classifying Web pages, filtering companies are left with the
Sisyphean task of using human review to identify, from among the
approximately two billion web pages that exist, the 1.5 million
new pages that are created daily, and the many thousands of pages
whose content changes from day to day, those particular web pages
to be blocked. To cope with the Web's extraordinary size, rate
of growth, and rate of change, filtering companies that rely
solely on human review to block access to material falling within
their category definitions must use a variety of techniques that
will necessarily introduce substantial amounts of overblocking.
These techniques include blocking every page of a Web site that
contains only some content falling within the filtering
companies' category definitions, blocking every Web site that
shares an IP-address with a Web site whose content falls within
the category definitions, blocking "loophole sites," such as
anonymizers, cache sites, and translation sites, and allocating
staff resources to reviewing content of uncategorized pages
rather than re-reviewing pages, domain names, or IP-addresses
that have been already categorized to determine whether their
content has changed. While a filtering company could choose not
to use these techniques, due to the overblocking errors they
introduce, if a filtering company does not use such techniques,
its filter will be ineffective at blocking access to speech that
falls within its category definitions.
Thus, while it would be easy to design, for example, a
filter that blocks only ten Web sites, all of which are either
obscene, child pornography, or harmful to minors, and therefore
completely avoids overblocking, such a filter clearly would not
comply with CIPA, since it would fail to offer any meaningful
protection against the hundreds of thousands of Web sites
containing speech in these categories. As detailed in our
findings of fact, any filter that blocks enough speech to protect
against access to visual depictions that are obscene, child
pornography, and harmful to minors, will necessarily overblock
substantial amounts of speech that does not fall within these
categories.
This finding is supported by the government's failure to
produce evidence of any filtering technology that avoids
overblocking a substantial amount of protected speech. Where, as
here, strict scrutiny applies to a content-based restriction on
speech, the burden rests with the government to show that the
restriction is narrowly tailored to serve a compelling government
interest. See Playboy, 529 U.S. at 816 ("When the Government
restricts speech, the Government bears the burden of proving the
constitutionality of its actions."); see also R.A.V. v. City of
St. Paul, 505 U.S. 377, 382 (1992) ("Content-based regulations
are presumptively invalid."). Thus, it is the government's
burden, in this case, to show the existence of a filtering
technology that both blocks enough speech to qualify as a
technology protection measure, for purposes of CIPA, and avoids
overblocking a substantial amount of constitutionally protected
speech.
Here, the government has failed to meet its burden. Indeed,
as discussed in our findings of fact, every technology protection
measure used by the government's library witnesses or analyzed by
the government's expert witnesses blocks access to a substantial
amount of speech that is constitutionally protected with respect
to both adults and minors. In light of the credited testimony of
Dr. Nunberg, and the inherent tradeoff between overblocking and
underblocking, together with the government's failure to offer
evidence of any technology protection measure that avoids
overblocking, we conclude that any technology protection measure
that blocks a sufficient amount of speech to comply with CIPA's
requirement that it "protect[] against access through such
computers to visual depictions that are (I) obscene; (II) child
pornography; or (III) harmful to minors" will necessarily block
substantial amounts of speech that does not fall within these
categories. CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(1)(A)).
Hence, any public library's use of a software filter required by
CIPA will fail to be narrowly tailored to the government's
compelling interest in preventing the dissemination, through
Internet terminals in public libraries, of visual depictions that
are obscene, child pornography, or harmful to minors.
Where, as here, strict scrutiny applies, the government may
not justify restrictions on constitutionally protected speech on
the ground that such restrictions are necessary in order for the
government effectively to suppress the dissemination of
constitutionally unprotected speech, such as obscenity and child
pornography. "The argument . . . that protected speech may be
banned as a means to ban unprotected speech . . . . turns the
First Amendment upside down. The Government may not suppress
lawful speech as the means to suppress unlawful speech."
Ashcroft, 122 S. Ct. at 1404. This rule reflects the judgment
that "[t]he possible harm to society in permitting some
unprotected speech to go unpunished is outweighed by the
possibility that protected speech of others may be muted . . . ."
Broadrick v. Oklahoma, 413 U.S. at 612.
Thus, in Ashcroft, the Supreme Court rejected the
government's argument that a statute criminalizing the
distribution of constitutionally protected "virtual" child
pornography, produced through computer imaging technology without
the use of real children, was necessary to further the state's
interest in prosecuting the dissemination of constitutionally
unprotected child pornography produced using real children, since
"the possibility of producing images by using computer imaging
makes it very difficult for [the government] to prosecute those
who produce pornography using real children." Ashcroft, 122 S.
