sites having to do with education and careers. The filtering
programs blocked two sites that provide information on home
schooling. "HomEduStation the Internet Source for Home
Education," http://www.perigee.net/~mcmullen/homedustation/, was
categorized by Cyber Patrol as "Adult/Sexually Explicit."
Smartfilter blocked "Apricot: A Web site made by and for home
schoolers," http://apricotpie.com, as "Sex." The programs also
miscategorized several career-related sites. "Social Work
Search," http://www.socialworksearch.com/, is a directory for
social workers that Cyber Patrol placed in its "Adult/Sexually
Explicit" category. The "Gay and Lesbian Chamber of Southern
Nevada," http://www.lambdalv.com, "a forum for the business
community to develop relationships within the Las Vegas lesbian,
gay, transsexual, and bisexual community" was blocked by N2H2 as
"Adults Only, Pornography." A site for aspiring dentists,
http://www.vvm.com/~bond/home.htm, was blocked by Cyber Patrol in
its "Adult/Sexually Explicit" category.
The filtering programs erroneously blocked many travel Web
sites, including: the Web site for the Allen Farmhouse Bed &
Breakfast of Alleghany County, North Carolina, http://planet-
nc.com/Beth/index.html, which Websense blocked as "Adult
Content"; Odysseus Gay Travel, a travel company serving gay men,
http://www.odyusa.com, which N2H2 categorized as "Adults Only,
Pornography"; Southern Alberta Fly Fishing Outfitters,
http://albertaflyfish.com, which N2H2 blocked as "Pornography";
and "Nature and Culture Conscious Travel," a tour operator in
Namibia, http://www.trans-namibia-tours.com, which was
categorized as "Pornography" by N2H2.
The filtering programs also miscategorized a large number of
sports Web sites. These included: a site devoted to Willie
O'Ree, the first African-American player in the National Hockey
League, http://www.missioncreep.com/mw/oree.html, which Websense
blocked under its "Nudity" category; the home page of the Sydney
University Australian Football Club, http://www.tek.com.au/suafc,
which N2H2 blocked as "Adults Only, Pornography," Smartfilter
blocked as "Sex," Cyber Patrol blocked as "Adult/Sexually
Explicit" and Websense blocked as "Sex"; and a fan's page devoted
to the Toronto Maple Leafs hockey team,
http://www.torontomapleleafs.atmypage.com, which N2H2 blocked
under the "Pornography" category.
7. Conclusion: The Effectiveness of Filtering
Programs
Public libraries have adopted a variety of means of dealing
with problems created by the provision of Internet access. The
large amount of sexually explicit speech that is freely available
on the Internet has, to varying degrees, led to patron complaints
about such matters as unsought exposure to offensive material,
incidents of staff and patron harassment by individuals viewing
sexually explicit content on the Internet, and the use of library
computers to access illegal material, such as child pornography.
In some libraries, youthful library patrons have persistently
attempted to use the Internet to access hardcore pornography.
Those public libraries that have responded to these problems
by using software filters have found such filters to provide a
relatively effective means of preventing patrons from accessing
sexually explicit material on the Internet. Nonetheless, out of
the entire universe of speech on the Internet falling within the
filtering products' category definitions, the filters will
incorrectly fail to block a substantial amount of speech. Thus,
software filters have not completely eliminated the problems that
public libraries have sought to address by using the filters, as
evidenced by frequent instances of underblocking. Nor is there
any quantitative evidence of the relative effectiveness of
filters and the alternatives to filters that are also intended to
prevent patrons from accessing illegal content on the Internet.
