explicit content viewed by other patrons, public libraries have
used a variety of less restrictive methods. One alternative is
simply to segregate filtered from unfiltered terminals, and to
place unfiltered terminals outside of patrons' sight-lines and
areas of heavy traffic. Even the less restrictive alternative of
allowing unfiltered access on only a single terminal, well out of
the line of sight of other patrons, however, is not permitted
under CIPA, which requires the use of a technology protection
measure on every computer in the library. See CIPA Sec.
1721(b)(6)(C) (codified at 47 U.S.C. Sec. 254(h)(6)(C)), CIPA Sec. 1712
(codified at 20 U.S.C. Sec. 9134(f)(1)(A)) (requiring a public
library receiving E-rate discounts or LSTA grants to certify that
it "has in place a policy of Internet safety that includes the
operation of a technology protection measure with respect to any
of its computers with Internet access . . . ." (emphasis added));
In re Federal-State Joint Board on Universal Service: Children's
Internet Protection Act, CC Docket No. 96-45, Report and Order,
FCC 01-120, 30 (Apr. 5, 2001) ("CIPA makes no distinction
between computers used only by staff and those accessible to the
public.").
Alternatively, libraries can use privacy screens or recessed
monitors to prevent patrons from unwillingly being exposed to
material viewed by other patrons. We acknowledge that privacy
screens and recessed monitors suffer from imperfections as
alternatives to filtering. Both impose costs on the library,
particularly recessed monitors, which, according to the
government's library witnesses, are expensive. Moreover, some
libraries have experienced problems with patrons attempting to
remove the privacy screens. Privacy screens and recessed
monitors also make it difficult for more than one person to work
at the same terminal.
These problems, however, are not insurmountable. While
there is no doubt that privacy screens and recessed terminals
impose additional costs on libraries, the government has failed
to show that the cost of privacy screens or recessed terminals is
substantially greater than the cost of filtering software and the
resources needed to maintain such software. Nor has the
government shown that the cost of these alternatives is so high
as to make their use prohibitive. With respect to the problem of
patrons removing privacy screens, we find, based on the
successful use of privacy screens by the Fort Vancouver Regional
Library and the Multnomah County Public Library, that it is
possible for public libraries to prevent patrons from removing
the screens. Although privacy screens may make it difficult for
patrons to work at the same terminal side by side with other
patrons or with library staff, a library could provide filtered
access at terminals that lack privacy screens, when patrons wish
to use a terminal with others. Alternatively, a library can
reserve terminals outside of patrons' sight lines for groups of
patrons who wish unfiltered access.
We therefore conclude that the government has failed to show
that the less restrictive alternatives discussed above are
ineffective at furthering the government's interest either in
preventing patrons from using library computers to access visual
depictions that are obscene, child pornography, or in the case of
minors, harmful to minors, or in preventing library patrons from
being unwillingly exposed to patently offensive, sexually
explicit speech.
4. Do CIPA's Disabling Provisions Cure the Defect?
The Government argues that even if the use of software
filters mandated by CIPA blocks a substantial amount of speech
whose suppression serves no legitimate state interest, and
therefore fails strict scrutiny's narrow tailoring requirement,
CIPA's disabling provisions cure any lack of narrow tailoring
inherent in filtering technology. The disabling provision
applicable to libraries receiving LSTA grants states that "[a]n
administrator, supervisor, or other authority may disable a
technology protection measure . . . to enable access for bona
fide research or other lawful purposes." CIPA Sec. 1712(a)(2)
(codified at 20 U.S.C. Sec. 9134(f)(3)). CIPA's disabling provision
with respect to libraries receiving E-rate discounts similarly
states that "[a]n administrator, supervisor, or other person
authorized by the certifying authority . . . may disable the
technology protection measure concerned, during use by an adult,
to enable access for bona fide research or other lawful purpose."
CIPA Sec. 1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(D)).
