access to the Internet, have created a public forum that provides
any member of the public free access to information from millions
of speakers around the world. The unique speech-enhancing
character of Internet use in public libraries derives from the
openness of the public library to any member of the public
seeking to receive information, and the openness of the Internet
to any member of the public who wishes to speak. In particular,
speakers on the Internet enjoy low barriers to entry and the
ability to reach a mass audience, unhindered by the constraints
of geography. Moreover, just as the development of new media
"presents unique problems, which inform our assessment of the
interests at stake, and which may justify restrictions that would
be unacceptable in other contexts," United States v. Playboy
Entm't Group, Inc., 529 U.S. 803, 813 (2000), the development of
new media, such as the Internet, also presents unique
possibilities for promoting First Amendment values, which also
inform our assessment of the interests at stake, and which we
believe, in the context of the provision of Internet access in
public libraries, justify the application of heightened scrutiny
to content-based restrictions that might be subject to only
rational review in other contexts, such as the development of the
library's print collection. Cf. id. at 818 ("Technology expands
the capacity to choose; and it denies the potential of this
revolution if we assume the Government is best positioned to make
these choices for us.").
A faithful translation of First Amendment values from the
context of traditional public fora such as sidewalks and parks to
the distinctly non-traditional public forum of Internet access in
public libraries requires, in our view, that content-based
restrictions on Internet access in public libraries be subject to
the same exacting standards of First Amendment scrutiny as
content-based restrictions on speech in traditional public fora
such as sidewalks, town squares, and parks:
The architecture of the Internet, as it is right now,
is perhaps the most important model of free speech
since the founding. . . . Two hundred years after the
framers ratified the Constitution, the Net has taught
us what the First Amendment means. . . . The model for
speech that the framers embraced was the model of the
Internet distributed, noncentralized, fully free and
diverse.
Lessig, Code, at 167, 185. Indeed, "[m]inds are not changed in
streets and parks as they once were. To an increasing degree,
the more significant interchanges of ideas and shaping of public
consciousness occur in mass and electronic media." Denver Area
Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 802-03
(1996) (Kennedy, J., concurring in the judgment).
In providing patrons with even filtered Internet access, a
public library is not exercising editorial discretion in
selecting only speech of particular quality for inclusion in its
collection, as it may do when it decides to acquire print
materials. By providing its patrons with Internet access, public
libraries create a forum in which any member of the public may
receive speech from anyone around the world who wishes to
disseminate information over the Internet. Within this "vast
democratic forum[]," Reno, 521 U.S. at 868, which facilitates
speech that is "as diverse as human thought," id. at 870,
software filters single out for exclusion particular speech on
the basis of its disfavored content. We hold that these content-
based restrictions on patrons' access to speech are subject to
strict scrutiny.
4. Application of Strict Scrutiny
Having concluded that strict scrutiny applies to public
libraries' content-based restrictions on patrons' access to
speech on the Internet, we must next determine whether a public
library's use of Internet software filters can survive strict
scrutiny. To survive strict scrutiny, a restriction on speech
"must be narrowly tailored to promote a compelling Government
interest. If a less restrictive alternative would serve the
Government's purpose, the legislature must use that alternative."
United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813
(2000) (citation omitted); see also Fabulous Assocs., Inc. v. Pa.
Pub. Util. Comm'n, 896 F.2d 780, 787 (3d Cir. 1990) (holding that
a content-based burden on speech is permissible "only if [the
government] shows that the restriction serves a compelling
interest and that there are no less restrictive alternatives").
The application of strict scrutiny to a public library's use
of filtering products thus requires three distinct inquiries.
First, we must identify those compelling government interests
that the use of filtering software promotes. It is then
necessary to analyze whether the use of software filters is
narrowly tailored to further those interests. Finally, we must
determine whether less restrictive alternatives exist that would
promote the state interest.
1. State Interests
We begin by identifying those legitimate state interests
that a public library's use of software filters promotes.
1. Preventing the Dissemination of Obscenity, Child
Pornography, and Material Harmful to Minors
On its face, CIPA is clearly intended to prevent public
libraries' Internet terminals from being used to disseminate to
library patrons visual depictions that are obscene, child
pornography, or in the case of minors, harmful to minors. See
CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(1)(A) & (B)), Sec.
1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(B) & (C)) (requiring
any library that receives E-rate discounts to certify that it is
enforcing "a policy of Internet safety that includes the
operation of a technology protection measure with respect to any
of its computers with Internet access that protects against
access through such computers to visual depictions" that are
"obscene" or "child pornography," and, when the computers are in
use by minors, also protects against access to visual depictions
that are "harmful to minors").