Ct. at 1404; see also Stanley, 394 U.S. at 567-58 (holding that
individuals have a First Amendment right to possess obscene
material, even though the existence of this right makes it more
difficult for the states to further their legitimate interest in
prosecuting the distribution of obscenity). By the same token,
even if the use of filters is effective in preventing patrons
from receiving constitutionally unprotected speech, the
government's interest in preventing the dissemination of such
speech cannot justify the use of the technology protection
measures mandated by CIPA, which necessarily block substantial
amounts of constitutionally protected speech.
CIPA thus resembles the Communications Decency Act, which
the Supreme Court facially invalidated in Reno v. ACLU, 521 U.S.
844 (1997). Although on its face, the CDA simply restricted the
distribution to minors of speech that was constitutionally
unprotected with respect to minors, as a practical matter, given
Web sites' difficulties in identifying the ages of Internet
users, the CDA effectively prohibited the distribution to adults
of material that was constitutionally protected with respect to
adults. Similarly, although on its face, CIPA, like the CDA,
requires the suppression of only constitutionally unprotected
speech, it is impossible as a practical matter, given the state
of the art of filtering technology, for a public library to
comply with CIPA without also blocking significant amounts of
constitutionally protected speech. We therefore hold that a
library's use of a technology protection measure required by CIPA
is not narrowly tailored to the government's legitimate interest
in preventing the dissemination of visual depictions that are
obscene, child pornography, or in the case of minors, harmful to
minors.
For the same reason that a public library's use of software
filters is not narrowly tailored to further the library's
interest in preventing its computers from being used to
disseminate visual depictions that are obscene, child
pornography, and harmful to minors, a public library's use of
software filters is not narrowly tailored to further the
library's interest in protecting patrons from being unwillingly
exposed to offensive, sexually explicit material. As discussed
in our findings of fact, the filters required by CIPA block
substantial numbers of Web sites that even the most puritanical
public library patron would not find offensive, such as
http://federo.com, a Web site that promotes federalism in Uganda,
which N2H2 blocked as "Adults Only, Pornography," and
http://www.vvm.com/~bond/home.htm, a site for aspiring dentists,
which was blocked by Cyberpatrol as "Adult/Sexually Explicit."
We list many more such examples in our findings of fact, see
supra, and find that such erroneously blocked sites number in at
least the thousands.
Although we have found large amounts of overblocking, even
if only a small percentage of sites blocked are erroneously
blocked, either with respect to the state's interest in
preventing adults from viewing material that is obscene or child
pornography and in preventing minors from viewing material that
is harmful to minors, or with respect to the state's interest in
preventing library patrons generally from being unwillingly
exposed to offensive, sexually explicit material, this
imprecision is fatal under the First Amendment. Cf. Reno, 521
U.S. at 874 ("[T]he CDA lacks the precision that the First
Amendment requires when a statute regulates the content of
speech."); League of Women Voters, 468 U.S. at 398 ("[E]ven if
some of the hazards at which [the challenged provision] was aimed
are sufficiently substantial, the restriction is not crafted with
sufficient precision to remedy those dangers that may exist to
justify the significant abridgement of speech worked by the
provision's broad ban . . . .").
While the First Amendment does not demand perfection when
the government restricts speech in order to advance a compelling
interest, the substantial amounts of erroneous blocking inherent
in the technology protection measures mandated by CIPA are more
than simply de minimis instances of human error. "The line
between speech unconditionally guaranteed and speech which may
legitimately be regulated, suppressed, or punished is finely
drawn. Error in marking that line exacts an extraordinary cost."
Playboy, 529 U.S. at 817 (internal quotation marks and citation
omitted). Indeed, "precision of regulation must be the
touchstone in an area so closely touching our most precious
freedoms." Keyishian v. Bd. of Regents of the Univ. of the State
of N.Y., 385 U.S. 589, 603 (1967) (internal quotation marks and
citation omitted); see also Bantam Books, Inc. v. Sullivan, 372
U.S. 58, 66 (1963) ("The separation of legitimate from
illegitimate speech calls for sensitive tools.") (internal
quotation marks and citation omitted). Where the government
draws content-based restrictions on speech in order to advance a
compelling government interest, the First Amendment demands the
precision of a scalpel, not a sledgehammer. We believe that a
public library's use of the technology protection measures
mandated by CIPA is not narrowly tailored to further the
governmental interests at stake.
Although the strength of different libraries' interests in
blocking certain forms of speech may vary from library to
library, depending on the frequency and severity of problems
experienced by each particular library, we conclude, based on our
findings of fact, that any public library's use of a filtering
product mandated by CIPA will necessarily fail to be narrowly
tailored to address the library's legitimate interests. Because
it is impossible for a public library to comply with CIPA without
blocking substantial amounts of speech whose suppression serves
no legitimate state interest, we therefore hold that CIPA is
facially invalid, even under the more stringent standard of
facial invalidity urged on us by the government, which would
require upholding CIPA if it is possible for just a single
library to comply with CIPA's conditions without violating the
First Amendment. See supra Part III.
