Program in Public Law

United States v. American Library Association

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CHIEF JUSTICE REHNQUIST announced the judgment of the Court and delivered an opinion, in which JUSTICE O'CONNOR, JUSTICE SCALIA, and JUSTICE THOMAS joined.

To address the problems associated with the availability of Internet pornography in public libraries, Congress enacted the Children's Internet Protection Act (CIPA). Under CIPA, a public library may not receive federal assistance to provide Internet access unless it installs software to block images that constitute obscenity or child pornography, and to prevent minors from obtaining access to material that is harmful to them. The District Court held these provisions facially invalid on the ground that they induce public libraries to violate patrons' First Amendment rights. We now reverse.

[Congress provides two forms of federal assistance to help public libraries provide Internet access: discounted access rates under the E-rate program, and grants under the Library Services and Technology Act (LSTA). By 2000, these programs had helped 95% of the Nation’s libraries to provide public access. Upon learning that library patrons, including minors, regularly search for online pornography, Congress enacted CIPA.]

[CIPA] provides that a library may not receive E-rate or LSTA assistance unless it has “a policy of Internet safety for minors that includes the operation of a technology protection measure ... that protects against access' by all persons to “visual depictions” that constitute “obscen[ity]” or “child pornography,” and that protects against access by minors to “visual depictions” that are “harmful to minors.”” The statute defines a “[t]echnology protection measure” as “a specific technology that blocks or filters Internet access to material covered by” CIPA. CIPA also permits the library to “disable” the filter “to enable access for bona fide research or other lawful purposes.” Under the E- rate program, disabling is permitted “during use by an adult.” Under the LSTA program, disabling is permitted during use by any person.

Appellees are a group of libraries, library associations, library patrons, and Web site publishers . . . . They sued the United States and the Government agencies and officials responsible for administering the E-rate and LSTA programs in District Court, challenging the constitutionality of CIPA's filtering provisions. . . . .

After a trial, the District Court ruled that CIPA was facially unconstitutional and enjoined the relevant agencies and officials from withholding federal assistance for failure to comply with CIPA. . . . .

Congress has wide latitude to attach conditions to the receipt of federal assistance in order to further its policy objectives. South Dakota v. Dole. But Congress may not “induce” the recipient “to engage in activities that would themselves be unconstitutional.” To determine whether libraries would violate the First Amendment by employing the filtering software that CIPA requires, we must first examine the role of libraries in our society.

Public libraries pursue the worthy missions of facilitating learning and cultural enrichment. Appellee ALA's Library Bill of Rights states that libraries should provide “[b]ooks and other ... resources ... for the interest, information, and enlightenment of all people of the community the library serves.” To fulfill their traditional missions, public libraries must have broad discretion to decide what material to provide to their patrons. Although they seek to provide a wide array of information, their goal has never been to provide “universal coverage.” Instead, public libraries seek to provide materials “that would be of the greatest direct benefit or interest to the community.” To this end, libraries collect only those materials deemed to have “requisite and appropriate quality.”

We have held in two analogous contexts that the government has broad discretion to make content-based judgments in deciding what private speech to make available to the public. In Arkansas Ed. Television Comm'n v. Forbes, we held that public forum principles do not generally apply to a public television station's editorial judgments regarding the private speech it presents to its viewers. “[B]road rights of access for outside speakers would be antithetical, as a general rule, to the discretion that stations and their editorial staff must exercise to fulfill their journalistic purpose and statutory obligations.” Id. Recognizing a broad right of public access “would [also] risk implicating the courts in judgments that should be left to the exercise of journalistic discretion.” Id.

Similarly, in National Endowment for Arts v. Finley, we upheld an art funding program that required the National Endowment for the Arts (NEA) to use content-based criteria in making funding decisions. We explained that “[a]ny content-based considerations that may be taken into account in the grant-making process are a consequence of the nature of arts funding.” Id. In particular, “[t]he very assumption of the NEA is that grants will be awarded according to the ‘artistic worth of competing applicants,’ and absolute neutrality is simply inconceivable.” Ibid. We expressly declined to apply forum analysis, reasoning that it would conflict with “NEA's mandate ... to make esthetic judgments, and the inherently content-based 'excellence' threshold for NEA support.” Id.

