would usually be required to determine whether CIPA is severable
from the remainder of the statutes governing LSTA and E-rate
funding. Neither party, however, has advanced the argument that
CIPA is not severable from the remainder the Library Services and
Technology Act and Communications Act of 1934 (the two statutes
governing LSTA and E-rate funding, respectively), and at all
events, we think that CIPA is severable.
"The inquiry into whether a statute is severable is
essentially an inquiry into legislative intent." Minn. v. Mille
Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999). "Unless
it is evident that the legislature would not have enacted those
provisions which are within its power, independently of that
which is not, the invalid part may be dropped if what is left is
fully operative as a law." Buckley v. Valeo, 424 U.S. 1, 108
(1976) (internal quotation marks and citation omitted). There is
no doubt that if we were to strike CIPA from the sections of the
United States Code where it is currently codified, the remaining
statutory sections, providing eligible public libraries with E-
rate discounts and LSTA grants, would be fully operative as law.
Indeed, the LSTA and E-rate programs existed prior to the
enactment of CIPA in substantially the same form as they would
exist were we to strike CIPA and leave the rest of the programs
intact.
The second question, whether Congress would in this case
have chosen to repeal the LSTA and E-rate subsidy programs
instead of continuing to fund them if it had known that CIPA's
limitations on these programs were constitutionally invalid, is
less clear. CIPA contains "separability" clauses that state that
if any of its additions to the statutes governing the LSTA and E-
rate programs are found to be unconstitutional, Congress intended
to effectuate as much of CIPA's amendments as possible. We
interpret these clauses to mean, for example, that if a court
were to find that CIPA's requirements are unconstitutional with
respect to adult patrons, but permissible with respect to minors,
that Congress intended to have the court effectuate only the
provisions with respect to minors. These separability clauses do
not speak to the situation before us, however, where we have
found that CIPA is facially unconstitutional in its entirety.
Nevertheless, the government has not pointed to anything in
the legislative history or elsewhere to suggest that Congress
intended to discontinue funding under the LSTA and E-rate
programs unless it could effectuate CIPA's restrictions on the
funding. And Congress's decision, prior to CIPA's enactment, to
subsidize Internet access through the LSTA and E-rate programs
without such restrictions, counsels that we reach the opposite
conclusion. At bottom, we think that it is unclear what
Congress's intent was on this point, and in the absence of such
information, we exercise a presumption in favor of severability.
Regan v. Time, Inc., 468 U.S. 641, 653 (1984) ("[T]he
presumption is in favor of severability."); cf. Velazquez v.
Legal Servs. Corp., 164 F.3d 757, 773 (2d Cir. 1999), aff'd 531
U.S. 533 (2001) (applying a presumption in favor of severability
in the face of uncertainty whether Congress intended to fund the
Legal Services Corporation even if a restriction on the funding
was to be declared invalid).
For the foregoing reasons, we will enter a final judgment
declaring Sections 1712(a)(2) and 1721(b) of the Children's
Internet Protection Act, codified at 20 U.S.C. Sec. 9134(f) and 47
U.S.C. Sec. 254(h)(6), respectively, to be facially invalid under
the First Amendment and permanently enjoining the defendants from
enforcing those provisions.
___________________________
Edward R. Becker, Chief Circuit
Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AMERICAN LIBRARY ASSOCIATION, : CIVIL ACTION
INC., et al. :
:
v. :
:
UNITED STATES, et al. : NO. 01-1303
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
MULTNOMAH COUNTY PUBLIC : CIVIL ACTION
LIBRARY, et al. :
:
v. :
:
UNITED STATES OF AMERICA, et al. : NO. 01-1322
ORDER
AND NOW, this day of May, 2002, based on the
foregoing findings of fact and conclusions of law, it is hereby
ORDERED that:
(1) judgment is entered in favor of the plaintiffs and
against the defendants, declaring that Sec.Sec. 1712(a)(2) and 1721(b)
of the Children's Internet Protection Act, 20 U.S.C. Sec. 9134(f)
and 47 U.S.C. Sec. 254(h)(6), are facially invalid under the First
Amendment to the United States Constitution; and
(2) the United States, Michael Powell, in his official
capacity as Chairman of the Federal Communications Commission,
the Federal Communications Commission, Beverly Sheppard, in her
official capacity as Acting Director of the Institute of Museum
and Library Services, and the Institute of Museum and Library
Services are permanently enjoined from withholding federal funds
from any public library for failure to comply with Sec.Sec. 1712(a)(2)
and 1721(b) of the Children's Internet Protection Act, 20 U.S.C.
