INTRODUCTION

The mandatory blocking provisions of the Children’s Internet Protection Act (“CIPA”) impose unprecedented, sweeping federal speech restrictions on public libraries nationwide, in clear violation of the First Amendment. It is undisputed that installation of commercially available software causes the blocking of a large amount of speech that is constitutionally protected for all library patrons, and an even larger amount that is constitutionally protected for adults. Allowing wholly discretionary disabling, at least for adults, does not solve the resulting constitutional problem; indeed, it exacerbates it by making individual librarians into case-by-case standardless censors. Moreover, while the evidence shows that sexually explicit material on the Internet does pose some real challenges for libraries, it is also clear that libraries have available options for managing that problem that are much less restrictive than mandatory blocking – and just as effective.

It follows that any library induced into complying with CIPA would violate the First Amendment rights of patrons, which renders this funding statute invalid under South Dakota v. Dole, 483 U.S. 203 (1987). As plaintiffs alleged in their complaints and proved at trial, CIPA’s requirement that libraries employ blocking software on all their computers is an impermissible content-based restriction on speech, a prior restraint, vague, and overbroad. In addition, CIPA imposes an unconstitutional condition on public libraries by distorting the usual functioning of those profoundly democratizing institutions and restricting the uniquely diverse medium of the Internet.

I. CIPA VIOLATES THE FIRST AMENDMENT RIGHTS OF LIBRARY PATRONS AND THEREFORE CANNOT BE SUSTAINED AS A VALID EXERCISE OF CONGRESS’S SPENDING POWER.

CIPA cannot be sustained as a valid exercise of Congress’s spending power because it induces libraries that receive Internet funding to violate the First Amendment. As defendants concede, when Congress distributes funds to state and local government entities providing services, it cannot do so in a way that “induces [those entities] to engage in activities that would themselves be unconstitutional.” South Dakota v. Dole, 483 U.S. 203, 210 (1987). Defendants are therefore wrong when they suggest that the funding nature of CIPA’s restrictions remove this case from any heightened First Amendment scrutiny. To the contrary, the focus of the inquiry is on whether the law induces libraries to violate the First Amendment, and the level of scrutiny is drawn from the body of established First Amendment doctrine. Thus, there is no different First Amendment analysis under Dole. Strict scrutiny applies, and CIPA cannot satisfy the rigors of that analysis. Thus, because CIPA will induce library recipients to violate the First Amendment, it must be invalidated.

A. The Provision of Internet Access in Public Libraries Lies at the Heart of the First Amendment.

Through CIPA, Congress has inflicted a profound double injury upon the First Amendment. Not only does CIPA unduly restrict the most diverse, expansive medium ever created, it also compounds the problem by regulating that medium in one of the most democratizing, speech-enhancing institutions in America – the public library. By targeting the intersection of these two First Amendment fora, CIPA ultimately weakens both, severely undermining the core constitutional values otherwise enhanced by the provision of Internet access in public libraries.

1. Speech on the Internet Enjoys Maximum Constitutional Protection.

The Internet is a unique, expansive medium for worldwide communication. There is an enormous array of information available on the Internet, including art, literature, medical and scientific information, humor, news, religion, political commentary, music, and government information. As the Supreme Court recognized in Reno v. ACLU, 521 U.S. 844, 870 (1997), expression on the Internet is “as diverse as human thought.” Indeed, with its unprecedented breadth and scope, the Internet facilitates “vast democratic forums.” Id. at 868.

The Internet presents low entry barriers to anyone who wishes to provide or distribute information. Unlike television, cable, radio, newspapers, magazines or books, the Internet provides an opportunity for those with Internet access to communicate with a worldwide audience. Plaintiffs’ Proposed Findings of Fact 20 (hereinafter “PFF”).^[1] Currently, at least 400 million people use the Internet worldwide, including over 143 million Americans. PFF 21.

The World Wide Web (the “Web”) is the best known category of communication over the Internet. The Web “allows users to search for and retrieve information stored in remote computers.” Reno, 521 U.S. at 852. Currently, it is estimated that the Web comprises approximately two billion Web “pages,” PFF 53, with about 1.5 million new web pages created each day, PFF 55. “The Web is thus comparable, from the readers’ viewpoint, to . . . a vast library including millions of readily available and indexed publications.” Reno, 521 U.S. at 853.

Given the virtually boundless potential of expression on the Internet, the Supreme Court confirmed in Reno v. ACLU that “[t]his dynamic, multifaceted category of communication” is entitled to the highest level of First Amendment protection, without qualification. Id. at 870, 872. 2. Public Libraries Play a Fundamental Role in the Dissemination of Ideas and Information, Including Internet Speech.

Public libraries occupy a unique place in our democratic society. For many years, public libraries have served as invaluable resources for the communication and receipt of information and the free exchange of ideas. Indeed, the public library, by its very nature, is “designed for freewheeling inquiry.” Board of Education v. Pico, 457 U.S. 853, 915 (1982) (Rehnquist, J., dissenting). As such, the library is a “mighty resource in the free marketplace of ideas.” Minarcini v. Strongsville City Sch. Dist., 541 F.2d 577, 582 (6th Cir. 1976).

As much as any institution, the public library has safeguarded the vital First Amendment right to receive speech and expression.^[2] That right “is vigorously enforced in the context of a public library, ‘the quintessential locus of the receipt of information.’” Sund v. City of Wichita Falls, 121 F. Supp. 2d 530, 548 (N.D. Tex. 2000) (quoting Kreimer v. Bureau of Police, 958 F.2d 1242, 1255 (3d Cir. 1992)).

In its role as information provider, the public library is, for purposes of First Amendment analysis, a “limited public forum, a type of designated public fora.” Kreimer v. Bureau of Police, 958 F.2d 1242, 1259 (3d Cir. 1992); see also Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 24 F. Supp. 2d 552, 563 (E.D. Va. 1998) (“Mainstream Loudoun II”); Sund, 121 F. Supp. 2d at 548. As the Third Circuit made clear in Kreimer, libraries are designated “for expressive activity, namely, the communication of the written word.” 958 F.2d at 1259 (quotation and citation omitted). Thus, “[w]hile the nature of the public library would clearly not be compatible with many forms of expressive activity, such as giving speeches or holding rallies, . . . it is compatible with . . . the receipt and communication of information through the Internet.” Mainstream Loudoun II, 24 F. Supp. 2d at 563.

The defendants have suggested that some library boards have defined their fora to exclude one type of content – sexually explicit speech – and can therefore mandate the use of blocking software without violating the Constitution. That argument, however, is both legally and factually flawed. As an initial matter, it flies in the face of fundamental First Amendment principles, which make clear that once the government dedicates a forum to a general, speech-promoting use – in this case, the communication and receipt of the broadest spectrum of information – it cannot limit that use by disfavoring certain expression. See, e.g., Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 837 (1995) (holding that once the government creates a forum to facilitate private expression, it may not exclude the entire category of religious speech); see also infra Part III.

Nor does the Constitution permit libraries to redefine their missions on an ad hoc basis to justify censorship. In defining its purpose as information-provider, the public library historically has offered a wide and diverse range of expression to the public and has prohibited exclusion of materials based on disfavored content or viewpoints. PFF 94. To that end, libraries continually reaffirm their central role in promoting intellectual freedom, and the vast majority of public libraries across the country – including all of the government’s library witnesses, PFF 93 – have adopted or endorsed the Library Bill of Rights, Pls.’ Ex. 1, the Freedom to Read Statement, Pls.’ Ex. 9, and other policies safeguarding First Amendment rights. As in the funding context, libraries cannot now recast their speech-enhancing mission “lest the First Amendment be reduced to a simple semantic exercise.” Legal Services Corp. v. Velazquez, 531 U.S. 533, 547 (2001).^[3]

CIPA’s extensive, federally mandated incursion into the libraries’ speech-enhancing function necessarily undercuts the institutions’ primary purpose. CIPA’s blocking mandate is particularly harmful in light of the crucial role libraries have played in making the extensive resources of the Internet available to the public. Today, free Internet access is available in nearly every one of the 16,000 public library across the country. PFF 74. As a result, over 14 million people in the United States use the public library for Internet access. PFF 84. For certain segments of the population, library Internet access is crucial. As numerous government studies have demonstrated, the “digital divide” persists, and many groups, including minorities, low-income persons, the less-educated, and the unemployed, are far less likely to have home Internet access. PFF 85-91. Not surprisingly, library Internet use for those groups far exceeds that of the general population. PFF 85-86. In fact, for the many Americans who cannot afford a personal computer or network connections, public libraries offer the only means of gaining access to the Internet. PFF 86-91.

The widespread availability of Internet access in public libraries is due, in large part, to the availability of public funding, including the funding programs regulated by CIPA. As of 2000, nearly 50% of public libraries received e-rate discounts, and approximately 70% of libraries serving the poorest communities receive those discounts. PFF 91, 462. Similarly, over 18% of public libraries receive LSTA or other federal grants, and more than 25% of libraries serving the poorest communities receive such grants. PFF 482. By conditioning federal funding on the installation and use of blocking software, CIPA transforms these democratizing programs into tools of nationwide, mandatory censorship.

3. Blocking Software Does Not Mirror Traditional Collection Development in Public Libraries.

Faced with the undeniably speech-enhancing nature of the Internet and the public library’s indisputable status as a forum for freewheeling inquiry, the government has sought to cast CIPA’s blocking mandate as somehow analogous to classic library collection development decisionmaking. That analogy, however, fails for a variety of reasons.

First, librarians have absolutely no involvement in the blocking decisions made by third-party blocking software companies. Those decisions are made by non-librarians who know nothing of a library’s existing physical collections, the communities served by libraries, or the criteria used by librarians in selecting physical materials. In fact, because the software companies treat their blocking lists as proprietary and refuse to provide those lists to customers, PFF 6, 125, libraries installing blocking software do not even know what Internet information they are withholding from the public. The extremely limited, sporadic unblocking performed at public libraries, PFF 281-83, hardly cures this fatal flaw.

Moreover, the selection of physical materials necessarily is limited by space and resource constraints inapplicable to the Internet. For this reason, all libraries offering public Internet access provide patrons with innumerable useless Web sites that they undoubtedly would not include in their physical collections. PFF 101. While some libraries have suggested that Internet access suffers from its own resource limitations, in that there are a limited number of terminals available, they are of an entirely different and less severe character than those constraining physical collections and can be addressed by time limits. In fact, blocking Internet access actually imposes its own resource limitations, not only because of the cost of the software, but also because the blocking and unblocking process creates delays in accessing information online. PFF 104.

To the extent classic collection development principles have any application in the Internet context, it is only through the selection of “recommended sites,” which many libraries offer as a means of directing patrons to particularly useful or interesting Internet information. PFF 305. Just as physical collections necessarily are constrained by space and resource limitations, libraries can select and recommend only a small fraction of available Web sites. If anything, it is these lists of recommended sites – and not the unknown lists of block and unblocked sites – that most closely resemble the traditional selection of physical materials in libraries.

Unlike recommended site lists, general Internet provision is more consistent with the interlibrary loan process, through which libraries routinely make available to patrons materials and information not contained in the libraries’ physical collection. As the undisputed evidence at trial made clear, interlibrary loan policy dictates that libraries assist patrons in borrowing materials from other libraries, regardless of whether the requested item falls within the borrowing library’s collection development standards. PFF 98, 99, 339-40. Just as an interlibrary loan request need not conform to the borrowing library’s physical selection criteria, patron Internet access need not comply with those criteria. In both cases, the library is fulfilling its traditional role by providing patrons with the broadest access to available information. PFF 14, 99, 101.

Finally, blocking Internet access involves an active, rather than passive exclusion of certain types of content. Because an Internet connection provides immediate access to the entire Internet so “no appreciable expenditure of library time or resources is required to make a particular Internet publication available” and indeed “a library must actually expend resources to restrict Internet access to a publication that is otherwise immediately available,” the blocking of Internet sites mandated by CIPA is akin to a library’s purchasing an encyclopedia or a magazine and tearing out or redacting some of its content. Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 2 F. Supp. 2d 783, 793-94 (E.D. Va. 1998) (“Mainstream Loudoun I”). When a library declines to carry a book in hard copy, it conveys no discernable message about the content of that book. When a Web site is blocked on the library’s Internet terminals, however, the library (through a software company) lets patrons know that it expressly disfavors the site’s content.

B. The Uncontroverted Evidence Presented at Trial Establishes that the Blocking Software Used to Comply with CIPA Prohibits Library Patrons from Accessing a Vast Amount of Protected Speech.

The evidence presented at trial is unequivocal on a fundamental point: the software required to comply with CIPA’s conditions blocks a substantial amount of speech far broader than the obscene, child pornography, and “harmful to minors” visual images prohibited by CIPA.

The government concedes that none of the blocking software companies offers content categories that are limited – or indeed tied in any way – to CIPA’s legal definitions of obscenity, child pornography, or harmful to minors. PFF 3, 114. There is no judicial involvement in the blocking software companies’ decisions about which Web sites to block, and no attempt is made by these companies to conform their decisions to the legal definitions of speech that is obscene, child pornography, or harmful to minors, or to take into account local community standards in making these determinations. PFF 3, 4, 114-16.^[4]

To the contrary, the categories used by blocking software companies to block sexually explicit content cover a vast range of material that does not fall within CIPA’s prohibitions. To begin with, although CIPA requires libraries to protect against access to “visual depictions,” no blocking software blocks images while allowing a patron to view the text. PFF 192.^[5] Moreover, the category definitions applied by the filter companies make it inevitable that they will block much more speech than CIPA requires. PFF3, 113-21, 157, 172-74. These definitions include a significant amount of content (such as erotic texts or non-erotic nude images) that would not be considered harmful to minors (let alone obscene) under CIPA’s definition. PFF113-21, 172-74. And because the software does not differentiate adult use from use by minors, it inevitably blocks an additional large quantity of harmful to minors speech that is fully protected as to adults.^[6] Moreover, libraries can and do enable blocking software categories, such as N2H2’s “Tasteless” category, that will block an entire category of content that is wholly unrelated to the Act’s prohibited categories. PFF 172-74.

The overbroad sweep of the blocking software category definitions is compounded by the fact that the companies persistently block sites that clearly do not match even those definitions, a fact demonstrated by both plaintiffs’ and defendants’ experts. The study performed by blocking software expert Benjamin Edelman and the three librarian experts showed that four popular blocking software products incorrectly blocked between 4,300 and 6,300 pages that would be of use or value in a public library. PFF 9, 158, 200-19, 224-40. It is undisputed that these pages represent only a small fraction of Web pages wrongly blocking by these blocking products. PFF 9, 158.

Both plaintiffs’ and defendant’s experts identified a number of Web pages that were incorrectly blocked by the software. Examples include: a page containing a report on “Male Sex Work & AIDS in Canada,” PFF 220; “kittyporn.com,” a parody site featuring pictures of kittens, PFF 221; a promotional site for the movie “The Opposite of Sex,” id.; a page from Salon.com, a popular online magazine, PFF 222; http://www.afraidtoask.com/index.html, the homepage of one of the plaintiffs’ Web site, which offers information on personal health issues, PFF 224; a Web site featuring links to informational and educational Web sites about menstruation, PFF 231; http://www.bi.org, a site serving the bisexual community, PFF 233; http://www.cancerftr.wkmc.com, the Web site for the Willis-Knighton Cancer Center in Shreveport, Louisiana, PFF 234; http://www.barcelonareview.com, an online journal of international contemporary fiction and poetry, PFF 236; http://www.girlsplace.com, a site devoted to providing news, health and recreational information to girls, PFF 237; http://www.muchlove.org, the Web site for a Southern California animal rescue organization, PFF 239; a site on teen sexual health, PFF 241; http://www.bored.com, a page on a Web site devoted to providing links to the “most interesting sites on the Web,” PFF 247; http://www.altheweb.com, which provides a brief biography of former Vice President Gore, PFF 249; http://sportsillustrated.cnn.com, PFF 251; and http://www.goodbyemag.com/nov97, the November-December 1997 issue of the Goodbye Magazine, an online magazine devoted to obituaries, PFF 257.

That the overblocking errors made by blocking software are not merely isolated incidents, but instead are the result of limitations inherent to the products, was demonstrated by both Mr. Edelman and Dr. Nunberg. As Dr. Nunberg explained, the enormous size and constantly changing content of the World Wide Web forces blocking software makers to rely on automated tools, cursory human review, and classification techniques that will inevitably result in a significant amount of misclassification. PFF 129-52, 190-92. Among other things, blocking software companies typically block at the top-level of a Web site and as a result the individual pages within that site will be blocked even if they do not meet the content category definition. PFF 146-49, 189-90. And, even though content on certain sites may change daily or hourly, blocking software makers do not regularly re-review sites to ensure the accuracy of their classifications. PFF 150-52, 191. Further, certain architectural properties of the Web require blocking software companies to use a number of techniques, such as IP address blocking, and the blocking of so-called “loophole sites,” that inevitably block a large amount of protected speech. PFF 42-45, 70-73, 186-89, 196-98.

At trial, not only did defendants fail to refute plaintiffs’ evidence concerning the persistent and significant overblocking endemic to blocking software, they bolstered that evidence through their own witnesses. In his study of the Internet access logs of three libraries using blocking software to comply with CIPA, defendants’ expert witness Cory Finnell found that of the sites blocked by these libraries, up to 15% were wrongly blocked. PFF 10, 159. To be sure, Mr. Finnell’s results underestimate the actual percentage of wrongly blocked sites, both because of the numerous methodological flaws in his study and the fact that he judged the effectiveness of the blocks according to the blocking software companies’ categories – which, as plaintiffs have explained, are much broader than the images prohibited by CIPA. In any event, even accepting Mr. Finnell’s estimated range of overblocking of 7% to 15%, PFF 10, 159, extrapolating those numbers means that in Greenville, South Carolina alone, thousands of patrons would be wrongly denied access to protected speech on the Internet every year. PFF 162.^[7] And based on Mr. Finnell’s estimates, the use of mandatory blocking software in all of America’s libraries will wrongly block millions of access attempts to Web content that does not even meet the relaxed standards of blocking software companies. PFF 11, 166.^[8] By the defendants’ own estimates, then, the blocking software used to comply with CIPA will block library patrons’ access to an enormous amount of Internet speech that should not be blocked according to either the law or the blocking software’s own categories.

Although overblocking affects a wide variety of Web sites, the evidence showed that blocking software tends to block disproportionately sites dealing with gay-related issues, safe sex, sexual health, and family planning. PFF 220, 222, 230, 242, 245, 246, 347. For example, in his extremely limited study of blocking products, defendants’ expert witness Chris Lemmons found that the software wrongly blocked sites such as lesbian.org, lesbian.com, sexrespect.com, and condomania.com, a site on teen sexual health, and a site discussing “The Bible and the Homosexual.” PFF 241-46.

Finally, the evidence at trial demonstrated that in addition to its overblocking problems, blocking software also fails to block a significant number of sexually explicit sites that arguably fall within CIPA’s categories. Plaintiffs’ experts explained that due to the enormous size and exponential growth of the Web, it is simply impossible for blocking software companies to keep up with the number of new sexually explicit sites. PFF 264-76. Because of inherent limitations associated with blocking software, these companies will fail to “harvest” and classify a substantial number of sexually explicit sites – for example, foreign language sites, and sexually explicit sites that cannot be found through spidering or other harvesting techniques. Id. That blocking software regularly fails to catch all sexually explicit Internet material was confirmed by the government’s own experts. PFF 267.

C. CIPA’s Content-Based Restriction on Speech Fails Strict Scrutiny.

By its terms and effect, CIPA imposes a content-based restriction on speech that is subject to strict scrutiny. CIPA’s requirement that libraries take steps to prevent patron access to visual depictions that are obscene, child pornography, or harmful to minors draws a line between prohibited and acceptable speech on the basis of its content. To comply with CIPA, libraries must install commercial blocking software – the only feasible “technology protection measure” available to libraries to comply with CIPA’s certification provisions – that blocks Web pages according to their content. Libraries that enable categories such as “adult/sexually explicit” and “nudity” will block patrons from viewing Web pages because of the content of those pages.^[9] Because, as explained above, see supra Part I.A.2, public libraries are public fora, CIPA’s content-based restrictions on Internet access in libraries cannot be upheld unless they satisfy the most exacting scrutiny. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).^[10]

“Content-based regulations are presumptively invalid.” R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (citing Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115 (1991)); see also United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 817 (2000) (“When the Government seeks to restrict speech based on its content, the usual presumption of constitutionality afforded congressional enactments is reversed.”); Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992) (“This Court has held time and time again: ‘Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.’”) (quoting Regan v. Time, Inc., 468 U.S. 641, 648-49 (1984)). The presumption against CIPA’s content-based distinction is not changed because it targets sexually explicit speech. To the contrary, it is well settled that sexually explicit speech that does not fall within the narrow categories of unprotected expression is entitled to First Amendment protection.^[11] Therefore, CIPA’s provisions must be stricken unless they are narrowly tailored to serve a compelling government interest “without unnecessarily interfering with First Amendment freedoms.” Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989) (quoting Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637 (1980)). “When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.” Playboy, 529 U.S. at 816; Reno, 521 U.S. at 879.