To determine whether the disabling provisions cure CIPA's
lack of narrow tailoring, we must first determine, as a matter of
statutory construction, under what circumstances the disabling
provisions permit libraries to disable the software filters.
It is unclear to us whether CIPA's disabling provisions permit
libraries to disable the filters any time a patron wishes to
access speech that is neither obscenity, child pornography, or in
the case of a minor patron, material that is harmful to minors.
Whether CIPA permits disabling in such instances depends on the
meaning of the provisions' reference to "bona fide research or
other lawful purpose." On the one hand, the language "to enable
access for bona fide research or other lawful purpose" could be
interpreted to mean "to enable access to all constitutionally
protected material." As a textual matter, this reading of the
disabling provisions is plausible. If a patron seeks access to
speech that is constitutionally protected, then it is reasonable
to conclude that the patron has a "lawful purpose," since the
dissemination and receipt of constitutionally protected speech
cannot be made unlawful.
Moreover, since a narrower construction of the disabling
provision creates more constitutional problems than a
construction of the disabling provisions that permits access to
all constitutionally protected speech, the broader interpretation
is preferable. "[I]f an otherwise acceptable construction of a
statute would raise serious constitutional problems, and where an
alternative interpretation of the statute is fairly possible, we
are obligated to construe the statute to avoid such problems."
INS v. St. Cyr, 121 S. Ct. 2271, 2279 (2001) (internal quotation
marks and citations omitted). On the other hand, interpreting
CIPA's disabling provisions to permit disabling for access to all
constitutionally protected speech presents several problems.
First, if "other lawful purpose" means "for the purpose of
accessing constitutionally protected speech," then this reading
renders superfluous CIPA's reference to "bona fide research,"
which clearly contemplates some purpose beyond simply accessing
constitutionally protected speech. In general, "courts should
disfavor interpretations of statutes that render language
superfluous." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253
(1992).
Furthermore, Congress is clearly capable of explicitly
specifying categories of constitutionally unprotected speech, as
it did when it drafted CIPA to require funding recipients to use
technology protection measures that protect against visual
depictions that are "obscene," "child pornography," or, in the
case of minors, "harmful to minors." CIPA Sec. 1712(a) (codified at
20 U.S.C. Sec. 9134(f)(1)(A)(i)(I)-(III)); CIPA Sec. 1721(b) (codified
at 47 U.S.C. Sec. 254(h)(6)(B)(i)(I)-(III)). If Congress intended
CIPA's disabling provisions simply to permit libraries to disable
the filters to allow access to speech falling outside of these
categories, Congress could have drafted the disabling provisions
with greater precision, expressly permitting libraries to disable
the filters "to enable access for any material that is not
obscene, child pornography, or in the case of minors, harmful to
minors," rather than "to enable access for bona fide research or
other lawful purposes," which is the language that Congress
actually chose.
At bottom, however, we need not definitively construe CIPA's
disabling provisions, since it suffices in this case to assume
without deciding that the disabling provisions permit libraries
to allow a patron access to any speech that is constitutionally
protected with respect to that patron. Although this
interpretation raises fewer constitutional problems than a
narrower interpretation, this interpretation of the disabling
provisions nonetheless fails to cure CIPA's lack of narrow
tailoring. Even if the disabling provisions permit public
libraries to allow patrons to access speech that is
constitutionally protected yet erroneously blocked by the
software filters, the requirement that library patrons ask a
state actor's permission to access disfavored content violates
the First Amendment.
The Supreme Court has made clear that content-based
restrictions that require recipients to identify themselves
before being granted access to disfavored speech are subject to
no less scrutiny than outright bans on access to such speech. In
Lamont v. Postmaster General, 381 U.S. 301 (1965), for example,
the Court held that a federal statute requiring the Postmaster
General to halt delivery of communist propaganda unless the
addressee affirmatively requested the material violated the First
Amendment:
We rest on the narrow ground that the addressee in
order to receive his mail must request in writing that
it be delivered. This amounts in our judgment to an
unconstitutional abridgment of the addressee's First
Amendment rights. The addressee carries an affirmative
obligation which we do not think the Government may
impose on him. This requirement is almost certain to
have a deterrent effect, especially as respects those
who have sensitive positions.
