Children's Internet Protection Act (CIPA) Ruling Part 6

The more broadly the government facilitates private speech, however, the less deference the First Amendment accords to the government's content-based restrictions on the speech that it facilitates. Thus, where the government creates a designated public forum to facilitate private speech representing a diverse range of viewpoints, the government's decision selectively to single out particular viewpoints for exclusion is subject to strict scrutiny. Compare Rosenberger, 515 U.S. at 834 (applying heightened First Amendment scrutiny to viewpoint-based restrictions on the use of a limited public forum where the government "does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers"), with Finley, 524 U.S.

at 586 ("In the context of arts funding, in contrast to many other subsidies, the Government does not indiscriminately encourage a diversity of views from private speakers.") (internal quotation marks and citation omitted).

Similarly, although the government may create a designated public forum limited to speech on a particular topic, if the government opens the forum to members of the general public to speak on that topic while selectively singling out for exclusion particular speakers on the basis of the content of their speech, that restriction is subject to strict scrutiny. For instance, in City of Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission, 429 U.S. 167 (1976), the Court held that where a school board opens its meetings for public partic.i.p.ation, it may not, consistent with the First Amendment, prohibit teachers other than union representatives from speaking on the subject of pending collective-bargaining negotiations.

See id. at 175 (noting that the state "has opened a forum for direct citizen involvement"); see also Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 680 (1998) (distinguishing, for purposes of determining the appropriate level of First Amendment scrutiny, a televised debate in which a public broadcasting station exercises editorial discretion in selecting partic.i.p.ating candidates from a debate that has "an open-microphone format").

Finally, content-based restrictions on speech in a designated public forum are most clearly subject to strict scrutiny when the government opens a forum for virtually unrestricted use by the general public for speech on a virtually unrestricted range of topics, while selectively excluding particular speech whose content it disfavors. Thus, in Conrad, the Court held that a local government violated the First Amendment when it denied a group seeking to perform the rock musical "Hair" access to a general-purpose munic.i.p.al theater open for the public at large to use for performances. See also Denver, 518 U.S. at 802 (Kennedy, J., concurring in the judgment) (suggesting that strict scrutiny would not apply to a local government's decision to "build[] a band sh.e.l.l in the park and dedicate[] it solely to cla.s.sical music (but not jazz)," but would apply to "the Government's creation of a band sh.e.l.l in which all types of music might be performed except for rap music").

Similarly, in FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984), the Court subjected to heightened scrutiny a federal program that funded a wide range of public broadcasting stations that disseminated speech on a wide range of subjects, where the federal program singled out for exclusion speech whose content amounted to editorializing. As the Court later explained: In FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984) the Court was instructed by its understanding of the dynamics of the broadcast industry in holding that 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. The First Amendment forbade the Government from using the forum in an unconventional way to suppress speech inherent in the nature of the medium.

Velazquez, 531 U.S. at 543.

In sum, the more widely the state opens a forum for members of the public to speak on a variety of subjects and viewpoints, the more vulnerable is the state's decision selectively to exclude certain speech on the basis of its disfavored content, as such exclusions distort the marketplace of ideas that the state has created in establishing the forum. Cf. Velazquez, 531 U.S.

at 544 ("Restricting LSC attorneys in advising their clients and in presenting arguments and a.n.a.lyses to the courts distorts the legal system by altering the traditional role of the attorneys in much the same way broadcast systems or student publication networks were changed in the limited forum cases . . . .").

Thus, we believe that where the state designates a forum for expressive activity and opens the forum for speech by the public at large on a wide range of topics, strict scrutiny applies to restrictions that single out for exclusion from the forum particular speech whose content is disfavored. "Laws designed or intended to suppress or restrict the expression of specific speakers contradict basic First Amendment principles." United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 812 (2000); see also Denver, 518 U.S. at 782 (Kennedy, J., concurring in the judgment) (noting the flaw in a law that "singles out one sort of speech for vulnerability to private censorship in a context where content-based discrimination is not otherwise permitted").

