No. 02-361
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2002
____________________
UNITED STATES OF AMERICA, et al.,
Appellants,
-v-
AMERICAN LIBRARY ASSOCIATION, INC., et al.,
Appellees.
_____________________
ON APPEAL FROM
THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT COURT OF PENNSYLVANIA
BRIEF OF APPELLES
MULTNOMAH COUNTY PUBLIC LIBRARY, et al.
|
ACLU of Pennsylvania 125 South Ninth Street, Suite 701 Philadelphia, PA 19107 (215) 592-1513 David L. Sobel Electronic Privacy Information Center 1718 Connecticut Avenue, N.W. Suite 200 Washington, D.C. 20009 (202) 483-1140 |
Christopher A. Hansen (Counsel of Record) Steven R. Shapiro American Civil Liberties Union Foundation 125 Broad Street New York, New York 10004 (212) 549-2500 Charles S. Sims Proskauer Rose LLP 1585 Broadway New York, New York 10036-8299 (212) 969-3000 |
|
Lee Tien Electronic Frontier Foundation 454 Shotwell Street San Francisco, California 94110 (415) 436-9333 FOR PLAINTIFF MULTNOMAH COUNTY PUBLIC LIBRARY: Thomas Sponsler, County Attorney Multnomah County 501 N.E. Hawthorne Boulevard, Suite 500 Portland, Oregon 97214 (503) 988-3138 |
Page
INTRODUCTION.......................................................... 1
COUNTERSTATEMENT OF THE CASE................... 2
A. The Three-Judge Court's Findings of Fact....... 3
1. Public Libraries and Internet Access........... 3
2. Statutory Requirements............................... 6
3. Available Blocking Programs...................... 7
4. Blocking of Protected Speech..................... 8
5. The Inevitability of Overblocking.............. 11
6. The Inadequacy of CIPA's Unblocking Provisions 15
7. The Inability of Any Library To Comply
With the Statute.......................................... 17
8. Less Restrictive Alternatives...................... 19
B. The Three-Judge Court's Legal Analysis......... 21
SUMMARY OF ARGUMENT..................................... 22
ARGUMENT................................................................. 24
I. The Three-Judge Court's Injunction
Should Be Affirmed Because CIPA
Induces Public Libraries To Violate The
First Amendment............................................ 24
A. CIPA's Content-Based Restrictions
On Speech Are Subject to Strict
Scrutiny................................................... 24
1. Like Traditional Public Forums,
Internet Access at Public Libraries
Promotes Core First Amendment
Values................................................ 24
2. Strict Scrutiny Applies Because
The Government Seeks to
Selectively Exclude Protected
Speech From A Vast Democratic
Forum................................................ 27
B. CIPA's Content-Based Restrictions
Fail Strict Scrutiny................................... 29
The Mandated Use of Blocking
Programs Is Not Narrowly Tailored
To Prevent Access to Illegal
Speech................................................ 29
1. Libraries Have Other Less
Restrictive Means To Help Patrons
Find What They Want And Avoid
Unwanted And Illegal Content.......... 33
C. The Disabling Provisions Fail to Cure
CIPA's Defects....................................... 35
Page
D. The Government's Arguments Ignore
The Record and Misconstrue the
Relevant Law.......................................... 39
II. CIPA Imposes A Prior Restraint On
Speech............................................................ 42
III. CIPA Imposes An Unconstitutional
Condition On Funding Of Internet
Access at Public Libraries............................. 45
CONCLUSION............................................................... 49
Page
Cases
Arkansas Education Telev. Comm'n v. Forbes,
523 U.S. 666 (1998)................................................ 27, 40, 41
Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002)............................................................ 32
Bantam Books, Inc. v. Sullivan,
372 U.S. 58 (1963)............................................ 23, 36, 44, 45
Blount v. Rizzi,
400 U.S. 410 (1971)................................................. 23, 36, 43
Board of County Comm'rs v. Umbehr,
518 U.S. 668 (1996)............................................................ 45
Board of Educ. v. Pico,
457 U.S. 853 (1982)............................................................ 25
Butler v. Michigan,
352 U.S. 380 (1957)...................................................... 22, 33
City of Madison Joint School Dist. No. 8 v. Wisconsin Employment Relations Comm'n,
429 U.S. 167 (1976)............................................................ 28
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,
473 U.S. 788 (1985)...................................................... 27, 41
Denver Area Educ. Telecom. Consortium, Inc. v. FCC,
518 U.S. 727 (1996)............................................................ 36
Page
Drive In Theatres, Inc. v. Huskey,
435 F.2d 228 (4th Cir. 1970).............................................. 44
FCC v. League of Women Voters,
468 U.S. 364 (1984)................................................ 28, 46, 48
First Nat'l Bank of Boston v. Bellotti,
435 U.S. 765 (1978)............................................................ 46
Forsyth County v. Nationalist Movement,
505 U.S. 123 (1992)............................................................ 45
Freedman v. Maryland,
380 U.S. 51 (1965)........................................................ 42, 45
International Soc'y for Krishna Consciousness, Inc. v. Lee,
505 U.S. 672 (1992)............................................................. 27
Interstate Circuit v. Dallas,
390 U.S. 676 (1968)............................................................ 44
Kreimer v. Bureau of Police,
958 F. 2d 1242 (3d Cir. 1992)...................................... 24, 27
Lamont v. Postmaster General,
381 U.S. 301 (1965)............................................................ 36
Legal Servs. Corp. v. Velazquez,
531 U.S. 533 (2001)...................................................... 28, 47
Mainstream Loudoun v. Bd. of Trustees of the Loudoun County Library,
24 F. Supp. 2d 552 (E.D. Va. 1998)........................ 27, 43, 47
Page
Minarcini v. Strongsville City School Dist.,
541 F.2d 577 (6th Cir. 1976)............................................... 24
Near v. Minnesota,
283 U.S. 697 (1931)............................................................. 43
Perry Educ. Ass'n v. Perry Local Educators' Ass'n.,
460 U.S. 37 (1983)......................................................... 27, 48
Perry v. Sindermann,
408 U.S. 593 (1972)............................................................ 45
Procunier v. Martinez,
416 U.S. 396 (1974)............................................................ 46
Reno v. American Civil Liberties Union,
521 U.S. 844 (1997).................................................... passim
Rosenberger v. Rector and Visitors of the University of Virginia,
515 U.S. 819 (1995)....................................................... 21, 28
Rust v. Sullivan, 500 U.S. 173 (1991)............................ 46, 48
Sable Communications of California, Inc. v. FCC,
492 U.S. 115 (1989)................................................ 22, 23, 29
Shuttlesworth v. City of Birmingham,
394 U.S. 147 (1969)............................................................. 45
South Dakota v. Dole,
483 U.S. 203 (1987)............................................................ 22
Page
Southeastern Promotions, Ltd. v. Conrad,
420 U.S. 546 (1975)...................................................... 28, 44
Sund v. City of Wichita Falls,
121 F. Supp. 2d 530 (N.D. Tex. 2000)............................... 25
The Florida Star v. B.J.F.,
491 U.S. 524 (1989)............................................................ 32
Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622 (1994)............................................................ 32
United States v. Playboy Entertainment Group, Inc.,
529 U.S. 803 (2000).................................................... passim
Virginia v. American Booksellers Ass'n,
484 U.S. 383 (1988)............................................................ 46
Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton,
536 U.S. 150 (2002)............................................................ 37
Widmar v. Vincent,
454 U.S. 263 (1981)....................................................... 27, 41
Statutes
20 U.S.C. § 9134(f).................................................. 1, 6, 7, 15
47 U.S.C. § 254(h)..................................... 1, 7, 15, 35, 45, 48
Other Authorities
LESSIG, CODE (1999)........................................................... 26
This Court
should affirm the unanimous decision of a three-judge court striking down the
Children's Internet Protection Act (CIPA), 20 U.S.C. § 9134 (f)
Ignoring the extensive trial record, the government argues that CIPA should be upheld under rational basis review because it is consistent with the traditional discretion of libraries to select books for their collections. Yet under CIPA, the federal government, not a local librarian, dictates what speech libraries nationwide must exclude from the patrons. The federal government, not a local librarian, requires library patrons and staff to use blocking programs manufactured by private companies for profit. It does so knowing that these companies: (1) use their own broad content categories to block speech rather than the statute's legal definitions of unprotected expression; (2) block huge amounts of text though the statute requires blocking of images only; (3) refuse to disclose their secret block lists to the federal government, local governments, or libraries that must install them; and (4) make their decisions without any input from or regard for the views of librarians or local communities, much less prior judicial review. The government also knows that the blocking programs, if installed: (1) will block library patrons and staff from accessing speech that does not meet the categories of the law or the separate, broader categories defined by the private companies; (2) will block speech that local librarians and local communities have chosen to provide to patrons; (3) will block library patrons and staff from reading constitutionally protected speech literally millions of times; and (4) cannot reliably block the speech defined by the statute.
Far from an exercise of local discretion, CIPA substitutes the federal government's judgment for that of librarians. After closely considering local concerns, 93% of all public libraries chose not to mandate the use of blocking programs. The federal government now seeks to override those decisions, and to install private software companies as censors in our nation's libraries. Because CIPA threatens to distort the democratic, speech-enhancing qualities of both public libraries and the Internet, the three-judge court correctly enjoined its enforcement.
Two suits challenging the constitutionality of CIPA were filed in the United States District Court for the Eastern District of Pennsylvania, and were consolidated. The plaintiffs in this case (hereinafter "Multnomah plaintiffs") include large urban libraries serving Portland, Oregon and Santa Cruz, California; library systems serving rural and suburban communities in south central Wisconsin and Westchester County, New York; and state library associations in Connecticut, Maine, and Wisconsin. The Multnomah plaintiffs also include seven individuals who use their local libraries for Internet access. For example, plaintiff Emmalyn Rood used the Internet at her library in her early teens to "research issues relating to her sexual identity." J.S. App. 22a. Finally, the Multnomah plaintiffs include eight Web sites that were blocked by major blocking programs even though they provided no information that was illegal. Two of the Web sites are for political candidates. AfraidtoAsk.com and Planned Parenthood provide medical information about sex. PlanetOut provides information of interest to gay and lesbian communities. Id. at 23a-24a.
Pursuant to the statute, a special three-judge court was convened. After a period of discovery, the court held an eight-day trial at which it heard the testimony of twenty witnesses and admitted hundreds of exhibits, including depositions. Id. at 6a. On May 31, 2002, before the statute would have required libraries to install blocking programs, the three-judge court unanimously concluded that the statute was unconstitutional and enjoined its application. The court made "extensive findings of fact," id. at 7a, that consume almost one hundred pages in the Appendix to the Jurisdictional Statement. The government does not argue that any of these facts are clearly erroneous.
1. Public Libraries and Internet Access
The three-judge court made a number of findings about the nature of public libraries and their provision of Internet access to the public. Specifically, the court found that libraries share a common mission to provide patrons with the widest possible range of information and ideas. J.S. App. 33a. See also e.g. J.A. 35-36 (Morgan testimony); 79-80 (Cooper testimony); 423-442 (Chelton Rebuttal Report). That principle was endorsed by all of the librarians that testified below, and is incorporated into the American Library Association's Bill of Rights and Freedom to Read Statement. J.A. 358-50, 366-73 (PX 1, 9). In practice, however, libraries cannot carry every book on their shelves because of limited space. Faced with this physical constraint, librarians apply professional standards to select particular books, tapes, and other materials for their collections in order to meet the needs of their local communities. J.S. App. 35a; J.A. 36 (Morgan testimony).[1] In making these assessments, librarians try to provide library patrons with the books they want to read. Librarians do not, generally speaking, limit their library collections to books that the staff considers "worthy" or "educational." E.g. J.A. 79-80 (Cooper testimony); 423-442 (Chelton Rebuttal Report). Libraries routinely provide access to purely recreational material, including some that is sexually explicit. J.S. App. 32a-33a; See also e.g. J.A. 40-41 (Morgan testimony); 80, 84-85 (Cooper testimony); 428 (PX 83, Chelton Rebuttal Report).
Librarians also routinely provide patrons with access to materials not in their collections "through the use of bibliographic access tools and interlibrary loan programs." J.S. App. 34a; J.A. 42-43 (Morgan testimony); 83-84 (Cooper testimony). They do not apply selection criteria when using these methods; instead, they provide the patron with any resource they can obtain. J.A. 79-80 (Cooper testimony). Some libraries allow patrons to obtain interlibrary loan materials without going through a librarian. J.A. 83 (Cooper testimony).
All of the defendants' experts agreed that, either through direct selection or through techniques such as interlibrary loan, libraries should provide patrons with any information they seek so long as the information is legal. J.A. 266-67 (Cronin testimony), 293 (Davis testimony). Librarians are trained to use just about any means to assist a patron in obtaining information he or she seeks. J.S. App. 33-34a. Increasingly, they turn to the Internet, which "vastly expands the amount of information available to patrons of public libraries." J.S. App. 36a.
