*1 UNITED STATES et al. v. AMERICAN LIBRARY
ASSOCIATION, INC., еt al. No. 02-361. Argued March 2008 Decided June *4 delivered and of the Court J., judgment Rehnquist, C. announced JJ., Ken- joined. Thomas, and O’Connor, Scalia, an which opinion, in concurring opinions filed J., p. BREYER, J., post, nedy, post, p. and 220. dissenting post, p. J., opinion, in filed a Stevens, the judgment. &INSBURG, J., joined, in SOUTER, J., which dissenting opinion, filed a post, p. 231. for
Solicitor General Olson argued cause appellants. Attorney General Assistant With were him on the briefs Deputy McCollum, Solicitor General Irving Kneedler, L. Gornstein, Herwig, L. Barbara and Jacob M. Lewis.
Paul M. Smith the cause argued for With him appellees. on the brief for appellees American Library Association, Inc., A. Chmara, Theresa et al. were Daniel Elliot Mach, M. Mincberg, and Ottinger. Lawrence S. Christopher A. Han sen, Beeson, Ann Shapiro, Steven R. Charles Sims, S. Stefan Presser, and L. David Sobel filed brief for Mult- appellees nomah Public County et al.* Library
Chief Rehnquist Justice announced the of judgment the Court and delivered an opinion, which Justice O’Con- nor, and Justice Justice Scalia, joined. Thomas
To address the problems associated with the of availability pornography public libraries, enacted Congress *Briefs amici curiae urging reversal were filed for the State Texas by Abbott, Greg Attorney General, McBee, First Assistant At- Barry R. torney General, Jejfrey S. Boyd, Deputy Attorney General, A Philip General, Solicitor Lionberger, and Amy and Clinton, Warr As- Ryan D. sistant General; Solicitors for the American Center for Law and Justice by et al. Jay Sekulow, Alan Colby Bull, M. May, Ben James M. Hender- son, Thornton, Joel H. John P. Tuskey, and Hernandez; B. for the Laura American Civil Rights Union by Cities, Ferrara; Peter for Mayors, and County Commissioners by Kelly Shackelford; Greenville, for the South Carolina, Public Library et al. by III; for the National Kenneth C. Bass Law Center for Children and Families et al. by Bullock, A Kristina Bruce and Taylor, A LaRue; Janet M. and for Sen. Trent by Lott et al. Brian Fahling, Stephen M. Crampton, and J. Michael DePrimo. Briefs of amici curiae urging affirmance were for filed the Association Publishers, American Inc., et al. by Rich, R. Bruce Bloom, Jonathan Morris, John Jr.; B. for the Brennan Center by for Justice Burt Neu- borne, Abel, K. Laura Udell; for the Cleveland Public Li- David S. et brary by al. W. David Ogden; and for Partnership Progress on the Digital Divide et al. Marjorie Heins.
Briefs amici curiae were filed for the National School Boards Associ- ation et al. by Julie Underwood, Gittins, Knade; and Stuart L. Naomi the Online Policy Inc., Group, et al. by H. Bromberg and Charles Daniel Morse; R. A and for Jonathan Wallace d/b/a The Ethical Spectacle by Michael B. Green and Jonathan D. Wallace.
199 (CIPA), Act Protection Stat. Internet Children’s not receive CIPA, Under library public may 2763A-335. Internet to access unless it installs assistance provide federal constitute to block or child software images obscenity to minors from to and access prevent obtaining pornography, held is harmful to them. District material Court on the in- invalid facially ground they these provisions libraries to violate First Amendment patrons’ duce public We now reverse. rights. their In-
To libraries provide patrons help public access, offers two forms of assist- ternet federal Congress First, the E-rate established the Tele- ance. program Act of 1996 entitles communications libraries qualifying 71, Internet access at a discount. Stat. 47 U. S. C. buy 254(h)(1)(B). In 30, 2002, § June libraries year ending million in such discounts. Redacted received Joint $58.5 01-CV-1303, All in etc. Trial Parties Nos. Stipulations (hereinafter (ED Pa.), 128, Second, Jt. ¶ Tr. p. Stip.). pur- (LSTA), suant to the Services and Act Library Technology $eq., et 3009-295, amended, §9101 110 Stat. as 20 U. S. C. the Institute of Museum and makes Services grants Library to state administrative “electronically agencies serv- educational, social, libraries with information lin[k] ices,” libraries in information “assis[t] accessing through networks,” electrоnic costs for libraries “pa[y] acquire or share and telecommunications technolo- computer systems (E). §§ 9141(a)(1)(B), (C), 2002, In fiscal Con- gies.” year than million in gress more LSTA appropriated $149 grants. Jt. Tr. 185, These 26. have succeeded Stip. ¶ p. programs greatly Internet access libraries: By bringing 2000, 95% of the Nation’s libraries Internet . provided public access. J. McClure, Bertot Public & C. Libraries Internet Tables, 2000: and Data Summary Findings p. (all 7, 2000), (Sept. http://www.nclis.gov/statsurv/2000plo.pdf materials as visited Mar. and available file). Clerk of Court’s case
(cid:127)By connecting to the public provide Internet, pa libraries trons with a vast amount of valuable information. But there is also an pornography enormous amount of on the Internet, easily much of which is Supp. obtained. 201 F. 2d (ED 2002). Pa. accessibility of this material has created problems serious for libraries, which patrons have found that ages, of all including regularly minors, search for por online nography. Id., patrons at 406. Some expose also others to pornographic images by leaving displayed them on Internet printed terminals or library printers. at Id., at 423. Upon discovering problems, Congress these became con- cerned that the E-rate and programs LSTA were facilitat- ing illegal access to and pornography. Rep. harmful S. (1998). p. 105-226, No. Congress learned “us[e] that adults library computers to pornography access that is then ex- posed to passersby, staff, and children,” “minors acces[s] child and pornography adult in libraries.”1 Congress
But also filtering learned that software that blocks access to pornographic provide Web sites could a rea- sonably way prevent effective such library uses of re- By sources. Id., 20-26. Congress 2000, before enacted CIPA, 17% almost of libraries used such software on at least some of their Internet terminals, and 7% had filters on all of Library them. Research Center Survey of U. Ill., Management Internet Access in Public http:// Libraries alexia.lis.uiuc.edu/gslis/research/internet.pdf. library A can
1The Children’s Internet Protection Act: Hearing on S. 97 before the Senate on Committee Commerce, Science, and Transportation, 106th (1999) Sess., Cong., 1st (prepared statement of Taylor, Bruce President Counsel, and Chief National Families). Law Center for Children and See also Obscene Material Via Available The Internet: Hearing before Sub committee Telecommunications, on Trade, and Consumer Protection House Commerce, Committee on (2000) Sess., 1, 106th Cong., 2d (citing Burt, Access, D. Dangerous 2000 Edition: Uncovering Pornogra (2000)) America’s phy Libraries 2,000 more than (noting incidents patrons, both minors, adults and using library computers to view online pornography, including obscenity and child pornography). material, such as to block categories such software
set 2d, 428. 201 F. or “Violence.” “Pornography” such a falls within a site that a to view tries When patron is blocked. that the site indicating screen category, appears some- set to Id., at 429. But a filter may block pornography nor por- neither obscene sites that block other present times the filter. material, trigger but nevertheless nographic can set its software To minimize this problem, into falls of material categories blocking prevent Id., at 428-429. “Medical.” “Education,” like “History,” *7 a sites from blocking also add or delete A may specific library fur- that id., can ask and companies anyone category, id., 430. sites, software to unblock particular nish filtering CIPA. information, enacted this Congress to Responding or LSTA receive E-rate It that a may library provides mi- of Internet safety it has “a unless assistance policy of a technology protection nors that includes the operation all to access” persons that measure . . . against protects “child por- that constitute “obscen[ity]” “visual depictions” to minors access by and against protects nography,” 20 U. S. C. to minors.” that are “harmful “visual depictions” §§254(h)(6)(B)(i) and §§9134<f)(l)(A)(i) (B)(i); 47 C. and U. S. meas- (C)(i). The statute defines “[tjechnology protection blocks or filters ure” “a as technology specific 254(h)(7)(I). § CIPA covered CIPA. access to by” material ac- filter enable “disable” the “to to also the library permits or other lawful fide research purposes.” cess for bona 254(h)(6)(D). E- § Under 9134(f)(3); § 47 U. S. C. U. S. C. an use by is rate disabling permitted “during program, disa- 254(h)(6)(D). Under LSTA § adult.” program, 20 U. S. C. use by any person. bling during permitted 9134(f)(3). § li- associations, libraries, are group
Appellees the Ameri- Web site and including publishers, brary patrons, (ALA) the Multnomah County can Association Library (Multnomah). Portland, They Oregon Public Library sued the United States and the Government agencies and responsible officials for administering the E-rate and LSTA programs in District Court, challenging the constitutionality of CIPA’s filtering provisions. A three-judge District Court § 1741(a) pursuant convened of CIPA, 114Stat. 2763A-351, following § note 20 U. S. C. 7001.