3. Less Restrictive Alternatives
The constitutional infirmity of a public library's use of
software filters is evidenced not only by the absence of narrow
tailoring, but also by the existence of less restrictive
alternatives that further the government's legitimate interests.
See Playboy, 529 U.S. at 813 ("If a less restrictive alternative
would serve the Government's purpose, the legislature must use
that alternative."); Sable, 492 U.S. at 126 ("The Government may
. . . regulate the content of constitutionally protected speech
in order to promote a compelling interest if it chooses the least
restrictive means to further the articulated interest.").
As is the case with the narrow tailoring requirement, the
government bears the burden of proof in showing the
ineffectiveness of less restrictive alternatives. "When a
plausible, less restrictive alternative is offered to a content-
based speech restriction, it is the Government's obligation to
prove that the alternative will be ineffective to achieve its
goals." Playboy, 529 U.S. at 816; see also Reno, 521 U.S. at 879
("The breadth of this content-based restriction of speech imposes
an especially heavy burden on the Government to explain why a
less restrictive provision would not be as effective . . . .");
Fabulous Assocs., Inc. v. Pa. Pub. Util. Comm'n, 896 F.2d 780,
787 (3d Cir. 1990) ("We focus . . . on the more difficult
question whether the Commonwealth has borne its heavy burden of
demonstrating that the compelling state interest could not be
served by restrictions that are less intrusive on protected forms
of expression.") (internal quotation marks and citation omitted).
We find that there are plausible, less restrictive
alternatives to the use of software filters that would serve the
government's interest in preventing the dissemination of
obscenity and child pornography to library patrons. In
particular, public libraries can adopt Internet use policies that
make clear to patrons that the library's Internet terminals may
not be used to access illegal content. Libraries can ensure that
their patrons are aware of such policies by posting them in
prominent places in the library, requiring patrons to sign forms
agreeing to comply with the policy before the library issues
library cards to patrons, and by presenting patrons, when they
log on to one of the library's Internet terminals, with a screen
that requires the user to agree to comply with the library's
policy before allowing the user access to the Internet.
Libraries can detect violations of their Internet use
policies either through direct observation or through review of
the library's Internet use logs. In some cases, library staff or
patrons may directly observe a patron accessing obscenity and
child pornography. Libraries' Internet use logs, however, also
provide libraries with a means of detecting violations of their
Internet use policies. These logs, which can be kept regardless
whether a library uses filtering software, record the URL of
every Web page accessed by patrons. Although ordinarily the logs
do not link particular URLs with particular patrons, it is
possible, using access logs, to identify the patron who viewed
the Web page corresponding to a particular URL, if library staff
discover in the access logs the URL of a Web page containing
obscenity or child pornography. For example, David Biek,
Director of Tacoma Public Library's main branch, testified that
in the course of scanning Internet use logs he has found what
looked like attempts to access child pornography, notwithstanding
the fact that Tacoma uses Websense filtering software. In two
cases, he communicated his findings to law enforcement and turned
over the logs to law enforcement in response to a subpoena.
Once a violation of a library's Internet use policy is
detected through the methods described above, a library may
either issue the patron a warning, revoke the patron's Internet
privileges, or notify law enforcement, if the library believes
that the patron violated either state obscenity laws or child
pornography laws. Although these methods of detecting use of
library computers to access illegal content are not perfect, and
a library, out of respect for patrons' privacy, may choose not to
adopt such policies, the government has failed to show that such
methods are substantially less effective at preventing patrons
from accessing obscenity and child pornography than software
filters. As detailed in our findings of fact, the underblocking
that results from the size, rate of change, and rate of growth of
the Internet significantly impairs the software filters from
preventing patrons from accessing obscenity and child
pornography. Unless software filters are themselves perfectly
effective at preventing patrons from accessing obscenity and
child pornography, "[i]t is no response that [a less restrictive
alternative] . . . may not go perfectly every time." Playboy,
529 U.S. at 824; cf. Denver Area Educ. Telecomm. Consortium, Inc.
v. FCC, 518 U.S. 727, 759 (1996) ("No provision . . . short of an
absolute ban, can offer certain protection against assault by a
determined child.").
The government has not offered any data comparing the
frequency with which obscenity and child pornography is accessed
at libraries that enforce their Internet use policies through
software filters with the frequency with which obscenity and
child pornography is accessed at public libraries that enforce
their Internet use policies through methods other than software
filters. Although the government's library witnesses offered
anecdotal accounts of a reduction in the use of library computers
to access sexually explicit speech when filtering software was
mandated, these anecdotal accounts are not a substitute for more
robust analyses comparing the use of library computers to access
child pornography and material that meets the legal definition of
obscenity in libraries that use blocking software and in
libraries that use alternative methods. Cf. Playboy, 529 U.S.
at 822 ("[T]he Government must present more than anecdote and
supposition.").
