The burden of requiring library patrons to ask permission to view Web sites whose content is disfavored resembles the burden that the Supreme Court found unacceptable in Denver, which invalidated a federal law requiring cable systems operators to block subscribers" access to channels containing s.e.xually explicit programming, unless subscribers requested unblocking in advance. The Court reasoned that "[t]hese restrictions will prevent programmers from broadcasting to viewers who select programs day by day (or, through "surfing," minute by minute) . .
. ." Denver, 518 U.S. at 754. Similarly, in Fabulous a.s.sociates, the Third Circuit explained that a law preventing adults from listening to s.e.xually explicit phone messages unless they applied in advance for access to such messages would burden adults" receipt of const.i.tutionally protected speech, given consumers" tendency to purchase such speech on impulse. See Fabulous a.s.socs., 896 F.2d at 785 (noting that officers of two companies that sell access to s.e.xually explicit recorded phone messages "testified that it is usually "impulse callers" who utilize these types of services, and that people will not call if they must apply for an access code").
In sum, in many cases, as we have noted above, library patrons who have been wrongly denied access to a Web site will decline to ask the library to disable the filters so that the patron can access the Web site. Moreover, even if patrons requested unblocking every time a site is erroneously blocked, and even if library staff granted every such request, a public library"s use of blocking software would still impermissibly burden patrons" access to speech based on its content. The First Amendment jurisprudence of the Supreme Court and the Third Circuit makes clear that laws imposing content-based burdens on access to speech are no less offensive to the First Amendment than laws imposing content-based prohibitions on speech: It is of no moment that the statute does not impose a complete prohibition. The distinction between laws burdening and laws banning speech is but a matter of degree. The Government"s content-based burdens must satisfy the same rigorous scrutiny as its content-based bans. . . . When the purpose and design of a statute is to regulate speech by reason of its content, special consideration or lat.i.tude is not afforded to the Government merely because the law can somehow be described as a burden rather than outright suppression.
United States v. Playboy Entm"t Group, Inc., 529 U.S. 803, 812, 826 (2000) (invalidating a federal law requiring cable television operators to limit the transmission of s.e.xually explicit programming to the hours between 10:00 p.m. and 6:00 a.m.); see also Fabulous a.s.socs., 896 F.2d at 785 ("[H]ere . . . there is no outright prohibition of indecent communication. However, the First Amendment protects against government inhibition as well as prohibition.") (internal quotation marks and citation omitted).
Even if c.i.p.a"s disabling provisions could be perfectly implemented by library staff every time patrons request access to an erroneously blocked Web site, we hold that the content-based burden that the library"s use of software filters places on patrons" access to speech suffers from the same const.i.tutional deficiencies as a complete ban on patrons" access to speech that was erroneously blocked by filters, since patrons will often be deterred from asking the library to unblock a site and patron requests cannot be immediately reviewed. We therefore hold that c.i.p.a"s disabling provisions fail to cure c.i.p.a"s lack of narrow tailoring.
5. Conclusion; Severability
Based upon the foregoing discussion, we hold that a public library"s content-based restriction on patrons" access to speech on the Internet is subject to strict scrutiny. Every item in a library"s print collection has been selected because library staff, or a party to whom staff delegates the decision, deems the content to be particularly valuable. In contrast, the Internet, as a forum, is open to any member of the public to speak, and hence, even when a library provides filtered Internet access, it creates a public forum in which the vast majority of the speech has been reviewed by neither librarians nor filtering companies.
Under public forum doctrine, where the state creates such a forum open to any member of the public to speak on an unlimited number of subjects, the state"s decision selectively to exclude certain speech on the basis of its content, is subject to strict scrutiny, since such exclusions risk distorting the marketplace of ideas that the state has created.
Application of strict scrutiny to public libraries" content- based restrictions on their patrons" access to the Internet finds further support in the a.n.a.logy to traditional public fora, such as sidewalks, parks, and squares, in which content-based restrictions on speech are always subject to strict scrutiny.
Like these traditional public fora, Internet access in public libraries uniquely promotes First Amendment values, by offering low barriers to entry to speakers and listeners. The content of speech on the Internet is as diverse as human thought, and the extent to which the Internet promotes First Amendment values is evident from the sheer breadth of speech that this new medium enables.
To survive strict scrutiny, a public library"s use of filtering software must be narrowly tailored to further a compelling state interest, and there must be no less restrictive alternative that could effectively further that interest. We find that, given the crudeness of filtering technology, any technology protection measure mandated by c.i.p.a will necessarily block access to a substantial amount of speech whose suppression serves no legitimate government interest. This lack of narrow tailoring cannot be cured by c.i.p.a"s disabling provisions, because patrons will often be deterred from asking the library"s permission to access an erroneously blocked Web page, and anonymous requests for unblocking cannot be acted on without delaying the patron"s access to the blocked Web page, thereby impermissibly burdening access to speech on the basis of its content.
Moreover, less restrictive alternatives exist to further a public library"s legitimate interests in preventing its computers from being used to access obscenity, child p.o.r.nography, or in the case of minors, material harmful to minors, and in preventing patrons from being unwillingly exposed to patently offensive, s.e.xually explicit speech. Libraries may use a variety of means to monitor their patrons" use of the Internet and impose sanctions on patrons who violate the library"s Internet use policy. To protect minors from material harmful to minors, libraries could grant minors unfiltered access only if accompanied by a parent, or upon parental consent, or could require minors to use unfiltered terminals in view of library staff. To prevent patrons from being unwillingly exposed to offensive, s.e.xually explicit content, libraries can offer patrons the option of using blocking software, can place unfiltered terminals outside of patrons" sight lines, and can use privacy screens and recessed monitors. While none of these less restrictive alternatives are perfect, the government has failed to show that they are significantly less effective than filtering software, which itself fails to block access to large amounts of speech that fall within the categories sought to be blocked.
