entitled to assert First Amendment claims as speakers, noting
that "[t]he inherent worth of the speech in terms of its capacity
for informing the public does not depend upon the identity of its
source, whether corporation, association, union, or individual."
Id. at 777.
In view of the foregoing, the notion that public libraries
may assert First Amendment rights for the purpose of making an
unconstitutional conditions claim is clearly plausible, and may
well be correct. But even if it is not, we think it plausible
that they could rely on their patrons' rights, even though their
patrons are not the ones who are directly receiving the federal
funding. In similar cases, the Supreme Court has entertained
unconstitutional conditions claims both by the organizations that
receive federal funding and by their constituents. See Legal
Servs. Corp. v. Velazquez, 531 U.S. 533, 537 (2001) ("Lawyers
employed by New York City LSC grantees, together with private LSC
contributors, LSC indigent clients, and various state and local
public officials whose governments contribute to LSC grantees,
brought suit . . . to declare the restriction [on LSC lawyers'
ability advocate the amendment of or to challenge the
constitutionality of existing welfare law] . . . invalid."); Rust
v. Sullivan, 500 U.S. 173, 181 (1991) ("Petitioners are Title X
grantees and doctors who supervise Title X funds suing on behalf
of themselves and their patients. . . . Petitioners challenged
the regulations on the grounds that . . . they violate the First
and Fifth Amendment rights of Title X clients and the First
Amendment rights of Title X health providers."); FCC v. League of
Women Voters of Cal., 468 U.S. 364, 370 n.6 (1984) (reviewing a
First Amendment challenge to conditions on public broadcasters'
receipt of federal funds, in which the plaintiffs included not
only the owner of a public television station, but also viewers
of the station's programs, including the League of Women Voters,
and "Congressman Henry Waxman, . . . a regular listener and
viewer of public broadcasting").
The question whether CIPA's requirement that libraries use
filtering software constitutes an unconstitutional condition is
not an easy one. The Supreme Court has held that it violates the
First Amendment for the federal government to require public
broadcasting stations that receive federal funds not to
editorialize, see League of Women Voters, 468 U.S. at 366, 402;
for states to subsidize "newspaper and religious, professional,
trade, and sports journals," but not "general interest
magazines," Ark. Writers' Project, Inc. v. Ragland, 481 U.S. 221,
223 (1987); for a state university to subsidize student
publications only on the condition that they do not "primarily
promote[] or manifest[] a particular belief in or about a deity
or an ultimate reality," Rosenberger v. Rector & Visitors of
Univ. of Va., 515 U.S. 819, 823 (1995); and for the federal
government to prevent legal services providers who receive
federal funds from seeking to "amend or otherwise challenge
existing welfare law." Velazquez, 531 U.S. at 537. On the other
hand, the Supreme Court has held that it does not violate the
First Amendment for the federal government to require healthcare
providers who receive federal funds not to "encourage, promote or
advocate abortion as a method of family planning," Rust, 500 U.S.
at 180; for the federal government to subsidize charitable
organizations only if they do not engage in lobbying activity,
see Regan v. Taxation with Representation, 461 U.S. 540 (1983);
and for the National Endowment for the Arts, in awarding grants
on the basis of artistic excellence, to "take into consideration
general standards of decency and respect for the diverse beliefs
and values of the American Public." NEA v. Finley, 524 U.S. 569,
572 (1998).
In light of the facts that we discuss above regarding the
operation of public libraries, and the limits of Internet
filtering software, see supra Sections II.D-E, we believe that
the plaintiffs have a good argument that this case is more
analogous to League of Women Voters, Arkansas Writers' Project,
and Velazquez than it is to Rust, Finley and Taxation with
Representation. Like the law invalidated in League of Women
Voters, which targeted editorializing, and the law invalidated in
Arkansas Writers' Project, which targeted general interest
magazines but not "religious, professional, trade, and sports
journals," the law in this case places content-based restrictions
on public libraries' possible First Amendment right to provide
patrons with access to constitutionally protected material. See
Arkansas Writers' Project, 481 U.S. at 229 ("[T]he basis on which
Arkansas differentiates between magazines is particularly
repugnant to First Amendment principles: a magazine's tax status
depends entirely on its content. Above all else, the First
Amendment means that government has no power to restrict
expression because of its message, its ideas, its subject matter,
or its content.") (internal quotation marks and citations
omitted); League of Women Voters, 468 U.S. at 383 ("[T]he scope
of [the challenged statute's] ban is defined solely on the basis
of the content of the suppressed speech."). See generally
Rosenberger, 515 U.S. at 828 ("It is axiomatic that the
government may not regulate speech based on its substantive
content or the message it conveys."). Because of the
technological limitations of filtering software described in such
detail above, Congress's requirement that public libraries use
such software is in effect a requirement that public libraries
block a substantial amount of constitutionally protected speech
on the basis of its content.
