Childrens Internet Protection Act (CIPA) ruling by the US District Court for the Eastern District | Page 4

the bulk of
the Web pages proscribed by CIPA, the libraries have made a
reasonable choice which suffices, under the applicable legal principles,
to pass constitutional muster in the context of a facial challenge.
Central to the government's position is the analogy it advances between
Internet filtering and the initial decision of a library to determine which
materials to purchase for its print collection. Public libraries have finite
budgets and must make choices as to whether to purchase, for example,
books on gardening or books on golf. Such content-based decisions,
even the plaintiffs concede, are subject to rational basis review and not
a stricter form of First Amendment scrutiny. In the government's view,
the fact that the Internet reverses the acquisition process and requires
the libraries to, in effect, purchase the entire Internet, some of which
(e.g., hardcore pornography) it does not want, should not mean that it is
chargeable with censorship when it filters out offending material. The
legal context in which this extensive factual record is set is complex,
implicating a number of constitutional doctrines, including the
constitutional limitations on Congress's spending clause power, the
unconstitutional conditions doctrine, and subsidiary to these issues, the
First Amendment doctrines of prior restraint, vagueness, and
overbreadth. There are a number of potential entry points into the
analysis, but the most logical is the spending clause jurisprudence in
which the seminal case is South Dakota v. Dole, 483 U.S. 203 (1987).
Dole outlines four categories of constraints on Congress's exercise of
its power under the Spending Clause, but the only Dole condition
disputed here is the fourth and last, i.e., whether CIPA requires libraries
that receive LSTA funds or E-rate discounts to violate the
constitutional rights of their patrons. As will appear, the question is not
a simple one, and turns on the level of scrutiny applicable to a public
library's content-based restrictions on patrons' Internet access. Whether
such restrictions are subject to strict scrutiny, as plaintiffs contend, or
only rational basis review, as the government contends, depends on
public forum doctrine.

The government argues that, in providing Internet access, public
libraries do not create a public forum, since public libraries may reserve
the right to exclude certain speakers from availing themselves of the
forum. Accordingly, the government contends that public libraries'
restrictions on patrons' Internet access are subject only to rational basis
review. Plaintiffs respond that the government's ability to restrict
speech on its own property, as in the case of restrictions on Internet
access in public libraries, is not unlimited, and that the more widely the
state facilitates the dissemination of private speech in a given forum,
the more vulnerable the state's decision is to restrict access to speech in
that forum. We agree with the plaintiffs that public libraries'
content-based restrictions on their patrons' Internet access are subject to
strict scrutiny. In providing even filtered Internet access, public
libraries create a public forum open to any speaker around the world to
communicate with library patrons via the Internet on a virtually
unlimited number of topics. Where the state provides access to a "vast
democratic forum[]," Reno v. ACLU, 521 U.S. 844, 868 (1997), open
to any member of the public to speak on subjects "as diverse as human
thought," id. at 870 (internal quotation marks and citation omitted), the
state's decision selectively to exclude from the forum speech whose
content the state disfavors is subject to strict scrutiny, as such
exclusions risk distorting the marketplace of ideas that the state has
facilitated. Application of strict scrutiny finds further support in the
extent to which public libraries' provision of Internet access uniquely
promotes First Amendment values in a manner analogous to traditional
public fora such as streets, sidewalks, and parks, in which
content-based restrictions are always subject to strict scrutiny.
Under strict scrutiny, a public library's use of filtering software is
permissible only if it is narrowly tailored to further a compelling
government interest and no less restrictive alternative would serve that
interest. We acknowledge that use of filtering software furthers public
libraries' legitimate interests in preventing patrons from accessing
visual depictions of obscenity, child pornography, or in the case of
minors, material harmful to minors. Moreover, use of filters also helps
prevent patrons from being unwillingly exposed to patently offensive,
sexually explicit content on the Internet.
We are sympathetic to the position of the government, believing that it

would be desirable if there were a means to ensure that public library
patrons could share in the informational bonanza of the Internet while
being insulated from materials that meet CIPA's definitions, that is,
visual depictions that are obscene, child pornography, or in the case of
minors, harmful to minors. Unfortunately this outcome, devoutly to be
wished, is not available in this less than best of all possible worlds. No
category definition used