After a trial, the District Court ruled that CIPA was fa- cially unconstitutional enjoined agencies relevant and officials from withholding federal assistance for failure comply with CIPA. The District Court held that Con- gress had authority exceeded its under the Spending Clause, U. S. Const., Art. I, §8, cl. because, in the view, court’s “any public library complies with CIPA’s conditions will necessarily violate the First Amendment.” 201 F. Supp. 2d, at 453. The court acknowledged that “generally the First subjects Amendment libraries’ content-based decisions about print which materials acquire for their collections to only [basis] rational review.” Id., at 462. But distinguished libraries’ decisions to make certain Internet material inac- cessible. “The central difference,” the court stated, “is that by providing patrons with even filtered Internet access, the library permits patrons speech receive on a virtually un- *8 limited number topics, of from virtually unlimited number speakers, of without attempting patrons’ to restrict access to speech that the library, in the exercise of professional its judgment, determines to be particularly valuable.” Ibid. Reasoning that “the provision of Internet access within a public library ... for use public the expressive ... activity,” the court analyzed such access as a “designated public (citation forum.” Id., at 457 and quotation internal omitted). marks The District Court also likened access in libraries to public “traditional fora ... such as side- parks” walks and because “promotes First Amendment values in analogous an manner.” Id., at 466.
Based on both of grounds, these the court held that the filtering software contemplated by CIPA was a content- there- forum, and was public ato access on restriction based stand- Applying this scrutiny. Ibid. subject to strict fore although the Government that, Court held District ard, the of preventing the dissemination “in compelling interest ahas minors, mate- of case or, the pornography, obscenity, child filters software of use id., at the minors,” harmful rial 479. interests, id., at further those narrowly tailored to is not (2002), and 537 U. S. jurisdiction, probable noted We reverse. now re to the conditions to attach
Congress wide has latitude objec policy its to further in order assistance ceipt federal (1987). But 203, 206 Dole, 483 U. S. v. Dakota South tives. engage in recipient activi “to may Congress not “induce” 210. Id., at unconstitutional.” be themselves that would ties First violate would libraries whether To determine filtering software that CIPA by employing the Amendment our role libraries first examine requires,2 must we society. facilitating worthy missions pursue the
Public libraries Library Appellee ALA’s learning enrichment. cultural and “[b]ooks provide should Rights that libraries states Bill of informatiоn, interest, for the ... . . . resources and other community the enlightenment people of the of all de perform we must analysis Justice Stevens misapprehends authority Spending under the Congress’ termine whether CIPA exceeds Congress it is constitutional whether He asks answers Clause. libraries, instead on filtering] requirement” “impose [CIPA’s problems.” to local responses their to tailor local decisionmakers “allowing Spend Post, our well-established But under (dissenting at 220 opinion). Rather, Dis as the inquiry. proper Clause that is not the ing precedent, (ED 2002), Pa Supp. 2d 201 F. correctly recognized, Court trict be ... requires “would Congress must ask whether the condition we S., U. Dole, library itself performed by if unconstitutional” 210. conduct; rather, has Congress private CIPA not directly does regulate receipt of conditions on by specifying its Spending exercised Power *9 Therefore, appropriate framework the Dole provides federal funds. constitutionality. assessing CIPA’s
serves.”
(internal
We have held in analogous two contexts govern- that the ment has broad discretion to make judgments content-based in deciding private what speech to make available pub- to lic. In Arkansas Ed. Television Comm’n v. Forbes, 523 U. S. (1998), 666, 672-673 we public held that forum principles do not generally apply public to a television station’s editorial judgments regarding private speech presents to its “[Bjroad viewers. rights of access speakers outside would be antithetical, general as a rule, to the discretion that stations and their editorial staff must exercise to fulfill their journalistic purpose and statutory obligations.” Id., at 673. Recognizing a right broad [also] access “would risk implicating the courts judgments that should be left to journalistic exercise discretion.” Id., at 674. *10 in Similarly, National Endowment Arts v. Finley, 569 (1998), U. S. we an art upheld that re funding program the National (NEA) Endowment for the Arts quired to use content-based criteria in making decisions. ex funding We content-based plained “[a]ny considerations that be may into taken account in the are a grant-making process conse of the nature of Id., arts quence at 585. In funding.” par ticular, “[t]he of the NEA very is assumption that grants will be awarded to the ‘artistic worth of according competing and absolute is applicants,’ neutrality inconceivable.” simply (some Ibid. internal omitted). marks quotation We ex declined to pressly forum apply analysis, reasoning would conflict with “NEA’s mandate ... to make esthetic judgments, content-based ‘excellence’ inherently threshold for NEA Id., at 586. support.”
The principles Forbes and underlying also Finley apply a public exercise of library’s in judgment the mate- selecting riаl it to its provides Just as forum patrons. analysis heightened judicial are scrutiny with the role incompatible of public television stations and the role of NEA, they are also with the incompatible discretion that libraries public must have to fulfill their traditional missions. Public staffs consider necessarily content collection deci- making sions and broad enjoy discretion in them. making forum public on which principles the District Court relied, 201 2d, F. 457-470, are out of in the place context of this case. Internet access in libraries is public neither a “traditional” nor a “designated” forum. public See Cornelius v. NAACP Legal Fund, Inc., & Ed. Defense (1985) 788, 802 U. S. forums). (describing types First, this resource —which did not exist until quite recently —has been “immemorially held in trust for the use public and, time out mind,... been used for of assembly, purposes communication of between thoughts citizens, and discussing public questions.” International Soc. Krishna Con sciousness, v. Lee, Inc. (1992) (internal 505 U. 672, 679 S. quo- omitted).
tation “rejected marks We have the view that public traditional beyond forum status extends its historic Forbes, supra, confines.” at 678. The surround- doctrines ing public may traditional forums not be to situa- extended tions history where lacking. such
Nor does
access
library satisfy our
“designated
definition of
*11
public
a
forum.” To create
a
such
government
forum, the
must make an
choice to
affirmative
open up
property
its
public
for use as a
forum. Cornelius,
supra,
Perry
802-803;
Ed.
Perry
Assn. v.
Local Educa-
(1983).
tors’ Assn., 460
37,
U. S.
government
“The
does
public
not
by
create a
by
forum
permitting
inaction or
lim-
ited discourse,
only by
but
intentionally opening a non-
traditional forum
public
for
supra,
discourse.” Cornelius,
at 802. The District
public
Court likened
libraries’ Internet
terminals to
forum
at issue Rosenberger
v. Rector and
(1995).
Visitors
Va.,
Univ.
not Internet terminals in order to public create a forum publishers for Web to express themselves, more than it collects books provide in order public a forum for the authors of speak. books to provides It Internet access, “encourage diversity a private of views speak- from ers,” Rosenberger, supra, but for the same reasons it offers other library resources: to learning, research, facilitate and pursuits by recreational furnishing requisite materials of appropriate quality. (not- supra, See Cornelius, at 805 ing, upholding participation limits on in the Combined (CFG), Campaign Federal “[t]he Government did not create CFC a forum purposes providing expres- sive As activity”). is Congress “[t]he recognized, another method for information available in simply making (1999). a school 106-141, S. No. It library.” Rep. p. than more “no extension of the book stack.” technological Ibid.3
The District Court whereas a disagreed because, library reviews chooses affirmatively book in every acquire collection, its it does not review site that it makes Web every available. 201 F. 2d, at 462-463. Based on this dis- tinction, the court reasoned that a less enjoys discretion in which Internet materials to make deciding if appellees Even had more proffered persuasive evidence that public libraries intended to create a forum for speech connecting to the In ternet, we would hesitate to “the import public forum doctrine ... whole into” sale the context of the Internet. Denver Ed. Area Telecommuni Consortium, FCC, cations Inc. v. (1996) 518 U. S. (oрinion of J.). Breyer, are wary “[W]e of the notion that partial analogy in one context, for which doctrines, we have developed can a fall compel range *12 of decisions in such a new Ibid. changing area.” The dissents agree with the District Court that less restrictive alterna- to filtering Post, tives software would suffice to Congress’ goals. meet at J.) 223 (opinion Stevens, of 201 F. (quoting 2d, 410); post, at 234 J.) SOUTER, (opinion 422-427). 201 F. (quoting Supp. 2d, at But we require the Government to employ least restrictive only means when the forum is public one and strict scrutiny For the applies. reasons above, stated see supra, 205-208, such not the case here. In deciding not to collect pornographic material Internet, from the a public library need not satisfy court that it has pursued the least restrictive means of implementing decision. case,
In any the suggested alternatives have their own drawbacks. Close monitoring computer users would be far more intrusive than the use of software, filtering and would risk transforming role of a librar- ian from a professional to whom turn patrons for assistance into a compli- ance officer whom many patrons might wish to avoid. Moving terminals to places where their displays easily cannot be seen by other patrons, or installing privacy monitors, screens or recessed would not address a li- brary’s interest in preventing patrons from deliberately its using comput- ers to view online To pornography. contrary, these alternatives would make it easier patrons to do so. making
available than in book selections. Ibid. We do constitutionally library’s find this distinction relevant. A quality-based judgments failure to make about all the mate- rial it furnishes from the Web does not somehow taint the judgments library’s judg- A it does make. need to exercise making depends ment in collection decisions on its tradi- identifying tionаl role in suitable and worthwhile material; play it is no less entitled that role when it collects material from the Internet than when it collects material from already other pornography source. Most libraries exclude print they from their inappro- collections because deem it priate subject for inclusion. We do not these decisions heightened scrutiny; it would make little sense to treat judgments pornography any libraries’ to block online dif- ferently, judgments just when these are made for the same reason. quantity
