(2) the United States, Michael Powell, in his official capacity as Chairman of the Federal Communications Commission, the Federal Communications Commission, Beverly Sheppard, in her official capacity as Acting Director of the Inst.i.tute of Museum and Library Services, and the Inst.i.tute of Museum and Library Services are permanently enjoined from withholding federal funds from any public library for failure to comply with Sec.Sec. 1712(a)(2) and 1721(b) of the Children"s Internet Protection Act, 20 U.S.C.
Sec. 9134(f) and 47 U.S.C. Sec. 254(h)(6).
BY THE COURT:
__________________________________ Ch. Cir. J.
__________________________________ J.
__________________________________ J.
FOOTNOTES
Plaintiffs advance three other alternative, independent grounds for holding c.i.p.a facially invalid. First, they submit that even if c.i.p.a will not induce public libraries to violate the First Amendment, c.i.p.a nonetheless imposes an unconst.i.tutional condition on public libraries by requiring them to relinquish their own First Amendment rights to provide unfiltered Internet access as a condition on their receipt of federal funds. See infra n.36. Second, plaintiffs contend that c.i.p.a is facially invalid because it effects an impermissible prior restraint on speech by granting filtering companies and library staff unfettered discretion to suppress speech before it has been received by library patrons and before it has been subject to a judicial determination that it is unprotected under the First Amendment. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S.
546, 558 (1975). Finally, plaintiffs submit that c.i.p.a is unconst.i.tutionally vague. See City of Chicago v. Morales, 527 U.S. 41 (1999).
c.i.p.a defines "[m]inor" as "any individual who has not attained the age of 17 years." c.i.p.a Sec. 1721(c) (codified at 47 U.S.C. Sec. 254(h)(7)(D)). c.i.p.a further provides that "[o]bscene"
has the meaning given in 18 U.S.C. Sec. 1460, and "child p.o.r.nography" has the meaning given in 18 U.S.C. Sec. 2256. c.i.p.a Sec.
1721(c) (codified at 47 U.S.C. Sec. 254(h)(7)(E) & (F)). c.i.p.a defines material that is "harmful to minors" as:
any picture, image, graphic image file, or other visual depiction that (i) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, s.e.x, or excretion; (ii) depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated s.e.xual act or s.e.xual contact, actual or simulated normal or perverted s.e.xual acts, or a lewd exhibition of the genitals; and (iii) taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors.
c.i.p.a Sec. 1721(c) (codified at 47 U.S.C. Sec. 254(h)(7)(G)).
c.i.p.a prohibits federal interference in local determinations regarding what Internet content is appropriate for minors:
A determination regarding what matter is appropriate for minors shall be made by the school board, local educational agency, library or other authority responsible for making the determination. No agency or instrumentality of the United States Government may (A) establish criteria for making such determination; (B) review the determination made by the certifying [ent.i.ty] . . . ; or (C) consider the criteria employed by the certifying [ent.i.ty] . . . in the administration of subsection (h)(1)(B).
c.i.p.a Sec. 1732 (codified at 47 U.S.C. Sec. 254(l)(2)).
The government challenges the standing of several of the plaintiffs and the ripeness of their claims. These include all of the Web site publishers and all of the individual library patrons. Notwithstanding these objections, we are confident that the "case or controversy" requirement of Article III, Sec. 2 of the Const.i.tution is met by the existence of the plaintiff libraries that qualify for LSTA and E-rate funding and the library a.s.sociations whose members qualify for such funding. These plaintiffs are faced with the impending choice of either certifying compliance with c.i.p.a by July 1, 2002, or foregoing subsidies under the LSTA and E-rate programs, and therefore clearly have standing to challenge the const.i.tutionality of the conditions to which they will be subject should they accept the subsidies. We also note that the presence of the Web site publishers and individual library patrons does not affect our legal a.n.a.lysis or disposition of the case.
The OCLC database, a cooperative cataloging service established to facilitate interlibrary loan requests, includes 40 million catalog records from approximately 48,000 libraries of all types worldwide. Slightly more than 400 of the libraries in the OCLC database are listed as carrying Playboy in their collections, while only eight subscribe to Hustler.
Fort Vancouver Regional Library, for example, combines the methods of strategically placing terminals in low traffic areas and using privacy screens. A section headed "Confidentiality and Privacy" on the library"s home page states: "in order to protect the privacy of the user and the interests of other library patrons, the library will attempt to minimize unintentional viewing of the Internet. This will be done by use of privacy screens, and by judicious placement of the terminals and other appropriate means."
Indeed, we granted leave for N2H2"s counsel to intervene in order to object to testimony that would potentially reveal N2H2"s trade secrets, which he did on several occasions.
