the basis of its content, and content-based restrictions on
speech are generally subject to strict scrutiny. See Playboy,
529 U.S. at 813 ("[A] content-based speech restriction . . . can
stand only if it satisfies strict scrutiny."). Strict scrutiny
does not necessarily apply to content-based restrictions on
speech, however, where the restrictions apply only to speech on
government property, such as public libraries. "[I]t is . . .
well settled that the government need not permit all forms of
speech on property that it owns and controls." Int'l Soc'y for
Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). We
perforce turn to a discussion of public forum doctrine.
1. Overview of Public Forum Doctrine
The government's power to restrict speech on its own
property is not unlimited. Rather, under public forum doctrine,
the extent to which the First Amendment permits the government to
restrict speech on its own property depends on the character of
the forum that the government has created. See Cornelius v.
NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985). Thus,
the First Amendment affords greater deference to restrictions on
speech in those areas considered less amenable to free
expression, such as military bases, see Greer v. Spock, 424 U.S.
828 (1976), jail grounds, see Adderley v. Florida, 385 U.S. 39
(1966), or public airport terminals, see Int'l Soc'y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), than to
restrictions on speech in state universities, see Rosenberger v.
Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995), or
streets, sidewalks and public parks, see Frisby v. Schultz, 487
U.S. 474 (1988); Hague v. CIO, 307 U.S. 496 (1939).
The Supreme Court has identified three types of fora for
purposes of identifying the level of First Amendment scrutiny
applicable to content-based restrictions on speech on government
property: traditional public fora, designated public fora, and
nonpublic fora. Traditional public fora include sidewalks,
squares, and public parks:
[S]treets and parks . . . have immemorially been held
in trust for the use of the public and, time out of
mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing
public questions. Such use of the streets and public
places has, from ancient times, been a part of the
privileges, immunities, rights, and liberties of
citizens.
Hague, 307 U.S. at 515. "In these quintessential public forums,
. . . [f]or the State to enforce a content-based exclusion it
must show that its regulation is necessary to serve a compelling
state interest and that it is narrowly drawn to achieve that
end." Perry Educ. Ass'n v. Perry Local Educs. Ass'n, 460 U.S.
37, 45 (1983); see also Int'l Soc'y for Krishna Consciousness,
505 U.S. at 678 ("[R]egulation of speech on government property
that has traditionally been available for public expression is
subject to the highest scrutiny."); Frisby, 487 U.S. at 480
("[W]e have repeatedly referred to public streets as the
archetype of a traditional public forum.").
A second category of fora, known as designated (or limited)
public fora, "consists of public property which the State has
opened for use by the public as a place for expressive activity."
Perry, 460 U.S. at 46. Whereas any content-based restriction on
the use of traditional public fora is subject to strict scrutiny,
the state is generally permitted, as long as it does not
discriminate on the basis of viewpoint, to limit a designated
public forum to certain speakers or the discussion of certain
subjects. See Perry, 460 U.S. at 45 n.7. Once it has defined
the limits of a designated public forum, however, "[r]egulation
of such property is subject to the same limitations as that
governing a traditional public forum." Int'l Soc'y for Krishna
Consciousness, 505 U.S. at 678. Examples of designated fora
include university meeting facilities, see Widmar v. Vincent, 454
U.S. 263 (1981), school board meetings, see City of Madison Joint
School Dist. v. Wisc. Employment Relations Comm'n, 429 U.S. 167
(1976), and municipal theaters, see Southeastern Promotions, Ltd.
v. Conrad, 420 U.S. 546 (1975).
The third category, nonpublic fora, consists of all
remaining public property. "Limitations on expressive activity
conducted on this last category of property must survive only a
much more limited review. The challenged regulation need only be
reasonable, as long as the regulation is not an effort to
suppress the speaker's activity due to disagreement with the
speaker's view." Int'l Soc'y for Krishna Consciousness, 505 U.S.
at 679.
2. Contours of the Relevant Forum: the Library's
Collection as a Whole or the Provision of Internet
Access?
