly, however, no one but the filtering companies
has access to the complete list of URLs in any category.  The
actual URLs or IP addresses of the Web sites or pages contained
in filtering software vendors' category lists are considered to
be proprietary information, and are unavailable for review by
customers or the general public, including the proprietors of Web
sites that are blocked by filtering software.


Filtering software companies do not generally notify the
proprietors of Web sites when they block their sites.  The only
way to discover which URLs are blocked and which are not blocked
by any particular filtering company is by testing individual URLs
with filtering software, or by entering URLs one by one into the
"URL checker" that most filtering software companies provide on
their Web sites.  Filtering software companies will entertain
requests for recategorization from proprietors of Web sites that
discover their sites are blocked.  Because new pages are
constantly being added to the Web, filtering companies provide
their customers with periodic updates of category lists.  Once a
particular Web page or site is categorized, however, filtering
companies generally do not re-review the contents of that page or
site unless they receive a request to do so, even though the
content on individual Web pages and sites changes frequently.
2.        The Methods that Filtering Companies Use to
Compile Category Lists


While the way in which filtering programs operate is
conceptually straightforward – by comparing a requested URL to a
previously compiled list of URLs and blocking access to the
content at that URL if it appears on the list – accurately
compiling and categorizing URLs to form the category lists is a
more complex process that is impossible to conduct with any high
degree of accuracy.  The specific methods that filtering software
companies use to compile and categorize control lists are, like
the lists themselves, proprietary information.  We will therefore
set forth only general information on the various types of
methods that all filtering companies deposed in this case use,
and the sources of error that are at once inherent in those
methods and unavoidable given the current architecture of the
Internet and the current state of the art in automated
classification systems.  We base our understanding of these
methods largely on the detailed testimony and expert report of
Dr. Geoffrey Nunberg, which we credit.  The plaintiffs offered,
and the Court qualified, Nunberg as an expert witness on
automated classification systems.
When compiling and categorizing URLs for their category
lists, filtering software companies go through two distinct
phases.  First, they must collect or "harvest" the relevant URLs
from the vast number of sites that exist on the Web.  Second,
they must sort through the URLs they have collected to determine
under which of the company's self-defined categories (if any),
they should be classified.  These tasks necessarily result in a
tradeoff between overblocking (i.e., the blocking of content that
does not meet the category definitions established by CIPA or by
the filtering software companies), and underblocking (i.e.,
leaving off of a control list a URL that contains content that
would meet the category definitions defined by CIPA or the
filtering software companies).
1.        The "Harvesting" Phase


Filtering software companies, given their limited resources,
do not attempt to index or classify all of the billions of pages
that exist on the Web.  Instead, the set of pages that they
attempt to examine and classify is restricted to a small portion
of the Web.  The companies use a variety of automated and manual
methods to identify a universe of Web sites and pages to
"harvest" for classification.  These methods include: entering
certain key words into search engines; following links from a
variety of online directories (e.g., generalized directories like
Yahoo or various specialized directories, such as those that
provide links to sexually explicit content); reviewing lists of
newly-registered domain names; buying or licensing lists of URLs
from third parties; "mining" access logs maintained by their
customers; and reviewing other submissions from customers and the
public.  The goal of each of these methods is to identify as many
URLs as possible that are likely to contain content that falls
within the filtering companies' category definitions.


The first method, entering certain keywords into commercial
search engines, suffers from several limitations.  First, the Web
pages that may be "harvested" through this method are limited to
those pages that search engines have already identified.
However, as noted above, a substantial portion of the Web is not
even theoretically indexable (because it is not linked to by any
previously known page), and only approximately 50% of the pages
that are theoretically indexable have actually been indexed by
search engines.  We are satisfied that the remainder of the
indexable Web, and the vast "Deep Web," which cannot currently be
indexed, includes materials that meet CIPA's categories of visual
depictions that are obscene, child pornography, and harmful to
minors.  These portions of the Web cannot presently be harvested
through the methods that filtering software companies use (except
through reporting by customers or by observing users' log files),
because they are not linked to other known pages.  A user can,
however, gain access to a Web site in the unindexed Web or the
Deep Web if the Web site's proprietor or some other third party
informs the user of the site's URL.  Some Web sites, for example,
send out mass email advertisements containing the site's URL, the
spamming process we have described above.
Second, the search engines that software companies use for
harvesting are able to search text only, not images.  This is of
critical importance, because CIPA, by its own terms, covers only
"visual depictions."  20 U.S.C. Sec. 9134(f)(1)(A)(i); 47 U.S.C. Sec.
254(h)(5)(B)(i).  Image recognition technology is immature,
ineffective, and unlikely to improve substantially in the near
future.  None of the filtering software companies deposed in this
case employs image recognition technology when harvesting or
categorizing URLs.  Due to the reliance on automated text
analysis and the absence of image recognition technology, a Web
page with sexually explicit images and no text cannot be
harvested using a search engine.  This problem is complicated by
the fact that Web site publishers may use image files rather than
text to represent words, i.e., they may use a file that computers
understand to be a picture, like a photograph of a printed word,
rather than regular text, making automated review of their
textual content impossible.  For example, if the Playboy Web site
displays its name using a logo rather than regular text, a search
engine would not see or recognize the Playboy name in that logo.



In addition to collecting URLs through search engines and
Web directories (particularly those specializing in sexually
explicit sites or other categories relevant to one of the
filtering companies' category definitions), and by mining user
logs and collecting URLs submitted by users, the filtering
companies expand their list of harvested URLs by using
"spidering" software that can "crawl" the lists of pages produced
by the previous four methods, following their links downward to
bring back the pages to which they link (and the pages to which
those pages link, and so on, but usually down only a few levels).
 This spidering software uses the same type of technology that
commercial Web search engines use.
While useful in expanding the number of relevant URLs, the
ability to retrieve additional pages through this approach is
limited by the architectural feature of the Web that page-to-page
links tend to converge rather than diverge.  That means that the
more pages from which one spiders downward through links, the
smaller the proportion of new sites one will uncover; if
spidering the links of 1000 sites retrieved through a search
engine or Web directory turns up 500 additional distinct adult
sites, spidering an additional 1000 sites may turn up, for
example, only 250 additional distinct sites, and the proportion
of new sites uncovered will continue to diminish as more pages
are spidered.
These limitations on the technology used to harvest a set of
URLs for review will necessarily lead to substantial
underblocking of material with respect to both the category
definitions employed by filtering software companies and CIPA's
definitions of visual depictions that are obscene, child
pornography, or harmful to minors.
2.        The "Winnowing" or Categorization Phase


Once the URLs have been harvested, some filtering software
companies use automated key word analysis tools to evaluate the
content and/or features of Web sites or pages accessed via a
particular URL and to tentatively prioritize or categorize them.
 This process may be characterized as "winnowing" the harvested
URLs.  Automated systems currently used by filtering software
vendors to prioritize, and to categorize or tentatively
categorize the content and/or features of a Web site or page
accessed via a particular URL operate by means of (1) simple key
word searching, and (2) the use of statistical algorithms that
rely on the frequency and structure of various linguistic
features in a Web page's text.  The automated systems used to
categorize pages do not include image recognition technology.
All of the filtering companies deposed in the case also employ
human review of some or all collected Web pages at some point
during the process of categorizing Web pages.  As with the
harvesting process, each technique employed in the winnowing
process is subject to limitations that can result in both
overblocking and underblocking.


First, simple key-word-based filters are subject to the
obvious limitation that no string of words can identify all sites
that contain sexually explicit content, and most strings of words
are likely to appear in Web sites that are not properly
classified as containing sexually explicit content.  As noted
above, filtering software companies also use more sophisticated
automated classification systems for the statistical
classification of texts.  These systems assign weights to words
or other textual features and use algorithms to determine whether
a text belongs to a certain category.  These algorithms sometimes
make reference to the position of a word within a text or its
relative proximity to other words.  The weights are usually
determined by machine learning methods (often described as
"artificial intelligence").  In this procedure, which resembles
an automated form of trial and error, a system is given a
"training set" consisting of documents preclassified into two or
more groups, along with a set of features that might be
potentially useful in classifying the sets.  The system then
"learns" rules that assign weights to those features according to
how well they work in classification, and assigns each new
document to a category with a certain probability.
Notwithstanding their "artificial intelligence" description,
automated text classification systems are unable to grasp many
distinctions between types of content that would be obvious to a
human.  And of critical importance, no presently conceivable
technology can make the judgments necessary to determine whether
a visual depiction fits the legal definitions of obscenity, child
pornography, or harmful to minors.
Finally, all the filtering software companies deposed in
this case use some form of human review in their process of
winnowing and categorizing Web pages, although one company
admitted to categorizing some Web pages without any human review.
 SmartFilter states that "the final categorization of every Web
site is done by a human reviewer."  Another filtering company
asserts that of the 10,000 to 30,000 Web pages that enter the
"work queue" to be categorized each day, two to three percent of
those are automatically categorized by their PornByRef system
(which only applies to materials classified in the pornography
category), and the remainder are categorized by human review.
SurfControl also states that no URL is ever added to its database
without human review.


Human review of Web pages has the advantage of allowing more
nuanced, if not more accurate, interpretations than automated
classification systems are capable of making, but suffers from
its own sources of error.  The filtering software companies
involved here have limited staff, of between eight and a few
dozen people, available for hand reviewing Web pages.  The
reviewers that are employed by these companies base their
categorization decisions on both the text and the visual
depictions that appear on the sites or pages they are assigned to
review.  Human reviewers generally focus on English language Web
sites, and are generally not required to be multi-lingual.
Given the speed at which human reviewers must work to keep
up with even a fraction of the approximately 1.5 million pages
added to the publicly indexable Web each day, human error is
inevitable.  Errors are likely to result from boredom or lack of
attentiveness, overzealousness, or a desire to "err on the side
of caution" by screening out material that might be offensive to
some customers, even if it does not fit within any of the
company's category definitions.  None of the filtering companies
trains its reviewers in the legal definitions concerning what is
obscene, child pornography, or harmful to minors, and none
instructs reviewers to take community standards into account when
making categorization decisions.


Perhaps because of limitations on the number of human
reviewers and because of the large number of new pages that are
added to the Web every day, filtering companies also widely
engage in the practice of categorizing entire Web sites at the
"root URL," rather than engaging in a more fine-grained analysis
of the individual pages within a Web site.  For example, the
filtering software companies deposed in this case all categorize
the entire Playboy Web site as Adult, Sexually Explicit, or
Pornography.  They do not differentiate between pages within the
site containing sexually explicit images or text, and for
example, pages containing no sexually explicit content, such as
the text of interviews of celebrities or politicians.  If the
"root" or "top-level" URL of a Web site is given a category tag,
then access to all content on that Web site will be blocked if
the assigned category is enabled by a customer.
In some cases, whole Web sites are blocked because the
filtering companies focus only on the content of the home page
that is accessed by entering the root URL.  Entire Web sites
containing multiple Web pages are commonly categorized without
human review of each individual page on that site.  Web sites
that may contain multiple Web pages and that require
authentication or payment for access are commonly categorized
based solely on a human reviewer's evaluation of the pages that
may be viewed prior to reaching the authentication or payment
page.


Because there may be hundreds or thousands of pages under a
root URL, filtering companies make it their primary mission to
categorize the root URL, and categorize subsidiary pages if the
need arises or if there is time.  This form of overblocking is
called "inheritance," because lower-level pages inherit the
categorization of the root URL without regard to their specific
content.  In some cases, "reverse inheritance" also occurs, i.e.,
parent sites inherit the classification of pages in a lower level
of the site.  This might happen when pages with sexual content
appear in a Web site that is devoted primarily to non-sexual
content.  For example, N2H2's Bess filtering product classifies
every page in the Salon.com Web site, which contains a wide range
of news and cultural commentary, as "Sex, Profanity," based on
the fact that the site includes a regular column that deals with
sexual issues.
Blocking by both domain name and IP address is another
practice in which filtering companies engage that is a function
both of the architecture of the Web and of the exigencies of
dealing with the rapidly expanding number of Web pages.  The
category lists maintained by filtering software companies can
include URLs in either their human-readable domain name address
form, their numeric IP address form, or both.  Through "virtual
hosting" services, hundreds of thousands of Web sites with
distinct domain names may share a single numeric IP address.  To
the extent that filtering companies block the IP addresses of
virtual hosting services, they will necessarily block a
substantial amount of content without reviewing it, and will
likely overblock a substantial amount of content.


Another technique that filtering companies use in order to
deal with a structural feature of the Internet is blocking the
root level URLs of so-called "loophole" Web sites.  These are Web
sites that provide access to a particular Web page, but display
in the user's browser a URL that is different from the URL with
which the particular page is usually associated.  Because of this
feature, they provide a "loophole" that can be used to get around
filtering software, i.e., they display a URL that is different
from the one that appears on the filtering company's control
list.  "Loophole" Web sites include caches of Web pages that have
been removed from their original location, "anonymizer" sites,
and translation sites.
Caches are archived copies that some search engines, such as
Google, keep of the Web pages they index.  The cached copy stored
by Google will have a URL that is different from the original
URL.  Because Web sites often change rapidly, caches are the only
way to access pages that have been taken down, revised, or have
changed their URLs for some reason.  For example, a magazine
might place its current stories under a given URL, and replace
them monthly with new stories.  If a user wanted to find an
article published six months ago, he or she would be unable to
access it if not for Google's cached version.


Some sites on the Web serve as a proxy or intermediary
between a user and another Web page.  When using a proxy server,
a user does not access the page from its original URL, but rather
from the URL of the proxy server.  One type of proxy service is
an "anonymizer."  Users may access Web sites indirectly via an
anonymizer when they do not want the Web site they are visiting
to be able to determine the IP address from which they are
accessing the site, or to leave "cookies" on their browser.
Some proxy servers can be used to attempt to translate Web page
content from one language to another.  Rather than directly
accessing the original Web page in its original language, users
can instead indirectly access the page via a proxy server
offering translation features.
As noted above, filtering companies often block loophole
sites, such as caches, anonymizers, and translation sites.  The
practice of blocking loophole sites necessarily results in a
significant amount of overblocking, because the vast majority of
the pages that are cached, for example, do not contain content
that would match a filtering company's category definitions.
Filters that do not block these loophole sites, however, may
enable users to access any URL on the Web via the loophole site,
thus resulting in substantial underblocking.
3.        The Process for "Re-Reviewing" Web Pages
After Their Initial Categorization
Most filtering software companies do not engage in
subsequent reviews of categorized sites or pages on a scheduled
basis.  Priority is placed on reviewing and categorizing new
sites and pages, rather than on re-reviewing already categorized
sites and pages.  Typically, a filtering software vendor's
previous categorization of a Web site is not re-reviewed for
accuracy when new pages are added to the Web site.  To the extent
the Web site was previously categorized as a whole, the new pages
added to the site usually share the categorization assigned by
the blocking product vendor.  This necessarily results in both
over- and underblocking, because, as noted above, the content of
Web pages and Web sites changes relatively rapidly.


In addition to the content on Web sites or pages changing
rapidly, Web sites themselves may disappear and be replaced by
sites with entirely different content.  If an IP address
associated with a particular Web site is blocked under a
particular category and the Web site goes out of existence, then
the IP address likely would be reassigned to a different Web
site, either by an Internet service provider or by a registration
organization, such as the American Registry for Internet Numbers,
see http://www.arin.net.  In that case, the site that received
the reassigned IP address would likely be miscategorized.
Because filtering companies do not engage in systematic re-review
of their category lists, such a site would likely remain
miscategorized unless someone submitted it to the filtering
company for re-review, increasing the incidence of over- and
underblocking.
This failure to re-review Web pages primarily increases a
filtering company's rate of overblocking.  However, if a
filtering company does not re-review Web pages after it
determines that they do not fall into any of its blocking
categories, then that would result in underblocking (because, for
example, a page might add sexually explicit content).
3.        The Inherent Tradeoff Between Overblocking and
Underblocking


There is an inherent tradeoff between any filter's rate of
overblocking (which information scientists also call "precision")
and its rate of underblocking (which is also referred to as
"recall").  The rate of overblocking or precision is measured by
the proportion of the things a classification system assigns to a
certain category that are appropriately classified.  The
plaintiffs' expert, Dr. Nunberg, provided the hypothetical
example of a classification system that is asked to pick out
pictures of dogs from a database consisting of 1000 pictures of
animals, of which 80 were actually dogs.  If it returned 100
hits, of which 80 were in fact pictures of dogs, and the
remaining 20 were pictures of cats, horses, and deer, we would
say that the system identified dog pictures with a precision of
80%.  This would be analogous to a filter that overblocked at a
rate of 20%.
The recall measure involves determining what proportion of
the actual members of a category the classification system has
been able to identify.  For example, if the hypothetical animal-
picture database contained a total of 200 pictures of dogs, and
the system identified 80 of them and failed to identify 120, it
would have performed with a recall of 40%.  This would be
analogous to a filter that underblocked 60% of the material in a
category.
In automated classification systems, there is always a
tradeoff between precision and recall.  In the animal-picture
example, the recall could be improved by using a looser set of
criteria to identify the dog pictures in the set, such as any
animal with four legs, and all the dogs would be identified, but
cats and other animals would also be included, with a resulting
loss of precision.  The same tradeoff exists between rates of
overblocking and underblocking in filtering systems that use
automated classification systems.  For example, an automated
system that classifies any Web page that contains the word "sex"
as sexually explicit will underblock much less, but overblock
much more, than a system that classifies any Web page containing
the phrase "free pictures of people having sex" as sexually
explicit.


This tradeoff between overblocking and underblocking also
applies not just to automated classification systems, but also to
filters that use only human review.  Given the approximately two
billion pages that exist on the Web, the 1.5 million new pages
that are added daily, and the rate at which content on existing
pages changes, if a filtering company blocks only those Web pages
that have been reviewed by humans, it will be impossible, as a
practical matter, to avoid vast amounts of underblocking.
Techniques used by human reviewers such as blocking at the IP
address level, domain name level, or directory level reduce the
rates of underblocking, but necessarily increase the rates of
overblocking, as discussed above.
To use a simple example, it would be easy to design a filter
intended to block sexually explicit speech that completely avoids
overblocking.  Such a filter would have only a single sexually
explicit Web site on its control list, which could be re-reviewed
daily to ensure that its content does not change.  While there
would be no overblocking problem with such a filter, such a
filter would have a severe underblocking problem, as it would
fail to block all the sexually explicit speech on the Web other
than the one site on its control list.  Similarly, it would also
be easy to design a filter intended to block sexually explicit
speech that completely avoids underblocking.  Such a filter would
operate by permitting users to view only a single Web site, e.g.,
the Sesame Street Web site.  While there would be no
underblocking problem with such a filter, it would have a severe
overblocking problem, as it would block access to millions of
non-sexually explicit sites on the Web other than the Sesame
Street site.


While it is thus quite simple to design a filter that does
not overblock, and equally simple to design a filter that does
not underblock, it is currently impossible, given the Internet's
size, rate of growth, rate of change, and architecture, and given
the state of the art of automated classification systems, to
develop a filter that neither underblocks nor overblocks a
substantial amount of speech.  The more effective a filter is at
blocking Web sites in a given category, the more the filter will
necessarily overblock.  Any filter that is reasonably effective
in preventing users from accessing sexually explicit content on
the Web will necessarily block substantial amounts of non-
sexually explicit speech.
4.        Attempts to Quantify Filtering Programs' Rates
of Over- and Underblocking
The government presented three studies, two from expert
witnesses, and one from a librarian fact witness who conducted a
study using Internet use logs from his own library, that attempt
to quantify the over- and underblocking rates of five different
filtering programs.  The plaintiffs presented one expert witness
who attempted to quantify the rates of over- and underblocking
for various programs.  Each of these attempts to quantify rates
of over- and underblocking suffers from various methodological
flaws.


The fundamental problem with calculating over- and
underblocking rates is selecting a universe of Web sites or Web
pages to serve as the set to be tested.  The studies that the
parties submitted in this case took two different approaches to
this problem.  Two of the studies, one prepared by the
plaintiffs' expert witness Chris Hunter, a graduate student at
the University of Pennsylvania, and the other prepared by the
defendants' expert, Chris Lemmons of eTesting Laboratories, in
Research Triangle Park, North Carolina, approached this problem
by compiling two separate lists of Web sites, one of URLs that
they deemed should be blocked according to the filters' criteria,
and another of URLs that they deemed should not be blocked
according to the filters' criteria.  They compiled these lists by
choosing Web sites from the results of certain key word
searches.   The problem with this selection method is that it is
neither random, nor does it necessarily approximate the universe
of Web pages that library patrons visit.


The two other studies, one by David Biek, head librarian at
the Tacoma Public Library's main branch, and one by Cory Finnell
of Certus Consulting Group, of Seattle, Washington, chose actual
logs of Web pages visited by library patrons during specific time
periods as the universe of Web pages to analyze.  This method,
while surely not as accurate as a truly random sample of the
indexed Web would be (assuming it would be possible to take such
a sample), has the virtue of using the actual Web sites that
library patrons visited during a specific period.  Because
library patrons selected the universe of Web sites that Biek and
Finnell's studies analyzed, this removes the possibility of bias
resulting from the study author's selection of the universe of
sites to be reviewed.  We find that the Lemmons and Hunter
studies are of little probative value because of the methodology
used to select the sample universe of Web sites to be tested.  We
will therefore focus on the studies conducted by Finnell and Biek
in trying to ascertain estimates of the rates of over- and
underblocking that takes place when filters are used in public
libraries.
The government hired expert witness Cory Finnell to study
the Internet logs compiled by the public libraries systems in
Tacoma, Washington; Westerville, Ohio; and Greenville, South
Carolina.  Each of these libraries uses filtering software that
keeps a log of information about individual Web site requests
made by library patrons.  Finnell, whose consulting firm
specializes in data analysis, has substantial experience
evaluating Internet access logs generated on networked systems.
He spent more than a year developing a reporting tool for N2H2,
and, in the course of that work, acquired a familiarity with the
design and operation of Internet filtering products.


The Tacoma library uses Cyber Patrol filtering software, and
logs information only on sites that were blocked.  Finnell worked
from a list of all sites that were blocked in the Tacoma public
library in the month of August 2001.  The Westerville library
uses the Websense filtering product, and logs information on both
blocked sites and non-blocked sites.  When the logs reach a
certain size, they are overwritten by new usage logs.  Because of
this overwriting feature, logs were available to Finnell only for
the relatively short period from October 1, 2001 to October 3,
2001.  The Greenville library uses N2H2's filtering product and
logs both blocked sites and sites that patrons accessed.  The
logs contain more than 500,000 records per day.  Because of the
volume of the records, Finnell restricted his analysis to the
period from August 2, 2001 to August 15, 2001.


Finnell calculated an overblocking rate for each of the
three libraries by examining the host Web site containing each of
the blocked pages.  He did not employ a sampling technique, but
instead examined each blocked Web site.  If the contents of a
host Web site or the pages within the Web site were consistent
with the filtering product's definition of the category under
which the site was blocked, Finnell considered it to be an
accurate block.  Finnell and three others, two of whom were
temporary employees, examined the Web sites to determine whether
they were consistent with the filtering companies' category
definitions.  Their review was, of course, necessarily limited
by: (1) the clarity of the filtering companies' category
definitions; (2) Finnell's and his employees' interpretations of
the definitions; and (3) human error.  The study's reliability is
also undercut by the fact that Finnell failed to archive the
blocked Web pages as they existed either at the point that a
patron in one of the three libraries was denied access or when
Finnell and his team reviewed the pages.  It is therefore
impossible for anyone to check the accuracy and consistency of
Finnell's review team, or to know whether the pages contained the
same content when the block occurred as they did when Finnell's
team reviewed them.  This is a key flaw, because the results of
the study depend on individual determinations as to overblocking
and underblocking, in which Finnell and his team were required to
compare what they saw on the Web pages that they reviewed with
standard definitions provided by the filtering company.


Tacoma library's Cyber Patrol software blocked 836 unique
Web sites during the month of August.  Finnell determined that
783 of those blocks were accurate and that 53 were inaccurate.
 The error rate for Cyber Patrol was therefore estimated to be
6.34%, and the true error rate was estimated with 95% confidence
to lie within the range of 4.69% to 7.99%.   Finnell and his
team reviewed 185 unique Web sites that were blocked by
Westerville Library's Websense filter during the logged period
and determined that 158 of them were accurate and that 27 of them
were inaccurate.  He therefore estimated the Websense filter's
overblocking rate at 14.59% with a 95% confidence interval of
9.51% to 19.68%.  Additionally, Finnell examined 1,674 unique Web
sites that were blocked by the Greenville Library's N2H2 filter
during the relevant period and determined that 1,520 were
accurate and that 87 were inaccurate.  This yields an estimated
overblocking rate of 5.41% and a 95% confidence interval of 4.33%
to 6.55%.
Finnell's methodology was materially flawed in that it
understates the rate of overblocking for the following reasons.
First, patrons from the three libraries knew that the filters
were operating, and may have been deterred from attempting to
access Web sites that they perceived to be "borderline" sites,
i.e., those that may or may not have been appropriately filtered
according to the filtering companies' category definitions.
Second, in their cross-examination of Finnell, the plaintiffs
offered screen shots of a number of Web sites that, according to
Finnell, had been appropriately blocked, but that Finnell
admitted contained only benign materials.  Finnell's explanation
was that the Web sites must have changed between the time when he
conducted the study and the time of the trial, but because he did
not archive the images as they existed when his team reviewed
them for the study, there is no way to verify this.  Third,
because of the way in which Finnell counted blocked Web sites –
i.e., if separate patrons attempted to reach the same Web site,
or one or more patrons attempted to access more than one page on
a single Web site, Finnell counted these attempts as a single
block, see supra note 10 – his results necessarily understate the
number of times that patrons were erroneously denied access to
information.