Compare Forbes, 523 U.S. at 679 (holding that the state does not create a public forum when it "allows selective access for individual speakers rather than general access for a cla.s.s of speakers") (emphasis added), with Police Dep't of the City of Chicago v. Mosley, 408 U.S. 92, 96 (1972) ("Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.") (emphasis added).

We note further that to the extent that the government creates a public forum expressly designed to facilitate the dissemination of private speech, opens the forum to any member of the public to speak on any virtually any topic, and then selectively targets certain speech for exclusion based on its content, the government is singling out speech in a manner that resembles the discriminatory taxes on the press that the Supreme Court subjected to heightened First Amendment scrutiny in Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987), and Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983), which we explain in the margin.

4. Reasons for Applying Strict Scrutiny

1. Selective Exclusion From a "Vast Democratic Forum"

Applying these principles to public libraries, we agree with the government that generally the First Amendment subjects libraries' content-based decisions about which print materials to acquire for their collections to only rational review. In making these decisions, public libraries are generally free to adopt collection development criteria that reflect not simply patrons'

demand for certain material, but also the library's evaluation of the material's quality. See Bernard W. Bell, Filth, Filtering, and the First Amendment: Ruminations on Public Libraries' Use of Internet Filtering Software, 53 Fed. Comm. L.J. 191, 225 (2001) ("Librarians should have the discretion to decide that the library is committed to intellectual inquiry, not to the satisfaction of the full range of human desires."). Thus, a public library's decision to use the last $100 of its budget to purchase the complete works of Shakespeare even though more of its patrons would prefer the library to use the same amount to purchase the complete works of John Grisham, is not, in our view, subject to strict scrutiny. Cf. NEA v. Finley, 524 U.S. 569 (1998) (subjecting only to rational basis review the government's decision to award NEA grants on the basis of, inter alia, artistic excellence).

Nonetheless, we disagree with the government's argument that public libraries' use of Internet filters is no different, for First Amendment purposes, from the editorial discretion that they exercise when they choose to acquire certain books on the basis of librarians' evaluation of their quality. The central difference, in our view, is that by providing patrons with even filtered Internet access, the library permits patrons to receive speech on a virtually unlimited number of topics, from a virtually unlimited number of speakers, without attempting to restrict patrons' access to speech that the library, in the exercise of its professional judgment, determines to be particularly valuable. Cf. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 834 (1995) (applying strict scrutiny to viewpoint-based restrictions where the state "does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers"). See generally supra Section IV.C.

In those cases upholding the government's exercise of editorial discretion in selecting certain speech for subsidization or inclusion in a state-created forum, the state actor exercising the editorial discretion has at least reviewed the content of the speech that the forum facilitates. Thus, in Finley the NEA examined the content of those works of art that it chose to subsidize, and in Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998), the public broadcaster specifically reviewed and approved each speaker permitted to partic.i.p.ate in the debate. See id. at 673 ("In the case of television broadcasting, . . . broad rights of access for outside speakers would be ant.i.thetical, as a general rule, to the discretion that stations and their editorial staff must exercise to fulfill their journalistic purpose and statutory obligations."); Finley, 524 U.S. at 586 ("The NEA's mandate is to make esthetic judgments, and the inherently content-based 'excellence' threshold for NEA support sets it apart from the subsidy at issue in Rosenberger which was available to all student organizations that were 'related to the educational purpose of the University . . . .'") (quoting Rosenberger, 515 U.S. at 824); see also Cornelius v. NAACP Legal Def. & Educ.

Fund, 473 U.S. 788, 804 (1985) ("The Government's consistent policy has been to limit partic.i.p.ation in the [Combined Federal Campaign] to 'appropriate' voluntary agencies and to require agencies seeking admission to obtain permission from federal and local Campaign officials. . . . [T]here is no evidence suggesting that the granting of the requisite permission is merely ministerial."). The essence of editorial discretion requires the exercise of professional judgment in examining the content that the government singles out as speech of particular value.

This exercise of editorial discretion is evident in a library's decision to acquire certain books for its collection.

