the government that generally the First Amendment subjects
libraries' content-based decisions about which print materials to
acquire for their collections to only rational review. In making
these decisions, public libraries are generally free to adopt
collection development criteria that reflect not simply patrons'
demand for certain material, but also the library's evaluation of
the material's quality. See Bernard W. Bell, Filth, Filtering,
and the First Amendment: Ruminations on Public Libraries' Use of
Internet Filtering Software, 53 Fed. Comm. L.J. 191, 225 (2001)
("Librarians should have the discretion to decide that the
library is committed to intellectual inquiry, not to the
satisfaction of the full range of human desires."). Thus, a
public library's decision to use the last $100 of its budget to
purchase the complete works of Shakespeare even though more of
its patrons would prefer the library to use the same amount to
purchase the complete works of John Grisham, is not, in our view,
subject to strict scrutiny. Cf. NEA v. Finley, 524 U.S. 569
(1998) (subjecting only to rational basis review the government's
decision to award NEA grants on the basis of, inter alia,
artistic excellence).
Nonetheless, we disagree with the government's argument that
public libraries' use of Internet filters is no different, for
First Amendment purposes, from the editorial discretion that they
exercise when they choose to acquire certain books on the basis
of librarians' evaluation of their quality. The central
difference, in our view, is that by providing patrons with even
filtered Internet access, the library permits patrons to receive
speech on a virtually unlimited number of topics, from a
virtually unlimited number of speakers, without attempting to
restrict patrons' access to speech that the library, in the
exercise of its professional judgment, determines to be
particularly valuable. Cf. Rosenberger v. Rector & Visitors of
Univ. of Va., 515 U.S. 819, 834 (1995) (applying strict scrutiny
to viewpoint-based restrictions where the state "does not itself
speak or subsidize transmittal of a message it favors but instead
expends funds to encourage a diversity of views from private
speakers"). See generally supra Section IV.C.
In those cases upholding the government's exercise of
editorial discretion in selecting certain speech for
subsidization or inclusion in a state-created forum, the state
actor exercising the editorial discretion has at least reviewed
the content of the speech that the forum facilitates. Thus, in
Finley the NEA examined the content of those works of art that it
chose to subsidize, and in Arkansas Educational Television
Commission v. Forbes, 523 U.S. 666 (1998), the public broadcaster
specifically reviewed and approved each speaker permitted to
participate in the debate. See id. at 673 ("In the case of
television broadcasting, . . . broad rights of access for outside
speakers would be antithetical, as a general rule, to the
discretion that stations and their editorial staff must exercise
to fulfill their journalistic purpose and statutory
obligations."); Finley, 524 U.S. at 586 ("The NEA's mandate is to
make esthetic judgments, and the inherently content-based
'excellence' threshold for NEA support sets it apart from the
subsidy at issue in Rosenberger which was available to all
student organizations that were 'related to the educational
purpose of the University . . . .'") (quoting Rosenberger, 515
U.S. at 824); see also Cornelius v. NAACP Legal Def. & Educ.
Fund, 473 U.S. 788, 804 (1985) ("The Government's consistent
policy has been to limit participation in the [Combined Federal
Campaign] to 'appropriate' voluntary agencies and to require
agencies seeking admission to obtain permission from federal and
local Campaign officials. . . . [T]here is no evidence
suggesting that the granting of the requisite permission is
merely ministerial."). The essence of editorial discretion
requires the exercise of professional judgment in examining the
content that the government singles out as speech of particular
value.
This exercise of editorial discretion is evident in a
library's decision to acquire certain books for its collection.
As the government's experts in library science testified, in
selecting a book for a library's collection, librarians evaluate
the book's quality by reference to a variety of criteria such as
its accuracy, the title's niche in relation to the rest of the
collection, the authority of the author, the publisher, the
work's presentation, and how it compares with other material
available in the same genre or on the same subject. Thus, the
content of every book that a library acquires has been reviewed
by the library's collection development staff or someone to whom
they have delegated the task, and has been judged to meet the
criteria that form the basis for the library's collection
development policy. Although some public libraries use "approval
plans" to delegate the collection development to third-party
vendors which provide the library with recommended materials that
the library is then free to retain or return to the vendor, the
same principle nonetheless attains.
In contrast, in providing patrons with even filtered
Internet access, a public library invites patrons to access
speech whose content has never been reviewed and recommended as
particularly valuable by either a librarian or a third party to
whom the library has delegated collection development decisions.