At all events, there is no doubt that Finnell's estimated
rates of overblocking, which are based on the filtering
companies' own category definitions, significantly understate the
rate of overblocking with respect to CIPA's category definitions
for filtering for adults.  The filters used in the Tacoma,
Westerville, and Greenville libraries were configured to block,
among other things, images of full nudity and sexually explicit
materials.  There is no dispute, however, that these categories
are far broader than CIPA's categories of visual depictions that
are obscene, or child pornography, the two categories of material
that libraries subject to CIPA must certify that they filter
during adults' use of the Internet.
Finnell's study also calculated underblocking rates with
respect to the Westerville and Greenville Libraries (both of
which logged not only their blocked sites, but all sites visited
by their patrons), by taking random samples of URLs from the list
of sites that were not blocked.  The study used a sample of 159
sites that were accessed by Westerville patrons and determined
that only one of them should have been blocked under the
software's category definitions, yielding an underblocking rate
of 0.6%.  Given the size of the sample, the 95% confidence
interval is 0% to 1.86%.  The study examined a sample of 254 Web
sites accessed by patrons in Greenville and found that three of
them should have been blocked under the filtering software's
category definitions.  This results in an estimated underblocking
rate of 1.2% with a 95% confidence interval ranging from 0% to
2.51%.


We do not credit Finnell's estimates of the rates of
underblocking in the Westerville and Greenville public libraries
for several reasons.  First, Finnell's estimates likely
understate the actual rate of underblocking because patrons, who
knew that filtering programs were operating in the Greenville and
Westerville Libraries, may have refrained from attempting to
access sites with sexually explicit materials, or other contents
that they knew would probably meet a filtering program's blocked
categories.  Second, and most importantly, we think that the
formula that Finnell used to calculate the rate of underblocking
in these two libraries is not as meaningful as the formula that
information scientists typically use to calculate a rate of
recall, which we describe above in Subsection II.E.3.  As Dr.
Nunberg explained, the standard method that information
scientists use to calculate a rate of recall is to sort a set of
items into two groups, those that fall into a particular category
(e.g., those that should have been blocked by a filter) and those
that do not.  The rate of recall is then calculated by dividing
the number of items that the system correctly identified as
belonging to the category by the total number of items in the
category.


In the example above, we discussed a database that contained
1000 photographs.  Assume that 200 of these photographs were
pictures of dogs.  If, for example, a classification system
designed to identify pictures of dogs identified 80 of the dog
pictures and failed to identify 120, it would have performed with
a recall rate of 40%.  This would be analogous to a filter that
underblocked at a rate of 60%.  To calculate the recall rate of
the filters in the Westerville and Greenville public libraries in
accordance with the standard method described above, Finnell
should have taken a sample of sites from the libraries' Internet
use logs (including both sites that were blocked and sites that
were not), and divided the number of sites in the sample that the
filter incorrectly failed to block by the total number of sites
in the sample that should have been blocked.  What Finnell did
instead was to take a sample of sites that were not blocked, and
divide the total number of sites in this sample by the number of
sites in the sample that should have been blocked.  This made the
denominator that Finnell used much larger than it would have been
had he used the standard method for calculating recall,
consequently making the underblocking rate that he calculated
much lower than it would have been under the standard method.


Moreover, despite the relatively low rates of underblocking
that Finnell's study found, librarians from several of the
libraries proffered by defendants that use blocking products,
including Greenville, Tacoma, and Westerville, testified that
there are instances of underblocking in their libraries.  No
quantitative evidence was presented comparing the effectiveness
of filters and other alternative methods used by libraries to
prevent patrons from accessing visual depictions that are
obscene, child pornography, or in the case of minors, harmful to
minors.
Biek undertook a similar study of the overblocking rates
that result from the Tacoma Library's use of the Cyber Patrol
software.  He began with the 3,733 individual blocks that
occurred in the Tacoma Library in October 2000 and drew from this
data set a random sample of 786 URLs.  He calculated two rates of
overblocking, one with respect to the Tacoma Library's policy on
Internet use – that the pictorial content of the site may not
include "graphic materials depicting full nudity and sexual acts
which are portrayed obviously and exclusively for sensational or
pornographic purposes" – and the other with respect to Cyber
Patrol's own category definitions.  He estimated that Cyber
Patrol overblocked 4% of all Web pages in October 2000 with
respect to the definitions of the Tacoma Library's Internet
Policy and 2% of all pages with respect to Cyber Patrol's own
category definitions.


It is difficult to determine how reliable Biek's conclusions
are, because he did not keep records of the raw data that he used
in his study; nor did he archive images of the Web pages as they
looked when he made the determination whether they were properly
classified by the Cyber Patrol program.  Without this
information, it is impossible to verify his conclusions (or to
undermine them).  And Biek's study certainly understates Cyber
Patrol's overblocking rate for some of the same reasons that
Finnell's study likely understates the true rates of overblocking
used in the libraries that he studied.
We also note that Finnell's study, which analyzed a set of
Internet logs from the Tacoma Library during which the same
filtering program was operating with the same set of blocking
categories enabled, found a significantly higher rate of
overblocking than the Biek study did.  Biek found a rate of
overblocking of approximately 2% while the Finnell study
estimated a 6.34% rate of overblocking.  At all events, the
category definitions employed by CIPA, at least with respect to
adult use – visual depictions that are obscene or child
pornography – are narrower than the materials prohibited by the
Tacoma Library policy, and therefore Biek's study understates the
rate of overblocking with respect to CIPA's definitions for
adults.
In sum, we think that Finnell's study, while we do not
credit its estimates of underblocking, is useful because it
states lower bounds with respect to the rates of overblocking
that occurred when the Cyber Patrol, Websense, and N2H2 filters
were operating in public libraries.  While these rates are
substantial – between nearly 6% and 15% – we think, for the
reasons stated above, that they greatly understate the actual
rates of overblocking that occurs, and therefore cannot be
considered as anything more than minimum estimates of the rates
of overblocking that happens in all filtering programs.
5.        Methods of Obtaining Examples of Erroneously
Blocked Web Sites


The plaintiffs assembled a list of several thousand Web
sites that they contend were, at the time of the study, likely to
have been erroneously blocked by one or more of four major
commercial filtering programs: SurfControl Cyber Patrol 6.0.1.47,
N2H2 Internet Filtering 2.0, Secure Computing SmartFilter
3.0.0.01, and Websense Enterprise 4.3.0.  They compiled this list
using a two-step process.  First, Benjamin Edelman, an expert
witness who testified before us, compiled a list of more than
500,000 URLs and devised a program to feed them through all four
filtering programs in order to compile a list of URLs that might
have been erroneously blocked by one or more of the programs.
 Second, Edelman forwarded subsets of the list that he compiled
to librarians and professors of library science whom the
plaintiffs had hired to review the blocked sites for suitability
in the public library context.
Edelman assembled the list of URLs by compiling Web pages
that were blocked by the following categories in the four
programs: Cyber Patrol: Adult/Sexually Explicit; N2H2: Adults
Only, Nudity, Pornography, and Sex, with "exceptions" engaged in
the categories of Education, For Kids, History, Medical,
Moderated, and Text/Spoken Only; SmartFilter: Sex, Nudity,
Mature, and Extreme; Websense: Adult Content, Nudity, and Sex.


Edelman then assembled a database of Web sites for possible
testing.  He derived this list by automatically compiling URLs
from the Yahoo index of Web sites, taking them from categories
from the Yahoo index that differed significantly from the
classifications that he had enabled in each of the blocking
programs (taking, for example, Web sites from Yahoo's
"Government" category).  He then expanded this list by entering
URLs taken from the Yahoo index into the Google search engine's
"related" search function, which provides the user with a list of
similar sites.  Edelman also included and excluded specific Web
sites at the request of the plaintiffs' counsel.


Taking the list of more than 500,000 URLs that he had
compiled, Edelman used an automated system that he had developed
to test whether particular URLs were blocked by each of the four
filtering programs.  This testing took place between February and
October 2001.  He recorded the specific dates on which particular
sites were blocked by particular programs, and, using commercial
archiving software, archived the contents of the home page of the
blocked Web sites (and in some instances the pages linked to from
the home page) as it existed when it was blocked.   Through this
process, Edelman, whose testimony we credit, compiled a list of
6,777 URLs that were blocked by one or more of the four programs.
 Because these sites were chosen from categories from the Yahoo
directory that were unrelated to the filtering categories that
were enabled during the test (i.e., "Government" vs. "Nudity"),
he reasoned that they were likely erroneously blocked.  As
explained in the margin, Edelman repeated his testing and
discovered that Cyber Patrol had unblocked most of the pages on
the list of 6,777 after he had published the list on his Web
site.  His records indicate that an employee of SurfControl (the
company that produces Cyber Patrol software) accessed his site
and presumably checked out the URLs on the list, thus confirming
Edelman's judgment that the majority of URLs on the list were
erroneously blocked.
Edelman forwarded the list of blocked sites to Dr. Joseph
Janes, an Assistant Professor in the Information School of the
University of Washington who also testified at trial as an expert
witness.  Janes reviewed the sites that Edelman compiled to
determine whether they are consistent with library collection
development, i.e., whether they are sites to which a reference
librarian would, consistent with professional standards, direct a
patron as a source of information.



Edelman forwarded Janes a list of 6,775 Web sites, almost
the entire list of blocked sites that he collected, from which
Janes took a random sample of 859 using the SPSS statistical
software package.  Janes indicated that he chose a sample size of
859 because it would yield a 95% confidence interval of plus or
minus 2.5%.  Janes recruited a group of 16 reviewers, most of
whom were current or former students at the University of
Washington's Information School, to help him identify which sites
were appropriate for library use.  We describe the process that
he used in the margin.   Due to the inability of a member of
Janes's review team to complete the reviewing process, Janes had
to cut 157 Web sites out of the sample, but because the Web sites
were randomly assigned to reviewers, it is unlikely that these
sites differed significantly from the rest of the sample.  That
left the sample size at 699, which widened the 95% confidence
interval to plus or minus 2.8%.


Of the total 699 sites reviewed, Janes's team concluded that
165 of them, or 23.6% percent of the sample, were not of any
value in the library context (i.e., no librarian would,
consistent with professional standards, refer a patron to these
sites as a source of information).  They were unable to find 60
of the Web sites, or 8.6% of the sample.  Therefore, they
concluded that the remaining 474 Web sites, or 67.8% of the
sample, were examples of overblocking with respect to materials
that are appropriate sources of information in public libraries.
 Applying a 95% confidence interval of plus or minus 2.8%, the
study concluded that we can be 95% confident that the actual
percentage of sites in the list of 6,775 sites that are
appropriate for use in public libraries is somewhere between
65.0% and 70.6%.  In other words, we can be 95% certain that the
actual number of sites out of the 6,775 that Edelman forwarded to
Janes that are appropriate for use in public libraries (under
Janes's standard) is somewhere between 4,403 and 4,783.


The government raised some valid criticisms of Janes's
methodology, attacking in particular the fact that, while sites
that received two "yes" votes in the first round of voting were
determined to be of sufficient interest in a library context to
be removed from further analysis, sites receiving one or two "no"
votes were sent to the next round.  The government also correctly
points out that results of Janes's study can be generalized only
to the population of 6,775 sites that Edelman forwarded to Janes.
 Even taking these criticisms into account, and discounting
Janes's numbers appropriately, we credit Janes's study as
confirming that Edelman's set of 6,775 Web sites contains at
least a few thousand URLs that were erroneously blocked by one or
more of the four filtering programs that he used, whether judged
against CIPA's definitions, the filters' own category criteria,
or against the standard that the Janes study used.  Edelman
tested only 500,000 unique URLs out of the 4000 times that many,
or two billion, that are estimated to exist in the indexable Web.
 Even assuming that Edelman chose the URLs that were most likely
to be erroneously blocked by commercial filtering programs, we
conclude that many times the number of pages that Edelman
identified are erroneously blocked by one or more of the
filtering programs that he tested.
Edelman's and Janes's studies provide numerous specific
examples of Web pages that were erroneously blocked by one or
more filtering programs.  The Web pages that were erroneously
blocked by one or more of the filtering programs do not fall into
any neat patterns; they range widely in subject matter, and it is
difficult to tell why they may have been overblocked.  The list
that Edelman compiled, for example, contains Web pages relating
to religion, politics and government, health, careers, education,
travel, sports, and many other topics.  In the next section, we
provide examples from each of these categories.
6.        Examples of Erroneously Blocked Web Sites


Several of the erroneously blocked Web sites had content
relating to churches, religious orders, religious charities, and
religious fellowship organizations.  These included the following
Web sites: the Knights of Columbus Council 4828, a Catholic men's
group associated with St. Patrick's Church in Fallon, Nevada,
http://msnhomepages.talkcity.com/SpiritSt/kofc4828, which was
blocked by Cyber Patrol in the "Adult/Sexually Explicit"
category; the Agape Church of Searcy, Arkansas,
http://www.agapechurch.com, which was blocked by Websense as
"Adult Content"; the home page of the Lesbian and Gay Havurah of
the Long Beach, California Jewish Community Center,
http://www.compupix.com/gay/havurah.htm, which was blocked by
N2H2 as "Adults Only, Pornography," by Smartfilter as "Sex," and
by Websense as "Sex"; Orphanage Emmanuel, a Christian orphanage
in Honduras that houses 225 children,
http://home8.inet.tele.dk/rfb_viva, which was blocked by Cyber
Patrol in the "Adult/Sexually Explicit" category; Vision Art
Online, which sells wooden wall hangings for the home that
contain prayers, passages from the Bible, and images of the Star
of David, http://www.visionartonline.com, which was blocked in
Websense's "Sex" category; and the home page of Tenzin Palmo, a
Buddhist nun, which contained a description of her project to
build a Buddhist nunnery and international retreat center for
women, http://www.tenzinpalmo.com, which was categorized as
"Nudity" by N2H2.


Several blocked sites also contained information about
governmental entities or specific political candidates, or
contained political commentary.  These included: the Web site for
Kelley Ross, a Libertarian candidate for the California State
Assembly, http://www.friesian.com/ross/ca40, which N2H2 blocked
as "Nudity"; the Web site for Bob Coughlin, a town selectman in
Dedham, Massachusetts, http://www.bobcoughlin.org, which was
blocked under N2H2's "Nudity" category; a list of Web sites
containing information about government and politics in Adams
County, Pennsylvania, http://www.geocities.com/adamscopa, which
was blocked by Websense as "Sex"; the Web site for Wisconsin
Right to Life, http://www.wrtl.org, which N2H2 blocked as
"Nudity"; a Web site that promotes federalism in Uganda,
http://federo.com, which N2H2 blocked as "Adults Only,
Pornography"; "Fight the Death Penalty in the USA," a Danish Web
site dedicated to criticizing the American system of capital
punishment, http://www.fdp.dk, which N2H2 blocked as
"Pornography"; and "Dumb Laws," a humor Web site that makes fun
of outmoded laws, http://www.dumblaws.com, which N2H2 blocked
under its "Sex" category.
Erroneously blocked Web sites relating to health issues
included the following: a guide to allergies, http://www.x-
sitez.com/allergy, which was categorized as "Adults Only,
Pornography" by N2H2; a health question and answer site sponsored
by Columbia University, http://www.goaskalice.com.columbia.edu,
which was blocked as "Sex" by N2H2, and as "Mature" by
Smartfilter; the Western Amputee Support Alliance Home Page,
http://www.usinter.net/wasa, which was blocked by N2H2 as
"Pornography"; the Web site of the Willis-Knighton Cancer Center,
a Shreveport, Louisiana cancer treatment facility,
http://cancerftr.wkmc.com, which was blocked by Websense under
the "Sex" category; and a site dealing with halitosis,
http://www.dreamcastle.com/tungs, which was blocked by N2H2 as
"Adults, Pornography," by Smartfilter as "Sex," by Cyber Patrol
as "Adult/Sexually Explicit," and by Websense as "Adult Content."



The filtering programs also erroneously blocked several Web
sites having to do with education and careers.  The filtering
programs blocked two sites that provide information on home
schooling.  "HomEduStation – the Internet Source for Home
Education," http://www.perigee.net/~mcmullen/homedustation/, was
categorized by Cyber Patrol as "Adult/Sexually Explicit."
Smartfilter blocked "Apricot: A Web site made by and for home
schoolers," http://apricotpie.com, as "Sex."  The programs also
miscategorized several career-related sites.  "Social Work
Search," http://www.socialworksearch.com/, is a directory for
social workers that Cyber Patrol placed in its "Adult/Sexually
Explicit" category.  The "Gay and Lesbian Chamber of Southern
Nevada," http://www.lambdalv.com, "a forum for the business
community to develop relationships within the Las Vegas lesbian,
gay, transsexual, and bisexual community" was blocked by N2H2 as
"Adults Only, Pornography."  A site for aspiring dentists,
http://www.vvm.com/~bond/home.htm, was blocked by Cyber Patrol in
its "Adult/Sexually Explicit" category.
The filtering programs erroneously blocked many travel Web
sites, including: the Web site for the Allen Farmhouse Bed &
Breakfast of Alleghany County, North Carolina, http://planet-
nc.com/Beth/index.html, which Websense blocked as "Adult
Content"; Odysseus Gay Travel, a travel company serving gay men,
http://www.odyusa.com, which N2H2 categorized as "Adults Only,
Pornography"; Southern Alberta Fly Fishing Outfitters,
http://albertaflyfish.com, which N2H2 blocked as "Pornography";
and "Nature and Culture Conscious Travel," a tour operator in
Namibia, http://www.trans-namibia-tours.com, which was
categorized as "Pornography" by N2H2.


The filtering programs also miscategorized a large number of
sports Web sites.  These included: a site devoted to Willie
O'Ree, the first African-American player in the National Hockey
League, http://www.missioncreep.com/mw/oree.html, which Websense
blocked under its "Nudity" category; the home page of the Sydney
University Australian Football Club, http://www.tek.com.au/suafc,
which N2H2 blocked as "Adults Only, Pornography," Smartfilter
blocked as "Sex," Cyber Patrol blocked as "Adult/Sexually
Explicit" and Websense blocked as "Sex"; and a fan's page devoted
to the Toronto Maple Leafs hockey team,
http://www.torontomapleleafs.atmypage.com, which N2H2 blocked
under the "Pornography" category.
7.        Conclusion: The Effectiveness of Filtering
Programs
Public libraries have adopted a variety of means of dealing
with problems created by the provision of Internet access.  The
large amount of sexually explicit speech that is freely available
on the Internet has, to varying degrees, led to patron complaints
about such matters as unsought exposure to offensive material,
incidents of staff and patron harassment by individuals viewing
sexually explicit content on the Internet, and the use of library
computers to access illegal material, such as child pornography.
 In some libraries, youthful library patrons have persistently
attempted to use the Internet to access hardcore pornography.


Those public libraries that have responded to these problems
by using software filters have found such filters to provide a
relatively effective means of preventing patrons from accessing
sexually explicit material on the Internet.  Nonetheless, out of
the entire universe of speech on the Internet falling within the
filtering products' category definitions, the filters will
incorrectly fail to block a substantial amount of speech.  Thus,
software filters have not completely eliminated the problems that
public libraries have sought to address by using the filters, as
evidenced by frequent instances of underblocking.  Nor is there
any quantitative evidence of the relative effectiveness of
filters and the alternatives to filters that are also intended to
prevent patrons from accessing illegal content on the Internet.
Even more importantly (for this case), although software
filters provide a relatively cheap and effective, albeit
imperfect, means for public libraries to prevent patrons from
accessing speech that falls within the filters' category
definitions, we find that commercially available filtering
programs erroneously block a huge amount of speech that is
protected by the First Amendment.  Any currently available
filtering product that is reasonably effective in preventing
users from accessing content within the filter's category
definitions will necessarily block countless thousands of Web
pages, the content of which does not match the filtering
company's category definitions, much less the legal definitions
of obscenity, child pornography, or harmful to minors.  Even
Finnell, an expert witness for the defendants, found that between
6% and 15% of the blocked Web sites in the public libraries that
he analyzed did not contain content that meets even the filtering
products' own definitions of sexually explicit content, let alone
CIPA's definitions.


This phenomenon occurs for a number of reasons explicated in
the more detailed findings of fact supra.  These include
limitations on filtering companies' ability to: (1) harvest Web
pages for review; (2) review and categorize the Web pages that
they have harvested; and (3) engage in regular re-review of the
Web pages that they have previously reviewed.  The primary
limitations on filtering companies' ability to harvest Web pages
for review is that a substantial majority of pages on the Web are
not indexable using the spidering technology that Web search
engines use, and that together, search engines have indexed only
around half of the Web pages that are theoretically indexable.
The fast rate of growth in the number of Web pages also limits
filtering companies' ability to harvest pages for review.  These
shortcomings necessarily result in significant underblocking.
Several limitations on filtering companies' ability to
review and categorize the Web pages that they have harvested also
contribute to over- and underblocking.  First, automated review
processes, even those based on "artificial intelligence," are
unable with any consistency to distinguish accurately material
that falls within a category definition from material that does
not.  Moreover, human review of URLs is hampered by filtering
companies' limited staff sizes, and by human error or
misjudgment.  In order to deal with the vast size of the Web and
its rapid rates of growth and change, filtering companies engage
in several practices that are necessary to reduce underblocking,
but inevitably  result in overblocking.  These include: (1)
blocking whole Web sites even when only a small minority of their
pages contain material that would fit under one of the filtering
company's categories (e.g., blocking the Salon.com site because
it contains a sex column); (2) blocking by IP address (because a
single IP address may contain many different Web sites and many
thousands of pages of heterogenous content); and (3) blocking
loophole sites such as translator sites and cache sites, which
archive Web pages that have been removed from the Web by their
original publisher.


Finally, filtering companies' failure to engage in regular
re-review of Web pages that they have already categorized (or
that they have determined do not fall into any category) results
in a substantial amount of over- and underblocking.  For example,
Web publishers change the contents of Web pages frequently.  The
problem also arises when a Web site goes out of existence and its
domain name or IP address is reassigned to a new Web site
publisher.  In that case, a filtering company's previous
categorization of the IP address or domain name would likely be
incorrect, potentially resulting in the over- or underblocking of
many thousands of pages.
The inaccuracies that result from these limitations of
filtering technology are quite substantial.  At least tens of
thousands of pages of the indexable Web are overblocked by each
of the filtering programs evaluated by experts in this case, even
when considered against the filtering companies' own category
definitions.  Many erroneously blocked pages contain content that
is completely innocuous for both adults and minors, and that no
rational person could conclude matches the filtering companies'
category definitions, such as "pornography" or "sex."


The number of overblocked sites is of course much higher
with respect to the definitions of obscenity and child
pornography that CIPA employs for adults, since the filtering
products' category definitions, such as "sex" and "nudity,"
encompass vast amounts of Web pages that are neither child
pornography nor obscene.  Thus, the number of pages of
constitutionally protected speech blocked by filtering products
far exceeds the many thousands of pages that are overblocked by
reference to the filtering products' category definitions.


No presently conceivable technology can make the judgments
necessary to determine whether a visual depiction fits the legal
definitions of obscenity, child pornography, or harmful to
minors.  Given the state of the art in filtering and image
recognition technology, and the rapidly changing and expanding
nature of the Web, we find that filtering products' shortcomings
will not be solved through a technical solution in the
foreseeable future.   In sum, filtering products are currently
unable to block only visual depictions that are obscene, child
pornography, or harmful to minors (or, only content matching a
filtering product's category definitions) while simultaneously
allowing access to all protected speech (or, all content not
matching the blocking product's category definitions).  Any
software filter that is reasonably effective in blocking access
to Web pages that fall within its category definitions will
necessarily erroneously block a substantial number of Web pages
that do not fall within its category definitions.
2.        Analytic Framework for the Opinion: The Centrality of Dole
and the Role of the Facial Challenge

Both the plaintiffs and the government agree that, because
this case involves a challenge to the constitutionality of the
conditions that Congress has set on state actors' receipt of
federal funds, the Supreme Court's decision in South Dakota v.
Dole, 483 U.S. 203 (1987), supplies the proper threshold analytic
framework.  The constitutional source of Congress's spending
power is Article I, Sec. 8, cl. 1, which provides that "Congress
shall have Power . . . to pay the Debts and provide for the
common Defence and general Welfare of the United States."  In
Dole, the Court upheld the constitutionality of a federal statute
requiring the withholding of federal highway funds from any state
with a drinking age below 21.  Id. at 211-12.  In sustaining the
provision's constitutionality, Dole articulated four general
constitutional limitations on Congress's exercise of the spending
power.