To apply public forum doctrine to this case, we must first
determine whether the appropriate forum for analysis is the
library's collection as a whole, which includes both print and
electronic resources, or the library's provision of Internet
access. Where a plaintiff seeks limited access, for expressive
purposes, to governmentally controlled property, the Supreme
Court has held that the relevant forum is defined not by the
physical limits of the government property at issue, but rather
by the specific access that the plaintiff seeks:
Although . . . as an initial matter a speaker must seek
access to public property or to private property
dedicated to public use to evoke First Amendment
concerns, forum analysis is not completed merely by
identifying the government property at issue. Rather,
in defining the forum we have focused on the access
sought by the speaker. When speakers seek general
access to public property, the forum encompasses that
property. In cases in which limited access is sought,
our cases have taken a more tailored approach to
ascertaining the perimeters of a forum within the
confines of the government property.
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788,
801 (1985).
Thus, in Cornelius, where the plaintiffs were legal defense
and political advocacy groups seeking to participate in the
Combined Federal Campaign charity drive, the Court held that the
relevant forum, for First Amendment purposes, was not the entire
federal workplace, but rather the charity drive itself. Id. at
801. Similarly, in Perry Education Association v. Perry Local
Educators' Association, 460 U.S. 37 (1983), which addressed a
union's right to access a public school's internal mail system
and teachers' mailboxes, the Court identified the relevant forum
as the school's mail system, not the public school as a whole.
In Widmar v. Vincent, 454 U.S. 263 (1981), in which a student
group challenged a state university's restrictions on use of its
meeting facilities, the Court identified the relevant forum as
the meeting facilities to which the plaintiffs sought access, not
the state university generally. And in Christ's Bride
Ministries, Inc. v. SEPTA, 148 F.3d 242 (3d Cir. 1998), involving
a First Amendment challenge to the removal of advertisements from
subway and commuter rail stations, the Third Circuit noted that
the forum at issue was not the rail and subway stations as a
whole, but rather the advertising space within the stations. Id.
at 248. Although these cases dealt with the problem of
identifying the relevant forum where speakers are claiming a
right of access, we believe that the same approach applies to
identifying the relevant forum where the parties seeking access
are listeners or readers.
In this case, the patron plaintiffs are not asserting a
First Amendment right to compel public libraries to acquire
certain books or magazines for their print collections. Nor are
the Web site plaintiffs claiming a First Amendment right to
compel public libraries to carry print materials that they
publish. Rather, the right at issue in this case is the specific
right of library patrons to access information on the Internet,
and the specific right of Web publishers to provide library
patrons with information via the Internet. Thus, the relevant
forum for analysis is not the library's entire collection, which
includes both print and electronic media, such as the Internet,
but rather the specific forum created when the library provides
its patrons with Internet access.
Although a public library's provision of Internet access
does not resemble the conventional notion of a forum as a well-
defined physical space, the same First Amendment standards apply.
See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.
819, 830 (1995) (holding that a state university's student
activities fund "is a forum more in a metaphysical than a spatial
or geographic sense, but the same principles are applicable");
see also Cornelius, 473 U.S. at 801 (identifying the Combined
Federal Campaign charity drive as the relevant unit of analysis
for application of public forum doctrine).
3. Content-based Restrictions in Designated Public Fora
Unlike nonpublic fora such as airport terminals, see Int'l
Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672
(1992), military bases, see Greer v. Spock, 424 U.S. 828 (1976),
jail grounds, see Adderley v. Florida, 385 U.S. 39 (1966), the
federal workplace, see Cornelius v. NAACP Legal Def. & Educ.
Fund, 473 U.S. 788, 805 (1985), and public transit vehicles, see
Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), the
purpose of a public library in general, and the provision of
Internet access within a public library in particular, is "for
use by the public . . . for expressive activity," Perry Educ.
Ass'n v. Perry Local Educs. Ass'n, 460 U.S. 37, 45 (1983),
namely, the dissemination and receipt by the public of a wide
range of information. We are satisfied that when the government
provides Internet access in a public library, it has created a
designated public forum. See Mainstream Loudoun v. Bd. of
Trustees of the Loudoun County Library, 24 F. Supp. 2d 552, 563
(E.D. Va. 1998); cf. Kreimer v. Bureau of Police, 958 F.2d 1242,
1259 (3d Cir. 1992) (holding that a public library is a limited
public forum).
