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

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 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