SUPREME COURT OF THE UNITED STATES
UNITED STATES, et al., APPELLANTS v. AMERICAN LIBRARY ASSOCIATION, INC., et al.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
June 23, 2003
Chief Justice Rehnquist announced the judgment of the Court and delivered an opinion, in which Justice O’Connor, Justice Scalia, and Justice Thomas joined.
To address the problems associated with the availability of Internet pornography in public libraries, Congress enacted the Children’s Internet Protection Act. Under CIPA, a public library may not receive federal assistance to provide Internet access unless it installs software to block images that constitute obscenity or child pornography, and to prevent minors from obtaining access to material that is harmful to them. The District Court held these provisions facially invalid on the ground that they induce public libraries to violate patrons’ First Amendment rights. We now reverse.
To help public libraries provide their patrons with Internet access, Congress offers two forms of federal assistance. First, the E-rate program established by the Telecommunications Act of 1996 entitles qualifying libraries to buy Internet access at a discount. Second, pursuant to the Library Services and Technology Act, the Institute of Museum and Library Services makes grants to state library administrative agencies to “electronically lin[k] libraries with educational, social, or information services,” “assis[t] libraries in accessing information through electronic networks,” and “pa[y] costs for libraries to acquire or share computer systems and telecommunications technologies.”These programs have succeeded greatly in bringing Internet access to public libraries: By 2000, 95% of the Nation’s libraries provided public Internet access....
By connecting to the Internet, public libraries provide patrons with a vast amount of valuable information. But there is also an enormous amount of pornography on the Internet, much of which is easily obtained. The accessibility of this material has created serious problems for libraries, which have found that patrons of all ages, including minors, regularly search for online pornography. Some patrons also expose others to pornographic images by leaving them displayed on Internet terminals or printed at library printers.
Upon discovering these problems, Congress became concerned that the E-rate and LSTA programs were facilitating access to illegal and harmful pornography.... But Congress also learned that filtering software that blocks access to pornographic Web sites could provide a reasonably effective way to prevent such uses of library resources. By 2000, before Congress enacted CIPA, almost 17% of public libraries used such software on at least some of their Internet terminals, and 7% had filters on all of them. A library can set such software to block categories of material, such as “Pornography” or “Violence.” When a patron tries to view a site that falls within such a category, a screen appears indicating that the site is blocked. But a filter set to block pornography may sometimes block other sites that present neither obscene nor pornographic material, but that nevertheless trigger the filter. To minimize this problem, a library can set its software to prevent the blocking of material that falls into categories like “Education,” “History,” and “Medical.” A library may also add or delete specific sites from a blocking category, and anyone can ask companies that furnish filtering software to unblock particular sites.
Responding to this information, Congress enacted CIPA. It provides that a library may not receive E-rate or LSTA assistance unless it has “a policy of Internet safety for minors that includes the operation of a technology protection measure … that protects against access” by all persons to “visual depictions” that constitute “obscen[ity]” or “child pornography,” and that protects against access by minors to “visual depictions” that are “harmful to minors.” The statute defines a “[t]echnology protection measure” as “a specific technology that blocks or filters Internet access to material covered by” CIPA. §254(h)(7)(I). CIPA also permits the library to “disable” the filter “to enable access for bona fide research or other lawful purposes.”Under the LSTA program, disabling is permitted during use by any person.
Appellees are a group of libraries, library associations, library patrons, and Web site publishers, including the American Library Association (ALA) and the Multnomah County Public Library in Portland, Oregon (Multnomah). They sued the United States and the Government agencies and officials responsible for administering the E-rate and LSTA programs in District Court, challenging the constitutionality of CIPA’s filtering provisions.....
Congress has wide latitude to attach conditions to the receipt of federal assistance in order to further its policy objectives. South Dakota v. Dole, 483 U.S. 203, 206 (1987). But Congress may not “induce” the recipient “to engage in activities that would themselves be unconstitutional.” To determine whether libraries would violate the First Amendment by employing the filtering software that CIPA requires we must first examine the role of libraries in our society.