Id. at 307.
Similarly, in Denver Area Educational Telecommunications
Consortium, Inc. v. FCC, 518 U.S. 727 (1996), the Court held
unconstitutional a federal law requiring cable operators to allow
access to patently offensive, sexually explicit programming only
to those subscribers who requested access to the programming in
advance and in writing. Id. at 732-33. As in Lamont, the Court
in Denver reasoned that this content-based restriction on
recipients' access to speech would have an impermissible chilling
effect: "[T]he written notice requirement will . . . restrict
viewing by subscribers who fear for their reputations should the
operator, advertently or inadvertently, disclose the list of
those who wish to watch the 'patently offensive' channel." Id.
at 754; see also Fabulous Assocs., Inc. v. Pa. Pub. Util. Comm'n,
896 F.2d 780, 785 (3d Cir. 1990) (considering the
constitutionality of a state law requiring telephone users who
wish to listen to sexually explicit telephone messages to apply
for an access code to receive such messages, and invalidating the
law on the ground that "[a]n identification requirement exerts an
inhibitory effect").
We believe that CIPA's disabling provisions suffer from the
same flaws as the restrictions on speech in Lamont, Denver, and
Fabulous Associates. By requiring library patrons affirmatively
to request permission to access certain speech singled out on the
basis of its content, CIPA will deter patrons from requesting
that a library disable filters to allow the patron to access
speech that is constitutionally protected, yet sensitive in
nature. As we explain above, we find that library patrons will
be reluctant and hence unlikely to ask permission to access, for
example, erroneously blocked Web sites containing information
about sexually transmitted diseases, sexual identity, certain
medical conditions, and a variety of other topics. As discussed
in our findings of fact, software filters block access to a wide
range of constitutionally protected speech, including Web sites
containing information that individuals are likely to wish to
access anonymously.
That library patrons will be deterred from asking permission
to access Web sites containing certain kinds of content is
evident as a matter of common sense as well as amply borne out by
the trial record. Plaintiff Emmalyn Rood, who used the Internet
at a public library to research information relating to her
sexual identity, testified that she would have been unwilling as
a young teen to ask a librarian to disable filtering software so
that she could view materials concerning gay and lesbian
issues. Similarly, plaintiff Mark Brown stated that he would
have been too embarrassed to ask a librarian to disable filtering
software if it had impeded his ability to research surgery
options for his mother when she was treated for breast cancer.
As explained in our findings of fact, see supra at Subsection
II.D.2.b, the reluctance of patrons to request permission to
access Web sites that were erroneously blocked is further
established by the low number of patron unblocking requests,
relative to the number of erroneously blocked Web sites, in those
public libraries that use software filters and permit patrons to
request access to incorrectly blocked Web sites. Cf. Fabulous
Assocs., 896 F.2d at 786 ("On the record before us, there is more
than enough evidence to support the district court's finding that
access codes will chill the exercise of some users' right to hear
protected communications.").
To be sure, the government demonstrated that it is possible
for libraries to permit patrons to request anonymously that a
particular Web site be unblocked. In particular, the Tacoma
Public Library has configured its computers to present patrons
with the option, each time the software filter blocks their
access to a Web page, of sending an anonymous email to library
staff requesting that the page be unblocked. Moreover, a library
staff member periodically scans logs of URLs blocked by the
filters, in an effort to identify erroneously blocked sites,
which the library will subsequently unblock. Although a public
library's ability to permit anonymous unblocking requests
addresses the deterrent effect of requiring patrons to identify
themselves before gaining access to a particular Web site, we
believe that it fails adequately to address the overblocking
problem.