"The vast majority of public libraries offer Internet access to their patrons." Id.; Jt. Trial Stip. para 263. There is an enormous demand for the service. J.S. App. 36a. "Public libraries play an important role in providing Internet access to citizens who would not otherwise possess it." Id. Indeed, libraries are the primary source of Internet access for poor families. Id. at 36a-37a, 130a.
The court found that the provision of Internet access at public libraries is notably different than the selection of materials for physical collections. Id. at 120a-127a. Through the Internet, librarians provide access to a vast range of Internet content regardless of any librarian's judgment that patrons will want to read any particular page or that any particular page meets professional selection standards. Id. at 124a. "[W]hen public libraries provide their patrons with Internet access, they intentionally open their doors to vast amounts of speech that clearly lacks sufficient quality to ever be considered for the library's print collection." J.S. App. 123a. Indeed, "almost none" of the Web sites made available will have been reviewed by "either the library's collection development staff or even the filtering companies." Id. at 125a, 137a (libraries do not exercise "editorial discretion" on the Internet). Library Internet access works so that "[a]ny member of the public with Internet access could ... tonight jot down a few musings on any subject under the sun, and tomorrow those musings would become part of public libraries' online offerings." Id. at 125a. To the extent that libraries find it necessary to place limits on Internet access, the vast majority of libraries merely ration limited resources and make no content-based exclusions. Id. at 36a.
2. Statutory Requirements
The Children's Internet Protection Act (CIPA) applies to every local library in the country that receives funds under two popular federal programs. Id. at 14a-16a. Under CIPA, libraries must install and operate "technology protection measures" on every computer that provides Internet access. 47 U.S.C. § 254(h)(6); 20 U.S.C. § 9134(f). These measures must be functioning on computers used by staff as well as patrons, adults as well as minors, and computers privately funded as well as those subsidized by the federal program. J.S. App. 18a. When the computer is being used by an adult, the "technology protection measures" must "protect against access" to "visual depictions" that are obscene or child pornography. When the computer is being used by a minor (under 17), it must additionally prevent access to "visual depictions" that are "harmful to minors." 47 U.S.C. § 254(h)(6); 20 U.S.C. § 9134(f); J.S. App. 202a.
The statute applies to any library that receives federal funds from either the "e-rate" program or as an LSTA grant. 47 U.S.C. § 254(h); 20 U.S.C. § 9134; J.S. App. 14a-16a. More than fifty percent of public libraries participate in one or both of these programs; there are over 16,000 libraries nationwide. GX 37 at 4, Public Libraries and the Internet 2000: Summary Findings and Data Tables, Tr. 10/28/02 at 47. If the library is receiving e-rate funding (most libraries do), a library administrator "may disable the technology protection measure concerned, during use by an adult, to enable access for bona fide research or other lawful purpose." 47 U.S.C. § 254(h)(6)(D); J.S. App. 168a n.33. If the library receives no e-rate funding, but does receive LSTA funds, it may disable the "technology protection measure" for adults or minors "for bona fide research or other lawful purpose." 20 U.S.C. § 9134(f)(1) and (3).
3. Available Blocking Programs
Because Internet blocking programs are the only "technology protection measures" currently available for libraries to comply with CIPA, the three-judge court made extensive findings about their operation and efficacy. J.S. App. 48a-94a. Internet blocking programs, or filters, are software products created and sold by private companies for profit. These products categorize and then block speech on the Internet. For example, one well-known product, Websense, has created 30 categories ranging from "Abortion Advocacy" to "Job Search" to "Tasteless" and "Adult." Id. at 50-51a. If a library utilizes the software, persons attempting to access a site on the category list will be blocked from doing so. Id.
There is no technology in existence, or likely to come into existence, that can "protect against access" to the categories defined by the statute. Id. at 6a, 11a, 68a; Jt. Trial Stip. para 274, 291. All of the existing products use categories much less precisely defined, and much broader, than the statute. J.S. App. 49a-51a. None even purports to apply the legal categories defined by the statute. Jt. Trial Stip. para 291. "[T]here is no judicial involvement in the creation of the filtering software companies' category definitions." J.S. App. 51a. All of the existing products apply their categories uniformly without regard to local values or community standards. Id.
Although the statute only requires blocking of "visual depictions," none of the available products categorizes based solely on visual depictions and none blocks visual depictions without also blocking text. Id. at 56a, 93a. Neither judges nor librarians are involved in the products' decision to categorize and block particular Web sites. Id. at 51a, 53a; Jt. Trial Stip. para 292. Web pages that are blocked by the products are not notified. J.S. App. 53a.
The products consider their block site lists "to be proprietary information, and hence . . . unavailable to customers or the general public for review, so that public libraries that select categories when implementing filtering software do not really know what they are blocking." J.S. App. 7a; Jt. Trial Stip. para 290. Neither the federal government, which mandates its use, nor the librarians who must install it, nor the patrons and staff who must live with it, can obtain a list of the speech that has been blocked. J.S. App. 52a-53a.
All of the parties agreed, and the court found, that all of the available products substantially overblock, i.e., they block sites that do not fit either the category definitions established by the companies or the differently (and more narrowly) defined statutory categories. Id. at 7a, 8a, 11a, 12a, 48a-94a. J.A. 131-223 (Nunberg testimony), 295-357 (Edelman testimony), 467-474 (PX 109, Janes report); PX 110-119, 122-123, 128-135, 162A-K, 165-169 (screen shots, lodged with the Court). All of the products also substantially underblock, i.e., they fail to block sites that meet the category or statutory definitions. J.S. App. 22a, 68a-94a.
4. Blocking of Protected Speech
As the three-judge court concluded, the software mandated by CIPA "erroneously block[s] a huge amount of speech that is protected by the First Amendment." J.S. App. 91a; 12a. The court estimated the number of Web pages erroneously blocked to be "[a]t least tens of thousands . . . even when considered against the filtering companies' own category definitions." Id. at 93a. The number that are blocked and do not meet the statute's categories, is "of course much higher." Id. The court found that it is difficult to calculate overblocking rates accurately, though a number of witnesses tried. Id. at 68a-79a. The court ultimately found that even defendants' expert identified rates of overblocking of "between nearly 6% and 15%." Id. at 49a. These rates "greatly understate the actual rates of overblocking that occurs" for a variety of reasons. Id. at 79a, 75a-76a. Because of the vast amount of content on the Web and large number of library patrons around the country who access the Internet daily, defendants' expert admitted that even using his estimate, library patrons would be wrongly denied access to Web sites millions of times. Finnell testimony 4/1/02 at 178-179.