As the evidence at trial plainly establishes, CIPA will result in the suppression of a vast amount of Internet content and thus is far from narrowly tailored to serve the government’s interest in prohibiting adults’ access to images that are obscene or show child pornography. By using blocking software companies’ categories to comply with CIPA, libraries will block an enormous amount of content that does not even approach the narrow confines of illegal speech for adults, as well as a substantial amount of speech that cannot be considered harmful to minors. Sexually explicit text, which is not covered by CIPA, will nonetheless be blocked because all currently available blocking software cannot block images only. Further, the tendency of blocking software companies to seek to satisfy the least tolerant consumer “means that any communication . . . will be judged by the standards of the community most likely to be offended by the message.” Reno, 521 U.S. at 877-78.^[12] These characteristics of blocking software would be enough, standing alone, to render CIPA’s restrictions constitutionally overbroad. But as the unequivocal evidence at trial showed, these products block a far wider range of fully protected speech. Such overblocking, as both the plaintiffs’ and the defendants’ experts demonstrated, is not constitutionally de minimis; rather, the use of blocking software in libraries will lead to the wrongful blocking of millions of attempts to access information each year. PFF 11, 166.

CIPA thus takes a meat ax approach to an area that requires far more sensitive tools. As a result, the law does not even approach the level of narrow tailoring required by the First Amendment. As the Supreme Court has explained, “the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn. Error in marking that line exacts an extraordinary cost.” Playboy, 529 U.S. at 817-18 (internal quotation marks and citation omitted).

Contrary to defendants’ suggestion, the overbroad reach of the blocking software is not remedied by the ability of libraries to customize the software products. Although libraries may choose which categories to enable, and have the ability to override manually the software’s blocked sites list, it is simply impossible, as a practical matter, for librarians to winnow the software’s blocking lists to block only those images covered by CIPA. Significantly, librarians do not have access to the blocked site lists of the software makers, and thus cannot review the lists to determine whether particular sites should be blocked or not. PFF 6, 125. Rather, the discovery of wrongly blocked sites is left up to trial and error. Given the hundreds of thousands of sites that may be contained on blocking lists, the fact that librarians may be able to unblock even hundreds of sites using this method would not fix the significant amount of unjustified blocking produced by the software.

Nor do the Act’s disabling provisions cure the overbroad reach of CIPA’s restrictions. As an initial matter, there are numerous technical constraints that make it difficult, if not impossible, to tailor blocking software so that it complies with CIPA. PFF 297-301. Consequently, libraries face serious technical obstacles to implementing the Act’s disabling provisions.

More fundamentally, because of the stigma created by the requirement that a patron seek a librarian’s approval before accessing a blocked site, the disabling provisions are essentially ineffective. Indeed, the disabling provisions exacerbate the constitutional infirmities of the law by imposing an unconstitutional stigma and chilling effect on requesting library patrons. In a variety of contexts, the Supreme Court has recognized the severe chilling effect of forcing citizens to publicly and openly request access to disfavored, though constitutionally protected, speech. See, e.g., Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 754 (1996) (noting that “written notice” requirement for access to “patently offensive” cable channels “will further restrict viewing by subscribers who fear for their reputations should the operator, advertently or inadvertently, disclose the list of those who wish to watch the ‘patently offensive channel’”); Lamont v. Postmaster General, 381 U.S. 301, 307 (1965) (striking requirement that recipients of Communist literature notify the Post Office that they wish to receive those materials).

Plaintiffs’ patron and librarian witnesses testified that patrons would be unlikely to request unblocking of sites on sensitive topics because of the stigma attached to making such a request. PFF 277-79. This testimony is confirmed by common sense: it is hardly speculative to conclude that people will be reluctant to pursue the Act’s disabling provisions if it requires them to reveal controversial, embarrassing, or sensitive facts. Along with basic notions of privacy, most people are aware that blocking software often block access to materials that, although constitutionally protected, are undesirable, offensive, or reprehensible to some. Indeed, the premise that patrons will not use the Act’s disabling provisions because of the stigma attached to making unblocking requests was supported by the experience of defendants’ own library witnesses. PFF 280-83. In Greenville, for example, the library received only 28 requests for unblocking during the nearly two years it has used blocking software, PFF 282; see also PFF 281, 283, despite the fact that during that same time, using the estimates of Mr. Finnell, there were tens of thousands of access requests that were wrongly blocked by Greenville’s blocking software. The logical inference to be drawn from this example is that patrons are deterred from asking librarians to unblock sites. Thus, CIPA’s disabling provisions do not solve the Act’s unconstitutionally broad restriction on speech.^[13]

Just as CIPA is not narrowly tailored to serve the government’s goal of preventing access to illegal obscenity and child pornography, CIPA cannot be justified as a means to protect children. CIPA is primarily defended as a means to protect minors from exposure to sexually explicit material in the public library. See S. Rep. No. 106-141, at 7 (1999) (important purpose of CIPA is that of “protecting children from exposure to sexually explicit material”) (emphasis added); id. at 1 (“The purpose of this bill is to protect America’s children . . .”) (emphasis added). Because a law that prohibits speech to protect minors is by definition targeted at the content of that speech, this justification confirms that CIPA must satisfy strict scrutiny. Playboy, 529 U.S. at 811 (“The overriding justification for the regulation is concern for the effect of the subject matter on young viewers. Section 505 is not justified without reference to the content of the regulated speech.” (internal quotations and citations omitted); Reno, 521 U.S. at 868 (“And the purpose of the CDA is to protect children from the primary effects of ‘indecent’ and ‘patently offensive’ speech, rather than any ‘secondary’ effect of such speech. Thus, the CDA is a content-based blanket restriction on speech . . . .”).

CIPA’s broad restriction on adult speech cannot be justified solely by reference to the government’s interest in protecting children. Although the Supreme Court has “repeatedly recognized the governmental interest in protecting children from harmful materials[,] . . . that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not ‘reduc[e] the adult population . . . to . . . only what is fit for children.’” Reno, 521 U.S. at 875 (citations omitted). But that is precisely what CIPA does: it requires libraries to ban adult patrons’ access to a vast amount of Internet content in the name of protecting children from viewing sexually explicit material. “Surely, this is to burn the house to roast the pig.” Butler v. Michigan, 352 U.S. 380, 383 (1957); see also Denver Area, 518 U.S. at 759; Sable, 492 U.S. at 128; Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74 (1983) (“The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.”); ACLU v. Reno, 217 F.3d 162, 173 (3d Cir. 2000). As the Supreme Court in Reno explained:

In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.

521 U.S. at 874; see also Playboy, 529 U.S. at 814 (“[E]ven where the speech is indecent and enters the home, the objective of shielding children does not suffice to support a blanket ban if the protection can be accomplished by a less restrictive alternative.”).

The remaining interest advanced by defendants in support of CIPA – the interest in preventing library patrons from engaging in behavior related to viewing sexually explicit material or otherwise offending other patrons by viewing such material in the public library – also fails to satisfy strict scrutiny. “This justification focuses only on the content of the speech and the direct impact that speech has on its listeners.” Boos v. Barry, 485 U.S. 312, 321 (1988) (opinion of O’Connor, J.). Such a justification always warrants strict scrutiny. See id.; Playboy, 529 U.S. at 812-13; Reno, 521 U.S. at 868; Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992); Simon & Schuster, Inc. v. New York State Crime Victims Bd., 502 U.S. 105, 118 (1991). Indeed, the government’s purported interest in shielding others from a viewer’s reaction to speech is in itself suspect. “[T]he Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather . . . the burden normally falls upon the viewer to ‘avoid further bombardment of (his) sensibilities simply by averting (his) eyes.’” Erznoznik v. City of Jacksonville, 422 U.S. 205, 210-11 (1975). “Where the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails, even where no less restrictive alternative exists. We are expected to protect our own sensibilities ‘simply by averting [our] eyes.’” Playboy, 529 U.S. at 813 (quoting Cohen v. California, 403 U.S. 15, 21 (1971)).

Because CIPA’s ban on speech is so wide, and includes a significant amount of Internet speech that is in no way related – much less tailored – to the images CIPA seeks to prohibit, the law fails strict scrutiny even without the existence of less restrictive alternatives. See id. At the very least, “[t]he breadth of this content-based restriction of speech imposes an especially heavy burden on the Government to explain why a less restrictive provision would not be as effective as [CIPA].” Reno, 521 U.S. at 879. Defendants have wholly failed to carry their burden of showing the absence of any less restrictive alternative that could further their interests “without unnecessarily interfering with First Amendment freedoms.” Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637 (1980); see also Mainstream Loudoun II, 24 F. Supp. 2d at 566-67 (finding numerous less restrictive alternatives to mandatory blocking of Internet access in public library).

At trial, plaintiffs identified a number of alternative methods that, used alone or in conjunction, would further the government’s stated interests in a manner far less burdensome on protected speech than the mandatory use of blocking software for all adults and all minors regardless of age. These alternatives include the optional use of blocking software; policies under which parents decide whether their children will use terminals with blocking software; the use of blocking software only for younger children (either restricted to children’s areas or through age identification policies); enforcement of local Internet use policies; training in Internet usage; steering patrons to sites selected by librarians; installation of privacy screens or recessed monitors; and the segregation of unblocked computers or placing unblocked computers in well-trafficked areas. PFF 303-09, 311-17.^[14]

These less restrictive alternatives may not be perfect, but the government failed to prove that they are sufficiently ineffective to justify Congress’s decision to opt in favor of mandatory blocking software everywhere. To the contrary, 93% of America’s libraries manage Internet-related issues without mandating such software for adults,^[15] and plaintiffs’ libraries testified that they use many of the alternatives and receive few complaints. PFF 2, 309. At most, defendants presented two library witnesses who testified to unsuccessful experiences using privacy screens. But not one of the defendants’ library witnesses explored the feasibility of using all of the other available options, or some combination of those options, including less restrictive use of blocking software (such as parental permission). See Playboy, 529 U.S. at 824 (“A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act.”). At the same time, of course, blocking software is itself only marginally effective. Although the Greenville library witnesses testified that the library’s previous attempts to address problems related to patrons viewing sexually explicit Web sites had been ineffective, those problems persisted even after Greenville installed its blocking software. See Defs’ Ex. 134. The testimony of plaintiffs’ and defendant’s expert witnesses, moreover, showed that blocking software regularly fails to block the material prohibited by CIPA. PFF 12, 264-76. At best, installation of blocking software will delay a patron’s effort to locate sexually explicit Web sites; there will still be a multitude of such sites accessible to determined users of Internet terminals in libraries. Given the serious questions about the general efficacy of blocking software, and the near absence of evidence concerning the effectiveness of the proposed alternatives, defendants have utterly failed to carry their burden of showing that CIPA is the only effective means for serving the government’s interest (assuming that interest could ever justify such a broad suppression of speech).

Further, it is not as if Congress was unaware of less restrictive alternatives when it passed CIPA. The legislation containing CIPA also contained the “Neighborhood Children’s Protection Act,” or “NCIPA,” which unlike CIPA applies only to minors and requires schools and libraries to hold a public hearing and adopt and implement an Internet safety policy that addresses: “access by minors to inappropriate matter on the Internet”; “the safety and security of minors” when using email, chat rooms, etc. ; “unauthorized access, including so-called ‘hacking,’ and other unlawful activities by minors online”; unauthorized disclosure of minors’ personal information; and “measures designed to restrict minors’ access to materials harmful to minors.” 47 U.S.C. § 254(l). NCIPA’s provisions present a plausible, less-restrictive alternative to CIPA, in that under NCIPA, libraries must address and make localized decisions about Internet-related issues,^[16] perhaps employing some of the alternatives suggested by plaintiffs. Congress’s knowledge of NCIPA renders defendants’ argument that CIPA is the only effective means for furthering the government’s interest that much more suspect. See Playboy, 529 U.S. at 816.

Finally, for the same reasons that CIPA’s lack of narrow tailoring fails strict scrutiny, the law is unconstitutionally overbroad. Overbreadth and narrow tailoring are in some senses flip sides of the same coin; a restriction that is overbroad and suppresses a substantial amount of constitutionally protected speech is, by definition, not narrowly tailored. See, e.g., Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 482 (1989) (“Quite obviously, the rule . . . that a statute . . . must be ‘narrowly tailored’ . . . prevents a statute from being overbroad.”). CIPA is therefore invalid under First Amendment overbreadth doctrine, which requires the facial invalidation of statutes that prohibit some unprotected speech but by their scope also reach a substantial amount of constitutionally protected speech. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973); United States v. Kalb, 234 F.3d 827, 834 (3d Cir. 2000), cert. denied, 122 S. Ct. 918 (2002); Kreimer, 958 F.2d at 1265. “In such cases, it has been the judgment of [the Supreme] Court that the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes.” Broadrick, 413 U.S. at 612.

D. CIPA Imposes an Unconstitutional Prior Restraint on Speech.

CIPA is unconstitutional for the additional reason that its blocking mandate imposes an unlawful prior restraint by effectively silencing speech prior to its dissemination in public libraries, and prior to any judicial determination of the proper level of protection afforded that speech. By delegating the authority to restrict speech to third-party, non-governmental actors who will not reveal what they are censoring, moreover, CIPA exacerbates the constitutional infirmities inherent in any prior restraint. CIPA’s disabling provisions inflict further First Amendment injury by vesting librarians with unbridled discretion to undo selectively the blocking companies’ censorship decisions.

1. CIPA’s Basic Blocking Requirements Create an Ongoing System of Unlawful Prior Restraint.

Even assuming, contrary to the overwhelming evidence presented at trial, that the “technology protection measures” identified in CIPA block only sexually explicit Web sites, CIPA still would impose an unlawful prior restraint on protected expression. As noted above, sexually explicit speech that does not fall within the narrow categories identified in CIPA is entitled to First Amendment protection. For this reason, government entities – including public libraries – must apply strict, exacting standards when attempting to identify whether speech is unprotected or “illegal.” See, e.g., Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66 (1963) (“[The Supreme Court’s] insistence that regulations of obscenity scrupulously embody the most rigorous procedural safeguards is . . . but a special instance of the larger principle that the freedoms of expression must be ringed about with adequate bulwarks. . . . [T]he line between speech unconditionally guaranteed and speech which may legitimately be regulated is . . . finely drawn. . . . The separation of legitimate from illegitimate speech calls for sensitive tools.”) (quotation and citation omitted); see also, e.g., Playboy, 529 U.S. at 817-818. As with other prior restraints, however, CIPA impermissibly mandates that government entities silence expression prior to its dissemination, and well in advance – indeed, in the absence – of any judicial review of the speech in question. Without proper procedural safeguards – which are not only insufficient, but actually non-existent here – CIPA’s blocking requirements cannot stand. See, e.g., FW/PBS, Inc. v. Dallas, 493 U.S. 215, 227 (1990) (listing procedural requirements necessary to guard against unconstitutional prior restraints, including brevity of actual restraint, expeditious judicial review of decision, censor bearing burden of going to court and burden of proof); Freedman v. Maryland, 380 U.S. 51, 59 (1965).

CIPA’s federally mandated system of prior restraints is not insulated from review merely because the information in question may be available to some patrons elsewhere. “[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Reno, 521 U.S. at 880 (internal quotation marks and citation omitted). See, e.g., City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) (striking down as prior restraint city ordinance requiring a permit to place newspaper boxes on city sidewalks, despite the availability of alternate means to distribute newspapers); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556 (1975) (invalidating exclusion of the musical “Hair” from a municipal auditorium, and stating: “Even if a privately owned forum had been available, that fact alone would not justify an otherwise impermissible prior restraint. . . . Thus, it does not matter for purposes of this case that the board’s decision might not have had the effect of total suppression of the musical in the community.”); Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 688 (1968) (noting that evils of prior restraints “are not rendered less objectionable because the regulation of expression is one of classification rather than direct suppression”); Bantam Books, 372 U.S. at 66-67 (invalidating as prior restraint scheme of “informal censorship,” notwithstanding fact that “morality” commission did not have enforcement powers and did not actually seize or ban any books); Mainstream Loudoun II, 24 F. Supp. 2d at 569 (finding filtering policy to be a prior restraint, and rejecting argument that prior restraint doctrine is “limited to situations in which a government tries to restrict all speech within its jurisdiction”).

Nor can the government shield CIPA’s prior restraints from constitutional review simply by relying on the inapt analogy to traditional collection development policies. As noted above, see supra Part I.A.3, that analogy fails for a variety of reasons. For example, unlike with standard collection development, where trained library staff make selection decisions using their knowledge of available resources and the needs of their communities, a library purchasing and installing commercial blocking software cannot even learn what Internet information actually will be blocked and what will be made available to patrons. Indeed, by requiring libraries to delegate these crucial gatekeeping decisions to third-party software companies, CIPA effectuates an even more egregious system of ongoing prior restraints. The Supreme Court rejected a similar delegation of First Amendment decisionmaking authority in Bantam Books. In that case, the Court addressed a challenge to Rhode Island’s “Commission to Encourage Morality in Youth,” whose purpose was to “educate the public” on materials “containing obscene, indecent or impure language,” and “to investigate and recommend the prosecution of all violations” of the state’s obscenity laws. Bantam Books, 372 U.S. at 59-60. Although the Commission had no formal enforcement or arrest power, it notified distributors that their books or magazines had been reviewed by the Commission and were deemed “objectionable for sale, distribution or display to youths under 18 years of age.” Id. at 61. The Supreme Court ultimately invalidated the Commission’s activities as a type of “informal censorship,” id. at 71, rejecting the claim that constitutional strictures did not apply because the Commission did not “regulate or suppress obscenity but simply exhort[ed] booksellers and advise[d] them of their legal rights.” Id. at 66. The Court explained:

This contention, premised on the Commission’s want of power to apply formal legal sanctions, is untenable. It is true that appellants’ books have not been seized or banned by the State, and that no one has been prosecuted for their possession or sale. But though the Commission is limited to informal sanctions – the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation – . . . the Commission deliberately set about to achieve the suppression of publications deemed ‘objectionable’ and succeeded in its aim.

Id. at 66-67. As with the prior restraint in Bantam Books, CIPA places the initial, unreviewable decision delineating protected from unprotected speech in the hands of non-governmental actors. In fact, CIPA extends the problem one step further, by conferring restrictive powers on private companies that refuse to disclose the results of their censorship decisions. PFF 6, 125. Even if filtering companies attempted to conform their blocking decisions to CIPA’s three categories – which they indisputably do not, see PFF 3, 114, CIPA’s blocking mandate would be constitutionally intolerable.

That courts have upheld statutes criminalizing the distribution or display of obscene or harmful to minors materials hardly justifies CIPA’s ongoing prior restraints. Unlike criminal laws, which necessarily incorporate a host of procedural guarantees to protect against unconstitutional enforcement, prior restraints present the real danger of unreviewable limitations on speech. For this reason, the Supreme Court repeatedly has held that

[t]he presumption against prior restraints is heavier – and the degree of protection broader – than that against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.

Southeastern Promotions, 420 U.S. at 558-59. See also, e.g., Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976) (“A criminal penalty . . . is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted . . . . A prior restraint, by contrast, . . . has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.”); Vance v. Universal Amusement Co., 445 U.S. 308, 316 (1980) (describing prior restraints as “more onerous and more objectionable than the threat of criminal sanctions”); Mainstream Loudoun II, 24 F. Supp. 2d at 568-69 (“[E]ven unprotected speech cannot be censored by administrative determination absent sufficient standards and adequate procedural safeguards.”).