Public libraries pursue the worthy missions of facilitating learning and cultural enrichment.... To fulfill their traditional missions, public libraries must have broad discretion to decide what material to provide to their patrons. Although they seek to provide a wide array of information, their goal has never been to provide “universal coverage.” Instead, public libraries seek to provide materials “that would be of the greatest direct benefit or interest to the community.” To this end, libraries collect only those materials deemed to have “requisite and appropriate quality.”
We have held in two analogous contexts that the government has broad discretion to make content-based judgments in deciding what private speech to make available to the public. In Arkansas Ed.Television Comm’n v. Forbes, 523 U.S. 666, 672—673 (1998), we held that public forum principles do not generally apply to a public television station’s editorial judgments regarding the private speech it presents to its viewers. Similarly, in National Endowment for Arts v. Finley, 524 U.S. 569 (1998), we upheld an art funding program that required the National Endowment for the Arts (NEA) to use content-based criteria in making funding decisions. We explained that “[a]ny content-based considerations that may be taken into account in the grant-making process are a consequence of the nature of arts funding....”
The principles underlying Forbes and Finley also apply to a public library’s exercise of judgment in selecting the material it provides to its patrons. Just as forum analysis and heightened judicial scrutiny are incompatible with the role of public television stations and the role of the NEA, they are also incompatible with the discretion that public libraries must have to fulfill their traditional missions. Public library staffs necessarily consider content in making collection decisions and enjoy broad discretion in making them.
The public forum principles on which the District Court relied are out of place in the context of this case. Internet access in public libraries is neither a “traditional” nor a “designated” public forum. First, this resource–which did not exist until quite recently–has not “immemorially been held in trust for the use of the public and, time out of mind, … been used for purposes of assembly, communication of thoughts between citizens, and discussing public questions.” We have “rejected the view that traditional public forum status extends beyond its historic confines.”
Nor does Internet access in a public library satisfy our definition of a “designated public forum.” To create such a forum, the government must make an affirmative choice to open up its property for use as a public forum.... The situation here is very different. A public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of books to speak. It provides Internet access, not to “encourage a diversity of views from private speakers,” but for the same reasons it offers other library resources: to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality....
A library’s need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worthwhile material; it is no less entitled to play that role when it collects material from the Internet than when it collects material from any other source. Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries’ judgments to block online pornography any differently, when these judgments are made for just the same reason....
The dissents fault the tendency of filtering software to “overblock”–that is, to erroneously block access to constitutionally protected speech that falls outside the categories that software users intend to block. Assuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled. When a patron encounters a blocked site, he need only ask a librarian to unblock it or (at least in the case of adults) disable the filter..... The District Court viewed unblocking and disabling as inadequate because some patrons may be too embarrassed to request them. But the Constitution does not guarantee the right to acquire information at a public library without any risk of embarrassment.
Appellees urge us to affirm the District Court’s judgment on the alternative ground that CIPA imposes an unconstitutional condition on the receipt of federal assistance. Under this doctrine, “the government ‘may not deny a benefit to a person on a basis that infringes his constitutionally protected … freedom of speech’ even if he has no entitlement to that benefit.” The Government counters that this claim fails because Government entities do not have First Amendment rights. We need not decide this question because, even assuming that appellees may assert an “unconstitutional conditions” claim, this claim would fail on the merits. Within broad limits, “when the Government appropriates public funds to establish a program it is entitled to define the limits of that program.” Rust v.Sullivan, 500 U.S. 173, 194 (1991)..... The E-rate and LSTA programs were intended to help public libraries fulfill their traditional role of obtaining material of requisite and appropriate quality for educational and informational purposes. Congress may certainly insist that these “public funds be spent for the purposes for which they were authorized.” Especially because public libraries have traditionally excluded pornographic material from their other collections, Congress could reasonably impose a parallel limitation on its Internet assistance programs. As the use of filtering software helps to carry out these programs, it is a permissible condition under Rust....