Largely on the basis of its own analysis of the Edelman CD-ROM, the three-judge court identified a number of specific examples of sites or pages that had been overblocked, whether measured by the statutory categories or the broader product categories. Id. at 86a-89a. Each of the plaintiff Web sites was wrongly blocked. J.A. 299 (Edelman testimony); Supp. Lodging 22 (PX 122-23, Edelman CDs). Two of those sites, by Wayne L. Parker and Jeffery Pollock, were created by political candidates to promote their candidacy. J.S. App. 24a. Another site, afraidtoask.com, is operated by a doctor and provides information about medical issues that many people find embarrassing. For example, afraidtoask.com has a section discussing normal variations in penis size. Many of those accessing afraidtoask.com do so through mechanisms that ensure their anonymity. J.A. 237 (Bertman testimony). Another of the sites, planetout.com, is a gay rights site that was one of the sites plaintiff Emmalyn Rood tried to access as she was doing research about her sexual identity. J.A. 223-32 (Rood testimony). In addition, the undisputed evidence at trial showed the following examples of wrongly blocked sites: The Web page of the Republican National Committee, JX 5 at 59, Walker deposition, Tr. 4/3/02 at 90; a Calgary Firefighters Museum site, Supp. Lodging 22, 108-109 (PX 123, 168); a site teaching piano playing, Supp. Lodging 22, 99 (PX 123, 165); the cover of Cosmopolitan magazine, Supp. Lodging 81 (PX 162G); a juggling site, Supp. Lodging 72 (PX 162B); a site about Navy units, Supp. Lodging 19-21 (PX 119); a teen health site on sexually transmitted disease, PX 160A, Tr. 3/28/02 at 217; an abstinence site, Supp. Lodging 22 (PX 123), PX 160E, Tr. 3/28/02 at 217; and a scholarly discussion of biblical attitudes towards homosexuality, PX 160D, Tr. 3/28/02 at 217. The Edelman CD-ROM, provides numerous other examples. Supp. Lodging 22 (PX 122-23); See also J.A. 187-199 (Nunberg testimony); Plaintiffs' Joint Proposed Findings of Fact, 221-263.
Library experts testified that at least several hundred of the examples of overblocking were sites librarians would affirmatively select for the library's collection if traditional selection methods applied to the Internet. J.S. App. 82a n. 17. For example, many libraries affirmatively refer patrons to the site of the Lewis Knighten Cancer Center, but it was blocked. Lipow testimony, 4/2/02 at 153; Supp. Lodging 31 (PX 129). Another site blocked was alphasearch, a major search engine to which many libraries link. Lipow testimony, 4/2/02 at 154; Supp. Lodging 37 (PX 130). All of these sites are collected, and screen shots provided, in Appendix A on the Edelman CD-ROM.
5. The Inevitability of Overblocking
The three-judge court also concluded that all blocking programs inevitably overblock and underblock because of limitations inherent in the technology, and made lengthy findings in support of this conclusion. J.S. App. 48a-94a; 150a-151a. It ultimately found that there is no "technology protection measure" that will do what CIPA requires without also blocking access to a vast amount of speech that is constitutionally protected for both adults and minors. Id. at 7a, 12a, 13a, 48a-94a. As an initial matter, all of the products necessarily overblock because the categories of speech they use are broader than the categories defined by the statute, and because their blocking decisions are based on text as well as image. Id. at 51a, 60a; 74a; compare J.S. App. 49a-51a with 71a-18a; Jt. Trial Stip. para 312; see also J.A. 181 (Nunberg testimony). A number of other factors inevitably cause overblocking.
First, categorizing the Web is an impossible task in part due to "the Internet's size, rate of growth, rate of change, and architecture." J.S. App. 68a, 54a. The majority of Web pages cannot be found by the methods used by the software companies. Id. at 28a-29a, 56a. Those pages are accessible through a variety of means by library patrons. Id.; J.A. 156, 176 (Nunberg testimony). Even the portions of the Web that software companies can find, the "indexable Web," consists of at least 2 billion pages. J.S. App. 30a. Approximately 1.5 million pages are added each day. J.S. App. 30a; See also J.A. 168 (Nunberg testimony). The content of particular Web sites is also highly dynamic, with pages constantly being removed or changed. J.S. App. 29a-30a. "Individual Web pages have an average life span of approximately 90 days." Id.
Second, to review all of the dynamic content on the Web, blocking software companies have hired "between eight and a few dozen employees." Id. at 60a. Software companies must use a combination of automated search techniques and human review to categorize the vast content on the Web, both of which are subject to serious error. J.A. 162-168 (Nunberg testimony). At least one of the products allows computers to make decisions about sites to block without human review. J.S. App. 60a. These sites are listed solely on the basis of text and without reference to any visual image. Jt. Trial Stip. para 309. The products very rarely review a site again once they have initially categorized it, though content changes constantly. J.S. App. 53a, 64a-65a; Jt. Trial Stip. para 323. It is obvious that a comprehensive review and evaluation of Web sites by these companies is impossible. J.S. App. 68a, 54a.
Third, the products are unable to differentially block access to video files, audio files, chat rooms, or discussion groups. Regardless of whether a movie, for example, contains one or a dozen sexually explicit scenes, the products must either block or fail to block the entire movie. J.A. 335 (Edelman testimony).
Fourth, the products overblock because they primarily block at the level of the root domain rather than at the level of an individual Web page. J.S. App. 61a. To take one example from the record, at least one product blocks all of the pages in the online magazine Salon (www.salon.com), no matter how innocuous, because there are some pages in Salon that they believe meet their criteria. Id. at 62a. There may be hundreds or thousands of pages under a single root URL. Jt. Trial Stip. para 243.
Fifth, the Internet's addressing system causes serious overblocking or underblocking. Every Web page can be located by its Web address (a URL such as www.uscourts.gov) or its IP address (a series of numbers). J.S. App. 26a-28a, 62a. Millions of Web pages with vastly different content may share a single IP address. Id. If the software companies fail to block by IP address, users could bypass the blocking program by accessing forbidden sites using the IP address. If the product blocks by IP address, users will be unable to access any of the multiple sites at a given IP address, no matter how harmless the content. Id. All of the companies block by IP address as well as URL. J.A. 321 (Edelman testimony). One company said that it received fifty complaints a week about overblocking caused by IP blocking. J.A. 199 (Nunberg testimony).