Sec. 9134(f) and 47 U.S.C. Sec. 254(h)(6).
BY THE COURT:
__________________________________
Ch. Cir. J.
__________________________________
J.
__________________________________
J.
FOOTNOTES
Plaintiffs advance three other alternative, independent
grounds for holding CIPA facially invalid. First, they submit
that even if CIPA will not induce public libraries to violate the
First Amendment, CIPA nonetheless imposes an unconstitutional
condition on public libraries by requiring them to relinquish
their own First Amendment rights to provide unfiltered Internet
access as a condition on their receipt of federal funds. See
infra n.36. Second, plaintiffs contend that CIPA is facially
invalid because it effects an impermissible prior restraint on
speech by granting filtering companies and library staff
unfettered discretion to suppress speech before it has been
received by library patrons and before it has been subject to a
judicial determination that it is unprotected under the First
Amendment. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S.
546, 558 (1975). Finally, plaintiffs submit that CIPA is
unconstitutionally vague. See City of Chicago v. Morales, 527
U.S. 41 (1999).
CIPA defines "[m]inor" as "any individual who has not
attained the age of 17 years." CIPA Sec. 1721(c) (codified at 47
U.S.C. Sec. 254(h)(7)(D)). CIPA further provides that "[o]bscene"
has the meaning given in 18 U.S.C. Sec. 1460, and "child
pornography" has the meaning given in 18 U.S.C. Sec. 2256. CIPA Sec.
1721(c) (codified at 47 U.S.C. Sec. 254(h)(7)(E) & (F)). CIPA
defines material that is "harmful to minors" as:
any picture, image, graphic image file, or other visual
depiction that (i) taken as a whole and with respect
to minors, appeals to a prurient interest in nudity,
sex, or excretion; (ii) depicts, describes, or
represents, in a patently offensive way with respect to
what is suitable for minors, an actual or simulated
sexual act or sexual contact, actual or simulated
normal or perverted sexual acts, or a lewd exhibition
of the genitals; and (iii) taken as a whole, lacks
serious literary, artistic, political, or scientific
value as to minors.
CIPA Sec. 1721(c) (codified at 47 U.S.C. Sec. 254(h)(7)(G)).
CIPA prohibits federal interference in local determinations
regarding what Internet content is appropriate for minors:
A determination regarding what matter is appropriate
for minors shall be made by the school board, local
educational agency, library or other authority
responsible for making the determination. No agency or
instrumentality of the United States Government may
(A) establish criteria for making such determination;
(B) review the determination made by the certifying
[entity] . . . ; or (C) consider the criteria employed
by the certifying [entity] . . . in the administration
of subsection (h)(1)(B).
CIPA Sec. 1732 (codified at 47 U.S.C. Sec. 254(l)(2)).
The government challenges the standing of several of the
plaintiffs and the ripeness of their claims. These include all
of the Web site publishers and all of the individual library
patrons. Notwithstanding these objections, we are confident that
the "case or controversy" requirement of Article III, Sec. 2 of the
Constitution is met by the existence of the plaintiff libraries
that qualify for LSTA and E-rate funding and the library
associations whose members qualify for such funding. These
plaintiffs are faced with the impending choice of either
certifying compliance with CIPA by July 1, 2002, or foregoing
subsidies under the LSTA and E-rate programs, and therefore
clearly have standing to challenge the constitutionality of the
conditions to which they will be subject should they accept the
subsidies. We also note that the presence of the Web site
publishers and individual library patrons does not affect our
legal analysis or disposition of the case.