The government's interest in preventing the dissemination of
obscenity, child pornography, or, in the case of minors, material
harmful to minors, is well-established. Speech that is obscene,
under the legal definition of obscenity set forth in the margin,
is unprotected under the First Amendment, and accordingly the
state has a compelling interest in preventing its distribution.
See Miller v. California, 413 U.S. 15, 18 (1973) ("This Court
has recognized that the States have a legitimate interest in
prohibiting dissemination or exhibition of obscene material.");
Stanley v. Georgia, 394 U.S. 557, 563 (1969) ("[T]he First and
Fourteenth Amendments recognize a valid governmental interest in
dealing with the problem of obscenity."); Roth v. United States,
354 U.S. 476, 485 (1957) ("We hold that obscenity is not within
the area of constitutionally protected speech of press.").
The First Amendment also permits the state to prohibit the
distribution to minors of material that, while not obscene with
respect to adults, is obscene with respect to minors. See
Ginsberg v. New York, 390 U.S. 629, 637 (1968) (holding that it
is constitutionally permissible "to accord minors under 17 a more
restricted right than that assured to adults to judge and
determine for themselves what sex material they may read or
see"). Proscribing the distribution of such material to minors
is constitutionally justified by the government's well-recognized
interest in safeguarding minors' well-being. See Reno v. ACLU,
521 U.S. 844, 869-70 (1997) ("[T]here is a compelling interest in
protecting the physical and psychological well-being of minors
which extend[s] to shielding them from indecent messages that are
not obscene by adult standards . . . .") (internal quotation
marks and citation omitted); New York v. Ferber, 458 U.S. 747,
756-57 (1982) ("It is evident beyond the need for elaboration
that a State's interest in safeguarding the physical and
psychological well-being of a minor is compelling.") (internal
quotation marks and citation omitted); Ginsberg, 390 U.S. at 640
("The State . . . has an independent interest in the well-being
of its youth.").
The government's compelling interest in protecting the well-
being of its youth justifies laws that criminalize not only the
distribution to minors of material that is harmful to minors, but
also the possession and distribution of child pornography.
See Osborne v. Ohio, 495 U.S. 103, 111 (1990) (holding that a
state "may constitutionally proscribe the possession and viewing
of child pornography"); Ferber, 458 U.S. at 757, 763 (noting that
"[t]he prevention of sexual exploitation and abuse of children
constitutes a government objective of surpassing importance," and
holding that "child pornography [is] a category of material
outside the protection of the First Amendment").
Thus, a public library's use of software filters survives
strict scrutiny if it is narrowly tailored to further the state's
well-recognized interest in preventing the dissemination of
obscenity and child pornography, and in preventing minors from
being exposed to material harmful to their well-being.
2. Protecting the Unwilling Viewer
Several of the libraries that use filters assert that
filters serve the libraries' interest in preventing patrons from
being unwillingly exposed to sexually explicit speech that the
patrons find offensive. Nearly every library proffered by either
the government or the plaintiffs received complaints, in varying
degrees of frequency, from library patrons who saw other patrons
accessing sexually explicit material on the library's Internet
terminals.
In general, First Amendment jurisprudence is reluctant to
recognize a legitimate state interest in protecting the unwilling
viewer from speech that is constitutionally protected. "Where
the designed benefit of a content-based speech restriction is to
shield the sensibilities of listeners, the general rule is that
the right of expression prevails, even where no less restrictive
alternative exists. We are expected to protect our own
sensibilities simply by averting our eyes." Playboy, 529 U.S. at
813 (2000) (internal quotation marks and citation omitted); see
also Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975)
("[W]hen the government, acting as censor, undertakes selectively
to shield the public from some kinds of speech on the ground that
they are more offensive than others, the First Amendment strictly
limits its power.").
For example, in Cohen v. California, 403 U.S. 15 (1971), the
Supreme Court reversed defendant's conviction for wearing, in a
municipal courthouse, a jacket bearing the inscription "Fuck the
Draft." The Court noted that "much has been made of the claim
that Cohen's distasteful mode of expression was thrust upon
unwilling or unsuspecting viewers, and that the State might
therefore legitimately act as it did in order to protect the
sensitive from otherwise unavoidable exposure to appellant's
crude form of protest." Id. at 21. This justification for
suppressing speech failed, however, because it "would effectively
empower a majority to silence dissidents simply as a matter of
personal predilections." Id. The Court concluded that "[t]hose
in the Los Angeles courthouse could effectively avoid further
bombardment of their sensibilities simply by averting their
eyes." Id.