Although several of the government's librarian witnesses who
testified at trial purport to apply the same standards that
govern the library's acquisition of print materials to the
library's provision of Internet access to patrons, when public
libraries provide their patrons with Internet access, they
intentionally open their doors to vast amounts of speech that
clearly lacks sufficient quality to ever be considered for the
library's print collection. Unless a library allows access to
only those sites that have been preselected as having particular
value, a method that, as noted above, was tried and rejected by
the Westerville Ohio Public Library, see supra at 46-47, even a
library that uses software filters has opened its Internet
collection "for indiscriminate use by the general public." Perry
Educ. Ass'n v. Perry Local Educs. Ass'n, 460 U.S. 37, 47 (1983).
"[M]ost Internet forums including chat rooms, newsgroups, mail
exploders, and the Web are open to all comers." Reno v. ACLU,
521 U.S. 844, 880 (1997).
The fundamental difference between a library's print
collection and its provision of Internet access is illustrated by
comparing the extent to which the library opens its print
collection to members of the public to speak on a given topic and
the extent to which it opens its Internet terminals to members of
the public to speak on a given topic. When a public library
chooses to carry books on a selected topic, e.g. chemistry, it
does not open its print collection to any member of the public
who wishes to write about chemistry. Rather, out of the myriad
of books that have ever been written on chemistry, each book on
chemistry that the library carries has been reviewed and selected
because the person reviewing the book, in the exercise of his or
her professional judgment, has deemed its content to be
particularly valuable. In contrast, when a public library
provides Internet access, even filtered Internet access, it has
created a forum open to any member of the public who writes about
chemistry on the Internet, regardless of how unscientific the
author's methods or of how patently false the author's
conclusions are, regardless of the author's reputation or
grammar, and regardless of the reviews of the scientific
community.
Notwithstanding protestations in CIPA's legislative history
to the contrary, members of the general public do define the
content that public libraries make available to their patrons
through the Internet. Any member of the public with Internet
access could, through the free Web hosting services available on
the Internet, tonight jot down a few musings on any subject under
the sun, and tomorrow those musings would become part of public
libraries' online offerings and be available to any library
patron who seeks them out.
In providing its patrons with Internet access, a public
library creates a forum for the facilitation of speech, almost
none of which either the library's collection development staff
or even the filtering companies have ever reviewed. Although
filtering companies review a portion of the Web in classifying
particular sites, the portion of the Web that the filtering
companies actually review is quite small in relation to the Web
as a whole. The filtering companies' harvesting process,
described in our findings of fact, is intended to identify only a
small fraction of Web sites for the filtering companies to
review. Put simply, the state cannot be said to be exercising
editorial discretion permitted under the First Amendment when it
indiscriminately facilitates private speech whose content it
makes no effort to examine. Cf. Bell, supra, at 226 ("[C]ourts
should take a much more jaundiced view of library policies that
block Internet access to a very limited array of subjects than
they take of library policies that reserve Internet terminals for
very limited use.").
While the First Amendment permits the government to exercise
editorial discretion in singling out particularly favored speech
for subsidization or inclusion in a state-created forum, we
believe that where the state provides access to a "vast
democratic forum[]," Reno, 521 U.S. at 868, open to any member of
the public to speak on subjects "as diverse as human thought,"
id. at 870, and then selectively excludes from the forum certain
speech on the basis of its content, such exclusions are subject
to strict scrutiny. These exclusions risk fundamentally
distorting the unique marketplace of ideas that public libraries
create when they open their collections, via the Internet, to the
speech of millions of individuals around the world on a virtually
limitless number of subjects.
A public library's content-based restrictions on patrons'
Internet access thus resemble the content-based restrictions on
speech subsidized by the government, whether through direct
funding or through the creation of a designated public forum,
that the Supreme Court has subjected to strict scrutiny, as
discussed above in Section IV.C. Although the government may
subsidize a particular message representing the government's
viewpoint without having to satisfy strict scrutiny, see Rust v.
Sullivan, 500 U.S. 173 (1991), strict scrutiny applies to
restrictions that selectively exclude particular viewpoints from
a public forum designed to facilitate a wide range of viewpoints,
see Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.
819 (1995). Similarly, although the state's exercise of
editorial discretion in selecting particular speakers for
participation in a state-sponsored forum is subject to rational
basis review, see Ark. Educ. Television Comm'n v. Forbes, 523
U.S. 666 (1998), selective exclusions of particular speakers from
a forum otherwise open to any member of the public to speak are
subject to strict scrutiny, see City of Madison Joint School
Dist. No. 8 v. Wis. Employment Relations Comm'n, 429 U.S. 167
(1976).
And while the government may, subject only to rational basis
review, make content-based decisions in selecting works of
artistic excellence to subsidize, see NEA v. Finley, 524 U.S. 569
(1998), the Supreme Court has applied heightened scrutiny where
the government opens a general-purpose municipal theater for use
by the public, but selectively excludes disfavored content, see
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975),
where the government facilitates the speech of public
broadcasters on a virtually limitless number of topics, but
prohibits editorializing, see FCC v. League of Women Voters of
Cal., 468 U.S. 364 (1984), and where the government funds a wide
range of legal services but restricts funding recipients from
challenging welfare laws, see Legal Servs. Corp. v. Velazquez,
531 U.S. 533 (2001). Similarly, where a public library opens a
forum to an unlimited number of speakers around the world to
speak on an unlimited number of topics, strict scrutiny applies
to the library's selective exclusions of particular speech whose
content the library disfavors.