2. CIPA’s Disabling Provisions Establish Additional Prior Restraints on Protected Expression.

Although defendants repeatedly look to the disabling provisions as a way to cure CIPA’s unconstitutional breadth, they conveniently gloss over the permissive nature of those provisions. CIPA merely allows, but does not require, library authorities to disable Internet filtering software. See 20 U.S.C. § 9134(f)(3) and 47 U.S.C. § 254(h)(6)(D) (providing that authorities “may disable the technology protection measure”) (emphasis added). Nothing prevents a library authority from denying a disabling request for any reason (or no reason at all), and there are no procedures for an appeal or review of the decision. Accordingly, the disabling provisions fall within the long-disfavored category of statutes that “vest[] unbridled discretion in a government official over whether to permit or deny expressive activity.” City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 755 (1988).

Like a standardless licensing scheme, CIPA’s disabling provisions place the library authority in the role of speech gatekeeper, whose decisions are neither constrained by any defined standards nor reviewable by a court. “The First Amendment prohibits the vesting of such unbridled discretion in a government official.” Forsyth County v. Nationalist Movement, 505 U.S. 123, 133 (1992). See also, e.g., Southeastern Promotions, 420 U.S. at 553 (“[T]he danger of censorship and of abridgment of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum’s use.”); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969) (noting “the many decisions of this Court over the last 30 years, holding that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional”).

Defendants’ arguments challenging plaintiffs’ ability to bring a facial challenge to the disabling provisions simply miss the mark. Defendants’ hope that library authorities will exercise their discretion in lawful ways is simply irrelevant to the constitutional question whether the law grants unfettered discretion to government officials over speech. As with other prior restraints, the evils of the unbridled discretion in CIPA’s disabling provisions “engender identifiable risks to free expression that can be effectively alleviated only through a facial challenge.” City of Lakewood, 486 U.S. at 757; see also id. at 755-56 (citing numerous cases sanctioning facial challenges to laws granting officials unfettered discretion to regulate speech).

In any event, the dangers of such unbridled discretion were illustrated by myriad inconsistencies in the disabling policies of the government’s library witnesses in this case. In the Tacoma Public Library, for example, library staff will not unblock access to the Playboy.com Web site for adults, even though the library offers children unlimited access to Playboy magazine on microfiche. PFF 295. Similarly, staff making disabling decisions in the Tulsa, Oklahoma library would not unblock access to a sexually explicit photograph on that Internet, even though the same photograph is available, unrestricted, in the library’s print collection. Id. Even if the evidence in this case indicated that the government library witnesses thus far have exercised their disabling authority in speech-protective ways, CIPA’s standardless disabling provisions would, on their face, be unconstitutional. That the disabling process in libraries using blocking software is rife with inconsistencies simply underscores the constitutional dangers posed by those provisions.

E. CIPA’s Disabling Provisions Are Unconstitutionally Vague.

CIPA’s disabling provisions are also unconstitutionally vague because they “fail[] to give the ordinary citizen adequate notice of what is forbidden and what is permitted.” City of Chicago v. Morales, 527 U.S. 41, 56 (1999) (plurality opinion). There simply is no way for librarians to apply in any consistent manner the determination of what constitutes “bona fide research or other lawful purposes.” The disabling provisions, moreover, impose no requirements on, but merely “allow library officials and local administrators to provide access to materials,” further increasing the likelihood of inconsistent application. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) (“[I]f arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.”) (footnotes omitted).

Recognizing the impossibility of deciphering CIPA’s disabling provisions with any precision, the government refused at trial to offer any interpretation of that language.^[17] Instead, in an effort to save the statute, the defendants eviscerated CIPA’s central requirements by declaring that libraries can offer any interpretation whatsoever for the Act’s disabling provisions, including one that sweeps within the “bona fide research” language “any time anybody wants to see hard core pornography.” 4/4/02 Tr. at 157. This reading of the disabling provisions would render the entire statute essentially meaningless. If the defendants’ present interpretation of the statute properly could be read into the Act, and if it meant that library authorities must take a patron’s one-time reasonable assurance at face value without any ability to monitor or test that assurance, then the disabling exception would swallow CIPA’s blocking requirement and make it a nullity.^[18] See, e.g., Beck v. Prupis, 529 U.S. 494, 506 (2000) (noting “longstanding canon of statutory construction that terms in a statute should not be construed so as to render any provision of that statute meaningless or superfluous.”); Williams v. Taylor, 529 U.S. 362, 404 (2000) (“It is . . . a cardinal principle of statutory construction that we must ‘give effect, if possible, to every clause and word of a statute.’”) (citations omitted). All adult patrons simply could declare their lawful intent at the outset, and the blocking software would never be turned on. If, on the other hand, library authorities were forced to make individualized determinations based on each patron’s particular disabling request, the disabling provisions effectively would create a system of unconstitutional prior restraints, as described above.

Furthermore, the defendants cannot, as a legal matter, cure the disabling provisions’ flaws simply by offering a favorable interpretation that does not appear in the Act itself. As the Supreme Court has explained, the defendants’ post hoc reading of the statute

presumes th[at] [government officials] will act in good faith and adhere to standards absent from the ordinance’s face. But this is the very presumption that the doctrine forbidding unbridled discretion disallows. . . . The doctrine requires that the limits the [government] claims are implicit in its law be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice. . . . This Court will not write nonbinding limits into a silent . . . statute.

City of Lakewood, 486 U.S. at 770. See also, e.g., Morales, 527 U.S. at 63-64 (fact that police department issued a “general order” limiting scope of loitering statute not a “sufficient limitation on the ‘vast amount of discretion’ granted to the police”); Reno, 521 U.S. at 884 n.49 (“It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government.”) (internal quotations and citation omitted).

The defendants offer another strained reading of the Act’s disabling language in an effort to avoid the fact that only one of the government’s library witnesses even arguably complies with CIPA’s requirement that blocking software be installed on all library computers, including staff computers. PFF 293. According to the defendants, leaving staff computers permanently unblocked satisfies the disabling provisions because the need to check patron disabling requests always constitutes a “bona fide research or other lawful purpose.” PFF 291, 293. Again, defendants’ new interpretation fails for several reasons. First, all but one of the testifying libraries offer unblocked access even to staff that have no involvement in the patron disabling process. PFF 293. Second and more importantly, the FCC’s binding interpretation of CIPA expressly rejects the suggestion that libraries can leave staff computers permanently unblocked, for any reason. See In re Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Report and Order, FCC 01-120, ¶ 30 (rel. Apr. 5, 2001) (“CIPA makes no distinction between computers used only by staff and those accessible to the public. We therefore may not provide for any exemption from CIPA’s requirements for computers not available to the public.”).

Defendants appear to suggest that there will be no danger of arbitrary or inconsistent enforcement of the disabling provisions, because libraries need not make disabling decisions on a “case-by-case” or “individualized” basis. Again, this interpretation is wrong for several reasons. First, as noted above, CIPA itself contains none of these limitations on the libraries’ discretion, and “we must assume that the ordinance means what it says.” Morales, 527 U.S. at 63. Second, the Act, even as newly written by the defendants in this litigation, still would be unclear as to what constitutes “bona fide research” or “other lawful purpose” sufficient to avoid case-by-case determinations. Would a one-time oral statement by a patron suffice, or must the patron make this assurance prior to each individual Internet session? Can a patron provide the “reasonable assurance” simply when she signs up for a library card? How much discretion does the library authority have to believe or disbelieve the patron’s “reasonable assurance”? Is the determination based on the patron’s purpose or the site’s lawfulness?

A. CIPA Is Facially Invalid.

Defendants’ argument that plaintiffs’ facial challenge fails because some libraries already use mandatory blocking products is wrong as a matter of fact and law. First, contrary to defendants’ suggestion, the evidence shows that the library witnesses presented by the government use blocking software in a manner that is constitutionally flawed for the same reasons that, as plaintiffs demonstrate herein, render CIPA facially invalid.^[19] Second, even if defendants had established that certain libraries conceivably could comply with CIPA without running afoul of the First Amendment, that would not defeat plaintiffs’ facial challenge to the law. It is well-settled that First Amendment overbreadth claims constitute an exception to the general rule that in challenging legislation on its face, “the challenger must establish that no set of circumstances exists under which the [law] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). Thus where, as here, plaintiffs assert that the law threatens to chill free speech – because it will censor a substantial amount of protected speech, because it is vague, and because the law creates a prior restraint – plaintiffs need not show that every library seeking to comply with CIPA will violate the First Amendment. See Morales, 527 U.S. at 79 n.2 (“As Salerno noted, the overbreadth doctrine is a specialized exception to the general rule for facial challenges, justified in light of the risk that an overbroad statute will chill free expression.”) (Scalia, J., dissenting); Reno, 521 U.S. at 893-94 (Salerno rule does not apply to facial attack on Communications Decency Act on the grounds of overbreadth) (O’Connor, J., concurring in part and dissenting in part); Artway v. Attorney General of New Jersey, 81 F.3d 1235, 1252 n.13 (3d Cir. 1996) (Salerno rule does not apply to First Amendment challenges based on overbreadth); cf. Morales, 527 U.S. at 55-56 (voiding criminal law for vagueness even though constitutional applications were possible) (plurality).^[20]

It makes no difference that the law challenged in this case involves federal funding subject to analysis under South Dakota v. Dole. The First Amendment exception to the Salerno rule is premised on the recognition that even if the government may enforce a law restricting speech in a constitutional manner in some instances, the potential that the law can be used to restrict a substantial amount of protected speech requires invalidation of the law under the First Amendment. See Morales, 527 U.S. at 79 n.2 (Scalia, J., dissenting); see also Broadrick v. Oklahoma, 413 U.S. 601, 612-13 (1973). That principle applies equally here: the remote possibility that some libraries may be able to comply with CIPA without violating the First Amendment does not change the fact that CIPA’s provisions are so facially overbroad that they will induce libraries to use blocking software that will violate the First Amendment rights of patrons and Internet speakers. The defendants’ argument that the First Amendment exception to Salerno is inapplicable to Congress’s decision to fund the type of expressive activity involved here is both untenable and unsupported by any precedent.^[21]

II. CIPA IMPOSES UNCONSTITUTIONAL CONDITIONS ON THE RECEIPT OF FEDERAL FUNDS.

In addition to unlawfully inducing public libraries to violate the constitutional rights of patrons, CIPA also violates the First Amendment by imposing unconstitutional conditions on the libraries’ receipt of federal funds. CIPA both distorts the usual functioning of public libraries and extends significant speech restrictions to privately funded Internet access. Here, as in Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001), “the program presumes that private, nongovernmental speech is necessary, and a substantial restriction is placed upon that speech.” Id. at 544.^[22]

A. CIPA Distorts the Usual Functioning of the Public Library.

The Supreme Court has made clear that the mere fact that a restriction on speech is part of a spending program does not insulate it from First Amendment scrutiny. In a series of decisions including Rust v. Sullivan, 500 U.S. 173 (1991), and most recently Velazquez, the Court has drawn a distinction between situations in which the government acts as a speaker and those in which the government “‘does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers.’” Velazquez, 531 U.S. at 542 (quoting Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 834 (1995)). “When the government disburses public funds . . . to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833 (1995). But this “latitude for government speech” does not apply “to subsidies for private speech in every instance.” Velazquez, 531 U.S. at 541. Instead, when a government program is “designed to facilitate private speech, not to promote a governmental message,” the First Amendment applies with full force. Id. In such cases, “Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise.” Id. Like the spending program restrictions invalidated under the First Amendment in cases such as Velazquez, Rosenberger, and FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984), CIPA falls squarely into this latter category.

Unlike the program upheld in Rust, this case does not involve government speech. Rust involved a challenge to the Title X family planning program, which provided that “‘[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.’” Rust, 500 U.S. at 178 (citation omitted). This had been interpreted to bar grantees from counseling patients about abortion. Id. at 198. As the Court later explained, “the counseling activities of the doctors under Title X amounted to governmental speech.” Velazquez, 531 U.S. at 541. When the Government acts as speaker, it necessarily has latitude to dictate the content of the speech. For example, “[w]hen Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles . . . , it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as communism and fascism.” Rust, 500 U.S. at 194.

By contrast, when a government program is “designed to facilitate private speech” or to “encourage a diversity of views,” the government is not free to restrict speech based on its content or viewpoint. Velazquez, 531 U.S. at 542; League of Women Voters, 468 U.S. at 383, 392, 395; see also, e.g., Brooklyn Institute of Arts & Sciences v. City of New York, 64 F. Supp. 2d 184 (E.D.N.Y. 1999). For this reason, in Velazquez the Court struck down a law that prohibited attorneys funded with federal money through the Legal Services Corporation from making specified legal arguments that the Congress disfavored. The “salient” fact that distinguished Velazquez from Rust was that the Legal Services Corporation was “designed to facilitate private speech,” not to act as a conduit for the government’s message. Velazquez, 531 U.S. at 542. Likewise, in Rosenberger, the Court invalidated the University of Virginia’s refusal to fund student newspapers espousing a religious viewpoint when it funded other newspapers, explaining that “[w]hen the University determines the content of the education it provides, it is the University speaking, and we have permitted the government to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message. . . . It does not follow, however . . . that viewpoint-based restrictions are proper when the University does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers.” 515 U.S. at 833-34 (citations omitted). And in FCC v. League of Women Voters of California, the Court invalidated a prohibition against “editorializing,” regardless of viewpoint, by publicly funded broadcasters, noting that the broadcasters “are engaged in a vital and independent form of communicative activity.” 468 U.S. at 378.

A key factor in identifying impermissible restrictions on private speech in funding programs is whether “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.” Velazquez, 531 U.S. at 543. “Where the government uses or attempts to regulate a particular medium,” courts should look at the medium’s “accepted usage in determining whether a particular restriction on speech is necessary for the program’s purposes and limitations.” Id. Thus, in FCC v. League of Women Voters of California, the Court considered “the dynamics of the broadcast industry in holding that prohibitions against editorializing by public radio networks were an impermissible restriction, even though the Government enacted the restriction to control the use of public funds.” Velazquez, 531 U.S. at 543. “The First Amendment forb[ids] the Government from using [a] forum in an unconventional way to suppress speech inherent in the nature of the medium.” Id.

Like these cases, CIPA does not involve government speech, and “[t]he private nature of the speech involved here, and the extent of [the Act’s] regulation of private expression, are indicated . . . by the circumstance that the Government seeks to use an existing medium of expression and control it . . . in ways which distorts its usual functioning.” Id. The blocking software mandated by CIPA fundamentally distorts the normal functioning of the marketplace of ideas that is the Internet. See supra Part I.A.1. In no way, therefore, can the vast majority of speech on the Internet be described as conveying a government-sponsored message. Regardless of the setting, the material available on the Internet is so diverse that there can be “no programmatic message of the kind recognized in Rust.” Velazquez, 531 U.S. at 548.

And in fact, as discussed above, supra Part I.A.2, the placement of the Internet terminals at issue here in public libraries undercuts, rather than supports, the government’s defense. CIPA would also distort the normal functioning of public libraries, whose traditional mission is to provide a broad range of information to meet patrons’ individual interests and needs, not to tell patrons what to read or think. PFF 92-107. Public libraries serve primarily as fora for private speech, not mouthpieces for government propaganda. That over 93% of public libraries have rejected mandatory blocking policies, see PFF 2, 309, confirms that CIPA’s requirements fall well outside the usual functioning of public libraries.

CIPA’s flaws also egregiously distort the usual functioning of public libraries and their ability to determine, on a local level, what information to provide to their communities. PFF 102, 107. Just as the statute struck down in Velazquez constrained attorneys in making choices central to the performance of their professional duties, CIPA unduly restricts librarians in exercising basic professional judgments about how and to what extent information and ideas will be made available to the public. PFF 102, 106. In Velazquez, the Court facially invalidated a funding condition that required recipients to make one particular professional choice, the decision not to challenge existing welfare law. Similarly, CIPA unlawfully requires e-rate and LSTA recipients to make one particular professional choice: the decision to mandate blocking software for all patrons. As the Supreme Court recently explained, “Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.” Playboy, 529 U.S. at 818.^[23]

B. CIPA’s Speech Restrictions Impermissibly Extend Beyond Federally Funded Internet Service.

In addition to the unconstitutional conditions described above, CIPA’s restrictions unlawfully cover library Internet access not even subsidized by the federal funding programs. Under the statute, a public library participating in the e-rate or LSTA funding programs must certify that blocking software operates on “any of its computers with Internet access” during “any use of such computers,” 20 U.S.C. § 9134(f)(1)(B) and 47 U.S.C. § 254(h)(6)(C) (emphasis added). Thus, the law requires libraries to block speech even on computers and Internet connections wholly paid for with non-federal money. PFF 82, 341. This is unconstitutional under League of Women Voters, in which the Court found fatal the fact that the statute did not permit public broadcasting stations “to segregate its activities according to the source of its funding” or “to establish ‘affiliate’ organizations which could then use the station’s facilities to editorialize with nonfederal funds.” 468 U.S. at 400 (emphasis added); see also Rust, 500 U.S. at 196-97.

The government has argued that nothing prevents a library or library system from having a “separate set of facilities” which would offer uncensored Internet access. In the first place, there is nothing to support the government’s reading of the statute, which plainly requires a library to certify that it has installed filters on “any of its computers with Internet access.” The government has promulgated no regulations to this effect, nor has it given any binding guidance as to how “separate” those facilities would have to be (e.g., is it enough that the computers be at a separate room in the same library, or is a separate building required?). But more generally, nothing in League of Women Voters prevented the people who worked at the public broadcasting station from building an entirely “separate set of facilities” with non-federal money; the question was whether they could “use the station’s facilities to editorialize with nonfederal funds,” so long as steps were taken to ensure that the federal money was not used to subsidize the editorializing. 468 U.S. at 400. Similarly, nothing about the law in Velazquez prevented the Legal Services lawyers from opening entirely separate private legal services centers across town from the ones that received federal money, yet that did not save the law. Moreover, the government has conceded that “it would be unusual indeed for a library to be in the position of having separately-funded connections to the Internet in the same facility as those which are federally funded.” Defs.’ Mot. to Dismiss, at 41. It is simply unrealistic to expect that a public library would have the funds to build entirely separate buildings for the purpose of providing uncensored access; indeed, if a library had that much money, it could turn down the federal money in the first place and avoid the trouble of building a new, separate facility.

III. CIPA IS UNCONSTITUTIONAL AS TO MINORS.

CIPA’s constitutional infirmities apply with almost equal force to library patrons who are minors. Minors plainly enjoy First Amendment rights to receive information. See, e.g., Pico, 457 U.S. at 867-68 (plurality opinion); Erznoznik v. City of Jacksonville, 422 U.S. 205, 213-14 (1975) (“In most circumstances, the values protected by the First Amendment are no less applicable when government seeks to control the flow of information to minors.”). Although the government can proscribe a wider range of sexually explicit material for minors, restrictions of minors’ speech must in other respects satisfy First Amendment scrutiny. Thus, outside those particular areas that have been recognized as a legitimate target of regulation with regard to minors, the government cannot impose content-based distinctions or prior restraints without satisfying strict scrutiny. See Erznoznik, 422 U.S. at 213-14 (“Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.”).

For many of the same reasons that CIPA violates the First Amendment rights of adult library patrons, its restrictions violate the speech rights of minors. Categories offered by blocking software companies for libraries to comply with CIPA cover a large amount of Internet content that would not be considered harmful to minors under any standard. PFF 3, 114. And the substantial overblocking mistakes made by blocking software apply with equal force to young library patrons. For example, the software has been found to have blocked sites such as http://sportsillustrated.cnn.com, PFF 251; http://www.thesoccersite.co.uk, PFF 254; http://www.lakewood-lancers.org/index.htm (alumni listing for Lakewood High School in Lakewood, California), PFF 259; and http://www.hemlbros.com/index.htm (page describes the book “Piano Playing and Songwriting in 3 lessons), PFF 258. Moreover, because the blocking software products fail to distinguish between a six-year-old and a sixteen-year-old in determining which Web sites are considered sexually explicit, blocking software will restrict the access of older minors to sites on such important and sensitive topics as sexual health and sexual identity.^[24] As the testimony of plaintiff Emmalyn Rood so compellingly demonstrated, public library Internet access may be a teen’s only viable source of such information – which, although possibly sexually explicit, is nonetheless fully protected by the Constitution. CIPA is therefore unconstitutional as to minors because it draws a content-based distinction that is not narrowly tailored to the government’s interest in preventing minors’ access to unprotected sexually explicit material, and because it effects a prior restraint on minors’ access to speech.

