OCTOBER TERM, 2002
Syllabus
UNITED STATES ET AL.
v. AMERICAN LIBRARY ASSOCIATION,
INC., ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA
No. 02-361. Argued March 5, 2003-Decided June 23, 2003
Two forms of federal assistance help public libraries provide
patrons with Internet access: discounted rates under the E-rate
program and grants under the Library Services and Technology Act
(LSTA). Upon discovering that library patrons, including minors,
regularly search the Internet for pornography and expose others to
pornographic images by leaving them displayed on Internet terminals
or printed at library printers, Congress enacted the Children's
Internet Protection Act (CIPA), which forbids public libraries to
receive federal assistance for Internet access unless they install
software to block obscene or pornographic images and to prevent
minors from accessing material harmful to them. Appellees, a group
of libraries, patrons, Web site publishers, and related parties,
sued the Government, challenging the constitutionality of CIPA's
filtering provisions. Ruling that CIPA is facially unconstitutional
and enjoining the Government from withholding federal assistance
for failure to comply with CIPA, the District Court held,
inter
alia, that Congress had exceeded its authority under the
Spending Clause because any public library that complies with
CIPA's conditions will necessarily violate the First Amendment;
that the CIPA filtering software constitutes a content-based
restriction on access to a public forum that is subject to strict
scrutiny; and that, although the Government has a compelling
interest in preventing the dissemination of obscenity, child
pornography, or material harmful to minors, the use of software
filters is not narrowly tailored to further that interest.
Held: The judgment is reversed. 201 F. Supp. 2d 401,
reversed.
CHIEF JUSTICE REHNQUIST, joined by JUSTICE O'CONNOR, JUSTICE
SCALIA, and JUSTICE THOMAS, concluded:
1. Because public libraries' use of Internet filtering software
does not violate their patrons' First Amendment rights, CIPA does
not induce libraries to violate the Constitution, and is a valid
exercise of Congress' spending power. Congress has wide latitude to
attach conditions to the receipt of federal assistance to further
its policy objectives,
South Dakota v.
Dole, 483 U. S. 203, 206, but
may not "induce" the recipient "to engage in activities that would
themselves be unconstitutional," id., at
195
210. To determine whether libraries would violate the First
Amendment by employing the CIPA filtering software, the Court must
first examine their societal role. To fulfill their traditional
missions of facilitating learning and cultural enrichment, public
libraries must have broad discretion to decide what material to
provide to their patrons. This Court has held in two analogous
contexts that the Government has broad discretion to make
content-based judgments in deciding what private speech to make
available to the public.
Arkansas Ed. Television Comm'n v.
Forbes, 523 U.
S. 666,672-674;
National Endowment for Arts v.
Finley, 524 U.
S. 569, 585-586. Just as forum analysis and heightened judicial
scrutiny were incompatible with the role of public television
stations in the former case and the role of the National Endowment
for the Arts in the latter, so are they incompatible with the broad
discretion that public libraries must have to consider content in
making collection decisions. Thus, the public forum principles on
which the District Court relied are out of place in the context of
this case. Internet access in public libraries is neither a
"traditional" nor a "designated" public forum. See,
e. g.,
Cornelius v.
NAACP Legal Defense &
Ed. Fund,
Inc., 473 U. S.
788, 802-803. Unlike the "Student Activity Fund" at issue in
Rosenberger v.
Rector and Visitors of Univ. of Va.,
515 U. S. 819,
834, Internet terminals are not acquired by a library in order to
create a public forum for Web publishers to express themselves.
Rather, a library provides such access for the same reasons it
offers other library resources: to facilitate research, learning,
and recreational pursuits by furnishing materials of requisite and
appropriate quality. The fact that a library reviews and
affirmatively chooses to acquire every book in its collection, but
does not review every Web site that it makes available, is not a
constitutionally relevant distinction. The decisions by most
libraries to exclude pornography from their print collections are
not subjected to heightened scrutiny; it would make little sense to
treat libraries' judgments to block online pornography any
differently. Moreover, because of the vast quantity of material on
the Internet and the rapid pace at which it changes, libraries
cannot possibly segregate, item by item, all the Internet material
that is appropriate for inclusion from all that is not. While a
library could limit its Internet collection to just those sites it
found worthwhile, it could do so only at the cost of excluding an
enormous amount of valuable information that it lacks the capacity
to review. Given that tradeoff, it is entirely reasonable for
public libraries to reject that approach and instead exclude
certain categories of content, without making individualized
judgments that everything made available has requisite and
appropriate quality. Concerns over filtering software's tendency to
erroneously "overblock" access to constitutionally protected speech
that falls outside the catego-
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196 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
Syllabus
ries software users intend to block are dispelled by the ease
with which patrons may have the filtering software disabled. Pp.
203-209.
2. CIPA does not impose an unconstitutional condition on
libraries that receive E-rate and LSTA subsidies by requiring them,
as a condition on that receipt, to surrender their First Amendment
right to provide the public with access to constitutionally
protected speech. Assuming that appellees may assert an
"unconstitutional conditions" claim, that claim would fail on the
merits. When the Government appropriates public funds to establish
a program, it is entitled to broadly define that program's limits.
Rust v.
Sullivan, 500 U. S. 173,194. As in
Rust, the Government here is not denying a benefit to
anyone, but is instead simply insisting that public funds be spent
for the purpose for which they are authorized: helping public
libraries fulfill their traditional role of obtaining material of
requisite and appropriate quality for educational and informational
purposes. Especially because public libraries have traditionally
excluded pornographic material from their other collections,
Congress could reasonably impose a parallel limitation on its
Internet assistance programs. As the use of filtering software
helps to carry out these programs, it is a permissible condition
under
Rust. Appellees mistakenly contend, in reliance on
Legal Services Corporation v.
Velazquez, 531 U. S. 533, 542-543,
that CIPA's filtering conditions distort the usual functioning of
public libraries. In contrast to the lawyers who furnished legal
aid to the indigent under the program at issue in
Velazquez,
public libraries have no role that pits them against the
Government, and there is no assumption, as there was in that case,
that they must be free of any conditions that their benefactors
might attach to the use of donated funds. Pp. 210-214.
JUSTICE KENNEDY concluded that if, as the Government represents,
a librarian will unblock filtered material or disable the Internet
software filter without significant delay on an adult user's
request, there is little to this case. There are substantial
Government interests at stake here:
The interest in protecting young library users from material
inappropriate for minors is legitimate, and even compelling, as all
Members of the Court appear to agree. Given this interest, and the
failure to show that adult library users' access to the material is
burdened in any significant degree, the statute is not
unconstitutional on its face. If some libraries do not have the
capacity to unblock specific Web sites or to disable the filter or
if it is shown that an adult user's election to view
constitutionally protected Internet material is burdened in some
other substantial way, that would be the subject for an as-applied
challenge, not this facial challenge. pp. 214-215.
JUSTICE BREYER agreed that the "public forum" doctrine is
inapplicable here and that the statute's filtering software
provisions do not vio-
197
late the First Amendment, but would reach that ultimate
conclusion through a different approach. Because the statute raises
special First Amendment concerns, he would not require only a
"rational basis" for the statute's restrictions. At the same time,
"strict scrutiny" is not warranted, for such a limiting and rigid
test would unreasonably interfere with the discretion inherent in
the "selection" of a library's collection. Rather, he would examine
the constitutionality of the statute's restrictions as the Court
has examined speech-related restrictions in other contexts where
circumstances call for heightened, but not "strict,"
scrutiny-where, for example, complex, competing constitutional
interests are potentially at issue or speech-related harm is
potentially justified by unusually strong governmental interests.
The key question in such instances is one of proper fit. The Court
has asked whether the harm to speech-related interests is
disproportionate in light of both the justifications and the
potential alternatives. It has considered the legitimacy of the
statute's objective, the extent to which the statute will tend to
achieve that objective, whether there are other, less restrictive
ways of achieving that objective, and ultimately whether the
statute works speech-related harm that is out of proportion to that
objective. The statute's restrictions satisfy these constitutional
demands. Its objectives-of restricting access to obscenity, child
pornography, and material that is comparably harmful to minors-are
"legitimate," and indeed often "compelling." No clearly superior or
better fitting alternative to Internet software filters has been
presented. Moreover, the statute contains an important exception
that limits the speechrelated harm: It allows libraries to permit
any adult patron access to an "overblocked" Web site or to disable
the software filter entirely upon request. Given the comparatively
small burden imposed upon library patrons seeking legitimate
Internet materials, it cannot be said that any speech-related harm
that the statute may cause is disproportionate when considered in
relation to the statute's legitimate objectives. Pp. 215-220.
REHNQUIST, C. J., announced the judgment of the Court and
delivered an opinion, in which O'CONNOR, SCALIA, and THOMAS, JJ.,
joined. KENNEDY, J.,
post, p. 214, and BREYER, J.,
post, p. 215, filed opinions concurring in the judgment.
STEVENS, J., filed a dissenting opinion,
post, p. 220.
SOUTER, J., filed a dissenting opinion, in which GINSBURG, J.,
joined,
post, p. 231.
Solicitor General Olson argued the cause for
appellants.
With him on the briefs were Assistant Attorney General
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198 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
Opinion of REHNQUIST, C. J.
McCallum, Deputy Solicitor General Kneedler, Irving L.
Gornstein, Barbara L. Herwig, and Jacob M. Lewis.
Paul M. Smith argued the cause for appellees. With him on
the brief for appellees American Library Association, Inc., et al.
were
Theresa A. Chmara, Daniel Mach, Elliot M. Mincberg, and
Lawrence S.
Ottinger. Christopher A. Hansen, Ann Beeson,
Steven R. Shapiro, Charles S.
Sims, Stefan Presser, and
David L. Sobel filed a brief for appellees Multnomah County
Public Library et al. *
CHIEF JUSTICE REHNQUIST announced the judgment of the Court and
delivered an opinion, in which JUSTICE O'CONNOR, JUSTICE SCALIA,
and JUSTICE THOMAS joined.
To address the problems associated with the availability of
Internet pornography in public libraries, Congress enacted
*Briefs of
amici curiae urging reversal were filed for
the State of Texas by
Greg Abbott, Attorney General,
Barry R. McBee, First Assistant Attorney General,
Jeffrey S.
Boyd, Deputy Attorney General,
Philip
A. Lionberger, Solicitor General, and
Amy Warr and
Ryan D. Clinton, Assistant Solicitors General; for the
American Center for Law and Justice et al. by
Jay Alan Sekulow,
Colby M. May, Ben Bull, James M. Henderson, Joel H. Thornton, John
P. Tuskey, and
Laura B. Hernandez; for the American
Civil Rights Union by
Peter Ferrara; for Cities, Mayors, and
County Commissioners by
Kelly Shackelford; for the
Greenville, South Carolina, Public Library et al. by
Kenneth
C.
Bass III; for the National Law Center for Children and
Families et al. by
Kristina A. Bullock, Bruce A. Taylor, and
Janet M. LaRue; and for Sen. Trent Lott et al. by
Brian
Fahling, Stephen M. Crampton, and
Michael J.
DePrimo.
Briefs of
amici curiae urging affirmance were filed for
the Association of American Publishers, Inc., et al. by
R. Bruce
Rich, Jonathan Bloom, and
John B. Morris, Jr.; for the
Brennan Center for Justice by
Burt Neuborne, Laura K. Abel,
and
David S.