2. Analogy to Traditional Public Fora
Application of strict scrutiny to public libraries' use of
software filters, in our view, finds further support in the
extent to which public libraries' provision of Internet access
promotes First Amendment values in an analogous manner to
traditional public fora, such as sidewalks and parks, in which
content-based restrictions on speech are always subject to strict
scrutiny. The public library, by its very nature, is "designed
for freewheeling inquiry." Bd. of Education v. Pico, 457 U.S.
853, 915 (1982) (Rehnquist, J., dissenting). As such, the
library is a "mighty resource in the free marketplace of ideas,"
Minarcini v. Strongsville City Sch. Dist., 541 F.2d 577, 582 (6th
Cir. 1976), and represents a "quintessential locus of the receipt
of information." Kreimer v. Bureau of Police for Morristown, 958
F.2d 1242, 1255 (3d Cir. 1992); see also Sund v. City of Wichita
Falls, 121 F. Supp. 2d 530, 547 (N.D. Tex. 2000) ("The right to
receive information is vigorously enforced in the context of a
public library . . . ."); cf. Int'l Soc'y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 681 (1992) ("[A]
traditional public forum is property that has as 'a principal
purpose . . . the free exchange of ideas.'") (quoting Cornelius
v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800 (1985)).
We acknowledge that the provision of Internet access in a
public library does not enjoy the historical pedigree of streets,
sidewalks, and parks as a vehicle of free expression.
Nonetheless, we believe that it shares many of the
characteristics of these traditional public fora that uniquely
promote First Amendment values and accordingly warrant
application of strict scrutiny to any content-based restriction
on speech in these fora. Regulation of speech in streets,
sidewalks, and parks is subject to the highest scrutiny not
simply by virtue of history and tradition, but also because the
speech-facilitating character of sidewalks and parks makes them
distinctly deserving of First Amendment protection. Many of
these same speech-promoting features of the traditional public
forum appear in public libraries' provision of Internet access.
First, public libraries, like sidewalks and parks, are
generally open to any member of the public who wishes to receive
the speech that these fora facilitate, subject only to narrow
limitations. See Kreimer, 958 F.2d at 1260 (noting that a public
library does not retain unfettered discretion "to choose whom it
will permit to enter the Library," but upholding the library's
right to exclude patrons who harass patrons or whose offensive
personal hygiene precludes the library's use by other patrons).
Moreover, like traditional public fora, public libraries are
funded by taxpayers and therefore do not charge members of the
public each time they use the forum. The only direct cost to
library patrons who wish to receive information, whether via the
Internet or the library's print collection, is the time spent
reading.
By providing Internet access to millions of Americans to
whom such access would otherwise be unavailable, public libraries
play a critical role in bridging the digital divide separating
those with access to new information technologies from those that
lack access. See generally National Telecommunications and
Information Administration, U.S. Department of Commerce, Falling
Through the Net: Defining the Digital Divide (1999), available at
http://www.ntia.doc.gov/ntiahome/fttn99/contents.html. Cf.
Velazquez, 531 U.S. at 546 (invalidating a content-based
restriction on the speech of federally funded legal services
corporations and noting that given the financial hardship of
legal services corporations' clients, "[t]he restriction on
speech is even more problematic because in cases where the
attorney withdraws from a representation, the client is unlikely
to find other counsel"). Public libraries that provide Internet
access greatly expand the educational opportunities for millions
of Americans who, as explained in the margin, would otherwise be
deprived of the benefits of this new medium.
Just as important as the openness of a forum to listeners is
its openness to speakers. Parks and sidewalks are paradigmatic
loci of First Amendment values in large part because they permit
speakers to communicate with a wide audience at low cost. One
can address members of the public in a park for little more than
the cost of a soapbox, and one can distribute handbills on the
sidewalk for little more than the cost of a pen, paper, and some
photocopies. See Martin v. City of Struthers, 319 U.S. 141, 146
(1943) ("Door to door distribution of circulars is essential to
the poorly financed causes of little people."); Laurence H.
Tribe, American Constitutional Law Sec. 12-24 at 987 (2d ed. 1988)
("The 'public forum' doctrine holds that restrictions on speech
should be subject to higher scrutiny when, all other things being
equal, that speech occurs in areas playing a vital role in
communication such as in those places historically associated
with first amendment activities, such as streets, sidewalks, and
parks especially because of how indispensable communication in
these places is to people who lack access to more elaborate (and
more costly) channels."); Daniel A. Farber, Free Speech without
Romance: Public Choice and the First Amendment, 105 Harv. L. Rev.