As the government's experts in library science testified, in selecting a book for a library's collection, librarians evaluate the book's quality by reference to a variety of criteria such as its accuracy, the t.i.tle's niche in relation to the rest of the collection, the authority of the author, the publisher, the work's presentation, and how it compares with other material available in the same genre or on the same subject. Thus, the content of every book that a library acquires has been reviewed by the library's collection development staff or someone to whom they have delegated the task, and has been judged to meet the criteria that form the basis for the library's collection development policy. Although some public libraries use "approval plans" to delegate the collection development to third-party vendors which provide the library with recommended materials that the library is then free to retain or return to the vendor, the same principle nonetheless attains.

In contrast, in providing patrons with even filtered Internet access, a public library invites patrons to access speech whose content has never been reviewed and recommended as particularly valuable by either a librarian or a third party to whom the library has delegated collection development decisions.

Although several of the government's librarian witnesses who testified at trial purport to apply the same standards that govern the library's acquisition of print materials to the library's provision of Internet access to patrons, when 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. Unless a library allows access to only those sites that have been preselected as having particular value, a method that, as noted above, was tried and rejected by the Westerville Ohio Public Library, see supra at 46-47, even a library that uses software filters has opened its Internet collection "for indiscriminate use by the general public." Perry Educ. a.s.s'n v. Perry Local Educs. a.s.s'n, 460 U.S. 37, 47 (1983).

"[M]ost Internet forums including chat rooms, newsgroups, mail exploders, and the Web are open to all comers." Reno v. ACLU, 521 U.S. 844, 880 (1997).

The fundamental difference between a library's print collection and its provision of Internet access is ill.u.s.trated by comparing the extent to which the library opens its print collection to members of the public to speak on a given topic and the extent to which it opens its Internet terminals to members of the public to speak on a given topic. When a public library chooses to carry books on a selected topic, e.g. chemistry, it does not open its print collection to any member of the public who wishes to write about chemistry. Rather, out of the myriad of books that have ever been written on chemistry, each book on chemistry that the library carries has been reviewed and selected because the person reviewing the book, in the exercise of his or her professional judgment, has deemed its content to be particularly valuable. In contrast, when a public library provides Internet access, even filtered Internet access, it has created a forum open to any member of the public who writes about chemistry on the Internet, regardless of how unscientific the author's methods or of how patently false the author's conclusions are, regardless of the author's reputation or grammar, and regardless of the reviews of the scientific community.

Notwithstanding protestations in c.i.p.a's legislative history to the contrary, members of the general public do define the content that public libraries make available to their patrons through the Internet. Any member of the public with Internet access could, through the free Web hosting services available on the Internet, tonight jot down a few musings on any subject under the sun, and tomorrow those musings would become part of public libraries' online offerings and be available to any library patron who seeks them out.

In providing its patrons with Internet access, a public library creates a forum for the facilitation of speech, almost none of which either the library's collection development staff or even the filtering companies have ever reviewed. Although filtering companies review a portion of the Web in cla.s.sifying particular sites, the portion of the Web that the filtering companies actually review is quite small in relation to the Web as a whole. The filtering companies' harvesting process, described in our findings of fact, is intended to identify only a small fraction of Web sites for the filtering companies to review. Put simply, the state cannot be said to be exercising editorial discretion permitted under the First Amendment when it indiscriminately facilitates private speech whose content it makes no effort to examine. Cf. Bell, supra, at 226 ("[C]ourts should take a much more jaundiced view of library policies that block Internet access to a very limited array of subjects than they take of library policies that reserve Internet terminals for very limited use.").

While the First Amendment permits the government to exercise editorial discretion in singling out particularly favored speech for subsidization or inclusion in a state-created forum, we believe that where the state provides access to a "vast democratic forum[]," Reno, 521 U.S. at 868, open to any member of the public to speak on subjects "as diverse as human thought,"

id. at 870, and then selectively excludes from the forum certain speech on the basis of its content, such exclusions are subject to strict scrutiny. These exclusions risk fundamentally distorting the unique marketplace of ideas that public libraries create when they open their collections, via the Internet, to the speech of millions of individuals around the world on a virtually limitless number of subjects.

A public library's content-based restrictions on patrons'

Internet access thus resemble the content-based restrictions on speech subsidized by the government, whether through direct funding or through the creation of a designated public forum, that the Supreme Court has subjected to strict scrutiny, as discussed above in Section IV.C. Although the government may subsidize a particular message representing the government's viewpoint without having to satisfy strict scrutiny, see Rust v.