Geoffrey Nunberg (Ph.D., Linguistics, C.U.N.Y. 1977) is a researcher at the Center for the Study of Language and Information at Stanford University and a Consulting Full Professor of Linguistics at Stanford University. Until 2001, he was also a princ.i.p.al scientist at the Xerox Palo Alto Research Center. His research centers on automated cla.s.sification systems, with a focus on cla.s.sifying doc.u.ments on the Web with respect to their linguistic properties. He has published his research in numerous professional journals, including peer- reviewed journals.
A "cookie" is "a small file or part of a file stored on a World Wide Web user"s computer, created and subsequently read by a Web site server, and containing personal information (as a user identification code, customized preferences, or a record of pages visited)." Merriam-Webster"s Collegiate Dictionary, available at drew three different "samples" for his test. The first consisted of "50 randomly generated Web pages from the Webcrawler search engine." The "second sample of 50 Web pages was drawn from searches for the terms "yahoo, warez, hotmail, s.e.x, and MP3," using the AltaVista.com search engine." And the "final sample of 100 Web sites was drawn from the sites of organizations who filed amicus briefs in support of the ACLU"s challenges to the Community [sic] Decency Act (CDA) and COPA [the Children"s Online Protection Act], and from Internet portals, political Web sites, feminist Web sites, hate speech sites, gambling sites, religious sites, gay pride/h.o.m.os.e.xual sites, alcohol, tobacco, and drug sites, p.o.r.nography sites, new sites, violent game sites, safe s.e.x sites, and pro and anti-abortion sites listed on the popular Web directory, Yahoo.com."
Lemmons testified that he compiled the list of s.e.xually explicit sites that should have been blocked by entering the terms "free adult s.e.x, a.n.a.l s.e.x, oral s.e.x, fisting lesbians, gay s.e.x, interracial s.e.x, big t.i.ts, b.l.o.w. .j.o.b, shaved p.u.s.s.y, and bondage" into the Google search engine and then "surfing" through links from pages generated by the list of sites that the search engine returned. Using this method, he compiled a list of 197 sites that he determined should be blocked according to the filtering programs" category definitions. Lemmons also attempted to compile a list of "sensitive" Web sites that, although they should not have been blocked according to the filtering programs"
category definitions, might have been mistakenly blocked. In order to do this, he used the same method of entering terms into the Google search engine and surfing through the results. He used the following terms to compile this list: "breast feeding, bondages, fetishes, ebony, gay issues, women"s health, lesbian, h.o.m.os.e.xual, v.a.g.i.n.a, v.a.g.i.n.al dryness, pain, a.n.a.l cancer, teen issues, safe s.e.x, p.e.n.i.s, pregnant, interracial, s.e.x education, p.e.n.i.s enlargement, breast enlargement, . . . and shave."
If separate patrons attempted to reach the same Web site, or one or more patrons attempted to access more than one page on a single Web site, Finnell counted these attempts as a single block. For example, the total number of blocked requests for Web pages at Tacoma Library during the logged period was 2,812, but Finnell counted this as only 895 blocks of unique Web sites. Of the 895 unique blocked sites, Finnell was unable to access 59, yielding 836 unique blocked sites for his team to review.
The confidence intervals that Finnell calculated represent the range of percentages within which we can be 95% confident that the actual rate of overblocking in that particular library falls. We note that these confidence intervals a.s.sume that the time period for which the study a.s.sessed the library"s internet logs const.i.tutes a random and representative sample.
To ill.u.s.trate the two different methods, consider a random sample of 1010 web sites taken from a library"s Internet use log, 10 of which fall within the category that a filter is intended to block (e.g., p.o.r.nography), and suppose that the filter incorrectly failed to block 2 of the 10 sites that it should have blocked and did not block any sites that should not have been blocked. The standard method of quantifying the rate of underblocking would divide the number of sites in the sample that the filter incorrectly failed to block by the number of sites in the sample that the filter should have blocked, yielding an underblocking rate in this example of 20%. Finnell"s study, however, calculated the underblocking rate by dividing the number of sites that the filter incorrectly failed to block by the total number of sites in the sample that were not blocked (whether correctly or incorrectly) yielding an underblocking rate in this example of only .2%.
According to Biek, the sample size that he used yielded a 95% confidence interval of plus or minus 3.11%.
Edelman is a Harvard University student and a systems administrator and multimedia specialist at the Berkman Center for Internet and Society at Harvard Law School. Despite Edelman"s young age, he has been doing consulting work on Internet-related issues for nine years, since he was in junior high school.
The archiving process in some cases took up to 48 hours from when the page was blocked.