Indeed, in one important respect, the law is even more constitutionally problematic with respect to minors. Unlike adults, minors cannot invoke the disabling provisions for libraries covered by the Act’s e-rate requirements (which cover the vast majority of the funds at issue here). See 47 U.S.C. § 254(h)(5)(D) (authorities “may disable the technology protection measure concerned, during use by an adult”) (emphasis added).^[25] Thus, a teen patron doing research on sexual health issues who seeks sites that are blocked has no right to ask the librarian to disable the software. This outright ban on disabling applies even when parents give explicit permission and consent for their children to see the blocked sites. There is simply no legitimate justification for such a prohibition. In Reno, the Court’s invalidation of the CDA rested in part on the absence of an exception in the law for instances in which parents consented to their children viewing the prohibited material. 521 U.S. at 865. As the Court explained, the government’s legitimate interest in protecting minors from viewing certain materials is tied – and finally subordinate – to parents’ ultimate authority over the care and well-being of their children. See id. at 865 n.31 (“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”) (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)); see also Playboy, 529 U.S. at 811 (“[T]he government disclaims any interest in preventing children from seeing or hearing it with the consent of their parents . . . .”); Fabulous Assocs., Inc. v. Pennsylvania Pub. Util. Comm’n, 896 F.2d 780, 788 (3d Cir. 1990) (“The responsibility for making [decisions about whether to unblock home telephone access to sexually explicit speech] is where our society has traditionally placed it – on the shoulders of the parent.”). Thus where, as here, CIPA both prohibits minors from viewing constitutionally protected material and interferes with the right of parents to determine the circumstances in which their children should be permitted to view sexually explicit materials, the law is squarely at odds with the Constitution. See Reno, 521 U.S. at 865; Bolger, 463 U.S. at 74-75.

By its terms, CIPA also imposes an unconstitutional prior restraint on minors. There is no support in the case law for relaxing the prior restraint standards as they apply to children. Loosening such standards, moreover, could be justified only to facilitate parental authority over the care of children – and not, as here, to override that authority. CIPA simply cannot be justified as a legitimate regulation of minors’ First Amendment rights.

On this record, therefore, CIPA violates the constitutional rights of minors as well as adults. In the event the Court reaches a contrary conclusion, however, CIPA’s severability provisions allow the Court to invalidate the law as it applies to adults without disturbing its provisions with respect to minors. “The inquiry into whether a statute is severable is essentially an inquiry into legislative intent.” Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999) (citation omitted). Here, Congress has made its intent clear, in a “separability” clause applicable to each of the individual sections of CIPA, that invalidation of some of the law’s provisions, or its application to certain individuals, should not disturb the validity of the remaining parts.^[26] It is textually possible to invalidate CIPA’s requirements as they relate to adults while leaving the provisions applicable to computer use by minors intact. Thus, if this Court concludes that CIPA’s requirements are unconstitutional as to adults but valid as to minors, the Court could, consistent with Congress’s intent, sever the statute to reflect that holding.

CONCLUSION

For the foregoing reasons, CIPA should be declared unconstitutional and permanently enjoined.

INTRODUCTION

The defendants’ assertion that this is not “a First Amendment case” is but one in a series of desperate attempts to save CIPA from invalidation. Having rejected the First Amendment’s application to this matter, the defendants nonetheless admit that the public library is a public forum. They proceed to qualify that concession, however, with the puzzling suggestion that the library is a public forum for something other than the provision and receipt of information. Next, in continuing their struggle to find some reasonable, limiting interpretation of CIPA’s disabling provisions, the defendants merely underscore the constitutional flaws of those provisions. Moreover, in attempting to argue that CIPA does not impose an unconstitutional condition, the defendants grasp at inapposite government speech cases and illusory, purportedly pre-existing “limitations” on e-rate discounts that have never been – indeed, could never be – applied to the funds at issue in this case. In the end, the defendants’ arguments all fail at their central goal: to justify, or somehow render irrelevant, the fact that CIPA’s sweeping mandate inevitably will lead to the blocking of vast amounts of constitutionally protected information in public libraries.

B. CIPA’S CONTENT-BASED RESTRICTION ON INTERNET SPEECH IN THE LIBRARY VIOLATES THE FIRST AMENDMENT.

A. This Is a First Amendment Case.

Plaintiffs’ opening brief explains why traditional First Amendment doctrine governs plaintiffs’ challenge to CIPA. Thus, CIPA must satisfy strict scrutiny, and plaintiffs need not show that every library seeking to comply with CIPA will violate the First Amendment in order to prevail on their facial challenge. Although conceding that First Amendment claims are an exception to the general rule for facial challenges, the government blithely declares that this is not “a First Amendment case,” but rather must be analyzed under South Dakota v. Dole. See Defs.’ Post-Trial Br. at 17 n.11. But defendants cannot seriously pretend that this is not a First Amendment case; and as plaintiffs have already explained, the relevant analysis under Dole here is the First Amendment. Defendants acknowledge that South Dakota v. Dole forbids Congressional funding schemes that induce recipients to violate the constitutional rights of third parties. See 483 U.S. 203, 210 (1987). In this case, plaintiffs have shown that CIPA is facially overbroad because it requires libraries to use blocking software that necessarily will result in the impermissible suppression of a substantial amount of protected speech. See, e.g., Ashcroft v. Free Speech Coalition, 2002 WL 552476, __ S. Ct. __, at *7 (U.S. Apr. 16, 2002) (“The Constitution gives significant protection from overbroad laws that chill speech within the First Amendment’s vast and privileged sphere. Under this principle, [a law] is unconstitutional on its face if it prohibits a substantial amount of protected expression.”). The statute thus creates a significant risk that it will induce libraries to violate the First Amendment rights of its patrons. As such, CIPA cannot be sustained on its face as a valid exercise of Congress’s spending power under Dole, regardless of whether an individual library could implement CIPA’s requirements in a way that did not violate the First Amendment. Defendants’ argument to the contrary turns the overbreadth doctrine on its head.

B. Internet Speech in Public Libraries Is Fully Protected by the First Amendment.

In an attempt to shield CIPA from any serious constitutional scrutiny, the defendants mischaracterize the nature of both the Internet and the public library, arguing for an analysis that is legally and factually flawed and would render the substantial amount of overblocking in libraries essentially irrelevant.

The defendants concede, as they must, that “the physical space of the library is itself a public forum.” Defs.’ Post-Trial Br. at 21. Defendants then attempt to escape the implications of this conclusion – including, for example, the strict scrutiny applied to speech regulations in such a forum, see, e.g., Perry Educ. Ass’n v. Perry Local Educators Ass’n, 460 U.S. 37, 45-46 (1983) – by arguing that the library’s provision of information via the Internet somehow limits the speech-enhancing nature of the library forum. Defs.’ Post-Trial Br. at 18-26. This contention is meritless, for several reasons.

As an initial matter, the defendants cannot possibly define the public forum characteristics of the library in such a way as to exclude the library’s central purpose, the provision of information. If, as the defendants admit, the library is a public forum for certain designated purposes, it is difficult to conceive how those purposes could fail to include “the communication of the written word,” Kreimer v. Bureau of Police, 958 F.2d 1242, 1259 (3d Cir. 1992), and patrons’ associated “constitutionally protected interest in receiving and reading written communications.” Id. at 1262. Even if the public library is not a public forum for some purposes – for example, giving speeches or public assembly – the library remains, without question, “the quintessential locus of the receipt of information.” Sund v. City of Wichita Falls, 121 F. Supp. 2d 530, 548 (N.D. Tex. 2000) (quoting Kreimer, 958 F.2d at 1255).^[27]

Next, it would strain both logic and First Amendment jurisprudence to conclude that a public forum, such as the library, becomes less constitutionally relevant when it advances its speech-disseminating mission through the diverse medium of the Internet. Far from being “inconsistent with expressive activity,” Cornelius v. NAACP Legal Defense and Educ. Fund, 473 U.S. 788, 803 (1985), the Internet embodies the essence of expressive activity. See, e.g., Reno v. ACLU, 521 U.S. 844, 870, 872 (1997). If libraries are public fora designated for the communication and receipt of information, the Internet surely amplifies that mission by vastly expanding the amount of materials available to patrons. See, e.g., PFF 74-76; Pls.’ Joint Supplemental Findings of Fact ¶ 30.

That it may be permissible for a library “to limit its Internet service solely to websites selected by library staff,” Defs.’ Post-Trial Br. at 23, is beside the point.^[28] In fact, as with traditional public fora such as parks and streets, a library need not offer any Internet access at all. But although the library is under no constitutional obligation to provide any public Internet access, or to expand public Internet service beyond the limited offering of selected recommended sites, “as long as it does so it is bound by the same standards as apply in a traditional public forum.” Perry, 460 U.S. at 46. “Reasonable time, place and manner regulations are permissible” – such as content-neutral limitations on patron use of chat rooms, or time limits on computer use – but “a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.” Id. at 60. As plaintiffs have demonstrated, CIPA falls well short of these requirements.

In seeking constitutional latitude for CIPA’s sweeping restrictions, the defendants argue that the relevant forum in this case is “the library’s collection of materials to be made available to the public.” Defs.’ Post-Trial Br. at 20. Even accepting that definition, however, libraries historically have “made available to the public” both materials in the libraries’ physical collection – which necessarily are limited by resource and space limitations, PFF 104 – and materials and information from other sources, through, for example, bibliographic access tools and interlibrary loan programs. PFF 98.^[29] As with interlibrary loan, a library providing broad Internet access (beyond simple recommended site lists) opens a window to an enormous amount of information not otherwise available in the library’s physical collection.^[30] When doing so, the library cannot, consistent with the First Amendment, selectively close that window to one type of disfavored content.^[31]

Defendants’ theory that libraries can comply with constitutional strictures simply by defining their fora to exclude one category of speech – so-called “pornographic” materials, Defs.’ Post-Trial Br. at 1, 22 – fails for two additional reasons. First, accepting defendants’ argument would render every governmental speech restriction permissible once the state describes the relevant forum to incorporate that restriction. But as plaintiffs have already explained, as in the funding context, the government cannot recast a speech limitation as a mere forum definition, “lest the First Amendment be reduced to a simple semantic exercise.” Legal Services Corp. v. Velazquez, 531 U.S. 533, 547 (2001).^[32]

Second, even if it were legally sound, defendants’ theory – indeed, much of their defense of CIPA – rests on the faulty premise that blocking software actually blocks only a limited class of Internet speech. The government declares that instances in which these products block non-sexually explicit sites “are relatively rare.” Defs.’ Post-Trial Br. at 39. That assertion is flatly contradicted by the overwhelming evidence presented at trial, which shows that overblocking is a rampant, unsolvable problem. See Pls.’ Post-Trial Br. at 10-14. Indeed, even the government’s own experts confirmed that, if used in public libraries nationwide pursuant to CIPA’s requirements, blocking software would improperly block millions of access attempts every year. See PFF 11, 166.^[33] The undisputed evidence demonstrates that the erroneous blocks cover a wide array of non-pornographic information that is perfectly appropriate for use in any public library. PFF 213-15. Thus, even if the government could disregard basic First Amendment principles and library practice, and could redefine the relevant library forum to include everything but so-called “pornography,”^[34] CIPA’s broad mandate still would not pass constitutional muster.

C. The Government’s Own Evidence Demonstrates Why CIPA Fails Strict Scrutiny.

In light of the overwhelming evidence of blocking software’s broad censorial sweep, defendants have failed to carry their burden of showing that CIPA’s restrictions are narrowly tailored to serve a compelling governmental interest. Contrary to the government’s contention, the practices of its library witnesses do not accomplish narrow tailoring. Defendants argue that the experience of these witnesses demonstrates that libraries can sufficiently customize blocking software to ameliorate any overblocking errors. But Mr. Finnell’s study shows that even with efforts to tailor the software, these libraries still block a substantial number of innocuous sites that are protected for both adults and minors. PFF 159-163. In an effort to minimize the impact of these overblocking numbers, the government relies in large part on testimony by David Biek of the Tacoma Public Library that his library’s software correctly blocks 98% of the time. Yet the government fails to acknowledge that Mr. Biek’s self-serving assessment of the performance of his library’s blocking software is entirely unsupported by any data, and is directly contradicted by Mr. Finnell’s findings. Indeed, Mr. Finnell’s analysis of the Tacoma logs indicated an overblocking rate that was over three times higher than Mr. Biek’s estimate. PFF 160, 167.

Defendants simply have not justified such a substantial infringement on protected speech. The government asserts that CIPA’s provisions further libraries’ interest in protecting against illegal materials, but it has not shown (and cannot show) that this interest justifies such a wide-ranging suppression of fully protected speech. See Ashcroft v. Free Speech Coalition, 2002 WL 552476, at *13 (“The argument, in essence, is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down. The Government may not suppress lawful speech as the means to suppress unlawful speech.”); see also, e.g., United States v. Playboy Entm’t. Group, 529 U.S. 803, 817-18 (2000).^[35] Likewise, as plaintiffs explain in their opening brief, the government’s purported interest in protecting children from exposure to sexually explicit materials cannot justify a blanket ban on adults’ access to such constitutionally protected speech. See Ashcroft v. Free Speech Coalition, 2002 WL 552476, at *11 (“[S]peech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it.”). All of the government’s library witnesses apply the same blocking standards to adults and minors,^[36] thereby “reduc[ing] the adult population . . . to reading only what is fit for children.” Butler v. Michigan, 352 U.S. 380, 383 (1957); see also Reno v. ACLU, 521 U.S. 844, 877 (1997); Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 759 (1996); Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 128 (1989); Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74 (1983). And there simply is no legitimate government interest in preventing adult patrons from accessing sexually explicit speech that is protected by the First Amendment. Ashcroft v. Free Speech Coalition, 2002 WL 552476, at *7 (“It is also well established that speech may not be prohibited because it concerns subjects offending our sensibilities.”).^[37] Even if there were, that would not justify CIPA’s broad censorship of non-sexually explicit speech.

The government’s defense of CIPA breaks down altogether when it comes to its burden of showing the absence of less restrictive alternatives. Defendants and their library witnesses claim that the use of mandatory blocking software for all patrons is justified to protect children from exposure to harmful to minors material. But there is no evidence that any of these libraries has ever tried, much less considered, the most obvious less restrictive way of furthering this purported purpose: using blocking software only during use by young children, with provisions allowing for parental consent. Thus, while Mr. Biek claims that mandatory blocking software was needed at his library to address the problem of teenagers accessing sexually explicit material on the Internet, Tacoma never tried using blocking software only for minors. The government therefore cannot claim that CIPA’s requirement of mandatory blocking software is the only effective means for furthering its interests because it has not even explored, much less proven the ineffectiveness of, these other options.

Not only have defendants failed to show that no other less restrictive alternatives exist, they have not shown that blocking software is very effective at furthering the government’s claimed goal of preventing the display of “hard core pornography.” The government’s brief essentially ignores the evidence that blocking products consistently fail to block a large amount of the materials targeted by CIPA. See PFF 12, 264-76. Even the very limited study of government expert Chris Lemmons concluded that four commonly used blocking products failed to block 8% of 200 “hard core pornographic” sites chosen by Lemmons, with one of the most popular products, Cyber Patrol, failing to block over 17% of those sites. DPF 305, 308. That the implementation of mandatory blocking software is not effective at stopping individuals from accessing sexually explicit content on the Internet is demonstrated by the Greenville library, where complaints about such instances persisted even after Greenville installed its blocking software. See Defs’ Ex. 134. Indeed, defendants concede that the blocking software does not solve the purported problem of patrons accessing sexually explicit Web content. Defs.’ Post-Trial Br. at 29.

D. CIPA’s Disabling Provisions Compound Its Constitutional Problems.

Plaintiffs already have shown that the provisions in CIPA allowing librarians to disable blocking software for “bona fide research or other lawful purposes” compound, rather than alleviate, CIPA’s constitutional infirmities. The government’s brief confirms this. First, in an attempt to salvage the statute’s vagueness problems, the government asserts that the “bona fide research” language would permit a librarian to disable blocking software for a “pornography researcher.” Defs.’ Post-Trial Br. at 49. But the government goes on to suggest that under the same provision, a librarian would properly deny an identical request by an adult patron seeking disabling “for his own recreation.” Id. at 49 n.37. The government’s interpretation of the statutory language flies in the face of its argument that the “bona fide research” language invites no individualized determinations into the propriety of a patron’s disabling request. Under the government’s scenario, how would a librarian determine and verify whether the patron was seeking access to blocked sites for “pornography research” rather than “recreation”? Would a permission slip be required? The government’s hypotheticals make clear that the disabling provisions empower – and indeed require – librarians to make the kind of ad hoc and subjective judgments that create the danger of arbitrary and inconsistent applications of the law. As a result, the disabling provisions are hopelessly and unconstitutionally vague. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).

Second, the defendants’ contention that the disabling provisions will have no chilling effect on library patrons’ speech once again rests upon a distortion of the nature of plaintiffs’ claims. See Defs.’ Post-Trial Br. at 46. Contrary to defendants’ assertion, the right at issue is not an absolute right to receive speech anonymously, but the right of library patrons not to have to petition the government for access to disfavored speech to which they are lawfully entitled. See Denver Area, 518 U.S. at 754; Lamont v. Postmaster General, 381 U.S. 301, 307 (1965); Sund v. City of Wichita Falls, 121 F. Supp. 2d 530, 551 n.23 (N.D. Tex. 2000); Mainstream Loudoun v. Board of Trustees of the Loudoun County Library (“Mainstream Loudoun I”), 2 F. Supp. 2d 783, 797 (E.D. Va. 1998).^[38] The experience of the government’s testifying witnesses shows that librarians may look with disfavor upon certain types of speech in making disabling decisions, even if that speech is fully protected by the Constitution (and indeed, even if the Web content is indistinguishable from material in the library’s non-digital collection). Thus Mr. Biek testified that he would not disable Playboy.com for a 45-year-old physician, even though his library offers unrestricted access to Playboy, even for children, elsewhere in the library collection. See Biek 3/28/02 at 135; PFF 295. The deterrent effect of wholly discretionary disabling is evident in the strikingly low number of unblocking requests received by these libraries. See PFF 280-83.

Third, defendants concede that the distinction between the e-rate disabling provisions (which do not allow disabling for minors under any circumstances) and the LSTA disabling provisions (which allow disabling for adults and minors) is wholly irrational. Defs.’ Post-Trial Br. at 48. Plaintiffs’ opening brief demonstrates that the e-rate provisions’ total ban on disabling for minors – even with parental consent – imposes an impermissible prior restraint on minors and unjustifiably burdens their First Amendment rights and the rights of their parents. Defendants do not even attempt to defend this restriction; to the contrary, they admit that there is no rational basis for it. Accordingly, the e-rate provisions’ ban on disabling for minors plainly cannot be sustained as a valid restriction of minors’ speech.

II. CIPA’S UNCONSTITUTIONAL CONDITIONS ARE FATAL TO THE ACT.

Defendants raise a number of arguments to justify the egregiously unconstitutional conditions imposed by CIPA, none of which saves the statute. As an initial matter, defendants focus on the open question whether libraries, as public entities, have independent First Amendment rights. Defs.’ Post-Trial Br. at 53-57. But this determination is unnecessary to the Court’s resolution of plaintiffs’ claims. Libraries plainly have standing to assert their patrons’ rights, see Pls.’ Post-Trial Br. at 38 n.20. In addition, public libraries are best positioned to challenge the use of the federal government’s spending power to conscript them into a massive distortion of private communication in an area specifically designed to “encourage a diversity of views.” Velazquez, 531 U.S. at 542; Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 834 (1995).^[39]

The tenuousness of the defendants’ position is highlighted by their desperate reliance on a supposed “educational purposes” limitation in the e-rate program.^[40] Defs.’ Post-Trial Br. at 62 (arguing that “educational purposes” limitation “fundamentally distinguishes this case from Velazquez”). It goes without saying that public libraries provide information not only for educational purposes, but also for recreational, professional, and other purposes, PFF 95; the defendants did not even attempt to refute this fundamental point at trial, because they could not. Of course, Internet service in public libraries – including that funded in whole or part by e-rate discounts – necessarily includes the daily, continuous provision of non-educational online materials.

There is no indication, moreover, that e-rate funding has ever been limited to educational purposes. As the defendants concede, the FCC has never denied any library e-rate discounts because the Internet access provided by the library failed to meet the “educational purposes” requirement of the universal service statute. PFF 469.^[41] Having ignored this provision throughout the history of the e-rate program, the government cannot now invoke some dormant “limitation” to suit its present censorial purposes.^[42] Cf. Barnhart v. Walton, 122 S. Ct. 1265, 1270 (2002) (when construing statute, Court places great weight on agency’s historical interpretation (citing North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 522, n. 12 (1982))).