The OCLC database, a cooperative cataloging service
established to facilitate interlibrary loan requests, includes 40
million catalog records from approximately 48,000 libraries of
all types worldwide. Slightly more than 400 of the libraries in
the OCLC database are listed as carrying Playboy in their
collections, while only eight subscribe to Hustler.
Fort Vancouver Regional Library, for example, combines
the methods of strategically placing terminals in low traffic
areas and using privacy screens. A section headed
"Confidentiality and Privacy" on the library's home page states:
"in order to protect the privacy of the user and the interests of
other library patrons, the library will attempt to minimize
unintentional viewing of the Internet. This will be done by use
of privacy screens, and by judicious placement of the terminals
and other appropriate means."
Indeed, we granted leave for N2H2's counsel to intervene
in order to object to testimony that would potentially reveal
N2H2's trade secrets, which he did on several occasions.
Geoffrey Nunberg (Ph.D., Linguistics, C.U.N.Y. 1977) is a
researcher at the Center for the Study of Language and
Information at Stanford University and a Consulting Full
Professor of Linguistics at Stanford University. Until 2001, he
was also a principal scientist at the Xerox Palo Alto Research
Center. His research centers on automated classification
systems, with a focus on classifying documents on the Web with
respect to their linguistic properties. He has published his
research in numerous professional journals, including peer-
reviewed journals.
A "cookie" is "a small file or part of a file stored on a
World Wide Web user's computer, created and subsequently read by
a Web site server, and containing personal information (as a user
identification code, customized preferences, or a record of pages
visited)." Merriam-Webster's Collegiate Dictionary, available at
http://www.m-w.com/dictionary.htm.
Hunter drew three different "samples" for his test. The
first consisted of "50 randomly generated Web pages from the
Webcrawler search engine." The "second sample of 50 Web pages
was drawn from searches for the terms 'yahoo, warez, hotmail,
sex, and MP3,' using the AltaVista.com search engine." And the
"final sample of 100 Web sites was drawn from the sites of
organizations who filed amicus briefs in support of the ACLU's
challenges to the Community [sic] Decency Act (CDA) and COPA [the
Children's Online Protection Act], and from Internet portals,
political Web sites, feminist Web sites, hate speech sites,
gambling sites, religious sites, gay pride/homosexual sites,
alcohol, tobacco, and drug sites, pornography sites, new sites,
violent game sites, safe sex sites, and pro and anti-abortion
sites listed on the popular Web directory, Yahoo.com."
Lemmons testified that he compiled the list of sexually
explicit sites that should have been blocked by entering the
terms "free adult sex, anal sex, oral sex, fisting lesbians, gay
sex, interracial sex, big tits, blow job, shaved pussy, and
bondage" into the Google search engine and then "surfing" through
links from pages generated by the list of sites that the search
engine returned. Using this method, he compiled a list of 197
sites that he determined should be blocked according to the
filtering programs' category definitions. Lemmons also attempted
to compile a list of "sensitive" Web sites that, although they
should not have been blocked according to the filtering programs'
category definitions, might have been mistakenly blocked. In
order to do this, he used the same method of entering terms into
the Google search engine and surfing through the results. He
used the following terms to compile this list: "breast feeding,
bondages, fetishes, ebony, gay issues, women's health, lesbian,
homosexual, vagina, vaginal dryness, pain, anal cancer, teen
issues, safe sex, penis, pregnant, interracial, sex education,
penis enlargement, breast enlargement, . . . and shave."
If separate patrons attempted to reach the same Web
site, or one or more patrons attempted to access more than one
page on a single Web site, Finnell counted these attempts as a
single block. For example, the total number of blocked requests
for Web pages at Tacoma Library during the logged period was
2,812, but Finnell counted this as only 895 blocks of unique Web
sites. Of the 895 unique blocked sites, Finnell was unable to
access 59, yielding 836 unique blocked sites for his team to
review.
The confidence intervals that Finnell calculated
represent the range of percentages within which we can be 95%
confident that the actual rate of overblocking in that particular
library falls. We note that these confidence intervals assume
that the time period for which the study assessed the library's
internet logs constitutes a random and representative sample.