Even more importantly (for this case), although software
filters provide a relatively cheap and effective, albeit
imperfect, means for public libraries to prevent patrons from
accessing speech that falls within the filters' category
definitions, we find that commercially available filtering
programs erroneously block a huge amount of speech that is
protected by the First Amendment. Any currently available
filtering product that is reasonably effective in preventing
users from accessing content within the filter's category
definitions will necessarily block countless thousands of Web
pages, the content of which does not match the filtering
company's category definitions, much less the legal definitions
of obscenity, child pornography, or harmful to minors. Even
Finnell, an expert witness for the defendants, found that between
6% and 15% of the blocked Web sites in the public libraries that
he analyzed did not contain content that meets even the filtering
products' own definitions of sexually explicit content, let alone
CIPA's definitions.
This phenomenon occurs for a number of reasons explicated in
the more detailed findings of fact supra. These include
limitations on filtering companies' ability to: (1) harvest Web
pages for review; (2) review and categorize the Web pages that
they have harvested; and (3) engage in regular re-review of the
Web pages that they have previously reviewed. The primary
limitations on filtering companies' ability to harvest Web pages
for review is that a substantial majority of pages on the Web are
not indexable using the spidering technology that Web search
engines use, and that together, search engines have indexed only
around half of the Web pages that are theoretically indexable.
The fast rate of growth in the number of Web pages also limits
filtering companies' ability to harvest pages for review. These
shortcomings necessarily result in significant underblocking.
Several limitations on filtering companies' ability to
review and categorize the Web pages that they have harvested also
contribute to over- and underblocking. First, automated review
processes, even those based on "artificial intelligence," are
unable with any consistency to distinguish accurately material
that falls within a category definition from material that does
not. Moreover, human review of URLs is hampered by filtering
companies' limited staff sizes, and by human error or
misjudgment. In order to deal with the vast size of the Web and
its rapid rates of growth and change, filtering companies engage
in several practices that are necessary to reduce underblocking,
but inevitably result in overblocking. These include: (1)
blocking whole Web sites even when only a small minority of their
pages contain material that would fit under one of the filtering
company's categories (e.g., blocking the Salon.com site because
it contains a sex column); (2) blocking by IP address (because a
single IP address may contain many different Web sites and many
thousands of pages of heterogenous content); and (3) blocking
loophole sites such as translator sites and cache sites, which
archive Web pages that have been removed from the Web by their
original publisher.
Finally, filtering companies' failure to engage in regular
re-review of Web pages that they have already categorized (or
that they have determined do not fall into any category) results
in a substantial amount of over- and underblocking. For example,
Web publishers change the contents of Web pages frequently. The
problem also arises when a Web site goes out of existence and its
domain name or IP address is reassigned to a new Web site
publisher. In that case, a filtering company's previous
categorization of the IP address or domain name would likely be
incorrect, potentially resulting in the over- or underblocking of
many thousands of pages.
The inaccuracies that result from these limitations of
filtering technology are quite substantial. At least tens of
thousands of pages of the indexable Web are overblocked by each
of the filtering programs evaluated by experts in this case, even
when considered against the filtering companies' own category
definitions. Many erroneously blocked pages contain content that
is completely innocuous for both adults and minors, and that no
rational person could conclude matches the filtering companies'
category definitions, such as "pornography" or "sex."
The number of overblocked sites is of course much higher
with respect to the definitions of obscenity and child
pornography that CIPA employs for adults, since the filtering
products' category definitions, such as "sex" and "nudity,"
encompass vast amounts of Web pages that are neither child
pornography nor obscene. Thus, the number of pages of
constitutionally protected speech blocked by filtering products
far exceeds the many thousands of pages that are overblocked by
reference to the filtering products' category definitions.
No presently conceivable technology can make the judgments
necessary to determine whether a visual depiction fits the legal
definitions of obscenity, child pornography, or harmful to
minors. Given the state of the art in filtering and image
recognition technology, and the rapidly changing and expanding
nature of the Web, we find that filtering products' shortcomings
will not be solved through a technical solution in the
foreseeable future. In sum, filtering products are currently
unable to block only visual depictions that are obscene, child
pornography, or harmful to minors (or, only content matching a
filtering product's category definitions) while simultaneously
allowing access to all protected speech (or, all content not
matching the blocking product's category definitions). Any
software filter that is reasonably effective in blocking access
to Web pages that fall within its category definitions will
necessarily erroneously block a substantial number of Web pages
that do not fall within its category definitions.
