Amendment: The New Frontier, 63 U. Cin. L. Rev. 1103, 1110-15
(1995).
In both of these cases, the taxation scheme at issue
effectively subsidized a vast range of publications, and singled
out for penalty only a handful of speakers. See Arkansas
Writers' Project, 460 U.S. at 228-29 (noting that "selective
taxation of the press . . . [by] targeting individual members
of the press poses a particular danger of abuse by the State"
and explaining that "this case involves a more disturbing use of
selective taxation than Minneapolis Star, because the basis on
which Arkansas differentiates between magazines is particularly
repugnant to First Amendment principles: a magazine's tax status
depends entirely on its content"); Minneapolis Star, 460 U.S. at
591 ("Minnesota's ink and paper tax violates the First Amendment
not only because it singles out the press, but also because it
targets a small group of newspapers."); see also Turner Broad.
Sys., Inc. v. FCC, 512 U.S. 622, 660 (1994) ("The taxes
invalidated in Minneapolis Star and Arkansas Writers' Project . .
. targeted a small number of speakers, and thus threatened to
distort the market for ideas.") (internal quotation marks and
citation omitted).
[P]atrons at a library do not have the right to
make editorial decisions regarding the availability of
certain material. It is the exclusive authority of the
library to make affirmative decisions regarding what
books, magazines, or other material is placed on
library shelves, or otherwise made available to
patrons. Libraries impose many restrictions on the use
of their systems which demonstrate that the content of
the library's offerings are not determined by the
general public.
S. Rep. No. 106-141, at 8-9 (1999).
In distinguishing restrictions on public libraries' print
collections from restrictions on the provision of Internet
access, we do not rely on the rationale adopted in Mainstream
Loudoun v. Board of Trustees of the Loudoun County Library, 2 F.
Supp. 2d 783 (E.D. Va. 1998). The Loudoun Court reasoned that a
library's decision to block certain Web sites fundamentally
differs from its decision to carry certain books but not others,
in that unlike the money and shelf space consumed by the
library's provision of print materials, "no appreciable
expenditure of library time or resources is required to make a
particular Internet publication available" once the library has
acquired Internet access. Id. at 793-94.
We disagree. Nearly every librarian who testified at trial
stated that patrons' demand for Internet access exceeds the
library's supply of Internet terminals. Under such
circumstances, every time library patrons visit a Web site, they
deny other patrons waiting to use the terminal access to other
Web sites. Just as the scarcity of a library's budget and shelf
space constrains a library's ability to provide its patrons with
unrestricted access to print materials, the scarcity of time at
Internet terminals constrains libraries' ability to provide
patrons with unrestricted Internet access:
The same budget concerns constraining the number of
books that libraries can offer also limits the number
of terminals, Internet accounts, and speed of access
links that can be purchased, and thus the number of Web
pages that patrons can view. This is clear to anyone
who has been denied access to a Website because no
terminal was unoccupied.
Mark S. Nadel, The First Amendment's Limitations on the Use of
Internet Filtering in Public and School Libraries: What Content
Can Libraries Exclude?, 78 Tex. L. Rev. 1117, 1128 (2000).
We have found that approximately 14.3 million Americans
access the Internet at a public library, and Internet access at
public libraries is more often used by those with lower incomes
than those with higher incomes. We found that about 20.3% of
Internet users with household family income of less than $15,000
per year use public libraries for Internet access, and
approximately 70% of libraries serving communities with poverty
levels in excess of 40% receive E-rate discounts. The widespread
availability of Internet access in public libraries is due, in
part, to the availability of public funding, including state and
local funding and the federal funding programs regulated by CIPA.
We acknowledge that traditional public fora have
characteristics that promote First Amendment values in ways that
the provision of Internet access in public libraries does not.
For example, a significant virtue of traditional public fora is
their facilitation of face-to-face communication. "In a face-to-
face encounter there is a greater opportunity for the exchange of
ideas and the propagation of views . . . ." Cornelius, 473 U.S.
at 798. Face-to-face exchanges also permit speakers to confront
listeners who would otherwise not actively seek out the
information that the speaker has to offer. In contrast, the
Internet operates largely by providing individuals with only that
information that they actively seek out. Although the Internet
does not permit face-to-face communication in the same way that
traditional public fora do, the Internet, as a medium of
expression, is significantly more interactive than the broadcast
media and the press. "[T]he Web makes it possible to establish
two-way linkages with potential sympathizers. Unlike the
unidirectional nature of most mass media, websites, bulletin
boards, chatrooms, and email are potentially interactive." Seth
F. Kreimer, Technologies of Protest: Insurgent Social Movements
and the First Amendment in the Era of the Internet, 150 U. Pa. L.