In particular, even allowing anonymous requests for
unblocking burdens patrons' access to speech, since such requests
cannot immediately be acted on. Although the Tacoma Public
Library, for example, attempts to review requests for unblocking
within 24 hours, requests sometimes are not reviewed for several
days. And delays are inevitable in libraries with branches that
lack the staff necessary immediately to review patron unblocking
requests. Because many Internet users "surf" the Web, visiting
hundreds of Web sites in a single session and spending only a
short period of time viewing many of the sites, the requirement
that a patron take the time to affirmatively request access to a
blocked Web site and then wait several days until the site is
unblocked will, as a practical matter, impose a significant
burden on library patrons' use of the Internet. Indeed, a
patron's time spent requesting access to an erroneously blocked
Web site and checking to determine whether access was eventually
granted is likely to exceed the amount of time the patron would
have actually spent viewing the site, had the site not been
erroneously blocked. This delay is especially burdensome in view
of many libraries' practice of limiting their patrons to a half
hour or an hour of Internet use per day, given the scarcity of
terminal time in relation to patron demand.
The burden of requiring library patrons to ask permission to
view Web sites whose content is disfavored resembles the burden
that the Supreme Court found unacceptable in Denver, which
invalidated a federal law requiring cable systems operators to
block subscribers' access to channels containing sexually
explicit programming, unless subscribers requested unblocking in
advance. The Court reasoned that "[t]hese restrictions will
prevent programmers from broadcasting to viewers who select
programs day by day (or, through 'surfing,' minute by minute) . .
. ." Denver, 518 U.S. at 754. Similarly, in Fabulous
Associates, the Third Circuit explained that a law preventing
adults from listening to sexually explicit phone messages unless
they applied in advance for access to such messages would burden
adults' receipt of constitutionally protected speech, given
consumers' tendency to purchase such speech on impulse. See
Fabulous Assocs., 896 F.2d at 785 (noting that officers of two
companies that sell access to sexually explicit recorded phone
messages "testified that it is usually 'impulse callers' who
utilize these types of services, and that people will not call if
they must apply for an access code").
In sum, in many cases, as we have noted above, library
patrons who have been wrongly denied access to a Web site will
decline to ask the library to disable the filters so that the
patron can access the Web site. Moreover, even if patrons
requested unblocking every time a site is erroneously blocked,
and even if library staff granted every such request, a public
library's use of blocking software would still impermissibly
burden patrons' access to speech based on its content. The First
Amendment jurisprudence of the Supreme Court and the Third
Circuit makes clear that laws imposing content-based burdens on
access to speech are no less offensive to the First Amendment
than laws imposing content-based prohibitions on speech:
It is of no moment that the statute does not impose a
complete prohibition. The distinction between laws
burdening and laws banning speech is but a matter of
degree. The Government's content-based burdens must
satisfy the same rigorous scrutiny as its content-based
bans. . . . When the purpose and design of a statute
is to regulate speech by reason of its content, special
consideration or latitude is not afforded to the
Government merely because the law can somehow be
described as a burden rather than outright suppression.
United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 812,
826 (2000) (invalidating a federal law requiring cable television
operators to limit the transmission of sexually explicit
programming to the hours between 10:00 p.m. and 6:00 a.m.); see
also Fabulous Assocs., 896 F.2d at 785 ("[H]ere . . . there is no
outright prohibition of indecent communication. However, the
First Amendment protects against government inhibition as well as
prohibition.") (internal quotation marks and citation omitted).
Even if CIPA's disabling provisions could be perfectly
implemented by library staff every time patrons request access to
an erroneously blocked Web site, we hold that the content-based
burden that the library's use of software filters places on
patrons' access to speech suffers from the same constitutional
deficiencies as a complete ban on patrons' access to speech that
was erroneously blocked by filters, since patrons will often be
deterred from asking the library to unblock a site and patron
requests cannot be immediately reviewed. We therefore hold that
CIPA's disabling provisions fail to cure CIPA's lack of narrow
tailoring.