First, "the exercise of the spending power must be in
pursuit of 'the general welfare.'"  Id. at 207.  Second, any
conditions that Congress sets on states' receipt of federal funds
must be sufficiently clear to enable recipients "to exercise
their choice knowingly, cognizant of the consequences of their
participation."  Id. (internal quotation marks and citation
omitted).  Third, the conditions on the receipt of federal funds
must bear some relation to the purpose of the funding program.
Id.  And finally, "other constitutional provisions may provide an
independent bar to the conditional grant of federal funds."  Id.
at 208.  In particular, the spending power "may not be used to
induce the States to engage in activities that would themselves
be unconstitutional.  Thus, for example, a grant of federal funds
conditioned on invidiously discriminatory state action or the
infliction of cruel and unusual punishment would be an
illegitimate exercise of the Congress' broad spending power."
Id. at 210.


Plaintiffs do not contend that CIPA runs afoul of the first
three limitations.  However, they do allege that CIPA is
unconstitutional under the fourth prong of Dole because it will
induce public libraries to violate the First Amendment.
Plaintiffs therefore submit that the First Amendment "provide[s]
an independent bar to the conditional grant of federal funds"
created by CIPA.  Id. at 208.  More specifically, they argue that
by conditioning public libraries' receipt of federal funds on the
use of software filters, CIPA will induce public libraries to
violate the First Amendment rights of Internet content-providers
to disseminate constitutionally protected speech to library
patrons via the Internet, and the correlative First Amendment
rights of public library patrons to receive constitutionally
protected speech on the Internet.
The government concedes that under the Dole framework, CIPA
is facially invalid if its conditions will induce public
libraries to violate the First Amendment.  The government and the
plaintiffs disagree, however, on the meaning of Dole's
"inducement" requirement in the context of a First Amendment
facial challenge to the conditions that Congress places on state
actors' receipt of federal funds.  The government contends that
because plaintiffs are bringing a facial challenge, they must
show that under no circumstances is it possible for a public
library to comply with CIPA's conditions without violating the
First Amendment.  The plaintiffs respond that even if it is
possible for some public libraries to comply with CIPA without
violating the First Amendment, CIPA is facially invalid if it
"will result in the impermissible suppression of a substantial
amount of protected speech."


Because it was clear in Dole that the states could comply
with the challenged conditions that Congress attached to the
receipt of federal funds without violating the Constitution, the
Dole Court did not have occasion to explain fully what it means
for Congress to use the spending power to "induce [recipients] to
engage in activities that would themselves be unconstitutional."
 Dole, 483 U.S. at 210; see id. at 211 ("Were South Dakota to
succumb to the blandishments offered by Congress and raise its
drinking age to 21, the State's action in so doing would not
violate the constitutional rights of anyone.").  Although the
proposition that Congress may not pay state actors to violate
citizens' First Amendment  rights is unexceptionable when stated
in the abstract, it is unclear what exactly a litigant must
establish to facially invalidate an exercise of Congress's
spending power on this ground.
In general, it is well-established that a court may sustain
a facial challenge to a statute only if the plaintiff
demonstrates that the statute admits of no constitutional
application.  See United States v. Salerno, 481 U.S. 739, 745
(1987) ("A facial challenge to a legislative Act is, of course,
the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists
under which the Act would be valid."); see also Bowen v.
Kendrick, 487 U.S. 589, 612 (1988) ("It has not been the Court's
practice, in considering facial challenges to statutes of this
kind, to strike them down in anticipation that particular
applications may result in unconstitutional use of funds.")
(internal quotation marks and citation omitted).


First Amendment overbreadth doctrine creates a limited
exception to this rule by permitting facial invalidation of a
statute that burdens a substantial amount of protected speech,
even if the statute may be constitutionally applied in particular
circumstances.  "The Constitution gives significant protection
from overbroad laws that chill speech within the First
Amendment's vast and privileged sphere.  Under this principle, [a
law] is unconstitutional on its face if it prohibits a
substantial amount of protected expression."  Ashcroft v. Free
Speech Coalition, 122 S. Ct. 1389, 1399 (2002); see also
Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).  This more
liberal test of a statute's facial validity under the First
Amendment stems from the recognition that where a statute's reach
contemplates a number of both constitutional and unconstitutional
applications, the law's sanctions may deter individuals from
challenging the law's validity by engaging in constitutionally
protected speech that may nonetheless be proscribed by the law.
Without an overbreadth doctrine, "the contours of regulation
would have to be hammered out case by case – and tested only by
those hardy enough to risk criminal prosecution to determine the
proper scope of regulation."  Dombrowski v. Pfister, 380 U.S.
479, 487 (1965); see also Brockett v. Spokane Arcades, Inc., 472
U.S. 491, 503 (1985) ("[A]n individual whose own speech or
expressive conduct may validly be prohibited or sanctioned is
permitted to challenge a statute on its face because it also
threatens others not before the court – those who desire to
engage in legally protected expression but who may refrain from
doing so rather than risk prosecution or undertake to have the
law declared partially invalid.").


Plaintiffs argue that the overbreadth doctrine is applicable
here, since CIPA "threatens to chill free speech – because it
will censor a substantial amount of protected speech, because it
is vague, and because the law creates a prior restraint . . . ."
 Unlike the statutes typically challenged as facially overbroad,
however, CIPA does not impose criminal penalties on those who
violate its conditions.  Cf. Freedom of Speech Coalition, 122 S.
Ct. at 1398 ("With these severe penalties in force, few
legitimate movie producers or book publishers, or few other
speakers in any capacity, would risk distributing images in or
near the uncertain reach of this law.").  Thus, the rationale for
permitting facial challenges to laws that may be constitutionally
applied in some instances is less compelling in cases such as
this, which involve challenges to Congress's exercise of the
spending power, than in challenges to criminal statutes.
Nonetheless, "even minor punishments can chill protected
speech," id., and absent the ability to challenge CIPA on its
face, public libraries that depend on federal funds may decide to
comply with CIPA's terms, thereby denying patrons access to
substantial amounts of constitutionally protected speech, rather
than refusing to comply with CIPA's terms and consequently losing
the benefits of federal funds.  See 47 C.F.R. Sec. 54.520(e)(1) ("A
school or library that knowingly fails to ensure the use of
computers in accordance with the certifications required by this
section, must reimburse any funds and discounts received under
the federal universal support service support mechanism for
schools and libraries for the period in which there was
noncompliance.").  Even in cases where the only penalty for
failure to comply with a statute is the withholding of federal
funds, the Court has sustained facial challenges to Congress's
exercise of the spending power.  See, e.g., Legal Servs. Corp. v.
Velazquez, 531 U.S. 533 (2001) (declaring unconstitutional on its
face a federal statute restricting the ability of legal services
providers who receive federal funds to engage in activity
protected by the First Amendment).


The Court's unconstitutional conditions cases, such as
Velazquez, are not strictly controlling, since they do not
require a showing that recipients who comply with the conditions
attached to federal funding will, as state actors, violate
others' constitutional rights, as is the case under the fourth
prong of Dole.  However, they are highly instructive.
The Supreme Court's pronouncements in the unconstitutional
conditions cases on what is necessary for a plaintiff to mount a
successful First Amendment facial challenge to an exercise of
Congress's spending power have not produced a seamless web.  For
example, in Rust v. Sullivan, 500 U.S. 173 (1991), the Court
rejected a First Amendment facial challenge to federal
regulations prohibiting federally funded healthcare clinics from
providing counseling concerning the use of abortion as a method
of family planning, explaining that:
Petitioners are challenging the facial validity of the
regulations.  Thus, we are concerned only with the
question whether, on their face, the regulations are
both authorized by the Act and can be construed in such
a manner that they can be applied to a set of
individuals without infringing upon constitutionally
protected rights.  Petitioners face a heavy burden in
seeking to have the regulations invalidated as facially
unconstitutional. . . .  The fact that the regulations
might operate unconstitutionally under some conceivable
set of circumstances is insufficient to render them
wholly invalid.


Id. at 183 (internal quotation marks, alterations, and citation
omitted).  In contrast, NEA v. Finley, 524 U.S. 569 (1998), which
also involved a facial First Amendment challenge to an exercise
of Congress's spending power, articulated a somewhat more liberal
test of facial validity than Rust, explaining that "[t]o prevail,
respondents must demonstrate a substantial risk that application
of the provision will lead to the suppression of speech."  Id. at
580.
Against this background, it is unclear to us whether, to
succeed in facially invalidating CIPA on the grounds that it will
"induce the States to engage in activities that would themselves
be unconstitutional," Dole, 483 U.S. at 210, plaintiffs must show
that it is impossible for public libraries to comply with CIPA's
conditions without violating the First Amendment, or rather
simply that CIPA will effectively restrict library patrons'
access to substantial amounts of constitutionally protected
speech, therefore causing many libraries to violate the First
Amendment.  However, we need not resolve this issue.  Rather, we
may assume without deciding, for purposes of this case, that a
facial challenge to CIPA requires plaintiffs to show that any
public library that complies with CIPA's conditions will
necessarily violate the First Amendment and, as explained in
detail below, we believe that CIPA's constitutionality fails even
under this more restrictive test of facial validity urged on us
by the government.  Because of the inherent limitations in
filtering technology, public libraries can never comply with CIPA
without blocking access to a substantial amount of speech that is
both constitutionally protected and fails to meet even the
filtering companies' own blocking criteria.  We turn first to the
governing legal principles to be applied to the facts in order to
determine whether the First Amendment permits a library to use
the filtering technology mandated by CIPA.
3.        Level of Scrutiny Applicable to Content-based Restrictions
on Internet Access in Public Libraries



In analyzing the constitutionality of a public library's use
of Internet filtering software, we must first identify the
appropriate level of scrutiny to apply to this restriction on
patrons' access to speech.  While plaintiffs argue that a public
library's use of such filters is subject to strict scrutiny, the
government maintains that the applicable standard is rational
basis review.  If strict scrutiny applies, the government must
show that the challenged restriction on speech is narrowly
tailored to promote a compelling government interest and that no
less restrictive alternative would further that interest.  United
States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813 (2000).
In contrast, under rational basis review, the challenged
restriction need only be reasonable; the government interest that
the restriction serves need not be compelling; the restriction
need not be narrowly tailored to serve that interest; and the
restriction "need not be the most reasonable or the only
reasonable limitation."  Cornelius v. NAACP Legal Def. & Educ.
Fund, 473 U.S. 788, 808 (1985).


Software filters, by definition, block access to speech on
the basis of its content, and content-based restrictions on
speech are generally subject to strict scrutiny.  See Playboy,
529 U.S. at 813 ("[A] content-based speech restriction . . . can
stand only if it satisfies strict scrutiny.").  Strict scrutiny
does not necessarily apply to content-based restrictions on
speech, however, where the restrictions apply only to speech on
government property, such as public libraries.  "[I]t is . . .
well settled that the government need not permit all forms of
speech on property that it owns and controls."  Int'l Soc'y for
Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992).  We
perforce turn to a discussion of public forum doctrine.
1.        Overview of Public Forum Doctrine
The government's power to restrict speech on its own
property is not unlimited.  Rather, under public forum doctrine,
the extent to which the First Amendment permits the government to
restrict speech on its own property depends on the character of
the forum that the government has created.  See Cornelius v.
NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985).  Thus,
the First Amendment affords greater deference to restrictions on
speech in those areas considered less amenable to free
expression, such as military bases, see Greer v. Spock, 424 U.S.
828 (1976), jail grounds, see Adderley v. Florida, 385 U.S. 39
(1966), or public airport terminals, see Int'l Soc'y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), than to
restrictions on speech in state universities, see Rosenberger v.
Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995), or
streets, sidewalks and public parks, see Frisby v. Schultz, 487
U.S. 474 (1988); Hague v. CIO, 307 U.S. 496 (1939).
The Supreme Court has identified three types of fora for
purposes of identifying the level of First Amendment scrutiny
applicable to content-based restrictions on speech on government
property: traditional public fora, designated public fora, and
nonpublic fora.  Traditional public fora include sidewalks,
squares, and public parks:
[S]treets and parks . . . have immemorially been held
in trust for the use of the public and, time out of
mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing
public questions.  Such use of the streets and public
places has, from ancient times, been a part of the
privileges, immunities, rights, and liberties of
citizens.


Hague, 307 U.S. at 515.  "In these quintessential public forums,
. . . [f]or the State to enforce a content-based exclusion it
must show that its regulation is necessary to serve a compelling
state interest and that it is narrowly drawn to achieve that
end."  Perry Educ. Ass'n v. Perry Local Educs. Ass'n, 460 U.S.
37, 45 (1983); see also Int'l Soc'y for Krishna Consciousness,
505 U.S. at 678 ("[R]egulation of speech on government property
that has traditionally been available for public expression is
subject to the highest scrutiny."); Frisby, 487 U.S. at 480
("[W]e have repeatedly referred to public streets as the
archetype of a traditional public forum.").
A second category of fora, known as designated (or limited)
public fora, "consists of public property which the State has
opened for use by the public as a place for expressive activity."
 Perry, 460 U.S. at 46.  Whereas any content-based restriction on
the use of traditional public fora is subject to strict scrutiny,
the state is generally permitted, as long as it does not
discriminate on the basis of viewpoint, to limit a designated
public forum to certain speakers or the discussion of certain
subjects.  See Perry, 460 U.S. at 45 n.7.  Once it has defined
the limits of a designated public forum, however, "[r]egulation
of such property is subject to the same limitations as that
governing a traditional public forum."  Int'l Soc'y for Krishna
Consciousness, 505 U.S. at 678.  Examples of designated fora
include university meeting facilities, see Widmar v. Vincent, 454
U.S. 263 (1981), school board meetings, see City of Madison Joint
School Dist. v. Wisc. Employment Relations Comm'n, 429 U.S. 167
(1976), and municipal theaters, see Southeastern Promotions, Ltd.
v. Conrad, 420 U.S. 546 (1975).


The third category, nonpublic fora, consists of all
remaining public property.  "Limitations on expressive activity
conducted on this last category of property must survive only a
much more limited review.  The challenged regulation need only be
reasonable, as long as the regulation is not an effort to
suppress the speaker's activity due to disagreement with the
speaker's view."  Int'l Soc'y for Krishna Consciousness, 505 U.S.
at 679.
2.        Contours of the Relevant Forum: the Library's
Collection as a Whole or the Provision of Internet
Access?

To apply public forum doctrine to this case, we must first
determine whether the appropriate forum for analysis is the
library's collection as a whole, which includes both print and
electronic resources, or the library's provision of Internet
access.  Where a plaintiff seeks limited access, for expressive
purposes, to governmentally controlled property, the Supreme
Court has held that the relevant forum is defined not by the
physical limits of the government property at issue, but rather
by the specific access that the plaintiff seeks:
Although . . . as an initial matter a speaker must seek
access to public property or to private property
dedicated to public use to evoke First Amendment
concerns, forum analysis is not completed merely by
identifying the government property at issue.  Rather,
in defining the forum we have focused on the access
sought by the speaker.  When speakers seek general
access to public property, the forum encompasses that
property.  In cases in which limited access is sought,
our cases have taken a more tailored approach to
ascertaining the perimeters of a forum within the
confines of the government property.
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788,
801 (1985).


Thus, in Cornelius, where the plaintiffs were legal defense
and political advocacy groups seeking to participate in the
Combined Federal Campaign charity drive, the Court held that the
relevant forum, for First Amendment purposes, was not the entire
federal workplace, but rather the charity drive itself.  Id. at
801.  Similarly, in Perry Education Association v. Perry Local
Educators' Association, 460 U.S. 37 (1983), which addressed a
union's right to access a public school's internal mail system
and teachers' mailboxes, the Court identified the relevant forum
as the school's mail system, not the public school as a whole.
In Widmar v. Vincent, 454 U.S. 263 (1981), in which a student
group challenged a state university's restrictions on use of its
meeting facilities, the Court identified the relevant forum as
the meeting facilities to which the plaintiffs sought access, not
the state university generally.  And in Christ's Bride
Ministries, Inc. v. SEPTA, 148 F.3d 242 (3d Cir. 1998), involving
a First Amendment challenge to the removal of advertisements from
subway and commuter rail stations, the Third Circuit noted that
the forum at issue was not the rail and subway stations as a
whole, but rather the advertising space within the stations.  Id.
at 248.  Although these cases dealt with the problem of
identifying the relevant forum where speakers are claiming a
right of access, we believe that the same approach applies to
identifying the relevant forum where the parties seeking access
are listeners or readers.


In this case, the patron plaintiffs are not asserting a
First Amendment right to compel public libraries to acquire
certain books or magazines for their print collections.  Nor are
the Web site plaintiffs claiming a First Amendment right to
compel public libraries to carry print materials that they
publish.  Rather, the right at issue in this case is the specific
right of library patrons to access information on the Internet,
and the specific right of Web publishers to provide library
patrons with information via the Internet.  Thus, the relevant
forum for analysis is not the library's entire collection, which
includes both print and electronic media, such as the Internet,
but rather the specific forum created when the library provides
its patrons with Internet access.
Although a public library's provision of Internet access
does not resemble the conventional notion of a forum as a well-
defined physical space, the same First Amendment standards apply.
 See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.
819, 830 (1995) (holding that a state university's student
activities fund "is a forum more in a metaphysical than a spatial
or geographic sense, but the same principles are applicable");
see also Cornelius, 473 U.S. at 801 (identifying the Combined
Federal Campaign charity drive as the relevant unit of analysis
for application of public forum doctrine).
3.        Content-based Restrictions in Designated Public Fora


Unlike nonpublic fora such as airport terminals, see Int'l
Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672
(1992), military bases, see Greer v. Spock, 424 U.S. 828 (1976),
jail grounds, see Adderley v. Florida, 385 U.S. 39 (1966), the
federal workplace, see Cornelius v. NAACP Legal Def. & Educ.
Fund, 473 U.S. 788, 805 (1985), and public transit vehicles, see
Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), the
purpose of a public library in general, and the provision of
Internet access within a public library in particular, is "for
use by the public . . . for expressive activity," Perry Educ.
Ass'n v. Perry Local Educs. Ass'n, 460 U.S. 37, 45 (1983),
namely, the dissemination and receipt by the public of a wide
range of information.  We are satisfied that when the government
provides Internet access in a public library, it has created a
designated public forum.  See Mainstream Loudoun v. Bd. of
Trustees of the Loudoun County Library, 24 F. Supp. 2d 552, 563
(E.D. Va. 1998); cf. Kreimer v. Bureau of Police, 958 F.2d 1242,
1259 (3d Cir. 1992) (holding that a public library is a limited
public forum).
Relying on those cases that have recognized that government
has leeway, under the First Amendment, to limit use of a
designated public forum to narrowly specified purposes, and that
content-based restrictions on speech that are consistent with
those purposes are subject only to rational basis review, the
government argues for application of rational basis review to
public libraries' decisions about which content to make available
to their patrons via the Internet.  See Rosenberger, 515 U.S.
819, 829 (1995) ("The necessities of confining a forum to the
limited and legitimate purposes for which it was created may
justify the State in reserving it for certain groups or for the
discussion of certain topics."); Perry, 460 U.S. at 46 n.7 (1983)
("A public forum may be created for a limited purpose such as use
by certain groups . . . or for the discussion of certain
subjects.").


In particular, the government forcefully argues that a
public library's decision to limit the content of its digital
offerings on the Internet should be subject to no stricter
scrutiny than its decisions about what content to make available
to its patrons through the library's print collection.  According
to the government, just as a public library may choose to acquire
books about gardening but not golf, without having to show that
this content-based restriction on patrons' access to speech is
narrowly tailored to further a compelling state interest, so may
a public library make content-based decisions about which speech
to make available on the Internet, without having to show that
such a restriction satisfies strict scrutiny.
Plaintiffs respond that the government's ability to restrict
the content of speech in a designated public forum by restricting
the purpose of the designated public forum that it creates is not
unlimited.  Cf. Legal Servs. Corp. v. Velazquez, 531 U.S. 533,
547 (2001) ("Congress cannot recast a condition on funding as a
mere definition of its program in every case, lest the First
Amendment be reduced to a simple semantic exercise.").  As
Justice Kennedy has explained:
If Government has a freer hand to draw content-based
distinctions in limiting a forum than in excluding
someone from it, the First Amendment would be a dead
letter in designated public forums; every exclusion
could be recast as a limitation. . . .  The power to
limit or redefine forums for a specific legitimate
purpose does not allow the government to exclude
certain speech or speakers from them for any reason at
all.
Denver Area Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 801
(1996) (Kennedy, J., concurring in the judgment).


Although we agree with plaintiffs that the First Amendment
imposes some limits on the state's ability to adopt content-based
restrictions in defining the purpose of a public forum, precisely
what those limits are is unclear, and presents a difficult
problem in First Amendment jurisprudence.  The Supreme Court's
"cases have not yet determined . . . that government's decision
to dedicate a public forum to one type of content or another is
necessarily subject to the highest level of scrutiny.  Must a
local government, for example, show a compelling state interest
if it builds a band shell in the park and dedicates it solely to
classical music (but not to jazz)?  The answer is not obvious."
Denver, 518 U.S. at 750 (plurality opinion); see also
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 572-73
(1975) (Rehnquist, J., dissenting) ("May an opera house limit its
productions to operas, or must it also show rock musicals?  May a
municipal theater devote an entire season to Shakespeare, or is
it required to book any potential producer on a first come, first
served basis?").
We believe, however, that certain principles emerge from the
Supreme Court's jurisprudence on this question.  In particular,
and perhaps somewhat counterintuitively, the more narrow the
range of speech that the government chooses to subsidize (whether
directly, through government grants or other funding, or
indirectly, through the creation of a public forum) the more
deference the First Amendment accords the government in drawing
content-based distinctions.


At one extreme lies the government's decision to fund a
particular message that the government seeks to disseminate.  In
this context, content-based restrictions on the speech that
government chooses to subsidize are clearly subject to at most
rational basis review, and even viewpoint discrimination is
permissible.  For example, "[w]hen Congress established a
National Endowment for Democracy to encourage other countries to
adopt democratic principles, 22 U.S.C. Sec. 4411(b), it was not
constitutionally required to fund a program to encourage
competing lines of political philosophy such as communism and
fascism."  Rust v. Sullivan, 500 U.S. 173, 194 (1991); see also
Velazquez, 531 U.S. at 541 ("[V]iewpoint-based funding decisions
can be sustained in instances in which the government is itself
the speaker, or in instances, like Rust, in which the government
used private speakers to transmit information pertaining to its
own program.") (internal quotation marks and citation omitted).
Although not strictly controlling, the Supreme Court's
unconstitutional conditions cases, such as Rust and Velazquez,
are instructive for purposes of analyzing content-based
restrictions on the use of public fora.  This is because the
limitations that government places on the use of a public forum
can be conceptualized as conditions that the government attaches
to the receipt of a benefit that it offers, namely, the use of
government property.  Public forum cases thus resemble those
unconstitutional conditions cases involving First Amendment
challenges to the conditions that the state places on the receipt
of a government benefit.  See Velazquez, 531 U.S. at 544 ("As
this suit involves a subsidy, limited forum cases . . . may not
be controlling in the strict sense, yet they do provide some
instruction.").


Even when the government does not fund the dissemination of
a particular government message, the First Amendment generally
permits government, subject to the constraints of viewpoint
neutrality, to create public institutions such as art museums and
state universities, dedicated to facilitating the dissemination
of private speech that the government believes to have particular
merit.  Thus, in NEA v. Finley, 524 U.S. 569 (1998), the Court
upheld the use of content-based restrictions in a federal program
awarding grants to artists on the basis of, inter alia, artistic
excellence.  "The very assumption of the NEA is that grants will
be awarded according to the artistic worth of competing
applications, and absolute neutrality is simply inconceivable."
Id. at 585 (internal quotation marks and citation omitted).
Similarly, as Justice Stevens explained in his concurring
opinion in Widmar v. Vincent, 454 U.S. 263 (1981), the First
Amendment does not necessarily subject to strict scrutiny a state
university's use of content-based means of allocating scarce
resources, including limited public fora such as its meeting
facilities:
Because every university's resources are limited, an
educational institution must routinely make decisions
concerning the use of the time and space that is
available for extracurricular activities.  In my
judgment, it is both necessary and appropriate for
those decisions to evaluate the content of a proposed
student activity.  I should think it obvious, for
example, that if two groups of 25 students requested
the use of a room at a particular time – one to view
Mickey Mouse cartoons and the other to rehearse an
amateur performance of Hamlet – the First Amendment
would not require that the room be reserved for the
group that submitted its application first.  Nor do I
see why a university should have to establish a
"compelling state interest" to defend its decision to
permit one group to use the facility and not the other.
Id. at 278 (Stevens, J., concurring in the judgment).