2. Analytic Framework for the Opinion: The Centrality of Dole
and the Role of the Facial Challenge
Both the plaintiffs and the government agree that, because
this case involves a challenge to the constitutionality of the
conditions that Congress has set on state actors' receipt of
federal funds, the Supreme Court's decision in South Dakota v.
Dole, 483 U.S. 203 (1987), supplies the proper threshold analytic
framework. The constitutional source of Congress's spending
power is Article I, Sec. 8, cl. 1, which provides that "Congress
shall have Power . . . to pay the Debts and provide for the
common Defence and general Welfare of the United States." In
Dole, the Court upheld the constitutionality of a federal statute
requiring the withholding of federal highway funds from any state
with a drinking age below 21. Id. at 211-12. In sustaining the
provision's constitutionality, Dole articulated four general
constitutional limitations on Congress's exercise of the spending
power.
First, "the exercise of the spending power must be in
pursuit of 'the general welfare.'" Id. at 207. Second, any
conditions that Congress sets on states' receipt of federal funds
must be sufficiently clear to enable recipients "to exercise
their choice knowingly, cognizant of the consequences of their
participation." Id. (internal quotation marks and citation
omitted). Third, the conditions on the receipt of federal funds
must bear some relation to the purpose of the funding program.
Id. And finally, "other constitutional provisions may provide an
independent bar to the conditional grant of federal funds." Id.
at 208. In particular, the spending power "may not be used to
induce the States to engage in activities that would themselves
be unconstitutional. Thus, for example, a grant of federal funds
conditioned on invidiously discriminatory state action or the
infliction of cruel and unusual punishment would be an
illegitimate exercise of the Congress' broad spending power."
Id. at 210.
Plaintiffs do not contend that CIPA runs afoul of the first
three limitations. However, they do allege that CIPA is
unconstitutional under the fourth prong of Dole because it will
induce public libraries to violate the First Amendment.
Plaintiffs therefore submit that the First Amendment "provide[s]
an independent bar to the conditional grant of federal funds"
created by CIPA. Id. at 208. More specifically, they argue that
by conditioning public libraries' receipt of federal funds on the
use of software filters, CIPA will induce public libraries to
violate the First Amendment rights of Internet content-providers
to disseminate constitutionally protected speech to library
patrons via the Internet, and the correlative First Amendment
rights of public library patrons to receive constitutionally
protected speech on the Internet.
The government concedes that under the Dole framework, CIPA
is facially invalid if its conditions will induce public
libraries to violate the First Amendment. The government and the
plaintiffs disagree, however, on the meaning of Dole's
"inducement" requirement in the context of a First Amendment
facial challenge to the conditions that Congress places on state
actors' receipt of federal funds. The government contends that
because plaintiffs are bringing a facial challenge, they must
show that under no circumstances is it possible for a public
library to comply with CIPA's conditions without violating the
First Amendment. The plaintiffs respond that even if it is
possible for some public libraries to comply with CIPA without
violating the First Amendment, CIPA is facially invalid if it
"will result in the impermissible suppression of a substantial
amount of protected speech."
Because it was clear in Dole that the states could comply
with the challenged conditions that Congress attached to the
receipt of federal funds without violating the Constitution, the
Dole Court did not have occasion to explain fully what it means
for Congress to use the spending power to "induce [recipients] to
engage in activities that would themselves be unconstitutional."
Dole, 483 U.S. at 210; see id. at 211 ("Were South Dakota to
succumb to the blandishments offered by Congress and raise its
drinking age to 21, the State's action in so doing would not
violate the constitutional rights of anyone."). Although the
proposition that Congress may not pay state actors to violate
citizens' First Amendment rights is unexceptionable when stated
in the abstract, it is unclear what exactly a litigant must
establish to facially invalidate an exercise of Congress's
spending power on this ground.
