Children\'s Internet Protection Act (CIPA) Ruling

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

AMERICAN LIBRARY ASSOCIATION, : 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

Before: BECKER, Chief Circuit Judge,
FULLAM and BARTLE, District Judges.

OPINION OF THE COURT

May 31, 2002

Becker, Chief Circuit Judge

CONTENTS

I. Preliminary Statement
II. Findings of Fact
A. Statutory Framework
1. Nature and Operation of the E-rate and LSTA Programs
2. CIPA
a. CIPA's Amendments to the E-rate Program
b. CIPA's Amendments to the LSTA Program
B. Identity of the Plaintiffs
1. Library and Library Association Plaintiffs
2. Patron and Patron Association Plaintiffs
3. Web Publisher Plaintiffs
C. The Internet
1. Background
2. The Indexable Web, the "Deep Web"; Their Size and
Rates of Growth and Change
3. The Amount of Sexually Explicit Material on the Web
D. American Public Libraries
1. The Mission of Public Libraries, and Their
Reference and Collection Development Practices
2. The Internet in Public Libraries
a. Internet Use Policies in Public Libraries
b. Methods for Regulating Internet Use
E. Internet Filtering Technology
1. What Is Filtering Software, Who Makes It, and What Does It Do?
2. The Methods that Filtering Companies Use to
Compile Category Lists
a. The "Harvesting" Phase
b. The "Winnowing" or Categorization Phase
c. The Process for "Re-Reviewing" Web Pages
After Their Initial Categorization
3. The Inherent Tradeoff Between Overblocking and
Underblocking
4. Attempts to Quantify Filtering Programs' Rates of
Over- and Underblocking
5. Methods of Obtaining Examples of Erroneously
Blocked Web Sites
6. Examples of Erroneously Blocked Web Sites
7. Conclusion: The Effectiveness of Filtering Programs
III. Analytic Framework for the Opinion: The Centrality of Dole
and the Role of the Facial Challenge
IV. Level of Scrutiny Applicable to Content-based Restrictions
on Internet Access in Public Libraries
A. Overview of Public Forum Doctrine
B. Contours of the Relevant Forum: the Library's
Collection as a Whole or the Provision of Internet Access?
C. Content-based Restrictions in Designated Public Fora
D. Reasons for Applying Strict Scrutiny
1. Selective Exclusion From a "Vast Democratic Forum"
2. Analogy to Traditional Public Fora
V. Application of Strict Scrutiny
A. State Interests
1. Preventing the Dissemination of Obscenity, Child
Pornography, and Material Harmful to Minors
2. Protecting the Unwilling Viewer
3. Preventing Unlawful or Inappropriate Conduct
4. Summary
B. Narrow Tailoring
C. Less Restrictive Alternatives
D. Do CIPA's Disabling Provisions Cure the Defect?
VI. Conclusion; Severability
FOOTNOTES

1. Preliminary Statement

This case challenges an act of Congress that makes the use
of filtering software by public libraries a condition of the
receipt of federal funding. The Internet, as is well known, is a
vast, interactive medium based on a decentralized network of
computers around the world. Its most familiar feature is the
World Wide Web (the "Web"), a network of computers known as
servers that provide content to users. The Internet provides
easy access to anyone who wishes to provide or distribute
information to a worldwide audience; it is used by more than 143
million Americans. Indeed, much of the world's knowledge
accumulated over centuries is available to Internet users almost
instantly. Approximately 10% of the Americans who use the
Internet access it at public libraries. And approximately 95% of
all public libraries in the United States provide public access
to the Internet.