We acknowledge that some library staff will be uncomfortable
using the "tap-on-the-shoulder" method of enforcing the library's
policy against using Internet terminals to access obscenity and
child pornography. The Greenville County Library, for example,
experienced high turnover among library staff when staff were
required to enforce the library's Internet use policy through the
tap-on-the-shoulder technique. Given filters' inevitable
underblocking, however, even a library that uses filtering will
have to resort to a tap-on-the-shoulder method of enforcement,
where library staff observes a patron openly violating the
library's Internet use policy, by, for example, accessing
material that is obviously child pornography but that the
filtering software failed to block. Moreover, a library
employee's degree of comfort in using the tap-on-the-shoulder
method will vary from employee to employee, and there is no
evidence that it is impossible or prohibitively costly for public
libraries to hire at least some employees who are comfortable
enforcing the library's Internet use policy.
We also acknowledge that use of a tap on the shoulder
delegates to librarians substantial discretion to determine which
Web sites a patron may view. Nonetheless, we do not believe that
this putative "prior restraint" problem can be avoided through
the use of software filters, for they effectively delegate to the
filtering company the same unfettered discretion to determine
which Web sites a patron may view. Moreover, as noted above,
violations of a public library's Internet use policy may be
detected not only by direct observation, but also by reviewing
the library's Internet use logs after the fact, which alleviates
the need for library staff to directly confront patrons while
they are viewing obscenity or child pornography.
Similar less restrictive alternatives exist for preventing
minors from accessing material harmful to minors. First,
libraries may use the tap-on-the-shoulder method when minors are
observed using the Internet to access material that is harmful to
minors. Requiring minors to use specific terminals, for example
in a children's room, that are in direct view of library staff
will increase the likelihood that library staff will detect
minors' use of the Internet to access material harmful to minors.
Alternatively, public libraries could require minors to use
blocking software only if they are unaccompanied by a parent, or
only if their parent consents in advance to their child's
unfiltered use of the Internet. "A court should not assume
that a plausible, less restrictive alternative would be
ineffective; and a court should not presume parents, given full
information, will fail to act." Playboy, 529 U.S. at 824.
In contrast to the "harmful to minors" statute upheld in
Ginsberg v. New York, 390 U.S. 629 (1968), which permitted
parents to determine whether to provide their children with
access to material otherwise prohibited by the statute, CIPA,
like the Communications Decency Act, which the Court invalidated
in Reno, contains no exception for parental consent:
[W]e noted in Ginsberg that "the prohibition against
sales to minors does not bar parents who so desire from
purchasing the magazines for their children." Under
the CDA, by contrast, neither the parents' consent
nor even their participation in the communication
would avoid the application of the statute.
Reno, 521 U.S. at 865 (citation omitted); see also Ginsberg, 390
U.S. at 639 ("It is cardinal with us that the custody, care, and
nurture of the child reside first in the parents, whose primary
function and freedom include preparation for obligations the
state can neither supply nor hinder." (quoting Prince v.
Massachusetts, 321 U.S. 158, 166 (1944))).
The Court in Playboy acknowledged that although a regime of
permitting parents voluntarily to block cable channels containing
sexually explicit programming might not be a completely effective
alternative to the challenged law, which effectively required
cable operators to transmit sexually explicit programming only
during particular hours, the challenged law itself was not
completely effective in serving the government's interest:
There can be little doubt, of course, that under a
voluntary blocking regime, even with adequate notice,
some children will be exposed to signal bleed; and we
need not discount the possibility that a graphic image
could have a negative impact on a young child. It must
be remembered, however, that children will be exposed
to signal bleed under time channeling as well. . . .
The record is silent as to the comparative
effectiveness of the two alternatives.
Playboy, 529 U.S. at 826. Similarly, in this case, the
government has offered no evidence comparing the effectiveness of
blocking software and alternative methods used by public
libraries to protect children from material harmful to minors.
Finally, there are other less restrictive alternatives to
filtering software that further public libraries' interest in
preventing patrons from unwillingly being exposed to patently
offensive, sexually explicit content on the Internet. To the
extent that public libraries are concerned with protecting
patrons from accidentally encountering such material while using
the Internet, public libraries can provide patrons with guidance
in finding the material they want and avoiding unwanted material.
Some public libraries also offer patrons the option of using
filtering software, if they so desire. Cf. Rowan v. Post Office
Dept., 397 U.S. 728 (1970) (upholding a federal statute
permitting individuals to instruct the Postmaster General not to
deliver advertisements that are "erotically arousing or sexually
provocative").