The more broadly the government facilitates private speech,
however, the less deference the First Amendment accords to the
government's content-based restrictions on the speech that it
facilitates.  Thus, where the government creates a designated
public forum to facilitate private speech representing a diverse
range of viewpoints, the government's decision selectively to
single out particular viewpoints for exclusion is subject to
strict scrutiny.  Compare Rosenberger, 515 U.S. at 834 (applying
heightened First Amendment scrutiny to viewpoint-based
restrictions on the use of a limited public forum where the
government "does not itself speak or subsidize transmittal of a
message it favors but instead expends funds to encourage a
diversity of views from private speakers"), with Finley, 524 U.S.
at 586 ("In the context of arts funding, in contrast to many
other subsidies, the Government does not indiscriminately
encourage a diversity of views from private speakers.") (internal
quotation marks and citation omitted).
Similarly, although the government may create a designated
public forum limited to speech on a particular topic, if the
government opens the forum to members of the general public to
speak on that topic while selectively singling out for exclusion
particular speakers on the basis of the content of their speech,
that restriction is subject to strict scrutiny.  For instance, in
City of Madison Joint School District No. 8 v. Wisconsin
Employment Relations Commission, 429 U.S. 167 (1976), the Court
held that where a school board opens its meetings for public
participation, it may not, consistent with the First Amendment,
prohibit teachers other than union representatives from speaking
on the subject of pending collective-bargaining negotiations.
See id. at 175 (noting that the state "has opened a forum for
direct citizen involvement"); see also Ark. Educ. Television
Comm'n v. Forbes, 523 U.S. 666, 680 (1998) (distinguishing, for
purposes of determining the appropriate level of First Amendment
scrutiny, a televised debate in which a public broadcasting
station exercises editorial discretion in selecting participating
candidates from a debate that has "an open-microphone format").


Finally, content-based restrictions on speech in a
designated public forum are most clearly subject to strict
scrutiny when the government opens a forum for virtually
unrestricted use by the general public for speech on a virtually
unrestricted range of topics, while selectively excluding
particular speech whose content it disfavors.  Thus, in Conrad,
the Court held that a local government violated the First
Amendment when it denied a group seeking to perform the rock
musical "Hair" access to a general-purpose municipal theater open
for the public at large to use for performances.  See also
Denver, 518 U.S. at 802 (Kennedy, J., concurring in the judgment)
(suggesting that strict scrutiny would not apply to a local
government's decision to "build[] a band shell in the park and
dedicate[] it solely to classical music (but not jazz)," but
would apply to "the Government's creation of a band shell in
which all types of music might be performed except for rap
music").
Similarly, in FCC v. League of Women Voters of Cal., 468
U.S. 364 (1984), the Court subjected to heightened scrutiny a
federal program that funded a wide range of public broadcasting
stations that disseminated speech on a wide range of subjects,
where the federal program singled out for exclusion speech whose
content amounted to editorializing.  As the Court later
explained:
In FCC v. League of Women Voters of Cal., 468 U.S. 364
(1984) the Court was instructed by its understanding of the
dynamics of the broadcast industry in holding that
prohibitions against editorializing by public radio networks
were an impermissible restriction, even though the
Government enacted the restriction to control the use of
public funds.  The First Amendment forbade the Government
from using the forum in an unconventional way to suppress
speech inherent in the nature of the medium.

Velazquez, 531 U.S. at 543.


In sum, the more widely the state opens a forum for members
of the public to speak on a variety of subjects and viewpoints,
the more vulnerable is the state's decision selectively to
exclude certain speech on the basis of its disfavored content, as
such exclusions distort the marketplace of ideas that the state
has created in establishing the forum.  Cf. Velazquez, 531 U.S.
at 544 ("Restricting LSC attorneys in advising their clients and
in presenting arguments and analyses to the courts distorts the
legal system by altering the traditional role of the attorneys in
much the same way broadcast systems or student publication
networks were changed in the limited forum cases . . . .").
Thus, we believe that where the state designates a forum for
expressive activity and opens the forum for speech by the public
at large on a wide range of topics, strict scrutiny applies to
restrictions that single out for exclusion from the forum
particular speech whose content is disfavored.  "Laws designed or
intended to suppress or restrict the expression of specific
speakers contradict basic First Amendment principles."  United
States v. Playboy Entm't Group, Inc., 529 U.S. 803, 812 (2000);
see also Denver, 518 U.S. at 782 (Kennedy, J., concurring in the
judgment) (noting the flaw in a law that "singles out one sort of
speech for vulnerability to private censorship in a context where
content-based discrimination is not otherwise permitted").
Compare Forbes, 523 U.S. at 679 (holding that the state does not
create a public forum when it "allows selective access for
individual speakers rather than general access for a class of
speakers") (emphasis added), with Police Dep't of the City of
Chicago v. Mosley, 408 U.S. 92, 96 (1972) ("Selective exclusions
from a public forum may not be based on content alone, and may
not be justified by reference to content alone.") (emphasis
added).


We note further that to the extent that the government
creates a public forum expressly designed to facilitate the
dissemination of private speech, opens the forum to any member of
the public to speak on any virtually any topic, and then
selectively targets certain speech for exclusion based on its
content, the government is singling out speech in a manner that
resembles the discriminatory taxes on the press that the Supreme
Court subjected to heightened First Amendment scrutiny in
Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987),
and Minneapolis Star & Tribune Co. v. Minnesota Commissioner of
Revenue, 460 U.S. 575 (1983), which we explain in the margin.
4.        Reasons for Applying Strict Scrutiny

1.        Selective Exclusion From a "Vast Democratic
Forum"



Applying these principles to public libraries, we agree with
the government that generally the First Amendment subjects
libraries' content-based decisions about which print materials to
acquire for their collections to only rational review.  In making
these decisions, public libraries are generally free to adopt
collection development criteria that reflect not simply patrons'
demand for certain material, but also the library's evaluation of
the material's quality.  See Bernard W. Bell, Filth, Filtering,
and the First Amendment: Ruminations on Public Libraries' Use of
Internet Filtering Software, 53 Fed. Comm. L.J. 191, 225 (2001)
("Librarians should have the discretion to decide that the
library is committed to intellectual inquiry, not to the
satisfaction of the full range of human desires.").  Thus, a
public library's decision to use the last $100 of its budget to
purchase the complete works of Shakespeare even though more of
its patrons would prefer the library to use the same amount to
purchase the complete works of John Grisham, is not, in our view,
subject to strict scrutiny.  Cf. NEA v. Finley, 524 U.S. 569
(1998) (subjecting only to rational basis review the government's
decision to award NEA grants on the basis of, inter alia,
artistic excellence).
Nonetheless, we disagree with the government's argument that
public libraries' use of Internet filters is no different, for
First Amendment purposes, from the editorial discretion that they
exercise when they choose to acquire certain books on the basis
of librarians' evaluation of their quality.  The central
difference, in our view, is that by providing patrons with even
filtered Internet access, the library permits patrons to receive
speech on a virtually unlimited number of topics, from a
virtually unlimited number of speakers, without attempting to
restrict patrons' access to speech that the library, in the
exercise of its professional judgment, determines to be
particularly valuable.  Cf. Rosenberger v. Rector & Visitors of
Univ. of Va., 515 U.S. 819, 834 (1995) (applying strict scrutiny
to viewpoint-based restrictions where the state "does not itself
speak or subsidize transmittal of a message it favors but instead
expends funds to encourage a diversity of views from private
speakers").  See generally supra Section IV.C.


In those cases upholding the government's exercise of
editorial discretion in selecting certain speech for
subsidization or inclusion in a state-created forum, the state
actor exercising the editorial discretion has at least reviewed
the content of the speech that the forum facilitates.  Thus, in
Finley the NEA examined the content of those works of art that it
chose to subsidize, and in Arkansas Educational Television
Commission v. Forbes, 523 U.S. 666 (1998), the public broadcaster
specifically reviewed and approved each speaker permitted to
participate in the debate.  See id. at 673 ("In the case of
television broadcasting, . . . broad rights of access for outside
speakers would be antithetical, as a general rule, to the
discretion that stations and their editorial staff must exercise
to fulfill their journalistic purpose and statutory
obligations."); Finley, 524 U.S. at 586 ("The NEA's mandate is to
make esthetic judgments, and the inherently content-based
'excellence' threshold for NEA support sets it apart from the
subsidy at issue in Rosenberger – which was available to all
student organizations that were 'related to the educational
purpose of the University . . . .'") (quoting Rosenberger, 515
U.S. at 824); see also Cornelius v. NAACP Legal Def. & Educ.
Fund, 473 U.S. 788, 804 (1985) ("The Government's consistent
policy has been to limit participation in the [Combined Federal
Campaign] to 'appropriate' voluntary agencies and to require
agencies seeking admission to obtain permission from federal and
local Campaign officials. . . .  [T]here is no evidence
suggesting that the granting of the requisite permission is
merely ministerial.").  The essence of editorial discretion
requires the exercise of professional judgment in examining the
content that the government singles out as speech of particular
value.


This exercise of editorial discretion is evident in a
library's decision to acquire certain books for its collection.
As the government's experts in library science testified, in
selecting a book for a library's collection, librarians evaluate
the book's quality by reference to a variety of criteria such as
its accuracy, the title's niche in relation to the rest of the
collection, the authority of the author, the publisher, the
work's presentation, and how it compares with other material
available in the same genre or on the same subject.  Thus, the
content of every book that a library acquires has been reviewed
by the library's collection development staff or someone to whom
they have delegated the task, and has been judged to meet the
criteria that form the basis for the library's collection
development policy.  Although some public libraries use "approval
plans" to delegate the collection development to third-party
vendors which provide the library with recommended materials that
the library is then free to retain or return to the vendor, the
same principle nonetheless attains.


In contrast, in providing patrons with even filtered
Internet access, a public library invites patrons to access
speech whose content has never been reviewed and recommended as
particularly valuable by either a librarian or a third party to
whom the library has delegated collection development decisions.
 Although several of the government's librarian witnesses who
testified at trial purport to apply the same standards that
govern the library's acquisition of print materials to the
library's provision of Internet access to patrons, when public
libraries provide their patrons with Internet access, they
intentionally open their doors to vast amounts of speech that
clearly lacks sufficient quality to ever be considered for the
library's print collection.  Unless a library allows access to
only those sites that have been preselected as having particular
value, a method that, as noted above, was tried and rejected by
the Westerville Ohio Public Library, see supra at 46-47, even a
library that uses software filters has opened its Internet
collection "for indiscriminate use by the general public."  Perry
Educ. Ass'n v. Perry Local Educs. Ass'n, 460 U.S. 37, 47 (1983).
 "[M]ost Internet forums – including chat rooms, newsgroups, mail
exploders, and the Web – are open to all comers."  Reno v. ACLU,
521 U.S. 844, 880 (1997).


The fundamental difference between a library's print
collection and its provision of Internet access is illustrated by
comparing the extent to which the library opens its print
collection to members of the public to speak on a given topic and
the extent to which it opens its Internet terminals to members of
the public to speak on a given topic.  When a public library
chooses to carry books on a selected topic, e.g. chemistry, it
does not open its print collection to any member of the public
who wishes to write about chemistry.  Rather, out of the myriad
of books that have ever been written on chemistry, each book on
chemistry that the library carries has been reviewed and selected
because the person reviewing the book, in the exercise of his or
her professional judgment, has deemed its content to be
particularly valuable.  In contrast, when a public library
provides Internet access, even filtered Internet access, it has
created a forum open to any member of the public who writes about
chemistry on the Internet, regardless of how unscientific the
author's methods or of how patently false the author's
conclusions are, regardless of the author's reputation or
grammar, and regardless of the reviews of the scientific
community.
Notwithstanding protestations in CIPA's legislative history
to the contrary,  members of the general public do define the
content that public libraries make available to their patrons
through the Internet.  Any member of the public with Internet
access could, through the free Web hosting services available on
the Internet, tonight jot down a few musings on any subject under
the sun, and tomorrow those musings would become part of public
libraries' online offerings and be available to any library
patron who seeks them out.


In providing its patrons with Internet access, a public
library creates a forum for the facilitation of speech, almost
none of which either the library's collection development staff
or even the filtering companies have ever reviewed.  Although
filtering companies review a portion of the Web in classifying
particular sites, the portion of the Web that the filtering
companies actually review is quite small in relation to the Web
as a whole.  The filtering companies' harvesting process,
described in our findings of fact, is intended to identify only a
small fraction of Web sites for the filtering companies to
review.  Put simply, the state cannot be said to be exercising
editorial discretion permitted under the First Amendment when it
indiscriminately facilitates private speech whose content it
makes no effort to examine.  Cf. Bell, supra, at 226 ("[C]ourts
should take a much more jaundiced view of library policies that
block Internet access to a very limited array of subjects than
they take of library policies that reserve Internet terminals for
very limited use.").
While the First Amendment permits the government to exercise
editorial discretion in singling out particularly favored speech
for subsidization or inclusion in a state-created forum, we
believe that where the state provides access to a "vast
democratic forum[]," Reno, 521 U.S. at 868, open to any member of
the public to speak on subjects "as diverse as human thought,"
id. at 870, and then selectively excludes from the forum certain
speech on the basis of its content, such exclusions are subject
to strict scrutiny.  These exclusions risk fundamentally
distorting the unique marketplace of ideas that public libraries
create when they open their collections, via the Internet, to the
speech of millions of individuals around the world on a virtually
limitless number of subjects.



A public library's content-based restrictions on patrons'
Internet access thus resemble the content-based restrictions on
speech subsidized by the government, whether through direct
funding or through the creation of a designated public forum,
that the Supreme Court has subjected to strict scrutiny, as
discussed above in Section IV.C.  Although the government may
subsidize a particular message representing the government's
viewpoint without having to satisfy strict scrutiny, see Rust v.
Sullivan, 500 U.S. 173 (1991), strict scrutiny applies to
restrictions that selectively exclude particular viewpoints from
a public forum designed to facilitate a wide range of viewpoints,
see Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.
819 (1995).  Similarly, although the state's exercise of
editorial discretion in selecting particular speakers for
participation in a state-sponsored forum is subject to rational
basis review, see Ark. Educ. Television Comm'n v. Forbes, 523
U.S. 666 (1998), selective exclusions of particular speakers from
a forum otherwise open to any member of the public to speak are
subject to strict scrutiny, see City of Madison Joint School
Dist. No. 8 v. Wis. Employment Relations Comm'n, 429 U.S. 167
(1976).
And while the government may, subject only to rational basis
review, make content-based decisions in selecting works of
artistic excellence to subsidize, see NEA v. Finley, 524 U.S. 569
(1998), the Supreme Court has applied heightened scrutiny where
the government opens a general-purpose municipal theater for use
by the public, but selectively excludes disfavored content, see
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975),
where the government facilitates the speech of public
broadcasters on a virtually limitless number of topics, but
prohibits editorializing, see FCC v. League of Women Voters of
Cal., 468 U.S. 364 (1984), and where the government funds a wide
range of legal services but restricts funding recipients from
challenging welfare laws, see Legal Servs. Corp. v. Velazquez,
531 U.S. 533 (2001).  Similarly, where a public library opens a
forum to an unlimited number of speakers around the world to
speak on an unlimited number of topics, strict scrutiny applies
to the library's selective exclusions of particular speech whose
content the library disfavors.
2.        Analogy to Traditional Public Fora


Application of strict scrutiny to public libraries' use of
software filters, in our view, finds further support in the
extent to which public libraries' provision of Internet access
promotes First Amendment values in an analogous manner to
traditional public fora, such as sidewalks and parks, in which
content-based restrictions on speech are always subject to strict
scrutiny.  The public library, by its very nature, is "designed
for freewheeling inquiry."  Bd. of Education v. Pico, 457 U.S.
853, 915 (1982) (Rehnquist, J., dissenting).  As such, the
library is a "mighty resource in the free marketplace of ideas,"
Minarcini v. Strongsville City Sch. Dist., 541 F.2d 577, 582 (6th
Cir. 1976), and represents a "quintessential locus of the receipt
of information."  Kreimer v. Bureau of Police for Morristown, 958
F.2d 1242, 1255 (3d Cir. 1992); see also Sund v. City of Wichita
Falls, 121 F. Supp. 2d 530, 547 (N.D. Tex. 2000) ("The right to
receive information is vigorously enforced in the context of a
public library . . . ."); cf. Int'l Soc'y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 681 (1992) ("[A]
traditional public forum is property that has as 'a principal
purpose . . . the free exchange of ideas.'") (quoting Cornelius
v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800 (1985)).


We acknowledge that the provision of Internet access in a
public library does not enjoy the historical pedigree of streets,
sidewalks, and parks as a vehicle of free expression.
Nonetheless, we believe that it shares many of the
characteristics of these traditional public fora that uniquely
promote First Amendment values and accordingly warrant
application of strict scrutiny to any content-based restriction
on speech in these fora.  Regulation of speech in streets,
sidewalks, and parks is subject to the highest scrutiny not
simply by virtue of history and tradition, but also because the
speech-facilitating character of sidewalks and parks makes them
distinctly deserving of First Amendment protection.  Many of
these same speech-promoting features of the traditional public
forum appear in public libraries' provision of Internet access.
First, public libraries, like sidewalks and parks, are
generally open to any member of the public who wishes to receive
the speech that these fora facilitate, subject only to narrow
limitations.  See Kreimer, 958 F.2d at 1260 (noting that a public
library does not retain unfettered discretion "to choose whom it
will permit to enter the Library," but upholding the library's
right to exclude patrons who harass patrons or whose offensive
personal hygiene precludes the library's use by other patrons).
Moreover, like traditional public fora, public libraries are
funded by taxpayers and therefore do not charge members of the
public each time they use the forum.  The only direct cost to
library patrons who wish to receive information, whether via the
Internet or the library's print collection, is the time spent
reading.


By providing Internet access to millions of Americans to
whom such access would otherwise be unavailable, public libraries
play a critical role in bridging the digital divide separating
those with access to new information technologies from those that
lack access.  See generally National Telecommunications and
Information Administration, U.S. Department of Commerce, Falling
Through the Net: Defining the Digital Divide (1999), available at
http://www.ntia.doc.gov/ntiahome/fttn99/contents.html.  Cf.
Velazquez, 531 U.S. at 546 (invalidating a content-based
restriction on the speech of federally funded legal services
corporations and noting that given the financial hardship of
legal services corporations' clients, "[t]he restriction on
speech is even more problematic because in cases where the
attorney withdraws from a representation, the client is unlikely
to find other counsel").  Public libraries that provide Internet
access greatly expand the educational opportunities for millions
of Americans who, as explained in the margin, would otherwise be
deprived of the benefits of this new medium.


Just as important as the openness of a forum to listeners is
its openness to speakers.  Parks and sidewalks are paradigmatic
loci of First Amendment values in large part because they permit
speakers to communicate with a wide audience at low cost.  One
can address members of the public in a park for little more than
the cost of a soapbox, and one can distribute handbills on the
sidewalk for little more than the cost of a pen, paper, and some
photocopies.  See Martin v. City of Struthers, 319 U.S. 141, 146
(1943) ("Door to door distribution of circulars is essential to
the poorly financed causes of little people."); Laurence H.
Tribe, American Constitutional Law  Sec. 12-24 at 987 (2d ed. 1988)
("The 'public forum' doctrine holds that restrictions on speech
should be subject to higher scrutiny when, all other things being
equal, that speech occurs in areas playing a vital role in
communication – such as in those places historically associated
with first amendment activities, such as streets, sidewalks, and
parks – especially because of how indispensable communication in
these places is to people who lack access to more elaborate (and
more costly) channels."); Daniel A. Farber, Free Speech without
Romance: Public Choice and the First Amendment, 105 Harv. L. Rev.
554, 574 n.86 (1991) (noting that traditional public fora "are
often the only place where less affluent groups and individuals
can effectively express their message"); Harry Kalven, Jr., The
Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev.
1, 30 ("[T]he parade, the picket, the leaflet, the sound truck,
have been the media of communication exploited by those with
little access to the more genteel means of communication.").
Similarly, given the existence of message boards and free
Web hosting services, a speaker can, via the Internet, address
the public, including patrons of public libraries, for little
more than the cost of Internet access.  As the Supreme Court
explained in Reno v. ACLU, 521 U.S. 844 (1997), "the Internet can
hardly be considered a 'scarce' expressive commodity.  It
provides relatively unlimited, low-cost capacity for
communication of all kinds."  Id. at 870.  Although the cost of a
home computer and Internet access considerably exceeds the cost
of a soapbox or a few hundred photocopies, speakers wishing to
avail themselves of the Internet may gain free access in schools,
workplaces, or the public library.  As Professor Lessig has
explained:
The "press" in 1791 was not the New York Times or the
Wall Street Journal.  It did not comprise large
organizations of private interests, with millions of
readers associated with each organization.  Rather, the
press then was much like the Internet today.  The cost
of a printing press was low, the readership was slight,
and anyone (within reason) could become a publisher –
and in fact an extraordinary number did.  When the
Constitution speaks of the rights of the "press," the
architecture it has in mind is the architecture of the
Internet.


Lawrence Lessig, Code 183 (1999).
While public libraries' provision of Internet access shares
many of the speech-promoting qualities of traditional public
fora, it also facilitates speech in ways that traditional public
fora cannot.   In particular, whereas the architecture of real
space limits the audience of a pamphleteer or soapbox orator to
people within the speaker's immediate vicinity, the Internet
renders the geography of speaker and listener irrelevant:
Through the use of chat rooms, any person with a phone
line can become a town crier with a voice that
resonates farther than it could from any soapbox.
Through the use of Web pages, mail exploders, and
newsgroups, the same individual can become a
pamphleteer.


Reno, 521 U.S. at 870 .  By providing patrons with Internet
access, public libraries in effect open their doors to an
unlimited number of potential speakers around the world, inviting
the speech of any member of the public who wishes to communicate
with library patrons via the Internet.
Due to the low costs for speakers and the irrelevance of
geography, the volume of speech available to library patrons on
the Internet is enormous and far exceeds the volume of speech
available to audiences in traditional public fora.  See id. at
868 (referring to "the vast democratic forums of the Internet").
 Indeed, as noted in our findings of fact, the Web is estimated
to contain over one billion pages, and is said to be growing at a
rate of over 1.5 million pages per day.  See id. at 885 (noting
"[t]he dramatic expansion of this new marketplace of ideas").
This staggering volume of content on the Internet "is as diverse
as human thought," id. at 870, and "is thus comparable, from the
reader's viewpoint, to . . . a vast library including millions of
readily available and indexed publications," id. at 853.  As a
result of the Internet's unique speech-facilitating qualities,
"it is hard to find an aspiring social movement, new or old, of
left, right, or center, without a website, a bulletin board, and
an email list."  Kreimer, supra n.27, at 125.  "[T]he growth of
the Internet has been and continues to be phenomenal."  Reno, 521
U.S. at 885.


This extraordinary growth of the Internet illustrates the
extent to which the Internet promotes First Amendment values in
the same way that the historical use of traditional public fora
for speaking, handbilling, and protesting testifies to their
effectiveness as vehicles for free speech.  Cf. Martin, 319 U.S.
at 145 ("The widespread use of this method of communication
[door-to-door distribution of leaflets] by many groups espousing
various causes attests its major importance."); Schneider v.
State, 308 U.S. 147, 164 (1939) ("[P]amphlets have proved most
effective instruments in the dissemination of opinion.").
The provision of Internet access in public libraries, in
addition to sharing the speech-enhancing qualities of fora such
as streets, sidewalks, and parks, also supplies many of the
speech-enhancing properties of the postal service, which is open
to the public at large as both speakers and recipients of
information, and provides a relatively low-cost means of
disseminating information to a geographically dispersed audience.
 See Lamont v. Postmaster Gen., 381 U.S. 301 (1965) (invalidating
a content-based prior restraint on the use of the mails); see
also Blount v. Rizzi, 400 U.S. 410 (1971) (same).  Indeed, the
Supreme Court's description of the postal system in Lamont seems
equally apt as a description of the Internet today: "the postal
system . . . is now the main artery through which the business,
social, and personal affairs of the people are conducted . . . ."
 381 U.S. at 305 n.3.


In short, public libraries, by providing their patrons with
access to the Internet, have created a public forum that provides
any member of the public free access to information from millions
of speakers around the world.  The unique speech-enhancing
character of Internet use in public libraries derives from the
openness of the public library to any member of the public
seeking to receive information, and the openness of the Internet
to any member of the public who wishes to speak.  In particular,
speakers on the Internet enjoy low barriers to entry and the
ability to reach a mass audience, unhindered by the constraints
of geography.   Moreover, just as the development of new media
"presents unique problems, which inform our assessment of the
interests at stake, and which may justify restrictions that would
be unacceptable in other contexts," United States v. Playboy
Entm't Group, Inc., 529 U.S. 803, 813 (2000), the development of
new media, such as the Internet, also presents unique
possibilities for promoting First Amendment values, which also
inform our assessment of the interests at stake, and which we
believe, in the context of the provision of Internet access in
public libraries, justify the application of heightened scrutiny
to content-based restrictions that might be subject to only
rational review in other contexts, such as the development of the
library's print collection.  Cf. id. at 818 ("Technology expands
the capacity to choose; and it denies the potential of this
revolution if we assume the Government is best positioned to make
these choices for us.").


A faithful translation of First Amendment values from the
context of traditional public fora such as sidewalks and parks to
the distinctly non-traditional public forum of Internet access in
public libraries requires, in our view, that content-based
restrictions on Internet access in public libraries be subject to
the same exacting standards of First Amendment scrutiny as
content-based restrictions on speech in traditional public fora
such as sidewalks, town squares, and parks:
The architecture of the Internet, as it is right now,
is perhaps the most important model of free speech
since the founding. . . .  Two hundred years after the
framers ratified the Constitution, the Net has taught
us what the First Amendment means. . . .  The model for
speech that the framers embraced was the model of the
Internet – distributed, noncentralized, fully free and
diverse.
Lessig, Code, at 167, 185.  Indeed, "[m]inds are not changed in
streets and parks as they once were.  To an increasing degree,
the more significant interchanges of ideas and shaping of public
consciousness occur in mass and electronic media."  Denver Area
Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 802-03
(1996) (Kennedy, J., concurring in the judgment).