Moreover, because of the vast on material rapid pace changes, Internet and the at which it libraries possibly segregate, cannot item, item all the Internet ma- appropriate terial that is for inclusion from all that is not. While a. could limit just its Internet collection to only those sites it found worthwhile, could do so at the excluding cost of an enormous amount of valuable informa- tion capacity that it lacks the to review. Given that tradeoff, entirely reject it is reasonable for libraries to approach categories and instead exclude certain of content, making without judgments individualized everything they requisite do make available appropriate quality. has
Like the District tendency Court, the dissents fault filtering software to erroneously is, “overblock”—that constitutionally protected block access to speech that falls *13 categories outside the that software users intend to block. post, J.); (opinion See at post, 221-222 of Stevens, at 233-234 J.). (opinion of Souter, Due to the software’s limitations, “[m]any erroneously [Web] pages blocked contain content
209 completely that is for innocuous both adults and minors, and person no rational filtering could conclude matches the companies’ categоry ‘pornography’ definitions, such as or ” Supp. 201 Assuming ‘sex.’ F. 2d, at 449. that such erro- blocking presents neous any constitutional difficulties, such dispelled concerns are patrons may the ease with which filtering have the patron software When disabled. a en- counters a blocked only he site, need ask a librarian to un- (at adults) block least in the case of disable the filter. the District capacity As found, Court libraries have the permanently any erroneously unblock blocked site, at id., 429, and the argument Solicitor General stated at oral “library may filtering . . . respect eliminate the specific sites ... at request patron,” Arg. of a Tr. of Oral respect 4. With expressly adults, CIPA also authorizes altogether officials to “disable” a filter “to enable ac- cess for bona purposes.” fide research or other lawful 20 9134(f)(3) § U. S. C. (disabling permitted for both adults minors); 254(h)(6)(D) § (disabling permitted U. S. C. adults). The Solicitor General confirmed that “librarian response can, in request patron, to a fil- from a unblock the tering altogether,” mechanism Arg. 11, and fur- Tr. Oral explained ther patron explain that a would not “have to ... why he asking filtering was a site to be unblocked or the to be disabled,” id., at 4. The viewed un- District Court blocking disabling inadequate patrons as because some may be too request embarrassed to 2d, them. 201 F. at right guarantee 411. But the Constitution does acquire public library information at a risk without of embarrassment.4 “ The dissents argue will overblocking ‘reduce the adult population . . . to reading only Post, 222, fit what is n. 2 (opinion children.”’ J.) of Stevens, (1957)). Butler v. 380, Michigan, 352 U. S. (quoting Coalition, See also post, and n. 2 (citing v. Free Speech Ashcroft (2002); U. S. United Group, States v. Playboy Entertainment
210 us to affirm the District
Appellees Court’s urge judgment on the alternative an that CIPA unconstitu ground imposes tional condition on the of federal Under assistance. receipt this “the a to doctrine, not benefit government ‘may deny on a basis that his person infringes constitutionally protected . . . freedom of even if he has no to that entitlement speech’ Cty. Comm’rs, Umbehr, benefit.” Board Wabaunsee v. of Perry Sindermann, (1996) 668, 518 U. S. 674 408 v. (quoting (1972)). 593, U. S. 597 that CIPA argue imposes Appellees an unconstitutional condition on libraries that receive E-rate them, LSTA subsidies aas condition on by requiring their of First funds, federal to surrender their receipt Amendment to with access to consti right provide public The Government counters tutionally protected speech. this claim fails because Government entities do not have Broadcasting Sys See Columbia First Amendment rights. tem, Committee, Inc. v. Democratic National 94, S. U. Inc., 803, (2000); 529 U. S. Liberties and Reno v. American Civil Union, (1997)); SOUTER, 521 U. S. see at 237-238 post, (opinion J.). But these they eases are addressed di- inapposite Congress’ because conduct, rect regulation private not exercises of its Power. Spending The dissents also would not argue library patrons because some make specific the interest of authors of blocked In- unblocking requests, ternet material “in reaching possible widest audience would be Post, Stevens, J.); 242-243, at n. 8 abridged.” (opinion post, at 225 see J.). Souter, (opinion of library’s But this mistakes a public purpose acquiring Internet provide patrons terminals: A so to its library does of requisite public materials not create a forum appropriate quality, for Web publishers express themselves. at 206-208. supra, See that,
Justice argues proce- Stevens further libraries’ because some unblocked, dures will make patrons it difficult for to have blocked material CIPA “will create a significant prior protected restraint on access adult Post, speech.” District Court did argument, 225. But this which the address, mistakenly to the context prior extends restraint doctrine to use filtering libraries’ collection decisions. A library’s decision decision, software is a Con- speech. collection not a restraint on private trary belief, to Justice an obliga- Stevens’ have public library does not tion to add is consti- simply material to its collection because the material tutionally protected. (1973) (“The (Stewart, J., First Amendment concurring) interference; it con press governmental
protects
from
id.,
on no
analogous
fers
protection
government”);
(“‘The
n. 7
of the First Amendment
purpose
protect
*15
of
expression’”
Emerson,
T.
The System
private
(quoting
Warner
(1970))).
Cable
Freedom
700
See also
Expression
Communications, Inc., Niceville,
(CA11
v.
Bar Assn., (CA5 1989). 863 F. 2d need not We decide this because, even question assuming that assert an “unconstitutional conditions” appellees may claim, this claim would fail broad lim- on merits. Within “when the its, Government funds to es- appropriates public tablish a it to is entitled define the limits of that program Sullivan, Rust (1991). v. 500 U. S. In program.” Rust, had federal for Congress appropriated family funding services and of such funds in forbidden use planning pro- Id., at 178. Re- that abortion grams provided counseling. restriction, these funds this cipients challenged arguing that conditioned the of a benefit on impermissibly receipt of their constitutional to relinquishment right engage Id., abortion claim, at 196. We that counseling. rejected that “the not a bene- Government recognizing [was] denying fit to but instead that anyone, [was] simply insisting funds for the be for which were author- spent purposes they Ibid. ized.” same true here. The E-rate and LSTA programs
were to intended libraries fulfill their traditional help public role of material of obtaining requisite appropriate qual for educational and ity informational purposes.5 Congress (“It (2) § See 20 U. S. C. 9121 is the purpose of [LSTA] stimulаte promote excellence and access and information learning resources all types 104-230, of libraries for individuals of all S. Conf. ages”); Rep. No. (The (1996) p. 132 E-rate program help open “will new worlds of knowl edge, intended, learning all and education to Americans .... [It is] may certainly “public insist that these funds spent be for the purposes they for which were Espe- authorized.” Ibid. cially public libraries because have traditionally excluded pornographic from material their other Congress collections, reasonably parallel impose could limitation on its programs. filtering assistance As the use of helps software carry programs, permissible out these it is a condition under Rust. premise asserts the “[a] federal
Justice Stevens penalizing library failing statute to install filtering soft every ware on one of its computers Internet-accessible would [the unquestionably First] violate Post, Amendment.” post, 226. See also assuming again at 230-231. But— public libraries First rights have Amendment does —CIPA “penalize” libraries choose not to install such soft deny right provide ware, or them the patrons their *16 unfiltered Internet access. Rather, CIPA simply reflects Congress’ decision not to doing subsidize their so. To the extent that libraries wish to offer they unfiltered are access, “ free to do so without federal assistance. ‘Arefusal to fund protected activity, equated more, without cannot be with the ” imposition “penalty” of a on activity.’ supra, that Rust, at (quoting 193 McRae, Harris v. 448 U. 297, 317, S. 19 n. “ (1980)). ‘[A]legislature’s decision not to subsidize the ex ” ercise of a right fundamental infringe right.’ does not the supra, Rust, (quoting Regan at Repre 193 v. Taxation With (1983)).6 sentation Wash., 461 U. S. 549 of example, to provide the ability collections, browse review the collections of museums, find or new on information the of an treatment illness, to libraries”). Americans everywhere via ... 6These holdings, which Justice ignores, Stevens also make clear that his reliance on Rutan v. Republican Ill., (1990), Party 497 U. 62S. of Burns, Elrod v. 427 (1976), U. S. 347 and v. 344 Wieman S. Updegraff, U. (1952), is misplaced. post, See at 227. The invalidated action state in those cases involved penalties, true such as of promotion denial outright discharge from employment, not nonsubsidies. Appellees Legal mistakenly contend, in reliance on Serv- (2001), Corporation Velazquez, v. that ices S. 533 U. [function- filtering “[d]istor[t] [u]sual the CIPA’s conditions [p]ublic [libraries.” ing Appellees of Brief for ALA et al. 543); (citing Velazquez,supra, Appellees Brief Mult- (same). Velazquez, et al. 47-48 In the con- nomah Court fiirnishing legal program that a cluded Government of aid indigent th[e] “[i]n program differed from the in Rust respect” lawyers represent vital clients the role of who disputes against Government, in welfare is to advocate assumption was there thus an and that counsel would be free S., state control. 531 con- U. at 542-543. Court advocacy that the in cluded restriction on such welfare dis- functioning legal pro- putes would distort the usual and the fession federal and state courts before which the lawyers appeared. have no libraries, contrast, Public comparable pits against Government, role that them and comparable assumption they there is no must be free might conditions that their attach to the use benefactors of donated funds or other assistance.7 Justice Stevens that Rust Velazquez, Relying argues mistakenly on to, involved, case . . “only only applies because that and . inapposite government situations in seeks to communicate a mes specific which Rust, sage,” post, unlike the Title X the E-rate and program any particular LSTA programs designed “are foster or transmit Post, governmental at 229. But he misreads our dis message.” cases Rust, again misapprеhends purpose providing Inter cussing Velazquez viewpoint- net libraries. only terminals held based not itself improper [government] restrictions are ‘“when the does *17 expends favors but instead a speak or subsidize transmittal of message diversity encourage private speakers.’” to views 531 of funds from Va., S., Rosenberger Rector and Visitors v. Univ. U. at (quoting of of (1995) added)). 819, S., 515 U. 531 U. at 542 (emphasis S. See also (“[T]he that, Rosenberger, LSC point salient is like the program to private [Legal Corporation] program Services was designed facilitate added)); speech System . ..” Board Univ. Regents (emphasis of of of Wis. (2000) (“The Southworth, v. S. 529 U. University Wisconsin public Because libraries’ use Internet filtering software does patrons’ not violate their First rights, Amendment CIPA does not induce libraries to violate the Constitution, and is a valid Congress’ exercise of spending power. Nor impose does CIPA an unconstitutional condition on libraries. judgment Therefore, the of the District Court for Pennsylvania Eastern District of
Reversed. Justice Kennedy, in the concurring judgment.