Furthermore, contrary to the defendants’ suggestion that unconstitutional conditions attach only where a condition amounts to viewpoint discrimination, Defs’. Br. at 60-61, content-based funding conditions undoubtedly are constitutionally suspect. The invalidated regulation in FCC v. League of Women Voters, 468 U.S. 364 (1984), for example, was merely content-based, restricting all “editorializing” by recipients, regardless of viewpoint. See id. at 383 (“[T]he scope of § 399's ban is defined solely on the basis of the content of the suppressed speech.”); id. at 384 (“[T]he First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.” (quoting Consolidated Edison Co. v. Public Service Comm’n of NY, 447 U.S. 530, 537 (1980))).

Defendants, moreover, offer little justification for the unduly broad reach of CIPA’s conditions, which extend to privately funded Internet service in libraries. See Pls.’ Post-Trial Br. at 44-46. As in League of Women Voters, CIPA impermissibly requires a library receiving e-rate discounts or LSTA grants to block all Internet access, even if the recipient “receives only 1% of its overall income from [federal] grants.” 468 U.S. at 400.

Defendants’ heavy reliance on government speech cases such as Rust v. Sullivan, 500 U.S. 173 (1991), and Regan v. Taxation With Representation, 461 U.S. 540 (1983), is wholly unavailing. As the Supreme Court repeatedly has made clear, where, as in Rust and Regan, the funds at issue merely advance government speech, rather than facilitating a broad range of private speech, the analysis is “altogether different.” Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217, 235 (2000) (distinguishing Rust and Regan). See also, e.g., Velazquez, 531 U.S. at 541 (Rust concerned program that “amounted to governmental speech”); Rosenberger, 515 U.S. at 833 (government in Rust “used private speakers to transmit specific information pertaining to its own program”). The public library, on the other hand, is “designed for freewheeling inquiry,”^[43] Board of Educ. v. Pico, 457 U.S. 853, 915 (1982) (Rehnquist, J., dissenting), and therefore may not be profoundly distorted through funding conditions like those in CIPA. Velazquez, 531 U.S. at 541; Rosenberger, 515 U.S. at 833-34; League of Women Voters, 468 U.S. at 378, 383, 392, 395.

III. THE INDIVIDUAL PLAINTIFFS’ CLAIMS ARE RIPE.

Contrary to defendants’ repeated assertions, the claims of the individual plaintiffs in this case are ripe for review. The evidence shows that the individual patron plaintiffs regularly use the library for information to which they will be wrongly denied access if CIPA is upheld, given the record on blocking software. See PFF 343-351; 389-400; 422-438. Likewise, it is undisputed that all of the Web sites of the individual plaintiffs have been blocked by at least one popular blocking product, and these plaintiffs have a realistic fear that they will continue to be blocked. PFF 210, 352-56; 439-59. In any event, defendants’ ripeness argument is nothing more than a variation on their refusal to recognize that the plaintiffs in this case assert First Amendment facial challenges to CIPA. Where, as here, a law threatens to suppress a substantial amount of protected speech, plaintiffs may bring a pre-enforcement challenge, even if they have not suffered – or would not suffer – constitutional injury under those laws. See Virginia v. American Booksellers Ass’n, 484 U.S. 383, 393 (1988); Forsyth County v. Nationalist Movement, 505 U.S. 123, 129 (1992); City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 755-56 (1988); Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798-99 (1984); see also Presbytery of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1463-64 (3d Cir. 1994) (facial challenge to statute on First Amendment grounds was ripe); Planned Parenthood v. Farmer, 220 F.3d 127, 148 (3d Cir. 2000) (“Federal court review is not foreclosed merely because there is a pre-enforcement challenge to a state statute.”).

Moreover, the concerns underlying the ripeness doctrine simply are not present here. Defendants do not dispute that the facial claims of the other plaintiffs are ripe in this case, and that the Court may adjudicate those claims, based on the extensive record developed at trial.^[44] Thus, the “basic rationale of the ripeness requirement” – “‘to prevent the courts, through the avoidance of premature adjudication, from entangling themselves in abstract disagreements,’” Artway v. Attorney General of State of New Jersey, 81 F.3d 1235, 1246-47 (3d Cir. 1996) (quoting Abbott Labs v. Gardner, 387 U.S. 136, 148 (1967)) – is not implicated. Because this Court will resolve the common claims of all plaintiffs, and because the record establishes the particular claims of the individual plaintiffs with sufficient concreteness, defendants’ ripeness arguments must be rejected.

CONCLUSION

For the foregoing reasons, CIPA should be declared unconstitutional and permanently enjoined.

Respectfully Submitted,

COUNSEL FOR ALL ALA PLAINTIFFS: COUNSEL FOR ALL MULTNOMAH

PLAINTIFFS:

_______________________________ ____________________________________

Paul M. Smith Ann Beeson

Theresa A. Chmara Christopher A. Hansen

Daniel Mach Kevin Bankston

Katherine A. Fallow American Civil Liberties Union Foundation

JENNER & BLOCK, LLC 125 Broad Street

601 13^th Street, N.W. New York, New York 10004

Washington, D.C. 20005 (212) 549-2500

Phone: (202) 639-6000

Fax: (202) 639-6066 Stefan Presser

Attorney ID No. 43067

Robert A. Nicholas ACLU of Pennsylvania

Wayne C. Stansfield 125 South Ninth Street, Suite 701

REED SMITH, LLP Philadelphia, PA 19107

2500 One Liberty Place (212) 592-1513 ext. 216

Philadelphia, PA 19103-7301

Phone: (215) 851-8100 Charles S. Sims

Fax: (215) 851-1420 Stefanie S. Kraus

Andrew L. Lee

COUNSEL FOR PLAINTIFFS Frank Scibilia

ACORN, FPCIL, PAD, Proskauer Rose LLP

ELIZABETH HRENDA, and 1585 Broadway

C. DONALD WEINBERG New York, New York 10036-8299

Elliot M. Mincberg (212) 969-3000

Lawrence S. Ottinger

PEOPLE FOR THE AMERICAN WAY David L. Sobel

FOUNDATION Electronic Privacy Information Center

2000 M Street, N.W., Suite 400 1718 Connecticut Avenue, N.W., Suite 200

Washington, D.C. 20036 Washington, D.C. 20009

Phone: (202) 467-4999 (202) 483-1140

Fax: (202) 293-2672

Lee Tien

Electronic Frontier Foundation

454 Shotwell Street

San Francisco, CA 94110

(415) 436-9333

FOR PLAINTIFF MULTNOMAH

COUNTY PUBLIC LIBRARY:

Thomas Sponsler, County Attorney

Multnomah County

501 NE Hawthorne Blvd., Suite 500

Portland, Oregon 97214

(503) 988-3138

April 18, 2002

Appendix B

The Internet Filter Farce

What if the baseball could repair the window?" reads the headline of a recent ad for myCIO.com. The copy continues: "The Internet caused the problem. It's only fitting it should also provide the solution." As it happens, the advertiser is offering remote management of network security. But the slogan would serve just as well for dozens of other electronic products and services that promise to address the manifold anxieties that the Internet gives rise to--anxieties about hackers, threats to privacy, spam, rumors, commercialism, pornography, fraud, lost work time, or simply the difficulty of finding your way around cyberspace. For every article raising the alarm about one or another of these problems, there's a clutch of software engineers sitting in a loft somewhere trying to turn the concern into a market opportunity.

It's an understandable response, given the remarkable achievements of the technology and the hype that

accompanies every new innovation. But it can also lead to misguided or even irresponsible decisions, as people naively trust the technology to right its own wrongs. It's one of the more dangerous guiding principles of the new economy: The remedy for the abuse of digital technology is more digital technology.

The problem is nowhere more evident than in the frenzy to equip homes, schools, libraries, and workplaces with blocking technology--the programs described as "content filtering software" by their makers and as "censorware" by their critics. They go by suggestive names like CYBERsitter, SafeClick, Cyber Patrol, NetNanny, SurfWatch, and I-Gear. It's a good business to be in right now. A recent report by the research firm IDC estimates that the content filtering market exceeds $150 million a year right now and will reach $1.3 billion by 2003. Parents have been buying the software to protect their children, and search engines and Internet service providers (ISPs) have been offering blocking as a subscriber option. Corporations have been using the software to block employees' access to pornography (often citing the threat of sexual harassment charges) or, more generally, to restrict access to any non-work-related Web sites. Schools and libraries have been installing the software, sometimes reluctantly, in response to state and local laws that require its use, and federal legislation mandating filters is in the offing.

One reason for the enthusiasm about filters is that they can be seen as a benign alternative to legislative restrictions on speech or access. Such laws generally prove to be unconstitutional--like the Communications Decency Act, which was overturned in 1997. [See Marjorie Heins, "Screening Out Sex: Kids, Computers, and the New Censors," TAP, July-August 1998.] In fact, when the Third Circuit Court suspended enforcement of the 1998 Child Online Protection Act in February 1999, it cited filters as a less restrictive alternative. Advocates of filters argue that since the software is a commercial product that people adopt voluntarily, questions of censorship can't arise. As the director of one service provider that uses the software put it, "The First Amendment is not concerned with the capricious acts of individuals but rather with ... the danger posed by the enormous power wielded by the federal government."

Even so, filters have their critics, particularly among civil libertarians and librarians. They argue that requiring filters in schools or libraries can itself be a form of censorship, even if the lists of sites they block are compiled by private companies--a view that was supported in 1998 by a federal district court in Virginia. Filtering advocates have responded that First Amendment concerns don't override the custodial responsibilities of the school or library. In the words of South Carolina Attorney General Charlie Condon, "A public library can constitutionally filter filth from the eyes of children." But "filth" is in the eye of the beholder, and all filters go well beyond blocking hard-core porn, both inadvertently and by design.

Of course, First Amendment considerations aren't relevant when individuals or private organizations use filters. But there are other reasons why filters might make us uneasy. In corporate settings, the use of filters is part of a growing tendency to restrict employee privacy, along with e-mail monitoring and other forms of electronic surveillance. These steps may be legal if workers are appropriately notified in advance, but they're a poor substitute for more direct evaluations of employees' productivity. And they can intensify workers' disaffection and alienation, an effect that's exacerbated by the heavy-handed condescension with which employers often try to sweeten the pill. Take the Dilbertesque explanation that one Fortune 500 company offered its employees when it began filtering their Web use a while ago: "Imagine yourself surfing the Web and you come across a link that says, 'Click here for cool stuff.' You

click on the link and are suddenly presented with a site that has less than suitable pictures for a business

environment. If this has ever happened to you, we have good news... ."

Parental restrictions on children's access to information are clearly in a different category. As Al Gore frequently puts it, "Blocking your own child's access to offensive speech is not censorship--it's parenting." The problem is that parents who buy a commercial filtering program have no way of knowing exactly what speech it blocks, and the software companies are doing all they can to keep their customers in ignorance. The lists of sites blocked by most of the filters are kept encrypted, as are the keyword algorithms they use to block additional sites. And when free-speech advocates have hacked the filters and posted lists of the sites they block, the companies have gotten the courts to suppress the postings on the grounds that they violate provisions of the Digital Millennium Copyright Act. (Those provisions were relaxed last October to allow some circumvention of encryption mechanisms for purposes of finding

out what sites filters are blocking.) All of this has put the censorware companies in a position that would delight any other business: Not only does government mandate the use of their products, it also enforces their right to conceal from the public what exactly those products do.

The software companies justify their secrecy by citing the need to protect their intellectual property and by arguing that publication of the lists of blocked sites would enable children to bypass the filters and access inappropriate materials. But neither argument is very plausible. Other companies manage to protect their rights to the databases they compile without keeping them secret, and it would be easy enough to make the lists publicly available without making them accessible to every schoolchild. The real danger for the software companies in making the lists public is that people would rapidly see just how inadequate their software is. That's the real scandal of the filtering controversy: The technology doesn't--and can't--work as promised.

Why Filters Fail

Filters come in different forms. Some are implemented "upstream," at the level of proxy servers that control access for whole schools, libraries, or businesses; others are implemented "downstream" at individual workstations or PCs. But they all accomplish their filtering in pretty much the same way. The software companies start by compiling "control lists" of the addresses of unacceptable sites. Then, since these lists inevitably miss large numbers of offensive sites, they add automatic keyword filters to block additional sites that contain certain words and phrases. Most of them permit customers to specify the categories of sites they want to block--for example, "sex acts," "perversions," "hate speech," and "drug advocacy," not to mention additional categories like "job search," "games," and "dating," for the benefit of employers. (SmartFilter even adds a category of "worthless sites" that includes things like pages full

of cat stories.) And most keep logs of use and make provision for automatic notification of parents or supervisors or system administrators when someone tries to access an excluded site.

The inadequacies of the systems are implicit in this basic architecture. In compiling their control lists, software makers have a natural interest in drawing the circle very broadly, so as to block sites that might be objectionable to one or another segment of their market, even if they wouldn't be considered pornographic or offensive by any reasonable standard. Take safe-sex information. SurfWatch has blocked safe-sex information pages at Washington University, the University of Illinois Health Center, and the Allegheny University Hospitals, and Cyber Patrol has blocked the HIV/AIDS information page of the Journal of the American Medical Association and the site of Planned Parenthood. SmartFilter blocks the safe-sex page of the Johns Hopkins Medical School research group on sexually transmitted

diseases. The filters have also blocked numerous sites associated with feminism or gay and lesbian rights. Both I-Gear and CYBERsitter have blocked the site of the National Organization for Women (CYBERsitter cites the "lesbian bias" of the group). I-Gear has blocked the Harvard Gay and Lesbian Caucus, BESS has blocked the Gay and Lesbian Prisoner Project, and NetNanny has blocked Internet discussion groups on AIDS and feminism.

There's more: Many filters block Web privacy sites and sites that facilitate anonymous Web access. And filter makers routinely use their control lists to block sites critical of their products. SafeSurf has blocked the site of the Wisconsin chapter of the American Civil Liberties Union. I-Gear has blocked the site of the Electronic Privacy Information Center, and SafeClick has blocked some of the testimony at hearings on filters held by the congressionally appointed Commission on Online Child Protection. That must be the dream of every corporate publicist--to be able to prevent your customers from reading any negative comments about your products.

When we pass from control lists to keyword filters, we go from the outrageous to the ridiculous. Sites have been blocked simply because they contain the words witch, pussycat, or button. A government physics archive was blocked because its URL (uniform resource locator, or Web site address) began with the letters XXX. Keyword filters have blocked the sites of Congressman Dick Armey and Beaver College in Pennsylvania. What these anecdotes don't show, though, is just how extensive the overblocking of keywords is. The censorware companies like to claim that their accuracy is extremely high, citing library studies showing that inappropriate blocks constitute a tiny proportion of all Web accesses. For example, Secure Computing, the manufacturer of SmartFilter, claims that a Utah study showed that blocking of miscategorized pages by its program constituted only .0006 percent of all Web access attempts--a figure cited by Arizona Senator John McCain in support of a mandatory-filtering proposal he is sponsoring. But that's a highly misleading way of measuring overblocking: Even if a filter blocked every single site on

the Web that mentioned safe sex or breast cancer, the total number of incorrectly blocked accesses would be tiny relative to the huge number of accesses to sites like Amazon.com and Yahoo! By analogy, imagine a police force that arrests every Arab American in town on an antiterrorism sweep, then claims that its false arrest rate is under 1 percent, since 99 percent of the total population was not detained.

The only appropriate way to evaluate the filters is to ask what proportion of the sites they block as pornographic or offensive are in fact correctly categorized. And by this standard, the filters fare very poorly. In one recent study, 1,000 randomly chosen addresses in the dot-com domain were submitted to the SurfWatch filter. Of the sites it blocked as "sexually explicit," more than four out of five were misclassified--for example, the sites of an antiques dealer in Wales, a Maryland limo service, and a storage company in California. In another recent study, the free-speech advocate who runs Peacefire.org hacked the Symantec Corporation's I-Gear filter and published the list of the first 50 blocked URLs in the dot-edu domain. Fully 76 percent of these pages were errors or misclassifications, most of them completely devoid of sexual content of any kind. The program blocked a diagram of a milk

pasteurization system with accompanying text entirely in Portuguese and two long sections of Edward Gibbon's Decline and Fall of the Roman Empire. It also blocked a tract by the seventeenth-century theologian John Owen entitled "Justification of Faith through the Righteousness of Christ" and a page that contained nothing but a passage in Latin from Saint Augustine's Confessions. (Intriguingly, it is a passage in which the bishop chastises himself for his impure thoughts--but the filter was doubtless triggered simply by the presence of the Latin preposition cum.)

This overblocking is an inevitable consequence of the keyword approach. The fact is, it's impossible to single out porn sites reliably simply by the words they use. Go to Disney's Go.com, turn on the GoGuardian filter, and do a search on sex; you will get no hits at all. Then turn it off and discover what you were missing: not just porn pages, but the text of the Scientific American article "Bonobo Sex and Society," the pages on sex discrimination of the Australian Equal Opportunity Commission, and the Michigan Sex Offender Registry. It's true that filters can fare a bit better by looking for combinations of keywords and by doing some statistical analysis of content. But few of them appear to use sophisticated techniques, probably because any effort to reduce the number of false alarms will inevitably reduce the

number of genuine porn or hate sites that they block as well.

Filtering advocates have argued that blocked Web pages on Saint Augustine or Gibbon are simply regrettable collateral casualties in the war against online porn and racism: Better, after all, to block some inoffensive sites than to allow some offensive ones to get through. As a field director of the profilter American Family Association puts it: "Filters are workable. We'd rather err on the side of caution instead of being too liberal." And there's no question that the software companies have deliberately kept their filters overly broad. It isn't just that they use overinclusive keywords like sex to screen out pages; they have also blocked whole servers or even whole ISPs when any one of their pages is flagged for objectionable content. Cyber Patrol blocked the entire Deja News (now Deja.com) site, which archives thousands of discussion groups on everything from commercial mortgages to archaeology, and all of

the 1.4 million pages on the Web-hosting service Tripod.com. And a number of filters block pages containing banner ads that appear to contain links to inappropriate sites. The software makers reason, probably correctly, that their average customer is more likely to be concerned about porn sites that slip through the screen than about the blocking of useful sites--particularly since customers are usually ignorant about how frequently the latter occurs.

Yet even with the most overly restrictive filtering mechanisms, the programs don't do an adequate job of blocking porn and other offensive materials. You wouldn't know this from the claims of the software makers. CYBERsitter guarantees that its software blocks "more than 97 percent of all objectionable content" (though it doesn't define "unobjectionable"), and SurfWatch claims that it can "shield users from 90-95% of the explicit material on the 'net." But neither company says how it came up with these figures, and independent tests suggest that they are wildly exaggerated. A few years ago Consumer Reports tested the four most common filtering programs against a list of sites that its investigators judged clearly unsuitable for young children. SurfWatch blocked 82 percent of the sites, the highest score of the group, and CYBERsitter blocked only 63 percent (both programs performed much better than NetNanny, which blocked none at all). Another study showed that the filter BESS failed to screen out more than

275 of the sites identified as pornographic on Yahoo!--a singularly easy group to block, since they've already been located and labeled.

A study at the Annenberg School of Communications suggests that filters are even worse at identifying violent content than they are at catching pornography. That result is not surprising. Porn sites often give themselves away with genre-specific keywords like XXX or cum, and this makes for relatively efficient filtering. But the only way to block a large number of violent sites would be to use very general keywords that inevitably lead to the overblocking of thousands of useful or informative sites in the process. Do a Web search on "torture+domination," for example, and you will find a number of disturbingly lurid sites; but you will also find a report from the Canadian Centre for Victims of Torture, the summary of a human rights conference at the University of Chicago, and several pages documenting the horrors of the Holocaust.