Sullivan, 500 U.S. 173 (1991), strict scrutiny applies to restrictions that selectively exclude particular viewpoints from a public forum designed to facilitate a wide range of viewpoints, see Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.

819 (1995). Similarly, although the state's exercise of editorial discretion in selecting particular speakers for partic.i.p.ation in a state-sponsored forum is subject to rational basis review, see Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666 (1998), selective exclusions of particular speakers from a forum otherwise open to any member of the public to speak are subject to strict scrutiny, see City of Madison Joint School Dist. No. 8 v. Wis. Employment Relations Comm'n, 429 U.S. 167 (1976).

And while the government may, subject only to rational basis review, make content-based decisions in selecting works of artistic excellence to subsidize, see NEA v. Finley, 524 U.S. 569 (1998), the Supreme Court has applied heightened scrutiny where the government opens a general-purpose munic.i.p.al theater for use by the public, but selectively excludes disfavored content, see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975), where the government facilitates the speech of public broadcasters on a virtually limitless number of topics, but prohibits editorializing, see FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984), and where the government funds a wide range of legal services but restricts funding recipients from challenging welfare laws, see Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001). Similarly, where a public library opens a forum to an unlimited number of speakers around the world to speak on an unlimited number of topics, strict scrutiny applies to the library's selective exclusions of particular speech whose content the library disfavors.

2. a.n.a.logy to Traditional Public Fora

Application of strict scrutiny to public libraries' use of software filters, in our view, finds further support in the extent to which public libraries' provision of Internet access promotes First Amendment values in an a.n.a.logous manner to traditional public fora, such as sidewalks and parks, in which content-based restrictions on speech are always subject to strict scrutiny. The public library, by its very nature, is "designed for freewheeling inquiry." Bd. of Education v. Pico, 457 U.S.

853, 915 (1982) (Rehnquist, J., dissenting). As such, the library is a "mighty resource in the free marketplace of ideas,"

Minarcini v. Strongsville City Sch. Dist., 541 F.2d 577, 582 (6th Cir. 1976), and represents a "quintessential locus of the receipt of information." Kreimer v. Bureau of Police for Morristown, 958 F.2d 1242, 1255 (3d Cir. 1992); see also 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 . . . ."); cf. Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 681 (1992) ("[A]

traditional public forum is property that has as 'a princ.i.p.al purpose . . . the free exchange of ideas.'") (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800 (1985)).

We acknowledge that the provision of Internet access in a public library does not enjoy the historical pedigree of streets, sidewalks, and parks as a vehicle of free expression.

Nonetheless, we believe that it shares many of the characteristics of these traditional public fora that uniquely promote First Amendment values and accordingly warrant application of strict scrutiny to any content-based restriction on speech in these fora. Regulation of speech in streets, sidewalks, and parks is subject to the highest scrutiny not simply by virtue of history and tradition, but also because the speech-facilitating character of sidewalks and parks makes them distinctly deserving of First Amendment protection. Many of these same speech-promoting features of the traditional public forum appear in public libraries' provision of Internet access.

First, public libraries, like sidewalks and parks, are generally open to any member of the public who wishes to receive the speech that these fora facilitate, subject only to narrow limitations. See Kreimer, 958 F.2d at 1260 (noting that a public library does not retain unfettered discretion "to choose whom it will permit to enter the Library," but upholding the library's right to exclude patrons who hara.s.s patrons or whose offensive personal hygiene precludes the library's use by other patrons).

Moreover, like traditional public fora, public libraries are funded by taxpayers and therefore do not charge members of the public each time they use the forum. The only direct cost to library patrons who wish to receive information, whether via the Internet or the library's print collection, is the time spent reading.

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. See generally National Telecommunications and Information Administration, U.S. Department of Commerce, Falling Through the Net: Defining the Digital Divide (1999), available at http://www.ntia.doc.gov/ntiahome/fttn99/contents.html. Cf.