In general, it is well-established that a court may sustain
a facial challenge to a statute only if the plaintiff
demonstrates that the statute admits of no constitutional
application. See United States v. Salerno, 481 U.S. 739, 745
(1987) ("A facial challenge to a legislative Act is, of course,
the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists
under which the Act would be valid."); see also Bowen v.
Kendrick, 487 U.S. 589, 612 (1988) ("It has not been the Court's
practice, in considering facial challenges to statutes of this
kind, to strike them down in anticipation that particular
applications may result in unconstitutional use of funds.")
(internal quotation marks and citation omitted).
First Amendment overbreadth doctrine creates a limited
exception to this rule by permitting facial invalidation of a
statute that burdens a substantial amount of protected speech,
even if the statute may be constitutionally applied in particular
circumstances. "The Constitution gives significant protection
from overbroad laws that chill speech within the First
Amendment's vast and privileged sphere. Under this principle, [a
law] is unconstitutional on its face if it prohibits a
substantial amount of protected expression." Ashcroft v. Free
Speech Coalition, 122 S. Ct. 1389, 1399 (2002); see also
Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). This more
liberal test of a statute's facial validity under the First
Amendment stems from the recognition that where a statute's reach
contemplates a number of both constitutional and unconstitutional
applications, the law's sanctions may deter individuals from
challenging the law's validity by engaging in constitutionally
protected speech that may nonetheless be proscribed by the law.
Without an overbreadth doctrine, "the contours of regulation
would have to be hammered out case by case and tested only by
those hardy enough to risk criminal prosecution to determine the
proper scope of regulation." Dombrowski v. Pfister, 380 U.S.
479, 487 (1965); see also Brockett v. Spokane Arcades, Inc., 472
U.S. 491, 503 (1985) ("[A]n individual whose own speech or
expressive conduct may validly be prohibited or sanctioned is
permitted to challenge a statute on its face because it also
threatens others not before the court those who desire to
engage in legally protected expression but who may refrain from
doing so rather than risk prosecution or undertake to have the
law declared partially invalid.").
Plaintiffs argue that the overbreadth doctrine is applicable
here, since CIPA "threatens to chill free speech because it
will censor a substantial amount of protected speech, because it
is vague, and because the law creates a prior restraint . . . ."
Unlike the statutes typically challenged as facially overbroad,
however, CIPA does not impose criminal penalties on those who
violate its conditions. Cf. Freedom of Speech Coalition, 122 S.
Ct. at 1398 ("With these severe penalties in force, few
legitimate movie producers or book publishers, or few other
speakers in any capacity, would risk distributing images in or
near the uncertain reach of this law."). Thus, the rationale for
permitting facial challenges to laws that may be constitutionally
applied in some instances is less compelling in cases such as
this, which involve challenges to Congress's exercise of the
spending power, than in challenges to criminal statutes.
Nonetheless, "even minor punishments can chill protected
speech," id., and absent the ability to challenge CIPA on its
face, public libraries that depend on federal funds may decide to
comply with CIPA's terms, thereby denying patrons access to
substantial amounts of constitutionally protected speech, rather
than refusing to comply with CIPA's terms and consequently losing
the benefits of federal funds. See 47 C.F.R. Sec. 54.520(e)(1) ("A
school or library that knowingly fails to ensure the use of
computers in accordance with the certifications required by this
section, must reimburse any funds and discounts received under
the federal universal support service support mechanism for
schools and libraries for the period in which there was
noncompliance."). Even in cases where the only penalty for
failure to comply with a statute is the withholding of federal
funds, the Court has sustained facial challenges to Congress's
exercise of the spending power. See, e.g., Legal Servs. Corp. v.