What's more, these studies almost certainly underestimate just how leaky the filters are; and the proportion of offensive content that the filters miss will inevitably grow as the Web swells. For one thing, the filters simply can't keep up with the size of the Web and the vast amount of objectionable material it contains. In a 1999 article in Nature, Steve Lawrence and C. Lee Giles found that 1.5 percent of indexable Web servers contained pornographic material, a proportion that would translate to around 80,000 servers at the present size of the Web. Since a single server can host a number of sites, a highly conservative estimate would be 150,000 to 200,000 sites that contain pornographic material. These sites wink on and off and change addresses frequently: The archiving service Alexa.com estimates that the average Web site has a life of 75 days. To locate and flag all this content, a filtering service would have to do periodic sweeps of the entire publicly accessible Web, which as of late 2000 contained in the neighborhood of 1.5

billion pages. That's more than anyone could possibly track: Even with the extensive resources that search engines like AltaVista and Inktomi have at their disposal, none of them indexes more than 15 percent of the total, and all of them taken together index less than half of it. And even if you could find all the Web pages, a filtering company would require a full-time staff of more than 2,000 people just to check out the two million new pages that are added every day.

Figures like these make a mockery of the filter makers' claims that their control lists can offer anything like comprehensive coverage of the Web. The only possible way to get at most of the objectionable content is through keyword filtering. But however broadly it's applied, that technique misses the large number of porn sites that don't contain explicit terms that will tip off the filter. And sites that do want to include sexually explicit text can choose among a number of simple ways to circumvent the screens. They can represent the text as an image rather than as a string of characters, for example--a technique that's used by many people who don't want their Web page content to be picked up by the "spiders" that crawl the Web compiling the indexes of the search engines. Or they can encode the text in a Java script so it will bypass the filters unnoticed--and do so in such a way that will still allow people to seek them out. At this point, it isn't clear how much the porn site proprietors have been using expedients like these. But if the use of filters becomes widespread enough to cut significantly into the pornographers' profits, there is no question that sexual-content providers will become as resourceful at foiling the software as they have

already been in gaming the Web search engines so that their sites come up in the first batch of hits.

Alternatives to keyword identification are even less effective. In 1999 Exotrope, a company in Elmira, New York, introduced a system called BAIR (for Basic Artificial Intelligence Routine), which it billed as capable of recognizing pornographic images with 99 percent accuracy, thanks to its use of artificial intelligence and "active information matrices." The launch was held at a Schenectady middle school and was attended by New York Governor George Pataki, who hailed the company as one of the fruits of his administration's efforts to create new high-tech industry in the Empire State and applauded the product's usefulness: "You'll be able to have a computer in any classroom unsupervised, a computer at home where your nine-year-old or 10-year-old disappears hours on end, and we can know and be confident that the information they are accessing is appropriate for someone of their age level." But parents who install the BAIR system would be well advised to check in on their kids from time to time. When the software was independently tested, it correctly labeled only two-thirds of a set of pornographic images--and

mislabeled as pornographic exactly the same proportion of a set of ordinary portrait photos downloaded from AOL personal ads. In the end, BAIR is just a system that can identify flesh tones with less than 70 percent accuracy--about par for the present state of image recognition, and miles short of a system that could reliably tell the difference between stills from Deep Throat and from My Dinner with André.

In a way, though, all of this is beside the point. Even if the filters were capable of achieving the fanciful levels of accuracy their advocates like to claim, it isn't as if there would be anything like a corresponding reduction in the diffusion of pornography. If for argument's sake we estimate that there are 150,000 porn sites on the Web, a filter that could screen them out with an accuracy rate of 95 percent would still leave 7,500 available, which is more than enough to satisfy the most assiduous pornophile. Bear in mind that an Internet porn site isn't like a handgun or a gram of cocaine--or, for that matter, like a brick-and-mortar pornographic bookstore--since a single site can serve an indefinitely large number of users from wherever they log in.

All of this has a familiar ring to linguists who have been working for years to develop tools that can deal with human language in a naturalistic way. Every few years, a new flurry of hype touts a system that has "cracked" this or that aspect of the problem--automatic translation, for example, or realistic question-answering. But when they're put to the test, the systems never come remotely close to human language capabilities; that goal is not likely to be achieved for decades. It is much easier to reproduce the competence of a chess grandmaster than to reproduce the behavior of the kibitzers around the table.

Filtering software is basically just another system of the same type--except that the techniques it uses are much more primitive than those used by modern translation systems and the like. And the task of filters is far more demanding. While translating a simple sentence or understanding a straight-forward question are tasks that are well within the linguistic capacities of a 10-year-old, distinguishing pornography and hate sites from serious discussions of sex or race requires not just adult linguistic competence but adult judgment. It may be that we know obscene material when we see it, as Justice Potter Stewart said, but it is a daunting matter to teach a machine to make such discriminations--or even the much more blatant distinctions that 10-year-olds delight in grasping.

Language analysis software can be useful, so long as we make allowances for its shortcomings. Automatic translation systems do a wretched job by human standards. But sometimes even a very bad translation can be useful--if you're simply trying to determine whether a hotel in Paris accepts Visa cards, for example, or whether a scientific paper in Japanese is relevant enough to merit a proper human translation. Software that analyzes language content is fine for making a first pass at sorting incoming corporate e-mail, so long as employees are on hand to clear up its errors. And we can tolerate a fairly low accuracy rate from a natural-language query system like Ask Jeeves; the misunderstood questions and irrelevant responses may be a bother, but they don't do any real damage.

When it comes to protecting children from offensive content, however, our tolerance for error is much lower. Politicians and administrators may find it convenient to believe in the efficacy of filters so they can reassure parents that the technology allows us to leave children alone in front of computers and, as Governor Pataki put it, "be confident that the information they are accessing is appropriate for someone of their age level." In the current climate, it's important to be seen as doing something about the problem of offensive content on the Web. But trusting filters to protect schoolchildren from objectionable content is simply irresponsible: It's like entrusting airport security to a metal detector that misses 40 percent of the concealed handguns and beeps at a third of the metal hangers in passengers' suitcases.

A Place for Filters?

Filter usage will get a big boost if Congress adopts Senator McCain's proposed legislation making filters obligatory in institutions that receive the "e-rate" subsidies established by the Telecommunications Act of 1996--just one of several proposals along these lines. It's clearly an issue with wide appeal: In a 2000 survey sponsored by the Ford Foundation, 92 percent of respondents favored having schools use filters to block pornography, and 79 percent favored their use to block hate speech.

People are right to be troubled by the vast amount of offensive and harmful content on the Web. But there's reason to be troubled, too, by most of the approaches proposed thus far to deal with it, whether technological, legal, or political. Legislative restrictions on the distribution of obscene or indecent content have generally proved to be unconstitutional and, in any case, are extremely difficult to enforce. The Web is not a place that lends itself to police sweeps: Sites change their addresses frequently, and the people responsible for them are hard to find and identify. Then, too, a large proportion of offensive and pornographic sites are located at servers outside U.S. jurisdictions; setting up a Web site in Thailand is even easier than opening a bank account in the Bahamas. So it's unrealistic to expect too much from efforts at supply-side controls.

The other solutions that have been proposed also have their limitations. Self-rating policies for Web sites raise issues of practicality and enforcement [see Joshua Micah Marshall, "Will Free Speech Get Tangled in the Net?" TAP, JanuaryFebruary 1998]. "Whitelist" or "greenspace" domains restricted to prescreened age-appropriate material may be useful for younger children, but they inevitably exclude huge amounts of valuable information.

There are limits, too, to what we can expect from adult supervisors. "Tap on the shoulder" policies put librarians in the dubious position of having to police their patrons' Web use. What's more, monitoring policies are likely to inhibit young people from using the Web to find answers to their questions about topics like safe sex, suicide, homosexuality, or other areas of concern that they might have reasons for concealing from parents, teachers, or librarians.

Filters raise even more problems than most of these other solutions do, but in the current political climate, it isn't likely that they will go away. Still, before we allow anyone to install filters in public institutions, we can ask that the programs be improved and made more selective, and that their makers be held accountable to reasonable standards of public disclosure. For starters, the filter companies should be required to list publicly the names of all identifiable organizations, publications, and sites included on their control lists, along with a brief description of the offending content. This is simply a matter of truth in advertising: If a filter is blocking a large number of gay and lesbian sites or safe-sex sites, people have a right to know this in advance. Indeed, it's hard to see how the use of filters in libraries could be constitutionally defended if the librarians have no way of knowing what point-of-view biases they might

incorporate.

Appendix C

Testimony of Candace Morgan

Associate Director

Fort Vancouver Regional Library

S. 97, The Children’s Internet Protection Act

Before the Senate Committee of

Commerce, Science and Transportation

March 4, 1999

I want to thank you for the opportunity to participate in this important hearing today. My name is Candace Morgan. I am the Associate Director of the Fort Vancouver Regional Library, which serves 350,000 residents of Clark, Skamania & Klickitat Counties and the City of Woodland in Cowlitz County in Southwestern Washington State. I have been a librarian for over 30 years, the last 15 years at Fort Vancouver Regional Library. Previously, I have worked in the Illinois and Oregon State Libraries, a special library in Chicago, an academic library in Michigan, and a public library in California.

I am here today representing the Fort Vancouver Regional Library to comment on S. 97, the “Children’s Internet Protection Act” sponsored by Senator John McCain (R-AZ) and Senator Ernest Hollings (D-SC). This legislation would require the installation and use by schools and libraries of technology that filters or blocks Internet access on computers as a condition of eligibility for universal service assistance.

The concerns underlying this legislation are important and I commend the Chairman for raising public awareness about children’s Internet safety. I share the sponsors’ concerns that children’s experience on the Internet be safe, educational and rewarding. As new technologies proliferate, it is critical that we balance the extraordinary value they bring to communications and learning with responsible use and careful guidance. I also appreciate that the legislation has been modified slightly since last Congress to meet the concerns of libraries with only one public access terminal. Nevertheless, as a practicing librarian in a community that has just developed a policy for addressing children’s Internet use, I remain concerned about the impact that a federal blocking mandate will have on local control and community decision-making.

As the Associate Director of the Fort Vancouver Regional Library I have had direct experience with the development and adoption of a policy for library patron access to the Internet. In my experience, the role of the community in helping to inform and shape a solution is critical. My concern with the proposed legislation is, that while it permits some discretion to local officials to determine what material is "deemed to be harmful to minors” and what software to use to block that content, it denies local communities the opportunity to determine what approach will best serve children in these communities in dealing with challenging content. It is not just that one solution doesn’t fit all communities. It is also that a federal mandate on a matter so closely tied to local norms and values is, in my view, counterproductive and even harmful. The legislation may not only discourage communities from doing the hard work to reach their own solutions; it also lacks the legitimacy necessary to foster broad community support.

While no one approach to Internet safety will satisfy everyone in the community, I believe it is possible to work with the community to fashion a “bottom up” approach that respects community values, addresses core concerns and provides useful solutions. Not surprisingly, local decision-making processes vary significantly and the solutions are extremely diverse. But what they have in common is involvement of community, understanding of local norms and values, knowledge of practices that take into account the information needs of children and teens, and a general good faith desire to find a solution that respects the diverse perspectives in the community.

To better understand the important relationship between the community and the library in the development of guidelines for access to the Internet, I believe it is useful for me to describe my own experience in the state of Washington.

The Fort Vancouver Regional Library (FVRL) is a public library district serving three counties and twelve cities in southwestern Washington State. FVRL has been providing public Internet access since 1996 from terminals located in 10 branches. Library staff developed a home page with links to sites that we knew would be helpful to library users. These included sites developed particularly for children and teens. The following year, staff identified a number of search engines that offer filtered searching and we revised our home page to offer library users a choice between searching with filtered search engines and unfiltered searches.

Last year the Library Board, appointed by elected local officials, began a public process to study the Library's policies and practices concerning Internet access. At the March 1998 Board meeting, staff presented a background report on the Internet and software filtering. The Board Policy Committee began an intensive study of the Internet and filtering issues. A lab was set up for their use with a number of filters to try out. Information was gathered about what other libraries were doing and about the constitutional issues involved. Public comment was solicited in a number of forums. The Policy Committee drafted a Policy on Access to Electronic Information that was then subject to a public hearing and a public open comment period. After three months of public input and study, the policy was adopted at the August meeting.

The policy firmly states that it is against library policy to access, download, or disseminate materials that the courts have found to be illegal. The policy states that following this prohibition is the responsibility of the library user. Parents and guardians are responsible for the behavior of their own minor children. However, the policy also directs library staff to explore the availability of effective and economically feasible technology to enable parents to limit their own minor children's use of electronic resources in the library. Staff are directed to take steps to protect the privacy of Internet users and to minimize unintentional viewing of the Internet.

In accordance with this Board mandate, the Library has taken the following steps:

1. We have selected a commercial software filter that will be installed on each Internet terminal desktop to give the searcher three choices of a searching environment: commercially filtered; filtered search engines, or unfiltered. This choice will be in place soon.

2. We have selected a vendor to develop software that library patrons will use to sign-up for time on our Internet terminals. The software will make it possible to electronically enforce time limits on Internet use in the library and to close all files at the end of an Internet search session. This software will also make it possible for Internet users to choose whether they want to search with a commercial filter, with filtered search engines, or unfiltered. That choice will be part of their library card record so that they will not have to use their limited time at the terminal to choose a searching environment.

One of the main reasons why we are investing in this software development is that it will make it possible for parents to make the choice to require that their children use either a guided or filtered search when they use a library Internet terminal. This choice will be part of the child's library card record, so the parent will need to make that choice only once. The vendor has promised this functionality within six months.

3. FVRL has privacy screens on all of its Internet terminals. We are involving the public in testing various designs of recessed screen terminals to further protect patron privacy.

4. A committee composed of library staff and several members of the public are designing a training program for parents that will provide them with information about the Internet so they will be better prepared to guide their children's use of the Internet.

All Fort Vancouver Regional Library Board meetings are advertised and open to the public. The agenda includes opportunities for public comment. The Board meets in a different community each month. Therefore, citizens throughout the library district have had an opportunity to discuss this issue with the Library Board in a meeting at their local branch library. Although a few individuals have continued to ask the Board to require software filters with a default of "on", a majority of those who have commented support the approach of individual choice of technological tools with parents making those choices for their children. They do not want the library, or any other governmental agency, to force one choice on all library users. The fact that the majority of our community supports the policy is, we believe, strong evidence that specific solutions concerning children’s Internet use ought to be left to local communities.

While Fort Vancouver’s process led to one policy result, other local communities have reached different conclusions. For example, the Santa Clara County Library, located in the heart of Silicon Valley, also has grappled with the issue of access to the Internet. In late 1996, in response to a group of concerned parents who asked the library to install filtering software and restrict minors’ access to the Internet, the library’s governing board began a discussion that was to last for almost two years. The library had experienced only a handful of “incidents” where minors accessed “inappropriate” sites and the number of concerned parents was small in relation to the district population. Many other parents and members of the general public strongly disagreed that the library should assume the requested monitoring, believing that to be the role of the parent.

For a period of time the Board’s regular business was subsumed by volatile meetings where many individuals expressed impassioned and highly polarized positions. In addition, the library’s eight advisory commissions also held public hearings and the various city councils considered this issue.

To the Board’s great credit, they recognized that this decision could not be made without considerable evaluation and thought. Despite an inflammatory situation, the Board resisted a quick decision. To help the Board gather the broadest range of opinion and represent the needs of all of the stakeholders, the library hired the Markkula Center for Applied Ethics, an ethics center affiliated with Santa Clara University that works with

community organizations where values are in conflict.

Markkula’s charge was to provide a neutral place for all players to express their opinions. They also were to offer a process to the Board for making an ethical and thoughtful decision that honored the concerns of everyone. Markkula was not charged to recommend a solution but to focus on an ethical process. Over a several month period, they met with parents holding widely diverse opinions and with librarians, policy makers, the general public, and minors. A report was produced (www.scu.edu/ethics) that, along with the record from community meetings, led to the establishment of criteria for making a decision.

The criteria included:

· Providing options for parents

· Preserving choice unmonitored by staff for all patrons

· Honoring the library’s public forum status

· Creating a more protected area of the library for younger children

· Ensuring privacy of all patrons

In turn, these criteria led to a solution supported by most library users:

· Place filtering software on children’s room Internet computers

· Offer choice of filtered or non filtered access on all other Internet computers

· Allow patrons of any age freedom to choose the type of access they desired without staff monitoring of content

While a few individuals have since asked the Board for a more restrictive policy, the great majority of users in Santa Clara have found the solution acceptable and the library has had virtually no complaints.

In yet another example, in the state of South Carolina, two years ago, as a condition of receiving high-speed Internet access each public library was required to develop an Internet access policy and to have the library board approve the policy. But the state did not dictate the specifics of that policy, wisely leaving the actual contents of the policy up to each local library and its board.

The South Carolina State Library provided a sample policy to public libraries that addressed the fundamental issues that should be considered in implementing public access to the Internet, as well as a procedures checklist. The state library urged that, if a library adopted the sample policy, it should re-evaluate it within six to nine months to modify it to suit local needs. Some libraries and boards are using the sample policy; many libraries have modified it in a variety of ways. Some libraries require filtering of at least some terminals; others do not. Some libraries held discussions with their boards on the policy. Others worked with their boards to hold public hearings, to consult experts, or to take other steps in the formulation of their policy that best fitted their local circumstances and the needs of their communities. Every public library in the state has since developed a policy, all of which are on file at the state library.

While the processes and solutions in Fort Vancouver, Santa Clara and South Carolina differ; all are examples of why local control over these difficult decisions are essential. Unlike a “top down” federal mandate, a community process:

· Promotes understanding of the public library and its importance as a public forum.

· Brings the opinions of every stakeholder to the table, not just those of a minority group.

· Promotes decisions that work toward a broad middle ground

· Honors legal and constitutional concerns

· Supports a decision based on thoughtful deliberation as opposed to emotion.

· Creates a structure that can work in an arena where the environment is constantly changing

· Produces a solution that has broad community support

It is acceptable for Congress to require schools and libraries to develop policies around children's Internet access. But dictating a solution to local communities would undermine the thoughtful processes that most libraries and schools have already undertaken, and that they will need to regularly review, revise, and update with board and community involvement.

There are nearly 9000 public library systems in the United States, with nearly 16,000 main and branch library outlets. "The 1998 National Survey of Public Library Outlet Internet Connectivity" showed that 85 percent of library outlets had in place a local Internet use policy. About 15 percent use filters on at least some of their public workstations. While nearly 74 percent of libraries offer some public Internet access, only 45 percent offer multimedia public Internet access with connections at speeds greater than 56 kbps, and 43 percent had only one multimedia workstation available to the public. Libraries' technological capabilities, services, and policies will continue to evolve with technological advances and user expectations.

The issue of how best to guide children’s Internet access is often treated as an easy yes or no decision when, in fact, it is complex and deserves a full range of discussion in the community. In my experience, those discussions lead people of all persuasions to recognize that there is no simple answer to this complicated issue and to work toward a viable solution.

Congress must understand that there is no one-size fits all solution that the federal government can impose that is better or more thoughtful than the solutions communities adopt. I am hopeful that the Committee will recognize the vital role that libraries can play assisting parents to help their children learn to use these marvelous resources in ways consistent with their family values.

Appendix D

Testimony of

Carolyn A. Caywood

The Children’s Internet Protection Act (CIPA)

before the

House Committee on Commerce

Subcommittee on Telecommunications and the Internet

April 4, 2001

Thank you for the opportunity to participate in this important hearing today. My name is Carolyn A. Caywood. I am the Bayside Branch Librarian in the Virginia Beach Public Library System. My branch serves a population of 85,000 people and our library system serves a population of about 450,000 people overall. I have been a librarian for over twenty-eight years.

I am also a member of the Freedom to Read Foundation Board of Directors and an active member of the American Library Association (ALA). However, I am here today in my capacity as a library branch manager to share with you our experiences in Virginia Beach libraries, experiences I know to be similar to situations across the country as it relates to libraries and filtering and the implications of the Children’s Internet Protection Act (CIPA) enacted in the last Congress.

As you know, this legislation requires the installation and use by schools and libraries of technology that filters or blocks Internet access to various types of images on all computers as a condition of eligibility for E-Rate discounts or certain technology funding under the Library Services and Technology Act (LSTA) and the Elementary and Secondary Education Act (ESEA).

I will leave the discussion of the legal and Constitutional issues to the attorneys. We are all waiting for the results of the litigation recently initiated by ALA and others. And, we are all waiting for the promulgation of rules by the Federal Communications Commission (FCC), and guidance by the Institute of Museum and Library Services (IMLS) and the Department of Education to see how the law may be implemented.

The Virginia Beach Public Library System, a department of the City of Virginia Beach, has developed and implemented its Internet use policies. While the details are unique to us, our story is similar to those from hundreds and hundreds of other libraries in the country. And, the story is comparable also to the K-12 public and private schools. Communities across the country are already addressing the issues raised by the Internet. Library boards and school boards have already grappled with and developed policies and networks that meet the needs of their communities. Some states, including my state of Virginia, have their own rules requiring Internet use policies. A few states require filters of some sort.