While the beneficial effect of the Internet in expanding the
amount of information available to its users is self-evident,
its low entry barriers have also led to a perverse result –
facilitation of the widespread dissemination of hardcore
pornography within the easy reach not only of adults who have
every right to access it (so long as it is not legally obscene or
child pornography), but also of children and adolescents to whom
it may be quite harmful. The volume of pornography on the
Internet is huge, and the record before us demonstrates that
public library patrons of all ages, many from ages 11 to 15, have
regularly sought to access it in public library settings. There
are more than 100,000 pornographic Web sites that can be accessed
for free and without providing any registration information, and
tens of thousands of Web sites contain child pornography.
Libraries have reacted to this situation by utilizing a
number of means designed to insure that patrons avoid illegal
(and unwanted) content while also enabling patrons to find the
content they desire. Some libraries have trained patrons in how
to use the Internet while avoiding illegal content, or have
directed their patrons to "preferred" Web sites that librarians
have reviewed. Other libraries have utilized such devices as
recessing the computer monitors, installing privacy screens, and
monitoring implemented by a "tap on the shoulder" of patrons
perceived to be offending library policy. Still others, viewing
the foregoing approaches as inadequate or uncomfortable (some
librarians do not wish to confront patrons), have purchased
commercially available software that blocks certain categories of
material deemed by the library board as unsuitable for use in
their facilities. Indeed, 7% of American public libraries use
blocking software for adults. Although such programs are
somewhat effective in blocking large quantities of pornography,
they are blunt instruments that not only "underblock," i.e., fail
to block access to substantial amounts of content that the
library boards wish to exclude, but also, central to this
litigation, "overblock," i.e., block access to large quantities
of material that library boards do not wish to exclude and that
is constitutionally protected.

Most of the libraries that use filtering software seek to
block sexually explicit speech. While most libraries include in
their physical collection copies of volumes such as The Joy of
Sex and The Joy of Gay Sex, which contain quite explicit
photographs and descriptions, filtering software blocks large
quantities of other, comparable information about health and
sexuality that adults and teenagers seek on the Web. One
teenager testified that the Internet access in a public library
was the only venue in which she could obtain information
important to her about her own sexuality. Another library patron
witness described using the Internet to research breast cancer
and reconstructive surgery for his mother who had breast surgery.
Even though some filtering programs contain exceptions for
health and education, the exceptions do not solve the problem of
overblocking constitutionally protected material. Moreover, as
we explain below, the filtering software on which the parties
presented evidence in this case overblocks not only information
relating to health and sexuality that might be mistaken for
pornography or erotica, but also vast numbers of Web pages and
sites that could not even arguably be construed as harmful or
inappropriate for adults or minors.

The Congress, sharing the concerns of many library boards,
enacted the Children's Internet Protection Act ("CIPA"), Pub. L.
No. 106-554, which makes the use of filters by a public library a
condition of its receipt of two kinds of subsidies that are
important (or even critical) to the budgets of many public
libraries – grants under the Library Services and Technology Act,
20 U.S.C. Sec. 9101 et seq. ("LSTA"), and so-called "E-rate
discounts" for Internet access and support under the
Telecommunications Act, 47 U.S.C. Sec. 254. LSTA grant funds are
awarded, inter alia, in order to: (1) assist libraries in
accessing information through electronic networks, and (2)
provide targeted library and information services to persons
having difficulty using a library and to underserved and rural
communities, including children from families with incomes below
the poverty line. E-rate discounts serve the similar purpose of
extending Internet access to schools and libraries in low-income
communities. CIPA requires that libraries, in order to receive
LSTA funds or E-rate discounts, certify that they are using a
"technology protection measure" that prevents patrons from
accessing "visual depictions" that are "obscene," "child
pornography," or in the case of minors, "harmful to minors." 20
U.S.C. Sec. 9134(f)(1)(A) (LSTA); 47 U.S.C. Sec. 254(h)(6)(B) & (C) (E-
rate).