Relying on those cases that have recognized that government
has leeway, under the First Amendment, to limit use of a
designated public forum to narrowly specified purposes, and that
content-based restrictions on speech that are consistent with
those purposes are subject only to rational basis review, the
government argues for application of rational basis review to
public libraries' decisions about which content to make available
to their patrons via the Internet. See Rosenberger, 515 U.S.
819, 829 (1995) ("The necessities of confining a forum to the
limited and legitimate purposes for which it was created may
justify the State in reserving it for certain groups or for the
discussion of certain topics."); Perry, 460 U.S. at 46 n.7 (1983)
("A public forum may be created for a limited purpose such as use
by certain groups . . . or for the discussion of certain
subjects.").
In particular, the government forcefully argues that a
public library's decision to limit the content of its digital
offerings on the Internet should be subject to no stricter
scrutiny than its decisions about what content to make available
to its patrons through the library's print collection. According
to the government, just as a public library may choose to acquire
books about gardening but not golf, without having to show that
this content-based restriction on patrons' access to speech is
narrowly tailored to further a compelling state interest, so may
a public library make content-based decisions about which speech
to make available on the Internet, without having to show that
such a restriction satisfies strict scrutiny.
Plaintiffs respond that the government's ability to restrict
the content of speech in a designated public forum by restricting
the purpose of the designated public forum that it creates is not
unlimited. Cf. Legal Servs. Corp. v. Velazquez, 531 U.S. 533,
547 (2001) ("Congress cannot recast a condition on funding as a
mere definition of its program in every case, lest the First
Amendment be reduced to a simple semantic exercise."). As
Justice Kennedy has explained:
If Government has a freer hand to draw content-based
distinctions in limiting a forum than in excluding
someone from it, the First Amendment would be a dead
letter in designated public forums; every exclusion
could be recast as a limitation. . . . The power to
limit or redefine forums for a specific legitimate
purpose does not allow the government to exclude
certain speech or speakers from them for any reason at
all.
Denver Area Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 801
(1996) (Kennedy, J., concurring in the judgment).
Although we agree with plaintiffs that the First Amendment
imposes some limits on the state's ability to adopt content-based
restrictions in defining the purpose of a public forum, precisely
what those limits are is unclear, and presents a difficult
problem in First Amendment jurisprudence. The Supreme Court's
"cases have not yet determined . . . that government's decision
to dedicate a public forum to one type of content or another is
necessarily subject to the highest level of scrutiny. Must a
local government, for example, show a compelling state interest
if it builds a band shell in the park and dedicates it solely to
classical music (but not to jazz)? The answer is not obvious."
Denver, 518 U.S. at 750 (plurality opinion); see also
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 572-73
(1975) (Rehnquist, J., dissenting) ("May an opera house limit its
productions to operas, or must it also show rock musicals? May a
municipal theater devote an entire season to Shakespeare, or is
it required to book any potential producer on a first come, first
served basis?").
We believe, however, that certain principles emerge from the
Supreme Court's jurisprudence on this question. In particular,
and perhaps somewhat counterintuitively, the more narrow the
range of speech that the government chooses to subsidize (whether
directly, through government grants or other funding, or
indirectly, through the creation of a public forum) the more
deference the First Amendment accords the government in drawing
content-based distinctions.
At one extreme lies the government's decision to fund a
particular message that the government seeks to disseminate. In
this context, content-based restrictions on the speech that
government chooses to subsidize are clearly subject to at most
rational basis review, and even viewpoint discrimination is
permissible. For example, "[w]hen Congress established a
National Endowment for Democracy to encourage other countries to
adopt democratic principles, 22 U.S.C. Sec. 4411(b), it was not
constitutionally required to fund a program to encourage
competing lines of political philosophy such as communism and
fascism." Rust v. Sullivan, 500 U.S. 173, 194 (1991); see also
Velazquez, 531 U.S. at 541 ("[V]iewpoint-based funding decisions
can be sustained in instances in which the government is itself
the speaker, or in instances, like Rust, in which the government
used private speakers to transmit information pertaining to its
own program.") (internal quotation marks and citation omitted).