I want to make the following points with you in this testimony:

· Responsibility for making decisions about Internet usage policies and procedures should always be made at the local level within the bounds of the Constitution. Library and school boards and their communities have the responsibility, which they are already exercising everyday. They are best equipped to make decisions based upon the needs, values and resources in their respective communities;

· Technology cannot substitute for an informed community, effective librarians and teachers, educated families and trained Internet users;

· Resources devoted to education are more effective in the long run to protect our children than having Federally mandated filters installed at local expense, especially when that mandate removes options for patron choices about using filters or not.

For the record: I want to applaud our Nation's libraries and librarians. All librarians share the Congress’ concerns underlying this law -- that children’s experiences on the Internet be safe, educational and rewarding. No profession is more vitally concerned about children and their safety, development and growth than our Nation's librarians. We have been unfairly maligned and our position misconstrued by those with a different political agenda. Their hype diminishes the concerns that all of us have for our children as we all struggle to make these difficult public policy decisions together. Librarians know as well as anyone else, that, as new technologies proliferate, it is critical that we balance the extraordinary value they bring to communications and lifelong learning with responsible, safe use and careful guidance through education and training.

The core belief of libraries is that knowledge is good. With it, people can take charge of their future. Librarians take seriously the First Amendment limits on government, of which we are a part, and we promote intellectual freedom because that's the only environment in which learning can thrive. Libraries are not prescriptive, we do not endorse the contents of our collections or judge the information people seek. Librarians cannot nor should not substitute for parents. These important Internet decisions must be made by parents.

Libraries are tax supported institutions generally providing no-fee public services. We ensure that each person has the opportunity to learn and discover new ideas and different opinions. In recent years, that has meant adding Internet access to prevent a Digital Divide between those with access to electronic information and those without. Not having Internet access is becoming a form of social marginalization, but even owning a computer is not enough if a person lacks the skill to use it effectively. The skill divide is as important as the economic divide.

I believe the Virginia Beach situation, which is typical of what is happening across the country, supports how these responsibilities are taken fully and seriously. On the issue of E-rate and filtering in Virginia Beach: we get $25,000 from the E-rate. We use filters in three ways: 1) to present the best web sites for kids; 2) to block chat rooms; and 3) to provide patron options for Internet searches in the library branches.

For example, on the "Kidsnet" pages of our web site, our library system uses filters to block everything but the URLs that have been selected by our library staff. In other words, ALL other URLs are blocked. Children going to the "Kidsnet" site find only materials our librarians believe is age appropriate and developmentally appropriate materials.

We provide ongoing classes and training sessions in the library branches for different age groups, including family sessions. We provide an online list of links for parents to learn more about using the Internet, preferably in conjunction with their children. This list includes interactive exercises that parent and children can do together to find out and discuss questions about privacy, using the Internet, safe web surfing, and so forth. I encourage you to review our web site:

http://www.virginia-beach.va.us/dept/library/families/kid.html

We have had, and continue to have, open, broad and ongoing discussion within our community about Internet use and when and how we use filtering. We will continue to apply for the E-rate but we cannot break faith with our community and the policies it has established through public dialogue, education, and local decision making. The relationship between the community and the library in the development of guidelines for access to the Internet, is extremely important in Virginia Beach and elsewhere.

As a practicing librarian in a community that has developed a policy for addressing children’s Internet use, I believe that CIPA will have a devastating impact on the ability of all library users to access valuable constitutionally protected material. Equally, if not more importantly, CIPA will actually increase the risks for many children because filters give parents a false sense of security. What is more, it strips library boards and local communities of local control and decision making and will impose extraordinary financial and administrative burdens on libraries and schools.

As a branch librarian in Virginia Beach, I have had direct experience with the development and adoption of policies for library patron access to the Internet. In my experience, the role of the community in helping to inform and shape a solution is absolutely critical. My concern with the law is that, while it permits some discretion for local officials to determine what material is “deemed to be harmful to minors” and what software to use to block content, it denies local communities the opportunity to determine what approach will best serve children in these communities in dealing with challenging content.

It is not just that one solution doesn't fit all communities. It is also that a Federal mandate on a matter so closely tied to local norms and values is, in my view, counterproductive and even harmful. The law may not only discourage communities from doing the hard work to reach their own solutions and to educate themselves, it also lacks the legitimacy necessary to foster broad community support.

While no one approach to Internet safety will satisfy everyone in the community, I believe it is possible, indeed necessary, to work with the community to fashion a “bottom up” approach that respects community values, to address core concerns and to provide useful solutions. Not surprisingly, local decision-making processes vary significantly and the solutions are extremely diverse. But what they have in common is involvement of the community, understanding of local norms and values, knowledge of practices that take into account the information needs of children and teens, and a general good faith desire to work together to find a solution that respects the diverse perspectives in the community. Libraries are educating and encouraging parents and children to work together and have family dialogues about how best to use the Internet and other library resources by developing search skills, critical thinking and knowledge of risks and benefits of using the Internet.

Virginia Beach developed our policies as part of a larger dialogue on what kind of library services our community wanted and needed. We started discussing the Internet and filters with the public as early as 1994. We also started a public dialogue about library services as a whole and how the Internet and other electronic resources fit into this mix of services. This was done as part the process we used for developing long term plans for the expansion, construction and/or remodeling of our library branches. These public dialogues were extensive and held throughout the City in a series of eight meetings. It included discussions of just what the public wanted in terms of the balance between books and other printed materials vs. electronic resources.

Starting with these community discussions, our library launched many Internet education programs for individuals and families. It is important that our education programs inform all stakeholders about the Internet and its strengths and weaknesses so that informed decisions can be made. We continue to provide Internet training for parents and for families through classes and literature. In this process we encourage parents to ask whether their children know their own family values, whether they know and understand how best and safely to search the Internet, and how to behave online, in chat rooms, and on email.

We discuss with parents that no one sends a toddler out to cross even a neighborhood street alone. Adults accompany their children and stay with them at the roadside, until they are mature enough and trusted enough to cross on their own. As a child gets older they learn, again with more adult training and supervision, how to cross busier roads. They eventually learn that it is never wise to dash across a major interstate highway. It just isn't safe. The same type of incremental education and opportunities can and should be applied to using online Internet resources.

Our library advisory board, like hundreds of library boards across the country, has been directly involved in developing and leading the public discussions that have shaped our policies. Staff at all levels are also involved. We have provided continuing staff training and discussion about these issues so that staff understand and feel comfortable with the community policy. And, because this is a community-wide issue and we are a department of city government, we also met with the police department, the sheriff's department, and the office of the Commonwealth's Attorney during policy development.

We met with the recreation department, the schools, and even the public works department to inform and explain the community policy. If someone finds something on the Internet that they think is obscene or child pornography, we encourage them to go to the police with their complaint to have it properly investigated. Our policy is not static - just as the technology is not static. For example, right now we're amending our polices to deal with instant messaging issues.

In our branch, we have six Internet public access terminals not counting the terminal devoted to "Kidsnet." Patrons have a choice about whether to use a terminal that is fully filtered or one without filtering. One terminal is fully filtered using I-Gear software. We utilize their maximum level of filtering on that terminal which is in an open desk-carrell. There are five other terminals with no filtering.

The unfiltered terminals are designed for maximum privacy so that no one but that patron can see the screen. We do this in part so that there is no "visual startlement" for any other patrons. You have to invade their physical space to see what they are looking at. This is extremely important for all types of users. (Imagine looking up information about your own cancer treatment and likely prognosis in a public area.) We respect that different people have different values and comfort levels. That is why our community developed this flexible policy that respects patron choice.

Even before we offered public access, we had extensive staff training and discussion. We are sensitive to the concerns of our employees to help them understand why and how the policy was developed. We also have a complaint process although we remind people that we are a library, not a court of law; we are not authorized to legally determine whether something is obscene or not, whether it is Constitutional or not.

Now with CIPA, those well reasoned and community supported outcomes will be swept away and replaced by a blunt, indeed a crude instrument that cannot respect First Amendment freedom, distinguish between the needs of adults and children, or between the needs of a 7 year old and a 17 year old. The law does not respect the diversity of values of our communities or the power of concerned adults to find common sense solutions to protect children. Sadly, the communities that will suffer most from the CIPA mandate are those where librarians are struggling to provide the first bridge across the digital divide and most need the E-rate discounts.

What is expected from librarians under CIPA? Simply put -- to do what cannot be done. As Clarence Page so eloquently put in a recent editorial in the Chicago Tribune to, "force them to bear the cost of technology that is expected to do what technology cannot do: make value judgement about what material may be too pornographic, hateful, illegal, or violent for human consumption."

It would be difficult to put a price on the loss of the library as a "mighty resource in the free market of ideas" (6^th Circuit 1976). It would be difficult to put a price on the transformation of the librarian into a full time content monitor and censor. It would be difficult to put a price on the replacement of trained librarians and teachers, working and living within their communities, by a filtering company which must sell to a national market to make a profit and which typically refuses to disclose its blocking criteria, their employees' qualifications, their "point of view" or their biases.

Librarians are well aware that Internet access can create or exacerbate social problems, but we are philosophically committed to finding answers in humane, not mechanical ways. We look to education, both for skills and character, rather than to technology, for solutions. We cannot and should not substitute for parents. It is precisely because libraries are not a mass medium that we have no way of knowing what any individual child's parents would choose for that child. We constantly urge parents to be part of their child's library, not just Internet, experience because no one knows their child better or can apply their personal values better. And, we do not want our parents to have a false sense of security by relying too heavily on technological measures. The Internet is not the issue -- it's people and behavior that are at issue.

Now, with CIPA, Congress has substituted its judgment for libraries all over our country that have -- with their communities -- tackled the tough questions on how best to guide children's Internet access and reached a diverse set of solutions. When Congress enacted CIPA, the issue of how best to guide children’s Internet access appeared to be treated as an easy "yes or no" decision. In fact, it is complex and deserves a full range of discussion in the community and in the Nation. In my experience, those discussions lead people of all persuasions to recognize that there is no simple answer to this complicated issue and to encourage us all to work toward a viable solution.

In the end, the CIPA law forces libraries to make an impossible choice: submit to a law that forces libraries to deny their patrons access to constitutionally protected information on the Internet or forgo vital Federal assistance which has been central to bringing the Internet to a wide audience. It is because the CIPA law demands that libraries abandon the essential role that they play in a free society as the "quintessential focus of the receipt of information." (Third Circuit 1992) that the American Library Association, the Freedom to Read Foundation and many local libraries and state library associations have challenged this law in Federal Court.

Although I do not agree with the decision made by Congress, I am hopeful that your Subcommittee will recognize the vital role that libraries play in assisting parents to help their children and themselves learn to use these marvelous resources in ways consistent with their family values. Although I believe that CIPA cannot and will not achieve the goals of the promoters of filtering, and that, in the process, communities and the First Amendment will be the victims, I am hopeful that this will start a renewed dialogue between your Subcommittee, the library community and other stakeholders. I realize that it is too much to suggest that Congress should revisit this issue but I believe that we must work together on how best to provide our children, lifelong learners and students with the skills and the resources to function effectively and safely in the information age of the Internet.

Congress must understand that there is "no one-size fits all" solution that the Federal government can impose that is better or more thoughtful than the solutions communities adopt. Even as we all wait for the pending litigation process to be completed, we in the library community, stand ready to work with you and to continue this dialogue.

Appendix E

Testimony of Audra Caplan

Associate Director

Harford County Public Library

Harford County, Maryland

Online Safety for Children and Teenagers: Innovative Solutions

Before the Congressional Children’s Caucus

and the

Congressional Missing and Exploited Children’s Caucus

July 26, 2001

Thank you, Rep. Jackson-Lee, Rep. Ros-Lehtinen, Members of the Children’s Caucus, and Members of the Missing and Exploited Children’s Caucus, for giving me the opportunity to participate in this important briefing today. My name is Audra Caplan. I am the Associate Director of the Harford County Public Library System, which has 9 branches and an administrative office located northeast of Baltimore, Maryland. The library system serves a population of about 219,000 people. I have been a librarian for 21 years. Today, I sit before you representing both my library, and the American Library Association.

The subject of children’s online safety is an important one. ALA shares this caucus’ concern that children’s online experiences be safe and rewarding. We at ALA recognize that along with the vast educational, communication, and career opportunities Internet access can provide, come problems, including risks to privacy and exposure to inappropriate material. Librarians are at the forefront of helping all library users – including children – to navigate the complex and ever-changing technology of the Information Age.

While many people view the use of blocking or filtering technology as the “silver bullet” that will ensure children’s safety online, the truth is that filtering technology is imperfect. Further, some children seem to view the presence of filters as challenge, and are inspired to – often successfully – circumvent the technology just because it is there. ALA believes that education is the most effective way to ensure safe and successful use of the many resources available online. And the best people to provide that education are librarians. We do just that nearly every working day. Today, I am here to advocate for Congress’ support of information and media literacy initiatives to augment the educational efforts currently being undertaken by individual librarians, the ALA, and local libraries throughout the United States.

There is no question that American people view the Internet as a useful resource, including information on nearly any topic imaginable. A recent study commissioned by the Markle Foundation and conducted by Greenberg Quinlan Rosner Research found that 91% of Americans view the Internet as “informative.” In fact, the Markle study also found that Americans are much more likely to think of the Internet as a global online “library” than as any other commercial, civic, or educational metaphor.

While increasing numbers of Americans have access to this informative resource at home, for many lower-income Americans, the library is the primary point of access. According to a paper published last year by the Consumer Federation of America and Consumers Union, people who are “lower income, elderly, and minorities are more likely to be among the disconnected” – those Americans without home computers or home Internet access. An MCI LibraryLINK® study released in April 1998 found that approximately 5.6 million individuals accessed the Internet through public libraries in the six months prior to the survey. That was an increase of 86% over a similar study MCI conducted a year earlier, and a tripling since 1996. While more recent specific information is unavailable, it seems impossible that the number of Americans using computers at libraries could have done anything other than continue to grow.

It is clear from these statistics that libraries and librarians serve as the gateways to the Internet, and frequently, as Internet guides, to millions of Americans. This is because the skills inherent in librarianship are precisely those that Americans of all ages need in order to become savvy, safe, and successful Internet users. Every day, librarians help adults and children find information they are looking for, in every form of media, from books and magazines to newspapers, videos, computer software, online databases, and of course, the Internet. As librarians we are trained to sort and classify information, identify valuable resources and distinguish them from unreliable or inappropriate material. Most importantly we can and do impart these skills to library users of all ages.

Beyond our members’ day-to-day Internet educational activities, the ALA as an institution has engaged in a number of public efforts to develop and encourage technology skills in our patrons. One such initiative, launched by former ALA President Nancy Kranich, established Information Literacy Community Partnerships. This continuing project fosters partnerships between public, academic, school, and special librarians, business and industry, related non-profit organizations, the general public, other education groups, existing networks, social service entities, government groups and other interested local community groups to explore and realize the vision of the importance of an information literate populace for the 21st century.

The ALA has also developed a number of additional educational programs efforts that libraries throughout the United States can use, either as part of Information Literacy Community Partnerships, or “out of the box.” These efforts include:

ICONnect – The ALA’s ICONnect, including both the KidsConnect and FamiliesConnect projects, has been a great resource for kids, families, teachers and librarians for several years. It offers e-mail based classes that take place over the course of a month. Some of the courses offered online during 2001 have included:

· Searching the Web Effectively

· Navigating the World Wide Web

· K-12 Internet Issues

· The School Library Media Specialist in the 21st Century

· Integrating the Internet into the Elementary Curriculum

@yourlibrary – In June 2001, the ALA launched a new public education web site called @yourlibrary. It includes education for parents about how their children can and should use the library, tips for Internet safety at the library and at home, suggested web sites for children, teens, parents, and even senior citizens! http://www.atyourlibrary.org/

GetNetWise – The ALA worked closely with the Internet Education Foundation to develop a resource geared towards parents, with information about Internet safety issues for children of all ages, collections of great web sites for kids and families, how to report trouble online, and for families who want to use technology tools like filters at home, information on finding a product that suits their values and circumstances. Recently, ALA worked with GetNetWise on Families Online Week, and highlighted these efforts at the ALA Annual Conference in June 2001.

We believe that libraries must work closely with the communities that they serve in order to effectively educate patrons and particularly children on the promise and the risks of going online. Without community input and involvement, local libraries will lack and understanding of local norms and values that are necessary for development of reliable, enforceable, appropriate local Internet Use Policies. Moreover, if libraries make decisions about how to deliver Internet access without community involvement, they will not understand the true needs of their patrons, especially those patrons who are children and teenagers. Those libraries may miss particular sensitivities or concerns of their constituencies.

For these reasons, the ALA has encouraged collaborative efforts between local libraries and schools that provide the entire community with a seat at the table in Internet Use discussions. We note with particular approval the efforts in San Francisco, Canton Michigan, and Milwaukee Wisconsin, to educate patrons on Internet usage:

The San Francisco Public Library has a Kid’s Page, which includes Internet safety rules & resources, links to homework help and subject specific pages that kids should find helpful, and a link to the library’s calendar of events. They also offer classes in basic Internet and computer skills in English, Spanish, and both Mandarin & Cantonese Chinese. They also provide targeted educational information for adults, teens, children, and families.

The Canton Public Library in Canton, Michigan, has a “CyberKids” room for 7-12 year old children. On the computers in that room, they have age-appropriate games, and filtered Internet access. All children 7-12 can use the CyberKids Room, but the library also has a “CyberKids Club” which requires completion of an orientation class that teaches kids about the Internet and how to surf safely and wisely.

The Milwaukee Public Library offers a number of Internet classes, including a special program for parents to attend with their children. That course, which discusses how to use the Internet, and use it safety, is called “Internet Tips for Parents.” This class focuses on teaching families about the educational and communications potential of the Internet, while providing guidelines for being safe and avoiding problems.

At my library, we take a multi-faceted approach to Internet safety and information literacy for both children and adults. We have initiated a number of Internet education programs for children of all ages and their parents. Examples of these include:

Student Survival Kit – Geared to 3^rd –5^th graders, this program teaches students how to use our databases and suggested web sites to complete their homework.
Web Sites for Day Care Providers and Parents – Teaches providers and parents how to explore the web and how to find and evaluate sites appropriate for their children.
What Do You Do When the Paper’s, Like Due Tomorrow? – Geared to Middle and High School students, these sessions offer skills in completing assignments and research papers using the internet and on-line databases.
School’s Out – Do You Know Where Your Children Are? – A representative from the U.S. Attorney’s Office offered parents a session on how to provide a safe internet environment for their children.
Introduction to HTML – Geared to teens from 14-18, these classes offer training on how to create a web page.

In addition, we have offered training to school classes, Boy and Girl Scout troops, Boys an Girls Club children and children from the Police Athletic League Center in Harford County. We also have an outreach vehicle that goes to after school sites throughout the county that has 2 public computers with internet access and we instruct children on this vehicle in appropriate and safe use of the internet. We also have done numerous presentations for school teachers, local community organizations and business groups on use of the internet and our online databases.

In addition to special programs and workshops for children and parents, we actively guide our patrons through bibliographies, pathfinders and homepage links to accurate, up to date, age appropriate sites. We have a committee of 24 librarians broken into 8 subject groups who search the web for the best sites under their subject area. These are housed on our library homepage under “See Worthy Web Sites. Two of the areas are Power Sites for Kids and Teen Zon, both of these sites link to ALA-developed sites including Teen Hoopla and 700 + Great Sites for Kids. Our selected sites are monitored regularly for accuracy and viability. Additionally, we create pathfinders for popular areas such as finding financial aid for college.

All of us – government officials, parents, librarians, and teachers – have important roles in helping the next generation develop the skills it needs to manage in the Information Age. Children growing up now will spend their entire lives managing quantities of information and types of media that were unimaginable when I was growing up. As adults, we must provide those children with the critical thinking and information literacy skills that enable them to make good decisions. As Parry Aftab, author of The Parent's Guide to Protecting Your Children in Cyberspace observed, “The most effective filter is the one between their ears.”

The best way that Congress can support and enhance libraries ability to help children have safe, educational, age-appropriate, and fun experiences using the Internet is to support information and media literacy education – in short, to strengthen what Ms. Aftab called the filters between their ears.