Velazquez, 531 U.S. at 546 (invalidating a content-based restriction on the speech of federally funded legal services corporations and noting that given the financial hardship of legal services corporations' clients, "[t]he restriction on speech is even more problematic because in cases where the attorney withdraws from a representation, the client is unlikely to find other counsel"). Public libraries that provide Internet access greatly expand the educational opportunities for millions of Americans who, as explained in the margin, would otherwise be deprived of the benefits of this new medium.

Just as important as the openness of a forum to listeners is its openness to speakers. Parks and sidewalks are paradigmatic loci of First Amendment values in large part because they permit speakers to communicate with a wide audience at low cost. One can address members of the public in a park for little more than the cost of a soapbox, and one can distribute handbills on the sidewalk for little more than the cost of a pen, paper, and some photocopies. See Martin v. City of Struthers, 319 U.S. 141, 146 (1943) ("Door to door distribution of circulars is essential to the poorly financed causes of little people."); Laurence H.

Tribe, American Const.i.tutional Law Sec. 12-24 at 987 (2d ed. 1988) ("The 'public forum' doctrine holds that restrictions on speech should be subject to higher scrutiny when, all other things being equal, that speech occurs in areas playing a vital role in communication such as in those places historically a.s.sociated with first amendment activities, such as streets, sidewalks, and parks especially because of how indispensable communication in these places is to people who lack access to more elaborate (and more costly) channels."); Daniel A. Farber, Free Speech without Romance: Public Choice and the First Amendment, 105 Harv. L. Rev.

554, 574 n.86 (1991) (noting that traditional public fora "are often the only place where less affluent groups and individuals can effectively express their message"); Harry Kalven, Jr., The Concept of the Public Forum: c.o.x v. Louisiana, 1965 Sup. Ct. Rev.

1, 30 ("[T]he parade, the picket, the leaflet, the sound truck, have been the media of communication exploited by those with little access to the more genteel means of communication.").

Similarly, given the existence of message boards and free Web hosting services, a speaker can, via the Internet, address the public, including patrons of public libraries, for little more than the cost of Internet access. As the Supreme Court explained in Reno v. ACLU, 521 U.S. 844 (1997), "the Internet can hardly be considered a 'scarce' expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds." Id. at 870. Although the cost of a home computer and Internet access considerably exceeds the cost of a soapbox or a few hundred photocopies, speakers wishing to avail themselves of the Internet may gain free access in schools, workplaces, or the public library. As Professor Lessig has explained: The "press" in 1791 was not the New York Times or the Wall Street Journal. It did not comprise large organizations of private interests, with millions of readers a.s.sociated with each organization. Rather, the press then was much like the Internet today. The cost of a printing press was low, the readership was slight, and anyone (within reason) could become a publisher and in fact an extraordinary number did. When the Const.i.tution speaks of the rights of the "press," the architecture it has in mind is the architecture of the Internet.

Lawrence Lessig, Code 183 (1999).

While public libraries' provision of Internet access shares many of the speech-promoting qualities of traditional public fora, it also facilitates speech in ways that traditional public fora cannot. In particular, whereas the architecture of real s.p.a.ce limits the audience of a pamphleteer or soapbox orator to people within the speaker's immediate vicinity, the Internet renders the geography of speaker and listener irrelevant: 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 . 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.

Due to the low costs for speakers and the irrelevance of geography, the volume of speech available to library patrons on the Internet is enormous and far exceeds the volume of speech available to audiences in traditional public fora. See id. at 868 (referring to "the vast democratic forums of the Internet").

Indeed, as noted in our findings of fact, the Web is estimated to contain over one billion pages, and is said to be growing at a rate of over 1.5 million pages per day. See id. at 885 (noting "[t]he dramatic expansion of this new marketplace of ideas").

This staggering volume of content on the Internet "is as diverse as human thought," id. at 870, and "is thus comparable, from the reader's viewpoint, to . . . a vast library including millions of readily available and indexed publications," id. at 853. As a result of the Internet's unique speech-facilitating qualities, "it is hard to find an aspiring social movement, new or old, of left, right, or center, without a website, a bulletin board, and an email list." Kreimer, supra n.27, at 125. "[T]he growth of the Internet has been and continues to be phenomenal." Reno, 521 U.S. at 885.