Appellees mistakenly contend, in reliance on Legal Services Corporation
v. Velazquez, 531 U.S. 533 (2001), that CIPA’s filtering conditions “[d]istor[t]
the [u]sual [f]unctioning of [p]ublic [l]ibraries.” In Velazquez, the Court
concluded that a Government program of furnishing legal aid to the indigent
differed from the program in Rust “[i]n th[e] vital respect” that the role
of lawyers who represent clients in welfare disputes is to advocate against
the Government, and there was thus an assumption that counsel would be
free of state control. The Court concluded that the restriction on advocacy
in such welfare disputes would distort the usual functioning of the legal
profession and the federal and state courts before which the lawyers appeared.
Public libraries, by contrast, have no comparable role that pits them against
the Government, and there is no comparable assumption that they must be
free of any conditions that their benefactors might attach to the use of
donated funds or other assistance....
Justice Kennedy, concurring in the judgment.
If some libraries do not have the capacity to unblock specific Web sites or to disable the filter or if it is shown that an adult user’s election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge, not the facial challenge made in this case.....
Stevens, J., dissenting
I agree with the plurality that the 7% of public libraries that decided to use such software on all of their Internet terminals in 2000 did not act unlawfully.Whether it is constitutional for the Congress of the United States to impose that requirement on the other 93%, however, raises a vastly different question. Rather than allowing local decisionmakers to tailor their responses to local problems, the Children’s Internet Protection Act (CIPA) operates as a blunt nationwide restraint on adult access to “an enormous amount of valuable information” that individual librarians cannot possibly review. Most of that information is constitutionally protected speech. In my view, this restraint is unconstitutional.
The unchallenged findings of fact made by the District Court reveal fundamental defects in the filtering software that is now available or that will be available in the foreseeable future. Because the software relies on key words or phrases to block undesirable sites, it does not have the capacity to exclude a precisely defined category of images.... Due to the reliance on automated text analysis and the absence of image recognition technology, a Web page with sexually explicit images and no text cannot be harvested using a search engine. This problem is complicated by the fact that Web site publishers may use image files rather than text to represent words, i.e., they may use a file that computers understand to be a picture, like a photograph of a printed word, rather than regular text, making automated review of their textual content impossible. For example, if the Playboy Web site displays its name using a logo rather than regular text, a search engine would not see or recognize the Playboy name in that logo.”
Given the quantity and ever-changing character of Web sites offering free sexually explicit material, it is inevitable that a substantial amount of such material will never be blocked. Because of this “underblocking,” the statute will provide parents with a false sense of security without really solving the problem that motivated its enactment. Conversely, the software’s reliance on words to identify undesirable sites necessarily results in the blocking of thousands of pages that “contain content that is completely innocuous for both adults and minors, and that no rational person could conclude matches the filtering companies’ category definitions, such as ‘pornography’ or ‘sex.’ ”In my judgment, a statutory blunderbuss that mandates this vast amount of “overblocking” abridges the freedom of speech protected by the First Amendment.
The effect of the overblocking is the functional equivalent of a host of individual decisions excluding hundreds of thousands of individual constitutionally protected messages from Internet terminals located in public libraries throughout the Nation. Neither the interest in suppressing unlawful speech nor the interest in protecting children from access to harmful materials justifies this overly broad restriction on adult access to protected speech. “The Government may not suppress lawful speech as the means to suppress unlawful speech.....”
Although CIPA does not permit any experimentation, the District Court
expressly found that a variety of alternatives less restrictive are available
at the local level: “[L]ess 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.”
The plurality does not reject any of those findings. Instead, “[a]ssuming that such erroneous blocking presents constitutional difficulties,” it relies on the Solicitor General’s assurance that the statute permits individual librarians to disable filtering mechanisms whenever a patron so requests. In my judgment, that assurance does not cure the constitutional infirmity in the statute.
Until a blocked site or group of sites is unblocked, a patron is unlikely to know what is being hidden and therefore whether there is any point in asking for the filter to be removed. It is as though the statute required a significant part of every library’s reading materials to be kept in unmarked, locked rooms or cabinets, which could be opened only in response to specific requests. Some curious readers would in time obtain access to the hidden materials, but many would not. Inevitably, the interest of the authors of those works in reaching the widest possible audience would be abridged.....