To illustrate the two different methods, consider a
random sample of 1010 web sites taken from a library's Internet
use log, 10 of which fall within the category that a filter is
intended to block (e.g., pornography), and suppose that the
filter incorrectly failed to block 2 of the 10 sites that it
should have blocked and did not block any sites that should not
have been blocked. The standard method of quantifying the rate
of underblocking would divide the number of sites in the sample
that the filter incorrectly failed to block by the number of
sites in the sample that the filter should have blocked, yielding
an underblocking rate in this example of 20%. Finnell's study,
however, calculated the underblocking rate by dividing the number
of sites that the filter incorrectly failed to block by the total
number of sites in the sample that were not blocked (whether
correctly or incorrectly) yielding an underblocking rate in this
example of only .2%.
According to Biek, the sample size that he used yielded a
95% confidence interval of plus or minus 3.11%.
Edelman is a Harvard University student and a systems
administrator and multimedia specialist at the Berkman Center for
Internet and Society at Harvard Law School. Despite Edelman's
young age, he has been doing consulting work on Internet-related
issues for nine years, since he was in junior high school.
The archiving process in some cases took up to 48 hours
from when the page was blocked.
In October 2001, Edelman published the results of his
initial testing on his Web site. In February and March 2002 he
repeated his testing of the 6,777 URLs originally found to be
blocked by at least one of the blocking products, in order to
determine whether and to what extent the blocking product vendors
had corrected the mistakes that he publicized. Of those URLs
blocked by N2H2 in the October 2001 testing, 55.10% remained
blocked when tested by Edelman in March 2002. Of those URLs
blocked by Websense in the October 2001 testing, 76.28% remained
blocked when tested by Edelman in February 2002. Of those URLs
blocked by SurfControl's Cyber Patrol product, only 7.16%
remained blocked, i.e., Cyber Patrol had unblocked almost 93% of
the Web pages originally blocked. Because the results posted to
his Web site were accessed by an employee of SurfControl (as
evidenced by Edelman's records of who was accessing his Web
site), we infer that Cyber Patrol had determined that 93% of all
6,777 pages, or 6,302 Web pages, were originally wrongly blocked
by the product.
Two other expert witnesses reviewed subsets of the list
of Web pages that Edelman compiled. Dr. Michael T. Ryan,
Director of the Rare Book and Manuscript Library and of the
Center for Electronic Text and Image at the University of
Pennsylvania, reviewed a list of 204 sites that Edelman forwarded
to him in order to determine their appropriateness and usefulness
in the library setting. Because the sites that Ryan reviewed
were not selected randomly (i.e., they were chosen by plaintiffs'
counsel), his study says little about the character of the set of
6,777 sites that Edelman compiled, or the total amount of
overblocking by the four filtering programs that Edelman used.
Anne Lipow, a practicing librarian for more than 30 years
and the director of a library consulting firm, also reviewed the
same list of 204 URLs from the set that Edelman had collected for
their appropriateness for a library's collection. She
categorized sites in four different levels according to their
appropriateness for a public library's collection. Again, because
these URLs were not selected randomly, Lipow's study is not
particularly relevant to the total set that Edelman compiled, or
to the total amount of overblocking by the four filtering
programs that Edelman used.
Although the methodology used to select the list of Web
pages that was forwarded to Ryan and Lipow is problematic, Ryan's
and Lipow's testimony established that many of the erroneously
blocked sites that Edelman identified would be useful and
appropriate sources of information for library patrons.
All of the reviewers that Janes recruited had some
relevant experience in library reference services or library
collection development. Janes divided the reviewers into two
groups, a group of 11 less experienced reviewers, and a group of
five more experienced reviewers. Janes assigned the less
experienced group to do a first-round review with the purpose of
identifying the most obviously overblocked sites. The more
experienced group was to review the remaining sites (i.e., those
that were not obviously overblocked) and to make final decisions
regarding these sites.
In the first round, each person evaluated two sets of around
80 sites, and each group was evaluated by two different people.