The plaintiffs, a group of libraries, library associations,
library patrons, and Web site publishers, brought this suit
against the United States and others alleging that CIPA is
facially unconstitutional because: (1) it induces public
libraries to violate their patrons' First Amendment rights
contrary to the requirements of South Dakota v. Dole, 483 U.S.
203 (1987); and (2) it requires libraries to relinquish their
First Amendment rights as a condition on the receipt of federal
funds and is therefore impermissible under the doctrine of
unconstitutional conditions. In arguing that CIPA will induce
public libraries to violate the First Amendment, the plaintiffs
contend that given the limits of the filtering technology, CIPA's
conditions effectively require libraries to impose content-based
restrictions on their patrons' access to constitutionally
protected speech. According to the plaintiffs, these content-
based restrictions are subject to strict scrutiny under public
forum doctrine, see Rosenberger v. Rector & Visitors of Univ. of
Va., 515 U.S. 819, 837 (1995), and are therefore permissible only
if they are narrowly tailored to further a compelling state
interest and no less restrictive alternatives would further that
interest, see Reno v. ACLU, 521 U.S. 844, 874 (1997). The
government responds that CIPA will not induce public libraries to
violate the First Amendment, since it is possible for at least
some public libraries to constitutionally comply with CIPA's
conditions. Even if some libraries' use of filters might violate
the First Amendment, the government submits that CIPA can be
facially invalidated only if it is impossible for any public
library to comply with its conditions without violating the First
Amendment.

Pursuant to CIPA, a three-judge Court was convened to try
the issues. Pub. L. No. 106-554. Following an intensive period
of discovery on an expedited schedule to allow public libraries
to know whether they need to certify compliance with CIPA by July
1, 2002, to receive subsidies for the upcoming year, the Court
conducted an eight-day trial at which we heard 20 witnesses, and
received numerous depositions, stipulations and documents. The
principal focus of the trial was on the capacity of currently
available filtering software. The plaintiffs adduced substantial
evidence not only that filtering programs bar access to a
substantial amount of speech on the Internet that is clearly
constitutionally protected for adults and minors, but also that
these programs are intrinsically unable to block only illegal
Internet content while simultaneously allowing access to all
protected speech.
As our extensive findings of fact reflect, the plaintiffs
demonstrated that thousands of Web pages containing protected
speech are wrongly blocked by the four leading filtering
programs, and these pages represent only a fraction of Web pages
wrongly blocked by the programs. The plaintiffs' evidence
explained that the problems faced by the manufacturers and
vendors of filtering software are legion. The Web is extremely
dynamic, with an estimated 1.5 million new pages added every day
and the contents of existing Web pages changing very rapidly.
The category lists maintained by the blocking programs are
considered to be proprietary information, and hence are
unavailable to customers or the general public for review, so
that public libraries that select categories when implementing
filtering software do not really know what they are blocking.

There are many reasons why filtering software suffers from
extensive over- and underblocking, which we will explain below in
great detail. They center on the limitations on filtering
companies' ability to: (1) accurately collect Web pages that
potentially fall into a blocked category (e.g., pornography); (2)
review and categorize Web pages that they have collected; and (3)
engage in regular re-review of Web pages that they have
previously reviewed. These failures spring from constraints on
the technology of automated classification systems, and the
limitations inherent in human review, including error,
misjudgment, and scarce resources, which we describe in detail
infra at 58-74. One failure of critical importance is that the
automated systems that filtering companies use to collect Web
pages for classification are able to search only text, not
images. This is crippling to filtering companies' ability to
collect pages containing "visual depictions" that are obscene,
child pornography, or harmful to minors, as CIPA requires. As
will appear, we find that it is currently impossible, given the
Internet's size, rate of growth, rate of change, and
architecture, and given the state of the art of automated
classification systems, to develop a filter that neither
underblocks nor overblocks a substantial amount of speech.