Although not strictly controlling, the Supreme Court's
unconstitutional conditions cases, such as Rust and Velazquez,
are instructive for purposes of analyzing content-based
restrictions on the use of public fora. This is because the
limitations that government places on the use of a public forum
can be conceptualized as conditions that the government attaches
to the receipt of a benefit that it offers, namely, the use of
government property. Public forum cases thus resemble those
unconstitutional conditions cases involving First Amendment
challenges to the conditions that the state places on the receipt
of a government benefit. See Velazquez, 531 U.S. at 544 ("As
this suit involves a subsidy, limited forum cases . . . may not
be controlling in the strict sense, yet they do provide some
instruction.").
Even when the government does not fund the dissemination of
a particular government message, the First Amendment generally
permits government, subject to the constraints of viewpoint
neutrality, to create public institutions such as art museums and
state universities, dedicated to facilitating the dissemination
of private speech that the government believes to have particular
merit. Thus, in NEA v. Finley, 524 U.S. 569 (1998), the Court
upheld the use of content-based restrictions in a federal program
awarding grants to artists on the basis of, inter alia, artistic
excellence. "The very assumption of the NEA is that grants will
be awarded according to the artistic worth of competing
applications, and absolute neutrality is simply inconceivable."
Id. at 585 (internal quotation marks and citation omitted).
Similarly, as Justice Stevens explained in his concurring
opinion in Widmar v. Vincent, 454 U.S. 263 (1981), the First
Amendment does not necessarily subject to strict scrutiny a state
university's use of content-based means of allocating scarce
resources, including limited public fora such as its meeting
facilities:
Because every university's resources are limited, an
educational institution must routinely make decisions
concerning the use of the time and space that is
available for extracurricular activities. In my
judgment, it is both necessary and appropriate for
those decisions to evaluate the content of a proposed
student activity. I should think it obvious, for
example, that if two groups of 25 students requested
the use of a room at a particular time one to view
Mickey Mouse cartoons and the other to rehearse an
amateur performance of Hamlet the First Amendment
would not require that the room be reserved for the
group that submitted its application first. Nor do I
see why a university should have to establish a
"compelling state interest" to defend its decision to
permit one group to use the facility and not the other.
Id. at 278 (Stevens, J., concurring in the judgment).
The more broadly the government facilitates private speech,
however, the less deference the First Amendment accords to the
government's content-based restrictions on the speech that it
facilitates. Thus, where the government creates a designated
public forum to facilitate private speech representing a diverse
range of viewpoints, the government's decision selectively to
single out particular viewpoints for exclusion is subject to
strict scrutiny. Compare Rosenberger, 515 U.S. at 834 (applying
heightened First Amendment scrutiny to viewpoint-based
restrictions on the use of a limited public forum where the
government "does not itself speak or subsidize transmittal of a
message it favors but instead expends funds to encourage a
diversity of views from private speakers"), with Finley, 524 U.S.
at 586 ("In the context of arts funding, in contrast to many
other subsidies, the Government does not indiscriminately
encourage a diversity of views from private speakers.") (internal
quotation marks and citation omitted).
Similarly, although the government may create a designated
public forum limited to speech on a particular topic, if the
government opens the forum to members of the general public to
speak on that topic while selectively singling out for exclusion
particular speakers on the basis of the content of their speech,
that restriction is subject to strict scrutiny. For instance, in
City of Madison Joint School District No. 8 v. Wisconsin
Employment Relations Commission, 429 U.S. 167 (1976), the Court
held that where a school board opens its meetings for public
participation, it may not, consistent with the First Amendment,
prohibit teachers other than union representatives from speaking
on the subject of pending collective-bargaining negotiations.