If, request on the anof adult user, librarian will unblock filtered material disable the Internet software filter with- significant out delay, there is little to this case. The Govern- represents ment this is indeed the fact. Tr. of Arg. 11; Oral ante, (plurality at 209 opinion).
The District Court, in “Preliminary its say Statement,” did unblocking that “the may days, take may be unavailable, especially in branch libraries, which are often less well staffed than (ED main libraries.” 201 Supp. F. 2d 401, 411 2002). Pa. post, also See at 232-233 dissenting). J., (Souter, That statement, however, appear does not specific to be a finding. It was not the basis for the District Court’s deci- sion in event, as the court assumed disabling “the provisions permit public libraries patron to allow a access to any speech that is constitutionally protected respect patron.” 201 F. 2d, at 485-486. exacts the fee at issue for the purpose sole of faсilitating the free and open exchange ideas”); Rosenberger, supra, (“The [Student Activities forum”; Fund] ais “[T]he University .. . expends funds to en- courage a diversity views from private Indeed, speakers”). this very distinction led us Southworth state that case did implicate not our unconstitutional conditions (“The jurisprudence. S., 529 U. at 229 case we decide here ... does raise the issue of government’s right ... its use own funds to advance a particular we message”). As have above, stated supra, 206-208, public libraries do not install terminals to provide a forum for Web publishers themselves, to express but rather provide patrons with online material of requisite appro- priate quality. *18 spe- capacity
If some libraries do have the not to unblock sites or Web the filter or if an cific disable it is shown that constitutionally protected user’s election to In- adult view way, material is burdened in some other substantial ternet subject as-applied challenge, be the would an challenge post, facial case. the made in this See at 219-220 concurring judgment). (Breyer, J., are, of course, There substantial Government interests library protecting young The here. interest in users stake legitimate, inappropriate from material minors is and compelling, appear to even as all of the Members Court agree. interest, Given this and the failure to show that ability of adult have material users to access to the any significant degree, is not un- is burdened the statute on its these I in the reasons, constitutional face. For concur judgment of the Court.
Justice Breyer, in the concurring judgment. (Act)
The Children’s Act con Internet Protection sets receipt ditions for the of certain subsidies Government require libraries. the libraries to Those conditions technology, computers install on their Internet-accessible say, filtering help prevent computer users software, that will gaining pornography, from obscen child access to ity, comparably material minors. 20 S. C. harmful to U. §§9134(f)(l)(A)(i) §§254(h)(6)(B)(i) (B)(i); U. C.S. (C)(i). technology, not function form, in its current does perfectly, constitution for to some out extent it also screens ally protected scope of the that fall outside materials (1 “overblocks”) prevent e., statute access to and fails to (i. some e., materials “under deems harmful the statute blocks”). (ED 2002); See 2d 448-449 Pa. F. determining ante, at (plurality opinion). 208-209 In whether consequently violate statute’s conditions “public First plurality forum” Amendment, the first finds inapplicable, doctrine then holds ante, 205-208, and statutory agree provisions I are constitutional. *19 both determinations. But I plurality’s reach ultimate way. conclusion in a different ascertaining
In statutory provisions whether the are con apply heightened stitutional, I would a scrutiny, form of ex amining statutory requirements question special in directly care. public’s The Act restricts receipt of in (1969) Stanley Georgia, formation. See v. 394 U. S. 557, 564 (“[T]he protects right Constitution to receive informa ideas”); tion and Reno v. American Civil Union, Liberties (1997). 521 844, U. S. through And it so does limitations (here imposed by Congress) outside upon bodies two criti cally important sources of information —the Internet as ac .public cessed via ante, libraries. See at (plu 200, 203-204 rality opinion); post, at 225-226 dissenting); J., (Stevens, Board Ed., Trees Island Union Free School Dist. No. 26 (1982) Pico, v. 853, 457 U. S. dissenting) J., (Rehnquist, (describing public places “designed libraries as for freewheel ing inquiry”). supra, Reno, See also (describing 853, 868 at the Internet as a “vast democratic” medium and the World part, Wide “comparable, Web, in as from the readers’ view point, library”); to ... a vast v. American Civil Ashcroft (2002). Liberties Union, 535 564, U. S. For reason, we should not constitutionality examine the statute’s as if it special raised no First Amendment if, concern—as like tax or regulation, economic the First only Amendment dеmanded a imposing “rational basis” for a restriction. Nor should we accept suggestion Government’s that a presumption favor of the constitutionality applies. statute’s g., See, e. Supp. F. 2d, at 409; Brief for States United 21-24.
At my the same time, view, the First Amendment does application here demand of the limiting most con- approach stitutional scrutiny.” of “strict The statu- —that tory question restriction in is, in a essence, kind of “selec- (a tion” editing). restriction kind It affects the kinds and amount of materials that the present pa- can to its ante, And See at 207-208 opinion). trons. (plurality materials, often in the selection libraries properly engage (i. e., to the scarcity as matter of due necessity either (i. e., resources) with collection or in accordance by design g., e. 2d, 408-409, See, 201 F. development policies). 462; ante, To 204, 208 apply (plurality opinion). collection to the of a library’s “selection” scrutiny” “strict (whether out themselves carried libraries by public to en bodies with a traditional right community legal other function) interfere with the in that would unreasonably gage create, maintain, or select necessary library’s discretion all the information defined to include “collection” (broadly Publishing Miami Herald available). makes Cf. the library *20 Tornillo, (1974) Co. v. 241, 418 U.S. 256-258 (protecting and exercise of editorial control judgment). newspaper’s “strict That is too limiting rigid say, scrutiny” implies test for me to believe that the First Amendment requires it in this context. of the Act’s
Instead, I would examine the constitutionality restrictions here as the Court has examined speech-related call for in other contexts where circumstances restrictions for “strict,” but not example, scrutiny where, heightened, — are constitutional interests potentially complex, competing harm is at issue or justified potentially speech-related thе interests. key unusually strong governmental Typically e.g., See, of fit. in such instances is one question proper Fox, Y. Board Trustees N. State Univ. S. v. 492 U. of of of Denver Ed. Telecommunications Consor Area (1989); 469 tium, FCC, Inc. v. (1996) 727, 740-747 518 U. S. (plurality Broadcasting System, FCC, Turner Inc. v. S. 520 U. opinion); Lion Red (1997) 227 180, J., concurring part); (Breyer, Broadcasting FCC, (1969). Co. 367, v. 389-390 395 U. S.
In whether such the asked the harm cases Court has both interests is speech-related light disproportionate con- and the alternatives. It has justifications potential sidered the extent of the statute’s objective, legitimacy
to which objective, the statute will tend to achieve that whether ways achieving there are other, less restrictive objective, ultimately whether statute works speech-related objective, harm that, in is relation to out proportion. supra, example, In Fox, 480, Court stated:
“What require our legisla- decisions ‘fit’ is a between the accomplish ture’s ends and the chosen means those necessarily perfect, ends—a fit that is not but reason- represents able; necessarily single not best dis- position scope proportion but one whose is in in- to the employs necessarily terest served; that the least put restrictive means but, as we have it in the other narrowly , contexts ... means tailored to achieve the (Internal objective.” quotation desired marks and cita- omitted.) tions g.,
Cf., e. Corp. Central Hudson Gas & Elec. v. Public Serv. (1980); Y., Comm’n N. 447 U. 557, S. United States v. (1968); O’Brien, 391 U. Community S. Clark v. (1984). Non-Violence, Creative ap S. U. This proach does not “balancing” substitute a form of for less though flexible, speech-protective, more forms of “strict scrutiny.” supplements Rather, ap the latter with an proach provides that more flexible but nonetheless *21 legislature ordinary leeway light with less than in of the constitutionally fact that protected expression is at issue. supra, Virginia Fox, Cf. at Pharmacy 480-481; Bd. v. Vir ginia Citizens Consumer Council, Inc., 425 U. S. 748, 769- (1976). 773 satisfy
The Act’s restrictions these constitutional demands. Act obscenity, The seeks to restrict pornog- access to child raphy, respect by in and, access minors, material that comparably is objectives “legitimate,” harmful. These are “compelling.” g., indeed often See, e. Miller v. Califor- (1973) (interest nia, S. prohibiting U. access Reno, S., at “legitimate”); material is U. 869-870 obscene (interest exposure “shielding” minors from indecent “ ”); Ferber, ‘compelling’ New York v. 458 U. S. is material (1982) (same). found, District As the Court 747, 756-757 “provide relatively cheap and effective” filters software furthering goals. 448. 2d, 201 F. at these means present technological the soft- limitations, however, Due to screening perfectly both out some “overblock,” ware filters allowing ob- legitimate material, “underblock,” some escape Id., filter. at 448- material to the scene detection (plurality opinion). ante, at But no one 208-209 449. See fitting presented clearly superior alterna- has or better opinion). (plurality ante, tives. See n. 3 an important exception time, At same the Act contains “overblocking” speech-related limits the harm that might plurality points Act allows out, As cause. permit any patron to an “over- libraries to access adult only patron a librarian ask site; blocked” Web the adult need alternatively, ask the specific or, to unblock the Web site ante, 209; librarian, “Please disable the entire filter.” See 9134(f)(3) § library (permitting to “disable U. S. officials C. protection access technology to enable measure ... purposes”); 47 bona U. S. C. fide research or other lawful 254(h)(6)(D)(same). § mak- impose upon patron burden of Act does
ing request. that burden this see how But it difficult to (or any delay prove compliance) more associated with could library practices onerous than associated traditional segregating library say, or with stacks, in, materials closed interlibrary lending practices require patrons to make requests anonymous li- while the and to wait are Per- brarian desired obtains the materials from elsewhere. haps practices local restrict rules or further could ability material. patrons to obtain “overblocked” e.g., See, In re Board on Universal Federal-State Joint Red. Act, Service: 16 FCC Children's Internet Protection *22 (2001) ¶ ¶ (leaving 8182, 8183, 2, determinations re- appropriateness pol- garding compliant safety Internet communities). disabling icies and their to local But we are considering any practices. not now local con- such We here only challenge facial sider to the Act itself. comparatively im- Given the small burden that Act poses upon library patron seeking legitimate say any speech-related I materials, cannot harm that may disproportionate the Act cause is when considered objectives. legitimate agree relation to the Act’s I therefore plurality with the that the statute does not violate First judgment. Amendment, and I concur Justice Stevens, dissenting. public
“To fulfill their traditional missions, libraries must have provide broad discretion to decide what material to patrons.” Accordingly, their agree Ante, at 204. I with the plurality inappropriate that it is neither nor unconstitutional experiment filtering local software as a curtailing means of children’s access to Internet Web sites displaying sexually explicit images. agree I also with the plurality that the 7% libraries that decided to use such software on all of their Internet terminals in 2000 did unlawfully. not act Ante, at 200. Whether it is constitu- Congress tional for the impose of the United States requirement on the other vastly 93%, however, raises a dif- question. allowing ferent Rather than local decisionmakers responses problems, tailor their to local In- Children’s (CIPA) ternet operates Protection Act as a blunt nationwide restraint on adult access to “an enormous amount of valua- ble possibly information” that individual librarians cannot review. Ante, at 208. Most of that information is constitu- tionally protected speech. my In view, this restraint unconstitutional.