Udell; for the Cleveland Public Library
et al. by
David W Ogden; and for Partnership for Progress on
the Digital Divide et al. by
Marjorie Heins.
Briefs of
amici curiae were filed for the National School
Boards Association et al. by
Julie Underwood, Naomi Gittins,
and
Stuart L. Knade; for the Online Policy Group, Inc., et
al. by
Daniel H. Bromberg and
Charles R. A. Morse;
and for Jonathan Wallace d/b/a The Ethical Spectacle by
Michael
B. Green and
Jonathan D. Wallace.
199
the Children's Internet Protection Act (CIPA), 114 Stat.
2763A-335. Under CIPA, a public library may not receive federal
assistance to provide Internet access unless it installs software
to block images that constitute obscenity or child pornography, and
to prevent minors from obtaining access to material that is harmful
to them. The District Court held these provisions facially invalid
on the ground that they induce public libraries to violate patrons'
First Amendment rights. We now reverse.
To help public libraries provide their patrons with Internet
access, Congress offers two forms of federal assistance. First, the
E-rate program established by the Telecommunications Act of 1996
entitles qualifying libraries to buy Internet access at a discount.
110 Stat. 71, 47 U. S. C. § 254(h)(1)(B). In the year ending June
30, 2002, libraries received $58.5 million in such discounts.
Redacted Joint Trial Stipulations of All Parties in Nos.
01-CV-1303, etc. (ED Pa.), ~ 128, p. 16 (hereinafter Jt. Tr.
Stip.). Second, pursuant to the Library Services and Technology Act
(LSTA), 110 Stat. 3009-295, as amended, 20 U. S. C. § 9101
et
seq., the Institute of Museum and Library Services makes grants
to state library administrative agencies to "electronically lin[k]
libraries with educational, social, or information services,"
"assis[t] libraries in accessing information through electronic
networks," and "pa[y] costs for libraries to acquire or share
computer systems and telecommunications technologies." §§
9141(a)(1)(B), (C), (E). In fiscal year 2002, Congress appropriated
more than $149 million in LSTA grants. Jt. Tr. Stip. ~ 185, p. 26.
These programs have succeeded greatly in bringing Internet access
to public libraries: By 2000, 95% of the Nation's libraries
provided public Internet access. J. Bertot & C. McClure, Public
Libraries and the Internet 2000: Summary Findings and Data Tables,
p. 3 (Sept. 7, 2000),
http://www.nclis.gov/statsurv/2000plo.pdf
(all Internet materials as visited Mar. 25, 2003, and available in
Clerk of Court's case file).
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200 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
Opinion of REHNQUIST, C. J.
By connecting to the Internet, public libraries provide patrons
with a vast amount of valuable information. But there is also an
enormous amount of pornography on the Internet, much of which is
easily obtained. 201 F. Supp. 2d 401, 419 (ED Pa. 2002). The
accessibility of this material has created serious problems for
libraries, which have found that patrons of all ages, including
minors, regularly search for online pornography.
Id., at
406. Some patrons also expose others to pornographic images by
leaving them displayed on Internet terminals or printed at library
printers.
Id., at 423.
Upon discovering these problems, Congress became concerned that
the E-rate and LSTA programs were facilitating access to illegal
and harmful pornography. S. Rep. No. 105-226, p. 5 (1998). Congress
learned that adults "us[e] library computers to access pornography
that is then exposed to staff, passersby, and children," and that
"minors acces[s] child and adult pornography in libraries." 1
But Congress also learned that filtering software that blocks
access to pornographic Web sites could provide a reasonably
effective way to prevent such uses of library resources.
Id., at 20-26. By 2000, before Congress enacted CIPA, almost
17% of public libraries used such software on at least some of
their Internet terminals, and 7% had filters on all of them.
Library Research Center of U. Ill., Survey of Internet Access
Management in Public Libraries 8, http://
alexia.lis.uiuc.edu/gslis/research/internet.pdf. A library can
1 The Children's Internet Protection Act: Hearing on S. 97
before the Senate Committee on Commerce, Science, and
Transportation, 106th Cong., 1st Sess., 49 (1999) (prepared
statement of Bruce Taylor, President and Chief Counsel, National
Law Center for Children and Families). See also Obscene Material
Available Via The Internet: Hearing before the Subcommittee on
Telecommunications, Trade, and Consumer Protection of the House
Committee on Commerce, 106th Cong., 2d Sess., 1, 27 (2000) (citing
D. Burt, Dangerous Access, 2000 Edition: Uncovering Internet
Pornography in America's Libraries (2000)) (noting more than 2,000
incidents of patrons, both adults and minors, using library
computers to view online pornography, including obscenity and child
pornography).
201
set such software to block categories of material, such as
"Pornography" or "Violence." 201 F. Supp. 2d, at 428. When a patron
tries to view a site that falls within such a category, a screen
appears indicating that the site is blocked.
Id., at 429.
But a filter set to block pornography may sometimes block other
sites that present neither obscene nor pornographic material, but
that nevertheless trigger the filter. To minimize this problem, a
library can set its software to prevent the blocking of material
that falls into categories like "Education," "History," and
"Medical."
Id., at 428-429. A library may also add or delete
specific sites from a blocking category, id., at 429, and anyone
can ask companies that furnish filtering software to unblock
particular sites, id., at 430.
Responding to this information, Congress enacted CIPA.
It provides that a library may not receive E-rate or LSTA
assistance unless it has "a policy of Internet safety for minors
that includes the operation of a technology protection measure ...
that protects against access" by all persons to "visual depictions"
that constitute "obscen[ity]" or "child pornography," and that
protects against access by minors to "visual depictions" that are
"harmful to minors." 20 U. S. C. §§ 9134(f)(1)(A)(i) and (B)(i); 47
u. S. C. §§ 254(h)(6)(B)(i) and (C)(i). The statute defines a
"[t]echnology protection measure" as "a specific technology that
blocks or filters Internet access to material covered by" CIPA. §
254(h)(7)(I). CIPA also permits the library to "disable" the filter
"to enable access for bona fide research or other lawful purposes."
20 U. S. C. § 9134(f)(3); 47 U. S. C. § 254(h)(6)(D). Under the
Erate program, disabling is permitted "during use by an adult." §
254(h)(6)(D). Under the LSTA program, disabling is permitted during
use by any person. 20 U. S. C. § 9134(f)(3).
Appellees are a group of libraries, library associations,
library patrons, and Web site publishers, including the American
Library Association (ALA) and the Multnomah County Public Library
in Portland, Oregon (Multnomah). They
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202 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
Opinion of REHNQUIST, C. J.
sued the United States and the Government agencies and officials
responsible for administering the E-rate and LSTA programs in
District Court, challenging the constitutionality of CIPA's
filtering provisions. A three-judge District Court convened
pursuant to § 1741(a) of CIPA, 114 Stat. 2763A-351, note following
20 U. S. C. § 700l.
After a trial, the District Court ruled that CIPA was facially
unconstitutional and enjoined the relevant agencies and officials
from withholding federal assistance for failure to comply with
CIPA. The District Court held that Congress had exceeded its
authority under the Spending Clause, U. S. Const., Art. I, § 8, cl.
1, because, in the court's view, "any public library that complies
with CIPA's conditions will necessarily violate the First
Amendment." 201 F. Supp. 2d, at 453. The court acknowledged that
"generally the First Amendment subjects libraries' content-based
decisions about which print materials to acquire for their
collections to only rational [basis] review."
Id., at 462.
But it distinguished libraries' decisions to make certain Internet
material inaccessible. "The central difference," the court stated,
"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."
Ibid. Reasoning
that "the provision of Internet access within a public library ...
is for use by the public ... for expressive activity," the court
analyzed such access as a "designated public forum."
Id., at
457 (citation and internal quotation marks omitted). The District
Court also likened Internet access in libraries to "traditional
public fora ... such as sidewalks and parks" because it "promotes
First Amendment values in an analogous manner."
Id., at
466.
Based on both of these grounds, the court held that the
filtering software contemplated by CIPA was a content-
203
based restriction on access to a public forum, and was therefore
subject to strict scrutiny.
Ibid. Applying this standard,
the District Court held that, although the Government has a
compelling interest "in preventing the dissemination of obscenity,
child pornography, or, in the case of minors, material harmful to
minors," id., at 471, the use of software filters is not narrowly
tailored to further those interests, id., at 479. We noted probable
jurisdiction, 537 U. S. 1017 (2002), and now reverse.
Congress has wide latitude to attach conditions to the receipt
of federal assistance in order to further its policy objectives.
South Dakota v.
Dole, 483 U. S. 203, 206
(1987). But Congress may not "induce" the recipient "to engage in
activities that would themselves be unconstitutional."
Id.,
at 210. To determine whether libraries would violate the First
Amendment by employing the filtering software that CIPA requires,2
we must first examine the role of libraries in our society.
Public libraries pursue the worthy missions of facilitating
learning and cultural enrichment. Appellee ALA's Library Bill of
Rights states that libraries should provide "[b]ooks and other ...
resources ... for the interest, information, and enlightenment of
all people of the community the library
2JUSTICE STEVENS misapprehends the analysis we must perform to
determine whether CIPA exceeds Congress' authority under the
Spending Clause. He asks and answers whether it is constitutional
for Congress to "impose [CIPA's filtering] requirement" on public
libraries, instead of "allowing local decisionmakers to tailor
their responses to local problems."
Post, at 220 (dissenting
opinion). But under our well-established Spending Clause precedent,
that is not the proper inquiry. Rather, as the District Court
correctly recognized, 201 F. Supp. 2d 401, 453 (ED Pa. 2002), we
must ask whether the condition that Congress requires "would ... be
unconstitutional" if performed by the library itself.
Dole,
483 U. S., at 210.
CIPA does not directly regulate private conduct; rather,
Congress has exercised its Spending Power by specifying conditions
on the receipt of federal funds. Therefore,
Dole provides
the appropriate framework for assessing CIPA's
constitutionality.
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204 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
Opinion of REHNQUIST, C. J.
serves." 201 F. Supp. 2d, at 420 (internal quotation marks
omitted). To fulfill their traditional missions, public libraries
must have broad discretion to decide what material to provide to
their patrons. Although they seek to provide a wide array of
information, their goal has never been to provide "universal
coverage."
Id., at 421. Instead, public libraries seek to
provide materials "that would be of the greatest direct benefit or
interest to the community."
Ibid. To this end, libraries
collect only those materials deemed to have "requisite and
appropriate quality."
Ibid. See W. Katz, Collection
Development: The Selection of Materials for Libraries 6 (1980)
("The librarian's responsibility ... is to separate out the gold
from the garbage, not to preserve everything"); F. Drury, Book
Selection xi (1930) ("[I]t is the aim of the selector to give the
public, not everything it wants, but the best that it will read or
use to advantage"); App. 636 (Rebuttal Expert Report of Donald G.
Davis, Jr.) ("A hypothetical collection of everything that has been
produced is not only of dubious value, but actually detrimental to
users trying to find what they want to find and really need").
We have held in two analogous contexts that the government has
broad discretion to make content-based judgments in deciding what
private speech to make available to the public. In
Arkansas Ed.