Plaintiffs' argument that the federal government may not
require public libraries who receive federal funds to restrict
the availability of constitutionally protected Web sites solely
on the basis of the sites' content finds further support in the
role that public libraries have traditionally served in
maintaining First Amendment values. As evidenced by the many
public libraries that have endorsed the Freedom to Read Statement
and the Library Bill of Rights, see supra Subsection II.D.1,
public libraries seemingly have a duty to challenge prevailing
orthodoxy and make available to the public controversial, yet
constitutionally protected material, even if it means drawing the
ire of the community. See Bd. of Educ. v. Pico, 457 U.S. 853,
915 (1982) (Rehnquist, J., dissenting) (noting that "public
libraries" are "designed for freewheeling inquiry").
By interfering with public libraries' discretion to make
available to patrons as wide a range of constitutionally
protected speech as possible, the federal government is arguably
distorting the usual functioning of public libraries as places of
freewheeling inquiry. The Velazquez Court, in invalidating the
federal government's restrictions on the ability of federally
funded legal services providers to challenge the
constitutionality of welfare laws, relied on the manner in which
the restrictions that the federal government placed on legal
services' attorneys' speech distorted the usual functioning of
the judicial system:
[T]he Government seeks to use an existing medium of
expression and to control it, in a class of cases, in
ways which distort its usual functioning. . . . The
First Amendment forb[ids] the Government from using the
forum in an unconventional way to suppress speech
inherent in the nature of the medium.
531 U.S. at 543. By the same token, CIPA arguably distorts the
usual functioning of public libraries both by requiring libraries
to: (1) deny patrons access to constitutionally protected speech
that libraries would otherwise provide to patrons; and (2)
delegate decision making to private software developers who
closely guard their selection criteria as trade secrets and who
do not purport to make their decisions on the basis of whether
the blocked Web sites are constitutionally protected or would add
value to a public library's collection.
At all events, CIPA clearly does not seem to serve the
purpose of limiting the extent of government speech given the
extreme diversity of speech on the Internet. Nor can Congress's
decision to subsidize Internet access be said to promote a
governmental message or constitute governmental speech, even
under a generous understanding of the concept. As the Court
noted in Reno v. ACLU, 521 U.S. 844 (1997), "[i]t is no
exaggeration to conclude that the content on the Internet is as
diverse as human thought." Id. at 852 (internal quotation marks
omitted). Even with software filters in place, the sheer breadth
of speech available on the Internet defeats any claim that CIPA
is intended to facilitate the dissemination of governmental
speech. Like in Velazquez, "there is no programmatic message of
the kind recognized in Rust and which sufficed there to allow the
Government to specify the advice deemed necessary for its
legitimate objectives." Velazquez, 531 U.S. at 548.
In sum, we think that the plaintiffs have good arguments
that they may assert an unconstitutional conditions claim by
relying either on the public libraries' First Amendment rights or
on the rights of their patrons. We also think that the
plaintiffs have a good argument that CIPA's requirement that
public libraries use filtering software distorts the usual
functioning of public libraries in such a way that it constitutes
an unconstitutional condition on the receipt of funds. We do not
decide these issues, confident that our findings of fact on the
functioning of public libraries, their use of the Internet, and
the technological limitations of Internet filtering software, see
supra Sections II.D-E, would allow the Supreme Court to decide
the unconstitutional conditions claim if the Court deems it
necessary.
CIPA Sec. 1712(a)(2) contains a provision titled
"Separability," which is codified in the Library Services and
Technology Act, 20 U.S.C. Sec. 9134(f)(6), and provides: "If any
provision of this subsection is held invalid, the remainder of
this subsection shall not be affected thereby." CIPA section
1721(e) also contained a similar provision that applied to E-rate
funding, although it was not codified in the Communications Act.
That section, also titled "Separability," provided: "If any
provision of paragraph (5) or (6) of section 254(h) of the
Communications Act of 1934, as amended by this section, or the
application thereof to any person or circumstance is held
invalid, the remainder of such paragraph and the application of
such paragraph to other persons or circumstances shall not be
affected thereby." CIPA Sec. 1721(e).