Rev. 119, 130 (2001).
We acknowledge that the Internet's architecture is a
human creation, and is therefore subject to change. The
foregoing analysis of the unique speech-enhancing qualities of
the Internet is limited to the Internet as currently constructed.
Indeed, the characteristics of the Internet that we believe
render it uniquely suited to promote First Amendment values may
change as the Internet's architecture evolves. See Lawrence
Lessig, Reading the Constitution in Cyberspace, 45 Emory L.J.
869, 888 (1996) ("Cyberspace has no permanent nature, save the
nature of a place of unlimited plasticity. We don't find
cyberspace, we build it."); see also Lawrence Lessig, The Death
of Cyberspace, 57 Wash. & Lee L. Rev. 337 (2000).
For First Amendment purposes, obscenity is "limited to
works which, taken as a whole, appeal to the prurient interest in
sex, which portray sexual conduct in a patently offensive way,
and which, taken as a whole, do not have serious literary,
artistic, political, or scientific value." Miller v. California,
413 U.S. 15, 24 (1973).
The Supreme Court in Reno explained:
The District Court found that at the time of trial
existing technology did not include any effective
method for a sender to prevent minors from obtaining
access to its communications on the Internet without
also denying access to adults. The Court found no
effective way to determine the age of a user who is
accessing material through e-mail, mail exploders,
newsgroups, or chat rooms. As a practical matter, the
Court also found that it would be prohibitively
expensive for noncommercial as well as some
commercial speakers who have Web sites to verify that
their users are adults. These limitations must
inevitably curtail a significant amount of adult
communication on the Internet.
Reno, 521 U.S. at 876-77 (citation omitted).
To the extent that filtering software is effective in
identifying URLs of Web pages containing obscenity or child
pornography, libraries may use filtering software as a tool for
identifying URLs in their Internet use logs that fall within
these categories, without requiring patrons to use filtering
software. As the study of Benjamin Edelman, an expert witness
for the plaintiffs, demonstrates, it is possible to develop
software that automatically tests a list of URLs, such as the
list of URLs in a public library's Internet use logs, to
determine whether any of those URLs would be blocked by a
particular software filter as falling within a particular
category. Alternatively, library staff can review the Internet
use logs by hand, skimming the list of URLs for those that are
likely to correspond to Web pages containing obscenity or child
pornography, as is the practice of Tacoma's David Biek, who
testified as a government witness. Under either method, public
libraries can assure patrons of their privacy by tracing a given
URL to a particular patron only after determining that the URL
corresponds to a Web site whose content is illegal.
We need not decide whether these less restrictive
alternatives would themselves be constitutional. See Fabulous
Assocs., Inc. v. Pa. Pub. Util. Comm'n, 896 F.2d 780, 787 n.6 (3d
Cir. 1990) ("We intimate no opinion on the constitutionality of
[a less restrictive alternative to the challenged law] . . .,
inasmuch as we consider merely [its] comparative restrictiveness
. . . .").
Whereas the disabling provision applicable to libraries
that receive LSTA grants permits disabling for both adults and
minors, the disabling provision applicable to libraries that
receive E-rate discounts permits disabling only during adult use.
Thus, the disabling provision applicable to libraries receiving
E-rate discounts cannot cure the constitutional infirmity of
CIPA's requirement that libraries receiving E-rate discounts use
software filters when their Internet terminals are in use by
minors.
Software filters sometimes incorrectly block access to,
inter alia, Web sites dealing with issues relating to sexual
identity. For example, the "Gay and Lesbian Chamber of Southern
Nevada," http://www.lambdalv.com, "a forum for the business
community to develop relationships within the Las Vegas lesbian,
gay transsexual, and bisexual community" was blocked by N2H2 as
"Adults Only, Pornography." The home page of the Lesbian and Gay
Havurah of the Long Beach, California Jewish Community Center,
http://www.compupix.com/gay/havurah.htm, was blocked by N2H2 as
"Adults Only, Pornography," by Smartfilter as "Sex," and by
Websense as "Sex."
Among the types of Web sites that filters erroneously
block are Web sites dealing with health issues, such as the Web
site of the Willis-Knighton Cancer Center, a Shreveport,
Louisiana cancer treatment facility, http://cancerftr.wkmc.com,
which was blocked by Websense under the "Sex" category.