Television Comm'n v.
Forbes, 523 U. S. 666, 672-673
(1998), we held that public forum principles do not generally apply
to a public television station's editorial judgments regarding the
private speech it presents to its viewers. "[B]road 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."
Id., at 673. Recognizing a broad right of
public access "would [also] risk implicating the courts in
judgments that should be left to the exercise of journalistic
discretion."
Id., at 674.
205
Similarly, in
National Endowment for Arts v.
Finley,
524 U. S. 569 (1998), we upheld an art funding program that
required the National Endowment for the Arts (NEA) to use
content-based criteria in making funding decisions. We explained
that "[a]ny content-based considerations that may be taken into
account in the grant-making process are a consequence of the nature
of arts funding."
Id., at 585. In particular, "[t]he very
assumption of the NEA is that grants will be awarded according to
the 'artistic worth of competing applicants,' and absolute
neutrality is simply inconceivable."
Ibid. (some internal
quotation marks omitted). We expressly declined to apply forum
analysis, reasoning that it would conflict with "NEA's mandate ...
to make esthetic judgments, and the inherently content-based
'excellence' threshold for NEA support."
Id., at 586.
The principles underlying
Forbes and
Finley also
apply to a public library's exercise of judgment in selecting the
material it provides to its patrons. Just as forum analysis and
heightened judicial scrutiny are incompatible with the role of
public television stations and the role of the NEA, they are also
incompatible with the discretion that public libraries must have to
fulfill their traditional missions. Public library staffs
necessarily consider content in making collection decisions and
enjoy broad discretion in making them.
The public forum principles on which the District Court relied,
201 F. Supp. 2d, at 457-470, are out of place in the context of
this case. Internet access in public libraries is neither a
"traditional" nor a "designated" public forum. See
Cornelius
v.
NAACP Legal Defense &
Ed. Fund, Inc., 473 U. S. 788, 802 (1985)
(describing types of forums). First, this resource-which did not
exist until quite recently-has not "immemorially been held in trust
for the use of the public and, time out of mind, ... been used for
purposes of assembly, communication of thoughts between citizens,
and discussing public questions."
International Soc. for Krishna
Consciousness, Inc. v.
Lee, 505 U. S. 672, 679 (1992)
(internal quo-
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206 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
Opinion of REHNQUIST, C. J.
tation marks omitted). We have "rejected the view that
traditional public forum status extends beyond its historic
confines."
Forbes, supra, at 678. The doctrines surrounding
traditional public forums may not be extended to situations where
such history is lacking.
Nor does Internet access in a public library satisfy our
definition of a "designated public forum." To create such a forum,
the government must make an affirmative choice to open up its
property for use as a public forum.
Cornel ius, supra, at
802-803;
Perry Ed. Assn. v.
Perry Local Educators'
Assn., 460 U. S.
37, 45 (1983). "The government does not create a public forum
by inaction or by permitting limited discourse, but only by
intentionally opening a nontraditional forum for public discourse."
Cornelius, supra, at 802. The District Court likened public
libraries' Internet terminals to the forum at issue in
Rosenberger v.
Rector and Visitors of Univ. of Va.,
515 U. S. 819
(1995). 201 F. Supp. 2d, at 465. In
Rosenberger, we
considered the "Student Activity Fund" established by the
University of Virginia that subsidized all manner of student
publications except those based on religion. We held that the fund
had created a limited public forum by giving public money to
student groups who wished to publish, and therefore could not
discriminate on the basis of viewpoint.
The situation here is very different. A public library does not
acquire Internet terminals in order to create a public forum for
Web publishers to express themselves, any more than it collects
books in order to provide a public forum for the authors of books
to speak. It provides Internet access, not to "encourage a
diversity of views from private speakers,"
Rosenberger,
supra, at 834, but for the same reasons it offers other library
resources: to facilitate research, learning, and recreational
pursuits by furnishing materials of requisite and appropriate
quality. See
Cornelius, supra, at 805 (noting, in upholding
limits on participation in the Combined Federal Campaign (CFC),
that "[t]he Government did not
207
create the CFC for purposes of providing a forum for expressive
activity"). As Congress recognized, "[t]he Internet is simply
another method for making information available in a school or
library." S. Rep. No. 106-141, p. 7 (1999). It is "no more than a
technological extension of the book stack."
Ibid.3
The District Court disagreed because, whereas a library reviews
and affirmatively chooses to acquire every book in its collection,
it does not review every Web site that it makes available. 201 F.
Supp. 2d, at 462-463. Based on this distinction, the court reasoned
that a public library enjoys less discretion in deciding which
Internet materials to make
3 Even if appellees had proffered more persuasive evidence that
public libraries intended to create a forum for speech by
connecting to the Internet, we would hesitate to import "the public
forum doctrine ... wholesale into" the context of the Internet.
Denver Area Ed. Telecommunications Consortium, Inc. v.
FCC, 518 U. S.
727, 749 (1996) (opinion of BREYER, J.). "[W]e are wary of the
notion that a partial analogy in one context, for which we have
developed doctrines, can compel a full range of decisions in such a
new and changing area."
Ibid.
The dissents agree with the District Court that less restrictive
alternatives to filtering software would suffice to meet Congress'
goals.
Post, at 223 (opinion of STEVENS, J.) (quoting 201 F.
Supp. 2d, at 410);
post, at 234 (opinion of SOUTER, J.)
(quoting 201 F. Supp. 2d, at 422-427). But we require the
Government to employ the least restrictive means only when the
forum is a public one and strict scrutiny applies. For the reasons
stated above, see
supra, at 205-208, such is not the case
here. In deciding not to collect pornographic material from the
Internet, a public library need not satisfy a court that it has
pursued the least restrictive means of implementing that
decision.
In any case, the suggested alternatives have their own
drawbacks.
Close monitoring of computer users would be far more intrusive
than the use of filtering software, and would risk transforming the
role of a librarian from a professional to whom patrons turn for
assistance into a compliance officer whom many patrons might wish
to avoid. Moving terminals to places where their displays cannot
easily be seen by other patrons, or installing privacy screens or
recessed monitors, would not address a library's interest in
preventing patrons from deliberately using its computers to view
online pornography. To the contrary, these alternatives would make
it
easier for patrons to do so.
208
208 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
Opinion of REHNQUIST, C. J.
available than in making book selections.
Ibid. We do not
find this distinction constitutionally relevant. A library's
failure to make quality-based judgments about all the material it
furnishes from the Web does not somehow taint the judgments it does
make. A library's need to exercise judgment in making collection
decisions depends on its traditional role in identifying suitable
and worthwhile material; it is no less entitled to play that role
when it collects material from the Internet than when it collects
material from any other source. Most libraries already exclude
pornography from their print collections because they deem it
inappropriate for inclusion. We do not subject these decisions to
heightened scrutiny; it would make little sense to treat libraries'
judgments to block online pornography any differently, when these
judgments are made for just the same reason.
Moreover, because of the vast quantity of material on the
Internet and the rapid pace at which it changes, libraries cannot
possibly segregate, item by item, all the Internet material that is
appropriate for inclusion from all that is not. While a library
could limit its Internet collection to just those sites it found
worthwhile, it could do so only at the cost of excluding an
enormous amount of valuable information that it lacks the capacity
to review. Given that tradeoff, it is entirely reasonable for
public libraries to reject that approach and instead exclude
certain categories of content, without making individualized
judgments that everything they do make available has requisite and
appropriate quality.
Like the District Court, the dissents fault the tendency of
filtering software to "overblock"-that is, to erroneously block
access to constitutionally protected speech that falls outside the
categories that software users intend to block. See
post, at
221-222 (opinion of STEVENS, J.);
post, at 233-234 (opinion
of SOUTER, J.). Due to the software's limitations, "[m]any
erroneously blocked [Web] pages contain content
209
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.'"
201 F. Supp. 2d, at 449. Assuming that such erroneous blocking
presents constitutional difficulties, any such concerns are
dispelled by the ease with which patrons may have the filtering
software disabled. When a patron encounters a blocked site, he need
only ask a librarian to unblock it or (at least in the case of
adults) disable the filter. As the District Court found, libraries
have the capacity to permanently unblock any erroneously blocked
site, id., at 429, and the Solicitor General stated at oral
argument that a "library may ... eliminate the filtering with
respect to specific sites ... at the request of a patron," Tr. of
Oral Arg. 4. With respect to adults, CIPA also expressly authorizes
library officials to "disable" a filter altogether "to enable
access for bona fide research or other lawful purposes." 20 U. S.
C. § 9134(f)(3) (disabling permitted for both adults and minors);
47 U. S. C. § 254(h)(6)(D) (disabling permitted for adults). The
Solicitor General confirmed that a "librarian can, in response to a
request from a patron, unblock the filtering mechanism altogether,"
Tr. of Oral Arg. 11, and further explained that a patron would not
"have to explain ... why he was asking a site to be unblocked or
the filtering to be disabled," id., at 4. The District Court viewed
unblocking and disabling as inadequate because some patrons may be
too embarrassed to request them. 201 F. Supp. 2d, at 411. But the
Constitution does not guarantee the right to acquire information at
a public library without any risk of embarrassment.4
4 The dissents argue that overblocking will "'reduce the adult
population ... to reading only what is fit for children.'''
Post, at 222, n. 2 (opinion of STEVENS, J.) (quoting
Butler v.
Michigan, 352 U. S. 380, 383
(1957)). See also
post, at 222, and n. 2 (citing
Ashcroft v.
Free Speech Coalition, 535 U. S. 234, 252
(2002);
United States v.
Playboy Entertainment
Group,
210
210 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
Opinion of REHNQUIST, C. J.
Appellees urge us to affirm the District Court's judgment on the
alternative ground that CIPA imposes an unconstitutional condition
on the receipt of federal assistance. Under this doctrine, "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."
Board of
Comm'rs, Wabaunsee Cty. v.
Umbehr, 518 U. S. 668, 674 (1996)
(quoting
Perry v.
Sindermann, 408 U. S. 593, 597
(1972)). Appellees argue that CIPA imposes an unconstitutional
condition on libraries that 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. The Government
counters that this claim fails because Government entities do not
have First Amendment rights. See
Columbia Broadcasting System,
Inc. v.
Democratic National Committee, 412 U. S. 94,
Inc., 529
U. S. 803, 814 (2000); and
Reno v.
American Civil
Liberties Union, 521 U. S. 844, 875
(1997)); see
post, at 237-238 (opinion of SOUTER, J.). But
these cases are inapposite because they addressed Congress' direct
regulation of private conduct, not exercises of its Spending
Power.
The dissents also argue that because some library patrons would
not make specific unblocking requests, the interest of authors of
blocked Internet material "in reaching the widest possible audience
would be abridged."
Post, at 225 (opinion of STEVENS, J.);
see
post, at 242-243, n. 8 (opinion of SOUTER, J.). But this
mistakes a public library's purpose for acquiring Internet
terminals: A library does so to provide its patrons with materials
of requisite and appropriate quality, not to create a public forum
for Web publishers to express themselves. See
supra, at
206-208.
JUSTICE STEVENS further argues that, because some libraries'
procedures will make it difficult for patrons to have blocked
material unblocked, CIPA "will create a significant prior restraint
on adult access to protected speech."