In providing patrons with even filtered Internet access, a
public library is not exercising editorial discretion in
selecting only speech of particular quality for inclusion in its
collection, as it may do when it decides to acquire print
materials.  By providing its patrons with Internet access, public
libraries create a forum in which any member of the public may
receive speech from anyone around the world who wishes to
disseminate information over the Internet.  Within this "vast
democratic forum[]," Reno, 521 U.S. at 868, which facilitates
speech that is "as diverse as human thought," id. at 870,
software filters single out for exclusion particular speech on
the basis of its disfavored content.  We hold that these content-
based restrictions on patrons' access to speech are subject to
strict scrutiny.
4.        Application of Strict Scrutiny
Having concluded that strict scrutiny applies to public
libraries' content-based restrictions on patrons' access to
speech on the Internet, we must next determine whether a public
library's use of Internet software filters can survive strict
scrutiny.  To survive strict scrutiny, a restriction on speech
"must be narrowly tailored to promote a compelling Government
interest.  If a less restrictive alternative would serve the
Government's purpose, the legislature must use that alternative."
 United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813
(2000) (citation omitted); see also Fabulous Assocs., Inc. v. Pa.
Pub. Util. Comm'n, 896 F.2d 780, 787 (3d Cir. 1990) (holding that
a content-based burden on speech is permissible "only if [the
government] shows that the restriction serves a compelling
interest and that there are no less restrictive alternatives").
The application of strict scrutiny to a public library's use
of filtering products thus requires three distinct inquiries.
First, we must identify those compelling government interests
that the use of filtering software promotes.  It is then
necessary to analyze whether the use of software filters is
narrowly tailored to further those interests.  Finally, we must
determine whether less restrictive alternatives exist that would
promote the state interest.
1.        State Interests
We begin by identifying those legitimate state interests
that a public library's use of software filters promotes.


1.        Preventing the Dissemination of Obscenity, Child
Pornography, and Material Harmful to Minors

On its face, CIPA is clearly intended to prevent public
libraries' Internet terminals from being used to disseminate to
library patrons visual depictions that are obscene, child
pornography, or in the case of minors, harmful to minors.  See
CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(1)(A) & (B)), Sec.
1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(B) & (C)) (requiring
any library that receives E-rate discounts to certify that it is
enforcing "a policy of Internet safety that includes the
operation of a technology protection measure with respect to any
of its computers with Internet access that protects against
access through such computers to visual depictions" that are
"obscene" or "child pornography," and, when the computers are in
use by minors, also protects against access to visual depictions
that are "harmful to minors").


The government's interest in preventing the dissemination of
obscenity, child pornography, or, in the case of minors, material
harmful to minors, is well-established.  Speech that is obscene,
under the legal definition of obscenity set forth in the margin,
is unprotected under the First Amendment, and accordingly the
state has a compelling interest in preventing its distribution.
 See Miller v. California, 413 U.S. 15, 18 (1973) ("This Court
has recognized that the States have a legitimate interest in
prohibiting dissemination or exhibition of obscene material.");
Stanley v. Georgia, 394 U.S. 557, 563 (1969) ("[T]he First and
Fourteenth Amendments recognize a valid governmental interest in
dealing with the problem of obscenity."); Roth v. United States,
354 U.S. 476, 485 (1957) ("We hold that obscenity is not within
the area of constitutionally protected speech of press.").
The First Amendment also permits the state to prohibit the
distribution to minors of material that, while not obscene with
respect to adults, is obscene with respect to minors.  See
Ginsberg v. New York, 390 U.S. 629, 637 (1968) (holding that it
is constitutionally permissible "to accord minors under 17 a more
restricted right than that assured to adults to judge and
determine for themselves what sex material they may read or
see").  Proscribing the distribution of such material to minors
is constitutionally justified by the government's well-recognized
interest in safeguarding minors' well-being.  See Reno v. ACLU,
521 U.S. 844, 869-70 (1997) ("[T]here is a compelling interest in
protecting the physical and psychological well-being of minors
which extend[s] to shielding them from indecent messages that are
not obscene by adult standards . . . .") (internal quotation
marks and citation omitted); New York v. Ferber, 458 U.S. 747,
756-57 (1982) ("It is evident beyond the need for elaboration
that a State's interest in safeguarding the physical and
psychological well-being of a minor is compelling.") (internal
quotation marks and citation omitted); Ginsberg, 390 U.S. at 640
("The State . . . has an independent interest in the well-being
of its youth.").


The government's compelling interest in protecting the well-
being of its youth justifies laws that criminalize not only the
distribution to minors of material that is harmful to minors, but
also the possession and distribution of child pornography.
See Osborne v. Ohio, 495 U.S. 103, 111 (1990) (holding that a
state "may constitutionally proscribe the possession and viewing
of child pornography"); Ferber, 458 U.S. at 757, 763 (noting that
"[t]he prevention of sexual exploitation and abuse of children
constitutes a government objective of surpassing importance," and
holding that "child pornography [is] a category of material
outside the protection of the First Amendment").
Thus, a public library's use of software filters survives
strict scrutiny if it is narrowly tailored to further the state's
well-recognized interest in preventing the dissemination of
obscenity and child pornography, and in preventing minors from
being exposed to material harmful to their well-being.
2.        Protecting the Unwilling Viewer
Several of the libraries that use filters assert that
filters serve the libraries' interest in preventing patrons from
being unwillingly exposed to sexually explicit speech that the
patrons find offensive.  Nearly every library proffered by either
the government or the plaintiffs received complaints, in varying
degrees of frequency, from library patrons who saw other patrons
accessing sexually explicit material on the library's Internet
terminals.


In general, First Amendment jurisprudence is reluctant to
recognize a legitimate state interest in protecting the unwilling
viewer from speech that is constitutionally protected.  "Where
the designed benefit of a content-based speech restriction is to
shield the sensibilities of listeners, the general rule is that
the right of expression prevails, even where no less restrictive
alternative exists.  We are expected to protect our own
sensibilities simply by averting our eyes."  Playboy, 529 U.S. at
813 (2000) (internal quotation marks and citation omitted); see
also Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975)
("[W]hen the government, acting as censor, undertakes selectively
to shield the public from some kinds of speech on the ground that
they are more offensive than others, the First Amendment strictly
limits its power.").
For example, in Cohen v. California, 403 U.S. 15 (1971), the
Supreme Court reversed defendant's conviction for wearing, in a
municipal courthouse, a jacket bearing the inscription "Fuck the
Draft."  The Court noted that "much has been made of the claim
that Cohen's distasteful mode of expression was thrust upon
unwilling or unsuspecting viewers, and that the State might
therefore legitimately act as it did in order to protect the
sensitive from otherwise unavoidable exposure to appellant's
crude form of protest."  Id. at 21.  This justification for
suppressing speech failed, however, because it "would effectively
empower a majority to silence dissidents simply as a matter of
personal predilections."  Id.  The Court concluded that "[t]hose
in the Los Angeles courthouse could effectively avoid further
bombardment of their sensibilities simply by averting their
eyes."  Id.


Similarly, in Erznoznik, the Court invalidated on its face a
municipal ordinance prohibiting drive-in movie theaters from
showing films containing nudity if they were visible from a
public street or place.  The city's "primary argument [was] that
it may protect its citizens against unwilling exposure to
materials that may be offensive."  422 U.S. at 208.  The Court
soundly rejected this interest in shielding the unwilling viewer:
The plain, if at times disquieting, truth is that in
our pluralistic society, constantly proliferating new
and ingenious forms of expression, we are inescapably
captive audiences for many purposes.  Much that we
encounter offends our esthetic, if not our political
and moral, sensibilities.  Nevertheless, the
Constitution does not permit government to decide which
types of otherwise protected speech are sufficiently
offensive to require protection for the unwilling
listener or viewer.  Rather, absent . . . narrow
circumstances . . . the burden normally falls upon the
viewer to avoid further bombardment of his
sensibilities simply by averting his eyes.

422 U.S. at 210-11 (internal quotation marks and citation
omitted).
The state's interest in protecting unwilling viewers from
exposure to patently offensive material is accounted for, to some
degree, by obscenity doctrine, which originated in part to permit
the state to shield the unwilling viewer.  "The Miller standard,
like its predecessors, was an accommodation between the State's
interests in protecting the sensibilities of unwilling recipients
from exposure to pornographic material and the dangers of
censorship inherent in unabashedly content-based laws."  Ferber,
458 U.S. at 756 (internal quotation marks and citation omitted);
see also Miller, 413 U.S. at 18-19 ("This Court has recognized
that the States have a legitimate interest in prohibiting
dissemination or exhibition of obscene material when the mode of
dissemination carries with it a significant danger of offending
the sensibilities of unwilling recipients or of exposure to
juveniles.") (citation omitted).  To the extent that speech has
serious literary, artistic, political, or scientific value, and
therefore is not obscene under the Miller test of obscenity, the
state's interest in shielding unwilling viewers from such speech
is tenuous.


Nonetheless, the Court has recognized that in certain
limited circumstances, the state has a legitimate interest in
protecting the public from unwilling exposure to speech that is
not obscene.  This interest has justified restrictions on speech
"when the speaker intrudes on the privacy of the home, or the
degree of captivity makes it impractical for the unwilling viewer
or auditor to avoid exposure."  Erznoznik, 422 U.S. at 209
(citations omitted).  Thus, in FCC v. Pacifica Foundation, 438
U.S. 726 (1978), the Court relied on the state's interest in
shielding viewers' sensibilities to uphold a prohibition against
profanity in radio broadcasts:
Patently offensive, indecent material presented over
the airwaves confronts the citizen, not only in public,
but also in the privacy of the home, where the
individual's right to be left alone plainly outweighs
the First Amendment rights of an intruder.  Because the
broadcast audience is constantly tuning in and out,
prior warnings cannot completely protect the listener
or viewer from unexpected program content.

Id. at 748 (citation omitted); accord Frisby v. Schultz, 487 U.S.
474, 485 (1988) ("Although in many locations, we expect
individuals simply to avoid speech they do not want to hear, the
home is different."); see also Lehman v. City of Shaker Heights,
418 U.S. 298, 302 (1974) (plurality opinion) (upholding a
content-based restriction on the sale of advertising space in
public transit vehicles and noting that "[t]he streetcar audience
is a captive audience").


Although neither the Supreme Court nor the Third Circuit has
recognized a compelling state interest in shielding the
sensibilities of unwilling viewers, beyond laws intended to
preserve the privacy of individuals' homes or to protect captive
audiences, we do not read the case law as categorically
foreclosing recognition, in the public library setting, of the
state's interest in protecting unwilling viewers.  See Pacifica,
438 U.S. at 749 n.27 ("Outside the home, the balance between the
offensive speaker and the unwilling audience may sometimes tip in
favor of the speaker, requiring the offended listener to turn
away.") (emphasis added).  Under certain circumstances, therefore
a public library might have a compelling interest in protecting
library patrons and staff from unwilling exposure to sexually
explicit speech that, although not obscene, is patently
offensive.
3.        Preventing Unlawful or Inappropriate Conduct
Several of the librarians proffered by the government
testified that unfiltered Internet access had led to occurrences
of criminal or otherwise inappropriate conduct by library
patrons, such as public masturbation, and harassment of library
staff and patrons, sometimes rising to the level of physical
assault.  As in the case with patron complaints, however, the
government adduced no quantitative data comparing the frequency
of criminal or otherwise inappropriate patron conduct before the
library's use of filters and after the library's use of filters.
 The sporadic anecdotal accounts of the government's library
witnesses were countered by anecdotal accounts by the plaintiffs'
library witnesses, that incidents of offensive patron behavior in
public libraries have long predated the advent of Internet
access.


Aside from a public library's interest in preventing patrons
from using the library's Internet terminals to receive obscenity
or child pornography, which constitutes criminal conduct, we are
constrained to reject any compelling state interest in regulating
patrons' conduct as a justification for content-based
restrictions on patrons' Internet access.  "[T]he Court's First
Amendment cases draw vital distinctions between words and deeds,
between ideas and conduct."  Ashcroft, 122 S. Ct. at 1403.  First
Amendment jurisprudence makes clear that speech may not be
restricted on the ground that restricting speech will reduce
crime or other undesirable behavior that the speech is thought to
cause, subject to only a narrow exception for speech that "is
directed to inciting or producing imminent lawless action and is
likely to incite or produce such action."  Brandenburg v. Ohio,
395 U.S. 444, 447 (1969) (per curiam).  "The mere tendency of
speech to encourage unlawful acts is insufficient reason for
banning it."  Ashcroft, 122 S. Ct. at 1403.
Outside of the narrow "incitement" exception, the
appropriate method of deterring unlawful or otherwise undesirable
behavior is not to suppress the speech that induces such
behavior, but to attach sanctions to the behavior itself.  "Among
free men, the deterrents ordinarily to be applied to prevent
crime are education and punishment for violations of the law, not
abridgement of the rights of free speech."  Kingsley Int'l
Pictures Corp. v. Regents of the Univ. of the State of New York,
360 U.S. 684, 689 (1959) (quoting Whitney v. Cal., 274 U.S. 357,
378 (1927) (Brandeis, J., concurring)); see also Bartnicki v.
Vopper, 532 U.S. 514, 529 (2001) ("The normal method of deterring
unlawful conduct is to impose an appropriate punishment on the
person who engages in it.").


4.        Summary
In sum, we reject a public library's interest in preventing
unlawful or otherwise inappropriate patron conduct as a basis for
restricting patrons' access to speech on the Internet.  The
proper method for a library to deter unlawful or inappropriate
patron conduct, such as harassment or assault of other patrons,
is to impose sanctions on such conduct, such as either removing
the patron from the library, revoking the patron's library
privileges, or, in the appropriate case, calling the police.  We
believe, however, that the state interests in preventing the
dissemination of obscenity, child pornography, or in the case of
minors, material harmful to minors, and in protecting library
patrons from being unwillingly exposed to offensive, sexually
explicit material, could all justify, for First Amendment
purposes, a public library's use of Internet filters, provided
that use of such filters is narrowly tailored to further those
interests, and that no less restrictive means of promoting those
interests exist.  Accordingly, we turn to the narrow tailoring
question.
2.        Narrow Tailoring


Having identified the relevant state interests that could
justify content-based restrictions on public libraries' provision
of Internet access, we must determine whether a public library's
use of software filters is narrowly tailored to further those
interests.  "It is not enough to show that the Government's ends
are compelling; the means must be carefully tailored to achieve
those ends."  Sable Communications of Cal., Inc. v. FCC, 492 U.S.
115, 126 (1989).  "[M]anifest imprecision of [a] ban . . .
reveals that its proscription is not sufficiently tailored to the
harms it seeks to prevent to justify . . . substantial
interference with . . . speech."  FCC v. League of Women Voters
of Cal., 468 U.S. 364, 392 (1984).
The commercially available filters on which evidence was
presented at trial all block many thousands of Web pages that are
clearly not harmful to minors, and many thousands more pages
that, while possibly harmful to minors, are neither obscene nor
child pornography.  See supra, Subsection II.E.7.  Even the
defendants' own expert, after analyzing filtering products'
performance in public libraries, concluded that of the blocked
Web pages to which library patrons sought access, between 6% and
15% contained no content that meets even the filtering products'
own definitions of sexually explicit content, let alone the legal
definitions of obscenity or child pornography, which none of the
filtering companies that were studied use as the basis for their
blocking decisions.  Moreover, in light of the flaws in these
studies, discussed in detail in our findings of fact above, these
percentages significantly underestimate the amount of speech that
filters erroneously block, and at best provide a rough lower
bound on the filters' rates of overblocking.  Given the
substantial amount of constitutionally protected speech blocked
by the filters studied, we conclude that use of such filters is
not narrowly tailored with respect to the government's interest
in preventing the dissemination of obscenity, child pornography,
and material harmful to minors.


To be sure, the quantitative estimates of the rates of
overblocking apply only to those four commercially available
filters analyzed by plaintiffs' and defendants' expert witnesses.
 Nonetheless, given the inherent limitations in the current state
of the art of automated classification systems, and the limits of
human review in relation to the size, rate of growth, and rate of
change of the Web, there is a tradeoff between underblocking and
overblocking that is inherent in any filtering technology, as our
findings of fact have demonstrated.  We credit the testimony of
plaintiffs' expert witness, Dr. Geoffrey Nunberg, that no
software exists that can automatically distinguish visual
depictions that are obscene, child pornography, or harmful to
minors, from those that are not.  Nor can software, through
keyword analysis or more sophisticated techniques, consistently
distinguish web pages that contain such content from web pages
that do not.


In light of the absence of any automated method of
classifying Web pages, filtering companies are left with the
Sisyphean task of using human review to identify, from among the
approximately two billion web pages that exist, the 1.5 million
new pages that are created daily, and the many thousands of pages
whose content changes from day to day, those particular web pages
to be blocked.  To cope with the Web's extraordinary size, rate
of growth, and rate of change, filtering companies that rely
solely on human review to block access to material falling within
their category definitions must use a variety of techniques that
will necessarily introduce substantial amounts of overblocking.
These techniques include blocking every page of a Web site that
contains only some content falling within the filtering
companies' category definitions, blocking every Web site that
shares an IP-address with a Web site whose content falls within
the category definitions, blocking "loophole sites," such as
anonymizers, cache sites, and translation sites, and allocating
staff resources to reviewing content of uncategorized pages
rather than re-reviewing pages, domain names, or IP-addresses
that have been already categorized to determine whether their
content has changed.  While a filtering company could choose not
to use these techniques, due to the overblocking errors they
introduce, if a filtering company does not use such techniques,
its filter will be ineffective at blocking access to speech that
falls within its category definitions.
Thus, while it would be easy to design, for example, a
filter that blocks only ten Web sites, all of which are either
obscene, child pornography, or harmful to minors, and therefore
completely avoids overblocking, such a filter clearly would not
comply with CIPA, since it would fail to offer any meaningful
protection against the hundreds of thousands of Web sites
containing speech in these categories.  As detailed in our
findings of fact, any filter that blocks enough speech to protect
against access to visual depictions that are obscene, child
pornography, and harmful to minors, will necessarily overblock
substantial amounts of speech that does not fall within these
categories.


This finding is supported by the government's failure to
produce evidence of any filtering technology that avoids
overblocking a substantial amount of protected speech.  Where, as
here, strict scrutiny applies to a content-based restriction on
speech, the burden rests with the government to show that the
restriction is narrowly tailored to serve a compelling government
interest.  See Playboy, 529 U.S. at 816 ("When the Government
restricts speech, the Government bears the burden of proving the
constitutionality of its actions."); see also R.A.V. v. City of
St. Paul, 505 U.S. 377, 382 (1992) ("Content-based regulations
are presumptively invalid.").  Thus, it is the government's
burden, in this case, to show the existence of a filtering
technology that both blocks enough speech to qualify as a
technology protection measure, for purposes of CIPA, and avoids
overblocking a substantial amount of constitutionally protected
speech.
Here, the government has failed to meet its burden.  Indeed,
as discussed in our findings of fact, every technology protection
measure used by the government's library witnesses or analyzed by
the government's expert witnesses blocks access to a substantial
amount of speech that is constitutionally protected with respect
to both adults and minors.  In light of the credited testimony of
Dr. Nunberg, and the inherent tradeoff between overblocking and
underblocking, together with the government's failure to offer
evidence of any technology protection measure that avoids
overblocking, we conclude that any technology protection measure
that blocks a sufficient amount of speech to comply with CIPA's
requirement that it "protect[] against access through such
computers to visual depictions that are – (I) obscene; (II) child
pornography; or (III) harmful to minors" will necessarily block
substantial amounts of speech that does not fall within these
categories.  CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(1)(A)).
 Hence, any public library's use of a software filter required by
CIPA will fail to be narrowly tailored to the government's
compelling interest in preventing the dissemination, through
Internet terminals in public libraries, of visual depictions that
are obscene, child pornography, or harmful to minors.


Where, as here, strict scrutiny applies, the government may
not justify restrictions on constitutionally protected speech on
the ground that such restrictions are necessary in order for the
government effectively to suppress the dissemination of
constitutionally unprotected speech, such as obscenity and child
pornography.  "The argument . . . that protected speech may be
banned as a means to ban unprotected speech . . . . turns the
First Amendment upside down.  The Government may not suppress
lawful speech as the means to suppress unlawful speech."
Ashcroft, 122 S. Ct. at 1404.  This rule reflects the judgment
that "[t]he possible harm to society in permitting some
unprotected speech to go unpunished is outweighed by the
possibility that protected speech of others may be muted . . . ."
 Broadrick v. Oklahoma, 413 U.S. at 612.


Thus, in Ashcroft, the Supreme Court rejected the
government's argument that a statute criminalizing the
distribution of constitutionally protected "virtual" child
pornography, produced through computer imaging technology without
the use of real children, was necessary to further the state's
interest in prosecuting the dissemination of constitutionally
unprotected child pornography produced using real children, since
"the possibility of producing images by using computer imaging
makes it very difficult for [the government] to prosecute those
who produce pornography using real children."  Ashcroft, 122 S.
Ct. at 1404; see also Stanley, 394 U.S. at 567-58 (holding that
individuals have a First Amendment right to possess obscene
material, even though the existence of this right makes it more
difficult for the states to further their legitimate interest in
prosecuting the distribution of obscenity).  By the same token,
even if the use of filters is effective in preventing patrons
from receiving constitutionally unprotected speech, the
government's interest in preventing the dissemination of such
speech cannot justify the use of the technology protection
measures mandated by CIPA, which necessarily block substantial
amounts of constitutionally protected speech.


CIPA thus resembles the Communications Decency Act, which
the Supreme Court facially invalidated in Reno v. ACLU, 521 U.S.
844 (1997).  Although on its face, the CDA simply restricted the
distribution to minors of speech that was constitutionally
unprotected with respect to minors, as a practical matter, given
Web sites' difficulties in identifying the ages of Internet
users, the CDA effectively prohibited the distribution to adults
of material that was constitutionally protected with respect to
adults.   Similarly, although on its face, CIPA, like the CDA,
requires the suppression of only constitutionally unprotected
speech,  it is impossible as a practical matter, given the state
of the art of filtering technology, for a public library to
comply with CIPA without also blocking significant amounts of
constitutionally protected speech.  We therefore hold that a
library's use of a technology protection measure required by CIPA
is not narrowly tailored to the government's legitimate interest
in preventing the dissemination of visual depictions that are
obscene, child pornography, or in the case of minors, harmful to
minors.
For the same reason that a public library's use of software
filters is not narrowly tailored to further the library's
interest in preventing its computers from being used to
disseminate visual depictions that are obscene, child
pornography, and harmful to minors, a public library's use of
software filters is not narrowly tailored to further the
library's interest in protecting patrons from being unwillingly
exposed to offensive, sexually explicit material.  As discussed
in our findings of fact, the filters required by CIPA block
substantial numbers of Web sites that even the most puritanical
public library patron would not find offensive, such as
http://federo.com, a Web site that promotes federalism in Uganda,
which N2H2 blocked as "Adults Only, Pornography," and
http://www.vvm.com/~bond/home.htm, a site for aspiring dentists,
which was blocked by Cyberpatrol as "Adult/Sexually Explicit."
We list many more such examples in our findings of fact, see
supra, and find that such erroneously blocked sites number in at
least the thousands.


Although we have found large amounts of overblocking, even
if only a small percentage of sites blocked are erroneously
blocked, either with respect to the state's interest in
preventing adults from viewing material that is obscene or child
pornography and in preventing minors from viewing material that
is harmful to minors, or with respect to the state's interest in
preventing library patrons generally from being unwillingly
exposed to offensive, sexually explicit material, this
imprecision is fatal under the First Amendment.  Cf. Reno, 521
U.S. at 874 ("[T]he CDA lacks the precision that the First
Amendment requires when a statute regulates the content of
speech."); League of Women Voters, 468 U.S. at 398 ("[E]ven if
some of the hazards at which [the challenged provision] was aimed
are sufficiently substantial, the restriction is not crafted with
sufficient precision to remedy those dangers that may exist to
justify the significant abridgement of speech worked by the
provision's broad ban . . . .").