See id. at 175 (noting that the state "has opened a forum for
direct citizen involvement"); see also Ark. Educ. Television
Comm'n v. Forbes, 523 U.S. 666, 680 (1998) (distinguishing, for
purposes of determining the appropriate level of First Amendment
scrutiny, a televised debate in which a public broadcasting
station exercises editorial discretion in selecting participating
candidates from a debate that has "an open-microphone format").
Finally, content-based restrictions on speech in a
designated public forum are most clearly subject to strict
scrutiny when the government opens a forum for virtually
unrestricted use by the general public for speech on a virtually
unrestricted range of topics, while selectively excluding
particular speech whose content it disfavors. Thus, in Conrad,
the Court held that a local government violated the First
Amendment when it denied a group seeking to perform the rock
musical "Hair" access to a general-purpose municipal theater open
for the public at large to use for performances. See also
Denver, 518 U.S. at 802 (Kennedy, J., concurring in the judgment)
(suggesting that strict scrutiny would not apply to a local
government's decision to "build[] a band shell in the park and
dedicate[] it solely to classical music (but not jazz)," but
would apply to "the Government's creation of a band shell in
which all types of music might be performed except for rap
music").
Similarly, in FCC v. League of Women Voters of Cal., 468
U.S. 364 (1984), the Court subjected to heightened scrutiny a
federal program that funded a wide range of public broadcasting
stations that disseminated speech on a wide range of subjects,
where the federal program singled out for exclusion speech whose
content amounted to editorializing. As the Court later
explained:
In FCC v. League of Women Voters of Cal., 468 U.S. 364
(1984) the Court was instructed by its understanding of the
dynamics of the broadcast industry in holding that
prohibitions against editorializing by public radio networks
were an impermissible restriction, even though the
Government enacted the restriction to control the use of
public funds. The First Amendment forbade the Government
from using the forum in an unconventional way to suppress
speech inherent in the nature of the medium.
Velazquez, 531 U.S. at 543.
In sum, the more widely the state opens a forum for members
of the public to speak on a variety of subjects and viewpoints,
the more vulnerable is the state's decision selectively to
exclude certain speech on the basis of its disfavored content, as
such exclusions distort the marketplace of ideas that the state
has created in establishing the forum. Cf. Velazquez, 531 U.S.
at 544 ("Restricting LSC attorneys in advising their clients and
in presenting arguments and analyses to the courts distorts the
legal system by altering the traditional role of the attorneys in
much the same way broadcast systems or student publication
networks were changed in the limited forum cases . . . .").
Thus, we believe that where the state designates a forum for
expressive activity and opens the forum for speech by the public
at large on a wide range of topics, strict scrutiny applies to
restrictions that single out for exclusion from the forum
particular speech whose content is disfavored. "Laws designed or
intended to suppress or restrict the expression of specific
speakers contradict basic First Amendment principles." United
States v. Playboy Entm't Group, Inc., 529 U.S. 803, 812 (2000);
see also Denver, 518 U.S. at 782 (Kennedy, J., concurring in the
judgment) (noting the flaw in a law that "singles out one sort of
speech for vulnerability to private censorship in a context where
content-based discrimination is not otherwise permitted").
Compare Forbes, 523 U.S. at 679 (holding that the state does not
create a public forum when it "allows selective access for
individual speakers rather than general access for a class of
speakers") (emphasis added), with Police Dep't of the City of
Chicago v. Mosley, 408 U.S. 92, 96 (1972) ("Selective exclusions
from a public forum may not be based on content alone, and may
not be justified by reference to content alone.") (emphasis
added).
We note further that to the extent that the government
creates a public forum expressly designed to facilitate the
dissemination of private speech, opens the forum to any member of
the public to speak on any virtually any topic, and then
selectively targets certain speech for exclusion based on its
content, the government is singling out speech in a manner that
resembles the discriminatory taxes on the press that the Supreme
Court subjected to heightened First Amendment scrutiny in
Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987),
and Minneapolis Star & Tribune Co. v. Minnesota Commissioner of
Revenue, 460 U.S. 575 (1983), which we explain in the margin.
4. Reasons for Applying Strict Scrutiny
1. Selective Exclusion From a "Vast Democratic
Forum"