The plurality incorrectly argues that the statute does not impose “an unconstitutional condition on public libraries.” On the contrary, it impermissibly conditions the receipt of Government funding on the restriction of significant First Amendment rights....
A federal statute penalizing a library for failing to install filtering software on every one of its Internet-accessible computers would unquestionably violate that Amendment. I think it equally clear that the First Amendment protects libraries from being denied funds for refusing to comply with an identical rule. An abridgment of speech by means of a threatened denial of benefits can be just as pernicious as an abridgment by means of a threatened penalty.
Our cases holding that government employment may not be conditioned on the surrender of rights protected by the First Amendment illustrate the point.....The issue in this case does not involve governmental attempts to control the speech or views of its employees. It involves the use of its treasury to impose controls on an important medium of expression. In an analogous situation, we specifically held that when “the 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 distorting restriction must be struck down under the First Amendment. Legal Services Corporation v. Velazquez, 531 U.S. 533, 543 (2001). The question, then, is whether requiring the filtering software on all Internet-accessible computers distorts that medium. As I have discussed above, the over- and underblocking of the software does just that.
The plurality argues that the controversial decision in Rust v. Sullivan
(1991), requires rejection of appellees’ unconstitutional conditions claim.
But, as subsequent cases have explained, Rust only involved and only applies
to instances of governmental speech–that is, situations in which the government
seeks to communicate a specific message. The discounts under the E-rate
program and funding under the Library Services and Technology Act (LSTA) program involved in this case do not subsidize any message favored by the Government.....
The plurality’s reliance on National Endowment for Arts v. Finley (1998), is also misplaced. That case involved a challenge to a statute setting forth the criteria used by a federal panel of experts administering a federal grant program. Unlike this case, the Federal Government was not seeking to impose restrictions on the administration of a nonfederal program....Further, like a library, the NEA experts in Finley had a great deal of discretion to make judgments as to what projects to fund. But unlike this case, Finley did not involve a challenge by the NEA to a governmental restriction on its ability to award grants. Instead, the respondents were performance artists who had applied for NEA grants but were denied funding. If this were a case in which library patrons had challenged a library’s decision to install and use filtering software, it would be in the same posture as Finley. Because it is not, Finley does not control this case.....
This Court should not permit federal funds to be used to enforce this kind of broad restriction of First Amendment rights, particularly when such a restriction is unnecessary to accomplish Congress’ stated goal. The abridgment of speech is equally obnoxious whether a rule like this one is enforced by a threat of penalties or by a threat to withhold a benefit.
Justice Souter, with whom Justice Ginsburg joins, dissenting.
I agree in the main with Justice Stevens that the blocking requirements of the Children’s Internet Protection Act impose an unconstitutional condition on the Government’s subsidies to local libraries for providing access to the Internet. I also agree with the library appellees on a further reason to hold the blocking rule invalid in the exercise of the spending power under Article I, §8: the rule mandates action by recipient libraries that would violate the First Amendment’s guarantee of free speech if the libraries took that action entirely on their own. I respectfully dissent on this further ground....
The question for me, then, is whether a local library could itself constitutionally impose these restrictions on the content otherwise available to an adult patron through an Internet connection, at a library terminal provided for public use. The answer is no. A library that chose to block an adult’s Internet access to material harmful to children (and whatever else the undiscriminating filter might interrupt) would be imposing a content-based restriction on communication of material in the library’s control that an adult could otherwise lawfully see. This would simply be censorship. True, the censorship would not necessarily extend to every adult, for an intending Internet user might convince a librarian that he was a true researcher or had a “lawful purpose” to obtain everything the library’s terminal could provide. But as to those who did not qualify for discretionary unblocking, the censorship would be complete and, like all censorship by an agency of the Government, presumptively invalid owing to strict scrutiny in implementing the Free Speech Clause of the First Amendment.....
Exploring Constitutional Conflicts