While the First Amendment does not demand perfection when
the government restricts speech in order to advance a compelling
interest, the substantial amounts of erroneous blocking inherent
in the technology protection measures mandated by CIPA are more
than simply de minimis instances of human error.  "The line
between speech unconditionally guaranteed and speech which may
legitimately be regulated, suppressed, or punished is finely
drawn.  Error in marking that line exacts an extraordinary cost."
 Playboy, 529 U.S. at 817 (internal quotation marks and citation
omitted).  Indeed, "precision of regulation must be the
touchstone in an area so closely touching our most precious
freedoms."  Keyishian v. Bd. of Regents of the Univ. of the State
of N.Y., 385 U.S. 589, 603 (1967) (internal quotation marks and
citation omitted); see also Bantam Books, Inc. v. Sullivan, 372
U.S. 58, 66 (1963) ("The separation of legitimate from
illegitimate speech calls for sensitive tools.") (internal
quotation marks and citation omitted).  Where the government
draws content-based restrictions on speech in order to advance a
compelling government interest, the First Amendment demands the
precision of a scalpel, not a sledgehammer.  We believe that a
public library's use of the technology protection measures
mandated by CIPA is not narrowly tailored to further the
governmental interests at stake.
Although the strength of different libraries' interests in
blocking certain forms of speech may vary from library to
library, depending on the frequency and severity of problems
experienced by each particular library, we conclude, based on our
findings of fact, that any public library's use of a filtering
product mandated by CIPA will necessarily fail to be narrowly
tailored to address the library's legitimate interests.  Because
it is impossible for a public library to comply with CIPA without
blocking substantial amounts of speech whose suppression serves
no legitimate state interest, we therefore hold that CIPA is
facially invalid, even under the more stringent standard of
facial invalidity urged on us by the government, which would
require upholding CIPA if it is possible for just a single
library to comply with CIPA's conditions without violating the
First Amendment.  See supra Part III.
3.        Less Restrictive Alternatives


The constitutional infirmity of a public library's use of
software filters is evidenced not only by the absence of narrow
tailoring, but also by the existence of less restrictive
alternatives that further the government's legitimate interests.
 See Playboy, 529 U.S. at 813 ("If a less restrictive alternative
would serve the Government's purpose, the legislature must use
that alternative."); Sable, 492 U.S. at 126 ("The Government may
. . . regulate the content of constitutionally protected speech
in order to promote a compelling interest if it chooses the least
restrictive means to further the articulated interest.").
As is the case with the narrow tailoring requirement, the
government bears the burden of proof in showing the
ineffectiveness of less restrictive alternatives.  "When a
plausible, less restrictive alternative is offered to a content-
based speech restriction, it is the Government's obligation to
prove that the alternative will be ineffective to achieve its
goals."  Playboy, 529 U.S. at 816; see also Reno, 521 U.S. at 879
("The breadth of this content-based restriction of speech imposes
an especially heavy burden on the Government to explain why a
less restrictive provision would not be as effective . . . .");
Fabulous Assocs., Inc. v. Pa. Pub. Util. Comm'n, 896 F.2d 780,
787 (3d Cir. 1990) ("We focus . . . on the more difficult
question whether the Commonwealth has borne its heavy burden of
demonstrating that the compelling state interest could not be
served by restrictions that are less intrusive on protected forms
of expression.") (internal quotation marks and citation omitted).



We find that there are plausible, less restrictive
alternatives to the use of software filters that would serve the
government's interest in preventing the dissemination of
obscenity and child pornography to library patrons.  In
particular, public libraries can adopt Internet use policies that
make clear to patrons that the library's Internet terminals may
not be used to access illegal content.  Libraries can ensure that
their patrons are aware of such policies by posting them in
prominent places in the library, requiring patrons to sign forms
agreeing to comply with the policy before the library issues
library cards to patrons, and by presenting patrons, when they
log on to one of the library's Internet terminals, with a screen
that requires the user to agree to comply with the library's
policy before allowing the user access to the Internet.
Libraries can detect violations of their Internet use
policies either through direct observation or through review of
the library's Internet use logs.  In some cases, library staff or
patrons may directly observe a patron accessing obscenity and
child pornography.  Libraries' Internet use logs, however, also
provide libraries with a means of detecting violations of their
Internet use policies.  These logs, which can be kept regardless
whether a library uses filtering software, record the URL of
every Web page accessed by patrons.  Although ordinarily the logs
do not link particular URLs with particular patrons, it is
possible, using access logs, to identify the patron who viewed
the Web page corresponding to a particular URL, if library staff
discover in the access logs the URL of a Web page containing
obscenity or child pornography.  For example, David Biek,
Director of Tacoma Public Library's main branch, testified that
in the course of scanning Internet use logs he has found what
looked like attempts to access child pornography, notwithstanding
the fact that Tacoma uses Websense filtering software.  In two
cases, he communicated his findings to law enforcement and turned
over the logs to law enforcement in response to a subpoena.


Once a violation of a library's Internet use policy is
detected through the methods described above, a library may
either issue the patron a warning, revoke the patron's Internet
privileges, or notify law enforcement, if the library believes
that the patron violated either state obscenity laws or child
pornography laws.  Although these methods of detecting use of
library computers to access illegal content are not perfect, and
a library, out of respect for patrons' privacy, may choose not to
adopt such policies, the government has failed to show that such
methods are substantially less effective at preventing patrons
from accessing obscenity and child pornography than software
filters.  As detailed in our findings of fact, the underblocking
that results from the size, rate of change, and rate of growth of
the Internet significantly impairs the software filters from
preventing patrons from accessing obscenity and child
pornography.  Unless software filters are themselves perfectly
effective at preventing patrons from accessing obscenity and
child pornography, "[i]t is no response that [a less restrictive
alternative] . . . may not go perfectly every time."  Playboy,
529 U.S. at 824; cf. Denver Area Educ. Telecomm. Consortium, Inc.
v. FCC, 518 U.S. 727, 759 (1996) ("No provision . . . short of an
absolute ban, can offer certain protection against assault by a
determined child.").


The government has not offered any data comparing the
frequency with which obscenity and child pornography is accessed
at libraries that enforce their Internet use policies through
software filters with the frequency with which obscenity and
child pornography is accessed at public libraries that enforce
their Internet use policies through methods other than software
filters.  Although the government's library witnesses offered
anecdotal accounts of a reduction in the use of library computers
to access sexually explicit speech when filtering software was
mandated, these anecdotal accounts are not a substitute for more
robust analyses comparing the use of library computers to access
child pornography and material that meets the legal definition of
obscenity in libraries that use blocking software and in
libraries that use alternative methods.  Cf.  Playboy, 529 U.S.
at 822 ("[T]he Government must present more than anecdote and
supposition.").


We acknowledge that some library staff will be uncomfortable
using the "tap-on-the-shoulder" method of enforcing the library's
policy against using Internet terminals to access obscenity and
child pornography.  The Greenville County Library, for example,
experienced high turnover among library staff when staff were
required to enforce the library's Internet use policy through the
tap-on-the-shoulder technique.  Given filters' inevitable
underblocking, however, even a library that uses filtering will
have to resort to a tap-on-the-shoulder method of enforcement,
where library staff observes a patron openly violating the
library's Internet use policy, by, for example, accessing
material that is obviously child pornography but that the
filtering software failed to block.  Moreover, a library
employee's degree of comfort in using the tap-on-the-shoulder
method will vary from employee to employee, and there is no
evidence that it is impossible or prohibitively costly for public
libraries to hire at least some employees who are comfortable
enforcing the library's Internet use policy.
We also acknowledge that use of a tap on the shoulder
delegates to librarians substantial discretion to determine which
Web sites a patron may view.  Nonetheless, we do not believe that
this putative "prior restraint" problem can be avoided through
the use of software filters, for they effectively delegate to the
filtering company the same unfettered discretion to determine
which Web sites a patron may view.  Moreover, as noted above,
violations of a public library's Internet use policy may be
detected not only by direct observation, but also by reviewing
the library's Internet use logs after the fact, which alleviates
the need for library staff to directly confront patrons while
they are viewing obscenity or child pornography.


Similar less restrictive alternatives exist for preventing
minors from accessing material harmful to minors.  First,
libraries may use the tap-on-the-shoulder method when minors are
observed using the Internet to access material that is harmful to
minors.  Requiring minors to use specific terminals, for example
in a children's room, that are in direct view of library staff
will increase the likelihood that library staff will detect
minors' use of the Internet to access material harmful to minors.
 Alternatively, public libraries could require minors to use
blocking software only if they are unaccompanied by a parent, or
only if their parent consents in advance to their child's
unfiltered use of the Internet.   "A court should not assume
that a plausible, less restrictive alternative would be
ineffective; and a court should not presume parents, given full
information, will fail to act."  Playboy, 529 U.S. at 824.
In contrast to the "harmful to minors" statute upheld in
Ginsberg v. New York, 390 U.S. 629 (1968), which permitted
parents to determine whether to provide their children with
access to material otherwise prohibited by the statute, CIPA,
like the Communications Decency Act, which the Court invalidated
in Reno, contains no exception for parental consent:
[W]e noted in Ginsberg that "the prohibition against
sales to minors does not bar parents who so desire from
purchasing the magazines for their children."  Under
the CDA, by contrast, neither the parents' consent –
nor even their participation – in the communication
would avoid the application of the statute.

Reno, 521 U.S. at 865 (citation omitted); see also Ginsberg, 390
U.S. at 639 ("It is cardinal with us that the custody, care, and
nurture of the child reside first in the parents, whose primary
function and freedom include preparation for obligations the
state can neither supply nor hinder." (quoting Prince v.
Massachusetts, 321 U.S. 158, 166 (1944))).


The Court in Playboy acknowledged that although a regime of
permitting parents voluntarily to block cable channels containing
sexually explicit programming might not be a completely effective
alternative to the challenged law, which effectively required
cable operators to transmit sexually explicit programming only
during particular hours, the challenged law itself was not
completely effective in serving the government's interest:
There can be little doubt, of course, that under a
voluntary blocking regime, even with adequate notice,
some children will be exposed to signal bleed; and we
need not discount the possibility that a graphic image
could have a negative impact on a young child.  It must
be remembered, however, that children will be exposed
to signal bleed under time channeling as well. . . .
The record is silent as to the comparative
effectiveness of the two alternatives.

Playboy, 529 U.S. at 826.  Similarly, in this case, the
government has offered no evidence comparing the effectiveness of
blocking software and alternative methods used by public
libraries to protect children from material harmful to minors.
Finally, there are other less restrictive alternatives to
filtering software that further public libraries' interest in
preventing patrons from unwillingly being exposed to patently
offensive, sexually explicit content on the Internet.  To the
extent that public libraries are concerned with protecting
patrons from accidentally encountering such material while using
the Internet, public libraries can provide patrons with guidance
in finding the material they want and avoiding unwanted material.
 Some public libraries also offer patrons the option of using
filtering software, if they so desire.  Cf. Rowan v. Post Office
Dept., 397 U.S. 728 (1970) (upholding a federal statute
permitting individuals to instruct the Postmaster General not to
deliver advertisements that are "erotically arousing or sexually
provocative").


With respect to protecting library patrons from sexually
explicit content viewed by other patrons, public libraries have
used a variety of less restrictive methods.  One alternative is
simply to segregate filtered from unfiltered terminals, and to
place unfiltered terminals outside of patrons' sight-lines and
areas of heavy traffic.  Even the less restrictive alternative of
allowing unfiltered access on only a single terminal, well out of
the line of sight of other patrons, however, is not permitted
under CIPA, which requires the use of a technology protection
measure on every computer in the library.  See CIPA Sec.
1721(b)(6)(C) (codified at 47 U.S.C. Sec. 254(h)(6)(C)), CIPA Sec. 1712
(codified at 20 U.S.C. Sec. 9134(f)(1)(A)) (requiring a public
library receiving E-rate discounts or LSTA grants to certify that
it "has in place a policy of Internet safety that includes the
operation of a technology protection measure with respect to any
of its computers with Internet access . . . ." (emphasis added));
 In re Federal-State Joint Board on Universal Service: Children's
Internet Protection Act, CC Docket No. 96-45, Report and Order,
FCC 01-120,  30 (Apr. 5, 2001)  ("CIPA makes no distinction
between computers used only by staff and those accessible to the
public.").


Alternatively, libraries can use privacy screens or recessed
monitors to prevent patrons from unwillingly being exposed to
material viewed by other patrons.  We acknowledge that privacy
screens and recessed monitors suffer from imperfections as
alternatives to filtering.  Both impose costs on the library,
particularly recessed monitors, which, according to the
government's library witnesses, are expensive.  Moreover, some
libraries have experienced problems with patrons attempting to
remove the privacy screens.  Privacy screens and recessed
monitors also make it difficult for more than one person to work
at the same terminal.
These problems, however, are not insurmountable.  While
there is no doubt that privacy screens and recessed terminals
impose additional costs on libraries, the government has failed
to show that the cost of privacy screens or recessed terminals is
substantially greater than the cost of filtering software and the
resources needed to maintain such software.  Nor has the
government shown that the cost of these alternatives is so high
as to make their use prohibitive.  With respect to the problem of
patrons removing privacy screens, we find, based on the
successful use of privacy screens by the Fort Vancouver Regional
Library and the Multnomah County Public Library, that it is
possible for public libraries to prevent patrons from removing
the screens.  Although privacy screens may make it difficult for
patrons to work at the same terminal side by side with other
patrons or with library staff, a library could provide filtered
access at terminals that lack privacy screens, when patrons wish
to use a terminal with others.  Alternatively, a library can
reserve terminals outside of patrons' sight lines for groups of
patrons who wish unfiltered access.


We therefore conclude that the government has failed to show
that the less restrictive alternatives discussed above are
ineffective at furthering the government's interest either in
preventing patrons from using library computers to access visual
depictions that are obscene, child pornography, or in the case of
minors, harmful to minors, or in preventing library patrons from
being unwillingly exposed to patently offensive, sexually
explicit speech.
4.        Do CIPA's Disabling Provisions Cure the Defect?
The Government argues that even if the use of software
filters mandated by CIPA blocks a substantial amount of speech
whose suppression serves no legitimate state interest, and
therefore fails strict scrutiny's narrow tailoring requirement,
CIPA's disabling provisions cure any lack of narrow tailoring
inherent in filtering technology.  The disabling provision
applicable to libraries receiving LSTA grants states that "[a]n
administrator, supervisor, or other authority may disable a
technology protection measure . . . to enable access for bona
fide research or other lawful purposes."  CIPA Sec. 1712(a)(2)
(codified at 20 U.S.C. Sec. 9134(f)(3)).  CIPA's disabling provision
with respect to libraries receiving E-rate discounts similarly
states that "[a]n administrator, supervisor, or other person
authorized by the certifying authority . . . may disable the
technology protection measure concerned, during use by an adult,
to enable access for bona fide research or other lawful purpose."
 CIPA Sec. 1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(D)).


To determine whether the disabling provisions cure CIPA's
lack of narrow tailoring, we must first determine, as a matter of
statutory construction, under what circumstances the disabling
provisions permit libraries to disable the software filters.
It is unclear to us whether CIPA's disabling provisions permit
libraries to disable the filters any time a patron wishes to
access speech that is neither obscenity, child pornography, or in
the case of a minor patron, material that is harmful to minors.
Whether CIPA permits disabling in such instances depends on the
meaning of the provisions' reference to "bona fide research or
other lawful purpose."  On the one hand, the language "to enable
access for bona fide research or other lawful purpose" could be
interpreted to mean "to enable access to all constitutionally
protected material."  As a textual matter, this reading of the
disabling provisions is plausible.  If a patron seeks access to
speech that is constitutionally protected, then it is reasonable
to conclude that the patron has a "lawful purpose," since the
dissemination and receipt of constitutionally protected speech
cannot be made unlawful.


Moreover, since a narrower construction of the disabling
provision creates more constitutional problems than a
construction of the disabling provisions that permits access to
all constitutionally protected speech, the broader interpretation
is preferable.  "[I]f an otherwise acceptable construction of a
statute would raise serious constitutional problems, and where an
alternative interpretation of the statute is fairly possible, we
are obligated to construe the statute to avoid such problems."
INS v. St. Cyr, 121 S. Ct. 2271, 2279 (2001) (internal quotation
marks and citations omitted).  On the other hand, interpreting
CIPA's disabling provisions to permit disabling for access to all
constitutionally protected speech presents several problems.
First, if "other lawful purpose" means "for the purpose of
accessing constitutionally protected speech," then this reading
renders superfluous CIPA's reference to "bona fide research,"
which clearly contemplates some purpose beyond simply accessing
constitutionally protected speech.  In general, "courts should
disfavor interpretations of statutes that render language
superfluous." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253
(1992).
Furthermore, Congress is clearly capable of explicitly
specifying categories of constitutionally unprotected speech, as
it did when it drafted CIPA to require funding recipients to use
technology protection measures that protect against visual
depictions that are "obscene," "child pornography," or, in the
case of minors, "harmful to minors."  CIPA Sec. 1712(a) (codified at
20 U.S.C. Sec. 9134(f)(1)(A)(i)(I)-(III)); CIPA Sec. 1721(b) (codified
at 47 U.S.C. Sec. 254(h)(6)(B)(i)(I)-(III)).  If Congress intended
CIPA's disabling provisions simply to permit libraries to disable
the filters to allow access to speech falling outside of these
categories, Congress could have drafted the disabling provisions
with greater precision, expressly permitting libraries to disable
the filters "to enable access for any material that is not
obscene, child pornography, or in the case of minors, harmful to
minors," rather than "to enable access for bona fide research or
other lawful purposes," which is the language that Congress
actually chose.


At bottom, however, we need not definitively construe CIPA's
disabling provisions, since it suffices in this case to assume
without deciding that the disabling provisions permit libraries
to allow a patron access to any speech that is constitutionally
protected with respect to that patron.  Although this
interpretation raises fewer constitutional problems than a
narrower interpretation, this interpretation of the disabling
provisions nonetheless fails to cure CIPA's lack of narrow
tailoring.  Even if the disabling provisions permit public
libraries to allow patrons to access speech that is
constitutionally protected yet erroneously blocked by the
software filters, the requirement that library patrons ask a
state actor's permission to access disfavored content violates
the First Amendment.
The Supreme Court has made clear that content-based
restrictions that require recipients to identify themselves
before being granted access to disfavored speech are subject to
no less scrutiny than outright bans on access to such speech.  In
Lamont v. Postmaster General, 381 U.S. 301 (1965), for example,
the Court held that a federal statute requiring the Postmaster
General to halt delivery of communist propaganda unless the
addressee affirmatively requested the material violated the First
Amendment:
We rest on the narrow ground that the addressee in
order to receive his mail must request in writing that
it be delivered.  This amounts in our judgment to an
unconstitutional abridgment of the addressee's First
Amendment rights.  The addressee carries an affirmative
obligation which we do not think the Government may
impose on him.  This requirement is almost certain to
have a deterrent effect, especially as respects those
who have sensitive positions.
Id. at 307.


Similarly, in Denver Area Educational Telecommunications
Consortium, Inc. v. FCC, 518 U.S. 727 (1996), the Court held
unconstitutional a federal law requiring cable operators to allow
access to patently offensive, sexually explicit programming only
to those subscribers who requested access to the programming in
advance and in writing.  Id. at 732-33.  As in Lamont, the Court
in Denver reasoned that this content-based restriction on
recipients' access to speech would have an impermissible chilling
effect:  "[T]he written notice requirement will . . . restrict
viewing by subscribers who fear for their reputations should the
operator, advertently or inadvertently, disclose the list of
those who wish to watch the 'patently offensive' channel."  Id.
at 754; see also Fabulous Assocs., Inc. v. Pa. Pub. Util. Comm'n,
896 F.2d 780, 785 (3d Cir. 1990) (considering the
constitutionality of a state law requiring telephone users who
wish to listen to sexually explicit telephone messages to apply
for an access code to receive such messages, and invalidating the
law on the ground that "[a]n identification requirement exerts an
inhibitory effect").
We believe that CIPA's disabling provisions suffer from the
same flaws as the restrictions on speech in Lamont, Denver, and
Fabulous Associates.  By requiring library patrons affirmatively
to request permission to access certain speech singled out on the
basis of its content, CIPA will deter patrons from requesting
that a library disable filters to allow the patron to access
speech that is constitutionally protected, yet sensitive in
nature.  As we explain above, we find that library patrons will
be reluctant and hence unlikely to ask permission to access, for
example, erroneously blocked Web sites containing information
about sexually transmitted diseases, sexual identity, certain
medical conditions, and a variety of other topics.  As discussed
in our findings of fact, software filters block access to a wide
range of constitutionally protected speech, including Web sites
containing information that individuals are likely to wish to
access anonymously.



That library patrons will be deterred from asking permission
to access Web sites containing certain kinds of content is
evident as a matter of common sense as well as amply borne out by
the trial record.  Plaintiff Emmalyn Rood, who used the Internet
at a public library to research information relating to her
sexual identity, testified that she would have been unwilling as
a young teen to ask a librarian to disable filtering software so
that she could view materials concerning gay and lesbian
issues.   Similarly, plaintiff Mark Brown stated that he would
have been too embarrassed to ask a librarian to disable filtering
software if it had impeded his ability to research surgery
options for his mother when she was treated for breast cancer.
 As explained in our findings of fact, see supra at Subsection
II.D.2.b, the reluctance of patrons to request permission to
access Web sites that were erroneously blocked is further
established by the low number of patron unblocking requests,
relative to the number of erroneously blocked Web sites, in those
public libraries that use software filters and permit patrons to
request access to incorrectly blocked Web sites.  Cf. Fabulous
Assocs., 896 F.2d at 786 ("On the record before us, there is more
than enough evidence to support the district court's finding that
access codes will chill the exercise of some users' right to hear
protected communications.").
To be sure, the government demonstrated that it is possible
for libraries to permit patrons to request anonymously that a
particular Web site be unblocked.  In particular, the Tacoma
Public Library has configured its computers to present patrons
with the option, each time the software filter blocks their
access to a Web page, of sending an anonymous email to library
staff requesting that the page be unblocked.  Moreover, a library
staff member periodically scans logs of URLs blocked by the
filters, in an effort to identify erroneously blocked sites,
which the library will subsequently unblock.  Although a public
library's ability to permit anonymous unblocking requests
addresses the deterrent effect of requiring patrons to identify
themselves before gaining access to a particular Web site, we
believe that it fails adequately to address the overblocking
problem.


In particular, even allowing anonymous requests for
unblocking burdens patrons' access to speech, since such requests
cannot immediately be acted on.  Although the Tacoma Public
Library, for example, attempts to review requests for unblocking
within 24 hours, requests sometimes are not reviewed for several
days.  And delays are inevitable in libraries with branches that
lack the staff necessary immediately to review patron unblocking
requests.  Because many Internet users "surf" the Web, visiting
hundreds of Web sites in a single session and spending only a
short period of time viewing many of the sites, the requirement
that a patron take the time to affirmatively request access to a
blocked Web site and then wait several days until the site is
unblocked will, as a practical matter, impose a significant
burden on library patrons' use of the Internet.  Indeed, a
patron's time spent requesting access to an erroneously blocked
Web site and checking to determine whether access was eventually
granted is likely to exceed the amount of time the patron would
have actually spent viewing the site, had the site not been
erroneously blocked.  This delay is especially burdensome in view
of many libraries' practice of limiting their patrons to a half
hour or an hour of Internet use per day, given the scarcity of
terminal time in relation to patron demand.


The burden of requiring library patrons to ask permission to
view Web sites whose content is disfavored resembles the burden
that the Supreme Court found unacceptable in Denver, which
invalidated a federal law requiring cable systems operators to
block subscribers' access to channels containing sexually
explicit programming, unless subscribers requested unblocking in
advance.  The Court reasoned that "[t]hese restrictions will
prevent programmers from broadcasting to viewers who select
programs day by day (or, through 'surfing,' minute by minute) . .
. ."  Denver, 518 U.S. at 754.  Similarly, in Fabulous
Associates, the Third Circuit explained that a law preventing
adults from listening to sexually explicit phone messages unless
they applied in advance for access to such messages would burden
adults' receipt of constitutionally protected speech, given
consumers' tendency to purchase such speech on impulse.  See
Fabulous Assocs., 896 F.2d at 785 (noting that officers of two
companies that sell access to sexually explicit recorded phone
messages "testified that it is usually 'impulse callers' who
utilize these types of services, and that people will not call if
they must apply for an access code").
In sum, in many cases, as we have noted above, library
patrons who have been wrongly denied access to a Web site will
decline to ask the library to disable the filters so that the
patron can access the Web site.  Moreover, even if patrons
requested unblocking every time a site is erroneously blocked,
and even if library staff granted every such request, a public
library's use of blocking software would still impermissibly
burden patrons' access to speech based on its content.  The First
Amendment jurisprudence of the Supreme Court and the Third
Circuit makes clear that laws imposing content-based burdens on
access to speech are no less offensive to the First Amendment
than laws imposing content-based prohibitions on speech:
It is of no moment that the statute does not impose a
complete prohibition.  The distinction between laws
burdening and laws banning speech is but a matter of
degree.  The Government's content-based burdens must
satisfy the same rigorous scrutiny as its content-based
bans. . . .  When the purpose and design of a statute
is to regulate speech by reason of its content, special
consideration or latitude is not afforded to the
Government merely because the law can somehow be
described as a burden rather than outright suppression.