I by findings made the District unchallenged of fact filtering in the defects software reveal fundamental Court the will be available in foresee- available that is now or key or words relies on software Because the able future. capac- not have the sites, it does block phrases to undesirable images. As category precisely defined ity a to exclude explained: Court the District companies use engines
“[T]he that software search images. only, not harvesting to search text are able by its CIPA, importance, because is of critical This C. depictions.’ 20 U. S. only ‘visual terms, own covers §254(h)(5)(B)(i). Image 9134(f)(l)(A)(i); § C. U. S. un- ineffective, and technology immature, recognition is None substantially future. likely improve near the case deposed in this companies filtering software of the harvesting technology when image recognition employs auto- on the reliance categorizing Due to URLs. recogni- image analysis text and absence mated sexually explicit im- page technology, Web tion a using a search ages harvested no be text cannot fact complicated problem engine. This text rather than may image files publishers Web site use comput- they may a file that represent use words, e., i. aof photograph picture, ers understand to be a like making auto- regular text, printed than word, rather For impossible. review of their textual content mated using displays its name example, Playboy if Web site enginе would logo regular text, a search rather than logo.” in that Playboy name recognize the not see or 2002). (ED Pa. 2d 431-432 201 F. quantity
Given the ever-changing character of Web sites offering sexually free explicit material,1 is inevitable that a substantial amount of such material will never be blocked. Because of this “underblocking,” provide the statute will parents with a false sense security solving really without problem that motivated its Conversely, enactment. software’s reliance on identify words to undesirable sites necessarily blocking results pages of thousands of “contain content completely that is innocuous both adults and minors, and that person no rational could conclude *24 matches filtering companies’ the category such definitions, as 'pornography’ or my Id., ‘sex.’” In judgment, 449. statutory blunderbuss that mandates this vast amount “overblocking” abridges the speech protected by freedom the First Amendment.
The effect of overblocking is the equivalent functional of a host of individual excluding decisions hundreds of thou- sands of constitutionally protected individual messages from Internet public terminals located throughout in libraries the Nation. Neither the suppressing interest in unlawful speech nor the protecting interest in children from access to justifies harmful materials overly this broad on restriction adult protected speech. access to may “The Government suppress not speech lawful as suppress the means unlaw- speech.” ful Speech v. Coalition, Free 535 U. S. Ashcroft (2002).2 234, 255 1 percentage “The of Web on pages indexed Web containing sexually explicit content is relatively small. Recent estimates indicate that no more than 1-2% of the content on the Web pornographic is or sexually explicit. However, the absolute number of Web offering sites sex free ually explicit material is 100,000 extremely large, approximately sites.” (ED 201 F. 401, 2002). 2d Pa. 2We have repeatedly reaffirmed Butler v. Michigan, in holding U. (1957), S. may State not “reduce the adult population .. . to reading only what fit for children.” v. Free Speech See Ashcroft Coalition, S., 252; 535 U. States v. Playboy United Entertainment Inc., Group, (2000) (“[T]he 529 U. S. objective of chil- shielding does not CIPA permit
Although any experimentation, alternatives found that a Court variety District expressly available at the local level: restrictive are less restrictive alternatives exist further “[L]ess the dis- in interest legitimate preventing government’s child and material semination obscenity, pornography, from minors, being harmful preventing patrons ex- offensive, sexually unwillingly exposed patently vis- content. To from accessing plicit prevent patrons and child ual that are obscene depictions pornography, libraries enforce Internet use policies may termi- make clear to that the library’s patrons Libraries nals be to access used may illegal speech. these who violate then on may impose penalties patrons law to notification of from a warning policies, ranging case. Less restrictive enforcement, in the appropriate interest that further libraries’ alternatives filtering minors to visual from depictions preventing exposure that are harmful to minors include requiring parental access, or re- unfiltered consent to or presence during within to terminals minors’ unfiltered access stricting view of staff. filtering, privacy Finally, optional *25 of unfiltered monitors, and screens, recessed placement re- less outside provide Internet terminals sight-lines for libraries strictive alternatives prevent patrons con- from to sexually explicit unwillingly exposed being 2d, at 410. 201 F. tent on the Internet.” on the comment Those are consistent scholarly findings issue local tailored to local circum- decisions arguing stances than a mandate from Con- are more appropriate can be ban if the protection dren does not suffice to a blanket support Reno v. American Civil alternative”); a less accomplished by restrictive Union, (1997) (“[T]he Liberties S. interest governmental 521 U. justify in . . . does not children from harmful materials protecting adults”). speech an broad addressed to unnecessarily suppression gress.3 does not plurality, reject those findings. Instead, “[assuming such erroneous presents blocking constitutional difficulties,” it relies on the Solicitor General’s assurance that the statute permits individual librarians disable mechanisms filtering whenever patron so requests. Ante, at 209. In my judgment, assurance does not cure the constitutional in the infirmity statute.
Until
blocked
site
of sites is
group
unblocked, a patron
is unlikely to know what
is being hidden and therefore
whether
there is
in
any point
asking
filter
re-
be
moved.
It is as
though
statute required a significant
part
every library’s
materials
reading
to be
in un-
kept
marked,
locked rooms or cabinets, which could be opened
only
response to specific requests.
Some curious readers
would
time obtain access to the hidden materials, but
3“Indeed, federal or state mandates in this area are unnecessary and
unwise. Locally designed solutions are likely to best meet local circum
stances. Local decision makers and library boards, responding to local
concerns and
prevalence
of the problem in their
libraries,
own
should
decide if minors'
access requires
filters. They are the persons
in the best position to judge local community standards for what is and is
not obscene, as required by the Miller [v.