5. Conclusion; Severability
Based upon the foregoing discussion, we hold that a public
library's content-based restriction on patrons' access to speech
on the Internet is subject to strict scrutiny. Every item in a
library's print collection has been selected because library
staff, or a party to whom staff delegates the decision, deems the
content to be particularly valuable. In contrast, the Internet,
as a forum, is open to any member of the public to speak, and
hence, even when a library provides filtered Internet access, it
creates a public forum in which the vast majority of the speech
has been reviewed by neither librarians nor filtering companies.
Under public forum doctrine, where the state creates such a
forum open to any member of the public to speak on an unlimited
number of subjects, the state's decision selectively to exclude
certain speech on the basis of its content, is subject to strict
scrutiny, since such exclusions risk distorting the marketplace
of ideas that the state has created.
Application of strict scrutiny to public libraries' content-
based restrictions on their patrons' access to the Internet finds
further support in the analogy to traditional public fora, such
as sidewalks, parks, and squares, in which content-based
restrictions on speech are always subject to strict scrutiny.
Like these traditional public fora, Internet access in public
libraries uniquely promotes First Amendment values, by offering
low barriers to entry to speakers and listeners. The content of
speech on the Internet is as diverse as human thought, and the
extent to which the Internet promotes First Amendment values is
evident from the sheer breadth of speech that this new medium
enables.
To survive strict scrutiny, a public library's use of
filtering software must be narrowly tailored to further a
compelling state interest, and there must be no less restrictive
alternative that could effectively further that interest. We
find that, given the crudeness of filtering technology, any
technology protection measure mandated by CIPA will necessarily
block access to a substantial amount of speech whose suppression
serves no legitimate government interest. This lack of narrow
tailoring cannot be cured by CIPA's disabling provisions, because
patrons will often be deterred from asking the library's
permission to access an erroneously blocked Web page, and
anonymous requests for unblocking cannot be acted on without
delaying the patron's access to the blocked Web page, thereby
impermissibly burdening access to speech on the basis of its
content.
Moreover, less restrictive alternatives exist to further a
public library's legitimate interests in preventing its computers
from being used to access obscenity, child pornography, or in the
case of minors, material harmful to minors, and in preventing
patrons from being unwillingly exposed to patently offensive,
sexually explicit speech. Libraries may use a variety of means
to monitor their patrons' use of the Internet and impose
sanctions on patrons who violate the library's Internet use
policy. To protect minors from material harmful to minors,
libraries could grant minors unfiltered access only if
accompanied by a parent, or upon parental consent, or could
require minors to use unfiltered terminals in view of library
staff. To prevent patrons from being unwillingly exposed to
offensive, sexually explicit content, libraries can offer patrons
the option of using blocking software, can place unfiltered
terminals outside of patrons' sight lines, and can use privacy
screens and recessed monitors. While none of these less
restrictive alternatives are perfect, the government has failed
to show that they are significantly less effective than filtering
software, which itself fails to block access to large amounts of
speech that fall within the categories sought to be blocked.
In view of the severe limitations of filtering technology
and the existence of these less restrictive alternatives, we
conclude that it is not possible for a public library to comply
with CIPA without blocking a very substantial amount of
constitutionally protected speech, in violation of the First
Amendment. Because this conclusion derives from the inherent
limits of the filtering technology mandated by CIPA, it holds for
any library that complies with CIPA's conditions. Hence, even
under the stricter standard of facial invalidity proposed by the
government, which would require us to uphold CIPA if only a
single library can comply with CIPA's conditions without
violating the First Amendment, we conclude that CIPA is facially
invalid, since it will induce public libraries, as state actors,
to violate the First Amendment. Because we hold that CIPA is
invalid on these grounds, we need not reach the plaintiffs'
alternative theories that CIPA is invalid as a prior restraint on
speech and is unconstitutionally vague. Nor need we decide
whether CIPA is invalid because it requires public libraries, as
a condition on the receipt of federal funds, to relinquish their
own First Amendment rights to provide the public with unfiltered
Internet access, a theory that we nonetheless feel constrained to
discuss (at length) in the margin.