Sixth, overblocking is caused by so-called "loophole" sites. J.S. App. 62a-64a. Loophole sites allow a user to access a site using a Web address other than its primary address. There are three major kinds of loophole sites: caches (e.g., Google provides its own cache copy of any Web page it indexes), translation sites (which provide a Web page roughly translated into another language), and anonymizers (which allow access to a Web page while masking the user's identity). Id. To take one of these examples: Google searches for Web sites. When it finds a site, such as afraidtoask.com, it automatically makes a copy of that site (in a "cache") and gives it a name such as "http://216.239.57.100/...www.afraidtoask.com..." The entire content of afraidtoask can be accessed from this alternate address as well as afraidtoask's original address. The blocking products must either prevent access to all loophole sites, which "necessarily results in a significant amount of overblocking, because the vast majority of pages that are cached, for example, do not contain content that would match a filtering company's category definitions" or must allow access "thus resulting in substantial underblocking." Id. at 64a. The Google cache alone represents hundreds of millions of sites. J.A. 205 (Nunberg testimony). All of the products block loophole sites. J.A. 200, 205 (Nunberg testimony).
Finally, the evidence established that all of the blocking programs also inevitably underblock due to the same inherent technological problems that lead to overblocking. In addition, the companies' human reviewers only review a very small percentage of the Web. The vast majority of Internet content is deemed not to meet the blocking company categories and is thereby excluded from human review by computers using an imprecise and secret method of text analysis. J.S. App. 53a-64a. For that small percentage not excluded by a computer, "[h]uman reviewers generally focus on English language Web sites, and are generally not required to be multi-lingual." Id. at 60a. Even with the products engaged, a library patron will be able to find material that meets either the categories of the statute or the categories set by the products. J.A. 179 (Nunberg testimony); see also PX 121 at 27-8, Edelman expert report, Tr. 4/2/02 at 127; JX 8 at 12, 164, Dussome deposition, Tr. 4/2/02 at 90; JX 9 at 93, Gallagher deposition, Tr. 4/2/02 at 90; JX 10 at 14, Blakeman deposition, Tr. 4/2/02 at 90.
6. The Inadequacy of CIPA's Unblocking Provisions
The three-judge court also made findings about the feasibility of unblocking sites wrongly blocked by the programs, and the effect of requiring patrons to seek permission to access blocked sites. CIPA allows, but does not require, libraries to unblock sites upon the request of an adult patron (or a minor in some cases) with a "bona fide research or other lawful purpose." 20 U.S.C. §9134(f)(3); 47 U.S.C. §254 (h) (6)(D). All of the blocking software products offer a method for doing some unblocking. J.S. App. 52a.
The feasibility of unblocking according to the requirements of the statute was not established. The products do not permit multiple people to unblock. Thus, only one person in a library system, no matter how large or busy the system, can have authority to unblock. J.A. 336-37, 339 (Edelman testimony). The products also do not permit a librarian to unblock text while continuing to block only a specific visual image or vice versa. J.A. 223 (Nunberg testimony). The government failed to prove that any product was capable of unblocking for adults but not minors, for one patron or one terminal only (as opposed to all patrons or all terminals), or for only a specified time period based on a particular patron's purpose. J.A. 341-342 (Edelman testimony).
Even assuming that unblocking according to the statute were feasible, the court found that "many patrons are reluctant or unwilling to ask librarians to unblock Web pages or sites that contain only materials that might be deemed personal or embarrassing, even if they are not sexually explicit or pornographic." J.S. App. 47a, 172a. For example, plaintiff Emmalyn Rood testified "that she would have been unwilling as a young teen to ask a librarian to disable filtering software so that she could view materials concerning gay and lesbian issues." J.S. App. 47a. Similarly, plaintiff Mark Brown testified that he would have been unwilling to ask a librarian to unblock a site when doing research on his mother's breast cancer. J.S. App. 172a-73a. Plaintiff Dr. Bertman testified that many users came to his site, afraidtoask.com, through one of the "loophole" methods, an anonymizer, to preserve their anonymity. J.A. 237 (Bertman testimony). Thus, even though he is a physician, and even though his site assures readers that it will protect their privacy, his readers did not even want him to know the address of the computer from which they accessed his information.
The court also found that "[t]he pattern of patron requests to unblock specific URLs in the various libraries involved in this case" confirmed that "patrons are largely unwilling to make unblocking requests unless they are permitted to do so anonymously." J.S. App. 47a. For example, defendants' expert testified that the Greenville Public Library in South Carolina wrongly blocked close to a hundred sites in a two-week period (a serious underestimate of actual overblocking, as the court found), but the library has received only twenty-eight unblocking requests in almost two years. Id.
Even when sites were unblocked, the process took "between 24 hours and a week." Id. at 46a. Because most libraries have more demand for Internet access than Internet access terminals, they often limit the time each patron may use the computer. J.A. 73-74 (Morgan testimony). Librarians testified that few patrons would interrupt their limited access time to request an override. Id.; J.S. App. 174a.
7. The Inability of Any Library To Comply with the Statute
The government did not provide evidence of a single library that was in compliance with the statute. The government offered testimony from some libraries that currently use blocking software. All but one refused to block staff computers, although staff blocking is required by the statute. Ewick testimony 4/3/02 at 31; J.A. 259 (Sudduth testimony). These libraries made both blocking and unblocking decisions based on the categories defined by the software companies, not the more limited categories defined by the statute. JX 1 at 42-43; Dooley Deposition, Tr. 4/3/02 at 90; JX 2 at 35-36, Majilton Deposition, Tr. 4/3/02 at 90; JX 3 at 77, Stewart Deposition Tr. 4/3/02 at 90; JX 4 at 25-26, Saferite Deposition Tr. 4/3/02 at 90; JX 5 at 32-34, Walker Deposition, Tr. 4/3/02 at 90; Biek testimony 3/28/02 at 111-12; James testimony 3/29/02 at 15; Belk testimony 3/29/02 at 58. The Westerville, Ohio and Greenville, South Carolina libraries blocked categories as broad as "tasteless." Barlow testimony 4/1/02 at 26; James testimony 3/29/02 at 16. Though the statute requires blocking only of images, all but one library blocked text as well as images, and made unblocking decisions based on text as well as images. E.g. Barlow testimony 4/1/02 at 52-54; James testimony 3/29/02 at 15. Tacoma, which blocked only images, blocked any image, no matter how innocuous, on a page that met the blocking software company's category. Biek testimony 3/28/02 at 48. "None of these libraries [proffered by the government] makes differential unblocking decisions based on the patrons' age. Unblocking decisions are usually made identically for adults and minors. Unblocking decisions even for adults are usually based on suitability of the Web site for minors." J.S. App. 47a; JX 4 at 14, 45, 70, Saferite deposition, Tr. 4/3/02 at 90; JX 5 at 34, Walker deposition, Tr. 4/3/02 at 90; Biek testimony 3/28/02 at 113; James testimony 3/29/02 at 15; Belk testimony 3/29/02 at 71; Barlow testimony 4/1/02 at 42, 44. The libraries all blocked or unblocked a site for all their patrons for all time; none unblocked for only one patron or for a limited time period. JX 1 at 48-49, Dooley deposition Tr. 4/3/02 at 90; Barlow testimony 4/1/02 at 33; Ewick testimony 4/3/02 at 33, 57. See also J.A. 341-42 (Edelman testimony). Though the statute permits unblocking only for "bona fide research purposes," no library used this standard in determining whether to unblock a site. E.g. Belk Testimony 3/29/02 at 71-73.