554, 574 n.86 (1991) (noting that traditional public fora "are
often the only place where less affluent groups and individuals
can effectively express their message"); Harry Kalven, Jr., The
Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev.
1, 30 ("[T]he parade, the picket, the leaflet, the sound truck,
have been the media of communication exploited by those with
little access to the more genteel means of communication.").
Similarly, given the existence of message boards and free
Web hosting services, a speaker can, via the Internet, address
the public, including patrons of public libraries, for little
more than the cost of Internet access. As the Supreme Court
explained in Reno v. ACLU, 521 U.S. 844 (1997), "the Internet can
hardly be considered a 'scarce' expressive commodity. It
provides relatively unlimited, low-cost capacity for
communication of all kinds." Id. at 870. Although the cost of a
home computer and Internet access considerably exceeds the cost
of a soapbox or a few hundred photocopies, speakers wishing to
avail themselves of the Internet may gain free access in schools,
workplaces, or the public library. As Professor Lessig has
explained:
The "press" in 1791 was not the New York Times or the
Wall Street Journal. It did not comprise large
organizations of private interests, with millions of
readers associated with each organization. Rather, the
press then was much like the Internet today. The cost
of a printing press was low, the readership was slight,
and anyone (within reason) could become a publisher
and in fact an extraordinary number did. When the
Constitution speaks of the rights of the "press," the
architecture it has in mind is the architecture of the
Internet.
Lawrence Lessig, Code 183 (1999).
While public libraries' provision of Internet access shares
many of the speech-promoting qualities of traditional public
fora, it also facilitates speech in ways that traditional public
fora cannot. In particular, whereas the architecture of real
space limits the audience of a pamphleteer or soapbox orator to
people within the speaker's immediate vicinity, the Internet
renders the geography of speaker and listener irrelevant:
Through the use of chat rooms, any person with a phone
line can become a town crier with a voice that
resonates farther than it could from any soapbox.
Through the use of Web pages, mail exploders, and
newsgroups, the same individual can become a
pamphleteer.
Reno, 521 U.S. at 870 . By providing patrons with Internet
access, public libraries in effect open their doors to an
unlimited number of potential speakers around the world, inviting
the speech of any member of the public who wishes to communicate
with library patrons via the Internet.
Due to the low costs for speakers and the irrelevance of
geography, the volume of speech available to library patrons on
the Internet is enormous and far exceeds the volume of speech
available to audiences in traditional public fora. See id. at
868 (referring to "the vast democratic forums of the Internet").
Indeed, as noted in our findings of fact, the Web is estimated
to contain over one billion pages, and is said to be growing at a
rate of over 1.5 million pages per day. See id. at 885 (noting
"[t]he dramatic expansion of this new marketplace of ideas").
This staggering volume of content on the Internet "is as diverse
as human thought," id. at 870, and "is thus comparable, from the
reader's viewpoint, to . . . a vast library including millions of
readily available and indexed publications," id. at 853. As a
result of the Internet's unique speech-facilitating qualities,
"it is hard to find an aspiring social movement, new or old, of
left, right, or center, without a website, a bulletin board, and
an email list." Kreimer, supra n.27, at 125. "[T]he growth of
the Internet has been and continues to be phenomenal." Reno, 521
U.S. at 885.
This extraordinary growth of the Internet illustrates the
extent to which the Internet promotes First Amendment values in
the same way that the historical use of traditional public fora
for speaking, handbilling, and protesting testifies to their
effectiveness as vehicles for free speech. Cf. Martin, 319 U.S.
at 145 ("The widespread use of this method of communication
[door-to-door distribution of leaflets] by many groups espousing
various causes attests its major importance."); Schneider v.
State, 308 U.S. 147, 164 (1939) ("[P]amphlets have proved most
effective instruments in the dissemination of opinion.").
The provision of Internet access in public libraries, in
addition to sharing the speech-enhancing qualities of fora such
as streets, sidewalks, and parks, also supplies many of the
speech-enhancing properties of the postal service, which is open
to the public at large as both speakers and recipients of
information, and provides a relatively low-cost means of
disseminating information to a geographically dispersed audience.
See Lamont v. Postmaster Gen., 381 U.S. 301 (1965) (invalidating
a content-based prior restraint on the use of the mails); see
also Blount v. Rizzi, 400 U.S. 410 (1971) (same). Indeed, the
Supreme Court's description of the postal system in Lamont seems
equally apt as a description of the Internet today: "the postal
system . . . is now the main artery through which the business,
social, and personal affairs of the people are conducted . . . ."
381 U.S. at 305 n.3.