Similarly, in Erznoznik, the Court invalidated on its face a
municipal ordinance prohibiting drive-in movie theaters from
showing films containing nudity if they were visible from a
public street or place. The city's "primary argument [was] that
it may protect its citizens against unwilling exposure to
materials that may be offensive." 422 U.S. at 208. The Court
soundly rejected this interest in shielding the unwilling viewer:
The plain, if at times disquieting, truth is that in
our pluralistic society, constantly proliferating new
and ingenious forms of expression, we are inescapably
captive audiences for many purposes. Much that we
encounter offends our esthetic, if not our political
and moral, sensibilities. Nevertheless, the
Constitution does not permit government to decide which
types of otherwise protected speech are sufficiently
offensive to require protection for the unwilling
listener or viewer. Rather, absent . . . narrow
circumstances . . . the burden normally falls upon the
viewer to avoid further bombardment of his
sensibilities simply by averting his eyes.
422 U.S. at 210-11 (internal quotation marks and citation
omitted).
The state's interest in protecting unwilling viewers from
exposure to patently offensive material is accounted for, to some
degree, by obscenity doctrine, which originated in part to permit
the state to shield the unwilling viewer. "The Miller standard,
like its predecessors, was an accommodation between the State's
interests in protecting the sensibilities of unwilling recipients
from exposure to pornographic material and the dangers of
censorship inherent in unabashedly content-based laws." Ferber,
458 U.S. at 756 (internal quotation marks and citation omitted);
see also Miller, 413 U.S. at 18-19 ("This Court has recognized
that the States have a legitimate interest in prohibiting
dissemination or exhibition of obscene material when the mode of
dissemination carries with it a significant danger of offending
the sensibilities of unwilling recipients or of exposure to
juveniles.") (citation omitted). To the extent that speech has
serious literary, artistic, political, or scientific value, and
therefore is not obscene under the Miller test of obscenity, the
state's interest in shielding unwilling viewers from such speech
is tenuous.
Nonetheless, the Court has recognized that in certain
limited circumstances, the state has a legitimate interest in
protecting the public from unwilling exposure to speech that is
not obscene. This interest has justified restrictions on speech
"when the speaker intrudes on the privacy of the home, or the
degree of captivity makes it impractical for the unwilling viewer
or auditor to avoid exposure." Erznoznik, 422 U.S. at 209
(citations omitted). Thus, in FCC v. Pacifica Foundation, 438
U.S. 726 (1978), the Court relied on the state's interest in
shielding viewers' sensibilities to uphold a prohibition against
profanity in radio broadcasts:
Patently offensive, indecent material presented over
the airwaves confronts the citizen, not only in public,
but also in the privacy of the home, where the
individual's right to be left alone plainly outweighs
the First Amendment rights of an intruder. Because the
broadcast audience is constantly tuning in and out,
prior warnings cannot completely protect the listener
or viewer from unexpected program content.
Id. at 748 (citation omitted); accord Frisby v. Schultz, 487 U.S.
474, 485 (1988) ("Although in many locations, we expect
individuals simply to avoid speech they do not want to hear, the
home is different."); see also Lehman v. City of Shaker Heights,
418 U.S. 298, 302 (1974) (plurality opinion) (upholding a
content-based restriction on the sale of advertising space in
public transit vehicles and noting that "[t]he streetcar audience
is a captive audience").
Although neither the Supreme Court nor the Third Circuit has
recognized a compelling state interest in shielding the
sensibilities of unwilling viewers, beyond laws intended to
preserve the privacy of individuals' homes or to protect captive
audiences, we do not read the case law as categorically
foreclosing recognition, in the public library setting, of the
state's interest in protecting unwilling viewers. See Pacifica,
438 U.S. at 749 n.27 ("Outside the home, the balance between the
offensive speaker and the unwilling audience may sometimes tip in
favor of the speaker, requiring the offended listener to turn
away.") (emphasis added). Under certain circumstances, therefore
a public library might have a compelling interest in protecting
library patrons and staff from unwilling exposure to sexually
explicit speech that, although not obscene, is patently
offensive.
3. Preventing Unlawful or Inappropriate Conduct
Several of the librarians proffered by the government
testified that unfiltered Internet access had led to occurrences
of criminal or otherwise inappropriate conduct by library
patrons, such as public masturbation, and harassment of library
staff and patrons, sometimes rising to the level of physical
assault. As in the case with patron complaints, however, the
government adduced no quantitative data comparing the frequency
of criminal or otherwise inappropriate patron conduct before the
library's use of filters and after the library's use of filters.
The sporadic anecdotal accounts of the government's library
witnesses were countered by anecdotal accounts by the plaintiffs'
library witnesses, that incidents of offensive patron behavior in
public libraries have long predated the advent of Internet
access.