Although in light of our disposition of the plaintiffs'
Dole claim, we do not rule upon plaintiffs' contention that
CIPA's conditioning of funds on the installation of filtering
software violates the doctrine of unconstitutional conditions, we
are mindful of the need to frame the disputed legal issues and to
develop a full factual record for the certain appeal to the
Supreme Court. Cf. Ashcroft v. ACLU, 2002 U.S. LEXIS 3421 (May
13, 2002) (remanding the case to the Court of Appeals to review
the legal and factual bases on which the District Court granted
plaintiffs' motion for a preliminary injunction after vacating
its opinion that relied on a different ground from the ones used
by the District Court). Although we do not decide the
plaintiffs' unconstitutional conditions claim, we think that our
findings of fact on public libraries, their use of the Internet,
and the technological limitations of Internet filtering software,
see supra Subsections II.D-E, and our framing of the legal issue
here, would allow the Supreme Court to decide the issue if it
deems it necessary to resolve this case.
The doctrine of unconstitutional conditions "holds that the
government 'may not deny a benefit to a person on a basis that
infringes his constitutionally protected . . . freedom of speech'
even if he has no entitlement to that benefit." Bd. of County
Comm'rs v. Umbehr, 518 U.S. 668, 674 (1996) (quoting Perry v.
Sindermann, 408 U.S. 593, 597 (1972)). In this case, the
plaintiffs argue that CIPA imposes an unconstitutional condition
on libraries who receive E-rate and LSTA subsidies by requiring
them, as a condition on their receipt of federal funds, to
surrender their First Amendment right to provide the public with
access to constitutionally protected speech. Under this theory,
even if it does not violate the First Amendment for a public
library to use filtering software, it nonetheless violates the
First Amendment for the federal government to require public
libraries to use filters as a condition of the receipt of federal
funds.
The government contends that this case does not fall under
the unconstitutional conditions framework because: (1) as state
actors, the recipients of the funds (the public libraries) are
not protected by the First Amendment, and therefore are not being
asked to relinquish any constitutionally protected rights; and
(2) although library patrons are undoubtedly protected by the
First Amendment, they are not the funding recipients in this
case, and libraries may not rely on their patrons' rights in
order to state an unconstitutional conditions claim.
It is an open question in this Circuit whether Congress may
violate the First Amendment by restricting the speech of public
entities, such as municipalities or public libraries. The only
U.S. Supreme Court opinion to weigh in on the issue is a
concurrence by Justice Stewart, joined by Chief Justice Burger
and Justice Rehnquist, in which he opined that municipalities and
other arms of the state are not protected by the First Amendment
from governmental interference with their expression. See Colum.
Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 139
(1973) (Stewart, J., concurring) ("The First Amendment protects
the press from governmental interference; it confers no analogous
protection on the Government."); see also id. at 139 n.7 ("The
purpose of the First Amendment is to protect private expression
and nothing in the guarantee precludes the government from
controlling its own expression or that of its agents.") (quoting
Thomas Emerson, The System of Freedom of Expression 700 (1970)
(internal quotation marks omitted)). The Court has subsequently
made it clear, however, that it considers it to be an open
question whether municipalities acting in their capacity as
employers have First Amendment rights, suggesting that the
question whether public entities are ever protected by the First
Amendment also remains open. See City of Madison Joint Sch.
Dist. No. 8 v. Wisc. Employment Relations Comm'n, 429 U.S. 167,
175 n.7 (1976) ("We need not decide whether a municipal
corporation as an employer has First Amendment rights to hear the
views of its citizens and employees.").
Several courts of appeals have cited Justice Stewart's
concurrence in Columbia Broadcasting Systems and have, with
little discussion or analysis, concluded that a "government . . .
speaker is not itself protected by the first amendment." Warner
Cable Communications, Inc. v. City of Niceville, 911 F.2d 634,
638 (11th Cir. 1990); see also NAACP v. Hunt, 891 F.2d 1555, 1565
(11th Cir. 1990) ("[T]he First Amendment protects citizens'
speech only from government regulation; government speech itself
is not protected by the First Amendment."); Student Gov't Ass'n
v. Bd. of Trustees of the Univ. of Mass., 868 F.2d 473, 481 (1st
Cir. 1989) (concluding that the legal services organization run
by a state university, "as a state entity, itself has no First
Amendment rights"); Estiverne v. La. State Bar Ass'n, 863 F.2d
371, 379 (5th Cir. 1989) (noting that "the first amendment does
not protect government speech").