Government witnesses who currently use blocking software in their libraries all admitted that the programs both overblocked and underblocked. E.g. J.S. App. 77a-78a. Indeed, even in Tacoma where a librarian claims to review a list of every single site blocked to see if he can find errors, there is still overblocking. Id. at 46a, 78a, 173a. Defendants' experts agreed that all of the libraries they studied demonstrated both overblocking and underblocking. Id. at 71a-79a. No library was able to unblock sites without a delay, often of up to a week. Id. at 174a.
The use of blocking software reached stark levels of irrationality and arbitrariness. For example, in Tacoma, the library on which the government most heavily relied, the witness testified that the software blocked patrons from viewing the pictures in the online version of Playboy magazine. If asked to unblock these pictures, even by a middle-aged, female sex researcher, he said he would refuse to do so. At the same time, the library allowed all patrons, regardless of age, to view the same pictures in Playboy magazine on microfilm machines that were functionally indistinguishable from the library's computers. J.A. 250-252 (Biek testimony).
8. Less Restrictive Alternatives
Prior to the hammerlock imposed by CIPA, more than 90% of public libraries had exercised their local discretion not to require the use of blocking programs, in part because of their deficiencies. J.S. App. 3a, 45a; Jt. Trial Stip. para 271; see also J.A. 54 (Morgan testimony); 104 (Cooper testimony). Instead, as the three-judge court found, libraries have developed a variety of methods for assisting patrons in finding the content they want and avoiding unwanted content. J.S. App. 37a-48a.
Some libraries offer patrons the option of voluntarily using blocking software. Id. at 45a; J.A. 53 (Morgan testimony). Some of those libraries allow parents to decide whether their child will use blocking software or not. J.A. 53 (Morgan testimony); J.S. App. 162a-163a. When library patrons are given the chance to use blocking software, 80% refuse to use the software. J.A. 56 (Morgan testimony).
Many libraries also offer "training to patrons on how to use the Internet, including how to access the information they want and to avoid the materials they do not want." J.S. App. 41a. Among other things, libraries offer links to sites that have been screened by librarians and found to be especially valuable for library patrons. Id. at 41a-42a. These links do "not preclude patrons from attempting to access other Internet Web sites." Id. at 42a.
In addition, libraries have devised a variety of techniques for minimizing the risk that a patron will view material he or she finds objectionable on a computer being used by another patron. Id. at 42a-44a. Some libraries place their monitors so that it is difficult for non-users to see the screen. Others offer "privacy screens" or provide recessed monitors so that passers-by cannot see another user's screen. Id. Other libraries put the monitors in the middle of high traffic areas to inhibit users from accessing objectionable material. J.S. App. 44a. Libraries also offer software that automatically erases a screen if there is no activity by a patron for a specified time in order to assure that the next user not be subjected to material that user finds objectionable. J.A. 58 (Morgan testimony).
Though the government seeks to justify use of blocking software by describing behavioral problems in the library, the three-judge court found that behavioral problems existed in libraries before there was an Internet and persist even in libraries that use blocking software. Libraries continue to deal with behavior problems by enforcing general behavioral rules. J.S. App. 41a, 146a-47a; J.A. 462-66 (PX 106, Multnomah County Library Policy).
Most libraries also have Internet use policies that prohibit users from accessing illegal material. J.S. 37a. In the event that librarians observe material on a user's Internet screen that is clearly illegal, they can and do call the police. J.A. 61 (Morgan testimony); 453-61 (PX 105, Multnomah County Library policy); see also Hamon testimony, 3/25/02 at 217-221.
Methods other than blocking software have proven very effective in minimizing any problems caused by some patrons objecting to material in the library. Libraries that did not use mandatory blocking software testified that they had very few complaints related to the content of Internet sites. J.A. 61-69 (Morgan testimony); 109-111 (Cooper testimony). The three-judge court found that the government had not provided any evidence of the relative feasibility, cost, and effectiveness of these various alternatives to blocking software. J.S. App. 45a, 146a.
B.
As the three-judge court recognized, "[t]he
legal context in which this extensive factual record is set is complex," and
"[t]here are a number of potential entry points into the analysis." Id.
1.
CIPA regulates protected speech on the basis of its content. Under this
Court's longstanding precedents it would clearly be unconstitutional if imposed
as a direct mandate on public libraries.
See
Internet access at public libraries uniquely promotes First
Amendment values. Because CIPA seeks to selectively and arbitrarily exclude protected
speech from a vast democratic forum otherwise dedicated to unrestricted online
communication, it is properly subject to strict scrutiny. Applying strict scrutiny, CIPA must be
struck down because the government failed to prove it is narrowly tailored to
serve a compelling government interest.
See Reno
2. CIPA's blocking mandate also imposes an unlawful prior restraint by effectively silencing speech prior to its dissemination in public libraries, without judicial review or even the semblance of First Amendment due process.
3. As a condition on the receipt of a federal benefit, CIPA is equally unconstitutional. It requires libraries to block speech even where Internet terminals are wholly funded by non-federal dollars, and distorts the usual function of public libraries in providing uncensored access to information on the Internet.
I. The Three-Judge Court's Injunction Should Be Affirmed Because CIPA Induces Public Libraries To Violate The First Amendment.
1.