Post, at 225. But this
argument, which the District Court did not address, mistakenly
extends prior restraint doctrine to the context of public
libraries' collection decisions. A library's decision to use
filtering software is a collection decision, not a restraint on
private speech. Contrary to JUSTICE STEVENS' belief, a public
library does not have an obligation to add material to its
collection simply because the material is constitutionally
protected.
211
139 (1973) (Stewart, J., concurring) ("The First Amendment
protects the press
from governmental interference; it
confers no analogous protection
on the government"); id., at
139, n. 7 (" 'The purpose of the First Amendment is to protect
private expression'" (quoting T. Emerson, The System of Freedom of
Expression 700 (1970))). See also
Warner Cable Communications,
Inc., v.
Niceville, 911 F.2d
634, 638 (CAll 1990);
Student Govt. Assn. v.
Board of
Trustees of the Univ. of Mass., 868 F.2d
473,481 (CAl1989);
Estiverne v.
Louisiana State Bar
Assn., 863 F.2d
371, 379 (CAS 1989).
We need not decide this question because, even assuming that
appellees may assert an "unconstitutional conditions" claim, this
claim would fail on the merits. Within broad limits, "when the
Government appropriates public funds to establish a program it is
entitled to define the limits of that program."
Rust v.
Sullivan, 500
U. S. 173, 194 (1991). In
Rust, Congress had
appropriated federal funding for family planning services and
forbidden the use of such funds in programs that provided abortion
counseling.
Id., at 178. Recipients of these funds
challenged this restriction, arguing that it impermissibly
conditioned the receipt of a benefit on the relinquishment of their
constitutional right to engage in abortion counseling.
Id.,
at 196. We rejected that claim, recognizing that "the Government
[was] not denying a benefit to anyone, but [was] instead simply
insisting that public funds be spent for the purposes for which
they were authorized."
Ibid.
The same is true here. The E-rate and LSTA programs were
intended to help public libraries fulfill their traditional role of
obtaining material of requisite and appropriate quality for
educational and informational purposes.5 Congress
5 See 20 U. S. C. § 9121 ("It is the purpose of [LSTA] (2) to
stimulate excellence and promote access to learning and information
resources in all types of libraries for individuals of all ages");
S. Conf. Rep. No. 104-230, p. 132 (1996) (The E-rate program "will
help open new worlds of knowledge, learning and education to all
Americans .... [It is] intended, for
212
212 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
Opinion of REHNQUIST, C. J.
may certainly insist that these "public funds be spent for the
purposes for which they were authorized."
Ibid. Especially
because public libraries have traditionally excluded pornographic
material from their other collections, Congress could reasonably
impose a parallel limitation on its Internet assistance programs.
As the use of filtering software helps to carry out these programs,
it is a permissible condition under
Rust.
JUSTICE STEVENS asserts the premise that "[a] federal statute
penalizing a library for failing to install filtering software on
every one of its Internet-accessible computers would unquestionably
violate [the First] Amendment."
Post, at 226. See also
post, at 230-231. But-assuming again that public libraries
have First Amendment rights-CIPA does not "penalize" libraries that
choose not to install such software, or deny them the right to
provide their patrons with unfiltered Internet access. Rather, CIPA
simply reflects Congress' decision not to subsidize their doing so.
To the extent that libraries wish to offer unfiltered access, they
are free to do so without federal assistance. " 'A refusal to fund
protected activity, without more, cannot be equated with the
imposition of a "penalty" on that activity.'"
Rust, supra,
at 193 (quoting
Harris v.
McRae, 448 U. S. 297, 317, n. 19
(1980)). "'[A] legislature's decision not to subsidize the exercise
of a fundamental right does not infringe the right.'"
Rust,
supra, at 193 (quoting
Regan v.
Taxation With
Representation of Wash., 461 U. S. 540, 549
(1983)).6
example, to provide the ability to browse library collections,
review the collections of museums, or find new information on the
treatment of an illness, to Americans everywhere via ...
libraries").
6 These holdings, which JUSTICE STEVENS ignores, also make clear
that his reliance on
Rutan v.
Republican Party of
Ill., 497 U. S.
62 (1990),
Elrod v.
Burns, 427 U. S. 347 (1976), and
Wieman v.
Updegraff, 344 U. S. 183 (1952), is
misplaced. See
post, at 227. The invalidated state action in
those cases involved true penalties, such as denial of a promotion
or outright discharge from employment, not nonsubsidies.
213
Appellees mistakenly contend, in reliance on
Legal Services
Corporation v.
Velazquez, 531 U. S. 533 (2001),
that CIPA's filtering conditions "[d]istor[t] the [u]sual
[f]unctioning of [p]ublic [l]ibraries." Brief for Appellees ALA et
al. 40 (citing
Velazquez, supra, at 543); Brief for
Appellees Multnomah et al. 47-48 (same). In
Velazquez, the
Court concluded that a Government program of furnishing legal aid
to the indigent differed from the program in
Rust "[i]n
thee] vital respect" that the role of lawyers who represent clients
in welfare disputes is to advocate
against the Government,
and there was thus an assumption that counsel would be free of
state control. 531 U. S., at 542-543. The Court concluded that the
restriction on advocacy in such welfare disputes would distort the
usual functioning of the legal profession and the federal and state
courts before which the lawyers appeared. Public libraries, by
contrast, have no comparable role that pits them against the
Government, and there is no comparable assumption that they must be
free of any conditions that their benefactors might attach to the
use of donated funds or other assistance.7
7 Relying on
Velazquez, JUSTICE STEVENS argues mistakenly
that
Rust is inapposite because that case "only involved,
and only applies to, ... situations in which the government seeks
to communicate a specific message,"
post, at 228, and unlike
the Title X program in
Rust, the E-rate and LSTA programs
"are not designed to foster or transmit any particular governmental
message."
Post, at 229. But he misreads our cases discussing
Rust, and again misapprehends the purpose of providing
Internet terminals in public libraries.
Velazquez held only
that viewpointbased restrictions are improper "'when 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.''' 531 U. S., at 542
(quoting
Rosenberger v.
Rector and Visitors of Univ. of
Va., 515 U. S.
819, 834 (1995) (emphasis added)). See also 531 U. S., at 542
("[T]he salient point is that, like the program in
Rosenberger, the LSC [Legal Services Corporation] program
was designed
to facilitate private speech ... " (emphasis
added));
Board of Regents of Univ. of Wis. System v.
Southworth, 529 U. S. 217, 229 (2000)
("The University of Wisconsin
214
214 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
KENNEDY, J., concurring in judgment
Because public libraries' use of Internet filtering software
does not violate their patrons' First Amendment rights, CIPA does
not induce libraries to violate the Constitution, and is a valid
exercise of Congress' spending power. Nor does CIPA impose an
unconstitutional condition on public libraries. Therefore, the
judgment of the District Court for the Eastern District of
Pennsylvania is
Reversed.
JUSTICE KENNEDY, concurring in the judgment.
If, on the request of an adult user, a librarian will unblock
filtered material or disable the Internet software filter without
significant delay, there is little to this case. The Government
represents this is indeed the fact. Tr. of Oral Arg. 11;
ante, at 209 (plurality opinion).
The District Court, in its "Preliminary Statement," did say that
"the unblocking may take days, and may be unavailable, especially
in branch libraries, which are often less well staffed than main
libraries." 201 F. Supp. 2d 401, 411 (ED Pa.2002). See also
post, at 232-233 (SOUTER, J., dissenting). That statement,
however, does not appear to be a specific finding. It was not the
basis for the District Court's decision in any event, as the court
assumed that "the disabling provisions permit public libraries to
allow a patron access to any speech that is constitutionally
protected with respect to that patron." 201 F. Supp. 2d, at
485-486.
exacts the fee at issue for the sole purpose of facilitating the
free and open exchange of ideas");
Rosenberger, supra, at
830, 834 ("The [Student Activities Fund] is a forum"; "[T]he
University ... expends funds to encourage a diversity of views from
private speakers"). Indeed, this very distinction led us to state
in
Southworth that that case did not implicate our
unconstitutional conditions jurisprudence. 529 U. S., at 229 ("The
case we decide here ... does not raise the issue of the
government's right ... to use its own funds to advance a particular
message"). As we have stated above,
supra, at 206-208,
public libraries do not install Internet terminals to provide a
forum for Web publishers to express themselves, but rather to
provide patrons with online material of requisite and appropriate
quality.
215
If some libraries do not have the capacity to unblock specific
Web sites or to disable the filter or if it is shown that an adult
user's election to view constitutionally protected Internet
material is burdened in some other substantial way, that would be
the subject for an as-applied challenge, not the facial challenge
made in this case. See
post, at 219-220 (BREYER, J.,
concurring in judgment).
There are, of course, substantial Government interests at stake
here. The interest in protecting young library users from material
inappropriate for minors is legitimate, and even compelling, as all
Members of the Court appear to agree. Given this interest, and the
failure to show that the ability of adult library users to have
access to the material is burdened in any significant degree, the
statute is not unconstitutional on its face. For these reasons, I
concur in the judgment of the Court.
JUSTICE BREYER, concurring in the judgment.
The Children's Internet Protection Act (Act) sets conditions for
the receipt of certain Government subsidies by public libraries.
Those conditions require the libraries to install on their
Internet-accessible computers technology, say, filtering software,
that will help prevent computer users from gaining Internet access
to child pornography, obscenity, or material comparably harmful to
minors. 20 U. S. C. §§ 9134(f)(1)(A)(i) and (B)(i); 47 u. S. C. §§
254(h)(6)(B)(i) and (C)(i). The technology, in its current form,
does not function perfectly, for to some extent it also screens out
constitutionally protected materials that fall outside the scope of
the statute (i.
e., "overblocks") and fails to prevent
access to some materials that the statute deems harmful (i.
e., "underblocks"). See 201 F. Supp. 2d 401, 448-449 (ED Pa.
2002);
ante, at 208-209 (plurality opinion). In determining
whether the statute's conditions consequently violate the First
Amendment, the plurality first finds the "public forum" doctrine
inapplicable,
ante, at 205-208, and then holds that the
statutory provisions are constitutional. I agree with
216
216 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
BREYER, J., concurring in judgment
both determinations. But I reach the plurality's ultimate
conclusion in a different way.
In ascertaining whether the statutory provisions are
constitutional, I would apply a form of heightened scrutiny,
examining the statutory requirements in question with special care.
The Act directly restricts the public's receipt of information. See
Stanley v.
Georgia, 394 U. S. 557, 564 (1969)
("[T]he Constitution protects the right to receive information and
ideas");
Reno v.
American Civil Liberties Union,
521 U. S. 844,
874 (1997). And it does so through limitations imposed by outside
bodies (here Congress) upon two critically important sources of
information-the Internet as accessed via public libraries. See
ante, at 200, 203-204 (plurality opinion);
post, at
225-226 (STEVENS, J., dissenting);
Board of Ed., Island Trees
Union Free School Dist. No. 26 v.
Pico, 457 U. S. 853, 915 (1982)
(REHNQUIST, J., dissenting) (describing public libraries as places
"designed for freewheeling inquiry"). See also
Reno, supra,
at 853, 868 (describing the Internet as a "vast democratic" medium
and the World Wide Web, in part, as "comparable, from the readers'
viewpoint, to ... a vast library");
Ashcroft v.