The principles underlying Forbes and Finley also apply to a public library's exercise of judgment in selecting the material it provides to its patrons. Just as forum analysis and heightened judicial scrutiny are incompatible with the role of public television stations and the role of the NEA, they are also incompatible with the discretion that public libraries must have to fulfill their traditional missions. Public library staffs necessarily consider content in making collection decisions and enjoy broad discretion in making them.

The public forum principles on which the District Court relied are out of place in the context of this case. Internet access in public libraries is neither a “traditional” nor a “designated” public forum. First, this resource–which did not exist until quite recently–has not “immemorially been held in trust for the use of the public and, time out of mind, ... been used for purposes of assembly, communication of thoughts between citizens, and discussing public questions.” We have “rejected the view that traditional public forum status extends beyond its historic confines.” The doctrines surrounding traditional public forums may not be extended to situations where such history is lacking.

Nor does Internet access in a public library satisfy our definition of a “designated public forum.” To create such a forum, the government must make an affirmative choice to open up its property for use as a public forum. . . . . The District Court likened public libraries' Internet terminals to the forum at issue in Rosenberger v. Rector and Visitors of Univ. of Va. In Rosenberger, we considered the “Student Activity Fund” established by the University of Virginia that subsidized all manner of student publications except those based on religion. We held that the fund had created a limited public forum by giving public money to student groups who wished to publish, and therefore could not discriminate on the basis of viewpoint.

The situation here is very different. A public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of books to speak. It provides Internet access, not to “encourage a diversity of views from private speakers,” but for the same reasons it offers other library resources: to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality. As Congress recognized, “[t]he Internet is simply another method for making information available in a school or library.” It is “no more than a technological extension of the book stack.”³

The District Court disagreed because, whereas a library reviews and affirmatively chooses to acquire every book in its collection, it does not review every Web site that it makes available. Based on this distinction, the court reasoned that a public library enjoys less discretion in deciding which Internet materials to make available than in making book selections. We do not find this distinction constitutionally relevant. A library's failure to make quality-based judgments about all the material it furnishes from the Web does not somehow taint the judgments it does make. A library's need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worthwhile material; it is no less entitled to play that role when it collects material from the Internet than when it collects material from any other source. Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries' judgments to block online pornography any differently, when these judgments are made for just the same reason.

Moreover, because of the vast quantity of material on the Internet and the rapid pace at which it changes, libraries cannot possibly segregate, item by item, all the Internet material that is appropriate for inclusion from all that is not. While a library could limit its Internet collection to just those sites it found worthwhile, it could do so only at the cost of excluding an enormous amount of valuable information that it lacks the capacity to review. Given that tradeoff, it is entirely reasonable for public libraries to reject that approach and instead exclude certain categories of content, without making individualized judgments that everything they do make available has requisite and appropriate quality.

Like the District Court, the dissents fault the tendency of filtering software to “overblock”–that is, to erroneously block access to constitutionally protected speech that falls outside the categories that software users intend to block. [See opinions of STEVENS, J. and SOUTER, J.]. Due to the software's limitations, “[m]any erroneously blocked [Web] pages contain content that is completely innocuous for both adults and minors, and that no rational person could conclude matches the filtering companies' category definitions, such as ‘pornography’ or ‘sex.’” Assuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled. When a patron encounters a blocked site, he need only ask a librarian to unblock it or (at least in the case of adults) disable the filter. As the District Court found, libraries have the capacity to permanently unblock any erroneously blocked site, and the Solicitor General stated at oral argument that a “library may ... eliminate the filtering with respect to specific sites ... at the request of a patron.” With respect to adults, CIPA also expressly authorizes library officials to “disable” a filter altogether “to enable access for bona fide research or other lawful purposes.” The Solicitor General confirmed that a “librarian can, in response to a request from a patron, unblock the filtering mechanism altogether,” and further explained that a patron would not “have to explain ... why he was asking a site to be unblocked or the filtering to be disabled.” The District Court viewed unblocking and disabling as inadequate because some patrons may be too embarrassed to request them. But the Constitution does not guarantee the right to acquire information at a public library without any risk of embarrassment.