Each set of sites included the following instructions:
Look carefully at each of the Web sites on the list. Please make
a notation of any site that appears to meet any of the following
criteria:
a. Contains information similar to that already found
in libraries,
or
b. Contains information a librarian would want in the
library if s/he had unlimited funds to purchase
information and unlimited shelf space,
or
c. You would be willing to refer a patron (of any age)
to the site if the patron appeared at a reference desk
seeking information about the subject of the site. For
this last criterion, we recognize that you might not
refer a young child to a Calculus site just because it
would not be useful to that child, but you should
ignore that factor. Informational sites, such as a
Calculus site, should be noted. A site that is purely
erotica should not be noted.
Sites that received "Yes" votes from both reviewers were
determined to be of sufficient interest in a library context and
removed from further analysis. Sites receiving one or two "No"
votes would go to the next round. In the first round, 243 sites
received "Yes" votes from both reviewers, while 456 sites
received one or more "No" votes or could not be found. These 456
sites were sent forward to the second round of judging.
The instructions for the second-round reviewers were the
same as those given to the first-round reviewers, except that in
section c, the following sentence was added: "Sites that have a
commercial purpose should be included here if they might be of
use or interest to someone wishing to buy the product or service
or doing research on commercial behavior on the Internet, much as
most libraries include the Yellow Pages in their collections."
The second round of review produced the following results: 60
sites could not be found (due to broken links, 404 "not found"
errors, domain for sale messages, etc.), 231 sites were judged
"Yes," and 165 judged "No."
Although it was not proffered as evidence in this trial,
(and hence we do not rely on it to inform our findings), we note
that Youth, Pornography, and the Internet, a congressionally
commissioned study by the National Research Council, a division
of the National Academies of Science, see Pub. L. 105-314, Title
X, Sec. 901, comes to a conclusion similar to the one that we
reach regarding the effectiveness of Internet filters. The
commission concludes that:
All filtersthose of today and for the foreseeable
futuresuffer (and will suffer) from some degree of
overblocking (blocking content that should be allowed
through) and some degree of underblocking (passing
content that should not be allowed through). While the
extent of overblocking and underblocking will vary with
the product (and may improve over time), underblocking
and overblocking result from numerous sources,
including the variability in the perspectives that
humans bring to the task of judging content.
Youth, Pornography, and the Internet (Dick Thornburgh & Herbert
S. Lin, eds., 2002), available at
http://bob.nap.edu/html/youth_internet/.
Because we find that the plaintiff public libraries are
funded and controlled by state and local governments, they are
state actors, subject to the constraints of the First Amendment,
as incorporated by the Due Process Clause of the Fourteenth
Amendment.
The Supreme Court has recognized that the First Amendment
encompasses not only the right to speak, but also the right to
receive information. See Reno v. ACLU, 521 U.S. 844, 874 (1997)
(invalidating a statute because it "effectively suppresses a
large amount of speech that adults have a constitutional right to
receive and to address to one another"); Stanley v. Georgia, 394
U.S. 557, 564 (1969) ("[The] right to receive information and
ideas, regardless of their social worth . . . is fundamental to
our free society."); see also Bd. of Educ. v. Pico, 457 U.S. 853,
867-68 (1982) (plurality opinion) ("[T]he right to receive ideas
follows ineluctably from the sender's First Amendment right to
send them.").
Indeed, if the First Amendment subjected to strict
scrutiny the government's decision to dedicate a forum to speech
whose content the government judges to be particularly valuable,
many of our public institutions of culture would cease to exist
in their current form:
From here on out, the National Gallery in Washington,
D.C., for example, would be required to display the art
of all would-be artists on a first-come-first-served
basis and would not be able to exercise any content
control over its collection through evaluations of
quality. Such a conclusion, of course, strikes us as
absurd, but that is only because we feel that the
government should be free to establish public cultural
institutions guided by standards such as "quality."
. . .
While the First Amendment articulates a deep fear of
government intervention in the marketplace of ideas
(because of the risk of distortion), it also seems
prepared to permit state-sponsored and -supported
cultural institutions that exercise considerable
control over which art to fund, which pictures to hang,
and which courses to teach. That these choices
necessarily involve judgments about favored and
disfavored content judgments clearly prohibited in
the realm of censorship is indisputable.