American
Civil Liberties Union, 535 U. S. 564, 566
(2002). For that reason, we should not examine the statute's
constitutionality as if it raised no special First Amendment
concern-as if, like tax or economic regulation, the First Amendment
demanded only a "rational basis" for imposing a restriction. Nor
should we accept the Government's suggestion that a presumption in
favor of the statute's constitutionality applies. See,
e.
g.,
201
At the same time, in my view, the First Amendment does not here
demand application of the most limiting constitutional
approach-that of "strict scrutiny." The statutory restriction in
question is, in essence, a kind of "selection" restriction (a kind
of editing). It affects the kinds and amount of materials that the
library can present to its pa-
217
trons. See
ante, at 204, 207-208 (plurality opinion). And
libraries often properly engage in the selection of materials,
either as a matter of necessity (i.
e., due to the scarcity
of resources) or by design (i.
e., in accordance with
collection development policies). See,
e. g., 201 F. Supp.
2d, at 408-409, 421, 462;
ante, at 204, 208 (plurality
opinion). To apply "strict scrutiny" to the "selection" of a
library's collection (whether carried out by public libraries
themselves or by other community bodies with a traditional legal
right to engage in that function) would unreasonably interfere with
the discretion necessary to create, maintain, or select a library's
"collection" (broadly defined to include all the information the
library makes available). Cf.
Miami Herald Publishing Co. v.
Tornillo, 418
U. S. 241, 256-258 (1974) (protecting newspaper's exercise of
editorial control and judgment). That is to say, "strict scrutiny"
implies too limiting and rigid a test for me to believe that the
First Amendment requires it in this context.
Instead, I would examine the constitutionality of the Act's
restrictions here as the Court has examined speech-related
restrictions in other contexts where circumstances call for
heightened, but not "strict," scrutiny-where, for example, complex,
competing constitutional interests are potentially at issue or
speech-related harm is potentially justified by unusually strong
governmental interests. Typically the key question in such
instances is one of proper fit. See,
e. g.,
Board of
Trustees of State Univ. of N.
Y. v.
Fox, 492 U. S. 469 (1989);
Denver Area Ed. Telecommunications Consortium, Inc. v.
FCC, 518 U. S.
727, 740-747 (1996) (plurality opinion);
Turner Broadcasting
System, Inc. v.
FCC, 520 U. S. 180, 227 (1997)
(BREYER, J., concurring in part);
Red Lion Broadcasting Co.
v.
FCC, 395 U.
S. 367, 389-390 (1969).
In such cases the Court has asked whether the harm to
speech-related interests is disproportionate in light of both the
justifications and the potential alternatives. It has considered
the legitimacy of the statute's objective, the extent
218
218 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
BREYER, J., concurring in judgment
to which the statute will tend to achieve that objective,
whether there are other, less restrictive ways of achieving that
objective, and ultimately whether the statute works speech-related
harm that, in relation to that objective, is out of proportion. In
Fox, supra, at 480, for example, the Court stated:
"What our decisions require is a 'fit' between the legislature's
ends and the means chosen to accomplish those ends-a fit that is
not necessarily perfect, but reasonable; that represents not
necessarily the single best disposition but one whose scope is in
proportion to the interest served; that employs not necessarily the
least restrictive means but, as we have put it in the other
contexts ... , a means narrowly tailored to achieve the desired
objective." (Internal quotation marks and citations omitted.)
Cf.,
e. g., Central Hudson Gas &
Elec. Corp.
v.
Public Servo Comm'n of N.
Y., 447 U. S. 557, 564
(1980);
United States v.
O'Brien, 391 U. S. 367, 377
(1968);
Clark v.
Community for Creative Non-Violence,
468 U. S. 288,
293 (1984). This approach does not substitute a form of "balancing"
for less flexible, though more speech-protective, forms of "strict
scrutiny." Rather, it
supplements the latter with an
approach that is more flexible but nonetheless provides the
legislature with less than ordinary leeway in light of the fact
that constitutionally protected expression is at issue. Cf.
Fox,
supra, at 480-481;
Virginia Bd. of Pharmacy v.
Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 769773
(1976).
The Act's restrictions satisfy these constitutional demands.
The Act seeks to restrict access to obscenity, child
pornography, and, in respect to access by minors, material that is
comparably harmful. These objectives are "legitimate," and indeed
often "compelling." See,
e. g., Miller v.
California,
413 U. S. 15, 18
(1973) (interest in prohibiting access to
219
obscene material is "legitimate");
Reno, 521 U. S., at
869-870 (interest in "shielding" minors from exposure to indecent
material is "'compelling' ");
New York v.
Ferber,
458 U. S. 747,
756-757 (1982) (same). As the District Court found, software
filters "provide a relatively cheap and effective" means of
furthering these goals. 201 F. Supp. 2d, at 448. Due to present
technological limitations, however, the software filters both
"overblock," screening out some perfectly legitimate material, and
"underblock," allowing some obscene material to escape detection by
the filter.
Id., at 448449. See
ante, at 208-209
(plurality opinion). But no one has presented any clearly superior
or better fitting alternatives. See
ante, at 207, n. 3
(plurality opinion).
At the same time, the Act contains an important exception that
limits the speech-related harm that "overblocking" might cause. As
the plurality points out, the Act allows libraries to permit any
adult patron access to an "overblocked" Web site; the adult patron
need only ask a librarian to unblock the specific Web site or,
alternatively, ask the librarian, "Please disable the entire
filter." See
ante, at 209; 20 U. S. C. § 9134(f)(3)
(permitting library officials to "disable a technology protection
measure ... to enable access for bona fide research or other lawful
purposes"); 47 U. S. C. § 254(h)(6)(D) (same).
The Act does impose upon the patron the burden of making this
request. But it is difficult to see how that burden (or any delay
associated with compliance) could prove more onerous than
traditional library practices associated with segregating library
materials in, say, closed stacks, or with interlibrary lending
practices that require patrons to make requests that are not
anonymous and to wait while the librarian obtains the desired
materials from elsewhere. Perhaps local library rules or practices
could further restrict the ability of patrons to obtain
"overblocked" Internet material. See,
e. g.,
In re
Federal-State Joint Board on Universal Service: Children's Internet
Protection Act, 16 FCC Rcd.
220
220 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
STEVENS, J., dissenting
8182, 8183, ~ 2, 8204, ~ 53 (2001) (leaving determinations
regarding the appropriateness of compliant Internet safety policies
and their disabling to local communities). But we are not now
considering any such local practices. We here consider only a
facial challenge to the Act itself.
Given the comparatively small burden that the Act imposes upon
the library patron seeking legitimate Internet materials, I cannot
say that any speech-related harm that the Act may cause is
disproportionate when considered in relation to the Act's
legitimate objectives. I therefore agree with the plurality that
the statute does not violate the First Amendment, and I concur in
the judgment.
JUSTICE STEVENS, dissenting.
"To fulfill their traditional missions, public libraries must
have broad discretion to decide what material to provide their
patrons."
Ante, at 204. Accordingly, I agree with the
plurality that it is neither inappropriate nor unconstitutional for
a local library to experiment with filtering software as a means of
curtailing children's access to Internet Web sites displaying
sexually explicit images. I also agree with the plurality that the
7% of public libraries that decided to use such software on
all of their Internet terminals in 2000 did not act
unlawfully.
Ante, at 200. Whether it is constitutional for
the Congress of the United States to impose that requirement on the
other 93%, however, raises a vastly different question. Rather than
allowing local decisionmakers to tailor their responses to local
problems, the Children's Internet Protection Act (CIPA) operates as
a blunt nationwide restraint on adult access to "an enormous amount
of valuable information" that individual librarians cannot possibly
review.
Ante, at 208. Most of that information is
constitutionally protected speech. In my view, this restraint is
unconstitutional.
221
I
The unchallenged findings of fact made by the District Court
reveal fundamental defects in the filtering software that is now
available or that will be available in the foreseeable future.
Because the software relies on key words or phrases to block
undesirable sites, it does not have the capacity to exclude a
precisely defined category of images. As the District Court
explained:
"[T]he search engines that software companies use for harvesting
are able to search text only, not images. This is of critical
importance, because CIP A, by its own terms, covers only 'visual
depictions.' 20 U. s. C. § 9134(f)(1)(A)(i); 47 U. s. C. §
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." 201 F. Supp. 2d 401,
431-432 (ED Pa. 2002).
222
222 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
STEVENS, J., dissenting
Given the quantity and ever-changing character of Web sites
offering free sexually explicit material,l it is inevitable that a
substantial amount of such material will never be blocked. Because
of this "underblocking," the statute will provide parents with a
false sense of security without really solving the problem that
motivated its enactment. Conversely, the software's reliance on
words to identify undesirable sites necessarily results in the
blocking of thousands of pages that "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.'"
Id.,
at 449. In my judgment, a statutory blunderbuss that mandates this
vast amount of "overblocking" abridges the freedom of speech
protected by the First Amendment.
The effect of the overblocking is the functional equivalent of a
host of individual decisions excluding hundreds of thousands of
individual constitutionally protected messages from Internet
terminals located in public libraries throughout the Nation.
Neither the interest in suppressing unlawful speech nor the
interest in protecting children from access to harmful materials
justifies this overly broad restriction on adult access to
protected speech. "The Government may not suppress lawful speech as
the means to suppress unlawful speech."
Ashcroft v.
Free
Speech Coalition, 535 U. S. 234, 255
(2002).2
1 "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." 201 F. Supp. 2d 401, 419 (ED
Pa. 2002).
2We have repeatedly reaffirmed the holding in
Butler v.
Michigan, 352 U. S. 380, 383 (1957), that the State may not
"reduce the adult population ... to reading only what is fit for
children." See
Ashcroft v.
Free Speech Coalition, 535
U. S., at 252;
United States v.
Playboy Entertainment
Group, Inc., 529
U. S. 803, 814 (2000) ("[T]he objective of shielding chil-
223
Although CIPA does not permit any experimentation, the District
Court expressly found that a variety of alternatives less
restrictive are available at the local level:
"[L]ess 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." 201 F. Supp. 2d, at 410.
Those findings are consistent with scholarly comment on the
issue arguing that local decisions tailored to local circumstances
are more appropriate than a mandate from Con-
dren does not suffice to support a blanket ban if the protection
can be accomplished by a less restrictive alternative");
Reno v.
American Civil Liberties Union, 521 U. S. 844, 875 (1997)
("[T]he governmental interest in protecting children from harmful
materials ... does not justify an unnecessarily broad suppression
of speech addressed to adults").
224
224 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
STEVENS, J., dissenting
gress.3 The plurality does not reject any of those findings.
Instead, "[a]ssuming that such erroneous blocking presents
constitutional difficulties," it relies on the Solicitor General's
assurance that the statute permits individual librarians to disable
filtering mechanisms whenever a patron so requests.
Ante, at
209. In my judgment, that assurance does not cure the
constitutional infirmity in the statute.