In view of the severe limitations of filtering technology and the existence of these less restrictive alternatives, we conclude that it is not possible for a public library to comply with c.i.p.a without blocking a very substantial amount of const.i.tutionally protected speech, in violation of the First Amendment. Because this conclusion derives from the inherent limits of the filtering technology mandated by c.i.p.a, it holds for any library that complies with c.i.p.a"s conditions. Hence, even under the stricter standard of facial invalidity proposed by the government, which would require us to uphold c.i.p.a if only a single library can comply with c.i.p.a"s conditions without violating the First Amendment, we conclude that c.i.p.a is facially invalid, since it will induce public libraries, as state actors, to violate the First Amendment. Because we hold that c.i.p.a is invalid on these grounds, we need not reach the plaintiffs"
alternative theories that c.i.p.a is invalid as a prior restraint on speech and is unconst.i.tutionally vague. Nor need we decide whether c.i.p.a is invalid because it requires public libraries, as a condition on the receipt of federal funds, to relinquish their own First Amendment rights to provide the public with unfiltered Internet access, a theory that we nonetheless feel constrained to discuss (at length) in the margin.
Having determined that c.i.p.a violates the First Amendment, we would usually be required to determine whether c.i.p.a is severable from the remainder of the statutes governing LSTA and E-rate funding. Neither party, however, has advanced the argument that c.i.p.a is not severable from the remainder the Library Services and Technology Act and Communications Act of 1934 (the two statutes governing LSTA and E-rate funding, respectively), and at all events, we think that c.i.p.a is severable.
"The inquiry into whether a statute is severable is essentially an inquiry into legislative intent." Minn. v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999). "Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." Buckley v. Valeo, 424 U.S. 1, 108 (1976) (internal quotation marks and citation omitted). There is no doubt that if we were to strike c.i.p.a from the sections of the United States Code where it is currently codified, the remaining statutory sections, providing eligible public libraries with E- rate discounts and LSTA grants, would be fully operative as law.
Indeed, the LSTA and E-rate programs existed prior to the enactment of c.i.p.a in substantially the same form as they would exist were we to strike c.i.p.a and leave the rest of the programs intact.
The second question, whether Congress would in this case have chosen to repeal the LSTA and E-rate subsidy programs instead of continuing to fund them if it had known that c.i.p.a"s limitations on these programs were const.i.tutionally invalid, is less clear. c.i.p.a contains "separability" clauses that state that if any of its additions to the statutes governing the LSTA and E- rate programs are found to be unconst.i.tutional, Congress intended to effectuate as much of c.i.p.a"s amendments as possible. We interpret these clauses to mean, for example, that if a court were to find that c.i.p.a"s requirements are unconst.i.tutional with respect to adult patrons, but permissible with respect to minors, that Congress intended to have the court effectuate only the provisions with respect to minors. These separability clauses do not speak to the situation before us, however, where we have found that c.i.p.a is facially unconst.i.tutional in its entirety.
Nevertheless, the government has not pointed to anything in the legislative history or elsewhere to suggest that Congress intended to discontinue funding under the LSTA and E-rate programs unless it could effectuate c.i.p.a"s restrictions on the funding. And Congress"s decision, prior to c.i.p.a"s enactment, to subsidize Internet access through the LSTA and E-rate programs without such restrictions, counsels that we reach the opposite conclusion. At bottom, we think that it is unclear what Congress"s intent was on this point, and in the absence of such information, we exercise a presumption in favor of severability.
Regan v. Time, Inc., 468 U.S. 641, 653 (1984) ("[T]he presumption is in favor of severability."); cf. Velazquez v.
Legal Servs. Corp., 164 F.3d 757, 773 (2d Cir. 1999), aff"d 531 U.S. 533 (2001) (applying a presumption in favor of severability in the face of uncertainty whether Congress intended to fund the Legal Services Corporation even if a restriction on the funding was to be declared invalid).
For the foregoing reasons, we will enter a final judgment declaring Sections 1712(a)(2) and 1721(b) of the Children"s Internet Protection Act, codified at 20 U.S.C. Sec. 9134(f) and 47 U.S.C. Sec. 254(h)(6), respectively, to be facially invalid under the First Amendment and permanently enjoining the defendants from enforcing those provisions.
___________________________ Edward R. Becker, Chief Circuit Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AMERICAN LIBRARY a.s.sOCIATION, : CIVIL ACTION INC., et al. : : v. : : UNITED STATES, et al. : NO. 01-1303 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MULTNOMAH COUNTY PUBLIC : CIVIL ACTION LIBRARY, et al. : : v. : : UNITED STATES OF AMERICA, et al. : NO. 01-1322
ORDER
AND NOW, this day of May, 2002, based on the foregoing findings of fact and conclusions of law, it is hereby ORDERED that:
(1) judgment is entered in favor of the plaintiffs and against the defendants, declaring that 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), are facially invalid under the First Amendment to the United States Const.i.tution; and