If there was ever a context in which government should not be allowed to impose content controls through its spending power, it is Internet access at public libraries. As the three-judge court correctly found, public libraries and the Internet have many qualities analogous to traditional public forums, which are entitled to the utmost protection of the First Amendment. Sidewalks and public parks are protected by strict scrutiny because their "speech-facilitating character . . . makes them distinctly deserving of First Amendment protection." J.S. App. 129a. Like these traditional forums, Internet access at public libraries "uniquely promote[s] First Amendment values." Id. The very purpose of public libraries is to provide free access to books, ideas, resources, and information for education, employment, enjoyment and self-government. J.A. 35-36 (Morgan testimony), 79-80 (Cooper testimony); 423-442 (Chelton Rebuttal Report). The public library is "the quintessential locus for the receipt of information." Kreimer v. Bureau of Police, 958 F.2d 1242, 1255 (3d Cir. 1992); see also Minarcini v. Strongsville City School Dist., 541 F.2d 577, 582 (6th Cir. 1976) ("A library is a mighty resource in the free marketplace of ideas.") (citing Abrams v. United States, 250 U.S. 616 (1928) (Holmes, J., dissenting); Sund v. City of Wichita Falls, 121 F. Supp. 2d 530, 547 (N.D. Tex. 2000) ("The right to receive information is vigorously enforced in the context of a public library."). Like other traditional forums, public libraries are "generally open to any member of the public" who enters them. J.S.App. 129a-130a. By providing free access to information, public libraries have always played an equalizing role that allows all individuals, regardless of their income level, to participate fully in our democracy by becoming informed, literate, educated, and culturally enriched. Especially in public libraries, "the State may not, consistently with the spirit of the First Amendment, 'contract the spectrum of available knowledge.'" Board of Educ. v. Pico, 457 U.S. 853, 866 (1982) (quoting Griswold v. Connecticut, 381 U.S. 479, 482 (1965)).
The Internet has now provided unprecedented opportunities to expand the scope of information from around the globe that is available to users in public libraries, at substantially less cost than comparable amounts of printed material. Though the Internet "provides relatively unlimited, low-cost capacity for communication of all kinds," Reno, 521 U.S. at 870, large segments of our society still lack access to the Internet at home or work. J.S. App. 36a-37a. "By providing Internet access to millions of Americans to whom such access would otherwise be unavailable, public libraries play a critical role in bridging the digital divide separating those with access to new information technologies from those that lack access." Id. at 130a and n.26.
In addition to opening their doors to all
members of the public seeking information, public libraries are like
traditional public forums because they provide broad access to a wide range of
speakers when they offer Internet access.
"By providing patrons with Internet access, public libraries in effect
open their doors to an unlimited number of potential speakers around the world,
inviting the speech of any member of the public who wishes to communicate with
library patrons via the Internet."
J.S. App. 134a. As this Court found, content on the Internet is "as diverse as
human thought." Reno
In fact, the volume and diversity of speech on the Internet "far exceeds the volume of speech available to audiences in traditional public fora." J.S. App. 134a. As this Court explained in striking down prior attempts to censor this important medium,
Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.
Reno, 521 U.S. at 870. See also LESSIG, CODE 167, 185 (1999) ("The architecture of the Internet, as it is right now, is perhaps the most important model of free speech since the founding. . . . The model for speech that the framers embraced was the model of the Internet - distribute, non-centralized, fully free and diverse.").
Because of the Internet's speech-enhancing qualities, "the growth of the Internet has been and continues to be phenomenal," Id. at 885. "Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us." Playboy, 529 U.S. at 818. Internet access at public libraries "presents unique possibilities for promoting First Amendment values," J.S. App. 136a, and the three-judge court thus correctly held that CIPA's content-based restrictions are subject to strict scrutiny. J.S. App. 138a.
2.
1. The Mandated Use of Blocking Programs Is Not Narrowly Tailored To Prevent Access to Illegal Speech.
Id
2. Libraries Have Other Less Restrictive Means to Help Patrons Find What They Want and Avoid Unwanted and Illegal Content.
In particular, almost all libraries have Internet use policies that forbid access to illegal content.
Libraries can ensure that their patrons are aware of such policies by posting them in prominent places in the library, requiring patrons to sign forms agreeing to comply with the policy before the library issues library cards to patrons, and by presenting patrons, when they log on to one of the library's Internet terminals, with a screen that requires the user to agree to comply with the library's policy before allowing the user access to the Internet.
J.S. App. 158a. Almost all libraries also offer training in Internet usage, and provide lists of Web sites selected by librarians as appropriate for children or of particular relevance to their local communities. Section A8, supra. Some libraries place unblocked computers in well-trafficked areas to discourage violations of Internet use policies. Other libraries have installed privacy screens or recessed monitors, or have segregated computer terminals, to prevent unwanted exposure to material viewed by others. J.S. App. 165a-166a.
Similar alternatives exist to prevent
minors from accessing material harmful to minors. Some libraries also offer the optional use of blocking software. Others have policies that allow parents to decide whether
their children will use blocking programs, or policies that require only
younger children to use them. Id. at 162a-163a.
CIPA replaces parental decision-making about appropriate Internet use
with the federal government's blanket judgment. "A court should not assume that a plausible, less
restrictive alternative would be ineffective; and a court should not presume
parents, given full information, will fail to act." Playboy
The provisions are also unworkable for practical reasons. It is not possible to unblock visual images without also unblocking text and vice versa. Section A6, supra. The government also failed to prove that any software permits unblocking for a single patron based on his purpose, while continue to block access by those with less "bona fide" purposes. Id. In addition, processing unblocking requests could take up to a week. J.S. App. 46a.
To make matters worse, the unblocking provisions are impossibly vague. J.S. App. 167a-170a. The statute refers to the patron's "purpose" and not the nature of the site. Thus, it appears to require librarians to inquire into the "bona fide" nature or "lawfulness" of the patron's purpose in seeking to access a site regardless of whether the site is illegal. The government asks the Court to ignore the word "purpose" and to treat the provision as permitting unblocking of any lawful site. But this interpretation would render the "bona fide research" language superfluous.
Even assuming the government's interpretation would provide any useful guidance to librarians, it would place librarians in the business of making essentially unreviewable decisions concerning the legal categories of obscenity. This Court has repeatedly required that those decisions be made by courts, not by administrative officials, even in the context of non-criminal proceedings. Blount v. Rizzi, 400 U.S. 410 (1971); Bantam Books v. Sullivan, 372 U.S. 58 (1963). Librarians have repeatedly disavowed any expertise in making these legal judgments and expressed certainty that the provision would result in arbitrary and inconsistent judgments by different individual librarians with different values and concerns. J.A. 124 (Cooper testimony).