Until a blocked site or group of sites is unblocked, a patron is
unlikely to know what is being hidden and therefore whether there
is any point in asking for the filter to be removed. It is as
though the statute required a significant part of every library's
reading materials to be kept in unmarked, locked rooms or cabinets,
which could be opened only in response to specific requests. Some
curious readers would in time obtain access to the hidden
materials, but
3 "Indeed, federal or state mandates in this area are
unnecessary and unwise. Locally designed solutions are likely to
best meet local circumstances. Local decision makers and library
boards, responding to local concerns and the prevalence of the
problem in their own libraries, should decide if minors' Internet
access requires filters. They are the persons in the best position
to judge local community standards for what is and is not obscene,
as required by the
Miller [v.
California, 413 U. S. 15 (1973)] test.
Indeed, one nationwide solution is not needed, as the problems are
local and, to some extent, uniquely so. Libraries in rural
communities, for instance, have reported much less of a problem
than libraries in urban areas. A library in a rural community with
only one or two computers with Internet access may find that even
the limited filtering advocated here provides little or no
additional benefit. Further, by allowing the nation's public
libraries to develop their own approaches, they may be able to
develop a better understanding of what methods work well and what
methods add little or nothing, or are even counter-productive.
Imposing a mandatory nationwide solution may well impede developing
truly effective approaches that do not violate the First Amendment.
The federal and state governments can best assist this effort by
providing libraries with sufficient funding to experiment with a
variety of constitutionally permissible approaches." Laughlin, Sex,
Lies, and Library Cards: The First Amendment Implications of the
Use of Software Filters to Control Access to Internet Pornography
in Public Libraries, 51 Drake L. Rev. 213, 279 (2003).
225
many would not. Inevitably, the interest of the authors of those
works in reaching the widest possible audience would be abridged.
Moreover, because the procedures that different libraries are
likely to adopt to respond to unblocking requests will no doubt
vary, it is impossible to measure the aggregate effect of the
statute on patrons' access to blocked sites. Unless we assume that
the statute is a mere symbolic gesture, we must conclude that it
will create a significant prior restraint on adult access to
protected speech. A law that prohibits reading without official
consent, like a law that prohibits speaking without consent,
"constitutes a dramatic departure from our national heritage and
constitutional tradition."
Watchtower Bible &
Tract
Soc. of N.
Y., Inc. v.
Village of Stratton,
536 U. S. 150,
166 (2002).
II
The plurality incorrectly argues that the statute does not
impose "an unconstitutional condition on public libraries."
Ante, at 214. On the contrary, it impermissibly conditions
the receipt of Government funding on the restriction of significant
First Amendment rights.
The plurality explains the "worthy missions" of the public
library in facilitating "learning and cultural enrichment."
Ante, at 203. It then asserts that in order to fulfill these
missions, "libraries must have broad discretion to decide what
material to provide to their patrons."
Ante, at 204. Thus
the selection decision is the province of the librarians, a
province into which we have hesitated to enter:
"A library's need to exercise judgment in making collection
decisions depends on its traditional role in identifying suitable
and worthwhile material; it is no less entitled to play that role
when it collects material from the Internet than when it collects
material from any other source. Most libraries already exclude
pornography from their print collections because they deem it
inappropriate for inclusion. We do not subject these deci-
226
226 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
STEVENS, J., dissenting
sions to heightened scrutiny; it would make little sense to
treat libraries' judgments to block online pornography any
differently, when these judgments are made for just the same
reason." Ante, at 208.
As the plurality recognizes, we have always assumed that
libraries have discretion when making decisions regarding what to
include in, and exclude from, their collections. That discretion is
comparable to the" 'business of a university ... to determine for
itself on academic grounds who may teach, what may be taught, how
it shall be taught, and who may be admitted to study.'"
Sweezy v.
New Hampshire, 354 U. S. 234, 263 (1957)
(Frankfurter, J., concurring in result) (citation omitted).4 As the
District Court found, one of the central purposes of a library is
to provide information for educational purposes: "'Books and other
library resources should be provided for the interest, information,
and enlightenment of all people of the community the library
serves.'" 201 F. Supp. 2d, at 420 (quoting the American Library
Association's Library Bill of Rights). Given our Nation's deep
commitment "to safeguarding academic freedom" and to the "robust
exchange of ideas,"
Keyishian v.
Board of Regents of
Univ. of State of N.
Y., 385 U. S. 589, 603
(1967), a library's exercise of judgment with respect to its
collection is entitled to First Amendment protection.
A federal statute penalizing a library for failing to install
filtering software on every one of its Internet-accessible
computers would unquestionably violate that Amendment. Cf.
Reno v.
American Civil Liberties Union, 521 U. S. 844 (1997). I
think it equally clear that the First Amendment protects libraries
from being denied funds for refusing to
4 See also J. Boyer, Academic Freedom and the Modern University:
The Experience of the University of Chicago 95 (2002) ("The right
to speak, to write, and to teach freely is a precious right, one
that the American research universities over the course of the
twentieth century have slowly but surely made central to the very
identity of the university in the modern world").
227
comply with an identical rule. An abridgment of speech by means
of a threatened denial of benefits can be just as pernicious as an
abridgment by means of a threatened penalty.
Our cases holding that government employment may not be
conditioned on the surrender of rights protected by the First
Amendment illustrate the point. It has long been settled that
"Congress could not 'enact a regulation providing that no
Republican, Jew or Negro shall be appointed to federal office, or
that no federal employee shall attend Mass or take any active part
in missionary work.'"
Wieman v.
Updegraff, 344 U. S. 183, 191-192
(1952). Neither discharges, as in
Elrod v.
Burns,
427 U. S. 347,
350-351 (1976), nor refusals to hire or promote, as in
Rutan
v.
Republican Party of Ill., 497 U. S. 62, 66-67
(1990), are immune from First Amendment scrutiny. Our precedents
firmly rejecting "Justice Holmes' famous dictum, that a policeman
'may have a constitutional right to talk politics, but he has no
constitutional right to be a policeman,'"
Board of Comm'rs,
Wabaunsee Cty. v.
Umbehr, 518 U. S. 668, 674
(1996), draw no distinction between the penalty of discharge from
one's job and the withholding of the benefit of a new job. The
abridgment of First Amendment rights is equally unconstitutional in
either context. See
Sherbert v.
Verner, 374 U. S. 398, 404 (1963)
("Governmental imposition of such a choice puts the same kind of
burden upon the free exercise of religion as would a fine .... It
is too late in the day to doubt that the liberties of religion and
expression may be infringed by the denial of or placing of
conditions upon a benefit or privilege").
The issue in this case does not involve governmental attempts to
control the speech or views of its employees. It involves the use
of its treasury to impose controls on an important medium of
expression. In an analogous situation, we specifically held that
when "the 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 distorting restriction must be struck down
under the First
228
228 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
STEVENS, J., dissenting
Amendment.
Legal Services Corporation v.
Velazquez,
531 U. S. 533, 543 (2001).5 The question, then, is whether
requiring the filtering software on all Internet-accessible
computers distorts that medium. As I have discussed above, the
over- and underblocking of the software does just that.
The plurality argues that the controversial decision in
Rust v.
Sullivan, 500 U. S. 173 (1991),
requires rejection of appellees' unconstitutional conditions claim.
See
ante, at 211-212. But, as subsequent cases have
explained,
Rust only involved, and only applies to,
instances of governmental speech-that is, situations in which the
government seeks to communicate a specific message.6 The discounts
under the E-rate program and funding under the Library Services and
Technology Act (LSTA) program involved in this case do not
subsidize any message favored by the Government. As Congress made
clear, these programs were designed "[t]o help public libraries
provide their patrons with Internet access," which in turn
"provide[s] patrons with a vast amount of valuable information."
Ante, at 199, 200. These programs thus are designed to
provide access, particularly for individuals in low-income
communities, see 47 U. S. C. § 254(h)(1), to a vast amount and wide
variety of private
5 Contrary to the plurality's narrow reading,
Velazquez
is not limited to instances in which the recipient of Government
funds might be "pit[ted]" against the Government. See
ante,
at 213. To the contrary, we assessed the issue in
Velazquez
by turning to, and harmonizing it with, our prior unconstitutional
condition cases in the First Amendment context. See 531 U. S., at
543-544.
6 See
id., at 541 (distinguishing
Rust on the
ground that "the counseling activities of the doctors ... amounted
to governmental speech");
Board of Regents of Univ. of Wis.
System v.
Southworth, 529 U. S. 217,229 (2000)
(unlike
Rust, "the issue of the government's right ... to
use its own funds to advance a particular message" was not
presented);
Rosenberger v.
Rector and Visitors of Univ.
of Va., 515 U. S.
819, 834 (1995)
(Rust is inapplicable 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").
229
speech. They are not designed to foster or transmit any
particular governmental message.
Even if we were to construe the passage of CIPA as modifying the
E-rate and LSTA programs such that they now convey a governmental
message that no "'visual depictions' that are 'obscene,' 'child
pornography,' or in the case of minors, 'harmful to minors,'" 201
F. Supp. 2d, at 407, should be expressed or viewed, the use of
filtering software does not promote that message. As described
above, all filtering software erroneously blocks access to a
substantial number of Web sites that contain constitutionally
protected speech on a wide variety of topics. See id., at 446-447
(describing erroneous blocking of speech on churches and religious
groups, on politics and government, on health issues, on education
and careers, on sports, and on travel). Moreover, there are
"frequent instances of underblocking," id., at 448, that is,
instances in which filtering software did not prevent access to Web
sites with depictions that fall within what CIPA seeks to block
access to. In short, the message conveyed by the use of filtering
software is not that all speech except that which is prohibited by
CIPA is supported by the Government, but rather that all speech
that gets through the software is supported by the Government. And
the items that get through the software include some visual
depictions that are obscene, some that are child pornography, and
some that are harmful to minors, while at the same time the
software blocks an enormous amount of speech that is not sexually
explicit and certainly does not meet CIPA's definitions of
prohibited content. As such, since the message conveyed is far from
the message the Government purports to promote-indeed, the material
permitted past the filtering software does not seem to have any
coherent message-Rust is inapposite.
The plurality's reliance on
National Endowment for Arts
v.
Finley, 524
U. S. 569 (1998), is also misplaced. That case involved a
challenge to a statute setting forth the criteria
230
230 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
STEVENS, J., dissenting
used by a federal panel of experts administering a federal grant
program. Unlike this case, the Federal Government was not seeking
to impose restrictions on the administration of a nonfederal
program. As explained
supra, at 228,
Rust would
appear to permit restrictions on a federal program such as the
National Endowment for the Arts (NEA) arts grant program at issue
in
Finley.
Further, like a library, the NEA experts in
Finley had a
great deal of discretion to make judgments as to what projects to
fund. But unlike this case,
Finley did not involve a
challenge by the NEA to a governmental restriction on its ability
to award grants. Instead, the respondents were performance artists
who had applied for NEA grants but were denied funding. See 524 U.
S., at 577. If this were a case in which library patrons had
challenged a library's decision to install and use filtering
software, it would be in the same posture as
Finley. Because
it is not,
Finley does not control this case.
Also unlike
Finley, the Government does not merely seek
to control a library's discretion with respect to computers
purchased with Government funds or those computers with
Government-discounted Internet access. CIPA requires libraries to
install filtering software on
every computer with Internet
access if the library receives
any discount from the E-rate
program or
any funds from the LSTA program.7 See 20 U. S. C.