Velazquez, 531 U.S. 533 (2001) (declaring unconstitutional on its
face a federal statute restricting the ability of legal services
providers who receive federal funds to engage in activity
protected by the First Amendment).
The Court's unconstitutional conditions cases, such as
Velazquez, are not strictly controlling, since they do not
require a showing that recipients who comply with the conditions
attached to federal funding will, as state actors, violate
others' constitutional rights, as is the case under the fourth
prong of Dole. However, they are highly instructive.
The Supreme Court's pronouncements in the unconstitutional
conditions cases on what is necessary for a plaintiff to mount a
successful First Amendment facial challenge to an exercise of
Congress's spending power have not produced a seamless web. For
example, in Rust v. Sullivan, 500 U.S. 173 (1991), the Court
rejected a First Amendment facial challenge to federal
regulations prohibiting federally funded healthcare clinics from
providing counseling concerning the use of abortion as a method
of family planning, explaining that:
Petitioners are challenging the facial validity of the
regulations. Thus, we are concerned only with the
question whether, on their face, the regulations are
both authorized by the Act and can be construed in such
a manner that they can be applied to a set of
individuals without infringing upon constitutionally
protected rights. Petitioners face a heavy burden in
seeking to have the regulations invalidated as facially
unconstitutional. . . . The fact that the regulations
might operate unconstitutionally under some conceivable
set of circumstances is insufficient to render them
wholly invalid.
Id. at 183 (internal quotation marks, alterations, and citation
omitted). In contrast, NEA v. Finley, 524 U.S. 569 (1998), which
also involved a facial First Amendment challenge to an exercise
of Congress's spending power, articulated a somewhat more liberal
test of facial validity than Rust, explaining that "[t]o prevail,
respondents must demonstrate a substantial risk that application
of the provision will lead to the suppression of speech." Id. at
580.
Against this background, it is unclear to us whether, to
succeed in facially invalidating CIPA on the grounds that it will
"induce the States to engage in activities that would themselves
be unconstitutional," Dole, 483 U.S. at 210, plaintiffs must show
that it is impossible for public libraries to comply with CIPA's
conditions without violating the First Amendment, or rather
simply that CIPA will effectively restrict library patrons'
access to substantial amounts of constitutionally protected
speech, therefore causing many libraries to violate the First
Amendment. However, we need not resolve this issue. Rather, we
may assume without deciding, for purposes of this case, that a
facial challenge to CIPA requires plaintiffs to show that any
public library that complies with CIPA's conditions will
necessarily violate the First Amendment and, as explained in
detail below, we believe that CIPA's constitutionality fails even
under this more restrictive test of facial validity urged on us
by the government. Because of the inherent limitations in
filtering technology, public libraries can never comply with CIPA
without blocking access to a substantial amount of speech that is
both constitutionally protected and fails to meet even the
filtering companies' own blocking criteria. We turn first to the
governing legal principles to be applied to the facts in order to
determine whether the First Amendment permits a library to use
the filtering technology mandated by CIPA.
3. Level of Scrutiny Applicable to Content-based Restrictions
on Internet Access in Public Libraries
In analyzing the constitutionality of a public library's use
of Internet filtering software, we must first identify the
appropriate level of scrutiny to apply to this restriction on
patrons' access to speech. While plaintiffs argue that a public
library's use of such filters is subject to strict scrutiny, the
government maintains that the applicable standard is rational
basis review. If strict scrutiny applies, the government must
show that the challenged restriction on speech is narrowly
tailored to promote a compelling government interest and that no
less restrictive alternative would further that interest. United
States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813 (2000).
In contrast, under rational basis review, the challenged
restriction need only be reasonable; the government interest that
the restriction serves need not be compelling; the restriction
need not be narrowly tailored to serve that interest; and the
restriction "need not be the most reasonable or the only
reasonable limitation." Cornelius v. NAACP Legal Def. & Educ.
Fund, 473 U.S. 788, 808 (1985).