539 U.S. 194 (2003)
In 1996 Congress created the E-rate program under the Telecommunications Act, entitling qualifying public libraries to discounted Internet access.1 Libraries received $58.5 million in such discounts in the year ending June 30, 2002.2 Under the Library Services and Technology Act, Congress appropriated more than $149 million in grants in fiscal year 2002.3 By 2000, 95 percent of the Nation's libraries provided public Internet access.4
Congress learned that patrons of all ages, including minors, regularly accessed online pornography on library computers.5 Some patrons exposed others to pornographic images left on terminals or printed at library printers.6 By 2000, before CIPA's enactment, almost 17 percent of public libraries used filtering software on at least some terminals and 7 percent used it on all terminals.7
In response, Congress enacted the Children's Internet Protection Act in 2000.8 CIPA conditions receipt of E-rate discounts and LSTA grants on a library's adoption of an Internet safety policy that includes technology protection measures blocking visual depictions that are obscene, constitute child pornography, or are harmful to minors.9 CIPA defines a technology protection measure as software that blocks or filters access to the covered material.10 It permits a library to disable the filter to enable access for bona fide research or other lawful purposes.11 Under the E-rate program disabling is permitted during adult use.12
Appellees, a group that included the American Library Association, the Multnomah County Public Library, library patrons, and Web site publishers, sued the United States and the Government agencies and officials responsible for administering the E-rate and LSTA programs in the United States District Court for the Eastern District of Pennsylvania.13 A three-judge District Court was convened pursuant to section 1741(a) of CIPA.14 After trial, the District Court ruled that CIPA was facially unconstitutional.15 It enjoined the United States and the Government agencies and officials responsible for administering the E-rate and LSTA programs from withholding federal assistance for failure to comply with CIPA.16 The Supreme Court noted probable jurisdiction.17
Whether the Children's Internet Protection Act's conditioning of federal library assistance on the installation of filtering software violates the First Amendment?18
Congress has wide latitude to attach conditions to the receipt of federal assistance to further its policy objectives, but may not induce the recipient to engage in activities that would themselves be unconstitutional.19 Public libraries pursue the worthy missions of facilitating learning and cultural enrichment and must have broad discretion to decide what material to provide to their patrons, collecting only those materials deemed to have requisite and appropriate quality.20
No. The E-rate program under the Telecommunications Act of 1996 and LSTA grants provide federal assistance to public libraries for Internet access, with libraries receiving $58.5 million in discounts in the year ending June 30, 2002, and more than $149 million in LSTA grants in fiscal year 2002.21 By 2000, 95 percent of the Nation's libraries provided public Internet access. Congress learned that patrons of all ages, including minors, regularly accessed online pornography on library computers and that some patrons exposed others to pornographic images.22 CIPA conditions receipt of this assistance on adoption of an Internet safety policy that includes technology protection measures blocking visual depictions that are obscene, constitute child pornography, or are harmful to minors.23
Public libraries traditionally exclude pornography from their print collections, and the filtering software is consistent with that exercise of judgment in selecting materials of requisite and appropriate quality.24 The statute permits disabling the filter during adult use for bona fide research or other lawful purposes, and libraries have the capacity to permanently unblock erroneously blocked sites upon patron request.25
CIPA does not violate the First Amendment because it is a valid exercise of Congress's spending power that does not induce libraries to violate patrons' constitutional rights.26
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If on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay, there is little to this case.27 The Government represents this is indeed the fact.28 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.29
There are, of course, substantial Government interests at stake here.30 The interest in protecting young library users from material inappropriate for minors is legitimate and even compelling, as all Members of the Court appear to agree.31 Given this interest and the failure to show that the ability of adult library users to have access to the material is burdened in any significant degree, the statute is not unconstitutional on its face.32
The Act's restrictions satisfy these constitutional demands.33 The Act seeks to restrict access to obscenity, child pornography, and in respect to access by minors material that is comparably harmful.34 These objectives are legitimate and indeed often compelling.35
As the District Court found, software filters provide a relatively cheap and effective means of furthering these goals.36 Due to present technological limitations, however, the software filters both overblock, screening out some perfectly legitimate material, and underblock, allowing some obscene material to escape detection by the filter.37 But no one has presented any clearly superior or better fitting alternatives.38
At the same time, the Act contains an important exception that limits the speech-related harm that overblocking might cause.39 As the plurality points out, the Act allows libraries to permit any adult patron access to an over-blocked Web site. The adult patron need only ask a librarian to unblock the specific Web site or, alternatively, ask the librarian, Please disable the entire filter.40 The Act does impose upon the patron the burden of making this request.41
But it is difficult to see how that burden or any delay associated with compliance could prove more onerous than traditional library practices associated with segregating library materials in, say, closed stacks, or with interlibrary lending practices that require patrons to make requests that are not anonymous and to wait while the librarian obtains the desired materials from elsewhere.42 Given the comparatively small burden that the Act imposes upon the library patron seeking legitimate Internet materials, I cannot say that any speech-related harm that the Act may cause is disproportionate when considered in relation to the Act's legitimate objectives.43
Whether Internet access provided by public libraries constitutes a traditional or designated public forum?44