§ 9134(f)(1); 47 u. S. C. §§ 254(h)(6)(B) and (C). If a library has
10 computers paid for by nonfederal funds and has Internet service
for those computers also paid for by nonfederal funds, the library
may choose not to put filtering software on any of those 10
computers. Or a library may decide to put filtering software on the
5 computers in its
7 Thus, appellees are not merely challenging a "refusal to fund
protected activity, without more," as in
Harris v.
McRae, 448 U.
S. 297, 317, n. 19 (1980), or a "decision not to subsidize the
exercise of a fundamental right," as in
Regan v.
Taxation
With Representation of Wash., 461 U. S. 540, 549
(1983). They are challenging a restriction that applies to property
that they acquired without federal assistance.
231
children's section. Or a library in an elementary school might
choose to put filters on every single one of its 10 computers. But
under this statute, if a library attempts to provide Internet
service for even
one computer through an Erate discount,
that library must put filtering software on
all of its
computers with Internet access, not just the one computer with
E-rate discount.
This Court should not permit federal funds to be used to enforce
this kind of broad restriction of First Amendment rights,
particularly when such a restriction is unnecessary to accomplish
Congress' stated goal. See
supra, at 223 (discussing less
restrictive alternatives). The abridgment of speech is equally
obnoxious whether a rule like this one is enforced by a threat of
penalties or by a threat to withhold a benefit.
I would affirm the judgment of the District Court.
JUSTICE SOUTER, with whom JUSTICE GINSBURG joins,
dissenting.
I agree in the main with JUSTICE STEVENS,
ante, at 225230
and this page (dissenting opinion), that the blocking requirements
of the Children's Internet Protection Act, 20 U. S. C. §§
9134(f)(1)(A)(i) and (B)(i); 47 u. S. C. §§ 254(h) (6)(B)(i) and
(C)(i), impose an unconstitutional condition on the Government's
subsidies to local libraries for providing access to the Internet.
I also agree with the library appellees on a further reason to hold
the blocking rule invalid in the exercise of the spending power
under Article I, § 8: the rule mandates action by recipient
libraries that would violate the First Amendment's guarantee of
free speech if the libraries took that action entirely on their
own. I respectfully dissent on this further ground.
I
Like the other Members of the Court, I have no doubt about the
legitimacy of governmental efforts to put a barrier between child
patrons of public libraries and the raw offer-
232
232 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
SOUTER, J., dissenting
ings on the Internet otherwise available to them there, and if
the only First Amendment interests raised here were those of
children, I would uphold application of the Act. We have said that
the governmental interest in "shielding" children from exposure to
indecent material is "compelling,"
Reno v.
American Civil
Liberties Union, 521 U. S. 844, 869870
(1997), and I do not think that the awkwardness a child might feel
on asking for an unblocked terminal is any such burden as to affect
constitutionality.
Nor would I dissent if I agreed with the majority of my
colleagues, see
ante, at 208-209 (plurality opinion);
ante, at 219 (BREYER, J., concurring in judgment);
ante, at 214 (KENNEDY, J., concurring in judgment), that an
adult library patron could, consistently with the Act, obtain an
unblocked terminal simply for the asking. I realize the Solicitor
General represented this to be the Government's policy, see Tr. of
Oral Arg. 4-5, 11, and if that policy were communicated to every
affected library as unequivocally as it was stated to us at
argument, local librarians might be able to indulge the unblocking
requests of adult patrons to the point of taking the curse off the
statute for all practical purposes. But the Federal Communications
Commission, in its order implementing the Act, pointedly declined
to set a federal policy on when unblocking by local libraries would
be appropriate under the statute. See
In re Federal-State Joint
Board on Universal Service: Children's Internet Protection Act,
16 FCC Rcd. 8182, 8204, ~ 53 (2001) ("Federally-imposed rules
directing school and library staff when to disable technology
protection measures would likely be overbroad and imprecise,
potentially chilling speech, or otherwise confusing schools and
libraries about the requirements of the statute. We leave such
determinations to the local communities, whom we believe to be most
knowledgeable about the varying circumstances of schools or
libraries within those communities"). Moreover, the District Court
expressly found that "unblocking may take days, and may be
unavailable, espe-
233
cially in branch libraries, which are often less well staffed
than main libraries." 201 F. Supp. 2d 401, 411 (ED Pa. 2002); see
id., at 487-488 (same).
In any event, we are here to review a statute, and the
unblocking provisions simply cannot be construed, even for
constitutional avoidance purposes, to say that a library must
unblock upon adult request, no conditions imposed and no questions
asked. First, the statute says only that a library "may" unblock,
not that it must. 20 U. S. C. § 9134(f)(3); see 47 U. S. C. §
254(h)(6)(D). In addition, it allows unblocking only for "bona fide
research or other lawful purposes," 20 U. S. C. § 9134(f)(3); see
47 U. S. C. § 254(h)(6)(D), and if the "lawful purposes" criterion
means anything that would not subsume and render the "bona fide
research" criterion superfluous, it must impose some limit on
eligibility for unblocking, see,
e. g.,
Connecticut Nat.
Bank v.
Germain, 503 U. S. 249, 253 (1992)
("[C]ourts should disfavor interpretations of statutes that render
language superfluous"). There is therefore necessarily some
restriction, which is surely made more onerous by the uncertainty
of its terms and the generosity of its discretion to library staffs
in deciding who gets complete Internet access and who does not. Cf.
Forsyth County v.
Nationalist Movement, 505 U. S. 123, 130 (1992)
(noting that the First Amendment bars licensing schemes that grant
unduly broad discretion to licensing officials, given the potential
for such discretion to "becom[e] a means of suppressing a
particular point of view" (internal quotation marks omitted)).l
We therefore have to take the statute on the understanding that
adults will be denied access to a substantial amount of nonobscene
material harmful to children but lawful for
1 If the Solicitor General's representation turns out to be
honored in the breach by local libraries, it goes without saying
that our decision today would not foreclose an as-applied
challenge. See also
ante, at 219-220 (BREYER, J., concurring
in judgment);
ante, at 215 (KENNEDY, J., concurring in
judgment).
234
234 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
SOUTER, J., dissenting
adult examination, and a substantial quantity of text and
pictures harmful to no one. As the plurality concedes, see
ante, at 208-209, this is the inevitable consequence of the
indiscriminate behavior of current filtering mechanisms, which
screen out material to an extent known only by the manufacturers of
the blocking software, see 201 F. Supp. 2d, at 408 ("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").
We likewise have to examine the statute on the understanding
that the restrictions on adult Internet access have no
justification in the object of protecting children. Children could
be restricted to blocked terminals, leaving other unblocked
terminals in areas restricted to adults and screened from casual
glances. And, of course, the statute could simply have provided for
unblocking at adult request, with no questions asked. The statute
could, in other words, have protected children without blocking
access for adults or subjecting adults to anything more than
minimal inconvenience, just the way (the record shows) many
librarians had been dealing with obscenity and indecency before
imposition of the federal conditions. See id., at 422-427. Instead,
the Government's funding conditions engage in overkill to a degree
illustrated by their refusal to trust even a library's staff with
an unblocked terminal, one to which the adult public itself has no
access. See id., at 413 (quoting 16 FCC Rcd., at 8196, ~ 30).
The question for me, then, is whether a local library could
itself constitutionally impose these restrictions on the content
otherwise available to an adult patron through an Internet
connection, at a library terminal provided for public use. The
answer is no. A library that chose to block an adult's Internet
access to material harmful to children (and
235
whatever else the undiscriminating filter might interrupt) would
be imposing a content-based restriction on communication of
material in the library's control that an adult could otherwise
lawfully see. This would simply be censorship. True, the censorship
would not necessarily extend to every adult, for an intending
Internet user might convince a librarian that he was a true
researcher or had a "lawful purpose" to obtain everything the
library's terminal could provide. But as to those who did not
qualify for discretionary unblocking, the censorship would be
complete and, like all censorship by an agency of the Government,
presumptively invalid owing to strict scrutiny in implementing the
Free Speech Clause of the First Amendment. "The policy of the First
Amendment favors dissemination of information and opinion, and the
guarantees of freedom of speech and press were not designed to
prevent the censorship of the press merely, but any action of the
government by means of which it might prevent such free and general
discussion of public matters as seems absolutely essential."
Bigelow v.
Virginia, 421 U. S. 809, 829 (1975)
(internal quotation marks and brackets omitted).
II
The Court's plurality does not treat blocking affecting adults
as censorship, but chooses to describe a library's act in filtering
content as simply an instance of the kind of selection from
available material that every library (save, perhaps, the Library
of Congress) must perform.
Ante, at 208 ("A library's need
to exercise judgment in making collection decisions depends on its
traditional role in identifying suitable and worthwhile material;
it is no less entitled to play that role when it collects material
from the Internet than when it collects material from any other
source"). But this position does not hold Up.2
2 Among other things, the plurality's reasoning ignores the
widespread utilization of interlibrary loan systems. See 201 F.
Supp. 2d 401, 421 (ED Pa. 2002). With interlibrary loan, virtually
any book, say, is effectively
236
236 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
SOUTER, J., dissenting
A
Public libraries are indeed selective in what they acquire to
place in their stacks, as they must be. There is only so much money
and so much shelf space, and the necessity to choose some material
and reject the rest justifies the effort to be selective with an
eye to demand, quality, and the object of maintaining the library
as a place of civilized enquiry by widely different sorts of
people. Selectivity is thus necessary and complex, and these two
characteristics explain why review of a library's selection
decisions must be limited: the decisions are made all the time, and
only in extreme cases could one expect particular choices to reveal
impermissible reasons (reasons even the plurality would consider to
be illegitimate), like excluding books because their authors are
Democrats or their critiques of organized Christianity are
unsympathetic. See
Board of Ed., Island Trees Union Free School
Dist. No. 26 v.
Pico, 457 U. S. 853, 870-871
(1982) (plurality opinion). Review for rational basis is probably
the most that any court could conduct, owing to the myriad
particular selections that might be attacked by someone, and the
difficulty of untangling the play of factors behind a particular
decision.
At every significant point, however, the Internet blocking here
defies comparison to the process of acquisition. Whereas
traditional scarcity of money and space require a library to make
choices about what to acquire, and the choice to be made is whether
or not to spend the money to acquire something, blocking is the
subject of a choice made after the money for Internet access has
been spent or committed.
made available to a library's patrons. If, therefore, a
librarian refused to get a book from interlibrary loan for an adult
patron on the ground that the patron's "purpose" in seeking the
book was not acceptable, the librarian could find no justification
in the fact that libraries have traditionally "collect[ed] only
those materials deemed to have 'requisite and appropriate quality.'
"
Ante, at 204. In any event, in the ensuing analysis, I
assume for the sake of argument that we are in a world without
interlibrary loan.
237
Since it makes no difference to the cost of Internet access
whether an adult calls up material harmful for children or the
Articles of Confederation, blocking (on facts like these) is not
necessitated by scarcity of either money or space.3 In the instance
of the Internet, what the library acquires is electronic access,
and the choice to block is a choice to limit access that has
already been acquired. Thus, deciding against buying a book means
there is no book (unless a loan can be obtained), but blocking the
Internet is merely blocking access purchased in its entirety and
subject to unblocking if the librarian agrees. The proper analogy
therefore is not to passing up a book that might have been bought;
it is either to buying a book and then keeping it from adults
lacking an acceptable "purpose," or to buying an encyclopedia and
then cutting out pages with anything thought to be unsuitable for
all adults.