We do not think that the question whether public libraries
are protected by the First Amendment can be resolved as simply as
these cases suggest. This difficulty is demonstrated by the
reasoning of the Seventh Circuit in a case in which that court
considered whether municipalities are protected by the First
Amendment and noted that it is an open question that could
plausibly be answered in the affirmative, yet declined to decide
it:
Only a few cases address the question whether
municipalities or other state subdivisions or agencies
have any First Amendment rights. . . . The question is
an open one in this circuit, and we do not consider the
answer completely free from doubt. For many purposes,
for example diversity jurisdiction and Fourteenth
Amendment liability, municipalities are treated by the
law as if they were persons. Monell v. Department of
Social Services, 436 U.S. 658, 690 (1978); Moor v.
County of Alameda, 411 U.S. 693, 717-18 (1973). There
is at least an argument that the marketplace of ideas
would be unduly curtailed if municipalities could not
freely express themselves on matters of public concern,
including the subsidization of housing and the
demographic makeup of the community.
To the extent, moreover, that a municipality is
the voice of its residentsis, indeed, a megaphone
amplifying voices that might not otherwise be audiblea
curtailment of its right to speak might be thought a
curtailment of the unquestioned First Amendment rights
of those residents. See Meir Dan-Cohen, "Freedoms of
Collective Speech: A Theory of Protected Communications
by Organizations, Communities, and the State," 79
Calif. L. Rev. 1229, 1261-63 (1991); cf. Student
Government Ass'n v. Board of Trustees, supra, 868 F.2d
at 482. Thus if federal law imposed a fine on
municipalities that passed resolutions condemning
abortion, one might suppose that a genuine First
Amendment issue would be presented. Against this
suggestion can be cited the many cases which hold that
municipalities lack standing to invoke the Fourteenth
Amendment against actions by the state. E.g., Coleman
v. Miller, 307 U.S. 433, 441 (1939); Williams v. Mayor
& City Council of Baltimore, 289 U.S. 36, 40 (1933);
City of East St. Louis v. Circuit Court for the
Twentieth Judicial Circuit, 986 F.2d 1142, 1144 (7th
Cir. 1993). But it is one thing to hold that a
municipality cannot interpose the Fourteenth Amendment
between itself and the state of which it is the
creature, Anderson v. City of Boston, 380 N.E.2d 628,
637-38 (Mass. 1978), appeal dismissed for want of a
substantial federal question, 439 U.S. 1060 (1979), and
another to hold that a municipality has no rights
against the federal government or another state.
Township of River Vale v. Town of Orangetown, 403 F.2d
684, 686 (2d Cir. 1968), distinguishes between these
two types of cases.
Creek v. Village of Westhaven, 80 F.3d 186, 192-93 (7th Cir.
1996).
We also note that there is no textual support in the First
Amendment for distinguishing between, for example, municipal
corporations, and private corporations, which the Court has
recognized have cognizable First Amendment rights. First Nat'l
Bank of Boston v. Bellotti, 435 U.S. 765, 775-76 (1978). Unlike
other provisions in the Bill of Rights, which the Supreme Court
has held to be "purely personal" and thus capable of being
invoked only by individuals, the First Amendment is not phrased
in terms of who holds the right, but rather what is protected.
Compare U.S. Const. amend V ("No person shall be held to answer .
. .") (emphasis added) with U.S. Const. amend I ("Congress shall
make no law . . . abridging the freedom of speech, or of the
press . . . ."); see also United States v. White, 322 U.S. 694,
698-701 (1944) (holding that the privilege against self-
incrimination applies only to natural persons).
The Supreme Court relied on this distinction (i.e., that the
First Amendment protects a class of speech rather than a class of
speakers) in a similar context in Bellotti. There, the Court
invalidated a Massachusetts statute that prohibited corporations
from spending money to influence ballot initiatives that did not
bear directly on their "property, business or assets." Id. at
768. In so holding, the Court rejected the argument that the
First Amendment protects only an individual's expression. The
Court wrote:
The Constitution often protects interests broader than
those of the party seeking their vindication. . . .
The proper question therefore is not whether
corporations "have" First Amendment rights and, if so,
whether they are coextensive with those of natural
persons. Instead, the question must be whether [the
government is] abridg[ing] expression that the First
Amendment was meant to protect.