Appellees urge us to affirm the District Court's judgment on the alternative ground that CIPA imposes an unconstitutional condition on the receipt of federal assistance. Under this doctrine, “the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech” even if he has no entitlement to that benefit.” . . . .

We need not decide this question because, even assuming that appellees may assert an “unconstitutional conditions” claim, this claim would fail on the merits. Within broad limits, “when the Government appropriates public funds to establish a program it is entitled to define the limits of that program.” Rust v. Sullivan. In Rust, Congress had appropriated federal funding for family planning services and forbidden the use of such funds in programs that provided abortion counseling. Recipients of these funds challenged this restriction, arguing that it impermissibly conditioned the receipt of a benefit on the relinquishment of their constitutional right to engage in abortion counseling. Id. We rejected that claim, recognizing that “the Government [was] not denying a benefit to anyone, but [was] instead simply insisting that public funds be spent for the purposes for which they were authorized.” Ibid.

The same is true here. The E-rate and LSTA programs were intended to help public libraries fulfill their traditional role of obtaining material of requisite and appropriate quality for educational and informational purposes. Congress may certainly insist that these “public funds be spent for the purposes for which they were authorized.” Ibid. Especially because public libraries have traditionally excluded pornographic material from their other collections, Congress could reasonably impose a parallel limitation on its Internet assistance programs. As the use of filtering software helps to carry out these programs, it is a permissible condition under Rust.

JUSTICE STEVENS asserts the premise that “[a] federal statute penalizing a library for failing to install filtering software on every one of its Internet- accessible computers would unquestionably violate [the First] Amendment.” But–assuming again that public libraries have First Amendment rights–CIPA does not “penalize” libraries that choose not to install such software, or deny them the right to provide their patrons with unfiltered Internet access. Rather, CIPA simply reflects Congress' decision not to subsidize their doing so. To the extent that libraries wish to offer unfiltered access, they are free to do so without federal assistance. “‘A refusal to fund protected activity, without more, cannot be equated with the imposition of a “penalty” on that activity.’” Rust. “[A] legislature's decision not to subsidize the exercise of a ‘fundamental’ right does not infringe the right.” Rust.

Appellees mistakenly contend, in reliance on Legal Services Corporation v. Velazquez, that CIPA's filtering conditions “[d]istor[t] the [u]sual [f]unctioning of [p]ublic [l]ibraries.” In Velazquez, the Court concluded that a Government program of furnishing legal aid to the indigent differed from the program in Rust “[i]n th [e] vital respect” that the role of lawyers who represent clients in welfare disputes is to advocate against the Government, and there was thus an assumption that counsel would be free of state control. The Court concluded that the restriction on advocacy in such welfare disputes would distort the usual functioning of the legal profession and the federal and state courts before which the lawyers appeared. Public libraries, by contrast, have no comparable role that pits them against the Government, and there is no comparable assumption that they must be free of any conditions that their benefactors might attach to the use of donated funds or other assistance.

Because public libraries' use of Internet filtering software does not violate their patrons' First Amendment rights, CIPA does not induce libraries to violate the Constitution, and is a valid exercise of Congress' spending power. Nor does CIPA impose an unconstitutional condition on public libraries. Therefore, the judgment of the District Court for the Eastern District of Pennsylvania is

Reversed.

JUSTICE KENNEDY, concurring in the judgment.
If, on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay, there is little to this case. The Government represents this is indeed the fact.

If some libraries do not have the capacity to unblock specific Web sites or to disable the filter or if it is shown that an adult user's election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge, not the facial challenge made in this case.