In October 2001, Edelman published the results of his initial testing on his Web site. In February and March 2002 he repeated his testing of the 6,777 URLs originally found to be blocked by at least one of the blocking products, in order to determine whether and to what extent the blocking product vendors had corrected the mistakes that he publicized. Of those URLs blocked by N2H2 in the October 2001 testing, 55.10% remained blocked when tested by Edelman in March 2002. Of those URLs blocked by Websense in the October 2001 testing, 76.28% remained blocked when tested by Edelman in February 2002. Of those URLs blocked by SurfControl"s Cyber Patrol product, only 7.16% remained blocked, i.e., Cyber Patrol had unblocked almost 93% of the Web pages originally blocked. Because the results posted to his Web site were accessed by an employee of SurfControl (as evidenced by Edelman"s records of who was accessing his Web site), we infer that Cyber Patrol had determined that 93% of all 6,777 pages, or 6,302 Web pages, were originally wrongly blocked by the product.
Two other expert witnesses reviewed subsets of the list of Web pages that Edelman compiled. Dr. Michael T. Ryan, Director of the Rare Book and Ma.n.u.script Library and of the Center for Electronic Text and Image at the University of Pennsylvania, reviewed a list of 204 sites that Edelman forwarded to him in order to determine their appropriateness and usefulness in the library setting. Because the sites that Ryan reviewed were not selected randomly (i.e., they were chosen by plaintiffs"
counsel), his study says little about the character of the set of 6,777 sites that Edelman compiled, or the total amount of overblocking by the four filtering programs that Edelman used.
Anne Lipow, a practicing librarian for more than 30 years and the director of a library consulting firm, also reviewed the same list of 204 URLs from the set that Edelman had collected for their appropriateness for a library"s collection. She categorized sites in four different levels according to their appropriateness for a public library"s collection. Again, because these URLs were not selected randomly, Lipow"s study is not particularly relevant to the total set that Edelman compiled, or to the total amount of overblocking by the four filtering programs that Edelman used.
Although the methodology used to select the list of Web pages that was forwarded to Ryan and Lipow is problematic, Ryan"s and Lipow"s testimony established that many of the erroneously blocked sites that Edelman identified would be useful and appropriate sources of information for library patrons.
All of the reviewers that Janes recruited had some relevant experience in library reference services or library collection development. Janes divided the reviewers into two groups, a group of 11 less experienced reviewers, and a group of five more experienced reviewers. Janes a.s.signed the less experienced group to do a first-round review with the purpose of identifying the most obviously overblocked sites. The more experienced group was to review the remaining sites (i.e., those that were not obviously overblocked) and to make final decisions regarding these sites.
In the first round, each person evaluated two sets of around 80 sites, and each group was evaluated by two different people.
Each set of sites included the following instructions:
Look carefully at each of the Web sites on the list. Please make a notation of any site that appears to meet any of the following criteria:
a. Contains information similar to that already found in libraries,
or
b. Contains information a librarian would want in the library if s/he had unlimited funds to purchase information and unlimited shelf s.p.a.ce,
or
c. You would be willing to refer a patron (of any age) to the site if the patron appeared at a reference desk seeking information about the subject of the site. For this last criterion, we recognize that you might not refer a young child to a Calculus site just because it would not be useful to that child, but you should ignore that factor. Informational sites, such as a Calculus site, should be noted. A site that is purely erotica should not be noted.
Sites that received "Yes" votes from both reviewers were determined to be of sufficient interest in a library context and removed from further a.n.a.lysis. Sites receiving one or two "No"
votes would go to the next round. In the first round, 243 sites received "Yes" votes from both reviewers, while 456 sites received one or more "No" votes or could not be found. These 456 sites were sent forward to the second round of judging.
The instructions for the second-round reviewers were the same as those given to the first-round reviewers, except that in section c, the following sentence was added: "Sites that have a commercial purpose should be included here if they might be of use or interest to someone wishing to buy the product or service or doing research on commercial behavior on the Internet, much as most libraries include the Yellow Pages in their collections."
The second round of review produced the following results: 60 sites could not be found (due to broken links, 404 "not found"
errors, domain for sale messages, etc.), 231 sites were judged "Yes," and 165 judged "No."
Although it was not proffered as evidence in this trial, (and hence we do not rely on it to inform our findings), we note that Youth, p.o.r.nography, and the Internet, a congressionally commissioned study by the National Research Council, a division of the National Academies of Science, see Pub. L. 105-314, t.i.tle X, Sec. 901, comes to a conclusion similar to the one that we reach regarding the effectiveness of Internet filters. The commission concludes that:
All filtersthose of today and for the foreseeable futuresuffer (and will suffer) from some degree of overblocking (blocking content that should be allowed through) and some degree of underblocking (pa.s.sing content that should not be allowed through). While the extent of overblocking and underblocking will vary with the product (and may improve over time), underblocking and overblocking result from numerous sources, including the variability in the perspectives that humans bring to the task of judging content.