The government, while acknowledging that the filtering
software is imperfect, maintains that it is nonetheless quite
effective, and that it successfully blocks the vast majority of
the Web pages that meet filtering companies' category definitions
(e.g., pornography). The government contends that no more is
required. In its view, so long as the filtering software
selected by the libraries screens out the bulk of the Web pages
proscribed by CIPA, the libraries have made a reasonable choice
which suffices, under the applicable legal principles, to pass
constitutional muster in the context of a facial challenge.
Central to the government's position is the analogy it advances
between Internet filtering and the initial decision of a library
to determine which materials to purchase for its print
collection. Public libraries have finite budgets and must make
choices as to whether to purchase, for example, books on
gardening or books on golf. Such content-based decisions, even
the plaintiffs concede, are subject to rational basis review and
not a stricter form of First Amendment scrutiny. In the
government's view, the fact that the Internet reverses the
acquisition process and requires the libraries to, in effect,
purchase the entire Internet, some of which (e.g., hardcore
pornography) it does not want, should not mean that it is
chargeable with censorship when it filters out offending
material.
The legal context in which this extensive factual record is
set is complex, implicating a number of constitutional doctrines,
including the constitutional limitations on Congress's spending
clause power, the unconstitutional conditions doctrine, and
subsidiary to these issues, the First Amendment doctrines of
prior restraint, vagueness, and overbreadth. There are a number
of potential entry points into the analysis, but the most logical
is the spending clause jurisprudence in which the seminal case is
South Dakota v. Dole, 483 U.S. 203 (1987). Dole outlines four
categories of constraints on Congress's exercise of its power
under the Spending Clause, but the only Dole condition disputed
here is the fourth and last, i.e., whether CIPA requires
libraries that receive LSTA funds or E-rate discounts to violate
the constitutional rights of their patrons. As will appear, the
question is not a simple one, and turns on the level of scrutiny
applicable to a public library's content-based restrictions on
patrons' Internet access. Whether such restrictions are subject
to strict scrutiny, as plaintiffs contend, or only rational basis
review, as the government contends, depends on public forum
doctrine.

The government argues that, in providing Internet access,
public libraries do not create a public forum, since public
libraries may reserve the right to exclude certain speakers from
availing themselves of the forum. Accordingly, the government
contends that public libraries' restrictions on patrons' Internet
access are subject only to rational basis review.
Plaintiffs respond that the government's ability to restrict
speech on its own property, as in the case of restrictions on
Internet access in public libraries, is not unlimited, and that
the more widely the state facilitates the dissemination of
private speech in a given forum, the more vulnerable the state's
decision is to restrict access to speech in that forum. We agree
with the plaintiffs that public libraries' content-based
restrictions on their patrons' Internet access are subject to
strict scrutiny. In providing even filtered Internet access,
public libraries create a public forum open to any speaker around
the world to communicate with library patrons via the Internet on
a virtually unlimited number of topics. Where the state provides
access to a "vast democratic forum[]," Reno v. ACLU, 521 U.S.
844, 868 (1997), open to any member of the public to speak on
subjects "as diverse as human thought," id. at 870 (internal
quotation marks and citation omitted), the state's decision
selectively to exclude from the forum speech whose content the
state disfavors is subject to strict scrutiny, as such exclusions
risk distorting the marketplace of ideas that the state has
facilitated. Application of strict scrutiny finds further
support in the extent to which public libraries' provision of
Internet access uniquely promotes First Amendment values in a
manner analogous to traditional public fora such as streets,
sidewalks, and parks, in which content-based restrictions are
always subject to strict scrutiny.

Under strict scrutiny, a public library's use of filtering
software is permissible only if it is narrowly tailored to
further a compelling government interest and no less restrictive
alternative would serve that interest. We acknowledge that use
of filtering software furthers public libraries' legitimate
interests in preventing patrons from accessing visual depictions
of obscenity, child pornography, or in the case of minors,
material harmful to minors. Moreover, use of filters also helps
prevent patrons from being unwillingly exposed to patently
offensive, sexually explicit content on the Internet.

We are sympathetic to the position of the government,
believing that it would be desirable if there were a means to
ensure that public library patrons could share in the
informational bonanza of the Internet while being insulated from
materials that meet CIPA's definitions, that is, visual
depictions that are obscene, child pornography, or in the case of
minors, harmful to minors. Unfortunately this outcome, devoutly
to be wished, is not available in this less than best of all
possible worlds. No category definition used by the blocking
programs is identical to the legal definitions of obscenity,
child pornography, or material harmful to minors, and, at all
events, filtering programs fail to block access to a substantial
amount of content on the Internet that falls into the categories
defined by CIPA. As will appear, we credit the testimony of
plaintiffs' expert Dr. Geoffrey Nunberg that the blocking
software is (at least for the foreseeable future) incapable of
effectively blocking the majority of materials in the categories
defined by CIPA without overblocking a substantial amount of
materials. Nunberg's analysis was supported by extensive record
evidence. As noted above, this inability to prevent both
substantial amounts of underblocking and overblocking stems from
several sources, including limitations on the technology that
software filtering companies use to gather and review Web pages,
limitations on resources for human review of Web pages, and the
necessary error that results from human review processes.

