Childrens Internet Protection Act (CIPA) ruling by the US District Court for the Eastern District | Page 5

by the blocking programs is identical to the
legal definitions of obscenity, child pornography, or material harmful
to minors, and, at all events, filtering programs fail to block access to a
substantial amount of content on the Internet that falls into the
categories defined by CIPA. As will appear, we credit the testimony of
plaintiffs' expert Dr. Geoffrey Nunberg that the blocking software is (at
least for the foreseeable future) incapable of effectively blocking the
majority of materials in the categories defined by CIPA without
overblocking a substantial amount of materials. Nunberg's analysis was
supported by extensive record evidence. As noted above, this inability
to prevent both substantial amounts of underblocking and overblocking
stems from several sources, including limitations on the technology that
software filtering companies use to gather and review Web pages,
limitations on resources for human review of Web pages, and the
necessary error that results from human review processes.
Because the filtering software mandated by CIPA will block access to
substantial amounts of constitutionally protected speech whose
suppression serves no legitimate government interest, we are persuaded
that a public library's use of software filters is not narrowly tailored to
further any of these interests. Moreover, less restrictive alternatives
exist that further the government's legitimate interest in preventing the
dissemination of obscenity, child pornography, and material harmful to
minors, and in preventing patrons from being unwillingly exposed to
patently offensive, sexually explicit content. To prevent patrons from
accessing visual depictions that are obscene and child pornography,
public libraries may enforce Internet use policies that make clear to
patrons that the library's Internet terminals may not be used to access
illegal speech. Libraries may then impose penalties on patrons who
violate these policies, ranging from a warning to notification of law
enforcement, in the appropriate case. Less restrictive alternatives to
filtering that further libraries' interest in preventing minors from

exposure to visual depictions that are harmful to minors include
requiring parental consent to or presence during unfiltered access, or
restricting minors' unfiltered access to terminals within view of library
staff. Finally, optional filtering, privacy screens, recessed monitors, and
placement of unfiltered Internet terminals outside of sight- lines
provide less restrictive alternatives for libraries to prevent patrons from
being unwillingly exposed to sexually explicit content on the Internet.
In an effort to avoid the potentially fatal legal implications of the
overblocking problem, the government falls back on the ability of the
libraries, under CIPA's disabling provisions, see CIPA Sec. 1712
(codified at 20 U.S.C. Sec. 9134(f)(3)), CIPA Sec.1721(b) (codified at
47 U.S.C. Sec. 254(h)(6)(D)), to unblock a site that is patently proper
yet improperly blocked. The evidence reflects that libraries can and do
unblock the filters when a patron so requests. But it also reflects that
requiring library patrons to ask for a Web site to be unblocked will
deter many patrons because they are embarrassed, or desire to protect
their privacy or remain anonymous. Moreover, the unblocking may
take days, and may be unavailable, especially in branch libraries, which
are often less well staffed than main libraries. Accordingly, CIPA's
disabling provisions do not cure the constitutional deficiencies in
public libraries' use of Internet filters.
Under these circumstances we are constrained to conclude that the
library plaintiffs must prevail in their contention that CIPA requires
them to violate the First Amendment rights of their patrons, and
accordingly is facially invalid, even under the standard urged on us by
the government, which would permit us to facially invalidate CIPA
only if it is impossible for a single public library to comply with CIPA's
conditions without violating the First Amendment. In view of the
limitations inherent in the filtering technology mandated by CIPA, any
public library that adheres to CIPA's conditions will necessarily restrict
patrons' access to a substantial amount of protected speech, in violation
of the First Amendment. Given this conclusion, we need not reach
plaintiffs' arguments that CIPA effects a prior restraint on speech and is
unconstitutionally vague. Nor do we decide their cognate
unconstitutional conditions theory, though for reasons explained infra
at note 36, we discuss the issues raised by that claim at some length.
For these reasons, we will enter an Order 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.II. Findings of Fact 1.
Statutory Framework 1. Nature and Operation of the E-rate and LSTA
Programs In the Telecommunications Act of 1996 ("1996 Act"),
Congress directed the Federal Communications Commission ("FCC")
to take the steps necessary to establish a system of support mechanisms
to ensure the delivery of affordable telecommunications service to all
Americans. This system, referred to as "universal service," is codified
in section 254 of the