United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 812,
826 (2000) (invalidating a federal law requiring cable television
operators to limit the transmission of sexually explicit
programming to the hours between 10:00 p.m. and 6:00 a.m.); see
also Fabulous Assocs., 896 F.2d at 785 ("[H]ere . . . there is no
outright prohibition of indecent communication.  However, the
First Amendment protects against government inhibition as well as
prohibition.") (internal quotation marks and citation omitted).
Even if CIPA's disabling provisions could be perfectly
implemented by library staff every time patrons request access to
an erroneously blocked Web site, we hold that the content-based
burden that the library's use of software filters places on
patrons' access to speech suffers from the same constitutional
deficiencies as a complete ban on patrons' access to speech that
was erroneously blocked by filters, since patrons will often be
deterred from asking the library to unblock a site and patron
requests cannot be immediately reviewed.  We therefore hold that
CIPA's disabling provisions fail to cure CIPA's lack of narrow
tailoring.
5.        Conclusion; Severability


Based upon the foregoing discussion, we hold that a public
library's content-based restriction on patrons' access to speech
on the Internet is subject to strict scrutiny.  Every item in a
library's print collection has been selected because library
staff, or a party to whom staff delegates the decision, deems the
content to be particularly valuable.  In contrast, the Internet,
as a forum, is open to any member of the public to speak, and
hence, even when a library provides filtered Internet access, it
creates a public forum in which the vast majority of the speech
has been reviewed by neither librarians nor filtering companies.
 Under public forum doctrine, where the state creates such a
forum open to any member of the public to speak on an unlimited
number of subjects, the state's decision selectively to exclude
certain speech on the basis of its content, is subject to strict
scrutiny, since such exclusions risk distorting the marketplace
of ideas that the state has created.
Application of strict scrutiny to public libraries' content-
based restrictions on their patrons' access to the Internet finds
further support in the analogy to traditional public fora, such
as sidewalks, parks, and squares, in which content-based
restrictions on speech are always subject to strict scrutiny.
Like these traditional public fora, Internet access in public
libraries uniquely promotes First Amendment values, by offering
low barriers to entry to speakers and listeners.  The content of
speech on the Internet is as diverse as human thought, and the
extent to which the Internet promotes First Amendment values is
evident from the sheer breadth of speech that this new medium
enables.
To survive strict scrutiny, a public library's use of
filtering software must be narrowly tailored to further a
compelling state interest, and there must be no less restrictive
alternative that could effectively further that interest.  We
find that, given the crudeness of filtering technology, any
technology protection measure mandated by CIPA will necessarily
block access to a substantial amount of speech whose suppression
serves no legitimate government interest.  This lack of narrow
tailoring cannot be cured by CIPA's disabling provisions, because
patrons will often be deterred from asking the library's
permission to access an erroneously blocked Web page, and
anonymous requests for unblocking cannot be acted on without
delaying the patron's access to the blocked Web page, thereby
impermissibly burdening access to speech on the basis of its
content.


Moreover, less restrictive alternatives exist to further a
public library's legitimate interests in preventing its computers
from being used to access obscenity, child pornography, or in the
case of minors, material harmful to minors, and in preventing
patrons from being unwillingly exposed to patently offensive,
sexually explicit speech.  Libraries may use a variety of means
to monitor their patrons' use of the Internet and impose
sanctions on patrons who violate the library's Internet use
policy.  To protect minors from material harmful to minors,
libraries could grant minors unfiltered access only if
accompanied by a parent, or upon parental consent, or could
require minors to use unfiltered terminals in view of library
staff.  To prevent patrons from being unwillingly exposed to
offensive, sexually explicit content, libraries can offer patrons
the option of using blocking software, can place unfiltered
terminals outside of patrons' sight lines, and can use privacy
screens and recessed monitors.  While none of these less
restrictive alternatives are perfect, the government has failed
to show that they are significantly less effective than filtering
software, which itself fails to block access to large amounts of
speech that fall within the categories sought to be blocked.


In view of the severe limitations of filtering technology
and the existence of these less restrictive alternatives, we
conclude that it is not possible for a public library to comply
with CIPA without blocking a very substantial amount of
constitutionally protected speech, in violation of the First
Amendment.  Because this conclusion derives from the inherent
limits of the filtering technology mandated by CIPA, it holds for
any library that complies with CIPA's conditions.  Hence, even
under the stricter standard of facial invalidity proposed by the
government, which would require us to uphold CIPA if only a
single library can comply with CIPA's conditions without
violating the First Amendment, we conclude that CIPA is facially
invalid, since it will induce public libraries, as state actors,
to violate the First Amendment.  Because we hold that CIPA is
invalid on these grounds, we need not reach the plaintiffs'
alternative theories that CIPA is invalid as a prior restraint on
speech and is unconstitutionally vague.  Nor need we decide
whether CIPA is invalid because it requires public libraries, as
a condition on the receipt of federal funds, to relinquish their
own First Amendment rights to provide the public with unfiltered
Internet access, a theory that we nonetheless feel constrained to
discuss (at length) in the margin.



Having determined that CIPA violates the First Amendment, we
would usually be required to determine whether CIPA is severable
from the remainder of the statutes governing LSTA and E-rate
funding.  Neither party, however, has advanced the argument that
CIPA is not severable from the remainder the Library Services and
Technology Act and Communications Act of 1934 (the two statutes
governing LSTA and E-rate funding, respectively), and at all
events, we think that CIPA is severable.
"The inquiry into whether a statute is severable is
essentially an inquiry into legislative intent."  Minn. v. Mille
Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999).  "Unless
it is evident that the legislature would not have enacted those
provisions which are within its power, independently of that
which is not, the invalid part may be dropped if what is left is
fully operative as a law."  Buckley v. Valeo, 424 U.S. 1, 108
(1976) (internal quotation marks and citation omitted).  There is
no doubt that if we were to strike CIPA from the sections of the
United States Code where it is currently codified, the remaining
statutory sections, providing eligible public libraries with E-
rate discounts and LSTA grants, would be fully operative as law.
 Indeed, the LSTA and E-rate programs existed prior to the
enactment of CIPA in substantially the same form as they would
exist were we to strike CIPA and leave the rest of the programs
intact.


The second question, whether Congress would in this case
have chosen to repeal the LSTA and E-rate subsidy programs
instead of continuing to fund them if it had known that CIPA's
limitations on these programs were constitutionally invalid, is
less clear.  CIPA contains "separability" clauses that state that
if any of its additions to the statutes governing the LSTA and E-
rate programs are found to be unconstitutional, Congress intended
to effectuate as much of CIPA's amendments as possible.   We
interpret these clauses to mean, for example, that if a court
were to find that CIPA's requirements are unconstitutional with
respect to adult patrons, but permissible with respect to minors,
that Congress intended to have the court effectuate only the
provisions with respect to minors.  These separability clauses do
not speak to the situation before us, however, where we have
found that CIPA is facially unconstitutional in its entirety.


Nevertheless, the government has not pointed to anything in
the legislative history or elsewhere to suggest that Congress
intended to discontinue funding under the LSTA and E-rate
programs unless it could effectuate CIPA's restrictions on the
funding.  And Congress's decision, prior to CIPA's enactment, to
subsidize Internet access through the LSTA and E-rate programs
without such restrictions, counsels that we reach the opposite
conclusion.  At bottom, we think that it is unclear what
Congress's intent was on this point, and in the absence of such
information, we exercise a presumption in favor of severability.
 Regan v. Time, Inc., 468 U.S. 641, 653 (1984) ("[T]he
presumption is in favor of severability."); cf. Velazquez v.
Legal Servs. Corp., 164 F.3d 757, 773 (2d Cir. 1999), aff'd 531
U.S. 533 (2001) (applying a presumption in favor of severability
in the face of uncertainty whether Congress intended to fund the
Legal Services Corporation even if a restriction on the funding
was to be declared invalid).
For the foregoing reasons, we will enter a final judgment
declaring Sections 1712(a)(2) and 1721(b) of the Children's
Internet Protection Act, codified at 20 U.S.C. Sec. 9134(f) and 47
U.S.C. Sec. 254(h)(6), respectively, to be facially invalid under
the First Amendment and permanently enjoining the defendants from
enforcing those provisions.



___________________________
Edward R. Becker, Chief Circuit
Judge



                 IN THE UNITED STATES DISTRICT COURT

               FOR THE EASTERN DISTRICT OF PENNSYLVANIA


AMERICAN LIBRARY ASSOCIATION,           :       CIVIL ACTION
INC., et al.                            :
                                        :
v.                                      :
                                        :
UNITED STATES, et al.                   :       NO. 01-1303
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
MULTNOMAH COUNTY PUBLIC                 :       CIVIL ACTION
LIBRARY, et al.                         :
                                        :
v.                                      :
                                        :
UNITED STATES OF AMERICA, et al.        :       NO. 01-1322

        ORDER

AND NOW, this        day of May, 2002, based on the
foregoing findings of fact and conclusions of law, it is hereby
ORDERED that:

(1)  judgment is entered in favor of the plaintiffs and
against the defendants, declaring that Sec.Sec. 1712(a)(2) and 1721(b)
of the Children's Internet Protection Act, 20 U.S.C. Sec. 9134(f)
and 47 U.S.C. Sec. 254(h)(6), are facially invalid under the First
Amendment to the United States Constitution; and


(2)  the United States, Michael Powell, in his official
capacity as Chairman of the Federal Communications Commission,
the Federal Communications Commission, Beverly Sheppard, in her
official capacity as Acting Director of the Institute of Museum
and Library Services, and the Institute of Museum and Library
Services are permanently enjoined from withholding federal funds
from any public library for failure to comply with Sec.Sec. 1712(a)(2)
and 1721(b) of the Children's Internet Protection Act, 20 U.S.C.
Sec. 9134(f) and 47 U.S.C. Sec. 254(h)(6).
BY THE COURT:



        __________________________________
        Ch. Cir. J.



        __________________________________
        J.



        __________________________________
        J.


FOOTNOTES

       Plaintiffs advance three other alternative, independent
grounds for holding CIPA facially invalid.  First, they submit
that even if CIPA will not induce public libraries to violate the
First Amendment, CIPA nonetheless imposes an unconstitutional
condition on public libraries by requiring them to relinquish
their own First Amendment rights to provide unfiltered Internet
access as a condition on their receipt of federal funds.  See
infra n.36.  Second, plaintiffs contend that CIPA is facially
invalid because it effects an impermissible prior restraint on
speech by granting filtering companies and library staff
unfettered discretion to suppress speech before it has been
received by library patrons and before it has been subject to a
judicial determination that it is unprotected under the First
Amendment.  See Southeastern Promotions, Ltd. v. Conrad, 420 U.S.
546, 558 (1975).  Finally, plaintiffs submit that CIPA is
unconstitutionally vague.  See City of Chicago v. Morales, 527
U.S. 41 (1999).
       CIPA defines "[m]inor" as "any individual who has not
attained the age of 17 years."  CIPA Sec. 1721(c) (codified at 47
U.S.C. Sec. 254(h)(7)(D)).  CIPA further provides that "[o]bscene"
has the meaning given in 18 U.S.C. Sec. 1460, and "child
pornography" has the meaning given in 18 U.S.C. Sec. 2256.  CIPA Sec.
1721(c) (codified at 47 U.S.C. Sec. 254(h)(7)(E) & (F)).  CIPA
defines material that is "harmful to minors" as:

any picture, image, graphic image file, or other visual
depiction that – (i) taken as a whole and with respect
to minors, appeals to a prurient interest in nudity,
sex, or excretion; (ii) depicts, describes, or
represents, in a patently offensive way with respect to
what is suitable for minors, an actual or simulated
sexual act or sexual contact, actual or simulated
normal or perverted sexual acts, or a lewd exhibition
of the genitals; and (iii) taken as a whole, lacks
serious literary, artistic, political, or scientific
value as to minors.
CIPA Sec. 1721(c) (codified at 47 U.S.C. Sec. 254(h)(7)(G)).
CIPA prohibits federal interference in local determinations
regarding what Internet content is appropriate for minors:

A determination regarding what matter is appropriate
for minors shall be made by the school board, local
educational agency, library or other authority
responsible for making the determination.  No agency or
instrumentality of the United States Government may –
(A) establish criteria for making such determination;
(B) review the determination made by the certifying
[entity] . . . ; or (C) consider the criteria employed
by the certifying [entity] . . . in the administration
of subsection (h)(1)(B).

CIPA Sec. 1732 (codified at 47 U.S.C. Sec. 254(l)(2)).
        The government challenges the standing of several of the
plaintiffs and the ripeness of their claims.  These include all
of the Web site publishers and all of the individual library
patrons.  Notwithstanding these objections, we are confident that
the "case or controversy" requirement of Article III, Sec. 2 of the
Constitution is met by the existence of the plaintiff libraries
that qualify for LSTA and E-rate funding and the library
associations whose members qualify for such funding.  These
plaintiffs are faced with the impending choice of either
certifying compliance with CIPA by July 1, 2002, or foregoing
subsidies under the LSTA and E-rate programs, and therefore
clearly have standing to challenge the constitutionality of the
conditions to which they will be subject should they accept the
subsidies.  We also note that the presence of the Web site
publishers and individual library patrons does not affect our
legal analysis or disposition of the case.
        The OCLC database, a cooperative cataloging service
established to facilitate interlibrary loan requests, includes 40
million catalog records from approximately 48,000 libraries of
all types worldwide.  Slightly more than 400 of the libraries in
the OCLC database are listed as carrying Playboy in their
collections, while only eight subscribe to Hustler.
        Fort Vancouver Regional Library, for example, combines
the methods of strategically placing terminals in low traffic
areas and using privacy screens.  A section headed
"Confidentiality and Privacy" on the library's home page states:
"in order to protect the privacy of the user and the interests of
other library patrons, the library will attempt to minimize
unintentional viewing of the Internet.  This will be done by use
of privacy screens, and by judicious placement of the terminals
and other appropriate means."
        Indeed, we granted leave for N2H2's counsel to intervene
in order to object to testimony that would potentially reveal
N2H2's trade secrets, which he did on several occasions.
        Geoffrey Nunberg (Ph.D., Linguistics, C.U.N.Y. 1977) is a
researcher at the Center for the Study of Language and
Information at Stanford University and a Consulting Full
Professor of Linguistics at Stanford University.  Until 2001, he
was also a principal scientist at the Xerox Palo Alto Research
Center.  His research centers on automated classification
systems, with a focus on classifying documents on the Web with
respect to their linguistic properties.  He has published his
research in numerous professional journals, including peer-
reviewed journals.
        A "cookie" is "a small file or part of a file stored on a
World Wide Web user's computer, created and subsequently read by
a Web site server, and containing personal information (as a user
identification code, customized preferences, or a record of pages
visited)."  Merriam-Webster's Collegiate Dictionary, available at
http://www.m-w.com/dictionary.htm.
        Hunter drew three different "samples" for his test.  The
first consisted of "50 randomly generated Web pages from the
Webcrawler search engine."  The "second sample of 50 Web pages
was drawn from searches for the terms 'yahoo, warez, hotmail,
sex, and MP3,' using the AltaVista.com search engine."  And the
"final sample of 100 Web sites was drawn from the sites of
organizations who filed amicus briefs in support of the ACLU's
challenges to the Community [sic] Decency Act (CDA) and COPA [the
Children's Online Protection Act], and from Internet portals,
political Web sites, feminist Web sites, hate speech sites,
gambling sites, religious sites, gay pride/homosexual sites,
alcohol, tobacco, and drug sites, pornography sites, new sites,
violent game sites, safe sex sites, and pro and anti-abortion
sites listed on the popular Web directory, Yahoo.com."
Lemmons testified that he compiled the list of sexually
explicit sites that should have been blocked by entering the
terms "free adult sex, anal sex, oral sex, fisting lesbians, gay
sex, interracial sex, big tits, blow job, shaved pussy, and
bondage" into the Google search engine and then "surfing" through
links from pages generated by the list of sites that the search
engine returned.  Using this method, he compiled a list of 197
sites that he determined should be blocked according to the
filtering programs' category definitions.  Lemmons also attempted
to compile a list of "sensitive" Web sites that, although they
should not have been blocked according to the filtering programs'
category definitions, might have been mistakenly blocked.  In
order to do this, he used the same method of entering terms into
the Google search engine and surfing through the results.  He
used the following terms to compile this list: "breast feeding,
bondages, fetishes, ebony, gay issues, women's health, lesbian,
homosexual, vagina, vaginal dryness, pain, anal cancer, teen
issues, safe sex, penis, pregnant, interracial, sex education,
penis enlargement, breast enlargement, . . . and shave."
        If separate patrons attempted to reach the same Web
site, or one or more patrons attempted to access more than one
page on a single Web site, Finnell counted these attempts as a
single block.  For example, the total number of blocked requests
for Web pages at Tacoma Library during the logged period was
2,812, but Finnell counted this as only 895 blocks of unique Web
sites.  Of the 895 unique blocked sites, Finnell was unable to
access 59, yielding 836 unique blocked sites for his team to
review.
        The confidence intervals that Finnell calculated
represent the range of percentages within which we can be 95%
confident that the actual rate of overblocking in that particular
library falls.  We note that these confidence intervals assume
that the time period for which the study assessed the library's
internet logs constitutes a random and representative sample.
        To illustrate the two different methods, consider a
random sample of 1010 web sites taken from a library's Internet
use log, 10 of which fall within the category that a filter is
intended to block (e.g., pornography), and suppose that the
filter incorrectly failed to block 2 of the 10 sites that it
should have blocked and did not block any sites that should not
have been blocked.  The standard method of quantifying the rate
of underblocking would divide the number of sites in the sample
that the filter incorrectly failed to block by the number of
sites in the sample that the filter should have blocked, yielding
an underblocking rate in this example of 20%.  Finnell's study,
however, calculated the underblocking rate by dividing the number
of sites that the filter incorrectly failed to block by the total
number of sites in the sample that were not blocked (whether
correctly or incorrectly) yielding an underblocking rate in this
example of only .2%.
       According to Biek, the sample size that he used yielded a
95% confidence interval of plus or minus 3.11%.
        Edelman is a Harvard University student and a systems
administrator and multimedia specialist at the Berkman Center for
Internet and Society at Harvard Law School.  Despite Edelman's
young age, he has been doing consulting work on Internet-related
issues for nine years, since he was in junior high school.
        The archiving process in some cases took up to 48 hours
from when the page was blocked.
        In October 2001, Edelman published the results of his
initial testing on his Web site.  In February and March 2002 he
repeated his testing of the 6,777 URLs originally found to be
blocked by at least one of the blocking products, in order to
determine whether and to what extent the blocking product vendors
had corrected the mistakes that he publicized.  Of those URLs
blocked by N2H2 in the October 2001 testing, 55.10% remained
blocked when tested by Edelman in March 2002.  Of those URLs
blocked by Websense in the October 2001 testing, 76.28% remained
blocked when tested by Edelman in February 2002.  Of those URLs
blocked by SurfControl's Cyber Patrol product, only 7.16%
remained blocked, i.e., Cyber Patrol had unblocked almost 93% of
the Web pages originally blocked.  Because the results posted to
his Web site were accessed by an employee of SurfControl (as
evidenced by Edelman's records of who was accessing his Web
site), we infer that Cyber Patrol had determined that 93% of all
6,777 pages, or 6,302 Web pages, were originally wrongly blocked
by the product.
        Two other expert witnesses reviewed subsets of the list
of Web pages that Edelman compiled.  Dr. Michael T. Ryan,
Director of the Rare Book and Manuscript Library and of the
Center for Electronic Text and Image at the University of
Pennsylvania, reviewed a list of 204 sites that Edelman forwarded
to him in order to determine their appropriateness and usefulness
in the library setting.  Because the sites that Ryan reviewed
were not selected randomly (i.e., they were chosen by plaintiffs'
counsel), his study says little about the character of the set of
6,777 sites that Edelman compiled, or the total amount of
overblocking by the four filtering programs that Edelman used.
Anne Lipow, a practicing librarian for more than 30 years
and the director of a library consulting firm, also reviewed the
same list of 204 URLs from the set that Edelman had collected for
their appropriateness for a library's collection.  She
categorized sites in four different levels according to their
appropriateness for a public library's collection. Again, because
these URLs were not selected randomly, Lipow's study is not
particularly relevant to the total set that Edelman compiled, or
to the total amount of overblocking by the four filtering
programs that Edelman used.
Although the methodology used to select the list of Web
pages that was forwarded to Ryan and Lipow is problematic, Ryan's
and Lipow's testimony established that many of the erroneously
blocked sites that Edelman identified would be useful and
appropriate sources of information for library patrons.
        All of the reviewers that Janes recruited had some
relevant experience in library reference services or library
collection development.  Janes divided the reviewers into two
groups, a group of 11 less experienced reviewers, and a group of
five more experienced reviewers.  Janes assigned the less
experienced group to do a first-round review with the purpose of
identifying the most obviously overblocked sites.  The more
experienced group was to review the remaining sites (i.e., those
that were not obviously overblocked) and to make final decisions
regarding these sites.
In the first round, each person evaluated two sets of around
80 sites, and each group was evaluated by two different people.
Each set of sites included the following instructions:

Look carefully at each of the Web sites on the list.  Please make
a notation of any site that appears to meet any of the following
criteria:

a. Contains information similar to that already found
in libraries,

or

b. Contains information a librarian would want in the
library if s/he had unlimited funds to purchase
information and unlimited shelf space,

or

c. You would be willing to refer a patron (of any age)
to the site if the patron appeared at a reference desk
seeking information about the subject of the site.  For
this last criterion, we recognize that you might not
refer a young child to a Calculus site just because it
would not be useful to that child, but you should
ignore that factor.  Informational sites, such as a
Calculus site, should be noted.  A site that is purely
erotica should not be noted.

Sites that received "Yes" votes from both reviewers were
determined to be of sufficient interest in a library context and
removed from further analysis.  Sites receiving one or two "No"
votes would go to the next round.  In the first round, 243 sites
received "Yes" votes from both reviewers, while 456 sites
received one or more "No" votes or could not be found.  These 456
sites were sent forward to the second round of judging.
The instructions for the second-round reviewers were the
same as those given to the first-round reviewers, except that in
section c, the following sentence was added: "Sites that have a
commercial purpose should be included here if they might be of
use or interest to someone wishing to buy the product or service
or doing research on commercial behavior on the Internet, much as
most libraries include the Yellow Pages in their collections."
The second round of review produced the following results: 60
sites could not be found (due to broken links, 404 "not found"
errors, domain for sale messages, etc.), 231 sites were judged
"Yes," and 165 judged "No."
        Although it was not proffered as evidence in this trial,
(and hence we do not rely on it to inform our findings), we note
that Youth, Pornography, and the Internet, a congressionally
commissioned study by the National Research Council, a division
of the National Academies of Science, see Pub. L. 105-314, Title
X, Sec. 901, comes to a conclusion similar to the one that we
reach regarding the effectiveness of Internet filters.  The
commission concludes that:

All filters–those of today and for the foreseeable
future–suffer (and will suffer) from some degree of
overblocking (blocking content that should be allowed
through) and some degree of underblocking (passing
content that should not be allowed through).  While the
extent of overblocking and underblocking will vary with
the product (and may improve over time), underblocking
and overblocking result from numerous sources,
including the variability in the perspectives that
humans bring to the task of judging content.

Youth, Pornography, and the Internet (Dick Thornburgh & Herbert
S. Lin, eds., 2002), available at
http://bob.nap.edu/html/youth_internet/.

       Because we find that the plaintiff public libraries are
funded and controlled by state and local governments, they are
state actors, subject to the constraints of the First Amendment,
as incorporated by the Due Process Clause of the Fourteenth
Amendment.
       The Supreme Court has recognized that the First Amendment
encompasses not only the right to speak, but also the right to
receive information.  See Reno v. ACLU, 521 U.S. 844, 874 (1997)
(invalidating a statute because it "effectively suppresses a
large amount of speech that adults have a constitutional right to
receive and to address to one another"); Stanley v. Georgia, 394
U.S. 557, 564 (1969) ("[The] right to receive information and
ideas, regardless of their social worth . . . is fundamental to
our free society."); see also Bd. of Educ. v. Pico, 457 U.S. 853,
867-68 (1982) (plurality opinion) ("[T]he right to receive ideas
follows ineluctably from the sender's First Amendment right to
send them.").
       Indeed, if the First Amendment subjected to strict
scrutiny the government's decision to dedicate a forum to speech
whose content the government judges to be particularly valuable,
many of our public institutions of culture would cease to exist
in their current form:

From here on out, the National Gallery in Washington,
D.C., for example, would be required to display the art
of all would-be artists on a first-come-first-served
basis and would not be able to exercise any content
control over its collection through evaluations of
quality.  Such a conclusion, of course, strikes us as
absurd, but that is only because we feel that the
government should be free to establish public cultural
institutions guided by standards such as "quality."
. . .
While the First Amendment articulates a deep fear of
government intervention in the marketplace of ideas
(because of the risk of distortion), it also seems
prepared to permit state-sponsored and -supported
cultural institutions that exercise considerable
control over which art to fund, which pictures to hang,
and which courses to teach.  That these choices
necessarily involve judgments about favored and
disfavored content – judgments clearly prohibited in
the realm of censorship – is indisputable.

Lee C. Bollinger, Public Institutions of Culture and the First
Amendment: The New Frontier, 63 U. Cin. L. Rev. 1103, 1110-15
(1995).
       In both of these cases, the taxation scheme at issue
effectively subsidized a vast range of publications, and singled
out for penalty only a handful of speakers.  See Arkansas
Writers' Project, 460 U.S. at 228-29 (noting that "selective
taxation of the press – . . . [by] targeting individual members
of the press – poses a particular danger of abuse by the State"
and explaining that "this case involves a more disturbing use of
selective taxation than Minneapolis Star, because the basis on
which Arkansas differentiates between magazines is particularly
repugnant to First Amendment principles: a magazine's tax status
depends entirely on its content"); Minneapolis Star, 460 U.S. at
591 ("Minnesota's ink and paper tax violates the First Amendment
not only because it singles out the press, but also because it
targets a small group of newspapers."); see also Turner Broad.
Sys., Inc. v. FCC, 512 U.S. 622, 660 (1994) ("The taxes
invalidated in Minneapolis Star and Arkansas Writers' Project . .
. targeted a small number of speakers, and thus threatened to
distort the market for ideas.") (internal quotation marks and
citation omitted).
         [P]atrons at a library do not have the right to
make editorial decisions regarding the availability of
certain material.  It is the exclusive authority of the
library to make affirmative decisions regarding what
books, magazines, or other material is placed on
library shelves, or otherwise made available to
patrons.  Libraries impose many restrictions on the use
of their systems which demonstrate that the content of
the library's offerings are not determined by the
general public.