JUSTICE BREYER, concurring in the judgment.
[omitted]

JUSTICE STEVENS, dissenting.
[omitted]

JUSTICE SOUTER, with whom JUSTICE GINSBURG joins, dissenting.

[I would not] dissent if I agreed with the majority of my colleagues, that an adult library patron could, consistently with the Act, obtain an unblocked terminal simply for the asking. I realize the Solicitor General represented this to be the Government's policy, and if that policy were communicated to every affected library as unequivocally as it was stated to us at argument, local librarians might be able to indulge the unblocking requests of adult patrons to the point of taking the curse off the statute for all practical purposes. But the Federal Communications Commission, in its order implementing the Act, pointedly declined to set a federal policy on when unblocking by local libraries would be appropriate under the statute. Moreover, the District Court expressly found that “unblocking may take days, and may be unavailable, especially in branch libraries, which are often less well staffed than main libraries.”

In any event, we are here to review a statute, and the unblocking provisions simply cannot be construed, even for constitutional avoidance purposes, to say that a library must unblock upon adult request, no conditions imposed and no questions asked. First, the statute says only that a library “may” unblock, not that it must. In addition, it allows unblocking only for a “bona fide research or other lawful purposes,” and if the “lawful purposes” criterion means anything that would not subsume and render the “bona fide research” criterion superfluous, it must impose some limit on eligibility for unblocking. There is therefore necessarily some restriction, which is surely made more onerous by the uncertainty of its terms and the generosity of its discretion to library staffs in deciding who gets complete Internet access and who does not.

We therefore have to take the statute on the understanding that adults will be denied access to a substantial amount of non-obscene material harmful to children but lawful for adult examination, and a substantial quantity of text and pictures harmful to no one. As the plurality concedes, this is the inevitable consequence of the indiscriminate behavior of current filtering mechanisms, which screen out material to an extent known only by the manufacturers of the blocking software.

We likewise have to examine the statute on the understanding that the restrictions on adult Internet access have no justification in the object of protecting children. Children could be restricted to blocked terminals, leaving other unblocked terminals in areas restricted to adults and screened from casual glances. And of course the statute could simply have provided for unblocking at adult request, with no questions asked. The statute could, in other words, have protected children without blocking access for adults or subjecting adults to anything more than minimal inconvenience, just the way (the record shows) many librarians had been dealing with obscenity and indecency before imposition of the federal conditions. Instead, the Government's funding conditions engage in overkill to a degree illustrated by their refusal to trust even a library's staff with an unblocked terminal, one to which the adult public itself has no access.

The question for me, then, is whether a local library could itself constitutionally impose these restrictions on the content otherwise available to an adult patron through an Internet connection, at a library terminal provided for public use. The answer is no. A library that chose to block an adult's Internet access to material harmful to children (and whatever else the undiscriminating filter might interrupt) would be imposing a content-based restriction on communication of material in the library's control that an adult could otherwise lawfully see. This would simply be censorship. True, the censorship would not necessarily extend to every adult, for an intending Internet user might convince a librarian that he was a true researcher or had a “lawful purpose” to obtain everything the library's terminal could provide. But as to those who did not qualify for discretionary unblocking, the censorship would be complete and, like all censorship by an agency of the Government, presumptively invalid owing to strict scrutiny in implementing the Free Speech Clause of the First Amendment. . . . .

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3 Even if appellees had proffered more persuasive evidence that public libraries intended to create a forum for speech by connecting to the Internet, we would hesitate to import 'the public forum doctrine ... wholesale into' the context of the Internet. '[W]e are wary of the notion that a partial analogy in one context, for which we have developed doctrines, can compel a full range of decisions in such a new and changing area.'

The dissents agree with the District Court that less restrictive alternatives to filtering software would suffice to meet Congress' goals. But we require the Government to employ the least restrictive means only when the forum is a public one and strict scrutiny applies. . . . [S]uch is not the case here. In deciding not to collect pornographic material from the Internet, a public library need not satisfy a court that it has pursued the least restrictive means of implementing that decision.

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