Youth, p.o.r.nography, and the Internet (d.i.c.k Thornburgh & Herbert S. Lin, eds., 2002), available at we find that the plaintiff public libraries are funded and controlled by state and local governments, they are state actors, subject to the constraints of the First Amendment, as incorporated by the Due Process Clause of the Fourteenth Amendment.
The Supreme Court has recognized that the First Amendment encompa.s.ses not only the right to speak, but also the right to receive information. See Reno v. ACLU, 521 U.S. 844, 874 (1997) (invalidating a statute because it "effectively suppresses a large amount of speech that adults have a const.i.tutional right to receive and to address to one another"); Stanley v. Georgia, 394 U.S. 557, 564 (1969) ("[The] right to receive information and ideas, regardless of their social worth . . . is fundamental to our free society."); see also Bd. of Educ. 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.").
Indeed, if the First Amendment subjected to strict scrutiny the government"s decision to dedicate a forum to speech whose content the government judges to be particularly valuable, many of our public inst.i.tutions of culture would cease to exist in their current form:
From here on out, the National Gallery in Washington, D.C., for example, would be required to display the art of all would-be artists on a first-come-first-served basis and would not be able to exercise any content control over its collection through evaluations of quality. Such a conclusion, of course, strikes us as absurd, but that is only because we feel that the government should be free to establish public cultural inst.i.tutions guided by standards such as "quality."
While the First Amendment articulates a deep fear of government intervention in the marketplace of ideas (because of the risk of distortion), it also seems prepared to permit state-sponsored and -supported cultural inst.i.tutions that exercise considerable control over which art to fund, which pictures to hang, and which courses to teach. That these choices necessarily involve judgments about favored and disfavored content judgments clearly prohibited in the realm of censorship is indisputable.
Lee C. Bollinger, Public Inst.i.tutions of Culture and the First Amendment: The New Frontier, 63 U. Cin. L. Rev. 1103, 1110-15 (1995).
In both of these cases, the taxation scheme at issue effectively subsidized a vast range of publications, and singled out for penalty only a handful of speakers. See Arkansas Writers" Project, 460 U.S. at 228-29 (noting that "selective taxation of the press . . . [by] targeting individual members of the press poses a particular danger of abuse by the State"
and explaining that "this case involves a more disturbing use of selective taxation than Minneapolis Star, because the basis on which Arkansas differentiates between magazines is particularly repugnant to First Amendment principles: a magazine"s tax status depends entirely on its content"); Minneapolis Star, 460 U.S. at 591 ("Minnesota"s ink and paper tax violates the First Amendment not only because it singles out the press, but also because it targets a small group of newspapers."); see also Turner Broad.
Sys., Inc. v. FCC, 512 U.S. 622, 660 (1994) ("The taxes invalidated in Minneapolis Star and Arkansas Writers" Project . .
. targeted a small number of speakers, and thus threatened to distort the market for ideas.") (internal quotation marks and citation omitted).
[P]atrons at a library do not have the right to make editorial decisions regarding the availability of certain material. It is the exclusive authority of the library to make affirmative decisions regarding what books, magazines, or other material is placed on library shelves, or otherwise made available to patrons. Libraries impose many restrictions on the use of their systems which demonstrate that the content of the library"s offerings are not determined by the general public.
S. Rep. No. 106-141, at 8-9 (1999).
In distinguishing restrictions on public libraries" print collections from restrictions on the provision of Internet access, we do not rely on the rationale adopted in Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 2 F.
Supp. 2d 783 (E.D. Va. 1998). The Loudoun Court reasoned that a library"s decision to block certain Web sites fundamentally differs from its decision to carry certain books but not others, in that unlike the money and shelf s.p.a.ce consumed by the library"s provision of print materials, "no appreciable expenditure of library time or resources is required to make a particular Internet publication available" once the library has acquired Internet access. Id. at 793-94.
We disagree. Nearly every librarian who testified at trial stated that patrons" demand for Internet access exceeds the library"s supply of Internet terminals. Under such circ.u.mstances, every time library patrons visit a Web site, they deny other patrons waiting to use the terminal access to other Web sites. Just as the scarcity of a library"s budget and shelf s.p.a.ce constrains a library"s ability to provide its patrons with unrestricted access to print materials, the scarcity of time at Internet terminals constrains libraries" ability to provide patrons with unrestricted Internet access:
The same budget concerns constraining the number of books that libraries can offer also limits the number of terminals, Internet accounts, and speed of access links that can be purchased, and thus the number of Web pages that patrons can view. This is clear to anyone who has been denied access to a Website because no terminal was unoccupied.