Aside from a public library's interest in preventing patrons
from using the library's Internet terminals to receive obscenity
or child pornography, which constitutes criminal conduct, we are
constrained to reject any compelling state interest in regulating
patrons' conduct as a justification for content-based
restrictions on patrons' Internet access. "[T]he Court's First
Amendment cases draw vital distinctions between words and deeds,
between ideas and conduct." Ashcroft, 122 S. Ct. at 1403. First
Amendment jurisprudence makes clear that speech may not be
restricted on the ground that restricting speech will reduce
crime or other undesirable behavior that the speech is thought to
cause, subject to only a narrow exception for speech that "is
directed to inciting or producing imminent lawless action and is
likely to incite or produce such action." Brandenburg v. Ohio,
395 U.S. 444, 447 (1969) (per curiam). "The mere tendency of
speech to encourage unlawful acts is insufficient reason for
banning it." Ashcroft, 122 S. Ct. at 1403.
Outside of the narrow "incitement" exception, the
appropriate method of deterring unlawful or otherwise undesirable
behavior is not to suppress the speech that induces such
behavior, but to attach sanctions to the behavior itself. "Among
free men, the deterrents ordinarily to be applied to prevent
crime are education and punishment for violations of the law, not
abridgement of the rights of free speech." Kingsley Int'l
Pictures Corp. v. Regents of the Univ. of the State of New York,
360 U.S. 684, 689 (1959) (quoting Whitney v. Cal., 274 U.S. 357,
378 (1927) (Brandeis, J., concurring)); see also Bartnicki v.
Vopper, 532 U.S. 514, 529 (2001) ("The normal method of deterring
unlawful conduct is to impose an appropriate punishment on the
person who engages in it.").
4. Summary
In sum, we reject a public library's interest in preventing
unlawful or otherwise inappropriate patron conduct as a basis for
restricting patrons' access to speech on the Internet. The
proper method for a library to deter unlawful or inappropriate
patron conduct, such as harassment or assault of other patrons,
is to impose sanctions on such conduct, such as either removing
the patron from the library, revoking the patron's library
privileges, or, in the appropriate case, calling the police. We
believe, however, that the state interests in preventing the
dissemination of obscenity, child pornography, or in the case of
minors, material harmful to minors, and in protecting library
patrons from being unwillingly exposed to offensive, sexually
explicit material, could all justify, for First Amendment
purposes, a public library's use of Internet filters, provided
that use of such filters is narrowly tailored to further those
interests, and that no less restrictive means of promoting those
interests exist. Accordingly, we turn to the narrow tailoring
question.
2. Narrow Tailoring
Having identified the relevant state interests that could
justify content-based restrictions on public libraries' provision
of Internet access, we must determine whether a public library's
use of software filters is narrowly tailored to further those
interests. "It is not enough to show that the Government's ends
are compelling; the means must be carefully tailored to achieve
those ends." Sable Communications of Cal., Inc. v. FCC, 492 U.S.
115, 126 (1989). "[M]anifest imprecision of [a] ban . . .
reveals that its proscription is not sufficiently tailored to the
harms it seeks to prevent to justify . . . substantial
interference with . . . speech." FCC v. League of Women Voters
of Cal., 468 U.S. 364, 392 (1984).
The commercially available filters on which evidence was
presented at trial all block many thousands of Web pages that are
clearly not harmful to minors, and many thousands more pages
that, while possibly harmful to minors, are neither obscene nor
child pornography. See supra, Subsection II.E.7. Even the
defendants' own expert, after analyzing filtering products'
performance in public libraries, concluded that of the blocked
Web pages to which library patrons sought access, between 6% and
15% contained no content that meets even the filtering products'
own definitions of sexually explicit content, let alone the legal
definitions of obscenity or child pornography, which none of the
filtering companies that were studied use as the basis for their
blocking decisions. Moreover, in light of the flaws in these
studies, discussed in detail in our findings of fact above, these
percentages significantly underestimate the amount of speech that
filters erroneously block, and at best provide a rough lower
bound on the filters' rates of overblocking. Given the
substantial amount of constitutionally protected speech blocked
by the filters studied, we conclude that use of such filters is
not narrowly tailored with respect to the government's interest
in preventing the dissemination of obscenity, child pornography,
and material harmful to minors.
To be sure, the quantitative estimates of the rates of
overblocking apply only to those four commercially available
filters analyzed by plaintiffs' and defendants' expert witnesses.
Nonetheless, given the inherent limitations in the current state
of the art of automated classification systems, and the limits of
human review in relation to the size, rate of growth, and rate of
change of the Web, there is a tradeoff between underblocking and
overblocking that is inherent in any filtering technology, as our
findings of fact have demonstrated. We credit the testimony of
plaintiffs' expert witness, Dr. Geoffrey Nunberg, that no
software exists that can automatically distinguish visual
depictions that are obscene, child pornography, or harmful to
minors, from those that are not. Nor can software, through
keyword analysis or more sophisticated techniques, consistently
distinguish web pages that contain such content from web pages
that do not.