Even more fundamentally, asking a librarian to unblock a site that may be illegal is vastly different than asking for help to find a book. When a book is in the library's catalogue, the library has sent the unmistakable signal to the patron that it will assist the patron in getting that book. When a patron attempts to access an Internet site and is presented with a message, "THIS SITE IS BLOCKED BY THE LIBRARY DUE TO FEDERAL LAW REQUIRING BLOCKING OF OBSCENITY AND OTHER ILLEGAL SPEECH," the patron is sent an equally unmistakable signal that the library disapproves of the site. The patron may not know that the decision to block the site was not made by a librarian, but by an employee of a software company in California. The patron may also not know that the software is astonishingly inaccurate. For example, if the software blocks the Republican National Committee Web site, the patron may wrongly conclude that the site is mis-named and is really a site with sexually explicit material. The deterrent effect of the disabling provisions thus far exceeds even the common reluctance of patrons to seek assistance.
CIPA is also an unconstitutional condition on the receipt of a federal benefit. See Board of County Comm'rs v. Umbehr, 518 U.S. 668, 674 (1996); Perry v. Sindermann, 408 U.S. 593, 597 (1972). The statute requires any library that participates in the e-rate or LSTA programs to install blocking software on "any of its computers with Internet access" during "any use of such computers." 20 U.S.C. 9134(f)(1)(B); 47 U.S.C. § 254(h)(6)(C) (emph. added). CIPA requires libraries to block speech even where Internet terminals are wholly funded by non-federal dollars. This Court invalidated exactly that practice in League of Women Voters, holding that the government may not use its spending power to bar grantees "from using even wholly private funds to finance its" expressive activity. 468 U.S. at 400.
Although the three-judge court did not rule on plaintiffs' unconstitutional conditions claim, it included a lengthy footnote analyzing the relevant cases. J.S. App. 180a-188a n.36. Because "the First Amendment is not phrased in terms of who holds the right, but rather what is protected," J.S. App. at 183a n.36, plaintiffs clearly have a valid unconstitutional conditions claim based on the First Amendment rights of their patrons.[5] See, e.g., Procunier v. Martinez, 416 U.S. 396, 409 (1974) (recognizing that First Amendment protects the right to receive information); Virginia v. American Booksellers Ass'n, 484 U.S. 383, 392-93 (1988) (booksellers have standing to sue on behalf of their customers); J.S. App. 188a n.36. As this Court has explained, "the question must be whether [the government is] abridg[ing] expression that the First Amendment was meant to protect." First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978). Contrary to the government's argument, then, it is irrelevant that CIPA imposes its conditions on libraries rather than on their patrons directly. Govt. Br. at 41. This Court has previously entertained unconstitutional conditions claims both by the organizations that receive federal funding and their constituents. See e.g., Velazquez, 531 U.S. at 537 (lawyers and clients sued to declare restriction on advocacy invalid); Rust v. Sullivan, 500 U.S. 173, 181 (1991) (doctors and patients sued to invalidate restriction on use of Title X funds); League of Women Voters, 468 U.S. at 370 n.6 (station owner and viewers sued to invalidate conditions on station's receipt of federal funds).
In Velazquez, the Court invalidated a restriction on funding because the program funded private speech, not governmental speech, and because the restriction distorted the traditional function of the medium. 531 U.S. at 544-45. Similarly, CIPA distorts the usual function of public libraries to provide uncensored access to information. The Legal Services Corporation ("LSC") was established to distribute federal funds to eligible local grantee organizations "for the purpose of providing financial support for legal assistance in noncriminal proceedings or matters to persons financially unable to afford legal assistance." Id. at 536. Congress, however, prohibited legal representation funded by recipients of LSC moneys if the representation involved an effort to amend or otherwise challenge existing welfare law. Id.
The Court held that this condition on the use of LSC funds violated the First Amendment rights of LSC grantees and their clients.[6] When the government "designs a program to facilitate private speech, and not to promote a governmental message," and "seeks to use an existing medium of expression and to control it . . . in ways which distort its usual functioning," the distorting restriction must be struck down. Id. at 534 ("[r]estricting LSC attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys"). See also League of Women Voters, 468 U.S. at 396-97 (prohibitions against editorializing by public radio networks were an impermissible restriction, even though the government enacted the restriction to control the use of public funds; First Amendment forbade the government from using the forum in an unconventional way to suppress speech inherent in the nature of the medium). When the government conversely "establishes a subsidy for specified ends," "certain restrictions may be necessary to define the limits and purposes of the program." Id. (citing, inter alia, Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, (1983); Rust v. Sullivan, 500 U.S. 173 (1991)).
CIPA seeks to distort an existing medium of expression at public libraries by requiring them 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.
J.S. App. 187a n.36. Like the improper effect of the funding restriction this Court invalidated in Velazquez, "[b]y 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." J.S. App. 187a n.36.
For the reasons stated above, the judgment of the three judge court should be affirmed.
Respectfully Submited,
[1] For example, one of the branches of the Portland, Oregon library stocks Russian language materials for its Russian émigré population. J.A. 81 (Cooper testimony).
[2] The government's argument that plaintiffs' expert testimony established only a 1% overblocking rate is a shocking mischaracterization of the evidence and the court's findings. Govt. Br. at 34-35. Edelman specifically testified that his research did not attempt to establish an overblocking percentage, due to the inherent difficulties of doing so. J.A. 296-306, 350-356 (Edelman testimony). The court itself issued detailed factual findings about those difficulties, J.S. App. 85a (accepting government argument that Edelman's results cannot be generalized beyond his 6,775 sites), and found that all of the evidence significantly underestimated the actual amount of overblocking. Id. at 85a-86a.
[3] The government also implies that under the three-judge court's rationale, there would be a "perverse incentive" for public libraries to make available less information to preserve their discretion. The government offered no evidence at trial to support the theory that libraries would offer access only to preselected sites if they could not mandate filters. Their own witnesses specifically rejected that approach. J.S. App. 42a.
[4] CIPA would clearly fail constitutional scrutiny even under rational basis review. There may be no better example of irrationality than mandated government use of a product that secretly categorizes and blocks a huge amount of speech that comes nowhere close to the type of content the law was intended to restrict
[5] Thus, this Court need not decide whether public libraries, as municipal entities, have their own independent First Amendment rights.
[6] Velasquez also condemned the program because it required viewpoint discrimination. 531 U.S. at 533, citing Board of Regents v. Southworth, 529 U.S. 217, 229 (2000). Because blocking programs make their censorship decisions in secret, there is no way to know whether they are viewpoint discriminatory. For example, blocking programs may block content targeted to the gay and lesbian community not because it is actually sexually explicit, but because the vendors disapprove of that lifestyle. The potential for viewpoint discrimination certainly adds to its constitutional defects. See Mainstream Loudoun, 24 F. Supp. 2d at 565-67.