(1973)]
California,
many Inevitably, would not. the of the interest authors of reaching works in possible those widest audience would abridged. procedures Moreover, be because the that differ likely adopt are respond unblocking libraries ent re will quests vary, impossible no doubt it is to measure the aggregate patrons’ effect of the statute on access to blocked symbolic Unless we sites. assume that the statute ais mere gesture, we must significant conclude that it will create prior protected speech. restraint on adult access to A law prohibits reading without official like consent, a law that prohibits speaking consent, without “constitutes a dramatic departure our heritage from national tra constitutional dition.” Watchtower Bible & N. Inc.Y., Tract v. Vil Soc. of (2002). lage Stratton, 536 U. S. plurality incorrectly
The argues that the statute does not impose “an public unconstitutional condition on libraries.” contrary, Ante, at impermissibly 214. On conditions receipt funding sig- Government on the restriction of rights. nificant First Amendment plurality explains “worthy missions” of the facilitating “learning and cultural enrichment.” Ante, at 203. It then asserts that in order to fulfill these missions, “libraries must have broad discretion to decide provide what patrons.” material Ante, to their at 204. Thus the province selection decision is the librarians, province which into we have hesitated to enter: library’s
“A judgment making need to exercise collec- depends tion identify- decisions on its traditional role in ing suitable and material; worthwhile it is no less enti- play tled to that role when it collects material from than when it collects material other from already source. pornography Most libraries exclude print from they inap- their collections because deem it propriate subject for inclusion. We do not deci- these *27 heightened sions scrutiny; it would make sense little judgments to treat libraries’ to block online pornogra- phy differently, when judgments these are for made just the same reason.” Ante, at 208. plurality As recognizes, always we have assumed that libraries have making discretion when regarding decisions what to include in, and from, “ exclude their collections. That comparable discretion is university... ‘business of a to determine for grounds itself on academic may who teach, may what taught, be how it shall be taught, may and who be ” study.’ admitted to Sweezy v. New Hampshire, 354 U. S. (1957) (Frankfurter, 234, 263 result) (citation concurring J., omitted).4 As the Court District found, one of the central purposes library of a provide is to information educa “ purposes: tional ‘Books library and other resources should provided be for the intеrest, enlightenment information, and people of all of the community serves.’” 201 F. 2d, (quoting at 420 Library American Associa Library tion’s Rights). Bill of Given our deep Nation’s com mitment “to safeguarding academic freedom” and to the “ro bust exchange ideas,” of Keyishian Regents v. Board of of Univ. Y., State N. (1967), U. S. library’s judgment exercise of respect to its collection is entitled to First protection. Amendment
A federal statute penalizing library failing to install filtering software on every one of its Internet-accessible computers would unquestionably violate that Amendment. Cf. Reno v. American Civil Union, Liberties 521 U. S. 844 (1997). I think it equally clear that the First Amendment protects libraries being from denied refusing funds for
4See also J. Boyer, Academic Freedom and the Modem University: The Experience of the University (2002) (“The of Chicago 95 right speak, to write, and to teach freely is a precious right, one that the American re search universities over the course of the twentieth century have slowly but surely made central to the very identity of the university the mod world”). ern with an rule. An identical comply abridgment by speech of a means threatened denial benefits can be as just perni- as an of a means threatened cious abridgment penalty. cases Our government employment holding may conditioned on the surrender of be rights protected by It First Amendment illustrate has been set point. long could not ‘enact a tled “Congress regulation providing *28 no or shall Jew be fed Republican, Negro appointed or office, no federal eral shall attend Mass employee work.’” Wieman take active in or part missionary (1952). 344 183, U. S. 191-192 Updegraff, v. Neither dis Burns, Elrod v. as in 427 347, (1976), U. S. 350-351 charges, Rutan v. refusals to or in nor hire as Republican promote, Ill., 62, (1990), 66-67 are Party of U. S. immune from First Amendment Our scrutiny. precedents firmly reject dictum, “Justice Holmes’ famous that a ing policeman ‘may have a constitutional to talk but he has no con right politics, ” Comm’rs, Board Wa stitutional a be right policeman,’ of Umbehr, baunsee 668, v. 518 U. S. draw no Cty. (1996), distinction the of between from one’s penalty discharge job and the of the benefit of a new The job. withholding abridg ment of First Amendment unconstitutional rights equally Verner, See Sherbert v. 398, 404 in either context. 374 U. S. (1963) (“Governmental the of such a choice imposition puts same kind of burden the free exercise of as upon religion would a fine It is too late in the to doubt that the .... day liberties of and be the expression by religion may infringed denial of a conditions benefit or placing upon privilege”).
The at- issue in this case does not involve governmental its It tempts to control or views of speech employees. involves im- on an the use its controls treasury impose situation, portant medium In an expression. analogous we held that when use “the Government seeks to specifically an it, medium of and in class to control existing expression of cases, in which distort its usual ways functioning,” must be First restriction struck down under the distorting Legal Amendment. Services Corporation Velazquez, v. 543 (2001).5 question,
U. S. The requir then, is whether ing filtering software on comput all Internet-accessible ers distorts that medium. As I have discussed above, the underblocking over- and just the software does that. plurality argues the controversial decision in (1991), Rust Sullivan, v. requires U. S. 173 rejection of appellees’ unconstitutional conditions claim. See ante, at subsequent 211-212. as But, explained, cases have Rust only only applies involved, and to, governmental instances of speech is, government situations which the seeks to —that communicate specific message.6 The discounts under program E-rate funding Library under Services (LSTA) Technology program Act involved in this case do not any message subsidize favored As Government. Congrеss programs clear, made these designed “[t]o were help public provide patrons libraries their with Internet ac- “providers] cess,” which turn patrons awith vast amount of valuable Ante, information.” pro- 200. These *29 grams designed thus are provide to particularly access, individuals in low-income communities, see 47 U. S. C. §254(h)(1), ato vast amount variety and wide private of 5Contrary to the plurality’s narrow reading, Velazquez is not limited instances in which the recipient of Government funds be might “pit[ted]” ante, against the Government. at See To 213. the contrary, we assessed the Velazquez by turning to, issue and with, harmonizing our prior unconstitutional condition cases in the First Amendment context. See S., at U. 543-544. id., Rust See at 541 (distinguishing on the ground that “the counseling activities of the doctors ... to governmental amounted speech”); Board of Regents Univ. Wis. System Southworth, v. 217, (2000) 529 U. S. of of (unlike Rust, “the issue of government’s the right... to use its own funds to advance particular a was not message” presented); Rosenberger v. Rec tor and Visitors of Va., (Rust Univ. 819, 834 (1995) 515 U. S. is inapplica of ble where the government “does not speak itself or subsidize transmittal of a message it favors but expends instead funds to encourage a diversity of from private speakers”). views They designed or transmit speech. are not to foster governmental message. particular passage if we the modi- Even were to construe CIPA as they fying programs the E-rate now such that and LSTA “ convey governmental message depictions’ that no ‘visual pornography,’ mi- ‘obscene,’ are ‘child the case of that ” ‘harmful nors, minors,’ 2d, 201 F. at should be expressed filtering or viewed, the use of does not software message. filtering promote above, that As described all erroneously software access to substantial number blocks constitutionally protected speech sites of Web that contain variety (describing topics. id., a wide 446-447 on See religious blocking speech and erroneous on churches politics groups, government, issues, on on on edu- health travel). sports, Moreover, and on careers, cation on “frequent underblocking,” id., are there instances of filtering prevent is, that instances in did not which software depictions access to Web sites with that fall within what message to. In con- short, CIPA seeks to block access the veyed by filtering speech use of software is not that all the except by supported by prohibited that which is is CIPA speech gets through rather that all Government, but supported software And the items Government. through depictions get the software some visual include pornography, obscene, that are some that are child and some time soft- minors, are harmful while at the same speech ware an enormous amount of that is not sexu- blocks ally certainly explicit and does not meet definitions CIPA’s prohibited message conveyed such, content. As since the message purports pro- is far from the Government permitted past filtering indeed, the material soft- mote— *30 any message ware does not seem to have coherent —Rust inapposite. is plurality’s reliance on National Endowment Arts for (1998), Finley, misplaced. v. U. S. 569 case also That challenge setting involved a to a forth statute the criteria used a by federal panel experts a federal administering grant Unlike this program. case, the Federal Government was not to seeking impose restrictions on the administration of a nonfederal As program. explained Rust at 228, supra, would to appear restrictions on permit a federal program such as. National Endowment for the (NEA) Arts arts Finley. grant at issue in program Further, like a library, in Finley the NEA experts had a great deal of discrеtion make judgments as to what proj- ects to fund. But unlike Finley case, this did not involve a challenge the NEA to a by governmental restriction on its ability award grants. Instead, the respondents were per- formance artists who had for NEA applied but grants were denied See 524 S.,U. funding. 577. If this were a case in which had library patrons a challenged library’s decision install use software, filtering would be in the same as Finley. posture Finley Because it is not, does not control this case. Finley,
Also unlike the Government does not merely seek to control a library’s discretion with respect computers purchased with Government funds or those computers with Government-discounted Internet access. CIPA li- requires braries to install every software filtering on computer Internet access if the any receives library discount from the or any E-rate program funds from the LSTA See program.7 § U. S. C. 9134(f)(1); U. 254(h)(6)(B) §§ S. C. (C). If has 10 computers paid by nonfederal funds and has Internet service for those computers also paid nonfederal funds, the library may choose not to put filtering software on those 10 computers. aOr library may decide to put software filtering on the 5 in its computers 7Thus, appellees are not merely challenging protected “refusal to fund activity, more,” without as in McRae, Harris v. 297, 317, 448 U. S. n. 19 (1980), aor “decision not to subsidize the exercise of a right,” fundamental as in Regan v. Taxation With Representation Wash., 461 U. S. (1983). They are challenging a restriction that applies to property they acquired without federal assistance. *31 elementary school library in an a section. Or
children’s com- every single of its 10 one might put choose to on filters pro- attempts library if a puters. statute, But under this an E- through computer Internet one vide for even service on all filtering put software discount, that must rate computers just one com- not access, the its with Internet of puter E-rate discount. be used funds to рermit federal