Because the filtering software mandated by CIPA will block
access to substantial amounts of constitutionally protected
speech whose suppression serves no legitimate government
interest, we are persuaded that a public library's use of
software filters is not narrowly tailored to further any of these
interests. Moreover, less restrictive alternatives exist that
further the government's legitimate interest in preventing the
dissemination of obscenity, child pornography, and material
harmful to minors, and in preventing patrons from being
unwillingly exposed to patently offensive, sexually explicit
content. To prevent patrons from accessing visual depictions
that are obscene and child pornography, public libraries may
enforce Internet use policies that make clear to patrons that the
library's Internet terminals may not be used to access illegal
speech. Libraries may then impose penalties on patrons who
violate these policies, ranging from a warning to notification of
law enforcement, in the appropriate case. Less restrictive
alternatives to filtering that further libraries' interest in
preventing minors from exposure to visual depictions that are
harmful to minors include requiring parental consent to or
presence during unfiltered access, or restricting minors'
unfiltered access to terminals within view of library staff.
Finally, optional filtering, privacy screens, recessed monitors,
and placement of unfiltered Internet terminals outside of sight-
lines provide less restrictive alternatives for libraries to
prevent patrons from being unwillingly exposed to sexually
explicit content on the Internet.
In an effort to avoid the potentially fatal legal
implications of the overblocking problem, the government falls
back on the ability of the libraries, under CIPA's disabling
provisions, see CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(3)),
CIPA Sec.1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(D)), to unblock
a site that is patently proper yet improperly blocked. The
evidence reflects that libraries can and do unblock the filters
when a patron so requests. But it also reflects that requiring
library patrons to ask for a Web site to be unblocked will deter
many patrons because they are embarrassed, or desire to protect
their privacy or remain anonymous. Moreover, the unblocking may
take days, and may be unavailable, especially in branch
libraries, which are often less well staffed than main libraries.
Accordingly, CIPA's disabling provisions do not cure the
constitutional deficiencies in public libraries' use of Internet
filters.

Under these circumstances we are constrained to conclude
that the library plaintiffs must prevail in their contention that
CIPA requires them to violate the First Amendment rights of their
patrons, and accordingly is facially invalid, even under the
standard urged on us by the government, which would permit us to
facially invalidate CIPA only if it is impossible for a single
public library to comply with CIPA's conditions without violating
the First Amendment. In view of the limitations inherent in the
filtering technology mandated by CIPA, any public library that
adheres to CIPA's conditions will necessarily restrict patrons'
access to a substantial amount of protected speech, in violation
of the First Amendment. Given this conclusion, we need not reach
plaintiffs' arguments that CIPA effects a prior restraint on
speech and is unconstitutionally vague. Nor do we decide their
cognate unconstitutional conditions theory, though for reasons
explained infra at note 36, we discuss the issues raised by that
claim at some length.
For these reasons, we will enter an Order 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.II.
Findings of Fact
1. Statutory Framework
1. Nature and Operation of the E-rate and LSTA
Programs
In the Telecommunications Act of 1996 ("1996 Act"), Congress
directed the Federal Communications Commission ("FCC") to take
the steps necessary to establish a system of support mechanisms
to ensure the delivery of affordable telecommunications service
to all Americans. This system, referred to as "universal
service," is codified in section 254 of the Communications Act of
1934, as amended by the 1996 Act. See 47 U.S.C. Sec. 254. Congress
specified several groups as beneficiaries of the universal
service support mechanism, including consumers in high-cost
areas, low-income consumers, schools and libraries, and rural
health care providers. See 47 U.S.C. Sec. 254(h)(1). The extension
of universal service to schools and libraries in section 254(h)
is commonly referred to as the Schools and Libraries Program, or
"E-rate" Program.

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