S. Rep. No. 106-141, at 8-9 (1999).
       In distinguishing restrictions on public libraries' print
collections from restrictions on the provision of Internet
access, we do not rely on the rationale adopted in Mainstream
Loudoun v. Board of Trustees of the Loudoun County Library, 2 F.
Supp. 2d 783 (E.D. Va. 1998).  The Loudoun Court reasoned that a
library's decision to block certain Web sites fundamentally
differs from its decision to carry certain books but not others,
in that unlike the money and shelf space consumed by the
library's provision of print materials, "no appreciable
expenditure of library time or resources is required to make a
particular Internet publication available" once the library has
acquired Internet access.  Id. at 793-94.
We disagree.  Nearly every librarian who testified at trial
stated that patrons' demand for Internet access exceeds the
library's supply of Internet terminals.  Under such
circumstances, every time library patrons visit a Web site, they
deny other patrons waiting to use the terminal access to other
Web sites.  Just as the scarcity of a library's budget and shelf
space constrains a library's ability to provide its patrons with
unrestricted access to print materials, the scarcity of time at
Internet terminals constrains libraries' ability to provide
patrons with unrestricted Internet access:

The same budget concerns constraining the number of
books that libraries can offer also limits the number
of terminals, Internet accounts, and speed of access
links that can be purchased, and thus the number of Web
pages that patrons can view.  This is clear to anyone
who has been denied access to a Website because no
terminal was unoccupied.

Mark S. Nadel, The First Amendment's Limitations on the Use of
Internet Filtering in Public and School Libraries: What Content
Can Libraries Exclude?, 78 Tex. L. Rev. 1117, 1128 (2000).
        We have found that approximately 14.3 million Americans
access the Internet at a public library, and Internet access at
public libraries is more often used by those with lower incomes
than those with higher incomes.  We found that about 20.3% of
Internet users with household family income of less than $15,000
per year use public libraries for Internet access, and
approximately 70% of libraries serving communities with poverty
levels in excess of 40% receive E-rate discounts.  The widespread
availability of Internet access in public libraries is due, in
part, to the availability of public funding, including state and
local funding and the federal funding programs regulated by CIPA.
       We acknowledge that traditional public fora have
characteristics that promote First Amendment values in ways that
the provision of Internet access in public libraries does not.
 For example, a significant virtue of traditional public fora is
their facilitation of face-to-face communication.  "In a face-to-
face encounter there is a greater opportunity for the exchange of
ideas and the propagation of views . . . ."  Cornelius, 473 U.S.
at 798.  Face-to-face exchanges also permit speakers to confront
listeners who would otherwise not actively seek out the
information that the speaker has to offer.  In contrast, the
Internet operates largely by providing individuals with only that
information that they actively seek out.  Although the Internet
does not permit face-to-face communication in the same way that
traditional public fora do, the Internet, as a medium of
expression, is significantly more interactive than the broadcast
media and the press.  "[T]he Web makes it possible to establish
two-way linkages with potential sympathizers.  Unlike the
unidirectional nature of most mass media, websites, bulletin
boards, chatrooms, and email are potentially interactive."  Seth
F. Kreimer, Technologies of Protest: Insurgent Social Movements
and the First Amendment in the Era of the Internet, 150 U. Pa. L.
Rev. 119, 130 (2001).
       We acknowledge that the Internet's architecture is a
human creation, and is therefore subject to change.  The
foregoing analysis of the unique speech-enhancing qualities of
the Internet is limited to the Internet as currently constructed.
 Indeed, the characteristics of the Internet that we believe
render it uniquely suited to promote First Amendment values may
change as the Internet's architecture evolves.  See Lawrence
Lessig, Reading the Constitution in Cyberspace, 45 Emory L.J.
869, 888 (1996) ("Cyberspace has no permanent nature, save the
nature of a place of unlimited plasticity.  We don't find
cyberspace, we build it."); see also Lawrence Lessig, The Death
of Cyberspace, 57 Wash. & Lee L. Rev. 337 (2000).
       For First Amendment purposes, obscenity is "limited to
works which, taken as a whole, appeal to the prurient interest in
sex, which portray sexual conduct in a patently offensive way,
and which, taken as a whole, do not have serious literary,
artistic, political, or scientific value."  Miller v. California,
413 U.S. 15, 24 (1973).
       The Supreme Court in Reno explained:

The District Court found that at the time of trial
existing technology did not include any effective
method for a sender to prevent minors from obtaining
access to its communications on the Internet without
also denying access to adults.  The Court found no
effective way to determine the age of a user who is
accessing material through e-mail, mail exploders,
newsgroups, or chat rooms.  As a practical matter, the
Court also found that it would be prohibitively
expensive for noncommercial – as well as some
commercial – speakers who have Web sites to verify that
their users are adults.  These limitations must
inevitably curtail a significant amount of adult
communication on the Internet.

Reno, 521 U.S. at 876-77 (citation omitted).
       To the extent that filtering software is effective in
identifying URLs of Web pages containing obscenity or child
pornography, libraries may use filtering software as a tool for
identifying URLs in their Internet use logs that fall within
these categories, without requiring patrons to use filtering
software.  As the study of Benjamin Edelman, an expert witness
for the plaintiffs, demonstrates, it is possible to develop
software that automatically tests a list of URLs, such as the
list of URLs in a public library's Internet use logs, to
determine whether any of those URLs would be blocked by a
particular software filter as falling within a particular
category.  Alternatively, library staff can review the Internet
use logs by hand, skimming the list of URLs for those that are
likely to correspond to Web pages containing obscenity or child
pornography, as is the practice of Tacoma's David Biek, who
testified as a government witness.  Under either method, public
libraries can assure patrons of their privacy by tracing a given
URL to a particular patron only after determining that the URL
corresponds to a Web site whose content is illegal.
       We need not decide whether these less restrictive
alternatives would themselves be constitutional.  See Fabulous
Assocs., Inc. v. Pa. Pub. Util. Comm'n, 896 F.2d 780, 787 n.6 (3d
Cir. 1990) ("We intimate no opinion on the constitutionality of
[a less restrictive alternative to the challenged law] . . .,
inasmuch as we consider merely [its] comparative restrictiveness
. . . .").
       Whereas the disabling provision applicable to libraries
that receive LSTA grants permits disabling for both adults and
minors, the disabling provision applicable to libraries that
receive E-rate discounts permits disabling only during adult use.
 Thus, the disabling provision applicable to libraries receiving
E-rate discounts cannot cure the constitutional infirmity of
CIPA's requirement that libraries receiving E-rate discounts use
software filters when their Internet terminals are in use by
minors.
       Software filters sometimes incorrectly block access to,
inter alia, Web sites dealing with issues relating to sexual
identity.  For example, the "Gay and Lesbian Chamber of Southern
Nevada," http://www.lambdalv.com, "a forum for the business
community to develop relationships within the Las Vegas lesbian,
gay transsexual, and bisexual community" was blocked by N2H2 as
"Adults Only, Pornography."  The home page of the Lesbian and Gay
Havurah of the Long Beach, California Jewish Community Center,
http://www.compupix.com/gay/havurah.htm, was blocked by N2H2 as
"Adults Only, Pornography," by Smartfilter as "Sex," and by
Websense as "Sex."
       Among the types of Web sites that filters erroneously
block are Web sites dealing with health issues, such as the Web
site of the Willis-Knighton Cancer Center, a Shreveport,
Louisiana cancer treatment facility, http://cancerftr.wkmc.com,
which was blocked by Websense under the "Sex" category.
       Although in light of our disposition of the plaintiffs'
Dole claim, we do not rule upon plaintiffs' contention that
CIPA's conditioning of funds on the installation of filtering
software violates the doctrine of unconstitutional conditions, we
are mindful of the need to frame the disputed legal issues and to
develop a full factual record for the certain appeal to the
Supreme Court.  Cf. Ashcroft v. ACLU, 2002 U.S. LEXIS 3421 (May
13, 2002) (remanding the case to the Court of Appeals to review
the legal and factual bases on which the District Court granted
plaintiffs' motion for a preliminary injunction after vacating
its opinion that relied on a different ground from the ones used
by the District Court).   Although we do not decide the
plaintiffs' unconstitutional conditions claim, we think that our
findings of fact on public libraries, their use of the Internet,
and the technological limitations of Internet filtering software,
see supra Subsections II.D-E, and our framing of the legal issue
here, would allow the Supreme Court to decide the issue if it
deems it necessary to resolve this case.
The doctrine of unconstitutional conditions "holds that the
government 'may not deny a benefit to a person on a basis that
infringes his constitutionally protected . . . freedom of speech'
even if he has no entitlement to that benefit."  Bd. of County
Comm'rs v. Umbehr, 518 U.S. 668, 674 (1996) (quoting Perry v.
Sindermann, 408 U.S. 593, 597 (1972)).  In this case, the
plaintiffs argue that CIPA imposes an unconstitutional condition
on libraries who receive E-rate and LSTA subsidies by requiring
them, as a condition on their receipt of federal funds, to
surrender their First Amendment right to provide the public with
access to constitutionally protected speech.  Under this theory,
even if it does not violate the First Amendment for a public
library to use filtering software, it nonetheless violates the
First Amendment for the federal government to require public
libraries to use filters as a condition of the receipt of federal
funds.
The government contends that this case does not fall under
the unconstitutional conditions framework because: (1) as state
actors, the recipients of the funds (the public libraries) are
not protected by the First Amendment, and therefore are not being
asked to relinquish any constitutionally protected rights; and
(2) although library patrons are undoubtedly protected by the
First Amendment, they are not the funding recipients in this
case, and libraries may not rely on their patrons' rights in
order to state an unconstitutional conditions claim.
It is an open question in this Circuit whether Congress may
violate the First Amendment by restricting the speech of public
entities, such as municipalities or public libraries.  The only
U.S. Supreme Court opinion to weigh in on the issue is a
concurrence by Justice Stewart, joined by Chief Justice Burger
and Justice Rehnquist, in which he opined that municipalities and
other arms of the state are not protected by the First Amendment
from governmental interference with their expression.  See Colum.
Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 139
(1973) (Stewart, J., concurring) ("The First Amendment protects
the press from governmental interference; it confers no analogous
protection on the Government."); see also id. at 139 n.7 ("The
purpose of the First Amendment is to protect private expression
and nothing in the guarantee precludes the government from
controlling its own expression or that of its agents.") (quoting
Thomas Emerson, The System of Freedom of Expression 700 (1970)
(internal quotation marks omitted)).  The Court has subsequently
made it clear, however, that it considers it to be an open
question whether municipalities acting in their capacity as
employers have First Amendment rights, suggesting that the
question whether public entities are ever protected by the First
Amendment also remains open.  See City of Madison Joint Sch.
Dist. No. 8 v. Wisc. Employment Relations Comm'n, 429 U.S. 167,
175 n.7 (1976) ("We need not decide whether a municipal
corporation as an employer has First Amendment rights to hear the
views of its citizens and employees.").
Several courts of appeals have cited Justice Stewart's
concurrence in Columbia Broadcasting Systems and have, with
little discussion or analysis, concluded that a "government . . .
speaker is not itself protected by the first amendment."  Warner
Cable Communications, Inc. v. City of Niceville, 911 F.2d 634,
638 (11th Cir. 1990); see also NAACP v. Hunt, 891 F.2d 1555, 1565
(11th Cir. 1990) ("[T]he First Amendment protects citizens'
speech only from government regulation; government speech itself
is not protected by the First Amendment."); Student Gov't Ass'n
v. Bd. of Trustees of the Univ. of Mass., 868 F.2d 473, 481 (1st
Cir. 1989) (concluding that the legal services organization run
by a state university, "as a state entity, itself has no First
Amendment rights"); Estiverne v. La. State Bar Ass'n, 863 F.2d
371, 379 (5th Cir. 1989) (noting that "the first amendment does
not protect government speech").
We do not think that the question whether public libraries
are protected by the First Amendment can be resolved as simply as
these cases suggest.  This difficulty is demonstrated by the
reasoning of the Seventh Circuit in a case in which that court
considered whether municipalities are protected by the First
Amendment and noted that it is an open question that could
plausibly be answered in the affirmative, yet declined to decide
it:

Only a few cases address the question whether
municipalities or other state subdivisions or agencies
have any First Amendment rights. . . .  The question is
an open one in this circuit, and we do not consider the
answer completely free from doubt.  For many purposes,
for example diversity jurisdiction and Fourteenth
Amendment liability, municipalities are treated by the
law as if they were persons.  Monell v. Department of
Social Services, 436 U.S. 658, 690 (1978); Moor v.
County of Alameda, 411 U.S. 693, 717-18 (1973).  There
is at least an argument that the marketplace of ideas
would be unduly curtailed if municipalities could not
freely express themselves on matters of public concern,
including the subsidization of housing and the
demographic makeup of the community.
To the extent, moreover, that a municipality is
the voice of its residents—is, indeed, a megaphone
amplifying voices that might not otherwise be audible—a
curtailment of its right to speak might be thought a
curtailment of the unquestioned First Amendment rights
of those residents.  See Meir Dan-Cohen, "Freedoms of
Collective Speech: A Theory of Protected Communications
by Organizations, Communities, and the State," 79
Calif. L. Rev. 1229, 1261-63 (1991); cf. Student
Government Ass'n v. Board of Trustees, supra, 868 F.2d
at 482.  Thus if federal law imposed a fine on
municipalities that passed resolutions condemning
abortion, one might suppose that a genuine First
Amendment issue would be presented.  Against this
suggestion can be cited the many cases which hold that
municipalities lack standing to invoke the Fourteenth
Amendment against actions by the state. E.g., Coleman
v. Miller, 307 U.S. 433, 441 (1939); Williams v. Mayor
& City Council of Baltimore, 289 U.S. 36, 40 (1933);
City of East St. Louis v. Circuit Court for the
Twentieth Judicial Circuit, 986 F.2d 1142, 1144 (7th
Cir. 1993).  But it is one thing to hold that a
municipality cannot interpose the Fourteenth Amendment
between itself and the state of which it is the
creature, Anderson v. City of Boston, 380 N.E.2d 628,
637-38 (Mass. 1978), appeal dismissed for want of a
substantial federal question, 439 U.S. 1060 (1979), and
another to hold that a municipality has no rights
against the federal government or another state.
Township of River Vale v. Town of Orangetown, 403 F.2d
684, 686 (2d Cir. 1968), distinguishes between these
two types of cases.

Creek v. Village of Westhaven, 80 F.3d 186, 192-93 (7th Cir.
1996).
We also note that there is no textual support in the First
Amendment for distinguishing between, for example, municipal
corporations, and private corporations, which the Court has
recognized have cognizable First Amendment rights.  First Nat'l
Bank of Boston v. Bellotti, 435 U.S. 765, 775-76 (1978).  Unlike
other provisions in the Bill of Rights, which the Supreme Court
has held to be "purely personal" and thus capable of being
invoked only by individuals, the First Amendment is not phrased
in terms of who holds the right, but rather what is protected.
Compare U.S. Const. amend V ("No person shall be held to answer .
. .") (emphasis added) with U.S. Const. amend I ("Congress shall
make no law . . . abridging the freedom of speech, or of the
press . . . ."); see also United States v. White, 322 U.S. 694,
698-701 (1944) (holding that the privilege against self-
incrimination applies only to natural persons).
The Supreme Court relied on this distinction (i.e., that the
First Amendment protects a class of speech rather than a class of
speakers) in a similar context in Bellotti.  There, the Court
invalidated a Massachusetts statute that prohibited corporations
from spending money to influence ballot initiatives that did not
bear directly on their "property, business or assets."  Id. at
768.  In so holding, the Court rejected the argument that the
First Amendment protects only an individual's expression.  The
Court wrote:

The Constitution often protects interests broader than
those of the party seeking their vindication. . . .
The proper question therefore is not whether
corporations "have" First Amendment rights and, if so,
whether they are coextensive with those of natural
persons.  Instead, the question must be whether [the
government is] abridg[ing] expression that the First
Amendment was meant to protect.

Id. at 776.  The Court thus concluded that corporations are
entitled to assert First Amendment claims as speakers, noting
that "[t]he inherent worth of the speech in terms of its capacity
for informing the public does not depend upon the identity of its
source, whether corporation, association, union, or individual."
 Id. at 777.
In view of the foregoing, the notion that public libraries
may assert First Amendment rights for the purpose of making an
unconstitutional conditions claim is clearly plausible, and may
well be correct.  But even if it is not, we think it plausible
that they could rely on their patrons' rights, even though their
patrons are not the ones who are directly receiving the federal
funding.  In similar cases, the Supreme Court has entertained
unconstitutional conditions claims both by the organizations that
receive federal funding and by their constituents.  See Legal
Servs. Corp. v. Velazquez, 531 U.S. 533, 537 (2001) ("Lawyers
employed by New York City LSC grantees, together with private LSC
contributors, LSC indigent clients, and various state and local
public officials whose governments contribute to LSC grantees,
brought suit . . . to declare the restriction [on LSC lawyers'
ability advocate the amendment of or to challenge the
constitutionality of existing welfare law] . . . invalid."); Rust
v. Sullivan, 500 U.S. 173, 181 (1991) ("Petitioners are Title X
grantees and doctors who supervise Title X funds suing on behalf
of themselves and their patients. . . .  Petitioners challenged
the regulations on the grounds that . . . they violate the First
and Fifth Amendment rights of Title X clients and the First
Amendment rights of Title X health providers."); FCC v. League of
Women Voters of Cal., 468 U.S. 364, 370 n.6 (1984) (reviewing a
First Amendment challenge to conditions on public broadcasters'
receipt of federal funds, in which the plaintiffs included not
only the owner of a public television station, but also viewers
of the station's programs, including the League of Women Voters,
and "Congressman Henry Waxman, . . . a regular listener and
viewer of public broadcasting").
The question whether CIPA's requirement that libraries use
filtering software constitutes an unconstitutional condition is
not an easy one.  The Supreme Court has held that it violates the
First Amendment for the federal government to require public
broadcasting stations that receive federal funds not to
editorialize, see League of Women Voters, 468 U.S. at 366, 402;
for states to subsidize "newspaper and religious, professional,
trade, and sports journals," but not "general interest
magazines," Ark. Writers' Project, Inc. v. Ragland, 481 U.S. 221,
223 (1987); for a state university to subsidize student
publications only on the condition that they do not "primarily
promote[] or manifest[] a particular belief in or about a deity
or an ultimate reality," Rosenberger v. Rector & Visitors of
Univ. of Va., 515 U.S. 819, 823 (1995); and for the federal
government to prevent legal services providers who receive
federal funds from seeking to "amend or otherwise challenge
existing welfare law." Velazquez, 531 U.S. at 537.  On the other
hand, the Supreme Court has held that it does not violate the
First Amendment for the federal government to require healthcare
providers who receive federal funds not to "encourage, promote or
advocate abortion as a method of family planning," Rust, 500 U.S.
at 180; for the federal government to subsidize charitable
organizations only if they do not engage in lobbying activity,
see Regan v. Taxation with Representation, 461 U.S. 540 (1983);
and for the National Endowment for the Arts, in awarding grants
on the basis of artistic excellence, to "take into consideration
general standards of decency and respect for the diverse beliefs
and values of the American Public."  NEA v. Finley, 524 U.S. 569,
572 (1998).
In light of the facts that we discuss above regarding the
operation of public libraries, and the limits of Internet
filtering software, see supra Sections II.D-E, we believe that
the plaintiffs have a good argument that this case is more
analogous to League of Women Voters, Arkansas Writers' Project,
and Velazquez than it is to Rust, Finley and Taxation with
Representation.  Like the law invalidated in League of Women
Voters, which targeted editorializing, and the law invalidated in
Arkansas Writers' Project, which targeted general interest
magazines but not "religious, professional, trade, and sports
journals," the law in this case places content-based restrictions
on public libraries' possible First Amendment right to provide
patrons with access to constitutionally protected material.  See
Arkansas Writers' Project, 481 U.S. at 229 ("[T]he basis on which
Arkansas differentiates between magazines is particularly
repugnant to First Amendment principles: a magazine's tax status
depends entirely on its content.  Above all else, the First
Amendment means that government has no power to restrict
expression because of its message, its ideas, its subject matter,
or its content.") (internal quotation marks and citations
omitted); League of Women Voters, 468 U.S. at 383 ("[T]he scope
of [the challenged statute's] ban is defined solely on the basis
of the content of the suppressed speech.").  See generally
Rosenberger, 515 U.S. at 828 ("It is axiomatic that the
government may not regulate speech based on its substantive
content or the message it conveys.").  Because of the
technological limitations of filtering software described in such
detail above, Congress's requirement that public libraries use
such software is in effect a requirement that public libraries
block a substantial amount of constitutionally protected speech
on the basis of its content.
Plaintiffs' argument that the federal government may not
require public libraries who receive federal funds to restrict
the availability of constitutionally protected Web sites solely
on the basis of the sites' content finds further support in the
role that public libraries have traditionally served in
maintaining First Amendment values.  As evidenced by the many
public libraries that have endorsed the Freedom to Read Statement
and the Library Bill of Rights, see supra Subsection II.D.1,
public libraries seemingly have a duty to challenge prevailing
orthodoxy and make available to the public controversial, yet
constitutionally protected material, even if it means drawing the
ire of the community.  See Bd. of Educ. v. Pico, 457 U.S. 853,
915 (1982) (Rehnquist, J., dissenting) (noting that "public
libraries" are "designed for freewheeling inquiry").
By interfering with public libraries' discretion to make
available to patrons as wide a range of constitutionally
protected speech as possible, the federal government is arguably
distorting the usual functioning of public libraries as places of
freewheeling inquiry.  The Velazquez Court, in invalidating the
federal government's restrictions on the ability of federally
funded legal services providers to challenge the
constitutionality of welfare laws, relied on the manner in which
the restrictions that the federal government placed on legal
services' attorneys' speech distorted the usual functioning of
the judicial system:

[T]he Government seeks to use an existing medium of
expression and to control it, in a class of cases, in
ways which distort its usual functioning. . . .  The
First Amendment forb[ids] the Government from using the
forum in an unconventional way to suppress speech
inherent in the nature of the medium.

531 U.S. at 543.  By the same token, CIPA arguably distorts the
usual functioning of public libraries both by requiring libraries
to: (1) deny patrons access to constitutionally protected speech
that libraries would otherwise provide to patrons; and (2)
delegate decision making to private software developers who
closely guard their selection criteria as trade secrets and who
do not purport to make their decisions on the basis of whether
the blocked Web sites are constitutionally protected or would add
value to a public library's collection.
At all events, CIPA clearly does not seem to serve the
purpose of limiting the extent of government speech given the
extreme diversity of speech on the Internet.  Nor can Congress's
decision to subsidize Internet access be said to promote a
governmental message or constitute governmental speech, even
under a generous understanding of the concept.  As the Court
noted in Reno v. ACLU, 521 U.S. 844 (1997), "[i]t is no
exaggeration to conclude that the content on the Internet is as
diverse as human thought."  Id. at 852 (internal quotation marks
omitted).  Even with software filters in place, the sheer breadth
of speech available on the Internet defeats any claim that CIPA
is intended to facilitate the dissemination of governmental
speech.  Like in Velazquez, "there is no programmatic message of
the kind recognized in Rust and which sufficed there to allow the
Government to specify the advice deemed necessary for its
legitimate objectives."  Velazquez, 531 U.S. at 548.
In sum, we think that the plaintiffs have good arguments
that they may assert an unconstitutional conditions claim by
relying either on the public libraries' First Amendment rights or
on the rights of their patrons.  We also think that the
plaintiffs have a good argument that CIPA's requirement that
public libraries use filtering software distorts the usual
functioning of public libraries in such a way that it constitutes
an unconstitutional condition on the receipt of funds.  We do not
decide these issues, confident that our findings of fact on the
functioning of public libraries, their use of the Internet, and
the technological limitations of Internet filtering software, see
supra Sections II.D-E, would allow the Supreme Court to decide
the unconstitutional conditions claim if the Court deems it
necessary.

       CIPA Sec. 1712(a)(2) contains a provision titled
"Separability," which is codified in the Library Services and
Technology Act, 20 U.S.C. Sec. 9134(f)(6), and provides: "If any
provision of this subsection is held invalid, the remainder of
this subsection shall not be affected thereby."  CIPA section
1721(e) also contained a similar provision that applied to E-rate
funding, although it was not codified in the Communications Act.
 That section, also titled "Separability," provided: "If any
provision of paragraph (5) or (6) of section 254(h) of the
Communications Act of 1934, as amended by this section, or the
application thereof to any person or circumstance is held
invalid, the remainder of such paragraph and the application of
such paragraph to other persons or circumstances shall not be
affected thereby."  CIPA Sec. 1721(e).





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