This Court should First Amendment of this enforce kind of broad restriction unnecessary to is rights, particularly a restriction when such (dis supra, accomplish Congress’ goal. See stated alternatives). abridgment of cussing less restrictive is one rule like this speech equally obnoxious whether by to withhold a threat penalties enforced threat of a benefit. Court. judgment District of the
I would affirm the Ginsburg joins, Souter, with whom Justice Justice dissenting. at 225- ante, agree
I in the main with Justice Stevens, blocking re- opinion), the page (dissenting 230 and this Act, quirements Protection the Children’s §§254(h) §§9134(f)(l)(A)(i) (B)(i); 47 U.S.C. U.S.C. (6)(B)(i) (C)(i), on impose condition an unconstitutional providing libraries local subsidies to Government’s library appel- agree with the access to I also Internet. blocking invalid to hold the rule lees on a reason further §8: I, spending power under Article exercise of by recipient violate libraries that would rule action mandates speech guarantee if the librar- of free the First Amendment’s respectfully entirely I on their own. ies took action ground. dissent on further this
I doubt Court, I no have Like the Members of other governmental put efforts to a barrier legitimacy about the raw offer- libraries and the patrons between child ings on the Internet otherwise available to them there, and only if the First Amendment interests raised here were application those uphold I children, would of the We Act. *32 governmental have said that the interest in “shielding” chil dren from exposure to indecent material is “compelling,” v. Reno Civil Liberties Union, American 521 U. 844, S. (1997), 869-870 I do not think and awkwardness a child might asking feel on for an unblocked terminal any such constitutionality. burden as to affect agreed Nor would dissent I I if with the majority my colleagues, ante, at (plurality opinion); see 208-209 ante, at concurring J., in judgment); ante, at 214 (Breyer, (Ken- concurring judgment), that an adult library pa- nedy, J., tron consistently could, Aсt, obtain an unblocked simply terminal asking. for the I realize the Solicitor Gen- represented eral this be policy, Government’s see Arg. Tr. of Oral 4-5, policy 11, and if that were communi- every library cated affected unequivocally as as it was argument, stated to us at might local librarians be able to indulge unblocking requests patrons point adult to the taking the curse off the practical statute for all purposes. But the Federal Communications Commission, in its order implementing pointedly Act, pol- declined to aset federal icy on when unblocking by local appro- libraries would be priate under the statute. See In re Federal-State Joint Board on Universal Service: Children’s Internet Protection Act, (2001) 16 FCC ¶53 Red. 8182,8204, (“Federally-imposed directing rules school library and staff when to tech- disable nology protection likely measures would be overbroad imprecise, potentially chilling speech, confusing otherwise schools and libraries about requirements of the statute. We leave such determinations to the communities, local whom we believe to be most knowledgeable vary- about the ing circumstances of schools or libraries within those commu- nities”). Moreover, the District expressly Court found “unblocking may days, take may espe- be unavailable, which are libraries, in branch well staffed often less dally (ED libraries.” 201 F. main 2d Pa. than id., (same). see at 487-488 2002); event, statute, here to review a and the
In we are cannot even for construed, be unblocking provisions simply avoidance must that a constitutional say purposes, adult no conditions and no unblock upon request, imposed First, asked. the statute that a library says only questions § unblock, 9134(f)(3); not that it must. U. S. see C. “may” 254(h)(6)(D). addition, § In it 47 U. S. C. allows unblocking “bona fide research or other lawful purposes,” only § 9134(f)(3); 254(h)(6)(D), § see 47 C. and if the U. C. U. S. S. criterion that would not “lawful means purposes” anything fide and render the “bona research” criterion subsume limit must some on impose eligibility superfluous, e.g., Germain, Nat. Connecticut Bank v. see, unblocking, *33 (“[C]ourts (1992) 503 U. should disfavor inter- S. of statutes that render pretations language superfluous”). restriction, There is some therefore which necessarily made terms more onerous its surely by uncertainty and the of its staffs in decid- discretion generosity who access and not. who does ing gets complete Forsyth County Movement, v. Nationalist Cf. 505 U. S. (1992) the First Amendment bars (noting licensing schemes that broad discretion to offi- grant unduly licensing cials, for such discretion to given “becom[e] potential (internal means of of view” suppressing particular point omitted)).1 marks quotation
We therefore have to take the statute on the understand- will adults be denied access to a amount ing substantial of nonobscene material harmful for to children but lawful
1If the Solicitor General’s representation in the turns out to be honored libraries, breach by today local without goes saying that our decision ante, would not foreclose an as-applied challenge. also 219-220 See ante, (Breyer, (Kennedy, J., J., in concurring concur judgment); at 215 in ring judgment).
adult quantity examination, pic- and a substantial of text and tures harmful plurality to no one. As the concedes, see ante, at consequence 208-209, this is the inevitable of the indiscriminate filtering behavior of current mechanisms, which screen out by only material to an extent known manufacturers of the blocking software, see 201 2d, F. (“The at 408 category pro- blocking lists maintained grams are proprietary considered to be information, and hence are general public unavailable to customers or the review, so that categories libraries select when implementing filtering really software do not know what they blocking”). are
We likewise have to examine the statute on the under- standing that the restrictions on adult Internet access have justification no object protecting children. Chil- dren could be restricted to blocked leaving terminals, other unblocked terminals in areas restricted to adults and screened glances. from casual And, of course, the statute simply could provided have unblocking request, at adult questions with no asked. The statute could, other words, protected have children without blocking access for adults subjecting anything adults to more than minimal incon- (the just shows) way venience, many record librarians dealing had been obscenity indecency impo- before sition of the federal conditions. id., See at 422-427. In- stead, the funding Government’s engage conditions in over- degree kill to a illustrated by their refusal to trust even a library’s staff with an unblocked terminal, one to which the *34 public adult itself has no access. (quoting id., See at 413 ¶30). FCC Red., at question
The for me, then, is whether a library local could itself constitutionally impose these restrictions on the con- tent otherwise patron available to through an adult an In- ternet connection, at a library provided public terminal use. The answer is no. A library that chose block an (and adult’s Internet access to material harmful children filter might undiscriminating interrupt) else the whatever restriction on communi be content-based imposing would control that an adult could of in the library’s material cation would be This simply censorship. see. lawfully otherwise not extend to the would necessarily every True, censorship user convince a librar adult, might for an intending or had a “lawful researcher that he was a true ian purpose” the terminal could library’s provide. to obtain everything not un those who did qualify as to discretionary But be like all cen and, the would comрlete blocking, censorship in Government, of the an agency presumptively sorship in the Free valid strict scrutiny implementing owing Amendment. of First “The of the Clause policy Speech of information and favors dissemination First Amendment freedom of and the speech press guarantees opinion, of the were not censorship press designed prevent which means of but action of any government by merely, such free and discussion it might prevent general v. Vir essential.” Bigelow matters as seems absolutely (1975) (internal marks and 809, 829 S.U. ginia, quotation omitted). brackets
II treat does blocking affecting Court’s plurality act adults as but chooses to describe a library’s censorship, of selec- as an instance the kind content filtering simply (save, tion from available material per- every Ante, at 208 must haps, Congress) Library perform. (“A collection exercise need to library’s making judgment decisions role in suit- on its traditional identifying depends able and worthwhile entitled to material; it is no less play that role when it material the Internet collects from than. source”). when it But this collects material from other any position does not hold up.2 2Among widespread other things, plurality’s reasoning ignores (ED 401, 421 systems.
utilization of loan interlibrary See 201 F. 2d 2002). loan, book, effectively interlibrary virtually Pa. say, With
A Public libraries are indeed selective they acquire what place in their they stacks, as must only be. There is so much money and space, so shelf much necessity and the choose some reject material and justifies the rest the effort to be selective eye with an quality, demand, object and the of maintaining the library place as a of enquiry civilized by widely different people. of sorts Selectivity is thus neces- sary complex, and two these explain characteristics why review of library’s selection decisions must be limitеd: the decisions are all time, made only in extreme cases could expect one particular choices to impermissible reveal (reasons reasons even plurality would consider to be ille- gitimate), like excluding books because their authors are Democrats or critiques their organized Christianity are unsympathetic. See Ed., Board Island Trees Union Free School Dist. No. 26 v. Pico, 457 (1982) U. S. 853, 870-871 (plurality opinion). Review for rational basis is probably the most any court could owing conduct, myriad to the particular might selections that be attacked someone, and the difficulty of untangling play of factors par- behind a ticular decision. every significant
At point, however, the Internet block- ing here comparison defies process to the acquisition. Whereas scarcity traditional money and space require library to make choices about acquire, what to and the choice to be made is whether or spend not to money acquire something, blocking is the subject of a choice made after money for Internet access has spent been or committed. made available to a library’s patrons. If, therefore, a librarian refused to get a book from interlibrary loan an adult patron on the ground that the patron’s “purpose” in seeking the book was not acceptable, the librar- ian could justification find no in the fact that libraries have traditionally “collect[ed] only those materials deemed to have “requisite and appropriate Ante, quality.’” at 204. In event, in the ensuing analysis, I assume for the sake of argument that we are in a world without interlibrary loan. *36 Since makes no difference to the cost of Internet access an whether adult calls material harmful for children up or Articles of (on Confederation, these) facts like blocking necessitated is not of either by scarcity or In money space.3 the instance of the what Internet, is library acquires access, electronic and the choice to block is a choice to limit access that has been Thus, already acquired. deciding a book (unless means no against buying there is book a loan be obtained), can but the Internet block- blocking merely access in purchased its ing entirety to subject unblocking if the librarian The agrees. proper therefore is not analogy a book that passing up have been might it is either bought; a book and buying then it from keeping adults an lacking or to acceptable “purpose,” an buying and then encyclopedia out cutting pages to be anything unsuitable for thought all adults.
