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 c.i.p.a.
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 ma.s.s 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 a.n.a.lysis 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 Const.i.tution in Cybers.p.a.ce, 45 Emory L.J.
869, 888 (1996) ("Cybers.p.a.ce has no permanent nature, save the nature of a place of unlimited plasticity. We don"t find cybers.p.a.ce, we build it."); see also Lawrence Lessig, The Death of Cybers.p.a.ce, 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 s.e.x, which portray s.e.xual 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 p.o.r.nography, 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 p.o.r.nography, as is the practice of Tacoma"s David Biek, who testified as a government witness. Under either method, public libraries can a.s.sure 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 const.i.tutional. See Fabulous a.s.socs., Inc. v. Pa. Pub. Util. Comm"n, 896 F.2d 780, 787 n.6 (3d Cir. 1990) ("We intimate no opinion on the const.i.tutionality 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 const.i.tutional infirmity of c.i.p.a"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 s.e.xual ident.i.ty. For example, the "Gay and Lesbian Chamber of Southern Nevada," "a forum for the business community to develop relationships within the Las Vegas lesbian, gay transs.e.xual, and bis.e.xual community" was blocked by N2H2 as "Adults Only, p.o.r.nography." The home page of the Lesbian and Gay Havurah of the Long Beach, California Jewish Community Center, was blocked by N2H2 as "Adults Only, p.o.r.nography," by Smartfilter as "s.e.x," and by Websense as "s.e.x."
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, which was blocked by Websense under the "s.e.x" category.
Although in light of our disposition of the plaintiffs"
Dole claim, we do not rule upon plaintiffs" contention that c.i.p.a"s conditioning of funds on the installation of filtering software violates the doctrine of unconst.i.tutional 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" unconst.i.tutional 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 unconst.i.tutional conditions "holds that the government "may not deny a benefit to a person on a basis that infringes his const.i.tutionally protected . . . freedom of speech"
even if he has no ent.i.tlement 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 c.i.p.a imposes an unconst.i.tutional 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 const.i.tutionally 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 unconst.i.tutional 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 const.i.tutionally 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 unconst.i.tutional conditions claim.
It is an open question in this Circuit whether Congress may violate the First Amendment by restricting the speech of public ent.i.ties, such as munic.i.p.alities 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 munic.i.p.alities 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 a.n.a.logous 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 munic.i.p.alities acting in their capacity as employers have First Amendment rights, suggesting that the question whether public ent.i.ties 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 munic.i.p.al 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 a.n.a.lysis, 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 a.s.s"n v. Bd. of Trustees of the Univ. of Ma.s.s., 868 F.2d 473, 481 (1st Cir. 1989) (concluding that the legal services organization run by a state university, "as a state ent.i.ty, itself has no First Amendment rights"); Estiverne v. La. State Bar a.s.s"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 munic.i.p.alities 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 munic.i.p.alities 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, munic.i.p.alities 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 munic.i.p.alities 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 munic.i.p.ality 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 a.s.s"n v. Board of Trustees, supra, 868 F.2d at 482. Thus if federal law imposed a fine on munic.i.p.alities that pa.s.sed 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 munic.i.p.alities 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 munic.i.p.ality 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 (Ma.s.s. 1978), appeal dismissed for want of a substantial federal question, 439 U.S. 1060 (1979), and another to hold that a munic.i.p.ality 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, munic.i.p.al 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 cla.s.s of speech rather than a cla.s.s of speakers) in a similar context in Bellotti. There, the Court invalidated a Ma.s.sachusetts statute that prohibited corporations from spending money to influence ballot initiatives that did not bear directly on their "property, business or a.s.sets." 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 Const.i.tution 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 ent.i.tled to a.s.sert 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 ident.i.ty of its source, whether corporation, a.s.sociation, union, or individual."
Id. at 777.
In view of the foregoing, the notion that public libraries may a.s.sert First Amendment rights for the purpose of making an unconst.i.tutional 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 unconst.i.tutional conditions claims both by the organizations that receive federal funding and by their const.i.tuents. 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 const.i.tutionality of existing welfare law] . . . invalid."); Rust v. Sullivan, 500 U.S. 173, 181 (1991) ("Pet.i.tioners are t.i.tle X grantees and doctors who supervise t.i.tle X funds suing on behalf of themselves and their patients. . . . Pet.i.tioners challenged the regulations on the grounds that . . . they violate the First and Fifth Amendment rights of t.i.tle X clients and the First Amendment rights of t.i.tle 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 c.i.p.a"s requirement that libraries use filtering software const.i.tutes an unconst.i.tutional 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 a.n.a.logous 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 const.i.tutionally 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 const.i.tutionally 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 const.i.tutionally 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 const.i.tutionally 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 const.i.tutionally 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 const.i.tutionality 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 cla.s.s 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, c.i.p.a arguably distorts the usual functioning of public libraries both by requiring libraries to: (1) deny patrons access to const.i.tutionally 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 const.i.tutionally protected or would add value to a public library"s collection.
At all events, c.i.p.a 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 const.i.tute 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 c.i.p.a 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 a.s.sert an unconst.i.tutional 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 c.i.p.a"s requirement that public libraries use filtering software distorts the usual functioning of public libraries in such a way that it const.i.tutes an unconst.i.tutional 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 unconst.i.tutional conditions claim if the Court deems it necessary.
c.i.p.a Sec. 1712(a)(2) contains a provision t.i.tled "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." c.i.p.a 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 t.i.tled "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 circ.u.mstance is held invalid, the remainder of such paragraph and the application of such paragraph to other persons or circ.u.mstances shall not be affected thereby." c.i.p.a Sec. 1721(e).