Internet access in public libraries is neither a traditional nor a designated public forum.45 To create a designated public forum the government must make an affirmative choice to open up its property for use as a public forum.46 The government does not create a public forum by inaction or by permitting limited discourse but only by intentionally opening a non-traditional forum for public discourse.47 A public library does not acquire Internet terminals to create a public forum for Web publishers to express themselves any more than it collects books to provide a public forum for the authors of books to speak.48
No. Internet access in public libraries is neither a traditional nor a designated public forum. This resource which did not exist until quite recently has not immemorially been held in trust for the use of the public and therefore cannot be a traditional public forum.49 Nor does Internet access in a public library satisfy the definition of a designated public forum.50 A public library does not acquire Internet terminals to create a public forum for Web publishers to express themselves any more than it collects books 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.51 The situation here is very different from a university student activities fund that subsidized student publications.52
Internet access provided by public libraries does not constitute a traditional or designated public forum so public forum principles and strict scrutiny do not apply.53
Whether CIPA imposes an unconstitutional condition on the receipt of federal E-rate and LSTA funding?54
Within broad limits when the Government appropriates public funds to establish a program it is entitled to define the limits of that program.55 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.56 Congress may insist that these public funds be spent for the purposes for which they were authorized.57
No. 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 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.58 As the use of filtering software helps to carry out these programs, it is a permissible condition.59
CIPA does not penalize libraries that choose not to install such software or deny them the right to provide their patrons with unfiltered Internet access.60 Rather, CIPA simply reflects Congress's decision not to subsidize their doing so.61 To the extent that libraries wish to offer unfiltered access, they are free to do so without federal assistance.62
CIPA does not impose an unconstitutional condition on the receipt of federal E-rate and LSTA funding.63
Related opinions on this issue
The plurality incorrectly argues that the statute does not impose an unconstitutional condition on public libraries.64 On the contrary, it impermissibly conditions the receipt of Government funding on the restriction of significant First Amendment rights.65 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.66
I think it equally clear that the First Amendment protects libraries from being denied funds for refusing to comply with an identical rule.67 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.68 The issue in this case does not involve governmental attempts to control the speech or views of its employees.69
It involves the use of its treasury to impose controls on an important medium of expression.70 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.71 The question then is whether requiring the filtering software on all Internet-accessible computers distorts that medium.72
As discussed above, the over- and underblocking of the software does just that.73
Whether the overblocking and underblocking tendencies of filtering software render CIPA's requirements facially invalid?74
Assuming that erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled.75 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.76 Libraries have the capacity to permanently unblock any erroneously blocked site.77 The Constitution does not guarantee the right to acquire information at a public library without any risk of embarrassment.78
No. Due to the software's limitations, many erroneously blocked Web pages 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.79 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. Libraries have the capacity to permanently unblock any erroneously blocked site and the Solicitor General stated at oral argument that a library may eliminate the filtering with respect to specific sites at the request of a patron.80
With respect to adults, CIPA also expressly authorizes library officials to disable a filter altogether to enable access for bona fide research or other lawful purposes.81 The Solicitor General confirmed that a librarian can in response to a request from a patron unblock the filtering mechanism altogether and further explained that a patron would not have to explain why he was asking a site to be unblocked or the filtering to be disabled.82 The District Court viewed unblocking and disabling as inadequate because some patrons may be too embarrassed to request them.83 But the Constitution does not guarantee the right to acquire information at a public library without any risk of embarrassment.84
The overblocking and underblocking tendencies of filtering software do not render CIPA's requirements facially invalid.85
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Joined by Justice Ginsburg
We therefore have to take the statute on the understanding that adults will be denied access to a substantial amount of nonobscene material harmful to children but lawful for adult examination, and a substantial quantity of text and pictures harmful to no one.86 As the plurality concedes, this is the inevitable consequence of the indiscriminate behavior of current filtering mechanisms which screen out material to an extent known only by the manufacturers of the blocking software.87 We likewise have to examine the statute on the understanding that the restrictions on adult Internet access have no justification in the object of protecting children.88
Children could be restricted to blocked terminals, leaving other unblocked terminals in areas restricted to adults and screened from casual glances.89 And, of course, the statute could simply have provided for unblocking at adult request with no questions asked.90 The statute could, in other words, have protected children without blocking access for adults or subjecting adults to anything more than minimal inconvenience, just the way the record shows many librarians had been dealing with obscenity and indecency before imposition of the federal conditions.91
Instead, the Government's funding conditions engage in overkill to a degree illustrated by their refusal to trust even a library's staff with an unblocked terminal, one to which the adult public itself has no access.92 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.93 The answer is no.94 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.9596
This would simply be censorship.97