B
The plurality claims to find support for its conclusions in the
"traditional missio[nJ" of the public library.
Ante, at 205;
see also
ante, at 219 (BREYER, J., concurring in judgment)
(considering "traditional library practices"). The plurality thus
argues, in effect, that the traditional responsibility of public
libraries has called for denying adult access to certain books, or
bowdlerizing the content of what the libraries let adults see. But,
in fact, the plurality's conception of a public library's mission
has been rejected by the libraries themselves. And no library that
chose to block adult access in the way mandated by the Act could
claim that the history of public library practice in this country
furnished an implicit
3 Of course, a library that allowed its patrons to use computers
for any purposes might feel the need to purchase more computers to
satisfy what would presumably be greater demand, see Brief for
Appellants 23, but the answer to that problem would be to limit the
number of unblocked terminals or the hours in which they could be
used. In any event, the rationale for blocking has no reference
whatever to scarcity.
238
238 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
SOUTER, J., dissenting
gloss on First Amendment standards, allowing for blocking out
anything unsuitable for adults.
Institutional history of public libraries in America discloses
an evolution toward a general rule, now firmly rooted, that any
adult entitled to use the library has access to any of its
holdings.4 To be sure, this freedom of choice was apparently not
within the inspiration for the mid-19th-century development of
public libraries, see J. Shera, Foundations of the Public Library:
The Origins of the Public Library Movement in New England,
1629-1855, p. 107 (1949), and in the infancy of their development a
"[m]oral censorship" of reading material was assumed, E. Geller,
Forbidden Books in American Public Libraries, 1876-1939, p. 12
(1984). But even in the early 20th century, the legitimacy of the
librarian's authority as moral arbiter was coming into question.
See,
e. g., Belden, President's Address: Looking Forward, 20
Bull. Am. Libr. Assn. 273, 274 (1926) ("The true public library
must stand for the intellectual freedom of access to the printed
word"). And the practices of European fascism fueled the reaction
against library censorship. See M. Harris, History of Libraries in
the Western World 248 (4th ed. 1995). The upshot was a growing
understanding that a librarian's job was to guarantee that "all
people had access to all ideas," Geller,
supra, at 156, and
by the end of the 1930s, librarians' "basic position in opposition
to censorship [had] emerged," Krug & Harvey, ALA and
Intellectual Freedom:
A Historical Overview, in Intellectual Freedom Manual, pp. xi,
xv (American Library Association 1974) (hereinafter Intellectual
Freedom Manual); see also Darling, Access, Intellectual Freedom and
Libraries, 27 Library Trends 315316 (1979).
4 That is, libraries do not refuse materials to adult patrons on
account of their content. Of course, libraries commonly limit
access on contentneutral grounds to, say, rare or especially
valuable materials. Such practices raise no First Amendment
concerns, because they have nothing to do with suppressing
ideas.
239
By the time McCarthyism began its assaults, appellee American
Library Association (ALA) had developed a Library Bill of Rights
against censorship, Library Bill of Rights, in Intellectual Freedom
Manual, pt. 1, p. 7, and an Intellectual Freedom Committee to
maintain the position that beyond enforcing existing laws against
obscenity, "there is no place in our society for extra-legal
efforts to coerce the taste of others, to confine adults to the
reading matter deemed suitable for adolescents, or to inhibit the
efforts of writers to achieve artistic expression." Freedom to
Read, in id., pt. 2, at 8; see also Krug & Harvey, in id., at
xv. So far as I have been able to tell, this statement expressed
the prevailing ideal in public library administration after World
War II, and it seems fair to say as a general rule that libraries
by then had ceased to deny requesting adults access to any
materials in their collections. The adult might, indeed, have had
to make a specific request, for the literature and published
surveys from the period show a variety of restrictions on the
circulation of library holdings, including placement of materials
apart from open stacks, and availability only upon specific
request.5 But aside from the isolated suggestion, see,
e.
g., Born, Public Libraries and Intellectual Freedom, in id., pt. 3,
at 4, 9, I have not been able to find from this period any record
of a library barring access to materials in its collection on a
basis other than a reader's age. It seems to have been out of the
question for a library to refuse a book in its collection to a
requesting adult patron, or to presume to evaluate the basis for a
particular request.
This take on the postwar years is confirmed by evidence of the
dog that did not bark. During the second half of the
5 See,
e. g., M. Fiske, Book Selection and Censorship: A
Study of School and Public Libraries in California 69-73 (1959);
Moon, "Problem" Fiction, in Book Selection and Censorship in the
Sixties 56-58 (E. Moon ed. 1969); F. Jones, Defusing Censorship:
The Librarian's Guide to Handling Censorship Conflicts 92-99
(1983); see also The Censorship of Books 173-182 (W. Daniels ed.
1954).
240
240 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
SOUTER, J., dissenting
20th century, the ALA issued a series of policy statements,
since dubbed Interpretations of the Library Bill of Rights, see
id., pt. 1, at 13, commenting on library administration and
pointing to particular practices the ALA opposed. Thus, for
example, in response to pressure by the Sons of the American
Revolution on New Jersey libraries to place labels on materials
"advocat[ing] or favor[ing] communism," the ALA in 1957 adopted a
"Statement on Labeling," opposing it as "a censor's tool."
Id., pt. 1, at 18-19. Again, 10 years later, the ALA even
adopted a statement against any restriction on access to library
materials by minors. It acknowledged that age restrictions were
common across the Nation in "a variety of forms, including, among
others, restricted reading rooms for adult use only, library cards
limiting circulation of some materials to adults only, closed
collections for adult use only, and interlibrary loan for adult use
only."
Id., pt. 1, at 16. Nevertheless, the ALA opposed all
such limitations, saying that "only the parent ... may restrict his
childrenand only
his children-from access to library
materials and services."
Id., pt. 1, at 17.
And in 1973, the ALA adopted a policy opposing the practice
already mentioned, of keeping certain books off the open shelves,
available only on specific request. See id., pt. 1, at 42. The
statement conceded that" 'closed shelf,' 'locked case,' 'adults
only,' or 'restricted shelf' collections" were "common to many
libraries in the United States."
Id., pt. 1, at 43. The ALA
nonetheless came out against it, in these terms: "While the
limitation differs from direct censorship activities, such as
removal of library materials or refusal to purchase certain
publications, it nonetheless constitutes censorship, albeit a
subtle form."
Ibid.6
Amidst these and other ALA statements from the latter half of
the 20th century, however, one subject is missing.
6 For a complete listing of the ALA's Interpretations, see R.
Peck, Libraries, the First Amendment and Cyberspace: What You Need
to Know 148-175 (2000).
241
There is not a word about barring requesting adults from any
materials in a library's collection, or about limiting an adult's
access based on evaluation of his purposes in seeking materials. If
such a practice had survived into the latter half of the 20th
century, one would surely find a statement about it from the ALA,
which had become the nemesis of anything sounding like censorship
of library holdings, as shown by the history just sampled.7 The
silence bespeaks an American public library that gives any adult
patron any material at hand, and a history without support for the
plurality's reading of the First Amendment as tolerating a public
library's censorship of its collection against adult enquiry.
C
Thus, there is no preacquisition scarcity rationale to save
library Internet blocking from treatment as censorship, and no
support for it in the historical development of library practice.
To these two reasons to treat blocking differently from a decision
declining to buy a book, a third must be added. Quite simply, we
can smell a rat when a library blocks material already in its
control, just as we do when a library removes books from its
shelves for reasons having nothing to do with wear and tear,
obsolescence, or lack of demand. Content-based blocking and removal
tell us something that mere absence from the shelves does not.
I have already spoken about two features of acquisition
decisions that make them poor candidates for effective judicial
review. The first is their complexity, the number of legitimate
considerations that may go into them, not all pointing one way,
providing cover for any illegitimate reason that managed to sneak
in. A librarian should consider likely demand, scholarly or
esthetic quality, alternative purchases,
7 Thus, it is not surprising that, with the emergence of the
circumstances giving rise to this case, the ALA has adopted
statements opposing restrictions on access to adult patrons,
specific to electronic media like the Internet. See id., at
150-153, 176-179, 180-187.
242
242 UNITED STATES
v. AMERICAN LIBRARY ASSN., INC.
SOUTER, J., dissenting
relative cost, and so on. The second reason the judiciary must
be shy about reviewing acquisition decisions is the sheer volume of
them, and thus the number that might draw fire. Courts cannot
review the administration of every library with a constituent
disgruntled that the library fails to buy exactly what he wants to
read.
After a library has acquired material in the first place,
however, the variety of possible reasons that might legitimately
support an initial rejection are no longer in play. Removal of
books or selective blocking by controversial subject matter is not
a function of limited resources and less likely than a selection
decision to reflect an assessment of esthetic or scholarly merit.
Removal (and blocking) decisions being so often obviously
correlated with content, they tend to show up for just what they
are, and because such decisions tend to be few, courts can examine
them without facing a deluge. The difference between choices to
keep out and choices to throw out is thus enormous, a perception
that underlay the good sense of the plurality's conclusion in
Board of Ed., Island Trees Union Free School Dist. No. 26 v.
Pico, 457 U.
S. 853 (1982), that removing classics from a school library in
response to pressure from parents and school board members violates
the Speech Clause.
III
There is no good reason, then, to treat blocking of adult
enquiry as anything different from the censorship it presumptively
is. For this reason, I would hold in accordance with conventional
strict scrutiny that a library's practice of blocking would violate
an adult patron's First and Fourteenth Amendment right to be free
of Internet censorship, when unjustified (as here) by any
legitimate interest in screening children from harmful material. 8
On that ground,
8 I assume, although there is no occasion here to decide, that
the originators of the material blocked by the Internet filters
could object to the wall between them and any adult audience they
might attract, although they
243
the Act's blocking requirement in its current breadth calls for
unconstitutional action by a library recipient, and is itself
unconstitutional.
would be unlikely plaintiffs, given that their private audience
would be unaffected by the library's action, and many of them might
have no more idea that a library is blocking their work than the
library does. It is for this reason that I rely on the First and
Fourteenth Amendment rights of adult library patrons, who would
experience the more acute injury by being denied a look at anything
the software identified as apt to harm a child (and whatever else
got blocked along with it). In practical terms, if libraries and
the National Government are going to be kept from engaging in
unjustifiable adult censorship, there is no alternative to
recognizing a viewer's or reader's right to be free of
paternalistic censorship as at least an adjunct of the core right
of the speaker. The plurality in
Board of Ed., Island Trees
Union Free School Dist. No. 26 v.
Pico, 457 U. S. 853 (1982), saw
this and recognized the right of students using a school library to
object to the removal of disfavored books from the shelves, id., at
865-868 (opinion of Brennan, J.). By the same token, we should
recognize an analogous right on the part of a library's adult
Internet users, who may be among the 10% of American Internet users
whose access comes solely through library terminals, see 201 F.
Supp. 2d, at 422. There should therefore be no question that
censorship by blocking produces real injury sufficient to support a
suit for redress by patrons whose access is denied.
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