We hope members of the Children’s Caucus will consider taking leadership to promote Internet and media literacy in children and adults. This could be promoted in several ways. First, we ask you to consider sponsoring legislation that focuses on promoting curriculum development for teaching information and media literacy skills. Local community libraries and schools, as well as college departments of education and of library and information science, should be encouraged to develop programs that reflect the needs, resources, and priorities of their communities. Federal grants to develop pilot programs and curricula for teaching information and media literacy to children, youth, and adults would permit local communities to focus resources into developing innovative programs, and allow the nation to determine what kinds of educational programs are the most effective.

Second, we ask you to use the “bully pulpit” of your position as Members of Congress to help raise awareness about information and media literacy and online safety, and the importance of these issues for both children and adults. This could include educating your constituents through articles in your district newsletters, holding press events with librarians and teachers conducting the kinds of programs described above, and linking to resources like ICONnect and GetNetWise from your Congressional web sites, as Members such Rep. Jennifer Dunn (R-WA) and Rep. Martin Frost (D-TX) have done with the GetNetWise web site.

Thank you again for permitting me the opportunity to share with you the ALA’s vision of how we can effectively teach children – and adults as well – to become safe, savvy, and successful Internet users.

^[1]Throughout this brief, “PFF” cites refer to paragraph numbers in Plaintiffs’ Proposed Findings of Fact.

^[2]It is well settled that the First Amendment encompasses not only the right to speak but also the right to receive information. See, e.g., Reno, 521 U.S. at 874 (invalidating statute because it “effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another”); Board of Education v. Pico, 457 U.S. 853, 867-68 (1982) (plurality opinion) (“[T]he right to receive ideas follows ineluctably from the sender’s First Amendment right to send them.”); Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“th[e] right to receive information and ideas, regardless of their social worth . . . is fundamental to our free society.”); Lamont v. Postmaster General, 381 U.S. 301, 308 (1965) (“The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them . . . [for] [i]t would be a barren marketplace of ideas that had only sellers and no buyers.”) (Brennan, J., concurring). The right to receive information extends to minors as well. See Pico, 457 U.S. at 868 (plurality opinion); Tinker v. Des Moines Indep. Cnty. Sch. Dist., 393 U.S. 503, 511 (1969).

^[3]In addition, the newly defined mission now proposed by the government and some its library witnesses is not even accurate. As the evidence at trial showed, public libraries routinely provide access to some materials in their collections, including books, magazines, and videos, that feature nudity or are otherwise sexually explicit. PFF 96.

^[4]The list of prohibited sites compiled by blocking software companies are the same regardless of whether the particular software product is designed for use in a school, home, business, or library, and regardless of the geographic location of the user. The blocking software makers often employ the standard of the least tolerant audience in determining whether to add a site to the list. PFF 183, 195. For example, plaintiffs’ expert Dr. Geoffrey Nunberg testified that the Web site salon.com was blocked as a “Sex” site by at least one blocking software company because the site – which contains a wide array of political, social, and cultural commentary – contained some minor reference to sex. PFF 222.

^[5]The defendants presented evidence that the Tacoma, Washington public library has developed software that it uses in conjunction with commercial blocking software that blocks images while allowing the text to be viewed. PFF 193. Tacoma’s approach does not even approach curing the overbroad reach of its blocking software. That is because the blocked images are still determined according to the caprices of Tacoma’s blocking software. Thus, if the blocking software used by Tacoma is enabled to block Playboy.com, pictures of automobiles and interviewees such as Jimmy Carter would be blocked along with pictures of Miss September. Moreover, if Tacoma’s blocking software incorrectly blocks an entire site – a frequent occurrence, as discussed below – the images will also be wrongly blocked by Tacoma’s technology.

^[6]As explained in more detail below, see infra Part III, the software also blocks a significant amount of protected speech as to minors. First, the software blocks sites (such as the online version of Sports Illustrated) that are not harmful to minors of any age. Second, because the software does not differentiate between older minors and younger minors, it blocks a significant amount of speech that is fully protected as to older minors. PFF 171.

^[7]Because Greenville also blocks the categories of “Tasteless” and non-pornographic nudity, the rate of overblocking in Greenville, as measured against the Act’s definitions, is certainly much higher than estimated by Mr. Finnell.

^[8]David Biek of the Tacoma Public Library testified that he believes that the overblocking rate of the blocking software used by his library is lower than that found by Mr. Finnell. Mr. Biek’s self-serving assessment that he is doing a good job was unsupported by any data and thus was unreviewable by either the plaintiffs or this Court. It is also flatly contradicted by Mr. Finnell’s analysis of the Tacoma Public Library’s logs. PFF 167.

^[9]As noted above, in some instances the line drawn is even more invidious: evidence that the software tends to target sites with certain messages – for example, gay-related sites – demonstrates that some sites are blocked on the basis of viewpoint.

^[10]CIPA’s overbroad, unconstitutional reach was hardly an accident. Congress was well aware of the inherent problems of blocking software when it passed CIPA. According to the panel appointed by Congress to “identify technological or other methods that will help reduce access by minors to material that is harmful to minors on the Internet,” filtering technology “raises First Amendment concerns because of its potential to be over-inclusive in blocking content. Concerns are increased because the extent of blocking is often unclear and not disclosed.” Commission on Child Online Protection Act, Report to Congress, Oct. 20, 2000, at 19-20, 22. Congress, however, was hardly concerned about the collateral suppression of constitutionally protected speech. To the contrary, Congress targeted not only unprotected speech on the Internet, but also “pornography” and “indecent material,” see S. Rep. No.106-141, at 2 (1999), categories substantially broader than proscribable “obscenity,” “child pornography,” or “harmful to minors”materials.

^[11]See, e.g., Playboy, 529 U.S. at 826 (“We cannot be influenced . . . by the perception that the regulation in question [of ‘sexually oriented programming’] is not a major one because the speech is not very important. The history of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly.”); Reno, 521 U.S. at 874-75 (“In evaluating the free speech rights of adults, we have made it perfectly clear that ‘[s]exual expression which is indecent but not obscene is protected by the First Amendment.’”) (citation omitted); Carey v. Population Servs. Int’l, 431 U.S. 678, 701 (1977) (“[W]here obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression.”).

^[12]See also ACLU v. Reno, 217 F.3d 162, 175 (3d Cir. 2000), cert. granted sub nom. Ashcroft v. ACLU, 121 S. Ct. 1997 (2001) (“[B]ecause of the peculiar geography-free nature of cyberspace, a ‘community standards’ test would essentially require every Web communication to abide by the most restrictive community’s standards.”).

^[13]In analogous circumstances, courts have invalidated library policies that require patrons affirmatively to request access to sensitive or disfavored materials. See, e.g., Sund, 121 F. Supp. 2d at 551 n.23 (striking down library policy requiring relocation of purportedly inappropriate children’s books to adult section of library, explaining that, “because the only children’s books located in the adult sections of the Library will be those removed under the [policy], the [policy] attaches an unconstitutional stigma to the receipt of fully-protected expressive materials”); Mainstream Loudoun I, 2 F. Supp. 2d at 797 (holding unconstitutional unblocking procedure in library Internet filtering policy because it “forces adult patrons to petition the Government for access to otherwise protected speech”).

^[14]Suggested alternatives for addressing Internet use policies are contained in the ALA’s Internet Toolkit. See Pls’ Ex. 29.

^[15]That a small minority of public libraries have required adult patrons to use blocking software in no way suggests that such policies are constitutional. In fact, in the only case litigated to a decision to date, a public library’s mandatory filtering policy was found violative of the First Amendment. See Mainstream Loudoun II, 24 F. Supp. 2d at 570.

^[16]Contrary to the defendants’ repeated assertions, the “local determination of content” provision – which prevents the federal government from reviewing local determinations “regarding what matter is inappropriate for minors,” 47 U.S.C. § 254(l)(2) -- applies only to NCIPA, and not to the more restrictive requirements of CIPA. This is clear both from the provision’s reference to “inappropriate matter,” a phrase only appearing in NCIPA, see id. § 254(l)(1)(A)(i), and from the fact that CIPA expressly defines the three categories of material it regulates.

^[17]It is telling that the FCC also refused to provide any interpretation of the open-ended disabling provisions. See In re Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Report and Order, FCC 01-120, ¶ 53 (rel. Apr. 5, 2001) (“We decline to promulgate rules mandating how entities should implement these provisions. Federally-imposed rules directing school and library staff when to disable technology protection measures would likely be overbroad and imprecise, potentially chilling speech, or otherwise confusing schools and libraries about the requirements of the statute. We leave such determinations to the local communities, whom we believe to be most knowledgeable about the varying circumstances of schools or libraries within those communities.”).

^[18]In addition, a library faces the risk of losing funding if it disables filters too permissively.

^[19]If the Court were to declare this statute unconstitutional, it would not necessarily be ruling that all use of blocking software is unconstitutional. For example, patron choice options such as those used by the Multnomah or Ft. Vancouver libraries would be permissible. PFF 308-09. Moreover, a system that blocked sites found to be obscene by a court – provided the content of those sites was unchanged – might also be permissible.

^[20]The library and library association plaintiffs are suing not only on their own behalf and on behalf of their member libraries and librarians, but also on behalf of their members’ patrons. See ALA Complaint ¶¶ 13-18. Courts have recognized the ability of speech providers to assert their patrons’ First Amendment rights. See, e.g., Virginia v. American Booksellers Ass’n, 484 U.S. 383, 393 (1988); Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1099 (9th Cir. 2000), cert. denied, 532 U.S. 905 (2001); Rothner v. City of Chicago, 929 F.2d 297, 301-02 (7th Cir. 1991); 11126 Baltimore Blvd., Inc. v. Prince George’s County, 58 F.3d 988 (4th Cir. 1995); Drive In Theatres, Inc. v. Huskey, 435 F.2d 228 (4th Cir. 1970).

Because libraries have standing to assert the First Amendment rights of their patrons, the Court need not resolve the issue of whether public libraries also have independent First Amendment rights. Although a few cases have declined to find that government entities have First Amendment rights, none of these cases have involved public libraries. And some decisions have suggested that government entities have First Amendment rights. See Creek v. Village of Westhaven, 80 F.3d 186, 193 (7th Cir. 1996); Nadel v. Regents of the University of California, 28 Cal. App. 4^th 1251, 1262 (1994) (“With the proper focus on the rights of listeners to receive information rather than on the identity of the speaker, it would seem irrelevant, for purposes of First Amendment applicability, whether the speaker is media or not, and government or not.”). The argument for finding that public entities have First Amendment rights is particularly strong when the entity in question is devoted to communication and expression. For example, the Supreme Court has held that a state-owned public broadcast station is “engage[d] in speech activity” when it “exercises editorial discretion in the selection and presentation of its programming.” Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666, 674 (1998).

^[21]Although the Court in Rust v. Sullivan applied the Salerno rule to appellants’ First Amendment challenge to Title X regulations, that holding is inapposite here. Rust v. Sullivan, 500 U.S. 173, 183 (1991). Rust involved the government as speaker, and necessarily, when the government is speaking, it can shape the contours of its message. See, e.g., Legal Services Corp. v. Velazquez, 531 U.S. 533, 541 (2001).

^[22]Although the two federal programs restricted by CIPA plainly are important sources of funding for many libraries across the country, PFF 462, 475-78, 482, 491-92, the amount of funding is irrelevant to First Amendment analysis. To establish unlawful coercion, plaintiffs need demonstrate only that the funding condition at issue is unconstitutional. See, e.g., FCC v. League of Women Voters of California, 468 U.S. 364, 390 n.19 (1984) (invalidating federal funding restriction despite fact that “vast majority of financial support comes instead” from state, local, and private sources); id. at 400 (noting that condition would be unconstitutional even if recipient received only 1% of its overall income from federal program); cf. Forsyth County v. Nationalist Movement, 505 U.S. 123, 136 (1992) (striking down assembly and parade permit fee ordinance, and holding that “[n]either the $1,000 cap on the fee charged, nor even some lower nominal cap, could save the ordinance because in this context, the level of the fee is irrelevant. A tax based on the content of the speech does not become more constitutional because it is a small tax.”).

^[23]In addition, because the e-rate and LSTA programs are designed to narrow the “digital divide,” see supra Part I.A.2; PFF 83-88, 460, 480, CIPA distorts the function of those programs by perpetuating gaps in Internet access among various groups. Under CIPA, those who rely on public libraries for Internet service will have substantially more restricted access to information than will people who have Internet access at home.

^[24]As noted previously, see supra Part I.B, evaluations of blocking software has shown that these types of sites, which may contain graphic sexual images, are frequently blocked by blocking products under the “sex” or “adult” categories.

^[25]CIPA’s disabling provision for LSTA recipients is not limited to adult use, see 20 U.S.C. § 9134(f)(3). The majority of libraries covered by the Act, however, are governed by Section 1721, the e-rate section, which trumps the LSTA section for libraries receiving both e-rate discounts and LSTA funds. See 20 U.S.C. § 9134(f)(1) (applying only to a library “that does not receive services at discount rates [e-rate discounts] under section 254(h)(6) of the Communications Act of 1934”).

^[26]Section 1712(a) of CIPA, which applies to LSTA funds, states with regard to its restrictions: “If any provision of this subsection is held invalid, the remainder of this subsection shall not be affected thereby provision.” See 20 U.S.C. § 9134(f)(6). Section 1721(e) of the Act, which applies to e-rate funds, states: “If any provision of paragraph (5) or (6) of section 254(h) of the Communications Act of 1934, as amended by this section, or the application thereof to any person or circumstance is held invalid, the remainder of such paragraph and the application of such paragraph to other persons or circumstances shall not be affected thereby.” The e-rate CIPA provisions applicable to public libraries are codified at § 254(h)(6) of the Communications Act. Section 1721(e) has not been codified.

^[27]This central purpose of the public library makes it wholly unlike the more restrictive government fora, such as military exchanges, cited by the government. See Defs.’ Post-Trial Br. at 24 (citing General Media Communications, Inc. v. Cohen, 131 F.3d 273 (2d Cir. 1997)).

^[28]As plaintiffs noted in their initial post-trial brief, the provision of recommended site lists – and not the broad availability of the rest of the Internet – most closely resembles a library’s physical collection development. Unlike with blocking software, both recommended site lists and the selection of physical materials sends no disparaging message about the materials not recommended or selected. See Pls.’ Post-Trial Br. at 8-9.

^[29] Defendants’ attempt to deny the unfettered nature of interlibrary loan is unavailing. As plaintiffs have shown, libraries will assist patrons in obtaining access to all materials except those that are clearly illegal. PFF 99. Defendants’ citations to policies at Westerville and Tulsa, Defs.’ Post-Trial Br. at 42, are not to the contrary. The Westerville library, for example, has never rejected an interlibrary loan request on the basis of content. In fact, under the library’s new self-checkout system, content review of interlibrary loan requests will be impossible; Westerville patrons will be able to borrow materials from other libraries without any Westerville staff ever reviewing the request. See Barlow 4/1/02 at 58-59. Similarly, Tulsa’s interlibrary loan policy hardly requires, as the defendants suggest, that patron requests “meet collection policies.” Defs.’ Post-Trial Br. at 42. The library’s written policy, in fact, states the opposite requirement: “Interlibrary Loan Service will attempt to provide materials not available at Tulsa City-County Library. Requests to borrow from other libraries will be limited to those items that do not fall within the scope of Tulsa City-County Library’s collection development objectives . . .” Pls.’ Ex. 66H (emphasis added); Joint Ex. 4 (Saferite Dep.), at 78-79.

^[30]Even the handful of libraries that have chosen to block Internet access from the outset indisputably provide access to innumerable online materials that the libraries never would carry in their physical collections.

^[31]For similar reasons, defendants are also wrong when suggesting that prior restraint doctrine does not apply in the public library context.

^[32]For example, under defendants’ theory, the government in Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975), lawfully could have denied auditorium access to any performance that was not “clean, healthful[] entertainment,” as outlined in the auditorium’s original dedication. Id. at 549 & n.4.

^[33]Government expert witness Cory Finnell estimated that between 7% and 15% of the unique sites blocked by three of the government’s testifying library witnesses – Tacoma, Westerville, and Greenville – were completely innocuous sites that did not match even the blocking companies’ broad definitions of sexual explicitness. PFF 10, 159.

^[34]Whatever defendants and their library witnesses mean by the term “pornography,” it undoubtedly encompasses far more speech than the narrow categories defined in CIPA.

^[35]The government also argues that its library witnesses justifiably installed mandatory blocking in an effort to comply with state obscenity or harmful to minors statutes. But all of those states exempt libraries and librarians from these laws, either by statute or authoritative legal interpretation. See, e.g., Ind. Code § 35-49-3-4(2); Ohio Rev. Code Ann. § 2907.31(C)(1); S.C. Code Ann. § 16-15-385(C)(2); Wash. Rev. Code §§ 9.68.100, 9.68.015; Pls.’ Ex. 66G; Tenn. Op. Atty. Gen. No. 00-030 (Feb. 22, 2000).

^[36]The government’s libraries regularly treat adults and children the same for the purpose of unblocking as well as for the blocking categories they enable. For example, Mr. Biek testified that the Tacoma library will refuse to unblock sites that may be considered harmful to minors even if the request comes from an adult patron. PFF 295.

^[37]Even the government’s library experts admitted that it would not be proper for a librarian to prevent adults from accessing constitutionally protected sexually explicit materials. Cronin 3/29/02 at 96-97; Davis 4/1/02 at 103.

^[38]Contrary to defendants’ argument, see Defs.’ Post-Trial Br. at 47 n.35, to establish an unconstitutional stigma claim there is no requirement that the plaintiffs prove the likelihood of improper disclosure of information. In both Denver Area and Lamont, the mere expression of a fear of disclosure and its attendant chilling effect on speech sufficed. Denver Area, 518 U.S. at 754 (referring to claims “by subscribers who fear for their reputations should the operator, advertently or inadvertently, disclose the list of those who wish to watch the ‘patently offensive channel’”); Lamont, 381 U.S. at 307 (“[A]ny addressee is likely to feel some inhibition in sending for literature which federal officials have condemned as ‘communist political propaganda.’”).

Nor is there any merit to defendants’ argument that any stigma suffered by adult patrons is justified by the interest in protecting children, relying on cases upholding harmful to minors statutes. See Defs.’ Post-Trial Br. at 47. First, there is no indication that any stigma claim even was raised in those cases. Second, those cases specifically address only harmful to minors materials, while Internet blocking software indisputably blocks access to substantially more expression. In addition, the chilling effect created by CIPA’s disabling provisions is particularly problematic because it requires library patrons to petition the government for access to protected speech; by contrast, requesting sensitive materials from private actors raises fewer constitutional concerns. Moreover, even laws that have sought to restrict “harmful to minors” material on the Internet have been struck down by the courts. See, e.g. Reno v. ACLU, 521 U.S. 844 (1997); ACLU v. Reno, 217 F.3d 162 (3d Cir. 2000), cert. granted sub nom. Ashcroft v. ACLU, 121 S. Ct. 1997 (2001).

^[39]In addition, as explained in plaintiffs’ initial brief, it hardly helps defendants’ position that some small minority of libraries receiving the conditioned funds may be willing to block patrons’ Internet access. Just as in Velazquez, where some of the recipient legal services attorneys might have chosen voluntarily to challenge existing welfare law, CIPA is also constitutionally infirm because it establishes a funding condition that seeks to take away a basic, professional choice about how to provide information to the public. See Pls.’ Post-Trial Br. at 44.

^[40]Defendants do not even attempt to invoke such a limitation on LSTA grants.

^[41]In fact, no library’s application for e-rate discounts has been denied on the basis of any Internet content provided by the library. PFF 468.

^[42]The defendants’ strained reliance on a supposed “educational purposes” limitation fails for an additional reason. The term “educational” in this context is not defined with any precision, but certainly encompasses Internet information that will be blocked under CIPA. Indeed, one of the defendants’ library experts defines “education” as “[t]he whole corpus of human experience that has contributed to who we are as a people [and] a species.” Davis 4/1/02 at 102.

^[43]Like a university, distinguished from the government speech program in Rust, the public library “is a traditional sphere of free expression so fundamental to the functioning of our society that the Government’s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted . . . .” Rust, 500 U.S. at 200.

^[44]The defendants do not dispute the ripeness of claims brought by plaintiff library associations, library patron associations, and community organizations, all of which bring claims on their own behalf and on behalf of their members.