B The claims to plurality find for its conclusions support in the “traditional Ante, of the missio[n]” public library. ante, 205; see also J., 219 (Breyer, in concurring judg- ment) (considering “traditional library practices”). plu- thus in rality effect, argues, that the traditional responsibil- ity public libraries has called for adult access to denying books, certain bowdlerizing content of what the librar- ies let adults But, see. in fact, the plurality’s conception a public mission has library’s been the libraries rejected by themselves. And no that chose to library adult block access in the mandated way by the Act could claim history of public library this practice furnished country an implicit course, Of library allowed its patrons to use for computers any purposes might feel the need purchase more computers satisfy what would presumably be demand, greater see Brief for 23, but the Appellants answer problem to that would be to limit the number of unblocked termi nals or the hours in which they could be event, In any used. the rationale for blocking has no reference whatever to scarcity.
gloss on First allowing standards, Amendment blocking anything out unsuitable for adults. history
Institutional of public libraries in America dis- closes an general evolution toward a rule, now firmly rooted, any adult entitled to use the has access to holdings.4 its To be ap- sure, this freedom of choice was parently not inspiration within the mid-19th-century development libraries, see Shera, J. Foundations of Library: the Public The Origins Library of the Public Move- ment in England, (1949), New p. 1629-1855, and in the infancy of development “[m]oral their censorship” of read- ing material was assumed, E. Geller, Forbidden Books *37 (1984). American Public p. Libraries, 1876-1939, But even in the early century, 20th legitimacy of the librari- authority an’s as moral coming arbiter was question. into g., e. See, Belden, Looking President’s Address: Forward, 20 (1926) (“The Bull. Am. Libr. 273, Assn. li- true brary must stand for the intellectual freedom of access to word”). printed practices And the European fascism against fueled the reaction library censorship. See M. Har- History ris, (4th of Libraries in the Western World 248 ed. 1995). upshot growing was a understanding that a li- job guarantee brarian’s towas people “all had access to all supra, ideas,” by Geller, at 156, and the end of the 1930s, position librarians’ opposition “basic in censorship [had] to emerged,” Krug Harvey, & ALA and Intellectual Freedom: A Historical Overview, in Intellectual Freedom Manual, (American pp. 1974)(hereinafter xi, xv Library Association Manual); Intellectual Freedom Darling, see also In- Access, tellectual Freedom and Library Libraries, 27 Trends 315- (1979). is, That libraries do not refuse to materials patrons adult on account of their content. course, Of libraries commonly limit access on content- to, grounds neutral say, rare or especially valuable materials. Such prac tices raise no First Amendment concerns, they because to nothing have do with suppressing ideas. began appellee By McCarthyism the time assaults, its (ALA) Library developed had a Li- American Association Library brary Rights against censorship, Bill of Bill of pt. p. Rights, in Manual, 1, 7, Intellectual and an Freedom position Intellectual Freedom Committee to maintain beyond obscenity, enforcing against existing “there laws place society extra-legal in our efforts coerce the is no reading others, matter taste to confine adults to deemed suitable for to inhibit the efforts of adolescents, or expression.” writers to achieve artistic Read, Freedom to pt. Harvey, id., Krug 8; id., in see in at So also xv. & expressed I have tell, far as been able to this statement prevailing public library ideal in after administration World say general II,War and it seems fair rule that librar- as a deny requesting ies then had ceased to adults access might, indeed, materials their The adult collections. specific request, have had to amake for the literature and published surveys variety period from the show restric- library holdings, place- tions on including the circulation of availability apart open ment of stacks, materials from only upon specific sug- request.5 from the isolated But aside gestion, e.g., see, Intellectual Born, Public Libraries and pt. Freedom, id., find 4, 9, I have not been able to period any library barring from this record of a access materials in its collection on a basis other than a reader’s *38 age. question library It seems to have been out of the for a to refuse a requesting patron, book in its collection to a adult presume or to particular request. to evaluate the basis for a This postwar years by take on the is confirmed evidence dog of the During that did not the half of the bark. second 5See, e.g., M. Fiske, Book Study Selection and A of School Censorship: and Fiction, (1959); Moon, Publiс in Libraries California 69-73 “Problem” (E. 1969); in Book Selection and in Censorship the Sixties 56-58 Moon ed. Jones, F. Defusing Censorship: Handling Censor Librarian’s Guide to (W. ship (1983); Conflicts 92-99 see 173-182 also The of Books Censorship 1954). Daniels ed. century, policy
20th the ALA statements, issued a series of Library Rights, since Interpretations dubbed of the Bill of pt. library id., see commenting 1, at and 13, on administration pointing particular opposed. practices Thus, to ALA example, response by pressure in of the Ameri- Sons Jersey place can Revolution on libraries on New labels favor[ing] “advocating] materials ALA communism,” the adopted in Labeling,” opposing on it as “a “Statement Again, pt. years censor’s Id., later, tool.” at 18-19. 1, adopted against the ALA even a statement restriction library on acknowledged access to materials It minors. age restrictions common across the in were Nation variety “a including, among of forms, others, read- restricted ing rooms only,library limiting for adult use cards circulation only, of some materials to adults for adult closed collections only, interlibrary only.” pt. use 1, Id., loan for adult use opposed at 16. Nevertheless, limitations, the ALA all such saying “only parent. may . . restrict his children— only library his children—from materials and access to pt. Id., 1, services.” at 17. adopted prac- 1973,
And the ALA policy opposing already tice keeping open mentioned, certain books off the only shelves, specific request. pt. available on id., See at 42. The statement conceded that shelf,’ “‘closed ‘locked only,’ case,’ ‘adults or ‘restricted shelf’ collections” were many “common pt. Id., libraries United States.” at 43. The ALA against nonetheless in these it, came out terms: censorship “While the limitation differs from direct activities, such as removal of materials or refusal purchase publications, certain it nonetheless constitutes cen- sorship, albeit a subtle form.” Ibid.6
Amidst these and other ALA statements from the latter century, half missing. of the 20th subject however, one 6For a complete Peck, listing R. Interpretations, ALA’s Li see braries, the First Amendment and What You Need to Know Cyberspace: (2000). 148-175 *39 barring requesting is not a word about adults There from any library’s limiting collection, about materials a an purposes of his in seeking access based on evaluation adult’s practice If such a had survived into the materials. latter surely century, the 20th would find a one half statement ALA, from the had become the which nemesis about censorship sounding library holdings, anything like as sampled.7 history just bespeaks The silence shown public library gives any patron any adult American an history support plu- hand, and a without for material reading rality’s tolerating pub- Amendment of the First as library’s censorship against enquiry. of its collection adult lic
C scarcity preacquisition Thus, there is no rationale to save library blocking censorship, from treatment as support development library no for it the historical practice. blocking differently To two reasons to treat these declining buy from a a book, decision a third must be simply, library added. we can smell a rat when a Quite already just blocks material in its control, as we do when having removes books from its shelves reasons nothing tear, obsolescence, to do with wear and or lack of blocking demand. Content-based and removal tell us some- thing. that mere absence from the does not. shelves already spoken
I have acquisition about two features of poor judi- decisions that make them candidates for effective cial complexity, The first is le- review. their the number of gitimate may go point- considerations that into them, all ing way, providing one illegitimate cover reason managed likely to sneak in. A de- librarian should consider scholarly quality, purchases, mand, or esthetic alternative 7Thus, that, it is not surprising with the emergence of the circumstances case, giving rise to this the ALA has restric adopted opposing statements tions on access to adult In patrons, media like the specific electronic id., 150-153, 176-179, ternet. See 180-187.
relative cost, and so on. The second judiciary reason the shy must be reviewing acquisition about decisions sheer volume of them, and thus the might number that draw fire. Courts cannot review the every administration of li- brary disgruntled with a constituent that library fails to buy exactly what he wants to read. library
After
acquired
a
has
place,
material
in the first
variety
however,
possible
might
reasons
legiti-
that
mately support
rejection
an initial
longer
are no
play.
in
Removal of books
blocking by
or selective
controversial sub-
ject matter is not a function of limited resources and less
likely than a selection
decision
reflect an assessment of
(and
scholarly
esthetic or
merit. Removal
blocking) deci-
being
sions
obviously
so often
they
correlated with content,
tend
up
just
to show
they
what
are, and because such
decisions tend to
few,
be
courts can examine them without
facing deluge.
The difference
keep
between
choices
out
and choices to throw out is thus
perception
enormous, a
underlay
good
sense of the plurality’s conclusion in
Ed.,
Board
Island Trees Union Free School Dist.
26No.
(1982),
Pico,
v.
I I I good There is no reason, then, to blocking treat of adult enquiry anything as different from the censorship pre- sumptively is. For this reason, I would hold in accordancе scrutiny conventional strict library’s that a practice of blocking would patron’s violate an adult First and Four- teenth right Amendment to be free censorship, (as here) unjustified when by any legitimate interest screening children from harmful ground, material.8 On that assume, 8 I although there is no occasion decide, here origina tors of the material by blocked the Internet filters object could to the wall between them and adult audience they attract, might although they calls in its current breadth blocking requirement Act’s is it- action recipient, unconstitutional self unconstitutional. *41 would be audience private that their given unlikely plaintiffs,
would be more action, might have no many of them by library’s unaffected It is for library does. work than the blocking their library idea that a rights of Amendment and Fourteenth that I on the First rely this reason injury by more acute who would experience adult patrons, to harm a as apt identified the software being anything denied a look (and it). terms, if In practical got along child else blocked whatever engaging be from kept Government are going libraries and the National recognizing no alternative censorship, adult there is unjustifiable least censorship as at paternalistic viewer’s or reader’s to be free of right Ed., Board an of the right speaker. plurality adjunct core (1982), Pico, S. 853 U. 26 v. Island Trees Union Free School Dist. No. library to using of students a school recognized right saw this and id., shelves, at 865-868 from the object to the removal of disfavored books J.). anal- an Brennan, token, recognize By we should (opinion the same users, be may who ogous library’s on the of a adult Internet right part solely comes users whose access among the 10% of American Internet 2d, There should 422. terminals, 201 F. through library see injury real blocking produces therefore be no question censorship is denied. access whose by patrons for redress support sufficient suit